Juarez et al v. Asher et al, No. 2:2020cv00700 - Document 188 (W.D. Wash. 2020)

Court Description: ORDER DENYING 175 MOTION FOR TEMPORARY RESTRAINING ORDER AND EXPEDITED BAIL HEARINGS signed by Judge James L. Robart. Respondents are ordered to submit a report to the court regarding the status of prevalence testing at NWIPC by January 4, 2020.(TF)

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Juarez et al v. Asher et al Doc. 188 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 1 of 20 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 CASE NO. C20-0700JLR-MLP 8 WILFREDO FAVELA AVENDAÑO, et al., 9 Petitioners-Plaintiffs, 10 ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND EXPEDITED BAIL HEARINGS v. 11 NATHALIE ASHER, et al., 12 Respondents-Defendants. 13 14 15 I. INTRODUCTION Before the court is Petitioners-Plaintiffs’ (“Petitioners”) second motion for a temporary 16 restraining order. (TRO (Dkt. # 175).) Respondents-Defendants (“Respondents”) oppose 17 Petitioners’ motion. (See Resp. (Dkt. # 181).) The court has reviewed Petitioners’ motion, the 18 response, the amended petition and complaint (dkt. # 167), the parties’ submissions related to the 19 motion, the relevant portions of the record, the applicable law, and heard oral argument. Being 20 fully advised, the court DENIES Petitioners’ motion. 21 22 23 ORDER – 1 Dockets.Justia.com Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 2 of 20 1 II. BACKGROUND 2 A. Procedural Background 3 Petitioners are individuals either currently or previously held in civil detention by U.S. 4 Immigration and Customs Enforcement (“ICE”) at the Northwest ICE Processing Center 5 (“NWIPC”) in Tacoma, Washington.1 (See Compl. (Dkt. # 1).) On May 8, 2020, Petitioners filed 6 their initial petition and complaint seeking a writ of habeas corpus and injunctive and declaratory 7 relief against Respondents. (See generally id.) Petitioners argued they are “vulnerable to serious 8 medical complications from COVID-19 and are at risk of serious illness and death so long as 9 they are held in detention” due to their medical conditions. (Id. at ¶ 95.) 10 On May 11, 2020, Petitioners filed a motion for a temporary restraining order seeking 11 immediate release from detention as they await adjudication of their immigration cases and a 12 motion for class certification. (Dkt. ## 22, 21.) Petitioners argued that because Respondents 13 cannot remedy the alleged grave risk of harm that they, and others similarly situated, face from 14 COVID-19, their continued detention violates their Fifth Amendment rights. (Dkt. # 22 at 13.) 15 On June 12, 2020, the Court denied Petitioners’ motion for a temporary restraining order. (Dkt. 16 # 91.) The court found Petitioners were unlikely to succeed on their claim that Respondents 17 violated their Fifth Amendment right to reasonable safety at the NWIPC. (Id. at 14-15.) The 18 Court also found Petitioners failed to make a clear showing that their continued detention 19 amounted to punishment as Respondents had taken substantial steps to prevent a COVID-19 20 outbreak, and further that Petitioners failed to establish irreparable harm. (Id. at 16-17.) 21 22 23 1 J.A.M. has been released from custody. (5/15/2020 Bostock Decl. (Dkt. #63) ¶ 79.) Respondents recently released Petitioner Wilfredo Favela Avendaño. (Dkt. # 151-1.) ORDER – 2 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 3 of 20 1 On July 16, 2020, Respondents filed a return memorandum and motion to dismiss the 2 petition. (Dkt. # 102.) The court denied Respondents’ motion and directed the parties to submit 3 proposed discovery requests, which the parties submitted, and the court has since ruled on.2 (Dkt. 4 ## 124, 161.) The court also denied Petitioners’ motion for class certification, finding Petitioners 5 failed to satisfy the requirements of Federal Rule of Civil Procedure 23(b)(2) for an indivisible, 6 uniform remedy that would provide relief to the proposed class due to the case-by-case 7 considerations needed to determine whether release is appropriate for each individual. (Dkt. # 8 121.) 9 On November 4, 2020, Petitioners moved to amend their petition, seeking to modify their 10 request for relief in response to the court’s finding regarding the uniformity requirement of Rule 11 23(b)(2) and to remove Josue Castañeda Juarez from this action because he has been released 12 from custody after succeeding in his immigration matter. (Dkt. # 132 at 4-6.) The court granted 13 Petitioners’ motion to amend (dkt. # 166) and Petitioners filed an amended petition and 14 complaint (dkt. # 167). Petitioners also filed a second motion for class certification that is 15 pending before the court. (Dkt. # 134.) The proposed class consists of all individuals detained at 16 the NWIPC who are 55 years of age or older, or have medical conditions that the Centers for 17 Disease Control (“CDC”) has determined places them at a heightened risk of severe illness or 18 death from COVID-19. (Id. at 2-3.) Petitioner filed the instant motion for a temporary restraining order on December 11, 19 20 2020, seeking release of Petitioner Khan. (See generally TRO.) Petitioners also request the court: 21 (1) grant provisional certification of the proposed class, (2) order a process to identify and 22 23 Petitioners have filed objections to the court’s order regarding the proposed discovery requests. (Dkt. # 172.) 2 ORDER – 3 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 4 of 20 1 provide expedited review of proposed class members for release, (3) order a limit to the 2 detention population to allow for social distancing, and (4) order periodic testing of detainees, 3 staff, and employees for COVID-19. (Id. at 1.) The court heard oral argument regarding 4 Petitioners’ second motion for a temporary restraining order on December 15. 2020. (Dkt. 5 # 185.) 6 As noted above, the court previously denied Petitioners’ motion for a temporary 7 restraining order. (Dkt. # 91.) Petitioners now argue that recent positive COVID-19 test results 8 from detainees and staff at NWIPC show COVID-19 has entered the general population. (TRO at 9 3.) Petitioners assert this constitutes a change in circumstances and establishes that Respondents 10 have failed to stop the spread of COVID-19 at NWIPC, and therefore their Fifth Amendment 11 right to reasonably safe conditions have been violated. (Id. at 14.) Petitioners also cite a recent 12 Ninth Circuit opinion regarding COVID-19, Hernandez Roman v. Wolf, 977 F.3d 935 (9th Cir. 13 2020), to assert they can show a likelihood of success regarding their claim. (Id. at 14.) 14 Respondents contend the circumstances from Petitioners’ previous motion for a 15 temporary restraining have not changed, and that in fact, they have implemented more robust 16 protocols in response to the evolving COVID-19 pandemic to protect both detainees and staff at 17 the NWIPC. (See generally Resp.) Respondents therefore argue Petitioners have failed to show 18 that Petitioner Khan, or proposed class members, are likely to succeed on their Fifth Amendment 19 claim or that the conditions at NWIPC are excessive in relation to a legitimate objective of 20 immigration detention. (Id.) 21 In addition to the declarations submitted in support of previous motions, the parties 22 submitted declarations in support of and in opposition to Petitioners’ instant motion. Petitioners 23 submitted the declarations of Sydney Maltese (dkt. # 176), Petitioner Khan (dkt. # 177), and Dr. ORDER – 4 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 5 of 20 1 Robert Greifinger (dkt. # 178). Respondents submitted the declarations of Dr. Sheri Malakhova 2 (dkt. # 183) and Drew Bostock (dkt. # 182). The court’s previous order details the efforts taken by Respondents in response to 3 4 COVID-19. (Dkt. # 91.) The instant order provides an overview of Respondents’ continued 5 efforts in response to the pandemic and the circumstances regarding individuals at NWIPC who 6 have recently tested positive for the virus. 7 B. Conditions at the NWIPC 8 The conditions at NWIPC are governed generally by the Performance-Based National 9 Detention Standards 2011 (“PBNDS”). (Bostock Decl. (Dkt. # 182) at ¶ 12.) In April 2020, 10 ICE’s Enforcement and Removal Operations (“ERO”) released “COVID-19 Pandemic Response 11 Requirements” (“PRR”) that provides mandatory requirements for housing detainees during the 12 current pandemic. (Id. at ¶ 13.) The PRR has been updated since the pandemic began, most 13 recently in October 2020. (Id.) The PRR also requires ICE to comply with the CDC’s “Interim 14 Guidance on Management of Coronavirus Disease 2019 in Correctional and Detention Facilities 15 and Memorandum to Detention Wardens and Superintendents on COVID-19 Action Plan 16 Revision 1.” (Id. at ¶ 17.) The PRR includes a section regarding detainees that are potentially at higher risk due to 17 18 COVID-19 or are considered vulnerable under Fraihat v. U.S. Immigration & Customs Enf’t, 19 445 F.Supp.3d 709 (C.D. Cal. 2020).3 (Id. at ¶ 75.) Specifically, ICE is required to notify a 20 detainee and counsel within 12 hours of being identified as an individual of high risk or meeting 21 22 23 On April 5, 2020, ICE implemented custody reassessment reviews based on the CDC’s criteria for individuals who are potentially at high risk due to COVID-19. (Bostock Decl. at ¶ 73.) The PRR has expanded its list of potential individuals based on the CDC’s revised criteria and criteria certified in Fraihat. (Id.) 3 ORDER – 5 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 6 of 20 1 Fraihat criteria. (Id.) NWIPC also attempts to provide medical files within five days of a request. 2 (Id.) Further, individuals who are at high risk are tested upon intake, as directed by medical 3 personnel, and upon release. (Id.) Respondents have also required temperature and verbal 4 screening for COVID-19 twice per day for individuals that are at high risk beginning December 5 14, 2020. (Id.) Staff at NWIPC are required to go through verbal and temperature checks for 6 COVID-19 before entering NWIPC. (Id. at ¶ 54.) Any individual that does not clear the 7 screening process is denied entry and those that do not follow the established protocols may be 8 disciplined. (Id.) Face masks are required for staff who are within six feet of detainees. (Id. at 9 ¶ 56.) In addition, GEO employees must wear personal protective equipment (“PPE”) when 10 11 interacting with others and while working in common areas. (Id.) Petitioners present evidence that despite these protocols, for nine days, the detainees in 12 Mr. Khan’s unit did not have their temperature taken. (Khan Decl. at ¶ 11.) Petitioners also 13 present evidence that while guards now wear masks, some guards wear only neck warmers or 14 homemade masks. (Id. at ¶ 21.) 15 1. Recent COVID-19-Positive Tests 16 There have been several individuals at the NWIPC who have recently tested positive for 17 COVID-19. On November 25, 2020, a contract pharmacy technician reported to work and did 18 not disclose that she had been tested for COVID-19 because an immediate family member had 19 tested positive for the virus. (Bostock Decl. at ¶ 97.) After learning this information, the 20 pharmacy technician was sent home and advised to quarantine and was later terminated for 21 violating safety protocols. (Id. at ¶ 98.) This pharmacy technician worked in a pharmacy room 22 with an ICE Health Service Corps (“IHSC”) pharmacist and IHSC contract pharmacy technician. 23 (Id. at ¶ 99.) These individuals did not have contact with detainees or other employees and wore ORDER – 6 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 7 of 20 1 PPE while working. (Id.) The two pharmacy staff members that worked with the contract 2 pharmacy technician were sent home and subsequently tested positive for COVID-19. (Id. at ¶ 3 100.) Neither has returned to NWIPC since November 25, 2020. (Id.) 4 On December 7, 2020, ICE learned that a former detainee who was transferred from 5 NWIPC to a detention center in Florence, Arizona, tested positive for COVID-19 upon entry to 6 the new facility. (Not. (Dkt. # 171-1) at ¶ 3; Bostock Decl. at ¶ 79.) The detainee was previously 7 housed in general population in the “A3” housing unit at NWIPC, the same housing unit that 8 Petitioner Khan was previously housed in. (Bostock Decl. at ¶ 79.) The detainee tested negative 9 for COVID-19 on November 30, 2020, and was placed in a separate housing unit designated for 10 detainees awaiting departure from NWIPC until his transfer to Arizona on December 1, 2020. 11 (Id.) Based on the detainee’s two-day travel from NWIPC to Arizona, which included travel 12 through other staging facilities, and after consulting with the Tacoma Pierce County Health 13 Department, Respondents have not reached a conclusion regarding whether the detainee had 14 COVID-19 when he was at NWIPC. (Id. at ¶ 80.) 15 Prior to this detainee’s positive test result, the A3 housing unit was cohorted because 16 another detainee complained of COVID-19 type symptoms. (Bostock Decl. at ¶ 81.) The 17 detainee was transferred to medical isolation and later tested negative for COVID-19. (Id.) 18 Detainees in the A3 housing unit continued to be cohorted and were tested for COVID-19 based 19 on the test results from the detainee transferred to the Arizona facility. (Id. at ¶ 82.) At that time, 20 there were 14 detainees in A3, which has capacity for 90 beds. (Id.) Only one detainee tested 21 positive for COVID-19. (Id. at ¶ 84.) Twelve staff members were also tested and had negative 22 test results. (Id. at ¶ 83.) The detainee who tested positive was transferred to an airborne 23 infection isolation room. (Id. at ¶ 84.) The other thirteen detainees from that housing unit who ORDER – 7 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 8 of 20 1 tested negative were provided new clothing and relocated to an unused housing unit while 2 wearing face masks. (Id. at ¶ 85.) The detainees were housed one detainee per cell. (Id.) The 3 detainee who initially tested positive for COVID-19 subsequently tested negative for the virus 4 three times.4 (Not. (Dkt. # 184-1) at ¶ 3; Not. (Dkt. # 186-1) at ¶ 3.) 5 Petitioner Khan submitted a declaration stating his housing unit was not informed that a 6 detainee had tested positive for COVID-19. (Khan Decl. at ¶ 2.) Respondents refute Petitioner 7 Khan’s assertion, arguing IHSC and GEO staff informed the detainees of the reasons for the need 8 to quarantine. (Bostock Decl. at ¶ 102.) On December 12, 2020, Petitioner Khan reported 9 experiencing a sore throat and lack of sense of taste. (Id. at ¶ 90.) He has since tested negative for 10 COVID-19. (Not. (Dkt. # 186-1) at ¶ 5.) Another detainee from the A3 unit reported 11 experiencing symptoms but has also since tested negative for COVID-19. (Id. at ¶ 4.) 12 Respondents recently submitted a notice on December 16, 2020, explaining that a GEO 13 employee tested positive for COVID-19 on December 12, 2020. (Not. (Dkt. # 187-1) at ¶ 4.) The 14 employee was a kitchen worker at NWIPC. (Id. at ¶ 6.) IHSC identified three detainees who 15 worked in the kitchen with this GEO employee who have been transferred to medical quarantine 16 and tested for COVID-19. (Id. at ¶ 8.) The detainees were not housed in A3 with Petitioner 17 Khan. (Id.) Respondents represent that IHSC will conduct prevalence testing in the housing units 18 of these detainees. (Id.) 19 Respondents also submitted notices of other positive test results of COVID-19 for 20 individuals at NWIPC. (See, e.g., Not. (Dkt. ## 87, 92, 96, 99, 100, 101, 114, 115, 116, 118, 119, 21 122, 123).) 22 23 4 Respondents conducted COVID-19 antibody tests for this detainee, which were negative. (Not. (Dkt. # 186-1) at ¶ 3.) Respondents are investigating whether it can determine if the original test was a false positive. (Id.) ORDER – 8 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 9 of 20 1 2. New Detainees 2 IHSC conducts pre-intake temperature and verbal prescreening checks for new detainees 3 to NWIPC. (Bostock Decl. at ¶ 19.) Detainees are provided a handbook that outlines hygiene 4 procedures and instructs detainees regarding how to visit the medical clinic. (Id. at ¶ 21.) NWIPC 5 also has New Intake Monitoring housing units (“NIMS”) that monitor incoming detainees for 14 6 days. (Id. at ¶ 23.) Detainees admitted on different dates, or who have different risk classification 7 levels, are housed separately. (Id.) 8 3. Social Distancing Measures 9 The NWIPC has the capacity to house 1,575 detainees. (Bostock Decl. at ¶ 7.) As of 10 December 12, 2020, it housed only 290 detainees. (Id.) Of the 21 housing units at NWIPC, two 11 units are used for the 14-day observation of new intakes, a medical housing unit, and a special 12 management unit. (Id. at ¶ 36.) Another unit is used for detainees who have been tested for 13 COVID-19 and are awaiting removal via ICE Air. (Id.) Two to three units remain empty for 14 emergency purposes, including the possibility of a COVID-19 outbreak. (Id.) The bed ratios in 15 the housing units range from 7.8% to 45.3%. (Id. at ¶ 37.) GEO implemented head to foot 16 sleeping arrangements to provide more space between detainees. (Id. at ¶ 39.) Food is delivered 17 to housing units during staggered mealtimes, and detainees are allowed to eat within common 18 rooms or their bunks. (Id. at ¶ 40.) Each housing unit has a designated time to move within the 19 facility to recreation, religious services, and the law library to prevent comingling with other 20 housing units. (Id. at ¶ 41.) 21 4. Hygiene Measures 22 Janitorial services are typically conducted by detainee workers on a voluntary basis. 23 (Bostock Decl. at ¶ 28.) Detainees who are quarantined or in medical isolation are not allowed to ORDER – 9 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 10 of 20 1 conduct these services. (Id.) A GEO Sanitation Officer is responsible for monitoring the detainee 2 workers. (Id. at ¶ 29.) In housing units where no detainees volunteer to conduct janitorial 3 services, GEO employees are responsible for providing cleaning services. (Id.) GEO maintains 4 sanitation logs regarding the cleaning services conducted multiple times a day. (Id.) GEO also 5 provides detainees and staff supplies for handwashing, including soap, water, hand drying 6 machines, disposable paper towels, and no-touch trash receptacles. (Id. at ¶ 30.) GEO has also 7 implemented enhanced measures in housing units, food preparation and service areas, and intake 8 rooms. (Id. at ¶ 29.) GEO conducts weekly town hall meetings in housing units to educate 9 detainees on hygiene. (Id. at ¶ 31.) IHSC also conducts weekly townhall meetings to educate 10 detainees about COVID-19 and how to prevent the spread of the virus. (Id. at ¶ 32.) GEO also 11 offers detainees masks three times per week. (Id. at ¶ 34.) 12 5. Visitors and Staff 13 Social visitation is temporarily suspended at NWIPC. (Bostock Decl. at ¶ 47.) Attorney 14 visits are limited to noncontact visits, however, contact visits are allowed if necessary and 15 approved by an ICE officer. (Id. at ¶ 50.) Attorneys are required to wear PPE during such visits. 16 (Id.) ICE also provides eleven rooms at NWIPC with electronic tablets to facilitate private 17 videoconferencing with detainees and counsel. (Id. at ¶ 51.) Guards are required to wear masks 18 while in common areas of NWIPC and whenever they are within six feet of detainees. (Id. at 19 ¶ 56.) However, Petitioners present evidence that guards often fail to wear masks or other PPE. 20 (Second Avendaño Decl. (Dkt. # 141) at ¶ 3; Second Khan Decl. (Dkt. # 138) at ¶ 7; Second 21 Nerheim Decl. (Dkt. # 143) at ¶¶ 7-8.) 22 \\ 23 \\ ORDER – 10 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 11 of 20 1 C. Petitioner Khan’s Detention Status 2 Mr. Khan is 48 years old, a citizen of Pakistan and a Lawful Permanent Resident of the 3 United States. (First Khan Decl. (Dkt. # 9) at ¶ 1.) He is detained and subject to removal based 4 on his violation of a domestic violence no-contact order issued by the Snohomish County District 5 Court and criminal stalking of his ex-wife. (5/17/2020 Bostock Decl. (Dkt. # 63) at ¶ 78.) An 6 Immigration Judge granted him cancellation of removal for certain residents under 8 U.S.C. 7 § 1229b(a), but DHS appealed the decision. (Id.) Petitioner Khan is held under 8 U.S.C. 8 § 1226(a) while his appeal is pending. (Id.) An Immigration Judge denied him bond based on a 9 finding that he was a danger to the community and a flight risk based on his continued violation 10 of the protective order. (Id.) If released, Mr. Khan will stay with his friend while he determines 11 his long-term living options. (TRO at 11; First Khan Decl. at ¶ 17.) Respondents determined 12 Petitioner Khan’s diabetes consisted of a chronic care condition that placed him “at heightened 13 risk of severe illness and death upon contracting the COVID-19 virus.” (Notice of Custody 14 Determination pursuant to Fraihat (Dkt. # 176-9).) 5 On December 1, 2020, ICE determined 15 continued detention was appropriate under the ERO PRR standards. (Bostock Decl. at ¶ 76.) 16 III. ANALYSIS 17 A. Legal Standard 18 The standard for issuing a TRO is the same as the standard for issuing a preliminary 19 injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 20 (1977). A TRO is “an extraordinary remedy that may only be awarded upon a clear showing that 21 the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 22 23 5 As noted above, the most recent ERO PRR includes requirements in the Fraihat order. See https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf. ORDER – 11 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 12 of 20 1 (2008). “The proper legal standard for preliminary injunctive relief requires a party to 2 demonstrate (1) ‘that he is likely to succeed on the merits, (2) that he is likely to suffer 3 irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his 4 favor, and (4) that an injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 5 1109, 1127 (9th Cir. 2009) (citing Winter, 555 U.S. at 20). 6 As an alternative to this test, a preliminary injunction is appropriate if “serious questions 7 going to the merits were raised and the balance of the hardships tips sharply in the plaintiff’s 8 favor,” thereby allowing preservation of the status quo when complex legal questions require 9 further inspection or deliberation. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134- 10 35 (9th Cir. 2011). However, the “serious questions” approach supports the court’s entry of a 11 TRO only if the plaintiff also shows that there is a likelihood of irreparable injury and that the 12 injunction is in the public interest. Id. at 1135. The moving party bears the burden of persuasion 13 and must make a clear showing that it is entitled to such relief. Winter, 555 U.S. at 22. 14 For the reasons set forth below, the court DENIES Petitioners’ second motion for a TRO. 15 B. Likelihood of Success on the Merits 16 To obtain a TRO, Petitioners must make a clear showing that they are likely to succeed 17 on the merits or, alternatively, have raised serious questions going to the merits of their habeas 18 petition. To succeed on a habeas petition, Petitioners must show that they are “in custody in 19 violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2241. 20 Here, Petitioners argue that the continued detention of Petitioner Kahn, and similarly situated 21 proposed class members in conditions that allegedly present an unreasonable risk of serious 22 23 ORDER – 12 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 13 of 20 1 illness or death, violate their Fifth Amendment substantive due process rights6 to: (1) reasonably 2 safe conditions of confinement; and (2) conditions that do not amount to punishment. (TRO at 3 13-20.) For the reasons stated below, the court concludes that Petitioners have failed to make a 4 clear showing that they are likely to succeed on the merits of their Fifth Amendment claims, or 5 that they have raised serious questions going to the merits of their claims. 6 1. Right to Reasonably Safe Conditions 7 “[W]hen the State takes a person into its custody and holds him there against his will, the 8 Constitution imposes upon it a corresponding duty to assume some responsibility for his safety 9 and general well-being.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 10 199-200 (1989).7 The government thus violates the Due Process Clause if it fails to provide civil 11 detainees with “food, clothing, shelter, medical care, and reasonable safety.” Id. at 200. In the 12 context of a “failure to protect” claim under the Due Process Clause, the Ninth Circuit analyzes 13 government conduct under an objective deliberate indifference standard. See Castro v. Cty. of 14 L.A., 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc) (adopting objective deliberate indifference 15 standard based on Kingsley v. Hendrickson, 576 U.S. 389 (2015) to evaluate failure to protect 16 claim brought by pretrial detainee). Under this standard, the defendant’s conduct “must be 17 objectively unreasonable, a test that will necessarily turn on the facts and circumstances of each 18 particular case.” Id. (internal quotations omitted). To demonstrate objective deliberate 19 indifference, a plaintiff must show: (i) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 20 21 6 22 23 As federal civil detainees, Petitioners are protected by the Fifth Amendment. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001). In DeShaney, the Supreme Court analyzed the petitioners’ rights under the Fourteenth Amendment. See 489 U.S. at 194-95. Fifth Amendment due process claims and Fourteenth Amendment due process claims are analyzed in the same way. See Paul v. Davis, 424 U.S. 693, 702 n.3 (1976). 7 ORDER – 13 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 14 of 20 1 (ii) Those conditions put the plaintiff at substantial risk of suffering serious harm; 2 4 (iii) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and 5 (iv) By not taking such measures, the defendant caused the plaintiff’s injuries. 3 6 7 Id. Petitioners argue that the positive tests of individuals at NWIPC, including detainees in 8 general population, shows Respondents have failed to provide reasonably safe conditions to 9 vulnerable detainees. (TRO at 16-17.) Petitioners cite the court’s decision in Pimentel-Estrada II, 10 that found NWIPC had inadequate testing, social distancing, and hygiene policies. (Id. (citing 11 Pimentel-Estrada v. Barr, No. C20-495-RSM-BAT, 2020 WL 2092430 (W.D. Wash. Apr. 28, 12 2020) (identifying “glaring deficiencies” in the Government’s efforts to protect high-risk 13 detainees from serious harm). Petitioners also cite the Ninth Circuit’s recent decision in 14 Hernandez Roman, in which the Ninth Circuit found the government likely failed to provide 15 reasonably safe conditions to detainees because of a lack of social distancing and inadequate 16 hygiene. Hernandez Roman v. Wolf, 977 F.3d 935 (9th Cir. 2020). Petitioners assert NWIPC 17 continues to have inadequate testing and does not follow its own COVID-19 policies, including 18 proper screening and wearing masks. (TRO at 17.) Petitioners also maintain social distancing is 19 not possible and Respondents’ hygiene and cleaning policies have been inadequate to stop the 20 spread of COVID-19 within NWIPC. (Id.) Petitioners assert Respondents have been on notice 21 about the risks to vulnerable detainees with regard to COVID-19 and have failed to take 22 adequate precautions to protect them. (Id. at 14-18.) Petitioners therefore argue Respondents are 23 ORDER – 14 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 15 of 20 1 not able to abate the substantial risk of serious harm and therefore violate Petitioners’ Due 2 Process rights.8 (Id. at 14-18.) 3 Respondents contend Petitioners have not shown that the conditions at NWIPC with 4 regard to COVID-19 are objectively unreasonable, and that to establish a constitutional violation, 5 Petitioners must show more than a potential risk of injury. (Resp. at 15-16.) Respondents also 6 argue that unlike the conditions in Hernandez Roman, ICE has reduced its population at NWIPC 7 and rearranged detainee housing to allow for social distancing. (Id. at 17-18 (citing Bostock 8 Decl. at ¶¶ 7 n.1, 36-38).) Respondents further assert guards are required to wear masks or face 9 coverings, new detainees are not commingled with the general population, and sanitation and 10 hygiene measures have been increased. (Id.) 11 Respondents also assert their testing procedures are adequate. (Resp. at 18.) Respondents 12 argue that in addition to providing voluntarily testing upon arrival, they also test detainees when 13 reassigning housing units and prior to release. (Id. (citing Bostock Decl. at ¶¶ 24, 45; Malakhova 14 Decl. at ¶ 33.) Respondents note that since November 2020, 179 tests have been conducted with 15 detainees, in addition to tests for newly arriving detainees, and all have been negative. (Id. at 18- 16 19.) Respondents also represent they are developing a Prevalence Testing Operational Plan that 17 will periodically test detainees throughout the facility. (Id. at 19.) The court finds Petitioners have not shown the circumstances at NWIPC establish they 18 19 are being denied a reasonable right to safety. As previously stated in Dawson v. Asher, “[n]o one 20 can entirely guarantee safety in the midst of a global pandemic.” No. C20-409-JLR-MAT, 2020 21 22 23 Petitioners assert that the rate of the virus in immigration facilities is “on average more than 13 times the rate among the general population.” (TRO at 4 (citing Maltese Decl., Ex. B.) Petitioners note that since the first case of a detainee testing positive for COVID-19 in immigration custody, almost 8,000 detainees have tested positive. (Id. (citing Maltese Decl., Ex. H).) 8 ORDER – 15 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 16 of 20 1 WL 1704324, at *12 (W.D. Wash. Apr. 8, 2020). Since the court’s previous ruling denying 2 Petitioners’ motion for a temporary restraining order, and since the ruling in Pimentel-Estrada, 3 Respondents have taken significant measures to prevent the spread of COVID-19. As noted 4 above, Respondents have procedures in place to review custody determinations, have plans to 5 implement further prevalence testing, and have reduced the population at NWIPC.9 The conditions in Hernandez Roman are distinguishable from NWIPC’s current 6 7 conditions of confinement. In Hernandez Roman, the Adelanto Immigration and Customs 8 Enforcement Processing Center had 58 detainees that tested positive for COVID-19, nine of 9 whom were hospitalized. 977 F.3d at 938, 940. Twenty of the detainees who tested positive were 10 medically vulnerable. Id. In addition, the Ninth Circuit found, inter alia, the facility was too 11 crowded to allow for social distancing, detainees had inadequate access to masks, guards were 12 not required to wear masks, there was a lack of cleaning supplies, detainees slept within six feet 13 of each other, new arrivals were not adequately quarantined or tested, and there were only three 14 functioning showers for 118 detainees. Id. at 943. 15 NWIPC’s current conditions present the court with different circumstances. As of 16 December 13, 2020, the detainee population was at 18.4% of NWIPC’s capacity. (Bostock Decl. 17 at ¶ 7.) Although Petitioner Khan is currently housed in an airborne infection isolation room, he 18 was previously housed in the A3 unit, which contained only 14 detainees despite the unit’s 90 19 beds, 13 tables in the common areas, seven toilets, and eight showers. (Id. at ¶¶ 82; Lippard 20 Decl. (Dkt. # 104) at ¶ 108.) The housing units at NWIPC have bed ratios ranging from 7.8% to 21 45.3%. (Bostock Decl. at ¶ 37.) Further, guards are required to wear masks. (Id. at ¶ 56.) NWIPC 22 23 The court also finds that based on the parties’ briefing regarding class certification, a determination on this matter is unnecessary in the instant TRO motion. 9 ORDER – 16 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 17 of 20 1 also tests detainees during intake, whenever detainees are reassigned housing units, and before 2 they are transferred or removed from NWIPC. (Id. at ¶¶ 24, 45.) 3 With regard to the individuals at NWIPC who most recently tested positive for COVID- 4 19, it appears Respondents have taken reasonable measures to prevent the spread of the virus. 5 The pharmacy staff members who tested positive did not have contact with detainees. All three 6 were sent home to quarantine and the individual who violated NWIPC’s protocol had their 7 employment terminated. The detainee who tested positive after arriving at a detention center in 8 Arizona previously tested negative for the virus at NWIPC before his departure, and it is not 9 clear when he contracted the virus. Lastly, although there has been one detainee in general 10 population to test positive, Respondents responded by cohorting the unit and testing the other 11 individuals. They are currently investigating whether this was also a false positive and are 12 projected to soon implement prevalence testing. Respondents are also already conducting 13 reviews of detention determinations. While it is unknown at this time how many detainees may 14 test positive for COVID-19 at NWIPC in the future, the Court finds the current number of 15 detainees to test positive, and Respondents’ efforts to prevent the spread of the virus, are far 16 different than the circumstances in the facility at issue in Hernandez Roman. 17 The Court notes Petitioners have presented evidence that not all individuals are following 18 NWIPC’s procedures, such as guards failing to wear masks and staff failing to test highly 19 vulnerable detainees’ temperature twice a day. The COVID-19 pandemic is rapidly evolving, as 20 is Respondents’ response to the pandemic. Based on the record before the court, it appears 21 Respondents have implemented intentional procedures, including the requirement for staff to 22 wear masks, to prevent the spread of COVID-19. The court cannot find at this time that reports 23 of some individuals’ failure to follow procedures render Respondents’ measures unreasonable or ORDER – 17 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 18 of 20 1 make the conditions as NWIPC so unsafe as to constitute a violation of Petitioners’ constitutional 2 rights. Accordingly, the court finds Petitioners have failed to demonstrate a likelihood of success 3 on the merits of their Fifth Amendment “reasonable safety” claim or that they have raised serious 4 questions going to the merits of their claim. 5 2. Conditions Amounting to Punishment 6 Petitioners also argue continued detention is excessive in relation to any legitimate 7 government interest. (See TRO at 19-20.) To evaluate the constitutionality of pretrial detention 8 conditions under the Fifth Amendment, a district court must determine whether those conditions 9 “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979); see also 10 Kingsley, 576 U.S. at 396-99. Punishment may be shown through an express intent to punish or a 11 restriction or condition that “is not reasonably related to a legitimate governmental objective.” 12 Bell, 441 U.S. at 539; see also Kingsley, 576 U.S. at 398 (clarifying that “a pretrial detainee can 13 prevail by providing only objective evidence that the challenged governmental action is not 14 rationally related to a legitimate governmental objective or that it is excessive in relation to that 15 purpose”). 16 Petitioners have failed to make a clear showing that the continued detention of Petitioner 17 Khan and proposed class members is not reasonably related or excessive in relation to a 18 legitimate government interest. Petitioners assert the question of whether detention is reasonable 19 must be framed in the context of the current pandemic as opposed to normal circumstances. 20 (TRO at 18.) Petitioners argue that because vulnerable detainees have alternative options to 21 detention, continued detention is excessive in relation to any legitimate governmental interest. 22 (Id. at 19.) 23 ORDER – 18 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 19 of 20 1 The Supreme Court has recognized a legitimate government interest in ensuring that 2 non-citizens appear for their removal or deportation proceedings and protecting the community 3 from harm. See Jennings v. Rodriguez, ___ U.S. ___, 138 S.Ct. 830, 836 (2018); Demore v. Kim, 4 538 U.S. 510, 520-22 (2003); Zadvydas v. Davis, 533 U.S. at 690-91. As discussed above, 5 Respondents’ substantial steps to abate the risk of COVID-19 have thus far been effective at 6 preventing a widespread COVID-19 outbreak at NWIPC. While there have been a limited 7 number of individuals to test positive for the virus, Respondents continue to implement practices 8 to abate the risk of an outbreak. The court cannot conclude that continued detention outweighs or 9 is excessive in relation to any legitimate governmental interest. Accordingly, the court finds 10 Petitioners unlikely to succeed on their Fifth Amendment due process claim that their continued 11 detention amounts to punishment. 12 C. Likelihood of Irreparable Harm 13 The court also concludes that Petitioners have failed to meet their burden to show that 14 “irreparable harm is likely in the absence of an injunction.” Winter, 555 U.S. at 22. Petitioners 15 frame the recent positive COVID-19 tests at NWIPC as an “outbreak.” However, as discussed 16 above, there have been a limited number of individuals that have tested positive, particularly in 17 general population. Respondents have taken measures to prevent the spread of COVID-19, such 18 as reducing the detainee population and testing and quarantining incoming detainees and 19 detainees complaining of symptoms. Given Respondents’ precautions, the court cannot conclude 20 that Petitioners are at risk of irreparable harm without the requested relief.10 Accordingly, the 21 court DENIES Petitioners’ second motion for a TRO. 22 23 10 Because the court concludes Petitioners fail to meet the first two prongs of the TRO standard, the court need not address the final prongs. ORDER – 19 Case 2:20-cv-00700-JLR-MLP Document 188 Filed 12/18/20 Page 20 of 20 1 IV. CONCLUSION 2 For the foregoing reasons, the court DENIES Petitioners’ motion for a temporary 3 restraining order and expedited bail hearings (dkt. # 175). Respondents represent that the 4 implementation of its prevalence testing plan is projected to begin on or about December 23-24, 5 2020. (Malakhova Decl. (Dkt. # 186-1) at ¶ 6.) Respondents are ordered to submit a report to the 6 court regarding the status of prevalence testing at NWIPC by January 4, 2020. 7 Dated this 18th day of December, 2020. 8 A 9 ________________________________ JAMES L. ROBART United States District Judge 10 11 12 13 14 15 Recommended for Entry this 18th day of December, 2020. A MICHELLE L. PETERSON United States Magistrate Judge 16 17 18 19 20 21 22 23 ORDER – 20

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