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June 13, 2019

Gayle v. Meade Order

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
OMNIBUS ORDER 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. Case 1:20-cv-21553-MGC Document 158 Entered on FLSD Docket 06/06/2020 Page 1 of 40 2 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, 341 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”)2 . 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. 1 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. 2 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). Case 1:20-cv-21553-MGC Document 158 Entered on FLSD Docket 06/06/2020 Page 2 of 40 3 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 declarations3 : 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).4 2. Declaration of Liana J. Castano, Acting Officer in Charge of the Krome Service Processing Center. (“Castano Declaration,” ECF No. 33-1). 5 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 hearing6 and subsequently issued a 69-page report and recommendation (“R&R”) on the TRO concluding 3 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. 4 The Vega Declaration discussed BTC. 5 The Castano Declaration discussed Krome and Glades. 6 All hearings in this matter have been conducted via remote video conference in light of the danger posed by COVID-19. Case 1:20-cv-21553-MGC Document 158 Entered on FLSD Docket 06/06/2020 Page 3 of 40 4 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.) 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.)7 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 7 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). Case 1:20-cv-21553-MGC Document 158 Entered on FLSD Docket 06/06/2020 Page 4 of 40 5 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 Ferrera 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.8 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 100,0009 people have died from COVID-19 in America. 10 And at least two individuals have died in ICE custody due to COVID-19. 11 Some experts estimate that up to 400,000 Americans may die from COVID-19 in approximately one year. 12 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 8 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. 9 Johns Hopkins University Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html (last updated June 5, 2020, 12:00 p.m. EST). 10 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.) 11 https://www.ice.gov/coronavirus. 12https://abcnews.go.com/amp/Health/coronavirus-updates-us-100-million-doses-vaccineend/story?id=71038663. Case 1:20-cv-21553-MGC Document 158 Entered on FLSD Docket 06/06/2020 Page 5 of 40 6 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), asymptomatic13 (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.) 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 years14 dying after contracting the virus. There have also been reports of adults in the 20-40 age bracket being severely affected by the virus.15 (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.16 Studies show that even where people recover from COVID-19, they may face serious permanent complications, including lung scarring.17 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 13Recent data suggests that has almost 13% of transmission occurs from asymptomatic individuals before they start to show symptoms. (Greer Decl. ¶9.) 14 https://www.cnn.com/2020/04/21/us/detroit-girl-dies-coronavirus/index.html 15https://www.hopkinsmedicine.org/health/conditions-anddiseases/coronavirus/coronavirus-and-covid-19-younger-adults-are-at-risk-too. 16https://www.washingtonpost.com/health/2020/05/10/coronavirus-attacks-body symptoms/?arc404=true. 17https://www.sciencenews.org/article/coronavirus-covid-19-some-patients-may-sufferlasting-lung-damage.

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