Opinion
Case No. C20-700 JLR-MLP
2021-08-23
Josue Castañeda JUAREZ, et al., Petitioner-Plaintiffs, v. Nathalie ASHER, et al., Respondent-Defendants.
Aaron Korthuis, Matt Adams, Margot Adams, Northwest Immigrant Rights Project, Enoka Herat, John B. Midgley, ACLU of Washington, Eunice Cho, American Civil Liberties Union of WA, Seattle, WA, David C. Fathi, Joseph Longley, Pro Hac Vice, Lauren Kuhlik, Pro Hac Vice, ACLU National Prisoner Project, Washington, DC, Michael Tan, Pro Hac Vice, Omar Jadwat, Pro Hac Vice, American Civil Liberties Union, New York, NY, My Khanh Ngo, Pro Hac Vice, American Civil Liberties Union Foundation, San Francisco, CA, Tim Henry Warden-Hertz, Northwest Immigrant Rights Project, Tacoma, WA, for Petitioner-Plaintiffs Wilfredo Favela Avendano, J.A.M., Naeem Sohail Khan. James C. Strong, Matt Waldrop, US Attorney's Office, Seattle, WA, Michelle R. Lambert, US Attorney's Office, Tacoma, WA, US Attorney Habeas, for Respondent-Defendants Nathalie Asher, Immigration and Customs Enforcement United States, Tae D. Johnson. Joan K. Mell, III Branches Law PLLC, Fircrest, WA, for Respondent-Defendant Bruce Scott.
Aaron Korthuis, Matt Adams, Margot Adams, Northwest Immigrant Rights Project, Enoka Herat, John B. Midgley, ACLU of Washington, Eunice Cho, American Civil Liberties Union of WA, Seattle, WA, David C. Fathi, Joseph Longley, Pro Hac Vice, Lauren Kuhlik, Pro Hac Vice, ACLU National Prisoner Project, Washington, DC, Michael Tan, Pro Hac Vice, Omar Jadwat, Pro Hac Vice, American Civil Liberties Union, New York, NY, My Khanh Ngo, Pro Hac Vice, American Civil Liberties Union Foundation, San Francisco, CA, Tim Henry Warden-Hertz, Northwest Immigrant Rights Project, Tacoma, WA, for Petitioner-Plaintiffs Wilfredo Favela Avendano, J.A.M., Naeem Sohail Khan.
James C. Strong, Matt Waldrop, US Attorney's Office, Seattle, WA, Michelle R. Lambert, US Attorney's Office, Tacoma, WA, US Attorney Habeas, for Respondent-Defendants Nathalie Asher, Immigration and Customs Enforcement United States, Tae D. Johnson.
Joan K. Mell, III Branches Law PLLC, Fircrest, WA, for Respondent-Defendant Bruce Scott.
ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER
JAMES L. ROBART, United States District Judge
I. INTRODUCTION
Before the Court is Petitioners’ motion for a temporary restraining order ("TRO"). (TRO (dkt. # 324).) Federal Respondents filed a response (Fed. Resp. (dkt. # 346)) and Respondent Bruce Scott filed a response (Scott Resp. (dkt. # 343)). Petitioners filed a reply. (Reply (dkt. # 351)). The Court has reviewed the Petitioners’ motion, the responses, the reply, the amended petition and complaint (Am. Pet. (dkt. # 167)), the relevant portions of the record, the applicable law, and Magistrate Judge Peterson heard oral argument on August 20, 2021. Being fully advised, the Court GRANTS, in part, Petitioners’ motion for a TRO for the reasons discussed below.
Respondent Scott renews his prior objections to his substitution as a Respondent in this matter and reiterates that he has no ability to test or vaccinate detainees. (Scott Resp. at 1-2.) He also joins the Federal Respondents’ opposition to the instant motion for a TRO. (Id. at 3.)
II. BACKGROUND
A. Procedural Background
Petitioners are individuals either currently or previously held in civil detention by United States Immigration and Customs Enforcement ("ICE") at the Northwest ICE Processing Center ("NWIPC") in Tacoma, Washington. NWIPC is a private detention center run by an independent contractor, The GEO Group, Inc. ("GEO"), to supervise noncitizen detainees in ICE custody. (8/4/21 Lippard Decl. (Dkt. # 347) at ¶ 5.)
Petitioners brought this action in May 2020, arguing they are "vulnerable to serious medical complications from COVID-19 and are at risk of serious illness and death so long as they are held in detention" due to their medical conditions. (Dkt. # 1 at ¶ 95.) Petitioners sought release. (Id. at ¶ 82.) Petitioners subsequently amended their petition and complaint, modifying their requested relief to include, inter alia , periodic testing for COVID-19 and limiting the number of detainees held at NWIPC. (Am. Pet. at ¶ 8.) On March 18, 2021, the Court granted Petitioners’ second motion for class certification, certifying a class defined as:
All individuals detained at the [NWIPC] who are age 55 years or older or who have medical conditions that place them at heightened risk of severe illness or death from COVID-19 as determined by Centers for Disease Control and Prevention guidelines.
(Dkt. # 245.)
Petitioners previously filed two motions for a temporary restraining order that the Court denied. (5/11/2020 TRO (Dkt. # 22); 12/11/2020 TRO (Dkt. # 175).) Petitioners filed the instant motion for a temporary restraining order seeking to enjoin Respondents from admitting detainees to NWIPC whose transfer is not in accordance with the Center for Disease Control and Prevention's ("CDC") Interim Guidance for Transporting or Arranging Transportation by Air into, from, or within the United States of People with COVID-19 or COVID-19 Exposure ("CDC Transport Guidance") (see Maltese Decl. (dkt. # 327), Ex. D) and the CDC's Interim Guidance for SARS-CoV-2 Testing in Correctional and Detention Facilities ("CDC Testing Guidance") (see id. , Ex. C). Petitioners also assert aspects of NWIPC's intake process do not comply with the Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities ("CDC Correctional Guidance"). (See id. , Ex. F.)
B. Factual Background
1. Stipulated Facts
The parties submitted the following stipulated facts:
In response to the COVID-19 pandemic, ICE adopted a Pandemic Response Requirements ("PRR") setting forth policies and procedures to prevent COVID-19 outbreaks at detention centers, including NWIPC. (Stip. of Facts (Dkt. # 326) at ¶ 13.) As set forth in the PRR, ICE discontinued transferring ICE detainees "unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, release or removal, or to prevent overcrowding." See https://www.ice.gov/coronavirus/prr at 34 (last visited August 22, 2021). In early June 2021, ICE resumed transferring detainees from the southern border to NWIPC. (Stip. of Facts at ¶ 1.) The detainees are transferred from Customs and Border Protection ("CBP") facilities, which are designed to be 72-hour holding facilities, and from other ICE facilities. (Id. at ¶¶ 2, 4.)
a. Transfer Process to NWIPC
Detainees from CBP facilities are first transported by bus to an airport near the southern border to board flights to Yakima, Washington. (Stip. of Facts at ¶¶ 7, 9.) The Department of Homeland Security ("DHS") does not require the detainees in CBP facilities be tested for COVID-19 prior to their transfer and the detainees are not offered COVID-19 vaccinations. (Id. at ¶¶ 5-6.) Detainees from other ICE facilities are tested prior to transfer and may have been offered vaccinations. (Id. at ¶¶ 6, 10.) Once CBP detainees arrive at the airport, ICE takes custody and verbally screens for COVID-19 symptoms. (Id. at ¶ 9.) Screening includes taking temperature checks and asking detainees if they have any COVID-19 risk factors. (Id. ) ICE does not test detainees from CBP facilities who are asymptomatic or have not been in close contact with an individual that is COVID-19 positive before or during the flight. (Id. at ¶ 10.) A nurse accompanies the detainees on their flight to Yakima. (Id. at ¶ 9.) Detainees are required to wear masks during the transfer process and are also placed in hand and feet restraints. (Id. at ¶ 12.) When social distancing is not possible, detainees may be within 6 feet of another detainee. (Id. ) Once in Yakima, the detainees are transferred to NWIPC by buses operated by GEO. (Id. at ¶ 11.)
b. Intake Process
ICE subjects detainees to an intake process upon arrival at NWIPC. (Stip. of Facts at ¶ 14.) ICE conducts a medical examination and ICE Health Service Corps ("IHSC") conducts a polymerase chain reaction ("PCR") COVID-19 test that provides results in approximately 2-3 days. (Id. ) Detainees are then placed in the New Intake Monitoring ("NIMs") units for intake quarantine. (Id. at ¶ 15.) Detainees in the NIMs units may be confined in a cell by themselves, a cell with 2-4 detainees, or in an open bay unit that houses detainees in an open space with other detainees. (Id. )
Detainees who do not exhibit signs of COVID-19 symptoms during intake and quarantine, who do not test positive for COVID-19, and who do not have known exposure to COVID-19 stay in NIMs units for 14 days. (Id. at ¶ 16.) The detainees may not commingle with detainees from other cells or units. (Id. ) After 10-12 days in quarantine, detainees receive an Abbott ID NOW COVID-19 test that returns results in 15-20 minutes. (Id. ) Detainees who exhibit symptoms, test positive, or have known exposure to COVID-19 are placed in the Medical Housing Unit ("MHU/overflow"). (Id. at ¶ 17.) If a cell or unit mate tests positive for COVID-19, detainees restart the 14-day intake quarantine. (Id. at ¶ 18.)
ICE now uses RT-PCR testing at this stage in the intake process. (Resp. at 12 n.15.)
2. Additional Facts
The Court considers the following additional facts:
a. CDC Guidelines
The CDC Testing Guidelines set out recommendations for movement-based screening that includes screening individuals at intake and before transfer to another facility. (See Maltese Decl., Ex. C at 6.) It advises that an individual should be tested "before transfer to another correctional/detention facility" and to wait for a negative test result before the individual is transferred. (Id. )
The CDC Transport Guidelines advises generally that those who are infected with COVID-19 may be cohorted for transfer regardless of symptoms, but that those who do not have COVID-19 should not be transported with infected passengers. (Id. , Ex. D at 4.) It also advises that asymptomatic close contacts who have tested negative may be grouped within existing cohorts and with other cohorts of similar status if they may stay six feet apart. (Id. ) It further advises that symptomatic close contacts should be tested before transport and if they test negative and clinical suspicion of infection is low, they may be transported with asymptomatic contacts. (Id. )
The CDC Correctional Guidance provides recommendations on how to quarantine individuals, including, inter alia , using separate, single cells, or cohorts in cells that are well-ventilated. (Id. , Ex. F at 17.) It advises that if the ideal choice does not exist, the next best alternative that reduces harm should be used. (Id. )
b. Recent Positive COVID-19 Tests
At least 1,095 detainees from the southern border have been transferred to NWIPC since late April 2021. (Fed. Resp. at 5; 8/4/2021 Lippard Decl. at ¶ 9.) Petitioners estimate more than 12% of detainees transferred from the southern border have tested positive for COVID-19, including detainees in general population. (Reply at 6.) There were approximately 137 positive cases between June 2021 to early August 2021. (Id. at 6 n.4; 7/29/2021 Suppl. Amon Decl. (Dkt. # 328) at ¶¶ 7, 9.) Since then, there have been over 90 more detainees that have tested positive. (See Dkt. ## 340, 345, 349, 350, 353, 354, 356, 357, 358, 359, 360, 362, 364, 365, 368.)
In recent months, several class members have been hospitalized due to COVID-19 symptoms. One detainee transferred from the southern border tested positive and was admitted to the hospital overnight. (Stip. of Facts at ¶ 19.) Another transfer detainee tested positive and was sent to the hospital for examination, however, the detainee was not admitted and was returned to NWIPC. (Id. ) On August 6, 2021, a detainee was transported to the emergency room due to shortness of breath and low oxygen saturation levels. (8/6/21 Lippard Decl. (Dkt. # 350-1) at ¶ 16.) The detainee was stable and not admitted to the hospital. (Id. ) The detainee received a monoclonal antibody infusion and was returned to NWIPC within several hours. (Id. ) On August 9, 2021, a vaccinated detainee was transported to the hospital with COVID-19 symptoms. (8/10/21 Lippard Decl. (Dkt. # 354-1) at ¶ 15.) On August 18, 2021, another vaccinated detainee was sent to the hospital. (8/18/21 Lippard Decl. (Dkt. # 364-1) at ¶ 18.) Reports indicate the detainee had shortness of breath and low oxygen saturation levels but was stable. (Id. )
GEO and IHSC staff members have also recently tested positive for COVID-19. Since the end of July 2012, approximately sixteen GEO employees and two IHSC employees tested positive. (See Dkt. ## 338, 340, 349, 358, 359, 360, 362, 364, 366.) As of August 21, 2021, NWIPC was at 33.8% capacity. (8/21/21 Lippard Decl. (Dkt. # 368-1) at ¶ 8.)
III. DISCUSSION
A. Legal Standards
1. Temporary Restraining Order
The standard for issuing a TRO is the same as the standard for issuing a preliminary injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co. , 434 U.S. 1345, 1347 n.2, 98 S.Ct. 359, 54 L.Ed.2d 439 (1977). A TRO is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). "The proper legal standard for preliminary injunctive relief requires a party to demonstrate (1) ‘that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.’ " Stormans, Inc. v. Selecky , 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter , 555 U.S. at 20, 129 S.Ct. 365 ).
As an alternative to this test, a preliminary injunction is appropriate if "serious questions going to the merits were raised and the balance of the hardships tips sharply in the plaintiff's favor," thereby allowing preservation of the status quo when complex legal questions require further inspection or deliberation. All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1134-35 (9th Cir. 2011). However, the "serious questions" approach supports the court's entry of a TRO only if the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest. Id. at 1135. The moving party bears the burden of persuasion and must make a clear showing that it is entitled to such relief. Winter , 555 U.S. at 22, 129 S.Ct. 365.
B. Likelihood of Success on the Merits
To obtain a TRO, Petitioners must make a clear showing that they are likely to succeed on the merits or, alternatively, have raised serious questions going to the merits of their petition on Fifth Amendment grounds. To succeed on a habeas petition, Petitioners must show that they are "in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2241.
Petitioners are protected by the Fifth Amendment because they are federal civil detainees. See Zadvydas v. Davis , 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).
For the reasons stated below, the Court concludes that Petitioners have made a clear showing that they are likely to succeed on the merits of their Fifth Amendment claims.
1. Right to Reasonably Safe Conditions
In a footnote, Petitioners also assert that by allegedly failing to take safety measures required by Respondents’ policies and CDC guidelines to mitigate the risk of harm regarding COVID-19, Respondents are violating their Fifth Amendment rights because the conditions amount to punishment. (TRO at 18 n.6.) Because the Court finds Petitioners are likely to succeed on their Fifth Amendment claims regarding the right to reasonably safe conditions, discussed below, the Court need not address this argument.
"[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." DeShaney v. Winnebago Cnty. Dep't of Soc. Servs. , 489 U.S. 189, 199–200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). The government thus violates the Due Process Clause if it fails to provide civil detainees with "food, clothing, shelter, medical care, and reasonable safety." Id. at 200, 109 S.Ct. 998.
In DeShaney , the Supreme Court analyzed the petitioners’ rights under the Fourteenth Amendment. See 489 U.S. at 194–95, 109 S.Ct. 998. Fifth Amendment due process claims and Fourteenth Amendment due process claims are analyzed in the same way. See Paul v. Davis , 424 U.S. 693, 702 n.3, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).
The Ninth Circuit has analyzed such conditions of confinement claims under an objective deliberate indifference standard. See Castro v. Cnty. of L.A. , 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc) (adopting objective deliberate indifference standard based on Kingsley v. Hendrickson , 576 U.S. 389, 135 S. Ct. 2466, 192 L.Ed.2d 416 (2015), to evaluate failure to protect claim brought by pretrial detainee); see also Habibi v. Barr , 445 F.Supp.3d 990, 996-98 (S.D. Cal. 2020) (applying Castro ’s objective deliberate indifference standard to the petitioner's reasonable safety claim based on COVID-19). The elements of such a claim are:
(i) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;
(ii) Those conditions put the plaintiff at substantial risk of suffering serious harm;
(iii) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant's conduct obvious; and
(iv) By not taking such measures, the defendant caused the plaintiff's injuries.
Castro , 833 F.3d at 1071.
Petitioners argue Respondents have failed to provide reasonably safe conditions by failing to test detainees for COVID-19 before transfer to NWIPC and failing to safely cohort detainees during transfer based on test results or exposure. (TRO at 10-12.) Petitioners argue Respondents are therefore not complying with CDC guidance and have knowingly transferred untested detainees, exposing class members to COVID-19. (Id. ) Petitioners also argue Respondents fail to provide rapid PCR tests before designating housing assignments during intake at NWIPC, thereby creating the potential for a detainee who unknowingly has COVID-19 to transmit it to others in the quarantine unit. (Id. at 7.)
Petitioners also contend the use of open bay units should only be used as a last resort according to CDC guidelines. (TRO at 7-8.) Respondents report ICE has used open bay housing units twice as NIMs units. (8/4/2021 Lippard Decl. at ¶ 30.) On one occasion, detainees were placed in open bay housing instead of celled housing units due to human error. (Id. ) On the second occasion, no celled housing units were available and ICE determined it could use open bay housing for an incoming flight of detainees because they had cleared new intake quarantine at the sending facility and tested negative for COVID-19 prior to their transfer. (Id. ) However, two of the detainees from that transfer tested positive for COVID-19 during intake at NWIPC. (Id. at ¶ 31 n.10.)
In support of their arguments, Petitioners direct the Court to the increase in positive cases at NWIPC since ICE's resumption of transferring detainees from the southern border, including outbreaks in NIMs units and general population, and hospitalizations due to COVID-19 symptoms. (Id. at 12-13.) Petitioners also assert that dozens of transferred detainees have tested negative at intake, but later test positive due to exposure during transfer or quarantine in NIMs units. (Id. at 13 (citing 7/29/2021 Suppl. Amon Decl. at ¶¶ 8, 12-13).) Petitioners argue that by failing to take reasonable available measures to abate the risk of detainees contracting COVID-19, and failing to follow CDC guidelines, Respondents have made an intentional decision to transport untested detainees to NWIPC that has caused Petitioners injury. (Reply at 6-7 (citing, e.g. , Hernandez Roman v. Wolf , No. EDCV-20-00768TJH-PVCX, 2020 WL 5797918, at *3 (C.D. Cal. Sept. 29, 2020) (pointing to the failure to test and follow CDC guidelines as reasons ICE was deliberately indifferent), aff'd in part, vacated in part, remanded , 977 F.3d 935 (9th Cir. 2020) ; Zepeda Rivas v. Jennings , 504 F. Supp. 3d 1060, 1065 (N.D. Cal. 2020) (similar)).) Respondents contend CDC guidance does not mandate testing prior to transfer between facilities, but rather recommends at a minimum testing at one facility or the other, and that the procedures Respondents currently have in place are objectively reasonable available measures to abate the risks associated with COVID-19. (Fed. Resp. at 20 (citing CDC Testing Guidance).) Respondents note ICE screens detainees before transport, before entrance to NWIPC, and during medical intake, and also voluntarily tests detainees upon arrival at NWIPC and subjects detainees to the NIMs process. (Id. )
Respondents also argue testing prior to ICE custody is not currently feasible. (Id. ) Specifically, Respondents assert the number of detainees that can be processed at one time is limited due to the space and time needed to examine each detainee, and that the intake process for a flight of 60 detainees can take approximately 6 hours and a flight of 100-130 detainees can take approximately 10-11 hours. (Id. (citing 8/4/2021 Malakhova Decl. (Dkt. # 348) at ¶¶ 19, 23).) Respondents assert that testing large numbers of detainees on an airport tarmac prior to transfer and conducting rapid testing for incoming detainees at NWIPC before intake would be too lengthy and require additional staff. (Id. at 21.)
Respondents also argue CBP is not a party to this litigation, and therefore the Court lacks jurisdiction over testing CBP detainees before ICE custody. (Fed. Resp. at 15-16.) Respondents further contend that Petitioners’ request for an injunction regarding testing detainees prior to ICE custody extends beyond the class at issue which is defined as individuals that are detained at NWIPC. (Id. ) The Court finds that regardless of the Court's jurisdiction over CBP, it has jurisdiction over ICE and its actions that may violate the rights of current class members confined at NWIPC.
a. Intentional Decision
The Court finds Respondents’ conduct constitutes an intentional decision. Since resuming the transfer of detainees from the southern border, ICE has transferred over 1,000 detainees knowing that detainees from CBP facilities are not tested. Although ICE screens detainees upon taking custody from CBP, temperature checks and asking for self-reports regarding risk factors is insufficient to identify asymptomatic detainees. Further, the increase in numbers of positive tests in recent months indicates the southern border transfers are exposing detainees at NWIPC to COVID-19. Between March 2020 and April 12, 2021, only 34 COVID-19 cases were confirmed at NWIPC. (4/12/21 Malakhova Decl. (Dkt. # 266) at ¶ 57.) Since ICE resumed transferring detainees in June 2021, over two hundred detainees have tested positive and at least five class members have been hospitalized. Additionally, GEO and IHSC employees have tested positive. Notably, almost every flight transferring detainees from the southern border to NWIPC since June 2021 has transported detainees who have tested positive for COVID-19 at NWIPC. (Compare 8/4/2021 Lippard Decl. at ¶ 9 (summary of transfer dates of detainees) with 7/29/2021 Suppl. Amon Decl. at ¶ 13 (showing number of detainees to test positive upon arrival at NWIPC for each transfer.) Despite this surge in positive cases, Respondents continue to transfer untested detainees thereby exposing detainees and class members to COVID-19 at NWIPC. The Court finds Respondents have acted intentionally. See Castro , 833 F.3d at 1070 (a failure to act with respect to a known condition of confinement may constitute an intentional decision).
b. Substantial Risk of Serious Harm
The Court finds Petitioners have shown the circumstances regarding transferring detainees from the southern border to NWIPC establish a substantial risk of serious harm of exposing class members to COVID-19. While "[n]o one can entirely guarantee safety in the midst of a global pandemic," Dawson v. Asher , No. C20-409-JLR-MAT, 2020 WL 1704324, at *12 (W.D. Wash. Apr. 8, 2020), the sharp increase in positive cases and hospitalization of class members since ICE resumed transferring detainees shows its practice of transferring untested detainees poses a risk of serious harm. Further, the recent outbreaks in both quarantine units and general population show Respondents’ safety measures have not contained the spread of COVID-19 at NWIPC.
Respondents argue Petitioners cannot show that COVID-19 positive detainees were exposed to the virus during transportation or intake at NWIPC. (Fed. Resp. at 22.) However, this argument is unpersuasive in light of the timing of the increase in positive cases with ICE's resumption of transferring detainees, as well as evidence presented by Petitioners detailing the timing between dates of transfers and dates of positive tests in comparison to the average time from exposure to symptoms, indicating exposure likely occurred during transport or in NIMs units during intake quarantine. (7/29/2021 Suppl. Amon Decl. at ¶¶ 7-13, 28; 8/6/2021 Sec. Suppl. Amon Decl. (Dkt. # 352) at ¶¶ 15(e)-(g).)
c. Reasonable Available Measures
Respondents contend the procedures in place are reasonable available measures to abate the risk of exposure to COVID-19. However, the increase in cases despite these measures shows otherwise. The Court is likewise unpersuaded by Respondents’ argument that testing detainees before boarding flights to NWIPC is not feasible. There is nothing in the record to support ICE's position that there are no reasonable available measures to test detainees before they board flights for transfer to NWIPC. Rather, the record only provides information regarding Respondents’ ability, or lack thereof, to conduct rapid testing of transferred detainees prior to intake at NWIPC. (8/4/2021 Malakhova Decl. at ¶¶ 23-24 (explaining the time needed to collect each test, the number of tests that can be run at a time, and the need to run each test within a specified time of collection).) Thus, the Court finds Petitioners have made a showing that Respondents have not taken reasonable available measures to test detainees before transport to prevent exposure of COVID-19 to class members at NWIPC, even though a reasonable officer in the circumstances would appreciate the degree of risk of transferring untested detainees.
With regard to conducting rapid testing prior to intake at NWIPC, the Court finds this measure is not required at this time. Pursuant to this order, any detainee transferred by ICE and admitted to NWIPC will have been tested prior to transfer. Respondents also provide voluntary testing upon arrival at NWIPC. Thus, Respondents will be able to immediately separate detainees who are infected from those who are not and detainees who test negative will be subject to quarantine and retesting during the NIMs process.
d. Causation
Courts have recognized that unsafe prison conditions that create a risk of future injury are sufficient to sustain a constitutional violation without an additional showing of harm. See, e.g. , Helling v. McKinney , 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (recognizing that prison authorities may not "ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year," and noting that prison officials could not escape liability for exposing inmates to a serious, communicable disease on the ground that the complaining inmate showed no serious current symptoms)
Here, Petitioners have established a likelihood that the conditions at NWIPC place them at risk of serious harm, and in fact, numerous class members have already contracted COVID-19 and at least five have been hospitalized. Accordingly, Petitioners have satisfied the elements of the objective deliberate indifference test.
C. Likelihood of Suffering Irreparable Harm
The Ninth Circuit makes clear that a showing of immediate irreparable harm is essential for prevailing on a temporary restraining order. See Caribbean Marine Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). Petitioners must make a clear showing that "irreparable harm is likely in the absence of an injunction." Winter , 555 U.S. at 22, 129 S.Ct. 365. "Speculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction." Id. "It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’ " Melendres v. Arpaio , 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ). Courts have found irreparable harm likely with regard to COVID-19 based on its high mortality rate. Hernandez Roman v. Wolf , 977 F.3d 935, 944 (9th Cir. 2020). As discussed above, since ICE began resuming transfers from the southern border, over 1,000 detainees have been transferred to NWIPC. In the past several months, there has been an increase in positive tests and hospitalizations and outbreaks in both quarantine units and general population. The Court finds Petitioners have established a likelihood of success on the merits of their claims and therefore have established that irreparable injury is likely.
D. Balance of Hardships and Public Interest
When the government is a party, the last two prongs of the injunction analysis merge. Drakes Bay Oyster Co. v. Jewell , 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder , 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) ). In weighing equities, "the Court considers each party's claimed injury, as well as the effect that granting or denying Plaintiff's motion would have on the parties." Quinault Indian Nation v. Kempthorne , No. C9-5064 RBL, 2009 WL 734682, at *3 (W.D. Wash. Mar. 18, 2009). Respondents argue that not all CDC guidance is mandatory and that if they were required to test detainees at both facilities during a transfer, they would essentially be enjoined from transporting CBP detainees from the southern border. (Fed. Resp. at 24.) However, Petitioners’ requested relief would only prevent Respondents from transferring untested detainees in an unsafe manner. Were Respondents permitted to continue transferring untested detainees, Petitioners face a substantial risk of serious harm. The equities favor Petitioners.
As to public interest, "it is always in the public interest to prevent the violation of a party's constitutional rights." Melendres , 695 F.3d at 1002 (internal quotation marks omitted). Respondents assert it is in the public's interest for ICE to promptly determine which detainees can be released to avoid overcrowding at ICE facilities and provide more protection to medically vulnerable detainees. (Fed. Resp. at 25.) Although there may be an interest in avoiding overcrowding at ICE facilities, it is always in the public's interest to prevent a violation of Petitioners’ constitutional rights, which is the subject of this motion. Moreover, requiring ICE to take reasonable measures to prevent the spread of COVID-19 among detainees and employees at NWIPC is in the public's interest. Public interest favors Petitioners.
E. Remedy
The Court finds Petitioners have made a clear showing of the Winter factors and are therefore entitled to a TRO to remedy the likely constitutional violations. Petitioners request the Court order that Respondents are:
enjoined from admitting detainees to the Northwest Detention Center (NWDC) whose transfer and transport to the facility is not in accordance with the Center for Disease Control and Prevention's (CDC) Interim Guidance for Transporting by Air into, from, or within the United States of People with COVID-19 or COVID-19 Exposure and the CDC's Interim Guidance for SARS-CoV-2 Testing in Correctional and Detention Facilities. Provided transfers and transport comply with those policies, Defendants may continue to admit detainees to NWDC.
(Proposed Order (Dkt. # 324-1).)
While the Court agrees Petitioners are entitled to relief, the Court finds the proposed language overly broad. CDC guidance is just that – guidance – and even the CDC acknowledges that its recommendations are not always feasible. The Court hereby orders that ICE is required to test detainees for COVID-19 prior to transfer to NWIPC and to take all reasonable measures to ensure there is no cross-exposure between COVID-19 positive detainees and COVID-19 negative detainees during transport. Respondents are enjoined from admitting any detainee into NWIPC that was not transferred in compliance with this order.
IV. CONCLUSION
For the foregoing reasons, the Court orders Petitioners’ motion for temporary restraining order (dkt. # 324) be GRANTED, in part. The Court ORDERS ICE to test detainees for COVID-19 prior to transfer to NWIPC and to take all reasonable measures to ensure there is no cross-exposure between COVID-19 positive detainees and COVID-19 negative detainees during transport. Further, Respondents are ENJOINED from admitting any detainee into NWIPC that was not transferred in compliance with this order.