Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robson Xavier Gomes
v. Civil No. 20-cv-453-LM
Opinion No. 2020 DNH 111
US Department of Homeland Security,
Acting Secretary et al.
O R D E R
In this case, a group of detainees being held by
Immigration and Customs Enforcement (“ICE”) at the Strafford
County House of Corrections (“SCHOC”) challenge their
confinement in light of the COVID-19 pandemic. Petitioners
filed a petition for writ of habeas corpus and class complaint
(doc. no. 5) alleging that respondents have acted with
deliberate indifference by subjecting them to a substantial risk
of severe injury or death from COVID-19. Petitioners seek
declaratory and injunctive relief, including release.
In a prior order, the court found that detainees with
medical conditions placing them in a high-risk category with
respect to COVID-19 are entitled to bail hearings. See Doc. no.
123. The court left open the question whether detainees without
such medical conditions (“lower-risk” detainees) are also
entitled to bail hearings. This order answers that question.
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LEGAL STANDARD
As the court has held, a habeas petitioner is entitled to a
bail hearing if he demonstrates a substantial claim of
constitutional error and extraordinary circumstances exist that
make the grant of bail necessary to make the habeas remedy
effective. See Mapp v. Reno, 241 F.3d 221, 230 (2d Cir. 2001));
Glynn v. Donnelly, 470 F.2d 95, 98 (1st Cir. 1972). A habeas
petitioner demonstrates that he has a substantial claim of
constitutional error by showing he is likely to succeed on the
merits of his habeas petition.
BACKGROUND
In its May 14 Order, the court summarized the relevant
facts and procedural history in this case. Doc. no. 123. The
court assumes the reader is familiar with that history.
In that order, the court concluded after a day-long
evidentiary hearing on May 1 that it was a close call whether
lower-risk detainees were likely to prevail on their
constitutional claims, especially given the absence of any
reported COVID-19 cases within SCHOC. Doc. no. 123 at 55. The
court held that portion of its ruling in abeyance and scheduled
a further evidentiary hearing for May 29. The court instructed
the parties to address specific questions about respondents’
measures to reduce the risk of COVID-19 entering and spreading
at SCHOC. The court also ordered the parties to immediately
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notify the court if anyone at SCHOC tested positive for COVID-
19.
The next day, on May 15, an asymptomatic member of SCHOC’s
medical administration staff tested positive for COVID-19. She
was tested as part of a Strafford County initiative which
provided monetary incentives for county employees who agreed to
receive a COVID-19 test. The staff member stayed out of work
until she tested negative on two subsequent COVID-19 tests.
On May 16, an ICE detainee who had been transferred from
another ICE detention facility two days prior tested positive
for COVID-19. This detainee exhibited mild COVID-19 symptoms at
intake and was immediately isolated and tested.
On May 19, a second ICE detainee tested positive for COVID-
19. The second detainee entered SCHOC on May 14 after being
arrested in Connecticut. He did not exhibit COVID-19 symptoms
at intake but was tested at a hospital when he was admitted for
diabetes management. SCHOC isolated the five individuals who
had been exposed to the second detainee and administered
COVID-19 tests, none of which came back positive. No additional
staff members, detainees, or inmates have subsequently tested
positive for COVID-19; however, testing has been limited.1
1 Based on information contained in respondents’ weekly
status reports, fifteen COVID-19 tests have been administered to
detainees at SCHOC between May 14 and June 3, no tests were
administered from June 3 to June 24, and five tests were
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The court held its second evidentiary hearing about the
conditions of confinement at SCHOC over two days on May 29 and
June 1. Four witnesses testified at this hearing: Jairo Ruben
Hernandez, an ICE detainee at SCHOC; Alan Greenbaum, an
Assistant Field Office Director for ICE; Christopher Brackett,
Superintendent at SCHOC; and Tracy Warren, Medical Administrator
at SCHOC. Based on the evidence adduced at both evidentiary
hearings and the arguments in the parties’ pleadings, the court
concludes that lower-risk detainees have not demonstrated that
they are likely to succeed on their claims. They are not
entitled, therefore, to bail hearings pending a ruling on the
merits of their claims.
DISCUSSION
In its May 14 Order, the court laid out the two standards
that could apply to petitioners’ deliberate indifference claims.
One is the standard applied when the plaintiff is a convicted
prisoner: government officials violate the Eighth Amendment if
they act “with deliberate indifference to a substantial risk of
serious harm to health.” Coscia v. Town of Pembroke, 659 F.3d
37, 39 (1st Cir. 2011); accord Farmer v. Brennan, 511 U.S. 825,
835 (1994); see also Leite v. Bergeron, 911 F.3d 47, 52 (1st
Cir. 2018). This standard has a subjective component; to
administered from June 24 to July 1, 2020. Doc. nos. 151, 171,
185, 192, 205, 208, 216.
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satisfy it, the petitioners “must provide evidence that the
[respondent] had actual knowledge of impending harm, easily
preventable, and yet failed to take the steps that would have
easily prevented that harm.” Zingg v. Groblewski, 907 F.3d 630,
635 (1st Cir. 2018) (quotation marks and citation omitted). The
requisite mental state is said to be “characterized by obduracy
and wantonness, not inadvertence or error in good faith,” and
“has been likened to ... criminal recklessness.” Leite, 911 F.3d
at 52-53 (quotation marks omitted).
A second possible standard emerges from the Supreme Court’s
opinion in Kingsley v. Hendrickson, where the Court concluded
that “the appropriate standard for a pretrial detainee’s
excessive force claim is solely an objective one.” Kingsley,
576 U.S. 389, 397-98 (2015). Since Kingsley, some courts have
applied an objective standard outside of the excessive force
context and have concluded that a civil detainee can establish a
due process violation for unconstitutional conditions of
confinement by showing that a government official “recklessly
failed to act with reasonable care to mitigate the risk that the
condition posed to the [civil] detainee even though the
defendant-official knew, or should have known, that the
condition posed an excessive risk to the plaintiff’s health or
safety.” Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019)
(emphasis in original, internal quotation marks and alterations
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omitted); see also Banks v. Booth, No. CV 20-849(CKK), 2020 WL
1914896, at *5 (D.D.C. Apr. 19, 2020) (holding a civil detainee
“need only show that prison conditions are objectively
unreasonable in order to state a claim under the due process
clause”); Estate of Vallina v. Cty. of Teller Sheriff’s Office,
757 F. App'x 643, 646 (10th Cir. 2018) (noting that Second,
Seventh, and Ninth Circuits have “adopted an objective test”
requiring “reckless disregard,” while the Fifth, Eighth, and
Eleventh Circuits have held that Kingsley does not extend to
detainee medical care claims).
The First Circuit has yet to address whether Kingsley’s
objective test is limited to excessive force claims or applies
to other due process claims brought by civil detainees.
District courts within the First Circuit have reached different
conclusions on this question. See doc. no. 123 at 33-35
(collecting cases), see also Baez v. Moniz, No. CV 20-10753-LTS,
2020 WL 2527865, at *7 (D. Mass. May 18, 2020) (concluding
pretrial detainees had to show subjective deliberate
indifference); Yanes v. Martin, No. 120CV00216MSMPAS, 2020 WL
3047515, at *2 n.3 (D.R.I. June 2, 2020) (concluding Kingsley
did away with the need for civil detainees to show “the
subjective state of mind that is a hallmark of the ‘deliberate
indifference’ or ‘reckless disregard’ formulations”).
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The court need not resolve this question because even
applying an “objective reasonableness” test, the lower-risk
petitioners have not met their burden. The court reaches this
conclusion despite the lack of any meaningful dispute that
COVID-19 presents a substantial risk of serious harm to the
health of even lower-risk detainees, as it does members of the
society at large. See doc. no. 123 at 50-51; Baez, 2020 WL
2527865, at *7. Although “the harm of a COVID-19 infection will
generally be more serious for some petitioners than for others”
it “cannot be denied that the virus is gravely dangerous to all
of us.” Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844,
at *7 (D. Mass. Apr. 8, 2020). A study from the CDC showed that
even in patients between ages 19-64 with no underlying health
conditions, the total hospitalization rate was 8-8.7%.2 In a
different CDC study of hospitalized COVID-19 patients, 26% had
no high-risk factors and—of that subpopulation—23% received ICU
care and 5% died.3
2 Nancy Chow et al., CDC, COVID-19 Response Team,
Preliminary Estimates of the Prevalence of Selected Underlying
Health Conditions Among Patients with Coronavirus Disease 2019 —
United States, February 12–March 28, 2020, 69 Morbidity &
Mortality Weekly Report 382, 382-84 (Apr. 3, 2020),
https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6913e2-H.pdf.
(last accessed July 1, 2020).
3 JA Gold et al., CDC, Characteristics and Clinical Outcomes
of Adult Patients Hospitalized with COVID-19 — Georgia, March
2020, 69 Morbidity & Mortality Weekly Report 545, 545-50 (May 8,
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Nor is there a meaningful dispute that respondents knew or
should have known that COVID-19 presents a substantial risk,
especially within detention facilities: many state and federal
agencies have “bombarded the public and institutions with
warnings.” Yanes, 2020 WL 3047515, at *2 n.3; see also doc. no.
123 at 50-51. The question is whether petitioners have carried
their burden and demonstrated that—with regard to lower-risk
detainees—they are likely to succeed on their claim that
conditions at SCHOC remain objectively unreasonable. See Yanes,
2020 WL 3047515, at *2, Banks, 2020 WL 1914896, at *5. While
the respondents’ approach to reducing the risks of COVID-19 has
not been flawless, it has been, on balance, objectively
reasonable. The court begins by summarizing the steps
respondents have taken to reduce the risk of COVID-19.
1. Measures respondents have taken to reduce the risk of
COVID-19
As the court detailed in its May 14 order, SCHOC, like many
other facilities, has modified its conditions of confinement in
light of the risks presented by COVID-19. Doc. no. 123 at 15-
25. During the most recent evidentiary hearing (May 29 and June
1), the court received additional evidence about SCHOC’s ongoing
response to COVID-19. This evidence is pertinent to three broad
2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6918e1-
H.pdf. (last accessed July 1, 2020).
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categories of risk COVID-19 creates in a congregate living
setting such as SCHOC: the risk the virus will be brought into
the facility; the risk the virus will spread within SCHOC once
there; and the risk that COVID-19 is present, but undetected,
within the facility.
A. Steps to prevent virus from entering SCHOC
Respondents have taken several steps to reduce the risk
that individuals with COVID-19 will enter the facility. In
March, SCHOC suspended in-person visitation except for
professional visits by clergy and attorneys. The number of
professional visits has also drastically decreased.
Superintendent Brackett testified that in 2019, from March 13 to
May 25, approximately 350 professional visits took place;
whereas, in 2020 there were only 14 professional visits over the
same time period. Doc. no. 194 at 10. SCHOC staff and
professionals who enter the facility are subjected to a
screening process that includes questions about health symptoms,
exposure to COVID-19, and a temperature check. Id. at 10, 103.
SCHOC requires staff and professional visitors to wear masks
within the facility. Id. Inmates or detainees entering SCHOC
are screened for symptoms, and then held in a quarantine unit
for fourteen days before entering the general population. Any
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detainee who leaves SCHOC for a medical or court appointment is
also quarantined upon return to the facility.
On May 20, Superintendent Brackett emailed Alan Greenbaum
requesting that ICE stop transferring detainees into SCHOC from
facilities with known cases of COVID-19. Resp. Ex. P. Alan
Greenbaum subsequently decided to stop all transfers into SCHOC
from all other ICE detention facilities. Doc. no. 193 at 107-
08, 175-76. Currently, the only way a new detainee enters SCHOC
is if the detainee is arrested in the community and ICE elects
to house him or her at SCHOC. Id. Because ICE has elected to
reduce enforcement actions in light of the COVID-19 pandemic,
fewer individuals are being taken into custody. According to
ICE’s daily apprehension log, 70% fewer individuals have been
taken into custody within the Boston area of responsibility from
March through May 2020 compared to the same time period in 2019.
Resp. Ex. C.
B. Steps to reduce risk of virus spreading within SCHOC
Respondents have also taken meaningful steps to control and
militate against the spread of COVID-19 within SCHOC.
Respondents did not allow the staff member who tested positive
for COVID-19 to return to work until after multiple tests came
back negative. SCHOC’s intake screening process, which includes
isolating and testing symptomatic individuals, prevented
additional detainees from being exposed to the detainee who
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exhibited mild COVID-19 symptoms at intake and ultimately tested
positive. Although the second detainee did not exhibit symptoms
of COVID-19 at intake, SCHOC’s practice of limiting a new
detainee’s contact to others during intake meant that only five
additional detainees and inmates were exposed. After the second
detainee tested positive for COVID-19, SCHOC was able through
contact tracing to quickly identify the five detainees. The five
detainees were isolated and tested. Over the last month, no
additional staff members or detainees have tested positive for
COVID-19.4
In addition, the overall population at SCHOC is well below
capacity. As of July 1, the average weekly population at
Stafford County was 305, approximately 62% of its maximum 495-
inmate capacity, and a reduction from the 320 inmates detained
at SCHOC as of April 30. See doc. nos. 208 at 2; 40 at 4; 123
at 14. All detainees and staff members have received face masks
and SCHOC policy requires staff to wear masks at all times when
interacting with detainees. Although some inmates leave their
4 While it is good that no additional staff members or
detainees have tested positive since May 19, it appears that
testing of both groups has been limited. Respondents’ status
reports state no detainees have been tested since June 3. Given
SCHOC’s screening protocols for employees and testing protocols
for symptomatic detainees, the court interprets the lack of
positive COVID-19 tests as an indicator that there have been no
symptomatic cases of COVID-19 at SCHOC since May 19.
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housing unit to work in other parts of the jail, such as in the
kitchen or at the jail industries building—where inmates can
participate in a skill-building program—these detainees must
wear masks when outside their assigned unit. Doc. no. 194 at
16. These detainees also all live in the same unit at SCHOC,
Unit J. Doc. no. 194 at 13-14. The decision to house all
detainees who work outside their housing units together reduces
the risk that detainees from multiple units will come into
contact with one another and spread COVID-19 throughout the
facility.
Under the SCHOC lockdown policy, see doc. 123 at 16-17, the
number of detainees out of their cells on “tier time” at any one
time is limited. This reduces detainee interactions and
decreases the risk that someone with COVID-19 will spread the
infection to others within the unit. Detainees clean the common
area before a new group of detainees are released on tier time.
Doc. no. 193 at 16-17. SCHOC has recently improved its cleaning
procedures, and cleaning and hygiene supplies are available to
all detainees. Doc. no. 123 at 19; 194 at 16-17.
C. Steps to reduce risk that the virus is present but
undetected
Finally, a number of steps have been implemented at SCHOC
to identify staff and detainees who may be infected with COVID-
19. In May, Stafford County incentivized county employees to be
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tested for COVID-19. Fifty-two percent of SCHOC’s correction
officers and 65% of its medical staff elected to be tested.
Doc. no. 194 at 31. It was through this testing that the
asymptomatic staff member was identified as COVID-19 positive.
With regard to detainees, those who have been at SCHOC for fewer
than 14 days are quarantined, and staff members check them for
heightened temperature and conduct a risk-factor screening test
twice a day. Doc. no. 194 at 95. For detainees not on
quarantine, SCHOC conducts a temperature screening every two or
three weeks. Doc. no. 193 at 12, 123 at 19.
Having summarized the positive steps taken at SCHOC to
protect detainees, the court next examines the deficiencies that
remain.
2. Remaining Deficiencies within SCHOC
Respondents’ efforts to reduce the risk of COVID-19 at
SCHOC have not been flawless. ICE detainees at SCHOC, unlike
ICE detainees at other facilities in New England, are
quarantined and housed together with inmates who are awaiting
trial after having been charged with crimes (“pretrial
detainees”) and convicted inmates serving their sentences at
SCHOC. Although ICE has stopped transferring ICE detainees from
other ICE facilities, there was no evidence that SCHOC has
prohibited or limited transfers of pretrial detainees or
convicted inmates. Nor was there any evidence about whether
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fewer individuals are being charged with crimes, arrested, or
detained due to the pandemic. Accordingly, even though the
number of ICE detainees at SCHOC is likely to decrease, the
overall population at SCHOC may remain unchanged or go up
depending on the number of pretrial detainees and convicted
inmates who enter the facility.
ICE detainees also remain unable to physically separate
themselves from one another due to the size and layout of
detention cells and the barracks-style unit. Although
respondents have attempted to limit interaction between detained
individuals by limiting the number of people released from their
cells for “tier time,” on occasion, more people have been out of
their cells at the same time than intended. Doc. nos. 193 at
34; 194 at 19.5 And, although it is difficult for detainees to
remain physically separated while in their unit, SCHOC does not
require them to wear a mask. Doc. no. 194 at 16.
Mask wearing within the facility by both inmates and staff
members has also been inconsistent. On May 29, a detainee
testified that although he had received a mask a month prior, he
had not received instructions about how or when to wear the
mask, had not seen detainees wearing masks at SCHOC, and did not
5 Superintendent Brackett testified about an occasion where
staff were disciplined after a lapse resulted in more than
twelve inmates being out of their cells at the same time. Doc.
no. 194 at 19-20.
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know he could ask for a replacement mask when his became soiled.
Doc. no. 193 at 21-22. He also testified that at times, he had
observed employees and a visiting chaplain removing their masks
near detainees. Id. at 23, 25-26, 32-33. Superintendent
Brackett also testified that he has observed staff wearing masks
improperly. Doc. no. 194 at 45.
Respondents have attempted to educate detainees about
COVID-19 through signs and educational material on detainee
tablets. However, a detainee testified that he had not seen
signs indicating detainees should sleep head to toe in order to
reduce the risk of COVID-19 and was unable to access the
information about COVID-19 on his tablet. Doc. no. 193 at 26,
30.
With regard to cleaning, although respondents have made
efforts to improve procedures at SCHOC, some of the detainees
who clean common spaces in the unit have not received training,
doc. no. 193 at 19, and the common showers remain “dirty” and
are only cleaned once a day. Id. at 20-21; see also doc. no.
194 at 18-19 (Superintendent Brackett acknowledged that showers
are moldy and that SCHOC was taking steps to try to address the
situation).
While policies are in place to confine inmates to
particular units, the facility does not keep officers assigned
to consistent locations within the facility. This practice is
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inconsistent with the CDC interim guidance and a CDC Detention
Report, which encourage facilities to “[a]ssign staff members to
consistent locations” in order to prevent spread of COVID-19
within the facility. See Resp. Ex. E; CDC, Megan Wallace et al,
COVID-19 in Correctional and Detention Facilities- United
States, February-April 2020, 69 Morbidity & Mortality Weekly
Report 587, 587-90 (May 15, 2020).6
A major shortcoming at SCHOC is that testing is not
required for asymptomatic employees. Given that SCHOC does not
restrict employees to particular units, its failure to test all
employees could potentially cause asymptomatic carriers to
spread the virus within the facility.
In addition, testing of asymptomatic inmates for COVID-19
is nonexistent. For example, ICE detainees, pretrial detainees,
and criminal inmates entering SCHOC are not tested for COVID-19.
Moreover, although CDC guidance instructs, “[i]f at all
possible, do not add more individuals to an existing quarantine
cohort after the 14-day quarantine clock has started,”
Superintendent Brackett testified he is unable to follow this
guidance due to “design constraints of the facility.”7 Doc. no.
6 Available at: https://www.cdc.gov/mmwr/volumes/
69/wr/pdfs/mm6919e1-H.pdf. (last accessed July 1, 2020).
7 Superintendent Brackett testified that he attempts to
house individuals in single cells during quarantine when
possible. Doc. no. 115 at 49-50. If SCHOC needs to put two
individuals in the same cell, Superintended Brackett attempts to
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116 at 20; Resp. Ex. 5 at 20 from May 1, 2020 hearing.
Therefore, an individual entering the facility with asymptomatic
COVID-19 could infect other quarantined inmates who may be
reaching the end of their quarantine period. So long as these
individuals remained asymptomatic, they would be released from
quarantine to the general population at SCHOC without additional
testing. This is one way in which COVID-19 could spread
throughout SCHOC.
At the May 29 evidentiary hearing, Alan Greenbaum testified
that ICE was not testing asymptomatic detainees because
widespread testing of asymptomatic individuals was “not
recommended by the CDC.” See doc. no. 193 at 144, 179-80, 183;
see also Resp. Ex. JJ. However, on June 13, 2020, the CDC
reversed course and issued new guidance recommending “testing
for asymptomatic individuals” in “correctional and detention
facilities.” CDC, Overview of Testing for SARS-CoV-2, (revised
June 13, 2020) https://www.cdc.gov/coronavirus/2019-
ncov/hcp/testingoverview.html (last accessed July 1, 2020).
This new CDC guidance8 states:
Certain settings can experience rapid spread of SARS-
CoV-2, resulting in substantial adverse effects. This
“double people up in close conjunction with those that have been
brought in and incarcerated at the same time.” Id.
8 The CDC Guidance refers to SARS-CoV-2. To be clear, SARS-
CoV-2 is the virus that causes the disease commonly referred to
as “COVID-19.” In this order, the court uses the term COVID-19
broadly, to be inclusive of both the virus and the disease.
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is particularly true for settings that house
vulnerable populations in close quarters for extended
periods of time (e.g., long-term care facilities,
correctional and detention facilities) and/or settings
where critical infrastructure workers (e.g.,
healthcare personnel, first responders) may be
disproportionately affected.
A strategy aimed at reducing introduction of SARS-CoV-
2 into the setting through early identification could
reduce the risk of widespread transmission in these
situations.
Facilities are encouraged to work with local,
territorial, and state health departments to help
inform decision-making about broad-based testing.
Before testing large numbers of asymptomatic
individuals without known or suspected exposure, the
facility should have a plan in place for how it will
modify operations based on test results.
Approaches for early identification of asymptomatic
individuals include:
• Initial testing of everyone residing and/or working
in the setting,
• Regular (e.g., weekly) testing of everyone residing
and/or working in the setting, and
• Testing of new entrants into the setting and/or
those re-entering after a prolonged absence (e.g.,
one or more days)
At the May 1 evidentiary hearing, Superintendent Brackett
testified that he considered CDC guidance about responding to
the risk of COVID-19 in detention facilities to be his “bible”
as he “tried to navigate proper operation of the facility.”
Doc. no. 115 at 96. Now that the CDC has issued new guidance
recommending testing of asymptomatic staff and inmates in
detention facilities, the court is confident that respondents
will rely on the updated CDC recommendations to develop new
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testing protocols. This is especially true where testing
availability in New Hampshire has “expanded to anyone in NH who
wants a test.” See New Hampshire Department of Health and Human
Services, Testing Guidance, https://www.nh.gov/covid19/
resources-guidance/testing-guidance.htm (last visited July 1,
2020).
3. Lower-risk detainees have not demonstrated that they are
likely to succeed
Having carefully considered respondents’ approach to
reducing the risks associated with COVID-19 at SCHOC and having
weighed the totality of the facts in the record at this early
stage, the court is not persuaded that petitioners are likely to
show that respondents have “recklessly failed to act with
reasonable care” in response to substantial health risks.
Charles, 925 F.3d at 87 (emphasis in original, internal
quotation marks omitted). Although respondents’ measures to
reduce the risk of COVID-19 within SCHOC have been imperfect,
petitioners have not demonstrated that respondents recklessly
failed to act with reasonable care to mitigate the risk COVID-19
presents to lower-risk detainees at SCHOC. See id.
Other courts have reached the same conclusion considering
claims and facts similar to those present here. For example, in
C.G.B. v. Wolf, the court concluded that detainees who did not
have a medical condition that put them at high-risk from COVID-
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19 had failed to establish a likelihood of success on the merits
where detention facilities were substantially complying with
ICE’s COVID-19 Pandemic Response Requirements. C.G.B. v. Wolf,
No. 20-CV-1072 (CRC), 2020 WL 2935111, at *25 (D.D.C. June 2,
2020). Courts have also reached this conclusion under the
Eighth Amendment deliberate indifference standard. See Baez,
2020 WL 2527865, at *7, n.8 (finding standard not met where
detention facility had adopted many measures and policies to
reduce risk of COVID-19); Awshana v. Adducci, No. 20-10699, 2020
WL 1808906, at *14 (E.D. Mich. Apr. 9, 2020) (finding standard
not met where petitioners were lower-risk, facility had followed
CDC guidance to reduce the risk of COVID-19, and no detainees or
staff had tested positive).
In contrast, those courts that have found the post-Kingsley
standard met by lower-risk detainees have involved more
egregious facts. See Ahlman v. Barnes, No. SACV20835JGBSHKX,
2020 WL 2754938, at *12 (C.D. Cal. May 26, 2020) (finding post-
Kingsley standard met where rates of COVID-19 were
“skyrocketing” and 369 inmates had tested positive for COVID-
19); Zepeda Rivas v. Jennings, No. 20-CV-02731-VC, 2020 WL
2059848, at *2, n.6 (N.D. Cal. Apr. 29, 2020) (finding post-
Kingsley standard met where ICE had only recently begun taking
“modest measures” and respondents had yet to identify detainees
with health vulnerabilities).
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A critical factor driving the court’s conclusion is the
court’s confidence in Superintendent Brackett, who testified at
both evidentiary hearings. Superintendent Brackett is credible;
he is willing to admit the flaws and does not exaggerate the
successes in his approach. He is devoted to the cause of keeping
those in his custody safe; he reads the guidance from the CDC
and makes decisions based on that guidance. While the court
wishes Superintendent Brackett had not deferred to others on the
question of how best to protect the high-risk detainees,
petitioners have not demonstrated that respondents’ approach to
lower-risk detainees is—on balance—objectively unreasonable.
For all these reasons, the court denies petitioners’
request to grant lower-risk detainees bail hearings pending a
ruling on the merits.
CONCLUSION
For the foregoing reasons, petitioners’ motion for
expedited bail hearings (doc. no. 9) is denied with regard to
lower-risk detainees.
Several motions remain pending before the court:
petitioners’ amended petition for writ of habeas corpus and
class complaint (doc. no. 5); petitioners’ motion for a
preliminary injunction (doc. no. 7); and petitioners’ motion to
certify the class (doc. no. 14). Since petitioners filed these
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motions in April, there have been significant factual and
procedural developments in this case. Therefore, the court
gives the parties until July 15 to supplement their pleadings to
address subsequent developments. The court invites the parties
to address whether petitioners’ motion for a preliminary
injunction (doc. no. 7) has been mooted by respondents’ decision
to stop transfers from other ICE detention facilities. The
parties may also supplement their class certification pleadings.
Finally, the court orders the parties to file a status report on
or before July 15, stating their joint or separate positions
regarding how, and on what schedule, this matter should proceed
on the merits.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
July 1, 2020
cc: Counsel of Record.
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