U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:20-cv-02791-JPB-CCB

Jones et al v. Hill et al

Date Filed: 07/01/2020

Assigned to: Judge J. P. Boulee

Jury Demand: Defendant

Referred to: Magistrate Judge Christopher C. Bly

Nature of Suit: 550 Prisoner: Civil

Magistrate Judge J. Clay Fuller (Settlement) Rights

Cause: 42:1983 Prisoner Civil Rights

Jurisdiction: Federal Question

Plaintiff Rhonda Jones

represented by Brandon Jerel Buskey American Civil Liberties Union Foundation-NY 18th Floor 125 Broad St. New York, NY 10004 212-284-7364 Fax: 212-549-2654 Email: bbuskey@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David C. Fathi American Civil Liberties Union Foundation-DC 915 15th Street, N.W. Washington, DC 20005 202-548-6603 Email: dfathi@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jeremy Dakota Cutting Southern Center for Human Rights 60 Walton Street, NW Atlanta, GA 30303 404-688-1202 Email: ccutting@schr.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan Primerano Southern Center for Human Rights 60 Walton Street, NW Atlanta, GA 30303 404-688-1202 Email: rprimerano@schr.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah E. Geraghty Southern Center for Human Rights 60 Walton Street NW Atlanta, GA 30303 404-688-1202 Fax: 404-688-9440 Email: sgeraghty@schr.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L. Pevar American Civil Liberties Union 125 Broad Street Ste 17th Floor New York, NY 10004 860-570-9830 Email: spevar@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andres Martin Lopez-Delgado American Civil Liberties Union of Georgia 1100 Spring St NW Atlanta, GA 30309 732-666-3300 Email: adelgado@acluga.org ATTORNEY TO BE NOTICED
Kosha Shonyetta Tucker ACLU of Georgia -Atl 1100 Spring Street, NW P.O. Box 77208 Atlanta, GA 30309 770-303-8111 Fax: .

Plaintiff
Randolph Mitchell TERMINATED: 11/19/2020

Email: ktucker@acluga.org TERMINATED: 10/02/2020
L. Joseph Loveland , Jr. King & Spalding, LLP-ATL 37 37th Floor 1180 Peachtree St., NE Atlanta, GA 30309-3521 404-572-4783 Fax: 404-572-5140 Email: ljloveland@gmail.com ATTORNEY TO BE NOTICED
Robert W. Hunter American Civil Liberties Union Foundation-NY 18th Floor 125 Broad St. New York, NY 10004 929-237-8758 Email: rwhunter@aclu.org TERMINATED: 09/16/2020 PRO HAC VICE
Sean Young ACLU of Georgia Foundation 1100 Spring St. NW Suite 640 Atlanta, GA 30309 770-303-8111 Fax: 770-303-0060 Email: syoung@acluga.org ATTORNEY TO BE NOTICED
represented by Brandon Jerel Buskey (See above for address) LEAD ATTORNEY PRO HAC VICE
David C. Fathi (See above for address) LEAD ATTORNEY PRO HAC VICE
Jeremy Dakota Cutting

Plaintiff Michael Singleton

(See above for address) LEAD ATTORNEY
Ryan Primerano (See above for address) LEAD ATTORNEY
Sarah E. Geraghty (See above for address) LEAD ATTORNEY
Stephen L. Pevar (See above for address) LEAD ATTORNEY PRO HAC VICE
Andres Martin Lopez-Delgado (See above for address)
Kosha Shonyetta Tucker (See above for address) TERMINATED: 10/02/2020
L. Joseph Loveland , Jr. (See above for address) ATTORNEY TO BE NOTICED
Robert W. Hunter (See above for address) TERMINATED: 09/16/2020 PRO HAC VICE
Sean Young (See above for address) ATTORNEY TO BE NOTICED
represented by Brandon Jerel Buskey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David C. Fathi (See above for address) LEAD ATTORNEY

Plaintiff

PRO HAC VICE ATTORNEY TO BE NOTICED
Jeremy Dakota Cutting (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan Primerano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah E. Geraghty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L. Pevar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andres Martin Lopez-Delgado (See above for address) ATTORNEY TO BE NOTICED
Kosha Shonyetta Tucker (See above for address) TERMINATED: 10/02/2020
L. Joseph Loveland , Jr. (See above for address) ATTORNEY TO BE NOTICED
Robert W. Hunter (See above for address) TERMINATED: 09/16/2020 PRO HAC VICE
Sean Young (See above for address) ATTORNEY TO BE NOTICED

Barry Watkins on behalf of themselves and others similarly situated
V.

represented by Brandon Jerel Buskey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David C. Fathi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeremy Dakota Cutting (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan Primerano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah E. Geraghty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andres Martin Lopez-Delgado (See above for address) ATTORNEY TO BE NOTICED
Kosha Shonyetta Tucker (See above for address) TERMINATED: 10/02/2020
Robert W. Hunter (See above for address) TERMINATED: 09/16/2020 PRO HAC VICE
Sean Young (See above for address) ATTORNEY TO BE NOTICED

Defendant Victor Hill in his official capacity as Sheriff of Clayton County, Georgia
Defendant Roland Boehrer in his official capacity as Chief Deputy

represented by Jacob Loken Freeman Mathis & Gary, LLP -Atl Suite 1600 100 Galleria Parkway Atlanta, GA 30339-5948 770-818-0000 Email: jloken@fmglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arash A. Sabzevari Freeman Mathis & Gary, LLP 661 Forest Parkway Suite E Forest Park, GA 30297 404-366-1000 Fax: 404-361-3223 Email: asabzevari@fmglaw.com ATTORNEY TO BE NOTICED
Jack Reynolds Hancock Freeman Mathis & Gary, LLP 661 Forest Parkway Suite E Forest Park, GA 30297 404-717-0519 Email: jhancock@fmglaw.com ATTORNEY TO BE NOTICED
Janeen Elizabeth Smith Freeman Mathis & Gary, LLP -Atl Suite 1600 100 Galleria Parkway Atlanta, GA 30339-5948 678-996-9128 Fax: 770-937-9960 Email: jasmith@fmglaw.com ATTORNEY TO BE NOTICED
represented by Jacob Loken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Terrance Gibson in his official capacity as Jail Administrator
Defendant Kevin Thomas in his official capacity as Jail Security Operations Section Commander

Arash A. Sabzevari (See above for address) ATTORNEY TO BE NOTICED
Jack Reynolds Hancock (See above for address) ATTORNEY TO BE NOTICED
Janeen Elizabeth Smith (See above for address) ATTORNEY TO BE NOTICED
represented by Jacob Loken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arash A. Sabzevari (See above for address) ATTORNEY TO BE NOTICED
Jack Reynolds Hancock (See above for address) ATTORNEY TO BE NOTICED
Janeen Elizabeth Smith (See above for address) ATTORNEY TO BE NOTICED
represented by Jacob Loken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arash A. Sabzevari (See above for address) ATTORNEY TO BE NOTICED
Jack Reynolds Hancock (See above for address) ATTORNEY TO BE NOTICED

Defendant
Maurice Johnson in his official capacity as Jail Administrative Operations Section Commander

Janeen Elizabeth Smith (See above for address) ATTORNEY TO BE NOTICED
represented by Jacob Loken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arash A. Sabzevari (See above for address) ATTORNEY TO BE NOTICED
Jack Reynolds Hancock (See above for address) ATTORNEY TO BE NOTICED
Janeen Elizabeth Smith (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/01/2020
07/01/2020 07/02/2020

#

Docket Text

1 CLASS ACTION COMPLAINT AND PETITION FOR WRIT OF HABEAS CORPUS (request for injunctive relief found within) filed by Randolph Mitchell, Michael Singleton, Rhonda Jones, Barry Watkins. (Filing fee $400, receipt number AGANDC-9861789) (Attachments: # 1 Statement of Related Case, # 2 Civil Cover Sheet)(tmf) Please visit our website at http://www.gand.uscourts.gov/commonly-used-forms to obtain Pretrial Instructions and Pretrial Associated Forms which includes the Consent To Proceed Before U.S. Magistrate form. Modified on 7/2/2020 to edit text(tmf). (Entered: 07/02/2020)

2 Certificate of Interested Persons and Corporate Disclosure Statement by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (tmf) (Entered: 07/02/2020)

3 Electronic Summons Issued as to Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Attachments: # 1 Summons Gibson, # 2 Summons Hill, # 3 Summons Johnson, # 4 Summons Thomas)(tmf) (Entered: 07/02/2020)

07/02/2020
07/02/2020 07/02/2020 07/02/2020 07/02/2020
07/02/2020 07/09/2020
07/09/2020 07/09/2020 07/10/2020

4 GENERAL ORDER 20-01 Fourth Amendment IN RE: COURT OPERATIONS UNDERTHE EXIGENT CIRCUMSTANCES CREATED BY COVID-19 AND RELATED CORONAVIRUS Signed by Judge Thomas W. Thrash, Jr. on 7/1/2020. (tmf) (Entered: 07/02/2020)
Submission of 1 Complaint,, to District Judge Eleanor L. Ross. (tmf) (Entered: 07/02/2020)
5 NOTICE FROM THE COURT: INSTRUCTIONS FOR CIVIL CASES ASSIGNED TO THE HONORABLE ELEANOR L. ROSS. (mlb) (Entered: 07/02/2020)
Clerks Notation re 2 Certificate of Interested Persons/Corporate Disclosures by Rhonda Jones, Randolph Mitchell, Michael Singleton and Barry Watkins. Read and approved by District Judge Eleanor L. Ross. (mlb) (Entered: 07/02/2020)
6 NOTICE Of Filing by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins (Attachments: # 1 Exhibit A: Declarations of Named Plaintiffs Currently Incarcerated in the Clayton County Jail, # 2 Exhibit B: Redacted Declarations of People Currently Incarcerated in or Recently Released from the Clayton County Jail)(Cutting, Jeremy) (Entered: 07/02/2020)
7 MOTION to Certify Class with Brief In Support by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Attachments: # 1 Brief in Support of Plaintiffs' Motion to Certify Class)(Primerano, Ryan) (Entered: 07/02/2020)
8 ORDER: The Court DENIES Plaintiffs' request for preliminary injunctive relief. Furthermore, because Plaintiffs' Complaint seeks habeas corpus relief pursuant to 28 U.S.C. §§ 2241 and 2243, the Court DIRECTS the Clerk to refer this case to a Magistrate Judge pursuant to Standing Order 18-01. Signed by Judge Eleanor L. Ross on 7/9/2020. (jed) (Entered: 07/09/2020)
CASE REFERRED to Magistrate Judge Christopher C. Bly. (jed) (Entered: 07/09/2020)
Submission of 8 Order and 1 Complaint to Magistrate Judge Christopher C. Bly. (jed) (Entered: 07/09/2020)
9 MOTION for Leave to File Excess Pages with Brief In Support by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Primerano, Ryan) (Entered: 07/10/2020)

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FIFTH AMENDMENT TO GENERAL ORDER 20-01 RE:

10

COURT OPERATIONS UNDER THE EXIGENT

CIRCUMSTANCES CREATED BY COVID-19 AND

RELATED CORONAVIRUS. Signed by Judge Thomas W.

Thrash, Jr. on 7/10/2020 (mmc) (ADI) (Entered: 07/13/2020)

11 NOTICE of Appearance by Arash A. Sabzevari on behalf of Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas (Sabzevari, Arash) (Entered: 07/13/2020)

12 APPLICATION for Admission of David Fathi Pro Hac Vice (Application fee $ 150, receipt number AGANDC-9910935).by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Geraghty, Sarah) Documents for this entry are not available for viewing outside the courthouse. (Entered: 07/14/2020)

13 NOTICE of Appearance by Jack Reynolds Hancock on behalf of Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas (Hancock, Jack) (Entered: 07/14/2020)

14 APPLICATION for Admission of Stephen Pevar Pro Hac Vice (Application fee $ 150, receipt number AGANDC-9916491).by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Tucker, Kosha) Documents for this entry are not available for viewing outside the courthouse. (Entered: 07/15/2020)

15 APPLICATION for Admission of Robert W. Hunter Pro Hac Vice (Application fee $ 150, receipt number AGANDC-9916569).by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Tucker, Kosha) Documents for this entry are not available for viewing outside the courthouse. (Entered: 07/15/2020)

16 ORDER granting 9 Motion for Leave to File Excess Pages. Plaintiffs may file an additional ten (10) pages - for a total of thirty-five (35) pages - to its forthcoming Motion for Preliminary Injunction. Signed by Judge Eleanor L. Ross on 7/15/2020. (jpk) (Entered: 07/15/2020)

APPROVAL by Clerks Office re: 12 APPLICATION for Admission of David Fathi Pro Hac Vice (Application fee $ 150, receipt number AGANDC-9910935).. Attorney David C. Fathi added appearing on behalf of Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins (nmb) (Entered: 07/16/2020)

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MINUTE ORDER (by docket entry only) GRANTING 12 Application for Admission Pro Hac Vice of David C. Fathi. Approved by District Judge Eleanor L. Ross on 7/16/20. If the applicant does not have CM/ECF access in the Northern District of Georgia already, they must request access at http://pacer.gov. If they have electronically filed in this district in a previous case, please omit this step.(mlb) (Entered: 07/16/2020)
Clerk's Certificate of Mailing (via email) to Attorney David C. Fathi as to Rhonda Jones, Randolph Mitchell, Michael Singleton and Barry Watkins regarding Order on Application for Admission PHV. (mlb) (Entered: 07/16/2020)
17 APPLICATION for Admission of Brandon Buskey Pro Hac Vice (Application fee $ 150, receipt number AGANDC-9924715).by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Tucker, Kosha) Documents for this entry are not available for viewing outside the courthouse. (Entered: 07/17/2020)
APPROVAL by Clerks Office re: 14 APPLICATION for Admission of Stephen Pevar Pro Hac Vice (Application fee $ 150, receipt number AGANDC-9916491).. Attorney Stephen L. Pevar added appearing on behalf of Rhonda Jones (nmb) (Entered: 07/17/2020)
MINUTE ORDER (by docket entry only) GRANTING 14 Application for Admission Pro Hac Vice of Stephen Pevar. Approved by District Judge Eleanor L. Ross on 7/17/20. If the applicant does not have CM/ECF access in the Northern District of Georgia already, they must request access at http://pacer.gov. If they have electronically filed in this district in a previous case, please omit this step.(mlb) (Entered: 07/17/2020)
APPROVAL by Clerks Office re: 15 APPLICATION for Admission of Robert W. Hunter Pro Hac Vice (Application fee $ 150, receipt number AGANDC-9916569).. Attorney Robert W. Hunter added appearing on behalf of Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins (nmb) (Entered: 07/17/2020)
MINUTE ORDER (by docket entry only) GRANTING 15 Application for Admission Pro Hac Vice of Robert W. Hunter. Approved by District Judge Eleanor L. Ross on 7/17/20. If the applicant does not have CM/ECF access in the Northern District of Georgia already, they must request access at

07/17/2020 07/20/2020 07/21/2020 07/24/2020
07/24/2020
07/24/2020 07/27/2020

http://pacer.gov. If they have electronically filed in this district in a previous case, please omit this step.(mlb) (Entered: 07/17/2020)
Clerk's Certificate of Mailing (via email) to Attorneys Stephen Pevar and Robert Hunter as to Michael Singleton and Barry Watkins regarding Order(s) on Application for Admission PHVs. (mlb) (Entered: 07/17/2020)
Submission of 7 MOTION to Certify Class to Magistrate Judge Christopher C. Bly. (jpk) (Entered: 07/20/2020)
18 NOTICE of Leave of Absence for the following dates: July 27, 2020 - July 31, 2020 by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas (Hancock, Jack) Modified on 7/22/2020 to edit text and add dates (jpk). (Entered: 07/21/2020)
APPROVAL by Clerks Office re: 17 APPLICATION for Admission of Brandon Buskey Pro Hac Vice (Application fee $ 150, receipt number AGANDC-9924715).. Attorney Brandon Buskey added appearing on behalf of Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins (nmb) (Entered: 07/24/2020)
MINUTE ORDER (by docket entry only) GRANTING 17 Application for Admission Pro Hac Vice of Brandon Buskey. Approved by District Judge Eleanor L. Ross on 7/24/20. If the applicant does not have CM/ECF access in the Northern District of Georgia already, they must request access at http://pacer.gov. If they have electronically filed in this district in a previous case, please omit this step.(mlb) (Entered: 07/24/2020)
Clerk's Certificate of Mailing (via email) to Attorney Brandon Buskey as to Rhonda Jones, Randolph Mitchell, Michael Singleton and Barry Watkins regarding Order on Application for Admission PHV. (mlb) (Entered: 07/24/2020)
19 MOTION for Preliminary Injunction with Brief In Support by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Attachments: # 1 Brief in Support of Motion for Preliminary Injunction, # 2 Exhibit A: Declaration of Nina H. Fefferman, Ph.D, # 3 Exhibit B: Declaration of Fred Rottnek, M.D., # 4 Exhibit C: Declaration of Emmitt L. Sparkman, # 5 Exhibit D: Declarations of 12 Current or Recent Detainees, # 6 Exhibit E: Email from E. Cross to Defendants, Mar. 13, 2020, # 7 Exhibit F: Email from Sheriff Victor Hill, Mar. 17, 2020, # 8 Exhibit G: Records from Clayton County Health District,

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08/03/2020 08/03/2020 08/03/2020

# 9 Exhibit H: Records from CorrectHealth, LLC, # 10 Exhibit I: Detainee Grievances, # 11 Exhibit J: Assorted COVID-19 Records from Clayton Cty. Sheriffs Office, # 12 Exhibit K: Clayton Cty. Sheriffs Office Advisory, Jul. 2, 2020, # 13 Exhibit L: CDC Interim Guidance, # 14 Exhibit M: Ga. Dept of Public Health Interim Guidance, # 15 Text of Proposed Order Granting Motion for Preliminary Injunction)(Cutting, Jeremy) (Entered: 07/27/2020)
20 MOTION for Hearing re 19 MOTION for Preliminary Injunction , MOTION to Expedite Hearing on Motion for Preliminary Injunction with Brief In Support by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Cutting, Jeremy) (Entered: 07/27/2020)
21 MOTION for Discovery , MOTION to Expedite Discovery with Brief In Support by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Attachments: # 1 Brief in Support of Motion for Expedited Discovery, # 2 Exhibit A: Plaintiffs Proposed Written Discovery, # 3 Text of Proposed Order Granting Plaintiffs Request for Expedited Discovery)(Cutting, Jeremy) (Entered: 07/27/2020)
22 ORDER OF RECUSAL. Judge Eleanor L. Ross recused. Case reassigned to Judge J. P. Boulee for all further proceedings NOTICE TO ALL COUNSEL OF RECORD: The Judge designation in the civil action number assigned to this case has been changed to 1:20-CV-02791-JPB-CCB. Please make note of this change in order to facilitate the docketing of pleadings in this case. Signed by Judge Eleanor L. Ross on 7/28/2020. (jpk) (Entered: 07/28/2020)
23 First MOTION to Dismiss with Brief In Support by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin
Thomas. (Attachments: # 1 Brief Memorandum of Law, # 2 Exhibit)(Sabzevari, Arash) (Entered: 08/03/2020)
24 First Certificate of Interested Persons by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Sabzevari, Arash) (Entered: 08/03/2020)
25 First MOTION to Stay Discovery with Brief In Support by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Attachments: # 1 Text of Proposed Order)(Sabzevari, Arash) (Entered: 08/03/2020)

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08/04/2020 08/04/2020 08/06/2020

26 Consent MOTION for Leave to File Excess Pages in Brief in Opposition to Motion for Preliminary Injunction by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Attachments: # 1 Text of Proposed Order)(Sabzevari, Arash) (Entered: 08/03/2020)
27 SIXTH AMENDMENT TO GENERAL ORDER 20-01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID-19 AND RELATED CORONAVIRUS. Signed by Judge Thomas W. Thrash, Jr. on 08/03/2020. (dgs) (ADI) (Entered: 08/04/2020)
ORDER: For good cause shown, the 26 Consent Motion for Leave to File Excess Pages is GRANTED. IT IS HEREBY ORDERED that Defendants response in opposition to Plaintiffs Motion for Preliminary Injunction may exceed the page limit by ten additional pages for a total of thirty-five pages. Signed by Judge J. P. Boulee on 8/4/20. (bnw) (Entered: 08/04/2020)
28 MOTION to Stay or in the Alternative, MOTION for Extension of Time to File Response in Opposition to Plaintiffs' Motion for Preliminary Injunction re: 19 MOTION for Preliminary Injunction with Brief In Support by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Attachments: # 1 Text of Proposed Order Staying Motion for Preliminary Injunction, # 2 Text of Proposed Order Granting Extension of Time)(Sabzevari, Arash) (Entered: 08/04/2020)
29 RESPONSE in Opposition re 20 MOTION for Hearing re 19 MOTION for Preliminary Injunction MOTION to Expedite Hearing on Motion for Preliminary Injunction filed by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Attachments: # 1 Text of Proposed Order Denying Motion for Expedited Hearing)(Sabzevari, Arash) (Entered: 08/04/2020)
30 RESPONSE in Opposition re 21 MOTION for Discovery MOTION to Expedite Discovery filed by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Attachments: # 1 Text of Proposed Order Denying Motion for Expedited Discovery)(Sabzevari, Arash) (Entered: 08/04/2020)
ORDER: This Court HEREBY ORDERS expedited briefing on Defendants' 28 Motion to Stay Plaintiffs' Motion for Preliminary Injunction. Plaintiffs shall file their response to Defendants' Motion to Stay no later than noon on August 10, 2020.

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08/14/2020

Defendants' reply, if any, shall be filed no later than the close of business on August 11, 2020. Signed by Judge J. P. Boulee on 8/6/20. (bnw) (Entered: 08/06/2020)
31 RESPONSE in Opposition re 28 MOTION to Stay or in the Alternative MOTION for Extension of Time to File Response in Opposition to Plaintiffs' Motion for Preliminary Injunction re: 19 MOTION for Preliminary Injunction filed by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Attachments: # 1 Exhibit A: CorrectHealth June Statistical Report)(Primerano, Ryan) (Entered: 08/10/2020)
32 REPLY BRIEF re 28 MOTION to Stay or in the Alternative MOTION for Extension of Time to File Response in Opposition to Plaintiffs' Motion for Preliminary Injunction re: 19 MOTION for Preliminary Injunction filed by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Sabzevari, Arash) (Entered: 08/11/2020)
33 MOTION for Leave to File Excess Pages with Brief In Support by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Attachments: # 1 Text of Proposed Order Granting Motion for Leave to File Excess Pages)(Primerano, Ryan) (Entered: 08/13/2020)
34 STANDING ORDER REGARDING CIVIL LITIGATION. Signed by Judge J. P. Boulee on 8/14/20. (bnw) (Entered: 08/14/2020)
35 ORDER granting 21 Plaintiffs' Motion for Expedited Discovery. At this time, this Court will not determine the exact scope of the permissible discovery or the corresponding deadlines to complete discovery. Discovery, however, shall not be broader than that requested in the Motion for Expedited Discovery. No later than August 21, 2020, the parties are to meet and confer to determine the proper scope of the allowable discovery pursuant to this Court's Standing Order. Defendants; Motion to Stay Plaintiffs' Motion for Preliminary Injunction, or in the alternative, Motion for Extension of Time 28 is granted in part. Defendants shall file their response to Plaintiffs' Motion for Preliminary Injunction no later than August 31, 2020. Plaintiffs' reply, if any, shall be filed no later than September 14, 2020. Signed by Judge J. P. Boulee on 8/14/2020. (ddm) (Entered: 08/14/2020)
36 MINUTE ORDER: Plaintiffs' unopposed motion for a page-limit extension, (Doc. 33), is GRANTED. Plaintiffs may file a brief of up to 35 pages in length in response to Defendants' motion to

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dismiss, and Defendants may file a reply brief of up to 25 pages in length. Ordered by Magistrate Judge Christopher C. Bly on 8/14/20. (jtj) (Entered: 08/14/2020)

37 RESPONSE in Opposition re 23 First MOTION to Dismiss filed by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Attachments: # 1 Exhibit A: Clayton County Sheriff's Office Request for Proposal No. SO-02)(Cutting, Jeremy) (Entered: 08/17/2020)

38 RESPONSE in Opposition re 25 First MOTION to Stay Discovery filed by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Primerano, Ryan) (Entered: 08/17/2020)

Submission of 20 MOTION for Hearing re 19 MOTION for Preliminary Injunction, MOTION to Expedite Hearing on Motion for Preliminary Injunction, to Magistrate Judge Christopher C. Bly. (ddm) (Entered: 08/24/2020)

39 CERTIFICATE OF SERVICE by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas.(Sabzevari, Arash) (Entered: 08/28/2020)

REPLY BRIEF re 23 First MOTION to Dismiss filed by Roland

40

Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin

Thomas. (Sabzevari, Arash) (Entered: 08/31/2020)

41 RESPONSE in Opposition re 19 MOTION for Preliminary Injunction filed by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Attachments: # 1 Exhibit Declaration of Terrance Gibson, # 2 Exhibit Declaration of Demarco May, # 3 Exhibit Declaration of Doctor Charles Clopton, # 4 Exhibit Declaration of Edward Sweeney)(Sabzevari, Arash) (Entered: 08/31/2020)

42 SEVENTH AMENDMENT TO GENERAL ORDER 20-01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID-19 AND RELATED CORONAVIRUS. Signed by Judge Thomas W. Thrash, Jr. on 9/1/2020. (ddm) (ADI) (Entered: 09/02/2020)

Submission of 23 First MOTION to Dismiss , 25 First MOTION to Stay Discovery, to Magistrate Judge Christopher C. Bly. (ddm) (Entered: 09/04/2020)

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09/08/2020 09/10/2020 09/10/2020
09/11/2020 09/11/2020 09/11/2020

43 RESPONSE re 35 Order on Motion for Discovery,,,, Order on Motion to Expedite,,,, Order on Motion to Stay,,,, Order on Motion for Extension of Time,,, Consolidated/Joint Discovery Statement filed by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Attachments: # 1 Exhibit A: Description of Proposed Inspection, # 2 Exhibit B: Excerpt of Original Relevant Discovery Requests)(Cutting, Jeremy) (Entered: 09/04/2020)
44 Unopposed MOTION for Leave to File Excess Pages , First MOTION for Extension of Time to File Reply in Support of Plaintiffs' re: 19 MOTION for Preliminary Injunction with Brief In Support by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Attachments: # 1 Text of Proposed Order)(Cutting, Jeremy) (Entered: 09/08/2020)
45 RESPONSE re 44 Unopposed MOTION for Leave to File Excess Pages First MOTION for Extension of Time to File Reply in Support of Plaintiffs' re: 19 MOTION for Preliminary Injunction filed by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Sabzevari, Arash) (Entered: 09/10/2020)
ORDER: For good cause shown, Plaintiffs' 44 Motion for Extension of Time and Page Limit is GRANTED. IT IS HEREBY ORDERED that Plaintiffs' reply brief can exceed the allowable page limitation, but shall not exceed twenty-five pages. IT IS FURTHER ORDERED that Plaintiffs' deadline to file the reply brief is extended through and including September 24, 2020. Signed by Judge J. P. Boulee on 9/10/20. (bnw) (Entered: 09/10/2020)
NOTICE of TELECONFERENCE Hearing: Hearing set for 9/11/2020 at 2:00 PM EST before Judge J. P. Boulee. (bnw) (Entered: 09/11/2020)
46 CERTIFICATE OF SERVICE by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas.(Sabzevari, Arash) (Entered: 09/11/2020)
47 Minute Entry for proceedings held before Judge J. P. Boulee: The Court held a discovery hearing on 9/11/20. The Court granted Plaintiffs request for an inspection to be performed at a time agreeable to the parties. The limitations proposed by Defendants in footnote 8 of the discovery statement are approved with the following exceptions: (1) the court will not appoint a court appointed expert; and (2) the authorized individuals who can

09/14/2020
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attend the inspection are the four experts (two from each party), and two counsel for Plaintiffs and two counsel for Defendants. Plaintiffs request for production of documents is granted and Plaintiffs are entitled to documents from July 1, 2020, to the present assuming that a protective order is in place. No later than the close of business on Wednesday, September 16, 2020, Plaintiffs shall brief any issues associated with the protective order. Defendants shall respond regarding the protective order no later than close of business on Friday, September 18, 2020. (Court Reporter Penny Coudriet)(ddm) (Entered: 09/11/2020)
48 NOTICE Of Filing DEFENDANTS NOTICE OF FILING ADDITIONAL EVIDENCE IN OPPOSITION TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas re 41 Response in Opposition to Motion, Plaintiffs Motion for Preliminary Injunction (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11, # 12 Exhibit Exhibit 12, # 13 Exhibit Exhibit 13, # 14 Exhibit Exhibit 14, # 15 Exhibit Exhibit 15, # 16 Exhibit Exhibit 16, # 17 Exhibit Exhibit 17)(Sabzevari, Arash) (Entered: 09/14/2020)
49 CERTIFICATE OF SERVICE by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas.(Sabzevari, Arash) (Entered: 09/14/2020)
50 MOTION to Withdraw Robert W. Hunter as Attorneyby Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Attachments: # 1 Text of Proposed Order)(Hunter, Robert) (Entered: 09/15/2020)
ORDER granting 50 Motion to Withdraw as Attorney. Attorney Robert W. Hunter terminated. Signed by Judge J. P. Boulee on 9/16/20. (bnw) (Entered: 09/16/2020)
51 RESPONSE re 47 Discovery Hearing,,,, Plaintiffs' Supplemental Memorandum of Law in Support of the Production of Certain Grievances and "Sick Call" Requests Related to COVID-19 filed by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Attachments: # 1 Exhibit A: Proposed Protective Order, # 2 Exhibit B: Protective Order - Barnett v. Tony, # 3 Exhibit C: CorrectHealth Contract)(Cutting, Jeremy) (Entered: 09/16/2020)

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09/24/2020

NON-FINAL REPORT AND RECOMMENDATION

52

RECOMMENDING that Defendants' motion to dismiss (Doc. 23)

be GRANTED IN PART and DENIED IN PART, Plaintiff

Randolph Mitchel's individual claims be DISMISSED, the

remaining Plaintiffs' claims of deliberate indifference be

ALLOWED TO PROCEED, and the remaining Plaintiffs'

remaining claims be DISMISSED. Signed by Magistrate Judge

Christopher C. Bly on 9/16/20. (jtj) (Entered: 09/16/2020)

53 ORDER for Service of 52 Non-Final Report and Recommendation, by Magistrate Judge Christopher C. Bly. Each party may file written objections to the Report & Recommendation within 14 days of service. If no objections are filed, the Report & Recommendation may be adopted as the opinion and order of the District Court. Signed by Magistrate Judge Christopher C. Bly on 9/16/20. (jtj) (Entered: 09/16/2020)

54 ORDER advising the parties that, upon further consideration, the Court is satisfied that the filing fee has been paid in this case. Signed by Magistrate Judge Christopher C. Bly on 9/17/2020. (ddm) (Entered: 09/17/2020)

55 RESPONSE re 47 Discovery Hearing,,,, DEFENDANTS RESPONSE TO PLAINTIFFS MEMORANDUM OF LAW FOR THE PRODUCTION OF COVID-19 RELATED GRIEVANCES AND SICK CALL REQUESTS filed by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Sabzevari, Arash) (Entered: 09/18/2020)

56 ORDER re 43 Consolidated/Joint Discovery Statement. This Court is not persuaded that individual medical releases are required. This Court is satisfied that Plaintiffs are entitled to the discovery of the sick call requests, medical requests and grievances filed in relation to COVID-19 and that a protective order should allay any concerns about patient privacy where, as here, a non-covered entity under the Health Insurance Portability and Accountability Act (HIPAA) is the one producing medical information. The Proposed HIPAA-Qualified Protective Order [Doc. 51-1] is APPROVED as if fully incorporated herein. Signed by Judge J. P. Boulee on 9/24/20. (jpa) (Entered: 09/24/2020)

REPLY BRIEF re 19 MOTION for Preliminary Injunction filed by

57

Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry

Watkins. (Attachments: # 1 Exhibit A: Supplemental Declaration

of Nina H. Fefferman, Ph.D, # 2 Exhibit B: Declarations of

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Thirteen Current or Recent Detainees, # 3 Exhibit C: Email from E. Smith, CorrectHealth, # 4 Exhibit D: Screenshots from Court Appearances, # 5 Exhibit E: Email from O. Adewale, Clayton County Health District)(Cutting, Jeremy) (Entered: 09/24/2020)
Submission of 19 MOTION for Preliminary Injunction , to District Judge J. P. Boulee. (ddm) (Entered: 09/28/2020)
58 NOTICE of Appearance by Andres Martin Lopez-Delgado on behalf of Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins (Lopez-Delgado, Andres) (Entered: 09/29/2020)
59 EIGHTH AMENDMENT TO GENERAL ORDER 20-01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID19 AND RELATED CORONA VIRUS. Signed by Judge Thomas W. Thrash, Jr. on 09/28/2020. (adg) (ADI) (Entered: 09/29/2020)
60 OBJECTIONS to 52 Report and Recommendation filed by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Lopez-Delgado, Andres) (Entered: 09/30/2020)
61 CERTIFICATE OF SERVICE of Discovery Materials by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas.(Sabzevari, Arash) (Entered: 10/01/2020)
62 MOTION to Withdraw Kosha Shonyetta Tucker as Attorneyby Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Attachments: # 1 Text of Proposed Order)(Tucker, Kosha) (Entered: 10/02/2020)
ORDER granting 62 Motion to Withdraw as Attorney. Attorney Kosha Shonyetta Tucker terminated. Signed by Judge J. P. Boulee on 10/2/20. (bnw) (Entered: 10/02/2020)
Submission of the 52 REPORT AND RECOMMENDATION and 23 First MOTION to Dismiss to District Judge J. P. Boulee. (aaq) (Entered: 10/05/2020)
63 Joint MOTION for Protective Order Regarding Photographs Taken During Jail Inspection by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Attachments: # 1 Text of Proposed Order)(Primerano, Ryan) (Entered: 10/07/2020)

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64 Consent MOTION for Extension of Time Respond to Plaintiff's Objections to Report and Recommendation by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Attachments: # 1 Text of Proposed Order)(Sabzevari, Arash) (Entered: 10/08/2020)
ORDER: For good cause shown, the 64 Consent Motion for Extension of Time for Defendants to Respond to Plaintiffs' Objections is GRANTED. IT IS HEREBY ORDERED that Defendant shall respond to Plaintiffs' objections no later than October 21, 2020. Signed by Judge J. P. Boulee on 10/9/20. (bnw) (Entered: 10/09/2020)
65 CERTIFICATE OF SERVICE by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas.(Sabzevari, Arash) (Entered: 10/12/2020)
66 Petition for Leave of Absence for the following date(s): November 13 and 16 2020; November 20, 2020 through November 24, 2020; December 28, 2020 through January 4, 2021; January 15, 2021 through January 19, 2021; February 12, 2021 through February 22, 2021; April 2, 2021 through April 12, 2021; May 28, 2021 through June 1, 2021; July 2, 2021 through including July 5, 2021., by Arash A. Sabzevari. (Sabzevari, Arash) (Entered: 10/14/2020)
67 CERTIFICATE OF SERVICE of Discovery Materials by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas.(Sabzevari, Arash) (Entered: 10/19/2020)
68 Petition for Leave of Absence for the following date(s): October 23 and 24, 2020; November 2, 2020 through and including November 6, 2020, by Jack Reynolds Hancock. (Hancock, Jack) (Entered: 10/19/2020)
69 RESPONSE re 60 Objections to Report and Recommendation filed by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Sabzevari, Arash) (Entered: 10/21/2020)
Submission of 63 Joint MOTION for Protective Order Regarding Photographs Taken During Jail Inspection, to Magistrate Judge Christopher C. Bly. (ddm) (Entered: 10/26/2020)
70 ORDER granting 63 the parties' Joint Motion for Protective Order Regarding Photographs Taken During Jail Inspection. Signed by Judge J. P. Boulee on 10/27/2020. (ddm) (Entered: 10/27/2020)

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71 First Initial Disclosures by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins.(Cutting, Jeremy) (Entered: 11/05/2020)
72 CERTIFICATE OF SERVICE of Discovery Materials by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas.(Sabzevari, Arash) (Entered: 11/18/2020)
73 ORDER - The Non-Final Report and Recommendation [Doc. 52
] is ADOPTED as the order of this Court. For the reasons stated by the Magistrate Judge, Defendants' Motion to Dismiss [Doc. 23 ] is GRANTED IN PART AND DENIED IN PART. Plaintiff Randolph Mitchell's individual claims are DISMISSED, the remaining Plaintiffs' claims of deliberate indifference are ALLOWED TO PROCEED, and the remaining Plaintiffs' remaining claims are DISMISSED. Signed by Judge J. P. Boulee on 11/19/2020. (tcc) (Entered: 11/19/2020)
ORDER: In light of this Court's 73 Order, the First 25 Motion to Stay Discovery is DENIED AS MOOT. Signed by Judge J. P. Boulee on 11/19/20. (bnw) (Entered: 11/19/2020)
NOTICE OF VIDEO PROCEEDING : Preliminary Injunction Hearing set for 12/8/2020 at 9:00 AM before Judge J. P. Boulee. Connection Instructions: Join ZoomGov Meeting https://ganduscourts.zoomgov.com/j/1605978758 Meeting ID: 160 597 8758 Passcode: 934852 One tap mobile +16692545252 You must follow the instructions of the Court for remote proceedings available here. The procedure for filing documentary exhibits admitted during the proceeding is available here. Photographing, recording, or broadcasting of any judicial proceedings, including proceedings held by video teleconferencing or telephone conferencing, is strictly and absolutely prohibited. (bnw) Modified on 11/23/2020 to edit time (bnw). (Entered: 11/19/2020)
74 CERTIFICATE OF SERVICE of Discovery Materials by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas.(Sabzevari, Arash) (Entered: 11/25/2020)
75 SEALED NOTICE Of Filing by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas Additional Evidence in Opposition to Plaintiffs' Motion for Preliminary Injunction (Attachments: # 1 Exhibit No. 18 CorrectHealth Statistical Report through October 2020, # 2 Exhibit No. 19 Photographs from Jail Inspection, # 3 Exhibit No. 20 CDC Updated Guidelines for Correction Facilities, # 4 Exhibit No. 21

12/01/2020 12/01/2020 12/01/2020
12/01/2020

CorrectHealth COVID-19 Tracking Logs, # 5 Exhibit No. 22 COVID-19 Test Request/Response Sample Set, # 6 Exhibit No. 23 COVID-19 Protocol Enforcement Sample Set, # 7 Exhibit No. 24 COVID-19 Senior Citizen Remarks, # 8 Exhibit No. 25 Kiosk Acknowledgement of COVID-19 Guidelines)(Sabzevari, Arash) Modified on 12/2/2020 to remove the word Provisionally from the entry (ddm). (Entered: 12/01/2020)
76 MOTION for Leave to File Matters Under Seal re: 75 Notice of Filing,,, with Brief In Support by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Attachments: # 1 Text of Proposed Order)(Sabzevari, Arash) (Entered: 12/01/2020)
77 SEALED NOTICE Of Filing by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins (Attachments: # 1 Exhibit 12: Photographs from Jail Inspection, # 2 Exhibit 13: Detainee Grievances, # 3 Exhibit 14: Detainee Request Forms, # 4 Exhibit 15: CorrectHealth Lab Tracking Log, # 5 Exhibit 16: Unredacted Declarations of Detainees, # 6 Exhibit 17: Unredacted Declaration of Emmitt Sparkman, # 7 Exhibit 18: Unredacted Declaration of Fred Rottnek, M.D., M.A.H.C.M.)(Primerano, Ryan) Modified on 12/2/2020 to remove the word Provisionally from the entry (ddm). (Entered: 12/01/2020)
78 NOTICE Of Filing by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins Additional Evidence in Support of Plaintiffs' Motion for Preliminary Injunction (Attachments: # 1 Exhibit 1: Resp. re RFP 1, # 2 Exhibit 2: Email from Smith to Peterkin, # 3 Exhibit 3: Redacted Detainee Declarations, # 4 Exhibit 4: CorrectHealth Monthly Statistical Reports, # 5 Exhibit 5: Contract for Health Services, # 6 Exhibit 6: Resp. re RFP 8, # 7 Exhibit 7: Redacted Declaration and Report of Emmitt L. Sparkman, # 8 Exhibit 8: Redacted Declaration of Fred Rottnek, M.D., M.A.H.C.M., # 9 Exhibit 9: Email from Cameron to Adewale, # 10 Exhibit 10: Baker-Leake Declaration, # 11 Exhibit 11: Clayton Cty. Health District's Monthly Testing Totals)(Cutting, Jeremy) (Entered: 12/01/2020)
79 MOTION for Leave to File Matters Under Seal re: 77 Notice of Filing,, with Brief In Support by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Primerano, Ryan) (Entered: 12/01/2020)

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12/03/2020 12/04/2020

80 NOTICE of Appearance by Jeremy Dakota Cutting on behalf of Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins (Cutting, Jeremy) (Entered: 12/02/2020)
81 ORDER granting Defendants' Motion for Leave to File Matters Under Seal 76 and Plaintiffs' Motion for Leave to File Under Seal 79 . THE Clerk is to seal the following documents: 77, 75-1, 75-2, 75-4, 75-6, 75-7 and 75-8 until further order of this Court. Signed by Judge J. P. Boulee on 12/2/2020. (ddm) (Entered: 12/02/2020)
82 CERTIFICATE OF SERVICE of Discovery Materials by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas.(Sabzevari, Arash) (Entered: 12/02/2020)
83 DEFENDANTS ANSWER to 1 COMPLAINT with Jury Demand by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas.(Sabzevari, Arash) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 12/03/2020)
84 NOTICE Of Filing Supplemental Authority in Opposition to Plaintiffs Motion for Preliminary Injunction by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas re 41 Response in Opposition to Motion, (Attachments: # 1 Exhibit)(Sabzevari, Arash) (Entered: 12/03/2020)
85 SEALED NOTICE Of Filing Additional Evidence in Support of Plaintiffs' Motion for Preliminary Injunction by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins (Attachments: # 1 Exhibit 19: Supplemental Detainee Grievances, # 2 Exhibit 20: Supplemental Detainee Request Forms, # 3 Exhibit 21: Supplemental CorrectHealth Lab Tracking Log)(Lopez-Delgado, Andres) Modified on 12/9/2020 to remove the word Provisionally from the entry (ddm). (Entered: 12/03/2020)
86 MOTION for Leave to File Matters Under Seal re: 85 Notice of Filing, with Brief In Support by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Lopez-Delgado, Andres) (Entered: 12/03/2020)
87 NOTICE Of Filing by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas Supplemental Evidence in Opposition to Plaintiffs' Motion for Preliminary Injunction (Attachments: # 1 Exhibit No. 26 November 2020 Photos of CCJ, # 2 Exhibit No. 27 Redacted CorrectHealth Logs

12/06/2020 12/07/2020 12/07/2020 12/07/2020 12/07/2020 12/07/2020
12/07/2020

Sept-Nov 2020, # 3 Exhibit No. 28 Terrance Gibson Supplement Decl.)(Sabzevari, Arash) (Entered: 12/04/2020)
88 First MOTION for Writ of Habeas Corpus ad testificandum with Brief In Support by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Cutting, Jeremy) (Entered: 12/06/2020)
89 RESPONSE in Opposition re 88 First MOTION for Writ of Habeas Corpus ad testificandum filed by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Sabzevari, Arash) (Entered: 12/07/2020)
90 MOTION to Strike 78 Notice of Filing,,, Declaration of Katie Baker-Leake with Brief In Support by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Sabzevari, Arash) (Entered: 12/07/2020)
91 Motion to Bring Audio/Visual/Electronic Equipment in the Courtroom by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Primerano, Ryan) (Entered: 12/07/2020)
92 REPLY to Response to Motion re 88 First MOTION for Writ of Habeas Corpus ad testificandum filed by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Primerano, Ryan) (Entered: 12/07/2020)
ORDER: Given the availability of testimony by video-conference of Jaquan Williams and Trey Absher from the Clayton County Jail and what the court understands to be the difficulty of transporting the witnesses to court with less than a day's notice to the relevant agencies, the 88 Motion for Order to Produce Witnesses is DENIED. See United States v. Rinchack, 820 F.2d 1557, 1568 (11th Cir. 1987) (requiring the court to consider "whether the prisoner's presence will substantially further the resolution of the case, what security risks are presented by permitting the prisoner to come to court to testify, what the expense of the prisoner's transportation and upkeep will be, and other factors bearing on the need for the prisoner's testimony vis-a-vis the difficulties attendant to securing it"). Signed by Judge J. P. Boulee on 12/7/20. (bnw) (Entered: 12/07/2020)
93 MOTION to Strike 78 Notice of Filing,,, Declarations of Fred Rottnek with Brief In Support by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Sabzevari, Arash) (Entered: 12/07/2020)

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94 NOTICE Of Filing by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas re 93 MOTION to Strike 78 Notice of Filing,,, Declarations of Fred Rottnek Exhibit A in Support of Motion to Strike Declarations of Fred Rottnek (Sabzevari, Arash) (Entered: 12/07/2020)
ORDER granting 91 Motion to Bring Audio/Visual/Electronic Equipment in the Courtroom on 12/8/20 at 9:00 AM EST for the following attorneys and paralegals: to bring personal computers and cellular telephones into the courthouse for the December 8 hearing: (1) Sarah Geraghty (attorney); (2) L. Joseph Loveland (attorney); (3) Jeremy Cutting (attorney); (4) Andres LopezDelgado (attorney); (5) Nicholas Barber (paralegal); and (6) Ryan Primerano (attorney). Signed by Judge J. P. Boulee on 12/7/20. (bnw) Modified on 12/7/2020 to edit text (bnw). (Entered: 12/07/2020)
NOTICE OF VIDEO PROCEEDING re: 19 MOTION for Preliminary Injunction . Motion Hearing set for 12/9/2020 at 10:30 AM before Judge J. P. Boulee. Connection Instructions: Please click the link below to join the webinar: https://ganduscourts.zoomgov.com/j/1600475417 Passcode: 208827 Or iPhone one-tap : US: +16692545252 You must follow the instructions of the Court for remote proceedings available here. The procedure for filing documentary exhibits admitted during the proceeding is available here. Photographing, recording, or broadcasting of any judicial proceedings, including proceedings held by video teleconferencing or telephone conferencing, is strictly and absolutely prohibited. (bnw) Modified on 12/9/2020 to edit text (bnw). (Entered: 12/08/2020)
114 Minute Entry for proceedings held before Judge J. P. Boulee: The Court held a Preliminary Injunction Hearing on 12/8/20. The following witnesses were sworn in and testified for Plaintiffs: Emmit Sparkman, Jamie Mills, Jaquan Williams, Trey Absher, and Dr. Nina Fefferman. The following witnesses were sworn in and testified for Defendants: Terrance Gibson, Alan Parker, Roland Boehrer, and Dr. Charles Clopton. See transcript for more details. Hearing not concluded. Court adjourned until tomorrow. (Court Reporter Penny Coudriet)(ddm) (Entered: 12/14/2020)
95 NINTH AMENDMENT TO GENERAL ORDER 20-01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID-19 AND RELATED CORONAVIRUS. Signed by Judge Thomas W. Thrash, Jr. on 12/08/2020. (aaq) (ADI) (Entered: 12/09/2020)

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12/09/2020 12/10/2020

96 NOTICE Of Filing by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas Additional Evidence in Opposition to Plaintiffs' Motion for Preliminary Injunction (Attachments: # 1 Exhibit 37_COVID-19 Protocols and Measures at the CCJ Demonstrative, # 2 Exhibit 38_Photohraphs of J.M. at the CCJ)(Sabzevari, Arash) (Entered: 12/09/2020)
97 ORDER granting 86 Plaintiffs' Motion for Leave to File Matters Under Seal. Signed by Judge J. P. Boulee on 12/9/20. (ddm) (Entered: 12/09/2020)
98 NOTICE Of Filing by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas Additional Evidence in Opposition to Plaintiffs' Motion for Preliminary Injunction (Attachments: # 1 Exhibit No. 36_Grievances and Requests from J.M, J.W., T.A., and E.F., # 2 Exhibit No. 39_Use of Force Report for J.M.)(Sabzevari, Arash) (Entered: 12/09/2020)
99 NOTICE of Appearance by L. Joseph Loveland, Jr on behalf of Rhonda Jones, Randolph Mitchell, Michael Singleton (Loveland, L.) (Entered: 12/09/2020)
100 NOTICE Of Filing Additional Evidence in Support of Plaintiffs' Motion for Preliminary Injunction by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins (Attachments: # 1 Chart Summarizing Jail's Alleged Policies and Evidence Showing Lack of Implementation, # 2 Chart Summarizing Detainee Reports of Symptoms and Requests for Testing, # 3 Post and Video Published to the Public Facebook Page of Sheriff Victor Hill on December 8, 2020)(Cutting, Jeremy) Modified on 12/10/2020 (Attachment #2 is sealed) (adg). Modified on 12/11/2020 (ddm). (Entered: 12/09/2020)
115 Minute Entry for proceedings held before Judge J. P. Boulee: The Court continued the Preliminary Injunction hearing on 12/9/20. The parties had closing arguments. See transcript for more details. (Court Reporter Penny Coudriet)(ddm) Modified on 12/14/2020 to edit text (ddm). (Entered: 12/14/2020)
101 SEALED NOTICE Of Filing by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas Additional Evidence in Opposition to Plaintiffs' Motion for Preliminary Injunction (Attachments: # 1 Exhibit No. 40 CorrectHealth Medical Records of S.S., # 2 Exhibit No. 41 Arrowhead Nursing Home Records of S.S., # 3 Exhibit No. 42 Second Declaration of Dr. Charles Clopton, # 4 Exhibit No. 43 COVID-19 Questionnaire Signed by J.M., # 5 Exhibit No. 44 Medical Services

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Acknowledgement Form Signed by J.M., # 6 Exhibit No. 45 CorrectHealth Medical Records of J.M.)(Sabzevari, Arash) Modified on 12/11/2020 (ddm). (Entered: 12/10/2020)
102 MOTION for Leave to File Matters Under Seal re: 101 Notice of Filing,, with Brief In Support by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Attachments: # 1 Text of Proposed Order)(Sabzevari, Arash) (Entered: 12/10/2020)
103 NOTICE Of Filing by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins re 101 Notice of Filing,, (Attachments: # 1 Exhibit : Declaration of N. Barber with Attachments)(Primerano, Ryan) (Entered: 12/10/2020)
104 MOTION for Leave to File Matters Under Seal re: 100 Notice of Filing,, with Brief In Support by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Cutting, Jeremy) (Entered: 12/10/2020)
105 NOTICE Of Filing Additional Evidence in Support of Plaintiffs' Motion for Preliminary Injunction by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins (Attachments: # 1 Redacted Chart Summarizing Detainee Reports of Symptoms and Requests for Testing)(Cutting, Jeremy) (Entered: 12/10/2020)
106 NOTICE of Appearance by Janeen Elizabeth Smith on behalf of Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas (Smith, Janeen) (Entered: 12/10/2020)
107 NOTICE Of Filing by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas Additional Evidence in Opposition to Plaintiffs' Motion for Preliminary Injunction (Attachments: # 1 Exhibit No. 46 Supplemental Declaration of Edward Sweeney)(Sabzevari, Arash) (Entered: 12/10/2020)
108 (SEALED PER 129 ORDER) RESPONSE re 101 Notice of Filing,, filed by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Cutting, Jeremy) Modified on 12/28/2020 (tcc). (Entered: 12/11/2020)
109 MOTION for Leave to File Matters Under Seal re: 108 Response (Non-Motion) with Brief In Support by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Cutting, Jeremy) (Entered: 12/11/2020)

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110 RESPONSE re 90 MOTION to Strike 78 Notice of Filing,,, Declaration of Katie Baker-Leake filed by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (LopezDelgado, Andres) (Entered: 12/11/2020)
111 ORDER granting Defendants' Motion for Leave to File Matters Under Seal 102 and Plaintiffs' Motion to File Under Seal 104 . Signed by Judge J. P. Boulee on 12/11/20. (ddm) (Entered: 12/11/2020)
112 RESPONSE re 93 MOTION to Strike 78 Notice of Filing,,, Declarations of Fred Rottnek filed by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (LopezDelgado, Andres) (Entered: 12/11/2020)
113 RESPONSE re 107 Notice of Filing, Notice of Objection to Supplemental Declaration of Edward Sweeney filed by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Lopez-Delgado, Andres) (Entered: 12/11/2020)
ORDER: If Defendants intend to file a response to Plaintiffs' 113 Notice of Objection to Supplemental Declaration of Edward Sweeney, the response shall be filed no later than 10:00 a.m. on Tuesday, December 15, 2020. Defendants' response shall be limited to 3 pages. If Plaintiffs intend to file a reply, the reply should be filed no later than 3:00 p.m. on Tuesday, December 15, 2020. The reply shall be limited to 2 pages. Signed by Judge J. P. Boulee on 12/14/20. (bnw) (Entered: 12/14/2020)
120 NOTICE Of MANUAL Filing Electronic media by Plaintiffs re 19 MOTION for Preliminary Injunction. (kt) (Entered: 12/15/2020)
116 RESPONSE re 113 Response (Non-Motion) in Opposition to Plaintiffs' Notice of Objection to the Supplemental Declaration of Edward Sweeney filed by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Sabzevari, Arash) (Entered: 12/15/2020)
117 REPLY BRIEF re 90 MOTION to Strike 78 Notice of Filing,,, Declaration of Katie Baker-Leake filed by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Sabzevari, Arash) (Entered: 12/15/2020)
118 REPLY BRIEF re 93 MOTION to Strike 78 Notice of Filing,,, Declarations of Fred Rottnek filed by Roland Boehrer,

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Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas. (Sabzevari, Arash) (Entered: 12/15/2020)
119 RESPONSE re 113 Response (Non-Motion) Plaintiffs' Reply in Support of Notice of Objection to Supplemental Declaration of Edward Sweeney filed by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. (Lopez-Delgado, Andres) (Entered: 12/15/2020)
ORDER: After considering the arguments of the parties, Plaintiffs' 113 Notice of Objection to the Supplemental Declaration of Edward Sweeney is OVERRULED. To cure any perceived prejudice in allowing this evidence, this Court will reconvene the hearing for the limited purpose of allowing Plaintiffs to cross-examine Mr. Sweeney regarding his supplemental declaration. Rebuttal questions will be permitted but similarly limited in scope. The date and time of the hearing will be supplied via a separate docket entry. Signed by Judge J. P. Boulee on 12/15/20. (bnw) (Entered: 12/15/2020)
NOTICE OF VIDEO PROCEEDING : Hearing set for 12/17/2020 at 09:30 AM before Judge J. P. Boulee. Connection Instructions: https://ganduscourts.zoomgov.com/j/1600032440 Passcode: 932991 Or iPhone one-tap : US: +16692545252 You must follow the instructions of the Court for remote proceedings available here. The procedure for filing documentary exhibits admitted during the proceeding is available here. Photographing, recording, or broadcasting of any judicial proceedings, including proceedings held by video teleconferencing or telephone conferencing, is strictly and absolutely prohibited. (bnw) (Entered: 12/15/2020)
121 NOTICE of Appearance by Sean Young on behalf of Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins (Young, Sean) (Entered: 12/16/2020)
122 Minute Entry for proceedings held before Judge J. P. Boulee: The Court held an evidentiary hearing on 12/17/20. Defense witness, Edward Sweeney, was sworn-in and testified. See transcript for more details. (Court Reporter Andy Ashley)(ddm) (Entered: 12/17/2020)
123 NOTICE Of Filing of Proposed Order by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins re 7 MOTION to Certify Class (Attachments: # 1 Text of Proposed Order)(Cutting, Jeremy) (Entered: 12/17/2020)

12/18/2020 12/21/2020 12/21/2020 12/22/2020

124 EXHIBITS admitted during the Video Preliminary Injunction Hearing held on 12/8/2020 before the Honorable Judge J. P. Boulee. Filed by Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins. Any objection to the validity of these exhibits must be filed by the next business day following the upload of exhibits. (Cutting, Jeremy) (Entered: 12/18/2020)
125 TRANSCRIPT of Proceedings held on 12/08/2020, before Judge JP Boulee. Court Reporter/Transcriber PENNY COUDRIET. A full directory of court reporters and their contact information can be found at www.gand.uscourts.gov/directory-court-reporters. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/11/2021. Redacted Transcript Deadline set for 1/21/2021. Release of Transcript Restriction set for 3/22/2021. (Attachments: # 1 Notice of Filing) (ppc) (Entered: 12/21/2020)
126 TRANSCRIPT of Proceedings held on 12/09/2020, before Judge JP Boulee. Court Reporter/Transcriber PENNY COUDRIET. A full directory of court reporters and their contact information can be found at www.gand.uscourts.gov/directory-court-reporters. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/11/2021. Redacted Transcript Deadline set for 1/21/2021. Release of Transcript Restriction set for 3/22/2021. (Attachments: # 1 Notice of filing) (ppc) (Entered: 12/21/2020)
ORDER: This Court has fully considered the arguments made in both Defendants' Notice of Objection and 93 Motion to Strike Declarations of Fred Rottnek, M.D. and Defendants' Notice of Objection and 90 Motion to Strike Portions of Declaration of Katie Baker-Leake. Because this Court finds Dr. Rottnek qualified to give expert testimony, Defendants Motion to Strike Declarations of Fred Rottnek, M.D. is DENIED. Defendants' 90 Motion to Strike Portions of Declaration of Katie Baker-Leake is also DENIED because the evidence is relevant and Plaintiffs are permitted to rely on evidence at the preliminary injunction stage which would not be admissible evidence for a permanent injunction if it has some indicia of reliability. Levi Strauss & Co. v. Sunrise Intl Trading, Inc., 51 F.3d 982, 985 (11th Cir. 1995). Signed by Judge J. P. Boulee on 12/22/2020. (bnw) (Entered: 12/22/2020)

12/23/2020

127 Objection re 123 Proposed Order by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas re 123 Notice of Filing Notice of Objections (Attachments: # 1 Text of Proposed Order Proposed Class Certification Order)(Sabzevari, Arash) (Entered: 12/23/2020)

12/24/2020 128

ORDER: Ultimately, after thoroughly reviewing the record and the evidence, Plaintiffs' 19 Motion for Preliminary Injunction is DENIED. See order for more details. Signed by Judge J. P. Boulee on 12/24/20. (bnw) (Entered: 12/24/2020)

12/28/2020

129 ORDER GRANTING 109 Motion for Leave to File Matters Under Seal. THE CLERK IS DIRECTED to seal Document 108 until further order of this Court. Signed by Judge J. P. Boulee on 12/28/2020. (tcc) (Entered: 12/28/2020)

12/29/2020

130 ORDER GRANTING Plaintiffs' Motion for Class Certification [Doc. 7 ]. The Principal Class is defined as follows: SEE ORDER FOR SPECIFICS. This Court will also certify a Medical Vulnerable Subclass, which is defined as follows: SEE ORDER FOR SPECIFICS. IT IS FURTHER ORDERED that Plaintiffs' counsel are appointed as counsel for each class. Plaintiffs Barry Watkins and Michael Singleton shall serve as class representatives for each class. Signed by Judge J. P. Boulee on 12/29/2020. (tcc) (Entered: 12/29/2020)

01/22/2021

131 JOINT PRELIMINARY REPORT AND DISCOVERY PLAN filed by Rhonda Jones, Michael Singleton, Barry Watkins. (Cutting, Jeremy) (Entered: 01/22/2021)

01/26/2021

NOTICE of TELECONFERENCE Hearing: Hearing set for 1/29/2021 at 3:00 PM before Judge J. P. Boulee. (bnw) (Entered: 01/26/2021)

01/27/2021

132 Initial Disclosures by Roland Boehrer, Terrance Gibson, Victor Hill, Maurice Johnson, Kevin Thomas.(Sabzevari, Arash) (Entered: 01/27/2021)

01/28/2021

133 TENTH AMENDMENT TO GENERAL ORDER 20-01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID-19 AND RELATED CORONAVIRUS. Signed by Judge Thomas W. Thrash, Jr. on 01/27/2021. (ddm) (ADI) (Entered: 01/28/2021)

01/29/2021

134 Minute Entry for proceedings held before Judge J. P. Boulee: Status Conference held on 1/29/2021. The parties are expected to abide by the following deadlines. Plaintiffs shall convey their

01/29/2021 02/08/2021 02/08/2021
02/17/2021

settlement demand to Defendants no later than February 2, 2021. Defendants shall respond no later than February 9, 2021. The parties shall participate in mediation no later than February 24, 2021. If the parties would like to mediate with a Magistrate Judge, they should notify the Courtroom Deputy no later than February 3, 2021. A subsequent discovery conference will be held on March 1, 2021. (Court Reporter Penny Coudriet)(ddm) (Entered: 01/29/2021)
NOTICE of TELECONFERENCE Hearing: Status Conference set for 3/1/2021 at 08:30 AM before Judge J. P. Boulee. (bnw) (Entered: 01/29/2021)
135 ORDER REFERRING CASE to Settlement Judge Magistrate Judge J. Clay Fuller. Signed by Judge J. P. Boulee on 2/8/2021. (tcc) (Entered: 02/08/2021)
136 ORDER - This case has been referred to the undersigned for mediation. Accordingly, all parties and their lead counsel are ORDERED TO APPEAR TELEPHONICALLY before the undersigned on Tuesday, February 23, 2021, at 10:00 a.m. Counsel will be provided call-in information for the joint session approximately 14 days prior to the mediation. Signed by Magistrate Judge J. Clay Fuller on 2/8/2021. (tcc) (Entered: 02/08/2021)
137 CERTIFICATE OF SERVICE by Rhonda Jones, Michael Singleton, Barry Watkins.(Primerano, Ryan) (Entered: 02/17/2021)

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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RHONDA JONES;

RANDOLPH MITCHELL;

MICHAEL SINGLETON; and

BARRY WATKINS, on behalf of themselves and others similarly situated,
Plaintiffs,
v.
VICTOR HILL, in his official capacity as Sheriff of Clayton County, Georgia;

CIVIL ACTION NO. 1:20-CV-____________ CLASS ACTION

ROLAND BOEHRER, in his official capacity as Chief Deputy;

TERRANCE GIBSON, in his official capacity as Jail Administrator;

KEVIN THOMAS, in his official capacity as Jail Security Operations Section Commander;

MAURICE JOHNSON, in his official capacity as Jail Administrative Operations Section Commander,

Defendants.

CLASS ACTION COMPLAINT AND PETITION FOR WRIT OF HABEAS CORPUS

TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1
JURISDICTION AND VENUE ................................................................................8
PARTIES.................................................................................................................... 9
A. Plaintiffs......................................................................................................9
B. Defendants ................................................................................................11
ALLEGATIONS OF FACT ....................................................................................14
A. The Clayton County Jail Is Unsanitary, Is Understaffed, and Holds Three People in Cells Built for Two..............................................14
B. The Coronavirus Pandemic Presents a Substantial Risk of Serious Harm to People in the Clayton County Jail.................................27
C. Defendants Have Failed to Respond Reasonably to the Known Risk of a COVID-19 Outbreak in the Clayton County Jail .....................44
1. Defendants continue to house three or four detainees in two-person cells and have made no effective effort at social distancing .............................................................................50
2. Defendants have failed to provide basic sanitation and personal hygiene.............................................................................56
3. Defendants have failed to issue reasonably adequate protective equipment......................................................................59
4. Defendants have failed to implement a process for identifying medically vulnerable and disabled people and taking affirmative steps for their protection...................................62
ii

5. Defendants have failed to implement a reasonable process for identifying, testing, and isolating COVID-19 infections ........................................................................................65
6. Defendants have failed to educate detainees about COVID-19 ......................................................................................70
D. Defendants Are Discriminating Against Detainees with Disabilities by Failing to Provide Reasonable Accommodations to Reduce Their Risk of Serious Illness or Death ....................................70
CLASS ACTION ALLEGATIONS ........................................................................72 A. Principal Pretrial Class .............................................................................72 B. Principal Post-Adjudication Class............................................................76 C. Medically Vulnerable Pretrial Subclass ...................................................80 D. Medically Vulnerable Post-Adjudication Subclass..................................84 E. Disability Pretrial Subclass.......................................................................89 F. Disability Post-Adjudication Subclass .....................................................93
CLAIMS FOR RELIEF ...........................................................................................97 REQUEST FOR RELIEF ......................................................................................106 VERIFICATION CERTIFICATE OF COMPLIANCE
iii

INTRODUCTION Plaintiffs respectfully file this complaint for declaratory and injunctive relief, and petition for a writ of habeas corpus, on behalf of themselves and similarly situated detainees in the Clayton County Jail. In support thereof, Plaintiffs allege the following: 1. This is an action to enforce disease prevention measures and to protect people who are uniquely susceptible to the effects of COVID-19 at Georgia’s second most populous jail. Three months into a global coronavirus pandemic that has killed over 125,000 Americans, Defendant Victor Hill, the sheriff of Clayton County, and his subordinates have done little to protect the Clayton County Jail’s approximately 2,000 detainees from serious illness or death. As a result, there is a significant outbreak of COVID-19 at the jail. The outbreak poses a substantial risk of serious harm to detainees, staff, and the community at large. It threatens the lives of medically vulnerable people and people with disabilities. 2. The Sheriff of Clayton County has not made any public statement regarding the outbreak at his facility, and he has declined to produce to undersigned counsel any document showing its scope or duration. According to the Georgia Department of Public Health, however, as of June 11, 2020, 45 people at the Clayton County Jail tested positive for COVID-19 (32 detainees and 13 staff
1

members). The outbreak is escalating, with 16 positive tests (13 detainees and 3 staff members) occurring in the first eight days of June alone.
3. Many of the people in the Clayton County Jail are serving brief sentences for minor offenses, such as misdemeanors or technical probation violations. Many are in jail awaiting trial because they are indigent and cannot afford to purchase their release on bail. A significant number are aged or have preexisting health conditions.
4. Plaintiff Rhonda Jones is 58 years old and has chronic obstructive pulmonary disease. She has been hospitalized twice for pneumonia in the past year. She has been charged with a felony offense and is awaiting trial. She is indigent and unable to pay her bail amount.
5. Plaintiff Randolph Mitchell is 72 years old and has high blood pressure and a heart condition that may soon require a pacemaker. He has served over 10 months of a 12-month sentence for a misdemeanor offense.
6. Plaintiff Michael Singleton is 59 years old and has high blood pressure. He is serving a one-year sentence for violation of probation.
7. Plaintiff Barry Watkins is 60 years old and has diabetes requiring a controlled diet and insulin injections. He has been charged with a property crime and is awaiting trial. He is indigent and unable to purchase his release on bail.
2

8. Ms. Jones, Mr. Mitchell, Mr. Singleton, Mr. Watkins and other detainees face a substantial risk of serious harm and or death absent intervention by this Court.
9. The magnitude of the COVID-19 pandemic is by now well understood. The disease causes serious illness in a significant number of those exposed to it and has a high mortality rate among people with certain health problems. The virus that causes COVID-19 is highly contagious and spreads primarily through respiratory droplets produced by an infected person and also by exposure to contaminated surfaces. Because there is no vaccine or cure for the disease, the only way to prevent an infection is to avoid exposure, and this is accomplished through social distancing, protective equipment, and adequate personal hygiene.
10. The risk of COVID-19 outbreaks in institutional settings likewise is well known by now. Many outbreaks have occurred in congregate environments such as nursing homes, cruise ships, funerals, worship services, and correctional facilities—places where many people interact in a confined area.
11. Due to their design, jails pose unique risks for the spread of disease. People in jails are confined in close proximity to many others, sharing common toilets, showers, equipment, and living areas. Constant turnover of the detainee
3

population and rotation of officers in and out of the jail’s housing areas create vectors for disease to enter a facility and infect large numbers of people, many of them vulnerable due to age, health conditions, or disabilities. Not surprisingly, many of the worst COVID-19 outbreaks in the United States have occurred at jails and prisons. Jails have become a significant source of the virus’s spread to the wider community.
12. Recognizing the obvious risk of serious harm to detainees, staff and communities, many officials responsible for Georgia’s jails have acted to prevent and mitigate outbreaks inside their facilities by reducing jail populations, screening detainees, swiftly responding to suspected infections, and promoting reasonable cleanliness and hygiene in the areas where detainees live and congregate. To take just one measure of these efforts in Georgia, the statewide jail population fell by 9,962 people between March 5 and May 7, 2020, ending with an average statewide jail population at 57 percent of overall jail capacity—down from 77 percent two months earlier.
13. The obvious need for prevention and mitigation efforts has not spurred meaningful action by those responsible for the Clayton County Jail. Eponymously dubbed “the Hill-ton” by Defendant Hill, whose administration states that he runs Georgia’s “toughest para-military jail,” the Clayton County Jail
4

remains at nearly 100 percent capacity, with most detainees housed three to a twobed cell. The third person sleeps on the floor near an open toilet. Detainees interact in close proximity to numerous others, with no physical distancing, during meal distribution, pill call, video court, and other out-of-cell activities.
14. Detainees share cells, showers, telephones, and other fixtures that are rarely if ever sanitized. To maintain personal hygiene, they are issued four ounces of liquid soap per week (for bathing, in-cell cleaning, and, in some instances, laundering of essential items) and small quantities of toilet paper and toothpaste.
15. Although COVID-19 is rapidly spreading through the jail, jailers have provided virtually no information to detainees about COVID-19 prevention.
16. For most detainees, the sum total of Defendants’ prevention effort has been to tell detainees to use a towel, t-shirt, sock, or underwear as a makeshift facemask, and to limit some (but not all) out-of-cell time to groups of 12 people. From mid-March through the end of May, Defendants made no discernible effort to ensure minimally adequate personal hygiene, facility sanitation, and disease prevention efforts.1
1 Following the start of Plaintiffs’ investigation into the jail’s conditions, jailers in early June distributed some facemasks and began cleaning certain areas of the jail more regularly, but those minor changes are insufficient to protect detainees from spreading infection. Cleaning occurs in a cursory manner, at irregular intervals, and
5

17. Even as the number of positive cases increased, Defendants failed to take reasonable, easy-to-implement measures to protect people. For example, for months, even medically vulnerable detainees had no jail-issued masks, and some still lack them. Former detainee F.S. used a cut-up sheet as a makeshift mask. M.B. wore a piece of torn underwear over her face. Plaintiff Mitchell bought a mask made of underwear from a detainee in exchange for two packets of soup.
18. Efforts to identify and isolate infected persons are often haphazard or nonexistent. When individuals exhibit and report symptoms consistent with COVID-19—such as fever, shortness of breath, and coughing—jailers often leave them in overcrowded cells for days before attempting to isolate them. Sometimes, symptomatic individuals are not isolated at all. They are instead told to submit a “sick call” request but must then wait up to a week before seeing a medical provider. Meanwhile, the infected individuals spread the coronavirus to the other occupants of their cells and dormitories.
19. In some cases, people who experience symptoms related to COVID19 have no timely way to request medical assistance because they lack access to the jail’s electronic kiosk system.
often at the initiative of individual detainees. Sanitizing products remain scarce and are often available only to officers.
6

20. If an infected person is removed from a cell, no consistent effort is made to sanitize the detainee’s former living areas or to quarantine those who shared the cell. Instead, new people are immediately assigned to occupy the beds of people who are suspected to be infected.
21. The need for court intervention is urgent. The following chart shows the steep increase in the number of detainees and staff who have tested positive for COVID-19 between April 8, 2020 and June 11, 2020.

Positive COVID-19 Tests Among People in the

Clayton County Jail as of June 11, 2020

50

45

40

Total

35

Positives

30

Detainee

25

Positives

20

Staff

15

Positives

10

5

0 Source: June 3, 2020 Open Records Request to Clayton Health District.

22. The rise in infections in May and June is a direct result of Defendants’

consistent and ongoing failures to take reasonable steps to mitigate the risk of a

COVID-19 outbreak in the jail.

23. The named Plaintiffs bring this action on behalf of themselves and

7

similarly situated detainees to end Defendants’ unlawful practices and vindicate their rights under the Eighth and Fourteenth Amendments to the United States Constitution, and under the Americans with Disabilities Act and the Rehabilitation Act.2
JURISDICTION AND VENUE 24. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343(a) (3) and (4) because it raises claims arising under the United States Constitution; 42 U.S.C. § 1983; Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131–12133; and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. The Court also has jurisdiction under 28 U.S.C. §§ 2241 and 2243 because Plaintiffs are in custody in violation of the Constitution, laws, and treaties of the United States. 25. The Court has authority to grant declaratory relief under 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure. 26. The Court has authority to grant injunctive relief under 28 U.S.C. § 2202 and Rule 65 of the Federal Rules of Civil Procedure.
2 Plaintiffs are filing declarations of Clayton County Jail detainees contemporaneously with this complaint.
8

27. The Atlanta Division of the Northern District of Georgia is the proper venue under 28 U.S.C. § 1391(b)(1) and Local Rule 3.1B(1) because all defendants are Georgia residents and at least one defendant resides in the Atlanta Division of the Northern District of Georgia; and under 28 U.S.C. § 1391(b)(2) and Local Rule 3.1B(3) because a substantial part of the acts and omissions giving rise to this action occurred in the Atlanta Division of the Northern District of Georgia.
PARTIES A. Plaintiffs 28. Randolph Mitchell is a 72-year-old African-American man. He has been confined to the Clayton County Jail since August 9, 2019. He has fewer than two months left to serve on a 12-month sentence for simple battery, a misdemeanor. He is currently assigned to Housing Unit 5-5. He has been diagnosed with high blood pressure and a heart condition. Mr. Mitchell is susceptible to serious illness or death if he contracts COVID-19. 29. Rhonda Jones is a 58-year-old African-American woman. She has been confined to the Clayton County Jail since April 9, 2020, for a charge of aggravated assault. A $10,000 bond was set in her case, but she cannot afford it. She is currently assigned to Housing Unit 3-3. She has chronic obstructive pulmonary disease and has been hospitalized twice in the past year for pneumonia.
9

Ms. Jones is susceptible to serious injury or death if she contracts COVID-19. 30. Michael Singleton is a 59-year-old African-American man. He has
been confined to the Clayton County Jail since February 17, 2020. He is currently assigned to Housing Unit 5-5. He has high blood pressure. He is serving a oneyear sentence for violation of probation. Mr. Singleton is susceptible to serious injury or death if he contracts COVID-19.
31. Barry Watkins is a 60-year-old Caucasian man. He has been confined to the Clayton County Jail since August 31, 2018, for a charge of theft by deception. A $5,500 bond was set in his case, but he cannot afford it. He is currently assigned to Housing Unit 5-1. He has Type I diabetes that requires a controlled diet and regular insulin injections. Mr. Watkins is susceptible to serious injury or death if he contracts COVID-19.
32. Plaintiffs sue on behalf of themselves and six classes of similarly situated detainees.
33. The principal classes are the Principal Pretrial Class and the Principal Post-Adjudication Class. Plaintiffs further seek to certify four subclasses: a Medically Vulnerable Pretrial Subclass, a Medically Vulnerable Post-Adjudication Subclass, a Disability Pretrial Subclass, and a Disability Post-Adjudication Subclass. Plaintiffs Jones and Watkins are the putative class representatives for the
10

pretrial classes, and Plaintiffs Singleton and Mitchell are the putative class representatives for the post-adjudication classes. Each class is defined below.
B. Defendants 34. Defendant Victor Hill is sued in his official capacity as the Sheriff of Clayton County, Georgia, a position he has held since January 1, 2013, and previously held from January 1, 2005 to December 21, 2008. Defendant Hill is the chief executive of the Clayton County Sheriff’s Office. In that role, he oversees and controls each of the Clayton County Sheriff’s Office’s four divisions: the Executive Operations Division, the Jail Operations Division, the Field Operations Division, and the Administrative Operations Division. As Sheriff, he is required by Georgia law to operate the Clayton County Jail system, to maintain the custody of people held in his jails, and to ensure safe and sanitary conditions of confinement. See O.C.G.A. §§ 42-4-4, 42-4-5. Defendant Hill is a resident of Clayton County, Georgia. At all times relevant to this complaint, Defendant Hill has acted under color of state law. The Clayton County Sheriff’s Office is a program or entity receiving federal financial assistance. See 29 U.S.C. § 794(b). 35. Defendant Roland Boehrer is sued in his official capacity as Chief Deputy for the Clayton County Sheriff’s Office. Defendant Boehrer was appointed as Chief Deputy by Defendant Hill. As Chief Deputy, Defendant Boehrer has been
11

delegated and exercises the Sheriff’s authorities in supervising and managing the Clayton County Sheriff’s Office’s operations, including operations in the Clayton County Jail. Defendant Boehrer reports to and is supervised by Defendant Hill. Defendant Boehrer is a resident of Clayton County, Georgia. At all times relevant to this complaint, Defendant Boehrer has acted under color of state law.
36. Defendant Terrance Gibson is sued in his official capacity as Jail Administrator for the Clayton County Sheriff’s Office. Defendant Gibson was appointed as Jail Administrator by Defendant Hill. As Jail Administrator, Defendant Gibson has been delegated and exercises the Sheriff’s authorities in supervising and managing the Clayton County Jail. Defendant Gibson reports to and is supervised by Defendants Hill and Boehrer. Defendant Gibson is a resident of Clayton County, Georgia. At all times relevant to this complaint, Defendant Gibson has acted under color of state law.
37. Defendant Kevin Thomas is sued in his official capacity as Jail Security Operations Section Commander for the Clayton County Sheriff’s Office. Defendant Thomas was appointed as Security Operations Section Commander by Defendant Hill. As Security Operations Section Commander, Defendant Thomas has been delegated and exercises the Sheriff’s authorities in supervising and managing the Clayton County Jail’s operations, including providing security and
12

ensuring detainees’ basic needs are met. Defendant Thomas reports to and is supervised by Defendants Hill, Boehrer, and Gibson. Defendant Thomas is a resident of Clayton County, Georgia. At all times relevant to this complaint, Defendant Thomas has acted under color of state law.
38. Defendant Maurice Johnson is sued in his official capacity as Jail Administrative Operations Section Commander for the Clayton County Sheriff’s Office. Defendant Johnson was appointed as Administrative Operations Section Commander by Defendant Hill. As Administrative Operations Section Commander, Defendant Johnson has been delegated and exercises the Sheriff’s authorities in supervising and managing the Clayton County Jail’s operations, including procuring necessary equipment for the jail and maintaining the jail’s physical plant. Defendant Johnson reports to and is supervised by Defendants Hill, Boehrer, and Gibson. Defendant Johnson is a resident of Clayton County, Georgia. At all times relevant to this complaint, Defendant Johnson has acted under color of state law.
13

ALLEGATIONS OF FACT A. The Clayton County Jail Is Unsanitary, Is Understaffed, and Holds
Three People in Cells Built for Two. 39. Clayton County, Georgia, is a municipal entity and political subdivision of the State of Georgia. It is located in the Atlanta metropolitan area approximately 20 miles south of Atlanta. It has a population of approximately 292,000. 40. The Sheriff of Clayton County, Defendant Victor Hill, operates the Clayton County Jail, a detention facility located in the Harold E. Banke Justice Center at 9157 Tara Boulevard, Jonesboro, Georgia. The jail has been in operation since 2000 and holds primarily pretrial detainees for Clayton County and the cities of Jonesboro, Lake City, Forest Park, Lovejoy, Morrow, and Riverdale. 41. The Clayton County Jail has 768 cells located in eight octagonal housing units, divided between four buildings. 42. Each housing unit consists of six pods, and each pod contains 16 cells. An officer assigned to the booth in the center of each housing unit is responsible for monitoring all six pods. 43. In addition to cells, the jail has eight open dormitories designed for up to 48 people each. The dormitories house “inmate workers,” who maintain the jail
14

and perform services in the community, and people serving work release or “weekender” sentences.
44. The following image depicts the jail’s housing units and dormitories, as viewed from above:
45. Although the Clayton County Jail has a nominal bed capacity of 1,920, in practice it does not hold that many beds because maintenance problems render some cells unusable, and operational concerns, such as classification decisions, limit where certain detainees may be housed.
46. As a result of these operational and maintenance considerations, the jail regularly places three—and sometimes four—people in cells designed for only two, even when the jail’s population is below its design capacity.
47. When three or four people are placed in a cell, the third and fourth 15

persons in each cell sleep on a thin mattress placed on the floor. An open toilet shared by cell occupants is feet away from where that person sleeps.3
48. The following image depicts the interior of a standard cell:
49. Detainees held in cells normally get one to two hours per day of out-
3 Requiring prisoners to sleep on the floor as a matter of routine, as occurs in the Clayton County Jail, has been found unconstitutional. See, e.g., Lareau v. Manson, 651 F.2d 96, 107-08 (2d Cir. 1981); cf. Fambro v. Fulton Cty., Ga., 713 F. Supp. 1426, 1428–29 (N.D. Ga. 1989) (concluding that a combination of conditions, including requiring detainees to sleep on floor, resulted in “unquestionably unconstitutional” conditions sufficient to support a release order); Union County Jail Inmates v. DiBuono, 713 F.2d 984, 996 (3d Cir. 1983) (criticizing “the unsanitary and humiliating practice of forcing detainees to sleep on mattresses placed either on the floor adjacent to the toilet and at the feet of their cellmates, or elsewhere in the jail.”). At a minimum this situation imposes a duty on Defendants to take reasonable steps to mitigate the health hazards that these cramped quarters create.
16

of-cell time and are confined to their cells continuously for the remainder of the time.
50. The majority of two-person cells in the jail house three detainees. This is in part because the population of the jail has sharply increased in recent years.
51. Over the past year, the detainee population of the jail has been near or above its design capacity, averaging 101 percent of capacity from June 2019 to June 2020.
52. The population of the jail in April this year exceeded the jail’s nominal capacity, and was a marked increase from the population level at the same time in previous years:

Clayton County Jail Population in April: 2015 to 2020
2100

2000

1900 1800

Nominal Jail Capacity

1700 1600

Actual Population

1500

1400

1300

Source: Ga. Dep't of Community Supervision Jail Reports, April 2015 to April 2020

17

53. Defendant Hill, the controversial4 sheriff of Clayton County,
cultivates an image of himself as a comic book hero.5 He refers to the jail
eponymously as “The Hill-ton,” and bills it as “Georgia’s toughest para-military
jail.”6 Defendant Hill has established various policies and practices with no
discernible purpose other than to dehumanize people in his custody. Detainees
must greet Hill and other supervisors by loudly announcing the supervisor’s
presence, immediately placing their hands behind their back, facing the closest
available wall, and remaining silent unless spoken to—including detainees who are
locked inside their cells when supervisors enter housing units. Defendant Hill has
adopted a practice of administering repulsive “special management meals”—more
commonly known as “nutraloaf”—as punishment for certain infractions. The jail
is known among detainees as a “hands-on facility” with respect to use-of-force
4 See, e.g., Leon Stafford, Victor Hill Rival Says Clayton Sheriff Arrested Wife to Intimidate Him, Atlanta J.-Const., Aug. 16, 2018 (“Over the years . . . , detractors have described his behavior as everything from reckless to criminal.”). 5 Advisory, Clayton Cty. Sheriff’s Office, The Origin of ‘The Sheriff’s Batcave Café’, Feb. 3, 2020, local.nixle.com/alert/7793824 (“Sheriff Victor Hill now dubbed as ‘The Crime Fighter’ has been personified as Clayton County’s ‘Dark Knight’, and the county has become his ‘Gotham City’. The Sheriff’s patrol vehicle starkly resembles the Bat-Mobile, and his jail dubbed ‘The Hill-ton’, has been teased to be his ‘Arkham Asylum’.”); see also Kate Briquelet, Batman Sheriff Shoots Woman, Walks Free, The Daily Beast, Apr. 14, 2017, https://bit.ly/3gg7SJi. 6 See, e.g., Alice Queen, Odd Coincidence Surprises Clayton Sheriff Victor Hill, Deputies, Clayton News-Daily, May 9, 2020, https://bit.ly/2Bx0Ocz.
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practices, meaning that officers frequently resort to unnecessary physical force to punish detainees. Defendants have used restraint chairs to punish detainees who displease the Sheriff. Detainees are punished for committing minor rule infractions, such as failing to fold the end of their toilet paper roll into the letter “V.”
54. Defendant Hill has failed to prioritize vital aspects of responsible jail management. He and his staff hold around 2,000 people—often people accused of misdemeanors, technical probation violations, or other minor offenses—in a facility where detainees’ basic needs go unmet.
55. As noted above, people assigned to cell-based housing units, as most detainees are, spend 22 to 23 hours per day confined in a small space, usually with two and sometimes three other people.
56. When they come out of their cells, they are restricted to a dayroom area inside of the pod for “free time,” which is detainees’ opportunity to shower, use the telephone, or use the electronic kiosk, a computer device used to file requests for medical care, submit grievances, and order items from the jail commissary. Detainees interact with other detainees during free time, often conversing or playing card games.
57. Each pod has two or three showers for up to 48 detainees. Through
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the end of May 2020, the showers were cleaned infrequently. In some pods, showers were not cleaned for months at a time, because jail officers failed to provide detainees with cleaning materials. In other pods, showers were cleaned at most once per week. Assuming that each detainee in a pod showers daily, that the pod has three working showers (not all do), and that showers are cleaned weekly (most are not), the average shower would be used at least 112 times between cleanings. The showers thus present an obvious way for contagious diseases to spread among many detainees.
58. Each dayroom also has a toilet and sink. Though most detainees have toilets in their cells, certain cells have toilets that do not work, and detainees assigned to those cells must wait for free time to use the dayroom toilet. Like the showers, the toilet and sink in the dayroom were cleaned infrequently (less than weekly in most units) through late May, making them another obvious hub for contagious diseases to pass between detainees.
59. Most pods have five telephones for up to 48 detainees. The telephones are spaced approximately 18 inches apart, resulting in people using the telephones in close proximity to one another. Many telephones are broken. In none of the units are detainees provided with sanitary wipes or disinfectant to clean the telephone between uses. As a result, detainees who use the telephones have
20

indirect contact with numerous people who have touched and breathed on the telephones before them.
60. Most but not all pods have at least one electronic multipurpose kiosk. As with the telephones and showers, the jail has created no system by which the kiosks are cleaned between uses, resulting in indirect contact among the numerous detainees who use them.
61. Detainees in certain pods are denied any access to a kiosk. In addition, jail staff often deny detainees access to the kiosk as punishment for minor rule violations. For detainees who cannot access a kiosk, there is no way to submit a medical request form or other kind of request, because the jail does not use or distribute paper forms.
62. A purported grievance procedure is available on the kiosk only, not through paper forms. Grievances are rarely answered, and detainees cannot have more than two grievances pending at a time. People who have two grievances pending cannot file grievances about new problems. Many detainees have had two grievances pending for months without a response. There is no way to withdraw a pending grievance via the kiosk, and detainees are given no guidance about how to appeal a grievance decision. No information about the grievance procedure is given to detainees when they enter the jail; detainees do not receive inmate
21

handbooks explaining the grievance procedure and other jail rules. 63. Detainees in segregation units and other housing units without a kiosk
are completely barred from accessing the grievance procedure, as are detainees who have been deprived of kiosk access as a disciplinary sanction.
64. The jail is designed to have at least two officers in each housing unit, one in a central booth overseeing up to 192 detainees and the other officer on the floor. Currently, however, due to understaffing, most housing units have only a single officer in a booth overseeing up to 288 detainees. The officer in the booth remains in the booth unless relieved by another officer to conduct headcounts, distribute meals or medication, or respond to problems.
65. The Clayton County Jail lacks sufficient resources to effectively respond to emergencies. Due to understaffing, detainees have difficulty notifying staff members of emergencies and face delays in getting aid when emergencies occur. Although cells originally had intercoms and emergency call buttons installed, the call buttons appear to have been disabled in many cells. To get officers’ attention, detainees must yell and beat on their cell doors, then wait for an available officer.
66. Understaffing, lack of resources, and poor supervision by administrators prevent the jail from providing adequate sanitation and hygiene.
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67. At best, the sum total of personal hygiene supplies issued to detainees includes one approximately four-ounce bottle of liquid soap per week, toilet paper, and a toothbrush and toothpaste. In practice, the jail often runs out of one or more of these items each week, resulting in some detainees going without soap, toothpaste, or toilet paper. Some detainees must wait a week or more after entering the jail to receive a toothbrush. Women often go without sanitary napkins and have to stuff their underwear (if they have any) with toilet paper (if they have any) during their menstrual cycles. Detainees are only permitted to shave for court appearances, if at all. The small amount of liquid soap issued is all detainees have with which to clean themselves, their cells, and in some cases, their clothing for an entire week. This is insufficient to maintain minimally adequate personal hygiene, especially during a pandemic.
68. Housing unit cleaning is ordinarily assigned to “inmate workers,” sometimes called trustees, who live in open dormitories.
69. Due to lack of supplies and inadequate supervision, the “inmate workers” responsible for most housing units do not regularly clean common area tables, telephones, kiosks, showers, bathrooms, door handles, and other items used frequently by detainees.
70. There is no system in place for supervisory officers to ensure that
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housing units are sanitary. Some detainees recognize the importance of sanitation and proactively attempt to clean the units with what few supplies are available— such as bath soap—but most officers do not promote those efforts because Defendants are indifferent to the matter.
71. The overcrowded cells where detainees spend most of their time are almost never sanitized. The only cleaning materials provided regularly are a broom and a dirty mop for the floor. In some housing units, there is only one mop for all 96 cells. There is no regular schedule for cleaning and sanitizing toilets, sinks, bedframes, walls, doors, and other cell fixtures. Some detainees resort to using their four-ounce weekly supply of liquid soap and bits of toilet paper to wipe down their cells. While jailers reportedly increased the frequency of cell cleaning in late May, detainees report that such cleaning often involves only the spraying of a teaspoon-like quantity of cleaner into their cell sinks.
72. The lack of adequate sanitation is evident throughout the jail. Many cells and showers have significant amounts of mold and mildew in them. Dorms are infested with roaches, spiders, gnats, and ants.
73. The only clothing items issued to detainees upon entry into the jail are one jumpsuit, one towel, and one washcloth. The jail does not issue socks or undergarments, which must be purchased by detainees. Those who lack money to
24

purchase undergarments go without them. 74. Lacking other options, detainees who wish to clean the toilets, sinks,
and other fixtures in their cells sometimes resort to using their jail-issued towel and washcloth, or pieces of toilet paper, to wipe down surfaces.
75. Laundry is supposed to be collected approximately once every week to two weeks. There are often not enough clean jumpsuits to go around, resulting in detainees wearing the same jumpsuit for weeks or even a month at a time. Many detainees use the same towels and washcloths for months between laundering. Sheets are often not laundered for a month or more at a time. Many detainees go weeks without sheets, sleeping directly on thin plastic mattresses while waiting for their sheets to be returned.
76. The 20-year-old jail facility has recurring maintenance issues. Many toilets are inoperable. Some cells have putrid standing water in them from leaking toilet fixtures. In certain pods, water leaks result in puddles of standing water in the common areas. Defective showers flood the dayroom and cause water to seep into cells. Some detainees resort to placing their blankets around their toilets or against their cell doors to absorb the water.
77. The Sheriff’s budget for fiscal year 2020 is $37.8 million, and $38.5
25

million has been proposed for 2021.7 As Sheriff, Defendant Hill has broad
discretion to spend that budget as he sees fit. See, e.g., Chaffin v. Calhoun, 262
Ga. 202, 203 (1992) (“[A]lthough the county commission has the power and the
duty to issue a budget, the county commission may not dictate to the sheriff how
that budget will be spent in the exercise of his duties.”). Accordingly, Defendant
Hill could allocate more of his budget to the jail to address many of the problems
discussed above. But he spends his budget on other things.
78. In the recent past, those things have reportedly included patrol vehicles customized with lights that flash his initials,8 first-class airfare to various events around the country,9 week-long stays at casino hotels,10 four-day tai chi workshops,11 “extreme video eyewear,”12 machetes,13 and $2,000 worth of
“commemorative coins which feature his name on one side, and a Batman emblem
7 See Clayton Cty. Bd. of Comm’rs, Annual Operating Budget 38 (2020), available at https://www.claytoncountyga.gov/Home/ShowDocument?id=12546. 8 See, e.g., Victor Hill, Facebook (Apr. 3, 2020), https://www.facebook.com/ sheriff.hill/posts/2912826828793865. 9 See, e.g., News Staff, The Money Trail: Clayton County Sheriff Victor Hill, 11Alive News, Jul. 30, 2015, https://bit.ly/38gY5zZ. 10 Id. 11 Id. 12 Id. 13 Id.
26

on the other.”14 79. By contrast, some of the roughly 2,000 detainees at the Clayton
County Jail do not receive their allotments of bath soap, toilet paper, sanitary napkins, and toothpaste.
80. In sum, the Clayton County Jail is understaffed, unsanitary, and chronically mismanaged. The jail’s deficiencies in these areas are so obvious that jailers knew about them long before the COVID-19 pandemic prompted official declarations of a public emergency in March 2020. Defendants’ response has been to disregard the entrenched problems at this jail, even after the onset of a global pandemic that threatens the lives of detainees, staff, and the community.
B. The Coronavirus Pandemic Presents a Substantial Risk of Serious Harm to People in the Clayton County Jail.
81. COVID-19 is a highly contagious respiratory disease that spreads aggressively from person to person and can cause death. The virus is easily transmitted through respiratory droplets, close personal contact, and from contact with contaminated surfaces or objects.15 COVID-19 is thought to survive for three
14 Id. 15 See World Health Organization, Modes of Transmission of Virus Causing COVID19: Implications for IPC Precaution Recommendations (Mar. 29, 2020), https://bit.ly/2VEsx1J.
27

hours in the air in droplet form, up to twenty-four hours on cardboard, up to two
days on plastic, and up to three days on steel.16
82. Infected people—who may be asymptomatic—can spread the disease
even through indirect contact with others. The virus’s current estimated incubation
period is between 2 and 14 days.17 Recent studies show that as many as half of all
transmitted cases pass from an infected person with few or no symptoms.18
83. As of July 1, 2020, over 10 million persons worldwide have tested
positive for COVID-19, and over 500,000 have died.19 In the United States, over
2.5 million people have tested positive for COVID-19, and over 125,000 people
have died.20 Over the past three months, an average of more than 1,200 Americans
have died from complications related to COVID-19 each day.21
16 Neeltje van Doremalen et al., Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, New England J. Medicine (Mar. 17, 2020), https://bit.ly/2Vxdjvx. 17 U.S. Ctrs. for Disease Control & Prevention, Coronavirus Disease COVID-19 Symptoms (May 13, 2020), https://bit.ly/2YSWbT8. 18 David Cox, Could Nearly Half of Those with COVID-19 Have No Idea They Are Infected?, The Guardian, May 30, 2020, https://bit.ly/3dUSKzo. 19 World Health Org., Coronavirus Disease (COVID-19) Pandemic, https://bit.ly/3ifdyF8. 20 U.S. Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID19) Cases in the US (June 30, 2020), https://bit.ly/2TtboH5. 21 Id.
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84. Projections by the U.S. Centers for Disease Control and Prevention
(CDC) indicate that over 200 million individuals in the United States could be
infected with COVID-19 over the course of the epidemic without effective public
health intervention,22 with as many as 2.2 million deaths in the worst projections.23
85. In Georgia, at least 80,000 people have tested positive for COVID-
19.24 More than 2,800 have died.25 The numbers in the state are trending upwards:
reported COVID-19 cases have risen to a new high in each of the past three
weeks.26 Researchers at Georgia Tech predict that Georgia’s COVID-19 infections
and deaths will continue to rise through mid-August.27 By the peak, the model
predicts that without strict social distancing as many as 17,900 Georgians could die
and that the illness could impact at least 28 percent of the state’s population.28
22 James Glanz et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say, N.Y. Times, Mar. 20, 2020, https://nyti.ms/2QAE7Z8. 23 Holly Yan, More Than 3,000 people in the US Have Died from Coronavirus, CNN, Mar. 31, 2020, https://cnn.it/3eQPTIZ. 24 Ga. Dep’t of Public Health, Daily Status Report (June 30, 2020), https://bit.ly/2VC9NzP. 25 Id. 26 J. Scott Trubey, Georgia Coronavirus Cases Spike Among Young Adults as Virus Surges, Atlanta J.-Const., June 24, 2020, https://bit.ly/31zXhVx. 27 Beth Galvin, Georgia Tech Model Predicts Summer Jump in COVID-19 Cases, Deaths, Fox 5 Atlanta, May 11, 2020, https://bit.ly/3if9Jjg. 28 Id.
29

86. A recent study found that COVID-19, the disease caused by the coronavirus, is between ten and forty-four times deadlier than a severe seasonal influenza.29
87. COVID-19 can damage lung tissue, lead to acute respiratory distress syndrome, and affect cardiac functions. Emerging evidence also indicates that the disease may be associated with other serious health problems. For example, COVID-19 can trigger an over-response in the immune system and further damage the body’s tissues or organs, including permanent harm to the kidneys or neurologic injury.
88. Complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days.
89. Further, patients with serious cases of COVID-19 need advanced medical support with highly specialized equipment that is in limited supply.
90. Everyone is at risk of contracting the coronavirus, but certain groups of people face elevated risk of severe illness. Age is a significant risk factor for
29 Jeremy Faust & Carlos del Rio, Assessment of Deaths From COVID-19 and From Seasonal Influenza, JAMA Intern. Med. (May 14, 2020), https://bit.ly/2YPH1O9; see also Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, Wall St. J., Mar. 10, 2020, https://on.wsj.com/2YNRM3M.
30

complications and death. People over the age of 50 account for 74 percent of patients hospitalized.30 The mortality rate is at least 1 to 3 percent for those over
55.31 Even some younger and healthier people who contract COVID-19 may
require supportive care.
91. Serious illness and death are also significantly more common among
people with underlying chronic health conditions regardless of age.32 The case
fatality rate exceeds 5 percent (1 in 20 cases) for those with pre-existing medical
conditions including cardiovascular disease, respiratory disease, diabetes, and
immune compromise. One analysis found mortality rates of 13.2 percent for
patients with cardiovascular disease, 9.2 percent for diabetes, 8.4 percent for
30 U.S. Ctrs. for Disease Control & Prevention, Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Cases, Morbidity and Mortality Weekly Report (Apr. 17, 2020), https://bit.ly/2Zqt4Wk. 31 Stephanie Bialek et al., Severe Outcomes Among Patients With COVID-19, Ctrs. for Disease Control & Prevention (Mar. 27, 2020), https://bit.ly/3dOASWL; Xianxian Zhao et al., Incidence, Clinical Characteristics and Prognostic Factor of Patients with COVID-19: A Systematic Review and Metaanalysis (Mar. 20, 2020), https://bit.ly/2NMDbzd. 32 See Harvard Medical School, If You Are at Higher Risk: How to Reduce Risk of Infection and What to Do If You Get Sick, Harvard Health Publishing (May 6, 2020), https://bit.ly/31CzBjo; see also Ctrs. for Disease Control & Prevention, Groups at Higher Risk for Severe Illness, https://bit.ly/2BTYiNt.
31

hypertension, 8.0 percent for chronic respiratory disease, and 7.6 percent for
cancer.33
92. African Americans are at increased risk for the medical conditions and
disabilities that increase the risk of serious illness or death from COVID-19. The
rate of diabetes is 60 percent higher in African Americans than in white
Americans;34 the rate of hypertension is 40 percent higher.35 Recent analysis of
CDC data shows that the COVID-19 mortality rate among African Americans is
2.3 times that of white Americans.36 The CDC released a study showing that,
although Georgia’s population is 32 percent African-American, African-American
people account for approximately 83 percent of the hospitalizations from COVID-
19 in the state.37 Clayton County is over 72 percent African-American.38 Three of
33 World Health Org., Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19) 12 (Feb. 28, 2020), https://bit.ly/38lGR4d. 34 U.S. Dep’t of Health and Human Services, Office of Minority Health, Diabetes and African Americans, https://bit.ly/3dNmvlP. 35 U.S. Dep’t of Health and Human Services, Office of Minority Health, Heart Disease and African Americans, https://bit.ly/31CwUya. 36 APM Research Lab Staff, COVID-19 Deaths by Races and Ethnicity in the U.S., APM Research Lab (May 12, 2020), https://bit.ly/2YTaPtz. 37 Jeremy Gold et al., Characteristics and Clinical Outcomes of Adult Patients Hospitalized with COVID-19 — Georgia, March 2020, Ctrs. for Disease Control & Prevention (May 8, 2020), https://bit.ly/3dQSX6L. 38 U.S. Census Bureau, QuickFacts: Clayton County, Georgia, https://bit. ly/2NNM5MN.
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the named Plaintiffs are African-American. 93. The coronavirus causes serious illness in about 20 percent of people it
infects. Patients who do not die from serious cases of COVID-19 may face prolonged recovery periods, including extensive rehabilitation from neurologic damage, loss of digits, and loss of respiratory capacity.39 At this early point, not all of the long-term effects of the disease are known.
94. There is no vaccine for COVID-19, nor is there any known medication to prevent or cure infection from the coronavirus. It is unclear whether people who have recovered from COVID-19 are immune to reinfection. The only known effective measure to reduce the risk of severe illness or death to individuals is to prevent new infections.
95. According to health experts, the only way to prevent new infections and mitigate spread of the virus is to avoid exposure to infected persons and contaminated surfaces. This is accomplished by avoiding close contact with others through social distancing and the use of personal protective equipment; maintaining good personal hygiene, particularly through handwashing and
39 See U.S. Ctrs. for Disease Control & Prevention, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) (June 2, 2020), https://bit.ly/2C0uLSk.
33

avoiding touching one’s face; and disinfecting surfaces that may be contaminated.40
96. Social distancing—isolating oneself from other people at a minimum
distance of six feet—is especially significant because the virus can spread through people who have no apparent symptoms.41
97. Public officials in Georgia have reordered everyday life to
acknowledge these new risks. Governor Brian Kemp declared COVID-19 a public
health emergency, required medically fragile and older Georgians to shelter in
place, and ordered all Georgians who leave their homes to adhere to social distancing measures recommended by the CDC.42 Both Governor Kemp and
Georgia Department of Public Health Commissioner Kathleen Toomey have urged Georgians to stay at home if they can, and to wear masks when in public.43
40 Press Release, Ga. Dep’t of Public Health, Georgia DPH Exceeds 100,000 COVID-19 Tests in 10 Days Testing Now Available to All Georgians (May 7, 2020), https://bit.ly/2LSOfK4. 41 Katherine Courage, How People are Spreading COVID-19 Without Symptoms, Vox, Apr. 22, 2020, https://bit.ly/3dS3aQ8. 42 Ga. Exec. Order No. 05.28.20.02 (May 28, 2020), https://bit.ly/3iqbgDs. 43 Press Release, Office of the Gov., Gov. Kemp, Dr. Toomey Urge Georgians to Wear Face Coverings to Fight COVID-19 (May 1, 2020), https://bit.ly/2AptRhG (“Wear a face covering in public settings, practice social distancing, and wash your hands frequently.”); see also Elwyn Lopez, ‘I Worry That They Don’t Understand’:
34

Additionally, under a public health control order entered by Commissioner
Toomey, individuals with suspected or confirmed cases of COVID-19 are currently
required to self-isolate, and those who have been exposed to COVID-19 under
circumstances likely to result in an infection are required by law to self-
quarantine.44 Failure to comply with the order is punishable as a misdemeanor.45
98. Jail and prisons become ticking time bombs during a pandemic.
According to the Georgia Department of Public Health, “Correctional and
detention facilities are considered at very high risk for COVID-19 spread and
outbreaks due to having a high volume of people within a close, congregate
setting.”46 The CDC similarly warns that the “congregate environments” in prisons
and jails “heighten[] the potential for COVID-19 to spread once introduced.”47
Georgia Health Commissioner Reiterates Importance of Masks, Social Distancing, 11Alive, May 4, 2020, https://bit.ly/3gcZIBe. 44 Ga. Dep’t of Public Health, Fifth Am. Admin. Order for Public Health Control Measures 1-4 (May 12, 2020). With minor changes not relevant here, the order has been in effect since March. See, e.g., Ga. Dep’t of Public Health, Am. Admin. Order for Public Health Control Measures 1-4 (Mar. 23, 2020). 45 Id. at 4; see O.C.G.A. § 31-5-8. 46 Ga. Dep’t of Public Health, Interim Guidance for Management of COVID-19 in Correctional and Detention Facilities in Georgia 1 (Apr. 15, 2020), https://bit.ly/3bvwECh. 47 U.S. Ctrs. for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities 6 (Mar. 23, 2020), https://bit.ly/3bu83xS.
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99. In addition to causing significant harm to those incarcerated, outbreaks of COVID-19 in jails can cause additional infections, hospitalizations, and deaths among jail staff and the surrounding community in which a jail sits.
100. Recognizing these risks, on March 30, 2020, the CDC published guidance for correctional and detention facilities, including local jails, to follow in order to minimize the risk of an outbreak.48 The CDC recognized that incarcerated people must exist “within congregate environments” that “heighten[] the potential for COVID-19 to spread once introduced.”49 Indeed, “[t]here are many opportunities for COVID-19 to be introduced into a correctional or detention facility” including “daily staff ingress and egress,” the “transfer of incarcerated/detained persons between facilities and systems,” the transport of people to “to court appearances,” and the “high turnover” of “admit[ted] new entrants.”50 Accordingly, the CDC recommends that correctional facilities undertake the following preventive measures, few of which are being undertaken in the Clayton County Jail:
48 U.S. Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://bit.ly/2BX2gES. 49 Id. 50 Id.
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• Post signage throughout the facility communicating COVID-19 symptoms and hand hygiene instructions, ensure such signage is understandable for non-English speaking people as well as those with low literacy, and provide clear information about the presence of COVID-19 cases within a facility and the need to increase social distancing and maintain hygiene precautions;
• Provide a no-cost supply of and access to soap to detained persons, sufficient to allow frequent hand washing.
• Provide running water, hand drying machines or disposable paper towels for hand washing, and tissues (providing no-touch trash receptacles for disposal);
• Ensure that sufficient stocks of cleaning supplies are on hand and available, and have a plan in place to restock items as needed, including tissues, cleaning supplies, and EPA-registered disinfectants effective against the virus that causes COVID-19;
• Ensure that sufficient stocks of personal protective equipment (PPE) and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility, including standard medical supplies for daily clinic needs, and recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls);
• Consider relaxing restrictions on allowing alcoholbased hand sanitizer in the secure setting where security concerns allow. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty;
37

• Suspend co-pays for incarcerated people seeking medical evaluation for respiratory symptoms;
• Implement “intensified cleaning and disinfecting procedures” that clean and disinfect high-touch surfaces and objects “[s]everal times per day,” and ensure adequate supplies to support intensified cleaning and disinfection practices”;
• Perform pre-intake screening for all new entrants, enforce increased space between all new entrants in waiting areas, and implement daily temperature checks in housing units where COVID-19 cases have been identified;
• “[E]nsure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms,” including an evaluation “to determine whether COVID-19 testing is indicated”;
• If an individual has symptoms of COVID-19 (fever, cough, shortness of breath), require the individual to wear a face mask and place her under medical isolation; and
• Implement social distancing strategies to increase space between individuals, including by rearranging bunking to ensure that beds are at a minimum six feet apart in all directions, and increasing space in lines and waiting areas (ideally a distance of six feet), regardless of the presence of symptoms.
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101. On May 15, 2020, the CDC released its first report on the extent of COVID-19 outbreaks in correctional facilities across the country.51 Eighty-six
percent of reporting jurisdictions had at least one confirmed case among
incarcerated or detained persons or staff members. In the report, the CDC cites new data demonstrating that “symptom screening alone is inadequate to promptly
identify and isolate infected persons in congregate settings such as correctional and detention facilities.”52 To supplement strategies of screening and isolation, the
CDC recommends that correctional facilities should implement additional strategies to prevent and manage the spread of the virus, including by “physical
distancing,” “use of cloth face coverings,” “intensified cleaning,” “infection control training for staff members,” and “disinfection of high-touch surfaces in shared space.”53
102. Experts predict that “[a]ll prisons and jails should anticipate that the
51 Megan Wallace et al., U.S. Ctrs. for Disease Control & Prevention, COVID-19 in Correctional and Detention Facilities—United States, February–April 2020, Morbidity and Mortality Weekly Report (May 15, 2020), https://bit.ly/3ig7MTT. 52 Id.; Most people do not show symptoms for two to fourteen days while being contagious. See Coronavirus Disease COVID-19 Symptoms, Ctrs. for Disease Control & Prevention (May 13, 2020), https://bit.ly/2VB4KzV. Others—as many as 50 percent of those infected—never exhibit any symptoms at all. See Courage, How People are Spreading COVID-19 Without Symptoms. 53 Id.
39

coronavirus will enter their facility.”54 Indeed, the number of people in U.S.
prisons who are known to be infected doubled in the past month to more than
68,000.55 At least 657 people who live or work in U.S. jails or prisons have died of
complications related to COVID-19.56
103. In mid-March, the Rikers Island jail complex in New York City had
no confirmed cases of COVID-19. By March 30, 167 detainees, 114 correctional
staff, and 20 health workers at Rikers Island had tested positive for COVID-19.
Today, more than 1,700 people working or incarcerated in the New York City jails
have tested positive, including more than 1,200 staff.57 The Chief Medical Officer
of Rikers Island has described the spreading COVID-19 infection as a “public
health disaster unfolding before our eyes.”58
54 Evelyn Cheng & Huileng Tan, China Says More than 500 Cases of the New Coronavirus Stemmed from Prisons, CNBC, Feb. 20, 2020, https://cnb.cx/2C0hYyV (quoting Tyler Winkelman, co-director of the Health, Homelessness, and Criminal Justice Lab at the Hennepin Healthcare Research Institute in Minneapolis). 55 Timothy Williams, et al., Coronavirus Cases Rise Sharply in Prisons Even as They Plateau Nationwide, N.Y. Times, June 16, 2020, https://nyti.ms/3hxhdOs. 56 Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, https://nyti.ms/39jvJEY. 57 Jan Ransom, Virus Raged at City Jails, Leaving 1,259 Guards Infected and 6 Dead, N.Y. Times, May 20, 2020, https://nyti.ms/2zhF1UW. 58 Miranda Bryant, Coronavirus Spread at Rikers Is a ‘Public Health Disaster’, Says Jail’s Top Doctor, The Guardian, Apr. 1, 2020, https://bit.ly/2V1SuqU.
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104. The Cook County Jail in Chicago underwent a similar trajectory,
leaping from two confirmed COVID-19 cases on March 23 to more than 350
confirmed cases two weeks later.59 Today, more than 1,000 people have been
infected.60 Seven detainees and three staff members have died.61 Nurses at Cook
County’s Stroger Hospital have warned that the virus is a “growing beast” that
threatens not only staff and people behind bars but all of Cook County.62
105. As of July 1, the five largest COVID-19 clusters in the country were
all correctional or detention facilities.63 Mass testing reveals that the virus spreads
quickly and often invisibly through correctional facilities.64
106. For these reasons, medical and public health experts have urged
emergency action to fight the spread of COVID-19 in jails and other carceral
59 Williams & Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars. 60 N.Y. Times, Coronavirus in the U.S.: Latest Map and Case Count. 61 Diane Pathieu, Cook County Correctional Officer Antoine Jones Dies of Apparent COVID-19 Complications, Sheriff's Office Says, WLS, May 11, 2020, https://abc7.ws/2VTeOV9. 62 Shannon Heffernan, Nurses Warn COVID-19 Cases At Cook County Jail Aren’t Just Staying Behind Bars, WBEZ, Chicago’s NPR, Apr. 11, 2020, https://bit.ly/2C0vyCM. 63 N.Y. Times, Coronavirus in the U.S.: Latest Map and Case Count. 64 Linda So & Grant Smith, In Four U.S. State Prisons, Nearly 3,300 Inmates Test Positive for Coronavirus—96% Without Symptoms, Reuters, Apr. 25, 2020, https://reut.rs/3dQRRYs.
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facilities, including release of particularly vulnerable individuals, improved access
to medical care, compliance with CDC guidelines, and more.65 Public health
experts, including Dr. Gregg Gonsalves,66 Dr. Ross MacDonald,67 Dr. Marc
Stern,68 Dr. Oluwadamilola T. Oladeru,69 and Dr. Anne Spaulding70 have all
strongly cautioned that people booked into and held in jails are likely to face
serious, even grave, harm due to the outbreak of COVID-19.
107. Across the country, governments and jail staff have concluded that
targeted jail release measures are a necessary and appropriate public health
intervention to the threat that COVID-19 poses to incarcerated people and the
65 See, e.g., Brad Lander, Doctors in NYC Hospitals, Jails, and Shelters Call on the City to Take More Aggressive Action to Combat the Spread of Coronavirus, Medium, Mar. 12, 2020, https://bit.ly/2ZrObrg; Ltr. from Johns Hopkins faculty to Gov. Hogan, Mar. 25, 2020, https://bit.ly/2YMHFfA. 66 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, Connecticut Mirror, Mar. 11, 2020, https://cutt.ly/BtRSxCF. 67 Craig McCarthy & Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ N.Y. Post, Mar. 19, 2020, https://cutt.ly/ptRSnVo. 68 Dr. Marc F. Stern, Washington State Jails Coronavirus Management Suggestions in 3 “Buckets,” Washington Ass’n of Sheriffs & Police Chiefs (Mar. 5, 2020), https://cutt.ly/EtRSm4R. 69 Oluwadamilola T. Oladeru et al., What COVID-19 Means for America’s Incarcerated Population—And How to Ensure It’s Not Left Behind, HealthAffairs Blog, Mar. 10, 2020, https://cutt.ly/QtRSYNA. 70 Dr. Anne C. Spaulding, Coronavirus COVID-19 and the Correctional Jail, Emory Ctr. for the Health of Incarcerated Persons (Mar. 9, 2020).
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surrounding community. For example, New York City has released more than 1,600 people;71 New Jersey 1,000 people;72 Cuyahoga County, Ohio more than 800 people.73
108. Across Georgia, positive tests in correctional facilities continue to
rise. As of July 1, the Georgia Department of Corrections (GDC) had confirmed 888 positive cases among people in its custody and 223 prison staff.74 Twenty-two incarcerated people and one staff member have died.75 There have also been numerous outbreaks confirmed in Georgia’s jails,76 including one currently
emerging at the Clayton County Jail.
71 Rosa Goldensohn, COVID-Sick at Rikers On $1 Bail—And A Parole Violation, The City, May 3, 2020, https://bit.ly/3dLW3c8. 72 Tracey Tulley, 1,000 Inmates Will Be Released From N.J. Jails to Curb Coronavirus Risk, N.Y. Times, Mar. 23, 2020, https://nyti.ms/3dQyYVV. 73 Ronnie Dahl, Will Reduced Crowding at Cuyahoga County Jail Continue After the Coronavirus Crisis?, Cleveland 19 News, May 3, 2020, https://bit.ly/31ABPiZ. 74 Ga. Dep’t of Corrs., Confirmed COVID-19 Cases, https://bit.ly/3ifcCR8. 75 Id. 76 See Lauren Gill, Advocates Push for Details on Georgia’s Response to COVID19 in Prisons and Jails, The Appeal, May 8, 2020, https://bit.ly/2VCLyl6 (noting “at least 31 prisoners and seven staff members have tested positive” at Fulton County Jail); Jonathan Raymon, 8 Inmates, 1 Employee Test Positive for COVID-19 at Gwinnett County Jail, 11Alive, May 22, 2020, https://bit.ly/2YOhHZ5.
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Positive COVID-19 Tests Among People Incarcerated at the Clayton County Jail as of June 11, 2020
40

35

30

25

20

15

Positive Tests

10

Linear Trend Line

5

0

Source: June 3, 2020 Open Records Request to Clayton Health District.

109. Medical experts have made clear that the need for action is urgent and that the window of opportunity is narrowing to reduce the spread of outbreaks in jails. Given the Defendants’ failure to take reasonable steps to respond to the threat of the virus, detainees and staff at the Clayton County Jail are at grave risk of death or serious illness in the absence of court-ordered relief. Each day the jail continues to operate as described in this complaint will increase the likelihood of illness and death for detainees, jail staff, and people in the community.
C. Defendants Have Failed to Respond Reasonably to the Known Risk of a COVID-19 Outbreak in the Clayton County Jail.
110. Each Defendant is actually aware of the risk posed by COVID-19 and the dangers of large outbreaks in detention facilities. Each Defendant is actually aware of the conditions in the Clayton County Jail and the risks posed by those

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conditions in light of COVID-19, through their personal observations of the jail’s housing units and operations, communications with staff members and detainees, and reviews of detainee grievances and other records.
111. Defendants are actually aware of the risks posed by COVID-19, through their personal review of coronavirus-related documents published by entities such as the CDC and the National Institute of Corrections.
112. Numerous detainees submitted written grievances related to the Defendants’ failure to mitigate the risk posed by COVID-19. The Defendants are aware of detainees’ grievances including but not limited to the following.
a. On May 14, J.P.77 stated that he was concerned about not having a face mask and asked jailers “we have one towel that we dry off with and we are to wear that on our face?”
b. On May 15, C.C. wrote that he had congestive heart failure, was confined to an overcrowded cell, and had not been issued a protective mask.
c. On May 16, B.T. stated that he lacked “proper cleaning chemicals for [his] cell,” noted “no proper social distancing,”
77 Plaintiffs are using initials instead of full names to protect the privacy of third parties.
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and voiced concern that detainees had to “make [their] own protective mask.” d. On May 16, T.J. stated that there were no cleaning or disinfectant supplies being distributed and stated that there was improper “screening of bunkmates after one is found with [COVID-19] symptoms.” e. On May 17, D.H. stated “I have . . . been appointted [sic] inmate worker, but have not receive[d] a face mask[.] (I wear a dirty torn towel on my face).” f. On May 18, Q.W. stated that no cleaning supplies were being distributed. He added that “sick inmates don[’]t [receive] medical attention in [a] timely manner.” g. On May 19, Q.T. stated that he was tested for COVID-19 on May 4 and sent back to his dorm before receiving the test results. He learned that he had tested positive on May 19. h. On May 22, C.S. wrote that “We have not been given an[y] info. related to COVID 19” and noted that he had no access to masks or cleaning supplies. He added: “RESOLUTION, I REQUEST TO ADDRESS THIS MATTER A.S.A.P.
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BECAUSE MY LI[F]E AND OTHER INMATES LIVES AR[E] IN JEOPARDY.” i. On May 29, M.M. stated “I have been from top to bott[o]m of jail and have yet to receive a mask, the living conditions here are terrible, it is very unsanitary[.] [T]here are never no chemicals no bleach, I sleep on floor T [sic] toilet and I wake up daily with my mat floating in fec[e]s water.” j. On May 29, J.B. wrote that he tested positive for COVID-19 and did not receive necessary medical attention. k. On May 31, A.H. wrote that he was “scared for [his] life” because “conditions in this jail” are “really dangerous.” l. On May 31, A.B. noted that many “inmate workers” had tested positive for COVID-19, that he had no face mask, and that “the staff here is not taking this pandemic serious[ly].” m. On June 1, D.J. wrote “this grievance is being submitted due to C.C.D.C. failure to follow Covid-19 guidelines and regulation[s,] which are placing myself and others lives in jeopardy.”
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n. On June 1, Q.T. wrote that he worked in an area where people infected with COVID-19 were quarantined. He stated “[f]or a full week Ive asked an officer on every rank from co to lt for [a] protective mask but nobody has helped me out.”
o. On June 1, J.G. expressed concern about “the Covid-19 outbreak amongst the inmates in dorm D-7” and asked for supplies to clean the bunks of infected people.
p. On June 3, K.R. wrote that the jail’s “failure to follow Covid-19 guidelines” placed his life in jeopardy.
q. On June 4, J.I. stated that “[n]othing has changed in spite of Covid 19,” “[o]ur cells are seldom cleaned,” and that phones and kiosks were seldom sanitized.
113. In response to a public records request, the Sheriff’s Office provided undersigned counsel with 28 grievances related to COVID-19, dated between April 1 and June 5. For 21 of those 28 grievances, no one from jail staff appears to have responded to the detainee.
114. There are certain concrete, feasible actions that Defendants could take to prevent the rapid spread of the coronavirus. A jail must take reasonable steps necessary to promote social distancing, ensure sanitation of shared surfaces, and
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achieve early detection and isolation of suspected COVID-19 cases to limit the number of people exposed to the virus. Many of these measures are recommended by the CDC and were implemented months ago in other jails across the state.
115. Defendants, however, have not taken steps reasonably aimed to mitigate the risk of a COVID-19 outbreak in the Clayton County Jail. Three months into a global pandemic that has killed over 120,000 Americans and two months into a known outbreak within its facility, the jail continues to be run in all material respects exactly how it was run six months ago.
116. In particular, Defendants have failed to respond reasonably in at least five ways. First, Defendants have failed to take reasonable steps to ensure effective social distancing. Second, Defendants have failed to provide minimally adequate sanitation and personal hygiene. Third, Defendants have failed to provide adequate protective equipment. Fourth, Defendants have failed to adequately identify and respond to COVID-19 cases. Fifth, Defendants have failed to provide information to detainees about avoiding infection.
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1. Defendants continue to house three or four detainees in twoperson cells and have made no effective effort at social distancing.
117. It is widely understood that social distancing “is a cornerstone of reducing transmission of respiratory diseases such as COVID-19.”78
118. Defendants have failed to make reasonable efforts to achieve social distancing at the Clayton County Jail.
119. First, Defendants have failed to make reasonable efforts to reduce the jail population. As of June 4, 2020—nearly three months after the Governor of Georgia declared a public health emergency—the Clayton County Jail was operating at 96 percent capacity, with 1,847 detainees confined in the jail designed for 1,920 according to the Georgia Department of Community Affairs. By a substantial margin, that is the highest population recorded by the Department for the month of June since 2015. It is over thirteen percent higher—and includes more than 220 more detainees—than the average population recorded for the month of June across the previous five years.
78 U.S. Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities 4 (Mar. 23, 2020).
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100.0% 95.0% 90.0% 85.0% 80.0% 75.0%

Clayton County Jail Capacity in June: 2015 to 2020
Actual Percentage of Capacity
Average Percentage of Capacity (20152019)
Source: Ga. Dep't of Community Supervision Jail Reports, June 2015 to June 2020

120. The Clayton County Jail’s population density is not an unavoidable consequence of the pandemic or outside of Defendant Hill’s ability to ameliorate. Other jails in Georgia have responded to the pandemic by substantially reducing their populations so that they operate well below normal levels and provide the space and services needed to effectively prevent outbreaks of COVID-19.
121. Between March 5 and May 7, 2020, the total population-to-capacity ratio for all Georgia jails fell from 77 percent to 57 percent statewide. Thus, many jurisdictions responded to the pandemic by ensuring that their jails were operating well below capacity to facilitate social distancing. By contrast, the Clayton County Jail is operating well above the number of people for which it can implement effective social distancing.

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122. Defendant Hill has authority to release certain detainees from the jail in light of the serious risk of harm posed by COVID-19. For example, Georgia law allows sheriffs to award credit for good behavior to certain detainees serving sentences for misdemeanors or felony probation violations. See, e.g., O.C.G.A. § 42-4-7(b). Sheriffs also have authority to release detainees to home confinement under certain circumstances. See, e.g., O.C.G.A. § 42-1-8.
123. As a result of a pre-pandemic policy decision, Defendant Hill does not consider early release for most of the detainees eligible under state law for early release. In January 2014, Defendant Hill posted a notice on social media that his office was “removing ‘good time’ [credits] to keep criminals off the street longer.”79 He instead decided to limit opportunities for early release to the relatively small number of detainees assigned to work details or, in the alternative, “rare discretional circumstances.”80
124. Defendant Hill continues to adhere to his policy of refusing to consider early release for most of the detainees otherwise eligible. On March 16, 2020, Valerie L. Fuller, a communications administrator for Clayton County, sent
79See Clayton County Sheriff’s Office, Facebook (Jan. 3, 2014), https://www. facebook.com/ClaytonCountySheriffGA/posts/effective-immediately-the-claytoncounty-sheriffs-office-will-no-longer-allow-in/639803502746696. 80 Id.
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an email to Defendant Hill regarding local law enforcement agency responses to COVID-19. She asked, “Are you all releasing anyone from the jails[?]” The next day, Defendant Hill responded, “We are not releasing anyone from jail unless they are being bonded out.”
125. Instead of attempting to reduce the jail’s population, Defendant Hill has taken steps to increase it. After the tragic shooting death of seven-year-old Gabriel Vasquez on April 11 in the Conley area of Clayton County, Defendant Hill stated “that all criminals in a 5 mile radius of the shooting would incur the wrath of the Sheriff’s Office until the shooter is found.”81 Two months later, the Sheriff’s Office had made over 500 arrests within the “5 mile radius” Defendant Hill chose to target.
126. During the course of the global pandemic, employees of the Clayton County Sheriff’s Office and other local law enforcement entities have continued to arrest and book people for minor offenses, even where arrest is not required by law. They have done so knowing that some such persons will have bond amounts set that they are unable to pay. Some people arrested for minor offenses are jailed for weeks or months only because they cannot afford to pay bail. To take only a
81 See Clayton Cty. Sheriff’s Office Advisory, May 6, 2020, https://local.nixle.com /alert/7980002.
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few examples, detainee T.S. has been jailed 27 days for jaywalking and disorderly conduct, with bail set at $2,400. Detainee J.P. has been jailed for 26 days for disorderly conduct, with bail set at $1,300. Detainee G.Y. has been jailed for 30 days for shoplifting, with bail set at $2,400. Detainee H.D. has been jailed for 89 days for criminal trespass, with bail set at $2,400. And detainee T.L. has been jailed for 176 days for public drunkenness, with bail set at $1,300.
127. In short, in the middle of a pandemic understood by jailers across Georgia to necessitate reducing jail populations below normal levels, Defendants are doing the opposite by intentionally detaining substantially more people than usual.
128. Due in part to Defendant Hill’s actions and failures to act, the jail’s population size is not being managed effectively during the outbreak. This poses especially great danger to people who are medically vulnerable or have disabilities—people for whom exposure to the coronavirus creates much higher risk of serious illness and death.
129. In addition to failing to release eligible detainees, Defendants have failed to take other reasonable steps to mitigate the risk of COVID-19 infections in light of the number of people in custody. Defendants consistently staff the jail with too few officers. Given the current jail population, officers are responsible for
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supervising far more detainees than they can effectively manage. Defendants’ understaffing of the jail has resulted in ongoing failures to ensure that high-traffic areas are sanitized, that detainees are informed about the risks of COVID-19 and prevention measures, that detainees avoid congregating in close proximity, that detainees who are sick are promptly removed from housing units and evaluated by medical staff, and that other basic mitigation steps are followed.
130. The jail’s only apparent effort at promoting social distancing is unreasonable: the jail reduced to 12 the number of people who can leave their cells during each rotation of “free time” in a pod’s day area. But that solution ignores CDC guidelines because Defendants permit those 12 people to congregate during their hour out-of-cell, including playing card games, watching television, and using telephones in close proximity to one another.
131. Indeed, the jail’s policies require that detainees congregate in close proximity every single day in order to obtain food and medicine. For instance, in most pods, detainees are required to leave their cells in groups of 24 or more and line up in close proximity in order to be issued their noon meal (which they then eat in their cells with up to three cellmates). Likewise, detainees with medical prescriptions are required to leave their cells as a group and line up in close proximity for “pill call” to receive their medications. When detainees go to sick
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call—the designated time for medical staff to examine and treat detainees—they walk to the medical unit as a group, often with other detainees from their housing unit of up to 288 people, but jail staff make no effort at enforcing social distancing. When detainees arrive at the medical unit, they are usually placed inside of a holding area with detainees from other housing units, where they wait to be called to see a nurse or medical provider. When detainees go to video court, they are crowded together in a small waiting area with no opportunity for physical distancing.
132. With all of these requirements for detainees to interact directly and indirectly with other detainees, including detainees from other housing units, limiting free time to 12 individuals at a time is plainly inadequate to mitigate the risk that an infected detainee will spread the virus throughout the jail.
2. Defendants have failed to provide basic sanitation and personal hygiene.
133. A second component of an effective COVID-19 response is to implement “intensified cleaning and disinfecting procedures” to promote “healthy hygiene practices.”82 However, Defendants have failed to take any reasonable action to improve sanitation and hygiene.
82 U.S. Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities
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134. Though there is some variation among the housing units as a result of individual detainees’ ingenuity in improvising cleaning supplies and individual officers’ willingness to provide limited supplies to detainees on request, people in multiple housing units go weeks and sometimes months at a time with no opportunities to disinfect toilets, sinks, and other in-cell fixtures.
135. The only “cleaning” done for cells on a regular basis is to sweep the floors and sometimes provide a mop that is so filthy, it is more likely to spread than prevent disease.
136. Regardless of housing unit, the ability of detainees to clean and sanitize their living areas is so limited as to be meaningless. For instance, showers, common area tables, telephones, kiosks, door handles, and other objects are cleaned by the “inmate workers” at irregular intervals, sometimes as infrequently as every one or two months.
137. Defendants have not implemented an adequate or effective plan for maintaining sanitation in the jail’s overpopulated housing units during the pandemic.
9-10 (Mar. 23, 2020) (“Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas.”).
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138. The “inmate workers” are responsible for cleaning the common areas, including day rooms and showers. Jail staff permit them to make their own rules about what items to clean, how often to clean them, and the manner in which to clean them.
139. Each detainee is responsible for cleaning her or his cell, but, as discussed above, the only materials provided regularly are a broom and a dirty mop. On rare occasions, detainees may convince a sympathetic detention officer or “inmate worker” to provide them with sanitizing chemicals, but Defendants do not have any system in place for ensuring that minimally adequate cleaning supplies are offered to detainees.
140. Personal hygiene products are similarly restricted. At best, detainees receive approximately four ounces of liquid soap, toilet paper, and toothpaste once per week. Frequently, toothpaste, toilet paper, or sanitary napkins are unavailable. Detainees have to make the limited soap they are issued last for a week of showers and handwashing. Lacking cleaning products, some detainees attempt to wipe down their cells with their jail-issued soap, further limiting their ability to maintain good hygiene.
141. Defendants have not taken steps to ensure that detainees have clean clothing and bedding. Each detainee has one jumpsuit that she or he must wear for
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at least one week, and often a month or more, before being issued a clean replacement. Towels and washcloths are washed infrequently, sometimes not for months. Linens often go missing for lengthy periods. For example, as of late May, detainees in multiple housing units had been without sheets for over two weeks.
3. Defendants have failed to issue reasonably adequate protective equipment.
142. In settings where effective social distancing is not possible, face coverings reduce the risk that those who have COVID-19 will spread the disease to others by limiting emissions of respiratory droplets. For that reason, the CDC “recommends that everyone wear cloth face coverings when leaving their homes, regardless of whether they have fever or symptoms of COVID-19.”83
143. To work effectively, face coverings must fully cover the nose and mouth, fit snugly against the sides of the wearer’s face so that there are no gaps, and be secured in a manner that prevents slipping.84
144. Defendants have failed to ensure that detainees have adequate face coverings or other protective equipment.
83 U.S. Ctrs. for Disease Control & Prevention, Important Information About Your Cloth Face Coverings, https://bit.ly/3gAe0gv. 84 Id.
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145. For the first two and one-half months of the pandemic, few detainees at the Clayton County Jail had jail-issued masks. Instead of providing masks, jailers verbally instructed detainees to cover their faces with towels or other cloth items such as socks, underwear, a t-shirt, or a torn-off section of bedsheet.
146. To give one example, in May 2020, Plaintiff Randolph Mitchell, age 72, asked an officer for a mask. The officer told Mr. Mitchell that he could not have a mask because he was not a trustee. Afraid of getting sick, Mr. Mitchell “purchased” an improvised mask made out of underwear from another detainee in exchange for two packets of soup. Similarly, in May 2020, former detainee M.B., a 68-year-old woman who recently underwent chemotherapy for breast cancer, asked officers and nurses for a face mask. No mask was provided. M.B. instead used a torn piece of jail-issued underwear to try to protect herself from the virus. Detainees like Mr. Mitchell and M.B. are given no guidance about how to make, use, and wash an improvised face covering.
147. Starting only in early June—two and one-half months into the pandemic, and in anticipation of this litigation—the jail began to provide masks to a limited number of additional people. The masks are made of a thin paper-like material. They are not consistently replaced or cleaned when they break or
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become soiled. There are still numerous detainees who have never been provided a mask by jail staff.
148. Defendants’ approach to providing face coverings is objectively unreasonable and inadequate. Using a face covering is a safe practice only insofar as the covering is not contaminated with a virus, bacteria, or other agent that will make the wearer sick. The CDC thus recommends that face coverings be washed “after each use,” be “completely dry” before use, and be handled carefully when touching it to avoid cross-contamination from a person’s hands to the mask.85
149. Suggesting that detainees cover their faces with the same towels they use over the course of a week for showering is objectively unreasonable because a towel that a person uses throughout the week for showering will not be clean and dry when the person uses it. And expecting detainees to craft a functional mask out of towels and undergarments, with no instruction regarding how a mask should fit or how it should be used and washed, is objectively unreasonable because a dirty or poorly fitting mask cannot effectively serve its purpose.
85 U.S. Ctrs. for Disease Control & Prevention, How to Safely Wear and Take Off a Cloth Face Covering, https://bit.ly/2BgJPe6.
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4. Defendants have failed to implement a process for identifying medically vulnerable and disabled people and taking affirmative steps for their protection.
150. As discussed above, a number of conditions, a subset of which are also “disabilities” pursuant to the Americans with Disabilities Act and the Rehabilitation Act, increase the risk of serious illness or death if a person is exposed to COVID-19. One high-risk group consists of people aged 55 or older. In addition, people diagnosed with asthma, diabetes, hemoglobin disorders, disorders compromising the immune system, kidney disease requiring dialysis, liver disease, lung disease, serious heart conditions, or who are pregnant all face a substantially higher risk of serious illness or death from COVID-19.
151. A large number of people in the Clayton County Jail have disabilities that increase their risk of serious illness or death if they are exposed to COVID-19. Although the exact number of these individuals is presently unknown, it likely is high, as approximately 40 percent of all jail detainees nationwide have chronic medical conditions, many of which constitute “disabilities” under the Americans with Disabilities Act and the Rehabilitation Act. Several of the medical conditions that make detainees medically vulnerable to COVID-19—such as asthma and diabetes—are common among jail detainees generally.
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152. Defendants are aware that a large number of Clayton County Jail detainees have medical conditions or disabilities that make them uniquely vulnerable to serious illness or death should they become infected. However, Defendants have taken no meaningful action to address the risk of COVID-19 infections among medically vulnerable detainees. Defendants do not attempt to identify the medically vulnerable, and they do not provide sufficient protections for these individuals. Instead, Defendants continue to house medically vulnerable detainees, including people with disabilities, in the same conditions as all other detainees, usually in unsanitary three-person cells with no meaningful effort at social distancing or other disease-prevention measures.
153. Because COVID-19 poses an increased threat of severe illness and death to medically vulnerable people, and circumstances at the Clayton County Jail make further spread of the disease highly likely, no set of conditions can adequately protect members of this class. Public health experts recommend rapidly releasing people most vulnerable to COVID-19 from custody. Release not only protects the most vulnerable people from being infected with the virus, but also eases crowding, thereby allowing for greater risk mitigation for people held or working in a jail, and the broader community. Release of the most vulnerable people from custody also reduces the burden on the region’s health care
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infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time.
154. As of June 8, 2020, the Clayton County Jail—based on testing fewer than 150 detainees—had 32 confirmed cases of detainees with COVID-19, more than 20% of those tested. Yet the jail population was at 96 percent of capacity on June 4, 2020, with most cells housing three detainees.
155. Immediate release of medically vulnerable Plaintiffs and class members is a necessary public health intervention. Release is needed both to prevent irreparable harm to at-risk individuals and to reduce the jail’s population to a level sufficient to ensure effective physical distancing, thereby reducing the risk of transmission for all class members and the wider public.
156. Until such time as they are released, Plaintiffs and other medically vulnerable detainees must be provided with enhanced protections to mitigate their risk of contracting COVID-19. Despite clear guidance from public health authorities and the CDC that these prisoners are at a significant risk, Defendant Hill and other defendants are not taking any of a number of possible steps to even attempt to protect this vulnerable population, such as:
• Prohibiting housing medically vulnerable people in open dormitory housing units;
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• Ensuring medically vulnerable people are housed in single cells; and
• Implementing long-term staff assignment by test-confirmed negative staff to prevent staff-prisoner transmission.
5. Defendants have failed to implement a reasonable process for identifying, testing, and isolating COVID-19 infections.
157. The Georgia Department of Public Health emphasizes that “[a]ll correctional and detention facility personnel should be preparing for the possibility of a COVID-19 outbreak within their facility,” and “[a]ll employees should be on high alert for potential COVID-19 cases within their population.”86 “Facilities should take steps to isolate symptomatic inmates/detainees IMMEDIATELY.”87 Detainees who display symptoms of infection must be placed in medical isolation, and those who have been in close contact with an infected patient must be placed in quarantine.88
158. The CDC recommends that all individuals in quarantine be “monitored for COVID-19 symptoms twice per day, including temperature
86 Ga. Dep’t of Public Health, Interim Guidance for Management of COVID-19 in Correctional and Detention Facilities in Georgia 1 (Apr. 15, 2020), https://bit.ly/3bvwECh. 87 Id. 88 Id. at 1-2.
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checks.”89 The CDC further recommends “daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms.”90 Defendants do not have any process for proactively identifying COVID-19 infection among detainees. Although jailers have quarantined certain pods where detainees have exhibited COVID-19 symptoms (keeping both people who tested positive and people who tested negative in the same housing area and, in some cases, in the same cell), there is no proactive effort to check detainees’ temperatures in units where COVID-19 cases are suspected by jailers.
159. Reporting COVID-19-like symptoms and receiving medical care for those symptoms requires detainees to file a request for medical care electronically using a kiosk system; yet, Defendants often prevent that from occurring. For example, in late May, M.B., a woman in Housing Unit 3, was experiencing symptoms consistent with COVID-19 and wanted to see medical staff, but she could not submit a sick call request because jailers restricted her kiosk access as punishment for a disciplinary infraction.
89 U.S. Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities 21 (Mar. 23, 2020). 90 Id. at 22.
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160. Many detainees lack access to kiosks because their housing units do not have them, because they are restricted to their cells, or because they have been denied use of a kiosk as punishment.
161. When those detainees report COVID-19 symptoms and other medical problems to officers, the officers frequently ignore them.
162. When detainees are able to use the kiosk to report COVID-19 symptoms, the medical and security staff often take three or four days to respond. In the meantime, detainees remain in their housing units, exposing others in those units to a risk of infection.
163. After a detainee exhibits symptoms of the virus, Defendants have no procedure for determining which detainees have been in close contact with the sick detainee and then testing them.
164. In addition, there is no procedure to ensure that the cell and bed that the sick detainee occupied will be sanitized before a new detainee is assigned to that cell and bed.
165. For example, in late April, multiple people in one of the open dormitories became seriously ill, with symptoms including coughing, fever, and vomiting. The sick detainees remained in the open dormitory for over a week being moved to the infirmary. Apart from spraying the sick detainees’ bedding
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with an unidentified cleaning product, staff did nothing to sanitize the dormitory, and instead assigned other detainees to occupy those beds. Several additional detainees in that dormitory have since experienced symptoms consistent with COVID-19.
166. In mid-May, R.S., a man in Housing Unit 7, experienced symptoms consistent with COVID-19, including a high fever, body aches, loss of appetite, and loss of his senses of taste and smell. When the man complained to officers that he had these symptoms and needed medical attention, the response was that there was nothing officers could do and that the man should put in a medical request using the kiosk. The man’s cellmate submitted a medical request on his behalf. For three days, the man continued to seek help from officers, but he was not taken to the medical unit. Three days after submitting a medical request and not receiving a response, the man, with the assistance of his cellmate, was able to get a nurse’s attention during pill call. The nurse sent the man back to his cell until late in the evening, when he was taken to the medical unit. Jail staff did not provide the man’s cellmate with instructions or equipment to sanitize his cell. The cellmate resorted to using personal soap to clean the cell. The cellmate was not assessed for COVID-19 symptoms. Soon thereafter, another prisoner was assigned to the bed that R.S. had vacated.
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167. Similarly, in late May, a detainee in Housing Unit 8 complained of a fever, shortness of breath, and back pain. The detainee and his cellmates informed officers, but the officers did not respond. It took two days for the man to be seen by medical staff, after which he was removed from Housing Unit 8. Staff made no effort to clean the sick man’s cell or assess whether his former roommates had symptoms of COVID-19. Another prisoner was soon after assigned to the sick man’s bed.
168. Additionally, Defendants have failed to create and implement a system to adequately screen newly arrived detainees for COVID-19 and to quarantine each new arrival for a sufficient amount of time prior to placing that person into the general population.
169. Defendants have also failed to create and implement a system to adequately track the prior contacts of persons who exhibit symptoms of COVID-19 and to then remove those contacts from the general population.
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6. Defendants have failed to educate detainees about COVID19.
170. Another cornerstone of preventing and mitigating COVID-19 infections in jails is to inform all detainees about the “symptoms of COVID-19,” “hand hygiene,” and the need to “report symptoms to staff.”91
171. Defendants have provided no information to detainees about COVID19.
172. Around the same time that the Governor declared a statewide public health emergency, Defendants stopped allowing detainees to watch television news programs.
173. As a result of Defendants’ unreasonable failure to provide information to detainees, many detainees do not know the symptoms of COVID-19 or how to prevent infection.
D. Defendants Are Discriminating Against Detainees with Disabilities by Failing to Provide Reasonable Accommodations to Reduce Their Risk of Serious Illness or Death.
174. As defined below, the members of the Disability Subclasses have “disabilities” as defined under the Americans with Disabilities Act and the
91 U.S. Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities 6 (Mar. 23, 2020).
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Rehabilitation Act that make them susceptible to serious illness or death if they contract COVID-19, including people with asthma, diabetes, hemoglobin disorders, disorders compromising the immune system, kidney disease requiring dialysis, liver disease, lung disease, and serious heart conditions.
175. All detainees in the Clayton County Jail are entitled to participate in their criminal court proceedings—if they are being detained prior to trial—and to serve the sentences imposed—if they have been convicted of a crime—in reasonably safe conditions. To that end, the jail is required to provide adequate medical care, food, and services to keep people alive and healthy until their cases are resolved and their sentences are completed.
176. The COVID-19 pandemic prevents members of the Disability Subclasses from resolving their court cases and completing their sentences. Those who become infected with COVID-19 may experience long-term debilitating symptoms that prevent them from attending court appearances, and those who die from COVID-19 will never reach a resolution of their court cases or, for those serving sentences, complete the sentence imposed.
177. The conditions at the jail present a heightened risk to the Disability Subclasses and the Defendants are discriminating against the Disability Subclasses by not making reasonable accommodations.
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178. Defendants could provide reasonable modifications to their programs, services, and activities to ensure that the members of the Disability Subclasses are adequately protected from COVID-19 infections. The modifications could include releasing individuals who qualify for release under state law, not requiring them to be held in multi-person cells, providing more frequent and thorough cleaning of their living areas, issuing them adequate protective equipment, and similar measures. However, Defendants have failed to make accommodations for members of the Disability Subclasses. Defendants have accordingly discriminated against members of the Disability Subclass on account of their disabilities.
CLASS ACTION ALLEGATIONS 179. Plaintiffs bring this action under Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves and six classes of similarly situated prisoners. 180. Plaintiffs make the following class action allegations concerning the classes and subclasses: A. Principal Pretrial Class 181. Plaintiffs seek to certify a Principal Pretrial Class defined as follows: “All persons who are now or will in the future be confined in the Clayton County Jail who are not also being confined under a sentence of imprisonment.” The
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Principal Pretrial Class will be represented by Plaintiffs Jones and Watkins, both of whom are held in the Clayton County Jail awaiting trial.
182. Plaintiffs meet the requirements of Rule 23(a) for the following reasons:
(a) The class is so numerous that joinder of all members of the class is impracticable. Plaintiffs expect to show that the class consists of over half of the 1,900 people presently jailed by Defendants, and an unknown number of people who will be jailed by Defendants in the future pending trial or for other reasons not involving the service of a sentence of imprisonment. As of May 7, 2020, 51 percent of the Clayton County Jail’s detainees were being held pending trial. Further, the duration of the COVID-19 pandemic is unknown, meaning that there will be a steady stream of future class members.
(b) There are questions of law and fact common to the class. Common questions of fact include whether the class members’ living conditions increase their risk of COVID19 infections. Common questions of law include whether
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Defendants’ failures to ensure adequate social distancing, sanitation, and personal hygiene present a substantial risk of serious harm; whether Defendants have responded reasonably to the risk of harm created by conditions at the Clayton County Jail; and whether Defendants have violated the class members’ rights under the Fourteenth Amendment Due Process Clause. (c) The policies and practices challenged in this action apply with equal force to Plaintiffs Jones and Watkins and all members of the class so that Plaintiffs Jones and Watkins’ claims are typical of those of the class. Plaintiffs Jones and Watkins are subject to the same challenged policies and practices as the class members and face the same risk of harm as the class members. (d) Plaintiffs and their counsel will adequately protect the interests of the class. Plaintiffs Jones and Watkins, the representatives for the Principal Pretrial Class, possess no interests adverse to those of other class members. Plaintiffs are represented by attorneys with the American
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Civil Liberties Union and the Southern Center for Human Rights, both of which focus on protecting the rights of people in the criminal legal system. The attorneys have experience in prison litigation and class action litigation and have devoted substantial resources and time to investigating this case, including multiple telephone interviews with people in the jail and substantial document collection and review. 183. Plaintiffs meet the requirements of Rule 23(b)(1) because prosecuting separate actions by individual class members would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the Defendants. In addition, prosecuting separate actions by individual class members would create a risk of adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. 184. Plaintiffs meet the requirements of Rule 23(b)(2) in that Defendants have acted or failed to act on grounds that apply generally to the class, so that final
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injunctive or declaratory relief is appropriate respecting the class as a whole. In particular, Plaintiffs Jones and Watkins seek to represent the class in challenging Defendants’ failures to provide safe conditions of confinement to people confined in the Clayton County Jail who are not under sentences of imprisonment. Any prospective relief granted to Plaintiffs Jones and Watkins with respect to those matters will necessarily benefit each member of the class.
B. Principal Post-Adjudication Class 185. Plaintiffs seek to certify a Principal Post-Adjudication Class defined as follows: “All persons who are now or will in the future be confined in the Clayton County Jail under sentence of imprisonment.” The Principal PostAdjudication Class will be represented by Plaintiffs Mitchell and Singleton, who are held in the Clayton County Jail under a sentence of imprisonment. 186. Plaintiffs meet the requirements of Rule 23(a) for the following reasons:
(a) The class is so numerous that joinder of all members of the class is impracticable. Plaintiffs expect to show that the class consists of over one-third of the approximately 1,900 people presently jailed by Defendants, and an unknown number of people who will be jailed by Defendants in the
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future under sentences of imprisonment. As of May 7, 2020, 40 percent of the Clayton County Jail’s detainees had been sentenced to imprisonment in state custody (6 percent) or county custody (34 percent). Further, the duration of the COVID-19 pandemic is unknown, meaning that there will be a steady stream of future class members. (b) There are questions of law and fact common to the class. Common questions of fact include whether the class members’ living conditions increase their risk of COVID19 infections. Common questions of law include whether Defendants’ failures to ensure adequate social distancing, sanitation, and personal hygiene present a substantial risk of serious harm; and whether Defendants have responded reasonably to the risk of harm created by conditions at the Clayton County Jail; and whether Defendants have violated the class members’ rights under the Eighth and Fourteenth Amendments.
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(c) The policies and practices challenged in this action apply with equal force to Plaintiff Mitchell, Plaintiff Singleton, and all members of the class so that Plaintiffs Mitchell’s and Singleton’s claims are typical of those of the class. Plaintiffs Mitchell and Singleton are subject to the same challenged policies and practices as the class members and face the same risk of harm as the class members.
(d) Plaintiffs and their counsel will adequately protect the interests of the class. Plaintiffs Mitchell and Singleton possess no interests adverse to those of other class members. Plaintiffs are represented by attorneys with the American Civil Liberties Union and the Southern Center for Human Rights, both of which focus on protecting the rights of people in the criminal legal system. The attorneys have experience in prison litigation and class action litigation and have devoted substantial resources and time to investigating this case, including multiple telephone interviews with people in the jail and substantial document collection and review.
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187. Plaintiffs meet the requirements of Rule 23(b)(1) because prosecuting separate actions by individual class members would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the Defendants. In addition, prosecuting separate actions by individual class members would create a risk of adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.
188. Plaintiffs meet the requirements of Rule 23(b)(2) in that Defendants have acted or failed to act on grounds that apply generally to the class, so that final injunctive or declaratory relief is appropriate respecting the class as a whole. In particular, Plaintiffs seek to represent the class in challenging Defendants’ failures to provide safe conditions of confinement to people confined in the Clayton County Jail under a sentence of imprisonment. Any prospective relief granted to Plaintiffs Mitchell and Singleton with respect to those matters will necessarily benefit each member of the class.
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C. Medically Vulnerable Pretrial Subclass
189. Plaintiffs seek to certify a subclass defined as follows: “All
individuals in the Clayton County Jail, who are not under a sentence of
imprisonment, whose age or medical conditions make them susceptible to serious
illness or death if they contract COVID-19, specifically, people aged 55 or older,
or people who have been diagnosed with, or are receiving treatment for, the
following conditions:
a. asthma; b. cerebrovascular disease; c. chronic kidney disease; d. COPD (chronic obstructive pulmonary disease); e. cystic fibrosis; f. diabetes mellitus (types 1 and 2); g. Serious heart conditions (such as heart failure, coronary artery
disease, or cardiomyopathies) h. hypertension; i. immunocompromised state (from solid organ transplant, blood or
bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines); j. liver disease; k. neurologic conditions (such as dementia); l. obesity (body mass index [BMI] of 30 or higher); m. pregnancy; n. pulmonary fibrosis; o. sickle cell disease; p. thalassemia.”92
92 According to the CDC, people with the following conditions are at increased risk of severe illness from COVID-19: chronic kidney disease, COPD, immunocompromised state (from solid organ transplant), obesity, serious heart conditions, sickle cell disease, and type 2 diabetes mellitus. People with the other
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190. The Medically Vulnerable Pretrial Class will be represented by Plaintiffs Jones and Watkins, both of whom are held in the Clayton County Jail awaiting trial.
191. Plaintiffs meet the requirements of Rule 23(a) for the following reasons:
(a) The class meets the numerosity requirement because joinder of all members of the class is impracticable. Plaintiffs expect to show that the class consists of over 100 people currently confined in the jail and an unknown number of people who will be jailed in the future. In April 2020, the Clayton County Jail held a total of 739 chronic care patients, and Plaintiffs expect to show that a significant number of those individuals were not under a sentence of imprisonment and had conditions making them medically vulnerable to COVID-19. The class is ascertainable because the members’ medical conditions
conditions listed above might be at increased risk of severe illness from COVID-19 based on what is known at this time. See CDC, Coronavirus Disease 2019, Who is at Increased Risk for Severe Illness?, https://bit.ly/2NKP34T.
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can be determined by reference to documents in the possession of Defendants. (b) There are questions of law and fact common to the class. Common questions of fact include whether the class members’ living conditions and preexisting medical conditions increase their risk of COVID-19 infections and of serious illness or death if they become infected. Common questions of law include whether Defendants’ failures to ensure adequate social distancing, sanitation, and personal hygiene present a substantial risk of serious harm; whether Defendants have responded reasonably to the risk of harm created by conditions at the Clayton County Jail; and whether Defendants have violated the class members’ rights under the Fourteenth Amendment Due Process Clause. (c) The policies challenged in this action apply with equal force to Plaintiff Jones, Plaintiff Watkins, and all members of the class so that Plaintiffs Jones’s and Watkins’s claims are typical of those of the class. Plaintiffs Jones and
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Watkins are subject to the same challenged policies and practices as the class members and face the same risk of harm as the class members. (d) Plaintiffs and their counsel will adequately protect the interests of the class. Plaintiffs Jones and Watkins possess no interests adverse to those of other class members. Plaintiffs Jones and Watkins are represented by attorneys with the American Civil Liberties Union and the Southern Center for Human Rights, both of which focus on protecting the rights of people in the criminal legal system. The attorneys have experience in prison litigation and class action litigation and have devoted substantial resources and time to investigating this case, including multiple visits with people in the jail and substantial document collection and review. 192. Plaintiffs meet the requirements of Rule 23(b)(1) because prosecuting separate actions by individual class members would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the Defendants. In addition,
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prosecuting separate actions by individual class members would create a risk of adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.
193. Plaintiffs meet the requirements of Rule 23(b)(2) in that Defendants have acted or failed to act on grounds that apply generally to the class, so that final injunctive or declaratory relief is appropriate respecting the class as a whole. In particular, Plaintiffs Jones and Watkins seek to represent the class in challenging Defendants’ failures to provide safe conditions of confinement to medically vulnerable people confined in the Clayton County Jail who have not been sentenced to incarceration. Any prospective relief granted to Plaintiffs Jones and Watkins with respect to those matters will necessarily benefit each member of the class.
D. Medically Vulnerable Post-Adjudication Subclass 194. Plaintiffs seek to certify a subclass defined as follows: “All individuals in the Clayton County Jail, who are under a sentence of imprisonment, whose age or medical conditions make them susceptible to serious illness or death
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if they contract COVID-19, specifically, people aged 55 or older, or people who
have been diagnosed with, or are receiving treatment for the following conditions:
a. asthma; b. cerebrovascular disease; c. chronic kidney disease; d. COPD (chronic obstructive pulmonary disease); e. cystic fibrosis; f. diabetes mellitus (types 1 and 2); g. serious heart conditions (such as heart failure, coronary artery disease,
or cardiomyopathies) h. hypertension; i. immunocompromised state (from solid organ transplant, blood or
bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines); j. liver disease; k. neurologic conditions (such as dementia); l. obesity (body mass index [BMI] of 30 or higher); m. pregnancy; n. pulmonary fibrosis; o. sickle cell disease; p. thalassemia.”
195. The Medically Vulnerable Post-Adjudication Class will be
represented by Plaintiffs Mitchell and Singleton, who are held in the Clayton
County Jail under a sentence of imprisonment.
196. Plaintiffs meet the requirements of Rule 23(a) for the following
reasons:
(a) The class meets the numerosity requirement because
joinder of all members of the class is impracticable.
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Plaintiffs expect to show that the class consists of over 100 people currently confined in the jail and an unknown number of people who will be jailed in the future. In April 2020, the Clayton County Jail held a total of 739 chronic care patients, and Plaintiffs expect to show that a significant number of those individuals were in the jail under a sentence of imprisonment and had conditions making them medically vulnerable to COVID-19. The class is ascertainable because the members’ medical conditions can be determined by reference to documents in the possession of Defendants. (b) There are questions of law and fact common to the class. Common questions of fact include whether the class members’ living conditions and preexisting medical conditions increase their risk of COVID-19 infections and of serious illness or death if they become infected. Common questions of law include whether Defendants’ failures to ensure adequate social distancing, sanitation, and personal hygiene present a substantial risk of serious
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harm; and whether Defendants have responded reasonably to the risk of harm created by conditions at the Clayton County Jail; and whether Defendants have violated the class members’ rights under the Eighth and Fourteenth Amendments. (c) The policies and practices challenged in this action apply with equal force to Plaintiff Mitchell, Plaintiff Singleton, and all members of the class so that Plaintiffs Mitchell’s and Singleton’s claims are typical of those of the class. Plaintiffs Mitchell and Singleton are subject to the same challenged policies and practices as the class members and face the same risk of harm as the class members (d) Plaintiffs and their counsel will adequately protect the interests of the class. Plaintiffs Mitchell and Singleton possess no interests adverse to those of other class members. Plaintiffs are represented by attorneys with the American Civil Liberties Union and the Southern Center for Human Rights, both of which focus on protecting the rights of people in the criminal legal system. The
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attorneys have experience in prison litigation and class action litigation and have devoted substantial resources and time to investigating this case, including multiple visits with people in the jail and substantial document collection and review. 197. Plaintiffs meet the requirements of Rule 23(b)(1) because prosecuting separate actions by individual class members would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the Defendants. In addition, prosecuting separate actions by individual class members would create a risk of adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. 198. Plaintiffs meet the requirements of Rule 23(b)(2) in that Defendants have acted or failed to act on grounds that apply generally to the class, so that final injunctive or declaratory relief is appropriate respecting the class as a whole. In particular, Plaintiffs Mitchell and Singleton seek to represent the class in challenging Defendants’ failures to provide safe conditions of confinement to
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medically vulnerable people confined in the Clayton County Jail who have been sentenced to incarceration. Any prospective relief granted to Plaintiffs Mitchell and Singleton with respect to those matters will necessarily benefit each member of the class.
E. Disability Pretrial Subclass 199. Plaintiffs seek to certify a subclass defined as follows: “All individuals in the Clayton County Jail who have not been sentenced to imprisonment and whose medical conditions make them susceptible to serious illness or death if they contract COVID-19, specifically, people who have been diagnosed with, or are receiving treatment for, a medical condition which would qualify as a disability under the Americans with Disabilities Act or the Rehabilitation Act.” The subclass includes people with any of the conditions listed in paragraph 192, except those who are medically vulnerable solely because of age, pregnancy, or BMI. The Disability Pretrial Subclass will be represented by Plaintiffs Jones and Watkins, both of whom are held in the Clayton County Jail awaiting trial. 200. Plaintiffs meet the requirements of Rule 23(a) for the following reasons:
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(a) The class meets the numerosity requirement because joinder of all members of the class is impracticable. Plaintiffs expect to show that the class consists of over 100 people currently confined in the jail and an unknown number of people who will be jailed in the future. In April 2020, the Clayton County Jail held a total of 739 chronic care patients, and Plaintiffs expect to show that a significant number of those individuals were not under a sentence of imprisonment and had disabilities making them medically vulnerable to COVID-19. The class is ascertainable because the members’ medical conditions can be determined by reference to documents in the possession of Defendants.
(b) There are questions of law and fact common to the class, including whether Defendants have prevented the class members from benefiting from programs, services, and activities on account of their disabilities, and whether Defendants have failed to provide reasonable accommodations for the class members’ disabilities.
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(c) The policies challenged in this action apply with equal force to Plaintiffs Jones and Watkins and all members of the class so that Plaintiffs Jones’s and Watkins’s claims are typical of those of the class. Plaintiffs Jones and Watkins are subject to the same challenged policies and practices as the class members and face the same risk of harm as the class members.
(d) Plaintiffs and their counsel will adequately protect the interests of the class. Plaintiffs Jones and Watkins possess no interests adverse to those of other class members. Plaintiffs are represented by attorneys with the American Civil Liberties Union and the Southern Center for Human Rights, both of which focus on protecting the rights of people in the criminal legal system. The attorneys have experience in prison litigation and class action litigation and have devoted substantial resources and time to investigating this case, including multiple visits with people in the jail and substantial document collection and review.
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201. Plaintiffs meet the requirements of Rule 23(b)(1) because prosecuting separate actions by individual class members would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the Defendants. In addition, prosecuting separate actions by individual class members would create a risk of adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.
202. Plaintiffs meet the requirements of Rule 23(b)(2) in that Defendants have acted or failed to act on grounds that apply generally to the class, so that final injunctive or declaratory relief is appropriate respecting the class as a whole. In particular, Plaintiffs Jones and Watkins seek to represent the class in challenging Defendants’ failures to provide reasonable accommodations to disabled people confined in the Clayton County Jail who have not been sentenced to incarceration. Any prospective relief granted to Plaintiffs Jones and Watkins with respect to those matters will necessarily benefit each member of the class.
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F. Disability Post-Adjudication Subclass 203. Plaintiffs seek to certify a subclass defined as follows: “All individuals in the Clayton County Jail who have been sentenced to imprisonment and whose medical conditions make them susceptible to serious illness or death if they contract COVID-19, specifically, people who have been diagnosed with, or are receiving treatment for, a medical condition which would qualify as a disability under the Americans with Disabilities Act or the Rehabilitation Act.” The subclass includes people with any of the conditions listed in paragraph 192, except those who are medically vulnerable solely because of age, pregnancy, or BMI. The Disability Post-Adjudication Subclass will be represented by Plaintiffs Mitchell and Singleton, who are held in the Clayton County Jail under a sentence of imprisonment. 204. Plaintiffs meet the requirements of Rule 23(a) for the following reasons:
(a) The class meets the numerosity requirement because joinder of all members of the class is impracticable. Plaintiffs expect to show that the class consists of over 100 people currently confined in the jail and an unknown number of people who will be jailed in the future. In April
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2020, the Clayton County Jail held a total of 739 chronic care patients, and Plaintiffs expect to show that a significant number of those individuals were under a sentence of imprisonment and had disabilities making them medically vulnerable to COVID-19. The class is ascertainable because the members’ medical conditions can be determined by reference to documents in the possession of Defendants. (b) There are questions of law and fact common to the class, including whether Defendants have prevented the class members from benefiting from programs, services, and activities on account of their disabilities, and whether Defendants have failed to provide reasonable accommodations for the class members’ disabilities. (c) The policies challenged in this action apply with equal force to Plaintiff Mitchell, Plaintiff Singleton, and all members of the class so that Plaintiffs Mitchell’s and Singleton’s claims are typical of those of the class. Plaintiffs Mitchell and Singleton are subject to the same
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challenged policies and practices as the class members and face the same risk of harm as the class members. (d) Plaintiffs and their counsel will adequately protect the interests of the class. Plaintiffs Mitchell and Singleton possess no interests adverse to those of other class members. Plaintiffs are represented by attorneys with the American Civil Liberties Union and the Southern Center for Human Rights, both of which focus on protecting the rights of people in the criminal legal system. The attorneys have experience in prison litigation and class action litigation and have devoted substantial resources and time to investigating this case, including multiple visits with people in the jail and substantial document collection and review. 205. Plaintiffs meet the requirements of Rule 23(b)(1) because prosecuting separate actions by individual class members would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the Defendants. In addition, prosecuting separate actions by individual class members would create a risk of
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adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.
206. Plaintiffs meet the requirements of Rule 23(b)(2) in that Defendants have acted or failed to act on grounds that apply generally to the class, so that final injunctive or declaratory relief is appropriate respecting the class as a whole. In particular, Plaintiffs Mitchell and Singleton seek to represent the class in challenging Defendants’ failures to provide reasonable accommodations to disabled people confined in the Clayton County Jail who have not been sentenced to incarceration. Any prospective relief granted to Plaintiffs Mitchell and Singleton with respect to those matters will necessarily benefit each member of the class.
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CLAIMS FOR RELIEF COUNT I
Unconstitutional Punishment in Violation of the Fourteenth Amendment Due Process Clause 42 U.S.C. § 1983 / 28 U.S.C. § 2241
On Behalf of the Principal Pretrial Class, Medically Vulnerable Pretrial Subclass, and Disability Pretrial Subclass Against All Defendants
207. Plaintiffs hereby incorporate paragraphs 1 through 23 and 28 through 206 as if fully set out herein.
208. Under the Fourteenth Amendment, persons in pretrial custody cannot be punished as part of their detention. Punishment occurs if the Defendants’ conduct either is not rationally related to a legitimate, nonpunitive, government purpose or is excessive in relation to a legitimate, nonpunitive government purpose.
209. Defendants have subjected Plaintiffs to unlawful punishment through acts and omissions that are not reasonably related to a legitimate non-punitive government purpose or are excessive in relation to that purpose. No legitimate government purpose is served by unnecessarily subjecting pretrial detainees to an excessive risk of exposure to and contracting COVID-19. Nor is any legitimate government purpose served by failing to address these risks. Exposing pretrial
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detainees to an excessive risk of contracting COVID-19, and of serious illness and death for those who are medically vulnerable, is not rationally related to the purpose of pretrial confinement, which is to ensure the presence of a detainee at trial. Plaintiffs seek injunctive and declaratory relief against Defendant to prevent the continued violation of the rights of Plaintiffs and the classes they represent. Plaintiffs further seek a writ of habeas corpus under 28 U.S.C. §§ 2241 and 2243 directing Defendants to release or transfer the members of the Medically Vulnerable Pre-Trial Subclass and Disability Pretrial Subclasses from the Clayton County Jail facility, to remedy ongoing violations of the federal rights of these class members.
COUNT II Unconstitutional Conditions of Confinement in Violation
of the Eighth and Fourteenth Amendments 42 U.S.C. § 1983 / 28 U.S.C. § 2241 On Behalf of All Plaintiffs and Class Members Against All Defendants
210. Plaintiffs hereby incorporate paragraphs 1 through 23 and 28 through 206 as if fully set out herein.
211. The coronavirus pandemic presents a substantial risk of serious harm to detainees’ health, safety, and lives. Defendants’ failure to take adequate and reasonable steps to protect detainees from injury and death as described herein, and
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indeed their creation and implementation of policies that will increase the likelihood that the virus will spread in the jail, violates contemporary standards of decency.
212. Defendants have plenary authority to prescribe conditions of confinement in the Clayton County Jail and substantial authority to release certain categories of detainees to mitigate the spread of COVID-19.
213. Each Defendant is actually aware that the conditions in the jail present a substantial risk of serious harm to detainees, and each Defendant has exhibited deliberate indifference in the face of that risk by failing to take reasonable, necessary, and easily available steps to reduce the risk of harm, violating the Principal Pretrial Class’s Fourteenth Amendment Due Process Clause right to safe custodial conditions and the Principal Post-Adjudication Class’s Eighth and Fourteenth Amendment right against cruel and unusual punishments.
214. Plaintiffs seek declaratory and injunctive relief under 42 U.S.C. § 1983 on behalf of themselves and the Pretrial and Post-Adjudication Classes to prevent further violations of their rights by Defendants. Plaintiffs further seek a writ of habeas corpus under 28 U.S.C. §§ 2241 and 2243 directing Defendants to release or transfer the members of the Medically Vulnerable and Disability
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Subclasses from the Clayton County Jail facility, to remedy ongoing violations of the federal rights of these class members.
COUNT III Violations of the Americans with Disabilities Act
42 U.S.C. §§ 12101 et seq. / 28 U.S.C. § 2241 On Behalf of the Disability Pretrial Subclass
and Disability Post-Adjudication Subclass Against All Defendants 215. Plaintiffs hereby incorporate paragraphs 1 through 23 and 28 through 206 as if fully set out herein. 216. Congress enacted the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., to provide a clear and comprehensive mandate for the elimination of discrimination against people experiencing disabilities and to provide strong and consistent standards for identifying and addressing such discrimination. 42 U.S.C. § 12101(b)(1)–(2). 217. The ADA is based on Congress’s finding that “discrimination against individuals with disabilities” is “a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). 218. Title II of the ADA mandates that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or
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be subjected to discrimination by any such entity.” 42 U.S.C. § 12132; see also 28 C.F.R. § 35.130.
219. The ADA defines a “disability” as “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A).
220. Plaintiffs Jones, Mitchell, Singleton, and Watkins, and the members of the Disability Subclasses, are qualified individuals with disabilities, as that term is defined in the ADA, and are entitled to the protections of the ADA.
221. The ADA directed the Attorney General of the United States to promulgate regulations enforcing Title II of the ADA and provide guidance on their content. 42 U.S.C. § 12134. The regulations that the Attorney General promulgated require public entities to “make reasonable modifications” to their programs and activities “when the modifications are necessary to avoid discrimination.” 28 C.F.R. 35.130(b)(7).
222. The regulations also specify that it is unlawful for a public entity to: (a) afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded to others; or (b) provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same
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result, to gain the same benefit, or to reach the same level of achievement as that provided to others. See 28 C.F.R. 35.130(b)(1)(ii)–(iii).
223. Defendants deny important services, programs, and activities that would mitigate the risk of COVID-19 to Plaintiffs Jones, Mitchell, Singleton, and Watkins, and other members of the Disability Subclasses, solely by reason of their disabilities.
224. Defendants have not permitted reasonable accommodations for Plaintiffs Jones’s, Mitchell’s, Singleton’s, and Watkins’s disabilities and have discriminated against the members of the Disability Subclasses in the provision of programs and services.
COUNT IV Violations of the Rehabilitation Act 29 U.S.C. § 794(a) / 28 U.S.C. § 2241 On Behalf of the Disability Pretrial Subclass
and Disability Post-Adjudication Subclass Against All Defendants 225. Plaintiffs hereby incorporate paragraphs 1 through 23 and 28 through 206 as if fully set out herein. 226. Section 504 of the Rehabilitation Act provides: “No otherwise qualified individual with a disability in the United States . . . shall solely by reason of his or her disability, be excluded from the participation in, be denied the benefits
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of, or be subjected to discrimination under any program or activity receiving Federal Financial Assistance.” See 29 U.S.C. § 794(a).
227. The regulations implementing Section 504 of the Rehabilitation Act require that entities receiving federal financial assistance avoid unnecessary policies, practices, criteria, or methods of administration that have the effect of discriminating against persons with disabilities. 28 C.F.R. § 41.51(b)(3)(i).
228. Defendants receive “Federal financial assistance” within the meaning of 28 U.S.C. § 794(a).
229. Defendants deny important services, programs, and activities that would mitigate the risk of COVID-19 to Plaintiffs Jones, Mitchell, Singleton, and Watkins, and other members of the Disability Subclasses, solely by reason of their disabilities. Defendants receive federal funds in connection with those services, programs, and activities.
230. Defendants have not permitted reasonable accommodations for Plaintiffs Jones’s, Mitchell’s, Singleton’s, and Watkins’s disabilities and have discriminated against the members of the Disability Subclasses in the provision of programs and services.
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COUNT V Petition for a Writ of Habeas Corpus Under 28 U.S.C. §§ 2241 and 2243 for Confinement in Violation of the Eighth and Fourteenth Amendments, the Americans
with Disabilities Act, and the Rehabilitation Act On Behalf of the Medically Vulnerable and Disability Subclasses Against All Defendants
231. Plaintiffs hereby incorporate paragraphs 1 through 23 and 28 through 206 as if fully set out herein.
232. For the reasons discussed above, Defendants’ continued confinement of the members of the Medically Vulnerable and Disability Subclasses violates the Eighth and Fourteenth Amendments, the Americans with Disabilities Act, and the Rehabilitation Act.
233. Members of the Medically Vulnerable and Disability Subclasses are particularly susceptible to infection, injury, and death from COVID-19. As a result of their specific characteristics, there are no conditions of confinement that will adequately protect members of the Medically Vulnerable and Disability Subclasses from the risk of infection, serious injury, and death, even if Defendants could adequately reduce the risk of infection, injury, and death for individuals without medical vulnerabilities by improving certain conditions.
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234. Continuing to confine the Subclass members in the Clayton County Jail subjects them to a significantly higher risk of serious injury or death, relative to the general population, if they become infected with the coronavirus.
235. Defendants are therefore holding members of the Medically Vulnerable and Disability Subclasses in custody in violation of the Eighth Amendment’s right to be free from cruel and unusual punishments; the Due Process Clause of the Fourteenth Amendment; the Americans with Disabilities Act; and the Rehabilitation Act.
236. Plaintiffs seek a writ of habeas corpus under 28 U.S.C. §§ 2241 and 2243 directing Defendants to release or transfer the members of the Medically Vulnerable and Disability Subclasses from the Clayton County Jail facility, to remedy ongoing violations of the federal rights of these class members.
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REQUEST FOR RELIEF
For the foregoing reasons, Plaintiffs respectfully ask that this Court:
(1) Assume jurisdiction over this action;
(2) Certify this case as a class action under Rule 23 of the Federal Rules of Civil Procedure and appoint the undersigned as class counsel;
(3) Declare that Defendants are violating the federal rights of Plaintiffs and other class members;
(4) Enter preliminary and permanent injunctive relief requiring Defendants to, among other things:
(a) Release or transfer all Medically Vulnerable and Disability Subclass Members to home confinement or other safe location, through an expedited process to be ordered by the Court;
(b) Reasonably mitigate the conditions in the Clayton County Jail that facilitate the spread of COVID-19, including by implementing social distancing measures, providing personal protective equipment, and releasing certain detainees;
(c) Provide safe and sanitary conditions of confinement to Plaintiffs and other class members, with heightened protections for detainees who are susceptible to serious and/or fatal COVID-19 infections.
(5) Issue a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2243 directing the immediate release or transfer of members of the Medically Vulnerable and Disability Subclasses to home confinement or other safe location;
(6) Award Plaintiffs reasonable attorney’s fees, expenses, and costs of litigation under 42 U.S.C. § 1988, 42 U.S.C. § 12205, and other applicable law; and
106

(7) Award such other and further relief as this Court deems just and proper.
Respectfully submitted,

Kosha S. Tucker Ga. Bar No. 214335 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA P.O. Box 77208 Atlanta, GA 30357 (678) 981-5295 ktucker@acluga.org
Stephen L. Pevar* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 765 Asylum Avenue Hartford, Connecticut 06105 (860) 570-9830 spevar@aclu.org
David C. Fathi* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 Fifteenth Street, N.W., Seventh Floor Washington, DC 20005 (202) 548-6603 dfathi@aclu.org

/s/ Ryan Primerano Sarah Geraghty Ga. Bar No. 291393 Jeremy Cutting Ga. Bar No. 947729 Ryan Primerano Ga. Bar No. 404962 SOUTHERN CENTER FOR HUMAN RIGHTS 60 Walton Street, N.W. Atlanta, GA 30303 (404) 688-1202 sgeraghty@schr.org
Brandon Buskey* Robert W. Hunter* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004 (212) 284-7364 bbuskey@aclu.org

*Motion for admission pro hac vice forthcoming.

July 1, 2020

Counsel for Plaintiffs

107

VERIFICATION I affirm under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
/s/ Ryan Primerano
July 1, 2020

CERTIFICATE OF COMPLIANCE I certify that this document has been prepared in compliance with Local Rule 5.1C using 14-point Times New Roman font.
/s/ Ryan Primerano
July 1, 2020

 
 Case 1:20-cv-02791-ELR-CCB Document 7 Filed 07/02/20 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RHONDA JONES et al., Plaintiffs,
v. VICTOR HILL et al.,
Defendants.

CIVIL ACTION NO. 1:20-CV-2791-ELR

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Plaintiffs respectfully move the Court under Rule 23 of the Federal Rules of
Civil Procedure to certify six classes: one class of pretrial detainees, one class of
post-adjudication detainees, and four subclasses. As explained in the attached brief,
Plaintiffs meet the requirements for class certification under Rule 23(a), (b)(1), and
(b)(2) and therefore request that the Court grant this motion by appointing the
undersigned as class counsel and certifying the following classes and subclasses:
1. Principal Pretrial Class: All persons who are now or will in the future be confined in the Clayton County Jail who are not also being confined under a sentence of imprisonment.
a. Medically Vulnerable Pretrial Subclass: All individuals in the Clayton County Jail, who are not under a sentence of imprisonment, whose age or medical conditions make them susceptible to serious illness or death if they contract COVID-19, specifically, people aged 55 or older, or people who have been

Case 1:20-cv-02791-ELR-CCB Document 7 Filed 07/02/20 Page 2 of 6
diagnosed with, or are receiving treatment for the following conditions: asthma (moderate to severe); cerebrovascular disease; chronic kidney disease; COPD (chronic obstructive pulmonary disease); cystic fibrosis; diabetes mellitus (types 1 and 2); serious heart conditions (such as heart failure, coronary artery disease, or cardiomyopathies); hypertension; immunocompromised state (from solid organ transplant, blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines); liver disease; neurologic conditions (such as dementia); obesity (body mass index [BMI] of 30 or higher); pregnancy; pulmonary fibrosis; sickle cell disease; thalassemia.
b. Disability Pretrial Subclass: All individuals in the Clayton County Jail who have not been sentenced to imprisonment and whose medical conditions make them susceptible to serious illness or death if they contract COVID-19, specifically, people who have been diagnosed with, or are receiving treatment for a medical condition which would qualify as a disability under the Americans with Disabilities Act and the Rehabilitation Act. The subclass includes people with any of the conditions listed in the preceding paragraph, except those who are medically vulnerable solely because of age, pregnancy, or BMI.
2. Principal Post-Adjudication Class: All persons who are now or will in the future be confined in the Clayton County Jail under sentence of imprisonment.
a. Medically Vulnerable Post-Adjudication Subclass: All individuals in the Clayton County Jail, who are under a sentence of imprisonment, whose age or medical conditions make them susceptible to serious illness or death if they contract COVID-19, specifically, people aged 55 or older, or people who have been diagnosed with, or are receiving treatment for the following conditions: asthma (moderate to severe); cerebrovascular disease; chronic kidney disease; COPD (chronic obstructive pulmonary disease); cystic fibrosis; diabetes mellitus (types 1 and 2); serious heart conditions (such as heart failure, coronary artery disease, or
2

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cardiomyopathies); hypertension; immunocompromised state (from solid organ transplant, blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines); liver disease; neurologic conditions (such as dementia); obesity (body mass index [BMI] of 30 or higher); pregnancy; pulmonary fibrosis; sickle cell disease; thalassemia.
b. Disability Post-Adjudication Subclass: All individuals in the Clayton County Jail who have been sentenced to imprisonment and whose medical conditions make them susceptible to serious illness or death if they contract COVID-19, specifically, people who have been diagnosed with, or are receiving treatment for a medical condition which would qualify as a disability under the Americans with Disabilities Act and the Rehabilitation Act. The subclass includes people with any of the conditions listed in the preceding paragraph, except those who are medically vulnerable solely because of age, pregnancy, or BMI.

CONCLUSION The Court should certify the six proposed classes and appoint the undersigned as class counsel.
Respectfully submitted,

Kosha S. Tucker Ga. Bar No. 214335 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA P.O. Box 77208 Atlanta, GA 30357 (678) 981-5295 ktucker@acluga.org

/s/ Ryan Primerano Sarah Geraghty Ga. Bar No. 291393 Jeremy Cutting Ga. Bar No. 947729 Ryan Primerano Ga. Bar No. 404962 SOUTHERN CENTER FOR HUMAN RIGHTS

3

Case 1:20-cv-02791-ELR-CCB Document 7 Filed 07/02/20 Page 4 of 6

Stephen L. Pevar* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 765 Asylum Avenue Hartford, Connecticut 06105 (860) 570-9830 spevar@aclu.org
David C. Fathi* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 Fifteenth Street, N.W., Seventh Floor Washington, DC 20005 (202) 548-6603 dfathi@aclu.org

60 Walton Street, N.W. Atlanta, GA 30303 (404) 688-1202 sgeraghty@schr.org
Brandon Buskey* Robert W. Hunter* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004 (212) 284-7364 bbuskey@aclu.org

*Motion for admission pro hac vice forthcoming.

Counsel for Plaintiffs

July 2, 2020

4

Case 1:20-cv-02791-ELR-CCB Document 7 Filed 07/02/20 Page 5 of 6
CERTIFICATE OF COMPLIANCE I certify that this document has been prepared in compliance with Local Rule 5.1C using 14-point Times New Roman font.
/s/ Ryan Primerano July 2, 2020

Case 1:20-cv-02791-ELR-CCB Document 7 Filed 07/02/20 Page 6 of 6
CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing was served via the Court’s CM/ECF system on all counsel registered with that system on July 1, 2020. The foregoing will be served on Defendants by personal service and by depositing true and correct copies thereof with the United States Postal Service, first-class postage prepaid, in envelopes addressed to each named Defendant at the following address:
Clayton County Sheriff’s Office 9157 Tara Boulevard Jonesboro, GA 30236
/s/ Ryan Primerano July 2, 2020

Case 1:20-cv-02791-ELR-CCB Document 7-1 Filed 07/02/20 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RHONDA JONES et al., Plaintiffs,
v. VICTOR HILL et al.,
Defendants.

CIVIL ACTION NO. 1:20-CV-2791-ELR

PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Kosha S. Tucker AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA P.O. Box 77208 Atlanta, GA 30357
Stephen L. Pevar AMERICAN CIVIL LIBERTIES UNION FOUNDATION 765 Asylum Avenue Hartford, CT 06105
David C. Fathi AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 Fifteenth Street, N.W., Seventh Floor Washington, DC 20005

Sarah Geraghty Jeremy Cutting Ryan Primerano SOUTHERN CENTER FOR HUMAN RIGHTS 60 Walton Street, N.W. Atlanta, GA 30303
Brandon Buskey Robert W. Hunter AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004

Counsel for Plaintiffs

Case 1:20-cv-02791-ELR-CCB Document 7-1 Filed 07/02/20 Page 2 of 33
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION .....................................................................................................1 PROPOSED CLASSES .............................................................................................2 BACKGROUND .......................................................................................................4
A. Defendants’ Inadequate Policies and Practices to Combat COVID-19 Pose a Substantial Risk of Serious Harm to All Clayton County Jail Detainees ...............................................................................................4
B. The Named Plaintiffs Are Being Subjected to Defendants’ Unlawful Policies and Practices ............................................................................6
ARGUMENT ............................................................................................................8 I. The Proposed Classes Meet the Requirements of Rule 23(a). ......................10
A. The Proposed Classes Are So Numerous That Joinder Would Be Impracticable .......................................................................................11
B. There Are Issues of Law and Fact Common to the Classes................14 C. The Proposed Class Representatives’ Claims Are Typical of Those of
the Classes ...........................................................................................18 D. The Proposed Class Representatives and Class Counsel Can
Adequately Represent the Classes.......................................................20 II. The Proposed Classes Meet the Requirements of Rule 23(b). ......................22
A. Certification of the Proposed Classes Is Warranted Under Rule 23(b)(1). ............................................................................................... 23
B. Certification of the Proposed Classes Is Warranted Under Rule 23(b)(2). ............................................................................................... 24
CONCLUSION .......................................................................................................25
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TABLE OF AUTHORITIES

CASES

PAGE

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997)..............................................................................................8

Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455 (2013)..............................................................................................9

Babineau v. Fed. Exp. Corp., 576 F.3d 1183 (11th Cir. 2009) ..........................................................................23

Baby Neal v. Casey, 43 F.3d 48 (3d Cir. 1994) ...................................................................................24

Braggs v. Dunn, 317 F.R.D. 634 (M.D. Ala. 2016).....................................................12, 15, 20, 24

Campos v. ChoicePoint, Inc., 237 F.R.D. 478 (N.D. Ga. 2006) ....................................................................9, 11

Carriuolo v. General Motors Co., 823 F.3d 977 (11th Cir. 2016) ............................................................................10

General Tel. Co. of Southwest v. Falcon, 457 U.S. 147 (1982)..............................................................................................9

Ibrahim v. Acosta, 326 F.R.D. 696 (S.D. Fla. 2018).........................................................................24

Huff v. N.D. Cass Co of Ala., 485 F.2d 710 (5th Cir. 1973) ................................................................................9

Jack v. Am. Linen Supply Co., 498 F.2d 122 (5th Cir. 1974) ..............................................................................12

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Case 1:20-cv-02791-ELR-CCB Document 7-1 Filed 07/02/20 Page 4 of 33
Johnson v. Montgomery Cty. Sheriff’s Dep’t, 99 F.R.D. 562 (M.D. Ala. 1983).........................................................................12
Kilgo v. Bowman Transp., Inc., 789 F.2d 859 (11th Cir. 1986) ......................................................................12, 14
Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004) ............................................................................9
Kornberg v. Carnival Cruise Lines, 741 F.2d 1332 (11th Cir. 1984) ....................................................................18, 19
Melanie K. v. Horton, No. 1:14-CV-710-WSD, 2015 WL 1308368 (N.D. Ga. Mar. 23, 2015) ....................................................24
Mills v. Foremost Ins. Co., 511 F.3d 1300 (11th Cir. 2008) ............................................................................9
Murray v. Auslander, 244 F.3d 807 (11th Cir. 2001) ......................................................................15, 20
Owens v. Metro. Life Ins. Co., 323 F.R.D. 411 (N.D. Ga. 2017) ........................................................8, 11, 12, 19
Parsons v. Ryan, 289 F.R.D. 513 (D. Ariz. 2013)....................................................................15, 24
Phillips v. Joint Legis. Comm. on Perform. and Expend. Rev., 637 F.2d 1014 (5th Cir. 1981) ............................................................................11
Postawko v. Mo. Dep’t of Corr., 910 F.3d 1030 (8th Cir. 2018) ............................................................................15
Prado-Steiman v. Bush, 221 F.3d 1266 (11th Cir. 2000) ....................................................................15, 18
Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181 (11th Cir. 2003) ..........................................................................20
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Case 1:20-cv-02791-ELR-CCB Document 7-1 Filed 07/02/20 Page 5 of 33
Wal-Mart v. Dukes, 564 U.S. 338 (2011)................................................................................18, 22, 24
Williams v. Mohawk Industries, 568 F.3d 1350 (11th Cir. 2009) ..........................................................................14
Yates v. Collier, 868 F.3d 354 (5th Cir. 2017) ..............................................................................15
RULES Fed. R. Civ. P. 23 ..............................................................................................passim Fed. R. Evid. 201 .....................................................................................................13 OTHER AUTHORITIES Bureau of Justice Statistics, Disabilities Among Prison and Jail
Inmates, 2011-12 (Dec. 2015) ............................................................................13 Ctrs. for Disease Control and Prevention, How COVID-19 Spreads ........................5 Ctrs. for Disease Control and Prevention, Interim Guidance on
Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020) .......................................5 Ctrs. for Disease Control and Prevention, Social Distancing....................................5 Ga. Dep’t of Community Affairs, County Jail Inmate Population Report (May 2020)..............................................................................................12 Ga. Dep’t of Public Health, Interim Guidance for Management of COVID-19 in Correctional and Detention Facilities in Georgia (Apr. 15, 2020)......................................................................................................5 Herbert B. Newberg et al., Newberg on Class Actions (4th ed.) .............................................................14, 19 World Health Organization, Coronavirus .................................................................5
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Case 1:20-cv-02791-ELR-CCB Document 7-1 Filed 07/02/20 Page 6 of 33
INTRODUCTION This case is about Defendants’ failure to act to protect the lives of people detained in the Clayton County Jail (“Jail”) from a novel coronavirus and its resulting disease, COVID-19. Defendants have failed to respond to the urgent threat posed to people confined in the Jail by this growing pandemic, making it impossible for these individuals to observe the precautionary steps necessary to keep themselves safe, such as social distancing, increased personal hygiene, sanitizing one’s environment, access to testing, and wearing protective clothing. Defendants’ disregard of the known risks of illness and death exposes jail detainees to a highly fatal, infectious disease in violation of their rights under the Eighth and Fourteenth Amendments, as well as federal disability rights laws. Plaintiffs are people incarcerated at the Clayton County Jail under conditions that put them at high risk of becoming victims of the COVID-19 global pandemic. While several counties in Georgia have undertaken measures to reduce their jail populations in an effort to slow the spread of COVID-19, Clayton County has thus far refused to take meaningful action to address the risks posed by COVID-19 and has failed to implement adequate, systemwide measures to protect incarcerated individuals. This puts the Plaintiffs and the classes they seek to represent in mortal jeopardy, and also endangers the larger community in light of the daily movement
1

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of both detainees and staff in and out of the Clayton County Jail.
On behalf of themselves and similarly situated persons, Plaintiffs challenge
these unconstitutional conditions and now move for class certification under
Federal Rules of Civil Procedure 23(a) and 23(b).
PROPOSED CLASSES
Plaintiffs seek to certify two principal classes and four subclasses defined as
follows:
1. Principal Pretrial Class: All persons who are now or will in the future be confined in the Clayton County Jail who are not also being confined under a sentence of imprisonment.
a. Medically Vulnerable Pretrial Subclass: All individuals in the Clayton County Jail, who are not under a sentence of imprisonment, whose age or medical conditions make them susceptible to serious illness or death if they contract COVID-19, specifically, people aged 55 or older, or people who have been diagnosed with, or are receiving treatment for the following conditions: asthma (moderate to severe); cerebrovascular disease; chronic kidney disease; COPD (chronic obstructive pulmonary disease); cystic fibrosis; diabetes mellitus (types 1 and 2); serious heart conditions (such as heart failure, coronary artery disease, or cardiomyopathies); hypertension; immunocompromised state (from solid organ transplant, blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines); liver disease; neurologic conditions (such as dementia); obesity (body mass index [BMI] of 30 or higher); pregnancy; pulmonary fibrosis; sickle cell disease; thalassemia.
b. Disability Pretrial Subclass: All individuals in the Clayton County Jail who have not been sentenced to imprisonment and
2

Case 1:20-cv-02791-ELR-CCB Document 7-1 Filed 07/02/20 Page 8 of 33
whose medical conditions make them susceptible to serious illness or death if they contract COVID-19, specifically, people who have been diagnosed with, or are receiving treatment for a medical condition which would qualify as a disability under the Americans with Disabilities Act and the Rehabilitation Act. The subclass includes people with any of the conditions listed in the preceding paragraph, except those who are medically vulnerable solely because of age, pregnancy, or BMI.
2. Principal Post-Adjudication Class: All persons who are now or will in the future be confined in the Clayton County Jail under sentence of imprisonment.
a. Medically Vulnerable Post-Adjudication Subclass: All individuals in the Clayton County Jail, who are under a sentence of imprisonment, whose age or medical conditions make them susceptible to serious illness or death if they contract COVID-19, specifically, people aged 55 or older, or people who have been diagnosed with, or are receiving treatment for the following conditions: asthma (moderate to severe); cerebrovascular disease; chronic kidney disease; COPD (chronic obstructive pulmonary disease); cystic fibrosis; diabetes mellitus (types 1 and 2); serious heart conditions (such as heart failure, coronary artery disease, or cardiomyopathies); hypertension; immunocompromised state (from solid organ transplant, blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines); liver disease; neurologic conditions (such as dementia); obesity (body mass index [BMI] of 30 or higher); pregnancy; pulmonary fibrosis; sickle cell disease; thalassemia.
b. Disability Post-Adjudication Subclass: All individuals in the Clayton County Jail who have been sentenced to imprisonment and whose medical conditions make them susceptible to serious illness or death if they contract COVID-19, specifically, people who have been diagnosed with, or are receiving treatment for a medical condition which would qualify as a disability under the Americans with Disabilities Act and the Rehabilitation Act. The subclass
3

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includes people with any of the conditions listed in the preceding paragraph, except those who are medically vulnerable solely because of age, pregnancy, or BMI. Plaintiffs seek two forms of relief to reduce the risk of harm to acceptable levels. First, on behalf of people who remain in the jail, Plaintiffs seek injunctive relief requiring Defendants to implement reasonable measures to reduce the risk of COVID-19 transmission such as promoting social distancing; ensuring adequate sanitation in cells and common areas; issuing effective personal protective equipment; providing timely and adequate medical care, screening, and testing; and quarantining and isolating suspected or known infected people in accordance with generally accepted medical norms. Second, to protect at-risk populations and facilitate mitigation efforts for those who remain in the jail, Plaintiffs seek immediate release or transfer for medically vulnerable and disabled individuals being held in the Clayton County Jail, pursuant to a writ of habeas corpus or an injunction.
BACKGROUND A. Defendants’ Inadequate Policies and Practices to Combat
COVID-19 Pose a Substantial Risk of Serious Harm to All Clayton County Jail Detainees. Georgia and the nation are in the midst of the most significant global pandemic in generations. COVID-19 is a highly contagious and deadly respiratory
4

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disease that poses grave health risks in serious cases, particularly to medically vulnerable people. (Doc. 1). Jails pose a heightened risk for the spread of COVID19. 1 There is no vaccine or cure for COVID-19. 2 The best course according to public health experts is to slow and prevent transmission, primarily through “social distancing.”3 This measure is particularly important because the virus spreads aggressively, and people can infect others even if they do not feel sick or exhibit any symptoms.4
The CDC has issued guidance about the prevention of COVID-19 specific to correctional and detention facilities.5 This guidance describes how to properly quarantine, isolate, and care for persons suspected or known to be positive for COVID-19 and their close contacts. It calls for many straightforward, easily
1 Ga. Dep’t of Public Health, Interim Guidance for Management of COVID-19 in Correctional and Detention Facilities in Georgia 1 (Apr. 15, 2020), https://bit.ly/3 bvwECh; Ctrs. for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities 6 (Mar. 23, 2020), https://bit.ly/3bu83xS. 2 World Health Organization, Coronavirus, https://bit.ly/31wjnIv (“At this time, there are no specific vaccines or treatments for COVID-19.”). 3 Ctrs. for Disease Control and Prevention, Social Distancing, https://bit.ly/2YR GueZ (“Limiting face-to-face contact with others is the best way to reduce the spread of coronavirus disease 2019 (COVID-19).”). 4 Centers for Disease Control, How COVID-19 Spreads, https://bit.ly/3dNfW2s. 5 Centers for Disease Control, Interim Guidance.
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achievable steps to prevent infection, including regular disinfection and frequent and thorough hand washing with soap, and for facilities to provide masks and protective equipment to be worn in congregate settings.
As set out more fully in the Complaint (Doc. 1), Defendants have failed to implement the CDC’s guidance or take other reasonable steps to reduce the risk of transmission of COVID-19, placing Plaintiffs and the putative class members at substantial risk of serious harm, including death. Defendants’ failures endanger not only all those within the institution, but the entire community. The only measures that will reasonably reduce the risk of harm are to swiftly release the people most vulnerable to the disease and implement disease-prevention measures for those who remain in the Jail.
B. The Named Plaintiffs Are Being Subjected to Defendants’ Unlawful Policies and Practices.
The four named plaintiffs are all currently incarcerated at the Clayton County Jail.
Rhonda Jones is a 58-year-old African-American woman. She is detained pretrial and seeks to represent the pretrial classes and subclasses. Ms. Jones has been confined to the Clayton County Jail since April 9, 2020, for a charge of aggravated assault. A $10,000 bond was set in her case, but she cannot afford it.
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She has been hospitalized twice in the past year for pneumonia. Ms. Jones is susceptible to serious injury or death if she contracts COVID-19.
Randolph Mitchell is a 72-year-old African-American man. He has been confined to the Clayton County Jail since August 9, 2019. He has less than two months left to serve on a 12-month sentence for simple battery, a misdemeanor, and seeks to represent the post-adjudication class and subclasses. He has been diagnosed with high blood pressure and a heart condition. Mr. Mitchell is susceptible to serious illness or death if he contracts COVID-19.
Barry Watkins is a 60-year-old Caucasian man. He is detained pretrial and seeks to represent the pretrial classes and subclasses. Mr. Watkins has been confined to the Clayton County Jail since August 31, 2018, for a charge of theft by deception. A $5,500 bond was set in his case, but he cannot afford it. He has Type 1 diabetes that requires a controlled diet and regular insulin injections. Mr. Watkins is susceptible to serious injury or death if he contracts COVID-19.
Michael Singleton is a 59-year-old African-American man. He has been confined to the Clayton County Jail since February 17, 2020. He is serving a oneyear sentence for a violation of probation and seeks to represent the postadjudication class and subclasses. Mr. Singleton has been diagnosed with high
7

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blood pressure and is susceptible to serious illness or death if he contracts COVID19.
ARGUMENT Plaintiffs’ claims for injunctive relief, and the Medically Vulnerable and Disability Subclasses’ petition for a writ of habeas corpus, arise from Defendants’ failure to protect all detainees from the severe risk of death or serious physical harm from COVID-19. All proposed class members challenge Defendants’ common failure to adequately protect all six classes from COVID-19 infection. And while the immediate habeas relief sought by the Medically Vulnerable and Disability Subclasses does not run to all class members, it would provide benefits not only to those subclasses, but to the class as a whole: it is only with a significant population reduction that the Jail will be able to successfully implement the public health measures needed to prevent harm to the other class members. Therefore, the Court should certify the Principal Pretrial and Post-Adjudication Classes and their corresponding Medically Vulnerable and Disability Subclasses. A plaintiff seeking class certification must satisfy each of the requirements of Rule 23(a) of the Federal Rules of Civil Procedure, and at least one of the three criteria for certification under Rule 23(b). Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614-15 (1997); Owens v. Metro. Life Ins. Co., 323 F.R.D. 411, 415 (N.D.
8

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Ga. 2017); Campos v. ChoicePoint, Inc., 237 F.R.D. 478, 484 (N.D. Ga. 2006). “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013). “Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id.
Class certification must be addressed “[a]t an early practicable time” after the complaint is filed. Fed. R. Civ. P. 23(c)(1)(A). In cases where the propriety of class certification is clear from the complaint—as often it is in civil rights actions like the present one—it is appropriate to rule on class certification at the pleading stage. See General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982); see, e.g., Klay v. Humana, Inc., 382 F.3d 1241, 1253 n.6 (11th Cir. 2004) (“[W]e will base our class certification ruling on the Third Complaint.”); see also Mills v. Foremost Ins. Co., 511 F.3d 1300, 1309 (11th Cir. 2008) (“In some instances, the propriety vel non of class certification can be gleaned from the face of the pleadings.”); Huff v. N.D. Cass Co of Ala., 485 F.2d 710, 713 (5th Cir. 1973). One reason for permitting an early class certification decision is that an order granting class certification is “always provisional in nature” and thus may be amended or
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vacated in light of later developments in a case. Carriuolo v. General Motors Co., 823 F.3d 977, 988 (11th Cir. 2016); see Fed. R. Civ. P. 23(c)(1)(C).
The propriety of class certification in this case is clear from the face of Plaintiffs’ complaint and declarations, and the material facts concerning class certification—including the impracticability of joinder and the similar conditions under which all detainees live—can be readily determined based on incontestable facts about the jail’s population and the uniformity of Defendants’ policies throughout the jail’s housing units. As discussed below, the hundreds of members of the six proposed classes cannot practicably be joined individually in a single action, and the answers to the questions of law and fact at issue in this case will determine, with respect to each Plaintiff and class member, whether the policies and practices applied to them violate federal law. Likewise, Defendants’ unlawful acts apply to every member of the classes, such that the requested final declaratory and injunctive relief is appropriate for the class as a whole. The Court should grant Plaintiffs’ motion for class certification. I. The Proposed Classes Meet the Requirements of Rule 23(a).
A plaintiff seeking class certification must meet four requirements under Rule 23(a): (1) the class must be so numerous that joinder of all members is impracticable; (2) there must be questions of law or fact common to the class; (3)
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the claims or defenses of the representative parties must be typical of the claims or defenses of the class; and (4) the representative parties must be able to fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). For the reasons discussed below, these prerequisites are easily satisfied in this case.
A. The Proposed Classes Are So Numerous That Joinder Would Be Impracticable.
The first requirement of Rule 23(a) is “that a class be so numerous that joinder of all members is impracticable.” Owens, 323 F.R.D. at 411 (citing Fed. R. Civ. P. 23(a)(1)). In determining numerosity, “[t]he proper focus is not on numbers alone, but on whether joinder of all members is practicable in view of the numerosity of the class and all other relevant factors.” Phillips v. Joint Legis. Comm. on Performance and Expenditure Review, 637 F.2d 1014, 1022 (5th Cir. 1981). A district court is permitted to make “common sense assumptions” in assessing numerosity. Campos v. ChoicePoint, Inc., 237 F.R.D. 478, 485 (N.D. Ga. 2006) (quoting Evans v. U.S. Pipe & Foundry, 696 F.2d 925, 930 (11th Cir.1983)). “As a general rule in the Eleventh Circuit, a prospective class with more than forty members is deemed to satisfy the numerosity requirement.” Owens, 323 F.R.D. at 417 (citing Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986)). In addition, “‘the fluid nature of a plaintiff class—as in the prison-litigation context—counsels in favor of certification of all present and
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future members.’” Braggs v. Dunn, 317 F.R.D. 634, 653 (M.D. Ala. 2016) (quoting Henderson v. Thomas, 289 F.R.D. 506, 510 (M.D. Ala. 2012)). Courts have recognized in cases seeking injunctive relief that it is “certainly impracticable” to join “unnamed, unknown” individuals who will in the future be, but are not yet, subjected to the wrongful conduct to be enjoined. Jack v. Am. Linen Supply Co., 498 F.2d 122, 124 (5th Cir. 1974); see, e.g., Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986) (finding joinder impracticable where future class members could not yet be identified); Johnson v. Montgomery Cty. Sheriff’s Dep’t, 99 F.R.D. 562, 565 (M.D. Ala. 1983) (“[W]hen a putative class includes future applicants and employees, as in the present case, joinder is impossible.”).
The proposed classes easily satisfy the numerosity requirement. Plaintiffs Jones and Watkins seek relief on behalf of a Principal Pretrial Class consisting of all people who are or will be detained at the Jail who are not under a sentence of imprisonment—a class consisting of approximately half of the Jail’s detainee population as well as an unknown number of future members.6 Similarly, the Principal Post-Adjudication Class, for whom Plaintiffs Mitchell and Singleton seek
6 See Ga. Dep’t of Community Affairs, County Jail Inmate Population Report 8 (May 2020), https://bit.ly/2Zp7OQv.
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relief, consists of all people who are or will be detained at the Jail under sentence of imprisonment; that class includes approximately 40 percent of the Jail’s population.7 The Clayton County Jail has a current population of over 1,800 detainees and will hold an indeterminate number of future detainees, making joinder of all members of the two Principal Classes impracticable. Regarding the Medically Vulnerable and Disability Subclasses, the April report compiled by the Clayton County Jail’s medical provider identified 739 detainees as “chronic care patients” for that month alone. A significant percentage of these patients are expected to be members of the Medically Vulnerable and Disability Subclasses. Moreover, pursuant to Fed. R. Evid. 201(c)(2), Plaintiffs request that the Court take judicial notice that people in jails generally have high rates of disability and chronic illness, meaning that a significant percentage of the jail’s population can be expected to include members of the Disability Subclass, the Medically Vulnerable Subclass, or both.8 Because the proposed classes can be expected to include well over forty current members, they satisfy the numerosity requirement. See Owens, 323 F.R.D. at 417.
7 Id. 8 Bureau of Justice Statistics, Disabilities Among Prison and Jail Inmates, 2011-12 1 (Dec. 2015), https://bit.ly/31wTkRp (estimating that approximately 40 percent of jail detainees were currently experiencing a chronic health condition).
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The numerosity requirement is also met because, regardless of the number of current class members, joinder is impracticable with respect to future members of each class. The members of the six classes include both individuals currently incarcerated and those individuals who may be incarcerated in the coming weeks and months as COVID-19 continues to spread. Because the classes include individuals who will suffer the same injury in the future, traditional joinder is particularly difficult. See Newberg on Class Actions § 25:4 (4th ed.) (“Even a small class of fewer than 10 actual members may be upheld if an indeterminate number of individuals are likely to become class members in the future or if the identity or location of many class members is unknown for good cause.”); Kilgo, 789 F.2d at 878 (finding impracticability of non-class joinder for a class including future members, who necessarily could not yet be identified).
B. There Are Issues of Law and Fact Common to the Classes. The second Rule 23(a) requirement is that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). This requirement is met if there is “at least one issue whose resolution will affect all or a significant number of the putative class members.” Williams v. Mohawk Industries, 568 F.3d 1350, 1355 (11th Cir. 2009) (quoting Stewart v. Winter, 669 F.2d 328, 335 (5th Cir.1982)) (internal quotation marks omitted). The touchstone of commonality is whether
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disputed legal or factual questions are capable of class-wide proof or resolution. Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001). Claims need not be identical to satisfy this requirement, and variations within the class are permissible. Prado-Steiman v. Bush, 221 F.3d 1266, 1279 n.14 (11th Cir. 2000). Likewise, a plaintiff “need not show that common questions ‘predominate’ over individual questions,” because “even a single common question” will satisfy the commonality requirement. See Braggs, 317 F.R.D. at 655 (quoting Wal-Mart v. Dukes, 564 U.S. 338, 359 (2011)).
Although there need only be a single common issue of law or fact under Rule 23(a), each of the six classes and subclasses presents numerous common issues of both law and fact.9 For each class and subclass, common questions include:
• Principal Pretrial Class: o Common questions of fact include whether the class members’ living conditions increase their risk of COVID-19 infections.
9 The commonality requirement is met where, as here, plaintiffs challenge commonly applicable conditions and procedures in correctional facilities. See, e.g., Parsons v. Ryan, 754 F.3d 657, 681 (9th Cir. 2014) (collecting cases, finding commonality is satisfied where the lawsuit challenges “systemic policies and practices that allegedly expose inmates to a substantial risk of harm,” even where there are “individual factual differences among class members”); see also Postawko v. Mo. Dep’t of Corr., 910 F.3d 1030, 1038–39 (8th Cir. 2018) (similar); Yates v. Collier, 868 F.3d 354, 363 (5th Cir. 2017) (similar).
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o Common questions of law include whether Defendants’ failures to ensure adequate social distancing, sanitation, and personal hygiene present a substantial risk of serious harm; whether Defendants have responded reasonably to the risk of harm created by conditions at the Clayton County Jail; and whether Defendants have violated the class members’ rights under the Fourteenth Amendment Due Process Clause.
• Medically Vulnerable Pretrial Subclass: o Common questions of fact include whether the class members’ living conditions and preexisting medical conditions increase their risk of COVID-19 infections. o Common questions of law include whether Defendants’ failures to ensure adequate social distancing, sanitation, and personal hygiene present a substantial risk of serious harm; whether Defendants have responded reasonably to the risk of harm created by conditions at the Clayton County Jail; and whether Defendants have violated the class members’ rights under the Fourteenth Amendment Due Process Clause.
• Disability Pretrial Subclass: o Common questions of fact include whether the class members’ living conditions and disabilities, as defined under federal disability rights laws, increase their risk of COVID-19 infections. o Common questions of law include whether Defendants have prevented the class members from benefiting from programs, services, and activities on account of their disabilities; whether Defendants have failed to provide reasonable accommodations for the class members’ disabilities; and whether Defendants have violated the class members’ rights under the Americans with Disabilities Act and Rehabilitation Act.
• Principal Post-Adjudication Class:
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o Common questions of fact include whether the class members’ living conditions increase their risk of COVID-19 infections.
o Common questions of law include whether Defendants’ failures to ensure adequate social distancing, sanitation, and personal hygiene present a substantial risk of serious harm; whether Defendants have responded reasonably to the risk of harm created by conditions at the Clayton County Jail; and whether Defendants have violated the class members’ rights under the Eighth and Fourteenth Amendments.
• Medically Vulnerable Post-Adjudication Subclass: o Common questions of fact include whether the class members’ living conditions and preexisting medical conditions increase their risk of COVID-19 infections. o Common questions of law include whether Defendants’ failures to ensure adequate social distancing, sanitation, and personal hygiene present a substantial risk of serious harm; whether Defendants have responded reasonably to the risk of harm created by conditions at the Clayton County Jail; and whether Defendants have violated the class members’ rights under the Eighth and Fourteenth Amendments.
• Disability Post-Adjudication Subclass: o Common questions of fact include whether the class members’ living conditions and disabilities, as defined under federal disability rights laws, increase their risk of COVID-19 infections. o Common questions of law include whether Defendants have prevented the class members from benefiting from programs, services, and activities on account of their disabilities; whether Defendants have failed to provide reasonable accommodations for the class members’ disabilities; and whether Defendants have violated the class members’ rights under the Americans with Disabilities Act and Rehabilitation Act.
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The common questions of fact and law listed above are those necessary to determine the Defendants’ liability with respect to all current and future people in their custody who are subject to the challenged policies and practices of the Clayton County Jail. Therefore, there are factual and legal questions in this case whose resolution will advance the legal claims of all class members. See WalMart, 564 U.S. at 349–50 (explaining that it is not just the existence of hypothetical common questions that justify class treatment but common answers that resolve the factual or legal claims presented by the plaintiffs).
C. The Proposed Class Representatives’ Claims Are Typical of Those of the Classes.
Rule 23(a)’s typicality requirement ensures that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “A class representative must possess the same interest and suffer the same injury as the class members in order to be typical under Rule 23(a)(3).” Murray, 244 F.3d at 811. “Typicality, however, does not require identical claims or defenses.” Kornberg v. Carnival Cruise Lines, 741 F.2d 1332, 1337 (11th Cir. 1984). Rather, it “measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large.” Prado-Steiman, 221 F.3d at 1279. “A sufficient nexus is established if the claims or defenses of the class and the class representative arise from the same event or
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pattern or practice and are based on the same legal theory.” Kornberg, 741 F.2d at 1337. As long as the claims of the named plaintiffs and the class members arise from the same practice and the same underlying legal theory, the typicality requirement is satisfied even if there is some “factual variation” in how the practice applies to the named plaintiffs and the class members. Owens, 323 F.R.D. at 418 (quoting Kornberg, 741 F.2d at 1337).
Here, the named Plaintiffs’ legal claims are the same as the legal claims of the other members of the proposed classes they represent. The Plaintiffs and class members they represent are all injured in the same way: Defendants are incarcerating them in conditions of confinement that put them at substantial risk of serious harm. For the subclasses, each person claims that they must be released because their health is at imminent and immediate risk from the same virus and same policy failures as each other person in the subclasses. Thus, the ongoing and future injury of the classes and the class representatives arise from the same policy and practice. See Newberg on Class Actions § 23:4 (4th ed.) (“[T]he typicality requirement is generally satisfied when the representative plaintiff is subject to the same statute, regulation, or policy as class members.”). The claims of the named Plaintiffs also rely on the same legal theories as the claims of all other class members concerning whether Defendants’ deliberate indifference to the risk of
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serious harm is unconstitutional. See Murray, 244 F.3d at 811 (“The typicality requirement may be satisfied despite substantial factual differences . . . when there is a ‘strong similarity of legal theories.’” (citation omitted). The proof concerning whether Defendants have acted with deliberate indifference in the face of the COVID-19 pandemic and the legal argument about whether this inaction is unlawful are critical for each class and subclass member in this case to establish the liability of Defendants. Plaintiffs therefore satisfy the typicality requirement. See Braggs, 317 F.R.D. at 663-64.
D. The Proposed Class Representatives and Class Counsel Can Adequately Represent the Classes.
As class representatives in this case, named Plaintiffs will “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequacy analysis involves “two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.” Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) (citation omitted).
Regarding the first inquiry, the named Plaintiffs are adequate representatives of the classes they represent because their interests in the vindication of the legal claims that they raise are completely aligned with, and are not antagonistic to, the interests of the other class members. The named Plaintiffs, like other class
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members, have a strong interest in no longer being detained in unsafe and possibly lethal conditions. The named Plaintiffs who represent the Medically Vulnerable and Disability Subclasses share the subclasses’ interest in release because of the particular danger that the virus presents for them. There are no known conflicts of interest among members of the proposed classes, all of whom have a similar interest in vindicating their constitutional and statutory rights in the face of their unlawful treatment by Defendants. Moreover, the declaratory and injunctive relief sought by the named Plaintiffs will benefit the entire class.
Regarding the second inquiry, the named Plaintiffs also meet the requirement that they will adequately prosecute the action. They are represented in this case by experienced civil rights attorneys who are able and willing to conduct this litigation on behalf of the class. Plaintiffs’ counsel from the ACLU, the ACLU of Georgia, and the Southern Center for Human Rights collectively have extensive experience litigating complex class action cases and civil rights cases on behalf of incarcerated and detained people.10 Plaintiffs thus satisfy Rule 23(a)(4)’s adequacy requirement.
10 For example, ACLU attorney David C. Fathi is Director of the ACLU National Prison Project, which brings challenges to conditions of confinement in prisons, jails, and other detention facilities. For almost 25 years he has devoted his legal practice exclusively to class actions on behalf of incarcerated persons, serving as
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II. The Proposed Classes Meet the Requirements of Rule 23(b).
This action qualifies for class certification under both Rule 23(b)(1) and
Rule 23(b)(2). See Wal-Mart, 564 U.S. at 361–62 (“Classes certified under (b)(1)
and (b)(2) share the most traditional justifications for class treatment—that
individual adjudications would be impossible or unworkable, as in a (b)(1) class, or
lead counsel or co-counsel in cases including Parsons v. Ryan, 289 F.R.D. 513 (D. Ariz. 2013); Jones’El v. Berge, 172 F. Supp. 2d 1128, 164 F. Supp. 2d 1096 (W.D. Wis. 2001); Inmates of the Rhode Island Training School v. Martinez, 465 F. Supp. 2d 131 (D.R.I. 2006); and Austin v. Pennsylvania Department of Corrections, 876 F. Supp. 1437 (E.D. Pa. 1995). ACLU attorney Stephen Pevar has been employed by the National Office of the ACLU since 1976 and has litigated more than 50 class actions against jails and prisons, including Board of Pardons v. Allen, 482 U.S. 369 (1987); Kelly v. Wengler, 822 F.3d 1085 (9th Cir. 2016); Hiser v. Franklin, 82 F.3d 869 (9th Cir. 1996); Browning v. Vernon, 44 F.3d 318 (9th Cir. 1995); J.P. v. Taft, 439 F. Supp. 2d 793 (S.D. Ohio 2006); Ginest v. Board of County Comm’rs of Carbon County, Wyoming, 423 F. Supp.2d 1237 (D. Wyo. 2006); Skinner v. Uphoff, 234 F. Supp.2d 1208 (D. Wyo. 2002); Kersh v. Board of County Commr’s of Natrona County, Wyoming, 851 F. Supp. 1541 (D. Wyo. 1994); Sage v. Risley, 795 F. Supp. 134 (D. Mont. 1992); McKenzie v. Crotty, 738 F. Supp. 1287 (D.S.D. 1990); Noren v. Straw, 578 F. Supp. 1 (D. Mont. 1982). SCHR attorney Sarah Geraghty has served as lead counsel or co-counsel in prison-conditions class actions including Georgia Advocacy Office v. Jackson, No. 1:19-CV-1634 (N.D. Ga.); Gumm v. Ford, No. 5:15-CV-41 (M.D. Ga.); and Hicks v. Hetzel, No. 2:09-CV-155 (M.D. Ala.), as well as in other civil rights class actions, see, e.g., Adams v. Sentinel Offender Serv., No. 1:17-CV-2813 (N.D. Ga.); K.A. v. Hobby, No. 1:17-CV-99 (M.D. Ga.); Harrison v. Consol. Gov’t of Columbus, 4:16-CV-329 (M.D. Ga.); Luse v. Sentinel Offender Services, No. 2:16-CV-30 (N.D. Ga.); Walker v. City of Calhoun, No. 4:15CV-0170 (N.D. Ga.); Edwards v. Red Hills Community Probation, 1:15-CV-67 (M.D. Ga.); Jones v. Grady County, No. 1:13-CV-156 (M.D. Ga.).
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that the relief sought must perforce affect the entire class at once, as in a (b)(2) class.”).
A. Certification of the Proposed Classes Is Warranted Under Rule 23(b)(1).
Rule 23(b)(1) permits class certification where “prosecuting separate actions by or against individual class members would create a risk of . . . inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class . . . .” Fed. R. Civ. P. 23(b)(1)(A). Certification under Rule 23(b)(1)(A) is appropriate only in “actions seeking declaratory or injunctive relief.” Babineau v. Fed. Exp. Corp., 576 F.3d 1183, 1195 (11th Cir. 2009). Plaintiffs easily satisfy this standard. If hundreds of individual class members were to bring separate suits challenging Defendants’ inadequate policies and practices to combat the COVID-19 virus, the adjudication of these actions would risk creating inconsistent decisions that would establish varying standards to which Defendants would have to adhere. Any prospective relief granted to Plaintiffs will necessarily benefit the classes they represent; therefore, certification pursuant to Rule 23(b)(1) is appropriate.
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B. Certification of the Proposed Classes Is Warranted Under Rule 23(b)(2).
Rule 23(b)(2) provides for class certification when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2); Wal-Mart, 564 U.S. at 360; Melanie K. v. Horton, No. 1:14-CV-710-WSD, 2015 WL 1308368, at *5 (N.D. Ga. Mar. 23, 2015). The requirements of Rule 23(b)(2) are “almost automatically satisfied” in actions seeking injunctive relief for common legal claims. Baby Neal v. Casey, 43 F.3d 48, 58 (3d Cir. 1994). And “Rule 23(b)(2) has been liberally applied in the area of civil rights, including suits challenging conditions and practices at various detention facilities.” See Braggs, 317 F.R.D. at 667 (quoting Bumgarner v. N.C. Dep’t of Corr., 276 F.R.D. 452, 457 (E.D.N.C. 2011)); Parsons v. Ryan, 289 F.R.D. 513, 524 (D. Ariz. 2013), aff’d, 754 F.3d 657 (9th Cir. 2014) (“[C]laims for injunctive relief stemming from allegedly unconstitutional conditions of confinement are the quintessential type of claims that Rule 23(b)(2) was meant to address.”).
The classes and subclasses that Plaintiffs seek to certify fit squarely within Rule 23(b)(2)’s requirements. See, e.g., Ibrahim v. Acosta, 326 F.R.D. 696, 699 (S.D. Fla. 2018) (certifying class of plaintiffs seeking habeas relief). Plaintiffs and
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putative class members challenge Defendants’ failure to implement adequate safety precautions at the Jail, which exposes them to a heightened risk of contracting COVID-19.
For example, Plaintiffs Jones and Watkins seek to represent the Principal Pretrial Class, and any prospective relief granted to Plaintiffs Jones and Watkins with respect to the jail’s conditions will necessarily benefit each member of the class because all pretrial detainees are held under similar conditions and subjected to the same challenged policies and practices. Plaintiffs Jones and Watkins also seek to represent the Medically Vulnerable Pretrial Subclass and Disability Pretrial Subclass, and any prospective relief granted to Plaintiffs Jones and Watkins— including improvements to the jail’s conditions and releases of certain detainees— will necessarily benefit each member of the subclass. The same is true for the members of the Post-Adjudication Classes, who are entitled to relief similar to that sought by the Pretrial Classes but under distinct constitutional provisions. Plaintiffs thus qualify for certification under Rule 23(b)(2).
CONCLUSION The Court should certify the six proposed classes and appoint the undersigned as class counsel.
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Respectfully submitted,

Kosha S. Tucker Ga. Bar No. 214335 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA P.O. Box 77208 Atlanta, GA 30357 (678) 981-5295 ktucker@acluga.org
Stephen L. Pevar* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 765 Asylum Avenue Hartford, Connecticut 06105 (860) 570-9830 spevar@aclu.org
David C. Fathi* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 Fifteenth Street, N.W., Seventh Floor Washington, DC 20005 (202) 548-6603 dfathi@aclu.org

/s/ Ryan Primerano Sarah Geraghty Ga. Bar No. 291393 Jeremy Cutting Ga. Bar No. 947729 Ryan Primerano Ga. Bar No. 404962 SOUTHERN CENTER FOR HUMAN RIGHTS 60 Walton Street, N.W. Atlanta, GA 30303 (404) 688-1202 sgeraghty@schr.org
Brandon Buskey* Robert W. Hunter* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004 (212) 284-7364 bbuskey@aclu.org

*Motion for admission pro hac vice forthcoming.

Counsel for Plaintiffs

July 2, 2020

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CERTIFICATE OF COMPLIANCE Pursuant to N.D. Ga. Local Civil Rule 7.1(D), I hereby certify that the foregoing has been prepared in compliance with N.D. Ga. Local Civil Rule 5.1(C) in Times New Roman 14-point typeface.

July 2, 2020

/s/ Ryan Primerano

Case 1:20-cv-02791-ELR-CCB Document 7-1 Filed 07/02/20 Page 33 of 33

CERTIFICATE OF SERVICE I certify that I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of filing to all counsel of record. The foregoing will be served on Defendants by personal service and by depositing true and correct copies thereof with the United States Postal Service, first-class postage prepaid, in envelopes addressed to each named Defendant at the following address:
Clayton County Sheriff’s Office 9157 Tara Boulevard Jonesboro, GA 30236

July 2, 2020

/s/ Ryan Primerano

 
 Case 1:20-cv-02791-ELR-CCB Document 8 Filed 07/09/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RHONDA JONES, etal, *
*

Plaintiffs, *
*

v. * 1:20-CV-02791-ELR
*

VICTOR HELL, In His Official Capacity * as Sheriff'of Clay ton County, Georgia, *

et

al.,

* *

Defendants. *

ORDER
On July 1, 2020, Plaintiffs Rhonda Hill, Randolph Mitchell, Michael
Singleton, and Barry Watkins, on behalf of themselves and others similarly situated, filed a Class Action Complaint and Petition for Writ of Habeas Corpus
wherein they request that the Court issue preliminary injunctive relief. Compl. at
109 [Doc. 1]. This matter is now before the Court on that request. For a party to obtain a preliminary injunction, the undersigned's Instructions
require the following procedure:
Any request for a temporary restraining order or for preliminary injunctive relief must be made by a separate motion and conform to FED. R. Crv. P. 65. See LR 7.1A(1), NDGa. A request for a temporary restraining order or preliminary injunction found only in the complaint will not be

Case 1:20-cv-02791-ELR-CCB Document 8 Filed 07/09/20 Page 2 of 2
considered at the time the complaint is filed and the request will be considered when the merits of the case are addressed. After filing a motion for a temporary restraining order or a preliminary injunction, the movant must contact [the undersigned's courtroom deputy clerk] to request expedited consideration of the motion; otherwise, the motion will be
treated as a non-emergency matter.
Instructions for Civil Cases Assigned to the Honorable Eleanor L. Ross. [Doc. 5 at 7]. Plaintiffs' request for preliminary injunctive relief is within their Complaint and not filed in a separate motion. Accordingly, the Court denies Plaintiffs' request. The Court directs Plaintiffs to follow the procedures set forth in the undersigned's Instructions if they choose to pursue the matter.
For the foregoing reasons, the Court DENIES Plaintiffs' request for preliminary injunctive relief. Furthermore, because Plaintiffs' Complaint seeks habeas corpus relief pursuant to 28 U.S.C. §§ 2241 and 2243, the Court DIRECTS the Clerk to refer this case to a Magistrate Judge pursuant to Standing Order 18-01.
SO ORDERED, this ^ day of July, 2020.
Eleanor L. Ross
United States District Judge Northern District of Georgia

 
 Case 1:20-cv-02791-ELR-CCB Document 19 Filed 07/27/20 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RHONDA JONES et al., Plaintiffs,
v. VICTOR HILL et al.,
Defendants.

CIVIL ACTION NO. 1:20-CV-2791-ELR-CCB

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Plaintiffs respectfully move the Court under Rule 65(a) of the Federal Rules of Civil Procedure to enter a preliminary injunction requiring Defendants to take steps to protect Plaintiffs and putative class members from being infected with the virus that causes COVID-19. A preliminary injunction is granted when (1) the plaintiff is likely to succeed on the merits of his or her claims; (2) the plaintiff would suffer irreparable harm in the absence of an injunction; (3) the harm suffered by the plaintiff absent an injunction would exceed the harm that the injunction would cause the defendant; and (4) an injunction would not disserve the public interest. See Lebron v. Sec’y, Fla. Dep’t of Children and Families, 710 F.3d 1202, 1206 (11th Cir. 2013). As set forth in the attached brief and exhibits, Plaintiffs meet the requirements for a

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preliminary injunction ordering relief under 42 U.S.C. § 1983; the Americans with Disabilities Act, 42 U.S.C. §§ 12131–12133; the Rehabilitation Act, 29 U.S.C. §§ 701 et seq.; and 28 U.S.C. §§ 2241 and 2243. Specifically, Plaintiffs respectfully request that the Court enter an order with the following terms:
1. Defendants shall create and file with the Court reasonably specific and detailed written plans—developed in consultation with the Georgia Department of Public Health and/or a qualified medical or public health expert in preventing and mitigating the spread of infectious diseases—for addressing the following matters:
A. Educating detainees, staff members, contractors, and/or vendors about COVID-19, including symptoms, the importance of social distancing and frequent hand washing, the proper use of personal protective equipment, and other appropriate measures to prevent or mitigate the spread of the virus that causes COVID-19, with this education continuing on a regular and as-needed basis as more information becomes available about the virus;
B. Screening detainees, staff members, contractors, vendors, and/or visitors to the jail for symptoms of COVID-19 upon entry to the jail;
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C. Maintaining an adequate supply of COVID-19 tests and administering them to (1) all individuals who are booked into the jail; (2) a random, representative sample of all detainees and staff members at least once every 14 days; and (3) all detainees, staff members, contractors, and/or vendors suspected of being infected with the virus that causes COVID-19;
D. Responding promptly and effectively when detainees report experiencing symptoms consistent with COVID-19;
E. Detecting, monitoring, documenting, and quarantining or isolating suspected or known cases of COVID-19 among detainees or staff members, including but not limited to taking reasonable steps to identify persons within the jail who have been in contact with a person who has tested positive for or exhibited symptoms of COVID-19;
F. Ensuring that detainees known or suspected to have COVID-19 do not interact with detainees who are not known or suspected to have COVID-19;
G. Creating, posting, and implementing schedules for thorough cleaning and sanitizing of cells, common areas, and objects
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used by a person known or suspected to have COVID-19; H. Facilitating at least six feet of distance between detainees and
all other persons during all out-of-cell jail operations, including free time, recreation time, sick call, pill call, meal distribution, transport to video court and other group activities; I. Reassigning detainees within the jail facility as appropriate to maximize the number of detainees assigned a standard bed to sleep in and minimize the number of detainees required to sleep on the floor; J. Maintaining and providing to detainees, as appropriate, adequate facilities for frequent hand washing, and adequate supplies of personal hygiene items, including soap, hand sanitizer, tissue paper, paper towels, and toothpaste; K. Maintaining, using, and providing to detainees adequate cleaning supplies for cleaning cells, common areas, and fixtures in the jail, including chemical solutions that are effective against the virus that causes COVID-19; L. Creating, posting, and adhering to schedules, and reminding detainees why and how to clean using issued cleaning
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materials; M. Maintaining and providing to detainees adequate supplies of
personal protective equipment and similar items, including clean and serviceable face coverings, N95 or equivalent masks, gloves, face shields, and/or protective outer garments effective to prevent the spread of the virus that causes COVID-19; N. Creating, posting, and adhering to schedules to clean objects that are frequently touched, including door handles, light switches, sink handles, countertops and tabletops, toilets, toilet handles, recreation equipment, kiosks, telephones, and showers; O. Providing adequate clothing and laundry service to detainees; P. Maintaining and administering the seasonal influenza vaccine to all detainees and individuals booked into the jail who agree to be vaccinated; Q. Providing adequate, additional protective measures for all detainees performing work assignments in the jail; R. Providing adequate, additional protective measures for all detainees who are members of the Medically Vulnerable
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Subclasses, as defined in paragraphs 189 and 194 of Plaintiffs’ complaint (Doc. 1); S. Ensuring that detainees, including those who cannot easily access a kiosk, have ready access to means of reporting medical problems and unsafe conditions of confinement, including, but not limited to, access to grievance and sick call systems; T. Documenting and monitoring the performance of all COVID-19 prevention and mitigation measures in the jail; and U. Educating detainees about COVID-19 quarantining and other protective measures to take upon release to the community. 2. Plaintiffs shall file with the Court, within three days of Defendants’ filing of the written plans discussed above, written responses to Defendants’ plans identifying any areas in which Defendants’ proposed response is alleged to be insufficient to prevent irreparable harm to detainees. For any matter on which Plaintiffs disagree with the Defendants’ proposed remedial plan, Plaintiffs shall propose reasonably specific and detailed substitute measures. 3. The Court will consider the parties’ submissions and will thereafter enter a renewed preliminary injunction that is narrowly drawn, extends no further than necessary to correct the harm the court finds requires preliminary relief, and is
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the least intrusive means necessary to correct that harm. See 18 U.S.C. § 3626(a)(2). Within 30 days of the Court’s entry of the renewed preliminary injunction, and every 30 days thereafter, Defendants shall file with the Court and serve on Plaintiffs a status report identifying the jail’s detainee population, the number of active and recovered COVID-19 cases that have been identified in the jail, and Defendants’ efforts to comply with each provision of the preliminary injunction. Within 7 days of each status report filed by Defendants, Plaintiffs may file a response.
4. Defendants shall provide to the Court and Plaintiffs’ counsel records sufficient to show the following information, and shall provide updated versions of these documents to the Court and Plaintiffs’ counsel periodically, and no less than every seven days, for the duration of a preliminary injunction order:
A. The names, reasons for detention, incarceration dates, housing assignments, dates of birth, and bond amounts (if applicable) for all current Clayton County Jail detainees;
B. The names and relevant medical conditions of all detainees who are members of the Medically Vulnerable Subclasses, as defined in paragraphs 189 and 194 of Plaintiffs’ complaint.
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C. The names of all Clayton County Jail detainees who are eligible for earned-time credit, home confinement, and/or other forms of discretionary release from the jail under the Sheriff’s control; and
D. For individuals held on one or more bond orders, Defendants shall identify those individuals who would be eligible immediately for release if they paid the applicable bond amounts.
5. Defendants shall create and file with the Court within seven days of a preliminary injunction order a reasonably specific and detailed written plan by which Defendants or their designees will review each detainee eligible for discretionary release by the Sheriff and determine whether to grant discretionary release to each eligible detainee.
6. To further aid the Court’s evaluation of whether release and/or enlargement is appropriate relief for Plaintiffs and class members’ constitutional and irreparable injuries, Defendants shall create and file under seal with the Court within seven days of the date of a preliminary injunction order a list of all members of the Medically Vulnerable Subclasses that Defendants deem unsuitable for
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release under any circumstances. The list must describe the asserted reason with reasonable specificity and identify the evidentiary basis for the asserted reason.
7. The parties shall jointly create and file under seal with the Court within 14 days of a preliminary injunction order a list identifying (a) all members of the Medically Vulnerable Subclasses that the parties agree are suitable for release by this Court; and (b) all members of the Medically Vulnerable Subclasses for whom the parties cannot reach an agreement as to the suitability of release, along with a concise statement explaining the bases of the parties’ disagreement.
8. Following receipt of the parties’ submissions pursuant to paragraphs 6 through 9, the Court will issue further orders setting forth a process to determine whether the Court must release certain class members under 42 U.S.C. § 1983, 28 U.S.C. §§ 2241 and 2243; or under the Americans with Disabilities Act and Rehabilitation Act, in order to ensure those persons are not in unreasonable risk of infection from COVID-19.
CONCLUSION The Court should grant a preliminary injunction and writ of habeas corpus.
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Respectfully submitted,

Kosha S. Tucker Ga. Bar No. 214335 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA P.O. Box 77208 Atlanta, GA 30357 (678) 981-5295 ktucker@acluga.org
Stephen L. Pevar AMERICAN CIVIL LIBERTIES UNION FOUNDATION 765 Asylum Avenue Hartford, CT 06105 (860) 570-9830 spevar@aclu.org
David C. Fathi AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 Fifteenth Street, N.W., Seventh Floor Washington, DC 20005 (202) 548-6603 dfathi@aclu.org

/s/ Jeremy Cutting Sarah Geraghty Ga. Bar No. 291393 Jeremy Cutting Ga. Bar No. 947729 Ryan Primerano Ga. Bar No. 404962 SOUTHERN CENTER FOR HUMAN RIGHTS 60 Walton Street, N.W. Atlanta, GA 30303 (404) 688-1202 sgeraghty@schr.org
Brandon Buskey Robert W. Hunter AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004 (212) 284-7364 bbuskey@aclu.org

July 27, 2020

Counsel for Plaintiffs

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CERTIFICATE OF COMPLIANCE I certify that this document has been prepared in compliance with Local Rule 5.1C using 14-point Times New Roman font.
/s/ Jeremy Cutting July 27, 2020

Case 1:20-cv-02791-ELR-CCB Document 19 Filed 07/27/20 Page 12 of 12
CERTIFICATE OF SERVICE I certify that I filed the foregoing using the Court’s CM/ECF system, which will send notification of filing to all counsel of record.
/s/ Jeremy Cutting July 27, 2020

Case 1:20-cv-02791-ELR-CCB Document 19-1 Filed 07/27/20 Page 1 of 45

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RHONDA JONES et al.,

Plaintiffs, v. VICTOR HILL et al.,

CIVIL ACTION NO. 1:20-CV-2791-ELR-CCB

Defendants.

PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

July 27, 2020

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TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTION .....................................................................................................1 FACTUAL BACKGROUND....................................................................................5
A. COVID-19 Presents a Substantial Risk of Severe Illness and Death to People in Jails ..................................................................5
B. Defendants Have Failed to Take Reasonable Steps to Prevent and Mitigate COVID-19 Exposure in the Jail .........................7
LEGAL STANDARD..............................................................................................13 ARGUMENT ...........................................................................................................14 I. Plaintiffs Are Likely to Prevail on the Merits ...............................................14
A. Defendants Are Punishing Pretrial Plaintiffs in Violation of the Fourteenth Amendment Due Process Clause............................14
B. Defendants Are Deliberately Indifferent to Plaintiffs’ Constitutional Rights...........................................................................17 1. The COVID-19 Pandemic Poses an Objective Risk of Serious Harm ........................................................................18 2. Defendants Have Been Deliberately Indifferent.......................19
C. The Medically Vulnerable and Disability Subclasses Are Likely to Prevail on Their Habeas Claim............................................26 1. COVID-19 Makes Confinement Unlawful for the Medically Vulnerable and Disability Subclasses .....................26 2. Habeas Relief May Take the Form of Release or Transfer .....................................................................................28
D. The Disability Subclasses Are Likely to Prevail on Their Claim That Defendants Are Violating the ADA and the RA........................................................................................................28
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II. Without Injunctive Relief, Plaintiffs Will Be Irreparably Harmed........................................................................................................... 33
III. The Public Interest and Balance of Equities Favor Plaintiffs .......................33 CONCLUSION ........................................................................................................35 CERTIFICATE OF COMPLIANCE
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TABLE OF AUTHORITIES

CASES

PAGE

Alcantara v. Archambeault, No. 3:20-CV-756, 2020 WL 2315777 (S.D. Cal. May 1, 2020) ........................35

Alexander v. Choate, 469 U.S. 287 (1985)............................................................................................29

Ancata v. Prison Health Servs. Inc., 769 F.2d 700 (11th Cir. 1985) ............................................................................34

Arias v. Decker, No. 1:20-CV-2802, 2020 WL 2306565 (S.D.N.Y. May 8, 2020)......................35

Banks v. Booth, No. 1:20-CV-849, 2020 WL 3303006 (D.D.C. June 18, 2020) .........................33

Banks v. Booth, No. 1:20-CV-849, 2020 WL 1914896 (D.D.C. Apr. 19, 2020) .........................35

Basank v. Decker, No. 1:20-CV-2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) ...................25

Bell v. Wolfish, 441 U.S. 520 (1979)..........................................................................14, 15, 16, 17

BellSouth Telecomms, Inc. v. MCIMetro Access Transmission Svcs, LLC, 425 F.3d 964 (11th Cir. 2005) ............................................................................13

Brown v. Plata, 563 U.S. 493 (2011)............................................................................................17

Busby v. Bonner, No. 2:20-CV-2359, 2020 WL 3108713 (W.D. Tenn. Jun. 10, 2020) ..........28, 32

iii

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City of Los Angeles v. Lyons, 461 U.S. 95 (1983)..............................................................................................33
Estelle v. Gamble, 429 U.S. 97 (1976)........................................................................................17, 33
Farmer v. Brennan, 511 U.S. 825 (1994)..........................................................................17, 18, 19, 24
Farrow v. West, 320 F.3d 1235 (11th Cir. 2003) ..........................................................................19
Fraihat v. U.S. Immigration & Customs Enf’t, No. 5:19-CV-1546, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020)....... 30-31, 32
Goebert v. Lee Cnty., 510 F.3d 1312 (11th Cir. 2007) ..........................................................................18
Hale v. Tallapoosa Cnty., 50 F.3d 1579 (11th Cir. 1995) ......................................................................19, 21
Haskins v. City of Boaz, 822 F.2d 1014 (11th Cir. 1987) ..........................................................................27
Helling v. McKinney, 509 U.S. 25 (1993)..............................................................................................18
Hispanic Interest Coal. of Ala. v. Governor of Ala., 691 F.3d 1236 (11th Cir. 2012) ..........................................................................34
Jimenez v. Aristiguieta, 314 F.2d 649 (5th Cir. 1963) ..............................................................................28
Kingsley v. Hendrickson, 576 U.S. 389 (2015)......................................................................................15, 18
LaMarca v. Turner, 995 F.2d 1526 (11th Cir. 1993) ..........................................................................19
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Lonergan v. Fla. Dep’t of Corr., 623 F. App’x 990 (11th Cir. 2015) .....................................................................29
Magluta v. Samples, 375 F.3d 1269 (11th Cir. 2004) ..........................................................................15
Malam v. Adducci, No. 5:20-CV-10829, 2020 WL 1672662 (E.D. Mich. Apr. 5, 2020) .................27
Martinez-Brooks v. Easter, No. 3:20-CV-569, 2020 WL 2405350 (D. Conn. May 12, 2020) ........................4
McMillian v. Johnson, 88 F.3d 1554 (11th Cir. 1996) ......................................................................15, 17
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ..............................................................................34
Odebrecht Const., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268 (11th Cir. 2013) ..........................................................................34
Pierce v. District of Columbia, 128 F. Supp. 3d 250 (D.D.C. 2015)........................................................29, 30, 32
Pimentel-Estrada v. Barr, No. 2:20-CV-495, 2020 WL 2092430 (W.D. Wash. Apr. 28, 2020) .................25
Plata v. Brown, 427 F. Supp. 3d 1211 (N.D. Cal. 2013)..............................................................27
Preiser v. Rodriguez, 411 U.S. 475 (1973)............................................................................................27
R.W. v. Bd. of Regents of the Univ. Sys. of Ga., 114 F. Supp. 3d 1260 (N.D. Ga. 2015)...............................................................29
Reaves v. Dep’t of Correction, 404 F. Supp. 3d 520 (D. Mass. 2019).................................................................26
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Robenson v. Decker, No. 2:20-CV-5141, 2020 WL 2611544 (D.N.J. May 22, 2020) ........................35
Swain v. Junior, 961 F.3d 1276 (11th Cir. 2020) ....................................................................18, 19
Taylor v. Hughes, 920 F.3d 729 (11th Cir. 2019) ............................................................................24
Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020)......................25
Thomas v. Bryant, 614 F.3d 1288 (11th Cir. 2010) ..........................................................................20
Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497 (S.D. Tex. Apr. 17, 2020) ...................33
Walker v. City of Calhoun, 901 F.3d 1245 (11th Cir. 2018) ..........................................................................19
Wilson v. Gordon, 822 F.3d 934 (6th Cir. 2016) ..............................................................................33
Zaya v. Adducci, No. 5:20-CV-10921, 2020 WL 2487490 (E.D. Mich. May 14, 2020)...............35
STATUTES 28 U.S.C. § 2241......................................................................................................14 42 U.S.C. § 1983................................................................................................14, 26 42 U.S.C. § 12101....................................................................................................29 42 U.S.C. § 12102....................................................................................................28 42 U.S.C. § 12131..............................................................................................29, 30
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O.C.G.A. § 42-1-8....................................................................................................28 O.C.G.A. § 42-4-7....................................................................................................28 RULES AND REGULATIONS 28 C.F.R. § 35.102 ...................................................................................................29 28 C.F.R. § 35.104 .............................................................................................29, 30 28 C.F.R. § 35.108 ...................................................................................................28 28 C.F.R. § 35.130 .............................................................................................29, 30 OTHER AUTHORITIES Clayton Cty. Sheriff’s Office Advisory, May 30, 2020 ..........................................17 U.S. Ctrs. for Disease Control & Prevention, Considerations for
Wearing Cloth Face Coverings (Jun. 28, 2020).................................................24 U.S. Ctrs. for Disease Control & Prevention, Interim Considerations
for SARS-CoV-2 Testing in Correctional and Detention Facilities (July 7, 2020) ........................................................................................................6 U.S. Ctrs. for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020) .....................6, 21, 22, 23 U.S. Ctrs. for Disease Control & Prevention, People Who Are at Increased Risk for Severe Illness (June 25, 2020)................................................5
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INTRODUCTION Plaintiffs seek preliminary injunctive relief to prevent imminent irreparable harm—including death and permanent physical injury—from the spreading COVID-19 outbreak in the Clayton County Jail and Defendants’ failure to take reasonable steps to address the risks posed by the virus. The COVID-19 pandemic is a life-and-death crisis of a magnitude unlike anything in living memory. Because the crisis presents immediate and severe problems for jails and prisons, federal courts around the country have had to confront the pandemic’s unprecedented threat to incarcerated populations in order to preserve detainees’ fundamental rights under the Eighth and Fourteenth Amendments. The specific conditions at issue in each lawsuit necessarily must be assessed on a case-by-case basis, with remedies tailored to the particular facts. In the present case, the evidence shows that there is a significant outbreak of COVID19 at the Clayton County Jail, that the Jail’s conditions are egregiously deficient, and that Defendants are callously indifferent to protecting detainees from a deadly virus. Judicial intervention is essential to save lives. Despite the risks being evident for months, and an increasing number of positive cases in the Jail, Defendants have “taken little meaningful action to prevent the spread of COVID-19 and to protect the health and safety” of detainees.
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(Rottnek Decl. ¶ 13.)1 Indeed, Defendants are taking actions that increase the
likelihood that detainees and staff will become infected:
• Defendants have failed to identify and isolate infected persons, instead leaving them inside crowded cells where they spread the virus to others.
• Defendants have no functioning system to ensure that infected people receive prompt medical attention, and instead instruct sick people to submit a medical request, a process that delays medical intervention for up to a week.
• Defendants have placed healthy persons into cells with people who are experiencing fevers, vomiting, diarrhea, and other COVID-19 symptoms.
• Defendants failed to provide facemasks to most detainees for a full three months, instead instructing detainees—including elderly and medically vulnerable people—to use a towel, t-shirt, sock, or underwear as a makeshift facemask. There remains no system for replacing and cleaning masks, and not all detainees have been issued them.
• Defendants have failed to provide even minimally adequate hygiene and cleaning supplies, such that detainees resort to using scraps of toilet paper, socks, and their personal allotment of body soap to clean their cells. The Defendants severely restrict soap distribution, providing detainees with only a small amount of liquid soap per week for hand-washing, showering, and in-cell cleaning.
• Defendants have failed to identify detainees who are medically vulnerable and take necessary precautions to protect them against infection.
• Defendants assign healthy detainees to beds vacated by detainees
1 Plaintiffs submit the declarations of 12 present or former detainees and 3 experts: Nina Fefferman, Ph.D., an epidemiologist at the University of Tennessee, Knoxville; Fred Rottnek, M.D., a Professor of Medicine at Saint Louis University and the former Medical Director of the Saint Louis County Jail; and Emmitt L. Sparkman, a corrections consultant with more than 44 years of experience, including 11 years as Deputy Commissioner of Institutions for the Mississippi Department of Corrections.
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exhibiting symptoms of COVID-19 without making any effort to sanitize the cell or bed. • Defendants require detainees to line up a foot or two apart from one another during meal distribution, pill call, video court, and other activities. • Defendants failed to provide any education or information about COVID19 to detainees for a full three months of the pandemic, and to date have provided no information to detainees about COVID-19 symptoms, the Jail’s outbreak, or the importance of reporting symptoms to jail staff. • Defendants have made no discernable effort to reduce the Jail’s population, continuing to house three detainees in most of the Jail’s two-person cells. Defendant Victor Hill and his subordinates, who operate the Jail and boast publicly of its harsh conditions, exhibit deliberate indifference to the risks of COVID-19 despite a surge of positive cases in the Jail. Public health agencies report 72 infected detainees as of July 9, plus at least 13 infected staff members. (Ex. G, Attach. 2, 3, 4, 9.) Instead of responding reasonably to this threat to people in their custody, Defendants contend that no outbreak exists. (Ex. K.) Defendants ignore warnings from public health agencies about COVID-19’s heightened risk in jails and disregard basic precautionary steps such as social distancing, increased personal hygiene, sanitizing surfaces and cells, aggressive testing, and wearing personal protective equipment, such as clean masks. As a result of Defendants’ conduct, conditions in the Jail pose an “unnecessary risk” to detainees and the public. (Fefferman Decl. ¶¶ 9, 12-14.)
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To remedy Defendants’ inaction and the resulting risk of harm to detainees, Plaintiffs brought this action on behalf of themselves and two classes—the Principal Pretrial Class, and the Principal Post-Adjudication Class—encompassing all detainees confined in the Jail, seeking relief from unconstitutional conditions of confinement. (Doc. 1 ¶¶ 181-88; see id. ¶¶ 207-14.) In addition, Plaintiffs seek to represent (1) Medically Vulnerable Subclasses of detainees whose age or medical condition makes them especially vulnerable to the most severe consequences of COVID-19, and (2) Disability Subclasses of detainees whose disabilities make them especially vulnerable to the most severe consequences of COVID-19 and entitle them to the protections of the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA). (Id. ¶¶ 189-206; see id. ¶¶ 207-36.)
Plaintiffs now move for a preliminary injunction and writ of habeas corpus providing the relief set forth in the accompanying motion and proposed order, including a written plan to mitigate COVID-19 in the Jail and proper monitoring to ensure full implementation; preliminary steps toward releasing certain detainees, including identification of all members of the Medically Vulnerable and Disability Subclasses; and a plan for releasing medically vulnerable detainees.2 Without
2 See, e.g., Martinez-Brooks v. Easter, No. 3:20-CV-569, 2020 WL 2405350, at *3233 (D. Conn. May 12, 2020) (ordering prison officials to identify “medically
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preliminary injunctive relief, Plaintiffs will continue to be unnecessarily exposed to and infected by COVID-19 in violation of their constitutional and statutory rights. The Court should grant Plaintiffs’ motion.
FACTUAL BACKGROUND A. COVID-19 Presents a Substantial Risk of Severe Illness and Death
to People in Jails. COVID-19 is a highly contagious and deadly virus that presents an inherent risk in jails, which are “incubators for the virus.” (Rottnek Decl. ¶ 15.) In Georgia alone, COVID-19 has infected at least 80,000 people and killed more than 2,800. (Doc. 1 ¶ 85.) Those 55 and older or with underlying health conditions are most susceptible.3 COVID-19 spreads rapidly via “droplets in the air” and may also be transferred by “contaminated surfaces.” (Fefferman Decl. ¶ 18.) Strictly following CDC guidelines regarding COVID-19—including reducing the number of detainees in congregate environments, promoting hygiene, providing face masks, and disinfecting surfaces often—is the best way to “mitigate the risk of infection and serious illness.” (Rottnek Decl. 17-18; see also Sparkman Decl. ¶ 99.)
vulnerable inmates” and implement process to review them for home confinement). 3 U.S. Ctrs. for Disease Control & Prevention, People Who Are at Increased Risk for Severe Illness (June 25, 2020), https://bit.ly/3fVxXOb.
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Congregate conditions in jails “foster[] easy transmission of COVID-19 infection.” (Fefferman Decl. ¶ 19.) Daily staff ingress and egress as well as high population turnover also compound the risks of COVID-19 in jails, putting detainees, staff, and the public at “unnecessary risk.” (Id. at ¶¶ 9-14; see also Sparkman Decl. ¶¶ 21, 95-97.)
The CDC has published guidance for detention facilities, which includes common-sense steps they can take to mitigate the risk of infection, including promoting intensified cleaning, educating staff and detainees, providing cloth face coverings, ensuring adequate amounts of hygiene supplies, and practicing social distancing.4 CDC guidelines are considered an authoritative source by correctional administrators, and adherence to the guidelines is critical. (Sparkman Decl. ¶ 1924.) These measures, however, “are designed to manage and mitigate—not completely eliminate—the increased risk to jail populations.” (Rottnek Decl. ¶ 19.) Public health professionals widely agree that “[t]he best chance for medically vulnerable [detainees] to survive . . . is to release them.” (Id. ¶ 43.)
4 U.S. Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://bit.ly/2BX2gES (hereinafter, “CDC Interim Guidance”); see also U.S. Ctrs. for Disease Control & Prevention, Interim Considerations for SARSCoV-2 Testing in Correctional and Detention Facilities (Jul. 7, 2020), https://bit.ly/2WDAvZv.
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B. Defendants Have Failed to Take Reasonable Steps to Prevent and Mitigate COVID-19 Exposure in the Jail.
From the beginning of the pandemic, Defendants have been aware of the risks posed by COVID-19 and recommendations from public health experts about containing it.5 Defendants have largely ignored this clear guidance (Sparkman Decl. ¶¶ 24-96), allowing for significant spread of COVID-19 within the Jail (Fefferman Decl. ¶¶ 16, 31).
The Georgia Department of Public Health confirmed 32 COVID-19 infections among Clayton County Jail detainees as of June 11, and 72 infections as of July 10. (Ex. G, Attach. 2 & 9.) The Clayton County Sheriff’s Office nonetheless claims publicly that “[t]here is no outbreak of COVID-19 in our facility.” (Ex. K.) Consistent with this denial, Defendants have no apparent system to track the outbreak, and they regularly leave symptomatic people in overcrowded cells, where sick people infect others. (Fefferman Decl. ¶¶ 24-31; Sparkman Decl. ¶¶ 83-95; F.S. Decl. ¶¶ 23-27.) Many detainees “have not been tested for COVID-19 . . . even though [they] had symptoms.” (Singleton Decl. ¶
5 For example, on March 13, 2020—the same day the President declared a national emergency—internal affairs Captain Eddie Cross emailed all five Defendants warning that prevention measures were needed to slow the spread of the virus and that people with chronic medical conditions were at higher than normal risk of serious illness if infected. (Ex. E; see also Ex. J.)
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10.) Still others are refused medical care for even severe symptoms and are not
separated from other detainees. (W.M. Decl. ¶¶ 28-33; D.H. Decl. ¶¶ 13-25.)
Despite the spreading virus, people are directed to congregate in groups, with no
distancing, for pill call, meal distribution, video court, and in the medical unit.
(Sparkman Decl. ¶ 39-43.)
Numerous detainees have submitted declarations with this Court recounting
their experiences in a jail in which Defendants failed to take reasonable steps in
response to the known risks of the pandemic. (Ex. D.) The following are a few
examples showing Defendants’ unreasonable failure to act:
• W.L.M. is a 57-year-old man. (W.L.M. Decl. ¶ 2.) In May, he was placed in a small cell with a man experiencing fever, difficulty breathing, and diarrhea. (Id. ¶ 18.) The man was awaiting COVID-19 test results. (Id. ¶¶ 18-19.) W.L.M. had no mask. (Id.). Within days, W.L.M. had contracted COVID-19; he could not hold down food or water, had severe diarrhea, and “immense difficulty breathing.” (Id. ¶¶ 21-28.) He repeatedly informed staff about his symptoms and was tested but was not isolated. (Id.) On a night when he could not breathe, “felt as if [his] lungs were going to collapse,” and begged for help (id. ¶ 29), an officer told him to wait in his cell for six hours “until count,” at which time another officer told him to wait hours longer “until free time” to submit a medical request. (Id. ¶¶ 30-32.) He was never called to the medical unit.
• M.B. is a 52-year-old woman who recently underwent chemotherapy for cancer. (M.B. Decl. ¶¶ 2, 12.) In late May, M.B. asked an officer for a mask, but none was provided. (Id. ¶ 13.) M.B. tied a scrap of old, ripped underwear around her face as a makeshift mask. (Id.) She became ill but could not submit a request to see a medical provider because her electronic kiosk access was “on restriction.” (Id. ¶ 19.)
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• F.S. is a 27-year-old woman whose cellmate, C.H., experienced fever, vomiting, and coughing up blood in April. (F.S. Decl. ¶¶ 2, 23-24.) When F.S. sought help, an officer told C.H. to submit a medical request, but C.H. was too sick to walk. (Id. ¶ 24.) When F.S. herself developed a fever, chills, sore throat, headaches, and vomiting, officers left both women in their housing unit, where they continued to line up with other detainees during meal and medication distribution. (Id. ¶¶ 23-27.) After submitting a medical request, F.S. waited a week to be seen by medical staff. (Id. ¶¶ 25-26.) She was never tested for COVID-19. (Id. ¶ 27.) During her illness, she used a cut-up sheet as a mask. (Id. ¶ 21.)
• D.H. is a 28-year-old man who works as a trustee, or inmate worker, in the Jail. (D.H. Decl. ¶¶ 2-4.) When other trustees in D.H.’s dorm began displaying symptoms consistent with COVID-19, jail officers did not immediately remove them from the dorm and instructed them to continue working around the Jail. (Id. ¶¶ 13-15.) D.H. became sick with similar symptoms shortly thereafter. (Id. ¶ 20.) He reported his symptoms to a nurse but was sent back to his dorm. (Id. ¶ 23.) For the next two weeks, despite being weak and actively symptomatic, D.H. was instructed to wrap a towel around his face and continue distributing meal trays to detainees in other housing units. (Id. ¶ 24.) He later tested positive for COVID-19. (Id. ¶ 26.)
• Similarly, detainees Mitchell and J.H. each placed medical requests seeking attention for symptoms consistent with COVID-19 and either waited over a week before being seen by medical staff or were never seen at all. (Mitchell Decl. ¶¶ 13-16; J.H. Decl. ¶¶ 30-31.)
Although the CDC urges jails to educate detainees about the risks of
COVID-19, Defendants are not doing so. (Sparkman Decl. ¶ 70-75.) Detainees
consistently report that Defendants have made no effort to advise detainees about
coronavirus symptoms. (F.S. Decl. ¶ 19; A.W. Decl. ¶ 32; M.B. Decl. ¶ 16.)
Defendants similarly disregard CDC recommendations to implement intensified
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cleaning of the Jail.. (Sparkman Decl. ¶ 44-53.) The Jail’s communal “showers [are] covered in black mold and rarely cleaned.” (J.H. Decl. ¶ 13.) “Many people use the same telephones, showers, tables, and kiosks, without those items being sanitized between uses.” (Jones Decl. ¶ 10; see also Singleton Decl. ¶ 4 (same).) Also, the Jail remains at nearly 100% capacity, and many detainees sleep on the floor with their head “two feet from the toilet.” (F.S. Decl. ¶ 9.) Failing plumbing systems result in detainees sleeping where toilet water leaks onto the floor, soaking their bedding. (Watkins Decl. ¶ 20; Jones Decl. ¶ 6, 12; A.W. ¶ 10.).) Cells “smell of feces” (W.L.M. Decl. ¶ 11), have inoperable toilets (C.C. Decl. ¶ 17; A.W. Decl. ¶ 12), and are covered in mildew and mold. (A.W. Decl. ¶¶ 13-16.)
“Given the seriousness and prevalence of COVID-19, any jail administrator would understand the need for intensive sanitation measures during this time.” (Sparkman Decl. ¶ 44.) But the Jail has not taken any coordinated effort to intensify cleaning. (Sparkman Decl. ¶ 51; Watkins Decl. ¶ 22; see also W.L.M. Decl. ¶ 13.) Prisoners who want to clean their own living areas lack supplies, and resort to using bits of toilet paper, socks, and body soap for in-cell sanitation. (See, e.g., Sparkman Decl. ¶ 48; Jones Decl. ¶ 11.) While the provision of clean laundry is crucial to avoiding the spread of disease, laundering of personal items is not regular or timely at the Jail, and detainees often wait weeks or months before their
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jumpsuits, towels, or sheets are laundered. (Sparkman Decl. ¶ 62-64; Mitchell Decl. ¶¶ 10-11; W.L.M. Decl. ¶ 15; J.H. Decl. ¶ 20; Watkins Decl. ¶ 17-19.) Although the CDC recommends making liquid soap readily available, soap at the Jail is strictly rationed, even as disease spreads. (Sparkman Decl. ¶ 56-58.) Detainees are only allotted four ounces per week—equivalent to a motel-sized bar of soap—and there are weeks when none is available. (J.H. Decl. ¶ 19; Watkins Decl. ¶ 15; A.W. Decl. ¶ 17; F.S. Decl. ¶ 14.) Many detainees must use their weekly soap allotment for in-cell cleaning and laundry, in addition to personal hygiene. (Singleton Decl. ¶ 6; Watkins Decl. ¶ 15.)6
The CDC also recommends the use of masks to stop the virus’s spread, and “uniform mask use among detainees and staff would be an obvious and relatively inexpensive safeguard that any reasonable jail administrator would implement.” (Sparkman Decl. ¶ 65.) But until this litigation was filed, most non-trustee detainees had no jail-issued masks. (id. ¶ 67.) Detainees were instead told to use makeshift masks of spare towels, ripped-up underwear, and pieces of sheets—if they have any—which are often unlaundered and potentially contaminated. (Id.)
6 “At a jail where many people are testing positive for COVID-19 . . . any reasonable correctional administrator would know to modify the procedures, especially procedures pertaining to the rationing of soap.” (Sparkman Decl. ¶ 54.)
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Masks are not laundered, let alone laundered “routinely,” as recommended by the CDC. (Id. ¶ 66 (quoting CDC Interim Guidance).)
The CDC recommends jails promote social distancing and yet Defendants do just the opposite by compelling detainees every single day to line up one next to the other to obtain meals and medications, even packing “approximately twenty” people “side-by-side and back-to-back” for “video court.” (Watkins Decl. at ¶ 11; Singleton Decl. ¶ 4; J.H. Decl. ¶ 32; Sparkman Decl. ¶¶ 39-42.) Defendants also refuse to release detainees who are eligible for home confinement or early release (see Ex. F) and routinely incarcerate people unable to purchase their release by payment of small bail sums.
The Jail’s conditions are well known to each of the Defendants, all of whom have worked at the Jail for years and enter the Jail’s housing units regularly. In addition, multiple detainees have reported concerns about the Jail’s systematic failure to ensure sanitary conditions, provide timely medical care, issue face coverings and cleaning supplies, provide information about COVID-19, or screen for COVID-19. (Ex. I.) As detainee A.B. aptly noted in a grievance submitted on May 31, “the staff here [are] not taking this pandemic serious[ly].” (Ex. I.)
Defendants’ failures to implement reasonable measures to mitigate the danger of COVID-19 are “medically and epidemiologically unsupportable.”
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(Fefferman Decl. ¶¶ 22, 26, 30.) Further, they are contrary to “the standards on which reasonable correctional administrators would rely in addressing the pandemic.” (Sparkman Decl. ¶ 14.) These failures put all Plaintiffs—particularly those in the Medically Vulnerable and Disability Subclasses, who are “predispose[d] to severe COVID-19 outcomes”—at heightened and “unnecessary risk.” (Id. at ¶¶ 3, 12.) Named Plaintiffs are among those at an increased risk of death or severe, permanent injury. Plaintiff Jones is 58 years old with Chronic Obstructive Pulmonary Disorder. (Jones Decl. ¶¶ 2-3.) Plaintiff Watkins is a 60year-old diabetic. (Watkins Decl. ¶¶ 2-3.) And Plaintiff Singleton is a 59-year-old man with hypertension. (Singleton Decl. ¶¶ 2, 7.)7
LEGAL STANDARD A preliminary injunction should issue if the movants show: (1) a substantial likelihood of success on the merits; (2) irreparable harm absent an injunction; (3) a balance of harms in their favor; and (4) that the injunction would not be adverse to the public interest. BellSouth Telecomms, Inc. v. MCIMetro Access Transmission Svcs., LLC, 425 F.3d 964, 971 (11th Cir. 2005).
7 Plaintiff Randolph Mitchell has been released from the Jail. 13

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ARGUMENT I. Plaintiffs Are Likely to Prevail on the Merits.
Plaintiffs are likely to prevail on each of their claims for relief. First, the harmful conditions in the Jail fail to further any legitimate penological interest, amounting to unconstitutional punishment of pretrial detainees. Second, Defendants have been deliberately indifferent to the threat of COVID-19 by failing to take reasonable steps to mitigate the risk. Third, the continued detention of medically vulnerable detainees and detainees with disabilities constitutes unlawful confinement, requiring a writ of habeas corpus with respect to those detainees and release to protect their constitutional rights.8 Fourth, Defendants have unlawfully discriminated against detainees with disabilities who are at higher risk of serious illness or death from COVID-19.
A. Defendants Are Punishing Pretrial Plaintiffs in Violation of the Fourteenth Amendment Due Process Clause.
Because pretrial detainees have not been convicted of a crime, the Fourteenth Amendment Due Process Clause prohibits the government from punishing them. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Punishment occurs
8 As discussed below, Plaintiffs seek the release of medically vulnerable detainees and detainees with disabilities under two separate statutes: 28 U.S.C. § 2241 and 42 U.S.C. § 1983.
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“when a condition of pretrial detention is not reasonably related to a legitimate governmental goal,” such as when jail conditions are “excessive in relation to the legitimate purpose assigned to [them].” McMillian v. Johnson, 88 F.3d 1554, 1564 (11th Cir. 1996); see Magluta v. Samples, 375 F.3d 1269, 1274 (11th Cir. 2004) (holding complaint stated punishment claim where plaintiff alleged he was “confined under extremely harsh conditions . . . for no legitimate reason”). Although Bell refers to an impermissible “purpose of punishment,” Bell, 441 U.S. at 538, “Bell’s focus on ‘punishment’ does not mean that proof of intent (or motive) to punish is required for a pretrial detainee to prevail on a claim that his due process rights were violated.” Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015). Instead, Bell announced an “objective standard.” Id.
Here, Defendants’ failure to take minimally adequate steps to prevent COVID-19 infections lacks a connection to a “legitimate purpose.” As reflected in Plaintiffs’ evidence, the Clayton County Jail is operating in a manner that risks spreading infections among the thousands of detainees and staff cycling through the Jail, who then take the disease back to the community. Defendants permit the Jail’s living areas to become hubs for the virus’s spread, rarely if ever sanitizing the surfaces of tables, telephones, kiosks, showers, and toilets used by numerous detainees each day. (Sparkman Decl. ¶ 44-53.) Detainees lack basic supplies to
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clean cells—even cells housing sick detainees—and they resort to using toilet paper, clothing items, and body soap to wipe in-cell surfaces. (Id. 48-49.) Defendants strictly ration hand soap in the midst of a global pandemic and a large outbreak at their own facility. (Id. ¶ 54-61.) Detainees are required to congregate for meal distribution, pill call, and sick call, and are not consistently issued functional face coverings to limit person-to-person spread of disease. And detainees who report symptoms consistent with COVID-19 are often ignored. (W.L.M. Decl. ¶ 29 (“[I]t felt as if my lungs were going to collapse. I could not breathe. I began to bang on my cell door . . . no one was coming to help.”); M.B. Decl. ¶ 18 (“My chest feels tight and my body aches. I am having chills, I feel sweaty, and I am having shortness of breath . . . But I have not been able to see anyone on the medical staff”).)
Jail officials’ “arbitrary and purposeless” decision to disregard experts’ guidance and ignore reasonable steps to protect detainees is disconnected from any legitimate governmental interest and undermines the government’s compelling interest in controlling the pandemic. Bell, 441 U.S. at 520. It cannot be justified by cost savings. Certain steps—such as releasing eligible detainees, educating detainees remaining in the Jail, and providing prompt medical attention to symptomatic detainees—would involve little if any financial cost. Other measures
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would involve only modest expenditures that likely would be offset by reducing the costs of caring for detainees who become ill. At minimum, Defendants’ inaction is “excessive in relation to” any interest in limiting financial outlays. See McMillian, 88 F.3d at 1564.
Indeed, Defendants’ practices most plausibly project their desire to operate the facility as “Georgia’s toughest para-military jail,”9 and thus appear calculated to achieve retribution and deterrence, which “are not legitimate nonpunitive governmental objectives” with respect to pretrial detainees. See Bell, 441 U.S. at 539 n.20. Accordingly, Plaintiffs have a substantial likelihood of showing that, with respect to pretrial detainees, the Jail’s conditions of confinement serve no “legitimate governmental purpose” and violate the Due Process Clause.
B. Defendants Are Deliberately Indifferent to Plaintiffs’ Constitutional Rights.
Governments have a constitutional duty to protect detainees from “a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). This right arises under the Eighth Amendment after conviction. See Brown v. Plata, 563 U.S. 493, 510 (2011); Estelle v. Gamble, 429 U.S. 97, 104 (1976). A fortiori, an Eighth Amendment violation also violates the rights of pretrial
9 See, e.g., Clayton Cty. Sheriff’s Office Advisory, May 30, 2020, https://local.nixle.com/alert/8024208.
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detainees under the Fourteenth Amendment’s Due Process Clause. See Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007).
To succeed on a claim of deliberate indifference, plaintiffs must show (1) a deprivation that is serious, and (2) that prison officials acted with deliberate indifference. See Farmer, 511 U.S. at 834.10
1. The COVID-19 Pandemic Poses an Objective Risk of Serious Harm.
Plaintiffs and other Clayton County Jail detainees face an objective risk of serious harm from COVID-19. A “condition of confinement that is sure or very likely to cause serious illness and needless suffering” to someone detained, which includes “exposure of inmates to a serious, communicable disease,” is precisely the type of serious harm against which the Constitution protects. Helling v. McKinney, 509 U.S. 25, 33 (1993).
COVID-19 is a serious, communicable disease that poses a threat to all detainees, especially those who are medically vulnerable. (See, e.g., Fefferman Decl. ¶¶ 9-10; Rottnek Decl. ¶¶ 25-27, 43-44.) Thus, courts have recognized that COVID-19 poses an objective risk of serious harm. See, e.g., Swain v. Junior, 961
10 Plaintiffs preserve the argument that pretrial detainees need only make an objective showing under the deliberate indifference standard. See Kingsley, 135 S. Ct. at 2473-74. Plaintiffs acknowledge that the Eleventh Circuit has taken a contrary view. See Swain v. Junior, 961 F.3d 1276, 1285 n.4 (11th Cir. 2020).
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F.3d 1276, 1285 (11th Cir. 2020). Dozens of Clayton County Jail detainees have been infected with COVID-19 over the past four months, and the virus is still spreading through the Jail. The conditions in the Jail thus pose an objectively serious risk of harm.
2. Defendants Have Been Deliberately Indifferent. Jailers are deliberately indifferent when they have “subjective awareness of an ‘objectively serious need’” and their response is “objectively insufficient.” See Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). A response is objectively insufficient where a jailer fails “to take reasonable measures to abate” the known risk of harm. Farmer, 511 U.S. at 847. In that regard, a jailer may be liable “for disregarding ‘alternative means’ or interim measures for reducing the risk” despite taking minimal responsive action. Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1584 (11th Cir. 1995). Where, as here, jailers are sued in their official capacities, a court may consider “the institution’s historical indifference” to address the risk of harm. See LaMarca v. Turner, 995 F.2d 1526, 1542 (11th Cir. 1993).11 A history of constitutional violations permits courts “to conclude that future violations of the
11 Cf. Walker v. City of Calhoun, 901 F.3d 1245, 1270 (11th Cir. 2018) (“[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case.” (quoting Flanigan’s Enters., Inc. v. City of Sandy Springs, 868 F.3d 1248, 1255 (11th Cir. 2017) (en banc)).
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same kind are likely.” Thomas v. Bryant, 614 F.3d 1288, 1318 (11th Cir. 2010) (quoting Kapps v. Wing, 404 F.3d 105, 123 (2d Cir. 2005)).
Defendants are unquestionably aware of the life-threatening risks presented by COVID-19. Government orders, public health guidance, and extensive news coverage have repeatedly emphasized the risks of COVID-19 to incarcerated people, as well as the heightened risk to the medically vulnerable. (See, e.g., Doc. 1 ¶¶ 97-98, 100 (citing public records concerning risks of COVID-19 and prevention measures).) Preventative measures like social distancing, the use of masks, and proper hygiene have been widely publicized. (See Doc. 1 ¶ 97.) The Jail’s own records establish that written announcements and advice from multiple public health authorities were distributed to Defendants. (Ex. E; Ex. J.) Defendants are likewise aware of the living conditions in the Jail, as the conditions are obviously deficient and each Defendant is a senior official who has been involved in operating the Jail for years.
Nevertheless, Defendants have ignored public health guidance and failed to adopt measures that any reasonable correctional administrator would adopt in addressing the pandemic. (Sparkman Decl. ¶¶ 14, 26-96.) Instead of taking steps to reduce the Jail’s population (see Ex. F), Defendants have continued to operate the Jail at capacity, with most detainees housed three to a cell (see Ex. D).
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Defendants have consistently failed to take reasonable steps to prevent and mitigate COVID-19 infections. Rather, they have declared there is no outbreak of COVID-19 in the Jail even though infections among detainees more than doubled between June 11 and July 9. Defendants continue to operate the Jail in a reckless manner. See Hale, 50 F.3d at 1579 (holding “atmosphere of deliberate indifference” at jail supported finding that defendant was liable).
Defendants’ practices are so inherently risky and likely to spread COVID-19 that deliberate indifference is the only explanation for them. It is objectively unreasonable to place a healthy detainee in a cell with a symptomatic, infected person, yet Defendants do so.12 (See, e.g., Watkins Decl. ¶¶ 37-40; F.S. Decl. ¶¶ 23-27; J.H. Decl. ¶¶ 29-30.) Defendants’ officers have also failed to isolate infected people, leading them to further spread the virus.13 (See, e.g., W.L.M. Decl. ¶¶ 18-21; Watkins Decl. ¶¶ 37-40; F.S. Decl. ¶¶ 23-27; J.H. Decl. ¶¶ 29-30.) Even when jailers remove symptomatic detainees from housing units, the cells are not sanitized before another detainee is assigned, and the cellmates of sick people
12 The reasonable response when people display COVID-19 symptoms is to “immediately” place them “under medical isolation.” CDC Interim Guidance, https://bit.ly/2BX2gES. 13 Those who have been in close contact with a known COVID-19 case must promptly be quarantined. CDC Interim Guidance, https://bit.ly/2BX2gES.
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are not tested for COVID-19. (See, e.g., A.W. Decl. ¶¶ 40-41; D.H. Decl. ¶¶ 1618.)14 And Defendants place new admittees into general population without testing to ensure they do not have COVID-19. (See, e.g., W.L.M. Decl. ¶ 4; R.L. Decl. ¶¶ 9-12; Singleton Decl. ¶ 9.)
One critical way of preventing the spread of a contagious disease is by “implementing intensified cleaning and disinfecting procedures” to limit transmission of the virus through contaminated surfaces.15 Such measures are especially important in a jail, where dozens of detainees are forced to share the same telephones, showers, tables, and kiosks. (See, e.g., Jones Decl. ¶ 10.) Nonetheless, Defendants continue to clean the common areas only “rarely” and fail to sanitize objects and surfaces between uses. (See, e.g., Watkins Decl. ¶ 25; Jones Decl. ¶ 10; Mitchell Decl. ¶ 6; Singleton Decl. ¶¶ 4, 6.) Similarly, Defendants fail to provide detainees with chemicals necessary to sanitize their cells—issuing only a broom and dirty mop water most days—despite multiple complaints from
14 When detainees complain of COVID-19 symptoms, jailers instead tell detainees to place a sick-call request on the kiosk, after which detainees wait several days to be seen by medical staff members, if they are seen at all. (See, e.g., J.H. Decl. ¶¶ 30.) In the meantime, they remain in their assigned housing units with others, potentially spreading the disease. (See, e.g., Watkins Decl. ¶¶ 37-40; J.H. Decl. ¶¶ 30-32; F.S. Decl. ¶¶ 23-27.) 15 CDC Interim Guidance, https://bit.ly/2BX2gES.
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detainees about the lack of supplies. (See, e.g., Watkins Decl. ¶¶ 23-24; Jones Decl. ¶ 11; Mitchell Decl. ¶¶ 9-10; Singleton Decl. ¶¶ 3, 6; J.H. Decl. ¶ 9.)
Another reasonable way of reducing the spread of the virus is to educate detainees about the virus’s symptoms and the importance of good hygiene, and by issuing adequate supplies of soap for detainees to wash their hands frequently.16 But Defendants have given detainees no information regarding COVID-19 symptoms (see, e.g., Watkins Decl. ¶ 32; Jones Decl. ¶ 4; Mitchell Decl. ¶ 22; Singleton Decl. ¶ 11; J.H. Decl. ¶ 25), and detainees continue to receive, at most, the same fourounce weekly allotment of soap that Defendants provided before the pandemic (see, e.g., Watkins Decl. ¶ 15 (“Four ounces does not last any of us for the whole week.”).17
Defendants have also failed to implement social distancing. They continue to require large groups of detainees to congregate during meal distribution, pill distribution, visits to the medical unit, and “video court” hearings, significantly
16 CDC Interim Guidance, https://bit.ly/2BX2gES. (Sparkman Decl. ¶ 70-75.) 17 “The amount of soap provided at the Clayton County Jail is woefully inadequate to ensure the kind of frequent hand washing needed to stop the spread of a contagious illness. If a person runs out of soap, more should be provided, and it should be provided immediately. This is not a time to maintain strict adherence to existing procedures about soap quantity. Soap, paper towels, and other hygiene items should be readily available upon request for detainees.” (Sparkman Decl. ¶ 58.)
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increasing the risk of contagion. (See, e.g., Watkins Decl. ¶¶ 13, 14, 26-27; A.W. Decl. ¶¶ 23-24; J.H. Decl. ¶ 32; R.L. Decl. ¶ 11.)
Until recently, Defendants had not issued most detainees facial coverings, “a critical preventive measure.”18 Before this, only “inmate workers” were issued masks; all other detainees resorted to placing random clothing items like underwear or towels over their faces. (See, e.g., Watkins Decl. ¶ 35; Jones Decl. ¶ 14; Mitchell Decl. ¶¶ 19-20; Singleton Decl. ¶¶ 4, 8.) Though Defendants may have recently issued masks to more detainees, it appears Defendants have still not issued every detainee a mask, and Defendants have not provided a way for those with masks to clean or replace them regularly. (See, e.g., Watkins Decl. ¶ 36 (noting in late June that he had been given a surgical mask at the end of May that had “not been cleaned or replaced” in the intervening three weeks).)
In sum, Defendants have failed to take “reasonable measures to abate” the serious harm of COVID-19. Farmer, 511 U.S. at 837.19 The Clayton County Jail
18 U.S. Ctrs. for Disease Control & Prevention, Considerations for Wearing Cloth Face Coverings (Jun. 28, 2020), https://bit.ly/32cUxh6. 19 Defendants’ response to date is so perfunctory that “even a lay person would easily recognize” the need for corrective action. See Taylor v. Hughes, 920 F.3d 729, 733 (11th Cir. 2019) (citation omitted), remanded, No. 2:14-CV-1163, 2019 WL 5756057 (M.D. Ala. Nov. 4, 2019), appeal filed, (11th Cir. Dec. 5, 2019). Many detainees have expressed concerns about the Jail’s deficient prevention measures
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is “not equipped to protect [detainees] from a potentially fatal exposure to COVID19,” and leaving Defendants’ practices unchecked would invite “an unconscionable and possibly barbaric result.” Basank v. Decker, 1:20-CV-2518, 2020 WL 1481503, at *5 (S.D.N.Y. Mar. 26, 2020) (holding that several COVID19 measures were “patently insufficient to protect [detainees]” where social distancing was not enforced); Pimentel-Estrada v. Barr, No. 2:20-CV-495, 2020 WL 2092430, at *16 (W.D. Wash. Apr. 28, 2020) (finding likelihood of deliberate indifference despite Defendants making numerous changes in response to the pandemic due to failure to reduce population, establish social distancing protocol, and implement widespread testing). Cf. Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *8-9 (M.D. Pa. Mar. 31, 2020) (ordering release of detainees housed with communal eating and sleeping space and bunks “often less than two feet apart”), appeal docketed, No. 20-1906 (3d Cir. Apr. 28, 2020).
By failing to take even rudimentary, let alone reasonable, steps necessary to
through the Jail’s grievance system. For example, detainee C.S. complained on May 22 that he had not been given information regarding COVID-19. (Ex. I.) Detainee B.T. complained on May 16 that there was “no proper social distancing.” (Id.) Multiple detainees have complained of being unable to obtain masks and cleaning supplies. (Id.) Several specifically referenced the Jail’s failure to follow guidelines for preventing and mitigating COVID-19, and a number complained of being in fear for their lives. (Id.) One detainee, Q.T., complained on May 19 that he had been tested for COVID-19, was returned to his dorm, and learned two weeks later that his test was positive. (Id.)
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address the virus, Defendants are recklessly exposing the Jail’s detainees to a potentially lethal or permanently debilitating disease. The Eighth and Fourteenth Amendments prohibit this.
C. The Medically Vulnerable and Disability Subclasses Are Likely to Prevail on Their Habeas Claim.
The Medically Vulnerable and Disability Subclasses are likely to prevail on their § 2241 claims, which are based on the same violations of federal law underlying Plaintiffs’ § 1983, Americans with Disabilities Act, and Rehabilitation Act claims. “If medically vulnerable detainees are not released as soon as possible,” they are at risk of “infection,” “long-lasting and permanent organ damage,” and “death.” (Rottnek Decl. ¶ 43.)
1. COVID-19 Makes Confinement Unlawful for the Medically Vulnerable and Disability Subclasses.
Members of the Medically Vulnerable and Disability Subclasses challenge the fact of their confinement, which by its very nature poses an unacceptably high risk of COVID-19 infection, long-term harm, and death. (Rottnek Decl. ¶ 43.) Given that “[t]here is no effective way to eliminate risk for medically vulnerable detainees in the jail” (id. ¶ 49), no conditions of confinement can protect these subclasses.20
20 Plaintiffs pleaded this action as both a habeas petition and a civil action pursuant to 42 U.S.C. § 1983. (See Doc. 1 ⁋⁋ 24, 214.) Even if this Court concludes that it
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As the Supreme Court explained, when the very fact of imprisonment is challenged as unlawful, a detainee’s proper remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Therefore, where release is the only adequate remedy for a violation of federal rights, habeas relief is appropriate. See Haskins v. City of Boaz, 822 F.2d 1014, 1015 (11th Cir. 1987) (“When federal rights are violated, ‘it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief’” (quoting Bell v. Hood, 327 U.S. 678, 684 (1946))).
Members of the Disability and Medically Vulnerable Subclasses’ only adequate remedy is release, because the Jail is incapable of providing them with adequate care and protection from infection. (Rottnek Decl. ¶ 49.) “[E]ven the most stringent precautionary measures—short of limiting the detained population itself— simply cannot protect detainees from the extremely high risk of contracting this unique and deadly disease.” Malam v. Adducci, 5:20-CV-10829, 2020 WL 1672662, at *8 (E.D. Mich. Apr. 5, 2020). Accordingly, those who are medically vulnerable “should be evaluated for release” (Fefferman Decl. ¶ 10), because absent release,
lacks habeas jurisdiction, it has the power to order release or transfer of detainees in a § 1983 action. See, e.g., Reaves v. Dep’t of Correction, 404 F. Supp. 3d 520, 52225 (D. Mass. 2019) (ordering transfer of prisoner with quadriplegia to outside treatment facility); Plata v. Brown, 427 F.Supp.3d 1211, 1222-24 (N.D. Cal. 2013) (ordering transfer of medically vulnerable prisoners due to risk of disease).
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they “are at risk of infection . . . and even death” (Rottnek Decl. ¶ 43). “There is no effective way to eliminate risk for medically vulnerable detainees” and “[t]he best chance for medically vulnerable detainees to survive the pandemic is to release them from the jail so they can practice social distancing.” (Rottnek Decl. ¶ 49 (emphasis added).)
2. Habeas Relief May Take the Form of Release or Transfer. As an alternative to release, the Medically Vulnerable and Disability Subclasses require enlargement of their detention in the form of home confinement or transfer to facilities with adequate social distancing, sanitation practices, and other conditions sufficient to protect them from COVID-19, which Defendants have authority to grant. See, e.g., O.C.G.A. §§ 42-4-7(b), 42-1-8; see also, e.g., Busby v. Bonner, 2:20-CV-2359, 2020 WL 3108713, at *3 (W.D. Tenn. June 10, 2020) (enlargement claims may be brought under § 2241); Jimenez v. Aristiguieta, 314 F.2d 649, 652 (5th Cir. 1963) (“The District Court [has] inherent power as the habeas corpus court or judge to enter [an] order . . . respecting the custody or enlargement of [the petitioner]”). D. The Disability Subclasses Are Likely to Prevail on Their Claim
That Defendants Are Violating the ADA and the RA. Members of the Disability Subclasses are protected persons with disabilities under Title II of the ADA and § 504 of the RA. 42 U.S.C. § 12102(1)(A), (2)(B),
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28 C.F.R. § 35.108(d)(2)(iii). By virtue of their detainee status, they are entitled to equal access to the programs and services of the Jail, a public entity. 42 U.S.C. § 12131(2); 28 CFR § 35.104; Lonergan v. Fla. Dep’t of Corr., 623 F. App’x 990, 992 (11th Cir. 2015).
Title II of the ADA addresses “failure to make modifications to existing facilities and practices.” 42 U.S.C. § 12101(a)(5). Public entities lack “the option of being passive in their approach to disabled individuals as far as the provision of accommodations is concerned.” Pierce v. District of Columbia, 128 F. Supp. 3d 250, 269 (D.D.C. 2015); see also R.W. v. Bd. of Regents of the Univ. Sys. of Ga., 114 F. Supp. 3d 1260, 1282 (N.D. Ga. 2015) (recognizing proof of intentional discrimination is unnecessary in ADA case seeking injunctive relief). Similarly, the RA requires public entities that receive federal funding to grant individuals with disabilities access by making “reasonable accommodations,” whether or not exclusion was intentional. Alexander v. Choate, 469 U.S. 287, 301 (1985).
The ADA and the RA require public entities to take affirmative steps and make reasonable modifications to their policies, practices and procedures to ensure the disabled have access to programs and services for which they would otherwise be qualified. 28 C.F.R. §§ 35.102(a), 35.130(a), (b); Alexander, 469 U.S. at 295 (the RA entitles qualified disabled individuals to “meaningful access to the benefit
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that the grantee offers” through “reasonable accommodations”); Lonergan, 623 F. App’x at 992 (Title II claims “may proceed on the theory that Defendant failed to reasonably accommodate the Plaintiff’s disability”). The ADA expressly prohibits public entities from “utiliz[ing] criteria or methods of administration . . . [t]hat have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability” or “have the . . . effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.” 28 C.F.R. § 35.130(b)(3)(i)-(ii) (emphasis added). The duty of a public entity to provide meaningful affirmative accommodations is at its apex when that entity is a jail, due to the “complete control [it has] over whether . . . inmates (disabled or not) receive any programs or services at all.” Pierce, 128 F. Supp. 3d at 269.
Programs and services in detention include the safe adjudication of pretrial detainees’ pending criminal cases, as well as adequate living conditions and access to medical care for all detainees. Keeping detainees alive and healthy to conclude their criminal proceedings and serve any sentences imposed are important components of a jail’s program. See generally 42 U.S.C. § 12131(2); 28 C.F.R. § 35.104. If members of the Disability Subclasses experience long-term illness or death from COVID-19, they will have been denied equal access to safe
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adjudication of their cases, and thus will have suffered discrimination. See Fraihat v. U.S. Immigration & Customs Enf’t, No. 5:19-CV-1546, 2020 WL 1932570, at *26 (C.D. Cal. Apr. 20, 2020) (holding people with disabilities in ICE detention entitled to reasonable accommodations in order to participate in the removal process). Disabled detainees also face discrimination in the form of unequal access to the Jail’s programs: they are facing impossible choices between accessing essential medical care and risking potentially-deadly exposure to COVID, or foregoing medical care to limit their exposure to the virus.
Defendants’ practices potentially exclude the Disability Subclasses from equal access to the Jail’s services and access to courts, because of the heightened risk that COVID-19 poses to them. All of the Jail’s services require being in close quarters with other detainees, posing a disproportionate risk of severe illness and death for the Disability Subclass. (See, e.g., J.H. Decl. ¶¶ 31-32.) Defendants nonetheless fail to provide essential basic resources, including hygiene products, protective equipment, and social distancing, necessary for Disability Subclass members to protect themselves from COVID-19 while engaging in these activities. For example, Plaintiff Rhonda Jones is disabled as a result of chronic obstructive pulmonary disease, has been hospitalized twice for pneumonia in recent months, and must access the Jail’s medical care program to manage her illness. (Jones
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Decl. ¶¶ 3, 9.) But she can only participate in that program if she waits in a crowded cage in the Jail’s medical unit, potentially exposing her to a virus that poses an acute threat to her health precisely because her disability makes her susceptible to serious illness or death. (Id. ¶¶ 9, 22.) The Jail has made no accommodations for Jones or other members of the Disability Subclasses to reduce their risk of exposure to the virus, meaning that these detainees are potentially excluded from Jail services. See Pierce, 128 F. Supp. 3d. at 273 (ADA and RA violations where deaf prisoners were excluded from prison substance abuse and anger management programs because no interpreter was provided).
Defendants have disregarded their affirmative obligation under the ADA and RA to address these dangers for the Disability Subclasses. The accommodations the Disability Subclasses require to address the harms they face—implementation of CDC guidelines to mitigate COVID-19 exposure and a process to facilitate the release of medically vulnerable detainees for whom mitigation will be insufficient—are reasonable and necessary. See Fraihat, 2020 WL 1932570, at *29 (directing ICE to take mitigation measures in its detention facility, including timely release determinations, for detainees with risk factors); Busby, 2020 WL 3108713, at *9-10 (discussing plaintiffs’ disabilities identified by the CDC as heightened COVID-19 risk factors).
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II. Without Injunctive Relief, Plaintiffs Will Be Irreparably Harmed. “The deliberate indifference to serious medical needs of prisoners constitutes
the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v. Gamble, l429 U.S. 97, 104 (1976) (citation omitted). As does a “heightened risk of dying or suffering from serious illness and long-term health consequences” and “bodily injury and loss of life.” City of Los Angeles v. Lyons, 461 U.S. 95, 98 (1983). “The risk of permanent harm to Plaintiffs applies with greater force to the medically vulnerable . . . , for whom continued detention is even more likely to cause injury and death.” Wilson v. Gordon, 822 F.3d 934, 958 (6th Cir. 2016).
The dangers and lethality of COVID-19 are indisputable, and the risks to the Plaintiff classes of permanent physical injury or death are “prototypical irreparable harm.” Banks v. Booth, 1:20-CV-849, 2020 WL 3303006, at *16 (D.D.C. June 18, 2020); Vazquez Barrera v. Wolf, 4:20-CV-1241, 2020 WL 1904497, at *6 (S.D. Tex. Apr. 17, 2020) (holding that the long-term health consequences of COVID-19 are irreparable harm). Plaintiffs thus meet the irreparable harm requirement. III. The Public Interest and Balance of Equities Favor Plaintiffs.
An injunction halting unconstitutional actions and unlawful discrimination against people with disabilities during a global pandemic disproportionately
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affecting people in jails outweighs any harm to Defendants and is in the public interest. Injunctive relief is appropriate if the harm to plaintiffs in the absence of an injunction “would exceed the harm suffered by the State if the injunction is issued, and [the] injunction would not disserve the public interest.” Odebrecht Const., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1287 (11th Cir. 2013). “‘[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (citation omitted); see also Hispanic Interest Coal. of Ala. v. Governor of Ala., 691 F.3d 1236, 1249 (11th Cir. 2012) (recognizing that a state “has no interest in enforcing a state law that is unconstitutional”).
Although ordering Defendants to take steps to prevent and mitigate COVID19 will entail some expenditures, any financial harm to Defendants does not outweigh the risk of severe illness, permanent organ damage, or death Plaintiffs face. Courts regularly find that the balance tips in favor of plaintiffs when detainees’ health is at risk. See, e.g., Ancata v. Prison Health Servs. Inc., 769 F.2d 700, 705 (11th Cir. 1985) (“Lack of funds . . . cannot justify an unconstitutional lack of competent medical care”). Moreover, steps to control COVID-19 in the Jail will serve the public interest in controlling the pandemic by reducing the risk that an former detainee or staff member will carry the virus to the community.
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(See Fefferman Decl. ¶¶ 9, 12-14 (noting Jail poses “unnecessary risk” to the “broader community”).)
Similarly, release or enlargement is in the public interest because it “preserve[s] critical medical resources and prevent[s] further stress on the states’ and country’s already overburdened healthcare system.” Robenson v. Decker, No. 2:20-CV-5141, 2020 WL 2611544, at *9 (D.N.J. May 22, 2020); see Arias v. Decker, No. 1:20-CV-2802, 2020 WL 2306565, at *11 (S.D.N.Y. May 8, 2020) (same), appeal docketed, No. 20-2139 (2d Cir. Jul. 7, 2020); Alcantara v. Archambeault, No. 3:20-CV-756, 2020 WL 2315777, at *10 (S.D. Cal. May 1, 2020) (same); Zaya v. Adducci, No. 5:20-CV-10921, 2020 WL 2487490, at *9 (E.D. Mich. May 14, 2020) (same), appeal docketed, No. 10-1667 (6th Cir. Jul. 14, 2020).
Finally, an injunction also serves the public interest because it will benefit the public health by mitigating COVID-19’s spread in the community. See Banks v. Booth, No. 1:20-CV-849, 2020 WL 1914896, at *12 (D.D.C. Apr. 19, 2020) (“[I]njunctive relief . . . is in the public interest because it supports public health.”).
CONCLUSION The Court should grant a preliminary injunction and writ of habeas corpus.
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Respectfully submitted,

Kosha S. Tucker Ga. Bar No. 214335 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA P.O. Box 77208 Atlanta, GA 30357 (678) 981-5295 ktucker@acluga.org
Stephen L. Pevar AMERICAN CIVIL LIBERTIES UNION FOUNDATION 765 Asylum Avenue Hartford, Connecticut 06105 (860) 570-9830 spevar@aclu.org
David C. Fathi AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 Fifteenth Street, N.W., Seventh Floor Washington, DC 20005 (202) 548-6603 dfathi@aclu.org

/s/ Jeremy Cutting Sarah Geraghty Ga. Bar No. 291393 Jeremy Cutting Ga. Bar No. 947729 SOUTHERN CENTER FOR HUMAN RIGHTS 60 Walton Street, N.W. Atlanta, GA 30303 (404) 688-1202 sgeraghty@schr.org
Brandon Buskey Robert W. Hunter AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004 (212) 284-7364 bbuskey@aclu.org

July 27, 2020

Counsel for Plaintiffs

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CERTIFICATE OF COMPLIANCE Pursuant to N.D. Ga. Local Civil Rule 7.1(D), I hereby certify that the foregoing has been prepared in compliance with N.D. Ga. Local Civil Rule 5.1(C) in Times New Roman 14-point typeface.
/s/ Jeremy Cutting July 27, 2020

Case 1:20-cv-02791-ELR-CCB Document 19-2 Filed 07/27/20 Page 1 of 47
EXHIBIT A
Declaration of Nina H. Fefferman, Ph.D

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RHONDA JONES et al., Plaintiffs,
v. VICTOR HILL et al.,
Defendants.

CIVIL ACTION NO. 1:20-CV-2791-ELR-CCB

DECLARATION OF NINA H. FEFFERMAN 1. I, Nina Fefferman, being competent to make this declaration and having personal knowledge of the matters stated herein, declare under penalty of perjury that the following is true and correct: 2. I am over 21 years of age. The statements contained in this declaration are based on my personal knowledge, or on information that experts in the field of infectious disease epidemiology would reasonably rely on in forming an opinion, and are true and correct to the best of my knowledge. I. Expert Qualifications 3. I am a full Professor at the University of Tennessee, Knoxville in both the Department of Ecology and Evolutionary Biology and the Department of
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Mathematics. I am also the Director of the Mathematical Modeling Consulting Center at the National Institute for Mathematical and Biological Synthesis, and the Associate Director of the University of Tennessee One Health Initiative. My research focuses on complex adaptive systems, with a focus on the interplay between individual behavior and infectious disease epidemiology.
4. I have worked for the past 16 years as a researcher of the epidemiology, ecology, and evolution of infectious disease, pandemic preparedness, national biosecurity, and infrastructure protection. I hold a Master’s degree in mathematics from Rutgers University and a PhD in Biology from Tufts University.
5. For over a decade, I was one of the primary researchers of the Command, Control, and Interoperability Center for Advanced Data Analytics, a U.S. Department of Homeland Security (“DHS”) Center of Excellence, where I ran a research group focusing on the mathematics of both biosecurity and cybersecurity. As part of my role in that center, I contributed models and policy recommendations to DHS and its affiliate agencies for how to manage and mitigate pandemic threats from H1N1 2009 flu, Ebola in West Africa, and Zika virus. I have also consulted for various additional state and federal agencies and private companies, domestically and abroad, in the area of outbreak management since 2004.
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6. My C.V., attached as Exhibit A, includes a full list of my honors, experience, and publications.
7. I am not being compensated for my work reviewing materials and preparing this report. Any live testimony I provide will also be provided pro bono.
8. I have reviewed and relied upon the following documents in forming the opinions set forth below:
a. Report by the Georgia Department of Community Affairs listing the Clayton County Jail capacity and population (dated June 2020);
b. Documents from the Georgia Department of Public Health regarding the nature and scope of the COVID-19 outbreak at the Clayton County Jail (dated June 11, 2020 and July 9, 2020);
c. Declarations by current and former Clayton County Jail detainees, including the following: i. Declaration of Barry Watkins, dated June 21, 2020; ii. Declaration of Randolph Mitchell, dated June 21, 2020; iii. Declaration of Rhonda Jones, dated June 21, 2020; iv. Declaration of Michael Singleton, dated June 24, 2020; v. Declaration of C.C., dated June 25, 2020; vi. Declaration of J.H., dated June 25, 2020.
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vii. Declaration of M.B., dated June 3, 2020;
viii. Declaration of F.S., dated June 18, 2020;
ix. Declaration of A.W., dated June 21, 2020;
x. Declaration of W.L.M., dated July 7, 2020;
xi. Declaration of D.H., dated July 14, 2020.
d. Other Documents
i. Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), available at https://www.cdc.gov/coronavirus/2019ncov/downloads/guidance-correctional-detention.pdf.
ii. Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (July 22, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctionaldetention.html.
iii. Centers for Disease Control and Prevention, Interim Considerations for SARS-CoV-2 Testing in Correctional and Detention Facilities (July 7, 2020) https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/testing.html.
iv. Robert Weidner & Jennifer Schultz, Examining the Relationship Between US Incarceration Rates and Population Health at the County Level, 13 SSM Pop. Health 1 (2019).
v. Susan Kelley, Study: Nearly Half of Americans Have Had a Family Member Jailed, Imprisoned, 47 Hum. Ecology 15 (2019).
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vi. Hugh Lester & Martin Miller, Discrete Event Simulation of Jail Operations in Pursuit of Organizational Culture Change, in COMPUTER SECURITY 307-322 (Springer 2019).
vii. Joseph A. Bick, Infection Control in Jails and Prisons, 45 Clinical Infectious Diseases 1047 (2007).
viii. Charles Hoge, et al., An Epidemic of Pneumococcal Disease in an Overcrowded, Inadequately Ventilated Jail, 331 New Eng. J. Med. 643 (1994).
ix. Kathryn Nowotny, Health Care Needs and Service Use Among Male Prison Inmates in the United States: A Multi-Level Behavioral Model of Prison Health Service Utilization, 5 Health Just. 9 (2017).
II. Opinion 9. Based on my expertise in the epidemiology of infectious pandemics and
my understanding of the conditions within the Clayton County Jail from the declarations and other documents listed above, I conclude that unsafe conditions within the jail are exacerbating the spread of disease. As a consequence, detainees in the facility, as well as the corrections and medical staff, their families, and the broader community, are being put at unnecessary risk of severe harm from COVID19.
10. In response, it is my opinion as an expert in infectious disease dynamics that individuals who are already detained in the facility—particularly individuals
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who are susceptible to complications from COVID-19—should be evaluated for
release. Additionally, at a minimum, the jail’s administrators should take immediate
steps to:
a. Provide detainees with clear information about COVID-19, including methods for prevention, recognizing symptoms, and reporting symptoms;
b. Enforce and allow for social distancing among detainees during all activities, including those involving meals, medical care, and court appearances;
c. Provide adequate masks that are cleaned or replaced regularly; d. Implement an enhanced cleaning protocol that includes providing
disinfectant materials to detainees so that they may clean out their cells; e. Implement an enhanced personal hygiene protocol that includes
providing hand sanitizer to detainees, as well as increased quantities of soap and more frequent laundry services; f. Screen all incoming detainees and staff for symptoms and quarantine all incoming detainees for at least 14 days; g. Test anyone who displays any of the most common symptoms associated with COVID-19; h. Act promptly to isolate individuals who report symptoms or who have been in recent close contact with those who have reported symptoms; and i. Ensure that sick individuals have access to supportive medical monitoring and care during the entire period they are symptomatic.
The jail should incorporate these recommendations into clear and formal
guidelines to adequately protect those who remain in jail facilities and ensure that
these steps are being followed by all staff. These steps should be maintained until
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at least such time as the epidemic in the broader community has been contained and social distancing and other prevention and mitigation measures are no longer recommended.
11. By adopting these recommendations—to both release as many people as possible and to implement urgently needed protective measures within the jail— the jail could substantially reduce the number of COVID-19 infections in both the jail and the surrounding Clayton County community, and reduce the risk that the Clayton County healthcare system becomes overwhelmed.
A. Risk of COVID-19 Within Jails and the Wider Community 12. The health of persons in jail and the health of the rest of the community are inherently linked. The two populations must interact because jails constantly release people into the wider community, admit new people from the wider community, and rely on staff and vendors who regularly mix with the wider community. Further, many jails rely on local hospitals to treat incarcerated persons requiring advanced medical care, adding to the burden on the limited resources of local healthcare systems. 13. Unmitigated spread of disease within jails results in worse health outcomes for the entire population. Cases of infection occurring within a jail cause
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additional cases of infection, hospitalization, and deaths in the wider community.1
This link is not surprising. Studies show that the conditions inherent to all jails
degrade the health of incarcerated people, leaving them more vulnerable to infection
and severe outcomes from infection.2 As an epidemiological result of increasing
individual vulnerability to disease, the vulnerability of the whole jail population
increases.
14. Jails with disease prevalence higher than the general populations they
serve—like the Clayton County Jail—will therefore act as sources of infection. Jails
with high infection rates will continue to re-seed infection into the wider community,
undermining the wider community’s efforts to contain or mitigate outbreaks, and
can even introduce disease into otherwise non-infected communities.
1 Eric Lofgren, Kristian Lum, Aaron Horowitz, Brooke Madubuonwu & Nina Fefferman, The Epidemiological Implications of Incarceration Dynamics in Jails for Community, Corrections Officer, and Incarcerated Population Risks from COVID-19, medRxiv (May 4, 2020) (submitted for review), https://www.medrxiv.org/content/10.1101/2020.04.08.20058842v2. 2 David C. McClelland, et al., The Need for Power, Stress, Immune Function, and Illness Among Male Prisoners, 91 J. of Abnormal Psych. 61, 68 (1982); Elizabeth T. Jacobs & Charles J. Mullany, Vitamin D Deficiency and Inadequacy in a Correctional Population, 31 Nutrition 659 (2015); Fiona G. Kouyoumdjian, et al., Do People Who Experience Incarceration Age More Quickly? Exploratory Analyses Using Retrospective Cohort Data on Mortality from Ontario, 12 PLOS One 1, 7 (2017); U.S. Dep’t of Justice, Special Report, Medical Problems of State and Federal Prisoners and Jail Inmates 2011–12 (Revised Oct. 4, 2016) https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf.
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15. Outbreaks of disease in jails are exacerbated by three dynamics: (1) the continuous introduction of potential new sources of infection (for example, as a result of new admissions or by staff); (2) the high density of jail living arrangements (such as bunks and cells), which creates more physical proximity and contact among susceptible incarcerated people; and (3) often inadequate protocols for mitigating the spread of infection within the facility. Any intervention calculated to slow or halt the outbreak of disease in jails will rise or fall on its capacity to meaningfully shift one or more of these three powerful factors.
B. Failure to Mitigate COVID-19 Infection Inside the Clayton County Jail
16. Based on the declarations I have reviewed, it is clear that the Clayton County Jail has not taken basic steps recommended by authoritative public health entities to respond to the COVID-19 pandemic and protect the health and safety of people inside and outside its walls. The lack of action by officials with the Clayton County Sheriff’s Office contravenes public health guidance and common sense. The result is a jail environment that is already in the midst of a recorded outbreak and, with every passing day that allows the continuation of these conditions, continues to risk further viral transmission both within the jail and spilling out into the broader community.
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i. Exposure Conditions Within the Housing Unit Cells 17. Conditions within the jail’s cells pose a substantial risk of infection due to crowding and lack of adequate hygiene materials provided by the jail. The cornerstone of COVID-19 prevention is social distancing, a practice that is effectively impossible in a small jail cell that holds more than one person. Making matters worse, Declarants report that most if not all of the two-person cells in the jail house three people. Thus, within a given cell, there is no possibility of social distancing that would offer any protection from transmission between cellmates. This problem is worsened further by detainees’ lack of access to appropriate masks. 18. Further, detainees’ lack of sufficient access to cleaning products and personal sanitary products also contribute to the potential for transmission. There is an apparent insufficiency in the surfactants/disinfectants and cleaning materials with which the jail provides detainees to maintain personal hygienic practice for themselves and their surroundings. Detainees receive only a single 4 oz. bottle of soap per week, no hand sanitizer, insufficient access to disinfectant, and no sponges or rags. This lack of cleaning materials would be problematic under standard conditions and is even more so during a pandemic. Although the primary routes of infection in normal circumstances outside a jail are from droplets in the air, there are
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still known risks from contaminated surfaces being touched and then transferred by touch of unclean hands to the face. Current evidence suggests that the virus causing COVID-19 may remain alive on hard surfaces like those common to a jail for hours or even days.3 For this reason, the CDC recommends that regularly touched surfaces be frequently cleaned and disinfected.4 In the circumstances described in the detainee statements, there are insufficient cleaning supplies to clean either surfaces or hands. This failure is unacceptable, easily remedied by the jail, and likely to further the spread of infection if not corrected.
ii. Exposure Conditions Outside of Housing Unit Cells 19. The jail’s practice of requiring detainees to congregate in large groups—sometimes multiple times per day— fosters easy transmission of COVID19 infection. Declarants report that they must stand in a line to obtain their second
3 The CDC recommends sanitizing frequently touched surfaces multiple times a day in the household setting. The jail setting is riskier than the household setting due to increased human density, and thus an increased sanitization regime is appropriate. See Centers for Disease Control and Prevention, Cleaning and Disinfection for Households (July 10, 2020) https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cleaningdisinfection.html. 4 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (July 22, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html.
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meal of the day.5 At pill call, the daily distribution of medication to detainees, jail staff require detainees to line up to receive their medications from a nurse in the middle of the housing unit.6 They are further made to congregate in holding cells awaiting courtroom appearances and in the medical wing with people from other housing.7 Each time detainees are instructed to line up close together, if any one person in the group is infected, the infection can easily spread to all persons in the group. The jail can and should reduce the risk of infection by no longer making detainees congregate in large groups (in fact, such congregation of large groups should be actively prohibited), by ensuring the wearing of masks during all activities involving contact with others not housed in the same room together, and by disinfecting high-touch surfaces regularly.
20. Further, depriving incarcerated people of access to the outdoors is known to contribute to immunocompromise, which will increase susceptibility to infection and thereby make it easier to transmit infection to others.8 Nevertheless,
5 See, e.g., Decl. of Randolph Mitchell ¶ 7. 6 See, e.g., Decl. of Barry Watkins ¶¶ 13-14. 7 See, e.g.¸ Decl. of J.H. ¶¶ 31-32 (detailing forced congregation at video court); Decl. of Barry Watkins ¶¶ 26-27 (detailing forced congregation during trips to the medical wing). 8 See Elizabeth T. Jacobs & Charles J. Mullany, Vitamin D Deficiency and Inadequacy in a Correctional Population 31 Nutrition 659 (2015).
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declarants describe receiving no access at all to the outdoors, or even to an open-air “yard,” despite it also being a space where detainees can maintain more distance between themselves and others.9 The jail should therefore allow as many detainees as possible to have time outdoors regularly with access rotated through small groups to limit potential spread due to congregation.
21. Ensuring that every detainee has (and uses) a mask would also decrease transmission risks. Masks have been shown to be effective at decreasing the likelihood of spread of COVID-19 infection from a sick person to a healthy person. Consequently, the jail should issue a mask to each staff person and detainee, and ensure that each person in the jail always has a clean mask. Paper masks should be replaced on a daily basis and cloth masks should be “routinely” laundered.10 The jail should require that all individuals (detainees and staff) always wear appropriate masks. This is not a protocol taken to protect oneself; it is taken to protect others,
9 See, e.g., Decl. of Randolph Mitchell ¶ 8. 10 Edward M. Fisher & Ronald E. Shaffer, Considerations for Recommending Extended Use and Limited Reuse of Filtering Facepiece Respirators in Health Care Settings, 11 J. Occup. & Environ. Hyg. D115 (2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4610368/ (summarizing studies suggesting that facemask protection can be reduced by multiple donnings or uses); Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (July 22, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html.
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and when everyone is protected, every individual benefits. 22. The jail has also failed to provide education regarding protocol for
personal protection from COVID-19 infection and how to interrupt the spread (as described in detainee declarations). This shortcoming is an epidemiologically unsupportable scenario with no discernable justification. Knowledge is a powerful tool for modifying behavior, and disseminating information about how to recognize and prevent the spread of COVID-19 would cost little if anything.11 The jail should make every effort to provide written, verbal, and demonstration-based explanations for best practices about social distancing, personal hygienic practices, and signs and symptoms that should be immediately reported to officers and/or medical staff.
iii. Unclear and Unsafe Intake Protocols 23. The statements from detainees indicate that the jail’s standard operating procedure includes a protocol of quarantining new detainees for up to 7 days before they are sent to general population. However, even if new arrivals are isolated for 7 days, that period of time is epidemiologically insufficient to prevent them from
11 See Robert Hornik, PUBLIC HEALTH COMMUNICATION: EVIDENCE FOR BEHAVIOR CHANGE (Routledge 2002); see also, Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (July 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html (providing sample signage).
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carrying infection into the jail system. The etiology of COVID-19 is such that individuals can begin to show symptoms anywhere from 2 to 14 days after exposure to infection.12 If, as appears to be the case, new detainees are released into the general population fewer than 14 days after their arrival, they may carry presymptomatic infection with them into the general population during this known window of potential duration before symptom onset. This jail protocol poses a risk to the entire area in which they are housed and in which they move.
iv. Failure to Examine, Isolate, or Provide Adequate Medical Care to Symptomatic Individuals
24. Based on my review of the declarations, the jail is committing critical failures by not responding promptly to reported symptoms, and by failing to isolate or provide adequate medical care to symptomatic individuals. Identifying and isolating symptomatic individuals is one of the most important steps the jail should be taking to mitigate transmission. Individuals with any detected sign or symptom not explained by another clinically diagnosed condition should be removed from the rest of the population, tested, and only returned to the rest of the population upon receiving a negative test result. They should have access to supportive medical
12 Centers for Disease Control and Prevention, Symptoms of Coronavirus (May 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/symptomstesting/symptoms.html.
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monitoring and care during the entire period they are symptomatic. The jail’s failure to follow these commonsense procedures ensures the infection will continue to spread unabated.
25. Declarants describe long delays between reporting symptoms consistent with COVID-19 infection and receiving medical attention. Some report filing medical requests and waiting over a week to be seen by a medical professional.13 Others report that, even after notifying multiple members of the jail staff that they are unwell, they were never seen by medical staff.14 Still another reported no access to the system that allows for communications with the medical staff.15 Particularly during a pandemic, no detainee should be prohibited or delayed in any way from receiving medical care, yet such delays appear to be routine at the jail. Immediate attention to symptomatic individuals is key to controlling the spread of the virus and should be a priority of jail staff.
26. Multiple declarations also state that sick individuals are only removed a substantial time after their symptoms are first reported, or that the sick people are not isolated at all.16 These responses from the jail are both medically and
13 See, e.g., Decl. of F.S. ¶ 26. 14 See, e.g., Decl. of W.L.M. ¶¶ 29-34; Decl. of J.H. ¶¶ 30-31. 15 See Decl. of M.B. ¶ 19. 16 See, e.g., Decl. of F.S. ¶¶ 23-24; Decl. of W.L.M. ¶ 18-21.
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epidemiologically unsupportable. As soon as a person develops any sign or symptom of COVID-19 infection they should be separated from others who have not yet developed any symptoms. All symptomatic individuals should be tested immediately, and those who have been in close contact with the symptomatic person should be quarantined and monitored regularly. The symptomatic person should be isolated and monitored closely in a medical environment, especially if they are older or have any of the medical conditions that predispose someone to severe COVID-19 outcomes (e.g., diabetes, hypertension, etc.).
27. Detainees further describe that the identification of active infection in certain dormitories did not lead to isolation of individuals housed in those units from interaction with other detainees. Most critically, detainees acting in their capacity as trustees were still sent to perform duties in housing units with either confirmed or suspected cases of active COVID-19 infection, thereby exposing to infection themselves, the other detainees with whom they are housed, and as a consequence, all areas of the facility served by trustee labor.17 The jail’s failure to isolate individuals who are presenting with COVID-19 signs and symptoms, whether or not they have yet received a positive COVID-19 test, substantially undermines the
17 See Decl. of D.H. ¶¶ 13-25. 17

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efficacy of any other efforts to mitigate the spread of infection. It exposes the entirety of the facility and the broader community to ongoing infection.
28. Finally, the jail must ensure that sick individuals receive supportive medical monitoring and care during the entire period they are symptomatic. Based on my review of the declarations, it appears that the jail is largely failing to provide supportive medical care and oversight to symptomatic individuals, even when the individual has been acknowledged by jail staff to be symptomatic and placed into a form of “medical isolation.” One man reported that, 14 days into his “quarantine,” he still had not been seen by a doctor or received any medical treatment.18 Another reported his symptoms to medical staff and had a COVID-19 test pending, yet he received no medical care and was unable to access help as he experienced a symptomatic attack one night.19 Finally, a third reported an entire dorm being “locked down” for 17 days, during which time nobody in the dorm received any monitoring of, or treatment for, their symptoms.20 Providing continuous medical
18 See Decl. of C.C. ¶ 6 (“I never saw a doctor, and I never received any medicine or other medical treatment.”). 19 See Decl. of W.L.M. ¶ 29 (“At approximately 1:00 a.m., I began to feel severe pain in my lungs; it felt as if my lungs were going to collapse. I could not breathe. I began to bang on my cell door because the emergency call button in my cell does not work. My cellmate, E.R., told me that banging on the door would not work either: no one was coming to help. I believed I was going to die that night.”). 20 Decl. of D.H. ¶¶ 27-28.
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care is critical to preventing harm to detainees, and does not apply any less to people who are quarantined or isolated. The jail’s medical staff should evaluate all known symptomatic individuals at least once per day and should apply “close monitoring” to all individuals who are at least moderately ill.21 Any appropriate evaluation and treatment (such as pulmonary imaging, antibiotics, or oxygen therapy) should be administered without delay.
v. Insufficient Testing Protocols for Reactive Epidemiological Interventions
29. The jail’s testing is woefully insufficient to allow for effective epidemiological interventions. It has been shown that individuals may transmit COVID-19 infection prior to the onset of symptoms. In an ideal scenario, the jail would test each individual daily and remove anyone with a positive test from the rest of the population immediately. Due to practical constraints, such as test availability, an acceptable best practice would be to test a random sample of 10% of individuals present in the jail each week (whether symptomatic or not) as an indication of prevalence and an early warning of increased transmission risks. (Note that this would include detainees and staff and the choice of individuals comprising the 10%
21 National Institute of Health, Management of Persons with COVID-19 (June 11, 2020), https://www.covid19treatmentguidelines.nih.gov/overview/management-ofcovid-19/.
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should be newly randomly selected each week.) If conditions in the jail prevent adopting this best practice, an alternative best practice should at least be to monitor the daily temperature of each seemingly healthy detainee and to perform a more thorough test (which could include a breathing test, test of ability to smell, and lung scan) on any individual showing any symptoms consistent with COVID-19. Jail staff should actively query individuals regarding the onset of new symptoms, rather than relying only on general surveillance testing or medical requests that involve slow processing times.
30. The jail appears to take a haphazard approach to testing people who are symptomatic. Detainees describe being unable to get tested, even when they are experiencing symptoms and bring those symptoms to the attention of the medical staff.22 The jail’s standards for testing people appear to be keyed to temperature.23 Performing a COVID-19 test only on those detainees who have an elevated body temperature is epidemiologically unsupportable. Some studies have concluded that, early in the progression of symptomatic infection, only 44% of patients exhibited
22 See, e.g., Decl. of D.H. ¶ 23; Decl. of J.H. ¶¶ 30-31; Decl. of Randolph Mitchell ¶¶ 16-17. 23 See, e.g., Decl. of Barry Watkins ¶ 41 (“The nurse told me I couldn’t receive a test if I wasn’t running a fever. She did not take my temperature to see if I was feverish.”).
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fever as a symptom.24 Lack of fever should not be used as a disqualification from being tested for active infectious status. Ideally, testing should be based on identification of exposure to a confirmed COVID-19 case via contact tracing but, at minimum, testing should be employed anytime an individual experiences novel and otherwise medically unexplained presentation of any of the most common symptoms associated with COVID-19.25
C. Conclusion and Recommendation 31. It is my professional judgment that the people incarcerated in the Clayton County Jail are facing risks of exposure to COVID-19 that are drastically higher than those faced by members of the broader community. These risks could be mitigated by a set of minor and reasonable steps consistent with community- and correctional facility-focused recommendations by public health authorities including (but not limited to) the CDC; however the jail has thus far failed to take these steps to prevent the spread and resultant harms of COVID-19. Based on the extensive work I have done on mitigation and containment strategies for infectious disease, it
24 Wei-jie Guan, et al., Clinical Characteristics of Coronavirus Disease 2019 in China, 382 New Eng. J. Med. 1708 (2020), https://www.nejm.org/doi/full/10.1056/NEJMoa2002032. 25 Centers for Disease Control and Prevention, Symptoms of Coronavirus (May 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/symptomstesting/symptoms.html.
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is my opinion that reducing the population of the Clayton County Jail by releasing people who are at heightened risk of harm from COVID-19 and implementing the recommended procedures for mitigating the risk of infection within the facility will substantially reduce the number of COVID-19 infections in the jail. Successful implementation of these strategies will also clearly yield a reduction in the source of risk to the families of jail staff and incarcerated individuals, as well as to the broader community.
32. It is my professional opinion that these steps are both necessary and urgent. Each additional day the jail continues under current operational standards will cost lives in both the incarcerated population and the broader Clayton County community it serves.
33. The health of people in jails and prisons, whether incarcerated or employed within, is inextricably linked with community health. It is essential to protect the health of individuals who are detained in and work in these facilities, for their sake and the sake of the wider community.
I swear under penalty of perjury that the information given herein is true and correct, and I understand that a false answer to any item may result in a charge of false swearing.
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Nina H. Fefferman, PhD Name

July 23, 2020 Knoxville, TN Date

The University of Tennessee, Knoxville 447 Hesler Biology Building, 1406 Circle Dr. Knoxville, TN 37996 Phone: 781 710 5025 Fax: 865-974-3067 E-mail: nina.h.fefferman@gmail.com

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EXHIBIT A

Case 1:20-cv-02791-ELR-CCB Document 19-2 Filed 07/27/20 Page 26 of 47

Nina H. Fefferman
http://feffermanlab.org

Nationality: United States of America Telephone: 781 710 5025 e-mail: nina h.fefferman@gmail.com

Departments: Ecology and Evolutionary Biology & Mathematics
Address: 447 Hesler Biology Building University of Tennessee
Knoxville, TN 37996

Education

2005 2001 1999

PhD in Mathematical Biology from the Department of Biology, Tufts University. Advisor: J. Michael Reed
MS in Mathematics from the Department of Mathematics, Rutgers University. Advisor: J. Beck
AB in Mathematics from Princeton University

Positions

202020182018 2016 - 2018 2015 - 2016 2012 - 2016 2011 - 2016 2008 - 2012 2007 - 2016 2005 - present 2005 - 2007 2005

Associate Director, UT One Health Initiative, University of Tennessee, Knoxville Director, Mathematical Modeling Consulting Center, University of Tennessee,
Knoxville Professor, Depts. of Mathematics & Ecology and Evolutionary Biology, University
of Tennessee, Knoxville Associate Professor, Depts. of Mathematics & Ecology and Evolutionary Biology,
University of Tennessee, Knoxville Program Director, Graduate Program in Ecology and Evolution, Rutgers University Associate Professor, Dept. of Ecology, Evolution, and Natural Resources, Rutgers
University Assistant/Associate Professor, School of Public Health, University of Medicine and
Dentistry of New Jersey Assistant Professor, Dept. of Ecology, Evolution, and Natural Resources, Rutgers
University Research Assistant/Associate Professor, The Center for Discrete Mathematics and
Theoretical Computer Science, Rutgers University Co-Director, Tufts University Initiative for the Forecasting and Modeling of
Infectious Disease (InForMID), Tufts University School of Medicine Visiting Research Associate, Center for Discrete Math and Theoretical Computer
Science (DIMACS), Rutgers University Short Term Visitor, School of Natural Sciences, Institute for Advanced Study

Honors/Awards

2019 2019
2017 2016 2015 2012

Invited Participant of the 11th.Triennial Invitational Choice Symposium Invited Performer/Participant, Stand Up Science – a public performance featuring stand-up comics and scientists discussing their work Invited Research Team Leader: AWM Women in Mathematical Biology Workshop Invited Speaker at the National Academy of Sciences Sackler Colloquium Coauthored an article chosen for the cover of Phil Trans Roy Soc B (issue 370.1665) Invited to Health Foo 2012

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2011
2010 2009 2007 -

Shared the Virginia Governor's Technology Award in the category of ‘Cross-Boundary Collaboration in Modeling & Simulation’ for our study ‘Strategic Default in the Context of a Social Network: An Epidemiological Approach’. Speaker at TEDx Midatlantic Rutgers University Packard Fellow Nominee Coauthored an article chosen for the cover of The Lancet Infectious Diseases (vol. 7) Invited to give 22 Keynote, Plenary, or Public Lectures (see Invited Talks for details), over
three continents

Media Coverage (interviews and coverage):
Television/Online Video Broadcasts: The Washington Post, 2020 BBC International, 2020 WBIR News, 2019 NJTV News, 2015 Discovery Channel “How Stuff Works” (Season 2: “Games Unboxed”), 2011 BBC World News Aug 21, 2007 CBS News Aug 22, 2007 Canada Television (CTV) Aug 21, 2007 AT&T Tech Channel Sept, 2007
Radio Broadcasts: NPR Marketplace, Mar 2020 NPR WUOT Knoxville, Mar 2017 PRI Studio 360, Sept 2016 New Tech City, WNYC, Oct 2014 PRI Studio 360, Sept 2014 PRI Studio 360, Jan 2013 BBC UK News, Aug 2007 National Public Radio Podcast “Science Friday”, Sept 2007 AM900 CHML, Sept 2007 National Public Radio “All Things Considered”, Oct 2005
Print/Online Media (2005-present): ABC News, ABS CBN News, ARS Technical, Canadian Press (via CBC), Cell, The Daily Mail (UK), The Daily Telegraph (Australia), The Economist, Forbes, Fox News, G1.com.br (Brazil), The Gist (Slate.com), O Globo (Brazil), Gazet Van Antwerpen (Belgium), La Jornada (Mexico), KevinMD, Knox News, Medical News Today, New Scientist, NU.nl (Netherlands), PC Gamer, Politico.com, Reuters, TIME, The Washington Post, Science News, Slate.com, the South African Star, Tech News World, Wired, Yahoo! Entertainment, You Made I and many more…

Research Support (reverse chronological order by start date)

Active 2020-2021
2020-2022
2017-2022

$198,932 $359,849 $138,964

NSF RAPID – DEB Coupled Social and Epidemiological Networks and COVID-19
DoD Minerva DECUR - The Topology of Interdependent Multi-Domain Behavioral Systems
NSF IOS - Melding Mathematical and Theoretical

PI PI UT-PI

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2017-2021
Completed 2018-2020
2018-2019 2017 2016-2019 2016-2018 2016-2018 2016-2017 2016-2017 2015-2018 2015-2017
2015-2017
2014-2016
2011-2014
2011-2012 2010-2012
2010-2011
2010 2009-2012 2009-2011 2009-2010
2008 2008 2008
2007 2007 2006 2003-2004 2003-2004 2003 2003

$2,498,876
$196,628
$2,000 $30,000 $99,938 $50,000 $190,000 $75,000 $100,000 $292,804 $21,003
$130,000
$100,000
$3,853,332
$22,500 $384,000
$99,944
$22,500 $299,886 $89,318 $10,000
$99,990 $5,000 $75,000
$22,500 $22,500 $5,000 $42,000 $1,500
$500 $1,500

Models of Stress NSF EEID – Co-evolutionary Epidemiology of Avian
Malaria

UT-PI

SESYNC/NIMBioS Modeling Risk Perception, Vectorborne Diseases, and Environmental Integrity
Haines Morris Grant – Internal UTK Competition Syngenta – Workshop Grant – Math of Agribusiness NSF EAGER – CISE – Distributed Anomaly Detection US - Israel Binational Science Foundation (BSF) NSF RAPID – DEB – Modeling Zika Virus Control US START Center – Leadership in Social Networks National Academies Keck Futures Initiative USFWS – White-Nose Syndrome Open Grant NSF RAPID – Information & Intelligent Systems –
Virtual Worlds and Experiential Learning NSF EAGER – DEB – Machine Learning for Co-
Evolutionary Systems Dept. of Homeland Security – Next Generation
Communications and Interoperability NSF EASM – Ocean Sciences – SocioEconomic Systems
and Climate Change UCDPER – Emergency Preparedness Dept. of Homeland Security – Virtual Worlds and
Experiential Education Dept. of Homeland Security – Self-Organizing
Surveillance Systems Dept. of Homeland Security – BioSecurity NSF – DEB – ULTRA-Ex UCDPER – Emergency Preparedness USDA CSREES Multi-State Research Fund – Vector-
borne Disease Control NIH NAID SBIR – Epidemiological Surveillance Rutgers Climate and Environmental Change Initiative Rutgers Academic Excellence Fellowship, Climate and
Health Research Initiative Dept. of Homeland Security – BioSecurity Dept. of Homeland Security – BioSecurity Tufts Summer Scholars Award – Epidemiology NIH R01 Supplement - Epidemiology Tufts Institute of the Environment MASI Student Travel Award TIES Student Travel Award

PI
Co-PI Co-I PI Co-PI PI PI Co-PI Co-PI PI
Co-PI
Project PI
Co-PI
Co-PI Project PI
Project PI
Co-PI Co-PI PI Co-I
PI PI Co-I
PI PI PI Co-PI Co-I PI PI

Consultancies

2020 2020 2018

American Civil Liberties Union (ACLU) The State of Vermont, Department of Education Ogilvy

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Case 1:20-cv-02791-ELR-CCB Document 19-2 Filed 07/27/20 Page 29 of 47

2017-present 2009-present 2011-2012 2006-2007 2004-2009 2004 2004

Humane Society International US Centers for Disease Control Research Institute for Housing America Trust Fund New Jersey, Department of Corrections NIH U19 (Center PI: Gorski) T-cell Mediated Immunity National Defense University DARPA

Participation in Research Centers

Center NIMBioS (National Institute for Mathematical and Biological Synthesis)

Position Leadership Team

Description of Role Active participant in working group, organizer of multiple tutorials, mentor for summer research experience for undergraduates, and founding director of the Mathematical Modeling Consulting Center

InForMID (Tufts University Initiative for the Forecasting and Modeling of Infectious Diseases)

Center Co-Director

Researcher and Administrative lead in the area of mathematical modeling of infectious disease epidemiology

CCICADA (US Dept of Homeland Security Command, Control, and Interoperability Center for Advanced Data Analysis)

Project PI

Principle Investigator into data analysis relating to social behavior in virtual/technologically enable environments, bio-security, and bio-inspired algorithms in cyber-security

DIMACS (The Center for Discrete Mathematics and Theoretical Computer Science)

Member

Active participant in working groups, collaborations, and conferences (including acting as organizer for multiple workshops/conferences/tutorials) in all areas of mathematical macrobiology

START (US Dept of Homeland Security Center for the Study of Terrorism and Responses to Terrorism)

Project PI

Principle Investigator working on understanding social behavior and algorithms driving the emergence of extremism and leadership in

Publications (peer reviewed):
* = a student or post-doctoral researcher advised by Fefferman during the research effort reported
Journal Articles: Published or In Press 70. Udiani*, O. and N.H. Fefferman. (In press) How Disease Risk Constrains the Evolution of Social Systems. Proceedings of the Royal Society, B.
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69. Jiao*, J., M. Gilchrist, and N.H. Fefferman. (In press) The Impact of Host Metapopulation Structure on Short-term Evolutionary Rescue in the Face of a Novel Pathogenic Threat. Global Ecology and Conservation.
68. Lemanski*, N., S. Schwab, D. Fonseca, and N.H. Fefferman. 2020. Coordination Among Neighbors Improves the Efficacy of the Zika Control Despite Economic Costs. PLoS Neglected Tropical Diseases. 14(6): e0007870.
67. Wilson, S., S. Sindi, H. Brooks, M. Hohn, C. Price, A. Radunskaya, N. Williams, and N.H. Fefferman. 2020. How Emergent Social Patterns in Allogrooming Combat Parasitic Infections. Frontiers in Ecology and Evolution. 8:54.
66. DeNegre*, A., Myers*, K., and N.H. Fefferman. 2020. Impact of Strain Competition on Bacterial Resistance in Immunocompromised Populations. Antibiotics. 9(3):114
65. Myers*, K., A. Redere*, and N.H. Fefferman. 2020. How Resource Limitations and Household Economics May Compromise Efforts to Safeguard Children During Outbreaks. BMC Public Health. 20(1):1-14.
64. Suarez*, G., O. Udiani*, B. Allan, C. Price, S. Ryan, E. Lofgren, A. Coman, C. Stone*, L. Gallos*, and N.H. Fefferman. 2020. A Generic Arboviral Model Framework for Exploring Tradeoffs Between Vector Control and Environmental Concern. Journal of Theoretical Biology. 490 (2020) 110161.
63. DeNegre*, A., Myers*, K., and N.H. Fefferman. 2020. Impact of Chemoprophylaxis Policy for AIDS-immunocompromised Patients on Emergence of Bacterial Resistance. PLoS One. 15(1): e0225861.
62. Gallos*, L., S. Havlin, G. Stanley, and N.H. Fefferman. 2019. Propinquity drives the emergence of network structure and density. Proceedings of the National Academy of Sciences. 116(41):20360-20365.
61. Stone*, C., S. Schwab*, D. Fonseca, and N.H. Fefferman. 2019. Contrasting the Value of Targeted vs. Area-Wide Mosquito Control Scenarios to Limit Arbovirus Transmission for Different Tropical Urban Population Centers. PLoS Neglected Tropical Diseases. 13.7: e0007479.
60. Myers*, K, A. DeNegre*, L.K. Gallos*, N. Lemanski*, A. Mayberry, A. Redere*, S. Schwab*, O. Stringham, & N.H. Fefferman. 2019. Dynamic Ad Hoc Social Networks in Improvised Intelligence / Counter-Intelligence Exercises: A Department of Homeland Security Red-Team Blue-Team Live-Action Roleplay. Journal of Homeland Security and Emergency Management. https://doi.org/10.1515/jhsem-2018-0027.
59. Suarez*, G.P., L.K. Gallos, and N.H. Fefferman. 2019. A Case Study in Tailoring a Bio-Inspired Cyber-Security Algorithm: designing anomaly detection for multilayer networks. Journal of Cyber Security and Mobility. 8(1):113-132.
58. DeNegre*, A., K. Myers*, M. Ndeffo, and N.H. Fefferman. 2019. Emergence of Antibiotic Resistance in Immunocompromised Host Populations. PLoS One 14 (2), e0212969.
57. Schwab*, S., C. Stone*, D. Fonseca, and N.H. Fefferman. 2019. (Meta)population Dynamics Determine Effective Spatial Distributions of Mosquito-Borne Disease Control. Ecological Applications 29(3): e01856.
56. Kebir*, A., N.H. Fefferman, and S.B. Miled. 2018. A general structured model of a hermaphrodite population. Journal of Theoretical Biology. 449:53-59.
55. Lemanski*, N.J. and N.H. Fefferman. 2018. Expanding the evolutionary theory of aging: honeybees as a test case for an optimal decision making model of senescence. American Naturalist. 191(6):756-766.
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54. Schwab*, S., C. Stone*, D. Fonseca, and N.H. Fefferman. 2018. The importance of being urgent: the impact of surveillance target and scale on mosquito-borne disease control. Epidemics. 23:5563.
53. Beckage, B., L. Gross, S. Metcalf, E. Carr, K. Lacasse, J. Winter, P. Howe, N. Fefferman, A. Zia, and T. Franck. 2018. Integrating human behavior and risk perception into a climate model. Nature Climate Change. 8:79–84.
52. Maslo, B., O. Stringham, A. Bevan, A. Brumbaugh, C. Sanders, M. Hall, and N.H. Fefferman. 2017. High Survival of Some Infected Bat Populations Veils a Persistent Extinction Risk from White-nose Syndrome. Ecosphere. 8(12):e02001.10.1002/ecs2.2001.
51. Stone*, C.M., S.R. Schwab*, D.M. Fonseca, N.H. Fefferman. 2017. Human movement, cooperation, and the effectiveness of coordinated vector control strategies. Journal of the Royal Society Interface. 14(133):20170336.
50. Lemanski*, N.J. and N.H. Fefferman. 2017. Coordination Between the Sexes Constrains the Optimization of Reproductive Timing in Honey Bee Colonies Nature Scientific Reports. 7:2740.
49. Egizi, A., N.H. Fefferman, and R. Jordan. 2017. Relative Risk of Infection with Ehrlichiosis Agents and Lyme Disease in an Area Where Both Vectors are Sympatric. Emerging Infectious Diseases. 23(6):939-945.
48. Greenbaum*, G. and N.H. Fefferman. 2017. Application of network methods for understanding evolutionary dynamics in discrete habitat. Molecular Ecology. DOI: 10.1111/mec.14059
47. Maslo, B., R. Valentin, K Leu, K Kerwin, A Bevan, G.C. Hamilton, N.H. Fefferman, and D.M. Fonseca. 2017. ChiroSurveillance: The Use of Native Bats to Detect Invasive Agricultural Pests. PLoS One. 12(3), e0173321.
46. Robinson*, O.J., O.P. Jensen, M.M. Provost, S. Huang, N.H. Fefferman, A. Kebir and J.L. Lockwood. 2017. Evaluating the vulnerability of sex-changing fish to harvest: A game-theoretic approach. ICES Journal of Marine Science. 74(3):652-659.
45. Gallos*, L., M. Korczynski*, and N.H. Fefferman. 2017. Anomaly Detection Through Information Sharing Under Different Topologies. EURASIP Journal on Information Security. 2017:5. DOI:10.1186/s13635-017-0056-5.
44. Maslo, B., S. Gignoux-Wolfsohn, and N.H. Fefferman. 2017. Success of Wildlife Disease Treatment Depends on Host Immune Response. Frontiers in Ecology and Evolution. 5(28).
43. Lofgren*, E., A. Egizi, and N.H. Fefferman. 2016. Patients as Patches: Ecology and Epidemiology in Healthcare Environments. Infection Control and Hospital Epidemiology. 37(12):1507-1512.
42. Korczynski*, M., A. Hamieh*, J. H. Huh, H. Holm, S. R. Rajagopalan, and N. H. Fefferman. 2016. Hive Oversight for Network Intrusion Early Warning Using DIAMoND: A Bee-Inspired Method for Fully Distributed Cyber Defense. IEEE Communications Magazine 54(6):60-67.
41. Gallos*, L. and N.H. Fefferman. 2015. Simple and efficient self-healing strategy for damaged complex networks. Physical Reviews E. 92(5):052806.
40. Kebir*, A., N.H. Fefferman, S. Ben Miled. 2015. Understanding hermaphrodite species through game theory. Journal of Mathematical Biology. 71(6-7):1505-1524.
39. Gallos*, L., and N.H. Fefferman. 2015. The Effect of Disease-Induced Mortality on Structural Network Properties. PLoS One. DOI: 10.1371/journal.pone.0136704
37. Burkhalter*, J.C., N.H. Fefferman, and J.L. Lockwood. 2015. The impact of personality on the success of prospecting behavior in changing landscapes. Current Zoology. 61:557-568.
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36. Robinson*, O., J. Lockwood, O. Stringham*, and N.H. Fefferman. 2015. A Novel Tool for Making Policy Recommendations Based on PVA:Helping Theory Become Practice. Conservation Letters. 8(3):190-198.
35. Fefferman, N.H. and E.N. Naumova. 2015. Dangers of vaccine refusal near the herd immunity threshold: a modelling study. Lancet Infectious Diseases. S1473-3099(15)70130-1
34. Maslo, B. and N.H. Fefferman. 2015. A Case Study of Bats and White-Nose Syndrome Demonstrating How to Model Population Viability with Evolutionary Effects. Conservation Biology. 29(4):1176-1185. DOI: 10.1111/cobi.12485.
33. Parham, P E. J. Waldock, G.K. Christophides, D. Hemming, F. Agusto, K. J. Evans, N.H. Fefferman, H. Gaff, A. Gumel, S. LaDeau, S. Lenhart, R.E. Mickens, E. Naumova, R. Ostfeld, P. Ready, M. Thomas, J. Velasco-Hernandez, E. Michael. 2015. Climate, Environmental, and Socioeconomic Change – Weighing up the Balance in Vector-Borne Disease Transmission. Philosophical Transactions of the Royal Society B. 370.1665 (2015): 20130551.
32. Egizi, A., N.H. Fefferman, and D. M. Fonseca. 2015. Evidence that implicit assumptions of “no evolution” of disease vectors in changing environments can be violated on a rapid timescale. Philosophical Transactions of the Royal Society B. 370.1665 (2015): 20140136.
31. Greening*, B., N. Pinter-Wollman, and N.H. Fefferman. 2015. Higher-Order Analysis of Information Sharing and Knowledge Capacity in Animal Social Groups Current Zoology. 61(1): 114–127.
30. Gallos*, L. and N.H. Fefferman. 2014. Revealing effective classifiers through network comparison. Europhysics Letters. 108(3): 38001.
29. Lofgren*, E.T., R.W. Moehring, D.J. Anderson, D.J. Weber, and N.H. Fefferman. 2014. A Mathematical Model to Evaluate the Routine Use of Fecal Microbiota Transplantation to Prevent Incident and Recurrent Clostridium difficile Infection. Infection Control and Hospital Epidemiology. 35(1):18-27.
28. Greening*, B. and N.H. Fefferman. 2014. Evolutionary Significance of the Role of Family Units in a Broader Social System. Nature Scientific Reports. 4: 3608
27. Seiler, M.J., Collins, A.J., and N.H. Fefferman. 2013. Strategic Mortgage Default in the Context of a Social Network: An Epidemiological Approach. Journal of Real Estate Research 35(4).
26. Robinson*, O.J., N.H. Fefferman, and J.L. Lockwood. 2013. How to effectively manage invasive predators to protect their native prey. Biological Conservation 165: 146-153.
25. Fefferman, N.H., and L.M. Romero. 2013. Can physiological stress alter population persistence? A model with conservation implications. Conservation Physiology. 1(1): cot012. doi: 10.1093/conphys/cot012
24. Moorthy, M., D. Castronovo, A. Abraham, S. Bhattacharyya, S. Gradus, J. Gorski, Y.N. Naumov, N.H. Fefferman, and E.N. Naumova. 2012. Deviations in influenza seasonality: odd coincidence or obscure consequence? Clinical Microbiology and Infection. 18(10):955-962.
23. Hock*, K. and N.H. Fefferman. 2012. Social organization patterns can lower disease risk without associated disease avoidance or immunity. Ecological Complexity. 12:34–42.
22. Hock*, K. and N.H. Fefferman. 2011. Violating Social Norms when Choosing Friends: How Rule-Breakers Affect Social Networks. PLoS One. 2011; 6(10): e26652
21. Hock*, K. and N.H. Fefferman. 2011. Extending the role of social networks to study social organization and interaction structure of animal groups. Annales Zoologici Fennici. 48(6):365-370.
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20. Kafai, Y.B. and N.H. Fefferman. 2010. Virtual Epidemics as Learning Laboratories in Virtual Worlds. Journal of Virtual Worlds Research. 3(2):2-15.
19. Hock*, K., K.L. Ng, and N.H. Fefferman. 2010. Systems approach to studying animal sociality: individual position versus group organization in dynamic social network models. PLoS One. 5(12): e15789.
18. Fefferman, N.H. and E.N. Naumova. 2010. Innovation in Observation: A Vision for Early Outbreak Detection. Emerging Health Threats. 3:e6. doi: 10.3134/ehtj.10.006
17. Lofgren*, E.T., J.B. Wenger, N.H. Fefferman, D. Bina, S Gradus, S. Bhattacharyya, Y.N. Naumov, J. Gorski, E.N. Naumova. 2010. Disproportional Effects in Populations of Concern for Pandemic Influenza: Insights from Seasonal Epidemics in Wisconsin, 1967-2004. Influenza and Other Respiratory Diseases. 4:205-212.
16. Phan, L., N.H. Fefferman, D. Hui, and D. Brugge. 2010. Impact of Street Crime on Boston Chinatown. Local Environment. 15(5):481-491.
15. Reed, J.M., N.H. Fefferman, and R.C. Averil-Murray. 2009. Vital Rate Sensitivity Analysis and Management Implications for Desert Tortoise. Biological Conservation. 14(12): 2813-3222.
14. Wilson-Rich, N., Spivak, M., Fefferman, N.H., Starks, P.T. 2009. Genetic, Individual, and Group Facilitation of Disease Resistance in Insect Societies. Annual Reviews of Entomology. 54:405-23.
13. Fefferman. N.H. 2008. Biological Experimentation in silico. Annales Zoologici Fennici, 45: 367368.
12. Lofgren*, E., M. Senese*, J. Rogers* and N.H. Fefferman. 2008. Pandemic Preparedness Strategies for School Systems: Is Closure Really the Only Way? Annales Zoologici Fennici, 45: 449-458.
11. Fefferman, N.H. and K.L. Ng*. 2007. How Disease Models on Static Graphs Fail to Approximate Epidemics in Shifting Social Networks. Physical Review E. 76:031919. (This article was selected for reprinting by the Virtual Journal of Biological Physics Research 2007)
10. Lofgren*, E. and N.H. Fefferman. 2007. The Untapped Potential of Virtual Game Worlds to Shed Light on Real World Epidemics. The Lancet Infectious Diseases. 7:625–629. (article content was the cover of the journal)
9. Lofgren*, E., N.H. Fefferman, Y.N. Naumov, J. Gorski and E.N. Naumova. 2007. Influenza Seasonality: Underlying Causes and Modeling Theories. Journal of Virology, 81(11):5429-5436.
8. Lofgren*, E., N.H. Fefferman, M. Doshi and E.N. Naumova. 2007. Assessing Seasonal Variation in Multisource Surveillance Data: Annual Harmonic Regression. Lecture Notes in Computer Science. BioSurveillance 2007. eds D. Zeng et al. 4506:114-123.
7. Fefferman, N.H. and K.L Ng*. 2007. The role of individual choice in the evolution of social complexity. Annales Zoologici Fennici, 44:58-69.
6. Fefferman, N.H., J.F.A. Traniello, R.B. Rosengaus and D.V. Calleri. 2007. Disease Prevention and Resistance in Social Insects: Modeling the Survival Consequences of Immunity, Hygienic Behavior and Colony Organization. Behavioral Ecology and Sociobiology, 61:565-577.
5. Starks, P.T.B. and N.H. Fefferman. 2006. Polistes Nest Founding Behavior: a Model for the Selective Maintenance of Alternative Behavioral Phenotypes. Annales Zoologici Fennici, 43:456467.
4. Fefferman, N.H., and E.N. Naumova. 2006. Combinatorial Decomposition of an Outbreak Signature. Mathematical Biosciences, 202(2):269-287.
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3. Fefferman, N.H. and J.M. Reed. 2006. A Vital Rate Sensitivity Analysis that is Valid for NonStable Age Distributions and for Short-Term Planning. The Journal of Wildlife Management, 70(3):649-656.
2. Fefferman, N.H., and P.T.B. Starks. 2006. A Modeling Approach to Swarming in Honey Bees. Insectes Sociaux, 53(1):37-45.
1. Fefferman, N.H., E.A. O′Neil, and E.N. Naumova. 2005. Confidentiality vs Confidence: The aggravation of aggregation as a remedy in public health. Journal of Public Health Policy, 26(4):430-449.
Under Review: 13. Carrignon, S., R.A. Bentley, M.J. Silk, and N.H. Fefferman. The ‘Icarus Effect’ of Preventative
Health Behaviors. (Under Review) 12. Silk, M.J., S. Carrignon, R.A. Bentley, and N.H. Fefferman. Improving Pandemic Mitigation
Policies Across Communities Through Coupled Dynamics of Risk Perception and Infection (Under Review) 11. Fefferman, N.H., E.T. Lofgren, N. Li, P. Blue, D.J. Weber, and A.A. Yakubu. Fear, Access, and the Real-Time Estimation of Etiological Parameters for Outbreaks of Novel Pathogens. (Under Review) 10. Fefferman, N.H., S. DeWitte, S.S. Johnson, and E.T. Lofgren. Leveraging Insight from Centuries of Outbreak Preparedness to Improve Modern Planning Efforts. (Under Review) 9. Fefferman, N.H. and O. Udiani. Workforce Training, Deployment, Protection, and Management in the Wake of a Pandemic. (Under Review). 8. Lofgren, E. K. Lum, A. Horowitz, B. Madubuonwu, K. Myers, and N. H. Fefferman. The Epidemiological Implications of Jails for Community, Corrections Officer, and Incarcerated Population Risks from COVID-19. (Under Review). 7. Feinberg, F., A. Patania, B. McShane, B. Falk, D. Larremore, E. Feit, J. Helveston, M. Small, M. Braun, N. Fefferman, and E. Bruch. A Framework for Studying Choices in Networks. (Under Review) 6. Beckage, B., K. Lacasse, J.M. Winter, N.H. Fefferman, F.M. Hoffman, L.J. Gross, S.S. Metcalf, T. Franck, E. Carr, A. Zia, and A. Kinzig. The Earth has humans, so why don’t our climate models? (Under Review) 5. Udiani*, O., K. Lacasse, A. Zia, L. Gallos*, P. Zhong*, B. Beckage, E. Carr, T. Franck, L. Gross, F. Hoffman, P. Howe, A. Kinzig, S. Metcalf, J. Winter, and N.H. Fefferman. Recruitment and Mobilization for Social Movements: implications from network modeling. (Under Review) 4. Udiani*, O., and N.H. Fefferman. Could the Need for Rest Provide a Pathway for the Evolution of Division of Labor in Social Species? (Under Review) 3. Gignoux-Wolfsohn, S.A., Pinsky, M.L., Kerwin, K., Herzog, C., Hall, M., Bennett, A.B., Fefferman, N.H. and Maslo, B., Genomic signatures of evolutionary rescue in bats surviving white-nose syndrome. (Under Review) 2. Hobson, E.A., M.J. Silk, N.H. Fefferman, D.B. Larremore, P. Rombach, S. Shai, and N. PinterWollman. What Are Your Social Questions? Identifying Appropriate Reference Models When Animals Don’t Live in Asymptopia. (Under Review) 1. Siewe*, N., B. Greening*, and N.H. Fefferman. The Potential Role of Asymptomatic Infection in Outbreaks of Emerging Pathogens (Under Review)
Book Chapters:
Published or In Press
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10. Fefferman, N.H. When to Turn to Nature-Inspired Solutions for Cyber Systems. 2019. in NatureInspired Security and Resilience. eds. Eltoweissy, Elalfy, Fulp, and Mazurczyk. pp 29-50. The Institution of Engineering and Technology, London, UK.
9. Price, C.R. and N.H. Fefferman. 2019. A Preliminary Exploration of the Professional Support Networks the EDGE Program Creates. in A Celebration of the EDGE Program’s Impact on the Mathematics Community and Beyond (pp. 317-325). Springer, Cham.
8. Brooks. H.Z., M.E. Hohn, C. Price, A.E. Radunskaya, S.S. Sindi, N.D. Williams, S.N. Wilson, N.H. Fefferman. 2018. Mathematical Analysis of the Impact of Social Structure on Ectoparasite Load in Allogrooming Populations. in Understanding Complex Biological Systems with Mathematics eds. A. Radunskaya, R. Segal, B. Shtylla. Association for Women in Mathematics Series, vol 14. pp 47-61. Springer
7. Williams, N.D., H.Z. Brooks, M.E. Hohn, C. R. Price, A.E. Radunskaya, S.S. Sindi, S.N. Wilson, and N. H. Fefferman. 2018. How Disease Risks Can Impact the Evolution of Social Behaviors and Emergent Population Organization. in Understanding Complex Biological Systems with Mathematics eds. A. Radunskaya, R. Segal, B. Shtylla. Association for Women in Mathematics Series, vol 14. pp 31-46. Springer
6. Korczynski*, M., A. Hamieh*, J.H. Huh, H. Holm, S. R. Rajagopalan, and N.H. Fefferman. 2017. DIAMoND: Distributed Intrusion/Anomaly Monitoring for Nonparametric Detection (invited extended version). in Security, Privacy and Reliability in Computer Communications and Networks. eds. K. Sha, A Striegel, and M Song. River Publishers Series in Communications. River Publishers.
5. Fefferman, N.H. and L.M. Fefferman. 2011. Mathematical Macrobiology: An Unexploited Opportunity in High School Education. in Biomath in the Schools. eds. M.B. Cozzens, and F.S. Roberts. DIMACS Series in Discrete Mathematics and Theoretical Computer Science. Vol 76. American Mathematical Society.
4. Jagai, J., N.H. Fefferman and E.N. Naumova. 2011. Waterborne Disease Surveillance. in Encyclopedia of Environmental Health. eds. J. Nriagu, S. Kcew, T. Kawamoto, J. Patz, and D. Rennie. Elsevier Science. 1st edition
3. Ji, S., W.A. Chaovalitwongse, N.H. Fefferman, W. Yoo, and J.E. Perez-Ortin. 2009. Mechanismbased Clustering of Genome-wide RNA Levels: Roles of Transcription and TranscriptDegradation Rates. in Clustering Challenges in Biological Networks. eds. S. Butenko, P.M. Pardalos, and W.A. Chaovalitwongse. World Scientific Publishing Company.
2. Fefferman, N.H. and J.F.A. Traniello. 2008. Social Insects as Models in Epidemiology: Establishing the Foundation for an Interdisciplinary Approach to Disease and Sociality. in Organization of Insect Societies: From Genome to Sociocomplexity eds J. Gadau and J. Fewell. Harvard University Press
1. MacLeod, N., N. Ortiz, N.H. Fefferman, W. Clyde, C. Schulter, and J. MacLean. 2000. Phenotypic Response of Foraminifera to episodes of global environmental change. in Biotic Response to Global Change. eds S.J. Culver and P. Rawson. Cambridge University Press
Edited Volumes:
1. Fefferman, N.H. (Ed.) (2008) Annales Zoologici Fennici 45(5)
Peer Reviewed Contributed Conference Papers:
8. Suarez*, G.P., L.K. Gallos, and N.H. Fefferman. 2018. A Case Study in Tailoring a Bio-Inspired Cyber-Security Algorithm: designing anomaly detection for multilayer networks. 2018 IEEE Security and Privacy Workshops (SPW). IEEE, 2018.
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7. Fields, D. A., Kafai, Y. B., Giang, M. T., Fefferman, N., & Wong, J. 2017. Plagues and people: Mass community participation in a virtual epidemic within a tween online world. Proceedings of the 12th International Conference on the Foundations of Digital Games. DOI: 10.1145/3102071.3102108
6. Kafai, Y. B., Fields, D. A., Giang, M. T., Fefferman, N., Sun, J., Kunka, D., & Wong, J. 2017. Designing for massive engagement in a tween community: Participation, prevention, and philanthropy in a virtual epidemic. In Interaction Design & Children Conference. New York: ACM, 365-370. ISBN: 978-1-4503-4921-5
5. Fields, D. A., Kafai, Y. B., Giang, M. T., Fefferman, N., & Wong, J. 2017. The Dragon Swooping Cough: Mass community participation in a virtual epidemic within a tween online world. In B. Smith, M. Borge, E. Mercier & K. Y. Lim (Eds.) Proceedings of the 12th International Conference on Computer Supported Collaborative Learning, Volume 2 (pp. 865-866). Philadelphia, PA: International Society of the Learning Sciences.
4. Fields, D. A., Kafai, Y. B., Sun, J., Fefferman, N., Ellis, E., DeVane, B., Giang, M. T., & Wong, J. 2016. The great dragon swooping cough: Stories about learning designs in promoting participation and engagement with a virtual epidemic. In Barany, A., Slater, S., & C. Steinkuehler (Eds.), Proceedings of the Games + Learning + Society (GLS) 12.0 Conference (pp. 419-424). Pittsburgh, PA: ETC Press.
3. Verma, S., A. Hamieh*, J. H. Huh, H. Holm, S. R. Rajagopalan, M. Korczynski*, and N. H. Fefferman. 2016. Stopping Amplified DNS DDoS Attacks Through Query Rate Sharing Between DNS Resolvers, to appear in the International Conference on Availability, Reliability and Security (ARES). (Note: this is the proceeding of a conference, not a journal, but is equivalent to journal publication for the
field of computer science, however in keeping with the conventions of Biology, Fefferman is last author as PI on the sponsoring grant that funded the research.)
2. Korczynski*, M., A. Hamieh*, J.H. Huh, H. Holm, S. R. Rajagopalan, and N.H. Fefferman. 2015. DIAMoND: Distributed Intrusion/Anomaly Monitoring for Nonparametric Detection. CCCN 2015: 24th International Conference on Computer Communications and Networks, IEEE, 2015.
(Note: this is the proceeding of a conference, not a journal, but is equivalent to journal publication for the field of computer science, however in keeping with the conventions of Biology, Fefferman is last author as PI on the sponsoring grant that funded the research.)
1. Fefferman, N.H., J. Jagai, and E.N. Naumova. 2004. Two - Stage Wavelet Analysis Assessment of Dependencies in Time Series of Disease Incidence. Proceedings of the 2004 Conference of the International Environmetrics Society
Research Mentoring
(bold = current)
Undergraduate Researchers:
Shyretha Brown, Danika Chari, Kaige Chen, Ian Clark, Liz Davis, Anne Eaton, Taylor Eisenstein, Brandon Grandison, Derek Hansen, David Haycraft, John Huffman, Ana Kilgore, John Kim, Edward Lee, Somair Malik, Andrew McConvey, Jeffrey Mandell, Zain Paracha, Luke Postle, Lauren Prince, Asya Pritsker, Cathy Reis, Jeremiah Rogers, Bolanle Salaam, Nicole Scholtz, Margaret Senese, Joshua Smith, Andrew Sohn, Kim Stanek, Johanna Tam, Colleen Thiersch, Elena Tsvetkova, Barton Willage, Immanuel Williams, Nakeya Williams, Barry Walker, Hannah Yin, Yi Ming Yu, Yongqing Yuan, Stefanie Yuen, James Xue, Bobby Zandstra
Graduate Researchers:
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(Committee Member, or Advisor for work on funded research projects – not primary dissertation advisor; * = special case)
Kevin Aagard, Emma Bell, Carissa Bleker, Curtis Burkhalter, Jordan Bush, Huilan Chang, Erick Chastain, Fnu Eric Ngang Che, Brittany Coppinger, Ashley Crump, Kathyrn Fair, Alison Golinski, Stephen Grady, Gili Greenbaum, Candice JeanLouis, Hwayoung Jung, Ariel Kruger, Di Li, Eric Lofgren*, Nicholas Lorusso, Adam Marszalek, Benjamin Mcclendon, Anthony Ogbuka, Paul Raff, Orin Robinson, Margaurete Romero, Rajat Roy, Liliana Salvador, Shelby Scott, Tinevimbo Shiri, Brittany Stephenson, Alex Thorn, Rafael Valentine, Alex Villiard, Orion Weldon
(primary research advisor to)
Jessica Beck, Kelly Buch, Ashley DeNegre, Jeff DeSalu, Brad Greening, Natalie Lemanski, Agnesa Redere, Samantha Schwab, Anna Sisk (co-advised), Oliver Stringham, Karen Wylie
Post-Doctoral Researchers:
Dr. Erick Chastain, Dr. Lazaros Gallos, Dr. Manuel Garcia-Quisimondo, Dr. Ali Hamieh, Dr. Karlo Hock, Dr. Cindy Hui, Dr. Jing Jiao, Dr. Amira Kebir, Dr. Maciej Korczynski, Dr. Natalie Lemanski, Dr. Kellen Myers, Dr. Kah Loon Ng, Dr. Chris Stone, Dr. Nourridine Siewe (coadvised by Prof. S. Lenhart), Dr. Gonzalo Suarez, Dr. Oyita Udiani, Dr. Peng Zhong
Courses Developed and Taught (all courses developed from scratch)
• Advanced Mathematical Ecology II (MAT/EEB 682 – University of Tennessee, Knoxville) Spring 2017 and 2019
• Evolution, Disease, and Medicine (ENR110 – Rutgers University / EEB 310 – UT, Knoxville) Fall each year 2009 – 2014, Spring 2018 and 2020
• Conversational Bio-Mathematical Modeling (ENR 428 – Rutgers University/ EEB 475 – UT, Knoxville) Spring 2011 – 2014, 2020
• Problems in Ecology: Academic Pedagogy (ENR 601 – Rutgers University) Fall 2015 • (Co-Developed and Taught) Ethics & Professional Development in Ecology and Evolution (ENR
602 01 – Rutgers University) Spring 2013-2016 (exception – sabbatical Fall 2014-Spring 2015) • Introduction to Modeling Ecology, Evolution, and Epidemiology (ENR 604 – Rutgers
University) Spring each year 2010 – 2016 (exception – sabbatical Fall 2014-Spring 2015) • Introduction to Epidemiological Modeling (ENR 603 – Rutgers University) Fall each year 2009
– 2012 • Elements of Data Analysis and Epidemiology (CMPH 343 – Tufts University School of
Medicine) Spring 2006
Professional Memberships
Association for Women in Mathematics (AWM) Association for Women in Science (AWIS) Complex Systems Society (CSS) Institute of Electrical and Electronics Engineers (IEEE) International Union for the Study of Social Insects (IUSSI) Society for Industrial and Applied Mathematics (SIAM) Society for Mathematical Biology (SMB)
Invited Presentations
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2020
Session Keynote: “Logic, Equations, Data: From each according to their ability,” Intelligent Systems for Molecular Biology (ISMB) 2020, COVID-19 Session (conference shifted to virtual meeting)
Public Webinar: “Invasive Species Policy and COVID-19,” Panel Participant, Ecological Society of America, Webinar Series
Public Interview: “Nina Fefferman,” You Made it Weird podcast Public Lecture: “The Role of Applied Math in Real-time Pandemic Response: How Basic Disease
Models Work,” NIMBioS Webinar Series, Knoxville, TN Public Interview: “Math + Virus + Us,” Here We Are podcast and YouTube video.
2019
Public Lecture: “Vaccine Acceptance and Epidemic Risks,” Infinite Futures Event Series, Museum of Science and Industry, Chicago, IL.
“When to Turn to Biology for Inspiration in Systems Design,” DIMACS 30th Anniversary Conference, New Brunswick, NJ.
“Patients as patches: Ecological challenges from the epidemiology of healthcare environments,” ESA 2019, Louisville, KY.
“Math and Disease,” Possibilities in Postsecondary Education and Science (PIPES), UTK, Knoxville, TN.
Keynote Address: “Evolving Efficient Solutions: How simple natural systems solve the most complicated problems,” MBI Capstone Conference 2019, Columbus, OH (virtual)
Plenary Talk: “How AIDS prevalence impacts the emergence of antibiotic resistance in bacterial infections,” SIAM BAMM 2019, Richmond, VA.
Public Lecture: “Math and Disease,” Stand Up Science, Farragut, TN. “Biosurveillance and Homeland Security,” Princeton University, NJ. “Understanding Social Communication Systems with Homology Theory,” Complex Systems Seminar,
University of Michigan, Ann Arbor, MI. “Going Against the Grain,” Women Empowered in STEM (WeSTEM) 2019, Champaign, IL. “You’re Worth It: Job Negotiations,” Women Empowered in STEM (WeSTEM) 2019, Champaign, IL.
2018
“Math: A Critical, Treacherous Bridge Between Scientific Disciplines,” American Geophyiscal Union (AGU 2018), Washington DC.
“The Evolution of Social Complexity as Multi-Scale Feedback Control on Networks,” Systems Theory Lunch Colloquium, Harvard Medical School, Boston, MA.
“Saving Bats from Fungal Diseases with Linear Algebra,” Claremont Center for Mathematical Sciences Colloquium, Claremont, CA.
Plenary Talk: “Evolving Efficient Solutions: How simple natural systems solve the most complicated problems,” NIMBioS Undergraduate Research Conference 2018, Knoxville, TN.
Plenary Talk: “Linking Local Decisions with Global Outcomes in Networks: Case Studies in Behavior and Population Health” SIAM Life Sciences 2018, Minneapolis, MN.
“The mathematical biology of networks: from disease outbreaks to cyber-attacks,” TN Governor’s School, University of Tennessee, Knoxville, TN.
“Trans-disciplinary adventures in the mathematical biology of networks: from disease outbreaks to cyber attacks,” DIMACS REU, Rutgers University, Piscataway, NJ.
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Public Webinar: “Social and Biological Networks: The Evolution of Social Systems,” US National Academies of Sciences, Engineering, and Medicine: Math Frontiers Webinar Series
2017
“Self-Diagnosing Networks,” Data Institute San Francisco Conference (DSCO17), San Francisco, CA. Keynote: “Evolving Efficient Solutions: How simple natural systems solve the most complicated
problems,” Workshop on Bio-Inspired Security, Trust Assurance, and Resilience (BioSTAR 2017), San Jose, CA. “Wildlife Disease Management Outcomes May Depend on the Mechanism of Host Immune Response,” Distinguished Lecture Series in Immunology and Infectious Diseases, Center for Emerging & Reemerging Infectious Diseases, School of Medicine, University of Washington, Pullman, WA.
2016
“Evolving Healthy Populations,” International Symposium on Biomathematics and Ecology Education and Research 2016, Charlseton, SC.
“Individuals, Societies, and Climate: Modeling motivations to change,” Oak Ridge National Laboratory Workshop on Human Activity at Scale in Earth System Models, Oak Ridge, TN.
“Network Models in Epidemiology,” US-Canadian Institutes Epidemiology Summer School: Mathematical Modeling of Infectious Disease Spread, MBI, Columbus, OH.
“The Invasion Ecology of Diseases in a Human Environment,” Arthur M. Sackler Colloquia of the National Academy of Sciences, Coupled Human and Environmental Systems, Washington DC.
“Global Feedback Control on Centrality in Self-Organizing Systems”, Mathematical Biosciences Institute Workshop on the Control and Observability of Network Dynamics, MBI, Columbus, OH.
“Zika Control: More Complicated than Hoped?” Next Einstein Forum, Dakar, Senegal.
2015
“Linear Algebraic Tools in Conservation Ecology,” Simon A. Levin Mathematical, Computational and Modeling Sciences Center Seminar, Tempe, AZ.
“Applications of Homology Theory to Animal Communication Systems,” Mathematics and Statistics Colloquium, Arizona State Univ., Tempe, AZ.
“Trade-offs Between Collaboration and Infection Risk: Can ‘social distancing’ improve colony function?” Conference on Complex Systems 2015, Tempe, AZ.
“The Benefits of Ongoing Dynamics in Self-Organizing Social Systems,” Conference on Collective Dynamics and Evolving Networks, Bath, UK.
Plenary Talk: Exploiting the Complexity of Identity to Infiltrate Clandestine Groups – Lessons from a LARP, CyDentity Conference, CCICADA, New Brunswick, NJ.
“Incorporating Evolutionary Rescue into Population Viability Models,” Mathematics of Planet Earth: Workshop on Management of Natural Resources, Washington D.C.
“Distributed Detection Algorithms for Real-Time Maritime CyberSecurity,” Joint CCICADA & AMU Conference on Maritime CyberSecurity, New Brunswick, NJ.
“The Definition of Communication: One way biology and math people accidentally talk past each other and what we might be able to do to fix it,” Annual Meeting, Society for Integrative and Comparative Biology, West Palm Beach, FL.
2014
“BioInspired Anomaly Detection: Social Insects and Network Security,” Dept. of Homeland Security Science and Technology HSARPA CyberSecurity Division Research and Development Showcase and Technical Workshop, Washington D.C.
14

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“n-TANGLE: a new method for comparing networks across scales” Workshop on Advances in Discrete Networks, Dept. of Mathematics, Univ. of Pittsburgh, Pittsburgh, PA.
Keynote Address: “Virtual Worlds Helping Public Health Preparedness,” New Jersey Health Care Quality Institute Annual Meeting, Trenton, NJ.
“A Mathematician’s Role in Fighting Ebola,” Saint Ann’s School, Brooklyn, NY. “Provable Boundaries on Disease Outbreaks in Self-Organizing Social Networks,” The Duke
University Mathematical Biology Colloquium, Durham, NC. Keynote Address: “Designing your own role: Women in STEM,” Tufts University Graduate Student
Luncheon for Women in Science, Medford, MA. “Division of Labor as an Adaptation to Combat Disease Risks?” The Seventh International Symposium
on Biomathematics and Ecology: Education and Research (BEER), Claremont, CA. “How dynamic networks affect disease transmission,” The BioCircuits Institute, UCSD, San Diego,
CA. “The Evolution of Social Complexity,” Plant Biology Dept. Seminar, Univ. of Vermont, Burlington,
VT. “Provable Boundaries on Disease Outbreaks in Self-Organizing Social Networks,” Math Dept.
Seminar, Univ. of Tennessee at Knoxville, TN. “Mathematics, Optimization, and the Evolution and Behavior of Social Insects,” Math Dept. Junior
Colloquium, Univ. of Tennessee at Knoxville, TN. “The Life of a Mathematical Researcher,” Saint Ann’s School, Brooklyn, NY. “Mathematics, Optimization, and the Evolution and Behavior of Social Insects,” Social Insect Research
Group Seminar, School of Life Sciences, Arizona State Univ., AZ. “N-tangle: A Network Comparison Method,” Workshop on Animal Social Networks, NIMBioS, TN 2013 “Evolutionary pressures, Infectious Diseases, and Self-Organizing Social Systems,” Evolutionary
Studies Seminar, Co-Sponsored by the Collective Dynamics of Complex Systems Research Group, the Undergraduate Math Club, Upsilon Pi Epsilon, and Pi Mu Epsilon, SUNY Binghamton, NY. “BioInspired Anomaly Detection,” DHS CyberSecurity PI Meeting, Arlington, VA. “Mathematics, Evolutionary Biology, Epidemiology, and National Security”, Saint Ann’s School, Brooklyn, NY. “Evolution of Reproductive Timing and Social Organization in Honey Bees,” Scientific Learning Forum at FMC, Ewing, NJ. “Crowd Sourcing WoW: A Case Study in Improving Pandemic Preparedness,” Annual George M. Sideris Biology Conference, LIU, Brooklyn, NY. 2012 Public Lecture: “Math, Complexity, and Social Groups: Using math to understand the nature of society,” Campus Life Enrichment Committee (CLEC) Lecture, Georgia Southern Univ., GA. “How and Why Static Approximations Can Fail to Give Adequate Insight into Processes on Dynamic Networks,” Math Dept. Colloquium, Georgia Southern Univ., GA. “Theoretical Worlds: An Exploration of Models and Model Systems,” Tufts Univ, Dept. of Civil and Environmental Engineering Seminar Series, Medford, MA. “Help, my avatar is sick!” Panel Talk, SXSW, Austin, TX. “WISE – Women, Ignore Silly Expectations!” 2012 WISE Conference, Texas A&M, TX. 2011
15

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“The Evolution of Social Complexity,” CUNY Initiative for the Theoretical Sciences Workshop on A Unified Theory of Evolution, CUNY, NY.
“Balancing Workforce Productivity Against Disease Risks for Environmental and Infectious Epidemics,” Math Dept. Seminar, Univ. of Ghana, Legon, Ghana.
“Selective Pressures from Disease on Social Behavior in Hosts,” DIMACS/MBI US - African BioMathematics Initiative: Workshop on Genetics and Disease Control, Elmina, Ghana.
Plenary Address: “The Future of Technology and Knowledge,” Next-Generation Communications Interoperability Workshop, Chicago, IL.
“Virtual Worlds and Real Epidemics - Insights from WoW's Corrupted Blood Plague,” E-Virtuoses International Conference on Serious Games, Valenciennes, France.
Plenary Address: “Disease Robustness and Evolutionary Selective Pressures on Social Organization in Eusocial Insects,” Mathematical Biosciences Institute Workshop on Insect Self-Organization and Swarming, Ohio State Univ., OH.
“Hakkar’s Corrupted Blood Plague: How an Outbreak in WoW is Helping Epidemiologists Create Better Disease Models,” Game Developer’s Conference 2011, San Francisco, CA
“Exploring the Role of Behavior in Infectious Disease Dynamics: Mathematical Insights from World of Warcraft and other Virtual Worlds,” DIMACS/CCICADA Student Workshop on Where the Mathematical and Computational Sciences Meet Society, Rutgers University, NJ
“Multi-Dimensional Data and the Influence of Human Behavior in Biosurveillance for Infectious Disease Outbreaks,” Global Biosurveillance Conference: Enabling Science and Technology – 2nd Meeting in the Biological Threat Non-Proliferation Conference Series, Santa Fe, NM
2010 “Distributed Algorithms for Collective Visualization of Data,” Visualanalytics Workshop 2010,
Imperial College London, UK “The Importance of Behavioral Dynamics on Disease Burden,” Southern African Wildlife College,
South Africa “The Impact of Stress on Populations,” DIMACS Advanced Study Institute on Conservation Biology,
Limpopo, South Africa “Social Behavior in Virtual Worlds,” Panel Discussant – InPlay 2010, Toronto, Canada “Self-Organizing Networks, Social Complexity, and Disease Dynamics,” Rensselaer Polytechnic
Institute, NY “Playing with Plague: Exploring Disease Dynamics from Within,” 2010 AAAS Annual Meeting, San
Diego, CA “Epidemiological Pressures on the Evolution of Social Complexity,” Mathematical Methods in Systems
Biology, Tel Aviv, Israel 2009 “Information Theoretic Tool for Biosurveillance,” CCICADA Kickoff Meeting, Rutgers Univ., NJ “Perspectives, Challenges, and Creativity in Understanding Behavioral Epidemiology,” Workshop on
Behavioral Epidemiology, Rutgers Univ., NJ “Evolutionary Implications of Epidemics on Social Behavior,” Evolutionary Genetics and Genomics at
Rutgers, Rutgers Univ., NJ Panel participant and Speaker on Popular Culture and Science, Sheffield Documentary Film Festival
'09, Sheffield, United Kingdom Keynote Address: “Epidemiological Insights from Virtual Worlds,” Life Science Dialogue
Heidelberg, - Inaugural Conference, Germany
16

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“Social Stability and Success: A new concept in self-organizing systems and preferential attachment,” Office of Naval Research Workshop on Complex Systems, Institute for Pure and Applied Mathematics, Los Angeles, CA
“The Impact of Household Capital Models on Targeted Epidemiological Control Strategies for Diseases with Age-Based Etiologies,” Makerere Univ., Kampala, Uganda
Keynote Address: “Hakkar's Corrupted Blood Plague: How an Outbreak in World of Warcraft is Helping Epidemiologists Create Better Disease Models,” Games for Health – Virtual Worlds, Boston, MA
“Network Representations and the Evolution of Social Complexity,” Frontiers in Applied and Computational Mathematics, New Jersey Institute of Technology, NJ
“Mathematical Optimization, Evolutionary Sociobiology, and Eusocial Insects,” Conference on The Power of Analysis, Princeton Univ., NJ
“Mathematical Insights into Behavioral Epidemiology,” Univ. of Texas Health Science Center, Houston, TX
“Basics of Mathematical Modeling,” Mosquito Modeling Made Easy Day, Center for Vector Biology, Rutgers Univ., NJ
“Mathematical and Computational Methods in Epidemiology and BioSurveillance,” Jackson State University, MS
“Mathematics, Optimization, and the Evolution and Behavior of Social Insects,” UNC, Chapel Hill, Applied Math, NC
“Network models in Epidemiology and Sociobiology: Introduction, Overview, and Recent Advances,” Mathematical Sciences, RPI, NY
2008 “Social Behavior and the Dynamics of Corrupted Blood,” Rice University/Games for Health, Houston,
TX “Possible Selective Mechanisms for the Evolution of Disease-defensive Social Organizations,” Ecology
and Evolution Seminar, Boston Univ., MA “Behavioral Epidemiology in Virtual Worlds: Exploiting the virtual experience,” Advanced
Technology Applications for Combat Casualty Care 08; Telemedicine and Advanced Technologies Research Center Medical Simulation & Training Technology “Recent Advances in the What, How and When of Network Models in Infectious Disease Epidemiology,” SIAM 2008, CA “World of Warcraft Corrupted Blood Disease: Epidemiological Observations and Findings,” Games for Health, Baltimore, MD “Computational Ecology: The Evolution of Sociality,” Frontiers in Applied and Computational Mathematics, New Jersey Institute of Technology, NJ Plenary Talk: “Self-organizing social behavior and disease-defensive organizational strategies in social species,” Complexity 2008, Univ. Illinois Urbana, IL “From the Individual to the Population: Modeling the many levels of evolutionary fitness in social species,” Dept. of Ecology and Evolution and Natural Resources, Rutgers Univ., NJ “Individual Decisions, Group Efficiency," ExxonMobil, Clinton, N.J. 2007 Public Lecture: “Virtual Games, Real Epidemics: Can We Learn Real-Life Lessons in BioDefense from Online Games?” Biosecurity, Biotechnology and Global Health Seminar Series, Program on Science and Global Security, Princeton Univ., NJ
17

Case 1:20-cv-02791-ELR-CCB Document 19-2 Filed 07/27/20 Page 43 of 47
“Disease on Networks: Can Static Representations Capture the Full Complexity of a Dynamic Process?” NDSSL Seminar Series, Virginia Bioinformatics Institute, Virginia Tech, VA
Public Lecture: “Real People, Virtual Worlds: Watching a Plague Unfold,” Institute for Mathematical Sciences, National Univ. of Singapore
“The Continued Mystery of Regular, Old, Annual Flu,” Workshop on Mathematical models for the Study of the Infection Dynamics of Emergent and Re-emergent Diseases in Humans, Institute for Mathematical Sciences, National Univ. of Singapore
“Epidemics and the Evolution of Social Complexity,” Program in Ecology and Evolution Seminar Series, Rutgers Univ., NJ
“Playing Games at School: Parents, Public Schools, and Children's Health,” DIMACS Workshop on Game Theory in Epidemiology and Ecology, Rutgers Univ., NJ
“Analyzing Entropy in Biosurveillance,” U.S. Dept. of Homeland Security research briefing, Washington D.C.
“Fantastic Problems in Mathematical Ecology,” DIMACS Bio-Math Connection Field Testers Workshop, Rutgers Univ., NJ
“Does Securing Infrastructure Against Workforce-Depletion Depend on Whether the Risk is Environmental or Infectious?” DIMACS Workshop on Mathematical Modeling of Infectious Diseases in Africa, Univ. of Stellenbosch, South Africa
“Social interaction and disease dynamics,” Workshop on Analysis of Time Series Data in Epidemiology, Tufts Univ. School of Medicine, Boston, MA
“The Behaviors of Individuals and Populations,” Working Group on Spatio-Temporal and Network Modeling of Diseases, ICMS, Edinburgh, Scotland
“The Evolution of Complexity in Already Social Groups,” Dept. of Ecology and Evolutionary Biology, Princeton Univ., NJ
“Disease as a Selective Pressure and the Evolution of Social Complexity,” Applied Biomathematics, Stony Brook, NY
“Vital Rate Sensitivity Analysis: A new method for population viability analysis - Two examples of its use,” Applied Biomathematics, Stony Brook, NY
“Disease as a Selective Pressure and the Evolution of Social Complexity,” Morin Lab, Dept. of Ecology, Evolution and Natural Resources, Rutgers Univ., NJ
2006 “The Role of Individual Choice in the Evolution of Social Complexity and its Implications Towards the
Emergence of Zoonotic Infections,” DIMACS Computational and Mathematical Epidemiology Seminar, Rutgers Univ., NJ “Preparing Societal Infrastructure Against Disease-Related Workforce Depletion,” DIMACS Workshop on Facing the Challenge of Infectious Diseases in Africa, University of the Witswatersrand, South Africa “Fantastic Problems in Mathematical Ecology,” DIMACS Bio-Math Connect Institute for High School Teachers, Denver, CO “Societal Bio-defense - How Can we Accomplish Safety, Stability and Efficiency?” SIAM Annual Meeting, Boston, MA “When females should stop supporting lazy males: mathematics and honey bees?” DIMACS REU Seminar Series, Rutgers Univ., NJ “Selected Problems in Epidemiology.” DIMACS Tutorial on Data Mining and Epidemiology, NJ “How Would Termites Prepare for Pandemic Bird Flu and What Should We Learn From Them?” Joint Dept. of Entomology and Center for Infectious Disease Dynamics Seminar, Penn State Univ., PA
18

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“Different Scales of BioDefense - Can societies be both safe and efficient?” DIMACS Computational and Mathematical Epidemiology Seminar, Rutgers Univ., NJ
2005 “Termites in the Nation′s Service,” DIMACS Computational and Mathematical Epidemiology Seminar,
Rutgers Univ., NJ “Applications of Self-Organizing Systems to Epidemiology.” DIMACS Mixer Series, Rutgers Univ.,
NJ “Disease Signatures: A New Combinatorial Method for Epidemiology,” DIMACS Computational and
Mathematical Epidemiology Seminar, Rutgers Univ., NJ “Fantastic Problems in Mathematical Ecology,” DIMACS Bio-Math Connect Institute for High School
Teachers, Rutgers Univ., NJ “How Complex Systems Can Simplify a Complex Problem: What Epidemiologists Can Learn From
Insects,” Institute for Advanced Study, Center for Systems Biology Seminar Series, NJ 2004 “Incorporating Behavior and Social Structure into Pathogen Defense Strategies. Conference on Innate
Immunity for Biodefense,” National Defense University's Center for Technology and National Security Policy (CTNSP) & the Department of Defense, Washington D.C. Keynote Address: “Social Insects, Immunocompetence and Epidemiology: A Model System for Systems Modelers,” Vanderbilt Medical School, Dept. of Microbiology and Immunology Annual Retreat, TN “Disease and Immunocompetence in Group-Living Animals: Implications for Human Epidemiology,” DARPA/DSO Workshop on Endogenous Defense, VA Contributed Presentations 2008. “An Interdisciplinary Framework for Defining and Distinguishing Security Desiderata for Personally Sensitive Information,” DIMACS/DyDAn Workshop on Internet Privacy: Facilitating Seamless Data Movement with Appropriate Controls 2006. “A Vital Rate Sensitivity Analysis (VRSA) for Non-stable Age Distributions and Short-term Planning,” North American Ornithological Conference 2004. “A Mathematical Analysis of Reproductive Fission,” North American Section of the International Union for the Study of Social Insects (with published abstract) 2004. “Two-stage Wavelet Analysis Assessment of Dependencies in Time Series of Disease Incidence,” The 2004 Conference of the International Environmetrics Society (with published abstract) 2004. “Mathematical Modeling of Behavior and Ecology in Social Insects: Social mechanisms of pathogen control in termite colonies,” Departmental Research Seminar, Tufts Univ. 2003. “Modeling Waterborne Infectious Outbreaks: When, where and how bad will they be?” The 2003 Conference of the International Environmetrics Society (with published abstract) 2003. “Modeling Disease Resistance through Social Interactions in Termites,” The 2nd Conference on the Mathematics and Algorithms of Social Insects (with published abstract)

Service (external to Home Institution)

Ongoing

Referee of papers for American Naturalist, Annales Zoologici Fennici, Behavioral Ecology and Sociobiology, Biological Conservation, BMC Evolutionary Biology, Bulletin for Mathematical Biology, Canadian Biosystems Engineering, Conservation Letters, IMA Journal of Applied Mathematics, Journal of Biological Dynamics,

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2020-cont.
2020-cont. 2019-2021
2019 2019 2018 2018 2018
2017-cont.
2017
2017 2016
2016
2014 2013- 2016
2013 2013-2016 2013-2019
2012
2012
2011
2011
2011 2011
2010
2010

Journal of Infectious Diseases, Journal of Insect Science, Journal of Nonlinear Dynamics, Mathematical Biosciences, Journal of Medical Internet Research, Journal of the Royal Society Interface, Malaria Journal, Nature, Nature Scientific Reports, Parasites and Vecotrs, PeerJ, Phyiscal Reviews X, PLoS Computational Biology, PLoSOne, PloS Medicine, PNAS, Vaccine, Vector-Borne and Zoonotic Diseases Reviewer/Fact Checker for Health Feedback (a not-for-profit organization verifying the credibility of influential claims and media coverage that claims to be scientific, most often on topics of climate and health) Deputy Editor PLOS Computational Biology
Director of Development, Enhancing Diversity in Graduate Education (EDGE) Foundation
Guest Editor PLOS Computational Biology
Co-Organizer SIAM Network Science Annual Meeting (NS 19)
NSF ad hoc proposal reviewer
Burroughs Wellcome Fund grant proposal reviewer
Co-Organizer IEEE Symposium on Security and Privacy, entitled: 3rd Workshop on Bio-inspired Security, Trust, Assurance and Resilience (BioSTAR 2018)
Member of the Leadership Team of the National Institute for Mathematical and Biological Synthesis
Co-Organizer NIMBioS Workshop on Applying Optimization Techniques to Agricultural Problems
ARO grant proposal reviewer Co-Organizer MBI (the Mathematical Biosciences Institute at Ohio State) Workshop on
Generalized Network Structures and Dynamics Co-Organizer MBI (the Mathematical Biosciences Institute at Ohio State) Emphasis
Semester on Dynamics of Biologically Inspired Networks ARO grant proposal reviewer Member of Scientific Advisory Board for MBI (the Mathematical Biosciences Institute
at Ohio State) NIH grant proposal reviewer Co-Organizer NIMBioS Working Group on Climate Change and Vector-borne Diseases Invited Participant Joint NIMBioS-SESYNC Working Group on Human Risk
Perception and Climate Change Invited Grant Proposal Reviewer for the United States – Israel Binational Science
Foundation US Environmental Protection Agency FIFRA Scientific Advisory Panel (SAP) on
Pollinator Risk Assessment Framework Invited Participant - External Expert Review Panel for Bioscience Research and
Development at Los Alamos National Laboratory Program Committee Member, The Third International UKVAC Workshop on Visual
Analytics (VAW 2011) NSF grant proposal reviewer Co-Organizer DIMACS/MBI US - African BioMathematics Initiative: Advanced Study
Institute and Workshop on Genetics and Disease Control Organizer of the DIMACS Mini-Workshop on ‘Emergent Properties of Dynamic
Biological Networks’ Lecturer at DIMACS/MBI US - African BioMathematics Initiative: Workshop and
Advanced Study Institute on Conservation Biology

20

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2010
2010 2010
2010
2009
2009 2009
2009 2008-2010 2008-2010 2008 2008
2007
2006-2016 2004 2004 2003
2000-2002 1999

Organizer of the DIMACS Mini-Workshop on ‘Game-theoretic Approaches to Medical Prognosis’
NSF grant reviewer/panel participant Invited International Reviewer for Centre of Excellence Grants for the Australian
Research Council Co-Organizer of the DIMACS Workshop on Modeling and Mitigation of the Impacts of
Extreme Weather Events to Human Health Risks Co-Organizer DIMACS Workshop on Economic Epidemiology, Makerere Univ.,
Kampala, Uganda NSF grant reviewer/panel participant Co-Organizer/ Program Co-Chair Workshop on Economic Epidemiology, Makerere
Univ., Kampala, Uganda Co-Organizer Mosquito Modeling Made Easy Day at the N.J. Center for Vector Biology Member Chief Editorial Committee for the DIMACS Book Series Member Editorial Board of DIMACS Educational Modules Series Invited organizer SIAM mini-symposium on Network Models of Infectious Disease Ran the Reconnect Program on Biosurveillance at DIMACS – a week long short course
for teaching faculty at liberal arts institutions on an advanced topic to expand their own and their students research opportunities Mentor to two teams of researchers for Department of Homeland Security funded Research Experience for those at Minority Serving Institutions Advisory/Editorial Board Member for the journal Annales Zoologici Fennici Subject Matter Expert on Innate Immunity and Biodefense, National Defense University Research Consultant, DARPA (via Strategic Analysis, INC.) Developed algorithm for Managing Endangered Species Habitat in Hawaii - MESHH software package (Reed, J.M., N.H. Fefferman, C.S. Elphick, and M. Silbernagle. 2004) Technical Editor (Cryptography) to MacMillan Press Invited Reviewer of AES submission to the National Institute of Standards and Technology, later published as The Twofish Encryption Algorithm, Schneier, et al, 1999, John Wiley & Sons Inc.

Service (internal to Home Institution)

2020 2019-cont. 2019
2019 2018 2018-cont. 2017-cont. 2017
2017 2016-2017
2016-2017

Advisor to the COVID-19 Re-Imagining Fall Task Force Head of Graduate Admissions, Program in Ecology and Evolutionary Biology Research Mentor for the NIMBioS Summer Research Experiences (SRE) for
Undergraduates Co-Organizer Tutorial on Networks at NIMBioS Serve on departmental Promotion and Tenure Committee for Prof. O’Meara Serve on Faculty Mentoring Committee for Prof. Kivlin Served as Departmental Coordinator for University Future Faculty Program Research Mentor for the NIMBioS Summer Research Experiences (SRE) for
Undergraduates Lecturer for Joint 2017 MBI-NIMBioS-CAMBAM Summer Graduate Program University of Tennessee, Knoxville Department of Ecology and Evolutionary Biology
Search Committee Member and Diversity Advocate (Ecosystem Ecology Search) University of Tennessee, Knoxville Department of Mathematics Search Committee
Member (Mathematical Biology Search)

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2016-cont.
2015-2016 2014
2010
2009-2010 2009 2009-2010 2008-2012 2008-2010 2008-2010 2007-2009
2006-2015 2005-2007

University of Tennessee, Knoxville Program in Ecology and Evolutionary Biology Graduate Affairs Committee Member
Rutgers University Biological Sciences Area Committee Member Rutgers University EENR Department Wildlife Biology Faculty Search Committee
Member Co-Mentor to a team of researchers for Department of Homeland Security funded
Research Experience for those at Minority Serving Institutions Organizer of the EENR seminar series Organizer of the DIMACS Workshop on Behavioral Epidemiology Member E&E Executive Committee Member of EENR Curriculum Committee Member Chief Editorial Committee for the DIMACS Book Series Member Editorial Board of DIMACS Educational Modules Series Member of the Rutgers University Advisory Board to the Office for the Promotion of
Women in Science, Engineering and Mathematics Research Advisor for Rutgers Univ. DIMACS REU Co-organizer DIMACS seminar series Mathematical and Computational Epidemiology

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EXHIBIT B
Declaration of Fred Rottnek, M.D., M.A.H.C.M.

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RHONDA JONES et al.,

Plaintiffs, v. VICTOR HILL et al.,

CIVIL ACTION NO. 1:20-CV-2791-ELR-CCB

Defendants.

EXPERT DECLARATION OF FRED ROTTNEK, M.D., M.A.H.C.M.
I, Fred Rottnek, being competent to make this declaration and having personal knowledge of the matters stated herein, declare under penalty of perjury that the following is true and correct:
1. I am over 21 years of age. The statements contained in this declaration are based on my personal knowledge, or on information that physicians would reasonably rely on in forming an opinion and are true and correct to the best of my knowledge.

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I. Expert Qualifications 2. I am a Professor of Medicine at the Saint Louis University School of
Medicine; Professor in the Physician Assistant Program at the Doisy College of Health Sciences; and Professor in the Center for Health Law Studies in the School of Law. I am the Director of Community Medicine in the Department of Family and Community Medicine and the Program Director of the Addiction Medicine Fellowship. I am board-certified in Family Medicine and Addiction Medicine, and I am a Certified Correctional Health Care Physician through the National Commission on Correctional Health Care (“NCCHC”).1
3. My curriculum vitae is attached to this declaration as Attachment A. 4. I was the lead physician and medical director of the Saint Louis County Jail, a large urban jail, from June 2001 through September 2016. In this role, contracted through the Saint Louis County Department of Health, I saw incarcerated patients three days per week; “took call,” or advised on-site nurses on medical issues in the facility about 16 days per month; and participated in the
1 A NCCHC credentialed physician is one who has “demonstrated understanding of the medical needs of the inmate population and possesses knowledge of the unique challenges, legal context and policies and procedures specific to physicians practicing in a correctional environment.” See National Commission on Correctional Health Care, CCHP-P Certification, https://www.ncchc.org/cchp-p (last visited July 14, 2020).
2

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leadership teams that were responsible for the health and well-being of detainees, correctional medicine staff, correctional staff, and visitors to the jail, as well as Juvenile Detention in the Family Courts of Saint Louis County.
5. During my years in this role, I was responsible for directing the medical care and supporting the correctional medicine staff in the care of a daily census of incarcerated people that varied from 900 to 1,400, as well as annual intake screenings of 30,000 to 34,000 arrestees. The Saint Louis County Jail was (and is) the only jail in the State of Missouri that meets the American Correctional Association’s accreditation standards. Juvenile Detention is accredited by the National Commission on Correctional Health Care.
6. In addition to making policies regarding patient care and custody of medically vulnerable detainees, I developed policies regarding institutional safety. Examples of the latter include standard operating procedures on how to manage care for complex patients in the medical and psychiatry infirmary, hygiene and cleaning protocols during the initial outbreak of methicillin-resistant staphylococcus aureus (“MRSA”) in the early 2000’s. MRSA was an antibioticresistant strain of bacteria that was spread by contact and through unhygienic intravenous drug injection. It was particularly difficult to treat due to its resistance to antibiotics, and, much like COVID-19, it can live on surfaces for days and
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remain undetected in hosts, which greatly increases the likelihood that it will spread. The congregate setting of the Jail substantially increased the likelihood that MRSA would spread within the facility, and thus, in order to contain and prevent infection, proper personal hygiene and disinfectant of high-touch surfaces and common areas was critically important to preventing an outbreak within the facility. To successfully prevent the spread of MRSA within the facility, my team (including Jail staff) developed an educational video shown daily to all the housing pods explaining transmission, prevention, and proper handwashing to mitigate spread of the bacteria. This video was shared with and disseminated throughout the country by the National Institute of Corrections. In addition to this tool, we created protocols for institutional cleaning, including cleaning schedules, instructed detainees to effectively sanitize their own cells with disinfecting wipes, and employed workers to mop floors and properly sanitize high-touch surfaces and shared spaces. We also developed medical protocols to standardize the prescription of antibiotics based on Bureau of Prisons recommendations. Within two months, we had MRSA infections down to one eighth of the rate of infection at its peak.
4

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7. I also helped develop safety and emergency protocols related to the institutional lockdown following Michael Brown’s shooting death in Ferguson, MO, in August 2015.
8. While I have continued to practice family medicine and addiction medicine since 2016, I recently returned to practice correctional health care on July 1, 2020. I am now the Medical Director of Family Courts and Juvenile Detention for the 22nd Judicial Court of St. Louis. In this role, I am building an interprofessional clinical team to modernize and enhance existing services in Juvenile Detention—similar to my work with the Saint Louis County Jail and Juvenile Detention from 2001-2016. I am maintaining my existing position at St. Louis University.
9. I have provided this declaration on a pro bono basis. If I am asked to provide testimony to the court, I will be providing testimony on a pro bono basis. II. Assignment, Documents Reviewed, and Summary of Opinion.
10. I was asked by Plaintiffs’ counsel to offer my opinion, based on my knowledge, professional medical experience, and expertise in correctional medicine, regarding whether the measures taken by the Clayton County Jail in response to the novel coronavirus (“COVID-19”) outbreak have been minimally adequate to mitigate the spread of COVID-19 within the Clayton County Jail. I
5

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have also been asked to recommend any additional steps that the Clayton County Jail should take to ensure that it is following basic, well-accepted public health standards for the mitigation of COVID-19 in jails.
11. I have reviewed and rely on the following documents for this declaration:
a. Declarations of the following individuals: Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins, M.B., C.C., J.H., F.S., W.L.M., D.H., and A.W. All are either currently incarcerated in Clayton County Jail or have been recently incarcerated in the jail.
b. Documents regarding the nature and scope of the Clayton County Jail outbreak from the Georgia Department of Public Health.
c. The Monthly Jail Report for the month of June, published by the Georgia Department of Community Affairs, showing the Clayton County Jail’s stated capacity and population.
12. I have also relied on guidance from the Centers for Disease Control and Prevention (“CDC”), the National Commission on Correctional Health Care (“NCCHC”), and the National Institute of Corrections (“NIC”) on COVID-19, my
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experience working in primary care and public health in both jail and juvenile detention settings, and my review of the relevant medical literature.
13. In my opinion, the Clayton County Jail has taken little meaningful action to prevent the spread of COVID-19 and to protect the health and safety of medically vulnerable individuals. Among other shortcomings, jailers have not made medical attention adequately available to medically vulnerable detainees; have not implemented adequate social distancing guidelines; have not implemented adequate plans to ensure that commonly touched surfaces are sanitized; have failed for months to provide detainees with protective facemasks; have housed infected persons in the same cells with uninfected persons; and do not have a sufficient testing and tracing protocol.
14. As a consequence of the Defendants’ failures to act, there is a significant outbreak of COVID-19 at the jail, with 72 confirmed positive cases as of July 9, 2020. Everyone working at or living in the Clayton County Jail is now at risk of serious illness, or even death for those who are most medically vulnerable. The Clayton County Sheriff’s Office should take corrective action immediately in order to decrease the substantial risk of serious harm to detainees, staff, and the community at large. As laid out in more detail in Section VII, I recommend that Clayton County Jail release as many medically vulnerable detainees as possible;
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reduce the remaining population to best allow for adequate social distancing; and enforce CDC guidelines to reduce the risk of infection and sequelae through strict adherence to use of personal protective equipment (PPE), cleaning, and hygiene practices. III. Public Health Recommendations for Containing the Spread of COVID-
19 in Correctional Facilities. 15. Jails, much like cruise ships, were early incubators for the coronavirus because they are sites where large groups of people live, work, sleep and otherwise congregate in close quarters. 16. The spread of COVID-19 within jails in turn creates greater risk for spread throughout the community outside the jail walls. Staff members enter and exit jails for their shifts on a daily basis and could become vectors for introducing the virus to the broader community. The inverse is true too: spread outside the jail will lead to greater spread inside the jail. 17. Despite these inherent risks, if Jail staff strictly follow the Centers for Disease Control and Prevention (“CDC”) guidelines regarding COVID-19, they
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can mitigate the risk of infection and serious illness to detainees, staff, and the public.2
18. The CDC recommends, among many other measures: a. Posting signage throughout the facility to communicate to detainees and staff: symptoms of COVID-19; hand hygiene instructions; the importance of reporting one’s symptoms to medical providers; and, for staff, instructions on stay-at-home protocol; b. Providing a sufficient stock of hygiene, cleaning, PPE and medical supplies, and developing a contingency plan for the replacement of such supplies in the event of an outbreak; c. Cleaning and disinfecting frequently touched surfaces, especially in common areas several times per day, even if COVID-19 cases have not yet been identified in the facility or community, and even if those surfaces are not ordinarily cleaned daily;
2 See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CDC, https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html (last updated July 14, 2020) (hereinafter CDC Interim Guidance).
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d. Providing detainees and staff no-cost access to sufficient amounts of hygiene supplies such as soap, running water, and tissues;
e. Implementing screening protocols for new individuals entering the jail and medically isolating individuals with known or suspected cases;3
f. Disinfecting thoroughly all areas where people with known or confirmed COVID-19 infections spent time;
g. Quarantining close contacts of confirmed or suspected COVID-19 cases; and
h. Ensuring that detainees receive medical evaluation and treatment at the first signs of COVID-19 symptoms.
19. The measures listed above are designed to manage and mitigate—not completely eliminate—the increased risk to jail populations. The most effective management strategy for slowing the spread of infection, for people inside the jail
3 The CDC recently promulgated additional guidance for jails to consider testing even asymptomatic individuals without known exposure to COVID-19 in areas with known community spread. See Interim Considerations for SARS-CoV-2 Testing in Correctional and Detention Facilities, CDC, https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/testing.html (last updated July 7, 2020).
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and outside in the community, is limiting the number of people confined in a congregate environment like the jail.
20. As the pandemic continues, Jail staff should implement the following strategies to reduce the risk of serious illness or death among jail populations, including detainees, staff, and visitors:
a. Release or relocate medically vulnerable detainees as quickly as possible so that they can maintain social distance;
b. Reduce the remaining population to best approximate social distancing for those within the jail; and
c. Enforce CDC guidelines to reduce the risk of infection and sequelae to all in the jail environment, including detainees, correctional staff, medical staff, vendors, and other visitors.
IV. The Spread of COVID-19 at the Clayton County Jail 21. As noted above, I have reviewed the sworn declarations of numerous
current or recently released detainees, including: Rhonda Jones, Randolph Mitchell, Michael Singleton, Barry Watkins, M.B., C.C., J.H., F.S., W.L.M., D.H., and A.W. Multiple detainees reported that they tested positive for COVID-19 while in jail. Others reported experiencing symptoms consistent with COVID-19 but stated that they had not been tested.
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22. I have also reviewed data regarding the nature and scope of the Clayton County Jail outbreak from the Georgia Department of Public Health. Based on the documents listed above, it is my opinion that the Clayton County Jail is experiencing a significant COVID-19 outbreak. Numbers have consistently increased in these first months, and the facility has continued to operate at 96% capacity as of June 2020.4 These two factors ensure an exponential spread of the virus to detainees and staff. The documents provided by the Department of Public Health show that COVID-19 cases in the jail have continued to increase since the first confirmed positive test was returned in April 2020: They show that as of June 11, 2020, there were 45 confirmed positive tests; 13 of these were jail staff, and 32 were detainees.5 As of July 9, 2020, there were 72 confirmed positive cases among detainees.6
23. Without increased protective measures, these numbers will continue to increase, and it is likely that people will suffer lasting harm or die.
4 See Georgia Department of Community Affairs Office of Research, County Jail Inmate Population Report, 8 (June 4, 2020), https://www.dca.ga.gov/sites/default/files/jail_report_jun20.pdf. 5 See Email from O. Adewale, Dr.P.H., M.P.H., June 11, 2020; Excel Spreadsheet from O. Adewale, Dr.P.H., M.P.H., June 11, 2020. 6 Email from O. Adewale, Dr.P.H., M.P.H., July 9, 2020.
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V. The Clayton County Jail’s Failure to Implement Basic Measures to Control the Spread of COVID-19 24. Based on the declarations and other documents I have reviewed, I find
that the jail has not taken adequate steps to protect medically vulnerable individuals and has not even minimally complied with CDC guidelines for managing COVID-19 within correctional facilities.
A. The Jail Has Not Taken Adequate Steps to Protect Medically Vulnerable Individuals.
25. Jails and prisons typically house detainees with chronic conditions, particularly in men, that were not well-controlled prior to incarceration. According to the CDC, many of these chronic conditions make people susceptible to the risk of serious illness or death from COVID-19. Specifically, the CDC has put forth the following list of diagnoses, just updated on July 17, 2020, that would describe a detainee as being medically vulnerable to the effects of COVID-19:7
a. People of any age with the following conditions are at increased risk of severe illness from COVID-19: i. Cancer; ii. Chronic kidney disease; iii. Chronic obstructive pulmonary disease (“COPD”);
7 See People with Certain Medical Conditions, CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-withmedical-conditions.html (last updated July 17, 2020).
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iv. Immunocompromised state (weakened immune system) from solid organ transplant;
v. Obesity (body mass index [“BMI”] of 30 or higher); vi. Serious heart conditions, such as heart failure, coronary
artery disease, or cardiomyopathies; vii. Sickle cell disease; or viii. Type 2 diabetes mellitus.
b. Based on what we know at this time, people with the following
conditions might be at an increased risk for severe illness from
COVID-19:
i. Asthma (moderate-to-severe); ii. Cerebrovascular disease (affects blood vessels and blood
supply to the brain); iii. Cystic fibrosis; iv. Hypertension or high blood pressure; v. Immunocompromised state (weakened immune system)
from blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines; vi. Neurologic conditions, such as dementia; vii. Liver disease; viii. Pregnancy; ix. Pulmonary fibrosis (having damaged or scarred lung tissues); x. Smoking; xi. Thalassemia (a type of blood disorder); or xii. Type 1 diabetes mellitus.
26. Additionally, individuals aged 55 or older, even if they are not
diagnosed or receiving treatment for one of the aforementioned conditions, are at
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an increased risk of serious illness or death from COVID-19 and are properly classified as medically vulnerable.
27. To properly respond to a COVID-19 outbreak in a jail setting, administrators must identify all the people held in their custody who are medically vulnerable to infection. The development of such a list or registry is encouraged by the CDC as well as correctional healthcare accrediting bodies. This task is critical for several reasons, and the daily updating of the list and locations of highrisk detainees is critical to basic outbreak management. Creating a real-time list of high-risk detainees allows for:
a. Identification of high-risk detainees who are eligible for release from detention;
b. Development and implementation of re-entry plans of care and support with community partners for high-risk detainees;
c. Provision of adequate and well-informed medical care by clinicians who understand who their high-risk patients are;
d. Implementation of enhanced protective measures for high-risk detainees who are not ill, through active surveillance, special housing arrangements, and other protective measures;
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e. Implementation of enhanced surveillance and protective measures for high-risk detainees who are in a quarantine setting, or who develop symptoms of COVID-19; and
f. Awareness and comprehension by individual detainees as to their level of risk, allowing them to make informed decisions about illness prevention.8
28. The Clayton County Jail has created and perpetuated conditions that do not allow for the protection of medically vulnerable detainees from COVID-19. Showers, telephones, and kiosks are communal and infrequently cleaned. Sinks and toilets are communal in the open dorms. In the individually celled housing units, toilets and sinks are shared by the three people that live in any given cell. Toilets leak, and over-capacity conditions require people to sleep on the floor, a few feet away from the shared toilet.
29. The declarations of detainees with known preexisting health conditions show that the jail has not taken adequate steps to protect them from contracting COVID-19. Examples of preexisting conditions suffered by the declarants include breast cancer, thyroid disease, type 1 diabetes mellitus, chronic obstructive pulmonary disease (COPD), hepatitis C, hypertension, hand fracture
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due to a car accident prior to incarceration, and chronic pain due to a car accident requiring surgery and metal placement. Medically vulnerable people detained at or recently released from the Clayton County Jail include the following individuals:
a. Declarant M.B. is a 52-year-old woman with a history of breast cancer.9 She reports receiving chemotherapy at Southern Regional Medical Center from 2013-2016.10 Cancer, even when in remission, can weaken one’s immune system. She also has thyroid disease, which could negatively impact her immune system.11 At the time of her declaration, she reported symptoms of COVID-19, but she had not received any medical evaluation or treatment for those symptoms. She was restricted from use of the kiosk—the means to access medical care. When refused a mask by an officer, she had to makeshift one out of her underwear.12 She reported no social distancing in the facility or instructions to do so.13
9 Declaration of M.B., ECF No. 6-2 Ex. B-1, at ¶¶ 2, 12 (“M.B. Declaration”). 10 Id. at ¶ 12. 11 Id. 12 Id. at ¶ 13. 13 Id. at ¶ 6.
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b. Plaintiff Watkins is a 60-year-old man with type 1 diabetes mellitus.14 He reports—as do others—that he receives meals twice daily. Breakfast is served around 04:00 and lunch is served sometime between 9:30 and 11:00. (At the latter meal, detainees are provided a bagged sandwich to eat later for dinner.) He reports having his blood sugar checked and administered twice daily—at 03:00 and again at 14:00.15 When a patient requires insulin, blood sugar checks are most useful prior to meals or snacks. In the practice described, the 14:00 blood sugar check is not very useful. And poorly controlled diabetes can compromise the immune system, particularly if blood glucose is not well-controlled. Moreover, when the patients with diabetes are lined up in the medical wing for these checks and administration, there may be up to 75 people in line depending on how many dorms are let out, just a foot or two apart, without social distancing.16 Watkins states that he was denied testing for COVID-19 when his cellmate developed
14 Declaration of Barry Watkins, ECF No. 6-1 Ex. A-4, at ¶¶ 2-3 (“Watkins Declaration”). 15 Id. at ¶ 26. 16 Id. at ¶ 27.
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signs of the disease.17 He did not receive a blue surgical mask until the end of May.18 c. Plaintiff Jones is a 58-year-old woman with COPD, hepatitis C, and two hospitalizations within the last year for pneumonia.19 She reported not receiving a surgical mask until June; she advocated for other women in her unit to receive masks.20 A person like this who has recently been hospitalized for pneumonia—in addition to her underlying COPD and hepatitis C—is likely to have a weakened immune system and would face an increased risk of serious illness if she were to contract COVID-19. d. Declarant C.C. is a 57-year-old man and has insulin-requiring diabetes mellitus, which places him at an elevated risk for COVID19 complications.21 He reports that his medical care for his diabetes has been erratic and inconsistent, as well as variable based
17 Id. at ¶ 41. 18 Id. at ¶ 36. 19 Declaration of Rhonda Jones, ECF No. 6-1 Ex. A-1 at ¶¶ 2–3 (“Jones Declaration”). 20 Id. at ¶ 14. 21 Declaration of C.C., ECF No. 6-2 Ex. B-2, at ¶¶ 2–3 (“C.C. Declaration”).
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on his housing in the facility.22 He was also denied a mask in midMay.23 e. Plaintiff Singleton is a 59-year-old man with hypertension. Uncontrolled hypertension places Mr. Singleton at heightened risk for COVID-19 complications. He reports that, as of June 24, he still did not have a mask. Mr. Singleton also reports requesting a COVID-19 test after experiencing symptoms related to COVID-19 during the third week of May; however, he was not tested. f. Declarant J.H. is a 51-year-old man with hypertension.24 J.H. also reports that he did not receive a COVID-19 test despite experiencing symptoms consistent with the virus and requesting a test. J.H. reports “filthy” common areas and infrequent cleaning of common surfaces, like phones, kiosks, and showers.25 He reports receiving no information about COVID-19 during his time at the jail. J.H. reports that the jail staff fails to facilitate any kind of social distancing during pill call and mealtimes.26 J.H. also reports
22 Id. at ¶ 7. 23 Id. at ¶ 23. 24 Declaration of J.H., ECF No. 6-2 Ex. B-3, at ¶ 6 (“J.H. Declaration”). 25 Id. at ¶ 18. 26 Id. at ¶ 15.
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a total absence of social distancing during his video court session prior to his release; he was actively symptomatic during that time, potentially endangering more than twenty other detainees and staff.27 g. Declarant W.L.M. is 57 years old.28 W.L.M. reports placement in a cell with an actively symptomatic individual on the very same day that his new cellmate was tested for COVID-19, but before the cellmate had his test results.29 W.L.M. reports that he was later tested for COVID-19 and tested positive, as did his cellmate. W.L.M. reports experiencing symptoms including difficulty breathing and significant weight loss.30 He reports that the jail staff failed to provide evaluation and treatment during his two weeks of severe symptoms.31 W.L.M. also reports a total absence of social distancing.32 His report is consistent with that of Plaintiff Watkins, who resides in a different housing unit, and women in
27 Id. at ¶ 31. 28 Declaration of W.L.M., at ¶ 2. I understand that Plaintiffs will file the W.L.M. declaration contemporaneously with this declaration. 29 Id. at ¶ 18. 30 Id. at ¶¶ 28–29. 31 Id. at ¶¶ 30–33. 32 See, e.g., id. at ¶ 10.
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Housing Unit 3, indicating widespread failures to maintain social distancing across the jail. B. The Clayton County Jail Has Not Complied with CDC Guidance for Managing Coronavirus Within Correctional Facilities. 30. The Clayton County Jail has not even minimally complied with CDC guidance for managing the spread of coronavirus within correctional facilities. These inadequacies—even more critical when there is a known COVID-19 outbreak—place detainees, staff, and any visitors at risk for COVID-19 infection.
i. Absence of Social Distancing 31. The Clayton County Jail is currently organized with congregate environments for sleeping, showering, toileting, and using the telephone. These environments are overcrowded such that detainees are often unable to maintain the required 6 feet of separation between each other and jail staff.
a. Declarants report that detainees are typically housed three to a twoperson cell. Given the sizes of the cells described by the declarations, double bunking would not allow for appropriate social distancing. Moreover, three detainees to a cell, under any bed arrangement, elevates the chance of transmission due to fomite, large-droplet, and small-droplet transmission.
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b. In situations where detainees could approximate 6 feet among them, the jail officers are not enforcing appropriate behavior. The jail’s practice of compelling detainees to line up a foot or two apart for meals and pill call exposes them to a high risk of contagion that can easily be avoided by acceptable distancing. Examples of congregate activity in which social distancing is not permitted include: the “pill line,” in which detainees are made to line up to receive medicine, the line for food trays, and the line to walk to the medical wing or video court. Moreover, detainees cannot use phones or other common area activities during free time while maintaining appropriate social distance.
32. Clayton County Jail also has inadequate secondary mitigation strategies, or strategies beyond that of social distancing, for COVID-19. As described herein, these include poor mask distribution, a failure to ensure frequently touched surfaces are sanitized, and the lack of distribution of educational materials about the coronavirus to detainees.
ii. Lack of Personal Protective Equipment 33. The jail failed to give most of the declarants any protective equipment until the end of May. Multiple detainees stated that they were told to create their
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own mask out of their own clothing or limited linens. Such face coverings are considered “homemade masks” by the CDC and are not considered PPE. They should only be used as a crisis capacity strategy.33
iii. Grossly Inadequate Sanitation and Cleaning 34. Declarants uniformly report rare and inadequate cleaning. They report they do not receive adequate cleaning supplies. They report they receive one broom and one mop bucket for every nearly 300-person housing unit. Detainees scramble for use of the mop bucket, which contains water that quickly becomes brown and dirty. Declarants reported the following in terms of supplies and cleaning behaviors:
a. They are given a mop bucket infrequently with no apparent bleach or other chemicals. Declarant F.S. reports that mop buckets are supplied once a week, on Mondays.34
b. Shared spaces and high-touch areas are not wiped down regularly.35
33 See Strategies for Optimizing the Supply of Facemasks, CDC, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/facemasks.html?referringSource=articleShare (last updated June 28, 2020). 34 Declaration of F.S., ECF 6-2 Ex. B-4, at ¶ 13 (“F.S. Declaration”); J.H. Declaration at ¶ 9. 35 Jones Declaration at ¶ 10.
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c. Declarants state that they are not consistently given any materials to wipe down their cells. Some report that they are occasionally given paper towels, but other times they have to use their own toilet paper.36 They are not given disinfectant spray or wipes to wipe down their cells, and, as a result, they often have to use their towel and/or their clothes to clean their surroundings.
35. There are numerous sanitation issues regarding the toilets. a. Declarants share toilets in the housing units and have complained of a lack of toilet paper as well as cleaning supplies.37 b. Multiple declarants report that toilets are broken and/or leaking. They report puddles on the floors. They routinely ask officers for blankets in the morning to soak up water.38 c. These sanitation problems present an additional COVID-19 risk because current research on coronavirus indicates that it can be aerosolized. Viruses that are aerosolized can travel and remain
36 M.B. Declaration at ¶ 10; Watkins Declaration at ¶ 24. 37 J.H. Declaration at ¶ 19. 38 Declaration of A.W., ECF No. 6-2 at Ex. B-5, at ¶ 11; Declaration of Michael Singleton, ECF No. 6-1 Ex. A-3, at ¶ 3 (“Singleton Declaration”).
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suspended in the air and remain infective over several hours and over long distances. The aerosolized coronavirus can then be spread by inhalation of the virus or fecal-oral contact.39 Open toilets, compounded by the practice of housing three people in two-person cells by having a third person on the floor, increase risk of aerosolized transmission. It is my medical opinion that the Clayton County Jail’s configuration creates a serious risk of contracting COVID-19, both in the context of the congregate restrooms and the shared toilets in each cell. iv. Inability to Maintain Personal Hygiene 36. Detainees are supplied inadequate personal hygiene supplies. a. Detainees consistently report that during the weekly hygiene distribution, they receive one or two rolls of toilet paper, a fourounce bottle of liquid soap, and a small tube of toothpaste. Some weeks there has been no hygiene distribution.40
39 See, e.g., Chen Y, Chen L, Deng Q, et al. The presence of SARS-CoV-2 RNA in the feces of COVID-19 patients, 92 J. Med. Virol. 833, 837 (2020), doi:10.1002/jmv.25825. 40 F.S. Declaration at ¶ 14.
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b. Declarant F.S. reports that despite persistent requests, it took her three days to receive a menstrual pad. And that pad was a spare pad provided by another roommate.41
37. There are consistent reports of inadequate laundry services. a. Declarants report going weeks with no sheets and sleeping directly on mattresses for weeks at a time and not having their underwear or towels laundered for weeks or months at a time.42 b. Declarant Jones reports that she had no undergarments—only her jumpsuit—for the first 6 weeks of her incarceration. Women had to buy underwear and bras by commissary.43 v. Failure to Educate or Inform Detainees
38. Detainees at the Clayton County Jail are not receiving education about coronavirus, COVID-19, or information about cleaning frequency and reentry planning. The CDC states that it is imperative that people understand if they are at increased risk for the virus.44
41 Id. at ¶¶ 15–17. 42 Singleton Declaration at ¶ 6; J.H. Declaration at ¶ 20; Watkins Declaration at ¶¶ 17–18. 43 Jones Declaration at ¶ 13. 44 See People with Certain Medical Conditions, supra note 7 (“The list of underlying conditions is meant to inform clinicians to help them provide the best
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a. Declarants consistently report lack of information from jail officers.
b. Declarants consistently report lack of information in written form.
c. Declarants consistently report that the only information they receive about the virus is from their families and from whatever limited access they have to television.
vi. Failure to Adequately Test, Isolate, or Provide Medical Care to Detainees
39. Many detainees at the Clayton County Jail are not receiving testing or treatment despite experiencing illnesses consistent with COVID-19. The declarations I reviewed are remarkably consistent on several points of inadequate care and housing.
a. Detainees consistently report poor medical care, waiting days to be evaluated by medical staff, and an inability to get tested despite typical symptoms of coronavirus. One detainee,
care possible for patients, and to inform individuals as to what their level of risk may be so they can make individual decisions about illness prevention.”) (emphasis added).
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W.L.M., was known to have COVID-19 symptoms.45 One night he experienced excruciating pain in his bowels and lungs.46 He banged on his cell door because the emergency call button didn’t work. After getting the attention of a trustee, he was told that the officers would require him to wait over six hours to seek any medical care.47 Even after doing so, he was again denied medical attention for his symptoms by a jail officer and nurse at pill call.48 W.L.M. was never seen by medical staff. b. Healthy non-symptomatic detainees report living in the same cells as symptomatic detainees, and a lack of coordinated housing for detainees with known or suspected COVID-19 status. c. One declaration reinforces many of my concerns about the jail staff’s failure to provide timely and adequate medical care to sick detainees, or to implement appropriate isolation of known
45 W.L.M. Declaration at ¶ 23. 46 Id. at ¶ 29. 47 Id. at ¶ 30. 48 Id. at ¶ 33.
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or suspected cases. In April, D.H., a trustee responsible for cleaning and distributing food trays in another housing unit, was ordered to continue working despite advising both officers and medical staff that he was experiencing multiple symptoms consistent with COVID-19.49 He describes not being tested or quarantined for weeks as he continued to shed virus around the jail, receiving no medical care despite his repeated requests, and watching as the jail failed to implement a quarantine that could help contain the virus. 40. Declarants report that the Clayton County Jail’s kiosk-based, medical request system is an ineffective way to seek medical attention or care. When a detainee is experiencing a medical problem, jail officers tell the detainee to submit a medical request through the electronic kiosk. But multiple detainees report filing medical requests when they begin feeling unwell with potential symptoms of COVID-19, only to receive extremely delayed responses. For example, Randolph Mitchell submitted one medical request when he felt the onset of potential COVID-19 symptoms and a second request about four days later when he still had
49 Declaration of D.H., at ¶¶ 4, 23–24. I understand that Plaintiffs’ counsel will file D.H.’s declaration contemporaneously with this Declaration.
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not been seen. He was not called to the medical unit until eight days after his first request, and even then, he was not tested for COVID-19 before being sent back to his cell.50 Michael Singleton and other declarants report similar problems.51
41. In other circumstances, the medical request system is simply unavailable. One medically vulnerable declarant reported that the jail staff took away her ability to use the kiosk for an alleged disciplinary infraction and, weeks later, still had not yet given it back.52 Since the kiosk is the only way for a detainee to submit a medical request, the woman was in the unfortunate position of being unable to bring any COVID-19 symptoms or other medical issues to the attention of the jail’s medical staff.53
42. These reported deficiencies in the medical request system are concerning because they inhibit timely and accurate communication between detainees and jail staff about issues that impact detainee and jail health.
50 Declaration of Randolph Mitchell, ECF 6-1 Ex. A-2, at ¶¶ 13–16 (“Mitchell Declaration”). 51 Singleton Declaration at ¶¶ 7, 10. 52 M.B. Declaration at ¶ 19. 53 Jones Declaration at ¶¶ 16–21.
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VI. Medically Vulnerable Detainees in Particular Face Severe Health Risks if Protective Measures Are Not Taken. 43. If medically vulnerable detainees are not released as soon as possible,
in a matter of days, rather than weeks, they are at risk of infection, sequelae such as long-lasting and permanent organ damage, and even death. Survival from COVID19 does not guarantee a life free from damage from the virus. Long-term effects of COVID-19 infection include the following:
a. Lung scarring and decreased lung capacity; b. Stroke, embolism, and blood clotting disorders, which may
result in permanent disabilities and amputations; c. Heart damage, including cardiomyopathy and enlarged,
ineffectively pumping hearts; d. Neurological deficits, psychological deficits, and mental
illness;54 44. Many of the detainees in the Clayton County Jail already have these deficits; infection with coronavirus could cause additional permanent damage and impairment.
54 See, e.g., Lois Parshley, The Emerging Long-Term Complications of Covid-19, Explained, Vox (June 12, 2020), https://www.vox.com/2020/5/8/21251899/coronavirus-long-term-effectssymptoms.
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VII. Summary and Recommendations A. Summary of Findings
45. In my review of the declarations, there are few indicators that the Clayton County Jail is taking action to protect detainees, staff, or visitors from infection from coronavirus. Without such actions, this infection can progress to permanent physical damage and illness and even death.
46. There is one area of recent partial compliance with CDC guidelines: a. The declarations indicate an apparent start of distribution of face masks to detainees. However, they do not indicate whether this distribution has been universal or how often masks are cleaned or changed. Face masks should be clean and worn by all detainees.55 Face masks should also be replaced on an asneeded basis whenever they show signs of soiling or wear. The World Health Organization provides additional guidance on when and how to change a mask.56
55 See Interim Guidance, supra note 2 (“Because many individuals with COVID-19 do not have symptoms, it is important for everyone to wear cloth face coverings in order to protect each other.”). 56 How to Wear a Non-Medical Fabric Mask Safely, World Health Organization, https://www.who.int/images/default-source/health-topics/coronavirus/clothingmasks-infographic---(web)-logo-who.png?sfvrsn=b15e3742_16 (instructing
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47. There are several areas of noncompliance with CDC Guidelines: a. Lack of social distancing, which is the essential primary mitigation strategy. Declarant housing units are too populated to support social distancing. Detainees are not routinely instructed to maintain a safe distance, and in many cases are ordered to line up closely to one another to receive basic necessities like food or medication. b. Lack of provision of any protective equipment until late May/early June. For months, Jail administration and staff acted particularly callously by telling detainees to wear a facial covering but requiring them to create their own. According to the declarations I have reviewed, it was not until late May or early June before masks of any sort were provided, and then some detainees report they were only reluctantly replaced when damaged or ineffective. c. Shortfalls in secondary mitigation, particularly the facility’s sanitary conditions. Detainees report that cells and housing
individuals not to wear face masks that are wet, dirty or damaged) (last visited July 14, 2020).
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units are filthy and have plumbing leaks that promote a baseline of unsanitary conditions. These conditions are unsafe under any circumstances but are particularly dangerous in light of the COVID-19 pandemic. There are inadequate cleaning supplies. d. Poor compliance with personal hygiene standards. As referenced throughout this document, the CDC has clear guidelines for routine hygiene and laundry practices—including how to launder institutional items and what protective equipment to wear while doing so.57 This implies that laundering is done on a regular basis. However, the declarations indicate that this is not being done in Clayton County. Detainees state that towels, linens, and jumpsuits are dirty, and detainees go weeks to months at a time without them being laundered. Moreover, many report having to use their towels for personal hygiene, as face coverings, and for cell cleaning. The CDC recommends a “sufficient supply of soap for each individual,” but the detainees consistently report a lack
57 See CDC Interim Guidance, supra note 2. 35

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of soap.58 Detainees also report that they often have to use their body soap to clean their cells and wash their clothes. However, the CDC recommends that soap used for personal hygiene be separate from soap used for other purposes. e. Inadequate and inconsistent education and information regarding the virus provided to detainees. Trustees do not report readily available instructions for cleaning, and only report a few very recent signs asking trustees to wear masks and socially distance (which is not possible in their dorms). Other detainees report a lack of posted signs or other information materials about how to reduce exposure to the coronavirus, and instead report relying on friends and family for information. f. Inadequate testing for diagnostic purposes. Medical staff and correctional staff cannot rely only on temperatures to identify people who are infectious and may be shedding the virus to others. Symptomatic detainees are not promptly tested. When detainees test positive for coronavirus, the institution should partner with public health authorities to perform contact
58 Id. 36

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tracing. Contract tracing identifies those detainees and staff who have been in close contact in recent days with the infected person. This provides information for prompt quarantining and monitoring of asymptomatic individuals who may already be infected and are unknowingly spreading the virus. Broader testing and robust contact tracing will allow the jail to identify breakouts in housing units and allow minimization of the spread of the virus. g. No consistent approach to housing detainees based on their known COVID-19 status. Detainees are not consistently housed or moved based on signs, symptoms, or testing. Detainees report infections, and what are likely reinfections, based on lack of cohorting, lack of effective isolation/quarantine, and lack of prompt medical intervention.59
59 However, detention facilities should also avoid complete isolation of detainees whenever possible without concomitant safety procedures. If part of a COVID-19 containment or response strategy involves isolation of detainees, as in Clayton County, the detention facility must acknowledge this requires increased monitoring of detainees’ safety, detainees’ mental health, and suicidality wellness checks, and should thus increase staffing accordingly. When a jail fails to take such measures, as Clayton County jail has, administrators place detainees’ physical and mental health at serious risk.
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48. The Clayton County Jail remains an incubator for the coronavirus and current practices ensure that people within the facility are not only a risk to themselves, but that they are also a profound risk to the surrounding county and its scarce healthcare resources.
B. Recommendations 49. In my opinion, Clayton County Jail needs to move as quickly as possible, in a timeline of days, rather than weeks to:
a. Release as many medically vulnerable detainees from Clayton County Jail as soon as possible. There is no effective way to eliminate risk for medically vulnerable detainees in the jail. The best chance for medically vulnerable detainees to survive the pandemic is to release them from the jail so they can practice social distancing. Delays will result in more infections among detainees and staff, more advanced disease, more disease brought back to the community, and preventable disease and death.
b. Reduce the remaining population to best approximate social distancing. Enough detainees should be released so that the
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remaining detainees in the Jail can more closely approximate social distancing as defined by the CDC. c. Enforce other CDC guidelines to reduce the risk of infection and sequelae through strict adherence to use of PPE, cleaning, and hygiene practices by all in the jail environment, including detainees, correctional staff, medical staff, vendors, and other visitors. This includes, but is not limited to:
i. Posting clear signage in multiple languages around the jail to educate individuals on symptoms of COVID-19, procedure for reporting any such symptoms, and preventative measures to slow or stop the spread of COVID-19;
ii. Providing adequate face masks to all staff and detainees, mandating their use, and cleaning or replacing them regularly;
iii. Supplying detainees with adequate materials for intensified cleaning and disinfection practices;
iv. Ensuring that all frequently touched surfaces are sanitized between uses or, at minimum, multiple times per day;
v. Performing COVID-19 diagnostic tests for all newly admitted individuals at the Clayton County Jail so long as there is at least moderately sustained community transmission;
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vi. Ensuring all detainees receive medical evaluation, testing, and treatment at the first signs of COVID-19 symptoms; and
vii. Implementing proper medical isolation and prompt testing of confirmed and suspected cases and adequate quarantine of any close contacts thereof.
I swear under penalty of perjury that the information given herein is
true and correct, and I understand that a false answer to any item may result in a
charge of false swearing.

__________________

July 23, 2020

Fred Rottnek, MD, MAHCM Professor and Director of Community Medicine, Department of Family and Community Medicine Saint Louis University Board-certified in Family Medicine and Addiction Medicine Professor and Medical Director, Doisy College of Health Sciences, Physician Assistant Education Program Professor, School of Law, Center for Health Law Studies

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ATTACHMENT A

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Education Postgraduate training: • Certified Correctional Health Professional-Physician Recognition, National Commission on Correctional Health Care • Certified Correctional Health Professional, National Commission on Correctional Health Care • Behavioral Health and Justice Leadership Academy • Master of Arts in Health Care Mission, Aquinas Institute of Theology • Fellowship, University of North Carolina at Chapel Hill • Residency, Family Medicine of Saint Louis (Deaconess Hospital) • Graduate Studies in Secondary Education/Teaching Certification, University of Missouri, Saint Louis

2015 -Present 2013 -Present
2016 - 2018 2001 - 2004
1998 - 1999 1995 - 1998 1987 - 1988

Medical education MD, Saint Louis University

1991-1995

Undergraduate education BS, Furman University

1982-1986

Previous Professional Experience Adjunct Assistant Professor, Saint Louis University, School of Medicine Volunteer Clinical Assistant Professor, Saint Louis University, School of Medicine

2008 - 2010 2000 - 2008

Hospital and Clinical Staff Appointments Saint Louis University Hospital—Associate/Courtesy Staff Saint Louis, Missouri Director of Community Medicine, Institute for Family Medicine, Saint Louis, Missouri Vice President and Chief of Medical Operations, Institute for Family Medicine, Saint Louis, Missouri Faculty Physician, Family Medicine of Saint Louis, Forest Park Hospital, Saint Louis, Missouri Intern and Resident, Family Medicine of Saint Louis, Deaconess (Forest Park) Hospital, Saint Louis Missouri

2010 – Present 2000 - 2009 2006 - 2007 1998 - 2005 1995 - 1998

Board Certification and Licensure Fellow, American Academy of Addiction Medicine Addiction Medicine Family Medicine Fellow, American Academy of Family Physicians

2019 – Present 2018 – Present 1998 - Present 2005 - Present

Professional Society Memberships International Association of Medical Education and Research in Substance Abuse Physicians for Human Rights Amnesty International Society of Teachers of Family Medicine

2017- Present 2006 - Present 2002 - Present 1998 - 20018

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National American Society of Addiction Medicine Academy of Correctional Health Professionals Society of Correctional Physicians Health Care for the Homeless Clinicians Network American Academy of Family Physicians

2016 - Present 2013 - 2018
2012 - Present 1997 - Present 1991 - Present

Honorary Societies, Honors and Awards NCADA (National Council on Alcohol and Drug Abuse) St. Louis, Pioneer Award Academy of Medical Educators, Saint Louis University School of Medicine Leonard Tow Humanism in Medicine Award presented by the Arnold P. Gold Foundation Michael J. Garanzini Award in Recognition of Outstanding Community Service Distinguished Teacher Award 2017 Saint Louis University School of Medicine MD Degree Program: Humanism, Saint Louis University Health Protection and Education Physician Educator Award Saint Louis University Student Development Collaborative Partner Award Saint Louis Metropolitan Medical Society Arthur Gale, MD Writer’s Award Honorary Induction into the Pre-Medical Honor Society, AED Missouri Beta Chapter: Saint Louis University SLU Star, Saint Louis University 2012 Clelia Merloni Award, Apostles of the Sacred Heart of Jesus Physician of the Month: Family Medicine Interest Group, American Academy of Family Physicians Distinguished Teacher Award 2011 Saint Louis University School of Medicine MD Degree Program: Humanism, Saint Louis University 2011 Greater Saint Louis Community Health Award, Saint Louis Academy of Family Physicians Covenant House Missouri Volunteer of the Year Award 2008, Covenant House Missouri James F. Hornback Ethical Humanist of the Year Award, 2006, The Ethical Society of Saint Louis Pacesetter Award, University City School District Salvation Army Volunteer of the Year 2000, Central Territory, Salvation Army Salvation Army Volunteer of the Year 2000, Midland Territories, Salvation Army Salvation Army Volunteer of the Year 2000, Missouri-Illinois Region, Salvation Army Pacesetter Award, University City School District Resident Teacher Award, The Society of Teachers of Family Medicine Salvation Army Beacon Award, Salvation Army Mead-Johnson Award for Excellence in Graduate Education, Mead-Johnson and the American Academy of Family Physicians Family Health Foundation of Missouri Scholarship Award, Family Health Foundation of Missouri Summa cum laude, Furman University

2020
2019 2018
2017
2017
2016 2015 2015 2014
2013 2012 2012
2011
2011
2008
2006
2000 2000
2000
2000
1998 1998 1997 1997
1995
1986

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George Sampey Award in Chemistry, Furman University Phi beta kappa, Furman University Phi eta sigma, Furman University

1986 1985 1983

Professional Service

University Mission Liaison, Office of Mission and Identity Committee Member, Sexually Transmitted Infections Regional Response Coalition Chair, Higher Education Learning Collaborative, Working Group on Alive and Well STL Higher Learning Commission Mid-Cycle Accreditation Review Committee on Mission Faculty Representative, Saint Louis University Trustee Committee on Mission and Ministry On-Call Physician Services, Xavier Winter Inn, Social Ministry, St. Francis Xavier (College) Church Task Force Member, Saint Louis County Department of Health SubSpecialty Care Contract Bid Strategic Planning Working Group for SLU as Social Justice Entrepreneur Higher Education Collaborative (Representing SLU on Health Care) Conference-Related, Exploring Pedagogy of Interprofessional Education to Improve Teamwork and Patient Outcomes: Planning Committee

2016 - 2018 2015 - 2017
2015 - 2016
2014 - 2016
2013 -2016
2010 - 2016
2013
2014-2015 2014-2015 2012

Medical School Co-Director, Urban Community Health Track SLUCare Provider Opioid Advisory Working Group Strategic Planning Committee
• Education Subcommittee (Co-chair)
• Overarching Goals Subcommittee Committee Member, Curriculum Committee Committee Member, Pre-Clinical Curriculum Sub-Committee Admissions Committee

2018 - Present 2018 – Present 2017 – Present 2017 – Present 2017 – Present 2013 – Present 2017 – Present 2009 - 2015

Department Chair, Faculty Promotion and Tenure Committee Member, Faculty Promotion and Tenure Committee Member, Saint Louis University, Family and Community Medicine Leadership Committee Faculty Mentor, Physicians for Human Rights: SLU Chapter Program Director, Coe Distinction in Community Service Faculty Mentor, HIV Prevention Task Force Faculty Mentor, SLU Chapter of Physicians for Human Rights Medical Director, Area Health Education Program Office Faculty Advisor, Child Abuse Prevention Task Force

2014 - Present 2013 - Present 2012 - Present
2010 - Present 2010 - Present 2008 – Present 2008 - Present 2008 - 2013 2008 - 2013

Editorial and Journal Review Boards Committee Member, Catholic Health Association, Editorial Committee of Health Progress

2015- Present

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Ad Hoc Reviewer, Family Medicine Ad Hoc Reviewer, Journal of Interprofessional Practice Ad Hoc Reviewer, on-line cases for Family Medicine student education, fmCASES, Society of Teachers of Family Medicine
Community
National Opioid Response Network—Technical Assistance Center,
Clinical Consultant and Training The ARCHway Institute Provider Clinical Support Services Trainer for Buprenorphine Waiver Advisory Board, Campaign for Trauma Informed Policy and Practice (CTIPP)
Regional Subcommittee Chair, Opioids and Chronic Pain, SSM Opioid Stewardship Project

2014 – Present 2014 - Present 2010
2020 - Present 2019 - Present 2019 - Present 2018 - Present
2018 - Present

State Committee Member (Invited) Missouri Department of Health and Senior Services’ Opioid Policy Advisory Council Board of Directors and Treasurer, Alive and Well Communities

2017 – Present 2017 – Present

Local

Search Committee for CEO, St. Louis Regional Health Commission

2019

Committee Member, Saint Louis Integrated Health Network, IHN Service

2015 - 2016

Line Advisory Committee

Board of Directors, Criminal Justice Ministry of Saint Louis

2013 - 2019

Commissioner, Saint Louis Regional Health Commission

2013 - Present

Committee Member, Saint Louis Integrated Health Network, IHN Clinical 2013 - Present

Team for Network-Academic Partnerships

Speaker and Facilitator, Community Night, Vincentian Mission Corps

2012 - Present

Committee Member, Sexually Transmitted Infections Regional Response 2015 - 2017

Coalition

Committee Member, Saint Louis Regional Health Commission Specialty

2013 - 2014

Care and Transportation Short-Term Crisis Planning Team

Task Force Member, Saint Louis Regional Health Commission, Health Status 2011 -2013

Reporting Task Force

Board of Advisors, Criminal Justice Ministry, Society of Saint Vincent de 2011 - 2013

Paul

Speaker and Facilitator, Community Night, Gateway Vincentian Volunteer 2005 - 2011

Sunday Presenter, Patriotism and Public Health Policy, The Ethical Society 2007

of Saint Louis

Board of Directors of a Company, Gateway Vincentian Volunteers

2003 - 2006

Sunday Presenter, The Vocabulary of Morality and the Common Good, The 2006

Ethical Society of Saint Louis

Site Supervisor for Volunteer, Gateway Vincentian Volunteers

2001 - 2003

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Washington University Lecturer for Medical Student Orientation, Washington University School of Medicine Lecturer for Criminalization of Poverty Course in the Brown School (Linda Raclin) focus on Correctional Health Care Lecturer and Site Coordinator for Criminal Justice Course in the Brown School (Carrie Pettus-Davis) focus on Juvenile Certification and Sentencing (Product of Fall 2014 semester: Amicus brief addressing need to readjudicate cases of certified juveniles given a life-without-parole sentence filed in the Missouri Supreme Court on December 1, 2014) Thesis Committee Member, Masters of Science in Clinical Investigation, Washington University, Thesis Committee, Philip Wenger, PharmD Lecturer and Tour Guide for Mental Health and Public Policy Course in the Brown School (Bethany Johnson-Javois) Expert Panel Member for Grant, Innovative Reentry Model for Adult Males with Substance Abuse and Trauma History (Carrie Pettus-Davis) Mental Health Awareness Week Speaker, Washington University School of Medicine Mental Health Outreach Program Speaker and Tour Guide at Buzz Westfall Justice Center, Washington University School of Medicine

2004 – 2017 2015 - 2017 2013 – 2015
2013 2013-2016 2013 2013 2013-2015

Other

Reviewed medical records and testified for Prosecuting Attorney, Medical Consultation to Saint Louis County Prosecuting Attorney Reviewed medical records and testified for County Counsel, Medical Consultation to Saint Louis County Counsel

2010 - 2016 2001 - 2016

Current and Past Teaching Responsibilities Courses and Lectures or Topics: Law and the Opioid Epidemic (School of Law) SOM Curricular Thread in Pain Substance Use, and Addictions Clinical Interviewing (Course Director, Lecturer, and Small Group Leader) Integrative Interprofessional Practicum Experience EPI-100 Epidemiology and Biostatistics FCM-430 Interprofessional Team Seminars (Course Director and Small Group Leader) FCM-431 Integrative Interprofessional Practicum SALC-104 Vulnerable Populations SALC-117 Corrections Med / Juvenile Detention Introduction to Interprofessional Health Care (Grand Rounds Panelist) ACS1-100 Applied Clinical Skills 1 FCM-301 Family Medicine Clerkship

Spring 2020 2017 - Present 2017- Present 2009 -2018 2008 - 2017 2008 - Present
2008 - 2018 2008 - 2018 2008 - 2018 2008 – Present 2008 - 2016 2008 - 2012

Clinical Teaching Responsibilities: Community Medicine Rotation, Saint Louis University Family Medicine Residency

2010 - 2016

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Protégé: Medical Students Advised/Mentored (include students in the Rodney M. Coe Distinction in Community Service Program, academic advisees, and students in the Service and Advocacy Learning Community Electives) 2009-2020 - 25 2018-2019 - 25 2017-2018 - 25 2016-2017 - 25 2015-2016 - 25 2014-2015 - 25 2013-2014 - 25 2012-2013 - 25 2011-2012 - 50 2010-2011 - 50 2009-2010 - 50 2008-2009 - 50

Faculty Advisor for Family Medicine Residents

Daniel Stevens, DO Ritesh Ghandi, MD Joseph Moleski, DO Matthew Witthaus, MD Imani Anwisye, MD

July 2017 – June 2020 July 2016 – June 2019 July 2015 – June 2018 July 2013 – June 2018 July 2012 – June 2015

Faculty Mentor Jennifer Bello-Kottenstette, MD Emily Doucette, MD

July 2016 - Present July 2015 – June 2016

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Contracts, Grants and Sponsored Research:
Medical Services at the 22nd Court Juvenile Division--Detention Program, Funded by City of St. Louis (July 1, 2020 - June 30, 2021), awarded July 1, 2020 ($40,040.00), Funded In Progress, Summer 2020, PI Fred Rottnek MD, MAHCM with Kelsey Fouch, PA-C
Rottnek, Fred W. (Principal), " Peer to Peer (P2P) Recovery Community Services Program, Sponsored by NCADA - Saint Louis, $133,861.00. 0.3 FTE, April 30,2020—April 29, 2024 (Under review)
Rottnek, Fred W. (Principal Investigator), Saint Louis University Addiction Medicine Fellowship, sponsored by Missouri Foundation for Health, $880,000. 0.02 FTE, January 1, 2020 to December 31, 2022
Rottnek, Fred W. (Principal Investigator), Opioid Workforce Expansion Grant, Health Resources and Services Administration, $1,050,000. 0.02 FTE, October 1, 2019 to September 30, 2022
Rottnek, Fred W. (Principal), Consultant, Medical Director, Assisted Recovery Centers of America, 0.3 FTE, March 1, 2018 to present.
Rottnek, Fred W. (Principal), "State Targeted Response to the Opioid Crisis Grants (Opioid STR)," Sponsored by University Of Missouri - Saint Louis, $133,861.00. 0.3 FTE, May 1, 2017 - April 30, 2019, extended through September 30, 2020 to include funding of the Addiction Medicine fellow for AY 2019-2020
Rottnek, Fred W. (Principal), Consultant, Health Services, Concordance Academy of Leadership, April 1, 2016 to present.
Sweetman, Leah M., Rottnek, Fred W., McCarthy, Patrick G., Chawszczewski, Susanne A., Everard, Kelly M. (Principal), Bishop, Jeffrey P., "Medical School Faculty Reconnecting to Mission of SLU," Sponsored by Lilly Fellows Program, $3000.00, 2017-2018.
Pole, D. C. (Key Personnel), Schneider, F. D. (Principal), Pole, D. C. (Key Personnel), Rottnek, F. W. (Key Personnel), Everard, K. M. (Key Personnel), Wiethop, N. A. (Other), 15985, Proposal, "Area Health Education Centers Point of Service Maintenance and Enhancement Awards", Health Resources & Services Administration, Federal Government, $193,097.00, Funded.
Rottnek, F. W. (Key Personnel) provided initial and on-going administrative support to support the successful bid for the SLUCare-Saint Louis County Department of Health Specialty and Subspecialty Contract. (August 2013 to September 2016)
Rottnek, F. W. (Key Personnel) and Schneider, F. D. (Principal) Family and Community Medicine contract with the Saint Louis County Department of Health to provide 0.6 FTE of family physician services (as well as administrative and medical director services) to Corrections Medicine and the South County Health Center (January 2010 – September 2016 for former site; March 2013 – March 2014 for latter)
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Bibliography Journal Articles. Rottnek, F., & Scherrer, J. F. (2019). Buprenorphine in primary care: perspectives on clinical and research priorities. FAMILY PRACTICE, 36(6), 677–679. Rottnek, F.W. (2019) What’s Next When “Just Say No” Just Doesn’t’ Work? The Role of Harm Reduction in Preventing and Treating Addictions. Catholic Health Association of America, July-August 2019. Davis, D., Bello-Kottenstette, J, & Rottnek, F. (2018). Care of Inmates, American Family Physician. Nov 15;98(10):577-583. Rottnek, F. W. (2018) Informed hope: chaplains’ powerful tool in the opioid epidemic. Vision, the journal of the National Association of Catholic Chaplains, June 2018. https://www.nacc.org/vision/may-june-2018/informed-hope-chaplains-powerful-toolin-the-opioid-epidemic/ Rottnek, F. W. (2018). Opioids—One More Epidemic for Catholic Health Care. Catholic Health Association of the United States, March-April, 2018. van den Berk-Clark, C., Doucette, E., Rottnek, F., Hughes, R., Manard, W., Lawrence, T., Prada, M., & Schneider, F.D. (2017). Do patient-centered medical homes improve health behaviors, outcomes and experiences of low income patients? A systematic review and metanalysis. Health Services Research. DOI:10.1111/1475-6773.12737. PMID: 28670708 Pole, D. C., Rottnek, F. W. (2017). Teaching the Art of Collaborative Practice. Catholic Health Association of the United States, September 2017. Rottnek, F.W. (2016) How Can Our Communities Move Ahead after Ferguson? Health Progress, Catholic Health Association of the United States , July-August, 2016. Rottnek, F. W. (2015). Creating Correctional Health Care: Academic Partnerships. CorrDocs, American College of Correctional Physicians, 18(4), 12-13. Wenger, P. J., Rottnek, F. W., Parker, T. T., Crippin, J. S. (2014). Assessment of Hepatitis C Risk Factors and Infection Prevalence in a Jail Population. American Journal of Public Health, 104(9), 1722-1725. Everard, K. M., Crandall, S. J., Blue, A. V., Rottnek, F. W., Pole, D. C., Mainous, A. G. (2014). Exploring interprofessional education in the family medicine clerkship: a CERA study. Family Medicine. 46(6), 419-422. Rottnek, F. W., Pole, D. C., Everard, K. M. (2014). The Interprofessional Team Seminar: A Curriculum Designed for Medical Students. Journal of the National AHEC Organization. 30(Spring), 16-22. Rottnek, F. W. Correctional Health Care: A Forgotten Ministry of the Church. Health Progress, May-June 2014. Rottnek, F. W., Yanofchick, B. (2012). Physicians and Catholic Health Care: Educating Doctors for Mission Fit. Health Progress Rottnek, F. W. (2011). Medical Release Summary, State of Missouri Department of Corrections. Rottnek, F. W. (2010). I Don't Love Medicine; I Love What I Can Do With It. Missouri Family Physician. Searight, H. R., Abby, S. L., Rottnek, F. W. (2001). Conduct Disorder: Diagnosis and Treatment in Primary Care. American Family Physician (2001), 1579-1590. Searight, H. R., Burke, J. M., Rottnek, F. W. (2000). Adult Attention Deficit Disorder (AD/HD): Evaluation and Treatment in Family Medicine. American Family Physician (2000), 20772085. Rottnek, F. W. (1999). Medication for Adult Attention Deficit/Hyperactivity Disorder. In Jones, C. B. (Ed.), Parent Articles About ADHD. Psychological Corporation.
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Publications in the Society of Teachers of Family Medicine Digital Resource Library Rottnek, F. W. (2011). Every Medical Student Should Go To Jail. Society of Teachers of Family
Medicine. Rottnek, F. W., Pole, D. C., Meyer, A. (2011). Is a Catholic Mission Statement Good for Medical
Education? Reclaiming Institution Tradition for Professional Formation. Pole, D. C., Rottnek, F. W., Meyer, A. (2011). In Pole, D. C. (Ed.), You Scratch My
Back...Cementing a Community-University Partnership. Rottnek, F. W., Pole, D. C. (2010). Folding Medical Students into the Mix.

Magazine Articles Rottnek, F.W (2018) Dead People Don’t Recover. A Matter of Spirit Summer 2018, 4-5
http://www.ipjc.org/wp-content/uploads/2018/05/AMOSSummer-2018-Web.pdf Rottnek, F.W. (2017) Michael Brown and HIV Criminalization. St. Louis American, August
14, 2017. http://www.stlamerican.com/news/columnists/guest columnists/michaeljohnson-and-the-criminalization-of-hiv/article 6af73598-80f7-11e7-99afc7d64bc371ca.html Rottnek, F. W. (Ed.), Addiction Medicine in the 21st Century (Spring 2017 ed.). Saint Louis: Missourians for Single Payer Health Care Rottnek, F. W. (2017). How 15 Years in Jail Transformed My Theology (51st ed., pp. 48-49). Conversations in Jesuit Higher Education. Rottnek, F. W. (2016). In Sokol, B. W. (Ed.), Is Zika a clinical--and pastoral--game changer? (April 22, 2016 ed., pp. 6-7). Saint Louis: Saint Louis University. Rottnek, F. W. (2015). A Step Backward in Racial and Health Disparities: Saint Louis County Puts Correctional Health Care Out for Bid (Fall 2015 ed., pp. 4-5). Saint Louis, Missouri: Missourians for Single Payer Health Care Rottnek, F. W. (2015). How Trauma and Toxic Stress Impact Health. St. Louis Metropolitan Magazine. April/May Issue. 16-19.

Abstracts and Posters "The Value of an Orientation Community Service Day for Incoming Medical Students", Central Group on Educational Affairs, Association of American Medical Colleges "Case-control evaluation of risk factors associated with hepatitis C infection in a correctional facility.", Midyear Meeting 2012, ASHP, American Society of Health-System Pharmacists "PA Students: Finding the Right Niche for Interprofessional Education", 20th Annual Clinical and Professional Poster Session, American Association of Physician Assistants

March 2013 December 2012
June 2011

Supplemental Material

National-level Presentations “The Opioid Epidemic and Trauma: This is Your Brain on Drugs; This is Your Brain on Trauma “, 20th Annual Southern States Victim Assistance Conference, Fort Lauderdale, Florida (Invited) Opioids”, Pediatric Update, Volume 39, Issue 6 “This is Your Brain on Drugs. This is Your Brain on Trauma.” National Center for Domestic Violence, Trauma, and Mental Health (a division of the Substance Abuse and Mental Health

August 2019
December 2018 October 2018

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Administration) and the Campaign for Trauma-Informed Policy and Practice, jointly-sponsored national webinar (Invited) http://www.nationalcenterdvtraumamh.org/trainingta/webinarsseminars/2018-trauma-opioids-and-domestic-violence/ “What Can We Learn from Our Founders about the Opioid Epidemic” Catholic Health Association Webinar Ethics Webinar (Invited) “The Missouri Opioid State Targeted Response: What Missouri is Doing and Why” Dean’s Conference of Midwest Osteopathic Medical Schools (Invited) “Operationalizing Mission is a Jesuit School of Medicine” Association of Jesuit Colleges and Universities’ Commitment to Justice in Higher Education Conference 2019"Updates in Medication Assisted Therapies for Substance Use Disorders", 2017 Saint Louis University Physician Assistant Continuing Education Conference, Saint Louis University Physician Assistant Program "Why Should You Care About Correctional Health Care", Saint Louis University Public Health Fair, Saint Louis University "Trauma-Informed Practice in Primary Care Panel", Academy of Violence and Abuse Regional Summit, Saint Louis University "FORECAST", National Child Traumatic Stress Network FORECAST, University of Missouri--St. Louis "Repeal and Replace: Potential Consequences of Repeal of the Affordable Care Act for the LGBTQ+ Community", 12th Annual Midwest LGBTQ Law Conference, Washington University "Do patient-centered medical homes improve health behaviors, outcomes and experiences for low income patients? A systematic review.", 49th Annual Spring Conference, Society of Teachers of Family Medicine "Developing a research question: Steps for research success from the idea to publication", 2015 Medical Student Education Conference, Society of Teachers of Family Medicine "Evaluation of an Interprofessional Team Seminar Course in Preparing Medical Students for Interprofessional Collaborative Practice", 2015 Medical Student Education Conference, Society of Teachers of Family Medicine "Maintaining Professional Focus and Mission in Correctional Health Care", National Conference, National Commission on Correctional Health Care "Evaluation of an Interprofessional Team Seminar Course in Preparing Medical Students for Interprofessional Collaborative Practice", Evaluation of an Interprofessional Team Seminar Course in Preparing Medical Students for Interprofessional Collaborative Practice, NAP Annual Meeting & Forum "Interprofessional Collaborative Practice: The Nuts and Bolts of Interprofessional Collaborative Practice in Correctional Health Care", Saint Louis University Model of Interprofessional Education, University of New England

July 2018 March 2018 August 2017
April 2017
April 2017 March 2017 March 2017 March 2017
April 2016
February 2015 February 2015
October 2014 April 2014
June 2013

March 2020/Page 11

Case 1:20-cv-02791-ELR-CCB Document 19-3 Filed 07/27/20 Page 54 of 59

"Interprofessional Grand Rounds", Saint Louis University Model of Interprofessional Education, University of New England "The Interprofessional Team Practicum", Saint Louis University Model of Interprofessional Education, University of New England "Transitioning to Community Interprofessional Practice: Making it Work", Saint Louis University Model of Interprofessional Education, University of New England "The Saint Louis University Model of Interprofessional Education", Saint Louis University Model of Interprofessional Education, University of New England "Exploring Poverty Simulation in Medical Education", Primary Care Research Symposium, Saint Louis University "Write effective standing orders interprofessionally to increase productivity, efficiency and job satisfaction", National Commission on Correctional Health Care Spring Conference 2013, National Commission on Correctional Health Care "Creating Value for IPE with Medical Students: Lessons Learned from the Interprofessional Team Seminar", Exploring Pedagogy of Interprofessional Education to Improve Teamwork and Patient Outcomes, Saint Louis University Center for Interprofessional Education and Research "The Interprofessional Management Team Meeting: An IPCP Approach to Health System Improvement", Exploring Pedagogy of Interprofessional Education to Improve Teamwork and Patient Outcomes, Saint Louis University Center for Interprofessional Education and Research "Writing an Interprofessional Patient Case Study Interprofessionally", Exploring Pedagogy of Interprofessional Education to Improve Teamwork and Patient Outcomes, Saint Louis University Center for Interprofessional Education and Research "Academic Medicine in Family Medicine", National Conference, American Academy of Family Physicians "Harnessing the Energy of Medical Student Interest Groups", National Conference, American Academy of Family Physicians "Is a Catholic Mission Statement Good for Medical Education? Reclaiming Institutional Tradition for Professional Formation", 37th Annual Spring Conference on Medical Student Education, Society of Teachers of Family Medicine "You Scratch My Back...Cementing a Community/University Partnership", 37th Annual Spring Conference on Medical Student Education, Society of Teachers of Family Medicine "Effects of a Summer Preceptorship Program on Student Interviewing Skills", 36th Annual Spring Conference on Medical Student Education, Society of Teachers of Family Medicine "Folding Medical Students into the Mix: The Interprofessional Team Seminar", 36th Annual Spring Conference on Medical Student Education, Society of Teachers of Family Medicine "Cultivating Wholeness and Connectedness for Spiritual Health", 23rd Annual Westberg Parish Nurse Symposium, International Parish Nurse Resource Center

June 2013 June 2013 June 2013 June 2013 April 2013 April 2013
November 2012
November 2012
November 2012
July 2012 July 2012 January 2011
January 2011 January 2010 January 2010 September 2009

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Regional-level Presentations United Way sponsored opioid presentations at Isothermal Community College in Forest City, NC—community stakeholders, class of Critical Response Course, and Child Protective Services Mercy John V. King Symposium Family Medicine CME, “Striking When the Iron is Hot: How, Where, and When to Initiate Medication Treatment for SUDs” (Invited) “The Role of Medications in the Treatment of Substance Use Disorders”, Ohio State University (Marion) (Invited) Provider Clinical Support Services Buprenorphine Waiver Trainings, multiple, across the state “Treatment Goals with Patients with OUD”: Gateway College of Clinical Pharmacy Annual Clinical Jamboree, St. Louis College of Pharmacy “Introduction to OUD for Pain Management Nursing”, St. Louis Chapter of the American Society of Pain Management Nursing Alcohol Use Disorder Treatment in Primary Care, ECHO Presentation, University of Missouri-Columbia “Why I Had to Invest in a Trauma Informed Lens for My Work and My Life”, Healing and Resilience: The Journey Forward, Behavioral Health System Baltimore (Invited) “The Opioid Epidemic is a Patient Safety Issue”, SSM Regional 2018 Patient Safety, Quality, and Regulatory Conference, Building the Plane While Flying It: The Evolving Role of PSQ at SSM Health (Invited) “How Do We Achieve Health and Wellness in Recovery?”, Dimensions of Recovery, Washington University (Invited) “Medications for Opioid Use Disorder: Improving Individual and Community Health with Client-Centered Treatment”, Bi-State Infectious Disease Conference (Invited) “Myths and Facts about Drug Infectivity”, Bureau of HIV, STD, and Hepatitis, Missouri Department of Health, Disease Intervention Specialists (Invited) “Shutting Down the Prison to Emergency Department Pipeline: How Can We More Effectively Work with Community Resources for Successful Reentry”, SMART (Southeast Missouri Area Reentry Conference) Plenary Address (Invited) "How 15 Years in Jail Transformed My Theology", SLU First Friday Mass and Lecture, Saint Louis University Mission and Identity (Invited) "HIV Criminalization", Saint Louis University School of Medicine Noon Conference, Saint Louis University Chapter of Physicians for Human Rights "Lessons Learned during the Year Saint Louis County Put Correctional Health Care Services Out for Bid", Missourians for

February 2020
October 2019 September 2019
2018 – Present July 2019 June 2019 May 2019
March 2019 October 2018
October 2018 October 2018 October 2018 October 2016
May 2016
January 2016 January 2016

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Single Payer Monthly Meeting, Missourians for Single Payer and the Ethical Society of Saint Louis "Correctional Health Care in Saint Louis County Missouri", Council of Nephrology Social Workers Monthly In-Service, Council of Nephrology Social Workers “HIV Should not be a crime: Separating Fact from Fiction", Annual Conference, Empower Missouri "Violence and Reentry", Violence and Reentry, Saint Louis Alliance for Reentry (Invited) "The Interprofessional Team Seminar", School of Medicine Alumni CME Conference, Saint Louis University "Maintaining Professional Focus and Mission in Correctional Health Care", National Conference, National Commission on Correctional Health Care "Evaluation of an Interprofessional Team Seminar Course in Preparing Medical Students for Interprofessional Collaborative Practice", Evaluation of an Interprofessional Team Seminar Course in Preparing Medical Students for Interprofessional Collaborative Practice, NAP Annual Meeting & Forum "Show Me No Criminalization", Show Me No Criminalization, The SERO Project "HIV/AIDS and the Prisoner Population Panel," Missouri Department of Corrections, ARCHS, Missouri Department Of Social Services, Osage Beach, MO. Invited presentation "Professional Burn-Out, What's Next?" Missouri Department of Corrections, ARCHS, Missouri Department Of Social Services, Osage Beach, MO. Invited presentation "Reentry In Action or Reentry Inaction," Missouri Department of Corrections, ARCHS, Missouri Department of Social Services, Osage Beach, MO. Invited keynote presentation "Mental Health Provider Round Table Discussion," Saint Louis Alliance for Re-Entry, Saint Louis, Missouri. Invited presentation "HIV/AIDS and the Prisoner Population Panel", Missouri Reentry Conference 2013, Missouri Department of Corrections, ARCHS, Missouri Department of Social Services "HIV/AIDS and the Prisoner Population Panel", Missouri Reentry Conference 2013, Missouri Department of Corrections, ARCHS, Missouri Department of Social Services "Professional Burn-Out, What's Next?", Missouri Reentry Conference 2013, Missouri Department of Corrections, ARCHS, Missouri Department of Social Services "Reentry In Action or Reentry Inaction", Missouri Reentry Conference 2013, Missouri Department of Corrections, ARCHS, Missouri Department of Social Services "Mental Health Provider Round Table Discussion", STAR Points: The Mental Health Connection, Saint Louis Alliance for Re-Entry "Setting the Stage for Mental Health Intervention", STAR Points: The Mental Health Connection, Saint Louis Alliance for Re-Entry

January 2016 October 2015 October 2015 October 2014 October 2014
April 2014
April 2014 November 2013 November 2013 November 2013
November 2013 November 2013 November 2013 November 2013 November 2013 September 2013
June 2013

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Case 1:20-cv-02791-ELR-CCB Document 19-3 Filed 07/27/20 Page 57 of 59

Local Presentations

St. Louis City Prosecutor’s Class on OUD,

10/2018 – Present

Partnering with Missouri SOR Team

Gateway to Better Health Substance Use Disorder Benefit,

January and February 2019

FQHC’s and County Department of Public Health, Provider Trainings

Missouri Opioid State Target Response, Mercy Family Medicine Grand Rounds April 2018

Missouri Opioid State Target Response

April 2018

Chemistry and Communication, Invited Speaker

ONE Series, Saint Louis Integrated Health Network,

September 2015

Saint Louis University

"Show Me No Criminalization," The SERO Project, Saint Louis Public Library: April 2014

Schlafly Branch.

"Health Care in the Changing Environment," Chaminade College Preparatory, March 2014

Creve Coeur, Missouri. Invited presentation

"How to Create a Scholarship Timeline", Faculty Development

September 2013

Presentation, Saint Louis University School of Medicine

"Corrections Medicine: An Overview and Metaphor for Caring for

April 2013

the Underserved", Corrections and Social Service (Course), Saint

Louis University

"The role of correctional health care in the US health care safety

April 2013

net", Health for All, Saint Louis University's Chapter of AED

"The urban flight of health care systems in Saint Louis", Health for

April 2013

All, Saint Louis University's Chapter of AED

"The mental health continuum from jail to community", Saint Louis

March 2013

Alliance for Re-Entry Summit 2013, Saint Louis Alliance for Re-

Entry

"I am Adam Lanza's doctor", Saint Louis University Political

February 2013

Roundtable, Saint Louis University

"Promotions", Brown Bag Series, SLU SOM Office of Faculty Affairs

August 2012

and Professional Development

"Corrections Medicine: An Overview and Metaphor for Caring for

April 2012

the Underserved", Corrections and Social Service (Course), Saint

Louis University

"Communicating Unexpected Outcomes and Errors with Patients

October 2011

and Their Families", Open Disclosure Training, Saint Louis

University

"Making the Most Out of a Bad Situation: Comprehensive STI

April 2011

Testing in the Buzz Westfall Justice Center", Professional

Presentation in Corrections Medicine, Saint Louis HIV/AIDS

Planning Council

"Corrections Medicine: An Overview and Metaphor for Caring for

April 2011

the Underserved", Corrections and Social Service (Course), Saint

Louis University

"Family Medicine and Corrections Medicine: Every Jail Needs a

January 2011

Family Physician", Family Medicine Interest Group, Saint Louis

University Chapter, Saint Louis University

"Health Care Disparities in Saint Louis", Saint Louis Chapter of

January 2011

Alpha Epsilon Delta (AED), Saint Louis University

March 2020/Page 15

Case 1:20-cv-02791-ELR-CCB Document 19-3 Filed 07/27/20 Page 58 of 59

"Family Physicians and Community Practice", Family Medicine Interest Group, Washington University Chapter, Washington University School of Medicine "Racial Tension and the Impact on Health Care in Saint Louis: Follow the Money", Physicians for Human Rights, Saint Louis University Chapter, Saint Louis University "The Criminalization of Mental Illness", Physicians for Human Rights, Saint Louis University Chapter, Saint Louis University "Corrections Medicine: An Overview and Metaphor for Caring for the Underserved", Corrections and Social Service (Course), Saint Louis University "The Interprofessional Team Seminar: A Learning Activity for Advancing Professional Communication Skills", 23rd Annual Midwest Dean's Occupational Therapy Research Conference "Primary Care: A Practice Path Where You Can Practice Your Values", Family Medicine Interest Group, Saint Louis University Chapter, Saint Louis University "Missouri AHEC: A Comprehensive Workforce Pipeline", Health Care Workforce Development: Cultivating Missouri's Resources, Missouri Foundation for Health "Corrections Medicine and HIV/AIDS Care", Saint Louis Association of Nurses in AIDS Care, Midwest AIDS Training and Education Center "Corrections Medicine: An Overview and Metaphor for Caring for the Underserved", Corrections and Social Service (Course), Saint Louis University "The Nuts and Bolts of Mental Health Care for the Primary Care Provider", Annual Physician Assistant CME Conference, Saint Louis University "Justice and Health Care", Primary Care Week, Saint Louis University "Corrections Medicine: An Overview and Metaphor for Caring for the Underserved", Corrections and Social Service (Course), Saint Louis University "The Nuts and Bolts of Mental Health Care for the Primary Care Provider", Annual Physician Assistant CME Conference, Saint Louis University "Corrections Medicine: An Overview and Metaphor for Caring for the Underserved", Corrections and Social Service (Course), Saint Louis University "Corrections Medicine: Creative Methods for caring for the Underserved", Second Annual CME Conference: Innovative Approaches in Caring for the Underserved, East Central Missouri AHEC "Corrections Medicine as a Metaphor for Health Care Access", Institute for Family Medicine Community Forum, Institute for Family Medicine

January 2011 August 2010 August 2010 March 2010 January 2010 October 2009
June 2009 June 2008 March 2008 October 2007 October 2007 February 2007 October 2005 March 2005 September 2004
February 2004

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Community Activities Member, Amnesty International Member, Humane Society of Missouri Member, National Public Radio Member, Focus St. Louis

1998 -Present 1998 - Present 1998 - Present 2013 -Present

Consulting Saint Louis Effort for AIDS (Pro bono; Standing orders for outreach van testing, treatment and education) Academic, University of New England Center for Excellence in Interprofessional Education
Consultant, Missouri Department of Mental Health, Opioid State-Targeted Response/State Opioid Response, Opioid Crisis Management Team (21st Century CURES Act) Consultant, Health Services, Concordance Academy of Leadership

2010 - 2017 2013
2017- Present
2016-2018

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Case 1:20-cv-02791-ELR-CCB Document 19-4 Filed 07/27/20 Page 1 of 65
EXHIBIT C
Declaration of Emmitt L. Sparkman

Case 1:20-cv-02791-ELR-CCB Document 19-4 Filed 07/27/20 Page 2 of 65

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RHONDA JONES et al.,

Plaintiffs, v. VICTOR HILL et al.,

CIVIL ACTION NO. 1:20-CV-2791-ELR-CCB

Defendants.

EXPERT DECLARATION OF EMMITT L. SPARKMAN
I, Emmitt L. Sparkman, being competent to make this declaration and having personal knowledge of the matters stated herein, declare under penalty of perjury that the following is true and correct:
1. I am over 21 years of age. The statements contained in this declaration are based on my personal knowledge, or on information that experts in the field of corrections would reasonably rely on in forming an opinion and are true and correct to the best of my knowledge.

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I. Expert Qualifications A. Correctional Experience 1. I am a corrections consultant and subject matter expert with over
forty-four years of experience working in adult and juvenile institutional and community corrections. My curriculum vitae is attached as Appendix A.
2. I have extensive experience in the operation of correctional facilities, in the development of offender classification policies and procedures, and in the oversight of agency offender classification systems.
3. My experience in prison and corrections administrative positions includes responsibility for managing the custody, control, and treatment of incarcerated people housed in long-term segregation and on death row.
4. I have held line and supervisory positions at correctional facilities in the states of Texas, Kentucky, and Mississippi. These positions include: correctional officer, probation officer, education consultant, correctional captain, correctional major, intake-detention superintendent, director of education, director of security, warden, superintendent, and deputy commissioner.
5. My experience includes working in both the public and private corrections sectors. I served as a warden of two private pre-release centers in
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Texas (1990s), a 936-bed state medium-security prison in Kentucky (1992-1996), and a 1,000-bed private medium-security prison in Mississippi (1996-2001).
6. In June 2001, I was named the Superintendent of the Mississippi State Penitentiary, a prison complex with 18 prisons that included a 1,000-bed supermax prison (Unit 32), housing death row and the highest risk prisoners in the custody of the Mississippi Department of Corrections. I served in that position from June 2001 until December 2002.
7. I was appointed the Deputy Commissioner of Institutions for the Mississippi Department of Corrections in November 2002 and served in that position until May 2013. As Deputy Commissioner for Institutions, I was responsible for three state prison complexes, five private prisons, and fifteen regional prisons. I also had responsibility for the classification, records, employee training, treatment, facilities/engineering, and agriculture departments of the Agency.
8. Protecting prisoners from infectious diseases was one of my job responsibilities at every correctional facility at which I worked. As a correctional supervisor and administrator, I had to be prepared to respond to various communicable diseases and conditions, including avian influenza, scabies, head lice, Methicillin-resistant Staphylococcus aureus (MRSA), and many others. To
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give just a few examples, as Deputy Commissioner for the Mississippi Department of Corrections, I received technical assistance from the National Institute of Corrections to implement policies and procedures (including quarantine/isolation policies) relating to preparedness for avian influenza. Additionally, I have experience in the development and implementation of policies, training, and educational efforts to address outbreaks of MRSA within a state prison system.
B. Expert Experience 9. I have been a consultant to the states of Illinois, Maryland, Colorado, Oklahoma, New Mexico, and South Carolina, assisting them to develop strategies to reduce the use of long-term segregation and improve conditions of confinement in segregation units. I participated in an evaluation of the use of administrative segregation by the Federal Bureau of Prisons in 2014. 10. I serve as an implementation panel member responsible for monitoring the settlement agreement between the South Carolina Department of Corrections and the plaintiffs in T.R., et al. v. South Carolina Department of Corrections, et al., C/A No. 2005-CP-40-2925, in the Court of Common Pleas for the Fifth Judicial Circuit, regarding conditions of confinement for mentally ill prisoners.
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11. I serve as a subject matter expert for the Court Monitors in Nunez v. City of New York, et al., 11 Civ. 5845 (LTS) (JCF) and United States of America v. Territory of the Virgin Islands et al., Civil No. 86-cv-265.
12. I have been a certified American Correctional Association auditor since 1995. I have conducted numerous accreditation audits for the Federal Bureau of Prisons and state correction systems and have served both as an audit team member and as an audit chairperson.
13. Appendix A includes a list of all my publications in the last ten years, all the cases in which I have testified in the last four years, and my fee schedule. II. Assignment
14. I have been asked by Plaintiffs’ counsel to offer my opinion on whether the measures the Clayton County Jail is taking to mitigate the spread of COVID-19 are minimally adequate and in line with the standards on which reasonable correctional administrators would rely in addressing the pandemic. I conclude that they are not. I was retained in this matter on June 5, 2020. III. Documents Reviewed
15. I have reviewed and relied upon the following documents in forming the opinions set forth in this declaration.
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a. Report by the Georgia Department of Community Affairs listing Clayton County Jail capacity and population (dated June 2020);
b. Document titled “Current Inmate Statistics” (dated April 30, 2020); c. Documents from the Georgia Department of Public Health regarding
the nature and scope of the COVID-19 outbreak at the Clayton County Jail (dated June 11, 2020 and July 9, 2020); d. Clayton County Sheriff’s Office Daily Rosters for all shifts (dated from April 10, 2020 to April 16, 2020); e. Document from Sheriff’s Office titled “New Free Time Schedule” (dated April 1, 2020); f. Document from Sheriff’s Office titled “Steps Taken to Prevent and If a Mass Outbreak Occurs” (undated); g. Documents provided by the Clayton County Sheriff’s Office in response to Plaintiffs’ requests for:
i. Copies of all policies, guidance, and information provided to Clayton County Jail detainees and/or staff members on or after March 1, 2020, concerning the coronavirus, COVID-19, and/or infectious diseases.
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ii. Copies of all policies, procedures, memoranda, bulletins,
emails, and/or similar records, dated on or after March 1, 2020,
reflecting steps that the Clayton County Sheriff’s Office is
taking to prevent and/or address the spread of the coronavirus,
COVID-19, and/or infectious diseases in the Clayton County
Jail.
iii. Copies of all policies, procedures, plans, and similar documents
concerning steps that the Clayton County Sheriff’s Office will
take in the event of a mass outbreak of the coronavirus,
COVID-19, and/or other infectious diseases at the Clayton
County Jail.
h. Declarations by current and former Clayton County Jail detainees, including the following:1
1 I reviewed eleven (11) detainee declarations to assist in the preparation of my declaration. These detainees were currently or had previously been incarcerated in the Clayton County Jail, and their ages ranged from 27 years of age to 72 years of age. There were three (3) female and eight (8) male detainee declarations. Several detainees reported having significant medical problems. Older adults and people with certain medical conditions (e.g. lung disease, chronic obstructive pulmonary disease (COPD), heart disease, hypertension, diabetes, cancer, or a weakened immune system) are at higher risk of serious illness or death from the coronavirus. (Centers For Disease Control and Prevention, People with Certain Medical Conditions,(July 17, 2020): https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/people-with-medical-
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i. Declaration of Barry Watkins (dated June 21, 2020); ii. Declaration of Randolph Mitchell (dated June 21, 2020); iii. Declaration of Rhonda Jones (dated June 21, 2020); iv. Declaration of Michael Singleton (dated June 24, 2020); v. Declaration of C.C. (dated June 25, 2020); vi. Declaration of J.H. (dated June 25, 2020); vii. Declaration of M.B. (dated June 3, 2020); viii. Declaration of F.S. (dated June 18, 2020); ix. Declaration of A.W. (dated June 21, 2020); x. Declaration of W.L.M. (dated July 7, 2020); xi. Declaration of D.H. (dated July 14, 2020). i. Detainees’ grievances related to COVID-19 (provided by Sheriff’s Office to Plaintiffs’ counsel on June 25, 2020); j. Other Documents i. Centers for Disease Control and Prevention, Interim Guidance on
Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (March 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/downloads/guidance-correctional-detention.pdf
ii. Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (updated July 14, 2020),
conditions.html?CDC AA refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavir us%2F2019-ncov%2Fneed-extra-precautions%2Fgroups-at-higher-risk.html). In this declaration, I refer to named plaintiffs by their full names and to other detainees by use of their initials.
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https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctionaldetention.html. iii. Centers for Disease Control and Prevention, Interim Considerations for SARS-CoV-2 Testing in Correctional and Detention Facilities, (July 7, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/testing.html. iv. American Correctional Association. Performance-Based Standards for Adult Local Detention Facilities. Fourth Edition. IV. Factual Background Regarding the Clayton County Jail 16. The Clayton County Jail is a 100,355 square foot facility. It has a maximum capacity of 1,920 detainees. (Georgia Department of Community Affairs, “County Jail Inmate Information Report,” June 2020.) As of June 2020, it had an inmate population of 1,847. (Id. at 8.) 17. The Clayton County Sheriff is responsible for the jail operation. The Jail Operation Division consists of two (2) sections: Jail Administrative Operations and Jail Security Operations. Jail Administrative Operations consists of several administrative units that provide the background administrative work that occurs in the jail, including supervision of contractors who perform services inside the jail. Outside services include medical, maintenance, property, commissary, and food service. Jail Administrative Operations staff perform the non-security functions
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for the jail. Jail Security Operations consists of three (3) teams and the Special Response Team (SRT).
18. Jail Security teams are broken down into three (3) groups of correctional officers, each working an eight-hour shift. The security teams are responsible for dealing with the detainees on a one-to-one basis, ensuring that they comply with rules, receive meals, and are in good health. Booking and release of detainees, as well as court and medical appearances, are also the responsibility of the security teams. 2 V. The Clayton County Jail’s Failure to Take Steps to Mitigate the Spread
of COVID-19 19. It is generally accepted in the corrections field that prison and jail administrators must take any infectious disease extremely seriously. People in jail live in close proximity to one another and share showers, sinks, toilets, and other fixtures, so once a single detainee becomes infected with a communicable condition, others are likely to become infected too. A virus can spread very quickly in a jail. 20. In determining a plan to respond to the potential spread of an infectious disease, prison and jail administrators frequently look to both the
2 Website of the Clayton County Sheriff’s Office, http://www.claytonsheriff.com/JOD.html (last accessed July 22, 2020).
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National Institute of Corrections and the Centers for Disease Control and Prevention (CDC) for guidance. Both entities are authoritative sources on which correctional administrators commonly rely. Correctional administrators also look to the standards promulgated by the American Correctional Association (ACA) in making the policies and developing procedures that govern their facilities.
21. Adherence to public health guidelines governing mitigation of COVID-19 in jails is critical because of the substantial health risks involved and because some infected people do not show symptoms of having the virus. The unmitigated spread of coronavirus inside a jail puts detainees, staff members, and the community at risk.
22. Over the last several months, we have seen COVID-19 spread rapidly in jails in Chicago, New York City, and elsewhere. These outbreak events show the urgent need for all jails to adopt preventative strategies to slow the spread of the virus. Specifically, jail administrators should follow the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities. The CDC issued an initial guidance document in March 2020, and it updated its guidance in July 2020.
23. In both versions of the Interim Guidance document, the CDC lists a number of reasonable measures that jails should take in order to minimize the
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spread of COVID-19. While some of these measures are directed at a jail’s medical provider, many other recommended measures (such as those dealing with sanitation, the stocking of supplies, daily schedules, inmate and staff education efforts, and others), come within the purview of a jail’s administrative and security staff.
24. From my review of the documents listed above, it is my opinion that the Clayton County Sheriff has failed to implement measures that any reasonable correctional administrator would know to implement in the context of the COVID19 pandemic and the particular outbreak at his facility. Further, the Clayton County Jail has not followed CDC recommendations in several key respects. These failures fall into several categories, including:
a. Absence of a written policy regarding COVID-19; b. Impossibility of “social distancing” in overcrowded cells; c. Failure to encourage social distancing in common areas; d. Inadequate cleaning and sanitation; e. Inadequate quantities of soap and lack of hand sanitizer; f. Failure to provide clean laundry; g. Failure to provide face coverings to detainees; h. Failure to educate detainees about COVID-19; i. Barriers to submitting medical requests and grievances; j. Failure to identify, isolate, and care for people with COVID-19; k. Improper quarantine/isolation practices; and
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l. Failure to suspend work release and “Weekender” program.
25. These categories are discussed in turn below. A. Absence of a Written Policy Regarding COVID-19 26. At this point in the course of the COVID-19 pandemic, all correctional facilities (let alone one housing almost 2,000 people) should have written policies describing the measures that staff members and detainees are expected to take to prevent the spread of COVID-19. 27. The Clayton County Jail does not appear to have any COVID-19specific policy. I have examined the materials provided by the Sheriff’s Office in response to Plaintiffs’ counsel’s request for COVID-19-related standard operating procedures, bulletins, or other policy documents. The documents provided by the Sheriff’s Office consist of various emails, a link to a COVID-19-related webinar, and a perfunctory document titled “Steps Taken to Prevent and If a Mass Outbreak Occurs.” This last document appears to be an aspirational list of measures to address COVID-19 in the jail, many of which have not been actually implemented according to numerous, consistent detainee declarations. 28. None of these documents, in any event, is a standard operating procedure in any sense of that term with which I am familiar. None sets forth steps that staff and detainees are expected to follow to reduce virus transmission.
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Neither have I seen evidence that the Jail has a more general emergency plan to address novel and unexpected diseases such as COVID-19. Every jail should have such a plan, and the ACA ALDF standards requires it.3 The Clayton County Jail should adopt written policies and procedures that conform to CDC guidelines to address the risks posed by COVID-19.
B. Impossibility of “Social Distancing” in Overcrowded Cells 29. In my corrections experience, contagious diseases and bacteria can spread rapidly under normal jail conditions. MRSA, for example, could quickly spread through an entire housing unit if left unchecked. In responding to a serious communicable disease like COVID-19, any jail administrator would understand that it is imperative to change the practices in the facility to promote social distancing and minimize detainees’ physical contact with each other and with staff.
3 The ACA requires correctional facilities to have a “communicable disease and infection control program,” which should include “a written plan that addresses the management of infectious and communicable diseases.” (ACA Standards, “Communicable Disease and Infection Control Program, 4-ALDF-4C-14”, Performance Based Standards for Adult Local Detention Facilities (4th ed.).) The plan should incorporate “procedures for prevention, education, identification, surveillance, immunization (when applicable) treatment, follow-up, isolation (when indicated) and reporting requirements to applicable local, state, and federal agencies.” (Id.)
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30. In their declarations, numerous Clayton County Jail detainees stated that they were housed three-to-a-cell in cells designed for only two people. For example, Plaintiff Barry Watkins is one of three people housed in a two-man cell. (Watkins Decl. ¶ 8.) Plaintiff Rhonda Jones sleeps on the floor of a two-person cell with three people in it. (Jones Decl. ¶ 6.) Detainee F.S. slept on the floor during her entire incarceration in a cell designed for two people, but housing three people. (F.S. Decl. ¶ 9.) W.L.M stated: “Most if not all of the cells in my dorm have three people in each two-person cell. One person sleeps on the floor in each of these cells.” (W.L.M. Decl. ¶ 12.)
31. Despite the COVID-19 pandemic, the jail remains at 96% capacity, which is a root cause of so many people sleeping on the floors of overcrowded cells. It is not possible for detainees to practice social distancing while confined to small cells with two other people in them. It is particularly worrying that older people and medically vulnerable people are housed in overcrowded cells in a facility where so many people have tested positive for COVID-19.4
4 Plaintiff Rhonda Jones indicated in her declaration she is a 58-year-old female with significant health problems, including chronic obstructive pulmonary disease (COPD) and hepatitis C. (Jones Decl. ¶¶ 2-3.) She has been hospitalized for pneumonia two times in the last eight months. (Id.) Yet she is one of three people in a cell designed for two people (id. ¶ 6) in a jail with surging cases of COVID-19.
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32. Detainees are required to remain in their cells for most of the day and are only allowed out for one to two hours per day, sometimes less often. (Watkins Decl. ¶ 9 (stating that he is permitted out of his cell for about 60-90 minutes each day).)5
33. Even in the absence of a global pandemic, the Jail’s policy of housing detainees three to a two-man cell (requiring one person to sleep on a thin mat on the floor) is a threat to public health and to security. ACA ALDF standards require mattresses to be 12 inches off the floor for obvious reasons, preventing the individual from having contact with unhealthy floor conditions. 6 Housing three persons to a cell creates very unhealthy and dehumanizing conditions for the individuals to perform basic hygiene and toilet functions. Placing three persons in a cell rated for two persons frequently results in disagreements/altercations
5 Detainees report that they are infrequently, if ever, allowed outside for fresh air. M.B. described only being allowed outside one time in the last year for fresh air. (M.B. Decl. ¶ 9.) Many detainees reported no time in the yard at all for the duration of their incarceration. (Watkins Decl. ¶ 12 (“In 21 months at the jail, I have never been allowed out into the ‘yard.’”).) 6 ACA ALDF standards require that each person confined in a cell is provided “a sleeping surface and mattress that allows the inmate to be at least 12 inches off the floor.” (ACA, “Cell/Room Furnishings, Standard 4-ALDF-1A-11,” Performance Based Standards for Adult Local Detention Facilities (4th ed.).)
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between detainees. These conflicts can jeopardize safety and security of the incarcerated persons and staff.
34. Recognized national jail standards have established the recommended minimum encumbered and unencumbered square footage to be provided to each detainee in a cell.7 From the descriptions in detainees’ declarations, the cells do not meet these minimum square footage standards for each detainee.
C. Failure to Encourage Social Distancing in Common Areas During “Free Time,” Meal Distribution, Medication Distribution, and Transport within the Facility
35. Reasonable correctional officials know that in an infectious disease scenario, steps must be taken to reduce close contact between people who are infected or possibly infected. In the age of COVID-19, correctional administrators should encourage social distancing wherever possible, in particular for older detainees and people with certain health conditions. The CDC’s most recent
Interim Guidance document states: Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. People who have been infected with SARS-CoV-2 but do not have symptoms can still spread the infection, making social distancing even more important. (CDC Interim Guidance, p. 4 (Mar. 23, 2020).)
7 (American Correctional Association. Performance-Based Standards for Adult Local Detention Facilities (4th ed.).)
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36. The first thing jail administrators can do to help achieve social distancing is to review who is in a jail and take steps to release people, consistent with public safety, where possible. It does not appear that such efforts have been made at the Clayton County Jail, which is even now at about 96% capacity. As just one example, at the time this case was filed, Plaintiff Mitchell, age 72, had served about 10 months of a 12-month sentence for a misdemeanor. (Mitchell Decl. ¶¶ 2-3, 21.) This was so even though the Sheriff had the authority to release him under Georgia’s “good time” statute.
37. Given that the jail is at capacity and experiencing a COVID-19 outbreak, jail administrators should review the jail roster to determine who can be released. They should involve their medical and classification staff in the process. The medical staff should be asked to make a list of people most vulnerable to serious illness or death from COVID-19. The classification staff should look at the roster to recommend who can be released consistent with law and public safety. Jail administrators should examine those findings and release people accordingly where possible.
38. To protect those who remain incarcerated, jail administrators are encouraged by the CDC to “[i]mplement social distancing strategies to increase the physical space between incarcerated/detained persons (ideally 6 feet between all
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individuals, regardless of symptoms), and to minimize mixing of individuals from different housing units.” (CDC Interim Guidance (July 7, 2020).) Jails should further “[m]ake a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity.” (Id. at 5.)
39. Here too, only minimal efforts to achieve social distancing have been made in detainee housing areas in the Clayton County Jail. While the jail changed its “free-time” schedule to permit smaller groups out of their cells at a time, social distancing is not required or even encouraged when “free time” is allowed, according to the declarations I reviewed. Since out-of-cell time is limited, detainees must hurriedly take showers and use communal telephones and kiosks before being returned to their cells. (Singleton Decl. ¶ 4.) As noted below, detainees reported no education about social distancing, so people crowd together during the limited “free time” hours. (Id. (“Officers do not impose social distancing during these times, nor do they provide us with masks.”); Watkins Decl. ¶ 11 (“People do not keep six feet of distance between them, particularly when using the showers, phones, or the kiosk.”).)
40. At other times of day, jail staff do not encourage or require social distancing at all. “Pill call” line operates as it did before the pandemic, with crowds of detainees lining up close to each other to await their medication.
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(Mitchell Decl. ¶ 7; Watkins Decl. ¶ 14; W.L.M. Decl. ¶ 10.) People with diabetes line up to receive insulin and/or blood glucose level monitoring in lines of 20-30 people (or 50-75 people if several dorms are released at once). (Watkins Decl. ¶ 27; see also W.L.M. Decl. ¶ 9 (stating that during “diabetic call” he would stand near about 30 other people in a closely packed group or single file line.).)
41. During movement for afternoon meals, detainees line up in crowds, with no efforts by officers to impose social distancing. (Mitchell Decl. ¶ 7; Singleton Decl. ¶ 4; Watkins Decl. ¶ 13.) While waiting for medical appointments, detainees wait in a crowded waiting area. (Mitchell Decl. ¶ 15.)
42. Another risky practice is the manner in which people are moved through the jail for video court appearances. (Singleton Decl. ¶ 11.) People are held together in large, crowded holding cells, and in many instances the detainees crowded together lack masks. (Id. (stating that he waited for court in a holding cell with about 25 other detainees, only 6 or 7 of whom were wearing masks).)
43. Clayton County Jail procedures should be revised to require six feet between all persons during movement whenever possible. Out-of-cell activities, including meal service, medication distribution, and other activities, should be staggered to ensure detainees and staff can remain six feet apart. As noted below, staff and detainees should receive education to emphasize the importance of social
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distancing. Management and supervisory staff should be vigilant in monitoring and enforcing social distancing where possible.
D. Inadequate Cleaning and Sanitation Regimen 44. In my experience, regular cleaning and sanitation efforts are critical to maintaining a safe environment for inmates. Jails should, under normal circumstances, have a regular housekeeping plan to address sanitation matters. This is important in part because unclean living areas promote the spread of infectious diseases, viruses, and bacteria. One of the important duties of prison and jail administrators is to develop a cleaning plan, stock adequate supplies of chemicals and cleaning materials, train inmates and staff in how to use cleaning supplies, and supervise the cleaning of all areas of the facility. Given the seriousness and prevalence of COVID-19, any jail administrator would understand the need for intensive sanitation measures during this time. 45. Not surprisingly, the CDC has provided detailed recommendations regarding the need for “intensified cleaning and disinfecting procedures” in light of COVID-19. (CDC Interim Guidance (July 7, 2020).) In pertinent part, the guidelines state: Even if COVID-19 has not yet been identified inside the facility or in the surrounding community, implement intensified cleaning and disinfecting procedures according to the recommendations below.
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These measures can help prevent spread of SARS-CoV-2 if introduced, and if already present through asymptomatic infections. (Id.)

Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. (Id. at 9.)

Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, telephones, and computer equipment). (Id.)

Use household cleaners and EPA-registered disinfectants effective against SARS-CoV-2, the virus that causes COVID-19 as appropriate for the surface. . . . Clean according to label instructions, to ensure safe and effective use, appropriate product dilution and contact time. (Id.)

Ensure adequate supplies to support intensified cleaning and disinfection practices and have a plan in place to restock rapidly if needed. (Id.)
46. Detainee declarations and grievances consistently report that the

intensified cleaning regimen recommended by the CDC is not occurring in the

Clayton County Jail.

47. Housing unit areas and fixture surfaces such as tables, restroom areas,

walls, phones, and kiosks are not cleaned before and after use. (Singleton Decl. ¶ 4

(stating that “[c]ommon areas, kiosks, and phones are not cleaned or wiped down

in between uses.”); F.S. Decl. ¶ 12 (stating that common areas were cleaned

infrequently, and that phones and kiosks were not cleaned between uses); W.L.M.

Decl. ¶ 13 (same).)
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48. Cleaning supplies, such as sponges and clean rags, are in short supply. (Mitchell Decl. ¶ 10.) Plaintiff Mitchell stated that he had to use toilet paper to wipe his sink basin and other fixture surfaces due to the clean rags or sanitary disinfectant wipes not being available. (Id. ¶ 9.) Barry Watkins similarly stated: “The only thing we can use to clean our cells is our towel or spare bits of toilet paper.” (Watkins Decl. ¶ 24.)
49. Cleaning fluids are also in short supply. (Mitchell Decl. ¶ 9 (stating that a mop bucket is brought around infrequently and reporting that on a recent morning, an orderly brought him a bucket of dirty water with no mop); F.S. Decl. ¶ 13 (stating that a mop was brought around once per week and that there was a “race to use the mop before the water became dirty and unusable, which happened quickly.”).)
50. The failure to provide cleaning supplies is also problematic because plumbing problems at the jail lead to toilet water flooding certain cells or pooling in the housing unit common rooms. (C.C. Decl. ¶ 17-18.) One detainee described being placed in a cell with “an overpowering smell of feces from an overflowing toilet.” (W.L.M. Decl. ¶ 11.) Another detainee described having to urinate in the sink for weeks because of a broken toilet. (C.C. Decl. ¶ 17.) Plaintiff Rhonda Jones stated that toilet water with a “putrid odor” leaks out of the base of her toilet,
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that she sleeps on a thin mattress on the floor, and that she put blankets on the cell floor to sop up the toilet water. (Jones Decl. ¶¶ 6, 12.)
51. In short, the “intensified cleaning” recommended by the CDC does not appear to be happening at the Clayton County Jail. On the contrary, the declarations I have reviewed describe poorly performed cleaning and sanitizing on an infrequent basis.
52. Staff and detainees must be provided an adequate amount of cleaning chemicals and supplies to ensure staff and detainees can frequently clean all areas and surfaces before and after each use.
53. Improved cleaning is especially needed for areas where people with COVID-19 have been housed. (CDC Interim Guidance (July 7, 2020) (stating that jails should “[t]horoughly and frequently clean and disinfect all areas where individuals with confirmed or suspected COVID-19 spend time.”).)
E. Inadequate Quantities of Soap and Lack of Hand Sanitizer 54. Permitting detainees to have access to sufficient quantities of soap and other personal hygiene items is critical to personal health inside a jail. That is true at any time but is particularly true during a pandemic. Under pre-pandemic circumstances, correctional administrators may ration or limit certain supplies, such as soap or toothpaste, to a certain amount for a period of time. At a jail where
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many people are testing positive for COVID-19, however, any reasonable correctional administrator would know to modify the procedures, especially procedures pertaining to the rationing of soap.
55. The CDC guidance recognizes the importance of ensuring an adequate supply of soap. The CDC recommends that correctional facilities should provide no-cost, liquid or foam soap to incarcerated persons. (CDC Interim Guidelines, p. 9.) Jails must “[e]nsure a sufficient supply of soap for each individual.” (Id. at 7.)
56. Detainees at the Clayton County Jail report that they do not have anywhere near enough soap. Specifically, detainees report that they are issued four ounces of liquid soap per week, an amount that detainees use for showering, in-cell cleaning, and laundering. (Singleton Decl. ¶ 6 (stating that he uses his soap to shower, clean his towel, and clean his cell floor); Watkins Decl. ¶ 15 (stating that he must use his soap for handwashing, showering, washing clothes, and cleaning his cell, and that the four ounces provided “does not last any of us for the whole week.”); C.C. Decl. ¶ 12 (stating that he is not given chemicals or disinfectant to clean his cell, and that “I do my best to clean with my personal issued soap”); F.S. Decl. ¶ 14 (stating that the small amount of liquid soap provided was the only material with which to clean cells, wash hands, and use in the shower).)
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57. On occasion, no soap is provided at all. (C.C. Decl. ¶ 13 (stating that on May 21, 2020, no one in his dorm received soap at weekly “hygiene call,” meaning that most people in the dorm went without soap for the week).)
58. The amount of soap provided at the Clayton County Jail is woefully inadequate to ensure the kind of frequent hand washing needed to stop the spread of a contagious illness. If a person runs out of soap, more should be provided, and it should be provided immediately. This is not a time to maintain strict adherence to existing procedures about soap quantity. Soap, paper towels, and other hygiene items should be readily available upon request for detainees.
59. Further, detainees at the Clayton County Jail are not provided access to hand sanitizer. The CDC urges correctional facilities to “[c]onsider relaxing restrictions on allowing alcohol-based hand sanitizer . . . where security concerns allow.”
60. In my professional opinion, under the exigent circumstances of this pandemic, hand sanitizer should be allowed and is critical to controlling spread of the coronavirus inside correctional facilities. In the free world, people typically have access to soap and a sink, and they can wash hands as needed. A jail is a different environment. Detainees may not have control over handwashing practices. People may not have access to a sink and soap as they move around the
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jail to places like the medical unit or video court. Crowding around a common sink for handwashing is itself to be avoided. For these reasons, as recommended by the CDC, detainees should be provided an unlimited supply of alcohol-based sanitizer.
61. I understand that correctional facilities sometimes avoid the provision of alcohol-based sanitizer because of the risk that a person could consume it. But the coronavirus threat substantially outweighs the security risk, especially at a jail where 72 people have tested positive for COVID-19. Hand sanitizer can be stationed in areas where correctional officers have a direct line of sight. Multiple correctional agencies have suspended the prohibition on detainees having access to hand sanitizer during the coronavirus pandemic, and for good reason.
F. Failure to Provide Clean Laundry 62. In a large correctional facility, it is imperative to have procedures in place to provide for routine laundering of clothing, towels, linens, and other items. The provision of clean laundry is crucial to avoiding the spread of virus, bacteria, and parasites, and also helps to preserve people’s sense of wellbeing and dignity. For these reasons, ACA ALDF standards contain detailed guidance on the
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provision of clothing and bedding, and the intervals at which those items should be laundered (weekly, for example, for sheets and towels).8
63. As with cleaning, under the present circumstances, laundering procedures should be intensified. Not surprisingly, the CDC recommends special precautions for handling laundry of those with COVID-19. (CDC Interim Guidance (July 7, 2020).) The CDC also recommends that face coverings should be “routinely” laundered. (Id. at 9.)
64. Routine laundry service of jumpsuits, sheets, towels, and like items appears to be a problem at the Clayton County Jail. Declarant M.B. described having to wear a dirty jumpsuit for a month, and female detainees without monetary funds did not have access to clean undergarments. (M.B. Decl. ¶ 11.) Plaintiff Barry Watkins described having to wear unclean jumpsuits and underwear. (Watkins Decl. ¶ 17-19 (stating that his underclothes had not been taken to be laundered in over a month, that sheets are “rarely cleaned,” and that his
8 ACA standards require that inmates are issued suitable, clean bedding and linens, including 2 sheets, pillow and pillowcase, one mattress not to exclude a mattress with an integrated pillow, and sufficient blankets to provide comfort under existing temperature controls. (ACA, “Bedding Issue, Standard 4-ALDF-4B-02,” Performance Based Standards for Adult Local Detention Facilities (4th ed.).) This ACA standard further requires “[a] provision for linen exchange, including towels, at least weekly.” (Id.)
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towel had not been laundered in 21 months).) Declarant W.L.M. noted that he had never been issued a towel or washcloth, stated that he used his socks as a towel, and noted that he had gone without sheets for the last 6 weeks. (W.L.M. Decl. ¶ 15-16.) Requiring detainees to wear dirty jumpsuits, to shower with dirty towels, and to wear dirty face coverings will undermine the goal of promoting good hygiene practices. The Jail should comply with CDC guidelines and ACA ALDF standards relating to laundering, especially laundering of facemasks and other items belonging to infected persons.
G. Failure to Provide Cloth Face Coverings to Detainees 65. In my opinion, following the CDC’s guidance and issuing face coverings would be a high priority for any jail administrator concerned with preventing the spread of COVID-19. Because of the difficulty of social distancing in jails, uniform mask use among detainees and staff would be an obvious and relatively inexpensive safeguard that any reasonable jail administrator would implement 66. The CDC guidelines state that all detainees and staff should be encouraged “to wear a cloth face covering as much as safely possible” to prevent virus transmission “through respiratory droplets.” (CDC Interim Guidance (July 7, 2020).) The CDC also urges facilities to “ensure sufficient stocks” of hygiene
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items including “cloth face coverings” and to “have a plan in place to restock as needed.” (Id. at 7.) The CDC guidelines characterize “wearing cloth face coverings” as “critical in preventing further transmission.” (Id. at 8.) Jails should “[p]rovide cloth face coverings at no cost to incarcerated/detained individuals and launder them routinely.” (Id. at 9.)
67. Contrary to the CDC guidance, multiple Clayton County Jail detainees stated that they were not provided sanitary masks, and they had to improvise and make their own from dirty and/or worn clothing, towels, and rags. For example, M.B. said that she asked a jail officer to provide her a mask and was refused, so used “a scrap of old, ripped underwear around [her] face as a makeshift mask.” (M.B Decl. ¶ 13.) Plaintiff Michel Singleton stated on June 24 that only newly arrived detainees had masks, and that he constructed his out of a torn sheet. (Singleton Decl. ¶ 8.) Plaintiff Randolph Mitchell stated that he asked an officer for a mask, but the officer replied that masks were “only for officers and trustees.” (Mitchell Decl. ¶ 20.) Mr. Mitchell resorted to purchasing a mask (made of a torn T-shirt and the elastic from a pair of underwear) from another detainee in exchange for two packages of soup. (Mitchell Decl. ¶ 19.) Declarant C.C. stated that “[a]lmost no one has face masks to protect them from COVID-19. The only people who get real masks are those at intake.” (C.C. Decl. ¶ 22.)
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68. Appropriate face coverings and PPE must be provided to staff and detainees, as recommended by the CDC. Staff and detainees should be required to wear a face covering when they are in an area with another person.
69. Sufficient quantities of PPE should be available for wearing and routine issue. Staff and detainees should be educated on wearing face coverings and PPE, how to take them on and off, and how to launder and/or disinfect them.
H. Failure to Educate and Inform Detainees About COVID-19 70. Slowing the transmission of a communicable disease in a prison or jail setting requires education of staff and detainees. When I was a Deputy Commissioner in Mississippi, I saw firsthand the importance of educating and training staff and detainees to mitigate the rapid spread of MRSA. To slow transmission, staff and detainees needed to know the symptoms of MRSA, good hygiene and laundering practices, what to do if a person developed MRSA, and so on. We developed and conducted staff trainings and created informational material, based on CDC and other guidelines. 71. The same educational principles apply here, but even more urgently. First, there should be a mandatory training for all staff on preventative measures.9
9 The staff training can be computer-based. The substance of the training should be in accordance with CDC guidelines.
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Second, jail administrators need to make sure that detainees are educated regarding COVID-19. The CDC recommends that correctional administrators should “[p]ost signs throughout the facility” explaining COVID-19 prevention measures and should “communicate this information verbally on a regular basis.” (CDC Interim Measures, p. 6.) According to the CDC, the signage and verbal communications should be aimed at the following:
a. ensuring that all persons in the jail know the symptoms of COVID-19 and how to respond if they develop symptoms;
b. ensuring that all persons wear face coverings, avoid sharing dishes and utensils, and wash hands regularly;
c. providing clear information to detainees about the need to increase social distancing. (See id.)
72. Correctional administrators should also “[e]nsure that materials can be understood by non-English speakers and those with low literacy and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or have low vision.” (Id.) Given the scope of the Jail’s outbreak (and the likelihood that some detainees cannot read posted signs), other methods of information dissemination should also be used, like regular public
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announcements over the intercom system, an informational video on close circuit television, and/or the use of a designated telephone line to provide information.
73. None of the above appears to be happening at the Clayton County Jail based on the declarations and grievances I reviewed. On the contrary, detainee declarations provided consistent information that detainees were not receiving any coronavirus information or education of any kind.
74. According to the detainee declarations, no COVID-19-related signage is posted in the jail and the administration has not taken any other steps to inform detainees about how they can protect themselves from the coronavirus. (Mitchell Decl. ¶ 22 (“I have not received any information from jail staff about COVID-19 or how to protect myself. There are no signs in the dorm about protecting ourselves from COVID-19.”); Singleton Decl. ¶ 11 (“I have not received any information from the jail staff about COVID-19, or how to protect myself.”); Watkins Decl. ¶ 32 (“Officers in the jail have given us no information at all about COVID-19 and its symptoms.”); F.S. Decl. ¶ 19 (“[T]hose of us incarcerated in the jail were not told anything about the disease’s symptoms or how to slow the spread of the virus by the jail staff.”); W.L.M. Decl. ¶ 17 (“I have received no information about COVID-19 from the jail.”).)
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75. The jail is also lacking in sound and clear procedures for detainees to report coronavirus symptoms to medical and/or non-medical staff. In short, based on the declarations I have reviewed, the CDC’s recommendations regarding detainee education have not been followed.
I. Barriers to Submitting Medical Requests and Grievances 76. Detainees must have unimpeded access to submit grievances regarding conditions of confinement, particularly related to medical care. Staff should provide a substantive response to grievances in a timely manner. At this moment, it is more important than ever that detainees be able to report illness, request cleaning supplies, or otherwise communicate with jail staff about matters relating to COVID-19. 77. The Clayton County Jail requires detainees to electronically submit conditions of confinement complaints and medical requests via kiosks located in the detainee housing units. Multiple detainee declarations described an inability and/or difficulty accessing the complaint system and making medical requests using the kiosk. 78. For example, M.B. reported a history of breast cancer and thyroid problems. (M.B. Decl. ¶ 12.) She also experienced possible coronavirus symptoms, but she was not able to contact the jail’s medical department to report
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those symptoms. (Id. ¶ 18.) Her attempts to access the kiosk were unsuccessful because she was “on restriction” for a disciplinary violation (allegedly being in someone else’s cell). (Id. ¶ 19.)
79. Similarly, Plaintiff Randolph Mitchell stated that he tried to file a grievance about the jail’s failure to protect people from COVID-19, but the kiosk system would not accept his grievance. (Mitchell Decl. ¶ 24 (“The kiosk screen showed that I had ‘used up’ all my grievances and could not file any more.”).)
80. When detainees do file grievances, they often receive no response. In the grievances I reviewed, 22 out of 29 grievances had no response from staff members. Other grievances received vague responses, such as “I will address your concerns” or “thank you for the information.”
81. Detainees also stated that the Clayton County Jail did not issue them an Inmate Handbook. (Mitchell Decl. ¶ 23.) Typically, correctional facilities provide handbooks with information about the jail, particularly the procedures for accessing services such as healthcare and the process to request assistance from jail officials.
82. Denying a detainee access to the kiosk to submit grievances or complaints related to conditions of confinement because of disciplinary sanctions
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is extremely problematic. Blocking detainees’ access to the kiosk will make it more difficult for people to report symptoms of COVID-19.
J. Failure to Identify, Isolate, and Care for People With COVID-19 83. Any reasonable correctional administrator would know that a person infected with the coronavirus should not be housed in the same cell with an uninfected person. Any reasonable correctional administrator would also know that people experiencing active symptoms of COVID-19 should be isolated (so that they do not infect other people) and provided with medical care. 84. In accordance with these principles, the CDC states that “[f]acilities should make every possible effort to individually quarantine cases of confirmed COVID-19, and close contacts of individuals with confirmed, or suspected COVID-19.” (CDC Interim Guidance (July 7, 2020).) The CDC further states that “[i]ncarcerated/detained persons who are close contacts of someone with confirmed or suspected COVID-19 . . . should be placed under quarantine for 14 days.” (Id. at 18.) 85. According to the declarations I have reviewed, these measures are not being followed in the Clayton County Jail. Rather people report being left in their cells with cellmates who have active symptoms of COVID-19.
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86. One detainee, W.L.M., described being placed into a cell with a man
who appeared to be experiencing symptoms of COVID-19 (difficulty breathing,
cold sweats, and diarrhea) and had just been tested for the virus. (W.L.M. Decl. ¶
18.) W.L.M. began experiencing symptoms of the virus not long thereafter. (Id. ¶
21.) He describes a horrific experience of becoming extremely ill, stating:
The two weeks after my COVID-19 test, including the time we were under lockdown, were some of the darkest days of my life. I began to experience severe symptoms and excruciating pain. I had such severe bowel problems that I did not stand to urinate for approximately nine days because of my inability to hold down food and water. I went through 14 rolls of toilet paper in approximately ten days. I would have to beg an officer for more toilet paper on my way back from diabetic call each night. I lost about fifteen pounds over those two weeks. I was weak and fatigued, and I struggled to make it back and forth from medical during diabetic call. Worst of all, I had immense difficulty breathing.
One night during those two weeks stands out as the most terrifying night of my life. Approximately ten days after I first began experiencing these symptoms, on or around May 23, 2020, my condition took another turn for the worse. At approximately 1:00 a.m., I began to feel severe pain in my lungs; it felt as if my lungs were going to collapse. I could not breathe. I began to bang on my cell door because the emergency call button in my cell does not work. My cellmate, E.R., told me that banging on the door would not work either: no one was coming to help. I believed I was going to die that night.
Eventually, the banging on the door caught the attention of a trustee (“inmate worker”), who was cleaning in my dorm. I began to wave toilet paper in the cell door window to flag him down. Through the crack in my door, I told him that I was having difficulty breathing and asked him to get an officer. The trustee went to the officer booth. When he returned, he told me that the officer had told him that I had to wait until count to speak with
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an officer. At this point in the night, the next count was over six hours away. I did not think I was going to make it another six hours. (Id. ¶¶ 28-30.) 87. Another detainee, Plaintiff Barry Watkins, reported that he attempted to summon an officer after his cellmate, who had symptoms of COVID-19, started vomiting in his cell. (Watkins Decl. ¶ 39.) The officer responded that he would not come to the cell unless the cellmate was “passed out or bleeding.” (Id.) It was two days before the cellmate was called to the medical unit. (Id. ¶ 40.) When Mr. Watkins himself experienced symptoms including a cough, aches, diarrhea, and extreme fatigue, a nurse took his temperature, said he had no fever, and sent him back to his cell. (Id. ¶ 37.) 88. Yet another detainee, F.S., described her cellmate (C.H.) experiencing coronavirus symptoms, to the point where C.H. was coughing up blood and needed help to get up to use the toilet. (F.S. Decl. ¶¶ 23-24.) Although F.S. reported the symptoms to an officer, no one removed C.H. from the cell and C.H. did not receive medical treatment. (Id. ¶ 24.) F.S. stated that she later began experiencing pounding headaches, sore throat, chills and vomiting. (Id. ¶ 25.) When she pressed the call button in her cell for staff assistance, no one responded. (Id.) She told an officer who was taking count about her symptoms and she was advised to submit a medical request. (Id.) A week after she submitted a medical request stating her symptoms and need for urgent medical care, a nurse saw her during pill
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call and gave her Tylenol. (Id.) She was not isolated and not tested for COVID19. (Id. ¶ 27)
89. In his declaration, J.H. indicated he believed he was exposed to COVID-19 in the jail, and that he experienced symptoms of COVID-19, including fever, shortness of breath, sore throat, body aches, and fatigue. (J.H. Decl. ¶ 30.) He was never tested despite making several requests, and he was not isolated. (Id. ¶¶ 30-31.) While symptomatic, he was taken to await video court and placed in a waiting area with about 20 other people, only 10 of whom had jail-issued masks. (Id. ¶¶ 30-31.)
90. Responding to a disease outbreak within a correctional facility is a multidisciplinary effort. It is imperative that jail medical staff make frequent contact with the detainee population. Jail administrators must verify that medical staff are making regular rounds. Detainees who reports symptoms of COVID-19 should be evaluated immediately. Officers should not direct symptomatic detainees to submit a medical request to be seen several days or a week later. That is an unacceptable response in a jail with a known incidence of infectious disease.
91. The Jail should ensure that detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. If the Jail is not able to provide such evaluation and treatment, a plan should be in place to
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safely transfer the individual to another facility or local hospital. The initial

medical evaluation should determine whether a symptomatic individual is at higher

risk for severe illness from COVID-19.

K. Improper Quarantine/Isolation Practices

92. The CDC quarantine guidelines state:

Facilities should make every possible effort to individually quarantine cases of confirmed COVID-19, and close contacts of individuals with confirmed, or suspected COVID-19. Cohorting multiple quarantined close contacts could transmit SARS-CoV-2 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 or who test positive for SARS-Cov-2 should be placed under medical isolation immediately. (CDC Interim Guidance, p. 19 (Mar. 23, 2020).)

93. The CDC also recommends that if a person is an asymptomatic close

contact of someone with COVID-19, the person should be monitored for

symptoms at least once per day (and ideally twice per day) for fourteen days. (Id.

at 10.) Additionally, the CDC counsels correctional administrators to “[e]nsure

that medical isolation for COVID-19 is distinct from punitive solitary confinement

of incarcerated/detained individuals, both in name and in practice.” (Id. at 15.)

This is important because incarcerated people may be hesitant to report COVID-19

symptoms if they are placed in the same housing unit used for disciplinary

segregation.

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94. The quarantine procedure described by detainee C.C. is not in accordance with CDC guidelines. (C.C. Decl. ¶¶ 4-10, 14.) C.C. described being placed on quarantine in “the hole” (a segregation or lockdown unit) because his cellmate had COVID-19 symptoms. (Id. ¶ 5.) He states that he was quarantined with his symptomatic cellmate and another man, in a dirty segregation cell. (Id.) He was locked down for 23 hours per day or more while in quarantine. (Id. ¶ 14.) C.C. became ill while in quarantine. (Id. ¶ 6.)
95. The Jail’s failure to follow CDC quarantine guidelines can result in the spread of COVID-19, endangering staff, detainees, and the general public.
K. Failure to Suspend Work Release and “Weekender” Program 96. To help stop the spread of COVID-19, jail administrators need to limit the number of people coming into their facilities. To that end, the CDC encourages jails to “[c]onsider suspending work release and other programs that involve movement of incarcerated/detained individuals in and out of the facility, especially if the work release assignment is in another congregate setting . . . .” (CDC Interim Guidance, at p. 8 (Mar. 22, 2020.) The Clayton County Jail continues to operate its “weekender” jail program and work release program. This program increases the risk that COVID-19 will be brought into the facility. Its suspension should be a top priority.
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VI. Conclusions and Recommendations 97. The outbreak at the Clayton County Jail is at a critical juncture, with
72 detainees having tested positive for the virus as of July 10, 2020. This is a dangerous situation and urgent action is required to protect detainees, staff, and the community.
98. Many of the people who wrote declarations talked about what is like to be housed at the Clayton County Jail and to be fearful about catching the virus there. Some have recounted their experiences of becoming ill in the jail under unacceptable conditions of confinement. In their grievances and declarations, detainees express their fears of dying of COVID-19 inside the jail.
99. For the reasons discussed above, I recommend that the Clayton County Jail should:
a. Provide comprehensive education to all detainees and staff with ongoing updates on how to protect oneself from COVID-19 as well as the status of infections within the jails;
b. Post educational COVID-19-related signs in compliance with CDC recommendations;
c. Provide no cost access to sufficient quantities of hand soap and paper towels, and provide additional soap to detainees immediately upon request;
d. Eliminate medical co-pays for the duration of the pandemic; e. Provide alcohol-based hand sanitizer in locations where dispensers
can be regularly viewed by staff;
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f. Provide for continual, around the clock cleaning of all commonly shared areas, especially the toilet areas in dormitory settings;
g. Provide CDC-approved cleaning supplies so that prisoners can clean their cells and personal dormitory areas;
h. Provide cloth face coverings for detainees and staff, and provide direction on how to use cloth face coverings, how to keep them clean and how to get another when necessary;
i. Ensure a schedule for regular laundering of cloth masks; j. Search for opportunities to expand bed space for prisoners; k. Seek to eliminate dangerous crowding during medication and meal
distribution and at transport to video court; l. Suspend work release and other programs that involve movement of
incarcerated people in and out of the facility; m. Survey the facility for places where prisoners historically stand in line
and expand those lines so that detainees are 6 feet apart; n. Continue to make efforts to reduce the jail population.
100. I reserve the right to clarify and revise my opinions if I am provided additional information in the case.
I swear under penalty of perjury that the information given herein is true and correct and I understand that a false answer to any item my result in a charge of false swearing.
Sworn by me this 23rd day of July, 2020. s/ Emmitt L. Sparkman
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APPENDIX A

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EMMITT L. SPARKMAN

Olive Branch, Mississippi 38654

@gmail.com

EXPERIENCE: 9/16 – Present Self-Employed-Correctional Consultant

Olive Branch, Mississippi 38654

6/01 – 8/16

Provide consulting, technical assistance and subject matter expert services in the field of corrections.
Mississippi Department of Corrections 723 North President Street Jackson, Mississippi 39202-3097

Director of Education (5/13-8/16) Mississippi State Penitentiary P. O. Box 1057 Parchman, Mississippi 38738
Planned, directed and coordinated Academic and Vocational Programs for the prison complex. Selected Education Program equipment and maintains equipment inventories. Prepared and maintained the annual budget. Responsible for developing Academic and Vocational goals for students/offenders in coordination with the overall Agency Education Program. Supervised professional and clerical staff engaged in providing Academic and Vocational instruction to the offender population.

Case 1:20-cv-02791-ELR-CCB Document 19-4 Filed 07/27/20 Page 47 of 65
Deputy Commissioner-Institutions (11/02-5/13) Central Office 723 North President Street Jackson Mississippi 39202-3097
Direct the Institution Division of the Department of Corrections with a population of approximately 21,000 offenders and 2500 employees consisting of (3) state institutions, (5) private prisons, and (15) regional prisons. The Deputy Commissioner for Institutions is responsible for the programs and services for state offenders incarcerated in state institutions, private facilities, regional facilities and county jails. The Institution Division has an annual operating budget exceeding 200 million dollars.
Superintendent (2/10-5/12) Mississippi State Penitentiary P. O. Box 1057 Parchman, Mississippi 38738
Direct the operations of a prison complex with 6 correctional facilities and 1000 employees housing a maximum population of 3500 offenders. The prison complex consists of two areas supervised by a Warden reporting to the Superintendent. Minimum to maximum custody offenders including death row were incarcerated at the institution. The Superintendent manages an annual operating budget of approximately 70 million dollars.
Superintendent (6/01 - 11/02) Mississippi State Penitentiary P. O. Box 1057 Parchman, Mississippi 38738
Directed the operations of a prison complex with 18 correctional facilities and 1580 employees housing a maximum population of 5551 offenders. The prison complex consisted of five areas with each area supervised by a Warden reporting to the Superintendent. Minimum to maximum custody offenders including death row were incarcerated at the institution. The Superintendent managed an annual operating budget of approximately 70 million dollars.
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9/96 - 6/01 11/92 - 8/96 5/90 - 10/92

Wackenhut Corrections Corporation 4200 Wackenhut Drive #100 Palm Beach Gardens, Florida 33410
Warden Marshall County Correctional Facility P.O. Box 5188 Holly Springs, MS 38634
Managed daily operations of a 1,000-bed medium security institution by contract for the Mississippi Department of Corrections. Ensure compliance with established Corporate and Department of Corrections policies and procedures. Responsible for a $10.4 million annual budget and a staff of 241 employees.
Kentucky Department of Corrections Adult Correctional Institutions P. O Box 2400 Frankfort, KY 40601
Warden Northpoint Training Center P.O. Box 479, Burgin, KY 40310 Managed daily operations of a 938-bed medium security institution to ensure compliance with established policies and procedures. Maintained fiscal policy and supervised staff of more than 280 employees. Was responsible for a $10.6 million annual budget.
Concept, Incorporated P.O. Box 333 Louisville, Kentucky 40201
Facility Director Pre-Parole and Intermediate Sanction Facility Mineral Wells, Texas and Pre-Parole Facility Bridgeport, Texas.
Served as Facility Director of a 600-bed male Pre-Parole Facility, 200bed male Intermediate Sanction Facility in Mineral Wells, Texas and a 100 bed Female Pre-Parole Facility in Bridgeport, Texas. Responsible for overall management of the facilities with 290 employees and annual budgets exceeding ten million dollars. Initial employment was as Deputy Director of Security and promoted progressively to Facility Director over three institutions.

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1985 - 1990 1988 - 1989 1984 - 1988

Brazoria Co. Alcohol/Education Program P.O. Box 1300, Angleton, TX 77516-1300
Instructor Served in this position while employed by the Brazoria County Juvenile and Adult Probation Departments. Instructed persons required by the Courts to attend Alcohol Education Classes. Developed lesson plans. Maintained class records and appropriate statistics. Evaluated participants to determine probability of future alcohol problems and made appropriate referrals.
Brazoria County Juvenile Probation Department County Road 171, Angleton, TX 77515
Detention Superintendent/Intake Supervisor Supervised three Juvenile Probation Officers, twelve detention workers and support staff. Directed daily operations. Screened new referrals and reviewed cases forwarded to the District Attorney. Implemented programs and services required by the Brazoria County Juvenile Board of Judges and Texas Juvenile Probation Commission.
Brazoria County Adult Probation Department P.O. Box 1300, Angleton, TX 77516-1300
Intensive Supervision Officer Supervised high-risk probationers. Ensured all prospective candidates for intensive supervision met the stated eligibility criteria. Developed and implemented supervision plans. Prepared presentence and post-sentence investigations. Provided quarterly reassessment reports to the Texas Adult Probation Commission Case Classification System and Strategies for Case Supervision System.
Initial employment was a Probation Officer supervising 170 misdemeanor and felony adult probationers. Conducted office visits for probationers and made field contacts. Initiated revocation proceedings and prepared pre-sentence investigations.

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1975 - 1984

Texas Department of Corrections P.O. Box 99 Huntsville, Texas 77342
Major of Correctional Officers (1982 - 1984) Ramsey II Unit, Rosharon, TX 77583 Supervised 175 uniformed personnel on a unit with 1,000 high-risk inmates. Directed the operation of all departments within facility. Planned and maintained overall security.
Captain of Correctional Officers (1981-1982) Ferguson Unit, Midway, TX 77852 Essentially the same duties as that of Major. Supervised 240 employees and 2,500 first-offender inmates between ages 17-21.
Education Consultant (1978 - 1981) Eastham Unit, Lovelady, TX 75851 Scheduled college level academic/vocational classes. Supervised staff of 20-25 instructors and provided security for staff and inmates in facility of 3,000 multi-recidivist inmates. Coordinated programs through Lee College, Baytown and Windham School System, Huntsville, Texas.
Correctional Officer II (1976 - 1978) Maintained security in academic/vocational areas under direction of the Educational Consultant. Assumed duties in his absence.
Correctional Officer I (1975 - 1976) Custodial supervision of 400 inmates.

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PROFESSIONAL TRAINING:
PRISON RAPE ELIMINATION ACT (PREA) STANDARDS AUDITOR TRAINING, Bureau of Justice and the PREA Resource Center, Completed June 2013. EMERGENCY PREPAREDNESS INCIDENT COMMAND SYSTEM FOR CORRECTIONS, National Institute of Corrections, United States Department of Justice, Completed August 2008 ADVANCED MANAGEMENT STRATEGIES FOR PRISON DISTURBANCES, National Institute of Corrections, United States Department of Justice, Completed 1996. MOTIMER-FILKINS COURT PROCEDURES FOR IDENTIFYING PROBLEM DRINKERS EVALUATOR’S COURSE, Texas Adult Probation Commission and Texas Commission of Alcoholism. Certified March 1986. STRATEGIES FOR CASE SUPERVISION, Texas Adult Probation Commission and Texas Commission of Alcoholism, Completed December 1985. CASE CLASSIFICATION, Texas Adult Probation Commission, Completed July 1985. ALCOHOL RELATED TRAFFIC OFFENDER EDUCATION, Certification Administrator/Instructor Course, Sam Houston State University, Huntsville, Texas, Completed January 1985. ADULT BASIC PROBATION OFFICERS WORKSHOP, Texas Probation Training Academy, Criminal Justice Center, Sam Houston State University, Huntsville, Texas, Completed April 1984. EVELYN WOODS READING DYNAMICS COURSE, Huntsville, Texas, Completed April 1979.
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PROFESSIONAL SERVICES:

8/95 - Present

Certified Auditor. Accreditation Program, American Correctional Association, 206 North Washington Street, Alexandria, Virginia.

8/95 – 8/96

Adjunct Instructor, Criminal Justice, Correctional Services, Eastern Kentucky University, Richmond, Kentucky.

EDUCATION:

1993 - 1999

EASTERN KENTUCKY UNIVERSITY, Richmond, KY; M. S. in Criminal Justice-General Studies

1981

TEXAS A&M UNIVERSITY, Bryan/College Station, TX; 36 hours in Correctional Supervisor Training

1975 - 1978

SAM HOUSTON STATE UNIVERSITY, Huntsville, TX; B.S. in Criminology and Corrections

1974 - 1975

ALVIN COMMUNITY COLLEGE AND PARIS JUNIOR COLLEGE, Paris, TX

1970 - 1974

CLARKSVILLE (Texas) HIGH SCHOOL

PROFESSIONAL ACHIEVEMENTS:

WARDEN OF THE YEAR, 2002, North American Association of Wardens and Superintendents

CRIMINAL JUSTICE PROFESSIONAL OF THE YEAR, 2001, Mississippi Association of Professionals in Corrections

WARDEN OF THE YEAR, 1997, Wackenhut Corrections Corporation.

EDUCATION CONSULTANT OF THE YEAR, 1981, Texas Department of Corrections.

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PROFESSIONAL AFFILIATIONS:

American Correctional Association North American Association of Wardens and Superintendents

PERSONAL:

Date of Birth: Health: Marital Status:

1956 Excellent Married

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Publications Terry A. Kupers et al, “Beyond Supermax Administrative Segregation: Mississippi’s Experience Rethinking Prison Classification and Creating Alternative Mental Health Programs.” Criminal Justice and Behavior, Volume 36 Number 10, October 2009. Copyright 2009 International Association for Correctional and Forensic Psychology.
Emmitt L. Sparkman, Kevin I. Minor, and James B. Wells, “A Comparison of Job Satisfaction Among Private and Public Employees.” Copyright 2000 by Roxbury Publishing Company.
Thesis Job Satisfaction of Kentucky Correctional Employees: A Comparison of Private and Publicly Operated Prisons, Eastern Kentucky University, December, 1999.
Presented Publications “A Comparison of Job Satisfaction Among Private and Public Employees,” Academy of Criminal Justice Sciences Annual Meeting; New Orleans, Louisiana, March 2000. Kevin I. Minor PhD, James B. Wells, PhD and Emmitt L. Sparkman
Conference/Training Presentations “What Works? Best Practices in Reentry Initiatives”. Panel Presenter. Reentry Symposium. Mississippi Department of Corrections. June 21, 2018.
“Reform Efforts in the United States”. Panel Presenter. International and Interdisciplinary Perspectives on Prolonged Solitary Confinement”. University of Pittsburg School of Law. April 15-16, 2016.
“Using Administrative Segregation to Manage Offenders”. American Correctional Association, Winter Conference Workshop: January 28, 2013 Houston, Texas.
“Southern Legacies: North American Association of Wardens and SuperintendentsWardens of the Year Experiences”. North American Association of Warden and Superintendents, 2009 Training Conference. April 9, 2009 Memphis, Tennessee.
“Hurricane Katrina: The Mississippi Department of Corrections Experience”. 4th Annual Correctional Security Conference. October 2007 Cincinnati, Ohio.
“A Look Inside Death Row”. American Correctional Association, 136th Congress of Correction Workshop: August 16, 2006 Charlotte, North Carolina.
“The Mississippi Department of Corrections Hurricane Katrina Experience”. National Institute of Corrections/Maryland Department of Public Safety and Correctional Services Conference of Regional Interstate Emergency Agreements: May 8-10, 2006 Baltimore, Maryland.
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Expert Witness Nancy Kennedy, as Special Administrator of the Estate of Jessica Joy Kennedy vs. Kenny Boone, individually and in his official capacity as Sheriff of Florence County, Florence County Sheriff’s Office and Deputy Sheriff Shelia Reed. C/A No.: 2:18-cv00043-AMQ-MGB. In the United States District Court for the District of South Carolina Florence Division. Defendant Expert Jail Operations. Case Review. (Pending)
Jason Dunn v Management Training Corporation and John and Jane Does 1-100. In the United States District Court for the Southern District of Mississippi Western Division. Plaintiff Expert Prison Operations. Case Review. (pending)
Trevell Garner v County of Orangeburg, Sheriff Leroy Ravenell in his official capacity as Sheriff of Orangeburg County, Orangeburg County Detention Center, and Southern Health Partners, Inc. State Case: 2017-CP-38-01148. Defendant Expert Jail Operations. Case Review. Case Settled.
Gary Locklear, individually and a Personal Representative of the Estate of Roy Locklear vs. Marlboro County Sheriff’s Office, Marlboro County Detention Center, Dr. Charles Bush, Southern Health Partners, and South Carolina Law Enforcement Division: C/A No.: 2016-NI-34-00003. In the Court of Common Pleas, Fourth Judicial Circuit County of Marlboro: C/A No.: 2017-CP-34-00064. Defendant Expert Jail Operations. Case Review. (pending)
Ahmad Ajaj v United States of America; Federal Bureau of Prisons: Civil Action No. 15-cv-00992-RBJ-KLM. Plaintiff Expert Prison Operations. Case Review, Expert Report, Deposition, and Trial Testimony.
Steven Spencer vs. South Carolina Department of Corrections. Case No.: 202015-CP-3-0229.In the Court of Common Third Judicial Circuit. Defendant Expert Prison Operations. Case Review. Case Settled.
Rodney Parker SCDC #315646, Plaintiff, v Warden Stevenson; Major Sutton; Captain Washington; Lt. Jackson; Sgt. Esterline; Sgt. JC Williams; Ofc. Beckett; Ofc. McCoy; Ofc. Suarez; Ofc. Dooley; Nurse K. McCullough; and Nurse Jane Doe, Defendants: Civil Action No.: 5:13-cv-02795-TLW-KDW. In the United States District Court. For the South Carolina Florence Division. Defendant Expert Prison Operations. Case Review and Expert Report. Case Settled.
Maxine Massey, individually and on behalf of the Estate of Thurston Massey, Deceased, v Orangeburg County Detention Center, the County of Orangeburg, South Carolina Department of Public Safety-Highway Patrol Officer Matthew D. Ocasio, individually And/or in a representative capacity, Vernetia Dozier, individually and/or in a representative capacity, Defendants: Case Number: 9:16-cv-03478-JMC-BM In the United States District Court. For the District of South Carolina Orangeburg Division. Defendant Expert Jail Operations. Case Review and Expert Report. Case Settled.
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Antonio Andres Lechuga, Plaintiff, vs. Maricopa County Sheriff Joe Arpaio; Detention Officer Kevin Holsom and Spouse Holsom, husband and wife, Defendants: Case 16CV-01178-PHX-DJH (JZB). In the United States District Court. District of Arizona. Defendant Expert Jail Operations. Case Review. Case Settled.
Antonio Andres Lechuga v. Maricopa County, et al: Case No. 16-01724-PHX-DJH (JZB). In the United States District Court. District of Arizona. Defendant Expert Jail Operations. Case Review. Case Settled.
Christie Ellis, As Guardian of Kendrick C. Watson vs. Tim Helder, Washington County Sheriff; Randall Denzer, Chief Jail Administrator; Lauren Jones, Jailer; James Morse, Jailer; Corporal T. Cobb, Officer; Mark Cuzick, Jailer; Brandon Muggy, Jailer; and John and Jane Does 1-5: Case 5:16-cv-05056-TLB. United States District Court. Western District of Arkansas. Fayetteville Division. Plaintiff Expert Jail Operations. Case Review. Case Settled.
Miguel Angel Herrera Alderete v. Joseph M. Arpaio, in his official capacity as Sheriff of Maricopa County Arizona, et al.: Case 2:16-cv-01175-SPL-DMF. United States District Court, District of Arizona. Defendant Expert Jail Operations. Expert Report. (Pending)
Antonio Crawford vs. Chris Hunt, Sgt; E. Bittinger, DHO; Tony Smith, Captain; Tracy Sims, Contraband Officer, and David Craig III, Sgt.: C/A No.: 8:15-cv-01362-MGLJDA. In the District Court of the United States, District of South Carolina, Anderson/Greenwood Division. Defendant Expert Prison Operations. Case Review and Expert Report. Case Settled.
Sandra Johnson, individually and as Personal Representative of the Estate of Charles Tucker, Plaintiff, vs. Warden Willie L. Eagleton, Officer Chaka Ray, Officer Rolando Raigoza, Lieutenant Ronald Brayboy, South Carolina Department of Corrections, Defendants: C/A No. 0:15-15-cv-04934-JFA-PJG. In the United States District Court, District of South Carolina, Florence Division. Defendant Expert Prison Operations. Case Review and Expert Report. Case Settled.
The Estate of Robert Vallina, et al. Plaintiffs, v. The County of Teller Sheriff’s Office and its Detention Facility, et al. Case No. 15-cv-01802-RM-CBS, filed in the United States District Court, for the District of Colorado. Defendant Expert Jail Operations. Case Review and Expert Report. Case Dismissed on Summary Judgment.
Boatwright v Barnwell County Detention Center County, et. al, In the Court of Common Pleas: State Case: 2015-CP-06-00364. Defendant Expert Jail Operations. Case Review and Expert Report. Case Settled.
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Justin Conrad v. Captain Donnie Stonebreaker, et. al, United States District Court, District of South, Columbia Division: Case No.: 4:15-cv-03374-RMG-TER: and Justin Conrad v. South Carolina Department of Corrections et. al, In the Court of Common Pleas: Case No.: 2014-CP-31-190. Defendant Expert Prison Operations. Case Review and Expert Report. Case Settled.
Richard Campodonico v. Captain Donnie Stonebreaker et. al, United States District Court, District of South, Columbia Division: Case No.: 4:15-cv-03373-RMG-TER and Richard Campodonico v. South Carolina Department of Corrections et. al, In the Court of Common Pleas: Case No.: 2014-CP-31-192. Defendant Expert Prison Operations. Case Review and Expert Report. Case Settled.
Angela Parker Chavis, Individually and as Personal Representative the Estate of James Parker, Plaintiff vs. Willie Bamberg, Lt. Kim Fisk, Sgt. Christopher James, Ofc. Latoya Echols, and Ofc. Harrie Mintz, Defendants. United States District Court. District of South Carolina. Orangeburg Division. C/A No.: 0:16-cv-00240-DCN-PJG. Defendant Expert Jail Operations. Case Review. (Pending)
Angela Parker Chavis, Individually and as Personal Representative the Estate of James Parker, Plaintiff vs. Orangeburg County, et al. State of South Carolina. County of Orangeburg. In the Court of Common Pleas. 2015-CP-38-00302. Defendant Expert Jail Operations. Case Review. (Pending)
Johnny Eason, Individually and as Personal Representative of the Estate of Shannon Eason, Plaintiff vs. Willie Bamberg, Capt. Leola McCutchen, Sgt. Shaletha Murphy, Lt. Carolyn Murdock, Ofc. Tahsha Jarrett, and Ofc. Toni Bradley. United States District Court. District of South Carolina. Orangeburg Division. C/A No.: 9:16-CV-748.RBHBM. Defendant Expert Jail Operations. Case Review. Case Settled.
Johnny Eason, Individually and as Personal Representative of the Estate of Shannon Eason, Plaintiff vs. Orangeburg County, et al. State of South Carolina. County of Orangeburg. In the Court of Common Pleas. 2015-CP-38-00608. Defendant Expert Jail Operations. Case Review. Case Settled.
Lymisha Ryant, Individually and as Personal Representative of the Estate of Tony Glen Tyler, Plaintiff. v. Willie Bamberg, Sgt. Edward Rawls, Roy Brooks, Melanie Williams, Harrie Mintz, Defendants. United States District Court. District of South Carolina. Orangeburg Division. Civil Action No: 5:15-cv-02035-JMC-PJG. Defendant Expert Jail Operations. Case Review. Case Settled.
June Green, as Personal Representative of the Estate of Vernon Green, Jr. vs. South Carolina Department of Mental Health, et al. In the Court of Common Pleas for the Fifteenth Judicial District, County of Richland, the State of South Carolina. C/A No. 2015-CP-400-6222. Defendant Expert Correctional Facility Operations. Case Review. Case Settled.
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Deddrick Ervin vs. South Carolina Department of Corrections. In the Court of Common Pleas for the Fourteenth Judicial District, County of Allendale, the State of South Carolina. Civil Action No.: 2014-CP-03-185. Defendant Expert Correctional Facility Operations. Case Review, Expert Report and Deposition. Case Settled.
Joseph Raymond Poole as Personal Representative for the Estate of Joseph Raymond Poole II v. South Carolina Department of Corrections, Joseph McFadden as Warden for the Lieber Correctional Institution and Lieber Correctional Institution. In the Court of Common Pleas for the Fifteenth Judicial Circuit, County of Richland, the State of South Carolina C/A No. 2014-CP-18-2021. Defendant Expert Prison Operations. Case Settled.
Andrei Lele v. Maricopa County, a political subdivision of the State of Arizona: Sheriff Joseph Arpaio, in his official capacity as the Sheriff of Maricopa County. In the Superior Court of the State of Arizona. In and for the County of Maricopa County. Complaint No.: CV2014-054268. Defendant Expert Jail Operations. Case Review and Expert Report. Case Settled.
Lymisha Ryant, Individually and Personal Representative of the Estate of Tony Glenn Tyler v. Orangeburg County, South Carolina et al. In the Court of Common Pleas. Case No.: 2014-CP-38-962. Defendant Expert Jail Operations. Case Review. Case Settled.
Jenny Hearn, Individually and as a Personal Representative of Nathaniel P. Hearn v. Orangeburg County et al. In the Court of Common Pleas. Case No.: 2014-CP-38-96. Defendant Expert Jail Operations. (Pending)
Daniel Nichols v. Sheriff Joseph Maricopa County, et al. The United States District Court In and For the District of Arizona. Case No. 2:15-CV-01609-DJH. Defendant Expert Jail Operations. Case Review. Case Settled.
Michael J. Richard v. Maricopa County et al. The United States District Court. District of Arizona. Case No: CV14-02319-PHX-SPL. Defendant Expert Jail Operations. Case Review. (Pending)
Frank Staples v. Richard W. Gerry, Warden, New Hampshire State Prison, et al. Complaint: Case Number 14-cv-473- JL. Defendant Expert Prison Operations. Expert Report. Case Dismissed.
Melissa Poore, et al. v. Avalon Corrections Services, Inc., d/b/a Turley Residential Center, LLC, et al. Complaint: Case Number CJ-2013-3747. Plaintiff Expert Failure to Protect. Expert Report. Case Settled.
Russell Walker, Individually, and on behalf of the statutory beneficiaries of Douglas Walker, deceased; and Estate of Douglas Walker, an entity established under the probate laws of the State of Arizona v. Sheriff Joseph Arpaio, et al. Complaint: Case
13

Case 1:20-cv-02791-ELR-CCB Document 19-4 Filed 07/27/20 Page 59 of 65
Number 2:15 CV-00226-SPL. Defendant Expert Classification. Case Review, Deposition, and Trial Testimony. Jury Verdict for the Plaintiff.
Mary Ellen Klatt, as the Personal Representative of the Estate of John Klatt v. Sheriff Joseph Arpaio, et al. Complaint: 2:14 CV-02711-SPL. Defendant Expert Classification. Case Review and Deposition. Jury Verdict for the Plaintiff.
Levi Bing v South Carolina Department of Corrections, et al. In the Court of Common Pleas. Third Judicial District. Case No.: 2011-CP-31-0216. Defendant Expert Prison Operations. (Pending)
Michael Furtick v Lt. Kim Fisk, Officer Terrance Williams, Officer Chico Salley, and Officer LaQuanna Shanee Aiken. In the United States District Court for the District of South Carolina, Orangeburg Division: Docket No.: 4:14-cv-2884-BHH-TER. Defendant Expert Prison Operations. Case Review. Case Settled.
Brandon Glover v Jimmie Antonio Williams, et al. In the Court of Common Pleas: Civil Action No.: 2014-CP-31-126. Defendant Expert Prison Operations. (Pending)
Anthony L. Mann v Lt. C. Failey, et al. In the United States District Court for the District of South Carolina: Civil Action No. 011-cv-02232-RMG. Defendant Expert Prison Operations. Expert Report. Trial and Partial Jury Verdict for Plaintiff.
Bryan Clyburn v South Carolina Department of Corrections et al. In the Court of Common Pleas: Civil Action No. 2014-CP-27-018. Defendant Expert Prison Operations. Case Review. Case Settled.
Jonathan Bradley Lisle v South Carolina Department of Corrections et al. In the Court of Common Pleas: Civil Action No. 2014-CP-40-6208. Defendant Expert Prison Operations. Summary Judgment for the Defendants.
Christopher Ford v South Carolina Department of Corrections et al. In the Court of Common Pleas: Civil Action No. 2013-CP-18-1238. 2014. Defendant Expert Prison Operations. Summary Judgment for Defendants Prior to Trial.
Christopher Lemear v. William Wrenn, Commissioner, et al. Merrimack County Superior Court Docket No. 217-2013-CV-00372. Defendant Expert. Prison Operations and Classification. Case Review and Expert Report. 2014. Case Dismissed.
Leaphart v. South Carolina Department of Corrections et al. Civil Action Number: 2012CP-35-40. Case Review for Defendants. 2014. Case Settled.
Tolen v. South Carolina Department of Corrections et al. Civil Action Number: 2012CP-35-39. Case Review for Defendants. 2014. Case Settled.
14

Case 1:20-cv-02791-ELR-CCB Document 19-4 Filed 07/27/20 Page 60 of 65
Leaphart v Warden Leroy Cartledge et al: Civil Action Number 1:13-cv-01564-DCNSVH. Case Review for Defendants. 2014. Case Settled.
Tolen v Warden Leroy Cartledge et al: Civil Action Number 1:13-cv-01565-DCNSVH.Case Review for Defendants. 2014. Case Settled.
Susan Piazzola, as Personal Representative of the Estate of Saverio E. Piazzola v. Lieber Correctional Institution and South Carolina Department of Corrections et al, Civil Action Number: 2012-CP-18-2151. Case Review for Defendants. 2013-2014.
John Doe Plaintiff vs. Board of County Commissioners of Payne County and Advanced Correctional Healthcare, Inc. Case No. CIV-13-108-F. Plaintiff Expert: Case Review, Expert Report and Witness for Trial (No Testimony)-Jail Classification and Operations. 2013-2014. Jury Verdict for the Defendants.
George Ruiz et al. v. Edmund G. Brown, Jr., et al. United States District Court, Northern District of California, Docket Number: 09-05796 CW. Plaintiff Expert-Corrections. 20132015. Case Settled.
Mack Myers v Paula Rector Jackson, et al. 0:12-cv-02526-TMC-PJG. Defendant Expert: Case Review and Expert Report-Corrections Facilities Management and Operations. 2013-2014. Dismissed with Parties Reaching a Non-Monetary Settlement.
Russell Dawson v. South Carolina Department of Corrections et al, Civil Action Number: 2010-CP-18=1922 and Russell Dawson v. McKiver Bodison, Warden et al, Civil Action Number 8:11-1781-JFA-JDA, Claim Number: 77177. Case Review for Defendants. 2013.
Odella May Smith, Personal Representative of the Estate of Eddie Hue Smith, Jr., v. Arkansas Department of Corrections, et al: Number: 12-0500-CC Arkansas State Claims Commission. Defendant Expert: Testified on Correctional Facility Security and Operations. October 10, 2012. (Reduced Monetary Award for Loss Claim)
Louis Henderson, et al, v. Kim Thomas, Commissioner, Alabama Department of Corrections, et al: Civil Action Number: 2:11cv224-MHT Middle District Alabama. Deposition for Plaintiff-Care, Custody, and Control Mississippi Department of Corrections HIV/AIDS Offenders. June 5, 2012.
Baxter Felix Vinson, Jr., v. Sharonda Sutton, et al: Civil Action Number: 0:10-847CMC-PJG. Defendant Expert-Correctional Facilities Management and Operations.
Alice A. Walker, as Personal Representative of the Estate of Daniel Preston Walker v South Carolina Department of Corrections et al; Case Number: 2008-CP-31-0131. Defendant Expert-Correctional Facilities Management and Operations (Case Settled).
Thomas S. Marchese v Sheriff of Horry County, et al: C/A No. 4:08-cv-03706-TLW. Defendant Expert-Correctional Facilities Management and Operations (Case Settled).
15

Case 1:20-cv-02791-ELR-CCB Document 19-4 Filed 07/27/20 Page 61 of 65
Charles Thomas #180540 v. South Carolina Department of Corrections: Civil Action No. : 2008-CP-27-00441. Defendant Expert-Correctional Facilities Management and Operations (Case Settled).
Norman Bradley v. Just Care, Inc. d/b/a Columbia Care Center: Civil Action No. : 08-CP-40-7714. Defendant Expert- Correctional Facilities Management and Operations (Case Settled).
Frederick T. McKnight as Personal Representative of the Estate of Brooks Leon Thomas vs. South Carolina Department of Corrections et al.; Civil Action No. 3:07-3311-MJP. Defendant Expert-Correctional Facilities Oversight and Management (Case Settled).
Julie E. Brabazon, as Personal Representative for the Estate of Jason Michael Gross v. South Carolina Department of Corrections: In the United States District Court for the District of South Carolina, Greenville Division: C/A No. 07-CP-43-2043, Claim Number 35018. December 2008. Defendant Expert-Correctional Facilities Oversight and Management (ongoing).
Robbie Simmons, as Personal Representative for the Estate of Gazzara D. Carson v. South Carolina Department of Corrections: C/A No. 04-CP-34-0413, Claim Number 18467. November 2008. Defendant Expert-Correctional Facilities Oversight and Management (ongoing).
Shylena Martin as Personal Representative of the Estate of Charles Martin v. South Carolina Department of Corrections et al: In the United States District Court for the District of South Carolina, Greenville Division; 6:07-CV-03409-GRA (Survival Action) and 6:07CV-03422-GRA (Wrongful Death Action) Claim Number T38057. May 2008. Defendant Expert-Correctional Facilities Oversight and Management (ongoing).
Deborah Davis, Arthur Bowens, Eric Tate, Keisha Burgess, Earlene Howell and Barbara Beard v. The GEO Group Inc.: In the United States District Court for the Northern District of Mississippi, Western Division; Cause Number 3:06cv85-M-A. May 2007. Defendant Expert Report-Correctional Staff Searches. (Trial-Jury Verdict for the Defendants).
George Brown v South Carolina Department of Corrections, John Ozmint, Director, George Hagan, Head Warden and John Doe Correctional Officers. Federal Case Number 1:06-cv01423-RBH. April 2007. Defendant Expert Report-Correctional Facility Operations. (Case Settled).
Charles Brooks v Richard Stringer, Sheriff of Marion County et al. Civil Action No. 2:04cv120KS-RHW. October, 2006. Defendant Expert Report-Correctional Facility Operations.
16

Case 1:20-cv-02791-ELR-CCB Document 19-4 Filed 07/27/20 Page 62 of 65
Richard D. Passman v Sheriff Joel Thames and CNA Surety. No. 2:05CVB5KS-JMR. February, 2006. Defendant Expert Report-Correctional Facility Operations.
Willie L. Brooks v Edward Neal Martin, American National Bail Bonding Agency, Inc. et al. No. 3:05CV191HTW-JCS. January, 2006. Defendant Expert Report-Offender Commitment and Release Procedures.
Moore v. Fordice, et al. 4:90CV125-JAD. June, 2004. Defendant Expert-Trial, Corrections Issues.
Wanda Langford, Administrator of the Estate of Michael Langford v Union County, Mississippi et al. No. 3:00CV152-P-A (Defendant Expert, Jail Operations and Suicide) Prepared and submitted an expert witness report, attended and participated in the Federal Court Trial. November, 2003. (Case was settled during trial prior to expert testimony being given).
Russell v Robert L. Johnson et al (Mississippi Department of Corrections) No. 1:02CV261JAD. February, 2003. Defendant Expert-Trial, Testified on Correctional Issues.
Underwood v WCC No. 3:01CV179-JAD. January, 2003. Defendant Expert-Trial, Testified on Correctional Administration, Security and Accreditation. (Jury Verdict for the Defendants).
Consulting Miller v Alabama Cases. Juvenile Life Without Parole Resource Project. Consult and Evaluate Mississippi Department of Corrections Prison Records for Antonio McDowell, David Moody and Dillon Seals. January 2019.
State of Mississippi v. Joshua Miller. Case No. 8542-1-2. Consulting and Court Testimony for the Defendant. July 2018.
United States Department of Homeland Security. Office of Civil Rights and Civil Liberties Division. Conditions of Confinement, Subject Matter Expert. June 2018 to Present.
Pulaski County, Little Rock, Arkansas. Consultant for JFA Institute. Retained to Participate in an Assessment of the Pulaski County, Arkansas Criminal Justice System. January 2018 to present.
Sacramento County Jail, Sacramento, California. Consultant for JFA Institute. Retained to Participate in an Assessment of the Sacramento County Jail, Total Separation (T-SEP) Units Inmate Classification and Operations Procedures. March 2017.
17

Case 1:20-cv-02791-ELR-CCB Document 19-4 Filed 07/27/20 Page 63 of 65
Georgia Department of Corrections. Consultant. Retained to provide technical assistance for the Georgia Prisoner Reentry Evidence Based Practices at the Lee State Prison, Georgia Department of Corrections. July 2016-September 2017.
Georgia Department of Corrections. Consultant for the Michigan Council on Crime and Delinquency, Inc., Center for Justice Innovation. Retained to assist with the Georgia Prisoner Reentry Evidence Based Practices at the Lee State Prison, Georgia Department of Corrections. February 2016-June 2016.
United States District Court Southern District of New York. Subject Matter Expert for the Court Appointed Monitor. Mark Nunez, et al. v. City of New York et al. 11 Civ. 5845 (LTS) JCF. October 2015. (ongoing).
South Carolina Department of Corrections. Retained Consultant. In T.R., P.R., and K.W., on behalf of themselves and other similarly situated; and Protective and Advocacy for People with Disabilities, Inc. v. South Carolina Department of Corrections et al. C/A No.: 2005-CP-40-2925. In the Court of Common Pleas Fifth Judicial Circuit. 2014-2016.
Louisiana Department of Public Safety and Corrections. Consultant for JFA Institute. Retained to Participate in an Assessment of the Louisiana Department of Public Safety and Corrections Certified Treatment and Rehabilitation Programs. June-July 2014.
Arkansas Department of Community Corrections. Consultant for JFA Institute. Retained to Participate in an Evaluation of Community Corrections Supervision and Conduct an Assessment of the Omega Technical Violator Center. December 2013.
Federal Bureau of Prisons. Consultant for JFA Institute and CNA. Retained to Participate in the Review of the Federal Bureau of Prisons Use of Administrative Segregation. 2013-2014.
Indiana Department of Corrections. Provided Technical Assistance to JFA Institute Reviewed and Made Recommendations for Indiana Department of Corrections Administrative Segregation. 2013.
Oklahoma Department of Corrections. Participated in a Review and Made Recommendations on the Oklahoma State Penitentiary-Administrative Segregation. 2012.
Colorado Department of Corrections. Provided Technical Assistance on Offender Classification and Administrative Segregation. 2011-2012.
National Institute of Corrections-Colorado Department of Corrections. Evaluated and Provided Technical Assistance on Administrative Segregation of Offenders. 2011.
Mexico Federal Penitentiary System. Evaluated and Provided Technical Assistance on the American Correctional Association Accreditation Process. May 2011.
18

Case 1:20-cv-02791-ELR-CCB Document 19-4 Filed 07/27/20 Page 64 of 65 Vera Institute of Justice: Segregation Reduction Project. Design and Implement Segregation Policy Changes for Illinois, Maryland, and New Mexico Department of Corrections. 2010 to 2013. Georgia Department of Corrections. Evaluated Correctional Staffing at Selected Georgia Department of Corrections Prisons. July 2007. Georgia Department of Corrections. Trained Executive Staff on Staffing Strategies and submitted Recommendations for Staffing Correctional Facilities. November-December 2006.
19

Case 1:20-cv-02791-ELR-CCB Document 19-4 Filed 07/27/20 Page 65 of 65

Emmitt L. Sparkman Correctional Consultant Corrections Services, LLC
Olive Branch, Mississippi 38654 662.231.6872
Fee Schedule

Initial Consultation: No Charge

Expert Services:

$195 per hour plus expenses*

Depositions &: Court Testifying

$1750 per day flat fee plus expenses*

Travel:

½ Hourly Rate plus expenses*

Billings occur monthly and are due within 30 days of the date of the invoice

*Party the service is being provided is responsible for expenses.
File: emmittsparkmanconsultantfeeschedule 5.1.19

Case 1:20-cv-02791-ELR-CCB Document 19-15 Filed 07/27/20 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RHONDA JONES et al., Plaintiffs,
v. VICTOR HILL et al.,
Defendants.

CIVIL ACTION NO. 1:20-CV-2791-ELR-CCB

PROPOSED ORDER Presently before the Court is Plaintiffs’ motion for preliminary injunction. [Doc. __]. Upon consideration of the parties’ submissions, the Court finds that Plaintiffs meet the four requirements for a preliminary injunction. Therefore, the Court GRANTS Plaintiffs’ motion and ORDERS as follows: I. Plan to Address Jail Conditions 1. Defendants shall create and file with the Court within seven days of the date of this Order reasonably specific and detailed written plans—developed in consultation with the Georgia Department of Public Health and/or a qualified medical or public health expert in preventing and mitigating the spread of infectious diseases—for addressing the following matters:
A. Educating detainees, staff members, contractors, and/or vendors

Case 1:20-cv-02791-ELR-CCB Document 19-15 Filed 07/27/20 Page 2 of 10
about COVID-19, including symptoms, the importance of social distancing and frequent hand washing, the proper use of personal protective equipment, and other appropriate measures to prevent or mitigate the spread of the virus that causes COVID-19, with this education continuing on a regular and as-needed basis as more information becomes available about the virus; B. Screening detainees, staff members, contractors, vendors, and/or visitors to the jail for symptoms of COVID-19 upon entry to the jail; C. Maintaining an adequate supply of COVID-19 tests and administering them to (1) all individuals who are booked into the jail; (2) a random, representative sample of all detainees and staff members at least once every 14 days; and (3) all detainees, staff members, contractors, and/or vendors suspected of being infected with the virus that causes COVID-19; D. Responding promptly and effectively when detainees report experiencing symptoms consistent with COVID-19;
2

Case 1:20-cv-02791-ELR-CCB Document 19-15 Filed 07/27/20 Page 3 of 10
E. Detecting, monitoring, documenting, and quarantining or isolating suspected or known cases of COVID-19 among detainees or staff members, including but not limited to taking reasonable steps to identify persons within the jail who have been in contact with a person who has tested positive for or exhibited symptoms of COVID-19;
F. Ensuring that detainees known or suspected to have COVID-19 do not interact with detainees who are not known or suspected to have COVID-19;
G. Creating, posting, and implementing schedules for thorough cleaning and sanitizing of cells, common areas, and objects used by a person known or suspected to have COVID-19;
H. Facilitating at least six feet of distance between detainees and all other persons during all out-of-cell jail operations, including free time, recreation time, sick call, pill call, meal distribution, transport to video court and other group activities;
I. Reassigning detainees within the jail facility as appropriate to maximize the number of detainees assigned a standard bed to
3

Case 1:20-cv-02791-ELR-CCB Document 19-15 Filed 07/27/20 Page 4 of 10
sleep in and minimize the number of detainees required to sleep on the floor; J. Maintaining and providing to detainees, as appropriate, adequate facilities for frequent hand washing, and adequate supplies of personal hygiene items, including soap, hand sanitizer, tissue paper, paper towels, and toothpaste; K. Maintaining, using, and providing to detainees adequate cleaning supplies for cleaning cells, common areas, and fixtures in the jail, including chemical solutions that are effective against the virus that causes COVID-19; L. Creating, posting, and adhering to schedules, and reminding detainees why and how to clean using issued cleaning materials; M. Maintaining and providing to detainees adequate supplies of personal protective equipment and similar items, including clean and serviceable face coverings, N95 or equivalent masks, gloves, face shields, and/or protective outer garments effective to prevent the spread of the virus that causes COVID-19;
4

Case 1:20-cv-02791-ELR-CCB Document 19-15 Filed 07/27/20 Page 5 of 10
N. Creating, posting, and adhering to schedules to clean objects that are frequently touched, including door handles, light switches, sink handles, countertops and tabletops, toilets, toilet handles, recreation equipment, kiosks, telephones, and showers;
O. Providing adequate clothing and laundry service to detainees; P. Maintaining and administering the seasonal influenza vaccine
to all detainees and individuals booked into the jail who agree to be vaccinated; Q. Providing adequate, additional protective measures for all detainees performing work assignments in the jail; R. Providing adequate, additional protective measures for all detainees who are members of the Medically Vulnerable Subclasses, as defined in paragraphs 189 and 194 of Plaintiffs’ complaint (Doc. 1); S. Ensuring that detainees, including those who cannot easily access a kiosk, have ready access to means of reporting medical problems and unsafe conditions of confinement, including, but not limited to, access to grievance and sick call systems;
5

Case 1:20-cv-02791-ELR-CCB Document 19-15 Filed 07/27/20 Page 6 of 10
T. Documenting and monitoring the performance of all COVID-19 prevention and mitigation measures in the jail; and
U. Educating detainees about COVID-19 quarantining and other protective measures to take upon release to the community.
2. For purposes of this Order, the phrase “reasonably specific and detailed written plan” means a description of a course of conduct that would satisfy Rule 65(d) of the Federal Rules of Civil Procedure if adopted by the Court as an injunctive order.
3. Within three days of Defendants’ filing of the written plans discussed in paragraph 1 above, Plaintiffs shall file with the Court written responses to Defendants’ plans identifying any areas in which Defendants’ proposed response is alleged to be insufficient to prevent irreparable harm to detainees. For any matter on which Plaintiffs disagree with the Defendants’ proposed remedial plan, Plaintiff shall propose reasonably specific and detailed substitute measures.
4. The Court will consider the parties’ submissions and will thereafter enter a renewed preliminary injunction that is narrowly drawn, extends no further than necessary to correct the harm the court finds requires preliminary relief, and is the least intrusive means necessary to correct that harm. See 18 U.S.C. § 3626(a)(2). Within 30 days of the Court’s entry of the renewed preliminary
6

Case 1:20-cv-02791-ELR-CCB Document 19-15 Filed 07/27/20 Page 7 of 10
injunction, and every 30 days thereafter, Defendants shall file with the Court and serve on Plaintiffs a status report identifying the jail’s detainee population, the number of active and recovered COVID-19 cases that have been identified in the jail, and Defendants’ efforts to comply with each provision of the preliminary injunction. Within 7 days of each status report filed by Defendants, Plaintiffs may file a response. II. Measures to Aid the Court’s Consideration of Plaintiffs’ Claims for
Release and/or Enlargement 5. The Court recognizes that it has the duty to ensure that each detainee is not facing an unreasonable risk of injury or death from COVID-19 and that, if necessary, the court may order release and/or enlargement where appropriate. The Court is prepared to exercise that authority unless the Defendants devise a remedial plan within 14 days of this Order that will promptly ensure that each detainee no longer faces an unreasonable risk of injury or death from COVID-19. 6. To aid the Court’s evaluation of whether release and/or enlargement is appropriate relief for Plaintiffs and class members’ constitutional and irreparable injuries, Defendants shall provide to the Court and Plaintiffs’ counsel within two days of the date of this Order records sufficient to show the following information, and shall provide updated versions of these documents to the Court and Plaintiffs’
7

Case 1:20-cv-02791-ELR-CCB Document 19-15 Filed 07/27/20 Page 8 of 10
counsel periodically, and no less than every seven days, for the duration of this Order:
A. The names, reasons for detention, incarceration dates, housing assignments, dates of birth, and bond amounts (if applicable) for all current Clayton County Jail detainees;
B. The names and relevant medical conditions of all detainees who are members of the Medically Vulnerable Subclasses, as defined in paragraphs 189 and 194 of Plaintiffs’ complaint [Doc. 1].1
C. The names of all Clayton County Jail detainees who are eligible for earned-time credit, home confinement, and/or other forms of discretionary release from the jail under the Sheriff’s control; and
D. For individuals held on one or more bond orders, Defendants shall identify those individuals who would be eligible immediately for release if they paid the applicable bond amounts.
1 This information shall be provided to the Court under seal and shall be subject to a protective order to be entered by this Court, by separate order.
8

Case 1:20-cv-02791-ELR-CCB Document 19-15 Filed 07/27/20 Page 9 of 10
7. Defendants shall create and file with the Court within seven days of the date of this Order a reasonably specific and detailed written plan by which Defendants or their designees will review each detainee eligible for discretionary release by the Sheriff and determine whether to grant discretionary release to each eligible detainee.
8. To further aid the Court’s evaluation of whether release and/or enlargement is appropriate relief for Plaintiffs and class members’ constitutional and irreparable injuries, Defendants shall create and file under seal with the Court within seven days of the date of this Order a list of all members of the Medically Vulnerable Subclasses that Defendants deem unsuitable for release under any circumstances. The list must describe the asserted reason with reasonable specificity and identify the evidentiary basis for the asserted reason.
9. The parties shall jointly create and file under seal with the Court within 14 days of the date of this Order a list identifying (a) all members of the Medically Vulnerable Subclasses that the parties agree are suitable for release by this Court; and (b) all members of the Medically Vulnerable Subclasses for whom the parties cannot reach an agreement as to the suitability of release, along with a concise statement explaining the bases of the parties’ disagreement.
9

Case 1:20-cv-02791-ELR-CCB Document 19-15 Filed 07/27/20 Page 10 of 10
10. Following receipt of the parties’ submissions pursuant to paragraphs 6 through 9, the Court will issue further orders setting forth a process to determine whether the Court must release certain class members under 42 U.S.C. § 1983, 28 U.S.C. §§ 2241 and 2243; or under the Americans with Disabilities Act and Rehabilitation Act, in order to ensure those persons are not in unreasonable risk of infection from COVID-19.
11. In accordance with 18 U.S.C. 3626(a)(2), the Court finds that the relief set forth above is narrowly drawn, extends no further than necessary to correct the harm the Court finds requires preliminary relief, and is the least intrusive means necessary to correct that harm.
SO ORDERED, this _____ day of ____________________, 2020.
Eleanor L. Ross United States District Judge Northern District of Georgia
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 Case 1:20-cv-02791-JPB-CCB Document 23-1 Filed 08/03/20 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RHONDA JONES, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

VICTOR HILL, in his official capacity as )

Sheriff of Clayton County, Georgia, et al., )

)

Defendants.

)

CIVIL ACTION FILE NO. 1:20-CV-02791-JPB

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

SUBMITTED BY:

Jack R. Hancock A. Ali Sabzevari Jacob W. Loken FREEMAN MATHIS & GARY, LLP 661 Forest Parkway, Suite E Forest Park, GA 30297 (404) 366-1000 (telephone) (404) 361-3223 (facsimile)

Attorneys for Defendants Victor Hill, Roland Boehrer, Terrance Gibson, Kevin Thomas, and Maurice Johnson

Case 1:20-cv-02791-JPB-CCB Document 23-1 Filed 08/03/20 Page 2 of 32
TABLE OF CONTENTS
I. INTRODUCTION ......................................................................................1 II. ARGUMENT AND CITATION OF AUTHORITY ............................... 2
A. The Sheriff and His Employees in Their Official Capacities are Entitled to Eleventh Amendment Immunity ....................................... 2
B. Official Capacity Claims Against Defendants Boehrer, Gibson, Thomas, and Johnson Are Subject to Dismissal as Being Duplicative of Claims Against Sheriff Hill............................................................. 4
C. Plaintiffs’ § 1983 Claims Are Subject to Dismissal Under the PLRA ............................................................................................................. 5
1. Legal Standard on a Motion to Dismiss Under the PLRA............. 5
2. Plaintiffs Must Exhaust Administrative Remedies Before Filing § 1983 Claims................................................................................. 6
3. Plaintiffs Failed to Exhaust Administrative Remedies Before Filing § 1983 Claims ...................................................................... 8
4. Plaintiffs Failed to Follow the PLRA’s Required Procedure to Obtain an Inmate Release Order .................................................. 13
D. Plaintiffs Lack Standing to Bring this Lawsuit Seeking Injunctive Relief ................................................................................................. 14
1. Plaintiffs Do Not Adequately Allege an Injury in Fact ............... 14
2. Plaintiffs Have Not Adequately Alleged Traceability and Redressability Because They Did Not Sue CorrectHealth, LLC............................................................................................... 16

Case 1:20-cv-02791-JPB-CCB Document 23-1 Filed 08/03/20 Page 3 of 32
E. Plaintiffs’ Habeas Claims Are Subject To Dismissal ....................... 18
1. Plaintiffs Have Not Stated a Claim for Habeas Relief Because Their Claims Relate to Conditions at the Jail and Not the Cause or Duration of Their Detention..................................................... 18
2. Plaintiffs’ Habeas Claims Must Be Dismissed Because Plaintiffs Have Not Exhausted Available State Court Remedies ................ 20
F. Plaintiffs Fail to State A Claim Under Title II of The ADA or Section 504 of the RA ....................................................................... 21
G. Plaintiffs’ “Unconstitutional Punishment” Claim in Count I is Subject to Dismissal For Failure to State a Claim ............................ 22
III. CONCLUSION....................................................................................... 25

Case 1:20-cv-02791-JPB-CCB Document 23-1 Filed 08/03/20 Page 4 of 32
I. INTRODUCTION This is a civil rights class action lawsuit filed pursuant to 42 U.S.C. §§ 1983 and §12101, 28 U.S.C. § 2241, and 29 U.S.C. § 794(a) by Plaintiffs Rhonda Jones, Randolph Mitchell, Michael Singleton, and Barry Watkins (“Plaintiffs”), who all either are or were incarcerated at the Clayton County Jail (the “Jail”). (Doc. 1, pp. 5–6.) Plaintiffs seek preliminary and permanent injunctive relief against Defendants Victor Hill, Roland Boehrer, Terrance Gibson, Kevin Thomas, and Maurice Johnson (“Defendants”), in their official capacities, for the release or transfer of Plaintiffs and other inmates, for the mitigation of the alleged conditions in the Jail, and to require “safe and sanitary” conditions of confinement in the Jail. (Id., p. 109.) Plaintiffs also seek an issuance of a writ of habeas corpus, and an award of attorney’s fees. (Id.) The relevant allegations in this matter are regarding COVID-19 and the Jail. (Id.) Plaintiffs filed their complaint on July 1, 2020. (Doc. 1.) On July 27, 2020, Plaintiffs filed a motion for preliminary injunction (Doc. 19), a motion to expedite hearing on the preliminary injunction (Doc. 20), and a motion to expedite discovery (Doc 21). Defendants intend to respond to these motions separately and show that the conditions at the Jail are not what Plaintiffs portray and significant mitigation protocols are underway to combat COVID-19. However, as shown below, Plaintiffs’ claims are subject to dismissal for several reasons without the Court
- 1 -

Case 1:20-cv-02791-JPB-CCB Document 23-1 Filed 08/03/20 Page 5 of 32
needing to reach Plaintiffs’ motion for a preliminary injunction, hold an evidentiary hearing, or allow for expedited discovery.
First, Defendants are entitled to Eleventh Amendment Immunity. Second, Plaintiffs’ claims against employees of the Sheriff in their official capacities are redundant and subject to dismissal. Third, Plaintiffs failed to exhaust their administrative remedies at the Jail prior to filing this lawsuit as required by the Prison Litigation Reform Act (“PLRA”). Fourth, Plaintiffs lack standing to bring this lawsuit because their allegations of future injury are speculative and they failed to sue the medical provider at the Jail, CorrectHealth, LLC, which is a necessary party. Fifth, Plaintiffs have not stated a claim for habeas relief because their claims relate to alleged conditions at the Jail and not the cause or duration of their detention, and Plaintiffs have not exhausted all available state court proceedings before seeking habeas relief. Finally, Plaintiffs’ allegations fail to state a claim under the ADA or RA, and their unconstitutional punishment claim in Count I is not a proper claim. For these reasons discussed in detail below, Defendants ask that the Court grant their motion and dismiss Plaintiffs’ complaint in its entirety.
II. ARGUMENT AND CITATION OF AUTHORITY A. The Sheriff and His Employees in Their Official Capacities are Entitled
to Eleventh Amendment Immunity “The Eleventh Amendment protects a State from being sued in federal court without the State’s consent.” Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003).
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“To receive Eleventh Amendment immunity, a defendant need not be labeled a ‘state officer’ or ‘state official,’ but instead need only be acting as an ‘arm of the State,’ which includes agents and instrumentalities of the State.” Id. A sheriff “functions as an arm of the State . . . when promulgating policies and procedures governing conditions of confinement at the [county jail].” Purcell v. Toombs Cnty., 400 F.3d 1313, 1325 (11th Cir. 2005). The Eleventh Amendment thus precludes a plaintiff from suing a sheriff when he acts as an arm of the State. Purcell, 400 F.3d at 1325. The same preclusion applies to deputies sued in their official capacities. Scott v. Mercier, 268 F. App’x. 872, 873 (11th Cir. 2008); Scruggs v. Lee, 256 F. App’x. 229, 231-232 (11th Cir. 2007). Under the Ex parte Young exception to Eleventh Amendment immunity, however, prospective injunctive relief is not barred by the Eleventh Amendment. Page v. Hicks, 773 F. App’x 514, 518 (11th Cir. 2019).
Here, Plaintiffs’ claims against Defendants in their official capacities challenging policies concerning conditions of confinement at the Clayton County Jail. (Doc. 1.) While Defendants acknowledge that Plaintiffs’ claims for prospective injunctive relief against the Sheriff in his official capacity are not barred by the Eleventh Amendment under the Ex parte Young exception, all other claims are barred.
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B. Redundant Official Capacity Claims Are Subject to Dismissal While Plaintiffs’ complaint identifies Defendants Boehrer, Gibson, Thomas,
and Johnson as parties in their official capacities, Plaintiffs’ claims against these Defendants are claims, in essence, against Sheriff Hill, who is already named in the complaint. Indeed, “[o]fficial-capacity suit[s] . . . ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165 (1985). As such, “there no longer exists a need to bring official-capacity actions against local government officials, because local government units can be sued directly.” S.W. v. Clayton Cty. Pub. Sch., 185 F. Supp. 3d 1366, 1374-75 (N.D. Ga. 2016) (citing Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991)).
Here, Defendants Boehrer, Gibson, Thomas, and Johnson are employees of the Sheriff. See Manders, 338 F.3d at 1311. Plaintiffs’ suit against these parties in their official capacities is, therefore, technically a suit against Sheriff Hill. Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999) (a suit against a governmental official in her official capacity is deemed a suit against the entity that she represents). Plaintiffs naming of Defendants Boehrer, Gibson, Thomas, and Johnson in their official capacities is duplicative and unwarranted. See S.W. v. Clayton Cty., 185 F. Supp. 3d at 1374-75. Therefore, Defendants Boehrer, Gibson, Thomas, and Johnson should be dismissed from this matter.
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C. Plaintiffs’ § 1983 Claims Are Subject to Dismissal Under The PLRA The Prison Litigation Reform Act, or PLRA, requires that inmates exhaust all
available administrative remedies before filing a lawsuit regarding a jail’s conditions. 42 U.S.C. § 1997e(a). The Supreme Court has held “[t]here is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007); Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[The] requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.”). As discussed below, Plaintiffs failed to exhaust all available administrative remedies regarding their claims brought under §1983 because they either did not file grievances regarding the conditions they complain of, or did not file an appeal.
1. Legal Standard on a Motion to Dismiss Under the PLRA “Deciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008).
First, the court looks to the factual allegations in the defendant’s motion to dismiss and those in the plaintiff’s response, and if they conflict, takes the plaintiff’s version of the facts as true. If, in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed. Id. The PLRA exhaustion defense is generally analyzed using the subject matter jurisdiction standard of Rule 12(b)(1). See Bryant v. Rich, 530 F.3d 1368, 1374–76
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(11th Cir. 2008); Turner, 541 F.3d at 1082 (“This means that procedurally the
defense is treated ‘like a defense of lack of jurisdiction,’ although it is not a
jurisdictional matter.”).
[Second,] [i]f the complaint is not subject to dismissal at the first step, where the plaintiff’s allegations are assumed to be true, the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion. Turner, 541 F.3d at 1082. “Once the court makes findings on the disputed issues of
fact, it then decides whether under those findings the prisoner has exhausted his
available administrative remedies.” Id. at 1083.
2. Plaintiffs Must Exhaust Administrative Remedies Before Filing § 1983 Claims
The PLRA provides in pertinent part:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). The language of the statute demonstrates it applies to inmates
confined in a jail. Kingsley v. Hendrickson, 576 U.S. 389, 402 (2015) (“[The PLRA]
applies to both pretrial detainees and convicted prisoners.”). A court does not have
the discretion to waive the exhaustion requirement and there are no “special
circumstances” exceptions to the exhaustion requirement. Alexander v. Hawk, 159
F.3d 1321, 1325–26 (11th Cir. 1998); see Ross v. Blake, 136 S. Ct. 1850 (2016).
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The PLRA requires “proper” exhaustion. Woodford v. Ngo, 548 U.S. 81 (2006). For inmates to “properly” exhaust their claims, they must “us[e] all steps” in the administrative process, and they must comply with “deadlines and other critical procedural rules.” Id. at 89 (internal quotations omitted). If an administrative remedy is “available,” it must be exhausted. 42 U.S.C. § 1997e(a); Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998). To exhaust all available administrative remedies, inmates must also pursue all administrative appeals. Moore v. Smith, 18 F. Supp. 2d 1360, 1362 (N.D. Ga. 1998). If inmates fail to complete the administrative process or fall short of compliance with the procedural rules governing inmate grievances, they default their claims. Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005). Recently, the Eleventh Circuit has recognized the applicability of the PLRA and the exhaustion procedure to COVID-19 related conditions of confinement claims. See, e.g., Swain v. Junior, 961 F.3d 1276, 1292 (11th Cir. 2020) (finding that the district court erred in refusing to consider the defendants’ arguments with respect to PLRA exhaustion in COVID-19 conditions of confinement case).1
1 See also Sanchez v. Brown, 2020 U.S. Dist. LEXIS 90667, *56 (N.D. Tex. May 22, 2020) (finding that PLRA exhaustion requirements apply to § 1983 claims arising from COVID-19 and conditions of confinement claims); Nellson v. Barnhart, No. 20-cv-00756-PAB, 2020 U.S. Dist. LEXIS 66971, at *13 (D. Colo. Apr. 16, 2020) (finding that plaintiff failed to exhaust his administrative remedies before seeking judicial relief in COVID-19 jail conditions case).
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3. Plaintiffs Failed to Exhaust Administrative Remedies Before Filing § 1983 Claims
The Jail has formal procedures in place for persons confined in the Jail to file
grievances when they feel it is necessary to do so. (See Declaration of Terrance
Gibson attached hereto as Exhibit A, ¶ 3.) The Clayton County Sheriff’s Office
Standard Grievance Procedure (the “Grievance Procedure”) provides:
a. Prior to the filing of a formal written grievance, an inmate shall attempt to resolve his or her grievance informally through discussion with an officer. If this effort fails, the inmate may submit a written grievance. The inmate must file the grievance within five (5) days of the alleged incident. Any grievances unresolved at the time of the inmate’s release shall be considered closed.
e. If the inmate disagrees with the response from the Grievance Officer, the inmate shall submit a written appeal to the Jail Administrator or his/her designee within two (2) days. The Jail Administrator or his/her designee may support the original resolution or offer another. The Jail Administrator or his/her designee shall return his or her decision within ten (10) days.
f. If the inmate fails to submit a written notification of disagreement within two (2) days of the receipt, the grievance shall be considered administratively closed.
(Id., Exhibit 1 (emphasis added).)
Under the Grievance Procedure above, if an inmate intends to file a grievance,
the inmate must do so in writing within five (5) days of the incident giving rise to
the grievance. (Id.) Moreover, if an inmate is displeased with the resolution of the
inmate’s formal grievance, then the Jail has appeal procedures in place stating the
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inmate shall file an appeal to the Jail Administrator or his/her designee within two (2) days. (Id.) Inmates are advised of the Grievance Procedure during inmate orientation. (Id., ¶ 7.) In the complaint, moreover, Plaintiffs show they are aware that the Jail has grievance procedures. (Doc. 1, pp. 22, 24, 48–51.) As shown below, Plaintiffs each failed to exhaust the Jail’s administrative remedies prior to filing suit.
a. Barry Watkins Attached to Lieutenant Terrance Gibson’s Declaration as Exhibit 2 are all of the grievances submitted by Plaintiffs through July 10, 2020. (Exhibit A, ¶ 4 and Exhibit 2 thereto.) The Jail’s records show that Watkins never submitted any grievances related to COVID-19 and the alleged conditions of the Jail prior to filing suit. (Id.) Therefore, Watkins failed to even initiate the grievance procedure necessary to exhaust his administrative remedies.
b. Rhonda Jones The Jail’s records show that Jones never submitted any grievances related to COVID-19 and the alleged conditions of the Jail prior to filing suit. (Id.) On June 4, 2020, however, Jones did submit an appeal to a previously filed grievance requesting to be refunded money, wherein she raised for the first time the following: “THIS PLACE ISNT UPGRADING MEDICAL STANDARDS TO COMPLY WITH COVID 19!!! THE PHONES ARE NOT SANTISED. THERES WATER LEAKING IN MY ROOM. I HAVE HAD 4 NEW ADMITS ROOM MATES
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THAT CAME STRAIGHT TO POPULATION. AND IVE NOT NOTICED ANY USE OF LYSOL. I TEXTED ABOUT THIS TO NO AVAIL. THE STAFF FOCUS ON BEDS BUT NOY LYSOL.” (Id., Exhibit 3, p. 1.) While the new subject matter presented in the appeal was related to purported medical standards, sanitization of phones, a water leak, room assignment, and use of Lysol, this appeal does not properly exhaust administrative remedies because Jones did not follow the Grievance Procedure by first filing her concerns via a grievance as opposed to an appeal. Moreover, the Grievance Procedure provides that “[i]nmates may only address one area of concern per Grievance Form.” (Id., Exhibit 1.) Jones’ attempt to raise multiple issues in an appeal from an unrelated grievance is not a proper method of exhausting the Jail’s administrative remedies.
Even if the Court is persuaded that Jones’ grievance masquerading as an appeal from a separate unrelated grievance is substantively adequate, Jones still failed to exhaust her administrative remedies because she never pursued an appeal from the response. (Id., Exhibit 3.) Therefore, for this additional reason, Jones’s claim is procedurally barred by the PLRA. Moore, 18 F. Supp. 2d at 1362 (holding that inmate must pursue all of his administrative appeals in order to comply with the PLRA’s administrative exhaustion requirement); Mason v. Bridger, 261 F. App’x 225, 229 (11th Cir. 2008) (finding that inmate’s failure to appeal denials of grievances was fatal to consideration of his claims on the merits).
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c. Randolph Mitchell The Jail’s records show that Mitchell submitted a grievance on May 19, 2020 requesting to “speak to someone about a covid 19 test” and that he also wanted a COVID-19 test and a mask. (Exhibit A, Exhibit 2 thereto, p. 7.) However, the notes in response show that he was “scheduled for sick call” and was referred “to security for mask.” (Id.) To the extent Mitchell did not receive the test or the mask, he could have appealed the grievance. However, according to the Jail’s records, Mitchell never pursued an appeal as required under the Grievance Procedure and therefore failed to exhaust his administrative remedies. (Id., Exhibit 3.) Even if Mitchell properly exhausted his administrative remedies, as Plaintiffs concede, Mitchell is no longer incarcerated at the Jail, which “moot[s] his claims.” (Doc. 9, n. 2.) Smith v. Allen, 502 F.3d 1255, 1267 (11th Cir. 2007) (“[t]he general rule in our circuit is that a transfer or release of a prisoner from prison will moot that prisoner’s claims for injunctive and declaratory relief.”).2
d. Michael Singleton Finally, the Jail’s records show that Singleton submitted a grievance on May 15, 2020 requesting masks, cleaning supplies, disinfectant, and “net bags to do our
2 See also Zatler v. Wainwright, 802 F.2d 397 (11th Cir. 1986) (“[i]n view of Zatler’s release, we find that his claims for declaratory and injunctive relief are now moot.”); Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985)(“[a]bsent class certification, an inmate’s claim for injunctive and declaratory relief in a section 1983 action fails to present a case or controversy once the inmate has been transferred.”).
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personal laundry.” (Exhibit A, Exhibit 2 thereto, p. 12.) The notes in response show that “All issues have been addressed.” (Id.) To the extent Singleton had any issues with the response or what he was provided, he could have appealed. Mitchell, however, never pursued an appeal and therefore failed to exhaust his administrative remedies. (Id., Exhibit 3.)
For the reasons above, Plaintiffs’ claims brought under §1983 are procedurally barred by the PLRA for failure to exhaust all available administrative remedies before bringing this suit. Chandler v. Crosby, 379 F.3d 1278, 1288 (11th Cir. 2004) (finding that inmate satisfied PLRA’s exhaustion requirement by following the proper grievance procedure when unsatisfied with response to grievance).3
3 Should the Court find that any of the Plaintiffs properly exhausted the administrative remedies, then the Court should limit Plaintiffs’ claims only to the specific items of concern brought to the Jail staff’s attention, which are sanitization of phones, masks, cleaning supplies, disinfectant, and COVID-19 tests. (Id., Exhibit 2.) Plaintiffs’ challenges to conditions outside of these five specific categories have not been properly brought to the attention of the Jail’s staff through the Grievance Procedure prior to suit and should be dismissed outright for failure to exhaust administrative remedies. Sylvester v. Chandler, No. 07 C 50050, 2010 U.S. Dist. LEXIS 88683, at *13 (N.D. Ill. Aug. 27, 2010) (“Because the June grievance failed to identify misconduct or describe those who treated him badly, it did not provide the prison with any opportunity to address plaintiff’s concern that he was being abused by Dixon nurses. Accordingly, the court finds that plaintiff did not exhaust his remedies with respect to the claims”).
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4. Plaintiffs Failed to Follow the PLRA’s Required Procedure to Obtain an Inmate Release Order
Plaintiffs have requested the “release” of themselves and other inmates held at the Jail. (Doc. 1, p. 109.) Under the PLRA, a federal court may not enter an inmate release order unless there has been a prior order “for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prison release order,” and the defendant “has had a reasonable amount of time to comply with the previous court order[].” 18 U.S.C. § 3626(a)(3)(A).
Additionally, only a three-judge court may enter a prison release order and can only do so after an inmate files an appropriate request. 18 U.S.C. § 3626(3); see Laube v. Haley, 242 F. Supp. 2d 1150, 1152 (M.D. Ala. 2003). The three-judge panel may enter such an order “only if the court finds by clear and convincing evidence that—(i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” 18 U.S.C. § 3626(3).
Here, Plaintiffs may not circumvent the PLRA’s unambiguous requirements to obtain release. Plaintiffs complain about the current conditions of the Jail, and as previously discussed, such complaints fall squarely within the purview
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of the PLRA. Because there has been no prior order entered and this case is not before a three-judge panel, Plaintiffs may not obtain release as an available remedy.4 D. Plaintiffs Lack Standing to Bring this Lawsuit Seeking Injunctive Relief
1. Plaintiffs Do Not Adequately Allege an Injury in Fact While Plaintiffs allege COVID-19 may be a risk to their health if contracted, Plaintiffs have failed to allege they have a real prospect of a future injury manifesting, i.e., contracting COVID-19, and therefore lack standing to seek injunctive relief. Regarding standing to seek injunctive relief, “[b]ecause injunctions regulate future conduct, a party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate—as opposed to a merely conjectural or hypothetical—threat of future injury.” Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994). “And an injunction cannot be fashioned when the prospect of future injury is only speculative; again, there must be a ‘likelihood of substantial and immediate irreparable injury.’” Gagliardi v. TJCV Land Tr., 889 F.3d 728, 734 (11th Cir. 2018) (citing Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)).
4 Should Plaintiffs’ claims proceed, they still “would not be entitled to the relief [they seek] because release from imprisonment is not an available remedy for a conditionsof-confinement claim.” Vaz v. Skinner, 634 F. App’x 778, 781 (11th Cir. 2015).
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Plaintiffs allege that the Jail has “approximately 2,000 detainees” and allege as of June 11, 2020, “32 detainees and 13 staff members” have tested positive for COVID-19. (Doc. 1, p. 4–5.) Plaintiffs therefore contend that only 1.6% of inmates have tested positive for COVID-19 which is far from the “outbreak” Plaintiffs allege has occurred at the Jail. Additionally, the complaint is devoid of any allegations that any inmates at the Jail have died as a result of COVID-19. (Id.)
Plaintiffs’ “prospect of future injury” is only speculative. Plaintiffs do not allege that they have contracted COVID-19 during the pendency of their incarceration. Plaintiffs fail to show in the complaint that they have a greater likelihood of contracting COVID-19 in the Jail as opposed to if they were released and exposed elsewhere. Indeed, the death toll in Georgia, in the United States, and globally as well as the percentages of infection are all greater than in the Jail. Due to the low infection rate at the Jail, Plaintiffs only speculate that they will be exposed to COVID-19, speculate that they may contract COVID-19, and speculate that they would suffer injury thereby. Gagliardi, 889 F.3d at 734. Therefore, because the likelihood of future injury at the Jail is mere guesswork, “[a]nd an injunction cannot be fashioned when the prospect of future injury is only
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speculative,” Plaintiffs lack standing to seek injunctive relief from the Court, and the claims for injunctive relief should be dismissed. 5 Id.
2. Plaintiffs Have Not Adequately Alleged Traceability and Redressability Because They Did Not Sue CorrectHealth, LLC
Plaintiffs seek injunctive relief pertaining to medical education on the novel COVID-19 virus, to change or formulate the medical screening process as they deem fit, for a supply of COVID-19 tests, administration of COVID-19 tests, alteration of existing COVID-19 responses, including detecting, quarantining, evaluating symptoms, and treating COVID-19, and administering influenza vaccinations, to name a few. (See, e.g., Doc. 19-5.)
As Plaintiffs are well familiar with, the medical provider at the Jail is CorrectHealth, LLC. (Doc. 19-9.) However, Plaintiffs did not name CorrectHealth, LLC to this action and therefore lack standing to seek medically-related injunctive relief. The Eleventh Circuit recently explained, “[t]o satisfy the causation requirement of standing, a plaintiff’s injury must be ‘fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.’” Jacobson v. Fla. Sec’y, 957 F.3d 1193, 1207 (11th Cir. 2020). Further, “it must be the effect of the court’s judgment on the defendant—not an absent third party—that redresses the plaintiff’s injury, whether
5 Because Mitchell is no longer subject to any conditions at the Jail, he lacks standing for this additional reason.
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directly or indirectly.” Lewis v. Governor of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019).
Plaintiffs have only named the Sheriff in this action and his employees, even though Plaintiffs are aware that CorrectHealth, LLC is contracted to provide medical care and services at the Jail. (Doc. 19-5.) Thus, even if Plaintiffs obtain all the relief they seek, this Court’s order cannot enjoin “absent nonparties.” Jacobson, 957 F.3d at 1208. Because Plaintiffs seek targeted relief from the Sheriff while leaving out a necessary party, CorrectHealth, LLC, they fail to establish redressability for their claimed “injuries.” Thus, Plaintiffs undermine their own claims of imminent “injury” by leaving out the actual medical provider at the Jail which would necessarily prolong any uniform implementation or enforcement of any order issued by this Court.
Some District Courts have succumbed to the temptation to correct the deficient pleadings of a plaintiff that fails to join all necessary parties, but the Eleventh Circuit decision in Jacobson suggests this Court should refrain from embarking on such a course of action. Jacobson, 957 F.3d at 1209 (“If a plaintiff sues the wrong defendant, an order enjoining the correct official who has not been joined as a defendant cannot suddenly make the plaintiff's injury redressable.”). A declaratory judgment or injunction against the Sheriff here does not apply to CorrectHealth, LLC “who [is] not [a] part[y] to this action.” Id. “Any persuasive
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effect a judicial order might have upon [non-parties] . . . cannot suffice to establish redressability.” Id. at 1208. Therefore, the “failure to join [CorrectHealth, LLC] is an independent reason that [Plaintiffs] lack standing,” id. at 1207, and in turn, this Court should dismiss Plaintiffs’ Complaint because they have not adequately alleged facts sufficient to support standing. E. Plaintiffs’ Habeas Claims Are Subject to Dismissal
1. Plaintiffs Have Not Stated a Claim for Habeas Relief Because Their Claims Relate to Conditions at the Jail and Not the Cause or Duration of Their Detention
A habeas corpus petition under 28 U.S.C. § 2241 is “generally reserved for challenges to execution of a sentence or the nature of confinement, not the validity of the sentence itself or the fact of confinement.” Bryant v. Warden, 738 F.3d 1253, 1288 (11th Cir. 2013). “Habeas is not available to review questions unrelated to the cause of detention. Its sole function is to grant relief from unlawful imprisonment or custody and it cannot be used properly for any other purpose.” Villafuerte v. Warden, Stewart Det. Ctr., No. 4:18-CV-116-CDL-MSH, 2018 U.S. Dist. LEXIS 212877, at *6–7 (M.D. Ga. Nov. 27, 2018) (citing Pierre v. United States, 525 F.2d 933, 93536 (5th Cir. 1976)).
Here, Plaintiffs complain about their conditions of confinement, not the cause for their detention. When claiming inadequate conditions of confinement, a petition for a writ of habeas corpus is not the proper vehicle for such a claim. Vaz v. Skinner,
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634 F. App’x 778, 781 (11th Cir. 2015) (“Petitioner’s § 2241 petition is not the appropriate vehicle for raising an inadequate medical care claim, as such a claim challenges the conditions of confinement, not the fact or duration of that confinement.”); see A.S.M. v. Donahue, No. 7:20-CV-62 (CDL), 2020 U.S. Dist. LEXIS 65226, at *4 (M.D. Ga. Apr. 10, 2020) (finding “writ of habeas corpus is not the appropriate mechanism for seeking the relief Petitioners request” as related to COVID-19 and the conditions of detention center). Therefore, habeas corpus is not available to inmates who complain about the conditions of confinement.
Here, Plaintiffs have not pleaded, and cannot plead, any set of facts under which they could obtain habeas relief. Plaintiffs make a plethora of complaints about the conditions of—not the fact of—their confinement. As three examples: “The overcrowded cells where detainees spend most of their time are almost never sanitized. . . . The 20-year-old jail facility has recurring maintenance issues. . . . In sum, the Clayton County Jail is understaffed, unsanitary, and chronically mismanaged.” (Doc. 1, p. 27, 28, 30.) Such allegations concern the conditions of the Jail, and not the “fact” of Plaintiffs’ confinement.
Whatever their conditions of confinement, they are not related to Plaintiffs’ “fact or duration” of their respective confinements. Therefore, a habeas corpus petition under § 2241 is not the proper vehicle for Plaintiffs to present such claims or allegations and Plaintiffs’ request for such relief should be dismissed.
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2. Plaintiffs’ Habeas Claims Must Be Dismissed Because Plaintiffs Have Not Exhausted Available State Court Remedies
Even if the Court were to determine Plaintiffs could seek relief under § 2241, exhaustion of administrative remedies under state law is a prerequisite to filing a habeas corpus petition. In order to be eligible for habeas relief, Plaintiffs must have exhausted their available state court remedies. O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732 (1999); Reedman v. Thomas, 305 F. App’x 544, 545 (11th Cir. 2008). It is Plaintiffs’ burden to show exhaustion. McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005). A habeas petition must be dismissed if the inmates have not exhausted available state remedies concerning any of their claims. O’Sullivan, 526 U.S. at 852.
Notably, the exhaustion doctrine imposed on § 2241(c)(3) is based on concerns about the state-federal balance in order to protect state courts’ opportunity to confront and resolve initially any constitutional issues arising within their jurisdictions, as well as to limit federal interference in the state adjudicatory process. Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 489–92 (1973). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court.
Habeas relief is available under Georgia law for both pre-trial detainees and post-conviction detainees to challenge the constitutionality of their detention. O.C.G.A. § 9-14-1, et seq. Clayton County courts, along with all courts in Georgia,
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are open and the courts are using all available means to conduct essential hearings. (Fourth Order Extending Declaration of Statewide Judicial Emergency, Supreme Court of Georgia, July 10, 2020.) Plaintiffs do not allege in their complaint that they have made any attempt whatsoever to challenge their detention via state court proceedings first, prior to filing suit. (Doc. 1.) Because Plaintiffs have failed to exhaust state law remedies that are available pursuant to Georgia law, their claims must be dismissed. F. Plaintiffs Fail to State A Claim Under Title II of The ADA or Section 504
of the RA Title II of the Americans with Disabilities Act (“ADA”) prohibits a public entity from discriminating against disabled individuals and states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Similarly, § 504 of the Rehabilitation Act ( “ RA”) protects any “otherwise qualified individual” from “be[ing] excluded from the participation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination” under specified programs or activities “solely by reason of her or his disability.” 29 U.S.C. § 794(a). To state a claim under the ADA and RA, “a plaintiff generally must prove (1) that he is a qualified individual with a disability; (2) that he was either excluded from
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participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff’s disability.” Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1083 (11th Cir. 2007) (emphasis added); see Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000) (“Discrimination claims under the Rehabilitation Act are governed by the same standards used in ADA cases.”).
Here, Plaintiffs contend that they are qualified individuals with disabilities based on their underlying health conditions. Plaintiffs outline the risks of contracting COVID-19 and have asserted that Defendants have generally failed to take appropriate measures to protect all inmates at the Jail. (Doc. 1.) Plaintiffs, however, do not allege sufficient facts to establish that Defendants failed to provide Plaintiffs with any reasonable accommodations by reason of their proposed disabilities—other than immediate release from t h e Jail—or that any specific action was taken against Plaintiffs by reason of their proposed disabilities. (Id.) Accordingly, Plaintiffs’ ADA and RA claims are subject to dismissal for failure to state a claim. G. Plaintiffs’ “Unconstitutional Punishment” Claim in Count I is Subject to
Dismissal For Failure to State a Claim Plaintiffs have improperly attempted to carve out a separate claim for unconstitutional “punishment” in violation of the Fourteenth Amendment, as found
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in Count I of the complaint, in addition to seeking relief from alleged unconstitutional “conditions of confinement” in violation of the Eighth and Fourteenth Amendments, as found in Count II of the complaint. (Doc. 1, pp. 100, 101.)
The Supreme Court held in Bell v. Wolfish, 441 U.S. 520, 535 (1979) that conditions claims brought by pretrial detainees arise under the Fourteenth Amendment, which prohibits punishment prior to the adjudication of guilt. A condition violates the Fourteenth Amendment if it is imposed with the intent, express or inferred, to punish the pretrial detainee. Id. at 538-40. “The Eighth Amendment … ‘cruel and unusual punishments’ standard applies to the conditions of a prisoner’s confinement.” Swain v. Junior, 958 F.3d 1081, 1088 (11th Cir. 2020). This Circuit has held that the decisional law applicable to prison inmates applies equally to pretrial detainees. Hamm v. DeKalb Cty., 774 F.2d 1567, 1574 (11th Cir. 1985); see also Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996). As a result, this Circuit requires a plaintiff, regardless if that plaintiff is a pre-trial detainee or prisoners, challenging the conditions of confinement to show both that the deprivation suffered was objectively serious and that prison officials were deliberately indifferent to the violation of the plaintiff’s constitutional rights. See Evans v. St. Lucie Cty. Jail, 448 F. App’x 971, 973–75 (11th Cir. 2011) (requiring that a pretrial detainee bringing a prison conditions case show that (1) the deprivation
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was “sufficiently serious” and (2) prison officials had a “sufficiently culpable state of mind”).
Here, Plaintiffs have attempted to impose a rational basis test under the Fourteenth Amendment as the proper standard of review for their claims related to the conditions of confinement, which is in direct violation of the principles established by the Supreme Court. Cty. of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S. Ct. 1708, 1715 (1998) (“[I]f a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.”). Plaintiffs use the language “Defendants’ conduct either is not rationally related to a legitimate, nonpunitive government purpose or is excessive in relation to a legitimate, nonpunitive government purpose” to attempt to create a claim for unconstitutional “punishment” in violation of the Fourteenth Amendment, as found in Count I of the complaint. (Doc. 1, p. 100.) However, examination of conditions of confinement is properly analyzed under a deliberate indifference standard under the Eighth and Fourteenth Amendment. See Swain, 958 F.3d at 1088; Hamm, 774 F.2d at 1574. Therefore, Plaintiffs’ claim in Count I should be dismissed, as the claim is an improper carve out of a conditions of confinement claim, which Plaintiffs already assert in Count II.
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III. CONCLUSION “Plaintiffs requested extraordinary relief, but even—especially—in these extraordinary times, the letter of the law must still be followed.” Sanchez, 2020 U.S. Dist. LEXIS 90667, *60. COVID-19 concerns are serious and are causing critical health and public safety issues globally, in this country, in this state, in local governments, including jails, as well as within the framework of businesses and corporations. The seriousness of COVID-19 cannot be ignored. However, Plaintiffs’ complaint, which essentially mirrors complaints filed across the country as a wholesale attack on jails and prisons, must be dismissed outright for the reasons noted above.
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661 Forest Parkway, Suite E Forest Park, GA 30297 (404) 366-1000 (telephone) (404) 361-3223 (facsimile)

FREEMAN MATHIS & GARY, LLP
/s/ A. Ali Sabzevari Jack R. Hancock Georgia Bar No. 322450 jhancock@fmglaw.com A. Ali Sabzevari Georgia Bar No. 941527 asabzevari@fmglaw.com Jacob W. Loken Georgia Bar No. 200193 jloken@fmglaw.com
Attorneys for Defendants

Case 1:20-cv-02791-JPB-CCB Document 23-1 Filed 08/03/20 Page 30 of 32
CERTIFICATE OF COMPLIANCE
I hereby certify, pursuant to Local Rule 7.1(D), that the foregoing
memorandum of law has been prepared in accordance with Local Rule 5.1(C)
(Times New Roman font, 14 point).
This 3rd day of August, 2020.
FREEMAN MATHIS & GARY, LLP
/s/ A. Ali Sabzevari A. Ali Sabzevari Georgia Bar No. 941527 asabzevari@fmglaw.com
Attorney for Defendants
661 Forest Parkway, Suite E Forest Park, GA 30297 (404) 366-1000 (telephone) (404) 361-3223 (facsimile)

Case 1:20-cv-02791-JPB-CCB Document 23-1 Filed 08/03/20 Page 31 of 32

CERTIFICATE OF SERVICE

I hereby certify that I have this day electronically submitted the foregoing

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO

DISMISS to the Clerk of Court using the CM/ECF system which will automatically

send electronic mail notification of such filing to counsel of record who are CM/ECF

system participants:

Ryan Primerano Sarah Geraghty Jeremy Cutting Southern Center for Human Rights 60 Walton Street Atlanta, Georgia 30303 rprimerano@schr.org sgeraghty@schr.org ccutting@schr.org
Stephen L. Pevar American Civil Liberties
Union Foundation 765 Asylum Ave Hartford, Connecticut 06105 spevar@aclu.org

Kosha S. Tucker American Civil Liberties Union
Foundation of Georgia P.O. Box 77208
Atlanta, Georgia 30357 ktucker@acluga.org
Brandon Buskey Robert W. Hunter American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 bbuskey@aclu.org
David C. Fathi American Civil Liberties
Union Foundation 915 Fifteenth Street, Seventh Floor
Washington, DC 20005 dfathi@aclu.org

Case 1:20-cv-02791-JPB-CCB Document 23-1 Filed 08/03/20 Page 32 of 32
This 3rd day of August, 2020
/s/ A. Ali Sabzevari A. Ali Sabzevari Georgia Bar No. 941527 asabzevari@fmglaw.com
Attorney for Defendants
FREEMAN MATHIS & GARY, LLP 661 Forest Parkway, Suite E Forest Park, GA 30297 (404) 366-1000 (telephone) (404) 361-3223 (facsimile)

 
 Case 1:20-cv-02791-JPB-CCB Document 40 Filed 08/31/20 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RHONDA JONES, et al., Plaintiffs,
v. VICTOR HILL, et al.
Defendants.

) ) ) CIVIL ACTION ) ) FILE NO. 1:20-CV-02791-JPB ) ) ) )

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

I. ARGUMENT AND CITATION TO AUTHORITY

A. Plaintiffs Do Not Have Standing to Bring This Lawsuit

1. Plaintiffs Only Allege a Speculative Injury

Defendants established in their initial brief that Plaintiffs’ prospect of future

injury, which can be boiled down to a fear of contracting COVID-19, is only

speculative which is insufficient for standing. Gagliardi v. TJCV Land Tr., 889 F.3d

728, 734 (11th Cir. 2018) (“an injunction cannot be fashioned when the prospect of

future injury is only speculative; again, there must be a ‘likelihood of substantial and

immediate irreparable injury.’”).

Plaintiffs respond that the risk of future injury is not speculative because

COVID-19 is highly contagious, has killed hundreds of thousands of Americans,

jails generally are considered high-risk, and numerous jails have had outbreaks.

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(Doc. 37, pp. 9-10.) But these are precisely the types of vague allegations and assertions that are insufficient to establish standing. Plaintiffs only speculate they will be exposed to COVID-19, speculate they may contract COVID-19, and speculate they would suffer injury thereby. Plaintiffs merely posit the same general fears shared by those outside the Jail and the world.
Plaintiffs also respond that the Jail has inmates that are infected with COVID19 and lean on this allegation as an attempt to prove a non-speculative prospect of future injury; however, this contention fails too because it does not in and of itself establish a “realistic danger” of future injury beyond an assertion that is “hypothetical or conjectural.” Fla. State Conference of the NAACP v. Browning, 522 F.3d 1153, 1159 (11th Cir. 2008). In fact, the Jail has had a very low infection rate (Doc. 31-1, p. 8), and to this date, Plaintiffs have not contracted COVID-19. Plaintiffs’ complaint, moreover, is devoid of any allegations regarding what level of exposure leads to contracting COVID-19, and is further devoid of any specific or scientific data, including any data on how long an individual must be exposed to COVID-19 and to what viral load, before contracting the virus.1 The failure to plead such facts leaves Plaintiffs’ complaint riddled with general fears of what could occur anywhere, which is fatal to Plaintiffs proving they have standing. See Wooden v.
1 For purposes of a simple analogy, exposure to the sun does not mean one will receive a sunburn, and simply stating same does not prove an injury-in-fact.
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Bd. of Regents of the Univ. Sys., 247 F.3d 1262, 1284 (11th Cir. 2001). Therefore, because the likelihood of future injury at the Jail is mere guesswork, and the risk of contracting COVID-19 may be greater outside the Jail, Plaintiffs lack standing to seek injunctive relief from the Court. Gagliardi, 889 F.3d at 734.
2. Failure to Establish Redressability In their initial brief, Defendants established that Plaintiffs cannot establish redressability because they failed to name the medical provider at the Jail, CorrectHealth, LLC (“CorrectHealth”), as a party. Indeed, the Eleventh Circuit recently explained, “[t]o satisfy the causation requirement of standing, a plaintiff’s injury must be ‘fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.’” Jacobson v. Fla. Sec’y, 957 F.3d 1193, 1207 (11th Cir. 2020). In response, Plaintiffs contend that naming CorrectHealth is not necessary for standing because Defendants “are responsible for operating the Jail and providing for Detainees’ needs.” (Doc. 37, p. 14.) There are no allegations in the complaint, however, to show that the Sheriff has control over any of the medically-related decisions by CorrectHealth and its staff, and the Sheriff is not a medical professional. Plaintiffs do not dispute that CorrectHealth is the entity that actually provides for the the medical care and treatment of detainees and inmates at the Jail. Based on this responsibility, medical providers can be subject to liability under Section 1983. The
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Eleventh Circuit has “held that the employees of a private entity hired by a county to provide medical care to jail inmates . . . [are] subject to liability under § 1983.” Ort v. Pinchback, 786 F.2d 1105, 1107 (11th Cir. 1986). Because CorrectHealth is held responsible for its own actions, it is a required party to this action for purpose of redressability.
Finally, Plaintiffs contend that if CorrectHealth is a necessary party, the Court should join it as a party rather than dismiss for lack of standing. (Doc. 37, p. 15.) However, Plaintiffs ignore the fact that the Court would be without jurisdiction to join nonparties. Jacobson, 957 F.3d at 1209 (“If a plaintiff sues the wrong defendant, an order enjoining the correct official who has not been joined as a defendant cannot suddenly make the plaintiff’s injury redressable.”). Therefore, Plaintiffs’ complaint should be dismissed because they have not adequately named a required party and have failed to allege facts sufficient to support standing. B. Plaintiffs’ Redundant Official Capacity Claims Are Subject to Dismissal
Defendants established in their initial brief that it is redundant to sue any of the Sheriff’s employees in their official capacities because the Sheriff is a party to this suit. In response, Plaintiffs contend that naming the Sheriff’s employees in their official capacities is proper because they are seeking injunctive relief. (Doc. 37, pp. 16-17.) However, Plaintiffs have brought claims under Section 1983, and the Eleventh Circuit has made clear that “when an officer is sued under Section 1983
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in his or her official capacity, the suit is simply another way of pleading an action

against an entity of which an officer is an agent.” Busby v. City of Orlando, 931 F.2d

764, 776 (11th Cir. 1991). Moreover, none of the cases cited by Plaintiffs involve a

sheriff’s management of the conditions of a jail, and Plaintiffs even acknowledge

that it is the Sheriff’s responsibility to “operate the Clayton County Jail system…and

to ensure safe and sanitary conditions of conferment.” (Doc. 37, p. 23.) Therefore,

the official capacity claims against the Sheriff’s staff are redundant and unnecessary.

Purcell v. Toombs Cnty., 400 F.3d 1313, 1325 (11th Cir. 2005).

C. Plaintiffs Fail to Prove They Satisfied the PLRA’s Requirement to Exhaust Administrative Remedies Before Filing Suit

As established in Defendants’ initial brief, Plaintiffs failed to satisfy the

PLRA’s requirement that they exhausted all available administrative remedies

before filing a lawsuit regarding the Jail’s conditions, which warrants dismissal. This

result should not shock Plaintiffs’ counsel, as the ACLU’s own PLRA practice guide

warns “[i]f you file a lawsuit in federal court before taking your complaints through

every step of your prison’s grievance procedure, it will almost certainly be

dismissed.” American Civil Liberties Union, KNOW YOUR RIGHTS: THE PRISON

LITIGATION

REFORM

ACT

(PLRA),

available

at

https://www.aclu.org/sites/default/files/images/asset_upload_file79_25805.pdf

(last visited Aug. 25, 2020).

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1. Challenge to the Availability of the Grievance Procedure Fails In their response, Plaintiffs state that the Grievance Procedure was somehow unavailable to them and that a detainee need not exhaust unavailable remedies. (Doc. 37, pp. 19-20.) While “[a]n administrative procedure that is unknown and unknowable is unavailable,” Presley v. Scott, 679 F. App’x 910, 912 (11th Cir. 2017), the Grievance Procedure at the Jail is neither of these things. Plaintiffs assert that Defendants have not shown that Plaintiffs “were informed of the grievance policy or its rules so that it would be ‘practically’ capable of use.” (Doc. 37, p. 19.) Yet, Defendants have submitted declarations from a lieutenant and an inmate at the Jail to show that inmates are educated about the Grievance Procedure during orientation and that grievances are available via the Kiosk. (Gibson Declaration; Demarco May Declaration.) These facts are not conclusory, as Plaintiffs contend, but instead are conclusive in establishing that inmates are informed and well aware about the Grievance Procedure.2 Additionally, Plaintiffs’ complaint, and the evidence submitted by Defendants, establish that Plaintiffs are aware of the Kiosk grievance process because they utilized it. (Doc. 1, pp. 22, 24, 48–51.) Plaintiffs’ Kiosk entries undercut any contention that the process was unknown or unavailable
2 While the factual statement is brief, it is not a conclusory statement, as a conclusory statement would be simply stating inmates know of the Grievance Procedure. See Rogers v. Evans, 792 F.2d 1052, 1062 n.9 (11th Cir. 1986) (“The affidavit is phrased in conclusory terms without citing facts.”).
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to them. Plaintiffs were informed of the Grievance Procedure, it was capable of use, and it was used thereby showing Plaintiffs understand how to grieve according to the Grievance Procedure. Presley, 679 F. App’x at 912.
Next, Plaintiffs contend that the Grievance Procedure describes a paper-based protocol not used at the Jail. (Doc. 37, pp. 20-21.) While the written Grievance Procedure technically does not refer to the Kiosk, this is immaterial because the process is the same. The Grievance Procedure, moreover, adequately explains submitting grievances and appeals therefrom, and inmates are educated at orientation how to use the Kiosk, which Plaintiffs had no trouble doing here. (Gibson Decl.; May Decl.) The Grievance Procedure is understood and available under the PLRA. Therefore, Plaintiffs’ contention is unpersuasive.
2. No Class Certification In their response, Plaintiffs continually refer to “class members” and “class representatives” in their discussion of the PLRA’s exhaustion requirement and contend that they have satisfied “vicarious exhaustion.” (Doc. 37, p. 21.) Vicarious exhaustion is only available when a class has been certified, but because no class has been certified, the Court is to only look to the grievances filed by the named Plaintiffs. See Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004) (“We hold that a class of prisoner-plaintiffs certified under Rule 23(b)(2) satisfies the PLRA’s administrative exhaustion requirement through ‘vicarious exhaustion,’ i.e., when
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one or more class members has exhausted his administrative remedies with respect to each claim raised by the class.”). This matter has not been certified as a class action, and no class members or class representatives exist. Baxter v. Palmigiano, 425 U.S. 308, 310 n.1 (1976) (“Without such certification and identification of the class, the action is not properly a class action.”). Therefore, Plaintiffs’ contention lacks merit.
3. Challenge to the Exhaustion of the Grievance Procedure Fails Finally, Plaintiffs contend that Defendants have not met their burden to show that the named plaintiffs failed to exhaust the Grievance Procedure. (Doc. 37, pp. 22-26.) Regarding Plaintiff Jones’ appeal with Entry ID 248051, Plaintiffs claim that the appeal response of “Resolved Substantiated” “indicated that the grievance was addressed on the merits on appeal” and because of this the “procedurally defective grievance properly exhausts a prisoner’s claim for purpose of § 1997e(a). (Doc. 37, p. 32.) Plaintiffs conflate the words “grievance” and “appeal” and refer to Jones’ appeal as a “grievance” when it is only an appeal. Because inmates may “only address one area of concern per Grievance Form” the only topic that could have been addressed in Plaintiff Jones’ appeal would have been the topic she first grieved about in her grievance, an issue with texting, and not any new issues raised in her appeal. (Doc. 23-2, p. 4, 8.). Therefore, the response to her appeal only dealt with the one issued on appeal—the texting issue—and this issue is what was
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“Resolved Substantiated,” as the texting issue was first “Resolved Unsubstantiated”. Plaintiff Jones then appealed, and on appeal, the texting issue was “Resolved Substantiated.” The new topics found in the appeal could not have been “Resolved Substantiated,” as they were outside the topic on appeal, and the purpose of an appeal is to appeal the original grievance and its topics. Any new topics found in the appeal would not have been resolved on the merits, and therefore, Plaintiff Jones has not exhausted the grievance procedure in relation to her allegations in the complaint.
As for Plaintiff Singleton’s grievance with Entry ID 243732, Plaintiffs claim that it “was undecided nearly two months after Singleton filed it” is incorrect, as the grievance has been replied to with the language “All issues have been addressed.” (Doc. 37, p. 32; Doc. 23-2, p. 18.) Plaintiffs admit this language is found in the reply, but state that the language “meant that Singleton had obtained all the relief that was available and thus was not required to file an appeal.” (Doc. 37, p. 32.) This statement is incorrect, because if Plaintiff Singleton did not agree that “[a]ll issues have been addressed” then he would have needed to file an appeal, the choice to not appeal means Plaintiff Singleton failed to exhaust the available administrative remedies.
Regarding Plaintiff Mitchell, Plaintiffs contend “Defendants have not shown that Mitchell was informed of how to file a grievance appeal.” However, all inmates are told about the grievance procedure at orientation, and Defendants have produced
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Lieutenant Gibson’s declaration containing this specific fact. (Doc. 23-2, pp. 1–3.) Further, Plaintiff Mitchell has filed grievances—but failed to exhaust the grievance procedure—thereby showing that the grievance procedure was known, available, and in fact used by Plaintiff Mitchell. (Doc. 23-2, pp. 12–14.) Most importantly, Plaintiff Mitchell is no longer incarcerated at the Jail, as Plaintiffs concede, which “moot[s] his claims” and his claims are no longer at issue. (Doc. 37, p. 11 n. 1.) Smith v. Allen, 502 F.3d 1255, 1267 (11th Cir. 2007) (“[t]he general rule in our circuit is that a transfer or release of a prisoner from prison will moot that prisoner’s claims for injunctive and declaratory relief.”).3
Regarding Plaintiff Watkins, after reviewing the Jail’s files for any grievances submitted by Plaintiffs, Lieutenant Gibson attached the grievances found through this procedure to his declaration. (Doc. 23-2, ¶ 4.) Plaintiffs seem to take issue with the wording in Lieutenant Gibson’s declaration where it states “the grievances I have located,” but this issue is immaterial, as the grievance Lieutenant Gibson has located, through his thorough review of the Clayton County Jail files, would be “any grievances submitted by” the Plaintiffs. (Doc. 23-2, ¶ 4; Doc 37, p. 25.) And any of the grievances submitted by the Plaintiffs, including any by Plaintiff Watkins, have
3 See also Zatler v. Wainwright, 802 F.2d 397 (11th Cir. 1986) (“[i]n view of Zatler’s release, we find that his claims for declaratory and injunctive relief are now moot.”); Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985)(“[a]bsent class certification, an inmate’s claim for injunctive and declaratory relief in a section 1983 action fails to present a case or controversy once the inmate has been transferred.”).
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been attached to his declaration, with no more or no less. Therefore, an absence of grievances by Plaintiff Watkins means Plaintiff Watkins did not file any grievances during the time of Plaintiff Watkins’ incarceration.
Even if this Court were to find Plaintiffs have satisfied the exhaustion requirement, Plaintiffs have only grieved about sanitization of phones, masks, cleaning supplies, disinfectant, and COVID-19 tests. (Doc 23-2, p. 7–26.) Meaning, the Court should limit Plaintiffs’ claims only to these specific items of concern brought to the Jail staff’s attention. Sylvester v. Chandler, No. 07 C 50050, 2010 U.S. Dist. LEXIS 88683, at *13 (N.D. Ill. Aug. 27, 2010) (“Because the June grievance failed to identify misconduct or describe those who treated him badly, it did not provide the prison with any opportunity to address plaintiff’s concern that he was being abused by Dixon nurses. Accordingly, the court finds that plaintiff did not exhaust his remedies with respect to the claims”); see generally Winstead v. Williams, No. CV 617-049, 2018 U.S. Dist. LEXIS 3843, at *10 (S.D. Ga. Jan. 9, 2018). D. Failure to State a Claim Under The ADA or RA
Plaintiffs contend in two pages of their response that they have plausibly alleged violations under the ADA and RA and that “the Jail has made no accommodations for members of the Disability subclasses to reduce their risk of exposure” to COVID-19. (Doc. 37, pp. 26-27.) Foremost, Plaintiffs have not
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alleged a disability under the ADA or RA.4 Plaintiffs allege only health conditions— high blood pressure, diabetes, and pulmonary disease—but alleging health conditions is not tantamount to being disabled. (Doc. 1, ¶¶ 4–7.) “A physical impairment, standing alone, however, is not necessarily a disability as contemplated by the ADA. The ADA requires that the impairment substantially limit one or more of the individual’s major life activities.” Gordon v. E.L. Hamm & Assocs., 100 F.3d 907, 911 (11th Cir. 1996) (citations omitted); see 42 U.S.C. § 12102(2). Plaintiffs must allege how their health conditions have “substantially limit[ed] one or more of the major life activities of [Plaintiffs]” to bring a claim under the ADA, and Plaintiffs have failed to do so here. 42 U.S.C. § 12102(2). Simply put, merely having a health condition does not mean one is disabled as defined by the ADA, and the failure to properly allege Plaintiffs have disabilities is fatal to bringing an ADA claim. See Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1265 (11th Cir. 2007) (holding plaintiff who suffered from diabetes, high blood pressure, and other conditions could not establish he was disabled pursuant to ADA); Swain v. Hillsborough Cty. Sch. Bd., 146 F.3d 855, 858 (11th Cir. 1998) (holding plaintiff who suffered from urinary incontinence and high blood pressure was “not an individual with a disability as defined by the ADA.”).
4 “Discrimination claims under the Rehabilitation Act are governed by the same standards used in ADA cases.” Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000).
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Next, as for Plaintiffs contention that they were not provided accommodations, Plaintiffs do not contend that they made a specific demand for reasonable accommodations, which is fatal to their claim. Rylee v. Chapman, 316 F. App’x 901, 906 (11th Cir. 2009) (“In cases alleging a failure to make reasonable accommodations, the defendant’s duty to provide a reasonable accommodation is not triggered until the plaintiff makes a ‘specific demand’ for an accommodation.”). Additionally, Plaintiffs do not allege that Defendants failed to provide Plaintiffs with any reasonable accommodations by reason of any disabilities.5 Therefore, Plaintiffs’ ADA and RA claims should be dismissed for these additional reasons. E. “Unconstitutional Punishment” Claim is Subject to Dismissal
Plaintiffs contend in their response that the “punishment test” in Bell v. Wolfish, 441 U.S. 520, 535 (1979) and not the Eighth Amendment deliberate indifference analysis “applies when analyzing the condition of Plaintiffs’ pretrial confinement.” (Doc. 37, pp. 28-29.) Plaintiffs are wrong and are misconstruing the standards under well-established Eleventh Circuit precedent. In Bell, the Supreme Court held that conditions claims brought by pretrial detainees arise under the
5 Plaintiffs claim that the ADA and RA do not require discrimination by a public entity of an individual with a disability by reason of their disability. (Doc. 37, p. 27.) This is incorrect. The Eleventh Circuit recognizes a claim under the ADA and RA when a plaintiff “was ‘subjected to discrimination’ by a public entity, the [sheriff], by reason of his disability.” Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1084 (11th Cir. 2007) (emphasis added).
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Fourteenth Amendment. The Eleventh Circuit, however, has held that the decisional law applicable to prison inmates applies equally to pretrial detainees. Hamm v. DeKalb Cty., 774 F.2d 1567, 1574 (11th Cir. 1985); see also Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996). As a result, the Eleventh Circuit requires a plaintiff challenging the conditions of confinement to show both that the deprivation suffered was objectively serious and that prison officials were deliberately indifferent to the violation of the plaintiff’s constitutional rights. See Evans v. St. Lucie Cty. Jail, 448 F. App’x 971, 973–75 (11th Cir. 2011). See also Swain v. Junior, 958 F.3d 1081 (11th Cir. 2020) (“a pre-trial detainee’s rights exist under the due process clause of the Fourteenth Amendment’ but ‘are subject to the same scrutiny as if they had been brought as deliberate indifference claims under the Eighth Amendment.”). Therefore, Plaintiffs’ claim in Count I should be dismissed for failure to state a claim. F. Failure to State a Claim for Habeas Relief Because Claims Relate to
Conditions at the Jail and They Failed to Exhaust State Court Remedies 1. Plaintiffs Are Challenging Conditions of Confinement, Not the Fact
or Duration of the Confinement Plaintiffs contend in their response that “Defendants have incorrectly framed Plaintiffs’ [habeas] claims as challenges to the conditions of confinement.” (Doc. 37, p. 30.) Plaintiffs’ complaint, however, poses the situation that COVID-19, and Defendants’ alleged deliberate indifference to the virus, has created conditions of
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confinement at the Jail that are in violation of the Constitution. (See, e.g., Doc. 1, ⁋ 110, 111, 152, 154, 156, 178, 209, 213, 214, 236.) Plaintiffs’ claims challenge without any question the alleged conditions at the Jail in response to COVID-19, and Plaintiffs cite no law to support their request for a release or transfer order due to COVID-19 related conditions. To the contrary, binding precedent holds that an inmate cannot challenge his or her conditions of confinement via a habeas petition, period. Nelson v. Campbell, 541 U.S. 637, 643 (2004) (“[C]onstitutional claims that merely challenge the conditions of a prisoner’s confinement, whether the inmate seeks monetary or injunctive relief, fall outside of that core” of habeas relief.); see also Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, requests for relief turning on circumstances of confinement may be presented in a § 1983 action.”); Vaz v. Skinner, 634 F. App’x 778 (11th Cir. 2015) (“Petitioner’s § 2241 petition is not the appropriate vehicle for raising an inadequate medical care claim, as such a claim challenges the conditions of confinement, not the fact or duration of that confinement.”).
Simply, Plaintiffs are not alleging challenges to “the validity of the sentence itself or the fact of confinement,” which would give them a basis for a habeas corpus petition under Bryant v. Warden, 738 F.3d 1253, 1288 (11th Cir. 2013). This is a
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conditions of confinement suit, and as such, Plaintiffs are not entitled to habeas relief.
2. Plaintiffs’ Habeas Claims Must Be Dismissed Because Plaintiffs Have Not Exhausted Available State Court Remedies
In their response, Plaintiffs cite Santiago-Lugo v. Warden, 785 F.3d 467 (11th Cir. 2015) and contend that exhaustion of state court remedies is not a requirement to bring a habeas claim. (Doc. 37, pp. 31–32.) However, Santiago, is inapposite because that case does not deal with the failure to exhaust state court remedies, but rather, with the failure to exhaust administrative remedies.
Plaintiffs also claim there is an “absence of a statutorily mandated exhaustion requirement;” however, this is also incorrect. (Doc. 37, p. 32.) See 28 U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State.”); see also Hughes v. AG of Fla., 377 F.3d 1258, 1262 n.4 (11th Cir. 2004) (“the exhaustion of state remedies . . . was codified in 28 U.S.C. § 2254(b), but the requirement applies to all habeas corpus actions.”).
Plaintiffs next contend that “[t]he circumstances of this case weigh heavily against an exhaustion requirement” and that they should have “prompt access to a federal judicial forum.” (Doc. 37, pp. 32-33.) The Supreme Court, however, has “reiterated that comity was the basis for the exhaustion doctrine: ‘it is a principle
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controlling all habeas corpus petitions to the federal courts, that those courts will interfere with the administration of justice in the state courts only in rare cases where exceptional circumstances of peculiar urgency are shown to exist.’” Rose v. Lundy, 455 U.S. 509, 515-16 (1982).
Comity is at its greatest here, as “the Supreme Court has cautioned, ‘it is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.’” Woodford v. Ngo, 548 U.S. 81, 94 (2006) (citing Preiser v. Rodriguez, 411 U.S. 475, 491–492 (1973)). As the interest of comity is great, and there is not an exceptional circumstance of peculiar urgency here, as Plaintiffs’ own allegations show that there has not been an outbreak of COVID-19 at the Jail and Plaintiffs have not alleged they are safer from COVID-19 outside of the Jail, the exhaustion requirement should be enforced and a state court should have the ability to hear a habeas claim. See Brown v. Plata, 563 U.S. 493, 511 (2011) (“Courts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals.”); Powell v. Barrett, 541 F.3d 1298, 1311 (11th Cir. 2008) (“jailers and corrections officials should be accorded wide-ranging deference in the adoption and execution of policies and practices.”).
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Further, the Supreme Court’s opinion in Jacobson v. Massachusetts cautions district courts from usurping state authority to craft measures responsive to a public health emergency. 197 U.S. 11, 39 (1905). Instead, the courts should only interfere when states act in an “arbitrary and oppressive” manner. Jacobson, 197 U.S. at 38; see generally Robinson v. AG, 957 F.3d 1171, 1179 (11th Cir. 2020); Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 925 (6th Cir. 2020); In re Abbott, 956 F.3d 696, 716 (5th Cir. 2020).
Finally, in Money v. Pritzker, 2020 U.S. Dist. LEXIS 63599 (N.D. Ill. Apr. 10, 2020), for example, the court found that there were “serious separation of powers concerns” inherent in plaintiffs’ actions “because running and overseeing prisons is traditionally the province of the executive and legislative branches.” Id. at *54. The court explained that the judiciary is “ill-equipped” to manage thousands of inmates, particularly in the context of “an ongoing, fast moving public health emergency.” Id. at *55. Finally, turning to the merits of the habeas petition, the court found that the plaintiffs failed to exhaust their remedies as they did not give Illinois state courts a meaningful opportunity to consider their claims before turning to the federal courts for relief. Id. at *68–75. Ultimately, the court denied their habeas petition because “Plaintiffs have not made a satisfactory showing that the state court system was not every bit as available as the federal courts, if not more so.” Id. at *74. Therefore, as in Money, Plaintiffs’ request for habeas relief should be denied.
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G. Plaintiffs Failed to Follow the PLRA’s Required Procedure to Obtain an Inmate Release Order Plaintiffs contend in their response that the requirements and limitations on
prisoner release orders under 18 U.S.C. § 3636 do not apply to them, including the requirement to empanel a three-judge panel. (Doc. 37, pp. 34-35.) Yet, Plaintiffs cite no precedent to support their contention. Looking to the plain language of 18 U.S.C. § 3626, a prisoner release order “includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” 18 U.S.C. § 3626(g)(4) (emphasis added). In the face of this plain language, Plaintiffs incorrectly state “an order releasing or transferring medically vulnerable detainees to protect them form COVID-19 would not constitute a ‘prisoner release order” . . . .” (Doc. 37, p. 35.) Further, Plaintiffs claim in their complaint “[r]elease is needed . . . to reduce the jail’s population”— language almost word-for-word the definition of a “prison release order.” (Doc. 1, p. 67)
Plaintiffs are seeking release as a remedy for the allegedly unconstitutional conditions at the Jail—either for themselves or others—but the PLRA prevents this Court from granting that relief. Under the PLRA, “[t]he authority to order release of prisoners as a remedy to cure a systemic violation of the Eighth Amendment is a power reserved to a three-judge district court, not a single-judge district court.”
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Brown, 563 U.S. at 500 (2011) (citing 18 U.S.C. § 3626(a)); see 18 U.S.C. § 3626(a)(3)(B) (“In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court[.]”). Additionally, such an order may not be entered unless “(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and (ii) the defendant has had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3)(A). And even a three-judge court may not order prisoners released to remedy unconstitutional prison conditions until “the court finds by clear and convincing evidence” that “(i) crowding is the primary cause of the violation” and “(ii) no other relief will remedy [it.]” 18 U.S.C. § 3626(a)(3)(E)(i)(ii).
Three recent federal COVID-19 inmate cases confirm Defendants’ position on several points and highlight the fatal flaws in Plaintiffs’ compliant.
The Illinois district court’s decision in Money is the most significant of the cases, as it analyzed an action practically identical to this one. 2020 U.S. Dist. LEXIS 63599 (N.D. Ill. Apr. 10, 2020). In Money, ten individuals in various Illinois Department of Corrections (“IDOC”) facilities brought two class action lawsuits “seeking release of prisoners from IDOC facilities in light of the COVID-19 pandemic.” Id. at *7. One suit was brought under § 1983; the other was a petition for writs of habeas corpus under 28 U.S.C. § 2254. As the court summarized: “The
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foundation of each suit is essentially the same: Plaintiffs argue that the prison setting makes them (and other purported class members) especially vulnerable to COVID19, that the state government’s responses to the danger are insufficient or not fast enough or both, and that the only way to solve the problem is moving prisoners out of prisons.” Id. at *8. Plaintiffs claimed that “reducing the prison population is the only meaningful way to prevent the harms posed by COVID-19 in the prison setting.” Id. at *16.
The court found that the plaintiffs’ § 1983 claims were subject to the PLRA’s limitations. Id. at *32–47. The court analyzed whether the plaintiffs were seeking a “prisoner release order” that would need to be decided by a three-judge panel under the PLRA. Id. During the lawsuit, the plaintiffs walked-back their original request for release and claimed they were now only seeking “a process through which subclass members eligible for medical furlough will be identified and evaluated based on a balancing of public safety and public health needs, and transferred accordingly.” Id. at *28–29 (quotations omitted). The court found that even this watered-down request was effectively a request for a prisoner release order as it was intended to further the lawsuits’ main purpose—which was to reduce or limit the IDOC’s prison population. Id. at *42, 43. The court held that, under the PLRA’s specific procedures regarding prisoner release orders and due to the relief being
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requested, it could not grant the plaintiffs’ § 1983-based request for prisoner release. Id. at *75.
Further, the court found that there were “serious separation of powers concerns” inherent in plaintiffs’ actions “because running and overseeing prisons is traditionally the province of the executive and legislative branches.” Id. at *54. The court explained that the judiciary is “ill-equipped” to manage thousands of inmates, particularly in the context of “an ongoing, fast moving public health emergency.” Id. at *55.
Finally, turning to the merits of the habeas petition, the court found that the plaintiffs failed to exhaust their remedies as they did not give Illinois state courts a meaningful opportunity to consider their claims before turning to the federal courts for relief. Id. at *68–75. Ultimately, the court denied their habeas petition because “Plaintiffs have not made a satisfactory showing that the state court system was not every bit as available as the federal courts, if not more so.” Id. at *74.
In the second case, Sacal-Micha v. Longoria, 2020 U.S. Dist. LEXIS 62471 (S.D. Tex. Apr. 9, 2020), the District Court for the Southern District of Texas found that a writ of habeas corpus was not a proper vehicle for challenging an inmate’s conditions of confinement due to COVID-19. In Sacal-Micha, the petitioner who filed a habeas petition seeking immediate release was “elderly and has serious underlying medical conditions.” Id. at *1. The petitioner sought release due to the
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“possibility of a COVID-19 outbreak within the detention center . . . and the Respondents’ alleged inability to protect him from contracting the virus or providing him with adequate medical attention.” Id. Specifically, the petitioner claimed that the respondents had not implemented sufficient social distancing measures, the universal use of mask and gloves, and various other measures to protect against the spread of COVID-19. Id. at *5.
The court noted that the “‘sole function’ of a habeas petition is to ‘grant relief from unlawful imprisonment or custody’” and that “[d]istrict courts have . . . den[ied] habeas relief based solely on alleged inadequate conditions of detention.” Id. at * 7. The court found the petitioner’s lawsuit was “[a]t its core” challenging his conditions of confinement and that habeas relief is unavailable in such a suit. Id. at *8. Thus, the court held that the petition should be dismissed under Fed. R. Civ. P. 12(b)(6). Id. at *24.
In a third case, Coleman v. Newsom, 2020 U.S. Dist. LEXIS 62575 (E.D. Cal. Apr. 4, 2020), a three-judge federal court in California clarified how the PLRA’s limits applied to COVID-19-based claims for a prisoner release order. The presiding three-judge court was established in 2007 under the PLRA to consider whether a prisoner release was warranted due to structural failures in California’s prison system. Id. at *5. Recently, two classes of inmates incarcerated in California state prisons filed a motion asking the court to order the release of a significant number
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of prisoners “so that the prison population can be reduced to a level sufficient to
allow physical distancing to prevent the spread of COVID-19.” Id.
The three-judge court rejected the plaintiffs’ motion. Id. at *6. The court noted
that the “PLRA places significant restrictions on a federal court’s authority to order
the release of prisoners as a remedy for a constitutional violation.” Id. at *13. The
court found that the plaintiffs likely could not satisfy the PLRA’s requirements “at
this point because there have not yet been any orders requiring Defendants to take
measures short of release to address the threat of the virus; nor have Defendants had
a reasonable time in which to comply.” Id. at *14.
These three cases confirm Defendants’ position and highlight the reasons why
the relief sought by Plaintiffs should be denied.
II. CONCLUSION
For the reasons stated herein, and in Defendants’ initial brief, Plaintiffs’
complaint should be dismissed.
FREEMAN MATHIS & GARY, LLP
/s/ A. Ali Sabzevari Jack R. Hancock Georgia Bar No. 322450 jhancock@fmglaw.com A. Ali Sabzevari Georgia Bar No. 941527 asabzevari@fmglaw.com Jacob W. Loken Georgia Bar No. 200193 jloken@fmglaw.com - 24 -

Case 1:20-cv-02791-JPB-CCB Document 40 Filed 08/31/20 Page 25 of 28

661 Forest Parkway, Suite E Forest Park, GA 30297 (404) 366-1000 (telephone) (404) 361-3223 (facsimile)

Attorneys for Defendants

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CERTIFICATE OF COMPLIANCE
I hereby certify, pursuant to Local Rule 7.1(D), that the foregoing
memorandum of law has been prepared in accordance with Local Rule 5.1(C)
(Times New Roman font, 14 point).
This 31st day of August, 2020.
FREEMAN MATHIS & GARY, LLP
/s/ A. Ali Sabzevari A. Ali Sabzevari Georgia Bar No. 941527 asabzevari@fmglaw.com
Attorney for Defendants
661 Forest Parkway, Suite E Forest Park, GA 30297 (404) 366-1000 (telephone) (404) 361-3223 (facsimile)

Case 1:20-cv-02791-JPB-CCB Document 40 Filed 08/31/20 Page 27 of 28

CERTIFICATE OF SERVICE

I hereby certify that I have this day electronically submitted the foregoing

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS to the

Clerk of Court using the CM/ECF system which will automatically send electronic

mail notification of such filing to counsel of record who are CM/ECF system

participants:

Ryan Primerano Sarah Geraghty Jeremy Cutting Southern Center for Human Rights 60 Walton Street Atlanta, Georgia 30303 rprimerano@schr.org sgeraghty@schr.org ccutting@schr.org
Stephen L. Pevar American Civil Liberties
Union Foundation 765 Asylum Ave Hartford, Connecticut 06105 spevar@aclu.org

Kosha S. Tucker American Civil Liberties Union
Foundation of Georgia P.O. Box 77208
Atlanta, Georgia 30357 ktucker@acluga.org
Brandon Buskey Robert W. Hunter American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 bbuskey@aclu.org
David C. Fathi American Civil Liberties
Union Foundation 915 Fifteenth Street, Seventh Floor
Washington, DC 20005 dfathi@aclu.org

This 31st day of August, 2020 /s/ A. Ali Sabzevari

Case 1:20-cv-02791-JPB-CCB Document 40 Filed 08/31/20 Page 28 of 28
A. Ali Sabzevari Georgia Bar No. 941527 asabzevari@fmglaw.com
Attorney for Defendants
FREEMAN MATHIS & GARY, LLP 661 Forest Parkway, Suite E Forest Park, GA 30297 (404) 366-1000 (telephone) (404) 361-3223 (facsimile)

 
 Case 1:20-cv-02791-JPB-CCB Document 52 Filed 09/16/20 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RHONDA JONES, et al., Plaintiffs,
v.
VICTOR HILL, et al., Defendants.

:

PRISONER CIVIL RIGHTS

:

42 U.S.C. § 1983

:

:

:

:

CIVIL ACTION NO.

:

1:20-CV-02791-JPB-CCB

NON-FINAL REPORT AND RECOMMENDATION

Plaintiffs Rhonda Jones, Randolph Mitchell,1 Michael Singleton, and Barry

Watkins, confined at the Clayton County Jail (“CCJ”) in Jonesboro, Georgia, filed

a civil rights complaint pursuant to 42 U.S.C. § 1983 and petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241 alleging violations of their rights as a result

of Defendants’ response—or lack thereof—to the COVID-19 pandemic currently

affecting the country and the CCJ. (Doc. 1.)2 As more fully discussed in a separate

order, Plaintiffs have not fully paid the filing fee, but the Court will exercise its

discretion to move forward with this case.

Defendants move to dismiss the complaint for numerous reasons,

including lack of jurisdiction, failure to exhaust, and failure to state a claim. (Doc.

1 Mitchell has since been released from the CCJ. (Doc. 23-1 at 14.)
2 Plaintiffs seek a preliminary injunction and class-action certification; these matters will be considered separately.

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23.) For the reasons stated below, it is RECOMMENDED that Defendants’ motion

to dismiss (Doc. 23) be GRANTED IN PART and DENIED IN PART, Plaintiff

Randolph Mitchell’s individual claims be DISMISSED, the remaining Plaintiffs’

claims of deliberate indifference be ALLOWED TO PROCEED, and the

remaining Plaintiffs’ remaining claims be DISMISSED.

I.

FACTUAL BACKGROUND

Plaintiffs are various inmates confined at the CCJ. Jones, a 58-year-old

female with chronic obstructive pulmonary disease, is in pretrial detention at the

CCJ. (Doc. 1 at 12.) Watkins, a 60-year-old male with diabetes, is also in pretrial

detention at the CCJ. (Id. at 13.) Mitchell, a 72-year-old male with high blood

pressure and a heart condition, was confined to the CCJ pursuant to a 12-month

sentence for simple battery. (Id. at 12.) And Singleton, a 59-year-old male with

high blood pressure, is confined to the CCJ pursuant to a one-year sentence for

violating probation. (Id. at 13.) Plaintiffs seek class certification for two classes and

four subclasses: a Principal Pretrial Class and Principal Post-Adjudication Class;

and a Medically Vulnerable Pretrial Subclass, Medically Vulnerable Post-

Adjudication Subclass, Disability Pretrial Subclass, and Disability Post-

Adjudication Subclass. (Id. at 75-99.) They propose that Jones and Watkins will

represent the Principal Pretrial Class, Medically Vulnerable Pretrial Subclass, and

Disability Pretrial Subclass; and Mitchell and Singleton will represent the

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Principal Post-Adjudication Class, Medically Vulnerable Post-Adjudication Subclass, and Disability Post-Adjudication Subclass. (Id. at 76, 84, 92; id. at 79, 88, 96.)
According to Plaintiffs’ complaint, conditions at the CCJ are poor, and, since the development of the COVID-19 pandemic, Defendants have failed to take appropriate actions to ensure Plaintiffs’ safety, such as implementing social distancing measures and providing adequate cleaning supplies and personal protective equipment. (See generally id. at 17-75.) Plaintiffs seek injunctive relief, including releasing or transferring inmates and improving measures to prevent the spread of COVID-19 at the CCJ. (Id. at 109.) II. DISCUSSION
Pursuant to 28 U.S.C. § 1915A, a federal court is required to conduct an initial screening of a prisoner complaint to determine whether the action is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief.
“To avoid dismissal for failure to state a claim, a complaint must include factual content that allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.” Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017). A well-pleaded complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
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not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (brackets and internal quotation marks omitted). Ultimately, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A complaint describing misconduct that is merely possible, as opposed to plausible, “has alleged—but it has not shown—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (brackets and internal quotation marks omitted). Similarly, “an unadorned, thedefendant-unlawfully-harmed-me accusation” is insufficient to “nudge[]” a claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 678.
A. Standing The parties dispute whether Plaintiffs have standing to seek injunctive relief, and this Court is obligated to consider whether it has jurisdiction over this case. Lewis v. Governor of Alabama, 944 F.3d 1287, 1296 (11th Cir. 2019) (en banc) (“Because standing to sue implicates jurisdiction, a court must satisfy itself that the plaintiff has standing before proceeding to consider the merits of her claim, no matter how weighty or interesting.”). Federal courts have the power to hear only live cases or controversies. U.S. Constitution art. III. As a result of this requirement, a plaintiff must have standing
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to pursue an action in federal court. Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir. 2020). To show standing, a plaintiff must establish three elements: “the plaintiff must have suffered an injury in fact, the defendant must have caused that injury, and a favorable decision must be likely to redress it.” Id.
1. Injury in Fact Of the three elements of standing, “[t]he foremost standing requirement is injury in fact.” Id. (internal quotation marks omitted). This consists of “an invasion of a legally protected interest that is both concrete and particularized and actual or imminent, not conjectural or hypothetical.” Id. (internal quotation marks omitted). “When a plaintiff seeks prospective relief to prevent a future injury, it must establish that the threatened injury is certainly impending.” Indep. Party of Fla. v. Sec’y, State of Fla., 967 F.3d 1277, 1280 (11th Cir. 2020) (internal quotation marks omitted). Defendants argue that Plaintiffs have failed to allege an injury in fact sufficient to establish standing because the risk of contracting COVID-19 is too speculative. (Doc. 23-1 at 17-19.) COVID-19 is a highly contagious virus that spreads quickly through closed environments like jails, and “[c]ourts have repeatedly held that the highly contagious nature of this dangerous and potentially fatal virus is sufficient to establish an alleged injury that is concrete and legally particularized.” Hango v. Adducci, No. 1:19-CV-606, 2020 WL 3271061,
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at *5 (N.D. Ohio June 17, 2020) (collecting cases); Martinez Franco v. Jennings, ___ F. Supp. 3d ___, ___, No. 20-CV-02474-CRB, 2020 WL 1976423, at *2 (N.D. Cal. Apr. 24, 2020) (noting that the argument that a plaintiff lacks standing because the risk of contracting COVID-19 is too speculative “has been rejected by many, and perhaps all, courts that have considered it”); see also Matos v. Lopez Vega, ___ F. Supp. 3d ___, ___, No. 20-CIV-60784-RAR, 2020 WL 2298775, at *7 (S.D. Fla. May 6, 2020) (“Although they may never contract COVID-19, the alleged injury is concrete enough to survive challenges to standing given the rapid spread and highly contagious nature of the virus. Moreover, Petitioners need not wait to contract COVID-19 to demonstrate an injury in fact.”); Helling v. McKinney, 509 U.S. 25, 33 (1993) (explaining that “a remedy for unsafe conditions need not await a tragic event”). Thus, Plaintiffs have sufficiently alleged an injury in fact.
2. Traceability and Redressability “[A] plaintiff’s injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Jacobson v. Fla. Sec’y of State, ___ F.3d ___, ___, No. 19-14552, 2020 WL 5289377, at *11 (11th Cir. Sept. 3, 2020) (internal quotation marks omitted). In evaluating redressability, a court must consider “whether a decision in a plaintiff’s favor would significantly increase the likelihood that she would obtain relief that directly redresses the injury that she claims to have suffered.”
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Lewis, 944 F.3d at 1301 (brackets, ellipsis, and internal quotation marks omitted). With respect to any relief obtained, “it must be the effect of the court’s judgment on the defendant—not an absent third party—that redresses the plaintiff’s injury, whether directly or indirectly.” Id. (emphasis and internal quotation marks omitted).
Defendants argue that Plaintiffs lack standing, at least with respect to their demand for a change in the CCJ’s medical protocols and treatment, because their injury is not traceable to or redressable by any named Defendant. (Doc. 23-1 at 1921.) In particular, they contend that CorrectHealth, LLC, is the medical provider for the CCJ and thus bears responsibility for the medical care provided at the CCJ. (Id. at 19.) And because CorrectHealth is a third party, they argue, it is not bound by any injunction that this Court might issue. (Id. at 20.) As a result, because Plaintiffs have failed to name CorrectHealth, a necessary party, as a defendant, they lack any redressable remedy from Defendants and consequently lack standing. (Id. at 20-21.)
Plaintiffs, however, have sufficiently shown that their alleged injuries are traceable to and redressable by Defendants. Plaintiffs allege that it is due to Defendants’ failure to enact policies that they have been injured, for example:
Although jailers have quarantined certain pods where detainees have exhibited COVID-19 symptoms (keeping both people who tested positive and people who tested negative in the same housing area and, in some cases, in the same cell), there is no
7

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proactive effort to check detainees’ temperatures in units where COVID-19 cases are suspected by jailers.
. . . . After a detainee exhibits symptoms of the virus, Defendants have no procedure for determining which detainees have been in close contact with the sick detainee and then testing them. (Doc. 1 at 69, 70.) Whether CorrectHealth, in any failure to take appropriate steps on its own initiative to prevent the spread of COVID-19, caused injury to Plaintiffs is a separate question from whether Defendants injured Plaintiffs. See Jacobson, 2020 WL 5289377, at *11. Furthermore, although Defendants are correct that CorrectHealth is a third party, CorrectHealth, as the medical provider for the CCJ contractually acting under the authority of Defendant Hill, would be bound by this Court’s order because Defendants can legally direct CorrectHealth to implement any steps ordered by the Court. See Lewis, 944 F.3d at 1301; (Doc. 1 at 14 (alleging that Defendant Hill is required to operate the CCJ, to maintain custody of those in the CCJ, and to ensure safe and sanitary conditions of confinement)). In essence, Defendants conflate standing with the merits of a claim against CorrectHealth. Plaintiffs, however, sued Defendants, not CorrectHealth. Because Defendants can redress Plaintiffs’ alleged injuries by taking actions such as releasing inmates or providing supplies or personal protective equipment, Plaintiffs have sufficiently alleged that their injuries are traceable to and redressable by Defendants.
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B. Mootness “Mootness arises when an issue presented in a case is no longer live or the parties lack a legally cognizable interest in the outcome.” Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1267 (11th Cir. 2020) (internal quotation marks omitted). A case must be dismissed as moot “if events that occur subsequent to the filing of a lawsuit deprive the court of the ability to give the plaintiff meaningful relief,” since the case no longer presents a live case or controversy as required by Article III of the Constitution. Id. (brackets, ellipsis, and internal quotation marks omitted). Mootness is jurisdictional. Id. “The general rule . . . is that a transfer or a release of a prisoner from prison will moot that prisoner’s claims for injunctive and declaratory relief.” Smith v. Allen, 502 F.3d 1255, 1267 (11th Cir. 2007), abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011); see also Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985) (“Absent class certification, an inmate’s claim for injunctive and declaratory relief in a section 1983 action fails to present a case or controversy once the inmate has been transferred.”). As the parties note, Plaintiff Mitchell has been released from the CCJ. (Doc. 37 at 19 n.8; Doc. 40 at 10.) Smith thus applies to moot Mitchell’s claims. However, because Plaintiff Singleton also proposes to represent
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the same classes as Mitchell, and Singleton’s claims remain live, the claims of the
proposed classes remain live.3
C. Exhaustion
Under the Prison Litigation Reform Act of 1996 (PLRA), “[n]o action shall
be brought with respect to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). The PLRA requires proper exhaustion, including
compliance with deadlines and other procedural rules, before a prisoner can file
3 Even if Mitchell were the only named plaintiff for the proposed classes, the classes’ claims would not be moot because subsequent class certification will relate back to the date of the filing of the complaint. See Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975); see also County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (“That the class was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction.”). Application of the relationback doctrine does not “turn[] on whether the named plaintiffs’ individual claims become moot before or after the plaintiffs move to certify a class.” Stein v. Buccaneers Ltd. P’ship, 772 F.3d 698, 707 (11th Cir. 2014). Instead, a named plaintiff simply must act diligently in pursuing class certification after filing a complaint. Id. Here, Plaintiffs did not fail to act diligently, filing their motion to certify class one day after they filed their complaint. (See Doc. 1; Doc. 7.) Thus, even though Mitchell’s individual claims are moot, Mitchell may still proceed as a proposed class representative. See, e.g., U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980) (“The proposed representative retains a ‘personal stake’ in obtaining class certification sufficient to assure that Art. III values are not undermined.”); McLaughlin, 500 U.S. at 51 (“[T]he termination of a class representative’s claim does not moot the claims of the unnamed members of the class.” (internal quotation marks omitted)).
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suit in federal court. Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006); see also Bryant v. Rich, 530 F.3d 1368, 1378–79 (11th Cir. 2008) (affirming dismissal of prisoner’s claims for failure to exhaust where prisoner did not timely appeal grievance or seek waiver of appeal deadline). The purpose of this requirement is “to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Woodford, 548 U.S. at 93 (brackets and internal quotation marks omitted). As such, a prisoner must “provide as much relevant information as he reasonably can in the administrative grievance process.” Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000).
The PLRA’s exhaustion requirement is mandatory, and courts do not have the discretion to waive it. Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). “[T]he modifier ‘available’ in the PLRA means that inmates must exhaust administrative remedies so long as there is the possibility of at least some kind of relief.” Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005) (internal quotation marks omitted). Although the exhaustion requirement is not jurisdictional, it is a “matter in abatement” and thus “should be raised in a motion to dismiss.” Bryant, 530 F.3d at 1374-75 (internal quotation marks omitted).
A court should apply a two-step process in deciding lack of exhaustion: first, a court should “look[] to the factual allegations in the defendant’s motion to dismiss and those in the plaintiff’s response, and if they conflict, take[] the
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plaintiff’s version of the facts as true.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). “If the defendants can establish failure to exhaust based on the plaintiff’s allegations, dismissal of the complaint is appropriate.” Whatley v. Smith, 898 F.3d 1072, 1082 (11th Cir. 2018). Otherwise, the court should proceed to make “specific findings in order to resolve the disputed factual issues related to exhaustion.” Turner, 541 F.3d at 1082. After making those findings, the court then should decide “whether under those findings the prisoner has exhausted his available administrative remedies.” Id. at 1083.
A court may properly “consider facts outside of the pleadings” and “resolve factual disputes so long as the factual disputes do not decide the merits and the parties have sufficient opportunity to develop a record.” Bryant, 530 F.3d at 1376 (footnote omitted). “Failure to exhaust administrative remedies is an affirmative defense. The burden therefore is on the defendant to show that the plaintiff has not exhausted properly his administrative remedies.” Whatley, 898 F.3d at 1082.
According to Defendants, Plaintiffs have failed to exhaust their administrative remedies. In particular, Defendants point to a declaration from Terrance Gibson, Lieutenant over Support Operations at the Clayton County Sheriff’s Office, who states, “Inmates are informed about the Grievance Procedure during inmate orientation.” (Doc. 23-2 at 3.) Defendants also include a copy of the
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Clayton County Sheriff’s Office Standard Operating Procedures (“Paper-Based Grievance Procedure”) detailing the grievance process. (Id. at 4-6.) According to the Paper-Based Grievance Procedure, “Inmates shall be provided a Grievance Form upon request. No inmate shall be denied a Grievance Form.” (Id. at 4.). The Paper-Based Grievance Procedure also states that inmates shall place the completed grievance form in a grievance box mounted in the inmate’s housing unit, and an official will collect the forms. (Id.) The Paper-Based Grievance Procedure provides that a response will be given within ten calendar days, with a final decision within 30 days of the inmate’s grievance. (Id. at 5.) An inmate must appeal within two days, and a CCJ official must respond to the appeal within ten days. (Id.)
With respect to Plaintiffs, Defendants argue that each Plaintiff was aware of the grievance procedure at the CCJ and failed to exhaust his or her administrative remedies. For example, Defendants contend that, according to the CCJ’s records, Plaintiff Jones never submitted a grievance regarding COVID-19 before filing suit. (Doc. 23-1 at 12.) Instead, Jones complained about the CCJ’s inadequate response to COVID-19 in an appeal to a previous grievance regarding the refund of money. (Id. at 12-13; Doc. 23-2 at 8.) Because Jones never submitted a standalone grievance regarding COVID-19 or sought to appeal the response in which she complained about COVID-19, Defendants argue, Jones failed to
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exhaust her administrative remedies. (Doc. 23-1 at 13.) With respect to Plaintiff Mitchell, Defendants note that Mitchell’s request for a COVID-19 test and mask was marked as resolved with a note of “scheduled for sick call. Refer to security for mask.” (Doc. 23-1 at 14; Doc. 23-2 at 13.) Because Mitchell never appealed this grievance, Defendants argue that he failed to exhaust his administrative remedies. (Doc. 23-1 at 14.) As for Plaintiff Singleton, Defendants note that Singleton submitted a grievance on May 15, 2020, for masks and cleaning supplies, and an official subsequently explained, “All issues have been addressed.” (Doc. 23-1 at 14-15; Doc. 23-2 at 18.)4 Singleton never appealed this grievance, and Defendants contend that he thus failed to exhaust his administrative remedies. (Doc. 23-1 at 15.) Finally, with regard to Plaintiff Watkins, Defendants explain that CCJ records do not show Watkins as having ever submitted any grievance related to COVID19. (Id. at 12.) As a result, they argue, Watkins failed to exhaust his administrative remedies. (Id.)
In contrast, Plaintiffs paint a very different picture. According to Plaintiffs’ complaint:
A purported grievance procedure is available on the kiosk only, not through paper forms. Grievances are rarely answered, and detainees cannot have more than two grievances pending at a time. People who
4 Confusingly, the status of this grievance, as of July 9, 2020, is noted as “In Progress.” (See Doc. 23-2 at 18.) Notably, this grievance was apparently resolved after Plaintiffs’ complaint was filed on July 1, 2020.
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have two grievances pending cannot file grievances about new problems. Many detainees have had two grievances pending for months without a response. There is no way to withdraw a pending grievance via the kiosk, and detainees are given no guidance about how to appeal a grievance decision. No information about the grievance procedure is given to detainees when they enter the jail; detainees do not receive inmate handbooks explaining the grievance procedure and other jail rules. (Doc. 1 at 24-25.) More specifically, each of the named Plaintiffs have submitted
declarations regarding their inability to pursue their administrative remedies. For
example, Jones stated that she tried to submit a grievance regarding the Jail’s
failure to adequately protect her from COVID-19, but was unable to do so because
she was at her grievance limit. (Doc. 6-1 at 7-8.) Furthermore, she stated that,
although she knew she could submit a grievance at the kiosk, “[t]he grievance
procedure was not explained to me at orientation. No one gave me an inmate
handbook or other document explaining the grievance procedure.” (Id. at 7.) She
also stated that a prison official told her that she could not submit a paper
grievance because “[t]he jail does not accept paper grievances from inmates.
Grievances must be submitted in the kiosk, the officer told me.” (Id. at 8.)
Other Plaintiffs report similar difficulties in pursuing their administrative
remedies. Mitchell stated:
No one on the jail staff has ever given me any information that I can recall about how to file a grievance. I never received a copy of the jail’s inmate handbook. I do not know for sure the correct way to use the grievance system. In the past, when I need to file a grievance, I asked another detainee for help with the kiosk machine in my dorm.
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I don’t think I have ever received a response to any grievance that was put into the kiosk on my behalf.
I recently asked another detainee for help in submitting a grievance about how the jail is not doing what it should to stop the outbreak of coronavirus. The kiosk screen showed that I had “used up” all my grievances and could not file any more.
(Id. at 15.)5
Singleton stated:
I filed a grievance on or around May 15 about the jail’s lack of disinfectant and cleaning supplies, as well as their failure to provide detainees with masks, and I referenced the virus. I also filed a grievance on or around May 8 about a different subject. I have not received a response to either grievance. At the end of May, I submitted an appeal on the kiosk, asking why the two grievances from May 8 and May 15 were not answered. I did not get a response to my appeal, but I saw on the kiosk that this appeal had been closed out on June 4. I don’t know what that means. Sometimes, officers block detainees from using the kiosk, which means they cannot submit medical requests.
(Id. at 20-21.)
Watkins stated:
I submitted a grievance around May asking the jail for information about Covid-19 and how I can protect myself. I haven’t received a response [as of June 21, 2020]. That does not surprise me. When I have filed other grievances in the past, they were left pending for months without a response. I do not know of any way to withdraw one of my grievances so I can file another.
5 Although Mitchell’s individual claims are moot, his experiences with the CCJ’s grievance procedure are relevant in showing whether the grievance procedure is generally available to Plaintiffs.
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(Id. at 31-32.) In their reply brief, Defendants maintain that the grievance procedure was
available to Plaintiffs and that each Plaintiff failed to exhaust his or her administrative remedies. (Doc. 40 at 6-11.) In particular, with respect to the availability of the grievance process, Defendants point to a second declaration from Lieutenant Gibson, as well as a declaration from Demarco May, an inmate at CCJ, supporting their argument that the grievance procedure was available to Plaintiffs. (Id. at 6; Doc. 41-1 at 7-8; Doc. 41-2 at 3-5.)
However, Defendants present this new evidence in their reply brief, not in their original motion to dismiss. “When faced with a reply brief that offers new evidence, . . . the district court has two permissible courses of action. It can either (1) permit the nonmoving party to file a surreply or (2) refrain from relying on any new material contained in the reply brief.” Atl. Specialty Ins. Co. v. Digit Dirt Worx, Inc., 793 F. App’x 896, 901-02 (11th Cir. 2019). Although the Court has the discretion to permit Plaintiffs to file a surreply addressing Defendants’ new evidence, it is more appropriate here to exclude Defendants’ new evidence for several reasons. First, Defendants attach these declarations only to their response in opposition to Plaintiffs’ motion for a preliminary injunction, not to their reply brief in support of their motion to dismiss. A review of these declarations show that they are tailored to the issues raised by Plaintiffs’ motion for a preliminary
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injunction, not to the specific question of whether, before and at the time the complaint was filed, the grievance process available to Plaintiffs. Relatedly, the observations of an inmate at the CCJ who appears to have no connection to Plaintiffs regarding his own personal experiences about the grievance procedure has little, if any, relevance to whether the grievance procedure was available to Plaintiffs. Furthermore, Lieutenant Gibson’s second declaration contradicts the evidence presented by Defendants with their motion to dismiss: Defendants attached to their motion to dismiss a copy of a grievance procedure based on paper forms, but Lieutenant Gibson’s second declaration implies that the CCJ’s grievance procedure uses electronic forms. (See Doc. 23-2 at 4-6; Doc. 41-1 at 7-8.) Finally, Lieutenant Gibson’s first declaration—which was included with Defendants’ motion to dismiss—is striking in the lack of detail compared to his second declaration, yet Defendants provide no explanation why Lieutenant Gibson could not have provided his statements earlier. (Compare Doc. 23-2 at 3, with Doc. 41-1 at 7-8.) As a result, the Court will not consider Defendants’ newly proffered evidence.
Based on the evidence presented in Defendants’ motion to dismiss and Plaintiffs’ response in opposition and declarations accompanying the complaint, Defendants have failed to show that Plaintiffs’ claims should be dismissed for failure to exhaust. As noted previously, Defendants presented evidence of a
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paper-based grievance procedure. (Doc. 23-2 at 4-6.) Yet Plaintiffs uniformly state that the CCJ uses electronic grievance forms that are filed through kiosks located in various parts of the CCJ, and Defendants’ own exhibits of copies of Plaintiffs’ grievances show that the CCJ uses electronic grievances. See Gardner v. County of Baldwin, No. 12-0281-CG-C, 2014 WL 171839, at *17 (S.D. Ala. Jan. 15, 2014) (holding that defendants failed to show that plaintiff failed to exhaust where “[t]he grievance procedure that was in effect at the time of the complained of incidents [was] not before the Court”); (Doc. 1 at 24-25; Doc. 6-1; Doc. 23-2 at 728.) Defendants assert that “[w]hile the written Grievance Procedure technically does not refer to the Kiosk, this is immaterial because the process is the same.” (Doc. 40 at 7.) Defendants, however, provide no evidence in support of this assertion. Indeed, while the Paper-Based Grievance Procedure states that “[n]o inmate shall be denied a Grievance Form,” (Doc. 23-2 at 4), Plaintiffs state that there is a two-grievance limit and that there is no way to withdraw an outstanding grievance, (Doc. 1 at 24; Doc. 6-1 at 7-8, 15; see also Doc. 6-1 at 21 (“Sometimes, officers block detainees from using the kiosk, which means they cannot submit medical requests.”).) 6 Other than arguing that the Paper-Based Grievance
6 Notably, Lieutenant Gibson’s second declaration, which the Court will not otherwise consider, also states that inmates are limited to only two outstanding grievances at a time. (Doc. 41-1 at 7.)
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Procedure—which, according to the document, has not been updated since September 2011—is the procedure in effect at the CCJ, Defendants do not otherwise dispute Plaintiff’s evidence that grievances are limited. In any event, even if the Paper-Based Grievance Procedure accurately describes the CCJ’s current grievance procedure, Defendants have not shown that Plaintiffs were properly informed of the CCJ’s grievance procedure. Lieutenant Gibson’s first declaration states, with no elaboration: “Inmates are informed about the Grievance Procedure during inmate orientation.” (Doc. 23-2 at 3.) Such a wholly conclusory statement is simply insufficient to establish that Plaintiffs were informed about the CCJ’s grievance procedure. See Rogers v. Evans, 792 F.2d 1052, 1062 n.9 (11th Cir. 1986) (“The affidavit is phrased in conclusory terms without citing facts. . . . The affidavit is defective to create a factual dispute.”).7
Moreover, not only have Defendants failed to show what the current grievance procedure at the CCJ actually is, but the presence of a two-grievance limit, with no ability to withdraw an outstanding grievance, coupled with evidence that grievances are routinely unanswered or untimely answered, (Doc.
7 Curiously, Defendants undermine their own argument on this point: “While the factual statement is brief, it is not a conclusory statement, as a conclusory statement would be simply stating inmates know of the Grievance Procedure.” (Doc. 40 at 6 n.2 (emphasis added).) That is exactly what Lieutenant Gibson’s statement says.
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6-1 at 20-21; id. at 31 (“When I have filed other grievances in the past, they were left pending for months without a response.”)), strongly weighs against requiring full exhaustion from Plaintiffs. Even assuming that the current grievance procedure, whatever it may be, follows the same deadlines listed in the PaperBased Grievance Procedure, Defendants’ own evidence shows that prison officials at the CCJ frequently fail to timely respond to Plaintiffs’ grievances. For example, Plaintiff Singleton filed his grievance requesting supplies to protect against COVID-19 on May 15, 2020. (Doc. 23-2 at 18.) The Paper-Based Grievance Procedure states that prison officials must respond within ten days and provide a final decision within 30 days of the date the grievance was filed. (Id. at 5.) Yet Singleton’s grievance did not receive any response until July 9, 2020, several weeks after the paper-based Grievance Procedure’s 30-day deadline. (Id. at 18.) Two of Plaintiff Watkin’s grievances, and at least two of Plaintiff Jones’s grievances, unrelated to COVID-19, were also untimely answered. (See id. at 1011, 19, 25.)8
The Supreme Court has given examples of when an administrative procedure is unavailable, including when it operates as a simple dead end, when it is so opaque that no ordinary prisoner could discern or navigate it, and when
8 Notably, Jones’s grievances received responses shortly after Plaintiffs’ complaint was filed—over a month after responses were due.
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prison officials thwart inmates from taking advantage of the process through machination, misrepresentation, or intimidation. See Ross, 136 S. Ct. at 1859–60. A two-grievance limit, standing alone, does not render a grievance procedure unavailable. Pearson v. Taylor, 665 F. App’x 858, 868 (11th Cir. 2016) (“[W]hile Pearson was limited to two active grievances at any one time, the defendants’ evidence reflected that [the prison’s] policy allowed him to withdraw a pending grievance and file a new one. Thus, Pearson had an available route to exhaust his claims regarding the denial of medical treatment according to the applicable procedural rules, even if it would have required him to prioritize his grievances.”). But here, the totality of the circumstances regarding the two-grievance limit, the inability to withdraw grievances, and CCJ officials’ frequent tardiness in responding to grievances is sufficient to show that the grievance procedure was unavailable for purposes of exhausting administrative remedies. See Jackson v. Griffin, 762 F. App’x 744, 746 (11th Cir. 2019) (holding that prison officials’ failure to comply with grievance procedural rules meant that grievance process was unavailable to prisoner); Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006) (“Prison officials may not take unfair advantage of the exhaustion requirement, and a remedy becomes ‘unavailable’ if prison employees do not respond to a properly filed grievance or otherwise use affirmative misconduct to prevent a prisoner from exhausting.” (brackets and internal quotation marks omitted)); Gibson v.
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Weber, 431 F.3d 339, 341 (8th Cir. 2005) (explaining that prison officials’ failure to comply with grievance procedure may excuse inmate’s noncompliance).
D. Eleventh Amendment Immunity It is “well-settled that Eleventh Amendment immunity bars suits brought in federal court when the State itself is sued and when an arm of the State is sued.” Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc) (internal quotation marks omitted). A Georgia county sheriff acts as an arm of the State of Georgia “when promulgating policies and procedures governing conditions of confinement” for a county jail. Purcell ex rel. Estate of Morgan v. Toombs Cnty., 400 F.3d 1313, 1325 (11th Cir. 2005). As a result, the county sheriff is entitled to Eleventh Amendment immunity from suit in his official capacity. Id. However, some9 suits “requesting injunctive or declaratory relief against state officials are not considered suits against the state and thus are not barred by sovereign immunity.” S&M Brands, Inc. v. Georgia ex rel. Carr, 925 F.3d 1198, 1204 (11th Cir. 2019) (citing Ex parte Young, 209 U.S. 123, 159-60 (1908) (injunctive relief) and Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 646 (2002) (declaratory relief)).
9 The Supreme Court has recognized an exception to Ex Parte Young “that prohibits a plaintiff from seeking injunctive relief when he alleges merely that a state official has violated state law.” Nat’l Ass’n of the Deaf v. Florida, 945 F.3d 1339, 1351 (11th Cir. 2020) (internal quotation marks omitted and emphasis in original).
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Defendants argue that, although “Plaintiffs’ claims for prospective injunctive relief against the Sheriff in his official capacity are not barred by the Eleventh Amendment under the Ex parte Young exception, all other claims are barred.” (Doc. 23-1 at 6.) As Plaintiffs point out, however, Plaintiffs “are not seeking any relief other than prospective relief against the Defendants, the very relief permissible.” (Doc. 37 at 25; see Doc. 1 at 109.) To the extent Defendants argue that Plaintiffs cannot seek declaratory relief specifically, “[i]nsofar as the exposure of the State is concerned, the prayer for declaratory relief adds nothing to the prayer for injunction.” Verizon Md., 535 U.S. at 646. As a result, Defendants are not entitled to dismissal based on Eleventh Amendment immunity.
E. Duplicative Parties Defendants argue that the claims against Defendants Boehrer, Gibson, Thomas, and Johnson are duplicative of those against Hill, and that all Defendants except Hill should be dismissed. (Doc. 23-1 at 7.) As noted earlier, suits “requesting injunctive or declaratory relief against state officials are not considered suits against the state.” S&M Brands, 925 F.3d at 1204; see also Nat’l Ass’n of the Deaf, 945 F.3d at 1345, 1351–52 (noting that lawsuit was brought against numerous Florida state officials); Fair Fight Action, Inc. v. Raffensperger, 413 F. Supp. 3d 1251, 1288 (N.D. Ga. 2019) (explaining that each defendant, as a Georgia state election official, had some connection with alleged misconduct).
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“Personal action by defendants individually is not a necessary condition of injunctive relief against state officers in their official capacity. All that is required is that the official be responsible for the challenged action.” Luckey v. Harris, 860 F.2d 1012, 1015 (11th Cir. 1988); see Ex parte Young, 209 U.S. at 157 (explaining that a state official may be sued so long as the official has “some connection” with alleged violation); see also Hafer v. Melo, 502 U.S. 21, 25 (1991) (clarifying that, to establish liability in suits against state officials in their official capacity, “[b]ecause the real party in interest in an official-capacity suit is the governmental entity and not the named official, the entity’s policy or custom must have played a part in the violation of federal law” (internal quotation marks omitted)). In contrast, “[t]here is no longer a need to bring official-capacity actions against local government officials” because “local government units can be sued directly for damages and injunctive or declaratory relief.” Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985); see also id. (“Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it, however, a State cannot be sued directly in its own name regardless of the relief sought. Thus, implementation of state policy or custom may be reached in federal court only because official-capacity actions for prospective relief are not treated as actions against the State.” (citation omitted)).
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Here, Plaintiffs allege that Defendant Hill, as Sheriff, is responsible for managing the CCJ and has delegated aspects of his authority to the other Defendants. (Doc. 1 at 14-16.) Because these Defendants have some connection with the alleged misconduct, Plaintiffs’ claims may proceed against each of the named Defendants. See Luckey, 860 F.2d at 1015; Fair Fight Action, 413 F. Supp. 3d at 1288 (“[T]hese Defendants have some connection with the asserted misconduct at issue in this case. Said connection is sufficient for this case to proceed against the named State Defendants. . . .”)
F. Claim 1 (Unconstitutional punishment in violation of the Due Process Clause of the 14th Amendment)
While the conditions under which a convicted inmate are held are scrutinized under the Eighth Amendment’s prohibition on cruel and unusual punishment, the conditions under which a pretrial detainee are held are reviewed under the Due Process Clause of the Fourteenth Amendment. Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016). Plaintiffs Jones and Watkins, as pretrial detainees, allege that they are being unconstitutionally punished by being held at the CCJ and suffering from a risk of contracting COVID-19. (Doc. 1 at 100-01.) According to Jones and Watkins, “No legitimate government purpose is served by unnecessarily subjecting pretrial detainees to an excessive risk of exposure to and contracting COVID-19.” (Id. at 100.) Furthermore, they claim, “Detention inherently increases the chance of exposure to COVID-19.” (Doc. 37 at 39.)
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Defendants argue that this claim should be dismissed because it is “an improper carve out of a conditions of confinement claim, which Plaintiffs already assert in Count II.” (Doc. 23-1 at 27); see County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (“[I]f a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” (internal quotation marks omitted)); Henry v. Hulett, 969 F.3d 769, 780–81 (7th Cir. 2020) (en banc) (“[T]he Supreme Court has held unenumerated rights—such as those arising from the due process clause—do not afford a prisoner greater protection than the Eighth Amendment. . . . [T]his conclusion is specific to the Court’s substantive due process jurisprudence . . . .” (emphasis, citation, and internal quotation marks omitted)). Defendants maintain that Plaintiffs are attempting to impose a rational basis test under the 14th Amendment, when in fact they have to show that the deprivation suffered was objectively serious and that prison officials were deliberately indifferent to the violation of the constitutional rights. (Doc. 23-1 at 26–27.) In response, Plaintiffs point to Jacoby v. Baldwin County, 835 F.3d 1338, 1344-46 (11th Cir. 2016), in which the Eleventh Circuit evaluated a pretrial detainee’s claims under the substantive due process test established by Bell v. Wolfish, 441 U.S. 520, 538-39 (1979), and they argue that the Court must determine whether the continued detention of the
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pretrial detainees is reasonably related to a legitimate, non-punitive government purpose or is excessive in relation to that purpose. (Doc. 37 at 38.)
Defendants make a strong argument, and Jacoby appears to be at some tension with Lewis and with numerous Eleventh Circuit cases that consider pretrial detainees’ claims under the deliberate indifference standard. See, e.g., Swain v. Junior, 958 F.3d 1081, 1088 (11th Cir. 2020) (observing that “a pre-trial detainee’s rights exist under the due process clause of the Fourteenth Amendment but are subject to the same scrutiny as if they had been brought as deliberate indifference claims under the Eighth Amendment” (internal quotation marks omitted)); Dang ex rel. Dang v. Sheriff, 871 F.3d 1272, 1279 (11th Cir. 2017) (“As a pretrial detainee, Dang alleges inadequate medical care under the Fourteenth Amendment rather than the Eighth Amendment. Nevertheless, Dang’s claims are evaluated under the same standard as a prisoner’s claim of inadequate care under the Eighth Amendment.” (citations omitted)); Melton, 841 F.3d at 1220 (“As a pretrial detainee at Pickens County Jail, Melton’s rights arose under the due process clause of the Fourteenth Amendment rather than the Eighth Amendment. Nonetheless, Melton’s claims are subject to the same scrutiny as if they had been brought as deliberate indifference claims under the Eighth Amendment.” (citation and internal quotation marks omitted)); Goodman v. Kimbrough, 718 F.3d 1325, 1331 n.1 (11th Cir. 2013) (“Where, as here, the plaintiff is a pretrial detainee such
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as Goodman, the Due Process Clause of the Fourteenth Amendment, not the Eighth Amendment’s prohibition against cruel and unusual punishment, governs our analysis. Regardless of the particular taxonomy under which we analyze the case, however, the result is the same, because the standards under the Fourteenth Amendment are identical to those under the Eighth.” (citation and internal quotation marks omitted)); cf. Jacoby, 835 F.3d at 1345 n.3 (noting that “we need not decide Mr. Jacoby’s claim that the Eighth Amendment’s subjective deliberate indifference standard conflicts with Bell’s objective ‘punishment’ standard” because appellant could not prevail under either standard). However, much of the tension can be resolved by observing that a claim that a “condition of pretrial detention amounts to punishment,” Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004), is not identical to a claim that deliberate indifference to a serious medical need amounts to punishment. A discussion of the Bell standard is instructive, which the Circuit discussed at length in Jacoby.
A pretrial detainee may not be punished prior to an adjudication of guilt, but “the government ‘may detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.’” Jacoby, 835 F.3d at 1344-45 (quoting Bell, 441 U.S. at 53637). “Whether a condition of pretrial detention amounts to punishment turns on
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whether the condition is imposed for the purpose of punishment or whether it is incident to some legitimate government purpose.” Id. (brackets and internal quotation marks omitted); see Bell, 441 U.S. at 561 (“[T]he determination whether these restrictions and practices constitute punishment in the constitutional sense depends on whether they are rationally related to a legitimate nonpunitive governmental purpose and whether they appear excessive in relation to that purpose.”). A court must consider whether (1) any “legitimate goal” is served by the prison conditions and (2) whether those conditions are “reasonably related” to that goal. Jacoby, 835 F.3d at 1345 (internal quotation marks omitted).10
In delineating the “condition” that leads to unconstitutional “punishment,” a careful reading of Bell, Jacoby, and Magluta shows that the focus is on intentional conduct by a defendant designed to punish a plaintiff, as opposed to a reckless act or omission with regard to a medical need: Bell concerned the policy of “double bunking” in cells designed for only one person, and Jacoby and Magluta concerned administrative segregation as a disciplinary measure. For example, the plaintiff in Jacoby alleged that he was forced into administrative segregation after testing positive for cocaine, and “he had to sleep on the floor next to a toilet while
10 To the extent Defendants could be read only as challenging Plaintiffs’ claim as not cognizable, the Court is independently required under 28 U.S.C. § 1915A to fully evaluate the merits of Plaintiffs’ claim.
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in administrative segregation because he was the third inmate in an 8-by-10-foot cell meant for two.” Jacoby, 835 F.3d at 1343. He further alleged that “his cellmates urinated and defecated over him as he tried to sleep, and that other inmates in the segregation unit threw feces and urine at him,” causing him to develop “a foot rash due to these unsanitary conditions and the lack of hygiene products available to him.” Id. (brackets and internal quotation marks omitted). The Eleventh Circuit, however, ruled that, “[t]aken in the light most favorable to him, Mr. Jacoby’s allegations establish that he was temporarily forced to sleep on a mattress on the floor near the toilet” and that this was insufficient to show that this condition amounted to punishment. Id. at 1346. In other words, the court focused on the intentional placement of the plaintiff as a third person in administrative segregation in a cell meant for two rather than on the consequences by third parties following that decision.
Here, not only do Jones and Watkins simply allege that Defendants’ failed to address COVID-19, as opposed to affirmative conduct, but they also have not alleged that Defendants intentionally exposed them to a greater risk of contracting COVID-19. Ultimately, Plaintiffs are attempting to shoehorn a run-of-the-mill deliberate indifference claim into a substantive due process claim without any allegation that Defendants are intentionally punishing Plaintiffs. The fact that COVID-19 may be spreading at the CCJ is not the result of a policy by Defendants
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to spread COVID-19. At most, Jones and Watkins have only alleged that Defendants are intentionally detaining them and that “[d]etention inherently increases the chance of exposure to COVID-19.” (Doc. 37 at 39; Doc. 1 at 38.) But see Cureno Hernandez v. Mora, ___ F. Supp. 3d ___, ___, No. 1:20-CV-00104-H, 2020 WL 3246753, at *8 (N.D. Tex. June 15, 2020) (“The incidence of diseases or infections, standing alone, cannot imply unconstitutional confinement conditions, since any densely populated residence may be subject to outbreaks.” (brackets and internal quotation marks omitted)). As the Third Circuit recently ruled in a COVID-19 case involving immigration detainees, however:
The District Court could see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments—because doing so would constitute a punishment to Petitioners. But Petitioners’ confinement implicates multiple legitimate governmental objectives, including: (1) ensuring Petitioners’ appearances at . . . proceedings; (2) protecting the public; and (3) managing the detention facilities. Hope v. Warden York Cnty. Prison, ___, F.3d ___, ___, No. 20-1784, 2020 WL 5001785, at *9 (3d Cir. Aug. 25, 2020) (brackets and internal quotation marks omitted); see also id. at *15 n.7 (noting that “[s]ome detainees released on their own recognizance in [the case below] absconded”); cf. Hoffer v. Sec’y, Fla. Dep’t of Corr., ___ F.3d, ___, ___, No. 19-11921, 2020 WL 5105013, at *10 (11th Cir. Aug. 31, 2020) (explaining that cost considerations may permissibly factor into officials’ decisions to provide care to inmates). Given Jones and Watkins’s failure to allege
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any intentional conduct besides detention by Defendants that amounts to
punishment, and given the strong legitimate interests by the State in detaining
Jones and Watkins, Defendants are entitled to dismissal of this claim.11
G. Claims 3 and 4 (Violations of the ADA and Rehabilitation Act)
Under Title II of the Americans with Disabilities Act (“ADA”), “no
qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132. Under section 504 of the Rehabilitation Act (“RA”), “[n]o
otherwise qualified individual with a disability in the United States . . . shall,
solely by reason of her or his disability, be excluded from the participation in, be
11 Defendants do not explicitly move to dismiss Count II, but as noted earlier, the Court is independently required under 28 U.S.C. § 1915A to fully evaluate the merits of Plaintiffs’ claims. This evaluation need not be lengthy, however, as Plaintiffs—who propose to represent all classes for this claim—have stated a claim of deliberate indifference. See Swain v. Junior, 958 F.3d 1081, 108889 (11th Cir. 2020) (stating standard for deliberate indifference and noting that standard is same whether based on Fourteenth Amendment for pretrial detainees or Eighth Amendment for convicted prisoners). COVID-19 is a serious disease. In addition, although Plaintiffs could have provided more detail to support their allegations, Plaintiffs have shown that Defendants are aware of the risk of COVID-19 generally and the risk that it poses to the CCJ. (Doc. 1 at 47-48.) Furthermore, Plaintiffs have sufficiently alleged that, despite this knowledge, Defendants’ failure to adequately respond to COVID-19 amounts to reckless conduct. See Swain, 958 F.3d at 1089; Hoffer, 2020 WL 5105013, at *4 n.2; (Doc. 1 at 52-75.)
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denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). Claims under either act are governed by the same standard, and courts “rely on cases construing Title II and § 504 interchangeably.” Silberman v. Miami Dade Transit, 927 F.3d 1123, 1133 (11th Cir. 2019) (internal quotation marks omitted).
To state a claim under either Title II or § 504, a plaintiff must establish (1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff’s disability. Id. at 1134 (internal quotation marks omitted). “A physical impairment, standing alone, . . . is not necessarily a disability as contemplated by the ADA.” Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 911 (11th Cir. 1996). Instead, to qualify as disabled, a plaintiff must show that “he has ‘(A) a physical or mental impairment that substantially limits one or more of the major life activities; (B) a record of such an impairment; or (C) is regarded as having such an impairment.’” Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1264 (11th Cir. 2007) (quoting 42 U.S.C. § 12102(2)) (brackets and ellipsis omitted); see Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1268 (11th Cir. 2014). “Major life activities” include “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Greenberg, 498 F.3d at 1264 (internal quotation
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marks omitted); see also 42 U.S.C. § 12102(2)(A). When alleging a failure to provide a reasonable accommodation, the “duty to provide a reasonable accommodation is not triggered unless a specific demand for an accommodation has been made.” D’Onofrio v. Costco Wholesale Corp., 964 F.3d 1014, 1022 (11th Cir. 2020) (internal quotation marks omitted) (considering a claim under Title I of the ADA).
Plaintiffs, as proposed representatives of the disability subclasses, allege that Defendants have denied them “important services, programs, and activities that would mitigate the risk of COVID-19” solely because of their disabilities and that Defendants have failed to provide reasonable accommodations. (Doc. 1 at 105.) Defendants contend that Plaintiffs have not shown that they are disabled as defined by the ADA and RA. (Doc. 40 at 12.) Although Defendants’ argument may have some merit, any pleading deficiency on this point likely could be cured with more detailed allegations.
However, even assuming that Plaintiffs are disabled, Plaintiffs have not sufficiently alleged that they were discriminated against because of their disabilities. A reading of Plaintiffs’ complaint shows that Defendants have allegedly failed to adequately respond to COVID-19 with respect to all inmates, not simply those with disabilities, and thus Defendants did not discriminate against Plaintiffs by reason of their disabilities. See Silberman, 927 F.3d at 1133; see also Money v. Pritzker, ___ F. Supp. 3d ___, ___, No. 20-CV-2093, 2020 WL 1820660,
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at *18-19 & n.14 (N.D. Ill. Apr. 10, 2020) (ruling that inmates failed to show they
were likely to succeed on ADA claim where prison officials’ COVID-19 release
policies treated all inmates equally and may even have disproportionally
benefited disabled inmates); Frazier v. Kelley, ___ F. Supp. 3d ___, ___, No. 4:20-
CV-00434-KGB, 2020 WL 2561956, at *35 (E.D. Ark. May 19, 2020) (ruling that
inmates failed to show they were likely to succeed on ADA claim because there
was no evidence that prison officials’ failure to combat COVID-19 and provide
accommodations was because of inmates’ alleged disabilities). Moreover, to the
extent Plaintiffs allege that Defendants have failed to provide reasonable
accommodations, Plaintiffs have not alleged that they ever made a specific demand for an accommodation.12 See D’Onofrio, 964 F.3d at 1022.13 Accordingly,
Defendants are entitled to dismissal of these claims.
12 That Plaintiffs have been excused from exhaustion under the PLRA does not excuse their failure to request an accommodation under the ADA and RA.
13 Furthermore, the only “reasonable accommodation” Plaintiffs allege in their complaint is release from custody. (Doc. 1 at 66 (“[N]o set of conditions can adequately protect members of this class. Public health experts recommend rapidly releasing people most vulnerable to COVID-19 from custody. Release not only protects the most vulnerable people from being infected with the virus, but also eases crowding, thereby allowing for greater risk mitigation for people held or working in a jail, and the broader community.”); see Doc. 37 at 36 (“The complaint outlines the steps necessary to protect members of the Disability Subclasses: release or transfer from the Clayton County Jail.”).) However, release from custody is not a “reasonable accommodation,” and the PLRA prohibits such release without a prior “order for less intrusive relief that has failed to remedy the
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H. Claim 5 (Petition for a Writ of Habeas Corpus)
Finally, Plaintiffs, as proposed representatives of the medically vulnerable
and disability subclasses, seek a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241 directing their release or transfer from the CCJ. (Doc. 1 at 107-08.)
However, this Court has regularly held that litigants like Plaintiffs may not
proceed under both habeas and § 1983 in the same action. See Boyd v. Warden, 856
F.3d 853, 865 (11th Cir. 2017) (explaining that “habeas and § 1983 are mutually
exclusive avenues for relief” (internal quotation marks omitted)). “Simply put, if
the relief sought by the inmate would either invalidate his conviction or sentence
or change the nature or duration of his sentence, the inmate’s claim must be raised
deprivation of the Federal right sought to be remedied through the prisoner release order.” 18 U.S.C. § 3626(a)(3)(A)(i). In addition, only a three-judge court can enter such a release order, and such order can only be entered “if the court finds by clear and convincing evidence that . . . crowding is the primary cause of the violation of a Federal right; and . . . no other relief will remedy the violation of the Federal right.” Id. § 3626(a)(3)(E). Insofar as Plaintiffs contend that the PLRA’s restrictions on release do not apply because “it is Defendants’ gross mismanagement of the outbreak, not overcrowding, that is the primary cause of the constitutional violations in this case,” (Doc. 37 at 44), “[t]he appropriate Eleventh Circuit relief from prison conditions that violate the Eighth Amendment during legal incarceration is to require the discontinuance of any improper practices, or to require correction of any condition causing cruel and unusual punishment. . . . [R]elief of an Eighth Amendment violation does not include release from confinement.” Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990).
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in a § 2254 habeas petition, not a § 1983 civil rights action.” 14 Id. (internal quotation marks omitted); see also Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253, 1288 (11th Cir. 2013) (explaining that “§ 2241 habeas petitions, which must be filed in the incarceration district, are generally reserved for challenges to execution of a sentence or the nature of confinement, not the validity of the sentence itself or the fact of confinement”), overruled on other grounds by McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017); Vaz v. Skinner, 634 F. App’x 778, 781 (11th Cir. 2015) (ruling that a “§ 2241 petition is not the appropriate vehicle for raising an inadequate medical care claim, as such a claim challenges the conditions of confinement, not the fact or duration of that confinement”).
Plaintiffs attempt to dance around this problem by arguing that they are not challenging the conditions of their confinement, but rather are challenging the “fact” of their confinement because confinement itself is unconstitutional in light of COVID-19. (Doc. 37 at 40.) This argument fails. The only reason Plaintiffs claim the “fact” of their incarceration is unconstitutional is because of the conditions in
14 Jones and Watkins, as pretrial detainees, cannot file 28 U.S.C. § 2254 petitions because they have not been sentenced pursuant to a conviction. However, even if they were to file a separate 28 U.S.C. § 2241 action, it is likely that they would be unable to obtain any relief, both because this Court would likely be required to abstain under Younger v. Harris, 401 U.S. 37 (1971), and because they have not shown that they have exhausted their state-court remedies.
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Case 1:20-cv-02791-JPB-CCB Document 52 Filed 09/16/20 Page 39 of 40 the jail related to COVID-19. Plaintiffs can try to twist the description of their claim as they wish, but at the end of the day it is a conditions-of-confinement claim that cannot exist under § 2241. See A.S.M. v. Warden, __F.Supp.3d__, __, No. 7:20-CV-62 (CDL), 2020 WL 2988307, at *4 (M.D. Ga. June 3, 2020) (finding that the court lacked jurisdiction to consider petitioners’ habeas corpus remedy and that petitioners were not otherwise entitled to release from confinement and holding that “[r]elease from detention is not available as a remedy for unconstitutional conditions of confinement claims”). Accordingly, Defendants are entitled to dismissal of this claim.15
15 Because this claim is one challenging conditions of confinement, the Court declines to address Defendants’ argument that Plaintiffs have failed to exhaust their administrative remedies. (Doc. 23-1 at 23–24).
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Case 1:20-cv-02791-JPB-CCB Document 52 Filed 09/16/20 Page 40 of 40 III. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Defendants’ motion to dismiss (Doc. 23) be GRANTED IN PART and DENIED IN PART, Plaintiff Randolph Mitchell’s individual claims be DISMISSED, the remaining Plaintiffs’ claims of deliberate indifference be ALLOWED TO PROCEED, and the remaining Plaintiffs’ remaining claims be DISMISSED.
IT IS SO RECOMMENDED, this 16th day of September, 2020.
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 Case 1:20-cv-02791-JPB-CCB Document 57 Filed 09/24/20 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RHONDA JONES et al., Plaintiffs,
v.
VICTOR HILL et al., Defendants.

CIVIL ACTION NO. 1:20-CV-2791-JPB-CCB

PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION The jail described in Defendants’ brief (Doc. 41) bears little resemblance to the one in which Plaintiffs are held. Defendants claim to have implemented comprehensive COVID-19 prevention measures, but their assertions are contradicted by detainees who describe deplorable conditions and harrowing accounts of illness and neglect. Neither do Defendants acknowledge that most of their minimal mitigation measures occurred after this lawsuit was filed. Plaintiffs attach to this brief thirteen additional declarations from detainees who would not recognize the jail described in Defendant Terrance Gibson’s declaration (Doc. 41-1) as the one in which they are incarcerated. The declarations show that Defendants and their officers ignore people who report COVID-19

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symptoms; fail to isolate infected persons; fail to test many people, against their own medical provider’s advice; fail to provide detainees with useable facemasks; fail to provide sufficient quantities of soap and cleaning supplies; and fail to enforce social distancing measures.
As for Defendants’ claim that “statistically speaking,” there is “no COVID19 outbreak at the CCJ” (Doc. 41 at 4), that assertion crosses the line from partisan wordsmithing to misrepresentation of fact. (Ex. A, Supp. Fefferman Decl. ¶ 7.) Defendants’ description of the number of positive COVID-19 cases at the jail as “low” is not supported by Defendants’ own data, which shows consistently high COVID-19 positivity rates over several months. (Id. ¶¶ 7-10.)
Plaintiffs are likely to succeed on the merits of their claims. Given Defendants’ insufficient response to the pandemic, members of the putative class face an imminent risk of irreparable injury absent an injunction. The balance of harms favors Plaintiffs because the risk of serious illness is substantial and the proposed injunction is carefully crafted to give Defendants the responsibility in the first instance for formulating and implementing “reasonably specific and detailed written plans” to address deficient conditions. (Doc. 19-15 ¶ 1.) An injunction will serve the public interest by protecting the rights and lives of people in the Jail.
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STATEMENT OF FACTS
A. Many of the Prevention Measures Described in Defendants’ Brief Are Not Actually in Practice in the Jail.
1. Defendants Have Failed to Identify, Isolate, and Treat Infected Persons, Instead Leaving Them Inside Crowded Cells Where They Spread the Virus to Others.
According to Defendants, “[i]f any inmate shows symptoms of COVID-19
after intake,” the person is “separated from other inmates, medically evaluated in the
medical infirmary, and tested for COVID-19.” (Doc. 41 at 12.) Defendants are
silent regarding the testimony of numerous detainees who had precisely the opposite
experience. (Doc. 19-1 at 8-9, 21.) To give just a few examples:
• In April 2020, F.S., who had no mask, was locked in a cell with a woman who experienced fever, vomiting, and coughing up blood. (F.S. Decl. ¶¶ 21-24.) F.S. became infected. (Id. ¶ 25.) She submitted a sick call request but did not see a nurse for a week. (Id. ¶¶ 25-26.) Although she reported her symptoms, she was left in her housing unit where she continued to congregate with others for food service. (Id. ¶ 25-27.) F.S. and her cellmate were symptomatic for two weeks, during which they were neither tested nor isolated. (Id. ¶ 27.)
• In April 2020, D.H. experienced symptoms of COVID-19. (D.H. Decl. ¶ 20.) He reported his symptoms to a nurse but was not isolated or given a mask. (Id. ¶ 23.) For the next two weeks, he followed orders to perform his trustee functions while symptomatic. (Id. ¶ 24.) He spent twelve hours per day passing out meals in other housing units without a mask. (Id.)
• In May 2020, W.L.M was placed in a cell, without a mask, with a man who had just been tested for COVID-19 and was symptomatic. (W.L.M. Decl. ¶ 18-19.) W.L.M. developed symptoms of COVID-19. (Id. ¶ 21.) He told a nurse about his symptoms but was not given a mask or isolated. (Id. ¶ 23.)
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He experienced vomiting, diarrhea, and “immense difficulty breathing.” (Id. ¶ 28.) One night, he “felt as if [his] lungs were going to collapse” (id. ¶ 29), and “begged [an officer] for medical attention” (id. ¶ 32) but received none. (Id. ¶ 33.)
More recent declarations show that Defendants still fail to isolate and treat
people with COVID-19 symptoms.
• In July 2020, S.T. developed a fever, diarrhea, shortness of breath, and loss of the ability to taste. (S.T. Decl. ¶ 11.) Her cellmates experienced similar symptoms. (Id. ¶ 10.) S.T. reported their symptoms to officers “at each count within the first day of the onset of symptoms.” (Id. ¶ 12.) When one of S.T.’s cellmates became dangerously short of breath, S.T. banged on the cell door for assistance, but no one responded. (Id.) After three days of asking for help, S.T. saw a nurse. (Id. ¶ 13.) The nurse found that all three women had fevers, but S.T. and her cellmates remained in the housing unit. (Id. ¶ 14.) S.T. was not tested or isolated. (Id. ¶ 15-16.)
• In July 2020, a man showing symptoms of COVID-19, including “severe coughing fits,” was moved into a cell shared by G.R. and R.C. (G.R. Decl. ¶ 7.) G.R. and R.C. repeatedly told officers that the new cellmate could infect them with COVID-19, but the symptomatic man was not moved for a week. (Id. ¶ 7-8.) R.C. then developed symptoms of COVID-19. (Id. ¶ 9.) R.C. reported these symptoms to officers and submitted sick call requests but was not moved. (Id.) G.R. then developed COVID-19 symptoms. (Id. ¶ 10.) He submitted sick call requests asking to be tested and evaluated but “never received any response” and was not tested. (Id.)
• In July 2020, P.B. developed COVID-19 symptoms, including difficulty breathing and inability to taste or smell. (P.B. Decl. ¶¶ 6-7.) He told an officer but was not isolated or tested. (Id.) He then told a nurse about his symptoms and requested a test, but the nurse only took his temperature, gave him Tylenol, and sent him back to his cell. (Id.) Worried he would infect others, P.B. asked an officer to move him out of the housing unit. (Id. ¶ 7.) Instead, P.B. was moved within the same unit into a cell with two other men. (Id.) He was not tested. (Id.)
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• In June 2020, J.J.L.’s cellmate developed COVID-19 symptoms. (J.J.L. Decl. ¶¶ 6-7.) After reporting his symptoms and asking officers for care for three days, the cellmate finally lay on the dorm floor for hours in protest until a nurse was called. (Id. ¶ 7.) Soon thereafter, J.J.L. experienced vomiting, fever, and other symptoms. (Id. ¶ 9.) He too sought medical care for days but was not taken to medical until an officer found him passed out on his cell floor. (Id. ¶¶ 9-11.) J.J.L. was returned to the dorm without being tested. (Id. ¶ 12.)
2. Many Detainees with Active COVID-19 Symptoms and Recent Exposure to Infected People Do Not Receive Tests.
Defendants claim that “[n]o inmates at the CCJ are denied a COVID-19 test.”
(Doc. 41 at 11.)1 Detainees report otherwise. C.B. developed a fever and lost his
senses of taste and smell in late July. (C.B. Decl. ¶ 6.) He asked to be tested by
grievance, medical request, and verbal request. (Id.) C.B. states:
A nurse came to my cell and took my temperature. She told me my temperature wasn’t high enough to bring me to the medical wing. I had no further contact from her or anyone else about my symptoms, which I continued to experience for weeks. I was not quarantined or provided with any medical care whatsoever. . . I have still never been tested for COVID-19. (C.B. Decl. ¶ 6.)2
R.J. experienced COVID-19 symptoms in July 2020. (R.J. Decl. ¶ 7.) He submitted
1Defendants claim to provide testing to “any inmate who requests same, any inmate with signs or symptoms consistent with COVID-19, and asymptomatic inmates with recent known or suspected exposure to COVID-19.” (Id.) 2 C.B. submitted a grievance asking for COVID-19 testing. (C.B. Decl. ¶ 19.) The grievance was “pending” for a month, during which time C.B. submitted a request, asking for a response to the grievance. (Id.) C.B. received no response, and the grievance later “disappeared from the kiosk.” (Id.)
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three sick call requests but did not see a nurse for almost a month. (Id.) Regarding
testing, R.J. states:
When I was called up to the medical wing, I told the nurse about my symptoms, which were causing me a lot of discomfort and fear. The nurse took my temperature and blood pressure and told me that I was “good.” I asked her if I could be tested for COVID-19, but she told me I had to have a fever to be tested. She then sent me back to my cell. I have never been tested for COVID-19. (R.J. Decl. ¶ 7.)
Plaintiff Singleton, F.S., A.W., J.H., L.P., P.B., and A.B. were also denied tests, despite symptoms and/or exposure to infected people.3 Indeed, Defendants are
failing to follow the advice of their own medical director, who recommended testing “all new inmate[s] that are admitted to the jail.”4
3. Detained People Still Lack Access to Useable Masks, Minimally Adequate Quantities of Soap, and Cleaning Supplies.
a. Masks
Defendants do not deny that they failed to issue most detainees facial
coverings, a critical prevention measure, for at least three months into the pandemic.
3 See Singleton Decl. ¶ 10; F.S. Decl. ¶ 27; A.W. Decl. ¶¶ 40-44; J.H. Decl. ¶ 5; L.P. Decl. ¶ 7; P.B. Decl. ¶ 6; cf. A.B. Decl. ¶¶ 7-14 (describing unsuccessful efforts over the course of four months to get COVID-19 test, without success as of September 24, 2020). 4 See Exhibit C, Email from E. Smith, July 20, 2020 (stating that “[a]s an intervention to fight COVID-19, our medical director Dr. Clopton is recommending that we test all new inmate[s] that are admitted to the jail.”).
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(Doc. 19-1 at 32; C.C. Decl. ¶ 22 (stating on June 25 that “[a]lmost no one has face masks”); J.H. Decl. ¶ 26 (stating “many men in my dorm still did not have masks” as of June 19); G.R. Decl. ¶ 5 (“I received one cloth mask in mid-July.”).) They are silent on the fact that, from March through early July, elderly and medically vulnerable people in their jail resorted to tying bits of torn underwear and ripped sheets over their faces to protect themselves from a deadly virus. (See, e.g., Watkins Decl. ¶ 35; Jones Decl. ¶ 14; Mitchell Decl. ¶¶ 19-20; Singleton Decl. ¶¶ 4, 8.)
Defendants ignore all of that and claim (with no reference to the date of alleged implementation) that “every inmate” is provided with two facemasks at intake, a washable mask and a disposable mask. (Doc. 41 at 7-8.) They state that if a detainee loses her mask, another “will be provided for free.” (Id. at 8.)
It is true that more detainees have masks than did when this lawsuit was filed, such that elderly people and cancer patients are no longer walking around the jail with underwear tied over their faces. However, many detainees, such as J.J.L., still have no mask. (See J.J.L. Decl. ¶ 5; L.P. Decl. ¶¶ 4-6.) Detainees do not receive two masks and replacements are not available. (See id.)5
5 See also, e.g., R.J. Decl. ¶¶ 6, 15 (stating that he received one mask at intake in July, his mask is now soiled, he has asked for a replacement, “officers told me that they don’t have any more masks,” and his grievance asking for a new mask “disappeared” from the kiosk); C.B. Decl. ¶ 7 (stating that he received a mask in
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By way of further example, S.T. did not receive any mask when she entered the jail in June and had none for weeks thereafter. (S.T. Decl. ¶ 7.) When F.B. entered the jail on August 7, he received a previously used, “threadbare,” cloth mask, on which “the straps were loose and stretched out.” (F.B. Decl. ¶ 4.) F.B. asked several officers for a replacement without success. (Id.) W.G. is a 78-year-old man arrested for a traffic offense, who spent four days in the jail in August and lacked a functional mask until the last day of his incarceration. (W.G. Decl. ¶¶ 5-6.) And P.B. states that as of September 17, three new arrivals in his dorm have no masks. (P.B. Decl. ¶ 14.)
b. Soap for Handwashing According to Defendants’ “protocol,” all incarcerated persons “are provided multiple bars of soap for personal use and additional soap is available for replacement” free of charge. (Doc. 41 at 7.) In practice, detainees are allotted four ounces of liquid soap (not “bars”) per week, which is an insufficient quantity for handwashing, showering, and in-cell cleaning. (J.H. Decl. ¶ 19; Watkins Decl. ¶ 15; A.W. Decl. ¶ 17; F.S. Decl. ¶ 14.)6 Contrary to Defendants’ claims, moreover (Doc.
June, has asked officers for a new mask multiple times, but has never received one). 6 Many detainees must use their weekly soap allotment for in-cell cleaning and laundry, in addition to personal hygiene. (Singleton Decl. ¶ 6; Watkins Decl. ¶ 15.)
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41 at 7), detainees are not able to get additional soap when needed.7 Liquid soap at
the jail is strictly rationed, even as disease spreads. (Sparkman Decl. ¶¶ 56-58.)
c. Cleaning Supplies and Sanitation
Defendants claim that “each cell is cleaned and sanitized twice a day by the
inmates in the cell.” (Doc. 41 at 9.) For this purpose, detainees allegedly receive “a
broom, a mop, and a bucket that contains OPTIM 1 and/or bleach.” (Id.) Trustees
allegedly spray the toilet and sink twice a day with disinfectant solution. (See id.)
Here again, the purported protocol does not operate in practice.
• C.B. cannot sanitize his cell twice a day because he lacks the supplies. (C.B. Decl. ¶¶ 12-13.) He has access once a day to a bucket of “black” water and a broom. (Id.) He usually does not have enough personal soap for cell cleaning since he must conserve it for showering and washing hands. (Id. (“I have only seen a trustee spray my sink and toilet once in the past month.”).)
• R.J. has “[a]t no time” been provided twice a day with a broom, mop, and bucket with cleaning solution. (R.J. Decl. ¶¶ 10-11.) Once per day, he receives a bucket of dirty water. (Id. ¶ 10.) Despite his requests for additional cleaning solution, the last time a trustee sprayed the toilet or sink was “at least six weeks ago.” (Id. ¶ 10-11)
• S.T. receives a mop, broom, and bucket of dirty water about three times per week, not twice a day. (S.T. Decl. ¶ 8.) Cell toilets are sprayed “infrequently.” (Id.)
• F.B. has access once a day to a mop and bucket filled with water that “quickly
7 See also C.B. Decl. ¶ 15 (stating that the only way to get more than the allotted amount of soap per week is to barter with a trustee or purchase it); R.J. Decl. ¶ 8 (stating that “detainees . . . certainly don’t get free replacement soap”).
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becomes filthy and unusable.” (F.B. Decl. ¶ 11.) F.B. does not have access to cleaning chemicals. (Id.) He states: “I have asked officers for cleaning supplies. The officers have told me to talk to the trustees, and the trustees have told me that they are not allowed to share cleaning materials with us.” (Id.)
4. Several of Defendants’ Purported Social Distancing Protocols Are Not Implemented in Practice.
Defendants claim that they now enforce social distancing, including by distributing meals to each cell and requiring people to come out of cells for pill call “one by one and separate six feet apart.” (Doc. 41 at 10.) As for court appearances, Defendants claim that detainees remain in their pods until their case is called, and then move to a holding area for a Zoom hearing. (Id. at 10-11.)
Here again, Defendants’ alleged protocols are not implemented. In a declaration dated September 17, 2020, F.B. reports that detained people still must congregate in crowds of people to receive food and medication.
At mealtime, everyone in my tier necessarily lines up close to one another in order to get their food. If we don’t congregate in line to wait for our food, the officers will wait until we are in line before they start to distribute food trays. At pill call, people who get medications have to line up again. Jail staff do not encourage us to maintain social distancing at all. (F.B. Decl. ¶ 8.) Similarly, in a declaration dated September 18, 2020, R.J. states that “[i]t is not the case that all meals are delivered to each detainee’s cell.” (R.J. Decl. ¶ 13.) Rather, “we all line up close together” to wait in line for food. (Id.) “There is no mention of social distancing from the officers or the trustee workers.” (Id.) The jail “does
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not require, nor has it really attempted to implement social distancing at mealtimes or pill call.” (S.T. Decl. ¶ 9.) Instead, people must line up or crowd around at mealtimes and pill call. (Id.)
Regarding court hearings, video stills from a recent date in magistrate court (September 17) show twelve women (two of whom are in wheelchairs) crammed together in a hallway awaiting court. (Ex. D, Screenshots from Court Appearances.) A large crowd of men is visible in the background. (Id.) Consistent with Exhibit D, P.B., described recently being crowded into a small cell with nine other people and made to wait three hours for his case to be called.
When we have a court appearance, we do not stay in our cells until our case is called. I went to court last Friday, September 11, 2020. I was taken to a single holding cell that is about 12 ft by 8 ft and was left there for over 3 hours with about nine other people while we waited for our court appearances. During this time, I had no ability to maintain distance from the other people in the small cell. There were no efforts to allow for social distancing while we waited to see the judge. (P.B. Decl. ¶ 11.) B. The Jail’s Undisputed COVID-19 Data Shows an Alarming
COVID-19 Positivity Rate at the Jail. There is a COVID-19 outbreak at the Jail.8 Defendants cite data from May,
8 See Supp. Fefferman Decl. ¶¶ 5-7 (“[T]he infections at the Jail clearly meet the definition of an ongoing outbreak”); see also Exhibit E, Email from O. Adewale, District Epidemiologist, Clayton County Health District, Georgia Department of Public Health, Sept. 23, 2020 (“A confirmed case of COVID-19 in one or more inmates or staff is counted as an outbreak.”).
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June, and July and conclude that “the number of positive cases in the CCJ has
remained low and stable.” (Doc. 41 at 15-16.) Far from showing a “low” number
of cases, the Defendants’ data shows a COVID-19 positivity rate of 27.1% in May,
18.75% in June, and 27.2% in July. (Id.) In the medical community, such positivity
rates “would not be reasonably characterized as ‘low.’” (Supp. Fefferman Decl. ¶
8.) Instead, they show that “mitigation efforts have demonstrably failed to prevent
ongoing spread.” (Id. ¶ 7.)9
9 With their response brief, Defendants submitted the declaration of Edward Sweeney, a purported corrections expert. (Doc. 41-4.) Though the declaration is cumulative of Defendants’ other evidence and plays a minimal role in Defendants’ response, Plaintiffs object to Sweeney’s declaration for two principal reasons. First, the declaration does not contain proper expert opinions based on his expertise and experience, but instead consists largely of factual recitations (see, e.g., id. ¶¶ 11-16, 18-20, 23-26, 42-44) legal conclusions (see, e.g., id. ¶¶ 7-8, 10), and impermissible personal opinions and arguments about such matters as the true nature of “justice” (id. ¶¶ 27-31) and the appropriateness of “a federal injunction” (id. ¶ 35). Courts generally hold this kind of expert testimony improper. See, e.g., U.S. v. Frazier, 387 F.3d 1244, 1262-63 (11th Cir. 2004) (noting expert testimony generally unhelpful when it consists of “what lawyers for the parties can argue in closing arguments”); Montgomery v. Aetna Casualty & Surety Co., 898 F.2d 1537, 1541 (11th Cir. 1990) (holding expert “may not testify to the legal implications of conduct”); Zurich Am. Ins. Co. v. Hardin, No. 1:16-CV-2312, 2018 WL 5270356, at *3 (N.D. Ga. Mar. 14, 2018) (noting “an expert must conduct an independent analysis when reviewing records” and “may not simply recite a witnesses’ testimony about the facts . . . and refashion it as an expert opinion”). Second, Sweeney’s opinions are not reliable because his declaration provides no indication about “how [his] experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” See Addison v. Arnett, No. 2:13CV-71, 2016 WL 1441803, at *4 (S.D. Ga. Apr. 22, 2016) (citation omitted); see id.
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ARGUMENT I. Plaintiffs Are Likely to Succeed on the Merits.
A. Plaintiffs Are Likely to Succeed on Their Deliberate Indifference Claims.
COVID-19 presents an objectively serious risk to detainees. See Swain v. Junior, 961 F.3d 1276, 1285 (11th Cir. 2020). (Fefferman Decl. ¶¶ 9-10; Rottnek Decl. ¶¶ 25-27, 43-44.) Defendants are aware of that risk but have failed to take reasonable steps to mitigate it. As discussed above, Defendants regularly deny detainees access to testing, leave detainees known to be sick with COVID-19 symptoms in their cells, fail to supply masks to all detainees, and deprive detainees of adequate cleaning and hygiene supplies. These failures unreasonably expose detainees to a serious risk of harm.
Defendants do not dispute that the risk of harm is serious10 or that they are
(“The lack of analysis in [expert’s] report leads the Court to surmise that his conclusion that Defendants ‘acted properly and exercised sound correctional judgment’ is merely a personal opinion.”). 10 To the extent Defendants argue that COVID-19 does not pose “a substantial risk of serious harm” to the plaintiff class, they are incorrect. See Swain, 961 F.3d at 1285 (“Here, the defendants seem to agree—wisely, we think—that the risk of COVID-19 satisfies this requirement.”); cf. Helling v. McKinney, 509 U.S. 25, 33, 35 (1993) (holding that “exposure of inmates to a serious, communicable disease” that poses a risk of future harm is a sufficiently serious deprivation to invoke constitutional protections).
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aware of the obvious risk.11 They instead claim that they have addressed the known risk by adopting a laundry list of “extraordinary” measures.12 (Doc. 41 at 22.) As discussed above, however, many of those measures are not in place at the Jail, as reflected in sworn statements of numerous current and former detainees.
The policies Defendants reference in their brief exist in word only and in some cases are easily disproven by a YouTube search. (Ex. D.) At a minimum, Defendants clearly “could have, but did not, take steps to minimize” the risk to detainees. LaMarca v. Turner, 995 F.2d 1526, 1537 (11th Cir. 1993). Even if Defendants took some responsive action, they disregarded and continue to disregard simple steps to prevent and mitigate the virus.13 See Hale v. Tallapoosa Cty., 50 F.3d 1579, 1584 (11th Cir. 1995) (holding sheriff, despite taking some steps, could be deliberately indifferent for disregarding “‘alternative means’ or interim measures
11 See Farmer v. Brennan, 511 U.S. 825, 842 (1994) (“[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”). 12 Despite Defendants’ assertion that their actions were “prompt” (Doc. 41 at 1, 22), the attached declarations are notable for the absence of dates on which these measures allegedly went into place (Doc. 41-1). 13 The differences between Swain v. Junior, 961 F.3d 1276 (11th Cir. 2020), and this case are striking. In Swain, the jailers’ efforts included purchasing air purifiers, installing industrial-grade sanitization equipment for disinfecting common areas, conducting twice-daily temperature checks of detainees, releasing nearly 900 detainees, providing sufficient hygiene products, and other measures. Id. Defendants’ efforts are nothing like those deemed sufficient in Swain.
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for reducing the risk”).14 For example, Defendants do not promptly test, quarantine,
or provide medical attention to individuals who report COVID-19 symptoms. See
Mandel v. Doe, 888 F.2d 783, 788 (11th Cir. 1989) (holding “intentional refusal to
provide [medical] care” is deliberate indifference). Defendants even refuse to
follow their own medical director’s “highly suggested” recommendation that they
test all new arrivals to the Jail. (Ex. C.) These and numerous other failures to act
are objectively unreasonable and constitute deliberate indifference,15 particularly in
the context of Defendants’ actions prior to this lawsuit. LaMarca, 995 F.2d at 1542
14 Defendants erroneously argue that a “complete denial of [medical] treatment’ is the only basis for establishing deliberate indifference. (Doc. 41, at 22-23 & n.14.) As suggested above, however, jailers cannot disregard reasonable measures to reduce a risk of serious harm to detainees. Accordingly, “a decision to take an easier but less efficacious course of [medical] treatment” can support a deliberate indifference claim. Dimanche v. Brown, 783 F.3d 1204, 1215 (11th Cir. 2015) (quoting McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)). 15 See, e.g., Carranza v. Reams, No. 20-CV-00977, 2020 WL 2320174, at *10 (D. Colo. May 11, 2020) (jail detainees had shown a substantial likelihood of success despite defendants having implemented several important and proactive steps to address the spread of COVID-19); Criswell v. Boudreaux, No. 120-CV-01048, 2020 WL 5235675, at *6 (E.D. Cal. Sept. 2, 2020) (same); Gray v. Cty. of Riverside, No. 5:13-CV-0444, 2020 WL 4243484, at *4 (C.D. Cal. Apr. 14, 2020) (same); Banks v. Booth, No. CV 20-849, 2020 WL 1914896, at *11 (D.D.C. Apr. 19, 2020) (same). Defendants’ contrary authority generally involves substantial proactive measures not in place at the Jail, either on paper or in practice. See, e.g., Sanchez v. Brown, No. 3:20-CV-00832, 2020 WL 2615931, at *7 (N.D. Tex. May 22, 2020) (use of outside cleaners instead of trustees to professionally clean potentially infected areas); Money v. Pritzker, No. 20-CV-2093, 2020 WL 1820660, at *5 (N.D. Ill. Apr. 10, 2020) (substantial reduction of detainee population).
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(holding an “institution’s historical indifference” is relevant in assessing deliberate indifference). Plaintiffs have presented substantial evidence that Defendants knew of and disregarded harmful jail conditions for months (Doc. 19-6; Doc. 19-11); that Defendants failed to broadly issue masks until at least three months into the pandemic (Doc. 19-1 at 32; J.H. Decl. ¶ 26; G.R. Decl. ¶ 5); that Defendants cannot be trusted to implement their own policies (see Ex. B, Declarations of Thirteen Detainees); and that most of the meager changes Defendants have made only occurred after the lawsuit was filed (D.H. ¶ 36; G.R. Decl. ¶ 5; J.L. Decl. ¶ 7).
Finally, even if (contrary to the weight of the evidence) Defendants had implemented the policy changes they allege, Plaintiffs would still be entitled to injunctive relief because a defendant’s “voluntary cessation of challenged conduct does not ordinarily render a case moot.” Knox v. Serv. Employees Int’l Union, 567 U.S. 298, 307 (2012). To establish mootness, Defendants would have the “heavy burden” of showing that conditions in the Jail would not revert to what they were before this case was filed. Rich v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 525, 532 (11th Cir. 2013). Here, Defendants have not demonstrated an unambiguous break from their old policies, nor have they shown that any policy changes resulted from substantial deliberation and have been followed consistently. See id. Thus, injunctive relief is warranted regardless of Defendants’ alleged policy changes.
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In sum, Plaintiffs are likely to succeed on the merits of their deliberate
indifference claim.16
B. Plaintiffs Are Likely to Succeed on Their Habeas Corpus Claims.
Defendants argue that habeas is unavailable in this case “for several reasons”
raised in their motion to dismiss.17 (Doc. 41 at 28.) Accordingly, Plaintiffs
incorporate by reference the pertinent section of their response to the motion to
dismiss. (Doc. 37 at 40-43.)18
16 In a footnote, Defendants contend that “the decisional law applicable to prison inmates applies equally to pretrial detainees.” (Doc. 41 at 17 n.12.) They are incorrect. The Eleventh Circuit has declined to resolve whether, after Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), liability for the unconstitutional treatment of pretrial detainees continues to require a showing of subjective deliberate indifference. Dang ex rel. Dang v. Sheriff, Seminole Cty., Fla., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017) (“We cannot and need not reach this question.”). The logic of Kingsley—that unreasonable results of intentional acts constitute punishment— applies equally to jail-conditions cases. 17 Contrary to Defendants’ claim that habeas corpus relief is not available, several courts have left open the availability of habeas corpus relief under the unique circumstances presented in this case. See, e.g., A.S.M. v. Donahue, No. 7:20-cv-62, 2020 WL 1847158, at *1 (M.D. Ga. Apr. 10, 2020); Gayle v. Meade, No. 20-CV21553, 2020 WL 1949737, at *26 (S.D. Fla. Apr. 22, 2020). 18 Defendants also argue that release is unavailable because Plaintiffs’ rights are not being violated (Doc. 41 at 25-26), and that “federalism concerns” and the “public interest” weigh against release (id. at 26). As discussed in this brief, Plaintiffs have established likely violations of their rights and releasing certain detainees will promote rather than harm the public interest.
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C. Plaintiffs Are Likely to Succeed on Their ADA and RA Claims. Contrary to Defendants’ argument (Doc. 41 at 27), a disability discrimination claim under the ADA and/or the Rehabilitation Act can be based on either a conventional disparate treatment theory, or a theory that the defendant failed to make reasonable accommodations, or both. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1212 n.6 (11th Cir. 2008). Here, Plaintiffs allege that Defendants failed to carry out their “affirmative duty to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified [person].” Nadler v. Harvey, No. 06-12692, 2007 WL 2404705, at *4 (11th Cir. Aug. 24, 2007). This “affirmative duty” includes making reasonable modifications to ensure people with disabilities19 have equal access to the services, programs, and activities of the jail, including safe housing, safe access to medical care, and safe adjudication of their criminal cases. 28 C.F.R. §§ 35.130(a), (b)(2,), (b)(7)(i); see Fraihat v. U.S. Immigration & Customs Enf’t, 445 F. Supp. 3d 709, 748 (C.D. Cal. 2020) (disabled people in ICE detention entitled to reasonable accommodations in order to participate in the “programmatic ‘benefit’” of the removal process). Because it is an affirmative duty, Defendants’
19 Disability Subclass representatives are all people with disabilities protected under the ADA and Rehabilitation Act. Each has one or more conditions that “substantially impair” a “major life activity” or “major bodily function” as the ADA and Rehabilitation Act require. 28 C.F.R. § 35.108.
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suggestion that they only need to provide accommodations when explicitly requested must be rejected. See Nattiel v. Fla. Dep’t of Corr., No. 1:15-CV-150, 2017 WL 5774143, at *1 (N.D. Fla. Nov. 28, 2017) (prison officials were aware of plaintiff’s disabilities and therefore had a “duty to accommodate” even without a demand for an accommodation); Pierce, 128 F. Supp. 3d at 269 (finding “untenable” the argument that “prison officials have no legal obligation to provide accommodations for disabled inmates unless the inmate specifically requests such aid”). Thus, Plaintiffs are likely to succeed on their ADA and Rehabilitation Act claims.20 II. Plaintiffs Will Suffer Irreparable Injury Absent an Injunction.
The irreparable injury inquiry turns not on whether COVID-19 poses a danger, which “it undoubtedly does.” Swain, 961 F.3d at 1292. Rather, the inquiry is whether Plaintiffs face a risk of irreparable harm absent an injunction. Id. at 1293.
20 Plaintiffs will respond by September 30 to the Non-Final Report and Recommendation dismissing these claims. (Doc. 52.) The principal ground for the recommended dismissal is that Plaintiffs failed to show disparate treatment and that detainees with disabilities failed to request an accommodation. (Doc. 52 at 35-6.) These conclusions are inconsistent with settled law. See, e.g., Schwarz, 544 F.3d at 1212 n.6; Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1262 (11th Cir. 2007) (explaining that a public entity is not insulated from liability under the ADA by treating disabled people exactly the same as non-disabled people because “uniformly-applied, disability-neutral policies . . . would utterly eviscerate [the] ADA requirement [of reasonable accommodations]”); Todd v. Carstarphen, 236 F. Supp. 3d 1311, 1328 n 33. (N.D. Ga. 2017) (recognizing that a specific demand for an accommodation is unnecessary where the need for one is obvious).
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Here, they undoubtedly do because Defendants’ pandemic response has been, and
remains, insufficient and unreasonable.
• Defendants regularly leave symptomatic people in overcrowded cells, where sick people infect others. (See Part A.1. supra.)
• Defendants fail to provide tests to people who show COVID-19 symptoms. (See Part A.2. supra.)
• Six months into the pandemic, Defendants still fail consistently to provide detainees with facemasks and have no functioning system to replace and clean them. (See Part A.3.a. supra; L.P. Decl. ¶ 4; F.B. Decl. ¶ 4.)
• Defendants have failed to provide even minimally adequate cleaning supplies, such that detainees resort to using scraps of toilet paper, blankets, and their personal allotment of body soap to clean their cells. (See Part A.3.b-c. supra; Singleton Decl. ¶¶ 3, 6; M.B. Decl. ¶ 10; R.L. Decl. ¶ 19.)
• Defendants have failed even to provide detainees with utensils for eating, such that detainees resort to the unsanitary practice of eating foods like rice, noodles, or eggs with their hands. (A.J.W. Decl. ¶ 8; G.W. Decl. ¶ 10.)
• Defendants require detainees to congregate in close proximity during meal distribution, pill call, and video court. (See Part A.4. supra.) Social distancing protocols are still not enforced (see id.), and recent video evidence shows detained people crammed together in crowded hallways (Ex. D).21
21 Though not directly relevant to the COVID-19 response, Defendants have failed to provide minimally adequate hygiene supplies, such that, for extended periods, detained people lack basic items like toothbrushes (A.J.W. Decl. ¶ 9) (“I was unable to brush my teeth for a week.”), and feminine hygiene products (F.S. Decl. ¶ 15) (stating that she resorted to using a spare sheet as a sanitary napkin).
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Defendants’ insufficient response endangers all detainees, cf. Swain, 961 F.3d at 1293, but particularly those with health conditions that make them vulnerable to serious illness from COVID-19.22 Absent an injunction, there is an imminent risk that more people will become infected. Some may suffer permanent injury or die.
If Defendants’ real-life mitigation plan mirrored that described in Defendants’ legal briefs, and if there were a basis for believing Defendants would consistently follow those policies going forward, an injunction might be unnecessary. But detainees credibly report that those policies are not being followed, and Defendants’ misrepresentations regarding the existence of an outbreak (Doc. 19-1 at 15) and misleading description of jail conditions undermine their claim that sufficient mitigation strategies are in place.
Defendants claim that there is no irreparable injury because the named Plaintiffs have not been infected. (Doc. 41 at 33.) Even if that were true (it is not),23 Plaintiffs need only show that they face an “actual and imminent” risk of becoming infected absent an injunction. Swain, 961 F.3d at 1292. They have met this burden.24
22 See, e.g., Supp. Watkins Decl. ¶¶ 2-3 (stating that he is 61 and has diabetes); M.B. Decl. ¶¶ 2, 12 (stating she is 52 and received chemotherapy for breast cancer); J.H. Decl. ¶¶ 2, 6 (stating that he is 51 and has hypertension). 23 Three of the named Plaintiffs experienced COVID-19-like symptoms but were not tested. (Watkins Decl. ¶¶ 37-41; Singleton Decl. ¶ 10; Mitchell Decl. ¶¶ 13-14.) 24 Swain does not compel a contrary result. In Swain, a district court’s irreparable-
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III. The Balance of Harms Favors Plaintiffs. COVID-19 “unquestionably poses a serious threat” to jail detainees. Swain,
961 F.3d at 1293. That risk is heightened for people in the Clayton County Jail. Due to Defendants’ unreasonable acts and omissions, Plaintiffs and the nearly 2,000 putative class members are at risk of contracting COVID-19 and experiencing preventable serious illness and death on a massive scale. As a result, Defendants are violating Plaintiffs’ federal rights, and “[c]ourts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.” Brown v. Plata, 563 U.S. 493, 511 (2011).
In contrast to the serious threat to detainees, an injunction would pose no undue burden on Defendants’ legitimate interests. The proposed injunction (Doc. 19-15) would leave Defendants with responsibility for formulating “reasonably specific and detailed written plans” in the first instance (id. ¶ 1).25 Similarly, the
harm analysis was flawed because the court “opted not to resolve” certain factual disputes regarding defendants’ alleged protective measures. Swain, 961 F.3d at 1293. Here, there is substantial evidence in the record regarding the inadequacy of Defendants’ COVID-19 response, much of it undisputed, whereas Defendants’ submissions are unpersuasive and, in some instances, demonstrably false. 25 See Thomas v. Bryant, 614 F.3d 1288, 1323 (11th Cir. 2010) (approving of seeking proposed remedial plans from prison officials before entering injunction); LaMarca, 995 F.2d at 1543 (approving of injunction terms “to ensure that [certain] specific policies were carried out [by prison staff]” as opposed to “the methods by which [prison officials] effectuated these policies”).
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proposed order would not necessarily result in release of detainees but would require only preliminary steps to “aid the Court’s evaluation of whether release and/or enlargement is appropriate” (id. ¶¶ 6, 8-9) and a plan by Defendants to review (but not necessarily discharge) detainees eligible for discretionary release (id. ¶ 7).
Defendants argue that an injunction would interfere with the Sheriff’s “flexibility” by “order[ing] the Sheriff to conform to standards on the day of entry” of the injunction. (Doc. 41 at 36.) As noted above, however, the proposed preliminary injunction allows Defendants to identify areas in which flexibility is needed.26 Thus, an injunction will not improperly restrain Defendants’ flexibility but will merely keep it within constitutional bounds. Plata, 653 U.S. at 511 (“If government fails to fulfill this obligation [to provide for prisoners’ basic needs], the courts have a responsibility to remedy the resulting Eighth Amendment violation.”). IV. An Injunction Will Serve the Public Interest.
It is well established that “the public interest is served when constitutional rights are protected.” Jones v. Governor, 950 F.3d 795, 830 (11th Cir. 2020)
26 Similarly, if an unforeseen problem arises after an injunction issues, the “settled rule” is that “district courts retain power to modify injunctions in light of changed circumstances.” Dombrowski v. Pfister, 380 U.S. 479, 492 (1965); see Plata, 563 U.S. at 542 (stating in prison-conditions case that district courts should “remain open to a showing or demonstration by either party that the injunction should be altered”).
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(quoting Democratic Exec. Comm. v. Lee, 915 F.3d 1312, 1327 (11th Cir. 2019)). That rule applies with particular force here, as “the integrity of the criminal justice system depends on full compliance” with the proscription against cruel and unusual conditions of confinement. Johnson v. California, 543 U.S. 499, 511 (2005).
Defendants argue that a preliminary injunction would disserve the public interest because it would require “immediate release” of detainees, certain detainees may not “be able to protect themselves any better” outside of the Jail, and releasing detainees would allegedly pose a “risk of danger to the public” because they have “committed or allegedly committed a myriad of crimes.” (Doc. 41 at 37-38.) Plaintiffs’ proposed injunction does not ask for “immediate release,” but provides for release “where appropriate” and only if Defendants fail to “ensure that each detainee no longer faces an unreasonable risk of injury or death.” (Doc. 19-15 ¶ 5.) In all events, releasing detainees will not harm the public interest.27 Defendants’ suggestion that detainees may not be able to “provide for their food and medical care needs” or “protect themselves any better” from COVID-19 (Doc. 41 at 37) are
27 See, e.g., Savino v. Souza, No. 20-CV-10617, 2020 WL 2404923, at *1 (D. Mass May 12, 2020) (“[T]his injunction does not prohibit the government’s (and the public’s) [interest in] confining those who are dangerous or flight risks. Yet, to the extent it reduces the risk of an uncontainable outbreak in the facility, the injunction secures the safety of the detainees, the guards and other staff, their families, and ultimately the public at large.”).
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wholly speculative, and are factors that the Court could consider in determining whether to release a particular detainee. Irrespective of whatever hardships detainees might face in the community, they would not be confined to a mismanaged “incubator[] for the coronavirus.” (Rottnek Decl. ¶ 15.) Coreas v. Bounds, No. 20CV-780, 2020 WL 1663133, at *6 (D. Md. Apr. 3, 2020) (noting “the absurdity of the claim that someone will be safer from a contagious disease while confined in close quarters with dozens of other detainees and staff than while at liberty”).
With respect to public-safety concerns, the proposed order provides for identifying detainees deemed “unsuitable for release under any circumstances.” (Doc. 19-15 ¶¶ 8-9.) If the Court finds it necessary to order the release of certain detainees, it may consider public-safety concerns when making individualized release decisions. Thus, a preliminary injunction would not harm the public interest.
CONCLUSION The Court should grant Plaintiffs’ motion for a preliminary injunction.
Respectfully submitted,

Kosha S. Tucker Ga. Bar No. 214335 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA P.O. Box 77208 Atlanta, GA 30357

/s/ Jeremy Cutting Sarah Geraghty Ga. Bar No. 291393 Jeremy Cutting Ga. Bar No. 947729 Ryan Primerano Ga. Bar No. 404962

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(678) 981-5295 ktucker@acluga.org
Stephen L. Pevar AMERICAN CIVIL LIBERTIES UNION FOUNDATION 765 Asylum Avenue Hartford, Connecticut 06105 (860) 570-9830 spevar@aclu.org
David C. Fathi AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 Fifteenth Street, N.W., Seventh Floor Washington, DC 20005 (202) 548-6603 dfathi@aclu.org

SOUTHERN CENTER FOR HUMAN RIGHTS 60 Walton Street, N.W. Atlanta, GA 30303 (404) 688-1202 sgeraghty@schr.org
Brandon Buskey AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004 (212) 284-7364 bbuskey@aclu.org

Counsel for Plaintiffs

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CERTIFICATE OF COMPLIANCE I certify that this document has been prepared in compliance with Local Rule 5.1C using 14-point Times New Roman font.
/s/ Jeremy Cutting September 24, 2020

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CERTIFICATE OF SERVICE I certify that I filed the foregoing using the Court’s CM/ECF system, which will send notification of filing to all counsel of record.
/s/ Jeremy Cutting September 24, 2020