F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J A N E D O E , # 1; J A

N E D O E , # 2; N O R L A N F L O R E S , on behalf of themselves and all others similarly situated, Plaintiffs-Appellants/CrossAppellees

,

v.

J O H N F

. K E L L

Y , Secretary , United States Department of Homeland Security ; K E V I

N K. M C A L E E

N A N , Acting Commissioner, United States Customs and B o rder Protection; R O N A L D V I T I E L L O , Chief, United States B o rder Patrol; J E F F R E Y S E L F , Commander, Ariz ona J oint F ield Command; P A

U L B E E S O N , Chief Patrol Ag ent - Tucson Sector,Defendants-Appellees/CrossA p pellants. Nos. 17-15381

17-15383

D.C. No. 4:15-cv-00250- DCB

OPI NI OND O E V

. K E L L Y 2

A ppeal from the United States District Court

for the District of Ariz o na David C. B ury , Senior District J udg e, Presiding

Arg ued and Submitted October 16, 2017 San F rancisco, California

F iled December 22, 2017

B e fore: Richard C. Tallman and Consuelo M. Callahan, Circuit J udg es, and David A. Ez ra, * District J udg e.

Opinion by

J udg e Callahan

SUMMARY * *

Civil Rights

The panel a ffirmed the district court’s preliminary injunction in an action broug ht by c ivil detainees confined in U.S. Custo m s and B o rder Protection facilities within the Tucson Sector of the U.S. B order Patrol who alleg ed they were subjected to inhumane and punitive treatment.

The district c ourt g ranted a preliminary i n j unction requiring that defendants provide detainees with mats a nd

* T h e H o n orab le Dav id A

. Ezra, Un ited States District J u d g e f o r th e District o f

Haw aii, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D O E V

. K E L L Y 3

blankets after 12 h ours. Defendants appealed, alleg ing that the district court misapprehended t he standard set forth in Bell v. W o l fish

, 441 U.S. 520 (1979), a n d that the order was too rig id and burdensome. Plain tiffs also appealed, alleg ing that the d istrict court should h ave ordered d efendants to provide the detainees with beds and mattresses, allo w them

access to showers, and deliver adequate medical c are throug h medical professionals.

The p anel h eld that the district court carefully considered plaintiffs’ alleg ations of constitutional violations, recog niz ed the g ui d a nce provided by the Supreme Court in B e ll

, a nd issued a limited preliminary injunction requiring defendants
t o provide detainees with mats and blankets after 12 hour s

. Defendants failed to show that, in doing so, the district court misapprehended Bell or that the p r eliminar y injunction was overly rig id or burdensome.

The panel found unpersuasive plaintiffs ’ assertions that the district court should h ave required defendants to provide detainees with beds, showers, and med i c a l t reatment provided by medical p rofessionals. The panel h eld that the district
court r ecog niz ed the u nique mission of the B order Patrol and,
at least for the purposes of a p reliminary injunction, reasonably balanced the g o vernment’s interests and the detainees’ constitutional rig h ts.D O E V

. K E L L Y 4

COUNSEL

J ames R. Sig el (arg

u ed), Robert J

. Esposito, and E liz a beth G

. B alassone, M o r rison & F oerster L L P, San F rancisco, California; Deanne E

. May nard, Sophia M. B rill, B ry an J

. L eitch, and L ena H. Hug h es , Morrison & F oerster L L P, W a shing ton, D .C.; L o uise C. Stoupe and Pieter S. de Ganon, Morrison & F oerster L L P, T oky o, J apan; Colette Rainer May er, Morrison & F oerster L L P, Palo Alto, California; L inton J oaquin, Karen C. Tumlin, and N ora A. Preciado, National I mmig r ation L a

w Cente r , L os A ng eles, California; K a thleen E

. B rody

, Daniel J

. Pochoda, and B renda Muñ o z F urni sh, A CL U F oundation of Ariz ona, Phoenix

, Ariz o na; J ames J

. C ek o la, Morrison & F oerster L L P, San Dieg o, California; Mary A. Kenney
, Melissa E. Crow, and Aaron R e i c h l i n

- M e l n i c k

, A m e r i c a n I m m i g r a t i o n C o u n c i l

, W a shing ton, D.C.; E lisa Della-Pia n a and Meg an Sallomi, L awy e rs’ Committee f

o r Civil Rig h ts o f the San F r ancisco B ay Area, San F r ancisco, California; Ab i ga il L

. Colella, M orrison & F oerster L L P, New York, New Yor k ; f o r Plaintiffs-Appellants/Cross-Appellees.

Christina Parascandola (arg ued), Trial Att o rney ; Sarah B

. F abian, Senior L itig ation Co u nsel; W illiam C. Peachey

, Director; Chad A. Readler

, A c ting Assistant Attorney General, Civil Division; Office of I mmig ration L itig ation, Distric t Court Section, United States D epartment o f J ustice, W a s h i n gt o n , D

. C

. ; f

o r D e f e n d a n t s

- A p p e l l e e s / C r o s s

Appellants.D O E V

. K E L L Y 5

OP INION

CAL L A HAN, Circuit J udg e:

T h e i n flux of detainees in the Tucson Sector of the U

. S

. B order Patrol in 2015 resulted in D efendant s (federal
g ov e rn m ent officials a

n d ag e nts) holding detainees being processed for long er p eriods of time in ov e r c rowded a nd unsanitary cells a t eig ht d ifferent stations. Plaintiffs broug ht this action alleg ing inhumane a n d punitive treatment, a nd seeking injunct ive relief. The district court g ranted a preliminary injunc t ion requiring that D efendants provide detainees with mats a

nd blankets after 12 hours. Defendants

a p p eal, alleg ing that the district court misapprehended t h e standard set forth in Bell v

. W olfish

, 441 U.S. 520 (1979), a nd that the order was too rig id and burdensome. Plaintiffs also appeal, a lleg ing that the district court should have orde red Defendants to p rovide the detainees with beds and mattresses, allow them access to showers, and deliver adequate medical

care throug h medical professionals. W e h o ld the district
court did not abuse its discretion and properly appl i ed precedent such that neither side h a s shown that the limited preliminary injunction is i l l og ical, implausible, or without support in the record. United Sta t es v. Hinkson

, 585 F .3d 1247, 1262 (9th Cir. 2009) (en banc).

I. BACK G R OUND

Plaintiffs filed this action i n the U nited States District Court f o r Ariz ona on behalf of detainees confined in U.S. Customs and B order Protection F a cilities within the T u cson Sector of the U.S. B order Patrol. The B order Patrol’s mission i s t o d e t e c t a n d p r e v e n t t h e e n t r y o f c e r t a i n individuals—including terrorists, unauthoriz ed aliens, d rugD O E V

. K E L L Y 6

smug g lers, and other criminals—into the United Stat e s between ports of entry

. The Tucson Sector patrols 262 miles of the United States-Mex ico b order in southern Ariz ona, and, according to Defendants, in fiscal y e a r 2016, “apprehe nded 64,891 individuals, the s e c o n d hig hest of any B order Patrol sectors.” The number of individ u a l s apprehended in the Tucson Sector varies widely

. Defendants represent that between 2009 and 2016, a p p rehensions each month r a ng ed

“ f rom a h ig h of 3 1,432 in March 2 009, to a low of 4
, 0 7 1 i n J uly 2015.”

W h en a B order Patrol ag e nt apprehends an individual, the
person is taken to one of eig h t stations in the Tucson Sector. At the station, the B o rder Patrol p r ocesses the detainee, ascertaining the individual’s identity a nd immig ration a

nd criminal history

. The ind i v i d ual is then repatriated,
t ransferred into the c ustody of another ag ency , referred f o r prosecution in accorda nce with the law o r, in rare circumstances, released.

Plaintiffs alleg ed that the conditions in the stations were deplorable and that it took u p to three day s for individuals to be processed before transfer. Plaintiffs alleg ed that:

detainees are packed into overcrowded a nd filthy holding cells, stripped of outer lay e rs o f clothing

, and force d t o endure brutally cold temperatures. They are d e n ied beds, b edding

, and sleep. They a

r e d epr i v e d of basic sanitation a

n d hy g iene items like soap, sufficient t oilet paper, sanitary napkins, diapers, and showers. And they are forced to
g o without adequate food, water , medicine, and medical care.D O E V

. K E L L Y 7

I n the fall of 2 016, t h e district c ourt certified the case as a class action. Plaintiffs then soug ht a p reliminary injunction.

II. THE DISTRICT COURT’S ORDERS

A. The Standards for Review ing C o n ditions of Conf inem ent

After setting forth the a

ppropriate standards for issuing a mandatory prelim i nary injunction, the district court considered the standards fo r r e viewing conditions o f confinement. I t first n oted that when the g overnment takes a person into custo d y , it must provide for the person’s “basic human needs—e.g

. food, clothing

, shelter, medical care, a nd reasonable safety .” D eShaney v. W innebago Cnty. Dep’t of Soc. Servs.
, 489 U.S. 189, 199–200 (1989); see a lso Farmer v. Brennan , 511 U.S. 825, 832 (1994).

Citing Bell v. W

olfish , 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 pun i s hment. Citing Demery v. Arpa i o , 3 7 8 F .3d 1020, 1030 (9th Cir. 2004), the district court ex p lained that “ [ t ] o c o n stitute punishment, the g overnmental action m ust cause harm o r disability that either sig nificantly ex ceeds or is independent of the inherent discomforts of confinement.” The c ourt noted that even in the absence of evidence of ex press intent, it may infer an intent to punish “if the restriction or condition is not reasonably related to a leg itimate g overnmental objective o r is ex c essive in relation to the leg itimate g overnmental objective.” See Pierce v. Cnty. of O range , 526 F .3d 1190, 1205 (9th Cir. 2008).D O E V

. K E L L Y 8

The district court noted that the Supreme Court h eld that “[ m] aintaining institutional security and preserving internal order a nd d iscipline ar e e ssential g oals that may require limitation or retraction of the retained c onstitutional rig hts o f both convicted and pretrial detainees.” B ell

, 441 U.S. at 546. I ndeed, the Supreme Court commented that “in the absence of substantial e vidence in the record to indicate that officials have ex ag g erated their responses to these c o nditions, courts should or d i n a rily defer to their ex pert judg ment in such matters.” I

d

. at 540 n.23 (quoting P ell v. Procunier
, 417 U.S. 817, 827 (1974)).

B a sed on these cases, the district court opined that a

c o ndition o f c onfinement “violates the F ifth and F ourteen t h Amendments if it imposes some harm to the detainee that sig nificantly ex ceeds or is i n d ependent of the inherent discomforts of confinement and is not reasonably r el ated to

a leg itimate g overnmental o bjective or is ex cessive in relation
to the leg itimate g overnmental objective.” S e e Kingsley v

. Hendrickson

, 135 S. Ct. 2466, 2473–74 (2015). This led the
court to r eason that decisions defining the constitutional rig hts of prisoners e stablis h a floor for Plaintiffs’ constitutional rig hts. Se e P adilla v. Y oo , 678 F .3d 748, 759 (9th Cir. 2012). The d istrict court concluded that it could
presume Plaintiffs were being subjected to p u n ishment “if they are con f

i n ed in c onditions identical to, similar to, o r

m ore r e strictive than those under which the crimi n a l l y convicted are held.” S

ee S harp v. W

e ston , 233 F.3d 1166, 1172–73 (9th Cir. 2000).

The district court then observed:

T his is precisely the case here. Assi s t a n t Chief Patrol Ag e nt for t he Tucson Sector,D O E V

. K E L L Y 9

Georg e Allen, a dmitted, when this C o u rt asked him to compare the conditions o f confinement at Tucson Sector B order Patrol stations with those afforded c r i m i n a l d e t ainees
at the Santa Cruz County jail, that in ja i l

, detainees have a b ed, with blankets, clean

c l o t h i n g , s h o w e r s , t o o t h b r u s h e s a n d toothpaste, w arm meals, and an opportunity for uninterrupted sleep. L ikewise, the

c o n ditions of confinement

. . . improve once they are transferred from B order Patrol holding cells to detention c enters operated b y the United States Marshals.

The d istrict court r ecog niz ed that, in assessing the constitutionality of the conditions o f confinement in the Bo rder Patrol stations, due consideration had to be g iven t o the nature, purpose and duration of an individual’s time in the station. The stations are 24-hour oper a t i ons where many detainees arrive in the evening and a t n i gh t. The holding

rooms are not d esig ned for sleeping and have n o beds. “Defendants assert[ ed] that p roviding sleeping facilities a nd turning off lig hts would require st r u c t u r al chang es a t the facilities, create safety risks, a n d impede its purpose to provide 2 4-7 immig ration p r o c e s s i n g .” Defendants ex p lained that w hen a d e t a inee arrives a t a station, o uter-clothing is removed f

or securi t y r e asons, and d etainees are placed into
g roup-holding rooms based on a ge , g ender, family u nits, o r suspected criminal status. Processing includes o btaining biog raphical inf

ormation and biometrics, submitting this information throug h the e3Nex Generation I denti fication
sy s t em to determine prior criminal a n d immig ration arrests, preparing a

n arrest report, immig rati o n processing

, consular notifications, and communica tion with f amily members a

ndD O E V

. K E L L Y 10

attorney s as appropriate. Processing

, if uninterrupted, absent
any remarkable c r iminal or immig ration h istory

, takes between two and two and one-half hours.

B u t, there usually are i n t e r r uptions. Discovery revealed that b etween J une 10, 2015, and September 28, 2015, only about 3 ,000 of a

p prox imately 1 7,000 detainees were proces s e d out of detention within 1 2 h ours. About 8,644 detainees were held at a B order Patrol station up to 23 hours; 6,807 were held for up to 47 h ours; 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 t h e B order Patrol’s 2008 Hold Rooms a nd Short Term Custody Policy ( 2 0 0 8 Policy ) and the National Standards on T ransport, E scort, Detention and Search (TEDS standards) provided for constitutional co n d i tions o f confinemen t. Althoug h D efendants assert that these
g uidelines establish the status quo, the district cour t f o und that Plaintiffs had presented persuasi v e evidence that the basic human needs of detainees we r e not being met b y Defendants’ current practices.

B. P laintif

f s’ Specif ic Com plaints

1. Sleeping. The dis t ri c t court recog niz ed that other detenti o n f

acilities must provide individuals held overnig ht with b eds and mattresses, and, t h us, the absence of either violates the detainees’ due process rig hts. See Thompson v

. City of Los Angeles

, 885 F .2d 1439, 1448 (9th Cir

. 1989), overruled on other g r ounds by Bull v. City & Cty. of San Fra n c i s co , 595 F .3d 964 (9th Cir. 2010) (en banc); Anela v

. City o f W ildwood

, 790 F

. 2d 1063, 1 069 (3rd Cir. 1 9 86). The
court noted that of the 16,992 detainees held between J une 10D O E V

. K E L L Y 11

and September 28, 2015, only 1 2 2 were recorded to have received a mat, and the others’ bedding needs were met with

o n ly a My lar sheet/blanket. T he court found that this w a s contrary to both the 2008 Policy and the TEDS standards. I t further noted:

the harshness c a used by the lack of mats a nd the inadequacy of the M y lar blankets is

c o mpounded by the Defendants’ practices o f k e e p ing h olding -cells lig hts turned o n 24-7, feeding one o f the three reg u lar hot meals to detainees a t 4 :00 a.m., moving detainees in and out of holdin g cells throug hout the nig ht for processi n g , overcrowding cells which

causes peop le to lie cramped tog ether a nd

nex t to toilet f

acilities or to sit or stand up,

a n d because the h ard concrete floors a n d benches retain the c old caused b y 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 holding

cell capacity numbers cannot accommodate the number o f detainees being detained long er than twelve h o urs because deten t i on o f this duration requires them to lie d own to sleep rather than sit up.”

Defendants’ e x pert opined that the B order Patrol facilities

were on par with s hort-term holding cells ty pically 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 day s. The district court, however, accepted that the holding cells n eed to beD O E V

. K E L L Y 12

illuminated for secu r i ty

. On the other hand, it found no security or administrative reason “to wake up detainees b y scheduling one of the three burrito meals at 4:00 a.m.”

T h e court also found that the My lar blankets d o n o t provide insulation from the c old concrete, but merely prevent evaporation a

nd retain 80% of body h eat when wrapped around a person. I n lig ht o f the sedentary nature of d etention, the district court required that Defendants continue to monitor cell tempera t ures, which w ere maintained at temperatures between 71 and 74 deg rees. The district court concluded that Defendants were v iolating Plaintiffs’ cons titutional rig ht to sleep, and ordered that Defendants provide detainees held for long er than 12 hours mats and My lar blankets.

2. Sanitation. The district court ex plained that a sanitary environment is a basic human need th at must be met by all penal institutions. See Keenan v. Hall

, 83 F. 3 d 1083, 1091 (9th Cir. 1996). Plaintiffs’ ex p ert opine d t h a t Defendants

were not comply ing with their own stand a r d s , noting that: (a) all areas, including floors a nd toilets, were b a d l y s oiled; (b) hold rooms lacked trash receptacles; (c) toilet stalls lacked
waste r eceptacles for sanitary napk i n s, diapers, and other bathroom waste; (d) cleaning supplies were n o t seg reg ated from food storag e; and (e) “cleaning crews did not appear to clean and sanitiz e common-touch p o i nts in detainee areas.” Althoug h prison standards require one toilet for ev ery 12 male prisoners and o ne toilet for every 8 f emale prisoners, in most cases the number o f toilets in e ach holding r oom was i nadequate. O ne larg e holding room with a capaci t y o f 8 8 had one w orking toilet and o n e non-flushing toilet. Moreover, many toilets were combined sink/toilet f i x tures with the sink f

ix ture on top of the toilet cre a t i n g a potential for contamination.D O E V

. K E L L Y 13

Defendants r esponded that all b u t o ne holding cell a re

c leaned twice a day

, and that they had beg un placing tra s h receptacles in the holding cells. Defendants further asserted that soap had been made a v ailable to detainees upon request, and that, where w ater fountains were inoperable, water coolers had been placed in the cells.

The district court p reliminarily ordered “compliance monitoring to ensure detainees have access to working toilets and sinks, soap, toilet paper , g arbag e receptacles, tooth brushes and toothpaste, feminine hy g iene items, b a by food, diapers and clean drinking water.”

The d istrict court was a lso critical of the l a c k o f shower facilities. I t n oted that a p erson who h ad been trudg ing across the Ariz ona desert would likely be d irty

, but only two stations had shower f

acilities, and those were sparsely used, g enerally for detainees w ho were suspected of h a v i n g s cabies. Only 115 detainees out of the 16,992 h eld be t w e e n J u ne 10 a nd September 28, 2015 were g iven showers.

Addressing the lack o f shower facilities, the district court noted t h a t j ail standards require access to showers a nd washbasins with hot a

n d cold running water, with daily showers available. Defendants responded tha t t h e lack o f showers was not a problem because mo s t detainees a re transferred within 7 2 hours a nd TEDS standards only require th a t reasonable efforts be made to provide showers for detainees approaching

72 hours of detention.

The d istrict court was critical o f Defendants’ failure to recog niz e the b asic human need to wash during detention, but also noted that courts are ex tremely r e l u ctant to find constitutional violations based on temporary deprivations ofD O E V

. K E L L Y 14

personal hy g iene. According ly

, the court preliminarily ruled that Defendants “ need only provide some means or materials for washing and/or maintaining personal hy g iene when detainees are held long er than 12 hours.”

3. Medical Care. The parties ag reed that Defendants a re constitutionally required to p rovide ready a cce s s to medical
care, b ut disag reed on the contours of t h i s r ig ht. Plaintiffs challeng e d the adequacy of Defendants’ intake screening

, alleg ing that: (1) the screening is performed by B order Patrol agents, not doctors, nurses, or other specially trained personnel; (2) Defendants do n ot maintain a medical
treat m en t prog ram capable of r esponding to emerg encies because they d o n ot have medical staff on site; a nd (3) “the practice o f confiscating incoming d etainees’ medication
creates impermissible and h eig htened risk that detainees will

ex p erience a medical emerg ency .”

Defendants responded that TEDS standa r ds provide a sy stem of r eady access to adequate med i c a l c a re. B efore a detainee is placed in a h old room, an age n t q uestions the individual and visually inspects for any sig n of injury

, illness,

or phy sical or mental health concerns. Observed or r eported injuries or illnesses ar e t o be communicated to a supervisor and documented in the app r o priate electronic sy stem. Treatment plans and medication should accompany detainees when they are transferred or d ischarg ed. Defendants asserted they have personnel at the stations who can treat emerg encies, and routinel y transfer detainees to hospitals f or emerg ency

care.

Plaintiffs’ ex pert, however, claimed that there was no evidence of any formaliz e d screening process being carried
out by ag ents at the detention centers. The e3DM data sy stemD O E V

. K E L L Y 15

reflect ed around 527 incidents of medical treatment for
approx imately 17,000 d etainees. The ex pert ex plained there

are two components to screening : (1) immedi a t e medical triag e to determine w hether there is any issue that would preclude acceptance into the facility

, and (2) a more thoroug h medical and mental health screening

. The ex pert was critical of the f ield screening because it was not d one pursuant to any standardiz ed p rotocol, and therefore did n ot adequately identify u rg e nt or emerg e n t health c a re needs or potentially communicable diseases.

The d istrict court preliminarily r equired c ompliance with TEDS standards, “including measures to ensure the Medical Screening F orm 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 a nd delivering medical care.”

C. P relim inary Injunctive Relief

Having held that Plaintiffs were likely to succeed on the merits, the district court consi d e red the other criteria for issuing a p reliminary injuncti o n

. I t h eld that Plaintiffs were likely to suffer irreparabl e h a rm due to the deprivation o f constitutional rig hts in the conditions o f confinement, which
cannot be ad e q uately remedied throug h damag es. The balance of equities and public interest favored relief, in part, because the “g overnment suffers no harm from an injunction that merely ends u nconstitutional practices and/or ensures that c onstitutional standard s a re implemented.” See Rodriguez v. Robbins

, 715 F. 3 d 1 127, 1145 (9th Cir. 2013). The district court concluded that Defendants “cannot sidestep

r eality by relying on the structural limitations of the B orde r Patrol d e tention facilities.” Rather, “[ i] f detainees are h eldD O E V

. K E L L Y 16

long enoug h to require them to sleep in t h e s e f acilities, take
reg ular meals, need showers, etc., t h en the Defendants must provide conditio n s of confinement to meet these human needs.” Althoug h it found n o evidence of intent to punish, the court found “no o b jecti v ely reasonable relationship between 24-7 immig ration process i ng or security and the conditions of confinement which Plaintiffs have preliminary shown ex ist in the Tucson Sector B order Pa t r ol stations related to sleeping , sanitation, food, and medical care.”

The court ordered:

1. Clean bedding

, which Defendants a s s ert they are providing t o a ll detainees, must include a m at a nd a My lar blanket for all detainees being

held long er than 12 hours.

2. P e r s o nal hy g iene needs o f detainees held long er than 12 hours include the need to wash or clean themselves.

3. Defendants shall imp l e m ent the universal

use of their Me dical Screening F orm at all stations and ensure that the form questions reflect the TEDS requirements for delivery o f medical care to detainees. 1

1 T h e d i strict co u rt f

u rth er o rd ered th at “ Def

en d an ts sh all m on ito r f

or

co m plian ce th e f

o llo w in g : av ailab ility o f w o rk in g sin k s an d to ilets an d /o r

o th er m aterials su f

f icien t to m eet th e p erso n al h y g ien e n eed s o f d etain ees

o n a p er cell p er s tatio n b asis; cell t e m p e r a tu res; cell san itatio n an d clean lin ess; d eliv ery to d etain ees o f b ed d in g , i n clu d in g m ats, p erso n al h y g ien e item s su ch as to ilet p ap er, to o th bru s h es an d to o th

p aste, f em in in e h y g ien e item s, b ab y

f o o d , d iap ers, an d m eals.”D O E V

. K E L L Y 17

D. The January 3, 2017 Order

Defendants soug h t reconsideration and modification o f the preliminary injunction. The motion outlined the B order Patrol’s compliance with the p reliminary injunction. Detainees were being provided w ith mats, sh o w e rs were being offered to some d etainees a n d others were being g iven body w ipes to clean themselves, all stations w ere p r ovided with the c urrent medical screening forms, and all stations h ad been ins t r u c t ed to monitor for compliance with TEDS standards for medical screening

. Defendants, however,
soug h t r econsideration asserting that: (a) allowing detainees
to lie d own to sleep had sig n ificantly reduced the holding c ell capacity numbers, and had interfered w ith th e i r a b ility to transfer individuals efficiently ; (b) compliance had increased processing time; (c) c ompl iance had added obstacles to Defendants’ c ompliance with the P r ison Rape Elimination Act, which r equires separating and m o nitoring v ulnerable populations; and (d) compliance had resulted “in prose c u t i o n s forfeited for lack of timely presentment.”

The district court denied the request for reconsideration. I t noted that providing detainees with mats and allowing them
to lie down to sleep would alway s require t hat Defendants acquire more space. The district court was not persuaded b y Defendants’ assertion that due to their 24-7 operational nee ds, they c ould not separate out det a inees who approach 12 hour detentions. The court n oted that it had seen e m p t y cells adjacent t o full cells and that Defendants admitted to separating out at-risk vulnerable population detaine e s

. The
court further stated that Defendants soug ht to suspend the 12- hou r limit “without o ffering any plan or time-line for full compliance,” and the court “cannot suspend what it believes are constitutional rig h ts.”D O E V

. K E L L Y 18

The d istrict court did clarify its order. I t e x plained th at: (1) f or detainees held more than 1 2 hours, “Defendants must provide bedding

, including mats and My lar b l an k e ts a nd

some means to maintain personal hy g iene;” (2) the court “ did

n ot order Defendants to provide showers;” and (3) “th e 1 2

- hours beg ins to run from w h e n t h e detainee arrives at the station.” 2

III. ANALYSIS

A. Standard of

Review

P l a i n tiffs a

re entitled to preliminary injunctive relief if they show: (1) li k e l y s uccess on the merits; ( 2) likely irreparable h arm absent p reliminary relief; (3) the balance o f 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. 2 012); Sierra Forest Legacy v. Rey
, 577 F .3d 1015, 1021 ( 9th Cir. 2009). U n d e r our “sliding

s c ale” approach, a strong er showing of one element may offset a weaker showing of a nother, as l o n g a s plaintiffs “establish that irreparable h arm is likely .” A ll. for the W ild Rockies v. Cottrell , 632 F .3d 1127, 1131 (9th Cir. 2011).

A p r e liminary injunction should b e set aside only if the district court “abused its discretion or based its decision on an

erroneo u s l e g al standard or o n clearly erroneous finding s o f fact.” Puente Arizona v. Arpaio
, 821 F .3d 1 098, 1103 (9th

2 Ou t o f an ab u n d an ce o f cau tio n , Def en d an t s h ad in itially calcu l ated th e 1 2 h o u rs f

ro m th e m o m en t an in d iv i d u al w as ap p reh en d ed

, rath er th an th e in d i v id u al’ s “ b o o k

- in to a statio n .” T h e clarif

icatio n acco m

m od ated th e B o rd er P atro l’ s co n cern th at ap p reh en sio n s o f ten o ccu r in rem o te areas lo n g d istan ces f

ro m th eir statio n s.D O E V

. K E L L Y 19

Cir. 2016) (quotation omitted )

. L eg al conclusions a re reviewed de n ovo. Pimental

, 670 F .3d at 1105. A distri ct

c o urt “necessarily abuses its discretion when it bases i t s decision o n an erroneous leg al standard.” Harris v. B d

. of Supervisors of

Los Angeles Cnty.
, 366 F

. 3d 754, 760 ( 9th Cir. 2 0 0 4 ) (quoting Rucker v. Davis
, 2 37 F .3d 1113, 1118 ( 9th Cir. 2 001) (en banc), rev’d on other g rounds

, Dep’t o

f Hous. & Urban Dev. v. Rucker

, 535 U.S. 125 (2002).

I f the district court identifies the correct leg al standard, “it will not b e reversed simply because the appellate court would have a rrived at a differe n t result if it had applied the law to the facts o f the case.” Am. Trucki n g 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 “illog ical, i m plausible, o r without support in inferences tha t m a y be drawn from the record.” United States v. Hinkson

, 585 F .3d 1 247, 1262 (9th Cir. 2009) (en banc).

F urthermore, we hav e held that the district c ourt has broad discretion to fashion r emedies once consti t utional violations are found. Hoptowit v. Ray
, 682 F .2d 1237, 1245 (9th Cir. 1982), overruled on other grounds by S andin v

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

B. The District Court P roperly R e a d and Applied Bell v. Wolfish

On appeal, Defendants assert that the district court misinterpreted and misapplied Bell

. T h ey arg ue that the court disreg arded the Supreme Court’ s caution ag ainst courts becoming enmeshed in the minutiae o f facility operations a ndD O E V

. K E L L Y 20

“failed to take any meaning ful accoun t o f the unique nature of detention at B order Patrol facilities.”

Defendants’ arg uments a r e n ot well taken. The district

cou r t r epeatedly cited Bell and r ecog niz ed the Court’s admonition to defer to leg itimate g overnmental objec t i v es. However, the Supreme Court said much more. I t 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 o t h e r leg itimate g overnmental purpose.” 441 U.S. at 5 38. The Court n o ted that a condition would not constitute punishment if it was “reasonably r elated to a leg itimate g overnmental objective.” Id

. at 5 39. B ut if a condition “is a

rbitrary or purposeless—a cou r t p ermissibly
may infer that the p u r

pose of the g overnment action is punishment that may not consti t u tionally be inflicted on detainees.” Id. The district court applied this standard.

At its core, Defendants’ objection that t h e district court “failed to take any meaning ful account o f the unique nature of detention at B order Patrol f acilities” is not a c h alleng e to the district court’s interpretation of B el l

, but a disag reement with the application of B e ll to the facts in this case. As such, Defendants mus t s h o w an abuse of discretion—that the district cou r t ’ s order “is illog ical, implausible, or without support in inferences that may b e drawn from t h e r ecord.” Hinkson , 585 F .3d at 1262.

The r ecord reveals that the d istrict court sculp t u red the relief g ranted to reflect the unique features of B order Patrol stations and field operations. I t did so by requiring only mats and My lar bl a n kets instead of beds and mattresses, b y allowing body wipes for c leaning r ather than showers, and b y allowing non -medical personnel to medically screenD O E V

. K E L L Y 21

detainees. 3 The limited injunction reflects the district court’s careful consideration of the uniqu e n a t ure of B order Patrol stations in lig ht of Bell

.

The only aspect of the prel i m i n a ry injunction that Defendants specifically challeng e on appeal is the a lleg edly “rig id” requirement that they provide mats to a ll individuals detained for 12 hours or more. However, Defendants do not contest that detainees may sleep w hile in custody

, or even that the 12-hour mandate mig ht be w orkable in some cases. Rather, they ar g u e that the rule “ig nores the purpose o f B order Patrol custody ”; that it mig ht be c ounterproductive if

an individual arrives at the station in the middle of the nig ht and is likely to b e transferred in the afterno o n ; and, lacks a safety valve for a “surg e” or other unforeseen situations.

These arg u ments a

re not persuasive. F irst, 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 h is detention) has a rig h t to lie down and rest, even in the middle of the day

. S e cond, it is by no

means clear that providing detainees with mats after 12 hours is more b urdensome than providing them with mats at any other time. 4 T hird, there is little to no evidence that providing detainees with mats interferes with the B order Patrol’s identification a

nd processing of individuals. F ourth, there is nothing in the record to sug g est that Defendants ever soug ht

3 In ad d itio n , th e d istrict co u rt allo w ed th e lig h ts in th e h o ld in g cells
to rem ain o n all n ig h t. P lain tif

f s d o n o t ch allen g e th is o n ap peal.

4 A t o ral arg u m en t , D e fen d an ts’ co u n sel stated th at d etain ees are p resen t ly b ein g g iv en a b l a n k et an d m at w h en in itially ad m itted to a h o ld in g cell.D O E V

. K E L L Y 22

“surg e” protection from the district court. I ndeed, the Motion for Clarific a t i o n alleg ed that p roviding detainees w ith mats would reduce the hold i ng cells’ capacities. I t did not a lleg e that providing mats was in itself b urdensome or that there was some need for flex ibility

.

I n lig ht of the defe rence due the district c ourt in fashioning preliminary reli ef, Hinkson

, 585 F .3d at 1262, Defendants have not shown that the di s t r i c t court abused its discretion in g ranting the limited preliminary injunction. 5

C. P laintif

f s Have Not Show n that the District Court Abused its Discretion in Issui n g Only a Lim ited P relim inary Injunction

Plaintiffs have not shown that the d i strict court’s application of the law c oncerning beds, showers, and medical

c are to the facts in this case is illog ical, implaus i b l e , o r “without support in inferences that ma y b e drawn from the facts in the record.” Id

.

5 Def en d an ts’ co n cern s th at th e p reli m i n ary in j u n ctio n is “ a d ero g atio n o f f

u n d am e n tal p rin cip les o f n atio n al so v ereig n ty ” o r m ay

v io late th e Im

m ig ratio n an d Natio n ality A ct b ecau se co u rts are p ro h ib ited

“ f ro m f ash io n in g class w id e in

j u n ctiv e relief th at w o u ld en j o in or restrain th e o p eratio n o f th e deten tio n p ro v isio n s o f t h e A ct,” o v erstates th e situ atio n an d th e l aw

. “ P lain tif f s d o n o t seek to prev en t Def en d an ts f ro m in sp ectin g , ap p reh en d in g , ex clu d in g , or rem ov in g alien s,” an d d o n o t

“ ch all e n g e t h e g o v ern m en t’ s p o w er to d etain in d iv id u als w h o are

su sp ected o f cro ssin g th e n atio n ’ s b o rd ers w ith o u t p ro p er au th o rizatio n .” Def en d an ts h av e o f

f ered n o case law su g g esti n g th at co n stitu tio n al

o b lig atio n s m ay n o t in d irectly im p l icate th e m an n er an d m ean s b y w h ich th e g ov ern m en t carries o u t it s r e s p o n sib ilities at th e b o rd er. S ee Ro d rig u ez v. Ha

yes , 5 9 1 F.3 d 1 1 0 5 , 1 12 0 –2 1 (9 th Cir. 2 0 1 0).D O E V

. K E L L Y 23

1. Beds. Plaintiff

s arg u e that detainees held overnig ht

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 Fo u rteenth Amendment”). B ut g iven the unique purpose o f B order Patrol stations and Defendants’ limited resources, the district court r easonably limited p reliminary r e l i e f to mats and My lar blankets. The purpose of the stations is to process the detainees as efficiently as possi b l e so that they may be transferred to other facilities or released. D e f endants assert that, a bsent the influx of detainees in 2015, p r o cessing a person should have taken two or three hours. Thus, were the

s t a t ions operating as intended, there would never have been
any need for a bed or a mat. According ly

, the stations a re not set up to accommodate beds. D efendants have neither the
space for beds a

nd mattresses, nor, presumably

, beds a nd
mattresses that mig ht b e immediately moved to the stations. Under these conditions, g ranting Plai n t i ffs the immediate preliminary relief of mats and My lar blankets was reasonable. I t provides Plaintiffs with actual relief w ithout imposing a hug e cost on Defendants to allevi at e w h at mig ht be a temporary need. Evidence as to whether the need was likely
to continue w ould certainly be relevant to the district court’s determination of Plaintiffs’ request for a p ermanent injunction. H owever, th e p o s s ibility of such evidence does
not undermine the log ic and reas o n ableness o f the district court’s p reliminary injunction, which provided immediate

an d e f f e ctive, if limited, r elief by requiring Defendants to provide mats and blankets.

2. Show ers. Plaintiffs assert that detainees have a rig ht of access to showers. S e e, e.g. , Toussaint v. McCarthy

, 597 F

. Supp. 1388, 1399 (N.D. Cal. 19 8 4 ) ( holding that “minimum standards of decency require that lockup inmatesD O E V

. K E L L Y 24

without hot running w ater in their c e lls be accorded showers three times per week in facilities reasonably free of standing water, fung us, mold and mildew”), aff’d in part and rev’d in
p a r t by Toussaint v. McCarthy

, 801 F .2d 1080 (9th C i r. 1986). However, practical considerations support the district court’s g r ant of limited relief allowing Defendants to provide Plaintiffs with body wipes to maintain a minimal level o f personal hy g iene. Apparently

, only two of the eig ht 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 logi s t ical concerns. Diverting Defendants’ limited human resour c e s to p rovide detainees with showers would almost certainly s l o w down the processing of detainees, thereby encumbering

Defendants’ primary

mission.

F urthermore, althoug h Plaintiffs have a rig ht to hy g iene, the Constitution does not requires access to a shower within 12 hours or even 2 4 hours. The d istrict court i n T o u s s a int
, held that inmates were entitled to showers three times a week. 597 F

. Supp. at 1399. B ut case law d oes not compel the conclusion that they have a cons t i tutional rig ht to a shower when detained for fewer than two day s.

3. Medical Care. There is no question that detainees a re entitled to “ adequate medical c are.” See Toussaint
, 801 F .2d
at 1112 ( “I f p laintiffs correct l y contend that unqualified personnel reg ularly e ng a g e in medical practice, p recedent indicates that the prison health care delivery s y stem may reflect deliberate indifference to plaintiffs’ medical needs.”); Hoptowit
, 682 F .2d at 1 252 (“Medical staffing is inadequate. Medical services are provided by nurse practitioners o r phy sician assistants (mid-level practitioners), r ather than phy sici a n s

. ”); Gibson v. Cty. o f W ashoe

, 290 F .3d 1175,D O E V

. K E L L Y 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. I n particular, p recedent allows c o n siderable flex ibility as to

w h e n and how constitutionally “adequate medical care” i s provided.

The ca s e s cited by Plaintiffs concern setting s different from those at issue here, a n d do not hold that a l l m edical screening mu s t be done by medical professionals. F irst, Ho ptowit concerned medical care at the W ashing ton State Penitentiary

. 6 82 F .2d at 1245. W e ag ree d with the district
court t h at the ex isting conditions violated the Eig hth Amendmen t

. Id

. (“The Eig hth Amendment requires that prison officials provide a sy stem of ready access to adequate medical c are.”). However, we held that remedies ordered b y the district court were overbroad, and that “the court could g o

no farther than to b ring the medical s e r v i ces up to the constitutional minima.” I d. Althoug h 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 t h e s e other phy sicians o r facilities.” Id. We were p articularly critical of the district court’s order that t he penitentiary hire full time p hy sicians, stating that the court mu s t fi rst determine that the penitentiary ’s use of outside se r v i c e s “could not meet the constitutional minimum.” Id . at 1254. 6

6 W e ex p lain ed :

T h e d istrict j u d g e co u ld f in d th at in

- priso n staf

f w as

n ecessary if h e f

o u n d th at th e State’ s ap p ro ach w as

n ecessarily in ad eq u ate. H e m ad e n o f in d in g s, h o w ev er,

co n cern i n g th e av ailab ility an d ad eq u acy o f treatm en t

o u tsid e th e p riso n

. It co u l d w ell b e th at w ith im pro v edD O E V

. K E L L Y 26

S econd, Toussaint concerned conditions of confineme n t at f our California p risons. 8 01 F .2d at 1085. Health care at the F o lsom Prison was only one of the issue s t he Ninth Circuit addressed. Id

. at 1111–12. W e recog niz ed that deny ing priso n e r s medical attention may constitute a violation of the Eig hth Amendment “ if the denial amounts to deliberate indifference to serious me d i c al needs of the prisoners.” Id

. at 1111 (c i t a tion omitted). However, we remanded the plaintiffs’ c laim that the defendants placed “an unconstitutional d e g ree o f reliance on MTAs [ medical technical assistants]

, reg iste r ed nurses (RNs) and inmate workers.” Id

. W e ex plained:

Defendants respond that MTAs, RNs a nd inmates are qualified to p erform a number o f

s ervices. I f plaintiffs correctly contend tha t unqualified personnel reg ularly eng a ge in medical practice, precedent indicates that the prison h ealth care delivery sy stem may reflect deliberate indifferenc e to plaintiffs’ medical needs. Therefore, we must remand for entry

m i d

- l e v e l s t a f

f i n g i n t h e p r i s o n , i m p r o v e d
tran sp o rtatio n , an d an ad eq u ate p lan f o r m ed i cal
treatm en t in th e co m

m u n ity

, th e ap p ro ach tak en b y th e State w o u ld b e co n stitu

t io n ally p erm i ssib le. B ef

o re th e d istrict j u d g e o rd ered t h e p riso n to h ire in

- h o u s e p h y sician s an d ef

f ectiv ely scrap its ap p ro ach to m ed i cal

serv ices, h e sh o u ld h av e f irst d eterm in ed th at th is
ap pro ach co u l d n o t m eet th e co n stitu tio n al m in im

u m

. A b s en t s u ch a f

in d in g , th e d i s t r i c t co u rt sh o u ld h av e

o rd ered th e p riso n o f

f icials to im

p ro v e th e in

- h o u s e

s taf f i n g an d pro ced u res w i th i n th e f ram ew o rk o f t h e p en i ten tiary ’ s ap p ro ach to m ed ical serv ices.

Ho p to wit , 6 8 2 F.2 d at 1 2 5 4

.D O E V

. K E L L Y 27

of ex plicit factual finding s reg arding the
nature of services performed by MTAs, RNs,

a n d i n m a t e s , t h e i r l e v el o f m e d i c a l qualification, an d the level of qualification required to adequately r ender the services that they perform.

Id

. at 1 1 11–12 (citation omitted). Thus, not all use o f “unqualified” medical personnel is prohibited b y the Co n s t i t u t i o n

. R a t h er, Toussaint proscribes h aving “unqualified p ersonnel reg ularly eng ag e in medical practice.”

W e find the third case c ited b y Plaintiffs, Gibson

, to be so different f rom the case before us as to have little application. 290 F .3d 1175. Stephe n Gibson, who suffered from manic depressive disorder, died of a heart attack while r e s isting being moved to a special watch cell in the county jail. Id . at 1181–83. His wife and children filed a § 1 9 8 3 d u e process action a g ainst the Washoe County Sheriff’s Department alleg ing ex cessive force, deliberate indifference to Stephen’s serious mental health condition, and that the deputies’ actions resulted from the practices of th e S h eriff’s Department. Id

. at 1184. The district court g ranted summary judg ment for the defendants. Id

. at 1185. W e reversed in part, holding that the County
, but not t h e i n d i v idual d eputies, could b e liable for deliberate indifference. Plaintiffs cite Gibson as establishing

a rig ht, at the inta k e stag e, “to competent treatment encompass[ ing ] a rig ht to prompt screening by medical staff, which is necessary to identify health e merg encies, medication needs, and contag ious diseases requiring quarantine.” Plaint i f f s overlook that, in Gibson

, we determined that the County ’ s potential liability for deliberat e i n difference was based on review of the County ’s past p ractices and itsD O E V

. K E L L Y 28

policies. 7 T he r ecord before us do e s not contain similar evidence of deliberate indifference by the B order Patrol to the detainees’ medical needs.

Moreover, while Plaintiffs are entitled to adequate medical care, our precedent d oes not require that all stag es o f medical care be pro v i d e d b y trained medical staff. Rather,

our opinions in Hoptowit and Toussaint held that, before directing an ag ency to retain medical p ersonnel, a court must first evaluate whether the g overnment’s proposed p lan adequately

meets the detainees’ medical needs.

Defendants assert that B order Patrol ag ents have training

as first responders, and that some have training as EMTs a nd Paramedics. They also represent that ag ents receive “training
to identify communicable diseases and reg ularly interact with and observe detainees, and any de t a i n e e presenting any sy mptoms of such conditions is transferred to a hospital and provided medical care.”

The record does not indicate that the ex istin g s y s tem o f medical care, as directed by the district c o u rt, is inadequate. The most that Plaintiffs have shown is a low percentag e o f

7 W e n o ted th at it w as t

h e Co u n t y ’ s p o licy th at th e j ail’ s m ed ical u n i t b e staf f ed 2 4 h o u rs a d ay by licen sed m ed ical perso n n el an d th at w h en arrested

, a p erso n w as to b e m ed ically sc reen ed

. Gib so n , 2 9 0 F.3 d at 1 1 8 3

. Fo r m an y y ears, th e Co u n ty “ h ad em

p lo y ed

. . . a f

u l l- tim e clin i cal

m en tal h ealth w o rk er at th e j ail to p erf o rm m en tal h ealth screen in g ,” b u t at th e t im e o f G ib so n ’ s d eath th e Co u n ty d id n o t h a v e a m en tal h ealth

w o rk er “ b ecau se o f a so u

red relatio n sh ip b etw een th e j ail’ s m ed ical staf f

an d th e m en t al h o sp i tal.” Id

. at 1 1 84

. W e stated th at “ th e reco rd su g g ests th at th e Co u n ty n o t o n ly k n ew th at it h ad to treat th e m en tally ill in o rd er to av o id h arm , b u

t th at it h ad m ad e a p ractice o f ig n o rin g th is n eed .” Id

. at 1 1 9 1

.D O E V

. K E L L Y 29

the detainees received medical treatment ( 3 % ), and a few incidents of inappropriate action. 8 I ndeed, there is no evidence of Defendants d en y i ng critical medical care to a detainee with dire con s e q uences. As most detainees a re

r e l e a s ed w ithin a d ay or two, medical care may have b e e n delay ed, rather than denied.

I n addition, Defendants assert that comply ing with TEDS standards should provide d etainees w ith adequate a cc e s s to t h eir prescriptions because these standards provide f o r detainees’ medications to “be s e lf-administered under the
supe r vision of an officer/ag ent,” and both parties’ ex perts ag reed that “referring a patient to the hospital to obtain a U.S. prescription” is acceptable.

Plaintiffs’ reply brief reveal s l i t tle or no evidence o f inadequate medical treatment of d e t ainees. Plaintiffs question whether B order Patrol a g ents really receive training

as first responders and note that very few h a v e training a s EMTs and Paramedics. This may be true, bu t s a y s nothing about the a dequacy of medical care currently deliver ed. Plaintiffs a

rg ue that it cannot be true t h a t a l l medical issues

are referred to the h ospital w hen medical treatment is needed,

8 P lain tif f s relate in stan ces w

h ere: (1 ) th e ag en ts w ith h eld a p reg n an t

w o m an ’ s m ed icatio n ev en t h o u g h sh e y elled in p ain

, an d to l d h er n o t to cry b ecau se sh e w as j u st g o i n g to be d ep o rted ; (2 ) a w o m an ’ s m ed icatio n f o r an o v arian cy st w as co n f iscated an d w ith h eld f

o r th e 12 h o u

rs sh e w as d etain ed ; (3 ) t

h e g o v e r n m en t co n f

iscated a w o m an ’ s m ig rain e- h ead ach e

m ed i cin e af

ter sh e tu rn ed h erself in to th e B o rd er P atr o l ; a n d (4 ) th e g o v ern m en t ig n o red a m an ’ s plea f o r t h e prescrip tio n m ed icatio n h e

n eed ed t o treat a p ain f

u l h eart co n d itio n

. Accep tin g th at th ese actio n s

w ere w ro n g , P l ain tif

f s h av e n o t sh o w

n th at th e erro rs w ere n o t co rrected

. Mo reo v er, th ey are n o t su f f icien t to estab lish a p ractice o r p o licy th at req u ires p relim in ary

in j u n ctiv e relief

.D O E V

. K E L L Y 30

because only 527 out of 17,000 detainees were referred to the hospital. B ut this low number is not unreasonable g iven that

over half of the detainees are processed in less than 24 h ours. Plaintiffs a lso arg ue that Defendants overstate their e x pert’s claims concerning their ability to identify and treat communicable diseases. B ut this is not evidence that detainees w ith sy

mptoms of a c ommunicable disease are not identified, seg reg ated, and treated, if ne c e s s a ry

. F inally

, Plaintiffs challeng e whether the p ractice of confiscating medications at intake is an a cceptable p ractice, and arg ue that hearsay declarations concerning Plaintiffs’ medic a t i o n c laims

are a d missible at a preliminary injunction hearing

. Ag ain, this is not evidence that Defendants have not provided, or will not provide, adequate medical care.

W e do not q

ues t ion that Plaintiffs have real a nd substantial concerns with the adequacy of t he medical care provided to detainees. Rather, we h old only that Pl a i n t i ffs have not shown that the district court abused its d iscretion in determining

, as a preliminary matter, t h a t Defendants, b y comply ing w ith the TEDS standards, are providing adequate medical care. Plaintiffs have n ot c a r ri ed their burden o f showing that the district court’s decision i s “illog ical, implausible, or w ithout support in inferenc e s t h a t may be drawn from the record.” Hinkson

, 585 F .3d at 1262.

IV. CONCLUSION

This litig ation arises out of the influx of detainees in the Tucson Sector of the U.S. B order Patrol in 2015. The district

cou r t carefully considered Plaintiffs’ alleg a tions o f

con s titutional violations, recog niz ed the g uidance provided by the Supreme Court in B e l l

, 4 4 1 U.S. 520, a nd issued a limited preliminary injunction requiring Defendants toD O E V

. K E L L Y 31

provide detainees with mats a n d b lankets a f

t e r 12 h ours. Defendants have failed to show that, in doing so, the district
court misapprehended B e ll or that the preliminary injunction is overly rig id or burdensome. W e also find unpersuasive Plaintiffs’ assertions that the d istrict court should h a ve required Defendants to p rovide detainees with beds, showers, and m edical treatment provided by medical professionals. Plaintiffs have not shown that th e d i s trict court’s determinations were “illog ical, implausible, o r without support in inferences that ma y b e drawn f rom the record.” Hinkson

, 585 F .3d at 1262. The district court recog niz ed the unique mission of the B o rder Pa t r o l and, at least for the
purposes o f a preliminary injunction, reasonably balanced the
g overnment’s interests a n d the detainees’ constitutional rig hts. The district court’s orders are AF F IRMED

.