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United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:20-cv-10753-LTS

CLOSED,HABEAS

Baez et al v. McDonald et al Assigned to: District Judge Leo T. Sorokin Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 04/17/2020 Date Terminated: 10/08/2020 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: Federal Question

Petitioner
Anthony Baez on behalf of himself and all others similarly situated

represented by Adam W. McCall Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, MA 02109 (617) 526-6839 Email: adam.mccall@wilmerhale.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David E. Rudin Wilmer Cutler Pickering Hale and Dorr LLP 250 Greenwich Street New York, NY 10007 (212) 937-7249 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel J. Cloherty Todd & Weld One Federal Street 27th Floor Boston, MA 02110 617-720-2626 Email: dcloherty@toddweld.com ATTORNEY TO BE NOTICED

Emily R. Schulman Wilmer Hale LLP 60 State Street Boston, MA 02109 617-526-6077 Fax: 617-526-5000 Email: emily.schulman@wilmerhale.com ATTORNEY TO BE NOTICED

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Petitioner
Jonathan Bermudez on behalf of himself and all others similarly situated

Saraa Basaria Todd & Weld One Federal Street 27th Floor Boston, MA 02110 617-720-2626 Fax: 617-227-5777 Email: sbasaria@toddweld.com ATTORNEY TO BE NOTICED
represented by Adam W. McCall (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David E. Rudin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel J. Cloherty (See above for address) ATTORNEY TO BE NOTICED

Emily R. Schulman (See above for address) ATTORNEY TO BE NOTICED

Petitioner
Jermaine Gonsalves on behalf of himself and all others similarly situated

Saraa Basaria (See above for address) ATTORNEY TO BE NOTICED
represented by Adam W. McCall (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David E. Rudin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel J. Cloherty (See above for address) ATTORNEY TO BE NOTICED

Emily R. Schulman

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(See above for address) ATTORNEY TO BE NOTICED

Petitioner
Dedrick Lindsey on behalf of himself and all others similarly situated

Saraa Basaria (See above for address) ATTORNEY TO BE NOTICED
represented by Adam W. McCall (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David E. Rudin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel J. Cloherty (See above for address) ATTORNEY TO BE NOTICED

Emily R. Schulman (See above for address) ATTORNEY TO BE NOTICED

Saraa Basaria (See above for address) ATTORNEY TO BE NOTICED

V.
Respondent
Joseph D. McDonald, Jr. Sheriff of Plymouth County, in his ofﬁcial capacity
Respondent
Antone Moniz Superintendent of the Plymouth County Correctional Facility, in his ofﬁcial capacity

represented by Jason C. Weida US Attorney's Ofﬁce - MA J. Joseph Moakley U.S. Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 617-748-3100 Email: jason.weida@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Goldstein United States Attorney's Ofﬁce MA

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1 Courthouse Way Suite 9200 Boston, MA 02210 (617) 748-3242 Email: rachel.goldstein@usdoj.gov ATTORNEY TO BE NOTICED

Respondent
John and Jane Does in their individual and ofﬁcial capacities

Date Filed 04/17/2020
04/17/2020 04/17/2020 04/17/2020
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# Docket Text
1 PETITION for Writ of Habeas Corpus (2241) Filing fee: $ 5, receipt number 01018201754 Fee status: Filing Fee paid., ﬁled by JONATHAN BERMUDEZ, Anthony Baez, Jermaine Gonsalves, Dedrick Lindsey. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Civil Cover Sheet, # 14 Civil Cover Sheet)(Cloherty, Daniel). Modiﬁed on 4/17/2020: All documents replaced with ﬂattened PDF documents. (Kelly, Danielle). (Entered: 04/17/2020)
2 NOTICE of Appearance by Saraa Basaria on behalf of Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey (Basaria, Saraa) (Entered: 04/17/2020)
3 NOTICE of Appearance by Emily R. Schulman on behalf of Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey (Schulman, Emily) (Entered: 04/17/2020)
4 ELECTRONIC NOTICE of Case Assignment. District Judge Leo T. Sorokin assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Donald L. Cabell. (Finn, Mary) (Entered: 04/17/2020)
5 District Judge Leo T. Sorokin: ORDER entered. SERVICE ORDER re 2241 Petition.. (PSSA, 5) (Entered: 04/17/2020)
6 MOTION to Certify Class by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey.(Cloherty, Daniel) (Entered: 04/17/2020)
7 MEMORANDUM in Support re 6 MOTION to Certify Class ﬁled by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey. (Cloherty, Daniel) (Entered: 04/17/2020)
8 MOTION for Leave to File Excess Pages (Unopposed) by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey.(Schulman, Emily) (Entered: 04/17/2020)
9 Emergency MOTION for Preliminary Injunction , Emergency MOTION for Temporary Restraining Order ( Responses due by 5/1/2020) by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey.(Schulman, Emily) (Entered: 04/17/2020)
10 MEMORANDUM in Support re 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order ﬁled by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey. (Schulman, Emily) (Entered: 04/17/2020)

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11 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered. re 6 MOTION to Certify Class ﬁled by Anthony Baez, Dedrick Lindsey, Jonathan Bermudez, Jermaine Gonsalves, 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order ﬁled by Anthony Baez, Dedrick Lindsey, Jonathan Bermudez, Jermaine Gonsalves. "Respondent shall by 12:00 noon on April 21, 2020 ﬁle a response to the motion to certify class (ECF No. 6 ) and emergency motion for temporary restraining order and preliminary injunctive relief (ECF No. 9 )."(PSSA, 5) (Entered: 04/17/2020)
12 Reset Deadlines as to 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order , 6 MOTION to Certify Class . Responses due by 4/21/2020 (Montes, Mariliz) (Entered: 04/17/2020)
13 NOTICE of Appearance by Jason C. Weida on behalf of Antone Moniz (Weida, Jason) (Entered: 04/19/2020)
14 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of David E. Rudin and Adam W. McCall Filing fee: $ 200, receipt number 0101-8203557 by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey.(Schulman, Emily) (Entered: 04/20/2020)
15 Emergency MOTION to Stay re 6 MOTION to Certify Class by Antone Moniz.(Weida, Jason) (Entered: 04/20/2020)
16 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered temporarily granting 15 Motion to Stay response to the motion for class certiﬁcation. The Court will further
address this motion after reviewing the ﬁlings tomorrow and possibly further written submissions or oral statements by counsel. (Sorokin, Leo) (Entered: 04/20/2020)
17 Assented to MOTION for Leave to File Excess Pages for Memoranda of Law Being Filed by Noon Today by Antone Moniz.(Weida, Jason) (Entered: 04/21/2020)
18 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 17 Respondents' Assented-To Motion for Leave to File Excess Pages to Memorandum in Support of Motion to Dismiss ; Counsel using the Electronic Case Filing System should now ﬁle the document for which leave to ﬁle has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to ﬁle granted on (date of order)- in the caption of the document. (Montes, Mariliz) (Entered: 04/21/2020)
19 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 14 Motion for Leave to Appear Pro Hac Vice Added David E. Rudin and Adam W. McCall. Attorneys admitted Pro Hac Vice must register for electronic ﬁling if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Montes, Mariliz) (Entered: 04/21/2020)
20 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 8 Petitioner's Motion for Leave to File Excess Pages to Memorandum in Support of their Application for an 9 Emergency Temporary Restraining Order and Preliminary Injunctive Relief; Counsel using the Electronic Case Filing System should now ﬁle the document for which leave to ﬁle has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to ﬁle granted on (date of order)- in the caption of the document. (Montes, Mariliz) (Entered: 04/21/2020)
21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim by Antone Moniz.(Weida, Jason) (Entered: 04/21/2020)
22 MEMORANDUM in Support re 21 MOTION to Dismiss for Lack of Jurisdiction and

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for Failure to State a Claim ﬁled by Antone Moniz. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Weida, Jason) (Additional attachment(s) added on 4/21/2020: # 7 Exhibit E (ﬁled under seal)) (Montes, Mariliz). (Entered: 04/21/2020)
23 MEMORANDUM in Opposition re 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order ﬁled by Antone Moniz. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Weida, Jason) (Additional attachment(s) added on 4/21/2020: # 6 Exhibit E (ﬁled under seal)) (Montes, Mariliz). (Entered: 04/21/2020)
24 Assented to MOTION to Seal Document Exhibit E in Respondent's Two Filings by Antone Moniz.(Weida, Jason) (Entered: 04/21/2020)
25 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 04/21/2020)
26 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 24 Motion to Seal Document (Exhibit E in Respondent's Two Filings) (Montes, Mariliz) (Entered: 04/21/2020)
27 District Judge Leo T. Sorokin: ORDER entered.
The Respondent shall supplement his opposition to the pending Application for an Emergency Temporary Restraining Order and Motion for Preliminary Injunction by submitting to the Court the following information by noon on Friday, April 24, 2020.
The Petitioners shall respond to the Respondents Motion to Dismiss by the close of business on Friday, April 24, 2020.
The Petitioners may ﬁle a reply in further support of their application for injunctiverelief, limited to ﬁve pages in length, by the close of business on Monday, April 27, 2020.
The Respondent may ﬁle a reply in further support of his Motion to Dismiss, also limited to ﬁve pages in length, by the close of business on Tuesday, April 28, 2020.
The Court will hold a hearing on the Petitioner's Application (Doc. No. 9) and the Respondent's Motion (Doc. No. 21) at 2:00 PM on Thursday, April 30, 2020. The hearing will be by video. The Deputy Clerk will provide Zoom information to the parties and others pursuant to the Court's public access protocol.
re 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim ﬁled by Antone Moniz 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order .( Motion Hearing set for 4/30/2020 02:00 PM in Courtroom 13 before District Judge Leo T. Sorokin.)(Simeone, Maria) (Entered: 04/21/2020)
28 Set Deadlines as to 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. Petitioner's Responses due by 4/24/2020; Respondent's Replies due by 4/28/2020. (Montes, Mariliz) (Entered: 04/21/2020)
29 Set Deadlines: Respondents' supplemental response to 9 Emergency MOTION for Preliminary Injunction, Emergency MOTION for Temporary Restraining Order due by noon on 4/24/2020).
Set Deadlines as to 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order : Petitioner's Reply due by 4/27/2020.

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(Montes, Mariliz) (Entered: 04/21/2020) 30 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered.

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The Court will conduct the hearing on April 30, 2020 from the courtroom by video. The Court anticipates that counsel will participate by video. Members of the public and the media may make arrangements with the clerk to listen to the hearing remotely or they may appear in the courtroom. However, the available video capacity at Plymouth on the day in question is already reserved for criminal cases which take precedence. Accordingly, the four individual plaintiffs will not be able to observe or to listen to the hearing.(Montes, Mariliz) (Entered: 04/23/2020)
31 Respondent's Supplement to his opposition to 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order Supplement to Respondent's Opposition ﬁled by Antone Moniz. (Attachments: # 1 Declaration of Sheriff McDonald, # 2 Attachments to Paragraph 2 to Sheriff McDonald's Declaration (Under Seal and Conﬁdential), # 3 Attachments to Paragraph 3 to Sheriff McDonald's Declaration (Under Seal and Conﬁdential), # 4 Attachments to Paragraph 5 to Sheriff McDonald's Declaration, # 5 Declaration of Marcia Norat, RN) (Weida, Jason) (Additional attachment(s) added on 4/24/2020: # 6 Attachment to Paragraph 2 of the Sheriff's Declaration(ﬁled under seal), # 7 Attachment to paragraph 3 of the sheriff's declaration (ﬁled under seal)) (Montes, Mariliz). Modiﬁed on 4/24/2020 (Montes, Mariliz). (Entered: 04/24/2020)
32 Assented to MOTION to Seal Document Attachments to Paragraph 2 and Paragraph 3 to Sheriff's McDonald's Declaration, dated April 24, 2020 by Antone Moniz.(Weida, Jason) (Entered: 04/24/2020)
33 Assented to MOTION for Protective Order Regarding the Attachments to Paragraph 2 and Paragraph 3 of Sheriff McDonald's Declaration by Antone Moniz. (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 04/24/2020)
34 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered.

04/24/2020 04/24/2020 04/24/2020 04/24/2020 04/24/2020

Yesterday, the Court received a pro se letter from Johan Abreau who the Court recently sentenced. Mr. Abreau was detained at Plymouth and, according to his letter, remains there. A portion of the letter reports information about hygiene, cleaning and coronavirus at Plymouth. 18cr10348, Doc. No. 408 at 3. Because the Court is aware of this report, the Court brings it to the attention of the parties so they may address it or not as they see ﬁt. (Montes, Mariliz) (Entered: 04/24/2020)
35 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 32 Respondents' Assented-To Motion to Seal Two Exhibits (Montes, Mariliz) (Entered: 04/24/2020)
36 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 33 Respondents' Assented-To Motion for Protective Order (Montes, Mariliz) (Entered: 04/24/2020)
37 Assented to MOTION for Leave to File Excess Pages by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey.(Schulman, Emily) (Entered: 04/24/2020)
38 MEMORANDUM in Opposition re 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim ﬁled by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey. (Schulman, Emily) (Entered: 04/24/2020)
39 Second MOTION to Dismiss for Lack of Jurisdiction by Antone Moniz.(Weida, Jason)

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40 MEMORANDUM in Support re 39 Second MOTION to Dismiss for Lack of Jurisdiction ﬁled by Antone Moniz. (Weida, Jason) (Entered: 04/24/2020)
41 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered. The petitioners shall respond to the 39 Second MOTION to Dismiss for Lack of Jurisdiction ﬁled by Antone Moniz by the close of business on Tuesday, April 28, 2020.(LTS, law2) (Entered: 04/25/2020)
42 Set/Reset Deadlines as to 39 Second MOTION to Dismiss for Lack of Jurisdiction . Responses due by 4/28/2020 (LTS, law2) (Entered: 04/25/2020)
43 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 37 Petitioners' Motion for Leave to File Excess Pages to Memorandum of Law in Opposition to Respondent's Motion to Deny Petitioners Habeas Petition ; Counsel using the Electronic Case Filing System should now ﬁle the document for which leave to ﬁle has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to ﬁle granted on (date of order)- in the caption of the document. (Montes, Mariliz) (Entered: 04/27/2020)
44 ELECTRONIC NOTICE Setting Hearing on Motion.

A Motion Hearing has been set for 4/30/2020 02:00 PM in Courtroom 13 before District Judge Leo T. Sorokin re: 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order , 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim, 39 Second MOTION to Dismiss for Lack of Jurisdiction :

This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the sessions courtroom deputy as soon as possible.

Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: https://forms.mad.uscourts.gov/courtlist.html.

For questi ons regarding access to hearings, you may refer to the Courts general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.

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Motion Hearing set for 4/30/2020 02:00 PM in Courtroom 13 before District Judge Leo T. Sorokin. (Simeone, Maria) (Entered: 04/27/2020)
45 REPLY to Response to 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order ﬁled by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey. (Cloherty, Daniel) (Entered: 04/27/2020)
46 MEMORANDUM in Opposition re 39 Second MOTION to Dismiss for Lack of Jurisdiction ﬁled by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey. (Schulman, Emily) (Entered: 04/28/2020)
47 REPLY to Response to 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim ﬁled by Antone Moniz. (Weida, Jason) (Entered: 04/28/2020)
48 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 04/29/2020)

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49 STATUS REPORT Updated by Antone Moniz. (Weida, Jason) (Additional attachment(s) added on 4/30/2020: # 1 unredacted version) (Montes, Mariliz). (Main Document 49 replaced on 5/4/2020) (Montes, Mariliz). Modiﬁed on 5/4/2020 to replace updated status report with version provided by counsel on 5/4/2020; NEF Regenerated (Montes, Mariliz). (Entered: 04/30/2020)
50 Electronic Clerk's Notes for proceedings held before District Judge Leo T. Sorokin: Motion Hearing held on 4/30/2020

The court hears oral argument of counsel re 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim ﬁled by Antone Moniz, 39 Second MOTION to Dismiss for Lack of Jurisdiction ﬁled by Antone Moniz, 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order ﬁled by Anthony Baez, Dedrick Lindsey, Jonathan Bermudez, Jermaine Gonsalves and will take this matter under advisement.

(Court Reporter: Rachel Lopez at raeufp@gmail.com.) (Simeone, Maria) (Entered: 04/30/2020)
04/30/2020 51 Power Point Presentation ﬁled by Antone Moniz. (Montes, Mariliz) (Entered: 04/30/2020)
05/01/2020 52 District Judge Leo T. Sorokin: ORDER entered.

Pending before the Court are the petitioners' Application for an Emergency Temporary Restraining Order and Motion for Preliminary Injunction, Doc. No. 9, and the respondent's Motions to Dismiss, Doc. Nos. 21, 39. The Court requires further information in aid of resolving those factual issues. Accordingly, the respondent is hereby ORDERED to provide answers to the following questions by the close of business on Wednesday, May 6, 2020.

( Responses due by 5/6/2020)(Simeone, Maria) (Entered: 05/01/2020)

05/05/2020 53 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 05/05/2020)

05/06/2020

54 RESPONSE TO COURT ORDER by Antone Moniz re 52 Order,,, Set Motion and R&R Deadlines/Hearings,, . (Attachments: # 1 Sheriff McDonald Declaration, # 2 Nurse Norat Declaration)(Weida, Jason) (Entered: 05/06/2020)

05/07/2020

55 Notice of Supplemental Authorities re 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim, 39 Second MOTION to Dismiss for Lack of Jurisdiction , 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Weida, Jason) (Entered: 05/07/2020)

05/07/2020

56 Supplemental MEMORANDUM in Support re 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order ﬁled by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Cloherty, Daniel) (Entered: 05/07/2020)

05/08/2020

57 Supplemental MEMORANDUM in Opposition re 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order ﬁled by Antone Moniz. (Attachments: # 1 Neri Declaration, # 2 Mattivello Declaration, # 3 Banzi Declaration, # 4 DiMarzio Declaration)(Weida, Jason) (Entered: 05/08/2020)

05/09/2020

58 Second Notice of Supplemental Authorities re 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim, 39 Second MOTION to Dismiss for Lack

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59 Third Notice of Supplemental Authorities re 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim, 39 Second MOTION to Dismiss for Lack of Jurisdiction , 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 05/09/2020)
60 Notice of Supplemental Authorities re 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (Schulman, Emily) (Entered: 05/11/2020)
61 NOTICE of Appearance by Rachel Goldstein on behalf of Antone Moniz (Goldstein, Rachel) (Entered: 05/12/2020)
62 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 05/12/2020)
63 Second Notice of Supplemental Authorities re 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A)(Schulman, Emily) (Entered: 05/13/2020)
64 District Judge Leo T. Sorokin: ORDER ON MOTIONS TO DISMISS (DOC. NOS. 21, 39) AND APPLICATION FOR INJUNCTIVE RELIEF (DOC. NO. 9)entered.

For the foregoing reasons, the respondent's motions to dismiss (Doc. Nos. 21 and 39) andthe petitioners' application for emergency injunctive relief (Doc. No. 9) are DENIED.

The Court anticipates resolving this petition expeditiously. No later than May 27, 2020, the parties shall ﬁle a joint status report stating their joint or separate positions regarding how, and on what schedule, this matter should proceed. In addition, Moniz shall ﬁle a status report, by the same date, explaining whether and how PCCF is expanding its testing in line with the institution-wide testing occurring in DOC facilities, and if not, why not.

re 39 Motion to Dismiss for Lack of Jurisdiction; 9 Motion for Preliminary Injunction; 9 Motion for TRO; 21 Motion to Dismiss for Lack of Jurisdiction (Simeone, Maria) (Entered: 05/18/2020)

05/18/2020 65 Entered in duplicate. Please see Doc. no. 64. (Entered: 05/18/2020)

05/18/2020

66 Set Deadlines: Joint Status Report due by 5/27/2020. (Montes, Mariliz) (Entered: 05/18/2020)

05/18/2020

67 Set Deadlines: Status Report due by 5/27/2020 (Simeone, Maria) (Entered: 05/18/2020)

05/19/2020

68 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 05/19/2020)

05/27/2020

69 Joint MOTION for Extension of Time to 05/29/2020 to File Joint Status Report and Proposed Discovery Schedules by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, John and Jane Does, Dedrick Lindsey, Joseph D. McDonald, Jr, Antone Moniz.(Cloherty, Daniel) (Entered: 05/27/2020)

05/27/2020 70 RESPONSE TO COURT ORDER by Antone Moniz re 64 Order on Motion to Dismiss/Lack of Jurisdiction,,,, Order on Motion for Preliminary Injunction,,,, Order on Motion for TRO,,,,,,, . (Weida, Jason) (Entered: 05/27/2020)

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71 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 69 JOINT MOTION TO EXTEND TIME TO FILE JOINT STATUS REPORT AND PROPOSED DISCOVERY SCHEDULES. Status Report and Proposed Discovery Deadlines due by 5/29/2020. (Montes, Mariliz) (Entered: 05/28/2020)
72 Reset Deadlines: Status Report due by 5/29/2020. (Montes, Mariliz) (Entered: 05/28/2020)
73 STATUS REPORT AND PROPOSED DISCOVERY SCHEDULE by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey. (Schulman, Emily) (Entered: 05/29/2020)
74 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 06/02/2020)
75 Fourth Notice of Supplemental Authorities re 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim, 39 Second MOTION to Dismiss for Lack of Jurisdiction , 9 Emergency MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Weida, Jason) (Entered: 06/12/2020)
76 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 06/22/2020)
77 STATUS REPORT Updated by Antone Moniz. (Weida, Jason) (Entered: 06/24/2020)
78 ELECTRONIC NOTICE of Hearing.
A Status Conference has been set for 7/8/2020 01:00 PM in Courtroom 13 before District Judge Leo T. Sorokin.
This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.
Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: www.forms.mad.uscourts.gov/courtlist.html.
For questions regarding access to hearings , you may refer to the Court's general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.
Status Conference set for 7/8/2020 01:00 PM in Courtroom 13 before District Judge Leo T. Sorokin. (Simeone, Maria) (Entered: 06/26/2020)
79 RESPONSE TO COURT ORDER by Antone Moniz re 64 Order on Motion to Dismiss/Lack of Jurisdiction,,,, Order on Motion for Preliminary Injunction,,,, Order on Motion for TRO,,,,,,, Updated as of July 8, 2020. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Weida, Jason) (Entered: 07/08/2020)
80 Electronic Clerk's Notes for proceedings held before District Judge Leo T. Sorokin: Status Conference held on 7/8/2020.
Counsel state the status of the case. Counsel discuss discovery regarding testing, contract tracing and masks. The court will take the matter under advisement. (Court

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Reporter: Rachel Lopez at raeufp@gmail.com.) (Simeone, Maria) (Entered: 07/09/2020)
81 District Judge Leo T. Sorokin: ORDER entered.Order re. discovery deadlines or brieﬁng deadline on habeas petition.
If the petitioners choose to ﬁle such a motion, they must do so by July 31, 2020. The respondent shall respond to any such motion for discovery within fourteen days of its ﬁling. The petitioners may ﬁle a reply, limited to ﬁve pages in length, within seven days of the opposition.
If the petitioners elect not to seek further discovery via motion as described in the preceding paragraph, they shall submit their brief addressing the merits of their habeas claims by August 10, 2020. The respondent shall ﬁle its brief responding to the petitioners' merits arguments by September 9, 2020. The petitioners may ﬁle a reply brief, limited to ﬁve pages in length, by September 23, 2020.
( Motion brieﬁng: motion due by 7/31/2020; Responses due by 8/14/2020; Replies due by 8/21/2020. Brieﬁng on habeas petition: Petitioner's memo due by 8/10/2020; respondent's memo due by 9/9/2020; reply due by 9/23/2020.)(Montes, Mariliz) (Entered: 07/10/2020)
82 MOTION for Discovery by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey.(Cloherty, Daniel) (Entered: 07/31/2020)
83 MEMORANDUM in Support re 82 MOTION for Discovery ﬁled by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey. (Attachments: # 1 Exhibit) (Cloherty, Daniel) (Entered: 07/31/2020)
84 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 08/03/2020)
85 Notice of Supplemental Authorities re 82 MOTION for Discovery (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Weida, Jason) (Entered: 08/06/2020)
86 Assented to MOTION for Leave to File Excess Pages by Antone Moniz.(Weida, Jason) (Entered: 08/14/2020)
87 MEMORANDUM in Opposition re 82 MOTION for Discovery ﬁled by Antone Moniz. (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 08/14/2020)
88 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 86 AssentedTo Motion for Leave to File Excess Pages to the memorandum of law in opposition to Petitioners' Motion for Discovery ; Counsel using the Electronic Case Filing System should now ﬁle the document for which leave to ﬁle has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to ﬁle granted on (date of order)- in the caption of the document. (Montes, Mariliz) (Entered: 08/17/2020)
89 REPLY to Response to 82 MOTION for Discovery ﬁled by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey. (Schulman, Emily) (Entered: 08/21/2020)
90 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 09/08/2020)
91 STATUS REPORT UPDATED by Antone Moniz. (Weida, Jason) (Entered: 09/10/2020)
92 District Judge Leo T. Sorokin: ORDER entered.

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For the foregoing reasons, the motion for discovery (Doc. No. 82) is DENIED, and the habeas petition (Doc. No. 1) WILL BE DENIED ON OCTOBER 8, 2020, with all of the petitioners' objections and rights preserved, UNLESS the petitioners show cause by that date why the Court should not deny this petition. The motion for class certiﬁcation (Doc. No. 6), which was previously stayed, will be TERMINATED as MOOT on October 8, 2020 if the petition is denied. (Montes, Mariliz) (Entered: 09/23/2020)
93 Set Deadlines: Show Cause Response due by 10/8/2020. (Montes, Mariliz) (Entered: 09/23/2020)
94 NOTICE of Voluntary Dismissal by Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey (Schulman, Emily) (Entered: 10/08/2020)

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 Case 1:20-cv-10753-LTS Document 1 Filed 04/17/20 Page 1 of 42

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

____________________________________________

)

ANTHONY BAEZ, JONATHAN BERMUDEZ, )

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated;

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

JOSEPH D. MCDONALD, JR., SHERIFF OF

)

PLYMOUTH COUNTY, in his official capacity, )

ANTONE MONIZ, SUPERINTENDENT OF

)

THE PLYMOUTH COUNTY CORRECTIONAL )

FACILITY, in his official capacity, and JOHN and )

JANE DOES, in their individual and official

)

capacities,

)

Defendants-Respondents. )

____________________________________________)

CIVIL ACTION NO.________
CLASS ACTION PETITION SEEKING WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241 AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs-Petitioners Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, and

Dedrick Lindsey (collectively, “Petitioners”), on behalf of themselves and a class of similarly

situated federally-detained individuals currently in the custody of the Defendants-Respondents

(collectively, “Respondents”) at the Plymouth County Correctional Facility (“PCCF”) in

Plymouth, Massachusetts, by and through their undersigned counsel, hereby allege as follows:

PRELIMINARY STATEMENT

1. This case presents a request for immediate relief on behalf of a putative class of

Petitioners—individuals currently being detained at PCCF in connection with criminal charges

filed against them in the United States District Court for the District of Massachusetts and

individuals. Because of the ongoing and unsafe conditions in which Petitioners are being held,

Petitioners are at imminent risk of contracting COVID-19, the lethal virus that is sweeping the

globe.

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2. Over the course of the past month, Petitioners and the other class members have watched in panic as the COVID-19 epidemic has spread across the world, throughout the United States and in the Commonwealth of Massachusetts, wondering what, if anything, the Respondents would do to keep them safe. Now that the COVID-19 virus has begun entering correctional facilities in Massachusetts, the answer is clear: far too little.
3. Like the rest of society, Petitioners and the other class members have read and viewed news reports in which the President of the United States and the Governor of the Commonwealth of Massachusetts have devoted hours to imploring –and in some instances requiring – all Americans to engage in “social distancing,” to avoid congregating in groups, to wash their hands and to use hand sanitizer frequently, to disinfect frequently touched surfaces, and to seek prompt medical attention if COVID-19 symptoms develop.
4. But unlike the rest of society – people who are able to, and often must, heed the directives and guidance promoted by the government relating to COVID-19 – Petitioners and the other class members cannot do so. Although they are fully aware of the serious risks posed by COVID-19 and the precautions that must be taken to protect themselves from the virus, Petitioners and the other class members are being systematically denied the opportunity to take the basic steps that are being urged by federal and local officials to protect their safety. That is because, despite knowledge of those directives—including specific and detailed guidance provided by the United States Centers for Disease Control and Prevention (“CDC”) to correctional and detention facilities like the one operated by the Respondents—Respondents have failed to implement many of the basic procedures recommended by the CDC and other government officials, including steps as straightforward as requiring 6-foot social distancing among individuals within their facility, distributing sufficient hygienic products, engaging in
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frequent and regular cleaning, and requiring the use of personal protective equipment (PPE). Most critically, Respondents have failed to take sufficient steps to reduce the populations of federal detainees at PCCF in order to ensure that the CDC guidance, including the 6-foot social distancing requirements, can be followed in order to adequately protect Petitioners’ and other class members’ health and safety.
5. Respondents’ conduct, including but not limited to their failure to follow published CDC guidance and their ongoing deliberate indifference to the significant and serious health risks posed by the COVID-19 outbreak to the Plaintiffs has violated the Petitioners’ and other class members’ rights under the Fifth Amendment’s Due Process Clause and the Eighth Amendment’s protection against cruel and unusual punishment.
6. Respondents’ ongoing failures to take reasonable precautions to prevent the spread of COVID-19 and to limit the severity of a potential COVID-19 outbreak at their facility gravely jeopardizes the safety of Petitioners and all of the other class members confined there.
7. Respondents are violating the due process rights of federal detainees when they “recklessly fail[] to act with reasonable care to mitigate the risk of a condition that Defendants “knew or should have known posed and excessive risk to health safety. Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017).
8. Respondents are violating the Eighth Amendment rights of class members through their conduct and by acting with “deliberate indifference” to an “unreasonable risk of serious damages” to members of the class. See Helling v. McKinney, 509 U.S. 25, 33-35 (1993).
9. Because of Respondents’ ongoing and systematic violation of Petitioners’ and other class members’ constitutional rights, Petitioners seek class-wide relief requiring Respondents to take immediate action to reduce the population at PCCF and to implement other basic policies
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and procedures that would mitigate the significant and serious risk posed by COVID-19 to Petitioners’ and other class members’ health and safety.
PARTIES 10. Petitioner Anthony Baez is an individual currently facing criminal charges in the United States District Court for the District of Massachusetts. At all times relevant to this Complaint, Mr. Baez has been detained at PCCF, where he is at risk of death or serious injury if exposed to COVID-19. He is being held in pretrial custody and is presumed innocent. 11. Petitioner Jonathan Bermudez is an individual currently facing criminal charges in the United States District Court for the District of Massachusetts. At all times relevant to this Complaint, Mr. Bermudez has been detained at the Plymouth County Correctional Facility (“PCCF”) in Plymouth, Massachusetts, where he is at risk of death or serious injury if exposed to COVID-19. Mr. Bermudez is being held in pretrial custody and is presumed innocent. 12. Petitioner Jermaine Gonsalves is an individual currently facing criminal charges in the United States District Court for the District of Massachusetts. At all times relevant to this Complaint, Mr. Gonsalves has been detained at PCCF, where he is at risk of death or serious injury if exposed to COVID-19. He is being held in pretrial custody and is presumed innocent. 13. Petitioner Dedrick Lindsey is an individual currently facing criminal charges in the United States District Court for the District of Massachusetts. At all times relevant to this Complaint, Mr. Lindsey has been detained at PCCF, where he is at risk of death or serious injury if exposed to COVID-19. He is being held in pretrial custody and is presumed innocent. 14. Respondent Joseph D. McDonald, Jr. (“McDonald”) is the Sheriff for Plymouth County, Massachusetts. He has failed to adopt and failed to enforce health and safety standards at PCCF in response to the COVID-19 crisis, and those failures leave Petitioners and all those
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similarly situated exposed to infection, severe illness, and death due to COVID-19. McDonald is the immediate physical custodian for the detention of Petitioners at PCCF. He is sued in his official capacity.
15. Respondent Antone Moniz (“Moniz”) is the Superintendent of PCCF. He has failed to adopt and failed to enforce health and safety standards at PCCF in response to the COVID-19 crisis, and those failures leave Petitioners and all those similarly situated exposed to infection, severe illness, and death due to COVID-19. McDonald is also the immediate physical custodian for the detention of Petitioners at PCCF. He is sued in his official capacity.
16. Respondents John and Jane Does (the “Doe Defendants”) are parties responsible for the custody and care of Petitioners and other similarly situated individuals who have failed to enforce health and safety standards at PCCF in response to the COVID-19 crisis, which has left Petitioners and all those similarly situated exposed to infection, severe illness, and death due to COVID-19. The Doe Defendants are sued in their individual and, as appropriate, official capacities. The total number and identities of the Doe Defendants is currently unknown to the Petitioners, who therefore sue these individuals using fictitious names. Petitioners will seek leave to amend the Complaint to state the true names of the Doe Defendants when they ascertain their identities. Petitioners will serve each Doe Defendant with process at that time.
JURISDICTION AND VENUE 17. Petitioners bring this action pursuant to 28 U.S.C. § 2241 for relief from Respondents’ conduct in violation of the Fifth and Eighth Amendments to the U.S. Constitution. 18. The Court has subject matter jurisdiction over this Petition pursuant to Article I, § 9, cl. 2 of the U.S. Constitution (Suspension Clause); the Fifth and the Eighth Amendments to the U.S. Constitution; 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1651 (All Writs Act); and 28
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U.S.C. § 2241 (habeas corpus). In addition, this Court has jurisdiction to grant declaratory and injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201.
19. Venue is proper in the District of Massachusetts pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events and omissions giving rise to these claims occurred and continue to occur in this District.
STATEMENT OF FACTS The COVID-19 Crisis Overview of COVID-19
20. As of 11:45 a.m. EDT on April 16, 2020, the new strain of coronavirus, COVID-19, has infected over 2,090,110 people worldwide, leading to more than 139,000 deaths.1
21. On March 11, 2020 the World Health Organization officially classified COVID-19 as a pandemic.2 Current projections by the Centers for Disease Control and Prevention (“CDC”) indicate that over 200 million people in the United States could be infected with COVID-19 over the course of the epidemic without effective public health intervention, with as many as 1.5 million deaths in the most severe projections.3
22. The mortality rate for COVID-19 worldwide is 3.4%.3 23. People of any age who suffer from certain underlying medical conditions, including lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis
1 Center for Systems Science and Engineering at Johns Hopkins University, Coronavirus COVID-19 Global Cases Dashboard at https://gisanddata.maps.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b48e9ecf6. 2 WHO Characterizes COVID-19 as a Pandemic, World Health Organization (March 11, 2020) at https://bit.ly/2W8dwpS. 3 https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid19---3-march-2020
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patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer,
HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, and asthma, are at elevated risk from COVD-19.4
24. The WHO-China Joint Mission Report provides that the COVID-19 mortality rate for
those with cardiovascular disease is 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.5
25. The need for care, including intensive care, and the likelihood of death, is much
higher from COVID-19 infection than from influenza. According to recent estimates, the fatality
rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.6
26. As of April 16, 2020, there are 32,181 positive reported cases in Massachusetts.7 To
date, there have been 1,245 COVID-19 related deaths in Massachusetts. Id.
CDC and WHO recommendations regarding prevention and/or slowing the spread
27. There is no vaccine available to prevent COVID-19, and there is no cure for COVID19.8
4 Coronavirus disease (COVID-19) advice for the public: Myth busters, World Health Organization, https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/myth-busters (“Older people, and people with pre-existing medical conditions (such as asthma, diabetes, heart disease) appear to be more vulnerable to becoming severely ill with the virus.”). 5 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19final-report.pdf (finding fatality rates for patients with COVID-19 and co-morbid conditions to be: “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer”). 6 Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, WALL ST. J. (Mar. 10, 2020, 12:49 PM) https://www.wsj.com/articles/coronavirus-vs-flu-which-virus-is-deadlier-11583856879. 7 See COVID-19 Cases, Quarantine and Monitoring (April 16, 2020) https://www.mass.gov/info-details/covid-19cases-quarantine-and-monitoring.
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28. The Centers for Disease Control and Prevention (“CDC”) has advised that the virus passes between people who are in close contact with one another (approximately six feet), through respiratory droplets produced when an infected person coughs, sneezes or talks, and by contact with surfaces.9
29. New data published in the New England Journal of Medicine found that the highly contagious “virus can remain viable and infectious in aerosols for hours and on surfaces up to days.” COVID-19 is thought to survive for three hours in the air in droplet form that can be inhaled or transferred to surfaces, up to twenty-four hours on cardboard, up to two days on plastic, and up to three days on steel.10
30. The current available evidence indicates that the virus may remain on surfaces for up to three days. See Neeljte van Doremalen, et. al., Aerosol and Surface Stability of SARS-CoV2 as Compared with SARS-COV-1, New England Journal of Medicine (Mar. 17, 2020) (“SARS-CoV2 was more stable on plastic and stainless steel than on copper and cardboard, and viable virus was detected up to 72 hours after application to these surfaces (Figure 1A)…”).11
31. To combat transmission, the CDC has issued guidance discouraging gatherings of more than 10 people in one place.12
8See Q&A on coronaviruses (COVID-19), World Health Organization (April 4, 2020) https://www.who.int/newsroom/q-a-detail/q-a-coronaviruses 9 See “How It Spreads,” Center for Disease Control and Prevention, located at https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html. 10 Neeltje van Doremalen, et. al, Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, New England J. Med., (March 17, 2020), nejm.org/doi/10.1056/NEJMc2004973. 11 Available at https://www.nejm.org/doi/10.1056/NEJMc2004973. 12 Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission, Center for Disease Control and Prevention, 3 (Mar. 12, 2020) available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.pdf.
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32. The CDC also urges social distancing—every person should remain at a distance of at least six feet from every other person.13
33. Proper hygiene, including frequent cleaning of all surfaces and frequent, thorough hand washing is also recommended.14
The Government’s Response to the COVID-19 Crisis 34. On March 13, 2020, President Donald Trump declared a national emergency to address the pandemic.15 35. Massachusetts Governor Charlie Baker declared a state of emergency in the Commonwealth of Massachusetts on March 10, 2020.16 36. To date, the pandemic has caused the Governor to issue more than 21 emergency orders.17 37. Those orders range from closing all elementary and secondary schools to prohibiting on-site consumption of food and beverages to restricting visitor access to nursing homes to prohibiting public gatherings of more than 10 people. Id. 38. On March 23, 2020, Governor Baker ordered all non-essential businesses to close. Id.
13 See supra note 7; see also Lisa Maragakis, “Coronavirus, Social Distancing, and Self-Quarantine,” John Hopkins Univ. (last accessed March 21, 2020) https://www.hopkinsmedicine.org/health/conditions-anddiseases/coronavirus/coronavirus-social-distancing-and-self-quarantine. 14 https://www.cdc.gov/handwashing/when-how-handwashing.html 15 Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Conference (March 13, 2020). https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vicepresident-pence-members-coronavirus-task-force-press-conference-3/. 16 https://www.mass.gov/executive-orders/no-591-declaration-of-a-state-of-emergency-to-respond-to-covid-19 17 https://www.mass.gov/info-details/covid-19-state-of-emergency.
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39. Forty-two states have issued “stay at home” or “shelter in place” emergency orders prohibiting non-essential travel and assembly.18 Three other states have “stay at home” and “shelter in place” orders in parts of the state. Id.
40. As of April 7, 2020, 95% of the American population is under instructions to stay at home. Id.
41. This Court has also issued a series of General Orders relative to coronavirus, including an Order continuing all jury trials that were scheduled to begin on or before May 29, 2020 (D. Mass. General Order 20-13) and an Order continuing all criminal hearings and deadlines for 60 days, unless there is a case-specific personal liberty or public safety interest at stake. (D. Mass. General Order 20-4).19 Other measures recently taken by this Court in response to the COVID-19 crisis include postponing grand juries, civil mediation sessions and naturalization ceremonies, and restricting courthouse visitors.
42. Virtually all of this Court’s recent Orders and precautionary measures are designed to keep people out of crowded places and to require “social distancing” to lessen the spread of the virus because it is highly contagious.
Locations particularly vulnerable to the spread of COVID-19 43. The recommended measures for mitigating the spread of COVID-19 are not readily available for incarcerated inmates or those who must interact with them. 44. Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. In prison, individuals are confined in close proximity to one another and
18See Which States and Cities Have Told Residents to Stay at Home (April 10, 2020) https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html?auth=login-email&login=email 19 http://www.mad.uscourts.gov/caseinfo/court-orders.htm
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to the staff. When people must share sleeping areas, dining halls, bathrooms, showers and other common areas, the opportunities for transmission are greater.
45. Because people — staff, residents, contractors, community members, and others — constantly cycle in and out of correctional facilities, there is an ever-present risk that new carriers will bring the virus into the facility.
46. In addition, there are reduced opportunities in jails and prisons to apply necessary hygiene measures, as those facilities are often under resourced and ill-equipped.
47. Compounding these problems, many people who are incarcerated also have chronic underlying health conditions, like asthma, diabetes, hypertension, or HIV, that place them at elevated risk for contracting serious COVID-19. Incarcerated people have poorer health than the general population, and even at the best of times, medical care is limited in federal pretrial detention centers.20
48. With respect to COVID-19, a prison is no different than a cruise ship21 or a nursing home22 – places where the virus has run rampant.
49. A prison is an environment in which the COVID-19 virus can easily gain a foothold and, when it does, it can spread rapidly jeopardizing the life and safety of prisoners.
“[B]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible. Separating sick people from well people to prevent the disease from spreading can be nearly impossible in prison, since prisoners are already
20 Laura M. Maruschak et al. (2015). Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12. NCJ 248491. Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics, at https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf. 21 Center for Disease Control & Prevention, COVID-19 and Cruise Ship Travel (last accessed March 21, 2020) https://wwwnc.cdc.gov/travel/notices/warning/coronavirus-cruise-ship. 22 Los Angeles Times, Seattle-Area Nursing Home Deaths Jump to 13 with COVID-19 and 11 of Unknown Causes, https://www.latimes.com/world-nation/story/2020-03-07/nursing-home-coronavirus-deaths.
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grouped according to security and other logistical considerations. Even so-called social distancing can prove impossible. People in prisons and jails live every minute of the day in close proximity to each other.”23 50. According to public health experts, incarcerated individuals “are at special risk of infection, given their living situations,” and “may also be less able to participate in proactive measures to keep themselves safe;” “infection control is challenging in these settings.”24 51. Medical professionals behind bars are sounding the alarm as well. Dr. Ross McDonald, the chief medical officer for Correctional Health Services at Rikers Island, has explained that “a storm is coming.”25 52. In commenting on the limitations of an incarceration facility to protect individuals from the threat of COVID-19, Dr. McDonald stated, “we cannot change the fundamental nature of jail. We cannot socially distance dozens of elderly men living in a dorm, sharing a bathroom. Think of a cruise ship recklessly boarding more passengers each day. . . Please let as many out as you possibly can.” Id.26 53. The “storm” that Dr. McDonald foresaw in American correctional institutions is already here. As of April 8, 2020, the Cook County Jail in Chicago, Illinois was the “largest
23 The Justice Collaborative, Explainer: Prisons and Jails are Particularly Vulnerable to COVID-19 Outbreaks, (emphasis removed) https://thejusticecollaborative.com/ wpcontent/uploads/2020/03/TJCVulnerabilityofPrisonsandJailstoCOVID19 Explainer.pdf. 24 “Achieving A Fair And Effective COVID-19 Response: An Open Letter to Vice-President Mike Pence, and Other Federal, State, and Local Leaders from Public Health and Legal Experts in the United States,” (March 2, 2020), at https://bit.ly/2W9V6oS. 25 See Craig McCarthy, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ N.Y. Post (Mar. 19, 2020) 26 See also Jennifer Grannerman, A Rikers Island Doctor Speaks Out to Save Her Elderly Patients from the Cornoavirus, The New Yorker (Mar. 20, 2020).
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Case 1:20-cv-10753-LTS Document 1 Filed 04/17/20 Page 13 of 42 source” of COVID-19 infections in the United States. In that facility, 218 inmates and 115 staff members have already tested positive for COVID-19.27
54. In New York, statistics gathered by the Legal Aid Society demonstrate that “New York City jails have become the epicenter of COVID-19.”28 Those statistics show that the COVID-19 infection rate in New York City jails is more than seven times greater than in New York City in general and more than fifty times greater than the infection rate across the United States as a whole. Id.
27 “A Jail in Chicago is Now the Largest-Known Source of U.S. Infections,” New York Times (April 8, 2020). 28 https://www.legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/
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55. In China, officials have confirmed that the coronavirus spread at a rapid pace in Chinese prisons.29
56. Courts across Iran have granted 54,000 inmates furlough as part of the measures to contain coronavirus across the country.30
57. In the United States, steps are already being taken in some jurisdictions to facilitate the release of elderly and sick prisoners and to reduce jail populations by discouraging the admission of individuals arrested on non-violent misdemeanor charges. See, e.g., Zusha Elinson and Deanna Paul, Jails Release Prisoners, Fearing Coronavirus Outbreak, Wall Street Journal (Mar. 22, 2020). This is happening in Massachusetts as well.31
58. Realizing that a crisis is looming, voices in Congress have called upon the Department of Justice to “do all they can to release as many people as possible who are currently behind bars and at risk of getting sick.” See March 19, 2020 Letter from U.S. Reps. Jerrold Nadler & Karen Bass to Attorney General William P Barr (“With large numbers of people living in close proximity to one another, many of them elderly or living with chronic diseases, DOJ must act now to save lives. Accordingly, we urge you to put in place measures to ensure that both the flow of prisoners into federal facilities is slowed significantly and that prisoners who can and should be released are released forthwith. We cannot wait any longer to take action.”);32
29 Rhea Mahbubani, Chinese Jails Have Become Hotbeds of Coronavirus As More Than 500 Cases Have Erupted, Prompting the Ouster of Several Officials, Business Insider (Feb. 21, 2020) at https://www.businessinsider.com/500-coronavirus-cases-reported-in-jails-in-china-2020-2. 30 Coronavirus: Iran Temporarily frees 54,000 prisoners to combat spread, BBC News, (Mar. 3, 2020) https://www.bbc.com/news/world-middle-east-51723398. 31 See Citing Risk of Coronavirus Spread, DA Rollins Seeks Release of Many Suspects From Custody,” WCVB Channel 5 (Mar. 20, 2020) available at https://www.wcvb.com/article/citing-risk-of-coronavirus-spread-da-rollinsseeks-release-of-many-suspects-from-custody/31781799# 32 Available at https://judiciary.house.gov/uploadedfiles/2020-03-19_letter_to_ag_barr_re_covid19.pdf.
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see also March 19, 2020 Letter from Senator Kamala Harris to Bureau of Prisons Director Michael Carvajal (noting that “[e]merging research has demonstrated how dangerous coronavirus is for the elderly and those with underlying conditions and compromised immune systems” and urging BOP to “tak[e] reasonable steps to reduce the incarcerated population and guard against potential exposure to coronavirus”).33
59. Federal courts are also beginning to recognize the risk and follow suit. See, e.g,, United States v. Matthaei, ECF No. 30, Case No. 1:19-cr-243-BLW (D. Idaho Mar. 16, 2020) (extending self-surrender date by 90 days in light of COVID-19); United States v. Barkman, 2020 U.S. Dist. LEXIS 45628 (D. Nev. Mar. 17, 2020) (suspending intermittent confinement order because “we must take every necessary action to protect vulnerable populations and the community at large”); In re Manrigue, 2020 WL 1307109 (N.D. Cal. Mar. 19, 2020) (“The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”); United States v. Stephens, 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) (granting release based on the “unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic” which places inmates, in particular, at “heightened risk”); See also United States v. Jose Perez, Amended Order, No. 19-cr-00297-PAE (S.D.N.Y. Mar. 19, 2020) (ECF No. 62) (ordering defendant’s temporary release from custody “based on the unique confluence of
33 Available at https://www.harris.senate.gov/imo/media/doc/Harris%20Letter%20to%20Carvajal%20(3.19).pdf See also March 9, 2020 letter from fifteen United States Senators to BOP Director Carvajal, available at https://www.warren.senate.gov/imo/media/doc/2020-0309%20Senator%20Warren%20Letter%20to%20BOP%20re%20Coronavirus.pdf. See also Mark Hallum, Three New York Congress members tell feds to spring non-violent offenders from jail, AMNY (Mar. 22, 2020) available at https://www.amny.com/coronavirus/three-new-york-congress-members-tell-feds-to-spring-non-violent-offendersfrom-jail/.
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serious health issues and other risk factors facing this defendant, including but not limited to the defendant’s serious progressive lung disease and other significant health issues, which place him at a substantially heightened risk of dangerous complications should be contract COVID-19 as compared to most other individuals.”); Xochihua-James v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020) (unpublished) (sua sponte releasing detainee from immigration detention “in light of the rapidly escalating public health crisis”).
60. On March 26, 2020, Attorney General William Barr sent a memorandum to the Director of the Federal Bureau of Prisons directing the BOP to take steps to transfer inmates to home confinement where appropriate in order to decrease the risk to their health. See Exhibit A – Memorandum of Attorney General William Barr, dated March 26, 2020.
61. Approximately one week later, on April 3, 2020, Attorney General Barr sent a second memorandum to the Director of the BOP noting that “we are experiencing significant levels of infection at several of our facilities.” The memorandum directed the BOP to “move with dispatch . . . to move vulnerable inmates out of these institutions.” See Exhibit B – Memorandum of Attorney General William Barr, dated April 3, 2020. In that letter, Attorney General Barr issued a finding that “emergency conditions are affecting the functioning of the Bureau of Prisons.” Id. He accordingly directed that BOP “immediately maximize appropriate transfers to home confinement of all appropriate inmates” at the affected facilities and at other similarly situated facilities. Id. The Attorney General explained that “[g]iven the speed with which the this disease has spread through the general public, it is clear that time is of the essence.” Id.
62. The Attorney General’s April 3, 2020, memorandum directed the immediate release of convicted defendants in response to the COVID-19 crisis. The arguments advanced by the
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Attorney General in that memorandum apply with even greater force to the Petitioners, many of whom are pretrial detainees and who are entitled to the presumption of innocence.
63. On April 1, 2020, the Massachusetts Supreme Judicial Court issued a ruling recognizing the serious threat posed by COVID-19 to incarcerated individuals in the Commonwealth. See Christie v. Commonwealth, Case No. SJC-12927 (Mass., April 1, 2020), slip op. at 2 (holding that “the health risks to a person in custody caused by the pandemic constitute changed circumstances” that require de novo review of a lower court’s earlier denial of a motion to stay the execution of a sentence). In that case, the SJC cited to the “unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff and visitors,” d. at 5 (quoting Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (March 23, 2020), and noted that incarcerated individuals “cannot realistically maintain adequate social distancing.” Id. at 5-6.
64. On April 3, 2020, the Massachusetts Supreme Judicial Court (“SJC”) issued a broad Order addressing individuals who are detained in Massachusetts jails, houses of correction pending trial on state charges, as well as individuals who have been convicted of state offenses and are serving a sentence of incarceration in the Commonwealth.34
65. In its April 3, 2020, ruling, the SJC acknowledged that “correctional institutions face unique difficulties in keeping their populations safe during this pandemic.” Id. at 9. Among many other concerns, the SJC noted that “[maintaining adequate physical distance, i.e., maintaining six feet of distance between oneself and others, may be nearly impossible in prisons and jails.” Id. “Proper sanitation” is another problem, and SJC noted that “during recent routine
34 See Committee for Public Counsel Services v. Chief Justice of the Trial Court, Massachusetts Supreme Judicial Court, Docket No. SJC-12926, Order dated April 3, 2020: https://assets.documentcloud.org/documents/6824900/12926.pdf.
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inspections of Massachusetts correctional institutions (prior to the declaration of emergency), DPH inspectors discovered a concerning number of repeat environmental health violations.” Id. at 10.
66. As of April 15, 2020, at least four incarcerated people in Massachusetts have died from COVID-19 related complications.35
67. At least 281 incarcerated people and staff in the Massachusetts prison and jail system have tested positive for coronavirus.36 There has been a steady increase in confirmed positive cases in Massachusetts correctional facilities over time. Id.
68. As of April 14, 2020, Massachusetts has the third highest number of reported COVID-19 cases in the United States, after New York and New Jersey.37
35 Coronavirus cases increase at Bridgewater prison (April 16, 2020) https://www.enterprisenews.com/news/20200413/coronavirus-cases-increase-at-bridgewater-prison 36 See https://data.aclum.org/sjc-12926-tracker/ 37 See Tracking Covid-19 cases in the US (April 14, 2020) https://www.cnn.com/interactive/2020/health/coronavirus-us-maps-and-cases/
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69. As of April 13, 2020, the Federal Bureau of Prisons (“BOP”) has reported that at least 388 individuals in BOP custody have tested positive for COVID-19 and 201 BOP staff members have tested positive for COVID-19.
70. As of April 13, 2020, the BOP has reported that thirteen federal inmates have died from COVID-19.
Medical Experts Have Recommend the Immediate Reduction of Population in Detention Facilities
71. Medical experts throughout the United States and in the Commonwealth of Massachusetts have recommended that, in order to address the serious threat posed by COVID19 to incarcerated persons, immediate steps must be taken to reduce inmate populations and to allow social distancing inside correctional institutions.
72. On April 2, 2020, Dr. Matthew J. Akiyama from the Albert Einstein College of Medicine and Montefiore Medical Center, Dr. Anne C. Spaulding from the Rollins School of Public Health at Emory University, and Dr. Josiah D. Rich from Brown University and Miriam Hospital published an article in the New England Journal of Medicine explaining that, in order to mitigate the serious impact of the COVID-19 crisis, “we need to prepare now, by ‘decarcerating,’ or releasing, as many people as possible.”38 They stressed the need to “consider the impact of correctional facilities in the global context” and noted that the “boundaries between communities and correctional institutions are porous, as are the borders between countries in the age of mass human travel.” Id. They noted that “[d]espite security at nearly every nation’s border, Covid-19 has appeared in practically all countries . . . [and noted that society] can’t
38 See Akiyama, M., Spaulding, A., Rich, J., Flattening the Curve for Incarcerated Populations — Covid-19 in Jails and Prisons, N Engl J Med (April 2, 2020) https://www.nejm.org/doi/full/10.1056/NEJMp2005687.
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expect to find sturdier barriers between correctional institutions and their surrounding communities in any affected country.” Id.
73. Dr. Josiah Rich, a Professor of Medicine at Brown University and the co-founder of the Center for Prisoner Health and Human Rights at The Miriam Hospital, has explained that, in light of the significant and heightened threat posed by COVID-19 to individuals in incarcerated settings, “it is imperative to scale up efforts to “decarcerate,” or release, as many detainees as possible.” He opines that “public safety will be at even greater peril if we fail to mitigate risks associated with confining too many people in correctional facilities during a pandemic.” See Exhibit C – Affidavit of Josiah Rich, M.D., M.P.H.
74. Dr. Regina Celeste Larocque, an associate physician of infectious disease at Massachusetts General Hospital and an Instructor at Harvard Medical School has explained that correctional facilities like PCCF “face a very high risk of a COVID-19 outbreak.” She explains that “such an outbreak would have disastrous consequences for the facility’s residents and staff, and the broader community,” and it therefore “is urgent that [Respondents] institute a comprehensive social distancing regimen at [PCCF] that must include elimination of shared cells if it is to be successful.” See Exhibit D – Affidavit of Regina Celeste LaRocque, M.D., M.P.H.
75. Dr. Jonathan Giftos, a current professor in the Department of Medicine at Albert Einstein College of Medicine and a former Clinical Director of Substance Use Treatment for NYC Health and Hospitals, Division of Correctional Health Services at Rikers Island has recommended that “given the proximity and high numbers of inmates correctional staff and healthcare workers at pretrial detention facilities . . . it is an urgent priority to reduce the number of people in detention facilities, including PCCF, during this national public health emergency.” See Exhibit E – Affidavit of Jonathan Giftos, M.D.
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The CDC Interim Guidance on Management of COVID-19 in Correctional and Detention Facilities
76. On March 23, 2020, the United States Centers for Disease Control and Prevention (“CDC”) issued Interim Guidance on Management of Coronavirus Disease 2019 (Covid-19) in Correctional and Detention Facilities (the “Interim Guidance”).39 The Interim Guidance states that it is designed “to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff and visitors.” A copy of that Interim Guidance is attached hereto as Exhibit F.
77. The Interim Guidance acknowledges that “[i]ncarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.”
78. The Interim Guidance explains that “there are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members.”
79. The Interim Guidance sets forth various “Operational Preparedness” steps that it describes as “essential actions” that correctional and detention facilities should take to plan and prepare for COVID-19. Those “essential actions” include, but are not limited to:
39 See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (April 5, 2020) - https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html
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a. the creation and testing of “communication plans to disseminate critical information to incarcerated detained persons, staff, contractors, vendors, and visitors as the pandemic progresses:”
b. ensuring that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases;
c. for facilities without onsite health care capacity, the creation of “a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated) and provided necessary medical care;”
d. the creation of a “list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity;
e. exploring “strategies to prevent over-crowding of correctional and detention facilities during a community outbreak;” and
f. the posting of signage throughout the facility, in all appropriate languages, communicating the symptoms of COVID-19 and appropriate hand hygiene instructions.
80. With respect to “Operations and Supplies,” the Interim Guidance states that all correctional and detention facilities should “ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE and medical supplies . . . are on hand and available.” Such supplies include, “standard medical supplies for daily clinic needs,” “tissues,” “liquid soap when possible,” “hand drying supplies,” “[a]lcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions),” “cleaning supplies,” “[r]ecommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves,
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and disposable gowns/one-piece coveralls),” and “sterile viral transport media and sterile swabs” for COVID-19 testing.
81. The Interim Guidance also recommends that facilities “begin implementing intensified cleaning and disinfecting procedures,” including the recommendation that frequentlytouched surfaces and objects (including, doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks and telephones) be cleaned several times per day.
82. With respect to “Prevention Practices for Incarcerated/Detained Persons,” the Interim Guidance recommends, inter alia, that facilities “[i]mplement social distancing strategies to increase the physical space between incarcerated/detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms.” The CDC recommends that these strategies be adopted in all common areas, during recreation and meals, during group activities, as well as in housing and medical areas.
83. With respect to sleeping areas, the CDC recommends that bunks for detainees be reassigned “to provide more space between individuals, ideally 6 feet or more in all directions.”
84. With respect to hygiene, the CDC recommends that facilities “[r]einforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).”
85. Under the current conditions at PCCF, Respondents have not and cannot reasonably implement the recommendations of the CDC Interim Guidelines without taking steps to dramatically reduce the populations at their facility. In these circumstances, release from custody
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must be the primary step taken in order to protect Petitioners and the class they seek to represent from unconstitutional treatment.
Plymouth County Correctional Facility 86. Plymouth County Correctional Facility (“PCCF”) is located at 26 Long Pond Road in, Plymouth, Massachusetts. PCCF is in Plymouth County where, as of April 16, 2020, there have been 2,466 confirmed positive cases of COVID-19. 87. On information and belief, there are currently more than one hundred and fifty (150) federal detainees being held at PCCF. Many of these federal detainees are awaiting trial on their charges. Other similarly situated detainees being held at PCCF have plead or have been found guilty of certain criminal charges and are awaiting sentencing. 88. There are more than eight hundred and seventy-five (875) full-time and part-time staff members who work in the Sherriff’s Department in Plymouth County. On information and belief, the vast majority of these staff members work regularly on-site at PCCF. On information and belief, the hundreds of staff members working regularly at PCCF work multiple shifts per week, rotating in and out of the facility according to their assigned work schedules. 89. In response to a recent Massachusetts Supreme Judicial Court’s Order, Respondent McDonald answered interrogatories related to PCCF’s social distancing practices. See Exhibit G– McDonald’s Answers to Interrogatories. 90. Approximately 49.2% of PCCF detainees sleep within six feet of one another. Id. 91. Approximately 56.72% of PCCF detainees eat their meals within six feet of one another. Id. The facility claims that detainees have multiple seating options which provide an opportunity for social distancing. Id.
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92. Approximately 47.36% of PCCF detainees are permitted to be within six feet of one another during recreation period. The facility claims that detainees have split recreation periods, which allows for social distancing, and that officers “enforce the importance of such social distancing.” Id.
93. Respondent McDonald has also recently disclosed information relating to certain state detainees that are in his custody at PCCF. It appears, however, that those recent disclosures do not address the conditions of confinement relating to the federal detainees at PCCF, including the Petitioners and other members of the class.
94. According to information collected in connection with the SJC litigation, as of April 16, 2020, Respondents had only conducted a total of four (4) COVID-19 tests of detainees in custody at PCCF and seventeen (17) COVID-19 tests of the hundreds of staff members who currently work at PCCF.40
95. Because PCCF is not regularly testing detainees or staff members for COVID-19, there is no reliable information available regarding the spread of the virus PCCF.
96. Petitioner Baez, a federal detainee being detained at PCCF, shares a cell with four other detainees. See Exhibit H – Affidavit of Edward P. Ryan, Jr. ¶ 4. There is one toilet in the cell that is shared by all five men. Id. Given the size of the cell, it is impossible for the men to maintain six feet of separation from each other during the periods when they are in the cell, including while they sleep. Id.
97. There are a total of approximately seventy (70) detainees in the “block” where Mr. Baez and his cellmates are being detained at Plymouth HOC. Mr. Baez and his cellmates are released from their cell for only four hours per day, during which they can go to the common
40 See https://data.aclum.org/sjc-12926/tracker/ (accessed April 16, 2020).
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areas of the Plymouth HOC. Id. ¶ 5. During those periods, approximately thirty-five (35) detainees on his “block” at the Plymouth HOC can mingle generally amongst each other. The other approximately thirty-five (35) detainees are allowed out of their cells for a different fourhour period each day. When the detainees are out of their cells, there is no effort to maintain separation of at least six feet from other detainees and staff. No “social distancing” protocols are enforced by Plymouth HOC staff in those common areas. Id.
98. There are two tables in the “block” that are shared by the detainees in the section of Plymouth HOC where Mr. Baez is detained. Each table has approximately eight (8) seats, and detainees regularly sit at those tables shoulder-to-shoulder. Id. ¶ 6.
99. Mr. Baez stated that he was recently provided with a face mask, but that he is not required to wear it at all times when he is outside of his cell. Mr. Baez has seen some Plymouth HOC staff recently wearing face masks, but the masks are not worn by all staff. Plymouth HOC staff routinely are within six feet of detainees when they interact with the detainees at the facility. Id. ¶ 8.
100. Petitioner Bermudez, a federal detainee being held at PCCF, is housed in the H-3 unit at PCCF. See Exhibit I – Affidavit of Attorney Jane Peachy, ¶ 3.
101. Petitioner Bermudez is assigned to a cell with one other person and shares a bunk bed, one toilet and one sink with his cellmate. Id. ¶ 4.
102. Petitioner Bermudez and other detainees in his unit are responsible for cleaning their own cells. Id. ¶ 5.
103. Petitioner Bermudez has had limited access to hand sanitizer; detainees are only given one bar of soap per week. Id. ¶¶ 6-7.
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104. Petitioner Bermudez resides among 70-80 other detainees in the unit, where the detainees eat their meals at four inmates per table. Id. ¶ 8.
105. Petitioner Bermudez and other similarly situated PCCF detainees share nine showers among 70-80 detainees, which are cleaned a few times per week by an inmate worker. Id. ¶ 9.
106. Petitioner Bermudez recently suffered a medical issue that was likely the result of poor hygiene in the showers. Id. ¶ 10.
107. Petitioner Bermudez’s cellmate recently went to the medical unit with symptoms of coronavirus. PCCF staff required Petitioner Bermudez to pack up his cellmate’s property and did not give Petitioner Bermudez gloves despite the fact that his cellmate’s property was likely to transmit coronavirus to Petitioner Bermudez. Id. ¶¶ 11-12.
108. Petitioner Bermudez and other similarly situated PCCF detainees have not been given information regarding the spread of the virus at PCCF. Id. ¶ 10.
109. Petitioner Gonsalves, a federal detainee being held at PCCF, is housed in a cell at PCCF with one other individual. See Exhibit J – Affidavit of Keith Halpern, Esq., ¶ 1-2. There is one bunk unit in the cell. The bunk has two beds, one stacked on top of the other. The beds are less than six feet apart. It is not possible for Petitioner Gonsalves and his cellmate to maintain a distance of six feet between themselves while they are in their cell together. Id. ¶4.
110. There has been no change in meal conditions for Petitioner Gonsalves and other similarly situated federal detainees at PCCF in response to the COVID-19 pandemic. The number of inmates eating together has not changed. Inmates eat at rectangular tables that seats six, in a room with a number of similar tables. There is no effort to maintain a distance of six feet between inmates. Rather, inmates are seated immediately next to one another at the tables, with other inmates seated across the table, all within a distance of six feet. Id. ¶ 5.
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111. Petitioner Gonsalves has observed less than half of the correctional officers wearing masks. There has been no change in the manner in which correctional officers interact with Petitioner Gonsalves and other similarly situated federal detainees at PCCF, and no effort to maintain greater physical distance between correctional officers and inmates. Correctional officers are routinely within six feet of inmates. Id. ¶ 6.
112. Petitioner Gonsalves and other similarly situated federal detainees have no access to liquid soap or hand sanitizer. Inmates are provided with one small bar of soap each week. There has been no change in soap access due to the pandemic. Id. ¶ 7.
113. Prior to the pandemic, PCCF inmates received two rolls of toilet paper each week. Since the pandemic began, Petitioner Gonsalves and other similarly situated federal detainees at PCCF are receiving one roll of toilet paper per week. Id. ¶ 8.
114. Petitioner Gonsalves has observed PCCF to be a dirty environment, and there have been no visible efforts to improve cleanliness as a result of the pandemic. PCCF is as dirty as it was before the pandemic. Id. ¶ 9.
115. Petitioner Gonsalves has learned that a special unit, C-1, had been set up for the quarantine of inmates with symptoms suggesting COVID-19. Petitioner Gonsalves stated that inmates were reluctant to report feeling unwell because they feared being moved into the quarantine unit and being surrounded by sick inmates. Id. ¶ 10.
116. Petitioner Gonsalves has not observed any efforts being made at PCCF keep inmates at least 6’ apart, or to keep inmates and correctional officers at least six feet apart. Id. ¶ 11.
117. Petitioner Gonsalves has not observed any changes to inmates’ recreation at PCCF. Inmates have four hours of recreation per day. At recreation, inmates are able to work out, play
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basketball, and engage in other activities without regard to how far apart they are from one another, and that inmates are routinely within six feet of one another. Id. ¶ 12.
118. Petitioner Dedrick Lindsey, who is a federal detainee being held at PCCF, currently being held in a dorm unit. See Exhibit K – Affidavit of Attorney Jessica Thrall. This is a setting where 6-8 individuals share a living quarters. Id. ¶ 4. Their beds are next to one another. Id. Mr. Lindsey is currently sleeping on the bottom bunk. Id. There is no one above him at this time, but there is someone next to him on the same level. Id. The beds are not 6 feet apart. Id.
119. Mr. Lindsey stated that the individuals living in this dorm also share meals together. Id. ¶ 5. There are several tables for the men to eat at, but they cannot eat at a table alone as there are not enough tables for everyone. Id. In order to sit at these tables and eat, they must be closer than 6 feet apart. Id. At any given time, additional people could be added to the dorm setting. Id. at ¶6.
120. Mr. Lindsey is permitted to go outdoors for recreation time. Id. However, this “rec time” is shared with people from other dorms or units. Id. Mr. Lindsey chooses not to go outdoors at “rec time” as he will then have to interact with more people than the individuals in his dorm. Id.
121. Mr. Lindsey reports that the detainees were recently given masks. Id. ¶ 8. The guards use masks and gloves with variable frequency depending on who is working that shift. Id.
122. Within the dorm unit, there is a spray bottle of sanitizer that the people on the dorm are allowed to utilize. Id. ¶ 9. As of April 16, 2020, a hand sanitizer bottle was put in the dorm unit. Previously there had been no hand sanitizer. Id. ¶10.
123. Mr. Lindsey is fearful for his health and is concerned because he cannot control who he shares space with. Id. ¶ 11.
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124. Samuel Baptista, a federal detainee being held at PCCF, is currently being housed in a segregated unit at PCCF. See Exhibit L – Affidavit of Attorney Timothy Watkins. Mr. Baptista explained that he and other detainees were previously housed in an open-cell dormitory-style unit, where detainees sleep three feet from each other. Id. Mr. Baptista has not observed any changes made within that unit regarding increased social distancing or hygiene after the COVID19 pandemic began.
125. Mr. Baptista has explained that the correctional officers at PCCF do not maintain six feet of distance from him or between themselves. Id. ¶ 4. He has explained that he was recently provided with a paper mask and told to wear it “when he thinks he should wear it.” Id. ¶ 5. The correctional officers at PCCF do not consistently wear masks or gloves in the facility. Id. ¶ 7.
126. Mr. Baptista has explained that PCCF is “extremely dirty.” Id. ¶ 11. He has not observed any effort to clean the facility or to enforce social distancing at the facility in response to the COVID-19 pandemic. Id.
127. Mr. Baptista and other PCCF detainees are not given hand sanitizer and are only given one bar of soap per week. Id. ¶ 8.
LEGAL ALLEGATIONS 128. Section 2241(c)(3) of Title 28 of the United States Code authorizes courts to grant habeas corpus relief where a person is “in custody in violation of the Constitution or other laws or treaties of the United States.” 129. Respondents are violating Petitioners’ Fifth and Eighth Amendment rights by continuing to incarcerate them in conditions where it is virtually impossible to take steps to prevent transmission of an infectious disease that will prove deadly because of the nature of the infectious disease.
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130. Pretrial detainees are presumed innocent and must not be punished with likely exposure to COVID-19 due to their incarcerated status. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”)
131. All federal detainees being held at the facility operated by Respondents are entitled to be protected from condition of confinement that create a serious risk to health or safety, including through release from custody when necessary. Brown v. Plata, 563 U.S. 493, 531-32 (2011) (upholding lower court’s order releasing people from state prison even though release was based on prospect of future harm caused by prison overcrowding); see also Farmer v. Brennan, 511 U.S. 825, 834 (correctional official violates Eighth Amendment by consciously failing to prevent “a substantial risk of serious harm”); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“deliberate indifference” to serious medical needs violate the Eighth Amendment). The risk of exposure to a deadly infectious disease such as COVID-19 constitutes a serious risk to health. Helling v. McKinney, 509 U.S. 25, 34 (1993) (noting with approval Eighth Amendment claims based on exposure to serious contagious diseases). Under the current conditions at PCCF, Respondents have not and cannot protect Petitioners and the class from this risk of serious harm. In these circumstances, release is the only means of protecting Petitioners and the class they seek to represent from unconstitutional treatment.
132. Government officials act with deliberate indifference when they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33. This Court need not “await a tragic event” to find that Respondents are maintaining unconstitutional conditions of confinement. Id.
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133. The reach of the Fifth and Eighth Amendments includes “exposure of inmates to a serious, communicable disease.” Helling, 509 U.S. at 33.
134. In this case, as established by the facts above, Petitioners and the other class members face a significant risk of exposure to coronavirus, with the attendant risk of death that follows given the current conditions of confinement at PCCF. Respondents are well aware of this risk, having been alerted to it by the CDC, the Attorney General, the Massachusetts Supreme Judicial Court, and advocates such as the Federal Defender Office for the District of Massachusetts.
135. Additionally, in recent weeks, courts in other jurisdictions such as the Second Circuit Court of Appeals, unprompted, acknowledged the “grave and enduring” risk posed by COVID-19 in the correctional context. Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons, No. 19-1778, __ F.3d __, 2020 WL 1320886, at *12 (2d Cir. Mar. 20, 2020); see also Jovel v. Decker, No. 20 Civ. 308, 2020 WL 1467397, at *1 (S.D.N.Y. Mar. 26, 2020) (finding “extraordinary circumstances” of COVID-19 pandemic justified release of immigration detainee from federal detention); United States v. Little, No. 20 Cr. 57, 2020 WL 1439979, at *4 (S.D.N.Y. Mar. 24, 2020) (“As additional people are arrested who have been out in the community as the coronavirus spreads, if they are not symptomatic, they will be brought into the MCC and MDC, and held with the existing population, potentially bringing COVID-19 into this population held in large numbers, close quarters, and low sanitary conditions.”).
136. Finally, as established above, Respondents have not taken steps sufficient to protect Petitioners and the other members of the class from the grave risks that are present every moment they are in detention at PCCF. Respondents are not capable of managing the risk to Petitioners and the other members of the class in the current environments at PCCF. Whether
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judged under the Fifth or Eighth Amendment, Respondents are holding Petitioners in violation of the Constitution by detaining them in the face of significant threats to their health and safety without taking sufficient steps to prevent that harm.
CLASS ACTION ALLEGATIONS 137. Petitioners bring this representative habeas action pursuant to 28 U.S.C. § 2241 and, alternatively, as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on their own behalf and on behalf of all persons similarly situated. 138. Petitioners seek to represent a class consisting of all current and future federal detainees being held at PCCF during the course of the COVID-19 pandemic, including detainees being held prior to trial and detainees who have plead or been found guilty of certain offenses, but have not yet been sentenced (the “Class”). 139. The members of the Class are too numerous to be joined in one action, and their joinder is impracticable. Upon information and belief, the Class exceeds one hundred and fifty (150) individuals. 140. Common questions of law and fact exist as to all Class members and predominate over questions that affect only the individual members. These common questions of fact and law include but are not limited to: (1) whether the conditions of confinement described in this Petition amounts to Constitutional violations; (2) what measures Respondents took in response to the COVID-19 Crisis; (3) whether Respondents implemented an adequate emergency plan during the COVID-19 Crisis; (4) whether Respondents’ practices during the COVID-19 Crisis exposed federal detainees in PCCF to a substantial risk of serious harm; (5) whether the Respondents knew of and disregarded a substantial risk of serious harm to the safety and health
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of the Class; and (7) what relief should be awarded to redress the harms threatened to members of the Class as a result of the conditions.
141. Absent class certification, federal detainees in Respondents’ custody during the COVID-19 pandemic would face a series of barriers in accessing the relief sought. Under the current circumstances, federal detainees have limited access to communication with the outside world, impeding their ability to obtain legal representation and pursue litigation. A large portion of the Class has limited educational backgrounds. And a significant percentage of the Class members suffer from physical or mental impairments.
142. Respondents’ practices and the claims alleged in this Petition are common to all members of the Class.
143. The claims of Petitioners are typical of those of the Class. Petitioners are threatened with imminent inhumane conditions of confinement at the facility operated by Respondents.
144. The legal theories on which Petitioners rely are the same or similar to those on which all Class members would rely, and the harms suffered by them are typical of those suffered by all the other Class members.
145. Petitioners will fairly and adequately protect the interests of the Class. The interests of the Class representatives are consistent with those of the Class members. In addition, counsel for Petitioners are experienced in class action litigation.
146. Counsel for Petitioners know of no conflicts of interest among Class members or between the attorneys and Class members that would affect this litigation.
147. Use of the class action mechanism here is superior to other available methods for the fair and efficient adjudication of the claims and will prevent the imposition of undue financial,
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administrative, and procedural burdens on the parties and on this Court, which individual litigation of these claims would impose.
148. This class action is superior to any other method for the fair and efficient adjudication of this legal dispute, as joinder of all Class members is impracticable.
149. There will be no extraordinary difficulty in the management of this class action. CAUSES OF ACTION
FIRST CAUSE OF ACTION – VIOLATION OF FIFTH AMENDMENT (Declaratory and Injunctive Relief)
150. Petitioners incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
151. Petitioners bring this claim on their own behalf and on behalf of the Class. 152. The Due Process Clauses guarantees pretrial detainees the right to be detained in a safe situation, free from punitive conditions of confinement. See U.S. Const. Amend V. The government violates that guarantee where a widespread outbreak of a contagious disease subjects detainees to inhumane conditions without adequate protection. 153. Respondents are violating Plaintiffs’ and proposed class members’ Fifth Amendment rights because “the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2473–74 (2015). 154. Because of the conditions at PCCF, Petitioners and all others similarly situated are not able to take steps to protect themselves—such as social distancing, employing routine hygienic practices, using hand sanitizer, or washing their hands regularly—and Respondents have not provided adequate protections. If COVID-19 rapidly spreads at the PCCF, the already
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deplorable conditions there will be exacerbated, and the ability to protect oneself will become even more impossible.
155. Respondents’ failure to adequately protect Petitioners from these punitive conditions, or release them from the conditions altogether, constitutes an egregious violation of Petitioners’ due process rights and deliberate indifference to the serious medical needs of Petitioners, and all members of the Class.
156. Respondents are aware or should have been aware of these conditions, which are open and obvious throughout the faclility.
157. Upon information and belief, Respondents have received the CDC’s Interim Guidance on Management of Coronavirus Disease 2019.
158. Respondents know of and have disregarded excessive risks to the health and safety of Petitioners and the other members of the Class.
159. Respondents have failed to act with reasonable care to mitigate these risks. 160. Respondents have acted with deliberate indifference towards Petitioners and all others similarly situated by failing to safeguard their health and safety adequately. 161. Because Respondents have failed to act to remedy Petitioners’ and the Class’s degrading and inhuman conditions of confinement in violation of their Fifth Amendment rights, Petitioners seek relief under this Writ of Habeas Corpus. 162. Because of the unlawful conduct of Respondent, Petitioners and the Class are threatened with imminent physical injury, pain and suffering, emotional distress, humiliation, and death.
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SECOND CAUSE OF ACTION – VIOLATION OF EIGHTH AMENDMENT (Declaratory and Injunctive Relief)
163. Petitioners incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
164. Petitioners bring this claim on their own behalf and on behalf of the Class. 165. The Eighth Amendment to the United States Constitution protects Petitioners and proposed class members from cruel and unusual punishment. 166. To amount to the infliction of cruel and unusual punishment (1) jail or prison conditions must pose “an unreasonable risk of serious damage” to a prisoner’s health (an objective test) and (2) prison officials must have acted with deliberate indifference to the risk posed (a subjective test). Helling, 509 U.S. at 33–35. 167. Petitioners and proposed class members are subject to a risk of harm that today’s society does not tolerate. 168. Society does not tolerate the risk of exposure to COVID-19 to which Respondents’ policies and procedures (or lack thereof) have subjected Petitioners and proposed class members. 169. Indeed, the CDC, the World Health Organization and several government officials have warned against the dangers of the very behaviors in which Petitioners and proposed class members are required daily to engage as a direct result of Respondents’ policies and procedures (or lack thereof). Because of the conditions at the facility operated by Respondents, Petitioners and all others similarly situated are not able to take steps to protect themselves—such as social distancing, using hand sanitizer, or washing their hands regularly—and Respondents have not provided adequate protections. If COVID-19 rapidly spreads at the facility operated by
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Respondents, as experts predict, the already deplorable conditions at that facility will be exacerbated, and the ability to protect oneself will become even more impossible.
170. Petitioners and proposed class members suffer a substantial risk of serious harm to their health and safety due to the presence of, and spread of, COVID-19.
171. Respondents’ failure to adequately protect Petitioners from these punitive conditions, or release them from the conditions altogether, constitutes an egregious violation of Petitioners’ due process rights and deliberate indifference to the serious medical needs of Petitioners, and all members of the Class, thereby establishing a violation of the Eighth Amendment of the United States Constitution.
172. Respondents are aware or should have been aware of these conditions, which are open and obvious throughout the entire jail.
173. Upon information and belief, Respondents have received the CDC’s Interim Guidance on Management of Coronavirus Disease 2019.
174. Respondents know of and have disregarded an excessive risk to health and safety. 175. Respondents have failed to act with reasonable care to mitigate these risks. 176. Respondents have acted with deliberate indifference towards Petitioners and all others similarly situated by failing to safeguard their health and safety adequately. 177. Because Respondents have failed to act to remedy Petitioners’ and the Class’s degrading and inhuman conditions of confinement in violation of their Eighth Amendment rights, Petitioners seek relief under this Writ of Habeas Corpus. 178. Because of the unlawful conduct of Respondent, Petitioners and the Class are threatened with imminent physical injury, pain and suffering, emotional distress, humiliation, and death.
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PRAYER FOR RELIEF WHEREFORE, Petitioners and the Class members respectfully request that the Court enter a
class-wide judgment: A. Certify the proposed Class; B. Enter a temporary restraining order, preliminary injunction, and permanent injunction
and/or writs of habeas corpus requiring the following: 1. Require Respondents to immediately take all actions to reduce the federal detainee
population at PCCF by releasing a sufficient number of federal detainees from the facility in order to ensure the health and safety of all members of the Class; 2. Appoint an expert under Federal Rule of Evidence 706 to make recommendations to the Court regarding how many and which class members to order released so as to ensure that the number of prisoners remaining at PCCF can be housed consistently with CDC guidance on best practices to prevent the spread of COVID-19, including the requirement that prisoners be able to maintain six feet of space between them and further order that such recommendations take into account CDC guidance concerning health factors that put individuals at elevated risk of death from COVID-19; 3. Allow that expert to enter PCCF unannounced in order to assess the facility’s compliance with the guidance noted in Paragraph 2 and bring with them cameras, cell phones, writing implements, and any other equipment required to conduct their site visits. Once in the facility, permit the expert to inspect areas of the facility without limitation and speak with staff and residents in confidence and outside of the presence of the facility’s supervisors and staff;
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4. Ensure that each member of the Class receives an individual supply of hand soap, sufficient to allow frequent hand washing; paper towels; toilet paper; running water; and facial tissue;
5. Ensure that all members of the Class, when not in cells with access to hand soap and running water, have access to hand sanitizer containing at least 60% alcohol;
6. Require that all staff at PCCF wear personal protective equipment, including masks and gloves when interacting with visitors and residents and members of the Class or when touching surfaces in common areas;
7. Direct Respondents to clean and disinfect all frequently touched surfaces at PCCF with disinfectant products effective against the virus that causes COVID-19 (at the manufacturer’s recommended concentration), as well as surfaces in common areas, every two hours during waking hours, and at least once during the night;
8. Order Respondents to provide a status report to this Court, twice weekly in writing, concerning the incidence of infection of COVID-19 at PCCF and the measures undertaken to mitigate the spread of COVID-19 at PCCF. The status report shall include the following information: A. The total number of federal detainees at PCCF that day (divided by United States Marshals Service and Immigration and Customs Enforcement detainees); B. The number of detainees, including federal detainees, tested for COVID-19 and the number testing positive (numbers should be cumulative);
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Case 1:20-cv-10753-LTS Document 1 Filed 04/17/20 Page 41 of 42 C. The number of staff tested for COVID-19 and the number testing positive (numbers should be cumulative); D. All efforts undertaken to mitigate the spread of COVID-19 both generally, and in response to any symptomatic inmate(s) and staff member(s) and/or positive test(s); E. Protocols for screening and testing all detainees, staff, and others entering or leaving the facility.
9. Appoint an independent monitor with medical expertise to ensure compliance with these conditions, and provide the monitor with unfettered access to medical units, confidential communication with detained individuals in and out of quarantine, and surveillance video of public areas of the facility; and
10. Award such further relief as this Court deems appropriate.
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Respectfully submitted,
ANTHONY BAEZ, JONATHAN BERMUDEZ, JERMAINE GONSALVES, and DEDRICK LINDSEY on behalf of themselves and all others similarly situated,
By their attorneys,

/s/ Daniel J. Cloherty Daniel J. Cloherty (BBO #565772) Saraa Basaria (BBO #685705) TODD & WELD LLP One Federal Street, Floor 27 Boston, MA 02110 (617) 720-2626 dcloherty@toddweld.com sbasaria@toddweld.com

/s/Emily Schulman Emily Schulman (BBO #566374) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6077 emily.schulman@wilmerhale.com
David E. Rudin (pro hac vice pending) WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 936-7249 david.rudin@wilmerhale.com

Dated: April 17, 2020

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EXHIBIT A

Case 2:20C-cavs-e0014:202-cTvA-1D0-K75K3-LDToScumDeonctu8m-e2ntF1il-e1d 0F4il/e1d0/0240/17P/2a0ge P1aogfe22Poafg3eID #: 101
GOVERNMENT EXHIBIT
2

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EXHIBIT B

Case 2:20C-cavs-e0014:202-cTvA-1D0-K75K3-LDToScumDeonctu8m-e3ntF1il-e2d 0F4il/e1d0/0240/17P/2a0ge P1aogfe32Poafg4eID #: 103
GOVERNMENT EXHIBIT
3

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Case 2:20C-cavs-e0014:202-cTvA-1D0-K75K3-LDToScumDeonctu8m-e3ntF1il-e2d 0F4il/e1d0/0240/17P/2a0ge P3aogfe34Poafg4eID #: 105

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EXHIBIT C

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Affidavit of Dr. Josiah Rich, MD, MPH 1. I am a doctor duly licensed to practice medicine in the state of Rhode Island. I am currently Professor of Medicine and Epidemiology at The Warren Alpert Medical School of Brown University, and the Director and Co-founder of The Center for Prisoner Health and Human Rights at The Miriam Hospital. I have been a practicing Infectious Disease Specialist since 1994. I provide clinical care at The Miriam Hospital Immunology Center, as well as at the Rhode Island Department of Corrections, where I care for prisoners with HIV infection and addiction and also work in the correctional setting doing research. 2. My primary field and area of specialization and expertise is in the overlap between infectious diseases and illicit substance use, the treatment and prevention of HIV infection, and the care and prevention of disease in addicted and incarcerated individuals. I am an elected member of the National Academy of Medicine, and I have served as an expert for the National Academy of Sciences, the Institute of Medicine, and many others. I have also been appointed by Rhode Island Governor Gina Raimondo to the Overdose Prevention and Intervention Task Force Expert Team. I have published over 200 peer-reviewed publications, predominantly in the overlap between infectious diseases, addictions, and incarceration. 3. The matters that I discuss below are proceeding at a rapid pace across the country. I have published about these urgent concerns in the New England Journal of Medicine, the Washington Post, and elsewhere. I attach copies of those articles to this affidavit. 4. I submit this affidavit in support of federal detainees held at the Plymouth County Correctional Facility (“Plymouth”) during the COVID-19 pandemic.

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Plymouth County Correctional Facility must respond to the extreme challenges COVID-19 poses.
5. As we are quickly seeing throughout the United States and the world, highly transmissible novel respiratory pathogens such as SARS-CoV-2—the virus that causes COVID19—create a perfect storm for correctional settings. First, correctional settings are ideal for rapid spread of viruses that are transmitted person-to-person, especially those passed by droplets through coughing and sneezing. When people must share cells, dayrooms, bathrooms, showers, and other common areas, the opportunities for transmission are great. While there is not yet conclusive evidence that SARS-CoV-2 is an airborne virus, in the context of limited information, we must assume that it is. In that case, the poor ventilation systems within correctional facilities will ensure maximal opportunities for transmission. 6. When viruses are transmitted from person to person, the best initial strategy is to practice social distancing. Yet social distancing is extremely challenging in correctional settings, especially when residents are housed in shared cells or dormitory settings. Even when facilities are locked down and use of common space is restricted, shared cells defeat the efficacy of these social distancing measures. Moreover, there is inevitably frequent contact among prisoners, and especially between prisoners and staff, during a lockdown. Even a quick cell change or shower involves multiple opportunities for contact with others. Accordingly, correctional facilities are congregate settings that are poorly designed to prevent the inevitable rapid and widespread dissemination of this virus. 7. I have reviewed the affidavits of Jane Peachy, Keith Halpern, Jessica Thrall, Timothy Watkins, and Edward Ryan. I have also reviewed Sheriff McDonald’s affidavit, declaration, and answers to interrogatories and Dr. Lawrence Baker, M.D.’s declaration.

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8. From my review of those materials, I understand Plymouth, like other corrections facilities, has suspended visitation and has taken other limited measures to try to prevent infection. The Sheriff’s affidavit, declaration, and answers to interrogatories, Dr. Baker’s declaration, and the affidavits submitted/prepared on behalf of the detainees indicate that Plymouth has not implemented effective social distancing measures at the facility. Detainees continue to eat, sleep, and recreate within six feet of each other. According to Mr. Halpern and Mr. Watkins, correctional officers still approach detainees without regard for keeping physical distance given the pandemic. 9. That is especially problematic because, irrespective of any screening that is done, infected persons—especially staff members—will inevitably continue to enter correctional settings. It is essential to understand that, despite being physically secure, jails and prisons are not isolated from the community. Rather, the boundaries between correctional institutions and the communities in which they sit are extremely porous. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, population turnover means that people cycle between facilities and communities. And people often need to be transported to and from facilities, including for disciplinary and/or quarantining purposes. All of this is problematic in the context of this pandemic: While entry temperature checks may be effective screening mechanisms for some symptomatic infections, they are ineffective with SARS-CoV-2 due to high rates of asymptomatic or pre-symptomatic infection. Therefore, Plymouth’s screening procedures will not, on their own, prevent COVID19 from entering those facilities. 10. I understand that one employee of the Plymouth County Sheriff’s Department has already been diagnosed with COVID-19. The facility is fortunate that that case did not result in

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widespread infection within Plymouth itself. Absent steps to ensure social distancing at Plymouth, it is likely only a matter of time before such an outbreak occurs. 11. Moreover, there are reduced opportunities for detainees and staff to practice proper hand hygiene and cleaning in prisons. During an infectious disease outbreak, free people can protect themselves by washing hands. Correctional facilities do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. These facilities are often under-resourced and illequipped with sufficient hand soap and alcohol-based sanitizers for both people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but bleach is often unavailable, and cleaning agents used by correctional settings may not have been shown to effectively neutralize this virus, particularly in the diluted form commonly employed. There may also be a lack of people available to perform necessary cleaning procedures, which is exacerbated as people fall ill and movement is restricted. I note that Plymouth was already falling short of minimal health standards even before the COVID-19 pandemic was broadly recognized in the United States. In September 2019, the Massachusetts Department of Public Health’s (“DPH”) cited Plymouth for 99 repeat health violations that the facility had failed to rectify since the DPH’s prior inspection in February 2019. 12. Having reviewed the affidavits submitted on behalf of individual detainees at Plymouth, that facility does not appear to have instituted adequate hygiene and cleaning policies or practices since that time. For example, to ensure proper hand hygiene, detainees need more than one small bar of soap. Mr. Baptista also states that he has been unable to clean his dormitory,

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including his toilet and shower. Those areas must be cleaned and disinfected. Frequently touched surfaces, such as shower knobs, need to be cleaned and disinfected at least daily. 13. A containment strategy for this virus requires both widespread screening and that people who are symptomatic be immediately isolated. It also requires that correctional officers and caregivers have access to personal protective equipment, including gloves, masks, gowns, and face shields. Yet correctional settings are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility where an outbreak is occurring. Correctional settings are also unlikely to be able to perform the widespread screening and contact-tracing necessary to prevent further infection. 14. Sheriff McDonald’s affidavit, declaration, and interrogatory answers and Dr. Baker’s declaration do not say if Plymouth has sufficient stocks of personal protective equipment. Nor do they say if Plymouth has trained nonmedical staff or detainees how to correctly use personal protective equipment. 15. The risk of life-threatening infection stemming from all of the deficiencies detailed above is compounded by the fact that half of all incarcerated people in the United States have at least one chronic disease. With limited ability to protect themselves and others by self-isolating, thousands of susceptible people are at heightened risk for severe illness. Lessening the spread of COVID-19 requires urgent, scaled-up decarceration 16. The more preemptive measures taken by legal, public health, and correctional health partnerships, the lighter the burden the correctional facilities and their surrounding communities will bear. The global context offers some precedent here. Iran, for example, responded to its escalating pandemic by releasing 70,000 prisoners, something that may have helped “bend the

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Case 1:20-cv-10753-LTS Document 1-3 Filed 04/17/20 Page 7 of 13 curve” of that country’s epidemic. Conversely, failure to calm incarcerated populations in Italy led to widespread rioting in Italian prisons. 17. The Bureau of Prisons has reported positive COVID-19 tests for detainees in its custody and staff and the number of detainee deaths from COVID-19.1 The Federal Defenders of New York have graphed the steep rise in those numbers, which confirm the extreme risk of rapid COVID-19 transmission in correctional environments. The Federal Defenders of New York have also graphed the rising rate of positive COVID-19 tests in detainees against the rate in the national population.2 These graphs illustrate the severity of the immediate risk detention facilities such as Plymouth pose to their residents.
1 www.bop.gov/coronavirus. 2 https://federaldefendersny.org/ (last accessed April 14, 2020) (aggregating data from the CDC and Johns Hopkins University).

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18. The Federal Defenders observe that these numbers may underreport actual positive COVID-19 tests.3 I believe that these numbers may be underinclusive because many detainees have limited access to care and testing and may be afraid to report symptoms. 19. I have also reviewed data received by the ACLU of Massachusetts from Committee for Public Counsel Services v. Chief Justice of the Trial Court, SJC-12926. This data (and the graphs that the ACLU of Massachusetts created) reveal a sharp increase in positive COVID-19
3 Id.

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tests in the Massachusetts Department of Correction and county Houses of Correction.4 Although Plymouth has only reported one positive test to date, the Massachusetts detention system as a whole has experienced a sharp increase in COVID-19 cases since March 2020:
20. At minimum, Plymouth must be prepared to effectively isolate and separate incarcerated persons who are infected and those who are under investigation for possible infection from the general prison population; to hospitalize those who are seriously ill; and to cope with the high burden of disease and severe staff shortages that are likely to come. 21. But this won’t be enough. It is imperative to scale up efforts to “decarcerate,” or release, as many detainees as possible. Each person needlessly infected in a correctional setting who develops severe illness will be one too many. And public safety will be at even greater peril if we fail to mitigate risks associated with confining too many people in correctional facilities during a pandemic. 22. It is my strong opinion that urgent decarceration is imperative to flatten the curve of COVID-19 cases among incarcerated populations and to limit the impact of transmission both inside correctional facilities and in the community. This is urgently needed at Plymouth, where
4 Tracking Covid-19 in Massachusetts Prison & Jails, ACLU of Massachusetts (Apr. 14, 2020), https://data.aclum.org/sjc-12926-tracker/#tab-9488-2.

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federal detainees report that beds in shared cells and dormitories in which they are housed are less than six feet apart from one another.5 Even outside their cells, detainees reportedly contend with congested common areas. At least one detainee, Mr. Lindsey, is too afraid to leave his dorm unit, which is shared with 6-8 other people, because the recreation area is too cramped. Detainees’ inability to maintain consistent social distancing undercuts the efficacy of any other mitigation efforts at the facility and exposes its population to a heightened risk of a COVID-19 outbreak. 23. The abrupt onset of severe COVID-19 infections among incarcerated individuals will require mass transfers to local hospitals. This is because most correctional facilities lack the equipment needed to treat serious COVID-19 cases, such as ventilators. But even in the absence of an outbreak, I am concerned about the healthcare available to detainees at Plymouth. Per a WBUR investigative report, 12 residents died in Plymouth between 2008 and 2018.6 195 died in Massachusetts houses of corrections over that period, and a third of those deaths involved “allegations or evidence of poor medical care before their deaths” according to WBUR.7 24. Individuals suffering from severe COVID-19 cases will likely require treatment in an intensive care unit (“ICU”) and even ventilation—highly expensive interventions that are already in very short supply. Each severely ill patient coming from Plymouth who occupies an ICU bed may mean others may die for inability to obtain care. These are preventable infections, and we should act to prevent them.
5 Id. The ACLU of Massachusetts website does not display data broken out by each correctional institution that the Department of Correction oversees. Id. 6 Christine Willmsen & Beth Healy, When Inmates Die of Poor Medical Care, Jails Often Keep It Secret, WBUR (Mar. 23, 2020), https://www.wbur.org/investigations/2020/03/23/county-jail-deaths-sheriffs-watch. 7 Id.

DocuSign Envelope ID: 7AF337EE-C36E-47E5-8881-4D1AFD268CC7
Case 1:20-cv-10753-LTS Document 1-3 Filed 04/17/20 Page 13 of 13 I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executed this 16th day of April, 2020
Dr. Josiah Rich

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EXHIBIT D

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Affidavit of Regina Celeste LaRocque, MD, MPH I, Regina Celeste LaRocque, certify as follows: 1. I am an associate physician in the division of infectious diseases at Massachusetts General Hospital since 2005, and an Associate Professor of Medicine at Harvard Medical School. I have taught at Harvard Medical School since 2005. I have performed laboratory and clinical research for 15 years in the fields of travel medicine and enteric infections, focusing on the prevention and management of infectious disease. I have authored over 100 peer-reviewed publications and book chapters. I am a member of the Infectious Diseases Society of America, the American Society of Tropical Medicine & Hygiene, and the International Society of Travel Medicine, among other organizations. In 2007, I received the Maxwell Finland Award for excellence in infectious disease clinical care from the Massachusetts Infection Diseases Society. I completed a fellowship in Infectious Disease at Brigham & Women’s Hospital and Massachusetts General Hospital in 2003 and completed my residency in Internal Medicine at Brigham & Women’s Hospital in 2001. I received a Masters’ Degree in Public Health from the Harvard School of Public Health in 1997. 2. I submit this affidavit in support of federal detainees held at the Plymouth County Correctional Facility during the COVID-19 pandemic. COVID-19 Spreads Easily and Quickly 3. COVID-19 is a highly contagious and potentially deadly disease with no known vaccine or therapeutic that has been proven safe and effective. Approximately 16% of COVID-19 cases

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result in serious illness or death.1 While the elderly and those with pre-existing medical
conditions such as asthma, high blood pressure, immune system conditions, and cardiac or
respiratory conditions, to name a few, are most at risk, the virus can also cause serious harm to
the young and otherwise healthy. From February 12 to March 16, nearly 40% of American
COVID-19 patients who were hospitalized were between the ages of 20 and 54.2
4. COVID-19 is deadly, even compared to other infectious diseases. As of 2:10 p.m. on
April 14, 2020, 24,737 people had died from COVID-19 in the United States and 592,743 cases
of COVID-19 had been confirmed at that time.3 These data reflect a mortality rate of 4.17%.4
To put that in perspective, the mortality rate for tuberculosis in the United States is half that of
COVID-19.5 The mortality rate of seasonal influenza is well below 0.1%.6
5. In many people, COVID-19 can cause fever, cough, and shortness of breath, among other
symptoms. In more serious cases, COVID-19 causes acute respiratory disease syndrome
(“ARDS”), which is life threatening. Fluid leaks into the lungs, impairing the body’s oxygen
supply and resulting in organ failure and sometimes death. Even among those who receive
optimal medical care, the mortality rate is approximately 30% for those suffering from ARDS.
1 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/summary.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fsummary.html (last accessed Apr. 14, 2020) (citing Clinical Characteristics of Coronavirus Disease 2019 in China, https://www.nejm.org/doi/full/10.1056/NEJMoa2002032). 2 Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19), Centers for Disease Control and Prevention (Mar. 27, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm?s_cid=mm6912e2_w. 3 The Massachusetts Department of Public Health (“DPH”) reported that, as of April 14, 2020, Massachusetts, had 28,163 confirmed cases and 957 deaths attributed to COVID-19, a mortality rate of 3.5%. 4 COVID-19 Dashboard, Johns Hopkins University (Apr. 14, 2020), https://www.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b48e9ecf6. 5 Chou-Han Lin, Tuberculosis Mortality: Patient Characteristics and Causes, 14 BMC Infectious Diseases (2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3890594/. 6 World Health Org., Coronavirus Disease 2019 (COVID-19) Situation Report – 46, at 2 (2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200306-sitrep-46-covid19.pdf?sfvrsn=96b04adf_4.
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The virus may also affect the heart, resulting in a condition called myocarditis, or inflammation of the heart muscle. Myocarditis impacts the heart muscle and electrical system, compromising the heart’s ability to pump. There is growing evidence that, in addition to respiratory failure and heart inflammation, the virus causes neurological malfunction, blood clots, intestinal damage, liver problems, and permanent injury to the kidneys. 6. Many individuals who survive COVID-19 face a protracted recovery period and may have long-lasting complications from the disease. COVID-19 can permanently damage the lungs, heart, liver, kidney, brain, and endocrine and blood systems.7 We are learning more about the virus and its long-term consequences for infected individuals every day, including the potential for long-term complications after the immediate infection resolves. 7. The novel coronavirus that causes COVID-19 is known to spread from person to person through respiratory droplets, close personal contact, and contact with contaminated surfaces and objects. The virus, which is at its most contagious early in the course of the disease, is frequently spread by individuals who have no apparent symptoms, that is, patients who are either pre- or asymptomatic. Through the simple act of breathing or touching an object or surface, people can and do inadvertently transmit the virus to others every day. Indeed, the virus can spread swiftly throughout a population before even one positive case is reported.8 It is estimated that, on average, every person who contracts the virus infects another 2 to 2.5 people.9 Because the novel coronavirus can be transmitted by people who are asymptomatic, survive on surfaces
7 Melissa Healy, Coronavirus Infection May Cause Lasting Damage Throughout the Body, Doctors Fear, L.A. Times (Apr. 10, 2020), https://www.latimes.com/science/story/2020-04-10/coronavirus-infection-can-do-lastingdamage-to-the-heart-liver. 8 Kelvin Kai-Wang To et al., Temporal Profiles of Viral Load in Posterior Oropharyngeal Saliva Samples and Serum Antibody Responses During Infection By SARS-Cov-2: An Observational Cohort Study, Lancet (Mar. 23, 2020), https://www.thelancet.com/journals/laninf/article/PIIS1473-3099%2820%2930196-1/fulltext. 9 Q&A: Similarities and Differences – COVID-19 and Influenza, World Health Organization (Mar. 17, 2020), https://www.who.int/news-room/q-a-detail/q-a-similarities-and-differences-covid-19-and-influenza.
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for several days, and remain airborne for several hours, it has a far higher secondary infection rate than seasonal influenza. 8. The virus’s ability to survive for extended periods on surfaces or in the air, coupled with its transmission by those who are asymptomatic or pre-symptomatic, makes scrupulous adoption of recommended preventive measures, of which social distancing is the cornerstone, critical. Without rigorous and consistent implementation of public health experts’ recommended preventive measures, especially social distancing, COVID-19 will continue to spread exponentially.10 Social Distancing 9. The Centers for Disease Control and Prevention (“CDC”) and other public health experts have repeatedly underscored the critical importance of social distancing to combat the spread of COVID-19.11 The CDC thus recommends that everyone consistently maintain a distance of at least six feet between themselves and anyone else who is not a member of their household, and strongly discourages even small group gatherings.12 Pathogen-bearing droplets may even travel farther than six feet.13 While social distancing is an essential step to mitigate the virus’s spread, because the virus can remain airborne and on surfaces for an extended time, many public health
10 See Sheri Fink, Worst Case Estimates for U.S. Coronavirus Deaths, N.Y. Times (Mar. 13, 2020) https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html. 11 Social Distancing, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/social-distancing.html (last accessed Apr. 13, 2020). 12 Id. 13 Lydia Bourouiba, Turbulent Gas Clouds and Respiratory Pathogen Emissions: Potential Implications for Reducing Transmission of COVID-19, JAMA Insights (Mar. 26, 2020), https://jamanetwork.com/journals/jama/fullarticle/2763852.
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experts and governmental authorities have urged people not to leave their homes unless it is
necessary for them to do so.14
Personal Protective Equipment
10. Proper and consistent use of personal protective equipment outside the home is an
important adjunct to social distancing. Face masks may help limit the extent to which carriers of
the coronavirus continue to spread it through airborne transmissions.15 Paper masks must be
used properly to be effective; they should be discarded as soon as they become damp. CDC
recommends that correctional facilities stock PPE and train medical and non-medical staff, and
incarcerated and detained people, on how to properly don, doff, and dispose of PPE.16 But even
if face masks were universally worn, social distancing would remain the paramount measure for
mitigating the spread of COVID-19.17
Personal Hygiene
11. Hand hygiene is also vital to preventing transmission of COVID-19. Many people
contract the virus by touching their faces after touching a surface that has been contaminated
with the virus. Conversely, many people inadvertently spread the virus to others by touching
surfaces or objects with their contaminated hands. Frequent, vigorous hand washing with soap
and hot water throughout the day is therefore essential to reduce the spread of COVID-19.18
14 Press Release, Governor Charlie Baker Orders All Non-Essential Businesses To Cease In Person Operation, Directs the Department of Public Health to Issue Stay at Home Advisory For Two Weeks, Commonwealth of Massachusetts (Mar. 23, 2020), https://www.mass.gov/news/governor-charlie-baker-orders-all-non-essentialbusinesses-to-cease-in-person-operation. 15 Recommendations for Cloth Face Covers, Centers for Disease Control and Prevention (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html. 16 Guidance for Correctional & Detention Facilities, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html#recommended-ppe (last accessed April 13, 2020). 17 Recommendations for Cloth Face Covers, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html (last accessed Apr. 13, 2020). 18 Protect Yourself, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/prevention.html (last accessed Apr. 13, 2020).
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When soap and hot water are not readily available, hand sanitizer consisting of at least 60% alcohol should be used after (and before) touching any potentially contaminated surface or object. Even the slightest lapse in scrupulous hand hygiene can contribute to the exponential spread of the virus. Individuals should wear disposable gloves when handling objects touched by someone in quarantine to protect against infection. Glove use is recommended when cleaning and disinfecting an area or item. Cleaning and Disinfecting 12. Environmental hygiene is another important component of the mitigation strategy for containing the COVID-19 pandemic. Because COVID-19 is frequently contracted by touching contaminated surfaces or objects, thorough cleaning and disinfecting of high-touch surfaces throughout the day can help mitigate the spread of the virus.19 13. Although scrubbing a contaminated surface with soap or detergent and water helps to eliminate some of the viral contamination on these surfaces, it does not kill the coronavirus. Accordingly, the only way to eliminate the risk of infection from contaminated surfaces is to disinfect them continually throughout the day with an EPA-registered disinfectant proven effective in killing the coronavirus. Rigorous adherence to this cleaning regimen will help contain the spread of COVID-19. Screening, Testing and Quarantine 14. The CDC recommends that everybody entering a detention facility be screened for COVID-19.20 The CDC advises detention facilities to ask visitors if they have had COVID-19 symptoms or have had contact with someone they knew to have COVID-19. The CDC also says
19 Detailed Disinfection Guide, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/cleaning-disinfection.html (last accessed April 13, 2020). 20 Id.
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that detention facilities should perform a pre-intake screening and temperature check for all new entrants.21 Those performing screening should wear PPE.22 15. It is important to note, however, that these screening measures will not identify pre- or asymptomatic visitors or visitors who had contact with pre- or asymptomatic people, or the many infected individuals whose symptoms do not include a fever. They also depend on the accuracy of residents’, staff’s and visitors’ self-reporting of symptoms, an inherently unreliable variable. In short, adoption of these screening guidelines is no substitute for social distancing, “a cornerstone of reducing transmission for respiratory diseases such as COVID-19,” hand hygiene, and cleaning and disinfecting surfaces.23 16. CDC guidance also calls for correctional facilities to have a plan in place to isolate confirmed COVID-19 cases and individuals exhibiting COVID-19 symptoms, and to quarantine known close contacts of positive cases.24 The locations for medical isolation and quarantine should be separate. Because there should only be one individual within a given isolation or quarantine location, facilities should be prepared to convert multiple locations to this purpose if numerous individuals require quarantine or isolation simultaneously. Plymouth County Correctional Facility Is Vulnerable to a Widespread Outbreak of COVID-19 17. By their very nature, congregate settings such as correctional facilities, like nursing homes and cruise ships, face an especially high risk of a COVID-19 outbreak. Wherever large multitudes of people are gathered, especially if they remain in close quarters, for prolonged periods of time, the risk of a COVID-19 outbreak increases dramatically. That risk becomes all
21 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html. 22 Id. 23 Id. 24 Id.
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the more acute in correctional facilities, where often only the most minimal standards of sanitation are found, access to personal and environmental cleaning products is limited, medical care is lacking, and many residents already suffer from chronic, often untreated illnesses. In my role triaging infection control for Massachusetts General Hospital, I have already encountered multiple patients who contracted COVID-19 while incarcerated. 18. Based on my review of the (1) affidavits of Jane Peachy, Keith Halpern, Jessica Thrall, Timothy Watkins, and Edward P. Ryan concerning conditions at the Plymouth County Correctional Facility (“Plymouth”) and (2) Sheriff McDonald’s affidavit, declaration and answers to interrogatories and Dr. Lawrence Baker, M.D.’s declaration regarding the policies and practices in place at Plymouth to mitigate the risk of COVID-19 infection, the conditions at Plymouth expose the detainees who reside there to a substantial risk of COVID-19 infection. 19. Based on my review of these materials, and my knowledge, experience, and expertise as an infectious disease specialist, Plymouth has failed to implement several critical measures, recommended by the CDC and public health specialists, that would materially reduce the substantial risk of a widespread outbreak of COVID-19 among detainees at the facility. These deficiencies include:
 Lack of Social Distancing. Many detainees at Plymouth are reportedly held in shared cells or open dormitories where social distancing is infeasible. They reportedly eat their meals communally, oftentimes shoulder-to-shoulder, without any ability to socially distance. Because social distancing is the cornerstone of COVID-19 mitigation, Plymouth’s mitigation measures will remain fatally flawed until it stops housing its detainees in shared cells (by reducing detainee population if necessary) and implements other social distancing measures.
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 Sub-standard Environmental Hygiene. Many detainees at Plymouth must share cells, toilets, showers, and common areas and high-touch surfaces with dozens of other detainees. Based on the affidavits submitted on behalf of detainees, these areas and objects are not cleaned with the requisite frequency to mitigate the spread of COVID-19, and may not be disinfected with any regularity at all. There is also an apparent shortage of cleaning and disinfection supplies available to inmates for their cells.
 Inadequate Supply of Personal Hygienic Products. Detainees at Plymouth reportedly have inadequate access to soap and hand sanitizer. Frequent hand washing is vital to preventing the spread of a highly contagious disease such as COVID-19.
 Insufficient Personal Protective Equipment for Detainees; Inconsistent Use of Personal Protective Equipment by Staff. Earlier this week, Plymouth finally reportedly provided at least some of its federal detainees with one paper mask. This modest step is clearly insufficient, as these masks should not be used over a multi-day period, and should never be used once they become damp, such as from a cough or sneeze. From an infectious disease perspective, the detainees’ insufficient personal protective equipment is especially concerning given that they are unable to engage in social distancing when they must reside in shared cells and eat their meals communally. Both the CDC Massachusetts Department of Public Health (“DPH”) recommend that everyone wear face masks outside the home, especially when social distancing is difficult.25 Many staff, including both correctional officers and medical personnel, likewise reportedly do not wear face masks at the facility, even when they are interacting with detainees, or do so inconsistently. Because Plymouth’s staff move in and out of the facility and interact with
25 Advisory Regarding Face Coverings and Cloth Masks, Mass. Dep’t of Public Health (Apr. 10, 2020), https://www.mass.gov/news/advisory-regarding-face-coverings-and-cloth-masks.
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the outside community, this creates a genuine risk that they could inadvertently introduce the virus and infect detainees within the facility simply by breathing. 20. The Sheriff’s affidavit, declaration, and answer to interrogatories and Dr. Baker’s declaration fail to address Plymouth’s ability to prevent or control a COVID-19 outbreak in several key respects, including, whether the facility’s ventilation system is designed to prevent respiratory droplets from spreading throughout a closed environment; whether the facility quarantines26 those residents potentially infected by COVID-19 separately from those with confirmed cases; and details about the facility’s capacity to provide its residents with immediate medical attention if they develop emergency warning signs for COVID-19, such as trouble breathing, persistent chest pain or pressure, or turning blue in the lips or face.27 21. The record of the conditions at Plymouth leads me to conclude that Defendants are not taking vital steps to prevent and mitigate a COVID-19 outbreak at the facility. Such an outbreak would have disastrous consequences for the facility’s residents and staff, and the broader surrounding community. Because social distancing is the cornerstone of any such mitigation strategy, it is urgent that Defendants institute a comprehensive social distancing regimen at Plymouth that must include the elimination of shared cells if it is to be successful.
26 According to Jermaine Gonsalves, “a special unit, C-1, ha[s] been set up for the quarantine of inmates with symptoms suggesting Coronavirus. He stated that inmates were reluctant to report feeling unwell because they feared being moved into the quarantine unit and being surrounded by sick inmates.” Halpern Aff. ¶ 10. 27 Steps to Help Prevent the Spread of COVID-19 if You Are Sick, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/downloads/sick-with-2019-ncov-fact-sheet.pdf (last accessed April 12, 2020).
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Case 1:20-cv-10753-LTS Document 1-4 Filed 04/17/20 Page 12 of 12 I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 16th day of April, 2020 ______________________________ Regina Celeste LaRocque, MD, MPH
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EXHIBIT E

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AFFIDAVIT OF JONATHAN GIFTOS, M.D. I, Jonathan Giftos, hereby affirm as follows: 1. I am a doctor duly licensed to practice medicine in the State of New York. I am board certified in internal medicine and addiction medicine. 2. I am currently the Medical Director, Addiction Medicine & Drug User Health at Project Renewal and a Clinical Assistant Professor in the Department of Medicine at Albert Einstein College of Medicine. I was previously the Clinical Director of Substance Use Treatment for NYC Health & Hospitals, Division of Correctional Health Services at Rikers Island. In that capacity, I was responsible for the diversion, harm reduction, treatment and reentry services for incarcerated patients with substance use disorders. I further served as the medical director of the Key Extended Entry Program (KEEP), the nation's oldest and largest jail-based opioid treatment program that provides methadone and buprenorphine to incarcerated patients with opioid use disorders. I successfully led an effort to remove non-clinical barriers to opioid treatment program enrollment in 2017, which dramatically expanded treatment access from 25% to over 80%, while also reducing post-release mortality for people with opioid use disorder. 3. I have extensive experience working with vulnerable populations such as the incarcerated and those experiencing homelessness. 4. I submit this affidavit in support of federal detainees held at Plymouth County Correctional Facility in Plymouth, Massachusetts during the COVID-19 pandemic. I. COVID-19 Epidemic 5. On March 11, 2020, the World Health Organization declared that the rapidly spreading outbreak of COVID-19, a respiratory illness caused by a novel coronavirus, is a pandemic,

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announcing that the virus is both highly contagious and deadly.1 To date, the virus is known to
spread from person-to-person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.2 The CDC also warns of “community spread”
where the virus spreads easily and sustainably within a community where the source of the infection is unknown.3 Experts are still learning how it spreads.
6. As of April 16, 2020, novel coronavirus has infected over 2,090,110 people, leading to 139,000 deaths worldwide.4 In the United States, there are at least 605,390 confirmed cases and there have been at least 24,582 deaths.5 There are confirmed coronavirus cases in every state, the
District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands. Id.
7. On March 13, 2020, President Donald Trump declared a national emergency to address the pandemic.6 Massachusetts Governor Charlie Baker declared a state of emergency in the Commonwealth of Massachusetts on March 10, 2020.7 To date, the pandemic has caused the Governor to issue more than 21 emergency orders.8 Those orders range from closing all
1 World Health Organization, Media Briefing on March 11, 2020: https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid19---11-march-2020. 2 Centers for Disease Control and Prevention, Coronavirus Disease 2019: How it Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html 3 Id. 4 Novel Coronavirus Situation Dashboard, World Health Organization https://experience.arcgis.com/experience/685d0ace521648f8a5beeeee1b9125cd. 5 Coronavirus Map: Tracking the Spread of the Outbreak, The New York Times (March 18, 2020), at https://nyti.ms/2U4kmud (updating regularly). 6 Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Conference (March 13, 2020). https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vicepresident-pence-members-coronavirus-task-force-press-conference-3/. 7 https://www.mass.gov/executive-orders/no-591-declaration-of-a-state-of-emergency-to-respond-to-covid-19 8 https://www.mass.gov/info-details/covid-19-state-of-emergency
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elementary and secondary schools to prohibiting on-site consumption of food and beverages to restricting visitor access to nursing homes to prohibiting public gatherings of more than 10 people. Id. On March 23, 2020, Governor Baker ordered all non-essential businesses to close. Id.
8. As of April 15, 2020, there are 29,918 confirmed cases of COVID-19 in Massachusetts.9 There have been 1108 COVID-19 related deaths in Massachusetts. Id.
9. As of April 4, 2020, at least one incarcerated person in Massachusetts has died from COVID-19 related complications.10
10. At least 281 incarcerated people and staff in the Massachusetts prison and jail system have tested positive for coronavirus.11
11. As of April 14, 2020, Massachusetts has the third highest number of reported COVID-19 cases in the United States, after New York and New Jersey.12
12. As of April 13, 2020, the Federal Bureau of Prisons (“BOP”) has reported that at least 388 individuals in BOP custody have tested positive for COVID-19 and 201 BOP staff members have tested positive for COVID-19.
13. As of April 13, 2020, the BOP has reported that thirteen federal inmates have died from COVID-19.
14. There is currently no vaccine or cure. The primary focus is on preventing the spread of the virus at this juncture. To prevent new infections, the Centers for Disease Control and Prevention
9 See COVID-19 Cases, Quarantine and Monitoring (April 4, 2020) https://www.mass.gov/info-details/covid-19cases-quarantine-and-monitoring. 10 First Massachusetts Inmate Dies From COVID-19 (April 4, 2020) https://www.wgbh.org/news/localnews/2020/04/02/coronavirus-infections-continue-to-rise-in-massachusetts-prisons 11 See https://data.aclum.org/sjc-12926-tracker/ 12 See Tracking Covid-19 cases in the US (April 14, 2020) https://www.cnn.com/interactive/2020/health/coronavirus-us-maps-and-cases/
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strongly recommend the following actions: thorough and frequent handwashing, cleaning surfaces with EPA approved disinfectants, keeping at least 6 feet of space between people, and avoiding group settings.13 Social distancing has also been encouraged to slow the rate of COVID-19 infections so that hospitals have the resources to address infected individuals with urgent medical needs.14 The President’s Coronavirus Guidelines for America, to slow the spread of the coronavirus, warns that social gatherings in groups of more than 10 people should be avoided.15 In correctional settings, such sanitation, social distancing, and self-quarantining measures are nearly impossible especially when inmates are routinely shackled and escorted with other prisoners.16
II. Certain Identifiable Populations Are Far More Vulnerable To COVID-19 Than The Population At Large
15. The Centers for Disease Control have identified two groups of people at higher risk of contracting and succumbing to COVID-19: adults over 60 years old and people with chronic medical conditions.17
16. COVID-19 is more dangerous to persons in these high-risk groups than to the general population. Older people who contract COVID-19 are more likely to die than people under the age
13 How to Protect Yourself, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html. 14 Coronavirus, Social Distancing, and Self-Quarantine, Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-social-distancing-andself-quarantine. 15 The President’s Coronavirus Guidelines for America, https://www.whitehouse.gov/wpcontent/uploads/2020/03/03.16.20 coronavirus-guidance 8.5x11 315PM.pdf. 16 See We Are Not a Hospital: A Prison Braces for the Coronavirus, New York Times, March 18, 2020, https://www.nytimes.com/2020/03/17/us/coronavirus-prisons-jails.html. 17 How to Protect Yourself, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html.
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of 60. In a February 29th WHO-China Joint Mission Report, the preliminary mortality rate analyses showed that individuals age 60-69 had an overall 3.6% mortality rate and those 70-79 years old had an 8% mortality rate.18 For individuals 40 years and younger, the mortality rate was as low as .2%. It has been found that older people diagnosed with COVID-19 are more likely to be very sick and require hospitalization to survive because the acute symptoms include respiratory distress, cardiac injury, arrhythmia, septic shock, liver dysfunction, kidney injury and multi-organ failure. Access to a mechanical ventilator is often required. People with chronic medical conditions (no matter their age) are also at significantly greater risk from COVID-19 because their already-weakened systems are less able to fight the virus. These chronic medical conditions include lung disease, cancer, heart failure, cerebrovascular disease, renal disease, liver disease, diabetes, immunocompromising conditions, and pregnancy. Those with pre-existing medical conditions have a higher probability of death if infected. The WHO-China Joint Mission Report provides that the mortality rate for those with cardiovascular disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.19
17. In a March 17th Washington Post article tracking the 100 United States COVID-19 deaths, it is reported that many of the fatalities had underlying medical conditions, which made it harder for their bodies to fight off COVID-19. And nearly all — about 85 percent — were older than 60; about 45 percent were older than 80.20
18 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/ (data analysis based on WHOChina Joint Mission Report, supra). 19 Report of the WHO-China Joint Mission on Coronavirus Disease (COVID-19), https://www.who.int/docs/defaultsource/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf at 12. 20 U.S. Coronavirus Death Toll Reaches 100, The Washington Post, March 17, 2020, at https://www.washingtonpost.com/national/us-coronavirus-death-toll-reaches-100/2020/03/17/f8d770c2-67a8-11eab313-df458622c2cc_story.html.
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III. Correctional Settings Increase The Risk Of Transmission 18. Correctional settings increase the risk of contracting an infectious disease, like COVID-19, due to the high numbers of people with chronic, often untreated, illnesses housed in a setting with minimal levels of sanitation, limited access to personal hygiene, limited access to medical care, and no possibility of staying at a distance from others. Correctional facilities house large groups of inmates together, and move inmates in groups to eat, do recreation, and go to court. They frequently have insufficient medical care for the population, and, in times of crisis, even those medical staff cease coming to the facility. Hot water, soap and paper towels are frequently in limited supply. Inmates, rather than professional cleaners, are responsible for cleaning the facilities and often not given appropriate supplies. This means there are more people who are susceptible to getting infected all congregated together in a context in which fighting the spread of an infection is nearly impossible. 19. Outbreaks of the flu regularly occur in jails, and during the H1N1 epidemic in 2009, many jails and prisons dealt with high numbers of cases.21 20. In New York, statistics gathered by the Legal Aid Society demonstrate that “New York City jails have become the epicenter of COVID-19.”22 Those statistics show that the COVID-19 infection rate in New York City jails is more than seven times greater than in New York City in general and more than fifty times greater than the infection rate across the United States as a whole. Id.
21 Prisons and Jails are Vulnerable to COVID-19 Outbreaks, The Verge (Mar. 7, 2020) at https://bit.ly/2TNcNZY. 22 https://www.legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/
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21. As of April 4, 2020, at least one incarcerated person in Massachusetts has died from COVID-19 related complications.23 At least 56 incarcerated people and staff in the Massachusetts prison and jail system have tested positive for coronavirus.
22. As of April 8, 2020, the Federal Bureau of Prisons has reported that at least 241 individuals in BOP custody have tested positive for COVID-19 and 73 BOP staff members have tested positive for COVID-19.
23. As of April 8, 2020, the BOP has reported that eight federal inmates have died from COVID-19.
IV. Specific Conditions at Plymouth County Correctional Facility 24. Plymouth County Correctional Facility (“PCCF”), is located in Plymouth County. As of April 9, 2020, there have been 1,327 confirmed positive cases of COVID-19 in Plymouth County. 25. According to Plymouth County Sherriff Joseph D. McDonald, Jr., approximately 49.2% of PCCF detainees sleep within six feet of one another. See Exhibit 1 – PCCF Interrogatory Answers. Approximately 56.72% of PCCF detainees eat their meals within six feet of one another. Id. The facility claims that detainees have multiple seating options which provide an opportunity for social distancing. Id. Approximately 47.36% of PCCF detainees are permitted to be within six feet of one another during recreation period. The facility claims that detainees have split recreation periods, which allows for social distancing, and that officers “enforce the importance of such social distancing.” Id.
23 First Massachusetts Inmate Dies From COVID-19 (April 4, 2020) https://www.wgbh.org/news/localnews/2020/04/02/coronavirus-infections-continue-to-rise-in-massachusetts-prisons
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26. PCCF is not regularly testing detainees or staff members for COVID-19. Accordingly, there is no reliable information available regarding the spread of the virus PCCF.
V. Reducing Population Size At Specific Correctional Facilities Is A Crucial Public Health Measure
27. Every effort should be made to reduce chances of exposure to the novel coronavirus; however, given the proximity and high number of inmates, correctional staff, and healthcare workers at detention facilities, including PCCF, it will be extremely difficult to sustain such efforts. Therefore, it is an urgent priority to reduce the number of people in detention facilities, including PCCF, during this national public health emergency.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
____________________ Jonathan M. Giftos, M.D. Dated: April __, 2020
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EXHIBIT F

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Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities

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

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

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

CS 316182-A  03/27/2020

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Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
• In most cases, incarcerated/detained persons are not permitted to leave the facility.
• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.
• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
• Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles.
• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.
• Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.
• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
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This guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
√ Operational and communications preparations for COVID-19
√ Enhanced cleaning/disinfecting and hygiene practices
√ Social distancing strategies to increase space between individuals in the facility
√ How to limit transmission from visitors
√ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages
√ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors
√ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited
√ Healthcare evaluation for suspected cases, including testing for COVID-19
√ Clinical care for confirmed and suspected cases
√ Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting—Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
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Confirmed vs. Suspected COVID-19 case—A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case.
Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed.
Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication.
Staff—In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators.
Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
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The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/ detained persons and staff, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
√ Develop information-sharing systems with partners. ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility.
ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses.
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ο Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff.
ο Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.
√ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19. ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/ or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting. ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care. ο Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity. ο Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes.
√ Coordinate with local law enforcement and court officials. ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.
√ Post signage throughout the facility communicating the following: ο For all: symptoms of COVID-19 and hand hygiene instructions ο For incarcerated/detained persons: report symptoms to staff ο For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor. ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
Personnel Practices
√ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staff to stay home when sick. ο If these policies do not encourage staff to stay home when sick, discuss with the contract company. ο Determine which officials will have the authority to send symptomatic staff home.
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√ Identify staff whose duties would allow them to work from home. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission. ο Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so. ο Put systems in place to implement work from home programs (e.g., time tracking, etc.).
√ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. ο Allow staff to work from home when possible, within the scope of their duties. ο Identify critical job functions and plan for alternative coverage by cross-training staff where possible. ο Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages.
√ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19.
√ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
√ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health.
√ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
√ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs ο Tissues ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. ο Hand drying supplies ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ο Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19
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ο Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when face masks are acceptable alternatives to N95s.
ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated
√ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ο See CDC guidance optimizing PPE supplies.
√ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.
√ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
√ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.
√ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.
Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.
Operations
√ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities
√ Communicate with the public about any changes to facility operations, including visitation programs.
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√ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ Implement lawful alternatives to in-person court appearances where permissible.
√ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms.
√ Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
√ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
√ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs). ο Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
√ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
√ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
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Hygiene
√ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
√ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use.
ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
ο Avoid touching your eyes, nose, or mouth without cleaning your hands first. ο Avoid sharing eating utensils, dishes, and cups. ο Avoid non-essential physical contact.
√ Provide incarcerated/detained persons and staff no-cost access to: ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing.
ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal
√ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.
√ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.
Prevention Practices for Incarcerated/Detained Persons
√ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below).
ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):  Require the individual to wear a face mask.  Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE.  Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.
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ο If an individual is a close contact of a known COVID-19 case (but has no COVID-19 symptoms):  Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care.
√ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: ο Common areas:  Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area) ο Recreation:  Choose recreation spaces where individuals can spread out  Stagger time in recreation spaces  Restrict recreation space usage to a single housing unit per space (where feasible) ο Meals:  Stagger meals  Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table)  Provide meals inside housing units or cells ο Group activities:  Limit the size of group activities  Increase space between individuals during group activities  Suspend group programs where participants are likely to be in closer contact than they are in their housing environment  Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out ο Housing:  If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)  Arrange bunks so that individuals sleep head to foot to increase the distance between them  Rearrange scheduled movements to minimize mixing of individuals from different housing areas ο Medical:  If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.  Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
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√ Communicate clearly and frequently with incarcerated/detained persons about changes to their daily routine and how they can contribute to risk reduction.
√ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
√ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
√ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staff at the first sign of illness
√ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staff
√ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staff home who do not clear the screening process, and advise them to follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.
√ Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staff develop a fever, cough, or shortness of breath while at work: immediately put on a face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
√ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
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√ When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
√ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
Prevention Practices for Visitors
√ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staff performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening.
√ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas.
√ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy.
√ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors.
√ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
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If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits.
√ Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
Operations
√ Implement alternate work arrangements deemed feasible in the Operational Preparedness section.
√ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
√ When possible, arrange lawful alternatives to in-person court appearances.
√ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.)  If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.  If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.  Before releasing an incarcerated/detained individual with COVID-19 symptoms to a communitybased facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
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√ Coordinate with state, local, tribal, and/or territorial health departments. ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. ο When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
√ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.)
√ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
√ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
√ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Confirmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
√ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
√ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible.
√ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
√ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
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ο If cohorting is necessary:  Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.  Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.  Ensure that cohorted cases wear face masks at all times.
√ In order of preference, individuals under medical isolation should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above. ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
If the ideal choice does not exist in a facility, use the next best alternative.
√ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.) ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
√ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
√ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.
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√ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
√ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria.
For individuals who will be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart
For individuals who will NOT be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  At least 7 days have passed since the first symptoms appeared
For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ο The individual has had no subsequent illness
√ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
Cleaning Spaces where COVID-19 Cases Spent Time
Thoroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases.
ο Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
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√ Hard (non-porous) surface cleaning and disinfection ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. ο For disinfection, most common EPA-registered household disinfectants should be effective. Choose cleaning products based on security requirements within the facility.  Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).  Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
√ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:  If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.  Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces.
√ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present.  Follow the manufacturer’s instructions for all cleaning and disinfection products.  Consider use of wipeable covers for electronics.  If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
√ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
√ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
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ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
√ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
Quarantining Close Contacts of COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.
√ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines). ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.
√ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they: ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)
Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
√ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible.
√ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately. ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place. ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.
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ο If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started.
√ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.)
√ In order of preference, multiple quarantined individuals should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements
(NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
√ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1): ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals). ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space. ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason. ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks.
√ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1). ο Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.
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√ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.) ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
√ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period. ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
√ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
√ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
√ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care.
√ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
21

Case 1:20-cv-10753-LTS Document 1-6 Filed 04/17/20 Page 23 of 27
√ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
√ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
√ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
√ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check.
√ Consider additional options to intensify social distancing within the facility.
Management Strategies for Staff
√ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff.
√ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for definition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staff.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/ detained persons may have with confirmed or suspected COVID-19 cases.
√ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
22

Case 1:20-cv-10753-LTS Document 1-6 Filed 04/17/20 Page 24 of 27
ο Implement the above guidance as fully as possible within the correctional/detention context. Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs.
ο Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).
√ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).
√ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.
Clinical Care of COVID-19 Cases
√ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital. ο The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
√ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.
√ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask. ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza).
√ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide.
√ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.
Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
√ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.
23

Case 1:20-cv-10753-LTS Document 1-6 Filed 04/17/20 Page 25 of 27
ο Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95s) for their work responsibilities have been medically cleared, trained, and fit-tested in the context of an employer’s respiratory protection program.
ο For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.
√ Ensure that all staff are trained to perform hand hygiene after removing PPE.
√ If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE.
√ Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency.
√ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response. ο N95 respirator
See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staff anticipate contact with infectious aerosols from a COVID-19 case. ο Face mask ο Eye protection—goggles or disposable face shield that fully covers the front and sides of the face ο A single pair of disposable patient examination gloves
Gloves should be changed if they become torn or heavily contaminated. ο Disposable medical isolation gown or single-use/disposable coveralls, when feasible
 If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label.
 If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staff.
√ Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website: ο Guidance in the event of a shortage of N95 respirators  Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk. ο Guidance in the event of a shortage of face masks ο Guidance in the event of a shortage of eye protection ο Guidance in the event of a shortage of gowns/coveralls
24

Case 1:20-cv-10753-LTS Document 1-6 Filed 04/17/20 Page 26 of 27
Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional Facility during the COVID-19 Response

Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gloves

Gown/ Coveralls

Incarcerated/Detained Persons

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

Incarcerated/detained persons who are confirmed or

suspected COVID-19 cases, or showing symptoms of

–



–

–

–

COVID-19

Incarcerated/detained persons in a work placement

handling laundry or used food service items from a

–

–

–





COVID-19 case or case contact

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

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





more details.

Staff

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

–

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

–

Staff performing temperature checks on any group

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

–

quarantined persons









Staff having direct contact with (including transport)

or offering medical care to confirmed or suspected

**

COVID-19 cases (see CDC infection control guidelines)







Staff present during a procedure on a confirmed

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



–







guidelines)

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

–

–

–





Staff cleaning an area where a COVID-19 case has

Additional PPE may be needed based on

spent time

the product label. See CDC guidelines for





more details.

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

25

Case 1:20-cv-10753-LTS Document 1-6 Filed 04/17/20 Page 27 of 27
Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staff, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. √ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include
the following questions: ο Today or in the past 24 hours, have you had any of the following symptoms?  Fever, felt feverish, or had chills?  Cough?  Difficulty breathing? ο In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
√ The following is a protocol to safely check an individual’s temperature: ο Perform hand hygiene ο Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ο Check individual’s temperature ο If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ο Remove and discard PPE ο Perform hand hygiene
26

Case 1:20-cv-10753-LTS Document 1-7 Filed 04/17/20 Page 1 of 2
EXHIBIT G

Case 1:20-cv-10753-LTS Document 1-7 Filed 04/17/20 Page 2 of 2

Case 1:20-cv-10753-LTS Document 1-8 Filed 04/17/20 Page 1 of 4
EXHIBIT H

Case 1:20-cv-10753-LTS Document 1-8 Filed 04/17/20 Page 2 of 4
AFFIDAVIT OF EDWARD P. RYAN . FR. I, Edward P. Ryan, Jr., hereby state and declare as follows:
1. I am an attorney licensed to practice law in the Commonwealth of Massachusetts. I represent Anthony Baez, a defendant in the criminal matter captioned as United States v. Anthony Baez, Grim. No. 19-CR-40049-TSH pending in the United States District Court for the District of Massachusetts.
2. Mr. Baez is currently being detained at the Plymouth County House of Correction ("Plymouth HOC") pending his trial in the above-referenced criminal action.
3. On April 15, 2020,1 spoke with Mr. Baez regarding the conditions of his confinement at Plymouth HOC in light of the ongoing COVID-19 epidemic. The following paragraphs contain a true and accurate summary of the information provided to me by Mr. Baez relating to those conditions of confinement.
4. Mr. Baez explained that he is currently confined in a cell that he shares with four other detainees. There is one toilet in the cell that is shared by all five men. Given the size of the cell, it is impossible for Mr. Baez to maintain six feet of separation from his other cellmates during the periods when they are in the cell, including while they sleep.
5. There is a total of approximately seventy (70) detainees in the "block" where Mr. Baez and his cellmates are being detained at Plymouth HOC. Mr. Baez and his cellmates are released from their cell for only four hours per day, during which they can go to the common areas of the Plymouth HOC. During those periods, approximately thirty-five (35) detainees on his "block" at the Plymouth HOC can

Case 1:20-cv-10753-LTS Document 1-8 Filed 04/17/20 Page 3 of 4
mingle generally amongst each other. The other approximately thirty-five (35) detainees are allowed out of there cells for a different four-hour period each day. When the detainees are out of their cells, there is no effort to maintain separation of at least six feet from other detainees and staff. No "social distancing" protocols are enforced by Plymouth HOC staff in those common areas.
6. There are eight picnic tables with benches, and no individual seats in the "block" that are shared by the detainees in the section of Plymouth HOC where Mr. Baez is detained. The detainees regularly sit at those tables shoulder-toshoulder. There are also cushion chairs that are side by side that detainees use to watch television or just sit. There are approximately twelve on one side and eight on the other in an area where the corrections officer sits in his cubicle.
7. Mr. Baez stated that he was recently provided with a face mask, but that he is not required to wear it at all times when he is outside of his cell. He is only required to wear it, if for any reason he leaves the block. Some correction officers wear a mask and others do not. Mr. Baez has seen some Plymouth HOC staff recently wearing face masks, but the masks are not worn by all staff. Plymouth HOC staff routinely are within six feet of detainees when they interact with the detainees at the facility.
8. Mr. Baez has not been provided with hand sanitizer. Mr. Baez thinks that guards have hand sanitizer, but they are no allowed to use it. Mr. Baez stated that each man in the cell receives one roll of toilet paper and one bar of soap each week.
!

Case 1:20-cv-10753-LTS Document 1-8 Filed 04/17/20 Page 4 of 4 9. Mr. Baez does not believe that the cell block is cleaned properly. There are no bars of soap, bacterial soap available at the canteen. Signed this 16th day of April, 2020, under thejiains a tfnalties/6f perjury.
Edward P. Ryan, Jr.

Case 1:20-cv-10753-LTS Document 1-9 Filed 04/17/20 Page 1 of 3
EXHIBIT I

Case 1:20-cv-10753-LTS Document 1-9 Filed 04/17/20 Page 2 of 3
AFFIDAVIT OF ATTORNEY JANE PEACHY
1. My name is Jane Peachy. I am an attorney at the Federal Public Defender Office. I represent Jonathan Bermudez in a pending criminal case in the District of Massachusetts, Docket No. 19-CR-10180-LTS.
2. I have filed a motion on behalf of Mr. Bermudez seeking his release from custody based on the COVID-19 pandemic. In preparation for that motion, I spoke to Mr. Bermudez on April 2, 2020, April 10, 2020, and April 16, 2020 about the conditions at the jail where he is detained. The following is the information he relayed to me about the conditions at the jail.
3. Mr. Bermudez is detained pre-trial at the Plymouth County Correctional Facility. He is housed in unit H-3 with other pretrial inmates.
4. As of last week, Mr. Bermudez was assigned to a cell with one other person. The cell is small. There is one set of bunk beds. There is one toilet and one sink in the room, which he shared with his cellmate.
5. Inmates are responsible for cleaning their own cells. They have to ask the guards for cleaning supplies to clean their cells. The guards will give them cleaning spray for this purpose.
6. Up until today, inmates were not allowed to hand sanitizer. Only guards were allowed to have hand sanitizer. Today, some hand sanitizer was made available to inmates.
7. Inmates are given only one bar of soap per week.
8. There are approximately 70-80 other inmates on Mr. Bermudez’s unit. The inmates eat meals on the unit. There are tables on the unit where they eat their meals. Up to four people sit at each table.
9. The inmates on the unit share showers. There are nine showers on the unit. An inmate worker assigned to clean the showers cleans them every few days.
10. Mr. Bermudez recently had an ingrown toenail that became infected. He believes the infection was from the showers. He submitted two medical requests to be seen about the infection with no response. It was only after I contacted the jail on behalf of Mr. Bermudez that he was seen by a nurse and prescribed an antibiotic.
11. On April 2, 2020, Mr. Bermudez’s cellmate went to medical with symptoms of coronavirus. He had been telling Mr. Bermudez for a couple days before that that he had been feeling sick. His cellmate told him previously that he had intestine problems and was taking antibiotics.

Case 1:20-cv-10753-LTS Document 1-9 Filed 04/17/20 Page 3 of 3
12. After Mr. Bermudez’s cellmate was taken to medical, staff told him to pack up his cellmate’s property, which he did, and they removed his property from their cell. Staff did not give Mr. Bermudez gloves to do this. Inmates are not allowed to have gloves at all unless you are a worker.
13. Mr. Bermudez heard rumors that two staff members have tested positive for the virus. When Mr. Bermudez went to medical for his toe, he heard another staff member was sent home with symptoms. Inmates are not being given any information about the spread of the virus in the jail. The only information they get is from word-of-mouth or in the news.
14. One other inmate from Mr. Bermudez’s unit went to medical and has not returned. Staff removed his property from the unit.
15. Since the coronavirus outbreak, Mr. Bermudez and the other inmates on his unit have been locked in their cells for up to 26 hours in a row at a time. They are only given four hours out of their cells a day. Staff continue to come in and out of the jail.
16. Mr. Bermudez has expressed great fear and concern for health and safety due to the conditions at the Plymouth County jail and the coronavirus pandemic.
Signed under the penalties of perjury this 16th day of April 2020: /s/Jane Peachy Jane Peachy
2

Case 1:20-cv-10753-LTS Document 1-10 Filed 04/17/20 Page 1 of 3
EXHIBIT J

Case 1:20-cv-10753-LTS Document 1-10 Filed 04/17/20 Page 2 of 3
AFFIDAVIT OF ATTORNEY KEITH HALPERN I, Keith Halpem, attest: 1. I am an attorney. I represent Jermaine Gonsalves (hereafter “Mr. Gonsalves”) in a pending federal criminal case, United States v. Djuna Goncalves, et al., Grim. No. 18-10468-NMG. 2. Mr. Gonsalves is a pretrial detainee at the Plymouth County House of Correction (hereafter “Plymouth”). He has been held at Plymouth since early January 2019. 3. On April 8, 2020,1 spoke to Mr. Gonsalves on the phone concerning conditions at Plymouth. I affirm that the following paragraphs of this Affidavit accurately state what Mr. Gonsalves told me during this conversation. 4. Mr. Gonsalves stated that he is housed in a cell with one other inmate. There is one bunk unit in the cell. The bunk has two beds, one stacked on top of the other. The beds are less than 6’ apart. It is not possible for Mr. Gonsalves and his cellmate to maintain a distance of 6’ between themselves while in their cell together. 5. Mr. Gonsalves stated that there has been no change in meal conditions due to the pandemic. The number of inmates eating together has not changed. Inmates eat at rectangular tables that seats six, in a room with a number of similar tables. There is no effort to maintain a distance of 6’ between inmates. Rather, inmates are seated immediately next to one another at the tables, with other inmates seated across the table, all within a distance of 6’. 6. According to Mr. Gonsalves, less than half of the correctional officers are wearing masks. There has been no change in the manner in which correctional officers interact with inmates, and no effort to maintain greater physical distance between correctional officers and inmates. Correctional officers are routinely within 6’ of inmates. 7. Mr. Gonsalves stated that inmates have no access to liquid soap or hand sanitizer. Inmates

Case 1:20-cv-10753-LTS Document 1-10 Filed 04/17/20 Page 3 of 3
are provided with one small bar of soap each week. There has been no change in soap access due to the pandemic. 8. Mr. Gonsalves told me that, prior to the pandemic, inmates received two rolls of toilet paper each week. Since the pandemic began, inmates are receiving one roll of toilet paper per week. 9. Mr. Gonsalves stated that Plymouth is a dirty environment, and there have been no visible efforts to improve cleanliness as a result of the pandemic. Plymouth is as dirty as it was before the pandemic. 10. Mr. Gonsalves stated that a special unit, C-l, had been set up for the quarantine of inmates with symptoms suggesting Coronavirus. He stated that inmates were reluctant to report feeling unwell because they feared being moved into the quarantine unit and being surrounded by sick inmates. 11. Mr. Gonsalves stated that there were no efforts being made to keep inmates at least 6’ apart, or to keep inmates and correctional officers at least 6’ apart. 12. Mr. Gonsalves stated that no changes to inmates’ recreation had been made. Inmates have four hours of recreation per day. At recreation, inmates can work out, play basketball, and engage in other activities without regard to how far apart they are from one another, and that inmates are routinely within 6’ of one another.
Signed under the penalties of perjury this day of April 2020.
>
Keith Halpem
2

Case 1:20-cv-10753-LTS Document 1-11 Filed 04/17/20 Page 1 of 3
EXHIBIT K

Case 1:20-cv-10753-LTS Document 1-11 Filed 04/17/20 Page 2 of 3
AFFIDAVIT OF JESSICA THRALL
I, Jessica Thrall, do hereby aver that the following is true, under the penalties of perjury: 1. My name is Jessica Thrall. I am employed at the Federal Public Defender Office as a trial
attorney. 2. On March 20, 2019, I was appointed to represent Mr. Dedrick Lindsey in criminal matter
19-CR-10091-MLW. Mr. Lindsey has at all times during the pendency of this matter been detained that the Plymouth County Correctional Facility. I have visited him there and receive regular calls and mailings from him there. 3. Since the recent COVID-19 outbreak in the United States, I have spoken with Mr. Lindsey regularly concerning his conditions of confinement. 4. Mr. Lindsey is currently in a dorm unit. This is a setting where 6-8 individuals share a living quarters. Their beds are next to one another. Mr. Lindsey is currently sleeping on the bottom bunk. There is no one above him at this time, but there is someone next to him on the same level. The beds are not 6 feet apart. 5. The individuals living in this dorm also share meals together. There are several tables for the men to eat at, but they cannot eat at a table alone as there are not enough tables for everyone. In order to sit at these tables and eat, they must be closer than 6 feet apart. 6. At any given time, additional people could be added to the dorm setting. 7. Mr. Lindsey is permitted to go outdoors for recreation time. However, this “rec time” is shared with people from other dorms or units. Mr. Lindsey chooses not to go outdoors at “rec time” as he will then have to be in proximity with more people than the individuals in his dorm.
-1-

Case 1:20-cv-10753-LTS Document 1-11 Filed 04/17/20 Page 3 of 3

8. Mr. Lindsey reports that the detainees were recently given masks. The guards use masks and gloves with variable frequency depending on who is working that shift.
9. Within the dorm unit, there is a spray bottle of sanitizer that the people on the dorm are allowed to utilize.
10. As of this morning, April 16, 2020, a hand sanitizer bottle was put in the dorm unit. Previously there had been no hand sanitizer.
11. Mr. Lindsey is fearful for his health and is concerned because he cannot control who he shares space with.

Date:

April 16, 2020

Jessica P. Thrall Jessica P. Thrall

-2-

Case 1:20-cv-10753-LTS Document 1-12 Filed 04/17/20 Page 1 of 3
EXHIBIT L

Case 1:20-cv-10753-LTS Document 1-12 Filed 04/17/20 Page 2 of 3
AFFIDAVIT OF ATTORNEY TIMOTHY WATKINS I, Timothy Watkins, attest: 1. I am an attorney. I represent Samuel Baptista (hereafter “Mr. Baptista”) in a pending federal criminal case, United States v. Samuel Jose Baptista, Crim. No. 19-40057-TSH. 2. Mr. Baptista is a pretrial detainee at the Plymouth County House of Correction (hereafter “PCCF”). He has been held at Plymouth since December 2019. 3. On April 10, 2020, I spoke to Mr. Baptista on the phone concerning conditions at PCCF. I affirm that the following paragraphs of this Affidavit accurately state what Mr. Baptista told me during this conversation. 4. Mr. Baptista stated that he is housed in a segregated unit at PCCF. He stated that correctional officers do not maintain six feet of distance between Mr. Baptista and the officers, nor do they maintain six feet of distance between themselves. 5. Mr. Baptista and others in his unit were given one paper mask four days ago. Mr. Baptista was told by PCCF staff to wear the mask when he thinks he should wear it, but that each mask could only be used five times. 6. Mr. Baptista has observed approximately half of correctional officers wearing masks. He has observed the masks worn by the correctional officers to be far more durable and thicker than the one he was given. 7. Mr. Baptista has observed correctional officers to be wearing gloves occasionally. Mr. Baptista was not provided with gloves. 8. Mr. Baptista receives one bar of soap each time he asks for soap. He has not received hand sanitizer. He has asked for hand sanitizer and his request was denied. He has not been given cleaning supplies to clean his unit, his toilet and/or the shower area.

Case 1:20-cv-10753-LTS Document 1-12 Filed 04/17/20 Page 3 of 3
9. Mr. Baptista was housed in the protective custody unit when the COVID-19 pandemic began. The protective custody unit at PCCF is an open cell, dormitory-style format, with no doors, in which detainees sleep within three feet of each other. Mr. Baptista did not observe any changes made within the unit regarding increased hygiene or social distancing after the COVID19 pandemic began, other than a sign which instructed to report someone with COVID-19 symptoms to a correctional officer so that the correctional officer could hand out masks.
10. Mr. Baptista was taken to the medical unit on April 10, 2020 for a heart-related issue. Mr. Baptista observed correctional officers talking to each other within two feet of each other in the medical unit. He observed other detainees cleaning the medical unit without masks or gloves. He was in close proximity and less than six feet from other detainees in the unit. The doctor who treated him had a mask on, but the nurse who treated him did not have a mask.
11 . Mr. Baptista stated that PCCF is extremely dirty and he has not observed any effort to clean the facility in response to the COVID-19 pandemic. He stated he fears for his health, particularly due to certain preexisting medical issues, and believes that if he contracts COVID19, he will die.
Signed under the penalties of perjury this 1£_1;_y of April 2020.
::;::=>&v~
Timothy Watkins, Esq.
2

 
 Case 1:20-cv-10753-LTS Document 6 Filed 04/17/20 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

____________________________________________

)

ANTHONY BAEZ, JONATHAN BERMUDEZ, )

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated;

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

JOSEPH D. MCDONALD, JR., SHERIFF OF

)

PLYMOUTH COUNTY, in his official capacity, )

ANTONE MONIZ, SUPERINTENDENT OF

)

THE PLYMOUTH COUNTY CORRECTIONAL )

FACILITY, in his official capacity, and JOHN and )

JANE DOES, in their individual and official

)

capacities,

)

Defendants-Respondents. )

____________________________________________)

CIVIL ACTION NO: 1:20-cv-10753-LTS

MOTION FOR CLASS CERTIFICATION Petitioners and proposed class members, by and through their undersigned counsel, hereby move this Court for an Order certifying a class pursuant to Fed. R. Civ. P. 23, or in the alternative, to certify a representative habeas class of Petitioners pursuant to United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974). Petitioners request that this Court certify a class of all federal detainees who are now or who will be detained by Respondents at the Plymouth County Correctional Facility in Plymouth, Massachusetts, pending trial or pending sentencing in the United States District Court for the District of Massachusetts. The grounds for this Motion are set forth in the accompanying Memorandum of Law and are further supported by the various Exhibits attached to the Complaint in this action.

Case 1:20-cv-10753-LTS Document 6 Filed 04/17/20 Page 2 of 3

REQUEST FOR HEARING Pursuant to Local Rule 7.1(D), Petitioners respectfully request that the Court mark this motion for hearing for oral argument. As grounds therefor, Petitioners state that oral argument will be of assistance to the Court as the Court considers the arguments set forth in Petitioners Motion for Class Certification and the accompanying Memorandum of Law.
/s/ Daniel J. Cloherty Daniel J. Cloherty

Respectfully submitted,
ANTHONY BAEZ, JONATHAN BERMUDEZ, JERMAINE GONSALVES, and DEDRICK LINDSEY on behalf of themselves and all others similarly situated,
By their attorneys,

/s/ Daniel J. Cloherty Daniel J. Cloherty (BBO #565772) Saraa Basaria (BBO #685705) TODD & WELD LLP One Federal Street, Floor 27 Boston, MA 02110 (617) 720-2626 dcloherty@toddweld.com sbasaria@toddweld.com

/s/Emily Schulman Emily Schulman (BBO #566374) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6077 emily.schulman@wilmerhale.com
David E. Rudin (pro hac vice pending) WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 936-7249 david.rudin@wilmerhale.com

Dated: April 17, 2020

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CERTIFICATE OF SERVICE I, Daniel J. Cloherty, counsel for Petitioners, hereby certify that on this date this document has been filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF); this document is being served by first class mail to the Respondents c/o Patrick Lee, Director of Legal/Civil Process, Plymouth County Sheriff's Department, 24 Long Pond Road, Plymouth, MA 02360 and by email at plee@pscdma.org. I further certify that a copy of this document is also being served on this date by mail to the United States Attorney's Office for the District of Massachusetts, One Courthouse Way, Boston, MA 02210 Attn: Rayford A. Farquhar, Civil Chief, and by email to rayford.farquhar@usdoj.gov.
/s/ Daniel J. Cloherty Daniel J. Cloherty Date: April 17, 2020
3

Case 1:20-cv-10753-LTS Document 7 Filed 04/17/20 Page 1 of 16

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

____________________________________________

)

ANTHONY BAEZ, JONATHAN BERMUDEZ, )

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated;

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

JOSEPH D. MCDONALD, JR., SHERIFF OF

)

PLYMOUTH COUNTY, in his official capacity, )

ANTONE MONIZ, SUPERINTENDENT OF

)

THE PLYMOUTH COUNTY CORRECTIONAL )

FACILITY, in his official capacity, and JOHN and )

JANE DOES, in their individual and official

)

capacities,

)

Defendants-Respondents. )

____________________________________________)

CIVIL ACTION NO. 1:20-cv-10753-LTS

MEMORANDUM OF LAW IN SUPPORT OF PETITIONERS’ MOTION FOR CLASS CERTIFICATION
Introduction This action is filed on behalf of a class of individuals currently being detained by Respondents-Defendants (“Respondents”) at the Plymouth County Correctional Facility (“PCCF”) located in Plymouth, Massachusetts in connection with charges pending trial or sentencing in the United States District Court for the District of Massachusetts. Each member of the proposed class is at grave risk of contracting COVID-19 because of the life-threatening, congregate conditions under which they are confined. Common questions of both fact and law pervade this matter, and Respondents have acted and refused to act on grounds that are generally applicable to the class as a whole, making class certification appropriate here.

Case 1:20-cv-10753-LTS Document 7 Filed 04/17/20 Page 2 of 16
As explained below, the requirements of Federal Rules of Civil Procedure 23(a) and (b) are amply met by the proposed class. The class is sufficiently numerous: approximately one hundred and fifty federally detained individuals are currently being held at PCCF. See Petition1 at ¶139. All members of the class are bound together by common questions of law and fact – most prominently, whether in the face of the lethal COVID-19 pandemic, the current conditions of confinement at PCCF place the detainees’ safety and health at grave risk in a manner that violates the class members’ constitutional rights. The named Petitioners are proper class representatives because their claims are typical of the class members and because they and their counsel will adequately and vigorously represent the class. Finally, Rule 23(b)(2) is satisfied here because the Respondents have “acted or refused to act on grounds that apply generally to the class” through creating and maintaining conditions that put the class at imminent risk of contracting COVID-19, the deadly virus that is currently sweeping the globe.
The Centers for Disease Control and Prevention (“CDC”) has advised that COVID-19 is thought to spread primarily from person-to-person, between people who are in close contact with one another (within about 6 feet), and through respiratory droplets produced when someone speaks, coughs, or sneezes, including the touch of shared surfaces. Id. at ¶28. Accordingly, the CDC has made clear that the only known effective measures to reduce the risk of contracting COVID-19 are social distancing and rigorous attention to hygiene. See CDC, Coronavirus Disease (COVID-19): How to Protect Yourself, (Mar. 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html. (“The best way to prevent illness is to avoid being exposed to this virus.”). The calls for individuals and organizations throughout the world to adopt these measures has been uniform, and has led to entire nations,
1 “Petition” refers to the Class Action Petition Seeking Writ of Habeas Corpus Under 28 U.S.C. §2241 and Complaint for Declaratory and Injunctive Relief (filed April 17, 2020).
2

Case 1:20-cv-10753-LTS Document 7 Filed 04/17/20 Page 3 of 16
states, and cities being locked down, in an extraordinary and unprecedented battle to stop the spread of this deadly virus. Indeed, 95% of the American population is under strict instructions to stay at home. Id. at ¶40.
Medical experts have recognized the obvious risk that is presented in congregate environments similar to the facilities operated by Respondents. Dr. Josiah Rich, a Professor of Medicine at Brown University and the co-founder of the Center for Prisoner Health and Human Rights at The Miriam Hospital, has explained that, in light of the significant and heightened threat posed by COVID-19 to individuals in incarcerated settings, “it is imperative to scale up efforts to “decarcerate,” or release, as many detainees as possible.” Id. at ¶75; Petition at Exhibit C. He opines that “public safety will be at even greater peril if we fail to mitigate risks associated with confining too many people in correctional facilities during a pandemic.” Id. Dr. Regina Celeste Larocque, an associate physician of infectious disease at Massachusetts General Hospital and an Instructor at Harvard Medical School has explained that correctional facilities like PCCF “face a very high risk of a COVID-19 outbreak.” Id. at ¶74; Petition at Exhibit D. She explains that “such an outbreak would have disastrous consequences for the facility’s residents and staff, and the broader community,” and it therefore “is urgent that [Respondents] institute a comprehensive social distancing regimen at [PCCF] that must include elimination of shared cells if it is to be successful.” Id. Dr. Jonathan Giftos, a current professor in the Department of Medicine at Albert Einstein College of Medicine and a former Clinical Director of Substance Use Treatment for NYC Health and Hospitals, Division of Correctional Health Services at Rikers Island has recommended that “given the proximity and high numbers of inmates correctional staff and healthcare workers at pretrial detention facilities . . . it is an urgent priority to reduce the number
3

Case 1:20-cv-10753-LTS Document 7 Filed 04/17/20 Page 4 of 16
of people in detention facilities, including PCCF, during this national public health emergency.” Id. at ¶75; Petition at Exhibit E.
At PCCF, however, detention for federal detainees is largely business as usual. Respondents have continued to confine detainees in close proximity, without adequate soap, disinfectant, sanitizer, toilet paper, and other daily anti-viral necessities. See generally Petition at Exhibits H, I, J, K (detailing ongoing conditions of confinement at PCCF experienced by Petitioners and federal detainees Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, Dedrick Lindsey). The various Affidavits submitted by Petitioners include descriptions of cells and other sleeping quarters that routinely require detainees to sleep closer than six feet to each other. See, e.g., Exhibit H ¶ 4 (description from Petitioner Baez of a cell shared with four other detainees where it is impossible to maintain six feet of separation). Petitioners also describe routinely eating at tables that require detainees to be closer than six feet apart. See, e.g., Exhibit K ¶ 4 (description by Petitioner Lindsay of tables that require detainees to eat in close proximity to each other).
Several recent court rulings have explained the significant health risks—to inmates, guards, and the outside community at large—created by prison populations in the face of the COVID-19 epidemic. See, e.g., Jimenez v. Wolf, No. 18-10225-MLW (D. Mass. Mar. 26, 2020) (ordering release of immigrant detainee in the midst of the COVID-19 pandemic and noting that “being in a jail enhances risk” and that in jail “social distancing is difficult or impossible”); United States v. Stephens, No. 15-cr-95-AJN, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (ordering the release of inmate in Federal Bureau of6 Prisons custody due, in part, to risk posed by COVID-19 in the facility); In the Matter of the Extradition of Alejandro Toledo Manrique, Case No. 19-mj-71055, 2020 WL 1307109, at *1 (N. D. Cal. March 19, 2020) (ordering change to conditions of bail for an individual to postpone incarceration, in part in light of risk of vulnerability to the coronavirus) United States v. Barkman, No. 3:19-cr-0052-RCJ-WGC, 2020
4

Case 1:20-cv-10753-LTS Document 7 Filed 04/17/20 Page 5 of 16
U.S. Dist. LEXIS 45628 (D. Nev. Mar. 17, 2020). On March 22, 2020, the New Jersey Supreme Court issued a consent order for the presumptive release of approximately 1,000 persons by March 26, 2020.
Most recently, in Savino v. Hosgson, No. 20-10617-WGY, 2020 (D. Mass.) (Order of April 8, 2020), a Court in this District certified a class action brought by Immigration and Customs Enforcement (“ICE”) detainees at the Bristol County House of Correction addressing the conditions of confinement at that facility. In that Order, the Court recognized the “especially grim moment” presented by the COVID-19 pandemic, and has certified a class in order to address the significant and serious concerns regarding “the health and safety of the petitioners – as well as the other inmates, staff and the public.” Id. at 1-2. Those very same concerns are presented in this action.
I. PROPOSED CLASS DEFINITION Petitioners propose to represent a Class of all federal detainees who are now or will be held by Respondents-Defendants at the Plymouth County Correctional Facility (“PCCF”), a facility located in Plymouth, Massachusetts. The proposed Class includes federal detainees being held or to be held at PCCF prior to trial in the United States District Court for the District of Massachusetts, as well as federal detainees who have plead or have otherwise been found guilty of certain criminal offenses but have not yet been sentenced. See Petition at ¶ 138.
II. PROPOSED CLASS REPRESENTATIVES The proposed class representatives are Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves and Dedrick Lindsey, all of whom are currently detained at PCCF in connection with criminal charges pending in the United States District Court for the District of Massachusetts. See Petition at Exhibits H, I, J, K. Petitioner Baez is a defendant currently being detained at PCCF as he awaits trial in a criminal matter pending in the United States District Court for the District of Massachusetts. See
5

Case 1:20-cv-10753-LTS Document 7 Filed 04/17/20 Page 6 of 16
Petition, Exhibit H at ¶ 1. Mr. Baez is currently confined to a cell in PCCF that he shares with four other detainees. Id. ¶ 4. The detainees share the same toilet. Id. In light of the size of the cell, it is impossible for Mr. Baez to maintain six feet of separation from his other cellmates. Id. ¶¶ 5-6. Mr. Baez has not experienced any enforcement of “social distancing” protocols when he has been out of his cell in the common areas for at PCCF. Id. He has also had limited access to hand sanitizer, toilet paper and soap. Id. ¶ 8
Petitioner Bermudez is a defendant currently being detained at PCCF as he awaits trial in a criminal matter pending in the United States District Court for the District of Massachusetts. See Petition, Exhibit I at ¶ 1. Mr. Bermudez has been assigned to a cell with one other individual. Id. ¶ 4. The cell is small, and the two detainees share the same toilet. Id. Mr. Bermudez has had limited access to soap and hand sanitizer. Id. ¶¶ 6-7. He remains fearful for his health and safety at PCCF due to the conditions at the facility and the coronavirus pandemic. Id. ¶ 16.
Petitioner Gonsalves is a defendant currently being detained at PCCF as he awaits trial in a criminal matter pending in the United States District Court for the District of Massachusetts. See Petition, Exhibit J at ¶ 1. Mr. Gonsalves is housed in a cell with another inmate. Id. ¶ 4. It is not possible for Mr. Gonsalves and his cellmate to maintain a distance of six feet when they are in the cell together. Id. Mr. Gonsalves has not observed any effort at PCCF to enforce social distancing between detainees at meals or in other common areas of the facility. Id. ¶¶ 5-6. He describes PCCF as “a dirty environment” and states that “there have been no visible efforts to improve cleanliness as a result of the pandemic.” Id. ¶ 9.
Petitioner Lindsey is a defendant currently being detained at PCCF as he awaits trial in a criminal matter pending in the United States District Court for the District of Massachusetts. See Petition, Exhibit K at ¶ 2. Petitioner Lindsey is currently residing in a “dorm unit” at PCCF,
6

Case 1:20-cv-10753-LTS Document 7 Filed 04/17/20 Page 7 of 16
where 6-8 individuals share the same living quarters. Id. ¶ 4. The beds in the “dorm unit” are next to one another and are not six feet apart. Id. The men living in his unit share meals at tables where they cannot be more than six feet apart. Id. ¶ 5. Mr. Lindsey is fearful for his health at PCCF due to his regular exposure to the other individuals in the unit he shares space with. Id. ¶ 11.
ARGUMENT Petitioners seek certification of the class described above under Federal Rule of Civil Procedure 23. “By its terms, [Rule 23] creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). Class certification is thus appropriate where the proposed class satisfies the four requirements of Rule 23(a) – numerosity, commonality, typicality, and adequacy of representation – and at least one of the categories of Rule 23(b). These criteria are met here, where the numerous civil immigration detainees who form the proposed class are all being held by one institution and uniformly placed at risk of contracting the COVID-19 virus due to their conditions of confinement. Actions such as the instant one are particularly amenable to class treatment. Rule 23 was enacted to “facilitate the bringing of class actions in the civil-rights area.” 7A Wright & Miller, Federal Practice & Procedure §1775 (3d ed. 2018). The arguments in favor of class certification are especially strong in this context, where individual class members are unlikely to be able to pursue their claims individually. Even under typical circumstances, federal detainees are hardpressed to bring their own civil claims, since they are all detained, and many do not speak English. These difficulties are compounded even further in the current moment, when Massachusetts (like much of the rest of the world) is essentially on lock-down. Class
7

Case 1:20-cv-10753-LTS Document 7 Filed 04/17/20 Page 8 of 16
certification is particularly appropriate here, and all the requisite elements of Rule 23 have been met. I. The Proposed Class Meets the Requirements of Rule 23(a).
A. The proposed class is so numerous that joinder would be impractical. The proposed class satisfies the requirement that the class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The First Circuit has recognized that this is only a “low threshold,” Garcia-Rubiera v. Calderon, 570 F.3d 443, 460 (1st Cir. 2009). “[A] class size of forty or more will generally suffice in the First Circuit.” Reid, 297 F.R.D. at 189. Here, on information and belief, there are currently more than one hundred and fifty (150) federal detainees who are being housed at PCCF. See Petition at ¶ 87. Many of these detainees are necessarily indigent and lack the financial resources to bring individual claims. Torrezani v. VIP Auto Detailing, Inc., 318 F.R.D. 548, 554 (D. Mass. 2017) (class certification is favored where the Court “can reasonably infer that substantially all of the class members have limited financial resources....”). Moreover, while the pace of arrests and detentions in this District may have slowed, new federal detainees may continue to be admitted to PCCF, rendering the current number of detainees “merely the floor for this numerosity inquiry.” Reid, 297 F.R.D. at 189. The fact that future detainees form a part of the proposed class makes joinder, already an infeasible option, that much more impracticable. Id. B. The proposed class representatives present issues of fact and law in common
with the class. Rule 23(a)(2) requires that “questions of law or fact” be “common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality requires the identification of an issue that by its nature “is capable of classwide resolution—which means that determination of its truth or falsity will resolve an
8

Case 1:20-cv-10753-LTS Document 7 Filed 04/17/20 Page 9 of 16
issue that is central to the validity of each one of the claims in one stroke.” Dukes v. Wal-Mart Stores, Inc., 564 U.S. 338, 350 (2011). A single common issue is sufficient to establish commonality. Id. at 359 (“We quite agree that for purposes of Rule 23(a)(2) even a single common question will do....”) (internal quotation marks, brackets, and citations omitted). For this reason, the First Circuit has recognized that, like numerosity, the commonality requirement is “a low bar....” In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 19 (1st Cir. 2008).
This case satisfies the requirement of at least “a single common question” that is shared by all members of the proposed class. Among others: Whether the conditions of confinement at PCCF, under the current conditions and in light of the COVID-19 pandemic, render class members’ confinement a punishment that violates constitutional standards. All of the class members either have been, or will be, subjected to these common conditions, and a determination that Respondents’ conduct is unconstitutional will therefore “resolve an issue that is central to the validity” of each and every class member’s detention. Dukes, 564 U.S. at 350 (2011).
The fact that certain details relating to their individual conditions of confinement might vary between class members does not defeat commonality. Reid, 297 F.R.D. at 191 (class certification granted despite individual differences among class members, where common issues pervade). And in fact, conditions experienced at PCCF by the proposed class representatives are shared with other members of the proposed class. Since the COVID-19 epidemic began, PCCF has continued to confine detainees in close proximity, without adequate soap, toilet paper, and other daily necessities. See Petition at Exhibit H, ¶4, 5-6, 8; Exhibit I, ¶4, 6, 7, 16; Exhibit J, ¶4, 5-6, 9; Exhibit K, ¶4, 5, 11.
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Indeed, “social distancing” is essentially impossible for all of the class members, just as it is for the proposed class representatives. See Petition at Exhibit H, ¶4, 5-6; Exhibit I, ¶8-9; Exhibit J, ¶4-5; Exhibit K, ¶4-5. Beds are in close proximity to each other and meals are eaten in close quarters. Id. Basic hygiene protections are largely unavailable. See Petition at Exhibit H, ¶8-9; Exhibit I, ¶5-7,9-10; Exhibit J, ¶7-9; Exhibit K, ¶9. While the rest of the country scours grocery store shelves for Purell, the class members lack even the basics of adequate soap and toilet paper. Id.
As courts have repeatedly recognized, even under the more stringent standards applicable to class actions that seek damages under Rule 23(b)(3), class action treatment is appropriate despite the existence of individual differences. Tyson Foods, Inc. v. Bouaphakeo, --- U.S. ---, 136 S.Ct. 1036, 1045 (2016) (“When one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.”) (internal quotation marks and citations omitted). Where, as here, the commonalities are readily apparent, Rule 23 is amply satisfied.
C. The class representatives’ claims are typical of those of the class. Where commonality looks to the relationship among class members generally, typicality under Rule 23(a)(3) focuses on the relationship between the proposed class representative and the rest of the class. See George v. Nat’l Water Main Cleaning Co., 286 F.R.D. 168, 176 (D.Mass. 2012) (citing 1 William B. Rubenstein, Newberg on Class Actions § 3:26 (5th ed. 2012)). In practice, however, the analysis of typicality and commonality “tend to merge.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). To satisfy Rule
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23(a)(3), “a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Id. at 156.
Typicality is “‘not highly demanding’ because ‘the claims only need to share the same essential characteristics, and need not be identical.’” Payne v. Goodyear Tire & Rubber Co., 216 F.R.D. 21, 24-25 (D.Mass. 2003), quoting 5 Moore’s General Practice § 23.24[4]. “For purposes of demonstrating typicality, ‘[a] sufficient nexus is established if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.’” In re Relafen Antitrust Litig., 231 F.R.D. 52, 69 (D.Mass. 2005), quoting In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 686 (S.D. Fla. 2004).
Here, the interests of the proposed class representatives and the proposed class members are aligned. Cf. Faherty v. CVS Pharmacy, Inc., 2011 U.S.Dist.LEXIS 23547, at *6 (D.Mass., March 9, 2011) (noting that the alignment need not be perfect). The proposed class representatives are members of the class, have suffered the same injuries as the proposed class members, and have been injured by Defendants’ actions and inactions that have led to conditions of confinement that threaten the health and safety of all class members. Under such circumstances, the representative’s claims are “obviously typical of the claims ... of the class,” and satisfy Rule 23(a)(3). See Baggett v. Ashe, 2013 U.S.Dist.LEXIS 73202, at *2 (D. Mass. May 23, 2013); see also Armstrong v. Davis, 275 F.3d 849, 869 (9th Cir. 2001) (typicality requirement is satisfied when “the cause of the injury is the same—here, the Board’s discriminatory policy and practice”).
There is, moreover, no risk that issues involving the named Plaintiffs’ individual claims will impede their litigation on behalf of the class. Because the named Plaintiffs are challenging the same practices and seeking the same relief without regard to the outcome of their own efforts
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to obtain release from unconstitutional conditions of confinement, they “can fairly and adequately pursue the interests of the absent class members without being sidetracked by [their] own particular concerns.” In re Credit Suisse-AOL Sec. Litig., 253 F.R.D. 17, 23 (D.Mass. 2008).
D. The proposed class representatives and class counsel can adequately represent the class.
Finally, the named plaintiffs and their counsel will “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Two factors must be satisfied to fulfill this prerequisite: “(1) the absence of potential conflict between the named plaintiff and the class members and (2) that counsel chosen by the representative parties is qualified, experienced and able to vigorously conduct the proposed litigation.” Adair v. Sorenson, 134 F.R.D. 13, 18 (D. Mass. 1991), quoting Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985) (internal quotations omitted).
Here, “the interests of the representative party will not conflict with the interests of any of the class members,” Andrews v. Bechtel Power Corp., 780 F.3d 124, 130 (1st Cir. 1985), because – as already explained – those interests are aligned. The named Plaintiffs have alleged the same injuries, arising from the same conduct, and they seek the same injunctive and declaratory relief, which will apply equally to the benefit of all class members.
In addition, “counsel chosen by the representative party is qualified, experienced and able to vigorously conduct the proposed litigation.” Id. The Petitioners are represented by pro bono attorneys from WilmerHale LLP and Todd & Weld LLP. Collectively, counsel has significant experience in the areas of criminal law, constitutional law, and class action litigation. For the same reasons, counsel also satisfy the requirements of Rule 23(g) and should be appointed as class counsel.
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II. The Proposed Class Meets the Requirements of Rule 23(b) “In addition to meeting the four requirements of Rule 23(a),” the Plaintiffs “must show
that the proposed class falls into one of the three defined categories of Rule 23(b).” Reid, 297 F.R.D. at 192. Here, the most applicable category is described in Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, so that final injunctive relief or corresponding declaratory relief is appropriate with respect to the class as a whole.”
The “prime examples” of Rule 23(b)(2) cases, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997), are cases like this one, where the claim asserts that the Respondents have “engaged in unlawful behavior towards a defined group.” Reid, 297 F.R.D. at 193. The rule applies, moreover, where “a single injunction or declaratory judgment would provide relief to each member of the class” (as opposed, for example, to cases in which each class member would need an individual injunction or declaration, or in which each class member would be entitled to an individualized award of money damages). Dukes, 564 U.S. at 360-61.
The claims asserted in the Petition and Complaint satisfy these requirements. Respondents have engaged in unconstitutional behavior towards the entire class. Every member of the class is at imminent risk of being infected by COVID-19, due to their conditions of confinement at PCCF. And, because every member of the class is entitled to relief from these unconstitutional conditions, an appropriate injunction or declaration will provide relief on a class-wide basis. “The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted – the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them. Dukes, 564 U.S. at 360; see also Savino, supra, at 24-25 (explaining that a uniform remedy may be possible in
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Case 1:20-cv-10753-LTS Document 7 Filed 04/17/20 Page 14 of 16 proposed class action “whether in the form of declaratory relief or . . . an injunction ordering the government to reduce crowding of Detainees”) (citing Brown v. Plata, 563 U.S. 493, 502 (2011)).
CONCLUSION Plaintiffs respectfully ask the Court to: (1) Certify a class consisting all federal detainees who are now or will be held by Respondents-Defendants at the Plymouth County Correctional Facility (“PCCF”), a facility located in Plymouth, Massachusetts; (2) Appoint named Petitioners as class representatives; and (3) Appoint undersigned counsel as class counsel in this action.
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Respectfully submitted,
ANTHONY BAEZ, JONATHAN BERMUDEZ, JERMAINE GONSALVES, and DEDRICK LINDSEY on behalf of themselves and all others similarly situated,
By their attorneys,

/s/ Daniel J. Cloherty Daniel J. Cloherty (BBO #565772) Saraa Basaria (BBO #685705) TODD & WELD LLP One Federal Street, Floor 27 Boston, MA 02110 (617) 720-2626 dcloherty@toddweld.com sbasaria@toddweld.com

/s/Emily Schulman Emily Schulman (BBO #566374) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6077 emily.schulman@wilmerhale.com
David E. Rudin (pro hac vice pending) WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 936-7249 david.rudin@wilmerhale.com

Dated: April 17, 2020

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CERTIFICATE OF SERVICE I, Daniel J. Cloherty, counsel for Petitioners, hereby certify that on this date this document has been filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF); this document is being served by first class mail to the Respondents c/o Patrick Lee, Director of Legal/Civil Process, Plymouth County Sheriff's Department, 24 Long Pond Road, Plymouth, MA 02360 and by email at plee@pscdma.org.
I further certify that a copy of this document is also being served on this date by mail to the United States Attorney's Office for the District of Massachusetts, One Courthouse Way, Boston, MA 02210 Attn: Rayford A. Farquhar, Civil Chief, and by email to rayford.farquhar@usdoj.gov.
/s/ Daniel J. Cloherty Daniel J. Cloherty Date: April 17, 2020
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 Case 1:20-cv-10753-LTS Document 9 Filed 04/17/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

____________________________________________

)

ANTHONY BAEZ, JONATHAN BERMUDEZ,

)

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated;

)

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

JOSEPH D. MCDONALD, JR., SHERIFF OF

)

PLYMOUTH COUNTY, in his official capacity,

)

ANTONE MONIZ, SUPERINTENDENT OF THE )

PLYMOUTH COUNTY CORRECTIONAL

)

FACILITY, in his official capacity, and JOHN and )

JANE DOES, in their individual and official

)

capacities;

)

)

)

Defendants-Respondents.

)

)

____________________________________________ )

Case No. 1:20-cv-10753

APPLICATION FOR AN EMERGENCY TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTIVE RELIEF Pursuant to Fed. R. Civ. P. 65 and this Court’s inherent authority to provide effective habeas relief under 28 U.S.C. § 2241, Petitioners move for the issuance of an order temporarily restraining Respondents, and preliminary injunctive relief on behalf of themselves and all other similarly situated federal pretrial detainees and prisoners who are in custody at Plymouth County Correctional Facility in Plymouth, Massachusetts (“Plymouth”). Specifically, Petitioners request that the government be ordered to response to this petition at the earliest practicable date, but in no event later than April 21, 2020.
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Case 1:20-cv-10753-LTS Document 9 Filed 04/17/20 Page 2 of 4
Petitioners further request that this Court schedule a hearing on this matter at the earliest practicable date and that this Court:
a. Order Respondents to immediately take all actions to reduce the federal detainee population at Plymouth by releasing a sufficient number of federal detainees from the facility in order to ensure the health and safety of all members of the Class;
b. Appoint an expert under Federal Rule of Evidence 706 to make recommendations to the Court regarding how many and which class members to order released so as to ensure that the number of detainees remaining at Plymouth can be housed consistently with CDC guidance on best practices to prevent the spread of COVID-19, including the requirement that detainees be able to maintain six feet of space between them and further order that such recommendations take into account CDC guidance concerning health factors that put individuals at elevated risk of death from COVID-19;
c. Require Respondents to adopt the policies and procedures detailed in the Memorandum of Law, and appoint an independent monitor with medical expertise and provide the monitor with unfettered access to medical units, confidential communication with detained individuals in and out of quarantine, and surveillance video of public areas of the facilities. In support of this Application, Petitioners rely on the accompanying Memorandum as well as their Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief and supporting affidavits.
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/s/ Daniel Cloherty Daniel J. Cloherty (BBO # 565772) Saraa Basaria (BBO # 685705) TODD & WELD LLP One Federal Street, 27th Floor Boston, MA 02110 (617) 720-2626 dcloherty@toddweld.com sbasaria@toddweld.com

/s/ Emily Schulman Emily R. Schulman (BBO #566374) Adam W. McCall (pro hac vice pending) WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6077 emily.schulman@wilmerhale.com adam.mccall@wilmerhale.com
David E. Rudin (pro hac vice pending) WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 937-7249 david.rudin@wilmerhale.com
Attorneys for Anthony Baez, Jonathan
Bermudez, Jermaine Gonsalves, and
Dedrick Lindsey and the proposed class

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Case 1:20-cv-10753-LTS Document 9 Filed 04/17/20 Page 4 of 4
RULE 7.1(A)(2) CERTIFICATE I, Emily R. Schulman, hereby certify that on April 17, 2020, I conferred in good faith with counsel for the Respondents to discuss whether it would be possible to resolve or narrow the issues that this Motion presents.
/s/ Emily Schulman Emily R. Schulman CERTIFICATE OF SERVICE I, Emily R. Schulman, counsel for Petitioners, hereby certify that this document has been filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF); this document is being sent by first class mail to the Respondents c/o Patrick Lee, Director of Legal/Civil Process, Plymouth County Sheriff's Department, 24 Long Pond Road, Plymouth, MA 02360 and by email at plee@pscdma.org and to Rayford Farquhar, AUSA, United States Attorney’s Office, One Courthouse Way, Boston, MA 02210 and by email at Rayford.Farquhar@usdoj.gov. /s/ Emily Schulman Emily R. Schulman
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Case 1:20-cv-10753-LTS Document 10 Filed 04/17/20 Page 1 of 48

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

____________________________________________

)

ANTHONY BAEZ, JONATHAN BERMUDEZ,

)

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated;

)

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

JOSEPH D. MCDONALD, JR., SHERIFF OF

)

PLYMOUTH COUNTY, in his official capacity,

)

ANTONE MONIZ, SUPERINTENDENT OF THE )

PLYMOUTH COUNTY CORRECTIONAL

)

FACILITY, in his official capacity, and JOHN and )

JANE DOES, in their individual and official

)

capacities;

)

)

)

Defendants-Respondents.

)

)

____________________________________________ )

Case No. 1:20-cv-10753

PETITIONERS AND PROPOSED CLASS MEMBERS’ MEMORANDUM IN SUPPORT OF THEIR APPLICATION FOR AN EMERGENCY TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION

Case 1:20-cv-10753-LTS Document 10 Filed 04/17/20 Page 2 of 48
TABLE OF CONTENTS Page
PRELIMINARY STATEMENT .....................................................................................................1 FACTUAL BACKGROUND ..........................................................................................................4
I. COVID-19 poses a grave risk of serious injury or death to anyone who is infected.......4 II. Jails and prisons are particularly vulnerable to COVID-19 and pose a public health risk
to the broader community. ...............................................................................................5 III. Respondents have not implemented key measures at Plymouth that public health
experts deem critical to mitigating the spread of COVID-19. .........................................9 A. Petitioners are unable to take proper social distancing measures to protect
themselves from infection..........................................................................................10 B. Plymouth correctional officers do not utilize personal protective equipment (“PPE”),
and Plymouth does not provide Petitioners with PPE either. ....................................11 C. Respondents have maintained dangerous, unsanitary conditions. .............................13 D. Petitioners in Respondents’ custody are not properly quarantined after potential
exposure to COVID-19. .............................................................................................14 E. Petitioners do not have immediate access to health care. ..........................................15 ARGUMENT .................................................................................................................................16 A. Petitioners and the proposed class will likely succeed on their Fifth and Eighth
Amendment claims because Respondents have failed to protect their health and safety. .........................................................................................................................17 B. Petitioners and proposed class members will suffer irreparable harm. .....................35 C. An injunction furthers the public interest and the equities favor Petitioners and the proposed class. ...........................................................................................................37 CONCLUSION ..............................................................................................................................39
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TABLE OF AUTHORITIES

CASES

Page(s)

Alderson v. Concordia Parish Correrctional Facility, 848 F.3d 415 (5th Cir. 2017) .............................................................................................30

Austin v. Pennsylvania Department of Corrections, No. 90-cv-7497 (JED), 1992 WL 277511 (E.D. Pa. Sept. 29, 1992) ................................35

Basank v. Decker, No. 20-cv-2518 (AT), 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020).............25, 28, 33, 34

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

Boone v. Brown, No. 05-cv-750 (AET), 2005 WL 2006997 (D.N.J. Aug. 22, 2005)...................................35

Boston Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d 1 (1st Cir. 2008) ..................................................................................................16

Burrell v. Hampshire County, 307 F.3d 1 (1st Cir. 2002) ..................................................................................................17

Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) ...........................................................................................30

Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151 (1st Cir. 2004) ........................................................................................16, 34

City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983)...........................................................................................................18

Committee for Public Counsel Services v. Chief Justice of Trial Court, No. SJC-12926, 2020 WL 1659939 (Mass. Apr. 3, 2020) ........................................ passim

Couchon v. Cousins, No. 17-cv-10965-RGS, 2018 WL 4189694 (D. Mass. Aug. 31, 2018) .............................30

Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017)...........................................................................................18, 30

Davis v. Ayala, 576 U.S. 257, 135 S. Ct. 2187 (2015)................................................................................36

Devitri v. Cronen, 289 F. Supp. 3d 287 (D. Mass. 2018) ..........................................................................16, 36
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Farmer v. Brennan, 511 U.S. 825 (1994)...............................................................................................17, 18, 31
Gonzalez-Droz v. Gonzalez-Colon, 573 F.3d 75 (1st Cir. 2009) ................................................................................................16
Helling v. McKinney, 509 U.S. 25 (1993).................................................................................................18, 24, 26
Hernandez v. County of Monterey, 110 F. Supp. 3d 929 (N.D. Cal. 2015) ...............................................................................33
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996).................................................................................................36
Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466 (2015)....................................................................18, 29, 30
Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014) ................................................................................................29
Leite v. Bergeron, 911 F.3d 47 (1st Cir. 2018) ................................................................................................17
Levesque v. Maine, 587 F.2d 78 (1st Cir. 1978) ................................................................................................16
Miranda v. County of Lake, 900 F.3d 335 (7th Cir. 2018) .............................................................................................30
Morales Feliciano v. Rossello Gonzalez, 13 F. Supp. 2d 151 (D.P.R. 1998)................................................................................28, 32
Nam Dang by & through Vina Dang v. Sheriff, Seminole County Florida, 871 F.3d 1272 (11th Cir. 2017) .........................................................................................30
Nken v. Holder, 556 U.S. 418 (2009).....................................................................................................16, 36
Palmigiano v. Garrahy, 639 F. Supp. 244 (D.R.I. 1986)..........................................................................................29
Pesce v. Coppinger, 355 F. Supp. 3d 35 (D. Mass. 2018) ............................................................................35, 38
Philip Morris, Inc. v. Harshbarger, 159 F.3d 670 (1st Cir. 1998) ..............................................................................................16
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Philip Morris, Inc. v. Reilly, 312 F.3d 24 (1st Cir. 2002) (en banc) ................................................................................36
Preminger v. Principi, 422 F.3d 815 (9th Cir. 2005) .............................................................................................36
Reaves v. Department of Correction, 195 F. Supp. 3d 383 (D. Mass. 2016) ................................................................................36
Richmond v. Huq, 885 F.3d 928 (6th Cir. 2018) .............................................................................................30
Rio Grande Community Health Center, Inc. v. Rullan, 397 F.3d 56 (1st Cir. 2005) ................................................................................................34
Ruiz-Rosa v. Rullan, 485 F.3d 150 (1st Cir. 2007) ........................................................................................18, 30
Shimon v. Department of Correctional Services for New York, No. 93-cv-3144 (DC), 1996 WL 15688 (S.D.N.Y. Jan. 17, 1996) ....................................32
United States v. Garlock, No. 18-cr-418 (VC), 2020 WL 1439980 (N.D. Cal. Mar. 25, 2020).................................28
United States v. Neto, 659 F.3d 194 (1st Cir. 2011) ..............................................................................................17
United States v. Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) .................................28
Watts v. Organogenesis, Inc., 30 F. Supp. 2d 101 (D. Mass. 1998) ..................................................................................35
Whitney v. City of St. Louis, 887 F.3d 857 (8th Cir. 2018) .............................................................................................30
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)...............................................................................................................16
Youngberg v. Romeo, 457 U.S. 307 (1982)...........................................................................................................18
DOCKETED CASES
Castillo v. Barr, No. 20-cv-605 (TJH) (C.D. Cal.) ........................................................................25
Chunn v. Edge, No. 20-cv-1590 (E.D.N.Y.)....................................................................................9
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Committee for Public Counsel Services v. Chief Justice of Trial Court, No. SJC-12926 (Mass.) ...........................................................................................................................7, 10
Mays v. Dart, No. 1:20-C-02134-MFK (N.D. Ill.) ............................................................25, 26, 33
Savino v. Souza, Civ. A. No. 20-10617 (D. Mass.) .......................................................................28
Swain v. Junior, No. 1:20-cv-21475-KMW (S.D. Fla.).................................................................33
United States v. Anthony Baez, Cr. No. 19-cr-40049 (D. Mass.)...................................................21
Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir.) .......................................................................25
OTHER AUTHORITIES
30 Days to Slow the Spread, The President’s Coronavirus Guidelines for America, https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirusguidance_8.5x11_315PM.pdf ............................................................................................19
Advisory Regarding Face Coverings and Cloth Masks, Massachusetts Department of Public Health (Apr. 10, 2020), https://www.mass.gov/news/advisoryregarding-face-coverings-and-cloth-masks ........................................................................19
Chou-Han Lin et al., Tuberculosis Mortality: Patient Characteristics and Causes, 14 BMC INFECTIOUS DISEASES (2014) ..............................................................................28
Coronavirus Disease 2019 (COVID-19), COVIDView, CDC (last updated Apr. 10, 2020), https://www.cdc.gov/coronavirus/2019-ncov/coviddata/covidview/index.html#hospitalizations..........................................................27, 28, 32
Coronavirus Disease 2019 (COVID-19), Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CDC (last reviewed: Apr. 9, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html ..................21
Coronavirus Disease 2019 (COVID-19), Resources for Correctional and Detention Facilities, CDC (last reviewed: Apr. 9, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/index.html ..........................................................................................................19
Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last updated Apr. 16, 2020, 3:41 PM).................................................................................7
COVID-19 Dashboard, Johns Hopkins Univ. (Apr. 14, 2020), https://www.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd 40299423467b48e9ecf6 .......................................................................................................5
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COVID-19 Order No. 13, Office of Governor, Commonwealth of Massachusetts (Mar. 23, 2020), https://www.mass.gov/doc/march-23-2020-essentialservices-and-revised-gatherings-order/download ..............................................................18
D.R.I. General Order (Apr. 16, 2020)..............................................................................................9
Executive Order No. 591, Commonwealth of Massachusetts (Mar. 10, 2020) .............................28
Faith Karimi, One big coronavirus challenge is how to stop touching your face, CNN (Mar. 19, 2020), https://www.cnn.com/2020/03/08/health/coronavirus-touchingyour-face-trnd/index.html ..................................................................................................22
General Order 20-7 (D. Mass. Mar. 23, 2020)...............................................................................27
General Order 20-13 (D. Mass. Mar. 30, 2020).............................................................................27
Gov. Wolf: Department of Corrections to Establish Temporary Program to Reprieve Sentences of Incarceration, Commonwealth of Pennsylvania (Apr. 10, 2020), https://www.governor.pa.gov/newsroom/gov-wolfdepartment-of-corrections-to-establish-temporary-program-to-reprievesentences-of-incarceration/ ..................................................................................................8
Luke Baker, Lock 'Em Up or Let 'Em Out? Coronavirus Prompts Wave of Prisoner Releases, Reuters, Mar. 25, 2020..........................................................................8
Memo from Attorney General to Director of Bureau of Prisons, U.S. Dep’t of Justice, Mar. 26, 2020................................................................................................................................8
Memo from Attorney General to Director of Bureau of Prisons, U.S. Dep’t of Justice, Apr. 3, 2020............................................................................................................................8, 32
Memo from Chief Justice Beatty to Magistrates, Municipal Judges, and Summary Court Staff, S.C. Jud. Branch, Mar. 16, 2020, https://www.sccourts.org/whatsnew/displaywhatsnew.cfm?indexID=2461 .......................9
Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, White House (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-declaring-nationalemergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ ............................28
Sarah Betancourt, Coronavirus Infection in State Prisons More than Two Times Statewide Rate, Commonwealth Magazine (Apr. 10, 2020), https://commonwealthmagazine.org/criminal-justice/coronavirus-infection-in-stateprisons-more-than-two-times-statewide-rate/ ......................................................................7
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Case 1:20-cv-10753-LTS Document 10 Filed 04/17/20 Page 8 of 48 Timothy Williams & Danielle Ivory, Chicago’s Jail is Top U.S. Hot Spot as Virus Spreads
Behind Bars (Apr. 8, 2020), N.Y. Times, https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jailchicago.html (last updated Apr. 9, 2020, 8:47 A.M.) ........................................................25 Tracking Covid-19 in Massachusetts Prison & Jails, ACLU of Massachusetts (Apr. 16, 2020), https://data.aclum.org/sjc-12926-tracker/#tab-9488-2..............................7 World Health Org., Coronavirus Disease 2019 (COVID-19) Situation Report – 46 (Mar. 6, 2020), https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200306-sitrep-46-covid19.pdf?sfvrsn=96b04adf_4 ..................................................................................................5
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PRELIMINARY STATEMENT COVID-19 has transformed this Commonwealth: In just a few short weeks, the deadly pandemic has stopped all but the most essential activities. Public behavior is now guided by the Centers for Disease Control and Prevention’s (“CDC”) and other public health experts’ recommendations: no congregate activity; socially distance from those outside one’s immediate household by maintaining a minimum distance of six feet from others at all times; wash one’s hands with soap and hot water with great frequency throughout the day; wear face masks at all times outside one’s home; wear disposable gloves to avoid contamination, and meticulously clean and sanitize high-touch surfaces and objects continually throughout the day. But the Plymouth County Correctional Facility (“Plymouth”) has not implemented these mitigation measures. Petitioners-Plaintiffs Anthony Baez (“Mr. Baez”), Jonathan Bermudez (“Mr. Bermudez”), Dedrick Lindsey (“Mr. Lindsey”), and Jermaine Gonsalves (“Mr. Gonsalves,” and collectively with Mr. Baez, Mr. Bermudez, and Mr. Lindsey, “Petitioners”) and the proposed class, composed of federal detainees housed at Plymouth, cannot socially distance themselves, wash or sanitize their hands frequently throughout the day, wear requisite personal protective equipment or ensure that guards and other staff with whom they interact do so consistently; effectively clean and disinfect their cells daily; or ensure that frequently-touched surfaces to which they are exposed, such as chairs, tables, telephones, and remote controls, are decontaminated with the requisite frequency and care. Plymouth’s failure to implement the CDC’s critical recommendations for mitigating the spread of COVID-19 subjects its federal detainees to an undue risk of contracting this potentially fatal disease. COVID-19 often causes horrible pain, fevers, diarrhea, and difficulty breathing. Serious cases require hospitalization, and even more severe cases can cause death or permanent lung, heart, and liver conditions. Among adults with preexisting medical conditions like high
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blood pressure, asthma, and diabetes — features that disproportionately characterize incarcerated
people — the hospitalization and death rates are greatly elevated. Unless Respondents-Defendants
Sheriff Joseph D. McDonald, Jr. (“McDonald”) and Superintendent Antone Moniz (“Moniz,” and
collectively with McDonald, “Respondents”) act now to effectively mitigate the risk of an
imminent COVID-19 outbreak at Plymouth, if (and likely when) that risk materializes, the
facility’s residents and staff, as well as the broader outside community, will suffer immense harm.
The evidence in the record includes:
 Affidavits on behalf of five federal detainees who are currently housed at Plymouth, detailing the impossibility of socially distancing themselves at the facility; the limited and oftentimes short supply of personal and environmental cleaning products; the unsanitary conditions of detainees’ confinement; detainees’ inability to avail themselves properly of personal protective equipment; and the staff’s failure to consistently use personal protective equipment (such as face masks); and
 Expert declarations from: Dr. Jonathan Giftos, a Clinical Assistant Professor in the Department of Medicine at Albert Einstein College of Medicine, who previously served as the Clinical Director of Substance Use Treatment for NYC Health & Hospitals, Division of Correctional Health Services at Rikers Island; Dr. Regina Celeste LaRocque, Associate Professor of Medicine at Harvard Medical School and a physician and researcher in the Division of Infectious Disease at Massachusetts General Hospital; and Dr. Josiah Rich, Professor of Medicine and Epidemiology at Brown University and a provider of clinical care in the Rhode Island Department of Corrections.
Drs. Giftos, LaRocque, and Rich each conclude that Plymouth is highly vulnerable to a
COVID-19 outbreak, and that such an outbreak would have dire consequences for Plymouth’s
residents and staff as well as the public at-large. In their expert opinions, it is of paramount
importance that Plymouth implement a strict social distancing regimen that includes the
elimination of shared cells to avert the dire consequences of a COVID-19 outbreak at the facility.
Unless Respondents bring Plymouth into compliance with the full spectrum of the CDC’s
recommendations for mitigating the spread of COVID-19, they deem the health and safety of the
Petitioners and the proposed class members to be at grave risk.
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These times call for immediate action to prevent and mitigate a COVID-19 outbreak in Respondents’ facility. Respondents’ failure to implement basic preventive measures around which there is widespread medical consensus to protect residents against this potentially deadly disease violates Petitioners’ and proposed class members’ rights under the Fifth and Eighth Amendments. State and federal court judges have responded to these ongoing constitutional violations by ordering jail and prison officials to reduce the number of residents of their facilities and implement proper hygiene, sanitation, and social distancing measures. Indeed, on April 3, 2020, this Commonwealth’s Supreme Judicial Court charged a special master with facilitating hearings regarding the release of certain pretrial detainees from the Commonwealth’s houses of corrections. See Comm. for Pub. Counsel Servs. v. Chief Justice of Trial Ct., No. SJC-12926, 2020 WL 1659939, at *2 (Mass. Apr. 3, 2020). The Supreme Judicial Court also urged the Massachusetts Department of Correction (“DOC”) and parole board “to work with the special master to expedite parole hearings, to expedite the issuance of parole permits to those who have been granted parole, to determine which individuals nearing completion of their sentences could be released on time served, and to identify other classes of inmates who might be able to be released by agreement of the parties, as well as expediting petitions for compassionate release.” Id. at *3.
Petitioners and proposed class members are more than 150 residents in federal custody at Plymouth. Respondents are the County Sheriff and Superintendent of that facility, in which Petitioners and proposed class members reside.
Petitioners seek a temporary restraining order and preliminary injunction directing Respondents to immediately implement new procedures that will bring Plymouth into compliance with expert guidance and to appoint an independent monitor to ensure such compliance. Toward that end, Petitioners seek the release on conditions or the transfer to home confinement of a
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sufficient number of Plymouth’s federal detainees to enable Plymouth to implement the CDC’s foundational social distancing recommendations to prevent the spread of COVID-19. The Court should enter such an injunction for the following reasons.
FACTUAL BACKGROUND I. COVID-19 poses a grave risk of serious injury or death to anyone who is infected.
COVID-19 is a worldwide pandemic. It has neither a vaccine, nor a cure. Aff. of Jonathan Giftos, M.D. at ¶¶ 4, 14 (“Giftos Aff.”), ECF No. 1-5. It is a highly infectious, often debilitating, and sometimes fatal disease. The Johns Hopkins University reports that as of April 16, 2020, there are at least 2,090,110 confirmed COVID-19 cases worldwide, resulting in 139,000 confirmed deaths. Class Action Pet. ¶ 20, ECF No. 1. In the United States, as of April 14, 2020, there are at least 608,458 confirmed cases of COVID-19 in the U.S. and 25,992 confirmed deaths. Center for Systems Science and Engineering at Johns Hopkins University, Coronavirus COVID-19 Global Cases Dashboard at https://gisanddata.maps.arcgis.com/apps/opsdashboard/in dex.html#/bda7594740fd40299423467b48e9ecf6. All 50 states, the District of Columbia, Guam, Puerto Rico, the Northern Marianas Islands, and the U.S. Virgin Islands have reported confirmed cases of COVID-19. Id. Due to the highly contagious nature of COVID-19, data and statistical modeling show that absent adherence to CDC recommendations, especially social distancing, COVID-19 will continue to grow exponentially. Aff. of Regina Celeste LaRocque, MD, MPH at ¶ 9 (“LaRocque Aff.”), ECF No. 1-4.
People of all ages risk serious injury and death if they contract COVID-19. According to Dr. Regina Celeste LaRocque, an infectious disease specialist, Associate Professor at Harvard Medical School, physician and researcher at Massachusetts General Hospital, and public health expert, even the young can suffer “serious harm from the disease.” LaRocque Aff. ¶ 2. Indeed,
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nearly 40 percent of those requiring hospitalization due to COVID-19 between February 12 and March 16, 2020 in the U.S. were between the ages of 20 to 54. Id.
For people who contract COVID-19, the symptoms can be extreme and severe. Dr. LaRocque reports that “[a]pproximately 16% of COVID-19 cases result in serious illness or death.” LaRocque Aff. ¶ 3. For those who survive bouts with COVID-19, the effects of the disease may be long-lasting: new research indicates that the respiratory disease may not only damage the lungs, but also the “heart, liver, kidney, brain, and endocrine and blood systems.” LaRocque Aff. ¶ 6. Moreover, the novel coronavirus that causes COVID-19 may also result in long-term complications, just as chicken pox may cause shingles later in life. See id.
The Johns Hopkins University data show that , as of April 14, 2020, 4.27% of people in the United States with a confirmed COVID-19 diagnosis died from the virus. See COVID-19 Dashboard, Johns Hopkins Univ. (Apr. 14, 2020), https://www.arcgis.com/apps/opsdashboard/in dex.html#/bda7594740fd40299423467b48e9ecf6. The World Health Organization (“WHO”) similarly estimates the COVID-19 mortality rate to be between three and four percent. Class Action Pet. ¶ 22. By way of comparison, the mortality rate of seasonal influenza is well below 0.1 percent. See LaRocque Aff. ¶ 4. II. Jails and prisons are particularly vulnerable to COVID-19 and pose a public health
risk to the broader community. Congregate settings are especially vulnerable to COVID-19. Aff. of Dr. Josiah Rich, MD, MPH at ¶ 7(“Rich Aff.”), ECF No. 1-3. In congregate settings, such as correctional facilities, there is frequent contact between people. Rich Aff. ¶¶ 6, 8. Because the novel coronavirus that causes COVID-19 is spread by droplets that people emit when they cough or sneeze and may be spread by tiny particles that people breathe out, “the opportunities for transmission [in congregate settings] are great.” Rich Aff. ¶ 5; LaRocque Aff. ¶¶ 7-8. Dr. Josiah Rich, a specialist in infectious
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diseases in prisons whose writings on COVID-19 have been published by the New England Journal of Medicine and the Washington Post, observes that, “[e]ven when facilities are locked down and use of common space is restricted, . . . there is inevitably frequent contact among prisoners, and especially between prisoners and staff.” Rich Aff. ¶¶ 3-6.
COVID-19 can thus spread rapidly through a correctional facility. Dr. Rich, concludes that the nature of the virus “create[s] a perfect storm for correctional settings.” Rich Aff. ¶ 5. Because people — staff, residents, contractors, attorneys, community members, and others — constantly cycle in and out of correctional facilities, there is an ever-present risk that new carriers will bring the virus into the facility. In the absence of widespread testing, common screening measures, such as temperature checks, may be “ineffective with SARS-CoV-2 due to high rates of asymptomatic or pre-symptomatic infection.” Rich Aff. ¶ 9. Dr. LaRocque explains that the virus may actually be more infectious early on, before the carrier displays significant or any symptoms at all. LaRocque Aff. ¶ 7.
The documented spread of COVID-19 at correctional facilities to date lends credence to Drs. LaRocque and Rich’s concerns. Detention facilities constitute three of the top five places in the United States where people have contracted COVID-19. Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirusus-cases.html (last updated Apr. 17, 2020, 1:26 PM). Cook County Jail alone accounts for nearly 600 cases. Id. “[T]he COVID-19 infection rate in New York City jails is more than seven times greater than in New York City in general and more than fifty times greater than the infection rate across the United States as a whole. See Class Action Pet. ¶ 54. The Bureau of Prisons has reported 692 COVID-19 cases as of April 14, 2020; that number has grown 34,500% since the Bureau of Prisons system reported its first case. Rich Aff. ¶ 17. In contrast, COVID-19 cases
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have grown 3,042% nationwide in the same time frame. Id. As of April 10, 2020, the rate of infection for COVID-19 in DOC facilities was more than double the statewide rate. See Sarah Betancourt, Coronavirus Infection in State Prisons More than Two Times Statewide Rate, Commonwealth Magazine (Apr. 10, 2020), https://commonwealthmagazine.org/criminaljustice/coronavirus-infection-in-state-prisons-more-than-two-times-statewide-rate/.1
Respondents concede that, “for several reasons, correctional institutions face unique difficulties in keeping their populations safe during this pandemic.” Comm. for Pub. Counsel Servs. v. Chief Justice of Trial Ct., No. SJC-12926, 2020 WL 1659939, at *3 (Mass. Apr. 3, 2020). The SJC noted that these difficulties arise because “confined, enclosed environments increase transmissibility,” and “[m]aintaining adequate physical distance, i.e., maintaining six feet of distance between oneself and others, may be nearly impossible in prisons and jails.” Id. Similarly, both Drs. LaRocque and Rich assert that, without social distancing and a reduction in population, attempts to prevent or mitigate an outbreak likely will not succeed. LaRocque Aff. ¶ 9, 19; Rich Aff. ¶¶ 8-9, 21-22.
Recognizing the dire threat that COVID-19 presents to residents and staff of federal correctional facilities, Attorney General William Barr instructed the Director of the Bureau of Prisons “to prioritize the use of [his] statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic.” Memo from Att’y Gen. to Dir. of Bureau of Prisons, U.S. Dep’t of Justice, at 1, Mar. 26, 2020, ECF No. 1-1. Attorney General Barr acknowledged that “for some eligible inmates, home confinement might be more effective in protecting their health.” Id. A week later, Attorney General Barr emphasized that,
1 The ACLU of Massachusetts has posted on its website the information provided by county sheriffs and the Massachusetts Department of Correction (“DOC”) in Committee for Public Counsel Services v. Chief Justice of the Trial Court, SJC-12926 (Mass.). See Tracking Covid-19 in Massachusetts Prison & Jails, ACLU of Mass. (last updated Apr. 16, 2020), https://data.aclum.org/sjc-12926-tracker/#tab-9488-2.
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“[g]iven the speed with which this disease has spread through the general public, it is clear that time is of the essence.” Memo from Att’y Gen. to Dir. of Bureau of Prisons, U.S. Dep’t of Justice, at 2, Apr. 3, 2020, ECF No. 1-2. Here in the Commonwealth, the SJC has appointed a special master to “allow the physical separation of individuals recommended by the CDC.” Comm. for Pub. Counsel Servs., 2020 WL 1659939, at *2-4.2 In the past week, Pennsylvania began an aggressive program to reduce the population of incarcerated people in order to “protect them and to allow [Pennsylvania prisons] space to mitigate the impact of the virus in [the] system.” Gov. Wolf: Department of Corrections to Establish Temporary Program to Reprieve Sentences of Incarceration, Commw. of Pa. (Apr. 10, 2020), https://www.governor.pa.gov/newsroom/govwolf-department-of-corrections-to-establish-temporary-program-to-reprieve-sentences-ofincarceration/. As early as March 16, 2020, the South Carolina Supreme Court recognized the danger of detaining new people amidst this pandemic: it thus ordered that those “charged with a non-capital crime” must be “released pending trial on his own recognizance without surety, unless an unreasonable danger to the community will result or the accused is an extreme flight risk.” Memo from Chief Justice Beatty to Magistrates, Municipal Judges, and Summary Court Staff, S.C. Jud. Branch, Mar. 16, 2020, https://www.sccourts.org/whatsnew/displaywhatsnew.cfm?indexID =2461.
On April 16, 2020, the U.S. District Court for the District of Rhode Island recognized that it needed “current, consistent, and correct information to assess” federal detainees’ “risk of contracting COVID-19” in the Donald W. Wyatt Detention Facility. D.R.I. General Order at 1
2 Government officials around the world and the country have reduced the number of people in detention because of the risk of COVID-19 in detention facilities. Iranian courts have furloughed 85,000 convicted defendants; Germany released “1,000 prisoners who are close to the end of their sentences”; and Canada released “1,000 inmates in the state of Ontario.” Luke Baker, Lock 'Em Up or Let 'Em Out? Coronavirus Prompts Wave of Prisoner Releases, Reuters, Mar. 25, 2020.
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(Apr. 16, 2020). Accordingly, it sua sponte ordered that facility’s warden to provide written updates, twice a week, about “the incidence of infection of COVID-19” and “the measures undertaken to mitigate the spread of COVID-19” there. Id. at 1-2. Similarly, on April 15, 2020, the U.S. District Court for the Eastern District of New York permitted petitioners challenging their conditions of confinement at the Metropolitan Detention Center in light of COVID-19 to have an expert inspect the facility. See Chunn v. Edge, No. 20-cv-1590, slip op. at 1 (E.D.N.Y. Apr. 15, 2020), ECF No. 45. III. Respondents have not implemented key measures at Plymouth that public health
experts deem critical to mitigating the spread of COVID-19. Affidavits on behalf of Petitioners and another federal detainee at Plymouth, Samuel Baptista (“Mr. Baptista”), and medical experts demonstrate that the conditions of confinement at the facility expose Petitioners to a grave and undue risk of contracting COVID-19. Instead of adopting aggressive measures prescribed by public health and medical experts, the most critical of which is consistent social distancing, Respondents continue to house Petitioners and proposed class members in shared cells or multi-person dormitories whose beds are separated by less than six feet, making social distancing impossible. In so doing, Respondents have rendered Plymouth a veritable tinderbox for COVID-19. According to Drs. LaRocque and Rich, Plymouth’s failure to implement social distancing is the facility’s most glaring and dangerous deficiency in following the CDC’s recommendations for mitigating the spread of COVID-19. LaRocque Aff. ¶¶ 9, 19; Rich Aff. ¶¶ 8-10. Because detainees are housed in shared cells or multi-person dormitories whose beds are less than six feet apart, social distancing, the cornerstone of the CDC’s mitigation strategy, is currently impossible at Plymouth. LaRocque Aff. ¶¶ 9, 19; Rich Aff. ¶¶ 8-10. The other deficiencies these experts cite in Plymouth’s implementation of the CDC’s recommendations — infrequent cleaning and
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disinfecting; poor access to hygiene products; lack of access to personal protective equipment; lack of instruction on the proper use of such equipment; and inconsistent and improper use of such equipment by guards and staff to whom it has been provided — further exacerbate the fundamental danger posed by the Petitioners’ conditions of confinement. LaRocque Aff. ¶¶ 10-12; Rich Aff. ¶¶ 11-13. Until Respondents rectify these fundamental deficiencies at Plymouth, their facility will continue to pose a grave public health risk and jeopardize the safety and well-being of Plymouth’s federal detainees.
A. Petitioners are unable to take proper social distancing measures to protect themselves from infection.
Respondents admit that the conditions of confinement to which Petitioners and proposed class members are subject preclude them from maintaining the social distance the CDC and public health experts deem critical to mitigating the risk of individuals contracting and spreading COVID19. See McDonald’s Answers to Interrogatories, ECF No. 1-7. In an interrogatory response before the SJC, Sheriff McDonald stated that approximately 49.2% of Plymouth’s inmates or detainees sleep within six feet of one another, approximately 56.72% eat their meals within six feet of one another, and approximately 47.35% are within six feet of one another during recreation. Id.
Affidavits from Plymouth federal detainees demonstrate that the conditions of their confinement make social distancing, the bedrock of COVID-19 prevention measures, impossible at the facility. Each of the Petitioners (and another detainee who provided an affidavit) live and sleep in shared cells or dormitories. They are always within six feet of their cellmates when in their cells or dormitories and sleep in bunkbeds whose beds are less than six feet apart. Aff. of Attorney Jane Peachy ¶ 4 (“Peachy Aff.”), ECF No. 1-9; Aff .of Attorney Keith Halpern ¶ 4 (“Halpern Aff.”), ECF No. 1-10; Aff. of Edward P. Ryan, Jr. ¶ 4 (“Ryan Aff.”), ECF No. 1-8; Aff. of Jessica Thrall ¶ 4 (“Thrall Aff.”), ECF No. 11; Aff. of Attorney Timothy Watkins ¶ 9 (“Watkins
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Aff.”), ECF No. 12. Plymouth’s detainees are also routinely within six feet of other detainees during their daily recreation periods. Halpern Aff. ¶ 12; Ryan Aff. ¶ 5; Thrall Aff. ¶ 7. Plymouth correctional officers, who enter and leave the facility daily, routinely disregard social distancing guidelines and regularly stand in close proximity to detainees when interacting with them. Halpern Aff. ¶ 11; Watkins Aff. ¶ 9.
To enable critical social distancing at Plymouth, Respondents must reduce their inmate population. Because social distancing is essential to any COVID-19 prevention and mitigation strategy, it is urgent that this measure be undertaken swiftly. Giftos Aff. ¶ 27; Rich Aff. ¶ 16. Drs. Rich and Giftos explain that social distancing is exceedingly difficult in correctional settings because they house many residents in close proximity. Giftos Aff. ¶ 18; Rich Aff. ¶¶ 6, 21-22. As a consequence, correctional facilities must reduce their pre-pandemic populations to provide enough space for the remaining residents to socially distance. Id. Respondents’ failure to decarcerate thus exposes Petitioners and their fellow class members to the risk of a severe COVID19 outbreak.
B. Plymouth correctional officers do not utilize personal protective equipment (“PPE”), and Plymouth does not provide Petitioners with PPE either.
The hazards of Respondents’ disregard for proper social distancing are compounded by their failure to ensure that face masks are available to and correctly and consistently used by staff and detainees alike. Effective and consistent use of personal protective equipment is vital to prevent the spread of COVID-19. Rich Aff. ¶¶ 13-14; LaRocque Aff. ¶¶ 10, 19. The need for face masks is especially acute in correctional facilities, where conditions of confinement often give rise to more close physical contact during this state of emergency than may occur in the community at large. Yet, some detainees report receiving face masks not having received a face mask since a state of emergency was declared in the Commonwealth on March 10, 2020. See generally Peachy
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Aff.; Halpern Aff. Others report receiving a single mask. There is no evidence that detainees were instructed on how to use face masks properly, nor do Respondents ensure their consistent use. Mr. Baez reports that he is “not required to wear [a mask] all times when he is outside of his cell.” Meanwhile, Mr. Baptista reports that he was instructed to “wear the mask when he thinks he should wear it.” Ryan Aff. ¶ 7; Watkins Aff. ¶ 5.
Plymouth staff also reportedly – and incorrectly – told Mr. Baptista that he could use his mask five times. That is dangerous misinformation. The mask he received should never be worn over a multi-day period or after it becomes damp, such as from a cough or sneeze. Watkins Aff. ¶ 5; LaRocque Aff. ¶ 10. Dr. Baker, Plymouth’s Medical Director, touts signs that Plymouth has reportedly posted to inform detainees that they should notify the medical staff if they feel sick so they can receive a face mask. Decl. PCCF Medical Director Lawrence Baker, MD ¶ 17 (“Baker Decl.”), United States v. Pridgen, Cr. No. 19-cr-10375-RGS (Apr. 16, 2020), ECF No. 51-2. This is too little, too late. Dr. Baker’s statement implicitly concedes that Plymouth is not routinely providing face masks to its federal detainees, much less requiring their continuous use. Moreover, not only may detainees already have transmitted the virus to others by the time they become symptomatic, but they may never become symptomatic at all while still spreading the virus. LaRocque Aff. ¶ 19; Rich Aff. ¶ 9.
The use of personal protective equipment is no better among Plymouth staff. While they appear to have better quality face masks than are provided to select detainees, a mask’s quality is of no import if it is not used properly and consistently. Watkins Aff. ¶¶ 5-6. Yet, Plymouth staff wear face masks only intermittently, if they wear them at all, even though they frequently interact with inmates at close proximity. Halpern Aff. ¶ 6; Ryan Aff. ¶ 7; Thrall Aff. ¶ 8; Watkins Aff. ¶ 5. Respondents’ failure to provide detainees with a steady supply of face masks or ensure their
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consistent use by staff and detainees alike, severely limits their efficacy in mitigating the risk of COVID-19 exposure at their facility. LaRocque Aff. ¶¶ 10, 19.
C. Respondents have maintained dangerous, unsanitary conditions. Hand washing is essential to protecting against the virus, which commonly spreads when individuals touch contaminated surfaces and then touch their mouth, eyes or nose. Rich Aff. ¶¶ 1112; LaRocque Aff. ¶¶ 11, 18-19. Yet Petitioners are unable washing and disinfect their hands and surroundings with sufficient frequency to effectively mitigate their risk of infection. Plymouth tightly rations the hand soap provided to inmates, limiting individual inmates to one small bar of soap per week. Halpern Aff. ¶ 7; Peachy Aff. ¶ 7; Ryan Aff. ¶ 8; Watkins Aff. ¶ 8. After having categorically barred Respondents Petitioners’ access to hand sanitizer within the facility, Respondents finally appear to have made limited supplies of it available to at least some detainees. Peachy Aff. ¶ 6; Halpern Aff. ¶ 7; Ryan Aff. ¶ 8; Watkins Aff. ¶ 8. But more still needs to be done. Because the coronavirus can persist on surfaces for up to three days, frequent daily cleaning of cells, common areas, and high-touch surfaces is crucial to preventing the spread of COVID-19 within Respondents’ facility. Rich Aff. ¶ 11; LaRocque Aff. ¶¶ 12-13. Yet, overall sanitation at Plymouth has deteriorated since the pandemic. Plymouth inmates used to receive two rolls of toilet paper per week; they now receive a single roll. Halpern Aff. ¶ 8; Ryan Aff. ¶ 8. Common areas and frequently touched surfaces at Plymouth remain contaminated for hours if not days on end. Peachy Aff. ¶ 9; Halpern Aff. ¶ 9; Ryan Aff. ¶ 9; Thrall Aff. ¶ 9. The showers in Mr. Bermudez’s unit at Plymouth, which house 70-80 detainees, are cleaned only once every several days. Peachy Aff. ¶ 9. Respondents have neglected to supply inmates at Plymouth with gloves, which could help them protect themselves from contracting COVID-19 while they are cleaning contaminated objects
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and surfaces. At Plymouth, staff placed Mr. Bermudez in direct contact with objects they were on notice had a dangerous likelihood of being contaminated. After Mr. Bermudez’s cellmate went to medical for symptoms of coronavirus, staff reportedly directed Bermudez to pack up his cellmate’s belongings without providing him gloves to protect himself. Peachy Aff. ¶ 12.
Respondents fail to persistently clean high-touch surfaces and objects. Peachy Aff. ¶¶ 5, 9; Halpern Aff. ¶ 9; Ryan Aff. ¶ 9; Watkins Aff. ¶ 11. This failure allows virus-containing droplets and particles to collect on those surfaces, where they can live for several days. Respondents’ inaction thus turns ordinary objects into vectors of COVID-19. Sheriff McDonald asserts that he has improved sanitization conditions in certain units. Decl. of Sheriff Joseph D. McDonald, Jr. ¶¶ 9-12, United States v. Pridgen, Cr. No. 19-cr-10375-RGS (Apr. 16, 2020), ECF No. 51-1. But heightened sanitization standards must be maintained across the facility to prevent a COVID-19 outbreak from starting in one unit and then rampaging through the rest of the facility. See LaRocque Aff. ¶ 19. Plymouth’s selective action plainly contravenes the CDC guidance and the medical consensus on preventing infection.
D. Petitioners in Respondents’ custody are not properly quarantined after potential exposure to COVID-19.
Successful management of COVID-19 exposure relies on infected individuals entering quarantine before spreading the disease to others during its early stages, when the virus is at its most infectious. Rich Aff. ¶ 20; LaRocque Aff. ¶¶ 14-16. At Plymouth, due to a poorly structured quarantine system or an utter lack of transparency around the procedures Respondents may have put in place, detainees avoid reporting symptoms, at all costs. Halpern Aff. ¶ 10. Detainees are loathe to report any symptoms they may have, fearful that doing so will prompt their being housed in close quarters with inmates who may, in fact, have contracted COVID-19, thereby ensuring that the newly quarantined inmate will become infected, even if he had not yet contracted the virus
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before being quarantined. Id. Mr. Baptista’s own recent experience in the medical unit, unrelated to COVID-19, did nothing to instill confidence in him. There, Mr. Baptista was placed “in close proximity and less than six feet from other detainees in the unit,” observed “correctional officers talking to each other within two feet of each other,” and witnessed “other detainees cleaning the medical unit without masks or gloves.” Watkins Aff. ¶ 10. And though his doctor wore a mask, his nurse did not. Id.
E. Petitioners do not have immediate access to health care. Rapid access to medical treatment is vital to prevent death from COVID-19. LaRocque Aff. ¶ 20. This is all the more true for detainees, who are far more likely than the general population to have chronic underlying conditions that expose them to risk of severe complications from COVID-19. Rich Aff. ¶ 15. But medical care in jails is frequently insufficient to meet inmates’ needs even when there is no pandemic. Giftos Aff. ¶ 18; Rich Aff. ¶ 23. According to Dr. Baker, only six staffers (a number that includes administrators and mental health aides) are currently working in the medical unit onsite. Baker Decl. ¶ 6. This limited medical care will surely crack under the strain of a COVID-19 outbreak, as sick inmates multiply, staff fall sick, and supplies are depleted. Rich Aff. ¶¶ 23-24. The provision of medical treatment at Plymouth lagged even before the current COVID19 pandemic. Mr. Bermudez recently submitted two medical requests at Plymouth after an ingrown toenail became infected, which he believes was caused by the communal showers. Peachy Aff. ¶ 10. He received no response. See id. Only after his lawyer pressed the facility to respond to his medical request did a nurse finally see him and prescribe an antibiotic. See id. Petitioners’ lives and well-being may well depend on their ready access to medical care during this public health emergency. Plymouth’s dilatory response to simple medical requests in the recent past does not bode well for its timely care of detainees in the midst of this pandemic.
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And there is every reason to expect that such will be need. Because Plymouth has not already implemented the CDC’s critical recommendations for preventing the spread of COVID-19, Drs. LaRocque and Rich conclude that it faces a “high risk of a COVID-19 outbreak,” which could spread rapidly through the facility and “have disastrous consequences for the facility’s residents and staff, and the surrounding broader community.” LaRocque Aff. ¶¶ 17, 21; Rich Aff. ¶¶ 5, 9.
ARGUMENT The Court may grant a preliminary injunction or temporary restraining order if Petitioners establish (1) that they are “likely to succeed on the merits,” (2) that they are “likely to suffer irreparable harm in the absence of preliminary relief,” (3) “that the balance of equities tips in [their] favor,” and (4) “that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The standards for issuing a temporary restraining order and a preliminary injunction are “the same,” and therefore both remedies can be analyzed together. Levesque v. Maine, 587 F.2d 78, 80 (1st Cir. 1978) “The first two factors are the most important and, in most cases, ‘irreparable harm constitutes a necessary threshold showing for an award of preliminary injunctive relief.’” Gonzalez-Droz v. Gonzalez-Colon, 573 F.3d 75, 79 (1st Cir. 2009) (quoting Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004)). Nevertheless, Petitioners’ “likelihood of success, is ‘the touchstone of the preliminary injunction inquiry.’” Bos. Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d 1, 11 (1st Cir. 2008) (quoting Philip Morris, Inc. v. Harshbarger, 159 F.3d 670, 674 (1st Cir. 1998)). Here, Petitioners are likely to succeed on the merits of their claims. Those claims relate to a risk that could not be more dire: that of contracting a deadly infectious disease. The public interest – which is the only relevant interest in a motion for a preliminary injunction against the government – also favors relief. See Devitri v. Cronen, 289 F. Supp. 3d 287, 297 (D. Mass. 2018) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
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A. Petitioners and the proposed class will likely succeed on their Fifth and Eighth Amendment claims because Respondents have failed to protect their health and safety.
Petitioners will likely prevail on their Fifth and Eighth Amendment claims because Respondents are not adequately protecting the health and safety of Petitioners and proposed class members. Instead, Respondents have maintained conditions of confinement that contravene critical CDC recommendations designed to protect individuals from the COVID-19 pandemic. In so doing, Respondents have violated Petitioners’ Fifth Amendment (for pretrial detainees) and Eighth Amendment rights (for post-conviction detainees). See Bell v. Wolfish, 441 U.S. 520, 53637 & n.16 (1979).
The Eighth Amendment requires corrections officials to “provide humane conditions of confinement,” such as “adequate food, clothing, shelter, and medical care,” and reasonable safety precautions. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal citations omitted). Corrections officials violate the Eighth Amendment when (1) the facility’s conditions manifest “a substantial risk of serious harm” to detainees and (2) the officials subjectively know of that risk and fail to address it. See Leite v. Bergeron, 911 F.3d 47, 52 (1st Cir. 2018).
While the Due Process Clause protects pretrial detainees from dangerous conditions of confinement, the First Circuit has previously analyzed such claims using the Eighth Amendment’s framework. See Burrell v. Hampshire Cty., 307 F.3d 1, 7 (1st Cir. 2002) (citing Bell, 441 U.S. at 545); see also United States v. Neto, 659 F.3d 194, 201 n.7 (1st Cir. 2011) (“[D]ue process cases decided under the Fourteenth Amendment provide guidance in due process cases arising under the Fifth Amendment.”). However, as detailed below, subsequent Supreme Court rulings suggest that
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pretrial detainees’ Fifth Amendment claims are subject to a less stringent standard of review.3 See Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2473-74 (2015); Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). Even if Petitioners’ Fifth Amendment claims are evaluated through the prism of the Eighth Amendment, Petitioners are likely to prevail because, notwithstanding Respondents’ acute awareness that COVID-19 poses a substantial risk of serious harm to the detainees in their custody, they have failed to implement critical CDC recommendations, including social distancing, that are essential to protect detainees from COVID-19 and mitigate its spread.
1. Plymouth is unduly vulnerable to a COVID-19 outbreak. Petitioners will likely prevail on the first prong of the analysis because their “conditions pos[e] a substantial risk of serious harm.” Farmer, 511 U.S. at 834. Petitioners meet their burden on this prong if they show that “the risk of which [they] complain[] is not one that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. 25, 36 (1993). That is plainly so here. “Today’s society” has banned congregate gatherings; repeatedly and urgently stressed the importance of social distancing; recommended the use of cloth face masks outside the privacy of one’s home; underscored the critical importance of repeated hand washing and disinfection of all high-touch surfaces; closed nonessential businesses; and stopped nonessential travel because of the mortal threat that they pose during the COVID-19 pandemic. See COVID-19 Order No. 13, Office of Gov., Commw. of Mass. (Mar. 23, 2020), https://www.mass.gov/doc/march-23-2020essential-services-and-revised-gatherings-order/download (temporarily closing nonessential businesses and organization, allowing essential services to stay open if they follow social
3 Under the Fifth Amendment, pre-trial detainees enjoy “at least as much protection” as convicted defendants do under the Eighth Amendment. See Youngberg v. Romeo, 457 U.S. 307, 322 (1982); see also Ruiz-Rosa v. Rullan, 485 F.3d 150, 155 (1st Cir. 2007) (applying the Fourteenth Amendment due process clause) (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). Accordingly, plaintiffs in pretrial detention may be “entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg, 457 U.S. at 322
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distancing protocols, and banning gatherings of more than 10 people indoors); Advisory Regarding Face Coverings and Cloth Masks, Mass. Dep’t of Pub. Health (Apr. 10, 2020), https://www.mass.gov/news/advisory-regarding-face-coverings-and-cloth-masks; Coronavirus Disease 2019 (COVID-19), Resources for Correctional and Detention Facilities, CDC (last reviewed: Apr. 9, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/index.html (advising corrections facilities to “[u]se multiple social distancing strategies”); 30 Days to Slow the Spread, The President’s Coronavirus Guidelines for America, https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirusguidance_8.5x11_315PM.pdf (recommending avoiding gatherings of more than 10 people).
a. Plymouth’s conditions of confinement expose Petitioners to an unduly substantial risk of contracting COVID-19.
Petitioners and proposed class members face an unduly substantial risk of contracting COVID-19. In facilities holding federal detainees nationwide, the growth rate of COVID-19 infections has dramatically outpaced the rate in the country at large.
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Rich Aff. ¶ 17. Drs. Giftos and Rich observe that correctional facilities are especially susceptible to
COVID-19. In his affidavit, Dr. Giftos explains that residents at facilities like Respondents’ face an increased risk of contracting COVID-19 because of “the high numbers of people with chronic, often untreated, illnesses housed in a setting with minimal levels of sanitation, limited access to personal hygiene, limited access to medical care, and no possibility of staying at a distance from others.” Giftos Aff. ¶ 18. Dr. Rich observes that COVID-19 can spread quickly in correctional settings because people in such facilities are often housed in close proximity to one another, frequently congregate without face coverings, and are not always able to wash or sanitize hands their hands frequently. Rich Aff. ¶¶ 6, 11. Dr. Rich emphasizes that without social distancing,
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which is both essential but difficult to achieve in correctional facilities, people must be especially rigorous in practicing proper hand hygiene and frequently cleaning and disinfection of high-touch surfaces. Rich Aff. ¶ 11. Yet “[c]orrectional facilities do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable.” Id.
Multiple conditions at Plymouth expose detainees there to a heightened risk of contracting COVID-19 and will make an outbreak at the facility all the more difficult to contain. Respondents admit that the conditions of confinement at Plymouth do not conform with the CDC’s social distancing guidelines. See McDonald’s Answers to Interrogatories (admitting that approximately half of all people living in the facility sleep, eat, and/or recreate within six feet of another). But the CDC states that social distancing “is a cornerstone of reducing the transmission of respiratory diseases such as COVID-19.”4 Respondents’ failure to implement consistent social distancing at Plymouth, by eliminating shared cells and communal meals in particular, therefore subjects detainees to a substantial risk of serious harm. LaRocque Aff. ¶¶ 9, 19; Rich Aff. ¶¶ 5, 21-22. Respondents also do not enforce their purported policy requiring staff to maintain social distance when possible in their interactions with detainees. Peachy Aff. ¶ 12; Halpern Aff. ¶ 11; Watkins Aff. ¶ 9.
Respondents further exacerbate this risk by failing both to equip detainees with adequate supplies of personal protective equipment, such as cloth masks, and to require Plymouth correctional officers to consistently use the face masks with which they are provided. Halpern Aff. ¶ 6; Ryan Aff. ¶ 7; Thrall Aff. ¶ 8; Watkins Aff. ¶ 6. Consistent and correct use of cloth masks
4 Coronavirus Disease 2019 (COVID-19), Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities, CDC (last reviewed: Apr. 9, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html.
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reduces the risk of spreading COVID-19. Rich Aff. ¶ 13; LaRocque Aff. ¶¶ 10, 19. Not all detainees report receiving masks, see generally Peachy Aff.; Halpern Aff., and those who did say they received only one, Ryan Aff. ¶ 7; Watkins Aff. ¶ 5; Thrall Aff. ¶ 8. Moreover, Plymouth staff incorrectly told Mr. Baptista that he could wear his mask “five times.” Watkins Aff. ¶ 5. Not so. Once the mask becomes damp, as it would from a sneeze or cough, the mask becomes ineffective and must be thrown out. LaRocque Aff. ¶ 10. In any event, a mask should not be worn over the course of multiple days. LaRocque Aff. ¶ 10, 19. Plymouth staff also do not require detainees to always wear their mask outside of their cell.
What’s more, Respondents have impeded Petitioners’ ability to practice recommended hand hygiene. Plymouth limits inmates to one small bar of soap per week, and has barred use of hand sanitizer all together until the day before this filing.5 Halpern Aff. ¶ 7; Peachy Aff. ¶¶ 6-7; Ryan Aff. ¶ 8; Thrall Aff. ¶ 10; Watkins Aff. ¶ 8. Yet experts explain that the virus is often spread by people touching their face after touching a contaminated surface. Rich Aff. ¶ 11; LaRocque Aff. ¶¶ 7-8, 11, 18-20; see also Faith Karimi, One Big Coronavirus Challenge is How to Stop Touching Your Face, CNN (Mar. 19, 2020), https://www.cnn.com/2020/03/08/health/coronavirustouching-your-face-trnd/index.html (individuals touch their face an average of 23 times per hour). Perpetual hand washing and sanitizing is thus a crucial component of preventing the spread of COVID-19.
Respondents have also failed to enact basic environmental hygiene practices at Plymouth that would help protect detainees from the risk of contracting COVID-19. The cleaning products Respondents make available to detainees are in such short supply that detainees cannot clean and
5 Shortly before this filing was made, undersigned counsel learned that one detainee had been provided with hand sanitizer the day before.
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disinfect their cells on a daily basis. Peachy Aff. ¶ 5; Ryan Aff. ¶ 9; Thrall Aff. ¶ 9; Watkins Aff. ¶ 11. Detainees must go without gloves when they do clean or otherwise have physical contact with known potential sources of contamination. Peachy Aff. ¶¶ 5, 12; Watkins Aff. ¶ 7. Respondents also fail to disinfect high-touch areas and objects within Plymouth, such as communal tables, telephones, and remote controls, with sufficient frequency to make them anything other than a perpetual source of potential contamination. Peachy Aff. ¶ 5; Halpern Aff. ¶ 9; Ryan Aff. ¶ 9; Thrall Aff. ¶ 9. Mr. Baptista, Mr. Bermudez and Mr. Gonsalves also report that medical treatment at Plymouth is unreliable and that patients are afraid to ask for help because they believe that Plymouth lacks areas to isolate potential COVID-19 patients. Peachy Aff. ¶ 11; Halpern Aff. ¶ 10; Watkins Aff. ¶¶ 9-10.
Based on their review of Petitioners’ and Mr. Baptista’s affidavits, Drs. LaRocque and Rich warn that the conditions of confinement at Plymouth amount to a perfect storm for a mass outbreak of COVID-19 at the facility, one that they doubt Plymouth is poised to respond to effectively. See LaRocque Aff. ¶¶ 20-21; Rich Aff. ¶¶ 22-24.
Specifically, Drs. Rich and LaRocque find that Respondents have placed Plymouth detainees at grave risk because Plymouth lacks:
 sufficient space for detainees to practice social distancing (the “best initial strategy” to combat infection), since they “must share cells, toilets, showers,” tables at meals, telephones, and other “common areas” and objects”;
 sufficient supplies of hand soap for inmates to wash their hands with needed frequency;  hand sanitizer and sufficient personal protective equipment for inmates’ use;  sufficient supplies of cleaning products and cleaning protocols to ensure continual
sanitization of high-touch surfaces and cells;  adequate ventilation to prevent or mitigate the spread of COVID-19 through respiratory
droplet or aerosolized particles; and
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 adequate (1) personal protective equipment for on-site medical personnel, (2) cloth face masks to mitigate risks for residents and staff that do not provide medical assistance, (3) contingency plans for a COVID-19 outbreak, (4) onsite units to isolate a person with a COVID-19 infection, and (5) other medical equipment needed to treat severe cases of COVID-19.
LaRocque Aff. ¶ 19; Rich Aff. ¶¶ 5, 12-13. After reviewing the evidence in the record, including the Respondents’ own representations
and affidavits from detainees in Respondents’ custody, Dr. LaRocque concluded that “Defendants are not taking vital steps to prevent and mitigate a COVID-19 outbreak at the facility. Such an outbreak would have disastrous consequences for the facility’s residents and staff, and the broader surrounding community.” LaRocque Aff. ¶ 21. Dr. Rich agrees and suggests that decarceration may be necessary to prevent the pandemic from devasting the correctional facility. Rich Aff. ¶¶ 21-22.
Petitioners and the proposed class are currently at risk even though there is not yet a confirmed COVID-19 case among detainees at Plymouth. Asymptomatic individuals infected with COVID-19 may still transmit the disease to others through respiratory droplets or physical contamination of surfaces, such as cell bars, telephone receivers, or even shared hand soap. LaRocque Aff. ¶ 7; Rich Aff. ¶ 9. Although none of the Plymouth detainees has tested positive yet for COVID-19, testing at the facility is quite limited. Not long ago, many elected officials cited that very same data point to endorse the continuation of society’s daily routines, notwithstanding the ravages of COVID-19 in other parts of the globe or the United States.
The Supreme Court has made clear that detainees need not show that they are currently infected or suffering “serious health problems” to show that they face a “substantial risk” of serious harm. Helling, 509 U.S. at 34. Corrections officials may not “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” Id. at 33. Nor may corrections officials expose detainees “to a serious, communicable
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disease on the ground that the complaining inmate shows no serious current symptoms.” Id. Absent strict adherence to the CDC’s recommendations, an intolerably high risk persists that when (not if) a proposed class member contracts COVID-19, it will run rampant throughout the facility.
Other district courts have issued temporary restraining orders in advance of a confirmed COVID-19 case among detainees, citing the speed with which the virus would spread within the correctional facilities at issue and the dire consequences of that eventuality. See, e.gs. Basank v. Decker, No. 20-cv-2518 (AT), 2020 WL 1481503, at *5 (S.D.N.Y. Mar. 26, 2020); XochihuaJaimes v. Barr, No. 18-71460, slip op. (9th Cir. Mar. 23, 2020), ECF No. 53 (unpublished); Temporary Restraining Order & Order to Show Cause at 10, Castillo v. Barr, No. 20-cv-605 (TJH) (C.D. Cal. Mar. 27, 2020), ECF No. 32. For example, the U.S. District Court for the Southern District of New York ordered the immediate release of ten people because “[t]he spread of COVID-19 is measured in a matter of a single day — not weeks, months, or years.” Basank, 2020 WL 1481503, at *5. Courts agree that there is a “rapidly escalating public health crisis,” and the “number of cases in the United States has yet to peak.” Xochihua-Jaimes, No. 18-71460, slip op.; Temporary Restraining Order & Order to Show Cause at 10, Castillo, No. 20-cv-605 (TJH).
Cook County Jail serves as a cautionary tale. As of April 8, 2020, 251 detainees and 150 employees at the Jail had tested positive for coronavirus, and one detainee had died of apparent complications from it. See Mays v. Dart, No. 1:20-C-02134-MFK, slip op. at 4 (N.D. Ill. Apr. 9, 2020), ECF No. 47 (citing COVID-19 Cases at CCDOC, Cook Cty. Sheriff's Office, https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/ (as updated on Apr. 8, 2020, 5:00 P.M.)). For a time, that facility had the unfortunate distinction of being “the largest single known source of infections in the nation.” Id. (citing Timothy Williams & Danielle Ivory, Chicago’s Jail is Top U.S. Hot Spot as Virus Spreads Behind Bars (Apr. 8, 2020), N.Y. Times,
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https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html (as updated on Apr. 9, 2020, 8:47 A.M.)). As a result, the U.S. District Court for the Northern District of Illinois ordered the jail to (1) provide pretrial detainees “soap and/or hand sanitizer to all detainees in quantities sufficient to permit them to frequently clean their hands”; (2) “adequate sanitation supplies to enable all staff and detainees to regularly sanitize surfaces and objects on which the virus could be present, including in all areas occupied or frequented by more than one person,” (3) and create a sanitization policy for “frequently touched surfaces and objects,” among other things. Id. at 35.
Dr. Giftos avers that because “there are more people who are susceptible to getting infected all congregated together” in corrections settings “in which fighting the spread of an infection is nearly impossible,” individuals such as those in Respondents’ custody live in a “context in which fighting the spread of an infection is nearly impossible.” Giftos Aff. ¶ 18. In effect, he warns that what happened in Cook County could also happen in Plymouth as well.
These conditions thus subject Petitioners and members of the proposed class to a “substantial risk” of contracting COVID-19.
b. COVID-19 Is a Serious Harm Contracting COVID-19 constitutes a “serious harm.” To demonstrate a “serious harm,” Petitioners must show that “society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling, 509 U.S. at 36. Society does not tolerate exposing anyone unwillingly to COVID-19. The Commonwealth, joining many other states, has shut down all but its “critical infrastructure.” Even those critical infrastructure operations must abide by the CDC’s social distancing recommendations. People have been directed not to leave their homes, except for essential
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activities such as grocery shopping and medical necessities. Society has chosen this course – despite its serious economic costs – because were these extraordinary steps not taken, the human toll would be unacceptable.
This Court itself has recognized that business as usual in the face of the COVID-19 pandemic is untenable. Chief Judge Saylor has acknowledged “the public emergency arising out of the coronavirus epidemic,” and ordered measures to curtail mass gatherings so as “to protect public health.” General Order 20-13 (D. Mass. Mar. 30, 2020). Indeed, this Court went so far as to close the Springfield courthouse after one employee “reported symptoms consistent with COVID-19.” General Order 20-7 (D. Mass. Mar. 23, 2020). The Court did not wait for a confirmed diagnosis and did not simply quarantine the stricken employee: it acted immediately and shut down the entire building. Id.
The expert affidavits and epidemiological data demonstrate the deadly risk of COVID-19. Dr. LaRocque points out that this risk extends not only to the elderly, but also to the young: “from February 12 to March 16, nearly 40% of American COVID-19 patients who were hospitalized were between the ages of 20 and 54” LaRocque Aff. ¶ 3. According to the CDC, in total, 12.3 percent of people who tested positive for COVID-19 require hospitalization and, according to data compiled by Johns Hopkins University, 4.27% of those with a confirmed COVID-19 diagnosis die. See Coronavirus Disease 2019 (COVID-19), COVIDView, CDC (last updated Apr. 10, 2020), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html#hospitalizations; COVID-19 Dashboard, Johns Hopkins Univ. (Apr. 14, 2020), https://www.arcgis.com/apps/opsd ashboard/index.html#/bda7594740fd40299423467b48e9ecf6. Physicians and epidemiologists agree: COVID-19 risks serious harm to those suffering from it.
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It is not just medical experts that draw that conclusion: elected officials consider COVID19 a grave risk. On March 13, 2020, President Trump declared a national emergency and noted that “[t]he spread of COVID-19 within our Nation’s communities threatens to strain our Nation’s healthcare systems.” Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, White House (Mar. 13, 2020), https://www.whiteho use.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novelcoronavirus-disease-covid-19-outbreak/. Governor Baker’s Declaration of a State of Emergency states that “the worldwide outbreak of COVID-19 and the effects of its extreme risk of person-toperson transmission throughout the United States and the Commonwealth significantly affect the life and health of our people, as well as the economy, and is a disaster that impacts the health, security, and safety of the public.” Exec. Order No. 591, Commw. of Mass. (Mar. 10, 2020).
As a consequence, courts concur that COVID-19 risks serious harm to people in jails and prisons. In this very district, Judge Young relied on the CDC’s data to conclude that COVID-19 “is gravely dangerous to all of us.” Savino v. Souza, Civ. A. No. 20-10617, slip op. at 21 (D. Mass. Apr. 8, 2020), ECF No. 64. Moreover, the Supreme Judicial Court cited “the severity of the COVID-19 pandemic” in ordering the release of certain pretrial detainees. Comm. for Pub. Counsel Servs. v. Chief Justice of Trial Ct., No. SJC-12926, 2020 WL 1659939, at *10 (Mass. Apr. 3, 2020). Other federal and state courts have agreed. See Basank, 2020 WL 1481503, at *3 (citing United States v. Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020); United States v. Garlock, No. 18-cr-418 (VC), 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020)).
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Additionally, courts in the First Circuit have recognized that tuberculosis – a disease with a less severe mortality rate6 – constitutes a “serious harm” for Eighth Amendment purposes. See, e.gs., Morales Feliciano v. Rossello Gonzalez, 13 F. Supp. 2d 151, 208 (D.P.R. 1998) (ruling that failure to “properly isolate cases of active tuberculosis inflicts cruel and unusual punishment on particular individuals at present, endangers their health in the future and threatens the health of all the members of the class”); Palmigiano v. Garrahy, 639 F. Supp. 244, 258 (D.R.I. 1986) (observing that “tuberculosis is a very serious concern in prisons”).
Therefore, Petitioners and the proposed class will likely prevail on their Fifth Amendment claim because the evidence demonstrates that (1) they are at “substantial risk” of contracting COVID-19; and (2) contracting COVID-19 would cause them “serious harm.”
2. Respondents have acted with deliberate indifference to the risk of COVID-19 infection.
To prevail on their Eighth Amendment claim, Petitioners must show that Respondents were subjectively deliberately indifferent to the conditions at Plymouth that exposed Petitioners and proposed class members to a substantial risk of serious harm from COVID-19. See Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014). However, an objective standard arguably applies to the deliberate indifference element of Petitioners’ Fifth Amendment claim. In Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2473 (2015), in which a pretrial detainee brought an excessive force claim against several jail officers under the Due Process Clause, the Supreme Court held that an objective standard applied to the deliberate indifference prong of plaintiff’s due process claim. Because the Due Process Clause protects pretrial detainees from actions that are not “rationally related to a legitimate nonpunitive governmental objective” or are “excessive in
6 A study of tuberculosis in the United States suggested that its mortality rate is 2.1%. See Chou-Han Lin et al., Tuberculosis Mortality: Patient Characteristics and Causes, 14 BMC INFECTIOUS DISEASES (2014).
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relation to that purpose,” the Supreme Court determined that a pretrial detainee need not show subjective intent to prevail. Id. The Court held that whether defendants’ use of force was “cruel or unusual,” – the standard formulation for an Eight Amendment claim – was irrelevant to the plaintiff’s claim because a pretrial detainee cannot be punished at all. Id. at 2475. That analytical approach applies to all due process claims lodged by pretrial detainees, not just claims of excessive force.
In the wake of Kingsley, several circuit courts have applied this objective standard to the deliberate indifference prong of pretrial detainees’ due process claims for unlawful conditions of confinement. See Miranda v. Cty. of Lake, 900 F.3d 335, 351 (7th Cir. 2018) (medical-care claims brought by pretrial detainees are subject to objective unreasonableness inquiry); Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (applying the objective standard to complaints about conditions of confinement); Castro v. Cty. of L.A., 833 F.3d 1060, 1070-71 (9th Cir. 2016) (applying objective inquiry to detainees’ failure-to-protect claims); see also Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018) (recognizing the “shift in Fourteenth Amendment deliberate indifference jurisprudence [that] calls into serious doubt whether [the plaintiff] need even show that the individual defendant-officials were subjectively aware of her serious medical conditions and nonetheless wantonly disregarded them”).7 Kingsley prompted the Second Circuit to overrule its precedent and to adopt an objective standard of proof with respect to deliberate indifference in Fifth Amendment due process claims. See Darnell, 849 F.3d at 36 (“Kingsley’s broad reasoning extends beyond the excessive force context in which it arose.”). While the First Circuit has not
7 The Eighth and Eleventh circuits have confined Kingsley to its facts without analysis. See Whitney v. City of St. Louis, 887 F.3d 857, 860 n.4 (8th Cir. 2018); Nam Dang by & through Vina Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017). Citing the “rule of orderliness,” the Fourth Circuit declined to address Kingsley’s application to conditions of confinement claims. See Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 420 n.4 (5th Cir. 2017) (declining to reconsider standard of intent post-Kingsley).
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had the opportunity to address the deliberate indifference standard for Fifth Amendment condition of confinement claims since Kingsley and Darnell were decided, Kingsley’s reasoning fatally undermines the application of a subjective standard to deliberate indifference in Fifth Amendment due process claims. Compare Kingsley, 135 S. Ct. at 2475 (reasoning that requiring objective knowledge was appropriate for pretrial detainee’s due process claims) with Ruiz-Rosa v. Rullan, 485 F.3d 150, 154 (1st Cir. 2007) (defining deliberate indifference to medical care subjectively).8
Petitioners are likely to prevail under the subjective standard of their Eighth Amendment claim. Therefore, even were this Court to require subjective knowledge for pretrial detainees’ due process claims, Petitioners would also succeed under their Fifth Amendment claim because they are likely to establish that Respondents acted knowingly. Under the subjective test, Petitioners must show both that (1) the defendant “knows of” the identified risk, and (2) the defendant “disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Respondents’ failure to protect Petitioners from a dire risk of infection with COVID-19, despite clear guidance from the CDC and widespread recognition of the deadly consequences of flouting needed protective measures, amounts to deliberate indifference, whether evaluated under an objective or subjective standard.
There is overwhelming evidence that Respondents “knew of a substantial risk” posed by COVID-19. Dr. Baker’s own words reveal as much: He concedes “it is clear that a prison setting poses particular challenges from an infectious disease standpoint”; Plymouth’s staff is “acutely aware of the risks posed by the pandemic; and “this pandemic presents unique challenges.” Baker
8 But see Couchon v. Cousins, No. 17-cv-10965-RGS, 2018 WL 4189694, at *6 (D. Mass. Aug. 31, 2018) (commending reasoning of Second and Ninth Circuits, but concluding district court lacks authority to follow suit given First Circuit’s pre-Kingsley precedent).
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Decl. ¶¶ 21, 24. These concessions doom any argument that Respondents did not know of the substantial risk of COVID-19.
Even without these fatal admissions, the evidence shows that Respondents knew of this risk. Governor Baker declared a state of emergency in the Commonwealth of Massachusetts on March 10, 2016, which has been followed by more than 21 emergency orders, ranging from school and business closures to prohibition of public gatherings. Class Action Pet. ¶¶ 35-37. The Massachusetts Supreme Judicial Court drew attention to correctional institutions’ inability to keep adequate physical distance between inmates and maintain proper sanitation. See Comm. for Pub. Counsel Servs., 2020 WL 1659939, at *3. Noting that individuals in prisons and jails have an increased prevalence of underlying conditions that can make COVID-19 fatal, the SJC warned that an outbreak in correctional institutions could have severe ramifications outside of them, as inmates in need of specialized medical interventions are transferred to overburdened outside hospitals and correctional and medical staff bring the virus home. See id. at *3-4. On April 3, the SJC ordered Massachusetts sheriffs –one of whom is also a Respondent in this case – to report daily to a special master on the number of COVID-19 tests and positive results. Id. at *15. In the federal system, Attorney General Barr has found that COVID-19 constitutes an emergency condition in the federal corrections system and “time is of the essence” in responding to it. Memo from Att’y Gen. to Dir. of Bureau of Prisons, U.S. Dep’t of Justice, at 2, Apr. 3, 2020.
Petitioners and proposed class members are also likely to prevail in showing that Respondents have disregarded and continue to disregard the excessive risk to their health or safety. Dr. LaRocque notes that, although there is still uncertainty about how COVID-19 spreads, recent data shows that it can spread easily even when the person transmitting the virus has light or no symptoms. The latest data from Johns Hopkins University indicates that the mortality rate for
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COVID-19 in the United States is 4.27%. See COVID-19 Dashboard, Johns Hopkins Univ. (Apr. 14, 2020), https://www.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b 48e9ecf6. Given that corrections facilities tend to house more people with chronic medical conditions that make the virus more severe, the mortality rate could be even higher at Plymouth. Giftos Aff. ¶ 16; Rich Aff. ¶ 23.
The very failures of Respondents in this case have been found to constitute deliberate indifference in like cases. For instance, in Morales Feliciano v. Rossello Gonzales, 13 F. Supp. 2d 151 (D.P.R. 1998), the Court found that the defendant’s “inability . . . to properly isolate cases of active tuberculosis,” the “insufficient medical dormitory beds,” the failure to “fully screen incoming inmates,” and the failure to “provide for a sick call system that ensures access to care and that is capable of effectively handling emergencies” constituted deliberate indifference. Id. at 208-09. In another case, the defendant’s inability to “adequately quarantine or remove inmates and support personnel known to have active tuberculosis” was found to constitute deliberate indifference. Shimon v. Dep’t of Corr. Servs. for N.Y., No. 93-cv-3144 (DC), 1996 WL 15688, at *1 (S.D.N.Y. Jan. 17, 1996). Here, Respondents at the very least have not informed Petitioners or the public as to the steps they plan to take to effectively isolate a resident who shows any COVID19 symptoms. This uncertainty has caused residents to assume the worst and thus keep their medical issues to themselves. Halpern Aff. ¶ 10. After all, less than half of the staff wear masks and many come within six feet of each other and of residents. Halpern Aff. ¶¶ 6, 11.
Respondents’ deliberate indifference can also be shown by their failure to follow accepted medical standards. The court in Hernandez v. County of Monterey, 110 F. Supp. 3d 929 (N.D. Cal. 2015) explained that “known noncompliance with generally accepted guidelines for inmate health strongly indicates deliberate indifference to a substantial risk of serious harm.” Id. at 943.
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Dr. LaRocque notes that Respondents’ decision not to institute any social distancing measures does not adhere to the CDC’s guidance. She also explains that the situation is worsened by the fact that the staff does not universally wear masks and does not provide them to residents. Further, she points out that Respondents do not appear to sanitize risky areas, such as showers and bathrooms, in accordance with the CDC’s guidance. LaRocque Aff.¶ 19 ; Peachy Aff. ¶ 9; Halpern Aff. ¶ 9.
In the context of COVID-19, courts have found deliberate indifference on similar records. In Mays v. Dart, No. 1:20-cv-02134-MFK (N.D. Ill. Apr. 9, 2020), ECF No. 47, the court found that numerous aspects of defendants’ measures to protect inmates from infection were not objectively reasonable, and ordered immediate remediation of each deficiency. Among other measures, the court required increased testing, provision of soap and/or hand sanitizer, sanitation between all uses of frequently touched surfaces and objects, and provision of facemasks to all quarantined detainees. See id. at 34-36. In Swain v. Junior, No. 1:20-cv-21475-KMW (S.D. Fla. Apr. 7, 2020), ECF No. 25, the court ordered defendants to provide adequate sanitation and disinfecting supplies, require all jail staff and inmate workers to wear personal protective equipment, and ensure access to testing for anyone displaying symptoms of COVID-19. In Basank v. Decker, No. 20-cv-2518 (AT), 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020), the court rejected the measures taken by the jail in that case, including “screening detainees upon intake for risk factors, isolating detainees who report symptoms, . . . providing soap and hand sanitizer to inmates, and increasing the frequency and intensity of cleaning jail facilities.” Id. at *5. Regarding those policies, the Court held that they “are patently insufficient to protect Petitioners,” because the jail “could not represent that the detention facilities were in a position to allow inmates to remain six feet apart from one another, as recommended by the [CDC].” Id.
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The record evidence thus shows that Respondents failed to act with reasonable care to mitigate the risk of COVID-19 even though Respondents knew, or should have known, of that risk. At Plymouth, Respondents themselves admit that approximately half of their detainees sleep and/or eat within six feet of one another. Inmates reportedly receive one small bar of soap and one roll of toilet paper per week. Most correctional officers do not wear masks and the facility remains as visibly dirty as before the pandemic. Residents of Plymouth report being afraid to state that they are feeling unwell because they fear being moved into a quarantine unit populated by residents with COVID-19 symptoms. See Halpern Aff. ¶ 10.
B. Petitioners and proposed class members will suffer irreparable harm. Immediate injunctive relief is necessary to avert the rapid spread of a disease that can cause serious injury or death. Infection with a potentially fatal disease is irreparable, as it “cannot adequately be compensated for either by a later-issued permanent injunction, after a full adjudication on the merits, or by a later-issued damages remedy.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005). This is far from a case based on “conjecture, surmise, or . . . unsubstantiated fears.” Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004) (there must be a “realistic prospect” of irreparable harm). Without immediate release of Petitioners or adherence to CDC guidelines, it is only a matter of time before the virus ravages detention facilities in Massachusetts. Given the contagious nature of the disease and the conditions at Respondents’ facility, absent a temporary restraining order, Petitioners and proposed class members face serious illness, long-term health issues, and possible death from a virus with no known cure and no vaccine. COVID-19 has already entered the state’s correctional facilities. At least 64 inmates in Massachusetts correctional facilities have tested positive for COVID-19. See Betancourt, supra. As the world now knows from watching the same scene unfold time and again, the growth of
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positive cases will be exponential. At Cook County jail in Chicago, the number of positive cases among inmates and staff at the facility skyrocketed from 38 to 450 in less than a week. Without adequate testing, low numbers of positive cases are a mirage.
A “serious, daily risk” to Petitioners’ health qualifies as an irreparable harm. Watts v. Organogenesis, Inc., 30 F. Supp. 2d 101, 111 (D. Mass. 1998) (finding irreparable harm where plaintiff risked “stroke, heart attack, or death if” she did not receive proper nursing services). The Court must not wait until each individual is infected with COVID-19 — by then it will be too late to prevent the irreparable harm Petitioners and proposed class members face. See Pesce v. Coppinger, 355 F. Supp. 3d 35, 48 (D. Mass. 2018) (reasoning that pretrial detainee that facility refused to treat with methadone faced irreparable harm because he presented a “high risk of overdose and death upon his release if not treated” in pretrial detention) (internal quotation marks omitted). Courts in other districts have found that even the failure to test for a disease suffices. See Boone v. Brown, No. 05-cv-750 (AET), 2005 WL 2006997, at *14 (D.N.J. Aug. 22, 2005) (allegation of refusal to provide adequate testing for highly contagious infectious disease sufficient to demonstrate irreparable harm); Austin v. Pa. Dep’t of Corr., No. 90-cv-7497 (JED), 1992 WL 277511, at *7 (E.D. Pa. Sept. 29, 1992) (granting preliminary injunction for prison to develop testing and protocol for tuberculosis); see also Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (correctional officers have an affirmative obligation to protect prisoners from infectious disease). The only known way to prevent the spread of the virus is by adherence to rigorous sanitation, testing, and social distancing. Respondents’ failure to adhere to these measures presents a dire risk of irreparable harm to Petitioners. Delay is a death sentence.
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C. An injunction furthers the public interest and the equities favor Petitioners and the proposed class.
When the government opposes a preliminary injunction, the public interest and balancing of the equities inquires merge. See Devitri v. Cronen, 289 F. Supp. 3d 287, 297 (D. Mass. 2018) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). And because Petitioners show that Respondents violated their constitutional rights, enjoining their unconstitutional behavior serves the public interest “because all citizens have a stake in upholding the Constitution.” Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005). Since one can judge a society by entering its prisons, “[t]he public has an especially strong interest in ensuring that its prisons are operated in a safe, constitutional, and non-discriminatory manner.” Reaves v. Dep’t of Corr., 195 F. Supp. 3d 383, 426-27 (D. Mass. 2016) (quoting Davis v. Ayala, 576 U.S. 257, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring)). This “especially strong interest” independently justifies an injunction here.
But the public interest in this case extends beyond the walls of Plymouth: a COVID-19 outbreak there could have devastating effects outside them. Advancing the “public health” qualifies as “a significant, perhaps compelling, state interest.” Philip Morris, Inc. v. Reilly, 312 F.3d 24, 44 (1st Cir. 2002) (en banc).
Public health officials and medical professionals have concluded that the crucial step to minimize the spread of COVID-19 is to downsize jail populations. In Dr. Rich’s expert opinion, reducing the number of residents at Plymouth will “flatten the curve of Covid-19 cases among incarcerated populations and … limit the impact of transmission both inside correctional facilities and in the community.” Rich Aff. ¶ 22. That is because, given the churn of residents and staff through Plymouth, the outbreak of COVID-19 in the jail will not be confined to it. Dr. Rich explains that residents of detention facilities “are at heightened risk for severe illness” caused by
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COVID-19 and “[t]he abrupt onset of severe COVID-19 infections among incarcerated individuals will require mass transfers to local hospitals” for intensive medical and ventilator care, which are “highly expensive interventions that are already in very short supply.” Rich Aff. ¶¶ 15, 23-24. He thus concludes that “[e]ach severely ill patient coming from Plymouth who occupies an ICU bed may mean others may die for inability to obtain care.” Rich Aff. ¶ 24 . The Supreme Judicial Court has agreed that a COVID-19 outbreak in the Commonwealth’s detention facilities threatens the public health and thus imposed strict reporting requirements on prison administrators. See Comm. for Pub. Counsel Servs., 2020 WL 1659939, at *15.
Here, denying relief would not further any public interest. Any additional administrative complexity that relief might cause – and Petitioners do not concede that it would cause any at all – would be outweighed by the lives it would save. What’s more, that burden does not justify refusing to take steps necessary to protect the health and safety of Petitioners under the Fifth and Eighth Amendments. See Pesce, 355 F. Supp. 3d at 49. That potential burden pales in comparison to what is at stake to Petitioners, the class, and the public if preliminary relief is not issued.
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CONCLUSION For all these reasons, the Court should certify a conditional class and grant a preliminary injunction, or, alternatively, a temporary restraining order providing the relief that Petitioners request in their accompanying motion.

/s/ Daniel Cloherty Daniel J. Cloherty (BBO # 565772) Saraa Basaria (BBO # 685705) TODD & WELD LLP One Federal Street, 27th Floor Boston, MA 02110 (617) 720-2626 dcloherty@toddweld.com sbasaria@toddweld.com

/s/ Emily Schulman Emily R. Schulman (BBO #566374) Adam W. McCall (pro hac vice pending) WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6077 emily.schulman@wilmerhale.com adam.mccall@wilmerhale.com
David E. Rudin (pro hac vice pending) WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 937-7249 david.rudin@wilmerhale.com
Attorneys for Anthony Baez, Jonathan
Bermudez, Jermaine Gonsalves, and
Dedrick Lindsey and the proposed class

39

Case 1:20-cv-10753-LTS Document 10 Filed 04/17/20 Page 48 of 48 CERTIFICATE OF SERVICE
I, Emily R. Schulman, counsel for Petitioners, hereby certify that this document has been filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF); this document is being sent by first class mail to the Respondents c/o Patrick Lee, Director of Legal/Civil Process, Plymouth County Sheriff's Department, 24 Long Pond Road, Plymouth, MA 02360 and by email at plee@pscdma.org and to Rayford Farquhar, AUSA, United States Attorney’s Office, One Courthouse Way, Boston, MA 02210 and by email at Rayford.Farquhar@usdoj.gov.
/s/ Emily Schulman Emily R. Schulman
40

 
 Case 1:20-cv-10753-LTS Document 21 Filed 04/21/20 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ANTHONY BAEZ, JONATHAN BERMUDEZ )

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated,

)

)

Petitioners,

)

)

v.

)

)

ANTONE MONIZ,

)

)

Respondent.

)

Civil Action No. 20-10753-LTS

RESPONDENT ANTONE MONIZ’S MOTION TO DENY PETITIONERS’ HABEAS PETITION FOR LACK OF SUBJECT MATTER JURISDICTION AND FOR FAILURE TO STATE A CLAIM

Respondent Antone Moniz, Superintendent of the Plymouth County Correctional Facility (“Respondent”), by and through his attorney, Andrew E. Lelling, United States Attorney for the District of Massachusetts, respectfully moves, pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, to deny Petitioner Anthony Baez’s, Petitioner Jonathan Bermudez’s, Petitioner Jermaine Gonsalves’s, and Petitioner Dedrick Lindsey’s (collectively, “Petitioners”) Class Action Petition Seeking Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Complaint for Declaratory and Injunctive Relief (the “Petition”) (Doc. # 1). The grounds for this motion are set forth in the accompanying memorandum of law and exhibits, and are summarized immediately below.
Petitioners are federal pretrial criminal detainees charged with serious drug and gun crimes. They challenge the conditions of their confinement at the Plymouth County Correctional Facility as inadequate to address the threat to health and safety posed by COVID-19. Rather than availing

Case 1:20-cv-10753-LTS Document 21 Filed 04/21/20 Page 2 of 4
themselves of (or exhausting) the opportunities for seeking release in their respective criminal
cases under the Bail Reform Act, Petitioners filed this civil action on behalf of themselves and a
putative class seeking a highly extraordinary injunction that would require Respondent
immediately to release some number of detainees, that would appoint an expert to recommend who
and how many more detainees to release, and that would require this Court to function as a judicial
monitor regarding the conditions of a state prison.
The Petition and its highly extraordinary relief must be denied for the following multiple
independent reasons:
• First, this Court lacks subject matter jurisdiction under the Prison Litigation Reform Act, which places strict limits on a district court’s ability to order the release of inmates and expressly precludes a single district judge from doing so. 18 U.S.C. § 3626(a)(3); Money v. Pritzker, No. 20-cv-2093, 2020 WL 1820660, at *1, 13 (N.D. Ill. April 10, 2020) (recognizing that, although “the issue of inmate health and safety is deserving of the highest degree of attention,” an “order imposing a court-ordered and court-managed ‘process’ for determining who should be released” from a state prison in response to the COVID-19 pandemic falls “squarely within Section 3626(a)(3)—which forbids this Court from granting it”).
• Second, Petitioners lack standing because they cannot establish either injury in fact or redressability. Specifically, the site-specific circumstances in this case—(1) that there are zero cases of COVID19 in the detainee population, (2) that a staff member tested positive in mid-March and yet there are still no cases of COVID-19 in the detainee population as of April 20, (3) that units housing Petitioners are well under capacity and, indeed, two of the Petitioners have their own cells, (4) that Respondent takes a variety of precautions that reasonably provide for adequate social distancing when Petitioners are in common areas, and (5) that Petitioners do not have any medical conditions that present a higher risk for COVID-19— demonstrate that Petitioners’ alleged injury is speculative and will not be redressed by ordering their release.
• Third, Petitioners failed to exhaust administrative remedies—and, indeed, did not even attempt to file an emergency grievance—before filing this case, contrary to the Prison Litigation Reform Act’s mandatory exhaustion requirements. 42 U.S.C. § 1997e(a).
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Case 1:20-cv-10753-LTS Document 21 Filed 04/21/20 Page 3 of 4
• Finally, there is no basis in law that would allow Respondent to reduce its detainee population when those detainees are subject to orders of detention, or that would allow a court-appointed expert to usurp that judicial function. Seeking those remedies in this civil case potentially abuses the writ of habeas corpus, unduly duplicates judicial efforts, and circumvents traditional remedies afforded to safeguard a criminal defendant’s liberty interests.
Not only does the Petition suffer from these multiple legal defects that warrant dismissal,
but it also suffers from a distorted picture of the efforts—which, to date, are entirely successful—
to protect detainees at Plymouth County Correctional Facility from the threat to health and safety
posed by COVID-19. Petitioners make bold accusations based on hearsay and purported experts
who have never been to Plymouth County Correctional Facility or at least not recently. In the
accompanying memorandum of law, based on multiple declarations of percipient witnesses,
Respondent describes the numerous, comprehensive, and impressive efforts of the many public
servants at Plymouth County Correctional Facility doing their level best in difficult circumstances.
WHEREFORE, Respondent respectfully requests that the Court deny the Petition and
dismiss the case.
Respectfully submitted,
ANTONE MONIZ Superintendent of the Plymouth County Correctional Facility
By his attorneys,
ANDREW E. LELLING, United States Attorney
By: /s/ Jason C. Weida Jason C. Weida Assistant U.S. Attorney United States Attorney’s Office 1 Courthouse Way, Suite 9200
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Case 1:20-cv-10753-LTS Document 21 Filed 04/21/20 Page 4 of 4

Dated: April 21, 2020

Boston, Massachusetts 02210 (617) 748-3180 Jason.Weida@usdoj.gov

LOCAL RULE 7.1(a)(2) CERTIFICATION
I hereby certify that, by email on April 19 and 20, 2020, I conferred with counsel for Petitioner, who would not assent to the relief sought in this motion.
/s/ Jason C. Weida Jason C. Weida Assistant U.S. Attorney

3

Case 1:20-cv-10753-LTS Document 22 Filed 04/21/20 Page 1 of 30

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ANTHONY BAEZ, JONATHAN BERMUDEZ )

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated,

)

)

Petitioners,

)

)

v.

)

)

ANTONE MONIZ,

)

)

Respondent.

)

Civil Action No. 20-10753-LTS
Leave To File Granted On April 21, 2020

RESPONDENT ANTONE MONIZ’S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO DENY PETITIONERS’ HABEAS PETITION FOR LACK OF SUBJECT MATTER JURISDICTION AND FOR FAILURE TO STATE A CLAIM

Dated: April 21, 2020

ANDREW E. LELLING United States Attorney
JASON C. WEIDA Assistant U.S. Attorney
United States Attorney’s Office John Joseph Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, Massachusetts 02210 (617) 748-3180 jason.weida@usdoj.gov
Attorneys for the Government

Case 1:20-cv-10753-LTS Document 22 Filed 04/21/20 Page 2 of 30
Respondent Antone Moniz, Superintendent of the Plymouth County Correctional Facility (“Respondent”), respectfully submits this memorandum of law in support of his motion to deny Petitioner Anthony Baez’s (“Baez”), Petitioner Jonathan Bermudez’s (“Bermudez”), Petitioner Jermaine Gonsalves’s (“Gonsalves”), and Petitioner Dedrick Lindsey’s (“Lindsey,” and collectively, “Petitioners”) Class Action Petition Seeking Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Complaint for Declaratory and Injunctive Relief (the “Petition”) (Doc. # 1) for lack of subject matter jurisdiction and for failure to state a claim on which relief can be granted pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure.
INTRODUCTION Petitioners are federal pretrial criminal detainees charged with serious drug and gun crimes. They challenge the conditions of their confinement at the Plymouth County Correctional Facility as inadequate to address the threat to health and safety posed by COVID-19. Rather than availing themselves of (or exhausting) the opportunities for seeking release in their respective criminal cases under the Bail Reform Act, Petitioners filed this civil action on behalf of themselves and a putative class seeking a highly extraordinary injunction that would require Respondent immediately to release some number of detainees, that would appoint an expert to recommend who and how many more detainees to release, and that would require this Court to function as a judicial monitor regarding the conditions of a state prison. The Petition and its highly extraordinary relief must be denied for the following multiple independent reasons: • First, this Court lacks subject matter jurisdiction under the Prison
Litigation Reform Act, which places strict limits on a district court’s ability to order the release of inmates and expressly precludes a single district judge from doing so. 18 U.S.C. § 3626(a)(3).
1

Case 1:20-cv-10753-LTS Document 22 Filed 04/21/20 Page 3 of 30
• Second, Petitioners lack standing because they cannot establish either injury in fact or redressability. Specifically, the site-specific circumstances in this case—(1) that there are zero cases of COVID19 in the detainee population, (2) that a staff member tested positive in mid-March and yet there are still no cases of COVID-19 in the detainee population as of April 20, (3) that units housing Petitioners are well under capacity and, indeed, two of the Petitioners have their own cells, (4) that Respondent takes a variety of precautions that reasonably provide for adequate social distancing when Petitioners are in common areas, and (5) that Petitioners do not have any medical conditions that present a higher risk for COVID-19— demonstrate that Petitioners’ alleged injury is speculative and will not be redressed by ordering their release.
• Third, Petitioners failed to exhaust administrative remedies—and, indeed, did not even attempt to file an emergency grievance—before filing this case, contrary to the Prison Litigation Reform Act’s mandatory exhaustion requirements. 42 U.S.C. § 1997e(a).
• Finally, there is no basis in law that would allow Respondent to reduce its detainee population when those detainees are subject to orders of detention, or that would allow a court-appointed expert to usurp that judicial function. Seeking those remedies in this civil case potentially abuses the writ of habeas corpus, unduly duplicates judicial efforts, and circumvents traditional remedies afforded to safeguard a criminal defendant’s liberty interests.
Not only does the Petition suffer from these multiple legal defects that warrant dismissal,
but it also suffers from a distorted picture of the efforts—which, to date, are entirely successful—
to protect detainees at Plymouth County Correctional Facility from the threat to health and safety
posed by COVID-19. Petitioners make bold accusations based on hearsay and purported experts
who have never been to Plymouth County Correctional Facility or at least not recently. Below,
based on multiple declarations of percipient witnesses, Respondent describes the numerous,
comprehensive, and impressive efforts of the many public servants at Plymouth County
Correctional Facility doing their level best in difficult circumstances.
For these and other reasons discussed below, the Court should deny the Petition.
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Case 1:20-cv-10753-LTS Document 22 Filed 04/21/20 Page 4 of 30
BACKGROUND A. COVID-19 In Massachusetts.
On March 10, 2020, Governor Charlie Baker declared a state of emergency in Massachusetts based on the 2019 novel Coronavirus (“COVID-19”) that originated in Wuhan, China.1 As of April 20, 2020, there are 38,077 cases of COVID-19.2 Of those 38,077 cases of COVID-19 in Massachusetts, 2,832 cases are in Plymouth County.3 The population of Plymouth County is around 521,202.4 Based on those figures, about half of one percent of the population in Plymouth County has COVID-19 (2,832 out of 521,202). The Town of Plymouth, where the Plymouth County Correctional Facility (“PCCF”) is located, has 108 cases of COVID-19.5 With a population of 60,803,6 less than 2/10th of one percent of the population of the Town of Plymouth has COVID-19 (108 out of 60,803). B. Efforts To Prevent Exposure To COVID-19
At The Plymouth County Correctional Facility. PCCF is a correctional facility that houses inmates and detainees, including federal pretrial criminal detainees like Petitioners here. The Plymouth County Sheriff’s Department (“Department”) operates the PCCF. See Decl. of Joseph D. McDonald, Jr., attached as Exhibit A
1 See https://www.mass.gov/executive-orders/no-591-declaration-of-a-state-of-emergency -to-respond-to-covid-19 (last visited Apr. 20, 2020).
2 See https://www.mass.gov/doc/covid-19-cases-in-massachusetts-as-of-april-19-2020/ download (last visited Apr. 20, 2020).
3 See id. 4 See https://www.census.gov/quickfacts/plymouthcountymassachusetts (last visited Apr. 20, 2020) (estimate dated July 1, 2019). 5 See https://www.mass.gov/info-details/covid-19-cases-quarantine-and-monitoring# covid-19-cases-in-massachusetts (last visited Apr. 20, 2020) (link to Word document on webpage). 6 See https://www.census.gov/quickfacts/plymouthtownplymouthcountymassachusetts (last visited Apr. 20, 2020) (estimate dated July 1, 2018).
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Case 1:20-cv-10753-LTS Document 22 Filed 04/21/20 Page 5 of 30
hereto, ¶ 2. The Department has a contract with the Correctional Psychiatric Services (“CPS”) to
provide comprehensive medical services to inmates and detainees at the PCCF. See Decl. of
Lawrence Baker, M.D., attached as Exhibit B hereto, ¶ 1. The Department and CPS provide
services to Petitioners pursuant to an Inter-Governmental Service Agreement (“IGA”) with the
U.S. Marshals Service (“USMS”). See Decl. of John Sheehan, attached as Exhibit C hereto. As
described below, all three entities—the Department, CPS, and USMS—have endeavored and,
indeed, succeeded through the present time to prevent exposure to inmates and detainees at PCCF.
1. The Plymouth County Sheriff’s Department Has Instituted Protocols At The Plymouth County Correctional Facility To Prevent Exposure to COVID-19.
Since the onset of COVID-19, the Department has instituted strict protocols at PCCF to
prevent exposure to inmates and detainees. Ex. A ¶ 6. Those protocols include the following:
• Beginning in February, the Department enhanced its inmate intake procedure to obtain additional information about travel and exposure to illness. Id.
• The Department has adopted treatment and detection practices consistent with guidelines from the CDC and DPH. The Department’s health services administrator is in frequent contact with DPH and consults them on the challenges facing the Department. Id.
• The Department suspended visits by friends, families, and volunteers. To assist with the transition, the Department arranged with its telephone vendors to provide two free calls per week. Id.
• The Department restricted attorney visits to non-contact. The Department disabled monitoring and recording functions for visit phones. Id.
• The Department has kept non-essential staff from entering PCCF, consistent with the governor’s order for executive staff. Id.
• The Department has ceased inmate assignments to the farm operation, community work crew, and other work details outside PCCF. Id.
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• The Department has eliminated unnecessary movement within PCCF. Id.
• The Department established a housing unit for newly admitted inmates and inmates who leave and return to PCCF, to monitor for signs and symptoms of the virus. Inmates remain in the unit until they clear the incubation period. Id.
• The Department has worked with Trial Court officials to limit travel outside PCCF by conducting hearings by videoconference and telephone. This greatly has reduced travel to and from PCCF and resulting potential exposure. Id.
• The Department has changed recreation and meal schedules to provide more space in the dayrooms. Inmates and detainees in standard large and small housing units have split recreation schedules so that approximately half are permitted access to the day room at one time. The inmates and detainees have split meal periods, as well. Id.
• The Department maintains an aggressive cleaning schedule for the housing units and conducts daily sanitation of transportation vans. Id.
• The Department has educated staff and inmates on sanitation practices and proper social distancing. The Department provides soap to the inmates and detainees weekly and as needed. The Department also provides cleaning supplies. Id.
• The Department conducts temperature screenings for all employees, contractors, and visitors to PCCF. Id.
• The Department has provided surgical masks for all PCCF staff and inmates. The Department encourages all staff to wear masks while on duty. The Department encourages inmates to wear masks while out of their cells and requires them to wear masks while working or when leaving the housing unit. Id.
• The Department has installed hand sanitizer dispensers in every housing unit. Id.
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Case 1:20-cv-10753-LTS Document 22 Filed 04/21/20 Page 7 of 30
2. Correctional Psychiatric Services Deployed Clinical Guidelines To Prevent Exposure to COVID-19 At The Plymouth County Correctional Facility.
In addition to the Department’s protocols described above, CPS deployed a set of clinical
guidelines, titled CPS Clinical Guideline for COVID-19/CORONAVIRUS (“CPS Clinical
Guideline”), to educate and guide CPS staff, including the seven fulltime staff members at PCCF.7
Ex. B ¶¶ 6, 8. “The CPS Clinical Guideline follows the most recent guidance pertaining to
correctional and detention facilities from the Centers for Disease Control and U.S. Immigration
and Customs Enforcement, as well as recommendations from the Massachusetts Department of
Public Health and the World Health Organization.” Id. ¶ 8.
Among other things, the CPS Clinical Guideline provides as follows:
• The CPS Clinical Guideline lists the possible symptoms of a COVID-19 infection and states that upon identification of any of those symptoms (i.e., fever, cough, shortness of breath, loss of smell or taste, sore throat, tiredness, or diarrhea) the patient should immediately be masked. Id. ¶ 9.
• The CPS Clinical Guideline provides that if a patient presents with fever and any other symptoms then the medical staff is to perform a rapid test for Influenza A and B. If the influenza test is negative, then medical staff is to test for COVID-19. If a COVID-19 test is positive, then staff are instructed to monitor vital signs, especially temperature and oxygen saturation twice a day; offer acetaminophen 650 mg. twice per day or as needed for coronavirus symptoms for one week; monitor the patient’s respiratory status to include oxygen saturation, trouble breathing, persistent chest pain or pressure, new onset of confusion or inability to arouse and any signs of cyanosis, and nurses are to notify the on-call doctor immediately if any symptoms are present and discuss possible transport to the local emergency room; and restrict patient movement unless emergent for anyone in isolation. Any movement while in isolation requires that staff wear a mask with shield, gloves and gown. Id. ¶ 10.
7 Note that these seven fulltime CPS staff members at PCCF are in addition to “[t]he Department’s nursing staff,” which “consists of 21 full-time employees plus a nursing supervising lieutenant.” Ex. A ¶ 3.
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• The CPS Clinical Guideline also provides for the medical isolation of a patient with suspected COVID-19 infection be maintained until all the following criteria have been met:
a. For individuals who will be tested to determine if they are still contagious: the individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND the individual’s other symptoms have improved (e.g., cough, shortness of breath) AND the individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart.
b. For individuals who will NOT be tested to determine if they are still contagious: the individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND the individual’s other symptoms have improved (e.g., cough, shortness of breath) AND at least 7 days have passed since the first symptoms appeared.
c. For individuals who had a confirmed positive COVID-19 test but never showed symptoms: At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND the individual has had no subsequent illness.
Id. ¶ 11.
• The CPS Clinical Guideline provides for restriction of patients from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. Id. ¶ 12.
In addition to the CPS Clinical Guideline, CPS has taken the following steps:
• New Detainee Screening. Upon receiving a new detainee/inmate, medical staff screen the individuals for signs and symptoms of infection. This includes event travel history, temperature checks, taking a recent medical history and observing the individual for any signs of sickness. If an individual appears symptomatic on admission a mask is applied immediately, the individual is placed in isolation and clinical care guidelines are followed (as outlined above) thereafter. Id. ¶ 18.
• Detainee Education and Monitoring. Nursing staff have also been instructed to use any detainee/inmate interaction as a time to educate the detainee/inmate regarding COVID-19, including that all inmates
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need to wash their hands frequently, avoid crowds and stay apart at least six feet whenever possible, and to report any shortness of breath or concerns of fever immediately to either nursing or security. Additionally, signs have been posted in all units in English, Spanish, Portuguese and Chinese, indicating that if a detainee/inmate feels sick, they should notify medical staff and have a mask applied immediately. Detainees and inmates are also being educated during medical encounters on the signs and symptoms of a COVID-19 infection. Id. ¶¶ 16-17.
• Monitoring of Vulnerable Detainees. CPS staff are monitoring and reviewing all detainees and inmates who are known to have chronic disease or other co-morbidities which would make them more susceptible to a COVID-19 infection. Id. ¶ 20.
• Staff Training and Supplies. COVID-19 health information has been posted in all units and visiting areas. Staff have access to CDC materials, including posting the link/url for the CDC website on all medical area computer equipment. A training website for CPS medical staff has been developed as well as a COVID-19 power point. Staff have access to masks, disinfectant/sanitizer and other personal protective equipment. Id. ¶ 15.
• Staff Precautions. CPS also is taking steps to ensure that staff do not inadvertently introduce COVID-19 into the facility by educating staff and screening them for raised temperatures or other signs of illness. Staff have been instructed not to work if they feel ill and to report any symptoms for follow up. Staff have also been educated regarding both their own protection as well as CDC guidelines for eliminating virus transmission. Id. ¶ 19.
3. USMS Works Closely With The Plymouth County Correctional Facility To Attend To The Medical Needs Of Pretrial Detainees In USMS Custody.
In addition to the above steps taken by the Department and CPS, USMS itself provides
monitoring and guidance to the medical staff at PCCF. Specifically, USMS employs U.S. Public
Health Service (“PHS”) personnel—including physicians, physician assistants, and nurses—to
oversee and manage its prisoner medical program. Ex. C. ¶ 7. The PHS staff work closely with
medical personnel at the IGA facilities, like PCCF, to attend to the medical needs of USMS
prisoners, like Petitioners. Id. ¶ 7.
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C. The Lack of Any COVID-19 Case Among Inmates And Detainees At The Plymouth County Correctional Facility. There is not currently, and has never been, a case of COVID-19 in the inmate and detainee
population at PCCF. Ex. A ¶ 7; Ex. B. ¶ 24; Ex. C ¶ 11. There has been one case of COVID-19 of a PCCF staff member. Ex. A ¶ 8; Ex. B. ¶ 25. That individual’s last day at PCCF was March 19, 2020. The individual did not have close contact with any inmates or detainees. Ex. A ¶ 8; Ex. B. ¶ 25. The staff members that had close contact with that individual were sent home and were not permitted to return to PCCF for at least 14 days. Ex. A ¶ 8; Ex. B. ¶ 25. To date, that is the only case of COVID-19 at PCCF. Ex. A ¶¶ 7-8; Ex. B. ¶¶ 24-25. D. Pending Criminal Cases Against Petitioners.
1. Anthony Baez. In November 2019, Baez was indicted for an array for serious drug crimes, including conspiracy to distribute large amounts of fentanyl. See Doc. # 1, United States v. Baez, No. 4:19cr-40049 (D. Mass.) (Hillman, J.) (charging conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine, 400 grams or more of fentanyl, 100 grams or more of heroin, and 28 grams or more of cocaine base; distribution of 40 grams or more of fentanyl and heroin, and aiding and abetting; distribution of 100 grams or more of heroin and 40 grams or more of fentanyl, and aiding and abetting; and distribution of 400 grams or more of fentanyl and 100 grams or more of heroin, and cocaine, and aiding and abetting) On April 6, 2020, Baez moved for release based on the conditions of his confinement at PCCF and the threat to health and safety posed by COVID-19. See Doc. # 93, Baez, No. 4:19-cr40049. On April 10, 2020, based on an individualized inquiry, Magistrate Judge Kelley denied his motion and entered an order of detention. See Doc. # 93, Baez, No. 4:19-cr-40049 (“The court is aware of the covid-19 pandemic and the problems it poses for the safety of those who are
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incarcerated. In addition, Mr. Baez’s four children are in the care of his mother who is reportedly overwhelmed and could use his help caring for the children. The court is very sympathetic to these concerns but is also obligated to take into consideration the risks posed to public safety of those who make a living by selling illegal drugs that endanger others’ lives, and who seem not to be deterred by being arrested and punished for it.”).
2. Jonathan Bermudez. In April 2019, Bermudez, who has a prior conviction for assaulting a pregnant woman, also was indicted for serious drug crimes, including conspiracy to distribute large amounts of fentanyl. See Doc. # 1, United States v. Bermudez, No. 1:19-cr-10180 (D. Mass.) (Sorokin, J.) (charging conspiracy to distribute and possess with intent to distribute 400 grams or more of fentanyl and distribution of 40 grams or more of fentanyl). On April 2, 2020, Bermudez moved, on an emergency basis, for release based on the conditions of his confinement at PCCF and the threat to health and safety posed by COVID-19. See Doc. # 109, Bermudez, No. 1:19-cr-10180. On April 8, 2020, after the government responded, this Court referred the motion to Magistrate Judge Dein. See Doc. # 113, Bermudez, No. 1:19-cr10180. As of April 21, 2020, at the time of filing, Bermudez’s emergency motion remains pending. 3. Jermaine Gonsalves. In October 2018, Gonsalves, a career offender with multiple state and federal convictions, also was indicted for, among other things, conspiracy to distribute large amounts of fentanyl. See Doc. # 1, United States v. Gonsalves, No. 1:18-cr-10468 (D. Mass.) (Gorton, J.) (charging conspiracy to distribute and possess with intent to distribute 400 grams or more of fentanyl and 100 or more grams of heroin). On March 31, 2020, Gonsalves moved for release based on the conditions of his confinement at PCCF and the threat to health and safety posed by COVID-19. See Doc. # 381,
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Gonsalves, No. 1:18-cr-10468. On April 16, 2020, following a hearing and based on an individualized inquiry, Magistrate Judge Bowler denied his motion and reaffirmed her earlier finding that detention was warranted, but did so “without prejudice to renew if there is a change in circumstances.” See Doc. # 396, Gonsalves, No. 1:18-cr-10468 (“As to the defendants new arguments for release based on the Covid-19 outbreak, this court finds the defendant did not present any special or extraordinary circumstances. Defendant’s motion raises systematic and not particularized concerns regarding the institution where he is being held. He does not set forth any specific medical conditions that would make him more vulnerable or more at risk than other detainees at the institution. Therefore, this court finds that release is not warranted at this time. The motion is DENIED without prejudice to renew if there is a change in circumstances.”).
4. Dedrick Lindsey. In March 2019, Lindsey, who has a long criminal history with multiple state convictions for serious drug and gun crimes (many of which serve as Armed Career Criminal predicates that subject him to a fifteen-year mandatory minimum sentence), was indicted for being a felon in possession. See Doc. # 1, United States v. Lindsey, No. 1:19-cr-10091 (D. Mass.) (Wolf, J.). Unlike the other Petitioners, on April 3, 2019, Lindsey waived his detention hearing and requested a voluntary order of detention. See Doc. # 13, Lindsey, No. 1:19-cr-10091. On April 4, 2019, based on Lindsey’s waiver and request, Magistrate Judge Dein entered an order of detention. See Doc. # 15, Lindsey, No. 1:19-cr-10091. Also unlike the other Petitioners, Lindsey has not sought his release on the conditions of his confinement at PCCF or the threat to health and safety posed by COVID-19. See generally Lindsey, No. 1:19-cr-10091. E. Petitioners’ Detention at Plymouth County Correctional Facility. Each of the Petitioners is detained at PCCF. “Baez is assigned to Unit DS1, a small housing unit with a capacity of 62. As of April 20, the population of the unit was 34. The inmate roster
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reflects that Baez was assigned to a five-man cell with two other inmates on that date.” Ex. A ¶ 9.
“Bermudez is assigned to Unit H3, a large unit with a capacity of 139. As of April 20, the
population of the unit was 74. The inmate roster reflects that Bermudez was in a cell by himself
on that date.” Id. ¶ 10. “Gonsalves is assigned to Unit H1, a large unit with a capacity of 139. As
of April 20, the population of the unit was 68. The inmate roster reflects that Gonsalves was in a
cell by himself on that date.” Id. ¶ 11. “Lindsey is assigned to Unit BS1, a dormitory unit with a
capacity of 60. As of April 20, the population of the unit was 10.” Id. ¶ 12.
When Petitioners are in the common areas of their respective units, such as during
recreation and meals, the Department takes a variety of precautions. For example:
• Social Distancing in Common Areas. To permit and encourage social distancing, the security staff spread out the day room chairs in the units. The Department conducts split recreation in the standard large and small units, with each side (in the large units) or each tier (in the small units) of the unit entering the day room at different times. The split recreation periods provide much more space in the day room and offer significant opportunity for social distancing. The Department similarly provides meals for each portion of the large and small units at different times. This provides detainees multiple seating options which provide significant opportunity for social distancing. The inmates in the dormitory units continue to recreate and eat together. Id. ¶ 10.
• Sanitation. Multiple times each day, unit workers sanitize the units. Workers clean all tables, phones, day room chairs, showers, and cell door handles with 100 product multi-use disinfectant 256. Laundry workers clean all mop heads and cleaning rags every morning. Maintenance officers regularly use Virex spray to disinfect showers, day room chairs, tables, phones, all door handles, and railings in the morning before recreation periods begin. A cleaning crew cleans all visit rooms and sally ports with Virex fogging spray. Id. ¶ 11.
• Sanitary Supplies. The Department provides the detainees antibacterial soap weekly and as needed and provides the detainees the cleaning supplies they need. The Department provides toilet paper weekly and as needed. The detainees have access to the 100 product disinfectant to clean their cells. Unit workers have access to nitrex gloves for their assignments, and all inmates have access
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to plastic gloves at the officer panel for cleaning. The Department runs a laundry unit to keep clothing clean. Id.
F. The Petition In This Case.
In the Petition, Petitioners, on behalf of themselves and a putative class of all federal
pretrial criminal detainee at PCCF (which they estimate to be about 150 detainees), challenge the
conditions of their confinement at PCCF as inadequate to address the threat to health and safety
posed by COVID-19. Doc. # 1 ¶ 1. According to Petitioners, those conditions violate the Fifth
Amendment, id. ¶¶ 150-62 (First Cause of Action), and the Eighth Amendment, id. ¶¶ 163-78
(Second Cause of Action), and require the following relief:
• an injunction that would “[r]equire Respondents to immediately take all actions to reduce the federal detainee population at PCCF by releasing a sufficient number of federal detainees from the facility in order to ensure the health and safety of all members of the Class,” id. at 39 (section B.1 of the prayer for relief);
• the appointment of “an expert under Federal Rule of Evidence 706 to make recommendations to the Court regarding how many and which class members to order released,” id. at 39 (section B.2 of the prayer for relief); and
• judicial monitoring of PCCF to ensure that the conditions of Petitioners’ confinement comply with the recommendations of their experts, id. at 40 (section B.4-7 of the prayer for relief).
This timely motion followed.
STANDARD OF REVIEW
Because federal courts are considered courts of limited jurisdiction, “federal jurisdiction is
never presumed.” Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998). Rather, “‘the party
invoking the jurisdiction of a federal court carries the burden of proving its existence.’” Murphy
v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (quoting Taber Partners, I v. Merit Builders,
Inc., 987 F.2d 57, 60 (1st Cir. 1993)). “Once a defendant challenges the jurisdictional basis for a
claim under Rule 12(b)(1), the plaintiff bears the burden of proving jurisdiction.” Excel Home 13

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Care, Inc. v. U.S. Dep’t of Health & Human Servs., 316 B.R. 565, 567 (D. Mass. 2004). “In ruling on a motion to dismiss for lack of jurisdiction, ‘the district court must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of plaintiff.’” Id. at 568 (quoting Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996)). “That is not to say that this leniency eliminates the plaintiff’s burden of proving an appropriate jurisdictional basis. Indeed, a plaintiff cannot assert a proper jurisdictional basis ‘merely on unsupported conclusions or interpretations of law.’” Id. (quoting Murphy, 45 F.3d at 522).
Just as a plaintiff bears the burden of establishing subject matter jurisdiction, so too “the plaintiff bears the burden of plausibly alleging a viable cause of action” under Rule 8(a). Hochendoner v. Genzyme Corp., 823 F.3d 724, 730 (1st Cir. 2016). The “‘tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’” Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Iqbal, 556 U.S. at 678). Rather, “‘only a complaint that states a plausible claim for relief survives a motion to dismiss’” under Rule 12(b)(6). Id. (quoting Iqbal, 556 U.S. at 679).
ARGUMENT I. THE PETITION MUST BE DENIED FOR LACK OF
SUBJECT MATTER JURISDICTION BECAUSE THE PRISONER LITIGATION REFORM ACT BARS THE RELIEF PETITIONERS SEEK. The government has both a significant interest in “safeguard[ing] the health and safety of those remanded [into] custody,” and an “obligation to maintain public safety and to protect victims and witnesses from threats and retaliation[.]” See Attorney General Barr Mem., dated Apr. 6, 2020, attached as Exhibit D hereto. In determining whether to seek detention in the first
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instance, or to oppose a motion for release, the government employs an individual, case-by-base assessment that takes into account both the defendant’s risk from COVID-19 and the risk that the defendant’s release would pose to the public. These individualized, case-specific determinations are the only appropriate legal avenue through which Petitioners may seek release due to the threat to health and safety posed by COVID-19.
A. The Bail Reform Act And The Attorney General’s April 6 Memorandum. The Bail Reform Act (“BRA”) expressly allows district courts to consider an individual defendant’s health when deciding whether to detain him or her pending trial. A person charged with an offense may be released, released on conditions, or detained pending trial. 18 U.S.C. § 3142(a). In determining “whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community,” the court “shall . . . take into account the available information concerning,” inter alia, “the history and characteristics of the person, including . . . the person’s . . . physical and mental condition[.]” § 3142(g)(3). District courts have statutory authority to review a magistrate judge’s detention order, § 3145(b), and “inherent authority to reconsider detention decisions . . . where ‘changed circumstances’ support release.” United States v. Smith, 200 F. Supp. 3d 192, 194 (D.D.C. 2016). The Attorney General recently issued guidance to federal prosecutors concerning “Litigating Pre-Trial Detention Issues During the COVID-19 Pandemic.” Ex. D. The Attorney General’s April 6 Memorandum makes clear that “the current COVID-19 pandemic requires that [prosecutors] ensure [they] are giving appropriate weight to the potential risks facing certain individual from being remanded to . . . custody.” Id. Thus, although prosecutors’ “paramount obligation” is to “[p]rotect[ ] the public,” they must also “consider the medical risks associated with individuals being remanded into . . . custody during the COVID-19 pandemic.” Id. at 1-2. Prosecutors “should consider not seeking detention to the same degree [they] would under normal
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circumstances,” and must weigh “the risk of flight and seriousness of the offense . . .against the defendant’s vulnerability to COVID-19.” Id. at 2. Likewise, “these same considerations should govern [prosecutors’] litigation of motions filed by detained defendants seeking release in light of the pandemic.” Id. Such a defendant’s “risk from COVID-19 should be a significant factor in [each prosecutor’s] analysis[.]” Id.
B. The Prisoner Litigation Reform Act And Prisoner Release Orders Generally. The Prison Litigation Reform Act (“PLRA”) places strict limits on a district court’s ability to order the release of inmates “in any civil action with respect to prison conditions,” and expressly precludes a single district judge from doing so. 18 U.S.C. § 3626(a)(3)(B). That prohibition applies to “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison[.]” § 3626(g)(2). In non-prohibited suits, the court “may enter a temporary restraining order or an order for preliminary injunctive relief,” but such injunctive relief “must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” § 3626(a)(2). Under the PLRA, a “prisoner release order”—which “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,” § 3626(g)(4)—may “be entered only by a three-judge court,” § 3626(a)(3)(B), and then only if certain conditions have been met. Among other requirements, “no court shall enter a prisoner release order unless—(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and (ii) the defendant has had a reasonable amount
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of time to comply with the previous court orders.” § 3626(a)(3)(A). Congress enacted the PLRA “to oust the federal judiciary from day-to-day prison
management.” Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997); see also Benjamin v. Jacobson, 172 F.3d 144, 182 (2d Cir. 1999) (en banc) (Calabresi, J., concurring) (“The en banc majority argues at length that Congress meant to get the federal courts out of the business of running jails, and it cites any number of congressional statements to that effect. I agree.”). “Congress intended the PLRA to revive the hands-off doctrine,” which was “a rule of judicial quiescence derived from federalism and separation of powers concerns.” Gilmore v. California, 220 F.3d 987, 991, 997 (9th Cir. 2000). Section 3626 thus “restrict[s] the equity jurisdiction of federal courts,” Gilmore, 220 F.3d at 999, and, “[b]y its terms . . . restricts the circumstances in which a court may enter an order ‘that has the purpose or effect of reducing or limiting the prison population,’” Brown v. Plata, 563 U.S. 493, 511 (2011). The PLRA’s “requirements ensure that the ‘last remedy’ of a population limit is not imposed ‘as a first step.’” Id. at 514 (quoting Inmates of Occoquan v. Barry, 844 F.2d 828, 843 (D.C. Cir. 1988)). “The release of prisoners in large numbers . . . is a matter of undoubted, grave concern.” Id. at 501.
C. Petitioners Must Seek Relief Under The Bail Report Act In Their Respective Criminal Cases Because The Prisoner Litigation Reform Act Precludes This Court From Reducing Or Limiting The Prison Population In This Case.
The PLRA precludes this Court from ordering the primary relief Petitioners seek here. “The authority to release 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.” Plata, 563 U.S. at 500 (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[.]”). Moreover, 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
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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.” § 3626(a)(3)(A). And, even a three-judge court may order prisoners released to remedy unconstitutional prison conditions “only if the court finds by clear and convincing evidence” that “crowding in the primary cause of the violation” and “no other relief will remedy [it.]” § 3626(a)(3)(E)(i)-(ii).
Here, there can be no legitimate dispute that Petitioners’ lawsuit is a “civil action with respect to prison conditions” governed by the PLRA. The PLRA defines “civil action with respect to prison conditions” broadly to mean “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but [that term] does not include habeas corpus proceedings challenging the fact or duration of confinement in prison[.]” § 3626(g)(2). This case neatly falls within that definition. Id. Although Petitioners invoke habeas corpus and 28 U.S.C. § 2241, Doc. # 1 ¶¶ 17-18, this is not a “habeas corpus proceeding[] challenging the fact or duration of confinement in prison.” § 3626(g)(2) (emphasis supplied). Petitioners make no claims regarding the fact or duration of their detention.8 Rather, Petitioners challenge the conditions of their confinement at PCCF as inadequate to address the threat to health and safety posed by COVID19. Doc. # 1 ¶ 1. This case is thus a “civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of
8 See generally Preiser v. Rodriguez, 411 U.S. 475, 507 (1973) (Brennan, J., dissenting) (noting that “an attack on the validity of conviction or sentence is plainly directed at the fact or duration of confinement,” and that a challenge to the deprivation of good-time credits also “falls within” that definition); Moran v. Sondalle, 218 F.3d 647, 650-51 (7th Cir. 2000) (per curiam) (“State prisoners who want to challenge their convictions, their sentences, or administrative orders revoking good-time credits or equivalent sentence-shortening devices . . . contest the fact or duration of custody.”).
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persons confined in prison” governed by the PLRA. § 3626(g)(2). The PLRA strictly limits the relief this Court may grant. Under the PLRA, a single district
court judge may not enter “a prisoner release order,” § 3626(a)(3)(B), which is broadly defined to “include[ ] 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[.]” § 3626(g)(4). Therefore, to the extent Petitioners seek an injunction that would require Respondent “to reduce the federal detainee population at PCCF by releasing a sufficient number of federal detainees from the facility in order to ensure the health and safety of all members of the Class,” Doc. # 1 at 39, or for the appointment of “an expert under Federal Rule of Evidence 706 to make recommendations to the Court regarding how many and which class members to order released,” id., the PLRA precludes that relief.
As another district court recently recognized, although “the issue of inmate health and safety is deserving of the highest degree of attention,” an “order imposing a court-ordered and court-managed ‘process’ for determining who should be released” from a state prison in response to the COVID-19 pandemic falls “squarely within Section 3626(a)(3)—which forbids this Court from granting it.” Money v. Pritzker, No. 20-cv-2093, 2020 WL 1820660, at *1, 13 (N.D. Ill. April 10, 2020). “[T]he release of inmates requires a process that gives close attention to detail, for the safety of each inmate, his or her family, and the community at large demands a sensible and individualized release plan—especially during a pandemic.” Id. at *1. Individual motions for release under the BRA allows judges to undertake that “inherently inmate-specific inquiry,” id., and are the proper legal vehicle for Petitioners to attempt to obtain release due to health risks posed by the COVID-19 pandemic. See also Doc. # 3266, Plata v. Newsom, No. 01-cv-01351
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(D.N. Cal. Apr. 17, 2020) (same).9 II. THE PETITION MUST BE DENIED FOR LACK OF SUBJECT MATTER
JURISDICTION BECAUSE PETITIONERS CANNOT ESTABLISH STANDING. Even without the above prohibition, the Petition must be denied because Petitioners lack standing. It is fundamental that the Constitution “confers limited authority on each branch of the Federal Government.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1546-47 (2016). As relevant here, the judicial power of the United States is limited to “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1. “The doctrine of standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Standing thus “serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). The standing inquiry also focuses on whether a particular plaintiff is the proper party to challenge government conduct. Raines v. Byrd, 521 U.S. 811, 818 (1997). As the party invoking federal jurisdiction, a plaintiff must establish the three elements that constitute the “irreducible constitutional minimum” of standing: that (i) it suffered an injury in fact (ii) fairly traceable to the challenged government conduct (iii) that is likely to be redressed by a favorable judicial decision. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998). Moreover, a plaintiff must “demonstrate standing for each claim [it] seeks to press and for each
9 Petitioners’ cited cases (Doc. # 1 ¶ 59) are all inapt. Individuals who are being detained pending deportation are not “prisoners” as defined by the PLRA. See 18 U.S.C. § 3626(g)(3) (“[T]he term ‘prisoner’ means any person subject to incarceration, detention, or admission to any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program[.]”). And, examples of other federal pretrial criminal detainees released under the BRA proves Respondent’s point. As discussed above, filing individual motions under the BRA is the only appropriate way for such detainees seek release due to the health risk posed by COVID-19.
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form of relief that is sought.” Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (citation omitted), remanded to Laroe Estates, Inc. v. Town of Chester, 693 F. App’x 69 (2d Cir. 2017). The standing inquiry is “especially rigorous” where, as here, a plaintiff asks a federal court “to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines, 521 U.S. at 819-20.
In this case, Petitioners have established neither injury in fact nor redressability. A. Petitioners Lack Injury In Fact Based On The Site-Specific
Circumstances At The Plymouth County Correctional Facility. To establish injury in fact, a plaintiff must first show that he or she suffered “‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc., 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). Injury in fact is a “constitutional requirement” and is the “[f ]irst and foremost” of standing’s three elements. Id. at 1547-48 (quoting Steel Co., 523 U. S. 83, 103 (1998)). To be “particularized” the injury “must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n.1. “Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be ‘concrete.’” Spokeo, Inc, 136 S. Ct. at 1548. A “concrete” injury must be “‘de facto’; that is, it must actually exist[,]” that is, it must be “real,” and not “abstract.” Id. While “the risk of real harm” may, in some circumstances, be sufficiently concrete, “imminence . . . cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes -- that the injury is ‘certainly impending.’” Lujan, 504 U.S. at 568. Petitioners’ alleged harm—that their detention increases the risk of harm from COVID19—is speculative based on the site-specific circumstances at PCCF. E.g., Spokeo, Inc., 136 S. Ct. at 1548 (injury in fact cannot be “conjectural or hypothetical”); Lujan, 504 U.S. at 568 (injury in fact cannot be “speculative”). There is not currently, and has never been, a case of COVID-19
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in the inmate and detainee population at PCCF. Ex. A ¶ 7; Ex. B. ¶ 24. Although there has been one case of COVID-19 of a PCCF staff member, it has been 33 days since that individual was last at PCCF. Ex. A ¶ 7; Ex. B. ¶ 24. To put that into perspective, 33 days is more than six times the median incubation period (about five days) and more than double the CDC’s recommended quarantine period (14 days). Indeed, the fact that a staff member tested positive for COVID-19 in mid-March, and yet there are zero cases of COVID-19 in the inmate and detention population as of April 20, indicates that PCCF’s efforts are working and that injury in fact is speculative.10
Similarly, Petitioners cannot meet the imminence requirement based on the specific facts of this particular case. E.g., Spokeo, Inc., 136 S. Ct. at 1548 (injury in fact must be “actual or imminent”); Lujan, 504 U.S. at 568 (injury in fact must be “certainly impending”). None of the Petitioners in this care is held in crowded units. To the contrary, the units housing Baez, Bermudez, and Gonsalves are half empty, Ex. A ¶¶ 9-11, and Lindsey’s unit is at less than 20 percent capacity, id. ¶ 12. And, both Bermudez and Gonsalves have their own cells. Id. ¶¶ 10-11. When Petitioners are in common areas, such as during recreation and meals, PCCF takes a variety of precautions that reasonably provide for adequate social distancing. Id. ¶¶ 10-11. Moreover, Petitioners’ own healthcare provider attests, based on a review of their medical records and observations during detention, that none them has a medical condition that presents “a higher risk for COVID-19.” See Decl. of Marcia Norat, attached as Exhibit E hereto.11 These facts stands in sharp contrast to Petitioners’ conjecture, and undermines their claim that the efforts to prevent
10 This is consistent with the medical opinion of CAPT Steven S. Wolf, MD, a PHS physician and the Medical Director for the USMS Prisoner Operations Division. Ex. C. ¶ 10. After reviewing Respondent’s declarations submitted in this case, Dr. Wolf opines that “PCCF is providing appropriate precautions to protect their prisoner population during the current COVID19 pandemic.” Id.
11 Ms. Norat is PCCF’s Health Services Administrator. Ex. E. Because her declaration contains medical information about Petitioners, it has been submitted under seal.
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exposure to COVID-19 at PCCF are insufficient to the point where they require the extraordinary remedies they seek, including judicial monitoring and release of detainees.12
B. Petitioner’s Alleged Injury—A Heightened Risk For Serious Illness Or Death From COVID-19—Is Not Redressable By Release.
Separately, Petitioners lack standing because their alleged injury—that they are subject to a heightened risk of death from COVID-19—will not be redressed by ordering their release. “Redressability requires an analysis of whether the court has the power to right or to prevent the claimed injury.” Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982) (Kennedy, J.). For purposes of standing, a plaintiff’s injury is redressable where there is “a ‘substantial likelihood’ that the requested relief will remedy the alleged injury.” Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (citation omitted). Petitioners’ desired relief— release from detention—will not ameliorate their claimed heightened risk of injury or death resulting from COVID-19, nor can release prevent them from contracting COVID-19.
Petitioners offer no proof—nor is Respondent aware of any—that their release from PCCF, a facility without a single case of COVID-19 in the inmate and detainee population, into Massachusetts, which has declared a state of emergency based on the COVID-19 crisis, or anywhere else, will reduce their risk of injury or death. See generally Doc. # 1. Although infection rates in Plymouth County are relatively low (less than half of one percent of the population), that rate is higher than zero—the current infection rate among inmates and detainees at PCCF.
12 These unique facts—(1) the presence of a much earlier staff case that did not result in any cases among the inmate or detainee population, (2) units at half capacity or even less, and (3) two of the Petitioners with their own cells—materially distinguishes this case from other cases seeking similar relief. For example, those circumstances did not exist in Savino v. Souza, No. 2010617, 2020 WL 1703844, (D. Mass. Apr. 8, 2020), where Judge Young found that the petitioners had standing. Id. at *4.
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Moreover, it cannot be overlooked that PCCF provides medical care at no cost to detainees, including Petitioners. By reason of their detention, Petitioners have greater access to robust medical care than many in the general public. Ordering their release from PCCF would leave Petitioners without their present access to health care and could put them at greater risk of serious complications in the event that they contracts COVID-19. As Dr. Baker attests generally in his declaration:
While it is clear that a prison setting poses particular challenges from an infectious disease stand-point, the risk of infection is tempered by the degree of control we have over access to the facility. We are screening incoming detainees/inmates carefully and taking steps to isolate them as necessary. We have a highly educated and trained staff that is acutely aware of the risks posed by the pandemic. We are also providing a level of medical care to the detainees/inmates that they are unlikely to receive outside of PCCF. Ex. B ¶ 21. Accordingly, for both of the above reasons—(1) that Petitioners lack injury in fact, and (2) that the alleged injury is not redressable by release—the Petition must be denied for lack of standing. E.g., Spokeo, Inc., 136 S. Ct. at 1548; Steel, 523 U.S. at 102-03; Lujan, 504 U.S. at 560. III. THE PETITION MUST BE DENIED FOR FAILURE TO STATE A CLAIM BECAUSE PETITIONERS FAILED TO EXHAUST THEIR ADMINISTRATIVE REMEDIES, AS THE PRISON LITIGATION REFORM ACT REQUIRES. Independently, the Petition must be denied for failure to state a claim because Petitioners did not, and did not even attempt to, exhaust their administrative remedies prior to filing this lawsuit. See Johnson v. California, 543 U.S. 499, 528 n.1 (2005) (assuming that PRLA exhaustion is not jurisdictional); Casanova v. Dubois, 289 F.3d 142, 147 (1st Cir. 2002) (“Although not jurisdictional, the exhaustion requirement is nonetheless mandatory” under the PLRA).
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A. Petitioners Did Not Even Attempt To Exhaust Their Administrative Remedies. The PLRA provides that “[n]o action shall be brought with respect to prison conditions under . . . any . . . 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’s mandatory exhaustion requirement applies to pretrial criminal detainees like Petitioners, id. § 1997e(h); Acosta v. U.S. Marshals Serv., 445 F.3d 509, 512 (1st Cir. 2006), and, indeed, “all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532 (2002). See also Cutter v. Wilkinson, 544 U.S. 709, n. 12 (2005) (similar); Medina-Claudio v. Rodriquez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002) (same). Accord Jackson v. District of Columbia, 254 F.3d 262, 266 (D.C. Cir. 2001) (same); Walker v. O’Brien, 216 F.3d 626, 636-37 (7th Cir. 2000) (same). In this case, the Department has a grievance procedure at PCCF that provides several ways to address disputes about the conditions of confinement. Ex. A. ¶ 16. As relevant here, the grievance procedure contains a provision for an “Emergency Grievance.” Id. That provision provides that “[i]f a grievance is of an emergency nature, the Responsible Personnel will immediately forward to the [Institutional Grievance Coordinator] the grievance and any accompanying documentation.” Id. In addition, “[t]he [Institutional Grievance Coordinator] will reply to the inmate as soon as possible.” Id. (emphasis supplied). Yet not one of the Petitioners in this case filed a grievance—emergency or otherwise—regarding their concerns that the conditions at PCCF were inadequate to address the threat to health and safety posed by COVID19. See Decl. of Capt. Mark Holmes, attached as Exhibit F hereto, ¶ 4.13
13 Courts recognize that “in deciding [a] motion to dismiss for failure to exhaust, [they] may consider matters filed outside of the pleadings without converting such motion to one for summary judgment.” Dzanku v. Brennan, 270 F. Supp. 3d 376, 378 n.2 (D. Mass. 2017).
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Because Petitioners failed to exhaust administrative remedies, the Court should deny the Petition unless Plaintiff has shown that his case fits within an exception to the exhaustion requirement. For the reasons discussed below, Petitioners have not done so (nor can they).
B. The Narrow Exceptions for Failure to Exhaust Do Not Apply Here. Failure to exhaust may be excused only (1) where the remedy “operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) where the administrative scheme is “so opaque that it becomes, practically speaking, incapable of use;” or (3) where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016). None of those three narrow exceptions applies here. The first exception—that the process for relief was “a simple dead end”—is patently inapplicable in this case. As described above, PCCF has a robust set of grievance procedures. Ex. A ¶ 16. Because Petitioners took no action required under those procedures, it cannot be said that they were met “with officers unable or consistently unwilling to provide any relief.” Ross, 136 S. Ct. at 1859-60. The second exception—that the administrative process was “so opaque” as to become “incapable of use”—is inapplicable based on the procedures themselves, which are straightforward, especially for an “emergency grievance.” Ex. A ¶ 16. The third and final exception—that administrators inappropriately “thwart[ed]” use of the process—is inapplicable as well. Nothing in the Petition suggests that Petitioners’ pursuit of administrative remedies was hindered “through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1859-60.
* * * To be sure, COVID-19 presents unusual circumstances, in which decisions regarding prisoner grievances should be made expeditiously (as provided in PCCF’s grievance procedures). But permitting prisoners to ignore the PLRA’s mandatory exhaustion requirement, even in these
26

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unusual circumstances, would frustrate Congress’s objective in the PLRA to “eliminate unwarranted federal-court interference with the administration of prisons,” and “reduce the quantity and improve the quality of prisoner suits.” Woodford v. Ngo, 548 U.S.81, 93 (2006) (quoting Porter, 534 U.S. at 524). More problematically, permitting prisoners to ignore the PLRA’s mandatory exhaustion requirement would deprive prisons of “a fair opportunity to correct their own errors,” id. at 93, as Petitioners have done here by filing this lawsuit last Friday instead of submitting emergency grievances weeks ago. Because Petitioners failed to exhaust their administrative remedies as required by the PRLA, and because none of the exceptions to the exhaustion requirement applies in this case, the Petition should be denied. E.g., Johnson, 543 U.S. at 528 n.1; Casanova, 289 F.3d at 147 (1st Cir. 2002). IV. THE PETITION MUST BE DENIED TO THE EXTENT IT SEEKS AN
INJUNCTION REQUIRING RESPONDENT TO RELEASE DETAINEES SUBJECT TO AN ORDER OF DETENTION FROM A FEDERAL COURT. Even if Petitioners could overcome all three of the above barriers to this lawsuit (and they cannot), Respondent lacks the authority to provide the primary relief they seek in this lawsuit: their release from detention. Doc. # 1 at 39 (section B.1-2 of the prayer for relief). Although Respondent is the immediate custodian for Petitioners, they are not subject to detention by any authority of Respondent. Rather, Petitioners are subject to detention by order of the federal judges assigned in each of their pending criminal cases. See 18 U.S.C. § 3142. Petitioners cite no authority for the extraordinary proposition that Respondent may reduce its detainee population when those detainees are subject to valid, case-specific orders of detention from other federal judges in this district (or have requested detention, like Lindsey, resulting in an order of detention). See Doc. # 1 at 39 (section B.1 of the prayer for relief). Nor do Petitioners cite any authority for the equally extraordinary proposition that a court-appointed expert may usurp that judicial function
27

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in the guise of “recommendations to the Court regarding how many and which class members to order released.” Id. at 39 (section B.2 of the prayer for relief).
As discussed above, the bail process is the only appropriate legal avenue through which Petitioners may seek release due to the threat to health and safety posed by COVID-19. Bail applications, which must be raised before the judge who is assigned to the detainee’s criminal case, may be made at any time. In addition to the standard motions for release by pretrial defendants, 18 U.S.C. § 3142(b), or for post-conviction release, 18 U.S.C. § 3143, or bail pending appeal, 18 U.S.C. § 3143(b)(1), a defendant may seek release under 18 U.S.C. § 3142(i), which provides that a “judicial officer may, by subsequent order, permit the temporary release of [a] person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person’s defense or for another compelling reason.” Certain extreme medical circumstances may present “compelling reasons” that could warrant a highly circumscribed release. Indeed, various applications of this type have already been made in this district. E.g., Doc. # 568, United States v. Nia-Bush Moore, No. 18-CR-30001 (D. Mass.) (Young, J.) (denying pretrial detainee’s motion for release due to COVID-19 because her particular medical conditions were likely more safely managed by prison medical staff than in community given her history of noncompliance).
Because Petitioners may seek release at any time in their criminal cases, Respondent requests that this Court deny the Petition to the extent it seeks release here. Having Petitioners seek release (or seek release again) in their pending criminal cases would remove concerns that arise in parallel proceedings seeking the same relief, namely, judicial economy and the potential for confusion and conflicting orders. See, e.g., Gon v. Gonzales, 534 F. Supp. 2d 118, 120 (D.D.C. 2008) (“In Gon’s criminal case, Magistrate Judge Kay ordered Gon to be detained pre-trial under
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the federal bail statute. The court docket in Gon’s case reflects that he is challenging the detention order before the assigned district judge. That is the appropriate path for Gon to follow. Filing this petition, by contrast, potentially abuses the writ of habeas corpus, unduly duplicates judicial efforts, and circumvents traditional remedies afforded to safeguard Gon’s liberty interests.”).
CONCLUSION For all of the foregoing reasons, Respondent respectfully requests that the Court deny the Petition for lack of subject matter jurisdiction and for failure to state a claim on which relief can be granted pursuant to Rule 12(b)(1) and Rules 12(b)(6) of the Federal Rules of Civil Procedure.
Respectfully submitted,

ANTONE MONIZ Superintendent of the Plymouth County Correctional Facility

By his attorneys,

ANDREW E. LELLING, United States Attorney

Dated: April 21, 2020

By: /s/ Jason C. Weida Jason C. Weida Assistant U.S. Attorney United States Attorney’s Office 1 Courthouse Way, Suite 9200 Boston, Massachusetts 02210 (617) 748-3180 Jason.Weida@usdoj.gov

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EXHIBIT B

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EXHIBIT C

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DECLARATION OF ASSISTANT DIRECTOR
JOHN P. SHEEHAN
I, John P. Sheehan, Assistant Director, Prisoner Operations Division, United States Marshals Service make the following statements under oath and subject to the penalty of perjury:
1. I am employed by the U.S. Department of Justice, United States Marshals Service (USMS), and currently serve as an Assistant Director in the Prisoner Operations Division (POD). I have held this position since December 2019. I previously held the position of Deputy Assistant Director, POD, and have been employed with the USMS since June 1998.
2. I provide this declaration based on my personal knowledge, belief, reasonable inquiry, and information obtained from various records, systems, databases, other USMS employees, and information portals maintained and relied upon by USMS in the regular course of business.
3. As the USMS does not own or maintain detention facilities, the USMS must house federal prisoners in Federal Bureau of Prisons (BOP) Pretrial facilities, in State and local detention facilities pursuant to Intergovernmental Agreements (IGA), and contract jail facilities. The USMS has entered into an IGA to house federal prisoners at the Plymouth County Correctional Facility located at 26 Long Pond Rd, Plymouth, MA 02360. The IGA, is an at-will agreement that permits other federal agencies, such as Immigration & Customs Enforcement (ICE) and the BOP to house their prisoners at the facility, as needed, in exchange for a daily per diem rate.
4. An IGA is an agreement between the USMS and a state, county, or local government to provide secure custody, safekeeping, housing, subsistence, and care of USMS prisoners in accordance with all state and local laws, standards, regulations, policies, and court orders applicable to the operation of the facility. IGA facilities are required to house USMS prisoners in the manner that they house their own prisoners and in a manner that is consistent with Federal law, Federal Performance Based Detention Standards (FPBDS), and/or any other standards delineated in the agreement. While the USMS can provide assistance or advice regarding various standards, the USMS is without the authority to enforce IGA terms, and must rely on the jail’s cooperation. The jail is an independent contractor and the USMS cannot control the activities within the jail or how the jail provides services.
5. As with every State or local facility used by the USMS, the USMS annually conducts an on-site review of the facility to assess its compliance with the USMS detention standards. The annual facility review is conducted by a specifically-trained Deputy U.S. Marshal.
6. IGA facilities are required to provide USMS prisoners with the same level and range of care inside the facility as that is provided to State and local detainees. Specifically, IGA facilities are required to provide medical care for USMS prisoners that is in compliance
1

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with the provisions of USMS-Prisoner Health Care Guidance to Districts and the FPBDS.
7. The USMS employs U.S. Public Health Service (PHS) personnel -- to include physicians, physician assistants, and nurses -- to oversee and manage its prisoner medical program. The PHS staff work closely with medical personnel at the IGA facilities to attend to the medical needs of USMS prisoners. The IGA facilities are required to provide USMS prisoners with the same in-facility medical care that they provide their own prisoners. With the exception of medical care, all outside medical care must be approved by USMS PHS personnel pursuant to a request from jail medical staff.
8. In the cases of any infectious disease, IGA facilities are expected to work closely with State health departments and the Centers for Disease Control (CDC), as needed, to ensure that any infectious diseases are promptly identified and treated. All decisions concerning prisoner infectious disease treatment, including decisions to isolate and quarantine prisoners, are made at the facility level.
9. PHS staff have developed COVID-19 screening criteria for prisoners entering and departing detention facilities as well as guidelines for the safe transport of USMS prisoners to court and to medical appointments in line with CDC guidance.
10. CAPT Steven S. Wolf, MD, a PHS physician and Medical Director for the USMS Prisoner Operations Division, has reviewed declarations made by Joseph McDonald, Sheriff of Plymouth County, and Dr. Lawrence Baker, Medical Director for Plymouth County Correctional Facility (PCCF); it is his opinion that the PCCF is providing appropriate precautions to protect their prisoner population during the current COVID19 pandemic.
11. As of April 19, 2020, USMS has the following information with respect to federal prisoners housed in the Plymouth County Correctional Facility:
a. The USMS currently houses 170 prisoners at the facility.
b. There are zero confirmed cases of COVID-19 among the USMS prisoners housed at the facility.
I declare, under penalty of perjury under 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge.

Dated: April 21, 2020

___________________________________ John P. Sheehan Assistant Director Prisoner Operations Division United States Marshals Service
2

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EXHIBIT D

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®fffrt llf f~t 1\tt~rttf{! ~tntral
Jla:g4iu9tntt. it QI. 20,5$0
April 6, 2020

MEMORANDUM FOR ALL HEADS OF DEPARTMENT COMPONENTS AND ALL UNITED STATES ATTORNEYS

FROM: SUBJECT:

THE ATTORNEY G E N E R A L W ~
Litigating Pre-Trial Detention Issues During the COVID-19 Pandemic

The mission of the Department of Justice is to enforce our nation's laws and to ensure the safe and fair administration of justice. We have an obligation to maintain public safety and to protect victims and witnesses from threats and retaliation, and we must also safeguard the health and safety of those remanded to our custody. As always, controlling weight should be given to public safety, and under no circumstance should those who present a risk to any person or the community be released. But the current COVID-19 pandemic requires that we also ensure we are giving appropriate weight to the potential risks facing certain individuals from being remanded to federal custody. Each case must be evaluated on its own and, where appropriate, the risks the pandemic presents should be part of your analysis, as elaborated further below.
First, the Bail Reform Act ("BRA") remains the governing statute for pretrial detention issues and you are to continue enforcing that provision according to its terms. As you know, the BRA provides that a defendant must be detained pending trial where "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e)(l).
For certain crimes, it is presumed that "no condition or combination of conditions ofrelease will reasonably assure the appearance of the person as required and the safety of the community." 18 U.S.C. § 3142(e)(3). We should continue applying the BRA's factors and that presumption according to their terms. We simply cannot agree to anything that will put the public at risk. COVID-19 presents real risks, but so does allowing violent gang members and child predators to roam free. When you believe a defendant poses a risk to the safety of any person or the community at large, you should continue to seek remand as zealously today as you would have before the pandemic began, in accordance with the BRA's plain terms. Protecting the public from criminals is our paramount obligation.

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Memorandum from the Attorney General Subject: Litigating Pre-Trial Detention Issues During the COVID-19 Pandemic

Page 2

Second, in applying the familiar BRA analysis, which already includes some consideration

physical and mental condition id., you should now consider the medical risks

associated with individuals being remanded into federal custody during the COVID-19 pandemic.

Even with the extensive precautions we are currently taking, each time a new person is added to a

jail, it presents at least some risk to the personnel who operate that facility and to the people

incarcerated therein. It also presents risk to the individual being remanded into custody risk that

is particularly acute for individuals who are vulnerable to a serious infection under the Centers for

Disease Control and Prevention

Guidelines.

We have an obligation to minimize these risks to the extent possible while remaining

means you should consider not seeking detention to the same degree we would under normal circumstances specifically, for those defendants who have not committed serious crimes and who present little risk of flight (but no threat to the public) and who are clearly vulnerable to COVID-19 under CDC Guidelines. In this analysis, the risk of flight and seriousness of the offense
-19. Accordingly, we should continue to seek detention for defendants who are charged with serious crimes and who pose a substantial risk of flight, or for defendants who would normally warrant detention under the BRA and who are not vulnerable to COVID-19 under CDC Guidelines.

Third, these same considerations should govern your litigation of motions filed by detained defendants seeking release in light of the pandemic. In these cases, the Court has already made a finding based on the evidence presented that a defendant posed a risk of flight or a danger to the community and should therefore be remanded pending trial. In assessing whether it is appropriate to revisit that determination, you should also consider the potential risk that the defendant will spread COVID-19 in his or her community upon release risk from COVID-19 should be a significant factor in your analysis, you should also consider any risk that releasing the defendant would pose to the public. This consideration will depend on the facts and circumstances of each defendant and the facility where he or she is being held, and you should factor this consideration into your analysis as appropriate. Our duty to protect the public extends to protecting it from contagion spread by someone released from our custody.

* * *

The factors and considerations discussed herein should guide your analysis of pretrial detention issues while the pandemic is ongoing, but what position to take in each particular case is ultimately your decision. We must adapt to the current difficult circumstances, while also ensuring that we never deviate from our duty to keep the public safe from dangerous criminals. Please exercise your discretion appropriately.

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EXHIBIT E FILED UNDER SEAL

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EXHIBIT F

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 Case 1:20-cv-10753-LTS Document 45 Filed 04/27/20 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

____________________________________________

)

ANTHONY BAEZ, JONATHAN BERMUDEZ, )

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated;

)

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

ANTONE MONIZ, SUPERINTENDENT OF THE )

PLYMOUTH COUNTY CORRECTIONAL

)

FACILITY, in his official capacity;

)

)

)

Defendant-Respondent.

)

)

____________________________________________ )

Case No. 1:20-cv-10753

REPLY IN SUPPORT OF APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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I. The Requested Injunctive Relief is Appropriate Here Respondent’s Opposition to Petitioner’s Motion for a Temporary Restraining Order and
Preliminary Injunction (“Opp.) first1 argues that injunctive relief is inappropriate because Petitioners have an “adequate remedy at law” and that the proposed injunction offends principles of comity (Opp. 14-16). These arguments are meritless. The cases cited by Respondent involve instances where courts were asked to interfere with a separate sovereign’s authority. See, e.g., Coors Brewing Co. v. MendezTorres, 678 F.3d 15 (1st Cir. 2012). El Dia v. Hernandez Colon, 963 F.2d 488 (1st Cir. 1992); Porto Rico Tel. Co. v. Puerto Rico Comm. Auth., 189 F.2d 39 (1st Cir. 1951). Thus, those decisions were informed by the longstanding doctrines discouraging federal courts from interfering with “the exercise of sovereign power by a state or territory.” Id. at 41. No similar concerns are present here.
Nor is there merit to Respondent’s contention that Petitioners’ concerns can be fully addressed through individual proceedings arising under the Bail Reform Act. The injunction sought by Petitioners would impose a wide range of relief, including the appointment of a monitor to examine and make recommendations regarding the many-faceted concerns of the Petitioners and the Class regarding the serious threat of COVID-19 to all federal detainees at Plymouth. See, e.g., Banks v. Booth, Case. No. 20-CV-00849-CKK (D.D.C.) (Memorandum Opinion of April 19, 2020). Respondent cites no authority indicating that these same concerns can be addressed through individual bail proceedings. Indeed, as argued elsewhere, that type of divide-and-conquer approach is not only inefficient, it has proven to be wholly ineffective in addressing the concerns presented here. See DE 38 at 25-26 (discussing United States v. Moore- Bush, No-CR.-30001 (D. Mass.)).
For the same reason, there is nothing about the Petitioners’ proposed injunctive relief that would interfere directly with other federal proceedings. Petitioners are seeking to address and correct Plymouth’s response to the COVID-19 crisis—nothing in the proposed injunctive relief would interfere
1 To the extent that Respondent’s Opposition incorporates by reference the arguments advanced in its Separate Motion to Deny the Petition (see Opp. at 13-14), it should be rejected for the very same reasons as those set forth in Petitioners separately-filed Opposition to that Motion. See DE 38.
1

Case 1:20-cv-10753-LTS Document 45 Filed 04/27/20 Page 3 of 8 directly with the detention decisions of any other judges in this district. Indeed, a reduction of the detainee population at Plymouth would not necessarily mean that all detainees are “released from custody.” See DE 38 at 13-14 (discussing the concept of “enlargement”). Indeed, the inapposite cases cited by Respondent make clear that federal courts can and do work avoid the “comity problems” that Respondent wrongly implies could arise here. See, e.g., CitiFinancial Corp. v. Harrison, 453 F.3d 245, 252 (5th Cir. 2006) (noting that “the sum of the actions of the two judges was a cooperative response to issues arising out of the same dispute”). II. Petitioners Are Likely to Succeed on Their Fifth and Eighth Amendment Claims
Petitioners have established that they are likely to succeed on their Fifth and Eighth Amendment claims through five affidavits detailing conditions of confinement at Plymouth, three affidavits by medical professionals regarding Plymouth’s failures to adequately respond to the COVID-19 crisis, and factual allegations supporting those affidavits. See Pet. Exs. A-C, H-L. In response, Respondent offers only vague and conclusory assertions to assure the Court that he has instituted “strict protocols” and implemented “all prudent measures” to protect Petitioners and proposed class members from the fatal risk presented by COVID-19. Resp.’s Opp. 3; McDonald Decl. I ¶ 5. Indeed, Respondent concedes that he has not undertaken any broad-based effort to educate proposed class members about COVID19’s symptoms, risks, or modes of transmission. Without providing this basic education – both to proposed class members and staff – even the de minimis measures Respondent has allegedly undertaken will necessary be undermined.2 Respondent is conspicuously silent about any broad-based efforts to educate proposed class members about the importance of consistent social distancing – what it consists of, and how to do it effectively – or any effort undertaken to ensure or enforce proper social
2 Sheriff McDonald admits that his staff “has not made a general announcement [about COVID-19] to detainees.” McDonald Decl. II” ¶ 5, ECF No. 31-1. The posters placed in the housing unit are no substitute for directly educating detainees.
2

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distancing.3 Petitioners’ claims regarding the lack of hygiene measures undertaken at Plymouth are also
supported by Respondent’s responses. Respondent also obscures the precise cleaning and disinfecting measures Plymouth has instituted to combat COVID-19 and the frequency with which they are undertaken. Id. ¶ 14. Respondent asserts that he provides Plymouth’s federal detainees with all the cleaning supplies they need, but he offers no details to substantiate that claim, which flatly contradicts Petitioners’ experience.4 Next, Respondent rationalizes the dangerous conditions at Plymouth by reference to the offenses with which Petitioners were charged. See id. Respondent offers no authority for the bewildering suggestion that pretrial detainees may be subjected to heightened risk of contracting a fatal virus if they have been charged with a crime. Id.
Respondent has repeatedly acknowledged that he is “acutely aware” of the grave risk COVID19 poses to the federal detainees in his custody. Opp. 21; Dr. Baker Decl. ¶ 22, ECF No. 23-2. His failure to implement adequate measures to prevent the spread of COVID-19 in the facility constitutes deliberate indifference to this known risk of infection. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Respondent also mischaracterizes his decision to ignore CDC guidelines as “a difference of medical judgment.” Opp. 21 (quoting Scott v. Benson, 742 F.3d 335, 340 (8th Cir. 2014)). Corrections officials act with deliberate indifference when they make “decisions about medical care made recklessly with ‘actual knowledge of impending harm, easily preventable.’” Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir. 2011) (quoting Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir. 2007)). Respondent offers no expert reasoning supporting his knowing departure from the public
3 That unit managers are allegedly “reinforcing the importance of social distancing” provides no insight into the content or frequency of those alleged communications. McDonald Decl. II ¶ 5. Moreover, Petitioners’ affidavits, which detail proposed class members’ routine encounters with others both at meals and during recreation time, contravening social distancing precepts, demonstrates the ineffectiveness of these alleged communications. Pet. At Ex. I ¶¶ 4, 8; Ex. J ¶¶ 1112; Ex. H. ¶ 5; Ex. K ¶ 7; Ex. L ¶ 9. 4 Sheriff McDonald does not refute that Mr. Bermudez had to pack up his cellmate’s belongings without gloves. Petition Ex. I at ¶ 12. The affidavits submitted by Petitioners indicate that Plymouth’s cleanliness has not improved since the COVID-19 pandemic began. Id. ¶¶ 5, 9; Petition Ex. J ¶ 9; Petition Ex. H ¶ 9; Petition Ex. L ¶ 11.
3

Case 1:20-cv-10753-LTS Document 45 Filed 04/27/20 Page 5 of 8 health consensus as manifested in the CDC’s guidelines. Opp. 18-19; see also Banks, supra, slip op. at 22, 26 (ordering extensive remedial measures in response to DOC officials failure “to take comprehensive, timely, and proper steps to stem the spread of [COVID-19]”); see also Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *5 (N.D. Ill. Apr. 9, 2020).
Respondent asserts that Petitioners have not alleged a “substantial risk of serious harm” because “none of the Petitioners is held in a crowded unit.” Id. But in the same breath, he admits that two Petitioners are housed in shared cells. Opp. at 20 n.10. Incredibly, Respondent justifies this by comparing cellmates to roommates or family households. Id. His comparison ignores the fact that family members and/or roommates are typically able to stay six feet apart from each other while sharing the same home. But family members and roommates share a home; cellmates share an extremely small cell. Respondent’s decision to ignore CDC guidelines demonstrates a deliberate indifference for proposed class members’ wellbeing. III. Petitioners Will Suffer Irreparable Harm Absent Injunctive Relief
A plaintiff shows that he will suffer irreparable harm in the absence of injunctive relief when his “legal remedies are inadequate.” Ross–Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 18 (1st Cir.1996). Respondent’s claim that Petitioners and proposed class members could seek individualized bail hearings does not excuse Respondent placing federal detainee in serious risk of harm. Resp’s Opp’n at 14-15. Indeed, a high risk of infection with COVID-19 is a prototypical irreparable harm requiring a preliminary injunction, since the ravages of the disease cannot be compensated with monetary damages if an outbreak occurs before this Court can decide the merits. See Banks, supra, slip op. at 24 (inmates facing risk of contracting COVID-19 showed irreparable harm); Mays, 2020 WL 1812381, at *13 (plaintiffs showed risk of harm “for which it is not practicable to calculate damages and therefore has no adequate remedy at law.”).
Respondent’s contention that Petitioners have not shown irreparable injury because Plymouth has not yet had a confirmed case of COVID-19 among its inmate population is simply inaccurate. Opp.
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23. Respondent has received test results for merely seven inmates out of an inmate population of 702 – only 1% of all inmates. See Resp.’s Suppl. to Opp., McDonald Decl. II, ECF. 31-1 at ¶ 1; Resp.’s Opp., Ex. A., McDonald Decl. I, ECF. 23-1 at ¶ 7. The absence of positive tests from such a tiny fraction of the population reveals nothing about the prevalence of the virus, which easily evades screening measures due to the high rates of asymptomatic or pre-symptomatic infection, nor does it diminish the serious risk Respondent’s inadequate precautions pose to Petitioners. See Rich Aff. ¶ 7.
Finally, Respondent makes the baseless, incredible claim that Petitioners are actually safer within Plymouth than they would be if they were released. Resp.’s Opp’n at 23-24. Petitioners’ medical experts easily expose this fiction.5 Indeed, the dangers of correctional facilities compared to the general population are broadly recognized by state and federal courts, and Attorney General Barr himself. And these risks are particularly heightened at Plymouth, where Respondent has failed to implement multiple foundational preventative measures. IV. The Balance of Equities and Public Interest Favor Petitioners
Drs. Giftos and Rich state that preventing further outbreaks in jails and prisons is critical to flattening the curve of infection and hospitalization. Giftos Aff. ¶ 27; Rich Aff. ¶¶ 6, 15, 21-24. Respondent cites no expert opinion to the contrary. At most, he suggests—without support--that releasing detainees without considering where they would be housed poses risks to the public health. The evidence before the Court makes clear, however, that the public interest favors the requested injunction. See Banks, supra, slip op. at 24-26.
CONCLUSION For all the foregoing reasons, Petitioners’ application for a TRO and preliminary injunction should be granted.
5 See Giftos Aff. ¶ 18 (noting “the high numbers of people with chronic, often untreated, illnesses housed in a setting with minimal levels of sanitation, limited access to personal hygiene, limited access to medical care, and no possibility of staying at a distance from others.”); LaRocque Aff. ¶ 21 (“Defendants are not taking vital steps to prevent and mitigate a COVID-19 outbreak at the facility.”); Rich Aff. ¶ 5 (the nature of the virus “create[s] a perfect storm for correctional settings.”).
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Case 1:20-cv-10753-LTS Document 45 Filed 04/27/20 Page 7 of 8

Respectfully submitted,
/s/ Daniel Cloherty Daniel J. Cloherty (BBO # 565772) Saraa Basaria (BBO # 685705) TODD & WELD LLP One Federal Street, 27th Floor Boston, MA 02110 (617) 720-2626 dcloherty@toddweld.com sbasaria@toddweld.com

/s/ Emily Schulman Emily R. Schulman (BBO #566374) Adam W. McCall (pro hac vice) WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6077 emily.schulman@wilmerhale.com adam.mccall@wilmerhale.com
David E. Rudin (pro hac vice) WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 937-7249 david.rudin@wilmerhale.com
Attorneys for Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, and Dedrick Lindsey and the proposed class

6

Case 1:20-cv-10753-LTS Document 45 Filed 04/27/20 Page 8 of 8 CERTIFICATE OF SERVICE
I, Daniel J. Cloherty, counsel for Petitioners, hereby certify that this document has been filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).
/s/ Daniel J. Cloherty Daniel J. Cloherty
7

 
 Case 1:20-cv-10753-LTS Document 46 Filed 04/28/20 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

____________________________________________

)

ANTHONY BAEZ, JONATHAN BERMUDEZ,

)

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated;

)

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

ANTONE MONIZ, SUPERINTENDENT OF THE )

PLYMOUTH COUNTY CORRECTIONAL

)

FACILITY, in his official capacity;

)

)

)

Defendant-Respondent.

)

)

____________________________________________ )

Case No. 1:20-cv-10753

PETITIONERS’ MEMORANDUM OF LAW IN OPPOSITION TO RESPONDENT’S SECOND MOTION TO DENY PETITIONERS’ HABEAS PETITION

Respondent seeks a second bite at the jurisdictional apple in his second motion to deny

Petitioners’ habeas corpus petition. In his second memorandum, Respondent largely rehashes

arguments from his first memorandum that Petitioners cannot bring their challenge to the unsafe

and unsanitary conditions at Plymouth County Correctional Facility (“Plymouth”) in a habeas

corpus petition. Compare Resp. Mem. in Supp. of First Mot. to Deny 18, ECF No. 22, with Resp. Mem. in Supp. of Second Mot. to Deny (“Resp. Mem. II”) 3-5, ECF No. 40. Respondent

is still wrong on the law governing conditions of confinement claims.

First, contrary to Respondent’s claims, First Circuit courts have repeatedly recognized

that detainees may challenge their conditions of confinement in a habeas corpus petition.

Second, Respondent wrongly suggests both that petitioners challenging the fact or duration of

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confinement must seek release as the exclusive remedy for their constitutional deprivations and that Petitioners have not requested release. He is incorrect on both counts. Respondent’s purported exclusivity requirement does not exist and Petitioners allege in their Petition that adherence to the Centers for Disease Control and Prevention’s social distancing guidelines is both a necessary remedy and impossible without some of Plymouth’s federal detainees receiving release. Pet. ¶¶ 4, 131, ECF No. 1; Pet., Ex. C ¶¶ 6, 22, ECF No. 1-3; Ex. D ¶¶ 19, 21, ECF No. 1-4; Pet., Ex. E ¶ 27, ECF No. 1-5. Third, this Court has authority under the All Writs Act and its inherent equitable jurisdiction to issue relief short of release. I. CONDITIONS CLAIMS ARE COGNIZABLE IN HABEAS CORPUS PETITIONS
As Petitioners noted in their first opposition brief, “[t]he First Circuit has repeatedly ratified the use of habeas corpus petitions to address constitutional deficiencies in the conditions of detainees’ confinement.” Pets.’ Opp’n 5-8, ECF No. 38 (citing United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006); Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977); Francis v. Maloney, 798 F.3d 33, 36 (1st Cir. 2015)). Respondent makes no attempt to square his sweeping jurisdictional claims with this First Circuit case law or the Justice Department’s own guidance. Id. (citing Dep’t of Justice, Justice Manual, Federal Habeas Corpus 9-37.000, available at https://www.justice.gov/jm/jm-9-37000-federal-habeas-corpus (last visited Apr. 28, 2020)). Any attempt to do so would prove difficult.
Petitioners have established habeas corpus jurisdiction. First, both the Supreme Court and the First Circuit have acknowledged that detainees may challenge their conditions of confinement in a habeas corpus petition without challenging the fact or duration of confinement. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1863 (2017) (citing Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979); Preiser v. Rodriguez, 411 U.S. 475, 499 (1973)); Brennan v. Cunningham, 813 F.2d 1, 4-
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Case 1:20-cv-10753-LTS Document 46 Filed 04/28/20 Page 3 of 12

5 (1st Cir. 1987). Second, Petitioners’ challenge to the conditions of confinement at Plymouth

attacks “the fact or length of confinement” because they request release. See Brennan, 813 F.2d

at 4-5.

A.

Petitioners’ Conditions of Confinement Claims Sound in Habeas.

Respondent characterizes Preiser as creating a dichotomy between claims challenging

“conditions of confinement” and those challenging the “fact or duration” of confinement. Resp.

Mem. II at 3. That dichotomy is false. The Preiser Court “explicitly left open the possibility

that a challenge to prison conditions, cognizable under § 1983, might also be brought as a habeas

corpus claim.” Brennan, 813 F.2d at 4-5 (quoting Preiser, 411 U.S. at 499-500).1 As recently as

2017, the Supreme Court suggested that habeas corpus might be the best vehicle to attack an

alleged government policy of holding pretrial detainees in punitive conditions. See Ziglar, 137

S. Ct. at 1863.

Furthermore, the First Circuit since Brennan has observed that detainees may challenge

the conditions of their confinement without reference to the “fact or duration.” See DeLeon, 444

F.3d at 59 (“If the conditions of incarceration raise Eighth Amendment concerns, habeas corpus

is available.”); Miller, 564 F.2d at 105 (pre-Brennan case, observing that “[s]ection 2241

provides a remedy for a federal prisoner who contests the conditions of his confinement”).

Respondent is therefore wrong to suggest that “courts in this district have long observed” the

purported dichotomy in Preiser. Resp. Mem. II at 2-3.

Moreover, the cases upon which Respondent’s jurisdictional claim rests are inapposite.

They are not cases in which the petitioners alleged that their facilities were unsuitable; instead,

1 Respondent’s citation to Phea v. Pfeiffer, No. 220CV00283WBSGGHP, 2020 WL 1892427, at *1 (E.D. Cal. Apr. 16, 2020), is misplaced. Resp. Mem. II at 3. That court interpreted Preiser to limit the scope of habeas corpus challenges, but, as limned above, the Supreme Court and First Circuit have noted that Preiser imposed no such limitations. See Ziglar, 137 S. Ct. at 1863; Bell, 441 U.S. at 526 n.6; Brennan, 813 F.2d at 4-5.
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Case 1:20-cv-10753-LTS Document 46 Filed 04/28/20 Page 4 of 12
the petitioners claimed that their facilities’ staff violated their rights by taking or failing to take certain actions towards them as individuals. See Crooker v. Grondolsky, No. 12-12106, 2013 WL 101588, at *4 (D. Mass. Jan. 4, 2013) (alleging that staff deprived petitioner of cataract surgery); Kamara v. Farquharson, 2 F. Supp. 2d 81, 88–89 (D. Mass. 1998) (asserting that staff failed to treat petitioner’s hepatitis); Jenkins v. Spaulding, No. 19-10078, 2019 WL 1228093, at *1 (D. Mass. Feb. 22, 2019) (Kelley, M.J.) (claiming that staff racially abused petitioner), appeal dismissed, No. 19-1307, 2019 WL 4757883 (1st Cir. July 26, 2019). In contrast, Petitioners argue that Plymouth risks a deadly outbreak of COVID-19 so long as social distancing is not possible there. Respondent thus creates an unsafe environment for the whole proposed class of federal detainees in the facility.
In addition, First Circuit courts, including the very cases on which Respondent relies, do not draw a clear bright line separating those cases challenging conditions of confinement from those that are cognizable on habeas. See Resp. Mem. II at 2-3. Instead, those courts employ highly qualified language in their analysis: Judge O’Toole noted that “conditions of confinement claims . . . are generally not cognizable under § 2241.” Crooker, 2013 WL 101588, at *2 (emphasis added). Similarly, Judge Saris observed that “a claim of inadequate medical treatment while in legal custody is ordinarily brought as a civil rights suit.” Kamara, 2 F. Supp. 2d at 89 (emphasis added).2 While some courts point to civil actions as the “general” or “ordinary” vehicle for routine cases challenging conditions of confinement, they do not hold that that is the exclusive vehicle for such claims. In “both state and federal prisoner cases, there are many
2 Kamara also involved complex jurisdictional questions of immigration law, none of which are relevant here. See 2 F. Supp. 2d at 86 (commenting on “jurisdictional thicket” of interplay between immigration law and habeas corpus).
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Case 1:20-cv-10753-LTS Document 46 Filed 04/28/20 Page 5 of 12
indications that habeas will in fact lie for certain conditions of confinement claims.” Kane v. Winn, 319 F. Supp. 2d 162, 214 (D. Mass. 2004).
Indeed, Respondent’s contention that federal courts may not hear habeas claims concerning prison conditions that render confinement unlawful would not only run counter to Supreme Court and First Circuit precedent, it would also raise serious constitutional concerns about the Suspension Clause. See U.S. Const., Art. I, § 9, cl. 2; Boumediene v. Bush, 553 U.S. 723, 746 (2008) (opting “not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ”); INS v. St. Cyr, 533 U.S. 289, 305 & 301 n.13 (2001) (recognizing “the desirability of avoiding” having to “resolv[e] . . . a serious and difficult constitutional issue” about whether AEDPA and IIRIRA violate the Suspension Clause); cf. Devitri v. Cronen, 290 F. Supp. 3d 86, 93 (D. Mass. 2017) (finding jurisdiction under § 2241 and § 1331 in immigration proceedings, because otherwise, “the jurisdictional bar in 8 U.S.C. § 1252(g) . . . would violate the Suspension Clause as applied”).
Finally, even courts that deem civil actions under § 1983 or Bivens to be the more appropriate vehicle for routine challenges to an inmate’s conditions of confinement have recognized that a petitioner may use a habeas corpus petition to challenge his conditions of confinement in “extreme circumstances.” Crooker, 2013 WL 101588, at *2-3; see also Crooker v. Grondolsky, No. CIV.A. 12-12024-RGS, 2012 WL 5416422, at *1 n.2 (D. Mass. Nov. 1, 2012), aff'd, No. 12-2393 (1st Cir. July 26, 2013); Kane, 319 F. Supp. 2d at 214-15. The worldwide COVID-19 pandemic, which has brought our economy and social interactions to a grinding halt, surely constitutes an extreme circumstance, particularly where Petitioners allege that their conditions of confinement subject them to a serious risk of contracting this deadly
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Case 1:20-cv-10753-LTS Document 46 Filed 04/28/20 Page 6 of 12

disease. Accordingly, Petitioners state a cognizable habeas corpus claim even without reference

to whether they challenge the fact or duration of their confinement.

B.

Petitioners Challenge the Fact or Duration of Their Confinement

In any event, Petitioners do attack the fact or duration of their confinement because

release is necessary to accomplish adequate social distancing at Plymouth. “[W]here transfer or

release are at issue, a habeas petition is warranted.” Fox v. Lappin, 441 F. Supp. 2d 203, 206 (D.

Mass. 2005). Where, as here, petitioners seek “a quantum change in the level of custody,” to a

“less restrictive” form of custody, such as outright release, enlargement (i.e., bail), or transfer to

home confinement, they may properly request that relief in a habeas corpus petition. See

Gonzalez-Fuentes v. Molina, 607 F.3d 864, 873 (1st Cir. 2010) (quoting Wilkinson v. Dotson,

544 U.S. 74, 78 (2005); Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991)). Habeas corpus

petitions are especially suited to challenge detention facility failures to respond to COVID-19

“because COVID-19 can end people’s lives unexpectedly and abruptly, [so] COVID-19 claims

turn the condition of being incarcerated into a practice that affects the fact or duration of

confinement.” Decl. of Professor Judith Resnik Regarding Provisional Remedies for Detained

Individuals ¶ 26, Money v. Jeffreys, No. 20 cv 2094 (N.D. Ill. Apr. 8, 2020), ECF No. 24-3.

Respondent acknowledges that Judge Young disagrees with Respondent’s view of the

law, but asserts that “none of [Judge Young’s] examples is remotely similar to this case.” Resp.

Mem. II at 3 n.3. Not so. In Kane, Judge Young wrote that “challenges to the constitutional

adequacy of medical care” are cognizable in habeas “where transfer or release might be a

necessary remedy.” 319 F. Supp. 2d at 214-15. Judge Young is not alone in this view. Judge

Woodlock permitted a detainee to use a habeas corpus petition to ask for a transfer from a

detention center that the detainee alleged could not protect his health. See Garcia v. Spaulding,

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Case 1:20-cv-10753-LTS Document 46 Filed 04/28/20 Page 7 of 12

324 F. Supp. 3d 228, 233 (D. Mass. 2018). In the same vein, the New Hampshire federal district

court has ruled that a detainee had to bring such a claim in a habeas corpus petition and could not

do so in a civil rights action. See Heath v. Hanks, No. 18-CV-624-JD, 2019 WL 6954202, at *3

(D.N.H. Dec. 19, 2019).3

II. PETITIONERS ADEQUATELY ALLEGE RELEASE MAY BE NECESSARY

Respondent’s sole new argument is a request for this Court to fashion a new jurisdictional

requirement: that habeas corpus petitions challenging conditions of confinement must seek

release as the exclusive remedy for their constitutional deprivations. Resp. Mem. II at 3-4. The

Court should reject Respondent’s request. At most, Petitioners need only allege that release

“might be a necessary remedy,” not that it is the only remedy. Kane, 319 F. Supp. 2d at 214-15

(emphasis added). Moreover, even though Petitioners did not have to allege that release is

necessary to redress Respondent’s constitutional violations, they have colorably done so here.

See Pet. ¶¶ 4, 131.

A.

Petitioners Need Not Seek Release as the Sole Remedy for Their Injuries

Respondent attempts to transform the question of the correct remedy into a question of

jurisdiction. Yet those are two separate analyses. At this stage, Petitioners need only plead a

colorable entitlement to relief for the Court to have subject matter jurisdiction. See Lawless v.

3 Respondent contends that Livas v. Myers supports his position. No. 2:20-CV-00422, 2020 WL 1939583, at *8 (W.D. La. Apr. 22, 2020). It does not. First, it explicitly recognizes that habeas corpus “has routinely been acknowledged as the appropriate vehicle for [pretrial] detainees to challenge their custody.” Id. at n.12. Second, the court acknowledged that Supreme Court and Fifth Circuit precedent did not control its decision making. Id. at *8.
In contrast, Respondent’s citation to Eleventh Circuit district court decisions, Resp. Mem. II at 3, are misplaced because that circuit’s precedent “does not permit release from prison as a remedy for an unconstitutional condition of confinement.” Gayle v. Meade, No. 20-21553, 2020 WL 1949737, at *25 (S.D. Fla. Apr. 22, 2020); see also Benavides v. Gartland, No. 5:20-CV-46, 2020 WL 1914916, at *5 (S.D. Ga. Apr. 18, 2020) (quoting Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990) (“If these claims are considered in a habeas corpus context, however, this Court has held that even if a prisoner proves an allegation of mistreatment in prison that amounts to cruel and unusual punishment, he is not entitled to release.”)). No such precedent binds this Court.
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Steward Health Care Sys., LLC, 894 F.3d 9, 18 (1st Cir. 2018) (“[A] court has jurisdiction to

decide a case so long as the plaintiff has alleged a colorable federal claim.”) (quoting Bell v.

Hood, 327 U.S. 678, 682-83 (1946)); see also Belbacha v. Bush, 520 F.3d 452, 456 (D.C. Cir.

2008) (holding that petition colorably pleaded habeas corpus jurisdiction such that district court

could grant interim relief under the All Writs Act); Harris v. Warden, 425 F.3d 386, 388 (7th

Cir. 2005) (concluding that “substantive shortcomings” in habeas corpus petition did not defeat

district court’s jurisdiction to rule on merits). A colorable claim is merely a claim that is not “so

insubstantial, implausible, foreclosed by prior decisions of [the Supreme Court], or otherwise

completely devoid of merit as not to involve a federal controversy.” Steel Co. v. Citizens for a

Better Env't, 523 U.S. 83, 89-90 (1998) (quoting Oneida Indian Nation of N.Y. v. Cty. of Oneida,

414 U.S. 661, 666 (1974)). Indeed, the Kane court observed that habeas corpus serves as the

correct vehicle for a conditions of confinement claim where the petition indicates that release

“might be a necessary remedy.” Kane, 319 F. Supp. 2d at 214-15.

B.

Petitioners Did Plead that Release Is Necessary to Remedy the Unsafe and

Unsanitary Conditions at Plymouth

Petitioners colorably plead that Plymouth needs to release proposed class members to

prevent or mitigate an uncontrolled outbreak of COVID-19 at the facility. When a respondent

challenges whether the pleadings establish subject matter jurisdiction, courts “construe the

complaint liberally, treating all well-pleaded facts as true and indulging all reasonable

inferences” in the petitioner’s favor. Aversa v. United States, 99 F.3d 1200, 1209–10 (1st Cir.

1996). The Petition alleges that “release is the only means of protecting Petitioners and the class

they seek to represent from unconstitutional treatment.” Pet. ¶ 131. The Petition supports this

allegation with affidavits from experts who reviewed (1) affidavits from Plymouth detainees,

including Petitioners; (2) Plymouth’s leadership’s court filings, and (3) public evidence about the - 8 -

Case 1:20-cv-10753-LTS Document 46 Filed 04/28/20 Page 9 of 12
conditions at Plymouth: Dr. Giftos averred that it is “crucial” and Dr. Rich stated that it is “imperative” that Plymouth reduce its detainee population in their affidavits under the penalty of perjury. Ex. C ¶ 22; Ex. E ¶ 27. Drs. LaRocque and Rich opined that Plymouth would not have adequate social distancing unless it eliminated shared cells. Ex. C ¶¶ 6, 22; Ex. D ¶¶ 19, 21. As a consequence, notwithstanding Respondent’s protests, Petitioners did in fact argue “that no set of changes could ameliorate the alleged constitutional deprivation.” Resp. Mem. II at 3.
These affidavits, at a minimum, create a genuine federal issue for the Court to decide.4 Petitioners submit that the proper time to decide whether they are entitled to release is at the remedies stage (i.e., after the Court has ruled on jurisdiction and the merits of their claims for provisional and/or permanent relief). See Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 163 (1st Cir. 2007) (reasoning that courts should not grant motions to dismiss based on subject matter jurisdiction when the same facts are dispositive of both jurisdiction and the merits and are disputed). At the very least, this Court should order jurisdictional discovery because Respondent’s arguments turn on the facts regarding Petitioners’ claims. See Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001) (holding that “the court enjoys broad authority to order discovery, consider extrinsic evidence, and hold evidentiary hearings in order to determine its own jurisdiction”).
4 Respondent incorrectly suggests that the court’s analysis in Sacal-Micha v. Longoria, No. 1:20-CV-37, 2020 WL 1518861, at *4 (S.D. Tex. Mar. 27, 2020) aligns with his. Resp. Mem. II at 3. Not so. There, the court ruled that the petitioner did not sufficiently plead that his detention conditions required release because he relied on “conclusory arguments based on general articles.” Sacal-Micha, 2020 WL 1518861, at *5. Unlike the petitioner in Sacal-Micha, Petitioners submitted detailed expert affidavits that opined on the specific conditions in their facility. Accordingly, Petitioners’ claims sound in habeas.
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III. THIS COURT HAS THE POWER TO PRESERVE THE STATUS QUO AND FASHION A JUST REMEDY IN EQUITY With jurisdiction under 28 U.S.C. § 2241, the Court has authority under the All Writs Act
and its inherent equitable powers to issue the remedies that Petitioners requested in addition to release. See 28 U.S.C. § 1651; Hecht Co v. Bowles, 321 U.S. 321, 329 (1944); Fed. R. Civ. P. 65. Furthermore, this Court has “the power to preserve existing conditions while . . . determining its own authority to grant injunctive relief.” United States v. United Mine Workers of Am., 330 U.S. 258, 293 (1947); see also Belbacha, 520 F.3d at 456 (locating the basis for this authority in the All Writs Act). The All Writs Act authorizes this Court to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Federal Rule of Civil Procedure 65 and this Court’s inherent equitable jurisdiction also provide this Court with the power to order interim measures to prevent irreparable harm. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.”). Here, the Court should act to protect the status quo – Petitioners’ relative health and safety – by entering the relief Petitioners requested in their application for a temporary restraining order and/or a preliminary injunction.
This Court’s equitable jurisdiction provides it with discretion to “to do equity and to mould each decree to the necessities of the particular case.” Hecht, 321 U.S. at 329. As a consequence, this Court could determine, at the remedial stage, that the appropriate remedy includes both (1) releasing some class members and (2) ordering specific improvements in the prison’s formulation and implementation of its social distancing, cleaning and disinfecting, hygiene, and personal protective equipment policies. Respondent’s attempt to limit this Court’s ability to fashion the most just relief – without citing a clear statutory basis for such a limit –
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should thus be denied. See United States v. Mass. Water Res. Auth., 256 F.3d 36, 48 (1st Cir. 2001) (“Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.” (quoting Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)).
CONCLUSION Petitioners colorably alleges that relief may be necessary to remedy the unsafe and unsanitary conditions at Plymouth. Having done so, this Court can and should act pursuant to the All Writs Act and its inherent equitable powers to preserve Petitioners’ health and remedy Respondent’s constitutional violations. This Court thus should deny Respondent’s motion to deny Petitioners’ habeas corpus petition for lack of subject matter jurisdiction.

/s/ Daniel Cloherty Daniel J. Cloherty (BBO # 565772) Saraa Basaria (BBO # 685705) TODD & WELD LLP One Federal Street, 27th Floor Boston, MA 02110 (617) 720-2626 dcloherty@toddweld.com sbasaria@toddweld.com

/s/ Emily Schulman Emily R. Schulman (BBO #566374) Adam W. McCall (pro hac vice) WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6077 emily.schulman@wilmerhale.com adam.mccall@wilmerhale.com
David E. Rudin (pro hac vice) WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 937-7249 david.rudin@wilmerhale.com
Attorneys for Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, and Dedrick Lindsey and the proposed class
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Case 1:20-cv-10753-LTS Document 46 Filed 04/28/20 Page 12 of 12 CERTIFICATE OF SERVICE
I, Emily R. Schulman, counsel for Petitioners, hereby certify that this document has been filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).
/s/ Emily Schulman Emily R. Schulman
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 Case 1:20-cv-10753-LTS Document 47 Filed 04/28/20 Page 1 of 7

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ANTHONY BAEZ, JONATHAN BERMUDEZ )

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated,

)

)

Petitioners,

)

)

v.

)

)

ANTONE MONIZ,

)

)

Respondent.

)

Civil Action No. 20-10753-LTS

RESPONDENT ANTONE MONIZ’S REPLY IN FURTHER SUPPORT OF HIS MOTION TO DENY PETITIONERS’ HABEAS PETITION FOR LACK OF SUBJECT MATTER JURISDICTION AND FOR FAILURE TO STATE A CLAIM

Dated: April 28, 2020

ANDREW E. LELLING United States Attorney
JASON C. WEIDA Assistant U.S. Attorney
United States Attorney’s Office John Joseph Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, Massachusetts 02210 (617) 748-3180 jason.weida@usdoj.gov
Attorneys for the Government

Case 1:20-cv-10753-LTS Document 47 Filed 04/28/20 Page 2 of 7
Respondent respectfully submits this reply in further support of his motion to deny the Petition for lack of subject matter jurisdiction and for failure to state a claim.
ARGUMENT I. THE PRISON LITIGATION REFORM ACT APPLIES BECAUSE THIS
CASE IS A CIVIL ACTION WITH RESPECT TO PRISON CONDITIONS. In his opening brief, Doc. # 22 (“Br.”), Respondent argued that the PLRA prohibits this Court, as a single district court judge, from issuing a prison release order “in any civil action with respect to prison conditions.” § 3626(a)(3)(B). The scope of that prohibition is sweeping, covering “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison. § 3626(g)(2). The only exception, which is not applicable here, is for “habeas corpus proceedings challenging the fact or duration of confinement in prison.” Id. (emphasis supplied). Petitioners have five main responses but none has merit. First, they cite several cases for the misleading proposition that “the PLRA does not apply” to habeas cases. Doc. # 38 (“Opp.”) 5. The PLRA was codified in a many different statutory provisions, and Petitioners’ cited cases discuss a different provision of the PLRA, 28 U.S.C. § 1915, which governs filing fees. Courts, including those cited by Petitioners, have said that the fees provision of the PLRA does not apply to habeas proceedings. E.g., Martin v. Bissonette, 118 F.3d 871, 874 (1st Cir. 1997). But none of those cases addressed § 3626, which is the far broader provision at issue here. Second, Petitioners cite numerous extra-circuit cases for the irrelevant proposition that prisoners may use “habeas corpus petitions to address constitutional deficiencies in the conditions of detainees’ confinement.” Opp. 5-6.1 Respondent explained in his second motion to dismiss
1 One of Petitioners’ cited cases, Doc. # 51, Banks v. Booth, No. 20-849 (D.D.C. Apr. 2020), does not appear to address this issue at all. Indeed, the word “habeas” does not appear anywhere in the slip opinion. See generally id.
1

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(Doc. # 40) why that proposition is wrong based on the particular allegations in this case. But that inquiry does not address the key issue here, namely, whether this case is a “civil action with respect to prison conditions.” § 3626(a)(3)(B). Even if a habeas court could consider some challenges to a prisoner’s conditions of confinement, it does not follow that this Court is empowered to issue a prison release order in such a case, as Petitioners request here. Doc. # 1 at 39. Indeed, the PLRA expressly forecloses a single judge from granting that relief in any case, including habeas cases, “with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison,” outside of the narrow category of habeas cases “challenging the fact or duration of confinement in prison.” § 3626(g)(2).2
Third, after suggesting that the distinction does not matter, Petitioners claim that this case is a “fact or duration” case. Id. at 6-7. This is so, they say, because they seek release as a remedy, even though they admit that they challenge the “conditions of confinement.” Id. at 7. Here again, Petitioners rely only on cases describing the judge-made law on the scope of habeas, not the PLRA, where Congress expressly determined that prison release orders are foreclosed in any case that challenges conditions of confinement. § 3626(g)(2). Petitioners cite no authority, nor is Respondent aware of any, for the proposition that prisoners may circumvent the PLRA simply by seeking release in a case, like this one, that admittedly challenges conditions of confinement. In all events, any such case law would be irreconcilable with the plain text of the PLRA.
2 Petitioners’ reliance on the Justice Manual (Opp. 6) is misplaced for the same reason: its reference to habeas was made in the context of judge-made law on the scope of habeas, which is different in different circuits, and not in the context of the PLRA, which excludes from its scope only a narrow category of habeas cases not applicable here. In all events, the Justice Manual is guidance not law. See https://www.justice.gov/jm/jm-1-1000-introduction (“The Justice Manual provides internal DOJ guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. Nor are any limitations hereby placed on otherwise lawful litigation prerogatives of DOJ.”) (last visited Apr. 28, 2020).
2

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Fourth, Petitioners argue that this Court is free to release prisoners because the need for social distancing in light of COVID-19, rather than “crowding” per se, is the source of the problem. Opp. 8-11. That argument is critically flawed. The PLRA defines the term “prisoner release order” broadly to “include[ ] 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.” § 3626(g)(4). That is exactly what Petitioners seek here. Doc. # 1 at 39. Their attempt to restrict that broad definition by imposing a requirement from another part of the statute that applies only to a three-judge court prior to imposing a prisoner release order, § 3626(a)(3)(E)(i), is unsupported and unsupportable.3
Finally, Petitioners argue that, even if prisoner releases are foreclosed, the PLRA does not preclude “less intrusive” relief, like the remedial measures proposed in the Petition. Opp. 11-14. That is true as far as it goes. But, as described in Respondent’s second motion to dismiss, it would not be appropriate for this Court, as a habeas court, to order that relief in this case. Relief of that type should be sought in a civil rights case under § 1983, which provides those types of remedies for “constitutional claims that merely challenge the conditions of a prisoner’s confinement.” Nelson v. Campbell, 541 U.S. 637, 643 (2004). Indeed, Petitioners themselves appear to concede this point by citing and relying upon § 1983 cases when making this argument. Opp. 12. Yet they, represented by sophisticated counsel, continue to insist on a dramatic expansion of habeas law.
3 The cases that Petitioners rely on for that proposition, e.g., Reaves v. Department of Correction, 404 F. Supp. 3d 520 (D. Mass. 2019), which are inapt because they addressed prisoner transfers for necessary medical procedures, actually rejected the same argument that Petitioners make here when Massachusetts attempted to prevent the transfer by invoking § 3626(a)(3)(E)(i). See id. at 523 (“One of two necessary conditions for entering a release order, as Defendants noted, is that the three-judge panel find by clear and convincing evidence, that ‘crowding is the primary cause of the violation of a Federal right.’ Accepting Defendants argument would mean that the only way a district court can order the release of a prisoner is for a violation of his constitutional rights where overcrowding caused the violation, but not if any other reason caused the violation.”) (internal citation omitted). The argument is equally specious in this case.
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II. HABEAS IS NOT A PROPER AVENUE TO SEEK RELEASE FOR FEDERAL CRIMINAL DEFENDANTS AWAITING TRIAL.
In their opening brief, Respondent also argued that seeking traditional remedies afforded
to criminal defendants under the Bail Reform Act (“BRA”) was the only appropriate way for
Petitioners to obtain release due to the threat to health and safety posed by COVID-19. Br. 27-29.
Petitioners have two main responses and both fail. Their first argument, that Respondent
is “simply wrong” (Opp. 24), is contradicted by:
• Every court of appeals that has addressed this question. E.g., Reese v. Warden Philadelphia FDC, 904 F.3d 244, 246–48 (3d Cir. 2018) (holding that “federal defendants who seek pretrial release should do so through the means authorized by the Bail Reform Act, not through a separate § 2241 action”); Medina v. Choate, 875 F.3d 1025, 1029 (10th Cir. 2017), cert. denied, 138 S. Ct. 1573 (2018) (“[W]e now adopt the general rule that § 2241 is not a proper avenue of relief for federal prisoners awaiting federal trial.”); Falcon v. U.S. Bureau of Prisons, 52 F.3d 137, 139 (7th Cir. 1995) (same); Fassler v. United States, 858 F.2d 1016, 1017–19 (5th Cir. 1988) (same).4
• The only session in this district that has ruled on this question. Mahoney v. United States, No. 13-11094, 2013 WL 3148653, at *2 (D. Mass. June 17, 2013) (Gorton, J.) (“Where a defendant is awaiting trial, the appropriate vehicle for violations of his constitutional rights are pretrial motions or the expedited appeal procedure provided by the Bail Reform Act, 18 U.S.C. § 3145(b), (c), and not a habeas corpus petition.”).
• All treatise writers that have considered this question. E.g., Brian R. Means, Federal Habeas Manual § 1:29 (May 2019 Update) (“Section 2241 generally is not a proper avenue of relief for federal prisoners awaiting federal trial.”).
4 Respondent refers the Court in particular to the Tenth Circuit’s opinion in Medina, which contains a comprehensive review of the law governing the scope of habeas for federal criminal defendants awaiting trial, including the Supreme Court authority that undergirds the holdings in Medina and the other decisions described above. See Medina, 875 F.3d at 1026-28 (citing and discussing Jones v. Perkins, 245 U.S. 390 (1918), Henry v. Henkel, 235 U.S. 219 (1914), Johnson v. Hoy, 227 U.S. 245 (1913), Riggins v. United States, 199 U.S. 547 (1905), Greene v. Henkel, 183 U.S. 249 (1902), and Ex parte Royall, 117 U.S. 241 (1886)).
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The notion that Petitioners and the putative class can do in the aggregate what none of the above defendants was permitted to do individually is as fanciful as it is unsupported.5
Petitioners’ remaining argument, that individualized inquiries under the BRA would be “inefficien[t]” because there are 172 putative class members (Opp. 25), is not a valid reason for ignoring traditional remedies and expanding habeas in the unprecedented manner Petitioners seek. In all events, it is this lawsuit that threatens judicial economy. Every member of the putative class already has a pending criminal case, his own lawyer, and an assigned judge. Moreover, over 200 criminal defendants in this district, including members of the putative class, have already coordinated on release requests with the U.S. Attorney’s Office. If every other putative class member were to request release at this time, the Office stands ready—with a compliment of over 100 Assistant U.S. Attorneys capable of working on criminal cases—to assess and respond to each release request within 72 hours of receipt. III. A COURT-APPOINTED EXPERT IS UNWARRANTED IN THIS CASE.
Petitioners argue that “Respondent does not dispute” this Court’s authority to appoint an expert under Rule 706 of the Federal Rules of Evidence. Opp. 13. Although he does not dispute that authority as a general matter, Respondent disputed the appointment Petitioners envision here. Br. 27-28. Courts cannot give anyone powers that even they do not have themselves. See supra Part I. Nor can they abdicate core judicial functions, Stauble v. Warrob, Inc., 977 F.2d 690, 695 (1st Cir. 1992), like making individualized, case-specific custody determinations. With well over 20 judges in this district capable of making those determinations, there is no need to devolve that responsibility on anyone other than the judges already assigned to Petitioners’ criminal cases.
5 Neither of the two cases Petitioners cite (Opp. 24-25) mentioned, let alone grappled with, any of the above precedent delineating habeas rights for federal criminal defendants awaiting trial.
5

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Dated: April 28, 2020

Respectfully submitted,
ANTONE MONIZ Superintendent of the Plymouth County Correctional Facility
By his attorneys,
ANDREW E. LELLING, United States Attorney
By: /s/ Jason C. Weida Jason C. Weida Assistant U.S. Attorney United States Attorney’s Office 1 Courthouse Way, Suite 9200 Boston, Massachusetts 02210 (617) 748-3180 Jason.Weida@usdoj.gov

6

 
 Case 1:20-cv-10753-LTS Document 52 Filed 05/01/20 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ANTHONY BAEZ et al., Petitioners,
v. ANTONE MONIZ,
Respondent.

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Civil No. 20-10753-LTS

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ORDER

May 1, 2020

SOROKIN, J.

Pending before the Court are the petitioners’ Application for an Emergency Temporary

Restraining Order and Motion for Preliminary Injunction, Doc. No. 9, and the respondent’s

Motions to Dismiss, Doc. Nos. 21, 39.1 After consideration of the papers submitted by both

parties as to those motions, all affidavits and other exhibits supporting the Petition and the

motion papers, the respondent’s several status reports, and oral argument by counsel on both

motions yesterday, the Court concludes that this action sounds, at least in part, in habeas.2

However, serious factual issues bearing on the complex legal questions raised in the pending

1 The petitioners also seek class certification, Doc. No. 6, the consideration of which the respondent has sought to stay pending resolution of the jurisdictional questions raised in his motions to dismiss, Doc. No. 15. The Court has temporarily stayed the class certification question, Doc. No. 16, and will further whether to lift the stay and establish a briefing schedule after reviewing the respondent’s answers to the questions identified in this Order. 2 In reaching this conclusion, the Court has not resolved the issues raised by the pending motions, including whether the record supports the petitioners’ factual assertions and, if so, whether release or “enlargement” would be available and/or appropriate remedies.

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motions are either disputed or unclear on the present record. The Court requires further information in aid of resolving those factual issues.
Accordingly, the respondent is hereby ORDERED to provide answers to the following questions by the close of business on Wednesday, May 6, 2020:
A. Social Distancing3 1. Describe the housing arrangements for all members of the proposed class, including whether each member of the proposed class sleeps at least six feet apart from all other detainees, the maximum capacity for each cell or dorm, and the present number of detainees per cell or dorm? 2. Describe in detail the arrangements for meals for all detainees in the proposed class, including those in the intake quarantine area. Specify whether each detainee in the proposed class can eat meals at least six feet from all other detainees. 3. Describe in detail the arrangements for recreation for all detainees in the proposed class, including those in the intake quarantine area. Specify whether each detainee in the proposed class can participate in recreation while remaining at least six feet from all other detainees.
B. Face Masks 1. Describe the present policies and/or practices governing the use of face masks for detainees and staff.
3 If necessary, responses to each of the questions under this heading shall distinguish between different dorms, housing units, or areas within the facility.
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2. Explain the reason(s) and rationale for the existing face mask policies as to staff and detainees, including the rationale for not requiring masks for staff who enter and leave the facility each day?
3. Describe the information PCCF has provided to detainees and staff about when and how to wear the face masks they have received, when and how to clean or replace them, and when and how they may request additional or replacement face masks.
4. How many requests has the facility received from detainees for additional masks, and how many such requests have been granted? How many face masks does PCCF presently have available to fulfill such requests, and what kind are they? How does PCCF obtain more masks?
C. Testing 1. How many total COVID-19 test kits, of any kind, does PCCF presently have? How does PCCF obtain more tests? 2. Since March 10, 2020, how many detainees (whether in the proposed class or not) have exhibited a fever or complained of symptoms of respiratory illness (e.g., cough, shortness of breath, sore throat, runny nose).
D. Cleaning and Hygiene 1. Explain in detail present cleaning policies and procedures for common areas, the medical unit, the intake unit, showers, telephones, and any other high-touch areas. How does the respondent monitor and ensure consistent and effective implementation of such policies and procedures?
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2. Describe in detail the cleaning supplies that are available to detainees upon request for cleaning their own living spaces and explain the procedure by which detainees can request and use such supplies. How are detainees informed of the availability of such supplies and the procedure for requesting them? What instruction is given to staff members as to whether and when to permit detainees to use such supplies? Who is responsible for monitoring and replenishing such supplies?
3. Is there presently hand sanitizer available in every housing unit? Since when? Who is responsible for monitoring and refilling it?
E. Other 1. How many grievances has the respondent received since March 10, 2020 raising complaints related to COVID-19 and the facility’s response thereto; the availability of hand sanitizer, soap, or other hygiene supplies; the availability of cleaning supplies; and/or the availability of face masks or other PPE? Summarize the nature of the grievances and describe the response or resolution thereof. 2. What, if any, changes to operations or policy has the respondent undertaken as a result of the three confirmed cases of COVID-19 at PCCF that have been reported to the Court this week? Include any changes related to cleaning, sanitization, use of PPE, testing, and quarantine or other medical services.
4

Case 1:20-cv-10753-LTS Document 52 Filed 05/01/20 Page 5 of 5 3. Describe in detail any present COVID-19-related procedures governing each staff member prior to or upon entering PCCF, besides those described in paragraph 6(m) of Doc. No. 23-1. SO ORDERED. /s/ Leo T. Sorokin United States District Judge
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 Case 1:20-cv-10753-LTS Document 54 Filed 05/06/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ANTHONY BAEZ, JONATHAN BERMUDEZ )

JERMAINE GONSALVES, and DEDRICK

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LINDSEY on behalf of themselves and all others )

similarly situated,

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Petitioners,

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v.

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ANTONE MONIZ,

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Respondent.

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Civil Action No. 20-10753-LTS

RESPONDENT ANTONE MONIZ’S RESPONSE TO THE COURT’S ORDER DATED MAY 1, 2020

Pursuant to the Court’s Order, dated May 1, 2020 (Doc. # 52), Respondent Antone Moniz,
Superintendent of the Plymouth County Correctional Facility (“PCCF”), by and through his
attorney, Andrew E. Lelling, United States Attorney for the District of Massachusetts, respectfully
submits the following materials, which contain answers to the Court’s questions:
• Declaration of Sheriff Joseph D. McDonald, Jr., dated May 6, 2020, attached hereto. This declaration responds to the questions in Parts A (social distancing), B (face masks), D (cleaning and hygiene), and E (other) of the Court’s Order.
• Declaration of Marcia Norat, RN, dated May 6, 2020, attached hereto. This declaration responds to the questions in Part C (testing) of the Court’s Order.
In addition, by way of update, as of the date and time of filing, 17 inmates and detainees at
PCCF have been tested. As previously reported, one result of a state pretrial detainee was positive.
All other results of inmates and detainees were negative. Currently, there are no outstanding tests
of inmates or detainees.

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Dated: May 6, 2020

Respectfully submitted,
ANTONE MONIZ Superintendent of the Plymouth County Correctional Facility
By his attorneys,
ANDREW E. LELLING, United States Attorney
By: /s/ Jason C. Weida Jason C. Weida Assistant U.S. Attorney United States Attorney’s Office 1 Courthouse Way, Suite 9200 Boston, Massachusetts 02210 (617) 748-3180 Jason.Weida@usdoj.gov

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 Case 1:20-cv-10753-LTS Document 56 Filed 05/07/20 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

____________________________________________

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ANTHONY BAEZ, JONATHAN BERMUDEZ, )

JERMAINE GONSALVES, and DEDRICK

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LINDSEY on behalf of themselves and all others )

similarly situated;

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Plaintiffs-Petitioners,

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v.

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ANTONE MONIZ, SUPERINTENDENT OF THE )

PLYMOUTH COUNTY CORRECTIONAL

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FACILITY, in his official capacity;

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Defendant-Respondent.

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____________________________________________ )

Case No. 1:20-cv-10753

PETITIONERS’ SUPPLEMENTAL MEMORANDUM

Petitioners Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, and Derick Lindsey

(“Petitioners”), on behalf of themselves and all others similarly situated, submit this

memorandum regarding the conditions at Plymouth County Correctional Facility (“PCCF”) as of

May 7, 2020. Despite claims made in Respondent’s Response to the Court’s Order Dated May 1,

2020 (the “Response”) (ECF #54), Respondent’s conduct is insufficient to comply with CDC guidelines regarding COVID-19 and the situation at PCCF is largely status quo.1

1 Respondent’s testing procedures are counter to the guidance issued by the CDC, which states that “data indicate that symptom screening alone is inadequate to promptly identify and isolate infected persons in congregate settings such as correctional and detention facilities.” See Exhibit G -- COVID-19 in Correctional and Detention Facilities (May 6, 2020). According to the CDC, “[a]dditional strategies, including physical distancing, movement restrictions, use of cloth face coverings, intensified cleaning, infection control training for staff members, and disinfection of high-touch surfaces in shared spaces are recommended to prevent and manage spread within correctional and detention facilities.” Id. It is clear from the CDC’s guidance that PCCF must do more than test only after a person has presented with symptoms.
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Petitioners submit the following affidavits by individuals held on federal matters at PCCF:
1. Second Affidavit of Jane Peachy, Esq. on behalf of Jonathan Bermudez (Exhibit A) 2. Second Affidavit of Jessica Thrall, Esq. on behalf of Dedrick Lindsey (Exhibit B) 3. Affidavit of Attorney Keith Halpern on behalf of Jermaine Gonsalves (Exhibit C) 4. Affidavit of Saraa Basaria, Esq. on behalf of Anthony Baez (Exhibit D) 5. Affidavit of Emily Schulman, Esq. on behalf of Humberto Colon Martinez
(Exhibit E) 6. Affidavit of Attorney Keith Halpern on behalf of Roosevelt Wilkins (Exhibit F) A brief summary of some of the issues addressed in the affidavits is set forth below. Housing Arrangements Each of the individuals who have had affidavit submitted on their behalf have described failures by PCCF to promote social distancing and good hygiene. Petitioner Baez notes that he is in a cell with two other people. See Exhibit (“Ex.”) D at ¶3. Petitioner Lindsey continues to be housed in a dormitory unit in which the beds are directly next to each other. See Ex. B at ¶3. Meals Despite Respondent’s vague claim that detainees have been provided “significant opportunity for each detainee to eat six feet from the others” (Response at 2), Petitioners and other detainees have stated that there has been “no change” in the manner in which detainees are provided meals. See Ex. C at ¶4. Detainees sit next to each other for meals and there are often several detainees at one table. See Ex. A at ¶3, Ex. C at ¶4, Ex. D at ¶4, Ex. E at ¶6, Ex. F at ¶4. PCCF has not encouraged social distancing during mealtime by blocking off sections of tables so fewer individuals may occupy each table, nor have PCCF guards asked detainees to sit further apart from each other during mealtime. Id. Detainees stand in line for meals “right next to each
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other,” and are not asked to and do not stand six feet apart while waiting for meals. See Ex. A at ¶4, Ex. B at ¶5, Ex. C at ¶4, Ex. D at ¶4, Ex. E at ¶6, Ex. F at ¶4. Detainees do not wear masks while in line for meals and, in many units, the inmate workers who are serving meals do not wear masks. Id. Petitioner Bermudez is so concerned about this practice that he has refused meals and is eating very little. See Ex. A at ¶4.
Recreation Respondent’s Response also states that detainees have been provided “significant opportunity for each detainee to recreate six feet from the others.” See Response at 2-3. However, recreation areas contain as many as 36 detainees, and an unknown number of guards, at one time. See Ex. A at ¶5. PCCF has not suspended activities that require multiple people sharing the same touched surface, such as basketball and handball. See Ex. A at ¶5, Ex. B at ¶6, Ex. C at ¶5, Ex. D at ¶5, Ex. E at ¶7, Ex. F at ¶5. Detainees and most guards do not wear masks in the recreation area and individuals are not asked to and do not stand six feet apart from one another in the recreation area. Id. Many detainees use the telephones during their recreation time. The telephones are located close together – in some units, only two feet apart – and the detainees have not been asked to and do not socially distance in the telephone area. See Ex. B at ¶7, Ex. D at ¶6, Ex. E at ¶8. The telephones are not cleaned between uses. Id. Face Masks Respondent’s claims regarding the distribution and instructions regarding the use of masks is directly contradicted by the firsthand accounts of those incarcerated at PCCF. According to the Response, Respondent has issued at least four masks to each of the detainees and detainees were “encouraged to wear their masks while out of their cell.” See Response at 3. However, Petitioner Bermudez was told “to only wear his mask when he is leaving the unit or if
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he is getting his medication.” See Ex. A at ¶9. Petitioner Gonsalves has only been issued one mask. See Ex. C at ¶6. Mr. Martinez has only been given two masks and was not given any instructions on when he should use his mask. See Ex. E. at 4. Mr. Wilkins was only given one mask. See Ex. F at ¶6. Respondent has claimed that it “requir[es] employees to wear masks whenever they are within six feet of another person.” See Response at 3. However, detainees have noted that many guards do not wear masks. See Ex. A at ¶10, Ex. B at ¶10, Ex. C at ¶7, Ex. D at ¶4-5, Ex. E at ¶5, Ex. F at ¶7.
Cleaning and Hygiene Respondent’s claim regarding hand sanitizer is a misstatement, at best. See Response at 4. Respondent has claimed that there is “hand sanitizer on the dayroom wall of each housing unit.” Id. This would lead the Court to believe that the hand sanitizer described is a substance that would aid in sanitization. However, the “hand sanitizer” described cannot be reasonably classified as such because the substance contains no alcohol. See Ex. A at ¶17, Ex. B at ¶15, Ex. D at ¶11, Ex. E at ¶9. Further, Respondent has not provided hand sanitizer to all detainees. See Ex. C at ¶9. Further, it is uncontroverted that PCCF continues to provide detainees with one bar of soap and one roll of toilet paper per week. In some circumstances, detainees will be provided with more soap or toilet paper upon request, but that lies in the discretion of the guard from whom it was requested. See Ex. A at ¶15-16, Ex. B at ¶14, Ex. C at ¶9, Ex. D at ¶10, Ex. E at ¶11.
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Respectfully submitted,
/s/ Daniel Cloherty Daniel J. Cloherty (BBO # 565772) Saraa Basaria (BBO # 685705) TODD & WELD LLP One Federal Street, 27th Floor Boston, MA 02110 (617) 720-2626 dcloherty@toddweld.com sbasaria@toddweld.com

/s/ Emily Schulman Emily R. Schulman (BBO #566374) Adam W. McCall (pro hac vice) WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6077 emily.schulman@wilmerhale.com adam.mccall@wilmerhale.com
David E. Rudin (pro hac vice) WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 937-7249 david.rudin@wilmerhale.com
Attorneys for Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves, and Dedrick Lindsey and the proposed class

Dated: May 7, 2020
CERTIFICATE OF SERVICE I, Daniel J. Cloherty, counsel for Petitioners, hereby certify that this document has been filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).
/s/ Daniel J. Cloherty Daniel J. Cloherty

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EXHIBIT A

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EXHIBIT B

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

____________________________________________

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ANTHONY BAEZ, JONATHAN LINDSEY,

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JERMAINE GONSALVES, and DEDRICK

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LINDSEY on behalf of themselves and all others )

similarly situated;

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Plaintiffs-Petitioners,

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v.

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ANTONE MONIZ, SUPERINTENDENT OF THE )

PLYMOUTH COUNTY CORRECTIONAL

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FACILITY, in his official capacity;

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Defendant-Respondent.

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____________________________________________ )

Case No. 1:20-cv-10753

SECOND AFFIDAVIT OF JESSICA THRALL, ESQ. I, Jessica Thrall, attest: 1. My name is Jessica Thrall. I am an attorney in the Federal Public Defender Office. I represent Dedrick Lindsey (hereafter “Mr. Lindsey”) in a pending federal criminal case, United States v. Dedrick Lindsey, Docket No. 19-10091-MLW. 2. I spoke to Mr. Lindsey by phone on May 5, 2020. The following is the information he relayed to me about the conditions at Plymouth County Correctional Facility (“PCCF”) as of May 5, 2020. I affirm that the following paragraphs of this Affidavit accurately state what Mr. Lindsey told me during this conversation. 3. Mr. Lindsey continues to reside in a dorm unit. This is a setting where multiple individuals share living quarters. Their beds are next to one another. The beds are not 6 feet

Case 1:20-cv-10753-LTS Document 56-2 Filed 05/07/20 Page 3 of 4
apart. 4. Mr. Lindsey told me that social distancing is still not occurring at PCCF. Inmates in Mr.
Lindsey’s unit are eating their meals within arms’ length of each other. 5. Mr. Lindsey informed that his unit, which when we spoke last had 6-8 inmates now has
14. All fourteen of the inmates in Mr. Lindsey’s unit stand in line for meals at once. Inmates stand right next to each other while waiting in line for food. They do not stand six feet apart. Inmates and guards do not wear masks when inmates are in line for meals. Inmate workers, who are serving the food, do not wear masks.
6. Inmates in Mr. Lindsey’s unit are also not able to practice social distancing during their recreation time. Many guards and inmates do not wear masks in the recreation area and the practice of wearing masks is not enforced.
7. There is only one set of phones in the unit, which are three to four feet apart. If all of the phones are being used, it is impossible for inmates to stand six feet apart from each other.
8. Mr. Lindsey has been given four masks. Mr. Lindsey’s mask is a paper hospital mask. There is a piece of metal in the mask that can be molded over the nose.
9. Mr. Lindsey was not given instructions on how many times he could use the mask. He was not told he could get another mask upon request and was not given any instructions regarding cleaning the mask.
10. Some of the guards wear masks. There is no consistency. Each guard makes their own choice as to whether to wear a mask. Some guards wear masks they have brought from home.
11. Mr. Lindsey and other inmates in his unit were not given gloves. 12. Masks are not available for purchase in the commissary. 13. Mr. Lindsey inquired whether he could be tested for COVID-19 and was told that he
2

Case 1:20-cv-10753-LTS Document 56-2 Filed 05/07/20 Page 4 of 4 could only get his temperature checked.
14. Mr. Lindsey and others in his unit receive one bar of soap per week. He has asked for more soap and has occasionally received more soap.
15. There is one hand sanitizer dispenser in the unit. The bottle notes that it does not contain alcohol.
Signed under the penalties of perjury this __7_thday of May, 2020. __________________________ Jessica Thrall, Esq.
3

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EXHIBIT C

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EXHIBIT D

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

____________________________________________

)

ANTHONY BAEZ, JONATHAN BERMUDEZ, )

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated;

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

ANTONE MONIZ, SUPERINTENDENT OF THE )

PLYMOUTH COUNTY CORRECTIONAL

)

FACILITY, in his official capacity;

)

)

Defendant-Respondent.

)

)

)

)

____________________________________________ )

Case No. 1:20-cv-10753

AFFIDAVIT OF SARAA BASARIA, ESQ. I, Saraa Basaria, attest: 1. My name is Saraa Basaria. I am an attorney at Todd & Weld LLP. I represent Petitioner Anthony Baez in a pending civil matter, Baez, et al. v. Moniz, Civil Action No. 1:20-CV-10753LTS. 2. I spoke to Mr. Baez by phone on May 7, 2020. The following is the information he relayed to me about the conditions at Plymouth County Correctional Facility (“PCCF”) as of May 7, 2020. I affirm that the following paragraphs of this Affidavit accurately state what Mr. Baez told me during this conversation. 3. Mr. Baez resides in a cell with two other people. The five-person cell was occupied until recently when two of the individuals were released for matters unrelated to the above-mentioned

Case 1:20-cv-10753-LTS Document 56-4 Filed 05/07/20 Page 3 of 4
petition. Mr. Baez is not able to be six feet apart from his cell mates. 4. Mr. Baez eats his meals with half of his unit in the common area. Multiple detainees sit at
the same table at once and the guards do not ask detainees to leave open spaces at tables. Some people are eating elbow to elbow. Half of the unit, approximately 36 people, line up at once for meals. Detainees are in line right next to each other and are not asked to and do not stand six feet apart. Detainees do not wear masks while in line for their meals. Many guards do not wear masks when detainees are eating meals.
5. Mr. Baez recreates in the common recreation area. Many guards and inmates do not wear masks in the recreation area and the practice of wearing masks is not enforced. Detainees continue to play sports that require contact with the same surfaces as other detainees, such as basketball and handball.
6. There is one set of phones in the unit, which are three to four feet apart. If all of the phones are being used, it is impossible for inmates to stand six feet apart from each other. Telephones are not cleaned between uses by detainees.
7. Mr. Baez has been given three masks. Mr. Baez’s mask is a paper hospital mask. It is a long rectangle shape with two elastics that go over his ears to hold it in place. There is a piece of metal in the mask that can be molded over the nose.
8. Mr. Baez was not given instructions on how many times he could use the mask. He was told to wear his mask if he leaves the unit for video court or to go to the infirmary.
9. Mr. Baez knows of detainees who have asked for new masks and were told that they could only get one mask per week. Masks are not available for purchase in the commissary.
10. Mr. Baez and others in his unit receive one bar of soap per week. He has asked for more soap and was told by a guard that there was no more soap available. He is given one roll of toilet
2

Case 1:20-cv-10753-LTS Document 56-4 Filed 05/07/20 Page 4 of 4 paper per week. He is sometimes able to get more, but it is inconsistent.
11. There is one hand sanitizer dispenser in the unit. He read the bottle and it states that it does not contain alcohol.
Signed under the penalties of perjury this 7th day of May, 2020. __________________________ Saraa Basaria, Esq.
3

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EXHIBIT E

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1. I represent Humberto Colon Martinez in a pending criminal case in the District of Massachusetts, Docket No. CR-19-10187-NMG. Mr. Martinez is currently a federal pretrial detainee in the Plymouth County Correctional Facility (“Plymouth”). He is currently housed in Unit H-3 along with other federal detainees. When I spoke with Mr. Martinez on May 6, 2020, he relayed the following information to me about his confinement at Plymouth.
2. Plymouth officials have not educated Mr. Martinez about the risks of COVID-19; the modes by which it is transmitted, its symptoms; the meaning or importance of social distancing, the importance of proper hand hygiene or what that consists of; or the importance, longevity or proper use of face masks.
3. During the week of April 27, 2020, two small signs related to COVID-19 and hygiene were posted in the common area of his Unit. No explanation was given for these signs, nor were detainees directed to read and follow them. Shortly after that, Mr. Martinez was moved from a shared cell to a single cell in H-3.
4. Mr. Martinez was given a face mask on two occasions in April – once toward the beginning and the other toward the end of the month. He was not educated in any way about why he (and others) should wear a face mask, when he should use it, how to use it properly, or how long his face mask would remain effective. He was not told that consistent use of face masks by detainees and staff alike would help mitigate the spread of COVID-19. He was never told that he could receive an additional or replacement mask upon request.
5. Face masks are used inconsistently at best by both staff and detainees alike. Far more often than not, Plymouth correctional officers and federal detainees do not wear face masks. The correctional officers do not promote the use of face masks among federal detainees.
6. Mr. Martinez’s Unit eats in two shifts, with approximately 35 detainees in each shift. There is virtually no social distancing among the detainees during mealtimes or while waiting in line for food. Plymouth correctional officers and staff do not promote social distancing among detainees during mealtime. Plymouth correctional officers and detainees, including those serving the food, typically do not wear face masks during meal times.
7. Mr. Martinez’s Unit has split shifts for recreation time, with approximately 35 detainees in each shift. There is virtually no social distancing among detainees during recreation periods, and it would be very challenging to maintain social distance throughout the recreation period. Basketball and other contact activities are still taking place during recreation time. Plymouth correctional officers and staff do not promote social distancing among detainees during recreation periods. Plymouth correctional officer and detainees typically do not wear face masks during recreation periods.

Case 1:20-cv-10753-LTS Document 56-5 Filed 05/07/20 Page 3 of 3
8. The telephones in the Unit are located in close proximity to one another and detainees stand virtually shoulder-to-shoulder when making calls. It is impossible to socially distance from other detainees when using the telephones and Plymouth correctional officers and staff do not promote social distancing among detainees who are using the telephones. Most detainees do not wear face masks when using the telephones, and they are not cleaned or disinfected between use.
9. During the week of April 27, 2020, a dispenser containing a liquid sanitizer was placed in the common area of the Unit, opposite from where the telephones are located. Mr. Martinez has heard from other inmates that the alcohol content of this liquid sanitizer is too low to protect against COVID-19, but he has no first-hand knowledge of its actual alcohol content.
10. Mr. Martinez reports that he can ask the correctional officers for cleaning supplies to clean his cell once daily. Gloves are not provided to him when he cleans, nor has he been instructed on how best to clean his cell to reduce the risk of COVID-19. He reports that the Unit’s common area is cleaned twice daily, the same frequency with which it was cleaned before the pandemic.
11. Mr. Martinez receives one bar of soap and one roll of toilet paper weekly. He has never been told that more is available to him upon request. To the contrary, Mr. Martinez has repeatedly heard correctional officers direct detainees not to complain about the provisions they receive or their conditions of confinement and has heard officers threaten to put detainees in the “hole” if they continue to do so.
Signed under penalties of perjury this 7th day of May 2020.
/s/ Emily R. Schulman Emily R. Schulman

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EXHIBIT F

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EXHIBIT G

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Morbidity and Mortality Weekly Report (MMWR)

Early Release / May 6, 2020 / 69

Please note:. This report has been corrected.

Megan Wallace, DrPH1,2*; Liesl Hagan, MPH1*; Kathryn G. Curran, PhD1; Samantha P. Williams, PhD1; Senad Handanagic, MD1; Adam Bjork, PhD1; Sherri L. Davidson, PhD3; Robert T. Lawrence, MD4; Joseph McLaughlin, MD5; Marilee Butter eld6; Allison E. James, DVM2,7; Naveen Patil, MD7; Kimberley Lucas, MPH8; Justine Hutchinson, PhD8; Lynn Sosa, MD9; Amanda Jara, DVM10; Phillip Gri n11; Sean Simonson, MPH12; Catherine M. Brown, DVM13; Stephanie Smoyer14; Meghan Weinberg, PhD15; Brittany Pattee, MPH, MN16; Molly Howell, MPH17; Matthew Donahue, MD2,18; Soliman Hesham, MD19; Ellen Shelley, DNP19; Grace Philips, JD20; David Selvage, MHS21; E. Michele Staley, MA22; Anthony Lee23; Mike Mannell, MPH23; Orion McCotter24; Raul Villalobos, MD25; Linda Bell, MD26; Abdoulaye Diedhiou, MD26; Dustin Ortbahn, MPH27; Joshua L. Clayton, PhD27; Kelsey Sanders, MPH28; Hannah Cranford, MPH29; Bree Barbeau, MPH30; Katherine G. McCombs, MPH31; Caroline Holsinger, DrPH31; Natalie A. Kwit, DVM32; Julia C. Pringle, PhD2,32; Sara Kariko, MD33; Lara Strick, MD33; Matt Allord, JD34; Courtney Tillman, MPH35; Mariel Marlow, PhD1 (View author a liations)

View suggested citation
Summary
What is already known about this topic?
Correctional and detention facilities face challenges in controlling the spread of infectious diseases because of crowded, shared environments and potential introductions by sta members and new intakes.
What is added by this report?
Among 37 jurisdictions reporting, 32 (86%) reported at least one con rmed COVID-19 case among incarcerated or detained persons or sta members, across 420 correctional and detention facilities. As of April 21, 2020, 4,893 cases and 88 deaths among incarcerated and detained persons and 2,778 cases and 15 deaths among sta members have been reported.
What are the implications for public health practice?

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Box

Prompt identi cation of persons with COVID-19 and consistent application of prevention measures within correctional and detention facilities are critical to protecting incarcerated or detained persons, sta members, and the communities to which they return.

Table References

Related Materials

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An estimated 2.1 million U.S. adults are housed within approximately 5,000 correctional and detention facilities† on any given day (1). Many facilities face signi cant challenges in controlling the spread of highly infectious pathogens such as SARS-CoV-2, the virus that causes coronavirus disease 2019 (COVID-19). Such challenges include crowded dormitories, shared lavatories, limited medical and isolation resources, daily entry and exit of sta members and visitors, continual introduction of newly incarcerated or detained persons, and transport of incarcerated or detained persons in multiperson vehicles for courtrelated, medical, or security reasons (2,3). During April 22–28, 2020, aggregate data on COVID-19 cases were reported to CDC by 37 of 54 state and territorial health department jurisdictions. Thirty-two (86%) jurisdictions reported at least one laboratory-con rmed case from a total of 420 correctional and detention facilities. Among these facilities, COVID-19 was diagnosed in 4,893 incarcerated or detained persons and 2,778 facility sta members, resulting in 88 deaths in incarcerated or detained persons and 15 deaths among sta members. Prompt identi cation of COVID-19 cases and consistent application of prevention measures, such as symptom screening and quarantine, are critical to protecting incarcerated and detained persons and sta members.

To estimate the prevalence of COVID-19 in U.S. correctional and detention facilities, CDC requested aggregate surveillance data from 54 state and territorial health department jurisdictions. Data were provided to CDC during April 22–28, 2020 and included laboratory-con rmed cases identi ed and reported to jurisdictions during January 21–April 21, 2020. Requested data elements included 1) the number of facilities that had reported at least one laboratory-con rmed COVID-19 case; 2) the cumulative number of incarcerated or detained persons and sta members with laboratory-con rmed COVID-19; and 3) the cumulative number of COVID-19–associated hospitalizations and deaths among incarcerated or detained persons and sta members. Jurisdictions were asked to include data for persons in the custody of or working for state and local corrections, U.S. Immigration and Customs Enforcement, U.S. Marshals Service, and Federal Bureau of Prisons. Data on the number tested or persons with negative test results were not requested.

Thirty-seven (69%) jurisdictions provided aggregate surveillance data; 32 (86%) of those reported at least one laboratorycon rmed COVID-19 case among incarcerated or detained persons or sta members. In those 32 jurisdictions, 420 facilities reported 4,893 COVID-19 cases among incarcerated or detained persons and 2,778 cases among sta members (Table). More than half (221; 53%) of the a ected facilities reported cases only among sta members. Among COVID-19 cases in incarcerated or detained persons, 491 (10%) COVID-19–associated hospitalizations and 88 (2%) deaths were reported; among sta member cases, 79 (3%) hospitalizations and 15 (1%) deaths were reported. Among the 32 jurisdictions reporting cases, the median number of a ected facilities was 10 (range = 1–59), the median number of cases in incarcerated or detained persons was 34 (range = 0–858), and the median number of cases in sta members was 26 (range = 1–756).
Top
Discussion
This analysis provides the rst documentation of the number of reported laboratory-con rmed cases of COVID-19 in correctional and detention facilities in the United States, although information on the proportion of incarcerated and detained persons and sta members tested was not available. Approximately one half of facilities with COVID-19 cases reported them among sta members but not among incarcerated persons. Because sta members move between correctional facilities and their communities daily, they might be an important source of virus introduction into facilities. Regular symptom screening can help to reduce introduction of the virus from symptomatic persons, whether through sta members, new intakes, or incarcerated or detained persons who attend court-related or medical appointments in the community. Screening all incarcerated or detained persons quarantined as close contacts of a case twice daily and promptly isolating persons with symptoms can help identify persons infected as a result of transmission that occurred within the facility and control spread of disease.

Although symptom screening is important, an investigation of a COVID-19 outbreak in a skilled nursing facility found that approximately one half of cases identi ed through facility-wide testing were among asymptomatic and presymptomatic persons, who likely contributed to transmission (4). These data indicate that symptom screening alone is inadequate to promptly identify and isolate infected persons in congregate settings such as correctional and detention facilities. Additional strategies, including physical distancing, movement restrictions, use of cloth face coverings, intensi ed cleaning, infection control training for sta members, and disinfection of high-touch surfaces in shared spaces are recommended to prevent and manage spread within correctional and detention facilities (Box). Some jurisdictions have implemented decompression strategies to reduce crowding, such as reducing or eliminating bail and releasing persons to home con nement or community supervision. Testing might become an important strategy to include when it is more widely available and when facilities have developed plans for how the results can be used to inform operational strategies to reduce transmission risk.

The ndings in this report are subject to at least six limitations, each of which could result in an underestimation of the number of COVID-19 cases in correctional facilities. First, only 69% of jurisdictions reported data; therefore, these results are not representative of the entire United States. Second, many facilities do not provide testing to sta members, making data

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not representative of the entire United States. Second, many facilities do not provide testing to sta members, making data

completeness dependent on sta members self-reporting their diagnosis to their employer after being tested by their personal health care providers. Third, some jurisdictions received data only from state prisons and were missing data from local jails and federal or privately operated facilities. Fourth, data on the total number of facilities, the total number of incarcerated and detained persons, and the total number sta members were not available; thus, proportions of facilities and persons a ected could not be determined. Fifth, one jurisdiction reported only collecting data on facility outbreaks (de ned by the jurisdiction as >1 COVID-19 case per facility). Finally, data are not available to determine the extent to which variations in testing availability and testing practices across states in uenced the number of COVID-19 cases reported among sta and incarcerated and detained persons.

Prompt identi cation of COVID-19 cases and consistent application of prevention measures are critical to protecting incarcerated and detained persons, correctional and detention facility sta members, and the communities to which they return (3). Additional data on COVID-19 in correctional and detention settings, particularly from facilities that have conducted broad-based testing, is needed to identify di erences in disease risk based on demographic characteristics, underlying medical conditions, and type of correctional and detention setting, and to evaluate the e ectiveness of mitigation measures. CDC recommends that facility administrators, with the support of local health departments and partners, prepare for potential SARS-CoV-2 transmission, implement prevention measures, and follow guidance for the management of suspected and con rmed COVID-19 cases to prevent further transmission, which is available at https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html (3).
Top
Acknowledgments
State, local, and territorial health departments and departments of corrections; a ected facilities; Kathryn Arnold, Johnni Daniel, Bradley Goodwin, Sean M. Gri ng, Diane M. Harris, Katherine Hendricks, Mary M. Jenkins, Kathleen H. Krause, Eva Leidman, Gary Lowry, Erin Parker, Dale Rose, Sharon Saydah, De’Lisa Simpson, CDC COVID-19 Emergency Response.
Top Corresponding author: Megan Wallace, phu3@cdc.gov.
Top

1CDC COVID-19 Emergency Response; 2Epidemic Intelligence Service, CDC; 3Alabama Department of Public Health; 4State of Alaska Department of Corrections; 5Alaska Division of Public Health; 6Arizona Department of Health Services; 7Arkansas Department of Health; 8California Department of Public Health; 9Connecticut Department of Public Health; 10Georgia Department of Public Health; 11Kansas Department of Health and Environment; 12O ce of Public Health, Louisiana Department of Health; 13Massachusetts Department of Public Health; 14Michigan Department of Corrections; 15Michigan Department of Health and Human Services; 16Minnesota Department of Health; 17North Dakota Department of Health; 18Nebraska Department of Health and Human Services; 19New Jersey Department of Corrections; 20New Mexico Association of Counties; 21New Mexico Department of Health; 22New York State Department of Corrections and Community Supervision; 23Oklahoma State Department of Health; 24Oregon Health Authority; 25Physician Correctional, San Juan, Puerto Rico; 26South Carolina Department of Health and Environmental Control; 27South Dakota Department of Health; 28Texas Department of State Health Services; 29U.S. Virgin Islands Department of Health; 30Utah Department of Health; 31Virginia Department of Health; 32Vermont Department of Health; 33Washington Department of Corrections; 34Wisconsin Department of Corrections; 35Wyoming Department of Health.
Top All authors have completed and submitted the International Committee of Medical Journal Editors form for disclosure of potential con icts of interest. No potential con icts of interest were disclosed.
Top

* These authors contributed equally.

† Correctional facilities refer to state and federal prisons, which incarcerate persons who have been tried for a crime, convicted, and sentenced for a duration >1 year. Those convicted of federal crimes are incarcerated in federal prisons; those convicted of state crimes are held in state prisons. Detention facilities refer to jails or detention centers, which temporarily detain persons awaiting sentencing or deportation, usually for a duration of <1 year.
Top
References

1. Bureau of Justice Statistics. Key statistic: total correctional population. Washington, DC: US Department of Justice, Bureau of Justice Statistics; 2018. https://www.bjs.gov/index.cfm?ty=kfdetail&iid=487 
2. Bick JA. Infection control in jails and prisons. Clin Infect Dis 2007;45:1047–55. CrossRef  PubMed 

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3. CDC. Interim guidance on management of coronavirus disease 2019 (COVID-19) in correctional and detention facilities. Atlanta, GA: US Department of Health and Human Services, CDC; 2020. https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html
4. Arons MM, Hat eld KM, Reddy SC, et al. Presymptomatic SARS-CoV-2 infections and transmission in a skilled nursing facility. N Eng J Med 2020. Epub April 24, 2020.
Top
TABLE. COVID-19 among incarcerated and detained persons and correctional and detention facility sta members — 32 U.S. state and territorial health department reporting jurisdictions,* January 21–April 21, 2020†

Characteristic
Facilities reporting at least one con rmed COVID-19 case among incarcerated or detained persons or sta members
Facilities reporting COVID-19 cases only among sta members
COVID-19 cases among incarcerated or detained persons
COVID-19–associated hospitalizations among incarcerated or detained persons
COVID-19–associated deaths among incarcerated or detained persons
COVID-19 cases among facility sta members
COVID-19–associated hospitalizations among facility sta members
COVID-19–associated deaths among facility sta members

No. (%) of cases among reporting jurisdictions
420
221 (53) 4,893
491 (10)
88 (2) 2,778 79 (3) 15 (1)

Abbreviation: COVID-19 = coronavirus disease 2019. * Jurisdictions reporting at least one laboratory-con rmed COVID-19 case among incarcerated or detained persons or sta members. † Data provided to CDC during April 22–28, 2020.
Top
BOX. COVID-19 guidance for correctional and detention facilities

Prepare for COVID-19

Update an emergency plan for COVID-19 response Coordinate with local public health department and other correctional and detention facilities Require that sta members and visitors stay home if ill, and consider suspending in-person visitation Ensure access to soap at no cost to encourage frequent handwashing Plan for how space will be used to medically isolate and care for ill persons and to quarantine close contacts Plan for potential sta member shortages Train sta members to safely use personal protective equipment Enhance facility cleaning and disinfection

Prevent introduction of COVID-19 into facilities from the community

Limit nonmedical transfers into and out of the facility

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Screen all new entrants, sta members, and visitors for symptoms before they enter the facility Assign sta members to consistent locations to limit movement between facility areas Encourage daily use of cloth face coverings by incarcerated or detained persons and sta members Use multiple physical distancing strategies (e.g., sleep head to foot, stagger meals and showers, reduce the number of persons allowed in a common area at one time, suspend group gatherings*) Regularly communicate with sta members and incarcerated or detained persons about COVID-19 and how they can protect themselves and others

Manage COVID-19 in facilities

Activate emergency plan and notify public health o cials Medically isolate ill persons and quarantine close contacts Evaluate ill persons for underlying medical conditions that would increase their risk for severe illness from COVID-19,† and provide necessary care on-site or transfer to a health care facility Incorporate screening for COVID-19 symptoms into release planning§ Continue activities from preparation and prevention phases

Abbreviation: COVID-19 = coronavirus disease 2019.

* Other suggestions available in full corrections guidance. https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html.

† Asthma, chronic lung disease, diabetes, serious heart conditions, chronic kidney disease being treated with dialysis, severe obesity, age ≥65 years, immunocompromising conditions, and liver disease. https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html.

§ Additional guidance on SARS-CoV-2 testing in correctional and detention facilities will be provided as testing becomes more widely available and strategies are developed to assist facilities in using test results to inform their operational e orts to reduce transmission risk.
Top

Suggested citation for this article: Wallace M, Hagan L, Curran KG, et al. COVID-19 in Correctional and Detention Facilities — United States, February–April 2020. MMWR Morb Mortal Wkly Rep. ePub: 6 May 2020. DOI: http://dx.doi.org/10.15585/mmwr.mm6919e1  .
MMWR and Morbidity and Mortality Weekly Report are service marks of the U.S. Department of Health and Human Services. Use of trade names and commercial sources is for identi cation only and does not imply endorsement by the U.S. Department of Health and Human Services. References to non-CDC sites on the Internet are provided as a service to MMWR readers and do not constitute or imply endorsement of these organizations or their programs by CDC or the U.S. Department of Health and Human Services. CDC is not responsible for the content of pages found at these sites. URL addresses listed in MMWR were current as of the date of publication.

All HTML versions of MMWR articles are generated from nal proofs through an automated process. This conversion might result in character translation or format errors in the HTML version. Users are referred to the electronic PDF version (https://www.cdc.gov/mmwr) and/or the original MMWR paper copy for printable versions of o cial text, gures, and tables.

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Page last reviewed: May 6, 2020

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 Case 1:20-cv-10753-LTS Document 57 Filed 05/08/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ANTHONY BAEZ, JONATHAN BERMUDEZ )

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated,

)

)

Petitioners,

)

)

v.

)

)

ANTONE MONIZ,

)

)

Respondent.

)

Civil Action No. 20-10753-LTS

RESPONDENT’S SUPPLEMENT

Respondent Antone Moniz, Superintendent of the Plymouth County Correctional Facility, by and through his attorney, Andrew E. Lelling, United States Attorney for the District of Massachusetts, respectfully submits the four attached declarations that respond to the inaccuracies in the declarations that Petitioners submitted yesterday. Each declarant testifies based on firsthand knowledge.
Respectfully submitted, ANTONE MONIZ Superintendent of the Plymouth County Correctional Facility

By his attorneys,

ANDREW E. LELLING, United States Attorney

By: /s/ Jason C. Weida Jason C. Weida Assistant U.S. Attorney

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Dated: May 8, 2020

United States Attorney’s Office 1 Courthouse Way, Suite 9200 Boston, Massachusetts 02210 (617) 748-3180 Jason.Weida@usdoj.gov

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ANTHONY BAEZ et al., Petitioners,
v. ANTONE MONIZ,
Respondent.

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Civil No. 20-10753-LTS

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ORDER ON MOTIONS TO DISMISS (DOC. NOS. 21, 39) AND APPLICATION FOR INJUNCTIVE RELIEF (DOC. NO. 9)

May 18, 2020

SOROKIN, J.

In this action, four federal pretrial detainees housed at the Plymouth County Correctional

Facility (“PCCF”), on behalf of themselves and all other federal criminal detainees at PCCF,

challenge their confinement in light of the present COVID-19 pandemic. The “plaintiff-

petitioners” allege violations of the Fifth and Eighth Amendments, arising from the manner in

which PCCF has responded to the pandemic, in a “Class Action Petition Seeking Writ of Habeas

Corpus Under 28 U.S.C. § 2241 and Complaint for Declaratory and Injunctive Relief.” Doc. No.

1. The petition was accompanied by an “Application for an Emergency Temporary Restraining

Order and Preliminary Injunctive Relief.” Doc. No. 9.1 The respondent—Antone Moniz, the

Superintendent of PCCF, represented here by counsel from the United States Attorney’s Office

for this District—opposes the request for injunctive relief and seeks dismissal of the petition in

1 The petitioners also seek class certification, Doc. No. 6, the consideration of which the Court has stayed, Doc. No. 16.

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its entirety on various grounds. Doc. Nos. 21, 23, 39. The Court heard oral argument on the motions to dismiss and the application for injunctive relief at a video hearing on April 30, 2020, Doc. No. 50, requested additional information from Moniz, Doc. No. 52, and has received that information as well as supplemental submissions from both parties, Doc. Nos. 53-60.
The motions to dismiss and the application for injunctive relief are now ripe. For the reasons set forth below, the motions to dismiss are DENIED, as is the application for injunctive relief. Because Moniz, in part, challenges this Court’s jurisdiction to entertain the petitioners’ claims and to award the relief sought, the Court will address the motions to dismiss first. I. DISMISSAL
Moniz cites four reasons he believes dismissal is warranted.2 The Court addresses and rejects each.
First,3 Moniz argues that the constitutional claims the petitioners allege here are properly viewed as “challenge[s] to the conditions of their confinement,” and that such challenges fall “well outside the core of habeas corpus.” Doc. No. 40 at 2. As even Moniz’s counsel agreed at oral argument, however, habeas relief plainly is available to a petitioner challenging the fact or duration of his confinement and seeking release from such confinement. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). And, the First Circuit has held, habeas relief also is available under § 2241 to a petitioner seeking what “can fairly be described as a quantum change in the level of
2 Initially, Moniz raised one further reason, arguing the petitioners lacked standing to pursue their constitutional claims because, he urged, they had not established injury in fact or redressability. Doc. No. 21 at 2; Doc. No. 22 at 21-25. However, after a state inmate at PCCF tested positive for COVID-19 on April 30, 2020, Moniz withdrew his standing challenge. Doc. No. 49 at 2. 3 Moniz filed two motions to dismiss. Doc. Nos. 21, 39. Because the analysis of the challenges levied in his first such motion to dismiss is impacted by the resolution of the jurisdictional argument advanced in his second motion, the Court begins by addressing the latter-filed challenge to its habeas jurisdiction.
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[his] custody.” Gonzalez-Fuentes v. Molina, 607 F.3d 864, 873 (1st Cir. 2010). Cases such as this one which present hybrid challenges aimed both at the conditions of confinement and at the ultimate fact or level of confinement are difficult to classify, as they are neither traditional or “core” habeas claims nor straightforward conditions cases arising under 42 U.S.C. § 1983. However, neither the Supreme Court nor the First Circuit has categorically foreclosed petitioners like those before this Court from invoking federal habeas jurisdiction; indeed, both Courts have expressly declined to do so. E.g., Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973) (“This is not to say that habeas corpus may not also be available to challenge [unconstitutional] prison conditions.”); United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006) (“If the conditions of incarceration raise Eighth Amendment concerns, habeas corpus is available.”).
The petitioners have specifically alleged: “Under the current conditions at PCCF, Respondents have not and cannot protect Petitioners and the class from this risk of serious harm. In these circumstances, release is the only means of protecting Petitioners and the class they seek to represent from unconstitutional treatment.” Doc. No. 1 ¶ 131 (emphasis added). In light of this assertion, against the legal landscape outlined above, and in the extraordinary circumstances presented by the COVID-19 pandemic, the Court finds that the petitioners’ claims sound in habeas, and this Court has jurisdiction to consider them under § 2241. See Doc. No. 52 at 1 (concluding “that this action sounds, at least in part, in habeas”); see also Money v. Pritzker, --F.3d ----, 2020 WL 1820660, at *8-9 (N.D. Ill. Apr. 10, 2020) (discussing the difficulty in categorizing claims arising at “the intersection of habeas and civil rights” law, noting “the statues and case law [in that area] weave a thick and tangled web,” and addressing the constitutional claims presented under both rubrics); cf. Savino v. Souza, No. 20-cv-10617, ECF No. 175 (D. Mass. May 12, 2020) (reasoning that even if habeas relief were unavailable, “a cause of action
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for equitable relief relating to [the petitioners’] conditions of confinement is available wholly apart from habeas” where petitioners had filed action styled similarly to this one). Thus, Moniz’s second motion to dismiss (Doc. No. 39), pressing only this challenge, is DENIED.
Second, construing this action as one properly viewed through the lens of § 1983, Moniz urges that this Court lacks jurisdiction to enter an order that would have the effect of releasing any member(s) of the proposed class, citing a provision in the Prisoner Litigation Reform Act (“PLRA”) barring single district judges from entering such an order. Doc. No. 22 at 15-21 (citing 18 U.S.C. § 3626(a)(3)(B)). That prohibition, however, by its terms applies only in a “civil action in Federal court with respect to prison conditions.” § 3626(a)(3)(B). By definition, “habeas corpus proceedings challenging the fact or duration of confinement in prison” are excluded from the prohibition’s reach. § 3626(g)(2). As explained above, the Court has concluded that this action arises under § 2241 and is properly viewed, at least in part, as a challenge to the fact or duration of the petitioners’ confinement. This conclusion renders the PLRA’s provisions governing “prisoner release orders” inapplicable. In this case, as the petitioners have presented it, § 3626(a)(3)(B) does not limit this Court’s jurisdiction, which arises under § 2241.
Third, Moniz argues that the Court must dismiss this action because the petitioners have not exhausted their administrative remedies by filing prison grievances challenging the conditions described in their petition. Once again, this is an argument arising from a provision of the PLRA. See Doc. No. 22 at 25-28 (discussing the “PLRA’s mandatory exhaustion requirement” in 42 U.S.C. § 1997e(a) and the limited exceptions thereto). That provision, like the one governing “prisoner release orders,” does not apply here, where the action is appropriately construed as one arising under § 2241. As such, even assuming PCCF’s grievance
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procedures are “available” to this proposed class of petitioners and would reach the
constitutional claims they press here,4 the petitioners’ failure to satisfy the PLRA’s exhaustion
requirement is not grounds for dismissal of this habeas action.5
Finally, Moniz argues dismissal is required because he “lacks the authority to provide the
primary relief [the petitioners] seek in this lawsuit: their release from detention.” Doc. No. 22 at
28-30. This is not a basis for dismissal. As the petitioners’ immediate custodian, Moniz is the
appropriate respondent in an action brought under § 2241. Rumsfeld v. Padilla, 542 U.S. 426,
439 (2004). Moniz has cited no authority suggesting that, where § 2241 provides this Court with
jurisdiction to entertain a constitutional challenge to the fact or duration of a petitioner’s
confinement, this Court’s ability to order a remedy to any established constitutional violation is
nevertheless limited. Here, the alleged violations and the request for release relate to the
conditions of confinement at PCCF, and the petitioners seek either release in general, or release
to a different facility or a different form of custody (i.e., “enlargement”), for some class
4 Because this case arises under § 2241, the Court not resolve whether any administrative remedies truly are “available” to the petitioners and the specific challenges articulated in this case for purposes of § 1997e(a). See Doc. No. 22-1 at 8-9 (providing that grievances at PCCF may be filed only by individuals, not by groups or classes of detainees, and that any grievance form complaining about more than one condition or incident will not be accepted). 5 Though federal courts generally apply a “providential exhaustion requirement” to habeas claims brought under § 2241, this Court will not do so here. See Monahan v. Winn, 276 F. Supp. 2d 196, 204 (D. Mass. 2003) (finding PLRA exhaustion requirement did not apply to habeas action challenging Bureau of Prisons rule impacting execution of criminal sentences and declining to otherwise require exhaustion where it would be futile). This case arises from extraordinary circumstances and unprecedented public health risks, both in general and in the specific context of a prison setting. In addition, requiring each of the more than 160 federal detainees at PCCF to file a separate grievance for each condition at issue here (i.e., one challenging access to masks, one challenging access to soap, one challenging access to hand sanitizer, one challenging seating at meal times, one challenging cleaning of phones, one challenging lack of information about how to use masks, one challenging a particular guard’s failure to wear a mask at a particular time, one challenging proximity of bunks, and so on— multiplied by the number of proposed class members) would be so impractical as to render it futile.
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members. Moniz has identified no barrier to this Court awarding such relief, should the petitioners prevail in this action. Whether another party should enter this action in order to ensure any future order granting relief is effectuated (e.g., the Attorney General,6 to whose legal custody the class members are committed), and to what extent any relief should be tailored to avoid conflict with orders of detention issued by other District Judges (e.g., ordering transfer to a different facility instead of release on bail), are questions properly considered when considering the merits and tailoring relief on a complete factual record. They are not issues justifying dismissal.
In sum, none of the grounds Moniz cites in either of his motions provide a basis for wholesale dismissal of the petition at this stage. Accordingly, Moniz’s motions to dismiss (Doc. Nos. 21 and 39) are DENIED. II. INJUNCTIVE RELIEF
Having resolve the dismissal motions and found that § 2241 permits it to exercise jurisdiction in this matter, the Court turns next to the petitioners’ application for emergency injunctive relief. A summary of the evidence adduced by both parties and pertinent to the familiar factors guiding consideration of the petitioners’ application is necessary.
A. Relevant Facts At the time this action was filed, no detainee at PCCF had tested positive for COVID-19. One staff member had tested positive in March, three days after that person’s last shift at PCCF. Doc. No. 23-2 ¶ 25. Contact tracing was done by PCCF, confirming the person had not had close contact with any detainees during the relevant time period. Doc. No. 23-1 ¶ 8. Other staff
6 Notably, the Attorney General is present in the form of lawyers from the United States Attorney’s Office representing Moniz, although he is a county official. In response to an inquiry from the Court, those lawyers stated they perceived no conflict in the representation.
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members who did have close contact with the person were required to stay home and selfquarantine for fourteen days. Id.
The petition and the application for injunctive relief are supported by affidavits from two doctors specializing in infectious disease, one doctor who has worked in New York prisons, and five lawyers who represent current federal detainees at PCCF. Doc. Nos. 1-3, 1-4, 1-5, 1-8, 1-9, 1-10, 1-11, 1-12. The doctors speak generally about COVID-19 and more specifically about the risks it presents in a prison setting. None purport to have direct personal knowledge about PCCF and its current practices or responses to the pandemic. The lawyers describe telephone conversations they had with their clients in early and mid-April, including the four named petitioners and proposed class representatives, about the conditions they were experiencing at PCCF at the time of those conversations. According to the lawyers’ affidavits, some of their clients claimed not to have received face masks, some shared cells with multiple other detainees, some claimed not to have access to sufficient hygienic and cleaning supplies, and all described PCCF’s failure to enforce social distancing by staff and detainees.
In seeking dismissal and opposing the application for injunctive relief, Moniz submitted declarations of Plymouth County Sheriff Joseph McDonald, Jr.; PCCF’s medical director, Dr. Lawrence Baker; the Assistant Director of the United States Marshals Service’s Prisoner Operations Division, John P. Sheehan; and PCCF’s Health Services Administrator, nurse Marcia Norat. Doc. Nos. 22-1, 22-2, 22-3, 22-7. The declarations describe steps taken at PCCF in response to the COVID-19 pandemic, from the time Massachusetts declared a state of emergency on March 10, 2020 through the time the declarations were submitted on April 21, 2020. Measures taken included enhanced intake procedures to screen for exposure to the virus; a quarantine unit to monitor new detainees for fourteen days; suspension of in-person visits and
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off-site work details; exclusion of non-essential staff and volunteers; reduction of movement within PCCF and travel beyond the facility; changes to meal and recreation schedules to limit the number of detainees eating or using recreation space at a given time; daily temperature screenings for staff upon arrival; installation of hand sanitizer dispensers in housing units; cleaning of housing units multiple times each day; and distribution of surgical masks to detainees and staff. Doc. No. 22-1 ¶¶ 6, 13-14.
After reviewing both parties’ initial filings, the Court required Moniz to supplement his submissions with more information, which he supplied via new declarations by Sheriff McDonald and nurse Norat on April 24, 2020. Doc. No. 31. Those declarations described the criteria for and status of COVID-19 testing at PCCF as of that date, noted one named petitioner was housed in a dorm where the beds had been moved six feet apart, described another named petitioner’s cell arrangements and confirmed that the heads of the three occupied beds in his cell were more than six feet apart, listed three dates on which each detainee and each staff member received a face mask, described signs posted and other communications regarding social distancing, and provided photographs and diagrams confirming the referenced bed measurements and poster placement. Doc. No. 31-1, 31-4, 31-5, 31-6, 31-7.
Just before the scheduled hearing on the pending motions, Moniz notified the Court that two additional staff members and one state inmate at PCCF had just tested positive for COVID19. Doc. Nos. 48, 49. One staff member worked in PCCF’s booking unit, and the other transported immigration detainees among other facilities. Doc. No. 48. PCCF traced each staff member’s contact with other employees and detainees, then placed one state inmate in quarantine and required all identified employees to self-quarantine at home based on such contact. Id. The state inmate tested positive within a week of his arrival at PCCF and had been housed only in the
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booking unit and the intake quarantine unit. Doc. No. 49. He reported having had contact just before his arrest with individuals he later learned had tested positive for COVID-19. Id. He was tested upon reporting symptoms, was kept in isolation while the results were pending, and then was assigned to a negative pressure room when the positive result was reported. Id.
After the motion hearing, the Court ordered Moniz to respond to a list of additional questions about conditions at PCCF. Doc. No. 52. He did so on May 6, 2020, with a third set of declarations by Sheriff McDonald and nurse Norat. Doc. No. 54. Sheriff McDonald provided detailed information about the capacity, population, and sleeping arrangements in each unit housing any of the 164 federal detainees held at PCCF as of May 6th. Doc. No. 54-1 at 1. Like PCCF as a whole, each housing unit is significantly under capacity. Id. For each unit, Sheriff McDonald also described available seating arrangements at meal times and the areas accessible during recreation times. Id. at 1-3. He identified four dates in April on which each detainee and each staff member received a face mask, another date on which masks were distributed to managers of certain inmate work assignments, and three dates on which directives regarding the use of face masks were given to staff and/or detainees. Id. at 3. As of April 24, 2020, PCCF employees were “direct[ed] . . . to keep their masks on whenever they are within six feet of another person.” Id. According to Sheriff McDonald, PCCF had more than 10,000 extra masks available “to provide to staff and inmates for replacement” as needed and placed weekly orders for more. Id. at 3-4. The Sheriff also described cleaning procedures and the products used, cleaning and hygiene supplies available to detainees, and the nature of grievances PCCF had received that related to COVID-19. Id. at 4-6.
In her declaration, nurse Norat described the 107 test kids PCCF possessed, sixty-five of which she explained did not comply with state testing guidelines, and said PCCF can request and
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receive “up to 20 [additional] kits a day for a limited . . . purpose[] of outbreak management.” Doc. No. 54-2 at 1. She also described 107 sick call requests between March 10 and May 4, 2020, which resulted in nurses issuing cold or cough medication, and forty-eight more requests which nurses referred to medical providers for assessments and treatment. Id. at 1-2. According to nurse Norat, all COVID-19 “testing determinations were based on an objective assessment of the presence or absence of accompanying symptoms and the medical provider’s clinical judgment.” Id.
On May 7, 2020, the petitioners supplemented their previous submissions with a new set of affidavits of lawyers representing the four named petitioners and two other members of the proposed class, again relaying information about conditions at PCCF the lawyers learned in conversations with their clients. Doc. No. 56. In particular, one named petitioner disputed whether the bunks in his dorm had been moved six feet apart; others said there had been “no change” to meal times, and that meals were distributed by inmate workers who did not wear masks. Several said that detainees continued to sit close together at tables while eating after standing close together in line to collect their meals, and that PCCF was not encouraging or enforcing social distancing during meals and at recreation time. Some detainees said they had received fewer than four face masks, several described having received little to no information about how to use the face masks, and most asserted that PCCF staff did not consistently wear face masks while on duty. In addition, several detainees noted that the hand sanitizer available to them was alcohol-free (and, thus, ineffective), and some described instances in which requests for more soap or toilet paper were refused by guards. See id. at 2-4 (summarizing affidavits).
The day after the petitioners’ submission, Moniz sought to refute the factual claims described in the new set of lawyers’ affidavits with more affidavits of his own—this time, from
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four of PCCF’s Assistant Deputy Superintendents (“ADS”), each of whom conveyed information based on his personal knowledge and first-hand observations while working at the facility. Doc. No. 57. For example, an ADS who conducts daily rounds in several housing units observed consistent use of face masks by staff “when they are near the inmates,” described his own efforts to remind detainees he encounters about social distancing (the importance of which he described as “a well-known fact”), and said he has seen staff provide new masks to inmates upon request. Doc. No. 57-1. Another ADS described efforts to space chairs in housing unit day rooms apart from one another—and to prevent detainees from moving the chairs back together—as well as his own interactions with one named petitioner during which he reminded that petitioner and other detainees to distance themselves from one another. Doc. No. 57-2. That ADSD also said that after a disturbance in one housing unit including federal detainees, he “went cell-to-cell in the unit” on three consecutive days and “reinforced the rules of the unit, the importance of social distancing, [and] the importance of wearing masks in the dayroom.” Id.
A third ADS described a memorandum he sent to all corrections officers working in the units he supervises instructing them on various policies aimed at maintaining social distancing among detainees and at face mask usage. Doc. No. 57-3. He noted his own ongoing efforts to personally remind both detainees and staff about the need for social distancing, confirmed the housing arrangements for certain proposed class members, and disputed several specific assertions made in the attorneys’ affidavits submitted by the petitioners regarding conditions during meal and recreation times and usage of face masks by staff. Id. In addition, he stated that “unit workers” clean common areas in the housing units after lunch and between recreation periods, when one half of the detainees in the unit leave the area and before the other half enter it. Id. The fourth ADS “was directly involved with the distribution of masks to all inmates and
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detainees” on four occasions (essentially, weekly) in April, and again on May 8, 2020. Doc. No. 57-4. He also verified that he had personally spaced apart the bunks, using a tape measure to ensure six-foot separation, in one named petitioner’s dorm, and also had measured the distance from head-to-head of the beds in another named petitioner’s cell. Id. Finally, he described having reviewed security camera tapes to investigate claims made in one attorney’s affidavit about a detainee’s observation of unmasked guards during his telephone call with the attorney, and said that the footage showed only two officers—both wearing masks—were present during the call. Id. Each of the four ADSs stated that PCCF provided alcohol-free hand sanitizer due to security concerns arising from making an alcohol-based product available in a jail setting.
According to status reports filed by Moniz, three other Plymouth County Sheriff’s Office employees have tested positive for COVID-19: two who do not work at PCCF, and one who tested positive more than a week after last visiting PCCF. Doc. Nos. 53, 62. None had close contact with any PCCF detainee or staff. Id. As of May 12, 2020, a total of nineteen inmates and detainees at PCCF had been tested for COVID-19, with one state inmate testing positive and all other results being negative.7 Doc. No. 62.
B. Legal Analysis The Court considers petitioners’ request for injunctive relief using the familiar standard, weighing the following four factors: “(1) the [movant’s] likelihood of success on the merits; (2)
7 Though Moniz did not provide similar statistics for staff, the Court takes judicial notice that the most recent Special Master’s Weekly Report filed in Committee for Public Counsel Services v. Chief Justice of the Trial Court, No. SJC-12926, (“Special Master’s Report”) reflects that as of May 10, 2020, a total of seventeen tests had been performed of corrections officers and other staff at PCCF, with five of those individuals testing positive (presumably not reflecting the most recent positive result, disclosed in Moniz’s May 12, 2020 status report here). See App’x at 12, Special Master’s Report (May 11, 2020), available at https://www.mass.gov/doc/sjc-12926special-masters-weekly-report-51120/download (last visited May 14, 2020).
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the potential for irreparable harm if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court’s ruling on the public interest.” Charlesbank Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004). The First Circuit has called the first of those factors—the movant’s likelihood of success on the merits—“[t]he sine qua non of this four-part inquiry.” New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002); see Savino, ECF No. 175 at 11-12 (noting first two factors are the most important ones, and that they interact with one another, such that a greater likelihood of success on the merits allows for a lesser showing of irreparable harm, and vice versa). Failure to establish the primary factor of likelihood of success renders “the remaining factors . . . matters of idle curiosity.” New Comm Wireless Servs., 287 F.3d at 9.
The petitioners’ claims arise under the Fifth Amendment’s Due Process Clause (for those federal detainees who are awaiting trial) and the Eighth Amendment’s prohibition on cruel and unusual punishment (for those federal detainees who have been convicted but are awaiting sentencing, and those who have been sentenced but are awaiting transfer to a federal facility). Though the petitioners urge that the two Amendments require different legal standards, with pretrial detainees facing a less daunting test under the Fifth Amendment than the “deliberate indifference” showing required by the Eighth Amendment, the First Circuit has not endorsed such a view, so this Court may not do so either. As other sessions of this Court have explained, binding First Circuit precedent describes the two standards as “not all that far apart,” with both leaving “ample room for professional judgment, constraints presented by the institutional setting, and the need to give latitude to administrators who have to make difficult trade-offs as to risks and resources.” Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011); see Savino, ECF No. 175
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at 20-23 & n.16 (assessing Fifth Amendment claim of immigration detainees under “deliberate indifference” standard and discussing state of First Circuit decisions in this area); Couchon v. Cousins, No. 17-cv-10965, 2018 WL 4189694, at *6 (D. Mass. Aug. 31, 2018) (finding First Circuit precedent did not permit District Court to apply standard other than “deliberate indifference” to Fifth Amendment claim involving challenge to conditions of confinement).
Accordingly, all members of the proposed class, regardless which Amendment forms the basis for their habeas challenge to PCCF’s response to the COVID-19 pandemic, must establish that Moniz has acted “with deliberate indifference to a substantial risk of serious harm to health.” Coscia v. Town of Pembroke, 659 F.3d 37, 39 (1st Cir. 2011); accord Farmer v. Brennan, 511 U.S. 825, 835 (1994). This standard has a subjective component; to satisfy it, the petitioners “must provide evidence that the [respondent] had actual knowledge of impending harm, easily preventable, and yet failed to take the steps that would have easily prevented that harm.” Zingg v. Groblewski, 907 F.3d 630, 635 (1st Cir. 2018) (quotation marks and citation omitted). The requisite mental state is said to be “characterized by obduracy and wontonness, not inadvertence or error in good faith,” and “has been likened to . . . criminal recklessness.” Leite v. Bergeron, 911 F.3d 47, 52-53 (1st Cir. 2018) (quotation marks omitted); accord Whitley v. Albers, 475 U.S. 312, 319 (1986); Giroux v. Somerset Cty., 178 F.3d 28, 32 (1st Cir. 1999).8
There is, and can be, no meaningful dispute that COVID-19 presents a substantial risk of serious harm to health, to the proposed class of petitioners in this case as well as to members of
8 The Court’s conclusion would not change even if it were inclined to, and could, adopt the less stringent standard urged by the petitioners, as the present record does not establish that the petitioners are likely to succeed in showing that Moniz’s response to COVID-19 at PCCF has been objectively unreasonable. See Doc. No. 10 at 30-31 (listing cases from other jurisdictions applying an objective reasonableness standard to Fifth Amendment conditions-of-confinement claims).
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society at large. The petitioners here, however, have not established that they are likely to succeed in showing that Moniz has been obdurate, wonton, or reckless with respect to that risk, or has otherwise failed to take reasonable steps aimed at preventing or mitigating the risk that COVID-19 presents to those detained at PCCF. The Court reaches this conclusion having carefully considered all submissions and arguments by both parties, and especially considering three broad types of risk COVID-19 creates in a congregate setting like a prison: the danger that the virus will be brought into the setting; the risk that the virus will spread within the setting once there, and the need to monitor whether and to what extent the virus may be present in the setting.
First, according to the declarations submitted by Moniz, PCCF has adopted many measures and policies aimed at keeping COVID-19 from entering the facility. All detainees and inmates entering the facility are screened for symptoms, then held in individual cells in an intake quarantine unit for fourteen days. This applies both to detainees or inmates new to PCCF as well as to inmates or detainees returning to PCCF from any outside activity such as a court hearing or hospital examination. Doc. No. 22-1 at 3. Staff are encouraged to stay home if they are sick, temperatures are checked upon their arrival, and they have face masks they are required to wear while working if they are within six feet of others. Only essential people are permitted to enter PCCF, with all family and face-to-face legal visits suspended, as are programming run by outside volunteers and work details requiring detainees to leave the facility. Travel outside the facility has been limited, with most (if not all) court appearances occurring by video. Most of these facts are undisputed by the petitioners.9 On this record, the petitioners have not met their burden of
9 The only contrary evidence the petitioners have offered is the claim repeated in several of the attorneys’ affidavits that detainees have observed many employees not wearing masks. The petitioners have offered nothing contradicting the description of the intake and quarantine procedure, staff temperature checks, the elimination of visits and work by nonessential outsiders, and the severe reduction in travel by detainees outside PCCF.
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establishing that they are likely to succeed in showing that Moniz has been deliberately indifferent to the risk that COVID-19 will infiltrate PCCF.
Second, according to the declarations submitted by Moniz, PCCF has similarly undertaken meaningful actions aimed at controlling and mitigating against the spread of COVID19 within the facility. When a new inmate demonstrated symptoms, he was promptly tested and placed in isolation; upon learning the results of the test were positive, he was placed in a negative pressure cell. When staff members tested positive, efforts were made to identify those who had close contact with them—including, on multiple occasions, reviewing security camera footage to trace the person’s contacts—and steps were taken to quarantine the relevant people.
Face masks have been distributed to all detainees and staff on multiple occasions, with policies adopted requiring their use when detainees leave their housing units and when staff has close contact with detainees. The overall population of PCCF has been steadily declining since the beginning of April, and the proposed class has diminished in size as well.10 All housing units that include federal detainees are substantially under their capacity, and ninety-four proposed class members were housed in their own cells as of May 6, 2020. Doc. No. 54-1 at 1. The remaining seventy federal detainees are in shared cells or dorm units, but Moniz has offered
10 According to the Special Master’s Report, the population of PCCF was close to 800 at the beginning of April, and was 651 as of May 10, 2020. PCCF was designed to hold 1,250 inmates. Doc. No. 22-1 ¶ 7. According to uncontradicted information submitted by Moniz, there were 170 federal detainees at PCCF as of April 19, 2020, and 164 as of May 6, 2020. Doc. No. 22-3 ¶ 11; Doc. No. 54-1 at 1. The most recent set of affidavits Moniz submitted demonstrate that in just two days, between May 6 and May 8, 2020, the occupancy of the two large housing units at PCCF to which federal detainees are assigned (H1 and H3) decreased still further (from 65 to 62, and from 67 to 66, respectively). Compare Doc. No. 54-1 at 1 (65 men in unit H1 and 67 men in unit H3, both of which have a capacity of 139, on May 6th), with Doc. No. 57-2 ¶ 4 (66 men in H3 on May 8th), and Doc. No. 57-3 ¶ 4 (62 men in H1 on May 8th).
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diagrams and photographs demonstrating his efforts to ensure that all beds in such units have at least six feet of space between their heads.
A majority of the proposed class are in housing units where the detainees are split into two groups (roughly in half) for meal and recreation times, reducing the number of detainees using common spaces at any one time and providing more space in which detainees may spread out to eat and recreate. The recent affidavits of Moniz’s assistant deputies describe several of them making individual and direct efforts to remind detainees of the importance of social distancing and to encourage their compliance. In addition, at least one ADS specifically described cleaning procedures aimed at disinfecting the common areas after one group has used them and before another enters. Doc. No. 57-3 ¶ 11. Sheriff McDonald and his deputies have also described more general cleaning procedures that have been amplified in response to the pandemic, as well as the ways in which they make cleaning supplies available to detainees. In addition, overall movement within the facility has been minimized, apparently resulting in the detainees spending most of their time in their assigned housing units with the same group of men.
Though the petitioners dispute the particulars related to some of these areas,11 on the present record, they have not met their burden of establishing that they are likely to succeed in
11 For example, the lawyers’ affidavits submitted by the petitioners include varying statements about the number of masks they have received (though all concede having received at least one), claims by some named petitioners that their beds are not six feet from others (though Moniz’s documentation to the contrary is powerful evidence), and describe as many as thirty-five men eating meals together (though the large units, where there are enough detainees to make it possible for half of the group to total in the thirties, have enough tables and day room chairs to allow that number of men to spread out during meals, if they wished to do so). The petitioners have not sought to refute the overall capacity and population of each relevant housing unit or the manner in which PCCF responded when an inmate and several staff members tested positive for the virus, nor have they specifically disputed many of the cleaning practices described in Moniz’s submissions.
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showing that Moniz has been deliberately indifferent to the undeniable risk that COVID-19
could spread quickly and devastatingly within PCCF.
Third, according to the declarations submitted by Moniz, PCCF takes a number of steps
aimed at identifying detainees and staff who might be infected with COVID-19. Besides
performing temperature checks on staff when they arrive each day, Moniz has offered
declarations stating that PCCF’s medical staff received training on how to detect and treat
COVID-19, adopted testing criteria based on state and federal guidelines, and took steps to
identify and monitor detainees with known risk factors making them especially vulnerable to the
virus. Doc. Nos. 22-2, 22-7, 31-5. As of May 6, 2020, seventeen PCCF detainees and inmates had been tested for the virus.12 Doc. No. 54. Consistent with Dr. Baker’s earlier declaration and
federal guidance, nurse Norat described PCCF’s decisions about whether and when to test as
guided by the “clinical presentation” of the individual and “the medical provider’s clinical
judgment,” considering symptoms, their reported onset, and an objective assessment of the
detainee’s condition. Doc. No. 54-2. The petitioners have offered no evidence—medical or
otherwise—contradicting Moniz’s submissions as to these points or calling into question the reasonableness of the described approach.13 On this record, the petitioners have not met their
12 This number remained the same as of May 10, 2020, according to the most recent Special Master’s Report. 13 The parties have not discussed it, but the Court takes judicial notice of the fact that there presently is litigation pending before the Supreme Judicial Court (“SJC”) challenging conditions in facilities run by the Massachusetts Department of Corrections (“DOC”). Foster v. Mici, No. SJC-12935. Following a recent oral argument, the DOC submitted a letter responding to a series of questions posed by the SJC about matters at issue in that case. Supp. Citation of the Dep’t of Corr. (May 13, 2020), available at https://www.mass.gov/doc/sjc-12935-supplemental-citationof-the-department-of-correction (last visited May 15, 2020). On pages 7 and 8 of its May 13, 2020 letter, the DOC described its approach to COVID-19 testing in its facilities and how that approach has evolved since the state of emergency began in Massachusetts. Initially, its approach was the same as that employed by PCCF now: “consistent with CDC and DPH guidelines, testing was done per the protocol and medical judgment of the medical vendor at
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burden of establishing that they are likely to succeed in showing that Moniz has been
deliberately indifferent to the risk that would arise from a failure to identify PCCF detainees and
staff carrying the virus.
In sum, the petitioners have not established a likelihood of success on the merits of their
constitutional claims. This is so whether the three risk areas the Court has discussed are
considered separately or cumulatively. In light of this conclusion, the Court need not proceed to
the remaining prongs of the preliminary junction analysis. The Court notes that in reaching this
conclusion, the Court has not found—and does not believe—that a petitioner must be on the
precipice of serious illness or death in order to establish standing, substantial risk of serious harm
to health, a likelihood of irreparable harm, or a likelihood of success on the merits.
III. CONCLUSION
For the foregoing reasons, the respondent’s motions to dismiss (Doc. Nos. 21 and 39) and
the petitioners’ application for emergency injunctive relief (Doc. No. 9) are DENIED.
each facility and included inmates who were symptomatic, or non-symptomatic but a ‘close contact’ of anyone who tested positive.” By late April, though, perhaps in response to one or more outbreaks at DOC facilities, DOC gained access to “[l]arge-scale mobile testing,” and began offering “institution-wide testing” at facilities beginning on April 22, 2020. In the letter, DOC described its ongoing plan to offer such testing to every inmate and staff member at every DOC facility by May 31, 2020. The DOC also affirmed that “there is no shortage of tests available to” it.
The petitioners in this case have not suggested the Constitution requires institution-wide testing, nor have they asked for it. The Court highlights DOC’s approach to testing because it appears eminently sensible, and it shows that DOC’s response to this virus—like PCCF’s, in many ways—is something that necessarily is constantly evolving as more information and more resources become available. It also evidences a recognition that aggressive measures aimed at minimizing and preventing outbreaks are preferable to reactionary efforts to manage an outbreak after it has occurred. DOC may have learned that lesson the hard way. PCCF and other county facilities, most of which have testing rates similar to PCCF per the Special Master’s Report, would be wise to benefit from DOC’s experience as well as, if possible, gain access to either DOC’s testing resources or those available to the Attorney General.
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One further point bears mention. The law is clear and unequivocal in certain respects. “Prison officials must provide humane conditions of confinement, including adequate medical care.” Leite, 911 F.3d at 52 (quotation marks omitted); accord Farmer, 511 U.S. at 832. Each member of the putative class is in the legal custody of the Attorney General of the United States, who bears ultimate responsibility for their health and safety. 18 U.S.C. § 3142(i)(2). Court rulings requiring a showing of deliberate indifference to prevail on a constitutional claim, and procedural requirements such as exhaustion of administrative remedies before filing a section 1983 conditions claim, in no way dilute the legal and moral obligations borne by the Attorney General, PCCF, and other officials personally responsible for the health and safety of persons who are imprisoned in their custody. Rather, such rulings and requirements are jurisdictional means of allocating responsibility and oversight for the safety of persons in confinement and the operation of prisons.
On the record developed to date, the petitioners have not demonstrated they are likely to succeed on the merits of their claims. Nonetheless, the obligation the law imposes on Moniz remains unabated. His submissions reflect that he has adopted many reasonable policies and practices to protect the individuals working and imprisoned at PCCF. Less clear is whether and to what extent he is ensuring that such policies and practices are effectively and consistently implemented by those working for him. Moreover, nothing in the Court’s ruling endorses PCCF’s apparent failure to provide clear, detailed, institution-wide education about the risks of COVID-19 generally, the proper use of face masks, and the importance of social distancing. While posting signs and instructing staff to give direction during personal interactions with detainees is commendable, straightforward communication and regular access to accurate
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Case 1:20-cv-10753-LTS Document 64 Filed 05/18/20 Page 21 of 21 information are powerful antidotes to the anxiety and rumor likely to occur among people confined to a prison in the face of a fast-spreading virus.
* * * The Court anticipates resolving this petition expeditiously. No later than May 27, 2020, the parties shall file a joint status report stating their joint or separate positions regarding how, and on what schedule, this matter should proceed. In addition, Moniz shall file a status report, by the same date, explaining whether and how PCCF is expanding its testing in line with the institution-wide testing occurring in DOC facilities, and if not, why not.
SO ORDERED. /s/ Leo T. Sorokin United States District Judge
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 Case 1:20-cv-10753-LTS Document 23 Filed 04/21/20 Page 1 of 26

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ANTHONY BAEZ, JONATHAN BERMUDEZ )

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated,

)

)

Petitioners,

)

)

v.

)

)

ANTONE MONIZ,

)

)

Respondent.

)

Civil Action No. 20-10753-LTS
Leave To File Granted On April 21, 2020

RESPONDENT ANTONE MONIZ’S MEMORANDUM OF LAW IN OPPOSITION TO PETITIONERS’ APPLICATION FOR AN EMERGENCY TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION

Dated: April 21, 2020

ANDREW E. LELLING United States Attorney
JASON C. WEIDA Assistant U.S. Attorney
United States Attorney’s Office John Joseph Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, Massachusetts 02210 (617) 748-3180 jason.weida@usdoj.gov
Attorneys for the Government

Case 1:20-cv-10753-LTS Document 23 Filed 04/21/20 Page 2 of 26
Respondent Antone Moniz, Superintendent of the Plymouth County Correctional Facility (“Respondent”), respectfully submits this memorandum of law in opposition to Petitioner Anthony Baez’s (“Baez”), Petitioner Jonathan Bermudez’s (“Bermudez”), Petitioner Jermaine Gonsalves’s (“Gonsalves”), and Petitioner Dedrick Lindsey’s (“Lindsey,” and collectively, “Petitioners”) application for an emergency temporary restraining order and motion for preliminary injunction (“Petitioners’ motion”). Doc. # 9.
INTRODUCTION Petitioners are federal pretrial criminal detainees charged with serious drug and gun crimes. They challenge the conditions of their confinement at the Plymouth County Correctional Facility as inadequate to address the threat to health and safety posed by COVID-19. Rather than availing themselves of (or exhausting) the opportunities for seeking release in their respective criminal cases under the Bail Reform Act, Petitioners filed this civil action on behalf of themselves and a putative class seeking a highly extraordinary injunction that would require Respondent immediately to release some number of detainees, that would appoint an expert to recommend who and how many more detainees to release, and that would require this Court to function as a judicial monitor regarding the conditions of a state prison. Petitioners’ motion and the highly extraordinary injunctive relief it seeks must be denied for the following multiple independent reasons. First, Petitioner’s motion for injunctive relief must be denied for the reasons described in Respondent’s motion to deny the Petition, filed earlier today. Those reasons include: (1) this Court lacks subject matter jurisdiction under the Prison Litigation Reform Act; (2) Petitioners lack standing; and (3) Petitioners failed to exhaust administrative remedies, contrary to the Prison Litigation Reform Act’s mandatory exhaustion requirements. Second, Petitioners have an adequate remedy at law because are free at any time to
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seek release due to the threat to health and safety posed by COVID-19 by moving before the judge assigned to their criminal cases under the traditional remedies afforded to criminal defendant in the Bail Reform Act. 18 U.S.C. § 3142. Third, the requested relief offends principles of comity because, at bottom, Petitioners are asking this Court to interfere with the operations of other sessions of this district court where Petitioners’ criminal cases are pending. Finally, Petitioners have not satisfied the necessary elements of the injunctive relief they seek. They have not shown that they are likely to succeed on the merits of their Fifth Amendment or Eighth Amendment claims, or that the highly extraordinary injunctive relief they seek has any basis in law. Nor have they shown that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, or that the injunction they seek is in the public interest.
For these and other reasons discussed below, the Court should deny Petitioners’ motion. BACKGROUND
A. COVID-19 In Massachusetts. On March 10, 2020, Governor Charlie Baker declared a state of emergency in
Massachusetts based on the 2019 novel Coronavirus (“COVID-19”) that originated in Wuhan, China.1 As of April 20, 2020, there are 38,077 cases of COVID-19.2 Of those 38,077 cases of COVID-19 in Massachusetts, 2,832 cases are in Plymouth County.3 The population of Plymouth County is around 521,202.4 Based on those figures, about half of one percent of the population in
1 See https://www.mass.gov/executive-orders/no-591-declaration-of-a-state-of-emergency -to-respond-to-covid-19 (last visited Apr. 20, 2020).
2 See https://www.mass.gov/doc/covid-19-cases-in-massachusetts-as-of-april-19-2020/ download (last visited Apr. 20, 2020).
3 See id. 4 See https://www.census.gov/quickfacts/plymouthcountymassachusetts (last visited Apr. 20, 2020) (estimate dated July 1, 2019).
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Plymouth County has COVID-19 (2,832 out of 521,202). The Town of Plymouth, where the Plymouth County Correctional Facility (“PCCF”) is located, has 108 cases of COVID-19.5 With a population of 60,803,6 less than 2/10th of one percent of the population of the Town of Plymouth has COVID-19 (108 out of 60,803). B. Efforts To Prevent Exposure To COVID-19
At The Plymouth County Correctional Facility. PCCF is a correctional facility that houses inmates and detainees, including federal pretrial criminal detainees like Petitioners here. The Plymouth County Sheriff’s Department (“Department”) operates the PCCF. See Decl. of Joseph D. McDonald, Jr., attached as Exhibit A hereto, ¶ 2. The Department has a contract with the Correctional Psychiatric Services (“CPS”) to provide comprehensive medical services to inmates and detainees at the PCCF. See Decl. of Lawrence Baker, M.D., attached as Exhibit B hereto, ¶ 1. The Department and CPS provide services to Petitioners pursuant to an Inter-Governmental Service Agreement (“IGSA”) with the U.S. Marshals Service (“USMS”). See Decl. of John Sheehan, attached as Exhibit C hereto. As described below, all three entities—the Department, CPS, and USMS—have endeavored and, indeed, succeeded through the present time to prevent exposure to inmates and detainees at PCCF. 1. The Plymouth County Sheriff’s Department Has Instituted Protocols At The
Plymouth County Correctional Facility To Prevent Exposure to COVID-19. Since the onset of COVID-19, the Department has instituted strict protocols at PCCF to prevent exposure to inmates and detainees. Ex. A ¶ 6. Those protocols include the following:
• Beginning in February, the Department enhanced its inmate intake procedure to obtain additional information about travel and exposure to illness. Id.
5 See https://www.mass.gov/info-details/covid-19-cases-quarantine-and-monitoring# covid-19-cases-in-massachusetts (last visited Apr. 20, 2020) (link to Word document on webpage).
6 See https://www.census.gov/quickfacts/plymouthtownplymouthcountymassachusetts (last visited Apr. 20, 2020) (estimate dated July 1, 2018).
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• The Department has adopted treatment and detection practices consistent with guidelines from the CDC and DPH. The Department’s health services administrator is in frequent contact with DPH and consults them on the challenges facing the Department. Id.
• The Department suspended visits by friends, families, and volunteers. To assist with the transition, the Department arranged with its telephone vendors to provide two free calls per week. Id.
• The Department restricted attorney visits to non-contact. The Department disabled monitoring and recording functions for visit phones. Id.
• The Department has kept non-essential staff from entering PCCF, consistent with the governor’s order for executive staff. Id.
• The Department has ceased inmate assignments to the farm operation, community work crew, and other work details outside PCCF. Id.
• The Department has eliminated unnecessary movement within PCCF. Id.
• The Department established a housing unit for newly admitted inmates and inmates who leave and return to PCCF, to monitor for signs and symptoms of the virus. Inmates remain in the unit until they clear the incubation period. Id.
• The Department has worked with Trial Court officials to limit travel outside PCCF by conducting hearings by videoconference and telephone. This greatly has reduced travel to and from PCCF and resulting potential exposure. Id.
• The Department has changed recreation and meal schedules to provide more space in the dayrooms. Inmates and detainees in standard large and small housing units have split recreation schedules so that approximately half are permitted access to the day room at one time. The inmates and detainees have split meal periods, as well. Id.
• The Department maintains an aggressive cleaning schedule for the housing units and conducts daily sanitation of transportation vans. Id.
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• The Department has educated staff and inmates on sanitation practices and proper social distancing. The Department provides soap to the inmates and detainees weekly and as needed. The Department also provides cleaning supplies. Id.
• The Department conducts temperature screenings for all employees, contractors, and visitors to PCCF. Id.
• The Department has provided surgical masks for all PCCF staff and inmates. The Department encourages all staff to wear masks while on duty. The Department encourages inmates to wear masks while out of their cells and requires them to wear masks while working or when leaving the housing unit. Id.
• The Department has installed hand sanitizer dispensers in every housing unit. Id.
2. Correctional Psychiatric Services Deployed Clinical Guidelines To Prevent Exposure to COVID-19 At The Plymouth County Correctional Facility.
In addition to the Department’s protocols described above, CPS deployed a set of clinical
guidelines, titled CPS Clinical Guideline for COVID-19/CORONAVIRUS (“CPS Clinical
Guideline”), to educate and guide CPS staff, including the seven fulltime staff members at PCCF.7
Ex. B ¶¶ 6, 8. “The CPS Clinical Guideline follows the most recent guidance pertaining to
correctional and detention facilities from the Centers for Disease Control and U.S. Immigration
and Customs Enforcement, as well as recommendations from the Massachusetts Department of
Public Health and the World Health Organization.” Id. ¶ 8.
Among other things, the CPS Clinical Guideline provides as follows:
• The CPS Clinical Guideline lists the possible symptoms of a COVID-19 infection and states that upon identification of any of those symptoms (i.e., fever, cough, shortness of breath, loss of smell or taste, sore throat, tiredness, or diarrhea) the patient should immediately be masked. Id. ¶ 9.
7 Note that these seven fulltime CPS staff members at PCCF are in addition to “[t]he Department’s nursing staff,” which “consists of 21 full-time employees plus a nursing supervising lieutenant.” Ex. A ¶ 3.
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• The CPS Clinical Guideline provides that if a patient presents with fever and any other symptoms then the medical staff is to perform a rapid test for Influenza A and B. If the influenza test is negative, then medical staff is to test for COVID-19. If a COVID-19 test is positive, then staff are instructed to monitor vital signs, especially temperature and oxygen saturation twice a day; offer acetaminophen 650 mg. twice per day or as needed for coronavirus symptoms for one week; monitor the patient’s respiratory status to include oxygen saturation, trouble breathing, persistent chest pain or pressure, new onset of confusion or inability to arouse and any signs of cyanosis, and nurses are to notify the on-call doctor immediately if any symptoms are present and discuss possible transport to the local emergency room; and restrict patient movement unless emergent for anyone in isolation. Any movement while in isolation requires that staff wear a mask with shield, gloves and gown. Id. ¶ 10.
• The CPS Clinical Guideline also provides for the medical isolation of a patient with suspected COVID-19 infection be maintained until all the following criteria have been met:
a. For individuals who will be tested to determine if they are still contagious: the individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND the individual’s other symptoms have improved (e.g., cough, shortness of breath) AND the individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart.
b. For individuals who will NOT be tested to determine if they are still contagious: the individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND the individual’s other symptoms have improved (e.g., cough, shortness of breath) AND at least 7 days have passed since the first symptoms appeared.
c. For individuals who had a confirmed positive COVID-19 test but never showed symptoms: At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND the individual has had no subsequent illness.
Id. ¶ 11.
• The CPS Clinical Guideline provides for restriction of patients from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care,
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infection control, lack of medical isolation space, or extenuating security concerns. Id. ¶ 12.
In addition to the CPS Clinical Guideline, CPS has taken the following steps:
• New Detainee Screening. Upon receiving a new detainee/inmate, medical staff screen the individuals for signs and symptoms of infection. This includes event travel history, temperature checks, taking a recent medical history and observing the individual for any signs of sickness. If an individual appears symptomatic on admission a mask is applied immediately, the individual is placed in isolation and clinical care guidelines are followed (as outlined above) thereafter. Id. ¶ 18.
• Detainee Education and Monitoring. Nursing staff have also been instructed to use any detainee/inmate interaction as a time to educate the detainee/inmate regarding COVID-19, including that all inmates need to wash their hands frequently, avoid crowds and stay apart at least six feet whenever possible, and to report any shortness of breath or concerns of fever immediately to either nursing or security. Additionally, signs have been posted in all units in English, Spanish, Portuguese and Chinese, indicating that if a detainee/inmate feels sick, they should notify medical staff and have a mask applied immediately. Detainees and inmates are also being educated during medical encounters on the signs and symptoms of a COVID-19 infection. Id. ¶¶ 16-17.
• Monitoring of Vulnerable Detainees. CPS staff are monitoring and reviewing all detainees and inmates who are known to have chronic disease or other co-morbidities which would make them more susceptible to a COVID-19 infection. Id. ¶ 20.
• Staff Training and Supplies. COVID-19 health information has been posted in all units and visiting areas. Staff have access to CDC materials, including posting the link/url for the CDC website on all medical area computer equipment. A training website for CPS medical staff has been developed as well as a COVID-19 power point. Staff have access to masks, disinfectant/sanitizer and other personal protective equipment. Id. ¶ 15.
• Staff Precautions. CPS also is taking steps to ensure that staff do not inadvertently introduce COVID-19 into the facility by educating staff and screening them for raised temperatures or other signs of illness. Staff have been instructed not to work if they feel ill and to report any symptoms for follow up. Staff have also been educated
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regarding both their own protection as well as CDC guidelines for eliminating virus transmission. Id. ¶ 19. 3. USMS Works Closely With The Plymouth County Correctional Facility To Attend To The Medical Needs Of Pretrial Detainees In USMS Custody. In addition to the above steps taken by the Department and CPS, USMS itself provides monitoring and guidance to the medical staff at PCCF. Specifically, USMS employs U.S. Public Health Service (“PHS”) personnel—including physicians, physician assistants, and nurses—to oversee and manage its prisoner medical program. Ex. C. ¶ 7. The PHS staff work closely with medical personnel at the IGA facilities, like PCCF, to attend to the medical needs of USMS prisoners, like Petitioners. Id. ¶ 7. C. The Lack of Any COVID-19 Case Among Inmates And Detainees At The Plymouth County Correctional Facility. There is not currently, and has never been, a case of COVID-19 in the inmate and detainee population at PCCF. Ex. A ¶ 7; Ex. B. ¶ 24; Ex. C ¶ 11. There has been one case of COVID-19 of a PCCF staff member. Ex. A ¶ 8; Ex. B. ¶ 25. That individual’s last day at PCCF was March 19, 2020. The individual did not have close contact with any inmates or detainees. Ex. A ¶ 8; Ex. B. ¶ 25. The staff members that had close contact with that individual were sent home and were not permitted to return to PCCF for at least 14 days. Ex. A ¶ 8; Ex. B. ¶ 25. To date, that is the only case of COVID-19 at PCCF. Ex. A ¶¶ 7-8; Ex. B. ¶¶ 24-25. D. Pending Criminal Cases Against Petitioners. 1. Anthony Baez. In November 2019, Baez was indicted for an array for serious drug crimes, including conspiracy to distribute large amounts of fentanyl. See Doc. # 1, United States v. Baez, No. 4:19cr-40049 (D. Mass.) (Hillman, J.) (charging conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine, 400 grams or more of fentanyl, 100 grams or more of
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heroin, and 28 grams or more of cocaine base; distribution of 40 grams or more of fentanyl and heroin, and aiding and abetting; distribution of 100 grams or more of heroin and 40 grams or more of fentanyl, and aiding and abetting; and distribution of 400 grams or more of fentanyl and 100 grams or more of heroin, and cocaine, and aiding and abetting)
On April 6, 2020, Baez moved for release based on the conditions of his confinement at PCCF and the threat to health and safety posed by COVID-19. See Doc. # 93, Baez, No. 4:19-cr40049. On April 10, 2020, based on an individualized inquiry, Magistrate Judge Kelley denied his motion and entered an order of detention. See Doc. # 93, Baez, No. 4:19-cr-40049 (“The court is aware of the covid-19 pandemic and the problems it poses for the safety of those who are incarcerated. In addition, Mr. Baez’s four children are in the care of his mother who is reportedly overwhelmed and could use his help caring for the children. The court is very sympathetic to these concerns but is also obligated to take into consideration the risks posed to public safety of those who make a living by selling illegal drugs that endanger others’ lives, and who seem not to be deterred by being arrested and punished for it.”).
2. Jonathan Bermudez. In April 2019, Bermudez, who has a prior conviction for assaulting a pregnant woman, also was indicted for serious drug crimes, including conspiracy to distribute large amounts of fentanyl. See Doc. # 1, United States v. Bermudez, No. 1:19-cr-10180 (D. Mass.) (Sorokin, J.) (charging conspiracy to distribute and possess with intent to distribute 400 grams or more of fentanyl and distribution of 40 grams or more of fentanyl). On April 2, 2020, Bermudez moved, on an emergency basis, for release based on the conditions of his confinement at PCCF and the threat to health and safety posed by COVID-19. See Doc. # 109, Bermudez, No. 1:19-cr-10180. On April 8, 2020, after the government responded,
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this Court referred the motion to Magistrate Judge Dein. See Doc. # 113, Bermudez, No. 1:19-cr10180. As of April 21, 2020, at the time of filing, Bermudez’s emergency motion remains pending.
3. Jermaine Gonsalves. In October 2018, Gonsalves, a career offender with multiple state and federal convictions, also was indicted for, among other things, conspiracy to distribute large amounts of fentanyl. See Doc. # 1, United States v. Gonsalves, No. 1:18-cr-10468 (D. Mass.) (Gorton, J.) (charging conspiracy to distribute and possess with intent to distribute 400 grams or more of fentanyl and 100 or more grams of heroin). On March 31, 2020, Gonsalves moved for release based on the conditions of his confinement at PCCF and the threat to health and safety posed by COVID-19. See Doc. # 381, Gonsalves, No. 1:18-cr-10468. On April 16, 2020, following a hearing and based on an individualized inquiry, Magistrate Judge Bowler denied his motion and reaffirmed her earlier finding that detention was warranted, but did so “without prejudice to renew if there is a change in circumstances.” See Doc. # 396, Gonsalves, No. 1:18-cr-10468 (“As to the defendants new arguments for release based on the Covid-19 outbreak, this court finds the defendant did not present any special or extraordinary circumstances. Defendant’s motion raises systematic and not particularized concerns regarding the institution where he is being held. He does not set forth any specific medical conditions that would make him more vulnerable or more at risk than other detainees at the institution. Therefore, this court finds that release is not warranted at this time. The motion is DENIED without prejudice to renew if there is a change in circumstances.”). 4. Dedrick Lindsey. In March 2019, Lindsey, who has a long criminal history with multiple state convictions for serious drug and gun crimes (many of which serve as Armed Career Criminal predicates that
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subject him to a fifteen-year mandatory minimum sentence), was indicted for being a felon in possession. See Doc. # 1, United States v. Lindsey, No. 1:19-cr-10091 (D. Mass.) (Wolf, J.).
Unlike the other Petitioners, on April 3, 2019, Lindsey waived his detention hearing and requested a voluntary order of detention. See Doc. # 13, Lindsey, No. 1:19-cr-10091. On April 4, 2019, based on Lindsey’s waiver and request, Magistrate Judge Dein entered an order of detention. See Doc. # 15, Lindsey, No. 1:19-cr-10091. Also unlike the other Petitioners, Lindsey has not sought his release on the conditions of his confinement at PCCF or the threat to health and safety posed by COVID-19. See generally Lindsey, No. 1:19-cr-10091. E. Petitioners’ Detention at Plymouth County Correctional Facility.
Each of the Petitioners is detained at PCCF. “Baez is assigned to Unit DS1, a small housing unit with a capacity of 62. As of April 20, the population of the unit was 34. The inmate roster reflects that Baez was assigned to a five-man cell with two other inmates on that date.” Ex. A ¶ 9. “Bermudez is assigned to Unit H3, a large unit with a capacity of 139. As of April 20, the population of the unit was 74. The inmate roster reflects that Bermudez was in a cell by himself on that date.” Id. ¶ 10. “Gonsalves is assigned to Unit H1, a large unit with a capacity of 139. As of April 20, the population of the unit was 68. The inmate roster reflects that Gonsalves was in a cell by himself on that date.” Id. ¶ 11. “Lindsey is assigned to Unit BS1, a dormitory unit with a capacity of 60. As of April 20, the population of the unit was 10.” Id. ¶ 12.
When Petitioners are in the common areas of their respective units, such as during recreation and meals, the Department takes a variety of precautions. For example:
• Social Distancing in Common Areas. To permit and encourage social distancing, the security staff spread out the day room chairs in the units. The Department conducts split recreation in the standard large and small units, with each side (in the large units) or each tier (in the small units) of the unit entering the day room at different times. The split recreation periods provide much more
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space in the day room and offer significant opportunity for social distancing. The Department similarly provides meals for each portion of the large and small units at different times. This provides detainees multiple seating options which provide significant opportunity for social distancing. The inmates in the dormitory units continue to recreate and eat together. Id. ¶ 10.
• Sanitation. Multiple times each day, unit workers sanitize the units. Workers clean all tables, phones, day room chairs, showers, and cell door handles with 100 product multi-use disinfectant 256. Laundry workers clean all mop heads and cleaning rags every morning. Maintenance officers regularly use Virex spray to disinfect showers, day room chairs, tables, phones, all door handles, and railings in the morning before recreation periods begin. A cleaning crew cleans all visit rooms and sally ports with Virex fogging spray. Id. ¶ 11.
• Sanitary Supplies. The Department provides the detainees antibacterial soap weekly and as needed and provides the detainees the cleaning supplies they need. The Department provides toilet paper weekly and as needed. The detainees have access to the 100 product disinfectant to clean their cells. Unit workers have access to nitrex gloves for their assignments, and all inmates have access to plastic gloves at the officer panel for cleaning. The Department runs a laundry unit to keep clothing clean. Id.
F. The Petition In This Case.
In the Petition, Petitioners, on behalf of themselves and a putative class of all federal
pretrial criminal detainee at PCCF (which they estimate to be about 150 detainees), challenge the
conditions of their confinement at PCCF as inadequate to address the threat to health and safety
posed by COVID-19. Doc. # 1 ¶ 1. According to Petitioners, those conditions violate the Fifth
Amendment, id. ¶¶ 150-62 (First Cause of Action), and the Eighth Amendment, id. ¶¶ 163-78
(Second Cause of Action), and require the following relief:
• an injunction that would “[r]equire Respondents to immediately take all actions to reduce the federal detainee population at PCCF by releasing a sufficient number of federal detainees from the facility in order to ensure the health and safety of all members of the Class,” id. at 39 (section B.1 of the prayer for relief);
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• the appointment of “an expert under Federal Rule of Evidence 706 to make recommendations to the Court regarding how many and which class members to order released,” id. at 39 (section B.2 of the prayer for relief); and
• judicial monitoring of PCCF to ensure that the conditions of Petitioners’ confinement comply with the recommendations of their experts, id. at 40 (section B.4-7 of the prayer for relief).
The same day they filed the Petition, Petitioners filed their motion seeking the above injunction.
Doc. # 9. This timely opposition followed.
ARGUMENT
I. PETITIONERS’ MOTION MUST BE DENIED FOR THE REASONS DESCRIBED IN RESPONDENT’S MOTION TO DENY THE PETITION.
As an initial matter, Petitioner’s motion for injunctive relief must be denied for the reasons
described in Respondent’s motion to deny the Petition, filed earlier today. Those reasons include:
• First, this Court lacks subject matter jurisdiction under the Prison Litigation Reform Act, which places strict limits on a district court’s ability to order the release of inmates and expressly precludes a single district judge from doing so. 18 U.S.C. § 3626(a)(3); Money v. Pritzker, No. 20-cv-2093, 2020 WL 1820660, at *1, 13 (N.D. Ill. April 10, 2020) (recognizing that, although “the issue of inmate health and safety is deserving of the highest degree of attention,” an “order imposing a court-ordered and court-managed ‘process’ for determining who should be released” from a state prison in response to the COVID-19 pandemic falls “squarely within Section 3626(a)(3)—which forbids this Court from granting it”).
• Second, Petitioners lack standing because they cannot establish either injury in fact or redressability. Specifically, the site-specific circumstances in this case—(1) that there are zero cases of COVID19 in the detainee population, (2) that a staff member tested positive for in mid-March and yet there are still no cases of COVID-19 in the detainee population as of April 20, (3) that units housing Petitioners are well under capacity and, indeed, two of the Petitioners have their own cells, (4) that Respondent takes a variety of precautions that reasonably provide for adequate social distancing when Petitioners are in common areas, and (5) that Petitioners do not have any medical conditions that present a higher risk for COVID-19—demonstrate that Petitioners’ alleged injury is speculative and will not be redressed by ordering their release.
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• Third, Petitioners failed to exhaust administrative remedies—and, indeed, did not even attempt to file an emergency grievance—before filing this case, contrary to the Prison Litigation Reform Act’s mandatory exhaustion requirements. 42 U.S.C. § 1997e(a).
For all of the above reasons, or any one of them, this Court must deny the highly extraordinary injunctive relief Petitioners request here. II. PETITIONERS’ MOTION SHOULD BE DENIED BECAUSE PLAINTIFF HAS
AN ADEQUATE REMEDY AT LAW, FORECLOSING INJUNCTIVE RELIEF. Independently, Petitioners’ motion should be denied because he have an adequate remedy at law. See Porto Rico Tel. Co. v. Puerto Rico Commc’ns Auth., 189 F.2d 39, 41 (1st Cir. 1951) (applying the rule to injunctions); El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 493, 497 (1st Cir. 1992) (applying “traditional principles of equity jurisprudence,” including availability of adequate remedy at law, to declaratory judgment action where relief sought was “equitable in nature”). The Bail Reform Act (“BRA”) expressly allows district courts to consider an individual defendant’s health when deciding whether to detain him or her pending trial. In addition to the standard motions for release by pretrial defendants, 18 U.S.C. § 3142(b), or for post-conviction release, 18 U.S.C. § 3143, or bail pending appeal, 18 U.S.C. § 3143(b)(1), a defendant may seek release under 18 U.S.C. § 3142(i), which provides that a “judicial officer may, by subsequent order, permit the temporary release of [a] person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person’s defense or for another compelling reason.” Moreover, the Attorney General recently has issued guidance to federal prosecutors concerning “Litigating Pre-Trial Detention Issues During the COVID-19 Pandemic.” See Attorney General Barr Mem., dated Apr. 6, 2020, attached as Exhibit D hereto. The Attorney General’s April 6 Memorandum makes clear that “the current COVID-19 pandemic requires that [prosecutors] ensure [they] are giving appropriate weight to the potential risks facing certain
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individual from being remanded to . . . custody.” Id. Thus, although the Department’s “paramount obligation” is to “[p]rotect[ ] the public,” prosecutors must also “consider the medical risks associated with individuals being remanded into . . . custody during the COVID-19 pandemic.” Id. at 1-2. Prosecutors “should consider not seeking detention to the same degree [they] would under normal circumstances,” and must weigh “the risk of flight and seriousness of the offense . . .against the defendant’s vulnerability to COVID-19.” Id. at 2. Likewise, “these same considerations should govern [prosecutors’] litigation of motions filed by detained defendants seeking release in light of the pandemic.” Id. Such a defendant’s “risk from COVID-19 should be a significant factor in [each prosecutor’s] analysis[.]” Id.
Here, Petitioners are free to seek release due to the threat to health and safety posed by COVID-19 at any time by moving before the judge who is assigned to the detainee’s criminal case. Indeed, various applications of this type have already been made in this district. E.g., Doc. # 568, United States v. Nia-Bush Moore, No. 18-CR-30001 (D. Mass.) (Young, J.) (denying pretrial detainee’s motion for release due to COVID-19 because her particular medical conditions were likely more safely managed by prison medical staff than in community given her history of noncompliance). Because Petitioners have multiple opportunities to seek release based on the BRA’s robust statutory scheme, the highly extraordinary injunctive relief they seek here is foreclosed. E.g., El Dia, Inc., 963 F.2d at 497; Porto Rico Tel. Co., 189 F.2d at 41. III. PETITIONERS’ MOTION SHOULD BE DENIED BECAUSE THE RELIEF
THEY SEEK OFFENDS PRINCIPLES OF COMITY BY INTERFERRING WITH THE OPERATIONS OF OTHER SESSISIONS OF THIS COURT. Similarly, the Court should decline to allow the highly extraordinary equitable relief Petitioners seek here based on principles of comity. See Coors Brewing Co. v. Mendez-Torres, 678 F.3d 15, 28 (1st Cir. 2012) (“Comity is a doctrine of equitable restraint[.]”). “When an injunction sought in one federal proceeding would interfere with another federal proceeding,
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considerations of comity require more than the usual measure of restraint, and such injunctions should be granted only in the most unusual cases.” Bergh v. State of Wash., 535 F.2d 505, 507 (9th Cir. 1976); see CitiFinancial Corp. v. Harrison, 453 F.3d 245, 251 (5th Cir. 2006) (“[O]ne district court judge, whether as a matter of respect and institutional orderliness, if not jurisdiction, should shy from involvement in a case proceeding before another Article III judge.”). Exercising restraint in cases involving courts of coordinate jurisdiction “keeps to a minimum the conflicts between courts administering the same law, conserves judicial time and expense, and has a salutary effect upon the prompt and efficient administration of justice.” Brittingham v. U.S. Comm’r of Int. Rev., 451 F.2d 315, 318 (5th Cir. 1971).
At bottom, Petitioners are asking this Court to take the extraordinary step of interfering with the operations of other sessions of this district court where Petitioners’ criminal cases are pending.8 Abiding by Congress’s statutory scheme in the BRA avoids the comity problems that Petitioners’ motion raises. Because courts should avoid comity problems when possible, this Court should deny Plaintiff’s motion. E.g., Coors Brewing Co., 678 F.3d at 28. IV. PETITIONERS’ MOTION SHOULD BE DENIED
BECAUSE THEY HAVE NOT SATISFIED THE ELEMENTS NECESSARY TO OBTAIN THE INJUNCTIVE RELIEF THEY SEEK. If Petitioners were able to overcome all three of the above barriers to injunctive relief (and they cannot), their motion still should be denied for failure to satisfy the necessary elements of the injunctive relief they seek. “The same four-factor test for preliminary injunctions also has been
8 With the possible exception of Bermudez, whose bail application currently is pending before Magistrate Judge Dein following this Court’s referral of the motion. See Doc. # 113, Bermudez, No. 1:19-cr-10180. But even with Bermudez, he has not yet exhausted the relief available to him under the BRA. Indeed, given the multiple opportunities for seeking bail and reconsideration of bail determinations under the BRA, none of the Petitioners has yet exhausted those traditional remedies afforded to criminal defendants.
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extended to temporary restraining orders.” Asadoorian v. Travis, No. 11-10963, 2011 WL 2224984, at *1 (D. Mass. June 7, 2011). “A preliminary injunction is an ‘extraordinary and drastic remedy,’” Munaf v. Geren, 553 U.S. 674, 689–90 (2008) (quoting 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE AND PROCEDURE § 2948, at 129 (2d ed. 1995), that “is never awarded as of right.” Id. at 690. “A plaintiff seeking a preliminary injunction must establish that [1] he is likely to succeed on the merits, that [2] he is likely to suffer irreparable harm in the absence of preliminary relief, that [3] the balance of equities tips in his favor, and that [4] an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). To warrant the more extraordinary relief of a temporary restraining order, however, Petitioners must demonstrate that their injury is “immediate and irreparable.” Fed. R. Civ. P. 65(b). Plaintiff cannot satisfy any of these dispositive elements.
A. Petitioners Have Not Shown That They Are Likely To Succeed On The Merits Of Their Claims Against Respondent.
“The sine qua non of this four-part inquiry is likelihood of success on the merits.” Esso Standard Oil Co. (Puerto Rico) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006) (quoting New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002)). “[I]f the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.” Id.; see also Arborjet, Inc. v. Rainbow Treecare Sci. Advancements, Inc., 794 F.3d 168, 173 (1st Cir. 2015) (same); Perez-Kudzma v. United States, No. 17-11877, 2017 WL 6209190, at *1 (D. Mass. Dec. 8, 2017) (same). Here, Petitioners cannot show that they is likely to succeed on the merits of their claims against Respondent.
1. Petitioners Have Not Shown A Fifth Amendment Violation. Petitioners allege that the conditions of their confinement at PCCF violate the Fifth Amendment. See Doc. # 1 ¶¶ 150-62 (First Cause of Action). To evaluate the constitutionality of
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a pretrial detention condition under the Fifth Amendment, a district court must determine whether those conditions “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). Punishment may be shown through an express intent to punish or a restriction or condition that “is not reasonably related to a legitimate governmental objective.” Id. at 539; see also Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473-74 (2015) (clarifying that “a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose”). In addition, “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989).
Petitioners do not allege an express intent to punish them. See generally Doc. # 1. Nor do they challenge the general propositions that the government “may permissibly detain a person suspected of committing a crime prior to a formal adjudication of guilt,” Bell, 441 U.S. at 534, and that the government “has a substantial interest in ensuring that persons accused of crimes are available for trials and, ultimately, for service of their sentences, or that confinement of such persons pending trial is a legitimate means of furthering that interest,” id. Thus, Petitioners may succeed on their Fifth Amendment claim only if their confinement is not reasonably related to a legitimate governmental objective or is excessive in relation to the legitimate governmental objective, see Kingsley, 135 S. Ct. at 2473-74, or if Respondent fails to provide for his reasonable safety, see DeShaney, 489 U.S. at 200.
Here, Petitioners have not made that showing and cannot do so as circumstances currently stand at PCCF. As described in the attached declarations, PCCF is taking active and substantial
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measures to respond to a challenging public health crisis. Ex. A; Ex. B. Indeed, CAPT Steven S. Wolf, MD, a PHS physician and the Medical Director for the USMS Prisoner Operations Division, reviewed those measures and opines that “PCCF is providing appropriate precautions to protect their prisoner population during the current COVID-19 pandemic.” Ex. C. ¶ 10.
Those measures create conditions that are reasonably related and not excessive in relation to the government’s interests in ensuring that Petitioners are available for their trials and, ultimately, for service of their sentences, and are legitimate means of furthering those interests— especially when:
• All of the Petitioners are charged with serious drug or gun crimes. Three (Baez, Bermudez, and Goncalves) are charged with conspiracy to distribute large amounts of fentanyl. Some, like Lindsey, have lengthy criminal histories (e.g., drug and gun convictions). One of them (Bermudez) assaulted a pregnant woman.
• Based on the gravity of those charges and criminal histories, all of the Petitioners are subject to valid orders of detention issued by federal magistrate judges.
• Two of those magistrate judges recently denied release requests filed by two of the Petitioners (Baez and Goncalves) based on individualized, case-specific facts and determined that those Petitioners should remain in detention despite the threat to health and safety posed by COVID-19.9
Moreover, PCCF’s measures generally track the recommendations of public health authorities, including the CDC. Ex. A; Ex. B; Ex. C.
Of course, the risk of contracting COVID-19, either in PCCF or elsewhere, cannot be entirely eliminated. But Respondent is not required to eliminate any risk to Petitioners. Rather, Respondent is required to provide for their reasonable safety. See DeSahney, 489 U.S. at 200. Because PCCF’s measures meet that standard, Petitioners’ claim under the Fifth Amendment fails
9 Bermudez’s release request currently is pending and Lindsey has not sought release. 19

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and, at a minimum, is unlikely to succeed on the merits. E.g., Kingsley, 135 S. Ct. at 2473; DeShaney, 489 U.S. at 199; Bell, 441 U.S. at 535.
2. Petitioners Have Not Shown An Eighth Amendment Violation. Petitioners also allege that the conditions of their confinement at PCCF violate the Eighth Amendment. See Doc. # 1 ¶¶ 163-78 (Second Cause of Action). The Eighth Amendment protects against the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. “A prison official violates the Eighth Amendment only when two requirements are met.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). “First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). A deprivation is sufficiently serious if “a prison official’s act or omission” causing such a deprivation “result[s] in the denial of ‘the minimal civilized measure of life’s necessities.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Second, “a prison official must have a ‘sufficiently culpable state of mind.’” Id. (quoting Wilson, 501 U.S. at 297). “[T]hat state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson, 501 U.S. at 302–03). Plaintiffs have not shown that they can meet either of these requirements. First, they have not suffered a “sufficiently serious” deprivation. See Wilson, 501 U.S. at 297. The active and substantial measures PCCF is taking to respond to a challenging public health crisis does not come close to satisfying the standard of deprivation Petitioners must satisfy here. Ex. A; Ex. B; Ex. C. None of the Petitioners is held in crowded units. To the contrary, the units housing Baez, Bermudez, and Gonsalves are half empty, Ex. A ¶¶ 9-11, and Lindsey’s unit is at less than 20 percent capacity, id. ¶ 12. And, both Bermudez and Gonsalves have their own cells.10 Id. ¶¶ 10-
10 While Baez and Gonsalves share living quarters with a limited number of other detainees, this is also true of many unincarcerated members of the community who live with roommates or family members. See Hines v. Youssef, No. 13-0357, 2015 WL 164215, at *4 (E.D. Cal. Jan. 13, 2015) (“Unless there is something about a prisoner’s conditions of confinement that raises the risk
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11. When Petitioners are in common areas, such as during recreation and meals, PCCF takes a variety of precautions that reasonably provide for adequate social distancing. Id. ¶¶ 10-11. Moreover, Petitioners’ own healthcare provider attests, based on a review of their medical records and observations during detention, that none them has a medical condition that presents “a higher risk for COVID-19.” See Decl. of Marcia Norat, attached as Exhibit E hereto.11
Second, Petitioners cannot satisfy the subjective criterion, which requires them to prove “that officials had subjective knowledge of the serious medical need and recklessly disregarded the excessive risk to inmate health or safety from that risk.” Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citing Farmer, 511 U.S at 837). The test is subjective, meaning “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [or she] must also draw the inference.” Farmer, 511 U.S at 837. To be sure, PCCF is acutely aware of the risk that COVID-19 poses to its detainee population and to the public at large, but it can hardly be said to be indifferent, as shown by the actions to counteract the spread of COVID-19 described above and in the multiple declarations Respondent has submitted in connection with this opposition. Ex. A; Ex. B; Ex. C; Ex. E.
While Petitioners may disagree with some of the measures taken by PCCF to protect detainees, deliberate indifference cannot be not shown simply by a difference of medical judgment. See Scott v. Benson, 742 F.3d 335, 340 (8th Cir. 2014) (holding that a “mere difference of opinion over matters of expert medical judgment or a course of medical treatment fail[s] to rise to the level of a constitutional violation”). Because that is all Petitioners offer—a difference of medical
of exposure substantially above the risk experienced by the surrounding communities, it cannot be reasoned that the prisoner is involuntarily exposed to a risk the society would not tolerate.”).
11 Ms. Norat is PCCF’s Health Services Administrator. Ex. E. Because her declaration contains medical information about Petitioners, it has been submitted under seal.
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judgment from purported experts who have never been to PCCF, or at least not recently, and who rely on hearsay declarations provided by Petitioners’ lawyers in their criminals cases—Petitioners’ claim under the Eighth Amendment fails and, at a minimum, is unlikely to succeed on the merits.
3. Respondent Lacks Authority To Release Pretrial Detainees Subject To An Order Of Detention From Another Session Of This Court.
In addition, Petitioners have not shown how Respondent is empowered to provide the primary relief they seek: their release from detention. Doc. # 1 at 39 (section B.1-2 of the prayer for relief). Although Respondent is the immediate custodian for Petitioners, they are not subject to detention by any authority of Respondent. Rather, Petitioners are subject to detention by order of the federal judges assigned in each of their pending criminal cases. See 18 U.S.C. § 3142. Petitioners cite no authority for the extraordinary proposition that Respondent may reduce its detainee population when those detainees are subject to valid, case-specific orders of detention from other federal judges in this district (or have requested detention, like Lindsey, resulting in an order of detention). See Doc. # 1 at 39 (section B.1 of the prayer for relief). Nor do Petitioners cite any authority for the equally extraordinary proposition that a court-appointed expert may usurp that judicial function in the guise of “recommendations to the Court regarding how many and which class members to order released.” Id. at 39 (section B.2 of the prayer for relief).
As discussed above (supra Part II), the bail process is the only appropriate legal avenue through which Petitioners may seek release due to the threat to health and safety posed by COVID19. Because Petitioners may seek release in their criminal cases, because Respondent is unable to release them on his own authority, and because a court-appointed expert may not usurp that judicial function, the Court should deny Petitioners’ motion.
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B. Petitioners Have Not Shown That They Are Likely To Suffer Irreparable Harm In The Absence of Injunctive Relief.
Independently, Petitioners have not shown that they are likely to suffer immediate and irreparable harm in the absence of injunctive relief. To the contrary, Petitioners’ alleged harm— that their detention increases the risk of harm from COVID-19—is speculative based on the sitespecific circumstances at PCCF. There is not currently, and has never been, a case of COVID-19 in the inmate and detainee population at PCCF. Ex. A ¶ 7; Ex. B. ¶ 24 Ex. C ¶ 11. Although there has been one case of COVID-19 of a PCCF staff member, it has been 33 days since that individual was last at PCCF. Ex. A ¶ 7; Ex. B. ¶ 24. To put that into perspective, 33 days is more than six times the median incubation period (about five days) and more than double the CDC’s recommended quarantine period (14 days). Indeed, the fact that a staff member tested positive for COVID-19 in mid-March, and yet there are zero cases of COVID-19 in the inmate and detention population as of April 20, indicates that PCCF’s efforts are working. That fatally undermines Petitioners’ claim that the efforts to prevent exposure to COVID-19 at PCCF are insufficient to the point where they require the highly extraordinary remedies they seek, including judicial monitoring and release of detainees.
Nor have Petitioners shown that their alleged injury—that they are subject to a heightened risk of death from COVID-19—will be redressed by ordering their release. To the contrary, Petitioners’ desired relief—release from detention—will not ameliorate their claimed heightened risk of injury or death resulting from COVID-19, nor can release prevent them from contracting COVID-19. Petitioners offer no proof—nor is Respondent aware of any—that their release from PCCF, a facility without a single case of COVID-19 in the inmate and detainee population, into Massachusetts, which has declared a state of emergency based on the COVID-19 crisis, or anywhere else, will reduce their risk of injury or death. See generally Doc. # 1. Although infection
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rates in Plymouth County are relatively low (less than half of one percent of the population), that rate is higher than zero—the current infection rate among inmates and detainees at PCCF.
Moreover, it cannot be overlooked that PCCF provides medical care at no cost to detainees, including Petitioners. By reason of their detention, Petitioners have greater access to robust medical care than many in the general public. Ordering their release from PCCF would leave Petitioners without their present access to health care and could put them at greater risk of serious complications in the event that they contracts COVID-19. As Dr. Baker attests generally in his declaration:
While it is clear that a prison setting poses particular challenges from an infectious disease stand-point, the risk of infection is tempered by the degree of control we have over access to the facility. We are screening incoming detainees/inmates carefully and taking steps to isolate them as necessary. We have a highly educated and trained staff that is acutely aware of the risks posed by the pandemic. We are also providing a level of medical care to the detainees/inmates that they are unlikely to receive outside of PCCF. Ex. B ¶ 21. Because Petitioners have not shown that they are likely to suffer immediate and irreparable harm, the Court should deny Plaintiff’s motion. C. Petitioners Have Not Shown That The Balance Of Equities Tip In Their Favor Or That An Injunction Is In The Public Interest. The final two factors, which “merge when the Government is the opposing party,” Nken v. Holder, 556 U.S. 418, 435 (2009), also tilt strongly against injunctive relief. Here again, Petitioners have not met their burden. Petitioners ask this Court to order Respondent to release an unspecified but presumably substantial number of pretrial detainees so that the remaining detainees will not have to share living space and can more easily practice social distancing. But Petitioners do not provide any information regarding viable housing options outside of PCCF, either for themselves or members of the putative class, or whether they or members of the putative class, if
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asked to leave PCCF, would be deprived of access to food, means of personal hygiene, and medical care.12 Not only would that put them at risk of becoming infected with COVID-19, but it would also put others in the community at risk, thereby undermining the substantial public efforts to suppress the spread of the COVID-19. Because Petitioners have not shown that these remaining factors support the extraordinary injunction they seek, the Court should deny Plaintiff’s motion.
CONCLUSION For all of the foregoing reasons, Respondent respectfully requests that the Court deny Petitioner’s motion.
Respectfully submitted,

ANTONE MONIZ Superintendent of the Plymouth County Correctional Facility

By his attorneys,

ANDREW E. LELLING, United States Attorney

Dated: April 21, 2020

By: /s/ Jason C. Weida Jason C. Weida Assistant U.S. Attorney United States Attorney’s Office 1 Courthouse Way, Suite 9200 Boston, Massachusetts 02210 (617) 748-3180 Jason.Weida@usdoj.gov

12 The CDC emphasizes that people who are homeless are particularly vulnerable to COVID-19. See https://www.cdc.gov/coronavirus/2019-ncov/community/homeless-shelters/ index.html (last visited Apr. 20, 2020).
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EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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DECLARATION OF ASSISTANT DIRECTOR
JOHN P. SHEEHAN
I, John P. Sheehan, Assistant Director, Prisoner Operations Division, United States Marshals Service make the following statements under oath and subject to the penalty of perjury:
1. I am employed by the U.S. Department of Justice, United States Marshals Service (USMS), and currently serve as an Assistant Director in the Prisoner Operations Division (POD). I have held this position since December 2019. I previously held the position of Deputy Assistant Director, POD, and have been employed with the USMS since June 1998.
2. I provide this declaration based on my personal knowledge, belief, reasonable inquiry, and information obtained from various records, systems, databases, other USMS employees, and information portals maintained and relied upon by USMS in the regular course of business.
3. As the USMS does not own or maintain detention facilities, the USMS must house federal prisoners in Federal Bureau of Prisons (BOP) Pretrial facilities, in State and local detention facilities pursuant to Intergovernmental Agreements (IGA), and contract jail facilities. The USMS has entered into an IGA to house federal prisoners at the Plymouth County Correctional Facility located at 26 Long Pond Rd, Plymouth, MA 02360. The IGA, is an at-will agreement that permits other federal agencies, such as Immigration & Customs Enforcement (ICE) and the BOP to house their prisoners at the facility, as needed, in exchange for a daily per diem rate.
4. An IGA is an agreement between the USMS and a state, county, or local government to provide secure custody, safekeeping, housing, subsistence, and care of USMS prisoners in accordance with all state and local laws, standards, regulations, policies, and court orders applicable to the operation of the facility. IGA facilities are required to house USMS prisoners in the manner that they house their own prisoners and in a manner that is consistent with Federal law, Federal Performance Based Detention Standards (FPBDS), and/or any other standards delineated in the agreement. While the USMS can provide assistance or advice regarding various standards, the USMS is without the authority to enforce IGA terms, and must rely on the jail’s cooperation. The jail is an independent contractor and the USMS cannot control the activities within the jail or how the jail provides services.
5. As with every State or local facility used by the USMS, the USMS annually conducts an on-site review of the facility to assess its compliance with the USMS detention standards. The annual facility review is conducted by a specifically-trained Deputy U.S. Marshal.
6. IGA facilities are required to provide USMS prisoners with the same level and range of care inside the facility as that is provided to State and local detainees. Specifically, IGA facilities are required to provide medical care for USMS prisoners that is in compliance
1

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with the provisions of USMS-Prisoner Health Care Guidance to Districts and the FPBDS.
7. The USMS employs U.S. Public Health Service (PHS) personnel -- to include physicians, physician assistants, and nurses -- to oversee and manage its prisoner medical program. The PHS staff work closely with medical personnel at the IGA facilities to attend to the medical needs of USMS prisoners. The IGA facilities are required to provide USMS prisoners with the same in-facility medical care that they provide their own prisoners. With the exception of medical care, all outside medical care must be approved by USMS PHS personnel pursuant to a request from jail medical staff.
8. In the cases of any infectious disease, IGA facilities are expected to work closely with State health departments and the Centers for Disease Control (CDC), as needed, to ensure that any infectious diseases are promptly identified and treated. All decisions concerning prisoner infectious disease treatment, including decisions to isolate and quarantine prisoners, are made at the facility level.
9. PHS staff have developed COVID-19 screening criteria for prisoners entering and departing detention facilities as well as guidelines for the safe transport of USMS prisoners to court and to medical appointments in line with CDC guidance.
10. CAPT Steven S. Wolf, MD, a PHS physician and Medical Director for the USMS Prisoner Operations Division, has reviewed declarations made by Joseph McDonald, Sheriff of Plymouth County, and Dr. Lawrence Baker, Medical Director for Plymouth County Correctional Facility (PCCF); it is his opinion that the PCCF is providing appropriate precautions to protect their prisoner population during the current COVID19 pandemic.
11. As of April 19, 2020, USMS has the following information with respect to federal prisoners housed in the Plymouth County Correctional Facility:
a. The USMS currently houses 170 prisoners at the facility.
b. There are zero confirmed cases of COVID-19 among the USMS prisoners housed at the facility.
I declare, under penalty of perjury under 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge.

Dated: April 21, 2020

___________________________________ John P. Sheehan Assistant Director Prisoner Operations Division United States Marshals Service
2

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EXHIBIT D

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®fffrt llf f~t 1\tt~rttf{! ~tntral
Jla:g4iu9tntt. it QI. 20,5$0
April 6, 2020

MEMORANDUM FOR ALL HEADS OF DEPARTMENT COMPONENTS AND ALL UNITED STATES ATTORNEYS

FROM: SUBJECT:

THE ATTORNEY G E N E R A L W ~
Litigating Pre-Trial Detention Issues During the COVID-19 Pandemic

The mission of the Department of Justice is to enforce our nation's laws and to ensure the safe and fair administration of justice. We have an obligation to maintain public safety and to protect victims and witnesses from threats and retaliation, and we must also safeguard the health and safety of those remanded to our custody. As always, controlling weight should be given to public safety, and under no circumstance should those who present a risk to any person or the community be released. But the current COVID-19 pandemic requires that we also ensure we are giving appropriate weight to the potential risks facing certain individuals from being remanded to federal custody. Each case must be evaluated on its own and, where appropriate, the risks the pandemic presents should be part of your analysis, as elaborated further below.
First, the Bail Reform Act ("BRA") remains the governing statute for pretrial detention issues and you are to continue enforcing that provision according to its terms. As you know, the BRA provides that a defendant must be detained pending trial where "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e)(l).
For certain crimes, it is presumed that "no condition or combination of conditions ofrelease will reasonably assure the appearance of the person as required and the safety of the community." 18 U.S.C. § 3142(e)(3). We should continue applying the BRA's factors and that presumption according to their terms. We simply cannot agree to anything that will put the public at risk. COVID-19 presents real risks, but so does allowing violent gang members and child predators to roam free. When you believe a defendant poses a risk to the safety of any person or the community at large, you should continue to seek remand as zealously today as you would have before the pandemic began, in accordance with the BRA's plain terms. Protecting the public from criminals is our paramount obligation.

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Memorandum from the Attorney General Subject: Litigating Pre-Trial Detention Issues During the COVID-19 Pandemic

Page 2

Second, in applying the familiar BRA analysis, which already includes some consideration of the defendant’s “physical and mental condition,” id., you should now consider the medical risks associated with individuals being remanded into federal custody during the COVID-19 pandemic. Even with the extensive precautions we are currently taking, each time a new person is added to a jail, it presents at least some risk to the personnel who operate that facility and to the people incarcerated therein. It also presents risk to the individual being remanded into custody—risk that is particularly acute for individuals who are vulnerable to a serious infection under the Centers for Disease Control and Prevention (“CDC”) Guidelines.
We have an obligation to minimize these risks to the extent possible while remaining faithful to the BRA’s text and discharging our overriding obligation to protect the public. That means you should consider not seeking detention to the same degree we would under normal circumstances—specifically, for those defendants who have not committed serious crimes and who present little risk of flight (but no threat to the public) and who are clearly vulnerable to COVID-19 under CDC Guidelines. In this analysis, the risk of flight and seriousness of the offense must be weighed against the defendant’s vulnerability to COVID-19. Accordingly, we should continue to seek detention for defendants who are charged with serious crimes and who pose a substantial risk of flight, or for defendants who would normally warrant detention under the BRA and who are not vulnerable to COVID-19 under CDC Guidelines.
Third, these same considerations should govern your litigation of motions filed by detained defendants seeking release in light of the pandemic. In these cases, the Court has already made a finding based on the evidence presented that a defendant posed a risk of flight or a danger to the community and should therefore be remanded pending trial. In assessing whether it is appropriate to revisit that determination, you should also consider the potential risk that the defendant will spread COVID-19 in his or her community upon release. At the same time that the defendant’s risk from COVID-19 should be a significant factor in your analysis, you should also consider any risk that releasing the defendant would pose to the public. This consideration will depend on the facts and circumstances of each defendant and the facility where he or she is being held, and you should factor this consideration into your analysis as appropriate. Our duty to protect the public extends to protecting it from contagion spread by someone released from our custody.
* * *
The factors and considerations discussed herein should guide your analysis of pretrial detention issues while the pandemic is ongoing, but what position to take in each particular case is ultimately your decision. We must adapt to the current difficult circumstances, while also ensuring that we never deviate from our duty to keep the public safe from dangerous criminals. Please exercise your discretion appropriately.

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EXHIBIT E FILED UNDER SEAL

 
 Case 1:20-cv-10753-LTS Document 38 Filed 04/24/20 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

____________________________________________

)

ANTHONY BAEZ, JONATHAN BERMUDEZ,

)

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated;

)

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

ANTONE MONIZ, SUPERINTENDENT OF THE )

PLYMOUTH COUNTY CORRECTIONAL

)

FACILITY, in his official capacity;

)

)

)

Defendant-Respondent.

)

)

____________________________________________ )

Case No. 1:20-cv-10753

PETITIONERS’ MEMORANDUM OF LAW IN OPPOSITION TO RESPONDENT’S MOTION TO DENY PETITIONER’S HABEAS PETITION

Petitioners Anthony Baez, Jonathan Bermudez, Jermaine Gonsalves and Dedrick Lindsey

(collectively “Petitioners”) filed this habeas corpus action (the “Petition”) pursuant to 28 U.S.C.

§ 2241 to seek prompt redress for systematic and ongoing violations of their own constitutional

rights and the constitutional rights of a similarly-situated class of other federal detainees (the

proposed class members), being held by Respondent Antone Moniz (“Respondent”) at the

Plymouth County Correctional Facility (“Plymouth” or “PCCF”) in Plymouth, Massachusetts.

These violations endanger Petitioners and the proposed class members’ lives. As detailed in the

Petition, and as supported in the exhibits and affidavits attached thereto, Respondent’s conduct,

including, but not limited to, his repeated failures to implement and maintain consistently

appropriate social distancing and hygiene practices at Plymouth pose a grave risk to the health

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and lives of Petitioners and the other members of the putative class. Petitioners ask this Court to direct Respondent to take prompt action to correct those constitutional violations and prevent the spread of a lethal virus within the facility.
In response to this serious and significant Petition, Respondent has not expressed interest in taking genuine steps to address the deficiencies described by Petitioners. Instead, he advances meritless arguments which demonstrate his lack of concern and lack of understanding of the seriousness of the COVID-19 situation within Plymouth.
For example, other than vague generalities about his efforts “to permit and encourage” social distancing, Respondent’s response is notable for its failure to address with any specificity precisely what Respondent is actually doing to enforce at Plymouth the type of six foot social distancing that is being imposed upon broader society throughout the Commonwealth and the nation at-large. Respondent also admits, but does not address, the fact that he continues to house federal detainees in shared cells and dormitories at Plymouth. And of course, while Respondent states that he has the ability “to conduct COVID-19 testing on site” and trumpets his claim that only one employee and no detainees have yet tested positive for COVID-19, he obscures the fact (addressed in the Petition) that only a tiny fraction of those detainees and staff have actually been tested for the virus. See Petition at ¶94. Instead, Respondent seeks to have the Petition dismissed out of hand—without any further inquiry into its practices and without any regard for the serious allegations presented in the affidavits attached to the Petition.
Respondent’s arguments seeking denial and/or dismissal of the Petition should be rejected. As explained in greater detail, none of Respondent’s contentions is supported by the law or the facts applicable to the Petition.
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First, Respondent’s contention that this Court lacks subject matter jurisdiction is wrong because this matter arises under 28 U.S.C. § 2241, not the Prison Litigation Reform Act (“PLRA”). Respondent’s efforts to wedge this matter into the strictures of the PLRA is inconsistent with the way numerous courts around the country have addressed similar claims for relief, and flatly contradicts guidance from the Justice Department itself. Moreover, even if this Court were to conclude that some subset of Petitioners’ claim is subject to the PLRA, the Court remains free to grant substantial portions of the relief requested in the Petition given the extraordinary circumstances related to the COVID-19 pandemic.
Second, Respondent’s argument that Petitioners lack standing to pursue their claims for relief is baseless. Petitioners have submitted a detailed Petition alleging constitutional violations committed, supported by affidavits from their criminal defense counsel and three medical experts who have opined on the spread of COVID-19 within incarcerated populations. Those submissions detail actual injuries that Petitioners are suffering and will suffer if the conditions at Plymouth are not addressed promptly and are more than sufficient to establish Petitioners’ standing to pursue their claims here. Indeed, at best, Respondent’s challenge to Petitioners’ standing justifies further and detailed factual inquiry into the current conditions at Plymouth and Respondent ‘s response (or lack thereof) to the COVID-19 crisis.
Third, Respondent’s contention that Petitioners failed to exhaust their administrative remedies under the PLRA fails for the same reasons as mentioned above—this action arises under 28 U.S.C. § 2241, not the PLRA. Moreover, the inmate grievance procedure that Respondent touts as the administrative remedy that Petitioners should have pursued makes crystal clear that it is in fact not available for the type of class-wide, multi-pronged complaints that are asserted in the Petition. Accordingly, there was nothing for Petitioners to exhaust. And,
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of course, any such exhaustion requirement—even if one did exist—should be waived in light of

the extraordinary and unprecedented threat to Petitioners posed by the current COVID-19 crisis.

Finally, Respondents’ effort to redirect the issues presented in the Petition into multiple

individual claims arising under the Bail Reform Act, 18 U.S.C. § 3142, wholly disregards

Petitioners’ right to pursue their class-based habeas corpus claims and protect their constitutional

rights under 28 U.S.C. § 2241. Other federal courts have taken action to protect those rights in

light of the threat posed by the COVID-19 crisis. See, e.g., Banks v. Booth, Civ. A. No. 20-

849(CKK), slip op. at 22, 26 (D.D.C. Apr. 20, 2020), ECF No. 51. This Court can and should do

likewise.

For all these reasons, Respondent’s Motion to Deny Petitioners’ Habeas Petition should

be rejected.

ARGUMENT

I. THIS COURT HAS SUBJECT MATTER JURISDICTION UNDER SECTION 2241.

A.

The PLRA Does Not Apply Because Petitioners Properly Petition For A Writ

Of Habeas Corpus Under Section 2241.

Respondent first contends that the Petition should be dismissed because it is barred by the

Prison Litigation Reform Act (“PLRA”). See Respondent Antone Moniz’s Memorandum of

Law in Support of His Motion To Deny Petitioner’s Habeas Petition for Lack of Subject Matter

Jurisdiction and for Failure to State a Claim (“Resp. Mem.”), ECF No. 22, at 14-20. That

contention is simply wrong. The PLRA expressly does not apply to “habeas corpus proceedings

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challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2).1 Because Petitioners’ habeas corpus petition directly challenges “the fact or duration” of their confinement2 at Plymouth, the PLRA does not apply to this case. Putnam v. Winn, 441 F. Supp. 2d 253, 255 (D. Mass. 2006) (holding that PLRA exhaustion requirement “does not apply to any requests for collateral relief under 28 U.S.C. §[] 2241” (citing Walker v. O'Brien, 216 F.3d 626, 628–29, 633–37 (7th Cir. 2000))); see also Martin v. Bissonette, 118 F.3d 871, 874 (1st Cir. 1997) (“[T]he PLRA does not apply to habeas petitions”) (citing, among others, Smith v. Angelone, 111 F.3d 1126, 1131 (4th Cir. 1997); United States v. Levi, 111 F.3d 955, 956 (D.C. Cir. 1997) (per curiam); Anderson v. Singletary, 111 F.3d 801, 805 (11th Cir. 1997)).
The First Circuit has repeatedly ratified the use of habeas corpus petitions to address constitutional deficiencies in the conditions of detainees’ confinement. See United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006) (“If the conditions of incarceration raise Eighth Amendment concerns, habeas corpus is available.”); Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977) (“Section 2241 provides a remedy for a federal prisoner who contests the conditions of his confinement . . . .”); Francis v. Maloney, 798 F.3d 33, 36 (1st Cir. 2015) (“[A]n individual may invoke § 2241 to . . . contest one’s imprisonment in a specific facility.”).
Many other courts have already concluded that habeas corpus constitutes a proper vehicle to remedy constitutional violations caused by detention officials’ failure to adequately respond to the current COVID-19 crisis. See, e.g., Banks v. Booth, Civ. A. No. 20-849(CKK),
1 The First Circuit has left open the possibility that detainees may challenge the conditions of their confinement in a habeas corpus petition that does not also attack the fact or duration of their confinement. See Brennan v. Cunningham, 813 F.2d 1, 4-5 (1st Cir. 1987) (observing that the Supreme Court “explicitly left open the possibility that a challenge to prison conditions, cognizable under § 1983, might also be brought as a habeas corpus claim” (quoting Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973)). 2 Where a petitioner requests release or transfer as a consequence of prison officials’ constitutional violations, his petition is “properly viewed as similar to cases involving challenges to the fact or length of confinement.” See Brennan v. Cunningham, 813 F.2d 1, 4-5 (1st Cir. 1987).
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slip op. at 22, 26 (D.D.C. Apr. 20, 2020), ECF No. 51; see also, e.g., Fofana v. Albence, No. 2010869, 2020 WL 1873307, at *11 (E.D. Mich. Apr. 15, 2020);; Basank v. Decker, No. 20 CIV. 2518 (AT), 2020 WL 1481503, at *1 (S.D.N.Y. Mar. 26, 2020); Bent v. Barr, No. 19-CV-06123DMR, 2020 WL 1812850, at *2 (N.D. Cal. Apr. 9, 2020); Doe v. Barr, No. 20-CV-02141-LB, 2020 WL 1820667, at *8 (N.D. Cal. Apr. 12, 2020); Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *9 (M.D. Pa. Mar. 31, 2020); Leandro R. P. v. Decker, No. CV 20-3853 (KM), 2020 WL 1899791, at *9 (D.N.J. Apr. 17, 2020); Barbecho v. Decker, No. 20-cv-2821 (AJN), 2020 WL 1876328, at *1 (S.D.N.Y. Apr. 15, 2020); Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844, at *9 (D. Mass. Apr. 8, 2020); Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *5 (N.D. Ill. Apr. 9, 2020).
Indeed, Respondent’s position that habeas corpus is unavailable here contradicts the Justice Department’s own guidance. See Dep’t of Justice, Justice Manual, Federal Habeas Corpus 9-37.000, available at https://www.justice.gov/jm/jm-9-37000-federal-habeas-corpus (last visited Apr. 23, 2020) (stating that detainees may raise “complaints about conditions of confinement” in Section 2241 petitions).
If detainees may need to be transferred or released in order to remedy alleged constitutional deficiencies in their medical care, the detainees’ claim necessarily qualifies as an attack on “the fact or duration of confinement” and is therefore cognizable under § 2241. Kane v. Winn, 319 F. Supp. 2d 162, 214-15 (D. Mass. 2004); accord Fox v. Lappin, 441 F. Supp. 2d 203, 206 (D. Mass. 2005) (“[W]here transfer or release are at issue, a habeas petition is warranted.”); Putnam, 441 F. Supp. 2d at 256 (ruling that challenge to regulation precluding detainee’s transfer to halfway house contests fact or duration of sentence, and thus a cognizable habeas corpus petition). In other words, when a petitioner seeks “a quantum change in the level
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of custody,” to a “less restrictive” form of custody, he appropriately challenges “the fact or duration of his confinement” in a habeas corpus petition. Gonzalez-Fuentes v. Molina, 607 F.3d 864, 873 (1st Cir. 2010) (quoting Wilkinson v. Dotson, 544 U.S. 74, 78 (2005); Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991)); Fox, 441 F. Supp. 2d at 206 (quoting Kane, 319 F. Supp. 2d at 215); see also Collazo-Leon v. U.S. Bureau of Prisons, 51 F.3d 315, 317 (1st Cir. 1995) (ruling on merits of habeas corpus petition requesting transfer out of conditions of confinement where habeas corpus formed sole basis for jurisdiction).
Such is the case here. Petitioners contend that release of a sufficient number of Plymouth’s federal detainees is a requisite component of the remedial measures they seek to redress their unconstitutional conditions of confinement and remedy Respondent’s violation of his constitutional duty to safeguard Petitioners’ health and safety.3 See Kane, 319 F. Supp. 2d at 215. As detailed by Drs. Giftos, LaRocque, and Rich, Plymouth will continue to expose Petitioners to severe risks from COVID-19 until Respondent implements social distancing policies and practices including but not limited to single occupancy cells. Plymouth is simply not a “suitable facility” so long as Petitioners cannot socially distance. See Garcia v. Spaulding, 324 F. Supp. 3d 228, 233 (D. Mass. 2018) (permitting petitioner to seek writ of habeas corpus for a transfer from a detention center that allegedly could not safeguard the petitioner’s health and safety). Because their Petition inherently and necessarily implicates a change in the quantum of confinement of Plymouth’s federal detainees, Petitioners properly petitioned for writs of habeas corpus challenging the fact of their continued confinement. See Gonzalez-Fuentes, 607 F.3d at 873; cf. Heath v. Hanks, No. 18-CV-624-JD, 2019 WL 6954202, at *3 (D.N.H. Dec. 19, 2019)
3 Professor Judith Resnik explains that “because COVID-19 can end people’s lives unexpectedly and abruptly, COVID-19 claims turn the condition of being incarcerated into a practice that affects the fact or duration of confinement.” Decl. of Professor Judith Resnik Regarding Provisional Remedies for Detained Individuals ¶ 26 (“Resnik Decl.”), Money v. Jeffreys, No. 20 cv 2094 (N.D. Ill. Apr. 8, 2020), ECF No. 24-3.
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(ruling that habeas petition was the appropriate vehicle through which detainee could request

transfer so he could receive proper health care).

Respondent does not cite a single case supporting the proposition that Petitioners cannot

pursue a writ of habeas corpus under these circumstances. See Resp’t’s Mem. 14-20. At most, he

quotes inapposite portions of a Supreme Court dissent and an extra-circuit case. See Resp’t’s

Mem. 18 n.8 (quoting Preiser v. Rodriguez, 411 U.S. 475, 507 (1973) (Brennan, J., dissenting);

Moran v. Sondalle, 218 F.3d 647, 650-51 (7th Cir. 2000) (per curiam)). The Court consequently

should reject Respondent’s unsubstantiated argument that Petitioners’ Section 2241 petition is

not cognizable.

B.

This Court Can Grant Petitioners Preliminary Relief.

Even if this Court were to find that Petitioners pleaded a civil rights claim that is subject

to the PLRA,4 it need not convene a three-judge panel to grant Petitioners relief. First, Section

3626(a)(3) governs only requests for release where “crowding is the primary cause of the

violation of a Federal right.” 18 U.S.C. § 3626 (a)(3)(E)(i). Second, this Court has full authority

to order the full range of relief measures that Petitioners have requested short of a literal order

directing the release of detainees. See 18 U.S.C. § 3626(a)(3)(A)(i), (D); Banks, supra, slip op.

at 22, 26; Mays, 2020 WL 1812381, at *15.

1. Section 3626(a)(3) Applies Only to “Overcrowding” Claims.

Section 3626(a)(3) only applies to overcrowding claims, not claims premised on a failure

to respond to an ongoing emergency, such as the COVID-19 pandemic. Subparagraph (E)

provides that a three-judge court can only issue a prisoner relief order if it “finds by clear and

convincing evidence that – (i) crowding is the primary cause of the violation of a Federal right.”

4 This analysis is also necessary were the Court to conclude that Preiser allows habeas corpus petitions challenging the conditions of confinement more broadly. See supra n.1.
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“Overcrowding” is a term of art that “refers to the presence in a facility or prison system of a prisoner population exceeding that facility or system's capacity.” Coleman v. Schwarzenegger, 922 F. Supp. 2d 882, 920 (E.D. Cal. 2009) (Reinhardt, J., writing for three-judge court), aff’d sub nom. Brown v. Plata, 563 U.S. 493 (2011). The Second and Ninth Circuits use a prison’s “design capacity” to evaluate whether it is overcrowded. Id. at 920-21 (citing Doty v. Cty. of Lassen, 37 F.3d 540, 543 (9th Cir. 1994)); Hoptowit v. Ray, 682 F.2d 1237, 1248–49 (9th Cir. 1982); Lareau v. Manson, 651 F.2d 96, 99–100 (2d Cir. 1981)); see also Agramonte v. Shartle, 491 F. App'x 557, 560 (6th Cir. 2012) (holding that mere “increased population” is insufficient for an overcrowding claim). A “primary cause” is the “[f]irst or highest in rank, quality, or importance; principal” cause. Brown, 563 U.S. at 525 (quoting American Heritage Dictionary 1393 (4th ed. 2000)).
Section 3626(a)(3)’s procedural requirements are expressly limited to “prisoner release orders,” which are, in turn, predicated on prison overcrowding. But this case does not concern prison overcrowding. Far from it. Petitioners accept Respondent’s representation that the current population of Plymouth’s federal detainees is well below the design capacity of the respective units in which they are housed. Resp.’s Mem. 22. The gravamen of Petitioner’s claim is that “the primary cause” of the violation of their constitutional rights stems from Respondent’s constitutionally deficient response to COVID-19. See 18 U.S.C. § 3626(a)(3)(E)(i); cf. Coleman, 922 F. Supp. 2d at 920-21 (noting that the PLRA only applies where crowding is the primary cause). Respondent’s failure to implement the Centers for Disease Control’s recommendations, especially with respect to social distancing, primarily caused the violation of Petitioners’ Fifth and Eighth Amendment rights. See Brown, 563 U.S. at 525.
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The definition of a “prisoner release order” is established by the requirements for entering such an order. Reaves v. Dep't of Corr., 404 F. Supp. 3d 520, 523 (D. Mass. 2019) (citing Plata v. Brown, No. C01-1351 TEH, 2013 WL 12436093, at *9 (N.D. Cal. June 24, 2013)). Because a three-judge panel can only issue a prisoner release order under Section 3626(a)(3)(E) if “crowding is the primary cause of the violation of a federal right,” the procedural preconditions attendant to such orders do not apply to claims whose primary cause derives from something other than prison overcrowding. Reaves, 404 F. Supp. 3d at 523. If they did, then detainees could not receive release or transfer to remedy those constitutional wrongs not primarily caused by a facility’s overpopulation relative to its design capacity, even if that relief were the only effective remedy for the constitutional violation. Plata v. Brown, 2013 WL 12436093, at *10 (providing examples). Nothing in the legislative history of Section 3626(a)(3) suggests that Congress intended foreclose district courts from granting such relief in those circumstances. See Reaves, 404 F. Supp. 3d at 523; see also United States v. Mass. Water Res. Auth., 256 F.3d 36, 48 (1st Cir. 2001) (“Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.” (quoting Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)).
Respondent’s failure to take necessary precautions to protect the federal detainees in his custody from the life-threatening risk of COVID-19 gave rise to the violation of Petitioners’ federal rights, not Plymouth’s overcrowding relative to its design capacity. Respondent does not contest this. As such, § 3626(a)(3)’s strictures do not apply to Petitioner’s requests for relief. See Mass. Water Res. Auth., 256 F.3d at 48; Reaves, 404 F. Supp. 3d at 523. But see Money v. Pritzker, No. 20-CV-2093, 2020 WL 1820660, at *13 (N.D. Ill. Apr. 10, 2020) (treating
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Respondent’s alleged failure to adequately respond to COVID-19 as an overcrowding claim where release was the sole remedy Plaintiffs requested); Plata v. Newsom, No. 01-cv-01351-JST, slip op. at 16 (N.D. Cal. Apr. 17, 2020), ECF No. 3291 (similar).
2. This Court Can Order the Full Range of Relief Petitioners Have Requested that Is Less Intrusive Than a Direct Order for Release of Plymouth Federal Detainees.
Section 3626(a)(3) provides that “a court” must enter an order for “less intrusive relief” before a three-judge panel convenes to determine whether a prisoner release order is warranted. The statute itself therefore contemplates that a single district court judge may order a broad spectrum of relief as needed to remedy violations of federal rights before a prisoner release order issues. Accordingly, this Court can order the full range of “less intrusive” relief Petitioners have requested. See 18 U.S.C. § 3626(a)(3)(A)(i). Only if this Court were to do so, and those less intrusive measures failed to remedy Respondent’s deprivation of Petitioners’ Fifth and Eighth Amendment rights, would the issue of convening a three-judge panel in this matter squarely arise. As such, that question is not yet ripe for this Court’s consideration. 18 U.S.C. § 3626(a)(3)(D). The three-judge panel contemplated by 18 U.S.C. § 3626(a)(3)(D) has a limited role: to evaluate whether a prisoner release order is appropriate after a single district court judge rules that the claim is meritorious. See Brown, 563 U.S. at 524 (“Once the threejudge court was convened, that court was not required to reconsider the merits. Its role was solely to consider the propriety and necessity of a population limit.”).
In response to the COVID-19 pandemic, courts have provided detainees with a broad array of “less intrusive relief,” notwithstanding detainees’ request for release. For example, in Mays v. Dart, where detainees challenged the Cook County Jail’s response to COVID-19, the Northern District of Illinois federal district court ordered the jail’s sheriff to take a variety of
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steps to improve conditions in the facility, including implementing new social distancing policies, providing detainees “soap and/or hand sanitizer . . . in quantities sufficient to permit them to frequently clean their hands,” and adopting and implementing new policies to ensure “sanitization between all uses of frequently touched surfaces and objects.” 2020 WL 1812381, at *15. Similarly, the District of Columbia federal district court granted pretrial detainees and postconviction defendants’ motion for a temporary restraining order requiring District of Columbia Department of Corrections officials to address their failures “to take comprehensive, timely, and proper steps to stem the spread of [COVID-19].” Banks, slip op. at 22, 26. Consequently, the court ordered more than three full pages’ worth of remedial measures ranging from ensuring “appropriate and consistent implementation of social distancing policies,” to expedited responses to “sick cell requests,” to effective monitoring of cell restrictions. Id. at 2731.
In Coleman v. Newsom, even though a three-judge panel was already convened to oversee the remediation of constitutionally inadequate medical and mental health care in the California state prison system due to overcrowding, that panel concluded that a single district court judge was the appropriate forum for Plaintiffs’ § 1983 action seeking relief from the threat of COVID-19 within those facilities. Nos. 2:90-cv-0520 KJM DB, P, 01-cv-01351-JST, 2020 WL 1675775, at *8 (E.D. Cal. & N.D. Cal. Apr. 4, 2020). The three-judge panel directed plaintiffs to “go before a single judge to press their claim that Defendants’ response to the COVID-19 epidemic is constitutionally inadequate,” adding that, “if a single-judge court finds a constitutional violation, it may order Defendants to take steps short of release necessary to remedy that violation.” Id. at *7.
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Petitioners contend – and Respondent does not dispute – that this Court has full authority to grant the “less intrusive” relief Petitioners’ requested in their Petition, while staying consideration of Petition Request B.1, concerning an order of release. See Resp’t’s Mem. 14-18 (focusing only on Petitioners’ request to reduce population of Plymouth’s federal detainees). These would include (1) ordering Respondent to enhance social distancing policies and practice among Plymouth’s federal detainees and between those detainees and facility staff; (2) ordering Respondent to institute additional precautionary measures to mitigate the risk of federal detainees contracting COVID-19; (3) appointing a monitor to assess conditions at the facility and recommend to the Court additional safety measures necessary to protect federal detainees’ health and safety in response to COVID-19; and (4) formulating a process or protocol for identifying and prioritizing subclasses of the proposed class for consideration for release in the event this court, or any other court or authority, deems such release necessary to vindicate Petitioners’ constitutional rights. Petition 39-40, ECF No. 1; Application for an Emergency TRO 2, ECF No. 9. None of these constitute prisoner release orders and therefore fall squarely within the Court’s purview.
Finally, this Court could also “enlarge” Petitioners’ and proposed class members’ custody without running afoul of § 3626(a)(3). In so doing, it could simply grant them temporary permission to serve their detention elsewhere, without issuing a prisoner release order per se. See Resnik Decl. ¶¶ 31-33; see also Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844, at *8 (D. Mass. Apr. 8, 2020) (ordering “bail” for immigration detainees challenging detention conditions in habeas corpus petition on ground that district courts have “inherent authority” to issue bail “in the case of ‘a health emergency,’ where the petitioner also has
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demonstrated a likelihood of success on the merits” (quoting Woodcock v. Donnelly, 470 F.2d

93, 94 (1st Cir. 1972) (per curiam)). Because Petitioners seek release only during the duration of

the COVID-19 state of emergency, such a provisional remedy constitutes a “less intrusive

remedy” that a single judge court can order. See Wilson v. Williams, No. 4:20-cv-00794, slip op.

at 20 (N.D. Ohio Apr. 22, 2020), ECF No. 22, (holding that “enlargement” is not release within

the meaning of Section 3626(a)(3)).

II. PETITIONERS HAVE STANDING TO PURSUE THEIR CLAIMS.

Respondent next argues that the Petition should be summarily denied because Petitioners

lack standing to pursue their claims. See Resp.’s Mem. at 20-24. That argument is meritless and

should be rejected by this Court.

Petitioners have asserted claims addressing the significant and serious risks posed to them

and other proposed class members by Respondent’s failure to take appropriate actions in

response to the COVID-19 crisis. Respondent’s contention that these concerns are merely

“speculative” not only disregards the specific and detailed allegations set forth in the Petition (as

well as the various affidavits attached as exhibits thereto), it also ignores the practical reality

posed to Petitioners by the imminent threat of the virus itself. Respondent would have

Petitioners wait until a COVID-19 outbreak occurs at Plymouth before they could claim standing

to assert their constitutional claims. See Resp’t’s Mem. at 21-22. That requirement is nowhere

to be found in the law.

A.

The Petition Contains Sufficient Allegations and Ample Evidence to Support

Petitioner’s Standing to Pursue Their Claims.

In order to meet the requirements for standing, a plaintiff must “‘allege such a personal

stake in the outcome or controversy’ as to warrant [their] invocation of federal-court jurisdiction

and to justify exercise of the court’s remedial powers on [their] behalf.” Warth v. Seldin, 422 - 14 -

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U.S. 490, 498-99 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). A plaintiff must plead an injury, causation, and redressability. Davis v. FEC, 554 U.S. 724, 733-34 (2008) (“[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.”) (internal quotation marks and citations omitted). The Petition in this case easily satisfies these requirements.
In this case, each of the Petitioners has alleged that Respondent is violating their constitutional rights by failing to implement necessary safety precautions to mitigate their risk of contracting a highly contagious, potentially fatal disease. Petitioners’ conditions of confinement render them to practice social distancing, employ routine hygiene practices, use hand sanitizer and/or wash their hands regularly. These conditions are punitive in nature and violate Petitioners’ constitutional rights under the Fifth and Eighth Amendments. See Petition at ¶150-178. These allegations—all of which are supported by affidavits attached to the Petition— are plainly sufficient to establish Petitioners’ standing to pursue this action.
Nor is Petitioners’ standing defeated by Respondent’s claim that none of the Petitioners or proposed class members has (yet) contracted COVID-19. The constitutional violations alleged by the Petitioners in this case are grounded in the Respondent’s current conduct— including the failure to enforce social distancing in all areas at Plymouth, the failure to adhere to the CDC Interim Guidelines, and the failure to enforce hygienic practices at the facility. See, e.g., Petition at Exhibit H ¶ 4 (description from Petitioner Baez of a cell shared with four other detainees where it is impossible to maintain six feet of separation); Exhibit K ¶ 4 (description by Petitioner Lindsay of tables that require detainees to eat in close proximity to each other); see also Petition at Exhibit H, ¶8-9; Exhibit I, ¶5-7,9-10; Exhibit J, ¶7-9; Exhibit K, ¶9 (basic hygiene protections are largely unavailable). Accordingly, Petitioners’ allegations regarding
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constitutional injuries are not rooted solely in their “risk” of contracting the virus; Petitioners contend that those injuries are ongoing.
Moreover, notwithstanding Respondent’s contentions to the contrary, a risk of future harm is a legally cognizable risk for purposes of standing “if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013). Here, the unprecedented risks posed by the COVID-10 epidemic—particularly the enhanced risks posed to Petitioners under the conditions at Plymouth— necessarily satisfies any requirement that the threat be either “certainly impending” or “substantial.” Id.
Indeed, several federal courts have recently determined that the serious risks posed to detainees by the COVID-19 pandemic were sufficient to confer standing on those detainees to pursue habeas petitions under 18 U.S.C. § 2241. See Banks, slip op. at 8 (“Plaintiffs’ claimed injury is the risk of contracting COVID-19. The Court finds that the risk of contracting a disease is a legally cognizable risk for purposes of standing.”); see also Fofana v. Albence, No. 2010869, 2020 WL 1873307, at *8 (E.D. Mich. Apr. 15, 2020). As explained by the Fofana court, “Petitioners do not need to allege that [Plymouth currently has] confirmed COVID-19 cases or that they have contracted the virus to demonstrate standing . . . It is well documented that detention facilities increase the risk of contracting infectious diseases because of the inherent nature of confinement.” Id. “The Constitution does not require that Petitioners be seriously ill from COVID-19, or that they await the introduction and spread of COVID-19 in their detention facility before they may assert their Fifth Amendment rights.” Id.
So too here. Petitioners allege that all of the proposed class members are being exposed to a cognizable risk of contracting COVID-19, a highly contagious, lethal disease for which there
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is no vaccine and no cure. See Petition at ¶21, 27. Moreover, Petitioners’ claims are supported by the affidavits of three doctors who have detailed the unique risks posed to incarcerated persons in a situation such as the one faced by Petitioners. Id. at ¶73-75. Dr. Josiah Rich has opined that “correctional settings are ideal for rapid spread of viruses that are transmitted personto-person, especially those passed by droplets through coughing and sneezing.” See Petition, Ex. C at ¶3. Dr. Rich’s opinion is clear: there are several aspects of a correctional setting that significantly increase the risk of the spread of COVID-19 such as poor ventilation systems, detainees’ sleeping arrangements and inadequate opportunities for detainees to exercise necessary hygiene measures. Id. at ¶6, 9, 11. Indeed, Plymouth is particularly vulnerable to the spread of COVID-19 because of its minimal health standards. Id. at 11; see also Bent v. Barr, No. 19-CV-06123-DMR, 2020 WL 1812850 at *3 (N.D. Cal. Apr. 9, 2020) (“Courts fielding habeas petitions in the wake of the escalating pandemic have rejected similar standing arguments, even when there is no evidence that a particular detention facility has detected a confirmed case of the virus. “ (citing cases); accord Thakker v. Doll, No. 20-CV-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) (“Respondents would have us offer no substantial relief to Petitioners until the pandemic erupts in our prisons. We reject this notion.”).
If that were not enough, this Court need look no further than the ongoing situation at Donald W. Wyatt Detention Facility (“Wyatt”) in Central Falls, Rhode Island, to determine the imminence of the threat posed to Petitioners by the virus. For several weeks prior to April 21, 2020, Wyatt, like Plymouth, had reported no positive tests at the facility.5 On April 21, 2020, Wyatt filed a status report with the Rhode Island federal district court indicating one positive
5 It is unclear how many COVID-19 tests were actually conducted on Wyatt detainees and staff during its earlier period. See In re Donald W. Wyatt Detention Facility, Case No. 1:20-mc-00004-JJM (D.R.I. Apr. 20 & 21, 2020), ECF Nos. 2, 3.
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COVID-19 test of a detainee at Wyatt. See In re Donald W. Wyatt Detention Facility, Case No. 1:20-mc-00004-JJM (D.R.I. Apr. 21, 2020), ECF No. 3. Within one day of its first positive test,

the facility went on an immediate and near-complete lockdown, causing the cancellation of multiple judicial hearings and directly disrupting detainees’ access to their counsel.6 As of the

date of the submission of this brief, Wyatt is reportedly up to eight confirmed cases of COVID-

19 among its federal detainees. E-mail from Kevin Neal, Supervisory Deputy U.S. Marshal,

District of Massachusetts, to Emily R. Schulman, Esq. (Apr. 24, 2020, 4:15 EDT). Plainly,

Plymouth will be in a similar position when and if a detainee tests positive for COVID-19. That

risk is more than sufficient to establish Petitioners’ standing in this action.

B.

Petitioners’ Increased Risk of Contracting COVID-19 Is Redressable by

Their Requested Relief.

There is little doubt that the most effective ways to slow the spread of COVID-19 are to

practice social distancing and good hygiene. See Petition at ¶27-33. As noted by the Court in Banks, “[d]ue to the unique posture of jails and prisons, steps taken to reduce the risk of infection among any inmates, such as reducing the inmate population or providing adequate

cleaning supplies, would also reduce [Petitioners’] risk of contracting COVID-19.” See Banks, slip op. at 8. Further, measures taken at Plymouth regarding social distancing and improved

hygiene conditions will reduce the risk of infection to Plymouth detainees who are not released.

Id. Contrary to Respondent’s claim that Petitioners have offered “no proof” that their release

from Plymouth will reduce their risk of injury or death (see Resp’t’s Mem. at 23), Petitioners have presented ample evidence to support their that contention, including three separate expert

6 See http://www.wyattdetention.com/ (Apr. 23, 2020) (“On April 21, 2020, The Wyatt Detention Facility has had its first case of COVID-19. The Facility has been put on Lockdown status.”)
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affidavits. As noted by Dr. Rich, in order to reduce the risk of an outbreak of COVID-19 at

Plymouth, “it is imperative to scale up efforts to ‘decarcerate,’ or release, as many detainees as

possible.” See Petition at ¶73 & Ex. C. Dr. Regina LaRocque notes that an outbreak of COVID-

19 in a correctional institution would have “disastrous consequences” for both the facility and the

broader community, and that it is “urgent” that Plymouth institute a “comprehensive social

distancing regimen.” Id. ¶74 & Ex. D. Dr. Jonathan Giftos has opined that it is an “urgent

priority to reduce the number of people in detention facilities, including Plymouth, during this

national public health emergency.” Id. at ¶75 & Ex E. Respondent’s spurious claim that

Petitioners have greater access to medical care while incarcerated ignores the reality of the

COVID-19 pandemic, which is that if there is a COVID-19 outbreak at Plymouth, Petitioners’

and other detainees’ access to medical care will not prevent the disease from spreading like

wildfire through the facility and into the greater community.

C.

This Court May Properly Authorize Discovery to Resolve Any Dispute

Regarding Petitioners’ Standing.

Finally, to the extent that the Court has any lingering questions regarding Petitioners’

standing to pursue their claims in this case, it may properly authorize discovery to investigate

any factual disputes that bear on that issue. See Valentin v. Hosp. Bella Vista, 254 F.3d 358,

363-64 (1st Cir. 2001) (explaining that a factual challenge to plaintiff’s standing justifies

“differential factfinding,” which may include “discovery,” “extrinsic evidence, and “evidentiary

hearings.”); see also Hernandez-Santiago v. Ecolab, Inc., 397 F.3d 30, 33 (1st Cir. 2005)

(“Where a party challenges the accuracy of the pleaded jurisdictional facts, the court may

conduct a broad inquiry, taking evidence and making findings of fact.”).

Here, Respondent has challenged Petitioners’ standing by citing to its contentions

regarding the lack of COVID-19 cases at Plymouth, Resp.’s Mem. at 21-22, as well as its - 19 -

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assertions regarding the “adequate social distancing” that is allegedly occurring at the facility. Id. at 22-23. But the Petition contains both allegations and evidence that directly rebut these contentions. See Petition ¶¶ 94-95 (explaining that, as of April 16, 2020, only four detainees and seventeen staff members at Plymouth had been tested for COVID-19 and that there therefore “is not reliable information regarding the spread of the virus at [Plymouth]”); see also Petition at Exhibit H, ¶4, 5-6; Exhibit I, ¶8-9; Exhibit J, ¶4-5; Exhibit K, ¶4-5.
Accordingly, even if this Court were to question Petitioners’ standing to pursue their claims, it should promptly authorize fact-finding regarding the Petitioners’ allegations in order to address that issue. Valentin, 254 F.3d at 363-64. Respondent’s suggestion that the Court should instead summarily dismiss the Petition in its entirety for lack of standing must be rejected. III. PETITIONERS ARE NOT REQUIRED TO EXHAUST THEIR
ADMINISTRATIVE REMEDIES. Respondent next argues that the Petition should be dismissed because Petitioners did not exhaust their administrative remedies under the Prison Litigation Reform Act (“PLRA”). See Resp. Mem. at 24-27. But, as previously argued, this case involves a habeas petition under 28 U.S.C. § 2241. Thus, the PLRA—including its administrative exhaustion requirements—is wholly inapplicable here. See supra. pp. 4-14; see also Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001) (explaining that “the [administrative exhaustion] requirements of the [PLRA] do not apply to habeas proceedings”). For that reason, the Government’s arguments regarding PLRA exhaustion should be rejected. Moreover, any exhaustion requirements that might otherwise apply to this action should necessarily be excused in light of the exigencies presented by the current COVID-19 crisis. Courts addressing similar petitions have acknowledged that the urgency created by the pandemic requires that any otherwise applicable administrative exhaustion requirements be waived. See
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United States v. Haney, 2020 WL 1821988 (S.D.N.Y. Apr. 13, 2020) (Rakoff, J.) (waiving the exhaustion requirement in 18 U.S.C. § 3582 “in the extraordinary circumstances now faced by prisoners as a result of the COVID-19 virus and its capacity to spread in swift and deadly fashion”); United States v. Perez, 2020 WL 1546422 (S.D.N.Y. Apr. 1, 2020) (“Here, even a few weeks delay carries the risk of catastrophic health consequences for [the defendant]”); cf. Doe v. Barr, 2020 WL 1820667 (N.D. Cal. Apr. 12, 2020) (addressing a § 2241 petition and explaining that “Courts have entertained similar COVID-19 claims under habeas jurisdiction without mentioning prudential exhaustion”); see also Washington v. Barr, 925 F.3d 109, 118 (2d Cir. 2019) (explaining that a genuine threat of “catastrophic health consequences” could “make exhaustion futile.”).
Nor is there any serious doubt here that any effort by Petitioners to address the concerns presented in the Petition through an internal grievance process would be futile. See Iacaboni v. United States, 251 F. Supp. 2d 1015, 1017 n.1 (D. Mass. 2003) (“The obvious futility of any administrative remedy would excuse the failure to exhaust.”); Monahan v. Winn, 276 F. Supp. 2d 196, 204 (D. Mass. 2003) (incarcerated person need not pursue an administrative remedy that “clearly would be futile”). The COVID-19 crisis was declared a national emergency by the President on March 13, 2020. See Petition at ¶34. The Centers for Disease Control and Prevention (“CDC”) issued its Guidance on Management of Coronavirus Disease 2019 (Covid19) in Correctional and Detention Facilities (the “Interim Guidance”) on March 23, 2020. Id. at ¶76. That Interim Guidance specifically addressed, inter alia, the need for detention facilities to enforce social distancing within their facilities at all times. Id. at ¶79. The Governor of Massachusetts issued a series of emergency orders regarding the crisis, id. at ¶36, and the Massachusetts Supreme Judicial Court has repeatedly addressed significant concerns regarding
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the safety of detained individuals in the Commonwealth during the crisis. Id. at ¶64-65. Despite all of those well-known public directives, Respondent continues to house federal detainees in shared cells, id. at ¶96, 101, 109, fails to enforce six feet of social distancing at meals and during recreation, id. at ¶97, 110, 119, fails to regularly test inmates or staff for the virus, id. at ¶95, and fails to institute appropriate hygienic practices to prevent the spread of the virus. Id. at ¶99, 102103, 111-114, 121-122, 125-127. Under these circumstances, Respondent’s notion that these issues will somehow be remedied promptly through the internal inmate grievance process is not credible. See Iacaboni, supra.
Even more fundamentally, Plymouth’s inmate grievance process makes clear that it does not apply to broader group complaints such as those being advanced by Petitioners in this case. Part I(C)of the instructions for Plymouth’s inmate grievance process specifically states that “No grievance will be accepted by a group, on behalf of a group, or a grievance which includes more than one inmate.” See Resp’t’s Mem. at Ex. A (attaching PCCF 491 “Inmate Grievance Procedure”) at Part I(C) (emphasis added). Those very same instructions further provide that “Any Inmate Grievance Form that contains multiple grievances . . . will not be accepted.” See id. at Part II(G) (emphasis added). Accordingly, the very internal administrative procedures that Respondent contends Petitioners should have followed make clear that those internal procedures are not available for the class-wide, multi-pronged complaints being asserted in the Petition in this case. Accordingly, there is no administrative process to be exhausted here. Ross v. Blake, 136 S. Ct. 1850, 1859 (2016) (explaining that an administrative procedure is “unavailable” when
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it operates as a “dead end,” including “‘where the relevant administrative procedure lacks authority to provide any relief’”) (quoting Booth v. Churner, 532 U.S. 731, 726 n.4 (2001)).7
Finally, in the unlikely event that this Court were to determine that the PLRA applies here, the unprecedented circumstances surrounding the COVID-19 outbreak necessarily justify a waiver of any administrative exhaustion requirements in this case. Courts have recognized that there are rare circumstances where administrative remedies under the PLRA “offer no possible relief in time to prevent . . . imminent danger from becoming an actual harm.” Fletcher v. Menard Correctional Center, 623 F.3d 1171, 1174 (7th Cir. 2010). Indeed, the United States Supreme Court has explained that a detainee need not exhaust remedies if they are not “available.” Ross v. Blake, 136 S. Ct. 1850, 1855 (2016). And a remedy is considered “available” only if it is “capable of use” by a detainee to “obtain some relief for the action complained of.” Id.
Petitioners’ claims in this case arise in precisely the type of extraordinary scenario contemplated by the Seventh Circuit in Fletcher: the COVID-19 virus is spreading across the nation and the Commonwealth by the day, and detention facilities which, like Plymouth, have repeatedly claimed to have “no cases,” have suddenly found themselves confronting a rising number of infections and in “lockdown” in a matter of hours. See supra at pp. 17-18. Under these circumstances, no administrative remedy can occur within the shortened time frame required to address the harm facing the Petitioners and the proposed class members. Medical
7 Equally important, Respondent has elsewhere conceded that any effort by Petitioners to pursue an administrative remedy at Plymouth in this case would necessarily be futile. Specifically, as Respondent has taken pains to point out, Respondent’s internal procedures are insufficient to remedy fully the constitutional violations that Petitioners are suffering. See Resp’t’s Mem. at 27 (contending that Respondent is powerless to “usurp” the detention orders of federal judges). Respondent cannot credibly take that position and simultaneously assert that Petitioners should first pursue an internal grievance procedure before proceeding on their broader claim for habeas relief.
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experts have determined that “it is imperative to scale up efforts to ‘decarcerate,’ or release, as many detainees as possible,” that an outbreak of COVID-19 in a correctional institution would have “disastrous consequences” for both the facility and the broader community, and that it is “urgent” that Plymouth institute a “comprehensive social distancing regimen.” See Petition at ¶73-74 & Ex. C-D. It is simply impossible for an administrative remedy to occur in time to avoid the disastrous consequences of an outbreak of COVID-19 within Plymouth. For these reasons, Respondents’ supposed administrative remedy is not genuinely “available” to Petitioners and any exhaustion requirement must be waived. Fletcher, 623 F.3d at 1173. IV. THE RELIEF SOUGHT IN THE CLASS ACTION PETITION IS
APPROPRIATELY ADDRESSED IN THIS PROCEEDING RATHER THAN IN INDIVIDUAL DETENTION PROCEEDINGS. Petitioners have explained above that the various remedies sought in their Petition are not barred by the PLRA and are appropriately presented through a class action arising under 28 U.S.C. § 2241. See supra pp. 4-14. The Government, however, has one final argument: that the “primary remedy” sought by Petitioners can only be sought through individual motions in their criminal cases brought pursuant to 18 U.S.C. § 3142. Specifically, the government argues that the “bail process is the only appropriate legal avenue through which Petitioners may seek release due to the threat to health and safety posed by COVID-19.” See Resp.’s Mem, at 26. On this point, the Government is simply wrong. As discussed in detail above, under the circumstances presented in this case, a federal court may properly address detainees’ conditions of pretrial confinement, including matters relating to release, in a habeas petition arising under section 2241. See supra pp. 4-14. Indeed, as previously referenced, the U.S. District Court for the District of recently granted injunctive relief to a class of inmates, including pretrial detainees, who sought multi-faceted remedies, including release, under 28 U.S.C. § 2241 for
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unconstitutional conditions of confinement related to COVID-19. See Banks, slip op. at 1; see also Chunn. v. Edge, No. 1:20-cv-01590, ECF No. 1 (habeas petition seeking relief for conditions of confinement related to COVID-19 on behalf of a class of petitioners that include pretrial detainees). Although the Banks Court has not yet issued an order addressing the proposed release of any of the petitioners or class members, it did not indicate that the petitioners’ request in that case for a release plan relating to pretrial detainees in any way limited its authority over the matter. See Banks, slip op. at 31 (concluding only that an order requiring “immediate release of inmates” was “inappropriate at this time”).
Equally important, Respondent’s argument fails to acknowledge the inefficiency in pursuing the bail process for each proposed class member under 18 U.S.C. § 3142, which would require a separate filing and hearing for each of the one-hundred and seventy-two (172) federal detainees at Plymouth. And, perhaps more importantly, the individual bail process cannot effectively and efficiently address the numerous conditions of confinement that are currently affecting and violating the constitutional rights of all of the proposed class members and for which the Petition seeks redress. Those conditions are not limited to the particulars of one individual case.
Remarkably, the government cites Judge Young’s recent decision in United States v. Moore-Bush for the proposition that the concerns presented in the Petition should be addressed through individual detention proceedings rather than through this habeas action. In that case, the Court declined to grant individual relief to a defendant in part because “[t]hus far, neither residents nor staff [at MCI Framingham] have tested positive for COVID 19.” No. 18-CR-30001
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(D. Mass. Mar. 25, 2020), ECF No. 568.8 What the government fails to mention is that, soon
after Judge Young issued his decision, the defendant was in fact diagnosed with COVID-19. See
Assented-to Emergency Motion for Immediate Electronic Production of Medical Records,
Moore-Bush, (Apr. 10, 2020), ECF No. 570. Thus, the Moore-Bush individual detention
hearing—which focused solely on the circumstances surrounding one defendant and not more
broadly on the conditions of the facility where the defendant was being held and the conduct of
its personnel—in fact demonstrates the practical limitations of the bail review process in
addressing the serious and significant matters raised in the Petition.9
At bottom, the government hopes to avoid in this case what it has apparently managed to
avoid in each of the individual bail proceedings that have been separately filed by various federal
detainees in this District in response to the COVID-19 crisis: a comprehensive and thorough
examination of Plymouth’s response to the serious and significant threat posed by the COVID-19
virus to all of the federal detainees at the facility. But it is precisely such a comprehensive
examination that is required in order to ensure that the constitutional rights of those detainees are
adequately protected. Petitioners have validly and properly asserted their claims on behalf of
8 It is unclear from the record whether any COVID-19 tests had actually been conducted at MCI-Framingham as of March 25, 2020, the date of the Court’s decision in that case. In its submission opposing release in that case, the government represented that “even if a case of Covid-19 were to be confirmed at MCI-Framingham, the facility has the capacity to address it.” See Gov’t’s Opp’n at 6, Moore-Bush, ECF No. 567 (Mar. 24, 2020). Unfortunately, that promise was wishful thinking. As of April 22, 2020, twenty-six (27) prisoners and eleven (11) staff members at MCI-Framingham have tested positive for COVID-19. Norman Miller, MCI-Framingham Sees Increased Risk of Coronavirus in Inmates, Staff, MetroWest Daily News (Apr. 22, 2020), https://www.metrowestdailynews.com/news/20200422/mci-framingham-sees-increase-of-coronavirus-in-inmatesstaff. 9 Nor does the government’s citation to Gon v. Gonzalez, 534 F. Supp. 2d 118, 120 (D.D.C. 2008) help its cause. In Gon, the district court held only that a single habeas petition challenging a pretrial detention order “unduly duplicates judicial efforts” undertaken during his prior bail hearing. By contrast, the habeas petition in this case, which seeks to address broadly the conditions at Plymouth affecting Petitioners and the other Class Members, plainly does not duplicate any prior judicial efforts. Moreover, the unique circumstances presented by the COVID19 crisis necessarily presents precisely the type of extraordinary and special circumstances where habeas corpus relief is appropriate for Petitioners and the other class members.
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themselves and on behalf of Plymouth’s other federal detainees Plymouth under 28 U.S.C. § 2241. See supra pp. 4-14. Nothing in the Bail Reform Act bars Petitioners from proceeding.
CONCLUSION This Court has jurisdiction over this matter and the Petition submitted in this case states a claim for relief. For those reasons the Court should deny Respondent’s Motion to Deny Petitioner’s Habeas Petition.

/s/ Daniel Cloherty Daniel J. Cloherty (BBO # 565772) Saraa Basaria (BBO # 685705) TODD & WELD LLP One Federal Street, 27th Floor Boston, MA 02110 (617) 720-2626 dcloherty@toddweld.com sbasaria@toddweld.com

/s/ Emily Schulman Emily R. Schulman (BBO #566374) Adam W. McCall (pro hac vice) WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6077 emily.schulman@wilmerhale.com adam.mccall@wilmerhale.com
David E. Rudin (pro hac vice) WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 937-7249 david.rudin@wilmerhale.com
Attorneys for Anthony Baez, Jonathan
Bermudez, Jermaine Gonsalves, and
Dedrick Lindsey and the proposed class

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Case 1:20-cv-10753-LTS Document 38 Filed 04/24/20 Page 28 of 28 CERTIFICATE OF SERVICE
I, Emily R. Schulman, counsel for Petitioners, hereby certify that this document has been filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).
/s/ Emily Schulman Emily R. Schulman
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 Case 1:20-cv-10753-LTS Document 39 Filed 04/24/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ANTHONY BAEZ, JONATHAN BERMUDEZ )

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated,

)

)

Petitioners,

)

)

v.

)

)

ANTONE MONIZ,

)

)

Respondent.

)

Civil Action No. 20-10753-LTS

RESPONDENT ANTONE MONIZ’S SECOND MOTION TO DENY PETITIONERS’ HABEAS PETITION FOR LACK OF SUBJECT MATTER JURISDICTION

Respondent Antone Moniz, Superintendent of the Plymouth County Correctional Facility (“Respondent”), by and through his attorney, Andrew E. Lelling, United States Attorney for the District of Massachusetts, respectfully files this second motion, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, to deny Petitioner Anthony Baez’s, Petitioner Jonathan Bermudez’s, Petitioner Jermaine Gonsalves’s, and Petitioner Dedrick Lindsey’s (collectively, “Petitioners”) Class Action Petition Seeking Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Complaint for Declaratory and Injunctive Relief (the “Petition”) (Doc. # 1). The grounds for this motion, and an explanation for why Respondent is filing a second motion (see footnote 1), are set forth in the accompanying memorandum of law.
WHEREFORE, Respondent respectfully requests that the Court deny the Petition and dismiss the case.

Case 1:20-cv-10753-LTS Document 39 Filed 04/24/20 Page 2 of 2

Dated: April 24, 2020

Respectfully submitted,
ANTONE MONIZ Superintendent of the Plymouth County Correctional Facility
By his attorneys,
ANDREW E. LELLING, United States Attorney
By: /s/ Jason C. Weida Jason C. Weida Assistant U.S. Attorney United States Attorney’s Office 1 Courthouse Way, Suite 9200 Boston, Massachusetts 02210 (617) 748-3180 Jason.Weida@usdoj.gov

LOCAL RULE 7.1(a)(2) CERTIFICATION
I hereby certify that, by email on April 23, 2020, and by telephone on April 24, 2020, I conferred with counsel for Petitioner, who would not assent to the relief sought in this motion.
/s/ Jason C. Weida Jason C. Weida Assistant U.S. Attorney

1

Case 1:20-cv-10753-LTS Document 40 Filed 04/24/20 Page 1 of 6

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ANTHONY BAEZ, JONATHAN BERMUDEZ )

JERMAINE GONSALVES, and DEDRICK

)

LINDSEY on behalf of themselves and all others )

similarly situated,

)

)

Petitioners,

)

)

v.

)

)

ANTONE MONIZ,

)

)

Respondent.

)

Civil Action No. 20-10753-LTS

RESPONDENT ANTONE MONIZ’S MEMORANDUM OF LAW IN SUPPORT OF HIS SECOND MOTION TO DENY PETITIONERS’ HABEAS PETITION FOR LACK OF SUBJECT MATTER JURISDICTION

Dated: April 24, 2020

ANDREW E. LELLING United States Attorney
JASON C. WEIDA Assistant U.S. Attorney
United States Attorney’s Office John Joseph Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, Massachusetts 02210 (617) 748-3180 jason.weida@usdoj.gov
Attorneys for the Government

Case 1:20-cv-10753-LTS Document 40 Filed 04/24/20 Page 2 of 6
Respondent Antone Moniz, Superintendent of the Plymouth County Correctional Facility
(“Respondent”), respectfully submits this memorandum of law in support of his second motion to
deny Petitioner Anthony Baez’s, Petitioner Jonathan Bermudez’s, Petitioner Jermaine
Gonsalves’s, and Petitioner Dedrick Lindsey’s (collectively, “Petitioners”) Class Action Petition
Seeking Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Complaint for Declaratory and
Injunctive Relief (the “Petition”) (Doc. # 1) for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.1
ARGUMENT
I. THE PETITION MUST BE DENIED FOR LACK OF SUBJECT MATTER JURISDICTION BECAUSE THE PETITION DOES NOT PROVIDE A VALID JURISDICTIONAL BASIS FOR CONDITIONS-OF-CONFINEMENT RELIEF. The first stated jurisdictional basis for the Petition and the relief it seeks, and the only
jurisdictional basis Petitioners attempt to explain, is the habeas statute.2 See Doc. # 1 ¶ 17
(“Petitioners bring this action pursuant to 28 U.S.C. § 2241 for relief from Respondents’ conduct
in violation of the Fifth and Eighth Amendments to the U.S. Constitution.”); see also, e.g., id.
¶ 128 (describing habeas). Because Petitioners’ challenge to the conditions of their confinement
falls well outside the core of habeas corpus, the Petition must be denied.
1 The undersigned apologizes for not raising this argument in Respondent’s motion filed on Tuesday. From the time he received the Petition on Saturday through his filings on Tuesday, the undersigned was under tremendous time constraints. The single argument raised in this motion did not come into focus until later, and since then the undersigned has endeavored to file this motion as soon as possible so that Petitioners would have an adequate opportunity to respond before next Thursday’s hearing. In all events, challenges to jurisdiction may be raised at any time.
2 The Petition also lists several other bases for this Court’s subject matter jurisdiction, but Petitioners do not explain how any of those bases supplies jurisdiction in this case if habeas jurisdiction is lacking. Doc. # 1 ¶ 18 (“The Court has subject matter jurisdiction over this Petition pursuant to Article I, § 9, cl. 2 of the U.S. Constitution (Suspension Clause); the Fifth and the Eighth Amendments to the U.S. Constitution; 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1651 (All Writs Act).”). None does so.
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Case 1:20-cv-10753-LTS Document 40 Filed 04/24/20 Page 3 of 6
“Habeas is at its core a remedy for unlawful executive detention,” and “[t]he typical remedy for such detention is, of course, release.” Munaf v. Geren, 553 U.S. 674, 693 (2008); see also INS v. St. Cyr, 533 U.S. 289, 301 (2001) (“At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.”); Allen v. McCurry, 449 U.S. 90, 104 (1980) (“[T]he purpose of [the writ of habeas corpus] is not to redress civil injury, but to release the applicant from unlawful physical confinement.”). Thus, although the question remains open, courts as a general matter have recognized that habeas corpus proceedings are the proper mechanism for challenging the “fact or duration” of confinement, while a non-habeas civil action is the proper method of challenging “conditions of confinement.” E.g., Preiser v. Rodriguez, 411 U.S. 475, 484-99 (1973).
While the circuits are not uniform on this issue, courts in this district have long observed the dichotomy described in Preiser. For example, in Crooker v. Grondolsky, Judge O’Toole denied a habeas petition that challenged the adequacy of the petitioner’s medical care. No. 1212106, 2013 WL 101588, at *4 (D. Mass. Jan. 4, 2013). The court reasoned that “judges of this Court repeatedly have held that the failure to provide adequate medical treatment is not the proper subject of a petition for a writ of habeas corpus.” Id. at *2. “Claims for inadequate medical treatment are most properly characterized as conditions of confinement claims, which are generally not cognizable under § 2241; rather most challenges to the constitutional adequacy of medical care should proceed as a civil rights action.” Crooker, 2013 WL 101588, at *2. Because there was no reason to depart from that longstanding view, the court denied the habeas petition. Id. at *4. See also Jenkins v. Spaulding, No. 19-10078, 2019 WL 1228093, at *1 (D. Mass. Feb. 22, 2019), appeal dismissed, No. 19-1307, 2019 WL 4757883 (1st Cir. July 26, 2019) (Kelley, M.J.) (“Jenkins appears to be challenging the conditions of his confinement. This claim should
2

Case 1:20-cv-10753-LTS Document 40 Filed 04/24/20 Page 4 of 6
be brought through a civil rights action.”); Kamara v. Farquharson, 2 F. Supp. 2d 81, 88–89 (D. Mass. 1998) (Saris, J.) (“It is a well-settled general principle that a habeas petition is the appropriate means to challenge the ‘actual fact or duration’ of one’s confinement, whereas a civil rights claim is the proper means to challenge the ‘conditions’ of one’s confinement.”).3
Respondent is not aware of a decision in this district that grappled with this precise issue in the COVID context. Courts in other districts have reached different results for different reasons, but many have insisted that the Preiser dichotomy hold firm when petitioners sought changes to the conditions of their confinements (as Petitioners do here) as opposed to when they sought only release (typically on the ground that no set of changes could ameliorate the alleged constitutional deprivation). E.g., Livas v. Myers, No. 20-00422, 2020 WL 1939583, at *7–8 (W.D. La. Apr. 22, 2020); Gayle v. Meade, No. 20-21553, 2020 WL 1949737, at *26 (S.D. Fla. Apr. 22, 2020); Benavides v. Gartland, No. 20-46, 2020 WL 1914916, at *5 (S.D. Ga. Apr. 18, 2020); Phea v. Pfeiffer, No. 20-00283, 2020 WL 1892427, at *1 (E.D. Cal. Apr. 16, 2020); SacalMicha v. Longoria, No. 20-37, 2020 WL 1518861, at *4 (S.D. Tex. Mar. 27, 2020).
Here, the Court is presented with the former and not the later scenario. Petitioners do not seek release as their only remedy. Nor do they contend, as petitioners in other cases have argued, that no set of changes could ameliorate the alleged constitutional deprivation. Rather, Petitioners
3 After recognizing that his view may be in tension with some of his colleagues on the bench in this district, Judge Young has pronounced in dicta that “habeas will in fact lie for certain conditions of confinement claims.” Kane v. Winn, 319 F. Supp. 2d 162, 214 (D. Mass. 2004). Judge Young’s analysis focused on the ways in which some cases, while technically challenging the conditions of confinement, closely resemble a challenge to the fact or duration of confinement. Id. None of those examples is remotely similar to this case. In all events, in order to find that it lacks habeas jurisdiction in this case (as it should), this Court need not find that it lacks habeas jurisdiction to address any conceivable challenge to the conditions of confinement.
3

Case 1:20-cv-10753-LTS Document 40 Filed 04/24/20 Page 5 of 6
are critical of “the ongoing and unsafe conditions in which Petitioners are being held,” Doc. # 1
¶ 1, and seek to have those conditions changed in several ways:
• “Ensure that each member of the Class receives an individual supply of hand soap, sufficient to allow frequent hand washing; paper towels; toilet paper; running water; and facial tissue,” id. at 39 (Part B.4 of the prayer for relief);
• “Ensure that all members of the Class, when not in cells with access to hand soap and running water, have access to hand sanitizer containing at least 60% alcohol,” id. (Part B.5 of the prayer for relief);
• “Require that all staff at PCCF wear personal protective equipment, including masks and gloves when interacting with visitors and residents and members of the Class or when touching surfaces in common areas,” id. (Part B.6 of the prayer for relief); and
• “Direct Respondents to clean and disinfect all frequently touched surfaces at PCCF with disinfectant products effective against the virus that causes COVID-19 (at the manufacturer’s recommended concentration), as well as surfaces in common areas, every two hours during waking hours, and at least once during the night,” id. (Part B.7 of the prayer for relief).
This requested relief falls far outside the “core” of habeas corpus—that is, a challenge to
the fact or duration of confinement. See Preiser, 411 U.S. at 484-99. It does not present the closer
question, which many other courts have been forced to confront recently in this context, regarding
whether habeas may be appropriate when no set of changes could ameliorate the alleged
constitutional deprivation. Though filed in a tragic context involving a public health crisis, the
Petition in this case calls for the straightforward application of this district’s longstanding view
that such challenges must be remedied in a civil rights action, not in a habeas action. E.g., Jenkins,
2019 WL 1228093, at *1; Crooker, 2013 WL 101588, at *4; Kamara, 2 F. Supp. 2d at 88–89.
Because Petitioners’ challenge to the conditions of their confinement falls well outside
4

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the core of habeas corpus, the Petition must be denied.4

CONCLUSION For all of the foregoing reasons, and those set forth in Respondent’s first motion to deny, Respondent respectfully requests that the Court deny the Petition for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Respectfully submitted,

ANTONE MONIZ Superintendent of the Plymouth County Correctional Facility

By his attorneys,

ANDREW E. LELLING, United States Attorney

Dated: April 24, 2020

By: /s/ Jason C. Weida Jason C. Weida Assistant U.S. Attorney United States Attorney’s Office 1 Courthouse Way, Suite 9200 Boston, Massachusetts 02210 (617) 748-3180 Jason.Weida@usdoj.gov

4 To be clear, while habeas does not provide a remedy to change the conditions of their confinement, Petitioners are not without a remedy. Petitioners are free to file a complaint under Section 1983. “Section 1983 authorizes a ‘suit in equity, or other proper proceeding for redress,’ against any person who, under color of state law, ‘subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution.’” Nelson v. Campbell, 541 U.S. 637, 643 (2004). Unlike habeas, Section 1983 provides a remedy for “constitutional claims that merely challenge the conditions of a prisoner’s confinement.” Id. 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.”) (internal citation omitted).
5