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viewing allegation by petitioner detained in CoreCivic Eloy Detention Center as challenging the fact of confinement and stating that “in the absence of clear or binding authority to the contrary, her claims are cognizable under § 2241.”
Summary of this case from Weibel v. BlanckenseeOpinion
No. CV-20-00732-PHX-SPL (JFM)
2020-05-27
Perla Beatriz GUTIERREZ-LOPEZ, Petitioner, v. Fred FIGUEROA, et al., Respondents.
Christina M. Woehr, Federal Public Defenders Office, Tucson, AZ, for Petitioner. William Charles Staes, US Attorneys Office, Phoenix, AZ, for Respondents.
Christina M. Woehr, Federal Public Defenders Office, Tucson, AZ, for Petitioner.
William Charles Staes, US Attorneys Office, Phoenix, AZ, for Respondents.
ORDER
Steven P. Logan, United States District Judge
Petitioner Perla Beatriz Gutierrez-Lopez (A# 024-496-211), who is detained in the CoreCivic Eloy Detention Center in Eloy, Arizona, has filed, through counsel, a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) and an Application for Temporary Restraining Order and Order to Show Cause (Docs. 2-3) seeking her immediate release from detention due to the health risks associated with her potential exposure to COVID-19. This matter has been fully briefed, and as follows, the Petition will be granted in part.
The Court finds this matter suitable for decision as submitted on the briefs without a hearing. See LRCiv 7.2(f).
I. Background
A. Coronavirus Disease 2019 ("COVID-19")
COVID-19, a disease caused by a novel strain of coronavirus (SARS-CoV-2), was declared by the World Health Organization as a global pandemic on March 11, 2020. As of May 26, 2020, in the United States, 1,667,154 individuals have been confirmed as positive for COVID-19, of which 16,575 have been confirmed positive in Arizona.
Coronavirus Resource Center : COVID-19 Dashboard , Johns Hopkins Univ. & Med., https://coronavirus.jhu.edu/map.html (last accessed May 26, 2020).
The United States Department of Health and Human Services Centers for Disease Control and Prevention ("CDC") reports that individuals who contract and transmit COVID-19 experience symptoms that range from negligible, with some individuals remaining entirely asymptomatic, to mild, such as fever, coughing, and difficulty breathing, to severe, including acute respiratory distress, severe pneumonia, septic shock, and multi-organ failure, or even death. The CDC estimates that serious illness or death occurs in 16% of all cases. Those at high-risk of suffering severe illness or death from COVID-19 include individuals who are 65 years and older, or individuals of any age with underlying medical conditions including chronic lung disease, moderate to severe asthma, a serious heart condition, a weakened immune system, severe obesity, diabetes, chronic kidney disease, or liver disease.
CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) , https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last accessed May 26, 2020).
CDC Situation Summary , https://www.cdc.gov/coronavirus/2019-ncov/summary.html (last accessed May 26, 2020).
CDC People Who Are at Higher Risk for Severe Illness , https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last accessed May 26, 2020).
The virus that causes COVID-19 is believed to spread mainly through close contact from person-to-person through respiratory droplets from someone who is infected. The incubation period for COVID-19 extends 14 days on average, with a median time of 4-5 days from exposure to symptoms onset. The CDC recommends that to avoid exposure and transmission, the public should maintain a physical distance of at least six feet from others, wear cloth face covers, frequently wash hands or use hand sanitizer, and disinfect frequently touched surfaces. High-risk individuals should take additional "special precautions," such as continue active treatment of underlying medical conditions, obtain vaccinations against other diseases like influenza and pneumococcal illness, stay home, and remain away from others "as much as possible."B. Detention Facility COVID-19 Guidance
CDC How COVID-19 Spreads , https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last accessed May 26, 2020).
See n.3, supra.
CDC How to Protect Yourself & Others , https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last accessed May 26, 2020).
CDC Groups at Higher Risk for Severe Illness , https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last accessed May 26, 2020).
On March 23, 2020, the CDC issued an "Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities" ("CDC Guidance") which "provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors." (CDC Guidance at 2.) The guidance reports there is a heightened risk of transmission of COVID-19 to and among individuals within detention facilities due to, among other things, the number of sources which can introduce them into a facility's population, including detention staff, visitors, contractors, vendors, legal representatives, court staff, and new detainees; the congregate environment in which detainees "live, work, eat, study, and recreate"; and limited medical isolation options, hygiene supplies, and dissemination of accurate information among detainees. (CDC Guidance at 2.) For those reasons, the guidance recommends that detention facilities implement specific measures to prepare for potential transmission of COVID-19, to prevent the spread of COVID-19, and to manage confirmed and suspected COVID-19 cases to prevent further transmission and provide treatment.
CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf (last accessed May 26, 2020).
"People in correctional and detention facilities are at greater risk for some illnesses, such as COVID-19." CDC FAQs for Correctional and Detention Facilities , www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/faq.html#People (last accessed May 26, 2020).
The guidance states that "[a]lthough social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19." (CDC Guidance at 4.) It recommends implementing social distancing strategies to increase the physical space between detained persons "(ideally 6 feet between all individuals, regardless of the presence of symptoms)," such as increasing space between individuals in cells, increasing space between individuals in lines and waiting areas; choosing recreation spaces where individuals can spread out and staggering time in those spaces; staggering meals and rearrange seating in the dining hall so that there is more space between individuals; providing meals inside housing units or cells; limiting the size of group activities and increasing space between individuals during group activities. (Id. at 4, 11.) It further recommends that facilities should house quarantined individuals who have had close contact with a COVID-19 case, or individuals in medical isolation who are suspected or confirmed positive with COVID-19, in order of preference, separately in single cells or as a cohort, although "[c]ohorting should only be practiced if there are no other available options." (Id. at 15-20.) "If cohorting is unavoidable, [facilities should] make all possible accommodations to reduce exposure risk for the higher-risk individuals." (Id. at 19.)
"Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group or quarantining close contacts of a particular case together as a group." (CDC Guidance at 3.)
CDC Guidance also recommends that facilities implement intensified cleaning and disinfecting procedures and provide education on, and reinforcement of, hygiene practices. (CDC Guidance at 9-10.) Facilities should, among other things, provide adequate supplies to support intensified cleaning and disinfection practices, and "continually restock hygiene supplies throughout the facility." Facilities should provide detainees and staff no-cost access to soap, running water, hand drying machines or disposable paper towels, tissues, no-touch trash receptacles, and alcohol-based hand sanitizer with at least 60% alcohol where security restrictions allow. (Id. ) The guidance underscores that because the virus can be transmitted from contagious, yet asymptomatic individuals who are present within the facilities, "[b]oth good hygiene practices and social distancing are critical in preventing further transmission." (Id. at 8.)
On April 10, 2020, the United States Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE"), Enforcement and Removal Operations ("ERO"), developed "COVID-19 Pandemic Response Requirements" ("ICE PRR"), which "builds upon previously issued guidance and sets forth specific mandatory requirements expected to be adopted by all detention facilities housing ICE detainees, as well as best practices for such facilities, to ensure that detainees are appropriately housed and that available mitigation measures are implemented during this unprecedented public health crisis." (ICE PRR at 3; Berger Decl. ¶ 9.) It states that facilities "must ... [c]omply with the CDC's Interim Guidance." (ICE PRR at 5-6, requiring compliance for both dedicated and non-dedicated facilities.) ICE has also issued "ICE Guidance on COVID-19" along with COVID-19 testing statistics, which it updates daily on its website.
COVID-19 Pandemic Response Requirements , https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf (last accessed May 26, 2020).
ICE PRR incorporates by reference and provides hyperlink attachments to preceding ICE guidance specific to detention and COVID-19, as well as CDC guidance, including: ERO Updated Guidance, COVID-19 Detained Docket Review (Apr. 4, 2020); ERO Memorandum on Coronavirus Disease 2019 (COVID-19) Action Plan (Mar. 27, 2020); Updated ICE statement on COVID-19 (Mar. 18, 2020); ICE National Detention Standards, Medical Care Standard 4.3 (2019), ICE Performance-Based National Detention Standards, Standard 4.3 (2011); ICE Performance-Based National Detention Standards, Medical Care Standard 4-22 (2008); and CDC Guidance, Public Health Recommendations for Community-Related Exposure, Strategies to Optimize the Supply of PPE and Equipment, and Cleaning and Disinfection for Community Facilities. (ICE PRR at 17-18.)
Declaration of Captain Luzviminda Peredo-Berger, M.D. ("Berger Decl.") (Docs. 28-2, 30-2).
ICE Guidance on COVID-19 , https://www.ice.gov/coronavirus (last accessed May 26, 2020).
C. CoreCivic Eloy Detention Center
The CoreCivic Eloy Detention Center ("EDC") in Eloy, Arizona, is a privately-run detention facility contracted by ICE. (Berger Decl. ¶ 3.) CoreCivic manages EDC facility operations, security, and transportation," and ICE Health Services Corps ("IHSC") provides medical, dental, and mental health care to detainees in EDC. (Id. ¶¶ 3, 5.)
EDC houses both male and female detainees and has a capacity to house approximately 1,500 individuals. (Doc. 1 ¶ 44; Berger Decl. ¶ 14.) Detainees live in units, commonly referred to as tanks or pods. The units are comprised of individual cells which house an average of two detainees each, and have, at a minimum, a bunk bed, a sink, and a toilet. (Lopez Decl. ¶¶ 8, 12, 23.) Currently, there are approximately 26,660 detainees in ICE custody, of which 2,394 have been tested for COVID-19, and 1,201 have been confirmed positive. In EDC, zero detainees and one "ICE employee" have been confirmed positive for COVID-19.
Declaration of Perla Beatriz Gutierrez-Lopez ("Lopez Decl.") (Doc. 1 at 2-7).
See n.16, supra.
D. ICE Protocols in EDC
"Since the onset of reports of [COVID-19], ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees." (Berger Decl. ¶ 7.) ICE also "closely follows" CDC Guidance. (Id. ¶ 7, n.1.)
In EDC, "IHSC staff are screening all detainee intakes when they enter the facilities including travel histories, medical histories and checking body temperatures and have procedures to continue monitoring the populations’ health." (Berger Decl. ¶ 20.) "[D]etainees are assessed for fever and respiratory illness, 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. ¶ 11.) Each detainee is also "screened for disabilities upon admission by a Registered Nurse. Identified disabilities are further evaluated and reasonable accommodations are provided as medically appropriate." (Id. ¶ 10.)
In EDC, "[t]hose detainees who present symptoms compatible with COVID-19 will be placed in isolation and monitored for any progressive or consistent symptoms. Thereafter, the detainee is referred to the next higher-level provider to assess symptoms and assigned testing if medically justified and appropriate. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be referred to a local hospital." (Berger Decl. ¶ 12.) "In testing for COVID-19, IHSC is also following [CDC's] guidance ... to safeguard those in its custody and care." (Id. ¶ 8.) EDC "staff have identified housing units for the quarantine of patients who are suspected of or test positive for COVID-19 infection." (Id. ¶ 22.)
"In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness.... Those that show onset of fever and/or respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued when the 14-day incubation period completes with no new cases. Per ICE policy, detainees diagnosed with any communicable disease who require isolation are place[d] in an appropriate setting in accordance with CDC or state and local health department guidelines." (Berger Decl. ¶ 13.)
EDC has clinic staff that "provides daily access to sick calls in a clinical setting, as well as mental health services and [has] the ability to admit patients at the local hospital for medical and mental health care." (Berger Decl. ¶ 14.) EDC "staff provide education on COVID-19 to staff and detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting to seek medical care if they feel ill." (Id. ¶ 21.)
EDC "has increased sanitation frequency and provide[ ] sanitation supplies as follows:" (1) EDC "provides hand sanitizer at the entrance to each of the six buildings"; (2) EDC "provides disinfectants and soap in every housing unit at the detention center"; (3) EDC "administration is encouraging both staff and the detention center general population to use [sanitation] tools often and liberally"; (4) EDC "provides disinfectants to staff and cleaning crews and CDC recommended cleaning and disinfection above and beyond normal activity have been implemented"; and (5) EDC "provides hand sanitizer to staff and cleans and disinfects each housing unit between shifts and entire cell blocks on a rotational schedule." (Berger Decl. ¶ 17.)
EDC is "screening all CoreCivic and IHSC staff and vendors when they enter the facilit[y] including body temperatures." (Berger Decl. ¶ 19.) ICE has also "limited professional visits to noncontact visits and suspended in person social visitation and facility tours." (Id. ¶ 18.)
"ICE reviews its detained population of people who are ‘at higher risk for severe illness,’ as identified by the CDC, to determine if detention remains appropriate, considering the detainee's health, public safety and mandatory detention requirements, and adjusted custody conditions, when appropriate, to protect health, safety and well-being of its detainees." (Berger Decl. ¶ 23.)
II. Proceedings
Petitioner is a native of Mexico and a United States lawful permanent resident. (Lopez Decl. ¶ 1; Kazlauskas Decl. ¶¶ 4, 9.) In December 2019, she was placed in removal proceedings, and in January 2020, she was detained in ICE custody in EDC. (Kazlauskas Decl. ¶¶ 15, 19.) Petitioner has a history of and requires ongoing treatment for asthma (Lopez Decl. ¶ 5), which the CDC categorizes as an underlying medical condition that places her at a higher risk of severe illness or death if she contracts COVID-19 (see supra , n.5).
Declaration of Kenneth Kazlauskas ("Kazlauskas Decl.") (Doc. 28-1).
The Petition names as Respondents: EDC Warden Fred Figueroa, Acting ICE Phoenix Field Office Director Albert Carter, ICE Assistant Field Office Directors Cesar Topete and Jason Ciliberti, United States Attorney General William Barr, and Acting DHS Secretary Chad Wolf.
Petitioner claims that, in spite of the heightened risk of transmission of COVID-19 in detention facilities, Respondents have failed to put reasonable recommended policies and practices in place at EDC to abate that risk, and instead, have created conditions that place Petitioner at a greater risk of exposure and impede her ability to protect herself. Petitioner claims that at the time of the filing of her Petition and Application, detention staff frequently did not wear masks and other PPE, even when coming in close contact with detainees. (Lopez Decl. ¶¶ 8-9, 20, 26, 30, 45.) Petitioner was unable to socially distance herself from other detainees in EDC; there were no limitations on the flow of detainees in common areas, and detainees in her unit were unable to maintain a 6-foot distance from others in their cells, bathrooms, by phones, in lines, or in holding cells. (Lopez Decl. ¶¶ 15, 21-23, 44-45.) Petitioner was also unable to practice safe hygiene in EDC; detainees were provided only with limited shampoo or soap to shower, there was either limited or no hand sanitizer in the unit, they were not provided with masks to clean common areas, and they were provided with either limited or no disinfectants to clean their cells and common areas. (Lopez Decl. ¶¶ 17, 24, 26-20, 33, 35-36, 38-39.) Further, detainees were not being screened for COVID-19, and Petitioner was not being provided with medications to treat her underlying medical condition. (Lopez Decl. ¶¶ 6, 13.) Petitioner claims that her continued detention violates the Due Process Clause of the Fifth Amendment on two grounds: (1) the conditions under which Petitioner is detained amount to punishment; and (2) Respondents have affirmatively placed Petitioner in danger by detaining her under conditions that put her at substantial risk of exposure to COVID-19 and suffering serious harm, and have deprived Petitioner of her right to reasonable medical care and safety.
Petitioner asks the Court to: (1) issue a writ of habeas corpus ordering her immediate release from detention or, in the alternative, issue an injunction immediately enjoining Respondents from detaining her; (2) declare "that the continued detention of Petitioner, given her underlying medical condition, puts her at increased risk for severe illness from COVID-19, in violation of the Due Process Clause"; and (3) grant any other and further relief that the Court deems just and proper. She asserts that this Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 2241, 1651, and 2201, and the Suspension Clause of the United States Constitution.
In response, Respondents argue that (1) Petitioner's claims are not cognizable because they challenge the conditions of her confinement, which cannot be remedied through a writ of habeas corpus; (2) Petitioner lacks Article III standing; (3) Petitioner's claims fail on the merits because, since the filing of her Petition and Application, Respondents have put reasonable recommended policies and practices in place at EDC to avoid the risk of widespread transmission of COVID-19; and (4) the relief that Petitioner seeks—immediate release—is an inappropriate remedy in this case. (Docs. 28, 30.)
III. Discussion
A. Cognizability
A federal district court is authorized to grant a writ of habeas corpus under 28 U.S.C. § 2241 where a petitioner is "in custody under or by color of the authority of the United States ... in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(1), (3). "The writ of habeas corpus historically provides a remedy to non-citizens challenging executive detention." Trinidad y Garcia v. Thomas , 683 F.3d 952, 956 (9th Cir. 2012). See alsoMunaf v. Geren , 553 U.S. 674, 693, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) ; Allen v. McCurry , 449 U.S. 90, 98 n.12, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Generally, "[c]hallenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus," whereas a civil rights action is the proper channel for "requests for relief turning on circumstances of confinement." Muhammad v. Close , 540 U.S. 749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004) ; seeHill v. McDonough , 547 U.S. 573, 579, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) ; Nelson v. Campbell , 541 U.S. 637, 643, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004).
While general practice has counseled against it, the Supreme Court has not explicitly foreclosed the use of habeas corpus for conditions-of-confinement claims. SeeZiglar v. Abbasi , 582 U.S. ––––, 137 S. Ct. 1843, 1862, 198 L.Ed.2d 290 (2017) (leaving open the question of whether alien detainees challenging "large-scale policy decisions concerning the conditions of confinement imposed ... might be able to challenge their confinement conditions via a petition for a writ of habeas corpus"); Boumediene v. Bush , 553 U.S. 723, 792, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (declining to determine "the reach of the writ with respect to claims of unlawful conditions of treatment or confinement"); Bell v. Wolfish , 441 U.S. 520, 526, n. 6, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (leaving for "another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement"). Because Petitioner claims that her continued detention under the present conditions is unconstitutional and that her immediate release is the only effective remedy (see e.g., Doc. 1 ¶ 56, n.32), Petitioner's claims can be viewed as challenging the fact, not simply the conditions, of her confinement. SeePreiser v. Rodriguez , 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (where an individual is "challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release," the proper remedy is a writ of habeas corpus). The fact that Petitioner's claims require consideration of detention conditions does not necessarily preclude habeas corpus review. Therefore, in the absence of clear or binding authority to the contrary, her claims are cognizable under § 2241.
Even if the Court were to lack jurisdiction to review Petitioner's claims under § 2241, Petitioner has alternatively pleaded a cause of action under the Fifth Amendment for injunctive and declaratory relief, over which the Court would have jurisdiction under 28 U.S.C. § 1331, as an equitable cause of action under the Constitution. SeeZiglar , 137 S. Ct. at 1865 (observing that alien detainees challenging their conditions of confinement could seek "an injunction requiring the warden to bring his prison into compliance with the regulations discussed above [ ] or some other form of equitable relief"); 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."); Sierra Club v. Trump , 929 F.3d 670, 694 (9th Cir. 2019) (federal courts have equitable authority to grant injunctive relief "against federal officials violating federal law"); Stone v. City & Cnty. of San Francisco , 968 F.2d 850, 861 (9th Cir. 1992) ("Federal courts possess whatever powers are necessary to remedy constitutional violations because they are charged with protecting these rights.").
B. Justiciability
"Article III of the Constitution limits the judicial power of the United States to the resolution of ‘Cases’ and ‘Controversies,’ and ‘Article III standing ... enforces the Constitution's case-or-controversy requirement.’ " Hein v. Freedom from Religion Found., Inc. , 551 U.S. 587, 597-98, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (quotingDaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) ). Article III standing is comprised of three elements. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, the petitioner "must have suffered an injury in fact-an invasion of a legally protected interest." Lujan , 504 U.S. at 560, 112 S.Ct. 2130. "An injury sufficient to satisfy Article III must be ‘concrete and particularized’ and ‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical.’ " Susan B. Anthony List v. Driehaus , 573 U.S. 149, 157-58, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (quotingLujan , 504 U.S. at 560, 112 S.Ct. 2130 ). Second, "there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly ... traceable to the challenged action of the defendant, and not ... the result of the independent action of some third party not before the court." Lujan, 504 U.S. at 560, 112 S.Ct. 2130. And third, "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 561, 112 S.Ct. 2130. Respondents argue that Petitioner lacks standing because her asserted injury is neither actual nor concrete. Respondents maintain that the threat of exposure itself is purely speculative because they have implemented protocols and procedures which have and will prevent COVID-19 from spreading in EDC, pointing to the absence of detainees who have tested positive in EDC. (Doc. 28 at 4, 8.) This argument lacks merit. No one disputes that COVID-19 exists, that it is rapidly and pervasively spreading, that detention facilities face an acute risk of disseminating infectious diseases, or that individuals in ICE custody have contracted COVID-19. The threat of exposure in EDC is not theoretical. To that end, without providing the current population and the number of tests performed in EDC, the number or absence of positive COVID-19 cases offers no insight into the degree to which the disease has or may spread throughout EDC, much less whether Respondents’ practices have served to prevent or contain further transmission.
Petitioner need not have sustained a serious illness, contracted the disease, much less await the escalation of COVID-19 in EDC to demonstrate standing. She need only demonstrate that "the threatened injury is ‘certainly impending,’ or there is a "substantial risk that the harm will occur." Driehaus , 573 U.S. at 158, 134 S.Ct. 2334 ; see alsoHelling v. McKinney , 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) ("a remedy for unsafe conditions need not await a tragic event"). As discussed below, Petitioner has done so.
Respondents also argue that Petitioner's alleged injury is not redressable because she "fails to demonstrate that release will prevent her from contracting COVID-19 or ameliorate the heightened risk of serious illness or death she ostensibly faces upon contracting the virus." (Doc. 28 at 9.) This too fails. Petitioner does not ask the Court to enjoin her exposure to COVID-19. She asks that she not be involuntarily detained under conditions which unreasonably increase the likelihood that she will be exposed. That is redressable by this Court.
C. Merits
The Fifth Amendment's Due Process Clause prohibits the federal government from depriving "any ‘person ... of ... liberty ... without due process of law,’ " and its protections extend "to all ‘persons’ within the United States, including aliens." Zadvydas v. Davis , 533 U.S. 678, 690, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Freedom from physical restraint falls at the core of the liberty interest protected from arbitrary governmental action by the Due Process Clause. Youngberg v. Romeo , 102 457 U.S. 307, 316, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). And where pretrial detention is incident to legitimate government objectives, a detainee has a protected liberty interest in freedom from punishment absent an adjudication of guilt. Bell , 441 U.S. at 534, 99 S.Ct. 1861. The government deprives a detainee of this substantive liberty interest without due process when it detains them under conditions that "amount to punishment." Bell , 441 U.S. at 535, 99 S.Ct. 1861. Conditions resulting in harm or "disability" amount to punishment if (1) they are expressly imposed for the purpose of punishment, (2) they are not "rationally related to a legitimate nonpunitive governmental purpose," or (3) they "appear excessive in relation to" a legitimate governmental purpose. Bell , 441 U.S. at 538-39, 561, 99 S.Ct. 1861 ; see alsoKingsley v. Hendrickson , 576 U.S. 389, 135 S. Ct. 2466, 2473, 192 L.Ed.2d 416 (2015) (government action amounts to punishment if it is "objectively unreasonable").
Petitioner does not challenge Respondents’ purpose for detaining her in the first instance, specifically, to ensure her presence for removal proceedings or to execute a final order of removal. SeeJennings v. Rodriguez, 583 U.S. ––––, 138 S. Ct. 830, 836, 200 L.Ed.2d 122 (2018) ; Demore v. Kim, 538 U.S. 510, 520-22, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) ; Zadvydas, 533 U.S. at 690-91, 121 S.Ct. 2491. Therefore, in light of Kingsley, infra, and subsequent Ninth Circuit precedent, Petitioner's due process claims are best understood as arising from the liberty interest in being free from punishment. SeeBell, 441 U.S. at 534, 99 S.Ct. 1861 ("what is at issue when an aspect of pretrial detention that is not alleged to violate any express guarantee of the Constitution is challenged, is the detainee's right to be free from punishment"); Schall v. Martin, 467 U.S. 253, 269, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) ; Youngberg , 457 U.S. at 316, 102 S.Ct. 2452 (it is "unconstitutional to confine the [civilly] committed—who may not be punished at all—in unsafe conditions").
The government has legitimate interests stemming from its need to manage a detention facility that may justify imposed conditions, such as preserving internal order and maintaining institutional security. Kingsley , 135 S. Ct. at 2473 (citing Bell , 441 U.S. at 540, 99 S.Ct. 1861 ). The government also has a responsibility, and thereby, a legitimate interest in providing for the basic human needs of the detainees held within its custody, such as food, clothing, shelter, medical care, and reasonable safety. DeShaney v. Winnebago County Dept. of Social Services , 489 U.S. 189, 200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Therefore, conditions which pose an objectively unreasonable and substantial risk of serious harm to detainee health or safety are not rationally related to a legitimate nonpunitive government purpose. SeeCastro v. County of Los Angeles , 833 F.3d 1060, 1085 (9th Cir. 2016) (IKUTA, J., dissenting) ("objectively unreasonable action has no legitimate nonpunitive governmental purpose") (citing Kingsley , 135 S. Ct. at 2473 ); Farmer v. Brennan , 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ("gratuitously" allowing violence among prisoners "serves no legitimate penological objective" (internal bracket and citation omitted)); Whitley v. Albers , 475 U.S. 312, 320, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (the government's "responsibility to attend to the medical needs of prisoners does not ordinarily clash with other equally important governmental responsibilities"); Estelle v. Gamble , 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (the denial of medical care which results in pain and suffering does not "serve any penological purpose").
Although Farmer, Whitley, and Estelle centrally concern Eighth Amendment prison condition claims, which involve constitutional standards and considerations that differ from those at issue here, they are relevant insofar as they identify action which serves legitimate institutional objectives, and inaction which clearly does not. SeeZiglar, 137 S. Ct. at 1877 (BREYER, J., dissenting) ("the Eighth Amendment's Cruel and Unusual Punishment Clause ... applies to convicted criminals while the [the Fifth Amendment's Due Process Clause] applies to pretrial and immigration detainees"); see alsoYoungberg , 457 U.S. at 322, 102 S.Ct. 2452 (persons in civil custody "are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish").
In the Ninth Circuit, to prevail on a claim of unconstitutionally punitive conditions of confinement under the Due Process Clause of the Fifth Amendment, a detainee must show:
Due process claims brought under the Fifth and Fourteenth Amendments are analyzed under the same standard. SeePaul v. Davis , 424 U.S. 693, 702 n.3, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).
(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;
(ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant's conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff's injuries.
Castro , 833 F.3d at 1069, 1070-71 (applying the objective standard in Kingsley to failure-to-protect claims); see alsoSmith v. Washington, 781 Fed. App'x 595, 597 (9th Cir. 2019) (applying Castro standards to conditions of confinement claims); Gordon v. County of Orange , 888 F.3d 1118, 1124-25 (9th Cir. 2018) ("extending the objective deliberat[ ]e indifference standard articulated in Castro to medical care claims"); Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (finding no significant distinction between claims alleging inadequate medical care, failure-to-protect, or denial of other conditions of basic necessity). "With respect to the third element, the defendant's conduct must be objectively unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of each particular case.’ " Castro , 833 F.3d at 1070 (quoting Kingsley , 135 S. Ct. at 2473 ).
1. Substantial Risk of Serious Harm
The record shows, and the parties do not dispute, that individuals within detention facilities have a heightened risk of contracting and transmitting COVID-19, and individuals with certain underlying medical conditions face a higher risk of severe illness or death if they contract COVID-19. (See, e.g., CDC Guidance at 2; ICE PRR at 3.) It is also undisputed that because of those risks, detention facilities must implement measures to avoid and limit the spread of COVID-19. (See ICE PRR at 4 ("Given the seriousness and pervasiveness of COVID-19, ICE is taking necessary and prompt measures in response" and "is providing guidance on the minimum measures required for facilities housing ICE detainees to implement to ensure consistent practices throughout its detention operations and the provision of medical care across the full spectrum of detention facilities to mitigate the spread of COVID-19."), 15 ("the facility must be especially mindful of cases that are at higher risk of severe illness from COVID-19" and "make all possible accommodations ... to prevent transmission of other infectious diseases to the higher-risk individual").)
Absent specific measures which safeguard high-risk detainees, or other measures which reasonably prevent and manage detainee exposure to COVID-19, the unmitigated risk of transmission in detention facilities yields a substantial risk of severe illness or death to high-risk detainees. Because reasonable measures have not been implemented in EDC to limit the risk of Petitioner's exposure, see infra, and the parties do not dispute that Petitioner has a medical condition – asthma – which places her at higher risk of severe illness or death if she were to contract COVID-19, the conditions under which Petitioner is detained poses a substantial risk of serious harm to her health and safety.
2. Intentional Decision
Respondents have made an intentional decision with respect to the conditions under which Petitioner is detained by failing to implement responsive measures specific to high-risk detainees in EDC, despite knowledge of the acute risks posed to them. SeeCastro , 833 F.3d at 1070 (a failure to act with respect to a known condition may constitute an intentional decision). While Respondents have been "regularly updating infection prevention and control protocols" since the "onset of reports" of COVID-19, and have reviewed its population detainees "who are ‘at higher risk for severe illness’ " to determine if detention remains appropriate, they have not promulgated or implemented any explicit measures in EDC concerning the care of the high-risk detainees they decide to keep detained. Indeed, despite having been ordered to do so in Fraihat v. ICE , No. 5:19-cv-01546-JGB-SHK, 445 F.Supp.3d 709 (C.D. Cal. April 20, 2020), ICE has yet to "promptly issue a performance standard or a supplement to [ICE PRR] ... defining the minimum acceptable detention conditions for detainees with the Risk Factors, regardless of the statutory authority for their detention, to reduce their risk of COVID-19 infection pending individualized determinations or the end of the pandemic."
3. Objective Unreasonableness
While Respondents have taken some action in EDC to prevent and mitigate the spread of COVID-19 (see Berger Decl., supra ), these actions have not included reasonable, necessary, and available measures to abate the risk of harm to Petitioner and other high-risk detainees.
First, while both CDC and ICE guidance observe that social distancing is essential to preventing and reducing transmission of COVID-19, Respondents have pointed to no specific measure that has been taken in EDC to facilitate social distancing among detainees. (Cf. ICE PRR at 13 ("Although strict social distancing may not be possible in congregate settings such as detention facilities, all facilities housing ICE detainees should implement [listed social distancing] measures").) Respondents do not identify any measures they have taken to reduce the overall population in EDC to provide greater spacing among high-risk detainees. (See ICE PRR at 13 (facilities "should implement ... measures to the extent practicable ... to reduce the population to approximately 75% of capacity").) Respondents merely state that EDC is "not overcrowded" without any discussion of whether the current population makes social distancing feasible. (Berger Decl. ¶ 16.) Nor do Respondents identify any measure taken in EDC that would allow high-risk detainees to maintain six feet of distance from other detainees in their cells, in dining areas, in lines, in medical clinics, or in any other detained space.
Notably, while Respondents have attached a declaration which includes a hyperlink to the ICE PRR (Berger Decl. ¶ 9), Respondents but do not discuss what, if any, specific measures have been implemented in EDC in accordance with that guidance.
See n.16, supra (ICE has "decided to reduce the population of all detention facilities to 70 percent or less to increase social distancing. Detention facilities may also increase social distancing by having staggered meals and recreation times in order to limit the number of detainees gathered together. All community service projects are suspended until further notice.").
Respondents state in cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees will be placed in cohorts, and symptomatic detainees will be referred for evaluation and/or placed in isolation. In the absence of uniform testing of all detainees, however, cohorting is not a reasonable substitute for the safeguards provided by social distancing measures. (See ICE PRR at 11 ("Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified ... social distancing [is] critical in preventing further transmission"); id. at 14 ("Cohorting should only be practiced if there are no other available options."); CDC Guidance at 16, 20 ("If cohorting is unavoidable, [facilities should] make all possible accommodations to reduce exposure risk for the higher-risk individuals ... For example, [facilities should] allocate more space for a higher-risk individual within a shared medical isolation space" or "intensify social distancing strategies for higher-risk individuals.").) Further, because Respondents have not identified specific practiced measures for identifying, screening, and testing symptomatic detainees in EDC, it is not evident that cohorting would have any preventative or remedial value. For example, while Respondents state that EDC educates detainees on requesting "medical care if they feel ill," and symptomatic detainees will be "assigned testing if medically justified and appropriate," they do not identify which symptoms prompt COVID-19 screening or testing, whether non-quarantined detainees are monitored for those symptoms, or what, if any, system is in place for reporting COVID-19 specific symptoms.
Second, while both CDC and ICE guidance state that good hygiene practices are critical to preventing and limiting transmission, Respondents have not identified measures they have taken in EDC to adequately facilitate safe hygiene among high-risk detainees. Respondents state that EDC provides "disinfectants and soap" to housing units, but do not identify the frequency or quantity of supplies that are provided to detainees, much less high-risk detainees. (See ICE PRR at 7, 9 ("all detention facilities housing ICE detainees must ... [p]rovide detainees and staff no-cost, unlimited access to supplies for hand cleansing, including liquid soap, running water, hand drying machines or disposable paper towels" and "provide and restock hygiene supplies throughout the facility") (emphasis in original).) "Encouraging" detainees to use "[sanitation] tools often and liberally" is not a reasonable preventative or remedial measure unless Respondents provide detainees with frequent and liberal access to those supplies. In the absence of any statement or evidence controverting Petitioner's accounts, see supra , the record supports the inference that Respondents have not done so.
Third, Respondents have not identified any measures they have taken in EDC involving PPE or cloth face coverings to protect high-risk detainees from contagious detainees and staff. In fact, Respondents point to no requirement that masks of any kind be provided to detainees or staff or that masks be worn by staff when interacting with high-risk detainees. (Cf. ICE PRR at 8-9 ("Cloth face coverings should be worn by detainees and staff (when PPE supply is limited) to help slow the spread of COVID-19").)
4. Causation
Despite knowledge of the serious risks posed to vulnerable detainees by COVID-19, and knowledge of Petitioner's high-risk medical condition, Respondents have not implemented recommended or required measures through which Petitioner could maintain a safe distance from other detainees who may or may not be contagious; measures that would provide Petitioner with the ability to adequately clean and disinfect herself and her immediate surroundings if exposed; measures that would provide Petitioner with the means to protect herself from exposure during her interactions with staff; or measures that would allow Petitioner to seek medical care without risking exposure. Respondents do not claim that measures facilitating social distancing, hygiene, self-protection, and medical care are unreasonable or unnecessary for preventing and managing transmission of COVID-19. Nor do Respondents claim that such measures are not feasible or that they are incompatible with EDC operations.
By failing to take these recommended, reasonable, and available measures, Respondents have fostered conditions that pose an objectively unreasonable risk of transmission of COVID-19 and a resulting substantial risk of serious harm to Petitioner's health and ultimate safety. While Respondents may have legitimate objectives for detaining Petitioner, they have identified no single legitimate purpose served by detaining Petitioner under conditions that pose an objectively unreasonable risk of harm to her. That is because these conditions serve no legitimate government objective. The conditions under which Petitioner is detained therefore amount to punishment and violate the Due Process Clause of the Fifth Amendment.
D. Relief
Petitioner has not demonstrated at this stage that she is entitled to immediate release because there is no set of conditions that would be sufficient to protect her constitutional rights. The Court therefore concludes, at this time , that the appropriate remedy is to require Respondents to immediately place Petitioner under constitutionally adequate conditions. SeeZiglar , 137 S. Ct. at 1863 ("A successful habeas petition would have required officials to place respondents in less-restrictive conditions immediately"); Preiser , 411 U.S. at 499, 93 S.Ct. 1827 ("it is arguable that habeas corpus will lie to remove the restraints making custody illegal").
Petitioner has filed a notice and motion regarding proposed measures in which she requests that, in the alternative to ordering her immediate release, the Court issue an order concerning the conditions of her detention like that issued in Urdaneta v. Keeton , No. CV-20-00654-PHX-SPL (JFM), 2020 WL 2319980 (D. Ariz. May 11, 2020), but with the addition of the following conditions: (1) "EDC must provide Petitioner with sufficient and timely refills of her asthma medication, including refills for her inhaler"; (2) "EDC must provide additional blankets to Petitioner to keep her warm and prevent triggering asthma attacks"; (3) "EDC must conduct daily nasal swab testing of all staff and vendors entering Eloy Detention Center for COVID-19"; (4) "EDC must also conduct regular facility-wide comprehensive testing of all detainees and staff to determine if any detainees are asymptomatic carriers of the virus"; and (5) "Respondents shall require that all staff, court staff, attorneys, and detainees wear masks when interacting or sharing a common space with Petitioner when she is transported to, or attends, immigration court hearings in the adjacent immigration court facility." (Doc. 37.) Insofar as Petitioner seeks facility-wide comprehensive testing, the motion is denied because such relief extends beyond the scope of the claims presented in this case. However, to the extent that Petitioner seeks additional individualized safeguards, the motion will be granted in part as set forth below.
IT IS ORDERED:
(1) The Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 and Complaint for Injunctive and Declaratory Relief (Doc. 1) and Motion Regarding Proposed Measures (Doc. 37) are granted in part as to Petitioner Perla Beatriz Gutierrez-Lopez (A# 024-496-211) as follows:
(a) Respondents shall place Petitioner in a well-ventilated cell without a roommate. Absent Petitioner's consent, and confirmation of her consent by Petitioner's counsel, Petitioner shall not be housed in administrative segregation, protective custody, or any other form of solitary confinement unless it is immediately necessary for medical isolation.
(b) Respondents shall provide Petitioner with access to a reasonably unlimited and free supply of personal protective equipment ("PPE"), including masks and gloves; alcohol-based hand sanitizer containing at least 60% alcohol;
liquid hand soap; shampoo; hot water; paper towels; and CDC-recommended disinfectant cleaner.
(c) Respondents shall require that any and all detention staff, government staff, legal representatives, and detainees wear masks when interacting or sharing any common space with Petitioner.
(d) Respondents shall have Petitioner's meals, hygiene and disinfectant supplies, and other basic necessities, including medications and laundry, delivered to Petitioner's cell.
(e) Respondents shall provide Petitioner with regular, adequate, and sanitary accommodations to shower in isolation.
(f) Respondents shall provide Petitioner with regular, adequate, and sanitary access to common rooms, outdoor recreation, and telephones, and must limit the number of detainees in such areas so that Petitioner can maintain at least six feet of distance from others.
(g) Respondents shall provide Petitioner with daily scheduled medical examinations at which: (i) treatment of Petitioner's underlying medical condition is reviewed and Petitioner is provided with any prescribed medications and/or necessary refills; (ii) Petitioner's temperature is taken; and (iii) Petitioner is screened for CDC-recognized COVID-19 symptoms, which currently include: cough, shortness of breath, fever, chills, muscle pain, sore throat, loss of taste or smell, and gastrointestinal issues (nausea, vomiting, or diarrhea). If Petitioner exhibits any of these symptoms, Respondents must promptly administer a COVID-19 test to Petitioner and provide Petitioner's counsel with notice and the test results. Should Petitioner require further treatment or medical care, Respondents must maintain open communication with Petitioner's counsel and provide counsel with reasonable status updates.
(2) Respondents must file a "Notice of Compliance" no later than May 28, 2020 confirming that they have executed and complied with the requirements set forth in this Order, or must show cause by such time why Petitioner should not be immediately released from custody due to their failure to comply with this Order.
(3) The parties shall meet and confer (in person, telephonically, or electronically) and must file a joint status report no later than June 4, 2020 . Thereafter, the parties shall meet and confer (in person, telephonically, or electronically) and must file a joint status report every 14 days , unless otherwise ordered by this Court.
(4) Petitioner must promptly file a "Notice of Change in Status" if there is any material change in Petitioner's custody status, or if there is a change in circumstances warranting the dissolution of this Order.
(5) The Application for Temporary Restraining Order and Order to Show Cause Regarding Preliminary Injunction (Docs. 2-3) and Motion for Status Conference (Doc. 38) are denied without prejudice as moot .