FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JANE DOE, # 1; JANE DOE, # 2;

NORLAN FLORES, on behalf of

themselves and all others similarly

situated,

Plaintiffs-Appellants/CrossAppellees,

v.

JOHN F. KELLY, Secretary, United

States Department of Homeland

Security; KEVIN K. MCALEENAN,

Acting Commissioner, United States

Customs and Border Protection;

RONALD VITIELLO, Chief, United

States Border Patrol; JEFFREY SELF,

Commander, Arizona Joint Field

Command; PAUL BEESON, Chief

Patrol Agent - Tucson Sector,

Defendants-Appellees/CrossAppellants.

 Nos. 17-15381

17-15383

D.C. No.

4:15-cv-00250-

DCB

OPINION
2 DOE V. KELLY

Appeal from the United States District Court

for the District of Arizona

David C. Bury, Senior District Judge, Presiding

Argued and Submitted October 16, 2017

San Francisco, California

Filed December 22, 2017

Before: Richard C. Tallman and Consuelo M. Callahan,

Circuit Judges, and David A. Ezra,*

 District Judge.

Opinion by Judge Callahan

SUMMARY**

Civil Rights

The panel affirmed the district court’s preliminary

injunction in an action brought by civil detainees confined in

U.S. Customs and Border Protection facilities within the

Tucson Sector of the U.S. Border Patrol who alleged they

were subjected to inhumane and punitive treatment.

The district court granted a preliminary injunction

requiring that defendants provide detainees with mats and

* The Honorable David A. Ezra, United States District Judge for the

District of Hawaii, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
DOE V. KELLY 3

blankets after 12 hours. Defendants appealed, alleging that

the district court misapprehended the standard set forth in

Bell v. Wolfish, 441 U.S. 520 (1979), and that the order was

too rigid and burdensome. Plaintiffs also appealed, alleging

that the district court should have ordered defendants to

provide the detainees with beds and mattresses, allow them

access to showers, and deliver adequate medical care through

medical professionals.

The panel held that the district court carefully considered

plaintiffs’ allegations of constitutional violations, recognized

the guidance provided by the Supreme Court in Bell, and

issued a limited preliminary injunction requiring defendants

to provide detainees with mats and blankets after 12 hours. 

Defendants failed to show that, in doing so, the district court

misapprehended Bell or that the preliminary injunction was

overly rigid or burdensome. 

The panel found unpersuasive plaintiffs’ assertions that

the district court should have required defendants to provide

detainees with beds, showers, and medical treatment provided

by medical professionals. The panel held that the district

court recognized the unique mission of the Border Patrol and,

at least for the purposes of a preliminary injunction,

reasonably balanced the government’s interests and the

detainees’ constitutional rights.
4 DOE V. KELLY

COUNSEL

James R. Sigel (argued), Robert J. Esposito, and Elizabeth G.

Balassone, Morrison & Foerster LLP, San Francisco,

California; Deanne E. Maynard, Sophia M. Brill, Bryan J.

Leitch, and Lena H. Hughes, Morrison & Foerster LLP,

Washington, D.C.; Louise C. Stoupe and Pieter S. de Ganon,

Morrison & Foerster LLP, Tokyo, Japan; Colette Rainer

Mayer, Morrison & Foerster LLP, Palo Alto, California;

Linton Joaquin, Karen C. Tumlin, and Nora A. Preciado,

National Immigration Law Center, Los Angeles, California;

Kathleen E. Brody, Daniel J. Pochoda, and Brenda Muñoz

Furnish, ACLU Foundation of Arizona, Phoenix, Arizona;

James J. Cekola, Morrison & Foerster LLP, San Diego,

California; Mary A. Kenney, Melissa E. Crow, and Aaron

Reichlin-Melnick, American Immigration Council,

Washington, D.C.; Elisa Della-Piana and Megan Sallomi,

Lawyers’ Committee for Civil Rights of the San Francisco

Bay Area, San Francisco, California; Abigail L. Colella,

Morrison & Foerster LLP, New York, New York; for

Plaintiffs-Appellants/Cross-Appellees.

Christina Parascandola (argued), Trial Attorney; Sarah B.

Fabian, Senior Litigation Counsel; William C. Peachey,

Director; Chad A. Readler, Acting Assistant Attorney

General, Civil Division; Office of Immigration Litigation,

District Court Section, United States Department of Justice,

Washington, D.C.; for Defendants-Appellees/CrossAppellants.
DOE V. KELLY 5

OPINION

CALLAHAN, Circuit Judge:

The influx of detainees in the Tucson Sector of the U.S.

Border Patrol in 2015 resulted in Defendants (federal

government officials and agents) holding detainees being

processed for longer periods of time in overcrowded and

unsanitary cells at eight different stations. Plaintiffs brought

this action alleging inhumane and punitive treatment, and

seeking injunctive relief. The district court granted a

preliminary injunction requiring that Defendants provide

detainees with mats and blankets after 12 hours. Defendants

appeal, alleging that the district court misapprehended the

standard set forth in Bell v. Wolfish, 441 U.S. 520 (1979), and

that the order was too rigid and burdensome. Plaintiffs also

appeal, alleging that the district court should have ordered

Defendants to provide the detainees with beds and mattresses,

allow them access to showers, and deliver adequate medical

care through medical professionals. We hold the district

court did not abuse its discretion and properly applied

precedent such that neither side has shown that the limited

preliminary injunction is illogical, implausible, or without

support in the record. United States v. Hinkson, 585 F.3d

1247, 1262 (9th Cir. 2009) (en banc).

I. BACKGROUND

Plaintiffs filed this action in the United States District

Court for Arizona on behalf of detainees confined in U.S.

Customs and Border Protection Facilities within the Tucson

Sector of the U.S. Border Patrol. The Border Patrol’s mission

is to detect and prevent the entry of certain

individuals—including terrorists, unauthorized aliens, drug
6 DOE V. KELLY

smugglers, and other criminals—into the United States

between ports of entry. The Tucson Sector patrols 262 miles

of the United States-Mexico border in southern Arizona, and,

according to Defendants, in fiscal year 2016, “apprehended

64,891 individuals, the second highest of any Border Patrol

sectors.” The number of individuals apprehended in the

Tucson Sector varies widely. Defendants represent that

between 2009 and 2016, apprehensions each month ranged

“from a high of 31,432 in March 2009, to a low of 4,071 in

July 2015.”

When a Border Patrol agent apprehends an individual, the

person is taken to one of eight stations in the Tucson Sector. 

At the station, the Border Patrol processes the detainee,

ascertaining the individual’s identity and immigration and

criminal history. The individual is then repatriated,

transferred into the custody of another agency, referred for

prosecution in accordance with the law or, in rare

circumstances, released.

Plaintiffs alleged that the conditions in the stations were

deplorable and that it took up to three days for individuals to

be processed before transfer. Plaintiffs alleged that:

detainees are packed into overcrowded and

filthy holding cells, stripped of outer layers of

clothing, and forced to endure brutally cold

temperatures. They are denied beds, bedding,

and sleep. They are deprived of basic

sanitation and hygiene items like soap,

sufficient toilet paper, sanitary napkins,

diapers, and showers. And they are forced to

go without adequate food, water, medicine,

and medical care.
DOE V. KELLY 7

In the fall of 2016, the district court certified the case as a

class action. Plaintiffs then sought a preliminary injunction.

II. THE DISTRICT COURT’S ORDERS

A. The Standards for Reviewing Conditions of

Confinement

After setting forth the appropriate standards for issuing a

mandatory preliminary injunction, the district court

considered the standards for reviewing conditions of

confinement. It first noted that when the government takes a

person into custody, it must provide for the person’s “basic

human needs—e.g. food, clothing, shelter, medical care, and

reasonable safety.” DeShaney v. Winnebago Cnty. Dep’t of

Soc. Servs., 489 U.S. 189, 199–200 (1989); see also Farmer

v. Brennan, 511 U.S. 825, 832 (1994).

Citing Bell v. Wolfish, 441 U.S. 520, 535 (1979), among

other cases, the district court concluded that when evaluating

the constitutionality of pretrial detention conditions, it had to

determine whether the conditions amounted to punishment. 

Citing Demery v. Arpaio, 378 F.3d 1020, 1030 (9th Cir.

2004), the district court explained that “[t]o constitute

punishment, the governmental action must cause harm or

disability that either significantly exceeds or is independent

of the inherent discomforts of confinement.” The court noted

that even in the absence of evidence of express intent, it may

infer an intent to punish “if the restriction or condition is not

reasonably related to a legitimate governmental objective or

is excessive in relation to the legitimate governmental

objective.” See Pierce v. Cnty. of Orange, 526 F.3d 1190,

1205 (9th Cir. 2008).
8 DOE V. KELLY

The district court noted that the Supreme Court held that

“[m]aintaining institutional security and preserving internal

order and discipline are essential goals that may require

limitation or retraction of the retained constitutional rights of

both convicted and pretrial detainees.” Bell, 441 U.S. at 546. 

Indeed, the Supreme Court commented that “in the absence

of substantial evidence in the record to indicate that officials

have exaggerated their responses to these conditions, courts

should ordinarily defer to their expert judgment in such

matters.” Id. at 540 n.23 (quoting Pell v. Procunier, 417 U.S.

817, 827 (1974)).

Based on these cases, the district court opined that a

condition of confinement “violates the Fifth and Fourteenth

Amendments if it imposes some harm to the detainee that

significantly exceeds or is independent of the inherent

discomforts of confinement and is not reasonably related to

a legitimate governmental objective or is excessive in relation

to the legitimate governmental objective.” See Kingsley v.

Hendrickson, 135 S. Ct. 2466, 2473–74 (2015). This led the

court to reason that decisions defining the constitutional

rights of prisoners establish a floor for Plaintiffs’

constitutional rights. See Padilla v. Yoo, 678 F.3d 748, 759

(9th Cir. 2012). The district court concluded that it could

presume Plaintiffs were being subjected to punishment “if

they are confined in conditions identical to, similar to, or

more restrictive than those under which the criminally

convicted are held.” See Sharp v. Weston, 233 F.3d 1166,

1172–73 (9th Cir. 2000).

The district court then observed:

This is precisely the case here. Assistant

Chief Patrol Agent for the Tucson Sector,
DOE V. KELLY 9

George Allen, admitted, when this Court

asked him to compare the conditions of

confinement at Tucson Sector Border Patrol

stations with those afforded criminal detainees

at the Santa Cruz County jail, that in jail,

detainees have a bed, with blankets, clean

clothing, showers, toothbrushes and

toothpaste, warm meals, and an opportunity

for uninterrupted sleep. Likewise, the

conditions of confinement . . . improve once

they are transferred from Border Patrol

holding cells to detention centers operated by

the United States Marshals.

The district court recognized that, in assessing the

constitutionality of the conditions of confinement in the

Border Patrol stations, due consideration had to be given to

the nature, purpose and duration of an individual’s time in the

station. The stations are 24-hour operations where many

detainees arrive in the evening and at night. The holding

rooms are not designed for sleeping and have no beds. 

“Defendants assert[ed] that providing sleeping facilities and

turning off lights would require structural changes at the

facilities, create safety risks, and impede its purpose to

provide 24-7 immigration processing.” Defendants explained

that when a detainee arrives at a station, outer-clothing is

removed for security reasons, and detainees are placed into

group-holding rooms based on age, gender, family units, or

suspected criminal status. Processing includes obtaining

biographical information and biometrics, submitting this

information through the e3Nex Generation Identification

system to determine prior criminal and immigration arrests,

preparing an arrest report, immigration processing, consular

notifications, and communication with family members and
10 DOE V. KELLY

attorneys as appropriate. Processing, if uninterrupted, absent

any remarkable criminal or immigration history, takes

between two and two and one-half hours.

But, there usually are interruptions. Discovery revealed

that between June 10, 2015, and September 28, 2015, only

about 3,000 of approximately 17,000 detainees were

processed out of detention within 12 hours. About 8,644

detainees were held at a Border Patrol station up to 23 hours;

6,807 were held for up to 47 hours; 1,207 were held up to

71 hours; and 476 were held for 72 hours or more.

The district court accepted for purposes of the preliminary

injunction that the Border Patrol’s 2008 Hold Rooms and

Short Term Custody Policy (2008 Policy) and the National

Standards on Transport, Escort, Detention and Search (TEDS

standards) provided for constitutional conditions of

confinement. Although Defendants assert that these

guidelines establish the status quo, the district court found

that Plaintiffs had presented persuasive evidence that the

basic human needs of detainees were not being met by

Defendants’ current practices.

B. Plaintiffs’ Specific Complaints

1. Sleeping. The district court recognized that other

detention facilities must provide individuals held overnight

with beds and mattresses, and, thus, the absence of either

violates the detainees’ due process rights. See Thompson v.

City of Los Angeles, 885 F.2d 1439, 1448 (9th Cir. 1989),

overruled on other grounds by Bull v. City & Cty. of San

Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc); Anela v.

City of Wildwood, 790 F.2d 1063, 1069 (3rd Cir. 1986). The

court noted that of the 16,992 detainees held between June 10
DOE V. KELLY 11

and September 28, 2015, only 122 were recorded to have

received a mat, and the others’ bedding needs were met with

only a Mylar sheet/blanket. The court found that this was

contrary to both the 2008 Policy and the TEDS standards. It

further noted:

the harshness caused by the lack of mats and

the inadequacy of the Mylar blankets is

compounded by the Defendants’ practices of

keeping holding-cells lights turned on 24-7,

feeding one of the three regular hot meals to

detainees at 4:00 a.m., moving detainees in

and out of holding cells throughout the night

for processing, overcrowding cells which

causes people to lie cramped together and

next to toilet facilities or to sit or stand up,

and because the hard concrete floors and

benches retain the cold caused by low

thermostat temperatures and make it too hard

and cold to sleep.

The district court found the holding cells to be spatially

inadequate. The district court determined that “the holdingcell capacity numbers cannot accommodate the number of

detainees being detained longer than twelve hours because

detention of this duration requires them to lie down to sleep

rather than sit up.”

Defendants’ expert opined that the Border Patrol facilities

were on par with short-term holding cells typically used

during the booking process in jail facilities. The district court

rejected the comparison because the booking process at a jail

facility usually takes hours, instead of days. The district

court, however, accepted that the holding cells need to be
12 DOE V. KELLY

illuminated for security. On the other hand, it found no

security or administrative reason “to wake up detainees by

scheduling one of the three burrito meals at 4:00 a.m.”

The court also found that the Mylar blankets do not

provide insulation from the cold concrete, but merely prevent

evaporation and retain 80% of body heat when wrapped

around a person. In light of the sedentary nature of detention,

the district court required that Defendants continue to monitor

cell temperatures, which were maintained at temperatures

between 71 and 74 degrees. The district court concluded that

Defendants were violating Plaintiffs’ constitutional right to

sleep, and ordered that Defendants provide detainees held for

longer than 12 hours mats and Mylar blankets.

2. Sanitation. The district court explained that a sanitary

environment is a basic human need that must be met by all

penal institutions. See Keenan v. Hall, 83 F.3d 1083, 1091

(9th Cir. 1996). Plaintiffs’ expert opined that Defendants

were not complying with their own standards, noting that:

(a) all areas, including floors and toilets, were badly soiled;

(b) hold rooms lacked trash receptacles; (c) toilet stalls lacked

waste receptacles for sanitary napkins, diapers, and other

bathroom waste; (d) cleaning supplies were not segregated

from food storage; and (e) “cleaning crews did not appear to

clean and sanitize common-touch points in detainee areas.” 

Although prison standards require one toilet for every

12 male prisoners and one toilet for every 8 female prisoners,

in most cases the number of toilets in each holding room was

inadequate. One large holding room with a capacity of 88

had one working toilet and one non-flushing toilet. 

Moreover, many toilets were combined sink/toilet fixtures

with the sink fixture on top of the toilet creating a potential

for contamination.
DOE V. KELLY 13

Defendants responded that all but one holding cell are

cleaned twice a day, and that they had begun placing trash

receptacles in the holding cells. Defendants further asserted

that soap had been made available to detainees upon request,

and that, where water fountains were inoperable, water

coolers had been placed in the cells.

The district court preliminarily ordered “compliance

monitoring to ensure detainees have access to working toilets

and sinks, soap, toilet paper, garbage receptacles, tooth

brushes and toothpaste, feminine hygiene items, baby food,

diapers and clean drinking water.”

The district court was also critical of the lack of shower

facilities. It noted that a person who had been trudging across

the Arizona desert would likely be dirty, but only two stations

had shower facilities, and those were sparsely used, generally

for detainees who were suspected of having scabies. Only

115 detainees out of the 16,992 held between June 10 and

September 28, 2015 were given showers.

Addressing the lack of shower facilities, the district court

noted that jail standards require access to showers and

washbasins with hot and cold running water, with daily

showers available. Defendants responded that the lack of

showers was not a problem because most detainees are

transferred within 72 hours and TEDS standards only require

that reasonable efforts be made to provide showers for

detainees approaching 72 hours of detention.

The district court was critical of Defendants’ failure to

recognize the basic human need to wash during detention, but

also noted that courts are extremely reluctant to find

constitutional violations based on temporary deprivations of
14 DOE V. KELLY

personal hygiene. Accordingly, the court preliminarily ruled

that Defendants “need only provide some means or materials

for washing and/or maintaining personal hygiene when

detainees are held longer than 12 hours.”

3. Medical Care. The parties agreed that Defendants are

constitutionally required to provide ready access to medical

care, but disagreed on the contours of this right. Plaintiffs

challenged the adequacy of Defendants’ intake screening,

alleging that: (1) the screening is performed by Border Patrol

agents, not doctors, nurses, or other specially trained

personnel; (2) Defendants do not maintain a medical

treatment program capable of responding to emergencies

because they do not have medical staff on site; and (3) “the

practice of confiscating incoming detainees’ medication

creates impermissible and heightened risk that detainees will

experience a medical emergency.”

Defendants responded that TEDS standards provide a

system of ready access to adequate medical care. Before a

detainee is placed in a hold room, an agent questions the

individual and visually inspects for any sign of injury, illness,

or physical or mental health concerns. Observed or reported

injuries or illnesses are to be communicated to a supervisor

and documented in the appropriate electronic system. 

Treatment plans and medication should accompany detainees

when they are transferred or discharged. Defendants asserted

they have personnel at the stations who can treat emergencies,

and routinely transfer detainees to hospitals for emergency

care.

Plaintiffs’ expert, however, claimed that there was no

evidence of any formalized screening process being carried

out by agents at the detention centers. The e3DM data system
DOE V. KELLY 15

reflected around 527 incidents of medical treatment for

approximately 17,000 detainees. The expert explained there

are two components to screening: (1) immediate medical

triage to determine whether there is any issue that would

preclude acceptance into the facility, and (2) a more thorough

medical and mental health screening. The expert was critical

of the field screening because it was not done pursuant to any

standardized protocol, and therefore did not adequately

identify urgent or emergent health care needs or potentially

communicable diseases.

The district court preliminarily required compliance with

TEDS standards, “including measures to ensure the Medical

Screening Form currently being used by Defendants at some

stations is used in all stations, and that the form ask questions

to ensure compliance with TEDS standards for screening and

delivering medical care.”

C. Preliminary Injunctive Relief

Having held that Plaintiffs were likely to succeed on the

merits, the district court considered the other criteria for

issuing a preliminary injunction. It held that Plaintiffs were

likely to suffer irreparable harm due to the deprivation of

constitutional rights in the conditions of confinement, which

cannot be adequately remedied through damages. The

balance of equities and public interest favored relief, in part,

because the “government suffers no harm from an injunction

that merely ends unconstitutional practices and/or ensures

that constitutional standards are implemented.” See

Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013). 

The district court concluded that Defendants “cannot sidestep

reality by relying on the structural limitations of the Border

Patrol detention facilities.” Rather, “[i]f detainees are held
16 DOE V. KELLY

long enough to require them to sleep in these facilities, take

regular meals, need showers, etc., then the Defendants must

provide conditions of confinement to meet these human

needs.” Although it found no evidence of intent to punish,

the court found “no objectively reasonable relationship

between 24-7 immigration processing or security and the

conditions of confinement which Plaintiffs have preliminary

shown exist in the Tucson Sector Border Patrol stations

related to sleeping, sanitation, food, and medical care.”

The court ordered:

1. Clean bedding, which Defendants assert

they are providing to all detainees, must

include a mat and a Mylar blanket for all

detainees being held longer than 12 hours.

2. Personal hygiene needs of detainees held

longer than 12 hours include the need to wash

or clean themselves.

3. Defendants shall implement the universal

use of their Medical Screening Form at all

stations and ensure that the form questions

reflect the TEDS requirements for delivery of

medical care to detainees.1

1 The district court further ordered that “Defendants shall monitor for

compliance the following: availability of working sinks and toilets and/or

other materials sufficient to meet the personal hygiene needs of detainees

on a per cell per station basis; cell temperatures; cell sanitation and

cleanliness; delivery to detainees of bedding, including mats, personal

hygiene items such as toilet paper, toothbrushes and toothpaste, feminine

hygiene items, baby food, diapers, and meals.”
DOE V. KELLY 17

D. The January 3, 2017 Order

Defendants sought reconsideration and modification of

the preliminary injunction. The motion outlined the Border

Patrol’s compliance with the preliminary injunction. 

Detainees were being provided with mats, showers were

being offered to some detainees and others were being given

body wipes to clean themselves, all stations were provided

with the current medical screening forms, and all stations had

been instructed to monitor for compliance with TEDS

standards for medical screening. Defendants, however,

sought reconsideration asserting that: (a) allowing detainees

to lie down to sleep had significantly reduced the holding cell

capacity numbers, and had interfered with their ability to

transfer individuals efficiently; (b) compliance had increased

processing time; (c) compliance had added obstacles to

Defendants’ compliance with the Prison Rape Elimination

Act, which requires separating and monitoring vulnerable

populations; and (d) compliance had resulted “in prosecutions

forfeited for lack of timely presentment.”

The district court denied the request for reconsideration. 

It noted that providing detainees with mats and allowing them

to lie down to sleep would always require that Defendants

acquire more space. The district court was not persuaded by

Defendants’ assertion that due to their 24-7 operational needs,

they could not separate out detainees who approach 12 hour

detentions. The court noted that it had seen empty cells

adjacent to full cells and that Defendants admitted to

separating out at-risk vulnerable population detainees. The

court further stated that Defendants sought to suspend the 12-

hour limit “without offering any plan or time-line for full

compliance,” and the court “cannot suspend what it believes

are constitutional rights.”
18 DOE V. KELLY

The district court did clarify its order. It explained that:

(1) for detainees held more than 12 hours, “Defendants must

provide bedding, including mats and Mylar blankets and

some means to maintain personal hygiene;” (2) the court “did

not order Defendants to provide showers;” and (3) “the 12-

hours begins to run from when the detainee arrives at the

station.”2

III. ANALYSIS

A. Standard of Review

Plaintiffs are entitled to preliminary injunctive relief if

they show: (1) likely success on the merits; (2) likely

irreparable harm absent preliminary relief; (3) the balance of

equities tips in their favor; and (4) an injunction is in the

public’s interest. Pimental v. Dreyfus, 670 F.3d 1096,

1105–06 (9th Cir. 2012); Sierra Forest Legacy v. Rey,

577 F.3d 1015, 1021 (9th Cir. 2009). Under our “sliding

scale” approach, a stronger showing of one element may

offset a weaker showing of another, as long as plaintiffs

“establish that irreparable harm is likely.” All. for the Wild

Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

A preliminary injunction should be set aside only if the

district court “abused its discretion or based its decision on an

erroneous legal standard or on clearly erroneous findings of

fact.” Puente Arizona v. Arpaio, 821 F.3d 1098, 1103 (9th

2 Out of an abundance of caution, Defendants had initially calculated

the 12 hours from the moment an individual was apprehended, rather than

the individual’s “book-in to a station.” The clarification accommodated

the Border Patrol’s concern that apprehensions often occur in remote areas

long distances from their stations.
DOE V. KELLY 19

Cir. 2016) (quotation omitted). Legal conclusions are

reviewed de novo. Pimental, 670 F.3d at 1105. A district

court “necessarily abuses its discretion when it bases its

decision on an erroneous legal standard.” Harris v. Bd. of

Supervisors of Los Angeles Cnty., 366 F.3d 754, 760 (9th Cir.

2004) (quoting Rucker v. Davis, 237 F.3d 1113, 1118 (9th

Cir. 2001) (en banc), rev’d on other grounds, Dep’t of Hous.

& Urban Dev. v. Rucker, 535 U.S. 125 (2002).

If the district court identifies the correct legal standard, “it

will not be reversed simply because the appellate court would

have arrived at a different result if it had applied the law to

the facts of the case.” Am. Trucking Ass’ns, Inc. v. City of

Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quotation

omitted). Rather, the court only abuses its discretion when its

application of the standard is “illogical, implausible, or

without support in inferences that may be drawn from the

record.” United States v. Hinkson, 585 F.3d 1247, 1262 (9th

Cir. 2009) (en banc).

Furthermore, we have held that the district court has

broad discretion to fashion remedies once constitutional

violations are found. Hoptowit v. Ray, 682 F.2d 1237, 1245

(9th Cir. 1982), overruled on other grounds by Sandin v.

Conner, 515 U.S. 472 (1995).

B. The District Court Properly Read and Applied

Bell v. Wolfish

On appeal, Defendants assert that the district court

misinterpreted and misapplied Bell. They argue that the court

disregarded the Supreme Court’s caution against courts

becoming enmeshed in the minutiae of facility operations and
20 DOE V. KELLY

“failed to take any meaningful account of the unique nature

of detention at Border Patrol facilities.”

Defendants’ arguments are not well taken. The district

court repeatedly cited Bell and recognized the Court’s

admonition to defer to legitimate governmental objectives. 

However, the Supreme Court said much more. It set forth the

standard for determining whether a condition of confinement

was “imposed for the purpose of punishment or whether it is

but an incident of some other legitimate governmental

purpose.” 441 U.S. at 538. The Court noted that a condition

would not constitute punishment if it was “reasonably related

to a legitimate governmental objective.” Id. at 539. But if a

condition “is arbitrary or purposeless—a court permissibly

may infer that the purpose of the government action is

punishment that may not constitutionally be inflicted on

detainees.” Id. The district court applied this standard.

At its core, Defendants’ objection that the district court

“failed to take any meaningful account of the unique nature

of detention at Border Patrol facilities” is not a challenge to

the district court’s interpretation of Bell, but a disagreement

with the application of Bell to the facts in this case. As such,

Defendants must show an abuse of discretion—that the

district court’s order “is illogical, implausible, or without

support in inferences that may be drawn from the record.” 

Hinkson, 585 F.3d at 1262.

The record reveals that the district court sculptured the

relief granted to reflect the unique features of Border Patrol

stations and field operations. It did so by requiring only mats

and Mylar blankets instead of beds and mattresses, by

allowing body wipes for cleaning rather than showers, and by

allowing non-medical personnel to medically screen
DOE V. KELLY 21

detainees.3 The limited injunction reflects the district court’s

careful consideration of the unique nature of Border Patrol

stations in light of Bell.

The only aspect of the preliminary injunction that

Defendants specifically challenge on appeal is the allegedly

“rigid” requirement that they provide mats to all individuals

detained for 12 hours or more. However, Defendants do not

contest that detainees may sleep while in custody, or even

that the 12-hour mandate might be workable in some cases. 

Rather, they argue that the rule “ignores the purpose of

Border Patrol custody”; that it might be counterproductive if

an individual arrives at the station in the middle of the night

and is likely to be transferred in the afternoon; and, lacks a

safety valve for a “surge” or other unforeseen situations.

These arguments are not persuasive. First, it is not

unreasonable to infer that a person who has been detained in

a station for over 12 hours (after having been awake for some

period of time before his detention) has a right to lie down

and rest, even in the middle of the day. Second, it is by no

means clear that providing detainees with mats after 12 hours

is more burdensome than providing them with mats at any

other time.4 Third, there is little to no evidence that providing

detainees with mats interferes with the Border Patrol’s

identification and processing of individuals. Fourth, there is

nothing in the record to suggest that Defendants ever sought

3

In addition, the district court allowed the lights in the holding cells

to remain on all night. Plaintiffs do not challenge this on appeal.

4 At oral argument, Defendants’ counsel stated that detainees are

presently being given a blanket and mat when initially admitted to a

holding cell.
22 DOE V. KELLY

“surge” protection from the district court. Indeed, the Motion

for Clarification alleged that providing detainees with mats

would reduce the holding cells’ capacities. It did not allege

that providingmats was in itself burdensome or that there was

some need for flexibility.

In light of the deference due the district court in

fashioning preliminary relief, Hinkson, 585 F.3d at 1262,

Defendants have not shown that the district court abused its

discretion in granting the limited preliminary injunction.5

C. Plaintiffs Have Not Shown that the District Court

Abused its Discretion in Issuing Only a Limited

Preliminary Injunction

Plaintiffs have not shown that the district court’s

application of the law concerning beds, showers, and medical

care to the facts in this case is illogical, implausible, or

“without support in inferences that may be drawn from the

facts in the record.” Id.

5 Defendants’ concerns that the preliminary injunction is “a

derogation of fundamental principles of national sovereignty” or may

violate the Immigration and Nationality Act because courts are prohibited

“from fashioning class wide injunctive relief that would enjoin or restrain

the operation of the detention provisions of the Act,” overstates the

situation and the law. “Plaintiffs do not seek to prevent Defendants from

inspecting, apprehending, excluding, or removing aliens,” and do not

“challenge the government’s power to detain individuals who are

suspected of crossing the nation’s borders without proper authorization.” 

Defendants have offered no case law suggesting that constitutional

obligations may not indirectly implicate the manner and means by which

the government carries out its responsibilities at the border. See

Rodriguez v. Hayes, 591 F.3d 1105, 1120–21 (9th Cir. 2010).
DOE V. KELLY 23

1. Beds. Plaintiffs argue that detainees held overnight

are entitled to beds and mattresses. See Thompson, 885 F.2d

at 1448 (noting that “a jail’s failure to provide detainees with

a mattress and bed or bunk runs afoul of the commands of the

Fourteenth Amendment”). But given the unique purpose of

Border Patrol stations and Defendants’ limited resources, the

district court reasonably limited preliminary relief to mats

and Mylar blankets. The purpose of the stations is to process

the detainees as efficiently as possible so that they may be

transferred to other facilities or released. Defendants assert

that, absent the influx of detainees in 2015, processing a

person should have taken two or three hours. Thus, were the

stations operating as intended, there would never have been

any need for a bed or a mat. Accordingly, the stations are not

set up to accommodate beds. Defendants have neither the

space for beds and mattresses, nor, presumably, beds and

mattresses that might be immediately moved to the stations. 

Under these conditions, granting Plaintiffs the immediate

preliminaryrelief of mats and Mylar blankets was reasonable. 

It provides Plaintiffs with actual relief without imposing a

huge cost on Defendants to alleviate what might be a

temporary need. Evidence as to whether the need was likely

to continue would certainly be relevant to the district court’s

determination of Plaintiffs’ request for a permanent

injunction. However, the possibility of such evidence does

not undermine the logic and reasonableness of the district

court’s preliminary injunction, which provided immediate

and effective, if limited, relief by requiring Defendants to

provide mats and blankets.

2. Showers. Plaintiffs assert that detainees have a right

of access to showers. See, e.g., Toussaint v. McCarthy,

597 F. Supp. 1388, 1399 (N.D. Cal. 1984) (holding that

“minimum standards of decency require that lockup inmates
24 DOE V. KELLY

without hot running water in their cells be accorded showers

three times per week in facilities reasonably free of standing

water, fungus, mold and mildew”), aff’d in part and rev’d in

part by Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.

1986). However, practical considerations support the district

court’s grant of limited relief allowing Defendants to provide

Plaintiffs with body wipes to maintain a minimal level of

personal hygiene. Apparently, only two of the eight stations

even have showers. Moreover, unlike body wipes (and mats

and blankets), which can be efficiently distributed, providing

showers for thousands of detainees raises substantial security

and logistical concerns. Diverting Defendants’ limited

human resources to provide detainees with showers would

almost certainly slow down the processing of detainees,

thereby encumbering Defendants’ primary mission.

Furthermore, although Plaintiffs have a right to hygiene,

the Constitution does not requires access to a shower within

12 hours or even 24 hours. The district court in Toussaint,

held that inmates were entitled to showers three times a week. 

597 F. Supp. at 1399. But case law does not compel the

conclusion that they have a constitutional right to a shower

when detained for fewer than two days.

3. Medical Care. There is no question that detainees are

entitled to “adequate medical care.” See Toussaint, 801 F.2d

at 1112 (“If plaintiffs correctly contend that unqualified

personnel regularly engage in medical practice, precedent

indicates that the prison health care delivery system may

reflect deliberate indifference to plaintiffs’ medical needs.”);

Hoptowit, 682 F.2d at 1252 (“Medical staffing is inadequate.

Medical services are provided by nurse practitioners or

physician assistants (mid-level practitioners), rather than

physicians.”); Gibson v. Cty. of Washoe, 290 F.3d 1175,
DOE V. KELLY 25

1187–89 (9th Cir. 2002). However, Plaintiffs have failed to

show that the district court’s determination is not a reasonable

application of case law to the particular facts in this case. In

particular, precedent allows considerable flexibility as to

when and how constitutionally “adequate medical care” is

provided.

The cases cited by Plaintiffs concern settings different

from those at issue here, and do not hold that all medical

screening must be done by medical professionals. First, 

Hoptowit concerned medical care at the Washington State

Penitentiary. 682 F.2d at 1245. We agreed with the district

court that the existing conditions violated the Eighth

Amendment. Id. (“The Eighth Amendment requires that

prison officials provide a system of ready access to adequate

medical care.”). However, we held that remedies ordered by

the district court were overbroad, and that “the court could go

no farther than to bring the medical services up to the

constitutional minima.” Id. Although prisoners must be able

“to make their medical problems known to the medical staff,”

the referrals may be to “facilities outside the prison if there is

reasonably speedy access to these other physicians or

facilities.” Id. We were particularly critical of the district

court’s order that the penitentiary hire full time physicians,

stating that the court must first determine that the

penitentiary’s use of outside services “could not meet the

constitutional minimum.” Id. at 1254.6

6

 We explained:

The district judge could find that in-prison staff was

necessary if he found that the State’s approach was

necessarily inadequate. He made no findings, however,

concerning the availability and adequacy of treatment

outside the prison. It could well be that with improved
26 DOE V. KELLY

Second, Toussaint concerned conditions of confinement

at four California prisons. 801 F.2d at 1085. Health care at

the Folsom Prison was only one of the issues the Ninth

Circuit addressed. Id. at 1111–12. We recognized that

denying prisoners medical attention may constitute a

violation of the Eighth Amendment “if the denial amounts to

deliberate indifference to serious medical needs of the

prisoners.” Id. at 1111 (citation omitted). However, we

remanded the plaintiffs’ claim that the defendants placed “an

unconstitutional degree of reliance on MTAs [medical

technical assistants], registered nurses (RNs) and inmate

workers.” Id. We explained:

Defendants respond that MTAs, RNs and

inmates are qualified to perform a number of

services. If plaintiffs correctly contend that

unqualified personnel regularly engage in

medical practice, precedent indicates that the

prison health care delivery system may reflect

deliberate indifference to plaintiffs’ medical

needs. Therefore, we must remand for entry

mid-level staffing in the prison, improved

transportation, and an adequate plan for medical

treatment in the community, the approach taken by the

State would be constitutionally permissible. Before the

district judge ordered the prison to hire in-house

physicians and effectively scrap its approach to medical

services, he should have first determined that this

approach could not meet the constitutional minimum. 

Absent such a finding, the district court should have

ordered the prison officials to improve the in-house

staffing and procedures within the framework of the

penitentiary’s approach to medical services.

Hoptowit, 682 F.2d at 1254.
DOE V. KELLY 27

of explicit factual findings regarding the

nature of services performed by MTAs, RNs,

and inmates, their level of medical

qualification, and the level of qualification

required to adequately render the services that

they perform.

Id. at 1111–12 (citation omitted). Thus, not all use of

“unqualified” medical personnel is prohibited by the

Constitution. Rather, Toussaint proscribes having

“unqualified personnel regularly engage in medical practice.”

We find the third case cited by Plaintiffs, Gibson, to be so

different from the case before us as to have little application. 

290 F.3d 1175. Stephen Gibson, who suffered from manic

depressive disorder, died of a heart attack while resisting

being moved to a special watch cell in the county jail. Id. at

1181–83. His wife and children filed a § 1983 due process

action against the Washoe County Sheriff’s Department

alleging excessive force, deliberate indifference to Stephen’s

serious mental health condition, and that the deputies’ actions

resulted from the practices of the Sheriff’s Department. Id.

at 1184. The district court granted summary judgment for the

defendants. Id. at 1185. We reversed in part, holding that the

County, but not the individual deputies, could be liable for

deliberate indifference. Plaintiffs cite Gibson as establishing

a right, at the intake stage, “to competent treatment

encompass[ing] a right to prompt screening by medical staff,

which is necessaryto identify health emergencies, medication

needs, and contagious diseases requiring quarantine.” 

Plaintiffs overlook that, in Gibson, we determined that the

County’s potential liability for deliberate indifference was

based on review of the County’s past practices and its
28 DOE V. KELLY

policies.7 The record before us does not contain similar

evidence of deliberate indifference by the Border Patrol to the

detainees’ medical needs.

Moreover, while Plaintiffs are entitled to adequate

medical care, our precedent does not require that all stages of

medical care be provided by trained medical staff. Rather,

our opinions in Hoptowit and Toussaint held that, before

directing an agency to retain medical personnel, a court must

first evaluate whether the government’s proposed plan

adequately meets the detainees’ medical needs.

Defendants assert that Border Patrol agents have training

as first responders, and that some have training as EMTs and

Paramedics. They also represent that agents receive “training

to identify communicable diseases and regularly interact with

and observe detainees, and any detainee presenting any

symptoms of such conditions is transferred to a hospital and

provided medical care.”

The record does not indicate that the existing system of

medical care, as directed by the district court, is inadequate. 

The most that Plaintiffs have shown is a low percentage of

7 We noted that it was the County’s policy that the jail’s medical unit

be staffed 24 hours a day by licensed medical personnel and that when

arrested, a person was to be medically screened. Gibson, 290 F.3d at

1183. For many years, the County “had employed . . . a full-time clinical

mental health worker at the jail to perform mental health screening,” but

at the time of Gibson’s death the County did not have a mental health

worker “because of a soured relationship between the jail’s medical staff

and the mental hospital.” Id. at 1184. We stated that “the record suggests

that the County not only knew that it had to treat the mentally ill in order

to avoid harm, but that it had made a practice of ignoring this need.” Id.

at 1191.
DOE V. KELLY 29

the detainees received medical treatment (3%), and a few

incidents of inappropriate action.8Indeed, there is no

evidence of Defendants denying critical medical care to a

detainee with dire consequences. As most detainees are

released within a day or two, medical care may have been

delayed, rather than denied.

In addition, Defendants assert that complying with TEDS

standards should provide detainees with adequate access to

their prescriptions because these standards provide for

detainees’ medications to “be self-administered under the

supervision of an officer/agent,” and both parties’ experts

agreed that “referring a patient to the hospital to obtain a U.S.

prescription” is acceptable.

Plaintiffs’ reply brief reveals little or no evidence of

inadequate medical treatment of detainees. Plaintiffs

question whether Border Patrol agents really receive training

as first responders and note that very few have training as

EMTs and Paramedics. This may be true, but says nothing

about the adequacy of medical care currently delivered. 

Plaintiffs argue that it cannot be true that all medical issues

are referred to the hospital when medical treatment is needed,

8 Plaintiffs relate instances where: (1) the agents withheld a pregnant

woman’s medication even though she yelled in pain, and told her not to

cry because she was just going to be deported; (2) a woman’s medication

for an ovarian cyst was confiscated and withheld for the 12 hours she was

detained; (3) the government confiscated a woman’s migraine-headache

medicine after she turned herself in to the Border Patrol; and (4) the

government ignored a man’s plea for the prescription medication he

needed to treat a painful heart condition. Accepting that these actions

were wrong, Plaintiffs have not shown that the errors were not corrected. 

Moreover, they are not sufficient to establish a practice or policy that

requires preliminary injunctive relief.
30 DOE V. KELLY

because only 527 out of 17,000 detainees were referred to the

hospital. But this low number is not unreasonable given that

over half of the detainees are processed in less than 24 hours. 

Plaintiffs also argue that Defendants overstate their expert’s

claims concerning their ability to identify and treat

communicable diseases. But this is not evidence that

detainees with symptoms of a communicable disease are not

identified, segregated, and treated, if necessary. Finally,

Plaintiffs challenge whether the practice of confiscating

medications at intake is an acceptable practice, and argue that

hearsaydeclarations concerningPlaintiffs’ medication claims

are admissible at a preliminary injunction hearing. Again,

this is not evidence that Defendants have not provided, or will

not provide, adequate medical care.

We do not question that Plaintiffs have real and

substantial concerns with the adequacy of the medical care

provided to detainees. Rather, we hold only that Plaintiffs

have not shown that the district court abused its discretion in

determining, as a preliminary matter, that Defendants, by

complying with the TEDS standards, are providing adequate

medical care. Plaintiffs have not carried their burden of

showing that the district court’s decision is “illogical,

implausible, or without support in inferences that may be

drawn from the record.” Hinkson, 585 F.3d at 1262.

IV. CONCLUSION

This litigation arises out of the influx of detainees in the

Tucson Sector of the U.S. Border Patrol in 2015. The district

court carefully considered Plaintiffs’ allegations of

constitutional violations, recognized the guidance provided

by the Supreme Court in Bell, 441 U.S. 520, and issued a

limited preliminary injunction requiring Defendants to
DOE V. KELLY 31

provide detainees with mats and blankets after 12 hours. 

Defendants have failed to show that, in doing so, the district

court misapprehended Bell or that the preliminary injunction

is overly rigid or burdensome. We also find unpersuasive

Plaintiffs’ assertions that the district court should have

required Defendants to provide detainees with beds, showers,

and medical treatment provided by medical professionals. 

Plaintiffs have not shown that the district court’s

determinations were “illogical, implausible, or without

support in inferences that may be drawn from the record.” 

Hinkson, 585 F.3d at 1262. The district court recognized the

unique mission of the Border Patrol and, at least for the

purposes of a preliminary injunction, reasonably balanced the

government’s interests and the detainees’ constitutional

rights. The district court’s orders are AFFIRMED.