614 F. Supp. 3d 1175 (S.D. Fla. 2020)

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Gayle v. Meade

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Jun 5, 2020

614 F. Supp. 3d 1175 (S.D. Fla. 2020)

Opinion

Case No. 20-21553-Civ-COOKE/GOODMAN

2020-06-05

Patrick GAYLE, et al., Petitioners, v. Michael W. MEADE, et al., Respondents.

Andrea Montavon-McKillip, Legal Aid Service of Broward County, Inc., Plantation, FL, Anthony Richard Dominguez, Mark Andrew Prada, Prada Urizar, PLLC, Lisa M. Berlow-Lehner, Americans for Immigrant Justice, Maia Fleischman, Paul R. Chavez, Southern Poverty Law Center, Miami, FL, Romy Louise Lerner, Rebecca Ann Sharpless, University of Miami School of Law Immigration Clinic, Coral Gables, FL, Chad Andrew Peterson, Kathryn Stewart Lehman, King, Spalding LLP, Atlanta, GA, Gregory P. Copeland, Pro Hac Vice, Sarah T. Gillman, Pro Hac Vice, Rapid Defense Network, New York, NY, Scott Michael Edson, King & Spalding LLP, Washington, DC, for Petitioners Patrick Gayle, Julio Edwards, Eitan Yefet, Fernando Goncalves, Manuel Lopez Perez, Ricardo Perezo Alonzo, Thomas Lenor, Alejandro Vincenzo Mugaburu Tapia, Ariel Lucien, Mohamed Hassan Ali, Carlos Hedman Perdomo, Evarado Orantes Acevedo, Jose Galdino Montalvo Rodriguez, Abel Carrillo, Maikel Carrasco Polo, Miguel Angel Marroquin Perez, Maria Eugenia Rodriguez Claras, Crisley Sacrab-Bin, Danny Ruiz Garcia, Deivys Perez Valladares, Rolando Aguabella Martinez, Yaniel Machado Aguila, Omar Lopez-Jaramillo, Farhan Nawabit, Maxuel A. De Souza. Andrea Montavon-McKillip, Legal Aid Service of Broward County, Inc., Plantation, FL, Anthony Richard Dominguez, Mark Andrew Prada, Prada Urizar, PLLC, Lisa M. Berlow-Lehner, Americans for Immigrant Justice, Maia Fleischman, Paul R. Chavez, Southern Poverty Law Center, Miami, FL, Rebecca Ann Sharpless, Romy Louise Lerner, University of Miami School of Law Immigration Clinic, Coral Gables, FL, Chad Andrew Peterson, Kathryn Stewart Lehman, King, Spalding LLP, Atlanta, GA, Gregory P. Copeland, Pro Hac Vice, Sarah T. Gillman, Pro Hac Vice, Rapid Defense Network, New York, NY, Scott Michael Edson, King & Spalding LLP, Washington, DC, for Petitioners Aparicio P. Jeronimo, Tolentino Martinez Rios, Javier Antonio Arias-Martinez, Juan Carlos Alfaro Garcia, Fermin Tepetate-Martinez, Abdul Jalloh, Darwyn Yovanny Navarrette Sanchez, Muhammad Alam Khan, Jose Chavez, Lazaro Ocana Guzman, Naim Arrak, Agane Warsame, Hassan Mohamed Farah, Ruben Orlando Flores Ramos, Mohamed Hassan, Eliseo Antonio Zamora Mendoza, Cesar Ariel Mendez Escobar, Roseline Ostine, Tahimi Perez, Franklin Ramon Gonzalez, Francisco Rivero Valeron, Irvin Medoza Silis, Geraldo Vargas, Dairon Barredo Sanchez, Rene Jonathan Rosas Cardenas, Adrian Sosa Fletes, Alejandro Ferreira Borges, Maikel Betancourt, Gelber Sontay Funez, Sirvanildo Bibiano Soares, Maykel Valera Ramirez. Andrea Montavon-McKillip, Legal Aid Service of Broward County, Inc., Plantation, FL, Anthony Richard Dominguez, Mark Andrew Prada, Prada Urizar, PLLC, Lisa M. Berlow-Lehner, Americans for Immigrant Justice, Maia Fleischman, Paul R. Chavez, Southern Poverty Law Center, Miami, FL, Rebecca Ann Sharpless, Romy Louise Lerner, University of Miami School of Law Immigration Clinic, Coral Gables, FL, Chad Andrew Peterson, Kathryn Stewart Lehman, King, Spalding LLP, Atlanta, GA, Gregory P. Copeland, Sarah T. Gillman, Pro Hac Vice, Rapid Defense Network, New York, NY, Scott Michael Edson, King & Spalding LLP, Washington, DC, for Petitioner Wilder Perez Limones. Andrea Montavon-McKillip, Legal Aid Service of Broward County, Inc., Plantation, FL, Anthony Richard Dominguez, Mark Andrew Prada, Prada Urizar, PLLC, Lisa M. Berlow-Lehner, Americans for Immigrant Justice, Maia Fleischman, Paul R. Chavez, Southern Poverty Law Center, Miami, FL, Rebecca Ann Sharpless, Romy Louise Lerner, University of Miami School of Law Immigration Clinic, Coral Gables, FL, Chad Andrew Peterson, Kathryn Stewart Lehman, King, Spalding LLP, Atlanta, GA, Gregory P. Copeland, Pro Hac Vice, Sarah T. Gillman, Pro Hac Vice, Rapid Defense Network, New York, NY, Scott Michael Edson, King & Spalding LLP, Washington, DC, for Petitioner Ervin David Rodas Pedro. Dexter Lee, Natalie Diaz, United States Attorney's Office, Miami, FL, Michael A. Celone, U.S. Department of Justice, Washington, DC, for Respondents.

MARCIA G. COOKE, United States District Judge

Dexter Lee, Natalie Diaz, United States Attorney's Office, Miami, FL, Michael A. Celone, U.S. Department of Justice, Washington, DC, for Respondents.

OMNIBUS ORDER

MARCIA G. COOKE, United States District Judge THIS MATTER is before the Court on Petitioners’ Emergency Motion for Temporary Restraining Order and Motion for Preliminary Injunction for Proposed Class, ECF No. 4, Petitioners’ Expedited Motion for Class Certification, ECF No. 81, and Petitioners’ Motion to Compel Compliance with the Court's April 30, 2020, Temporary Restraining Order, ECF 106.

Petitioners are immigration detainees being held at three detention centers in South Florida. Petitioners assert that Respondents failure to protect them from infection with the coronavirus disease ("COVID-19") while detained violates their constitutional rights. Petitioners also assert that they are at imminent risk of contracting COVID-19 because their detention renders them unable to comply with the Centers for Disease Control and Prevention's ("CDC") guidelines. Accordingly, Petitioners request, inter alia , emergency injunctive relief in the form of release from government custody, protective health measures that help prevent transmission of COVID-19, and to enjoin the transfer of the detainees to any other detention facility.

In addition, Petitioners are filing on behalf of a putative class of approximately 1,400 individuals in civil immigration detention at three Florida detention centers pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2).

After considering the Motions and evidence submitted by the parties, arguments presented at the hearings held May 27, 2020 and June 2, 2020, and all relevant law, the Court GRANTS in part and DENIES in part Petitioners’ Application, ECF No. 4, as a preliminary injunction, GRANTS in part and DENIES in part Petitioners’ Expedited Motion for Class Certification, ECF No. 81, and GRANTS Petitioners’ Motion to Compel Compliance with the Court's April 30, 2020 Temporary Restraining Order, ECF 106.

I. BACKGROUND

On April 13, 2020, 34 civil immigration detainees (hereinafter "Petitioners") filed the instant action alleging that they are being held by the Miami Field Office of Immigration and Customs Enforcement (hereinafter "ICE") and housed at three detention centers—the Krome Detention Center in Miami ("Krome"), the Broward Transitional Center in Pompano Beach ("BTC"), and the Glades County Detention Center in Moore Haven ("Glades").

The named Petitioners are 58 individuals detained by the U.S. Immigration and Customs Enforcement ("ICE") on civil immigration charges. At the onset, 34 petitioners filed the instant action. Petitioners subsequently filed an Unopposed Motion, ECF No. 60, to add named petitioners. The Magistrate Judge granted the Motion, amending this action to include 24 additional petitioners. ECF No. 65.

As previously discussed in the Court's Order dated April 30, 2020, (ECF No. 76 at 3, n.9), this Court has jurisdiction to review claims related to conditions of confinement at Glades. See Masingene v. Martin , 424 F. Supp. 3d 1298, 1303 (S.D. Fla. 2020) ("[A] district court acts within its respective jurisdiction ... as long as the custodian can be reached by service of process.")(internal citations omitted).

Petitioners all claim to be at imminent risk of contracting COVID-19 as a result of their inability to abide by the CDC's Guidelines and state and local directives during their continued detention. Each Petitioner further asserts that they are uniquely vulnerable to COVID-19 due to a range of serious chronic ailments including, inter alia , cancer, human immunodeficiency virus, and various respiratory issues. ECF Nos. 7; 8. A. Procedural History

On April 13, 2020, Petitioners filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, ECF No. 1, and an Emergency Motion for Temporary Restraining Order ("TRO") and Motion for Preliminary Injunction for Proposed Class ("Motion for TRO/Preliminary Injunction"), ECF No. 4, alleging that Respondents are not taking proper measures to prevent the transmission of COVID-19. Petitioners assert three claims: (1) violation of the Due Process Clause of the Fifth Amendment (violation of detention standards), (2) violation of the Due Process Clause of the Fifth Amendment (violation of right to reasonable safety), and (3) violation of the Due Process Clause of the Fifth Amendment (state-created danger). In support of the Motion for TRO/Preliminary Injunction, Petitioners submitted the following declarations :

Admittedly, neither Doctor has personally examined any of the detention centers at issue in this matter. (ECF No. 63 at 42.) Both Doctors relied in part on declarations submitted by Liana J. Castano.

1. Declaration of Dr. Joseph Shin, MD, MSc ("Shin Declaration," ECF No. 1-2); and

2. Declaration of Dr. Pedro J. Greer, Jr., MD, FACP, FACG ("Greer Declaration," ECF No. 1-3).

In response to Magistrate Judge Jonathan Goodman's post-hearing administrative Orders, ECF Nos. 18; 19; 20, ICE submitted the following declarations:

1. Declaration of Juan A. Lopez Vega, Assistant Field Office Director ("Vega Declaration," ECF No. 30-1).

2. Declaration of Liana J. Castano, Acting Officer in Charge of the Krome Service Processing Center. ("Castano Declaration," ECF No. 33-1).

The Vega Declaration discussed BTC.

The Castano Declaration discussed Krome and Glades.

On April 14, 2020, the Court referred the Motion for TRO/Preliminary Injunction to Magistrate Judge. ECF No. 14. On April 17, 2020, the Magistrate Judge held a hearing and subsequently issued a 69-page report and recommendation ("R&R") on the TRO concluding that the remedy of release is unavailable to the Detainees. (ECF No. 63 at 51-55). This Court issued a 14-day TRO instructing ICE to adhere to its own guidelines and the CDC's guidelines in assessing and evaluating whether any of the Petitioners should be released. (ECF No. 76.) On May 2, 2020, the Court issued an Order clarifying, inter alia , that ICE is permitted to transfer detainees from the three facilities at issue only after first evaluating and assessing each detainee's eligibility for release pursuant to ICE guidelines on the pandemic response. (ECF No. 78.)

All hearings in this matter have been conducted via remote video conference in light of the danger posed by COVID-19.

On May 5, 2020, Petitioners filed a Motion for Class Certification. (ECF No. 81.) That same day, the Court referred the Motion for Class Certification to the Magistrate Judge. (ECF No. 82.) On May 14, 2020, the Magistrate Judge held a hearing on the Motion for Class Certification. (ECF No. 98.)

On May 15, 2020, the Court extended the TRO by 14 days pending the Magistrate Judge's R&R on the Motion for Class Certification and other hearings in the matter. (ECF No. 101.) On May 22, 2020, the Magistrate Judge issued an R&R recommending that the Court deny the Motion for Class Certification with respect to Petitioners’ demand for habeas corpus release but grant Petitioners’ Motion with respect to their conditions-of-confinement claims. (ECF No. 111 at 4-5.)

The Magistrate Judge did not view Petitioner's Motion for Class Certification as an "emergency" and designated the 14-day presumptive deadline for written objections established by Local Rule 4. However, on May 29, 2020, the Magistrate Judge sua sponte issued an Amended R&R on the Motion for Class Certification, which is "substantively identical to the first version." (ECF No. 123 at 1, n.1.). In so doing, the Magistrate Judge extended the parties time to file objections by an additional 14 days. To promote judicial economy and preserve resources, the Court requested that the parties consent to extend the TRO until June 15, 2020, to allow the parties the opportunity to submit any Objections to the Amended R&R before the Court issued an Order. Respondents did not consent to an additional extension. On June 1, 2020, the Court issued an Order instructing the parties to file all Objections to the R&R on June 3, 2020 pursuant to Local Rule 4(a).

On May 15, 2020, the Court set a Motion Hearing for May 27, 2020, regarding the Petitioners’ Emergency Motion for TRO and Motion for Preliminary Injunction. (ECF No. 101.) On May 20, 2020, Petitioners filed an Emergency Motion to Compel Compliance with the Court's April 30, 2020, Order alleging that Respondents had not fully complied with the Court's April 30, 2020, Order. (ECF No. 106.) The Court set an expedited briefing schedule on the Motion to Compel and instructed the parties to be prepared to discuss the Motion to Compel at the May 27, 2020, Motion Hearing. (ECF No. 107.)

On May 27, 2020, the Court held a hearing on Petitioners’ Motion for TRO/Preliminary Injunction and Motion to Compel. (ECF No. 120.) On May 28, 2020, Respondents consented to an extension of the TRO for an additional seven days. (ECF No. 119.) On June 2, 2020, the Court held a second hearing on the Petitioners’ Motion for TRO/Preliminary Injunction, during which Petitioners presented testimony from Dr. Joseph Shin. On June 3, 2020, the Court held a third hearing on the Petitioners’ Motion for TRO/Preliminary Injunction, during which Petitioners presented testimony from three detainees—Steve Cooper, a 39-year-old Jamaican native currently detained at Glades, Alejandro Ferreira Borges, a 29-year-old Cuban native currently detained at BTC, and Deivys Perez Valladares, a 35-year old Cuban native currently detained at Krome.

Each witness also submitted a declaration regarding the conditions of confinement at each of the detention centers at issue. This Order is issued two days after the June 3, 2020, hearing. In light of the expeditious turnaround, the Court relied on a rough draft of the transcript the court reporter submitted to the Court.

B. Facts

i. COVID-19 Transmission in Immigration Detention Facilities

Since the filing of this action, the coronavirus pandemic has continued to spread. To date, over 100,000 people have died from COVID-19 in America. And at least two individuals have died in ICE custody due to COVID-19. Some experts estimate that up to 400,000 Americans may die from COVID-19 in approximately one year. COVID-19 is a highly infectious deadly disease believed to transmit among people through respiratory droplets released by coughing or sneezing, as well as through contact with infected individuals. (Shin Decl. ¶7.) The medical and science community believe COVID-19 is an airborne virus spread by individuals who are pre-symptomatic (individuals who have contracted the disease but do not yet display symptoms of the disease), asymptomatic (individuals displaying no symptoms despite having contracted the virus), and symptomatic (individuals that have contracted the virus and exhibit symptoms of the disease) spread the disease. (Shin Dec. ¶22.) Indeed, estimates suggest that as many as 15-57% of infected individuals display no symptoms at the time of testing. (Shin Decl. ¶ 7.)

Johns Hopkins University Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html (last updated June 5, 2020, 12:00 p.m. EST).

There are over 6 million confirmed COVID-19 cases globally and over 380,000 deaths. At the commencement of this lawsuit in April 2020, there were over 1 million confirmed COVID-19 cases globally and over 380,000 deaths. (See, e.g. Shin Decl. ¶4.)

https://www.ice.gov/coronavirus.

https://abcnews.go.com/amp/Health/coronavirus-updates-us-100-million-doses-vaccine-end/story?id=71038663.

Recent data suggests that has almost 13% of transmission occurs from asymptomatic individuals before they start to show symptoms. (Greer Decl. ¶9.)

Experts’ collective knowledge about COVID-19 has continued to evolve exponentially over a short period of time. The virus’ effect in individuals ranges from mild to severe, resulting in death in approximately 1-4% of confirmed cases. (Shin Decl. ¶9; Greer Decl. ¶19.) COVID-19, which was originally thought to primarily affect the elderly, has proven that no age demographic is spared from the virus. (Greer Decl. ¶18.) There have been reports of children as young as five years dying after contracting the virus. There have also been reports of adults in the 20-40 age bracket being severely affected by the virus. (Shin Decl. ¶10.) Most people who contract the disease will develop mild respiratory infection. (Greer Decl. ¶19.) However, serious illness occurs in at least 16% of cases and death is most common among people with underlying chronic health conditions, such as heart disease, lung disease, liver disease, and diabetes. (Id. ) People with severe symptoms may require ventilation and intravenous antibiotics. (Id. at ¶20.) Further, COVID-19, originally believed to attack human lungs, demonstrably also affects various other organs, including the brain, heart, and kidneys. Studies show that even where people recover from COVID-19, they may face serious permanent complications, including lung scarring.

https://www.cnn.com/2020/04/21/us/detroit-girl-dies-coronavirus/index.html

https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-and-covid-19-younger-adults-are-at-risk-too.

https://www.washingtonpost.com/health/2020/05/10/coronavirus-attacks-bodysymptoms/?arc404=true.

https://www.sciencenews.org/article/coronavirus-covid-19-some-patients-may-suffer-lasting-lung-damage.

Detention centers are not isolated communities. Staff, visitors, contractors, and vendors can bring infectious diseases into facilities. (Greer Decl. ¶9.) COVID-19 has already started to spread inside prisons and detention centers across the United States. To date, there are over 1,600 confirmed COVID-19 cases among those detained in ICE custody nation-wide. Moreover, congregate settings such as detention facilities where people share common dining areas, bathrooms, and other common areas allow for rapid spread of infectious diseases. (Greer Decl. ¶¶9-10; Castano Decl. ¶15.) Detention facilities are often over-crowded, under-resourced, and ill-equipped in the event of a contagion. (Shin Decl. ¶14; Greer Decl. ¶11.)

ICE Guidance on COVID-19 https://www.ice.gov/coronavirus

Detainees often have to wait several days to see a medical doctor for serious medical concerns. (Greer Decl. ¶25.) Further, detention facilities often lack onsite medical facilities or 24-hour medical care, which can be crucial in identifying and managing infectious disease. (Greer Decl. ¶¶12-13.) During a contagion, staff may fall ill and fail to attend work, which in turn increases the risk of spread because of the reduced level of care provided. (Greer Decl. ¶15.) Thus, the risk of wide-spread transmission of COVID-19 in detention centers is "significantly higher than in the community." (Shin Decl. ¶13.)

ii. CDC's and ICE's Pandemic Response Guidelines

There is no vaccine or cure for COVID-19. (Shin Decl. ¶11.) Public health strategies are the only effective methods to mitigate the spread and impact of the virus. (Shin Decl. ¶12; Greer Decl. ¶21.) Accordingly, both the CDC and ICE promulgated a set of guidelines and recommendations intended to protect detainees and staff from contracting the disease.

a. The CDC's Pandemic Response Guidelines

On March 23, 2020, the CDC issued an Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (the "CDC's Guidelines"), which applies to "incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody." The CDC's Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities (March 23, 2020) at 26.

Available at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html

Due to the highly contagious nature of COVID-19 and its rapid spread, the CDC recommends, inter alia , frequent hand washing, use of hand sanitizers, and social distancing—maintaining a minimum of six feet between and among persons to mitigate transmission and minimize disease.

Centers for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), Available at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html

On the subject of cohorting, the CDC's Guidelines advise that people exposed to COVID-19 should be put in individual, not group, quarantine: "Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually." Id. at 15; 19. Further, "[o]nly individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts." Id. at 16. Cohort quarantine "should only be practiced if there are no other available options," because "[c]ohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected." Id. at 15; 19. If cohorting of ill detainees is unavoidable, the CDC's Guidelines recommend "mak[ing] all possible accommodations until transfer occurs to prevent transmission of other infectious diseases to the higher-risk individual (For example, allocate more space for a higher-risk individual within a shared isolation room)." Id. at 17.

Cohorting is "the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group or quarantining close contacts of a particular case together as a group." Id. at 3.

As for transfers, the CDC's Guidelines recognize that, "[t]here are many opportunities for COVID-19 to be introduced to a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members." Id. at 2. Thus, the CDC's Guidelines contemplate that transfers should be utilized as a last resort. The CDC's guidelines state that transfers should be restricted to and from other "jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding." Id. at 9. The CDC's Guidelines specifically state, "[t]ransfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available." Id. at 16; 20. The CDC's Guidelines further state that confirmed cases should be restricted from leaving the facility while under medical isolation precautions, "unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns." Id. at 17. To the extent that a transfer is "absolutely necessary," the CDC Guidelines call for ICE to "perform verbal screening and a temperature check as outlined in the [CDC Guidelines] before the individual leaves the facility." Id. at 9. If an individual does not clear the screening process, ICE is expected to "delay the transfer and follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing." (Id. ) And "[i]f the transfer must still occur," ICE requires "ensur[ing] that the receiving facility has capacity to properly isolate the individual upon arrival." Id.

Medical isolation is not the equivalent of quarantining. Rather, medical isolation "refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission." Id. at 3.

As for new entrants, the CDC also recommends "quarantining all new intakes for 14 days before they enter the facility's general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case)." Id. at 14. (emphasis in original). The CDC further specifies that detention centers should conduct "pre-intake screening and temperature checks for all new entrants" and to put new intakes with symptoms (fever, cough, shortness of breath) in medical isolation. Id. at 10.

b. ICE's Pandemic Response Guidelines

Some ICE detention centers are subject to ICE's Performance-Based National Detention Standards 2011 ("PBNDS"), while other detention centers are subject to ICE's National Detention Standards ("NDS"). Section 4.3(II)(10) of ICE's PBNDS requires that "Centers for Disease Control and Prevention (CDC) guidelines for the prevention and control of infectious and communicable diseases shall be followed." (PBNDS at 258.) Similarly, section 1.1(I) of the NDS, mandates "facilit[ies] will operate in accordance with all applicable regulations and codes, such as those of ... the Centers for Disease Control and Prevention (CDC)...." (NDS at 1.) Accordingly, ICE issued its own set of directives and guidelines regarding the coronavirus pandemic that largely comports with the CDC's described guidelines. On April 10, 2020, ICE released its COVID-19 Pandemic Response Requirements, which include "specific mandatory requirements" and best practices for all facilities housing ICE detainees. ICE's COVID-19 April 10, 2020 Pandemic Response Requirements (("PRR") at 3, 4.) Like the CDC's Guidelines, ICE's PRR emphasizes that social distancing should be promoted within detention centers. Specifically, ICE's PRR states, "all staff and detainees should maintain a distance of six feet from one another." Id. at 12. Staff and detainees are also instructed to "avoid congregating in groups of 10 or more, employing social distancing strategies at all times." Id. at 13. The PRR goes on to state, "[i]f practicable, beds in housing units should be rearranged to allow for sufficient separation during sleeping hours." Id.

ICE's COVID-19 April 10, 2020 Pandemic Response Requirements. Available at: https://www.ice.gov/doclib/detentionstandards/2011/pbnds2011r2016.pdf.

Available at: www.ice.gov/doclib/detention-standards/2019/nds2019.pdf

Available at: https://www.ice.gov/sites/default/files/documents/Document/2020/eroCOYID19responseReqsCleanFacilities.pdf

Similar to the CDC's Guidelines, the PRR cautions, "[o]nly individuals who are laboratory-confirmed COVID-19 cases should be isolated as a cohort. Do not cohort confirmed cases with suspected cases or case contacts." Id. at 14. "Cohorting should only be practiced if there are no other available options." Id. However, if cohorting of ill detainees is unavoidable, ICE is instructed to "make all possible accommodations until transfer occurs to prevent transmission of other infectious diseases to the higher-risk individual (For example, allocate more space for a higher-risk individual within a shared isolation room)." Id. at 15.

As to transfers, ICE's PRR also states, "[w]here possible, restrict transfers of detained non-ICE populations to and from other jurisdictions and facilities unless necessary for medical evaluation, isolation/quarantine, clinical care, or extenuating security concerns." Id. at 13. Notably, ICE's PRR make no mention of utilizing transfers as a means to control population size during the pandemic.

Beginning in 2004, Congress has appropriated funding to ICE for an Alternatives to Detention program created to provide supervised release and enhanced monitoring for a subset of foreign nationals subject to removal whom ICE has released into the United States. Detainees may be released on parole, bond, home detention, etc., through the Alternatives to Detention program. In fact, ICE has reportedly utilized its alternative detention program to release hundreds of immigrants in detention as coronavirus spreads in detention centers. (ECF No. 63 at 40, n.11.)

The PRR calls for detainees to be quarantined for 14 days prior to entering the general population. Id. at 14. New entrants are to be assessed for fever and respiratory illnesses prior to entering the facility. (Castano Decl. ¶9.) Pursuant to the PRR, ICE should "consider cohorting daily intakes; two days of new intakes, or multiple days on new intakes, in designated areas prior to placement into the general population." Id.

ICE's PRR also states all facilities housing ICE detainees must:

• Ensure that all staff and detainees wear cloth face coverings (when protective equipment supply is limited) to help slow the spread of COVID-19;

• Instruct staff and detainees to wear cloth face coverings when protective equipment supply is limited;

• Provide staff and detainees with no cost unlimited access to supplies for hand cleansing, including liquid soap, water, paper towels or dryers, and no-touch receptacles;

• Instruct personnel that "[A]ll staff and detainees should maintain a distance

of six feet from one another;" and

• Make efforts to reduce the population to approximately 75% of capacity, to promote social distancing.

(PRR at 7-14.)

iii. Reported Facilities Conditions

Declarations submitted in this matter contain substantially similar allegations. Common to each detention facility at issue is that: (1) Petitioners are held in a cohort quarantine; (2) Petitioners cannot social distance; (3) Petitioners have developed a cough but has not been tested for COVID-19; (4) Petitioners sleep in bunkbeds less than a meter away from each other; (4) Petitioners do not have adequate amounts of soap throughout the day; (5) Petitioners have difficulty washing their hands for 20 seconds because the water turns off too quickly; (6) Petitioners are concerned that the crowded conditions will result icontracting COVID-19; (7) most officers do not wear masks when near the detainees; (8) petitioners typically eat less than six feet away from other detainees; (9) dozens of detainees in a pod must share one toilet or the toilets are too close together for social distancing to occur; (9) Petitioners do not have access to masks, gloves, or hand sanitizer; and (10) Petitioners who prepare the food do not wear masks and sometimes do not wear gloves." (ECF No. 63 at 20-21.)

a. Krome

Krome is subject to ICE's PBNDS.

ICE owns the Krome detention center, but daily operations are contracted out to a private company, Akima Global Services. (Greer Decl. ¶7.)

At Krome, upon entering the facility, medical screenings are conducted on all detainees within a 12-hour time frame and detainees are screened for fevers and respiratory illnesses. (Castano Decl. ¶9.) During intake, detainees are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days. (Id. )

Detainees at Krome are subject to group cohorting. In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts for 14 days after most the recent exposure to an ill detainee and are monitored daily. (Id. at ¶11.) Housing units in cohort status are issued surgical face masks. (Id. )

Detainees share a living unit with at least 65 bunk beds. (Greer Decl. ¶24.) The distance between beds varies from 3 feet 2 inches to 4 feet 9 inches. (ECF No. 63 at 38.) Detainees are forced to either sit close to one another while they eat meals since tables and chairs are fixed to the floor or forced to wait in line together for meals. (Greer Decl. ¶24.)

The Krome medical facility has only a "limited number" of COVID-19 test kits. (ECF No. 63 at 37.)

At the onset of this action there were no confirmed cases of COVID-19 at Krome and no detainees being cohorted at Krome for exhibiting symptoms of COVID-19. (ECF No. 63 at 35.) Now, 20 Krome detainees have tested positive for COVID-19.

https://www.ice.gov/coronavirus.

b. Glades

Glades is subject to ICE's NDS.

Glades is a county jail, which houses immigration detainees pursuant to an inter-governmental service agreement with ICE. (Greer Decl. ¶7.)

Detainees at Glades share a clinic staff which manages male and female detainees and provides daily access to sick calls in a clinical setting, as well as mental health services and the ability to admit patients at the local hospital for medical and mental health care. (Castano Decl. at ¶13.) COVID-19 tests are available at the detention center. (Id. at ¶15.) However, Dr. Greer suspects that detainees often wait several days to have to see a medical doctor for serious medical concerns. (Greer Decl. ¶25.)

The detainee population at Glades is within its approved capacity and is "not overcrowded." (Castano Decl. ¶15.) Detainees share a living unit with at least 65 individuals. (Greer Decl. ¶24.) Glades issues male detainees four ounces of soap, twice a week, which is replenished as needed. (Castano Decl. ¶18.) Female detainees receive a 7.5-ounce bottle, at the same frequency. (Id. ) The housing units have available running water and soap 24 hours a day, seven days a week. (Id. at ¶30.)

The detainees are housed in a dormitory-style setting. The bunks are approximately 12 inches apart from the head of one bed to the foot of the next bunk and about seven feet apart, side to side. (Castano Decl. ¶30.) The distance between the upper bunk and lower bunk is 34 inches, and the distance between beds is 7 feet, 2 inches. (Castano Decl. ¶30.)

At present, ICE is cohorting 320 detainees "as a precautionary measure, per the established protocol."

To date, ICE houses 320 detainees at Glades. (ECF No. 131-1 ¶8.) ICE submission can be interpreted to mean that the entire detainee population at Glades is being cohorted together. ICE declares that the cohort is scheduled to end on June 3, 2020.

At the onset of this action there were no confirmed cases of COVID-19 at Glades County Detention Center, and no detainee was subject to cohorting. (Castano Decl. ¶14.) To date, 60 Glades detainees have tested positive for COVID-19.

At the June 3, 2020 Hearing, ICE admitted that it had discovered 58 COVID-19 cases at Glades. For that reason, it had determined to cease all transfers for a period of time. The Court notes that ICE's submissions to the Court differs from the statistics on its regularly updated website, which states that there are 60 confirmed COVID-19 cases at Glades to date. https://www.ice.gov/coronavirus (last updated June 5, 2020).

c. BTC

BTC is subject to ICE's PBNDS.

BTC is a private facility. The GEO Group operates the facility pursuant to an ICE contract. (Greer Decl. ¶7.)

At the BTC, upon entering the facility, medical screenings are conducted on all detainees within a 12-hour time frame and detainees are screened for fevers and respiratory illnesses. (Vega Decl. ¶9.) During intake, Detainees are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community transmission in the past two weeks (Id. )

Detainees are housed in rooms and separated by gender, with a maximum of six detainees per room. (Id. at ¶22.) Bunk beds in the male rooms are two feet apart. (Id. ) Bunk beds in the female rooms are 6.5 feet apart. (Id. ) Bunk beds in the male rooms are two feet apart. (Id. ) Bunk beds in the female rooms are 6.5 feet apart. (Id. ) The distance between chairs in the dining hall is four feet. (Id. ) The facility is also practicing social distancing by staggering meal lines with reduced numbers of individuals in the dining room and markers have been added every six feet to visually facilitate social distancing. (Id. )

In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts for 14 days after most recent exposure to an ill detainee and are monitored twice daily for fever and symptoms of respiratory illness. (Id. at ¶11.)

ICE states that BTC detainees are granted daily access to medical treatment at an onsite medical observation room, pharmacy, tele-psychiatry, and access to 24/7 specialty services and hospital care within the community. (Id. at ¶13.) However, Dr. Greer that detainees often wait several days to have access to a medical doctor for serious medical concerns. (Greer Decl. ¶25.)

At BTC, all detainees over 60 years of age have been released and the overall detention population has been reduced by 35 percent in accordance with ICE's Guidelines. (Vega Decl. ¶23.)

At the onset of this action there were no confirmed cases of COVID-19 at BTC and no detainees being cohorted for exhibiting symptoms of COVID-19. (ECF No. 63 at 35.) Now, 20 BTC detainees have tested positive for COVID-19.

https://www.ice.gov/coronavirus

iv. Aftermath of Temporary Restraining Order

On April 30, 2020, the Court issued a TRO in which it instructed the parties as follows:

1. Evaluate each of the detainees in the instant action consistent with ICE's PRR and inform the Court who among them can be released promptly in light of COVID-19.

2. Submit a report the Court informing the Court as to how it intends to accelerate its review of its "Alternatives to Detention" program (or other protocols resulting in detainee release) with the goal of reducing the population to 75% of capacity at each of the three detention centers within two weeks of this Order.

3. Perform an internal review pursuant to ICE's PRR and file with the Court weekly reports on the following

a. The number of detainees who have been released;

b. Which facility they were released from; and

c. The nature of the detainee released (e.g., in a high-risk category because of age or a specific, documented medical condition, etc.)

4. Submit reports on the following:

a. How many detainees it is housing on the date of reporting;

b. At which of the three centers the detainees are being housed;

c. Which of the detainees are considered "mandatory detainees"; and

d. Which of the detainees have no prior criminal convictions and no pending criminal charges.

5. Immediately comply with the CDC and ICE guidelines on providing adequate amounts of soap and water and cleaning materials to detainees at each of the three detention centers at issue. ICE was also required to provide masks to all detainees and shall replace those masks at least once per week.

6. Provide education and training about measures to reduce the health risks associated with COVID-19 to all staff members and detainees and to any new detainees or employees. ICE was also required to provide such education and training without any costs to the detainees.

Since the filing of this suit, ICE has filed several reports assuring the Court that it is complying with the TRO. A mere seven days after the filing of the TRO, ICE submitted a Report stating it had successfully reduced the populations at each detention center below 75% capacity. (ECF No. 89-1 ¶3.) By May 7, 2020, ICE had reviewed each of the 58 petitioners and determined that only six of the Petitioners were eligible for release. (Id. at ¶3.) In approximately that same time period, ICE released or removed a total of 60 detainees. (ECF No. 90-1 ¶3.) ICE had determined that the remaining petitioners were either subject to mandatory detention or facing pending criminal charges. (Id. ) As to each detention center, ICE submitted Reports stating the following:

To date, ICE has still released only six of the 58 Petitioners before the Court. (ECF No. 116-2 ¶29.) The Court's TRO and subsequent orders, if any, are moot as to the released Petitioners.

Krome. Upon intake, ICE detainees are given an opportunity to shower and are issued clean clothing, bedding, towels and personal items. (ECF No. 79-1 ¶4.) ICE staff at Krome issued every detainee a surgical mask. (Id. at ¶3.) Krome posted instructions in English, Spanish and Creole regarding the proper use of the masks and noting that masks will be replaced every Wednesday. (Id. at ¶4.)

Glades. Staff has issued every ICE detainee a surgical mask. (Id. at ¶8.) Staff also posted instructions in English, Spanish and Creole informing detainees about the proper use of the masks and noting that the masks will be replaced every Friday. (Id. at ¶8.) ICE detainees are provided adequate amounts of soap, water and cleaning materials. (Id. at ¶9.)

BTC. All detainees have been issued masks and encouraged to wear them in the presence of other detainees. (ECF No. 79-2 ¶4.) The masks are exchanged once a week. (Id. at ¶4.) Staff continues to provide detainees with adequate soap, hand sanitizers and other cleaning supplies. (Id. at ¶¶5-6.)

As to transfers between and among detention facilities, ICE explains that on May 5, 2020, after the TRO issued, ICE's Enforcement and Removal Operations division ("ERO") introduced a new COVID-19 checklist intended to provide ERO and contracted staff with steps to take prior to transferring, removing, or releasing an alien from ERO custody to further mitigate the spread of COVID-19. (ECF No. 116-2 ¶19.) The checklist requires verification of a detainee's current health status and exposure history prior to transfer. (Id. at ¶21.) According to ICE, Detainees scheduled for transfer must be cleared medically prior to the transfer. (Id. at ¶20.) Further, unless medically necessary, ICE does not transfer detainees that are in isolation, are symptomatic, have pending test results or that are cohorted due to exposure to a person with confirmed or suspected COVID-19. (Id. ) ICE states that ERO reviews the custody status of each detainee prior to transfer and obtained a medical clearance for each detainee transferred in accordance with the detention standards and ERO's PRR. (Id. at ¶22.) Once detainees are cleared for transfer, detention and transportation staff provide each detainee with a mask prior to transfer and counsel them on proper mask use. (Id. at ¶¶24-25.) ICE submits that "[d]etainee transfers are based upon bed-space considerations and custody classification." (Id. at ¶24.)

In evaluating the 58 Petitioners in the instant action, ICE populated a spreadsheet with information related to each Petitioner's chronic health conditions. (ECF No. 116-2 ¶¶5-6.) ICE then reviewed the custody status and other factors articulated by the court to determine who could be released. (Id. at ¶7.) ICE does not deny that social distancing is not possible at the detention centers. Instead, ICE notes that the CDC Guidelines states that its guidance may need to be adapted to each facility. (ECF 116-1 ¶32.) ICE states that it "encourages" social distancing between detainees by "encouraging detainees to sleep head to toe, staggering of recreation and meals, and suspension of social visitation." (Id. ) ICE goes on to submit that social distancing is not feasible because some of the furniture is fixed to the floor, making it impossible to rearrange furniture to allow for six feet of social distancing. (Id. at ¶30.)

ICE's Reports stand in stark contrast to the Petitioners’ allegation. The Petitioners contend that ICE is not complying with the TRO and continues to fail to protect the safety and well-being of Petitioners and others in its custody at Krome, Glades, and BTC. On May 20, 2020, Petitioners filed a Motion to Compel alleging that although ICE touts population reductions at the three facilities, ICE actually utilizes transfers to "[shuffle] people around the country to make the population statistics at Krome, Glades, and BTC look better on paper." (ECF No. 106 at 2.)

On June 3, 2020, Petitioners presented live witnesses currently held at each of the three detention centers and each testified that ICE had not educated the detainees on mask use or the importance of mask use. To the extent that ICE erected posters about COVID-19 and mask use, the posters were typically presented only in English. The witnesses also testified that during the transfer process there were not tested for COVID-19 and they were either not provided with masks or expected to use the same mask they'd been provided sometime during their detention. The witnesses also stated that mask use is inconsistent among staff and detainees. Each detainee testified that social distancing is still not possible at any of the detention centers.

Petitioners further allege that despite the aggressive utilization of transfers, ICE has not improved the conditions at any of the three detention centers. Most notably, social distancing is still not possible at these facilities. (ECF No. 106 at 2.) Further, access to soap, hand sanitizer, masks, gloves, and cleaning supplies is still not reliable or consistent. (ECF No. 106 at 2.) Petitioners request that this Court compel ICE to provide documentation of its determination for each detained individual before transferring them to a different facility.

The Petitioners’ submitted declarations support these allegations. The submitted declarations allege that they were either given ripped masks during detention or they were given masks for the very first time during transfer. (ECF No. 106-2 at 4, 18.) Most disturbing, some detainees are being transferred to different facilities within Florida without being first evaluated for COVID-19. (ECF No. 106-2.) Some detainees allege that they are transferred to processing centers where their temperatures are checked upon arrival, however soap is not readily available at the processing centers. (ECF No. 106-2 at 5.) In sum, the declarations assert that social distancing is not possible at the detention centers at issue, hygiene products are still in limited supply, and the use and distribution of masks among staff and detainees is inconsistent. (ECF No. 106.)

By contrast, ICE asserts that it properly exercised its broad discretionary authority pursuant to 8 U.S.C. § 1231(g)(1) to transfer detainees to other locations. (ECF No. 116 at 3-6.) ICE maintains that prior to transfer, ICE reviews the detainees’ medical history and obtains a medical clearance. (Id. at 7.) ICE also states that it created a new COVID-19 checklist to mitigate the effects of COVID-19 when transferring, removing, or releasing an alien from custody. (Id. at 7.) The checklist requires completion by ICE staff prior to a detainee being transferred out of the detention facility and is served on the detainee. (Id. at 7.) ICE admits that some detainees that were transferred from Krome to BTC have tested positive for COVID-19. However, ICE "does not believe that the transfer has resulted in an increase in COVID-19 cases at BTC." (Id. at 8.) ICE insists that the Court should defer to ICE's judgment on the management of detention facilities during the COVID-19 pandemic. (Id. at 10-11.) Last, ICE asserts that this Court lacks jurisdiction over detainees which ICE has transferred to locations outside of Florida. (Id. at 11-12.)

II. LEGAL STANDARD

A. Class Certification

Federal Rule of Civil Procedure 23 governs class certification. Class certification is proper where the party seeking certification demonstrates that: (1) each of the prerequisites of Federal Rule of Civil Procedure 23(a) have been met; and (2) the proposed class satisfies at least one of the requirements listed in Rule 23(b). Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 345, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). Rule 23(a) requires a showing that: (1) the proposed class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).

In addition to meeting the four prerequisites in subdivision (a), a party must also demonstrate one of the following: (1) a risk that separate actions would create incompatible standards of conduct for the defendant or prejudice individual class members not parties to the action; (2) the defendant has treated the members of the class as a class, making appropriate injunctive or declaratory relief with respect to the class as a whole; or (3) common questions of law or fact predominate over questions affecting individual members and that a class action is a superior method for fairly and efficiently adjudicating the action. See Fed. R. Civ. P. 23(b)(1)-(3). Once the requirements of Rule 23(a) and 23(b) are met, a Court must certify the lawsuit in question as a class action. Walco Investments, Inc. v. Thenen , 168 F.R.D. 315, 323 (S.D. Fla. 1996). Generally, Rule 23 is liberally construed in order to further its objectives. Id.

Most importantly, in determining whether to certify a class, the Court is not to examine the underlying merits of the claims. See Eisen v. Carlisle & Jacquelin , 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) ; See also Cox v. American Cast Iron Pipe Co. , 784 F.2d 1546, 1557 (11th Cir. 1986), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986).

B. Preliminary Injunction

A preliminary injunction is appropriate if the movant demonstrates: (1) a substantial likelihood of success on the merits; (2) that the preliminary injunction is necessary to prevent irreparable injury; (3) that the threatened injury outweighs the harm the preliminary injunction would cause the other litigant; and (4) that the preliminary injunction would not be averse to the public interest. Nken v. Holder , 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).

"The first two factors of the traditional standard are the most critical." Id. However, "the movant may also have his motion granted upon a lesser showing of a ‘substantial case on the merits’ when ‘the balance of the equities identified in factors 2, 3, and 4 weighs heavily in favor of granting the stay.’ " Garcia-Mir v. Meese , 781 F. 2d 1450, 1453 (11th Cir. 1986) (quoting Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981) (per curiam ), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983) ).

III. DISCUSSION

A. Class Certification

Petitioners seek certification of the following class:

All civil immigration detained individuals held by Respondents at the Krome Service Processing Center ("Krome"), the Broward Transitional Center ("BTC"), or at Glades County Detention Facility ("Glades") when this action was filed, since this action was filed, or in the future.

(ECF No. 81 at 5.) Petitioners assert that they have met all the requirements of Rule 23. ICE contends however, that Petitioners’ Motion for Class Certification should be denied because (1) it is overbroad, (2) the proposed class is not adequately defined, and (3) the proposed class would include detainees not detained at any of the three detention centers, such as those transferred to other detention centers. ICE also argues that this Court lacks jurisdiction over detainees transferred or released from ICE detention. The Magistrate Judge issued an Amended R&R recommending that the Court deny the class certification motion concerning the habeas corpus demand for release but grant the motion, in part, and certify a class of all current detainees at the three South Florida facilities for the conditions-of-confinement claims (as opposed to the claim for release). (ECF No. 123 at 4-5.)

i. Article III Standing

The Court must first address the threshold issue of standing as it applies to the proposed class. To satisfy constitutional standing in federal court, a habeas petitioner (like other litigants) "must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Spencer v. Kemna , 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (quoting Lewis v. Continental Bank Corp. , 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) ).

Here, Petitioners are threatened with a heightened risk of severe illness and death upon contracting COVID-19, and said threat is easily traceable to their confinement in ICE custody. Accordingly, the Court rules that the Petitioners easily meet Article III's standing requirements.

ii. Rule 23(a) Requirements

a. Numerosity

Rule 23(a)(1) requires that the class be so numerous that joinder of all members is impracticable. The question of whether Rule 23(a)(1) has been satisfied depends on the facts of each case. Walco Investments , 168 F.R.D. at 324.

Although a plaintiff need not show the precise number and identity of class members, mere speculation as to the number of parties involved and general allegations of numerosity are insufficient to satisfy Rule 23(a)(1). See Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925 (11th Cir. 1983). To satisfy this prerequisite, a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members. See Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981) ; See also Kreuzfeld A.G. v. Carnehammar, 138 F.R.D. 594, 599 (S.D. Fla. 1991) (there exists no definite standard as to the size a given class must attain in order to satisfy Rule 23(a)(1) ). While there is no fixed rule, a class size less than twenty-one is typically considered inadequate, while a class size of more than forty is generally adequate. Cheney v. Cyberguard Corp. , 213 F.R.D. 484, 489-90 (S.D. Fla. 2003) (citing Cox v. Am. Cast Iron Pipe Co. , 784 F.2d 1546, 1553 (11th Cir. 1986) ).

The number of class members, however, is not the determinative factor for establishing numerosity. Since the focus under Rule 23(a)(1) is on whether joinder of all members is practicable in view of the numerosity of the class, courts must consider a number of relevant factors, such as the geographic diversity of the class members, the nature of the action, the size of each plaintiff's claim, judicial economy and the inconvenience of trying individual lawsuits, and the ability of the individual class members to institute individual lawsuits. See Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d at 1038 ; See also Kreuzfeld A.G. v. Carnehammar, 138 F.R.D. at 599.

Petitioners are filing on behalf of a putative class of approximately 1400 individuals. In addition to the large number of members here, the class is also geographically dispersed across different counties in South Florida—detainees are being held in three ICE detention centers. The size and geographical diversity of the class renders joinder of all members impracticable. Gentry v. C & D Oil Co., 102 F.R.D. 490 (W.D. Ark. 1984) (joinder was impracticable where potential class members were located throughout a number of counties). For these reasons, the Court finds that the numerosity requirement of Rule 23(a)(1) has been met.

b. Commonality

The second prerequisite of Rule 23(a) requires that there be questions of law or fact common to the class. This prerequisite does not require that all of the questions of law or fact raised by the case be common to all the plaintiffs. See Cox v. American Cast Iron Pipe Co. , 784 F.2d 1546, 1557 (11th Cir. 1986), cert. denied , 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986) ; See also Haitian Refugee Center, Inc. v. Nelson, 694 F.Supp. 864, 877 (S.D. Fla. 1988), affirmed, 872 F.2d 1555 (11th Cir. 1989). However, commonality "requires at least one question common to all of the class members, the answer to which is "apt to drive the resolution of the litigation." Money v. Pritzker , Nos. 20-cv-2093, 20-cv-2094, 453 F.Supp.3d 1103, 1127 (N.D. Ill. Apr. 10, 2020) (internal citation omitted). "Commonality [also] requires the plaintiff to demonstrate that the class members have suffered the same injury." Dukes , 564 U.S. at 350, 131 S.Ct. 2541. The common contention of injury "must be of such a nature that it is capable of class wide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id.

Petitioners admit that there are "some factual differences between the class members claims." (ECF No. 81 at 9). Nevertheless, Petitioners assert that the commonality requirement is a low threshold, which is satisfied here because controlling questions of law and fact are common to the entire class--whether ICE has been deliberately indifferent to the risk that people detained at Krome, BTC, and Glades will contract COVID-19 due to the unhygienic conditions and an inability to protect themselves through social distancing and ICE's failure to implement its Alternatives to Detention Program. (Id. at 9-12.) Petitioners further argue that given how viruses spread, that deliberate indifference applies uniformly to all people in ICE custody at the three facilities at issue here. (Id. ) Petitioners also assert that ICE's uniformly unsanitary practices and its consistent refusal to follow CDC Guidelines at Krome, BTC, and Glades expose each class member to the same "substantial risk of serious harm." (Id. ) ICE asserts that the Motion should be denied because Petitioners have not satisfied the commonality requirement due to the "dissimilarities within the proposed class." (ECF No. 92 at 6.) ICE points to the fact that each of the three facilities has a different physical plant, configuration, as well as capacity for detaining individuals. (Id. ) ICE also argues that the Court cannot resolve claims central to each class member because whether a particular detainee's living arrangement meets CDC Guidelines, or demonstrates a lack of deliberate indifference, will depend upon an individualized determination. Thus, ICE contends that this is not a resolution of a claim central to each class member's claim "in one stroke." (Id. )

Petitioners claim entitlement to a comprehensive response to the pandemic. However, the Court observes that the relief sought by Petitioners is particularized and necessarily requires an individualized assessment of each detainees’ vulnerabilities to COVID-19, as well as an individualized assessment as to each detainee's eligibility for release. It is feasible that at least some petitioners will be denied release. But, Petitioners also allege a course of common conduct, which includes failure to implement adequate precautionary measures and protocols, lack of access to hygiene products, health products, education, testing, and personal protective equipment, and most important, social distancing has not been achieved. (ECF No. 123 at 44.) The Petitioners share two main legal questions—whether ICE's conduct at the three detention centers amount to deliberate indifference and expose detainees to substantial risk of harm, and whether such conduct results in conditions of confinement that violate Petitioners constitutional rights. See Wal-Mart , 564 U.S. at 350, 131 S.Ct. 2541 (commonality does not require perfect uniformity.) The existence, scope, and adequacy of those measures are central to all Petitioners’ claims.

The Court finds that Petitioners have met the commonality requirement of 23(a)(2) only with respect to their conditions of confinement claim.

c. Typicality

Under this third requirement of Rule 23(a), the named plaintiffs must present claims that are typical of the claims of the class. The typicality requirement centers on the relationship between the proposed class representatives and the other members of the class. Ibrahim v. Acosta , 326 F.R.D. 696, 700 (S.D. Fla. 2018). The named plaintiffs’ claims are typical if they stem from the same event, practice, or course of conduct that forms the basis of the class claims and are based upon the same legal or remedial theory. Walco Investments , 168 F.R.D. at 326 (internal citations omitted).

To meet the typicality requirement, the named plaintiffs must demonstrate that the members of the class have the same or similar grievances as themselves. Id. In other words, the named representatives must be able to establish the bulk of the elements of each class members’ claims when they prove their own claims. See General Telephone Company of Southwest v. Falcon , 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).

In the instant case, Petitioners allege that they've suffered the same injury because they're subject to the same confinement under the same unconstitutional conditions caused by the same entity, which is exposing them all to an unreasonable heightened risk of serious illness. (ECF No. 123 at 44.) These failures result in punitive conditions of confinement.

The Court finds that Petitioners have met the typicality requirement of 23(a)(3) only with respect to their conditions of confinement. d. Fair and Adequate Representation

The final prerequisite of Rule 23(a) requires a showing that the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4) ; Walco Investments , 168 F.R.D. at 327. Adequacy of the representation is a question of fact that depends on the assessment of two factors: "(1) whether plaintiffs’ counsel are qualified, experienced, and generally able to conduct the proposed litigation and ... (2) whether plaintiffs have interests antagonistic to those of the rest of the class." See Cheney v. Cyberguard Corp. , 213 F.R.D. 484, 496 (S.D. Fla. 2003) (quoting Kirkpatrick v. J.C. Bradford & Co. , 827 F.2d 718, 726 (11th Cir. 1987) ).

In determining whether a proposed class representative will adequately protect the interests of the class, the Court asks whether the proposed class representatives and their counsel have any conflicts of interest with any class members and whether the proposed class representatives and their counsel will prosecute the action vigorously on behalf of the class. Hanlon v. Chrysler Corp. , 150 F.3d 1011, 1020 (9th Cir. 1998).

ICE has not challenged the adequacy of Petitioners’ counsel. The Court notes that Petitioners’ counsel have extensive experience in representing clients in class action suits throughout the United States. There is no indication of a disqualifying conflict of interest. Accordingly, the Court is satisfied that Petitioners’ counsel and the proposed class representatives will fairly and adequately represent the interest of the class as to conditions of confinement.

The proposed class counsel are King & Spalding LLP, the Immigration Clinic at the University of Miami School of Law, the Rapid Defense Network (a New York State nonprofit legal services organization), Prada Urizar, LLC, the Southern Poverty Law Center, Americans for Immigrant Justice, and the Legal Aid Service of Broward County.

iii. Rule 23(b)

Having determined that the Petitioners have met the four prerequisites of 23(a), the Court must consider whether the class also satisfies one of the three provisions of Rule 23(b). In this action, Petitioners seek certification under Rule 23(b). Rule 23(b) sets out two requirements for the maintenance of a class action: (i) questions of law or fact common to the members of the class must predominate over any questions affecting only individual members; and (ii) a class action must be superior to other available methods for the fair and efficient adjudication of the controversy at hand. Fed. R. Civ. P. 23(b)(3).

To certify a class under Rule 23(b)(2), the Court must first find that common issues of law or fact predominate over individual issues. The critical inquiry is "whether class members seek uniform relief from a practice applicable to all of them." Rodriguez v. Hayes (Rodriguez I) , 591 F.3d at 1125-26 (9th Cir. 2010) (internal citation and quotation marks omitted) (finding certification under Rule 23(b)(2) proper where "proposed members of the class each challenge Respondents’ practice of prolonged detention of detainees without providing a bond hearing and seek as relief a bond hearing with the burden placed on the government").

Because ICE's actions and inactions apply to the class generally, the Court determines that Rule 23(b)(2) ’s requirements are satisfied. Parsons v. Ryan, 754 F.3d 657, 689 (9th Cir. 2014) (finding Rule 23(b)(2) satisfied where the state department of corrections established policies and practices that placed "every inmate in custody in peril" and all class members sought essentially the same injunctive relief). In addition, it would be extremely inconvenient and a waste of valuable judicial resources to try several hundred individual lawsuits.

The Court finds that class certification is appropriate.

B. Preliminary Injunction

The Court now considers whether a preliminary injunction is appropriate here. A preliminary injunction is an "extraordinary and drastic remedy," and a party seeking the relief bears the "burden of persuasion" to clearly establish all four prerequisites. Wreal, LLC v. Amazon.com, Inc. , 840 F.3d 1244, 1247 (11th Cir. 2016) (citing Siegel v. LePore , 234 F.3d 1163, 1176 (11th Cir. 2000) ); accord Levi Strauss & Co. v. Sunrise Int'l Trading Inc. , 51 F.3d 982, 985 (11th Cir. 1995). However, districts courts are empowered with broad equitable power—particularly in these uncertain times--to grant a remedy that may present the only adequate remedy. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15-16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) ("Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.").

Prison health is public health. In the face of a pandemic that has claimed over 100,000 lives in America, the Court finds that Petitioners are likely to succeed on the merits of one or more of their claims, will suffer irreparable harm as a result of the deprivation of their rights, and that the balance of equities and public interest heavily weigh in favor of granting preliminary relief.

Several district courts across the country have ordered the release of § 2241 alien detainee-petitioners, explaining that pressing health risks of COVID-19 combined with ICE detention necessitate release. See, e.g. Castillo v. Barr , No. 20-cv-00605, 449 F.Supp.3d 915 (C.D. Cal. March 27, 2020) (releasing petitioners and granting petitioners’ application for a TRO because "[u]nder the Due Process Clause, a civil detainee cannot be subject to the current conditions of confinement at Adelanto" even though there had been no confirmed cases reported at the facility); Roman v. Wolf , No. 20-cv-00768, 2020 WL 1952656, 2020 U.S. Dist. LEXIS 72080 (C.D. Cal. Apr. 23, 2020) (granting immigration detainees’ § 2241 petition for preliminary injunction and releasing them); Essien v. Barr , No. 20-cv-1034-WJM, 457 F.Supp.3d 1008, 2020 U.S. Dist. LEXIS 72422 (D. Co. Apr. 24, 2020) (granting immigration detainee's § 2241 petition for preliminary injunction and releasing 55-year old petitioner who suffered from hypertension even though there were no confirmed COVID-19 cases at the immigration detention center); Malam v. Adducci , No. 20-cv-10829, 452 F.Supp.3d 643, 2020 U.S. Dist. LEXIS 59407 (E.D. Mich. Apr. 5, 2020) (granting TRO and releasing habeas petitioner because she was "likely to succeed on the merits of her claim that her continued confinement during the COVID-19 pandemic violates her Fifth Amendment rights.")

i. Success on the Merits

Petitioners assert three claims: (1) Fifth Amendment violation (violation of detention standards), (2) Fifth Amendment and Eighth Amendment violations (violation of right to reasonable safety), and (3) Fifth Amendment violation (state-created danger).

Immigration detainees, like the Petitioners here, are subject to the same rights as civil detainees. Mehmood v. Guerra , 783 F. App'x 938, 941 (11th Cir. 2019) (holding that the district court improperly classified immigration detainee as a prisoner rather than as a civil detainee). And civil detainees are afforded "more constitutional protection, more considerate treatment, and conditions of confinement than criminals whose conditions of confinement are designed to punish." Youngberg v. Romeo , 457 U.S. 307, 321-22, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). The Government may not impose on civil detainees conditions that would violate a convicted prisoner's Eighth Amendment rights. See Hamm v. DeKalb Cty. , 774 F.2d 1567, 1573-74 (11th Cir. 1985) (citing City of Revere v. Mass. Gen. Hosp. , 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983)) ("[T]he due process rights of a [pretrial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner.").

The minimum standard of care to be provided to civil detainees under the Due Process Clause of the Fifth Amendment is the same as that allowed by the Eighth Amendment for convicted persons. Hamm , 774 F.2d at 1574 ; see also Bell v. Wolfish , 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (holding that the Due Process rights of a civil detainee are at least as great as the Eighth Amendment protections available to a convicted prisoner). The Due Process Clause similarly "imposes a duty on state actors to protect or care for citizens when the state affirmatively places a particular individual in a position of danger the individual would not otherwise have faced." Gregory v. City of Rogers, Ark , 974 F.2d 1006, 1010 (8th Cir. 1992) (en banc).

The Eighth Amendment prohibits the infliction of cruel and unusual punishment. Robinson v. California , 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Under that provision, the Government may not impose punishments that shock the conscience, involve unnecessary and wanton infliction of pain, offend evolving notions of decency, or are grossly disproportionate to the offense for which they are imposed. See Estelle v. Gamble , 429 U.S. 97, 102-03, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ; Gregg v. Georgia , 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ; Trop v. Dulles , 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). Various conditions, "alone or in combination, may deprive inmates of the minimal civilized measure of life's necessities. Such conditions could be cruel and unusual under the contemporary standard of decency." Rhodes v. Chapman , 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). On that basis, courts have held that government actors violate the Eighth Amendment when they are deliberately indifferent to a detainee's serious medical needs. See, e.g. Estelle , 429 U.S. at 106, 97 S.Ct. 285.

a. Deliberate Indifference to Medical Needs

Deliberate indifference to serious medical needs of prisoners "constitutes unnecessary and wanton" infliction of pain proscribed by the Eighth Amendment. Estelle , 429 U.S. at 104, 97 S.Ct. 285. To state a cognizable claim, a detainee must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment. Estelle , 429 U.S. at 106, 97 S.Ct. 285.

To prove deliberate indifference in violation of Eighth Amendment, a detainee must satisfy three burdens. First, the detainee must satisfy the objective component by showing that she had a serious medical need. Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005) (per curiam). Second, the detainee must satisfy the subjective component by showing that ICE officials acted with deliberate indifference to the serious medical need. Id. Third, the detainee must show that the injury was caused by ICE's wrongful conduct. See Goebert v. Lee Cty. , 510 F.3d 1312, 1326 (11th Cir. 2007) (citing Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir. 1995) ). Determining whether one had a serious medical need is an objective inquiry. A medical need satisfies the objective component when it "is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Id. While most cases are mild, COVID-19 has proven itself to be lethal in the most severe cases, with some portion of the infected expected to require either a ventilator or other intravenous treatment. (Greer Decl. ¶20.) Further, although experts agree that the most vulnerable demographics are the elderly or those with underlying medical conditions, COVID-19 attacks all age groups indiscriminately and it is impossible to determine who will succumb to the illness. It is possible that if Petitioners contract the disease, at least some of them will require a doctor's attention. Helling v. McKinney , 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) ("It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.") Petitioners have satisfied the objective component of the deliberate indifference test.

A medical need satisfies the subjective component when a plaintiff shows (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than negligence." Goebert , 510 F.3d at 1327. Here, it's hard to imagine that ICE is unaware of the risk of serious harm involved in contracting COVID-19. Indeed, ICE's conduct—creating a set of guidelines and recommendations specifically addressing the pandemic—at least impliedly acknowledges a risk of serious harm.

As previously noted, the CDC's Guidelines are clear that that transfers should be avoided or restricted and utilized as a last resort "unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding." (CDC's Guideline at 9.) The CDC's Guidelines further state that individuals with confirmed cases should be restricted from leaving detention facilities "unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns." (Id. at 17.) The CDC Guidelines also state that to the extent that a transfer is "absolutely necessary," ICE is to "perform verbal screening and a temperature check as outlined in the [CDC Guidelines] before the individual leaves the facility." (Id. at 9.) If an individual does not clear the screening process, ICE is expected to "delay the transfer and follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation , and evaluating them for possible COVID-19 testing." (Id. ) And "[i]f the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival." (Id. )

ICE's PRR similarly states, "[w]here possible, restrict transfers of detained non-ICE populations to and from other jurisdictions and facilities unless necessary for medical evaluation, isolation/quarantine, clinical care, or extenuating security concerns." (PRR at 13.) ICE has submitted to the Court that it has created checklists utilized to evaluate each detainee. Yet, the Court has been presented with declarations and live testimony claiming that ICE continues to flout this Court's Order by (1) failing to consistently evaluate detainees for COVID-19 before transferring them to other detention centers, (2) failing to provide protective masks during the transfer process; and (3) failing to provide meaningful access to hygiene products soap, hand sanitizers, masks, gloves and cleaning supplies. (ECF Nos. 106; 106-2.).

ICE openly admits that testing at some of the detention centers are limited. (ECF No. 33-1 ¶15.) The Court is well aware that testing capabilities is limited nationwide. However, since the introduction of COVID-19, experts have developed antibody tests which effectively demonstrate whether an individual ever contracted the disease in the past. To the Court's knowledge, such antibody tests are more readily available and accessible than COVID-19 tests. Accordingly, the Court speculates that ICE may utilize such antibody tests in making a thorough assessment about a detainee's COVID-19 status, which may in turn inform whether a detainee should be transferred. While unproven, experts believe that people who have contracted the disease retain at least some immunity to the virus for a period of time. https://www.livescience.com/covid-19-immunity.html. Presumably, detainees who test positive for COVID-19 antibodies may have acquired immunity which would make them a candidate for transfer.

At the June 3, 2020, Hearing Mr. Borges provided testimony about his lived experience with ICE's transfer process. Mr. Borges testified that he was not tested for COVID-19 before he was transferred from BTC to Stewart Detention Center ("Stewart") in Georgia. He also testified that he was not processed at Stewart upon arrival. Rather, he was almost immediately transferred back to BTC. He was not tested before he was transferred from Stewart back to BTC. Mr. Borges also testified that he was not provided a mask during the transfer process, so he used the same mask, soiled from two days of wear, before his transfer from BTC to Stewart. Mr. Borges wore the same mask when he was transferred back to BTC. Disturbingly, guards did not wear masks during Mr. Borges’ transfer process. Indeed, the ICE guard that escorted Mr. Borges to the Hearing was not donning a mask, despite being seated a mere two feet away from Mr. Borges. Such behavior not only violates the spirit and the letter of TRO, it also amounts to deliberate indifference because it demonstrates a blameworthy disregard of the risks posed by COVID-19 by exponentially increasing the risk of spreading the virus to other detention centers —conduct that far exceeds mere negligence and evidences a reckless state of mind. ICE does not test all detainees before transferring them because it doesn't have enough tests to do so. (ECF No. 63 at 37.) Instead, ICE only tests people who display symptoms (Id. )—which may have resulted in the transfer of some detainees who are asymptomatic but still carry the virus. In fact, media reports state that an increase in COVID-19 cases across all three detention centers largely correlates with the increase in ICE transfers during the pandemic.

Such conduct could also have some ramifications for the public at large because staff or visitors may unwittingly carry the virus back into their communities.

https://www.sun-sentinel.com/coronavirus/fl-ne-coronavirus-numbers-spike-at-broward-ice-facility-20200520-v62esjzwxrhn7pfjekta3ldegi-story.html

Congress conferred broad discretionary authority to the Attorney General of the United States, to determine the places of detention for aliens detained pending removal or a decision on removal. 8 U.S.C. § 1232(g)(1). The same authority is conferred to ICE by extension. Calla-Collado v. Atty. General , 663 F.3d 680 (3rd Cir. 2011). However, ICE's authority is not absolute. District Courts are granted authority to review agency action and hold unlawful and set aide agency action found to be "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(a). Transferring detainees without first screening them for COVID-19 or providing any protective equipment is not only a violation on ICE's authority, it is a violation of Petitioners’ constitutional rights.

Further, the CDC's Guidelines state that the practice of cohorting should be utilized "only if there are no available options." (CDC's Guideline at 15.) Both the CDC's Guidelines and ICE's PRR state, "[o]nly individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts." (Id. at 16; PRR at 14.) Despite the fact that its own Guidelines call for detention facilities to avoid group cohorting, ICE flagrantly flouts its own rules on the subject and groups asymptomatic detainees together. ICE admits that it is currently cohorting 320 detainees at Glades—the entire detainee population—"as a precautionary measure, per the established protocol." On June 3, 2020, Mr. Borges testified that upon transferring back to BTC, he was quarantined for 14 days. During his quarantine he was taken to recreation at the same time as individuals known to be sick with COVID-19. Such practices substantially increase a detainee's exposure to COVID-19. And ICE's failure to comply with its own Guidelines, which explicitly acknowledges the risks involved in cohorting in the manner described herein is further evidence of deliberate indifference.

It is unclear to the Court how ICE manages to determine which detainees are asymptomatic considering that COVID-19 tests are limited and ICE has stated that it only tests detainees for COVID-19 if they display symptoms. (ECF No. 63 at 37.)

ICE's submissions to the Court establish that ICE considers a sizeable portion of its population to be mandatory detainees. However, 25.9% of the detainee's ICE classifies as mandatory detainees have no conviction or pending charges. (ECF No. 142 at p.60.) Notably, ICE does not claim mandatory detention for 23.3% of the populations across all three detention centers. (Id. at p.58.) But ICE has not released such individuals and has not provided any explanation as to why. Moreover, ICE's conduct flies in the face of directives from Attorney Gen. William Barr to the Federal Bureau of Prisons urging the prioritization of home confinement, noting "[w]e have to move with dispatch ... to move vulnerable inmates out of these institutions." Under such directives, ICE would be expected to make meaningful utilize its "Alternatives to Detention Program" by determining who among the 23.3% can be released to alternative confinement. Petitioners have satisfied the subjective component of the deliberate indifference test.

April 3, 2020 Memorandum of Hon. W. Barr to the Director of Bureau of Prisons, at 1.

Although Mr. Barr's Memorandums are directed to the Federal Bureau of Prisons, ICE's guidelines contain specific standards that mirror Mr. Barr's directives with respect to which detainees should be immediately released.

Pursuant to the PRR, ICE is tasked with maintaining social distancing among detainees, (PRR at 14), providing each detainee with hygiene products, (PRR at 8), and providing each detainee with masks, (PRR at 9). Credible testimony and sworn declarations filed in this matter after the issuances of the TRO suggest that ICE has only partially complied with its own directives or CDC Guidelines despites its submissions to the Court and paint a grim picture of an agency steeped in deliberate indifference. "During a pandemic, such as this, it is likely punitive for a civil detention administrator to fail to mandate compliance with widely accepted hygiene, protective equipment, and distancing measures until the peak of the pandemic." Fraihat v. U.S. Immigration & Customs Enf't , No. EDCV 19-1546 JGB, 445 F.Supp.3d 709, 746 (C.D. Cal. Apr. 20, 2020), ECF No. 132, at 34.

The Court recognizes that the PRR does not explicitly mandate that ICE provide detainees with masks. However, the Court interprets the PRR's directive that "cloth face coverings should be worn by detainees and staff (when PPE supply is limited) to help slow the spread of COVID-19," (PRR at 9), implies such mandate because detainees are not in a position to freely procure masks for themselves given their detention.

Petitioners are likely to succeed on their Fifth Amendment and Eighth Amendment claims.

ii. Likelihood of Irreparable Harm

The Court now turns to whether the Petitioners have established irreparable harm. A plaintiff must demonstrate she is likely to suffer irreparable harm in the absence of a preliminary injunction. Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The showing of irreparable harm is "[p]erhaps the single most important prerequisite for the issuance of a preliminary injunction ... that if ... not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered." Great Am. Ins. Co. v. Fountain Eng'g, Inc. , No. 15-CIV-10068-JLK, 2015 WL 6395283, at *3 (S.D. Fla. Oct. 22, 2015). In addition, the asserted irreparable harm must be "neither remote nor speculative, but actual and imminent." Siegel v. LePore , 234 F.3d 1163, 1176 (11th Cir. 2000).

To demonstrate irreparable harm, a movant must show "that the injury cannot be undone through monetary remedies." Winmark Corp. v. Brenoby Sports, Inc. , 32 F.Supp.3d 1206, 1223 (S.D. Fla. 2014). "It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’ " Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).

Petitioners establish irreparable harm by alleging a deprivation of constitutional rights. The "alleged violation of a constitutional right ... triggers a finding of irreparable harm," Jolly v. Coughlin , 76 F.3d 468, 482 (2d Cir. 1996). Here, Petitioners allege that their substantive and procedural due process rights have been violated. Accordingly, "no further showing of irreparable injury is necessary." Mitchell v. Cuomo , 748 F.2d 804, 806 (2d Cir. 1984) ("When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.").

Petitioners have established they will suffer the irreparable harm of increased likelihood of severe illness and death if a preliminary injunction is not entered. The Constitution protects those in detention against "a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year." Helling v. McKinney , 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) ("It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them."); see also W. Alabama Women's Ctr. v. Miller , 217 F. Supp. 3d 1313, 1334 (M.D. Ala. 2016) (recognizing that increased risk of medical complications constitutes irreparable harm.); Unknown Parties v. Johnson , 2016 WL 8188563, at *15 (D. Ariz. No. 18, 2016), aff'd sub nom Doe v. Kelly , 878 F.3d 710 (9th Cir. 2017) (finding evidence of "medical risks associated with ... being exposed to communicable diseases" adequate to establish irreparable harm).

Even in the early days of the pandemic, and with few exceptions, courts did not hesitate to find irreparable harm as a result of potential COVID-19 exposure in prison and detention, including in facilities where there had not been a confirmed case. At this stage of the pandemic, the threat is even clearer. As previously noted, the number of COVID-19 cases within each detention center at issue has risen, especially with the aggressive utilization of transfers—evidence that there truly is a heightened risk of contracting the disease within the detention centers. ICE does not argue that COVID-19 poses serious risk to detainees. Rather, ICE asserts that the Court should respect its unfettered authority to manage and maintain the detention centers. The Court reminds ICE that it has not made any efforts to usurp its role in the administration of detention centers. Rather, the Court has ordered that ICE follow its own guidelines in its management of the pandemic within detention centers. ICE reports that it has complied with the TRO in this regard. Still, there are credible reports from the Petitioners stating otherwise. (ECF No. 106-2.)

See, e.g. Basank v. Decker , 449 F. Supp. 3d 205, No. 20-cv-2518 (S.D.N.Y. Mar. 26, 2020) (granting TRO and releasing alien detainee § 2241 petitioners on their own recognizance who suffered from serious chronic medical conditions and were detained in connection with their removal proceedings in county jails where cases of COVID-19 had been identified); Coronel v. Decker , 449 F. Supp. 3d 274, No. 20-cv-2472 (S.D.N.Y. Mar. 27, 2020) (granting TRO and releasing alien detainee § 2241 petitioners who demonstrated a likelihood of success on claim government's actions constituted deliberate indifference to their medical needs which predisposed them to higher risk of COVID-19); Kaur v. United States Dep't of Homeland Sec. , No. 2:20-cv-03172-ODW, 2020 WL 1939386, 2020 U.S. Dist. LEXIS 71228 (C.D. Cal. Apr. 22, 2020) (granting TRO and releasing alien detainee § 2241 petitioners who demonstrated a likelihood of success on their due process claim); Durel B. v. Decker , No. 20-cv-3430, 455 F.Supp.3d 99, 2020 U.S. Dist. LEXIS 69220 (D.N.J. Apr. 21, 2020) (granting TRO and releasing 2241 immigration detainee petitioner); Leandro R. P. v. Decker , 455 F.Supp.3d 85, 2020 U.S. Dist. LEXIS 67607 (D.N.J. Apr. 17, 2020) (same); Jason Anthony W. v. Anderson , 2020 WL 2121118, 2020 U.S. Dist. LEXIS 69562 (D.N.J. Apr. 17, 2020) (same).

It is true that ICE is granted broad authority to act, however, ICE may not use its powers to act in an arbitrary and capricious manner.

iii. Balance of the Equities and Public Interest

Where the government is the opposing party, balancing of the harm and the public interest merge. See Nken v. Holder , 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). Thus, the Court asks whether any significant "public consequences" would result from issuing the preliminary injunction. Winter , 555 U.S. at 24, 129 S.Ct. 365.

The balance of the equities weighs in favor of granting an injunction. The Petitioners face irreparable harm to their constitutional rights and health. Indeed, there is no harm to the Government from engaging in unlawful practices. Fraihat, 445 F.Supp.3d at 749 (C.D. Cal. Apr. 20, 2020) ("The balance of equities sharply incline in Plaintiffs’ favor. ‘It is always in the public interest to prevent the violation of a party's constitutional rights.’ ") (citation omitted); Hernandez Roman v. Wolf , 2020 WL 1952656, at *12 (C.D. Cal. Apr. 23, 2020) ("The balance of equities, here, tip sharply in favor of the class members; the class members face irreparable harm to their constitutional rights and health. The Government is not harmed when a court prevents the Government from engaging in unlawful practices.").

C. Motion to Compel

Petitioners maintain ICE is merely "shuffling people around the country to make the population statistics at Krome, Glades, and BTC look better on paper." Rather than releasing detainees under its Alternatives to Detention Program. (ECF No. 106 at 2.) Petitioners assert that ICE conducts the transfers in highly unsanitary conditions and that detainees are then deposited into conditions that are at least as bad or worse than the conditions this Court outlined on April 30. (Id. ) Petitioners allege that ICE's conduct is an effort to destroy this Court's jurisdiction over the detainees they have transferred. (Id. at 3.)

Conversely, ICE takes the position that it has complied with this Court's TRO by (1) providing adequate soap, water, and masks to all detainees, and (2) meeting all the reporting requirements pursuant to the Court's Order. (ECF No. 116 at 2-3.)

ICE further maintains that in an effort comply with the Court's TRO, ICE reduced its population size at the three detention centers by properly exercising its discretion in transferring detainees to other locations pursuant to 8 U.S.C. § 1252. (Id. at 3-5.) ICE cites to Calla-Collado v. Atty. General , 663 F.3d 680 (3rd Cir. 2011), stating, "the Third Circuit observed that as a part of DHS, ICE ‘necessarily has the authority to determine the location of detention of an alien in deportation proceedings ... and therefore, to transfer aliens from one detention center to another.’ " (Id. at 4.) ICE alleges that it not only evaluates each detainee before transferring them, it has also evaluated every detainee at each detention facility. (Id. at 5-6) ICE also states that it uses a checklist prior to any transfer "ICE reviews the detainee's medical history and obtains a medical clearance." (Id. at 7.) ICE admits that detainees transferred from Krome to BTC tested positive for COVID-19. (Id. ) However, ICE does not believe any of its practices led to the increase in cases because ICE isolates new transfers for a 14-day period and because detainees are given masks during the transportation process. (Id. ) Further, while ICE stands by its reporting that it evaluated each detainee's eligibility for release, ICE argues it is not obligated to create a detailed analysis to support its decision not to release a particular detainee, nor is it required to provide a detailed explanation as to why a particular detainee is transferred. (Id. at 10-11.) ICE notes that it has grievance procedures in place that detainees may utilize and that the Court should defer to ICE's judgment in its efforts to manage its facilities during the pandemic.

ICE raises this argument for the first time in its Response to the Motion to Compel. (ECF No. 116.)

ICE emphasizes that this Court lacks jurisdiction to review conditions of confinement at the locations to which detainees have been transferred. The Court disagrees. The Court maintains jurisdiction over all detainees in this action, even those who have been transferred outside of the state of Florida. Ahrens v. Clark , 335 U.S. 188, 193, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948) (stating, "jurisdiction of the District Court [is] not defeated [by transferring a habeas corpus petitioner to a different district and court], no matter how proper the motive behind the removal ... in that situation the court can act as long as it can reach a person who has custody of the petitioner."); see also Ex parte Mitsuye Endo , 323 U.S. 283, 306, 65 S.Ct. 208, 89 L.Ed. 243 (1944) ; Spears v. Thigpen , 846 F.2d 1327, 1328 (11th Cir. 1988) (finding that claims specific to facility were mooted by transfer but challenge to systemic use of segregation remained live where plaintiff remained in segregation after transfer).

In sum, in this moment of worldwide peril from a highly contagious pathogen, the Court is not satisfied that ICE's commitment to detention has meaningfully shifted since the start of the pandemic. Even with the TRO in place, Detainees report that (1) social distancing is still impossible, (2) education on the use and importance of masks is inconsistent, (3) transfers are conducted haphazardly, and (4) cohorting is conducted in a manner that substantially increases the risk of spread of the contagion.

The Court is not persuaded by ICE's argument that each detainee must individually file grievance reports regarding their conditions of confinement. (ECF No. 116 at 8.) The CDC estimates approximately 16 days between the onset of symptoms and death with an incubation period between 2 and 14 days. Thus, it is unreasonable to expect detainees to first engage ICE's protracted grievance mechanisms. Accordingly, the Motion to Compel is GRANTED .

Stephen A. Lauer, MS, PhD, The Incubation Period of Coronavirus Disease 2019 (COVID-19) From Publicly Reported Confirmed Cases: Estimation and Application, Mar. 10, 2020, https://annals.org/aim/fullarticle/2762808/incubation-period-coronavirusdisease-2019-covid-19-from-publicly-reported.

The Court understands that the TRO expires on June 5, 2020. However, because the TRO has been converted to a Preliminary Injunction, ICE is expected to also comply with the Preliminary Injunction.

IV. CONCLUSION

It is hereby ORDERED and ADJUDGED as follows:

1. The Amended R&R on Petitioners’ Motion for Class Certification, ECF No. 123, is AFFIRMED and ADOPTED as the Order of this Court. It is hereby ORDERED and ADJUDGED that the Court now certifies the following class: All current civil immigration detainees who are now held by ICE at Krome, BTC, and Glades when this action was filed, since this action was filed, or in the future.

2. Petitioners’ Emergency Motion for Temporary Restraining Order and Motion for Preliminary Injunction for Proposed Class and Incorporated, ECF No. 4, is GRANTED as a preliminary injunction as follows:

a. ICE shall immediately comply with the CDC and ICE guidelines by providing Petitioners and the class members with unrestricted access to hand soap, hand sanitizer, and disposable hand towels to facilitate handwashing.

b. Provide cleaning supplies for each housing area and CDC-recommended disinfectants in sufficient quantities to facilitate frequent cleaning, including in quantities sufficient for each inmate to clean and disinfect the floor and all surfaces of his own housing cubicle, and provide new gloves and masks for each inmate during each time they are cleaning or performing janitorial services.

c. Provide all inmates and staff members with masks and educate

them on the importance and proper use of masks.

d. Increase regular cleaning and disinfecting of all common areas and surfaces, including common-use items such as television controls, books, and gym and sports equipment.

e. Limit transportation of detainees to only instances regarding immediately necessary medical appointments and release from custody.

f. For transportation necessary for prisoners to receive medical treatment or be released, CDC-recommended social distancing requirements should be strictly enforced in buses, vans, and planes.

g. Post signage and information in common areas that provides: (i) general updates and information about the COVID-19 pandemic; (ii) information on how inmates can protect themselves from contracting COVID-19; and (iii) instructions on how to properly wash hands. Among other locations, all signage must be posted in every housing area and above every sink.

h. Educate inmates on the COVID-19 pandemic by providing information about the COVID-19 pandemic, COVID-19 symptoms, COVID-19 transmission, and how to protect oneself from COVID-19. A staff person at each detention center must give an oral presentation or show an educational video with the above-listed information to all detainees and give all detainees an opportunity to ask questions.

i. ICE shall perform an internal review pursuant to ICE's PRR and file with the Court weekly reports (every Friday by 4:00 P.M.) on the following:

i. The number of detainees who have been released;

ii. Which facility they were released from; and

iii. The nature of the detainee released (e.g., in a high-risk category because of age or a specific, documented medical condition, etc.).

j. Within ten (10) days of this Order, ICE shall submit weekly (every Monday by 4:00 P.M.) reports on the following:

i. How many detainees it is housing on the date of reporting;

ii. At which of the three centers the detainees are being housed;

iii. Which of the detainees are considered "mandatory detainees"; and

iv. Which of the detainees have no prior criminal convictions and no pending criminal charges.

3. The Preliminary Injunction is in effect until a full trial in the matter and/or further order of the Court.

4. Petitioners’ Motion to Compel Compliance with the Court's April 30, 2020 Temporary Restraining Order, ECF 106, is GRANTED as follows:

a. ICE is permitted to transfer detainees but only after performing a verbal screening and a temperature check as outlined in the CDC Guidelines before the individual leaves the facility.

b. Within ten (10) days of this Order, ICE shall submit weekly Court documentation of its evaluations for release before any transfer is executed. The documentation must include an evaluation of each prospective transfer candidate for COVID-19.

c. ICE must provide a new mask to each transferee before the transfer process begins.

5. The Court shall retain jurisdiction over all class members who are transferred to other facilities regardless of where those facilities are located.

6. ICE shall not engage in the practice of cohorting unless ICE confirms through testing or other means that a prospective cohort candidate is a confirmed COVID-19 case.

DONE and ORDERED in chambers, at Miami, Florida, this 5^th day of June 2020.

Attachment

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

PATRICK GAYLE, et al., Plaintiffs,

MICHAEL W. MEADE, et al., Defendants.

CASE NO. 20-21553-COOKE/GOODMAN

AMENDED REPORT AND RECOMMENDATIONS ON CLASS CERTIFICATION MOTION

The Amendment provides greater detail and case law citations concerning the issue of whether (and, if so, how) the transfer of detainees affects jurisdiction, beginning on page 51. In addition, it provides an updated procedural history on page 10 and explains, in footnote 25, the deadline for filing Objections and Responses. Other than these revisions, the Amended Report is substantively identical to the first version.

I. Introduction and Summary of Recommendations

Petitioners/Plaintiffs are 58 persons who Immigration and Customs Enforcement ("ICE") are detaining at three South Florida detention centers. They have filed a lawsuit against ICE, challenging the conditions at the three centers as violating guidelines promulgated by the Centers for Disease Control and Prevention ("CDC"). They contend that their health and lives are in jeopardy at the centers because the novel Coronavirus ("COVID-19") unreasonably exposes them all to the potentially-deadly virus.

Plaintiffs have filed an Expedited Motion for Class Certification. [ECF No. 81]. They want the Court to certify as a class all individuals currently detained at the three centers when the lawsuit was filed (on April 13, 2020, [ECF No. 1]), since the action was filed, and in the future. They have not identified any proposed sub-classes. Based on numbers ICE provided during a May 14, 2020 hearing on this class certification motion [ECF No. 98], there were 1,124 detainees as of May 13, 2020.

During the hearing and in their written submissions, Plaintiffs advocated for the immediate release of all the detainees. But during the hearing, they acknowledged that any release procedure would inevitably involve a prioritization of which persons would be released first. Similarly, in a recently-filed "Emergency Motion to Compel Compliance With the Court's April 30, 2020 Temporary Restraining Order" [ECF No. 106], Plaintiffs stated that decisions about whether to transfer a detainee involve "individualized determinations of whether to release people." Id. at p. 3. And they agreed during the hearing that factors such as health risks, danger to the community, and risk of flight, should be used in the release decisions.

Plaintiffs’ Emergency Motion did not contain or attach a "certification of emergency," as required by Southern District of Florida Local Rule 7.1(d)(1). But Plaintiffs’ earlier-filed Emergency Motion for Temporary Restraining Order and Preliminary Injunction [ECF No. 4] did contain the required certification. Despite this rule violation, United States District Judge Marcia G. Cooke promptly issued a briefing schedule order [ECF No. 107] and required the parties to be prepared to discuss the emergency motion at an already-scheduled May 27, 2020 hearing on the preliminary injunction motion.

Evaluating these types of factors necessarily involves both an individualized determination of a detainee's suitability for release (and/or transfer) and a detainee-by-detainee assessment of what conditions, if any, should be imposed with a release decision.

For example, ICE would evaluate for possible release a wheelchair-bound diabetic detainee with high blood pressure, liver disease, no criminal convictions, no pending criminal charges, and relatives with an unoccupied bedroom in their home in rural Florida much differently than a healthy, 22-year-old soccer-playing detainee with drug trafficking and aggravated battery convictions, pending criminal charges for armed robbery and no family members living in the United States.

Although Michael W. Meade (the Miami Field Office Director for ICE) and Attorney General William P. Barr are technically the Respondents, Petitioners’ arguments focus on what ICE has (and has not) done about the COVID-19 risks at the three immigration detention centers. Therefore, this Report will often refer to Respondents simply as ICE.

Given the inevitable detainee-specific factors which must be considered in any release decision, Petitioners’ habeas corpus claim for immediate release is inappropriate for class certification.

The habeas corpus claim for immediate release of all detainees does not meet the commonality requirement of Federal Rule of Civil Procedure 23(a)(2). In addition, it does not meet Rule 23(b)(2) ’s requirement that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief ... is appropriate respecting the class as a whole." That rule does not warrant class treatment here because the requested injunction would generate highly individualized determinations, not release assessments about the entire class as a whole.

So, the Undersigned respectfully recommends that United States District Judge Marcia G. Cooke, who referred [ECF No. 82] the class action motion to me, deny the class certification motion concerning the habeas corpus demand for release.

On the other hand , the remaining claims and requests for relief (other than a request to prevent ICE from transferring detainees to other facilities and the request to include future detainees) are appropriate for class action treatment. Specifically, the claims for injunctive relief (to require appropriate precautionary health measures) and for declaratory relief (i.e., finding that the continued detention of all class members creates an undue increased risk of severe illness or death, thus violating the U.S. Constitution's Due Process Clause) justify class treatment under Federal Rule of Civil Procedure 23(a) and (b)(2).

The affidavits/declarations Plaintiffs submitted with their Emergency Motion for Temporary Restraining Order and Preliminary Injunction [ECF Nos. 4; 7; 8], their Notice Regarding New Named Petitioners-Plaintiffs [ECF No. 61-1], and in support of their class certification motion [ECF No. 94-1] portray a stressful scenario where the detainees are legitimately concerned over the COVID-19 risk in facilities which (as currently configured) do not permit adequate social distancing, and which purportedly do not provide sufficient cleaning and sanitizing supplies. In addition, the picture painted in the more-recent emergency motion to compel compliance is one where Plaintiffs allege (with supporting declarations) that "ICE has not fully complied" and "instead continues to fail to protect the safety and well-being" of the detainees. [ECF No. 106, p. 2].

Thus, because all detainees in all three facilities confront, in general, the same conditions vis-à-vis COVID-19, a class action should be approved.

Therefore, the Undersigned respectfully recommends that Judge Cooke grant the motion, in part, and certify a class of all current detainees at the three South Florida facilities for the conditions-of-confinement claims (as opposed to the claim for release).

However, the mere fact that a class might be certified (or is in fact certified) does not necessarily mean that the class will ultimately prevail. If a class for the conditions-of-confinement claims were to be certified, then the class claims would rise or fall together on the merits. Based on a recent decision from the Eleventh Circuit Court of Appeals and other recent appellate decisions, the chances that the 58 named Plaintiffs or the class will succeed in obtaining a preliminary injunction or declaratory relief in their favor have arguably decreased since the Court initially entered a Temporary Restraining Order last month. This potential significant change in the Plaintiffs’ ability to ultimately prevail on the merits does not mean that a class of some type should not be certified. Instead, it simply means that the certified class might not succeed on the merits.

By pointing out this procedural reality, the Undersigned is not predicting, suggesting, or implying in any way that Judge Cooke will not issue a preliminary injunction or that our Appellate Court would reverse one if entered. Rather, I am simply noting that appellate courts appear to not treat the COVID-19 crisis as affecting prisoner-filed or detainee-filed lawsuits and the requirement that those plaintiffs prove deliberate ignorance (as opposed to mere negligence) by government officials or their agents in order to succeed.

II. Factual Background

Petitioners/Plaintiffs are 58 immigration detainees housed in three federal immigration detention centers in Florida: the Krome Detention Center in Miami (a/k/a Krome Service Processing Center), the Broward Transitional Center in Pompano Beach, and the Glades County Detention Center in Moore Haven. There were 34 Plaintiffs who filed the original lawsuit, but the Undersigned granted [ECF No 65] a motion [ECF No. 60] to add named Petitioners/Plaintiffs.

At bottom, Petitioners claim that they are at imminent risk of contracting COVID-19 because their detention renders them unable to follow the Center for Disease Control and Prevention's ("CDC") guidelines. They allege that there is "currently no way" for the three centers to comply with the CDC's guidelines on social distancing and quarantining. [ECF No. 1, p. 9].

They say that (1) each facility "holds individuals in close proximity"; (2) people are less than six feet away from each other when they sleep, eat, and use common areas; (3) "it is impossible for Petitioners to protect themselves from infection through social distancing and vigilant hygiene – the only known mitigation measures"; (4) groups of individuals are "herded together in ‘cohort quarantine’ because they have been exposed" to others who might have COVID-19 symptoms; and (5) "cohort quarantines drastically increase the possibility of transmission, infection, and facility-wide outbreak by grouping together people who have already been exposed to the virus." [ECF No. 1, pp. 9-10].

The Undersigned assumes that all parties and their counsel are familiar with COVID-19 and the global health crisis it has generated. Consequently, the Undersigned does not deem it necessary to discuss here in detail the background of the virus and the CDC's recommendation that everyone practice social distancing, which involves the maintenance of not less than six feet between people in order to limit the virus’ spread. For present purposes, however, the Undersigned will simply provide a recent statistic: As of May 20, 2020, the CDC website reported 1,551,095 confirmed COVID-19 cases and 93,061 COVID-19 related deaths in the United States; the World Health Organization reported 4,789,205 cases and 318,789 deaths globally.

According to the CDC, the following persons have a heightened vulnerability to severe illness or death if they contract the coronavirus: those who are 65 years of age or older, people who live in a nursing home or long-term care facility, persons who are immunocompromised, and those with other pre-existing health conditions, such as serious heart conditions, diabetes, chronic lung disease, chronic kidney disease, liver disease, asthma, hemoglobin disorders, and severe obesity.

The Court's Temporary Restraining Order added pregnant detainees to the Pandemic Response Requirements’ list of higher-risk detainees. [ECF No. 76, p. 10, n. 13].

The CDC's Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities summarizes some of the harsh realities of the increased COVID-19 risks at detention centers like Krome, Broward and Glades:

• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.

• In most cases, incarcerated/detained persons are not permitted to leave the facility.

• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.

• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.

• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.

• Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives

such as working from home or reduced/alternate schedules are limited for many staff roles.

• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.

• Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.

• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.

• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.

• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.

III. Procedural Background

Following a Report and Recommendations [ECF No. 63], Objections (by both sides) [ECF Nos. 70-71], Responses (by both sides) to the Objections [ECF Nos. 72-73], two Petitioners-filed Notices of Supplemental Authority [ECF Nos. 74-75], Judge Cooke issued a 14-day Temporary Restraining Order [ECF No. 76], which she later extended for another 14 days on May 15, 2020 [ECF No. 101]. The Order extending the TRO also scheduled a hearing on the Emergency Motion for Preliminary Injunction for May 27, 2020. Id.

The Court held that hearing (which lasted an hour and a half) on May 27, 2020. [ECF No. 120]. The next day, ICE consented [ECF No. 119] to an extension of the TRO to June 5, 2020, and Judge Cooke then issued an Order extending the TRO for seven days. [ECF No. 121].

Noting that the Petitioners are merely civil detainees, not convicted criminal prisoners (serving a prison sentence at the facilities), the TRO held that ICE's failures to protect the safety and well-being of Petitioners "amount to cruel and unusual punishment because they are exemplary of deliberate indifference." [ECF No. 76, p. 6]. The Court also noted that ICE had made a conscious effort to address detention conditions at one center by releasing all detainees over age 60 and decreasing the overall detainee population by 35%. Id. Therefore, the TRO explained, "to the extent that ICE fails to commit to addressing the conditions complained of, ICE has demonstrated deliberate indifference." Id.

Although the Petitioners are civil detainees who are not serving a federal prison sentence, that does not mean that they all lack criminal records. In a post-TRO Report, for example, ICE explained that 35 of the 58 Petitioners are subject to mandatory detention and that 11 have criminal convictions "or pending criminal charges which [in ICE's stated opinion] make them a threat to public safety." [ECF No. 89-1]. And in a later Report filed on May 11, 2020, ICE advised [ECF No. 93-1] that 241 of the 419 Krome detainees have criminal convictions, 253 of the 348 Glades detainees have criminal convictions and 87 of the 419 Broward detainees have criminal convictions. In addition, 153 of the 443 Krome detainees are facing pending criminal charges, 96 of the 419 Broward detainees are facing pending criminal charges, and 95 of the 348 Glades detainees are facing pending criminal charges.

Although the Court found that injunctive relief is appropriate because of the Fifth and Eighth Amendment violations, it also noted that "the record is not clear as to whether each individual Petitioner is eligible for release under ICE's PRR." Id. at p. 10 (emphasis added). For example, Judge Cooke noted, "it is unclear who among the Petitioners would be considered "mandatory detainees." Id. (emphasis added).

PRR refers to ICE's COVID-19 April 10, 2020 Pandemic Response Requirements.

The Court granted in part and denied in part Petitioners’ Emergency Motion for a Temporary Restraining Order and imposed several requirements on ICE. Some requirements concerned specific steps which ICE must take to accomplish the goal of reducing the population to 75% of capacity at each of the three centers, some imposed reporting requirements, and some required specific health-related protocols.

Although both sides filed Objections to the Undersigned's Report and Recommendations, neither side appealed the TRO, which largely adopted the specific measures suggested in the R & R.

The TRO did not adopt the Report and Recommendations’ suggestion that the Court appoint an independent expert to evaluate the three facilities.

28 U.S.C. § 1292(a)(1) gives federal appellate courts jurisdiction over interlocutory orders of district courts "granting, continuing, modifying, refusing or dissolving injunctions , or refusing to dissolve or modify injunctions , except where a direct review may be had in the Supreme Court." (emphasis added). Although a TRO provides a type of injunctive relief, it is not a preliminary injunction. This distinction is critical, as "preliminary injunctions are appealable but temporary restraining orders are not." Mitsubishi Intern. Corp. v. Cardinal Textile Sales, Inc. , 14 F.3d 1507, 1515 (11th Cir. 1994).

Where a temporary restraining order has the effect of a preliminary injunction, however, then the appellate court has jurisdiction to review the order and is not bound by the district court's designation of the order. Mitsubishi Intern. Corp. , 14 F. 3d at 1515, n.14.

The TRO did not order ICE to release any specific detainee, nor did it require ICE to release any specific categories of detainee. Similarly, it did not specifically instruct ICE as to how to prioritize any release decisions. The TRO did not mandate that ICE in fact reduce the census at each facility to 75% of capacity. Rather, it required ICE to (1) evaluate the named detainees and inform the Court who among them could be released; (2) consider health status, bond eligibility, immigration status, immigration court history and prior criminal history when making the evaluations; and (3) submit a report about how it intends to accelerate its review of detainee release protocols "with the goal of reducing the population to 75% of capacity at each of the three detention centers within two weeks" of the TRO. [ECF No. 76, p. 10 (emphasis added)]. The TRO did not direct ICE to consider one or more factors as more or less important than other factors, nor did it impose any specific barriers to ICE's ability to lower the detainee population through transfers. After Judge Cooke entered the TRO, she granted in part [ECF No. 78] a motion for clarification [ECF No. 77] to permit ICE to "transfer detainees from the three facilities at issue," but only after "first evaluating each detainee and making a determination" of the detainee's release eligibility under the PRR. [ECF No. 78, p. 1 (emphasis added)]. Neither the TRO nor this clarification Order required ICE to provide copies of completed forms used to evaluate detainees for possible release to the Court or to Plaintiffs’ counsel.

A. ICE's TRO-Required Reports

In its first post-TRO Report, filed on May 2, 2020, ICE provided information on a center-by-center basis. [ECF No. 79].

Concerning Krome, ICE advised that it issued every detainee a surgical mask on April 29, 2020 and agreed to exchange the masks every Wednesday. [ECF No. 79-1, p. 1]. It also said it would continue to provide, at no cost to the detainees, "adequate" amounts of soap, water and cleaning materials to the detainees. Id. It further advised that disinfecting wipes are provided to detainees for cleaning of mattresses and bunks (though it did not reveal how often). Id. at p. 2.

In addition, ICE advised that the dormitories are equipped with antibacterial soap dispensers, running water and paper towels. Id. Similarly, it advised that hand sanitizer dispensers have been installed in all housing units and that staffers visit each unit daily and replenish supplies daily. Id.

At Glades, ICE said in its first report, the staff issued every ICE detainee a surgical mask, and they also provided instructions in multiple languages. Id. The masks are to be replaced every Friday. Id. The report also explained that "adequate" amounts of soap, water and cleaning materials are provided to ICE detainees, at no cost to them. Id. In addition, all dormitories are equipped with antibacterial soap dispensers, running water and paper towels. Id. The report advised that dormitories are sanitized twice daily. Id. The report later explained that four ounces of antibacterial soap are provided for individual use and is "replenished as needed." Id.

At Broward, all detainees were issued masks on April 17, 2020 and are exchanged once per week. [ECF No. 79-2, p. 1]. The staff gives detainees two four-ounce bottles of soap, which is replenished as needed, at no cost to the detainee. Id. at p. 2. In addition, detainees are also issued a 7.5-ounce pump bottle of antibacterial soap for each room, which is refilled as needed seven days per week. Id. The report also advises that cleaning supplies are issued daily and that a facility sanitation team conducts a deep cleaning of each detainee bathroom twice per week. Id. The sanitation team uses two pump sprayers to spray the turf twice per day. Id. The cleaning crew, which includes detainee volunteers, uses masks and gloves while cleaning. Id.

ICE's second post-TRO report [ECF No. 80], filed on March 3, 2020, focused on release, and it outlined the decision-making process and the numbers of detainees released. Relevant portions of this report are provided here verbatim:

3. ICE's goal is to reduce the population to 75%, which has been met at Broward Transitional Center. ICE has and will continue to review cases and exercise its discretion to pursue alternatives to detention within the confines of the law.

4. Alternatives to detention can include a release on GPS ankle monitor, release on parole, release on an order of recognizance (OREC) with or without a bond pending removal proceedings, and release on an order of supervision (OSUP) with reporting requirements. Whether a detainee is eligible for release pursuant to any of the mechanisms above depends

upon his or her manner of entry, and the applicability of the mandatory detention statutes under the Immigration and Nationality Act (INA).

5. When evaluating custody, ICE considers immigration history, criminal record, potential threat to public safety, flight risk, and national security concerns, as well as current health status and COVID-19 vulnerability in accordance to the Centers for Disease Control (CDC) guidelines.

6. ICE is reducing its detainee population at Krome and Glades to reach the target capacity through a continuous review of all cases, where detainees have been identified by ICE Health Service Corps as having a medical condition that makes them "at risk" for COVID-19, according to the CDC guidelines and the factors enumerated in U.S. District Court for the Central District of California preliminary injunction order in Fraihat v. ICE , 445 F. Supp. 3d 709 ([C.D. Cal.] Apr. 20, 2020), to determine if their detention remains appropriate.

7. To that end, ICE also identifies within five days of coming to ICE custody all detainees with risk factors and considers them in making custody determinations.

8. ICE further intends to continue reducing its detained population at Krome and Glades by identifying eligible arriving alien cases for parole consideration.

9. Arriving aliens who establish a credible fear of persecution or torture are to be detained for further consideration of the application for asylum. INA § 235(b)(1)(B)(ii), 8 U.S.C. § 1225(b)(1)(B)(ii). Such aliens, however, may be paroled on a case-by-case basis for "urgent humanitarian reasons" or "significant public benefit," provided the aliens present neither a security risk nor a risk of absconding. 8 C.F.R. § 212.5(b).

10. ICE will continue to provide eligible detainees with a Parole Advisal and Scheduling Notification Form, which inform the detainee that he/she will be interviewed for potential parole and provides the detainee instructions on how to submit any supporting documentation.

11. ICE will continue to review all previously-granted bonds to determine whether reduction of the bond amount or release on an order of recognizance, with a GPS ankle monitor to mitigate risk of flight, is appropriate.

12. ICE intends to continue reduction of the population at Krome and Glades by accelerating the review and release on Orders of Supervision for all final order detainees, where ICE has determined that there is no significant likelihood of removal in the reasonably foreseeable future.

13. ICE detained population at Krome and Glades will be further reduced through release of detainees granted relief or bond by an Immigration Judge, or through the enforcement of removal orders where logistically feasible.

14. During February, March and April 2020, ICE officials at Krome and Glades released 289 individuals on an Order of Recognizance, Order of Supervision, Parole or Bond.

15. During February, March and April 2020, officials at BTC released 218 individuals on an Order of Recognizance, Order of Supervision, Parole or Bond.

[ECF No. 80-1, pp. 1-3].

ICE's third Report [ECF No. 89] addressed the population of the three centers (i.e., whether they were below capacity) and information about the release status of the 58 Petitioners, including information about the factors used to assess eligibility for release (e.g., whether a detainee is subject to mandatory detention, has criminal convictions or pending charges, or has health conditions which would increase their vulnerability to COVID-19). Relevant portions of this report are provided here verbatim:

3. As of May 7, 2020, Krome's population is presently at 71% capacity. The detainee population at Glades is presently at 74% capacity. BTC's detainee population is presently at 65% capacity.

4. ICE has reviewed each of the 58 petitioners’ detention pursuant to the district court's order. Of the 58 petitioners, six of the petitioners have been released from ICE custody, to include Tahimi Perez, Francisco Rivero Valeron, Eitan Yefet, Fernando Goncalves, Maxuel De Souza, and Maria Rodriguez Claras.

5. ICE determined that of the 52 remaining petitioners, 35 are subject to mandatory detention.

6. ICE found that of the 52 petitioners, 17 are not subject to mandatory detention.

7. ICE determined that 11 of the petitioners who are not subject to mandatory detention have criminal convictions or pending criminal charges which make them a threat to public safety.

8. An immigration judge denied a bond to one of the non-mandatory detention plaintiffs based upon flight risk. The plaintiff did not appeal the bond denial. The immigration judge ordered removal and the plaintiff did appeal the removal order. The appeal remains pending.

9. ICE released an additional two petitioners on alternatives to detention, Eliseo Zamora-Mendoza and Alejandro Mugaburu Tapia.

10. The remaining three petitioners who are not subject to mandatory detention, do not have a criminal history, and do not have any known chronic health conditions that would increase their vulnerability to COVID 19 per the Center for Disease Control (CDC) guidelines.

11. ICE found that of the 52 petitioners, one is over the age of 60. That petitioner has criminal convictions for carrying a concealed weapon, possession of narcotic equipment, possession of marijuana, larceny and arson and is subject to mandatory detention. He is scheduled for a hearing on his request for relief [ ] with an immigration judge on May 21, 2020.

12. ICE found that of the 52 petitioners, 25 had no known chronic health conditions that would increase their vulnerability to COVID 19 per the Center for Disease Control (CDC) guidelines.

13. ICE found that of the 52 petitioners, 27 did have known chronic health conditions that would increase their vulnerability to COVID 19 per the Center for Disease Control (CDC) guidelines.

14. ICE found that of those 27 petitioners that had a known chronic health condition, 22 are subject to mandatory detention under the Immigration and Nationality Act and are not statutorily eligible for release pursuant to an order of recognizance, parole, or other alternative to detention.

15. ICE found that of the 27 petitioners that had a known chronic health condition, 5 are eligible for some form of release under the Immigration and Nationality Act. After reviewing all factors to include health status, bond eligibility, immigration history, immigration status and criminal history, ICE has approved 2 petitioners for release.

16. However, ICE found that the remaining three petitioners have criminal convictions for [i]ntimidation, probation violation, fraud, illegal use of credit cards and traffic offenses.

17. Additionally, some of the three plaintiffs are also pending criminal charges for [p]roperty damage, possession of stolen

property, sale of stolen property, drug possession, larceny, weapons offense, firing a weapon, and aggravated assault with a weapon and failure to appear.

[ECF No. 89-1, pp. 1-3].

ICE's fourth report [ECF No. 93], filed on May 11, 2020, focuses on the criminal histories of all the current detainees, not merely the 58 named Petitioners. Relevant portions are provided here verbatim:

3. As of 6:00 a.m. on May 11, 2020, ICE detained 1210 detainees at Krome, BTC, and Glades.

4. ICE is housing 419 detainees at BTC; 443 detainees at Krome; and 348 at Glades.

5. Of the 1210 detainees, 787 detainees are considered to be subject to mandatory detention.

6. Of the 419 detainees housed at BTC, 87 have criminal convictions and 332 do not have criminal convictions. However, 96 of them are pending criminal charges.

7. Of the 443 detainees housed at Krome, 241 have criminal convictions and 202 do not have criminal convictions. However, 153 of them are pending criminal charges.

8. Of the 348 detainees housed at Glades, 253 have criminal convictions and 95 do not have criminal convictions. However, 95 of them are pending criminal charges.

[ECF No. 93-1, pp. 1-2].

ICE's fifth report, submitted May 14, 2020 [ECF No. 97], provides an update on the criminal histories and pending charges for the detainees. Relevant portions are listed here verbatim:

3. As of 6:00 a.m. on May 14, 2020, ICE detained 1194 detainees at Krome, BTC, and Glades.

4. ICE is housing 462 detainees at BTC; 403 detainees at Krome; and 329 at Glades.

5. Of the 1194 detainees, 860 detainees are considered to be subject to mandatory detention.

6. Of the 462 detainees housed at BTC, 108 have criminal convictions and 354 do not have criminal convictions. However, 94 of the 354 detainees with no criminal convictions are pending criminal charges.

7. Of the 403 detainees housed at Krome, 229 have criminal convictions and 174 do not have criminal convictions. However, 116 of the 174 detainees with no criminal convictions are pending criminal charges.

8. Of the 329 detainees housed at Glades, 246 have criminal convictions and 83 do not have criminal convictions. However, 83 of the detainees with no criminal convictions are pending criminal charges.

[ECF No. 97-1, pp. 1-2].

ICE's sixth report, filed on May 15, 2020 [ECF No. 100], revealed specifics about the methods used to release 170 detainees from the three centers between May 8 and May 15, 2020. Specifically, 111 of the 170 detainees who were removed or released from the three centers were transferred to other facilities. Relevant portions of this report are provided here verbatim:

3. Between May 8, 2020 and May 15, 2020 at 9:00 a.m., ICE released or removed a total of 170 detainees. Those detainees were released or removed from the following facilities: 119 detainees from Krome, 17 detainees from Glades and 34 detainees from BTC.

4. The nature of the 119 releases from Krome are as follows:

a. 9 detainees were released on bond.

b. 1 detainee was removed from the United States.

c. 1 detainee was released because an immigration judge granted relief from removal.

d. 1 detainee was released on an order of supervision based on a COVID-19 high risk category.

e. 2 detainees were released on an order of supervision subsequent to a procedural ERO custody review.

f. 3 detainees were turned over to local law enforcement on a warrant.

g. 2 detainees departed voluntarily.

h. 100 detainees were transferred out of Krome.

5. The nature of the 17 releases from Glades are as follows:

a. 3 detainees were released on bond.

b. 4 detainees were released because an immigration judge granted relief from removal.

c. 4 detainees were released on an order of supervision subsequent to a procedural ERO custody review.

d. 6 detainees were transferred out of Glades.

6. The nature of the 34 releases from BTC are as follows:

a. 1 detainee was released on bond.

b. 13 detainees were removed from the United States.

c. 1 detainee was released because an immigration judge granted relief from removal.

d. 1 detainee was released on Parole subsequent to a procedural ERO custody review.

e. 10 detainees were released on an order of supervision subsequent to a procedural ERO custody review.

f. 3 detainees were released on an order of supervision based on a COVID-19 high risk category.

g. 5 detainees were transferred out of BTC.

[ECF No. 100-1, pp. 1-2].

ICE's seventh report, filed on May 18, 2020 [ECF No. 104], provides an update on the number of detainees on a facility-by-facility basis and the categories in which they have been described. Relevant portions are provided here verbatim:

3. As of 6:00 a.m. on May 18, 2020, ICE detained 1191 detainees at Krome, BTC, and Glades.

4. ICE is housing 456 detainees at BTC; 397 detainees at Krome; and 338 at Glades.

5. Of the 1191 detainees, 846 detainees are considered to be subject to mandatory detention.

6. Of the 456 detainees housed at BTC, 112 have criminal convictions and 344 do not have criminal convictions. However, 93 of the 344 detainees with no criminal convictions are pending criminal charges.

7. Of the 397 detainees housed at Krome, 223 have criminal convictions and 174 do not have criminal convictions. However, 119 of the 174 detainees with no criminal convictions are pending criminal charges.

8. Of the 338 detainees housed at Glades, 248 have criminal convictions and 90 do not have criminal convictions. However, 62 of the 90 detainees with no criminal convictions are pending criminal charges.

The total census was slightly reduced, from 1,194, to 1,191, in a four-day period.

[ECF No. 104-1, pp. 1-2].

B. Petitioners’ New Declarations

Petitioners filed their expedited motion for class certification on May 5, 2020. [ECF No. 81]. Petitioners filed a reply in further support of their motion on May 12, 2020 [ECF No. 94] and attached new declarations which they say shows that ICE is "continuing to place these people in conditions that violate CDC Guidelines." [ECF No. 94, p. 7].

Some of these declarations, which were signed after the TRO was entered and after ICE issued its first report, contend that the conditions at the three centers continue to permit unacceptable conditions to exist, though Petitioners’ counsel acknowledge that "ICE may dispute these accounts." [ECF No. 94, p. 8].

If the declarations are factually accurate and complete, then there is a significant factual discrepancy between what ICE represents in its submissions (through declarations made under penalty of perjury) and what the Petitioner declarants describe. Other significant points are not necessarily factual disputes -- they merely document certain realities which ICE does not address in its reports and declarations (e.g., adequate social distancing at all times is impossible).

The following excerpts from the new Petitioner declarations illustrate factual discrepancies, as opposed to undisputed descriptions which simply reflect certain realities of the conditions at the three detention centers:

In a declaration signed on May 6, 2020, Reinier Guiber Avila says that "there is no hygiene here." [ECF No. 94-1, p. 6]. He says, "there are not enough cleaning supplies" and he and his fellow podmates are given only two rags to clean the entire pod. Id. He also claims that "we do not have disinfecting wipes to use regularly." Id. He states that he was given one wipe when he arrived at Krome (on April 17, 2020) but has not been provided any additional wipes since his first day (i.e., a period of 15 days). Id.

Miguel Angel Marroquin Perez is detained at Broward and signed a declaration on May 8, 2020. [ECF No. 94-1, pp. 15-17]. Although he says that masks are provided every three days, he says that mask use is not required, that the masks are usually thrown on the beds or on tabletops and "most people do not want to wear them because they are contaminated." Id. at p. 15. He also advises that hand sanitizer is "sometimes" available outside the cafeteria and that he has not seen any hand sanitizer next to the telephones. Id. at p. 16. He also says that he has not received any education about hygiene and preventing the spread of COVID-19. Id. at p. 17. Moreover, he says he has not seen any Spanish-language posters about COVID-19 at Broward. Id.

Iran Pichardo Perez-Borroto has been detained at Krome since April 16, 2020. [ECF No. 94-1, pp. 21-23]. He says he receives soap and shampoo "once or twice a week," that the amount of soap is insufficient and that he and his other podmates do not always receive additional soap or shampoo when they request it. Id. at p. 22. He further contends that disinfecting wipes are not provided and that detainees sometimes use toilet wiper to clean the tables. Id.

Deivys Perez Valladares has been at Krome since May 6, 2020 and was previously at Broward. [ECF No. 94-1, p. 26]. According to his declaration, Broward guards were not wearing masks or gloves when interacting with the detainees. Id. at p. 27. Staff at Krome did not provide information about COVID-19 when they arrived. Id. In addition, the Perez-Valladares declaration says that no masks or gloves were given to detainees when they arrived at Krome from Broward and that only guards are using masks at Krome. Id.

Danny Ruiz Garcia is detained at Broward, where he has been housed since March 26, 2020. [ECF No. 94-1, p. 31]. According to his declaration, there is no hand sanitizer near the telephones, the hand sanitizer in the cafeteria is often empty and guards are given hand sanitizer only during lunch. Id. Mr. Ruiz also says that a Broward staffer denied his request for additional shower gel on May 5, 2020. Id. He also says that he has not received any education about hygiene or how to prevent the spread of COVID-19 at Broward. Id.

IV. Applicable Legal Standards & Analysis

Petitioners’ class action certification motion is the precise legal issue currently before the Court.

Nevertheless, the Undersigned will first discuss Swain v. Junior , 958 F.3d 1081 (11th Cir. 2020) because it is a very recent and binding published Eleventh Circuit opinion concerning a challenge to conditions of confinement raised in the midst of the COVID-19 pandemic. Moreover, Swain is helpful to a discussion of whether the merits of the prisoners’ claims there, which are similar to the ones here, affect the analysis of Petitioners’ class action motion.

There have been several district court and appellate court opinions in the past three months concerning COVID-19 prompted lawsuits filed by prisoners and detainees in federal, state and local prisons, jail and detention facilities. Those opinions are all non-binding. Swain is the only binding appellate decision which the Undersigned knows of which addresses the conditions of confinement and a demand for release as a result of the COVID-19 pandemic.

A. Swain v. Junior

In a 2-1 published opinion with a written dissent, our Appellate Court in Swain granted a motion to stay the District Court's preliminary injunction pending an appeal by the Defendants (i.e., Miami-Dade County and the Director of its Corrections and Rehabilitations Department). The preliminary injunction, which was stayed, required the Defendants in that similar case to use myriad safety measures to prevent the spread of COVID-19 at the Metro West jail.

The Swain Court considered the Plaintiffs’ § 1983 claim that Defendants violated the Eighth and Fourteenth Amendments through their purportedly deliberate indifference to the COVID-19 risks affecting the jail detainees. The Court noted that an Eighth Amendment challenge has two components: an objective one and a subjective one.

To prevail on the objective component, a plaintiff must show "an objectively intolerable risk of harm." Swain , 958 F.3d at 1088.

To satisfy the subjective component, a plaintiff must show that the prison official "acted with deliberate indifference." Id. The Swain Court noted that the deliberate indifference element requires a prison official to have a subjective "state of mind more blameworthy than negligence." Id.

The Eleventh Circuit held that the District Court "incorrectly collapsed" the subjective and objective components. Id. Moreover, it held that the Defendants are likely to prevail on appeal. Id.

More specifically, the Eleventh Circuit held that the trial court "treated the increase in COVID-19 infections as proof that the Defendants deliberately disregarded an intolerable risk," an approach which "likely violated the admonition that resultant harm does not establish a liable state of mind." Id. It also held that the Defendants are likely to prevail for the additional reason that Plaintiffs "offered ‘little evidence’ to suggest that the Defendants were deliberately indifferent." Id. Instead, the Appellate Court held, the evidence supports the conclusion that the Defendants "are taking the risk of COVID-19 seriously." Id.

The Swain Court also held that the trial court "likely erred" by treating Metro West's inability to achieve meaningful social distancing as "evincing a reckless state of mind." Id.

Although the specific conditions at the three federal detention centers and the County's Metro West facility have not been established to be identical, some of the problematic conditions at the Metro West jail (e.g., the impossibility of achieving "social distancing") seem to be also present at Krome, Broward, and Glades. But Swain held that the provisions of the preliminary injunction (e.g., specifying specific measures which county jail officials must take, such as requiring that soap and mask be provided) are illustrations of a scenario where the District Court designated itself as a de facto "super-warden" and incorrectly required those officials to, in effect, obtain a "permission slip" from the Court before taking action at the jail. Id. at 1090.

Some of the measures in the preliminary injunction stayed in Swain are similar to, and at times identical to, the measures included in the temporary restraining order issued by the District Court in this case. Unlike the Defendants in Swain , however, the Defendants here (ICE, for all practical purposes) have not filed a notice of appeal of the TRO (because, presumably, the statute does not permit interlocutory appeal of a TRO, as opposed to a preliminary injunction). Instead, they have filed reports which provide information on what steps they have taken in response to the TRO.

Given the similarities between Swain and the instant case, there could theoretically be a question about Petitioners’ chances of succeeding on the merits of their efforts to convert the TRO in the instant case into a preliminary injunction. To be sure, each case turns on its facts. The Swain facts are not identical to the facts here, so the appellate court's ruling about the preliminary injunction in Swain and whether the evidence established deliberate indifference there does not necessarily mean it would reach a similar conclusion here about the deliberate indifference standard at the three immigration detention centers. In addition, the legal theories asserted by the parties in the two cases are not identical, either.

Swain was issued on May 5, 2020, which means that the Undersigned (who issued the Report and Recommendations on April 22, 2020) and Judge Cooke (who issued the TRO on April 30, 2020) did not have the benefit of Swain, which is now binding precedent, when we analyzed the issues.

Therefore, the mere fact that our Appellate Court stayed the preliminary injunction concerning Metro West does not mean that it would issue an identical ruling in this case, which, of course, has different facts. The health risks confronting the immigration detainees could be significantly greater than those affecting defendants housed at Metro West. Likewise, an evaluation of the mental states of ICE officials operating the three federal immigration facilities could show greater culpability than county officials operating Metro West. In other words, the Swain Plaintiffs may not have submitted sufficient evidence of deliberate indifference, while the Plaintiffs here may have provided more-substantial evidence of deliberate indifference. But it is not necessary to determine whether Petitioners will ultimately succeed in obtaining a preliminary injunction or declaratory relief here in order to decide the class certification issue. As the Advisory Committee Notes to the 2003 Amendment of Federal Rule of Civil Procedure 23(c)(1)(A) explains: "an evaluation of the probable outcome of the merits is not properly part of the certification decision." Cf. Amgen Inc. v. Conn. Ret. Plans & Tr. Funds , 568 U.S. 455, 459, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013) (emphasis added) (" Rule 23(b)(3) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits , in favor of the class.").

The purpose of a class-certification ruling "is not to adjudicate the case," but "to select the method best suited to adjudication of the controversy." Id. at 460, 133 S.Ct. 1184 (internal citation omitted). Adjudicating the merits to determine certification "put[s] the cart before the horse." Id. ; see generally Cooper v. Southern Co. , 205 F.R.D. 596, 608-90 (N.D. Ga. 2001) ("The Court's responsibility is to make sure that the common bond between the class representatives’ claims and those of the class is strong enough so that it is fair for the fortunes of the class members to rise or fall with the fortunes of the class representatives."); see also In re Chiquita Brands Int'l Inc. Alien Tort Statute and Shareholders Derivative Litigation , 331 F.R.D. 675, 682 (S.D. Fla. 2019) (finding that at the class certification motion stage, "the Court should not pass on the merits of the claims"); cf. Amgen , 568 U.S. at 465-66, 133 S.Ct. 1184 (" Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage" and merits questions "may be considered to the extent – but only to the extent – they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied").

The Swain Court pointed out that an expert report found that "Metro West appears to have implemented many measures to curb the spread of the virus." 958 F.3d at 1089. It also emphasized that the Defendants "adopted extensive safety measures such as increasing screening, providing protective equipment, adopting social distancing when possible, quarantining symptomatic inmates, and enhancing cleaning procedures." Id. at 1090. These circumstances, the appellate court pointed out, are inconsistent with a finding of deliberate indifference.
In its memorandum opposing the class action motion [ECF No. 92, pp. 13-14], ICE advised that it "began taking measures, prior to the filing of the lawsuit, to address the threat posed by COVID-19." Id. at p. 13. The measures included some of the ones mentioned in Swain. ICE contends that its conduct, as evidenced by the pre-lawsuit measures, "does not evince deliberate indifference to detainees’ serious medical needs." [sic]. Id. at pp. 13-14.
The appellate courts which have stayed COVID-19 preliminary injunctions against officials operating state and federal prison and detention facilities seem to have all relied on that view to stay the trial court's preliminary injunction. See, e.g., Marlowe , 810 Fed.Appx. at 304–05 (stating the question is whether the state prison officials are required "to do more than [they] have already done to mitigate the risk of harm" and noting that the evidence did not show deliberate indifference because the officials were taking "a plethora of measures" to "abate the risks posed by COVID-19").

So an order certifying a class does not by itself indicate whether the claims certified will succeed. However, the Undersigned deems it prudent to point out that other appellate courts have recently issued opinions staying preliminary injunctions on rationales similar to the one articulated in Swain . See generally Valentine v. Collier , 956 F.3d 797, 801, 803 (5th Cir. 2020) (staying preliminary injunction entered against the executive director of the Texas prison system and the warden of one of its prisons for the elderly and infirm, noting that the preliminary injunction created an "administrative nightmare," and explaining that "the incidence of diseases or infections, standing alone, do not imply unconstitutional confinement conditions, since any densely populated residence may be subject to outbreaks"); Marlowe v. LeBlanc , No. 20-30276, 810 Fed.Appx. 302, 304–08 (5th Cir. 2020) (staying district court's preliminary injunction entered against Louisiana's prison system officials in a lawsuit filed by a diabetic who is "particularly vulnerable to the virus's effects"; noting that the virus has spread within the prison but emphasizing that, given the many prevention measures taken by the prison, "an increase in infection rate alone is insufficient to prove deliberate indifference"; and holding that the harm to the state's interest in administering its prison system is "particularly acute" because the preliminary injunction "interferes with the rapidly-changing approach" that the state has "used to respond to the pandemic so far"); cf. Roman v. Wolf , No. 20-55436, 2020 WL 2188048, at *1 (9th Cir. May 5, 2020) (staying preliminary injunction except for paragraph requiring substantial compliance with CDC Guidelines at ICE immigration detention facility in Adelanto, California).

On the other hand, some trial-level district courts have issued orders granting injunctive relief and certifying classes or sub-classes in COVID-19 prisoner/detainee litigation. See, e.g., Fraihat v. U.S. Immigration & Customs Enforcement , No. EDCV-19-1546 JGB, 445 F.Supp.3d 709 (C.D. Cal. Apr. 20, 2020).

B. Federal Rule of Civil Procedure 23

It is well established that trial courts have "broad discretion" in determining whether to certify a class and to subsequently amend a class. See, e.g., Coon v. Georgia Pac. Corp. , 829 F.2d 1563, 1566 (11th Cir. 1987) ; Kilgo v. Bowman Transp., Inc. , 789 F.2d 859, 877 (11th Cir. 1986). As a result, the appellate court will review a District Court's decision about whether to certify a class for an abuse of discretion. See Babineau v. Fed. Express Corp. , 576 F.3d 1183, 1189 (11th Cir. 2009). The Eleventh Circuit will find an abuse of discretion in a class certification ruling only if the District Court applies the wrong legal standard, follows improper procedures in making its determination, bases its decision on clearly erroneous findings of fact, or applies the law in an unreasonable or incorrect manner. See Klay v. Humana, Inc. , 382 F.3d 1241, 1251 (11th Cir. 2004), abrogated in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008).

"The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ " Comcast Corp. v. Behrend , 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013) (quoting Califano v. Yamasaki , 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979) ). To fall within the exception, Plaintiffs "must affirmatively demonstrate [their] compliance" with Federal Rule of Civil Procedure 23. Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).

"A district court must conduct a rigorous analysis of the Rule 23 prerequisites before certifying a class." Vega v. T-Mobile USA, Inc. , 564 F.3d 1256, 1266 (11th Cir. 2009) (citation omitted). "A party seeking class certification must affirmatively demonstrate his compliance with [ Rule 23 ]—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Dukes, 564 U.S. at 350, 131 S.Ct. 2541. "In other words, ‘the party seeking class certification has a burden of proof , not a burden of pleading.’ " Reyes v. BCA Fin. Servs. , No. 16-cv-24077, 2018 WL 3145807, at *7 (S.D. Fla. June 26, 2018) (quoting Brown v. Electrolux Home Prods., Inc. , 817 F.3d 1225, 1234 (11th Cir. 2016) ).

Plaintiffs seek class certification pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2). Specifically, Plaintiffs seek certification of the following class:

All civil immigration detained individuals held by Respondents at the Krome Service Processing Center ("Krome"), the Broward Transitional Center ("BTC"), or at Glades County Detention Facility ("Glades") when this action was filed, since this action was filed, or in the future.

[ECF No. 81, p. 5].

According to Petitioners, ICE has not even attempted to show this Court that it is fully implementing CDC Guidelines. Instead, as phrased by Plaintiffs, the ICE-submitted declarations "illustrate a consistent pattern of unhygienically cramped conditions, inadequate personal protective equipment, and grossly inadequate practices by ICE, such as late screening and use of massive cohort quarantining." Id. at p. 2. Plaintiffs contend that putative class members are "uniformly not provided basic necessities to fight against COVID-19, such as space, face masks, soap, and hand sanitizer." Id. at p. 6. "Each class member is therefore not only subject to similar conditions, but similarly subject to the same devastating risk of contracting COVID-19." Id.

ICE disputes this description, as illustrated by the representations made in its post-TRO reports. The Undersigned acknowledges a significant factual dispute but will not resolve it here. If a class of some type is certified for claims concerning this alleged lack of hygiene, then all class members will have their claims succeed or fail based on an evidence-based determination of which set of facts is the correct one. Of course, this Court could always determine that the facts are not the ones portrayed by Plaintiffs or those described by ICE – and that the actual scenario is somewhere between the two competing versions.

Class certification is governed by Federal Rule of Civil Procedure 23. Class certification is proper where the party seeking certification demonstrates that (1) each of the prerequisites of Federal Rule of Civil Procedure 23(a) have been met; and (2) the proposed class satisfies at least one of the requirements listed in Rule 23(b). Dukes , 564 U.S. at 345, 131 S.Ct. 2541 (2011).

The Rule 23(a) requirements are as follows:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a).

i. Analysis of the Rule 23(a) Factors

The Supreme Court has held that "actual, not presumed, conformance with Rule 23(a) [is] indispensable." Gen. Tel. Co. of the Sw. v. Falcon , 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The party seeking class certification bears the burden of demonstrating it has satisfied all four Rule 23(a) prerequisites and that the class lawsuit falls within one of the three types of actions permitted under Rule 23(b). Amchem Prods. Inc. v. Windsor , 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). 1. Numerosity

The proposed class satisfies the requirement that the class be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). While there is no fixed rule, generally a class size less than twenty-one is typically considered inadequate, while a class size of more than forty is generally adequate. Cheney v. Cyberguard Corp. , 213 F.R.D. 484, 489-90 (S.D. Fla. 2003).

This requirement is easily met here because there are many hundreds of people (indeed, approximately 1,124) in civil immigration detention who are being held by the same Respondent across Krome, BTC, and Glades, and each of them is affected by the policies and practices challenged in this lawsuit. See, e.g., Rosas v. Baca , No. CV 12-00428 DDP (SHx), 2012 WL 2061694, at *2 (C.D. Cal. June 7, 2012) ("The Jails currently house thousands of inmates, and are certain to house many more in the future. The court therefore agrees with Plaintiffs’ undisputed assertion that the numerosity requirement has been satisfied.").

The size of the proposed Class seeking injunctive or declaratory relief make joinder impracticable. The proposed Class thus easily satisfies the numerosity requirement of Rule 23(a)(1).

2. Commonality

Determining whether Petitioners/Plaintiffs meet the commonality requirement depends on the nature of the claims. The claims seeking release on bond or on conditions require a much-different analysis than the claims concerning the conditions (e.g., more soap and disinfecting products, reconfiguring sleeping arrangements to more easily facilitate social distancing).

Commonality "requires at least one question common to all of the class members, the answer to which is "apt to drive the resolution of the litigation." Money v. Pritzker , Nos. 20-cv-2093, 20-cv-2094, 453 F.Supp.3d 1103, 1127 (N.D. Ill. Apr. 10, 2020) (internal citation omitted).

The Undersigned will first evaluate the conditions-related claims seeking a declaratory judgment and injunctive relief concerning improved hygiene and health measures. In other words, the non-release claims.

"Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury." Dukes , 564 U.S. at 350, 131 S.Ct. 2541. The common contention of injury "must be of such a nature that it is capable of class wide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id.

A critical question for the class is whether ICE has been deliberately indifferent to the risk that people detained at Krome, Broward, and Glades will contract COVID-19 due to the allegedly unhygienic conditions and an inability to protect themselves through social distancing. See Helling v. McKinney , 509 U.S. 25, 32, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (stating the Constitution confers upon the Government a duty to assume responsibility for safety and general well-being of people detained).

Common questions also circle on the (in)adequacy of ICE's policies and practices governing the conditions of confinement, including ICE's failure to follow CDC Guidelines. These issues, which are at the core of the claims asserted by Plaintiffs and the class constitute the type of common questions that courts have found sufficient to meet the commonality requirement. For example, in Hernandez v. City of Monterey , the court certified "a class of inmates challenging jail safety and health care policies and practices, and a subclass of inmates challenging jail disability policies and practices." 305 F.R.D. 132, 139 (N.D. Cal. 2015).

Moreover, the very nature of this suit and the relief requested (other than release of detainees) also support a finding of commonality.

Specifically, in a civil rights lawsuit such as this, "commonality requires only that there be at least one issue whose resolution will affect all or a significant number of the putative class members." Braggs v. Dunn , 321 F.R.D. 653, 664 (M.D. Ala. 2017) (quoting Williams v. Mohawk Indus., Inc. , 568 F.3d 1350, 1355 (11th Cir. 2009) ) (internal brackets omitted). This "relatively light burden" does not require that all questions of law and fact be common to the putative class members. See Vega , 564 F.3d at 1268.

Here, ICE's uniform safety and hygiene practices and its alleged consistent refusal to follow CDC Guidelines at Krome, Broward, and Glades expose each class member to the same "substantial risk of serious harm." See Hernandez , 305 F.R.D. at 157.

All of the current detainees have been, or will be, subjected to these common conditions and common policies and practices, and a determination that ICE's conduct is unconstitutional and violated CDC guidelines will therefore "resolve an issue that is central to the validity" of each and every class member's detention. Dukes , 564 U.S. at 350, 131 S.Ct. 2541.

Plaintiffs say that ICE is holding all members of the class in the same horrific conditions, and the Court should find the necessary facts and rule on the constitutionality of those common conditions "in one stroke." See id.

The fact that certain details relating to their conditions of confinement may or will vary between class members does not defeat commonality. Reid v. Donelan , 297 F.R.D. 185, 191 (D. Mass. 2014), rev'd on other grounds , 819 F.3d 486 (1st Cir. 2016) (granting class certification despite individual differences among class members, where common issues pervade).

Those inevitable differences -- which at most might entail some tailoring in the ultimate non-release remedy the Court might fashion -- do not change the fact that conditions experienced in all three South Florida detention centers at issue here are purportedly all uniformly unsanitary and unconstitutional or that ICE has supposedly shown deliberate indifference towards the risk of COVID-19 infection to all people they are detaining at those three facilities.

In other words, that class members may suffer varying degrees of injury does not defeat commonality. See, e.g., In re Deepwater Horizon , 739 F.3d 790, 810-11 (5th Cir. 2014) ("[T]he legal requirement class members have all ‘suffered the same injury’ can be satisfied by an instance of the defendant's injurious conduct, even when the resulting injurious effects—the damages—are diverse.").

The class members face a common risk of infection, and a ruling that ICE's conduct is unconstitutional and illegal will "resolve an issue that is central to the validity" of each class member's claim. Dukes , 564 U.S. at 350, 131 S.Ct. 2541. Plaintiffs have met Rule 23(a) ’s commonality requirement for the claims seeking relief other than release. Thus, a class action seeking a declaration that the conditions at the three South Florida immigration detention centers constitute cruel and unusual punishment or an injunction requiring that cleaning and hygiene products be provided on a regular basis and that beds be reconfigured to promote social distancing meets the commonality requirement.

ICE contends that the detainees all have "unique characteristics, including their age, gender, general state of health, and specific medical conditions which might render them more vulnerable to COVID-19 infection." [ECF No. 110, p. 2]. This, it says, demonstrates that a challenge to conditions cannot be handled on a class basis. Moreover, ICE notes, Plaintiffs included affidavits detailing their specific medical situations "because they believed those are relevant facts insofar as whether ICE is obligated to take into account their unique medical conditions because such conditions create a risk of serious harm to them, and the disregard of that risk, by conduct more than mere negligence, would constitute deliberate indifference to their serious medical need." Id. at p. 3.
The Undersigned is not convinced that these different medical conditions render class treatment unavailable for claims demanding compliance with CDC Guidelines, however. The purported failure to issue sufficient soap or cleaning products or masks is a scenario applicable to all three facilities, in general. Determining whether ICE officials are deliberately indifferent because they failed to provide these items would typically not depend on whether one detainee is 35 years old or 55 years old, or if one detainee has a cholesterol level of 241 while another has a level of 144. Similarly, the failure to place beds more than six feet apart to facilitate social distancing affects all detainees, and the health status of each detainee would usually not be distinct enough to cause a different conclusion about whether close bed placement constitutes deliberate indifference to a virus-created health risk.

The demand for release, however, presents a far-different picture.

At bottom, the release demand does not meet the commonality requirement. The release demand arises from Petitioners’ habeas corpus claim under 28 U.S.C. § 2241. The Undersigned finds Money v. Pritzker insightful and persuasive and relies upon it to support the conclusion that the purported class seeking release does not meet Rule 23(a) ’s commonality requirement. 453 F.Supp.3d at 1126–29. Because I find Money persuasive, I will provide a detailed discussion of its more-important features.

The Money Plaintiffs asked the Court to force the State of Illinois executive branch to start a process for the potential release of thousands of inmates, through medical furlough or home detention. In particular, the Plaintiffs are ten individuals serving prison sentences in various Illinois facilities. They brought two purported class action lawsuits seeking release of prisoners from state corrections facilities in light of the COVID-19 pandemic.

The Court noted that Plaintiffs are "correct in asserting that the issue of inmate health and safety is deserving of the highest degree of attention." Id. at 1111.

The foundation of those two lawsuits is, for all essential purposes, the same as the one here: the Plaintiffs contend that (1) the prison setting makes them (and other purported class members) especially vulnerable to COVID-19; (2) the government's responses to the danger are insufficient; and (3) the only way to solve the problem is moving prisoners out of prisons.

Similar to the Plaintiffs here, the Money Plaintiffs also filed a motion for a TRO and a preliminary injunction.

Similar to the instant case, Money's ultimate aim is "unmistakably [to] seek to reduce the prison population," which is "the whole point" of the lawsuits, which seek to "remove inmates from prison because they are vulnerable in those facilities." Id. at 1125.

The Court noted that the impetus for Plaintiffs’ claims is the living conditions inherent in a congregate setting during the COVID-19 epidemic. It further pointed to the reality that "all prison facilities, by definition have living conditions that prevent inmates from practicing the social distancing required by current guidance from the CDC" and the Illinois state government. Id. The Court also flagged a truism applicable to the instant case: "If prisons could be reconfigured to permit social distancing and observance of CDC's hygiene recommendations, Plaintiffs would have no claim." Id.

Shifting its analysis to the commonality requirement, the Court noted that the public interest, which must be considered when evaluating a request for a TRO or preliminary injunction, "mandates individualized consideration of any inmate's suitability for release and on what conditions, for the safety of the inmate, the inmate's family, and the public at large." Id. at 1127 (emphasis added).

The public interest factor is one of four requirements for injunctive relief in the Eleventh Circuit. Wreal, LLC v. Amazon.com, Inc. , 840 F.3d 1244, 1247 (11th Cir. 2016).

The Money Court expressed myriad points which apply to the instant lawsuit against ICE:

1. "Each putative class member comes with a unique situation – different crimes, sentences, outdates, disciplinary histories, age, medical history, places of incarceration, proximity to infected inmates, availability of a home landing spot, likelihood of transmitting the virus to someone at home detention, likelihood of violation or recidivism, and danger to the community." Id. at 1128.

Although the detainees here are civil, ICE officials would, and should, consider a detainee's criminal history when assessing him or her for release, as it could easily impact the danger-to-the-community factor used when evaluating appropriateness of release in a given case.

2. Although commonality does not require perfect uniformity, it "does require more uniformity that these Plaintiffs would have on the only matter ‘apt to drive the resolution of this litigation’ ( Wal-Mart, 564 U.S. at 350, 131 S.Ct. 2541 ) -- namely, which class members should actually be given a furlough?" Id.

3. "Assessment of the safety risk must be based on an individualized analysis." Id.

4. "[T]here is no way to decide which inmates should stay, and which inmates should go, without diving into an inmate-specific inquiry." Id.

5. The "permutations here are endless, as rarely, if ever, will any two plaintiffs be alike on the factors that matter at the point of decision." Id.

6. The differences among the factors for all inmates (or detainees, to use the term from the instant case) "are so vast and fundamental that class treatment ... is completely unworkable." Id.

Thus, as outlined by the Money Court, the claims for release are inappropriate for class treatment because they do not meet the commonality element.

In a supplemental memorandum of law [ECF No. 103], Plaintiffs attempt to distinguish Money by emphasizing that Plaintiffs’ sole claim for relief there was release from confinement (while the claims here include requests for relief to protect them from the risk of COVID-19 infection. They note that the TRO-imposed measures benefit every person at all three facilities. The Undersigned appreciates this important distinction. And that is why I'm recommending that a class be certified for the non-release claims, e.g., for claims designed to require health-focused measures at the facilities).

3. Typicality

The typicality requirement centers on the relationship between the proposed class representatives and the other members of the class. Ibrahim v. Acosta , 326 F.R.D. 696, 700 (S.D. Fla. 2018) (citing Vega , 564 F.3d at 1275 ). This analysis turns on "whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named class plaintiffs, and whether other class members have been injured by the same course of conduct." In re checking Account Overdraft Litig. , 286 F.R.D. 645, 653 (S.D. Fla. 2012). "A sufficient nexus is established if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory." In re Terazosin Hydrochloride Antitrust Litig. , 220 F.R.D. 672, 686 (S.D. Fla. 2004) (internal citation omitted).

Commonality and typicality tend to overlap, as each looks to the nature of the claims presented in the case, and whether the class members and the named plaintiffs are similarly situated as to those claims. See Dukes , 564 U.S. at 349, n.5, 131 S.Ct. 2541

Here, the proposed class members have suffered the same injury because they are subject to the same confinement under the same allegedly unconstitutional conditions caused by the same purported deliberate indifference by the same entity (i.e., ICE) which is exposing them to the same risk of developing COVID-19. [See ECF No. 76, pp. 6-10]; see also Armstrong v. Davis , 275 F.3d 849, 869 (9th Cir. 2001) (finding typicality requirement is satisfied when "the cause of the injury is the same—here, the Board's discriminatory policy and practice"). All class members are forced to live in close quarters with others in civil detention -- when they sleep, eat, shower, and use the toilet. Furthermore, all class members are exposed to a similar lack of hygiene and health products and an alleged lack of screening, personal protective equipment and medical oversight.

Therefore, to the extent that the named representatives and putative class members are seeking relief other than release, then they have met the typicality requirement. But to the extent that they all seek release, then the typicality requirement, which is similar to the commonality requirement, is not met for the same reasons outlined in Money. 453 F.Supp.3d at 1126–28.

4. Adequacy

Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). Adequacy depends on the resolution of two questions: "(1) whether plaintiffs’ counsel are qualified, experienced, and generally able to conduct the proposed litigation and ... (2) whether plaintiffs have interests antagonistic to those of the rest of the class." See Cheney , 213 F.R.D. at 496 (quoting Kirkpatrick v. J.C. Bradford & Co. , 827 F.2d 718, 726 (11th Cir. 1987) ).

The Undersigned rejects ICE's argument that typicality is not met because the claims may vary depending on which of the three detention facilities are at issue.

ICE also argues that adequacy is not met because future putative class members may confront different conditions, which "may vary over time." [ECF No. 92, p. 9]. But this concern is easily addressed by limiting the class to detainees currently housed at the three facilities and excluding those who will be housed there in the future. Savino v. Souza , No. 20-10617, 453 F.Supp.3d 441, 453 (D. Mass. Apr. 8, 2020) (excluding future ICE detainees from class because "the situation is rapidly evolving and future detainees may well be subject to different confinement conditions than those now obtaining," which means that the named representatives might not be able to "fairly and adequately protect the interests of those future detainees").

ICE has not challenged the adequacy of Plaintiffs’ counsel, and the Undersigned has little difficulty concluding that they are experienced and will fairly and adequately represent the interests of the class.

Plaintiffs have met the adequacy requirement, but the class for the non-release claims will not include future detainees and it will not include those detainees who have already been transferred. Judge Cooke has already entered an Order authorizing ICE to transfer detainees at the three South Florida facilities to other immigration detention facilities. This was done in order to provide a method to quickly reduce the census populations. In addition, the option of using a transfer to reduce the number of detainees is one which some prisoners actually request in the COVID-19 lawsuits. See e.g., Mays v. Dart , No. C 2134, 456 F.Supp.3d 966, 974–75 (N.D. Ill. Apr. 27, 2020).

ii. Analysis of the Rule 23(b) Factor

Plaintiffs say they are proceeding under Rule 23(b), which authorizes a class action if "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2).

When assessing a Rule 23(b) theory, "the critical inquiry is whether the class members have suffered a common injury that may properly be addressed by class-wide injunctive or equitable relief." Ibrahim , 326 F.R.D. at 701 (citing Holmes v. Continental Can Co. , 706 F.2d 1144, 1155 (11th Cir. 1983) ); see also Dukes , 564 U.S. at 360, 131 S.Ct. 2541 (internal citation omitted) ("The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.").

"The touchstone of a 23(b)(2) class is that the class claims must be cohesive." Harris v. Union Pacific R.R. Co. , 953 F.3d 1030, 1033 (8th Cir. 2020). Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. Dukes , 564 U.S. at 360, 131 S.Ct. 2541. More importantly, a Rule 23(b)(2) class action is appropriate "only when a single injunction or declaratory judgment would provide relief to each member of the class," not "when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant." Id.

Plaintiffs’ argument in favor of Rule 23(b)(2) certification focuses on their challenges to conditions (as opposed to a demand for release from detention). For example, they say they all "are being denied the same opportunity to socially distance, the same soap and cleaning items, and the same personal protective equipment." [ECF No. 81, p. 15].

The Undersigned agrees that injunctive relief concerning these types of remedial measures can be provided on a class-wide basis. A decision to issue masks twice a week, for example, inures to the benefit of all detainees.

But Rule 23(b)(2) is "the sticking point for the habeas corpus plaintiffs’ attempts to bring a representative action ..." Mays , 456 F.Supp.3d at 994 (emphasis added). The Undersigned finds Mays v. Dart persuasive and will therefore provide a comprehensive review of its legal analysis.

Two Cook County Jail (in Chicago, Illinois) detainees filed a lawsuit against the county sheriff, who operates the jail, on behalf of themselves and a purported class of similarly situate persons. They alleged that the sheriff violated the constitutional rights of jail detainees by failing to provide them with reasonably safe living conditions in the face of the current coronavirus pandemic. They asserted claims under 42 U.S.C. § 1983 and for writs of habeas corpus under 28 U.S.C. § 2241.

Unlike Plaintiffs in the instant case, who urge an injunction preventing ICE from transferring any detainees to other facilities, the plaintiffs in Mays v. Dart affirmatively requested a transfer from the Cook County Jail to other jail locations within the sheriff's control.

The Mays v. Dart Court evaluated the case on a claim-by-claim basis and therefore needed to address the propriety of a representative action for the habeas corpus claim. After noting that Rule 23 ’s class action provisions do not apply to habeas corpus proceedings in the Seventh Circuit, the Court noted that representative actions, which "are analogous to class actions," can on rare occasion be brought in habeas corpus proceedings. Id. at 992. Moreover, the Court held that Rule 23 "is instructive in analyzing whether plaintiffs can bring a representative action." Id.

Significantly, the plaintiffs there also relied on, or analogized to, Rule 23(b)(2). But the Court held that the Plaintiffs did not meet its requirements. Specifically, the Court explained that "in actions where plaintiffs seek an injunction that would ‘merely initiate a process through which highly individualized determinations of liability and remedy are made,’ Rule 23(b)(2) is not satisfied." Id. at 995 (citing Jamie S. v. Milwaukee Public Schools, 668 F.3d 481, 499 (7th Cir. 2012) ).

The Court noted the reality that issuing writs of habeas corpus "would entail individualized proceedings," a result which made Rule 23(b)(2) unavailable. Id. at 995. Moreover, it noted that the Court would "need to consider the circumstances of the detained persons and any threat they pose to public safety, which plainly would vary from one person to another." Id. at 997. This, the Court explained, "is a process that would render the claim unsuitable for certification under Rule 23(b)(2) or its analogy for representative actions." Id.

The Court noted that the Prison Litigation Reform Act of 1995 ("PLRA") mandates that a court "give substantial weight to any adverse impact on public safety" before issuing preliminary injunctive or prospective relief" that would apply to the habeas corpus claim. Id. at 995–96. Neither side has argued that the PLRA applies here, and Plaintiffs’ counsel took the position in a recent hearing that it did not apply. Nevertheless, Plaintiffs are demanding release or release on conditions, and they have not suggested that a danger-to-the-community analysis is somehow unavailable or improper in an assessment of eligibility for release. These assessments would have to be made on an individualized basis, which is contrary to the class-wide requirement of Rule 23(b)(2) relief.

The same scenario applies here (as to the habeas corpus claims for release). Because release orders must be made individually, there cannot be a class-wide injunction for all detainees (i.e., there would not be one injunction requiring a mass release of all 1,214 detainees). Thus, Rule 23(b)(2) is inapplicable.

V. Conclusion

The Undersigned respectfully recommends that Judge Cooke grant the class certification motion for the claims concerning the conditions of confinement and for declaratory and injunctive relief but deny it for the habeas corpus claims for release. Moreover, the class for the non-release claims challenging the conditions at the three centers would not include those who will be transferred into the facilities in the future.

Plaintiffs allege in their new emergency motion (which has not been referred to me) that ICE is playing a shell game. Specifically, they allege that ICE's transfers are a "naked (and legally erroneous) attempt to shirk this Court's oversight" and that the hygiene conditions associated with the transfers are horrific. [ECF No. 106, p. 3]. But ICE has not yet had the chance to respond to these allegations, so the Undersigned cannot conclude or even speculate about whether ICE is legitimately using transfers to minimize the census for appropriate, health-focused reasons, or whether it is doing what Plaintiffs accuse it of doing: "cross[ing] over from the deliberate indifference this Court previously found and mov[ing] into the realm of outright disregard for this Court's authority." Id.

Although this Report recommends that new, incoming detainees not be part of the class, any detainee transferred into the three facilities would reap the benefit of injunctive or declaratory relief concerning conditions provided to the named Petitioners and other class members, regardless of whether they were in a certified class or sub-class. See generally Dixon v. Ivey , No. 2:20-cv-248-WHA, 2020 WL 2831065, at *2, 2020 U.S. Dist. LEXIS 81183 at *4 (M.D. Ala. May 6, 2020) (recommending denial of inmate's motion for class certification in COVID-19-related lawsuit over allegedly unsafe and hazardous conditions and citing a Tennessee federal case denying a class certification motion involving county jail inmates because "any declaratory relief granted ... would likely inure to the benefit of other similarly-situated individuals," even if not technically in a class).

The parties take diametrically opposite positions on whether this Court would still have jurisdiction over claims for those detainees who have been transferred to other facilities. The answer is not simple. Like the answer to many legal questions, the answer here is that it depends. Specifically, it depends on whether the analysis concerns the habeas claims for release (as opposed to the challenge to conditions), whether they were transferred to one of the three immigration detention facilities at issue here (or another one, such as one in Texas), and whether Petitioners/Plaintiffs can establish that ICE transferred them to deprive this Court of jurisdiction.

For the named 58 detainees transferred after they already joined this lawsuit, their habeas claims would, in the absence of other circumstances, remain with the Court if they were transferred among the three centers (but not if they were transferred elsewhere). Ex parte Mitsuye Endo , 323 U.S. 283, 306, 65 S.Ct. 208, 89 L.Ed. 243 (1944) ("[T]he district court acquired jurisdiction in this case and [ ] the removal of Mitsuye Endo did not cause it to lose jurisdiction where a person in whose custody she is remains within this district.").

Endo was decided more than seventy-five years ago, but its core ruling still remains vital today, as more-recently confirmed by the United States Supreme Court in Rumsfeld v. Padilla , 542 U.S. 426, 441, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (emphasis added) (" Endo stands for the important but limited proposition that when the Government moves a habeas petitioner after she properly files a petition naming her immediate custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner's release.").

For purposes of detainees transferred, for example, from Krome to Broward after they joined the lawsuit, the Endo rule would apply. A detainee transferred, for example, to Texas would not, without more, be able to benefit from the Endo rule. But Endo would assist a detainee transferred from Krome to Glades after he joined the lawsuit because ICE's field officer (whose jurisdiction encompasses Glades, even though Glades is in the Middle District of Florida, not the Southern District of Florida) could produce a Glades detainee for the habeas claim. See e.g., Masingene v. Martin , 424 F. Supp. 3d 1298 (S.D. Fla. 2020).

Some courts seem to overlook the Padilla rule that a court retains jurisdiction if there is a "respondent within its jurisdiction who has legal authority to effectuate the prisoner's release" and permit the habeas claim to go forward even if the official who can produce the release is located outside of the district or lacks authority over the facility where the prisoner or detainee is located. See e.g., Parks v. Williamson, No. 08-403, 2009 WL 302229 (E.D. Ky. Feb. 6, 2009) (relying on Endo and Padilla for a holding that the Pennsylvania federal court still had jurisdiction over a habeas corpus petition filed by a federal prisoner after he was transferred to a Kentucky federal prison). The Undersigned is not persuaded by those cases. Rather, I find the analysis outlined in Parker v. Hazelwood , No. 17-cv-484, 2019 WL 4261832 (D.N.H. Sept. 9, 2019) (collecting cases) to be more persuasive, as it directly addresses the language used in Padilla . That language restricts the Endo rule to situations where the respondent who can produce the body is within its jurisdiction.

Therefore, the general and presumptive rule would be as outlined above. However, there is the possibility that an exception could alter this result. In Padilla , the Supreme Court noted that "there is no indication that there was any attempt to manipulate behind Padilla's transfer." 542 U.S. at 441, 124 S.Ct. 2711 (emphasis added). Therefore, the Supreme Court noted, his "detention is not unique in any way that would provide [an] arguable basis for a departure from the immediate custodian rule." Id. at 441-42, 124 S.Ct. 2711.

In the instant case, though, Petitioners are highly suspicious of ICE's motives and strongly suggest the possibility that the ICE-facilitated transfers may be part of a "shell game" designed to strip the Court of jurisdiction. [ECF No. 106, p. 3]. Therefore, if Petitioners could satisfactorily prove their hunch, then the Court "might entertain jurisdiction over [their] claim[s] if there were evidence of efforts on the part of the defendants to evade the jurisdiction of the Court." Cf. McKinnon v. Talladega County, Ala. , 745 F.2d 1360, 1363 (11th Cir. 1984) ; see also Padilla , 542 U.S. at 441-42, 124 S.Ct. 2711 ; cf. Murr v. Orient Corr'tl Inst. , 837 F.2d 476 (Table) (6th Cir. 1988) (emphasis added) (citing McKinnon and noting that "nowhere does Plaintiff specifically claim that defendants transferred him in order to render these claims moot "). To the extent that the already-named Petitioners seek to avoid a situation where this Court lost (or were to lose, in the future) jurisdiction over their habeas claims after they were transferred to facilities beyond the jurisdiction of ICE's Miami-based Field Officer, they would need to submit evidence (rather than a mere mistrustful mindset) of ICE's bad faith. ICE says the transfers were done to reduce the number of detainees in response to this lawsuit, and Judge Cooke entered an Order permitting transfers after an evaluation of the detainees’ eligibility for release pursuant to ICE's COVID-19 April 10, 2020 Pandemic Response Requirements. Given these circumstances, it might be challenging for Petitioners to establish a bad faith motive for the transfers.

See generally Vasquez v. Reno , 233 F.3d 688, 696 (1st Cir. 2000) (emphasis added) (holding that an alien who seeks a writ of habeas corpus contesting the legality of his detention by federal immigration officials "normally" must name his custodian and cannot name the Attorney General as the Respondent but noting that it could "envision ... extraordinary circumstances" justifying a different result, such as where the immigration officials "spirited an alien from one site to another in an attempt to manipulate jurisdiction ."). In that case, the appellate court noted that petitioner "has neither marshaled facts suggesting furtiveness nor made a showing of the elements necessary to demonstrate bad faith." Id.

The Undersigned appreciates that proving bad faith might be a daunting and potentially frustrating task, as outlined in Eubanks v. Wilson , No. 15-2677, 2017 WL 2303506, at *5 (D. Minn. April 30, 2017) (emphasis added):

As a practical matter, if jurisdiction over an inmate's habeas petition could be defeated by mere transfer of the inmate to a facility outside the territorial limits of the court, the interests of justice would be potentially frustrated. A petitioner so transferred could find himself engaged in an endless game of whac-a-mole chasing the government across the country in an effort to have his action decided at the precise moment when jurisdiction permitted. While it has been suggested that such abuse could be prevented where the petitioner could demonstrate bad faith in the transfer decision, that would put an undue burden on litigants who lack the ability and wherewithal to establish such abuse.

On the other hand, if Petitioners demonstrate that ICE facilitated transfers without following Judge Cooke's Order that it could do so only by evaluating transfer eligibility pursuant to the PRR, then the balance would be impacted in a way which would favor an attempt to demonstrate bad faith jurisdictional gamesmanship.

Concerning the non-release claims asserted here, claims for money damages are not mooted by a transfer to another facility. McKinnon v. Talladega Cty. , 745 F. 2d 1360, 1363 (11th Cir. 1984). But Petitioners are not seeking money damages.

But transfers to other facilities do moot claims for declaratory and injunctive relief. Id. Given the nature of this case (i.e., 58 named Plaintiffs housed at three detention centers challenging the conditions at all three facilities), transfers from one of the three facilities to another one of the three facilities would not moot the claim because the conditions are alleged to be generally similar and because the same Field Officer is in charge of all of them. But a Plaintiff transferred from one of the three South Florida immigration detention facilities to, for example, an immigration facility in Texas would, in the absence of other circumstances (such as proof of bad faith) not be able to continue to pursue his claim here because jurisdiction would no longer be present.

As highlighted above, though, this transfer-causes-loss-of-jurisdiction result might not apply if Plaintiffs provided sufficient evidence of an ICE plan to use the transfers to "evade the jurisdiction of the Court." Id. ICE has already taken the position that its transfers were Court-authorized and done to accomplish the legitimate purpose of reducing the census, so Plaintiffs would confront the same hurdles they would need to clear in order to avoid the Padilla rule for transfers of prisoners or detainees pursuing habeas claims.

One final point: The 58 named detainees and those in the prospective class are all in an unenviable position. Many of them are likely scared. In fact, most of them may be scared of the COVID-19 health risks they confront while being housed at the detention centers. To succeed on their legal claims, however, they must trudge through the legal headwinds created by Swain , a case admittedly based on different facts but one maintaining the deliberate indifference hurdle which prisoners and detainees still must clear to prove cruel and unusual punishment, even in the midst of a once-in-a-century pandemic which has killed more than 93,000 persons in the United States and more than 318,000 persons globally.

The current inability to achieve social distancing is, to be sure, a significant medical issue at the three facilities, but Swain held that this is likely not a scenario "evincing a reckless state of mind." 958 F.3d at 1089. The Undersigned outlined the realities of detention centers and the difficulties inherent in operating them in the Report and Recommendations [ECF No. 63] issued on the TRO motion, and there is no need to repeat them here. For present purposes, it is sufficient to simply note that a post- Swain Plaintiff class will need to address and overcome these realities when attempting to obtain a preliminary injunction or other relief requiring deliberate indifference. In addition, they will need to grapple with Swain ’s perspective that officials operating jails have experience and expertise which a Court should respect before deciding to classify their conduct as deliberately indifferent.

At bottom, class certification on some claims is certainly a step forward for Plaintiffs. But it is only one step on a multi-step journey likely to be filled with precedent-based potholes and Swain - influenced legal road hazards. But "a journey of a thousand miles begins with a single step," and Plaintiffs have already taken a few substantial steps (e.g., a TRO, the extension of the TRO and this Report and Recommendations recommending class certification of some claims).

Well-known ancient Chinese proverb, probably first written between the 4th and 6th Centuries. Meaning of "A Journey of a Thousand Miles Begins with a Single Step," Literary Devices: Definition and Examples of Literary Terms, https://literarydevices.net/a-journey-of-a-thousand-miles-begins-with-a-single-step/ (last visited May 22, 2020).

VI. Objections

The parties will have only fourteen (14) calendar days from the date of being served with a copy of this Report and Recommendations within which to file written objections, if any, with the District Judge. Each party may file a response to the other party's objection within fourteen (14) calendar days of the objection. Failure to timely file objections shall bar the parties from a de novo determination by the District Judge of an issue covered in the Report and shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions contained in this Report except upon grounds of plain error if necessary in the interest of justice. See 28 U.S.C. § 636(b)(1) ; Thomas v. Arn , 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Henley v. Johnson , 885 F.2d 790, 794 (11th Cir. 1989) ; 11th Cir. R. 3-1 (2016).

The Undersigned does not view the class certification motion as an emergency , and Plaintiffs (who asked for "expedited" treatment) have not designated it as one either. Therefore, the Undersigned is using the 14-day presumptive deadline established by Local Rule 4. Because this amended version of the Report and Recommendation contains a more-detailed discussion of the transfer issue and jurisdiction, the 14 days runs from today , not from the May 22, 2020 date of the initial Report and Recommendations.

RESPECTFULLY RECOMMENDED in Chambers, in Miami, Florida, on May 29, 2020.

/s/ Jonathan Goodman

Jonathan Goodman

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable Marcia G. Cooke

All counsel of record

Gayle v. Meade

Opinion

I. BACKGROUND

B. Facts

i. COVID-19 Transmission in Immigration Detention Facilities

ii. CDC's and ICE's Pandemic Response Guidelines

a. The CDC's Pandemic Response Guidelines

b. ICE's Pandemic Response Guidelines

iii. Reported Facilities Conditions

iv. Aftermath of Temporary Restraining Order

II. LEGAL STANDARD

A. Class Certification

B. Preliminary Injunction

III. DISCUSSION

A. Class Certification

i. Article III Standing

ii. Rule 23(a) Requirements

a. Numerosity

b. Commonality

c. Typicality

iii. Rule 23(b)

B. Preliminary Injunction

i. Success on the Merits

a. Deliberate Indifference to Medical Needs

ii. Likelihood of Irreparable Harm

iii. Balance of the Equities and Public Interest

C. Motion to Compel

IV. CONCLUSION

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 20-21553-COOKE/GOODMAN

I. Introduction and Summary of Recommendations

II. Factual Background

III. Procedural Background

IV. Applicable Legal Standards & Analysis

V. Conclusion

VI. Objections

Copies furnished to:

Gayle v. Meade

Gayle v. Meade

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