UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division - Los Angeles)
CIVIL DOCKET FOR CASE #: 2:20-cv-04450-CBM-PVC

Yonnedil Carror Torres et al v. Louis Milusnic et al Assigned to: Judge Consuelo B. Marshall Referred to: Magistrate Judge Pedro V. Castillo Cause: 28:2241 Petition for Writ of Habeas Corpus (federal)

Date Filed: 05/16/2020 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: U.S. Government Defendant

Plaintiff
Yonnedil Carror Torres individually and on behalf of all others similarly situated

represented by Naeun Rim Bird Marella Boxer Wolpert Nessim Drooks Lincenberg and Rhow 1875 Century Park East 23rd Floor Los Angeles, CA 90067-2516 310-201-2100 Fax: 310-201-2110 Email: nrim@birdmarella.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shoshana E Bannett Bird Marella Boxer Wolpert Nessim Drooks Lincenberg and Rhow 1875 Century Park East 23rd Floor Los Angeles, CA 90067-2561 310-201-2100 Fax: 310-201-2110 Email: sbannett@birdmarella.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald Specter Prison Law Office 1917 Fifth Street Berkeley, CA 94710 510-280-2621 Fax: 510-280-2704 Email: dspecter@prisonlaw.com ATTORNEY TO BE NOTICED

Dorothy Wolpert

Bird Marella Boxer Wolpert Nessim Drooks and Lincenberg 1875 Century Park East 23rd Floor Los Angeles, CA 90067-2561 310-201-2100 Fax: 310-201-2110 Email: dwolpert@birdmarella.com ATTORNEY TO BE NOTICED
James Stamper Threatt Bird Marella Boxer Wolpert Nessim Drooks Lincenberg and Rhow 1875 Century Park East 23rd Floor Los Angeles, CA 90067-2561 310-201-2100 Fax: 310-201-2110 Email: jthreatt@birdmarella.com ATTORNEY TO BE NOTICED
Jumin Lee Bird Marella Boxer Wolpert Nessim Drooks Lincenberg and Rhow 1875 Century Park East Suite 2300 Los Angeles, CA 90067 310-201-2100 Fax: 310-201-2110 Email: clee@birdmarella.com ATTORNEY TO BE NOTICED
Kate S. Shin Bird Marella Boxer Wolpert Nessim Drooks Lincenberg and Rhow 1875 Century Park East 23rd Floor Los Angeles, CA 90067 310-201-2100 Fax: 310-201-2110 Email: kshin@birdmarella.com ATTORNEY TO BE NOTICED
Oliver Rocos Bird Marella Boxer Wolpert Nessim Drooks Lincenberg and Rhow 1875 Century Park East 23rd Floor Los Angeles, CA 90067 310-201-2100 Fax: 310-201-2110

Plaintiff
Vincent Reed individually and on behalf of all others similarly situated

Email: orocos@birdmarella.com ATTORNEY TO BE NOTICED
Peter Bibring ACLU Foundation of Southern California 1313 West Eight Street Los Angeles, CA 90017 213-977-9500 Fax: 213-977-5297 Email: pbibring@aclu-sc.org ATTORNEY TO BE NOTICED
Peter J Eliasberg ACLU of Southern California 1313 West 8th Street Suite 200 Los Angeles, CA 90017 213-977-9500 Fax: 213-977-5299 Email: peliasberg@aclusocal.org ATTORNEY TO BE NOTICED
Sara Linda Norman Prison Law Office 1917 Fifth Street Berkeley, CA 94710 510-280-2621 Fax: 510-280-2704 Email: snorman@prisonlaw.com ATTORNEY TO BE NOTICED
Terry W Bird Bird Marella Boxer Wolpert Nessim Drooks Lincenberg and Rhow 1875 Century Park East Suite 2300 Los Angeles, CA 90067-2561 310-201-2100 Fax: 310-201-2110 Email: tbird@birdmarella.com ATTORNEY TO BE NOTICED
represented by Naeun Rim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shoshana E Bannett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald Specter (See above for address) ATTORNEY TO BE NOTICED
Dorothy Wolpert (See above for address) ATTORNEY TO BE NOTICED
James Stamper Threatt (See above for address) ATTORNEY TO BE NOTICED
Jumin Lee (See above for address) ATTORNEY TO BE NOTICED
Kate S. Shin (See above for address) ATTORNEY TO BE NOTICED
Oliver Rocos (See above for address) ATTORNEY TO BE NOTICED
Peter Bibring (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sara Linda Norman (See above for address) ATTORNEY TO BE NOTICED
Terry W Bird (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Felix Samuel Garcia individually and on behalf of all others similarly situated

represented by Naeun Rim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shoshana E Bannett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald Specter (See above for address) ATTORNEY TO BE NOTICED
Dorothy Wolpert (See above for address) ATTORNEY TO BE NOTICED
James Stamper Threatt (See above for address) ATTORNEY TO BE NOTICED
Jumin Lee (See above for address) ATTORNEY TO BE NOTICED
Kate S. Shin (See above for address) ATTORNEY TO BE NOTICED
Oliver Rocos (See above for address) ATTORNEY TO BE NOTICED
Peter Bibring (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sara Linda Norman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Andre Brown individually and on behalf of all others similarly situated

Terry W Bird (See above for address) ATTORNEY TO BE NOTICED
represented by Naeun Rim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shoshana E Bannett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald Specter (See above for address) ATTORNEY TO BE NOTICED
Dorothy Wolpert (See above for address) ATTORNEY TO BE NOTICED
James Stamper Threatt (See above for address) ATTORNEY TO BE NOTICED
Jumin Lee (See above for address) ATTORNEY TO BE NOTICED
Kate S. Shin (See above for address) ATTORNEY TO BE NOTICED
Oliver Rocos (See above for address) ATTORNEY TO BE NOTICED
Peter Bibring (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address)

Plaintiff
Shawn L. Fears individually and on behalf of all others similarly situated

ATTORNEY TO BE NOTICED
Sara Linda Norman (See above for address) ATTORNEY TO BE NOTICED
Terry W Bird (See above for address) ATTORNEY TO BE NOTICED
represented by Naeun Rim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shoshana E Bannett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald Specter (See above for address) ATTORNEY TO BE NOTICED
Dorothy Wolpert (See above for address) ATTORNEY TO BE NOTICED
James Stamper Threatt (See above for address) ATTORNEY TO BE NOTICED
Jumin Lee (See above for address) ATTORNEY TO BE NOTICED
Kate S. Shin (See above for address) ATTORNEY TO BE NOTICED
Oliver Rocos (See above for address) ATTORNEY TO BE NOTICED
Peter Bibring

V.
Defendant
Louis Milusnic in his capacity as Warden of Lompoc

(See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sara Linda Norman (See above for address) ATTORNEY TO BE NOTICED
Terry W Bird (See above for address) ATTORNEY TO BE NOTICED
represented by Chung Hae Han AUSA - Office of US Attorney 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213-894-0474 Fax: 213-894-7819 Email: chung.han@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Damon A Thayer AUSA - US Attorneys Office 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213-894-6585 Fax: 213-894-7819 Email: damon.thayer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel A Beck AUSA - Office of US Attorney Civil Division 300 North Los Angeles Street Suite 7516

Defendant
Michael Carvajal in his capacity as Director of the Bureau of Prisons

Los Angeles, CA 90012 213-894-2574 Fax: 213-894-7819 Email: daniel.beck@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith M Staub AUSA - Office of US Attorney Civil Division 300 North Los Angeles Street Room 7516 Los Angeles, CA 90012 213-894-7819 Fax: 213-894-7819 Email: keith.staub@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jasmin Yang AUSA - US Attorneys Office 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213-894-8827 Fax: 213-894-7819 Email: jasmin.yang@usdoj.gov ATTORNEY TO BE NOTICED
Paul Bartholomew Green AUSA - Office of US Attorney 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213-894-0805 Fax: 213-894-7819 Email: Paul.Green@usdoj.gov ATTORNEY TO BE NOTICED
represented by Chung Hae Han (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Damon A Thayer

Interested Party Rhonda Fleming Interested Party Anthony Heard Interested Party Diana Hanson Interested Party Scott H Summerhays
Interested Party Sandra Hawthorne-Jones

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel A Beck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith M Staub (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jasmin Yang (See above for address) ATTORNEY TO BE NOTICED
Paul Bartholomew Green (See above for address) ATTORNEY TO BE NOTICED
represented by Scott H Summerhays Reg No. 97933-004 FCI LOMPOC 3600 Guard Road LOMPOC, CA 93436 PRO SE
represented by Sandra Hawthorne-Jones 252 Groom Avenue Covington, TN 38019 PRO SE

Interested Party Todd Hanson
Interested Party Nereida Velez Medina V. Intervenor Faustino Bernadett

represented by Todd Hanson 13910-104 FCI LOMPOC 3600 Guard Road LOMPOC, CA 93436 PRO SE
represented by Bryce Michael Cullinane Keesal Young and Logan APC 400 Oceangate Long Beach, CA 90802 562-436-2000 Fax: 562-436-7416 Email: bryce.cullinane@kyl.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B Newhouse , Jr Richards Carrington LLC 545 South Figueroa Street, 7th Floor Los Angeles, CA 90017 213-348-9016 Fax: 213-348-9016 Email: george@richardscarrington.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel A Keesal Keesal Young and Logan 400 Oceangate Long Beach, CA 90801-1730 562-436-2000 Fax: 5562-436-7416 Email: skip.keesal@kyl.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Danny Fabricant

Stefan Perovich Keesal Young and Logan 400 Oceangate Long Beach, CA 90802 562-436-2000 Fax: 562-436-7416 Email: stefan.perovich@kyl.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Danny Fabricant REG NO 84828-012 USP LOMPOC LEGAL MAIL - OPEN IN PRESENCE OF INMATE 3901 Klein Boulevard Suite J LOMPOC, CA 93436-2706 PRO SE

Date Filed 05/16/2020
05/16/2020 05/16/2020 05/16/2020

# Docket Text
1 COMPLAINT Receipt No: ACACDC-26467298 - Fee: $400, filed by Plaintiff-Petitioners Yonnedil Carror Torres, Andre Brown, Felix Samuel Garcia, Vincent Reed, Shawn L. Fears. (Attorney Naeun Rim added to party Andre Brown(pty:pet), Attorney Naeun Rim added to party Yonnedil Carror Torres(pty:pet), Attorney Naeun Rim added to party Shawn L. Fears(pty:pet), Attorney Naeun Rim added to party Felix Samuel Garcia(pty:pet), Attorney Naeun Rim added to party Vincent Reed(pty:pet))(Rim, Naeun) (Entered: 05/16/2020)
2 CIVIL COVER SHEET filed by Petitioners Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Rim, Naeun) (Entered: 05/16/2020)
3 CERTIFICATE of Interested Parties filed by Plaintiff-Petitioners Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed, (Attachments: # 1 Attachment A)(Rim, Naeun) (Entered: 05/16/2020)
4 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening), 1 filed by Plaintiff-Petitioners Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Rim, Naeun) (Entered: 05/16/2020)

05/18/2020 05/18/2020 05/18/2020 05/20/2020 05/22/2020
05/22/2020
05/22/2020

5 NOTICE OF ASSIGNMENT to District Judge Consuelo B. Marshall and Magistrate Judge Pedro V. Castillo. (lh) (Entered: 05/18/2020)
6 60 DAY Summons Issued re Complaint (Attorney Civil Case Opening), 1 as to Defendants Michael Carvajal, Louis Milusnic. (lh) (Entered: 05/18/2020)
7 STANDING ORDER upon filing of the complaint by Judge Consuelo B. Marshall. READ THIS ORDER CAREFULLY. It controls this case and may differ in some respects from the Local Rules. (ys) (Entered: 05/18/2020)
8 ORDER RE TRANSFER PURSUANT TO GENERAL ORDER 19-03 (Related Case) filed. Transfer of case declined by Judge Terry J. Hatter, Jr, for the reasons set forth on this order. Related Case No. 5:20-cv00768 TJH(PVC) (rn) (Entered: 05/20/2020)
9 Notice of Appearance or Withdrawal of Counsel: for attorney Keith M Staub counsel for Defendants Michael Carvajal, Louis Milusnic. Adding Keith M. Staub as counsel of record for Louis Milusnic, in his capacity as Warden of Lompoc; Michael Carvajal, in his capacity as Director of the Bureau of Prisons for the reason indicated in the G-123 Notice. Filed by Defendants Louis Milusnic, in his capacity as Warden of Lompoc; Michael Carvajal, in his capacity as Director of the Bureau of Prisons. (Attachments: # 1 Proof of Service)(Attorney Keith M Staub added to party Michael Carvajal(pty:dft), Attorney Keith M Staub added to party Louis Milusnic(pty:dft))(Staub, Keith) (Entered: 05/22/2020)
10 Notice of Appearance or Withdrawal of Counsel: for attorney Paul Bartholomew Green counsel for Defendants Michael Carvajal, Louis Milusnic. Adding Paul Bartholomew Green as counsel of record for Louis Milusnic and Michael Carvajal for the reason indicated in the G123 Notice. Filed by Respondents Louis Milusnic and Michael Carvajal. (Attorney Paul Bartholomew Green added to party Michael Carvajal(pty:dft), Attorney Paul Bartholomew Green added to party Louis Milusnic(pty:dft))(Green, Paul) (Entered: 05/22/2020)
11 Notice of Appearance or Withdrawal of Counsel: for attorney Jasmin Yang counsel for Defendants Michael Carvajal, Louis Milusnic. Adding Jasmin Yang as counsel of record for Louis Milusnic, in his capacity as Warden of Lompoc and Michael Carvajal in his capacity as Director of the Bureau of Prisons for the reason indicated in the G-123 Notice. Filed by Respondents Louis Milusnic, in his capacity as Warden of Lompoc, Michael Carvajal in his capacity as Director of the Bureau of Prisons. (Attorney Jasmin Yang added to party Michael

05/26/2020
05/26/2020 05/29/2020 06/01/2020 06/01/2020

Carvajal(pty:dft), Attorney Jasmin Yang added to party Louis Milusnic(pty:dft))(Yang, Jasmin) (Entered: 05/22/2020)
12 Notice of Appearance or Withdrawal of Counsel: for attorney Damon A Thayer counsel for Defendants Michael Carvajal, Louis Milusnic. Adding Damon A Thayer as counsel of record for LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL CARVAJAL, in his capacity as Director of the Bureau of Prisons for the reason indicated in the G-123 Notice. Filed by Defendants/Respondents LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL CARVAJAL, in his capacity as Director of the Bureau of Prisons. (Attachments: # 1 Proof of Service)(Attorney Damon A Thayer added to party Michael Carvajal(pty:dft), Attorney Damon A Thayer added to party Louis Milusnic(pty:dft))(Thayer, Damon) (Entered: 05/26/2020)
13 Notice of Appearance or Withdrawal of Counsel: for attorney Damon A Thayer counsel for Defendants Michael Carvajal, Louis Milusnic. Adding Damon A. Thayer as counsel of record for Defendants/Respondents LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL CARVAJAL, in his capacity as Director of the Bureau of Prisons for the reason indicated in the G-123 Notice. Filed by Defendants/Respondents Defendants/Respondents LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL CARVAJAL, in his capacity as Director of the Bureau of Prisons. (Attachments: # 1 Proof of Service)(Thayer, Damon) (Entered: 05/26/2020)
14 Notice of Appearance or Withdrawal of Counsel: for attorney Chung Hae Han counsel for Defendants Michael Carvajal, Louis Milusnic. Adding Chung H. Han as counsel of record for Louis Milusnic, Warden, Terminal Island; Michael Carvajal, Director, Federal Bureau of Prisons for the reason indicated in the G-123 Notice. Filed by respondents Louis Milusnic, Michael Carvajal. (Attorney Chung Hae Han added to party Michael Carvajal(pty:dft), Attorney Chung Hae Han added to party Louis Milusnic(pty:dft))(Han, Chung) (Entered: 05/29/2020)
15 NOTICE OF ERRATA filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. correcting Complaint (Attorney Civil Case Opening), 1 Regarding Clerical Errors in Complaint (Dkt. 1) (Rim, Naeun) (Entered: 06/01/2020)
16 COMPLAINT with filing fee previously paid ($400 paid on May 16, 2020, receipt number 26467298), filed by Plaintiffs-Petitioners

06/01/2020 06/01/2020 06/02/2020 06/02/2020
06/02/2020 06/04/2020

Yonnedil Carror Torres, Andre Brown, Felix Samuel Garcia, Vincent Reed, Shawn L. Fears.(Rim, Naeun) (Entered: 06/01/2020)
17 EX PARTE APPLICATION to Exceed Page Limitation on Ex Parte Application for Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction filed by Plaintiff-Petitioners Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Attachments: # 1 Proposed Order) (Rim, Naeun) (Entered: 06/01/2020)
18 EX PARTE APPLICATION for Temporary Restraining Order as to Defendant-Respondents and Order to Show Cause re: Preliminary Injunction filed by Plaintiff-Petitioners Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Attachments: # 1 Declaration of Naeun Rim, # 2 Declaration of Jimmy Threatt, # 3 Proposed Order) (Rim, Naeun) (Entered: 06/01/2020)
19 STIPULATION for Order GRANTING STIPULATION RE: BRIEFING OF PETITIONERS EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER (ECF. No. 18) filed by Respondents Michael Carvajal, Louis Milusnic. (Attachments: # 1 Proposed Order)(Staub, Keith) (Entered: 06/02/2020)
20 ORDER GRANTING STIPULATION RE: BRIEFING OF PETITIONERS EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER (ECF. No. 18) by Judge Consuelo B. Marshall: 1. The Stipulation is GRANTED; 2. (a) Petitioners and Respondents may extend the page limit in briefing their Ex Parte TRO and Opposition thereto to 65 pages each; (b) Respondents shall file their opposition to Petitioners Temporary Restraining Order as to Defendant-Respondents and Order to Show Cause re: Preliminary Injunction by Friday, June 5, 2020; and (c) Petitioners may file their reply by June 9, 2020. (shb) (Entered: 06/02/2020)
21 MINUTES IN CHAMBERS-ORDER AND NOTICE TO ALL PARTIES by Judge Consuelo B. Marshall: Counsel are hereby notified that pursuant to the Judge's directive, the ex parte to exceed page application for Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction 17 is hereby denied as moot in light of the stipulation 19 . (shb) (Entered: 06/02/2020)
22 EX PARTE APPLICATION to Certify Class (Provisional) filed by Plaintiff-Petitioners Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Attachments: # 1 Declaration of Donald Specter, # 2 Declaration of Naeun Rim, # 3 Declaration of Peter Eliasberg, # 4 Proposed Order) (Rim, Naeun) (Entered: 06/04/2020)

06/05/2020 06/05/2020 06/05/2020 06/08/2020 06/08/2020
06/09/2020

23 STIPULATION for Order GRANTING STIPULATION RE: BRIEFING OF PETITIONERS EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION (ECF. No. 22) filed by Respondents Michael Carvajal, Louis Milusnic. (Attachments: # 1 Proposed Order)(Staub, Keith) (Entered: 06/05/2020)
24 ORDER GRANTING STIPULATION RE: BRIEFING OF PETITIONERS' EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION (Ecf. No. 22) 23 by Judge Consuelo B. Marshall: 1. The Stipulation is GRANTED. 2. Respondents shall file their oppositions to Petitioners' Ex Parte Application for Class Certification by Tuesday, June 9, 2020 at 10:00 a.m.; and Petitioners shall file their reply by June 11, 2020 at 5:00 p.m. (shb) (Entered: 06/05/2020)
25 OPPOSITION IN OPPOSITION re: EX PARTE APPLICATION for Temporary Restraining Order as to Defendant-Respondents and Order to Show Cause re: Preliminary Injunction 18 filed by Defendants Michael Carvajal, Louis Milusnic. (Attachments: # 1 Declaration Engleman, # 2 Declaration Cross, # 3 Declaration Arnold)(Staub, Keith) (Entered: 06/05/2020)
26 STIPULATION for Protective Order filed by Plaintiff-petitioner Yonnedil Carror Torres. (Attachments: # 1 Exhibit)(Norman, Sara) (Entered: 06/08/2020)
27 Notice of Appearance or Withdrawal of Counsel: for attorney Kate S Shin counsel for Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. Adding Kate S. Shin as counsel of record for YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL GARCIA; ANDRE BROWN; SHAWN L. FEARS, individually and on behalf of all others similarly situated for the reason indicated in the G-123 Notice. Filed by PlaintiffPetitioners YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL GARCIA; ANDRE BROWN; SHAWN L. FEARS, individually and on behalf of all others similarly situated. (Attorney Kate S Shin added to party Andre Brown(pty:pla), Attorney Kate S Shin added to party Yonnedil Carror Torres(pty:pla), Attorney Kate S Shin added to party Shawn L. Fears(pty:pla), Attorney Kate S Shin added to party Felix Samuel Garcia(pty:pla), Attorney Kate S Shin added to party Vincent Reed(pty:pla))(Shin, Kate) (Entered: 06/08/2020)
28 NOTICE OF SUPPLEMENTAL AUTHORITY IN OPPOSITION TO PETITIONERS EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER filed by Respondents Michael Carvajal,

06/09/2020 06/09/2020
06/09/2020 06/09/2020 06/11/2020 06/11/2020

Louis Milusnic. (Attachments: # 1 Exhibit June 8, 2020 order in Wilson v. Ponce)(Staub, Keith) (Entered: 06/09/2020)
29 OPPOSITION IN OPPOSITION re: EX PARTE APPLICATION to Certify Class (Provisional) 22 filed by Defendants Michael Carvajal, Louis Milusnic. (Staub, Keith) (Entered: 06/09/2020)
30 Notice of Appearance or Withdrawal of Counsel: for attorney Oliver Rocos counsel for Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. Adding Oliver Rocos as counsel of record for YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL GARCIA; ANDRE BROWN; SHAWN L. FEARS, individually and on behalf of all others similarly situated for the reason indicated in the G-123 Notice. Filed by PlaintiffPetitioners YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL GARCIA; ANDRE BROWN; SHAWN L. FEARS, individually and on behalf of all others similarly situated. (Attorney Oliver Rocos added to party Andre Brown(pty:pla), Attorney Oliver Rocos added to party Yonnedil Carror Torres(pty:pla), Attorney Oliver Rocos added to party Shawn L. Fears(pty:pla), Attorney Oliver Rocos added to party Felix Samuel Garcia(pty:pla), Attorney Oliver Rocos added to party Vincent Reed(pty:pla))(Rocos, Oliver) (Entered: 06/09/2020)
31 STIPULATED PROTECTIVE ORDER by Judge Consuelo B. Marshall. See order for details. (shb) (Entered: 06/09/2020)
32 REPLY in support of EX PARTE APPLICATION for Temporary Restraining Order as to Defendant-Respondents and Order to Show Cause re: Preliminary Injunction 18 filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Attachments: # 1 Declaration of Oliver Rocos)(Rim, Naeun) (Entered: 06/09/2020)
33 NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF PLAINTIFF-PETITIONERS' EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed (Attachments: # 1 Exhibit Amended Order)(Shin, Kate) (Entered: 06/11/2020)
34 REPLY in Support of EX PARTE APPLICATION to Certify Class (Provisional) 22 filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Specter, Donald) (Entered: 06/11/2020)

06/26/2020 07/02/2020 07/06/2020
07/07/2020 07/08/2020 07/08/2020

35 MINUTE IN CHAMBERS ORDER AND NOTICE TO ALL PARTIES by Judge Consuelo B. Marshall: Counsel are hereby notified that pursuant to the Judge's directive, the Plaintiff's Ex parte application for Temporary Restraining Order 18 and Plaintiff's Ex parte application for provisional class certification 22 are hereby set for hearing on July 7, 2020 at 11:00 a.m. (shb) (Entered: 06/29/2020)
36 NOTICE OF MOTION AND MOTION to Dismiss Case filed by Respondents Michael Carvajal, Louis Milusnic. Motion set for hearing on 8/4/2020 at 10:00 AM before Judge Consuelo B. Marshall. (Attachments: # 1 Proposed Order) (Staub, Keith) (Entered: 07/02/2020)
37 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: NOTICE OF MOTION AND MOTION to Dismiss Case 36 . The following error(s) was/were found: The Motion to Dismiss is set for hearing before the Hon. Consuelo B. Marshall and the proposed order indicates that Judge Michael F. Fitzgerald. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (shb) (Entered: 07/06/2020)
38 MINUTES OF TELEPHONIC HEARING RE EX PARTE APPLICATION RE TEMPORARY RESTRAINING ORDER 22 Hearing held before Judge Consuelo B. Marshall: The case is called and counsel state their appearance. The Court is present, via telephone, court and counsel confer regarding the status of the case. Following discussions with the parties, the Court will take the matter under submission. Counsel shall meet and confer and alert the Court if there is anything further for the Court to consider. A written order will issue. Court Reporter: Maria Bustillos. (shb) (Entered: 07/07/2020)
39 Plaintiff-Petitioners' Supplemental Filing in Support of Ex Parte Application for Temporary Restraining Order and Order to Show Cause Re Preliminary Injunction; Declaration of Jimmy Threatt in Support filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed re: EX PARTE APPLICATION for Temporary Restraining Order as to DefendantRespondents and Order to Show Cause re: Preliminary Injunction 18 (Rim, Naeun) (Entered: 07/08/2020)
40 NOTICE OF SUPPLEMENTAL AUTHORITY; (2) REQUEST FOR JUDICIAL NOTICE; AND (3) OBJECTION TO PETITIONERS' SUPPLEMENTAL DECLARATION IN SUPPORT OF EX PARTE

07/08/2020 07/08/2020 07/09/2020
07/09/2020
07/14/2020

APPLICATION FOR TEMPORARY RESTRAINING ORDER filed by RESPONDENTS Michael Carvajal, Louis Milusnic. (Attachments: # 1 Declaration P. Green)(Staub, Keith) (Entered: 07/08/2020)
41 NOTICE OF NON-OPPOSITION To Converting July 7 Hearing Re: Temporary Restraining Order To Preliminary Injunction filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Rim, Naeun) (Entered: 07/08/2020)
42 NOTICE of Non-Opposition to Converting July 7, 2020 Hearing Re: Temporary Restraining Order to Preliminary Injunction and Response to Petitioners' Notice of Non-Opposition [Dkt. No. 41] filed by Respondents Michael Carvajal, Louis Milusnic. (Yang, Jasmin) (Entered: 07/08/2020)
43 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Miscellaneous Document, 39 . The following error(s) was/were found: Incorrect event selected. Correct event to be used is: Civil Events Motions and Related Filings Responses/Replies/Other Motion Related Documents - Select - Supplement (Motion related). In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (shb) (Entered: 07/09/2020)
44 MINUTE ORDER IN CHAMBERS by Judge Consuelo B. Marshall re: PLAINTIFF-PETITIONERS' EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION as to DefendantRespondents, 18 . The Application for Temporary Restraining Order is converted to an Expedited Motion for Preliminary Injunction. The parties shall not file additional evidence or briefs re the TRO/Preliminary Injunction absent leave of Court. The motion for preliminary injunction is deemed submitted. (shb) (Entered: 07/09/2020)
45 ORDER RE: PLAINTIFF - PETITIONERS MOTION FOR PRELIMINARY INJUNCTION, AND EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION' 18 , 22 by Judge Consuelo B. Marshall: The Court GRANTS Petitioners Motion for Preliminary Injunction and Ex Parte Application for Provisional Class Certification as follows: 1. The Court certifies, on a provisional basis, a class defined as allcurrent and future people in post-conviction custody at FCI Lompoc and USP Lompoc over the age of 50, and all current and future people in post-conviction custody at FCI Lompoc and USP

Lompoc of any age with underlying health conditions, including chronic obstructive pulmonary disease; serious heart conditions such as heart failure, coronary artery disease, or cardiomyopathies; Type 2 diabetes; chronic kidney disease; sickle cell disease; immunocompromised state from a solid organ transplant; obesity (body mass index of 30 or higher); asthma; cerebrovascular diseases; cystic fibrosis; hypertension or high blood pressure; immunocompromised state from blood or bone marrow transplant; immune deficiencies, HIV, or those who use corticosteroids, or use other immune weakening medicines; neurologic conditions such as dementia; liver diseases; pulmonary fibrosis; thalassemia; Type 1 diabetes; and smokers (hereinafter, Underlying Health Conditions); 2. No later than July 20, 2020, Respondents shall file under seal a list with the Court which: (a) identifies all members of the class defined in this Order; (b) identifies each class members sentencing court and the criminal case number; and (c) identifies whether the class member has (i) submitted a request for compassionate release, and if so whether a decision has been made as to the request, and (ii) been reviewed for home confinement since March 26, 2020, and if so, whether the inmate has been designated for home confinement; 3. No later than July 22, 2020, Respondents shall file a declaration setting forth the process used to identify the class members in the list filed; 4. No later than July 22, 2020, notify inmates that they are being considered for home confinement and institute a process, including free telephone calls or emails to their families so that inmates can provide Respondents with a plan for release to home confinement, which includes any information about their ability to quarantine for 14 days upon release; 5. No later than July 28, 2020, Respondents shall make full and speedy use of their authority under the CARES Act and evaluate each class members eligibility for home confinement which gives substantial weight to the inmates risk factors for severe illness or death from COVID-19 based on age (over 50) or Underlying Health Conditions; 6. No later than July 29, 2020, Respondents shall file under seal a declaration setting forth a list of class members whom Respondents have determined are eligible for home confinement, and an explanation for each denial of home confinement of any class member, including an explanation of the factual basis for any factors determined to outweigh the danger to the inmate from COVID-19; 7. No later than July 22, 2020, file a declaration setting forth criteria for compassionate release which takes into account COVID-19, and an explanation if no such criteria for compassionate release exists which takes into account COVID-19 as to Lompoc inmates; and 8. No later than August 3, 2020, for any Lompoc inmate who has made a written request for compassionate release based on COVID-19 but has not received a decision, Respondents shall provide written notice of either (a) a referral of the matter in writing with recommendation of approval of the request pursuant to 28 C.F.R. § 571.62, or (b) a denial of the

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request and copy of the applicable appeal form pursuant to 28 C.F.R. §§ 571.63, 542.15. The Court further orders the parties to meet and confer no later than July 17, 2020 regarding arrangements for a site visit of Lompoc and a process in which Petitioners counsel can confidentially communicate with Petitioners and class members, and file a joint status report re same no later than July 20, 2020. (shb) (Entered: 07/14/2020)
46 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Dismiss Case 36 filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Rim, Naeun) (Entered: 07/14/2020)
47 STIPULATION for Protective Order filed by Respondents Michael Carvajal, Louis Milusnic. (Attachments: # 1 Proposed Order)(Yang, Jasmin) (Entered: 07/20/2020)
48 STATEMENT Joint Statement on Site Visit and Process for Communicating with Class Members re: Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 . (Rim, Naeun) (Entered: 07/20/2020)
49 SEALED DOCUMENT Notice of Filing Lists Identifying Members of Provisional Class re Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 07/20/2020)
50 DECLARATION of Lawrence Cross re Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 filed by Defendants Michael Carvajal, Louis Milusnic. (Yang, Jasmin) (Entered: 07/20/2020)
51 DECLARATION of Todd Javernick re Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 filed by Defendants Michael Carvajal, Louis Milusnic. (Yang, Jasmin) (Entered: 07/20/2020)
52 REPLY IN SUPPORT OF NOTICE OF MOTION AND MOTION to Dismiss Case 36 filed by Defendants Michael Carvajal, Louis Milusnic. (Staub, Keith) (Entered: 07/21/2020)
53 TRANSCRIPT ORDER as to defendants Michael Carvajal, Louis Milusnic DCN number: R20CACA1141 for Court Reporter. (Han, Chung) (Entered: 07/22/2020)
54 DECLARATION of Christa Colvin re Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class

07/22/2020 07/22/2020 07/23/2020 07/23/2020 07/24/2020 07/27/2020
07/30/2020

Action,,,,,,,,,,,,,,,, 45 filed by Defendants Michael Carvajal, Louis Milusnic. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Yang, Jasmin) (Entered: 07/22/2020)
55 SEALED DOCUMENT Notice of Filing Amended List Identifying Members of Provisional Class at USP Lompoc re Sealed Document, 49 , Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 07/22/2020)
56 DECLARATION of Todd Javernick re Declaration 51 Supplemental filed by Defendants Michael Carvajal, Louis Milusnic. (Yang, Jasmin) (Entered: 07/22/2020)
57 DECLARATION of Gabriel Gutierrez re Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 filed by Defendants Michael Carvajal, Louis Milusnic. (Yang, Jasmin) (Entered: 07/23/2020)
58 SECOND PROTECTIVE ORDER by Magistrate Judge Pedro V. Castillo re Stipulation for Protective Order 47 . (see document for details) (hr) (Entered: 07/23/2020)
59 EX PARTE APPLICATION for Order for CONTINUANCE OF PRELIMINARY-INJUNCTION-RELATED DEADLINES; filed by Respondents Michael Carvajal, Louis Milusnic. (Attachments: # 1 Declaration of Melissa Arnold, # 2 Proposed Order) (Thayer, Damon) (Entered: 07/24/2020)
60 ORDER GRANTING RESPONDENTS UNOPPOSED EX PARTE APPLICATION FOR CONTINUANCE OF PRELIMINARYINJUNCTION RELATED DEADLINES, 59 by Judge Consuelo B. Marshall: The Application is GRANTED, and IT IS HEREBY ORDERED that the Courts July 14, 2020 Order re: Plaintiff-Petitioners Motion for Preliminary Injunction, and Ex Parte Application for Provisional Class Certification (Dkt. No. 45) is modified as follows: 1. Respondents July 28, 2020 deadline to evaluate class members iscontinued, on a rolling basis, to August 7 and 14, 2020; 2. Respondents July 29, 2020 declaration-filing deadline is extended to August 19, 2020; and 3. Respondents August 3, 2020 deadline to issue certain written notices is continued, on a rolling basis, to August 6, 13, and 20, 2020. (shb) (Entered: 07/27/2020)
61 MINUTES IN CHAMBERS-ORDER AND NOTICE TO ALL PARTIES by Judge Consuelo B. Marshall: The Court finds that Respondent's motion to dismiss 36 , currently scheduled for hearing on

08/05/2020 08/06/2020 08/06/2020
08/07/2020 08/07/2020
08/10/2020

August 4, 2020, is appropriate for decision without oral argument. Accordingly, this motion is taken UNDER SUBMISSION and the hearing is vacated. No appearances are necessary on August 4, 2020. A written order will issue. IT IS SO ORDERED. (shb) (Entered: 07/30/2020)
62 Plaintiff-Petitioners' Proposed Expert (Attachments: # 1 Exhibit A)(Norman, Sara) (Entered: 08/05/2020)
63 MINUTE IN CHAMBERS ORDER RE SITE VISIT EXPERT by Judge Consuelo B. Marshall: re: Proposed Rule 706 Expert 62 . Defendant shall file, no later than August 7, 2020 at 12 p.m., an alternative proposed expert for a site visit. A failure to do so by that date and time shall result in the COurt's approval of PlaintiffPetitioners' proposed expert for a site visit to take place the week of August 10, 2020. IT IS SO ORDERED. (shb) (Entered: 08/06/2020)
64 MINUTE IN CHAMBERS ORDER RE: CORRESPONDENCE FROM/ON BEHALF OF LOMPOC INMATES by Judge Consuelo B. Marshall: Since the Court's July 14, 2020 Order re preliminary injunction, Dkt 45 , the Court has received numerous correspondence from Lompoc inmates and persons on their behalf. Upon notification from the Court of said correspondence, Plaintiffs' counsel requested that the correspondence be forwarded to them. Accordingly, the clerk is directed to forward said correspondence to Plaintiffs' counsel. The Court has not retained said copies of said correspondence and will not take action at this time on said correspondence. IT SI SO ORDERED. (shb) (Entered: 08/06/2020)
65 OBJECTIONS to Miscellaneous Document 62 filed by Defendants Michael Carvajal, Louis Milusnic. (Attachments: # 1 Declaration of Paul B Green, # 2 Exhibit A, # 3 Exhibit B)(Staub, Keith) (Entered: 08/07/2020)
66 MINUTE IN CHAMBERS ORDER REl SITE VISIT EXPERTS by Judge Consuelo B. Marshall: r Plaintiff-Petitioners have proposed Dr. Homer Venters as an expert to perform a site visit of FCC Lompoc the week of August 10, 2020. (Dkt. No. 62). Defendant-Respondents objected to Plaintiff's proposed expert and submitted a counterproposal. (Dkt. No. 65.) Plaintiff-Petitioner shall file a response to Defendant-Respondents' objection and couunter-proposal no later than 12:00 p.m. on August 10, 2020. IT IS SO ORDERED. (shb) (Entered: 08/07/2020)
67 REPLY in Support of Motion to Appoint Rule 706 Expert filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Specter, Donald) (Entered: 08/10/2020)

08/10/2020
08/12/2020
08/14/2020 08/14/2020 08/17/2020 08/18/2020

68 Notice of Appearance or Withdrawal of Counsel: for attorney Daniel A Beck counsel for Defendants Michael Carvajal, Louis Milusnic. Adding Daniel A. Beck as counsel of record for Louis Milusnic, in his capacity as Warden of Lompoc; Michael Carvajal, in his capacity as Director of the Bureau of Prisons for the reason indicated in the G-123 Notice. Filed by Defendants Louis Milusnic, in his capacity as Warden of Lompoc; Michael Carvajal, in his capacity as Director of the Bureau of Prisons. (Attorney Daniel A Beck added to party Michael Carvajal(pty:dft), Attorney Daniel A Beck added to party Louis Milusnic(pty:dft))(Beck, Daniel) (Entered: 08/10/2020)
69 MINUTE IN CHAMBERS ORDER RE: RULE 706 EXPERT by Judge Consuelo B. Marshall: Defendant-Respondents' objection to PlaintiffPetitioners' proposed Rule 706 Expert is OVERRULED. The Court appoints De. Homer Venters as an expert to conduct a site visit of FCC Lompoc pursuant to Federal Rule of Evidence 706. The site visit shall take place no later than September 4, 2020. The parties shall meet and confer regarding the date, time and arrangements that need to be made for the site visit, and the deadline for Dr. Venters to submit a written report of his observations during the site visit and recommendations he may have to the Court and the parties, ahd submit a stipulation or ex parte application with a proposed order re same no later than August 14, 2020. The Court finds $2500 per day for the site visit as set forth in the Fee Schedule included in Dr. Venters' CV is reasonable compensation pursuant to Rule 706(c). Petitioner shall provide a copy of this Order to Dr. Venters no later than August 14, 2020. IT IS SO ORDERED. See order for further details. (shb) (Entered: 08/12/2020)
70 RESPONSE filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reedto Minutes of In Chambers Order/Directive - no proceeding held,,,, 69 Request for Order Re Site Visit by 706 Expert (Attachments: # 1 Proposed Order Pltfs Proposed Order re Lompoc Site Visit)(Specter, Donald) (Entered: 08/14/2020)
71 OPPOSITION filed by Defendants Michael Carvajal, Louis Milusnic. (Attachments: # 1 Declaration of Paul B. Green, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Proposed Order)(Green, Paul) (Entered: 08/14/2020)
72 STIPULATION for Order RE SITE VISIT BY RULE 706 EXPERT filed by Respondents Michael Carvajal, Louis Milusnic. (Attachments: # 1 Proposed Order)(Beck, Daniel) (Entered: 08/17/2020)
73 EX PARTE APPLICATION for Enlargement of Time to File Declaration Due August 19, 2020 filed by Respondents Michael

08/18/2020
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Carvajal, Louis Milusnic. (Attachments: # 1 Declaration of David Brewer, # 2 Declaration of Jasmin Yang, # 3 Proposed Order) (Yang, Jasmin) (Entered: 08/18/2020)
74 ORDER REGARDING SITE VISIT AT FCC LOMPOC, 72 by Judge Consuelo B. Marshall: IT IS ORDERED that: The site inspection shall occur on September 1 and 2, 2020. Upon request by Dr. Venters, Defendant-Respondents will make staff available to answer Dr. Venters questions regarding health care and the institutions Covid-19 response, including health care and custody staff. Dr. Venters may interview other staff encountered on the tour as well. The inspector mayinterview prisoners, with their permission. These interviews may be confidential at the request of Dr. Venters or the prisoner. Dr. Venters will submit a report of his findings by no later than September 30, 2020. The parties may agree on other dates without seeking approval from the Court; provided, however, the parties shall notify the Court of any changes to the deadline for submitting the report. Dr. Venters has been appointed as an expert under Federal Rule of Evidence 706. As such, ex parte communications between Dr. Venters and the parties counsel regarding this case or Lompoc are prohibited. Any communications or calls between Dr. Venters and the parties counsel must include counsel for both Petitioners and Respondents. This limitation does not prevent Dr. Venters from having any discussions with prison staff at Lompoc. See order for further details. (shb) (Entered: 08/18/2020)
76 MINUTE IN CHAMBERS - ORDER AND NOTICE TO ALL PARTIES by Judge Consuelo B. Marshall: Counsel are hereby notified that pursuant to the Judge's directive, the Plaintiff's ex parte 70 is hereby denied as moot in light of the stipulation 72 and Court's order 74 granting the stipulation. IT IS SO ORDERED. (shb) (Entered: 08/19/2020)
75 MEMORANDUM in Opposition to EX PARTE APPLICATION for Enlargement of Time to File Declaration Due August 19, 2020 73 filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Attachments: # 1 Declaration Declaration of Naeun Rim in Support of Opposition, # 2 Exhibit 1 through 4, # 3 Proposed Order)(Rim, Naeun) (Entered: 08/19/2020)
77 ORDER RE: RESPONDENTS EX PARTE APPLICATION FOR ENLARGEMENT OF TIME TO FILE DECLARATION, 73 by Judge Consuelo B. Marshall: IT IS HEREBY ORDERED THAT: 1. The Application is GRANTED as follows: 2. No later than August 20, 2020, Defendant-Respondents shall file a declaration containing all narratives explaining home confinement decisions completed to date; 3. No later than August 20, 2020, Defendant-Respondents shall file an

08/20/2020 08/26/2020 08/27/2020
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exhibit that includes the summary document that Respondents have been using to track the reasons for their home confinement decisions for each class member who has been reviewed to date;4. No later than August 26, 2020, Defendant-Respondents shall to file asupplemental declaration containing the narratives explaining all remaining homeconfinement decisions for class members; and 5. A Status Conference is set for September 1, 2020 AT 12:30 p.m.,regarding Respondents compliance with the Courts Preliminary Injunction Order. The parties shall file a joint status report summarizing all issues to be discussed at the Status Conference no later than 12:30 p.m. on August 28, 2020. (shb) (Entered: 08/19/2020)
78 SEALED DOCUMENT Declaration of Melissa Arnold re Order on Motion for Enlargement of Time to File,,,, 77 , Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 filed by Defendants Michael Carvajal, Louis Milusnic. (Attachments: # 1 Exhibit A, # 2 Exhibit B (Part 1 of 3), # 3 Exhibit B (Part 2 of 3), # 4 Exhibit B (Part 3 of 3))(Yang, Jasmin) (Entered: 08/20/2020)
79 SEALED DOCUMENT Declaration of Theresa Leyvas re Order on Motion for Enlargement of Time to File,,,, 77 , Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 filed by Defendants Michael Carvajal, Louis Milusnic. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Yang, Jasmin) (Entered: 08/26/2020)
80 MINUTE IN CHAMBERS ORDER RE CORRESPONDENCE FROM/ON BEHALF OF LOMPOC INMATES by Judge Consuelo B. Marshall: The Court has received additional correspondence from Lompoc inmates and/or persons on or behalf since the Court's August 6, 2020 order (Dkt No. 64). Pursuant to Plaintiffs' counsel prior request that correspondence from Lompoc inmates and/or persons on their behalf be forward to them, the clerk is directed to forward said additional correspondence to Plaintiffs' counsel. The Court has not retained copies of said correspondence and will not take action at this tome on said correspondence. IT IS SO ORDERED. (shb) (Entered: 08/27/2020)
81 MINUTE IN CHAMBERS ORDER AND NOTICE TO ALL PARTIES by Judge Consuelo B. Marshall: Counsel are hereby notified that the Status Conference set for September 1, 2020 will be as a video conference on September 1, 2020 at 12:30 p.m. The parties will be contacted by out IT Department with more information. IT IS SO ORDERED. (shb) (Entered: 08/27/2020)

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09/09/2020

82 SEALED DOCUMENT Notice of Errata Re Declaration of Theresa Leyva re Sealed Document, 79 , Order on Motion for Enlargement of Time to File,,,, 77 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 08/27/2020)
83 STIPULATION for Protective Order filed by defendants Michael Carvajal, Louis Milusnic. (Attachments: # 1 Proposed Protective Order Re: Production of Inmate Health Records to Court-Appointed Expert)(Green, Paul) (Entered: 08/28/2020)
84 STATUS REPORT (Joint) filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Rim, Naeun) (Entered: 08/28/2020)
85 PROTECTIVE ORDER by Magistrate Judge Pedro V. Castillo re Stipulation for Protective Order 83 . (see document for details) (hr) (Entered: 08/28/2020)
86 MINUTES OF VIDEO HEARING RE STATUS CONFERENCE held before Judge Consuelo B. Marshall. Following discussions with the parties, the Court orders the parties to meet and confer re the special master and the exchange list of proposed special masters no later than September 8, 2020. The parties shall file a stipulation or proposed list of special masters no later than September 10, 2020. Court Reporter: Maria Bustillos, via video. (lom) (Entered: 09/04/2020)
87 SEALED DOCUMENT Supplemental Declaration of Theresa Leyvas re Order on Motion for Enlargement of Time to File,,,, 77 , Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 filed by Defendants Michael Carvajal, Louis Milusnic. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Yang, Jasmin) (Entered: 09/04/2020)
88 SEALED DOCUMENT Notice of Errata re Declaration of Theresa Leyva re Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 , Sealed Document, 79 , Order on Motion for Enlargement of Time to File,,,, 77 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 09/04/2020)
89 EX PARTE APPLICATION for Order for GRANTING RESPONDENTS EX PARTE APPLICATION RE: BRIEFING DISPUTED ISSUES TO THE SPECIAL MASTER filed by Respondents Michael Carvajal, Louis Milusnic. (Attachments: # 1 Declaration of Daniel A. Beck, # 2 Proposed Order) (Beck, Daniel) (Entered: 09/09/2020)

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90 OPPOSITION to EX PARTE APPLICATION for Order for GRANTING RESPONDENTS EX PARTE APPLICATION RE: BRIEFING DISPUTED ISSUES TO THE SPECIAL MASTER 89 filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Attachments: # 1 Proposed Order)(Rim, Naeun) (Entered: 09/09/2020)
91 MINUTES IN CHAMBERS - ORDER RE: RESPONDENTS' EX PARTE APPLICATION RE: BRIEFING DISPUTED ISSUES TO THE SPECIAL MASTER 89 by Judge Consuelo B. Marshall. The matter before the Court is Respondents' Ex Parte Application re: Briefing Disputed Issues to the Special Master (the "Application"). (Dkt. No. 89 .) Petitioners filed an opposition to the Application. (Dkt. No 90 .) Respondents' Application is premature. No special master has been appointed in this case. Accordingly, the Application is DENIED without prejudice. (lom) Modified on 9/10/2020 (lom). (Entered: 09/10/2020)
92 Respondents' Submission Re: Proposed Special Masters and Proposed Scope and Powers of Special Master re: Status Conference - optional html form, 86 (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Yang, Jasmin) (Entered: 09/10/2020)
93 NOTICE OF MOTION AND MOTION to Enforce Compliance with Preliminary Injunction and for Order to Show Cause; Declaration of Naeun Rim filed by Petitioners Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. Motion set for hearing on 10/6/2020 at 10:00 AM before Judge Consuelo B. Marshall. (Attachments: # 1 Proposed Order) (Rim, Naeun) (Entered: 09/10/2020)
94 EX PARTE APPLICATION for Order for Shorten Time Re: Motion to Enforce Compliance with Preliminary Injunction and for Order to Show Cause filed by Plaintiff-Petitioners Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Attachments: # 1 Proposed Order) (Rim, Naeun) (Entered: 09/10/2020)
95 Proposal Regarding Special Master filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed (Attachments: # 1 Exhibit Attachments A-F, # 2 Proposed Order)(Norman, Sara) (Entered: 09/10/2020)
96 MINUTES IN CHAMBERS - ORDER RE: PLAINTIFFPETITIONERS' EX PARTE APPLICATION TO SHORTEN TIME RE: MOTION TO ENFORCE COMPLIANCE WITH PRELIMINARY INJUNCTION AND FOR ORDER TO SHOW

CAUSE 94 by Judge Consuelo B. Marshall. The Application is DENIED. The hearing on the Motion to Enforce Compliance with Preliminary Injunction and For Order to Show Cause (Dkt. No. 93 (the "Motion")), shall take place (if necessary) on the noticed hearing date of October 6, 2020 at 10:00 a.m. The briefing re: the Motion shall be due as follows: 1. Opposition to the Motion shall be filed no later than September 15, 2020; and2. Reply to the Motion, if any, shall be filed no later than September 21, 2020. IT IS SO ORDERED. (lom) (Entered: 09/11/2020)

09/11/2020

97 OBJECTIONS to Order on Motion for Order,, 96 Respondents' Objection to Order re: Plaintiff-Petitioners' Ex Parte Application to Shorten Time Re: Motion to Enforce Compliance with Preliminary Injunction and for Order to Show Cause filed by Defendants Michael Carvajal, Louis Milusnic. (Yang, Jasmin) (Entered: 09/11/2020)

09/15/2020

98 Respondents' Opposition to Petitioners' Motion to Enforce Compliance with Preliminary Injunction and For Order to Show Cause Opposition re: NOTICE OF MOTION AND MOTION to Enforce Compliance with Preliminary Injunction and for Order to Show Cause; Declaration of Naeun Rim 93 filed by Defendants Michael Carvajal, Louis Milusnic. (Attachments: # 1 Declaration of Melissa Arnold)(Yang, Jasmin) (Entered: 09/15/2020)

09/18/2020

99 ORDER RE: RESPONDENTS MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B)(1) AND12(B)(6) 36 , by Judge Consuelo B. Marshall: the Court DENIES Respondents Petitioners Motion to Dismiss Under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). IT IS SO ORDERED. (shb) (Entered: 09/18/2020)

09/18/2020

100 REPLY IN SUPPORT OF NOTICE OF MOTION AND MOTION to Enforce Compliance with Preliminary Injunction and for Order to Show Cause; Declaration of Naeun Rim 93 filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Lee, Jumin) (Entered: 09/18/2020)

09/25/2020

101 FRE 706 REPORT of Dr. Homer Venters filed by Defendants Michael Carvajal, Louis Milusnic. (Attachments: # 1 Report of Dr. Homer Venters)(Green, Paul) (Entered: 09/25/2020)

10/02/2020

102 ANSWER to Complaint (Attorney Civil Case Opening) 16 (Corrected Complaint) filed by Defendants Michael Carvajal, Louis Milusnic.(Han, Chung) (Entered: 10/02/2020)

10/05/2020

103 MINUTES IN CHAMBERS-ORDER AND NOTICE TO ALL PARTIES by Judge Consuelo B. Marshall: The Court finds that the motion to enforce compliance with preliminary injunction and Order to

Show Cause 93 and currently set for hearing on October 6, 2020, is appropriate for decision without oral argument. Accordingly, this motion is taken UNDER SUBMISSION and the hearing is vacated. No appearances are necessary on October 6, 2020. A written order will issue. IT IS SO ORDERED. (shb) (Entered: 10/05/2020)

10/07/2020

104 MINUTE IN CHAMBERS ORDER RE: CORRESPONDENCE FROM/ON BEHALF OF LOMPOC INMATES by Judge Consuelo B. Marshall: The Court has received additional correspondence from Lompoc inmates and/or persons on their behalf since the Court's August 27, 2020 order (Dkt. No. 80). Pursuant to Plaintiff's counsel prior request that correspondence from Lompoc inmates and/or persons on their behalf be forwarded to them, the clerk is directed to forward said additional correspondence to Plaintiffs' counsel. The Court will not take action at this time on said correspondence. IT SI SO ORDERED. (shb) (Entered: 10/08/2020)

10/08/2020

105 ORDER GRANTING MOTION TO ENFORCE COMPLIANCE WITH PRELIMINARY INJUNCTION AND FOR ORDER TO SHOW CAUSE, 93 by Judge Consuelo B. Marshall: The Court GRANTS the Motion as follows: 1. No later than October 16, 2020, Respondents are ORDERED to file a declaration under seal confirming that all class members who were identified as having been approved for home confinement in Dkt. Nos. 78, 82, and 87 have been released to home confinement, including the date of each inmates release to home confinement. The declaration shall identify each approved class member identified in Dkt. Nos 78, 82, and 87 who has not been released to home confinement by the date of the filing of the declaration, and explain the reason for the delay in his release to home confinement. The declaration shall also include an explanation of the steps required to place Lompoc inmates on home confinement after an inmate has been approved for home confinement, and identify the shortest amount of time in which placement of an inmate on home confinement can be accomplished; 2. No later than October 16, 2020, Respondents are ORDERED to file a declaration under seal identifying Lompoc inmates who were denied home confinement and instead designated to a Residential Re-entry Center (RRC or halfway house), who have no history of violence, no sex-offense- or terrorism-related convictions, and do not have a High PATTERN score (RRC Class Members); and 3. No later than October 16, 2020, Respondents are ORDERED to file a declaration under seal identifying each RRC Class Member who was denied home confinement but has a viable release plan, which explains why home confinement was denied and how public safety or other considerations would make it unsafe to release the inmate to home confinement. IT IS SO ORDERED. (shb) (Entered: 10/09/2020)

10/15/2020

106 MINUTE IN CHAMBERS-ORDER AND NOTICE TO ALL PARTIES by Judge Consuelo B. Marshall:Counsel are hereby notified that the above matter is set on the Court's calendar for a VIDEO Status Conference hearing on OCTOBER 21, 2020 AT 9:00 a.m. IT IS SO ORDERED. (shb) (Entered: 10/15/2020)

10/15/2020

107 [REFER TO NOTICE OF CLERICAL ERROR , 108 ] - ORDER RE VEXATIOUS LITIGANT FILING by Judge Consuelo B. Marshall, IT IS HEREBY ORDERED that the documents presented be filed in the above-captioned case. (shb) Modified on 10/16/2020 (shb). (Entered: 10/15/2020)

10/16/2020

108 NOTICE OF CLERICAL ERROR: Due to clerical error Re: Vexatious Litigant Filing (CV-115) 107 . This document was filed in this case in error and should have been filed in case 2:16-cv-2655 TJH (SSx). (shb) (Entered: 10/16/2020)

10/16/2020

109 SEALED DOCUMENT Declarations in Compliance with Order Granting Motion to Enforce Compliance with Preliminary Injunction [DE 105] re Order on Motion to Enforce,,,,,,, 105 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 10/16/2020)

10/21/2020

112 AMENDED MINUTES VIDEO STATUS CONFERENCE held before Judge Consuelo B. Marshall: The case is called and counsel state their appearance. The Court and counsel confer regarding the status of the case. Status Conference held. Following discussions with the parties, the Court advises counsel that no special master will be appointed at this time. The Court will order the parties to produce the writing to petitioner by no later than October 30, 2020 re the Dr. Venters report. A further status conference will be set after the Court has reviewed the report, as stated on the record. IT IS SO ORDERED. (shb) (Entered: 10/26/2020)

10/21/2020

117 AMENDED MINUTES OF VIDEO STATUS CONFERENCE 112 held before Judge Consuelo B. Marshall. Following discussions with the parties, the Court advises counsel that no special master will be appointed at this time. The Court will order the parties to produce the writing to petitioner by no later than October 30, 2020 re the Dr. Venters report. A further status conference will be set after the Court has reviewed the report, as stated on the record. (lom) (Entered: 11/04/2020)

10/22/2020

110 TRANSCRIPT ORDER for Court Reporter.Transcript preparation will not begin until payment has been satisfied with the court reporter. (ha) (Entered: 10/22/2020)

10/22/2020

111 MINUTES OF VIDEO STATUS CONFERENCE held before Judge Consuelo B. Marshall. Following discussions with the parties, the Court advises counsel that no special master will be appointed at this time. The Court will order the parties to produce the writing to petitioner by no later than October 30, 2020 re the Dr. Venters report. A further status conference will be set after the Court has reviewed the report, as stated on the record. Court Reporter: Myra Ponce. (lom) (Entered: 10/22/2020)

10/30/2020

113 RESPONSE filed by Defendants Michael Carvajal, Louis Milusnicto Report 101 (Response to Report of Dr. Homer Venters) (Beck, Daniel) (Entered: 10/30/2020)

11/01/2020

114 TRANSCRIPT for proceedings held on 10/21/2020 at 9:36 a.m. Court Reporter/Electronic Court Recorder: Myra L. Ponce, CSR, RDR, CRR, e-mail address myraponce@sbcglobal.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 11/23/2020. Redacted Transcript Deadline set for 12/2/2020. Release of Transcript Restriction set for 2/1/2021. (Ponce, Myra) (Entered: 11/01/2020)

11/01/2020

115 NOTICE OF FILING TRANSCRIPT filed for proceedings 10/21/2020 at 9:36 a.m. re Transcript 114 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Ponce, Myra) TEXT ONLY ENTRY (Entered: 11/01/2020)

11/03/2020

116 TRANSCRIPT ORDER as to Defendants Michael Carvajal, Louis Milusnic DCN number: R21CACA0110 for Court Reporter. (Yang, Jasmin) (Entered: 11/03/2020)

11/05/2020

118 MINUTE ORDER IN CHAMBERS - ORDER AND NOTICE TO ALL PARTIES by Judge Consuelo B. Marshall. Counsel are hereby notified that the above matter is set on the Court's calendar for a VIDEO Status Conference hearing on NOVEMBER 24, 2020 AT 9:00 a.m. Counsel must file a joint status report by November 17, 2020. The parties shall also file a list of issue they wish to address at the status conference. (lom) (Entered: 11/05/2020)

11/05/2020

119 SEALED DOCUMENT Declaration of Melissa Arnold re Sealed Document 109 , Order on Motion to Enforce,,,,,,, 105 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 11/05/2020)

11/17/2020 120 STATUS REPORT (Joint) filed by Defendants Michael Carvajal, Louis Milusnic. (Yang, Jasmin) (Entered: 11/17/2020)

11/17/2020

121 Joint List of Issues to be Addressed at Status Conference filed by Defendants Michael Carvajal, Louis Milusnic re: Minutes of In Chambers Order/Directive - no proceeding held,, Set/Reset Deadlines/Hearings, 118 (Yang, Jasmin) (Entered: 11/17/2020)

11/18/2020

122 NOTICE OF LODGING filed TO CLARIFY PRELIMINARY INJUNCTION ORDER re Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 (Attachments: # 1 Proposed Order)(Rim, Naeun) (Entered: 11/18/2020)

11/19/2020

123 MINUTE ORDER IN CHAMBERS-ORDER SETTING SCHEDULING CONFERENCE by Judge Consuelo B. Marshall: On the Court's own motion, this case is set for a Scheduling Conference on NOVEMBER 24, 2020 at 9:00 A. M. pursuant to FRCP 16(b), as well as the Video Status Conference. Counsel are reminded of their obligations to disclose information and confer on a discovery plan not later than 21 days prior to the Scheduling Conference. Counsel shall file a Rule 26(f) discovery plan no later than NOVEMBER 23, 2020 by 12 noon to the Scheduling Conference and pursuant to the Court's Standing Order. The Rule 26(f) discovery plan shall contain following information: (see document for further details) (bm) (Entered: 11/19/2020)

11/20/2020

124 SEALED DOCUMENT Declaration of Todd Javernick dated November 20, 2020 re Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 , Declaration 51 , Declaration 56 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 11/20/2020)

11/20/2020

125 SEALED DOCUMENT Declaration of James Engleman dated November 20, 2020 re Order on Motion to Enforce,,,,,,, 105 , Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 11/20/2020)

11/20/2020

126 DECLARATION of Lawrence Cross re Declaration 50 filed by Defendants Michael Carvajal, Louis Milusnic. (Yang, Jasmin) (Entered: 11/20/2020)

11/23/2020

127 STATUS REPORT JOINT REPORT OF RULE 26(f) MEETING filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Rim, Naeun) (Entered: 11/23/2020)

11/23/2020

128 OBJECTIONS to Notice of Lodging, 122 and Petitioners' [Proposed] Order to Clarify Preliminary Injunction Order [122-1] filed by Defendants Michael Carvajal, Louis Milusnic. (Green, Paul) (Entered: 11/23/2020)

11/24/2020

129 CONSENT TO PROCEED before Magistrate Judge, in accordance with Title 28 Section 636(c) and F.R.CIV.P 73(b), filed by Plaintiff Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Attachments: # 1 Proposed Order CV-11D STATEMENT OF CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE)(Rim, Naeun) (Entered: 11/24/2020)

11/24/2020

130 MINUTES OF TELEPHONIC/VIDEO HEARING RE STATUS CONFERENCE held before Judge Consuelo B. Marshall: The case is called and counsel state their appearance. The Court and counsel confer. The correspondence is discussed. Status conference is held. Following discussions with the parties, the Court will issue the following dates as stated on the record: Fact discovery shall be completed on or before February 1, 2021. Non Experrt and Expert disclosure shall be completed on or before February 1, 2021. Rebuttal Expert disclosure due no later than March 1, 2021. Expert discovery completion due by no later than March 15, 2021. Settlement conference shall be held on or before March 30, 2021. Motions shall be set for oral argument on or before April 20, 2021 at 10:00 a.m. Pre Trial Conference is set on June 15, 2021 at 2:30 p.m. Bench Trial is set on July 6, 2021 at 10:00 a.m.(est. 2-4 days). Counsel will meet and confer and submit the Consent to proceed before the Magistrate Judge, Form CV 11-D, if the Magistrate Judge selected is not on the consent list the parties will agree to another Magistrate Judge that is on the list. IT IS SO ORDERED. Court Reporter: Maria Bustillos. (shb) (Entered: 11/30/2020)

11/30/2020

131 CONSENT TO PROCEED before United States Magistrate Judge by all parties pursuant to GO 18-11 is denied by Magistrate Judge Pedro V. Castillo. This case shall remain assigned to the District Judge. (rn) (Entered: 11/30/2020)

12/01/2020

132 [Terminated 1-25-21 per dkt 164 ] - NOTICE OF MOTION AND MOTION for Leave to file COMPLAINT-IN-INTERVENTION AND REQUESTING ORDER FOR IMMEDIATE EVALUATION PURSUANT TO THE COURT'S ORDER OF JULY 14, 2020 filed by Plaintiff Intervenor Faustino Bernadett. Motion set for hearing on 12/29/2020 at 10:00 AM before Judge Consuelo B. Marshall. (Attachments: # 1 Memorandum of Points & Authorities ISO Motion, # 2 Proposed Order Granting Motion, # 3 Exhibit Proposed Complaintin-Intervention) (Attorney Bryce Michael Cullinane added to party

Faustino Bernadett(pty:mov)) (Cullinane, Bryce) Modified on 1/26/2021 (shb). (Entered: 12/01/2020)

12/04/2020 133 DECLARATION of David Dwyer filed by Defendants Michael Carvajal, Louis Milusnic. (Yang, Jasmin) (Entered: 12/04/2020)

12/04/2020

134 SEALED DOCUMENT Declaration of James Engleman dated December 3, 2020 re Sealed Document, 125 , Status Conference optional html form,,,,, Set/Reset Deadlines/Hearings,,,, 130 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 12/04/2020)

12/08/2020

135 RESPONDENTS' OPPOSITION TO PROPOSED INTERVENOR FAUSTINO BERNADETT'S MOTION FOR ORDER GRANTING LEAVE TO INTERVENE AS PLAINTIFF AND FOR IMMEDIATE EVALUTION PURSUANT TO THE COURT'S ORDER OF JULY 14, 2020 in Opposition to re: NOTICE OF MOTION AND MOTION for Leave to file COMPLAINT-IN-INTERVENTION AND REQUESTING ORDER FOR IMMEDIATE EVALUATION PURSUANT TO THE COURT'S ORDER OF JULY 14, 2020 132 filed by Defendants Michael Carvajal, Louis Milusnic. (Han, Chung) (Entered: 12/08/2020)

12/08/2020

136 NOTICE OF NON-OPPOSITION to NOTICE OF MOTION AND MOTION for Leave to file COMPLAINT-IN-INTERVENTION AND REQUESTING ORDER FOR IMMEDIATE EVALUATION PURSUANT TO THE COURT'S ORDER OF JULY 14, 2020 132 filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Rocos, Oliver) (Entered: 12/08/2020)

12/10/2020

137 STATUS REPORT (JOINT) RE: MAGISTRATE JUDGE filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Rim, Naeun) (Entered: 12/10/2020)

12/15/2020

138 APPLICATION for Leave to file REDACTED DKT. NOS. 132-1 & 132-3 filed by Plaintiff Intervenor Faustino Bernadett. Application set for hearing on 12/29/2020 at 10:00 AM before Judge Consuelo B. Marshall. (Attachments: # 1 Redacted Document Dkt. No. 132-1 MEMO OF P&A ISO MOTION TO INTERVENE, # 2 Redacted Document Dkt. No. 132-3 [PROPOSED] COMPLAINT-ININTERVENTION, # 3 Proposed Order GRANTING APPLICATION TO SEAL DKT. NOS. 132-1 & 132-3) (Cullinane, Bryce) (Entered: 12/15/2020)

12/15/2020

139 RESPONSE IN SUPPORT of NOTICE OF MOTION AND MOTION for Leave to file COMPLAINT-IN-INTERVENTION AND REQUESTING ORDER FOR IMMEDIATE EVALUATION

PURSUANT TO THE COURT'S ORDER OF JULY 14, 2020 132 filed by Intervenor Faustino Bernadett. (Attachments: # 1 Declaration of SAMUEL A. KEESAL, JR.)(Cullinane, Bryce) (Entered: 12/15/2020)

12/15/2020

140 ORDER GRANTING FAUSTINO BERNADETT'S APPLICATION TO SEAL AND REDACT CONFIDENTIAL PRE-SENTENCE INVESTIGATION REPORT 138 by Judge Consuelo B. Marshall granting 138 APPLICATION: [NOTE: CHANGES MADE BY THE COURT]: Bernadett shall file redacted copies of said documents no later than December 21, 2020. (see document for further details) (bm) (Entered: 12/16/2020)

12/16/2020

141 MINUTE ORDER IN CHAMBERS-ORDER AND NOTICE TO ALL PARTIES by Judge Consuelo B. Marshall: Counsel are hereby notified that pursuant to the Judge's directive, the parties are to file the ADR-01 Form and complete initial disclosures by no later than December 23, 2020. (bm) (Entered: 12/16/2020)

12/16/2020

142 MINUTES (IN CHAMBERS) NOTICE TO ALL PARTIES OF COURT ORDER by Judge Consuelo B. Marshall. On the Court's own motion, the motion for order granting leave to intervene as plaintiff and for immediate evaluation pursuant to the court's order of July 14, 2020 132 , currently scheduled for December 29, 2020, is hereby ordered continued to January 12, 2021 at 10:00 a.m. (iv) (Entered: 12/16/2020)

12/16/2020

143 MEMORANDUM in Support of NOTICE OF MOTION AND MOTION for Leave to file COMPLAINT-IN-INTERVENTION AND REQUESTING ORDER FOR IMMEDIATE EVALUATION PURSUANT TO THE COURT'S ORDER OF JULY 14, 2020 132 filed by Intervenor Faustino Bernadett. (Cullinane, Bryce) (Entered: 12/16/2020)

12/16/2020

144 [PROPOSED] COMPLAINT-IN-INTERVENTION re NOTICE OF MOTION AND MOTION for Leave to file COMPLAINT-ININTERVENTION AND REQUESTING ORDER FOR IMMEDIATE EVALUATION PURSUANT TO THE COURT'S ORDER OF JULY 14, 2020 132 filed by Intervenor Faustino Bernadett. (Cullinane, Bryce) (Entered: 12/16/2020)

12/18/2020

145 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Memorandum 143 , [Proposed] Complaint-InIntervention 144 . The following error(s) was/were found: Caption of document is incomplete/incorrect. Captions of both Memorandum and [Proposed] Complaint-In-Intervention should include all parties, not just "et al". Proposed Complaint-In-Intervention should have been efiled as a Notice of Lodging with the separate, additional attachment of

the [Proposed] Complaint-In-Intervention In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (bm) (Entered: 12/18/2020)

12/18/2020

146 SEALED DOCUMENT Declaration of Todd Javernick dated December 18, 2020 re Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 12/18/2020)

12/18/2020

147 DECLARATION of Lawrence Cross re Sealed Document, 146 dated December 18, 2020 filed by Defendants Michael Carvajal, Louis Milusnic. (Yang, Jasmin) (Entered: 12/18/2020)

12/22/2020

148 SEALED DOCUMENT Declaration of James Engleman dated December 22 2020 re Sealed Document 119 , Sealed Document 109 , Sealed Document, 125 , Sealed Document, 134 , Order on Motion to Enforce,,,,,,, 105 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 12/22/2020)

12/23/2020

149 REQUEST for ADR Procedure No. 3. Parties request for private mediation. Filed by Defendants Michael Carvajal, Louis Milusnic(Green, Paul) (Entered: 12/23/2020)

12/23/2020

150 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Request for ADR Procedure No. 3 - (ADR-1) 149 . The following error(s) was/were found: Proposed Document was not submitted as separate attachment. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (shb) (Entered: 12/23/2020)

12/29/2020

151 MINUTE IN CHAMBERS- ORDER REFERRING MATTERS TO MAGISTRATE JUDGE by Judge Consuelo B. Marshall: Having reviewed the parties joint status reports (Dkt. Nos. 120, 137) and following the status conference with the parties on November 24, 2020, the Court refers the following issues as described by the parties in the joint status report attached hereto (Dkt. No. 120) to the magistrate judge assigned to the case to meet with the parties and assist them in resolving the issues: 1. Identification and notice to the class; 2. Future Class Members and Periodic updates; 3. Review and Reconsideration for Factual Errors; 4. Protective order for review worksheets; 5. Home

confinement evaluation process; 6. Delayed Transfer to Home Confinement. IT IS SO ORDERED. (shb) (Entered: 12/29/2020)

01/05/2021

152 MINUTE (IN CHAMBERS) ORDER SETTING MATTER FOR A VIDEO STATUS CONFERENCE RE: MATTERS REFERRED TO MAGISTRATE JUDGE (Dkt. No. 151 ) by Magistrate Judge Pedro V. Castillo, re: Status Report 120 , Status Report 137 . The Court hereby sets a video status conference to discuss with the parties the current state of these issues. The video status conference is set for Thursday, January 21, 2021 at 10:30 a.m. (see document for further details) (hr) (Entered: 01/05/2021)

01/07/2021

153 SEALED DOCUMENT Declaration of Todd Javernick dated January 7, 2021 re Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 01/07/2021)

01/07/2021

154 DECLARATION of Lawrence Cross dated January 7, 2021 filed by Defendants Michael Carvajal, Louis Milusnic. (Yang, Jasmin) (Entered: 01/07/2021)

01/12/2021

155 NOTICE OF DISCREPANCY AND ORDER: by Judge Consuelo B. Marshall, ORDERING Letter from Edward Lee Foster, Jr., not dated submitted by Edward Lee Foster, Jr. received on 12/17/2020 is not to be filed but instead rejected. Denial based on: Local Rule 83-2.5 - No letters to the judge. This is an improper letter to the Court. An7 requests for compassionate release of reduction in sentence must be made with the sentencing court cannot determine the sentencing court based on this letter.. (shb) (Entered: 01/12/2021)

01/12/2021

156 NOTICE OF DISCREPANCY AND ORDER by Judge Consuelo B. Marshall, ORDERING Letter from Deal Chandler, dated 12/23/2020 submitted by Dean Chandler received on December 23, 2020 is not to be filed but instead rejected. Denial based on: Local Rule 83-2.5 - No letters to the judge. (shb) (Entered: 01/12/2021)

01/12/2021

157 NOTICE OF DISCREPANCY AND ORDER: by Judge Consuelo B. Marshall, ORDERING Letter from Saundra Hawtnorne-Jones re Anderson Hawthorne Jr Dated 12/19/2020 submitted by Plaintiff Saundra Hawthorne-Joness received on 12/30/2020 is not to be filed but instead rejected. Denial based on: Local Rule 83-2.5 - No letters to the judge. (shb) (Entered: 01/12/2021)

01/12/2021

158 MINUTES OF VIDEO/TELEPHONIC HEARING RE PLAINTIFF INTERVENOR FAUSTINO BERNADETT'S MOTION FOR ORDER GRANTING LEAVE TO INTERVENE AS PLAINTIFF AND FOR

IMMEDIATE EVALUATION PURSUANT TO THE COURT ORDER OF JULY 14, 2020, 132 Hearing held before Judge Consuelo B. Marshall: The case is called and counsel state their appearance. Dr. Bernadett and his wife are present via video. The Court and counsel confer regarding the status of the case. Following discussions with the parties, the Court advises counsel that the motion is taken under submission and a written order will issue. IT IS SO ORDERED. Court Reporter: Miranda Algorri. (shb) (Entered: 01/13/2021)

01/12/2021

165 NOTICE OF DISCREPANCY AND ORDER: by Judge Consuelo B. Marshall, ORDERING LETTER from Rhonda Fleming, Dated 11-272020. submitted by Interested Party Rhonda Fleming received on 12/17/20 is not to be filed but instead rejected. Denial based on: Local Rule 83-2.5 No letters to the judge. The Court will not forward the letter to the counsel identified as counsel's information is already provided in the letter itself, so letter can be sent directly to the counsel by sender. (lom) (Entered: 01/26/2021)

01/15/2021

159 SEALED DOCUMENT Declaration of Melissa Arnold re Order on Motion to Enforce,,,,,,, 105 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 01/15/2021)

01/19/2021

160 PETITIONERS' SUMMARY OF DISPUTED ISSUES filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed re: Minutes of In Chambers Order/Directive - no proceeding held,, Set/Reset Hearing, 152 (Rim, Naeun) (Entered: 01/19/2021)

01/20/2021

161 NOTICE of Mootness re Proposed Intervenor Faustino Bernadett's Motion for Order Granting Leave to Intervene as Plaintiff and for Immediate Evaluation Pursuant to the Court's Order of July 14, 2020 [DE 132] filed by Respondents Michael Carvajal, Louis Milusnic. (Han, Chung) (Entered: 01/20/2021)

01/21/2021

162 MINUTES (IN CHAMBERS) ORDER RE: PLAINTIFF INTERVENOR GAUSTINO BERNADETT'S MOTION FOR ORDER GRANTING LEAVE TO INTERVENE AS PLAINTIFF AND FOR IMMEDIATE EVALUATION PURSUANT TO THE COURT'S ORDER OF JULY 14, 2020 by Judge Consuelo B. Marshall: The Court has reviewed Respondents' "Notice of Mootness re: Proposed Intervenor Plaintiff Faustino Bernadett's Motion for Order Granting Leave to Intervene as Plaintiff and for Immediate Evaluation Pursuant to the Court's Order of July 14, 2020" (Dkt 161), wherein Respondents state Bernatett received a presidential pardon on January 20, 2021 and request that Bernadett's Motion to Intervene (Dkt No. 132) be denied as moot. In light of the Notice, Bernadett shall file a notice of withdrawal

of the Motion to intervene, No later than January 26, 2021. A failure to file a notice of withdrawal by that date shall result in the denial of the Motion to Intervene as moot. IT IS SO ORDERED. (shb) (Entered: 01/21/2021)

01/21/2021

163 MINUTES OF (IN CHAMBERS) ORDER SETTING BRIEFING SCHEDULE ON MATTERS REFERRED TO MAGISTRATE JUDGE 151 , 160 held before Magistrate Judge Pedro V. Castillo. On January 21, 2021, the Court held a video conference to discuss with the parties any remaining disputed issues. Petitioners' Opening Brief is due by January 29, 2021. Respondents shall file an Opposition by February 5, 2021. Petitioners' Reply, if any, is due by February 12, 2021. The matter will then be taken under submission without a hearing pursuant to Local Rule 7-15 unless otherwise ordered by the Court. (see document for further details) Court Recorder: Zoom 1/21/21. (hr) (Entered: 01/21/2021)

01/25/2021

164 Notice of Withdrawal of Motion for Leave to File Document,, 132 filed by Plaintiff Intervenor Faustino Bernadett. (Cullinane, Bryce) (Entered: 01/25/2021)

01/26/2021

166 NOTICE OF DISCREPANCY AND ORDER: by Judge Consuelo B. Marshall, ORDERING Letter from Anthony Heard, not dated submitted by Interested Party Anthony Heard received on 1/6/21 is not to be filed but instead rejected. Denial based on: Local Rule 83-2.5 No letters to the judge. This is an improper letter to the Court. Any requests for compassionate release or a reduction in sentence must be made with the sentencing court, and this court cannot determine the sentencing court based on this letter. (lom) (Entered: 01/26/2021)

01/26/2021

167 NOTICE OF DISCREPANCY AND ORDER: by Judge Consuelo B. Marshall, ORDERING Letter to Judge dated 1/4/2021 from Diana Hanson re her husband Todd Hanson submitted by Interested Party Diana Hanson received on 1/5/21 is not to be filed but instead rejected. Denial based on: Local Rule 83-2.5 No letters to the judge. This is an improper letter to the Court. Any request for compassionate release or a reduction in sentence must be made to the sentencing court. (lom) (Entered: 01/26/2021)

01/27/2021

168 TRANSCRIPT ORDER as to Defendants Michael Carvajal, Louis Milusnic DCN number: R21CAC0338 for Court Reporter. (Han, Chung) (Entered: 01/27/2021)

01/29/2021

169 NOTICE OF MOTION AND MOTION to Enforce Compliance With Preliminary Injunction filed by Plaintiff-Petitioners Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent

Reed. (Attachments: # 1 Declaration of Oliver Rocos, # 2 Proposed Order) (Rocos, Oliver) (Entered: 01/29/2021)

02/01/2021

170 TRANSCRIPT for proceedings held on 1-12-21, 11:56 am. Court Reporter/Electronic Court Recorder: Miranda Algorri, phone number/email mirandaalgorri@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 2/22/2021. Redacted Transcript Deadline set for 3/4/2021. Release of Transcript Restriction set for 5/3/2021. (Algorri, Miranda) (Entered: 02/01/2021)

02/01/2021

171 NOTICE OF FILING TRANSCRIPT filed for proceedings 01-12-21, 11:56 am re Transcript 170 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Algorri, Miranda) TEXT ONLY ENTRY (Entered: 02/01/2021)

02/05/2021

172 SEALED DOCUMENT Declaration of Todd Javernick re Order on Motion for Temporary Restraining Order,,,,,,,,,,,,,,,,, Order on Motion to Certify Class Action,,,,,,,,,,,,,,,, 45 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 02/05/2021)

02/05/2021

173 SEALED DOCUMENT Declaration of Melissa Arnold re Order on Motion to Enforce,,,,,,, 105 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 02/05/2021)

02/05/2021

174 Respondents' Opposition to Petitioners' Motion Regarding Respondents' Alleged Non-Compliance with the Court's Preliminary Injunction Opposition re: NOTICE OF MOTION AND MOTION to Enforce Compliance With Preliminary Injunction 169 filed by Defendants Michael Carvajal, Louis Milusnic. (Attachments: # 1 Declaration of Jason Christopher, # 2 Declaration of David Dwyer, # 3 Declaration of Asma Tekbali, # 4 Declaration of Chung Han)(Yang, Jasmin) (Entered: 02/05/2021)

02/05/2021

181 ORDER DENYING TRANSFER from the United States Judicial Panel on Multidistrict Litigation, MDL ORDER 2985 (shb) (Entered: 02/22/2021)

02/10/2021

175 NOTICE OF DISCREPANCY AND ORDER: by Judge Consuelo B. Marshall, ORDERING Letter from Todd Hanson, not dated submitted by Interested Party Diana Hanson received on January 27, 2021 is not to be filed but instead rejected. Denial based on: Local Rule 83-2.5 - No letters to the judge. Improper letter to the Court. (shb) (Entered: 02/11/2021)

02/10/2021

176 NOTICE OF DISCREPANCY AND ORDER: by Judge Consuelo B. Marshall, ORDERING Letter from Scott Summerhays dated Jan 26, 2021 submitted by Intervenor Scott H Summerhays received on January 29, 2021 is not to be filed but instead rejected. Denial based on: Local Rule 83-2.5 - No letters to the judge. Improper letter to Court. You may consider filing a request for assistance in filing a 2241 motion with the sentencing court. (shb) (Entered: 02/11/2021)

02/10/2021

177 NOTICE OF DISCREPANCY AND ORDER: by Judge Consuelo B. Marshall, ORDERING Letter from Saundra Hawtnorne-Jones re Anderson Hawthorne Jr Dated 12/19/2020 submitted by Interested Party Sandra Hawthorne-Jones received on January 13, 2021 is not to be filed but instead rejected. Denial based on: Local Rule 83-2.5 - No letters to the judge. (shb) (Entered: 02/11/2021)

02/10/2021

178 NOTICE OF DISCREPANCY AND ORDER: by Judge Consuelo B. Marshall, ORDERING Lerrer from Todd Hanson, not dated submitted by Interested Party Todd Hanson received on January 13, 2021 is not to be filed but instead rejected. Denial based on: Local Rule 83-2-5: No letters to the judge. Improper letter to Court. (shb) (Entered: 02/11/2021)

02/10/2021

179 NOTICE OF DISCREPANCY AND ORDER: by Judge Consuelo B. Marshall, ORDERING Letter from Todd Hanson, not dated. submitted by Interested Party Todd Hanson received on January 6, 2021 is not to be filed but instead rejected. Denial based on: Local Rule 83-2.5 - No letters to the judge. Improper letter to Court. (shb) (Entered: 02/11/2021)

02/12/2021

180 REPLY in Support NOTICE OF MOTION AND MOTION to Enforce Compliance With Preliminary Injunction 169 filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Rim, Naeun) (Entered: 02/12/2021)

03/02/2021

182 NOTICE OF DISCREPANCY AND ORDER: by Judge Consuelo B. Marshall, ORDERING Letter from Danny Fabricant dated February 17, 2021 submitted by Movant Danny Fabricant received on February 24, 2021 is not to be filed but instead rejected. Denial based on: Local Rule 83-2.5 - No letter to the judge. This is a class action and the class is represented by class counsel and class representatives. Individual class members cannot file their own amended complaint in this action.. (shb) (Entered: 03/02/2021)

03/02/2021

183 NOTICE OF DISCREPANCY AND ORDER: by Judge Consuelo B. Marshall, ORDERING Letter from Nereida Velez Medina re Christian Badillo Hernandez dated February 23, 2021; submitted by Interested Party Nereida Velez Medina received on 2/25/21 is not to be filed but

instead rejected. Denial based on: Local Rule 83-2.5 No letters to the judge. (lom) Modified on 3/2/2021 (lom). (cc to Medina -dqa desk) (Entered: 03/02/2021)

03/09/2021

184 SEALED DOCUMENT Declaration of Melissa Arnold re Order on Motion to Enforce,,,,,,, 105 filed by Defendants Michael Carvajal, Louis Milusnic.(Yang, Jasmin) (Entered: 03/09/2021)

03/09/2021 185 DECLARATION of Lawrence Cross filed by Defendants Michael Carvajal, Louis Milusnic. (Yang, Jasmin) (Entered: 03/09/2021)

03/11/2021

186 MINUTE (IN CHAMBERS) ORDER SETTING HEARING ON PETITIONERS' MOTION TO ENFORCE COMPLIANCE WITH PRELIMINARY INJUNCTION (Dkt. No. 169 ) by Magistrate Judge Pedro V. Castillo. To provide an opportunity for the parties to apprise the Court of the status of their outstanding disputes and to clarify their respective arguments on the issues raised in the Motion, the Court hereby sets a hearing on the Motion for Friday, March 19, 2021 at 9:30 a.m. (see document for further details) (hr) (Entered: 03/11/2021)

03/12/2021

187 NOTICE OF SUPPLEMENTAL AUTHORITY IN OPPOSITION TO MOTION REGARDING RESPONDENTS' NON-COMPLIANCE WITH THE COURT'S PRELIMINARY INJUNCTION [DKT. 169] filed by defendants-respondents Michael Carvajal, Louis Milusnic. (Attachments: # 1 Attachment)(Green, Paul) (Entered: 03/12/2021)

03/19/2021

188 MINUTES OF (IN CHAMBERS) ORDER SETTING SCHEDULE FOR SUPPLEMENTAL DATA SUBMISSION AND RELATED BRIEFING IN CONNECTION WITH PETITIONERS' MOTION TO ENFORCE COMPLIANCE WITH PRELIMINARY INJUNCTION (Dkt. No. 169 ) held before Magistrate Judge Pedro V. Castillo. During the hearing, Petitioners requested authorization to submit a subset of prisoner data that they contend will support their contention that Respondent impermissibly imposed categorical bars on prisoners' eligibility for home confinement, which the Court granted. Petitioners' submission of supplemental data is due by Friday, March 26, 2021. (see document for further details) Court Recorder: Zoom 3/19/21. (hr) (Entered: 03/19/2021)

03/19/2021

189 EX PARTE APPLICATION to Continue MODIFY THE CASE SCHEDULE AND AUTHORIZE DR. VENTERS SITE VISIT filed by Plaintiffs Andre Brown, Yonnedil Carror Torres, Shawn L. Fears, Felix Samuel Garcia, Vincent Reed. (Attachments: # 1 Declaration OF JAMES S. THREATT IN SUPPORT OF PETITIONERS' EX PARTE APPLICATION TO MODIFY THE CASE SCHEDULE AND AUTHORIZE DR. VENTERS SITE VISIT, # 2 Exhibit A, # 3 Exhibit

B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Proposed Order) (Rocos, Oliver) (Entered: 03/19/2021)

03/19/2021

192 NOTICE OF APPEAL to the 9th CCA filed by Intervenor Danny Fabricant. Appeal of Notice of Document Discrepancies and Order Rejecting, 182 Filed On: 3/2/21; Entered On: 3/2/21; Filing fee $ 505 billed. (mat) (Entered: 03/23/2021)

03/21/2021

190 Respondents' Opposition to Petitioners' Ex Parte Application to Modify Case Schedule and Authorize Dr. Venters' Site Visit Opposition re: EX PARTE APPLICATION to Continue MODIFY THE CASE SCHEDULE AND AUTHORIZE DR. VENTERS SITE VISIT 189 filed by Defendants Michael Carvajal, Louis Milusnic. (Attachments: # 1 Declaration of Jasmin Yang)(Yang, Jasmin) (Entered: 03/21/2021)

03/22/2021

191 ORDER GRANTING PETITIONERS EX PARTE APPLICATION TO MODIFY CASE SCHEDULE AND AUTHORIZE DR. VENTERS SITE VISIT, 189 by Judge Consuelo B. Marshall: This Court hereby GRANTS Petitioners' application and orders as follows: The discovery and other pre-trial deadlines are revised as follows: Fact and expert discovery completion no later than April 30, 2021; Rule 56 motions shall be filed no later than May 10, 2021; Opposition to Rule 56 motions shall be filed no later than May 24, 2021; Reply in support of Rule 56 motion shall be filed no later than June 1, 2021; Hearing on Rule 56 Motions set for June 15, 2021 at 10:00 a.m.; Pre-Trial Conference set for July 13, 2021 at 10:00 a.m.; and Trial to begin on August 24, 2021 at 10:00 a.m. IT IS SO ORDERED. See order for further details. (shb) (Entered: 03/22/2021)

03/23/2021

193 FILING FEE LETTER issued as to Intervenor Danny Fabricant, re Notice of Appeal to 9th Circuit Court of Appeals 192 . (mat) (Entered: 03/23/2021)

03/23/2021

194 REQUEST to Clarify Amended Scheduling Order Order on Motion to Continue,,, 191 filed by Defendants-Respondents Michael Carvajal, Louis Milusnic. (Attachments: # 1 Proposed Order) (Yang, Jasmin) (Entered: 03/23/2021)

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 Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 1 of 189 Page ID #:1

1 Terry W. Bird – Bar No. 49038 tbird@birdmarella.com
2 Dorothy Wolpert – Bar No. 73213 dwolpert@birdmarella.com
3 *Naeun Rim – Bar No. 263558 nrim@birdmarella.com
4 Shoshana E. Bannett – Bar No. 241977 sbannett@birdmarella.com
5 Christopher J. Lee – Bar No. 322140 clee@birdmarella.com
6 Jimmy Threatt – Bar No. 325317 jthreatt@birdmarella.com
7 BIRD, MARELLA, BOXER, WOLPERT, NESSIM, DROOKS,
8 LINCENBERG & RHOW, P.C. 1875 Century Park East, 23rd Floor
9 Los Angeles, California 90067-2561 Telephone: (310) 201-2100
10 Facsimile: (310) 201-2110

11 Peter J. Eliasberg – Bar No. 189110 peliasberg@aclusocal.org
12 Peter Bibring – Bar No. 223981 pbibring@aclusocal.org
13 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
14 1313 W 8th Street Los Angeles, CA 90017
15 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
16 Attorneys for Plaintiff-Petitioners
17

Donald Specter – Bar No. 83925 dspecter@prisonlaw.com
Sara Norman – Bar No. 189536 snorman@prisonlaw.com
PRISON LAW OFFICE 1917 Fifth Street Berkeley, California 94710 Telephone: (510) 280-2621 Facsimile: (510) 280-2704

18

UNITED STATES DISTRICT COURT

19

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

20 YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL
21 GARCIA; ANDRE BROWN; SHAWN L. FEARS, individually and
22 on behalf of all others similarly situated,

23

Plaintiff-Petitioners,

CASE NO. COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS

24

vs.

Immediate Relief Requested

25 LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL
26 CARVAJAL, in his capacity as Director of the Bureau of Prisons,
27 Defendant-Respondents.
28
3649388
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Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 2 of 189 Page ID #:2

1

I.

2

INTRODUCTION

3

1. The Federal Bureau of Prisons (“BOP”) is mismanaging one of the

4 worst public health catastrophes related to COVID-19 anywhere in the country—

5 and at the epicenter of the outbreak are FCI Lompoc and USP Lompoc (collectively

6 “Lompoc”), where more than 1,000 incarcerated persons have tested positive for

7 COVID.

8

2. FCI Lompoc is a low security prison located in Santa Barbara County,

9 California. Just down the road is its sister facility USP Lompoc, which houses

10 medium security individuals and is adjacent to a low security satellite camp.

11 Prisoners are often transferred among these facilities. Lompoc is the site of by far

12 the largest COVID-19 outbreak at a BOP facility. As of the morning of May 15,

13 2020, BOP reports that 1,023 of the 2,680 individuals collectively incarcerated at

14 Lompoc have tested positive for COVID-19.1

15

3. The cases at Lompoc account for more than 65 percent of cases in

16 Santa Barbara County and are so staggering that local officials are asking the State

17 of California to allow them to exclude the numbers from Lompoc in their reopening

18 criteria.2 Shockingly, these numbers, high as they seem, are still underreported.

19 Only the 963 prisoners at FCI Lompoc have undergone a round of mass testing

20 (which was completed weeks past the point where testing could have helped actually

21 prevent the virus from spreading), with 882 reporting positive—meaning that nearly

22

23

24 1 Bureau of Prisons, COVID-19 Update, https://www.bop.gov/coronavirus/ (last visited May 15, 2020).
25 2 Delaney Smith, Santa Barbara County Urges State to Exclude Lompoc Prison
26 Cases from Reopening Criteria, SANTA BARBARA INDEPENDENT, May 11, 2020,
27 https://www.independent.com/2020/05/11/santa-barbara-county-urges-state-toexclude-lompoc-prison-cases-from-reopening-criteria/.
28

3649388

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AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 3 of 189 Page ID #:3

1 100% now have the virus.3 There is no clearer indication of how ineffective BOP’s

2 COVID-19 prevention policies have been than their own statistics.

3

4. Plaintiff-Petitioners (“Petitioners”) are forced to bring this class action

4 seeking court intervention to prevent Lompoc from becoming the site of a national

5 tragedy. Respondents Michael Carvajal, the Director of the BOP, and Louis

6 Milusnic, the Warden of Lompoc, have demonstrated that they will not take the

7 measures necessary to prevent the coronavirus from converting more prison

8 sentences into death sentences without court intervention. Public health experts have

9 been clear—to prevent the disease from spreading and reduce the burden on prison

10 medical resources, Respondents must conduct testing in time for isolation to be

11 effective, provide adequate personal protective equipment (“PPE”), properly treat

12 and monitor those who are sick, and most importantly, reduce the prison population

13 to allow for adequate social distancing and sufficient access to medical care.4

14

5. As part of the Coronavirus Aid, Relief, and Economic Security

15 (“CARES”) Act, Congress modified 18 U.S.C. § 3624(c) to enable BOP to do just

16 that—section 12003(b)(2) of the CARES Act gave Respondents and the BOP the

17 broad discretion to allow home confinement and reduce crowding at prisons during

18 the COVID-19 emergency period. Despite this and the guidance of Attorney

19 General William Barr urging the BOP to immediately transfer medically “at-risk”

20 prisoners to home confinement,5 Respondents are refusing to consider home

21

22 3 Tyler Haden, Santa Barbara County Urges State to Exclude Lompoc Prison Cases from Reopening Criteria, SANTA BARBARA INDEPENDENT, May 13, 2020,
23 https://www.independent.com/2020/05/13/lompoc-prison-explodes-with-active24 covid-19-cases/ (USP Lompoc, which houses 1717 individuals, has not yet
conducted a round of mass testing and is likely to have far more than the 22 cases 25 BOP is currently reporting).
26 4 See, e.g., Exhibit 7 (“Exh. 7”, Declaration of Shamsher Samra, M.D.) ¶¶ 20–22; 27 Exhibit 8 (“Exh. 8”, Declaration of Marc Stern, M.D.) ¶¶ 18–20.
28 5 Office of the Attorney General, Prioritization of Home Confinement as

3649388

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AND PETITION FOR WRIT OF HABEAS CORPUS

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1 confinement for the vast majority of those incarcerated at Lompoc. At the same

2 time, Respondents have failed to conduct timely testing, provide adequate PPE, or

3 effectively isolate those who are infected and those who have had contact with the

4 infected. The recent round of mass testing was helpful only to prove just how

5 ineffective BOP’s policies have been. For many, the actions and inactions of

6 Respondents will lead to a death sentence. This deliberate indifference amounts to

7 cruel and unusual punishment prohibited by the Eighth Amendment.

8

6. The accounts of the named Petitioners to this action show the inhumane

9 manner in which BOP’s COVID-19 policies are being implemented at Lompoc.

10 When Petitioner Yonnedil Carror Torres, who has asthma, reported symptoms

11 consistent with coronavirus, he was ignored for days and denied medical treatment

12 until he went into respiratory shock and had to be put on a ventilator. For Petitioner

13 Vincent Reed, being “quarantined” after testing positive meant being put in solitary

14 confinement for days without medical care. Petitioner Felix Samuel Garcia is

15 scheduled to be released in the fall—but instead of using the power granted to BOP

16 by Congress under the CARES Act to release him early to home confinement,

17 thereby reducing the risk to him and to others, Respondents are arbitrarily forcing

18 him to spend two more months of his sentence at Lompoc in a hastily-converted

19 warehouse, where he is locked in a cell and not even allowed to shower. Due to the

20 burden on Lompoc’s medical resources from COVID-19-related care, Petitioner

21 Andre Brown cannot get treatment for his prostate cancer. To make matters worse,

22 Lompoc is one of the few BOP facilities that has made the unusual decision to

23 severely restrict access to phone and email for prisoners under the guise of

24

25 Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020), https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf; Office
26 of the Attorney General, Increasing Use of Home Confinement as Institutions Most
27 Affected by COVID-19 (Apr. 3, 2020), https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf.
28

3649388

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AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 5 of 189 Page ID #:5

1 preventing the spread of the virus. Petitioners have barely been able to access

2 phones and internet to ask for help from their lawyers or family members. State jails

3 and most other federal facilities have not implemented similar restrictions on

4 communication with the outside world, and in fact, some state jails are permitting

5 free phone calls due to bans on in-person visiting.6

6

7. Respondents and their ineffectual and unnecessarily cruel policy of

7 isolating positive cases in solitary confinement and unsanitary makeshift living

8 spaces has completely failed to stop or even slow the spread of the virus. Having

9 failed to prevent the outbreak, Respondents cannot now be trusted to provide those

10 who have tested positive with proper medical treatment or to protect those who

11 remain uninfected from infection. Nor are there indications that Respondents are

12 adapting quickly and learning from their mistakes. Somehow, a month and a half

13 since the first BOP prisoner in the country tested positive and a week after the

14 numbers from FCI Lompoc demonstrated how quickly the virus had spread at

15 a nearby facility with shared resources, Lompoc still has not tested the nearly 2000

16 prisoners housed at USP. Moreover, prisoners are still going without basic supplies

17 like soap, hand sanitizer, and face masks.

18

8. Petitioners cannot afford to wait and see if Respondents will be able to

19 handle the treatment of coronavirus any better than they handled the prevention of

20 its spread. Already, the media is reporting that Respondents are mishandling

21 medical treatment in the same manner in which they mishandled prevention.7

22

23 6 Sareen Habeshian, California Inmates Granted Free Calls Following Halted
24 Visitations Amid Coronavirus Fears, KTLA5, Apr. 1, 2020, https://ktla.com/news/california/california-inmates-granted-free-calls-following-
25 halted-visitations-amid-coronavirus-fears/.

26 7 Tyler Haden, Lompoc Prison Explodes with Active COVID-19 Cases, SANTA

27

BARBARA INDEPENDENT, May 13, 2020, https://www.independent.com/2020/05/13/lompoc-prison-explodes-with-active-

28 covid-19-cases/.

3649388

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AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 6 of 189 Page ID #:6

1 Unless immediate action is taken to ensure that Lompoc provides proper medical

2 care to those infected and implements measures to protect those who are not yet

3 infected, including by reducing the size of the incarcerated population, soon,

4 substantially all incarcerated people at Lompoc—many of whom are especially

5 vulnerable due to underlying medical conditions—will be infected with COVID-19.

6 More will die. Dr. Shamsher Samra, a noted physician with ample experience

7 working with incarcerated individuals, delivers an urgent warning: “BOP should

8 take immediate steps to dramatically downsize the population at Lompoc, with

9 priority given to those at high risk of harm due to their age and health status and

10 thus are likely to require a disproportionate amount of medical resources.”8

11

9. Accordingly, Petitioners Yonnedil Carror Torres, Vincent Reed, Felix

12 Samuel Garcia, Andre Brown, and Shawn L. Fears, on behalf of themselves and

13 a class of all persons incarcerated at Lompoc now and in the future, bring this action

14 for declaratory and injunctive relief, for enlargement of custody to include home

15 confinement, and ultimately, if they cannot be held in custody constitutionally, for

16 release.

17

II.

18

PARTIES

19

10. Plaintiff-Petitioner Yonnedil Carror Torres (“Petitioner Torres”) is

20 incarcerated at USP Lompoc. He is 24 years old and has suffered from chronic

21 asthma since he was a child, making him especially vulnerable to complications

22 resulting from COVID-19. On April 24, 2020, Petitioner Torres started feeling

23 seriously ill and developed COVID-19 symptoms including fever, diarrhea, and

24 body aches. For five days, Petitioner Torres asked for medical assistance. For five

25 days, he was ignored. On the sixth day, Petitioner Torres went into acute respiratory

26 shock and collapsed in his cell. Only then was he tested and confirmed to be positive

27

28 8 Exh. 7 ¶ 20 (emphasis added); accord Exh. 8 ¶ 17.

3649388

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COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 7 of 189 Page ID #:7

1 for COVID-19. Petitioner Torres was put into a medically-induced coma, intubated,

2 and put on a ventilator. As a result of his battle with COVID-19, he has suffered

3 severe lung damage. On their most recent phone call, his sister could no longer

4 recognize his voice. Petitioner Torres’s family submitted a submitted a request for

5 compassionate release on his behalf to the Warden of Lompoc on May 11, 2020.

6 They have not received a response.

7

11. Plaintiff-Petitioner Vincent Reed (“Petitioner Reed”) is incarcerated at

8 USP Lompoc. He is 53 years old and has hypertension, making him especially

9 vulnerable to complications resulting from COVID-19. Petitioner Reed’s son has

10 juvenile diabetes, is fully blind, and was recently diagnosed with kidney failure at

11 the age of 30. Petitioner Reed may be the only viable candidate to donate a kidney

12 to his son. Around March 27 or 28, 2020, Petitioner Reed began developing

13 symptoms of COVID-19. On March 30, 2020, he was tested and immediately put

14 into solitary confinement. After Petitioner Reed’s results came back positive, he was

15 left in solitary confinement for days and then transferred to an old and unsanitary

16 housing unit where—along with others who had tested positive—he languished

17 without treatment. On April 14, 2020, Mr. Reed was returned to the general

18 population. He was not tested again for COVID-19 prior to his return. Petitioner

19 Reed submitted a request for compassionate release/reduction in sentence to the

20 Warden of Lompoc on January 7, 2020. His request was rejected.

21

12. Plaintiff-Petitioner Andre Brown (“Petitioner Brown”) is incarcerated

22 at USP Lompoc. He is 55 years old, illiterate, and has learning disabilities. Because

23 Petitioner Brown is illiterate, the communications blackout at Lompoc which

24 severely restricts access to phone and email for prisoners has functionally cut him

25 off from the outside world. His conviction is currently under appeal with the Ninth

26 Circuit Court of Appeals, with argument expected in late 2020. Petitioner Brown has

27 prostate cancer which must be treated with chemotherapy or surgery. He is also

28 asthmatic, suffers from high blood pressure, and has arthritis in both wrists. Through

3649388

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Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 8 of 189 Page ID #:8

1 counsel, Petitioner Brown submitted a request for compassionate release to the

2 Warden of Lompoc on May 13, 2020. He has not received a response.

3

13. Plaintiff-Petitioner Felix Samuel Garcia (“Petitioner Garcia”) is

4 incarcerated at USP Lompoc. He is 36 years old and is set to be transferred to

5 a “halfway house” on July 7, 2020, and released from custody on November 6,

6 2020. Petitioner Garcia was originally housed in a low-security facility at FCI

7 Lompoc. In early May, he tested negative for COVID-19. Afterwards, Petitioner

8 Garcia was abruptly moved to a makeshift cell block set up in a warehouse at USP

9 Lompoc. There, he sits in a small cell with one other prisoner, under total lockdown

10 almost twenty-four hours a day. He is not allowed to shower or change into clean

11 clothes, and has been forced to wet his body with water from his sink in a last resort

12 to maintain personal hygiene. Petitioner Garcia has attempted to submit an

13 application for Compassionate Release and/or Home Confinement to the Warden of

14 Lompoc. However, since the COVID-19 outbreak in Lompoc, those incarcerated

15 have been denied access to the administrative remedy process. Staff have not been

16 accepting the forms required to initiate the process, claiming they cannot do so due

17 to the exigency of the COVID-19 pandemic.

18

14. Plaintiff-Petitioner Sean L. Fears (“Petitioner Fears”) is 50 years old

19 and incarcerated at USP Lompoc. Petitioner Fears lives in a crowded open-plan

20 dormitory with more than a hundred other prisoners, many of whom are sick. He is

21 relying only on a single mask given to him in late April to protect him from

22 infection. Over a month after the outbreak at Lompoc started, he has still not been

23 tested for COVID-19. Petitioner Fears attempted to submit an application for

24 Compassionate Release and/or Home Confinement to the Warden of Lompoc.

25 However, since the COVID-19 outbreak in Lompoc, those incarcerated have been

26 denied access to the administrative remedy process. Staff have not been accepting

27 the forms required to initiate the process, claiming they cannot do so due to the

28 exigency of the COVID-19 pandemic.

3649388

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Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 9 of 189 Page ID #:9

1

15. Respondent Louis Milusnic (“Respondent Milusnic,” “Warden

2 Milusnic,” or “Warden”) is the Warden at Lompoc. As Warden, Respondent

3 Milusnic is responsible for and oversees all day-to-day activity at Lompoc. He is in

4 charge of all aspects of the operations and functions of Lompoc. His responsibilities

5 include ensuring the safety of all in the institution and ensuring that the institution

6 operates in an orderly fashion. Warden Milusnic is aware of and has adopted and

7 enforced policies that leave Petitioners and all those similarly situated exposed to

8 infection, severe illness, and death due to COVID-19. Warden Milusnic has also

9 declined to release people who qualify under BOP and Department of Justice

10 guidance despite having the authority to do so. Warden Milusnic is the immediate

11 and physical custodian responsible for the detention of the Petitioners. He is sued in

12 her official capacity only.

13

16. Respondent Michael Carvajal is the Director of the Federal Bureau of

14 Prisons (“Respondent Carvajal,” “Director Carvajal,” or “Director”). As Director,

15 Respondent Carvajal is responsible for all BOP policies implemented at Lompoc,

16 including those pertaining to resource distribution and factors that BOP facility

17 leadership should consider in determining an incarcerated individual’s eligibility for

18 early release. His responsibilities include ensuring the safety of all in the BOP

19 system and ensuring that institutions operate in an orderly fashion. Director Carvajal

20 is aware of and has adopted and enforced policies that leave Petitioners and all those

21 similarly situated exposed to infection, severe illness, and death due to COVID-19.

22 He is sued in his official capacity only.

23

III.

24

JURISDICTION AND VENUE

25

17. This Court has jurisdiction over this action pursuant to 28 U.S.C.

26 § 2241 because Petitioners seek relief from being held in custody in violation of the

27 Eighth Amendment to the U.S. Constitution, and pursuant to 28 U.S.C.

28 § 1331 for relief from conditions of confinement that are in violation of the Eighth

3649388

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AND PETITION FOR WRIT OF HABEAS CORPUS

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1 Amendment.

2

18. The Court has subject-matter jurisdiction over this Petition pursuant to

3 28 U.S.C. § 1331 (federal question), 5 U.S.C. § 702 of the Administrative Procedure

4 Act, 28 U.S.C. § 2241 (habeas corpus) and Article I, § 9, cl. 2 of the U.S.

5 Constitution (Suspension Clause). In addition, the Court has jurisdiction to grant

6 declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201.

7

19. Venue is proper in the Central District of California pursuant to 28

8 U.S.C. § 1391(b)(2) because a substantial part of the events and omissions giving

9 rise to these claims occurred and continues to occur in this district.

10

20. This Court has personal jurisdiction over Warden Milusnic because at

11 all times relevant to this action, she has been employed at Lompoc in Santa Barbara

12 County, California, and all the actions and omissions at issue occurred at Lompoc.

13 This Court has personal jurisdiction over Director Carvajal because at all times

14 relevant to this action, he has set BOP policies and issued guidance that Respondent

15 Milusnic has applied at Lompoc in Santa Barbara County, California.

16

IV.

17

FACTUAL ALLEGATIONS

18 A. The COVID-19 Crisis

19

21. The novel coronavirus that causes COVID-19 has led to a global

20 pandemic. As of May 15, 2020, worldwide there are over 4.3 million reported

21 COVID-19 cases and 297,241 confirmed deaths.9 In the United States, the case

22 count stands at 1,412,121 and the death count at 85,990.10 In California, there are

23

24 9 World Health Org., Coronavirus disease (COVID-19) Pandemic (May 11, 2020),
25 https://www.who.int/emergencies/diseases/novel-coronavirus-2019.

26 10 Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19),

27 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited May 15, 2020).
28

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1 currently 74,936 confirmed cases of coronavirus.11 There are 5,843 individuals who

2 have been hospitalized with confirmed or suspected cases of coronavirus and 3,108

3 fatalities.12 Los Angeles County has been epicenter of the pandemic in California,

4 with 28,644 cases and 1,367 deaths.13

5

22. The virus is known to spread from person to person through respiratory

6 droplets, close personal contact, and from contact with contaminated surfaces and

7 objects.14 Infected people can spread the virus to others even if they are

8 asymptomatic, such that simply avoiding people who are coughing or visibly

9 feverish is insufficient.15

10

23. According to the CDC, people who suffer from certain underlying

11

16
medical conditions face elevated risk. Such conditions include chronic lung

12 disease, moderate to severe asthma, serious heart conditions, hypertension, high

13 blood pressure, chronic kidney disease, liver disease, diabetes, compromised

14 immune systems (such as from cancer treatment, HIV, autoimmune disease, or use

15 of immunosuppressing medication for other conditions), and severe obesity.17 One

16 analysis found mortality rates of 13.2% for patients with cardiovascular disease,

17 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and

18

19 11 California Dep’t of Public Health, COVID-19,

20 https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.asp

21 x (last visited May 15, 2020). 12 Id.
22 13 https://covid19.lacounty.gov/
23 14 Exh. 7 ¶ 4. 24 15 Exh. 7 ¶ 5.

25 16 Ctrs. for Disease Control & Prevention, Groups at Higher Risk for Severe

26 Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/peopleat-higher-risk.html (last visited May 7, 2020).
27 17 Id.
28

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1 7.6% for cancer.18

2

24. The risk of illness or death from COVID-19 is increased for older

3 populations. In a February 29, 2020 preliminary report, individuals age 50-59 had an

4 overall mortality rate of 1.3%, those age 60-69 had an overall 3.6% mortality rate,

5 and those age 70-79 had an 8% mortality rate.19

6

25. In many people, COVID-19 causes fever, cough, and shortness of

7 breath. But for people over the age of fifty or with medical conditions that increase

8 the risk of serious COVID-19 infection, shortness of breath can be severe. Most

9 people in higher-risk categories who develop serious illness will need advanced

10 support. This level of supportive care requires highly specialized equipment that is

11 in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse-to-

12 patient ratios, respiratory therapists, and intensive-care physicians.20

13

26. In patients who do not die, COVID-19 can severely damage lung tissue,

14 requiring an extensive period of rehabilitation, and in some cases, can cause

15 a permanent loss of respiratory capacity. COVID-19 may also target the heart

16 muscle, causing a medical condition called “myocarditis,” or inflammation of the

17 heart muscle. Myocarditis can affect the heart muscle and electrical system,

18 reducing the heart’s ability to pump. This reduction can lead to rapid or abnormal

19 heart rhythms in the short term, and long-term heart failure that limits exercise

20

21

22

18 World Health Org., Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19) at 12 (Feb. 28, 2020), https://www.who.int/docs/default-

23 source/coronaviruse/who- china-joint-mission-on-covid-19-final-report.pdf.

24 19 Worldometer, Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart (May 13, 2020), https://cutt.ly/ytEimUQ (data analysis based on WHO China
25 Joint Mission Report).
26 20 See Exh. 7 ¶ 7 (noting that treatment for vulnerable people infected by
27 COVID-19 may require “significant advanced support” including ventilator assistance).
28

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1 tolerance and the ability to work.21

2

27. Emerging evidence also suggests that COVID-19 can trigger an

3 over-response of the immune system, further damaging tissues in a cytokine release

4 syndrome that can result in widespread damage to other organs, including

5 permanent injury to the kidneys and neurologic injury. These complications can

6 manifest at an alarming pace. Patients can show the first symptoms of infection in as

7 little as two days after exposure, and their condition can seriously deteriorate in as

8 little as five days.22

9

28. Even some younger and healthier people who contract COVID-19 may

10 require supportive care, which includes supplemental oxygen, positive pressure

11 ventilation, and in extreme cases, extracorporeal mechanical oxygenation.23

12

29. The estimated fatality rate associated with COVID-19 has been

13 estimated to range from 0.1 to 6 percent, meaning COVID-19 may be as much as

14 35 times more fatal than seasonal influenza.24 Although many people who contract

15 COVID-19 will exhibit relatively mild symptoms, the virus will manifest in some

16 20 percent of cases as a “more severe disease requiring medical intervention and

17

18 21 Cynthia Weiss, How does COVID-19 affect the heart?, Mayo Clinic News

19 Network (Apr. 3, 2020), https://newsnetwork.mayoclinic.org/discussion/how-doescovid-19-affect-the-heart/.
20 22 Lenny Bernstein, et al., Coronavirus destroys lungs. But doctors are finding its

21 damage in kidneys, hearts and elsewhere, WASH. POST, Apr. 15, 2020,

22

https://www.washingtonpost.com/health/coronavirus-destroys-lungs-but-doctorsare-finding-its- damage-in-kidneys-hearts-and-elsewhere/2020/04/14/7ff71ee0-

23 7db1-11ea-a3ee- 13e1ae0a3571_story.html; Aria Bendix, A Day-By-Day

24

Breakdown of Coronavirus Symptoms Shows How the Disease COVID-19 Goes from Bad to Worse, BUSINESS INSIDER, Mar. 31, 2020,

25 https://www.businessinsider.com/coronavirus-covid19-day-by-day-symptoms-

26 patients-2020-2. 23 See Exh. 7 ¶ 9.
27 24 Exh. 7 ¶ 6.
28

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1 support.”25

2

30. There is no vaccine against COVID-19 and there is no known

3 medication to prevent or treat infection from COVID-19. Social distancing, or

4 remaining physically separated from known or potentially infected individuals, and

5 vigilant hygiene, including frequently and thoroughly washing hands with soap and

6 water and cleaning and disinfecting high-touch surfaces, are the only known

7 effective measures for protecting people from COVID-19.26 This is especially

8 significant because the virus can spread through people who appear asymptomatic.27

9

31. State and local officials have been taking aggressive action in

10 California. On March 4, in response to then-emerging coronavirus outbreak,

11 Governor Newsom declared a State of Emergency in California,28 doing so even

12 before the President had declared a national emergency.29 That same day, the Los

13 Angeles County Board of Supervisors and Los Angeles County Health Officer

14 declared a local and public health emergency.30 On March 19, 2020, Governor

15 Newsom issued Executive Order No. N-22-20 requiring all California residents to

16 “stay home or at their place of residence” unless the resident works in critical

17 25 Id.
18 26 Id. ¶¶ 11–12.
19 27 Id. ¶ 5. 20 28 Executive Department, State of California, Proclamation of a State of Emergency

21 (Mar. 4, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-

22 Coronavirus-SOE-Proclamation.pdf 29 See Charlie Savage, Trump Declared an Emergency Over Coronavirus. Here’s
23 What It Can Do., N.Y. TIMES, Mar. 13, 2020,

24 https://www.nytimes.com/2020/03/13/us/politics/coronavirus- national-emergencyhtml.
25 30 County of Los Angeles Public Health, County of Los Angeles Declares Local
26 Health Emergency in Response to New Novel Coronavirus Activity (Mar. 4,

27 2020),http://www.publichealth.lacounty.gov/phcommon/public/media/mediapubhpd etail.cfm?prid=2248.
28

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1 infrastructure sectors. 31

2

32. Local officials have also taken extraordinary measures aimed at

3 slowing the virus’s spread. For example, on March 19, Los Angeles Mayor issued

4 a “Safer at Home” order ordering residents of the City of Los Angeles to remain in

5 their homes with lawful exceptions for critical tasks such as securing food and

6 health, safety and medical necessities.32 Los Angeles County Health Officer Muntu

7 Davis signed a “Safer at Home” order the same day, which prohibited all indoor

8 public and private gatherings and all outdoor public and private events within

9 a confined space where at least 10 people were expected to be in attendance at the

10 same time.33 The Los Angeles County Order was strengthened on March 21, 2020,

11 to prohibit all gatherings and events, and will be extended through at least August.34

12 B. Incarcerated People and Staff Are Particularly Vulnerable.

13

33. People in environments with confined spaces such as correctional

14

15 31 Executive Department, State of California, Order No. N-22-20 (Mar. 19, 2020), 16 https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-EO-N-33-20-

17 COVID-19-HEALTH-ORDER.pdf.

18

32 Office of Los Angeles Mayor, The “Safer at Home” Emergency Order Has Been Extended (Mar. 19, 2020), https://www.lamayor.org/mayor-garcetti-angelenos-are-

19 %E2%80%98safer-home-new-emergency-order-stops-non-essential-activities-

20 outside. 33 County of Los Angeles Public Health, Safer At Home Order for Control of
21 COVID-19 (Mar. 19, 2020),

22 http://file.lacounty.gov/SDSInter/lac/1070029_COVID-19_SaferAtHome_HealthOf ficerOrder_20200319_Signed.pdf.
23 34 Colleen Shalby and Sarah Parvini, L.A. County could keep stay-at-home orders
24 in place well into summer, depending on conditions, LOS ANGELES TIMES, May 12,

25 2020, https://www.latimes.com/california/story/2020-05-12/coronavirus-beachesreopen-los-angeles-county-move-toward-new-normal; County of Los Angeles
26 Public Health, Los Angeles County Announces Two New Deaths (Mar. 23, 2020),

27 http://www.publichealth.lacounty.gov/phcommon/public/media/mediapubhpdetail.cf m?prid=2279.
28

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1 facilities, where people live, eat, and sleep in close proximity, face increased danger

2 of contracting COVID-19, as already evidenced by the rapid spread of the virus in

3 cruise ships35 and nursing homes.36 The close quarters and limited freedom of

4 movement inherent in correctional facilities makes social distancing and other

5 preventive measures difficult or impossible. Moreover, the ability of incarcerated

6 people to adopt preventative measures is completely subject to the dictates of

7 correctional officials who control the housing, schedules, sanitary supplies, and

8 nearly every other aspect of their lives.37

9

34. Correctional facilities increase the risk of rapid spread of an infectious

10 disease, like COVID-19, because of the high numbers of people with chronic, often

11 untreated, illnesses housed in a setting with minimal levels of sanitation, limited

12 access to personal hygiene, limited access to medical care, and no possibility of

13 staying at a distance from others.38

14

15 35 E.g., Jason Hanna & Melissa Alonso, CNN, Coral Princess Docks in Miami With

16

2 Dead and Several Ill of Coronavirus, After Ports Shunned it For Days (Apr. 4, 2020), https://www.cnn.com/2020/04/04/us/coral-princess-cruise-ship-docks-miami-

17 coronavirus/index.html.

18 36 E.g., Stacey Burling, Assume Coronavirus is Already There, Says a Philly Nursing Home Doctor Who Learned the Hard Way, PHILA. INQUIRER, Apr. 3, 2020,
19 https://www.inquirer.com/health/coronavirus/coronavirus-renaissance-nursing20 home- philadelphia-20200403.html; see also Suzy Khimm & Laura Strickler, NBC
News, Nursing Homes Overwhelmed By Coronavirus, (Apr. 1, 2020), 21 https://www.nbcnews.com/news/us- news/nursing-homes-overwhelmed22 coronavirus-it-impossible-us-stop-spread-n1174171.
23 37 See Exh. 8 ¶ 10 (“prisons are congregate enivronments . . . [s]ocial distancing in ways that are recommended by public health officials can be difficult, if not
24 impossible”).

25 38 See generally I.A. Binswanger et al., Prevalence of Chronic Medical Conditions

26 Among Jail and Prison Inmates in the USA Compared With the General Population, 63 J. Epidemiology & Community Health 912 (2009) (concluding that people
27 incarcerated in U.S. jails and prisons had a higher burden of most chronic medical

28 conditions than the general population, even when adjusting for sociodemographic

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1

35. The CDC has issued guidance urging prison administrators to take

2 action to prevent overcrowding of correctional and detention facilities during

3 a community outbreak.39 The CDC guidance emphasizes that social distancing is “a

4 cornerstone of reducing transmission of respiratory disease such as COVID-19.”40 It

5 calls not only for social distancing, but also measures for isolating and quarantining

6 detainees and staff who have (or are suspected of having) COVID- 19 from those

7 who do not have (or presumably do not have) the virus.

8

36. Many correctional facilities find implementation of these preventive

9 strategies challenging without a significant reduction in prison populations.

10

37. As a general matter, correctional facilities frequently lack sufficient

11 medical supplies for the population, and, in times of crisis, medical staff may cease

12 coming to the facilities. Hot water, soap, and paper towels are often in limited

13 supply. Incarcerated people themselves, rather than professional cleaners, are often

14 responsible for cleaning the facilities and often are not given appropriate supplies.

15 This means there are more people who are susceptible to infection all congregated

16 together in a location where fighting the spread of an infection is nearly

17 impossible.41

18

38. For these reasons, correctional public health experts have

19 recommended the release from custody of people most vulnerable to COVID-19.

20 Exercising authority to enlarge custody to include home confinement or release

21 detainees protects the people with the greatest vulnerability to COVID-19 from

22 differences and alcohol consumption).
23 39 Ctrs. for Disease Control and Prevention, Interim Guidance on Management of
24 Coronavirus Disease 2019 (COVID-19) in CORRECTIONAL AND DETENTION
25 FACILITIES (CDC GUIDANCE) (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-
26 detention/guidance-correctional-detention.html.

27 40 Id.

28 41 See Exh. 8 ¶¶ 10–12.

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1 transmission of the virus, and it also allows for greater risk mitigation for all people

2 held or working in a prison, jail, or detention center. Release of the most vulnerable

3 people from custody also reduces the burden on the region’s health-care

4 infrastructure by reducing the likelihood that an overwhelming number of people

5 will become seriously ill from COVID-19 at the same time. As Dr. Samra observes:

6 “BOP should take immediate steps to dramatically downsize the population at

7 Lompoc, with priority given to those at high risk of harm due to their age and health

8 status and thus are likely to require a disproportionate amount of medical

9 resources.”42

10

39. Courts have responded to this urgent call to reduce incarcerated

11 populations. On March 24, 2020, Presiding Judge Kevin C. Brazile of the Superior

12 Court of California, County of Los Angeles, announced an expedited process for the

13 release of individuals jailed while awaiting trial.43 By April 13, 2020, the Los

14 Angeles County jail had released 700 individuals.44 On May 1, 2020, Judge Brazile

15 announced that a further 250 individuals had been released on their own

16 recognizance pursuant to the Court’s continued efforts “to protect public safety

17 while achieving social distancing inside . . . the jail system.”45 Between the onset of

18

19 42 Exh. 7 ¶ 20.

20 43 Los Angeles Superior Court, Superior Court of Los Angeles County Orders Release of County Jail Inmates Awaiting Trial After Justice Partners Reach
21 Agreement (Mar. 24, 2020),
22 http://www.lacourt.org/newsmedia/uploads/142020324174155NR_Justice_Partners _Request_March_24_2020_FINAL.pdf.
23 44 Los Angeles Superior Court, Superior Court of Los Angeles County Continues to
24 Work With Justice Partners On Jail Release of Adults (Apr. 13, 2020),
25 http://www.lacourt.org/newsmedia/uploads/14202041491026NR_Release_Orders_0 4_13_20.pdf.
26 45 Los Angeles Superior Court, More Than 250 People Released So Far From L.A.
27 County Jail System Under Statewide Emergency Bail Schedule (May 1, 2020),
28 http://www.lacourt.org/newsmedia/uploads/14202051114247NR_Bail_Order_05_0

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1 COVID-19 and May 13, 2020, Los Angeles lowered its county jail population from

2 17,076 to 11,813, a reduction of 31%.46 High courts in other states have issued

3 similar orders aimed at reducing state prison populations.47

4

40. Officials in California have echoed the calls to release prisoners and

5 facilitate social distancing. On March 31, 2020, the California Department of

6 Corrections and Rehabilitation announced that it would be transitioning nearly 3,500

7 non-violent inmates to parole or supervised release in order to “mitigate the spread

8 of COVID-19 . . . [and] increase physical distancing, and assist . . . with isolation

9 and quarantine efforts for suspected or positive COVID-19 cases[.]”.48 As of

10 April 13, all of these individuals had been released.49

11

12 1_20(003).pdf.

13 46 Vera Institute of Justice, COVID-19: Criminal Justice Responses to the Coronavirus Pandemic, https://www.vera.org/projects/covid-19-criminal-justice-
14 responses/covid-19-data (last visited May 15, 2020).
15 47 See, e.g., In re: The Petition of the Pennsylvania Prison Society et al., No. 70
16 MM 2020 (Pa. Apr. 3, 2020), https://law.justia.com/cases/pennsylvania/supremecourt/2020/70- mm-2020.html (Pennsylvania Supreme Court ordered the chief judge
17 of all counties to “immediately” engage in a review of the “current capabilities of
18 their county correctional institutions . . . to address the spread of COVID-19,” “to ensure that the county correctional institutions in their districts address the threat of
19 COVID-19,” as necessary “to identify individuals of incarcerated persons for
20 potential release” and “to undertake efforts to limit the introduction of new inmates into the county prison system.”); Comm. for Pub. Counsel Servs. v. Chief Justice of
21 the Trial Court, No. SJC-12926 (Mass. Apr. 3, 2020),
22 https://www.mass.gov/files/documents/2020/04/03/12926.pdf (Massachusetts Supreme Court ruled that pre-trial detainees not charged with certain violent
23 offenses, as well as incarcerated individuals held on technical probation and parole
24 violations, is entitled to a rebuttable presumption of release).

25 48 California Department of Corrections and Rehabilitation, CDCR Announces Plan to Further Protect Staff and Inmates from the Spread of COVID-19 in State Prisons
26 (Mar. 31, 2020), https://www.cdcr.ca.gov/news/2020/03/31/cdcr-announces-plan-to27 further-protect-staff-and-inmates-from-the-spread-of-covid-19-in-state-prisons/ 28 49 California Department of Corrections and Rehabilitation, Frequently Asked

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1

41. Had Respondents similarly reduced the population at Lompoc as called

2 for by the science, the catastrophe we are faced with today may have been avoided.

3 Because they did not, the outbreak at Lompoc is now out of control. This not only

4 poses an unacceptable risk to the health and safety of the incarcerated, but also

5 burdens local hospitals and thus endangers the broader community. Correctional

6 facilities lack adequate medical facilities to treat serious COVID-19 cases, so an

7 outbreak in a prison could overwhelm local hospitals. And as correctional staff enter

8 and leave the facility, they will carry the virus with them. Like the incarcerated

9 people in the facilities where they work, correctional officers face an increased risk

10 of COVID-19 exposure because they are less able to engage in social distancing and

11 because of the shortage of personal protective equipment, also known as PPE.

12 Indeed, as of May 3, the BOP had reported 498 confirmed past and present

13 infections among its prison staff nationwide.50

14

42. Given these dangers, on an accelerating basis since mid-March of this

15 year, courts in this Circuit and across the country have ordered the release of

16 prisoners and detainees in response to the COVID-19 crisis.51

17

18 Questions for Plan on Expedited Release and Increased Physical Space Within State Prisons, https://www.cdcr.ca.gov/covid19/frequently-asked-questions-for-plan-on-
19 expedited-release-and-increased-physical-space-within-state-prisons/ (last visited

20 May 15, 2020).

21 50 See Fed. Bureau of Prisons, COVID- 19, https://www.bop.gov/coronavirus/ (last visited May 4, 2020).
22 51 See, e.g., Arriaga Reyes. v. Decker, No. 2:20-cv-03600 (D.N.J. Apr. 12, 2020) 23 (ordering five petitions for immediate release of ICE detainees from New Jersey

24 facilities); Basank v. Decker, ---F. Supp.3d---, 2020 WL1481503 (S.D.N.Y. Mar. 26, 2020) (ordering release of ten individuals detained by ICE housed in New Jersey
25 county jails because of preexisting medical conditions); United States v. Rodriguez,

26 No. 03-CR-271 (E.D. Pa. Apr. 1, 2020) (granting motion for compassionate release where the presence of COVID-19, the inmate’s health conditions, the proximity to
27 his release date, and his demonstration of rehabilitation created extraordinary and

28 compelling reasons justifying release); United States v. Colvin, No. 3:19-CR-179,

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1

43. When the dangers of COVID-19 have reached a level where a prison is

2 no longer able to incarcerate its population in constitutional conditions, courts have

3 granted emergency habeas relief for entire classes of prisoners to be evaluated for

4 enlargement of custody on an accelerated basis.52

5 C. Lompoc’s Failure to Slow the Spread of its COVID-19 Outbreak Has

6

Allowed the Virus to Spread Like Wildfire.

7

44. The numbers speak for themselves: Respondents have lost control of

8 the COVID-19 outbreak at Lompoc entirely. There are over 870 positive COVID-19

9 cases at the Lompoc among a population of approximately 2,600, almost twice as

10 many cases as the whole of Santa Barbara County—with a population of almost

11 450,000—combined.

12

45. This sad reality is borne out by the information prisoners have relayed

13 to family members and friends despite Lompoc’s best efforts to keep them silenced.

14 Since April 16, 2020, the prison has cut off most communications with the outside

15 world, forcing prisoners to communicate with their loved ones only through letters

16 and, since around May 9, sporadic five-minute phone calls.

17

46. Counsel for Petitioners have attempted to arrange legal calls with eight

18 2020 WL 1613943 (D. Conn. 2020) (waiving exhaustion requirement and granting
19 motion or compassionate release for vulnerable inmate at FDC Philadelphia where

20 “the risks faced by the Defendant will be minimized by her immediate release to home, where she will quarantine herself”); Coronel v. Decker, ---F. Supp. 3d---,
21 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) (granting release of four detainees

22 with medical conditions that render them particularly vulnerable to severe illness or death if infected by COVID-19).
23 52 Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882, at *10 (N.D. Ohio
24 Apr. 22, 2020), appeal filed, (6th Cir. Apr. 27, 2020) (granting in part emergency

25 motion and ordering FCI Elkton to evaluate all prisoners for enlargement of custody); Martinez-Brooks v. Easter, 3-20-cv-00569-MPS, 2020 WL 2405350, at *32
26 (D. Conn., May 12, 2020) (granting in part temporary restraining order and ordering

27 FCI Danbury to evaluate prisoners with COVID-19 risk factors for home confinement and compassionate release).
28

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1 prisoners incarcerated at FCI Lompoc and USP Lompoc who had been identified to

2 counsel by their family members and friends as seeking representation in this

3 action. Counsel have not spoken with any of them. Although several calls were

4 initially scheduled, they were each abruptly cancelled by the BOP. As of now, there

5 are no legal calls scheduled with any of the eight prisoners.53

6

47. Whatever Respondents may say, the facts demonstrate that they had no

7 strategy at all for addressing the virus. As late as late March and early April, when

8 the world outside had already shuttered schools and businesses for weeks, Lompoc

9 simply ignored sick prisoners and left them in place to infect others, or approached

10 isolation by simply hauling infected people into solitary confinement (the Special

11 Housing Unit, or “SHU”)—something ordinarily done as punishment—to forget

12 about them entirely. Prisoners displaying symptoms of COVID-19 were left in

13 solitary with no medical attention for days at a time.54 This deterred other prisoners

14 from reporting symptoms lest they also be placed into solitary. Afterwards, as the

15 number of positive cases grew, prison authorities began to isolate the infected in

16 a variety of temporary housing units, such as dormitories that had previously been

17 closed due to mold contamination,55 and hastily-converted warehouses.56 Prisoners

18 were also moved from minimum-and-low security facilities with communal

19 dormitories to cells at USP Lompoc’s medium-security facility.57 All of Lompoc’s

20 prisoner housing units were placed on total lockdown, confining prisoners to their

21 cells or dormitories for most of the day. This heavy-handed isolation strategy has

22 been a complete failure, for four reasons.

23

24 53 Exhibit 10 (“Declaration of Jimmy Threatt”) ¶ 2. 25 54 Exhibit 2 (“Exh. 2”, Declaration of Joanna Perales) ¶ 6. 26 55 Id. ¶ 7.

27 56 Exhibit 3 (“Exh. 3”, Declaration of Graciela Zavala-Garcia) ¶ 4.

28 57 Exh. 2 ¶ 7

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1

1. Even with Many Prisoners Moved to Temporary Housing, Social

2

Distancing is Impossible in Lompoc’s Dormitories and Cells

3

48. Hundreds of people held at the Lompoc USP camps and at several units

4 of FCI are housed in open-plan dormitories for anywhere from 150 to 250 prisoners.

5 In these dormitories, there are no internal walls, and the prisoners sleep on bunk

6 beds that are no more than 2-to-3 feet from each other. There is no air conditioning

7 and ventilation is extremely poor. Everyone shares six toilets, six showers, and one

8 water fountain.58 Over a hundred prisoners must stand in line outside to pick up their

9 meals, and 25-30 people stand in line outside a tiny five-foot-by-five-foot room to

10 pick up their medication.

11

49. Things are not much better for the USP Lompoc prisoners who live in

12 cells. Due to the influx of prisoners from the dormitories, tiny single-occupancy

13 cells are now occupied by two prisoners at a time.59 Due to the facility-wide

14 lockdown, prisoners are unable to leave their cells to take a shower or change into

15 clean clothes.

16

2. Unsanitary Conditions in Temporary Housing Units Offer Fertile

17

Ground for the Other Diseases to Spread.

18

50. The conditions in the temporary housing units are appalling and are

19 putting the lives of those who have tested positive in further danger. Unit H—

20 a dormitory that had been closed three years prior due to mold contamination—was

21 reopened filled with prisoners without proper cleaning, and prisoners were forced to

22 sleep on mattresses which the guards had scattered across the dirty floor.60 In the

23 warehouses that had been hastily converted into blocks of double-occupancy cells,

24 prisoners were not permitted to leave their cells to shower, and were not given clean

25
26 58 See Exhibit 5 (“Exh. 5”, Declaration of Nema Zayed Fears) ¶ 4. 59 Exhibit 1 (“Exh. 1”, Declaration of Kiara Carror) ¶ 5.
27 60 Exh. 3 ¶ 5.
28

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1 clothes.61

2

3. The Frequent Movement of Prisoners Combined with Lack of

3

Adequate Testing Is Accelerating the Spread of the Virus.

4

51. As discussed supra, Lompoc’s heavy-handed isolation strategy has

5 resulted in a large numbers of prisoners moving from minimum and low security

6 dormitories to temporary housing units and prison cells. In a belated effort to

7 segregate Lompoc’s infected population from its healthy and recovered population,

8 Respondents are moving inmates back and forth between housing units, transferring

9 them from one place to another when they are sick, and then either sending them

10 back or transferring them to yet another place when they are deemed “recovered.”

11

52. Due to Respondents’ inadequate testing policies, their isolation strategy

12 has been rendered completely ineffectual. Over a month since its outbreak initially

13 started, Lompoc still does not have the capacity to fully test its entire population.62

14 Instead, Respondents do not test prisoners at USP Lompoc until they display

15 symptoms,63 and sometimes not until several days after that, when their health has

16 already deteriorated precipitously.64 In addition, prisoners are not re-tested and

17 confirmed to be negative before being returned to housing units meant to be

18 populated with non-infected prisoners, a practice Dr. Samra explicitly cites as

19 “problematic.”65 Some prisoners have simply been never tested at all.66

20

21 61 Id. ¶ 7.

22 62 Taylor Hadsen, Lompoc Prison Explodes with Active COVID-19 Cases, SANTA BARBARA INDEPENDENT, May 13, 2020,
23 https://www.independent.com/2020/05/13/lompoc-prison-explodes-with-active-
24 covid-19-cases/.
25 63 Exh. 2 ¶ 6. 26 64 Exh. 1 ¶ 8.
65 Exh. 2 ¶ 9; Exh. 7 ¶ 16. 27
66 Exh. 5 ¶ 6. 28

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1

53. Infected individuals can spread COVID-19 even when they are

2 completely asymptomatic.67 As a result, the lack of asymptomatic testing and re-

3 entry testing means that Lompoc is likely allowing infected prisoners to remain with

4 healthy populations and spread the virus, and then allowing prisoners who are not

5 fully recovered but asymptomatic to return to those populations and spread the virus

6 again.

7

4. Lompoc’s Inadequate Efforts at Isolation Ignore Other

8

Fundamental Areas of Infection Prevention.

9

54. As Lompoc isolates its prisoners in crowded, unsanitary confines, it has

10 failed to take any of the most basic measures necessary to ensure that the virus does

11 not spread in these confines unabated. Since the outbreak started, Lompoc has

12 distributed only one face mask to prisoners, who have been forced to reuse it

13 indefinitely.68 Not only do prisoners not have access to hand sanitizer, there are

14 often shortages of soap.69 Due to the total lockdown, many prisoners are not even

15 able to use the shower.70 Given that the pervasive lack of testing at USP Lompoc

16 likely means that even “healthy” housing units have at least a few infected prisoners,

17 this lack of baseline protective measures more or less ensures that those few will

18 eventually becoming many—as the alarming rate of growth in positive cases at

19 Lompoc is demonstrating.

20 D. Lompoc Is Incapable of Providing Adequate Medical Care for

21

COVID-19 Patients, Posing an Unconstitutional Threat Both to the

22

Incarcerated and to the Local Community.

23

55. Providing adequate medical care in the face of an outbreak of this size

24

25 67 Exh. 7 ¶ 16.
26 68 See Exh. 5 ¶ 5; Exh. 3 ¶ 6. 69 Exh. 3 ¶ 6; Exh. 2 ¶¶ 8, 10.
27 70 Exh. 3 ¶ 5; Exh. 2 ¶ 8.
28

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1 would be challenging for any community. For a prison like Lompoc, it is an

2 impossibility. The medical facilities at Lompoc consist of only “a small medical bay

3 capable of caring for a few patients.”71 BOP claims that Lompoc’s medical

4 capabilities have been supplemented with a newly-constructed Hospital Care Unit

5 (“HCU”). In reality, the 20-bed HCU—yet another converted warehouse—has been

6 little more than an exercise in public relations: the HCU lacks any ventilators, and is

7 “not properly equipped to handle serious COVID-19 cases.”72 BOP has not yet

8 actually staffed the HCA with doctors and nurses, and local health officials have

9 remarked that as of May 8, it was “unclear whether the [HCU] is in fact

10 operational.”73 In lieu of adequate care —rendered impossible due to a serious lack

11 of medical resources—prison authorities at Lompoc have adopted a chilling

12 indifference towards those affected by COVID-19.

13

56. Petitioner Yonnedil Carror Torres shares a tiny, single-occupancy cell

14 with a cellmate at USP Lompoc.74 Petitioner Torres suffers from chronic asthma,

15 which makes him especially vulnerable to COVID-19.75 On April 24, 2020, he

16 wrote to his family that he was feeling very sick and was concerned that he may

17 have COVID-19.76 Six days later, Petitioner Torres’s family received a letter from

18

19 71 Taylor Hayden, Inmates and Families Panic as Lompoc Prison Goes Into Lockdown, SANTA BARBARA INDEPENDENT, Apr. 22, 2020,
20 https://www.independent.com/2020/04/22/inmates-and-families-panic-as-lompoc-
21 prison-goes-into-lockdown/

22 72 Taylor Hayden, Lompoc Prison Explodes with Active COVID-19 Cases, SANTA BARBARA INDEPENDENT, May 13, 2020,
23 https://www.independent.com/2020/05/13/lompoc-prison-explodes-with-active-
24 covid-19-cases/.
25 73 Id. 26 74 Exh. 1 ¶ 5.
75 Id. ¶ 3. 27
76 Id. ¶ 6. 28

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1 his cellmate saying that he had went into acute respiratory failure and collapsed in

2 his cell.77 Mr. Torres had suffered from fever, diarrhea, and body aches, and had

3 been asking the guards for medical assistance for five days, but was completely

4 ignored.78 He was only taken to the hospital after every prisoner in his block began

5 to bang on their cell doors in unison to demand that he be taken care of.79 At the

6 hospital, he was put into a medically-induced coma, intubated, and put on

7 a ventilator.80 Mr. Torres suffered serious lung damage from COVID-19 which has

8 severely deteriorated his lung capacity.81

9

57. The story of Mr. Torres is not an isolated incident but part of a larger

10 pattern of deliberate indifference to that shocks the conscience: at Lompoc, medical

11 care is now “limited or nonexistent[,]”82 and prisoners with COVID-19 are not

12 tested or treated until they hit “rock bottom.”83 Even when they test positive, they

13 are not immediately isolated from other prisoners, sometimes being left in

14 dormitories housing approximately 100 people for as long as 14 days.84

15

58. Even when Respondents actually identify COVID-19 patients, the

16 treatment they provide resembles prison discipline more than medical care. On

17 March 27 or 28, 2020, Petitioner Reed began exhibiting symptoms of COVID-19.85

18 Respondents waited until March 30, 2020to test him, and immediately placed him in

19

20 77 Id. ¶ 7.

21 78 Id.

22 79 Id. ¶ 8.

23 80 Id.

24 81 Id. ¶ 10.

25 82 Exhibit 6 (“Exh. 6”, Declaration of Darwin P. Roberts) ¶ 7.
26 83 Id. ¶ 11. 84 Exh. 6 ¶¶ 7-8.
27 85 Exh. 2 ¶ 5.
28

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1 solitary confinement while they awaited results.86 On March 31, 2020, Petitioner

2 Reed received a temperature and symptom check from a doctor.87 After that,

3 Respondents left him to languish in solitary confinement, and did not allow him to

4 see a doctor again until April 7, 2020.88 Respondents’ approach of throwing people

5 like Mr. Reed into solitary confinement when they display COVID-19 symptoms

6 has incentivized prisoners at Lompoc to hide symptoms, even when they feel sick.89

7

59. As Dr. Samra notes, “the allegations” “show[] that virtually no effort is

8 being made at Lompoc to monitor or treat prisoners, with staff waiting until the last

9 minute to intervene,” and also has significant ripple effects on even regular medical

10 care for prisoners with conditions unrelated to COVID-19.90 This is precisely what

11 is happening inside Lompoc, as prison staff have stopped accepting requests for

12 medical care from prisoners since the outbreak started.91 As a result, Petitioner

13 Brown—who requires chemotherapy or surgery to treat his prostate cancer—and

14 others similarly situated have been rendered unable to obtain the care they need to

15 survive.92

16

60. As the outbreak at Lompoc rages on and the prison’s medical resources

17 deplete further still, the risk of infection to staff who go home to the community will

18 continue to rise. Every prisoner at a local hospital, in turn, must be guarded 24 hours

19 a day by two correctional officers on eight-hour shifts, meaning each of these

20 officers are returning to their homes and surrounding communities after long-term

21

22 86 Id. ¶ 6.

23 87 Id.

24 88 Id.

25 89 Id. ¶ 6.
26 90 Exh. 7 ¶¶ 18, 21. 91 Exh. 5 ¶ 7.
27 92 See Exhibit 4 (Declaration of Verna Wefald) ¶ 6
28

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1 exposure to coronavirus patients.93

2

61. The only solution is to reduce the prison population to the point where

3 Lompoc’s medical resources become sufficient to provide adequate care for those

4 who remain.

5 E. The Efforts of the Bureau of Prisons Are Inadequate.

6

62. The BOP has failed to respond effectively to the COVID-19 pandemic.

7 The BOP failed to anticipate and prepare for the magnitude of the threat that

8 COVID-19 poses to its own staff and the people it detains; it then failed to respond

9 in any meaningful way to initial signs of uncontrolled outbreaks at several of its

10 facilities across the country, including Lompoc; and it has continued to fail to

11 implement even the baseline measures that would assure the safety of its own staff,

12 of Petitioners and their fellow class members and others incarcerated by the BOP,

13 and of the communities into which staff and others travel on a daily basis.

14

63. The BOP’s preparations were inadequate from the start. Initial

15 guidance from the BOP was not issued until March 9, and it addressed only the

16 possibility of telework for some employees at an agency where the vast majority of

17 workers must physically appear at facilities to do their jobs, and it mentioned

18 restrictions only for people who had traveled to already-impacted countries.94

19

64. Moreover, the BOP did not make any changes to protocols that call for

20 prisoners to purchase their own cleaning supplies from commissary—preventing

21 many indigent and poor prisoners from being able to buy those supplies—and for

22 them to maintain responsibility for cleaning and sanitizing their spaces (whether

23 they have supplies or not).95

24 93 Id.
25 94 See Federal Bureau of Prisons, Coronavirus Disease 2019 (COVID-19):
26 Screening and Leave Guidance (May 9, 2020),

27 https://cdn.govexec.com/media/gbc/docs/pdfs_edit/031020cb.pdf.

28 95 See, e.g., Federal Bureau of Prisons, Inmate Information Handbook for FCI

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1

65. In fact, as late as March 26—weeks after many cities and states had

2 closed restaurants and non-essential businesses, restricted travel, and ordered people

3 to shelter in place—the BOP Director announced that the BOP had merely taken an

4 inventory of soap, rather than taken steps to distribute it at no cost or even at

5 a reduced cost.96

6

66. Among other failures that contributed to spread at BOP facilities,

7 officers reported that even as of late March, they were given only gloves—not

8 masks, face shields, or other PPE—when interacting with prisoners sick enough to

9 require transport to the hospital.97 Those same officers were ordered back to the job

10 in defiance of CDC guidance that called for self-isolation by correctional staff who

11 had been exposed.98

12

67. Unicor, an entity that runs prisoner work programs for the BOP,

13 continued operating throughout the pandemic and did not began distributing masks

14 to prisoner workers and correctional officers until about April 2, 2020.99

15

16 Elkton, Ohio (Nov. 10, 2012), https://www.bop.gov/locations/institutions/elk/ELK_aohandbook.pdf.
17 96 That day the BOP Director issued a statement that “all cleaning, sanitation, and 18 medical supplies have been inventoried. Ample supplies are on hand and ready to be
19 distributed or moved to any facility as deemed necessary.” Federal Bureau of Prisons, Statement from BOP Director (Mar. 26, 2020),
20 https://www.bop.gov/resources/news/20200326_statement_from_director.jsp.

21 97 Joseph Neff & Keri Blakinger, The Marshall Project, Federal Prisons Agency

22

“Put Staff in Harm’s Way” of Coronavirus: Orders at Oakdale in Louisiana Help Explain COVID-19 Spread (Apr. 3, 2020),

23 https://www.themarshallproject.org/2020/04/03/federal-prisons-agency- put-staff-in-

24 harm-s-way-of-coronavirus. 98 Id.
25 99 Cary Aspinwall, Keri Blakinger, & Joseph Neff, The Marshall Project, Federal
26 Prison Factories Kept Running as Coronavirus Spread (Apr. 10, 2020),

27 https://www.themarshallproject.org/2020/04/10/federal-prison-factories-keptrunning-as- coronavirus-spread.
28

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1

68. Across facilities, the BOP has been “scrambling” to address staffing

2 and resource needs. Despite this, the BOP has continued to limit the number of

3 contractors who can supply PPE, does not have enough tests, and has been sued by

4 its own staff for requiring them to work in hazardous working conditions.100

5

69. When the BOP loses control at a facility, dozens of prisoners must go

6 to local hospitals, straining the local healthcare infrastructure, as well.Even those

7 figures are almost certainly an undercount. The BOP has repeatedly understated the

8 scope of the problem and refused to take steps to assess the situation transparently.

9 For example, the BOP has been artificially reducing their number of reported

10 positive cases by classifying individuals who previously tested positive for

11 COVID-19 but no longer showing symptoms as “recovered” and removing them

12 from the count of positive cases, without re-testing them to confirm that the virus is

13 no longer present in their bodies.101

14

70. BOP’s under-reporting of the outbreak at FCI Elkton provides another

15 stark example of their lack of transparency. As of April 6, the BOP had reported

16 eight prisoners and one staff had tested positive at FCI Elkton.102 Press accounts,

17 however, reported that medical staffing had fallen to fifty percent of capacity, and

18 that three prisoners had already died as of April 6.103 The full scope of the problem

19 did not become clear until a federal judge ordered the facility to increase testing,

20
21 100 Luke Barr, ABC News, Federal Prisons Facing Shortages of Resources Amid Coronavirus Outbreak (Apr. 1, 2020), https://abcnews.go.com/Health/federal-
22 prisons-facing-shortages-resources- amid-coronavirus-outbreak/story?id=69920966.

23 101 A “problematic” practice according to Dr. Samra. Exh. 7 ¶ 16.

24 102 Id.

25 103 WKYC, Ohio Gov. Mike DeWine Authorized Ohio National Guard to Assist Elkton Prison (Apr. 6, 2020),
26 https://www.wkyc.com/article/news/health/coronavirus/ohio-gov-mike-dewine-
27 authorizes-ohio-national-guard-to-assist-elkton-prison/95-d620f3c6-c560-486f9eac- ebce7c09d4e7.
28

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1 after the BOP admitted that it only had 55 tests on hand for a facility of more than

2 2,400 prisoners.104

3

71. Conditions had already deteriorated so thoroughly that Ohio Governor

4 Mike DeWine called in the state’s National Guard to FCI Elkton, a federal prison.105

5 At the press conference announcing that decision, Governor DeWine called on the

6 BOP to stop sending new prisoners to Elkton.106 And the accuracy of the BOP’s

7 reporting of COVID-19 cases in Elkton is in doubt.107

8

72. Ultimately, the U.S. District Court for the Northern District of Ohio

9 ordered enlargement of custody for medically vulnerable prisoners at FCI Elkton

10 pending resolution of a class habeas petition on the merits, because of the outbreak

11 already raging at the facility.108

12

13

104 Cleveland.com, Judge grills federal prisons lawyer on lack of coronavirus tests at Ohio facility in wake of Trump’s claim that ‘anybody’ can get tested (Apr. 18,

14 2020), https://www.cleveland.com/court-justice/2020/04/judge-grills-federal-

15

prisons-lawyer-on-lack-of-coronavirus-tests-at-ohio-facility-in-wake-of-trumpsclaim-that-anybody-can-get-tested.html.

16 105 WKYC, Ohio Gov. Mike DeWine Authorized Ohio National Guard to Assist

17 Elkton Prison (Apr. 6, 2020),

18

https://www.wkyc.com/article/news/health/coronavirus/ohio-gov-mike-dewineauthorizes-ohio-national-guard-to-assist-elkton-prison/95-d620f3c6-c560-486f-

19 9eac- ebce7c09d4e7.

20 106 Cory Shaffer, Cleveland.com, Ohio National Guard Will Assist With Response at Elkton Federal Prison, Cleveland.com (Apr. 6, 2020),
21 https://www.cleveland.com/coronavirus/2020/04/ohio-national-guard-will-assist-
22 with-coronavirus-response-at-elkton-federal-prison.html; see also Brandon Brown, WFMJ, Sen. Portman Urges Prisoners Not to be Transferred to FCI Elkton (Apr. 6,
23 2020), https://www.wfmj.com/story/41979544/sen-portman-urges-prisoners-not-be-
24 transferred-to-fci-elkton.

25 107 WKBN, Elkton Union President Reports Different COVID-19 Stats Than Federal Bureau of Prisons (Apr. 9, 2020),
26 https://www.wkbn.com/news/coronavirus/elkton-union-president-reports-different27 covid-19-stats-than-federal-bureau-of-prisons/. 28 108 Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882, at *10 (N.D. Ohio

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1

73. Such conditions at numerous facilities across the country have led BOP

2 employees, including corrections officers, to file a complaint with the Occupational

3 Safety and Health Administration (OSHA) alleging unsafe conditions at numerous

4 federal prisons nationwide, including Lompoc. Among other things, the officers’

5 OSHA complaint points to the BOP having “directed staff through the Bureau of

6 Prisons who have come in contact with, or been in close proximity to, prisoners who

7 show or have shown symptoms of COVID-19, to report to work and not be

8 self-quarantined for 14 days per the CDC guidelines.” It also complains of the BOP

9 having failed to undertake any workplace or administrative controls to address

10 transmission, to require social distancing or other measures in the CDC guidance, or

11 to provide sufficient PPE.109

12

74. In apparent response, the BOP released a short document titled

13 “Correcting Myths and Misinformation about BOP and COVID-19.”110 In

14 responding to the assertion that staff who had been in contact with prisoners who

15 showed symptoms of COVID-19 still had to come to work, the BOP simply

16 confirmed that such employees were required to come to work, with masks.111

17 18 Apr. 22, 2020).
109 See U.S. Dep’t of Labor, Notice of Alleged Safety or Health Hazards (March 31, 19 2020),

20 https://www.afge.org/globalassets/documents/generalreports/coronavirus/4/osha-7form-national-complaint.pdf.
21 110 See Fed. Bureau of Prisons, Correcting Myths and Misinformation About BOP
22 And COVID-19 (Apr. 11, 2020),

23 https://www.bop.gov/coronavirus/docs/correcting_myths_and_misinformation_bop_ covid19.pdf.
24 111 Id. at 3 (“In keeping with CDC ‘Guidance for Safety Practices for Critical 25 Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or

26 Confirmed COVID-19,’ the BOP performs pre-screening of all employees reporting to work and requires exposed workers to wear a mask for 14 days after last
27 exposure. They are also expected to perform regular self-monitoring for symptoms,

28 practice social distancing and to disinfect and clean their work spaces. Anyone who

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1

75. CARES Act, signed into law on March 27, makes funding available for

2 federal prisons to purchase PPE and test kits for COVID-19 in addition to

3 authorizing the Department of Justice to lengthen the maximum amount of time that

4 a prisoner can be placed in home confinement during the pandemic, as discussed

5 above.112 Acting under that authority, Attorney General Barr made a finding that

6 emergency conditions are materially affecting the functioning of the BOP, and on

7 April 3 he directed Respondent Carvajal to review prisoners with COVID-19 risk

8 factors to determine their eligibility for home confinement, stating that the BOP’s

9 efforts to prevent COVID-19 from entering BOP facilities and infecting prisoners

10 have “not been perfectly successful at all institutions.”113

11

76. Attorney General Barr also released guidance in the form of a series of

12 letters suggesting that some BOP prisoners should be released.114 Those letters

13 merely encourage the BOP to exercise discretion that it has declined to use, and they

14 do not actually direct the release of categories of prisoners, much less on a scale that

15 would allow for safe social distancing in the facilities or with the speed that the

16 health crisis requires. Of the relatively small number of people released, the BOP

17 has not reported the number who subsequently died.

18

77. The BOP’s April 22 guidance gave wardens virtually unchecked

19 discretion to deny a request for release and imposes unnecessary and arbitrary

20 barriers on prisoners seeking release. For example, pursuant to the BOP’s guidance

21 from April 22: (i) prisoners must have had no disciplinary infractions of any kind for

22 develops signs or symptoms of illness are sent home.”).
23 112 CARES Act, Pub. L. No. 116-136, § 12003(b), 134 Stat. 281 (2020).
24 113 Office of the Attorney General, Increasing Use of Home Confinement at 25 Institutions Most Affected by COVID-10 (Apr. 3, 2020),

26 https://www.justice.gov/file/1266661/download.

27

114 See US Dep’t of Justice, Memoranda For Director of Bureau Prisons from Attorney General Barr (Mar. 26, 2020 & Apr. 3, 2020),

28 https://www.justice.gov/coronavirus.

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1 12 months; (ii) prisoners must provide verification that they would have a lower risk

2 of contracting COVID-19 outside the prison than inside of it, and, (iii) prisoners

3 with any on-going medical care must show their medical needs can be met outside

4 the prison, and that they have a 90-day supply of prescribed medications. After

5 reports of positive cases continued to explode, on May 8, 2020, BOP amended this

6 guidance to relax a few criteria, but it continues to be far more restrictive than the

7 recommendations proposed by Attorney General Barr.

8

78. The BOP’s April 22 guidance gives wardens virtually unchecked

9 discretion to deny a request for release and imposes unnecessary and impractical

10 barriers on prisoners seeking release. For example, pursuant to the BOP’s guidance:

11 (i) prisoners must have had no disciplinary infractions of any kind for 12 months;

12 (ii) prisoners must provide verification that they would have a lower risk of

13 contracting COVID-19 outside the prison than inside of it, and, (iii) prisoners with

14 any on-going medical care must show their medical needs can be met outside the

15 prison, and that they have a 90-day supply of prescribed medications.

16

79. The appalling conditions of BOP facilities across the country, and the

17 BOP’s failures to address the constitutional rights of prisoners in its care, have

18 forced federal courts to address BOP failures in a large number of individual cases

19 seeking compassionate release115; bail pending appeal, trial, or sentencing116;

20 115 E.g., United States v. Smith, No. 12-cr-133, 2020 WL 1849748 (S.D.N.Y. Apr.
21 13, 2020) (granting release; finding exhaustion waivable and waived); United States

22 v. Zukerman, ---F.Supp.3d ---, 2020 WL1659880 (S.D.N.Y. Apr. 3, 2020) (waiving exhaustion and granting immediate compassionate release in light of COVID-19 to
23 defendant convicted in multi-million dollar fraud scheme); United States v. Sawicz,

24 No. 08-cr-287, 2020 WL1815851 (E.D.N.Y. Apr. 10, 2020) (releasing childpornography offender); United States v. Oreste, No. 14-cr-20349 (S.D. Fla. Apr. 6,
25 2020).

26 116 E.g., United States v. Chavol, No. 20-50075 (9th Cir. Apr. 2, 2020) (stipulation

27 in a FRAP(9) appeal to release on conditions); United States v. Hector, No. 2:18-cr3-2, ECF 748 (W.D. Va. Mar. 27, 2020).
28

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1 delayed self-surrender117; writs of habeas corpus118; class-wide relief for groups of

2 prisoners119; and furloughs.120

3

80. As noted, the Northern District of Ohio ordered FCI Elkton to release

4 potentially hundreds of medically vulnerable prisoners who face a greater threat

5 from COVID-19. It did this because Elkton had “altogether failed” to follow CDC

6 guidance for correctional settings, and that the measures were “necessary to stop the

7 spread of the virus and save lives.”121 Similarly, the District of Connecticut has

8 ordered FCI Danbury to evaluate and release medically vulnerable inmates on an

9 accelerated basis.122

10

11

12

13

14 117 United States v. Roeder, No. 20-1682, ___ F. App’x ___, 2020 WL 1545872 (3d

15

Cir. Apr. 1, 2020) (reversing district court’s denial of defendant’s motion to delay execution of his sentence because of the COVID-19 pandemic); United States v.

16 Garlock, No. 18-CR-418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020)

17

(observing that “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be

18 avoided”); United States v. Matthaei, No. 19-CV-243, 2020 WL 1443227, at *1 (D.

19 Idaho Mar. 16, 2020) (extending self-surrender date by 90 days in light of pandemic).

20 118 E.g., Xochihua-Jaimes v. Barr, No. 18-71460, 798 F. App’x 52 (9th Cir. Mar. 23,

21 2020) (Mem) (sua sponte releasing detainee from immigration detention “in light of

22

the rapidly escalating public health crisis”); Fraihat v. Wolf, No. 5:20-CV-590, (C.D. Cal. Mar. 30, 2020).

23 119 E.g., In re Request to Commute or Suspend County Jail Sentences, Docket No.

24 084230 (N.J. Mar. 22, 2020) (releasing large class of defendants serving time in

county jail “in light of the Public Health Emergency” caused by COVID-19). 25
120 E.g., United States v. Stahl, No. 18-cr-694, 2020 WL 1819986 (S.D.N.Y. Apr. 26 10, 2020).

27 121 Wilson, 2020 WL 1940882, at *8.

28 122 Martinez-Brooks, 2020 WL 2405350, at *32

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1

V.

2

LEGAL GROUNDS FOR PETITION

3 A. Respondents’ Failure to Take Steps to Mitigate Transmission of

4

COVID-19 Constitutes Deliberate Indifference to the Serious Medical

5

Needs of Petitioner.

6

81. Respondents are violating Petitioners’ Eighth Amendment rights by

7 continuing to incarcerate them in conditions that place them at substantial risk of

8 serious harm from transmission of an infectious and deadly disease, especially

9 considering Petitioners’ vulnerable conditions.

10

82. All individuals held at Lompoc have been convicted and assigned by

11 the BOP to serve time at Lompoc. Therefore, the treatment of all individuals

12 incarcerated at Lompoc, including the treatment of Petitioners, is governed by the

13 Eighth Amendment. See Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012).

14 The Ninth Circuit employs a two-part test in assessing whether prison officials have

15 violated the Eighth Amendment by way of deliberately indifference to the medical

16 needs of inmates: (1) the plaintiff must have “a serious medical need by

17 demonstrating that failure to treat a prisoner’s condition could result in further

18 significant injury or the unnecessary and wanton infliction of pain”; and (2) the

19 defendants’ “response to the need” must have been “deliberately indifferent.” Id.

20

83. Government officials act with deliberate indifference when they

21 “ignore a condition of confinement that is sure or very likely to cause serious illness

22 and needless suffering the next week or month or year,” even when “the

23 complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509

24 U.S. 25, 33 (1993). This Court need not “await a tragic event” to find that

25 Respondents are maintaining unconstitutional conditions of confinement. Id. at 32-

26 33. This is so not only because a tragedy is ongoing, but because even petitioners

27 and class members who have not yet tested positive have a constitutional right to be

28 free from conditions of confinement that “pose an unreasonable risk of serious

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1 damage to [Petitioner’s] future health.” Id. at 35.

2

84. Indeed, the threat of exposure to a deadly infectious disease such as

3 COVID-19 and subsequent mistreatment due to lack of medical resources

4 constitutes a serious risk to health, particularly for the Petitioners with unique

5 vulnerability to COVID-19. See Helling, 509 U.S. at 34 (noting with approval

6 Eighth Amendment claims based on exposure to serious contagious diseases);

7 Unknown Parties v. Johnson, No. cv-15-00250, 2016 WL 8188563, at *15 (D. Ariz.

8 Nov. 18, 2016), aff’d sub nom, Doe v. Kelly, 878 F.3d 710 (finding evidence of

9 medical risks associated with . . .being exposed to communicable diseases” adequate

10 to establish irreparable harm under the Eighth Amendment); Castillo v. Barr, --- F.

11 Supp. 3d ---, 2020 WL 1502864, at *5 (C.D. Cal. Mar. 27, 2020) (in civil

12 detainment context, ruling that officials could not “be deliberately indifferent to the

13 potential exposure of civil detainees to a serious, communicable disease on the

14 ground that the complaining detainee shows no serious current symptoms, or ignore

15 a condition of confinement that is more than very likely to cause a serious illness”).

16

85. As such, Petitioners are entitled to be protected from conditions of

17 confinement that create a serious risk to health or safety, including through release

18 from custody when necessary. Brown v. Plata, 563 U.S. 493, 531–32 (2011)

19 (upholding lower court’s order releasing people from state prison even though

20 release was based on prospect of future harm caused by prison overcrowding); see

21 also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (correctional official violates

22 Eighth Amendment by consciously failing to prevent “a substantial risk of serious

23 harm”).

24

86. Under Lompoc’s current conditions, Respondents have not and cannot

25 protect Petitioners and the class from this well-known risk of serious harm. In these

26 circumstances, enlargement of custody and, if necessary, release, is required to

27 protect Petitioners and other prisoners with high- risk health conditions from

28 unconstitutional custody.

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1

87. In this case, as established by the facts above, Petitioners face

2 a significant risk of exposure to COVID-19, with the attendant risk of death that

3 follows given their vulnerable conditions. Respondents are well aware of this risk,

4 having been alerted to it by the CDC, the Attorney General, BOP guidance,

5 widespread news reporting, and the ongoing outbreak at various BOP facilities

6 including Lompoc itself. Indeed, the Second Circuit Court of Appeals, unprompted,

7 acknowledged over a month ago the “grave and enduring” risk posed by COVID-19

8 in the correctional context. Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons,

9 No. 19-1778, -- F.3d --, 2020 WL 1320886, at *12 (2d Cir. Mar. 20, 2020).

10

88. Finally, as established above, Respondents have not taken steps

11 sufficient to protect Petitioners from the grave risks that are present every moment

12 he is incarcerated at Lompoc. Respondent Milusnic has recklessly failed to follow or

13 implement CDC guidance or directives from Attorney General Barr or the BOP.

14 Respondents are not capable of managing the risk to Petitioners in the facility’s

15 current environment. Respondents are holding Petitioners in violation of their

16 Eighth Amendment rights by detaining them in the face of significant threats to their

17 health and safety without taking reasonable steps to prevent or address that harm.

18 B. Overcrowding Ensures That Respondents Cannot Implement

19

Recommended Measures Required to Protect Petitioner’s Health, and

20

Violates the Eighth Amendment.

21

89. Respondents are violating Petitioners’ Eighth Amendment rights by

22 continuing to incarcerate them in conditions that place them at substantial risk of

23 serious harm from transmission of an infectious and deadly disease.

24

90. As alleged above, the BOP has thus far failed to implement effective

25 social distancing across its facilities, including and particularly at Lompoc, with

26 disastrous effects. Part of this failure reflects the nature of correctional confinement;

27 however, a large part here owes to the particular circumstances of Lompoc’s design,

28 capacity, and deliberate choices about policies by Respondents.

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1

91. In the midst of a pandemic, Respondents have chosen to maintain

2 overcrowding at Lompoc at a rate of 130% capacity. The profound and purposeful

3 overcrowding Lompoc ensures that effective social distancing is impossible, and it

4 stymies Respondents’ ability to follow and implement the CDC Interim Guidance

5 and other viral-transmission prevention measures.

6

92. Courts have long found that facilities’ populations may exacerbate

7 existing harms entirely unrelated to the fact of crowding itself, including cases

8 where overcrowding may inhibit a facility’s ability to mitigate incarcerated

9 individuals’ risk of contracting dangerous diseases. The Supreme Court itself has

10 recognized that correctional defendants such as Respondents can violate the Eighth

11 Amendment when they crowd prisoners into shared spaces with others who have

12 “infectious maladies.” Helling v. McKinney, 509 U.S. 25, 33 (1993); see also Hutto

13 v. Finney, 437 U.S. 678, 682–85 (1978) (recognizing the need for a remedy where

14 prisoners were crowded into cells and some had infectious diseases).

15

93. Such decisions make particular sense in light of substantial

16 corroborating evidence that transmission becomes more likely in light of, among

17 other factors, relative crowding of people together. See, e.g., Joseph A. Bick,

18 Infection Control in Jails and Prisons, 45 Clinical Infectious Diseases 1047, 1047

19 (Oct. 2007) (“The probability of transmission of potentially pathogenic organisms is

20 increased [in jails and prisons] by crowding, delays in medical evaluation and

21 treatment, rationed access to soap, water, and clean laundry, [and] insufficient

22 infection-control expertise.”), available at https://bit.ly/2QZA494.

23

94. In this case, Petitioner faces an elevated risk of serious illness both

24 because of particular failures on the part of Respondents as alleged above, and

25 because Respondents have chosen to overcrowd the facility. The current population

26 of Lompoc, both of incarcerated individuals and the staff who come through on

27 a daily basis and work in the same confined space, ensures that any effective

28 measures that would mitigate Petitioner’s exposure to and risk of serious illness

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1 from COVID-19 are impossible to implement.

2

VI.

3

CLASS ACTION ALLEGATIONS

4

95. Petitioners bring this action pursuant to Rule 23(b)(2) of the Federal

5 Rules of Civil Procedure on their own behalf and on behalf of all persons similarly

6 situated.

7

96. Petitioners seek to represent a class consisting of all current and future

8 people in post-conviction custody at Lompoc (the “Class”).

9

97. The members of both the Class are too numerous to be joined in one

10 action, and their joinder is impracticable. Upon information and belief, the Class

11 exceeds 1,000 individuals.

12

98. Several common questions of law and fact apply to all Class members.

13 These common questions of fact and law include but are not limited to: (1) whether

14 the conditions of confinement described in this Petition amount to constitutional

15 violations; (2) what measures Respondents have taken and are taking in response to

16 the COVID-19 crisis; (3) whether Respondents have implemented and are

17 implementing an adequate emergency plan during the COVID-19 crisis; (4) whether

18 Respondents’ practices during the COVID-19 crisis have exposed and are exposing

19 prisoners at Lompoc to a substantial risk of serious harm; (5) whether the

20 Respondents have known of and disregarded a substantial risk of serious harm to the

21 safety and health of the Class; and (6) what relief should be awarded to redress the

22 harms suffered by members of the Class as a result of the conditions.

23

99. Absent class certification, individuals incarcerated at Lompoc during

24 the COVID- 19 pandemic would face a series of barriers in accessing the relief

25 sought. Lompoc has suspended visitation, and individuals incarcerated there have

26 limited access to communication with the outside world, impeding their ability to

27 obtain legal representation and pursue litigation. Because the Class are all sentenced

28 prisoners, they do not have defense attorneys already working with them on their

3649388

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1 criminal proceedings. And a large portion of the Class has limited educational

2 backgrounds and financial means.

3

100. Respondents’ practices and the claims alleged in this Petition are

4 common to all members of the Class and members of the Class.

5

101. The claims of Petitioners are typical of those of the Class. Petitioners,

6 like all others at Lompoc, are currently being held in unconstitutional custody at

7 Lompoc. Petitioners Torres, Reed, and Brown, like many other members of the

8 Class, have underlying conditions that enhance their risk of serious illness or death

9 from COVID-19.

10

102. The legal theories on which Petitioner relies are the same or similar to

11 those on which all Class members would rely, and the harms suffered by them are

12 typical of those suffered by all the other Class members.

13

103. Petitioner will fairly and adequately protect the interests of the Class.

14 The interests of the Class representatives are consistent with those of the Class

15 members. In addition, counsel for Petitioner is experienced in class action and civil

16 rights litigation and in criminal law.

17

104. Counsel for Petitioner knows of no conflicts of interest among Class

18 members or between the attorneys and Class members that would affect this

19 litigation.

20

VII.

21

CLAIMS FOR RELIEF

22

FIRST CLAIM FOR RELIEF

23

(Eighth Amendment)

24

Unconstitutional Conditions of Confinement in Violation of the Eighth

25

Amendment to the U.S. Constitution

26

28 U.S.C. § 2241/28 U.S.C. § 2243

27

Class versus All Defendants

28

105. Petitioner incorporates by reference each and every allegation

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1 contained in the preceding paragraphs as if set forth fully herein.

2

106. Petitioners bring this claim on their own behalf and on behalf of the

3 Class.

4

107. The Eighth Amendment guarantees sentenced prisoners custody free of

5 “a condition of confinement that is sure or very likely to cause serious illness and

6 needless suffering the next week or month or year.” Helling, 509 U.S. at 33; see also

7 U.S. Const. Amend VIII. The government’s failure to protect the prisoners in its

8 custody from a widespread outbreak of a serious contagious disease that causes

9 potentially permanent damage or death constitutes deliberate indifference in

10 violation of the Eighth Amendment to the United States Constitution.

11

108. Petitioners and the Class are at severe risk of contracting COVID-19

12 because 60% of prisoners have already tested positive. Petitioners and the sub-class

13 are uniquely vulnerable to serious complications or death from contracting

14 COVID-19 because of their age and/or because they suffer from medical conditions

15 that render them uniquely vulnerable.

16

109. Because of the conditions at Lompoc, Petitioners and Class members

17 cannot take steps to protect themselves—such as social distancing, hand-washing

18 hygiene, or self-quarantining—and the government has not provided adequate

19 protections. As COVID-19 rapidly spreads inside Lompoc, the already deplorable

20 conditions at the prison will continue to deteriorate, and incarcerated individuals

21 there will continue to contract COVID-19 at staggering rates. Due to inadequate

22 medical care at Lompoc, the health and safety of those who contract COVID-19 will

23 be put in unconstitutional danger.

24

110. Petitioners contend that the fact of their confinement in prison itself

25 amounts to an Eighth Amendment violation under these circumstances, and nothing

26 short of an order ending their confinement at Lompoc will alleviate that violation.

27

111. Respondent’s failure to adequately protect Petitioners from these

28 unconstitutional conditions, or release them from the conditions altogether,

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1 constitutes deliberate indifference to a substantial risk of serious harm to Petitioners,

2 and all members of the Class, thereby establishing a violation of the Eighth

3 Amendment to the United States Constitution.

4

112. Respondents were aware or should have been aware of these

5 conditions, which were and are open and obvious throughout the entire prison

6

113. Respondents knew of and disregarded an excessive risk to health and

7 safety.

8

114. Respondents failed to act with reasonable care to mitigate these risks,

9 subjecting Petitioners to a grave and serious risk of harm of serious illness,

10 permanent injury, or death.

11

115. Because Respondents failed to act to remedy Petitioners’ and the

12 Class’s degrading and inhumane conditions of confinement in violation of their

13 Eighth Amendment rights, Petitioners seek relief under this Writ of Habeas Corpus

14 Petition and Class Action Complaint.

15

116. Because of the unlawful conduct of Respondents, Petitioners and the

16 Class are threatened with imminent physical injury, pain and suffering, emotional

17 distress, humiliation, and death.

18

SECOND CLAIM FOR RELIEF

19

(Eighth Amendment)

20

Unconstitutional Conditions of Confinement in Violation of the

Eighth Amendment to the U.S. Constitution

21

Injunctive Relief Only

22

U.S. Const, Amend. VIII; 28 U.S.C. § 1331; 5 U.S.C. § 702

23

Class versus All Defendants in their Official Capacities

24

117. Petitioners incorporate by reference each and every allegation

25

contained in the preceding paragraphs as if set forth fully herein.

26

118. Petitioners bring this claim on their own behalf and on behalf of the

27

Class.

28

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1

119. This claim does not seek the release of any members of the Class and

2 accordingly is not maintained pursuant to 28 U.S.C. § 2241. However, it is well-

3 established that individuals may sue to enjoin constitutional violations, either

4 directly under the Constitution or under the Administrative Procedure Act. See

5 Sierra Club v. Trump, 929 F.3d 670, 694 (9th Cir. 2019) (“Plaintiffs may bring their

6 challenge through an equitable action to enjoin unconstitutional official conduct, or

7 under the judicial review provisions of the Administrative Procedure Act

8 (“APA”), 5 U.S.C. § 701 et seq., as a challenge to a final agency decision that is

9 alleged to violate the Constitution, or both.”); Fazaga v. FBI, 916 F.3d 1202, 1239–

10 1241 (9th Cir. 2019) (permitting claims against federal officials in their official

11 capacities for injunctive relief directly under the Fourth Amendment, even though

12 Privacy Act provides for other remedies, and contrasting them to direct actions

13 under the Fourth Amendment for money damages, which are Bivens claims); Jones

14 v. Hurwitz, 324 F. Supp. 3d 97, 100 (D.D.C. 2018) (finding that a Bivens claim

15 could not be maintained because allegations were against defendants in their official

16 capacities but that equitable action could have been maintained as a “direct cause of

17 action arising under the Constitution”); Farmer v. Brennan, 511 U.S. 825, 846

18 (1994) (“If the court finds the Eighth Amendment’s subjective and objective

19 requirements satisfied” with regard to a federal prisoner, “it may grant appropriate

20 injunctive relief.”).

21

120. Because of the conditions at Lompoc, Petitioners and Class members

22 cannot take steps to protect themselves—such as social distancing, hand-washing

23 hygiene, or self-quarantining—and the government has not provided adequate

24 protections. As COVID-19 rapidly spreads inside Lompoc, the already deplorable

25 conditions at the prison will continue to deteriorate, and incarcerated individuals

26 there will continue to contract COVID-19 at staggering rates.

27

121. Respondent’s failure to adequately protect Petitioners from these

28 unconstitutional conditions, or release them from the conditions altogether,

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1 constitutes deliberate indifference to a substantial risk of serious harm to Petitioners,

2 and all members of the Class, thereby establishing a violation of the Eighth

3 Amendment to the United States Constitution.

4

122. Because of the unlawful conduct of Respondents, Petitioners and the

5 Class are threatened with imminent physical injury, pain and suffering, emotional

6 distress, humiliation, and death.

7

VIII.

8

RELIEF REQUESTED

9

WHEREFORE, Petitioners, and the Class respectfully request that the Court:

10

1. Declare that Lompoc’s custody of Petitioners and the Class violates the

11 Eighth Amendment right against cruel and unusual punishment with respect to

12 Petitioners and the Class;

13

2. Order a highly expedited process—for completion within no more than

14 48 hours—for Respondents to use procedures available under the law to review

15 members of the Class for enlargement of custody to home confinement (or bail

16 pending habeas corpus) in order to reduce the density of the prison population to

17 a number that allows for the implementation of appropriate measures to prevent the

18 spread of COVID-19, during the pendency of this petition for a writ of habeas

19 corpus;

20

3. Order respondents to comply with the Constitution for any Class

21 members who do not receive temporary enlargement and remain at Terminal Island

22 during the pendency of the petition;

23

4. Grant a writ of habeas corpus for all members of the class that received

24 temporary enlargement within one day of the Court’s order and release all such

25 persons within twenty-four hours;

26

5. Enter a temporary restraining order, preliminary injunction and

27 permanent injunction requiring Respondents to immediately adopt mitigation efforts

28 to protect all Class Members not released, including but not limited to:

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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A. Providing adequate spacing of six feet or more between incarcerated people so that social distancing can be accomplished in accordance with CDC guidelines;
B. Ensuring that each incarcerated person receives, free of charge, an individual supply of hand soap and paper towels sufficient to allow frequent hand washing and drying each day; an adequate supply of clean implements for cleaning such as sponges and brushes and disinfectant hand wipes or disinfectant products effective against the virus that causes COVID-19 for daily cleanings;
C. Ensuring that all incarcerated people have access to hand sanitizer containing at least 60% alcohol;
D. Providing access to daily showers and daily access to clean laundry, including clean personal towels and washrags after each shower;
E. Requiring that all Terminal Island staff wear personal protective equipment, consistent with the CDC guidance, including masks and gloves, when interacting with any person or when touching surfaces in cells or common areas;
F. Requiring that all Terminal Island staff wash their hands, apply hand sanitizer containing at least 60% alcohol, or change their gloves both before and after interacting with any person or touching surfaces in cells or common areas;
G. Taking the temperature of all class members and screening for symptoms of COVID-19 of all class members, prison staff, and visitors daily (with a functioning and properly operated and sanitized thermometer) to identify potential 47
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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COVID-19 infections; H. Assessing (through questioning) each incarcerated person
daily to identify potential COVID-19 infections; I. Ensuring that all class member and prison staff exposed to
individuals with known cases of COVID-19 be isolated from individuals who have not tested positive. J. Immediately providing on a daily basis clean masks for all individuals who display or report potential COVID-19 symptoms until they can be evaluated by a qualified medical professional or placed in non-punitive quarantine and ensure the masks are properly laundered with replacements as necessary; K. Ensuring that individuals identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined (without resorting to cohorting, if possible), in a non-punitive setting, with continued access to showers, recreation, mental health services, reading materials, phone and video visitation with loved ones, communications with counsel, and personal property; L. Cleaning and disinfecting frequently touched surfaces with disinfectant products effective against the virus that causes COVID-19 (at the manufacturer's recommended concentration), as well as surfaces in common areas, every two hours during waking hours, and at least once during the night; M. Assuring incarcerated people are told they will not be retaliated against for reported COVID-19 symptoms;
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1

N. Providing necessary medical treatment consistent with

2

community standards for incarcerated people who are ill

3

because of COVID-19;

4

O. Responding to all emergency (as defined by the medical

5

community) requests for medical attention within an hour;

6

P. Crafting a mechanism to ensure compliance through the

7

appointment of an independent monitor with medical

8

expertise to ensure compliance with these conditions, and

9

provide the monitor with unfettered access to medical

10

units, confidential communication with detained

11

individuals in and out of quarantine, and surveillance

12

video of public areas of the facilities;

13

6. Certify this petition as a class action, for the reasons stated herein;

14

7. Award Plaintiffs’ attorneys’ fees and costs, as provided by statute and

15 law; and

16

8. Order such other and further relief as this Court deems just, proper and

17 equitable.

18

19

Local Rule 5-4.3.4(a)(2)(i) Compliance: Filer attests that all other

20 signatories listed concur in the filing’s content and have authorized this filing.

21

22 DATED: May 16, 2020 23

Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C.

24

By:

/s/ Naeun Rim

25

Naeun Rim Attorneys for Plaintiff-Petitioners

26

27

28
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1 DATED: May 16, 2020 2

Peter J. Eliasberg Peter Bibring ACLU Foundation of Southern California

3

By:

/s/ Peter Bibring

4

Peter Bibring

Attorneys for Plaintiff-Petitioners 5

6 DATED: May 16, 2020 7 8 9 10

Donald Specter Sara Norman Prison Law Office

By:

/s/ Donald Specter

Donald Specter

Attorneys for Plaintiff-Petitioners

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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50
COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF
AND PETITION FOR WRIT OF HABEAS CORPUS

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EXHIBIT 1

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1

DECLARATION OF KIARA CARROR

2

I, Kiara Carror, am over the age of 18 and fully competent to declare as

3 follows:

4

1. My brother is Yonnedil Carror Torres. He is currently incarcerated at

5 USP Lompoc in Lompoc, California. His BOP Register Number is 41928-069.

6

2. My brother is 24 years old, and has suffered from chronic asthma since

7 he was a child.

8

3. I periodically converse with my brother through telephone and letters.

9 From about mid-April until May 9, the prison would not allow any prisoners to use

10 the telephone, and my brother could only reach me through letters. He has not been

11 able to get in direct contact with any lawyers. He confirmed for me over the phone

12 that he consented to being a party to this lawsuit. Through phones and letters, my

13 brother has described to me how he almost lost his life at Lompoc.

14

4. My brother currently resides in the medium-security prison at USP

15 Lompoc. He lives in a tiny cell. The cells in his block are normally single

16 occupancy, but currently each cell houses two prisoners. He shares a single toilet in

17 his cell with his cellmate. Many prisoners in his block are visibly sick.

18

5. On April 24, 2020, we received a letter from my brother telling us that

19 he was extremely sick and was concerned that he may have COVID-19.

20

6. On April 30, 2020, we received a letter from my brother’s cellmate,

21 informing us that my brother had asked the guards for medical assistance for five

22 days, but was completely ignored. He suffered from fever, diarrhea, body aches, and

23 eventually went into acute respiratory failure and collapsed in his cell.

24

7. Every inmate in his block began to bang their cell doors in unison to

25 demand that my brother receive medical attention. Only then was my brother rushed

26 to a hospital and put into a medically-induced coma. Only then was he tested for

27 COVID-19. He tested positive and was intubated and put on a ventilator.

28

8. On May 1, 2020, I contacted the prison and was only told that my

3649759.1

DECLARATION OF KIARA CARROR

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 53 of 189 Page ID #:53

1 brother was no longer at the hospital. They would not give me any other information

2 about his whereabouts. On May 4, 2020, we belatedly received a letter from my

3 brother saying that he had been taken to the hospital and was waiting to be put on a

4 ventilator. We had no way of knowing whether he was even still alive.

5

9. On May 9, 2020, I finally received a phone call from my brother. His

6 voice sounded hoarse and unfamiliar. He said that a doctor had told him that he

7 suffered acute lung damage from COVID-19 due to his asthma, and his lung

8 capacity was severely deteriorated as a result. After my brother regained

9 consciousness, they briefly placed him in a quarantine unit and then returned him to

10 his original cell.

11

10. My brother has seen other sick prisoners and their experiences have

12 been similar. He says the prison allows people who are infected with COVID-19 to

13 hit “rock bottom” before any testing or treatment is offered.

14

11. I submitted a request for compassionate release to the Warden of USP

15 Lompoc on my brother’s behalf on May 11, 2020, but have not received a response.

16

12. If transferred to home confinement, my brother would stay with me at

17 my home in 420 Bay Leaf Dr Kissimmee, FL 34759. He would have access to

18 doctors familiar with his medical history.

19

I declare under penalty of perjury under the laws of the United States of

20 America that the foregoing is true and correct.

21

Executed on May 14, 2020, at Kissimmee, FL

22

23

24

25 Kiara Carror
26

27

28

3649759.1

2
DECLARATION OF KIARA CARROR

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EXHIBIT 2

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EXHIBIT 3

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1

DECLARATION OF GRACIELA ZAVALA-GARCIA

2

I, Graciela Zavala-Garcia, am over the age of 18 and fully competent to

3 declare as follows:

4

1. My name is Graciela Zavala-Garcia. I am a practicing attorney,

5 licensed in the State of California for 36 years, with California State Bar No.

6 113901.

7

2. My son’s name is Felix Samuel Garcia. He is 36 years old and has been

8 incarcerated since September, 2015. He is currently in Lompoc, California for the

9 past three years. He was at FCI Lompoc for most of that time, but on May 7, 2020,

10 he was moved to USP Lompoc. My son has a release date of November 6, 2020, and

11 a release date to a “halfway house” for July 7, 2020. His BOP Register Number is

12 46693-298.

13

3. Sometime in March 2020, FCI Lompoc went into lockdown and

14 beginning on April 17, 2020, my son was denied all access to telephones, email, and

15 commissary. Until May 12, 2020, the only way I could communicate with him was

16 through letters. On May 12, 2020, I received one phone call from my son, and he

17 told me that he wanted to participate in this lawsuit as a named plaintiff. The

18 following information is based on what my son has told me through that call and

19 through his letters.

20

4. In early May, my son tested negative for COVID-19. A few days later,

21 on May 7, 2020, he was moved out of Unit J at FCI Lompoc and to a makeshift

22 prisoner housing unit set up in a warehouse at USP Lompoc. The warehouse has

23 multiple small cells that are occupied by two prisoners each. He shares a toilet and

24 sink with his cellmate. The warehouse is on total lockdown, and my son is kept in

25 his cell almost twenty-four hours a day.

26

5. The conditions at the warehouse are extremely unsanitary. Since

27 moving to the warehouse, my son has not been able to shower or change into clean

28

3649384.1

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1 clothes. My son has been forced to wet his body with water from his sink in a

2 desperate attempt to maintain hygiene.

3

6. In late April, while still at FCI Lompoc, my son received a single mask.

4 He has had to reuse that mask since then. My son has not been given access to hand

5 sanitizer, and says that there is currently a shortage of soap in the warehouse where

6 he lives.

7

7. My son says that other prisoners have been retaliated against for

8 expressing concerns about their safety to the warden. My son also tells me that some

9 prisoners in at FCI Lompoc are being held past their release dates due to the total

10 lockdown.

11

8. On May 11, 2020, my son submitted a request for home confinement to

12 the warden at USP Lompoc through his attorney. We have not yet received a

13 response.

14

8. My son’s current release date is November 6, 2020. He is scheduled to

15 go to a halfway house in July 2020. I do not understand why the BOP would

16 continue to place him and others at risk in an overcrowded prison, rather than

17 transfer him to home confinement just two months before he was scheduled for

18 release to a halfway house.

19

9. If transferred to home confinement, my son would self-quarantine at

20 my house in Imperial Beach, California, with his father and me. He would have

21 access to doctors who are familiar with his medical history.

22

I declare under penalty of perjury under the laws of the United States of

23 America that the foregoing is true and correct.

24

25

Executed on May 14, 2020, at Imperial Beach, California

26

27

28

3649384.1

2

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EXHIBIT 4

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1

DECLARATION OF VERNA WEFALD

2

I, Verna Wefald, am over the age of 18 and fully competent to declare as follows:

3

1. I am an attorney licensed to practice law in the State of California (Bar

4 No. 127104). I make this declaration on behalf of my client Andre Brown, Reg.

5 No. 54460-097, who is incarcerated at the United States Penitentiary in Lompoc,

6 California. Mr. Brown, who is 55 years old (DOB 7/13/65) and a United States citizen by

7 birth, is learning disabled and illiterate. He therefore asked that I make this request on his

8 behalf to join a lawsuit to be filed by the ACLU regarding the COVID-19 emergency at

9 various federal correctional institutions, including Lompoc.

10

2. I was appointed by the Ninth Circuit Court of Appeals to represent Andre

11 Brown in the appeal of his criminal conviction in the Central District of California. United

12 States v. Brown, 19-50025 (13 CR 822). The appeal is fully briefed and may be argued

13 sometime between September and November 2020.

14

3. Mr. Brown was sentenced by the Honorable Otis D. Wright on January 28,

15 2018, to 150 months in prison after being convicted by a jury of two counts of drug

16 trafficking (PCP). He was convicted of distribution and conspiracy in violation of 21

17 U.S.C. §§ 841(a)(1), (b)(1)(B)(iv), and 846. Mr. Brown has been in custody since his

18 arrest on February 12, 2014, or for more than half of his sentence. The BOP website

19 indicates his projected release date is 10/06/2024. See Exhibit A

20

4. Mr. Brown has some minor prior convictions but the last one was 20 years

21 ago.

22

5. On Tuesday, May 12, 2020, I spoke to Mr. Brown in a legal call arranged by

23 the Regional Counsel Dennis Wong. I sent a fax per Lompoc’s request to set up a legal

24 call on May 1. Mr. Wong sent me an email on May 7, to set up the call. He explained that

25 after each call the office and phone needs to be cleaned so arranging for phone calls is

26 a complicated matter. We arranged for me to be awaiting a call between 9:00 A.M. and

27 noon from Tuesday through Thursday but I was able to speak with Mr. Brown early

28 Tuesday morning. During this call, Mr. Brown confirmed to me that he wanted to

1
DECLARATION OF VERNA WEFALD

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 64 of 189 Page ID #:64

1 participate as a named plaintiff in this litigation.

2

6. I did not have a chance to ask Mr. Brown about the details of his housing.

3 However, he is very concerned for his health given the serious outbreak of COVID-19 at

4 Lompoc. At his sentencing, the Presentence Report (PSR) verified that Mr. Brown has

5 prostate cancer. He will need chemotherapy or surgery in the future. I do not know how he

6 is being treated for his cancer at this time.

7

7. Yesterday I sent a request to Lompoc Warden J. Engleman (by email, fax,

8 and certified mail) requesting compassionate release and/or home confinement for

9 Mr. Brown. If the warden does not respond within 30 days I will file a motion in the

10 district court requesting that he be released forthwith.

11

8. I have communicated with Mr. Brown’s daughter Andrea Brown several

12 times. She said that he would be able to live with her as he has in the past. Mr. Brown also

13 has five other children in the Los Angeles area to whom he is close and who could help to

14 support him as well. He will certainly be eligible for Medicaid and can continue to see his

15 doctors at the Martin Luther King Hospital and the Centinela Medical Center in Lawndale.

16

9. Mr. Brown is particularly vulnerable at Lompoc given his underlying serious

17 health problems and his inability to communicate with the outside world by mail. At

18 present there are no phone calls or visits allowed at Lompoc. Legal calls have to be

19 arranged and this takes some time.

20

I declare under penalty of perjury under the laws of the United States of America

21 that the foregoing is true and correct.

22

23

24

25

26

27

28

2
DECLARATION OF VERNA WEFALD

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EXHIBIT 5

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 66 of 189 Page ID #:66

1

DECLARATION OF NEMA ZAYED FEARS

2

I, Nema Zayed Fears, declare as follows:

3

1. I am over the age of 18, and if called as a witness, I could and would

4 competently testify.

5

2. My father is Shawn L. Fears. He is 50 years old and currently incarcerated at

6 USP Lompoc in Lompoc, California. His BOP Register Number is 34183-060.

7

3. Since April 16 2020, the prison has been under lockdown, and my father has

8 not been permitted to use a computer or telephone. I have only been able to converse with

9 him through letters. Through a letter dated May 10, 2020, he told me that he wanted to

10 participate in this lawsuit as a named plaintiff. The following information is based on what

11 my father has told me through his letters.

12

4. My father currently resides in the South Camp at USP Lompoc. He lives in

13 an open-plan dormitory, where prisoners reside in extremely close quarters with each other

14 and share a bathroom. Many prisoners in my father’s dormitory are sick.

15

5. Since the COVID-19 outbreak started, a single mask is the only piece of

16 protective equipment that my father has received. He has had to re-use that mask for

17 weeks.

18

6. My father has never been tested for COVID-19. The only testing he has seen

19 in his dormitory is temperature checks.

20

7. My father says that guards have stopped accepting requests for medical care

21 from prisoners since the outbreak started. He has seen other prisoners being denied regular

22 medical treatment that they would have received prior to the outbreak.

23

8. If transferred to home confinement, my father would self-quarantine at

24 10135 Shoreline Pkwy., Villa Rica, GA 30180. He would have access to doctors who are

25 familiar with his medical history.

26

I declare under penalty of perjury under the laws of the United States of America

27 that the foregoing is true and correct.

28

3649743.1

DECLARATION OF NEMA ZAYED FEARS

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 67 of 189 Page ID #:67

1

Executed May 15, 2020, at Villa Rica, Georgia.

2

3 Nema Zayed Fears
4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3649743.1

2
DECLARATION OF NEMA ZAYED FEARS

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EXHIBIT 6

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1

DECLARATION OF DARWIN P. ROBERTS

2

I, Darwin P. Roberts, declare as follows:

3

1. I am an attorney and a member of the Criminal Justice Act panel in the

4 Western District of Washington. I was appointed counsel for Charles Cheatham in

5 pretrial proceedings in the case United States v. Charles Cheatham, U.S. District

6 Court, Western District of Washington, cause number 2:18-CR-00131-RAJ-1.

7 I represent Mr. Cheatham in his currently pending appeal in the Ninth Circuit Court

8 of Appeals, cause number 19-30294.

9

2. Mr. Cheatham is in the custody of the United States Bureau of Prisons

10 serving a sentence of incarceration imposed by the U.S. District Court. His current

11 projected release date is in March of 2031. His BOP register number is 48768-086.

12

3. In early 2020, Mr. Cheatham was transferred from the Federal

13 Detention Center in Seattle, Washington, to Lompoc Federal Correctional Institution

14 in Lompoc, CA.

15

4. Since COVID-19 cases began to develop in the Bureau of Prisons,

16 Mr. Cheatham’s ability to communicate with me has been limited. Mr. Cheatham

17 has lost most or all of his access to email, and only occasionally can contact me by

18 telephone.

19

5. I was able to speak with Mr. Cheatham today, May 14, 2020, for five

20 minutes. Mr. Cheatham stated he could only speak for five minutes at a time and

21 that there were “80 people” waiting their turn to use the telephone for five minutes.

22 I also received information on May 12, 2020, from family members Mr. Cheatham

23 was able to reach by telephone then.

24

6. Mr. Cheatham told me that COVID-19 cases at Lompoc FCI have

25 “blown up” in recent weeks. This is consistent with the figures reported on the

26 BOP’s website (https://www.bop.gov/coronavirus/), which currently lists 885 cases

27 among inmates at Lompoc FCI, and 13 cases among staff.

28

7. Mr. Cheatham told me that medical care offered by the BOP for

3649763.2

DECLARATION OF DARWIN P. ROBERTS

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 70 of 189 Page ID #:70

1 COVID-19 has been very limited or nonexistent. He stated that inmates are not

2 tested for COVID-19 unless they are showing obvious symptoms, but even if they

3 are showing symptoms and test positive, they are not isolated from other inmates.

4

8. Mr. Cheatham reports that after several days in which he was showing

5 “obvious” symptoms of COVID-19, he was finally given a test for COVID-19 and

6 tested positive. I understand he tested positive within the last 14 days. Nevertheless,

7 he continues to be held in a dormitory-type situation with approximately 100 other

8 inmates, most of whom, he says, also now have COVID-19.

9

9. Mr. Cheatham stated that he and his fellow inmates are not being

10 provided any medication by BOP to treat their COVID-19 symptoms. He stated that

11 they are only being given occasional access to the commissary, meaning they are

12 generally unable to purchase cough drops, cough syrup, or other over-the-counter

13 medications such as aspirin or other painkillers to self-medicate their symptoms.

14

10. Mr. Cheatham stated that due to his untreated respiratory illness and

15 severe sore throat, he was unable to consume any food other than broth for a week.

16

11. Mr. Cheatham stated the inmates in his area are sleeping under fans that

17 circulate air all night and presumably may be spreading the virus among inmates.

18

12. Mr. Cheatham stated that because of BOP’s previous efforts to isolate

19 the inmates, he believes the COVID-19 infection must have been introduced into the

20 prison from BOP staff.

21

I declare under penalty of perjury under the laws of the United States of

22 America that the foregoing is true and correct, and that I executed this declaration

23 on May 15, 2020, at Seattle, Washington.

24

25

/s/ Darwin P. Roberts

Darwin P. Roberts

26

27

28

3649763.2

2
DECLARATION OF DARWIN P. ROBERTS

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 71 of 189 Page ID #:71
EXHIBIT 7

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 72 of 189 Page ID #:72

1

DECLARATION OF SHAMSHER SAMRA, M.D.

2

I, Shamsher Samra, declare as follows:

3

1. I am an Assistant Professor of Clinical Medicine at University of

4 California, Los Angeles and a faculty member in the Department of Emergency

5 Medicine at Harbor-UCLA. I work clinically in the LA County jails and participate

6 in jail reentry programs in Los Angeles County. I am a physician trained in forensic

7 medical evaluations through Physicians for Human Rights. I am a founding

8 member of both the Harbor-Hospital Based Violence Intervention Program and

9 Trauma Recovery Centers. I completed by residency in Emergency Medicine at the

10 University of California, Los Angeles. I received my M.D. from Harvard Medical

11 School. Attached as Exhibit A is my curriculum vitae.

12

2. COVID-19 is a serious disease that has reached pandemic status, and is

13 straining the health care systems around the world. As of May 14, 2020, at least 1.3

14 million people in the United States had received confirmed diagnoses of COVID 19.

15 At least 83,000 people have died in the United States. Approximately 71,000 of the

16 confirmed cases were in California, with more than 2,900 having died.1 These

17 numbers will continue to increase, perhaps exponentially. Moreover, these figures

18 must be considered in light of nationwide shortages of COVID-19 tests, meaning the

19 actual numbers are likely significantly higher than those reported.

20

3. The Lompoc complex is comprised of Federal Correctional Institution

21 Lompoc (“FCI Lompoc”) and United States Penitentiary Lompoc (“USP Lompoc”).

22 USP Lompoc itself has two components, a low-security camp and a medium-

23 security prison. In total, the facilities have a rated design capacity of 2058.2

24 1 Coronavirus Disease 2019, Centers for Disease Control and Prevention,
25 available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-
26 us.html

27 2 Prison Rape Elimination Act Audit Report, Federal Bureau of Prisons, at pages 28 2–3, available at https://www.bop.gov/locations/institutions/lof/prea_lof.pdf

3649607.2

1
DECLARATION OF SHAMSHER SAMRA, M.D.

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 73 of 189 Page ID #:73

1 However, as of May 14, 2020 they had a total population of 2680, thus exceeding

2 capacity.3 As of May 14, 2020, BOP’s website reports that there are a total of 924

3 people at FCI Lompoc who are currently or were recently positive for COVID-19,

4 including 882 residents and 14 staff currently deemed positive, and 25 inmates

5 reported as being “recovered” after previously testing positive.4 As of May 14,

6 BOP’s website reports that there were a total of 137 people at USP Lompoc who are

7 currently or were recently positive for COVID-19, including 22 staff and

8 16 residents currently deemed positive, and 93 residents reported as being

9 “recovered” after previously testing positive.5 The reported numbers change daily,

10 and the BOP website does not show what criteria it is using to consider someone

11 “recovered.” At least 2 residents have died at FCI Lompoc due to coronavirus.6

12

4. COVID-19 is a novel respiratory virus. It is spread primarily through

13 droplets generated when an infected person coughs or sneezes, or through droplets

14 of saliva or discharge from the nose. There is no vaccine for COVID-19, and there is

15 no cure for COVID-19. No one has prior immunity. The only way to control the

16 virus is to use preventive strategies, including social distancing.

17

5. The time course of the disease can be very rapid. Individuals can show

18 the first symptoms of infection in as few as two days after exposure and their

19 condition can seriously deteriorate in as few as five days (perhaps sooner) after that.

20 It is believed that people can transmit the virus without being symptomatic and,

21 3 Inmate Population Breakdown, Federal Bureau of Prisons, available at
22 https://www.bop.gov/mobile/about/population_statistics.jsp
23 4 COVID-19, Federal Bureau of Prisons, available at 24 https://www.bop.gov/coronavirus/

25 5 COVID-19, Federal Bureau of Prisons, available at 26 https://www.bop.gov/coronavirus/

27 6 COVID-19, Federal Bureau of Prisons, available at 28 https://www.bop.gov/coronavirus/

3649607.2

2
DECLARATION OF SHAMSHER SAMRA, M.D.

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 74 of 189 Page ID #:74

1 indeed, that a significant amount of transmission may be from people who are

2 infected but asymptomatic or pre-symptomatic.

3

6. COVID-19 causes serious illness, with overall case fatality rates in the

4 United States so far estimated at 5.8%. An estimated 20% of those who become

5 infected and develop symptoms require significant medical intervention. While

6 certain medical conditions increase the probability of death from infection,

7 otherwise perfectly healthy people are also vulnerable to COVID-19 and may die as

8 a result. For example, adults age 20 to 44 account for 20% of all hospitalizations

9 and 12% of ICU admissions.7

10

7. Treatment for serious cases of COVID-19 requires significant advanced

11 support. In particular, appropriate supportive care often requires ventilator

12 assistance for respiration and prone positioning if a patient’s condition worsens

13 despite intubation and ventilation. Furthermore, hospitals across the country are

14 deploying a variety of drug regimens, including antivirals and imunomodulators, in

15 search of the most effective remedy against COVID-19. It is essential that patients

16 have immediate access to such advanced supportive care, because the condition of

17 patients who require hospitalization often deteriorates in rapid fashion. For

18 instance, approximately 50% develop hypoxemia (shortage of oxygen in the blood

19 or shortage of oxygen) by the eighth day. And as many as 29% develop Acute

20 Respiratory Distress Syndrome (ARDS).8 In addition to being a very lethal

21 condition on its own, ARDS has a long and varied list of related complications that

22 are as equally fatal: blood clots, collapsed lung, infections, and scarring of lung

23
24 7 Coronavirus, COVID-19, Johns Hopkins Medicine, available at hopkinsguides.com/hopkins/view/Johns_Hopkins_ABX_Guide/540747/all/Coronav
25 irus_COVID_19__SARS_CoV_2_#2
26 8 Coronavirus, COVID-19, Johns Hopkins Medicine, available at
27 hopkinsguides.com/hopkins/view/Johns_Hopkins_ABX_Guide/540747/all/Coronav 28 irus_COVID_19__SARS_CoV_2_#2

3649607.2

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DECLARATION OF SHAMSHER SAMRA, M.D.

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 75 of 189 Page ID #:75

1 tissue.9 In sum, for those individuals who experience more severe symptoms from

2 COVID-19, immediate and substantial medical intervention is required.

3

8. The effects of COVID-19 are especially serious for people who are

4 most vulnerable. Vulnerable people include people over the age of 50, and those of

5 any age with underlying health problems such as—but not limited to—weakened

6 immune systems (which can be caused by a variety of conditions, including but not

7 limited to cancer treatment, smoking, and immune weakening medications),

8 moderate to severe asthma, diabetes, hypertension, serious heart and lung disease,

9 severe obesity, liver disease, chronic kidney disease, and possibly pregnancy.10

10 While the CDC typically classifies only people 65 and older as vulnerable,

11 incarcerated individuals tend to be in poorer health than those in the general

12 population, justifying the use of an earlier cutoff in classifying people deemed

13 vulnerable to COVID-19.

14

9. Although individuals in the above-described populations are most

15 vulnerable, even younger and healthier people can suffer severe consequences. For

16 example, even healthier people who contract COVID-19 are susceptible to severe

17 strokes and may require supportive care, which includes supplemental oxygen,

18 positive pressure ventilation, and in extreme cases, extracorporeal mechanical

19 oxygenation.

20

10. The full extent of long-term sequela on cardio and cerebrovascular

21 diseases and other organ damage is unknown at this time in light of the novel nature

22 of COVID-19. However, preliminary evidence suggests COVID-19 may render

23 lasting organ damage in even minimally symptomatic or completely asymptomatic

24 9 ARDS, Mayo Clinic, available at https://www.mayoclinic.org/diseases-
25 conditions/ards/symptoms-causes/syc-20355576
26 10 Coronavirus Disease 2019, Centers for Disease Control and Prevention,
27 available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
28 precautions/people-at-higher-risk.html

3649607.2

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DECLARATION OF SHAMSHER SAMRA, M.D.

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 76 of 189 Page ID #:76

1 patients. For example, COVID-19 can severely damage lung tissue, which requires

2 an extensive period of rehabilitation, and in some cases, can cause a permanent loss

3 of respiratory capacity. Furthermore, COVID-19 may target the heart muscle,

4 causing a medical condition called myocarditis, or inflammation of the heart muscle.

5 Myocarditis can affect the heart muscle and electrical system, reducing the heart’s

6 ability to pump. This reduction can lead to rapid or abnormal heart rhythms in the

7 short term, and long-term heart failure that limits exercise tolerance and the ability

8 to work.

9

11. In light of the above, an outbreak of COVID-19 could put significant

10 pressure on or exceed the capacity of local health infrastructure. In the absence of

11 a vaccine and a cure, a significant number of people who are infected with the virus

12 will die. Buttressing these concerns, it is not yet clear whether people who have

13 already been infected with COVID-19 gain immunity against future infection. To

14 the extent that the health care infrastructure is overloaded, people will die

15 unnecessarily because necessary respirators and hospital facilities are unavailable.

16

12. Public health authorities recommend a number of preventative steps to

17 help prevent or decrease the spread of COVID-19, with perhaps the most important

18 measure being social distancing. However, as the CDC and BOP both appear to

19 acknowledge, correctional facilities are inherently limited in their abilities to

20 implement such measures. For example, the BOP’s modified operating directive is

21 inadequate, in part, because it only requires social distancing “as much as

22 practicable.”11 Indeed, social distancing in ways that are recommended by public

23 health officials can be difficult, if not impossible, in prisons, placing people at risk,

24 especially when a facility is at or above population capacity. Therefore, even if the

25 conditions at Lompoc were ideal (which they are not) it would require

26

27 11 Modified Operating Directive, Federal Bureau of Prisons, available at 28 https://www.bop.gov/coronavirus/covid19_status.jsp

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DECLARATION OF SHAMSHER SAMRA, M.D.

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1 a monumental effort to ensure the safety of prisoners and staff.

2

13. I understand the following to be allegations in the Complaint. If these

3 allegations are confirmed true, the conditions at Lompoc are deeply concerning:

4

 The Lompoc complex is comprised of Federal Correctional

5

Institution Lompoc and United States Penitentiary Lompoc.

6

USP Lompoc itself has two components, a low-security camp

7

and a medium-security prison.

8

 In total, the facilities comprising the Lompoc complex have

9

a rated design capacity of 2058. However, as of May 14, 2020,

10

they had a population of 2680, thus exceeding capacity.

11

 As of May 13, 2020, more than 1,063 prisoners and staff had

12

tested positive for COVID-19 at FCI Lompoc and USP Lompoc.

13

 At FCI Lompoc, sick people are being moved to a converted

14

warehouse in USP Lompoc. The living space there is cell-style

15

(the warehouse is itself a converted SHU), with two prisoners to

16

a cell. The warehouse is on near-total lockdown, and prisoners

17

are in their cells almost 24 hours a day. Conditions at the

18

warehouse are very unsanitary. Nobody can shower or change

19

into clean clothes due to lockdown.

20

 At the low-security camp at USP, people live in open-plan

21

dormitories with shared bathrooms. About 140 people live in

22

these dorms and sleep on bunk beds approximately 6 feet apart

23

from each other. There are no internal walls so everyone and all

24

the bunk beds are in one open space. All 140 people share six

25

toilets and six showers. Dorms are crowded and people

26

congregate in common areas. Other than when they stand in line

27

for meal packets, nobody is allowed to leave the dormitory.

28

Prisoners also have to stand in line to get medication, and there is

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DECLARATION OF SHAMSHER SAMRA, M.D.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3649607.2

not enough space for social distancing.  Initially, the practice appears to have been to transfer sick people
to the SHU. Some prisoners who had tested positive were left there for up to four days with no medical attention. Eventually, they re-opened two dormitories that had been closed three years ago due to mold contamination in order to house sick people. The re-opened dormitories are extremely unsanitary, and prisoners sleep on mattresses guards have scattered across the ground. Prisoners here go for up to five days at a time with no treatment for COVID-19. There is no soap, and people are not being allowed to shower.  At the medium-security prison at USP, two prisoners each are sharing cells that are normally single occupancy. It does not appear that they are bothering to pull sick people out of the prison, presumably because they are less infected due to the relative isolation. Policy seems to be to allow people to hit “rock-bottom” before being treated for COVID-19.  Inmates were only give one mask in April, and have been reusing that mask since. Hand sanitizer is non-existent and soap is not plentiful (because commissary is closed, prisoners cannot secure extra soap beyond the one bar per week they are normally issued).  It does not appear that anyone who tests positive and then “recovers” is tested again before being returned to the general population.  Prisoners are being denied regular medical treatment they had received prior to the outbreak. For example, routine procedures scheduled prior to the outbreak have been delayed indefinitely.
7
DECLARATION OF SHAMSHER SAMRA, M.D.

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1

14. These conditions make it virtually impossible to ensure the safety of

2 prisoners who remain housed at the facility if the current course is maintained.

3 Even if the government made best efforts, effective social distancing is out of the

4 question, particularly for those inmates who are effectively forced to be in

5 a communal setting at all times due to their dormitory-style housing. Indeed, this

6 combination of factors practically ensures that all remaining prisoners will

7 eventually contract COVID-19 unless extraordinary measures are taken now. As if

8 more evidence were needed of Lompoc’s inability to ensure the safety of its

9 prisoners, more than half of them have recently tested positive for COVID-19.

10

15. Moreover, it is my understanding that BOP now contends that

11 a substantial number of the prisoners who recently tested positive have “recovered.”

12 To the extent these prisoners have actually recovered from the illness, that does not

13 absolve the need for preventive measures. In particular, it is not yet clear whether

14 people who have been infected develop immunity against future infection by

15 COVID-19.

16

16. Furthermore, if it is true that BOP is classifying prisoners as

17 “recovered” without re-testing them, that would be very problematic. Indeed, the

18 need for continued rigorous preventive measures is only heightened if BOP has not

19 relied on appropriate methods for determining whether prisoners have in fact

20 recovered. In an ideal scenario, an individual would only be deemed “recovered”

21 after testing negative. Relying instead, for instance, on patient reports of symptoms

22 may not be sufficient in a correctional setting, where prisoners may be reluctant to

23 share information with staff. Furthermore, asymptomatic individuals can still be

24 carriers of the disease. And in a large communal living space, where social

25 distancing cannot be strictly adhered to, individuals should be tested regularly in

26 order to quickly identify and isolate anyone who may contract COVID-19 before it

27 spreads through the population.

28

17. I have also reviewed a declaration submitted by Kiarra Carror, the

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DECLARATION OF SHAMSHER SAMRA, M.D.

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 80 of 189 Page ID #:80

1 sister of prisoner Yonnedil Carror Torres who resides at USP Lompoc. In addition

2 to some of the representations above, the declarant indicates that: (1) Torres has

3 suffered from chronic asthma since he was a child; (2) Torres resides in a cell

4 designed to house only a single person but he shares his cell with another resident,

5 including sharing a toilet; (3) for five straight days, Torres asked correctional

6 officers for medical assistance due to a fever, diarrhea, and body aches, until he

7 eventually collapsed in his cell from acute respiratory failure; (4) after every

8 prisoner on Torres’s block began banging their cell doors in unison to attract the

9 attention of correctional officers, Torres was taken to a hospital, where he was

10 placed into a medically-induced coma; (5) at the hospital, he was tested for the first

11 time for COVID-19, with the result coming back positive; (6) Torres was then

12 intubated and put on a ventilator; (7) Torres has been informed by physicians that he

13 suffered acute lung damage from COVID-19 due to his asthma and his lung capacity

14 severely deteriorated as a result; (8) Torres was briefly placed in quarantine upon

15 returning to USP Lompoc before returning to his original cell; and (9) Torres has

16 seen other prisoners similarly struggle to receive medical attention, with their

17 symptoms having to become quite severe to receive treatment.

18

18. Assuming these allegations are accurate, the health care delivery

19 system at Lompoc is failing to provide even the minimal level of acceptable care. In

20 addition to the noted failures to institute an effective regimen of social distancing,

21 these declarations highlight the failure to monitor prisoners and to treat those who

22 have become infected—and even worse, have displayed notable symptoms.

23 Torres’s account is alarming, as it shows that virtually no effort is being made at

24 Lompoc to monitor or treat prisoners, with staff instead waiting until the last minute

25 to intervene and send the prisoner to a hospital. One of the things we have already

26 learned about this disease is the benefit of early and aggressive medical intervention.

27

19. Furthermore, given the conditions depicted both in the allegations from

28 the Complaint and the two declarations, it is questionable whether the healthcare

3649607.2

9
DECLARATION OF SHAMSHER SAMRA, M.D.

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 81 of 189 Page ID #:81

1 system at Lompoc is even capable of adequately responding to the dire situation it

2 now faces. In the context of a very limited healthcare system at a prison facility

3 (and possible staffing shortages due to COVID-19 outbreak among staff), the

4 inability to swiftly identify those prisoners in need of substantial and proactive

5 medical intervention and either begin an appropriate treatment regimen or transport

6 them to a civilian hospital will only cause needless pain and deaths.

7

20. In light of the above, in my opinion BOP should take immediate steps

8 to dramatically downsize the population at Lompoc, with priority given to those at

9 high risk of harm due to their age and health status and thus are likely to require a

10 disproportionate amount of medical resources. This will both allow Lompoc to

11 implement more effective preventive and treatment measures while simultaneously

12 granting released or transferred prisoners access to minimally acceptable living

13 conditions.

14

21. Perhaps most importantly, downsizing will allow for more effective

15 social distancing measures at Lompoc while simultaneously reducing the strain

16 placed on prison staff by the need to monitor and treat prisoners. Although BOP has

17 attempted to redress the overcrowding by sending certain FCI Lompoc inmates to

18 a converted warehouse, I am informed that the living conditions there are

19 unsanitary, raising questions about the suitability of the environment, especially for

20 a population grappling with a deadly novel disease. In light of the already high

21 infection rates at Lompoc, any reduction in prisoner population will also allow

22 prison staff to more closely monitor the conditions of infected prisoners for signs

23 that immediate medical intervention is required. Relatedly, the reduction in

24 population while implementing downsizing measures helps prevent overloading the

25 work of prison staff such that they can continue to ensure the safety of incarcerated

26 people.

27

22. Furthermore, immediate downsizing that prioritizes prisoners who are

28 elderly and those with underlying health conditions reduces the likelihood they will

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DECLARATION OF SHAMSHER SAMRA, M.D.

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 82 of 189 Page ID #:82

1 contract the disease (either for a first or subsequent time) or suffer severe medical

2 consequences as a result of being infected. Reducing the spread and severity of

3 infection in a prison slows, if not reduces, the number of people who will become ill

4 enough to require hospitalization, which in turn reduces the strain on local

5 community resources and infrastructure.

6

23. Downsizing from a facility with infection rates as high as Lompoc may

7 be done safely, minimizing the risk of increasing infection rates in the community.

8 In particular, it is imperative that prisoners be tested prior to release. But even

9 prisoners who receive confirmed diagnoses of COVID-19 may be safely released to

10 the community. If they are asymptomatic, they must be required to self-quarantine

11 and follow other recommendations of public health officials. If they are

12 experiencing symptoms, they will likely receive superior healthcare if released from

13 custody due to the present conditions at Lompoc.

14

24. The above measures, especially if implemented immediately, can slow

15 or stop the spread of infection (or re-infection) and ensure appropriate and proactive

16 treatment of infected prisoners, to the benefit of prisoners and staff and, ultimately,

17 the community at large.

18

25. In addition to downsizing, and to the extent they are not already being

19 implemented, the following steps should immediately be mandated of the

20 Respondents in order to protect any prisoners who remain in custody:

21

a. Social Distancing. The prison must ensure that prisoners are

22 able to maintain adequate social distancing during required or necessary activities,

23 such as collecting food, eating, and receiving medications.

24

b. Immediate and Continued Testing. Patients (both staff and

25 prisoners) who require testing, based on public health recommendations and the

26 opinion of a qualified medical professional, should be tested for COVID-19,

27 including to the extent public health recommendations call for continued (or repeat)

28 testing of individuals who have previously been tested.

3649607.2

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DECLARATION OF SHAMSHER SAMRA, M.D.

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 83 of 189 Page ID #:83

1

c. Immediate Screening. Defendants must be required to screen

2 each employee or other person entering the facility every day to detect fever over

3 100 degrees, cough, shortness of breath, and/or exposure to someone who is

4 symptomatic or under surveillance for COVID-19 or screening as required by public

5 health authorities. A record should be made of each screening.

6

d. Quarantine. The prison must establish non-punitive quarantine

7 for all individuals believed to have been exposed to COVID-19, but not yet

8 symptomatic, and non-punitive isolation for those believed to be infected with

9 COVID-19 and potentially infectious. Any individual who must interact with those

10 potentially or likely inflicted with COVID-19 must utilize protective equipment as

11 directed by public health authorities. In short, every possible effort must be made to

12 separate infected or potentially infected individuals from the rest of the incarcerated

13 population and each other.

14

e. Institutional Hygiene. The prison must be required to provide

15 adequate disinfection of all high-touch areas and cells.

16

f. Personal Hygiene. The prison must be required to provide hand

17 soap, disposable paper towels, and access to water to allow prisoners to wash their

18 hands on a regular basis, free of charge and ensure replacement products are

19 available as needed. Further, hand sanitizer with alcohol must be declassified

20 temporarily as contraband. Correctional staff should be allowed to carry hand

21 sanitizer with alcohol on their person, and prisoners should be allowed to use hand

22 sanitizer with alcohol when they are in locations or activities where hand washing is

23 not available. Prisoners should also be permitted daily access to showers and clean

24 laundry. Correctional officers should be required to wear personal protective

25 equipment, consistent with the CDC guidance, including masks and gloves, when

26 interacting with any person or when touching surfaces in cells or common areas.

27 Finally, correctional officers should also wash their hands, use hand sanitizer, or

28 change their gloves both before and after interacting with any person or touching

3649607.2

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DECLARATION OF SHAMSHER SAMRA, M.D.

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 84 of 189 Page ID #:84

1 surfaces in cells or common areas.

2

g. Waive Copays. There must be a waiving of copays for medical

3 evaluation and care related in any way to COVID-19 and/or its symptoms. A waiver

4 of these types of copays is necessary to avoid disincentivizing patients from

5 requesting medical treatment. Patients with symptoms of possible COVID-19 should

6 be seen quickly.

7

h. Personal Protective Equipment. Those prisoners with a cough

8 should be provided masks as soon as they inform staff of this symptom or staff

9 notice this symptom. Staff should also be required to wear facemasks, gowns or

10 other body coverings, eye protection, and gloves.

11

i. Supply Chain. The prison must be required to identify the

12 supplies and other materials upon which the institution is dependent, such as food,

13 medical supplies, certain medicines, cleaning products, etc., and prepare for

14 shortages, delays or disruptions in the supply chain.

15

26. In sum, reducing the number of individuals imprisoned at Lompoc

16 immediately is necessary for the health and safety of the prisons and our

17 communities. This population reduction should begin with the most medically

18 vulnerable which includes those over age 50 and those with CDC-defined

19 underlying health conditions.

20

I declare under penalty of perjury under the laws of the United States that the

21 foregoing is true and correct.

22

Executed May 15, 2020, at Los Angeles, California

23

24

25

26

27

28

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DECLARATION OF SHAMSHER SAMRA, M.D.

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 85 of 189 Page ID #:85
EXHIBIT A

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 86 of 189 Page ID #:86
Shamsher Samra, MD, MPhil CURRICULUM VITAE

PERSONAL HISTORY:

Business address:
Work Phone e-mail:

Harbor-UCLA Medical Center Division of 1000 West Carson Street Torrance, California 90509 (310) 269-3923 ssamra@dhs.lacounty.gov

Home address:
Home Phone:
Date of Birth: Place of Birth: Citizenship:

27 Westminster Ave Venice, California 90291 (559) 269-3923
May 5, 1986 Los Angeles, California U.S. Citizen

EDUCATION and TRAINING:

Stanford University, Stanford, California B.S., Biological Sciences

8/04-06/07

Cambridge University, Cambridge, UK MPhil, Development Studies Gates Cambridge Fellowship

08/07-06/08

Harvard Medical School, Boston, Massachusetts MD

08/08-06/13

Harvard Kennedy School of Government Urban Policy and Human Rights

08/14-12/14

UCLA Medical Center-Olive View Medical Center Residency: Emergency Medicine

07/13-06/17

Chief Resident UCLA Medical Center-Olive View Medical Center

Residency: Emergency Medicine

07/16-06/17

LICENSURE: State of California, A134884

02/15 -

Page 1 of 8

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 87 of 189 Page ID #:87

Drug Enforcement Agency

02/15 -

Shamsher Samra MD, MPhil

CERTIFICATION:

Diplomate, American Board of Emergency Medicine

06/14/18

PROFESSIONAL EXPERIENCE:

Assistant Professor Emergency Medicine Harbor-UCLA Medical Center Los Angeles, California

08/17 -

Attending Physician Correctional Health Services Twin Towers Correctional Facility Los Angeles, California

08/17-

Medical Director Whole Person Care Reentry Department of Health Services Los Angeles, California

08/18 –

Course Director Introduction to Social Medicine UCLA David Geffen School of Medicine Los Angeles, California

09/18 –

Co-Director Trauma Recovery Center Harbor-UCLA Medical Center Torrance, California

12/17-

Co-Director Hospital Based Violence Intervention Program 3/19 Harbor-UCLA Medical Center Torrance, California

PROFESSIONAL ACTIVITIES:

Committee Services 1. UCLA International and Domestic Health Equity 2. Correctional Health Services Care Transitions 3. Whole Person Care Delivery Systems Integration 4. Whole Person Care Clinical Innovations 5. Hospital Based Violence Intervention Consortium 6. DPH Trauma Prevention Initiative 7. Harbor UCLA Diversity Committee 8. Harbor Supports Undocumented Patients 9. Los Angeles Office of Violence Prevention 10. Co- Lead Los Angeles Hospital Based Violence Intervention Consortium

Community Service

Page 2 of 8

01/17 08/17 01/18 – 06/19 01/18 – 06/19 12/18 – 06/18 – 06/18 06/18 06/19 -
06/19 -

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 88 of 189 Page ID #:88

1. Strategic Action for a Just Economy Board Member 2. Doctors for Global Health Board Member 3. Tijuana Border Wound Clinic 4. Frontline Wellness Network Founding Member 5. Southern California Physicians for Health Equity

Shamsher Samra MD, MPhil 12/13- 12/18 08/17 – 06/16 – 08/17 – 06/18 -

Professional & Scholarly Associations 1. Society for Academic Emergency Medicine 2. American College of Emergency Physicians 3. ACEP Social Emergency Medicine Section 4. SAEM Social Emergency Medicine Interest Group

10/14 10/14 – 06/17 – 01/18 -

HONORS AND SPECIAL AWARDS: 1. Gates- Cambridge Fellowship

06/07 – 06/08

RESEARCH GRANTS AND FELLOWSHIPS RECEIVED:

Public Health Institute California Bridge Program Grant Goal: Implement and study opiate treatment Role: Co- PI

02/2019-06/2020

California Community Foundation

04/2018-04/2020

Hospital Based Violence Intervention Grant

Goal: Implement a hospital-based violence intervention program

Role: Co-PI

California Victims Compensation Board Trauma Recovery Center Grant Goal: Establish a Trauma Recovery Center Role: Co-PI

04/2019-04/2021

Whole Person Care Los Angeles

06/2019-06/2021

Hospital Based Violence Intervention Grant

Goal: Expand Hospital Based Violence Intervention Programming Regionally

Role: PI

LECTURES AND PRESENTATIONS:

Local Lectures:

1. “Neurogenic Shock”

08/2015

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los

Angeles. California,

2. “Mechanical v. Traditional Chest Compressions”

05/2015

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los Angeles.

California

3. ED Based Interventions for At-Risk Drinking”

05/2016

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Shamsher Samra MD, MPhil

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los Angeles.

California, May 2016

4. Introduction to Trauma

06/2016

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los Angeles.

California

5. Course Director “Introduction to Social Medicine”

08/2017

David Geffen School of Medicine, Los Angeles California

6. Thoracic Trauma

09/2016

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los Angeles.

California

7. Care for the Homeless Patient

10/2016

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los

Angeles. California

8. Correctional Health and Primary Care Connections

01/2019

Department of Health Services Reentry Learning Collaborative, California Endowment. Los

Angeles, California

9. Health Equity and Liberation Medicine

02/2019

Harbor-UCLA Medical Center Grand Rounds, Carson California

10. Structural Vulnerability

08/2019

Harbor-UCLA Emergency Medicine Grand Rounds , Carson CA

11. Social Emergency Medicine CPC

10/2019

Harbor-UCLA Emergency Medicine Grand Rounds , Carson CA

12. Hospital Based Violence Intervention

10/2019

LAC-USC Emergency Medicine Grand Rounds, Los Angeles California

13. Community Mental Health

11/2019

Charles Drew Medical School Health Equity Course, Los Angeles California

14. Less Than Lethal Weapons

01/2020

Harbor-UCLA Emergency Medicine Grand Rounds, Carson CA

Regional Lectures:

1. Barriers to the “Right To Health” Amongst Patients of a Public

Emergency Department Following Implementation of the Affordable Care Act 03/2015

Western Regional SAEM Conference, Tucson, AZ

2. Structural Vulnerability

05/2017

Emergency Medicine All-LA Regional Conference, LAC-USC Medical Center, Los Angeles,

California

3. Craniofacial Complications

07/2017

Emergency Medicine Conference, Kaweah-Delta Hospital, Visalia, California

4. Development and Implementation of a Novel Medicaid Enrolment Process

for Correctional Health Settings.

06/2018

Southern California DII Conference. Los Angeles, California

5. Incarceration and Health

05/2019

All-LA Regional Conference, Harbor-UCLA, Los Angeles, California

6. Injuries from “Non-Lethal” Weapons

08/2019

Harbor UCLA Regional Trauma and Critical Care Conference, Carson, CA.

National Lectures:

Page 4 of 8

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 90 of 189 Page ID #:90 Shamsher Samra MD, MPhil

1. Barriers to the “Right To Health” Amongst Patients

of a Public Emergency Department Following

Implementation of the Affordable Care Act.

05/2015

National Society of Academic Emergency Medicine Conference. San Diego

2. A Case of Migrating Chest Pain

04/2016

Council of Emergency Medicine Residency Directors National Conference, Annual Lecture,

Nashville, TN

3. Craniofacial Complications

05/2017

Society of Academic Emergency Medicine Conference, Orlando FL

4. Undocumented Emergency Department Patients: We Can Do Better

05/2018

National Society of Academic Emergency Medicine Conference. Indianapolis

5. Migrant Heath and Liberation Medicine

12/2018

Second Annual Health of Migrants Conference. Galveston, Texas.

6. Health Equity and Emergency Medicine: A Perfect Fit

05/2019

Society of Academic Emergency Medicine Conference, Las Vegas NV

7. Leveraging Community Health Workers to Improve Population Health

06/2019

Americas Essential Hospitals Vitals Conference, Miami FL

8. Breaking the Cycle: Hospital Based Violence Intervention

06/2019

Americas Essential Hospitals Vitals Conference, Miami FL

International Lectures:

1. Discapacidad: Trauma de Sistema Nervioso Central: Lesiones del Cerebro y Medula Espinal Pre-hospital Training Program. Managua, Nicaragua.

02/2017

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Shamsher Samra MD, MPhil
PUBLICATIONS/BIBLIOGRAPHY:
RESEARCH PAPERS
A. Research Papers - Peer Reviewed 1. Hale MB, Krutzik PO, Samra SS, Crane JM, Nolan GP, 2009 Stage Dependent Aberrant Regulation of Cytokine-STAT Signaling in Murine Systemic Lupus Erythematosus. PLoS ONE 4(8): e6756. doi:10.1371/journal.pone.000675 2. Samra SS, Crowley J, Fawsi M, 2011 The right to water in rural Punjab: Assessing equitable access to water in the context of the ongoing Punjab Rural Water Supply Project. Health and Human Rights Journal. Volume 13, No. 2. 3. Samra, SS et al. “Barriers to the Right to Health Among Patients of a Public Emergency Department After Implementation of the Affordable Care Act.” Health equity vol. 3,1 186-192. 2 May. 2019, doi:10.1089/heq.2018.0071 4. Samra, SS, Taira, B., Pinheiro, E., Trotzky-Sirr, R., & Schneberk, T. (2019). Undocumented Patients in the Emergency Department: Challenges and Opportunities. Western Journal of Emergency Medicine: Integrating Emergency Care with Population Health.
B. Research Papers - Peer Reviewed (In Press) 5. Saadi A, Cheffers ML, Taira B, Trotzky-Sirr R, Parmar P, Samra SS, Morrison JL, Shah S, Schneberk TW, “Building Immigration-Informed, Cross-Sector Coalitions: Findings from the Los Angeles County Health Equity for Immigrants Summit,” Health Equity

EDITORIALS 1. Maciag K, Samra SS, Sorscher SS. Harvard as Big Pharma. The Harvard Crimson.

03/2009

ABSTRACTS 1. Samra SS, Taira B, Richman, M, McCullough. “Barriers to the “Right To Health” Amongst Patients of a Public Emergency Department Following Implementation of the Affordable Care Act.” Western Regional Society of Academic Emergency Medicine Conference, Tucson, AZ, March 2015 2. Samra SS, Taira B, Richman, M, McCullough. “Barriers to the “Right To Health” Amongst Patients of a Public Emergency Department Following Implementation of the Affordable Care Act.” National Society of Academic Emergency Medicine Conference. San Diego, May 2015 3. Samra SS, Taira B, Hseih D, Schneberk, T. “Undocumented Emergency Department Patients: We Can Do Better” National Society of Academic Emergency Medicine Conference. Indianapolis, Indiana , May 2018 4. Taira, B, Torres, J, Nguyen, A, Samra SS. “Emergency Department Provider Knowledge of and Preferences for Language Assistance for the Care of Limited English Proficiency Patient” National Society of Academic Emergency Medicine Conference. Indianapolis, Indiana , May 2018 5. Schneberk T, Samra SS. “Creation of a novel medico-legal conduit to assist undocumented individuals presenting to the Emergency Department to address immigration legal needs” National Society of Academic Emergency Medicine Conference. Indianapolis, Indiana , May 2018

Page 6 of 8

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 92 of 189 Page ID #:92
Shamsher Samra MD, MPhil 6. Hsieh D, Samra SS, “Development and Implementation of a Novel Medicaid Enrolment
Process for Correctional Health Settings.” Southern California Dissemination, Implementation, and Improvement Conference. Los Angeles, California. June 2018 7. Terao N, Hsieh D, Samra SS, Salas A, Murray J, Deane M, Carrillo P. “Implementing an Effective Hospital-Based Violence Intervention Program at a Los Angeles County Trauma Center” Southern California Dissemination, Implementation, and Improvement Conference. Los Angeles, California. June 2018 8. Kiwon Yoo, MPH, Shamsher Samra, MD, MPhil, Karen Bernstein, MPH and Dennis Hsieh, MD, JD, Reducing Morbidity, Mortality, and Recidivism for Jail and Prison Re-Entry Patients: The Los Angeles County Whole Person Care Re-Entry Program. American Public Health Association Conference 2019 9. Susie Lee, Dennis Hsieh, MD, JD, Shamsher Samra, MD, MPhil, Clemens Hong, MD, MPH, Henna Zaidi, MPP, MPH and Sasha Rumburg. Longitudinal Patient Accompaniment Services by Community Health Workers (CHWs): Improving Coordination of Primary Care Services (PCS) for High-Risk Populations in Los Angeles County. American Public Health Association Conference 2019 10. Natalie Terao, MD, MS, Dennis Hsieh, MD, JD, Shamsher Samra, MD, MPhil, Brittney Mull, MD, MPH, Joseph Friedman, MPH, Tony Kuo, MD, MSHS, Noel Barragan, MPH, Molly Deanne, MD, Antoinette Salas, RN, BSN, MICN, Arcelia Tavarez, Paul Carrillo and Jennifer Murray, MSW, LCSW. Implementation and Evaluation of a Hospital-Based Violence Intervention Program at a Los Angeles County Trauma Center. American Public Health Association Conference 2019 11. Shamsher Samra, MD, MPhil, Dennis Hsieh, MD, JD, Karen Bernstein, MPH and Kiley Hoffman, MSW. Expansion of a Jail Based Primary Care Reentry Program. American Public Health Association Conference 2019 12. Tony Kuo, MD, MSHS, Noel Barragan, MPH, Shamsher Samra, MD, MPhil and Rochelle Dicker, MD. Population Health Perspective on Violence Prevention in the Hospital Setting: Intervening During a “Teachable Moment” in a Victim’s Life. American Public Health Association Conference 2019 13. Joseph Friedman, MPH, Shamsher Samra, MD, MPhil, Dennis Hsieh, MD, JD, Vincent Chong, MD, MS, Lee Plantmason, MD, Todd Schneberk, MD, MSHPM, MA, Karen Kwaning, Molly Deanne, MD, Brittney Mull, MD, Philippe Bourgois, PhD and Rochelle Dicker, MD. Racial and Geographic Disparities in Violent Injury Rates: A Baseline Assessment for a Los Angeles Hospital-Based Violence Intervention Program. American Public Health Association Conference 2019 14. Dennis Hsieh, MD, JD, Shamsher Samra, MD, MPhil, Kiwon Yoo, MPH, Karen Bernstein, MPH and Mark Burstyn, Pharm.D. Providing a 30 Day Supply of Medications upon Discharge from Los Angeles County Jails. American Public Health Association Conference 2019
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EXHIBIT 8

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1

DECLARATION OF MARC STERN, M.D.

2

I, Marc Stern, declare as follows:

3

1. I am a physician, board-certified in internal medicine, specializing in

4 correctional health care. I most recently served as the Assistant Secretary for Health

5 Care at the Washington State Department of Corrections. I served for four years as

6 a medical subject matter expert for the Officer of Civil Rights and Civil Liberties,

7 U.S. Department of Homeland Security, and as a medical subject matter expert for

8 one year for the California Attorney General’s division responsible for monitoring

9 the conditions of confinement in Immigration and Customs Enforcement (ICE)

10 detention facilities. I am a court-appointed medical expert in the class action

11 Parsons v. Ryan, CV-12-00601-PHX-ROS. Currently, I am the Medical Advisor for

12 the National Sheriffs’ Association on matters related to preventive measures

13 responding to COVID-19. Additionally, in 2009, at the request of the California

14 Receiver Clark Kelso, I toured 10 California state prisons to assess whether or not

15 the Receiver’s assignment—to restore the delivery of health services within the

16 California state prisons to constitutionally adequate levels – had been completed.

17 Attached as Exhibit A is a copy of my curriculum vitae.

18

2. COVID-19 is a serious disease that has reached pandemic status, and is

19 straining the health care systems around the world. As of May 15, 2020, at least

20 1.3 million people in the United States had received confirmed diagnoses of

21 COVID-19. At least 83,000 people have died in the United States. Approximately

22 71,000 of the confirmed cases were in California, with more than 2,900 having died.

23 These numbers will continue to increase, perhaps exponentially. Moreover, these

24 figures must be considered in light of nationwide shortages of COVID-19 tests,

25 meaning the actual numbers are likely significantly higher than those reported.

26

3. The Lompoc complex (“Lompoc”) is comprised of Federal

27 Correctional Institution Lompoc (“FCI Lompoc”) and United States Penitentiary

28 Lompoc (“USP Lompoc”). USP Lompoc itself has two components, a low-security

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1 camp and a medium-security prison. In total, the facilities have a rated design

2 capacity of 2058. However, as of May 15, 2020 they had a total population of 2680,

3 thus exceeding capacity. As of May 15, 2020, there are a total of 924 people at FCI

4 Lompoc who are currently or were recently positive for COVID-19, including 870

5 residents and 14 staff currently deemed positive, and 37 residents reported as being

6 “recovered” after previously testing positive. As of May 15, there are a total of 140

7 people at USP Lompoc who are currently or were recently positive for COVID-19,

8 including 15 residents and 16 staff currently deemed positive, two resident deaths,

9 and 101 residents reported as being “recovered” after previously testing positive.

10 The BOP website does not show what criteria it is using to consider someone

11 “recovered.”

12

4. COVID-19 is a novel respiratory virus. It is spread primarily through

13 droplets generated when an infected person coughs or sneezes, or through droplets

14 of saliva or discharge from the nose. There is no vaccine for COVID-19, and there is

15 no cure for COVID-19. No one has prior immunity. The only way to control the

16 virus is to use preventive strategies, including social distancing.

17

5. The time course of the disease can be very rapid. Individuals can show

18 the first symptoms of infection in as few as two days after exposure and their

19 condition can seriously deteriorate in as few as five days (perhaps sooner) after that.

20 It is believed that people can transmit the virus without being symptomatic and,

21 indeed, that a significant amount of transmission may be from people who are

22 infected but asymptomatic or pre-symptomatic.

23

6. Treatment for serious cases of COVID-19 requires immediate and

24 substantial medical intervention.

25

7. The effects of COVID-19 are especially serious for people who are

26 most vulnerable. Vulnerable people include people over the age of 50, and those of

27 any age with underlying health problems such as—but not limited to—weakened

28 immune systems (which can be caused by a variety of conditions, including but not

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DECLARATION OF MARC STERN, M.D.

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1 limited to cancer treatment, smoking, and immune weakening medications),

2 moderate to severe asthma, diabetes, serious heart and lung disease, severe obesity,

3 liver disease, and possibly pregnancy. While the CDC typically classifies only

4 people 65 and older as vulnerable, incarcerated individuals tend to be in poorer

5 health than those in the general population, justifying the use of an earlier cutoff in

6 classifying people deemed vulnerable to COVID-19.

7

8. In light of the above, an outbreak of COVID-19 could put significant

8 pressure on or exceed the capacity of local health infrastructure. In the absence of

9 a vaccine and a cure, a significant number of people who are infected with the virus

10 will die. Buttressing these concerns, it is not yet clear whether people who have

11 already been infected with COVID-19 gain immunity against future infection. To

12 the extent that the health care infrastructure is overloaded, people will die

13 unnecessarily because necessary respirators and hospital facilities are unavailable.

14

9. Public health authorities recommend a number of preventive steps to

15 help prevent or decrease the spread of COVID-19, with perhaps the most important

16 measure being social distancing.

17

10. Prisons are congregate environments, i.e., places where people live and

18 sleep in close proximity. Many people live in dormitory-style units with multiple

19 rows of bunk beds close together or in small multi-person cells that often surround

20 common areas where incarcerated people crowd together during the day. Social

21 distancing in ways that are recommended by public health officials can be difficult,

22 if not impossible, in prisons, even when the population is under design capacity.

23 When prisons are at or above capacity, it becomes even more difficult to implement

24 appropriate social distancing measures.

25

11. Infectious diseases that are transmitted via the air or touch (like

26 COVID-19) are more likely to spread, placing people at risk. For these reasons, if—

27 but more likely when—COVID-19 is introduced into a prison, the risks of spread is

28 greatly, if not exponentially, increased as already evidenced by spread of COVID-19

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1 in two other congregate environments: nursing homes and cruise ships.

2

12. But prisons actually have an attribute that makes them more dangerous

3 than cruise ships. Unlike cruise ships, prisons are not closed systems. Staff, new

4 detainees, attorneys, and inanimate objects—all potential vectors for virus—are

5 introduced into the system every day. Thus, even if the government makes best

6 efforts to follow preventive guidelines, the introduction of virus into a detention

7 center is almost inevitable. Moreover, because staff and some visitors travel each

8 day from the facilities back to their homes, when infection develops in the facility,

9 there is also significant risk that the infection will be transmitted outside the facility,

10 to the family and friends of staff and visitors. In short, the risks that confront

11 individuals at detention facilities such as Lompoc stem from their very nature as

12 congregate environments. Even if the healthcare provided were excellent, there

13 would still be substantial risk; if the healthcare provided were substandard, those

14 substantial risks are only elevated.

15

13. I understand the following to be allegations in the Complaint. If these

16 allegations are confirmed true, the conditions at Lompoc are deeply concerning:

17

 In total, the facilities comprising the Lompoc complex have

18

a rated design capacity of 2058. However, as of May 14, 2020,

19

they had a population of 2680, thus exceeding capacity.

20

 As of May 14, 2020, more than 1,061 residents and staff had

21

tested positive for COVID-19.

22

 Sick people from FCI Lompoc are being moved to living unit at

23

USP Lompoc. The living space there is double-occupancy cells.

24

The living unit is on near-total lockdown with residents confined

25

to their cells almost 24 hours a day. Conditions are very

26

unsanitary. Nobody can shower or change into clean clothes.

27

 At the low-security camp at USP Lompoc, people live in open-

28

plan dormitories with shared bathrooms. About 140 people live

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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in these dormitories and sleep on bunk beds approximately six feet apart from each other. There are no internal walls so everyone and all the bunk beds are in one open space. All 140 people share six toilets and six showers. Dormitories are crowded and people congregate in common areas. Residents also have to stand in line to get medication, and there is not enough space for social distancing.  Initially, the practice appears to have been to transfer sick people to the solitary confinement unit. Some residents who had tested positive were left there for up to four days with no medical attention. Eventually, prison authorities re-opened two dormitories which had been closed three years ago due to mold contamination in order to house sick people. The re-opened dormitories are extremely unsanitary, and residents sleep on mattresses officers have scattered across the ground. Residents here spend up to five days at a time with no treatment for COVID-19. There is no soap, and people are not being allowed to shower.  At the medium-security prison at USP, two residents share cells that are normally single-occupancy. Residents who become ill with presumptive COVID-19 are not isolated from the healthy population. The current prison practice seems to be to allow people to hit “rock-bottom” before being treated for COVID-19.  Residents were only give one mask in April, and have been reusing that mask since. Hand sanitizer is non-existent and soap is not plentiful.  It does not appear that anyone who tests positive and then “recovers” is tested again before being returned to the general
5
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1

population.

2

 Residents are being denied regular medical treatment they had

3

received prior to the outbreak. For example, medically necessary

4

procedures scheduled prior to the outbreak have been delayed

5

indefinitely.

6

14. These conditions, if true—a track record of not being able to prevent

7 predictable and widespread infection, continued widespread infection, unsanitary

8 living conditions, inadequate testing, and most importantly overcrowding—make it

9 exceedingly difficult, if not impossible, to ensure the safety of residents who remain

10 housed at the facility. In particular, these conditions mean that social distancing is

11 very difficult, if not impossible, to effectively implement.

12

15. I have also reviewed a declaration submitted by Kiarra Carror, the

13 sister of Yonnedil Carror Torres, a resident of USP Lompoc. In addition to some of

14 the representations above, the declarant indicates that: (1) Torres resides in a cell

15 designed to house only a single person but he shares his cell with another resident,

16 including sharing a toilet; (2) For five straight days, Torres asked correctional

17 officers for medical assistance due to a fever, diarrhea, and body aches, until he

18 eventually collapsed in his cell from acute respiratory failure; (3) After every

19 resident on Torres’s block began banging their cell doors in unison to attract the

20 attention of correctional officers, Torres was taken to a hospital, where he was

21 placed into a medically-induced coma after being placed on a ventilator; (4) At the

22 hospital, he was tested for the first time for COVID-19, with the result coming back

23 positive; (5) Torres has been informed by physicians that he suffered acute lung

24 damage from COVID-19 due to his asthma and his lung capacity severely

25 deteriorated as a result; and (6) Torres has seen other residents similarly struggle to

26 receive medical attention, with their symptoms having to become quite severe to

27 receive treatment.

28

16. I cannot draw any conclusions from a single second-hand report.

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1 However, if these allegations were found to be accurate, and if they were found to

2 be representative of the system of health care delivery operating at USP Lompoc

3 and FCI Lompoc, I would likely draw the following conclusions: (1) Lompoc

4 operators are exposing residents to a significant risk of harm by ensuring that

5 residents cannot socially distance. (2) The health care delivery system at Lompoc is

6 currently unable to provide minimally safe health care, i.e., the current system poses

7 a significant risk of serious harm to residents, a risk that will only increase as more

8 residents become symptomatic from COVID-19 or the condition of symptomatic

9 residents deteriorates as their disease progresses. Indeed, Torres’s sister’s account is

10 alarming, as she claims that Lompoc staff refused her brother treatment until his

11 condition was at a critical stage, at which point they finally sent him to a hospital for

12 medically necessary treatment.

13

17. If the second conclusion above were true, I would need more

14 information through discovery to determine the cause(s). However, based on my

15 experience operating, evaluating, and monitoring correctional health care systems, it

16 would likely be the result of one or more of the following factors: insufficient

17 number of staff; inappropriate types of staff (for example, using licensed vocational

18 nurses, performing beyond their licensed scope of practice, to carry out the duties of

19 a registered nurse); insufficient training; and insufficient supervision.

20

18. For these reasons, I recommend consideration of a concerted effort to

21 downsize the population of Lompoc to the lowest number possible immediately,

22 with priority given to those at high risk of harm due to their age and health status.

23 This will both allow Lompoc to implement more effective preventive and treatment

24 measures while simultaneously granting released or transferred residents access to

25 minimally acceptable living conditions. To maximize their effectiveness in reducing

26 the spread and impact of the virus at Lompoc, these downsizing measures must be

27 implemented now.

28

19. There are two values to immediate downsizing. First, downsizing will

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1 reduce Lompoc’s density of congregation. This will allow people in prison to

2 maintain better social distancing. The reduction in population will also make it

3 easier for prison authorities to implement infection prevention measures such as:

4 provision of cleaning supplies to residents; frequent laundering of towels and

5 clothes; provision of soap for handwashing; frequent cleaning of transactional

6 surfaces; etc. Furthermore, downsizing will allow prison health care professionals to

7 devote their attention to a smaller number of residents, potentially improving the

8 quality of care those residents receive. At any prison it is beneficial to conserve

9 medical resources in the face of a pandemic such as the one we presently face. All

10 these steps can slow or stop the spread of infection (or re-infection) and improve

11 treatment outcomes if they are currently inadequate, to the benefit of residents and

12 staff and, ultimately, the community at large.

13

20. Second, immediate downsizing that prioritizes residents who are

14 elderly and those with underlying health conditions reduces the likelihood they will

15 contract the disease or suffer severe medical consequences as a result of being

16 infected. Individuals in these groups are at the highest risk of severe complications

17 from COVID-19 and when they develop severe complications they will be

18 transported to community hospitals. Reducing the spread and severity of infection in

19 a prison slows, if not reduces, the number of people who will become ill enough to

20 require hospitalization where they will be using scarce community resources (ER

21 beds, general hospital beds, ICU beds) which also in turn reduces the health and

22 economic burden to the local community at large. Indeed, in light of the new reality

23 in which we operate, decisions to release residents from custody—traditionally

24 concerned primarily with public safety—must also take into account the impact on

25 public health. It is for this reason that release or transfer1 of at-risk residents not only

26

27 1 Transfer is only acceptable if the transfer itself does not pose significant risks and
28 is a transfer to another facility where the quality of health care and COVID-19

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1 reduces their risk of death, but also increases public safety when the impact on

2 public health is also considered.

3

21. Residents who have received confirmed diagnoses of COVID-19 in

4 most cases may be safely released to the community, where they can quarantine or

5 isolate at home. To the extent that the quality of care these residents currently

6 receive is inadequate, release would also ensure that residents have access to better

7 health care.

8

22. In addition to the downsizing described above, and to the extent they

9 are not already being implemented, the following steps should immediately be

10 mandated of the Respondents in order to protect any residents who remain in

11 custody:

12

a. Social Distancing. The prison must ensure that residents are able

13 to maintain adequate social distancing during required or necessary activities, such

14 as collecting food, eating, and receiving medications.

15

b. Immediate and Continued Testing. Patients (both staff and

16 residents) who require testing (or re-testing) based on public health

17 recommendations and the opinion of a qualified medical professional, should be

18 tested for COVID-19.

19

c. Immediate Screening. Defendants must be required to screen

20 each employee or other person entering the facility every day to detect fever over

21 100 degrees, cough, shortness of breath, other symptoms as currently recommended

22 by CDC, and exposure to someone who is symptomatic or under surveillance for

23 COVID-19, or screening as required by public health authorities. A record should be

24 made of each screening.

25

d. Quarantine. The prison must establish non-punitive quarantine

26 for all individuals believed to have been exposed to COVID-19, but not yet

27 28 precautions are safe.

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1 symptomatic, and non-punitive isolation for those believed to be infected with

2 COVID-19 and potentially infectious. Any individual who must interact with those

3 potentially or likely inflicted with COVID-19 must utilize protective equipment as

4 directed by public health authorities. In short, every possible effort must be made to

5 separate infected or potentially infected individuals from the rest of the incarcerated

6 population and each other.

7

e. Post-Isolation or Quarantine. Individuals should only be released

8 from quarantine or isolation in accordance with CDC guidelines as modified by

9 local public health authorities, after which they should be monitored in accordance

10 with those same guidelines.

11

f. Institutional Hygiene. The prison must be required to provide

12 adequate disinfection of all high-touch areas and cells.

13

g. Personal Hygiene. The prison must be required to provide hand

14 soap, disposable paper towels, and access to water to allow residents to wash their

15 hands on a regular basis, free of charge and ensure replacement products are

16 available as needed. Correctional staff should be allowed to carry hand sanitizer

17 with alcohol on their person, and residents should be allowed to use hand sanitizer

18 with alcohol when they are in locations or activities where hand washing is not

19 available. Correctional officers should be required to wear personal protective

20 equipment and perform hand hygiene when appropriate, consistent with the CDC

21 guidance as modified by local health authorities

22

h. Waive Copays. There must be a waiving of copays for medical

23 evaluation and care related in any way to COVID-19 and/or its symptoms. A waiver

24 of these types of copays is necessary to avoid disincentivizing patients from

25 requesting medical treatment. Patients with symptoms of possible COVID-19 should

26 be seen quickly.

27

i. Access to Care. All residents should have timely access to an

28 appropriately qualified health care professional.

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1

j. Personal Protective Equipment. Those residents with a cough

2 should be provided masks as soon as they inform staff of this symptom or staff

3 notice this symptom.

4

k. Supply Chain. The prison must be required to identify the

5 supplies and other materials upon which the institution is dependent, such as food,

6 medical supplies, certain medicines, cleaning products, etc., and prepare for

7 shortages, delays or disruptions in the supply chain.

8

23. Thus, in summary, consideration should be given to immediately

9 reducing the number of individuals imprisoned at Lompoc for the health and safety

10 of the prisons and our communities, taking into account the totality of risk posed to

11 the public safety by each individual. This population reduction should begin with

12 the most medically vulnerable which includes those over age 50 and those with

13 CDC-defined underlying health conditions.

14

I declare under penalty of perjury under the laws of the United States that the

15 foregoing is true and correct.

16

Executed May 15, 2020, at Tumwater, Washington.

17

18 Marc F. Stern. M.D., M.P.H.
19

20

21

22

23

24

25

26

27

28

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EXHIBIT A

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 106 of 189 Page ID #:106

MARC F. STERN, M.D., M.P.H., F.A.C.P.

May, 2020

marcstern@live.com +1 (360) 701–6520

SUMMARY OF EXPERIENCE

CORRECTIONAL HEALTH CARE CONSULTANT

2009 – PRESENT

Consultant in the design, management, and operation of health services in a correctional setting to assist in evaluating, monitoring, or providing evidence-based, cost-effective care consistent with constitutional mandates of quality.

Current activities include:  COVID-19 Medical Advisor, National Sheriffs Association (2020 - )
 Advisor to various jails in Washington State on patient safety, health systems, and related health care and custody staff activities and operations, and RFP and contract generation (2014 - )
 Consultant to the US Department of Justice, Civil Rights Division, Special Litigation Section. Providing investigative support and expert medical services pursuant to complaints regarding care delivered in any US jail, prison, or detention facility. (2010 - ) (no current open cases)
 Physician prescriber/trainer for administration of naloxone by law enforcement officers for the Olympia, Tumwater, Lacey, Yelm, and Evergreen College Police Departments (2017 - )
 Consultant to the Civil Rights Enforcement Section, Office of the Attorney General of California, under SB 29, to review the healthcare-related conditions of confinement of detainees confined by Immigration and Customs Enforcement in California facilities (2017 - )
 Rule 706 Expert to the Court, US District Court for the District of Arizona, in the matter of Parsons v. Ryan (2018 - )

Previous activities include:  Consultant to Human Rights Watch to evaluate medical care of immigrants in Homeland Security detention (2016 -
2018)
 Consultant to Broward County Sheriff to help develop and evaluate responses to a request for proposals (2017 2018)
 Member of monitoring team (medical expert) pursuant to Consent Agreement between US Department of Justice and Miami-Dade County (Unites States of America v Miami-Dade County, et al.) regarding, entre outre, unconstitutional medical care. (2013 - 2016)
 Jointly appointed Consultant to the parties in Flynn v Walker (formerly Flynn v Doyle), a class action lawsuit before the US Federal District Court (Eastern District of Wisconsin) regarding Eighth Amendment violations of the health care provided to women at the Taycheedah Correctional Institute. Responsible for monitoring compliance with the medical component of the settlement. (2010 - 2015)
 Consultant on “Drug-related Death after Prison Release,” a research grant continuing work with Dr. Ingrid Binswanger, University of Colorado, Denver, examining the causes of, and methods of reducing deaths after release from prison to the community. National Institutes of Health Grant R21 DA031041-01. (2011 - 2016)
 Consultant to the US Department of Homeland Security, Office for Civil Rights and Civil Liberties. Providing investigative support and expert medical services pursuant to complaints regarding care received by immigration detainees in the custody of U.S. Immigration and Customs Enforcement. (2009 - 2014)
 Special Master for the US Federal District Court (District of Idaho) in Balla v Idaho State Board of Correction, et al., a class action lawsuit alleging Eighth Amendment violations in provision of health care at the Idaho State Correctional Institution. (2011 - 2012)
 Facilitator/Consultant to the US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, providing assistance and input for the development of the first National Survey of Prisoner Health. (2010-2011 )
 Project lead and primary author of National Institute of Corrections’ project entitled “Correctional Health Care Executive Curriculum Development,” in collaboration with National Commission on Correctional Health Care. NIC commissioned this curriculum for its use to train executive leaders from jails and prisons across the nation to better manage the health care missions of their facilities. Cooperative Agreement 11AD11GK18, US Department of Justice, National Institute of Corrections. (2011 - 2015 )

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 107 of 189 Page ID #:107

Marc F. Stern, M.D.

Page 2

 Co-teacher, with Jaye Anno, Ph.D., for the National Commission on Correctional Health Care, of the Commission’s standing course, An In-Depth Look at NCCHC’s 2008 Standards for Health Services in Prisons and Jails taught at its national meetings. (2010 - 2013)
 Contributor to 2014 Editions of Standards for Health Services in Jails and Standards for Health Services in Prisons, National Commission on Correctional Health Care. (2013)
 Consultant to the California Department of Corrections and Rehabilitation court-appointed Receiver for medical operations. Projects included: o Assessing the Receiver’s progress in completing its goal of bringing medical care delivered in the Department to a constitutionally mandated level. (2009) o Providing physician leadership to the Telemedicine Program Manager tasked with improving and expanding the statewide use of telemedicine. (2009)
 Conceived, co-designed, led, and instructed in American College of Correctional Physicians and National Commission on Correctional Health Care’s Medical Directors Boot Camp (now called Leadership Institute), a national training program for new (Track “101”) and more experienced (Track “201”) prison and jail medical directors. (2009 - 2012)
 Participated as a member of a nine-person Delphi expert consensus panel convened by Rand Corporation to create a set of correctional health care quality standards. (2009)
 Convened a coalition of jails, Federally Qualified Health Centers, and community mental health centers in ten counties in Washington State to apply for a federal grant to create an electronic network among the participants that will share prescription information for the correctional population as they move among these three venues. (2009 2010)
 Participated as a clinical expert in comprehensive assessment of Michigan Department of Corrections as part of a team from the National Commission on Correctional Health Care. (2007)
 Provided consultation to Correctional Medical Services, Inc., St. Louis (now Corizon), on issues related to development of an electronic health record. (2001)
 Reviewed cases of possible professional misconduct for the Office of Professional Medical Conduct of the New York State Department of Health. (1999 – 2001)
 Advised Deputy Commissioner, Indiana State Board of Health, on developing plan to reduce morbidity from chronic diseases using available databases. (1992)
 Provided consultation to Division of General Medicine, University of Nevada at Reno, to help develop a new clinical practice site combining a faculty practice and a supervised resident clinic. (1991)

OLYMPIA BUPRENORPHINE CLINIC, OLYMPIA, WASHINGTON

2019 - PRESENT

Volunteer practitioner at a low-barrier clinic to providing Medication Assisted Treatment (buprenorphine) to opioid dependent individuals wishing to begin treatment, until they can transition to a long-term treatment provider

OLYMPIA FREE CLINIC, OLYMPIA, WASHINGTON

2017 - PRESENT

Volunteer practitioner providing episodic care at a neighborhood clinic which provides free care to individuals without health insurance until they can find a permanent medical home

OLYMPIA UNION GOSPEL MISSION CLINIC, OLYMPIA, WASHINGTON

2009 – 2014

Volunteer practitioner providing primary care at a neighborhood clinic which provides free care to individuals without health insurance until they can find a permanent medical home; my own patient panel within the practice focuses on individuals recently released jail and prison.

WASHINGTON STATE DEPARTMENT OF CORRECTIONS

2002 – 2008

Assistant Secretary for Health Services/Health Services Director, 2005 – 2008 Associate Deputy Secretary for Health Care, 2002 – 2005

Responsible for the medical, mental health, chemical dependency (transiently), and dental care of 15,000 offenders in total confinement. Oversaw an annual operating budget of $110 million and 700 health care staff.
 As the first incumbent ever in this position, ushered the health services division from an operation of 12 staff in headquarters, providing only consultative services to the Department, to an operation with direct authority and

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responsibility for all departmental health care staff and budget. As part of new organizational structure, created and filled statewide positions of Directors of Nursing, Medicine, Dental, Behavioral Health, Mental Health, Psychiatry, Pharmacy, Operations, and Utilization Management.
 Significantly changed the culture of the practice of correctional health care and the morale of staff by a variety of structural and functional changes, including: ensuring that high ethical standards and excellence in clinical practice were of primordial importance during hiring of professional and supervisory staff; supporting disciplining or career counseling of existing staff where appropriate; implementing an organizational structure such that patient care decisions were under the final direct authority of a clinician and were designed to ensure that patient needs were met, while respecting and operating within the confines of a custodial system.
 Improved quality of care by centralizing and standardizing health care operations, including: authoring a new Offender Health Plan defining patient benefits based on the Eighth Amendment, case law, and evidence-based medicine; implementing a novel system of utilization management in medical, dental, and mental health, using the medical staffs as real-time peer reviewers; developing a pharmacy procedures manual and creating a Pharmacy and Therapeutics Committee; achieving initial American Correctional Association accreditation for 13 facilities (all with almost perfect scores on first audit); migrating the eight individual pharmacy databases to a single central database.
 Blunted the growth in health care spending without compromising quality of care by a number of interventions, including: better coordination and centralization of contracting with external vendors, including new statewide contracts for hospitalization, laboratory, drug purchasing, radiology, physician recruitment, and agency nursing; implementing a statewide formulary; issuing quarterly operational reports at the state and facility levels.
 Piloted the following projects: direct issuance of over-the-counter medications on demand through inmates stores (commissary), obviating the need for a practitioner visit and prescription; computerized practitioner order entry (CPOE); pill splitting; ER telemedicine.
 Oversaw the health services team that participated variously in pre-design, design, or build phases of five capital projects to build complete new health units.

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

2001 – 2002

Regional Medical Director, Northeast Region, 2001 – 2002

Responsible for clinical oversight of medical services for 14,000 offenders in 14 prisons, including one (already) under court monitoring.
 Oversaw contract with vendor to manage 60-bed regional infirmary and hospice.
 Coordinated activities among the Regional Medical Unit outpatient clinic, the Albany Medical College, and the 13 feeder prisons to provide most of the specialty care for the region.
 Worked with contracting specialists and Emergency Departments to improve access and decrease medical out-trips by increasing the proportion of scheduled and emergency services provided by telemedicine.
 Provided training, advice, and counseling to practitioners and facility health administrators in the region to improve the quality of care delivered.

CORRECTIONAL MEDICAL SERVICES, INC. (now CORIZON)

2000 – 2001

Regional Medical Director, New York Region, 2000 – 2001

Responsible for clinical management of managed care contract with New York State Department of Correctional Services to provide utilization management services for the northeast and northern regions of New York State and supervision of the 60-bed regional infirmary and hospice.
 Migrated the utilization approval function from one of an anonymous rule-based “black box” to a collaborative evidence-based decision making process between the vendor and front-line clinicians.

MERCY INTERNAL MEDICINE, ALBANY, NEW YORK Neighborhood three-physician internal medicine group practice. Primary Care Physician, 1999 – 2000 (6 months) Provided direct primary care to a panel of community patients during a period of staff shortage.

1999 – 2000

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ALBANY COUNTY CORRECTIONAL FACILITY, ALBANY, NEW YORK

1998 – 1999

Acting Facility Medical Director, 1998 – 1999

Directed the medical staff of an 800 bed jail and provided direct patient care following the sudden loss of the Medical Director, pending hiring of a permanent replacement. Coordinated care of jail patients in local hospitals. Provided consultation to the Superintendent on improvements to operation and staffing of medical unit and need for privatization.

VETERANS ADMINISTRATION MEDICAL CENTER, ALBANY, NY

1992 – 1998

Assistant Chief, Medical Service, 1995 – 1998 Chief, Section of General Internal Medicine and Emergency Services, 1992 – 1998
Responsible for operation of the general internal medicine clinics and the Emergency Department.
 Designed and implemented an organizational and physical plant makeover of the general medicine ambulatory care clinic from an episodic-care driven model with practitioners functioning independently supported by minimal nursing involvement, to a continuity-of-care model with integrated physician/mid-level practitioner/registered nurse/licensed practice nurse/practice manager teams.
 Led the design and opening of a new Emergency Department.
 As the VA Section Chief of Albany Medical College’s Division of General Internal Medicine, coordinated academic activities of the Division at the VA, including oversight of, and direct teaching in, ambulatory care and inpatient internal medicine rotations for medical students, residents, and fellows. Incorporated medical residents as part of the general internal medicine clinics. Awarded $786,000 Veterans Administration grant (“PRIME I”) over four years for development and operation of educational programs for medicine residents and students in allied health professions (management, pharmacy, social work, physician extenders) wishing to study primary care delivery.

ERIE COUNTY HEALTH DEPARTMENT, BUFFALO, NY

1988 – 1990

Director of Sexually Transmitted Diseases (STD) Services, 1989 – 1990 Staff Physician, STD Clinic, 1988 – 1989 Staff Physician, Lackawanna Community Health Center, 1988 – 1990
Provided leadership and patient care services in the evaluation and treatment of STDs. Successfully reorganized the county’s STD services which were suffering from mismanagement and were under public scrutiny. Provided direct patient care services in primary care clinic for underserved neighborhood.

UNION OCCUPATIONAL HEALTH CENTER, BUFFALO, NY Staff Physician, 1988 – 1990 Provided direct patient care for the evaluation of occupationally-related health disorders.

1988 – 1990

VETERANS ADMINISTRATION MEDICAL CENTER, BUFFALO, NY

1985 – 1990

Chief Outpatient Medical Section and Primary Care Clinic, 1986 – 1988 VA Section Head, Division of General Internal Medicine, University of Buffalo, 1986 – 1988
 Developed and implemented a major restructuring of the general medicine ambulatory care clinic to reduce fragmentation of care by introduction of a continuity-of-care model with a physician/nurse team approach.

Medical Director, Anticoagulation Clinic 1986 – 1990 Staff Physician, Emergency Department, 1985 – 1986

FACULTY APPOINTMENTS

2020 – present 2007 – present
1999 – present
1996 – 2002

Faculty Associate, Center for Human Rights, University of Washington
Affiliate Assistant Professor, Department of Health Services, School of Public Health, University of Washington
Clinical Professor, Fellowship in Applied Public Health (previously Volunteer Faculty, Preventive Medicine Residency), University at Albany School of Public Health
Volunteer Faculty, Office of the Dean of Students, University at Albany

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1992 – 2002 1993 – 1997 1990 – 1992 1985 – 1990 1982 – 1985

Associate Clinical/Associate/Assistant Professor of Medicine, Albany Medical College Clinical Associate Faculty, Graduate Program in Nursing, Sage Graduate School Instructor of Medicine, Indiana University Clinical Assistant Professor of Medicine, University of Buffalo Clinical Assistant Instructor of Medicine, University of Buffalo

2016 – present 2016 – present 2016 – 2017 2013 – present 2013 – 2016
2013 – present 2011 – 2012 2007 – present 2004 – 2006
2004 2003 – present
2001 – present 1999 – present
1999
1997 – 1998 1996 – 2002 1996 – 2002 1995 – 1998 1995
1994 – 1998
1993 1993
1988 – 1989
1987 – 1990 1987 – 1989
1987 – 1988 1987 1986 – 1988 1986 – 1988
1979 – 1980

OTHER PROFESSIONAL ACTIVITIES
Chair, Education Committee, Academic Consortium on Criminal Justice Health Washington State Institutional Review Board (“Prisoner Advocate” member) Mortality Reduction Workgroup, American Jail Association Conference Planning Committee – Medical/Mental Health Track, American Jail Association “Health in Prisons” course, Bloomberg School of Public Health, Johns Hopkins University/International Committee of the Red Cross Institutional Review Board, University of Washington (“Prisoner Advocate” member), Education Committee, National Commission on Correctional Health Care National Advisory Committee, COCHS (Community–Oriented Correctional Health Services) Fellow’s Advisory Committee, University of Washington Robert Wood Johnson Clinical Scholar
Program External Expert Panel to the Surgeon General on the “Call to Action on Correctional Health Care” Faculty Instructor, Critical Appraisal of the Literature Course, Family Practice Residency Program,
Providence St. Peter Hospital, Olympia, Washington Chair/Co-Chair, Education Committee, American College of Correctional Physicians Critical Appraisal of the Literature Course, Preventive Medicine Residency Program, New York State
Department of Health/University at Albany School of Public Health Co–Chairperson, Education Subcommittee, Workshop Submission Review Committee, Annual
Meeting, Society of General Internal Medicine Northeast US Representative, National Association of VA Ambulatory Managers Faculty Mentor, Journal Club, Internal Medicine Residency Program, Albany Medical College Faculty Advisor and Medical Control, 5 Quad Volunteer Ambulance Service, University at Albany Preceptor, MBA Internship, Union College Quality Assurance/Patient Satisfaction Subcommittee, VA National Curriculum Development
Committee for Implementation of Primary Care Practices, Veterans Administration Residency Advisory Committee, Preventive Medicine Residency, New York State Department of
Health/School of Public Health, University at Albany Chairperson, Dean's Task Force on Primary Care, Albany Medical College Task Group to develop curriculum for Comprehensive Care Case Study Course for Years 1 through 4,
Albany Medical College Teaching Effectiveness Program for New Housestaff, Graduate Medical Dental Education Consortium
of Buffalo Human Studies Review Committee, School of Allied Health Professions, University of Buffalo Chairman, Subcommittee on Hospital Management Issues and Member, Subcommittee on
Teaching of Ad Hoc Committee to Plan Incoming Residents Training Week, Graduate Medical Dental Education Consortium of Buffalo Dean's Ad Hoc Committee to Reorganize "Introduction to Clinical Medicine" Course Preceptor, Nurse Practitioner Training Program, School of Nursing, University of Buffalo Course Coordinator, Simulation Models Section of Physical Diagnosis Course, University of Buffalo Chairman, Service Chiefs' Continuity of Care Task Force, Veterans Administration Medical Center, Buffalo, New York Laboratory Teaching Assistant in Gross Anatomy, Université Libre de Bruxelles, Brussels, Belgium

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1973 – 1975 1972 – 1975
1972 – 1975

Instructor and Instructor Trainer of First Aid, American National Red Cross
Chief of Service or Assistant Chief of Operations, 5 Quad Volunteer Ambulance Service, University at Albany.
Emergency Medical Technician Instructor and Course Coordinator, New York State Department of Health, Bureau of Emergency Medical Services

2019 – present 2015 – present 2015 – present
2011 – present 2010 – present 2010 – present 2001 – present 2001 – 2004 1996
1990 – 1992

REVIEWER/EDITOR Criminal Justice Review (reviewer) PLOS ONE (reviewer) Founding Editorial Board Member and Reviewer, Journal for Evidence-based Practice in Correctional Health, Center for Correctional Health Networks, University of Connecticut American Journal of Public Health (reviewer) International Advisory Board Member and Reviewer, International Journal of Prison Health Langeloth Foundation (grant reviewer) Reviewer and Editorial Board Member (2009 – present), Journal of Correctional Health Care Journal of General Internal Medicine (reviewer) Abstract Committee, Health Services Research Subcommittee, Annual Meeting, Society of General Internal Medicine (reviewer) Medical Care (reviewer)

EDUCATION
University at Albany, College of Arts and Sciences, Albany; B.S., 1975 (Biology) University at Albany, School of Education, Albany; AMST (Albany Math and Science Teachers) Teacher Education
Program, 1975 Université Libre de Bruxelles, Faculté de Medecine, Brussels, Belgium; Candidature en Sciences Medicales, 1980 University at Buffalo, School of Medicine, Buffalo; M.D., 1982 University at Buffalo Affiliated Hospitals, Buffalo; Residency in Internal Medicine, 1985 Regenstrief Institute of Indiana University, and Richard L. Roudebush Veterans Administration Medical Center; VA/NIH
Fellowship in Primary Care Medicine and Health Services Research, 1992 Indiana University, School of Health, Physical Education, and Recreation, Bloomington; M.P.H., 1992 New York Academy of Medicine, New York; Mini-fellowship Teaching Evidence-Based Medicine, 1999

CERTIFICATION
Provisional Teaching Certification for Biology, Chemistry, Physics, Grades 7–12, New York State Department of Education (expired), 1975
Diplomate, National Board of Medical Examiners, 1983 Diplomate, American Board of Internal Medicine, 1985 Fellow, American College of Physicians, 1991 License: Washington (#MD00041843, active); New York (#158327, inactive); Indiana (#01038490, inactive) “X” Waiver (buprenorphine), Department of Health & Human Services, 2018

2019 – present 2005 – 2016 2004 – 2006
2000 – present

MEMBERSHIPS Washington Association of Sheriffs and Police Chiefs American Correctional Association/Washington Correctional Association American College of Correctional Physicians (Member, Board of Directors, Chair Education Committee) American College of Correctional Physicians

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RECOGNITION B. Jaye Anno Award for Excellence in Communication, National Commission on Correctional Health Care. 2019 Award of Appreciation, Washington Association of Sheriffs and Police Chiefs. 2018 Armond Start Award of Excellence, American College of Correctional Physicians. 2010 (First) Annual Preventive Medicine Faculty Excellence Award, New York State Preventive Medicine Residency Program, University at Albany School of Public Health/New York State Department of Health. 2010 Excellence in Education Award for excellence in clinical teaching, Family Practice Residency Program, Providence St. Peter Hospital, Olympia, Washington. 2004 Special Recognition for High Quality Workshop Presentation at Annual Meeting, Society of General Internal Medicine. 1996 Letter of Commendation, House Staff Teaching, University of Buffalo. 1986

WORKSHOPS, SEMINARS, PRESENTATIONS, INVITED LECTURES
It’s the 21st Century – Time to Bid Farewell to “Sick Call” and “Chronic Care Clinic”. Annual Conference, National Commission on Correctional Health Care. Fort Lauderdale, Florida. 2019
HIV and Ethics – Navigating Medical Ethical Dilemmas in Corrections. Keynote Speech, 14th Annual HIV Care in the Correctional Setting. AIDS Education and Training Program (AETC) Mountain West, Olympia, Washington. 2019
Honing Nursing Skills to Keep Patients Safe in Jail. Orange County Jail Special Training Session (including San Bernardino and San Diego Jail Staffs), Theo Lacy Jail, Orange, California. 2019
What Would You Do? Navigating Medical Ethical Dilemmas. Leadership Training Academy, National Commission on Correctional Health Care. San Diego, California. 2019
Preventing Jail Deaths. Jail Death Review and Investigations: Best Practices Training Program, American Jail Association, Arlington, Virginia. 2018
How to Investigate Jail Deaths. Jail Death Review and Investigations: Best Practices Training Program, American Jail Association, Arlington, Virginia. 2018
Executive Manager Program in Correctional Health. 4-day training for custody/health care teams from jails and prisons on designing safe and efficient health care systems. National Institute for Corrections Training Facility, Aurora, Colorado, and other venues in Washington State. Periodically. 2014 – present
Medical Ethics in Corrections. Criminal Justice 441 – Professionalism and Ethical Issues in Criminal Justice. University of Washington, Tacoma. Recurring seminar. 2012 – present
Medical Aspects of Deaths in ICE Custody. Briefing for U.S. Senate staffers, Human Rights Watch. Washington, D.C. 2018
Jails’ Role in Managing the Opioid Epidemic. Panelist. Washington Association of Sheriffs and Police Chiefs Annual Conference. Spokane, Washington. 2018
Contract Prisons and Contract Health Care: What Do We Know? Behind Bars: Ethics and Human Rights in U.S. Prisons Conference. Center for Bioethics – Harvard Medical School/Human Rights Program – Harvard Law School. Boston, Massachusetts. 2017
Health Care Workers in Prisons. (With Dr. J. Wesley Boyd) Behind Bars: Ethics and Human Rights in U.S. Prisons Conference. Center for Bioethics – Harvard Medical School/Human Rights Program – Harvard Law School. Boston, Massachusetts. 2017
Prisons, Jails and Medical Ethics: Rubber, Meet Road. Grand Rounds. Touro Medical College. New York, New York. 2017
Jail Medical Doesn’t Have to Keep You Up at Night – National Standards, Risks, and Remedies. Washington Association of Counties. SeaTac, Washington. 2017
Prison and Jail Health Care: What do you need to know? Grand Rounds. Providence/St. Peters Medical Center. Olympia, Washington. 2017
Prison Health Leadership Conference. 2-Day workshop. International Corrections and Prisons Association/African Correctional Services Association/Namibian Corrections Service. Omaruru, Namibia. 2016; 2018

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What Would YOU Do? Navigating Medical Ethical Dilemmas. Spring Conference. National Commission on Correctional Health Care. Nashville, Tennessee. 2016
Improving Patient Safety. Spring Provider Meeting. Oregon Department of Corrections. Salem, Oregon 2016
A View from the Inside: The Challenges and Opportunities Conducting Cardiovascular Research in Jails and Prisons. Workshop on Cardiovascular Diseases in the Inmate and Released Prison Population. The National Heart, Lung, and Blood Institute. Bethesda, Maryland. 2016
Why it Matters: Advocacy and Policies to Support Health Communities after Incarceration. At the Nexus of Correctional Health and Public Health: Policies and Practice session. Panelist. American Public Health Association Annual Meeting. Chicago, Illinois. 2015
Hot Topics in Correctional Health Care. Presented with Dr. Donald Kern. American Jail Association Annual Meeting. Charlotte, North Carolina. 2015
Turning Sick Call Upside Down. Annual Conference. National Commission on Correctional Health Care. Dallas, Texas, 2015.
Diagnostic Maneuvers You May Have Missed in Nursing School. Annual Conference. National Commission on Correctional Health Care. Dallas, Texas. 2015
The Challenges of Hunger Strikes: What Should We Do? What Shouldn’t We Do? Annual Conference. National Commission on Correctional Health Care. Dallas, Texas. 2015
Practical and Ethical Approaches to Managing Hunger Strikes. Annual Practitioners’ Conference. Washington Department of Corrections. Tacoma, Washington. 2015
Contracting for Health Services: Should I, and if so, how? American Jail Association Annual Meeting. Dallas, Texas. 2014
Hunger Strikes: What should the Society of Correctional Physician’s position be? With Allen S, May J, Ritter S. American College of Correctional Physicians (Formerly Society of Correctional Physicians) Annual Meeting. Nashville, Tennessee. 2013
Addressing Conflict between Medical and Security: an Ethics Perspective. International Corrections and Prison Association Annual Meeting. Colorado Springs, Colorado. 2013
Patient Safety and ‘Right Using’ Nurses. Keynote address. Annual Conference. American Correctional Health Services Association. Philadelphia, Pennsylvania. 2013
Patient Safety: Overuse, underuse, and misuse…of nurses. Keynote address. Essentials of Correctional Health Care conference. Salt Lake City, Utah. 2012
The ethics of providing healthcare to prisoners-An International Perspective. Global Health Seminar Series. Department of Global Health, University of Washington, Seattle, Washington. 2012
Recovery, Not Recidivism: Strategies for Helping People Who are Incarcerated. Panelist. NAMI Annual Meeting, Seattle, Washington, 2012
Ethics and HIV Workshop. HIV/AIDS Care in the Correctional Setting Conference, Northwest AIDS Education and Training Center. Salem, Oregon. 2011
Ethics and HIV Workshop. HIV/AIDS Care in the Correctional Setting Conference, Northwest AIDS Education and Training Center. Spokane, Washington. 2011
Patient Safety: Raising the Bar in Correctional Health Care. With Dr. Sharen Barboza. National Commission on Correctional Health Care Mid-Year Meeting, Nashville, Tennessee. 2010
Patient Safety: Raising the Bar in Correctional Health Care. American Correctional Health Services Association, Annual Meeting, Portland, Oregon. 2010
Achieving Quality Care in a Tough Economy. National Commission on Correctional Health Care Mid-Year Meeting, Nashville, Tennessee, 2010 (Co-presented with Rick Morse and Helena Kim, PharmD.)
Involuntary Psychotropic Administration: The Harper Solution. With Dr. Bruce Gage. American Correctional Health Services Association, Annual Meeting, Portland, Oregon. 2010
Evidence Based Decision Making for Non-Clinical Correctional Administrators. American Correctional Association 139th Congress, Nashville, Tennessee. 2009
Death Penalty Debate. Panelist. Seattle University School of Law, Seattle, Washington. 2009

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The Patient Handoff – From Custody to the Community. Washington Free Clinic Association, Annual Meeting, Olympia, Washington. Lacey, Washington. 2009
Balancing Patient Advocacy with Fiscal Restraint and Patient Litigation. National Commission on Correctional Health Care and American College of Correctional Physicians “Medical Directors Boot Camp,” Seattle, Washington. 2009
Staff Management. National Commission on Correctional Health Care and American College of Correctional Physicians “Medical Directors Boot Camp,” Seattle, Washington. 2009
Management Dilemmas in Corrections: Boots and Bottom Bunks. Annual Meeting, American College of Correctional Physicians, Chicago, Illinois. 2008
Public Health and Correctional Health Care. Masters Program in community–based population focused management – Populations at risk, Washington State University, Spokane, Washington. 2008
Managing the Geriatric Population. Panelist. State Medical Directors’ Meeting, American Corrections Association, Alexandria, Virginia. 2007
I Want to do my own Skin Biopsies. Annual Meeting, American College of Correctional Physicians, New Orleans, Louisiana. 2005
Corrections Quick Topics. Annual Meeting, American College of Correctional Physicians. Austin, Texas. 2003
Evidence Based Medicine in Correctional Health Care. Annual Meeting, National Commission on Correctional Health Care. Austin, Texas. 2003
Evidence Based Medicine. Excellence at Work Conference, Empire State Advantage. Albany, New York. 2002
Evidence Based Medicine, Outcomes Research, and Health Care Organizations. National Clinical Advisory Group, Integrail, Inc., Albany, New York. 2002
Evidence Based Medicine. With Dr. LK Hohmann. The Empire State Advantage, Annual Excellence at Work Conference: Leading and Managing for Organizational Excellence, Albany, New York. 2002
Taking the Mystery out of Evidence Based Medicine: Providing Useful Answers for Clinicians and Patients. Breakfast Series, Institute for the Advancement of Health Care Management, School of Business, University at Albany, Albany, New York. 2001
Diagnosis and Management of Male Erectile Dysfunction – A Goal–Oriented Approach. Society of General Internal Medicine National Meeting, San Francisco, California. 1999
Study Design and Critical Appraisal of the Literature. Graduate Medical Education Lecture Series for all housestaff, Albany Medical College, Albany, New York. 1999
Male Impotence: Its Diagnosis and Treatment in the Era of Sildenafil. 4th Annual CME Day, Alumni Association of the Albany–Hudson Valley Physician Assistant Program, Albany, New York. 1998
Models For Measuring Physician Productivity. Panelist. National Association of VA Ambulatory Managers National Meeting, Memphis, Tennessee. 1997
Introduction to Male Erectile Dysfunction and the Role of Sildenafil in Treatment. Northeast Regional Meeting Pfizer Sales Representatives, Manchester Center, Vermont. 1997
Male Erectile Dysfunction. Topics in Urology, A Seminar for Primary Healthcare Providers, Bassett Healthcare, Cooperstown, New York. 1997
Evaluation and Treatment of the Patient with Impotence: A Practical Primer for General Internists. Society of General Internal Medicine National Meeting, Washington D.C. 1996
Impotence: An Update. Department of Medicine Grand Rounds, Albany Medical College, Albany, New York. 1996
Diabetes for the EMT First–Responder. Five Quad Volunteer Ambulance, University at Albany. Albany, New York. 1996
Impotence: An Approach for Internists. Medicine Grand Rounds, St. Mary's Hospital, Rochester, New York. 1994
Male Impotence. Common Problems in Primary Care Precourse. American College of Physicians National Meeting, Miami, Florida. 1994
Patient Motivation: A Key to Success. Tuberculosis and HIV: A Time for Teamwork. AIDS Program, Bureau of Tuberculosis Control – New York State Department of Health and Albany Medical College, Albany, New York. 1994

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Recognizing and Treating Impotence. Department of Medicine Grand Rounds, Albany Medical College, Albany, New York. 1992
Medical Decision Making: A Primer on Decision Analysis. Faculty Research Seminar, Department of Family Practice, Indiana University, Indianapolis, Indiana. 1992
Effective Presentation of Public Health Data. Bureau of Communicable Diseases, Indiana State Board of Health, Indianapolis, Indiana. 1991
Impotence: An Approach for Internists. Housestaff Conference, Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Using Electronic Databases to Search the Medical Literature. NIH/VA Fellows Program, Indiana University, Indianapolis, Indiana. 1991
Study Designs Used in Epidemiology. Ambulatory Care Block Rotation. Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Effective Use of Slides in a Short Scientific Presentation. Housestaff Conference, Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Impotence: A Rational and Practical Approach to Diagnosis and Treatment for the General Internist. Society of General Internal Medicine National Meeting, Washington D.C. 1991
Nirvana and Audio–Visual Aids. With Dr. RM Lubitz. Society of General Internal Medicine, Midwest Regional Meeting, Chicago. 1991
New Perspectives in the Management of Hypercholesterolemia. Medical Staff, West Seneca Developmental Center, West Seneca, New York. 1989
Effective Use of Audio–Visual Aids. Nurse Educators, American Diabetes Association, Western New York Chapter, Buffalo, New York. 1989
Management of Diabetics in the Custodial Care Setting. Medical Staff, West Seneca Developmental Center, West Seneca, New York, 1989
Effective Use of Audio–Visuals in Diabetes Peer and Patient Education. American Association of Diabetic Educators, Western New York Chapter, Buffalo, New York. 1989
Pathophysiology, Diagnosis and Care of Diabetes. Nurse Practitioner Training Program, School of Nursing, University of Buffalo, Buffalo, New York. 1989
Techniques of Large Group Presentations to Medical Audiences – Use of Audio–Visuals. New Housestaff Training Program, Graduate Medical Dental Education Consortium of Buffalo, Buffalo, New York. 1988

PUBLICATIONS/ABSTRACTS
Borschmann, R, Tibble, H, Spittal, MJ, … Stern, MF, Viner, KM, Wang, N, Willoughby, M, Zhao, B, and Kinner, SA. The Mortality After Release from Incarceration Consortium (MARIC): Protocolfor a multi-national, individual participant data meta-analysis. Int. J of Population Data Science 2019 5(1):6
Binswanger IA, Maruschak LM, Mueller SR, Stern MF, Kinner SA. Principles to Guide National Data Collection on the Health of Persons in the Criminal Justice System. Public Health Reports 2019 134(1):34S-45S
Stern M. Hunger Strike: The Inside Medicine Scoop. American Jails 2018 32(4):17-21
Grande L, Stern M. Providing Medication to Treat Opioid Use Disorder in Washington State Jails. Study conducted for Washington State Department of Social and Health Services under Contract 1731-18409. 2018.
Stern MF, Newlin N. Epicenter of the Epidemic: Opioids and Jails. American Jails 2018 32(2):16-18
Stern MF. A nurse is a nurse is a nurse…NOT! Guest Editorial, American Jails 2018 32(2):4,68
Wang EA, Redmond N, Dennison Himmelfarb CR, Pettit B, Stern M, Chen J, Shero S, Iturriaga E, Sorlie P, Diez Roux AV. Cardiovascular Disease in Incarcerated Populations. Journal of the American College of Cardiology 2017 69(24):2967-76
Mitchell A, Reichberg T, Randall J, Aziz-Bose R, Ferguson W, Stern M. Criminal Justice Health Digital Curriculum. Poster, Annual Academic and Health Policy Conference on Correctional Health, Atlanta, Georgia, March, 2017

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Stern MF. Patient Safety (White Paper). Guidelines, Management Tools, White Papers, National Commission on Correctional Health Care. http://www.ncchc.org/filebin/Resources/Patient-Safety-2016.pdf. June, 2016
Binswanger IA, Stern MF, Yamashita TE, Mueller SR, Baggett TP, Blatchford PJ. Clinical risk factors for death after release from prison in Washington State: a nested case control study. Addiction 2015 Oct 17
Stern MF. Op-Ed on Lethal Injections. The Guardian 2014 Aug 6
Stern MF. American College of Correctional Physicians Calls for Caution Placing Mentally Ill in Segregation: An Important Band-Aid. Guest Editorial. Journal of Correctional Health Care 2014 Apr; 20(2):92-94
Binswanger I, Blatchford PJ, Mueller SR, Stern MF. Mortality After Prison Release: Opioid Overdose and Other Causes of Death, Risk Factors, and Time Trends From 1999 to 2009. Annals of Internal Medicine 2013 Nov; 159(9):592-600
Williams B, Stern MF, Mellow J, Safer M, Greifinger RB. Aging in Correctional Custody: Setting a policy agenda for older prisoner health care. American Journal of Public Health 2012 Aug; 102(8):1475-1481
Binswanger I, Blatchford PJ, Yamashita TE, Stern MF. Drug-Related Risk Factors for Death after Release from Prison: A Nested Case Control Study. Oral Presentation, University of Massachusetts 4th Annual Academic and Health Policy Conference on Correctional Healthcare, Boston, Massachusetts, March, 2011
Binswanger I, Blatchford PJ, Forsyth S, Stern MF, Kinner SA. Death Related to Infectious Disease in Ex-Prisoners: An International Comparative Study. Oral Presentation, University of Massachusetts 4th Annual Academic and Health Policy Conference on Correctional Healthcare, Boston, Massachusetts, March, 2011
Binswanger I, Lindsay R, Stern MF, Blatchford P. Risk Factors for All-Cause, Overdose and Early Deaths after Release from Prison in Washington State Drug and Alcohol Dependence. Drug and Alcohol Dependence Aug 1 2011;117(1):1-6
Stern MF, Greifinger RB, Mellow J. Patient Safety: Moving the Bar in Prison Health Care Standards. American Journal of Public Health November 2010;100(11):2103-2110
Strick LB, Saucerman G, Schlatter C, Newsom L, Stern MF. Implementation of Opt-Out HIV testing in the Washington State Department of Corrections. Poster Presentation, National Commission on Correctional Health Care Annual Meeting, Orlando, Florida, October, 2009
Binswanger IA, Blatchford P, Stern MF. Risk Factors for Death After Release from Prison. Society for General Internal Medicine 32nd Annual Meeting; Miami: Journal of General Internal Medicine; April 2009. p. S164-S95
Stern MF. Force Feeding for Hunger Strikes – One More Step. CorrDocs Winter 2009;12(1):2
Binswanger I, Stern MF, Deyo RA, Heagerty PJ, Cheadle A, Elmore JG, Koepsell TD. Release from Prison – A High Risk of Death for Former Inmates. New England Journal of Medicine 2007 Jan 11;356(2):157–165
Stern MF, Hilliard T, Kelm C, Anderson E. Epidemiology of Hepatitis C Infection in the Washington State Department of Corrections. Poster Presentation, CDC/NIH ad hoc Conference on Management of Hepatitis C in Prisons, San Antonio, Texas, January, 2003
Phelps KR, Stern M, Slingerland A, Heravi M, Strogatz DS, Haqqie SS. Metabolic and skeletal effects of low and high doses of calcium acetate in patients with preterminal chronic renal failure. Am J Nephrol 2002 Sep–Dec;22(5–6):445–54
Goldberg L, Stern MF, Posner DS. Comparative Epidemiology of Erectile Dysfunction in Gay Men. Oral Presentation, International Society for Impotence Research Meeting, Amsterdam, The Netherlands, August 1998. Int J Impot Res. 1998;10(S3):S41 [also presented as oral abstract Annual Meeting, Society for the Study of Impotence, Boston, Massachusetts, October, 1999. Int J Impot Res. 1999;10(S1):S65]
Stern MF. Erectile Dysfunction in Older Men. Topics in Geriatric Rehab 12(4):40–52, 1997. [republished in Geriatric Patient Education Resource Manual, Supplement. Aspen Reference Group, Eds. Aspen Publishers, Inc., 1998]
Stern MF, Wulfert E, Barada J, Mulchahy JJ, Korenman SG. An Outcomes–Oriented Approach to the Primary Care Evaluation and Management of Erectile Dysfunction. J Clin Outcomes Management 5(2):36–56, 1998
Fihn SD, Callahan CM, Martin D, et al.; for the National Consortium of Anticoagulation Clinics.* The Risk for and Severity of Bleeding Complications in Elderly Patients Treated with Warfarin. Ann Int Med. 1996;124:970–979
Fihn SD, McDonell M, Martin D, et al.; for the Warfarin Optimized Outpatient Follow–up Study Group.* Risk Factors for Complications of Chronic Anticoagulation. Ann Int Med. 1993;118:511–520. (*While involved in the original proposal development and project execution, I was no longer part of the group at the time of this publication)
Stern MF, Dittus RS, Birkhead G, Huber R, Schwartz J, Morse D. Cost–Effectiveness of Hepatitis B Immunization Strategies for High Risk People. Oral Presentation, Society of General Internal Medicine National Meeting, Washington, D.C., May 1992. Clin Res 1992

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Marc F. Stern, M.D.

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Fihn SD, McDonell MB, Vermes D, Martin D, Kent DL, Henikoff JG, and the Warfarin Outpatient Follow–up Study Group. Optimal Scheduling of Patients Taking Warfarin. A Multicenter Randomized Trial. Oral Presentation, Society of General Internal Medicine National Meeting, Washington, D.C., May 1992. Clin Res 1992
Fihn SD, McDonnell MB, Vermes D, Kent DL, Henikoff JG, and the Warfarin Anticoagulation Study Group. Risk Factors for Complications During Chronic Anticoagulation. Poster Presentation, Society of General Internal Medicine National Meeting, Seattle, May 1991
Pristach CA, Donoghue GD, Sarkin R, Wargula C, Doerr R, Opila D, Stern M, Single G. A Multidisciplinary Program to Improve the Teaching Skills of Incoming Housestaff. Acad Med. 1991;66(3):172–174
Stern MF. Diagnosing Chlamydia trachomatis and Neisseria gonorrhea Infections. (letter) J Gen Intern Med. 1991;6:183
Stern MF, Fitzgerald JF, Dittus RS, Tierney WM, Overhage JM. Office Visits and Outcomes of Care: Does Frequency Matter? Poster Presentation, Society of General Internal Medicine Annual Meeting, Seattle, May 1991. Clin Res 1991;39:610A
Stern MF. Cobalamin Deficiency and Red Blood Cell Volume Distribution Width. (letter) Arch Intern Med. 1990;150:910
Stern M, Steinbach B. Hypodermic Needle Embolization to the Heart. NY State J Med. 1990;90(7):368–371
Stern MF, Birkhead G, Huber R, Schwartz J, Morse D. Feasibility of Hepatitis B Immunization in an STD Clinic. Oral Presentation, American Public Health Association Annual Meeting, Atlanta, November 1990

EXPERT TESTIMONY Pajas v. County of Monterey, et al. US District Court for the Northern District of California, 2019 (trial) Dockery, et al. v. Hall et al. US District Court for the Southern District of Mississippi Northern Division, 2018 (trial) Benton v. Correct Care Solutions, et al. US District Court for the District of Maryland, 2018 (deposition) Pajas v. County of Monterey, et al. US District Court Northern District of California, 2018 (deposition) Walter v. Correctional Healthcare Companies, et al. US District Court, District of Colorado, 2017 (deposition) Winkler v. Madison County, Kentucky, et al. US District Court, Eastern District of Kentucky, Central Division at Lexington, 2016 (deposition) US v. Miami-Dade County, et al. US District Court, Southern District of Florida, periodically 2014 - 2016

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EXHIBIT 9

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DECLARATION OF PROFESSOR JUDITH RESNIK REGARDING ENLARGEMENT AND THE USE OF PROVISIONAL REMEDIES
FOR DETAINED INDIVIDUALS
I have been asked to make this declaration to explain my understanding of the remedies, both provisional and permanent, that federal judges can provide to people who are incarcerated and facing the threat of COVID-19. Because I have practiced in the federal courts for decades and represented prisoners in federal court, I have had personal experience with the use of enlargement in habeas corpus cases. Given that this provisional remedy is not regularly discussed in reported decisions or in academic analyses, I believe that my experiences and knowledge can be useful to the Court. This opinion is mine and is not that of the institutions with which I am affiliated. I declare that the following is a true and accurate account of my own work as a lawyer, of the pertinent legal principles as I understand them, and of how these precepts can apply in this unprecedented context.
My Background
1. I have worked on occasion as a lawyer, including in the clinical programs at Yale Law School and at the University of Southern California Law Center (USC), where I taught for more than a decade before returning to Yale Law School. I have appeared before the United States Supreme Court and in federal district and appellate courts. I have also been appointed by federal judges to assist in issues arising in large-scale litigation. Below, I provide a few aspects of my work particularly relevant to this declaration. I attach my resume as Exhibit A to this Declaration.
2. From 1977 until 1980, I was a supervising attorney at Yale Law School’s clinical program, which then provided legal services to federal prisoners housed at F.C.I. Danbury. From 1980 to 1996, I taught at USC in both traditional classroom and clinical settings.
3. I am now the Arthur Liman Professor of Law at Yale Law School where I teach courses, including on federal and state
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courts; procedure; large-scale litigation; federalism; and incarceration.

4. I have taught law for decades. Much of my focus has been on the role and function of courts, and the relationship of governments to their populations. I regularly teach the class entitled Federal and State Courts in the Federal System. Readings for students include materials on habeas corpus and on civil rights litigation.

5. In 2018, I was awarded an Andrew Carnegie Fellowship to work on a book, tentatively entitled Impermissible Punishments, which explores the impact of the 1960s civil rights revolution on the kinds of punishments that governments can impose on people convicted of crimes. Central to this book is the role that access to courts played for people held in detention.

6. I am the Founding Director of the Arthur Liman Center for Public Interest Law. The Liman Center teaches classes yearly, convenes colloquia, does research projects, supports graduates of Yale Law School to work for one year in public interest organizations, and is an umbrella for undergraduate fellowships at eight institutions of higher education.

7. I write about the federal courts; adjudication and alternatives such as arbitration; habeas corpus and incarceration; class actions and multi-district litigation; the judicial role and courts’ remedies; gender and equality; and about transnational aspects of these issues. In recent years, I have spent a good deal of time doing research related to prisons. I have helped to develop a series of reports that provide information nation-wide on the use of solitary confinement.

8. In February of 2019, I testified before the U.S.

Commission on Civil Rights at its hearing on women in prison and

co-authored a statement related to the isolation of many facilities

for women, their needs for education and work training, and the

discipline to which they are subjected. See Statement submitted

for the record, Women in Prison: Seeking Justice Behind Bars,

before the U.S. Commission on Civil Rights, March 22, 2019. The

report, published a few months ago, references this testimony. See

U.S. Commission on Civil Rights, Women in Prison: Seeking Justice

Behind

Bars

(February

2020),

available

at

https://www.usccr.gov/pubs/2020/02-26-Women-in-Prison.pdf.

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Remedies Available in the Federal Courts: Habeas Corpus, Civil Rights Litigation, and Enlargement
9. In light of my knowledge of the federal law of habeas corpus, state and federal court relations, procedure, and remedies, I have been asked by counsel for the petitioners/plaintiffs to address the range of responses available to judges presiding in cases that raise claims related to COVID19. I have submitted a declaration akin to this one in a few other cases.
10. As I understand from public materials on the health risks of this disease, COVID-19 poses a deadly threat to the well-being and lives of people who contract this disease. To reduce the risk and spread of this disease, our governments have instructed us to stay distant from others and to take measures that are extraordinary departures from our daily lives and routines.
11. Applying these urgent medical directives to prisons poses challenges in every jurisdiction. Governing legal principles about prisoners’ access to courts were not framed to address COVID19’s reality: that being inside prisons that are densely populated can put large numbers of people (prisoners and staff) at risk of immediate serious illness and potential death.
12. These unprecedented risks from and harms of COVID-19 in prison raise a new legal question: whether COVID-19 has turned sentences which, when imposed, were (or may have been) constitutional into unconstitutional sentences during the pendency of this crisis.
13. When sentencing people to a term of years of incarceration, judges had no authority to impose putting a person at grave risk of serious illness and death as part of the punishment for the offense. Now, such grave risks and harms can arise from the fact of incarceration.
14. A recent Supreme Court case, Montgomery v. Louisiana, 136 S.Ct. 718 (2016), provides an analogous situation of sentence that was constitutional at sentencing but unconstitutional now. The Court determined that, in light of new understandings of the limits of brain development in juveniles, sentences of life without parole (LWOP) imposed on individuals who had committed crimes when under the age of eighteen were lawful when issued but became unconstitutional. As a consequence, parole boards or courts had to reconsider whether LWOP remained appropriate. COVID-19 raises a parallel question, as it requires courts to address whether
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sentences lawful at imposition can (at least temporarily) no longer be served in prisons because otherwise, the sentence would become an unconstitutional form of punishment. In these abnormal times, the speed at which decisions are made is critical. Therefore, as I discuss below, provisional remedies (enabling enlargement and release for some individuals and de-densifying for others) are necessary.
15. The classic and longstanding remedy for relief from unconstitutional detention, conviction, and sentences is habeas corpus. The Constitution enshrined the remedy of habeas corpus, which has a substantial common law history and is codified in federal statutes. See generally Paul D. Halliday, Habeas Corpus (Harvard U. Press, 2012); Amanda L. Tyler, Habeas Corpus in Wartime (Oxford U. Press, 2017); Randy Hertz and James Liebman, Federal Habeas Corpus Practice and Procedure (2 volumes, 2019); Hart & Wechsler, The Federal Courts and the Federal System, Chapter X1, 1193-1164 (Richard H. Fallon, Jr, John F. Manning, Daniel J. Meltzer & David Shapiro, 7th ed., 2015). These citations are the tip of a vast and substantial literature that aims to understand the history and law of habeas corpus.
The Legal Thicket
16. As is familiar, in federal courts, federal petitioners file under 28 U.S.C. §2255 (post-conviction motions) and under §2241 (the general habeas statute), both of which are civil actions.
17. For example, when I worked at Yale Law School in its clinical program in the late 1970s, we filed lawsuits for federal prisoners predicated on 28 U.S.C. §2241 as well as (in appropriate situations) on 28 U.S.C. §1331 (general question jurisdiction) and 28 U.S.C. §1361 (mandamus), and in several instances, we filed cases as class actions. In the mid-1970s, the Supreme Court provided rules and forms for §2254 and §2255 filings. The Federal Rules of Civil Procedure supplement those rules, as recognized in F.R.Civ.Pro. 81(a)(4).
18. Congress has recognized that federal judges are authorized under the habeas statutes to “summarily hear and determine the facts, and dispose of the matter as law and justice require.” See 28 U.S.C. §2243. In addition to this statutory authority, federal judicial power is predicated on the constitutional protection of the writ and on the common law.
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19. Congress has channeled and circumscribed some of federal judicial authority through the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and, relatedly, under the Prison Litigation Reform Act (PLRA) of 1996.
20. Moreover, the Supreme Court has issued many decisions interpreting the prior habeas statutes, the 1996 revisions in AEDPA, and the intersection of habeas and civil rights claims brought under 42 U.S.C. §1983. The result is a dense arena of law and doctrine that can be daunting for litigants and jurists alike.
21. Some Supreme Court decisions, written to address claims by state prisoners, have delineated litigation focused on the fact or duration of confinement, for which release is the remedy and habeas is the preferred route, from challenges to conditions of confinement, for which the Court has required use of 42 U.S.C. §1983. See, e.g., Preiser v. Rodriguez, 411 U.S. 475 (1978); Heck v. Humphrey, 512 U.S. 477 (1994). Yet that distinction is hard to apply, and many opinions have identified that the overlap, as exemplified by Mohammad v. Close, 540 U.S. 744 (2004), Wilkinson v. Dotson, 544 U.S. 74 (2005), and by other Supreme Court and lower court decisions.
22. COVID-19 poses a new and painful context in which to undertake that analysis. Some reported decisions addressing the constitutional right of prisoners that officials not be “deliberately indifferent to serious medical needs” consider those Eighth Amendment claims to be appropriate for §1983 because they relate to conditions. But this deadly disease turns ordinary conditions into potentially lethal threats of illness for which the remedy to consider is release of at least some prisoners because density puts people at medical risk.
23. Because COVID-19 can end people’s lives unexpectedly and abruptly, COVID-19 claims turn the condition of being incarcerated into a practice that affects the fact or duration of confinement. In my view, COVID-19 claims, therefore, collapse the utility and purpose of drawing distinctions between what once could more coherently be distinguished.
24. Courts need also to consider how COVID-19 fits (or not) with provisions of AEDPA and the parameters of the PLRA. Again, new problems have emerged. For example, in some contexts for state and federal prisoners, a question of exhaustion of remedies arises. Often one issue is the ability of the executive branch to respond
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quickly. In the COVID context, day by day, the risk of illness increases for prisoners and staff, which endanger health care resources. Exhaustion would be “futile” if other branches of government are not prompt in response and if people become sick, risks skyrocket, and deaths occur.
25. “Futility” thus needs to be analyzed in terms not only of the capacity of institutions but in terms of the likelihood that the people seeking relief will be well enough to have the capacity to do so, and that the remedy provided will be effective given the alleged harm.
26. Other legal issues include when class actions or other forms of multi-party treatment are appropriate and if so, whether the criteria such as those of Rule 23 are met; the merits of arguments about unconstitutional sentences and conditions; and the range of remedies. Furthermore, circuit case law varies somewhat on the use and application of the Federal Rules of Civil Procedure in habeas filings and on the scope and the interpretation of 28 U.S.C. §2241.
The Availability of Provisional Remedies
27. The reason to flag some of the many issues that litigation of both habeas petitions and civil rights cases entail is to underscore the importance of considering provisional remedies when cases are pending. In general, time is required for lawyers to brief and for judges to interpret and apply the law. But waiting days in a world of COVID infections can result in the loss of life.
28. While courts have not faced COVID before, they have faced urgent situations, which is why provisional legal remedies exist. Courts have two ways to preserve the status quo – which here means protecting to the extent possible the health of prisoners, staff, and providers of medical services. One route is the use of temporary restraining orders and preliminary injunctions. These remedies require no explanation because they are familiar procedures. See Fed. R. Civ. Pro. 65.
29. Another option is an aspect of federal judicial power that is less well known. District courts have authority when habeas petitions are pending to “enlarge” the custody of petitioners. “Enlargement” is a term that, as far as I am aware, is used only in the context of habeas. (More familiar terms for individuals permitted to leave detention are “release” and “bail,” and some
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decision that “enlarge” petitioners use those words rather than enlargement).
30. The distinction is that enlargement is not release. The person remains in custody - even as the place of custody is changed and thus “enlarged” from a particular prison to a hospital, halfway house, a person’s home, or other setting. Enlargement is a provisional remedy that modifies custody by expanding the site in which it takes place.
31. Enlargement has special relevance when the PLRA has application. As I understand the PLRA’s rules on the “release” of prisoners, enlargement would not apply, as enlargement is not a release order. And, of course, interpreting the many directives of the PLRA in light of COVID entails more elaboration that my comments here.
32. The need to work through that statute and case law is another reason why the availability of provisional remedies is so important. Enlargement provides an opportunity for increasing the safety of prisoners, staff, and their communities while judges consider a myriad of complex legal questions.
33. I first encountered the provisional remedy of enlargement in the 1970s, when I represented a prisoner – Robert Drayton – who was confined at F.C.I. Danbury and who filed a habeas petition alleging that the U.S. Parole Commission had unconstitutionally rescinded his parole.
34. The Honorable T.F. Gilroy Daly, a federal judge sitting in the District of Connecticut, granted Mr. Drayton’s request for enlargement while the decision on the merits was pending. Mr. Drayton returned to his home in Philadelphia and came back to Connecticut for the merits hearing. Judge Daly thereafter ruled in his favor; that decision was upheld in part and reversed in part. See Drayton v. U.S. Parole Commission, 445 F. Supp. 305 (D. Conn. 1978), affirmed in part, Drayton v. McCall, 584 F.2d 1208 (2d Cir. 1978).
35. Judge Daly did not write a decision explaining the enlargement. Given that I knew that the use of enlargement was not always recorded in published decisions and that enlargement had special relevance here, I decided I should learn more about other courts’ discussion of this provisional remedy.
36. The provisional district court remedy of enlargement is not mentioned directly in in federal rules governing the lower
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federal courts. In contrast, at the appellate level, Federal Rule of Appellate Procedure (FRAP) 23 provides in part that:
While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner be: (1) detained in the custody from which release is sought; (2) detained in other appropriate custody; or (3) released on personal recognizance, with or without surety. While a decision ordering the release of a prisoner is under review, the prisoner must – unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise – be released on personal recognizance, with or without surety.
As that excerpt reflects, the Rule uses language familiar in the context of bail and provides that appellate courts may also determine that a petitioner be detained in “other appropriate custody.”
37. Federal courts at all level are authorized by Congress to decide habeas cases “as law and justice requires.” 28 U.S.C. §2243. The case law also references that, at the district court level, the authority to release a habeas petitioner pending a ruling on the merits stems from courts’ inherent powers. See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). And, as I noted, in these reported decisions, the terms “bail” or “release” are sometimes used instead of or in addition to “enlargement.”
38. In the last weeks, the saliency of enlargement has prompted me to review more of the law surrounding it. To gather materials and opinions on enlargement, I asked two law students, Kelsey Stimson of Yale Law School and Ally Daniels of Stanford Law School, to help me research what judges have said about enlargement and what others have written. Below I detail some of the governing case law. The Hertz & Liebman Treatise on Habeas also has a section (§14.2) devoted to this issue.
39. Some of the decisions involve requests for release when habeas petitions were pending from state prisoners, and others from federal prisoners, or from people in immigration detention. Further, several appellate cases address the issue of whether a district court order on enlargement was appealable as of right or subject to mandamus.
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40. My central point is that, amidst these various debates about appealability and the test for enlargement/release, most circuits have recognized that district courts have the authority to order release pending final disposition of a habeas petition. See e.g., Woodcock v. Donnelly, 470 F.2d 93, 43 (1st Cir. 1972); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974); Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990); Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985); Martin v. Solem, 801 F.2d 324, 329 (8th Cir. 1986); Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981): Baker v. Sard, 420 F.2d 1342, 1342-44 (D.C. Cir. 1969).
41. The Fourth and Eleventh Circuits appear, albeit less directly, to recognize enlargement authority. See Gomez v. United States, 899 F.2d 1124, 1125 (11th Cir. 1990); United States v. Perkins, 53 F. App’x 667, 669 (4th Cir. 2002). A Ninth Circuit opinion from 1989 likewise appears to recognize the power of district courts to grant release pending a habeas decision where there are “special circumstances or a high probability of success.” See Land v. Deeds, 878 F.2d 318 (9th Cir. 1989). Thereafter, another decision, In re Roe, described the Circuit as not having ruled on the issue in terms of state prisoners. See 257 F.3d 1077 (9th Cir. 2001).1
42. A discrete question is the standard for enlarging petitioners. To obtain an order for release pending the merits of habeas decision, the petitioner must demonstrate “extraordinary circumstances” and that the underlying claim raises “substantial claims.” See e.g. Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). Courts have also discussed that release is appropriate when “necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 226; see also Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992). As that Third Circuit decision explained, release was “available ‘only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances
1 Subsequent lower court cases debated whether district courts do possess such authority. See, e.g., Hall v. San Francisco Sup. Ct., 2010 WL 890044, at *2 (N.D. Cal. Mar. 8, 2010) (“Based on the overwhelming authority [of other circuit courts] in support, the court concludes for purposes of the instant motion that it has the authority to release Hall pending a decision on the merits.”); United States v. Carreira, 2016 U.S. Dist. LEXIS 31210, at *4, (D. Haw. Mar. 10, 2016) (“[T]his Court declines to address the merits of Petitioner’s bail requests in the absence of definitive guidance from the Ninth Circuit regarding the scope of this Court’s bail authority.”).
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exist which make the grant of bail necessary to make the habeas remedy effective.’”
43. Some judges have interpreted the “substantial questions” prong to require the underlying claim to have a “high probability of success.” See Hall v. San Francisco Superior Court, No. C 095299 PJH, 2010 WL 890044, *1 (N.D. Cal. Mar. 8, 2010); In re Souels, 688 F. App'x 134, 135 (3d Cir. 2017). That test resembles standards for preliminary injunctive relief and for stays, which include an assessment of the likelihood of success on the merits and of whether the balance of hardships tips in favor of altering the status quo. (And, of course, more can be said about the nuances of these bodies of law as well.)
44. A few cases focus on the health of a petitioner as central to the conclusion that “extraordinary circumstances” exist. For example, in Johnston v. Marsh, the petitioner, Alfred Ackerman, brought a habeas claim alleging that he was convicted in Pennsylvania through a trial that lacked “due process.” 227 F.2d 528 (3d Cir. 1955). Ackerman asked for release pending a decision on the merits of his habeas petition; he argued that he had advanced diabetes and was “rapidly progressing towards total blindness.” Id. at 529. The district court authorized Ackerman to be released to a private hospital. The prison warden (Frank Johnston) went to the Third Circuit invoking sought writs of prohibition and mandamus to order the district court (Judge Marsh) to change his ruling. Rejecting the petitions, the Third Circuit affirmed that district courts possessed the authority to order relocation while the habeas petition was pending. Johnson v. Marsh has been cited in more recent cases to illustrate that findings of extraordinary circumstances may “be limited to situations involving poor health or the impending completion of the prisoner’s sentence.” Landano, 970 F.2d at 1239.
45. The court in In re Souels addressed what showing of health problems constituted extraordinary circumstances. See 688 F. App’x at 135-36. Sean Souels, who was serving a 46-month federal prison sentence, petitioned for a writ of mandamus directing the court to rule on his writ of habeas corpus and sought release pending the decision. Id. at 134. The court denied Souels bail because “he [did] not describe his medical conditions in any detail or explain how he cannot manage his health issues while he is in prison.” Id.
46. Health is not the only extraordinary circumstance that has been the basis for enlargement. For example, in United States v. Josiah, William Josiah brought a writ of habeas corpus after
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the Supreme Court invalidated the residual clause of the Armed Career Criminal Act (ACCA) and altered the method for determining whether prior convictions qualify as violent felonies under the ACCA. 2016 WL 1328101, at *2 (D. Haw. Apr. 5, 2016). Josiah, who was serving a federal prison sentence argued that his prior convictions did not qualify as violent felonies and that he should not be subject to the fifteen-year mandatory minimum. The district court concluded that because the issue of retroactivity was pending before the Supreme Court and Josiah would have served his full sentence if the Court held its prior ruling retroactive, release pending the higher court’s ruling was appropriate. Id. at *4-6.
47. In circumstances similar to Josiah, a district judge sitting in the Central District of Illinois issued three orders granting release, termed bail, to petitioners pending resolution of their habeas claims. See Zollicoffer v. United States, No. 1503337, 2017 WL 79636 (C.D. Ill. Jan. 9, 2017); United States v. Jordan, No. 04-20008, 2016 WL 6634852 (C.D. Ill. Nov. 9, 2016); Swanson v. United States, No. 15-03262, 2016 WL 5422048 (C.D. Ill. Sept. 28, 2016).
48. Another case involved enlargement in the context of the military. See Gengler v. U.S. through its Dep't of Def. & Navy, 2006 WL 3210020, at *6 (E.D. Cal. Nov. 3, 2006). As that court explained, a “district court has the inherent power to enlarge a petitioner on bond pending hearing and decision on his petition for writ of habeas corpus.” Id. at *5. The judge also noted that a “greater showing must be made by a petitioner seeking bail in a criminal conviction habeas ‘than would be required in a case where applicant had sought to attack by writ of habeas corpus an incarceration not resulting from a judicial determination of guilt.’” The court used the test of “exceptional circumstances and, at a minimum, substantial questions as to the merits.” Id. at 13. The court found “exceptional circumstances” based on the fact that the petitioner had been admitted to business school, had been granted permission by his commanding officer to attend, and would be forced to drop out if his custody were not enlarged. The court also ruled that “substantial questions as to the merits” existed because of alleged government errors in drafting the petitioner’s service agreement. Id. at *6.
49. As of this writing, a few reported cases discuss COVIDbased requests for enlargement while a habeas corpus proceeding is pending. In addition, many decisions address requests for release under federal statutes as well as other remedies.
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50. Given the fast pace of litigation and the many concerns

about people’s well-being, UCLA has created a website that is

regularly updated and compiles materials and decisions related to

COVID. See UCLA Law Covid-19 Behind Bars Data Project, available

at

https://docs.google.com/spreadsheets/d/1X6uJkXXS-

O6eePLxw2e4JeRtM41uPZ2eRcOA_HkPVTk/edit#gid=708926660.

51. Below I provide a few illustrations of decisions since April that are related to COVID and enlargement.

52. On April 7, the Honorable Jesse Furman, sitting in the Southern District of New York, granted on consent a motion styled “for bail” (the term used in the Second Circuit Mapp decision). Judge Furman ordered immediate release under specified conditions, pending the adjudication of the Section 2255 Motion. See United States v. Nkanga, No. 18-CR-00730 (S.D.N.Y., Apr. 7, 2020).

53. A second case involves a class action filed by Craig Wilson and others. See Wilson v. Williams, No. 4:20-cv-00794-JG, 2020 WL 1940882, at *1 (N.D. Ohio Apr. 22, 2020). Seeking to represent a class of all current and future prisoners of the Elkton Federal Correctional Institution (FCI) and a subclass of the medically vulnerable population, they sought relief because their continued incarceration subjected all FCI prisoners to substantial risk of harm in violation of the Eighth Amendment.

54. On April 22, 2020, the federal district court granted in part the request by the Wilson class for emergency relief, which included enlargement of a subclass of prisoners challenging the manner in which the sentence was served and hence cognizable as a habeas petition. See Wilson v. Williams, No. 4:20-cv-00794-JG, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020). The Sixth Circuit denied a stay soon thereafter. See Wilson v. Williams, No. 4:20CV-00794, 2020 WL 2308441, at *1 (6th Cir. May 8, 2020).

55. The Wilson case also cited to Money v. Pritzker, No. 120 CV 02094, 2020 WL 1920660, at *1 (N.D. Ill. April 10, 2020), a class action seeking relief on behalf of state prisoners, and the Wilson court referenced that I had also submitted a declaration similar to this one in that action. In Money, I discussed enlargement as well as the interaction between civil rights litigation and habeas corpus. Id. at *8–9. The Honorable Robert M. Dow, Jr. invoked my discussion, and the court determined not to grant the emergency relief sought by the plaintiff class. Id.

56. On May 12, 2020, the Honorable Michael Shea issued another decision responding to a petition challenging treatment of

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prisoners at three facilities that compromise FCI Danbury. In Martinez-Brooks v. Easter, 3-20-cv-00569-MPS, 2020 WL 2405350 (D. Conn., May 12, 2020). Judge Shea granted in part the request for a temporary restraining order and required “the Warden at FCI Danbury to adopt a process for evaluating inmates with COVID-19 risk factors for home confinement and other forms of release that is both far more accelerated and more clearly focused on the critical issues of inmate and public safety than the current process.” Id. at *1. He also ordered expedited discovery and scheduled a June hearing on the request for a preliminary injunction. Id. In that opinion, Judge Shea discussed enlargement as he analyzed the relief sought by the petitioners. Id. at *2
57. Another case has less relevance as it was brought by an unrepresented litigant, Richard Peterson, who had originally sought habeas corpus relief on a claim about education credits and then filed an emergency request for release from a California state prison due to COVID-19. Peterson v. Diaz, No. 2:19-CV-01480, 2020 WL 1640008, at *1 (E.D. Cal. Apr. 2, 2020). The district court noted that a class action raising COVID claims was pending in another federal court in California and that, while the court had the authority to release a person while a habeas petition was pending, Mr. Peterson had not provided evidence sufficient to meet the test to do so. Id.
Conclusion
58. In sum, COVID-19 is an unprecedented event that, in my view, raises the legal question of whether, in light of the government mandates for social distancing, sentences (that had been lawful when they were imposed) cannot lawfully be served when the setting puts an individual in a position of untenable risk. Thus, habeas corpus – which addresses the constitutionality of sentences and offers the possibility of release and enlargement – properly provides a jurisdictional basis and remedies for this situation.
59. I need also to note that, in recent years, the Supreme Court has raised questions in many contexts about the remedial powers of federal judges. Whether the topic is nationwide injunctions or commercial contracts, debates have occurred within the Court about the authority of federal judges.
60. Those cases do not address the extraordinary and painful moment in which we are all living. Ordinary life has been up-ended in an effort to keep as many people as possible alive and not
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debilitated by serious illness. Moreover, the Supreme Court opinions have not focused on the relevance of those remedial debates to situations were confinement can put entire staffs and detained populations at mortal risk. Therefore, judges have the obligation and the authority to interpret statutes and the Constitution to preserve the lives of people living in and working in prisons. It is my hope that this account of earlier uses of enlargement and the dense account of case law and doctrine will be of service to this Court and to the parties in understanding the meaning and import of American law. Dated: May 14, 2020
__________________________ Judith Resnik
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Judith Resnik
Address Yale Law School 127 Wall Street, P.O. Box 208215 New Haven, CT 06520-8215

Tel: (203) 432-1447 Fax: (203) 432-1719 Email: judith.resnik@yale.edu

Employment Arthur Liman Professor of Law, Yale Law School, 1997-present Founding Director, Arthur Liman Center for Public Interest Law Honorary Visiting Professor, University College London Faculty of Law, 2009-2021 Visiting Professor, Dauphine Université Paris, March 2016 Visiting Professor, Université Panthéon-Assas Paris II, May 2015 Convening Professor, Constituting Federalism, a seminar for the Institute for Constitutional History in conjunction with the New York Historical Society, February 2014 Scholar in Residence, Columbia Law School, Spring 2011; 2012 Distinguished Visiting Professor, University of Toronto School of Law, 2005 Parsons Visitor, Sydney University School of Law, 2004
Visiting Professor, New York University School of Law, 1996-1997 Visiting Professor, Harvard Law School, Fall 1989 Visiting Professor, Yale Law School, Spring 1989 Visiting Professor, University of Chicago Law School, Fall 1988
Orrin B. Evans Professor of Law, University of Southern California, 1989-1997; Professor of Law: 1985-1989; Associate Professor: 1982-1985; Assistant Professor: 1980-1982 Member, Faculty, The Salzburg Seminar on U.S. Legal Institutions, July 1988
Acting Director, Daniel and Florence Guggenheim Program in Criminal Justice, Yale Law School, 1979-1980
Lecturer in Law and Supervising Attorney, Yale Law School, 1977-1979
Instructor, New York University School of Law, 1976-1977
Law Clerk, Honorable Charles E. Stewart, United States District Court, Southern District of New York, 1975-1976
Selected Professional Activities Chair of Fellows Selection Committee and Founding Director, Arthur Liman Center for Public Interest Law, Yale Law School, 1997-present

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Chair, Yale Law School Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2012-present
Member, Board of Managerial Trustees, International Association of Women Judges, 2001-present
Chair, Order of the Coif Book Award Committee, 2018-2020 Fellow, Whitney Humanities Center, 2020-2021 Chair, American Association of Law Schools, Section on Law and Humanities, 2020 Chair, American Association of Law Schools, Section on its Sections, 2019-2022 Advisor, American Law Institute, Project on Sexual and Gender-Based Misconduct on
Campus, 2015-present Member, Task Force on Federal Judicial Selection, Project on Government Oversight of
The Constitution Project, 2019 Steering Committee, Women Faculty Forum, Yale University, 2001-present
Co-chair, 2001-2003, 2006-2008 Co-Chair, Judicial-Academic Network, National Association of Women Judges,
2009-2019, 1998-2001 Academic Fellow, Pound Civil Justice Institute, 2016-present Fellow, Davenport College, Yale University, 2002-present Former Chair, Section on Civil Procedure, American Association of Law Schools;
2018, 2003, 1991 Member, Executive Committee, Section on Federal Courts, American Association of
Law Schools, 1999-2004, 2014-present; chair, 2002 Member, Executive Committee, Section on Law and the Humanities, American
Association of Law Schools, 2015-present Member, Academic & Scientific Council, The Gender Equality Project, Switzerland,
2009-present Advisor, European Law Institute and International Institute for the Unification of Private
Law Project, From Transnational Principles to Rules of European Civil Procedure, 2015-2016 Member, Executive Session, State Courts in the Twenty-First Century, The Kennedy School, Harvard University, 2008-2011 Member, Advisory Group, Principles of the Law of Aggregate Litigation, American Law Institute, 2004-2009 Member, Standing Committee on Federal Judicial Improvements, American Bar Association, 2006-2010 (prior three-year term in the late 1990s); Chair, Academic Advisory Committee to the Standing Committee on Federal Judicial Improvements, American Bar Association, 2010-2014 Member, Editorial Board, Yale Journal of Law and Feminism Member, Editorial Advisory Board, Yale Journal of Law and the Humanities Member, Advisory Board, Journal of Law and Ethics of Human Rights Member, Advisory Board, Litigation and Procedure, and Negotiation and Dispute Resolution eJournals (Social Science Research Network, online) Member, Advisory Board, Women’s Studies Quarterly
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Other Activities Co-chair of the Board, Fansler Foundation, 2003-2014 Member, National Board of Academic Advisors for the William H. Rehnquist Center on the Constitutional Structures of Government, 2007-2009 Member, Advisory Board of the Science for Judges Project, Brooklyn Law School, 2003-2007 Board Member, Lawyers’ Committee for Civil Rights, 2004-2007 Liaison, American Association of Law Schools to the American Bar Association Commission on Women, 2000-2005 Member, Advisory Board of the Center for Judicial Process, Albany Law School, 2000-2004 Member, Editorial Board, Law and Social Inquiry, 1998-2004 Member, Committee on Diversity in Legal Education of the Section of Legal Education and Admissions to the Bar of the American Bar Association, 1996-2002 Consultant, RAND, Institute for Civil Justice, 1980-2002 Member, Editorial Board, The Justice System Journal Member, Board of Governors, Society of American Law Teachers, 1980-1997 Co-Chair, University of Southern California Feminist Council, 1990-1996 Member, Ninth Circuit Gender Bias Task Force, 1990-1994 Co-Chair, Robert M. Cover Memorial Public Interest Retreat, Society of American Law Teachers, 1988-1992 Member of and a general reporter for the International Association of Procedural Law, 1991 Conference Member, Planning Committee, ABA-AALS Conference on Women in Legal Education, 1990 Member, Advisory Panel to a Subcommittee of the Federal Courts Study Committee, 1989-1990 Member, Steering Committee for the Center for Feminist Research, University of Southern California, 1990-1994 Member, American Bar Association, Litigation Section, Federal Initiatives Task Force, 1991-1993 Chair, Section on Women in Legal Education, American Association of Law Schools, 1989 Member, Twentieth Century Fund Task Force on Judicial Responsibility, 1988-1989 Member, Board of ACLU of Southern California, 1985 Chair, Bryn Mawr College Centennial Campaign for Southern California, 1983-1985
Courses taught at Yale Law School, 1997-2020 Federal and State Courts in the Federal System Procedure Equality, Sovereignty and Citizenship (with Prof. Reva Siegel) Gender: Globally and Locally (with Prof. Vicki Jackson) Liman Workshops (topics and co-teachers vary yearly) Rationing Law: Subsidizing Access to Justice in Democracies Poverty and the Courts: Fines, Fees, Bail, and Collective Redress
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Who Pays? Fines, Fees, Bail, and the Cost of Courts Imprisoned Human Rights, Incarceration, and Criminal Justice Reform Moving Criminal Justice: Practices of Reform Incarceration Borders Rationing Law: Constitutional Entitlements to Courts in an
Era of Fiscal Austerity Abolition: Slavery, Supermax, and Social Movements Accessing Justice and Rights – From Streets to Prisons Community, Confinement, Labor, and Rights Equality, Punishment, and Incarceration Imprisoned Detention Federalism and Social Movements: Public Interest Lawyering
in Cities and States Citizenship Constitutional Law as Public Interest Law
Publications Books and Monographs
Fragile Futures and Resiliency: Litigating Climate Change, Judging Under Stress (coeditor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2019)
Ability to Pay (co-editors Anna VanCleave, Alexandra Harrington, Jeff Selbin, Lisa Foster, Joanna Weiss, Faith Barksdale, Alexandra Eynon, Stephanie Garlock, and Daniel Phillips, Arthur Liman Center for Public Interest Law Colloquium, 2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3387647
Working to Limit Restrictive Housing: Efforts in Four Jurisdictions to Make Changes (editor, Arthur Liman Center for Public Interest Law and Association of State Correctional Administrators, 2018).
Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-inCell (co-author, Arthur Liman Center for Public Interest Law and Association of State Correctional Administrators, 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3264350
Global Reconfigurations, Constitutional Obligations, and Everyday Life (co-editor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2018)
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Who Pays? Fines, Fees, Bail, and the Cost of Courts (co-editors Anna VanCleave, Kristen Bell, Skylar Albertson, Natalia Friedlander, Illyana Green, and Michael Morse, Arthur Liman Center for Public Interest Law Colloquium, 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3165674
Reconstituting Constitutional Orders (co-editor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2017)
Aiming to Reduce Time-In-Cell: Reports from Correctional Systems on the Numbers of Prisoners in Restricted Housing and on the Potential of Policy Changes to Bring About Reforms (co-author, Yale Law School Arthur Liman Public Interest Program and Association of State Correctional Administrators, 2016)
Rethinking ‘Death Row’: Variations in the Housing of Individuals Sentenced to Death (co-authors Celina Aldape, Ryan Cooper, Katie Haas, April Hu, Jessica Hunter, and Shellie Shimizu, Arthur Liman Public Interest Program, 2016), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2874492
Acts of State, Acts of God (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2016)
Time-in-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison (co-author, Yale Law School Arthur Liman Public Interest Program and Association for State Correctional Administrators, 2015), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2655627
The Reach of Rights (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2015)
The Invention of Courts, Daedalus: Journal of the American Academy of Arts and Sciences (co-editor Linda Greenhouse, Summer 2014)
Isolation and Reintegration: Punishment Circa 2014 (co-editors Hope Metcalf and Megan Quattlebaum, Arthur Liman Public Interest Program Colloquium, 2014)
Sources of Law and of Rights (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2014)
Governments’ Authority (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2013)
Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies (co-authors Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Julia Spiegel, Haran Tae, Alyssa
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Work, and Brian Holbrook , Arthur Liman Public Interest Program, 2013), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2286861
Law’s Borders (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2012)
Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (with Dennis E. Curtis, Yale University Press, 2011)
Federal Courts Stories (co-editor Vicki Jackson, Foundation Press, 2010)
Migrations and Mobilities: Citizenship, Borders, and Gender (co-editor Seyla Benhabib, New York University Press, 2009)
The Processes of the Law: Understanding Courts and Their Alternatives (Foundation Press, 2004)
Adjudication and Its Alternatives: An Introduction to Procedure (with Owen Fiss, Foundation Press, 2003)
The Effects of Gender: The Final Report of the Ninth Circuit Gender Bias Task Force (July 1993) (with The Hon. John C. Coughenour, The Hon. Proctor Hug, Jr., The Hon. Marilyn Patel, Terry W. Bird, Deborah R. Hensler, M. Margaret McKeown, and Henry Shields, Jr.), also reprinted in 67 Southern California Law Review 745 (1994)
Procedure (with Robert Cover and Owen Fiss, Foundation Press, 1988)
The Federal Procedural System: A Rule and Statutory Source Book (with Robert Cover and Owen Fiss, Foundation Press, 1988, 1989, 1991)
Chapters in Books Not Isolating Isolation, in Solitary Confinement: History, Effects, and Pathways to
Reform at 89-114 (Jules Lobel and Peter Scharff-Smith, eds., Oxford University Press, 2020)
Courts and Economic and Social Rights/Courts as Economic and Social Rights, in The Future of Economic and Social Rights at 259-286 (Katharine G. Young, ed., Cambridge University Press, 2019)
The Functions of Publicity and of Privatization in Courts and their Replacements (from Jeremy Bentham to #MeToo and Google Spain) in Open Justice: The Role of Courts in a Democratic Society at at 177-252 (Burkhard Hess and Ana Koprivica, eds., Max Planck Institute, Luxembourg, Nomos, 2019)
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Judicial Methods of Mediating Conflicts: Recognizing and Accommodating Differences in Pluralist Legal Regimes, in Judicial Power: How Constitutional Courts Affect Political Transformations at 250-280 (Christine Landfried, ed., Cambridge University Press, 2019)
On Darkness and Light in Legal Imagination and in Practice, in The Dark Sides of the Law: Perspectives on Law, Literature, and Justice in Common Law Countries at 13-29 (Geraldine Gadbin-George, Yvonne-Marie Rogez, Armelle Sabatier, and Claire Wrobel, eds., Editions Michel Houdiard, 2019)
Bordering by Law: The Migration of Law, Crimes, Sovereignty, and the Mail, in Nomos LVII: Immigration, Emigration, and Migration, at 79-201 (Jack Knight, ed., New York University Press, 2017)
Why Eyes? Cautionary Tales from Law’s Blindfolded Justice (with Dennis E. Curtis), in Blinding as a Solution to Bias in Biomedical Science and the Courts: A Multidisciplinary Approach, at 227-247 (Aaron Kesselheim and Christopher Robertson, eds., Elsevier Press, 2016)
Constructing the “Foreign:” American Law’s Relationship to Non-Domestic Sources, in Courts and Comparative Law, at 437-471 (Mads Andrenas and Duncan Fairgrieve, eds., Oxford University Press, 2015)
Epistemological Doubt and Visual Puzzles of Sight, Knowledge, and Judgment: Reflections on Clear-Sighted and Blindfolded Justices (with Dennis E. Curtis), in Genealogies of Legal Vision, at 201-242 (Peter Goodrich and Valérie Hayaert, eds., London: Routledge, 2015)
Federalism(s)’s Forms and Norms: Contesting Rights, De-Essentializing Jurisdictional Divides, and Temporizing Accommodations, in Nomos LV: Federalism and Subsidiarity, at 363-435 (James E. Fleming and Jacob T. Levy, eds., New York University Press, 2014)
Constructing Courts: Architecture, the Ideology of Judging, and the Public Sphere (with Dennis E. Curtis and Allison Tait), in Law, Culture & Visual Studies, at 547-572 (Richard K. Sherwin and Anne Wagner, eds., Springer Publishing Company, 2013)
“Hear the Other Side:” Miranda, Guantánamo, and Public Rights to Fairness and Dignity, in Law and the Quest for Justice, at 85-109 (Marjorie S. Zatz, Doris Marie Provine, and James P. Walsh, eds., Quid Pro Books, 2013)
Old and New Depictions of Justice: Reflections, Circa 2011, on Hill-Thomas, in I Still Believe Anita Hill, at 51-70 (Amy Richards and Cynthia Greenberg, eds., The Feminist Press, 2012)
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Changing the Climate: The Role of Translocal Organizations of Government Actors (TOGAs) in American Federalism(s), in Navigating Climate Change Policy: The Opportunities of Federalism, at 120-143 (Edella C. Schlager, Kirsten H. Engel, and Sally Rider, eds., The University of Arizona Press Tucson, 2011)
Sisterhood, Slavery and Sovereignty: Transnational Women’s Rights Movements from 1840 through the Beginning of the Twenty-first Century, in Women’s America: Seventh Edition, at 781-790 (Linda Kerber, Cornelia Hughes Dayton, and Jane De Hart, eds., Oxford University Press, 2010)
New Federalism(s): Translocal Organizations of Government Actors (TOGAs) Reshaping Boundaries, Policies, and Laws, in Why the Local Matters: Federalism, Localism, and Public Interest Advocacy, at 83-99 (published by the Liman Public Interest Program at Yale Law School, and the National State Attorneys General Program at Columbia Law School, 2010)
Managerial Judges, Jeremy Bentham and the Privatization of Adjudication, in Common Law, Civil Law and the Future of Categories, at 205-224 (Janet Walker and Oscar G. Chase, eds., LexisNexis Canada, 2010), also published in 49 S.C.L.R. (2d) 205 (2010)
What’s Federalism For?, in The Constitution 2020, at 269-284 (Jack Balkin and Reva Siegel, eds., Oxford University Press, 2009)
Judicial Independence, in Global Perspectives on Constitutional Law, at 15-33 (Vikram David Amar and Mark V. Tushnet, eds., Oxford University Press, 2008)
From “Rites” To “Rights” of Audience: The Utilities and Contingencies of the Public’s Role in Court-Based Processes (with Dennis E. Curtis) in Representation of Justice, at 195-236 (Antoine Masson and Kevin O’Connor, eds., P.I.E. - Peter Lang, 2007)
Sisterhood, Slavery, and Sovereignty: Transnational Antislavery Work and Women’s Rights Movements in the United States During the Twentieth Century, in Women’s Rights and Transatlantic Antislavery in the Era of Emancipation, at 1954 (Kathryn K. Sklar and James Brewer Stewart, eds., Yale University Press, 2007)
Gendered Borders and United States’ Sovereignty, in Women and Immigration Law: New Variations on Classical Feminist Themes, at 44-63 (S.K. Van Walsum and T. Spijkerboer, eds., Routledge-Cavendish Press, 2006)
Contracting Civil Procedure, in Law and Class in America: Trends Since the Cold
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War, at 60-86 (Paul Carrington and Trina Jones, eds., New York University Press, 2006)
Democratic Responses to the Breadth of Power of the Chief Justice, in Reforming the Court: Term Limits for Supreme Court Justices, at 181-200 (Paul D. Carrington and Roger C. Cramton, eds., Carolina Academic Press, 2006)
Composing a Judiciary: Reflections on Proposed Reforms in The United Kingdom on How to Change the Voices of and the Constituencies for Judging, in Constitutional Innovation: The Creating of A Supreme Court for the United Kingdom; Domestic, Comparative and International Reflections, A Special Issue of Legal Studies, at 228-252 (Derek Morgan, ed., LexisNexis, United Kingdom, 2004)
The Story of Goldberg: Why This Case Is Our Shorthand, in Civil Procedures Stories: An In-Depth Look at the Leading Civil Procedure Cases, at 473-508 (Kevin M. Clermont, ed., Foundation Press, 2004; 2nd ed., 2007)
Federalism(s), Feminism, Families, and the Constitution, in Women and the United States Constitution: History, Interpretation, and Practice, at 127-152 (Sybil A. Schwarzenbach and Patricia Smith, eds., Columbia University Press, 2004)
The Rights of Remedies: Collective Accountings for and Insuring Against the Harms of Sexual Harassment in Directions in Sexual Harassment Law, at 247-271 (Reva Siegel and Catherine MacKinnon, eds., University Press, 2004)
Civil Processes, in Oxford Handbook of Legal Studies, at 478-772 (Peter Cane and Mark Tushnet, eds., Oxford Press, 2003)
Women, Meeting (Again), In and Beyond the United States, Afterword to The Difference Difference Makes: Women and Leadership, at 203-216 (Deborah L. Rhode, ed., Stanford University Press, 2003)
Procedure: Legal Aspects (Vol.18), in International Encyclopedia of the Social & Behavioral Sciences, at 12136-12141 (Neil J. Smelser and Paul B. Baltes, eds., Elsevier Press, 2001)
Contested Identities: Task Force on Gender, Race, and Ethnic Bias and the Obligations of the Legal Profession (with Deborah Hensler) in Ethics in Practice, Lawyers’ Roles, Responsibilities, and Regulation, at 240-263 (Deborah L. Rhode, ed., Oxford University Press, 2000)
Federal Judicial Role (Vol. III); Single-Sex Education (Vol. V); Procedural Due Process Civil (Update I, Vol. IV), in The Encyclopedia of the American Constitution, 2nd
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edition, (Leonard Levy, Kenneth L. Karst, Adam Winkler, Dennis J. Mahoney, and John G. West, Jr., eds., Macmillan, 2000)
Singular and Aggregate Voices: Audiences and Authority in Law & Literature and in Law & Feminism, in Law and Literature: Current Legal Issues, Vol. II, at 687727 (Michael Freeman and Andrew D. E. Lewis, eds., Oxford University Press, 1999)
Foreword (with Carolyn Heilbrun) to Beyond Portia: Women, Law & Literature in the United States, at 11-52 (Jacqueline St. Joan and Annette Bennington McElhiney, eds., Northeastern University Press, 1997)
Procedure, in Looking at Law School, at 177-195 (Stephen Gillers, ed., Penguin Books, NY, 4th ed., 1997; 3rd ed., 1990)
From the Senate Judiciary Committee to the County Courthouse: The Relevance of Gender, Race, and Ethnicity to Adjudication, in Race, Gender, and Power in America, The Legacy of the Hill-Thomas Hearings, at 177-227 (Anita Hill and Emma Jordan, eds., Oxford Press, 1995)
Gender in the Courts: The Task Force Reports, in The Woman Advocate, Excelling in the 90’s, at 3-38 (Jean Maclean Snyder and Andra Barmash Greene, eds., Prentice Hall Law & Business, 1995)
Finding the Factfinders, in Verdict: Assessing the Civil Justice System, at 500-530 (Robert E. Litan, ed., Brookings, May 1993)
Independent and Inter-dependent: The Ninth Circuit and the Federal Judiciary, in Restructuring Justice, at 321-330 (Arthur Hellman, ed., Cornell Press, 1990)
The Perception of Justice: Tort Litigants’ Views of Trial, Court-Annexed Arbitration, and Judicial Settlement Conferences (with E. Allan Lind, Robert MacCoun, Patricia Ebener, William L.F. Felstiner, Deborah R. Hensler, and Tom R. Tyler), The RAND Corporation, Institute for Civil Justice (1989)
Should Prisoners Be Classified by Sex?, in Criminal Corrections: Ideals and Realities, at 109-123 (J. Doig, ed., Mass: Lexington Books, Fall 1982)
Discrimination in Education, Chapter XXVIII in Dorsen, Bender, Neuborne, and Law, in Political and Civil Rights in the United States, at 107-173 (Little Brown, 1979, Supplement, 1981)
Prisoners of Their Sex: Health Problems of Incarcerated Women (with Nancy Shaw) in Prisoners’ Rights Sourcebook: Theory, Practice, and Litigation, Vol. II, at 319-
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413 (Ira Robbins, ed., N.Y.: Clark Boardman, 1980, reprinted in 3 Prison Law Monitor 57-58, March 1981)
Federal Prisoners’ Access to Federal Courts: Jurisdiction and Related Procedural Matters, Prisoners Rights, at 85-158 (N.Y.: PLI, 1979)
Undelivered Care: The Incapacitated and the Mentally Ill New York City Defendant, A Report to the Mayor's Criminal Justice Coordinating Council (August 1973) (co-authored)
Articles Constituting Security and Fairness: Reflecting on Charles Reich’s Imagination and
Impact, 129 Yale Law Journal Forum 707 (2020)
Inability to Pay: Court Debt Circa 2020 (with David Marcus), 98 North Carolina Law Review 361 (2020)
(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin,” 129 Yale Law Journal Forum 365 (2020)
Book Review: The Challenges of Engaging “The Art of Law: artistic representations and iconography of law and justice in context, from the middle ages to the first world war,” in 7 Comparative Legal History 239 (2019)
Sentencing Inside Prisons: Efforts to Reduce Isolating Conditions (with Kristen Bell), 87 University of Missouri Kansas City Law Review 133 (2018)
A2J/A2K: Access to Justice, Access to Knowledge, Economic Inequalities, and Open Courts and Arbitrations, 96 North Carolina Law Review 605 (2018)
Reorienting the Process Due: Using Jurisdiction to Forge Post-Settlement Relationships Among Litigants, Courts, and the Public in Class and Other Aggregate Litigation, 92 New York University Law Review 1017 (2017)
“Vital” State Interests: From Representative Actions for Fair Labor Standards to Pooled Trusts, Class Actions, and MDLs in the Federal Courts, 165 University of Pennsylvania Law Review 1765 (2017)
Lawyers’ Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration Mandates, and Privatized Processes, 85 Fordham Law Review 1899 (2017)
Accommodations, Discounts, and Displacement: The Variability of Rights as a Norm of Federalism(s), 17 Jus Politicum 209 (2017)
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“Within Its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proceedings of the American Philosophical Society 117 (2016)
Revising Our “Common Intellectual Heritage”: Federal and State Courts in Our Federal System, 91 Notre Dame Law Review 1831 (2016)
Time-In-Cell: Isolation and Incarceration (with Sarah Baumgartel and Johanna Kalb), 125 Yale Law Journal Forum (2016); http://www.yalelawjournal.org/forum/time-in-cell-isolation-and-incarceration
The Contingency of Openness in Courts: Changing the Experiences and Logics of Publics’ Role in Court-Based ADR, 15 Nevada Law Journal 1631 (2015)
Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale Law Journal 2804 (2015); published in Portuguese in Grandes Temas do Novo CPC: Justiça Multiportas: Mediação, Conciliação, Arbitragem e Outros Meios de Solução Adequada Para Conflitos (DIDIER JR., Fredie; ZANETI JR., Hermes; CABRAL, Tricia Xavier Navarro eds., Salvador: JusPodvim, 2016))
Reinventing Courts as Democratic Institutions, Daedalus: Journal of the American Academy of Arts and Sciences 9 (Summer 2014)
The Privatization of Process: Requiem for and Celebration of the Federal Rules of Civil Procedure at 75, 162 University of Pennsylvania Law Review 1793 (2014)
Inventing Democratic Courts: A New and Iconic Supreme Court (with Dennis E. Curtis), 38 Journal of Supreme Court History 207 (2013)
Gideon at Guantánamo: Democratic and Despotic Detention (with Hope Metcalf), 122 Yale Law Journal 2504 (2013)
Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies (with Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Julia Spiegel, Haran Tae, Alyssa Work, and Brian Holbrook) (2013)
The Democracy in Courts: Jeremy Bentham, ‘Publicity’, and the Privatization of Process in the Twenty-First Century, NoFo 10 (2013)
Globalization(s), privatization(s), constitutionalization and statization: Icons and experiences of sovereignty in the 21st century, 11 International Journal of Constitutional Law (IꞏCON) 162 (2013)
Equality’s Frontiers: Courts Opening and Closing, 122 Yale Law Journal
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Online 243 (2013)
Opening the Door: Ruth Bader Ginsburg, Law’s Boundaries, and the Gender of Opportunities, 25 Columbia Journal of Gender and Law 81 (2013)
Constitutional Entitlements to and in Courts: Remedial Rights in an Age of Egalitarianism: The Childress Lecture, 56 St. Louis University Law Journal 916 (2012)
Comparative (In) equalities: CEDAW, the jurisdiction of gender, and the heterogeneity of transnational law production, 10 International Journal of Constitutional Law (IꞏCON) 531 (2012)
Building the Federal Judiciary (Literally and Legally): The Monuments of Chief Justices Taft, Warren, and Rehnquist, 87 Indiana Law Journal 823 (2012)
Re-Presenting Justice: Visual Narratives of Judgment and the Invention of Democratic Courts (with Dennis E. Curtis), 24 Yale Journal of Law and the Humanities 19 (2012)
Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 Harvard Law Review 78 (2011)
The Production and Reproduction of Constitutional Norms, 35 New York University Review of Law & Social Change 226 (2011)
Bring Back Bentham: “Open Courts,” “Terror Trials,” and Public Sphere(s), 5 Law & Ethics of Human Rights 226 (2011)
Compared to What?: ALI Aggregation and the Shifting Contours of Due Process and of Lawyers’ Powers, 79 George Washington Law Review 628 (2011)
Reading Reinhardt: The Work of Constructing Legal Virtue (Exempla Iustitiae), 120 Yale Law Journal 539 (2010)
Kyoto at the Local Level: Federalism and Translocal Organizations of Government Actors (TOGAs) (with Joshua Civin and Joseph Frueh), 40 Environmental Law Reporter 10768 (2010)
Detention, The War on Terror, and the Federal Courts, 110 Columbia Law Review 579 (2010)
The Internationalism of American Federalism: Missouri and Holland (Earl F. Nelson Memorial Lecture), 73 Missouri Law Review 1105 (2009)
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Courts: In and Out of Sight, Site, and Cite, 53 Villanova Law Review 771 (2008)
Interdependent Federal Judiciaries: Puzzling about Why and How to Value the Independence of Which Judges, Daedalus 28 (2008)
Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs) (with Joshua Civin and Joseph Frueh), 50 Arizona Law Review 709 (2008)
Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: “The Political Safeguards” of Aggregate Translocal Actions, 156 University of Pennsylvania Law Review 1929 (2008)
Law as Affiliation: “Foreign” Law, Democratic Federalism, and the Sovereigntism of the Nation-State, 6 International Journal of Constitutional Law (IꞏCON) 33 (2008)
Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism, 57 Emory Law Journal 31 (2007)
Representing Justice: From Renaissance Iconography to Twenty-First Century Courthouses (with Dennis E. Curtis), Henry la Barre Jayne Lecture, 151 Proceedings of the American Philosophical Society 139 (2007)
Roscoe Pound Round-Table Discussion, in Conference of Chief Justices and Council on State Court Administrators Symposium, 82 Indiana Law Journal 1157 (2007)
No Daubert Hearing Necessary: The Extraordinary Expertise of Margaret Berger, 16 Journal of Law and Policy 6 (2007)
Whither and Whether Adjudication?, 86 Boston University Law Review 1101 (2006)
Uncovering, Disclosing, and Discovering How the Public Dimensions of CourtBased Processes Are at Risk, 81 Chicago-Kent Law Review 521 (2006)
Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States (with Lane Dilg), 154 University of Pennsylvania Law Review 1575 (2006)
Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry, 115 Yale Law Journal 1564 (2006)
Living Their Legal Commitments: Paideic Communities, Courts and Robert Cover, 17 Yale Journal of Law & the Humanities 17 (2005)
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Procedure as Contract, 80 Notre Dame Law Review 593 (2005)
Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo Law Review 579 (2005)
Procedure’s Projects, 23 Civil Justice Quarterly 273 (2004)
Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts, 3 Journal of Empirical Legal Studies 783 (2004)
Tribes, Wars, and the Federal Courts: Applying the Myths and the Methods of Marbury v. Madison to Tribal Courts’ Criminal Jurisdiction, 36 Arizona State Law Journal 77 (2004)
The Independence of the Federal Judiciary, in Proceedings of the American Academy of Arts and Sciences, 17 Bulletin 22 (2004)
For Owen M. Fiss: Some Reflections on the Triumph and the Death of Adjudication, 58 University of Miami Law Review 173 (2003)
A Continuous Body: Ongoing Conversations About Women and Legal Education, 53 Journal of Legal Education 564 (2003)
Of Courts, Agencies, and the Court of Federal Claims: Fortunately Outliving One’s Anomalous Character, 71 George Washington Law Review 798 (2003)
Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty (with Julie Suk), 55 Stanford Law Review 1921 (2003)
Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 Indiana Law Journal 223 (2003)
Reconstructing Equality: Of Justice, Justicia, and the Gender of Jurisdiction, 14 Yale Journal of Law and Feminism 393 (2002)
Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement, 2002 University of Missouri-Columbia Journal of Dispute Resolution 155 (2002)
Teaching Billing: Metrics of Value in Law Firms and Law Schools (with Dennis E. Curtis), 54 Stanford Law Review 1409 (2002)
“Uncle Sam Modernizes His Justice”: Inventing the Federal District Courts of the Twentieth Century for the District of Columbia and the Nation, 90 Georgetown Law Journal 607 (2002)
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Remarks, Bicentennial Celebration for the Courts of the District of Columbia Circuit, 204 Federal Rules of Decision 499 (2002)
Grieving Criminal Defense Lawyers (with Dennis E. Curtis), 70 Fordham Law Review 1615 (2002)
Engendering Democracy through Understanding Federal Family Law, 11 The Good Society (A PEGS Journal) 79 (2002)
Tribute to Norman Dorsen, 58 Annual Survey of American Law 29 (2001)
Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 Yale Law Journal 619 (2001)
Procedure: Legal Aspects, 18 International Encyclopedia of the Social & Behavioral Sciences (eds. Neil Smelser and Paul Baltes) 12136 (2001)
The Modernity of Judging: Judicial Independence and the 20th Century United States Federal Courts, presented at The 1701 Conference, Vancouver, British Columbia, Canada, May 9-11, 2001, on the 300th anniversary of the 1701 Act of Settlement
The Programmatic Judiciary: Lobbying, Judging, and Invalidating the Violence Against Women Act, 74 Southern California Law Review 269 (2000)
Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation, 148 University of Pennsylvania Law Review 2119 (2000)
Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harvard Law Review 924 (2000)
Judicial Independence and Article III: Too Little and Too Much, 72 Southern California Law Review 657 (1999)
Legal Services: Then and Now (with Emily Bazelon), 17 Yale Law & Policy Review 292 (1998)
The Federal Courts and Congress: Additional Sources, Alternative Texts, and Altered Aspirations, 86 Georgetown Law Journal 2589 (1998)
“The Federal Courts”: Constituting and Changing the Topic, 32 University of Richmond Law Review 603 (1998)
On the Margin: Humanities and Law, 10 Yale Journal of Law and the
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Humanities 413 (1998)
Contingency Fees in Mass Torts: Access, Risk and the Provision of Legal Services When Layers of Lawyers Work for Individuals and Collectives of Clients (with Dennis E. Curtis), 47 DePaul Law Review 425 (1998)
Changing Practices, Changing Rules: Judicial and Congressional Rulemaking in Civil Juries, Civil Justice, and Civil Judging, in a Symposium, Evaluation of the Civil Justice Reform Act, 49 Alabama Law Review 133 (1997); also published in Canadian Institute for the Administration of Justice, The Administration of Justice in Commercial Disputes 149 (1997)
Litigating and Settling Class Actions: The Prerequisites of Entry and Exit, 30 U.C. Davis Law Review 835 (1997)
Afterword: Federalism’s Options, Symposium Issue: Yale Law & Policy Review/Yale Journal on Regulation 465 (1996)
Changing the Topic, 7 The Australian Feminist Law Journal 95 (1996); also published in 8 Cardozo Studies in Law and Literature 339 (Fall/Winter 1996)
Asking About Gender in Courts, 21 Signs: Journal of Women in Culture and Society 952 (Summer 1996)
Individuals Within the Aggregate: Relationships, Representation, and Fees (with Dennis E. Curtis and Deborah Hensler), 71 New York University Law Review 296 (1996)
History, Jurisdiction, and the Federal Courts: Changing Contexts, Selective Memories, and Limited Imagination, 98 West Virginia Law Review 171 (1995)
Sentencing Women, 8 Federal Sentencing Reporter 134 (1995)
Aggregation, Settlement, and Dismay, 80 Cornell Law Review 918 (1995)
Procedural Innovations, Sloshing Over: A Comment on Deborah Hensler, A Glass Half Full, a Glass Half Empty: The Use of Alternative Dispute Resolution in Mass Personal Injury Litigation, 73 Texas Law Review 1627 (1995)
Multiple Sovereignties: Indian Tribes, States, and the Federal Government, 79 Judicature 118 (1995)
Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication, 10 Ohio State Journal on Dispute Resolution 211 (1995)
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Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA Law Review 1471 (1994); also published by RAND, Institute for Civil Justice (1995).
National Courts: Imagining Alternatives to State and Federal Courts, Southern California Law Review 2 (Spring 1995)
Rereading “The Federal Courts:” Revising the Domain of Federal Courts Jurisprudence at the End of the Twentieth Century, 47 Vanderbilt Law Review 1021 (1994)
The Future of Civil Litigation: A Panel Discussion in Symposium, Reinventing Civil Litigation: Evaluating Proposals for Change, 59 Brooklyn Law Review 1199 (1994)
Ambivalence: The Resiliency of Legal Culture in the United States, 45 Stanford Law Review 1525 (1993)
Gender Bias: From Classes to Courts, 45 Stanford Law Review 2195 (1993)
Revising the Canon: Feminist Help in Teaching Procedure, Introduction to a Symposium, 61 University of Cincinnati Law Review 1181 (1993)
Hearing Women, 65 Southern California Law Review 1333 (1992)
“Naturally” Without Gender: Women, Jurisdiction, and the Federal Courts, 66 New York University Law Review 1682 (1991)
Visible on Women’s Issues, 77 Iowa Law Review 41 (1991)
From “Cases” to “Litigation,” 54 Law and Contemporary Problems 5 (1991); also published by RAND, Institute for Civil Justice (1991)
Housekeeping: The Nature and Allocation of Work in the Federal Trial Courts, 24 Georgia Law Review 909 (1990)
In the Eye of the Beholder: Tort Litigants’ Evaluations of their Experiences in the Civil Justice System (with E. Allan Lind, Robert J. MacCoun, Patricia Ebener, William L.F. Felstiner, Deborah R. Hensler, and Tom R. Tyler), 24 Law & Society Review 953 (1990); related monograph, The Perception of Justice; also published by RAND, Institute for Civil Justice (1989)
Feminism and the Language of Judging, 22 Arizona State Law Journal 31 (1990)
Changing Criteria for Judging Judges, 84 Northwestern University Law Review 889 (1990)
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Convergences: Law, Literature, and Feminism (with Carolyn Heilbrun), 99 Yale Law Journal 1913 (1990)
Constructing the Canon, 2 Yale Journal of Law and the Humanities 221 (Winter 1990) Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 University of
Chicago Law Review 671 (1989) Complex Feminist Conversations, University of Chicago Legal Forum 1 (1989) The Domain of Courts, 137 University of Pennsylvania Law Review 2219 (1989) On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 Southern
California Law Review 1877 (1988) The Limits of Parity in Prison, 13 Journal of the National Prison Project 26 (1987) Due Process: A Public Dimension, in Conference on Procedural Due Process: Liberty
and Justice, 39 University of Florida Law Review 405 (1987) Judging Consent, University of Chicago Legal Forum 43 (1987) Images of Justice (with Dennis E. Curtis), 96 Yale Law Journal 1727 (1987) Failing Faith: Adjudicatory Procedure in Decline, 53 University of Chicago Law Review
494 (1986); also published by RAND, Institute for Civil Justice (1986) The Declining Faith in the Adversary System, 13 Litigation 3 (1986) The Mythic Meaning of Article III Courts, 56 University of Colorado Law
Review 581 (1985) Precluding Appeals, 70 Cornell Law Review 603 (1985) Managerial Judges: The Potential Costs, in Symposium, Law and Public Affairs,
45 Public Administration Review 686 (Special Issue, November 1985) Tiers, 57 Southern California Law Review 837 (1984) Commentaries on Prisoner Litigation, 9 Justice System Journal 347 (Winter 1984) The Assumptions Remain, 23 Judges’ Journal 37 (Fall 1984)
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Managerial Judges and Court Delay: The Unproven Assumptions, 23 Judges’ Journal 8 (Winter 1984)
Book Review of The Brandeis/Frankfurter Connection, 71 California Law Review 776 (1983)
Managerial Judges, 96 Harvard Law Review 374 (1982); also published by RAND, Institute for Civil Justice (1982)
Patients’ Rights: Disclosure, Consent, and Capacity (with Nikki Heidepriem), 1973/1974 Annual Survey of American Law 87
Selected Commentary in Newspapers, Magazines, and Journals Protecting Prisoners in Pandemics Is a Constitutional Must, Bloomberg.com, March 30, 2020, https://news.bloomberglaw.com/health-law-and-business/insightprotecting-prisoners-in-pandemics-is-a-constitutional-must
Degrading strip search of 200 women prisoners cries out for courts to act, CNN.com, October 3, 2019, https://www.cnn.com/2019/10/03/opinions/women-prisonershave-rights-resnik/index.html
This Question Changed the Face of the Supreme Court, CNN.com, September 25, 2018; http://www.cnn.com/2018/09/25/opinions/anita-hill-patsy-mink-changed-howwe-see-kavanaugh-judith-resnik/index.html
The Supreme Court’s Arbitration Ruling Undercuts the Court System, HuffPost, May 25, 2018; https://www.huffingtonpost.com/entry/opinion-resnik-forcedarbitration_us_5b08395ae4b0802d69caeb47?1s
To Help #MeToo Stick, End Mandatory Arbitration, HuffPost, January 23, 2018; https://www.huffingtonpost.com/entry/opinion-resnik-mandatoryarbitration_us_5a65fc39e4b0e5630071c15d?g9r
Arbitration Cuts the Public Out and Limits Redress, National Law Journal, August 22, 2016; http://www.nationallawjournal.com/id=1202765654457/ Arbitration-Cuts-the-Public-Out-and-Limits-Redress?slreturn=20160914112502
With One Decision, Obama and Lynch Could Reshape the Criminal Justice System (with Robert Ferguson and Margo Schlanger), The Washington Post online, August 3, 2015; https://www.washingtonpost.com/posteverything/wp/2015/08/03/with-onedecision-obama-could-totally-reform-the-criminal-justice-system/
No Fast Track for Unfair Trade Deals (with Amy Kapczynski), HuffPost Politics, June 11, 2015; http://www.huffingtonpost.com/amy-kapczynski/tpp-isds-no-fast-trackfor-unfair-trade-deals_b_7562084.html?1434041001
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Can Less Confidentiality Mean More Fairness in Campus Sexual Assault Cases? (with Alexandra Brodsky and Claire Simonich), The Nation, February 23, 2015; http://www.thenation.com/article/198713/can-less-confidentiality-mean-morefairness-campus-sexual-assault-investigations
Renting Judges for Secret Rulings, The New York Times, February 28, 2014; http://www.nytimes.com/2014/03/01/opinion/renting-judges-for-secretrulings.html?ref=todayspaper
The Return of the Terrible Plan to Ship Female Inmates from the Northeast to Alabama, Slate, October 4, 2013; http://www.slate.com/blogs/xx_factor/2013/10/04/female_inmates_in_federal_pri son_must_give_up_their_beds_to_men_and_move.html
Keep Female Prisoners Close to Family (with Nancy Gertner), The Boston Globe, September 3, 2013; http://www.bostonglobe.com/opinion/2013/09/03/keepfemale-prisoners-close-family/eQf4dCawmOGmQ41Ap53GxL/story.html
Harder Time: Why are the federal prison beds for women in the Northeast going to men—while the women get shipped to Alabama?, Slate, July 25, 2013; http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/women_i n_federal_prison_are_being_shipped_from_danbury_to_aliceville.html
How “Robust” is Appellate Review of Courts-Martial? (with Eugene R. Fidell, Elizabeth L. Hillman, Dwight H. Sullivan, Stephen A. Saltzburg and Kate Stith) (2013), Balkinization; http://balkin.blogspot.com/2013/05/how-robust-is-appellatereview-of.html
Abolish the Death Penalty and Supermax, Too: Updating the Ban Against Cruel and Unusual Punishment (with Jonathan Curtis-Resnik), Slate, June 18, 2012; http://www.slate.com/authors.judith_resnik_and_jonathan_curtisresnik.html
War, Terror, and the Federal Courts, Ten Years After 9/11 – Conference (a discussion with Judge Brett Kavanaugh, Martin Lederman, Sarah Cleveland, Curt Bradley, and Stephen Vladeck), from the 2012 Annual Meeting of the Association of American Law Schools, 61 American University Law Review 1253 (2012)
A Collective Collage: Women, the Structure of American Legal Education, and Histories Yet to be Written (with Dennis E. Curtis), 80 University of Missouri Kansas City Law Review 737 (2012)
The Changing Face of Justice: The Visual Vocabulary of Courts is a Transnational Symbol of Government (with Dennis E. Curtis), The Guardian, March 24, 2011; http://www.guardian.co.uk/law/2011/mar/24/changing-face-justice-judith-resnik
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Designing Justice (with Dennis E. Curtis), Los Angeles Daily Journal, January 21, 2011. What Does Justice Look Like? (with Dennis E. Curtis), Slate, January 21, 2011; http://www.slate.com/id/2281277/
From Fool’s Blindfold to the Veil of Ignorance (with Dennis E. Curtis), Yale Law Report (Winter 2011)
Object Lesson: On and Off Her Pedestal (with Dennis E. Curtis), Yale Alumni Magazine (November/December 2010)
Citizenship for the 21st Century: A Conversation with Seyla Benhabib and Judith Resnik, 38 Women Studies Quarterly 271 (Spring/Summer 2010)
Drafting, Lobbying, and Litigating VAWA: National, Local, and Transnational Interventions on Behalf of Women’s Equality, 11 Georgetown Journal of Gender and the Law 557 (2010)
Open the Door and Turn on the Lights, Slate, May 21, 2010; http://www.slate.com/id/2253500/
Judicial Independence, Panel Discussion, Sandra Day O’Connor, Linda Greenhouse, Judith Resnik, Bert Brandenburg, and Viet D. Dinh, Bulletin of the American Academy 29 – 56 (Winter 2009)
There’s a New Lawyer in Town (with Emily Bazelon), Slate, February 9, 2009; http://www.slate.com/id/2210637/
Revival of Justice, Slate, January 6, 2009; http://www.slate.com/id/2208017/
Translocal Transnationalism: Foreign and Domestic Affairs, 102 American Society of International Law Proceedings 214 (2008)
Sitting on Great Judges (with Emily Bazelon), Slate, December 19, 2008; http://www.slate.com/id/2207071/
The Return of Regency (with Allison Tait), The XX Factor, September 11, 2008, guest post; http://www.slate.com/blogs/blogs/xxfactor/archive/2008/09/11/the-returnof-regency.aspx
Courts and Democracy: The Production and Reproduction of Constitutional Conflict in The Courts and Social Policy in the United States (Oxford: Foundation for Law, Justice and Society, 2008); http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1148202
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Moving American Mores: From Women’s Education to Torture, 36 Women Studies Quarterly 339 (Spring/Summer 2008)
When the Justice Department Played Defense, Slate, October 27, 2006; http://www.slate.com/id/2152211/
Borders, Law, and Doors – Opening, Bryn Maw College Convocation, May 2006
Opening the Door: Court Stripping: Unconscionable and Unconstitutional? Slate, February 1, 2006; http://www.slate.com/articles/news_and_politics/jurisprudence/2006/02/opening_ the_door.html
So Long: Changing the Judicial Pension System Could Keep Judges from Staying on the Bench for Too Many Years, July/August Legal Affairs 20 (2005)
One Robe, Two Hats (with Theodore Ruger), New York Times, Op-Ed, Section 4 at 13, July 17, 2005
Looking Back, Looking Forward: One Hundred Years, Concluding Remarks in Women Faculty Forum, Gender Matters: Women and Yale in its Third Century (2004)
The Courts, the Legislature, and the Executive: Separate and Equal? Issues at the Federal Level, 87 Judicature 220 (2004)
Judicial Selection, Independent Jurists, and Life-Tenure (2004); http://www.jurist.org/forum/symposium-jc/resnik.php
At Home and Work, Still a Man’s World, Commentary (with Emily Bazelon), Los Angeles Times, January 2, 2004
Engendering Equality: A View from the United States, 35 The European Lawyer 21, (February 2004)
Supermajority Rule, New York Times, Op-Ed, Section A at 31, June 11, 2003
Testimony Statement submitted for the record, Women in Prison: Seeking Justice Behind Bars, before the U.S. Commission on Civil Rights, March 22, 2019, U.S. Commission on Civil Rights, Women in Prison: Seeking Justice Behind Bars (February 2020), available at https://www.usccr.gov/pubs/2020/02-26-Women-inPrison.pdf
Comments submitted on Proposed Changes to Code of Conduct for U.S. Judges and Judicial Conduct and Disability Rules (with Abbe R. Gluck), submitted to the
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Judicial Conference committees on Codes of Conduct and Judicial Conduct and Disability, November 13, 2018
Comments submitted for the Telephonic Hearing on Proposed Amendments to the Federal Rules of Civil Procedure before the Advisory Committee on Civil Rule of the Judicial Conference of the United States, February 16, 2017
Statement submitted for the record, Women in Detention: The Need for National Reform, Charles Colson Task Force on Federal Corrections Public Hearing, Washington, D.C., March 11, 2015
Statement submitted for the record, Women in Detention: The Need for a National Agenda, Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights, December 9, 2014
The Policies Governing Isolation in U.S. Prisons, Statement submitted for the Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, Reassessing Solitary Confinement II: The Human Rights, Fiscal and Public Safety Consequences, February 25, 2014; http://www.law.yale.edu/documents/pdf/Liman/Liman_Senate_Statement_Reasse ssing_Solitary_Confinement--_Resnik_Metcalf_--_final_Feb_28_2014.pdf
Statement submitted for the record, Oversight of the Bureau of Prisons and CostEffective Strategies for Reducing Recidivism, Hearing before the Senate Judiciary Committee, U.S. Senate, November 13, 2013; http://www.law.yale.edu/documents/pdf/Liman/Senate_Judiciary_Committee_BO P_Oversight_Hearing_Liman_Statement_for_the_Record_
Statement submitted for the record, Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences, Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights, U.S. Senate, June 19, 2012
Courtroom Use: Access to Justice, Effective Judicial Administration and Courtroom Security, Hearing before the Subcommittee on Courts and Competition Policy of the United States Committee on the Judiciary, U.S. House of Representatives, September 24, 2010
Statement submitted for the record, Recommendations on Courthouse Construction, Courtroom Sharing and Enforcing Congressionally Authorized Limits on Size and Cost, Hearing before the Subcommittee on Economic Development, Public Buildings and Emergency Management Committee on Transportation and Infrastructure, U.S. House of Representatives, May 21, 2010
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Statement submitted for the record, Sunshine in Litigation Act: Does Court Secrecy Undermine Public Health and Safety, Hearing before the Subcommittee on Antitrust, Competition Policy and Consumer Rights of the Committee on the Judiciary, 110th Cong. 181, December 11, 2007
Hearings on the Judicial Nomination of John G. Roberts, Jr., to be Chief Justice of the United States, held by the Committee on the Judiciary of the United States Senate, Washington, D.C., September 15, 2005
Hearings on the Judicial Selection before the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, held by the House of Commons, Ottawa, Canada, April 20, 2004
Hearings on the Proposed Amendments to Federal Rule of Civil Procedure 23, held by the Committee on Rules of Practice and Procedure, Judicial Conference of the United States, January 2002
Hearings on the Senate's Role in the Nomination and Confirmation Process: Whose Burden?, held by the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts, 107th Cong. , September 4, 2001, also published in 50 Drake Law Review 539 (2001-02)
Hearings on the Proposed Amendment to Federal Rule of Civil Procedure 23, held by the Committee on the Rules of Practice and Procedure, Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, November 1996
Hearings on the Proposed Long Range Plan of the Judicial Conference of the United States, held by the Committee on Long Range Planning, December 16, 1994
Hearings on the Proposed Changes in the Federal Rules of Civil Procedure, held by the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference, November 1991
Hearings on the Tentative Report of the Federal Courts Study Committee, held by members of the Committee, San Diego, California, January 29, 1990
Hearings on the Proposed Amendments to Rule 63 of the Federal Rules of Civil Procedure, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, January 1990
Hearings on the Confirmation of Robert H. Bork to be an Associate Justice of the United States Supreme Court, held by the Committee on the Judiciary, United States Senate, September 25, 1987
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Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 158 of 189 Page ID2#6:158
Hearings on Proposed Amendments to Rule 52(a) of the Federal Rules of Civil Procedure, held by the Subcommittee on Criminal Justice of the Judiciary Committee of the U.S. House of Representatives, June 26, 1985
Hearings on Proposed Amendments to Rule 68 of the Federal Rules of Civil Procedure, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, 1985
Hearings on Proposals to Amend the Rules Governing Section 2254 Cases in the United States District Courts, and Rules Governing Section 2255 Proceedings in the United States District Courts, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, 1984
Female Offender: 1979-80, Part 1: Hearings before the Subcommittee on Courts, Civil Liberties, and Administration of Justice of the House Committee. on Judiciary, 96th Cong. 59, October 11, 1979
Drug Abuse Treatment: Part 2: Hearings before the Select Committee on Narcotics Abuse and Control, House of Representatives, 96th Cong., July 25, 1978
Honors and Awards Andrew Carnegie Fellowship, 2018-2020
Honorary Doctorate of Laws, University College London, 2018
Visiting Scholar, Max Planck Institute for Procedural Law, Luxembourg, February 2018 Establishment of the Resnik-Curtis Fellowship in Public Interest Law on the 20th
anniversary of the Liman Program at Yale, 2017
Visiting Scholar, Phi Beta Kappa, 2014-2016
Recipient, Arabella Babb Mansfield Award, National Association of Women Lawyers, July 2013
Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (with Dennis E. Curtis) Selected as one of the “Best legal reads of 2011” by The Guardian Recipient, SCRIBES Award from the American Society of Legal Writers, 2012 Recipient, PROSE Award, Excellence in Social Sciences, 2012 PROSE Award, Excellence in Law & Legal Studies, 2012
Resnik, Judith resume tevised 2 April 24, 2020

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 159 of 189 Page ID2#7:159
Selected as an Outstanding Academic Title of the Year by Choice Magazine, January 2012
Recipient, The Order of the Coif Biennial Book Award, January 2014 New York University Alumna of the Month Award, June 2012,
http://www.law.nyu.edu/alumni/almo/pastalmos/2011-12almos/judithresnikjune Elizabeth Hurlock Beckman Award, Awarded to Outstanding Faculty in Higher
Education in the Fields of Psychology or Law, Columbia University, March 2011 Migrations and Mobilities: Citizenship, Borders, and Gender, Selected as an Outstanding
Academic Title of the Year by Choice Magazine, January 2011 Outstanding Scholar of the Year Award 2008, from the Fellows of the American Bar
Foundation Oral History, 2007, Women Trailblazers in the Law Project, American Bar Association
Commission on Women in the Profession, deposited in the Library of Congress, 2009 Convocation Speaker, Bryn Mawr College Commencement, May 2006 Member, American Philosophical Society, elected Spring 2002 Fellow, American Academy of Arts and Sciences, elected Spring 2001 Recipient, Margaret Brent Women Lawyers of Achievement Award, American Bar Association Commission on Women in the Profession, August 1998 Recipient, NYU School of Law, Legal Teaching Award, Spring 1995 Recipient, USC Associates Award for Creativity in Research, Spring 1994 Recipient, Florence K. Murray Award, National Association of Women Judges, Fall 1993 Recipient, “Big Splash Award” from the Program of Women and Men in Society (SWMS), University of Southern California, 1992 Member, Phi Kappa Phi, elected by the USC Chapter, 1991 University Scholar, University of Southern California, 1982-1983 Recipient, Student Bar Association Outstanding Faculty Award, University of Southern California Law Center, 1982-1983
Resnik, Judith resume tevised 2 April 24, 2020

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 160 of 189 Page ID2#8:160
Arthur Garfield Hays Fellow, 1974-1975, New York University
Education Bryn Mawr College, B.A., cum laude, 1972 New York University School of Law, J.D., cum laude, 1975
Bar Memberships Connecticut United States District Courts: District of Connecticut, Southern District of New York, Eastern District of New York United States Court of Appeals for the First, Second, Third, Fourth, Ninth and Eleventh Circuits United States Supreme Court
Selected Litigation United States Supreme Court Of counsel on Brief of Amici Curiae, Law Professors in Support of Petitioners (No. 18622), on Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit, Whole Woman’s Health, et. al. v. Texas Catholic Conference of Bishops (2018) (on the question of standing)
Of counsel on Brief of Amici Curiae, Former Judges, Former Prosecutors, Former Government Officials, Law Professors, and Social Scientists in Support of Respondents (No. 17-312), United States of America v. Sanchez-Gomez 138 S.Ct. 1532 (2018) (on the use of shackles for defendants in federal court)
Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Respondents (Nos. 161436 and 16-1540), Donald J. Trump, et al. v. International Refugee Assistance Project, et al, Donald J. Trump, et al. v. State of Hawaii, et al. (2017), 138 S.Ct. 2392 (2018) (on travel bans)
Of counsel on Brief of Amici Curiae, Constitutional Law, Federal Courts, Citizenship, and Remedies Scholars in Support of Respondent Luis Ramon Morales-Santana (No. 15-1191), Lynch v. Morales-Santana, 136 S.Ct. 2545 (2016) (on citizenship and gender)
Oral Argument and brief presented on behalf of the Respondent Norman Carpenter in Mohawk Industries, Inc. v. Carpenter (No. 08-678, 2009 WL 3169419) (argued October 5), 558 U.S. 100 (2009) (on appealability)
Of counsel on Brief of Law Professors as Amici Curiae, in Support of Respondent Jacob Denedo (No. 08-267, 2009 WL 418793), United States v. Denedo, 556 U.S. 904 (2009) (on jurisdiction)
Resnik, Judith resume tevised 2 April 24, 2020

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 161 of 189 Page ID2#9:161
Of counsel on Brief of Amici Curiae Professors of Constitutional Law and of Federal Jurisdiction, in Support of Petitioner Keith Haywood (No. 07-10374), Haywood v. Drown, 556 U.S. 729 (2009) (on state law and Section 1983)
Of counsel on Brief of Amici Curiae Professors of Constitutional Law and of the Federal Courts, in Support of the Habeas Petitioners Omar and Munaf (Nos. 07394, 06-1666), Munaf v. Geren, 553 U.S. 674 (2008) (on the scope of habeas corpus)
Of counsel on Brief of Professors of Constitutional Law and of the Federal Jurisdiction as Amici Curiae, in Support of Petitioners Boumediene et al. (Nos. 06-394, 06-1196), Boumediene v. Bush, 553 U.S. 723 (2008) (on the scope of habeas corpus)
Brief of Amici Curiae Norman Dorsen, Frank Michelman, Burt Neuborne, Judith Resnik, and David Shapiro, in Support of Petitioner Salim Ahmed Hamdan (No. 05-184), Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (on due process)
Brief of Amici Curiae of Law Professors in Support of Petitioner Paula Jones (No. 951853, 1996 WL48092), Clinton v. Jones, 520 U.S. 681 (1997) (on immunity)
Oral Argument presented on behalf of the Rotary Club of Duarte: Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) (on California public accommodations law and associational rights under the First Amendment)
United States Courts of Appeals Brief of Amici Curiae, Scholars of the Law of Prisons, the Constitution, and the Federal Courts in Support of the Appellants (No. 16-4234), Delores Henry, et al., v. Melody Hulett, et al. (7th Cir, rehearing en banc pending, 2020) (on constitutional rights in prison)
Brief of Amici Curiae of Constitutional Law and Procedure Scholars Judith Resnik and Brian Soucek in Support of Petitioner (No. 16-73801), submitted for the hearing en banc, C.J.L.G. v. Jefferson B. Sessions III (9th Cir., , 880 F.3d 1122 (2019) (on due process, right to counsel, and immigrant children)
Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Plaintiffs-Appellees, (No. 17-17168), Ninth Circuit, State of Hawaii, et al., v. Donald Trump (2017) (on travel bans)
Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Plaintiffs-Appellees, (No.
Resnik, Judith resume tevised 2 April 24, 2020

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 162 of 189 Page ID3#0:162
17-2231 (L), 17-2232, 17-2233, 17-2240 (Consolidated)), Fourth Circuit, International Refugee Assistance Project, et al., Iranian Alliances Across Borders, et al., Eblal Zakzok, et al., v. Donald Trump (2017) (on travel bans)
Of counsel on Brief of Amici Curiae, Constitutional Law Professors in Support of Appellees and Affirmance (No. 17-1351), International Refugee Assistance Project et al. v. Donald J. Trump, et. al. (4th Cir. 2017) (on travel bans)
Appellate Counsel In re San Juan Dupont Plaza Hotel Fire Litigation, 111 F.3d 220 (1st Cir. 1997) (on awards of fees and costs in a mass tort multi-district litigation)
In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 56 F.3d 295 (1st Cir.1995)
In re Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 982 F.2d 603 (1st Cir. 1992)
United States District Court Declaration Regarding Provisional Remedies for Detained Individuals, Money v. Jeffries
(N.D. Ill., Eastern Division, No. 20 cv 2-14, filed April 8, 2020
Of Counsel on Motion for Leave to File Declaration of Correctional Expert Rick Raemisch as Amicus Curiae, Savino et al. v. Hodgson et al. (D. Mass., No. 1:20cv-10617-WGY, granted March 31, 2020) (to provide the court and parties with expert information)
Of Counsel on Unopposed Motion for Leave to File Amicus Curiae Statement of Correctional Expert Rick Raemisch, Coleman v. Newson (E.D. Cal, No. 2:90-CV00520-KJM-DB 2020), Plata v. Newsom (No. C01-1351 JST, N.D. Cal., granted April 2, 2020) (to provide the court and parties with expert information)
Court-appointed trustee in re: MDL-926 Global Breast Implant Settlement, 173 F.Supp.2d 1381 (Judicial Panel on Multidistrict Litigation, N.D. Alabama, N.D. Texas, 1994) (overseeing the court-created “common benefit fund”)
Expert appointed by the district court to assist the Special Master in McLendon v. Continental Group, Inc., 802 F.Supp. 1216 (D.N.J. 1992) (assisting the court in relationship to a settlement in an ERISA class action)
Exhibits, Co-Curator The Remarkable Run of a Political Icon: Justice as a Sign of the Law. Rare Book Exhibition Gallery, Lillian Goldman Law Library, Yale Law School, September– December 2011 (with Dennis E. Curtis, Allison Tait & Michael Widener); http://library.law.yale.edu/justice-sign-law-exhibit
Resnik, Judith resume tevised 2 April 24, 2020

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 163 of 189 Page ID3#1:163 Courts: Representing and Contesting Ideologies of the Public Sphere. Yale Art Gallery, Study Galleries, January – May 2011 (with Dennis E. Curtis)
Selected Media Interview, Women, Judging, Equality, and Constitutional Law, RAI Storia (Italian television) – La Corte Costituzionale e le Donne, Pt. 6, January 2020, https://vimeo.com/377835690 Interview, WNPR – Connecticut Public Radio’s Where We Live, presented by John Dankosky, August 5, 2013; http://wnpr.org/post/connecticuts-criminal-justicesystem Interview, BBC Radio 4’s Law in Action, presented by Joshua Rozenberg, March 12, 2013; http://www.bbc.co.uk/programmes/b01r5ln5 Cameo in Fair Game, directed by Doug Liman, Fall 2010, and panel moderator, discussion of the film with Valerie Plame, Joseph Wilson, Emily Bazelon and Doug Liman, Paris Theatre, New York City, October 5, 2010
Resnik, Judith resume tevised 2 April 24, 2020

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 164 of 189 Page ID #:164
EXHIBIT 10

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 165 of 189 Page ID #:165

1

DECLARATION OF JIMMY THREATT

2

I, Jimmy Threatt, declare as follows:

3

1. I am an active member of the Bar of the State of California and an

4 associate with Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow,

5 a professional corporation, attorneys of record for Petitioners in this action. Except

6 for those matters stated on information and belief, I make this declaration based

7 upon personal knowledge and, if called upon to do so, I could and would so testify.

8

2. I have attempted to arrange legal calls with eight prisoners incarcerated

9 at FCI Lompoc and USP Lompoc who had been identified to my firm by their

10 family members and friends as seeking our representation in this action. I have not

11 spoken with any of them. Although several calls were initially scheduled, they were

12 each abruptly cancelled by the Bureau of Prisons (“BOP”). As of now, there are no

13 legal calls scheduled with any of the eight prisoners. Attached as Exhibit A is

14 a compilation of true and correct copies of my email correspondence with BOP

15 employees.

16

3. On May 12, 2020, I called the main desks of FCI Lompoc and USP

17 Lompoc to schedule legal calls with prisoners. No one answered and I was not

18 granted opportunities to leave voice messages.

19

4. On May 12, 2020, I emailed the publicly listed address for FCI

20 Lompoc and USP Lompoc to schedule legal calls with the following four prisoners:

21 (1) Lonnie Ben, No. 69141-051; (2) Yonnedil Carror Torres, No. 41928-69;

22 (3) Andre Brown, No. 54460-097; and (4) Kanagasabai Kanakeswaran, No.

23 75139-112. That same day I received responses asking about the urgency of each

24 call. I immediately responded that each call was urgent, I would abide by any time

25 limits, and I could make myself available at any time for the calls in question.

26

5. The next day, May 13, I received email responses indicating that due to

27 “lack of information regarding the urgency” of my request to speak with each

28 prisoner, the matters were being referred to the BOP Legal Department.

3649734.2

DECLARATION OF JIMMY THREATT

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 166 of 189 Page ID #:166

1 I immediately responded to indicate that, while I would not divulge privileged

2 information, the calls concerned release options in light of the COVID-19 crisis.

3 That same day, I also submitted requests for legal calls with prisoners (1) Vincent

4 Reed, No. 27173-016, and (2) Vazgen Terpogosyan, No. 77271-112.

5

6. Later on May 13, I received a call from Jennifer Merkle, an attorney

6 with the BOP Legal Department, informing me that a call had been approved with

7 Lonnie Ben.

8

7. At 12:18 A.M. on May 14, I emailed the address for Lompoc to request

9 a legal call with Felix Samuel Garcia, No 46693-298. I have not received

10 a response.

11

8. At 12:21 A.M. on May 14, I emailed the address for Lompoc to request

12 a legal call with Shawn Fears, No 34183-060. I have not received a response.

13

9. Later on May 14, I received email responses indicating that requests for

14 calls with the following prisoners had been approved: (1) Lonnie Ben, (2) Yonnedil

15 Carror Torres, (3) Andre Brown, (4) Kanagasabai Kanakeswaran, (5) Vincent Reed,

16 and (6) Vazgen Terpogosyan. I have not heard anything regarding prisoners Brown

17 or Reed since.

18

10. Shortly thereafter, I received an additional email scheduling a legal call

19 with Yonnedil Carror Torres for 9:00 A.M. on May 19. As to my other outstanding

20 requests for legal calls, the officer could not “tell me when they [the prisoners] will

21 be afforded the legal call.” Later that afternoon, the officer cancelled the call with

22 Torres that had been scheduled just hours earlier: “Per our legal department, I am

23 going to cancel the scheduled legal call [with] the above client [Torres].”

24

11. Also on May 14, an officer called to schedule my call with prisoner

25 Lonnie Ben for 1:00 P.M. later that same day. When I called FCI Lompoc at

26 1:00 P.M., I was told that the call had been cancelled and that it would be

27 rescheduled but was not given any other details.

28

12. I received another call on May 14 scheduling calls for the following

3649734.2

2
DECLARATION OF JIMMY THREATT

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 167 of 189 Page ID #:167

1 morning, May 15, with prisoners (1) Kanagasabai Kanakeswaran and (2) Vazgen

2 Terpogosyan. But shortly later, the same officer called to cancel both because

3 “something came up.”

4

13. At 1:04 P.M. on May 14, I received an email from Jennifer Merkle, an

5 attorney with BOP, informing me that she had been referred thirteen of my requests

6 to speak with prisoners, which would include all of my requests to speak with

7 prisoners at FCI Lompoc, USP Lompoc, and FCI Terminal Island. She stated she

8 would need to assess every request individually and would be in touch as to each

9 separately.

10

14. As I was finalizing this declaration on May 15, I received a second

11 email from Ms. Merkle, asking me to call her so that she and I could “identify [my]

12 specific needs.”

13

I declare under penalty of perjury under the laws of the United States of

14 America that the foregoing is true and correct, and that I executed this declaration

15 on May 15, 2020, at Los Angeles, California.

16

17 Jimmy Threatt
18

19

20

21

22

23

24

25

26

27

28

3649734.2

3
DECLARATION OF JIMMY THREATT

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 168 of 189 Page ID #:168
EXHIBIT A

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 169 of 189 Page ID #:169

Karen M. Minutelli
From: Sent: To: Cc: Subject:
Importance:

Jimmy Threatt Tuesday, May 12, 2020 12:16 PM LOX/ExecAssistant@bop.gov Christopher J. Lee; Naeun Rim Legal Call with Inmate at FCI Lompoc
High

My firm is counsel for Lonnie Ben (Inmate No. 69141-051). We are trying to schedule a call to discuss an urgent legal matter with him. We called the facility this morning, but no one is answering the phone.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 170 of 189 Page ID #:170

Karen M. Minutelli
From: Sent: To: Cc: Subject:

Jimmy Threatt Thursday, May 14, 2020 12:19 AM LOX/ExecAssistant@bop.gov Christopher J. Lee; Naeun Rim Legal Call with Inmate at USP Lompoc

I am writing to schedule a legal call with Felix Samuel Garcia (Inmate No. 46693-298). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 171 of 189 Page ID #:171

Karen M. Minutelli
From: Sent: To: Cc: Subject:

Jimmy Threatt Thursday, May 14, 2020 12:21 AM 'LOX/ExecAssistant@bop.gov' Christopher J. Lee; Naeun Rim Legal Call with Inmate at USP Lompoc

I am writing to schedule a legal call with Shawn Fears (Inmate No. 34183-060). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 172 of 189 Page ID #:172

Karen M. Minutelli
From: Sent: To: Subject:

LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Thursday, May 14, 2020 7:58 AM Jimmy Threatt RE: Request Legal Call with BEN #69141-051 (LOF)

After speaking with our BOP Attorney, a 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales

>>> On 5/13/2020 at 1:30 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Wednesday, May 13, 2020 12:57 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Subject: RE: Request Legal Call with BEN #69141‐051 (LOF)
Due to lack of information regarding the urgency of your request, your request is being sent to the BOP Legal Office for further review and approval. Please be advised this may delay your request for a Legal Call.
>>> On 5/12/2020 at 2:15 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
Thank you, Ms. Morales. To respond to your questions:
1

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 173 of 189 Page ID #:173
1) The matter is urgent and we need to speak with Lonnie Ben as soon as possible. It cannot wait until the facility comes off the enhanced mitigation measures.
2) We do have wide windows of availability; we can make any time work. 3) We understand and will respect the 15 minute time limit.
As a reminder, I can be reached at 650-384-5319, and my colleagues can also be reached on their cell phones (Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707).
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Tuesday, May 12, 2020 1:42 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Cc: Christopher J. Lee <clee@birdmarella.com>; Naeun Rim <nrim@birdmarella.com> Subject: Re: Request Legal Call with BEN #69141‐051 (LOF)
Good Morning,
I have been asked to evaluate your request for a legal call with the above-referenced inmate/your client.
Inmate legal calls usually go through the Unit Team, but our COVID-19 situation has prompted enhanced mitigation measures which has staff focusing on inmate management and enhanced sanitation. In short, FCC Lompoc is not under normal operation, and with matters like these, we want to facilitate legal access while balancing public health safety issues.
As FCC Lompoc is currently in the midst of enhanced mitigation measures to address our COVID-19 situation, such as restricting inmate movement, I need to weigh the necessity of the request/call against the goals of our current measures. Also, inmates at FCC Lompoc currently have access to TRULINCS (Email) and phone calls. The inmate can place you on his phone list and email account. Additionally, they receive legal mail daily.
2

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 174 of 189 Page ID #:174
We provide an occasional inmate attorney call when the inmate demonstrates that communication with attorneys by correspondence, visiting, or normal telephone use is not adequate, and when the inmate or inmate's attorney can demonstrate an imminent court deadline. Thus, we'd like to ask you the following questions:
1. Urgency - can this call wait until we can come off of our enhanced mitigation measures? Is there an imminent court deadline? Are communication by other means not adequate? While I am likely to defer to a fellow officer of the court's representation of urgency, I need to ask as FCC Lompoc staff are currently focused on active inmate management and enhanced sanitation, and minimizing movement and maintaining maximum separation is critical during this time;
2. Assuming urgency, do you have wide windows of date and time when you are willing to receive a call? For example, Wed - Friday from 812 noon? As arranging a call during this time will require moving an inmate from a quarantined or isolation area/cell to a staff office with a phone, there is much coordination that needs to happen to ensure the safety of all concerned. Thus, staff need maximum flexibility on when they can actually make the call;
3. Can the call be of limited duration, like 15 minutes? As there are other urgent calls that need to be accommodated, keeping the calls short is important to facilitating those are deemed necessary. Keep in mind there is extensive disinfecting that needs to happen of the office and phone after each is made.
Thank you for your patience and understanding during this challenging time.
Ms. Morales
>>> On 5/12/2020 at 12:16 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
My firm is counsel for Lonnie Ben (Inmate No. 69141-051). We are trying to schedule a call to discuss an urgent legal matter with him. We called the facility this morning, but no one is answering the phone.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com
3

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 175 of 189 Page ID #:175
Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
4

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 176 of 189 Page ID #:176

Karen M. Minutelli
From: Sent: To: Subject:

LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Thursday, May 14, 2020 7:59 AM Jimmy Threatt RE: Request Legal Call with BROWN #54460-097

After speaking with our BOP Attorney, a 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales

>>> On 5/13/2020 at 1:31 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Wednesday, May 13, 2020 12:56 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Subject: RE: Request Legal Call with BROWN #54460‐097
Due to lack of information regarding the urgency of your request, your request is being sent to the BOP Legal Office for further review and approval. Please be advised this may delay your request for a Legal Call.
>>> On 5/12/2020 at 2:14 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
Thank you, Ms. Morales. To respond to your questions:
1

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 177 of 189 Page ID #:177
1) The matter is urgent and we need to speak with Andre Brown as soon as possible. It cannot wait until the facility comes off the enhanced mitigation measures.
2) We do have wide windows of availability; we can make any time work. 3) We understand and will respect the 15 minute time limit.
As a reminder, I can be reached at 650-384-5319, and my colleagues can also be reached on their cell phones (Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707).
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Tuesday, May 12, 2020 1:41 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Cc: Christopher J. Lee <clee@birdmarella.com>; Naeun Rim <nrim@birdmarella.com> Subject: Re: Request Legal Call with BROWN #54460‐097
Good Morning,
I have been asked to evaluate your request for a legal call with the above-referenced inmate/your client.
Inmate legal calls usually go through the Unit Team, but our COVID-19 situation has prompted enhanced mitigation measures which has staff focusing on inmate management and enhanced sanitation. In short, FCC Lompoc is not under normal operation, and with matters like these, we want to facilitate legal access while balancing public health safety issues.
As FCC Lompoc is currently in the midst of enhanced mitigation measures to address our COVID-19 situation, such as restricting inmate movement, I need to weigh the necessity of the request/call against the goals of our current measures. Also, inmates at FCC Lompoc currently have access to TRULINCS (Email) and phone calls. The inmate can place you on his phone list and email account. Additionally, they receive legal mail daily.
2

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 178 of 189 Page ID #:178
We provide an occasional inmate attorney call when the inmate demonstrates that communication with attorneys by correspondence, visiting, or normal telephone use is not adequate, and when the inmate or inmate's attorney can demonstrate an imminent court deadline. Thus, we'd like to ask you the following questions:
1. Urgency - can this call wait until we can come off of our enhanced mitigation measures? Is there an imminent court deadline? Are communication by other means not adequate? While I am likely to defer to a fellow officer of the court's representation of urgency, I need to ask as FCC Lompoc staff are currently focused on active inmate management and enhanced sanitation, and minimizing movement and maintaining maximum separation is critical during this time;
2. Assuming urgency, do you have wide windows of date and time when you are willing to receive a call? For example, Wed - Friday from 812 noon? As arranging a call during this time will require moving an inmate from a quarantined or isolation area/cell to a staff office with a phone, there is much coordination that needs to happen to ensure the safety of all concerned. Thus, staff need maximum flexibility on when they can actually make the call;
3. Can the call be of limited duration, like 15 minutes? As there are other urgent calls that need to be accommodated, keeping the calls short is important to facilitating those are deemed necessary. Keep in mind there is extensive disinfecting that needs to happen of the office and phone after each is made.
Thank you for your patience and understanding during this challenging time.
Ms. Morales
>>> On 5/12/2020 at 12:11 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
My firm is counsel for Andre Brown (Inmate No. 54460-097). We are trying to schedule a call to discuss an urgent legal matter with him. We called the facility this morning, but no one is answering the phone.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110
3

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 179 of 189 Page ID #:179
E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
4

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 180 of 189 Page ID #:180

Karen M. Minutelli
From: Sent: To: Subject:

LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Thursday, May 14, 2020 10:51 AM Jimmy Threatt Re: Request Legal Call with TERPOGOSYAN #77271-112 (LOM)

A 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales

>>> On 5/13/2020 at 4:03 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
I am writing to schedule a legal call with Vazgen Terpogosyan (Inmate No. 77271-112). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 181 of 189 Page ID #:181

Karen M. Minutelli
From: Sent: To: Subject:

LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Thursday, May 14, 2020 10:53 AM Jimmy Threatt Re: Request Legal Call with REED #27173-016 (LOM)

A 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales

>>> On 5/13/2020 at 4:07 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
I am writing to schedule a legal call with Vincent Reed (Inmate No. 27173-016). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 182 of 189 Page ID #:182

Karen M. Minutelli
From: Sent: To: Subject:

Jennifer Merkle <jmmerkle@bop.gov> Thursday, May 14, 2020 1:04 PM Jimmy Threatt Requests for Legal Calls with Clients / Prospective Clients at FCC Lompoc

Good afternoon,
I think you may recall we spoke on the phone about a legal call for inmate Ben the other day. I have now been assigned 13 of your requests to review. It has become apparent that some of the individuals that you seek to have a legal call with are represented by other counsel as to their release options; therefore, I will be assessing each of these requests individually.
In the meantime, please feel free to send any additional request to me directly for review.
I will be in touch as to each request separately.
Thank you, Jennifer
Jennifer M. Merkle Senior Attorney FCC Victorville PO Box 5400 Adelanto, CA 92301 Phone: 760-530-5440 Fax: 760-530-5103 jennifer.merkle@usdoj.gov jmmerkle@bop.gov
SENSITIVE/PRIVILEGED COMMUNICATION The information contained in this electronic message and any and all accompanying documents constitutes sensitive information. This information is the property of the U.S. Department of Justice. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received this message in error, please notify us immediately at the above number to make arrangements for its return to us.

1

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 183 of 189 Page ID #:183

Karen M. Minutelli
From: Sent: To: Subject:

Jorge A. Garcia <jagarcia@bop.gov> Thursday, May 14, 2020 2:36 PM Jimmy Threatt RE: Request Legal Call with CARROR-TORRES #41928-069 (LOM)

Per our legal department, I am going to cancel the scheduled legal call the above client.
>>> Jimmy Threatt <jthreatt@birdmarella.com> 5/14/2020 10:00 AM >>>
Mr. Garcia,
Thank you for your email. Tuesday, May 19, at 9 am works. Please note that I should be called at 650-3845319. Let me know if I need to do anything else prior to the call.
I have also submitted requests for calls with the inmates listed below, who are also housed at USP Lompoc. Those calls have not been scheduled yet, though the requests pertaining to Brown and Keswaran have also been approved.
1) Andre Brown, 54460-097 2) Kanagasabai Kana Keswaran, 75139-112 3) Vincent Reed, 27173-016 4) Vazgen Terpogosyan, 77271-112 5) Felix Samuel Garcia, 46693-298 6) Shawn Fears, 34182-060

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

From: Jorge A. Garcia <jagarcia@bop.gov> Sent: Thursday, May 14, 2020 8:43 AM To: Jimmy Threatt <jthreatt@birdmarella.com> Subject: RE: Request Legal Call with CARROR‐TORRES #41928‐069 (LOM)
Good morning Sir or Mam,
1

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 184 of 189 Page ID #:184
I've been tasked to set up a legal call with your client. Due to the high volume of requested legal calls, I'm currently scheduling calls for next week 05/18/20 to 05/22/20. The earliest slot I have available would be Tuesday 9 am. If that would work, please advise. If not, please provide 3 dates and times next week you would like the call to take place. Thank You.
After speaking with our BOP Attorney, a 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales
>>> On 5/13/2020 at 1:32 PM, Jimmy Threatt <> wrote:
This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Wednesday, May 13, 2020 12:56 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Subject: RE: Request Legal Call with CARROR‐TORRES #41928‐069 (LOM) Due to lack of information regarding the urgency of your request, your request is being sent to the BOP Legal Office for further review and approval. Please be advised this may delay your request for a Legal Call.
2

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 185 of 189 Page ID #:185
>>> On 5/12/2020 at 2:12 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
Thank you, Ms. Morales. To respond to your questions:
1) The matter is urgent and we need to speak with Yonnedil Carror Torres as soon as possible. It cannot wait until the facility comes off the enhanced mitigation measures.
2) We do have wide windows of availability; we can make any time work. 3) We understand and will respect the 15 minute time limit.
As a reminder, I can be reached at 650-384-5319, and my colleagues can also be reached on their cell phones (Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707).
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Tuesday, May 12, 2020 1:40 PM To: Christopher J. Lee <clee@birdmarella.com>; Jimmy Threatt <jthreatt@birdmarella.com>; Naeun Rim <nrim@birdmarella.com> Subject: Re: Request Legal Call with CARROR‐TORRES #41928‐069 (LOM)
Good Morning,
I have been asked to evaluate your request for a legal call with the above-referenced inmate/your client.
Inmate legal calls usually go through the Unit Team, but our COVID-19 situation has prompted enhanced mitigation measures which has staff focusing on inmate management and enhanced sanitation. In short, FCC Lompoc is not under normal operation, and with matters like these, we want to facilitate legal access while balancing public health safety issues.
As FCC Lompoc is currently in the midst of enhanced mitigation measures to address our COVID-19 situation, such as restricting inmate movement, I need to weigh the necessity of the request/call against the goals of our current measures. Also, inmates at FCC Lompoc currently have access to TRULINCS (Email) and phone
3

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 186 of 189 Page ID #:186
calls. The inmate can place you on his phone list and email account. Additionally, they receive legal mail daily.
We provide an occasional inmate attorney call when the inmate demonstrates that communication with attorneys by correspondence, visiting, or normal telephone use is not adequate, and when the inmate or inmate's attorney can demonstrate an imminent court deadline. Thus, we'd like to ask you the following questions:
1. Urgency - can this call wait until we can come off of our enhanced mitigation measures? Is there an imminent court deadline? Are communication by other means not adequate? While I am likely to defer to a fellow officer of the court's representation of urgency, I need to ask as FCC Lompoc staff are currently focused on active inmate management and enhanced sanitation, and minimizing movement and maintaining maximum separation is critical during this time;
2. Assuming urgency, do you have wide windows of date and time when you are willing to receive a call? For example, Wed - Friday from 812 noon? As arranging a call during this time will require moving an inmate from a quarantined or isolation area/cell to a staff office with a phone, there is much coordination that needs to happen to ensure the safety of all concerned. Thus, staff need maximum flexibility on when they can actually make the call;
3. Can the call be of limited duration, like 15 minutes? As there are other urgent calls that need to be accommodated, keeping the calls short is important to facilitating those are deemed necessary. Keep in mind there is extensive disinfecting that needs to happen of the office and phone after each is made.
Thank you for your patience and understanding during this challenging time.
Ms. Morales
>>> On 5/12/2020 at 12:09 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
My firm is counsel for Yonnedil Carror Torres (Inmate No. 41928-69). We are trying to schedule a call to discuss an urgent legal matter with him. We called the facility this morning, but no one is answering the phone.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
4

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 187 of 189 Page ID #:187
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
5

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 188 of 189 Page ID #:188

Karen M. Minutelli
From: Sent: To: Subject:

Jennifer Merkle <jmmerkle@bop.gov> Friday, May 15, 2020 1:51 PM Jimmy Threatt Re: Requests for Legal Calls with Clients / Prospective Clients at FCC Lompoc

Good afternoon,
I have had a chance to go through all of the emails and research the cases for each of the individuals you are seeking to speak with. Please call me at your convenience so we can over these and identify your specific needs.
Jennifer
Jennifer M. Merkle Senior Attorney FCC Victorville PO Box 5400 Adelanto, CA 92301 Phone: 760-530-5440 Fax: 760-530-5103 jennifer.merkle@usdoj.gov jmmerkle@bop.gov
SENSITIVE/PRIVILEGED COMMUNICATION The information contained in this electronic message and any and all accompanying documents constitutes sensitive information. This information is the property of the U.S. Department of Justice. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received this message in error, please notify us immediately at the above number to make arrangements for its return to us.
>>> Jennifer Merkle 5/14/2020 1:03 PM >>> Good afternoon,
I think you may recall we spoke on the phone about a legal call for inmate Ben the other day. I have now been assigned 13 of your requests to review. It has become apparent that some of the individuals that you seek to have a legal call with are represented by other counsel as to their release options; therefore, I will be assessing each of these requests individually.
In the meantime, please feel free to send any additional request to me directly for review.
I will be in touch as to each request separately.
Thank you, Jennifer
Jennifer M. Merkle Senior Attorney FCC Victorville PO Box 5400 Adelanto, CA 92301
1

Case 2:20-cv-04450-CBM-PVC Document 1 Filed 05/16/20 Page 189 of 189 Page ID #:189
Phone: 760-530-5440 Fax: 760-530-5103 jennifer.merkle@usdoj.gov jmmerkle@bop.gov SENSITIVE/PRIVILEGED COMMUNICATION The information contained in this electronic message and any and all accompanying documents constitutes sensitive information. This information is the property of the U.S. Department of Justice. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received this message in error, please notify us immediately at the above number to make arrangements for its return to us.
2

 Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 1 of 189 Page ID #:226

1 Terry W. Bird – Bar No. 49038 tbird@birdmarella.com
2 Dorothy Wolpert – Bar No. 73213 dwolpert@birdmarella.com
3 *Naeun Rim – Bar No. 263558 nrim@birdmarella.com
4 Shoshana E. Bannett – Bar No. 241977 sbannett@birdmarella.com
5 Christopher J. Lee – Bar No. 322140 clee@birdmarella.com
6 Jimmy Threatt – Bar No. 325317 jthreatt@birdmarella.com
7 BIRD, MARELLA, BOXER, WOLPERT, NESSIM, DROOKS,
8 LINCENBERG & RHOW, P.C. 1875 Century Park East, 23rd Floor
9 Los Angeles, California 90067-2561 Telephone: (310) 201-2100
10 Facsimile: (310) 201-2110

11 Peter J. Eliasberg – Bar No. 189110 peliasberg@aclusocal.org
12 Peter Bibring – Bar No. 223981 pbibring@aclusocal.org
13 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
14 1313 W 8th Street Los Angeles, CA 90017
15 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
16 Attorneys for Plaintiff-Petitioners
17

Donald Specter – Bar No. 83925 dspecter@prisonlaw.com
Sara Norman – Bar No. 189536 snorman@prisonlaw.com
PRISON LAW OFFICE 1917 Fifth Street Berkeley, California 94710 Telephone: (510) 280-2621 Facsimile: (510) 280-2704

18

UNITED STATES DISTRICT COURT

19

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

20 YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL
21 GARCIA; ANDRE BROWN; SHAWN L. FEARS, individually and
22 on behalf of all others similarly situated,

23

Plaintiff-Petitioners,

24

vs.

25 LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL
26 CARVAJAL, in his capacity as Director of the Bureau of Prisons,
27 Defendant-Respondents.
28

CASE NO. 2:20-cv-04450-CBM-PVCx CORRECTED COMPLAINT— CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS Immediate Relief Requested

3652391.1

CORRECTED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 2 of 189 Page ID #:227

1

I.

2

INTRODUCTION

3

1. The Federal Bureau of Prisons (“BOP”) is mismanaging one of the

4 worst public health catastrophes related to COVID-19 anywhere in the country—

5 and at the epicenter of the outbreak are FCI Lompoc and USP Lompoc (collectively

6 “Lompoc”), where more than 1,000 incarcerated persons have tested positive for

7 COVID.

8

2. FCI Lompoc is a low security prison located in Santa Barbara County,

9 California. Just down the road is its sister facility USP Lompoc, which houses

10 medium security individuals and is adjacent to a low security satellite camp.

11 Prisoners are often transferred among these facilities. Lompoc is the site of by far

12 the largest COVID-19 outbreak at a BOP facility. As of the morning of May 15,

13 2020, BOP reports that 1,023 of the 2,680 individuals collectively incarcerated at

14 Lompoc have tested positive for COVID-19.1

15

3. The cases at Lompoc account for more than 65 percent of cases in

16 Santa Barbara County and are so staggering that local officials are asking the State

17 of California to allow them to exclude the numbers from Lompoc in their reopening

18 criteria.2 Shockingly, these numbers, high as they seem, are still underreported.

19 Only the 963 prisoners at FCI Lompoc have undergone a round of mass testing

20 (which was completed weeks past the point where testing could have helped actually

21 prevent the virus from spreading), with 882 reporting positive—meaning that nearly

22

23

24 1 Bureau of Prisons, COVID-19 Update, https://www.bop.gov/coronavirus/ (last visited May 15, 2020).
25 2 Delaney Smith, Santa Barbara County Urges State to Exclude Lompoc Prison
26 Cases from Reopening Criteria, SANTA BARBARA INDEPENDENT, May 11, 2020,
27 https://www.independent.com/2020/05/11/santa-barbara-county-urges-state-toexclude-lompoc-prison-cases-from-reopening-criteria/.
28

3652391.1

2

CORRECTED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 3 of 189 Page ID #:228

1 100% now have the virus.3 There is no clearer indication of how ineffective BOP’s

2 COVID-19 prevention policies have been than their own statistics.

3

4. Plaintiff-Petitioners (“Petitioners”) are forced to bring this class action

4 seeking court intervention to prevent Lompoc from becoming the site of a national

5 tragedy. Respondents Michael Carvajal, the Director of the BOP, and Louis

6 Milusnic, the Warden of Lompoc, have demonstrated that they will not take the

7 measures necessary to prevent the coronavirus from converting more prison

8 sentences into death sentences without court intervention. Public health experts have

9 been clear—to prevent the disease from spreading and reduce the burden on prison

10 medical resources, Respondents must conduct testing in time for isolation to be

11 effective, provide adequate personal protective equipment (“PPE”), properly treat

12 and monitor those who are sick, and most importantly, reduce the prison population

13 to allow for adequate social distancing and sufficient access to medical care.4

14

5. As part of the Coronavirus Aid, Relief, and Economic Security

15 (“CARES”) Act, Congress modified 18 U.S.C. § 3624(c) to enable BOP to do just

16 that—section 12003(b)(2) of the CARES Act gave Respondents and the BOP the

17 broad discretion to allow home confinement and reduce crowding at prisons during

18 the COVID-19 emergency period. Despite this and the guidance of Attorney

19 General William Barr urging the BOP to immediately transfer medically “at-risk”

20 prisoners to home confinement,5 Respondents are refusing to consider home

21

22 3 Tyler Haden, Santa Barbara County Urges State to Exclude Lompoc Prison Cases from Reopening Criteria, SANTA BARBARA INDEPENDENT, May 13, 2020,
23 https://www.independent.com/2020/05/13/lompoc-prison-explodes-with-active-
24 covid-19-cases/ (USP Lompoc, which houses 1717 individuals, has not yet conducted a round of mass testing and is likely to have far more than the 22 cases
25 BOP is currently reporting).

26 4 See, e.g., Exhibit 7 (“Exh. 7”, Declaration of Shamsher Samra, M.D.) ¶¶ 20–22; 27 Exhibit 8 (“Exh. 8”, Declaration of Marc Stern, M.D.) ¶¶ 18–20. 28 5 Office of the Attorney General, Prioritization of Home Confinement as

3652391.1

3

CORRECTED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 4 of 189 Page ID #:229

1 confinement for the vast majority of those incarcerated at Lompoc. At the same

2 time, Respondents have failed to conduct timely testing, provide adequate PPE, or

3 effectively isolate those who are infected and those who have had contact with the

4 infected. The recent round of mass testing was helpful only to prove just how

5 ineffective BOP’s policies have been. For many, the actions and inactions of

6 Respondents will lead to a death sentence. This deliberate indifference amounts to

7 cruel and unusual punishment prohibited by the Eighth Amendment.

8

6. The accounts of the named Petitioners to this action show the inhumane

9 manner in which BOP’s COVID-19 policies are being implemented at Lompoc.

10 When Petitioner Yonnedil Carror Torres, who has asthma, reported symptoms

11 consistent with coronavirus, he was ignored for days and denied medical treatment

12 until he went into respiratory shock and had to be put on a ventilator. For Petitioner

13 Vincent Reed, being “quarantined” after testing positive meant being put in solitary

14 confinement for days without medical care. Petitioner Felix Samuel Garcia is

15 scheduled to be released in the fall—but instead of using the power granted to BOP

16 by Congress under the CARES Act to release him early to home confinement,

17 thereby reducing the risk to him and to others, Respondents are arbitrarily forcing

18 him to spend two more months of his sentence at Lompoc in a hastily-converted

19 warehouse, where he is locked in a cell and not even allowed to shower. Due to the

20 burden on Lompoc’s medical resources from COVID-19-related care, Petitioner

21 Andre Brown cannot get treatment for his prostate cancer. To make matters worse,

22 Lompoc is one of the few BOP facilities that has made the unusual decision to

23 severely restrict access to phone and email for prisoners under the guise of

24

25 Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020), https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf; Office
26 of the Attorney General, Increasing Use of Home Confinement as Institutions Most 27 Affected by COVID-19 (Apr. 3, 2020),
https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf. 28

3652391.1

4

CORRECTED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 5 of 189 Page ID #:230

1 preventing the spread of the virus. Petitioners have barely been able to access

2 phones and internet to ask for help from their lawyers or family members. State jails

3 and most other federal facilities have not implemented similar restrictions on

4 communication with the outside world, and in fact, some state jails are permitting

5 free phone calls due to bans on in-person visiting.6

6

7. Respondents and their ineffectual and unnecessarily cruel policy of

7 isolating positive cases in solitary confinement and unsanitary makeshift living

8 spaces has completely failed to stop or even slow the spread of the virus. Having

9 failed to prevent the outbreak, Respondents cannot now be trusted to provide those

10 who have tested positive with proper medical treatment or to protect those who

11 remain uninfected from infection. Nor are there indications that Respondents are

12 adapting quickly and learning from their mistakes. Somehow, a month and a half

13 since the first BOP prisoner in the country tested positive and a week after the

14 numbers from FCI Lompoc demonstrated how quickly the virus had spread at

15 a nearby facility with shared resources, Lompoc still has not tested the nearly 2000

16 prisoners housed at USP. Moreover, prisoners are still going without basic supplies

17 like soap, hand sanitizer, and face masks.

18

8. Petitioners cannot afford to wait and see if Respondents will be able to

19 handle the treatment of coronavirus any better than they handled the prevention of

20 its spread. Already, the media is reporting that Respondents are mishandling

21 medical treatment in the same manner in which they mishandled prevention.7

22

23 6 Sareen Habeshian, California Inmates Granted Free Calls Following Halted
24 Visitations Amid Coronavirus Fears, KTLA5, Apr. 1, 2020, https://ktla.com/news/california/california-inmates-granted-free-calls-following-
25 halted-visitations-amid-coronavirus-fears/.

26 7 Tyler Haden, Lompoc Prison Explodes with Active COVID-19 Cases, SANTA

27

BARBARA INDEPENDENT, May 13, 2020, https://www.independent.com/2020/05/13/lompoc-prison-explodes-with-active-

28 covid-19-cases/.

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1 Unless immediate action is taken to ensure that Lompoc provides proper medical

2 care to those infected and implements measures to protect those who are not yet

3 infected, including by reducing the size of the incarcerated population, soon,

4 substantially all incarcerated people at Lompoc—many of whom are especially

5 vulnerable due to underlying medical conditions—will be infected with COVID-19.

6 More will die. Dr. Shamsher Samra, a noted physician with ample experience

7 working with incarcerated individuals, delivers an urgent warning: “BOP should

8 take immediate steps to dramatically downsize the population at Lompoc, with

9 priority given to those at high risk of harm due to their age and health status and

10 thus are likely to require a disproportionate amount of medical resources.”8

11

9. Accordingly, Petitioners Yonnedil Carror Torres, Vincent Reed, Felix

12 Samuel Garcia, Andre Brown, and Shawn L. Fears, on behalf of themselves and

13 a class of all persons incarcerated at Lompoc now and in the future, bring this action

14 for declaratory and injunctive relief, for enlargement of custody to include home

15 confinement, and ultimately, if they cannot be held in custody constitutionally, for

16 release.

17

II.

18

PARTIES

19

10. Plaintiff-Petitioner Yonnedil Carror Torres (“Petitioner Torres”) is

20 incarcerated at USP Lompoc. He is 24 years old and has suffered from chronic

21 asthma since he was a child, making him especially vulnerable to complications

22 resulting from COVID-19. On April 24, 2020, Petitioner Torres started feeling

23 seriously ill and developed COVID-19 symptoms including fever, diarrhea, and

24 body aches. For five days, Petitioner Torres asked for medical assistance. For five

25 days, he was ignored. On the sixth day, Petitioner Torres went into acute respiratory

26 shock and collapsed in his cell. Only then was he tested and confirmed to be positive

27

28 8 Exh. 7 ¶ 20 (emphasis added); accord Exh. 8 ¶ 17.

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1 for COVID-19. Petitioner Torres was put into a medically-induced coma, intubated,

2 and put on a ventilator. As a result of his battle with COVID-19, he has suffered

3 severe lung damage. On their most recent phone call, his sister could no longer

4 recognize his voice. Petitioner Torres’s family submitted a submitted a request for

5 compassionate release on his behalf to the Warden of Lompoc on May 11, 2020.

6 They have not received a response.

7

11. Plaintiff-Petitioner Vincent Reed (“Petitioner Reed”) is incarcerated at

8 USP Lompoc. He is 53 years old and has hypertension, making him especially

9 vulnerable to complications resulting from COVID-19. Petitioner Reed’s son has

10 juvenile diabetes, is fully blind, and was recently diagnosed with kidney failure at

11 the age of 30. Petitioner Reed may be the only viable candidate to donate a kidney

12 to his son. Around March 27 or 28, 2020, Petitioner Reed began developing

13 symptoms of COVID-19. On March 30, 2020, he was tested and immediately put

14 into solitary confinement. After Petitioner Reed’s results came back positive, he was

15 left in solitary confinement for days and then transferred to an old and unsanitary

16 housing unit where—along with others who had tested positive—he languished

17 without treatment. On April 14, 2020, Mr. Reed was returned to the general

18 population. He was not tested again for COVID-19 prior to his return. Petitioner

19 Reed submitted a request for compassionate release/reduction in sentence to the

20 Warden of Lompoc on January 7, 2020. His request was rejected.

21

12. Plaintiff-Petitioner Andre Brown (“Petitioner Brown”) is incarcerated

22 at USP Lompoc. He is 55 years old, illiterate, and has learning disabilities. Because

23 Petitioner Brown is illiterate, the communications blackout at Lompoc which

24 severely restricts access to phone and email for prisoners has functionally cut him

25 off from the outside world. His conviction is currently under appeal with the Ninth

26 Circuit Court of Appeals, with argument expected in late 2020. Petitioner Brown has

27 prostate cancer which must be treated with chemotherapy or surgery. He is also

28 asthmatic, suffers from high blood pressure, and has arthritis in both wrists. Through

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1 counsel, Petitioner Brown submitted a request for compassionate release to the

2 Warden of Lompoc on May 13, 2020. He has not received a response.

3

13. Plaintiff-Petitioner Felix Samuel Garcia (“Petitioner Garcia”) is

4 incarcerated at USP Lompoc. He is 36 years old and is set to be transferred to

5 a “halfway house” on July 7, 2020, and released from custody on November 6,

6 2020. Petitioner Garcia was originally housed in a low-security facility at FCI

7 Lompoc. In early May, he tested negative for COVID-19. Afterwards, Petitioner

8 Garcia was abruptly moved to a makeshift cell block set up in a warehouse at USP

9 Lompoc. There, he sits in a small cell with one other prisoner, under total lockdown

10 almost twenty-four hours a day. He is not allowed to shower or change into clean

11 clothes, and has been forced to wet his body with water from his sink in a last resort

12 to maintain personal hygiene. Petitioner Garcia has attempted to submit an

13 application for Compassionate Release and/or Home Confinement to the Warden of

14 Lompoc. However, since the COVID-19 outbreak in Lompoc, those incarcerated

15 have been denied access to the administrative remedy process. Staff have not been

16 accepting the forms required to initiate the process, claiming they cannot do so due

17 to the exigency of the COVID-19 pandemic.

18

14. Plaintiff-Petitioner Sean L. Fears (“Petitioner Fears”) is 50 years old

19 and incarcerated at USP Lompoc. Petitioner Fears lives in a crowded open-plan

20 dormitory with more than a hundred other prisoners, many of whom are sick. He is

21 relying only on a single mask given to him in late April to protect him from

22 infection. Over a month after the outbreak at Lompoc started, he has still not been

23 tested for COVID-19. Petitioner Fears attempted to submit an application for

24 Compassionate Release and/or Home Confinement to the Warden of Lompoc.

25 However, since the COVID-19 outbreak in Lompoc, those incarcerated have been

26 denied access to the administrative remedy process. Staff have not been accepting

27 the forms required to initiate the process, claiming they cannot do so due to the

28 exigency of the COVID-19 pandemic.

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1

15. Respondent Louis Milusnic (“Respondent Milusnic,” “Warden

2 Milusnic,” or “Warden”) is the Warden at Lompoc. As Warden, Respondent

3 Milusnic is responsible for and oversees all day-to-day activity at Lompoc. He is in

4 charge of all aspects of the operations and functions of Lompoc. His responsibilities

5 include ensuring the safety of all in the institution and ensuring that the institution

6 operates in an orderly fashion. Warden Milusnic is aware of and has adopted and

7 enforced policies that leave Petitioners and all those similarly situated exposed to

8 infection, severe illness, and death due to COVID-19. Warden Milusnic has also

9 declined to release people who qualify under BOP and Department of Justice

10 guidance despite having the authority to do so. Warden Milusnic is the immediate

11 and physical custodian responsible for the detention of the Petitioners. He is sued in

12 her official capacity only.

13

16. Respondent Michael Carvajal is the Director of the Federal Bureau of

14 Prisons (“Respondent Carvajal,” “Director Carvajal,” or “Director”). As Director,

15 Respondent Carvajal is responsible for all BOP policies implemented at Lompoc,

16 including those pertaining to resource distribution and factors that BOP facility

17 leadership should consider in determining an incarcerated individual’s eligibility for

18 early release. His responsibilities include ensuring the safety of all in the BOP

19 system and ensuring that institutions operate in an orderly fashion. Director Carvajal

20 is aware of and has adopted and enforced policies that leave Petitioners and all those

21 similarly situated exposed to infection, severe illness, and death due to COVID-19.

22 He is sued in his official capacity only.

23

III.

24

JURISDICTION AND VENUE

25

17. This Court has jurisdiction over this action pursuant to 28 U.S.C.

26 § 2241 because Petitioners seek relief from being held in custody in violation of the

27 Eighth Amendment to the U.S. Constitution, and pursuant to 28 U.S.C.

28 § 1331 for relief from conditions of confinement that are in violation of the Eighth

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1 Amendment.

2

18. The Court has subject-matter jurisdiction over this Petition pursuant to

3 28 U.S.C. § 1331 (federal question), 5 U.S.C. § 702 of the Administrative Procedure

4 Act, 28 U.S.C. § 2241 (habeas corpus) and Article I, § 9, cl. 2 of the U.S.

5 Constitution (Suspension Clause). In addition, the Court has jurisdiction to grant

6 declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201.

7

19. Venue is proper in the Central District of California pursuant to 28

8 U.S.C. § 1391(b)(2) because a substantial part of the events and omissions giving

9 rise to these claims occurred and continues to occur in this district.

10

20. This Court has personal jurisdiction over Warden Milusnic because at

11 all times relevant to this action, she has been employed at Lompoc in Santa Barbara

12 County, California, and all the actions and omissions at issue occurred at Lompoc.

13 This Court has personal jurisdiction over Director Carvajal because at all times

14 relevant to this action, he has set BOP policies and issued guidance that Respondent

15 Milusnic has applied at Lompoc in Santa Barbara County, California.

16

IV.

17

FACTUAL ALLEGATIONS

18 A. The COVID-19 Crisis

19

21. The novel coronavirus that causes COVID-19 has led to a global

20 pandemic. As of May 15, 2020, worldwide there are over 4.3 million reported

21 COVID-19 cases and 297,241 confirmed deaths.9 In the United States, the case

22 count stands at 1,412,121 and the death count at 85,990.10 In California, there are

23

24 9 World Health Org., Coronavirus disease (COVID-19) Pandemic (May 11, 2020),
25 https://www.who.int/emergencies/diseases/novel-coronavirus-2019.

26 10 Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19),

27 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited May 15, 2020).
28

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1 currently 74,936 confirmed cases of coronavirus.11 There are 5,843 individuals who

2 have been hospitalized with confirmed or suspected cases of coronavirus and 3,108

3 fatalities.12 Los Angeles County has been epicenter of the pandemic in California,

4 with 28,644 cases and 1,367 deaths.13

5

22. The virus is known to spread from person to person through respiratory

6 droplets, close personal contact, and from contact with contaminated surfaces and

7 objects.14 Infected people can spread the virus to others even if they are

8 asymptomatic, such that simply avoiding people who are coughing or visibly

9 feverish is insufficient.15

10

23. According to the CDC, people who suffer from certain underlying

11

16
medical conditions face elevated risk. Such conditions include chronic lung

12 disease, moderate to severe asthma, serious heart conditions, hypertension, high

13 blood pressure, chronic kidney disease, liver disease, diabetes, compromised

14 immune systems (such as from cancer treatment, HIV, autoimmune disease, or use

15 of immunosuppressing medication for other conditions), and severe obesity.17 One

16 analysis found mortality rates of 13.2% for patients with cardiovascular disease,

17 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and

18

19 11 California Dep’t of Public Health, COVID-19,

20 https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.asp

21 x (last visited May 15, 2020). 12 Id.
22 13 https://covid19.lacounty.gov/
23 14 Exh. 7 ¶ 4. 24 15 Exh. 7 ¶ 5.

25 16 Ctrs. for Disease Control & Prevention, Groups at Higher Risk for Severe

26 Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/peopleat-higher-risk.html (last visited May 7, 2020).
27 17 Id.
28

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1 7.6% for cancer.18

2

24. The risk of illness or death from COVID-19 is increased for older

3 populations. In a February 29, 2020 preliminary report, individuals age 50-59 had an

4 overall mortality rate of 1.3%, those age 60-69 had an overall 3.6% mortality rate,

5 and those age 70-79 had an 8% mortality rate.19

6

25. In many people, COVID-19 causes fever, cough, and shortness of

7 breath. But for people over the age of fifty or with medical conditions that increase

8 the risk of serious COVID-19 infection, shortness of breath can be severe. Most

9 people in higher-risk categories who develop serious illness will need advanced

10 support. This level of supportive care requires highly specialized equipment that is

11 in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse-to-

12 patient ratios, respiratory therapists, and intensive-care physicians.20

13

26. In patients who do not die, COVID-19 can severely damage lung tissue,

14 requiring an extensive period of rehabilitation, and in some cases, can cause

15 a permanent loss of respiratory capacity. COVID-19 may also target the heart

16 muscle, causing a medical condition called “myocarditis,” or inflammation of the

17 heart muscle. Myocarditis can affect the heart muscle and electrical system,

18 reducing the heart’s ability to pump. This reduction can lead to rapid or abnormal

19 heart rhythms in the short term, and long-term heart failure that limits exercise

20

21

22

18 World Health Org., Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19) at 12 (Feb. 28, 2020), https://www.who.int/docs/default-

23 source/coronaviruse/who- china-joint-mission-on-covid-19-final-report.pdf.

24 19 Worldometer, Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart (May 13, 2020), https://cutt.ly/ytEimUQ (data analysis based on WHO China
25 Joint Mission Report).
26 20 See Exh. 7 ¶ 7 (noting that treatment for vulnerable people infected by 27 COVID-19 may require “significant advanced support” including ventilator
assistance). 28

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1 tolerance and the ability to work.21

2

27. Emerging evidence also suggests that COVID-19 can trigger an

3 over-response of the immune system, further damaging tissues in a cytokine release

4 syndrome that can result in widespread damage to other organs, including

5 permanent injury to the kidneys and neurologic injury. These complications can

6 manifest at an alarming pace. Patients can show the first symptoms of infection in as

7 little as two days after exposure, and their condition can seriously deteriorate in as

8 little as five days.22

9

28. Even some younger and healthier people who contract COVID-19 may

10 require supportive care, which includes supplemental oxygen, positive pressure

11 ventilation, and in extreme cases, extracorporeal mechanical oxygenation.23

12

29. The estimated fatality rate associated with COVID-19 has been

13 estimated to range from 0.1 to 6 percent, meaning COVID-19 may be as much as

14 35 times more fatal than seasonal influenza.24 Although many people who contract

15 COVID-19 will exhibit relatively mild symptoms, the virus will manifest in some

16 20 percent of cases as a “more severe disease requiring medical intervention and

17

18 21 Cynthia Weiss, How does COVID-19 affect the heart?, Mayo Clinic News

19 Network (Apr. 3, 2020), https://newsnetwork.mayoclinic.org/discussion/how-doescovid-19-affect-the-heart/.
20 22 Lenny Bernstein, et al., Coronavirus destroys lungs. But doctors are finding its

21 damage in kidneys, hearts and elsewhere, WASH. POST, Apr. 15, 2020,

22

https://www.washingtonpost.com/health/coronavirus-destroys-lungs-but-doctorsare-finding-its- damage-in-kidneys-hearts-and-elsewhere/2020/04/14/7ff71ee0-

23 7db1-11ea-a3ee- 13e1ae0a3571_story.html; Aria Bendix, A Day-By-Day

24

Breakdown of Coronavirus Symptoms Shows How the Disease COVID-19 Goes from Bad to Worse, BUSINESS INSIDER, Mar. 31, 2020,

25 https://www.businessinsider.com/coronavirus-covid19-day-by-day-symptoms-

26 patients-2020-2. 23 See Exh. 7 ¶ 9.
27 24 Exh. 7 ¶ 6.
28

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1 support.”25

2

30. There is no vaccine against COVID-19 and there is no known

3 medication to prevent or treat infection from COVID-19. Social distancing, or

4 remaining physically separated from known or potentially infected individuals, and

5 vigilant hygiene, including frequently and thoroughly washing hands with soap and

6 water and cleaning and disinfecting high-touch surfaces, are the only known

7 effective measures for protecting people from COVID-19.26 This is especially

8 significant because the virus can spread through people who appear asymptomatic.27

9

31. State and local officials have been taking aggressive action in

10 California. On March 4, in response to then-emerging coronavirus outbreak,

11 Governor Newsom declared a State of Emergency in California,28 doing so even

12 before the President had declared a national emergency.29 That same day, the Los

13 Angeles County Board of Supervisors and Los Angeles County Health Officer

14 declared a local and public health emergency.30 On March 19, 2020, Governor

15 Newsom issued Executive Order No. N-22-20 requiring all California residents to

16 “stay home or at their place of residence” unless the resident works in critical

17 25 Id.
18 26 Id. ¶¶ 11–12.
19 27 Id. ¶ 5. 20 28 Executive Department, State of California, Proclamation of a State of Emergency

21 (Mar. 4, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-

22 Coronavirus-SOE-Proclamation.pdf 29 See Charlie Savage, Trump Declared an Emergency Over Coronavirus. Here’s
23 What It Can Do., N.Y. TIMES, Mar. 13, 2020,

24 https://www.nytimes.com/2020/03/13/us/politics/coronavirus- national-emergencyhtml.
25 30 County of Los Angeles Public Health, County of Los Angeles Declares Local
26 Health Emergency in Response to New Novel Coronavirus Activity (Mar. 4,

27 2020),http://www.publichealth.lacounty.gov/phcommon/public/media/mediapubhpd etail.cfm?prid=2248.
28

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1 infrastructure sectors. 31

2

32. Local officials have also taken extraordinary measures aimed at

3 slowing the virus’s spread. For example, on March 19, Los Angeles Mayor issued

4 a “Safer at Home” order ordering residents of the City of Los Angeles to remain in

5 their homes with lawful exceptions for critical tasks such as securing food and

6 health, safety and medical necessities.32 Los Angeles County Health Officer Muntu

7 Davis signed a “Safer at Home” order the same day, which prohibited all indoor

8 public and private gatherings and all outdoor public and private events within

9 a confined space where at least 10 people were expected to be in attendance at the

10 same time.33 The Los Angeles County Order was strengthened on March 21, 2020,

11 to prohibit all gatherings and events, and will be extended through at least August.34

12 B. Incarcerated People and Staff Are Particularly Vulnerable.

13

33. People in environments with confined spaces such as correctional

14

15 31 Executive Department, State of California, Order No. N-22-20 (Mar. 19, 2020), 16 https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-EO-N-33-20-

17 COVID-19-HEALTH-ORDER.pdf.

18

32 Office of Los Angeles Mayor, The “Safer at Home” Emergency Order Has Been Extended (Mar. 19, 2020), https://www.lamayor.org/mayor-garcetti-angelenos-are-

19 %E2%80%98safer-home-new-emergency-order-stops-non-essential-activities20 outside.
33 County of Los Angeles Public Health, Safer At Home Order for Control of 21 COVID-19 (Mar. 19, 2020),

22 http://file.lacounty.gov/SDSInter/lac/1070029_COVID-19_SaferAtHome_HealthOf ficerOrder_20200319_Signed.pdf.
23 34 Colleen Shalby and Sarah Parvini, L.A. County could keep stay-at-home orders
24 in place well into summer, depending on conditions, LOS ANGELES TIMES, May 12,

25 2020, https://www.latimes.com/california/story/2020-05-12/coronavirus-beachesreopen-los-angeles-county-move-toward-new-normal; County of Los Angeles
26 Public Health, Los Angeles County Announces Two New Deaths (Mar. 23, 2020),

27 http://www.publichealth.lacounty.gov/phcommon/public/media/mediapubhpdetail.cf m?prid=2279.
28

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1 facilities, where people live, eat, and sleep in close proximity, face increased danger

2 of contracting COVID-19, as already evidenced by the rapid spread of the virus in

3 cruise ships35 and nursing homes.36 The close quarters and limited freedom of

4 movement inherent in correctional facilities makes social distancing and other

5 preventive measures difficult or impossible. Moreover, the ability of incarcerated

6 people to adopt preventative measures is completely subject to the dictates of

7 correctional officials who control the housing, schedules, sanitary supplies, and

8 nearly every other aspect of their lives.37

9

34. Correctional facilities increase the risk of rapid spread of an infectious

10 disease, like COVID-19, because of the high numbers of people with chronic, often

11 untreated, illnesses housed in a setting with minimal levels of sanitation, limited

12 access to personal hygiene, limited access to medical care, and no possibility of

13 staying at a distance from others.38

14

15 35 E.g., Jason Hanna & Melissa Alonso, CNN, Coral Princess Docks in Miami With

16

2 Dead and Several Ill of Coronavirus, After Ports Shunned it For Days (Apr. 4, 2020), https://www.cnn.com/2020/04/04/us/coral-princess-cruise-ship-docks-miami-

17 coronavirus/index.html.

18 36 E.g., Stacey Burling, Assume Coronavirus is Already There, Says a Philly Nursing Home Doctor Who Learned the Hard Way, PHILA. INQUIRER, Apr. 3, 2020,
19 https://www.inquirer.com/health/coronavirus/coronavirus-renaissance-nursing-
20 home- philadelphia-20200403.html; see also Suzy Khimm & Laura Strickler, NBC News, Nursing Homes Overwhelmed By Coronavirus, (Apr. 1, 2020),
21 https://www.nbcnews.com/news/us- news/nursing-homes-overwhelmed-
22 coronavirus-it-impossible-us-stop-spread-n1174171.

23 37 See Exh. 8 ¶ 10 (“prisons are congregate enivronments . . . [s]ocial distancing in ways that are recommended by public health officials can be difficult, if not
24 impossible”).

25 38 See generally I.A. Binswanger et al., Prevalence of Chronic Medical Conditions

26 Among Jail and Prison Inmates in the USA Compared With the General Population, 63 J. Epidemiology & Community Health 912 (2009) (concluding that people
27 incarcerated in U.S. jails and prisons had a higher burden of most chronic medical

28 conditions than the general population, even when adjusting for sociodemographic

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1

35. The CDC has issued guidance urging prison administrators to take

2 action to prevent overcrowding of correctional and detention facilities during

3 a community outbreak.39 The CDC guidance emphasizes that social distancing is “a

4 cornerstone of reducing transmission of respiratory disease such as COVID-19.”40 It

5 calls not only for social distancing, but also measures for isolating and quarantining

6 detainees and staff who have (or are suspected of having) COVID- 19 from those

7 who do not have (or presumably do not have) the virus.

8

36. Many correctional facilities find implementation of these preventive

9 strategies challenging without a significant reduction in prison populations.

10

37. As a general matter, correctional facilities frequently lack sufficient

11 medical supplies for the population, and, in times of crisis, medical staff may cease

12 coming to the facilities. Hot water, soap, and paper towels are often in limited

13 supply. Incarcerated people themselves, rather than professional cleaners, are often

14 responsible for cleaning the facilities and often are not given appropriate supplies.

15 This means there are more people who are susceptible to infection all congregated

16 together in a location where fighting the spread of an infection is nearly

17 impossible.41

18

38. For these reasons, correctional public health experts have

19 recommended the release from custody of people most vulnerable to COVID-19.

20 Exercising authority to enlarge custody to include home confinement or release

21 detainees protects the people with the greatest vulnerability to COVID-19 from

22 differences and alcohol consumption).
23 39 Ctrs. for Disease Control and Prevention, Interim Guidance on Management of
24 Coronavirus Disease 2019 (COVID-19) in CORRECTIONAL AND DETENTION
25 FACILITIES (CDC GUIDANCE) (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-
26 detention/guidance-correctional-detention.html.

27 40 Id.

28 41 See Exh. 8 ¶¶ 10–12.

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1 transmission of the virus, and it also allows for greater risk mitigation for all people

2 held or working in a prison, jail, or detention center. Release of the most vulnerable

3 people from custody also reduces the burden on the region’s health-care

4 infrastructure by reducing the likelihood that an overwhelming number of people

5 will become seriously ill from COVID-19 at the same time. As Dr. Samra observes:

6 “BOP should take immediate steps to dramatically downsize the population at

7 Lompoc, with priority given to those at high risk of harm due to their age and health

8 status and thus are likely to require a disproportionate amount of medical

9 resources.”42

10

39. Courts have responded to this urgent call to reduce incarcerated

11 populations. On March 24, 2020, Presiding Judge Kevin C. Brazile of the Superior

12 Court of California, County of Los Angeles, announced an expedited process for the

13 release of individuals jailed while awaiting trial.43 By April 13, 2020, the Los

14 Angeles County jail had released 700 individuals.44 On May 1, 2020, Judge Brazile

15 announced that a further 250 individuals had been released on their own

16 recognizance pursuant to the Court’s continued efforts “to protect public safety

17 while achieving social distancing inside . . . the jail system.”45 Between the onset of

18

19 42 Exh. 7 ¶ 20.

20 43 Los Angeles Superior Court, Superior Court of Los Angeles County Orders Release of County Jail Inmates Awaiting Trial After Justice Partners Reach
21 Agreement (Mar. 24, 2020),

22 http://www.lacourt.org/newsmedia/uploads/142020324174155NR_Justice_Partners _Request_March_24_2020_FINAL.pdf.
23 44 Los Angeles Superior Court, Superior Court of Los Angeles County Continues to
24 Work With Justice Partners On Jail Release of Adults (Apr. 13, 2020),

25 http://www.lacourt.org/newsmedia/uploads/14202041491026NR_Release_Orders_0 4_13_20.pdf.
26 45 Los Angeles Superior Court, More Than 250 People Released So Far From L.A. 27 County Jail System Under Statewide Emergency Bail Schedule (May 1, 2020),

28 http://www.lacourt.org/newsmedia/uploads/14202051114247NR_Bail_Order_05_0

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1 COVID-19 and May 13, 2020, Los Angeles lowered its county jail population from

2 17,076 to 11,813, a reduction of 31%.46 High courts in other states have issued

3 similar orders aimed at reducing state prison populations.47

4

40. Officials in California have echoed the calls to release prisoners and

5 facilitate social distancing. On March 31, 2020, the California Department of

6 Corrections and Rehabilitation announced that it would be transitioning nearly 3,500

7 non-violent inmates to parole or supervised release in order to “mitigate the spread

8 of COVID-19 . . . [and] increase physical distancing, and assist . . . with isolation

9 and quarantine efforts for suspected or positive COVID-19 cases[.]”.48 As of

10 April 13, all of these individuals had been released.49

11

12 1_20(003).pdf.

13 46 Vera Institute of Justice, COVID-19: Criminal Justice Responses to the

14

Coronavirus Pandemic, https://www.vera.org/projects/covid-19-criminal-justiceresponses/covid-19-data (last visited May 15, 2020).

15 47 See, e.g., In re: The Petition of the Pennsylvania Prison Society et al., No. 70

16 MM 2020 (Pa. Apr. 3, 2020), https://law.justia.com/cases/pennsylvania/supremecourt/2020/70- mm-2020.html (Pennsylvania Supreme Court ordered the chief judge
17 of all counties to “immediately” engage in a review of the “current capabilities of

18 their county correctional institutions . . . to address the spread of COVID-19,” “to ensure that the county correctional institutions in their districts address the threat of
19 COVID-19,” as necessary “to identify individuals of incarcerated persons for

20 potential release” and “to undertake efforts to limit the introduction of new inmates into the county prison system.”); Comm. for Pub. Counsel Servs. v. Chief Justice of
21 the Trial Court, No. SJC-12926 (Mass. Apr. 3, 2020),

22 https://www.mass.gov/files/documents/2020/04/03/12926.pdf (Massachusetts Supreme Court ruled that pre-trial detainees not charged with certain violent
23 offenses, as well as incarcerated individuals held on technical probation and parole

24 violations, is entitled to a rebuttable presumption of release).

25 48 California Department of Corrections and Rehabilitation, CDCR Announces Plan to Further Protect Staff and Inmates from the Spread of COVID-19 in State Prisons
26 (Mar. 31, 2020), https://www.cdcr.ca.gov/news/2020/03/31/cdcr-announces-plan-to27 further-protect-staff-and-inmates-from-the-spread-of-covid-19-in-state-prisons/ 28 49 California Department of Corrections and Rehabilitation, Frequently Asked

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1

41. Had Respondents similarly reduced the population at Lompoc as called

2 for by the science, the catastrophe we are faced with today may have been avoided.

3 Because they did not, the outbreak at Lompoc is now out of control. This not only

4 poses an unacceptable risk to the health and safety of the incarcerated, but also

5 burdens local hospitals and thus endangers the broader community. Correctional

6 facilities lack adequate medical facilities to treat serious COVID-19 cases, so an

7 outbreak in a prison could overwhelm local hospitals. And as correctional staff enter

8 and leave the facility, they will carry the virus with them. Like the incarcerated

9 people in the facilities where they work, correctional officers face an increased risk

10 of COVID-19 exposure because they are less able to engage in social distancing and

11 because of the shortage of personal protective equipment, also known as PPE.

12 Indeed, as of May 3, the BOP had reported 498 confirmed past and present

13 infections among its prison staff nationwide.50

14

42. Given these dangers, on an accelerating basis since mid-March of this

15 year, courts in this Circuit and across the country have ordered the release of

16 prisoners and detainees in response to the COVID-19 crisis.51

17

18 Questions for Plan on Expedited Release and Increased Physical Space Within State Prisons, https://www.cdcr.ca.gov/covid19/frequently-asked-questions-for-plan-on-
19 expedited-release-and-increased-physical-space-within-state-prisons/ (last visited

20 May 15, 2020).

21 50 See Fed. Bureau of Prisons, COVID- 19, https://www.bop.gov/coronavirus/ (last visited May 4, 2020).
22 51 See, e.g., Arriaga Reyes. v. Decker, No. 2:20-cv-03600 (D.N.J. Apr. 12, 2020) 23 (ordering five petitions for immediate release of ICE detainees from New Jersey

24 facilities); Basank v. Decker, ---F. Supp.3d---, 2020 WL1481503 (S.D.N.Y. Mar. 26, 2020) (ordering release of ten individuals detained by ICE housed in New Jersey
25 county jails because of preexisting medical conditions); United States v. Rodriguez,

26 No. 03-CR-271 (E.D. Pa. Apr. 1, 2020) (granting motion for compassionate release where the presence of COVID-19, the inmate’s health conditions, the proximity to
27 his release date, and his demonstration of rehabilitation created extraordinary and

28 compelling reasons justifying release); United States v. Colvin, No. 3:19-CR-179,

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1

43. When the dangers of COVID-19 have reached a level where a prison is

2 no longer able to incarcerate its population in constitutional conditions, courts have

3 granted emergency habeas relief for entire classes of prisoners to be evaluated for

4 enlargement of custody on an accelerated basis.52

5 C. Lompoc’s Failure to Slow the Spread of its COVID-19 Outbreak Has

6

Allowed the Virus to Spread Like Wildfire.

7

44. The numbers speak for themselves: Respondents have lost control of

8 the COVID-19 outbreak at Lompoc entirely. There are over 870 positive COVID-19

9 cases at the Lompoc among a population of approximately 2,600, almost twice as

10 many cases as the whole of Santa Barbara County—with a population of almost

11 450,000—combined.

12

45. This sad reality is borne out by the information prisoners have relayed

13 to family members and friends despite Lompoc’s best efforts to keep them silenced.

14 Since April 16, 2020, the prison has cut off most communications with the outside

15 world, forcing prisoners to communicate with their loved ones only through letters

16 and, since around May 9, sporadic five-minute phone calls.

17

46. Counsel for Petitioners have attempted to arrange legal calls with eight

18 2020 WL 1613943 (D. Conn. 2020) (waiving exhaustion requirement and granting
19 motion or compassionate release for vulnerable inmate at FDC Philadelphia where

20 “the risks faced by the Defendant will be minimized by her immediate release to home, where she will quarantine herself”); Coronel v. Decker, ---F. Supp. 3d---,
21 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) (granting release of four detainees

22 with medical conditions that render them particularly vulnerable to severe illness or death if infected by COVID-19).
23 52 Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882, at *10 (N.D. Ohio
24 Apr. 22, 2020), appeal filed, (6th Cir. Apr. 27, 2020) (granting in part emergency

25 motion and ordering FCI Elkton to evaluate all prisoners for enlargement of custody); Martinez-Brooks v. Easter, 3-20-cv-00569-MPS, 2020 WL 2405350, at *32
26 (D. Conn., May 12, 2020) (granting in part temporary restraining order and ordering

27 FCI Danbury to evaluate prisoners with COVID-19 risk factors for home confinement and compassionate release).
28

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1 prisoners incarcerated at FCI Lompoc and USP Lompoc who had been identified to

2 counsel by their family members and friends as seeking representation in this

3 action. Counsel have not spoken with any of them. Although several calls were

4 initially scheduled, they were each abruptly cancelled by the BOP. As of now, there

5 are no legal calls scheduled with any of the eight prisoners.53

6

47. Whatever Respondents may say, the facts demonstrate that they had no

7 strategy at all for addressing the virus. As late as late March and early April, when

8 the world outside had already shuttered schools and businesses for weeks, Lompoc

9 simply ignored sick prisoners and left them in place to infect others, or approached

10 isolation by simply hauling infected people into solitary confinement (the Special

11 Housing Unit, or “SHU”)—something ordinarily done as punishment—to forget

12 about them entirely. Prisoners displaying symptoms of COVID-19 were left in

13 solitary with no medical attention for days at a time.54 This deterred other prisoners

14 from reporting symptoms lest they also be placed into solitary. Afterwards, as the

15 number of positive cases grew, prison authorities began to isolate the infected in

16 a variety of temporary housing units, such as dormitories that had previously been

17 closed due to mold contamination,55 and hastily-converted warehouses.56 Prisoners

18 were also moved from minimum-and-low security facilities with communal

19 dormitories to cells at USP Lompoc’s medium-security facility.57 All of Lompoc’s

20 prisoner housing units were placed on total lockdown, confining prisoners to their

21 cells or dormitories for most of the day. This heavy-handed isolation strategy has

22 been a complete failure, for four reasons.

23

24 53 Exhibit 10 (“Declaration of Jimmy Threatt”) ¶ 2. 25 54 Exhibit 2 (“Exh. 2”, Declaration of Joanna Perales) ¶ 6. 26 55 Id. ¶ 7.

27 56 Exhibit 3 (“Exh. 3”, Declaration of Graciela Zavala-Garcia) ¶ 4.

28 57 Exh. 2 ¶ 7

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1

1. Even with Many Prisoners Moved to Temporary Housing, Social

2

Distancing is Impossible in Lompoc’s Dormitories and Cells

3

48. Hundreds of people held at the Lompoc USP camps and at several units

4 of FCI are housed in open-plan dormitories for anywhere from 150 to 250 prisoners.

5 In these dormitories, there are no internal walls, and the prisoners sleep on bunk

6 beds that are no more than 2-to-3 feet from each other. There is no air conditioning

7 and ventilation is extremely poor. Everyone shares six toilets, six showers, and one

8 water fountain.58 Over a hundred prisoners must stand in line outside to pick up their

9 meals, and 25-30 people stand in line outside a tiny five-foot-by-five-foot room to

10 pick up their medication.

11

49. Things are not much better for the USP Lompoc prisoners who live in

12 cells. Due to the influx of prisoners from the dormitories, tiny single-occupancy

13 cells are now occupied by two prisoners at a time.59 Due to the facility-wide

14 lockdown, prisoners are unable to leave their cells to take a shower or change into

15 clean clothes.

16

2. Unsanitary Conditions in Temporary Housing Units Offer Fertile

17

Ground for the Other Diseases to Spread.

18

50. The conditions in the temporary housing units are appalling and are

19 putting the lives of those who have tested positive in further danger. Unit H—

20 a dormitory that had been closed three years prior due to mold contamination—was

21 reopened filled with prisoners without proper cleaning, and prisoners were forced to

22 sleep on mattresses which the guards had scattered across the dirty floor.60 In the

23 warehouses that had been hastily converted into blocks of double-occupancy cells,

24 prisoners were not permitted to leave their cells to shower, and were not given clean

25
26 58 See Exhibit 5 (“Exh. 5”, Declaration of Nema Zayed Fears) ¶ 4. 59 Exhibit 1 (“Exh. 1”, Declaration of Kiara Carror) ¶ 5.
27 60 Exh. 3 ¶ 5.
28

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1 clothes.61

2

3. The Frequent Movement of Prisoners Combined with Lack of

3

Adequate Testing Is Accelerating the Spread of the Virus.

4

51. As discussed supra, Lompoc’s heavy-handed isolation strategy has

5 resulted in a large numbers of prisoners moving from minimum and low security

6 dormitories to temporary housing units and prison cells. In a belated effort to

7 segregate Lompoc’s infected population from its healthy and recovered population,

8 Respondents are moving inmates back and forth between housing units, transferring

9 them from one place to another when they are sick, and then either sending them

10 back or transferring them to yet another place when they are deemed “recovered.”

11

52. Due to Respondents’ inadequate testing policies, their isolation strategy

12 has been rendered completely ineffectual. Over a month since its outbreak initially

13 started, Lompoc still does not have the capacity to fully test its entire population.62

14 Instead, Respondents do not test prisoners at USP Lompoc until they display

15 symptoms,63 and sometimes not until several days after that, when their health has

16 already deteriorated precipitously.64 In addition, prisoners are not re-tested and

17 confirmed to be negative before being returned to housing units meant to be

18 populated with non-infected prisoners, a practice Dr. Samra explicitly cites as

19 “problematic.”65 Some prisoners have simply been never tested at all.66

20

21 61 Id. ¶ 7.

22 62 Taylor Hadsen, Lompoc Prison Explodes with Active COVID-19 Cases, SANTA BARBARA INDEPENDENT, May 13, 2020,
23 https://www.independent.com/2020/05/13/lompoc-prison-explodes-with-active-
24 covid-19-cases/.
25 63 Exh. 2 ¶ 6. 26 64 Exh. 1 ¶ 8.
65 Exh. 2 ¶ 9; Exh. 7 ¶ 16. 27
66 Exh. 5 ¶ 6. 28

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1

53. Infected individuals can spread COVID-19 even when they are

2 completely asymptomatic.67 As a result, the lack of asymptomatic testing and re-

3 entry testing means that Lompoc is likely allowing infected prisoners to remain with

4 healthy populations and spread the virus, and then allowing prisoners who are not

5 fully recovered but asymptomatic to return to those populations and spread the virus

6 again.

7

4. Lompoc’s Inadequate Efforts at Isolation Ignore Other

8

Fundamental Areas of Infection Prevention.

9

54. As Lompoc isolates its prisoners in crowded, unsanitary confines, it has

10 failed to take any of the most basic measures necessary to ensure that the virus does

11 not spread in these confines unabated. Since the outbreak started, Lompoc has

12 distributed only one face mask to prisoners, who have been forced to reuse it

13 indefinitely.68 Not only do prisoners not have access to hand sanitizer, there are

14 often shortages of soap.69 Due to the total lockdown, many prisoners are not even

15 able to use the shower.70 Given that the pervasive lack of testing at USP Lompoc

16 likely means that even “healthy” housing units have at least a few infected prisoners,

17 this lack of baseline protective measures more or less ensures that those few will

18 eventually becoming many—as the alarming rate of growth in positive cases at

19 Lompoc is demonstrating.

20 D. Lompoc Is Incapable of Providing Adequate Medical Care for

21

COVID-19 Patients, Posing an Unconstitutional Threat Both to the

22

Incarcerated and to the Local Community.

23

55. Providing adequate medical care in the face of an outbreak of this size

24

25 67 Exh. 7 ¶ 16.
26 68 See Exh. 5 ¶ 5; Exh. 3 ¶ 6. 69 Exh. 3 ¶ 6; Exh. 2 ¶¶ 8, 10.
27 70 Exh. 3 ¶ 5; Exh. 2 ¶ 8.
28

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1 would be challenging for any community. For a prison like Lompoc, it is an

2 impossibility. The medical facilities at Lompoc consist of only “a small medical bay

3 capable of caring for a few patients.”71 BOP claims that Lompoc’s medical

4 capabilities have been supplemented with a newly-constructed Hospital Care Unit

5 (“HCU”). In reality, the 20-bed HCU—yet another converted warehouse—has been

6 little more than an exercise in public relations: the HCU lacks any ventilators, and is

7 “not properly equipped to handle serious COVID-19 cases.”72 BOP has not yet

8 actually staffed the HCA with doctors and nurses, and local health officials have

9 remarked that as of May 8, it was “unclear whether the [HCU] is in fact

10 operational.”73 In lieu of adequate care —rendered impossible due to a serious lack

11 of medical resources—prison authorities at Lompoc have adopted a chilling

12 indifference towards those affected by COVID-19.

13

56. Petitioner Yonnedil Carror Torres shares a tiny, single-occupancy cell

14 with a cellmate at USP Lompoc.74 Petitioner Torres suffers from chronic asthma,

15 which makes him especially vulnerable to COVID-19.75 On April 24, 2020, he

16 wrote to his family that he was feeling very sick and was concerned that he may

17 have COVID-19.76 Six days later, Petitioner Torres’s family received a letter from

18

19 71 Taylor Hayden, Inmates and Families Panic as Lompoc Prison Goes Into Lockdown, SANTA BARBARA INDEPENDENT, Apr. 22, 2020,
20 https://www.independent.com/2020/04/22/inmates-and-families-panic-as-lompoc-
21 prison-goes-into-lockdown/

22 72 Taylor Hayden, Lompoc Prison Explodes with Active COVID-19 Cases, SANTA BARBARA INDEPENDENT, May 13, 2020,
23 https://www.independent.com/2020/05/13/lompoc-prison-explodes-with-active-
24 covid-19-cases/.
25 73 Id. 26 74 Exh. 1 ¶ 5.
75 Id. ¶ 3. 27
76 Id. ¶ 6. 28

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1 his cellmate saying that he had went into acute respiratory failure and collapsed in

2 his cell.77 Mr. Torres had suffered from fever, diarrhea, and body aches, and had

3 been asking the guards for medical assistance for five days, but was completely

4 ignored.78 He was only taken to the hospital after every prisoner in his block began

5 to bang on their cell doors in unison to demand that he be taken care of.79 At the

6 hospital, he was put into a medically-induced coma, intubated, and put on

7 a ventilator.80 Mr. Torres suffered serious lung damage from COVID-19 which has

8 severely deteriorated his lung capacity.81

9

57. The story of Mr. Torres is not an isolated incident but part of a larger

10 pattern of deliberate indifference to that shocks the conscience: at Lompoc, medical

11 care is now “limited or nonexistent[,]”82 and prisoners with COVID-19 are not

12 tested or treated until they hit “rock bottom.”83 Even when they test positive, they

13 are not immediately isolated from other prisoners, sometimes being left in

14 dormitories housing approximately 100 people for as long as 14 days.84

15

58. Even when Respondents actually identify COVID-19 patients, the

16 treatment they provide resembles prison discipline more than medical care. On

17 March 27 or 28, 2020, Petitioner Reed began exhibiting symptoms of COVID-19.85

18 Respondents waited until March 30, 2020to test him, and immediately placed him in

19

20 77 Id. ¶ 7.

21 78 Id.

22 79 Id. ¶ 8.

23 80 Id.

24 81 Id. ¶ 10.

25 82 Exhibit 6 (“Exh. 6”, Declaration of Darwin P. Roberts) ¶ 7.
26 83 Id. ¶ 11. 84 Exh. 6 ¶¶ 7-8.
27 85 Exh. 2 ¶ 5.
28

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1 solitary confinement while they awaited results.86 On March 31, 2020, Petitioner

2 Reed received a temperature and symptom check from a doctor.87 After that,

3 Respondents left him to languish in solitary confinement, and did not allow him to

4 see a doctor again until April 7, 2020.88 Respondents’ approach of throwing people

5 like Mr. Reed into solitary confinement when they display COVID-19 symptoms

6 has incentivized prisoners at Lompoc to hide symptoms, even when they feel sick.89

7

59. As Dr. Samra notes, “the allegations” “show[] that virtually no effort is

8 being made at Lompoc to monitor or treat prisoners, with staff waiting until the last

9 minute to intervene,” and also has significant ripple effects on even regular medical

10 care for prisoners with conditions unrelated to COVID-19.90 This is precisely what

11 is happening inside Lompoc, as prison staff have stopped accepting requests for

12 medical care from prisoners since the outbreak started.91 As a result, Petitioner

13 Brown—who requires chemotherapy or surgery to treat his prostate cancer—and

14 others similarly situated have been rendered unable to obtain the care they need to

15 survive.92

16

60. As the outbreak at Lompoc rages on and the prison’s medical resources

17 deplete further still, the risk of infection to staff who go home to the community will

18 continue to rise. Every prisoner at a local hospital, in turn, must be guarded 24 hours

19 a day by two correctional officers on eight-hour shifts, meaning each of these

20 officers are returning to their homes and surrounding communities after long-term

21

22 86 Id. ¶ 6.

23 87 Id.

24 88 Id.

25 89 Id. ¶ 6.
26 90 Exh. 7 ¶¶ 18, 21. 91 Exh. 5 ¶ 7.
27 92 See Exhibit 4 (Declaration of Verna Wefald) ¶ 6
28

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1 exposure to coronavirus patients.93

2

61. The only solution is to reduce the prison population to the point where

3 Lompoc’s medical resources become sufficient to provide adequate care for those

4 who remain.

5 E. The Efforts of the Bureau of Prisons Are Inadequate.

6

62. The BOP has failed to respond effectively to the COVID-19 pandemic.

7 The BOP failed to anticipate and prepare for the magnitude of the threat that

8 COVID-19 poses to its own staff and the people it detains; it then failed to respond

9 in any meaningful way to initial signs of uncontrolled outbreaks at several of its

10 facilities across the country, including Lompoc; and it has continued to fail to

11 implement even the baseline measures that would assure the safety of its own staff,

12 of Petitioners and their fellow class members and others incarcerated by the BOP,

13 and of the communities into which staff and others travel on a daily basis.

14

63. The BOP’s preparations were inadequate from the start. Initial

15 guidance from the BOP was not issued until March 9, and it addressed only the

16 possibility of telework for some employees at an agency where the vast majority of

17 workers must physically appear at facilities to do their jobs, and it mentioned

18 restrictions only for people who had traveled to already-impacted countries.94

19

64. Moreover, the BOP did not make any changes to protocols that call for

20 prisoners to purchase their own cleaning supplies from commissary—preventing

21 many indigent and poor prisoners from being able to buy those supplies—and for

22 them to maintain responsibility for cleaning and sanitizing their spaces (whether

23 they have supplies or not).95

24 93 Id.
25 94 See Federal Bureau of Prisons, Coronavirus Disease 2019 (COVID-19):
26 Screening and Leave Guidance (May 9, 2020),

27 https://cdn.govexec.com/media/gbc/docs/pdfs_edit/031020cb.pdf.

28 95 See, e.g., Federal Bureau of Prisons, Inmate Information Handbook for FCI

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1

65. In fact, as late as March 26—weeks after many cities and states had

2 closed restaurants and non-essential businesses, restricted travel, and ordered people

3 to shelter in place—the BOP Director announced that the BOP had merely taken an

4 inventory of soap, rather than taken steps to distribute it at no cost or even at

5 a reduced cost.96

6

66. Among other failures that contributed to spread at BOP facilities,

7 officers reported that even as of late March, they were given only gloves—not

8 masks, face shields, or other PPE—when interacting with prisoners sick enough to

9 require transport to the hospital.97 Those same officers were ordered back to the job

10 in defiance of CDC guidance that called for self-isolation by correctional staff who

11 had been exposed.98

12

67. Unicor, an entity that runs prisoner work programs for the BOP,

13 continued operating throughout the pandemic and did not began distributing masks

14 to prisoner workers and correctional officers until about April 2, 2020.99

15

16 Elkton, Ohio (Nov. 10, 2012), https://www.bop.gov/locations/institutions/elk/ELK_aohandbook.pdf.
17 96 That day the BOP Director issued a statement that “all cleaning, sanitation, and 18 medical supplies have been inventoried. Ample supplies are on hand and ready to be
19 distributed or moved to any facility as deemed necessary.” Federal Bureau of Prisons, Statement from BOP Director (Mar. 26, 2020),
20 https://www.bop.gov/resources/news/20200326_statement_from_director.jsp.

21 97 Joseph Neff & Keri Blakinger, The Marshall Project, Federal Prisons Agency

22

“Put Staff in Harm’s Way” of Coronavirus: Orders at Oakdale in Louisiana Help Explain COVID-19 Spread (Apr. 3, 2020),

23 https://www.themarshallproject.org/2020/04/03/federal-prisons-agency- put-staff-in-

24 harm-s-way-of-coronavirus. 98 Id.
25 99 Cary Aspinwall, Keri Blakinger, & Joseph Neff, The Marshall Project, Federal
26 Prison Factories Kept Running as Coronavirus Spread (Apr. 10, 2020),

27 https://www.themarshallproject.org/2020/04/10/federal-prison-factories-keptrunning-as- coronavirus-spread.
28

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1

68. Across facilities, the BOP has been “scrambling” to address staffing

2 and resource needs. Despite this, the BOP has continued to limit the number of

3 contractors who can supply PPE, does not have enough tests, and has been sued by

4 its own staff for requiring them to work in hazardous working conditions.100

5

69. When the BOP loses control at a facility, dozens of prisoners must go

6 to local hospitals, straining the local healthcare infrastructure, as well.Even those

7 figures are almost certainly an undercount. The BOP has repeatedly understated the

8 scope of the problem and refused to take steps to assess the situation transparently.

9 For example, the BOP has been artificially reducing their number of reported

10 positive cases by classifying individuals who previously tested positive for

11 COVID-19 but no longer showing symptoms as “recovered” and removing them

12 from the count of positive cases, without re-testing them to confirm that the virus is

13 no longer present in their bodies.101

14

70. BOP’s under-reporting of the outbreak at FCI Elkton provides another

15 stark example of their lack of transparency. As of April 6, the BOP had reported

16 eight prisoners and one staff had tested positive at FCI Elkton.102 Press accounts,

17 however, reported that medical staffing had fallen to fifty percent of capacity, and

18 that three prisoners had already died as of April 6.103 The full scope of the problem

19 did not become clear until a federal judge ordered the facility to increase testing,

20
21 100 Luke Barr, ABC News, Federal Prisons Facing Shortages of Resources Amid Coronavirus Outbreak (Apr. 1, 2020), https://abcnews.go.com/Health/federal-
22 prisons-facing-shortages-resources- amid-coronavirus-outbreak/story?id=69920966.

23 101 A “problematic” practice according to Dr. Samra. Exh. 7 ¶ 16.

24 102 Id.

25 103 WKYC, Ohio Gov. Mike DeWine Authorized Ohio National Guard to Assist Elkton Prison (Apr. 6, 2020),
26 https://www.wkyc.com/article/news/health/coronavirus/ohio-gov-mike-dewine27 authorizes-ohio-national-guard-to-assist-elkton-prison/95-d620f3c6-c560-486f-
9eac- ebce7c09d4e7. 28

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1 after the BOP admitted that it only had 55 tests on hand for a facility of more than

2 2,400 prisoners.104

3

71. Conditions had already deteriorated so thoroughly that Ohio Governor

4 Mike DeWine called in the state’s National Guard to FCI Elkton, a federal

5 prison.105_bookmark60 At the press conference announcing that decision, Governor

6 DeWine called on the BOP to stop sending new prisoners to Elkton.106 And the

7 accuracy of the BOP’s reporting of COVID-19 cases in Elkton is in doubt.107

8

72. Ultimately, the U.S. District Court for the Northern District of Ohio

9 ordered enlargement of custody for medically vulnerable prisoners at FCI Elkton

10 pending resolution of a class habeas petition on the merits, because of the outbreak

11 already raging at the facility.108

12

13

104 Cleveland.com, Judge grills federal prisons lawyer on lack of coronavirus tests at Ohio facility in wake of Trump’s claim that ‘anybody’ can get tested (Apr. 18,

14 2020), https://www.cleveland.com/court-justice/2020/04/judge-grills-federal-

15

prisons-lawyer-on-lack-of-coronavirus-tests-at-ohio-facility-in-wake-of-trumpsclaim-that-anybody-can-get-tested.html.

16 105 WKYC, Ohio Gov. Mike DeWine Authorized Ohio National Guard to Assist

17 Elkton Prison (Apr. 6, 2020),

18

https://www.wkyc.com/article/news/health/coronavirus/ohio-gov-mike-dewineauthorizes-ohio-national-guard-to-assist-elkton-prison/95-d620f3c6-c560-486f-

19 9eac- ebce7c09d4e7.

20 106 Cory Shaffer, Cleveland.com, Ohio National Guard Will Assist With Response at Elkton Federal Prison, Cleveland.com (Apr. 6, 2020),
21 https://www.cleveland.com/coronavirus/2020/04/ohio-national-guard-will-assist-
22 with-coronavirus-response-at-elkton-federal-prison.html; see also Brandon Brown, WFMJ, Sen. Portman Urges Prisoners Not to be Transferred to FCI Elkton (Apr. 6,
23 2020), https://www.wfmj.com/story/41979544/sen-portman-urges-prisoners-not-be-
24 transferred-to-fci-elkton.

25 107 WKBN, Elkton Union President Reports Different COVID-19 Stats Than Federal Bureau of Prisons (Apr. 9, 2020),
26 https://www.wkbn.com/news/coronavirus/elkton-union-president-reports-different27 covid-19-stats-than-federal-bureau-of-prisons/. 28 108 Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882, at *10 (N.D. Ohio

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1

73. Such conditions at numerous facilities across the country have led BOP

2 employees, including corrections officers, to file a complaint with the Occupational

3 Safety and Health Administration (OSHA) alleging unsafe conditions at numerous

4 federal prisons nationwide, including Lompoc. Among other things, the officers’

5 OSHA complaint points to the BOP having “directed staff through the Bureau of

6 Prisons who have come in contact with, or been in close proximity to, prisoners who

7 show or have shown symptoms of COVID-19, to report to work and not be

8 self-quarantined for 14 days per the CDC guidelines.” It also complains of the BOP

9 having failed to undertake any workplace or administrative controls to address

10 transmission, to require social distancing or other measures in the CDC guidance, or

11 to provide sufficient PPE.109

12

74. In apparent response, the BOP released a short document titled

13 “Correcting Myths and Misinformation about BOP and COVID-19.”110 In

14 responding to the assertion that staff who had been in contact with prisoners who

15 showed symptoms of COVID-19 still had to come to work, the BOP simply

16 confirmed that such employees were required to come to work, with masks.111

17 18 Apr. 22, 2020).
109 See U.S. Dep’t of Labor, Notice of Alleged Safety or Health Hazards (March 31, 19 2020),

20 https://www.afge.org/globalassets/documents/generalreports/coronavirus/4/osha-7form-national-complaint.pdf.
21 110 See Fed. Bureau of Prisons, Correcting Myths and Misinformation About BOP
22 And COVID-19 (Apr. 11, 2020),

23 https://www.bop.gov/coronavirus/docs/correcting_myths_and_misinformation_bop_ covid19.pdf.
24 111 Id. at 3 (“In keeping with CDC ‘Guidance for Safety Practices for Critical 25 Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or

26 Confirmed COVID-19,’ the BOP performs pre-screening of all employees reporting to work and requires exposed workers to wear a mask for 14 days after last
27 exposure. They are also expected to perform regular self-monitoring for symptoms,

28 practice social distancing and to disinfect and clean their work spaces. Anyone who

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1

75. CARES Act, signed into law on March 27, makes funding available for

2 federal prisons to purchase PPE and test kits for COVID-19 in addition to

3 authorizing the Department of Justice to lengthen the maximum amount of time that

4 a prisoner can be placed in home confinement during the pandemic, as discussed

5 above.112 Acting under that authority, Attorney General Barr made a finding that

6 emergency conditions are materially affecting the functioning of the BOP, and on

7 April 3 he directed Respondent Carvajal to review prisoners with COVID-19 risk

8 factors to determine their eligibility for home confinement, stating that the BOP’s

9 efforts to prevent COVID-19 from entering BOP facilities and infecting prisoners

10 have “not been perfectly successful at all institutions.”113

11

76. Attorney General Barr also released guidance in the form of a series of

12 letters suggesting that some BOP prisoners should be released.114 Those letters

13 merely encourage the BOP to exercise discretion that it has declined to use, and they

14 do not actually direct the release of categories of prisoners, much less on a scale that

15 would allow for safe social distancing in the facilities or with the speed that the

16 health crisis requires. Of the relatively small number of people released, the BOP

17 has not reported the number who subsequently died.

18

77. The BOP’s April 22 guidance gave wardens virtually unchecked

19 discretion to deny a request for release and imposes unnecessary and arbitrary

20 barriers on prisoners seeking release. For example, pursuant to the BOP’s guidance

21 from April 22: (i) prisoners must have had no disciplinary infractions of any kind for

22 develops signs or symptoms of illness are sent home.”).
23 112 CARES Act, Pub. L. No. 116-136, § 12003(b), 134 Stat. 281 (2020).
24 113 Office of the Attorney General, Increasing Use of Home Confinement at 25 Institutions Most Affected by COVID-10 (Apr. 3, 2020),

26 https://www.justice.gov/file/1266661/download.

27

114 See US Dep’t of Justice, Memoranda For Director of Bureau Prisons from Attorney General Barr (Mar. 26, 2020 & Apr. 3, 2020),

28 https://www.justice.gov/coronavirus.

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1 12 months; (ii) prisoners must provide verification that they would have a lower risk

2 of contracting COVID-19 outside the prison than inside of it, and, (iii) prisoners

3 with any on-going medical care must show their medical needs can be met outside

4 the prison, and that they have a 90-day supply of prescribed medications. After

5 reports of positive cases continued to explode, on May 8, 2020, BOP amended this

6 guidance to relax a few criteria, but it continues to be far more restrictive than the

7 recommendations proposed by Attorney General Barr.

8

78. The BOP’s April 22 guidance gives wardens virtually unchecked

9 discretion to deny a request for release and imposes unnecessary and impractical

10 barriers on prisoners seeking release. For example, pursuant to the BOP’s guidance:

11 (i) prisoners must have had no disciplinary infractions of any kind for 12 months;

12 (ii) prisoners must provide verification that they would have a lower risk of

13 contracting COVID-19 outside the prison than inside of it, and, (iii) prisoners with

14 any on-going medical care must show their medical needs can be met outside the

15 prison, and that they have a 90-day supply of prescribed medications.

16

79. The appalling conditions of BOP facilities across the country, and the

17 BOP’s failures to address the constitutional rights of prisoners in its care, have

18 forced federal courts to address BOP failures in a large number of individual cases

19 seeking compassionate release115; bail pending appeal, trial, or sentencing116;

20 115 E.g., United States v. Smith, No. 12-cr-133, 2020 WL 1849748 (S.D.N.Y. Apr.
21 13, 2020) (granting release; finding exhaustion waivable and waived); United States

22 v. Zukerman, ---F.Supp.3d ---, 2020 WL1659880 (S.D.N.Y. Apr. 3, 2020) (waiving exhaustion and granting immediate compassionate release in light of COVID-19 to
23 defendant convicted in multi-million dollar fraud scheme); United States v. Sawicz,

24 No. 08-cr-287, 2020 WL1815851 (E.D.N.Y. Apr. 10, 2020) (releasing childpornography offender); United States v. Oreste, No. 14-cr-20349 (S.D. Fla. Apr. 6,
25 2020).

26 116 E.g., United States v. Chavol, No. 20-50075 (9th Cir. Apr. 2, 2020) (stipulation

27 in a FRAP(9) appeal to release on conditions); United States v. Hector, No. 2:18-cr3-2, ECF 748 (W.D. Va. Mar. 27, 2020).
28

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1 delayed self-surrender117; writs of habeas corpus118; class-wide relief for groups of

2 prisoners119; and furloughs.120

3

80. As noted, the Northern District of Ohio ordered FCI Elkton to release

4 potentially hundreds of medically vulnerable prisoners who face a greater threat

5 from COVID-19. It did this because Elkton had “altogether failed” to follow CDC

6 guidance for correctional settings, and that the measures were “necessary to stop the

7 spread of the virus and save lives.”121 Similarly, the District of Connecticut has

8 ordered FCI Danbury to evaluate and release medically vulnerable inmates on an

9 accelerated basis.122

10

11

12

13

14 117 United States v. Roeder, No. 20-1682, ___ F. App’x ___, 2020 WL 1545872 (3d

15

Cir. Apr. 1, 2020) (reversing district court’s denial of defendant’s motion to delay execution of his sentence because of the COVID-19 pandemic); United States v.

16 Garlock, No. 18-CR-418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020)

17

(observing that “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be

18 avoided”); United States v. Matthaei, No. 19-CV-243, 2020 WL 1443227, at *1 (D.

19 Idaho Mar. 16, 2020) (extending self-surrender date by 90 days in light of pandemic).

20 118 E.g., Xochihua-Jaimes v. Barr, No. 18-71460, 798 F. App’x 52 (9th Cir. Mar. 23,

21 2020) (Mem) (sua sponte releasing detainee from immigration detention “in light of

22

the rapidly escalating public health crisis”); Fraihat v. Wolf, No. 5:20-CV-590, (C.D. Cal. Mar. 30, 2020).

23 119 E.g., In re Request to Commute or Suspend County Jail Sentences, Docket No.

24 084230 (N.J. Mar. 22, 2020) (releasing large class of defendants serving time in

county jail “in light of the Public Health Emergency” caused by COVID-19). 25
120 E.g., United States v. Stahl, No. 18-cr-694, 2020 WL 1819986 (S.D.N.Y. Apr. 26 10, 2020).

27 121 Wilson, 2020 WL 1940882, at *8.

28 122 Martinez-Brooks, 2020 WL 2405350, at *32

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1

V.

2

LEGAL GROUNDS FOR PETITION

3 A. Respondents’ Failure to Take Steps to Mitigate Transmission of

4

COVID-19 Constitutes Deliberate Indifference to the Serious Medical

5

Needs of Petitioner.

6

81. Respondents are violating Petitioners’ Eighth Amendment rights by

7 continuing to incarcerate them in conditions that place them at substantial risk of

8 serious harm from transmission of an infectious and deadly disease, especially

9 considering Petitioners’ vulnerable conditions.

10

82. All individuals held at Lompoc have been convicted and assigned by

11 the BOP to serve time at Lompoc. Therefore, the treatment of all individuals

12 incarcerated at Lompoc, including the treatment of Petitioners, is governed by the

13 Eighth Amendment. See Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012).

14 The Ninth Circuit employs a two-part test in assessing whether prison officials have

15 violated the Eighth Amendment by way of deliberately indifference to the medical

16 needs of inmates: (1) the plaintiff must have “a serious medical need by

17 demonstrating that failure to treat a prisoner’s condition could result in further

18 significant injury or the unnecessary and wanton infliction of pain”; and (2) the

19 defendants’ “response to the need” must have been “deliberately indifferent.” Id.

20

83. Government officials act with deliberate indifference when they

21 “ignore a condition of confinement that is sure or very likely to cause serious illness

22 and needless suffering the next week or month or year,” even when “the

23 complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509

24 U.S. 25, 33 (1993). This Court need not “await a tragic event” to find that

25 Respondents are maintaining unconstitutional conditions of confinement. Id. at 32-

26 33. This is so not only because a tragedy is ongoing, but because even petitioners

27 and class members who have not yet tested positive have a constitutional right to be

28 free from conditions of confinement that “pose an unreasonable risk of serious

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1 damage to [Petitioner’s] future health.” Id. at 35.

2

84. Indeed, the threat of exposure to a deadly infectious disease such as

3 COVID-19 and subsequent mistreatment due to lack of medical resources

4 constitutes a serious risk to health, particularly for the Petitioners with unique

5 vulnerability to COVID-19. See Helling, 509 U.S. at 34 (noting with approval

6 Eighth Amendment claims based on exposure to serious contagious diseases);

7 Unknown Parties v. Johnson, No. cv-15-00250, 2016 WL 8188563, at *15 (D. Ariz.

8 Nov. 18, 2016), aff’d sub nom, Doe v. Kelly, 878 F.3d 710 (finding evidence of

9 medical risks associated with . . .being exposed to communicable diseases” adequate

10 to establish irreparable harm under the Eighth Amendment); Castillo v. Barr, --- F.

11 Supp. 3d ---, 2020 WL 1502864, at *5 (C.D. Cal. Mar. 27, 2020) (in civil

12 detainment context, ruling that officials could not “be deliberately indifferent to the

13 potential exposure of civil detainees to a serious, communicable disease on the

14 ground that the complaining detainee shows no serious current symptoms, or ignore

15 a condition of confinement that is more than very likely to cause a serious illness”).

16

85. As such, Petitioners are entitled to be protected from conditions of

17 confinement that create a serious risk to health or safety, including through release

18 from custody when necessary. Brown v. Plata, 563 U.S. 493, 531–32 (2011)

19 (upholding lower court’s order releasing people from state prison even though

20 release was based on prospect of future harm caused by prison overcrowding); see

21 also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (correctional official violates

22 Eighth Amendment by consciously failing to prevent “a substantial risk of serious

23 harm”).

24

86. Under Lompoc’s current conditions, Respondents have not and cannot

25 protect Petitioners and the class from this well-known risk of serious harm. In these

26 circumstances, enlargement of custody and, if necessary, release, is required to

27 protect Petitioners and other prisoners with high- risk health conditions from

28 unconstitutional custody.

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1

87. In this case, as established by the facts above, Petitioners face

2 a significant risk of exposure to COVID-19, with the attendant risk of death that

3 follows given their vulnerable conditions. Respondents are well aware of this risk,

4 having been alerted to it by the CDC, the Attorney General, BOP guidance,

5 widespread news reporting, and the ongoing outbreak at various BOP facilities

6 including Lompoc itself. Indeed, the Second Circuit Court of Appeals, unprompted,

7 acknowledged over a month ago the “grave and enduring” risk posed by COVID-19

8 in the correctional context. Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons,

9 No. 19-1778, -- F.3d --, 2020 WL 1320886, at *12 (2d Cir. Mar. 20, 2020).

10

88. Finally, as established above, Respondents have not taken steps

11 sufficient to protect Petitioners from the grave risks that are present every moment

12 he is incarcerated at Lompoc. Respondent Milusnic has recklessly failed to follow or

13 implement CDC guidance or directives from Attorney General Barr or the BOP.

14 Respondents are not capable of managing the risk to Petitioners in the facility’s

15 current environment. Respondents are holding Petitioners in violation of their

16 Eighth Amendment rights by detaining them in the face of significant threats to their

17 health and safety without taking reasonable steps to prevent or address that harm.

18 B. Overcrowding Ensures That Respondents Cannot Implement

19

Recommended Measures Required to Protect Petitioner’s Health, and

20

Violates the Eighth Amendment.

21

89. Respondents are violating Petitioners’ Eighth Amendment rights by

22 continuing to incarcerate them in conditions that place them at substantial risk of

23 serious harm from transmission of an infectious and deadly disease.

24

90. As alleged above, the BOP has thus far failed to implement effective

25 social distancing across its facilities, including and particularly at Lompoc, with

26 disastrous effects. Part of this failure reflects the nature of correctional confinement;

27 however, a large part here owes to the particular circumstances of Lompoc’s design,

28 capacity, and deliberate choices about policies by Respondents.

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1

91. In the midst of a pandemic, Respondents have chosen to maintain

2 overcrowding at Lompoc at a rate of 130% capacity. The profound and purposeful

3 overcrowding Lompoc ensures that effective social distancing is impossible, and it

4 stymies Respondents’ ability to follow and implement the CDC Interim Guidance

5 and other viral-transmission prevention measures.

6

92. Courts have long found that facilities’ populations may exacerbate

7 existing harms entirely unrelated to the fact of crowding itself, including cases

8 where overcrowding may inhibit a facility’s ability to mitigate incarcerated

9 individuals’ risk of contracting dangerous diseases. The Supreme Court itself has

10 recognized that correctional defendants such as Respondents can violate the Eighth

11 Amendment when they crowd prisoners into shared spaces with others who have

12 “infectious maladies.” Helling v. McKinney, 509 U.S. 25, 33 (1993); see also Hutto

13 v. Finney, 437 U.S. 678, 682–85 (1978) (recognizing the need for a remedy where

14 prisoners were crowded into cells and some had infectious diseases).

15

93. Such decisions make particular sense in light of substantial

16 corroborating evidence that transmission becomes more likely in light of, among

17 other factors, relative crowding of people together. See, e.g., Joseph A. Bick,

18 Infection Control in Jails and Prisons, 45 Clinical Infectious Diseases 1047, 1047

19 (Oct. 2007) (“The probability of transmission of potentially pathogenic organisms is

20 increased [in jails and prisons] by crowding, delays in medical evaluation and

21 treatment, rationed access to soap, water, and clean laundry, [and] insufficient

22 infection-control expertise.”), available at https://bit.ly/2QZA494.

23

94. In this case, Petitioner faces an elevated risk of serious illness both

24 because of particular failures on the part of Respondents as alleged above, and

25 because Respondents have chosen to overcrowd the facility. The current population

26 of Lompoc, both of incarcerated individuals and the staff who come through on

27 a daily basis and work in the same confined space, ensures that any effective

28 measures that would mitigate Petitioner’s exposure to and risk of serious illness

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1 from COVID-19 are impossible to implement.

2

VI.

3

CLASS ACTION ALLEGATIONS

4

95. Petitioners bring this action pursuant to Rule 23(b)(2) of the Federal

5 Rules of Civil Procedure on their own behalf and on behalf of all persons similarly

6 situated.

7

96. Petitioners seek to represent a class consisting of all current and future

8 people in post-conviction custody at Lompoc (the “Class”).

9

97. The members of both the Class are too numerous to be joined in one

10 action, and their joinder is impracticable. Upon information and belief, the Class

11 exceeds 1,000 individuals.

12

98. Several common questions of law and fact apply to all Class members.

13 These common questions of fact and law include but are not limited to: (1) whether

14 the conditions of confinement described in this Petition amount to constitutional

15 violations; (2) what measures Respondents have taken and are taking in response to

16 the COVID-19 crisis; (3) whether Respondents have implemented and are

17 implementing an adequate emergency plan during the COVID-19 crisis; (4) whether

18 Respondents’ practices during the COVID-19 crisis have exposed and are exposing

19 prisoners at Lompoc to a substantial risk of serious harm; (5) whether the

20 Respondents have known of and disregarded a substantial risk of serious harm to the

21 safety and health of the Class; and (6) what relief should be awarded to redress the

22 harms suffered by members of the Class as a result of the conditions.

23

99. Absent class certification, individuals incarcerated at Lompoc during

24 the COVID- 19 pandemic would face a series of barriers in accessing the relief

25 sought. Lompoc has suspended visitation, and individuals incarcerated there have

26 limited access to communication with the outside world, impeding their ability to

27 obtain legal representation and pursue litigation. Because the Class are all sentenced

28 prisoners, they do not have defense attorneys already working with them on their

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1 criminal proceedings. And a large portion of the Class has limited educational

2 backgrounds and financial means.

3

100. Respondents’ practices and the claims alleged in this Petition are

4 common to all members of the Class and members of the Class.

5

101. The claims of Petitioners are typical of those of the Class. Petitioners,

6 like all others at Lompoc, are currently being held in unconstitutional custody at

7 Lompoc. Petitioners Torres, Reed, and Brown, like many other members of the

8 Class, have underlying conditions that enhance their risk of serious illness or death

9 from COVID-19.

10

102. The legal theories on which Petitioner relies are the same or similar to

11 those on which all Class members would rely, and the harms suffered by them are

12 typical of those suffered by all the other Class members.

13

103. Petitioner will fairly and adequately protect the interests of the Class.

14 The interests of the Class representatives are consistent with those of the Class

15 members. In addition, counsel for Petitioner is experienced in class action and civil

16 rights litigation and in criminal law.

17

104. Counsel for Petitioner knows of no conflicts of interest among Class

18 members or between the attorneys and Class members that would affect this

19 litigation.

20

VII.

21

CLAIMS FOR RELIEF

22

FIRST CLAIM FOR RELIEF

23

(Eighth Amendment)

24

Unconstitutional Conditions of Confinement in Violation of the Eighth

25

Amendment to the U.S. Constitution

26

28 U.S.C. § 2241/28 U.S.C. § 2243

27

Class versus All Defendants

28

105. Petitioner incorporates by reference each and every allegation

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1 contained in the preceding paragraphs as if set forth fully herein.

2

106. Petitioners bring this claim on their own behalf and on behalf of the

3 Class.

4

107. The Eighth Amendment guarantees sentenced prisoners custody free of

5 “a condition of confinement that is sure or very likely to cause serious illness and

6 needless suffering the next week or month or year.” Helling, 509 U.S. at 33; see also

7 U.S. Const. Amend VIII. The government’s failure to protect the prisoners in its

8 custody from a widespread outbreak of a serious contagious disease that causes

9 potentially permanent damage or death constitutes deliberate indifference in

10 violation of the Eighth Amendment to the United States Constitution.

11

108. Petitioners and the Class are at severe risk of contracting COVID-19

12 because 60% of prisoners have already tested positive. Petitioners and the sub-class

13 are uniquely vulnerable to serious complications or death from contracting

14 COVID-19 because of their age and/or because they suffer from medical conditions

15 that render them uniquely vulnerable.

16

109. Because of the conditions at Lompoc, Petitioners and Class members

17 cannot take steps to protect themselves—such as social distancing, hand-washing

18 hygiene, or self-quarantining—and the government has not provided adequate

19 protections. As COVID-19 rapidly spreads inside Lompoc, the already deplorable

20 conditions at the prison will continue to deteriorate, and incarcerated individuals

21 there will continue to contract COVID-19 at staggering rates. Due to inadequate

22 medical care at Lompoc, the health and safety of those who contract COVID-19 will

23 be put in unconstitutional danger.

24

110. Petitioners contend that the fact of their confinement in prison itself

25 amounts to an Eighth Amendment violation under these circumstances, and nothing

26 short of an order ending their confinement at Lompoc will alleviate that violation.

27

111. Respondent’s failure to adequately protect Petitioners from these

28 unconstitutional conditions, or release them from the conditions altogether,

3652391.1

43

CORRECTED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 44 of 189 Page ID #:269

1 constitutes deliberate indifference to a substantial risk of serious harm to Petitioners,

2 and all members of the Class, thereby establishing a violation of the Eighth

3 Amendment to the United States Constitution.

4

112. Respondents were aware or should have been aware of these

5 conditions, which were and are open and obvious throughout the entire prison

6

113. Respondents knew of and disregarded an excessive risk to health and

7 safety.

8

114. Respondents failed to act with reasonable care to mitigate these risks,

9 subjecting Petitioners to a grave and serious risk of harm of serious illness,

10 permanent injury, or death.

11

115. Because Respondents failed to act to remedy Petitioners’ and the

12 Class’s degrading and inhumane conditions of confinement in violation of their

13 Eighth Amendment rights, Petitioners seek relief under this Writ of Habeas Corpus

14 Petition and Class Action Complaint.

15

116. Because of the unlawful conduct of Respondents, Petitioners and the

16 Class are threatened with imminent physical injury, pain and suffering, emotional

17 distress, humiliation, and death.

18

SECOND CLAIM FOR RELIEF

19

(Eighth Amendment)

20

Unconstitutional Conditions of Confinement in Violation of the

Eighth Amendment to the U.S. Constitution

21

Injunctive Relief Only

22 U.S. Const, Amend. VIII; 28 U.S.C. § 1331; 5 U.S.C. § 702

23

Class versus All Defendants in their Official Capacities

24

117. Petitioners incorporate by reference each and every allegation

25

contained in the preceding paragraphs as if set forth fully herein.

26

118. Petitioners bring this claim on their own behalf and on behalf of the

27

Class.

28

3652391.1

44

CORRECTED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 45 of 189 Page ID #:270

1

119. This claim does not seek the release of any members of the Class and

2 accordingly is not maintained pursuant to 28 U.S.C. § 2241. However, it is well-

3 established that individuals may sue to enjoin constitutional violations, either

4 directly under the Constitution or under the Administrative Procedure Act. See

5 Sierra Club v. Trump, 929 F.3d 670, 694 (9th Cir. 2019) (“Plaintiffs may bring their

6 challenge through an equitable action to enjoin unconstitutional official conduct, or

7 under the judicial review provisions of the Administrative Procedure Act

8 (“APA”), 5 U.S.C. § 701 et seq., as a challenge to a final agency decision that is

9 alleged to violate the Constitution, or both.”); Fazaga v. FBI, 916 F.3d 1202, 1239–

10 1241 (9th Cir. 2019) (permitting claims against federal officials in their official

11 capacities for injunctive relief directly under the Fourth Amendment, even though

12 Privacy Act provides for other remedies, and contrasting them to direct actions

13 under the Fourth Amendment for money damages, which are Bivens claims); Jones

14 v. Hurwitz, 324 F. Supp. 3d 97, 100 (D.D.C. 2018) (finding that a Bivens claim

15 could not be maintained because allegations were against defendants in their official

16 capacities but that equitable action could have been maintained as a “direct cause of

17 action arising under the Constitution”); Farmer v. Brennan, 511 U.S. 825, 846

18 (1994) (“If the court finds the Eighth Amendment’s subjective and objective

19 requirements satisfied” with regard to a federal prisoner, “it may grant appropriate

20 injunctive relief.”).

21

120. Because of the conditions at Lompoc, Petitioners and Class members

22 cannot take steps to protect themselves—such as social distancing, hand-washing

23 hygiene, or self-quarantining—and the government has not provided adequate

24 protections. As COVID-19 rapidly spreads inside Lompoc, the already deplorable

25 conditions at the prison will continue to deteriorate, and incarcerated individuals

26 there will continue to contract COVID-19 at staggering rates.

27

121. Respondent’s failure to adequately protect Petitioners from these

28 unconstitutional conditions, or release them from the conditions altogether,

3652391.1

45

CORRECTED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 46 of 189 Page ID #:271

1 constitutes deliberate indifference to a substantial risk of serious harm to Petitioners,

2 and all members of the Class, thereby establishing a violation of the Eighth

3 Amendment to the United States Constitution.

4

122. Because of the unlawful conduct of Respondents, Petitioners and the

5 Class are threatened with imminent physical injury, pain and suffering, emotional

6 distress, humiliation, and death.

7

VIII.

8

RELIEF REQUESTED

9

WHEREFORE, Petitioners, and the Class respectfully request that the Court:

10

1. Declare that Lompoc’s custody of Petitioners and the Class violates the

11 Eighth Amendment right against cruel and unusual punishment with respect to

12 Petitioners and the Class;

13

2. Order a highly expedited process—for completion within no more than

14 48 hours—for Respondents to use procedures available under the law to review

15 members of the Class for enlargement of custody to home confinement (or bail

16 pending habeas corpus) in order to reduce the density of the prison population to

17 a number that allows for the implementation of appropriate measures to prevent the

18 spread of COVID-19, during the pendency of this petition for a writ of habeas

19 corpus;

20

3. Order respondents to comply with the Constitution for any Class

21 members who do not receive temporary enlargement and remain at Lompoc during

22 the pendency of the petition;

23

4. Grant a writ of habeas corpus for all members of the class that received

24 temporary enlargement within one day of the Court’s order and release all such

25 persons within twenty-four hours;

26

5. Enter a temporary restraining order, preliminary injunction and

27 permanent injunction requiring Respondents to immediately adopt mitigation efforts

28 to protect all Class Members not released, including but not limited to:

3652391.1

46

CORRECTED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 47 of 189 Page ID #:272

1

A. Providing adequate spacing of six feet or more between

2

incarcerated people so that social distancing can be

3

accomplished in accordance with CDC guidelines;

4

B. Ensuring that each incarcerated person receives, free of

5

charge, an individual supply of hand soap and paper

6

towels sufficient to allow frequent hand washing and

7

drying each day; an adequate supply of clean implements

8

for cleaning such as sponges and brushes and disinfectant

9

hand wipes or disinfectant products effective against the

10

virus that causes COVID-19 for daily cleanings;

11

C. Ensuring that all incarcerated people have access to hand

12

sanitizer containing at least 60% alcohol;

13

D. Providing access to daily showers and daily access to

14

clean laundry, including clean personal towels and

15

washrags after each shower;

16

E. Requiring that all Lompoc staff wear personal protective

17

equipment, consistent with the CDC guidance, including

18

masks and gloves, when interacting with any person or

19

when touching surfaces in cells or common areas;

20

F. Requiring that all Lompoc staff wash their hands, apply

21

hand sanitizer containing at least 60% alcohol, or change

22

their gloves both before and after interacting with any

23

person or touching surfaces in cells or common areas;

24

G. Taking the temperature of all class members and screening

25

for symptoms of COVID-19 of all class members, prison

26

staff, and visitors daily (with a functioning and properly

27

operated and sanitized thermometer) to identify potential

28

COVID-19 infections;

3652391.1

47

CORRECTED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 48 of 189 Page ID #:273

1

H. Assessing (through questioning) each incarcerated person

2

daily to identify potential COVID-19 infections;

3

I. Ensuring that all class member and prison staff exposed to

4

individuals with known cases of COVID-19 be isolated

5

from individuals who have not tested positive.

6

J. Immediately providing on a daily basis clean masks for all

7

individuals who display or report potential COVID-19

8

symptoms until they can be evaluated by a qualified

9

medical professional or placed in non-punitive quarantine

10

and ensure the masks are properly laundered with

11

replacements as necessary;

12

K. Ensuring that individuals identified as having COVID-19

13

or having been exposed to COVID-19 receive adequate

14

medical care and are properly quarantined (without

15

resorting to cohorting, if possible), in a non-punitive

16

setting, with continued access to showers, recreation,

17

mental health services, reading materials, phone and video

18

visitation with loved ones, communications with counsel,

19

and personal property;

20

L. Cleaning and disinfecting frequently touched surfaces with

21

disinfectant products effective against the virus that causes

22

COVID-19 (at the manufacturer's recommended

23

concentration), as well as surfaces in common areas, every

24

two hours during waking hours, and at least once during

25

the night;

26

M. Assuring incarcerated people are told they will not be

27

retaliated against for reported COVID-19 symptoms;

28

N. Providing necessary medical treatment consistent with

3652391.1

48

CORRECTED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 49 of 189 Page ID #:274

1

community standards for incarcerated people who are ill

2

because of COVID-19;

3

O. Responding to all emergency (as defined by the medical

4

community) requests for medical attention within an hour;

5

P. Crafting a mechanism to ensure compliance through the

6

appointment of an independent monitor with medical

7

expertise to ensure compliance with these conditions, and

8

provide the monitor with unfettered access to medical

9

units, confidential communication with detained

10

individuals in and out of quarantine, and surveillance

11

video of public areas of the facilities;

12

6. Certify this petition as a class action, for the reasons stated herein;

13

7. Award Plaintiffs’ attorneys’ fees and costs, as provided by statute and

14 law; and

15

8. Order such other and further relief as this Court deems just, proper and

16 equitable.

17

Local Rule 5-4.3.4(a)(2)(i) Compliance: Filer attests that all other

18 signatories listed concur in the filing’s content and have authorized this filing.

19 DATED: June 1, 2020 20

Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C.

21

By:

/s/ Naeun Rim

22

Naeun Rim Attorneys for Plaintiff-Petitioners

23

24 DATED: June 1, 2020 25

Peter J. Eliasberg Peter Bibring ACLU Foundation of Southern California

26

By:

/s/ Peter Bibring

27

Peter Bibring

28

Attorneys for Plaintiff-Petitioners

3652391.1

49

CORRECTED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 50 of 189 Page ID #:275

1 DATED: June 1, 2020 2

Donald Specter Sara Norman Prison Law Office

3

By:

/s/ Donald Specter

4

Donald Specter Attorneys for Plaintiff-Petitioners

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3652391.1

50

CORRECTED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

AND PETITION FOR WRIT OF HABEAS CORPUS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 51 of 189 Page ID #:276
EXHIBIT 1
51

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 52 of 189 Page ID #:277

1

DECLARATION OF KIARA CARROR

2

I, Kiara Carror, am over the age of 18 and fully competent to declare as

3 follows:

4

1. My brother is Yonnedil Carror Torres. He is currently incarcerated at

5 USP Lompoc in Lompoc, California. His BOP Register Number is 41928-069.

6

2. My brother is 24 years old, and has suffered from chronic asthma since

7 he was a child.

8

3. I periodically converse with my brother through telephone and letters.

9 From about mid-April until May 9, the prison would not allow any prisoners to use

10 the telephone, and my brother could only reach me through letters. He has not been

11 able to get in direct contact with any lawyers. He confirmed for me over the phone

12 that he consented to being a party to this lawsuit. Through phones and letters, my

13 brother has described to me how he almost lost his life at Lompoc.

14

4. My brother currently resides in the medium-security prison at USP

15 Lompoc. He lives in a tiny cell. The cells in his block are normally single

16 occupancy, but currently each cell houses two prisoners. He shares a single toilet in

17 his cell with his cellmate. Many prisoners in his block are visibly sick.

18

5. On April 24, 2020, we received a letter from my brother telling us that

19 he was extremely sick and was concerned that he may have COVID-19.

20

6. On April 30, 2020, we received a letter from my brother’s cellmate,

21 informing us that my brother had asked the guards for medical assistance for five

22 days, but was completely ignored. He suffered from fever, diarrhea, body aches, and

23 eventually went into acute respiratory failure and collapsed in his cell.

24

7. Every inmate in his block began to bang their cell doors in unison to

25 demand that my brother receive medical attention. Only then was my brother rushed

26 to a hospital and put into a medically-induced coma. Only then was he tested for

27 COVID-19. He tested positive and was intubated and put on a ventilator.

28

8. On May 1, 2020, I contacted the prison and was only told that my

3649759.1

DECLARA5T2ION OF KIARA CARROR

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 53 of 189 Page ID #:278

1 brother was no longer at the hospital. They would not give me any other information

2 about his whereabouts. On May 4, 2020, we belatedly received a letter from my

3 brother saying that he had been taken to the hospital and was waiting to be put on a

4 ventilator. We had no way of knowing whether he was even still alive.

5

9. On May 9, 2020, I finally received a phone call from my brother. His

6 voice sounded hoarse and unfamiliar. He said that a doctor had told him that he

7 suffered acute lung damage from COVID-19 due to his asthma, and his lung

8 capacity was severely deteriorated as a result. After my brother regained

9 consciousness, they briefly placed him in a quarantine unit and then returned him to

10 his original cell.

11

10. My brother has seen other sick prisoners and their experiences have

12 been similar. He says the prison allows people who are infected with COVID-19 to

13 hit “rock bottom” before any testing or treatment is offered.

14

11. I submitted a request for compassionate release to the Warden of USP

15 Lompoc on my brother’s behalf on May 11, 2020, but have not received a response.

16

12. If transferred to home confinement, my brother would stay with me at

17 my home in 420 Bay Leaf Dr Kissimmee, FL 34759. He would have access to

18 doctors familiar with his medical history.

19

I declare under penalty of perjury under the laws of the United States of

20 America that the foregoing is true and correct.

21

Executed on May 14, 2020, at Kissimmee, FL

22

23

24

25 Kiara Carror
26

27

28

3649759.1

2 DECLARA5T3ION OF KIARA CARROR

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 54 of 189 Page ID #:279
EXHIBIT 2
54

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55

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56

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57

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EXHIBIT 3
58

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 59 of 189 Page ID #:284

1

DECLARATION OF GRACIELA ZAVALA-GARCIA

2

I, Graciela Zavala-Garcia, am over the age of 18 and fully competent to

3 declare as follows:

4

1. My name is Graciela Zavala-Garcia. I am a practicing attorney,

5 licensed in the State of California for 36 years, with California State Bar No.

6 113901.

7

2. My son’s name is Felix Samuel Garcia. He is 36 years old and has been

8 incarcerated since September, 2015. He is currently in Lompoc, California for the

9 past three years. He was at FCI Lompoc for most of that time, but on May 7, 2020,

10 he was moved to USP Lompoc. My son has a release date of November 6, 2020, and

11 a release date to a “halfway house” for July 7, 2020. His BOP Register Number is

12 46693-298.

13

3. Sometime in March 2020, FCI Lompoc went into lockdown and

14 beginning on April 17, 2020, my son was denied all access to telephones, email, and

15 commissary. Until May 12, 2020, the only way I could communicate with him was

16 through letters. On May 12, 2020, I received one phone call from my son, and he

17 told me that he wanted to participate in this lawsuit as a named plaintiff. The

18 following information is based on what my son has told me through that call and

19 through his letters.

20

4. In early May, my son tested negative for COVID-19. A few days later,

21 on May 7, 2020, he was moved out of Unit J at FCI Lompoc and to a makeshift

22 prisoner housing unit set up in a warehouse at USP Lompoc. The warehouse has

23 multiple small cells that are occupied by two prisoners each. He shares a toilet and

24 sink with his cellmate. The warehouse is on total lockdown, and my son is kept in

25 his cell almost twenty-four hours a day.

26

5. The conditions at the warehouse are extremely unsanitary. Since

27 moving to the warehouse, my son has not been able to shower or change into clean

28

3649384.1

59

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 60 of 189 Page ID #:285

1 clothes. My son has been forced to wet his body with water from his sink in a

2 desperate attempt to maintain hygiene.

3

6. In late April, while still at FCI Lompoc, my son received a single mask.

4 He has had to reuse that mask since then. My son has not been given access to hand

5 sanitizer, and says that there is currently a shortage of soap in the warehouse where

6 he lives.

7

7. My son says that other prisoners have been retaliated against for

8 expressing concerns about their safety to the warden. My son also tells me that some

9 prisoners in at FCI Lompoc are being held past their release dates due to the total

10 lockdown.

11

8. On May 11, 2020, my son submitted a request for home confinement to

12 the warden at USP Lompoc through his attorney. We have not yet received a

13 response.

14

8. My son’s current release date is November 6, 2020. He is scheduled to

15 go to a halfway house in July 2020. I do not understand why the BOP would

16 continue to place him and others at risk in an overcrowded prison, rather than

17 transfer him to home confinement just two months before he was scheduled for

18 release to a halfway house.

19

9. If transferred to home confinement, my son would self-quarantine at

20 my house in Imperial Beach, California, with his father and me. He would have

21 access to doctors who are familiar with his medical history.

22

I declare under penalty of perjury under the laws of the United States of

23 America that the foregoing is true and correct.

24

25

Executed on May 14, 2020, at Imperial Beach, California

26

27

28

3649384.1

60 2

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61

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EXHIBIT 4
62

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 63 of 189 Page ID #:288

1

DECLARATION OF VERNA WEFALD

2

I, Verna Wefald, am over the age of 18 and fully competent to declare as follows:

3

1. I am an attorney licensed to practice law in the State of California (Bar

4 No. 127104). I make this declaration on behalf of my client Andre Brown, Reg.

5 No. 54460-097, who is incarcerated at the United States Penitentiary in Lompoc,

6 California. Mr. Brown, who is 55 years old (DOB 7/13/65) and a United States citizen by

7 birth, is learning disabled and illiterate. He therefore asked that I make this request on his

8 behalf to join a lawsuit to be filed by the ACLU regarding the COVID-19 emergency at

9 various federal correctional institutions, including Lompoc.

10

2. I was appointed by the Ninth Circuit Court of Appeals to represent Andre

11 Brown in the appeal of his criminal conviction in the Central District of California. United

12 States v. Brown, 19-50025 (13 CR 822). The appeal is fully briefed and may be argued

13 sometime between September and November 2020.

14

3. Mr. Brown was sentenced by the Honorable Otis D. Wright on January 28,

15 2018, to 150 months in prison after being convicted by a jury of two counts of drug

16 trafficking (PCP). He was convicted of distribution and conspiracy in violation of 21

17 U.S.C. §§ 841(a)(1), (b)(1)(B)(iv), and 846. Mr. Brown has been in custody since his

18 arrest on February 12, 2014, or for more than half of his sentence. The BOP website

19 indicates his projected release date is 10/06/2024. See Exhibit A

20

4. Mr. Brown has some minor prior convictions but the last one was 20 years

21 ago.

22

5. On Tuesday, May 12, 2020, I spoke to Mr. Brown in a legal call arranged by

23 the Regional Counsel Dennis Wong. I sent a fax per Lompoc’s request to set up a legal

24 call on May 1. Mr. Wong sent me an email on May 7, to set up the call. He explained that

25 after each call the office and phone needs to be cleaned so arranging for phone calls is

26 a complicated matter. We arranged for me to be awaiting a call between 9:00 A.M. and

27 noon from Tuesday through Thursday but I was able to speak with Mr. Brown early

28 Tuesday morning. During this call, Mr. Brown confirmed to me that he wanted to

1 DECLARA6T3ION OF VERNA WEFALD

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 64 of 189 Page ID #:289

1 participate as a named plaintiff in this litigation.

2

6. I did not have a chance to ask Mr. Brown about the details of his housing.

3 However, he is very concerned for his health given the serious outbreak of COVID-19 at

4 Lompoc. At his sentencing, the Presentence Report (PSR) verified that Mr. Brown has

5 prostate cancer. He will need chemotherapy or surgery in the future. I do not know how he

6 is being treated for his cancer at this time.

7

7. Yesterday I sent a request to Lompoc Warden J. Engleman (by email, fax,

8 and certified mail) requesting compassionate release and/or home confinement for

9 Mr. Brown. If the warden does not respond within 30 days I will file a motion in the

10 district court requesting that he be released forthwith.

11

8. I have communicated with Mr. Brown’s daughter Andrea Brown several

12 times. She said that he would be able to live with her as he has in the past. Mr. Brown also

13 has five other children in the Los Angeles area to whom he is close and who could help to

14 support him as well. He will certainly be eligible for Medicaid and can continue to see his

15 doctors at the Martin Luther King Hospital and the Centinela Medical Center in Lawndale.

16

9. Mr. Brown is particularly vulnerable at Lompoc given his underlying serious

17 health problems and his inability to communicate with the outside world by mail. At

18 present there are no phone calls or visits allowed at Lompoc. Legal calls have to be

19 arranged and this takes some time.

20

I declare under penalty of perjury under the laws of the United States of America

21 that the foregoing is true and correct.

22

23

24

25

26

27

28

2 DECLARA6T4ION OF VERNA WEFALD

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EXHIBIT 5
65

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1

DECLARATION OF NEMA ZAYED FEARS

2

I, Nema Zayed Fears, declare as follows:

3

1. I am over the age of 18, and if called as a witness, I could and would

4 competently testify.

5

2. My father is Shawn L. Fears. He is 50 years old and currently incarcerated at

6 USP Lompoc in Lompoc, California. His BOP Register Number is 34183-060.

7

3. Since April 16 2020, the prison has been under lockdown, and my father has

8 not been permitted to use a computer or telephone. I have only been able to converse with

9 him through letters. Through a letter dated May 10, 2020, he told me that he wanted to

10 participate in this lawsuit as a named plaintiff. The following information is based on what

11 my father has told me through his letters.

12

4. My father currently resides in the South Camp at USP Lompoc. He lives in

13 an open-plan dormitory, where prisoners reside in extremely close quarters with each other

14 and share a bathroom. Many prisoners in my father’s dormitory are sick.

15

5. Since the COVID-19 outbreak started, a single mask is the only piece of

16 protective equipment that my father has received. He has had to re-use that mask for

17 weeks.

18

6. My father has never been tested for COVID-19. The only testing he has seen

19 in his dormitory is temperature checks.

20

7. My father says that guards have stopped accepting requests for medical care

21 from prisoners since the outbreak started. He has seen other prisoners being denied regular

22 medical treatment that they would have received prior to the outbreak.

23

8. If transferred to home confinement, my father would self-quarantine at

24 10135 Shoreline Pkwy., Villa Rica, GA 30180. He would have access to doctors who are

25 familiar with his medical history.

26

I declare under penalty of perjury under the laws of the United States of America

27 that the foregoing is true and correct.

28

3649743.1

DECLARATI6O6N OF NEMA ZAYED FEARS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 67 of 189 Page ID #:292

1

Executed May 15, 2020, at Villa Rica, Georgia.

2

3 Nema Zayed Fears
4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3649743.1

2 DECLARATI6O7N OF NEMA ZAYED FEARS

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EXHIBIT 6
68

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1

DECLARATION OF DARWIN P. ROBERTS

2

I, Darwin P. Roberts, declare as follows:

3

1. I am an attorney and a member of the Criminal Justice Act panel in the

4 Western District of Washington. I was appointed counsel for Charles Cheatham in

5 pretrial proceedings in the case United States v. Charles Cheatham, U.S. District

6 Court, Western District of Washington, cause number 2:18-CR-00131-RAJ-1.

7 I represent Mr. Cheatham in his currently pending appeal in the Ninth Circuit Court

8 of Appeals, cause number 19-30294.

9

2. Mr. Cheatham is in the custody of the United States Bureau of Prisons

10 serving a sentence of incarceration imposed by the U.S. District Court. His current

11 projected release date is in March of 2031. His BOP register number is 48768-086.

12

3. In early 2020, Mr. Cheatham was transferred from the Federal

13 Detention Center in Seattle, Washington, to Lompoc Federal Correctional Institution

14 in Lompoc, CA.

15

4. Since COVID-19 cases began to develop in the Bureau of Prisons,

16 Mr. Cheatham’s ability to communicate with me has been limited. Mr. Cheatham

17 has lost most or all of his access to email, and only occasionally can contact me by

18 telephone.

19

5. I was able to speak with Mr. Cheatham today, May 14, 2020, for five

20 minutes. Mr. Cheatham stated he could only speak for five minutes at a time and

21 that there were “80 people” waiting their turn to use the telephone for five minutes.

22 I also received information on May 12, 2020, from family members Mr. Cheatham

23 was able to reach by telephone then.

24

6. Mr. Cheatham told me that COVID-19 cases at Lompoc FCI have

25 “blown up” in recent weeks. This is consistent with the figures reported on the

26 BOP’s website (https://www.bop.gov/coronavirus/), which currently lists 885 cases

27 among inmates at Lompoc FCI, and 13 cases among staff.

28

7. Mr. Cheatham told me that medical care offered by the BOP for

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DECLARATI6O9N OF DARWIN P. ROBERTS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 70 of 189 Page ID #:295

1 COVID-19 has been very limited or nonexistent. He stated that inmates are not

2 tested for COVID-19 unless they are showing obvious symptoms, but even if they

3 are showing symptoms and test positive, they are not isolated from other inmates.

4

8. Mr. Cheatham reports that after several days in which he was showing

5 “obvious” symptoms of COVID-19, he was finally given a test for COVID-19 and

6 tested positive. I understand he tested positive within the last 14 days. Nevertheless,

7 he continues to be held in a dormitory-type situation with approximately 100 other

8 inmates, most of whom, he says, also now have COVID-19.

9

9. Mr. Cheatham stated that he and his fellow inmates are not being

10 provided any medication by BOP to treat their COVID-19 symptoms. He stated that

11 they are only being given occasional access to the commissary, meaning they are

12 generally unable to purchase cough drops, cough syrup, or other over-the-counter

13 medications such as aspirin or other painkillers to self-medicate their symptoms.

14

10. Mr. Cheatham stated that due to his untreated respiratory illness and

15 severe sore throat, he was unable to consume any food other than broth for a week.

16

11. Mr. Cheatham stated the inmates in his area are sleeping under fans that

17 circulate air all night and presumably may be spreading the virus among inmates.

18

12. Mr. Cheatham stated that because of BOP’s previous efforts to isolate

19 the inmates, he believes the COVID-19 infection must have been introduced into the

20 prison from BOP staff.

21

I declare under penalty of perjury under the laws of the United States of

22 America that the foregoing is true and correct, and that I executed this declaration

23 on May 15, 2020, at Seattle, Washington.

24

25

/s/ Darwin P. Roberts

Darwin P. Roberts

26

27

28

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2 DECLARATI7O0N OF DARWIN P. ROBERTS

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 71 of 189 Page ID #:296
EXHIBIT 7
71

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 72 of 189 Page ID #:297

1

DECLARATION OF SHAMSHER SAMRA, M.D.

2

I, Shamsher Samra, declare as follows:

3

1. I am an Assistant Professor of Clinical Medicine at University of

4 California, Los Angeles and a faculty member in the Department of Emergency

5 Medicine at Harbor-UCLA. I work clinically in the LA County jails and participate

6 in jail reentry programs in Los Angeles County. I am a physician trained in forensic

7 medical evaluations through Physicians for Human Rights. I am a founding

8 member of both the Harbor-Hospital Based Violence Intervention Program and

9 Trauma Recovery Centers. I completed by residency in Emergency Medicine at the

10 University of California, Los Angeles. I received my M.D. from Harvard Medical

11 School. Attached as Exhibit A is my curriculum vitae.

12

2. COVID-19 is a serious disease that has reached pandemic status, and is

13 straining the health care systems around the world. As of May 14, 2020, at least 1.3

14 million people in the United States had received confirmed diagnoses of COVID 19.

15 At least 83,000 people have died in the United States. Approximately 71,000 of the

16 confirmed cases were in California, with more than 2,900 having died.1 These

17 numbers will continue to increase, perhaps exponentially. Moreover, these figures

18 must be considered in light of nationwide shortages of COVID-19 tests, meaning the

19 actual numbers are likely significantly higher than those reported.

20

3. The Lompoc complex is comprised of Federal Correctional Institution

21 Lompoc (“FCI Lompoc”) and United States Penitentiary Lompoc (“USP Lompoc”).

22 USP Lompoc itself has two components, a low-security camp and a medium-

23 security prison. In total, the facilities have a rated design capacity of 2058.2

24 1 Coronavirus Disease 2019, Centers for Disease Control and Prevention,
25 available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-
26 us.html

27 2 Prison Rape Elimination Act Audit Report, Federal Bureau of Prisons, at pages 28 2–3, available at https://www.bop.gov/locations/institutions/lof/prea_lof.pdf

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1 However, as of May 14, 2020 they had a total population of 2680, thus exceeding

2 capacity.3 As of May 14, 2020, BOP’s website reports that there are a total of 924

3 people at FCI Lompoc who are currently or were recently positive for COVID-19,

4 including 882 residents and 14 staff currently deemed positive, and 25 inmates

5 reported as being “recovered” after previously testing positive.4 As of May 14,

6 BOP’s website reports that there were a total of 137 people at USP Lompoc who are

7 currently or were recently positive for COVID-19, including 22 staff and

8 16 residents currently deemed positive, and 93 residents reported as being

9 “recovered” after previously testing positive.5 The reported numbers change daily,

10 and the BOP website does not show what criteria it is using to consider someone

11 “recovered.” At least 2 residents have died at FCI Lompoc due to coronavirus.6

12

4. COVID-19 is a novel respiratory virus. It is spread primarily through

13 droplets generated when an infected person coughs or sneezes, or through droplets

14 of saliva or discharge from the nose. There is no vaccine for COVID-19, and there is

15 no cure for COVID-19. No one has prior immunity. The only way to control the

16 virus is to use preventive strategies, including social distancing.

17

5. The time course of the disease can be very rapid. Individuals can show

18 the first symptoms of infection in as few as two days after exposure and their

19 condition can seriously deteriorate in as few as five days (perhaps sooner) after that.

20 It is believed that people can transmit the virus without being symptomatic and,

21 3 Inmate Population Breakdown, Federal Bureau of Prisons, available at
22 https://www.bop.gov/mobile/about/population_statistics.jsp
23 4 COVID-19, Federal Bureau of Prisons, available at 24 https://www.bop.gov/coronavirus/

25 5 COVID-19, Federal Bureau of Prisons, available at 26 https://www.bop.gov/coronavirus/

27 6 COVID-19, Federal Bureau of Prisons, available at 28 https://www.bop.gov/coronavirus/

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1 indeed, that a significant amount of transmission may be from people who are

2 infected but asymptomatic or pre-symptomatic.

3

6. COVID-19 causes serious illness, with overall case fatality rates in the

4 United States so far estimated at 5.8%. An estimated 20% of those who become

5 infected and develop symptoms require significant medical intervention. While

6 certain medical conditions increase the probability of death from infection,

7 otherwise perfectly healthy people are also vulnerable to COVID-19 and may die as

8 a result. For example, adults age 20 to 44 account for 20% of all hospitalizations

9 and 12% of ICU admissions.7

10

7. Treatment for serious cases of COVID-19 requires significant advanced

11 support. In particular, appropriate supportive care often requires ventilator

12 assistance for respiration and prone positioning if a patient’s condition worsens

13 despite intubation and ventilation. Furthermore, hospitals across the country are

14 deploying a variety of drug regimens, including antivirals and imunomodulators, in

15 search of the most effective remedy against COVID-19. It is essential that patients

16 have immediate access to such advanced supportive care, because the condition of

17 patients who require hospitalization often deteriorates in rapid fashion. For

18 instance, approximately 50% develop hypoxemia (shortage of oxygen in the blood

19 or shortage of oxygen) by the eighth day. And as many as 29% develop Acute

20 Respiratory Distress Syndrome (ARDS).8 In addition to being a very lethal

21 condition on its own, ARDS has a long and varied list of related complications that

22 are as equally fatal: blood clots, collapsed lung, infections, and scarring of lung

23
24 7 Coronavirus, COVID-19, Johns Hopkins Medicine, available at hopkinsguides.com/hopkins/view/Johns_Hopkins_ABX_Guide/540747/all/Coronav
25 irus_COVID_19__SARS_CoV_2_#2
26 8 Coronavirus, COVID-19, Johns Hopkins Medicine, available at
27 hopkinsguides.com/hopkins/view/Johns_Hopkins_ABX_Guide/540747/all/Coronav 28 irus_COVID_19__SARS_CoV_2_#2

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1 tissue.9 In sum, for those individuals who experience more severe symptoms from

2 COVID-19, immediate and substantial medical intervention is required.

3

8. The effects of COVID-19 are especially serious for people who are

4 most vulnerable. Vulnerable people include people over the age of 50, and those of

5 any age with underlying health problems such as—but not limited to—weakened

6 immune systems (which can be caused by a variety of conditions, including but not

7 limited to cancer treatment, smoking, and immune weakening medications),

8 moderate to severe asthma, diabetes, hypertension, serious heart and lung disease,

9 severe obesity, liver disease, chronic kidney disease, and possibly pregnancy.10

10 While the CDC typically classifies only people 65 and older as vulnerable,

11 incarcerated individuals tend to be in poorer health than those in the general

12 population, justifying the use of an earlier cutoff in classifying people deemed

13 vulnerable to COVID-19.

14

9. Although individuals in the above-described populations are most

15 vulnerable, even younger and healthier people can suffer severe consequences. For

16 example, even healthier people who contract COVID-19 are susceptible to severe

17 strokes and may require supportive care, which includes supplemental oxygen,

18 positive pressure ventilation, and in extreme cases, extracorporeal mechanical

19 oxygenation.

20

10. The full extent of long-term sequela on cardio and cerebrovascular

21 diseases and other organ damage is unknown at this time in light of the novel nature

22 of COVID-19. However, preliminary evidence suggests COVID-19 may render

23 lasting organ damage in even minimally symptomatic or completely asymptomatic

24 9 ARDS, Mayo Clinic, available at https://www.mayoclinic.org/diseases-
25 conditions/ards/symptoms-causes/syc-20355576
26 10 Coronavirus Disease 2019, Centers for Disease Control and Prevention,
27 available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
28 precautions/people-at-higher-risk.html

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1 patients. For example, COVID-19 can severely damage lung tissue, which requires

2 an extensive period of rehabilitation, and in some cases, can cause a permanent loss

3 of respiratory capacity. Furthermore, COVID-19 may target the heart muscle,

4 causing a medical condition called myocarditis, or inflammation of the heart muscle.

5 Myocarditis can affect the heart muscle and electrical system, reducing the heart’s

6 ability to pump. This reduction can lead to rapid or abnormal heart rhythms in the

7 short term, and long-term heart failure that limits exercise tolerance and the ability

8 to work.

9

11. In light of the above, an outbreak of COVID-19 could put significant

10 pressure on or exceed the capacity of local health infrastructure. In the absence of

11 a vaccine and a cure, a significant number of people who are infected with the virus

12 will die. Buttressing these concerns, it is not yet clear whether people who have

13 already been infected with COVID-19 gain immunity against future infection. To

14 the extent that the health care infrastructure is overloaded, people will die

15 unnecessarily because necessary respirators and hospital facilities are unavailable.

16

12. Public health authorities recommend a number of preventative steps to

17 help prevent or decrease the spread of COVID-19, with perhaps the most important

18 measure being social distancing. However, as the CDC and BOP both appear to

19 acknowledge, correctional facilities are inherently limited in their abilities to

20 implement such measures. For example, the BOP’s modified operating directive is

21 inadequate, in part, because it only requires social distancing “as much as

22 practicable.”11 Indeed, social distancing in ways that are recommended by public

23 health officials can be difficult, if not impossible, in prisons, placing people at risk,

24 especially when a facility is at or above population capacity. Therefore, even if the

25 conditions at Lompoc were ideal (which they are not) it would require

26

27 11 Modified Operating Directive, Federal Bureau of Prisons, available at 28 https://www.bop.gov/coronavirus/covid19_status.jsp

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1 a monumental effort to ensure the safety of prisoners and staff.

2

13. I understand the following to be allegations in the Complaint. If these

3 allegations are confirmed true, the conditions at Lompoc are deeply concerning:

4

 The Lompoc complex is comprised of Federal Correctional

5

Institution Lompoc and United States Penitentiary Lompoc.

6

USP Lompoc itself has two components, a low-security camp

7

and a medium-security prison.

8

 In total, the facilities comprising the Lompoc complex have

9

a rated design capacity of 2058. However, as of May 14, 2020,

10

they had a population of 2680, thus exceeding capacity.

11

 As of May 13, 2020, more than 1,063 prisoners and staff had

12

tested positive for COVID-19 at FCI Lompoc and USP Lompoc.

13

 At FCI Lompoc, sick people are being moved to a converted

14

warehouse in USP Lompoc. The living space there is cell-style

15

(the warehouse is itself a converted SHU), with two prisoners to

16

a cell. The warehouse is on near-total lockdown, and prisoners

17

are in their cells almost 24 hours a day. Conditions at the

18

warehouse are very unsanitary. Nobody can shower or change

19

into clean clothes due to lockdown.

20

 At the low-security camp at USP, people live in open-plan

21

dormitories with shared bathrooms. About 140 people live in

22

these dorms and sleep on bunk beds approximately 6 feet apart

23

from each other. There are no internal walls so everyone and all

24

the bunk beds are in one open space. All 140 people share six

25

toilets and six showers. Dorms are crowded and people

26

congregate in common areas. Other than when they stand in line

27

for meal packets, nobody is allowed to leave the dormitory.

28

Prisoners also have to stand in line to get medication, and there is

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3649607.2

not enough space for social distancing.  Initially, the practice appears to have been to transfer sick people
to the SHU. Some prisoners who had tested positive were left there for up to four days with no medical attention. Eventually, they re-opened two dormitories that had been closed three years ago due to mold contamination in order to house sick people. The re-opened dormitories are extremely unsanitary, and prisoners sleep on mattresses guards have scattered across the ground. Prisoners here go for up to five days at a time with no treatment for COVID-19. There is no soap, and people are not being allowed to shower.  At the medium-security prison at USP, two prisoners each are sharing cells that are normally single occupancy. It does not appear that they are bothering to pull sick people out of the prison, presumably because they are less infected due to the relative isolation. Policy seems to be to allow people to hit “rock-bottom” before being treated for COVID-19.  Inmates were only give one mask in April, and have been reusing that mask since. Hand sanitizer is non-existent and soap is not plentiful (because commissary is closed, prisoners cannot secure extra soap beyond the one bar per week they are normally issued).  It does not appear that anyone who tests positive and then “recovers” is tested again before being returned to the general population.  Prisoners are being denied regular medical treatment they had received prior to the outbreak. For example, routine procedures scheduled prior to the outbreak have been delayed indefinitely.
7 DECLARATION78OF SHAMSHER SAMRA, M.D.

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1

14. These conditions make it virtually impossible to ensure the safety of

2 prisoners who remain housed at the facility if the current course is maintained.

3 Even if the government made best efforts, effective social distancing is out of the

4 question, particularly for those inmates who are effectively forced to be in

5 a communal setting at all times due to their dormitory-style housing. Indeed, this

6 combination of factors practically ensures that all remaining prisoners will

7 eventually contract COVID-19 unless extraordinary measures are taken now. As if

8 more evidence were needed of Lompoc’s inability to ensure the safety of its

9 prisoners, more than half of them have recently tested positive for COVID-19.

10

15. Moreover, it is my understanding that BOP now contends that

11 a substantial number of the prisoners who recently tested positive have “recovered.”

12 To the extent these prisoners have actually recovered from the illness, that does not

13 absolve the need for preventive measures. In particular, it is not yet clear whether

14 people who have been infected develop immunity against future infection by

15 COVID-19.

16

16. Furthermore, if it is true that BOP is classifying prisoners as

17 “recovered” without re-testing them, that would be very problematic. Indeed, the

18 need for continued rigorous preventive measures is only heightened if BOP has not

19 relied on appropriate methods for determining whether prisoners have in fact

20 recovered. In an ideal scenario, an individual would only be deemed “recovered”

21 after testing negative. Relying instead, for instance, on patient reports of symptoms

22 may not be sufficient in a correctional setting, where prisoners may be reluctant to

23 share information with staff. Furthermore, asymptomatic individuals can still be

24 carriers of the disease. And in a large communal living space, where social

25 distancing cannot be strictly adhered to, individuals should be tested regularly in

26 order to quickly identify and isolate anyone who may contract COVID-19 before it

27 spreads through the population.

28

17. I have also reviewed a declaration submitted by Kiarra Carror, the

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1 sister of prisoner Yonnedil Carror Torres who resides at USP Lompoc. In addition

2 to some of the representations above, the declarant indicates that: (1) Torres has

3 suffered from chronic asthma since he was a child; (2) Torres resides in a cell

4 designed to house only a single person but he shares his cell with another resident,

5 including sharing a toilet; (3) for five straight days, Torres asked correctional

6 officers for medical assistance due to a fever, diarrhea, and body aches, until he

7 eventually collapsed in his cell from acute respiratory failure; (4) after every

8 prisoner on Torres’s block began banging their cell doors in unison to attract the

9 attention of correctional officers, Torres was taken to a hospital, where he was

10 placed into a medically-induced coma; (5) at the hospital, he was tested for the first

11 time for COVID-19, with the result coming back positive; (6) Torres was then

12 intubated and put on a ventilator; (7) Torres has been informed by physicians that he

13 suffered acute lung damage from COVID-19 due to his asthma and his lung capacity

14 severely deteriorated as a result; (8) Torres was briefly placed in quarantine upon

15 returning to USP Lompoc before returning to his original cell; and (9) Torres has

16 seen other prisoners similarly struggle to receive medical attention, with their

17 symptoms having to become quite severe to receive treatment.

18

18. Assuming these allegations are accurate, the health care delivery

19 system at Lompoc is failing to provide even the minimal level of acceptable care. In

20 addition to the noted failures to institute an effective regimen of social distancing,

21 these declarations highlight the failure to monitor prisoners and to treat those who

22 have become infected—and even worse, have displayed notable symptoms.

23 Torres’s account is alarming, as it shows that virtually no effort is being made at

24 Lompoc to monitor or treat prisoners, with staff instead waiting until the last minute

25 to intervene and send the prisoner to a hospital. One of the things we have already

26 learned about this disease is the benefit of early and aggressive medical intervention.

27

19. Furthermore, given the conditions depicted both in the allegations from

28 the Complaint and the two declarations, it is questionable whether the healthcare

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1 system at Lompoc is even capable of adequately responding to the dire situation it

2 now faces. In the context of a very limited healthcare system at a prison facility

3 (and possible staffing shortages due to COVID-19 outbreak among staff), the

4 inability to swiftly identify those prisoners in need of substantial and proactive

5 medical intervention and either begin an appropriate treatment regimen or transport

6 them to a civilian hospital will only cause needless pain and deaths.

7

20. In light of the above, in my opinion BOP should take immediate steps

8 to dramatically downsize the population at Lompoc, with priority given to those at

9 high risk of harm due to their age and health status and thus are likely to require a

10 disproportionate amount of medical resources. This will both allow Lompoc to

11 implement more effective preventive and treatment measures while simultaneously

12 granting released or transferred prisoners access to minimally acceptable living

13 conditions.

14

21. Perhaps most importantly, downsizing will allow for more effective

15 social distancing measures at Lompoc while simultaneously reducing the strain

16 placed on prison staff by the need to monitor and treat prisoners. Although BOP has

17 attempted to redress the overcrowding by sending certain FCI Lompoc inmates to

18 a converted warehouse, I am informed that the living conditions there are

19 unsanitary, raising questions about the suitability of the environment, especially for

20 a population grappling with a deadly novel disease. In light of the already high

21 infection rates at Lompoc, any reduction in prisoner population will also allow

22 prison staff to more closely monitor the conditions of infected prisoners for signs

23 that immediate medical intervention is required. Relatedly, the reduction in

24 population while implementing downsizing measures helps prevent overloading the

25 work of prison staff such that they can continue to ensure the safety of incarcerated

26 people.

27

22. Furthermore, immediate downsizing that prioritizes prisoners who are

28 elderly and those with underlying health conditions reduces the likelihood they will

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1 contract the disease (either for a first or subsequent time) or suffer severe medical

2 consequences as a result of being infected. Reducing the spread and severity of

3 infection in a prison slows, if not reduces, the number of people who will become ill

4 enough to require hospitalization, which in turn reduces the strain on local

5 community resources and infrastructure.

6

23. Downsizing from a facility with infection rates as high as Lompoc may

7 be done safely, minimizing the risk of increasing infection rates in the community.

8 In particular, it is imperative that prisoners be tested prior to release. But even

9 prisoners who receive confirmed diagnoses of COVID-19 may be safely released to

10 the community. If they are asymptomatic, they must be required to self-quarantine

11 and follow other recommendations of public health officials. If they are

12 experiencing symptoms, they will likely receive superior healthcare if released from

13 custody due to the present conditions at Lompoc.

14

24. The above measures, especially if implemented immediately, can slow

15 or stop the spread of infection (or re-infection) and ensure appropriate and proactive

16 treatment of infected prisoners, to the benefit of prisoners and staff and, ultimately,

17 the community at large.

18

25. In addition to downsizing, and to the extent they are not already being

19 implemented, the following steps should immediately be mandated of the

20 Respondents in order to protect any prisoners who remain in custody:

21

a. Social Distancing. The prison must ensure that prisoners are

22 able to maintain adequate social distancing during required or necessary activities,

23 such as collecting food, eating, and receiving medications.

24

b. Immediate and Continued Testing. Patients (both staff and

25 prisoners) who require testing, based on public health recommendations and the

26 opinion of a qualified medical professional, should be tested for COVID-19,

27 including to the extent public health recommendations call for continued (or repeat)

28 testing of individuals who have previously been tested.

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1

c. Immediate Screening. Defendants must be required to screen

2 each employee or other person entering the facility every day to detect fever over

3 100 degrees, cough, shortness of breath, and/or exposure to someone who is

4 symptomatic or under surveillance for COVID-19 or screening as required by public

5 health authorities. A record should be made of each screening.

6

d. Quarantine. The prison must establish non-punitive quarantine

7 for all individuals believed to have been exposed to COVID-19, but not yet

8 symptomatic, and non-punitive isolation for those believed to be infected with

9 COVID-19 and potentially infectious. Any individual who must interact with those

10 potentially or likely inflicted with COVID-19 must utilize protective equipment as

11 directed by public health authorities. In short, every possible effort must be made to

12 separate infected or potentially infected individuals from the rest of the incarcerated

13 population and each other.

14

e. Institutional Hygiene. The prison must be required to provide

15 adequate disinfection of all high-touch areas and cells.

16

f. Personal Hygiene. The prison must be required to provide hand

17 soap, disposable paper towels, and access to water to allow prisoners to wash their

18 hands on a regular basis, free of charge and ensure replacement products are

19 available as needed. Further, hand sanitizer with alcohol must be declassified

20 temporarily as contraband. Correctional staff should be allowed to carry hand

21 sanitizer with alcohol on their person, and prisoners should be allowed to use hand

22 sanitizer with alcohol when they are in locations or activities where hand washing is

23 not available. Prisoners should also be permitted daily access to showers and clean

24 laundry. Correctional officers should be required to wear personal protective

25 equipment, consistent with the CDC guidance, including masks and gloves, when

26 interacting with any person or when touching surfaces in cells or common areas.

27 Finally, correctional officers should also wash their hands, use hand sanitizer, or

28 change their gloves both before and after interacting with any person or touching

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1 surfaces in cells or common areas.

2

g. Waive Copays. There must be a waiving of copays for medical

3 evaluation and care related in any way to COVID-19 and/or its symptoms. A waiver

4 of these types of copays is necessary to avoid disincentivizing patients from

5 requesting medical treatment. Patients with symptoms of possible COVID-19 should

6 be seen quickly.

7

h. Personal Protective Equipment. Those prisoners with a cough

8 should be provided masks as soon as they inform staff of this symptom or staff

9 notice this symptom. Staff should also be required to wear facemasks, gowns or

10 other body coverings, eye protection, and gloves.

11

i. Supply Chain. The prison must be required to identify the

12 supplies and other materials upon which the institution is dependent, such as food,

13 medical supplies, certain medicines, cleaning products, etc., and prepare for

14 shortages, delays or disruptions in the supply chain.

15

26. In sum, reducing the number of individuals imprisoned at Lompoc

16 immediately is necessary for the health and safety of the prisons and our

17 communities. This population reduction should begin with the most medically

18 vulnerable which includes those over age 50 and those with CDC-defined

19 underlying health conditions.

20

I declare under penalty of perjury under the laws of the United States that the

21 foregoing is true and correct.

22

Executed May 15, 2020, at Los Angeles, California

23

24

25

26

27

28

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EXHIBIT A
85

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Shamsher Samra, MD, MPhil CURRICULUM VITAE

PERSONAL HISTORY:

Business address:
Work Phone e-mail:

Harbor-UCLA Medical Center Division of 1000 West Carson Street Torrance, California 90509 (310) 269-3923 ssamra@dhs.lacounty.gov

Home address:
Home Phone:
Date of Birth: Place of Birth: Citizenship:

27 Westminster Ave Venice, California 90291 (559) 269-3923
May 5, 1986 Los Angeles, California U.S. Citizen

EDUCATION and TRAINING:

Stanford University, Stanford, California B.S., Biological Sciences

8/04-06/07

Cambridge University, Cambridge, UK MPhil, Development Studies Gates Cambridge Fellowship

08/07-06/08

Harvard Medical School, Boston, Massachusetts MD

08/08-06/13

Harvard Kennedy School of Government Urban Policy and Human Rights

08/14-12/14

UCLA Medical Center-Olive View Medical Center Residency: Emergency Medicine

07/13-06/17

Chief Resident UCLA Medical Center-Olive View Medical Center

Residency: Emergency Medicine

07/16-06/17

LICENSURE: State of California, A134884

02/15 -

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Drug Enforcement Agency

02/15 -

Shamsher Samra MD, MPhil

CERTIFICATION:

Diplomate, American Board of Emergency Medicine

06/14/18

PROFESSIONAL EXPERIENCE:

Assistant Professor Emergency Medicine Harbor-UCLA Medical Center Los Angeles, California

08/17 -

Attending Physician Correctional Health Services Twin Towers Correctional Facility Los Angeles, California

08/17-

Medical Director Whole Person Care Reentry Department of Health Services Los Angeles, California

08/18 –

Course Director Introduction to Social Medicine UCLA David Geffen School of Medicine Los Angeles, California

09/18 –

Co-Director Trauma Recovery Center Harbor-UCLA Medical Center Torrance, California

12/17-

Co-Director Hospital Based Violence Intervention Program 3/19 Harbor-UCLA Medical Center Torrance, California

PROFESSIONAL ACTIVITIES:

Committee Services 1. UCLA International and Domestic Health Equity 2. Correctional Health Services Care Transitions 3. Whole Person Care Delivery Systems Integration 4. Whole Person Care Clinical Innovations 5. Hospital Based Violence Intervention Consortium 6. DPH Trauma Prevention Initiative 7. Harbor UCLA Diversity Committee 8. Harbor Supports Undocumented Patients 9. Los Angeles Office of Violence Prevention 10. Co- Lead Los Angeles Hospital Based Violence Intervention Consortium

Community Service

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01/17 08/17 01/18 – 06/19 01/18 – 06/19 12/18 – 06/18 – 06/18 06/18 06/19 -
06/19 -

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 88 of 189 Page ID #:313

1. Strategic Action for a Just Economy Board Member 2. Doctors for Global Health Board Member 3. Tijuana Border Wound Clinic 4. Frontline Wellness Network Founding Member 5. Southern California Physicians for Health Equity

Shamsher Samra MD, MPhil 12/13- 12/18 08/17 – 06/16 – 08/17 – 06/18 -

Professional & Scholarly Associations 1. Society for Academic Emergency Medicine 2. American College of Emergency Physicians 3. ACEP Social Emergency Medicine Section 4. SAEM Social Emergency Medicine Interest Group

10/14 10/14 – 06/17 – 01/18 -

HONORS AND SPECIAL AWARDS: 1. Gates- Cambridge Fellowship

06/07 – 06/08

RESEARCH GRANTS AND FELLOWSHIPS RECEIVED:

Public Health Institute California Bridge Program Grant Goal: Implement and study opiate treatment Role: Co- PI

02/2019-06/2020

California Community Foundation

04/2018-04/2020

Hospital Based Violence Intervention Grant

Goal: Implement a hospital-based violence intervention program

Role: Co-PI

California Victims Compensation Board Trauma Recovery Center Grant Goal: Establish a Trauma Recovery Center Role: Co-PI

04/2019-04/2021

Whole Person Care Los Angeles

06/2019-06/2021

Hospital Based Violence Intervention Grant

Goal: Expand Hospital Based Violence Intervention Programming Regionally

Role: PI

LECTURES AND PRESENTATIONS:

Local Lectures:

1. “Neurogenic Shock”

08/2015

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los

Angeles. California,

2. “Mechanical v. Traditional Chest Compressions”

05/2015

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los Angeles.

California

3. ED Based Interventions for At-Risk Drinking”

05/2016

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Shamsher Samra MD, MPhil

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los Angeles.

California, May 2016

4. Introduction to Trauma

06/2016

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los Angeles.

California

5. Course Director “Introduction to Social Medicine”

08/2017

David Geffen School of Medicine, Los Angeles California

6. Thoracic Trauma

09/2016

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los Angeles.

California

7. Care for the Homeless Patient

10/2016

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los

Angeles. California

8. Correctional Health and Primary Care Connections

01/2019

Department of Health Services Reentry Learning Collaborative, California Endowment. Los

Angeles, California

9. Health Equity and Liberation Medicine

02/2019

Harbor-UCLA Medical Center Grand Rounds, Carson California

10. Structural Vulnerability

08/2019

Harbor-UCLA Emergency Medicine Grand Rounds , Carson CA

11. Social Emergency Medicine CPC

10/2019

Harbor-UCLA Emergency Medicine Grand Rounds , Carson CA

12. Hospital Based Violence Intervention

10/2019

LAC-USC Emergency Medicine Grand Rounds, Los Angeles California

13. Community Mental Health

11/2019

Charles Drew Medical School Health Equity Course, Los Angeles California

14. Less Than Lethal Weapons

01/2020

Harbor-UCLA Emergency Medicine Grand Rounds, Carson CA

Regional Lectures:

1. Barriers to the “Right To Health” Amongst Patients of a Public

Emergency Department Following Implementation of the Affordable Care Act 03/2015

Western Regional SAEM Conference, Tucson, AZ

2. Structural Vulnerability

05/2017

Emergency Medicine All-LA Regional Conference, LAC-USC Medical Center, Los Angeles,

California

3. Craniofacial Complications

07/2017

Emergency Medicine Conference, Kaweah-Delta Hospital, Visalia, California

4. Development and Implementation of a Novel Medicaid Enrolment Process

for Correctional Health Settings.

06/2018

Southern California DII Conference. Los Angeles, California

5. Incarceration and Health

05/2019

All-LA Regional Conference, Harbor-UCLA, Los Angeles, California

6. Injuries from “Non-Lethal” Weapons

08/2019

Harbor UCLA Regional Trauma and Critical Care Conference, Carson, CA.

National Lectures:

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1. Barriers to the “Right To Health” Amongst Patients

of a Public Emergency Department Following

Implementation of the Affordable Care Act.

05/2015

National Society of Academic Emergency Medicine Conference. San Diego

2. A Case of Migrating Chest Pain

04/2016

Council of Emergency Medicine Residency Directors National Conference, Annual Lecture,

Nashville, TN

3. Craniofacial Complications

05/2017

Society of Academic Emergency Medicine Conference, Orlando FL

4. Undocumented Emergency Department Patients: We Can Do Better

05/2018

National Society of Academic Emergency Medicine Conference. Indianapolis

5. Migrant Heath and Liberation Medicine

12/2018

Second Annual Health of Migrants Conference. Galveston, Texas.

6. Health Equity and Emergency Medicine: A Perfect Fit

05/2019

Society of Academic Emergency Medicine Conference, Las Vegas NV

7. Leveraging Community Health Workers to Improve Population Health

06/2019

Americas Essential Hospitals Vitals Conference, Miami FL

8. Breaking the Cycle: Hospital Based Violence Intervention

06/2019

Americas Essential Hospitals Vitals Conference, Miami FL

International Lectures:

1. Discapacidad: Trauma de Sistema Nervioso Central: Lesiones del Cerebro y Medula Espinal Pre-hospital Training Program. Managua, Nicaragua.

02/2017

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Shamsher Samra MD, MPhil
PUBLICATIONS/BIBLIOGRAPHY:
RESEARCH PAPERS
A. Research Papers - Peer Reviewed 1. Hale MB, Krutzik PO, Samra SS, Crane JM, Nolan GP, 2009 Stage Dependent Aberrant Regulation of Cytokine-STAT Signaling in Murine Systemic Lupus Erythematosus. PLoS ONE 4(8): e6756. doi:10.1371/journal.pone.000675 2. Samra SS, Crowley J, Fawsi M, 2011 The right to water in rural Punjab: Assessing equitable access to water in the context of the ongoing Punjab Rural Water Supply Project. Health and Human Rights Journal. Volume 13, No. 2. 3. Samra, SS et al. “Barriers to the Right to Health Among Patients of a Public Emergency Department After Implementation of the Affordable Care Act.” Health equity vol. 3,1 186-192. 2 May. 2019, doi:10.1089/heq.2018.0071 4. Samra, SS, Taira, B., Pinheiro, E., Trotzky-Sirr, R., & Schneberk, T. (2019). Undocumented Patients in the Emergency Department: Challenges and Opportunities. Western Journal of Emergency Medicine: Integrating Emergency Care with Population Health.
B. Research Papers - Peer Reviewed (In Press) 5. Saadi A, Cheffers ML, Taira B, Trotzky-Sirr R, Parmar P, Samra SS, Morrison JL, Shah S, Schneberk TW, “Building Immigration-Informed, Cross-Sector Coalitions: Findings from the Los Angeles County Health Equity for Immigrants Summit,” Health Equity

EDITORIALS 1. Maciag K, Samra SS, Sorscher SS. Harvard as Big Pharma. The Harvard Crimson.

03/2009

ABSTRACTS 1. Samra SS, Taira B, Richman, M, McCullough. “Barriers to the “Right To Health” Amongst Patients of a Public Emergency Department Following Implementation of the Affordable Care Act.” Western Regional Society of Academic Emergency Medicine Conference, Tucson, AZ, March 2015 2. Samra SS, Taira B, Richman, M, McCullough. “Barriers to the “Right To Health” Amongst Patients of a Public Emergency Department Following Implementation of the Affordable Care Act.” National Society of Academic Emergency Medicine Conference. San Diego, May 2015 3. Samra SS, Taira B, Hseih D, Schneberk, T. “Undocumented Emergency Department Patients: We Can Do Better” National Society of Academic Emergency Medicine Conference. Indianapolis, Indiana , May 2018 4. Taira, B, Torres, J, Nguyen, A, Samra SS. “Emergency Department Provider Knowledge of and Preferences for Language Assistance for the Care of Limited English Proficiency Patient” National Society of Academic Emergency Medicine Conference. Indianapolis, Indiana , May 2018 5. Schneberk T, Samra SS. “Creation of a novel medico-legal conduit to assist undocumented individuals presenting to the Emergency Department to address immigration legal needs” National Society of Academic Emergency Medicine Conference. Indianapolis, Indiana , May 2018

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Shamsher Samra MD, MPhil 6. Hsieh D, Samra SS, “Development and Implementation of a Novel Medicaid Enrolment
Process for Correctional Health Settings.” Southern California Dissemination, Implementation, and Improvement Conference. Los Angeles, California. June 2018 7. Terao N, Hsieh D, Samra SS, Salas A, Murray J, Deane M, Carrillo P. “Implementing an Effective Hospital-Based Violence Intervention Program at a Los Angeles County Trauma Center” Southern California Dissemination, Implementation, and Improvement Conference. Los Angeles, California. June 2018 8. Kiwon Yoo, MPH, Shamsher Samra, MD, MPhil, Karen Bernstein, MPH and Dennis Hsieh, MD, JD, Reducing Morbidity, Mortality, and Recidivism for Jail and Prison Re-Entry Patients: The Los Angeles County Whole Person Care Re-Entry Program. American Public Health Association Conference 2019 9. Susie Lee, Dennis Hsieh, MD, JD, Shamsher Samra, MD, MPhil, Clemens Hong, MD, MPH, Henna Zaidi, MPP, MPH and Sasha Rumburg. Longitudinal Patient Accompaniment Services by Community Health Workers (CHWs): Improving Coordination of Primary Care Services (PCS) for High-Risk Populations in Los Angeles County. American Public Health Association Conference 2019 10. Natalie Terao, MD, MS, Dennis Hsieh, MD, JD, Shamsher Samra, MD, MPhil, Brittney Mull, MD, MPH, Joseph Friedman, MPH, Tony Kuo, MD, MSHS, Noel Barragan, MPH, Molly Deanne, MD, Antoinette Salas, RN, BSN, MICN, Arcelia Tavarez, Paul Carrillo and Jennifer Murray, MSW, LCSW. Implementation and Evaluation of a Hospital-Based Violence Intervention Program at a Los Angeles County Trauma Center. American Public Health Association Conference 2019 11. Shamsher Samra, MD, MPhil, Dennis Hsieh, MD, JD, Karen Bernstein, MPH and Kiley Hoffman, MSW. Expansion of a Jail Based Primary Care Reentry Program. American Public Health Association Conference 2019 12. Tony Kuo, MD, MSHS, Noel Barragan, MPH, Shamsher Samra, MD, MPhil and Rochelle Dicker, MD. Population Health Perspective on Violence Prevention in the Hospital Setting: Intervening During a “Teachable Moment” in a Victim’s Life. American Public Health Association Conference 2019 13. Joseph Friedman, MPH, Shamsher Samra, MD, MPhil, Dennis Hsieh, MD, JD, Vincent Chong, MD, MS, Lee Plantmason, MD, Todd Schneberk, MD, MSHPM, MA, Karen Kwaning, Molly Deanne, MD, Brittney Mull, MD, Philippe Bourgois, PhD and Rochelle Dicker, MD. Racial and Geographic Disparities in Violent Injury Rates: A Baseline Assessment for a Los Angeles Hospital-Based Violence Intervention Program. American Public Health Association Conference 2019 14. Dennis Hsieh, MD, JD, Shamsher Samra, MD, MPhil, Kiwon Yoo, MPH, Karen Bernstein, MPH and Mark Burstyn, Pharm.D. Providing a 30 Day Supply of Medications upon Discharge from Los Angeles County Jails. American Public Health Association Conference 2019
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EXHIBIT 8
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1

DECLARATION OF MARC STERN, M.D.

2

I, Marc Stern, declare as follows:

3

1. I am a physician, board-certified in internal medicine, specializing in

4 correctional health care. I most recently served as the Assistant Secretary for Health

5 Care at the Washington State Department of Corrections. I served for four years as

6 a medical subject matter expert for the Officer of Civil Rights and Civil Liberties,

7 U.S. Department of Homeland Security, and as a medical subject matter expert for

8 one year for the California Attorney General’s division responsible for monitoring

9 the conditions of confinement in Immigration and Customs Enforcement (ICE)

10 detention facilities. I am a court-appointed medical expert in the class action

11 Parsons v. Ryan, CV-12-00601-PHX-ROS. Currently, I am the Medical Advisor for

12 the National Sheriffs’ Association on matters related to preventive measures

13 responding to COVID-19. Additionally, in 2009, at the request of the California

14 Receiver Clark Kelso, I toured 10 California state prisons to assess whether or not

15 the Receiver’s assignment—to restore the delivery of health services within the

16 California state prisons to constitutionally adequate levels – had been completed.

17 Attached as Exhibit A is a copy of my curriculum vitae.

18

2. COVID-19 is a serious disease that has reached pandemic status, and is

19 straining the health care systems around the world. As of May 15, 2020, at least

20 1.3 million people in the United States had received confirmed diagnoses of

21 COVID-19. At least 83,000 people have died in the United States. Approximately

22 71,000 of the confirmed cases were in California, with more than 2,900 having died.

23 These numbers will continue to increase, perhaps exponentially. Moreover, these

24 figures must be considered in light of nationwide shortages of COVID-19 tests,

25 meaning the actual numbers are likely significantly higher than those reported.

26

3. The Lompoc complex (“Lompoc”) is comprised of Federal

27 Correctional Institution Lompoc (“FCI Lompoc”) and United States Penitentiary

28 Lompoc (“USP Lompoc”). USP Lompoc itself has two components, a low-security

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1 camp and a medium-security prison. In total, the facilities have a rated design

2 capacity of 2058. However, as of May 15, 2020 they had a total population of 2680,

3 thus exceeding capacity. As of May 15, 2020, there are a total of 924 people at FCI

4 Lompoc who are currently or were recently positive for COVID-19, including 870

5 residents and 14 staff currently deemed positive, and 37 residents reported as being

6 “recovered” after previously testing positive. As of May 15, there are a total of 140

7 people at USP Lompoc who are currently or were recently positive for COVID-19,

8 including 15 residents and 16 staff currently deemed positive, two resident deaths,

9 and 101 residents reported as being “recovered” after previously testing positive.

10 The BOP website does not show what criteria it is using to consider someone

11 “recovered.”

12

4. COVID-19 is a novel respiratory virus. It is spread primarily through

13 droplets generated when an infected person coughs or sneezes, or through droplets

14 of saliva or discharge from the nose. There is no vaccine for COVID-19, and there is

15 no cure for COVID-19. No one has prior immunity. The only way to control the

16 virus is to use preventive strategies, including social distancing.

17

5. The time course of the disease can be very rapid. Individuals can show

18 the first symptoms of infection in as few as two days after exposure and their

19 condition can seriously deteriorate in as few as five days (perhaps sooner) after that.

20 It is believed that people can transmit the virus without being symptomatic and,

21 indeed, that a significant amount of transmission may be from people who are

22 infected but asymptomatic or pre-symptomatic.

23

6. Treatment for serious cases of COVID-19 requires immediate and

24 substantial medical intervention.

25

7. The effects of COVID-19 are especially serious for people who are

26 most vulnerable. Vulnerable people include people over the age of 50, and those of

27 any age with underlying health problems such as—but not limited to—weakened

28 immune systems (which can be caused by a variety of conditions, including but not

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1 limited to cancer treatment, smoking, and immune weakening medications),

2 moderate to severe asthma, diabetes, serious heart and lung disease, severe obesity,

3 liver disease, and possibly pregnancy. While the CDC typically classifies only

4 people 65 and older as vulnerable, incarcerated individuals tend to be in poorer

5 health than those in the general population, justifying the use of an earlier cutoff in

6 classifying people deemed vulnerable to COVID-19.

7

8. In light of the above, an outbreak of COVID-19 could put significant

8 pressure on or exceed the capacity of local health infrastructure. In the absence of

9 a vaccine and a cure, a significant number of people who are infected with the virus

10 will die. Buttressing these concerns, it is not yet clear whether people who have

11 already been infected with COVID-19 gain immunity against future infection. To

12 the extent that the health care infrastructure is overloaded, people will die

13 unnecessarily because necessary respirators and hospital facilities are unavailable.

14

9. Public health authorities recommend a number of preventive steps to

15 help prevent or decrease the spread of COVID-19, with perhaps the most important

16 measure being social distancing.

17

10. Prisons are congregate environments, i.e., places where people live and

18 sleep in close proximity. Many people live in dormitory-style units with multiple

19 rows of bunk beds close together or in small multi-person cells that often surround

20 common areas where incarcerated people crowd together during the day. Social

21 distancing in ways that are recommended by public health officials can be difficult,

22 if not impossible, in prisons, even when the population is under design capacity.

23 When prisons are at or above capacity, it becomes even more difficult to implement

24 appropriate social distancing measures.

25

11. Infectious diseases that are transmitted via the air or touch (like

26 COVID-19) are more likely to spread, placing people at risk. For these reasons, if—

27 but more likely when—COVID-19 is introduced into a prison, the risks of spread is

28 greatly, if not exponentially, increased as already evidenced by spread of COVID-19

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1 in two other congregate environments: nursing homes and cruise ships.

2

12. But prisons actually have an attribute that makes them more dangerous

3 than cruise ships. Unlike cruise ships, prisons are not closed systems. Staff, new

4 detainees, attorneys, and inanimate objects—all potential vectors for virus—are

5 introduced into the system every day. Thus, even if the government makes best

6 efforts to follow preventive guidelines, the introduction of virus into a detention

7 center is almost inevitable. Moreover, because staff and some visitors travel each

8 day from the facilities back to their homes, when infection develops in the facility,

9 there is also significant risk that the infection will be transmitted outside the facility,

10 to the family and friends of staff and visitors. In short, the risks that confront

11 individuals at detention facilities such as Lompoc stem from their very nature as

12 congregate environments. Even if the healthcare provided were excellent, there

13 would still be substantial risk; if the healthcare provided were substandard, those

14 substantial risks are only elevated.

15

13. I understand the following to be allegations in the Complaint. If these

16 allegations are confirmed true, the conditions at Lompoc are deeply concerning:

17

 In total, the facilities comprising the Lompoc complex have

18

a rated design capacity of 2058. However, as of May 14, 2020,

19

they had a population of 2680, thus exceeding capacity.

20

 As of May 14, 2020, more than 1,061 residents and staff had

21

tested positive for COVID-19.

22

 Sick people from FCI Lompoc are being moved to living unit at

23

USP Lompoc. The living space there is double-occupancy cells.

24

The living unit is on near-total lockdown with residents confined

25

to their cells almost 24 hours a day. Conditions are very

26

unsanitary. Nobody can shower or change into clean clothes.

27

 At the low-security camp at USP Lompoc, people live in open-

28

plan dormitories with shared bathrooms. About 140 people live

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3649756.2

in these dormitories and sleep on bunk beds approximately six feet apart from each other. There are no internal walls so everyone and all the bunk beds are in one open space. All 140 people share six toilets and six showers. Dormitories are crowded and people congregate in common areas. Residents also have to stand in line to get medication, and there is not enough space for social distancing.  Initially, the practice appears to have been to transfer sick people to the solitary confinement unit. Some residents who had tested positive were left there for up to four days with no medical attention. Eventually, prison authorities re-opened two dormitories which had been closed three years ago due to mold contamination in order to house sick people. The re-opened dormitories are extremely unsanitary, and residents sleep on mattresses officers have scattered across the ground. Residents here spend up to five days at a time with no treatment for COVID-19. There is no soap, and people are not being allowed to shower.  At the medium-security prison at USP, two residents share cells that are normally single-occupancy. Residents who become ill with presumptive COVID-19 are not isolated from the healthy population. The current prison practice seems to be to allow people to hit “rock-bottom” before being treated for COVID-19.  Residents were only give one mask in April, and have been reusing that mask since. Hand sanitizer is non-existent and soap is not plentiful.  It does not appear that anyone who tests positive and then “recovers” is tested again before being returned to the general
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1

population.

2

 Residents are being denied regular medical treatment they had

3

received prior to the outbreak. For example, medically necessary

4

procedures scheduled prior to the outbreak have been delayed

5

indefinitely.

6

14. These conditions, if true—a track record of not being able to prevent

7 predictable and widespread infection, continued widespread infection, unsanitary

8 living conditions, inadequate testing, and most importantly overcrowding—make it

9 exceedingly difficult, if not impossible, to ensure the safety of residents who remain

10 housed at the facility. In particular, these conditions mean that social distancing is

11 very difficult, if not impossible, to effectively implement.

12

15. I have also reviewed a declaration submitted by Kiarra Carror, the

13 sister of Yonnedil Carror Torres, a resident of USP Lompoc. In addition to some of

14 the representations above, the declarant indicates that: (1) Torres resides in a cell

15 designed to house only a single person but he shares his cell with another resident,

16 including sharing a toilet; (2) For five straight days, Torres asked correctional

17 officers for medical assistance due to a fever, diarrhea, and body aches, until he

18 eventually collapsed in his cell from acute respiratory failure; (3) After every

19 resident on Torres’s block began banging their cell doors in unison to attract the

20 attention of correctional officers, Torres was taken to a hospital, where he was

21 placed into a medically-induced coma after being placed on a ventilator; (4) At the

22 hospital, he was tested for the first time for COVID-19, with the result coming back

23 positive; (5) Torres has been informed by physicians that he suffered acute lung

24 damage from COVID-19 due to his asthma and his lung capacity severely

25 deteriorated as a result; and (6) Torres has seen other residents similarly struggle to

26 receive medical attention, with their symptoms having to become quite severe to

27 receive treatment.

28

16. I cannot draw any conclusions from a single second-hand report.

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1 However, if these allegations were found to be accurate, and if they were found to

2 be representative of the system of health care delivery operating at USP Lompoc

3 and FCI Lompoc, I would likely draw the following conclusions: (1) Lompoc

4 operators are exposing residents to a significant risk of harm by ensuring that

5 residents cannot socially distance. (2) The health care delivery system at Lompoc is

6 currently unable to provide minimally safe health care, i.e., the current system poses

7 a significant risk of serious harm to residents, a risk that will only increase as more

8 residents become symptomatic from COVID-19 or the condition of symptomatic

9 residents deteriorates as their disease progresses. Indeed, Torres’s sister’s account is

10 alarming, as she claims that Lompoc staff refused her brother treatment until his

11 condition was at a critical stage, at which point they finally sent him to a hospital for

12 medically necessary treatment.

13

17. If the second conclusion above were true, I would need more

14 information through discovery to determine the cause(s). However, based on my

15 experience operating, evaluating, and monitoring correctional health care systems, it

16 would likely be the result of one or more of the following factors: insufficient

17 number of staff; inappropriate types of staff (for example, using licensed vocational

18 nurses, performing beyond their licensed scope of practice, to carry out the duties of

19 a registered nurse); insufficient training; and insufficient supervision.

20

18. For these reasons, I recommend consideration of a concerted effort to

21 downsize the population of Lompoc to the lowest number possible immediately,

22 with priority given to those at high risk of harm due to their age and health status.

23 This will both allow Lompoc to implement more effective preventive and treatment

24 measures while simultaneously granting released or transferred residents access to

25 minimally acceptable living conditions. To maximize their effectiveness in reducing

26 the spread and impact of the virus at Lompoc, these downsizing measures must be

27 implemented now.

28

19. There are two values to immediate downsizing. First, downsizing will

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1 reduce Lompoc’s density of congregation. This will allow people in prison to

2 maintain better social distancing. The reduction in population will also make it

3 easier for prison authorities to implement infection prevention measures such as:

4 provision of cleaning supplies to residents; frequent laundering of towels and

5 clothes; provision of soap for handwashing; frequent cleaning of transactional

6 surfaces; etc. Furthermore, downsizing will allow prison health care professionals to

7 devote their attention to a smaller number of residents, potentially improving the

8 quality of care those residents receive. At any prison it is beneficial to conserve

9 medical resources in the face of a pandemic such as the one we presently face. All

10 these steps can slow or stop the spread of infection (or re-infection) and improve

11 treatment outcomes if they are currently inadequate, to the benefit of residents and

12 staff and, ultimately, the community at large.

13

20. Second, immediate downsizing that prioritizes residents who are

14 elderly and those with underlying health conditions reduces the likelihood they will

15 contract the disease or suffer severe medical consequences as a result of being

16 infected. Individuals in these groups are at the highest risk of severe complications

17 from COVID-19 and when they develop severe complications they will be

18 transported to community hospitals. Reducing the spread and severity of infection in

19 a prison slows, if not reduces, the number of people who will become ill enough to

20 require hospitalization where they will be using scarce community resources (ER

21 beds, general hospital beds, ICU beds) which also in turn reduces the health and

22 economic burden to the local community at large. Indeed, in light of the new reality

23 in which we operate, decisions to release residents from custody—traditionally

24 concerned primarily with public safety—must also take into account the impact on

25 public health. It is for this reason that release or transfer1 of at-risk residents not only

26

27 1 Transfer is only acceptable if the transfer itself does not pose significant risks and
28 is a transfer to another facility where the quality of health care and COVID-19

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1 reduces their risk of death, but also increases public safety when the impact on

2 public health is also considered.

3

21. Residents who have received confirmed diagnoses of COVID-19 in

4 most cases may be safely released to the community, where they can quarantine or

5 isolate at home. To the extent that the quality of care these residents currently

6 receive is inadequate, release would also ensure that residents have access to better

7 health care.

8

22. In addition to the downsizing described above, and to the extent they

9 are not already being implemented, the following steps should immediately be

10 mandated of the Respondents in order to protect any residents who remain in

11 custody:

12

a. Social Distancing. The prison must ensure that residents are able

13 to maintain adequate social distancing during required or necessary activities, such

14 as collecting food, eating, and receiving medications.

15

b. Immediate and Continued Testing. Patients (both staff and

16 residents) who require testing (or re-testing) based on public health

17 recommendations and the opinion of a qualified medical professional, should be

18 tested for COVID-19.

19

c. Immediate Screening. Defendants must be required to screen

20 each employee or other person entering the facility every day to detect fever over

21 100 degrees, cough, shortness of breath, other symptoms as currently recommended

22 by CDC, and exposure to someone who is symptomatic or under surveillance for

23 COVID-19, or screening as required by public health authorities. A record should be

24 made of each screening.

25

d. Quarantine. The prison must establish non-punitive quarantine

26 for all individuals believed to have been exposed to COVID-19, but not yet

27 28 precautions are safe.

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1 symptomatic, and non-punitive isolation for those believed to be infected with

2 COVID-19 and potentially infectious. Any individual who must interact with those

3 potentially or likely inflicted with COVID-19 must utilize protective equipment as

4 directed by public health authorities. In short, every possible effort must be made to

5 separate infected or potentially infected individuals from the rest of the incarcerated

6 population and each other.

7

e. Post-Isolation or Quarantine. Individuals should only be released

8 from quarantine or isolation in accordance with CDC guidelines as modified by

9 local public health authorities, after which they should be monitored in accordance

10 with those same guidelines.

11

f. Institutional Hygiene. The prison must be required to provide

12 adequate disinfection of all high-touch areas and cells.

13

g. Personal Hygiene. The prison must be required to provide hand

14 soap, disposable paper towels, and access to water to allow residents to wash their

15 hands on a regular basis, free of charge and ensure replacement products are

16 available as needed. Correctional staff should be allowed to carry hand sanitizer

17 with alcohol on their person, and residents should be allowed to use hand sanitizer

18 with alcohol when they are in locations or activities where hand washing is not

19 available. Correctional officers should be required to wear personal protective

20 equipment and perform hand hygiene when appropriate, consistent with the CDC

21 guidance as modified by local health authorities

22

h. Waive Copays. There must be a waiving of copays for medical

23 evaluation and care related in any way to COVID-19 and/or its symptoms. A waiver

24 of these types of copays is necessary to avoid disincentivizing patients from

25 requesting medical treatment. Patients with symptoms of possible COVID-19 should

26 be seen quickly.

27

i. Access to Care. All residents should have timely access to an

28 appropriately qualified health care professional.

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1

j. Personal Protective Equipment. Those residents with a cough

2 should be provided masks as soon as they inform staff of this symptom or staff

3 notice this symptom.

4

k. Supply Chain. The prison must be required to identify the

5 supplies and other materials upon which the institution is dependent, such as food,

6 medical supplies, certain medicines, cleaning products, etc., and prepare for

7 shortages, delays or disruptions in the supply chain.

8

23. Thus, in summary, consideration should be given to immediately

9 reducing the number of individuals imprisoned at Lompoc for the health and safety

10 of the prisons and our communities, taking into account the totality of risk posed to

11 the public safety by each individual. This population reduction should begin with

12 the most medically vulnerable which includes those over age 50 and those with

13 CDC-defined underlying health conditions.

14

I declare under penalty of perjury under the laws of the United States that the

15 foregoing is true and correct.

16

Executed May 15, 2020, at Tumwater, Washington.

17

18 Marc F. Stern. M.D., M.P.H.
19

20

21

22

23

24

25

26

27

28

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EXHIBIT A
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MARC F. STERN, M.D., M.P.H., F.A.C.P.

May, 2020

marcstern@live.com +1 (360) 701–6520

SUMMARY OF EXPERIENCE

CORRECTIONAL HEALTH CARE CONSULTANT

2009 – PRESENT

Consultant in the design, management, and operation of health services in a correctional setting to assist in evaluating, monitoring, or providing evidence-based, cost-effective care consistent with constitutional mandates of quality.

Current activities include:  COVID-19 Medical Advisor, National Sheriffs Association (2020 - )
 Advisor to various jails in Washington State on patient safety, health systems, and related health care and custody staff activities and operations, and RFP and contract generation (2014 - )
 Consultant to the US Department of Justice, Civil Rights Division, Special Litigation Section. Providing investigative support and expert medical services pursuant to complaints regarding care delivered in any US jail, prison, or detention facility. (2010 - ) (no current open cases)
 Physician prescriber/trainer for administration of naloxone by law enforcement officers for the Olympia, Tumwater, Lacey, Yelm, and Evergreen College Police Departments (2017 - )
 Consultant to the Civil Rights Enforcement Section, Office of the Attorney General of California, under SB 29, to review the healthcare-related conditions of confinement of detainees confined by Immigration and Customs Enforcement in California facilities (2017 - )
 Rule 706 Expert to the Court, US District Court for the District of Arizona, in the matter of Parsons v. Ryan (2018 - )

Previous activities include:  Consultant to Human Rights Watch to evaluate medical care of immigrants in Homeland Security detention (2016 -
2018)
 Consultant to Broward County Sheriff to help develop and evaluate responses to a request for proposals (2017 2018)
 Member of monitoring team (medical expert) pursuant to Consent Agreement between US Department of Justice and Miami-Dade County (Unites States of America v Miami-Dade County, et al.) regarding, entre outre, unconstitutional medical care. (2013 - 2016)
 Jointly appointed Consultant to the parties in Flynn v Walker (formerly Flynn v Doyle), a class action lawsuit before the US Federal District Court (Eastern District of Wisconsin) regarding Eighth Amendment violations of the health care provided to women at the Taycheedah Correctional Institute. Responsible for monitoring compliance with the medical component of the settlement. (2010 - 2015)
 Consultant on “Drug-related Death after Prison Release,” a research grant continuing work with Dr. Ingrid Binswanger, University of Colorado, Denver, examining the causes of, and methods of reducing deaths after release from prison to the community. National Institutes of Health Grant R21 DA031041-01. (2011 - 2016)
 Consultant to the US Department of Homeland Security, Office for Civil Rights and Civil Liberties. Providing investigative support and expert medical services pursuant to complaints regarding care received by immigration detainees in the custody of U.S. Immigration and Customs Enforcement. (2009 - 2014)
 Special Master for the US Federal District Court (District of Idaho) in Balla v Idaho State Board of Correction, et al., a class action lawsuit alleging Eighth Amendment violations in provision of health care at the Idaho State Correctional Institution. (2011 - 2012)
 Facilitator/Consultant to the US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, providing assistance and input for the development of the first National Survey of Prisoner Health. (2010-2011 )
 Project lead and primary author of National Institute of Corrections’ project entitled “Correctional Health Care Executive Curriculum Development,” in collaboration with National Commission on Correctional Health Care. NIC commissioned this curriculum for its use to train executive leaders from jails and prisons across the nation to better manage the health care missions of their facilities. Cooperative Agreement 11AD11GK18, US Department of Justice, National Institute of Corrections. (2011 - 2015 )

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 Co-teacher, with Jaye Anno, Ph.D., for the National Commission on Correctional Health Care, of the Commission’s standing course, An In-Depth Look at NCCHC’s 2008 Standards for Health Services in Prisons and Jails taught at its national meetings. (2010 - 2013)
 Contributor to 2014 Editions of Standards for Health Services in Jails and Standards for Health Services in Prisons, National Commission on Correctional Health Care. (2013)
 Consultant to the California Department of Corrections and Rehabilitation court-appointed Receiver for medical operations. Projects included: o Assessing the Receiver’s progress in completing its goal of bringing medical care delivered in the Department to a constitutionally mandated level. (2009) o Providing physician leadership to the Telemedicine Program Manager tasked with improving and expanding the statewide use of telemedicine. (2009)
 Conceived, co-designed, led, and instructed in American College of Correctional Physicians and National Commission on Correctional Health Care’s Medical Directors Boot Camp (now called Leadership Institute), a national training program for new (Track “101”) and more experienced (Track “201”) prison and jail medical directors. (2009 - 2012)
 Participated as a member of a nine-person Delphi expert consensus panel convened by Rand Corporation to create a set of correctional health care quality standards. (2009)
 Convened a coalition of jails, Federally Qualified Health Centers, and community mental health centers in ten counties in Washington State to apply for a federal grant to create an electronic network among the participants that will share prescription information for the correctional population as they move among these three venues. (2009 2010)
 Participated as a clinical expert in comprehensive assessment of Michigan Department of Corrections as part of a team from the National Commission on Correctional Health Care. (2007)
 Provided consultation to Correctional Medical Services, Inc., St. Louis (now Corizon), on issues related to development of an electronic health record. (2001)
 Reviewed cases of possible professional misconduct for the Office of Professional Medical Conduct of the New York State Department of Health. (1999 – 2001)
 Advised Deputy Commissioner, Indiana State Board of Health, on developing plan to reduce morbidity from chronic diseases using available databases. (1992)
 Provided consultation to Division of General Medicine, University of Nevada at Reno, to help develop a new clinical practice site combining a faculty practice and a supervised resident clinic. (1991)

OLYMPIA BUPRENORPHINE CLINIC, OLYMPIA, WASHINGTON

2019 - PRESENT

Volunteer practitioner at a low-barrier clinic to providing Medication Assisted Treatment (buprenorphine) to opioid dependent individuals wishing to begin treatment, until they can transition to a long-term treatment provider

OLYMPIA FREE CLINIC, OLYMPIA, WASHINGTON

2017 - PRESENT

Volunteer practitioner providing episodic care at a neighborhood clinic which provides free care to individuals without health insurance until they can find a permanent medical home

OLYMPIA UNION GOSPEL MISSION CLINIC, OLYMPIA, WASHINGTON

2009 – 2014

Volunteer practitioner providing primary care at a neighborhood clinic which provides free care to individuals without health insurance until they can find a permanent medical home; my own patient panel within the practice focuses on individuals recently released jail and prison.

WASHINGTON STATE DEPARTMENT OF CORRECTIONS

2002 – 2008

Assistant Secretary for Health Services/Health Services Director, 2005 – 2008 Associate Deputy Secretary for Health Care, 2002 – 2005

Responsible for the medical, mental health, chemical dependency (transiently), and dental care of 15,000 offenders in total confinement. Oversaw an annual operating budget of $110 million and 700 health care staff.
 As the first incumbent ever in this position, ushered the health services division from an operation of 12 staff in headquarters, providing only consultative services to the Department, to an operation with direct authority and

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responsibility for all departmental health care staff and budget. As part of new organizational structure, created and filled statewide positions of Directors of Nursing, Medicine, Dental, Behavioral Health, Mental Health, Psychiatry, Pharmacy, Operations, and Utilization Management.
 Significantly changed the culture of the practice of correctional health care and the morale of staff by a variety of structural and functional changes, including: ensuring that high ethical standards and excellence in clinical practice were of primordial importance during hiring of professional and supervisory staff; supporting disciplining or career counseling of existing staff where appropriate; implementing an organizational structure such that patient care decisions were under the final direct authority of a clinician and were designed to ensure that patient needs were met, while respecting and operating within the confines of a custodial system.
 Improved quality of care by centralizing and standardizing health care operations, including: authoring a new Offender Health Plan defining patient benefits based on the Eighth Amendment, case law, and evidence-based medicine; implementing a novel system of utilization management in medical, dental, and mental health, using the medical staffs as real-time peer reviewers; developing a pharmacy procedures manual and creating a Pharmacy and Therapeutics Committee; achieving initial American Correctional Association accreditation for 13 facilities (all with almost perfect scores on first audit); migrating the eight individual pharmacy databases to a single central database.
 Blunted the growth in health care spending without compromising quality of care by a number of interventions, including: better coordination and centralization of contracting with external vendors, including new statewide contracts for hospitalization, laboratory, drug purchasing, radiology, physician recruitment, and agency nursing; implementing a statewide formulary; issuing quarterly operational reports at the state and facility levels.
 Piloted the following projects: direct issuance of over-the-counter medications on demand through inmates stores (commissary), obviating the need for a practitioner visit and prescription; computerized practitioner order entry (CPOE); pill splitting; ER telemedicine.
 Oversaw the health services team that participated variously in pre-design, design, or build phases of five capital projects to build complete new health units.

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

2001 – 2002

Regional Medical Director, Northeast Region, 2001 – 2002
Responsible for clinical oversight of medical services for 14,000 offenders in 14 prisons, including one (already) under court monitoring.  Oversaw contract with vendor to manage 60-bed regional infirmary and hospice.  Coordinated activities among the Regional Medical Unit outpatient clinic, the Albany Medical College, and the 13
feeder prisons to provide most of the specialty care for the region.  Worked with contracting specialists and Emergency Departments to improve access and decrease medical out-trips
by increasing the proportion of scheduled and emergency services provided by telemedicine.  Provided training, advice, and counseling to practitioners and facility health administrators in the region to improve
the quality of care delivered.

CORRECTIONAL MEDICAL SERVICES, INC. (now CORIZON)

2000 – 2001

Regional Medical Director, New York Region, 2000 – 2001
Responsible for clinical management of managed care contract with New York State Department of Correctional Services to provide utilization management services for the northeast and northern regions of New York State and supervision of the 60-bed regional infirmary and hospice.
 Migrated the utilization approval function from one of an anonymous rule-based “black box” to a collaborative evidence-based decision making process between the vendor and front-line clinicians.

MERCY INTERNAL MEDICINE, ALBANY, NEW YORK Neighborhood three-physician internal medicine group practice. Primary Care Physician, 1999 – 2000 (6 months) Provided direct primary care to a panel of community patients during a period of staff shortage.

1999 – 2000

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ALBANY COUNTY CORRECTIONAL FACILITY, ALBANY, NEW YORK

1998 – 1999

Acting Facility Medical Director, 1998 – 1999

Directed the medical staff of an 800 bed jail and provided direct patient care following the sudden loss of the Medical Director, pending hiring of a permanent replacement. Coordinated care of jail patients in local hospitals. Provided consultation to the Superintendent on improvements to operation and staffing of medical unit and need for privatization.

VETERANS ADMINISTRATION MEDICAL CENTER, ALBANY, NY

1992 – 1998

Assistant Chief, Medical Service, 1995 – 1998 Chief, Section of General Internal Medicine and Emergency Services, 1992 – 1998
Responsible for operation of the general internal medicine clinics and the Emergency Department.
 Designed and implemented an organizational and physical plant makeover of the general medicine ambulatory care clinic from an episodic-care driven model with practitioners functioning independently supported by minimal nursing involvement, to a continuity-of-care model with integrated physician/mid-level practitioner/registered nurse/licensed practice nurse/practice manager teams.
 Led the design and opening of a new Emergency Department.
 As the VA Section Chief of Albany Medical College’s Division of General Internal Medicine, coordinated academic activities of the Division at the VA, including oversight of, and direct teaching in, ambulatory care and inpatient internal medicine rotations for medical students, residents, and fellows. Incorporated medical residents as part of the general internal medicine clinics. Awarded $786,000 Veterans Administration grant (“PRIME I”) over four years for development and operation of educational programs for medicine residents and students in allied health professions (management, pharmacy, social work, physician extenders) wishing to study primary care delivery.

ERIE COUNTY HEALTH DEPARTMENT, BUFFALO, NY

1988 – 1990

Director of Sexually Transmitted Diseases (STD) Services, 1989 – 1990 Staff Physician, STD Clinic, 1988 – 1989 Staff Physician, Lackawanna Community Health Center, 1988 – 1990
Provided leadership and patient care services in the evaluation and treatment of STDs. Successfully reorganized the county’s STD services which were suffering from mismanagement and were under public scrutiny. Provided direct patient care services in primary care clinic for underserved neighborhood.

UNION OCCUPATIONAL HEALTH CENTER, BUFFALO, NY Staff Physician, 1988 – 1990 Provided direct patient care for the evaluation of occupationally-related health disorders.

1988 – 1990

VETERANS ADMINISTRATION MEDICAL CENTER, BUFFALO, NY

1985 – 1990

Chief Outpatient Medical Section and Primary Care Clinic, 1986 – 1988 VA Section Head, Division of General Internal Medicine, University of Buffalo, 1986 – 1988
 Developed and implemented a major restructuring of the general medicine ambulatory care clinic to reduce fragmentation of care by introduction of a continuity-of-care model with a physician/nurse team approach.

Medical Director, Anticoagulation Clinic 1986 – 1990 Staff Physician, Emergency Department, 1985 – 1986

FACULTY APPOINTMENTS

2020 – present 2007 – present
1999 – present
1996 – 2002

Faculty Associate, Center for Human Rights, University of Washington
Affiliate Assistant Professor, Department of Health Services, School of Public Health, University of Washington
Clinical Professor, Fellowship in Applied Public Health (previously Volunteer Faculty, Preventive Medicine Residency), University at Albany School of Public Health
Volunteer Faculty, Office of the Dean of Students, University at Albany

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1992 – 2002 1993 – 1997 1990 – 1992 1985 – 1990 1982 – 1985

Associate Clinical/Associate/Assistant Professor of Medicine, Albany Medical College Clinical Associate Faculty, Graduate Program in Nursing, Sage Graduate School Instructor of Medicine, Indiana University Clinical Assistant Professor of Medicine, University of Buffalo Clinical Assistant Instructor of Medicine, University of Buffalo

2016 – present 2016 – present 2016 – 2017 2013 – present 2013 – 2016
2013 – present 2011 – 2012 2007 – present 2004 – 2006
2004 2003 – present
2001 – present 1999 – present
1999
1997 – 1998 1996 – 2002 1996 – 2002 1995 – 1998 1995
1994 – 1998
1993 1993
1988 – 1989
1987 – 1990 1987 – 1989
1987 – 1988 1987 1986 – 1988 1986 – 1988
1979 – 1980

OTHER PROFESSIONAL ACTIVITIES
Chair, Education Committee, Academic Consortium on Criminal Justice Health Washington State Institutional Review Board (“Prisoner Advocate” member) Mortality Reduction Workgroup, American Jail Association Conference Planning Committee – Medical/Mental Health Track, American Jail Association “Health in Prisons” course, Bloomberg School of Public Health, Johns Hopkins University/International Committee of the Red Cross Institutional Review Board, University of Washington (“Prisoner Advocate” member), Education Committee, National Commission on Correctional Health Care National Advisory Committee, COCHS (Community–Oriented Correctional Health Services) Fellow’s Advisory Committee, University of Washington Robert Wood Johnson Clinical Scholar
Program External Expert Panel to the Surgeon General on the “Call to Action on Correctional Health Care” Faculty Instructor, Critical Appraisal of the Literature Course, Family Practice Residency Program,
Providence St. Peter Hospital, Olympia, Washington Chair/Co-Chair, Education Committee, American College of Correctional Physicians Critical Appraisal of the Literature Course, Preventive Medicine Residency Program, New York State
Department of Health/University at Albany School of Public Health Co–Chairperson, Education Subcommittee, Workshop Submission Review Committee, Annual
Meeting, Society of General Internal Medicine Northeast US Representative, National Association of VA Ambulatory Managers Faculty Mentor, Journal Club, Internal Medicine Residency Program, Albany Medical College Faculty Advisor and Medical Control, 5 Quad Volunteer Ambulance Service, University at Albany Preceptor, MBA Internship, Union College Quality Assurance/Patient Satisfaction Subcommittee, VA National Curriculum Development
Committee for Implementation of Primary Care Practices, Veterans Administration Residency Advisory Committee, Preventive Medicine Residency, New York State Department of
Health/School of Public Health, University at Albany Chairperson, Dean's Task Force on Primary Care, Albany Medical College Task Group to develop curriculum for Comprehensive Care Case Study Course for Years 1 through 4,
Albany Medical College Teaching Effectiveness Program for New Housestaff, Graduate Medical Dental Education Consortium
of Buffalo Human Studies Review Committee, School of Allied Health Professions, University of Buffalo Chairman, Subcommittee on Hospital Management Issues and Member, Subcommittee on
Teaching of Ad Hoc Committee to Plan Incoming Residents Training Week, Graduate Medical Dental Education Consortium of Buffalo Dean's Ad Hoc Committee to Reorganize "Introduction to Clinical Medicine" Course Preceptor, Nurse Practitioner Training Program, School of Nursing, University of Buffalo Course Coordinator, Simulation Models Section of Physical Diagnosis Course, University of Buffalo Chairman, Service Chiefs' Continuity of Care Task Force, Veterans Administration Medical Center, Buffalo, New York Laboratory Teaching Assistant in Gross Anatomy, Université Libre de Bruxelles, Brussels, Belgium

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1973 – 1975 1972 – 1975
1972 – 1975

Instructor and Instructor Trainer of First Aid, American National Red Cross
Chief of Service or Assistant Chief of Operations, 5 Quad Volunteer Ambulance Service, University at Albany.
Emergency Medical Technician Instructor and Course Coordinator, New York State Department of Health, Bureau of Emergency Medical Services

2019 – present 2015 – present 2015 – present
2011 – present 2010 – present 2010 – present 2001 – present 2001 – 2004 1996
1990 – 1992

REVIEWER/EDITOR Criminal Justice Review (reviewer) PLOS ONE (reviewer) Founding Editorial Board Member and Reviewer, Journal for Evidence-based Practice in Correctional Health, Center for Correctional Health Networks, University of Connecticut American Journal of Public Health (reviewer) International Advisory Board Member and Reviewer, International Journal of Prison Health Langeloth Foundation (grant reviewer) Reviewer and Editorial Board Member (2009 – present), Journal of Correctional Health Care Journal of General Internal Medicine (reviewer) Abstract Committee, Health Services Research Subcommittee, Annual Meeting, Society of General Internal Medicine (reviewer) Medical Care (reviewer)

EDUCATION
University at Albany, College of Arts and Sciences, Albany; B.S., 1975 (Biology) University at Albany, School of Education, Albany; AMST (Albany Math and Science Teachers) Teacher Education
Program, 1975 Université Libre de Bruxelles, Faculté de Medecine, Brussels, Belgium; Candidature en Sciences Medicales, 1980 University at Buffalo, School of Medicine, Buffalo; M.D., 1982 University at Buffalo Affiliated Hospitals, Buffalo; Residency in Internal Medicine, 1985 Regenstrief Institute of Indiana University, and Richard L. Roudebush Veterans Administration Medical Center; VA/NIH
Fellowship in Primary Care Medicine and Health Services Research, 1992 Indiana University, School of Health, Physical Education, and Recreation, Bloomington; M.P.H., 1992 New York Academy of Medicine, New York; Mini-fellowship Teaching Evidence-Based Medicine, 1999

CERTIFICATION
Provisional Teaching Certification for Biology, Chemistry, Physics, Grades 7–12, New York State Department of Education (expired), 1975
Diplomate, National Board of Medical Examiners, 1983 Diplomate, American Board of Internal Medicine, 1985 Fellow, American College of Physicians, 1991 License: Washington (#MD00041843, active); New York (#158327, inactive); Indiana (#01038490, inactive) “X” Waiver (buprenorphine), Department of Health & Human Services, 2018

2019 – present 2005 – 2016 2004 – 2006
2000 – present

MEMBERSHIPS Washington Association of Sheriffs and Police Chiefs American Correctional Association/Washington Correctional Association American College of Correctional Physicians (Member, Board of Directors, Chair Education Committee) American College of Correctional Physicians

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RECOGNITION B. Jaye Anno Award for Excellence in Communication, National Commission on Correctional Health Care. 2019 Award of Appreciation, Washington Association of Sheriffs and Police Chiefs. 2018 Armond Start Award of Excellence, American College of Correctional Physicians. 2010 (First) Annual Preventive Medicine Faculty Excellence Award, New York State Preventive Medicine Residency Program, University at Albany School of Public Health/New York State Department of Health. 2010 Excellence in Education Award for excellence in clinical teaching, Family Practice Residency Program, Providence St. Peter Hospital, Olympia, Washington. 2004 Special Recognition for High Quality Workshop Presentation at Annual Meeting, Society of General Internal Medicine. 1996 Letter of Commendation, House Staff Teaching, University of Buffalo. 1986

WORKSHOPS, SEMINARS, PRESENTATIONS, INVITED LECTURES
It’s the 21st Century – Time to Bid Farewell to “Sick Call” and “Chronic Care Clinic”. Annual Conference, National Commission on Correctional Health Care. Fort Lauderdale, Florida. 2019
HIV and Ethics – Navigating Medical Ethical Dilemmas in Corrections. Keynote Speech, 14th Annual HIV Care in the Correctional Setting. AIDS Education and Training Program (AETC) Mountain West, Olympia, Washington. 2019
Honing Nursing Skills to Keep Patients Safe in Jail. Orange County Jail Special Training Session (including San Bernardino and San Diego Jail Staffs), Theo Lacy Jail, Orange, California. 2019
What Would You Do? Navigating Medical Ethical Dilemmas. Leadership Training Academy, National Commission on Correctional Health Care. San Diego, California. 2019
Preventing Jail Deaths. Jail Death Review and Investigations: Best Practices Training Program, American Jail Association, Arlington, Virginia. 2018
How to Investigate Jail Deaths. Jail Death Review and Investigations: Best Practices Training Program, American Jail Association, Arlington, Virginia. 2018
Executive Manager Program in Correctional Health. 4-day training for custody/health care teams from jails and prisons on designing safe and efficient health care systems. National Institute for Corrections Training Facility, Aurora, Colorado, and other venues in Washington State. Periodically. 2014 – present
Medical Ethics in Corrections. Criminal Justice 441 – Professionalism and Ethical Issues in Criminal Justice. University of Washington, Tacoma. Recurring seminar. 2012 – present
Medical Aspects of Deaths in ICE Custody. Briefing for U.S. Senate staffers, Human Rights Watch. Washington, D.C. 2018
Jails’ Role in Managing the Opioid Epidemic. Panelist. Washington Association of Sheriffs and Police Chiefs Annual Conference. Spokane, Washington. 2018
Contract Prisons and Contract Health Care: What Do We Know? Behind Bars: Ethics and Human Rights in U.S. Prisons Conference. Center for Bioethics – Harvard Medical School/Human Rights Program – Harvard Law School. Boston, Massachusetts. 2017
Health Care Workers in Prisons. (With Dr. J. Wesley Boyd) Behind Bars: Ethics and Human Rights in U.S. Prisons Conference. Center for Bioethics – Harvard Medical School/Human Rights Program – Harvard Law School. Boston, Massachusetts. 2017
Prisons, Jails and Medical Ethics: Rubber, Meet Road. Grand Rounds. Touro Medical College. New York, New York. 2017
Jail Medical Doesn’t Have to Keep You Up at Night – National Standards, Risks, and Remedies. Washington Association of Counties. SeaTac, Washington. 2017
Prison and Jail Health Care: What do you need to know? Grand Rounds. Providence/St. Peters Medical Center. Olympia, Washington. 2017
Prison Health Leadership Conference. 2-Day workshop. International Corrections and Prisons Association/African Correctional Services Association/Namibian Corrections Service. Omaruru, Namibia. 2016; 2018

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What Would YOU Do? Navigating Medical Ethical Dilemmas. Spring Conference. National Commission on Correctional Health Care. Nashville, Tennessee. 2016
Improving Patient Safety. Spring Provider Meeting. Oregon Department of Corrections. Salem, Oregon 2016
A View from the Inside: The Challenges and Opportunities Conducting Cardiovascular Research in Jails and Prisons. Workshop on Cardiovascular Diseases in the Inmate and Released Prison Population. The National Heart, Lung, and Blood Institute. Bethesda, Maryland. 2016
Why it Matters: Advocacy and Policies to Support Health Communities after Incarceration. At the Nexus of Correctional Health and Public Health: Policies and Practice session. Panelist. American Public Health Association Annual Meeting. Chicago, Illinois. 2015
Hot Topics in Correctional Health Care. Presented with Dr. Donald Kern. American Jail Association Annual Meeting. Charlotte, North Carolina. 2015
Turning Sick Call Upside Down. Annual Conference. National Commission on Correctional Health Care. Dallas, Texas, 2015.
Diagnostic Maneuvers You May Have Missed in Nursing School. Annual Conference. National Commission on Correctional Health Care. Dallas, Texas. 2015
The Challenges of Hunger Strikes: What Should We Do? What Shouldn’t We Do? Annual Conference. National Commission on Correctional Health Care. Dallas, Texas. 2015
Practical and Ethical Approaches to Managing Hunger Strikes. Annual Practitioners’ Conference. Washington Department of Corrections. Tacoma, Washington. 2015
Contracting for Health Services: Should I, and if so, how? American Jail Association Annual Meeting. Dallas, Texas. 2014
Hunger Strikes: What should the Society of Correctional Physician’s position be? With Allen S, May J, Ritter S. American College of Correctional Physicians (Formerly Society of Correctional Physicians) Annual Meeting. Nashville, Tennessee. 2013
Addressing Conflict between Medical and Security: an Ethics Perspective. International Corrections and Prison Association Annual Meeting. Colorado Springs, Colorado. 2013
Patient Safety and ‘Right Using’ Nurses. Keynote address. Annual Conference. American Correctional Health Services Association. Philadelphia, Pennsylvania. 2013
Patient Safety: Overuse, underuse, and misuse…of nurses. Keynote address. Essentials of Correctional Health Care conference. Salt Lake City, Utah. 2012
The ethics of providing healthcare to prisoners-An International Perspective. Global Health Seminar Series. Department of Global Health, University of Washington, Seattle, Washington. 2012
Recovery, Not Recidivism: Strategies for Helping People Who are Incarcerated. Panelist. NAMI Annual Meeting, Seattle, Washington, 2012
Ethics and HIV Workshop. HIV/AIDS Care in the Correctional Setting Conference, Northwest AIDS Education and Training Center. Salem, Oregon. 2011
Ethics and HIV Workshop. HIV/AIDS Care in the Correctional Setting Conference, Northwest AIDS Education and Training Center. Spokane, Washington. 2011
Patient Safety: Raising the Bar in Correctional Health Care. With Dr. Sharen Barboza. National Commission on Correctional Health Care Mid-Year Meeting, Nashville, Tennessee. 2010
Patient Safety: Raising the Bar in Correctional Health Care. American Correctional Health Services Association, Annual Meeting, Portland, Oregon. 2010
Achieving Quality Care in a Tough Economy. National Commission on Correctional Health Care Mid-Year Meeting, Nashville, Tennessee, 2010 (Co-presented with Rick Morse and Helena Kim, PharmD.)
Involuntary Psychotropic Administration: The Harper Solution. With Dr. Bruce Gage. American Correctional Health Services Association, Annual Meeting, Portland, Oregon. 2010
Evidence Based Decision Making for Non-Clinical Correctional Administrators. American Correctional Association 139th Congress, Nashville, Tennessee. 2009
Death Penalty Debate. Panelist. Seattle University School of Law, Seattle, Washington. 2009

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The Patient Handoff – From Custody to the Community. Washington Free Clinic Association, Annual Meeting, Olympia, Washington. Lacey, Washington. 2009
Balancing Patient Advocacy with Fiscal Restraint and Patient Litigation. National Commission on Correctional Health Care and American College of Correctional Physicians “Medical Directors Boot Camp,” Seattle, Washington. 2009
Staff Management. National Commission on Correctional Health Care and American College of Correctional Physicians “Medical Directors Boot Camp,” Seattle, Washington. 2009
Management Dilemmas in Corrections: Boots and Bottom Bunks. Annual Meeting, American College of Correctional Physicians, Chicago, Illinois. 2008
Public Health and Correctional Health Care. Masters Program in community–based population focused management – Populations at risk, Washington State University, Spokane, Washington. 2008
Managing the Geriatric Population. Panelist. State Medical Directors’ Meeting, American Corrections Association, Alexandria, Virginia. 2007
I Want to do my own Skin Biopsies. Annual Meeting, American College of Correctional Physicians, New Orleans, Louisiana. 2005
Corrections Quick Topics. Annual Meeting, American College of Correctional Physicians. Austin, Texas. 2003
Evidence Based Medicine in Correctional Health Care. Annual Meeting, National Commission on Correctional Health Care. Austin, Texas. 2003
Evidence Based Medicine. Excellence at Work Conference, Empire State Advantage. Albany, New York. 2002
Evidence Based Medicine, Outcomes Research, and Health Care Organizations. National Clinical Advisory Group, Integrail, Inc., Albany, New York. 2002
Evidence Based Medicine. With Dr. LK Hohmann. The Empire State Advantage, Annual Excellence at Work Conference: Leading and Managing for Organizational Excellence, Albany, New York. 2002
Taking the Mystery out of Evidence Based Medicine: Providing Useful Answers for Clinicians and Patients. Breakfast Series, Institute for the Advancement of Health Care Management, School of Business, University at Albany, Albany, New York. 2001
Diagnosis and Management of Male Erectile Dysfunction – A Goal–Oriented Approach. Society of General Internal Medicine National Meeting, San Francisco, California. 1999
Study Design and Critical Appraisal of the Literature. Graduate Medical Education Lecture Series for all housestaff, Albany Medical College, Albany, New York. 1999 Male Impotence: Its Diagnosis and Treatment in the Era of Sildenafil. 4th Annual CME Day, Alumni Association of the Albany–Hudson Valley Physician Assistant Program, Albany, New York. 1998
Models For Measuring Physician Productivity. Panelist. National Association of VA Ambulatory Managers National Meeting, Memphis, Tennessee. 1997
Introduction to Male Erectile Dysfunction and the Role of Sildenafil in Treatment. Northeast Regional Meeting Pfizer Sales Representatives, Manchester Center, Vermont. 1997
Male Erectile Dysfunction. Topics in Urology, A Seminar for Primary Healthcare Providers, Bassett Healthcare, Cooperstown, New York. 1997
Evaluation and Treatment of the Patient with Impotence: A Practical Primer for General Internists. Society of General Internal Medicine National Meeting, Washington D.C. 1996
Impotence: An Update. Department of Medicine Grand Rounds, Albany Medical College, Albany, New York. 1996
Diabetes for the EMT First–Responder. Five Quad Volunteer Ambulance, University at Albany. Albany, New York. 1996
Impotence: An Approach for Internists. Medicine Grand Rounds, St. Mary's Hospital, Rochester, New York. 1994
Male Impotence. Common Problems in Primary Care Precourse. American College of Physicians National Meeting, Miami, Florida. 1994
Patient Motivation: A Key to Success. Tuberculosis and HIV: A Time for Teamwork. AIDS Program, Bureau of Tuberculosis Control – New York State Department of Health and Albany Medical College, Albany, New York. 1994

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Recognizing and Treating Impotence. Department of Medicine Grand Rounds, Albany Medical College, Albany, New York. 1992
Medical Decision Making: A Primer on Decision Analysis. Faculty Research Seminar, Department of Family Practice, Indiana University, Indianapolis, Indiana. 1992
Effective Presentation of Public Health Data. Bureau of Communicable Diseases, Indiana State Board of Health, Indianapolis, Indiana. 1991
Impotence: An Approach for Internists. Housestaff Conference, Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Using Electronic Databases to Search the Medical Literature. NIH/VA Fellows Program, Indiana University, Indianapolis, Indiana. 1991
Study Designs Used in Epidemiology. Ambulatory Care Block Rotation. Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Effective Use of Slides in a Short Scientific Presentation. Housestaff Conference, Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Impotence: A Rational and Practical Approach to Diagnosis and Treatment for the General Internist. Society of General Internal Medicine National Meeting, Washington D.C. 1991
Nirvana and Audio–Visual Aids. With Dr. RM Lubitz. Society of General Internal Medicine, Midwest Regional Meeting, Chicago. 1991
New Perspectives in the Management of Hypercholesterolemia. Medical Staff, West Seneca Developmental Center, West Seneca, New York. 1989
Effective Use of Audio–Visual Aids. Nurse Educators, American Diabetes Association, Western New York Chapter, Buffalo, New York. 1989
Management of Diabetics in the Custodial Care Setting. Medical Staff, West Seneca Developmental Center, West Seneca, New York, 1989
Effective Use of Audio–Visuals in Diabetes Peer and Patient Education. American Association of Diabetic Educators, Western New York Chapter, Buffalo, New York. 1989
Pathophysiology, Diagnosis and Care of Diabetes. Nurse Practitioner Training Program, School of Nursing, University of Buffalo, Buffalo, New York. 1989
Techniques of Large Group Presentations to Medical Audiences – Use of Audio–Visuals. New Housestaff Training Program, Graduate Medical Dental Education Consortium of Buffalo, Buffalo, New York. 1988

PUBLICATIONS/ABSTRACTS
Borschmann, R, Tibble, H, Spittal, MJ, … Stern, MF, Viner, KM, Wang, N, Willoughby, M, Zhao, B, and Kinner, SA. The Mortality After Release from Incarceration Consortium (MARIC): Protocolfor a multi-national, individual participant data meta-analysis. Int. J of Population Data Science 2019 5(1):6
Binswanger IA, Maruschak LM, Mueller SR, Stern MF, Kinner SA. Principles to Guide National Data Collection on the Health of Persons in the Criminal Justice System. Public Health Reports 2019 134(1):34S-45S
Stern M. Hunger Strike: The Inside Medicine Scoop. American Jails 2018 32(4):17-21
Grande L, Stern M. Providing Medication to Treat Opioid Use Disorder in Washington State Jails. Study conducted for Washington State Department of Social and Health Services under Contract 1731-18409. 2018.
Stern MF, Newlin N. Epicenter of the Epidemic: Opioids and Jails. American Jails 2018 32(2):16-18
Stern MF. A nurse is a nurse is a nurse…NOT! Guest Editorial, American Jails 2018 32(2):4,68
Wang EA, Redmond N, Dennison Himmelfarb CR, Pettit B, Stern M, Chen J, Shero S, Iturriaga E, Sorlie P, Diez Roux AV. Cardiovascular Disease in Incarcerated Populations. Journal of the American College of Cardiology 2017 69(24):2967-76
Mitchell A, Reichberg T, Randall J, Aziz-Bose R, Ferguson W, Stern M. Criminal Justice Health Digital Curriculum. Poster, Annual Academic and Health Policy Conference on Correctional Health, Atlanta, Georgia, March, 2017

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Stern MF. Patient Safety (White Paper). Guidelines, Management Tools, White Papers, National Commission on Correctional Health Care. http://www.ncchc.org/filebin/Resources/Patient-Safety-2016.pdf. June, 2016
Binswanger IA, Stern MF, Yamashita TE, Mueller SR, Baggett TP, Blatchford PJ. Clinical risk factors for death after release from prison in Washington State: a nested case control study. Addiction 2015 Oct 17
Stern MF. Op-Ed on Lethal Injections. The Guardian 2014 Aug 6
Stern MF. American College of Correctional Physicians Calls for Caution Placing Mentally Ill in Segregation: An Important Band-Aid. Guest Editorial. Journal of Correctional Health Care 2014 Apr; 20(2):92-94
Binswanger I, Blatchford PJ, Mueller SR, Stern MF. Mortality After Prison Release: Opioid Overdose and Other Causes of Death, Risk Factors, and Time Trends From 1999 to 2009. Annals of Internal Medicine 2013 Nov; 159(9):592-600
Williams B, Stern MF, Mellow J, Safer M, Greifinger RB. Aging in Correctional Custody: Setting a policy agenda for older prisoner health care. American Journal of Public Health 2012 Aug; 102(8):1475-1481
Binswanger I, Blatchford PJ, Yamashita TE, Stern MF. Drug-Related Risk Factors for Death after Release from Prison: A Nested Case Control Study. Oral Presentation, University of Massachusetts 4th Annual Academic and Health Policy Conference on Correctional Healthcare, Boston, Massachusetts, March, 2011
Binswanger I, Blatchford PJ, Forsyth S, Stern MF, Kinner SA. Death Related to Infectious Disease in Ex-Prisoners: An International Comparative Study. Oral Presentation, University of Massachusetts 4th Annual Academic and Health Policy Conference on Correctional Healthcare, Boston, Massachusetts, March, 2011
Binswanger I, Lindsay R, Stern MF, Blatchford P. Risk Factors for All-Cause, Overdose and Early Deaths after Release from Prison in Washington State Drug and Alcohol Dependence. Drug and Alcohol Dependence Aug 1 2011;117(1):1-6
Stern MF, Greifinger RB, Mellow J. Patient Safety: Moving the Bar in Prison Health Care Standards. American Journal of Public Health November 2010;100(11):2103-2110
Strick LB, Saucerman G, Schlatter C, Newsom L, Stern MF. Implementation of Opt-Out HIV testing in the Washington State Department of Corrections. Poster Presentation, National Commission on Correctional Health Care Annual Meeting, Orlando, Florida, October, 2009
Binswanger IA, Blatchford P, Stern MF. Risk Factors for Death After Release from Prison. Society for General Internal Medicine 32nd Annual Meeting; Miami: Journal of General Internal Medicine; April 2009. p. S164-S95
Stern MF. Force Feeding for Hunger Strikes – One More Step. CorrDocs Winter 2009;12(1):2
Binswanger I, Stern MF, Deyo RA, Heagerty PJ, Cheadle A, Elmore JG, Koepsell TD. Release from Prison – A High Risk of Death for Former Inmates. New England Journal of Medicine 2007 Jan 11;356(2):157–165
Stern MF, Hilliard T, Kelm C, Anderson E. Epidemiology of Hepatitis C Infection in the Washington State Department of Corrections. Poster Presentation, CDC/NIH ad hoc Conference on Management of Hepatitis C in Prisons, San Antonio, Texas, January, 2003
Phelps KR, Stern M, Slingerland A, Heravi M, Strogatz DS, Haqqie SS. Metabolic and skeletal effects of low and high doses of calcium acetate in patients with preterminal chronic renal failure. Am J Nephrol 2002 Sep–Dec;22(5–6):445–54
Goldberg L, Stern MF, Posner DS. Comparative Epidemiology of Erectile Dysfunction in Gay Men. Oral Presentation, International Society for Impotence Research Meeting, Amsterdam, The Netherlands, August 1998. Int J Impot Res. 1998;10(S3):S41 [also presented as oral abstract Annual Meeting, Society for the Study of Impotence, Boston, Massachusetts, October, 1999. Int J Impot Res. 1999;10(S1):S65]
Stern MF. Erectile Dysfunction in Older Men. Topics in Geriatric Rehab 12(4):40–52, 1997. [republished in Geriatric Patient Education Resource Manual, Supplement. Aspen Reference Group, Eds. Aspen Publishers, Inc., 1998]
Stern MF, Wulfert E, Barada J, Mulchahy JJ, Korenman SG. An Outcomes–Oriented Approach to the Primary Care Evaluation and Management of Erectile Dysfunction. J Clin Outcomes Management 5(2):36–56, 1998
Fihn SD, Callahan CM, Martin D, et al.; for the National Consortium of Anticoagulation Clinics.* The Risk for and Severity of Bleeding Complications in Elderly Patients Treated with Warfarin. Ann Int Med. 1996;124:970–979
Fihn SD, McDonell M, Martin D, et al.; for the Warfarin Optimized Outpatient Follow–up Study Group.* Risk Factors for Complications of Chronic Anticoagulation. Ann Int Med. 1993;118:511–520. (*While involved in the original proposal development and project execution, I was no longer part of the group at the time of this publication)
Stern MF, Dittus RS, Birkhead G, Huber R, Schwartz J, Morse D. Cost–Effectiveness of Hepatitis B Immunization Strategies for High Risk People. Oral Presentation, Society of General Internal Medicine National Meeting, Washington, D.C., May 1992. Clin Res 1992
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Fihn SD, McDonell MB, Vermes D, Martin D, Kent DL, Henikoff JG, and the Warfarin Outpatient Follow–up Study Group. Optimal Scheduling of Patients Taking Warfarin. A Multicenter Randomized Trial. Oral Presentation, Society of General Internal Medicine National Meeting, Washington, D.C., May 1992. Clin Res 1992
Fihn SD, McDonnell MB, Vermes D, Kent DL, Henikoff JG, and the Warfarin Anticoagulation Study Group. Risk Factors for Complications During Chronic Anticoagulation. Poster Presentation, Society of General Internal Medicine National Meeting, Seattle, May 1991
Pristach CA, Donoghue GD, Sarkin R, Wargula C, Doerr R, Opila D, Stern M, Single G. A Multidisciplinary Program to Improve the Teaching Skills of Incoming Housestaff. Acad Med. 1991;66(3):172–174
Stern MF. Diagnosing Chlamydia trachomatis and Neisseria gonorrhea Infections. (letter) J Gen Intern Med. 1991;6:183
Stern MF, Fitzgerald JF, Dittus RS, Tierney WM, Overhage JM. Office Visits and Outcomes of Care: Does Frequency Matter? Poster Presentation, Society of General Internal Medicine Annual Meeting, Seattle, May 1991. Clin Res 1991;39:610A
Stern MF. Cobalamin Deficiency and Red Blood Cell Volume Distribution Width. (letter) Arch Intern Med. 1990;150:910
Stern M, Steinbach B. Hypodermic Needle Embolization to the Heart. NY State J Med. 1990;90(7):368–371
Stern MF, Birkhead G, Huber R, Schwartz J, Morse D. Feasibility of Hepatitis B Immunization in an STD Clinic. Oral Presentation, American Public Health Association Annual Meeting, Atlanta, November 1990

EXPERT TESTIMONY Pajas v. County of Monterey, et al. US District Court for the Northern District of California, 2019 (trial) Dockery, et al. v. Hall et al. US District Court for the Southern District of Mississippi Northern Division, 2018 (trial) Benton v. Correct Care Solutions, et al. US District Court for the District of Maryland, 2018 (deposition) Pajas v. County of Monterey, et al. US District Court Northern District of California, 2018 (deposition) Walter v. Correctional Healthcare Companies, et al. US District Court, District of Colorado, 2017 (deposition) Winkler v. Madison County, Kentucky, et al. US District Court, Eastern District of Kentucky, Central Division at Lexington, 2016 (deposition) US v. Miami-Dade County, et al. US District Court, Southern District of Florida, periodically 2014 - 2016

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EXHIBIT 9
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DECLARATION OF PROFESSOR JUDITH RESNIK REGARDING ENLARGEMENT AND THE USE OF PROVISIONAL REMEDIES
FOR DETAINED INDIVIDUALS
I have been asked to make this declaration to explain my understanding of the remedies, both provisional and permanent, that federal judges can provide to people who are incarcerated and facing the threat of COVID-19. Because I have practiced in the federal courts for decades and represented prisoners in federal court, I have had personal experience with the use of enlargement in habeas corpus cases. Given that this provisional remedy is not regularly discussed in reported decisions or in academic analyses, I believe that my experiences and knowledge can be useful to the Court. This opinion is mine and is not that of the institutions with which I am affiliated. I declare that the following is a true and accurate account of my own work as a lawyer, of the pertinent legal principles as I understand them, and of how these precepts can apply in this unprecedented context.
My Background
1. I have worked on occasion as a lawyer, including in the clinical programs at Yale Law School and at the University of Southern California Law Center (USC), where I taught for more than a decade before returning to Yale Law School. I have appeared before the United States Supreme Court and in federal district and appellate courts. I have also been appointed by federal judges to assist in issues arising in large-scale litigation. Below, I provide a few aspects of my work particularly relevant to this declaration. I attach my resume as Exhibit A to this Declaration.
2. From 1977 until 1980, I was a supervising attorney at Yale Law School’s clinical program, which then provided legal services to federal prisoners housed at F.C.I. Danbury. From 1980 to 1996, I taught at USC in both traditional classroom and clinical settings.
3. I am now the Arthur Liman Professor of Law at Yale Law School where I teach courses, including on federal and state
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courts; procedure; large-scale litigation; federalism; and incarceration.

4. I have taught law for decades. Much of my focus has been on the role and function of courts, and the relationship of governments to their populations. I regularly teach the class entitled Federal and State Courts in the Federal System. Readings for students include materials on habeas corpus and on civil rights litigation.

5. In 2018, I was awarded an Andrew Carnegie Fellowship to work on a book, tentatively entitled Impermissible Punishments, which explores the impact of the 1960s civil rights revolution on the kinds of punishments that governments can impose on people convicted of crimes. Central to this book is the role that access to courts played for people held in detention.

6. I am the Founding Director of the Arthur Liman Center for Public Interest Law. The Liman Center teaches classes yearly, convenes colloquia, does research projects, supports graduates of Yale Law School to work for one year in public interest organizations, and is an umbrella for undergraduate fellowships at eight institutions of higher education.

7. I write about the federal courts; adjudication and alternatives such as arbitration; habeas corpus and incarceration; class actions and multi-district litigation; the judicial role and courts’ remedies; gender and equality; and about transnational aspects of these issues. In recent years, I have spent a good deal of time doing research related to prisons. I have helped to develop a series of reports that provide information nation-wide on the use of solitary confinement.

8. In February of 2019, I testified before the U.S.

Commission on Civil Rights at its hearing on women in prison and

co-authored a statement related to the isolation of many facilities

for women, their needs for education and work training, and the

discipline to which they are subjected. See Statement submitted

for the record, Women in Prison: Seeking Justice Behind Bars,

before the U.S. Commission on Civil Rights, March 22, 2019. The

report, published a few months ago, references this testimony. See

U.S. Commission on Civil Rights, Women in Prison: Seeking Justice

Behind

Bars

(February

2020),

available

at

https://www.usccr.gov/pubs/2020/02-26-Women-in-Prison.pdf.

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Remedies Available in the Federal Courts: Habeas Corpus, Civil Rights Litigation, and Enlargement
9. In light of my knowledge of the federal law of habeas corpus, state and federal court relations, procedure, and remedies, I have been asked by counsel for the petitioners/plaintiffs to address the range of responses available to judges presiding in cases that raise claims related to COVID19. I have submitted a declaration akin to this one in a few other cases.
10. As I understand from public materials on the health risks of this disease, COVID-19 poses a deadly threat to the well-being and lives of people who contract this disease. To reduce the risk and spread of this disease, our governments have instructed us to stay distant from others and to take measures that are extraordinary departures from our daily lives and routines.
11. Applying these urgent medical directives to prisons poses challenges in every jurisdiction. Governing legal principles about prisoners’ access to courts were not framed to address COVID19’s reality: that being inside prisons that are densely populated can put large numbers of people (prisoners and staff) at risk of immediate serious illness and potential death.
12. These unprecedented risks from and harms of COVID-19 in prison raise a new legal question: whether COVID-19 has turned sentences which, when imposed, were (or may have been) constitutional into unconstitutional sentences during the pendency of this crisis.
13. When sentencing people to a term of years of incarceration, judges had no authority to impose putting a person at grave risk of serious illness and death as part of the punishment for the offense. Now, such grave risks and harms can arise from the fact of incarceration.
14. A recent Supreme Court case, Montgomery v. Louisiana, 136 S.Ct. 718 (2016), provides an analogous situation of sentence that was constitutional at sentencing but unconstitutional now. The Court determined that, in light of new understandings of the limits of brain development in juveniles, sentences of life without parole (LWOP) imposed on individuals who had committed crimes when under the age of eighteen were lawful when issued but became unconstitutional. As a consequence, parole boards or courts had to reconsider whether LWOP remained appropriate. COVID-19 raises a parallel question, as it requires courts to address whether
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sentences lawful at imposition can (at least temporarily) no longer be served in prisons because otherwise, the sentence would become an unconstitutional form of punishment. In these abnormal times, the speed at which decisions are made is critical. Therefore, as I discuss below, provisional remedies (enabling enlargement and release for some individuals and de-densifying for others) are necessary.
15. The classic and longstanding remedy for relief from unconstitutional detention, conviction, and sentences is habeas corpus. The Constitution enshrined the remedy of habeas corpus, which has a substantial common law history and is codified in federal statutes. See generally Paul D. Halliday, Habeas Corpus (Harvard U. Press, 2012); Amanda L. Tyler, Habeas Corpus in Wartime (Oxford U. Press, 2017); Randy Hertz and James Liebman, Federal Habeas Corpus Practice and Procedure (2 volumes, 2019); Hart & Wechsler, The Federal Courts and the Federal System, Chapter X1, 1193-1164 (Richard H. Fallon, Jr, John F. Manning, Daniel J. Meltzer & David Shapiro, 7th ed., 2015). These citations are the tip of a vast and substantial literature that aims to understand the history and law of habeas corpus.
The Legal Thicket
16. As is familiar, in federal courts, federal petitioners file under 28 U.S.C. §2255 (post-conviction motions) and under §2241 (the general habeas statute), both of which are civil actions.
17. For example, when I worked at Yale Law School in its clinical program in the late 1970s, we filed lawsuits for federal prisoners predicated on 28 U.S.C. §2241 as well as (in appropriate situations) on 28 U.S.C. §1331 (general question jurisdiction) and 28 U.S.C. §1361 (mandamus), and in several instances, we filed cases as class actions. In the mid-1970s, the Supreme Court provided rules and forms for §2254 and §2255 filings. The Federal Rules of Civil Procedure supplement those rules, as recognized in F.R.Civ.Pro. 81(a)(4).
18. Congress has recognized that federal judges are authorized under the habeas statutes to “summarily hear and determine the facts, and dispose of the matter as law and justice require.” See 28 U.S.C. §2243. In addition to this statutory authority, federal judicial power is predicated on the constitutional protection of the writ and on the common law.
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19. Congress has channeled and circumscribed some of federal judicial authority through the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and, relatedly, under the Prison Litigation Reform Act (PLRA) of 1996.
20. Moreover, the Supreme Court has issued many decisions interpreting the prior habeas statutes, the 1996 revisions in AEDPA, and the intersection of habeas and civil rights claims brought under 42 U.S.C. §1983. The result is a dense arena of law and doctrine that can be daunting for litigants and jurists alike.
21. Some Supreme Court decisions, written to address claims by state prisoners, have delineated litigation focused on the fact or duration of confinement, for which release is the remedy and habeas is the preferred route, from challenges to conditions of confinement, for which the Court has required use of 42 U.S.C. §1983. See, e.g., Preiser v. Rodriguez, 411 U.S. 475 (1978); Heck v. Humphrey, 512 U.S. 477 (1994). Yet that distinction is hard to apply, and many opinions have identified that the overlap, as exemplified by Mohammad v. Close, 540 U.S. 744 (2004), Wilkinson v. Dotson, 544 U.S. 74 (2005), and by other Supreme Court and lower court decisions.
22. COVID-19 poses a new and painful context in which to undertake that analysis. Some reported decisions addressing the constitutional right of prisoners that officials not be “deliberately indifferent to serious medical needs” consider those Eighth Amendment claims to be appropriate for §1983 because they relate to conditions. But this deadly disease turns ordinary conditions into potentially lethal threats of illness for which the remedy to consider is release of at least some prisoners because density puts people at medical risk.
23. Because COVID-19 can end people’s lives unexpectedly and abruptly, COVID-19 claims turn the condition of being incarcerated into a practice that affects the fact or duration of confinement. In my view, COVID-19 claims, therefore, collapse the utility and purpose of drawing distinctions between what once could more coherently be distinguished.
24. Courts need also to consider how COVID-19 fits (or not) with provisions of AEDPA and the parameters of the PLRA. Again, new problems have emerged. For example, in some contexts for state and federal prisoners, a question of exhaustion of remedies arises. Often one issue is the ability of the executive branch to respond
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quickly. In the COVID context, day by day, the risk of illness increases for prisoners and staff, which endanger health care resources. Exhaustion would be “futile” if other branches of government are not prompt in response and if people become sick, risks skyrocket, and deaths occur.
25. “Futility” thus needs to be analyzed in terms not only of the capacity of institutions but in terms of the likelihood that the people seeking relief will be well enough to have the capacity to do so, and that the remedy provided will be effective given the alleged harm.
26. Other legal issues include when class actions or other forms of multi-party treatment are appropriate and if so, whether the criteria such as those of Rule 23 are met; the merits of arguments about unconstitutional sentences and conditions; and the range of remedies. Furthermore, circuit case law varies somewhat on the use and application of the Federal Rules of Civil Procedure in habeas filings and on the scope and the interpretation of 28 U.S.C. §2241.
The Availability of Provisional Remedies
27. The reason to flag some of the many issues that litigation of both habeas petitions and civil rights cases entail is to underscore the importance of considering provisional remedies when cases are pending. In general, time is required for lawyers to brief and for judges to interpret and apply the law. But waiting days in a world of COVID infections can result in the loss of life.
28. While courts have not faced COVID before, they have faced urgent situations, which is why provisional legal remedies exist. Courts have two ways to preserve the status quo – which here means protecting to the extent possible the health of prisoners, staff, and providers of medical services. One route is the use of temporary restraining orders and preliminary injunctions. These remedies require no explanation because they are familiar procedures. See Fed. R. Civ. Pro. 65.
29. Another option is an aspect of federal judicial power that is less well known. District courts have authority when habeas petitions are pending to “enlarge” the custody of petitioners. “Enlargement” is a term that, as far as I am aware, is used only in the context of habeas. (More familiar terms for individuals permitted to leave detention are “release” and “bail,” and some
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decision that “enlarge” petitioners use those words rather than enlargement).
30. The distinction is that enlargement is not release. The person remains in custody - even as the place of custody is changed and thus “enlarged” from a particular prison to a hospital, halfway house, a person’s home, or other setting. Enlargement is a provisional remedy that modifies custody by expanding the site in which it takes place.
31. Enlargement has special relevance when the PLRA has application. As I understand the PLRA’s rules on the “release” of prisoners, enlargement would not apply, as enlargement is not a release order. And, of course, interpreting the many directives of the PLRA in light of COVID entails more elaboration that my comments here.
32. The need to work through that statute and case law is another reason why the availability of provisional remedies is so important. Enlargement provides an opportunity for increasing the safety of prisoners, staff, and their communities while judges consider a myriad of complex legal questions.
33. I first encountered the provisional remedy of enlargement in the 1970s, when I represented a prisoner – Robert Drayton – who was confined at F.C.I. Danbury and who filed a habeas petition alleging that the U.S. Parole Commission had unconstitutionally rescinded his parole.
34. The Honorable T.F. Gilroy Daly, a federal judge sitting in the District of Connecticut, granted Mr. Drayton’s request for enlargement while the decision on the merits was pending. Mr. Drayton returned to his home in Philadelphia and came back to Connecticut for the merits hearing. Judge Daly thereafter ruled in his favor; that decision was upheld in part and reversed in part. See Drayton v. U.S. Parole Commission, 445 F. Supp. 305 (D. Conn. 1978), affirmed in part, Drayton v. McCall, 584 F.2d 1208 (2d Cir. 1978).
35. Judge Daly did not write a decision explaining the enlargement. Given that I knew that the use of enlargement was not always recorded in published decisions and that enlargement had special relevance here, I decided I should learn more about other courts’ discussion of this provisional remedy.
36. The provisional district court remedy of enlargement is not mentioned directly in in federal rules governing the lower
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federal courts. In contrast, at the appellate level, Federal Rule of Appellate Procedure (FRAP) 23 provides in part that:
While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner be: (1) detained in the custody from which release is sought; (2) detained in other appropriate custody; or (3) released on personal recognizance, with or without surety. While a decision ordering the release of a prisoner is under review, the prisoner must – unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise – be released on personal recognizance, with or without surety.
As that excerpt reflects, the Rule uses language familiar in the context of bail and provides that appellate courts may also determine that a petitioner be detained in “other appropriate custody.”
37. Federal courts at all level are authorized by Congress to decide habeas cases “as law and justice requires.” 28 U.S.C. §2243. The case law also references that, at the district court level, the authority to release a habeas petitioner pending a ruling on the merits stems from courts’ inherent powers. See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). And, as I noted, in these reported decisions, the terms “bail” or “release” are sometimes used instead of or in addition to “enlargement.”
38. In the last weeks, the saliency of enlargement has prompted me to review more of the law surrounding it. To gather materials and opinions on enlargement, I asked two law students, Kelsey Stimson of Yale Law School and Ally Daniels of Stanford Law School, to help me research what judges have said about enlargement and what others have written. Below I detail some of the governing case law. The Hertz & Liebman Treatise on Habeas also has a section (§14.2) devoted to this issue.
39. Some of the decisions involve requests for release when habeas petitions were pending from state prisoners, and others from federal prisoners, or from people in immigration detention. Further, several appellate cases address the issue of whether a district court order on enlargement was appealable as of right or subject to mandamus.
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40. My central point is that, amidst these various debates about appealability and the test for enlargement/release, most circuits have recognized that district courts have the authority to order release pending final disposition of a habeas petition. See e.g., Woodcock v. Donnelly, 470 F.2d 93, 43 (1st Cir. 1972); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974); Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990); Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985); Martin v. Solem, 801 F.2d 324, 329 (8th Cir. 1986); Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981): Baker v. Sard, 420 F.2d 1342, 1342-44 (D.C. Cir. 1969).
41. The Fourth and Eleventh Circuits appear, albeit less directly, to recognize enlargement authority. See Gomez v. United States, 899 F.2d 1124, 1125 (11th Cir. 1990); United States v. Perkins, 53 F. App’x 667, 669 (4th Cir. 2002). A Ninth Circuit opinion from 1989 likewise appears to recognize the power of district courts to grant release pending a habeas decision where there are “special circumstances or a high probability of success.” See Land v. Deeds, 878 F.2d 318 (9th Cir. 1989). Thereafter, another decision, In re Roe, described the Circuit as not having ruled on the issue in terms of state prisoners. See 257 F.3d 1077 (9th Cir. 2001).1
42. A discrete question is the standard for enlarging petitioners. To obtain an order for release pending the merits of habeas decision, the petitioner must demonstrate “extraordinary circumstances” and that the underlying claim raises “substantial claims.” See e.g. Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). Courts have also discussed that release is appropriate when “necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 226; see also Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992). As that Third Circuit decision explained, release was “available ‘only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances
1 Subsequent lower court cases debated whether district courts do possess such authority. See, e.g., Hall v. San Francisco Sup. Ct., 2010 WL 890044, at *2 (N.D. Cal. Mar. 8, 2010) (“Based on the overwhelming authority [of other circuit courts] in support, the court concludes for purposes of the instant motion that it has the authority to release Hall pending a decision on the merits.”); United States v. Carreira, 2016 U.S. Dist. LEXIS 31210, at *4, (D. Haw. Mar. 10, 2016) (“[T]his Court declines to address the merits of Petitioner’s bail requests in the absence of definitive guidance from the Ninth Circuit regarding the scope of this Court’s bail authority.”).
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exist which make the grant of bail necessary to make the habeas remedy effective.’”
43. Some judges have interpreted the “substantial questions” prong to require the underlying claim to have a “high probability of success.” See Hall v. San Francisco Superior Court, No. C 095299 PJH, 2010 WL 890044, *1 (N.D. Cal. Mar. 8, 2010); In re Souels, 688 F. App'x 134, 135 (3d Cir. 2017). That test resembles standards for preliminary injunctive relief and for stays, which include an assessment of the likelihood of success on the merits and of whether the balance of hardships tips in favor of altering the status quo. (And, of course, more can be said about the nuances of these bodies of law as well.)
44. A few cases focus on the health of a petitioner as central to the conclusion that “extraordinary circumstances” exist. For example, in Johnston v. Marsh, the petitioner, Alfred Ackerman, brought a habeas claim alleging that he was convicted in Pennsylvania through a trial that lacked “due process.” 227 F.2d 528 (3d Cir. 1955). Ackerman asked for release pending a decision on the merits of his habeas petition; he argued that he had advanced diabetes and was “rapidly progressing towards total blindness.” Id. at 529. The district court authorized Ackerman to be released to a private hospital. The prison warden (Frank Johnston) went to the Third Circuit invoking sought writs of prohibition and mandamus to order the district court (Judge Marsh) to change his ruling. Rejecting the petitions, the Third Circuit affirmed that district courts possessed the authority to order relocation while the habeas petition was pending. Johnson v. Marsh has been cited in more recent cases to illustrate that findings of extraordinary circumstances may “be limited to situations involving poor health or the impending completion of the prisoner’s sentence.” Landano, 970 F.2d at 1239.
45. The court in In re Souels addressed what showing of health problems constituted extraordinary circumstances. See 688 F. App’x at 135-36. Sean Souels, who was serving a 46-month federal prison sentence, petitioned for a writ of mandamus directing the court to rule on his writ of habeas corpus and sought release pending the decision. Id. at 134. The court denied Souels bail because “he [did] not describe his medical conditions in any detail or explain how he cannot manage his health issues while he is in prison.” Id.
46. Health is not the only extraordinary circumstance that has been the basis for enlargement. For example, in United States v. Josiah, William Josiah brought a writ of habeas corpus after
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the Supreme Court invalidated the residual clause of the Armed Career Criminal Act (ACCA) and altered the method for determining whether prior convictions qualify as violent felonies under the ACCA. 2016 WL 1328101, at *2 (D. Haw. Apr. 5, 2016). Josiah, who was serving a federal prison sentence argued that his prior convictions did not qualify as violent felonies and that he should not be subject to the fifteen-year mandatory minimum. The district court concluded that because the issue of retroactivity was pending before the Supreme Court and Josiah would have served his full sentence if the Court held its prior ruling retroactive, release pending the higher court’s ruling was appropriate. Id. at *4-6.
47. In circumstances similar to Josiah, a district judge sitting in the Central District of Illinois issued three orders granting release, termed bail, to petitioners pending resolution of their habeas claims. See Zollicoffer v. United States, No. 1503337, 2017 WL 79636 (C.D. Ill. Jan. 9, 2017); United States v. Jordan, No. 04-20008, 2016 WL 6634852 (C.D. Ill. Nov. 9, 2016); Swanson v. United States, No. 15-03262, 2016 WL 5422048 (C.D. Ill. Sept. 28, 2016).
48. Another case involved enlargement in the context of the military. See Gengler v. U.S. through its Dep't of Def. & Navy, 2006 WL 3210020, at *6 (E.D. Cal. Nov. 3, 2006). As that court explained, a “district court has the inherent power to enlarge a petitioner on bond pending hearing and decision on his petition for writ of habeas corpus.” Id. at *5. The judge also noted that a “greater showing must be made by a petitioner seeking bail in a criminal conviction habeas ‘than would be required in a case where applicant had sought to attack by writ of habeas corpus an incarceration not resulting from a judicial determination of guilt.’” The court used the test of “exceptional circumstances and, at a minimum, substantial questions as to the merits.” Id. at 13. The court found “exceptional circumstances” based on the fact that the petitioner had been admitted to business school, had been granted permission by his commanding officer to attend, and would be forced to drop out if his custody were not enlarged. The court also ruled that “substantial questions as to the merits” existed because of alleged government errors in drafting the petitioner’s service agreement. Id. at *6.
49. As of this writing, a few reported cases discuss COVIDbased requests for enlargement while a habeas corpus proceeding is pending. In addition, many decisions address requests for release under federal statutes as well as other remedies.
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50. Given the fast pace of litigation and the many concerns

about people’s well-being, UCLA has created a website that is

regularly updated and compiles materials and decisions related to

COVID. See UCLA Law Covid-19 Behind Bars Data Project, available

at

https://docs.google.com/spreadsheets/d/1X6uJkXXS-

O6eePLxw2e4JeRtM41uPZ2eRcOA_HkPVTk/edit#gid=708926660.

51. Below I provide a few illustrations of decisions since April that are related to COVID and enlargement.

52. On April 7, the Honorable Jesse Furman, sitting in the Southern District of New York, granted on consent a motion styled “for bail” (the term used in the Second Circuit Mapp decision). Judge Furman ordered immediate release under specified conditions, pending the adjudication of the Section 2255 Motion. See United States v. Nkanga, No. 18-CR-00730 (S.D.N.Y., Apr. 7, 2020).

53. A second case involves a class action filed by Craig Wilson and others. See Wilson v. Williams, No. 4:20-cv-00794-JG, 2020 WL 1940882, at *1 (N.D. Ohio Apr. 22, 2020). Seeking to represent a class of all current and future prisoners of the Elkton Federal Correctional Institution (FCI) and a subclass of the medically vulnerable population, they sought relief because their continued incarceration subjected all FCI prisoners to substantial risk of harm in violation of the Eighth Amendment.

54. On April 22, 2020, the federal district court granted in part the request by the Wilson class for emergency relief, which included enlargement of a subclass of prisoners challenging the manner in which the sentence was served and hence cognizable as a habeas petition. See Wilson v. Williams, No. 4:20-cv-00794-JG, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020). The Sixth Circuit denied a stay soon thereafter. See Wilson v. Williams, No. 4:20CV-00794, 2020 WL 2308441, at *1 (6th Cir. May 8, 2020).

55. The Wilson case also cited to Money v. Pritzker, No. 120 CV 02094, 2020 WL 1920660, at *1 (N.D. Ill. April 10, 2020), a class action seeking relief on behalf of state prisoners, and the Wilson court referenced that I had also submitted a declaration similar to this one in that action. In Money, I discussed enlargement as well as the interaction between civil rights litigation and habeas corpus. Id. at *8–9. The Honorable Robert M. Dow, Jr. invoked my discussion, and the court determined not to grant the emergency relief sought by the plaintiff class. Id.

56. On May 12, 2020, the Honorable Michael Shea issued another decision responding to a petition challenging treatment of

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prisoners at three facilities that compromise FCI Danbury. In Martinez-Brooks v. Easter, 3-20-cv-00569-MPS, 2020 WL 2405350 (D. Conn., May 12, 2020). Judge Shea granted in part the request for a temporary restraining order and required “the Warden at FCI Danbury to adopt a process for evaluating inmates with COVID-19 risk factors for home confinement and other forms of release that is both far more accelerated and more clearly focused on the critical issues of inmate and public safety than the current process.” Id. at *1. He also ordered expedited discovery and scheduled a June hearing on the request for a preliminary injunction. Id. In that opinion, Judge Shea discussed enlargement as he analyzed the relief sought by the petitioners. Id. at *2
57. Another case has less relevance as it was brought by an unrepresented litigant, Richard Peterson, who had originally sought habeas corpus relief on a claim about education credits and then filed an emergency request for release from a California state prison due to COVID-19. Peterson v. Diaz, No. 2:19-CV-01480, 2020 WL 1640008, at *1 (E.D. Cal. Apr. 2, 2020). The district court noted that a class action raising COVID claims was pending in another federal court in California and that, while the court had the authority to release a person while a habeas petition was pending, Mr. Peterson had not provided evidence sufficient to meet the test to do so. Id.
Conclusion
58. In sum, COVID-19 is an unprecedented event that, in my view, raises the legal question of whether, in light of the government mandates for social distancing, sentences (that had been lawful when they were imposed) cannot lawfully be served when the setting puts an individual in a position of untenable risk. Thus, habeas corpus – which addresses the constitutionality of sentences and offers the possibility of release and enlargement – properly provides a jurisdictional basis and remedies for this situation.
59. I need also to note that, in recent years, the Supreme Court has raised questions in many contexts about the remedial powers of federal judges. Whether the topic is nationwide injunctions or commercial contracts, debates have occurred within the Court about the authority of federal judges.
60. Those cases do not address the extraordinary and painful moment in which we are all living. Ordinary life has been up-ended in an effort to keep as many people as possible alive and not
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debilitated by serious illness. Moreover, the Supreme Court opinions have not focused on the relevance of those remedial debates to situations were confinement can put entire staffs and detained populations at mortal risk. Therefore, judges have the obligation and the authority to interpret statutes and the Constitution to preserve the lives of people living in and working in prisons. It is my hope that this account of earlier uses of enlargement and the dense account of case law and doctrine will be of service to this Court and to the parties in understanding the meaning and import of American law. Dated: May 14, 2020
__________________________ Judith Resnik
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Page1ID

Judith Resnik

Address Yale Law School 127 Wall Street, P.O. Box 208215 New Haven, CT 06520-8215

Tel: (203) 432-1447 Fax: (203) 432-1719 Email: judith.resnik@yale.edu

Employment Arthur Liman Professor of Law, Yale Law School, 1997-present Founding Director, Arthur Liman Center for Public Interest Law Honorary Visiting Professor, University College London Faculty of Law, 2009-2021 Visiting Professor, Dauphine Université Paris, March 2016 Visiting Professor, Université Panthéon-Assas Paris II, May 2015 Convening Professor, Constituting Federalism, a seminar for the Institute for Constitutional History in conjunction with the New York Historical Society, February 2014 Scholar in Residence, Columbia Law School, Spring 2011; 2012 Distinguished Visiting Professor, University of Toronto School of Law, 2005 Parsons Visitor, Sydney University School of Law, 2004
Visiting Professor, New York University School of Law, 1996-1997 Visiting Professor, Harvard Law School, Fall 1989 Visiting Professor, Yale Law School, Spring 1989 Visiting Professor, University of Chicago Law School, Fall 1988
Orrin B. Evans Professor of Law, University of Southern California, 1989-1997; Professor of Law: 1985-1989; Associate Professor: 1982-1985; Assistant Professor: 1980-1982 Member, Faculty, The Salzburg Seminar on U.S. Legal Institutions, July 1988
Acting Director, Daniel and Florence Guggenheim Program in Criminal Justice, Yale Law School, 1979-1980
Lecturer in Law and Supervising Attorney, Yale Law School, 1977-1979
Instructor, New York University School of Law, 1976-1977
Law Clerk, Honorable Charles E. Stewart, United States District Court, Southern District of New York, 1975-1976
Selected Professional Activities Chair of Fellows Selection Committee and Founding Director, Arthur Liman Center for Public Interest Law, Yale Law School, 1997-present

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Chair, Yale Law School Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2012-present
Member, Board of Managerial Trustees, International Association of Women Judges, 2001-present
Chair, Order of the Coif Book Award Committee, 2018-2020 Fellow, Whitney Humanities Center, 2020-2021 Chair, American Association of Law Schools, Section on Law and Humanities, 2020 Chair, American Association of Law Schools, Section on its Sections, 2019-2022 Advisor, American Law Institute, Project on Sexual and Gender-Based Misconduct on
Campus, 2015-present Member, Task Force on Federal Judicial Selection, Project on Government Oversight of
The Constitution Project, 2019 Steering Committee, Women Faculty Forum, Yale University, 2001-present
Co-chair, 2001-2003, 2006-2008 Co-Chair, Judicial-Academic Network, National Association of Women Judges,
2009-2019, 1998-2001 Academic Fellow, Pound Civil Justice Institute, 2016-present Fellow, Davenport College, Yale University, 2002-present Former Chair, Section on Civil Procedure, American Association of Law Schools;
2018, 2003, 1991 Member, Executive Committee, Section on Federal Courts, American Association of
Law Schools, 1999-2004, 2014-present; chair, 2002 Member, Executive Committee, Section on Law and the Humanities, American
Association of Law Schools, 2015-present Member, Academic & Scientific Council, The Gender Equality Project, Switzerland,
2009-present Advisor, European Law Institute and International Institute for the Unification of Private
Law Project, From Transnational Principles to Rules of European Civil Procedure, 2015-2016 Member, Executive Session, State Courts in the Twenty-First Century, The Kennedy School, Harvard University, 2008-2011 Member, Advisory Group, Principles of the Law of Aggregate Litigation, American Law Institute, 2004-2009 Member, Standing Committee on Federal Judicial Improvements, American Bar Association, 2006-2010 (prior three-year term in the late 1990s); Chair, Academic Advisory Committee to the Standing Committee on Federal Judicial Improvements, American Bar Association, 2010-2014 Member, Editorial Board, Yale Journal of Law and Feminism Member, Editorial Advisory Board, Yale Journal of Law and the Humanities Member, Advisory Board, Journal of Law and Ethics of Human Rights Member, Advisory Board, Litigation and Procedure, and Negotiation and Dispute Resolution eJournals (Social Science Research Network, online) Member, Advisory Board, Women’s Studies Quarterly

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Other Activities Co-chair of the Board, Fansler Foundation, 2003-2014 Member, National Board of Academic Advisors for the William H. Rehnquist Center on the Constitutional Structures of Government, 2007-2009 Member, Advisory Board of the Science for Judges Project, Brooklyn Law School, 2003-2007 Board Member, Lawyers’ Committee for Civil Rights, 2004-2007 Liaison, American Association of Law Schools to the American Bar Association Commission on Women, 2000-2005 Member, Advisory Board of the Center for Judicial Process, Albany Law School, 2000-2004 Member, Editorial Board, Law and Social Inquiry, 1998-2004 Member, Committee on Diversity in Legal Education of the Section of Legal Education and Admissions to the Bar of the American Bar Association, 1996-2002 Consultant, RAND, Institute for Civil Justice, 1980-2002 Member, Editorial Board, The Justice System Journal Member, Board of Governors, Society of American Law Teachers, 1980-1997 Co-Chair, University of Southern California Feminist Council, 1990-1996 Member, Ninth Circuit Gender Bias Task Force, 1990-1994 Co-Chair, Robert M. Cover Memorial Public Interest Retreat, Society of American Law Teachers, 1988-1992 Member of and a general reporter for the International Association of Procedural Law, 1991 Conference Member, Planning Committee, ABA-AALS Conference on Women in Legal Education, 1990 Member, Advisory Panel to a Subcommittee of the Federal Courts Study Committee, 1989-1990 Member, Steering Committee for the Center for Feminist Research, University of Southern California, 1990-1994 Member, American Bar Association, Litigation Section, Federal Initiatives Task Force, 1991-1993 Chair, Section on Women in Legal Education, American Association of Law Schools, 1989 Member, Twentieth Century Fund Task Force on Judicial Responsibility, 1988-1989 Member, Board of ACLU of Southern California, 1985 Chair, Bryn Mawr College Centennial Campaign for Southern California, 1983-1985

Courses taught at Yale Law School, 1997-2020 Federal and State Courts in the Federal System Procedure Equality, Sovereignty and Citizenship (with Prof. Reva Siegel) Gender: Globally and Locally (with Prof. Vicki Jackson) Liman Workshops (topics and co-teachers vary yearly) Rationing Law: Subsidizing Access to Justice in Democracies Poverty and the Courts: Fines, Fees, Bail, and Collective Redress

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Who Pays? Fines, Fees, Bail, and the Cost of Courts Imprisoned Human Rights, Incarceration, and Criminal Justice Reform Moving Criminal Justice: Practices of Reform Incarceration Borders Rationing Law: Constitutional Entitlements to Courts in an
Era of Fiscal Austerity Abolition: Slavery, Supermax, and Social Movements Accessing Justice and Rights – From Streets to Prisons Community, Confinement, Labor, and Rights Equality, Punishment, and Incarceration Imprisoned Detention Federalism and Social Movements: Public Interest Lawyering
in Cities and States Citizenship Constitutional Law as Public Interest Law

Publications Books and Monographs

Fragile Futures and Resiliency: Litigating Climate Change, Judging Under Stress (coeditor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2019)

Ability to Pay (co-editors Anna VanCleave, Alexandra Harrington, Jeff Selbin, Lisa Foster, Joanna Weiss, Faith Barksdale, Alexandra Eynon, Stephanie Garlock, and Daniel Phillips, Arthur Liman Center for Public Interest Law Colloquium, 2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3387647

Working to Limit Restrictive Housing: Efforts in Four Jurisdictions to Make Changes (editor, Arthur Liman Center for Public Interest Law and Association of State Correctional Administrators, 2018).

Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-inCell (co-author, Arthur Liman Center for Public Interest Law and Association of State Correctional Administrators, 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3264350

Global Reconfigurations, Constitutional Obligations, and Everyday Life (co-editor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2018)

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Who Pays? Fines, Fees, Bail, and the Cost of Courts (co-editors Anna VanCleave, Kristen Bell, Skylar Albertson, Natalia Friedlander, Illyana Green, and Michael Morse, Arthur Liman Center for Public Interest Law Colloquium, 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3165674

Reconstituting Constitutional Orders (co-editor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2017)

Aiming to Reduce Time-In-Cell: Reports from Correctional Systems on the Numbers of Prisoners in Restricted Housing and on the Potential of Policy Changes to Bring About Reforms (co-author, Yale Law School Arthur Liman Public Interest Program and Association of State Correctional Administrators, 2016)

Rethinking ‘Death Row’: Variations in the Housing of Individuals Sentenced to Death (co-authors Celina Aldape, Ryan Cooper, Katie Haas, April Hu, Jessica Hunter, and Shellie Shimizu, Arthur Liman Public Interest Program, 2016), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2874492

Acts of State, Acts of God (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2016)

Time-in-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison (co-author, Yale Law School Arthur Liman Public Interest Program and Association for State Correctional Administrators, 2015), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2655627

The Reach of Rights (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2015)

The Invention of Courts, Daedalus: Journal of the American Academy of Arts and Sciences (co-editor Linda Greenhouse, Summer 2014)

Isolation and Reintegration: Punishment Circa 2014 (co-editors Hope Metcalf and Megan Quattlebaum, Arthur Liman Public Interest Program Colloquium, 2014)

Sources of Law and of Rights (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2014)

Governments’ Authority (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2013)

Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies (co-authors Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Julia Spiegel, Haran Tae, Alyssa

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Work, and Brian Holbrook , Arthur Liman Public Interest Program, 2013), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2286861

Law’s Borders (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2012)

Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (with Dennis E. Curtis, Yale University Press, 2011)

Federal Courts Stories (co-editor Vicki Jackson, Foundation Press, 2010)

Migrations and Mobilities: Citizenship, Borders, and Gender (co-editor Seyla Benhabib, New York University Press, 2009)

The Processes of the Law: Understanding Courts and Their Alternatives (Foundation Press, 2004)

Adjudication and Its Alternatives: An Introduction to Procedure (with Owen Fiss, Foundation Press, 2003)

The Effects of Gender: The Final Report of the Ninth Circuit Gender Bias Task Force (July 1993) (with The Hon. John C. Coughenour, The Hon. Proctor Hug, Jr., The Hon. Marilyn Patel, Terry W. Bird, Deborah R. Hensler, M. Margaret McKeown, and Henry Shields, Jr.), also reprinted in 67 Southern California Law Review 745 (1994)

Procedure (with Robert Cover and Owen Fiss, Foundation Press, 1988)

The Federal Procedural System: A Rule and Statutory Source Book (with Robert Cover and Owen Fiss, Foundation Press, 1988, 1989, 1991)

Chapters in Books Not Isolating Isolation, in Solitary Confinement: History, Effects, and Pathways to
Reform at 89-114 (Jules Lobel and Peter Scharff-Smith, eds., Oxford University Press, 2020)

Courts and Economic and Social Rights/Courts as Economic and Social Rights, in The Future of Economic and Social Rights at 259-286 (Katharine G. Young, ed., Cambridge University Press, 2019)

The Functions of Publicity and of Privatization in Courts and their Replacements (from Jeremy Bentham to #MeToo and Google Spain) in Open Justice: The Role of Courts in a Democratic Society at at 177-252 (Burkhard Hess and Ana Koprivica, eds., Max Planck Institute, Luxembourg, Nomos, 2019)

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Judicial Methods of Mediating Conflicts: Recognizing and Accommodating Differences in Pluralist Legal Regimes, in Judicial Power: How Constitutional Courts Affect Political Transformations at 250-280 (Christine Landfried, ed., Cambridge University Press, 2019)

On Darkness and Light in Legal Imagination and in Practice, in The Dark Sides of the Law: Perspectives on Law, Literature, and Justice in Common Law Countries at 13-29 (Geraldine Gadbin-George, Yvonne-Marie Rogez, Armelle Sabatier, and Claire Wrobel, eds., Editions Michel Houdiard, 2019)

Bordering by Law: The Migration of Law, Crimes, Sovereignty, and the Mail, in Nomos LVII: Immigration, Emigration, and Migration, at 79-201 (Jack Knight, ed., New York University Press, 2017)

Why Eyes? Cautionary Tales from Law’s Blindfolded Justice (with Dennis E. Curtis), in Blinding as a Solution to Bias in Biomedical Science and the Courts: A Multidisciplinary Approach, at 227-247 (Aaron Kesselheim and Christopher Robertson, eds., Elsevier Press, 2016)

Constructing the “Foreign:” American Law’s Relationship to Non-Domestic Sources, in Courts and Comparative Law, at 437-471 (Mads Andrenas and Duncan Fairgrieve, eds., Oxford University Press, 2015)

Epistemological Doubt and Visual Puzzles of Sight, Knowledge, and Judgment: Reflections on Clear-Sighted and Blindfolded Justices (with Dennis E. Curtis), in Genealogies of Legal Vision, at 201-242 (Peter Goodrich and Valérie Hayaert, eds., London: Routledge, 2015)

Federalism(s)’s Forms and Norms: Contesting Rights, De-Essentializing Jurisdictional Divides, and Temporizing Accommodations, in Nomos LV: Federalism and Subsidiarity, at 363-435 (James E. Fleming and Jacob T. Levy, eds., New York University Press, 2014)

Constructing Courts: Architecture, the Ideology of Judging, and the Public Sphere (with Dennis E. Curtis and Allison Tait), in Law, Culture & Visual Studies, at 547-572 (Richard K. Sherwin and Anne Wagner, eds., Springer Publishing Company, 2013)

“Hear the Other Side:” Miranda, Guantánamo, and Public Rights to Fairness and Dignity, in Law and the Quest for Justice, at 85-109 (Marjorie S. Zatz, Doris Marie Provine, and James P. Walsh, eds., Quid Pro Books, 2013)

Old and New Depictions of Justice: Reflections, Circa 2011, on Hill-Thomas, in I Still Believe Anita Hill, at 51-70 (Amy Richards and Cynthia Greenberg, eds., The Feminist Press, 2012)

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Changing the Climate: The Role of Translocal Organizations of Government Actors (TOGAs) in American Federalism(s), in Navigating Climate Change Policy: The Opportunities of Federalism, at 120-143 (Edella C. Schlager, Kirsten H. Engel, and Sally Rider, eds., The University of Arizona Press Tucson, 2011)
Sisterhood, Slavery and Sovereignty: Transnational Women’s Rights Movements from 1840 through the Beginning of the Twenty-first Century, in Women’s America: Seventh Edition, at 781-790 (Linda Kerber, Cornelia Hughes Dayton, and Jane De Hart, eds., Oxford University Press, 2010)
New Federalism(s): Translocal Organizations of Government Actors (TOGAs) Reshaping Boundaries, Policies, and Laws, in Why the Local Matters: Federalism, Localism, and Public Interest Advocacy, at 83-99 (published by the Liman Public Interest Program at Yale Law School, and the National State Attorneys General Program at Columbia Law School, 2010)
Managerial Judges, Jeremy Bentham and the Privatization of Adjudication, in Common Law, Civil Law and the Future of Categories, at 205-224 (Janet Walker and Oscar G. Chase, eds., LexisNexis Canada, 2010), also published in 49 S.C.L.R. (2d) 205 (2010)
What’s Federalism For?, in The Constitution 2020, at 269-284 (Jack Balkin and Reva Siegel, eds., Oxford University Press, 2009)
Judicial Independence, in Global Perspectives on Constitutional Law, at 15-33 (Vikram David Amar and Mark V. Tushnet, eds., Oxford University Press, 2008)
From “Rites” To “Rights” of Audience: The Utilities and Contingencies of the Public’s Role in Court-Based Processes (with Dennis E. Curtis) in Representation of Justice, at 195-236 (Antoine Masson and Kevin O’Connor, eds., P.I.E. - Peter Lang, 2007)
Sisterhood, Slavery, and Sovereignty: Transnational Antislavery Work and Women’s Rights Movements in the United States During the Twentieth Century, in Women’s Rights and Transatlantic Antislavery in the Era of Emancipation, at 1954 (Kathryn K. Sklar and James Brewer Stewart, eds., Yale University Press, 2007)
Gendered Borders and United States’ Sovereignty, in Women and Immigration Law: New Variations on Classical Feminist Themes, at 44-63 (S.K. Van Walsum and T. Spijkerboer, eds., Routledge-Cavendish Press, 2006)
Contracting Civil Procedure, in Law and Class in America: Trends Since the Cold

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War, at 60-86 (Paul Carrington and Trina Jones, eds., New York University Press, 2006)

Democratic Responses to the Breadth of Power of the Chief Justice, in Reforming the Court: Term Limits for Supreme Court Justices, at 181-200 (Paul D. Carrington and Roger C. Cramton, eds., Carolina Academic Press, 2006)

Composing a Judiciary: Reflections on Proposed Reforms in The United Kingdom on How to Change the Voices of and the Constituencies for Judging, in Constitutional Innovation: The Creating of A Supreme Court for the United Kingdom; Domestic, Comparative and International Reflections, A Special Issue of Legal Studies, at 228-252 (Derek Morgan, ed., LexisNexis, United Kingdom, 2004)

The Story of Goldberg: Why This Case Is Our Shorthand, in Civil Procedures Stories: An In-Depth Look at the Leading Civil Procedure Cases, at 473-508 (Kevin M. Clermont, ed., Foundation Press, 2004; 2nd ed., 2007)

Federalism(s), Feminism, Families, and the Constitution, in Women and the United States Constitution: History, Interpretation, and Practice, at 127-152 (Sybil A. Schwarzenbach and Patricia Smith, eds., Columbia University Press, 2004)

The Rights of Remedies: Collective Accountings for and Insuring Against the Harms of Sexual Harassment in Directions in Sexual Harassment Law, at 247-271 (Reva Siegel and Catherine MacKinnon, eds., University Press, 2004)

Civil Processes, in Oxford Handbook of Legal Studies, at 478-772 (Peter Cane and Mark Tushnet, eds., Oxford Press, 2003)

Women, Meeting (Again), In and Beyond the United States, Afterword to The Difference Difference Makes: Women and Leadership, at 203-216 (Deborah L. Rhode, ed., Stanford University Press, 2003)

Procedure: Legal Aspects (Vol.18), in International Encyclopedia of the Social & Behavioral Sciences, at 12136-12141 (Neil J. Smelser and Paul B. Baltes, eds., Elsevier Press, 2001)

Contested Identities: Task Force on Gender, Race, and Ethnic Bias and the Obligations of the Legal Profession (with Deborah Hensler) in Ethics in Practice, Lawyers’ Roles, Responsibilities, and Regulation, at 240-263 (Deborah L. Rhode, ed., Oxford University Press, 2000)

Federal Judicial Role (Vol. III); Single-Sex Education (Vol. V); Procedural Due Process Civil (Update I, Vol. IV), in The Encyclopedia of the American Constitution, 2nd

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edition, (Leonard Levy, Kenneth L. Karst, Adam Winkler, Dennis J. Mahoney, and John G. West, Jr., eds., Macmillan, 2000)

Singular and Aggregate Voices: Audiences and Authority in Law & Literature and in Law & Feminism, in Law and Literature: Current Legal Issues, Vol. II, at 687727 (Michael Freeman and Andrew D. E. Lewis, eds., Oxford University Press, 1999)

Foreword (with Carolyn Heilbrun) to Beyond Portia: Women, Law & Literature in the United States, at 11-52 (Jacqueline St. Joan and Annette Bennington McElhiney, eds., Northeastern University Press, 1997)

Procedure, in Looking at Law School, at 177-195 (Stephen Gillers, ed., Penguin Books, NY, 4th ed., 1997; 3rd ed., 1990)

From the Senate Judiciary Committee to the County Courthouse: The Relevance of Gender, Race, and Ethnicity to Adjudication, in Race, Gender, and Power in America, The Legacy of the Hill-Thomas Hearings, at 177-227 (Anita Hill and Emma Jordan, eds., Oxford Press, 1995)

Gender in the Courts: The Task Force Reports, in The Woman Advocate, Excelling in the 90’s, at 3-38 (Jean Maclean Snyder and Andra Barmash Greene, eds., Prentice Hall Law & Business, 1995)

Finding the Factfinders, in Verdict: Assessing the Civil Justice System, at 500-530 (Robert E. Litan, ed., Brookings, May 1993)

Independent and Inter-dependent: The Ninth Circuit and the Federal Judiciary, in Restructuring Justice, at 321-330 (Arthur Hellman, ed., Cornell Press, 1990)

The Perception of Justice: Tort Litigants’ Views of Trial, Court-Annexed Arbitration, and Judicial Settlement Conferences (with E. Allan Lind, Robert MacCoun, Patricia Ebener, William L.F. Felstiner, Deborah R. Hensler, and Tom R. Tyler), The RAND Corporation, Institute for Civil Justice (1989)

Should Prisoners Be Classified by Sex?, in Criminal Corrections: Ideals and Realities, at 109-123 (J. Doig, ed., Mass: Lexington Books, Fall 1982)

Discrimination in Education, Chapter XXVIII in Dorsen, Bender, Neuborne, and Law, in Political and Civil Rights in the United States, at 107-173 (Little Brown, 1979, Supplement, 1981)

Prisoners of Their Sex: Health Problems of Incarcerated Women (with Nancy Shaw) in Prisoners’ Rights Sourcebook: Theory, Practice, and Litigation, Vol. II, at 319-

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413 (Ira Robbins, ed., N.Y.: Clark Boardman, 1980, reprinted in 3 Prison Law Monitor 57-58, March 1981)

Federal Prisoners’ Access to Federal Courts: Jurisdiction and Related Procedural Matters, Prisoners Rights, at 85-158 (N.Y.: PLI, 1979)

Undelivered Care: The Incapacitated and the Mentally Ill New York City Defendant, A Report to the Mayor's Criminal Justice Coordinating Council (August 1973) (co-authored)

Articles Constituting Security and Fairness: Reflecting on Charles Reich’s Imagination and
Impact, 129 Yale Law Journal Forum 707 (2020)

Inability to Pay: Court Debt Circa 2020 (with David Marcus), 98 North Carolina Law Review 361 (2020)

(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin,” 129 Yale Law Journal Forum 365 (2020)

Book Review: The Challenges of Engaging “The Art of Law: artistic representations and iconography of law and justice in context, from the middle ages to the first world war,” in 7 Comparative Legal History 239 (2019)

Sentencing Inside Prisons: Efforts to Reduce Isolating Conditions (with Kristen Bell), 87 University of Missouri Kansas City Law Review 133 (2018)

A2J/A2K: Access to Justice, Access to Knowledge, Economic Inequalities, and Open Courts and Arbitrations, 96 North Carolina Law Review 605 (2018)

Reorienting the Process Due: Using Jurisdiction to Forge Post-Settlement Relationships Among Litigants, Courts, and the Public in Class and Other Aggregate Litigation, 92 New York University Law Review 1017 (2017)

“Vital” State Interests: From Representative Actions for Fair Labor Standards to Pooled Trusts, Class Actions, and MDLs in the Federal Courts, 165 University of Pennsylvania Law Review 1765 (2017)

Lawyers’ Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration Mandates, and Privatized Processes, 85 Fordham Law Review 1899 (2017)

Accommodations, Discounts, and Displacement: The Variability of Rights as a Norm of Federalism(s), 17 Jus Politicum 209 (2017)

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“Within Its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proceedings of the American Philosophical Society 117 (2016)

Revising Our “Common Intellectual Heritage”: Federal and State Courts in Our Federal System, 91 Notre Dame Law Review 1831 (2016)

Time-In-Cell: Isolation and Incarceration (with Sarah Baumgartel and Johanna Kalb), 125 Yale Law Journal Forum (2016); http://www.yalelawjournal.org/forum/time-in-cell-isolation-and-incarceration

The Contingency of Openness in Courts: Changing the Experiences and Logics of Publics’ Role in Court-Based ADR, 15 Nevada Law Journal 1631 (2015)

Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale Law Journal 2804 (2015); published in Portuguese in Grandes Temas do Novo CPC: Justiça Multiportas: Mediação, Conciliação, Arbitragem e Outros Meios de Solução Adequada Para Conflitos (DIDIER JR., Fredie; ZANETI JR., Hermes; CABRAL, Tricia Xavier Navarro eds., Salvador: JusPodvim, 2016))

Reinventing Courts as Democratic Institutions, Daedalus: Journal of the American Academy of Arts and Sciences 9 (Summer 2014)

The Privatization of Process: Requiem for and Celebration of the Federal Rules of Civil Procedure at 75, 162 University of Pennsylvania Law Review 1793 (2014)

Inventing Democratic Courts: A New and Iconic Supreme Court (with Dennis E. Curtis), 38 Journal of Supreme Court History 207 (2013)

Gideon at Guantánamo: Democratic and Despotic Detention (with Hope Metcalf), 122 Yale Law Journal 2504 (2013)

Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies (with Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Julia Spiegel, Haran Tae, Alyssa Work, and Brian Holbrook) (2013)

The Democracy in Courts: Jeremy Bentham, ‘Publicity’, and the Privatization of Process in the Twenty-First Century, NoFo 10 (2013)

Globalization(s), privatization(s), constitutionalization and statization: Icons and
experiences of sovereignty in the 21st century, 11 International Journal of Constitutional Law (IꞏCON) 162 (2013)

Equality’s Frontiers: Courts Opening and Closing, 122 Yale Law Journal

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Online 243 (2013)

Opening the Door: Ruth Bader Ginsburg, Law’s Boundaries, and the Gender of Opportunities, 25 Columbia Journal of Gender and Law 81 (2013)

Constitutional Entitlements to and in Courts: Remedial Rights in an Age of Egalitarianism: The Childress Lecture, 56 St. Louis University Law Journal 916 (2012)

Comparative (In) equalities: CEDAW, the jurisdiction of gender, and the heterogeneity
of transnational law production, 10 International Journal of Constitutional Law (IꞏCON) 531 (2012)

Building the Federal Judiciary (Literally and Legally): The Monuments of Chief Justices Taft, Warren, and Rehnquist, 87 Indiana Law Journal 823 (2012)

Re-Presenting Justice: Visual Narratives of Judgment and the Invention of Democratic Courts (with Dennis E. Curtis), 24 Yale Journal of Law and the Humanities 19 (2012)

Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 Harvard Law Review 78 (2011)

The Production and Reproduction of Constitutional Norms, 35 New York University Review of Law & Social Change 226 (2011)

Bring Back Bentham: “Open Courts,” “Terror Trials,” and Public Sphere(s), 5 Law & Ethics of Human Rights 226 (2011)

Compared to What?: ALI Aggregation and the Shifting Contours of Due Process and of Lawyers’ Powers, 79 George Washington Law Review 628 (2011)

Reading Reinhardt: The Work of Constructing Legal Virtue (Exempla Iustitiae), 120 Yale Law Journal 539 (2010)

Kyoto at the Local Level: Federalism and Translocal Organizations of Government Actors (TOGAs) (with Joshua Civin and Joseph Frueh), 40 Environmental Law Reporter 10768 (2010)

Detention, The War on Terror, and the Federal Courts, 110 Columbia Law Review 579 (2010)

The Internationalism of American Federalism: Missouri and Holland (Earl F. Nelson Memorial Lecture), 73 Missouri Law Review 1105 (2009)

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Courts: In and Out of Sight, Site, and Cite, 53 Villanova Law Review 771 (2008)

Interdependent Federal Judiciaries: Puzzling about Why and How to Value the Independence of Which Judges, Daedalus 28 (2008)

Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs) (with Joshua Civin and Joseph Frueh), 50 Arizona Law Review 709 (2008)

Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: “The Political Safeguards” of Aggregate Translocal Actions, 156 University of Pennsylvania Law Review 1929 (2008)

Law as Affiliation: “Foreign” Law, Democratic Federalism, and the Sovereigntism of the Nation-State, 6 International Journal of Constitutional Law (IꞏCON) 33 (2008)

Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism, 57 Emory Law Journal 31 (2007)

Representing Justice: From Renaissance Iconography to Twenty-First Century Courthouses (with Dennis E. Curtis), Henry la Barre Jayne Lecture, 151 Proceedings of the American Philosophical Society 139 (2007)

Roscoe Pound Round-Table Discussion, in Conference of Chief Justices and Council on State Court Administrators Symposium, 82 Indiana Law Journal 1157 (2007)

No Daubert Hearing Necessary: The Extraordinary Expertise of Margaret Berger, 16 Journal of Law and Policy 6 (2007)

Whither and Whether Adjudication?, 86 Boston University Law Review 1101 (2006)

Uncovering, Disclosing, and Discovering How the Public Dimensions of CourtBased Processes Are at Risk, 81 Chicago-Kent Law Review 521 (2006)

Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States (with Lane Dilg), 154 University of Pennsylvania Law Review 1575 (2006)

Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry, 115 Yale Law Journal 1564 (2006)

Living Their Legal Commitments: Paideic Communities, Courts and Robert Cover, 17 Yale Journal of Law & the Humanities 17 (2005)

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Procedure as Contract, 80 Notre Dame Law Review 593 (2005)

Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo Law Review 579 (2005)

Procedure’s Projects, 23 Civil Justice Quarterly 273 (2004)

Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts, 3 Journal of Empirical Legal Studies 783 (2004)

Tribes, Wars, and the Federal Courts: Applying the Myths and the Methods of Marbury v. Madison to Tribal Courts’ Criminal Jurisdiction, 36 Arizona State Law Journal 77 (2004)

The Independence of the Federal Judiciary, in Proceedings of the American Academy of Arts and Sciences, 17 Bulletin 22 (2004)

For Owen M. Fiss: Some Reflections on the Triumph and the Death of Adjudication, 58 University of Miami Law Review 173 (2003)

A Continuous Body: Ongoing Conversations About Women and Legal Education, 53 Journal of Legal Education 564 (2003)

Of Courts, Agencies, and the Court of Federal Claims: Fortunately Outliving One’s Anomalous Character, 71 George Washington Law Review 798 (2003)

Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty (with Julie Suk), 55 Stanford Law Review 1921 (2003)

Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 Indiana Law Journal 223 (2003)

Reconstructing Equality: Of Justice, Justicia, and the Gender of Jurisdiction, 14 Yale Journal of Law and Feminism 393 (2002)

Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement, 2002 University of Missouri-Columbia Journal of Dispute Resolution 155 (2002)

Teaching Billing: Metrics of Value in Law Firms and Law Schools (with Dennis E. Curtis), 54 Stanford Law Review 1409 (2002)

“Uncle Sam Modernizes His Justice”: Inventing the Federal District Courts of the Twentieth Century for the District of Columbia and the Nation, 90 Georgetown Law Journal 607 (2002)

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Remarks, Bicentennial Celebration for the Courts of the District of Columbia Circuit, 204 Federal Rules of Decision 499 (2002)
Grieving Criminal Defense Lawyers (with Dennis E. Curtis), 70 Fordham Law Review 1615 (2002)
Engendering Democracy through Understanding Federal Family Law, 11 The Good Society (A PEGS Journal) 79 (2002)
Tribute to Norman Dorsen, 58 Annual Survey of American Law 29 (2001)
Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 Yale Law Journal 619 (2001)
Procedure: Legal Aspects, 18 International Encyclopedia of the Social & Behavioral Sciences (eds. Neil Smelser and Paul Baltes) 12136 (2001)
The Modernity of Judging: Judicial Independence and the 20th Century United States Federal Courts, presented at The 1701 Conference, Vancouver, British Columbia, Canada, May 9-11, 2001, on the 300th anniversary of the 1701 Act of Settlement
The Programmatic Judiciary: Lobbying, Judging, and Invalidating the Violence Against Women Act, 74 Southern California Law Review 269 (2000)
Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation, 148 University of Pennsylvania Law Review 2119 (2000)
Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harvard Law Review 924 (2000)
Judicial Independence and Article III: Too Little and Too Much, 72 Southern California Law Review 657 (1999)
Legal Services: Then and Now (with Emily Bazelon), 17 Yale Law & Policy Review 292 (1998)
The Federal Courts and Congress: Additional Sources, Alternative Texts, and Altered Aspirations, 86 Georgetown Law Journal 2589 (1998)
“The Federal Courts”: Constituting and Changing the Topic, 32 University of Richmond Law Review 603 (1998)
On the Margin: Humanities and Law, 10 Yale Journal of Law and the

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Humanities 413 (1998)

Contingency Fees in Mass Torts: Access, Risk and the Provision of Legal Services When Layers of Lawyers Work for Individuals and Collectives of Clients (with Dennis E. Curtis), 47 DePaul Law Review 425 (1998)

Changing Practices, Changing Rules: Judicial and Congressional Rulemaking in Civil Juries, Civil Justice, and Civil Judging, in a Symposium, Evaluation of the Civil Justice Reform Act, 49 Alabama Law Review 133 (1997); also published in Canadian Institute for the Administration of Justice, The Administration of Justice in Commercial Disputes 149 (1997)

Litigating and Settling Class Actions: The Prerequisites of Entry and Exit, 30 U.C. Davis Law Review 835 (1997)

Afterword: Federalism’s Options, Symposium Issue: Yale Law & Policy Review/Yale Journal on Regulation 465 (1996)

Changing the Topic, 7 The Australian Feminist Law Journal 95 (1996); also published in 8 Cardozo Studies in Law and Literature 339 (Fall/Winter 1996)

Asking About Gender in Courts, 21 Signs: Journal of Women in Culture and Society 952 (Summer 1996)

Individuals Within the Aggregate: Relationships, Representation, and Fees (with Dennis E. Curtis and Deborah Hensler), 71 New York University Law Review 296 (1996)

History, Jurisdiction, and the Federal Courts: Changing Contexts, Selective Memories, and Limited Imagination, 98 West Virginia Law Review 171 (1995)

Sentencing Women, 8 Federal Sentencing Reporter 134 (1995)

Aggregation, Settlement, and Dismay, 80 Cornell Law Review 918 (1995)

Procedural Innovations, Sloshing Over: A Comment on Deborah Hensler, A Glass Half Full, a Glass Half Empty: The Use of Alternative Dispute Resolution in Mass Personal Injury Litigation, 73 Texas Law Review 1627 (1995)

Multiple Sovereignties: Indian Tribes, States, and the Federal Government, 79 Judicature 118 (1995)

Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication, 10 Ohio State Journal on Dispute Resolution 211 (1995)

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Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA Law Review 1471 (1994); also published by RAND, Institute for Civil Justice (1995).

National Courts: Imagining Alternatives to State and Federal Courts, Southern California Law Review 2 (Spring 1995)

Rereading “The Federal Courts:” Revising the Domain of Federal Courts Jurisprudence at the End of the Twentieth Century, 47 Vanderbilt Law Review 1021 (1994)

The Future of Civil Litigation: A Panel Discussion in Symposium, Reinventing Civil Litigation: Evaluating Proposals for Change, 59 Brooklyn Law Review 1199 (1994)

Ambivalence: The Resiliency of Legal Culture in the United States, 45 Stanford Law Review 1525 (1993)

Gender Bias: From Classes to Courts, 45 Stanford Law Review 2195 (1993)

Revising the Canon: Feminist Help in Teaching Procedure, Introduction to a Symposium, 61 University of Cincinnati Law Review 1181 (1993)

Hearing Women, 65 Southern California Law Review 1333 (1992)

“Naturally” Without Gender: Women, Jurisdiction, and the Federal Courts, 66 New York University Law Review 1682 (1991)

Visible on Women’s Issues, 77 Iowa Law Review 41 (1991)

From “Cases” to “Litigation,” 54 Law and Contemporary Problems 5 (1991); also published by RAND, Institute for Civil Justice (1991)

Housekeeping: The Nature and Allocation of Work in the Federal Trial Courts, 24 Georgia Law Review 909 (1990)

In the Eye of the Beholder: Tort Litigants’ Evaluations of their Experiences in the Civil Justice System (with E. Allan Lind, Robert J. MacCoun, Patricia Ebener, William L.F. Felstiner, Deborah R. Hensler, and Tom R. Tyler), 24 Law & Society Review 953 (1990); related monograph, The Perception of Justice; also published by RAND, Institute for Civil Justice (1989)

Feminism and the Language of Judging, 22 Arizona State Law Journal 31 (1990)

Changing Criteria for Judging Judges, 84 Northwestern University Law Review 889 (1990)

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Convergences: Law, Literature, and Feminism (with Carolyn Heilbrun), 99 Yale Law Journal 1913 (1990)
Constructing the Canon, 2 Yale Journal of Law and the Humanities 221 (Winter 1990)
Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 University of Chicago Law Review 671 (1989)
Complex Feminist Conversations, University of Chicago Legal Forum 1 (1989)
The Domain of Courts, 137 University of Pennsylvania Law Review 2219 (1989)
On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 Southern California Law Review 1877 (1988)
The Limits of Parity in Prison, 13 Journal of the National Prison Project 26 (1987)
Due Process: A Public Dimension, in Conference on Procedural Due Process: Liberty and Justice, 39 University of Florida Law Review 405 (1987)
Judging Consent, University of Chicago Legal Forum 43 (1987)
Images of Justice (with Dennis E. Curtis), 96 Yale Law Journal 1727 (1987)
Failing Faith: Adjudicatory Procedure in Decline, 53 University of Chicago Law Review 494 (1986); also published by RAND, Institute for Civil Justice (1986)
The Declining Faith in the Adversary System, 13 Litigation 3 (1986)
The Mythic Meaning of Article III Courts, 56 University of Colorado Law Review 581 (1985)
Precluding Appeals, 70 Cornell Law Review 603 (1985)
Managerial Judges: The Potential Costs, in Symposium, Law and Public Affairs, 45 Public Administration Review 686 (Special Issue, November 1985)
Tiers, 57 Southern California Law Review 837 (1984)
Commentaries on Prisoner Litigation, 9 Justice System Journal 347 (Winter 1984)
The Assumptions Remain, 23 Judges’ Journal 37 (Fall 1984)

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Managerial Judges and Court Delay: The Unproven Assumptions, 23 Judges’ Journal 8 (Winter 1984)

Book Review of The Brandeis/Frankfurter Connection, 71 California Law Review 776 (1983)

Managerial Judges, 96 Harvard Law Review 374 (1982); also published by RAND, Institute for Civil Justice (1982)

Patients’ Rights: Disclosure, Consent, and Capacity (with Nikki Heidepriem), 1973/1974 Annual Survey of American Law 87

Selected Commentary in Newspapers, Magazines, and Journals Protecting Prisoners in Pandemics Is a Constitutional Must, Bloomberg.com, March 30, 2020, https://news.bloomberglaw.com/health-law-and-business/insightprotecting-prisoners-in-pandemics-is-a-constitutional-must

Degrading strip search of 200 women prisoners cries out for courts to act, CNN.com, October 3, 2019, https://www.cnn.com/2019/10/03/opinions/women-prisonershave-rights-resnik/index.html

This Question Changed the Face of the Supreme Court, CNN.com, September 25, 2018; http://www.cnn.com/2018/09/25/opinions/anita-hill-patsy-mink-changed-howwe-see-kavanaugh-judith-resnik/index.html

The Supreme Court’s Arbitration Ruling Undercuts the Court System, HuffPost, May 25, 2018; https://www.huffingtonpost.com/entry/opinion-resnik-forcedarbitration_us_5b08395ae4b0802d69caeb47?1s

To Help #MeToo Stick, End Mandatory Arbitration, HuffPost, January 23, 2018; https://www.huffingtonpost.com/entry/opinion-resnik-mandatoryarbitration_us_5a65fc39e4b0e5630071c15d?g9r

Arbitration Cuts the Public Out and Limits Redress, National Law Journal, August 22, 2016; http://www.nationallawjournal.com/id=1202765654457/ Arbitration-Cuts-the-Public-Out-and-Limits-Redress?slreturn=20160914112502

With One Decision, Obama and Lynch Could Reshape the Criminal Justice System (with Robert Ferguson and Margo Schlanger), The Washington Post online, August 3, 2015; https://www.washingtonpost.com/posteverything/wp/2015/08/03/with-onedecision-obama-could-totally-reform-the-criminal-justice-system/

No Fast Track for Unfair Trade Deals (with Amy Kapczynski), HuffPost Politics, June 11, 2015; http://www.huffingtonpost.com/amy-kapczynski/tpp-isds-no-fast-trackfor-unfair-trade-deals_b_7562084.html?1434041001

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Can Less Confidentiality Mean More Fairness in Campus Sexual Assault Cases? (with Alexandra Brodsky and Claire Simonich), The Nation, February 23, 2015; http://www.thenation.com/article/198713/can-less-confidentiality-mean-morefairness-campus-sexual-assault-investigations
Renting Judges for Secret Rulings, The New York Times, February 28, 2014; http://www.nytimes.com/2014/03/01/opinion/renting-judges-for-secretrulings.html?ref=todayspaper
The Return of the Terrible Plan to Ship Female Inmates from the Northeast to Alabama, Slate, October 4, 2013; http://www.slate.com/blogs/xx_factor/2013/10/04/female_inmates_in_federal_pri son_must_give_up_their_beds_to_men_and_move.html
Keep Female Prisoners Close to Family (with Nancy Gertner), The Boston Globe, September 3, 2013; http://www.bostonglobe.com/opinion/2013/09/03/keepfemale-prisoners-close-family/eQf4dCawmOGmQ41Ap53GxL/story.html
Harder Time: Why are the federal prison beds for women in the Northeast going to men—while the women get shipped to Alabama?, Slate, July 25, 2013; http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/women_i n_federal_prison_are_being_shipped_from_danbury_to_aliceville.html
How “Robust” is Appellate Review of Courts-Martial? (with Eugene R. Fidell, Elizabeth L. Hillman, Dwight H. Sullivan, Stephen A. Saltzburg and Kate Stith) (2013), Balkinization; http://balkin.blogspot.com/2013/05/how-robust-is-appellatereview-of.html
Abolish the Death Penalty and Supermax, Too: Updating the Ban Against Cruel and Unusual Punishment (with Jonathan Curtis-Resnik), Slate, June 18, 2012; http://www.slate.com/authors.judith_resnik_and_jonathan_curtisresnik.html
War, Terror, and the Federal Courts, Ten Years After 9/11 – Conference (a discussion with Judge Brett Kavanaugh, Martin Lederman, Sarah Cleveland, Curt Bradley, and Stephen Vladeck), from the 2012 Annual Meeting of the Association of American Law Schools, 61 American University Law Review 1253 (2012)
A Collective Collage: Women, the Structure of American Legal Education, and Histories Yet to be Written (with Dennis E. Curtis), 80 University of Missouri Kansas City Law Review 737 (2012)
The Changing Face of Justice: The Visual Vocabulary of Courts is a Transnational Symbol of Government (with Dennis E. Curtis), The Guardian, March 24, 2011; http://www.guardian.co.uk/law/2011/mar/24/changing-face-justice-judith-resnik

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Designing Justice (with Dennis E. Curtis), Los Angeles Daily Journal, January 21, 2011. What Does Justice Look Like? (with Dennis E. Curtis), Slate, January 21, 2011; http://www.slate.com/id/2281277/
From Fool’s Blindfold to the Veil of Ignorance (with Dennis E. Curtis), Yale Law Report (Winter 2011)
Object Lesson: On and Off Her Pedestal (with Dennis E. Curtis), Yale Alumni Magazine (November/December 2010)
Citizenship for the 21st Century: A Conversation with Seyla Benhabib and Judith Resnik, 38 Women Studies Quarterly 271 (Spring/Summer 2010)
Drafting, Lobbying, and Litigating VAWA: National, Local, and Transnational Interventions on Behalf of Women’s Equality, 11 Georgetown Journal of Gender and the Law 557 (2010)
Open the Door and Turn on the Lights, Slate, May 21, 2010; http://www.slate.com/id/2253500/
Judicial Independence, Panel Discussion, Sandra Day O’Connor, Linda Greenhouse, Judith Resnik, Bert Brandenburg, and Viet D. Dinh, Bulletin of the American Academy 29 – 56 (Winter 2009)
There’s a New Lawyer in Town (with Emily Bazelon), Slate, February 9, 2009; http://www.slate.com/id/2210637/
Revival of Justice, Slate, January 6, 2009; http://www.slate.com/id/2208017/
Translocal Transnationalism: Foreign and Domestic Affairs, 102 American Society of International Law Proceedings 214 (2008)
Sitting on Great Judges (with Emily Bazelon), Slate, December 19, 2008; http://www.slate.com/id/2207071/
The Return of Regency (with Allison Tait), The XX Factor, September 11, 2008, guest post; http://www.slate.com/blogs/blogs/xxfactor/archive/2008/09/11/the-returnof-regency.aspx
Courts and Democracy: The Production and Reproduction of Constitutional Conflict in The Courts and Social Policy in the United States (Oxford: Foundation for Law, Justice and Society, 2008); http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1148202

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Moving American Mores: From Women’s Education to Torture, 36 Women Studies Quarterly 339 (Spring/Summer 2008)

When the Justice Department Played Defense, Slate, October 27, 2006; http://www.slate.com/id/2152211/

Borders, Law, and Doors – Opening, Bryn Maw College Convocation, May 2006

Opening the Door: Court Stripping: Unconscionable and Unconstitutional? Slate, February 1, 2006; http://www.slate.com/articles/news_and_politics/jurisprudence/2006/02/opening_ the_door.html

So Long: Changing the Judicial Pension System Could Keep Judges from Staying on the Bench for Too Many Years, July/August Legal Affairs 20 (2005)

One Robe, Two Hats (with Theodore Ruger), New York Times, Op-Ed, Section 4 at 13, July 17, 2005

Looking Back, Looking Forward: One Hundred Years, Concluding Remarks in Women Faculty Forum, Gender Matters: Women and Yale in its Third Century (2004)

The Courts, the Legislature, and the Executive: Separate and Equal? Issues at the Federal Level, 87 Judicature 220 (2004)

Judicial Selection, Independent Jurists, and Life-Tenure (2004); http://www.jurist.org/forum/symposium-jc/resnik.php

At Home and Work, Still a Man’s World, Commentary (with Emily Bazelon), Los Angeles Times, January 2, 2004

Engendering Equality: A View from the United States, 35 The European Lawyer 21, (February 2004)

Supermajority Rule, New York Times, Op-Ed, Section A at 31, June 11, 2003

Testimony Statement submitted for the record, Women in Prison: Seeking Justice Behind Bars, before the U.S. Commission on Civil Rights, March 22, 2019, U.S. Commission on Civil Rights, Women in Prison: Seeking Justice Behind Bars (February 2020), available at https://www.usccr.gov/pubs/2020/02-26-Women-inPrison.pdf

Comments submitted on Proposed Changes to Code of Conduct for U.S. Judges and Judicial Conduct and Disability Rules (with Abbe R. Gluck), submitted to the

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Judicial Conference committees on Codes of Conduct and Judicial Conduct and Disability, November 13, 2018

Comments submitted for the Telephonic Hearing on Proposed Amendments to the Federal Rules of Civil Procedure before the Advisory Committee on Civil Rule of the Judicial Conference of the United States, February 16, 2017

Statement submitted for the record, Women in Detention: The Need for National Reform, Charles Colson Task Force on Federal Corrections Public Hearing, Washington, D.C., March 11, 2015

Statement submitted for the record, Women in Detention: The Need for a National Agenda, Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights, December 9, 2014

The Policies Governing Isolation in U.S. Prisons, Statement submitted for the Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, Reassessing Solitary Confinement II: The Human Rights, Fiscal and Public Safety Consequences, February 25, 2014; http://www.law.yale.edu/documents/pdf/Liman/Liman_Senate_Statement_Reasse ssing_Solitary_Confinement--_Resnik_Metcalf_--_final_Feb_28_2014.pdf

Statement submitted for the record, Oversight of the Bureau of Prisons and CostEffective Strategies for Reducing Recidivism, Hearing before the Senate Judiciary Committee, U.S. Senate, November 13, 2013; http://www.law.yale.edu/documents/pdf/Liman/Senate_Judiciary_Committee_BO P_Oversight_Hearing_Liman_Statement_for_the_Record_

Statement submitted for the record, Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences, Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights, U.S. Senate, June 19, 2012

Courtroom Use: Access to Justice, Effective Judicial Administration and Courtroom Security, Hearing before the Subcommittee on Courts and Competition Policy of the United States Committee on the Judiciary, U.S. House of Representatives, September 24, 2010

Statement submitted for the record, Recommendations on Courthouse Construction, Courtroom Sharing and Enforcing Congressionally Authorized Limits on Size and Cost, Hearing before the Subcommittee on Economic Development, Public Buildings and Emergency Management Committee on Transportation and Infrastructure, U.S. House of Representatives, May 21, 2010

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Statement submitted for the record, Sunshine in Litigation Act: Does Court Secrecy Undermine Public Health and Safety, Hearing before the Subcommittee on Antitrust, Competition Policy and Consumer Rights of the Committee on the Judiciary, 110th Cong. 181, December 11, 2007

Hearings on the Judicial Nomination of John G. Roberts, Jr., to be Chief Justice of the United States, held by the Committee on the Judiciary of the United States Senate, Washington, D.C., September 15, 2005

Hearings on the Judicial Selection before the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, held by the House of Commons, Ottawa, Canada, April 20, 2004

Hearings on the Proposed Amendments to Federal Rule of Civil Procedure 23, held by the Committee on Rules of Practice and Procedure, Judicial Conference of the United States, January 2002

Hearings on the Senate's Role in the Nomination and Confirmation Process: Whose Burden?, held by the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts, 107th Cong. , September 4, 2001, also published in 50 Drake Law Review 539 (2001-02)

Hearings on the Proposed Amendment to Federal Rule of Civil Procedure 23, held by the Committee on the Rules of Practice and Procedure, Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, November 1996

Hearings on the Proposed Long Range Plan of the Judicial Conference of the United States, held by the Committee on Long Range Planning, December 16, 1994

Hearings on the Proposed Changes in the Federal Rules of Civil Procedure, held by the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference, November 1991

Hearings on the Tentative Report of the Federal Courts Study Committee, held by members of the Committee, San Diego, California, January 29, 1990

Hearings on the Proposed Amendments to Rule 63 of the Federal Rules of Civil Procedure, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, January 1990

Hearings on the Confirmation of Robert H. Bork to be an Associate Justice of the United States Supreme Court, held by the Committee on the Judiciary, United States Senate, September 25, 1987

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Hearings on Proposed Amendments to Rule 52(a) of the Federal Rules of Civil Procedure, held by the Subcommittee on Criminal Justice of the Judiciary Committee of the U.S. House of Representatives, June 26, 1985
Hearings on Proposed Amendments to Rule 68 of the Federal Rules of Civil Procedure, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, 1985
Hearings on Proposals to Amend the Rules Governing Section 2254 Cases in the United States District Courts, and Rules Governing Section 2255 Proceedings in the United States District Courts, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, 1984
Female Offender: 1979-80, Part 1: Hearings before the Subcommittee on Courts, Civil Liberties, and Administration of Justice of the House Committee. on Judiciary, 96th Cong. 59, October 11, 1979
Drug Abuse Treatment: Part 2: Hearings before the Select Committee on Narcotics Abuse and Control, House of Representatives, 96th Cong., July 25, 1978

Honors and Awards Andrew Carnegie Fellowship, 2018-2020
Honorary Doctorate of Laws, University College London, 2018
Visiting Scholar, Max Planck Institute for Procedural Law, Luxembourg, February 2018
Establishment of the Resnik-Curtis Fellowship in Public Interest Law on the 20th anniversary of the Liman Program at Yale, 2017
Visiting Scholar, Phi Beta Kappa, 2014-2016
Recipient, Arabella Babb Mansfield Award, National Association of Women Lawyers, July 2013
Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (with Dennis E. Curtis) Selected as one of the “Best legal reads of 2011” by The Guardian Recipient, SCRIBES Award from the American Society of Legal Writers, 2012 Recipient, PROSE Award, Excellence in Social Sciences, 2012 PROSE Award, Excellence in Law & Legal Studies, 2012

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Selected as an Outstanding Academic Title of the Year by Choice Magazine, January 2012
Recipient, The Order of the Coif Biennial Book Award, January 2014

New York University Alumna of the Month Award, June 2012, http://www.law.nyu.edu/alumni/almo/pastalmos/2011-12almos/judithresnikjune

Elizabeth Hurlock Beckman Award, Awarded to Outstanding Faculty in Higher Education in the Fields of Psychology or Law, Columbia University, March 2011

Migrations and Mobilities: Citizenship, Borders, and Gender, Selected as an Outstanding Academic Title of the Year by Choice Magazine, January 2011

Outstanding Scholar of the Year Award 2008, from the Fellows of the American Bar Foundation

Oral History, 2007, Women Trailblazers in the Law Project, American Bar Association Commission on Women in the Profession, deposited in the Library of Congress, 2009

Convocation Speaker, Bryn Mawr College Commencement, May 2006

Member, American Philosophical Society, elected Spring 2002

Fellow, American Academy of Arts and Sciences, elected Spring 2001

Recipient, Margaret Brent Women Lawyers of Achievement Award, American Bar Association Commission on Women in the Profession, August 1998

Recipient, NYU School of Law, Legal Teaching Award, Spring 1995

Recipient, USC Associates Award for Creativity in Research, Spring 1994

Recipient, Florence K. Murray Award, National Association of Women Judges, Fall 1993

Recipient, “Big Splash Award” from the Program of Women and Men in Society (SWMS), University of Southern California, 1992

Member, Phi Kappa Phi, elected by the USC Chapter, 1991

University Scholar, University of Southern California, 1982-1983

Recipient, Student Bar Association Outstanding Faculty Award, University of Southern California Law Center, 1982-1983

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Arthur Garfield Hays Fellow, 1974-1975, New York University

Education Bryn Mawr College, B.A., cum laude, 1972 New York University School of Law, J.D., cum laude, 1975

Bar Memberships Connecticut United States District Courts: District of Connecticut, Southern District of New York, Eastern District of New York United States Court of Appeals for the First, Second, Third, Fourth, Ninth and Eleventh Circuits United States Supreme Court

Selected Litigation United States Supreme Court Of counsel on Brief of Amici Curiae, Law Professors in Support of Petitioners (No. 18622), on Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit, Whole Woman’s Health, et. al. v. Texas Catholic Conference of Bishops (2018) (on the question of standing)

Of counsel on Brief of Amici Curiae, Former Judges, Former Prosecutors, Former Government Officials, Law Professors, and Social Scientists in Support of Respondents (No. 17-312), United States of America v. Sanchez-Gomez 138 S.Ct. 1532 (2018) (on the use of shackles for defendants in federal court)

Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Respondents (Nos. 161436 and 16-1540), Donald J. Trump, et al. v. International Refugee Assistance Project, et al, Donald J. Trump, et al. v. State of Hawaii, et al. (2017), 138 S.Ct. 2392 (2018) (on travel bans)

Of counsel on Brief of Amici Curiae, Constitutional Law, Federal Courts, Citizenship, and Remedies Scholars in Support of Respondent Luis Ramon Morales-Santana (No. 15-1191), Lynch v. Morales-Santana, 136 S.Ct. 2545 (2016) (on citizenship and gender)

Oral Argument and brief presented on behalf of the Respondent Norman Carpenter in Mohawk Industries, Inc. v. Carpenter (No. 08-678, 2009 WL 3169419) (argued October 5), 558 U.S. 100 (2009) (on appealability)

Of counsel on Brief of Law Professors as Amici Curiae, in Support of Respondent Jacob Denedo (No. 08-267, 2009 WL 418793), United States v. Denedo, 556 U.S. 904 (2009) (on jurisdiction)

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Of counsel on Brief of Amici Curiae Professors of Constitutional Law and of Federal Jurisdiction, in Support of Petitioner Keith Haywood (No. 07-10374), Haywood v. Drown, 556 U.S. 729 (2009) (on state law and Section 1983)

Of counsel on Brief of Amici Curiae Professors of Constitutional Law and of the Federal Courts, in Support of the Habeas Petitioners Omar and Munaf (Nos. 07394, 06-1666), Munaf v. Geren, 553 U.S. 674 (2008) (on the scope of habeas corpus)

Of counsel on Brief of Professors of Constitutional Law and of the Federal Jurisdiction as Amici Curiae, in Support of Petitioners Boumediene et al. (Nos. 06-394, 06-1196), Boumediene v. Bush, 553 U.S. 723 (2008) (on the scope of habeas corpus)

Brief of Amici Curiae Norman Dorsen, Frank Michelman, Burt Neuborne, Judith Resnik, and David Shapiro, in Support of Petitioner Salim Ahmed Hamdan (No. 05-184), Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (on due process)

Brief of Amici Curiae of Law Professors in Support of Petitioner Paula Jones (No. 951853, 1996 WL48092), Clinton v. Jones, 520 U.S. 681 (1997) (on immunity)

Oral Argument presented on behalf of the Rotary Club of Duarte: Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) (on California public accommodations law and associational rights under the First Amendment)

United States Courts of Appeals Brief of Amici Curiae, Scholars of the Law of Prisons, the Constitution, and the Federal Courts in Support of the Appellants (No. 16-4234), Delores Henry, et al., v. Melody Hulett, et al. (7th Cir, rehearing en banc pending, 2020) (on constitutional rights in prison)

Brief of Amici Curiae of Constitutional Law and Procedure Scholars Judith Resnik and Brian Soucek in Support of Petitioner (No. 16-73801), submitted for the hearing en banc, C.J.L.G. v. Jefferson B. Sessions III (9th Cir., , 880 F.3d 1122 (2019) (on due process, right to counsel, and immigrant children)

Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Plaintiffs-Appellees, (No. 17-17168), Ninth Circuit, State of Hawaii, et al., v. Donald Trump (2017) (on travel bans)

Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Plaintiffs-Appellees, (No.

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17-2231 (L), 17-2232, 17-2233, 17-2240 (Consolidated)), Fourth Circuit, International Refugee Assistance Project, et al., Iranian Alliances Across Borders, et al., Eblal Zakzok, et al., v. Donald Trump (2017) (on travel bans)

Of counsel on Brief of Amici Curiae, Constitutional Law Professors in Support of
Appellees and Affirmance (No. 17-1351), International Refugee Assistance Project et al. v. Donald J. Trump, et. al. (4th Cir. 2017) (on travel bans)

Appellate Counsel In re San Juan Dupont Plaza Hotel Fire Litigation, 111 F.3d 220 (1st Cir. 1997)
(on awards of fees and costs in a mass tort multi-district litigation)

In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 56 F.3d 295 (1st Cir.1995)

In re Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 982 F.2d 603 (1st Cir. 1992)

United States District Court Declaration Regarding Provisional Remedies for Detained Individuals, Money v. Jeffries
(N.D. Ill., Eastern Division, No. 20 cv 2-14, filed April 8, 2020

Of Counsel on Motion for Leave to File Declaration of Correctional Expert Rick Raemisch as Amicus Curiae, Savino et al. v. Hodgson et al. (D. Mass., No. 1:20cv-10617-WGY, granted March 31, 2020) (to provide the court and parties with expert information)

Of Counsel on Unopposed Motion for Leave to File Amicus Curiae Statement of Correctional Expert Rick Raemisch, Coleman v. Newson (E.D. Cal, No. 2:90-CV00520-KJM-DB 2020), Plata v. Newsom (No. C01-1351 JST, N.D. Cal., granted April 2, 2020) (to provide the court and parties with expert information)

Court-appointed trustee in re: MDL-926 Global Breast Implant Settlement, 173 F.Supp.2d 1381 (Judicial Panel on Multidistrict Litigation, N.D. Alabama, N.D. Texas, 1994) (overseeing the court-created “common benefit fund”)

Expert appointed by the district court to assist the Special Master in McLendon v. Continental Group, Inc., 802 F.Supp. 1216 (D.N.J. 1992) (assisting the court in relationship to a settlement in an ERISA class action)

Exhibits, Co-Curator The Remarkable Run of a Political Icon: Justice as a Sign of the Law. Rare Book Exhibition Gallery, Lillian Goldman Law Library, Yale Law School, September– December 2011 (with Dennis E. Curtis, Allison Tait & Michael Widener); http://library.law.yale.edu/justice-sign-law-exhibit

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Courts: Representing and Contesting Ideologies of the Public Sphere. Yale Art Gallery, Study Galleries, January – May 2011 (with Dennis E. Curtis)
Selected Media Interview, Women, Judging, Equality, and Constitutional Law, RAI Storia (Italian television) – La Corte Costituzionale e le Donne, Pt. 6, January 2020, https://vimeo.com/377835690
Interview, WNPR – Connecticut Public Radio’s Where We Live, presented by John Dankosky, August 5, 2013; http://wnpr.org/post/connecticuts-criminal-justicesystem
Interview, BBC Radio 4’s Law in Action, presented by Joshua Rozenberg, March 12, 2013; http://www.bbc.co.uk/programmes/b01r5ln5
Cameo in Fair Game, directed by Doug Liman, Fall 2010, and panel moderator, discussion of the film with Valerie Plame, Joseph Wilson, Emily Bazelon and Doug Liman, Paris Theatre, New York City, October 5, 2010

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EXHIBIT 10
164

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1

DECLARATION OF JIMMY THREATT

2

I, Jimmy Threatt, declare as follows:

3

1. I am an active member of the Bar of the State of California and an

4 associate with Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow,

5 a professional corporation, attorneys of record for Petitioners in this action. Except

6 for those matters stated on information and belief, I make this declaration based

7 upon personal knowledge and, if called upon to do so, I could and would so testify.

8

2. I have attempted to arrange legal calls with eight prisoners incarcerated

9 at FCI Lompoc and USP Lompoc who had been identified to my firm by their

10 family members and friends as seeking our representation in this action. I have not

11 spoken with any of them. Although several calls were initially scheduled, they were

12 each abruptly cancelled by the Bureau of Prisons (“BOP”). As of now, there are no

13 legal calls scheduled with any of the eight prisoners. Attached as Exhibit A is

14 a compilation of true and correct copies of my email correspondence with BOP

15 employees.

16

3. On May 12, 2020, I called the main desks of FCI Lompoc and USP

17 Lompoc to schedule legal calls with prisoners. No one answered and I was not

18 granted opportunities to leave voice messages.

19

4. On May 12, 2020, I emailed the publicly listed address for FCI

20 Lompoc and USP Lompoc to schedule legal calls with the following four prisoners:

21 (1) Lonnie Ben, No. 69141-051; (2) Yonnedil Carror Torres, No. 41928-69;

22 (3) Andre Brown, No. 54460-097; and (4) Kanagasabai Kanakeswaran, No.

23 75139-112. That same day I received responses asking about the urgency of each

24 call. I immediately responded that each call was urgent, I would abide by any time

25 limits, and I could make myself available at any time for the calls in question.

26

5. The next day, May 13, I received email responses indicating that due to

27 “lack of information regarding the urgency” of my request to speak with each

28 prisoner, the matters were being referred to the BOP Legal Department.

3649734.2

DECLARA1T6I5ON OF JIMMY THREATT

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 166 of 189 Page ID #:391

1 I immediately responded to indicate that, while I would not divulge privileged

2 information, the calls concerned release options in light of the COVID-19 crisis.

3 That same day, I also submitted requests for legal calls with prisoners (1) Vincent

4 Reed, No. 27173-016, and (2) Vazgen Terpogosyan, No. 77271-112.

5

6. Later on May 13, I received a call from Jennifer Merkle, an attorney

6 with the BOP Legal Department, informing me that a call had been approved with

7 Lonnie Ben.

8

7. At 12:18 A.M. on May 14, I emailed the address for Lompoc to request

9 a legal call with Felix Samuel Garcia, No 46693-298. I have not received

10 a response.

11

8. At 12:21 A.M. on May 14, I emailed the address for Lompoc to request

12 a legal call with Shawn Fears, No 34183-060. I have not received a response.

13

9. Later on May 14, I received email responses indicating that requests for

14 calls with the following prisoners had been approved: (1) Lonnie Ben, (2) Yonnedil

15 Carror Torres, (3) Andre Brown, (4) Kanagasabai Kanakeswaran, (5) Vincent Reed,

16 and (6) Vazgen Terpogosyan. I have not heard anything regarding prisoners Brown

17 or Reed since.

18

10. Shortly thereafter, I received an additional email scheduling a legal call

19 with Yonnedil Carror Torres for 9:00 A.M. on May 19. As to my other outstanding

20 requests for legal calls, the officer could not “tell me when they [the prisoners] will

21 be afforded the legal call.” Later that afternoon, the officer cancelled the call with

22 Torres that had been scheduled just hours earlier: “Per our legal department, I am

23 going to cancel the scheduled legal call [with] the above client [Torres].”

24

11. Also on May 14, an officer called to schedule my call with prisoner

25 Lonnie Ben for 1:00 P.M. later that same day. When I called FCI Lompoc at

26 1:00 P.M., I was told that the call had been cancelled and that it would be

27 rescheduled but was not given any other details.

28

12. I received another call on May 14 scheduling calls for the following

3649734.2

2 DECLARA1T6I6ON OF JIMMY THREATT

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 167 of 189 Page ID #:392

1 morning, May 15, with prisoners (1) Kanagasabai Kanakeswaran and (2) Vazgen

2 Terpogosyan. But shortly later, the same officer called to cancel both because

3 “something came up.”

4

13. At 1:04 P.M. on May 14, I received an email from Jennifer Merkle, an

5 attorney with BOP, informing me that she had been referred thirteen of my requests

6 to speak with prisoners, which would include all of my requests to speak with

7 prisoners at FCI Lompoc, USP Lompoc, and FCI Terminal Island. She stated she

8 would need to assess every request individually and would be in touch as to each

9 separately.

10

14. As I was finalizing this declaration on May 15, I received a second

11 email from Ms. Merkle, asking me to call her so that she and I could “identify [my]

12 specific needs.”

13

I declare under penalty of perjury under the laws of the United States of

14 America that the foregoing is true and correct, and that I executed this declaration

15 on May 15, 2020, at Los Angeles, California.

16

17 Jimmy Threatt
18

19

20

21

22

23

24

25

26

27

28

3649734.2

3 DECLARA1T6I7ON OF JIMMY THREATT

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 168 of 189 Page ID #:393
EXHIBIT A
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Karen M. Minutelli

From: Sent: To: Cc: Subject:

Jimmy Threatt Tuesday, May 12, 2020 12:16 PM LOX/ExecAssistant@bop.gov Christopher J. Lee; Naeun Rim Legal Call with Inmate at FCI Lompoc

Importance:

High

My firm is counsel for Lonnie Ben (Inmate No. 69141-051). We are trying to schedule a call to discuss an urgent legal matter with him. We called the facility this morning, but no one is answering the phone.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1
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Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 170 of 189 Page ID #:395

Karen M. Minutelli

From: Sent: To: Cc: Subject:

Jimmy Threatt Thursday, May 14, 2020 12:19 AM LOX/ExecAssistant@bop.gov Christopher J. Lee; Naeun Rim Legal Call with Inmate at USP Lompoc

I am writing to schedule a legal call with Felix Samuel Garcia (Inmate No. 46693-298). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1
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Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 171 of 189 Page ID #:396

Karen M. Minutelli

From: Sent: To: Cc: Subject:

Jimmy Threatt Thursday, May 14, 2020 12:21 AM 'LOX/ExecAssistant@bop.gov' Christopher J. Lee; Naeun Rim Legal Call with Inmate at USP Lompoc

I am writing to schedule a legal call with Shawn Fears (Inmate No. 34183-060). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1
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Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 172 of 189 Page ID #:397

Karen M. Minutelli

From: Sent: To: Subject:

LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Thursday, May 14, 2020 7:58 AM Jimmy Threatt RE: Request Legal Call with BEN #69141-051 (LOF)

After speaking with our BOP Attorney, a 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales

>>> On 5/13/2020 at 1:30 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Wednesday, May 13, 2020 12:57 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Subject: RE: Request Legal Call with BEN #69141‐051 (LOF)
Due to lack of information regarding the urgency of your request, your request is being sent to the BOP Legal Office for further review and approval. Please be advised this may delay your request for a Legal Call.
>>> On 5/12/2020 at 2:15 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
Thank you, Ms. Morales. To respond to your questions:
1
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1) The matter is urgent and we need to speak with Lonnie Ben as soon as possible. It cannot wait until the facility comes off the enhanced mitigation measures.
2) We do have wide windows of availability; we can make any time work. 3) We understand and will respect the 15 minute time limit.
As a reminder, I can be reached at 650-384-5319, and my colleagues can also be reached on their cell phones (Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707).
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Tuesday, May 12, 2020 1:42 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Cc: Christopher J. Lee <clee@birdmarella.com>; Naeun Rim <nrim@birdmarella.com> Subject: Re: Request Legal Call with BEN #69141‐051 (LOF)
Good Morning,
I have been asked to evaluate your request for a legal call with the above-referenced inmate/your client.
Inmate legal calls usually go through the Unit Team, but our COVID-19 situation has prompted enhanced mitigation measures which has staff focusing on inmate management and enhanced sanitation. In short, FCC Lompoc is not under normal operation, and with matters like these, we want to facilitate legal access while balancing public health safety issues.
As FCC Lompoc is currently in the midst of enhanced mitigation measures to address our COVID-19 situation, such as restricting inmate movement, I need to weigh the necessity of the request/call against the goals of our current measures. Also, inmates at FCC Lompoc currently have access to TRULINCS (Email) and phone calls. The inmate can place you on his phone list and email account. Additionally, they receive legal mail daily.
2
173

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 174 of 189 Page ID #:399
We provide an occasional inmate attorney call when the inmate demonstrates that communication with attorneys by correspondence, visiting, or normal telephone use is not adequate, and when the inmate or inmate's attorney can demonstrate an imminent court deadline. Thus, we'd like to ask you the following questions:
1. Urgency - can this call wait until we can come off of our enhanced mitigation measures? Is there an imminent court deadline? Are communication by other means not adequate? While I am likely to defer to a fellow officer of the court's representation of urgency, I need to ask as FCC Lompoc staff are currently focused on active inmate management and enhanced sanitation, and minimizing movement and maintaining maximum separation is critical during this time;
2. Assuming urgency, do you have wide windows of date and time when you are willing to receive a call? For example, Wed - Friday from 812 noon? As arranging a call during this time will require moving an inmate from a quarantined or isolation area/cell to a staff office with a phone, there is much coordination that needs to happen to ensure the safety of all concerned. Thus, staff need maximum flexibility on when they can actually make the call;
3. Can the call be of limited duration, like 15 minutes? As there are other urgent calls that need to be accommodated, keeping the calls short is important to facilitating those are deemed necessary. Keep in mind there is extensive disinfecting that needs to happen of the office and phone after each is made.
Thank you for your patience and understanding during this challenging time.
Ms. Morales
>>> On 5/12/2020 at 12:16 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
My firm is counsel for Lonnie Ben (Inmate No. 69141-051). We are trying to schedule a call to discuss an urgent legal matter with him. We called the facility this morning, but no one is answering the phone.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com
3
174

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 175 of 189 Page ID #:400
Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
4
175

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 176 of 189 Page ID #:401

Karen M. Minutelli

From: Sent: To: Subject:

LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Thursday, May 14, 2020 7:59 AM Jimmy Threatt RE: Request Legal Call with BROWN #54460-097

After speaking with our BOP Attorney, a 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales

>>> On 5/13/2020 at 1:31 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Wednesday, May 13, 2020 12:56 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Subject: RE: Request Legal Call with BROWN #54460‐097
Due to lack of information regarding the urgency of your request, your request is being sent to the BOP Legal Office for further review and approval. Please be advised this may delay your request for a Legal Call.
>>> On 5/12/2020 at 2:14 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
Thank you, Ms. Morales. To respond to your questions:
1
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Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 177 of 189 Page ID #:402
1) The matter is urgent and we need to speak with Andre Brown as soon as possible. It cannot wait until the facility comes off the enhanced mitigation measures.
2) We do have wide windows of availability; we can make any time work. 3) We understand and will respect the 15 minute time limit.
As a reminder, I can be reached at 650-384-5319, and my colleagues can also be reached on their cell phones (Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707).
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Tuesday, May 12, 2020 1:41 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Cc: Christopher J. Lee <clee@birdmarella.com>; Naeun Rim <nrim@birdmarella.com> Subject: Re: Request Legal Call with BROWN #54460‐097
Good Morning,
I have been asked to evaluate your request for a legal call with the above-referenced inmate/your client.
Inmate legal calls usually go through the Unit Team, but our COVID-19 situation has prompted enhanced mitigation measures which has staff focusing on inmate management and enhanced sanitation. In short, FCC Lompoc is not under normal operation, and with matters like these, we want to facilitate legal access while balancing public health safety issues.
As FCC Lompoc is currently in the midst of enhanced mitigation measures to address our COVID-19 situation, such as restricting inmate movement, I need to weigh the necessity of the request/call against the goals of our current measures. Also, inmates at FCC Lompoc currently have access to TRULINCS (Email) and phone calls. The inmate can place you on his phone list and email account. Additionally, they receive legal mail daily.
2
177

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 178 of 189 Page ID #:403
We provide an occasional inmate attorney call when the inmate demonstrates that communication with attorneys by correspondence, visiting, or normal telephone use is not adequate, and when the inmate or inmate's attorney can demonstrate an imminent court deadline. Thus, we'd like to ask you the following questions:
1. Urgency - can this call wait until we can come off of our enhanced mitigation measures? Is there an imminent court deadline? Are communication by other means not adequate? While I am likely to defer to a fellow officer of the court's representation of urgency, I need to ask as FCC Lompoc staff are currently focused on active inmate management and enhanced sanitation, and minimizing movement and maintaining maximum separation is critical during this time;
2. Assuming urgency, do you have wide windows of date and time when you are willing to receive a call? For example, Wed - Friday from 812 noon? As arranging a call during this time will require moving an inmate from a quarantined or isolation area/cell to a staff office with a phone, there is much coordination that needs to happen to ensure the safety of all concerned. Thus, staff need maximum flexibility on when they can actually make the call;
3. Can the call be of limited duration, like 15 minutes? As there are other urgent calls that need to be accommodated, keeping the calls short is important to facilitating those are deemed necessary. Keep in mind there is extensive disinfecting that needs to happen of the office and phone after each is made.
Thank you for your patience and understanding during this challenging time.
Ms. Morales
>>> On 5/12/2020 at 12:11 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
My firm is counsel for Andre Brown (Inmate No. 54460-097). We are trying to schedule a call to discuss an urgent legal matter with him. We called the facility this morning, but no one is answering the phone.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110
3
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Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 179 of 189 Page ID #:404
E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
4
179

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 180 of 189 Page ID #:405

Karen M. Minutelli

From: Sent: To: Subject:

LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Thursday, May 14, 2020 10:51 AM Jimmy Threatt Re: Request Legal Call with TERPOGOSYAN #77271-112 (LOM)

A 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales

>>> On 5/13/2020 at 4:03 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
I am writing to schedule a legal call with Vazgen Terpogosyan (Inmate No. 77271-112). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1
180

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 181 of 189 Page ID #:406

Karen M. Minutelli

From: Sent: To: Subject:

LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Thursday, May 14, 2020 10:53 AM Jimmy Threatt Re: Request Legal Call with REED #27173-016 (LOM)

A 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales

>>> On 5/13/2020 at 4:07 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
I am writing to schedule a legal call with Vincent Reed (Inmate No. 27173-016). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1
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Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 182 of 189 Page ID #:407

Karen M. Minutelli

From: Sent: To: Subject:

Jennifer Merkle <jmmerkle@bop.gov> Thursday, May 14, 2020 1:04 PM Jimmy Threatt Requests for Legal Calls with Clients / Prospective Clients at FCC Lompoc

Good afternoon,
I think you may recall we spoke on the phone about a legal call for inmate Ben the other day. I have now been assigned 13 of your requests to review. It has become apparent that some of the individuals that you seek to have a legal call with are represented by other counsel as to their release options; therefore, I will be assessing each of these requests individually.
In the meantime, please feel free to send any additional request to me directly for review.
I will be in touch as to each request separately.
Thank you, Jennifer
Jennifer M. Merkle Senior Attorney FCC Victorville PO Box 5400 Adelanto, CA 92301 Phone: 760-530-5440 Fax: 760-530-5103 jennifer.merkle@usdoj.gov jmmerkle@bop.gov
SENSITIVE/PRIVILEGED COMMUNICATION The information contained in this electronic message and any and all accompanying documents constitutes sensitive information. This information is the property of the U.S. Department of Justice. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received this message in error, please notify us immediately at the above number to make arrangements for its return to us.

1
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Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 183 of 189 Page ID #:408

Karen M. Minutelli

From: Sent: To: Subject:

Jorge A. Garcia <jagarcia@bop.gov> Thursday, May 14, 2020 2:36 PM Jimmy Threatt RE: Request Legal Call with CARROR-TORRES #41928-069 (LOM)

Per our legal department, I am going to cancel the scheduled legal call the above client.
>>> Jimmy Threatt <jthreatt@birdmarella.com> 5/14/2020 10:00 AM >>>
Mr. Garcia,
Thank you for your email. Tuesday, May 19, at 9 am works. Please note that I should be called at 650-3845319. Let me know if I need to do anything else prior to the call.
I have also submitted requests for calls with the inmates listed below, who are also housed at USP Lompoc. Those calls have not been scheduled yet, though the requests pertaining to Brown and Keswaran have also been approved.
1) Andre Brown, 54460-097 2) Kanagasabai Kana Keswaran, 75139-112 3) Vincent Reed, 27173-016 4) Vazgen Terpogosyan, 77271-112 5) Felix Samuel Garcia, 46693-298 6) Shawn Fears, 34182-060

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

From: Jorge A. Garcia <jagarcia@bop.gov> Sent: Thursday, May 14, 2020 8:43 AM To: Jimmy Threatt <jthreatt@birdmarella.com> Subject: RE: Request Legal Call with CARROR‐TORRES #41928‐069 (LOM)
Good morning Sir or Mam,
1
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Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 184 of 189 Page ID #:409
I've been tasked to set up a legal call with your client. Due to the high volume of requested legal calls, I'm currently scheduling calls for next week 05/18/20 to 05/22/20. The earliest slot I have available would be Tuesday 9 am. If that would work, please advise. If not, please provide 3 dates and times next week you would like the call to take place. Thank You.
After speaking with our BOP Attorney, a 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales
>>> On 5/13/2020 at 1:32 PM, Jimmy Threatt <> wrote:
This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Wednesday, May 13, 2020 12:56 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Subject: RE: Request Legal Call with CARROR‐TORRES #41928‐069 (LOM) Due to lack of information regarding the urgency of your request, your request is being sent to the BOP Legal Office for further review and approval. Please be advised this may delay your request for a Legal Call.
2
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Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 185 of 189 Page ID #:410
>>> On 5/12/2020 at 2:12 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
Thank you, Ms. Morales. To respond to your questions:
1) The matter is urgent and we need to speak with Yonnedil Carror Torres as soon as possible. It cannot wait until the facility comes off the enhanced mitigation measures.
2) We do have wide windows of availability; we can make any time work. 3) We understand and will respect the 15 minute time limit.
As a reminder, I can be reached at 650-384-5319, and my colleagues can also be reached on their cell phones (Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707).
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Tuesday, May 12, 2020 1:40 PM To: Christopher J. Lee <clee@birdmarella.com>; Jimmy Threatt <jthreatt@birdmarella.com>; Naeun Rim <nrim@birdmarella.com> Subject: Re: Request Legal Call with CARROR‐TORRES #41928‐069 (LOM)
Good Morning,
I have been asked to evaluate your request for a legal call with the above-referenced inmate/your client.
Inmate legal calls usually go through the Unit Team, but our COVID-19 situation has prompted enhanced mitigation measures which has staff focusing on inmate management and enhanced sanitation. In short, FCC Lompoc is not under normal operation, and with matters like these, we want to facilitate legal access while balancing public health safety issues.
As FCC Lompoc is currently in the midst of enhanced mitigation measures to address our COVID-19 situation, such as restricting inmate movement, I need to weigh the necessity of the request/call against the goals of our current measures. Also, inmates at FCC Lompoc currently have access to TRULINCS (Email) and phone
3
185

Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 186 of 189 Page ID #:411
calls. The inmate can place you on his phone list and email account. Additionally, they receive legal mail daily.
We provide an occasional inmate attorney call when the inmate demonstrates that communication with attorneys by correspondence, visiting, or normal telephone use is not adequate, and when the inmate or inmate's attorney can demonstrate an imminent court deadline. Thus, we'd like to ask you the following questions:
1. Urgency - can this call wait until we can come off of our enhanced mitigation measures? Is there an imminent court deadline? Are communication by other means not adequate? While I am likely to defer to a fellow officer of the court's representation of urgency, I need to ask as FCC Lompoc staff are currently focused on active inmate management and enhanced sanitation, and minimizing movement and maintaining maximum separation is critical during this time;
2. Assuming urgency, do you have wide windows of date and time when you are willing to receive a call? For example, Wed - Friday from 812 noon? As arranging a call during this time will require moving an inmate from a quarantined or isolation area/cell to a staff office with a phone, there is much coordination that needs to happen to ensure the safety of all concerned. Thus, staff need maximum flexibility on when they can actually make the call;
3. Can the call be of limited duration, like 15 minutes? As there are other urgent calls that need to be accommodated, keeping the calls short is important to facilitating those are deemed necessary. Keep in mind there is extensive disinfecting that needs to happen of the office and phone after each is made.
Thank you for your patience and understanding during this challenging time.
Ms. Morales
>>> On 5/12/2020 at 12:09 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
My firm is counsel for Yonnedil Carror Torres (Inmate No. 41928-69). We are trying to schedule a call to discuss an urgent legal matter with him. We called the facility this morning, but no one is answering the phone.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
4
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Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 187 of 189 Page ID #:412
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
5
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Case 2:20-cv-04450-CBM-PVC Document 16 Filed 06/01/20 Page 188 of 189 Page ID #:413

Karen M. Minutelli

From: Sent: To: Subject:

Jennifer Merkle <jmmerkle@bop.gov> Friday, May 15, 2020 1:51 PM Jimmy Threatt Re: Requests for Legal Calls with Clients / Prospective Clients at FCC Lompoc

Good afternoon,
I have had a chance to go through all of the emails and research the cases for each of the individuals you are seeking to speak with. Please call me at your convenience so we can over these and identify your specific needs.
Jennifer
Jennifer M. Merkle Senior Attorney FCC Victorville PO Box 5400 Adelanto, CA 92301 Phone: 760-530-5440 Fax: 760-530-5103 jennifer.merkle@usdoj.gov jmmerkle@bop.gov
SENSITIVE/PRIVILEGED COMMUNICATION The information contained in this electronic message and any and all accompanying documents constitutes sensitive information. This information is the property of the U.S. Department of Justice. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received this message in error, please notify us immediately at the above number to make arrangements for its return to us.
>>> Jennifer Merkle 5/14/2020 1:03 PM >>> Good afternoon,
I think you may recall we spoke on the phone about a legal call for inmate Ben the other day. I have now been assigned 13 of your requests to review. It has become apparent that some of the individuals that you seek to have a legal call with are represented by other counsel as to their release options; therefore, I will be assessing each of these requests individually.
In the meantime, please feel free to send any additional request to me directly for review.
I will be in touch as to each request separately.
Thank you, Jennifer
Jennifer M. Merkle Senior Attorney FCC Victorville PO Box 5400 Adelanto, CA 92301
1
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Case 2:20-cv-04450-CBM-PVC
Phone: 760-530-5440 Fax: 760-530-5103 jennifer.merkle@usdoj.gov jmmerkle@bop.gov

Document 16 Filed 06/01/20 #:414

Page 189 of 189

Page ID

SENSITIVE/PRIVILEGED COMMUNICATION The information contained in this electronic message and any and all accompanying documents constitutes sensitive information. This information is the property of the U.S. Department of Justice. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received this message in error, please notify us immediately at the above number to make arrangements for its return to us.

2
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 Case 2:20-cv-04450-CBM-PVC Document 18 Filed 06/01/20 Page 1 of 72 Page ID #:441

1 Terry W. Bird – Bar No. 49038 tbird@birdmarella.com
2 Dorothy Wolpert – Bar No. 73213 dwolpert@birdmarella.com
3 *Naeun Rim – Bar No. 263558 nrim@birdmarella.com
4 Shoshana E. Bannett – Bar No. 241977 sbannett@birdmarella.com
5 Christopher J. Lee – Bar No. 322140 clee@birdmarella.com
6 Jimmy Threatt – Bar No. 325317 jthreatt@birdmarella.com
7 BIRD, MARELLA, BOXER, WOLPERT, NESSIM, DROOKS,
8 LINCENBERG & RHOW, P.C. 1875 Century Park East, 23rd Floor
9 Los Angeles, California 90067-2561 Telephone: (310) 201-2100
10 Facsimile: (310) 201-2110

11 Peter J. Eliasberg – Bar No. 189110 peliasberg@aclusocal.org
12 Peter Bibring – Bar No. 223981 pbibring@aclusocal.org
13 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
14 1313 West 8th Street Los Angeles, CA 90017
15 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
16 Attorneys for Plaintiff-Petitioners
17

Donald Specter – Bar No. 83925 dspecter@prisonlaw.com
Sara Norman – Bar No. 189536 snorman@prisonlaw.com
PRISON LAW OFFICE 1917 Fifth Street Berkeley, California 94710 Telephone: (510) 280-2621 Facsimile: (510) 280-2704

18

UNITED STATES DISTRICT COURT

19

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

20 YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL
21 GARCIA; ANDRE BROWN; and SHAWN L. FEARS, individually and
22 on behalf of all others similarly situated,

23

Plaintiff-Petitioners,

24

vs.

25 LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL
26 CARVAJAL, in his capacity as Director of the Bureau of Prisons,
27 Defendant-Respondents.
28

CASE NO. 2:20-cv-04450-CBM-PVCx PLAINTIFF-PETITIONERS’ NOTICE OF EX PARTE APPICATION AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES Filed Concurrently with Declaration of Naeun Rim; Declaration of Jimmy Threatt; and Proposed Order Hon. Consuelo B. Marshall, Crtrm 8B

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Case 2:20-cv-04450-CBM-PVC Document 18 Filed 06/01/20 Page 2 of 72 Page ID #:442

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that Plaintiff-Petitioners (“Petitioners”) Yonnedil

3 Carror Torres, Vincent Reed, Felix Samuel Garcia, Andre Brown, and Shawn L.

4 Fears, individually and on behalf of all others similarly situated, apply, ex parte, for

5 a temporary restraining order (“TRO”) and an order to show cause (“OSC”) re

6 preliminary injunction against Defendant-Respondents (“Respondents”) Louis

7 Milusnic, in his official capacity as Warden of FCI Lompoc and USP Lompoc, and

8 Michael Carvajal, in his official capacity as Director of the Bureau of Prisons,

9 enjoining Respondents from continuing to violate Petitioners’ rights under the

10 Eighth Amendment to the United States Constitution to be free from cruel and

11 unusual punishment in relation to Respondents’ failed response to the COVID-19

12 crisis.

13

Specifically, Petitioners request that the Court issue a TRO and an OSC re

14 preliminary injunction in the form of the proposed order submitted concurrently

15 with this ex parte application. This ex parte application is made pursuant to 17

16 U.S.C. § 502(a), Federal Rule of Civil Procedure 65, and Local Rule 65.

17

This ex parte application is based upon this Notice, the Memorandum of

18 Points and Authorities, the Declaration of Naeun Rim, the declaration of Jimmy

19 Threatt, all accompanying exhibits, the filings in this action, the Proposed Order,

20 which is being lodged in accordance with Local Rule 7-20, and any and all

21 evidence, argument, or other matters that may be presented at the hearing.

22

Since May 20, 2020, counsel for Petitioners have been meeting and

23 conferring with counsel for Respondents Assistant United States Attorneys Joannne

24 Osinoff, David M. Harris, and Keith Staub by phone and by email regarding this ex

25 parte application for a temporary restraining order (“TRO”) and order to show cause

26 (“OSC”) re: preliminary injunction, as well as a request to file an oversized brief

27 and a request for expedited discovery, both in this matter and in Wilson v. Ponce,

28 20-CV-4451 MWF (MRWx), which involves substantially similar issues.

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Case 2:20-cv-04450-CBM-PVC Document 18 Filed 06/01/20 Page 3 of 72 Page ID #:443

1 (Declaration of Naeun Rim (“Rim Decl.”) ¶ 22.) They indicated they intended to

2 oppose ex parte both applications. On May 29, 2020, I emailed Mr. Staub to see if

3 Respondents had changed their positions. To date, I have not received a response.

4 Petitioners anticipate Respondents will object. (Id.)

5

Local Rule 5-4.3.4(a)(2)(i) Compliance: Filer attests that all other

6 signatories listed concur in the filing’s content and have authorized this filing.

7 DATED: June 1, 2020

Respectfully submitted,

8

Terry W. Bird

9

Dorothy Wolpert

10

Naeun Rim Shoshana E. Bannett

11

Christopher J. Lee

12

Jimmy Threatt Bird, Marella, Boxer, Wolpert, Nessim,

13

Drooks, Lincenberg & Rhow, P.C.

14

15 16 17 18 DATED: June 1, 2020 19 20 21 22 DATED: June 1, 2020 23 24 25 26

By:

/s/ Naeun Rim

Naeun Rim

Attorneys for Plaintiff-Petitioners

Peter J. Eliasberg Peter Bibring ACLU Foundation of Southern California

By:

/s/ Peter Bibring

Peter Bibring Attorneys for Plaintiff-Petitioners

Donald Specter Sara Norman Prison Law Office

By:

/s/ Donald Specter

Donald Specter Attorneys for Plaintiff-Petitioners

27

28

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1

TABLE OF CONTENTS

2

Page

3 MEMORANDUM OF POINTS AND AUTHORITIES ........................................12

4 I. INTRODUCTION.....................................................................................12

5 II. FACTUAL BACKGROUND.....................................................................17

6

A. There is a Dangerous and Uncontrolled COVID-19 Outbreak at

Lompoc. ..........................................................................................17 7

B. Lompoc Is Not Properly Testing, Treating, or Isolating the

8

Named Petitioners. ...........................................................................21

9

C. Lompoc Refuses to Implement Essential Measures to Protect

Prisoners and Mitigate the Spread of COVID-19 ...............................24 10

1. Rather Than Using Their Power to Release At-Risk

11

Prisoners and Reduce Overcrowding, Respondents Moved

People Into Other Unsanitary Spaces.......................................24 12

2. Respondents Ignored CDC-Issued Guidance for Managing

13

the Virus in Correctional Facilities. .........................................26

14

3. Respondents defied Attorney General Barr’s direction to

“immediately maximize appropriate transfers” to home

15

confinement ...........................................................................34

16

D. Lompoc Is Incapable of Providing Adequate Medical Care for

COVID-19 Patients, Posing an Unconstitutional Threat Both to

17

the Incarcerated and to the Local Community. ...................................37

18 III. ARGUMENT ............................................................................................40

19

A. The Court Should Temporarily Enlarge Petitioners’ Custody

Pursuant to a Supervised, Individualized Inquiry and Require

20

Lompoc to Provide Adequate Medical Care to COVID Positive

Patients. ...........................................................................................40 21

B. Petitioners Are Likely To Succeed on the Merits of Their Eighth

22

Amendment Claims..........................................................................42

23

1. The Conditions at Lompoc, Combined with the Risks

Posed by COVID-19, Create a Serious Medical Need ..............42

24

2. Respondents Acted With Deliberate Indifference to the

25

Health and Safety of COVID-19 Negative Prisoners. ...............44

26

3. Respondents Acted With Deliberate Indifference to the

Medical Needs of COVID-19 Positive Prisoners......................51 27

4. Petitioners Are Not Required To Exhaust Administrative

28

Remedies Here. ......................................................................54

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1 2 3 4 5 6 7 8 9 10 11 12 IV. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

a. Exhaustion of administrative remedies for the § 2241 claim should be waived.........................................54
b. Exhaustion is not required under the PLRA because an administrative remedy is “effectively unavailable” at this time. ...............................................57
5. Petitioners’ habeas claims are properly brought under Section 2241 ..........................................................................59
C. Petitioners and the Class Face Irreparable Harm if They Continue to Be Incarcerated and If Unsafe Conditions are Allowed to Persist At Lompoc..........................................................61
D. It Is in the Public Interest to Release Appropriate Prisoners to Home Confinement and Institute Other Measures to Prevent the Spread of COVID-19 .......................................................................64
E. This Court Has the Power to Grant a TRO and Issue a Provisional Order of Enlargement of Custody While This Habeas Action is Pending. ............................................................................67
CONCLUSION .........................................................................................70

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Alliance for the Wild Rockies v. Cottrell, 5 632 F.3d 1127 (9th Cir. 2011) .........................................................................41

6 Baker v. Sard, 420 F.2d 1342 (D.C. Cir. 1969).......................................................................69
7

8

Banks v. Booth, No. 20-849 (CKK) (D.D.C. April 20, 2020).....................................................53

9 Basank v. Decker,
10 No. 20-CV-2518 (AT), 2020 WL 1481503 (S.D.N.Y. Mar. 26,

11 2020) .............................................................................................................44

12 Bent v. Barr, 13 No. 19-CV-06123, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020) ................. 64, 66

14 Calley v. Callaway, 496 F.2d 701 (5th Cir.1974) ............................................................................69
15

16

Camacho Lopez v. Lowe, No. 20-CV-563, 2020 WL 1689874 (M.D. Pa. Apr. 7, 2020)............................54

17 Cameron v. Bouchard,
18 No. 20-CV-10494, 2020 WL 1929876 (E.D. Mich. Apr. 17, 2020) ............. 44, 51

19 Carmona v. U.S. Bureau of Prisons, 20 243 F.3d 629 (2d Cir. 2001) ............................................................................61

21 Castillo v. Barr, 22 --- F. Supp. 3d ---, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020)
(Hatter, J.)................................................................................................ 64, 66 23
24 Chalk v. U.S. Dist. Court Cent. Dist. of California, 840 F2d 701 (9th Cir. 1988)............................................................................63
25 Cherek v. United States,
26 767 F.2d 335 (7th Cir.1985)............................................................................69
27 Committee of Cen. Am. Refugees v. INS,
28 795 F.2d 1434 (9th Cir. 1986) .........................................................................41
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1 Coronel v. Decker, 2 --- F. Supp. 3d ---, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) ......................65

3 Corr Servs. Corp. v. Malesko, 534 U.S. 61 (2001) .........................................................................................62
4

5

Derron B. v. Tsoukaris, No. 20-CV-3679 (JMV), 2020 WL 2079300....................................................54

6 Doe v. Barr,
7 No. 20-CV-02141-LB, 2020 WL 1820667 (N.D. Cal. April 12,

8 2020) .............................................................................................................64

9 Dotson v. Clark, 10 900 F.2d 77 (6th Cir. 1990).............................................................................69

11 Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019) ...........................................................................63
12

13

Farmer v. Brennan, 511 U.S. 825 (1994) ........................................................................... 43, 45, 62

14 Feliciano v. Gonzales,
15 13 F. Supp. 2d 151 (D.P.R. 1998)....................................................................51

16 Fraihat v. U.S. Immigration and Customs Enforcement, 17 --F.Supp.--, 2020 WL 1932570 (C.D. Cal. April 20, 2020) ................... 44, 63, 64

18 Frontline Med. Assoc., Inc. v. Coventry Healthcare Workers 19 Compensation, Inc.,
620 F. Supp. 2d 1109 (C.D. Cal. 2009)............................................................41 20
21 Hall v. Superior Court, 2020 WL 890044 (N.D. Cal. March 8, 2010) ...................................................69
22 Harris v. Bd. of Supervisors, Los Angeles Cty.,
23 366 F.3d 754 (9th Cir. 2004) ...........................................................................63
24 Harris v. Garner,
25 216 F.3d 970 (11th Cir. 2000) .........................................................................62

26 Helling v. McKinney, 27 509 U.S. 25 (1993) ................................................................................... 43, 63

28
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1 Herb Reed Enters., LLC v. Fla. Entm't Mgmt., 2 736 F.3d 1239 (9th Cir. 2013) .........................................................................63

3 Hernandez v. Campbell, 204 F.3d 861 (9th Cir. 2000) ...........................................................................60
4

5

Hernandez v. County of Monterey, 110 F. Supp. 3d 929 (N.D. Cal. 2015)..............................................................51

6 Hernandez v. Sessions,
7 872 F.3d 976 (9th Cir. 2017) ..................................................................... 55, 66

8 Hill v. Dexter, 9 No. CV 09-778 VBF, 2010 WL 2631661 (C.D. Cal. March 2, 2010) ................45

10 Inland Empire-Immigrant Youth Collective v. Nielsen, 11 No. 17-CV-2048, 2018 WL 1061408 (C.D. Cal. February 26, 2018) ................64

12 Jeffries v. Block, 13 940 F. Supp. 1509 (C.D. Cal. 1996).................................................................43

14 Jett v. Penner, 439 F.3d 1091 (9th Cir. 2006) .........................................................................52
15

16

Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996)..............................................................................43

17 Jones v. Bock,
18 549 U.S. 199 (2007) .......................................................................................58

19 Jovel v. Decker, 20 No. 20-CV-308 (GBD), 2020 WL 1467397 (S.D.N.Y. Mar. 26, 21 2020) .............................................................................................................65

22 Kaur v. U.S. Dep’t of Homeland Security, 2020 WL 1939386..........................................................................................64
23
24 King v. City of L.A., 885 F.3d 548 (9th Cir. 2018) ...........................................................................42
25 Land v. Deeds,
26 878 F.2d 318 (9th Cir. 1989) ...........................................................................69
27 Landano v. Rafferty,
28 970 F.2d 1230 (3d Cir. 1992) ..........................................................................69
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1 Mapp v. Reno, 2 241 F.3d 221 (2d Cir.2001) .............................................................................69

3 Martin v. Solem, 801 F.2d 324 (8th Cir. 1986) ...........................................................................69
4

5

Martinez-Brooks v. Easter, No. 3:20-cv-00569-MPS, 2020 WL 2405350 (D. Conn. May 12,

6 2020) ......................................................................................................passim

7 Melendres v. Arpaio, 8 695 F.3d 990 (9th Cir. 2012) ..................................................................... 63, 65

9 Naddi v. Hill, 10 106 F.3d 275 (9th Cir. 1997) ...........................................................................61

11 Nken v. Holder, 556 U.S. 418 (2009) .......................................................................................65
12

13

Perez v. Cox, 788 Fed. Appx. 438 (9th Cir. 2019) .................................................................45

14 Pfaff v. Wells,
15 648 F.2d 689 (10th Cir. 1981) .........................................................................69

16 Preiser v. Rodriguez, 17 411 U.S. 475 (1973) .......................................................................................60

18 Republic of the Philippines v. Marcos, 19 862 F.2d 1355 (9th Cir. 1988) .........................................................................42

20 Roman v. Wolf, 21 No. CV 20-00768 (TJH), 2020 WL 1952656 (C.D. Cal. Apr. 23,
2020) .............................................................................................................41 22
Ross v. Blake, 23 136 S. Ct 1850 (2016).....................................................................................58
24 Sapp v. Kimbrell,
25 623 F.3d 813 (9th Cir. 2010) ...........................................................................58

26 Smith v. Washington, 27 781 Fed. Appx. 595 (9th Cir. 2019) .................................................................45

28
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Case 2:20-cv-04450-CBM-PVC Document 18 Filed 06/01/20 Page 10 of 72 Page ID #:450

1 Thakker v. Doll, 2 No. 20-CV-0480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020)........................65

3 Thomas v. U.S, 779 F. Supp. 2d 154 (D.D.C. 2011) .................................................................62
4

5

United States v. Arreola-Bretado, --F.Supp.3d--, 2020 WL 2535049 (S.D. Cal. May 15, 2020).............................67

6 United States v. Brady,
7 No. 20-CV-623, 2020 WL 1865486 (M.D. Pa. Apr. 14, 2020)..........................65

8 United States. v. Paige, 9 369 F. Supp. 2d 1257 (D. Mon. 2005) .............................................................57

10 Univ. of Texas v. Camenisch, 11 451 U.S. 390 (1981) .......................................................................................41

12 Valentine v. Collier, 13 590 U.S. ___ (2020), 2020 WL 249751 (May 14, 2020) ............................. 46, 59

14 Wilson v. Williams, 20-3447, ECF No. 23-1 (6th Cir. May 4, 2020)................................................61
15

16

Wilson v. Williams, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020) ..........................................passim

17 Wilson v. Williams,
18 No. 20-3447, ECF No. 23 (6th Cir. May 4, 2020).............................................64

19 Winter v. Nat’l Resources Defense Council, 20 555 U.S. 7 (2008) ..................................................................................... 41, 62

21 Woodcock v. Donnelly, 22 470 F.2d 93 (1st Cir. 1972) .............................................................................69

23 Xochihua-Jaimes v. Barr, 24 798 F. App’x 52 (9th Cir. Mar. 24, 2020) ........................................................65

25 Statutes

26 18 U.S.C. § 3624(b).............................................................................................70

27 18 U.S.C. § 3636(g)(2) ........................................................................................61

28

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1 28 U.S.C. §§ 2241, 2254, and 2255 ......................................................................62

2 28 U.S.C. § 2243.................................................................................................69
3 Other Authorities 4
Fed. R. Civ. P. 65(b)(1)(A) ..................................................................................41 5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

This case presents, quite literally, a matter of life or death. Each hour, the

4 people imprisoned at FCI Lompoc and USP Lompoc (collectively “Lompoc”),

5 whether incarcerated for minor or major offenses, are facing the death penalty. On

6 May 26, 2020, in the time it took to prepare this application for emergency relief

7 after the filing of the initial Complaint, a third person incarcerated at Lompoc—one

8 who had not been sentenced to death by a judge or jury—died of complications

9 related to COVID-19.1 Disturbingly, Mohamed Yusuf was 37 years with no pre-

10 existing conditions. BOP states only that he tested positive for COVID-19 on May

11 7, 2020, was placed in “isolation,” and found dead 18 days later.2 Prisoners housed

12 with Mr. Yusuf confirm that Mr. Yusuf had been very ill for four days in the

13 dormitory, and repeatedly asked for, and was refused medical attention after being

14 accused of “faking it.”3 Eventually, Mr. Yusuf collapsed and fell out of his bunk

15 and went into convulsions on the ground.4 The prisoners made as much noise as

16

17 1 Tyler Hayden, More Suffering and Death at Lompoc Prison Racked with

18

COVID-19, SANTA BARBARA INDEPENDENT (May 29, 2020) available at https://www.independent.com/2020/05/29/more-suffering-and-death-at-lompoc-

19 prison-wracked-with-covid-19/

20 2 Federal Bureau of Prisons, Inmate Death at USP Lompoc’s Satellite Camp, May

21 6, 2020, available at https://www.bop.gov/resources/news/pdfs/20200507_press_release_lox.pdf
22

3
23

Declaration of Naeun Rim (“Rim Decl.”) Exh. S (Declaration of Shelly

Hemmelgarn (“Hemmelgarn Decl.”) ¶ 5); see also Hayden, supra, available at

24 https://www.independent.com/2020/05/29/more-suffering-and-death-at-lompoc-

25 prison-wracked-with-covid-19/ (also recounting a story about inmate Edgar Udarbe, who lay semi-comatose for four days in his dorm, while correctional officers refused

26 to take action).

27 4 Rim Decl. Exh. S (Hemmelgarn Decl. ¶ 5).

28

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1 possible to try and get help from the staff, but they were so slow in responding that

2 Mr. Yusuf turned blue and died before they got there.5

3

Petitioner Yonnedil Carror Torres is scared of suffering Mr. Yusuf’s fate. He

4 sits in his two-man cell at Lompoc, the site of one the worst COVID-19 outbreaks at

5 a correctional facility in the country. At the age of 24, he is scarred with acute lung

6 damage after his recent battle with a life-threatening case of coronavirus. For five

7 days, he suffered from obvious coronavirus symptoms, including fever, diarrhea,

8 and body aches, but his requests for medical assistance were ignored. His story is

9 eerily reminiscent of Mr. Yusuf’s—it was not until he went into acute respiratory

10 failure and collapsed in his cell, and after every prisoner on his block banged their

11 cell doors in unison to demand that he receive medical attention, that Lompoc staff

12 tested Mr. Torres for COVID-19. He tested positive and was taken to a hospital,

13 where he had to be put on a ventilator. His voice is now so hoarse that his sister

14 does not recognize it.6 He is afraid of becoming the next updated statistic under the

15 “Inmate Deaths” column of the BOP’s COVID-19 webpage.

16

Like Mr. Torres, Lompoc staff fear there will be more deaths too. The BOP

17 officers’ union filed on imminent danger complaint with OSHA at the end of March,

18 citing Lompoc as one of the prisons exposing employees to “recognized hazards

19 causing or are likely to cause death or serious physical harm.”7 Staff have not been

20 provided with adequate personal protective equipment (“PPE”), have not been

21 permitted to isolate and quarantine properly, and are still being asked to transfer

22

23 5 Id.

24 6 Rim Decl. Exh. F (Declaration of Kiara Carror (“Carror Decl.”))

25 7 Occupational Safety and Health Administration, Notice of Alleged Safety or
26 Health Hazards, Mar. 31, 2020, available at https://www.afge.org/globalassets/documents/generalreports/coronavirus/4/osha-7-
27 form-national-complaint.pdf

28

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1 prisoners for non-medical reasons, even if they are showing symptoms.8

2

There is good reason that prisoners and staff alike are fearful of the conditions

3 at Lompoc. Lompoc is currently engulfed by COVID-19. The Lompoc outbreak is

4 the worst outbreak of COVID-19 at any BOP facility in the country.9 Over the

5 course of a mere two months, at least 1,066 prisoners at Lompoc have tested

6 positive for COVID-19.10 Although BOP has apparently re-categorized most of the

7 prisoners who recently tested positive as being “recovered,” a measurement that is

8 not being used by the CDC,11 this amounts to nothing more than reshuffling of

9 chairs on the deck of the Titanic—the recent death of a “recovered” prisoner at

10 Terminal Island is a clear indication of how superficial that distinction is.12 The

11 numbers are especially astonishing given that only FCI Lompoc, a low security

12 facility, has undergone mass testing. UPS Lompoc is still only testing prisoners

13 who show severe symptoms, meaning more than half of the prisoners at Lompoc

14 8 Lia Russell, Union Warns of Coronavirus Exposure in Federal Prisons, VA
15 Facilities, FCW (Apr. 7, 2020) https://fcw.com/articles/2020/04/07/afge-osha16 complaints-covid19.aspx

17 9 Richard Winton, Coronavirus Outbreak at Lompoc Prison is the Worst in the

18

Nation: 69 Inmates, 25 Staff Infected, LOS ANGELES TIMES (Apr. 16, 2020) available at https://www.latimes.com/california/story/2020-04-16/coronavirus-

19 outbreak-at-lompoc-federal-prison-is-worst-in-nation-with-69-inmates-25-staff-

20 infected

21 10 Federal Bureau of Prisons, COVID-19 Coronavirus, https://www.bop.gov/coronavirus/ (last accessed June 1, 2020).
22
23 11 Catherine Marfin, Why Aren’t Coronavirus Recoveries Always Reported, THE DALLAS MORNING NEWS (May 19, 2020) available at
24 https://www.dallasnews.com/news/public-health/2020/05/19/why-arent-
25 coronavirus-recoveries-always-reported/?outputType=amp

26 12 Federal Bureau of Prisons, Inmate Death at FCI Terminal Island, May 6, 2020, available at
27 https://www.bop.gov/resources/news/pdfs/20200527_press_release_trm.pdf

28

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1 have still not been tested. The prison is overcrowded and overwhelmed, unwilling to

2 protect prisoners who have tested negative from the virus and unable to adequately

3 treat its COVID-19 patients. Leadership at Lompoc is in chaos—since the first

4 positive cases were reported in late March, Lompoc has been through three wardens

5 in just two months.13

6

What are Respondents doing in the face of this catastrophe? Instead of using

7 the authority Congress provided them under the Coronavirus Aid, Relief, and

8 Economic Security Act (“CARES Act”) to release medically vulnerable prisoners

9 into home confinement, and instead of accelerating their evaluation of

10 compassionate release requests, Lompoc chose to cut off prisoners’ access to

11 communication with the outside world by severely restricting phone and email

12 privileges—against the recommendation of the CDC—and shuffled sick prisoners

13 from one unsafe, crowded location to another. Even after a belated round of mass

14 testing confirmed that their half-baked social distancing measures had failed

15 miserably, Respondents are refusing to implement the obvious solution that would

16 both prevent even more infection and reduce the strain on medical resources:

17 significantly reducing the prisoner population. Experts confirm that it is impossible

18 for Respondents to make Lompoc compliant with CDC guidelines without taking

19 this basic step.14 But Respondents have virtually ignored the directive of Attorney

20 General William Barr, who issued a memo on April 3, 2020, that urged the BOP to

21 “immediately maximize appropriate transfers to home confinement of all

22 appropriate inmates” at facilities with major coronavirus outbreaks like Lompoc,

23

24 13 Tyler Hayden, Lompoc Prison Explodes with Active COVID-19 Cases, SANTA
25 BARBARA INDEPENDENT (May 13, 2020) available at https://www.independent.com/2020/05/13/lompoc-prison-explodes-with-active-
26 covid-19-cases/

27 14 Rim Decl. Exh. L (Declaration of Samsher Samra (“Samra Decl.”) ¶¶12-20.)

28

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1 including “all at-risk inmates—not only those who were previously eligible for

2 transfer.”15 Despite this clear directive, according to an advisory recently circulated

3 to prisoners at Lompoc, Respondents are still using the same criteria for home

4 confinement that was in place before passage of the CARES Act.16 Out of the more

5 than 2,500 people imprisoned at Lompoc, only 59 are even under consideration

6 based on this outdated criteria, and less than half are scheduled for release.17

7 Respondents’ deliberate and knowing refusal to use their authority to reduce the

8 prison population swiftly and to implement effective measures to protect prisoners

9 from this highly contagious and deadly disease violates the Eighth Amendment.

10

Petitioners Yonnedil Carror Torres, Vincent Reed, Felix Samuel Garcia,

11 Andre Brown, and Shawn L. Fears, individually and on behalf of all others similarly

12 situated, move for a Temporary Restraining Order and ask that this Court put in

13 place a structured, court-supervised process for immediate, individualized

14 consideration of each prisoner’s suitability for release on an accelerated schedule

15 that is more focused on the critical factors of prisoner and public safety than the

16 current home confinement review process at Lompoc. Petitioners are asking that the

17 Court institute this process with the goal of releasing a sufficient number of

18 prisoners to allow for physical distancing, quarantine, and isolation in accordance

19 with CDC guidelines for those who remain at Lompoc, and to provide the minimally

20 adequate medical care required by the Eighth Amendment. At 37 years old and with

21 no preexisting conditions, Mr. Yusuf, who was serving an 11-year sentence for

22

23 15 Rim Decl. Exh. A (Memorandum For Director of Bureau of Prisons re Increasing
24 Use of Home Confinement at Institutions Most Affected by COVID-19, Office of
25 the Attorney General, Washington, D.C. (Apr. 3, 2020)) at 8-9 (emphasis added).

26 16 Rim Decl. Exh. Q (Talking Points for Inmate Asking About Early Releases During COVID-19 as of 4/20/20).
27

28 17 Id.

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1 conspiring to support a foreign terrorist organization, was not likely a candidate for

2 home confinement or compassionate release—but if Respondents had put more

3 medically vulnerable people on home confinement and reduced the population

4 enough to allow for proper isolation and social distancing, Mr. Yusuf might still be

5 alive today. Congress gave Respondents the ability to act humanely and

6 constitutionally, and Respondents have refused. Immediate judicial relief is

7 necessary to hold Respondents accountable and ensure that more lives are not

8 unnecessarily not lost.

9 II. FACTUAL BACKGROUND

10

A. There is a Dangerous and Uncontrolled COVID-19 Outbreak at

11

Lompoc.

12

FCI Lompoc is a low security prison located in Santa Barbara County,

13 California. Just down the road is its sister facility USP Lompoc, which houses

14 medium security individuals and also contains minimum security satellite camps.

15 Lompoc is currently home to 2,626 of these prisoners,18 which is tragically at least

16 three fewer than when the COVID-19 public health crisis began. It is clear from the

17 public record that Respondents will not act to meet the bare minimum requirements

18 of the Constitution unless forced to do so. On March 21, 2020, only two months

19 ago, BOP reported the first case of a prisoner testing positive for COVID-19.

20 Although public health officials warned that BOP was walking into a “disaster

21 waiting to happen[,]” BOP claimed that it was “confident” in its ” robust efforts to

22 keep correctional workers and the inmate population safe and healthy[.]”19 A little

23

24 18 Federal Bureau of Prisons, FCI Lompoc https://www.bop.gov/locations/institutions/lof/ and USP Lompoc
25 https://www.bop.gov/locations/institutions/lom/, as of June 1, 2020.

26 19 Kimberly Kindy, Emma Brown, Dalton Bennett, ‘Disaster Waiting to Happen’:
27 Thousands of Inmates Released as Jails and Prisons Face Coronavirus Threat, THE
28 WASHINGTON POST (March 25, 2020) available at

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1 over a month later, BOP’s own statistics show that this confidence was fatally

2 misplaced.

3

In the wake of this alarming report, hundreds of protesters have descended on

4 Lompoc demanding that prisoners be released.20 Since the filing of this lawsuit,

5 Lompoc’s official reported numbers have suddenly taken a precipitous turn, with

6 Lompoc claiming that nearly all of their prisoners were now “recovered.” It is not

7 clear how BOP is defining “recovered” or how they are housing these so-called

8 recovered patients, but according to doctors it is important to continue to quarantine,

9 monitor, and protect “recovered” prisoners, given the unknowns regarding whether

10 people who have been infected develop immunity against future infection.21 The

11 CDC does not re-categorize positive cases as “recovered” on a national level, and

12 there is no standard definition for “recovery” that is being used by public health

13 institutions.22 The number of “recoveries” has been described by health

14 professionals as a metric that “really doesn’t help us make decisions about what

15 precautions communities need to take, or really how prevalent in the community

16 COVID is.”23

17

When accounting for both positive and “recovered” prisoners, as of June 1,

18 https://www.washingtonpost.com/national/disaster-waiting-to-happen-thousands-of-
19 inmates-released-as-jails-face-coronavirus-threat/2020/03/24/761c2d84-6b8c-11ea-
20 b313-df458622c2cc_story.html

21 20 Janene Scully, Hundreds Rally to Protest Plight of Inmates at Coronavirus-
22 Riddled Lompoc Prison, SAN LUIS OBISPO TRIBUNE (May 26, 2020) https://www.sanluisobispo.com/news/coronavirus/article242994501.html
23 21 See e.g. Rim Decl. Exh. L (Samra Decl. ¶ 15).
24
25 22 Marfin, supra, available at https://www.dallasnews.com/news/publichealth/2020/05/19/why-arent-coronavirus-recoveries-always-
26 reported/?outputType=amp

27 23 Id. 28
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1 2020, BOP reports:

2

• 900 cases out of 949 prisoners at FCI Lompoc—nearly a 100% rate of

infection; and

3

• 176 cases out of 1677 prisoners at USP Lompoc, which has not yet

4

undergone a round of mass testing.

5 In total, even with only one of the two facilities tested, 1,065 out of the 2,626

6 individuals incarcerated at Lompoc have recently tested positive for coronavirus.24

7 Three prisoners have died already. The numbers are clear: Lompoc has utterly failed

8 to protect the prisoners in its care from COVID-19.

9

At this point in the COVID-19 pandemic, the substantial danger posed by

10 COVID-19 is well-known. COVID-19 causes serious illness, with overall case

11 fatality rates in the United States so far estimated at 5.8%.25 Approximately 20% of

12 those who are infected and develop symptoms require significant medical

13 intervention.26 The condition of patients who require hospitalization often

14 deteriorates in rapid fashion. For instance, approximately 50% develop hypoxemia

15 (severe oxygen shortage) by the eighth day.27 Twenty-nine percent develop Acute

16 Respiratory Distress Syndrome (“ARDS”). ARDS, lethal on its own, also causes

17 fatal complications such as blood clots, collapsed lung, infections and scarring of

18 lung tissue.28

19

The effects of COVID-19 are especially serious for people who are most

20 vulnerable, including people over the age of 50, and those of any age with

21

24
22

See Federal Bureau of Prisons, COVID-19 Coronavirus,

https://www.bop.gov/coronavirus/ (last accessed June 1, 2020).

23

24 25 Rim Decl. Exh. L (Samra Decl. ¶ 6.)

25 26 Id.

26 27 Id.

27 28 Id. 28
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1 underlying health conditions, including weakened immune systems, asthma,

2 hypertension, diabetes, serious heart and lung disease.29 Although individuals in

3 these categories are most vulnerable, even younger and healthier people can suffer

4 severe consequences.30 For example, adults age 20-44 account for 20% of all

5 hospitalizations and 12% of ICU admissions.31 Even healthier people who contract

6 COVID-19 are susceptible to severe strokes.32 For some, the stroke is even the first

7 symptom of COVID-19.33 In fact, preliminary evidence suggests COVID-19 may

8 render lasting organ damage in even minimally symptomatic or completely

9 asymptomatic patients.34 Importantly, COVID-19 is a novel illness, and doctors and

10 29 While the CDC typically classifies only people 65 and older as vulnerable,
11 incarcerated individuals tend to be in poorer health than those in the general 12 population, justifying the use of an earlier cutoff in classifying people deemed
vulnerable. Rim Decl. Exh. K ¶ 8. The CDC itself acknowledges that incarcerated 13 individuals are in poorer health than the general population, even at a younger age. 14 See also Rim Decl. Exh. C (Interim Guidance on Management of Coronavirus
Disease 2019 (COVID-19) in Correctional and Detention Facilities) at 16 (“Note 15 that incarcerated/detained populations have higher prevalence of infectious and
16 chronic diseases and are in poorer health than the general population, even at younger ages.”) See also Report of the WHO-China Joint Mission on Coronavirus
17 Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, 18 https://www.who.int/docs/defaultsource/coronaviruse/whochina-joint-mission-on-
covid-19-final-report.pdf (hereinafter “WHO-China Joint Mission Report”) 19 (“Individuals at highest risk for severe disease and death include people aged over
20 60 years and those with underlying conditions such as hypertension, diabetes, cardiovascular disease, chronic respiratory disease and cancer.”)
21
22 30 Rim Decl. Exh. L (Samra Decl. ¶ 9).

23 31 Id.

24 32 Id.

25 33 Roni Caryn Rabin, Coronavirus May Pose a New Risk to Younger Patients:
26 Strokes, NEW YORK TIMES (May 14, 2020), https://www.nytimes.com/2020/05/14/health/coronavirus-strokes.html
27

28 34 Id. (describing the way that COVID-19 can severely damage lung tissues, which

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1 epidemiologists are continuing to learn about new symptoms and complications.

2

B. Lompoc Is Not Properly Testing, Treating, or Isolating the Named

3

Petitioners.

4

Lompoc is one of the few BOP facilities that has made the unusual decision to

5 severely restrict access to phone and email for prisoners under the guise of

6 preventing the spread of the virus. Since this lawsuit was filed, and despite repeated

7 inquiries to both Lompoc staff and counsel for Respondents, counselfor Petitioners

8 still have been unable to get a legal call with any of the named Petitioners except

9 one.35 But the limited information that has been provided by family members and

10 individual counsel for the named Petitioners paints a disturbing picture of a prison

11 that is unwilling or unable to test, treat, or isolate people properly while

12 simultaneously refusing to even consider releasing medically vulnerable, non-

13 violent prisoners who have a viable release plan into home confinement.

14

Petitioner Torres is incarcerated at USP Lompoc. His frightening experience

15 indicates that USP Lompoc is still not testing prisoners unless they are already in

16 serious danger. As previously discussed, when Petitioner Torres, who is known to

17 have asthma, reported symptoms consistent with coronavirus, he was ignored for

18 days and denied medical treatment until he went into respiratory shock and had to be

19 put on a ventilator. Only then was he given a COVID-19 test, which came back

20 positive. Petitioner Torres’s family has submitted a submitted a request for

21 compassionate release on his behalf to the Warden of Lompoc on May 11, 2020, and

22

23

24 in some case can cause a permanent loss of respiratory capacity, and target the heart
25 muscle causing a condition known as myocarditis, or inflammation of the heart muscle, which can lead to rapid or abnormal heart rhythms in the short term and
26 long-term heart failure that limits exercise tolerance and the ability to work.)

27 35 Declaration of Jimmy Threatt (“Threatt Decl.”) ¶ 2.

28

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1 to date, they have not received a response.36

2

Petitioner Reed is also incarcerated at USP Lompoc. He is 53 years old and

3 has hypertension, making him especially vulnerable to complications resulting from

4 COVID-19. Petitioner Reed’s son has juvenile diabetes, is fully blind, and was

5 recently diagnosed with kidney failure at the age of 30. Petitioner Reed may be the

6 only viable candidate to donate a kidney to his son. Around March 27 or 28, 2020,

7 Petitioner Reed began developing symptoms of COVID-19. On March 30, 2020, he

8 was tested and immediately put into solitary confinement. After Petitioner Reed’s

9 results came back positive, he was left in solitary confinement for days and then

10 transferred to an old and unsanitary housing unit where—along with others who had

11 tested positive—he languished without treatment. On April 14, 2020, Mr. Reed was

12 returned to the general population. He was not tested again for COVID-19 prior to

13 his return. Petitioner Reed submitted a request for compassionate release/reduction

14 in sentence to the Warden of Lompoc on January 7, 2020. His request was

15 rejected.37

16

Petitioner Brown is incarcerated at USP Lompoc. He is 55 years old, illiterate,

17 and has learning disabilities. Because Petitioner Brown is illiterate, the

18 communications blackout at Lompoc, which severely restricts access to phone and

19 email for prisoners, has functionally cut him off from the outside world. His

20 conviction is currently under appeal with the Ninth Circuit Court of Appeals, with

21 argument expected in late 2020. Petitioner Brown has prostate cancer that must be

22 treated with chemotherapy or surgery. He is also asthmatic, suffers from high blood

23 pressure, and has arthritis in both wrists. Through counsel, Petitioner Brown

24 submitted a request for compassionate release to the Warden of Lompoc on May 13,

25

26 36 Rim Decl. Exh. F (Carror Decl.).

27 37 Rim Decl. Exh. G (Declaration of Joanna Munson Perales (“Perales Decl.”)).

28

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1 2020. He has not received a response.38

2

Petitioner Garcia was incarcerated at FCI Lompoc under recently, when he

3 was abruptly moved to a makeshift cell block set up in a warehouse at USP Lompoc

4 after testing negative for COVID-19. There, he sits in a small cell with one other

5 prisoner, under total lockdown almost twenty-four hours a day. He is not allowed to

6 shower or change into clean clothes, and has been forced to wet his body with water

7 from his sink in a last resort to maintain personal hygiene. He is 36 years old and set

8 to be transferred to a “halfway house” on July 7, 2020, and released from custody on

9 November 6, 2020. Given his coming release date, Petitioner Garcia submitted an

10 application for Compassionate Release and/or Home Confinement to the Warden of

11 Lompoc on May 11, 2020, but he has not yet received a response.39

12

Petitioner Fears is 50 years old and incarcerated at a minimum security

13 satellite camp at USP Lompoc. Petitioner Fears lives in a crowded open-plan

14 dormitory with more than a hundred other prisoners, many of whom are sick. He is

15 relying only on a single mask given to him in late April to protect him from

16 infection. Over a month after the outbreak at Lompoc started, he has still not been

17 tested for COVID-19. Guards have stopped accepting requests for medical treatment

18 from others in his dormitory, and those who typically receive regular medical

19 treatment are no longer receiving it.40 Petitioner Fears submitted an application for

20 Compassionate Release and/or Home Confinement to the Warden of Lompoc on

21 April 12, 2020,, but has not yet been granted release.41

22

23 38 Rim Decl. Exh. I (Declaration of Verna Wefald (“Wefald Decl.”)).
24

25 39 Rim Decl. Exh. H (Declaration of Graciela Zavala-Garcia (“Zavala-Garcia Decl.”)).
26 40 Rim Decl. Exh. J (Declaration of Nema Zayed Fears (“Fears Decl.”)).
27

28 41 Threatt Decl. ¶ 18.

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1

C. Lompoc Refuses to Implement Essential Measures to Protect

2

Prisoners and Mitigate the Spread of COVID-19

3

1. Rather Than Using Their Power to Release At-Risk

4

Prisoners and Reduce Overcrowding, Respondents Moved

5

People Into Other Unsanitary Spaces

6

Beginning as early as March 12, 2020, California Governor Gavin Newsom

7 informed the public that physical distancing was critical to prevent the spread of

8 COVID-19 and instructed people to remain six feet apart from one another.42 But

9 the Governor’s recommendation fell on deaf ears at Lompoc. With a designated

10 capacity of 2,058, Lompoc’s current population of 2,626 prisoners makes it

11 overcrowded by 130%.43 Unsurprisingly, without a reduction in prison population,

12 prisoners at Lompoc have not been able to maintain six-feet of physical difference.

13 There are a variety of housing arrangements at Lompoc. According to Petitioner

14 Fears, many low security prisoners at Lompoc and the camps at USP Lompoc reside

15 in open plan dorms with as many as 160 other prisoners in the same room, assigned

16 to bunkbeds that are not separated by walls, with no more than two to four feet

17 between the bunks.44 Richard Lumpkin, who was recently released from FCI

18 Lompoc, states that most dorms have 70 to 80 prisoners and are on the same floor as

19 approximately 16 unlocked cells that house between 4 to 8 people per cell. The

20 prisoners in both the dorm and the cells on the same floor share one of two

21 42 Bostock, Bill, California Banned Gatherings of 250 or More and Said Smaller
22 Ones Should Only Happen if People Stand Six Feet Apart, Business Insider, March
23 12, 2020, https://www.businessinsider.com/california-bans-gatherings-250-preventcoronavirus-six-foot-spacing-rule-2020-3
24

25 43 Federal Bureau of Prisons, Prison Rape Elimination Act (PREA) Audit Report, June 12, 2018, https://www.bop.gov/locations/institutions/lof/prea_lof.pdf at 2, 6.
26 44 Threatt Decl. ¶ 18; Rim Decl. Exh. P (Declaration of Richard Lumpkin
27 (“Lumpkin Decl.”)) ¶¶ 8-9.

28

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1 bathrooms with six sinks, six toilets, three urinals, and five or six showers.45 Even

2 in the cells, it is impossible to maintain social distancing—Mr. Lumpkin was one of

3 four people in an eight-person cell and reports that when he had to stand up for daily

4 count, he was shoulder to shoulder with his other cellmates.46

5

The accounts of Respondents’ attempts to “socially distance” prisoners

6 without reducing the population are appalling. It appears that those who test

7 positive are initially thrown into the SHU, where they were not given any medical

8 treatment for days.47 After a few days, the infected prisoners are crammed into an

9 isolation dormitory with other sick prisoners, where again their symptoms go largely

10 ignored part from inconsistent temperature checks.48 The isolation dormitory is

11 appallingly unsanitary—it was closed three years ago due to mold contamination

12 and was not cleaned before the sick prisoners were placed there. The isolation

13 dormitory is empty apart from a few mattresses that were brought in by the guards.49

14 Some of those who test negative have been moved into two-person cells in a

15 makeshift housing unit set up in a warehouse at USP Lompoc.50 Prisoners in the

16 warehouse cells share a sink and a toilet and are kept on total lockdown for nearly

17 twenty four hours a day, without access to showers or clean clothes.51 Still others,

18 particularly remain in open-plan dormitories and without being tested at all and are

19 45 Rim Decl. Exh. P (Lumpkin Decl. ¶¶ 9-11).
20
21 46 Id. ¶ 12.

22 47 Rim Decl. Exh. G (Perales Decl. ¶ 6)..

23 48 Rim Decl. Exh. G (Perales Decl. ¶ 7); Rim Decl. Exh. S (Hemmelgarn Decl. ¶ 3) 24 (prisoner Hemmelgarn never received temperature check).

25 49 Rim Decl. Exh. G (Perales Decl. ¶ 7).

26 50 Id.

27 51 Rim Decl. Exh. H (Zavala-Garcia Decl. ¶ 5).

28

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1 forced to share a space with many other sick people, unable to protect themselves

2 from infection.52

3

Even now, after nearly 100% of Lompoc FCI prisoners have tested positive,

4 and three prisoners across both facilities have died, prisoners are forced to wait in

5 lines to pick up medication and are not able to practice physical distancing while in

6 line.53 Prisoners are required to clean their own shared bathrooms and housing units

7 but are not given sufficient supplies to do so. When Mr. Lumpkin was still in

8 custody, he recalls one time where the guards brought 36 rags to be used by all 140

9 prisoners on his floor to clean their bunks, bathroom faucets, and toilet handles.

10 Respondents only provide heavily watered-down disinfectant, which frequently runs

11 out, and no paper towels.54 In such close, unsanitary quarters, it is indisputable that

12 prisoners will continue to fall ill on a daily basis. Once they become ill it goes

13 without saying that they must be provided treatment.

14

2. Respondents Ignored CDC-Issued Guidance for Managing

15

the Virus in Correctional Facilities.

16

Early on, the Center for Disease Control recognized that correctional facilities

17 like Lompoc are incubators and amplifiers for an infectious disease like COVID-

18 19.55 The virus is extremely contagious; its spreads from person-to-person through

19

20 52 Rim Decl. Exh. J (Fears Decl. ¶ 4); Exh. K (Declaration of Darwin P. Roberts
21 (“Roberts Decl.”) ¶ 8).

22 53 Rim Decl. Exh. P (Lumpkin Decl. ¶ 13.).

23 54 Id. ¶ 38.
24 55 Rim Decl. Exh. B at 13 (“Correctional and detention facilities can include
25 custody, housing, education, recreation healthcare, food service and workplace
26 components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among
27 incarcerated/detained persons, staff, and visitors.”)

28

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1 respiratory droplets emitted when coughing and sneezing, or even through heavy

2 breathing activities, like yelling and singing.56 It also spreads through contact with

3 contaminated surfaces and objects, where the virus can survive up to three days.57

4 Given that prisoners experience their daily lives in close quarters, have limited

5 access to daily hygiene resources, and are in worse health overall than the general

6 population, COVID-19 poses enhanced risks to prisoners.58

7

To address this enhanced risk, the federal government provided correctional

8 institutions with guidance on how to address these challenges. On March 23, 2020,

9 the Center for Disease Control and Prevention (“CDC”) issued “Interim Guidance

10 on Management of Coronavirus Disease (COVID-19) in Correctional and Detention

11 Facilities” (“Interim Guidance”), which describes measures necessary to prevent the

12 spread of COVID-19 in correctional facilities.59 These guidelines include:

13 diagnosing, isolating, and caring for those with COVID-19; implementing

14 quarantine of prisoners or staff who have had close contact with positive cases;

15 remediating spaces with known coronavirus contact; enacting stricter sanitation

16 policies; providing personal protective equipment (“PPE”) to those who have tested

17 positive and guards who interact with them; and implementing effective social

18 distancing measures.60 As the CDC explained, “[c]onsistent application of specific

19 preparation, prevention, and management measures can help reduce the risk of

20

21 56 Rim Decl. Exh. L (Samra Decl.) ¶ 4.
22 57 National Institutes of Health, New Coronavirus Stable for Hours on Surfaces,
23 March 17, 2020, https://www.nih.gov/news-events/news-releases/new-coronavirus24 stable-hours-surfaces

25 58 Rim Decl. Exh. B at 13.

26 59 Rim Decl. Exh. B.

27 60 Id. 28
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1 transmission and severe disease from COVID-19.”61

2

But Respondents have failed and refused to consistently apply the CDC

3 guidance at Lompoc. To the contrary, Respondents spurned the guidance and

4 profoundly and pervasively failed to protect the health and safety of the incarcerated

5 individuals in their care at Lompoc. Respondents’ failure to follow CDC guidance

6 breaks down into four general categories: (1) Failure to adequately implement

7 social distancing measures; (2) Failure to implement necessary hygiene measures

8 and provide appropriate PPE; (3) Failure to adequately test, trace and

9 quarantine/isolate; and (4 ) Failure to provide adequate medical monitoring and

10 treatment. For each category, a chart below compares the relevant CDC guidance

11 with Respondents’ inadequate actions or improper inaction.

12

1. Failure to adequately implement social/physical distancing measures:

13 CDC Guidance

Lompoc’s Improper Response

14 Social distancing “is a cornerstone of Prisoners who have tested positive have

reducing transmission of respiratory been crammed together in an open-plan

15 diseases such as COVID-19.

isolation dormitory infested with

Corrections facilities must

mold.63 Hundreds of prisoners at USP

16 “[i]mplement social distancing

Lompoc who remain untested continue

strategies to increase the physical space to reside in open-plan dormitories

17 between incarcerated/detained persons where they sleep in beds spaced two to

(ideally 6 feet between all individuals, four feet away from other prisoners,

18 regardless of the presence of

many of whom are obviously sick.64

symptoms).62

Social distancing is impossible when

19

moving through the stairs and standing

in line for meals and pill call.65

20

2. Failure to implement necessary hygiene measures and provide 21

22 61 Rim Decl. Exh. B at 13.
23
24 62 Rim Decl. Exh. B at 15.

25 63 Rim Decl. Exh. G (Perales Decl. ¶ 7).

26 64 Threatt Decl. ¶ 18; Rim Decl. Exh. P (Lumpkin Decl. ¶¶ 8-9).

27 65 Threatt Decl. ¶ 18; Rim Decl. Exh. P (Lumpkin Decl. ¶¶ 13, 15).

28

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1 appropriate PPE

2 CDC Guidance

Lompoc Response

3 Prisoners should be provided with

Respondents provided prisoners with

“undiluted disinfectants,” which are heavily watered-down solutions and a

4 necessary to actually kill the virus on few rags to apply the useless

surfaces 66

disinfectant.67 Prisoners frequently run

5

out of cleaning solution and have

nothing to clean with. Petitioners

6

simply do not have access to the

cleaning supplies necessary to sanitize

7

themselves, their personal items or their

living areas.

8

Confirmed or suspected cases of

Prisoners were initially given 1 paper

9 COVID-19 should wear face masks at mask in early April and then 3 cloth

all times. Corrections institutions

masks at the end April. They were told

10 should “[p]rovide clean masks as

to launder and reuse the dirty masks,

needed. Masks should be changed at but they are not given enough soap to

11 least daily, and when visibly soiled or even shower, much less clean masks.69

wet.”68

12

Staff having direct contact with

In the BOP union’s OSHA complaint,

13 confirmed or suspected cases must wear Lompoc is listed as one of the prisons

face masks and other PPE.70 14

were staff have not been provided with adequate personal protective equipment

(“PPE”), including n95 masks.71 Staff

15

do not wear masks regularly and

frequently pull them down when talking

16

to prisoners.72 If a guard without a mask

contracts the virus from a sick prisoner,

17

he could spread COVID-19 by visiting

units with healthy prisoners. 18

19 66 Rim Decl. Exh. B at 20.
20
21 67 Threatt Decl. ¶ 18; Rim Decl. Exh. P (Lumpkin Decl. ¶¶ 38).

22 68 Rim Decl. Exh. B at 26.

23 69 Rim Decl. Exh. P (Lumpkin Decl. ¶¶ 34-35).

24 70 Rim Decl. Exh. B at 27.
25 71 Russell, supra, available at https://fcw.com/articles/2020/04/07/afge-osha-
26 complaints-covid19.aspx

27 72 Rim Decl. Exh. P (Lumpkin Decl. ¶¶ 34-35).

28

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1

2

3. Failure to adequately test, trace and quarantine/isolate

3 CDC Guidance

Lompoc Response

4 The CDC instructs prisons “not [to]

USP Lompoc is unable to segregate

cohort confirmed cases with suspected cases because they are not conducting

5 cases or contact cases.”73

testing and simply allowing potentially

sick prisoners to share open dorms with

6

healthy ones. As for FCI Lompoc, in

a belated effort to segregate the infected

7

population, Respondents are moving

inmates back and forth between housing

8

units, transferring them from one place

to another when they are sick, and then

9

either sending them back or transferring

them to yet another place when they are

10

deemed “recovered.” Prisoners are not

re-tested and confirmed to be negative

11

before being returned to housing units

meant to be populated with non-infected

12

prisoners, a practice Dr. Samra

explicitly cites as “problematic.”74

13

Individuals who have had close contact When a sick person is removed from a

14 with a COVID-19 case should be

dorm, the people who were in close

quarantined, ideally in a single cell, for contact with that person are not

15 14 days to determine whether they

quarantined and are instead left in the

develop symptoms.75 The quarantined shared space.77

16 individual should be monitored for

symptoms two times per day for 14

17 days.76

18 For prisoners who test positive for COVID-19, the CDC recommends that
19 they be isolated. If the number of confirmed cases exceeds the number of
20 individual medical isolation spaces in the facility, prisons need to be
21 22 73 See Rim Decl. Exh. B at 27.

While Respondents appear to have attempted to isolate positive prisoners in early April by throwing them into solitary without medical treatment,79 as of May, prisoners who tested positive are not being isolated from other

23 74 Rim Decl. Exh. G (Perales Decl. ¶ 9); Exh. L (Samra Decl. ¶ 16).

24 75 See Rim Decl. Exh. B at 30.

25 76 Id. at 22.

26 77 Rim Decl. Exh. P (Lumpkin Decl. ¶ 27).

27 79 Rim Decl. Exh. G (Perales Decl. ¶ 6)

28

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1 especially mindful of cases who are at higher risk of severe illness from
2 COVID-19, who should ideally not be cohorted with other infected
3 individuals, and if cohorting is unavoidable, should be allocated more
4 space for higher risk individuals within a shared medical isolation space.78
5

prisoners even if they have symptoms.80 Prisoner Charles Cheatham, who could not get in touch with his counsel in time to confirm whether he wanted to be a named Petitioner to this action, indicates that he was sick and tested positive but continued to be housed in a dorm with 100 other prisoners, most of whom now also have COVID-19.

6

7

4. Failure to provide adequate medical monitoring and treatment

8 CDC Guidance

Lompoc Response

9 Facilities “should ensure that

Lompoc is so overwhelmed that

incarcerated individuals receive medical medical care is now “limited or

10 evaluation and treatment at the first sign nonexistent[,]”82 and prisoners with

of COVID-19 symptoms.”81

COVID-19 are not tested or treated

11

until they hit “rock bottom.”83 Even

prisoners who have fever or severe

12

coughing are not being provided

medical treatment unless they have a

13

temperature higher than 100.4

degrees.84 As the Court is by now

14

familiar, Petitioner Torres was suffering

from fever, diarrhea, and body aches

15

but was ignored for five days and

denied medical treatment until he

16

collapsed in his cell.85 Petitioner Fears

has experienced chills, body aches, and

17

a dry cough but has still never been

tested or consulted with a doctor.86

18

Prisoner Mohammed Yusuf was left for

four days while seriously ill until he

19

20 78 Rim Decl. Exh. B at 27, 30.

21 80 Rim Decl. Exh. K (Roberts Decl. ¶ 7).

22 81 Rim Decl. Exh. B at 34.

23 82 Rim Decl. Exh. K (Roberts Decl. ¶ 7).

24 83 Rim Decl. Exh. F (Carror Decl. ¶ 10).

25 84 Rim Decl. Exh. P (Lumpkin Decl. ¶ 27).

26 85 Rim Decl. Exh. F (Carror Decl. ¶ 6).

27 86 Threatt Decl. ¶ 18.

28

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1 2 3
Patients with risk factors for severe 4 illness should be monitored closely
given the risk of progression to severe 5 illness in the second week after
symptom onset.89 Importantly, if the 6 facility is not able to provide such
evaluation and treatment, the CDC’s 7 guidance does not permit abdicating
these functions. Instead, the CDC 8 recommends that a plan should be in
place to safely transfer the prisoner to 9 another facility or local hospital.90 10 11 12 13

collapsed and died in the dormitory.87 Prisoners are even unable to obtain basic treatment such as acetaminophen for fever.88 Petitioner Fears reports that those in his unit are not receiving routine medical treatment, and officials have stopped accepting requests for medical care.91 As a result, people like Petitioner Brown—who requires chemotherapy or surgery to treat his prostate cancer—and others similarly situated have been rendered unable to obtain the care they need. 92 Without adequate medical attention, some prisoners have become gravely ill, including Petitioner Torres, who was not monitored or even given treatment for days after he developed full blown symptoms despite having chronic asthma, a well-known COVID-19 risk factor.93

14 Respondents have also ignored CDC guidance aimed at promoting mental
15 health during a stressful period in prisoner’s lives. Specifically, the CDC also
16 recommended that correctional facilities “consider increasing incarcerated/detained
17 persons’ telephone privileges to promote mental health and reduce exposure from
18

19 87 Rim Decl. Exh. S (Hemmelgarn Decl. ¶ 5).
20 88 Id. ¶ 3 (Prisoner Adam Hemmelgarn has a terrible fever for 3 to 4 days after he 21 tested positive, but the prison gave him no medical care, he was left to suffer 22 through it.)
23 89 Rim Decl. Exh. B at 34.

24 90 See id.

25 91 Threatt Decl. ¶ 18.

26 92 Rim Decl. Exh. I (Wefald Decl. ¶ 6). 27 93 Rim Decl. Exh. F (Carror Decl. ¶¶ 5-7).
28

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1 direct contact with community visitors.”94 Instead of increasing telephone

2 privileges, Lompoc eliminated it.95 Lompoc also prohibited using computers and

3 email. When inmates were sick and scared, they were unable to reach out and speak

4 to a loved one and instead faced the stress of a public health crisis on their own.96

5 This puzzling decision stands in stark contrast to the actions of the California state

6 prison system, which has instead partnered with a telephone provider to offer

7 incarcerated people increased periods of free phone unlimited calls during this

8 trying time.97

9

In short, Respondents disregarded nearly every CDC guideline for controlling

10 and managing COVID-19 at correctional facilities and refused to make necessary

11 changes to protect prisoners. One of the only changes they made – cutting off almost

12 all communication with the outside world – had negative impacts on the prisoners’

13 mental health and therefore was not part of the CDC’s recommendations. This

14 change was not based on science, nor is it a uniform practice instituted in other

15 detention facilities—it is clearly an attempt to insulate Lompoc from discovery of its

16 failures, Respondents’ consistent repudiation of scientific expertise has resulted in

17 1,065 prisoners contracting COVID-19 and 3 people dying.

18

19 20 94 Rim Decl. Exh. B at 24.

21 95 Clair Hymes, No Phone or Email for Nearly 4,000 Inmates at Three Federal Prisons in Effort to Fight Virus CBS News, May 1, 2020,
22 https://www.cbsnews.com/news/coronavirus-no-phone-email-inmates-federal-
23 prisons-california-lompoc-terminal-island/

24 96 Rim Decl. Exh. F (Carror Decl. ¶ 3); Exh. H (Garica Decl. ¶ 3); Exh. J (Fears 25 Decl. ¶ 3).

26 97 California Department of Corrections and Rehabilitation, COVID-19 Response Efforts, https://www.cdcr.ca.gov/covid19/covid-19-response-efforts/#VCMP (last
27 accessed June 1, 2020)

28

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1

3. Respondents defied Attorney General Barr’s direction to

2

“immediately maximize appropriate transfers” to home

3

confinement

4

Respondents also ignored explicit powers granted to them by Congress and

5 directions by Attorney General Barr to reduce the density of the prison population to

6 protect prisoners and the public from COVID-19. On March 26, 2020, prior to the

7 passage of the CARES Act, Attorney General William Barr directed the BOP to

8 prioritize the use of “various statutory authorities to grant home confinement for

9 prisoners seeking transfer in connection with the COVID-19 pandemic” because

10 “for some eligible inmates, home confinement might be more effective in protecting

11 their health.”98 He identified the standard discretionary factors for consideration,

12 including (1) “[t]he age and vulnerability of the prisoner to COVID-19, in

13 accordance with the Centers for Disease Control and Prevention (CDC) guidelines,”

14 and (2) “the security level of the facility,” with “priority given” to prisoners

15 incarcerated “in low and medium security facilities.”99 Many prisoners at Lompoc

16 squarely qualified for consideration because Lompoc is low security and, as a

17 category 3 care facility, houses many medically vulnerable prisoners.

18

The next day, on March 27, 2020, Congress enacted the CARES Act (P.L.

19 116-136). Among other things, the CARES Act authorizes the Director of the BOP

20 to lengthen the maximum amount of time that a prisoner may be placed on home

21 confinement when the Attorney General “finds that emergency conditions will

22 materially affect the functioning” of BOP. In the wake of the reported deaths of

23 several prisoners incarcerated at FCI Oakdale, FCI, Danbury, and FCI Elkton,

24
25 98 Rim Decl. Exh. C (Memorandum For Director of Bureau of Prisons re Prioritization of Home Confinement As Appropriate in Response to COVID-19
26 Pandemic, Office of the Attorney General, Washington, D.C. (Mar. 26, 2020)) at 39.

27 99 Id. 28
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1 Attorney General Barr made quick use of his authority under the CARES Act to

2 enable BOP to start exercising its broadened discretion, issuing a memo on April 3,

3 2020, in which he made the requisite finding that “emergency conditions are

4 materially affecting the functioning of the Bureau.”100 The memo explained that the

5 Bureau of Prisons was “experiencing significant levels of infection at several of our

6 facilities.”101 Noting the Bureau’s “profound obligation to protect the health and

7 safety of all inmates,” Attorney General Barr directed the Bureau to “move with

8 dispatch in using home confinement, where appropriate, to move vulnerable inmates

9 out of these institutions.”102

10

Reflecting the urgency of the situation, Attorney General Barr’s memo

11 directed immediate action. He directed prison officials to “immediately review all

12 inmates who have COVID-19 risk factors, as established by the CDC,” to

13 “immediately maximize appropriate transfers,” and to “begin implementing this

14 directive immediately.”103 The Attorney General made clear that the review was to

15 include “all at-risk inmates, not only those who were previously eligible for

16 transfer.”104 Critically, he noted that, “[g]iven the speed with which this disease has

17 spread through the general public, it is clear that time is of the essence,” and

18 directed the Bureau to “implement this Memorandum as quickly as possible . . . .”105

19

On April 22, the BOP issued a memo purporting to interpret Attorney General

20

21 100 Rim Decl. Exh. A at 8.
22 101 Id.
23
24 102 Id.

25 103 Id.

26 104 Id. at 9 (emphasis added).

27 105 Id. 28
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1 Barr’s guidance, substantially limiting the number and types of people who might

2 qualify for home confinement under the Attorney General’s memos.106 Even though

3 the April 3 Barr memo directed the BOP to “immediately maximize appropriate

4 transfers to home confinement,” at “outbreak prisons,” including “all at-risk

5 inmates, not only those who were previously eligible for transfer,” the BOP created

6 its own criteria that is even more restrictive than the standard criteria the Attorney

7 General had set forth before the passage of the CARES Act. It is no surprise these

8 criteria exclude the vast majority of prisoners from consideration for release. For

9 example, pursuant to the BOP’s guidance from April 22: prisoners must have had no

10 disciplinary infractions of any kind for 12 months; and prisoners who have served

11 50% or more of their sentences or have 18 months or less remaining and have

12 served 25% or more of their sentences receive priority.107 After reports of positive

13 cases continued to explode, on May 8, 2020, BOP amended this guidance to relax a

14 few criteria, but it continues to be far more restrictive than the recommendations

15 proposed by Attorney General Barr.108

16

And despite the explicit statutory authority under the CARES Act to place

17 any prisoner in home confinement, and despite Attorney General Barr’s urgent

18 memorandum directing immediate action to review all inmates who have COVID-

19 19 risk factors and maximize appropriate transfers, Respondents’ use of their home

20 confinement authority has been exceptionally limited. As of April 22, 2020, of the

21 more than 2,600 prisoners at Lompoc, only 59 inmates have been considered—it is

22

23 106 Rim Decl. Exh. D (Memorandum from Correctional Programs Division Acting
24 Assistant Director Andre Matevousian & Reentry Services Division Assistant Director Hugh J. Hurwitz to Chief Executive Officers (Apr. 22, 2020).
25 107 Id. at 43.

26 108 Rim Decl. Exh. E (Memorandum from Correctional Programs Division Acting
27 Assistant Director Andre Matevousian & Reentry Services Division Assistant
28 Director Hugh J. Hurwitz to Chief Executive Officers (May 8, 2020)).

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1 not clear how many, if any have actually been released.109 At the current population

2 levels, Lompoc has proven simply unable to follow the CDC’s recommendations for

3 isolation and physical distancing to prevent the spread of COVID-19. Given the

4 number of prisoners at Lompoc, and the fact that large parts of Lompoc house low

5 to minimum security prisoners who will not present a danger to the public, there is

6 no legitimate reason that so few people are being considered for release to home

7 confinement.110

8

It is clear that without a structured, court-supervised process for

9 individualized consideration of each prisoner’s suitability for release, Respondents

10 will not reduce the population density at Lompoc, and COVID-19 will continue to

11 spread until each and every inmate and staff member has contracted the virus.

12

D. Lompoc Is Incapable of Providing Adequate Medical Care for

13

COVID-19 Patients, Posing an Unconstitutional Threat Both to the

14

Incarcerated and to the Local Community.

15

Providing adequate medical care in the face of an outbreak of this size would

16 be challenging for any community. For a prison like Lompoc, it is an impossibility.

17 The medical facilities at Lompoc consist of only “a small medical bay capable of

18 caring for a few patients.”111 BOP claims that Lompoc’s medical capabilities have

19

20 109 Rim Decl. Exh. Q (Talking Points for Inmates Asking About Early Releases During COVID-19 as of 4/20/20).
21

22

110 While not at Lompoc, it is troubling that wealthy and politically connected prisoners like Paul Manafort, who do not meet BOP-enhanced time-served

23 thresholds for consideration are still able to obtain release, when inmates of similar

24

age, also with underlying conditions, on even shorter sentences for non-violent crime are abandoned to die.

25 111 Taylor Hayden, Inmates and Families Panic as Lompoc Prison Goes Into
26 Lockdown, SANTA BARBARA INDEPENDENT, Apr. 22, 2020,

27 https://www.independent.com/2020/04/22/inmates-and-families-panic-as-lompocprison-goes-into-lockdown/
28

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1 been supplemented with a newly-constructed Hospital Care Unit (“HCU”). In

2 reality, the 20-bed HCU—yet another converted warehouse—has been little more

3 than an exercise in public relations: the HCU lacks any ventilators, and is “not

4 properly equipped to handle serious COVID-19 cases.”112 BOP has not yet actually

5 staffed the HCU with doctors and nurses, and local health officials have remarked

6 that as of May 8, it was “unclear whether the [HCU] is in fact operational.”113 In lieu

7 of adequate care —rendered impossible due to a serious lack of medical resources—

8 prison authorities at Lompoc have adopted a chilling indifference towards those

9 affected by COVID-19.

10

The story of Mr. Torres is not an isolated incident but part of a larger pattern

11 of deliberate indifference to that shocks the conscience. As discussed above, due to

12 limited staffing and resources, medical care at Lompoc is now “limited or

13 nonexistent[,]”114 and prisoners with COVID-19 are not tested or treated until they

14 hit “rock bottom.”115 Even when they test positive, they are not immediately isolated

15 from other prisoners, sometimes being left in dormitories housing approximately

16 100 people for as long as 14 days.116

17

When Respondents actually identify COVID-19 patients, the treatment they

18 provide resembles prison discipline more than medical care. On March 27 or 28,

19 2020, Petitioner Reed began exhibiting symptoms of COVID-19.117 Respondents

20

21 112 Taylor Hayden, Lompoc Prison Explodes with Active COVID-19 Cases, SANTA BARBARA INDEPENDENT, May 13, 2020,
22 https://www.independent.com/2020/05/13/lompoc-prison-explodes-with-active-
23 covid-19-cases/.

24 113 Id.

25 114 Rim Decl. Exh. K (Roberts Decl. ¶ 7).
26 115 Rim Decl. Exh. F (Carror Decl. ¶ 10). 116 Rim Decl. Exh. K (Roberts Decl. ¶¶ 7-8).
27 117 Rim Decl. Exh. G (Perales Decl. ¶ 6).
28

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1 waited until March 30, 2020, to test him, and immediately placed him in solitary

2 confinement while they awaited results.118 On March 31, 2020, Petitioner Reed

3 received a temperature and symptom check from a doctor.119 After that,

4 Respondents left him to languish in solitary confinement, and did not allow him to

5 see a doctor again until April 7, 2020.120 Respondents’ approach of throwing people

6 like Mr. Reed into solitary confinement when they display COVID-19 symptoms

7 has incentivized prisoners at Lompoc to hide symptoms, even when they feel sick.121

8

As Dr. Samra notes, “the allegations” “show[] that virtually no effort is being

9 made at Lompoc to monitor or treat prisoners, with staff waiting until the last

10 minute to intervene,” and that also has significant ripple effects on even regular

11 medical care for prisoners with conditions unrelated to COVID-19.122 This is

12 precisely what is happening inside Lompoc, as prison staff have stopped accepting

13 requests for medical care from prisoners since the outbreak started.123 As a result,

14 Petitioner Brown—who requires chemotherapy or surgery to treat his prostate

15 cancer—and others similarly situated have been rendered unable to obtain the care

16 they need to survive.124

17

18

19

20

21

22 118 Id.
23 119 Id.
24 120 Id. 25 121 Id. ¶ 11. 26 122 Rim Decl. Exh. L (Samra Decl. ¶ 18).
27 123 Rim Decl. Exh. J (Fears Decl. ¶ 7); Exh. P (Lumpkin Decl. ¶¶ 44-46).

28 124 Rim Decl. Exh. I (Wefald Decl. ¶ 6).

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1 III. ARGUMENT

2

A. The Court Should Temporarily Enlarge Petitioners’ Custody

3

Pursuant to a Supervised, Individualized Inquiry and Require

4

Lompoc to Provide Adequate Medical Care to COVID Positive

5

Patients.

6

A Temporary Restraining Order (“TRO”) may be issued upon a showing “that

7 immediate and irreparable injury, loss, or damage will result to the movant before

8 the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The

9 analysis for a TRO and a preliminary injunction is the same. See Frontline Med.

10 Assoc., Inc. v. Coventry Healthcare Workers Compensation, Inc., 620 F. Supp. 2d

11 1109, 1110 (C.D. Cal. 2009) (“The standard for a temporary restraining order [] and

12 a preliminary injunction are the same.”).

13

“A plaintiff seeking a preliminary injunction must establish that he is likely to

14 succeed on the merits, that he is likely to suffer irreparable harm in the absence of

15 preliminary relief, that the balance of equities tips in his favor, and that an injunction

16 is in the public interest.” Winter, 555 U.S. at 20. The Ninth Circuit employs

17 a “sliding scale” approach to Winter’s four-element test. Alliance for the Wild

18 Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011). Under this approach,

19 a preliminary injunction—and, thus, a temporary restraining order—may issue if the

20 plaintiff raises at least “serious questions going to the merits” and demonstrates that

21 “the balance of hardship tips sharply in the plaintiff’s favor,” but only so long as the

22 plaintiff also satisfies the other Winter factors. Id. A stronger showing of one

23 element may offset a weaker showing of another. See id. (“a stronger showing of

24 one element may offset a weaker showing of another.”). A mandatory injunction can

25 be issued only when the facts and law clearly favor the moving party. Committee of

26 Cen. Am. Refugees v. INS, 795 F.2d 1434 (9th Cir. 1986); Roman v. Wolf, No. 20-

27 cv-00768, 2020 WL 1952656, at *12 (C.D. Cal. Apr. 23, 2020) (finding that

28 plaintiffs had demonstrated “significantly more than a mere likelihood of success on

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1 the merits” of their claim that conditions of confinement at immigration detention

2 center took away their ability to socially distance and remain safe from COVID-19).

3

A preliminary injunction is customarily granted on the basis of evidence that

4 is less complete than what is presented at a trial on the merits. Univ. of Texas v.

5 Camenisch, 451 U.S. 390, 395 (1981). The Court may consider hearsay and

6 otherwise inadmissible evidence when considering whether to issue a preliminary

7 injunction. Republic of the Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir.

8 1988). The Court can also take judicial notice of publicly accessible websites. See

9 King v. City of L.A., 885 F.3d 548, 555 (9th Cir. 2018).

10

Petitioners easily meet the standard for a TRO in this case. Petitioners have

11 identified compelling evidence that Respondents have recklessly failed to act to

12 control the spread of COVID-19 throughout Lompoc, resulting in one of the “worst

13 coronavirus hotspots in the nation.” United States v. Connell, -- F.Supp.3d. --, 2020

14 WL 2315858, at *6 (N.D. Cal. May 8, 2020) (calling the situation “dire”); United

15 States v. Pippin, No. 16-cr-0266, 2020 WL 2602140, at * 2 (W.D. Washington May

16 20, 2020) (“there is a catastrophic COVID-19 outbreak” at Lompoc). United States

17 v. Gorai, No. 2:18-cr-220, 2020 WL 1975372, at *2 (D. Nev. Apr. 24, 2020)

18 (“[C]ourts throughout the country have noted the obvious shortcomings in the

19 BOP’s COVID-19 Action Plan”). Respondents’ shocking failure to follow the

20 recommendations of the CDC or to reduce the population of overcrowded prisons,

21 as Congress and the Attorney General authorized them to do, has created substantial

22 risks to the health and lives of its prisoner population, most of whom meet the

23 established criteria for medical vulnerability to COVID-19. Immediate action is

24 needed to prevent additional deaths. See Connell, 2020 WL 2315858 at *6 (noting

25 that “California’s two United States Senators have repeatedly called on the BOP to

26 take additional emergency measures to slow the spread of the virus at the facility.”)

27 Lompoc must decrease the number of persons held at Lompoc to allow for greater

28 social distancing and to improve the medical care and monitoring for those who

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1 have tested positive but are not released.

2

B. Petitioners Are Likely To Succeed on the Merits of Their Eighth

3

Amendment Claims

4

The facts and the law clearly favor Petitioners on their claim that

5 Respondents’ failure to protect Lompoc prisoners from conditions of confinement

6 that exposed them to a serious, life-threatening illness violates the Eighth

7 Amendment. The Eighth Amendment protects those in detention against conditions

8 of confinement that are “very likely to cause serious illness and needless suffering.”

9 Helling v. McKinney, 509 U.S. 25, 33 (1993) (“It would be odd to deny an

10 injunction to inmates who plainly proved an unsafe, life threatening condition in

11 their prison on the ground that nothing yet had happened to them.”) The law is clear

12 that when prison authorities “strip [prisoners] of virtually every means of self-

13 protection and foreclose[] their access to outside aid, [they] are not free to let the

14 state of nature take its course.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). The

15 Government cannot be “deliberately indifferent to the exposure of [prisoners] to a

16 serious communicable disease.” Helling, 509 U.S. at 33.

17

Prison officials violate a prisoner’s Eighth Amendment right to humane

18 conditions of confinement when two conditions are met. First, under the “objective”

19 component of the analysis, “the alleged deprivation must be, ‘objectively,’

20 sufficiently serious.” Farmer, 511 U.S. at 825. Second, under the “subjective”

21 component, prison officials must have acted with a “sufficiently culpable state of

22 mind,” namely, “‘deliberate indifference’ to inmate health or safety.” Id. at 834.

23

1. The Conditions at Lompoc, Combined with the Risks Posed

24

by COVID-19, Create a Serious Medical Need

25

To establish the “objective” element of an Eighth Amendment violation

26 “based on a failure to prevent harm, the inmate must show that he is incarcerated

27 under conditions posing a substantial risk of serious harm.” See Farmer, 511 U.S. at

28 834. This standard is easily met here. Courts have routinely found that exposure to

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1 disease or health issues constitutes a serious harm. See, e.g., Helling, 509 U.S. at 33

2 (finding that the reach of the Eighth Amendment includes “exposure of inmates to a

3 serious, communicable disease”); Jeffries v. Block, 940 F. Supp. 1509, 1514 (C.D.

4 Cal. 1996) (agreeing that “tuberculosis is a serious contagious disease, which

5 presents a serious risk to inmate health”); Jolly v. Coughlin, 76 F.3d 468, 477 (2d

6 Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect

7 [forcibly confined] inmates from infectious disease.”).

8

Simply put, the risks of serious harm due to the COVID-19 outbreak are

9 undeniable. The disease is highly contagious and spreads rapidly in close settings—

10 it has already killed more than 100,000 people in the United States and it may cause

11 long-term organ damage even in people who present with minimal or no symptoms.

12 Lompoc itself is home to one of the worst outbreaks at a federal prison in the United

13 States. According to BOP’s own numbers, nearly 100% of inmates at FCI Lompoc

14 have tested positive for COVID-19 in the past two months, and even without mass

15 testing, USP Lompoc has still reported 165 positive cases. Three prisoners have

16 already died, and presumably many more have been hospitalized. The structure of

17 the prison itself heightens the risk of transmission, since prisoners are incapable of

18 social distancing with many prisoners living in large dorms of 50 or more people,

19 and even those prisoners in cells share bathrooms with large numbers of inmates.

20

Recognizing both COVID-19’s ferocious attack on the human body and its

21 extreme infectiousness, which is exacerbated in congregate settings like prisons,

22 courts across the country have found that COVID-19 specifically presents a

23 substantial risk of serious harm to prisoners. See, e.g., Martinez-Brooks v. Easter,

24 No. 3:20-cv-00569, 2020 WL 2405350, at *20–21 (D. Conn. May 12, 2020);

25 Fraihat v. U.S. Immigration and Customs Enforcement, --F.Supp.--, 2020 WL

26 1932570, at *23 (C.D. Cal. April 20, 2020); Basank v. Decker, No. 20-cv-2518,

27 2020 WL 1481503, at *3, 5 (S.D.N.Y. Mar. 26, 2020) (citing United States v.

28 Stephens, No. 15-cr-95 (AJN), No. 15-cr-95 (AJN), 2020 WL 1295155, at *2

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1 (S.D.N.Y. Mar. 19, 2020) and United States v. Garlock, No. 18-cr-418 (VC), No.

2 18-cr-00418-VC-1, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020)); Cameron

3 v. Bouchard, ---F.Supp.3d ---, 2020 WL 2569868, *21 (E.D. Mich. May. 21, 2020);

4 cf Connell, 2020 WL 2315858 (finding that “the critical situation at Lompoc,

5 combined with Connell’s compromised health generally, constitute ‘extraordinary

6 and compelling’ reasons justifying his immediate release.”); Pippin, 2020 WL

7 2602140, at *2 (finding that “catastrophic COVID-19 outbreak” at Lompoc placed

8 medically vulnerable prisoner’s “life in jeopardy”). As in each of these cases, there

9 can be no reasonable dispute that a substantial risk of serious harm is present

10 here.125

11

2. Respondents Acted With Deliberate Indifference to the

12

Health and Safety of COVID-19 Negative Prisoners.

13

Petitioners can also show that the facts and law clearly favor a finding that

14

15 125 In dicta in an unpublished opinion involving a pre-trial detainee, a three-judge

16

panel of the Ninth Circuit recently stated that to satisfy the “objective” test, there is an additional requirement that a convicted prisoner show that the condition of

17 confinement must cause “suffering inconsistent with contemporary standards of

18

decency.” Smith v. Washington, 781 Fed. Appx. 595, 598 (9th Cir. 2019). Other courts in the Ninth Circuit fold this notion directly into the concept of “serious

19 harm.” See e.g., Perez v. Cox, 788 Fed. Appx. 438, 442 (9th Cir. 2019); Hill v.

20

Dexter, No. 09-cv-778, 2010 WL 2631661, at *3 (C.D. Cal. March 2, 2010). Even if a separate such showing were required, Petitioners satisfy that here. In

21 unprecedented actions taken in modern times, nearly every state in the United States

22 and countries across the world shut down their economies to all but essential businesses to prevent the spread of COVID-19. Hospital administrators have warned

23 of an impending mental health crisis in even veteran physicians working with

24 COVID-19 patients from witnessing the devastating impact of the virus on patients. See e.g. Wilber, Delquinton, Hospitals Prepare for Wave of Mental Health

25 Disorders Among Their Workers, LOS ANGELES TIMES (May 6, 2020), available at

26 https://www.latimes.com/politics/story/2020-05-06/hospitals-prepare-for-wave-ofmental-health-disorders-among-their-workers. Clearly, failing to follow basic

27 guidance provided by the CDC to prevent the suffering caused by exposure to

28 COVID-19 is inconsistent with contemporary standards of decency.

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1 Respondents have been deliberately indifferent to the health and safety of the

2 prisoners in their care. Sentenced inmates bringing claims under the Eighth

3 Amendment can show deliberate indifference through evidence that the respondent

4 was “aware of the facts from which the inference could be drawn that a substantial

5 risk of serious harm exists,” that the Respondent actually “dr[ew] the inference” and

6 “disregard[ed] that risk by failing to take reasonable measures to abate it.” Farmer,

7 511 U.S. at 837.

8

It is undeniable that Respondent Warden Milusnic and Respondent Carvajal

9 knew of the substantial risk of serious harm posed by a COVID-19 outbreak at

10 Lompoc. In mid-March, cities and states around the country took the extraordinary

11 measure of completely shutting down (with the exception of essential services) in

12 order to protect their citizens from the ghastly impact of COVID-19. On April 3—

13 more than a month and a half ago—Attorney General Barr issued an urgent memo to

14 the Bureau of Prisons regarding COVID-19, noting the “significant levels of

15 infection at several of our facilities” and the “dangers that COVID-19 poses to our

16 vulnerable inmates.”126 And, “given the pervasive daily media coverage of the

17 pandemic, the seriousness of the threat posed by COVID-19—and the particular

18 vulnerability of elderly individuals as well as those with certain preexisting medical

19 conditions—are so well known that it would be implausible to suggest that prison

20 officials are unaware of this risk.” Martinez-Brooks, 2020 WL 2405350, at *21

21 (citing and quoting Farmer, 511 U.S. at 842 (“[A] fact finder may conclude that a

22 prison official knew of a substantial risk from the very fact that the risk was

23 obvious.”)).

24

It is equally clear that Respondents did not take reasonable steps to protect

25 prisoners at Lompoc from that harm because they flouted – and continue to flout –

26

27 126 Rim Decl. Exh. A at 8.

28

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1 guidance by Attorney-General Barr and the guidance provided by the CDC on the

2 key steps correctional facilities must take to address COVID-19.127

3

In particular, while the CDC stressed that social distancing of at least six feet

4 “is a cornerstone of reducing transmission of respiratory illnesses,”128 Respondents

5 steadfastly refuse to implement measures that would allow for appropriate social

6 distancing. Lompoc was at more than 130% capacity and overcrowded when the

7 pandemic began. The majority of the prisoners live and sleep in a perpetual large

8 gathering – in 70 to 160-person open-plan dormitories with bunk beds separated by

9 four feet or less, with shared common bathrooms with no more than a few toilets

10 and showers. A smaller number of prisoners live in small cells, close enough to

11 touch their cellmate. It is impossible to avoid personal contact in the crowded

12 hallways. “[A]t a time when public health officials are counseling strict adherence to

13 social distancing practice, most inmates at [Lompoc] live in close contact with [at

14 least 50] other inmates, in a facility with a serious, active COVID-19 outbreak.” See

15 Martinez-Brooks, 2020 WL 2405350, at *21 (discussing in context of FCI

16 Danbury); see also Pippin, 2020 WL 2602140, at *2 (noting that prisoner is being

17 housed at FCI Lompoc “in a dormitory with 80 other men who are spaced only two

18 to three feet from one another, making effective social distancing out of the

19 question.”) (internal citations and quotations omitted).

20

Respondents may contend that they opened isolation dormitories and

21

22 127 Justice Sotamayor has suggested that to provide constitutionally adequate care of prisoners, prison officials may need to take steps beyond those prescribed by the
23 CDC. See Valentine, 590 U.S. ___ (2020), 2020 WL 249751, at *2 n.2 (May 14,
24 2020) (Mem) (Sotomayor, J.).

25 128 See also Social Distancing, Centers for Disease Control and Prevention, April
26 15, 2020, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/socialdistancing.html (“Limiting face-to-face contact with others is the best way to reduce
27 the spread of [COVID-19],” including staying at least 6 feet from other people and 28 avoiding group gatherings.).

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1 warehouses as makeshift living spaces to allow for social distancing. But these

2 moves were window dressing—undertaken solely so that officials could say they did

3 something, without actually achieving a change in the conditions that spread the

4 virus. These so-called “isolation” and “quarantine” measures were meaningless

5 without actually reducing the prison population. Worse, the makeshift housing

6 spaces were unsanitary, infested with mold, and did nothing to prevent nearly 100%

7 of FCI Lompoc prisoners from becoming infected. At this point, so many people

8 are infected that Lompoc has given up on removing symptomatic prisoners who

9 have tested positive from open dorms.129

10

Respondents compounded the problems caused by overcrowding by refusing

11 to heed the CDC’s recommendations for contract tracing, quarantining, and isolating

12 confirmed and suspected cases of COVID-19. The CDC recommends that all

13 individuals who have had close contact with a COVID-19 case be quarantined for

14 14 days, ideally in a single cell, and anyone with a confirmed or suspected case

15 should be isolated to prevent contact with others.130 Due to Respondents’

16 inadequate testing policies, their isolation strategy has been rendered completely

17 ineffectual. Over a month since its outbreak initially started, Lompoc still does not

18 have the capacity to fully test its entire population.131 Instead, Respondents do not

19 test prisoners at USP Lompoc until they display symptoms,132 and sometimes not

20 until several days after that, when their health has already deteriorated

21

22 129 Rim Decl. Exh. K (Roberts Decl. ¶¶ 7-8).

23 130 Rim Decl. Exh. B at 14-15.
24 131 Taylor Hadsen, Lompoc Prison Explodes with Active COVID-19 Cases, SANTA
25 BARBARA INDEPENDENT, May 13, 2020,
26 https://www.independent.com/2020/05/13/lompoc-prison-explodes-with-activecovid-19-cases/.
27 132 Rim Decl. Exh. G (Perales Decl. ¶ 6).
28

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1 precipitously.133 In addition, prisoners are not re-tested and confirmed to be negative

2 before being returned to housing units meant to be populated with non-infected

3 prisoners, a practice Dr. Samra explicitly cites as “problematic.”134

4

Infected individuals can spread COVID-19 even when they are completely

5 asymptomatic.135 As a result, the lack of asymptomatic testing and re-entry testing

6 means that Lompoc is likely allowing infected prisoners to remain with healthy

7 populations and spread the virus, and then allowing prisoners who are not fully

8 recovered but asymptomatic to return to those populations and spread the virus

9 again. In a belated effort to segregate Lompoc’s infected population from its healthy

10 and recovered population, Respondents are moving inmates back and forth between

11 housing units, transferring them from one place to another when they are sick, and

12 then either sending them back or transferring them to yet another place when they

13 are deemed “recovered.” This heavy-handed isolation strategy has simply resulted

14 in a large numbers of prisoners moving from minimum and low security dormitories

15 to temporary housing units and prison cells—it has not done anything to prevent the

16 spread of the virus.

17

Given the close contact between healthy and sick prisoners at Lompoc, it is

18 especially imperative that prison officials clean and disinfect living spaces, common

19 spaces and bathrooms frequently and make appropriate use of PPE to reduce the

20 spread of COVID-19. But Respondents also defied CDC guidelines with respect to

21 sanitation and PPE. Respondents continue to provide prisoners with insufficient

22 quantities of diluted disinfectants and a few rags that make it impossible to

23 adequately rid living spaces of the virus.136 CDC guidance also requires confirmed

24 133 Rim Decl. Exh. F (Carror Decl. ¶ 8).
25 134 Rim Decl. Exh. G (Perales Decl. ¶ 9); Exh. L (Samra Decl. ¶ 16).
26 135 Rim Decl. Exh. L (Samra Decl. ¶ 16).
27 136 Threatt Decl. ¶ 18; Rim Decl. Exh. P (Lumpkin Decl. ¶ 38.)

28

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1 or suspected COVID-19 cases in congregate living spaces to wear face masks at all

2 times and instructs that masks should be changed at least daily. To date, prisoners

3 have been issued only three cloth masks total, and they do not even have enough

4 soap to launder them.137 That means that prisoners must reuse dirty masks, which is

5 problematic since the virus can last on cloth masks for two days.138 Significantly,

6 guards were not provided with PPE until late in the outbreak and even now, not all

7 guards wear masks.139 The failure to ensure that all guards wear their masks puts

8 both guard and prisoners at heightened risk of exposure.

9

Finally, Respondents’ failure to transfer medically vulnerable prisoners from

10 Lompoc to home confinement in any meaningful numbers evidences deliberate

11 indifference. On April 3, Attorney General Barr explicitly directed Respondents to

12 “immediately review all inmates who have COVID-19 risk factors, as established by

13 the CDC,” to “immediately maximize appropriate transfers.”140 Attorney General

14 Barr further directed that these actions be taken “as quickly as possible,”

15 emphasizing that time is of the essence. But Respondents failed to follow these

16 directions. They have only considered 59 of more than 2,600 prisoners for home

17 confinement.141 Even medically vulnerable prisoners with established, stable plans

18

19

20 137 Rim Decl. Exh. P (Lumpkin Decl. ¶¶ 34-35.)

21 138 Healthline, How Long Does the Coronavirus Live on Different Surfaces?,
22 https://www.healthline.com/health/how-long-does-coronavirus-last-onsurfaces#shoes-and-clothing (last accessed June 1, 2020).
23 139 Russell, supra, available at https://fcw.com/articles/2020/04/07/afge-osha-
24 complaints-covid19.aspx; Rim Decl. Exh. P (Lumpkin Decl. ¶¶ 34-35.)

25 140 Rim Decl. Exh. A at 8.
26 141 Rim Decl. Exh. Q (Talking Points for Inmates Asking About Early Releases
27 During COVID-19 as of 4/20/20).

28

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1 for home confinement, have not been able to secure release.142 As one judge

2 explained, paltry grants of home confinement demonstrate that Respondents are

3 “thumbing their nose at their authority to authorize home confinement.” Wilson v.

4 Williams, 2020 WL 2542131, at *3-4 (N.D. Ohio May 19, 2020) (discussing in

5 context of FCI Elkton). It is clear that Respondents are simply ignoring the tools in

6 their possession that, if utilized, would protect the released medically vulnerable

7 prisoners, reduce the density of the prisoner population, and allow for better

8 physical distancing and other preventative measures, as well as better medical care

9 and treatment for the inmates that remain.143

10

Respondents’ wholesale refusal and failure to follow accepted medical

11 protocoland legal guidance, particularly in the face of positive cases, amounts to

12 deliberate indifference under well-settled law. See, e.g., Hernandez v. County of

13 Monterey, 110 F. Supp. 3d 929, 943 (N.D. Cal. 2015) (stating that “known

14 noncompliance with generally accepted guidelines for inmate health strongly

15 indicates deliberate indifference to a substantial risk of serious harm”); Cameron,

16 2020 WL 1929876, at *2, modified on other grounds on motion for reconsideration,

17 2020 WL 1952836, (Apr. 23, 2020). (preliminarily finding deliberate indifference in

18 violation of the Eighth Amendment when jail “has not imposed even the most basic

19 safety measures recommended by health experts, the Centers for Disease Control

20 and Prevention, and Michigan’s Governor to reduce the spread of COVID-19 in

21 detention facilities”). Indeed, a failure by a prison to implement safety and hygiene

22

23 142 Rim Decl. Rim Decl. Exh. F (Carror Decl.¶ 12).; Exh. I (Wefald Decl. ¶ 8).

24 143 Significantly, the deleterious health impacts of Respondents’ failures reach
25 beyond just the virus itself because, since the outbreak began, medically vulnerable
26 prisoners have experienced significant delays in receiving treatment for any conditions that are not COVID-19. See also Connell, 2020 WL 2315858 at *6
27 (“Connell is unlikely to be able to get the medical care he needs at Lompoc in the 28 midst of a pandemic.”)

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1 procedures in the face of an infectious disease outbreak is a classic example of

2 deliberate indifference violating the Eighth Amendment. See, e.g., Feliciano v.

3 Gonzales, 13 F. Supp. 2d 151, 208–09 (D.P.R. 1998) (finding that the defendant’s

4 “inability … to properly isolate cases of active tuberculosis,” the “insufficient

5 medical dormitory beds,” the failure to “fully screen incoming inmates,” and the

6 failure to “provide for a sick call system that ensures access to care and that is

7 capable of effectively handling emergencies” constituted deliberate indifference);

8 Martinez-Brooks, 2020 WL 2405350, at *22 (finding likelihood of success shown

9 on deliberate indifference claim where Warden failed to transfer medically

10 vulnerable prisoners from FCI Danbury to home confinement in any meaningful

11 numbers during COVID-19 crisis).

12

3. Respondents Acted With Deliberate Indifference to the

13

Medical Needs of COVID-19 Positive Prisoners.

14

It is also clear that Respondents have acted with deliberate indifference to the

15 medical needs of Lompoc prisoners who tested positive for COVID-19. Deliberate

16 indifference to medical needs may be shown when prison officials deny, delay or

17 internationally interfere with medical treatment or it may be shown by the way in

18 which prison physicians provide medical care.” Jett v. Penner, 439 F.3d 1091, 1096

19 (9th Cir. 2006).

20

Respondents here have denied, delayed and provided constitutionally

21 inadequate care. The practice of denying prisoners medical treatment unless they

22 have a temperature higher than 100.4 degrees144 is highly problematic—one study

23 has indicated that 70% of patients sick enough to be admitted to the hospital due to

24 COVID-19 did not even have a fever.145 Nor are Petitioners being regularly

25

26 144 Rim Decl. Exh. P (Lumpkin Decl. ¶ 27).

27 145 Ariana Enjung Cha, In New York’s largest Hospital System, Many Coronavirus 28 Patients on Ventilators Didn’t Make It, THE WASHINGTON POST (Apr. 22, 2020),

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1 monitored and treated. Petitioner Torres had to collapse in his cell before he was

2 taken to the hospital.146 Petitioner Fears has experienced chills, body aches, and a

3 dry cough but has still never been tested or consulted with a doctor.147 Petitioner

4 Fears indicates that staff are so overwhelmed that they have stopped accepting

5 requests for medical care since the outbreak started.148 As of May 21, Respondents

6 have stopped even checking temperatures.149 By failing to also monitor more

7 subjective symptoms, Respondents are missing a critical opportunity to identify

8 patients who may be deteriorating. Respondents are not allowing regular access to

9 the commissary to allow prisoners to buy over-the-counter medications such as

10 acetaminophen to reduce fever.150 It is unacceptable that prisoners at Lompoc are

11 unable to obtain medical care until they have hit “rock bottom”—or in the case of

12 Petitioner Torres, literally on the floor dying.151

13

Respondents’ failure to follow CDC guidance on treatments and utter

14 abdication in providing requested medical care for COVID-19 symptoms is

15 evidence of deliberate indifference. See, e.g. Banks v. Booth, No. 20-cv-00849, at

16 *10, 21 (D.D.C. April 20, 2020) (fact that “inmates who have requested medical aid

17 for COVID-19 symptoms report long waits for medical care, testing or separation

18
19 https://www.washingtonpost.com/health/2020/04/22/coronavirus-ventilatorssurvival/
20 146 Rim Decl. Exh. F (Carror Decl. ¶ 6).
21
22 147 Threatt Decl. ¶ 18.

23 148 Rim Decl. J (Fears Decl. ¶ 7).

24 149 Threatt Decl. ¶ 18.

25 150 Center for Disease Control and Prevention, What to Do If You are Sick,
26 https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/steps-when-sick.html (last accessed June 1, 2020); Rim Decl. Exh. K (Roberts Decl. ¶ 9).
27

28 151 Rim Decl. Exh. F (Carror Decl. ¶¶ 6, 10).

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1 from the general population” is evidence of deliberate indifference). Significantly,

2 Respondents’ level of medical care falls far below other prisons faced with the

3 challenges of COVID-19. Other prisons are providing multiple vital-sign

4 assessments by medical staff each day, in addition to temperature checks, are

5 monitoring subjective symptoms, and are providing medication to control fever. See,

6 e.g. Camacho Lopez v. Lowe, No. 3:20-cv-563, 2020 WL 1689874, at *7 (M.D. Pa.

7 Apr. 7, 2020) (finding no deliberate indifference because prisoner was placed in

8 medical isolation as soon as he tested positive, was given at least three vital-sign

9 assessments by medical staff daily, in addition to twice-daily temperature checks,

10 medication as needed to control his fever, and a prescription for a multivitamin and

11 Gatorade for nourishment and hydration); Derron B. v. Tsoukaris, No. 20-cv-3679 ,

12 2020 WL 2079300, at *11 (D.N.J. Apr. 30, 2020) (finding no deliberate indifference

13 where prisoners are being seen on a daily basis during which their subjective

14 complaints are recorded and their vital signs, along with other relevant testing such

15 as temperature). Dr. Samra, who works in correctional institutions, and is familiar

16 with appropriate standards in such settings, notes that Lompoc’s failure to provide

17 monitoring, treat those who display symptoms, and provide access to physicians

18 does not provide the minimum level of acceptable care.152

19

Dr. Samra further explains that in the context of a very limited healthcare

20 system at a prison facility (and possible staffing shortages due to COVID-19

21 outbreak among staff), “the inability to swiftly identify those prisoners in need of

22 substantial and proactive medical intervention and either begin an appropriate

23 treatment regimen or transport them to a civilian hospital will only cause needless

24 pain and deaths.”153 Given the enormous number of medically vulnerable prisoners

25 who have tested positive at Lompoc, it is hard to imagine how Lompoc could

26 152 Rim Decl. Exh. L (Samra Decl. ¶ 18.)
27

28 153 Rim Decl. Exh. L (Samra Decl. ¶ 19.)

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1 provide constitutionally adequate medical care at this time.

2

Lompoc is incapable of providing constitutionally adequate care to the

3 number of prisoners currently in its care. It is imperative that the prisoners be

4 evaluated for home confinement pursuant to a structured, court-supervised process

5 for making individualized determinations for release as soon as possible. Prisoners

6 who are not dangerous and have appropriate release plans must be released to home

7 confinement to address this constitutional catastrophe.

8

For those prisoners who will remain at Lompoc, and who have or will test

9 positive, the Court should grant injunctive relief that requires Respondents to follow

10 CDC guidelines and provide essential medical treatment and monitoring. Prisoners

11 should be monitored by doctors or medical staff about their symptoms and prognosis

12 so that they can be aware of any change in their health that marks a potential

13 decline. Moreover, once the population density at Lompoc has been reduced,

14 Respondents can and must begin treating underlying conditions once again, which,

15 of course, is recommended by the CDC.154

16

4. Petitioners Are Not Required To Exhaust Administrative

17

Remedies Here.

18

Respondents have not yet raised an affirmative defense of failure to exhaust

19 administrative remedies, but based on the arguments BOP has made in other similar

20 cases, Respondents expect that the BOP will argue that Petitioners are unlikely to

21 succeed on their claims for relief because they failed to exhaust administrative

22 remedies.

23

a. Exhaustion of administrative remedies for the § 2241

24

claim should be waived

25

26 154 Center for Disease Control and Prevention, Groups at Higher Risk,
27 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-
28 higher-risk.html (last accessed June 1, 2020)

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1

In the Ninth Circuit, “the exhaustion requirement is prudential, rather than

2 jurisdictional, for habeas claims.” Hernandez v. Sessions, 872 F.3d 976, 988 (9th

3 Cir. 2017). There are two potential administrative processes that BOP may argue

4 must first be exhausted: (1) home detention consideration under the CARES Act,

5 and (2) requests for compassionate release under the First Step Act. Both of these

6 arguments lack merit.

7

As an initial matter, with respect to release under the CARES Act, the

8 exhaustion require has already been met because there is no administrative process

9 for CARES Act release to home confinement. BOP has told prisoners, “[I]nmates do

10 not need to apply or request to be considered for CARES act” release to home

11 confinement.155 There is no way for prisoners to make a case to BOP as to why they

12 should be considered for CARES Act release, including no way for them to present

13 a release plan.

14

With respect to compassionate release, while typically BOP has 30 days to

15 respond to such applications, the Ninth Circuit has held that the exhaustion

16 requirement does not apply when the petitioner is likely to suffer an irreparable

17 injury without immediate judicial relief, where administrative remedies are

18 inadequate or not efficacious or where pursuit of the administrative remedy would

19 be futile. Id. The Ninth Circuit’s principles regarding equitable waiver of exhaustion

20 requirements have been specifically applied by courts to find that exhaustion of

21 remedies was waived at the Lompoc Prison Complex due to COVID-19. As one

22 court put it in discussing Lompoc:

23

[t]he BOP is overwhelmed by the unique challenges

COVID-19 presents within correctional institutions and

24

may simply not have the capacity to process

compassionate relief requests at the moment. The

25

extraordinary and unprecedented circumstances faced by

prisons in light of the COVID-19 pandemic have rendered

26

27 155 See Rim Decl. Exh. Q (Talking Points for Inmates Asking About Early Releases 28 During Covid-19 as of 4/20/20).

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1

administrative exhaustion futile.

2 United States v. Connell, 2020 WL 2315858, at *5(internal citations omitted); In

3 fact, the Acting Warden at Lompoc even ignored a direct request from a court to

4 consider and rule on a request for compassionate release. Pippin, 2020 WL

5 2602140, at *2 (Court “implored” FCI-Lompoc to respond to a compassionate

6 release request, and even though FCI-Lompoc was sent the Court’s order in an

7 email, FCI-Lompoc never responded to the compassionate release request).

8 Another court pointed out that Lompoc has only an acting warden and that repeated

9 attempts to get a response on a request for compassionate release, went unanswered.

10 Gorai, 2020 WL 1975372, at *2 (“In light of the rapidly developing circumstances

11 surrounding the COVID-19 pandemic, the court finds no reason to delay its

12 determination”). Moreover, the Connell court found that these lengthy delays and

13 refusals to consider requests for compassionate release irreparably harm prisoners:

14 “given the speed at which COVID-19 is spreading within correctional institutions,

15 each day of delay puts defendants at higher risk of irreparable harm.” Connell, 2020

16 WL 2315858, at *5; see also Fischman, 2020 WL 2097615, at * 3 (discussing

17 exhaustion in the context of a similarly extensive outbreak of COVID-19 at FCI

18 Terminal Island: “as the Bureau of Prisons faces a prison population at FCI

19 Terminal Island where over 60% of inmates have COVID-19, the Court finds no

20 reason to conclude that a response from the Bureau of Prisons is possible, let alone

21 likely within the next business day. . . [u]nfortunately, [the petitioner’s] health has

22 already been compromised in the few weeks since he filed this motion. Indeed, [his]

23 case illustrates the difference that just a few days’ delay may have under these

24 circumstances. [Petitioner] first tested negative for COVID-19 on April 24, 2020.

25 Just four days later, on April 28, 2020, he tested positive.”); accord Martinez-

26 Brooks, 2020 WL 2405350, at *18–19 (finding exhaustion waived on section 2241

27 class action habeas request for release to home confinement based on threat of

28 COVID-19 exposure because Petitioners are likely to suffer irreparable harm if

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1 required to exhaust, given the rapid spread of COVID-19 at Danbury prison and the

2 length of the administrative remedy process); cf. United States. v. Paige, 369 F.

3 Supp. 2d 1257, 1259–60 (D. Mon. 2005) (finding exhaustion waived in the context

4 of a § 2241 claim).

5

b. Exhaustion is not required under the PLRA because an

6

administrative remedy is “effectively unavailable” at

7

this time.

8

Petitioner is also seeking injunctive relief directly under the Eighth

9 Amendment of the United States Constitution to change Lompoc’s practices with

10 respect to medical treatment, isolation, quarantine, sanitation and use of PPE, a

11 claim that is subject to the Prison Litigation Reform Act (“PLRA”) and its

12 exhaustion requirement.156 But the PLRA requires only that a prisoner exhaust

13 those administrative remedies “as are available.” Sapp v. Kimbrell, 623 F.3d 813,

14 822 (9th Cir. 2010), superseded by statute on other grounds as stated in Avery v.

15 Paramo, No. 13-cv-2261 BTM, 2015 WL 4923820, at *14 (S.D. Cal. Aug. 18,

16 2015). As explained in detail below, administrative remedies are not available

17 because Lompoc is not currently allowing access to the grievance process.

18

The PLRA therefore does not require exhaustion when circumstances render

19 administrative remedies “effectively unavailable.” Id. As the Supreme Court has

20 explained, the circumstances in which an administrative remedy is unavailable

21 include “when (despite what regulations or guidance may promise) it operates as a

22 simple dead end—with officers unable or consistently unwilling to provide any

23 relief to aggrieved inmates” or “when prison administrators thwart inmates from

24 taking advantage of a grievance process.” Ross v. Blake, 136 S. Ct 1850, 1859–60

25

26 156 Like the exhaustion requirement for § 2241, the PLRA’s exhaustion requirement
27 is not jurisdictional and prisoners are not required to specially plead or demonstrate
28 exhaustion in their complaints. Jones v. Bock, 549 U.S. 199, 216 (2007).

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1 (2016). Justice Sotomayor recently addressed the availability of administrative

2 remedies during the pandemic: “if a plaintiff has established that the prison

3 grievance procedures at issue are utterly incapable of responding to a rapidly

4 spreading pandemic like Covid-19, the procedures may be “unavailable . . . much in

5 the way they would be if prison officials ignored the grievances entirely. . .in these

6 unprecedented circumstances, where an imminent faces an imminent risk of harm

7 that the grievance process cannot or does not answer, the PLRA’s textual exception

8 could open the courthouse doors where they would otherwise stay closed.” See

9 Valentine v. Collier, 590 U.S. ___ (2020), 2020 WL 249751, at *3 (Mem)

10 (Sotomayor, J.).

11

Here, it is clear that Lompoc’s grievance procedures that exist are utterly

12 incapable of addressing to the critical health and safety needs of the prisoners in its

13 care. According to Mr. Lumpkin, on or about April 13, just a week after he filed his

14 request, a prison official announced, “do not submit any request for compassionate

15 release, or grievances because staff is not accepting them because we are

16 understaffed.”157 From then on, counselors stopped giving out or accepting

17 grievance forms. One prisoner was told by his counselor that he would forward his

18 compassionate release request “to my shredder.”158 Compounding the problem is the

19 fact that release requests must be received by the Warden, and Lompoc has been

20 through three wardens in the past two months and even now has only an acting

21 warden.159 See e.g. Gorai, 2020 WL 1975372, at *2 (noting “that defendant’s

22 facility, Lompoc USP, has only an acting warden” in finding that there was “no

23 reason to delay” deciding request for compassionate release until administrative

24 25 157 Rim Decl. Exh. P (Lumpkin Decl. ¶ 46).

26 158 Id. ¶ 47.

27 159 https://www.independent.com/2020/05/13/lompoc-prison-explodes-with-active28 covid-19-cases/

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1 remedies were exhausted). In short, prison administrators are thwarting prisoners

2 from taking advantage of a grievance process such that administrative remedies are

3 “effectively unavailable.” As such, exhaustion is not a bar to Petitioners’ direct

4 Eighth Amendment challenge to the conditions of confinement at Lompoc during

5 the COVID-19 outbreak.

6

5. Petitioners’ habeas claims are properly brought under

7

Section 2241

8

Based on arguments made by BOP in other similar actions brought against

9 different prisons, Petitioners anticipate that Respondents will argue that Petitioners

10 are unlikely to succeed on the merits because they cannot seek redress for their

11 complaints under Section 2241. As an initial matter, it is important to point out that

12 Petitioners bring their claims under two separate procedural vehicles. First, they

13 seek either compassionate release or release to home confinement under section

14 2241 based on violations of the Eighth Amendment. Second, they seek injunctive

15 relief directly under the Eighth Amendment to institute appropriate conditions of

16 confinement to prevent the further spread of COVID-19 and to provide

17 constitutionally adequate medical care for confirmed COVID-19 cases. Both Ninth

18 Circuit law and recent cases from other jurisdictions grappling with these same

19 issues make clear that Petitioners claims are brought under the correct statutory

20 provisions.

21

Under Ninth Circuit precedent, a habeas corpus petition brought pursuant to

22 Section 2241 is the proper vehicle for a federal prisoner to challenge “the fact or

23 duration of his confinement.” Preiser v. Rodriguez, 411 U.S. 475, 498–99 (1973).

24 Put another way, where a prisoner “challenge[s] the manner, location, or conditions

25 of a sentence’s execution”, it is appropriate to do so pursuant to Section 2241.

26 Hernandez v. Campbell, 204 F.3d 861, 863 (9th Cir. 2000). Courts have already

27 ordered prisoners released from custody under Section 2241 due to officials’

28 inability to implement appropriate preventative, diagnostic, and/or treatment

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1 protocols in the face of the COVID-19 pandemic. See Wilson v. Williams, No. 4:20-

2 cv-00794, 2020 WL 1940882, at *5, 10 (N.D. Ohio Apr. 22, 2020) (concluding that

3 a similar habeas petition brought by prisoners at FCI Elkton on seeking release on

4 behalf of a class of medically vulnerable prisoners “ultimately seek[s] to challenge

5 the fact or duration of confinement,” and is properly brought under section 2241),

6 appeal filed (6th Cir. Apr. 27, 2020); Wilson v. Williams, 20-3447, ECF No. 23-1

7 (6th Cir. May 4, 2020) (denying the Government’s motion to stay, holding that,

8 “[w]here a petitioner claims no set of conditions would be constitutionally

9 sufficient, we construe the petitioner’s claim as challenging the fact of the

10 confinement,” and concluding that the District Court had jurisdiction under §2241);

11 Martinez-Brooks, 2020 WL 2405350, at *16–17 (concluding that a similar habeas

12 petition brought by prisoners at FCI Danbury seeking release on behalf of a class of

13 medically vulnerable prisoners was properly brought under section 2241 because it

14 challenged “the fact or duration of confinement” by claiming that “no constitutional

15 conditions of confinement are possible under the circumstances”).

16

As in Martinez-Brooks and Wilson, Petitioners here contend that the fact of

17 their confinement in prison itself amounts to an Eighth Amendment violation and

18 nothing short of an order ending their confinement at Lompoc will alleviate that

19 violation. They allege that their medical history, and the medical history of other

20 medically vulnerable class members and the outbreak at Lompoc combine to place

21 them in grave danger from COVID-19, that at current facility population levels, they

22 and other Lompoc inmates cannot comply with CDC guidelines for physical

23 distancing. As a result, any other mitigating steps will fail to meaningfully decrease

24 the risk of contracting COVID-19 at Lompoc, and, given the size of the outbreak at

25 Lompoc, adequate medical care cannot be given for either COVID-19 or pre-

26 existing conditions. In short, because Petitioners contends that the Eighth

27 Amendment violation here inheres in their incarceration and cannot be remedied

28 unless they are removed from that setting, they are challenging the fact – or

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1 existence – of their confinement. And, since this is a habeas petition challenging the

2 fact or duration of confinement in prison, the PLRA, and its procedural hurdles,

3 does not apply. 18 U.S.C. § 3636(g)(2); Naddi v. Hill, 106 F.3d 275, 277 (9th Cir.

4 1997) (“Congress was clearly not concerned with habeas corpus proceedings when

5 they enacted the PLRA . . . .”); Carmona v. U.S. Bureau of Prisons, 243 F.3d 629,

6 634 (2d Cir. 2001) (“[T]he requirements of the [PLRA] do not apply to habeas

7 proceedings.”); Harris v. Garner, 216 F.3d 970, 979 n.7 (11th Cir. 2000) (“28

8 U.S.C. § 2241, 2254, and 2255 filings . . . are not covered by the PLRA.”).160

9

C. Petitioners and the Class Face Irreparable Harm if They Continue

10

to Be Incarcerated and If Unsafe Conditions are Allowed to Persist

11

At Lompoc

12

Petitioners and the Class face a substantial risk that they may contract

13 COVID-19, and suffer from serious illness and/or death. For Petitioners and Class

14 members that have contracted COVID-19, they are at risk of needlessly suffering

15 more serious, long-lasting consequence or even death due to inadequate care if the

16 relief sought is not granted.

17

A plaintiff who seeks a TRO must demonstrate that he is likely to suffer

18

19 160 Petitioners also properly bring their civil rights claims related to their conditions
20 of confinement directly under the Eighth Amendment. Prisoners may seek injunctive relief directly under the Eighth Amendment to compel prison officials to
21 provide adequate medical care and institute measures to prevent the spread of deadly
22 disease. See, e.g., Thomas v. U.S, 779 F. Supp. 2d 154, 158 (D.D.C. 2011) (finding that a claim to compel prison officials to provide adequate medical care for
23 prisoner’s chronic conditions brought directly under the Eighth Amendment is “not
24 foreclosed”); Farmer, 511 U.S. at 846 (“If the court finds the Eighth Amendment’s subjective and objective requirements satisfied” with regard to federal prisoner “it
25 may grant appropriate injunctive relief.”); Corr Servs. Corp. v. Malesko, 534 U.S.
26 61, 74 (2001) (recognizing that a lawsuit for injunctive relief has been “long recognized as the proper means for preventing entities from acting
27 unconstitutionally”).

28

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1 irreparable harm in the absence of a TRO. See Winter, 555 U.S. at 20.161 To

2 establish irreparable harm, a plaintiff must demonstrate that “remedies available at

3 law, such as monetary damages, are inadequate to compensate” for the injury. Herb

4 Reed Enters., LLC v. Fla. Entm't Mgmt., 736 F.3d 1239, 1249 (9th Cir. 2013). “It is

5 well established that the deprivation of constitutional rights ‘unquestionably

6 constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.

7 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).

8

A likelihood of irreparable harm is clearly present here. Petitioners and other

9 Lompoc prisoners face severe illness, pain, and potentially death if the TRO is not

10 granted. There is already an extreme outbreak of COVID-19 at Lompoc and three

11 lives have been lost. Petitioners and the other inmates, many of whom are medically

12 vulnerable, are at serious risk of grave or life-threatening complications due to the

13 overcrowding, inability to socially distance, lack of adequate PPE and disinfectant

14 solution and the inadequate, indifferent medical care.

15

It is axiomatic that a substantial risk of serious illness or death, such as that

16 posed here, constitutes irreparable harm. “The Constitution protects those in

17 detention against a condition of confinement that is sure or very likely to cause

18 serious illness and needless suffering the next week or month or year.” Fraihat,

19 2020 WL 1932570 at *27 (internal citations and quotations omitted) (Bernal, J.); see

20 also Helling, 509 U.S. at 33 (“It would be odd to deny an injunction to inmates who

21 plainly proved an unsafe, life-threatening condition in their prison on the ground

22 that nothing yet had happened to them.”); Harris v. Bd. of Supervisors, Los Angeles

23

24 161 The plaintiff “need not further show that the action sought to be enjoined is the exclusive cause of the injury.” M.R. Dreyfus, 697 F.3d 706, 728–29 (9th Cir. 2004)
25 (finding that a challenged regulation that increases risk of institutionalization
26 inflicts cognizable irreparable injury for purposes of a preliminary injunction where the regulation “exacerbate[s] that risk” even though “that risk is not exclusively
27 attributable to the challenged regulation”).

28

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1 Cty., 366 F.3d 754, 766 (9th Cir. 2004) (finding likelihood of “pain, infection,

2 amputation, medical complications, and death” constituted irreparable harm).162

3

For this reason, courts around the country, including the Central District of

4 California have concluded that incarcerated individuals “established they will suffer

5 the irreparable harm of increased likelihood of severe illness and death” from

6 COVID-19 “if a [TRO or] preliminary injunction is not entered.” Fraihat, 2020 WL

7 1932570, at *27 (Bernal, J.); see also Castillo v. Barr, --- F. Supp. 3d ---, 2020 WL

8 1502864, at *1 (C.D. Cal. Mar. 27, 2020) (Hatter, J.) (granting TRO and finding that

9 the immigration detainee petitioners established that they are likely to suffer

10 irreparable harm due to the risk of contracting COVID-19 when they are not kept six

11 feet apart from other detainees); Kaur v. U.S. Dep’t of Homeland Security, No. 2:20-

12 cv-03172, 2020 WL 1939386, at *3 (C.D. Cal. April 22, 2020) (Wright, J.) (finding

13 that “the risk posed in immigration detention facilities of contracting and dying from

14 [COVID-19] is so severe that it constitutes an irreparable harm supporting a TRO”);

15 Doe v. Barr, No. 20-cv-02141, 2020 WL 1820667, at *1, 9 (N.D. Cal. April 12,

16 2020) (granting TRO for “immediate release” of Section 2241 petitioner in ICE

17 custody because detainees at the facility where he was housed “live in close

18 quarters, cannot practice social distancing, do not have masks, and do not have

19 access to adequate disinfecting and cleaning supplies”); Bent v. Barr, No. 19-cv-

20

21 162 Indeed, irreparable harm can be established by showing a substantial likelihood 22 of emotional or psychological injury. Chalk v. U.S. Dist. Court Cent. Dist. of
California, 840 F2d 701, 709-10 (9th Cir. 1988) (finding that emotional and 23 psychological injury cannot be adequately compensated for by a monetary award 24 and therefore constitutes irreparable injury); Edmo v. Corizon, Inc., 935 F.3d 757,
797-98 (9th Cir. 2019) (irreparable harm existed with respect to denial of treatment 25 for inmates gender dysphoria due to “ongoing psychological distress and the high
26 risk of self-castration and suicide she faces absent surgery.”); Inland EmpireImmigrant Youth Collective v. Nielsen, No. 17-cv-2048, 2018 WL 1061408, at *20
27 (C.D. Cal. February 26, 2018) (finding that loss of DACA causes emotional pain, 28 which is a cognizable form of irreparable injury).

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1 06123, 2020 WL 1812850, at *1–2 (N.D. Cal. Apr. 9, 2020) (granting TRO for

2 release of Section 2241 petitioner, who alleged failure to adequately protect him

3 from COVID-19 “due to overcrowding and lack of adequate cleaning supplies”);

4 Wilson v. Williams, No. 20-3447, ECF No. 23, at *3 (6th Cir. May 4, 2020)

5 (ordering release of inmates where they “claim[ed] no set of conditions would be

6 constitutionally sufficient” during the COVID-19 pandemic, which “challeng[ed]

7 the fact of the confinement”); Coronel v. Decker, --- F. Supp. 3d ---, 2020 WL

8 1487274, at *10 (S.D.N.Y. Mar. 27, 2020) (issuing TRO for “immediate[] release”

9 of Section 2241 Petitioners asserting a deliberate indifference medical treatment

10 claim); Jovel v. Decker, No. 20-cv-308, 2020 WL 1467397, at *1–2 (S.D.N.Y. Mar.

11 26, 2020) (due to COVID-19, releasing Section 2241 petitioner during pendency of

12 removal proceedings); Thakker v. Doll, No. 20-cv-0480, 2020 WL 1671563, at *9

13 (M.D. Pa. Mar. 31, 2020) (issuing TRO and ordering facilities to “immediately”

14 release, on their own recognizance, habeas Petitioners who “suffer[] from chronic

15 medical conditions and face[] an imminent risk of death or serious injury if exposed

16 to COVID-19”); cf. Xochihua-Jaimes v. Barr, 798 F. App’x 52 (Mem) (9th Cir.

17 Mar. 24, 2020) (sua sponte ordering release of immigration detainee during

18 pendency of appeal); United States v. Brady, No. 20--623, 2020 WL 1865486, at

19 *1–3 (M.D. Pa. Apr. 14, 2020) (court sua sponte construed motion for immediate

20 release to home confinement as a habeas petition under Section 2241 and transferred

21 matter to jurisdiction where petitioner was incarcerated).

22

D. It Is in the Public Interest to Release Appropriate Prisoners to

23

Home Confinement and Institute Other Measures to Prevent the

24

Spread of COVID-19

25

Where the government is the opposing party, balancing of the harm and the

26 public interest merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). Here, the

27 balance of equities and public interest sharply incline in Petitioners’ favor. “[I]t is

28 always in the public interest to prevent the violation of a party's constitutional

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1 rights.” Melendres, 695 F.3d at 1002 (internal quotation omitted). That is especially

2 true here, where the constitutional rights at stake go the physical well-being of the

3 Petitioners. Moreover, there can be no public interest in exposing vulnerable persons

4 to increased risks of severe illness and death. “Faced with such a conflict between

5 financial concerns and preventable human suffering, we have little difficulty

6 concluding that the balance of hardships tips decidedly in plaintiffs' favor.”

7 Hernandez, 872 F.3d at 996 (quoting Lopez v. Heckler, 713 F.2d 1432, 1437 (9th

8 Cir. 1983)).

9

Numerous courts have already found a significant public interest in releasing

10 ill and medically vulnerable prisoners and detainees during the COVID-19

11 pandemic. See e.g. Bent, 2020 WL 1812850, at *7 (finding it was in the public

12 interest to release detainee with prior violent felony conviction to prevent spread of

13 COVID-19); Castillo, 2020 WL 1502864, at *6 (ordering release of detainee and

14 finding that “[t]he public has a critical interest in preventing the further spread of the

15 coronavirus.”); Martinez-Brooks, 2020 WL 2405350, at *28 (finding it was in the

16 public interest to release to home confinement medically vulnerable prisoners at FCI

17 Danbury); Wilson, 2020 WL 1940882, at *9–10 (finding that it was in the public

18 interest to release to home confinement medically vulnerable prisoners at FCI

19 Elkton).

20

The relief requested here – release of appropriate inmates to home

21 confinement (to be identified through a structured, court-supervised individualized

22 determination), and institution of appropriate precautionary measures and

23 constitutionally adequate medical care at the prison would protect the staff at

24 Lompoc as well as the community at large.163 That is true even for patients who

25

26 163 It is important that Respondents engage in individualized determinations and not rely on categorical bars based on the nature of an offense, when time, disciplinary
27 record, and other factors can indicate that a prisoner is not a danger to society. See
28 e.g. Pippin, 2020 WL 2602140, at *3 (granting compassionate release to sex

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1 have tested positive for COVID-19. Releasing COVID-19 positive medically

2 vulnerable prisoners to home confinement reduces the risk that local hospitals will

3 be overwhelmed by people who are more likely to need the most substantial care,

4 leaving more resources to treat the community. See United States v. Arreola-

5 Bretado, --F.Supp.3d--, 2020 WL 2535049, at *3 (S.D. Cal. May 15, 2020) (“The

6 Government argues that Ms. Arreola-Bretado is dangerous for the sole reason that

7 she is COVID-19-positive. But with appropriate medical care, she will not be a

8 harm to others. Returning to her family to quarantine is safer for the community

9 than is keeping Ms. Arreola-Bretado confined to Otay Mesa where she will likely be

10 a risk to other inmates and staff who have not yet contracted COVID-19.”). It would

11 also reduce staff interaction with COVID-19 positive prisoners, which is in the

12 public interest because staff members who come into contact with COVID-19-

13 positive prisoner may spread the disease to other prisoners as well as their families

14 and communities.164 Release of prisoners to home confinement also helps protect

15 the prisoners who remain at Lompoc by reducing the population density in the

16 prison, which will finally allow the implementation of physical distancing measures.

17 Importantly, according to Dr. Samra, reducing the prison population effectively

18 reduces the number of people inside who will become ill enough to require outside

19 hospitalization, which also reduces the strain on community hospital resources and

20 decreases chances of sick prisoners coming into contact with other members of the

21

22
23 offender, finding based on based on age, lack of disciplinary infractions, and other current facts that he was no longer danger to the safety of any other person or to the
24 community despite conviction for sex offense from 2016 and prior conviction for 25 sex offense in 2002).

26 164 Sandhya Kajeepeta & Seth J. Prins, Why Coronavirus in Jails Should Concern All of Us, THE APPEAL (Mar. 24, 2020), https://theappeal.org/coronavirus-jails-
27 public-health/.

28

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1 general public.165 Accordingly, the relief Petitioners seek can slow or stop the

2 spread of infection (or re-infection) and ensure appropriate and proactive treatment

3 of infected prisoners, to the benefit of prisoners and staff and, ultimately, the

4 community at large.”166 Given that Petitioners here are requesting a structured,

5 court-supervised process for individualized consideration of each prisoner’s

6 suitability for release to home confinement, releasing even prisoners who have

7 tested positive for the virus will not put the public in harm’s way. As part of this

8 structured process, Petitioners specifically request that Respondents provide each

9 prisoner with an opportunity to present an appropriate home release plan. Each of

10 the Petitioners has such a plan already in place. Each of the named Petitioners plans

11 to live, and self-quarantine, at the home of a relative, where they will have access to

12 doctors familiar with conditions and medical history. Petitioner Torres plans to live

13 with his sister, Petitioner Reed with his brother, Petitioner Garcia with his parents,

14 Petitioner Brown with his daughter, and Petitioner Fears with his daughter.

15

The requested actions – which will help prevent burdening hospitals and

16 healthcare systems, and allow our communities to safely reopen sooner – are

17 undeniably in the public interest.

18

E. This Court Has the Power to Grant a TRO and Issue a Provisional

19

Order of Enlargement of Custody While This Habeas Action is

20

Pending.

21

In light of the emergency nature of Petitioners’ circumstances and the

22 substantial health and safety issues raised by their petition, they request that the

23 Court act immediately to safeguard their well-being and the well-being of the other

24 prisoners at Lompoc and enter an Order enlarging their custody to place them and

25 other appropriate members of the Class on home confinement during the pendency

26 165 Rim Decl. Exh. L (Samra Decl. ¶ 22).
27

28 166 Id. at ¶ 24 (emphasis added.)

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Case 2:20-cv-04450-CBM-PVC Document 18 Filed 06/01/20 Page 68 of 72 Page ID #:508

1 of this habeas action.

2

Federal district courts have authority, when habeas actions are pending, to

3 “enlarge” the custody of petitioners. Enlargement is not release. Rather, it is a

4 provisional remedy that modifies custody by expanding the site at which it takes

5 place. That is, the petitioner remains in custody, but the place of custody is

6 changed, or “enlarged,” upon order of the court, from a particular prison to a

7 hospital, halfway house, a person’s home, or another setting. See Declaration of

8 Professor Judith Resnik Regarding Enlargement and the Use of Provisional

9 Remedies for Detained Individuals (“Resnik Dec.) ¶¶ 29-30; see also Wilson, 2020

10 WL 1940882, *4 (describing the authority of the district court to grant enlargement

11 pending a ruling on the merits of a habeas petition, noting that “[w]hen a court

12 exercises its power to ‘enlarge’ the custody of a defendant pending the outcome of a

13 habeas action, the BOP maintains custody over the defendant, but the place of

14 custody is altered by the court”); Martinez-Brooks, 2020 WL 2405350, at *14 (in

15 Section 2241 petition based on COVID-19, granting TRO seeking “enlargement to

16 home confinement” where prisoners “would remain within the custody of BOP”).

17

Enlargement is part and parcel of Congress’s authorization for federal judges

18 under the habeas statutes to “summarily hear and determine the facts, and dispose of

19 the matter as law and justice require.” See 28 U.S.C. § 2243. The Ninth Circuit has

20 explicitly recognized the power of district courts to grant release pending a habeas

21 decision where there are “special circumstances” and “a high probability of

22 success.” See Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989); see also Hall v.

23 Superior Court, No. 09-cv-5299, 2010 WL 890044, at *2–3 (N.D. Cal. March 8,

24 2010) (holding that a district court can grant bail to state prisoners pending a habeas

25 decision if the prisoner shows “exceptional circumstances” and a “high probability

26 of success.”)167

27

28 167 Other circuits that have considered this issue have likewise concluded that a

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1

Applying this standard, at least two courts have granted enlargement to

2 classes of prisoners pending final adjudication of their habeas petitions based on the

3 risks presented by the COVID-19 crisis. Wilson, 2020 WL 1940882; Martinez-

4 Brooks v. Easter, 2020 WL 2405350. In granting enlargement the Martinez-Brooks

5 courts put in place a structured, supervised process for BOP to determine which

6 prisoners could appropriately be released to home confinement in order to decrease

7 the density of the prisons to the degree of safety necessary to prevent the spread of

8 COVID-19. In particular, the court required on an explicit timeframe:

9

• The identification of all medically vulnerable prisoners;

10

• Implementation of a process that makes full and speedy use of the

home confinement authority under 18 U.S.C. § 3624(b) and the

11

CARES Act by (a) prioritizing for review for home confinement all

inmates identified on the list, (b) assigning substantial weight in that

12

review to the inmate’s risk factors for COVID-19 based on CDC

guidance, (c) eliminating all requirements that the inmate have served

13

some portion of his or her sentence to be eligible for placement on

home confinement, (d) eliminating the requirement that a “primary or

14

prior offense” not be a violent offense; (e) eliminating the requirement

that the inmate be “without incident reports in the past 12 months

15

(regardless of severity level)”; (f) modifying any requirement that a

person approved for home confinement be quarantined at the facility

16

for 14 days to allow for immediate release to home confinement for

those inmates as to whom Respondent verifies, after reasonable inquiry,

17

that the inmate is not showing symptoms and is able to self-isolate for

the same period in the home confinement setting;

18

• Provision of written notice of (a) either a referral of the matter in

19

writing with recommendation of approval of the request or (b) denial of

the request, together with the appropriate appeal form to each inmate

20

identified who had made a written request for compassionate relief

based on COVID-19 but has not yet received a decision;

21

• Implement a process by which inmates who make a request for

22

compassionate release based on COVID-19 receive notice of either

23 provisional remedy of enlargement (or bail) pending a decision on a habeas petition 24 is appropriate. See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir.2001); Landano v.
Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992); Martin v. Solem, 801 F.2d 324, 329 25 (8th Cir. 1986); Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972); Calley v.
26 Callaway, 496 F.2d 701, 702 (5th Cir.1974); Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990); Cherek v. United States, 767 F.2d 335, 337 (7th Cir.1985); Pfaff v.
27 Wells, 648 F.2d 689, 693 (10th Cir. 1981); Baker v. Sard, 420 F.2d 1342, 1343–44 28 (D.C. Cir. 1969).

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1

referral or denial within 7 days

2

• File a statement on the docket explaining whether and how the criteria

in the BOP’s Program Statement governing compassionate release have

3

been updated to take account of the COVID-19 crisis

4

• Complete review of the home confinement process and approve or

deny such person home confinement;

5

• Provide to the Court an individualized explanation of each denial of

6

home confinement as to an inmate identified pursuant to the home

confinement process implemented by the Court, including at least a

7

brief description of the factual basis for any factors deemed to outweigh

the danger to the inmate from COVID-19.

8

Martinez-Brooks, 2020 WL 2405350, at *32–34.

9

This individualized, supervised process-based remedy left decision making in

10

the hands of BOP, while ensuring that BOP makes timely decisions based on

11

appropriate considerations in light of the nature of the threat from COVID-19.

12

Petitioners here request a similar, process-based remedy in order to preserve

13

Petitioners’ current state of health and wellbeing and to make the remedy of release

14

effective if they prevail in this action. Petitioners have articulated the specific

15

relief requested in a concurrently filed Proposed Order. Petitioners have

16

demonstrated “extraordinary circumstances” and shown a “high probability of

17

success” supporting enlargement relief in light of the rampant spread of COVID-19

18

at Lompoc, the particular threat to their health, and Respondents’ failure to ensure

19

necessary social distancing, effective quarantine and isolation procedures, adequate

20

sanitation and adequate medical care. Enlargement pursuant to a supervised process

21

is, thus, both appropriate and necessary here.

22

IV. CONCLUSION

23

For the foregoing reasons, Petitioners respectfully request that Court grant the

24

Temporary Restraining Order and impose a structured, court-supervised process for

25

individualized consideration of each prisoner’s suitability for release on an

26

accelerated schedule that focuses on the critical factors of prisoner and public safety

27

currently ignored by the current home confinement review process at Lompoc.

28

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Case 2:20-cv-04450-CBM-PVC Document 18 Filed 06/01/20 Page 71 of 72 Page ID #:511

1 Petitioners further request that the Court require Respondents to adhere to CDC

2 guidance regarding the prevention and treatment of COVID-19.

3

Respectfully submitted,

4 DATED: June 1, 2020 5

Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C.

6

By:

/s/ Naeun Rim

7

Naeun Rim Attorneys for Plaintiff-Petitioners

8

9 DATED: June 1, 2020 10

Peter J. Eliasberg Peter Bibring ACLU Foundation of Southern California

11

By:

/s/ Peter Bibring

12

Peter Bibring

Attorneys for Plaintiff-Petitioners 13

14 DATED: June 1, 2020 15 16 17 18

Donald Specter Sara Norman Prison Law Office

By:

/s/ Donald Specter

Donald Specter Attorneys for Plaintiff-Petitioners

19

20

21

22

23

24

25

26

27

28
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EX PARTE APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION

Case 2:20-cv-04450-CBM-PVC Document 18 Filed 06/01/20 Page 72 of 72 Page ID #:512

1

CERTIFICATE OF AUTHORIZATION

2

TO SIGN ELECTRONIC SIGNATURE

3

Pursuant to Local Rule 5-4.3.4(a)(2)(i) of the Signatures Procedures for the

4 United States District Court for the Central District of California, filer attests that all

5 other signatories listed concur in the filing’s content and have authorized this filing.

6 DATED: June 1, 2020 7

Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C.

8

By:

/s/ Naeun Rim

9

Naeun Rim Attorneys for Plaintiff-Petitioners

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3651124

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EX PARTE APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 1 of 224 Page ID #:513

1 Terry W. Bird – Bar No. 49038 tbird@birdmarella.com
2 Dorothy Wolpert – Bar No. 73213 dwolpert@birdmarella.com
3 *Naeun Rim – Bar No. 263558 nrim@birdmarella.com
4 Shoshana E. Bannett – Bar No. 241977 sbannett@birdmarella.com
5 Christopher J. Lee – Bar No. 322140 clee@birdmarella.com
6 Jimmy Threatt – Bar No. 325317 jthreatt@birdmarella.com
7 BIRD, MARELLA, BOXER, WOLPERT, NESSIM, DROOKS,
8 LINCENBERG & RHOW, P.C. 1875 Century Park East, 23rd Floor
9 Los Angeles, California 90067-2561 Telephone: (310) 201-2100
10 Facsimile: (310) 201-2110

11 Peter J. Eliasberg – Bar No. 189110 peliasberg@aclusocal.org
12 Peter Bibring – Bar No. 223981 pbibring@aclusocal.org
13 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
14 1313 West 8th Street Los Angeles, CA 90017
15 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
16 Attorneys for Plaintiff-Petitioners
17

Donald Specter – Bar No. 83925 dspecter@prisonlaw.com
Sara Norman – Bar No. 189536 snorman@prisonlaw.com
PRISON LAW OFFICE 1917 Fifth Street Berkeley, California 94710 Telephone: (510) 280-2621 Facsimile: (510) 280-2704

18

UNITED STATES DISTRICT COURT

19

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

20 YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL
21 GARCIA; ANDRE BROWN; and SHAWN L. FEARS, individually and
22 on behalf of all others similarly situated,

23

Plaintiff-Petitioners,

24

vs.

CASE NO. 2:20-cv-04450-CBM-PVCx DECLARATION OF NAEUN RIM IN SUPPORT OF PLAINTIFFPETITIONERS’ EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

25 LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL
26 CARVAJAL, in his capacity as Director of the Bureau of Prisons,
27 Defendant-Respondents.
28

Assigned to Hon. Consuelo B. Marshall Courtroom 8B

3651132

DECLARATION OF NAEUN RIM

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 2 of 224 Page ID #:514

1

DECLARATION OF NAEUN RIM

2

I, Naeun Rim, declare as follows:

3

1. I am an active member of the Bar of the State of California and a

4 Principal with Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow,

5 A Professional Corporation, attorneys of record for Plaintiff-Petitioners Yonnedil

6 Carror Torres; Vincent Reed, Felix Samuel Garcia, Andre Brown, and Shawn L.

7 Fears (“Plaintiff-Petitioners”) in this action. I make this declaration in support of

8 Plaintiff-Petitioners’ Ex Parte Application for Temporary Restraining Order and

9 Order to Show Cause Re: Preliminary Injunction. Except for those matters stated on

10 information and belief, I make this declaration based upon personal knowledge and,

11 if called upon to do so, I could and would so testify.

12

2. The below is a table with a brief description of the documents that are

13 attached to this Declaration as exhibits, with more detailed descriptions of each

14 document provided in the paragraphs below:

15 Exhibit Description

16 A April 3, 2020 Attorney General’s Memorandum to Bureau of Prisons

17 B March 23, 2020 CDC Interim Guidance on COVID-19 in Correctional

18

and Detention Facilities

19 C March 26, 2020 Attorney General’s Memorandum to Bureau of Prisons

20 D April 22, 2020 Bureau of Prisons’ Memorandum

21 E May 8, 2020 Bureau of Prisons’ Memorandum

22 F Declaration of Kiara Carror (Corrected Complaint Exhibit 1)

23 G Declaration of Joanna Munson Perales (Corrected Complaint Exhibit 2)

24 H Declaration of Graciela Zavala-Garcia (Corrected Complaint Exhibit 3)

25

I Declaration of Verna Wefald (Corrected Complaint Exhibit 4)

26

J Declaration of Nema Zayed Fears (Corrected Complaint Exhibit 5)

27 K Declaration of Darwin P. Roberts (Corrected Complaint Exhibit 6) 28

3651132

2
DECLARATION OF NAEUN RIM

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 3 of 224 Page ID #:515

1 Exhibit Description

2 L Declaration of Shamsher Samra, M.D. (Corrected Complaint Exhibit 7)

3 M Declaration of Marc Stern, M.D. (Corrected Complaint Exhibit 8)

4 N Declaration of Professor Judith Resnik (Corrected Complaint Exhibit 9)

5 O Declaration of James Threatt (Corrected Complaint Exhibit 10)

6 P Declaration of Richard Lumpkin 7 Q FCI Lompoc Document 8 R May 19-20, 2020 Meet and Confer Emails with AUSAs 9 S Declaration of Shelly Hemmelgarn 10

11

3. Attached as Exhibit A is a true and correct copy of the Memorandum

12 for Director of Bureau of Prisons by Attorney General William P. Barr, dated April

13 3, 2020, which is available online at https://www.justice.gov/file/1266661/download

14 as of May 21, 2020.

15

4. Attached as Exhibit B is a true and correct copy of the Interim

16 Guidance on Management of Coronavirus Disease (COVID-19) in Correctional and

17 Detention Facilities from the Center for Disease Control, dated March 23, 2020,

18 which is available online at https://www.cdc.gov/coronavirus/2019-

19 ncov/downloads/guidance-correctional-detention.pdf as of May 21, 2020.

20

5. Attached as Exhibit C is a true and correct copy of the Memorandum

21 for Director of Bureau of Prisons by Attorney General William P. Barr, dated March

22 26, 2020, which is available online at

23 https://www.justice.gov/file/1262731/download as of May 21, 2020.

24

6. Attached as Exhibit D is a true and correct copy of the Bureau of

25 Prisons’ Correctional Programs Division Acting Assistant Director Andre

26 Matevousian & Reentry Services Division Assistant Director Hugh J. Hurwitz’s

27 Memorandum to Chief Executive Officers dated April 22, 2020, which is available

28 online at https://famm.org/wp-content/uploads/bop-memo-4.23.2020.pdf as of

3651132

3
DECLARATION OF NAEUN RIM

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 4 of 224 Page ID #:516

1 May 21, 2020.

2

7. Attached as Exhibit E is a true and correct copy of the Bureau of

3 Prisons’ Correctional Programs Division Acting Assistant Director Andre

4 Matevousian & Reentry Services Division Assistant Director Hugh J. Hurwitz’s

5 Memorandum to Chief Executive Officers dated May 8, 2020, which is available

6 online at https://prisonology.com/wp-content/uploads/2020/05/COVID-19-Hurwitz-

7 Memo-and-BOP-guidance-2020-05-08.pdf.

8

8. Attached as Exhibit F is a true and correct copy of the Declaration of

9 Kiara Carror, attached as Exhibit 1 to the Corrected Complaint filed as Dkt. 16 in

10 this matter.

11

9. Attached as Exhibit G is a true and correct copy of the Declaration of

12 Joanna Munson Perales, attached as Exhibit 2 to the Corrected Complaint filed as

13 Dkt. 16 in this matter.

14

10. Attached as Exhibit H is a true and correct copy of the Declaration of

15 Graciela Zavala-Garcia, attached as Exhibit 3 to the Corrected Complaint filed as

16 Dkt. 16 in this matter.

17

11. Attached as Exhibit I is a true and correct copy of the Declaration of

18 Verna Wefald, attached as Exhibit 4 to the Corrected Complaint filed as Dkt. 16 in

19 this matter.

20

12. Attached as Exhibit J is a true and correct copy of the Declaration of

21 Nema Zayed Fears, attached as Exhibit 5 to the Corrected Complaint filed as Dkt.

22 16 in this matter.

23

13. Attached as Exhibit K is a true and correct copy of the Declaration of

24 Darwin P. Roberts, attached as Exhibit 6 to the Corrected Complaint filed as Dkt. 16

25 in this matter.

26

14. Attached as Exhibit L is a true and correct copy of the Declaration of

27 Samsher Samra, M.D., attached as Exhibit 7 to the Corrected Complaint filed as

28 Dkt. 16 in this matter.

3651132

4
DECLARATION OF NAEUN RIM

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 5 of 224 Page ID #:517

1

15. Attached as Exhibit M is a true and correct copy of the Declaration of

2 Marc Stern, M.D., attached as Exhibit 8 to the Corrected Complaint filed as Dkt. 16

3 in this matter.

4

16. Attached as Exhibit N is a true and correct copy of the Declaration of

5 Professor Judith Resnik, attached as Exhibit 9 to the Corrected Complaint filed as

6 Dkt. 16 in this matter.

7

17. Attached as Exhibit O is a true and correct copy of the Declaration of

8 Jimmy Threatt, attached as Exhibit 10 to the Corrected Complaint filed as Dkt. 16 in

9 this matter.

10

18. Attached as Exhibit P is the Declaration of Richard Lumpkin, a

11 recently released prisoner from FCI Lompoc. This Declaration is being filed

12 concurrently with this Ex Parte Application.

13

19. Attached as Exhibit Q is a true and correct copy of a document which

14 was mailed to my office by Michael Carrey, BOP #25751-298, who identified

15 himself as a prisoner at FCI Lompoc.

16

20. Attached as Exhibit R is a true and correct copy of my email

17 correspondence with counsel for Respondents.

18

21. Attached as Exhibit S is a true and correct copy of the Declaration of

19 Shelly Hemmelgarn. This declaration is being filed concurrently with this Ex Parte

20 Application.

21

22. Since May 20, 2020, I have been meeting and conferring with counsel

22 for Respondents Joannne Osinoff, David M. Harris, and Keith Staub by phone and

23 by email regarding this ex parte application for a temporary restraining order

24 (“TRO”) and order to show cause (“OSC”) re: preliminary injunction, as well as a

25 request to file an oversized brief and a request for expedited discovery, both in this

26 matter and in Wilson v. Ponce, 20-CV-4451 MWF (MRWx). They indicated they

27 intended to oppose ex parte both applications. On May 29, 2020, I emailed Mr.

28 Staub to see if Respondents had changed their positions. To date, I have not received

3651132

5
DECLARATION OF NAEUN RIM

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 6 of 224 Page ID #:518

1 a response.

2

I declare under penalty of perjury under the laws of the United States of

3 America that the foregoing is true and correct, and that I executed this declaration

4 on June 1, 2020, at Los Angeles, California.

5

6

/s/ Naeun Rim

7

Naeun Rim

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3651132

6
DECLARATION OF NAEUN RIM

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 7 of 224 Page ID #:519
EXHIBIT A
7

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 8 of 224 Page ID #:520
0,fficrof t~rAttarnel~!tneral
ll ns~inghtn,E.Q.I20.SSO
April 3, 2020

MEMORANDUM FOR DIRECTOR OF BUREAU OF PRISONS

FROM: SUBJECT:

THEATTORNEYGENERAW

~

Increasing Use of Home Confinement at Institutions Most Affected by COVID- 19

The mission of BOP is to administer the lawful punishments that our justice system imposes. Executing that mission imposes on us a profound obligation to protect the health and safety of all inmates.
Last week, I directed the Bureau of Prisons to prioritize the use of home confinement as a tool for combatting the dangers that COVID- 19 poses to our vulnerable inmates, while ensuring we successfully discharge our duty to protect the public. I applaud the substantial steps you have already taken on that front with respect to the vulnerable inmates who qualified for home confinement under the pre-CARES Act standards.
As you know, we are experiencing significant levels of infection at several of our facilities, including FCI Oakdale, FCI Danbury , and FCI Elkton. We have to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions. I would like you to give priority to these institutions, and others similarly affected, as you continue to process the remaining inmates who are eligible for home confinement under pre-CARES Act standards. In addition , the CARES Act now authorizes me to expand the cohort of inmates who can be considered for home release upon my finding that emergency conditions are materially affecting the functioning of the Bureau of Prisons. I hereby make that finding and direct that, as detailed below, you give priority in implementing these new standards to the most vulnerable inmates at the most affected facilities, consistent .with the guidance below .
I. IMMEDIATELY MAXIMIZE APPROPRIATE TRANSFERS TO HOME CONFINEMENT OF ALL APPROPRIATE INMATES HELD AT FCI OAKDALE, FCI DANBURY, FCI ELKTON, AND AT OTHER SIMILARLY SITUATED BOP FACILITIES WHERE COVID -19 IS MATERIALLY AFFECTING OPERATIONS

8

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 9 of 224 Page ID

Memorandum from the Attorney General #:521

Page 2

Subject: Increasing Use of Home Confinement at Institutions Most Affected by COVID-19

While BOP has taken extensive precautions to prevent COVID-19 from entering its facilities and infecting our inmates, those precautions, like any precautions, have not been perfectly successful at all institutions. I am therefore directing you to immediately review all inmates who have COVID-19 risk factors, as established by the CDC, starting with the inmates incarcerated at FCI Oakdale, FCI Danbury, FCI Elkton, and similarly situated facilities where you determine that COVID-19 is materially affecting operations. You should begin implementing this directive immediately at the facilities I have specifically identified and any other facilities facing similarly serious problems. And now that I have exercised my authority under the CARES Act, your review should include all at-risk inmates-not only those who were previously eligible for transfer .
For all inmates whom you deem suitable candidates for home confinement, you are directed to immediately process them for transfer and then immediately transfer them following a 14-day quarantine at an appropriate BOP facility, or, in appropriate cases subject to your case-bycase discretion , in the residence to which the inmate is being transferred. It is vital that we not inadvertently contribute to the spread of COVID-19 by transferring inmates from our facilities. Your assessment of these inmates should thus be guided by the factors in my March 26 Memorandum, understanding, though , that inmates with a suitable confinement plan will generally be appropriate candidates for home confinement rather than continued detention at institutions in which COVID-19 is materially affecting their operations.
I also recognize that BOP has limited resources to monitor inmates on home confinement and that the U.S. Probation Office is unable to monitor large numbers of inmates in the community. I therefore authorize BOP to transfer inmates to home confinement even if electronic monitoring is not available, so long as BOP determines in every such instance that doing so is appropriate and consistent with our obligation to protect public safety.
Given the speed with which this disease has spread through the general public, it is clear that time is of the essence. Please implement this Memorandum as quickly as possible and keep me closely apprised of your progress.
II. PROTECTING THE PUBLIC
While we have a solemn obligation to protect the people in BOP custody, we also have an obligation to protect the public. That means we cannot simply release prison populations en masse onto the streets. Doing so would pose profound risks to the public from released prisoners engaging in additional criminal activity, potentially including violence or heinous sex offenses.
That risk is particularly acute as we combat the current pandemic. Police forces are facing the same daunting challenges in protecting the p1;1blitchat we face in protecting our inmates. It is impossible to engage in social distancing , hand washing, and other recommend steps in the middle of arresting a violent criminal. It is thus no surprise that many of our police officers have fallen ill with COVID-19, with some even dying in the line of duty from the disease. This pandemic has dramatically increased the already substantial risks facing the men and women who keep us safe, at the same time that it has winnowed their ranks while officers recover from getting sick, or selfquarantine to avoid possibly spreading the disease.

9

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 10 of 224 Page ID

Memorandum from the Attorney General #:522

Page 3

Subject: Increasing Use of Home Confinement at Institutions Most Affected by COVID-19

The last thing our massively over-burdened police forces need right now is the indiscriminate release of thousands of prisoners onto the streets without any verification that those prisoners will follow the laws when they are released , that they have a safe place to go where they will not be mingling with their old criminal associates , and that they will not return to their old ways as soon as they walk through the prison gates. Thus, while I am directing you to maximize the use of home confinement at affected institutions , it is essential that you continue making the careful, individualized determinations BOP makes in the typical case. Each inmate is unique and each requires the same individualized determinations we have always made in this context.
I believe strongly that we should do everything we can to protect the inmates in our care, but that we must do so in a careful and individuali zed way that remains faithful to our duty to protect the public and the law enforcement officers who protect us all.

10

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 11 of 224 Page ID #:523
EXHIBIT B
11

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 12 of 224 Page ID
Interim Guidance on Mana#g:5e24ment of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities

This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of March 23, 2020.
The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the following CDC website periodically for updated interim guidance: https://www.cdc.gov/coronavirus/2019-ncov/index.html.
This document 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. Recommendations may need to be revised as more information becomes available.

In this guidance
• Who is the intended audience for this guidance?
• Why is this guidance being issued?
• What topics does this guidance include?
• Definitions of Commonly Used Terms
• Facilities with Limited Onsite Healthcare Services
• COVID-19 Guidance for Correctional Facilities
• Operational Preparedness
• Prevention
• Management
• Infection Control
• Clinical Care of COVID-19 Cases
• Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
• Verbal Screening and Temperature Check Protocols for Incarcerated/ Detained Persons, Staff, and Visitors

Who is the intended audience for this guidance?
This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e., US Immigration and Customs Enforcement and US Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings.
This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance.

CS 316182-A  03/27/2020

cdc.gov/coronavirus
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Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
• In most cases, incarcerated/detained persons are not permitted to leave the facility.
• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.
• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
• Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles.
• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.
• Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.
• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
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This guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
√ Operational and communications preparations for COVID-19
√ Enhanced cleaning/disinfecting and hygiene practices
√ Social distancing strategies to increase space between individuals in the facility
√ How to limit transmission from visitors
√ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages
√ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors
√ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited
√ Healthcare evaluation for suspected cases, including testing for COVID-19
√ Clinical care for confirmed and suspected cases
√ Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting—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. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
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Confirmed vs. Suspected COVID-19 case—A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case.
Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed.
Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although 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. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication.
Staff—In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators.
Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
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The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/ detained persons and staff, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
√ Develop information-sharing systems with partners.
ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility.
ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses.
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ο

#:529 Communicate with other correctional facilities in the same geographic area to share information

including disease surveillance and absenteeism patterns among staff.

ο Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.

ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.

√ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19.
ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/ or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting.
ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care.
ο Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity.
ο Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes.

√ Coordinate with local law enforcement and court officials.
ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission.
ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.

√ Post signage throughout the facility communicating the following:
ο For all: symptoms of COVID-19 and hand hygiene instructions
ο For incarcerated/detained persons: report symptoms to staff
ο For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor.
ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.

Personnel Practices
√ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staff to stay home when sick. ο If these policies do not encourage staff to stay home when sick, discuss with the contract company. ο Determine which officials will have the authority to send symptomatic staff home.

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√ Identify staff whose duties would allow them to work from home. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission. ο Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so.
ο Put systems in place to implement work from home programs (e.g., time tracking, etc.).
√ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals.
ο Allow staff to work from home when possible, within the scope of their duties.
ο Identify critical job functions and plan for alternative coverage by cross-training staff where possible.
ο Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels.
ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages.
√ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19.
√ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
√ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health.
√ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
√ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs
ο Tissues
ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
ο Hand drying supplies
ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions)
ο Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19
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ο

#:531 Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and

disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information,

including recommendations for extending the life of all PPE categories in the event of shortages, and

when face masks are acceptable alternatives to N95s.

ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated

√ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers.
ο See CDC guidance optimizing PPE supplies.

√ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.

√ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.)
ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.

√ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.

√ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.

Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.

Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.

Operations
√ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities
√ Communicate with the public about any changes to facility operations, including visitation programs.

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√ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ Implement lawful alternatives to in-person court appearances where permissible.
√ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms.
√ Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
√ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
√ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs). ο Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
√ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
√ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
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Hygiene

#:533

√ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).

√ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use.
ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
ο Avoid touching your eyes, nose, or mouth without cleaning your hands first.
ο Avoid sharing eating utensils, dishes, and cups.
ο Avoid non-essential physical contact.

√ Provide incarcerated/detained persons and staff no-cost access to: ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing. ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal

√ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.

√ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.

Prevention Practices for Incarcerated/Detained Persons
√ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below).
ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):
 Require the individual to wear a face mask.
 Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE.
 Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.)
 Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.

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ο

#:534 If an individual is a close contact of a known COVID-19 case (but has no COVID-19

symptoms):

 Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.)

 Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care.

√ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include:
ο Common areas:  Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area)
ο Recreation:  Choose recreation spaces where individuals can spread out
 Stagger time in recreation spaces
 Restrict recreation space usage to a single housing unit per space (where feasible)
ο Meals:  Stagger meals
 Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table)
 Provide meals inside housing units or cells
ο Group activities:  Limit the size of group activities
 Increase space between individuals during group activities
 Suspend group programs where participants are likely to be in closer contact than they are in their housing environment
 Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out
ο Housing:  If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)
 Arrange bunks so that individuals sleep head to foot to increase the distance between them
 Rearrange scheduled movements to minimize mixing of individuals from different housing areas
ο Medical:  If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.
 Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.

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√ Communicate clearly and frequently with incarcerated/detained persons about changes to their daily routine and how they can contribute to risk reduction.
√ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
√ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
√ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staff at the first sign of illness
√ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staff
√ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staff home who do not clear the screening process, and advise them to follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.
√ Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staff develop a fever, cough, or shortness of breath while at work: immediately put on a face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
√ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
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√ When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
√ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
Prevention Practices for Visitors
√ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staff performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening.
√ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas.
√ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy.
√ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors.
√ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
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If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits.
√ Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
Operations
√ Implement alternate work arrangements deemed feasible in the Operational Preparedness section.
√ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
√ When possible, arrange lawful alternatives to in-person court appearances.
√ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.)  If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.  If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.  Before releasing an incarcerated/detained individual with COVID-19 symptoms to a communitybased facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
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√ Coordinate with state, local, tribal, and/or territorial health departments. ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. ο When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
√ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.)
√ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
√ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
√ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Confirmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
√ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
√ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible.
√ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
√ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
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ο If cohorting is necessary:

#:539

 Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.

 Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.

 Ensure that cohorted cases wear face masks at all times.

√ In order of preference, individuals under medical isolation should be housed:
ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully
ο Separately, in single cells with solid walls but without solid doors
ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above.
ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above.
ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.)
ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above.
ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)

If the ideal choice does not exist in a facility, use the next best alternative.

√ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.)
ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
√ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
√ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.

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√ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
√ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria.
For individuals who will be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart
For individuals who will NOT be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  At least 7 days have passed since the first symptoms appeared
For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ο The individual has had no subsequent illness
√ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
Cleaning Spaces where COVID-19 Cases Spent Time
Thoroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases.
ο Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
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√ Hard (non-porous) surface cleaning and disinfection ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection.
ο For disinfection, most common EPA-registered household disinfectants should be effective. Choose cleaning products based on security requirements within the facility.  Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).  Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
√ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:  If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.  Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces.
√ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present.  Follow the manufacturer’s instructions for all cleaning and disinfection products.  Consider use of wipeable covers for electronics.  If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
√ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
√ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after.
ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air.
ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
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ο

#:542 Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible,

consider using a bag liner that is either disposable or can be laundered.

√ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.

Quarantining Close Contacts of COVID-19 Cases

NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.

√ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines).
ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.

√ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they:
ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR
ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)

Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).

√ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible.

√ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options.
ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately.
ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place.
ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.

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ο

#:543 If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day

quarantine clock has started.

√ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.)

√ In order of preference, multiple quarantined individuals should be housed:
ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully
ο Separately, in single cells with solid walls but without solid doors
ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions
ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door
ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.)
ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell.
ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals.
ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements

(NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)

√ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1):
ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals).
ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space.
ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason.
ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks.

√ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1).
ο Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.

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√ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.)
ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
√ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period.
ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
√ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
√ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
√ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after.
ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air.
ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care.
√ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
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√ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
√ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
√ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
√ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check.
√ Consider additional options to intensify social distancing within the facility.
Management Strategies for Staff
√ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff.
√ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for definition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staff.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/ detained persons may have with confirmed or suspected COVID-19 cases.
√ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
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ο

#:546 Implement the above guidance as fully as possible within the correctional/detention context. Some

of the specific language may not apply directly to healthcare settings within correctional facilities

and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted

to reflect facility operations and custody needs.

ο Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).

√ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).

√ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.

Clinical Care of COVID-19 Cases
√ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms.
ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital.
ο The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.

√ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.

√ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask.
ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.

√ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza).

√ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide.

√ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.

Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
√ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.

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ο

#:547 Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95s)

for their work responsibilities have been medically cleared, trained, and fit-tested in the context of

an employer’s respiratory protection program.

ο For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.

√ Ensure that all staff are trained to perform hand hygiene after removing PPE.
√ If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE.

√ Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency.

√ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response.
ο N95 respirator

See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staff anticipate contact with infectious aerosols from a COVID-19 case. ο Face mask ο Eye protection—goggles or disposable face shield that fully covers the front and sides of the face ο A single pair of disposable patient examination gloves

Gloves should be changed if they become torn or heavily contaminated.
ο Disposable medical isolation gown or single-use/disposable coveralls, when feasible
 If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label.
 If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staff.

√ Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website:
ο Guidance in the event of a shortage of N95 respirators
 Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk.
ο Guidance in the event of a shortage of face masks
ο Guidance in the event of a shortage of eye protection
ο Guidance in the event of a shortage of gowns/coveralls

24
35

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 36 of 224 Page ID #:548
Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional Facility during
the COVID-19 Response

Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gloves

Gown/ Coveralls

Incarcerated/Detained Persons

Asymptomatic incarcerated/detained persons (under Apply face masks for source control as feasible based on local supply, quarantine as close contacts of a COVID-19 case*) especially if housed as a cohort

Incarcerated/detained persons who are confirmed or

suspected COVID-19 cases, or showing symptoms of

–



–

–

–

COVID-19

Incarcerated/detained persons in a work placement

handling laundry or used food service items from a

–

–

–





COVID-19 case or case contact

Incarcerated/detained persons in a work placement Additional PPE may be needed based on

cleaning areas where a COVID-19 case has spent time the product label. See CDC guidelines for





more details.

Staff

Staff having direct contact with asymptomatic incarcerated/detained persons under quarantine as close contacts of a COVID-19 case* (but not performing temperature checks or providing medical care)

–

Face mask, eye protection, and gloves as local supply and scope of duties allow.

–

Staff performing temperature checks on any group

of people (staff, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic

–

quarantined persons









Staff having direct contact with (including transport)

or offering medical care to confirmed or suspected

**

COVID-19 cases (see CDC infection control guidelines)







Staff present during a procedure on a confirmed

or suspected COVID-19 case that may generate respiratory aerosols (see CDC infection control



–







guidelines)

Staff handling laundry or used food service items from a COVID-19 case or case contact

–

–

–





Staff cleaning an area where a COVID-19 case has

Additional PPE may be needed based on

spent time

the product label. See CDC guidelines for





more details.

* If a facility chooses to routinely quarantine all new intakes (without symptoms or known exposure to a COVID-19 case) before integrating into the facility’s general population, face masks are not necessary.
** A NIOSH-approved N95 is preferred. However, based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff.

25
36

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 37 of 224 Page ID #:549
Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staff, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. √ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include
the following questions: ο Today or in the past 24 hours, have you had any of the following symptoms?  Fever, felt feverish, or had chills?  Cough?  Difficulty breathing? ο In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
√ The following is a protocol to safely check an individual’s temperature: ο Perform hand hygiene ο Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ο Check individual’s temperature ο If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ο Remove and discard PPE ο Perform hand hygiene
26
37

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 38 of 224 Page ID #:550
EXHIBIT C
38

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 39 of 224 Page ID #:551
<@fficotf f~t .!ttorntl_<?irneral
lmla.s~ingto'nID, Q. I2. 05.30

March 26 , 2020

w~ MEMORANDUM FOR DIRECTOR OF BUREAU PRISONS

FROM:

THE ATTORNEYGENERAL

SUBJECT:

Prioritization of Home Confinement As Appropriate in Response to COV ID-1 9 Pandemic

Thank you for your tremendous service to our nation during the present crisis. The cu1Tent situat ion is challenging for us all, but I have great confidence in the abi lity of the Bureau of Prisons (BOP) to perform its critical mission during these difficult times. We have some of the best-run prisons in the world and l am confident in our abi lity to keep inmates in our prisons as safe as possible from the pandemic cur rent ly sweeping across the globe. At the same time, there are some at-risk inmates who are non-violent and pose minimal likelihood of recidivism and who might be safer serving their sentences in home confinement rathe r than in BOP facilities. I am issuing this Memorandum to ensure that we utilize home confinement , where appropriate, to protect the health and safety of BOP personnel and the people in ou r custody.
I. TRANSFER OF INMATES TO HOME CONFINEMENT WHERE APPROPRIATE TO DECREASE THE RISKS TO THEIR HEAL TH
One of BO P' s tools to manage the prison population and keep inmates safe is the ability to grant certa in eligibl e prisoners home confinement in certain circumstances. I am hereby directing you to prioritize the use of your variou s statutory auth orities to grant home confinement for inmates seeking transfer in connection with the ongoing COV ID-1 9 pandemic. Many inmates will be safer in BOP facil ities where the population is controlled and there is ready acces s to doctors and medical care. But for some eligible inmates , home confinement might be more effective m protecting their health.
In assessing which inmates should be granted home confinement pursuant to thi s Memorandum , you are to consider the tota lity of circumstances for each individual inmate , the statutory requirements for home confinement , and the following non -exhaustive list of discretionary factors:
• The age and vulnerabi lity of the inmate to COV ID-1 9, in accordance with the Centers for Disease Contro l and Prevention (CDC) guide lines;

39

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 40 of 224 Page ID

#:552 Memorandum from the Attorne y General

Page 2

Subje ct: Department of Justice COVID - 19 Hoarding and Price Gouging Task Force

• The securit y leve l of the facility current ly holdin g the inmate, w ith priority given to inmate s residing in low and minimum security facilities ;
• The inmate ' s conduct in prison , with inmate s who have engaged in violen t or gangrelated activity in prison or who have incurred a BOP vio lation w ithin the last year not rece ivin g priorit y treatment und er this Memorandum;
• The inmate' s score under PATT ERN , with inmates who have anything above a minimum score not receiving priorit y treatment under this Memorandum;
• Whether the inmat e has a demon strated and verifiable re-entry plan that will prevent recidivism and max imize public safety , includin g verification that the conditions under which the inmat e would be confined upon release would prese nt a lower risk of contracting COV ID- 19 than the inmate would face in his or her BOP fac ility;
• The inmat e' s crime of convicti on, and assessment of the dan ger posed by the inmate to the community. Som e offenses, such as sex offenses , will render an inm ate ineligible for home detention . Other seriou s offen ses should we igh more heavily against consideration for home detention .
In add ition to considering these factors, before granting any inmate discretionary release, the BOP Medical Director , or someo ne he designates , will , based on CDC guidance , make an assessment of the inmate's risk factors for seve re COV ID- 19 illness , risks of COVID- 19 at the inmate's prison facility, as well as the risks of COV ID-19 at the locat ion in which the inmate seeks hom e confinement. We shou ld not grant home confin ement to inmates when doin g so is likely to increase their risk of contracting COVID- 19. You should grant hom e confinement only when BOP has determined - based on the totality of the circum stance s for eac h indiv idual inmate- that transfer to hom e confinement is likel y not to increase the inmat e' s risk of contr acting COV ID-19 .
II. PROTECTING THE PUBL IC
Whi le we have an ob ligation to protect BOP personnel and the people in BOP custody, we also have an ob ligation to protect the publ ic. That means we cannot take any risk of tran sferrin g inmate s to home confinement that will contribute to the spread of COVID -19, or put the public at risk in other ways. I am ther efore direc ting you to place any inmate to whom you grant home confinement in a mandat ory 14-day quarantine period before that inmate is discharged from a BOP facility to hom e confin eme nt. Inmates transfe 1Ted to home confineme nt under this prioriti zed process should also be subje ct to location monitoring serv ices and , where a court orde r is entered, be subject to supervi sed release.
We must do the best we can to minimi ze the risk of COV ID-19 to those in our custody, while also minimizing the risk to the public. I thank you for your serv ice to the country and ass istance in impleme nting this Memorandum.

40

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 41 of 224 Page ID #:553
EXHIBIT D
41

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 42 of 224 Page ID #:554

Correctional Programs Division
MEMORANDUMFOR CHIEF E~

U.S. Department ofJustice Memorandum Fede ral Bureau of Prisons
CentralOffice 320 First Street, N.W Washington, DC20534
April 22 , 2020

FROM: SUBJECT :

.-=-~~.:::...1.an, Acting Assistant

Correctional

Programs Division

Digitall y signed by HUGH
HUGH HURWITZHURWITZ

Date: 2020.04.22 14:17:15-04'00'

Hugh J . Hurwitz, Assistant

Director

Reentry Services Division

Home Confinement

Director

In an effort to protect the health and safety of staff and

inmates during the COVID- 19 pandemic , it has b~come imperative

to review at - risk inmates for placement on home confinement .

This memorandum provides additional

guidance and direction

and

rescinds the memorandum dated April 3 , 2020.

It should be noted that for public safety reasons, in accordance with the March 26 , 2020, memorandum from the Attorney General , and to ensure BOP is deploying its limited resources in the most effective manner, the BOP is currently assessing the following factors to ensure inmates are suitable for home confinement:

• reviewing the inmate's institutional the last twelve months;

discipline

history for

• ensuring the inmate has a verifiable

release plan ;

• verifying the inmate ' s primary or prior offense history does not include violence, a sex offense, or terrorism related ;

• confirming the inmate does not have a current detainer;

• reviewing

the security

leve l of the

housing the inmate , with priority given

in Low and Minimum security facilities;

facility

currently

to inmates residing

• reviewing the inmate ' s score under PATTERN, with inmates

who have anything above a minimum score not receiving

priority

treatment;

42

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 43 of 224 Page ID #:555

• and reviewing the age and vulnerability

of the inmate to

COVID- 19 , in accordance with the CDC gu idelines .

In addit i on , and in order to prioritize

its limi ted resources,

BOP has generally prioritized

for home confinement those inmates

who served a certain portion of their sentences,

or who only

have a relatively

short amount of time remaining on those

sentences.

While these priority

factors are subject to

deviation in the BOP' s discretion

in certain circumstances

and

are subject to revision as the situation

progresses , at this

time, the BOP is prioritizing

for consideration

those inmates

who either :

• have served 50% or more of thei r sentences,
• or have 18 months or less remaining on their sentences and have served 25% or more of their sentences .

Additionally,

pregnant inmates should be considered for

viability

of placement in a community program to include

and Infants Together (MINT) programs and home confinement

Mothers .

All inmates must be reviewed by the SIS Department at the

referring

facility

to determine if the inmate has engaged in

violent or gang - related activity in prison.

Additionally,

inmates must have maintained clear conduct for the past 12

months to be eligible.

Referrals must be made based on appropriateness

for home

confinement.

Consideration

should be given to whether the

inmate has demonstrated

a verifiable

reentry plan that will

prevent recidivism and maximize public safety , including

verification

that the conditions which the inmate would be

confined upon release would present a lower risk of contracting

COVID-19 than the inmate would face in his or her BOP facility.

All referrals following :

should clearly document the review of the

• Unit Team staff will screen each inmate identified

to

determine if they have a viable release residence and ask

questions specific to :

o Specific type of release residence

(House/Apt/Group

home, etc.),

o Who will the inmate live with,

o Any health concerns of individuals

in the residence,

o Contact phone numbers should he/she be placed on home

confinement,

o Transportation

plan as to how the inmate will be

transferred

to the home confinement location .

43

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 44 of 224 Page ID #:556

All the above information

must be clearly documented on the

referra l for home confinement prior to submission to the RRM

Office .

Inmates determined

screened by Health

the inmate requires

the next 90 days .

required,

then :

to have a viable release residence will be

Services and a determination

made as to if

frequent and on - going medical care within

If frequent and on-going medical care is

• Hea l th Services staff will coordinate

with Naphcare and

RRMBs Health Services Specialists

to determine if the

inmate ' s medical needs can be met in the community at this

time . Naphcare will set up follow - up care prior to the

inmate ' s transfer.

An inmate must transfer with AT LEAST 90

days of any prescribed

medications .

• If the inmate ' s medical needs cannot be met in the

community at th is time, the inmate will remain at the BOP

facility .

• If the inmate does not require frequent and on-going

medical care, a referral

to the community will be

processed .

• All the above information

must be clearly documented on the

referral

for home confinement prior to submission to the

RRM Office.

Once an inmate is referred for home confinement COVID-19 pandemic , the Case Management Activity CV-COM-REF should be loaded in SENTRY.

due to the (CMA) assignment

If the Warden determines there is a need to refer an inmate for

placement in the community due to risk factors, or as a

population management strategy during the pandemic ; however,

the inmate does not meet the above listed criteria , a packet

should be forwarded to the Correctional

Programs Division for

further review. Packets should be sent to BOP- CPD/Assistant

Director from the Warden ' s general mailbox.

Case Management Coordinators

must track all inmates determined

to be ineligible

for home confinement or the Elderly Offender

Pilot Program a nd enter the appropriate

denial code in SENTRY.

Reports outlining reason for denial must be reported to BOP-

CPD/Unit Management on a weekly basis by Monday at 2 : 00 p.m.

EST.

If an inmate does not currently qualify for home confinement under BOP criteria , they should be reviewed for placement in a

44

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 45 of 224 Page ID #:557

Resident i al Reent r y Center and for home confinement at a later

date , in accordance with applicable

laws and BOP po l icies .

If you have any questions , please contact David Brewer , Acting

Senior Deputy Assistant

Directo r, Correctional

Programs

Division , at (202)353 - 3638 or Alix McLearen , Senior Deputy

Assistant

Director , Reentry Services Division , at (202)514 - 4919.

45

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 46 of 224 Page ID #:558
EXHIBIT E
46

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 47 of 224 Page ID #:559
U.S. Department of Justice Memorandum Federal Bureau of Prisons

CorrectionalProgramsDivision

Central Office 320 FirstStreet. N.W Washington, DC20534
May 8, 2020

MEMORANDUMFEOR CHIEF EXECUTIVE OFFICERS

FROM:

And

t e vol.l.s ian , Acting Assistant

Corr e ctional Prog r ams Divi s ion

HUGHHURWITZDigitally signed by HUGH HURWITZ Date: 2020 .05.08 15:57:01 -04 '00'

Hugh J. Hurwitz, Assistant Reent r y Services Division

Director

Director

SUBJ ECT :

Home Confinement

In our continued effort to protect the health and safety of

staff and i nmates during the COVID-19 pandemic, i t is imperative

to review at - r i sk inmates for placement on home confinement .

Thi s memorandum provides updated guidance and direction

and

rescinds the memorandum dated April 22, 2020 .

In accordance with the March 26, 2020, Memorandum, the BOP is deploying its l imited resources i n the manner, the following factors must be assessed to are suitable for home confinement :

and to ensure most effective ensure inmates

• Reviewing the inmate's institutiona

l discipline

history for

the last twelve months (Inmates who have received a 300 or

400 series incident report in the past 12 months may be

referred for placement on Horne Confinement, if in the

Warden ' s judgement such placement does not create an undue

risk to the community.)

• Ensuring the inmate has a verifiable

release plan;

• Verifying the inmate's primary offense is not violent,

a

sex offense, or terrorism related;

• Con firming the inmate does not have a current de t ainer .

47

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 48 of 224 Page ID #:560
• Pr i ority should be given to inmates residing in Low and
Minimum security facilities;

• Inmates who have anything above a Minimum score not

receiving priority

treatment;

• And the age and vu l nerability

of the inmate to COVID-19, in

accordance with the CDC guidelines

Home Conf i nement is generally prioritized

for those inmates who

have served a certain portion of the ir sentence, or who only

have a re l atively short amount of time remaining on their

sentence.

While these prior i ty factors are subject to deviation

in certain circumstances

and are subject to revision as th e

situation

progresses,

we are current l y prioritizing

for

consideration

those inmates who either:

• have served 50% or more of their sentence, • or have 18 months or less remaining on their sentence and
have served 25% or more of their sentence.

If the Warden determines there is a need to refer an inmate for

placement in the community due to COVID- 19 risk factors who is

outside of the criteria

listed above . Then, the Warden should

forward the Home Confinement referra l to the Correctional

Programs Division in Central Office for further review.

All inmates must be reviewed by the SIS Department at the

referring

facility

to determine if the inmate has engaged in

violent or gang-related

activity

in prison . Inmates who ha v e

recei v ed a 300 or 400 series incident report in the past 12

months may be referred for placement on Home Confinement .

Referrals must be made based on appropriateness

for ho me

confinement.

Consideration

sh o uld be given to whether the

inmate has a verifiable

reentry plan, which will prevent

recidivism

and maximize public safety; including verification,

the conditions under which the inmate would be confined upon

release would present a lower risk of contracting

COVID- 19.

All referrals following:

should clearly document the review of the

• Specific type of release residence

(House/Apt/Group

home

etc . ),

• Who inmate will b e living with,

• Any health concerns of individuals

in th e residence,

• Contact phone numbers of the inmate should he/she be placed

on Home Confinement,

48

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 49 of 224 Page ID

• Transportation

#:561
plan as to how the inmate will be

transferred

to the Home Confinement location.

Al l the above information

must be documented on the referral

for

Home Confinement prior to submission to the RRM Office.

Inmates will be screened inmate requires frequent next 90 days, if frequent then:

by Health Services to determine if the and on-going medical care within the
and on - going medical care is required

• Health Services staff will coordinate

with Naphcare and

RRMBs Health Services Specialists

to determine if the

inmates' medical needs can be met in the community at this

time . Naphcare will set up follow up care prior to

transfer . The inmate must transfer with AT LEAST 90 days of

any prescribed

medications.

• If inmates' medical needs cannot be met in the community, then the inmate will remain at BOP Facility.

• If inmates do not require frequent and on - going medica l

care then the referral

will be processed .

• All the above information

must be clearly documented on the

referral

for Home Confinement prior to submission to the

RRM Office.

• Medical staff must add COVID specific risk factors to the

medical (BEMR) exit summary.

Pregnant inmates should be considered

for

in a community program to include Mothers

(MINT) programs and Home Confinement .

viability

of placement

and Infants Together

I f an inmate is referred for home con f inement due to the COVID-

19 pandemic, the Case Management Activity

(CMA) assignment CV-

COM-REF should be l oaded .

Case Management Coordinators

must track all inmates determined

to be ineligible

for Home Confinement or the Elderly Offender

Pilot Program and enter the appropriate

denial code in SENTRY.

Reports outlining

the reason for denial must be reported to BOP-

CPD/Unit Management on a weekly basis by Monday at 2pm EST.

If you have any questions,

please

Senior Deputy Assistant

Director,

Division.

contact David Brewer, Acting

Correctional

Programs

49

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 50 of 224 Page ID #:562
EXHIBIT F
50

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa5g1eo5f 118o9f 22P4agePaIDge#:I2D76 #:563
EXHIBIT 1
51

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa5g2eo5f 218o9f 22P4agePaIDge#:I2D77 #:564

1

DECLARATION OF KIARA CARROR

2

I, Kiara Carror, am over the age of 18 and fully competent to declare as

3 follows:

4

1. My brother is Yonnedil Carror Torres. He is currently incarcerated at

5 USP Lompoc in Lompoc, California. His BOP Register Number is 41928-069.

6

2. My brother is 24 years old, and has suffered from chronic asthma since

7 he was a child.

8

3. I periodically converse with my brother through telephone and letters.

9 From about mid-April until May 9, the prison would not allow any prisoners to use

10 the telephone, and my brother could only reach me through letters. He has not been

11 able to get in direct contact with any lawyers. He confirmed for me over the phone

12 that he consented to being a party to this lawsuit. Through phones and letters, my

13 brother has described to me how he almost lost his life at Lompoc.

14

4. My brother currently resides in the medium-security prison at USP

15 Lompoc. He lives in a tiny cell. The cells in his block are normally single

16 occupancy, but currently each cell houses two prisoners. He shares a single toilet in

17 his cell with his cellmate. Many prisoners in his block are visibly sick.

18

5. On April 24, 2020, we received a letter from my brother telling us that

19 he was extremely sick and was concerned that he may have COVID-19.

20

6. On April 30, 2020, we received a letter from my brother’s cellmate,

21 informing us that my brother had asked the guards for medical assistance for five

22 days, but was completely ignored. He suffered from fever, diarrhea, body aches, and

23 eventually went into acute respiratory failure and collapsed in his cell.

24

7. Every inmate in his block began to bang their cell doors in unison to

25 demand that my brother receive medical attention. Only then was my brother rushed

26 to a hospital and put into a medically-induced coma. Only then was he tested for

27 COVID-19. He tested positive and was intubated and put on a ventilator.

28

8. On May 1, 2020, I contacted the prison and was only told that my

3649759.1

DECLARA5T2ION OF KIARA CARROR

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa5g3eo5f 318o9f 22P4agePaIDge#:I2D78 #:565

1 brother was no longer at the hospital. They would not give me any other information

2 about his whereabouts. On May 4, 2020, we belatedly received a letter from my

3 brother saying that he had been taken to the hospital and was waiting to be put on a

4 ventilator. We had no way of knowing whether he was even still alive.

5

9. On May 9, 2020, I finally received a phone call from my brother. His

6 voice sounded hoarse and unfamiliar. He said that a doctor had told him that he

7 suffered acute lung damage from COVID-19 due to his asthma, and his lung

8 capacity was severely deteriorated as a result. After my brother regained

9 consciousness, they briefly placed him in a quarantine unit and then returned him to

10 his original cell.

11

10. My brother has seen other sick prisoners and their experiences have

12 been similar. He says the prison allows people who are infected with COVID-19 to

13 hit “rock bottom” before any testing or treatment is offered.

14

11. I submitted a request for compassionate release to the Warden of USP

15 Lompoc on my brother’s behalf on May 11, 2020, but have not received a response.

16

12. If transferred to home confinement, my brother would stay with me at

17 my home in 420 Bay Leaf Dr Kissimmee, FL 34759. He would have access to

18 doctors familiar with his medical history.

19

I declare under penalty of perjury under the laws of the United States of

20 America that the foregoing is true and correct.

21

Executed on May 14, 2020, at Kissimmee, FL

22

23

24

25 Kiara Carror
26

27

28

3649759.1

2 DECLARA5T3ION OF KIARA CARROR

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 54 of 224 Page ID #:566
EXHIBIT G
54

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa5g4eo5f 518o9f 22P4agePaIDge#:I2D79 #:567
EXHIBIT 2
545

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DECLARATION OF JOANNA MUNSON PERALES

2

I, Joanna Munson Perales, am over the age of 18 and fully competent to

3 declare as follows:

4

l. I am an attorney for the Office of the Federal Public Defender for the

5 District of Columbia. My New York Bar Number is 4591897 . I have represented

6 Vincent Reed in connection with a motion for compassionate release before the

7 United States District Court for the District of Columbia.

8

2. Mr. Reed is 53 years old and currently incarcerated at USP Lompoc.

9 His BOP Register Number is 27173-016. Mr. Reed has hypertension , and has

10 struggled with mental health issues throughout his incarceration .

11

3. Mr. Reed ' s son, Vincent Reed Jr. , has ju venile diabetes , is fully blind,

12 and is experiencing kidney failure at the age of 30; Mr . Reed may be the only viable

13 candidate to donate a kidney to his son ; and Vincent Jr. ' s elderly grandmother , who

14 is currently his only caregi ver, cannot continue his care alone.

15

4. During a legal call on May 13, 2020, I spoke to Mr. Reed regarding this

16 class action litigation. Mr. Reed confirmed to me that he wanted to participate as a

17 named plaintiff.

18

5. The following is information Mr. Reed conveyed to me over the course

19 of several legal calls. Other than what Mr. Reed told me , I have no independent

20 personal knowledge of this information.

21

6. On March 27 or 28, 2020 , Mr . Reed began exhibiting symptoms of

22 COVID-19. On March 30, 2020 , Mr. Reed was tested for COVID-19. After the test ,

23 Mr. Reed was immediatel y placed in the Special Housing Unit (SHU , or solitary

24 confinement) while he awaited results. On March 31, 2020 , Mr. Reed was

25 confirmed to be positi ve for COVID-19 , and saw a doctor for a temperature and

26 symptom check. Afterwards, Mr. Reed was left in the SHU with no medical

27 treatment. Mr. Reed would not see a doctor or any medical staff again until April 7,

28 2020.

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7. After several days in the SHU, Mr. Reed was moved to dormitory Unit

2 H along with other prisoners who had tested positive for COVID-19. Unit H was

3 one of two dormitories that had been closed over three years ago due to mold

4 contamination. Unit H had not been cleaned before the prisoners arrived, and

5 conditions were extremely unsanitary. The Unit was empty aside from some

6 mattresses that guards brought in.

7

8. For days after Mr. Reed's arrival, no treatment or medicine was made

8 available to anyone in Unit H, aside from daily temperature checks. There was no

9 soap, and the prisoners were not allowed to shower.

10

9. On April 14, 2020, Mr. Reed was returned to the general population at

11 USP Lompoc prison. The prison is currently on lockdown, with prisoners mostly

12 confined to their cells. Mr. Reed was not tested again for COVID-19, and only

13 received an in-cell evaluation after his return to the general population ..

14

10. Mr. Reed and others in the general population do not have access to

15 disinfectants or hand sanitizer, and are only given one small bar of soap each week.

16 Once they run out of soap, they cannot purchase any more because the commissary

17 is closed.

18

11. Many of the prisoners try to avoid saying anything even when they feel

19 sick, because they have seen others like Mr. Reed being sent to the SHU. They

20 simply stay quietly in their cells until they are obviously too ill to stand, eat, or

21 breathe easily.

22

12. Other prisoners just want to leave their cells and do not want to socially

23 distance. They have been under lockdown for a long time and are getting restless.

24

13. If transferred to home confinement, Mr. Reed will return to

25 Washington D.C. to self-quarantine at his brother's residence.

26

I declare under penalty of perjury under the laws of the United States of

27 America that the foregoing is true and correct.
28

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Executed on Ma y 15, 2020 , at Che verly, Maryland.

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EXHIBIT 3
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1

DECLARATION OF GRACIELA ZAVALA-GARCIA

2

I, Graciela Zavala-Garcia, am over the age of 18 and fully competent to

3 declare as follows:

4

1. My name is Graciela Zavala-Garcia. I am a practicing attorney,

5 licensed in the State of California for 36 years, with California State Bar No.

6 113901.

7

2. My son’s name is Felix Samuel Garcia. He is 36 years old and has been

8 incarcerated since September, 2015. He is currently in Lompoc, California for the

9 past three years. He was at FCI Lompoc for most of that time, but on May 7, 2020,

10 he was moved to USP Lompoc. My son has a release date of November 6, 2020, and

11 a release date to a “halfway house” for July 7, 2020. His BOP Register Number is

12 46693-298.

13

3. Sometime in March 2020, FCI Lompoc went into lockdown and

14 beginning on April 17, 2020, my son was denied all access to telephones, email, and

15 commissary. Until May 12, 2020, the only way I could communicate with him was

16 through letters. On May 12, 2020, I received one phone call from my son, and he

17 told me that he wanted to participate in this lawsuit as a named plaintiff. The

18 following information is based on what my son has told me through that call and

19 through his letters.

20

4. In early May, my son tested negative for COVID-19. A few days later,

21 on May 7, 2020, he was moved out of Unit J at FCI Lompoc and to a makeshift

22 prisoner housing unit set up in a warehouse at USP Lompoc. The warehouse has

23 multiple small cells that are occupied by two prisoners each. He shares a toilet and

24 sink with his cellmate. The warehouse is on total lockdown, and my son is kept in

25 his cell almost twenty-four hours a day.

26

5. The conditions at the warehouse are extremely unsanitary. Since

27 moving to the warehouse, my son has not been able to shower or change into clean

28

3649384.1

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1 clothes. My son has been forced to wet his body with water from his sink in a

2 desperate attempt to maintain hygiene.

3

6. In late April, while still at FCI Lompoc, my son received a single mask.

4 He has had to reuse that mask since then. My son has not been given access to hand

5 sanitizer, and says that there is currently a shortage of soap in the warehouse where

6 he lives.

7

7. My son says that other prisoners have been retaliated against for

8 expressing concerns about their safety to the warden. My son also tells me that some

9 prisoners in at FCI Lompoc are being held past their release dates due to the total

10 lockdown.

11

8. On May 11, 2020, my son submitted a request for home confinement to

12 the warden at USP Lompoc through his attorney. We have not yet received a

13 response.

14

8. My son’s current release date is November 6, 2020. He is scheduled to

15 go to a halfway house in July 2020. I do not understand why the BOP would

16 continue to place him and others at risk in an overcrowded prison, rather than

17 transfer him to home confinement just two months before he was scheduled for

18 release to a halfway house.

19

9. If transferred to home confinement, my son would self-quarantine at

20 my house in Imperial Beach, California, with his father and me. He would have

21 access to doctors who are familiar with his medical history.

22

I declare under penalty of perjury under the laws of the United States of

23 America that the foregoing is true and correct.

24

25

Executed on May 14, 2020, at Imperial Beach, California

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EXHIBIT 4
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1

DECLARATION OF VERNA WEFALD

2

I, Verna Wefald, am over the age of 18 and fully competent to declare as follows:

3

1. I am an attorney licensed to practice law in the State of California (Bar

4 No. 127104). I make this declaration on behalf of my client Andre Brown, Reg.

5 No. 54460-097, who is incarcerated at the United States Penitentiary in Lompoc,

6 California. Mr. Brown, who is 55 years old (DOB 7/13/65) and a United States citizen by

7 birth, is learning disabled and illiterate. He therefore asked that I make this request on his

8 behalf to join a lawsuit to be filed by the ACLU regarding the COVID-19 emergency at

9 various federal correctional institutions, including Lompoc.

10

2. I was appointed by the Ninth Circuit Court of Appeals to represent Andre

11 Brown in the appeal of his criminal conviction in the Central District of California. United

12 States v. Brown, 19-50025 (13 CR 822). The appeal is fully briefed and may be argued

13 sometime between September and November 2020.

14

3. Mr. Brown was sentenced by the Honorable Otis D. Wright on January 28,

15 2018, to 150 months in prison after being convicted by a jury of two counts of drug

16 trafficking (PCP). He was convicted of distribution and conspiracy in violation of 21

17 U.S.C. §§ 841(a)(1), (b)(1)(B)(iv), and 846. Mr. Brown has been in custody since his

18 arrest on February 12, 2014, or for more than half of his sentence. The BOP website

19 indicates his projected release date is 10/06/2024. See Exhibit A

20

4. Mr. Brown has some minor prior convictions but the last one was 20 years

21 ago.

22

5. On Tuesday, May 12, 2020, I spoke to Mr. Brown in a legal call arranged by

23 the Regional Counsel Dennis Wong. I sent a fax per Lompoc’s request to set up a legal

24 call on May 1. Mr. Wong sent me an email on May 7, to set up the call. He explained that

25 after each call the office and phone needs to be cleaned so arranging for phone calls is

26 a complicated matter. We arranged for me to be awaiting a call between 9:00 A.M. and

27 noon from Tuesday through Thursday but I was able to speak with Mr. Brown early

28 Tuesday morning. During this call, Mr. Brown confirmed to me that he wanted to

1 DECLARA6T36ION OF VERNA WEFALD

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1 participate as a named plaintiff in this litigation.

2

6. I did not have a chance to ask Mr. Brown about the details of his housing.

3 However, he is very concerned for his health given the serious outbreak of COVID-19 at

4 Lompoc. At his sentencing, the Presentence Report (PSR) verified that Mr. Brown has

5 prostate cancer. He will need chemotherapy or surgery in the future. I do not know how he

6 is being treated for his cancer at this time.

7

7. Yesterday I sent a request to Lompoc Warden J. Engleman (by email, fax,

8 and certified mail) requesting compassionate release and/or home confinement for

9 Mr. Brown. If the warden does not respond within 30 days I will file a motion in the

10 district court requesting that he be released forthwith.

11

8. I have communicated with Mr. Brown’s daughter Andrea Brown several

12 times. She said that he would be able to live with her as he has in the past. Mr. Brown also

13 has five other children in the Los Angeles area to whom he is close and who could help to

14 support him as well. He will certainly be eligible for Medicaid and can continue to see his

15 doctors at the Martin Luther King Hospital and the Centinela Medical Center in Lawndale.

16

9. Mr. Brown is particularly vulnerable at Lompoc given his underlying serious

17 health problems and his inability to communicate with the outside world by mail. At

18 present there are no phone calls or visits allowed at Lompoc. Legal calls have to be

19 arranged and this takes some time.

20

I declare under penalty of perjury under the laws of the United States of America

21 that the foregoing is true and correct.

22

Fxccuted on \1ay 14. 2020. at Pasadena ~Colifomja_

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2 DECLARA6T47ION OF VERNA WEFALD

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EXHIBIT 5
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1

DECLARATION OF NEMA ZAYED FEARS

2

I, Nema Zayed Fears, declare as follows:

3

1. I am over the age of 18, and if called as a witness, I could and would

4 competently testify.

5

2. My father is Shawn L. Fears. He is 50 years old and currently incarcerated at

6 USP Lompoc in Lompoc, California. His BOP Register Number is 34183-060.

7

3. Since April 16 2020, the prison has been under lockdown, and my father has

8 not been permitted to use a computer or telephone. I have only been able to converse with

9 him through letters. Through a letter dated May 10, 2020, he told me that he wanted to

10 participate in this lawsuit as a named plaintiff. The following information is based on what

11 my father has told me through his letters.

12

4. My father currently resides in the South Camp at USP Lompoc. He lives in

13 an open-plan dormitory, where prisoners reside in extremely close quarters with each other

14 and share a bathroom. Many prisoners in my father’s dormitory are sick.

15

5. Since the COVID-19 outbreak started, a single mask is the only piece of

16 protective equipment that my father has received. He has had to re-use that mask for

17 weeks.

18

6. My father has never been tested for COVID-19. The only testing he has seen

19 in his dormitory is temperature checks.

20

7. My father says that guards have stopped accepting requests for medical care

21 from prisoners since the outbreak started. He has seen other prisoners being denied regular

22 medical treatment that they would have received prior to the outbreak.

23

8. If transferred to home confinement, my father would self-quarantine at

24 10135 Shoreline Pkwy., Villa Rica, GA 30180. He would have access to doctors who are

25 familiar with his medical history.

26

I declare under penalty of perjury under the laws of the United States of America

27 that the foregoing is true and correct.

28

3649743.1

DECLARATI67O60N OF NEMA ZAYED FEARS

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Executed May 15, 2020, at Villa Rica, Georgia.

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1

DECLARATION OF DARWIN P. ROBERTS

2

I, Darwin P. Roberts, declare as follows:

3

1. I am an attorney and a member of the Criminal Justice Act panel in the

4 Western District of Washington. I was appointed counsel for Charles Cheatham in

5 pretrial proceedings in the case United States v. Charles Cheatham, U.S. District

6 Court, Western District of Washington, cause number 2:18-CR-00131-RAJ-1.

7 I represent Mr. Cheatham in his currently pending appeal in the Ninth Circuit Court

8 of Appeals, cause number 19-30294.

9

2. Mr. Cheatham is in the custody of the United States Bureau of Prisons

10 serving a sentence of incarceration imposed by the U.S. District Court. His current

11 projected release date is in March of 2031. His BOP register number is 48768-086.

12

3. In early 2020, Mr. Cheatham was transferred from the Federal

13 Detention Center in Seattle, Washington, to Lompoc Federal Correctional Institution

14 in Lompoc, CA.

15

4. Since COVID-19 cases began to develop in the Bureau of Prisons,

16 Mr. Cheatham’s ability to communicate with me has been limited. Mr. Cheatham

17 has lost most or all of his access to email, and only occasionally can contact me by

18 telephone.

19

5. I was able to speak with Mr. Cheatham today, May 14, 2020, for five

20 minutes. Mr. Cheatham stated he could only speak for five minutes at a time and

21 that there were “80 people” waiting their turn to use the telephone for five minutes.

22 I also received information on May 12, 2020, from family members Mr. Cheatham

23 was able to reach by telephone then.

24

6. Mr. Cheatham told me that COVID-19 cases at Lompoc FCI have

25 “blown up” in recent weeks. This is consistent with the figures reported on the

26 BOP’s website (https://www.bop.gov/coronavirus/), which currently lists 885 cases

27 among inmates at Lompoc FCI, and 13 cases among staff.

28

7. Mr. Cheatham told me that medical care offered by the BOP for

3649763.2

DECLARATI67O94N OF DARWIN P. ROBERTS

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1 COVID-19 has been very limited or nonexistent. He stated that inmates are not

2 tested for COVID-19 unless they are showing obvious symptoms, but even if they

3 are showing symptoms and test positive, they are not isolated from other inmates.

4

8. Mr. Cheatham reports that after several days in which he was showing

5 “obvious” symptoms of COVID-19, he was finally given a test for COVID-19 and

6 tested positive. I understand he tested positive within the last 14 days. Nevertheless,

7 he continues to be held in a dormitory-type situation with approximately 100 other

8 inmates, most of whom, he says, also now have COVID-19.

9

9. Mr. Cheatham stated that he and his fellow inmates are not being

10 provided any medication by BOP to treat their COVID-19 symptoms. He stated that

11 they are only being given occasional access to the commissary, meaning they are

12 generally unable to purchase cough drops, cough syrup, or other over-the-counter

13 medications such as aspirin or other painkillers to self-medicate their symptoms.

14

10. Mr. Cheatham stated that due to his untreated respiratory illness and

15 severe sore throat, he was unable to consume any food other than broth for a week.

16

11. Mr. Cheatham stated the inmates in his area are sleeping under fans that

17 circulate air all night and presumably may be spreading the virus among inmates.

18

12. Mr. Cheatham stated that because of BOP’s previous efforts to isolate

19 the inmates, he believes the COVID-19 infection must have been introduced into the

20 prison from BOP staff.

21

I declare under penalty of perjury under the laws of the United States of

22 America that the foregoing is true and correct, and that I executed this declaration

23 on May 15, 2020, at Seattle, Washington.

24

25

/s/ Darwin P. Roberts

Darwin P. Roberts

26

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3649763.2

2 DECLARATI7O05N OF DARWIN P. ROBERTS

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1

DECLARATION OF SHAMSHER SAMRA, M.D.

2

I, Shamsher Samra, declare as follows:

3

1. I am an Assistant Professor of Clinical Medicine at University of

4 California, Los Angeles and a faculty member in the Department of Emergency

5 Medicine at Harbor-UCLA. I work clinically in the LA County jails and participate

6 in jail reentry programs in Los Angeles County. I am a physician trained in forensic

7 medical evaluations through Physicians for Human Rights. I am a founding

8 member of both the Harbor-Hospital Based Violence Intervention Program and

9 Trauma Recovery Centers. I completed by residency in Emergency Medicine at the

10 University of California, Los Angeles. I received my M.D. from Harvard Medical

11 School. Attached as Exhibit A is my curriculum vitae.

12

2. COVID-19 is a serious disease that has reached pandemic status, and is

13 straining the health care systems around the world. As of May 14, 2020, at least 1.3

14 million people in the United States had received confirmed diagnoses of COVID 19.

15 At least 83,000 people have died in the United States. Approximately 71,000 of the

16 confirmed cases were in California, with more than 2,900 having died.1 These

17 numbers will continue to increase, perhaps exponentially. Moreover, these figures

18 must be considered in light of nationwide shortages of COVID-19 tests, meaning the

19 actual numbers are likely significantly higher than those reported.

20

3. The Lompoc complex is comprised of Federal Correctional Institution

21 Lompoc (“FCI Lompoc”) and United States Penitentiary Lompoc (“USP Lompoc”).

22 USP Lompoc itself has two components, a low-security camp and a medium-

23 security prison. In total, the facilities have a rated design capacity of 2058.2

24 1 Coronavirus Disease 2019, Centers for Disease Control and Prevention,
25 available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-
26 us.html

27 2 Prison Rape Elimination Act Audit Report, Federal Bureau of Prisons, at pages 28 2–3, available at https://www.bop.gov/locations/institutions/lof/prea_lof.pdf

3649607.2

1 DECLARATION728OF SHAMSHER SAMRA, M.D.

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1 However, as of May 14, 2020 they had a total population of 2680, thus exceeding

2 capacity.3 As of May 14, 2020, BOP’s website reports that there are a total of 924

3 people at FCI Lompoc who are currently or were recently positive for COVID-19,

4 including 882 residents and 14 staff currently deemed positive, and 25 inmates

5 reported as being “recovered” after previously testing positive.4 As of May 14,

6 BOP’s website reports that there were a total of 137 people at USP Lompoc who are

7 currently or were recently positive for COVID-19, including 22 staff and

8 16 residents currently deemed positive, and 93 residents reported as being

9 “recovered” after previously testing positive.5 The reported numbers change daily,

10 and the BOP website does not show what criteria it is using to consider someone

11 “recovered.” At least 2 residents have died at FCI Lompoc due to coronavirus.6

12

4. COVID-19 is a novel respiratory virus. It is spread primarily through

13 droplets generated when an infected person coughs or sneezes, or through droplets

14 of saliva or discharge from the nose. There is no vaccine for COVID-19, and there is

15 no cure for COVID-19. No one has prior immunity. The only way to control the

16 virus is to use preventive strategies, including social distancing.

17

5. The time course of the disease can be very rapid. Individuals can show

18 the first symptoms of infection in as few as two days after exposure and their

19 condition can seriously deteriorate in as few as five days (perhaps sooner) after that.

20 It is believed that people can transmit the virus without being symptomatic and,

21 3 Inmate Population Breakdown, Federal Bureau of Prisons, available at
22 https://www.bop.gov/mobile/about/population_statistics.jsp
23 4 COVID-19, Federal Bureau of Prisons, available at 24 https://www.bop.gov/coronavirus/

25 5 COVID-19, Federal Bureau of Prisons, available at 26 https://www.bop.gov/coronavirus/

27 6 COVID-19, Federal Bureau of Prisons, available at 28 https://www.bop.gov/coronavirus/

3649607.2

2 DECLARATION739OF SHAMSHER SAMRA, M.D.

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa7g4eo8f 018o9f 22P4agePaIDge#:I2D99 #:592

1 indeed, that a significant amount of transmission may be from people who are

2 infected but asymptomatic or pre-symptomatic.

3

6. COVID-19 causes serious illness, with overall case fatality rates in the

4 United States so far estimated at 5.8%. An estimated 20% of those who become

5 infected and develop symptoms require significant medical intervention. While

6 certain medical conditions increase the probability of death from infection,

7 otherwise perfectly healthy people are also vulnerable to COVID-19 and may die as

8 a result. For example, adults age 20 to 44 account for 20% of all hospitalizations

9 and 12% of ICU admissions.7

10

7. Treatment for serious cases of COVID-19 requires significant advanced

11 support. In particular, appropriate supportive care often requires ventilator

12 assistance for respiration and prone positioning if a patient’s condition worsens

13 despite intubation and ventilation. Furthermore, hospitals across the country are

14 deploying a variety of drug regimens, including antivirals and imunomodulators, in

15 search of the most effective remedy against COVID-19. It is essential that patients

16 have immediate access to such advanced supportive care, because the condition of

17 patients who require hospitalization often deteriorates in rapid fashion. For

18 instance, approximately 50% develop hypoxemia (shortage of oxygen in the blood

19 or shortage of oxygen) by the eighth day. And as many as 29% develop Acute

20 Respiratory Distress Syndrome (ARDS).8 In addition to being a very lethal

21 condition on its own, ARDS has a long and varied list of related complications that

22 are as equally fatal: blood clots, collapsed lung, infections, and scarring of lung

23
24 7 Coronavirus, COVID-19, Johns Hopkins Medicine, available at hopkinsguides.com/hopkins/view/Johns_Hopkins_ABX_Guide/540747/all/Coronav
25 irus_COVID_19__SARS_CoV_2_#2
26 8 Coronavirus, COVID-19, Johns Hopkins Medicine, available at
27 hopkinsguides.com/hopkins/view/Johns_Hopkins_ABX_Guide/540747/all/Coronav 28 irus_COVID_19__SARS_CoV_2_#2

3649607.2

3 DECLARATION7840OF SHAMSHER SAMRA, M.D.

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa7g5eo8f 118o9f 22P4agePaIDge#:I3D00 #:593

1 tissue.9 In sum, for those individuals who experience more severe symptoms from

2 COVID-19, immediate and substantial medical intervention is required.

3

8. The effects of COVID-19 are especially serious for people who are

4 most vulnerable. Vulnerable people include people over the age of 50, and those of

5 any age with underlying health problems such as—but not limited to—weakened

6 immune systems (which can be caused by a variety of conditions, including but not

7 limited to cancer treatment, smoking, and immune weakening medications),

8 moderate to severe asthma, diabetes, hypertension, serious heart and lung disease,

9 severe obesity, liver disease, chronic kidney disease, and possibly pregnancy.10

10 While the CDC typically classifies only people 65 and older as vulnerable,

11 incarcerated individuals tend to be in poorer health than those in the general

12 population, justifying the use of an earlier cutoff in classifying people deemed

13 vulnerable to COVID-19.

14

9. Although individuals in the above-described populations are most

15 vulnerable, even younger and healthier people can suffer severe consequences. For

16 example, even healthier people who contract COVID-19 are susceptible to severe

17 strokes and may require supportive care, which includes supplemental oxygen,

18 positive pressure ventilation, and in extreme cases, extracorporeal mechanical

19 oxygenation.

20

10. The full extent of long-term sequela on cardio and cerebrovascular

21 diseases and other organ damage is unknown at this time in light of the novel nature

22 of COVID-19. However, preliminary evidence suggests COVID-19 may render

23 lasting organ damage in even minimally symptomatic or completely asymptomatic

24 9 ARDS, Mayo Clinic, available at https://www.mayoclinic.org/diseases-
25 conditions/ards/symptoms-causes/syc-20355576
26 10 Coronavirus Disease 2019, Centers for Disease Control and Prevention,
27 available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
28 precautions/people-at-higher-risk.html

3649607.2

4 DECLARATION7851OF SHAMSHER SAMRA, M.D.

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa7g6eo8f 218o9f 22P4agePaIDge#:I3D01 #:594

1 patients. For example, COVID-19 can severely damage lung tissue, which requires

2 an extensive period of rehabilitation, and in some cases, can cause a permanent loss

3 of respiratory capacity. Furthermore, COVID-19 may target the heart muscle,

4 causing a medical condition called myocarditis, or inflammation of the heart muscle.

5 Myocarditis can affect the heart muscle and electrical system, reducing the heart’s

6 ability to pump. This reduction can lead to rapid or abnormal heart rhythms in the

7 short term, and long-term heart failure that limits exercise tolerance and the ability

8 to work.

9

11. In light of the above, an outbreak of COVID-19 could put significant

10 pressure on or exceed the capacity of local health infrastructure. In the absence of

11 a vaccine and a cure, a significant number of people who are infected with the virus

12 will die. Buttressing these concerns, it is not yet clear whether people who have

13 already been infected with COVID-19 gain immunity against future infection. To

14 the extent that the health care infrastructure is overloaded, people will die

15 unnecessarily because necessary respirators and hospital facilities are unavailable.

16

12. Public health authorities recommend a number of preventative steps to

17 help prevent or decrease the spread of COVID-19, with perhaps the most important

18 measure being social distancing. However, as the CDC and BOP both appear to

19 acknowledge, correctional facilities are inherently limited in their abilities to

20 implement such measures. For example, the BOP’s modified operating directive is

21 inadequate, in part, because it only requires social distancing “as much as

22 practicable.”11 Indeed, social distancing in ways that are recommended by public

23 health officials can be difficult, if not impossible, in prisons, placing people at risk,

24 especially when a facility is at or above population capacity. Therefore, even if the

25 conditions at Lompoc were ideal (which they are not) it would require

26

27 11 Modified Operating Directive, Federal Bureau of Prisons, available at 28 https://www.bop.gov/coronavirus/covid19_status.jsp

3649607.2

5 DECLARATION7862OF SHAMSHER SAMRA, M.D.

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa7g7eo8f 318o9f 22P4agePaIDge#:I3D02 #:595

1 a monumental effort to ensure the safety of prisoners and staff.

2

13. I understand the following to be allegations in the Complaint. If these

3 allegations are confirmed true, the conditions at Lompoc are deeply concerning:

4

 The Lompoc complex is comprised of Federal Correctional

5

Institution Lompoc and United States Penitentiary Lompoc.

6

USP Lompoc itself has two components, a low-security camp

7

and a medium-security prison.

8

 In total, the facilities comprising the Lompoc complex have

9

a rated design capacity of 2058. However, as of May 14, 2020,

10

they had a population of 2680, thus exceeding capacity.

11

 As of May 13, 2020, more than 1,063 prisoners and staff had

12

tested positive for COVID-19 at FCI Lompoc and USP Lompoc.

13

 At FCI Lompoc, sick people are being moved to a converted

14

warehouse in USP Lompoc. The living space there is cell-style

15

(the warehouse is itself a converted SHU), with two prisoners to

16

a cell. The warehouse is on near-total lockdown, and prisoners

17

are in their cells almost 24 hours a day. Conditions at the

18

warehouse are very unsanitary. Nobody can shower or change

19

into clean clothes due to lockdown.

20

 At the low-security camp at USP, people live in open-plan

21

dormitories with shared bathrooms. About 140 people live in

22

these dorms and sleep on bunk beds approximately 6 feet apart

23

from each other. There are no internal walls so everyone and all

24

the bunk beds are in one open space. All 140 people share six

25

toilets and six showers. Dorms are crowded and people

26

congregate in common areas. Other than when they stand in line

27

for meal packets, nobody is allowed to leave the dormitory.

28

Prisoners also have to stand in line to get medication, and there is

3649607.2

6 DECLARATION7873OF SHAMSHER SAMRA, M.D.

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa7g8eo8f 418o9f 22P4agePaIDge#:I3D03 #:596

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3649607.2

not enough space for social distancing.  Initially, the practice appears to have been to transfer sick people
to the SHU. Some prisoners who had tested positive were left there for up to four days with no medical attention. Eventually, they re-opened two dormitories that had been closed three years ago due to mold contamination in order to house sick people. The re-opened dormitories are extremely unsanitary, and prisoners sleep on mattresses guards have scattered across the ground. Prisoners here go for up to five days at a time with no treatment for COVID-19. There is no soap, and people are not being allowed to shower.  At the medium-security prison at USP, two prisoners each are sharing cells that are normally single occupancy. It does not appear that they are bothering to pull sick people out of the prison, presumably because they are less infected due to the relative isolation. Policy seems to be to allow people to hit “rock-bottom” before being treated for COVID-19.  Inmates were only give one mask in April, and have been reusing that mask since. Hand sanitizer is non-existent and soap is not plentiful (because commissary is closed, prisoners cannot secure extra soap beyond the one bar per week they are normally issued).  It does not appear that anyone who tests positive and then “recovers” is tested again before being returned to the general population.  Prisoners are being denied regular medical treatment they had received prior to the outbreak. For example, routine procedures scheduled prior to the outbreak have been delayed indefinitely.
7 DECLARATION7884OF SHAMSHER SAMRA, M.D.

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa7g9eo8f 518o9f 22P4agePaIDge#:I3D04 #:597

1

14. These conditions make it virtually impossible to ensure the safety of

2 prisoners who remain housed at the facility if the current course is maintained.

3 Even if the government made best efforts, effective social distancing is out of the

4 question, particularly for those inmates who are effectively forced to be in

5 a communal setting at all times due to their dormitory-style housing. Indeed, this

6 combination of factors practically ensures that all remaining prisoners will

7 eventually contract COVID-19 unless extraordinary measures are taken now. As if

8 more evidence were needed of Lompoc’s inability to ensure the safety of its

9 prisoners, more than half of them have recently tested positive for COVID-19.

10

15. Moreover, it is my understanding that BOP now contends that

11 a substantial number of the prisoners who recently tested positive have “recovered.”

12 To the extent these prisoners have actually recovered from the illness, that does not

13 absolve the need for preventive measures. In particular, it is not yet clear whether

14 people who have been infected develop immunity against future infection by

15 COVID-19.

16

16. Furthermore, if it is true that BOP is classifying prisoners as

17 “recovered” without re-testing them, that would be very problematic. Indeed, the

18 need for continued rigorous preventive measures is only heightened if BOP has not

19 relied on appropriate methods for determining whether prisoners have in fact

20 recovered. In an ideal scenario, an individual would only be deemed “recovered”

21 after testing negative. Relying instead, for instance, on patient reports of symptoms

22 may not be sufficient in a correctional setting, where prisoners may be reluctant to

23 share information with staff. Furthermore, asymptomatic individuals can still be

24 carriers of the disease. And in a large communal living space, where social

25 distancing cannot be strictly adhered to, individuals should be tested regularly in

26 order to quickly identify and isolate anyone who may contract COVID-19 before it

27 spreads through the population.

28

17. I have also reviewed a declaration submitted by Kiarra Carror, the

3649607.2

8 DECLARATION7895OF SHAMSHER SAMRA, M.D.

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa8g0eo8f 618o9f 22P4agePaIDge#:I3D05 #:598

1 sister of prisoner Yonnedil Carror Torres who resides at USP Lompoc. In addition

2 to some of the representations above, the declarant indicates that: (1) Torres has

3 suffered from chronic asthma since he was a child; (2) Torres resides in a cell

4 designed to house only a single person but he shares his cell with another resident,

5 including sharing a toilet; (3) for five straight days, Torres asked correctional

6 officers for medical assistance due to a fever, diarrhea, and body aches, until he

7 eventually collapsed in his cell from acute respiratory failure; (4) after every

8 prisoner on Torres’s block began banging their cell doors in unison to attract the

9 attention of correctional officers, Torres was taken to a hospital, where he was

10 placed into a medically-induced coma; (5) at the hospital, he was tested for the first

11 time for COVID-19, with the result coming back positive; (6) Torres was then

12 intubated and put on a ventilator; (7) Torres has been informed by physicians that he

13 suffered acute lung damage from COVID-19 due to his asthma and his lung capacity

14 severely deteriorated as a result; (8) Torres was briefly placed in quarantine upon

15 returning to USP Lompoc before returning to his original cell; and (9) Torres has

16 seen other prisoners similarly struggle to receive medical attention, with their

17 symptoms having to become quite severe to receive treatment.

18

18. Assuming these allegations are accurate, the health care delivery

19 system at Lompoc is failing to provide even the minimal level of acceptable care. In

20 addition to the noted failures to institute an effective regimen of social distancing,

21 these declarations highlight the failure to monitor prisoners and to treat those who

22 have become infected—and even worse, have displayed notable symptoms.

23 Torres’s account is alarming, as it shows that virtually no effort is being made at

24 Lompoc to monitor or treat prisoners, with staff instead waiting until the last minute

25 to intervene and send the prisoner to a hospital. One of the things we have already

26 learned about this disease is the benefit of early and aggressive medical intervention.

27

19. Furthermore, given the conditions depicted both in the allegations from

28 the Complaint and the two declarations, it is questionable whether the healthcare

3649607.2

9 DECLARATION806OF SHAMSHER SAMRA, M.D.

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa8g1eo8f 718o9f 22P4agePaIDge#:I3D06 #:599

1 system at Lompoc is even capable of adequately responding to the dire situation it

2 now faces. In the context of a very limited healthcare system at a prison facility

3 (and possible staffing shortages due to COVID-19 outbreak among staff), the

4 inability to swiftly identify those prisoners in need of substantial and proactive

5 medical intervention and either begin an appropriate treatment regimen or transport

6 them to a civilian hospital will only cause needless pain and deaths.

7

20. In light of the above, in my opinion BOP should take immediate steps

8 to dramatically downsize the population at Lompoc, with priority given to those at

9 high risk of harm due to their age and health status and thus are likely to require a

10 disproportionate amount of medical resources. This will both allow Lompoc to

11 implement more effective preventive and treatment measures while simultaneously

12 granting released or transferred prisoners access to minimally acceptable living

13 conditions.

14

21. Perhaps most importantly, downsizing will allow for more effective

15 social distancing measures at Lompoc while simultaneously reducing the strain

16 placed on prison staff by the need to monitor and treat prisoners. Although BOP has

17 attempted to redress the overcrowding by sending certain FCI Lompoc inmates to

18 a converted warehouse, I am informed that the living conditions there are

19 unsanitary, raising questions about the suitability of the environment, especially for

20 a population grappling with a deadly novel disease. In light of the already high

21 infection rates at Lompoc, any reduction in prisoner population will also allow

22 prison staff to more closely monitor the conditions of infected prisoners for signs

23 that immediate medical intervention is required. Relatedly, the reduction in

24 population while implementing downsizing measures helps prevent overloading the

25 work of prison staff such that they can continue to ensure the safety of incarcerated

26 people.

27

22. Furthermore, immediate downsizing that prioritizes prisoners who are

28 elderly and those with underlying health conditions reduces the likelihood they will

3649607.2

10 DECLARATION817OF SHAMSHER SAMRA, M.D.

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa8g2eo8f 818o9f 22P4agePaIDge#:I3D07 #:600

1 contract the disease (either for a first or subsequent time) or suffer severe medical

2 consequences as a result of being infected. Reducing the spread and severity of

3 infection in a prison slows, if not reduces, the number of people who will become ill

4 enough to require hospitalization, which in turn reduces the strain on local

5 community resources and infrastructure.

6

23. Downsizing from a facility with infection rates as high as Lompoc may

7 be done safely, minimizing the risk of increasing infection rates in the community.

8 In particular, it is imperative that prisoners be tested prior to release. But even

9 prisoners who receive confirmed diagnoses of COVID-19 may be safely released to

10 the community. If they are asymptomatic, they must be required to self-quarantine

11 and follow other recommendations of public health officials. If they are

12 experiencing symptoms, they will likely receive superior healthcare if released from

13 custody due to the present conditions at Lompoc.

14

24. The above measures, especially if implemented immediately, can slow

15 or stop the spread of infection (or re-infection) and ensure appropriate and proactive

16 treatment of infected prisoners, to the benefit of prisoners and staff and, ultimately,

17 the community at large.

18

25. In addition to downsizing, and to the extent they are not already being

19 implemented, the following steps should immediately be mandated of the

20 Respondents in order to protect any prisoners who remain in custody:

21

a. Social Distancing. The prison must ensure that prisoners are

22 able to maintain adequate social distancing during required or necessary activities,

23 such as collecting food, eating, and receiving medications.

24

b. Immediate and Continued Testing. Patients (both staff and

25 prisoners) who require testing, based on public health recommendations and the

26 opinion of a qualified medical professional, should be tested for COVID-19,

27 including to the extent public health recommendations call for continued (or repeat)

28 testing of individuals who have previously been tested.

3649607.2

11 DECLARATION828OF SHAMSHER SAMRA, M.D.

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa8g3eo8f 918o9f 22P4agePaIDge#:I3D08 #:601

1

c. Immediate Screening. Defendants must be required to screen

2 each employee or other person entering the facility every day to detect fever over

3 100 degrees, cough, shortness of breath, and/or exposure to someone who is

4 symptomatic or under surveillance for COVID-19 or screening as required by public

5 health authorities. A record should be made of each screening.

6

d. Quarantine. The prison must establish non-punitive quarantine

7 for all individuals believed to have been exposed to COVID-19, but not yet

8 symptomatic, and non-punitive isolation for those believed to be infected with

9 COVID-19 and potentially infectious. Any individual who must interact with those

10 potentially or likely inflicted with COVID-19 must utilize protective equipment as

11 directed by public health authorities. In short, every possible effort must be made to

12 separate infected or potentially infected individuals from the rest of the incarcerated

13 population and each other.

14

e. Institutional Hygiene. The prison must be required to provide

15 adequate disinfection of all high-touch areas and cells.

16

f. Personal Hygiene. The prison must be required to provide hand

17 soap, disposable paper towels, and access to water to allow prisoners to wash their

18 hands on a regular basis, free of charge and ensure replacement products are

19 available as needed. Further, hand sanitizer with alcohol must be declassified

20 temporarily as contraband. Correctional staff should be allowed to carry hand

21 sanitizer with alcohol on their person, and prisoners should be allowed to use hand

22 sanitizer with alcohol when they are in locations or activities where hand washing is

23 not available. Prisoners should also be permitted daily access to showers and clean

24 laundry. Correctional officers should be required to wear personal protective

25 equipment, consistent with the CDC guidance, including masks and gloves, when

26 interacting with any person or when touching surfaces in cells or common areas.

27 Finally, correctional officers should also wash their hands, use hand sanitizer, or

28 change their gloves both before and after interacting with any person or touching

3649607.2

12 DECLARATION839OF SHAMSHER SAMRA, M.D.

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa8g4eo9f 018o9f 22P4agePaIDge#:I3D09 #:602

1 surfaces in cells or common areas.

2

g. Waive Copays. There must be a waiving of copays for medical

3 evaluation and care related in any way to COVID-19 and/or its symptoms. A waiver

4 of these types of copays is necessary to avoid disincentivizing patients from

5 requesting medical treatment. Patients with symptoms of possible COVID-19 should

6 be seen quickly.

7

h. Personal Protective Equipment. Those prisoners with a cough

8 should be provided masks as soon as they inform staff of this symptom or staff

9 notice this symptom. Staff should also be required to wear facemasks, gowns or

10 other body coverings, eye protection, and gloves.

11

i. Supply Chain. The prison must be required to identify the

12 supplies and other materials upon which the institution is dependent, such as food,

13 medical supplies, certain medicines, cleaning products, etc., and prepare for

14 shortages, delays or disruptions in the supply chain.

15

26. In sum, reducing the number of individuals imprisoned at Lompoc

16 immediately is necessary for the health and safety of the prisons and our

17 communities. This population reduction should begin with the most medically

18 vulnerable which includes those over age 50 and those with CDC-defined

19 underlying health conditions.

20

I declare under penalty of perjury under the laws of the United States that the

21 foregoing is true and correct.

22

Executed May 15, 2020, at Los Angeles, California

23

24

25

26

27

28

3649607.2

13 DECLARATION8940OF SHAMSHER SAMRA, M.D.

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa8g5eo9f 118o9f 22P4agePaIDge#:I3D10 #:603
EXHIBIT A
8951

CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa8g6eo9f 218o9f 22P4agePaIDge#:I3D11 #:604
Shamsher Samra, MD, MPhil
CURRICULUM VITAE

PERSONAL HISTORY:

Business address:
Work Phone e-mail:

Harbor-UCLA Medical Center Division of 1000 West Carson Street Torrance, California 90509 (310) 269-3923 ssamra@dhs.lacounty.gov

Home address:
Home Phone:
Date of Birth: Place of Birth: Citizenship:

27 Westminster Ave Venice, California 90291 (559) 269-3923
May 5, 1986 Los Angeles, California U.S. Citizen

EDUCATION and TRAINING:

Stanford University, Stanford, California B.S., Biological Sciences

8/04-06/07

Cambridge University, Cambridge, UK MPhil, Development Studies Gates Cambridge Fellowship

08/07-06/08

Harvard Medical School, Boston, Massachusetts MD

08/08-06/13

Harvard Kennedy School of Government Urban Policy and Human Rights

08/14-12/14

UCLA Medical Center-Olive View Medical Center Residency: Emergency Medicine

07/13-06/17

Chief Resident UCLA Medical Center-Olive View Medical Center

Residency: Emergency Medicine

07/16-06/17

LICENSURE: State of California, A134884

02/15 -

Page 1 of 8

8962

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#:605

Shamsher Samra MD, MPhil

Drug Enforcement Agency

02/15 -

CERTIFICATION:

Diplomate, American Board of Emergency Medicine

06/14/18

PROFESSIONAL EXPERIENCE:

Assistant Professor Emergency Medicine Harbor-UCLA Medical Center Los Angeles, California

08/17 -

Attending Physician Correctional Health Services Twin Towers Correctional Facility Los Angeles, California

08/17-

Medical Director Whole Person Care Reentry Department of Health Services Los Angeles, California

08/18 –

Course Director Introduction to Social Medicine UCLA David Geffen School of Medicine Los Angeles, California

09/18 –

Co-Director Trauma Recovery Center Harbor-UCLA Medical Center Torrance, California

12/17-

Co-Director Hospital Based Violence Intervention Program 3/19 Harbor-UCLA Medical Center Torrance, California

PROFESSIONAL ACTIVITIES:

Committee Services 1. UCLA International and Domestic Health Equity 2. Correctional Health Services Care Transitions 3. Whole Person Care Delivery Systems Integration 4. Whole Person Care Clinical Innovations 5. Hospital Based Violence Intervention Consortium 6. DPH Trauma Prevention Initiative 7. Harbor UCLA Diversity Committee 8. Harbor Supports Undocumented Patients 9. Los Angeles Office of Violence Prevention 10. Co- Lead Los Angeles Hospital Based Violence Intervention Consortium

Community Service

Page 2 of 8

8973

01/17 08/17 01/18 – 06/19 01/18 – 06/19 12/18 – 06/18 – 06/18 06/18 06/19 -
06/19 -

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#:606

Shamsher Samra MD, MPhil

1. Strategic Action for a Just Economy Board Member 12/13- 12/18

2. Doctors for Global Health Board Member

08/17 –

3. Tijuana Border Wound Clinic

06/16 –

4. Frontline Wellness Network Founding Member

08/17 –

5. Southern California Physicians for Health Equity

06/18 -

Professional & Scholarly Associations 1. Society for Academic Emergency Medicine 2. American College of Emergency Physicians 3. ACEP Social Emergency Medicine Section 4. SAEM Social Emergency Medicine Interest Group

10/14 10/14 – 06/17 – 01/18 -

HONORS AND SPECIAL AWARDS: 1. Gates- Cambridge Fellowship

06/07 – 06/08

RESEARCH GRANTS AND FELLOWSHIPS RECEIVED:

Public Health Institute California Bridge Program Grant Goal: Implement and study opiate treatment Role: Co- PI

02/2019-06/2020

California Community Foundation

04/2018-04/2020

Hospital Based Violence Intervention Grant

Goal: Implement a hospital-based violence intervention program

Role: Co-PI

California Victims Compensation Board Trauma Recovery Center Grant Goal: Establish a Trauma Recovery Center Role: Co-PI

04/2019-04/2021

Whole Person Care Los Angeles

06/2019-06/2021

Hospital Based Violence Intervention Grant

Goal: Expand Hospital Based Violence Intervention Programming Regionally

Role: PI

LECTURES AND PRESENTATIONS:

Local Lectures:

1. “Neurogenic Shock”

08/2015

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los

Angeles. California,

2. “Mechanical v. Traditional Chest Compressions”

05/2015

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los Angeles.

California

3. ED Based Interventions for At-Risk Drinking”

05/2016

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CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa8g9eo9f 518o9f 22P4agePaIDge#:I3D14

#:607

Shamsher Samra MD, MPhil

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los Angeles.

California, May 2016

4. Introduction to Trauma

06/2016

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los Angeles.

California

5. Course Director “Introduction to Social Medicine”

08/2017

David Geffen School of Medicine, Los Angeles California

6. Thoracic Trauma

09/2016

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los Angeles.

California

7. Care for the Homeless Patient

10/2016

Emergency Medicine Residents’ Conference, UCLA-Olive View Medical Centers, Los

Angeles. California

8. Correctional Health and Primary Care Connections

01/2019

Department of Health Services Reentry Learning Collaborative, California Endowment. Los

Angeles, California

9. Health Equity and Liberation Medicine

02/2019

Harbor-UCLA Medical Center Grand Rounds, Carson California

10. Structural Vulnerability

08/2019

Harbor-UCLA Emergency Medicine Grand Rounds , Carson CA

11. Social Emergency Medicine CPC

10/2019

Harbor-UCLA Emergency Medicine Grand Rounds , Carson CA

12. Hospital Based Violence Intervention

10/2019

LAC-USC Emergency Medicine Grand Rounds, Los Angeles California

13. Community Mental Health

11/2019

Charles Drew Medical School Health Equity Course, Los Angeles California

14. Less Than Lethal Weapons

01/2020

Harbor-UCLA Emergency Medicine Grand Rounds, Carson CA

Regional Lectures:

1. Barriers to the “Right To Health” Amongst Patients of a Public

Emergency Department Following Implementation of the Affordable Care Act 03/2015

Western Regional SAEM Conference, Tucson, AZ

2. Structural Vulnerability

05/2017

Emergency Medicine All-LA Regional Conference, LAC-USC Medical Center, Los Angeles,

California

3. Craniofacial Complications

07/2017

Emergency Medicine Conference, Kaweah-Delta Hospital, Visalia, California

4. Development and Implementation of a Novel Medicaid Enrolment Process

for Correctional Health Settings.

06/2018

Southern California DII Conference. Los Angeles, California

5. Incarceration and Health

05/2019

All-LA Regional Conference, Harbor-UCLA, Los Angeles, California

6. Injuries from “Non-Lethal” Weapons

08/2019

Harbor UCLA Regional Trauma and Critical Care Conference, Carson, CA.

National Lectures:

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CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa9g0eo9f 618o9f 22P4agePaIDge#:I3D15 #:608 Shamsher Samra MD, MPhil

1. Barriers to the “Right To Health” Amongst Patients

of a Public Emergency Department Following

Implementation of the Affordable Care Act.

05/2015

National Society of Academic Emergency Medicine Conference. San Diego

2. A Case of Migrating Chest Pain

04/2016

Council of Emergency Medicine Residency Directors National Conference, Annual Lecture,

Nashville, TN

3. Craniofacial Complications

05/2017

Society of Academic Emergency Medicine Conference, Orlando FL

4. Undocumented Emergency Department Patients: We Can Do Better

05/2018

National Society of Academic Emergency Medicine Conference. Indianapolis

5. Migrant Heath and Liberation Medicine

12/2018

Second Annual Health of Migrants Conference. Galveston, Texas.

6. Health Equity and Emergency Medicine: A Perfect Fit

05/2019

Society of Academic Emergency Medicine Conference, Las Vegas NV

7. Leveraging Community Health Workers to Improve Population Health

06/2019

Americas Essential Hospitals Vitals Conference, Miami FL

8. Breaking the Cycle: Hospital Based Violence Intervention

06/2019

Americas Essential Hospitals Vitals Conference, Miami FL

International Lectures:

1. Discapacidad: Trauma de Sistema Nervioso Central: Lesiones del Cerebro y Medula Espinal Pre-hospital Training Program. Managua, Nicaragua.

02/2017

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CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa9g1eo9f 718o9f 22P4agePaIDge#:I3D16 #:609 Shamsher Samra MD, MPhil
PUBLICATIONS/BIBLIOGRAPHY:
RESEARCH PAPERS
A. Research Papers - Peer Reviewed 1. Hale MB, Krutzik PO, Samra SS, Crane JM, Nolan GP, 2009 Stage Dependent Aberrant Regulation of Cytokine-STAT Signaling in Murine Systemic Lupus Erythematosus. PLoS ONE 4(8): e6756. doi:10.1371/journal.pone.000675 2. Samra SS, Crowley J, Fawsi M, 2011 The right to water in rural Punjab: Assessing equitable access to water in the context of the ongoing Punjab Rural Water Supply Project. Health and Human Rights Journal. Volume 13, No. 2. 3. Samra, SS et al. “Barriers to the Right to Health Among Patients of a Public Emergency Department After Implementation of the Affordable Care Act.” Health equity vol. 3,1 186-192. 2 May. 2019, doi:10.1089/heq.2018.0071 4. Samra, SS, Taira, B., Pinheiro, E., Trotzky-Sirr, R., & Schneberk, T. (2019). Undocumented Patients in the Emergency Department: Challenges and Opportunities. Western Journal of Emergency Medicine: Integrating Emergency Care with Population Health.
B. Research Papers - Peer Reviewed (In Press) 5. Saadi A, Cheffers ML, Taira B, Trotzky-Sirr R, Parmar P, Samra SS, Morrison JL, Shah S, Schneberk TW, “Building Immigration-Informed, Cross-Sector Coalitions: Findings from the Los Angeles County Health Equity for Immigrants Summit,” Health Equity

EDITORIALS 1. Maciag K, Samra SS, Sorscher SS. Harvard as Big Pharma. The Harvard Crimson.

03/2009

ABSTRACTS 1. Samra SS, Taira B, Richman, M, McCullough. “Barriers to the “Right To Health” Amongst Patients of a Public Emergency Department Following Implementation of the Affordable Care Act.” Western Regional Society of Academic Emergency Medicine Conference, Tucson, AZ, March 2015 2. Samra SS, Taira B, Richman, M, McCullough. “Barriers to the “Right To Health” Amongst Patients of a Public Emergency Department Following Implementation of the Affordable Care Act.” National Society of Academic Emergency Medicine Conference. San Diego, May 2015 3. Samra SS, Taira B, Hseih D, Schneberk, T. “Undocumented Emergency Department Patients: We Can Do Better” National Society of Academic Emergency Medicine Conference. Indianapolis, Indiana , May 2018 4. Taira, B, Torres, J, Nguyen, A, Samra SS. “Emergency Department Provider Knowledge of and Preferences for Language Assistance for the Care of Limited English Proficiency Patient” National Society of Academic Emergency Medicine Conference. Indianapolis, Indiana , May 2018 5. Schneberk T, Samra SS. “Creation of a novel medico-legal conduit to assist undocumented individuals presenting to the Emergency Department to address immigration legal needs” National Society of Academic Emergency Medicine Conference. Indianapolis, Indiana , May 2018

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CaCsaes2e:220:2-c0v-c-0v4-0445405-C0-BCMB-MP-VPCVCDoDcoucmuemnet n1t618F-1iledF0ile6d/0016/2/001/2P0agePa9g2eo9f 818o9f 22P4agePaIDge#:I3D17 #:610 Shamsher Samra MD, MPhil
6. Hsieh D, Samra SS, “Development and Implementation of a Novel Medicaid Enrolment Process for Correctional Health Settings.” Southern California Dissemination, Implementation, and Improvement Conference. Los Angeles, California. June 2018
7. Terao N, Hsieh D, Samra SS, Salas A, Murray J, Deane M, Carrillo P. “Implementing an Effective Hospital-Based Violence Intervention Program at a Los Angeles County Trauma Center” Southern California Dissemination, Implementation, and Improvement Conference. Los Angeles, California. June 2018
8. Kiwon Yoo, MPH, Shamsher Samra, MD, MPhil, Karen Bernstein, MPH and Dennis Hsieh, MD, JD, Reducing Morbidity, Mortality, and Recidivism for Jail and Prison Re-Entry Patients: The Los Angeles County Whole Person Care Re-Entry Program. American Public Health Association Conference 2019
9. Susie Lee, Dennis Hsieh, MD, JD, Shamsher Samra, MD, MPhil, Clemens Hong, MD, MPH, Henna Zaidi, MPP, MPH and Sasha Rumburg. Longitudinal Patient Accompaniment Services by Community Health Workers (CHWs): Improving Coordination of Primary Care Services (PCS) for High-Risk Populations in Los Angeles County. American Public Health Association Conference 2019
10. Natalie Terao, MD, MS, Dennis Hsieh, MD, JD, Shamsher Samra, MD, MPhil, Brittney Mull, MD, MPH, Joseph Friedman, MPH, Tony Kuo, MD, MSHS, Noel Barragan, MPH, Molly Deanne, MD, Antoinette Salas, RN, BSN, MICN, Arcelia Tavarez, Paul Carrillo and Jennifer Murray, MSW, LCSW. Implementation and Evaluation of a Hospital-Based Violence Intervention Program at a Los Angeles County Trauma Center. American Public Health Association Conference 2019
11. Shamsher Samra, MD, MPhil, Dennis Hsieh, MD, JD, Karen Bernstein, MPH and Kiley Hoffman, MSW. Expansion of a Jail Based Primary Care Reentry Program. American Public Health Association Conference 2019
12. Tony Kuo, MD, MSHS, Noel Barragan, MPH, Shamsher Samra, MD, MPhil and Rochelle Dicker, MD. Population Health Perspective on Violence Prevention in the Hospital Setting: Intervening During a “Teachable Moment” in a Victim’s Life. American Public Health Association Conference 2019
13. Joseph Friedman, MPH, Shamsher Samra, MD, MPhil, Dennis Hsieh, MD, JD, Vincent Chong, MD, MS, Lee Plantmason, MD, Todd Schneberk, MD, MSHPM, MA, Karen Kwaning, Molly Deanne, MD, Brittney Mull, MD, Philippe Bourgois, PhD and Rochelle Dicker, MD. Racial and Geographic Disparities in Violent Injury Rates: A Baseline Assessment for a Los Angeles Hospital-Based Violence Intervention Program. American Public Health Association Conference 2019
14. Dennis Hsieh, MD, JD, Shamsher Samra, MD, MPhil, Kiwon Yoo, MPH, Karen Bernstein, MPH and Mark Burstyn, Pharm.D. Providing a 30 Day Supply of Medications upon Discharge from Los Angeles County Jails. American Public Health Association Conference 2019
Page 7 of 8
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Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 99 of 224 Page ID #:611
EXHIBIT M
99

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EXHIBIT 8
19030

CCasaese2:22:02-0c-vc-v0-40445405-0C-CBMBM-P-VPCVC DDocoucmumenetn1t 618-F1ileFdil0e6d/0016//2001/2P0agPea9g4e o1f0118o9f 2P2a4gePIaDg#e:3ID19 #:613

1

DECLARATION OF MARC STERN, M.D.

2

I, Marc Stern, declare as follows:

3

1. I am a physician, board-certified in internal medicine, specializing in

4 correctional health care. I most recently served as the Assistant Secretary for Health

5 Care at the Washington State Department of Corrections. I served for four years as

6 a medical subject matter expert for the Officer of Civil Rights and Civil Liberties,

7 U.S. Department of Homeland Security, and as a medical subject matter expert for

8 one year for the California Attorney General’s division responsible for monitoring

9 the conditions of confinement in Immigration and Customs Enforcement (ICE)

10 detention facilities. I am a court-appointed medical expert in the class action

11 Parsons v. Ryan, CV-12-00601-PHX-ROS. Currently, I am the Medical Advisor for

12 the National Sheriffs’ Association on matters related to preventive measures

13 responding to COVID-19. Additionally, in 2009, at the request of the California

14 Receiver Clark Kelso, I toured 10 California state prisons to assess whether or not

15 the Receiver’s assignment—to restore the delivery of health services within the

16 California state prisons to constitutionally adequate levels – had been completed.

17 Attached as Exhibit A is a copy of my curriculum vitae.

18

2. COVID-19 is a serious disease that has reached pandemic status, and is

19 straining the health care systems around the world. As of May 15, 2020, at least

20 1.3 million people in the United States had received confirmed diagnoses of

21 COVID-19. At least 83,000 people have died in the United States. Approximately

22 71,000 of the confirmed cases were in California, with more than 2,900 having died.

23 These numbers will continue to increase, perhaps exponentially. Moreover, these

24 figures must be considered in light of nationwide shortages of COVID-19 tests,

25 meaning the actual numbers are likely significantly higher than those reported.

26

3. The Lompoc complex (“Lompoc”) is comprised of Federal

27 Correctional Institution Lompoc (“FCI Lompoc”) and United States Penitentiary

28 Lompoc (“USP Lompoc”). USP Lompoc itself has two components, a low-security

3649756.2

1 DECLARA1T9I0O41N OF MARC STERN, M.D.

CCasaese2:22:02-0c-vc-v0-40445405-0C-CBMBM-P-VPCVC DDocoucmumenetn1t 618-F1ileFdil0e6d/0016//2001/2P0agPea9g5e o1f0128o9f 2P2a4gePIaDg#e:3ID20 #:614

1 camp and a medium-security prison. In total, the facilities have a rated design

2 capacity of 2058. However, as of May 15, 2020 they had a total population of 2680,

3 thus exceeding capacity. As of May 15, 2020, there are a total of 924 people at FCI

4 Lompoc who are currently or were recently positive for COVID-19, including 870

5 residents and 14 staff currently deemed positive, and 37 residents reported as being

6 “recovered” after previously testing positive. As of May 15, there are a total of 140

7 people at USP Lompoc who are currently or were recently positive for COVID-19,

8 including 15 residents and 16 staff currently deemed positive, two resident deaths,

9 and 101 residents reported as being “recovered” after previously testing positive.

10 The BOP website does not show what criteria it is using to consider someone

11 “recovered.”

12

4. COVID-19 is a novel respiratory virus. It is spread primarily through

13 droplets generated when an infected person coughs or sneezes, or through droplets

14 of saliva or discharge from the nose. There is no vaccine for COVID-19, and there is

15 no cure for COVID-19. No one has prior immunity. The only way to control the

16 virus is to use preventive strategies, including social distancing.

17

5. The time course of the disease can be very rapid. Individuals can show

18 the first symptoms of infection in as few as two days after exposure and their

19 condition can seriously deteriorate in as few as five days (perhaps sooner) after that.

20 It is believed that people can transmit the virus without being symptomatic and,

21 indeed, that a significant amount of transmission may be from people who are

22 infected but asymptomatic or pre-symptomatic.

23

6. Treatment for serious cases of COVID-19 requires immediate and

24 substantial medical intervention.

25

7. The effects of COVID-19 are especially serious for people who are

26 most vulnerable. Vulnerable people include people over the age of 50, and those of

27 any age with underlying health problems such as—but not limited to—weakened

28 immune systems (which can be caused by a variety of conditions, including but not

3649756.2

2 DECLARA1T9I0O52N OF MARC STERN, M.D.

CCasaese2:22:02-0c-vc-v0-40445405-0C-CBMBM-P-VPCVC DDocoucmumenetn1t 618-F1ileFdil0e6d/0016//2001/2P0agPea9g6e o1f0138o9f 2P2a4gePIaDg#e:3ID21 #:615

1 limited to cancer treatment, smoking, and immune weakening medications),

2 moderate to severe asthma, diabetes, serious heart and lung disease, severe obesity,

3 liver disease, and possibly pregnancy. While the CDC typically classifies only

4 people 65 and older as vulnerable, incarcerated individuals tend to be in poorer

5 health than those in the general population, justifying the use of an earlier cutoff in

6 classifying people deemed vulnerable to COVID-19.

7

8. In light of the above, an outbreak of COVID-19 could put significant

8 pressure on or exceed the capacity of local health infrastructure. In the absence of

9 a vaccine and a cure, a significant number of people who are infected with the virus

10 will die. Buttressing these concerns, it is not yet clear whether people who have

11 already been infected with COVID-19 gain immunity against future infection. To

12 the extent that the health care infrastructure is overloaded, people will die

13 unnecessarily because necessary respirators and hospital facilities are unavailable.

14

9. Public health authorities recommend a number of preventive steps to

15 help prevent or decrease the spread of COVID-19, with perhaps the most important

16 measure being social distancing.

17

10. Prisons are congregate environments, i.e., places where people live and

18 sleep in close proximity. Many people live in dormitory-style units with multiple

19 rows of bunk beds close together or in small multi-person cells that often surround

20 common areas where incarcerated people crowd together during the day. Social

21 distancing in ways that are recommended by public health officials can be difficult,

22 if not impossible, in prisons, even when the population is under design capacity.

23 When prisons are at or above capacity, it becomes even more difficult to implement

24 appropriate social distancing measures.

25

11. Infectious diseases that are transmitted via the air or touch (like

26 COVID-19) are more likely to spread, placing people at risk. For these reasons, if—

27 but more likely when—COVID-19 is introduced into a prison, the risks of spread is

28 greatly, if not exponentially, increased as already evidenced by spread of COVID-19

3649756.2

3 DECLARA1T9I0O63N OF MARC STERN, M.D.

CCasaese2:22:02-0c-vc-v0-40445405-0C-CBMBM-P-VPCVC DDocoucmumenetn1t 618-F1ileFdil0e6d/0016//2001/2P0agPea9g7e o1f0148o9f 2P2a4gePIaDg#e:3ID22 #:616

1 in two other congregate environments: nursing homes and cruise ships.

2

12. But prisons actually have an attribute that makes them more dangerous

3 than cruise ships. Unlike cruise ships, prisons are not closed systems. Staff, new

4 detainees, attorneys, and inanimate objects—all potential vectors for virus—are

5 introduced into the system every day. Thus, even if the government makes best

6 efforts to follow preventive guidelines, the introduction of virus into a detention

7 center is almost inevitable. Moreover, because staff and some visitors travel each

8 day from the facilities back to their homes, when infection develops in the facility,

9 there is also significant risk that the infection will be transmitted outside the facility,

10 to the family and friends of staff and visitors. In short, the risks that confront

11 individuals at detention facilities such as Lompoc stem from their very nature as

12 congregate environments. Even if the healthcare provided were excellent, there

13 would still be substantial risk; if the healthcare provided were substandard, those

14 substantial risks are only elevated.

15

13. I understand the following to be allegations in the Complaint. If these

16 allegations are confirmed true, the conditions at Lompoc are deeply concerning:

17

 In total, the facilities comprising the Lompoc complex have

18

a rated design capacity of 2058. However, as of May 14, 2020,

19

they had a population of 2680, thus exceeding capacity.

20

 As of May 14, 2020, more than 1,061 residents and staff had

21

tested positive for COVID-19.

22

 Sick people from FCI Lompoc are being moved to living unit at

23

USP Lompoc. The living space there is double-occupancy cells.

24

The living unit is on near-total lockdown with residents confined

25

to their cells almost 24 hours a day. Conditions are very

26

unsanitary. Nobody can shower or change into clean clothes.

27

 At the low-security camp at USP Lompoc, people live in open-

28

plan dormitories with shared bathrooms. About 140 people live

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4 DECLARA1T9I0O74N OF MARC STERN, M.D.

CCasaese2:22:02-0c-vc-v0-40445405-0C-CBMBM-P-VPCVC DDocoucmumenetn1t 618-F1ileFdil0e6d/0016//2001/2P0agPea9g8e o1f0158o9f 2P2a4gePIaDg#e:3ID23 #:617

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3649756.2

in these dormitories and sleep on bunk beds approximately six feet apart from each other. There are no internal walls so everyone and all the bunk beds are in one open space. All 140 people share six toilets and six showers. Dormitories are crowded and people congregate in common areas. Residents also have to stand in line to get medication, and there is not enough space for social distancing.  Initially, the practice appears to have been to transfer sick people to the solitary confinement unit. Some residents who had tested positive were left there for up to four days with no medical attention. Eventually, prison authorities re-opened two dormitories which had been closed three years ago due to mold contamination in order to house sick people. The re-opened dormitories are extremely unsanitary, and residents sleep on mattresses officers have scattered across the ground. Residents here spend up to five days at a time with no treatment for COVID-19. There is no soap, and people are not being allowed to shower.  At the medium-security prison at USP, two residents share cells that are normally single-occupancy. Residents who become ill with presumptive COVID-19 are not isolated from the healthy population. The current prison practice seems to be to allow people to hit “rock-bottom” before being treated for COVID-19.  Residents were only give one mask in April, and have been reusing that mask since. Hand sanitizer is non-existent and soap is not plentiful.  It does not appear that anyone who tests positive and then “recovers” is tested again before being returned to the general
5 DECLARA1T9I0O85N OF MARC STERN, M.D.

CCasaese2:22:02-0c-vc-v0-40445405-0C-CBMBM-P-VPCVC DDocoucmumenetn1t 618-F1ileFdil0e6d/0016//2001/2P0agPea9g9e o1f0168o9f 2P2a4gePIaDg#e:3ID24 #:618

1

population.

2

 Residents are being denied regular medical treatment they had

3

received prior to the outbreak. For example, medically necessary

4

procedures scheduled prior to the outbreak have been delayed

5

indefinitely.

6

14. These conditions, if true—a track record of not being able to prevent

7 predictable and widespread infection, continued widespread infection, unsanitary

8 living conditions, inadequate testing, and most importantly overcrowding—make it

9 exceedingly difficult, if not impossible, to ensure the safety of residents who remain

10 housed at the facility. In particular, these conditions mean that social distancing is

11 very difficult, if not impossible, to effectively implement.

12

15. I have also reviewed a declaration submitted by Kiarra Carror, the

13 sister of Yonnedil Carror Torres, a resident of USP Lompoc. In addition to some of

14 the representations above, the declarant indicates that: (1) Torres resides in a cell

15 designed to house only a single person but he shares his cell with another resident,

16 including sharing a toilet; (2) For five straight days, Torres asked correctional

17 officers for medical assistance due to a fever, diarrhea, and body aches, until he

18 eventually collapsed in his cell from acute respiratory failure; (3) After every

19 resident on Torres’s block began banging their cell doors in unison to attract the

20 attention of correctional officers, Torres was taken to a hospital, where he was

21 placed into a medically-induced coma after being placed on a ventilator; (4) At the

22 hospital, he was tested for the first time for COVID-19, with the result coming back

23 positive; (5) Torres has been informed by physicians that he suffered acute lung

24 damage from COVID-19 due to his asthma and his lung capacity severely

25 deteriorated as a result; and (6) Torres has seen other residents similarly struggle to

26 receive medical attention, with their symptoms having to become quite severe to

27 receive treatment.

28

16. I cannot draw any conclusions from a single second-hand report.

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6 DECLARA1T9I0O96N OF MARC STERN, M.D.

CCaassee22:2:200-c-cvv-0-044445500-C-CBBMM-P-PVVCC DDooccuummeennt t1186-1 FFileiledd0066/0/011/2/200 PPaaggee110007oof f128294 PPaaggeeIDID #:362159

1 However, if these allegations were found to be accurate, and if they were found to

2 be representative of the system of health care delivery operating at USP Lompoc

3 and FCI Lompoc, I would likely draw the following conclusions: (1) Lompoc

4 operators are exposing residents to a significant risk of harm by ensuring that

5 residents cannot socially distance. (2) The health care delivery system at Lompoc is

6 currently unable to provide minimally safe health care, i.e., the current system poses

7 a significant risk of serious harm to residents, a risk that will only increase as more

8 residents become symptomatic from COVID-19 or the condition of symptomatic

9 residents deteriorates as their disease progresses. Indeed, Torres’s sister’s account is

10 alarming, as she claims that Lompoc staff refused her brother treatment until his

11 condition was at a critical stage, at which point they finally sent him to a hospital for

12 medically necessary treatment.

13

17. If the second conclusion above were true, I would need more

14 information through discovery to determine the cause(s). However, based on my

15 experience operating, evaluating, and monitoring correctional health care systems, it

16 would likely be the result of one or more of the following factors: insufficient

17 number of staff; inappropriate types of staff (for example, using licensed vocational

18 nurses, performing beyond their licensed scope of practice, to carry out the duties of

19 a registered nurse); insufficient training; and insufficient supervision.

20

18. For these reasons, I recommend consideration of a concerted effort to

21 downsize the population of Lompoc to the lowest number possible immediately,

22 with priority given to those at high risk of harm due to their age and health status.

23 This will both allow Lompoc to implement more effective preventive and treatment

24 measures while simultaneously granting released or transferred residents access to

25 minimally acceptable living conditions. To maximize their effectiveness in reducing

26 the spread and impact of the virus at Lompoc, these downsizing measures must be

27 implemented now.

28

19. There are two values to immediate downsizing. First, downsizing will

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7 DECLARA1TI0O07N OF MARC STERN, M.D.

CCaassee22:2:200-c-cvv-0-044445500-C-CBBMM-P-PVVCC DDooccuummeennt t1186-1 FFileiledd0066/0/011/2/200 PPaaggee110018oof f128294 PPaaggeeIDID #:36260

1 reduce Lompoc’s density of congregation. This will allow people in prison to

2 maintain better social distancing. The reduction in population will also make it

3 easier for prison authorities to implement infection prevention measures such as:

4 provision of cleaning supplies to residents; frequent laundering of towels and

5 clothes; provision of soap for handwashing; frequent cleaning of transactional

6 surfaces; etc. Furthermore, downsizing will allow prison health care professionals to

7 devote their attention to a smaller number of residents, potentially improving the

8 quality of care those residents receive. At any prison it is beneficial to conserve

9 medical resources in the face of a pandemic such as the one we presently face. All

10 these steps can slow or stop the spread of infection (or re-infection) and improve

11 treatment outcomes if they are currently inadequate, to the benefit of residents and

12 staff and, ultimately, the community at large.

13

20. Second, immediate downsizing that prioritizes residents who are

14 elderly and those with underlying health conditions reduces the likelihood they will

15 contract the disease or suffer severe medical consequences as a result of being

16 infected. Individuals in these groups are at the highest risk of severe complications

17 from COVID-19 and when they develop severe complications they will be

18 transported to community hospitals. Reducing the spread and severity of infection in

19 a prison slows, if not reduces, the number of people who will become ill enough to

20 require hospitalization where they will be using scarce community resources (ER

21 beds, general hospital beds, ICU beds) which also in turn reduces the health and

22 economic burden to the local community at large. Indeed, in light of the new reality

23 in which we operate, decisions to release residents from custody—traditionally

24 concerned primarily with public safety—must also take into account the impact on

25 public health. It is for this reason that release or transfer1 of at-risk residents not only

26

27 1 Transfer is only acceptable if the transfer itself does not pose significant risks and
28 is a transfer to another facility where the quality of health care and COVID-19

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1 reduces their risk of death, but also increases public safety when the impact on

2 public health is also considered.

3

21. Residents who have received confirmed diagnoses of COVID-19 in

4 most cases may be safely released to the community, where they can quarantine or

5 isolate at home. To the extent that the quality of care these residents currently

6 receive is inadequate, release would also ensure that residents have access to better

7 health care.

8

22. In addition to the downsizing described above, and to the extent they

9 are not already being implemented, the following steps should immediately be

10 mandated of the Respondents in order to protect any residents who remain in

11 custody:

12

a. Social Distancing. The prison must ensure that residents are able

13 to maintain adequate social distancing during required or necessary activities, such

14 as collecting food, eating, and receiving medications.

15

b. Immediate and Continued Testing. Patients (both staff and

16 residents) who require testing (or re-testing) based on public health

17 recommendations and the opinion of a qualified medical professional, should be

18 tested for COVID-19.

19

c. Immediate Screening. Defendants must be required to screen

20 each employee or other person entering the facility every day to detect fever over

21 100 degrees, cough, shortness of breath, other symptoms as currently recommended

22 by CDC, and exposure to someone who is symptomatic or under surveillance for

23 COVID-19, or screening as required by public health authorities. A record should be

24 made of each screening.

25

d. Quarantine. The prison must establish non-punitive quarantine

26 for all individuals believed to have been exposed to COVID-19, but not yet

27 28 precautions are safe.

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1 symptomatic, and non-punitive isolation for those believed to be infected with

2 COVID-19 and potentially infectious. Any individual who must interact with those

3 potentially or likely inflicted with COVID-19 must utilize protective equipment as

4 directed by public health authorities. In short, every possible effort must be made to

5 separate infected or potentially infected individuals from the rest of the incarcerated

6 population and each other.

7

e. Post-Isolation or Quarantine. Individuals should only be released

8 from quarantine or isolation in accordance with CDC guidelines as modified by

9 local public health authorities, after which they should be monitored in accordance

10 with those same guidelines.

11

f. Institutional Hygiene. The prison must be required to provide

12 adequate disinfection of all high-touch areas and cells.

13

g. Personal Hygiene. The prison must be required to provide hand

14 soap, disposable paper towels, and access to water to allow residents to wash their

15 hands on a regular basis, free of charge and ensure replacement products are

16 available as needed. Correctional staff should be allowed to carry hand sanitizer

17 with alcohol on their person, and residents should be allowed to use hand sanitizer

18 with alcohol when they are in locations or activities where hand washing is not

19 available. Correctional officers should be required to wear personal protective

20 equipment and perform hand hygiene when appropriate, consistent with the CDC

21 guidance as modified by local health authorities

22

h. Waive Copays. There must be a waiving of copays for medical

23 evaluation and care related in any way to COVID-19 and/or its symptoms. A waiver

24 of these types of copays is necessary to avoid disincentivizing patients from

25 requesting medical treatment. Patients with symptoms of possible COVID-19 should

26 be seen quickly.

27

i. Access to Care. All residents should have timely access to an

28 appropriately qualified health care professional.

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1

j. Personal Protective Equipment. Those residents with a cough

2 should be provided masks as soon as they inform staff of this symptom or staff

3 notice this symptom.

4

k. Supply Chain. The prison must be required to identify the

5 supplies and other materials upon which the institution is dependent, such as food,

6 medical supplies, certain medicines, cleaning products, etc., and prepare for

7 shortages, delays or disruptions in the supply chain.

8

23. Thus, in summary, consideration should be given to immediately

9 reducing the number of individuals imprisoned at Lompoc for the health and safety

10 of the prisons and our communities, taking into account the totality of risk posed to

11 the public safety by each individual. This population reduction should begin with

12 the most medically vulnerable which includes those over age 50 and those with

13 CDC-defined underlying health conditions.

14

I declare under penalty of perjury under the laws of the United States that the

15 foregoing is true and correct.

16

Executed May 15, 2020, at Tumwater, Washington.

17

18 Marc F. Stern. M.D., M.P.H.
19

20

21

22

23

24

25

26

27

28

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EXHIBIT A
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MARC F. STERN, M.D., M.P.H., F.A.C.P.

May, 2020

marcstern@live.com +1 (360) 701–6520

SUMMARY OF EXPERIENCE

CORRECTIONAL HEALTH CARE CONSULTANT

2009 – PRESENT

Consultant in the design, management, and operation of health services in a correctional setting to assist in evaluating, monitoring, or providing evidence-based, cost-effective care consistent with constitutional mandates of quality.

Current activities include:  COVID-19 Medical Advisor, National Sheriffs Association (2020 - )

 Advisor to various jails in Washington State on patient safety, health systems, and related health care and custody staff activities and operations, and RFP and contract generation (2014 - )

 Consultant to the US Department of Justice, Civil Rights Division, Special Litigation Section. Providing investigative support and expert medical services pursuant to complaints regarding care delivered in any US jail, prison, or detention facility. (2010 - ) (no current open cases)
 Physician prescriber/trainer for administration of naloxone by law enforcement officers for the Olympia, Tumwater, Lacey, Yelm, and Evergreen College Police Departments (2017 - )

 Consultant to the Civil Rights Enforcement Section, Office of the Attorney General of California, under SB 29, to review the healthcare-related conditions of confinement of detainees confined by Immigration and Customs Enforcement in California facilities (2017 - )

 Rule 706 Expert to the Court, US District Court for the District of Arizona, in the matter of Parsons v. Ryan (2018 - )

Previous activities include:  Consultant to Human Rights Watch to evaluate medical care of immigrants in Homeland Security detention (2016 -
2018)
 Consultant to Broward County Sheriff to help develop and evaluate responses to a request for proposals (2017 2018)
 Member of monitoring team (medical expert) pursuant to Consent Agreement between US Department of Justice and Miami-Dade County (Unites States of America v Miami-Dade County, et al.) regarding, entre outre, unconstitutional medical care. (2013 - 2016)
 Jointly appointed Consultant to the parties in Flynn v Walker (formerly Flynn v Doyle), a class action lawsuit before the US Federal District Court (Eastern District of Wisconsin) regarding Eighth Amendment violations of the health care provided to women at the Taycheedah Correctional Institute. Responsible for monitoring compliance with the medical component of the settlement. (2010 - 2015)
 Consultant on “Drug-related Death after Prison Release,” a research grant continuing work with Dr. Ingrid Binswanger, University of Colorado, Denver, examining the causes of, and methods of reducing deaths after release from prison to the community. National Institutes of Health Grant R21 DA031041-01. (2011 - 2016)
 Consultant to the US Department of Homeland Security, Office for Civil Rights and Civil Liberties. Providing investigative support and expert medical services pursuant to complaints regarding care received by immigration detainees in the custody of U.S. Immigration and Customs Enforcement. (2009 - 2014)
 Special Master for the US Federal District Court (District of Idaho) in Balla v Idaho State Board of Correction, et al., a class action lawsuit alleging Eighth Amendment violations in provision of health care at the Idaho State Correctional Institution. (2011 - 2012)
 Facilitator/Consultant to the US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, providing assistance and input for the development of the first National Survey of Prisoner Health. (2010-2011 )
 Project lead and primary author of National Institute of Corrections’ project entitled “Correctional Health Care Executive Curriculum Development,” in collaboration with National Commission on Correctional Health Care. NIC commissioned this curriculum for its use to train executive leaders from jails and prisons across the nation to better manage the health care missions of their facilities. Cooperative Agreement 11AD11GK18, US Department of Justice, National Institute of Corrections. (2011 - 2015 )

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 Co-teacher, with Jaye Anno, Ph.D., for the National Commission on Correctional Health Care, of the Commission’s standing course, An In-Depth Look at NCCHC’s 2008 Standards for Health Services in Prisons and Jails taught at its national meetings. (2010 - 2013)
 Contributor to 2014 Editions of Standards for Health Services in Jails and Standards for Health Services in Prisons, National Commission on Correctional Health Care. (2013)
 Consultant to the California Department of Corrections and Rehabilitation court-appointed Receiver for medical operations. Projects included: o Assessing the Receiver’s progress in completing its goal of bringing medical care delivered in the Department to a constitutionally mandated level. (2009) o Providing physician leadership to the Telemedicine Program Manager tasked with improving and expanding the statewide use of telemedicine. (2009)
 Conceived, co-designed, led, and instructed in American College of Correctional Physicians and National Commission on Correctional Health Care’s Medical Directors Boot Camp (now called Leadership Institute), a national training program for new (Track “101”) and more experienced (Track “201”) prison and jail medical directors. (2009 - 2012)
 Participated as a member of a nine-person Delphi expert consensus panel convened by Rand Corporation to create a set of correctional health care quality standards. (2009)
 Convened a coalition of jails, Federally Qualified Health Centers, and community mental health centers in ten counties in Washington State to apply for a federal grant to create an electronic network among the participants that will share prescription information for the correctional population as they move among these three venues. (2009 2010)
 Participated as a clinical expert in comprehensive assessment of Michigan Department of Corrections as part of a team from the National Commission on Correctional Health Care. (2007)
 Provided consultation to Correctional Medical Services, Inc., St. Louis (now Corizon), on issues related to development of an electronic health record. (2001)
 Reviewed cases of possible professional misconduct for the Office of Professional Medical Conduct of the New York State Department of Health. (1999 – 2001)
 Advised Deputy Commissioner, Indiana State Board of Health, on developing plan to reduce morbidity from chronic diseases using available databases. (1992)
 Provided consultation to Division of General Medicine, University of Nevada at Reno, to help develop a new clinical practice site combining a faculty practice and a supervised resident clinic. (1991)

OLYMPIA BUPRENORPHINE CLINIC, OLYMPIA, WASHINGTON

2019 - PRESENT

Volunteer practitioner at a low-barrier clinic to providing Medication Assisted Treatment (buprenorphine) to opioid dependent individuals wishing to begin treatment, until they can transition to a long-term treatment provider

OLYMPIA FREE CLINIC, OLYMPIA, WASHINGTON

2017 - PRESENT

Volunteer practitioner providing episodic care at a neighborhood clinic which provides free care to individuals without health insurance until they can find a permanent medical home

OLYMPIA UNION GOSPEL MISSION CLINIC, OLYMPIA, WASHINGTON

2009 – 2014

Volunteer practitioner providing primary care at a neighborhood clinic which provides free care to individuals without health insurance until they can find a permanent medical home; my own patient panel within the practice focuses on individuals recently released jail and prison.

WASHINGTON STATE DEPARTMENT OF CORRECTIONS

2002 – 2008

Assistant Secretary for Health Services/Health Services Director, 2005 – 2008 Associate Deputy Secretary for Health Care, 2002 – 2005

Responsible for the medical, mental health, chemical dependency (transiently), and dental care of 15,000 offenders in total confinement. Oversaw an annual operating budget of $110 million and 700 health care staff.

 As the first incumbent ever in this position, ushered the health services division from an operation of 12 staff in headquarters, providing only consultative services to the Department, to an operation with direct authority and

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responsibility for all departmental health care staff and budget. As part of new organizational structure, created and filled statewide positions of Directors of Nursing, Medicine, Dental, Behavioral Health, Mental Health, Psychiatry, Pharmacy, Operations, and Utilization Management.
 Significantly changed the culture of the practice of correctional health care and the morale of staff by a variety of structural and functional changes, including: ensuring that high ethical standards and excellence in clinical practice were of primordial importance during hiring of professional and supervisory staff; supporting disciplining or career counseling of existing staff where appropriate; implementing an organizational structure such that patient care decisions were under the final direct authority of a clinician and were designed to ensure that patient needs were met, while respecting and operating within the confines of a custodial system.
 Improved quality of care by centralizing and standardizing health care operations, including: authoring a new Offender Health Plan defining patient benefits based on the Eighth Amendment, case law, and evidence-based medicine; implementing a novel system of utilization management in medical, dental, and mental health, using the medical staffs as real-time peer reviewers; developing a pharmacy procedures manual and creating a Pharmacy and Therapeutics Committee; achieving initial American Correctional Association accreditation for 13 facilities (all with almost perfect scores on first audit); migrating the eight individual pharmacy databases to a single central database.
 Blunted the growth in health care spending without compromising quality of care by a number of interventions, including: better coordination and centralization of contracting with external vendors, including new statewide contracts for hospitalization, laboratory, drug purchasing, radiology, physician recruitment, and agency nursing; implementing a statewide formulary; issuing quarterly operational reports at the state and facility levels.
 Piloted the following projects: direct issuance of over-the-counter medications on demand through inmates stores (commissary), obviating the need for a practitioner visit and prescription; computerized practitioner order entry (CPOE); pill splitting; ER telemedicine.
 Oversaw the health services team that participated variously in pre-design, design, or build phases of five capital projects to build complete new health units.

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

2001 – 2002

Regional Medical Director, Northeast Region, 2001 – 2002
Responsible for clinical oversight of medical services for 14,000 offenders in 14 prisons, including one (already) under court monitoring.
 Oversaw contract with vendor to manage 60-bed regional infirmary and hospice.
 Coordinated activities among the Regional Medical Unit outpatient clinic, the Albany Medical College, and the 13 feeder prisons to provide most of the specialty care for the region.
 Worked with contracting specialists and Emergency Departments to improve access and decrease medical out-trips by increasing the proportion of scheduled and emergency services provided by telemedicine.
 Provided training, advice, and counseling to practitioners and facility health administrators in the region to improve the quality of care delivered.

CORRECTIONAL MEDICAL SERVICES, INC. (now CORIZON)

2000 – 2001

Regional Medical Director, New York Region, 2000 – 2001
Responsible for clinical management of managed care contract with New York State Department of Correctional Services to provide utilization management services for the northeast and northern regions of New York State and supervision of the 60-bed regional infirmary and hospice.
 Migrated the utilization approval function from one of an anonymous rule-based “black box” to a collaborative evidence-based decision making process between the vendor and front-line clinicians.

MERCY INTERNAL MEDICINE, ALBANY, NEW YORK Neighborhood three-physician internal medicine group practice. Primary Care Physician, 1999 – 2000 (6 months) Provided direct primary care to a panel of community patients during a period of staff shortage.

1999 – 2000

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ALBANY COUNTY CORRECTIONAL FACILITY, ALBANY, NEW YORK

1998 – 1999

Acting Facility Medical Director, 1998 – 1999

Directed the medical staff of an 800 bed jail and provided direct patient care following the sudden loss of the Medical Director, pending hiring of a permanent replacement. Coordinated care of jail patients in local hospitals. Provided consultation to the Superintendent on improvements to operation and staffing of medical unit and need for privatization.

VETERANS ADMINISTRATION MEDICAL CENTER, ALBANY, NY

1992 – 1998

Assistant Chief, Medical Service, 1995 – 1998 Chief, Section of General Internal Medicine and Emergency Services, 1992 – 1998
Responsible for operation of the general internal medicine clinics and the Emergency Department.
 Designed and implemented an organizational and physical plant makeover of the general medicine ambulatory care clinic from an episodic-care driven model with practitioners functioning independently supported by minimal nursing involvement, to a continuity-of-care model with integrated physician/mid-level practitioner/registered nurse/licensed practice nurse/practice manager teams.
 Led the design and opening of a new Emergency Department.
 As the VA Section Chief of Albany Medical College’s Division of General Internal Medicine, coordinated academic activities of the Division at the VA, including oversight of, and direct teaching in, ambulatory care and inpatient internal medicine rotations for medical students, residents, and fellows. Incorporated medical residents as part of the general internal medicine clinics. Awarded $786,000 Veterans Administration grant (“PRIME I”) over four years for development and operation of educational programs for medicine residents and students in allied health professions (management, pharmacy, social work, physician extenders) wishing to study primary care delivery.

ERIE COUNTY HEALTH DEPARTMENT, BUFFALO, NY

1988 – 1990

Director of Sexually Transmitted Diseases (STD) Services, 1989 – 1990 Staff Physician, STD Clinic, 1988 – 1989 Staff Physician, Lackawanna Community Health Center, 1988 – 1990
Provided leadership and patient care services in the evaluation and treatment of STDs. Successfully reorganized the county’s STD services which were suffering from mismanagement and were under public scrutiny. Provided direct patient care services in primary care clinic for underserved neighborhood.

UNION OCCUPATIONAL HEALTH CENTER, BUFFALO, NY Staff Physician, 1988 – 1990 Provided direct patient care for the evaluation of occupationally-related health disorders.

1988 – 1990

VETERANS ADMINISTRATION MEDICAL CENTER, BUFFALO, NY

1985 – 1990

Chief Outpatient Medical Section and Primary Care Clinic, 1986 – 1988 VA Section Head, Division of General Internal Medicine, University of Buffalo, 1986 – 1988
 Developed and implemented a major restructuring of the general medicine ambulatory care clinic to reduce fragmentation of care by introduction of a continuity-of-care model with a physician/nurse team approach.

Medical Director, Anticoagulation Clinic 1986 – 1990 Staff Physician, Emergency Department, 1985 – 1986

FACULTY APPOINTMENTS

2020 – present 2007 – present
1999 – present
1996 – 2002

Faculty Associate, Center for Human Rights, University of Washington
Affiliate Assistant Professor, Department of Health Services, School of Public Health, University of Washington
Clinical Professor, Fellowship in Applied Public Health (previously Volunteer Faculty, Preventive Medicine Residency), University at Albany School of Public Health
Volunteer Faculty, Office of the Dean of Students, University at Albany

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1992 – 2002 1993 – 1997 1990 – 1992 1985 – 1990 1982 – 1985

Associate Clinical/Associate/Assistant Professor of Medicine, Albany Medical College Clinical Associate Faculty, Graduate Program in Nursing, Sage Graduate School Instructor of Medicine, Indiana University Clinical Assistant Professor of Medicine, University of Buffalo Clinical Assistant Instructor of Medicine, University of Buffalo

2016 – present 2016 – present 2016 – 2017 2013 – present 2013 – 2016
2013 – present 2011 – 2012 2007 – present 2004 – 2006
2004 2003 – present
2001 – present 1999 – present
1999
1997 – 1998 1996 – 2002 1996 – 2002 1995 – 1998 1995
1994 – 1998
1993 1993
1988 – 1989
1987 – 1990 1987 – 1989
1987 – 1988 1987 1986 – 1988 1986 – 1988
1979 – 1980

OTHER PROFESSIONAL ACTIVITIES
Chair, Education Committee, Academic Consortium on Criminal Justice Health Washington State Institutional Review Board (“Prisoner Advocate” member) Mortality Reduction Workgroup, American Jail Association Conference Planning Committee – Medical/Mental Health Track, American Jail Association “Health in Prisons” course, Bloomberg School of Public Health, Johns Hopkins University/International Committee of the Red Cross Institutional Review Board, University of Washington (“Prisoner Advocate” member), Education Committee, National Commission on Correctional Health Care National Advisory Committee, COCHS (Community–Oriented Correctional Health Services) Fellow’s Advisory Committee, University of Washington Robert Wood Johnson Clinical Scholar
Program External Expert Panel to the Surgeon General on the “Call to Action on Correctional Health Care” Faculty Instructor, Critical Appraisal of the Literature Course, Family Practice Residency Program,
Providence St. Peter Hospital, Olympia, Washington Chair/Co-Chair, Education Committee, American College of Correctional Physicians Critical Appraisal of the Literature Course, Preventive Medicine Residency Program, New York State
Department of Health/University at Albany School of Public Health Co–Chairperson, Education Subcommittee, Workshop Submission Review Committee, Annual
Meeting, Society of General Internal Medicine Northeast US Representative, National Association of VA Ambulatory Managers Faculty Mentor, Journal Club, Internal Medicine Residency Program, Albany Medical College Faculty Advisor and Medical Control, 5 Quad Volunteer Ambulance Service, University at Albany Preceptor, MBA Internship, Union College Quality Assurance/Patient Satisfaction Subcommittee, VA National Curriculum Development
Committee for Implementation of Primary Care Practices, Veterans Administration Residency Advisory Committee, Preventive Medicine Residency, New York State Department of
Health/School of Public Health, University at Albany Chairperson, Dean's Task Force on Primary Care, Albany Medical College Task Group to develop curriculum for Comprehensive Care Case Study Course for Years 1 through 4,
Albany Medical College Teaching Effectiveness Program for New Housestaff, Graduate Medical Dental Education Consortium
of Buffalo Human Studies Review Committee, School of Allied Health Professions, University of Buffalo Chairman, Subcommittee on Hospital Management Issues and Member, Subcommittee on
Teaching of Ad Hoc Committee to Plan Incoming Residents Training Week, Graduate Medical Dental Education Consortium of Buffalo Dean's Ad Hoc Committee to Reorganize "Introduction to Clinical Medicine" Course Preceptor, Nurse Practitioner Training Program, School of Nursing, University of Buffalo Course Coordinator, Simulation Models Section of Physical Diagnosis Course, University of Buffalo Chairman, Service Chiefs' Continuity of Care Task Force, Veterans Administration Medical Center, Buffalo, New York Laboratory Teaching Assistant in Gross Anatomy, Université Libre de Bruxelles, Brussels, Belgium

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1973 – 1975 1972 – 1975
1972 – 1975

Instructor and Instructor Trainer of First Aid, American National Red Cross
Chief of Service or Assistant Chief of Operations, 5 Quad Volunteer Ambulance Service, University at Albany.
Emergency Medical Technician Instructor and Course Coordinator, New York State Department of Health, Bureau of Emergency Medical Services

2019 – present 2015 – present 2015 – present
2011 – present 2010 – present 2010 – present 2001 – present 2001 – 2004 1996
1990 – 1992

REVIEWER/EDITOR Criminal Justice Review (reviewer) PLOS ONE (reviewer) Founding Editorial Board Member and Reviewer, Journal for Evidence-based Practice in Correctional Health, Center for Correctional Health Networks, University of Connecticut American Journal of Public Health (reviewer) International Advisory Board Member and Reviewer, International Journal of Prison Health Langeloth Foundation (grant reviewer) Reviewer and Editorial Board Member (2009 – present), Journal of Correctional Health Care Journal of General Internal Medicine (reviewer) Abstract Committee, Health Services Research Subcommittee, Annual Meeting, Society of General Internal Medicine (reviewer) Medical Care (reviewer)

EDUCATION
University at Albany, College of Arts and Sciences, Albany; B.S., 1975 (Biology) University at Albany, School of Education, Albany; AMST (Albany Math and Science Teachers) Teacher Education
Program, 1975 Université Libre de Bruxelles, Faculté de Medecine, Brussels, Belgium; Candidature en Sciences Medicales, 1980 University at Buffalo, School of Medicine, Buffalo; M.D., 1982 University at Buffalo Affiliated Hospitals, Buffalo; Residency in Internal Medicine, 1985 Regenstrief Institute of Indiana University, and Richard L. Roudebush Veterans Administration Medical Center; VA/NIH
Fellowship in Primary Care Medicine and Health Services Research, 1992 Indiana University, School of Health, Physical Education, and Recreation, Bloomington; M.P.H., 1992 New York Academy of Medicine, New York; Mini-fellowship Teaching Evidence-Based Medicine, 1999

CERTIFICATION
Provisional Teaching Certification for Biology, Chemistry, Physics, Grades 7–12, New York State Department of Education (expired), 1975
Diplomate, National Board of Medical Examiners, 1983 Diplomate, American Board of Internal Medicine, 1985 Fellow, American College of Physicians, 1991 License: Washington (#MD00041843, active); New York (#158327, inactive); Indiana (#01038490, inactive) “X” Waiver (buprenorphine), Department of Health & Human Services, 2018

2019 – present 2005 – 2016 2004 – 2006
2000 – present

MEMBERSHIPS Washington Association of Sheriffs and Police Chiefs American Correctional Association/Washington Correctional Association American College of Correctional Physicians (Member, Board of Directors, Chair Education Committee) American College of Correctional Physicians

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RECOGNITION B. Jaye Anno Award for Excellence in Communication, National Commission on Correctional Health Care. 2019 Award of Appreciation, Washington Association of Sheriffs and Police Chiefs. 2018 Armond Start Award of Excellence, American College of Correctional Physicians. 2010 (First) Annual Preventive Medicine Faculty Excellence Award, New York State Preventive Medicine Residency Program, University at Albany School of Public Health/New York State Department of Health. 2010 Excellence in Education Award for excellence in clinical teaching, Family Practice Residency Program, Providence St. Peter Hospital, Olympia, Washington. 2004 Special Recognition for High Quality Workshop Presentation at Annual Meeting, Society of General Internal Medicine. 1996 Letter of Commendation, House Staff Teaching, University of Buffalo. 1986

WORKSHOPS, SEMINARS, PRESENTATIONS, INVITED LECTURES
It’s the 21st Century – Time to Bid Farewell to “Sick Call” and “Chronic Care Clinic”. Annual Conference, National Commission on Correctional Health Care. Fort Lauderdale, Florida. 2019
HIV and Ethics – Navigating Medical Ethical Dilemmas in Corrections. Keynote Speech, 14th Annual HIV Care in the Correctional Setting. AIDS Education and Training Program (AETC) Mountain West, Olympia, Washington. 2019
Honing Nursing Skills to Keep Patients Safe in Jail. Orange County Jail Special Training Session (including San Bernardino and San Diego Jail Staffs), Theo Lacy Jail, Orange, California. 2019
What Would You Do? Navigating Medical Ethical Dilemmas. Leadership Training Academy, National Commission on Correctional Health Care. San Diego, California. 2019
Preventing Jail Deaths. Jail Death Review and Investigations: Best Practices Training Program, American Jail Association, Arlington, Virginia. 2018
How to Investigate Jail Deaths. Jail Death Review and Investigations: Best Practices Training Program, American Jail Association, Arlington, Virginia. 2018
Executive Manager Program in Correctional Health. 4-day training for custody/health care teams from jails and prisons on designing safe and efficient health care systems. National Institute for Corrections Training Facility, Aurora, Colorado, and other venues in Washington State. Periodically. 2014 – present
Medical Ethics in Corrections. Criminal Justice 441 – Professionalism and Ethical Issues in Criminal Justice. University of Washington, Tacoma. Recurring seminar. 2012 – present
Medical Aspects of Deaths in ICE Custody. Briefing for U.S. Senate staffers, Human Rights Watch. Washington, D.C. 2018
Jails’ Role in Managing the Opioid Epidemic. Panelist. Washington Association of Sheriffs and Police Chiefs Annual Conference. Spokane, Washington. 2018
Contract Prisons and Contract Health Care: What Do We Know? Behind Bars: Ethics and Human Rights in U.S. Prisons Conference. Center for Bioethics – Harvard Medical School/Human Rights Program – Harvard Law School. Boston, Massachusetts. 2017
Health Care Workers in Prisons. (With Dr. J. Wesley Boyd) Behind Bars: Ethics and Human Rights in U.S. Prisons Conference. Center for Bioethics – Harvard Medical School/Human Rights Program – Harvard Law School. Boston, Massachusetts. 2017
Prisons, Jails and Medical Ethics: Rubber, Meet Road. Grand Rounds. Touro Medical College. New York, New York. 2017
Jail Medical Doesn’t Have to Keep You Up at Night – National Standards, Risks, and Remedies. Washington Association of Counties. SeaTac, Washington. 2017
Prison and Jail Health Care: What do you need to know? Grand Rounds. Providence/St. Peters Medical Center. Olympia, Washington. 2017
Prison Health Leadership Conference. 2-Day workshop. International Corrections and Prisons Association/African Correctional Services Association/Namibian Corrections Service. Omaruru, Namibia. 2016; 2018

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What Would YOU Do? Navigating Medical Ethical Dilemmas. Spring Conference. National Commission on Correctional Health Care. Nashville, Tennessee. 2016
Improving Patient Safety. Spring Provider Meeting. Oregon Department of Corrections. Salem, Oregon 2016
A View from the Inside: The Challenges and Opportunities Conducting Cardiovascular Research in Jails and Prisons. Workshop on Cardiovascular Diseases in the Inmate and Released Prison Population. The National Heart, Lung, and Blood Institute. Bethesda, Maryland. 2016
Why it Matters: Advocacy and Policies to Support Health Communities after Incarceration. At the Nexus of Correctional Health and Public Health: Policies and Practice session. Panelist. American Public Health Association Annual Meeting. Chicago, Illinois. 2015
Hot Topics in Correctional Health Care. Presented with Dr. Donald Kern. American Jail Association Annual Meeting. Charlotte, North Carolina. 2015
Turning Sick Call Upside Down. Annual Conference. National Commission on Correctional Health Care. Dallas, Texas, 2015.
Diagnostic Maneuvers You May Have Missed in Nursing School. Annual Conference. National Commission on Correctional Health Care. Dallas, Texas. 2015
The Challenges of Hunger Strikes: What Should We Do? What Shouldn’t We Do? Annual Conference. National Commission on Correctional Health Care. Dallas, Texas. 2015
Practical and Ethical Approaches to Managing Hunger Strikes. Annual Practitioners’ Conference. Washington Department of Corrections. Tacoma, Washington. 2015
Contracting for Health Services: Should I, and if so, how? American Jail Association Annual Meeting. Dallas, Texas. 2014
Hunger Strikes: What should the Society of Correctional Physician’s position be? With Allen S, May J, Ritter S. American College of Correctional Physicians (Formerly Society of Correctional Physicians) Annual Meeting. Nashville, Tennessee. 2013
Addressing Conflict between Medical and Security: an Ethics Perspective. International Corrections and Prison Association Annual Meeting. Colorado Springs, Colorado. 2013
Patient Safety and ‘Right Using’ Nurses. Keynote address. Annual Conference. American Correctional Health Services Association. Philadelphia, Pennsylvania. 2013
Patient Safety: Overuse, underuse, and misuse…of nurses. Keynote address. Essentials of Correctional Health Care conference. Salt Lake City, Utah. 2012
The ethics of providing healthcare to prisoners-An International Perspective. Global Health Seminar Series. Department of Global Health, University of Washington, Seattle, Washington. 2012
Recovery, Not Recidivism: Strategies for Helping People Who are Incarcerated. Panelist. NAMI Annual Meeting, Seattle, Washington, 2012
Ethics and HIV Workshop. HIV/AIDS Care in the Correctional Setting Conference, Northwest AIDS Education and Training Center. Salem, Oregon. 2011
Ethics and HIV Workshop. HIV/AIDS Care in the Correctional Setting Conference, Northwest AIDS Education and Training Center. Spokane, Washington. 2011
Patient Safety: Raising the Bar in Correctional Health Care. With Dr. Sharen Barboza. National Commission on Correctional Health Care Mid-Year Meeting, Nashville, Tennessee. 2010
Patient Safety: Raising the Bar in Correctional Health Care. American Correctional Health Services Association, Annual Meeting, Portland, Oregon. 2010
Achieving Quality Care in a Tough Economy. National Commission on Correctional Health Care Mid-Year Meeting, Nashville, Tennessee, 2010 (Co-presented with Rick Morse and Helena Kim, PharmD.)
Involuntary Psychotropic Administration: The Harper Solution. With Dr. Bruce Gage. American Correctional Health Services Association, Annual Meeting, Portland, Oregon. 2010
Evidence Based Decision Making for Non-Clinical Correctional Administrators. American Correctional Association 139th Congress, Nashville, Tennessee. 2009
Death Penalty Debate. Panelist. Seattle University School of Law, Seattle, Washington. 2009

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The Patient Handoff – From Custody to the Community. Washington Free Clinic Association, Annual Meeting, Olympia, Washington. Lacey, Washington. 2009
Balancing Patient Advocacy with Fiscal Restraint and Patient Litigation. National Commission on Correctional Health Care and American College of Correctional Physicians “Medical Directors Boot Camp,” Seattle, Washington. 2009
Staff Management. National Commission on Correctional Health Care and American College of Correctional Physicians “Medical Directors Boot Camp,” Seattle, Washington. 2009
Management Dilemmas in Corrections: Boots and Bottom Bunks. Annual Meeting, American College of Correctional Physicians, Chicago, Illinois. 2008
Public Health and Correctional Health Care. Masters Program in community–based population focused management – Populations at risk, Washington State University, Spokane, Washington. 2008
Managing the Geriatric Population. Panelist. State Medical Directors’ Meeting, American Corrections Association, Alexandria, Virginia. 2007
I Want to do my own Skin Biopsies. Annual Meeting, American College of Correctional Physicians, New Orleans, Louisiana. 2005
Corrections Quick Topics. Annual Meeting, American College of Correctional Physicians. Austin, Texas. 2003
Evidence Based Medicine in Correctional Health Care. Annual Meeting, National Commission on Correctional Health Care. Austin, Texas. 2003
Evidence Based Medicine. Excellence at Work Conference, Empire State Advantage. Albany, New York. 2002
Evidence Based Medicine, Outcomes Research, and Health Care Organizations. National Clinical Advisory Group, Integrail, Inc., Albany, New York. 2002
Evidence Based Medicine. With Dr. LK Hohmann. The Empire State Advantage, Annual Excellence at Work Conference: Leading and Managing for Organizational Excellence, Albany, New York. 2002
Taking the Mystery out of Evidence Based Medicine: Providing Useful Answers for Clinicians and Patients. Breakfast Series, Institute for the Advancement of Health Care Management, School of Business, University at Albany, Albany, New York. 2001
Diagnosis and Management of Male Erectile Dysfunction – A Goal–Oriented Approach. Society of General Internal Medicine National Meeting, San Francisco, California. 1999
Study Design and Critical Appraisal of the Literature. Graduate Medical Education Lecture Series for all housestaff, Albany Medical College, Albany, New York. 1999 Male Impotence: Its Diagnosis and Treatment in the Era of Sildenafil. 4th Annual CME Day, Alumni Association of the Albany–Hudson Valley Physician Assistant Program, Albany, New York. 1998
Models For Measuring Physician Productivity. Panelist. National Association of VA Ambulatory Managers National Meeting, Memphis, Tennessee. 1997
Introduction to Male Erectile Dysfunction and the Role of Sildenafil in Treatment. Northeast Regional Meeting Pfizer Sales Representatives, Manchester Center, Vermont. 1997
Male Erectile Dysfunction. Topics in Urology, A Seminar for Primary Healthcare Providers, Bassett Healthcare, Cooperstown, New York. 1997
Evaluation and Treatment of the Patient with Impotence: A Practical Primer for General Internists. Society of General Internal Medicine National Meeting, Washington D.C. 1996
Impotence: An Update. Department of Medicine Grand Rounds, Albany Medical College, Albany, New York. 1996
Diabetes for the EMT First–Responder. Five Quad Volunteer Ambulance, University at Albany. Albany, New York. 1996
Impotence: An Approach for Internists. Medicine Grand Rounds, St. Mary's Hospital, Rochester, New York. 1994
Male Impotence. Common Problems in Primary Care Precourse. American College of Physicians National Meeting, Miami, Florida. 1994
Patient Motivation: A Key to Success. Tuberculosis and HIV: A Time for Teamwork. AIDS Program, Bureau of Tuberculosis Control – New York State Department of Health and Albany Medical College, Albany, New York. 1994

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Recognizing and Treating Impotence. Department of Medicine Grand Rounds, Albany Medical College, Albany, New York. 1992
Medical Decision Making: A Primer on Decision Analysis. Faculty Research Seminar, Department of Family Practice, Indiana University, Indianapolis, Indiana. 1992
Effective Presentation of Public Health Data. Bureau of Communicable Diseases, Indiana State Board of Health, Indianapolis, Indiana. 1991
Impotence: An Approach for Internists. Housestaff Conference, Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Using Electronic Databases to Search the Medical Literature. NIH/VA Fellows Program, Indiana University, Indianapolis, Indiana. 1991
Study Designs Used in Epidemiology. Ambulatory Care Block Rotation. Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Effective Use of Slides in a Short Scientific Presentation. Housestaff Conference, Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Impotence: A Rational and Practical Approach to Diagnosis and Treatment for the General Internist. Society of General Internal Medicine National Meeting, Washington D.C. 1991
Nirvana and Audio–Visual Aids. With Dr. RM Lubitz. Society of General Internal Medicine, Midwest Regional Meeting, Chicago. 1991
New Perspectives in the Management of Hypercholesterolemia. Medical Staff, West Seneca Developmental Center, West Seneca, New York. 1989
Effective Use of Audio–Visual Aids. Nurse Educators, American Diabetes Association, Western New York Chapter, Buffalo, New York. 1989
Management of Diabetics in the Custodial Care Setting. Medical Staff, West Seneca Developmental Center, West Seneca, New York, 1989
Effective Use of Audio–Visuals in Diabetes Peer and Patient Education. American Association of Diabetic Educators, Western New York Chapter, Buffalo, New York. 1989
Pathophysiology, Diagnosis and Care of Diabetes. Nurse Practitioner Training Program, School of Nursing, University of Buffalo, Buffalo, New York. 1989
Techniques of Large Group Presentations to Medical Audiences – Use of Audio–Visuals. New Housestaff Training Program, Graduate Medical Dental Education Consortium of Buffalo, Buffalo, New York. 1988

PUBLICATIONS/ABSTRACTS
Borschmann, R, Tibble, H, Spittal, MJ, … Stern, MF, Viner, KM, Wang, N, Willoughby, M, Zhao, B, and Kinner, SA. The Mortality After Release from Incarceration Consortium (MARIC): Protocolfor a multi-national, individual participant data meta-analysis. Int. J of Population Data Science 2019 5(1):6
Binswanger IA, Maruschak LM, Mueller SR, Stern MF, Kinner SA. Principles to Guide National Data Collection on the Health of Persons in the Criminal Justice System. Public Health Reports 2019 134(1):34S-45S
Stern M. Hunger Strike: The Inside Medicine Scoop. American Jails 2018 32(4):17-21
Grande L, Stern M. Providing Medication to Treat Opioid Use Disorder in Washington State Jails. Study conducted for Washington State Department of Social and Health Services under Contract 1731-18409. 2018.
Stern MF, Newlin N. Epicenter of the Epidemic: Opioids and Jails. American Jails 2018 32(2):16-18
Stern MF. A nurse is a nurse is a nurse…NOT! Guest Editorial, American Jails 2018 32(2):4,68
Wang EA, Redmond N, Dennison Himmelfarb CR, Pettit B, Stern M, Chen J, Shero S, Iturriaga E, Sorlie P, Diez Roux AV. Cardiovascular Disease in Incarcerated Populations. Journal of the American College of Cardiology 2017 69(24):2967-76
Mitchell A, Reichberg T, Randall J, Aziz-Bose R, Ferguson W, Stern M. Criminal Justice Health Digital Curriculum. Poster, Annual Academic and Health Policy Conference on Correctional Health, Atlanta, Georgia, March, 2017

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Stern MF. Patient Safety (White Paper). Guidelines, Management Tools, White Papers, National Commission on Correctional Health Care. http://www.ncchc.org/filebin/Resources/Patient-Safety-2016.pdf. June, 2016
Binswanger IA, Stern MF, Yamashita TE, Mueller SR, Baggett TP, Blatchford PJ. Clinical risk factors for death after release from prison in Washington State: a nested case control study. Addiction 2015 Oct 17
Stern MF. Op-Ed on Lethal Injections. The Guardian 2014 Aug 6
Stern MF. American College of Correctional Physicians Calls for Caution Placing Mentally Ill in Segregation: An Important Band-Aid. Guest Editorial. Journal of Correctional Health Care 2014 Apr; 20(2):92-94
Binswanger I, Blatchford PJ, Mueller SR, Stern MF. Mortality After Prison Release: Opioid Overdose and Other Causes of Death, Risk Factors, and Time Trends From 1999 to 2009. Annals of Internal Medicine 2013 Nov; 159(9):592-600
Williams B, Stern MF, Mellow J, Safer M, Greifinger RB. Aging in Correctional Custody: Setting a policy agenda for older prisoner health care. American Journal of Public Health 2012 Aug; 102(8):1475-1481
Binswanger I, Blatchford PJ, Yamashita TE, Stern MF. Drug-Related Risk Factors for Death after Release from Prison: A Nested Case Control Study. Oral Presentation, University of Massachusetts 4th Annual Academic and Health Policy Conference on Correctional Healthcare, Boston, Massachusetts, March, 2011
Binswanger I, Blatchford PJ, Forsyth S, Stern MF, Kinner SA. Death Related to Infectious Disease in Ex-Prisoners: An International Comparative Study. Oral Presentation, University of Massachusetts 4th Annual Academic and Health Policy Conference on Correctional Healthcare, Boston, Massachusetts, March, 2011
Binswanger I, Lindsay R, Stern MF, Blatchford P. Risk Factors for All-Cause, Overdose and Early Deaths after Release from Prison in Washington State Drug and Alcohol Dependence. Drug and Alcohol Dependence Aug 1 2011;117(1):1-6
Stern MF, Greifinger RB, Mellow J. Patient Safety: Moving the Bar in Prison Health Care Standards. American Journal of Public Health November 2010;100(11):2103-2110
Strick LB, Saucerman G, Schlatter C, Newsom L, Stern MF. Implementation of Opt-Out HIV testing in the Washington State Department of Corrections. Poster Presentation, National Commission on Correctional Health Care Annual Meeting, Orlando, Florida, October, 2009
Binswanger IA, Blatchford P, Stern MF. Risk Factors for Death After Release from Prison. Society for General Internal Medicine 32nd Annual Meeting; Miami: Journal of General Internal Medicine; April 2009. p. S164-S95
Stern MF. Force Feeding for Hunger Strikes – One More Step. CorrDocs Winter 2009;12(1):2
Binswanger I, Stern MF, Deyo RA, Heagerty PJ, Cheadle A, Elmore JG, Koepsell TD. Release from Prison – A High Risk of Death for Former Inmates. New England Journal of Medicine 2007 Jan 11;356(2):157–165
Stern MF, Hilliard T, Kelm C, Anderson E. Epidemiology of Hepatitis C Infection in the Washington State Department of Corrections. Poster Presentation, CDC/NIH ad hoc Conference on Management of Hepatitis C in Prisons, San Antonio, Texas, January, 2003
Phelps KR, Stern M, Slingerland A, Heravi M, Strogatz DS, Haqqie SS. Metabolic and skeletal effects of low and high doses of calcium acetate in patients with preterminal chronic renal failure. Am J Nephrol 2002 Sep–Dec;22(5–6):445–54
Goldberg L, Stern MF, Posner DS. Comparative Epidemiology of Erectile Dysfunction in Gay Men. Oral Presentation, International Society for Impotence Research Meeting, Amsterdam, The Netherlands, August 1998. Int J Impot Res. 1998;10(S3):S41 [also presented as oral abstract Annual Meeting, Society for the Study of Impotence, Boston, Massachusetts, October, 1999. Int J Impot Res. 1999;10(S1):S65]
Stern MF. Erectile Dysfunction in Older Men. Topics in Geriatric Rehab 12(4):40–52, 1997. [republished in Geriatric Patient Education Resource Manual, Supplement. Aspen Reference Group, Eds. Aspen Publishers, Inc., 1998]
Stern MF, Wulfert E, Barada J, Mulchahy JJ, Korenman SG. An Outcomes–Oriented Approach to the Primary Care Evaluation and Management of Erectile Dysfunction. J Clin Outcomes Management 5(2):36–56, 1998
Fihn SD, Callahan CM, Martin D, et al.; for the National Consortium of Anticoagulation Clinics.* The Risk for and Severity of Bleeding Complications in Elderly Patients Treated with Warfarin. Ann Int Med. 1996;124:970–979
Fihn SD, McDonell M, Martin D, et al.; for the Warfarin Optimized Outpatient Follow–up Study Group.* Risk Factors for Complications of Chronic Anticoagulation. Ann Int Med. 1993;118:511–520. (*While involved in the original proposal development and project execution, I was no longer part of the group at the time of this publication)
Stern MF, Dittus RS, Birkhead G, Huber R, Schwartz J, Morse D. Cost–Effectiveness of Hepatitis B Immunization Strategies for High Risk People. Oral Presentation, Society of General Internal Medicine National Meeting, Washington, D.C., May 1992. Clin Res 1992
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Fihn SD, McDonell MB, Vermes D, Martin D, Kent DL, Henikoff JG, and the Warfarin Outpatient Follow–up Study Group. Optimal Scheduling of Patients Taking Warfarin. A Multicenter Randomized Trial. Oral Presentation, Society of General Internal Medicine National Meeting, Washington, D.C., May 1992. Clin Res 1992
Fihn SD, McDonnell MB, Vermes D, Kent DL, Henikoff JG, and the Warfarin Anticoagulation Study Group. Risk Factors for Complications During Chronic Anticoagulation. Poster Presentation, Society of General Internal Medicine National Meeting, Seattle, May 1991
Pristach CA, Donoghue GD, Sarkin R, Wargula C, Doerr R, Opila D, Stern M, Single G. A Multidisciplinary Program to Improve the Teaching Skills of Incoming Housestaff. Acad Med. 1991;66(3):172–174
Stern MF. Diagnosing Chlamydia trachomatis and Neisseria gonorrhea Infections. (letter) J Gen Intern Med. 1991;6:183
Stern MF, Fitzgerald JF, Dittus RS, Tierney WM, Overhage JM. Office Visits and Outcomes of Care: Does Frequency Matter? Poster Presentation, Society of General Internal Medicine Annual Meeting, Seattle, May 1991. Clin Res 1991;39:610A
Stern MF. Cobalamin Deficiency and Red Blood Cell Volume Distribution Width. (letter) Arch Intern Med. 1990;150:910
Stern M, Steinbach B. Hypodermic Needle Embolization to the Heart. NY State J Med. 1990;90(7):368–371
Stern MF, Birkhead G, Huber R, Schwartz J, Morse D. Feasibility of Hepatitis B Immunization in an STD Clinic. Oral Presentation, American Public Health Association Annual Meeting, Atlanta, November 1990

EXPERT TESTIMONY Pajas v. County of Monterey, et al. US District Court for the Northern District of California, 2019 (trial) Dockery, et al. v. Hall et al. US District Court for the Southern District of Mississippi Northern Division, 2018 (trial) Benton v. Correct Care Solutions, et al. US District Court for the District of Maryland, 2018 (deposition) Pajas v. County of Monterey, et al. US District Court Northern District of California, 2018 (deposition) Walter v. Correctional Healthcare Companies, et al. US District Court, District of Colorado, 2017 (deposition) Winkler v. Madison County, Kentucky, et al. US District Court, Eastern District of Kentucky, Central Division at Lexington, 2016 (deposition) US v. Miami-Dade County, et al. US District Court, Southern District of Florida, periodically 2014 - 2016

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EXHIBIT 9
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DECLARATION OF PROFESSOR JUDITH RESNIK REGARDING ENLARGEMENT AND THE USE OF PROVISIONAL REMEDIES
FOR DETAINED INDIVIDUALS
I have been asked to make this declaration to explain my understanding of the remedies, both provisional and permanent, that federal judges can provide to people who are incarcerated and facing the threat of COVID-19. Because I have practiced in the federal courts for decades and represented prisoners in federal court, I have had personal experience with the use of enlargement in habeas corpus cases. Given that this provisional remedy is not regularly discussed in reported decisions or in academic analyses, I believe that my experiences and knowledge can be useful to the Court. This opinion is mine and is not that of the institutions with which I am affiliated. I declare that the following is a true and accurate account of my own work as a lawyer, of the pertinent legal principles as I understand them, and of how these precepts can apply in this unprecedented context.
My Background
1. I have worked on occasion as a lawyer, including in the clinical programs at Yale Law School and at the University of Southern California Law Center (USC), where I taught for more than a decade before returning to Yale Law School. I have appeared before the United States Supreme Court and in federal district and appellate courts. I have also been appointed by federal judges to assist in issues arising in large-scale litigation. Below, I provide a few aspects of my work particularly relevant to this declaration. I attach my resume as Exhibit A to this Declaration.
2. From 1977 until 1980, I was a supervising attorney at Yale Law School’s clinical program, which then provided legal services to federal prisoners housed at F.C.I. Danbury. From 1980 to 1996, I taught at USC in both traditional classroom and clinical settings.
3. I am now the Arthur Liman Professor of Law at Yale Law School where I teach courses, including on federal and state
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courts; procedure; large-scale litigation; federalism; and incarceration.

4. I have taught law for decades. Much of my focus has been on the role and function of courts, and the relationship of governments to their populations. I regularly teach the class entitled Federal and State Courts in the Federal System. Readings for students include materials on habeas corpus and on civil rights litigation.

5. In 2018, I was awarded an Andrew Carnegie Fellowship to work on a book, tentatively entitled Impermissible Punishments, which explores the impact of the 1960s civil rights revolution on the kinds of punishments that governments can impose on people convicted of crimes. Central to this book is the role that access to courts played for people held in detention.

6. I am the Founding Director of the Arthur Liman Center for Public Interest Law. The Liman Center teaches classes yearly, convenes colloquia, does research projects, supports graduates of Yale Law School to work for one year in public interest organizations, and is an umbrella for undergraduate fellowships at eight institutions of higher education.

7. I write about the federal courts; adjudication and alternatives such as arbitration; habeas corpus and incarceration; class actions and multi-district litigation; the judicial role and courts’ remedies; gender and equality; and about transnational aspects of these issues. In recent years, I have spent a good deal of time doing research related to prisons. I have helped to develop a series of reports that provide information nation-wide on the use of solitary confinement.

8. In February of 2019, I testified before the U.S.

Commission on Civil Rights at its hearing on women in prison and

co-authored a statement related to the isolation of many facilities

for women, their needs for education and work training, and the

discipline to which they are subjected. See Statement submitted

for the record, Women in Prison: Seeking Justice Behind Bars,

before the U.S. Commission on Civil Rights, March 22, 2019. The

report, published a few months ago, references this testimony. See

U.S. Commission on Civil Rights, Women in Prison: Seeking Justice

Behind

Bars

(February

2020),

available

at

https://www.usccr.gov/pubs/2020/02-26-Women-in-Prison.pdf.

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Remedies Available in the Federal Courts: Habeas Corpus, Civil Rights Litigation, and Enlargement
9. In light of my knowledge of the federal law of habeas corpus, state and federal court relations, procedure, and remedies, I have been asked by counsel for the petitioners/plaintiffs to address the range of responses available to judges presiding in cases that raise claims related to COVID19. I have submitted a declaration akin to this one in a few other cases.
10. As I understand from public materials on the health risks of this disease, COVID-19 poses a deadly threat to the well-being and lives of people who contract this disease. To reduce the risk and spread of this disease, our governments have instructed us to stay distant from others and to take measures that are extraordinary departures from our daily lives and routines.
11. Applying these urgent medical directives to prisons poses challenges in every jurisdiction. Governing legal principles about prisoners’ access to courts were not framed to address COVID19’s reality: that being inside prisons that are densely populated can put large numbers of people (prisoners and staff) at risk of immediate serious illness and potential death.
12. These unprecedented risks from and harms of COVID-19 in prison raise a new legal question: whether COVID-19 has turned sentences which, when imposed, were (or may have been) constitutional into unconstitutional sentences during the pendency of this crisis.
13. When sentencing people to a term of years of incarceration, judges had no authority to impose putting a person at grave risk of serious illness and death as part of the punishment for the offense. Now, such grave risks and harms can arise from the fact of incarceration.
14. A recent Supreme Court case, Montgomery v. Louisiana, 136 S.Ct. 718 (2016), provides an analogous situation of sentence that was constitutional at sentencing but unconstitutional now. The Court determined that, in light of new understandings of the limits of brain development in juveniles, sentences of life without parole (LWOP) imposed on individuals who had committed crimes when under the age of eighteen were lawful when issued but became unconstitutional. As a consequence, parole boards or courts had to reconsider whether LWOP remained appropriate. COVID-19 raises a parallel question, as it requires courts to address whether
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sentences lawful at imposition can (at least temporarily) no longer be served in prisons because otherwise, the sentence would become an unconstitutional form of punishment. In these abnormal times, the speed at which decisions are made is critical. Therefore, as I discuss below, provisional remedies (enabling enlargement and release for some individuals and de-densifying for others) are necessary.
15. The classic and longstanding remedy for relief from unconstitutional detention, conviction, and sentences is habeas corpus. The Constitution enshrined the remedy of habeas corpus, which has a substantial common law history and is codified in federal statutes. See generally Paul D. Halliday, Habeas Corpus (Harvard U. Press, 2012); Amanda L. Tyler, Habeas Corpus in Wartime (Oxford U. Press, 2017); Randy Hertz and James Liebman, Federal Habeas Corpus Practice and Procedure (2 volumes, 2019); Hart & Wechsler, The Federal Courts and the Federal System, Chapter X1, 1193-1164 (Richard H. Fallon, Jr, John F. Manning, Daniel J. Meltzer & David Shapiro, 7th ed., 2015). These citations are the tip of a vast and substantial literature that aims to understand the history and law of habeas corpus.
The Legal Thicket
16. As is familiar, in federal courts, federal petitioners file under 28 U.S.C. §2255 (post-conviction motions) and under §2241 (the general habeas statute), both of which are civil actions.
17. For example, when I worked at Yale Law School in its clinical program in the late 1970s, we filed lawsuits for federal prisoners predicated on 28 U.S.C. §2241 as well as (in appropriate situations) on 28 U.S.C. §1331 (general question jurisdiction) and 28 U.S.C. §1361 (mandamus), and in several instances, we filed cases as class actions. In the mid-1970s, the Supreme Court provided rules and forms for §2254 and §2255 filings. The Federal Rules of Civil Procedure supplement those rules, as recognized in F.R.Civ.Pro. 81(a)(4).
18. Congress has recognized that federal judges are authorized under the habeas statutes to “summarily hear and determine the facts, and dispose of the matter as law and justice require.” See 28 U.S.C. §2243. In addition to this statutory authority, federal judicial power is predicated on the constitutional protection of the writ and on the common law.
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19. Congress has channeled and circumscribed some of federal judicial authority through the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and, relatedly, under the Prison Litigation Reform Act (PLRA) of 1996.
20. Moreover, the Supreme Court has issued many decisions interpreting the prior habeas statutes, the 1996 revisions in AEDPA, and the intersection of habeas and civil rights claims brought under 42 U.S.C. §1983. The result is a dense arena of law and doctrine that can be daunting for litigants and jurists alike.
21. Some Supreme Court decisions, written to address claims by state prisoners, have delineated litigation focused on the fact or duration of confinement, for which release is the remedy and habeas is the preferred route, from challenges to conditions of confinement, for which the Court has required use of 42 U.S.C. §1983. See, e.g., Preiser v. Rodriguez, 411 U.S. 475 (1978); Heck v. Humphrey, 512 U.S. 477 (1994). Yet that distinction is hard to apply, and many opinions have identified that the overlap, as exemplified by Mohammad v. Close, 540 U.S. 744 (2004), Wilkinson v. Dotson, 544 U.S. 74 (2005), and by other Supreme Court and lower court decisions.
22. COVID-19 poses a new and painful context in which to undertake that analysis. Some reported decisions addressing the constitutional right of prisoners that officials not be “deliberately indifferent to serious medical needs” consider those Eighth Amendment claims to be appropriate for §1983 because they relate to conditions. But this deadly disease turns ordinary conditions into potentially lethal threats of illness for which the remedy to consider is release of at least some prisoners because density puts people at medical risk.
23. Because COVID-19 can end people’s lives unexpectedly and abruptly, COVID-19 claims turn the condition of being incarcerated into a practice that affects the fact or duration of confinement. In my view, COVID-19 claims, therefore, collapse the utility and purpose of drawing distinctions between what once could more coherently be distinguished.
24. Courts need also to consider how COVID-19 fits (or not) with provisions of AEDPA and the parameters of the PLRA. Again, new problems have emerged. For example, in some contexts for state and federal prisoners, a question of exhaustion of remedies arises. Often one issue is the ability of the executive branch to respond
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quickly. In the COVID context, day by day, the risk of illness increases for prisoners and staff, which endanger health care resources. Exhaustion would be “futile” if other branches of government are not prompt in response and if people become sick, risks skyrocket, and deaths occur.
25. “Futility” thus needs to be analyzed in terms not only of the capacity of institutions but in terms of the likelihood that the people seeking relief will be well enough to have the capacity to do so, and that the remedy provided will be effective given the alleged harm.
26. Other legal issues include when class actions or other forms of multi-party treatment are appropriate and if so, whether the criteria such as those of Rule 23 are met; the merits of arguments about unconstitutional sentences and conditions; and the range of remedies. Furthermore, circuit case law varies somewhat on the use and application of the Federal Rules of Civil Procedure in habeas filings and on the scope and the interpretation of 28 U.S.C. §2241.
The Availability of Provisional Remedies
27. The reason to flag some of the many issues that litigation of both habeas petitions and civil rights cases entail is to underscore the importance of considering provisional remedies when cases are pending. In general, time is required for lawyers to brief and for judges to interpret and apply the law. But waiting days in a world of COVID infections can result in the loss of life.
28. While courts have not faced COVID before, they have faced urgent situations, which is why provisional legal remedies exist. Courts have two ways to preserve the status quo – which here means protecting to the extent possible the health of prisoners, staff, and providers of medical services. One route is the use of temporary restraining orders and preliminary injunctions. These remedies require no explanation because they are familiar procedures. See Fed. R. Civ. Pro. 65.
29. Another option is an aspect of federal judicial power that is less well known. District courts have authority when habeas petitions are pending to “enlarge” the custody of petitioners. “Enlargement” is a term that, as far as I am aware, is used only in the context of habeas. (More familiar terms for individuals permitted to leave detention are “release” and “bail,” and some
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decision that “enlarge” petitioners use those words rather than enlargement).
30. The distinction is that enlargement is not release. The person remains in custody - even as the place of custody is changed and thus “enlarged” from a particular prison to a hospital, halfway house, a person’s home, or other setting. Enlargement is a provisional remedy that modifies custody by expanding the site in which it takes place.
31. Enlargement has special relevance when the PLRA has application. As I understand the PLRA’s rules on the “release” of prisoners, enlargement would not apply, as enlargement is not a release order. And, of course, interpreting the many directives of the PLRA in light of COVID entails more elaboration that my comments here.
32. The need to work through that statute and case law is another reason why the availability of provisional remedies is so important. Enlargement provides an opportunity for increasing the safety of prisoners, staff, and their communities while judges consider a myriad of complex legal questions.
33. I first encountered the provisional remedy of enlargement in the 1970s, when I represented a prisoner – Robert Drayton – who was confined at F.C.I. Danbury and who filed a habeas petition alleging that the U.S. Parole Commission had unconstitutionally rescinded his parole.
34. The Honorable T.F. Gilroy Daly, a federal judge sitting in the District of Connecticut, granted Mr. Drayton’s request for enlargement while the decision on the merits was pending. Mr. Drayton returned to his home in Philadelphia and came back to Connecticut for the merits hearing. Judge Daly thereafter ruled in his favor; that decision was upheld in part and reversed in part. See Drayton v. U.S. Parole Commission, 445 F. Supp. 305 (D. Conn. 1978), affirmed in part, Drayton v. McCall, 584 F.2d 1208 (2d Cir. 1978).
35. Judge Daly did not write a decision explaining the enlargement. Given that I knew that the use of enlargement was not always recorded in published decisions and that enlargement had special relevance here, I decided I should learn more about other courts’ discussion of this provisional remedy.
36. The provisional district court remedy of enlargement is not mentioned directly in in federal rules governing the lower
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federal courts. In contrast, at the appellate level, Federal Rule of Appellate Procedure (FRAP) 23 provides in part that:
While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner be: (1) detained in the custody from which release is sought; (2) detained in other appropriate custody; or (3) released on personal recognizance, with or without surety. While a decision ordering the release of a prisoner is under review, the prisoner must – unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise – be released on personal recognizance, with or without surety.
As that excerpt reflects, the Rule uses language familiar in the context of bail and provides that appellate courts may also determine that a petitioner be detained in “other appropriate custody.”
37. Federal courts at all level are authorized by Congress to decide habeas cases “as law and justice requires.” 28 U.S.C. §2243. The case law also references that, at the district court level, the authority to release a habeas petitioner pending a ruling on the merits stems from courts’ inherent powers. See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). And, as I noted, in these reported decisions, the terms “bail” or “release” are sometimes used instead of or in addition to “enlargement.”
38. In the last weeks, the saliency of enlargement has prompted me to review more of the law surrounding it. To gather materials and opinions on enlargement, I asked two law students, Kelsey Stimson of Yale Law School and Ally Daniels of Stanford Law School, to help me research what judges have said about enlargement and what others have written. Below I detail some of the governing case law. The Hertz & Liebman Treatise on Habeas also has a section (§14.2) devoted to this issue.
39. Some of the decisions involve requests for release when habeas petitions were pending from state prisoners, and others from federal prisoners, or from people in immigration detention. Further, several appellate cases address the issue of whether a district court order on enlargement was appealable as of right or subject to mandamus.
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40. My central point is that, amidst these various debates about appealability and the test for enlargement/release, most circuits have recognized that district courts have the authority to order release pending final disposition of a habeas petition. See e.g., Woodcock v. Donnelly, 470 F.2d 93, 43 (1st Cir. 1972); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974); Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990); Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985); Martin v. Solem, 801 F.2d 324, 329 (8th Cir. 1986); Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981): Baker v. Sard, 420 F.2d 1342, 1342-44 (D.C. Cir. 1969).
41. The Fourth and Eleventh Circuits appear, albeit less directly, to recognize enlargement authority. See Gomez v. United States, 899 F.2d 1124, 1125 (11th Cir. 1990); United States v. Perkins, 53 F. App’x 667, 669 (4th Cir. 2002). A Ninth Circuit opinion from 1989 likewise appears to recognize the power of district courts to grant release pending a habeas decision where there are “special circumstances or a high probability of success.” See Land v. Deeds, 878 F.2d 318 (9th Cir. 1989). Thereafter, another decision, In re Roe, described the Circuit as not having ruled on the issue in terms of state prisoners. See 257 F.3d 1077 (9th Cir. 2001).1
42. A discrete question is the standard for enlarging petitioners. To obtain an order for release pending the merits of habeas decision, the petitioner must demonstrate “extraordinary circumstances” and that the underlying claim raises “substantial claims.” See e.g. Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). Courts have also discussed that release is appropriate when “necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 226; see also Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992). As that Third Circuit decision explained, release was “available ‘only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances
1 Subsequent lower court cases debated whether district courts do possess such authority. See, e.g., Hall v. San Francisco Sup. Ct., 2010 WL 890044, at *2 (N.D. Cal. Mar. 8, 2010) (“Based on the overwhelming authority [of other circuit courts] in support, the court concludes for purposes of the instant motion that it has the authority to release Hall pending a decision on the merits.”); United States v. Carreira, 2016 U.S. Dist. LEXIS 31210, at *4, (D. Haw. Mar. 10, 2016) (“[T]his Court declines to address the merits of Petitioner’s bail requests in the absence of definitive guidance from the Ninth Circuit regarding the scope of this Court’s bail authority.”).
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exist which make the grant of bail necessary to make the habeas remedy effective.’”
43. Some judges have interpreted the “substantial questions” prong to require the underlying claim to have a “high probability of success.” See Hall v. San Francisco Superior Court, No. C 095299 PJH, 2010 WL 890044, *1 (N.D. Cal. Mar. 8, 2010); In re Souels, 688 F. App'x 134, 135 (3d Cir. 2017). That test resembles standards for preliminary injunctive relief and for stays, which include an assessment of the likelihood of success on the merits and of whether the balance of hardships tips in favor of altering the status quo. (And, of course, more can be said about the nuances of these bodies of law as well.)
44. A few cases focus on the health of a petitioner as central to the conclusion that “extraordinary circumstances” exist. For example, in Johnston v. Marsh, the petitioner, Alfred Ackerman, brought a habeas claim alleging that he was convicted in Pennsylvania through a trial that lacked “due process.” 227 F.2d 528 (3d Cir. 1955). Ackerman asked for release pending a decision on the merits of his habeas petition; he argued that he had advanced diabetes and was “rapidly progressing towards total blindness.” Id. at 529. The district court authorized Ackerman to be released to a private hospital. The prison warden (Frank Johnston) went to the Third Circuit invoking sought writs of prohibition and mandamus to order the district court (Judge Marsh) to change his ruling. Rejecting the petitions, the Third Circuit affirmed that district courts possessed the authority to order relocation while the habeas petition was pending. Johnson v. Marsh has been cited in more recent cases to illustrate that findings of extraordinary circumstances may “be limited to situations involving poor health or the impending completion of the prisoner’s sentence.” Landano, 970 F.2d at 1239.
45. The court in In re Souels addressed what showing of health problems constituted extraordinary circumstances. See 688 F. App’x at 135-36. Sean Souels, who was serving a 46-month federal prison sentence, petitioned for a writ of mandamus directing the court to rule on his writ of habeas corpus and sought release pending the decision. Id. at 134. The court denied Souels bail because “he [did] not describe his medical conditions in any detail or explain how he cannot manage his health issues while he is in prison.” Id.
46. Health is not the only extraordinary circumstance that has been the basis for enlargement. For example, in United States v. Josiah, William Josiah brought a writ of habeas corpus after
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the Supreme Court invalidated the residual clause of the Armed Career Criminal Act (ACCA) and altered the method for determining whether prior convictions qualify as violent felonies under the ACCA. 2016 WL 1328101, at *2 (D. Haw. Apr. 5, 2016). Josiah, who was serving a federal prison sentence argued that his prior convictions did not qualify as violent felonies and that he should not be subject to the fifteen-year mandatory minimum. The district court concluded that because the issue of retroactivity was pending before the Supreme Court and Josiah would have served his full sentence if the Court held its prior ruling retroactive, release pending the higher court’s ruling was appropriate. Id. at *4-6.
47. In circumstances similar to Josiah, a district judge sitting in the Central District of Illinois issued three orders granting release, termed bail, to petitioners pending resolution of their habeas claims. See Zollicoffer v. United States, No. 1503337, 2017 WL 79636 (C.D. Ill. Jan. 9, 2017); United States v. Jordan, No. 04-20008, 2016 WL 6634852 (C.D. Ill. Nov. 9, 2016); Swanson v. United States, No. 15-03262, 2016 WL 5422048 (C.D. Ill. Sept. 28, 2016).
48. Another case involved enlargement in the context of the military. See Gengler v. U.S. through its Dep't of Def. & Navy, 2006 WL 3210020, at *6 (E.D. Cal. Nov. 3, 2006). As that court explained, a “district court has the inherent power to enlarge a petitioner on bond pending hearing and decision on his petition for writ of habeas corpus.” Id. at *5. The judge also noted that a “greater showing must be made by a petitioner seeking bail in a criminal conviction habeas ‘than would be required in a case where applicant had sought to attack by writ of habeas corpus an incarceration not resulting from a judicial determination of guilt.’” The court used the test of “exceptional circumstances and, at a minimum, substantial questions as to the merits.” Id. at 13. The court found “exceptional circumstances” based on the fact that the petitioner had been admitted to business school, had been granted permission by his commanding officer to attend, and would be forced to drop out if his custody were not enlarged. The court also ruled that “substantial questions as to the merits” existed because of alleged government errors in drafting the petitioner’s service agreement. Id. at *6.
49. As of this writing, a few reported cases discuss COVIDbased requests for enlargement while a habeas corpus proceeding is pending. In addition, many decisions address requests for release under federal statutes as well as other remedies.
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50. Given the fast pace of litigation and the many concerns

about people’s well-being, UCLA has created a website that is

regularly updated and compiles materials and decisions related to

COVID. See UCLA Law Covid-19 Behind Bars Data Project, available

at

https://docs.google.com/spreadsheets/d/1X6uJkXXS-

O6eePLxw2e4JeRtM41uPZ2eRcOA_HkPVTk/edit#gid=708926660.

51. Below I provide a few illustrations of decisions since April that are related to COVID and enlargement.

52. On April 7, the Honorable Jesse Furman, sitting in the Southern District of New York, granted on consent a motion styled “for bail” (the term used in the Second Circuit Mapp decision). Judge Furman ordered immediate release under specified conditions, pending the adjudication of the Section 2255 Motion. See United States v. Nkanga, No. 18-CR-00730 (S.D.N.Y., Apr. 7, 2020).

53. A second case involves a class action filed by Craig Wilson and others. See Wilson v. Williams, No. 4:20-cv-00794-JG, 2020 WL 1940882, at *1 (N.D. Ohio Apr. 22, 2020). Seeking to represent a class of all current and future prisoners of the Elkton Federal Correctional Institution (FCI) and a subclass of the medically vulnerable population, they sought relief because their continued incarceration subjected all FCI prisoners to substantial risk of harm in violation of the Eighth Amendment.

54. On April 22, 2020, the federal district court granted in part the request by the Wilson class for emergency relief, which included enlargement of a subclass of prisoners challenging the manner in which the sentence was served and hence cognizable as a habeas petition. See Wilson v. Williams, No. 4:20-cv-00794-JG, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020). The Sixth Circuit denied a stay soon thereafter. See Wilson v. Williams, No. 4:20CV-00794, 2020 WL 2308441, at *1 (6th Cir. May 8, 2020).

55. The Wilson case also cited to Money v. Pritzker, No. 120 CV 02094, 2020 WL 1920660, at *1 (N.D. Ill. April 10, 2020), a class action seeking relief on behalf of state prisoners, and the Wilson court referenced that I had also submitted a declaration similar to this one in that action. In Money, I discussed enlargement as well as the interaction between civil rights litigation and habeas corpus. Id. at *8–9. The Honorable Robert M. Dow, Jr. invoked my discussion, and the court determined not to grant the emergency relief sought by the plaintiff class. Id.

56. On May 12, 2020, the Honorable Michael Shea issued another decision responding to a petition challenging treatment of

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prisoners at three facilities that compromise FCI Danbury. In Martinez-Brooks v. Easter, 3-20-cv-00569-MPS, 2020 WL 2405350 (D. Conn., May 12, 2020). Judge Shea granted in part the request for a temporary restraining order and required “the Warden at FCI Danbury to adopt a process for evaluating inmates with COVID-19 risk factors for home confinement and other forms of release that is both far more accelerated and more clearly focused on the critical issues of inmate and public safety than the current process.” Id. at *1. He also ordered expedited discovery and scheduled a June hearing on the request for a preliminary injunction. Id. In that opinion, Judge Shea discussed enlargement as he analyzed the relief sought by the petitioners. Id. at *2
57. Another case has less relevance as it was brought by an unrepresented litigant, Richard Peterson, who had originally sought habeas corpus relief on a claim about education credits and then filed an emergency request for release from a California state prison due to COVID-19. Peterson v. Diaz, No. 2:19-CV-01480, 2020 WL 1640008, at *1 (E.D. Cal. Apr. 2, 2020). The district court noted that a class action raising COVID claims was pending in another federal court in California and that, while the court had the authority to release a person while a habeas petition was pending, Mr. Peterson had not provided evidence sufficient to meet the test to do so. Id.
Conclusion
58. In sum, COVID-19 is an unprecedented event that, in my view, raises the legal question of whether, in light of the government mandates for social distancing, sentences (that had been lawful when they were imposed) cannot lawfully be served when the setting puts an individual in a position of untenable risk. Thus, habeas corpus – which addresses the constitutionality of sentences and offers the possibility of release and enlargement – properly provides a jurisdictional basis and remedies for this situation.
59. I need also to note that, in recent years, the Supreme Court has raised questions in many contexts about the remedial powers of federal judges. Whether the topic is nationwide injunctions or commercial contracts, debates have occurred within the Court about the authority of federal judges.
60. Those cases do not address the extraordinary and painful moment in which we are all living. Ordinary life has been up-ended in an effort to keep as many people as possible alive and not
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debilitated by serious illness. Moreover, the Supreme Court opinions have not focused on the relevance of those remedial debates to situations were confinement can put entire staffs and detained populations at mortal risk. Therefore, judges have the obligation and the authority to interpret statutes and the Constitution to preserve the lives of people living in and working in prisons. It is my hope that this account of earlier uses of enlargement and the dense account of case law and doctrine will be of service to this Court and to the parties in understanding the meaning and import of American law. Dated: May 14, 2020
__________________________ Judith Resnik
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Judith Resnik

Address Yale Law School 127 Wall Street, P.O. Box 208215 New Haven, CT 06520-8215

Tel: (203) 432-1447 Fax: (203) 432-1719 Email: judith.resnik@yale.edu

Employment Arthur Liman Professor of Law, Yale Law School, 1997-present Founding Director, Arthur Liman Center for Public Interest Law Honorary Visiting Professor, University College London Faculty of Law, 2009-2021 Visiting Professor, Dauphine Université Paris, March 2016 Visiting Professor, Université Panthéon-Assas Paris II, May 2015 Convening Professor, Constituting Federalism, a seminar for the Institute for Constitutional History in conjunction with the New York Historical Society, February 2014 Scholar in Residence, Columbia Law School, Spring 2011; 2012 Distinguished Visiting Professor, University of Toronto School of Law, 2005 Parsons Visitor, Sydney University School of Law, 2004
Visiting Professor, New York University School of Law, 1996-1997 Visiting Professor, Harvard Law School, Fall 1989 Visiting Professor, Yale Law School, Spring 1989 Visiting Professor, University of Chicago Law School, Fall 1988
Orrin B. Evans Professor of Law, University of Southern California, 1989-1997; Professor of Law: 1985-1989; Associate Professor: 1982-1985; Assistant Professor: 1980-1982 Member, Faculty, The Salzburg Seminar on U.S. Legal Institutions, July 1988
Acting Director, Daniel and Florence Guggenheim Program in Criminal Justice, Yale Law School, 1979-1980
Lecturer in Law and Supervising Attorney, Yale Law School, 1977-1979
Instructor, New York University School of Law, 1976-1977
Law Clerk, Honorable Charles E. Stewart, United States District Court, Southern District of New York, 1975-1976
Selected Professional Activities Chair of Fellows Selection Committee and Founding Director, Arthur Liman Center for Public Interest Law, Yale Law School, 1997-present

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Chair, Yale Law School Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2012-present
Member, Board of Managerial Trustees, International Association of Women Judges, 2001-present
Chair, Order of the Coif Book Award Committee, 2018-2020 Fellow, Whitney Humanities Center, 2020-2021 Chair, American Association of Law Schools, Section on Law and Humanities, 2020 Chair, American Association of Law Schools, Section on its Sections, 2019-2022 Advisor, American Law Institute, Project on Sexual and Gender-Based Misconduct on
Campus, 2015-present Member, Task Force on Federal Judicial Selection, Project on Government Oversight of
The Constitution Project, 2019 Steering Committee, Women Faculty Forum, Yale University, 2001-present
Co-chair, 2001-2003, 2006-2008 Co-Chair, Judicial-Academic Network, National Association of Women Judges,
2009-2019, 1998-2001 Academic Fellow, Pound Civil Justice Institute, 2016-present Fellow, Davenport College, Yale University, 2002-present Former Chair, Section on Civil Procedure, American Association of Law Schools;
2018, 2003, 1991 Member, Executive Committee, Section on Federal Courts, American Association of
Law Schools, 1999-2004, 2014-present; chair, 2002 Member, Executive Committee, Section on Law and the Humanities, American
Association of Law Schools, 2015-present Member, Academic & Scientific Council, The Gender Equality Project, Switzerland,
2009-present Advisor, European Law Institute and International Institute for the Unification of Private
Law Project, From Transnational Principles to Rules of European Civil Procedure, 2015-2016 Member, Executive Session, State Courts in the Twenty-First Century, The Kennedy School, Harvard University, 2008-2011 Member, Advisory Group, Principles of the Law of Aggregate Litigation, American Law Institute, 2004-2009 Member, Standing Committee on Federal Judicial Improvements, American Bar Association, 2006-2010 (prior three-year term in the late 1990s); Chair, Academic Advisory Committee to the Standing Committee on Federal Judicial Improvements, American Bar Association, 2010-2014 Member, Editorial Board, Yale Journal of Law and Feminism Member, Editorial Advisory Board, Yale Journal of Law and the Humanities Member, Advisory Board, Journal of Law and Ethics of Human Rights Member, Advisory Board, Litigation and Procedure, and Negotiation and Dispute Resolution eJournals (Social Science Research Network, online) Member, Advisory Board, Women’s Studies Quarterly

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Other Activities Co-chair of the Board, Fansler Foundation, 2003-2014 Member, National Board of Academic Advisors for the William H. Rehnquist Center on the Constitutional Structures of Government, 2007-2009 Member, Advisory Board of the Science for Judges Project, Brooklyn Law School, 2003-2007 Board Member, Lawyers’ Committee for Civil Rights, 2004-2007 Liaison, American Association of Law Schools to the American Bar Association Commission on Women, 2000-2005 Member, Advisory Board of the Center for Judicial Process, Albany Law School, 2000-2004 Member, Editorial Board, Law and Social Inquiry, 1998-2004 Member, Committee on Diversity in Legal Education of the Section of Legal Education and Admissions to the Bar of the American Bar Association, 1996-2002 Consultant, RAND, Institute for Civil Justice, 1980-2002 Member, Editorial Board, The Justice System Journal Member, Board of Governors, Society of American Law Teachers, 1980-1997 Co-Chair, University of Southern California Feminist Council, 1990-1996 Member, Ninth Circuit Gender Bias Task Force, 1990-1994 Co-Chair, Robert M. Cover Memorial Public Interest Retreat, Society of American Law Teachers, 1988-1992 Member of and a general reporter for the International Association of Procedural Law, 1991 Conference Member, Planning Committee, ABA-AALS Conference on Women in Legal Education, 1990 Member, Advisory Panel to a Subcommittee of the Federal Courts Study Committee, 1989-1990 Member, Steering Committee for the Center for Feminist Research, University of Southern California, 1990-1994 Member, American Bar Association, Litigation Section, Federal Initiatives Task Force, 1991-1993 Chair, Section on Women in Legal Education, American Association of Law Schools, 1989 Member, Twentieth Century Fund Task Force on Judicial Responsibility, 1988-1989 Member, Board of ACLU of Southern California, 1985 Chair, Bryn Mawr College Centennial Campaign for Southern California, 1983-1985

Courses taught at Yale Law School, 1997-2020 Federal and State Courts in the Federal System Procedure Equality, Sovereignty and Citizenship (with Prof. Reva Siegel) Gender: Globally and Locally (with Prof. Vicki Jackson) Liman Workshops (topics and co-teachers vary yearly) Rationing Law: Subsidizing Access to Justice in Democracies Poverty and the Courts: Fines, Fees, Bail, and Collective Redress

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Who Pays? Fines, Fees, Bail, and the Cost of Courts Imprisoned Human Rights, Incarceration, and Criminal Justice Reform Moving Criminal Justice: Practices of Reform Incarceration Borders Rationing Law: Constitutional Entitlements to Courts in an
Era of Fiscal Austerity Abolition: Slavery, Supermax, and Social Movements Accessing Justice and Rights – From Streets to Prisons Community, Confinement, Labor, and Rights Equality, Punishment, and Incarceration Imprisoned Detention Federalism and Social Movements: Public Interest Lawyering
in Cities and States Citizenship Constitutional Law as Public Interest Law

Publications Books and Monographs

Fragile Futures and Resiliency: Litigating Climate Change, Judging Under Stress (coeditor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2019)

Ability to Pay (co-editors Anna VanCleave, Alexandra Harrington, Jeff Selbin, Lisa Foster, Joanna Weiss, Faith Barksdale, Alexandra Eynon, Stephanie Garlock, and Daniel Phillips, Arthur Liman Center for Public Interest Law Colloquium, 2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3387647

Working to Limit Restrictive Housing: Efforts in Four Jurisdictions to Make Changes (editor, Arthur Liman Center for Public Interest Law and Association of State Correctional Administrators, 2018).

Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-inCell (co-author, Arthur Liman Center for Public Interest Law and Association of State Correctional Administrators, 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3264350

Global Reconfigurations, Constitutional Obligations, and Everyday Life (co-editor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2018)

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Who Pays? Fines, Fees, Bail, and the Cost of Courts (co-editors Anna VanCleave, Kristen Bell, Skylar Albertson, Natalia Friedlander, Illyana Green, and Michael Morse, Arthur Liman Center for Public Interest Law Colloquium, 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3165674

Reconstituting Constitutional Orders (co-editor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2017)

Aiming to Reduce Time-In-Cell: Reports from Correctional Systems on the Numbers of Prisoners in Restricted Housing and on the Potential of Policy Changes to Bring About Reforms (co-author, Yale Law School Arthur Liman Public Interest Program and Association of State Correctional Administrators, 2016)

Rethinking ‘Death Row’: Variations in the Housing of Individuals Sentenced to Death (co-authors Celina Aldape, Ryan Cooper, Katie Haas, April Hu, Jessica Hunter, and Shellie Shimizu, Arthur Liman Public Interest Program, 2016), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2874492

Acts of State, Acts of God (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2016)

Time-in-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison (co-author, Yale Law School Arthur Liman Public Interest Program and Association for State Correctional Administrators, 2015), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2655627

The Reach of Rights (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2015)

The Invention of Courts, Daedalus: Journal of the American Academy of Arts and Sciences (co-editor Linda Greenhouse, Summer 2014)

Isolation and Reintegration: Punishment Circa 2014 (co-editors Hope Metcalf and Megan Quattlebaum, Arthur Liman Public Interest Program Colloquium, 2014)

Sources of Law and of Rights (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2014)

Governments’ Authority (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2013)

Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies (co-authors Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Julia Spiegel, Haran Tae, Alyssa

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Work, and Brian Holbrook , Arthur Liman Public Interest Program, 2013), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2286861

Law’s Borders (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2012)

Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (with Dennis E. Curtis, Yale University Press, 2011)

Federal Courts Stories (co-editor Vicki Jackson, Foundation Press, 2010)

Migrations and Mobilities: Citizenship, Borders, and Gender (co-editor Seyla Benhabib, New York University Press, 2009)

The Processes of the Law: Understanding Courts and Their Alternatives (Foundation Press, 2004)

Adjudication and Its Alternatives: An Introduction to Procedure (with Owen Fiss, Foundation Press, 2003)

The Effects of Gender: The Final Report of the Ninth Circuit Gender Bias Task Force (July 1993) (with The Hon. John C. Coughenour, The Hon. Proctor Hug, Jr., The Hon. Marilyn Patel, Terry W. Bird, Deborah R. Hensler, M. Margaret McKeown, and Henry Shields, Jr.), also reprinted in 67 Southern California Law Review 745 (1994)

Procedure (with Robert Cover and Owen Fiss, Foundation Press, 1988)

The Federal Procedural System: A Rule and Statutory Source Book (with Robert Cover and Owen Fiss, Foundation Press, 1988, 1989, 1991)

Chapters in Books Not Isolating Isolation, in Solitary Confinement: History, Effects, and Pathways to
Reform at 89-114 (Jules Lobel and Peter Scharff-Smith, eds., Oxford University Press, 2020)

Courts and Economic and Social Rights/Courts as Economic and Social Rights, in The Future of Economic and Social Rights at 259-286 (Katharine G. Young, ed., Cambridge University Press, 2019)

The Functions of Publicity and of Privatization in Courts and their Replacements (from Jeremy Bentham to #MeToo and Google Spain) in Open Justice: The Role of Courts in a Democratic Society at at 177-252 (Burkhard Hess and Ana Koprivica, eds., Max Planck Institute, Luxembourg, Nomos, 2019)

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Judicial Methods of Mediating Conflicts: Recognizing and Accommodating Differences in Pluralist Legal Regimes, in Judicial Power: How Constitutional Courts Affect Political Transformations at 250-280 (Christine Landfried, ed., Cambridge University Press, 2019)

On Darkness and Light in Legal Imagination and in Practice, in The Dark Sides of the Law: Perspectives on Law, Literature, and Justice in Common Law Countries at 13-29 (Geraldine Gadbin-George, Yvonne-Marie Rogez, Armelle Sabatier, and Claire Wrobel, eds., Editions Michel Houdiard, 2019)

Bordering by Law: The Migration of Law, Crimes, Sovereignty, and the Mail, in Nomos LVII: Immigration, Emigration, and Migration, at 79-201 (Jack Knight, ed., New York University Press, 2017)

Why Eyes? Cautionary Tales from Law’s Blindfolded Justice (with Dennis E. Curtis), in Blinding as a Solution to Bias in Biomedical Science and the Courts: A Multidisciplinary Approach, at 227-247 (Aaron Kesselheim and Christopher Robertson, eds., Elsevier Press, 2016)

Constructing the “Foreign:” American Law’s Relationship to Non-Domestic Sources, in Courts and Comparative Law, at 437-471 (Mads Andrenas and Duncan Fairgrieve, eds., Oxford University Press, 2015)

Epistemological Doubt and Visual Puzzles of Sight, Knowledge, and Judgment: Reflections on Clear-Sighted and Blindfolded Justices (with Dennis E. Curtis), in Genealogies of Legal Vision, at 201-242 (Peter Goodrich and Valérie Hayaert, eds., London: Routledge, 2015)

Federalism(s)’s Forms and Norms: Contesting Rights, De-Essentializing Jurisdictional Divides, and Temporizing Accommodations, in Nomos LV: Federalism and Subsidiarity, at 363-435 (James E. Fleming and Jacob T. Levy, eds., New York University Press, 2014)

Constructing Courts: Architecture, the Ideology of Judging, and the Public Sphere (with Dennis E. Curtis and Allison Tait), in Law, Culture & Visual Studies, at 547-572 (Richard K. Sherwin and Anne Wagner, eds., Springer Publishing Company, 2013)

“Hear the Other Side:” Miranda, Guantánamo, and Public Rights to Fairness and Dignity, in Law and the Quest for Justice, at 85-109 (Marjorie S. Zatz, Doris Marie Provine, and James P. Walsh, eds., Quid Pro Books, 2013)

Old and New Depictions of Justice: Reflections, Circa 2011, on Hill-Thomas, in I Still Believe Anita Hill, at 51-70 (Amy Richards and Cynthia Greenberg, eds., The Feminist Press, 2012)

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Changing the Climate: The Role of Translocal Organizations of Government Actors (TOGAs) in American Federalism(s), in Navigating Climate Change Policy: The Opportunities of Federalism, at 120-143 (Edella C. Schlager, Kirsten H. Engel, and Sally Rider, eds., The University of Arizona Press Tucson, 2011)
Sisterhood, Slavery and Sovereignty: Transnational Women’s Rights Movements from 1840 through the Beginning of the Twenty-first Century, in Women’s America: Seventh Edition, at 781-790 (Linda Kerber, Cornelia Hughes Dayton, and Jane De Hart, eds., Oxford University Press, 2010)
New Federalism(s): Translocal Organizations of Government Actors (TOGAs) Reshaping Boundaries, Policies, and Laws, in Why the Local Matters: Federalism, Localism, and Public Interest Advocacy, at 83-99 (published by the Liman Public Interest Program at Yale Law School, and the National State Attorneys General Program at Columbia Law School, 2010)
Managerial Judges, Jeremy Bentham and the Privatization of Adjudication, in Common Law, Civil Law and the Future of Categories, at 205-224 (Janet Walker and Oscar G. Chase, eds., LexisNexis Canada, 2010), also published in 49 S.C.L.R. (2d) 205 (2010)
What’s Federalism For?, in The Constitution 2020, at 269-284 (Jack Balkin and Reva Siegel, eds., Oxford University Press, 2009)
Judicial Independence, in Global Perspectives on Constitutional Law, at 15-33 (Vikram David Amar and Mark V. Tushnet, eds., Oxford University Press, 2008)
From “Rites” To “Rights” of Audience: The Utilities and Contingencies of the Public’s Role in Court-Based Processes (with Dennis E. Curtis) in Representation of Justice, at 195-236 (Antoine Masson and Kevin O’Connor, eds., P.I.E. - Peter Lang, 2007)
Sisterhood, Slavery, and Sovereignty: Transnational Antislavery Work and Women’s Rights Movements in the United States During the Twentieth Century, in Women’s Rights and Transatlantic Antislavery in the Era of Emancipation, at 1954 (Kathryn K. Sklar and James Brewer Stewart, eds., Yale University Press, 2007)
Gendered Borders and United States’ Sovereignty, in Women and Immigration Law: New Variations on Classical Feminist Themes, at 44-63 (S.K. Van Walsum and T. Spijkerboer, eds., Routledge-Cavendish Press, 2006)
Contracting Civil Procedure, in Law and Class in America: Trends Since the Cold

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War, at 60-86 (Paul Carrington and Trina Jones, eds., New York University Press, 2006)

Democratic Responses to the Breadth of Power of the Chief Justice, in Reforming the Court: Term Limits for Supreme Court Justices, at 181-200 (Paul D. Carrington and Roger C. Cramton, eds., Carolina Academic Press, 2006)

Composing a Judiciary: Reflections on Proposed Reforms in The United Kingdom on How to Change the Voices of and the Constituencies for Judging, in Constitutional Innovation: The Creating of A Supreme Court for the United Kingdom; Domestic, Comparative and International Reflections, A Special Issue of Legal Studies, at 228-252 (Derek Morgan, ed., LexisNexis, United Kingdom, 2004)

The Story of Goldberg: Why This Case Is Our Shorthand, in Civil Procedures Stories: An In-Depth Look at the Leading Civil Procedure Cases, at 473-508 (Kevin M. Clermont, ed., Foundation Press, 2004; 2nd ed., 2007)

Federalism(s), Feminism, Families, and the Constitution, in Women and the United States Constitution: History, Interpretation, and Practice, at 127-152 (Sybil A. Schwarzenbach and Patricia Smith, eds., Columbia University Press, 2004)

The Rights of Remedies: Collective Accountings for and Insuring Against the Harms of Sexual Harassment in Directions in Sexual Harassment Law, at 247-271 (Reva Siegel and Catherine MacKinnon, eds., University Press, 2004)

Civil Processes, in Oxford Handbook of Legal Studies, at 478-772 (Peter Cane and Mark Tushnet, eds., Oxford Press, 2003)

Women, Meeting (Again), In and Beyond the United States, Afterword to The Difference Difference Makes: Women and Leadership, at 203-216 (Deborah L. Rhode, ed., Stanford University Press, 2003)

Procedure: Legal Aspects (Vol.18), in International Encyclopedia of the Social & Behavioral Sciences, at 12136-12141 (Neil J. Smelser and Paul B. Baltes, eds., Elsevier Press, 2001)

Contested Identities: Task Force on Gender, Race, and Ethnic Bias and the Obligations of the Legal Profession (with Deborah Hensler) in Ethics in Practice, Lawyers’ Roles, Responsibilities, and Regulation, at 240-263 (Deborah L. Rhode, ed., Oxford University Press, 2000)

Federal Judicial Role (Vol. III); Single-Sex Education (Vol. V); Procedural Due Process Civil (Update I, Vol. IV), in The Encyclopedia of the American Constitution, 2nd

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edition, (Leonard Levy, Kenneth L. Karst, Adam Winkler, Dennis J. Mahoney, and John G. West, Jr., eds., Macmillan, 2000)

Singular and Aggregate Voices: Audiences and Authority in Law & Literature and in Law & Feminism, in Law and Literature: Current Legal Issues, Vol. II, at 687727 (Michael Freeman and Andrew D. E. Lewis, eds., Oxford University Press, 1999)

Foreword (with Carolyn Heilbrun) to Beyond Portia: Women, Law & Literature in the United States, at 11-52 (Jacqueline St. Joan and Annette Bennington McElhiney, eds., Northeastern University Press, 1997)

Procedure, in Looking at Law School, at 177-195 (Stephen Gillers, ed., Penguin Books, NY, 4th ed., 1997; 3rd ed., 1990)

From the Senate Judiciary Committee to the County Courthouse: The Relevance of Gender, Race, and Ethnicity to Adjudication, in Race, Gender, and Power in America, The Legacy of the Hill-Thomas Hearings, at 177-227 (Anita Hill and Emma Jordan, eds., Oxford Press, 1995)

Gender in the Courts: The Task Force Reports, in The Woman Advocate, Excelling in the 90’s, at 3-38 (Jean Maclean Snyder and Andra Barmash Greene, eds., Prentice Hall Law & Business, 1995)

Finding the Factfinders, in Verdict: Assessing the Civil Justice System, at 500-530 (Robert E. Litan, ed., Brookings, May 1993)

Independent and Inter-dependent: The Ninth Circuit and the Federal Judiciary, in Restructuring Justice, at 321-330 (Arthur Hellman, ed., Cornell Press, 1990)

The Perception of Justice: Tort Litigants’ Views of Trial, Court-Annexed Arbitration, and Judicial Settlement Conferences (with E. Allan Lind, Robert MacCoun, Patricia Ebener, William L.F. Felstiner, Deborah R. Hensler, and Tom R. Tyler), The RAND Corporation, Institute for Civil Justice (1989)

Should Prisoners Be Classified by Sex?, in Criminal Corrections: Ideals and Realities, at 109-123 (J. Doig, ed., Mass: Lexington Books, Fall 1982)

Discrimination in Education, Chapter XXVIII in Dorsen, Bender, Neuborne, and Law, in Political and Civil Rights in the United States, at 107-173 (Little Brown, 1979, Supplement, 1981)

Prisoners of Their Sex: Health Problems of Incarcerated Women (with Nancy Shaw) in Prisoners’ Rights Sourcebook: Theory, Practice, and Litigation, Vol. II, at 319-

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413 (Ira Robbins, ed., N.Y.: Clark Boardman, 1980, reprinted in 3 Prison Law Monitor 57-58, March 1981)

Federal Prisoners’ Access to Federal Courts: Jurisdiction and Related Procedural Matters, Prisoners Rights, at 85-158 (N.Y.: PLI, 1979)

Undelivered Care: The Incapacitated and the Mentally Ill New York City Defendant, A Report to the Mayor's Criminal Justice Coordinating Council (August 1973) (co-authored)

Articles Constituting Security and Fairness: Reflecting on Charles Reich’s Imagination and
Impact, 129 Yale Law Journal Forum 707 (2020)

Inability to Pay: Court Debt Circa 2020 (with David Marcus), 98 North Carolina Law Review 361 (2020)

(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin,” 129 Yale Law Journal Forum 365 (2020)

Book Review: The Challenges of Engaging “The Art of Law: artistic representations and iconography of law and justice in context, from the middle ages to the first world war,” in 7 Comparative Legal History 239 (2019)

Sentencing Inside Prisons: Efforts to Reduce Isolating Conditions (with Kristen Bell), 87 University of Missouri Kansas City Law Review 133 (2018)

A2J/A2K: Access to Justice, Access to Knowledge, Economic Inequalities, and Open Courts and Arbitrations, 96 North Carolina Law Review 605 (2018)

Reorienting the Process Due: Using Jurisdiction to Forge Post-Settlement Relationships Among Litigants, Courts, and the Public in Class and Other Aggregate Litigation, 92 New York University Law Review 1017 (2017)

“Vital” State Interests: From Representative Actions for Fair Labor Standards to Pooled Trusts, Class Actions, and MDLs in the Federal Courts, 165 University of Pennsylvania Law Review 1765 (2017)

Lawyers’ Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration Mandates, and Privatized Processes, 85 Fordham Law Review 1899 (2017)

Accommodations, Discounts, and Displacement: The Variability of Rights as a Norm of Federalism(s), 17 Jus Politicum 209 (2017)

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“Within Its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proceedings of the American Philosophical Society 117 (2016)

Revising Our “Common Intellectual Heritage”: Federal and State Courts in Our Federal System, 91 Notre Dame Law Review 1831 (2016)

Time-In-Cell: Isolation and Incarceration (with Sarah Baumgartel and Johanna Kalb), 125 Yale Law Journal Forum (2016); http://www.yalelawjournal.org/forum/time-in-cell-isolation-and-incarceration

The Contingency of Openness in Courts: Changing the Experiences and Logics of Publics’ Role in Court-Based ADR, 15 Nevada Law Journal 1631 (2015)

Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale Law Journal 2804 (2015); published in Portuguese in Grandes Temas do Novo CPC: Justiça Multiportas: Mediação, Conciliação, Arbitragem e Outros Meios de Solução Adequada Para Conflitos (DIDIER JR., Fredie; ZANETI JR., Hermes; CABRAL, Tricia Xavier Navarro eds., Salvador: JusPodvim, 2016))

Reinventing Courts as Democratic Institutions, Daedalus: Journal of the American Academy of Arts and Sciences 9 (Summer 2014)

The Privatization of Process: Requiem for and Celebration of the Federal Rules of Civil Procedure at 75, 162 University of Pennsylvania Law Review 1793 (2014)

Inventing Democratic Courts: A New and Iconic Supreme Court (with Dennis E. Curtis), 38 Journal of Supreme Court History 207 (2013)

Gideon at Guantánamo: Democratic and Despotic Detention (with Hope Metcalf), 122 Yale Law Journal 2504 (2013)

Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies (with Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Julia Spiegel, Haran Tae, Alyssa Work, and Brian Holbrook) (2013)

The Democracy in Courts: Jeremy Bentham, ‘Publicity’, and the Privatization of Process in the Twenty-First Century, NoFo 10 (2013)

Globalization(s), privatization(s), constitutionalization and statization: Icons and
experiences of sovereignty in the 21st century, 11 International Journal of Constitutional Law (IꞏCON) 162 (2013)

Equality’s Frontiers: Courts Opening and Closing, 122 Yale Law Journal

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Online 243 (2013)

Opening the Door: Ruth Bader Ginsburg, Law’s Boundaries, and the Gender of Opportunities, 25 Columbia Journal of Gender and Law 81 (2013)

Constitutional Entitlements to and in Courts: Remedial Rights in an Age of Egalitarianism: The Childress Lecture, 56 St. Louis University Law Journal 916 (2012)

Comparative (In) equalities: CEDAW, the jurisdiction of gender, and the heterogeneity
of transnational law production, 10 International Journal of Constitutional Law (IꞏCON) 531 (2012)

Building the Federal Judiciary (Literally and Legally): The Monuments of Chief Justices Taft, Warren, and Rehnquist, 87 Indiana Law Journal 823 (2012)

Re-Presenting Justice: Visual Narratives of Judgment and the Invention of Democratic Courts (with Dennis E. Curtis), 24 Yale Journal of Law and the Humanities 19 (2012)

Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 Harvard Law Review 78 (2011)

The Production and Reproduction of Constitutional Norms, 35 New York University Review of Law & Social Change 226 (2011)

Bring Back Bentham: “Open Courts,” “Terror Trials,” and Public Sphere(s), 5 Law & Ethics of Human Rights 226 (2011)

Compared to What?: ALI Aggregation and the Shifting Contours of Due Process and of Lawyers’ Powers, 79 George Washington Law Review 628 (2011)

Reading Reinhardt: The Work of Constructing Legal Virtue (Exempla Iustitiae), 120 Yale Law Journal 539 (2010)

Kyoto at the Local Level: Federalism and Translocal Organizations of Government Actors (TOGAs) (with Joshua Civin and Joseph Frueh), 40 Environmental Law Reporter 10768 (2010)

Detention, The War on Terror, and the Federal Courts, 110 Columbia Law Review 579 (2010)

The Internationalism of American Federalism: Missouri and Holland (Earl F. Nelson Memorial Lecture), 73 Missouri Law Review 1105 (2009)

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Courts: In and Out of Sight, Site, and Cite, 53 Villanova Law Review 771 (2008)

Interdependent Federal Judiciaries: Puzzling about Why and How to Value the Independence of Which Judges, Daedalus 28 (2008)

Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs) (with Joshua Civin and Joseph Frueh), 50 Arizona Law Review 709 (2008)

Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: “The Political Safeguards” of Aggregate Translocal Actions, 156 University of Pennsylvania Law Review 1929 (2008)

Law as Affiliation: “Foreign” Law, Democratic Federalism, and the Sovereigntism of the Nation-State, 6 International Journal of Constitutional Law (IꞏCON) 33 (2008)

Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism, 57 Emory Law Journal 31 (2007)

Representing Justice: From Renaissance Iconography to Twenty-First Century Courthouses (with Dennis E. Curtis), Henry la Barre Jayne Lecture, 151 Proceedings of the American Philosophical Society 139 (2007)

Roscoe Pound Round-Table Discussion, in Conference of Chief Justices and Council on State Court Administrators Symposium, 82 Indiana Law Journal 1157 (2007)

No Daubert Hearing Necessary: The Extraordinary Expertise of Margaret Berger, 16 Journal of Law and Policy 6 (2007)

Whither and Whether Adjudication?, 86 Boston University Law Review 1101 (2006)

Uncovering, Disclosing, and Discovering How the Public Dimensions of CourtBased Processes Are at Risk, 81 Chicago-Kent Law Review 521 (2006)

Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States (with Lane Dilg), 154 University of Pennsylvania Law Review 1575 (2006)

Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry, 115 Yale Law Journal 1564 (2006)

Living Their Legal Commitments: Paideic Communities, Courts and Robert Cover, 17 Yale Journal of Law & the Humanities 17 (2005)

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Procedure as Contract, 80 Notre Dame Law Review 593 (2005)

Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo Law Review 579 (2005)

Procedure’s Projects, 23 Civil Justice Quarterly 273 (2004)

Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts, 3 Journal of Empirical Legal Studies 783 (2004)

Tribes, Wars, and the Federal Courts: Applying the Myths and the Methods of Marbury v. Madison to Tribal Courts’ Criminal Jurisdiction, 36 Arizona State Law Journal 77 (2004)

The Independence of the Federal Judiciary, in Proceedings of the American Academy of Arts and Sciences, 17 Bulletin 22 (2004)

For Owen M. Fiss: Some Reflections on the Triumph and the Death of Adjudication, 58 University of Miami Law Review 173 (2003)

A Continuous Body: Ongoing Conversations About Women and Legal Education, 53 Journal of Legal Education 564 (2003)

Of Courts, Agencies, and the Court of Federal Claims: Fortunately Outliving One’s Anomalous Character, 71 George Washington Law Review 798 (2003)

Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty (with Julie Suk), 55 Stanford Law Review 1921 (2003)

Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 Indiana Law Journal 223 (2003)

Reconstructing Equality: Of Justice, Justicia, and the Gender of Jurisdiction, 14 Yale Journal of Law and Feminism 393 (2002)

Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement, 2002 University of Missouri-Columbia Journal of Dispute Resolution 155 (2002)

Teaching Billing: Metrics of Value in Law Firms and Law Schools (with Dennis E. Curtis), 54 Stanford Law Review 1409 (2002)

“Uncle Sam Modernizes His Justice”: Inventing the Federal District Courts of the Twentieth Century for the District of Columbia and the Nation, 90 Georgetown Law Journal 607 (2002)

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Remarks, Bicentennial Celebration for the Courts of the District of Columbia Circuit, 204 Federal Rules of Decision 499 (2002)
Grieving Criminal Defense Lawyers (with Dennis E. Curtis), 70 Fordham Law Review 1615 (2002)
Engendering Democracy through Understanding Federal Family Law, 11 The Good Society (A PEGS Journal) 79 (2002)
Tribute to Norman Dorsen, 58 Annual Survey of American Law 29 (2001)
Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 Yale Law Journal 619 (2001)
Procedure: Legal Aspects, 18 International Encyclopedia of the Social & Behavioral Sciences (eds. Neil Smelser and Paul Baltes) 12136 (2001)
The Modernity of Judging: Judicial Independence and the 20th Century United States Federal Courts, presented at The 1701 Conference, Vancouver, British Columbia, Canada, May 9-11, 2001, on the 300th anniversary of the 1701 Act of Settlement
The Programmatic Judiciary: Lobbying, Judging, and Invalidating the Violence Against Women Act, 74 Southern California Law Review 269 (2000)
Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation, 148 University of Pennsylvania Law Review 2119 (2000)
Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harvard Law Review 924 (2000)
Judicial Independence and Article III: Too Little and Too Much, 72 Southern California Law Review 657 (1999)
Legal Services: Then and Now (with Emily Bazelon), 17 Yale Law & Policy Review 292 (1998)
The Federal Courts and Congress: Additional Sources, Alternative Texts, and Altered Aspirations, 86 Georgetown Law Journal 2589 (1998)
“The Federal Courts”: Constituting and Changing the Topic, 32 University of Richmond Law Review 603 (1998)
On the Margin: Humanities and Law, 10 Yale Journal of Law and the

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Humanities 413 (1998)

Contingency Fees in Mass Torts: Access, Risk and the Provision of Legal Services When Layers of Lawyers Work for Individuals and Collectives of Clients (with Dennis E. Curtis), 47 DePaul Law Review 425 (1998)

Changing Practices, Changing Rules: Judicial and Congressional Rulemaking in Civil Juries, Civil Justice, and Civil Judging, in a Symposium, Evaluation of the Civil Justice Reform Act, 49 Alabama Law Review 133 (1997); also published in Canadian Institute for the Administration of Justice, The Administration of Justice in Commercial Disputes 149 (1997)

Litigating and Settling Class Actions: The Prerequisites of Entry and Exit, 30 U.C. Davis Law Review 835 (1997)

Afterword: Federalism’s Options, Symposium Issue: Yale Law & Policy Review/Yale Journal on Regulation 465 (1996)

Changing the Topic, 7 The Australian Feminist Law Journal 95 (1996); also published in 8 Cardozo Studies in Law and Literature 339 (Fall/Winter 1996)

Asking About Gender in Courts, 21 Signs: Journal of Women in Culture and Society 952 (Summer 1996)

Individuals Within the Aggregate: Relationships, Representation, and Fees (with Dennis E. Curtis and Deborah Hensler), 71 New York University Law Review 296 (1996)

History, Jurisdiction, and the Federal Courts: Changing Contexts, Selective Memories, and Limited Imagination, 98 West Virginia Law Review 171 (1995)

Sentencing Women, 8 Federal Sentencing Reporter 134 (1995)

Aggregation, Settlement, and Dismay, 80 Cornell Law Review 918 (1995)

Procedural Innovations, Sloshing Over: A Comment on Deborah Hensler, A Glass Half Full, a Glass Half Empty: The Use of Alternative Dispute Resolution in Mass Personal Injury Litigation, 73 Texas Law Review 1627 (1995)

Multiple Sovereignties: Indian Tribes, States, and the Federal Government, 79 Judicature 118 (1995)

Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication, 10 Ohio State Journal on Dispute Resolution 211 (1995)

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Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA Law Review 1471 (1994); also published by RAND, Institute for Civil Justice (1995).

National Courts: Imagining Alternatives to State and Federal Courts, Southern California Law Review 2 (Spring 1995)

Rereading “The Federal Courts:” Revising the Domain of Federal Courts Jurisprudence at the End of the Twentieth Century, 47 Vanderbilt Law Review 1021 (1994)

The Future of Civil Litigation: A Panel Discussion in Symposium, Reinventing Civil Litigation: Evaluating Proposals for Change, 59 Brooklyn Law Review 1199 (1994)

Ambivalence: The Resiliency of Legal Culture in the United States, 45 Stanford Law Review 1525 (1993)

Gender Bias: From Classes to Courts, 45 Stanford Law Review 2195 (1993)

Revising the Canon: Feminist Help in Teaching Procedure, Introduction to a Symposium, 61 University of Cincinnati Law Review 1181 (1993)

Hearing Women, 65 Southern California Law Review 1333 (1992)

“Naturally” Without Gender: Women, Jurisdiction, and the Federal Courts, 66 New York University Law Review 1682 (1991)

Visible on Women’s Issues, 77 Iowa Law Review 41 (1991)

From “Cases” to “Litigation,” 54 Law and Contemporary Problems 5 (1991); also published by RAND, Institute for Civil Justice (1991)

Housekeeping: The Nature and Allocation of Work in the Federal Trial Courts, 24 Georgia Law Review 909 (1990)

In the Eye of the Beholder: Tort Litigants’ Evaluations of their Experiences in the Civil Justice System (with E. Allan Lind, Robert J. MacCoun, Patricia Ebener, William L.F. Felstiner, Deborah R. Hensler, and Tom R. Tyler), 24 Law & Society Review 953 (1990); related monograph, The Perception of Justice; also published by RAND, Institute for Civil Justice (1989)

Feminism and the Language of Judging, 22 Arizona State Law Journal 31 (1990)

Changing Criteria for Judging Judges, 84 Northwestern University Law Review 889 (1990)

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Convergences: Law, Literature, and Feminism (with Carolyn Heilbrun), 99 Yale Law Journal 1913 (1990)
Constructing the Canon, 2 Yale Journal of Law and the Humanities 221 (Winter 1990)
Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 University of Chicago Law Review 671 (1989)
Complex Feminist Conversations, University of Chicago Legal Forum 1 (1989)
The Domain of Courts, 137 University of Pennsylvania Law Review 2219 (1989)
On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 Southern California Law Review 1877 (1988)
The Limits of Parity in Prison, 13 Journal of the National Prison Project 26 (1987)
Due Process: A Public Dimension, in Conference on Procedural Due Process: Liberty and Justice, 39 University of Florida Law Review 405 (1987)
Judging Consent, University of Chicago Legal Forum 43 (1987)
Images of Justice (with Dennis E. Curtis), 96 Yale Law Journal 1727 (1987)
Failing Faith: Adjudicatory Procedure in Decline, 53 University of Chicago Law Review 494 (1986); also published by RAND, Institute for Civil Justice (1986)
The Declining Faith in the Adversary System, 13 Litigation 3 (1986)
The Mythic Meaning of Article III Courts, 56 University of Colorado Law Review 581 (1985)
Precluding Appeals, 70 Cornell Law Review 603 (1985)
Managerial Judges: The Potential Costs, in Symposium, Law and Public Affairs, 45 Public Administration Review 686 (Special Issue, November 1985)
Tiers, 57 Southern California Law Review 837 (1984)
Commentaries on Prisoner Litigation, 9 Justice System Journal 347 (Winter 1984)
The Assumptions Remain, 23 Judges’ Journal 37 (Fall 1984)

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Managerial Judges and Court Delay: The Unproven Assumptions, 23 Judges’ Journal 8 (Winter 1984)

Book Review of The Brandeis/Frankfurter Connection, 71 California Law Review 776 (1983)

Managerial Judges, 96 Harvard Law Review 374 (1982); also published by RAND, Institute for Civil Justice (1982)

Patients’ Rights: Disclosure, Consent, and Capacity (with Nikki Heidepriem), 1973/1974 Annual Survey of American Law 87

Selected Commentary in Newspapers, Magazines, and Journals Protecting Prisoners in Pandemics Is a Constitutional Must, Bloomberg.com, March 30, 2020, https://news.bloomberglaw.com/health-law-and-business/insightprotecting-prisoners-in-pandemics-is-a-constitutional-must

Degrading strip search of 200 women prisoners cries out for courts to act, CNN.com, October 3, 2019, https://www.cnn.com/2019/10/03/opinions/women-prisonershave-rights-resnik/index.html

This Question Changed the Face of the Supreme Court, CNN.com, September 25, 2018; http://www.cnn.com/2018/09/25/opinions/anita-hill-patsy-mink-changed-howwe-see-kavanaugh-judith-resnik/index.html

The Supreme Court’s Arbitration Ruling Undercuts the Court System, HuffPost, May 25, 2018; https://www.huffingtonpost.com/entry/opinion-resnik-forcedarbitration_us_5b08395ae4b0802d69caeb47?1s

To Help #MeToo Stick, End Mandatory Arbitration, HuffPost, January 23, 2018; https://www.huffingtonpost.com/entry/opinion-resnik-mandatoryarbitration_us_5a65fc39e4b0e5630071c15d?g9r

Arbitration Cuts the Public Out and Limits Redress, National Law Journal, August 22, 2016; http://www.nationallawjournal.com/id=1202765654457/ Arbitration-Cuts-the-Public-Out-and-Limits-Redress?slreturn=20160914112502

With One Decision, Obama and Lynch Could Reshape the Criminal Justice System (with Robert Ferguson and Margo Schlanger), The Washington Post online, August 3, 2015; https://www.washingtonpost.com/posteverything/wp/2015/08/03/with-onedecision-obama-could-totally-reform-the-criminal-justice-system/

No Fast Track for Unfair Trade Deals (with Amy Kapczynski), HuffPost Politics, June 11, 2015; http://www.huffingtonpost.com/amy-kapczynski/tpp-isds-no-fast-trackfor-unfair-trade-deals_b_7562084.html?1434041001

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Can Less Confidentiality Mean More Fairness in Campus Sexual Assault Cases? (with Alexandra Brodsky and Claire Simonich), The Nation, February 23, 2015; http://www.thenation.com/article/198713/can-less-confidentiality-mean-morefairness-campus-sexual-assault-investigations
Renting Judges for Secret Rulings, The New York Times, February 28, 2014; http://www.nytimes.com/2014/03/01/opinion/renting-judges-for-secretrulings.html?ref=todayspaper
The Return of the Terrible Plan to Ship Female Inmates from the Northeast to Alabama, Slate, October 4, 2013; http://www.slate.com/blogs/xx_factor/2013/10/04/female_inmates_in_federal_pri son_must_give_up_their_beds_to_men_and_move.html
Keep Female Prisoners Close to Family (with Nancy Gertner), The Boston Globe, September 3, 2013; http://www.bostonglobe.com/opinion/2013/09/03/keepfemale-prisoners-close-family/eQf4dCawmOGmQ41Ap53GxL/story.html
Harder Time: Why are the federal prison beds for women in the Northeast going to men—while the women get shipped to Alabama?, Slate, July 25, 2013; http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/women_i n_federal_prison_are_being_shipped_from_danbury_to_aliceville.html
How “Robust” is Appellate Review of Courts-Martial? (with Eugene R. Fidell, Elizabeth L. Hillman, Dwight H. Sullivan, Stephen A. Saltzburg and Kate Stith) (2013), Balkinization; http://balkin.blogspot.com/2013/05/how-robust-is-appellatereview-of.html
Abolish the Death Penalty and Supermax, Too: Updating the Ban Against Cruel and Unusual Punishment (with Jonathan Curtis-Resnik), Slate, June 18, 2012; http://www.slate.com/authors.judith_resnik_and_jonathan_curtisresnik.html
War, Terror, and the Federal Courts, Ten Years After 9/11 – Conference (a discussion with Judge Brett Kavanaugh, Martin Lederman, Sarah Cleveland, Curt Bradley, and Stephen Vladeck), from the 2012 Annual Meeting of the Association of American Law Schools, 61 American University Law Review 1253 (2012)
A Collective Collage: Women, the Structure of American Legal Education, and Histories Yet to be Written (with Dennis E. Curtis), 80 University of Missouri Kansas City Law Review 737 (2012)
The Changing Face of Justice: The Visual Vocabulary of Courts is a Transnational Symbol of Government (with Dennis E. Curtis), The Guardian, March 24, 2011; http://www.guardian.co.uk/law/2011/mar/24/changing-face-justice-judith-resnik

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Designing Justice (with Dennis E. Curtis), Los Angeles Daily Journal, January 21, 2011. What Does Justice Look Like? (with Dennis E. Curtis), Slate, January 21, 2011; http://www.slate.com/id/2281277/
From Fool’s Blindfold to the Veil of Ignorance (with Dennis E. Curtis), Yale Law Report (Winter 2011)
Object Lesson: On and Off Her Pedestal (with Dennis E. Curtis), Yale Alumni Magazine (November/December 2010)
Citizenship for the 21st Century: A Conversation with Seyla Benhabib and Judith Resnik, 38 Women Studies Quarterly 271 (Spring/Summer 2010)
Drafting, Lobbying, and Litigating VAWA: National, Local, and Transnational Interventions on Behalf of Women’s Equality, 11 Georgetown Journal of Gender and the Law 557 (2010)
Open the Door and Turn on the Lights, Slate, May 21, 2010; http://www.slate.com/id/2253500/
Judicial Independence, Panel Discussion, Sandra Day O’Connor, Linda Greenhouse, Judith Resnik, Bert Brandenburg, and Viet D. Dinh, Bulletin of the American Academy 29 – 56 (Winter 2009)
There’s a New Lawyer in Town (with Emily Bazelon), Slate, February 9, 2009; http://www.slate.com/id/2210637/
Revival of Justice, Slate, January 6, 2009; http://www.slate.com/id/2208017/
Translocal Transnationalism: Foreign and Domestic Affairs, 102 American Society of International Law Proceedings 214 (2008)
Sitting on Great Judges (with Emily Bazelon), Slate, December 19, 2008; http://www.slate.com/id/2207071/
The Return of Regency (with Allison Tait), The XX Factor, September 11, 2008, guest post; http://www.slate.com/blogs/blogs/xxfactor/archive/2008/09/11/the-returnof-regency.aspx
Courts and Democracy: The Production and Reproduction of Constitutional Conflict in The Courts and Social Policy in the United States (Oxford: Foundation for Law, Justice and Society, 2008); http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1148202

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Moving American Mores: From Women’s Education to Torture, 36 Women Studies Quarterly 339 (Spring/Summer 2008)

When the Justice Department Played Defense, Slate, October 27, 2006; http://www.slate.com/id/2152211/

Borders, Law, and Doors – Opening, Bryn Maw College Convocation, May 2006

Opening the Door: Court Stripping: Unconscionable and Unconstitutional? Slate, February 1, 2006; http://www.slate.com/articles/news_and_politics/jurisprudence/2006/02/opening_ the_door.html

So Long: Changing the Judicial Pension System Could Keep Judges from Staying on the Bench for Too Many Years, July/August Legal Affairs 20 (2005)

One Robe, Two Hats (with Theodore Ruger), New York Times, Op-Ed, Section 4 at 13, July 17, 2005

Looking Back, Looking Forward: One Hundred Years, Concluding Remarks in Women Faculty Forum, Gender Matters: Women and Yale in its Third Century (2004)

The Courts, the Legislature, and the Executive: Separate and Equal? Issues at the Federal Level, 87 Judicature 220 (2004)

Judicial Selection, Independent Jurists, and Life-Tenure (2004); http://www.jurist.org/forum/symposium-jc/resnik.php

At Home and Work, Still a Man’s World, Commentary (with Emily Bazelon), Los Angeles Times, January 2, 2004

Engendering Equality: A View from the United States, 35 The European Lawyer 21, (February 2004)

Supermajority Rule, New York Times, Op-Ed, Section A at 31, June 11, 2003

Testimony Statement submitted for the record, Women in Prison: Seeking Justice Behind Bars, before the U.S. Commission on Civil Rights, March 22, 2019, U.S. Commission on Civil Rights, Women in Prison: Seeking Justice Behind Bars (February 2020), available at https://www.usccr.gov/pubs/2020/02-26-Women-inPrison.pdf

Comments submitted on Proposed Changes to Code of Conduct for U.S. Judges and Judicial Conduct and Disability Rules (with Abbe R. Gluck), submitted to the

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Judicial Conference committees on Codes of Conduct and Judicial Conduct and Disability, November 13, 2018

Comments submitted for the Telephonic Hearing on Proposed Amendments to the Federal Rules of Civil Procedure before the Advisory Committee on Civil Rule of the Judicial Conference of the United States, February 16, 2017

Statement submitted for the record, Women in Detention: The Need for National Reform, Charles Colson Task Force on Federal Corrections Public Hearing, Washington, D.C., March 11, 2015

Statement submitted for the record, Women in Detention: The Need for a National Agenda, Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights, December 9, 2014

The Policies Governing Isolation in U.S. Prisons, Statement submitted for the Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, Reassessing Solitary Confinement II: The Human Rights, Fiscal and Public Safety Consequences, February 25, 2014; http://www.law.yale.edu/documents/pdf/Liman/Liman_Senate_Statement_Reasse ssing_Solitary_Confinement--_Resnik_Metcalf_--_final_Feb_28_2014.pdf

Statement submitted for the record, Oversight of the Bureau of Prisons and CostEffective Strategies for Reducing Recidivism, Hearing before the Senate Judiciary Committee, U.S. Senate, November 13, 2013; http://www.law.yale.edu/documents/pdf/Liman/Senate_Judiciary_Committee_BO P_Oversight_Hearing_Liman_Statement_for_the_Record_

Statement submitted for the record, Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences, Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights, U.S. Senate, June 19, 2012

Courtroom Use: Access to Justice, Effective Judicial Administration and Courtroom Security, Hearing before the Subcommittee on Courts and Competition Policy of the United States Committee on the Judiciary, U.S. House of Representatives, September 24, 2010

Statement submitted for the record, Recommendations on Courthouse Construction, Courtroom Sharing and Enforcing Congressionally Authorized Limits on Size and Cost, Hearing before the Subcommittee on Economic Development, Public Buildings and Emergency Management Committee on Transportation and Infrastructure, U.S. House of Representatives, May 21, 2010

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Statement submitted for the record, Sunshine in Litigation Act: Does Court Secrecy Undermine Public Health and Safety, Hearing before the Subcommittee on Antitrust, Competition Policy and Consumer Rights of the Committee on the Judiciary, 110th Cong. 181, December 11, 2007

Hearings on the Judicial Nomination of John G. Roberts, Jr., to be Chief Justice of the United States, held by the Committee on the Judiciary of the United States Senate, Washington, D.C., September 15, 2005

Hearings on the Judicial Selection before the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, held by the House of Commons, Ottawa, Canada, April 20, 2004

Hearings on the Proposed Amendments to Federal Rule of Civil Procedure 23, held by the Committee on Rules of Practice and Procedure, Judicial Conference of the United States, January 2002

Hearings on the Senate's Role in the Nomination and Confirmation Process: Whose Burden?, held by the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts, 107th Cong. , September 4, 2001, also published in 50 Drake Law Review 539 (2001-02)

Hearings on the Proposed Amendment to Federal Rule of Civil Procedure 23, held by the Committee on the Rules of Practice and Procedure, Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, November 1996

Hearings on the Proposed Long Range Plan of the Judicial Conference of the United States, held by the Committee on Long Range Planning, December 16, 1994

Hearings on the Proposed Changes in the Federal Rules of Civil Procedure, held by the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference, November 1991

Hearings on the Tentative Report of the Federal Courts Study Committee, held by members of the Committee, San Diego, California, January 29, 1990

Hearings on the Proposed Amendments to Rule 63 of the Federal Rules of Civil Procedure, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, January 1990

Hearings on the Confirmation of Robert H. Bork to be an Associate Justice of the United States Supreme Court, held by the Committee on the Judiciary, United States Senate, September 25, 1987

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Hearings on Proposed Amendments to Rule 52(a) of the Federal Rules of Civil Procedure, held by the Subcommittee on Criminal Justice of the Judiciary Committee of the U.S. House of Representatives, June 26, 1985
Hearings on Proposed Amendments to Rule 68 of the Federal Rules of Civil Procedure, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, 1985
Hearings on Proposals to Amend the Rules Governing Section 2254 Cases in the United States District Courts, and Rules Governing Section 2255 Proceedings in the United States District Courts, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, 1984
Female Offender: 1979-80, Part 1: Hearings before the Subcommittee on Courts, Civil Liberties, and Administration of Justice of the House Committee. on Judiciary, 96th Cong. 59, October 11, 1979
Drug Abuse Treatment: Part 2: Hearings before the Select Committee on Narcotics Abuse and Control, House of Representatives, 96th Cong., July 25, 1978

Honors and Awards Andrew Carnegie Fellowship, 2018-2020
Honorary Doctorate of Laws, University College London, 2018
Visiting Scholar, Max Planck Institute for Procedural Law, Luxembourg, February 2018
Establishment of the Resnik-Curtis Fellowship in Public Interest Law on the 20th anniversary of the Liman Program at Yale, 2017
Visiting Scholar, Phi Beta Kappa, 2014-2016
Recipient, Arabella Babb Mansfield Award, National Association of Women Lawyers, July 2013
Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (with Dennis E. Curtis) Selected as one of the “Best legal reads of 2011” by The Guardian Recipient, SCRIBES Award from the American Society of Legal Writers, 2012 Recipient, PROSE Award, Excellence in Social Sciences, 2012 PROSE Award, Excellence in Law & Legal Studies, 2012

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Selected as an Outstanding Academic Title of the Year by Choice Magazine, January 2012
Recipient, The Order of the Coif Biennial Book Award, January 2014

New York University Alumna of the Month Award, June 2012, http://www.law.nyu.edu/alumni/almo/pastalmos/2011-12almos/judithresnikjune

Elizabeth Hurlock Beckman Award, Awarded to Outstanding Faculty in Higher Education in the Fields of Psychology or Law, Columbia University, March 2011

Migrations and Mobilities: Citizenship, Borders, and Gender, Selected as an Outstanding Academic Title of the Year by Choice Magazine, January 2011

Outstanding Scholar of the Year Award 2008, from the Fellows of the American Bar Foundation

Oral History, 2007, Women Trailblazers in the Law Project, American Bar Association Commission on Women in the Profession, deposited in the Library of Congress, 2009

Convocation Speaker, Bryn Mawr College Commencement, May 2006

Member, American Philosophical Society, elected Spring 2002

Fellow, American Academy of Arts and Sciences, elected Spring 2001

Recipient, Margaret Brent Women Lawyers of Achievement Award, American Bar Association Commission on Women in the Profession, August 1998

Recipient, NYU School of Law, Legal Teaching Award, Spring 1995

Recipient, USC Associates Award for Creativity in Research, Spring 1994

Recipient, Florence K. Murray Award, National Association of Women Judges, Fall 1993

Recipient, “Big Splash Award” from the Program of Women and Men in Society (SWMS), University of Southern California, 1992

Member, Phi Kappa Phi, elected by the USC Chapter, 1991

University Scholar, University of Southern California, 1982-1983

Recipient, Student Bar Association Outstanding Faculty Award, University of Southern California Law Center, 1982-1983

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Arthur Garfield Hays Fellow, 1974-1975, New York University

Education Bryn Mawr College, B.A., cum laude, 1972 New York University School of Law, J.D., cum laude, 1975

Bar Memberships Connecticut United States District Courts: District of Connecticut, Southern District of New York, Eastern District of New York United States Court of Appeals for the First, Second, Third, Fourth, Ninth and Eleventh Circuits United States Supreme Court

Selected Litigation United States Supreme Court Of counsel on Brief of Amici Curiae, Law Professors in Support of Petitioners (No. 18622), on Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit, Whole Woman’s Health, et. al. v. Texas Catholic Conference of Bishops (2018) (on the question of standing)

Of counsel on Brief of Amici Curiae, Former Judges, Former Prosecutors, Former Government Officials, Law Professors, and Social Scientists in Support of Respondents (No. 17-312), United States of America v. Sanchez-Gomez 138 S.Ct. 1532 (2018) (on the use of shackles for defendants in federal court)

Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Respondents (Nos. 161436 and 16-1540), Donald J. Trump, et al. v. International Refugee Assistance Project, et al, Donald J. Trump, et al. v. State of Hawaii, et al. (2017), 138 S.Ct. 2392 (2018) (on travel bans)

Of counsel on Brief of Amici Curiae, Constitutional Law, Federal Courts, Citizenship, and Remedies Scholars in Support of Respondent Luis Ramon Morales-Santana (No. 15-1191), Lynch v. Morales-Santana, 136 S.Ct. 2545 (2016) (on citizenship and gender)

Oral Argument and brief presented on behalf of the Respondent Norman Carpenter in Mohawk Industries, Inc. v. Carpenter (No. 08-678, 2009 WL 3169419) (argued October 5), 558 U.S. 100 (2009) (on appealability)

Of counsel on Brief of Law Professors as Amici Curiae, in Support of Respondent Jacob Denedo (No. 08-267, 2009 WL 418793), United States v. Denedo, 556 U.S. 904 (2009) (on jurisdiction)

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Of counsel on Brief of Amici Curiae Professors of Constitutional Law and of Federal Jurisdiction, in Support of Petitioner Keith Haywood (No. 07-10374), Haywood v. Drown, 556 U.S. 729 (2009) (on state law and Section 1983)

Of counsel on Brief of Amici Curiae Professors of Constitutional Law and of the Federal Courts, in Support of the Habeas Petitioners Omar and Munaf (Nos. 07394, 06-1666), Munaf v. Geren, 553 U.S. 674 (2008) (on the scope of habeas corpus)

Of counsel on Brief of Professors of Constitutional Law and of the Federal Jurisdiction as Amici Curiae, in Support of Petitioners Boumediene et al. (Nos. 06-394, 06-1196), Boumediene v. Bush, 553 U.S. 723 (2008) (on the scope of habeas corpus)

Brief of Amici Curiae Norman Dorsen, Frank Michelman, Burt Neuborne, Judith Resnik, and David Shapiro, in Support of Petitioner Salim Ahmed Hamdan (No. 05-184), Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (on due process)

Brief of Amici Curiae of Law Professors in Support of Petitioner Paula Jones (No. 951853, 1996 WL48092), Clinton v. Jones, 520 U.S. 681 (1997) (on immunity)

Oral Argument presented on behalf of the Rotary Club of Duarte: Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) (on California public accommodations law and associational rights under the First Amendment)

United States Courts of Appeals Brief of Amici Curiae, Scholars of the Law of Prisons, the Constitution, and the Federal Courts in Support of the Appellants (No. 16-4234), Delores Henry, et al., v. Melody Hulett, et al. (7th Cir, rehearing en banc pending, 2020) (on constitutional rights in prison)

Brief of Amici Curiae of Constitutional Law and Procedure Scholars Judith Resnik and Brian Soucek in Support of Petitioner (No. 16-73801), submitted for the hearing en banc, C.J.L.G. v. Jefferson B. Sessions III (9th Cir., , 880 F.3d 1122 (2019) (on due process, right to counsel, and immigrant children)

Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Plaintiffs-Appellees, (No. 17-17168), Ninth Circuit, State of Hawaii, et al., v. Donald Trump (2017) (on travel bans)

Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Plaintiffs-Appellees, (No.

Resnik, Judith resume tevised 2 April 24, 2020

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17-2231 (L), 17-2232, 17-2233, 17-2240 (Consolidated)), Fourth Circuit, International Refugee Assistance Project, et al., Iranian Alliances Across Borders, et al., Eblal Zakzok, et al., v. Donald Trump (2017) (on travel bans)

Of counsel on Brief of Amici Curiae, Constitutional Law Professors in Support of
Appellees and Affirmance (No. 17-1351), International Refugee Assistance Project et al. v. Donald J. Trump, et. al. (4th Cir. 2017) (on travel bans)

Appellate Counsel In re San Juan Dupont Plaza Hotel Fire Litigation, 111 F.3d 220 (1st Cir. 1997)
(on awards of fees and costs in a mass tort multi-district litigation)

In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 56 F.3d 295 (1st Cir.1995)

In re Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 982 F.2d 603 (1st Cir. 1992)

United States District Court Declaration Regarding Provisional Remedies for Detained Individuals, Money v. Jeffries
(N.D. Ill., Eastern Division, No. 20 cv 2-14, filed April 8, 2020

Of Counsel on Motion for Leave to File Declaration of Correctional Expert Rick Raemisch as Amicus Curiae, Savino et al. v. Hodgson et al. (D. Mass., No. 1:20cv-10617-WGY, granted March 31, 2020) (to provide the court and parties with expert information)

Of Counsel on Unopposed Motion for Leave to File Amicus Curiae Statement of Correctional Expert Rick Raemisch, Coleman v. Newson (E.D. Cal, No. 2:90-CV00520-KJM-DB 2020), Plata v. Newsom (No. C01-1351 JST, N.D. Cal., granted April 2, 2020) (to provide the court and parties with expert information)

Court-appointed trustee in re: MDL-926 Global Breast Implant Settlement, 173 F.Supp.2d 1381 (Judicial Panel on Multidistrict Litigation, N.D. Alabama, N.D. Texas, 1994) (overseeing the court-created “common benefit fund”)

Expert appointed by the district court to assist the Special Master in McLendon v. Continental Group, Inc., 802 F.Supp. 1216 (D.N.J. 1992) (assisting the court in relationship to a settlement in an ERISA class action)

Exhibits, Co-Curator The Remarkable Run of a Political Icon: Justice as a Sign of the Law. Rare Book Exhibition Gallery, Lillian Goldman Law Library, Yale Law School, September– December 2011 (with Dennis E. Curtis, Allison Tait & Michael Widener); http://library.law.yale.edu/justice-sign-law-exhibit

Resnik, Judith resume tevised 2 April 24, 2020

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Courts: Representing and Contesting Ideologies of the Public Sphere. Yale Art Gallery, Study Galleries, January – May 2011 (with Dennis E. Curtis)
Selected Media Interview, Women, Judging, Equality, and Constitutional Law, RAI Storia (Italian television) – La Corte Costituzionale e le Donne, Pt. 6, January 2020, https://vimeo.com/377835690
Interview, WNPR – Connecticut Public Radio’s Where We Live, presented by John Dankosky, August 5, 2013; http://wnpr.org/post/connecticuts-criminal-justicesystem
Interview, BBC Radio 4’s Law in Action, presented by Joshua Rozenberg, March 12, 2013; http://www.bbc.co.uk/programmes/b01r5ln5
Cameo in Fair Game, directed by Doug Liman, Fall 2010, and panel moderator, discussion of the film with Valerie Plame, Joseph Wilson, Emily Bazelon and Doug Liman, Paris Theatre, New York City, October 5, 2010

Resnik, Judith resume tevised 2 April 24, 2020

16731

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 172 of 224 Page ID #:684
EXHIBIT O
172

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EXHIBIT 10
16743

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1

DECLARATION OF JIMMY THREATT

2

I, Jimmy Threatt, declare as follows:

3

1. I am an active member of the Bar of the State of California and an

4 associate with Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow,

5 a professional corporation, attorneys of record for Petitioners in this action. Except

6 for those matters stated on information and belief, I make this declaration based

7 upon personal knowledge and, if called upon to do so, I could and would so testify.

8

2. I have attempted to arrange legal calls with eight prisoners incarcerated

9 at FCI Lompoc and USP Lompoc who had been identified to my firm by their

10 family members and friends as seeking our representation in this action. I have not

11 spoken with any of them. Although several calls were initially scheduled, they were

12 each abruptly cancelled by the Bureau of Prisons (“BOP”). As of now, there are no

13 legal calls scheduled with any of the eight prisoners. Attached as Exhibit A is

14 a compilation of true and correct copies of my email correspondence with BOP

15 employees.

16

3. On May 12, 2020, I called the main desks of FCI Lompoc and USP

17 Lompoc to schedule legal calls with prisoners. No one answered and I was not

18 granted opportunities to leave voice messages.

19

4. On May 12, 2020, I emailed the publicly listed address for FCI

20 Lompoc and USP Lompoc to schedule legal calls with the following four prisoners:

21 (1) Lonnie Ben, No. 69141-051; (2) Yonnedil Carror Torres, No. 41928-69;

22 (3) Andre Brown, No. 54460-097; and (4) Kanagasabai Kanakeswaran, No.

23 75139-112. That same day I received responses asking about the urgency of each

24 call. I immediately responded that each call was urgent, I would abide by any time

25 limits, and I could make myself available at any time for the calls in question.

26

5. The next day, May 13, I received email responses indicating that due to

27 “lack of information regarding the urgency” of my request to speak with each

28 prisoner, the matters were being referred to the BOP Legal Department.

3649734.2

DECLARA1T67I54ON OF JIMMY THREATT

CCaassee22:2:200-c-cvv-0-044445500-C-CBBMM-P-PVVCC DDooccuummeennt t1186-1 FFileiledd0066/0/011/2/200 PPaaggee116765oof f128294 PPaaggeeIDID #:369817

1 I immediately responded to indicate that, while I would not divulge privileged

2 information, the calls concerned release options in light of the COVID-19 crisis.

3 That same day, I also submitted requests for legal calls with prisoners (1) Vincent

4 Reed, No. 27173-016, and (2) Vazgen Terpogosyan, No. 77271-112.

5

6. Later on May 13, I received a call from Jennifer Merkle, an attorney

6 with the BOP Legal Department, informing me that a call had been approved with

7 Lonnie Ben.

8

7. At 12:18 A.M. on May 14, I emailed the address for Lompoc to request

9 a legal call with Felix Samuel Garcia, No 46693-298. I have not received

10 a response.

11

8. At 12:21 A.M. on May 14, I emailed the address for Lompoc to request

12 a legal call with Shawn Fears, No 34183-060. I have not received a response.

13

9. Later on May 14, I received email responses indicating that requests for

14 calls with the following prisoners had been approved: (1) Lonnie Ben, (2) Yonnedil

15 Carror Torres, (3) Andre Brown, (4) Kanagasabai Kanakeswaran, (5) Vincent Reed,

16 and (6) Vazgen Terpogosyan. I have not heard anything regarding prisoners Brown

17 or Reed since.

18

10. Shortly thereafter, I received an additional email scheduling a legal call

19 with Yonnedil Carror Torres for 9:00 A.M. on May 19. As to my other outstanding

20 requests for legal calls, the officer could not “tell me when they [the prisoners] will

21 be afforded the legal call.” Later that afternoon, the officer cancelled the call with

22 Torres that had been scheduled just hours earlier: “Per our legal department, I am

23 going to cancel the scheduled legal call [with] the above client [Torres].”

24

11. Also on May 14, an officer called to schedule my call with prisoner

25 Lonnie Ben for 1:00 P.M. later that same day. When I called FCI Lompoc at

26 1:00 P.M., I was told that the call had been cancelled and that it would be

27 rescheduled but was not given any other details.

28

12. I received another call on May 14 scheduling calls for the following

3649734.2

2 DECLARA1T67I65ON OF JIMMY THREATT

CCaassee22:2:200-c-cvv-0-044445500-C-CBBMM-P-PVVCC DDooccuummeennt t1186-1 FFileiledd0066/0/011/2/200 PPaaggee116776oof f128294 PPaaggeeIDID #:369828

1 morning, May 15, with prisoners (1) Kanagasabai Kanakeswaran and (2) Vazgen

2 Terpogosyan. But shortly later, the same officer called to cancel both because

3 “something came up.”

4

13. At 1:04 P.M. on May 14, I received an email from Jennifer Merkle, an

5 attorney with BOP, informing me that she had been referred thirteen of my requests

6 to speak with prisoners, which would include all of my requests to speak with

7 prisoners at FCI Lompoc, USP Lompoc, and FCI Terminal Island. She stated she

8 would need to assess every request individually and would be in touch as to each

9 separately.

10

14. As I was finalizing this declaration on May 15, I received a second

11 email from Ms. Merkle, asking me to call her so that she and I could “identify [my]

12 specific needs.”

13

I declare under penalty of perjury under the laws of the United States of

14 America that the foregoing is true and correct, and that I executed this declaration

15 on May 15, 2020, at Los Angeles, California.

16

17 Jimmy Threatt
18

19

20

21

22

23

24

25

26

27

28

3649734.2

3 DECLARA1T67I76ON OF JIMMY THREATT

CCaassee22:2:200-c-cvv-0-044445500-C-CBBMM-P-PVVCC DDooccuummeennt t1186-1 FFileiledd0066/0/011/2/200 PPaaggee116787oof f128294 PPaaggeeIDID #:369839
EXHIBIT A
16787

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Karen M. Minutelli

From: Sent: To: Cc: Subject:

Jimmy Threatt Tuesday, May 12, 2020 12:16 PM LOX/ExecAssistant@bop.gov Christopher J. Lee; Naeun Rim Legal Call with Inmate at FCI Lompoc

Importance:

High

My firm is counsel for Lonnie Ben (Inmate No. 69141-051). We are trying to schedule a call to discuss an urgent legal matter with him. We called the facility this morning, but no one is answering the phone.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1
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Karen M. Minutelli

From: Sent: To: Cc: Subject:

Jimmy Threatt Thursday, May 14, 2020 12:19 AM LOX/ExecAssistant@bop.gov Christopher J. Lee; Naeun Rim Legal Call with Inmate at USP Lompoc

I am writing to schedule a legal call with Felix Samuel Garcia (Inmate No. 46693-298). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1
1709

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Karen M. Minutelli

From: Sent: To: Cc: Subject:

Jimmy Threatt Thursday, May 14, 2020 12:21 AM 'LOX/ExecAssistant@bop.gov' Christopher J. Lee; Naeun Rim Legal Call with Inmate at USP Lompoc

I am writing to schedule a legal call with Shawn Fears (Inmate No. 34183-060). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1
17810

CCaassee22:2:200-c-cvv-0-044445500-C-CBBMM-P-PVVCC DDooccuummeennt t1186-1 FFileiledd0066/0/011/2/200 PPaaggee117821oof f128294 PPaaggeeIDID #:36973

Karen M. Minutelli

From: Sent: To: Subject:

LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Thursday, May 14, 2020 7:58 AM Jimmy Threatt RE: Request Legal Call with BEN #69141-051 (LOF)

After speaking with our BOP Attorney, a 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales

>>> On 5/13/2020 at 1:30 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Wednesday, May 13, 2020 12:57 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Subject: RE: Request Legal Call with BEN #69141‐051 (LOF)
Due to lack of information regarding the urgency of your request, your request is being sent to the BOP Legal Office for further review and approval. Please be advised this may delay your request for a Legal Call.
>>> On 5/12/2020 at 2:15 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
Thank you, Ms. Morales. To respond to your questions:
1
17821

CCaassee22:2:200-c-cvv-0-044445500-C-CBBMM-P-PVVCC DDooccuummeennt t1186-1 FFileiledd0066/0/011/2/200 PPaaggee117832oof f128294 PPaaggeeIDID #:36984
1) The matter is urgent and we need to speak with Lonnie Ben as soon as possible. It cannot wait until the facility comes off the enhanced mitigation measures.
2) We do have wide windows of availability; we can make any time work. 3) We understand and will respect the 15 minute time limit.
As a reminder, I can be reached at 650-384-5319, and my colleagues can also be reached on their cell phones (Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707).
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Tuesday, May 12, 2020 1:42 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Cc: Christopher J. Lee <clee@birdmarella.com>; Naeun Rim <nrim@birdmarella.com> Subject: Re: Request Legal Call with BEN #69141‐051 (LOF)
Good Morning,
I have been asked to evaluate your request for a legal call with the above-referenced inmate/your client.
Inmate legal calls usually go through the Unit Team, but our COVID-19 situation has prompted enhanced mitigation measures which has staff focusing on inmate management and enhanced sanitation. In short, FCC Lompoc is not under normal operation, and with matters like these, we want to facilitate legal access while balancing public health safety issues.
As FCC Lompoc is currently in the midst of enhanced mitigation measures to address our COVID-19 situation, such as restricting inmate movement, I need to weigh the necessity of the request/call against the goals of our current measures. Also, inmates at FCC Lompoc currently have access to TRULINCS (Email) and phone calls. The inmate can place you on his phone list and email account. Additionally, they receive legal mail daily.
2
17832

CCaassee22:2:200-c-cvv-0-044445500-C-CBBMM-P-PVVCC DDooccuummeennt t1186-1 FFileiledd0066/0/011/2/200 PPaaggee117843oof f128294 PPaaggeeIDID #:36995
We provide an occasional inmate attorney call when the inmate demonstrates that communication with attorneys by correspondence, visiting, or normal telephone use is not adequate, and when the inmate or inmate's attorney can demonstrate an imminent court deadline. Thus, we'd like to ask you the following questions:
1. Urgency - can this call wait until we can come off of our enhanced mitigation measures? Is there an imminent court deadline? Are communication by other means not adequate? While I am likely to defer to a fellow officer of the court's representation of urgency, I need to ask as FCC Lompoc staff are currently focused on active inmate management and enhanced sanitation, and minimizing movement and maintaining maximum separation is critical during this time;
2. Assuming urgency, do you have wide windows of date and time when you are willing to receive a call? For example, Wed - Friday from 812 noon? As arranging a call during this time will require moving an inmate from a quarantined or isolation area/cell to a staff office with a phone, there is much coordination that needs to happen to ensure the safety of all concerned. Thus, staff need maximum flexibility on when they can actually make the call;
3. Can the call be of limited duration, like 15 minutes? As there are other urgent calls that need to be accommodated, keeping the calls short is important to facilitating those are deemed necessary. Keep in mind there is extensive disinfecting that needs to happen of the office and phone after each is made.
Thank you for your patience and understanding during this challenging time.
Ms. Morales
>>> On 5/12/2020 at 12:16 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
My firm is counsel for Lonnie Ben (Inmate No. 69141-051). We are trying to schedule a call to discuss an urgent legal matter with him. We called the facility this morning, but no one is answering the phone.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com
3
17843

CCaassee22:2:200-c-cvv-0-044445500-C-CBBMM-P-PVVCC DDooccuummeennt t1186-1 FFileiledd0066/0/011/2/200 PPaaggee117854oof f128294 PPaaggeeIDID #:460906
Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
4
17854

CCaassee22:2:200-c-cvv-0-044445500-C-CBBMM-P-PVVCC DDooccuummeennt t1186-1 FFileiledd0066/0/011/2/200 PPaaggee117865oof f128294 PPaaggeeIDID #:460917

Karen M. Minutelli

From: Sent: To: Subject:

LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Thursday, May 14, 2020 7:59 AM Jimmy Threatt RE: Request Legal Call with BROWN #54460-097

After speaking with our BOP Attorney, a 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales

>>> On 5/13/2020 at 1:31 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Wednesday, May 13, 2020 12:56 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Subject: RE: Request Legal Call with BROWN #54460‐097
Due to lack of information regarding the urgency of your request, your request is being sent to the BOP Legal Office for further review and approval. Please be advised this may delay your request for a Legal Call.
>>> On 5/12/2020 at 2:14 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
Thank you, Ms. Morales. To respond to your questions:
1
17865

CCaassee22:2:200-c-cvv-0-044445500-C-CBBMM-P-PVVCC DDooccuummeennt t1186-1 FFileiledd0066/0/011/2/200 PPaaggee117876oof f128294 PPaaggeeIDID #:460928
1) The matter is urgent and we need to speak with Andre Brown as soon as possible. It cannot wait until the facility comes off the enhanced mitigation measures.
2) We do have wide windows of availability; we can make any time work. 3) We understand and will respect the 15 minute time limit.
As a reminder, I can be reached at 650-384-5319, and my colleagues can also be reached on their cell phones (Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707).
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Tuesday, May 12, 2020 1:41 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Cc: Christopher J. Lee <clee@birdmarella.com>; Naeun Rim <nrim@birdmarella.com> Subject: Re: Request Legal Call with BROWN #54460‐097
Good Morning,
I have been asked to evaluate your request for a legal call with the above-referenced inmate/your client.
Inmate legal calls usually go through the Unit Team, but our COVID-19 situation has prompted enhanced mitigation measures which has staff focusing on inmate management and enhanced sanitation. In short, FCC Lompoc is not under normal operation, and with matters like these, we want to facilitate legal access while balancing public health safety issues.
As FCC Lompoc is currently in the midst of enhanced mitigation measures to address our COVID-19 situation, such as restricting inmate movement, I need to weigh the necessity of the request/call against the goals of our current measures. Also, inmates at FCC Lompoc currently have access to TRULINCS (Email) and phone calls. The inmate can place you on his phone list and email account. Additionally, they receive legal mail daily.
2
17876

CCaassee22:2:200-c-cvv-0-044445500-C-CBBMM-P-PVVCC DDooccuummeennt t1186-1 FFileiledd0066/0/011/2/200 PPaaggee117887oof f128294 PPaaggeeIDID #:460939
We provide an occasional inmate attorney call when the inmate demonstrates that communication with attorneys by correspondence, visiting, or normal telephone use is not adequate, and when the inmate or inmate's attorney can demonstrate an imminent court deadline. Thus, we'd like to ask you the following questions:
1. Urgency - can this call wait until we can come off of our enhanced mitigation measures? Is there an imminent court deadline? Are communication by other means not adequate? While I am likely to defer to a fellow officer of the court's representation of urgency, I need to ask as FCC Lompoc staff are currently focused on active inmate management and enhanced sanitation, and minimizing movement and maintaining maximum separation is critical during this time;
2. Assuming urgency, do you have wide windows of date and time when you are willing to receive a call? For example, Wed - Friday from 812 noon? As arranging a call during this time will require moving an inmate from a quarantined or isolation area/cell to a staff office with a phone, there is much coordination that needs to happen to ensure the safety of all concerned. Thus, staff need maximum flexibility on when they can actually make the call;
3. Can the call be of limited duration, like 15 minutes? As there are other urgent calls that need to be accommodated, keeping the calls short is important to facilitating those are deemed necessary. Keep in mind there is extensive disinfecting that needs to happen of the office and phone after each is made.
Thank you for your patience and understanding during this challenging time.
Ms. Morales
>>> On 5/12/2020 at 12:11 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
My firm is counsel for Andre Brown (Inmate No. 54460-097). We are trying to schedule a call to discuss an urgent legal matter with him. We called the facility this morning, but no one is answering the phone.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110
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E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
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Karen M. Minutelli

From: Sent: To: Subject:

LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Thursday, May 14, 2020 10:51 AM Jimmy Threatt Re: Request Legal Call with TERPOGOSYAN #77271-112 (LOM)

A 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales

>>> On 5/13/2020 at 4:03 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
I am writing to schedule a legal call with Vazgen Terpogosyan (Inmate No. 77271-112). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

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Karen M. Minutelli

From: Sent: To: Subject:

LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Thursday, May 14, 2020 10:53 AM Jimmy Threatt Re: Request Legal Call with REED #27173-016 (LOM)

A 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales

>>> On 5/13/2020 at 4:07 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
I am writing to schedule a legal call with Vincent Reed (Inmate No. 27173-016). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

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Karen M. Minutelli

From: Sent: To: Subject:

Jennifer Merkle <jmmerkle@bop.gov> Thursday, May 14, 2020 1:04 PM Jimmy Threatt Requests for Legal Calls with Clients / Prospective Clients at FCC Lompoc

Good afternoon,
I think you may recall we spoke on the phone about a legal call for inmate Ben the other day. I have now been assigned 13 of your requests to review. It has become apparent that some of the individuals that you seek to have a legal call with are represented by other counsel as to their release options; therefore, I will be assessing each of these requests individually.
In the meantime, please feel free to send any additional request to me directly for review.
I will be in touch as to each request separately.
Thank you, Jennifer
Jennifer M. Merkle Senior Attorney FCC Victorville PO Box 5400 Adelanto, CA 92301 Phone: 760-530-5440 Fax: 760-530-5103 jennifer.merkle@usdoj.gov jmmerkle@bop.gov
SENSITIVE/PRIVILEGED COMMUNICATION The information contained in this electronic message and any and all accompanying documents constitutes sensitive information. This information is the property of the U.S. Department of Justice. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received this message in error, please notify us immediately at the above number to make arrangements for its return to us.

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Karen M. Minutelli

From: Sent: To: Subject:

Jorge A. Garcia <jagarcia@bop.gov> Thursday, May 14, 2020 2:36 PM Jimmy Threatt RE: Request Legal Call with CARROR-TORRES #41928-069 (LOM)

Per our legal department, I am going to cancel the scheduled legal call the above client.
>>> Jimmy Threatt <jthreatt@birdmarella.com> 5/14/2020 10:00 AM >>>
Mr. Garcia,
Thank you for your email. Tuesday, May 19, at 9 am works. Please note that I should be called at 650-3845319. Let me know if I need to do anything else prior to the call.
I have also submitted requests for calls with the inmates listed below, who are also housed at USP Lompoc. Those calls have not been scheduled yet, though the requests pertaining to Brown and Keswaran have also been approved.
1) Andre Brown, 54460-097 2) Kanagasabai Kana Keswaran, 75139-112 3) Vincent Reed, 27173-016 4) Vazgen Terpogosyan, 77271-112 5) Felix Samuel Garcia, 46693-298 6) Shawn Fears, 34182-060

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

From: Jorge A. Garcia <jagarcia@bop.gov> Sent: Thursday, May 14, 2020 8:43 AM To: Jimmy Threatt <jthreatt@birdmarella.com> Subject: RE: Request Legal Call with CARROR‐TORRES #41928‐069 (LOM)
Good morning Sir or Mam,
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I've been tasked to set up a legal call with your client. Due to the high volume of requested legal calls, I'm currently scheduling calls for next week 05/18/20 to 05/22/20. The earliest slot I have available would be Tuesday 9 am. If that would work, please advise. If not, please provide 3 dates and times next week you would like the call to take place. Thank You.
After speaking with our BOP Attorney, a 15 minute legal call has been approved for you and your client.
A Unit Team member will be contacting you in the near future to set up a legal call.
Thank you for your patience and understanding during this challenging time.
Ms. Morales
>>> On 5/13/2020 at 1:32 PM, Jimmy Threatt <> wrote:
This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Wednesday, May 13, 2020 12:56 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Subject: RE: Request Legal Call with CARROR‐TORRES #41928‐069 (LOM) Due to lack of information regarding the urgency of your request, your request is being sent to the BOP Legal Office for further review and approval. Please be advised this may delay your request for a Legal Call.
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>>> On 5/12/2020 at 2:12 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
Thank you, Ms. Morales. To respond to your questions:
1) The matter is urgent and we need to speak with Yonnedil Carror Torres as soon as possible. It cannot wait until the facility comes off the enhanced mitigation measures.
2) We do have wide windows of availability; we can make any time work. 3) We understand and will respect the 15 minute time limit.
As a reminder, I can be reached at 650-384-5319, and my colleagues can also be reached on their cell phones (Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707).
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: LOX/Legal Svcs~ <LOX/LegalSvcs~@bop.gov> Sent: Tuesday, May 12, 2020 1:40 PM To: Christopher J. Lee <clee@birdmarella.com>; Jimmy Threatt <jthreatt@birdmarella.com>; Naeun Rim <nrim@birdmarella.com> Subject: Re: Request Legal Call with CARROR‐TORRES #41928‐069 (LOM)
Good Morning,
I have been asked to evaluate your request for a legal call with the above-referenced inmate/your client.
Inmate legal calls usually go through the Unit Team, but our COVID-19 situation has prompted enhanced mitigation measures which has staff focusing on inmate management and enhanced sanitation. In short, FCC Lompoc is not under normal operation, and with matters like these, we want to facilitate legal access while balancing public health safety issues.
As FCC Lompoc is currently in the midst of enhanced mitigation measures to address our COVID-19 situation, such as restricting inmate movement, I need to weigh the necessity of the request/call against the goals of our current measures. Also, inmates at FCC Lompoc currently have access to TRULINCS (Email) and phone
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calls. The inmate can place you on his phone list and email account. Additionally, they receive legal mail daily.
We provide an occasional inmate attorney call when the inmate demonstrates that communication with attorneys by correspondence, visiting, or normal telephone use is not adequate, and when the inmate or inmate's attorney can demonstrate an imminent court deadline. Thus, we'd like to ask you the following questions:
1. Urgency - can this call wait until we can come off of our enhanced mitigation measures? Is there an imminent court deadline? Are communication by other means not adequate? While I am likely to defer to a fellow officer of the court's representation of urgency, I need to ask as FCC Lompoc staff are currently focused on active inmate management and enhanced sanitation, and minimizing movement and maintaining maximum separation is critical during this time;
2. Assuming urgency, do you have wide windows of date and time when you are willing to receive a call? For example, Wed - Friday from 812 noon? As arranging a call during this time will require moving an inmate from a quarantined or isolation area/cell to a staff office with a phone, there is much coordination that needs to happen to ensure the safety of all concerned. Thus, staff need maximum flexibility on when they can actually make the call;
3. Can the call be of limited duration, like 15 minutes? As there are other urgent calls that need to be accommodated, keeping the calls short is important to facilitating those are deemed necessary. Keep in mind there is extensive disinfecting that needs to happen of the office and phone after each is made.
Thank you for your patience and understanding during this challenging time.
Ms. Morales
>>> On 5/12/2020 at 12:09 PM, Jimmy Threatt <jthreatt@birdmarella.com> wrote:
My firm is counsel for Yonnedil Carror Torres (Inmate No. 41928-69). We are trying to schedule a call to discuss an urgent legal matter with him. We called the facility this morning, but no one is answering the phone.
We would appreciate any assistance you can provide. You can reach me at this email address or on my cell phone, 650-384-5319. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at 617-631-2122 and Naeun Rim at 678-492-6707.
Thank you.
Jimmy Threatt
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Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
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Karen M. Minutelli

From: Sent: To: Subject:

Jennifer Merkle <jmmerkle@bop.gov> Friday, May 15, 2020 1:51 PM Jimmy Threatt Re: Requests for Legal Calls with Clients / Prospective Clients at FCC Lompoc

Good afternoon,
I have had a chance to go through all of the emails and research the cases for each of the individuals you are seeking to speak with. Please call me at your convenience so we can over these and identify your specific needs.
Jennifer
Jennifer M. Merkle Senior Attorney FCC Victorville PO Box 5400 Adelanto, CA 92301 Phone: 760-530-5440 Fax: 760-530-5103 jennifer.merkle@usdoj.gov jmmerkle@bop.gov
SENSITIVE/PRIVILEGED COMMUNICATION The information contained in this electronic message and any and all accompanying documents constitutes sensitive information. This information is the property of the U.S. Department of Justice. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received this message in error, please notify us immediately at the above number to make arrangements for its return to us.
>>> Jennifer Merkle 5/14/2020 1:03 PM >>> Good afternoon,
I think you may recall we spoke on the phone about a legal call for inmate Ben the other day. I have now been assigned 13 of your requests to review. It has become apparent that some of the individuals that you seek to have a legal call with are represented by other counsel as to their release options; therefore, I will be assessing each of these requests individually.
In the meantime, please feel free to send any additional request to me directly for review.
I will be in touch as to each request separately.
Thank you, Jennifer
Jennifer M. Merkle Senior Attorney FCC Victorville PO Box 5400 Adelanto, CA 92301
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Phone: 760-530-5440

#:47140

Fax: 760-530-5103

jennifer.merkle@usdoj.gov

jmmerkle@bop.gov

SENSITIVE/PRIVILEGED COMMUNICATION The information contained in this electronic message and any and all accompanying documents constitutes sensitive information. This information is the property of the U.S. Department of Justice. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received this message in error, please notify us immediately at the above number to make arrangements for its return to us.

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6/1/2020Case 2:20-cv-04450-CBM-PVC DocumeCMn/tE1CF8-- 1CalifForinliea dCe0nt6ra/l0D1is/tr2ic0t Page 199 of 224 Page ID
Complaints and Other Initiating#:D71o1 cuments
2:20-cv-04450-CBM-PVC Yonnedil Carror Torres et al v. Louis Milusnic et al
ACCO,NORTHERN,(PVCx),DISCOVERY

UNITED STATES DISTRICT COURT

Notice of Electronic Filing

CENTRAL DISTRICT OF CALIFORNIA

The following transaction was entered by Rim, Naeun on 6/1/2020 at 7:05 PM PDT and filed on 6/1/2020

Case Name:

Yonnedil Carror Torres et al v. Louis Milusnic et al

Case Number: 2:20-cv-04450-CBM-PVC

Filer:

Yonnedil Carror Torres

Andre Brown

Felix Samuel Garcia

Vincent Reed

Shawn L. Fears

Document Number: 16

Docket Text: COMPLAINT with filing fee previously paid ($400 paid on May 16, 2020, receipt number 26467298), filed by Plaintiffs-Petitioners Yonnedil Carror Torres, Andre Brown, Felix Samuel Garcia, Vincent Reed, Shawn L. Fears.(Rim, Naeun)

2:20-cv-04450-CBM-PVC Notice has been electronically mailed to:
Chung Hae Han chung.han@usdoj.gov, CaseView.ECF@usdoj.gov, steven.stassi@usdoj.gov, usacac.civil@usdoj.gov
Damon A Thayer damon.thayer@usdoj.gov, CaseView.ECF@usdoj.gov, richard.childress@usdoj.gov, USACAC.Civil@usdoj.gov
Donald Specter dspecter@prisonlaw.com
Dorothy Wolpert dwolpert@birdmarella.com, dh@birdmarella.com, docket@birdmarella.com, dw@birdmarella.com
James Stamper Threatt jthreatt@birdmarella.com, aeastman@birdmarella.com, docket@birdmarella.com
Jasmin Yang jasmin.yang@usdoj.gov, CaseView.ECF@usdoj.gov, toni.fratiello@usdoj.gov, USACAC.Civil@usdoj.gov
Jumin Lee clee@birdmarella.com, jkinsey@birdmarella.com
Keith M Staub keith.staub@usdoj.gov, CaseView.ECF@usdoj.gov, richard.childress@USDOJ.GOV, usacac.civil@usdoj.gov
Naeun Rim nrim@birdmarella.com, rflores@birdmarella.com

https://ecf.cacd.uscourts.gov/cgi-bin/Dispatch.pl?327575690096969

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6/1/2020Case 2:20-cv-04450-CBM-PVC DocumeCMn/tE1CF8-- 1CalifForinliea dCe0nt6ra/l0D1is/tr2ic0t Page 200 of 224 Page ID Paul Bartholomew Green Paul.Green@usdoj.gov, Ca#s:e7V1i2ew.ECF@usdoj.gov, karolyn.s.li@usdoj.gov, steven.stassi@usdoj.gov, USACAC.Civil@usdoj.gov
Peter Bibring pbibring@aclu-sc.org, ckasher@aclusocal.org
Peter J Eliasberg peliasberg@aclusocal.org, ckasher@aclusocal.org
Sara Linda Norman snorman@prisonlaw.com, akirby@prisonlaw.com
Shoshan a E Bannett sbannett@birdmarella.com, 7451345420@filings.docketbird.com, karen-minutelli9770@ecf.pacerpro.com, kminutelli@birdmarella.com
Terry W Bird tbird@birdmarella.com, juh@birdmarella.com, twb@birdmarella.com
2:20-cv-04450-CBM-PVC Notice has been delivered by First Class U. S. Mail or by other means BY THE FILER to :
The following document(s) are associated with this transaction:
Document description:Main Document Original filename:C:\fakepath\Corrected Complaint with Exhibits - Lompoc.pdf Electronic document Stamp: [STAMP cacdStamp_ID=1020290914 [Date=6/1/2020] [FileNumber=29909540-0] [69754b542f0acee275d2b8079f1cb6c3a20ff03667fbbc935df6f747cbd3190f74d0 7b397a9616a4bd5593e9fea953535568615de3b63af20e95dc54a9e923e0]]

https://ecf.cacd.uscourts.gov/cgi-bin/Dispatch.pl?327575690096969

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Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 201 of 224 Page ID #:713
EXHIBIT P
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Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 202 of 224 Page ID #:714

1

2

Declaration of Richard Lumpkin

3

I, Richard Lumpkin, hereby declare:

4

1. I make this declaration based on my own personal knowledge and if

5 called to testify I could and would do so competently as follows:

6

2. I was incarcerated at the Federal Correctional Complex at Lompoc in

7 the low security portion of the complex, known as FCI Lompoc (Low) from

8 October 7, 2019 until May 8, 2020 when the court granted my motion for

9 compassionate release. I am 60 years old, asthmatic, take medication for Hepatitis

10 C, have hypertension, have no spleen and am thus immunocompromised.

11

3. I filed my compassionate relief request electronically with the warden

12 on April 7, 2020 a week before the Special Intelligence Services Lieutenant

13 announced to our housing unit -- as explained in more detail below: “don't file

14 requests for compassionate release, we are not accepting them.” The federal public

15 defender filed a compassionate release motion on my behalf with the federal

16 district court, which attached all the paperwork I filed with the warden.

17

4. In April 1996, I was convicted of possession with the intent to

18 distribute drugs and sentenced to 405 months in federal prison

19

5. I arrived in Lompoc October 7, 2019 from FCI Talladega.

20

6. The federal complex at Lompoc is made up of a medium security

21 facility, which is called both FCI Lompoc (medium) and USP Lompoc, FCI

22 Lompoc (low), the low security facility where I was incarcerated, and the

23 correctional camp for minimum security prisoners.

24

Housing Units and the Impossibility of Maintaining Social Distancing

25

7. FCI Lompoc (low) is made up of four housing buildings, plus a food

26 service, building, a laundry building and a few other buildings. The two older

27 housing buildings are known as the A dorm and B dorm, and two newer buildings

28 are K Dorm and J Dorm.

1

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1

8. I was in B dorm, which has three floors. Each floor in the building is

2 considered a housing unit. The first floor of B dorm building has administrative

3 offices for case managers etc. and one dorm at one end of the floor that typically

4 housed about 70-80 prisoners while I was at FCI Lompoc although the population

5 was sometimes significantly higher.

6

9. On the second floor of B dorm is Dog Unit, which consists of dorm on

7 either end of the floor typically with 70-80 inmates in each dorm – but sometimes a

8 lot more -- and in between there are about 16 cells with non-locking doors with

9 four double bunks that housed anywhere from 4 to 8 persons per cell. Everyone on

10 that floor in both the dorms and the cells shares one of two bathrooms that have 6

11 sinks, 6 toilet stalls, and 3 urinals and either five or six shower stalls. The

12 bathrooms were heavily used and there were regularly lines of people to use the

13 sinks, showers, and toilets so social distancing was impossible.

14

10. On the third floor of B dorm is Echo Unit, which has the exact same

15 floor plan as the second tier. I was in a cell (E06-035L) in the Echo Unit tier the

16 whole time I was at Lompoc.

17

11. The non-cell portion of my dorm generally housed 70-80 people in

18 rows of bunk beds, although the population was at times much higher. There were

19 four rows of about 12 two-man bunks, and a fifth row of about six bunks against

20 one wall. Even when all the bunks were not filled and the dorm was housing 70-80

21 people you cannot maintain social distancing because there were only about 4 four

22 feet between the rows and only about 3 feet between top bunk and bottom bunk.

23 All the dorms throughout FCI Lompoc (low) had pretty much the same

24 arrangement with long rows of two-person bunks with about three feet between the

25 top and bottom bunk and about four feet between each row of bunks.

26

12. I was in an 8-man cell with only four people. Even with only four

27 people, it was impossible to maintain social distance. When all of us were in the

28 cell together we'd practically be shoulder to shoulder if standing (e.g., for daily

2

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1 mandatory institution standing Count, retrieving personal items from our locker,

2 etc.). It was worse in the other cells that had six or eight people because, among

3 other things, the top and bottom bunk were only about three feet apart.

4

13. The lay out of the A dorm is similar to B dorm except first floor has

5 no dorm, only health services, which was used by everyone in A, B, K and J dorms

6 until the housing units went on quarantine in mid-to-late April. When we went to

7 medical for sick call, which occurred four days a week (Monday, Tuesday,

8 Thursday and Friday), we’d have to wait in a waiting room with about 10 seats in

9 which they’d cram up to 40 people, and social distancing was impossible. Starting

10 about April 14 when they started to put some floors on quarantine, we shifted from

11 having everyone go to sick call and pill call on first floor of A dorm, to having it

12 on each floor of building. But, even with the new arrangement inmates still lined

13 up like cattle much less than six feet apart in their housing units for pill call, some

14 of whom would be hacking and coughing. Also, a number of people had to take

15 their pills in front of the medical personnel, so they’d have to take their masks off

16 when they were close to other people. I also observed that the medical personnel

17 would handle all sorts of objects including syringes for insulin shots etc. without

18 ever changing their gloves.

19

14. K Dorm and J Dorm are each one floor with one dorm on each side of

20 the floor. Each side can hold about 120 people with the Corrections Officer’s

21 office in the middle. Like the housing units in A and B dorms, K and J dorms

22 also have long rows of two-man bunks spaced closed together where social

23 distancing is impossible. Each dorm has its own restroom with six shower stalls,

24 five urinals, six toilets and I believe four sinks. The dorm also has four telephones.

25

15. It also impossible to maintain social distance in places other than

26 one’s dorm and sick and pill call. The A and B dorm buildings have open

27 stairwells on either end of the building to access all three floors. We were herded

28 like cattle to go up and down the stairwell twice a day to pick up our meals and

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1 then bring them back to our housing unit. The stairwells were narrow, and as

2 people went up and down we were basically shoulder to shoulder. Worse still at

3 breakfast we’d be carrying open trays of food.

4

16. As of May 8 when I was released, people were still going up and

5 down a narrow stairwell to get their food and bring it up to their dorm – at both

6 breakfast and lunch when you also pick up dinner in bag.

7

17. The people in J and K dorms go outside their housing units dorms and

8 stand in lines packed close together to get food. We called these lines nuts to butts

9 and they were the polar opposite of appropriate social distancing.

10

18. Once COVID hit and lots of people began getting sick, the various

11 housing units were finally put on quarantine. My floor was the last to be

12 quarantined.

13

19. On April 22, before my housing unit was quarantined, the staff asked

14 for volunteers from our housing unit to replace the inmate workers from other units

15 who had been doing the laundry, making the meals, etc. I and some other

16 volunteers from my unit from his floor volunteered in laundry, where we were

17 required to launder mop heads and rags used to clean dorms that were under

18 quarantine in the same machines as linen and clothes for prisoners. Other

19 volunteers from my unit staffed food service, which J dorm had staffed until a

20 number of people in that dorm got sick and it was quarantined.

21

20. The plan was to separate the volunteer workers in a separate housing

22 area to try to ensure that so they can be guaranteed to have workers so staff does

23 not have to do the work. However, a couple of days later one of the volunteers

24 from my dorm got sick and our dorm was put on quarantine also.

25

Prisoners Regularly Come Into Contact with Numerous Staff Members

26

on Daily Basis

27

21. Prisoners came into large numbers of staff members every day

28 presenting a high risk of transmission from prisoners to the staff into the

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1 community and from staff to prisoners. On a given day I estimate people in my

2 unit would come into contact with 12-20 staff members.

3

22. For example, when we’d go up and down the stairwells for breakfast

4 we’d come into contact 3 or 4 staff members. When we used the stairwells for

5 lunch, we’d come into close contact with 5 staff members who were different from

6 the ones on duty at breakfast because of shift change.

7

23. On any given day we might also come into contact with the Special

8 Investigation Services Lieutenant, the Operations Lieutenant and sometimes even

9 the warden. Once they began doing temperature checks in the housing units we’d

10 interact with additional correctional staff and medical.

11

24. In addition, some staff members would interact with prisoners all

12 across the facility increasing the chances that infections would spread from one

13 housing unit to another and across all the dorms at Lompoc.

14

25. For example, once they shifted from having us go to medical and pill

15 call in Dorm A to having pill call held at every housing unit, the same two medical

16 personnel would come to our floor to hand out medicines, etc. In addition, until

17 late April 2020, BOP personnel were commuting between the different Lompoc

18 complex facilities for a variety of reasons, such as overtime, to transport prisoners

19 for disciplinary or medical reasons related to COVID, thus increasing the chances

20 of spreading the infection from one part of the complex to others.

21

Failure to Isolate People Who Were Showing Symptoms of Having

22

COVID

23

26. The prison consistently did a poor job of isolating people who might

24 have COVID from the rest of the people in the housing units in a number of ways.

25 First, they did not do routine temperature checks until the end of April and did not

26 do mass testing until May 4.

27

27. Before they began testing and regular temperature checks, the only

28 time someone would be taken out of the dorm because he was suspected of having

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1 COVID was if he was able to submit a successful request to get medical care and if

2 his temperature when he went to medical was 100.4 degrees or above. They would

3 not remove people from the housing units and isolate them even if they had a lot of

4 symptoms like severe coughing unless their temperature was 100.4 degrees or

5 above. I know of a number of people who were coughing a lot (some of whome

6 were later were determined to have COVID) but were not removed from our

7 housing unit because they did not have a high enough temperature. In particular, I

8 remember there was a guy used to play pinochle with regularly. He had a terrible

9 cough that you could not miss for three days, but none of the correctional staff took

10 him to medical or arranged to remove him from the unit. He finally went to

11 medical when a dentist who was in our unit to collect another prisoner to bring him

12 to medical heard him coughing loudly. But even after he went to medical, he was

13 returned to unit because temp was not 100.4 or above.

14

28. Even when they started doing temperature checks of everyone on our

15 unit in late April, they still would not remove and isolate symptomatic people

16 unless their temperature was 100.4 or above.

17

29. And, even when they did remove someone from our housing unit who

18 was suspected of having COVID because of their temperature, they did not remove

19 people who were in close contact with that prisoner, including those who might

20 have shared a bunk or slept in a bunk next to that person.

21

30. They also required one person who was showing symptoms to

22 continue to do work in food services right up until our dorm was quarantined

23 because his temperature was not high enough, even though he repeatedly told staff

24 he was not feeling well. But, a few days later, on approximately April 24, 2020,

25 while he was housed in the Gymnasium with volunteers from Echo Unit -- his

26 fever reached or went above 100.4 degrees, and they finally isolated him from

27 everyone else. I hate to think how many people in our housing unit he might have

28 infected to say nothing of the effects of his doing food preparation while sick with

6

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1 COVID.

2

31. The same day another of the volunteers housed in the gym took ill and

3 was also isolated. People on his floor who had temperature or other symptoms

4 were taken to field hospital buildings or the Unicor building for isolation; I believe

5 some others may have been taken to a local community hospital. But, they did not

6 remove people from the unit he had been in unless they had a temperature of 100.4

7 so there were people who appeared to be sick and later tested positive who

8 remained in our dorm.

9

32. By the time I left May 8, 2020, I am personally aware of four people

10 had been removed from my housing unit because they were presumed to be

11 COVID positive.

12

Personal Protective Equipment and Lack of Cleaning Supplies

13

33. We did not get masks till April 6, when we were provided one paper

14 surgical mask per person. Correctional staff told us we could get a replacement for

15 damaged masks, but when people asked for a replacement for their mask which

16 had been damaged, they were told by correctional staff that they did have them

17 anymore.

18

34. On April 13 we were provided with three cloth masks made out of

19 canvass material. You could wash your mask regularly if you had money to buy

20 soap or shampoo from the commissary. But if you didn’t, you were out of luck

21 because we were not provided shampoo and did not get enough soap to shower and

22 wash our hands regularly, much less clean our masks.

23

35. Lots of correctional staff did not wear masks regularly. I frequently

24 have seen corrections staff pull their masks down so it was not covering their

25 mouth or nose when they talked prisoners, even when they were very close to

26 prisoners and even after we had been quarantined in our housing units.

27

36. Lots of prisoners did not wear their masks and corrections staff did

28 not make any real effort to ensure they did. The only time they made any real

7

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1 effort to make prisoners wear their masks was when they knew the warden might

2 be coming around.

3

37. We did not have adequate supplies of soap. Once a week we were

4 provided with a small bar of soap that was about 1/3 the size of a typical bar of

5 Dove or Ivory soap. If you showered and washed your hands regularly it would run

6 out in a few days. There were liquid dispensers at sink, which are filled by the

7 orderlies in the morning, but that would be empty by lunch time. We were not

8 provided with hand sanitizer.

9

38. We were also not provided with adequate cleaning supplies to ensure

10 the bathrooms and our housing units were clean. We were given cleaning solution

11 that was heavily diluted with water, and we were allowed to fill a spray bottle with

12 it so we could clean our bunks, the bathroom faucets and toilet handles, if we had

13 enough. But, there was never enough. And when the big jugs were refilled with

14 the watered-down cleaning solution there would be a mad dash by people to try to

15 get their spray bottle filled, and social distancing went out the window. They did

16 not provide us with papers towels, so it was difficult to use the watered-down

17 disinfectant to try to wipe down surfaces to disinfect them. One time they brought

18 36 rags up to the housing unit and told to use them to wipe down bunks, walls and

19 then told us to return then to be laundered. But, there more than 140 of us between

20 the two dorms and the cells and only 36 rags. And after we returned them to be

21 laundered, we never got them back. Nor did we ever get paper towels to enable us

22 to wipe down surfaces to try to keep them disinfected.

23

39. The bathrooms were in constant use day and night. But, they were

24 only cleaned by orderlies once a day.

25

Testing and Release from Prison

26

40. The prison did not start COVID testing for all three facilities at the

27 Lompoc Complex until Monday May 4. They started testing people living in K

28 and J dorm Monday and Tuesday.

8

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1

41. I was tested Wednesday. On Friday May 8 after they had started

2 testing, they announced the names of 24 people they said had tested negative and

3 were going to be moved out of the dorm. I think they were moved to the Unicor

4 building. The people who tested positive but were asymptomatic stayed in the

5 dorm. They also took the people who tested positive and were symptomatic out of

6 the dorm but I am not sure where they went. My name not among the 24, but I

7 was also never told results of my test.

8

42. I was scheduled to be released that for release that day. At 3 pm staff

9 came to get me and take him to health services unit in A Building and asked me to

10 go into a room with quarantine sticker. They told me they needed to test me again

11 even though I tested just a few days before. They used what was called Abbott

12 Rapid test on me. A nurse walked into the quarantine area where I was with an

13 uncovered Q-Tip and swabbed my nose and then walked off with the Q-tip again

14 uncovered. She returned shortly thereafter and told that I was asymptomatic but

15 positive and instructed me to isolate for 10 days upon release. By contrast, when I

16 had been tested on Wednesday the Q-tip was sealed until used and then

17 immediately put into a closed tube after the swab was done, and personnel doing

18 test were outfitted in protective gear with a face mask. Friday, I tested in

19 quarantined area. Because the Q-tip had been uncovered, and I was in a quarantine

20 area, I was afraid he might have been infected on the way out the door. So, I went

21 to Kaiser shortly after I was released to be retested because it seemed like they had

22 done a really sloppy job with the test right before I left. Kaiser also informed me

23 that I was confirmed COVID but asymptomatic.

24

43. Although I tested positive, I did not feel sick in anytime from

25 February till I was released. But in January I had a high fever, a really bad cough,

26 and could not hold down food or water. For three days, I dressed in all my clothes

27 got in bed under blankets and sweated profusely till my fever broke. So, I think I

28 either got two false positive test results or I caught COVID in January.

9

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1

Medical Care at Lompoc

2

44. The medical care at Lompoc was poor. In early November, I went in

3 with a broken tooth. It was left untreated until March even though I had previously

4 had a broken teeth and developed an abscess that caused my face to swell up badly.

5

45. Also, as I said above, medical did nothing with people who showed

6 COVID symptoms, including bad coughs unless their fever was high enough.

7

Inability to File Grievances

8

46. Special Investigation Services Lieutenant Torres come into the

9 activities room our unit the day after they had passed out cloth masks, about April

10 13 or so, and told all the people assembled there “do not submit any request for

11 compassionate release, or grievances because staff is not accepting them because

12 we are understaffed.” From then on, the counselors who were supposed to accept

13 grievances -- what we called BP-9 grievances -- would not give out grievance

14 forms or accept grievances.

15

47. I also spoke to another prisoner, Anthony Samuels, who was

16 quarantined with me in Echo Unit. He told me that he had submitted a request for

17 compassionate release to his Unit Case Manager, Mr. Ornelas, asking that it be

18 forwarded to the warden from consideration. Mr. Ornelas responded, “I’ll forward

19 it to my shredder.” Mr. Samuels told me he never received a written response of

20 any kind from Mr. Ornelas or the warden.

21

Denial of Access to Phones and E-Mail

22

48. After our housing was quarantined, we were no longer able to access

23 the phones and computer terminals we had previously been able to use to send e-

24 mails. The phones and computer terminals were in a hut between A and B dorm,

25 but we could not access them. Thus, for the last three weeks I was there I was

26 completely unable to use the phone or send e-mails. A memo was put out without

27 any signature saying that if we wanted to make a legal call, we could contact the

28 housing unit team, which would evaluate your need to make the call. However, as

10

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Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 212 of 224 Page ID #:724

1 However, as explained above, the Special Investigative Services Lieutenant had

2 told us the staff would not be able to handle grievances and requests. In addition, I

3 spoke to two different prisoners who told me they had made requests to talk to

4 their lawyer to call the Federal Public Defenders to help them with a

5 compassionate release motions, but were refused. I am not aware of anyone who

6 made a request to have a legal call during the three weeks we were on quarantine

7 whose request was granted. I also understand that people living in J and K dorms

8 had their e-mail and phone access cut off even though the phones and computers

9 were in their housing units because we had had our access cut off.

10

I declare under penalty of perjury of the laws of the State of California and

11 the United States that the foregoing is true and correct. Executed this 22st day of

12 May, 2020 in Lakewood, California.

13 14 15
16
17 18 19 20 21 22 23
24
25
26
27
28

11

212
--- ·--

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 213 of 224 Page ID #:725
EXHIBIT Q
213

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 214 of 224 Page ID #:726

·TA. .LKING.POIN. TS

FOR .

INMA. T. E-S

ASKING A~ .B. O.. UT.

E. AR. LY

RELEASES .DURING COVID-19 as of 4/20/20

• Theprocess for CompassionateRelease,otherwiseknown as a ReductionIn ~ei:ttence(R1S),
has not chiµigecfiorthe.Bureauof Prisons(BOf). An inmatemay submita·reque$1to the
a W~rdenforconside:rationI.nniateswill beprovideda response.An inmatemay.initiate
requestfor considerationonly whenthere areparticularly"~xtraordinaiyor conipeJling'' crrcum~ces whichcould.notreasoµa~lyhayebeen foreseenby th~court at the time of sentencmg. TheBOPhas defi,ned"extraordinaryor compelling' as the fol_lowing: . • Te~~aJ MedicalCondition
• Debili~tedMc;:dicaCl ondition
11 ''Ne'YLaw'' Elderlylzimates(November1, _1987,70+midserved30 years or more)
11 ElderlyInmateswith MedicalConditions(65+ and 50%) 11 OtherElderlyInmates(65+ and 10yearsor 75%pfterm)

• Pursuantto the mostrecentguidancefromthe AttorneyGeneral(as of 4-/20/20a) nd the

·CARESACT,FCC Lompochas recentlycompletedan initialreviewof aUinmateswho meet

the followingcriteriaforpossibleplacementin homeconfinement:

·

• Non-.VioleDO:tffense

• No Sex Offenders
• Noi:>etainers .

11 No Terrorist

m Lessth.anCARE-MH4

• · PATTERNRisk Scoreis _Minimum(R-MIN)

111 Servedat least 50%of their sentence

11 No incidentreportsin the past 12months

111 U.S. Citizen

'

11 ViableReleasePlan

• Ininatesdo NOTneed to applyor requestto be consider~dfo:rthe CARESACT.

_

• Basedon this reviewprocess,59 inmateshave beenidentifiedwho meetthe currentCARES

·ACT criterja;pendingthe successfulclearanceof the 14-dayquarantineperiod;24 inmatesare

scheduledto be-releasedto homeconfmernentor a ResidentialReentryCenter(RRC)before

the end of April.

• Theother CA.RESACT eligibleinmateswill be notifiedof their statusas staffengageinthe

releaseplanningprocess with their family;we ask for y()urpatienceduringthis process.

• Inmateswho are not currentlyeligibleunderthe·cARES ACT will NOTbe notifi~d.

• As the AttorneyGeneraland BOPhave broaddiscretionregardingdesignationpolicies,FCC

Loinpocremainsreadyto applynew criteriaand considerationsas theyare i_ssued.

214

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 215 of 224 Page ID #:727
EXHIBIT R
215

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 216 of 224 Page ID #:728

From: Sent: To: Cc:
Subject:

Naeun Rim Thursday, May 21, 2020 5:44 PM Osinoff, Joanne (USACAC); Harris, David M. (USACAC); Staub, Keith (USACAC) Christopher J. Lee; Donald Specter ; Dorothy Wolpert; Jimmy Threatt; patrick@prisonlaw.com; Peter Bibring ; Peter Eliasberg ; Sara Norman ; Shoshana E. Bannett; Terry W. Bird RE: RE: URGENT: Request to meet and confer on ex parte application

Thanks Joanne. From our view, there is no deadline to extend, since we are filing ex parte and the Court will set the hearing and briefing schedule…but we will note your position.
Naeun Rim
Principal O: 310.201.2100 F: 310.201.2110 E: nrim@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: Osinoff, Joanne (USACAC) <Joanne.Osinoff@usdoj.gov> Sent: Thursday, May 21, 2020 5:42 PM To: Naeun Rim <nrim@birdmarella.com>; Harris, David M. (USACAC) <David.M.Harris@usdoj.gov>; Staub, Keith (USACAC) <Keith.Staub@usdoj.gov> Cc: Christopher J. Lee <clee@birdmarella.com>; Donald Specter <dspecter@prisonlaw.com>; Dorothy Wolpert <dwolpert@birdmarella.com>; Jimmy Threatt <jthreatt@birdmarella.com>; patrick@prisonlaw.com; Peter Bibring <PBibring@aclusocal.org>; Peter Eliasberg <PEliasberg@aclusocal.org>; Sara Norman <snorman@prisonlaw.com>; Shoshana E. Bannett <sbannett@birdmarella.com>; Terry W. Bird <tbird@birdmarella.com> Subject: RE: RE: URGENT: Request to meet and confer on ex parte application
Naeun, Thank you for your email. Keith Staub is included on this email so you will have his contact information. We appreciated the opportunity to begin discussions on the Wilson and Torres cases. We agree with your summary except on one point. Without an agreed extension of time for the government’s response, the defendants/respondents oppose oversized briefing. Best, Joanne
Joanne S. Osinoff | Assistant United States Attorney Chief | General Civil Section United States Attorney's Office | Central District of California Federal Building, Room 7516 | 300 N. Los Angeles St. | Los Angeles, California 90012 T: 213.894.6880| F: 213.894.7819 |Joanne.Osinoff@usdoj.gov
From: Naeun Rim <nrim@birdmarella.com> Sent: Thursday, May 21, 2020 5:25 PM
1
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Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 217 of 224 Page ID #:729
To: Osinoff, Joanne (USACAC) <JOsinoff@usa.doj.gov>; Harris, David M. (USACAC) <DHarris@usa.doj.gov> Cc: Christopher J. Lee <clee@birdmarella.com>; Donald Specter <dspecter@prisonlaw.com>; Dorothy Wolpert <dwolpert@birdmarella.com>; Jimmy Threatt <jthreatt@birdmarella.com>; patrick@prisonlaw.com; Peter Bibring <PBibring@aclusocal.org>; Peter Eliasberg <PEliasberg@aclusocal.org>; Sara Norman <snorman@prisonlaw.com>; Shoshana E. Bannett <sbannett@birdmarella.com>; Terry W. Bird <tbird@birdmarella.com> Subject: RE: RE: URGENT: Request to meet and confer on ex parte application
Joanne and David,
Thank you for the call today. As discussed:
‐ You’ve agreed to accept service on behalf of the Respondents in their official capacities in both Torres v. Milusnic, 20‐CV‐4450 CBM (PVC) and Wilson v. Ponce, 20‐CV‐4451 DDP (PVC). We will arrange for the process server to serve conformed copies of the Complaints and Summons at: Federal Building 300 N. Los Angeles St., RM 7516 (seventh floor) Los Angeles, CA
‐ The process server said tomorrow morning, they would be able to provide us with a range of times in the afternoon tomorrow during which they could serve you. We will contact you in the morning to see if someone can be available to accept process during those times.
‐ We have agreed to resume our meet‐and‐confer on our expedited discovery request after we file out ex parte application for TRO and OSC re preliminary injunction, and you have had a chance to review. That said, you understand that the relief we are requesting is urgent, and we will be asking the Court to move expeditiously.
‐ You have not yet taken a position on whether you will oppose our application to file an oversized brief. ‐ You will confer with Respondents about producing the medical records of the named petitioners.
Please let me know if any of the above is inaccurate.
Naeun Rim
Principal O: 310.201.2100 F: 310.201.2110 E: nrim@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: Naeun Rim Sent: Thursday, May 21, 2020 2:34 PM To: Osinoff, Joanne (USACAC) <Joanne.Osinoff@usdoj.gov>; Harris, David M. (USACAC) <David.M.Harris@usdoj.gov> Cc: Christopher J. Lee <clee@birdmarella.com>; Donald Specter <dspecter@prisonlaw.com>; Dorothy Wolpert <dwolpert@birdmarella.com>; Jimmy Threatt <jthreatt@birdmarella.com>; patrick@prisonlaw.com; Peter Bibring <PBibring@aclusocal.org>; Peter Eliasberg <PEliasberg@aclusocal.org>; Sara Norman <snorman@prisonlaw.com>; Shoshana E. Bannett <sbannett@birdmarella.com>; Terry W. Bird <tbird@birdmarella.com> Subject: RE: URGENT: Request to meet and confer on ex parte application
Joanne and David,
For our discussion today, please see attached our draft discovery requests—we are sending the ones for Terminal Island, but we will also be filing near identical requests for Lompoc.
2
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Naeun Rim
Principal O: 310.201.2100 F: 310.201.2110 E: nrim@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: Osinoff, Joanne (USACAC) <Joanne.Osinoff@usdoj.gov> Sent: Thursday, May 21, 2020 12:51 PM To: Naeun Rim <nrim@birdmarella.com>; Harris, David M. (USACAC) <David.M.Harris@usdoj.gov> Cc: Christopher J. Lee <clee@birdmarella.com>; Donald Specter <dspecter@prisonlaw.com>; Dorothy Wolpert <dwolpert@birdmarella.com>; Jimmy Threatt <jthreatt@birdmarella.com>; patrick@prisonlaw.com; Peter Bibring <PBibring@aclusocal.org>; Peter Eliasberg <PEliasberg@aclusocal.org>; Sara Norman <snorman@prisonlaw.com>; Shoshana E. Bannett <sbannett@birdmarella.com>; Terry W. Bird <tbird@birdmarella.com> Subject: RE: URGENT: Request to meet and confer on ex parte application
Ms. Rim, The conference call invite did not include a phone number or conference code. Please provide that to me. Thanks. Joanne Osinoff
From: Osinoff, Joanne (USACAC) Sent: Wednesday, May 20, 2020 9:38 PM To: Naeun Rim <nrim@birdmarella.com>; Harris, David M. (USACAC) <DHarris@usa.doj.gov> Cc: Christopher J. Lee <clee@birdmarella.com>; Donald Specter <dspecter@prisonlaw.com>; Dorothy Wolpert <dwolpert@birdmarella.com>; Jimmy Threatt <jthreatt@birdmarella.com>; patrick@prisonlaw.com; Peter Bibring <PBibring@aclusocal.org>; Peter Eliasberg <PEliasberg@aclusocal.org>; Sara Norman <snorman@prisonlaw.com>; Shoshana E. Bannett <sbannett@birdmarella.com>; Terry W. Bird <tbird@birdmarella.com> Subject: RE: URGENT: Request to meet and confer on ex parte application
Thank you.
From: Naeun Rim <nrim@birdmarella.com> Sent: Wednesday, May 20, 2020 8:01 PM To: Osinoff, Joanne (USACAC) <JOsinoff@usa.doj.gov>; Harris, David M. (USACAC) <DHarris@usa.doj.gov> Cc: Christopher J. Lee <clee@birdmarella.com>; Donald Specter <dspecter@prisonlaw.com>; Dorothy Wolpert <dwolpert@birdmarella.com>; Jimmy Threatt <jthreatt@birdmarella.com>; patrick@prisonlaw.com; Peter Bibring <PBibring@aclusocal.org>; Peter Eliasberg <PEliasberg@aclusocal.org>; Sara Norman <snorman@prisonlaw.com>; Shoshana E. Bannett <sbannett@birdmarella.com>; Terry W. Bird <tbird@birdmarella.com> Subject: RE: URGENT: Request to meet and confer on ex parte application
3 p.m. works for us. We will revise the dial in and include David.
Naeun Rim
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Case 2:20-cv-04450-CBM-PVC
Principal O: 310.201.2100 F: 310.201.2110 E: nrim@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

Document 18-1 Filed 06/01/20 #:731

Page 219 of 224

Page ID

From: Osinoff, Joanne (USACAC) <Joanne.Osinoff@usdoj.gov> Sent: Wednesday, May 20, 2020 7:51 PM To: Naeun Rim <nrim@birdmarella.com>; Harris, David M. (USACAC) <David.M.Harris@usdoj.gov> Cc: Brianna Mircheff <Brianna_Mircheff@fd.org>; Christopher J. Lee <clee@birdmarella.com>; Donald Specter <dspecter@prisonlaw.com>; Dorothy Wolpert <dwolpert@birdmarella.com>; Jimmy Threatt <jthreatt@birdmarella.com>; patrick@prisonlaw.com; Peter Bibring <PBibring@aclusocal.org>; Peter Eliasberg <PEliasberg@aclusocal.org>; Sara Norman <snorman@prisonlaw.com>; Shoshana E. Bannett <sbannett@birdmarella.com>; Terry W. Bird <tbird@birdmarella.com> Subject: RE: URGENT: Request to meet and confer on ex parte application

Ms. Rim, We will need to push back our telephone conference a few hours. David Harris, the Civil Division Chief, will be participating. Unfortunately, he is not available until 3:00 pm PT. Thank you for your anticipated courtesy in this matter. Joanne Osinoff
Joanne S. Osinoff | Assistant United States Attorney Chief | General Civil Section United States Attorney's Office | Central District of California Federal Building, Room 7516 | 300 N. Los Angeles St. | Los Angeles, California 90012 T: 213.894.6880| F: 213.894.7819 |Joanne.Osinoff@usdoj.gov
From: Naeun Rim <nrim@birdmarella.com> Sent: Wednesday, May 20, 2020 5:48 PM To: Osinoff, Joanne (USACAC) <JOsinoff@usa.doj.gov> Cc: Brianna Mircheff <Brianna_Mircheff@fd.org>; Christopher J. Lee <clee@birdmarella.com>; Donald Specter <dspecter@prisonlaw.com>; Dorothy Wolpert <dwolpert@birdmarella.com>; Jimmy Threatt <jthreatt@birdmarella.com>; Naeun Rim <nrim@birdmarella.com>; patrick@prisonlaw.com; Peter Bibring <PBibring@aclusocal.org>; Peter Eliasberg <PEliasberg@aclusocal.org>; Sara Norman <snorman@prisonlaw.com>; Shoshana E. Bannett <sbannett@birdmarella.com>; Terry W. Bird <tbird@birdmarella.com> Subject: RE: URGENT: Request to meet and confer on ex parte application

Thanks very much. I have copied my co‐counsel here. 10 a.m. works well for us. We will send you a dial‐in number for that time.

In sum, we plan to file an ex parte application for a TRO and preliminary injunction seeking immediate injunctive relief, including (1) putting in place a court‐supervised evaluation process that allows for the immediate release or home confinement of more prisoners until enough people have been released to make the facilities safe, and (2) adhering to CDC guidance, at minimum, regarding prevention and treatment of COVID‐19. Concurrently, we plan to file:

‐ Ex parte application for expedited discovery (in support of our request for a TRO and preliminary injunction) ‐ Request to file an oversized brief for the TRO and PI application ‐ Request for provisional class certification

4
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Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 220 of 224 Page ID #:732
We also want to confirm that Respondents have accepted service of the petition and complaint pursuant to the local rules and that they will require nothing further in that regard.
We will speak to you tomorrow.
Naeun Rim
Principal O: 310.201.2100 F: 310.201.2110 E: nrim@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com
From: Osinoff, Joanne (USACAC) <Joanne.Osinoff@usdoj.gov> Sent: Wednesday, May 20, 2020 4:36 PM To: Naeun Rim <nrim@birdmarella.com> Subject: RE: URGENT: Request to meet and confer on ex parte application
Ms. Rim, Your email has been referred to me. I am available to confer with you tomorrow morning, any time after 10:00 a.m. I have a conference call that is starting in a few minutes which makes me unavailable today. I can be reached at the number below. Thank you. Joanne Osinoff
Joanne S. Osinoff | Assistant United States Attorney Chief | General Civil Section United States Attorney's Office | Central District of California Federal Building, Room 7516 | 300 N. Los Angeles St. | Los Angeles, California 90012 T: 213.894.6880| F: 213.894.7819 |Joanne.Osinoff@usdoj.gov
From: Naeun Rim <nrim@birdmarella.com> Sent: Wednesday, May 20, 2020 4:15 PM To: USACAC‐Habeas <USACAC‐Habeas@usa.doj.gov> Subject: URGENT: Request to meet and confer on ex parte application
Dear USAO,
I represent the petitioners in Torres v. Milusnic, 20‐CV‐4450 CBM (PVC) and Wilson v. Ponce, 20‐CV‐4451 DDP (PVC), and we intend to file an ex parte request for expedited discovery tomorrow or Friday. We would like to meet and confer with counsel for respondents as soon as possible. No one has yet been assigned. Please let me know the appropriate person to contact.
Naeun Rim
Principal O: 310.201.2100 F: 310.201.2110
5
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Case 2:20-cv-04450-CBM-PVC
E: nrim@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

Document 18-1 Filed 06/01/20 #:733

Page 221 of 224

Page ID

6
221

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 222 of 224 Page ID #:734
EXHIBIT S
222

~------- --------~----------------- .It.

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 223 of 224 Page ID #:735

Dttlaration of Shtlly Iftmmtl1■ r■

2

I. Shelly llemmelgem. herehy declar, :

3

J. I make thi, declaration based on my own personal knowlt"dgcand if

4 called to testify I could and would do so competentlyas follows:

S

2. My husband Adam Ilemmelgam is a prisonerat LompocFCI, where

6 he has been since about October 2019. Hi, BOP Register Number is 16008-081.

7

3. I have spoken to my husband a few times by phone recently. fie has

8 told me that he tested positive for COVID-19on May 5. J-letold me that he had a

9 terrible fever for 3 to 4 days after he tested positive,but the prison gave him no

10 medical care, he was left to suffer through it. He told me that he heard the prison

11 was supposedto be doing regulartemperaturechecks,but that they were not even

12 doing that; that they just left him. He told me that two weeks after his test, the

13 staff came through and asked if he had any symptoms,and when he said no, they

14 marked him as recovered- they did not do a followup test or even take people's

15 temperaturesbefore markingthem as recovered. I can still hear him coughingand

16 wheezing when I talk to him on the phone, and I am very worried.

17

4. From what my husbandhas told me, I understandhe is still in the

18 same dorm where he was housed when the COVID-19outbreakbegan,which he

19 has previously told me he estimatedholds 80 to 150people. He has told me that

20 they have been on lockdown for long period and unable to leave the dorm, which is

21 so crowded they can do little besidessit on their bunks,althoughhe recently has

22 had limited access to phones and laundry. He has recentlytold me that there are 23 still people who were positive for COVIDand are still symptomaticin the dorm

24 with him. Since there's no proof of being immuneonce you've had the virus, I am

25 worried he could become ill again due to the housingsituationand lack of follow

26 up testing.

27

5. I spoke to my husband by phone on Tuesday,May 26, 2020. He was

28 very emoti~nal,which is very unusual for him. He told me the that a man named

1

223

Case 2:20-cv-04450-CBM-PVC Document 18-1 Filed 06/01/20 Page 224 of 224 Page ID #:736

·-- ·iRt.-:

zm :

Mohamed who ha~hcen in the dorm with him had been very ill for four days. that

2 he had repeatedly a.c;kedfor medical attention but been denied, that ii got to the

3 point that he couldn't even walk and that other prisoners had to help him get into

4 his bunk. Eventually, Adam said, Mohamed collapsed and fell out of his bunk and

5 went into convulsions on the ground. Adam said the people in the dorm began

6 making as much noise es possible to try to get help from the staff, but he and other

7 inmatesjust watched as Mohamedturned blue and died. He said even when the

8 staff arrived, there was no urgency. The staff pronounced Mohamed dead and put

9 him in a body bag and wheeled him away, and balled up his sheets and threw them

10 in the comer.

11

12

I declare under penalty of perjury of the laws of the State of California and

13 the United States that the foregoing is true and correct. Executed this 30th day of

14 May, 2020 in Layton, Utah.
15 16

~~ ~UA.
Shelly Hemmelgarn

17

18

19

20

21

22

23

24

25

26

27

28

2

224

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 1 of 34 Page ID #:737

1 Terry W. Bird – Bar No. 49038 tbird@birdmarella.com
2 Dorothy Wolpert – Bar No. 73213 dwolpert@birdmarella.com
3 *Naeun Rim – Bar No. 263558 nrim@birdmarella.com
4 Shoshana E. Bannett – Bar No. 241977 sbannett@birdmarella.com
5 Christopher J. Lee – Bar No. 322140 clee@birdmarella.com
6 Jimmy Threatt – Bar No. 325317 jthreatt@birdmarella.com
7 BIRD, MARELLA, BOXER, WOLPERT, NESSIM, DROOKS,
8 LINCENBERG & RHOW, P.C. 1875 Century Park East, 23rd Floor
9 Los Angeles, California 90067-2561 Telephone: (310) 201-2100
10 Facsimile: (310) 201-2110

11 Peter J. Eliasberg – Bar No. 189110 peliasberg@aclusocal.org
12 Peter Bibring – Bar No. 223981 pbibring@aclusocal.org
13 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
14 1313 West 8th Street Los Angeles, CA 90017
15 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
16 Attorneys for Plaintiff-Petitioners
17

Donald Specter – Bar No. 83925 dspecter@prisonlaw.com
Sara Norman – Bar No. 189536 snorman@prisonlaw.com
PRISON LAW OFFICE 1917 Fifth Street Berkeley, California 94710 Telephone: (510) 280-2621 Facsimile: (510) 280-2704

18

UNITED STATES DISTRICT COURT

19

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

20 YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL
21 GARCIA; ANDRE BROWN; and SHAWN L. FEARS, individually and
22 on behalf of all others similarly situated,

23

Plaintiff-Petitioners,

24

vs.

25 LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL
26 CARVAJAL, in his capacity as Director of the Bureau of Prisons,
27 Defendant-Respondents.
28

CASE NO. 2:20-cv-04450-CBM-PVCx DECLARATION OF JIMMY THREATT IN SUPPORT OF PLAINTIFF-PETITIONERS’ EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION
Assigned to Hon. Consuelo B. Marshall Courtroom 8B

3651135

DECLARATION OF JIMMY THREATT

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 2 of 34 Page ID #:738

1

DECLARATION OF JIMMY THREATT

2

I, Jimmy Threatt, declare as follows:

3

1. I am an active member of the Bar of the State of California and an

4 associate with Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow,

5 a professional corporation, attorneys of record for Plaintiff-Petitioners

6 (“Petitioners”) Yonnedil Carror Torres, Felix Samuel Garcia, Vincent Reed, Andre

7 Brown, and Shawn Fears, individually and on behalf of all others similarly situated,

8 in this action. I make this declaration in support of Petitioners’ Ex Parte

9 Application for Temporary Restraining Order and Order to Show Cause Re:

10 Preliminary Injunction. Except for those matters stated on information and belief,

11 I make this declaration based upon personal knowledge and, if called upon to do so,

12 I could and would so testify.

13

2. I have attempted to arrange legal calls with eight prisoners incarcerated

14 at FCI Lompoc and USP Lompoc who had been identified to my firm by their

15 family members and friends as seeking our representation in this action. I was

16 unable to speak with any of them before the Complaint was filed on May 16, 2020.

17 Since that time, I have been allowed to speak with only a single prisoner, Shawn

18 Fears. Attached to this declaration as Exhibit A is a compilation of true and correct

19 copies of my email correspondence with BOP employees concerning legal calls.

20 Although several other calls were initially scheduled, they were each abruptly

21 cancelled by the Bureau of Prisons (“BOP”). Since May 21, 2020, during meet-and-

22 confer emails and calls with counsel for Respondents, my colleague Naeun Rim and

23 I have also asked opposing counsel to help arrange these calls. As of now, there are

24 no other legal calls scheduled.

25

3. On May 12, 2020, I called the main desks of FCI Lompoc and USP

26 Lompoc to schedule legal calls with prisoners. No one answered and I was not

27 granted opportunities to leave voice messages.

28

4. On May 12, 2020, I emailed the publicly listed address for FCI Lompoc

3651135

2
DECLARATION OF JIMMY THREATT

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 3 of 34 Page ID #:739

1 and USP Lompoc to schedule legal calls with several prisoners, including:

2 (1) Lonnie Ben, No. 69141-051; (2) Yonnedil Carror Torres, No. 41928-69; and

3 (3) Andre Brown, No. 54460-097. That same day I received responses asking about

4 the urgency of each call. I immediately responded that each call was urgent, I

5 would abide by any time limits, and I could make myself available at any time for

6 the calls in question.

7

5. The next day, on May 13, 2020, I received email responses indicating

8 that due to “lack of information regarding the urgency” of my request to speak with

9 each prisoner, the matters were being referred to the BOP Legal Department.

10 I immediately responded to indicate that, while I would not divulge privileged

11 information, the calls concerned release options in light of the COVID-19 crisis.

12 That same day, I also submitted requests for legal calls with prisoners (1) Vincent

13 Reed, No. 27173-016, and (2) Vazgen Terpogosyan, No. 77271-112.

14

6. Later on May 13, 2020, I received a call from Jennifer Merkle, an

15 attorney with the BOP Legal Department, informing me that a call had been

16 approved with Lonnie Ben.

17

7. At 12:18 A.M. on May 14, 2020, I emailed the address for Lompoc to

18 request a legal call with Felix Samuel Garcia, No 46693-298. I did not receive a

19 response.

20

8. At 12:21 A.M. on May 14, 2020, I emailed the address for Lompoc to

21 request a legal call with Shawn Fears, No 34183-060. I did not receive a response.

22

9. Later on May 14, 2020, I received email responses indicating my

23 requests for calls had been approved.

24

10. Shortly thereafter, I received an additional email scheduling a legal call

25 with Yonnedil Carror Torres for 9:00 A.M. on May 19, 2020. As to my other

26 outstanding requests for legal calls, the officer could not “tell me when they [the

27 prisoners] will be afforded the legal call.” Later that afternoon, the officer cancelled

28 the call with Torres that had been scheduled just hours earlier: “Per our legal

3651135

3
DECLARATION OF JIMMY THREATT

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 4 of 34 Page ID #:740

1 department, I am going to cancel the scheduled legal call [with] the above client

2 [Torres].”

3

11. Also on May 14, 2020, an officer called to schedule my call with

4 prisoner Lonnie Ben for 1:00 P.M. later that same day. When I called FCI Lompoc

5 at 1:00 P.M., I was told that the call had been cancelled and that it would be

6 rescheduled but was not given any other details.

7

12. I received another call on May 14th scheduling calls for the following

8 morning, May 15th, with two prisoners. But shortly thereafter, the same officer

9 called to cancel both because “something came up.”

10

13. At 1:04 P.M. on May 14, 2020, I received an email from Jennifer

11 Merkle, an attorney with BOP, informing me that she had been referred thirteen of

12 my requests to speak with prisoners, which would include all of my requests to

13 speak with prisoners at FCI and USP Lompoc. She stated she would need to assess

14 every request individually and would be in touch as to each separately.

15

14. On Friday, May 15, 2020, I received a second email from Ms. Merkle,

16 asking me to call her so that she and I could “identify [my] specific needs.”

17

15. On Monday, May 18, 2020, I emailed Ms. Merkle to arrange a time to

18 speak on the phone about my requests. I followed up by email on May 19th, and we

19 spoke by phone that afternoon. At that time, she indicated that she would approve

20 five of my requests to speak with prisoners at FCI and USP Lompoc (Lonnie Ben,

21 Yonnedil Carror Torres, Vazgen Terpogosyan, Felix Samuel, and Shawn Fears).

22 With respect to three other prisoners she indicated they were actively represented by

23 other counsel and that I would need to coordinate with their other attorneys for

24 purposes of arranging legal calls.

25

16. The next day, May 20, 2020, I received a call in the morning

26 scheduling my call with prisoner Shawn Fears for 9:00 AM on Friday, May 22th.

27 Later on May 20th, I called Ms. Merkle back to confirm that I had permission from

28 the counsel for Lonnie Ben and Yonnedil Carror Torres to speak with them. Ms.

3651135

4
DECLARATION OF JIMMY THREATT

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 5 of 34 Page ID #:741

1 Merkle indicated she would also approve my requests to speak with Lonnie Ben and

2 Yonnedil Carror Torres, but the calls have not been scheduled.

3

17. Except for Shawn Fears, my calls with the other six prisoners at FCI

4 and USP Lompoc, now approved by Ms. Merkle, have not yet been scheduled.

5

18. On May 22, 2020, I spoke with Shawn Fears. During our call, he

6 relayed the following information:

7

• Shawn Fears lives in A Unit of the South Camp at USP Lompoc. In

2013, he was diagnosed with asthma.

8

• Mr. Fears filed a grievance on April 12, 2020 related to the prison’s

9

failure to adopt adequate preventative and treatment measures, in

particular social distancing. At that time, B. Von Blanckensee was the

10

Acting Warden. He has not receive a response to his grievance. Mr.

Fears also filed a motion for compassionate release in the Northern

11

District of Ohio, pursuant to 13 U.S.C. § 3582.

12

• A Unit, where Mr. Fears lives, is an open dormitory with 160 prisoners,

who sleep in bunk beds that are separated by two feet. Each bunk bed

13

has two prisoners. The 160 prisoners share 5 toilets, 3 urinals and 7

showers. There is little to no room for prisoners to move around freely,

14

as even the designated walkway at the back of the dormitory has been

filled with bunkbeds due to overcrowding at the prison.

15

• Mr. Fears has never been tested for COVID-19. Nobody at South

16

Camp has been tested unless they have exhibited severe symptoms, at

which point they are removed from the camp and quarantined in the

17

segregated housing unit for fourteen days. Mr. Fears estimates that 30

prisoners have been removed from A Camp, but that only about 15

18

have returned.

19

• Since the COVID-19 outbreak, prison officials have stopped accepting

requests for medical care and Mr. Fears has seen other prisoners denied

20

regular medical treatment.

21

• Mr. Fears has experienced symptoms typically associated with COVID-

19, including feeling cold, a dry cough, chills, and body aches.

22

Mr. Fears has never been offered treatment or a consultation with a

physician. Many of the other prisoners in A Unit have experienced

23

similar symptoms.

24

• A Unit prisoners were each given a single mask on April 6, 2020. On

April 14, they were each given 3 masks made of jean material, which

25

they are told to wash and re-use. They have not been given any other

masks.

26

• Prison officials started temperature checks on March 23, 2020. As of

27

May 21, 2020, they stopped temperature checks and announced that

they would not conduct them going forward.

28

3651135

5
DECLARATION OF JIMMY THREATT

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 6 of 34 Page ID #:742

1

• On March 23, 2020, prison officials began restricting the amount of

time prisoners were allowed outside, to 30 minutes a day in groups of

2

45 prisoners. From April 1th to May 18th, the prisoners were on total

lockdown, never allowed outside of A Unit. Since May 1th, they are

3

again being allowed outside for 30 minutes a day.

4

• The prisoner orderlies are responsible for cleaning the communal areas

and bathrooms while prisoners are responsible for cleaning their own

5

bunk beds. They are given watered-down cleaning supplies.

6

• After the COVID-19 outbreak began, prison officials moved some

prisoners to an unused cafeteria that had long since been abandoned

7

because it is overrun by black mold.

8

I declare under penalty of perjury under the laws of the United States of

9 America that the foregoing is true and correct, and that I executed this declaration

10 on June 1, 2020, at Los Angeles, California.

11

12

/s/ Jimmy Threatt

Jimmy Threatt

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3651135

6
DECLARATION OF JIMMY THREATT

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 7 of 34 Page ID #:743
EXHIBIT A
7

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 8 of 34 Page ID #:744

u
From: Sent: To: Cc: Subject:

Jimmy Threatt Thursday, May 14, 2020 12:19 AM LOX/ExecAssistant@bop.gov Christopher J. Lee; Naeun Rim Legal Call with Inmate at USP Lompoc

I am writing to schedule a legal call with Felix Samuel Garcia (Inmate No. 46693-298). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.

We would appreciate any assistance you can provide. You can reach me at this email address or on my cell

phone,

. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at

and Naeun Rim at

.

Thank you.

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1
8

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 9 of 34 Page ID #:745

u
From: Sent: To: Cc: Subject:

Jimmy Threatt Thursday, May 14, 2020 12:21 AM 'LOX/ExecAssistant@bop.gov' Christopher J. Lee; Naeun Rim Legal Call with Inmate at USP Lompoc

I am writing to schedule a legal call with Shawn Fears (Inmate No. 34183-060). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.

We would appreciate any assistance you can provide. You can reach me at this email address or on my cell

phone,

. If I am unavailable, you can also reach my colleagues (copied here): Christopher Lee at

and Naeun Rim at

.

Thank you.

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

1
9

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 10 of 34 Page ID #:746

From : Sent : To : Subject:

LOX/Legal Svcs~ <L0X/Lega1Svcs~@bop .gov> Thursday, May 14, 2020 7:58 AM Jimmy Threatt RE:Request Legal Call w ith BEN #69141-051 (LOF)

After speaking with our BOP Attorney, approved f or you and your client.

a 15 minute legal call ha s been

A Unit Team member will be contacting legal call .

you in the near f uture to set up a

Thank you for your patience time.

and understanding

during this challenging

Ms. Morales

> > > On 5/13/2020 at 1:30 PM, Jimmy Threatt <jthreatt@birdmarella .com > wrote :
This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.
Jimmy Threatt
Associate T: 310.201.2100 F: 310 .201.2110 E:j th reatt@b irdmare lla.com
Bird, Marella, Boxer, Wolpert, Nessim,
Drooks, Lincenberg & Rhow, P.C.
1875 Centu ry Park East, 23rd Floor Los Angeles, California 90067·2561 www.BirdMarella.com
From : LOX/ Legal SvcsN<LOX/LegalSvcsN@bop.gov> Sent : W ednesday, M ay 13, 2020 12:57 PM To: Jimm y Threatt <jt hreatt @bird marella.com> Subject: RE: Request Legal Call wit h BEN #69 141-051 (LOF)
Due to lack of info rmation reqardi nq the urqency of your requ est, your request is beinq sent to t he BOP Leqal Office for fu rthe r review and approva l. Please be advised this may delay your request for a Lega l Call.
>> > On 5/ 12/2020 at 2:15 PM, Jimmy Threatt <jthreatt@ birdmare lla.com > wrote :
Thank you, Ms. Morales. To respond to your questions:
1
10

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 11 of 34 Page ID #:747
1) The matter is urgent and we need to speak with Lonnie Ben as soon as pos sible. It cannot wait until the facility comes off the enhan ced mitigatio n measures.
2) We do have wide windows of availabi lity; we can make any time work.
3) We und erstand and will respect the 15 minute time limit.

As a reminder , I can be reached at phones (Christopher Lee at

, and my colleagues can also be reached on their cell

and Naeun Rim at

).

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E:jthreatt@b irdmare lla.com
Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Ange les, Californ ia 90067-2561 www.BirdMarella.com

From: LOX/Legal SvcsN<LOX/LegalSvcsN@bop.gov> Sent: Tuesday, May 12, 2020 1:42 PM To: Jimmy Threatt <jthreatt@birdmare lla .com> Cc: Christopher J. Lee <clee@birdmare lla.com>; Naeun Rim <nrim@birdmare lla .com> Subject: Re: Request Legal Call with BEN #69141-051 (LOF)

Good Morning,

I have been asked to eva l ua te your request above - referenced inmate/your client .

for a l egal ca ll with the

Inmate lega l calls usual l y go thr ough the Unit Team, bu t our COVID-1 9

s ituati on has prompted enhanced mi tigat i on measures wh ich has sta ff

f ocusing on inmate mana gement and enhanced sanitation . In short, FCC

Lompoc is not under normal opera ti on , and wi th mat ter s like the se , we

want t o facilitate

l egal access while balancing pub li c health sa f ety

issues .

As FCC Lompoc i s current l y in the midst of enhanced mi tigat i on

measures to address our COVID- 19 s ituati on , suc h as restricting

inmate move ment, I need to we i gh the necessity of the request/call

against the goals o f ou r current measures . Also, inmates at FCC

Lompoc currently have access to TRULINCS (Email) and phone

calls . The inmate can place you on his phone li st and email

account . Additionally,

they receive legal mail daily .

2
11

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 12 of 34 Page ID #:748

We provide an occas i ona l inmate attorney call when the inmate

demonstrates

that communica ti on with attorneys by correspondence ,

visiting,

or normal teleph one use is not adequate , and when the

inmate o r inmate ' s attorney can demonstrate an imminent court

deadline . Thus, we ' d like t o ask you the f o ll owing questions :

1 . Urgency - can this call wait until we can come of f of our enhanced

mitigation

measure s? Is there an imminent court deadline?

Are

communication by o ther means not adequate? While I am likely to defer

to a fellow of f icer of the court's representation

of urgency, I need

to ask as FCC Lompoc s taff are currently

focused on active inmate

management and enhanced sanitation , and minimizing movement and

maintaining

maximum separation

is critical

during thi s time;

2 . Assuming urgency , do you have wide windows o f date and time when

you are willing t o receive a call? Fo r example , Wed - Friday fr om 8 -

12 noon? As arranging a call during this time will require moving an

inmate from a quarantined

or is olation area/cell

to a sta f f of fi ce

with a phone, there is much coordination

that needs to happen to

ensure the safety o f all concerned . Thus, staf f need maximum

flexibility

on when they can actually make the call;

3 . Can the call be of limited duration,

like 15 minutes?

As there

are other urgent calls that need to be accommodated, keeping the

calls short is important t o facilitating

those are deemed

necessary . Keep in mind there is extensive disin f ecting that needs

to happen o f the of f ice and phone after each is made .

Thank you for your patience time.

and understanding

during thi s challenging

Ms . Mora les

> > > On 5/12/2020 at 12:16 PM, Jimmy Threatt <jthreatt@birdmarel la .com > wrote :
My fom is counse l for Lonnie Ben (Inmate No . 69141-051 ) . We are 1:Iyingto schedule a call to discuss an m gent legal matter with him. We called the facility this morning , but no one is answering the phone.

We would appre ciate any assistance you can provide. You can reach me at this email address or on

my cell phone ,

If I am unavailable , you can also reach my colleagues (copied here):

Christopher Lee at

and Naeun Rim at

Thank you.

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella

.co m

3
12

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 13 of 34 Page ID #:749
Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Cent ury Park East, 23r d Floo r Los Ange les, Californ ia 90067 -256 1 www.BirdMarella.com
4
13

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 14 of 34 Page ID #:750

From: Sent: To: Subject:

LOX/Legal Svcs~ <L0X/Lega1Svcs~ @bop .gov> Thursday, May 14, 2020 7:59 AM Jimmy Threatt RE:Request Legal Call with BROWN #54460 -097

Aft er speak i ng wit h o ur BOP At torney , a 15 minu t e lega l cal l h a s been appr o ved f o r y o u and y o ur client .

A Unit Team member wi l l be c o ntacting legal ca l l .

y o u in t h e near f utu r e t o set up a

Th ank y o u for y o ur patience t i me.

and understanding

du ri ng t h is c h a l leng i ng

Ms . Mo ra l e s

>> > On 5/13/2020 at 1:31 PM, Jimmy Threatt <jthreatt@birdmarella .com > wrote :
This is a legal call regardin g release options given the COVID crisis, and is urgent given that crisis.
Jimmy Threatt
Associate T: 310.201.2100 F: 310 .201.2110 E:j th reatt@b irdmare lla.com
Bird, Marella, Boxer, Wolpert, Nessim,
Drooks, Lincenberg & Rhow, P.C.
1875 Centu ry Park East, 23rd Floor Los Angeles, California 90067·2561 www.BirdMarella.com
From: LOX/ Legal SvcsN <LOX/ LegalSvcsN@bop.gov> Sent: W ednesday, Ma y 13, 202012 :56 PM To: Jimm y Threatt <jthreatt @birdmare lla.com> Subject: RE: Request Legal Call with BROW N #54460-097
Due to lack of information regarding the urgency of your request, your request is being sent to the BOP Legal Office for further review and approva l. Please be advised this may delay your request for a Legal Call.
>> > On 5/12/2020 at 2:14 PM, Jimmy Threatt <jthreatt@ birdmare lla.com > wrote :
Thank you, Ms. Mora les. To respond to your questions:
1
14

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 15 of 34 Page ID #:751
1) The matter is m gent and we need to speak with Andre Brown as soon as possible. It cannot wait until the facility comes off the enhanced mitigation measm es.
2) We do have wide windows of availability; we can make any time work.
3) We understand and will respect the 15 minute time limit.

As a reminder, I can be reached at phones (Christopher Lee at

, and my colleagues can also be reached on their cell

and Naeun Rim at

).

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E:jthreatt@b irdmare lla.com
Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Ange les, Californ ia 90067-2561 www.BirdMarella.com

From: LOX/ Legal SvcsN <LOX/LegalSvcsN@bop.gov> Sent: Tuesday, Ma y 12, 2020 1:41 PM To: Jimmy Threatt <jthreatt@birdmare lla .com> Cc: Christopher J. Lee <clee@birdmare lla.com>; Naeun Rim <nrim@birdmare lla .com> Subject: Re: Request Legal Call with BROW N #54460-097

Good Morn i ng,

I have been asked to eva l ua t e your request above - referenced inmate/your cl ien t .

for a l egal ca l l with t he

Inmate lega l cal l s usual l y go t hrough the Unit Team , bu t our COVI D-1 9 s it uat i on has prompted enhanced mi tigat i on measures wh i ch has sta f f f ocusing on inmate management and enhanced sanitation . In short , FCC Lompoc is no t under normal opera t i on , and wi th mat t ers l i ke t hese, we want t o fac i l i tate l egal access whi le balanc i ng publ i c hea l th sa f ety issues .

As FCC Lompoc i s current l y in t he midst of enhanced mi tigat i on measures to address our COVID- 19 s it uat i on, such as res tri cting inmate move ment, I need to we i gh the necess i ty of t he reques t /ca l l against the goals o f ou r cur r ent measu r es . Also , in mates at FCC Lompoc current l y have access to TRULIN CS (Email) and phone calls . The inmate can p l ace you on his phone l i st and emai l account . Additiona l ly, they receive legal mail daily .

2
15

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 16 of 34 Page ID #:752

We provide an occas i ona l inmate attorney call when the inmate

demonstrates

that communica ti on with attorneys by correspondence ,

visiting,

or normal teleph one use is not adequate , and when the

inmate o r inmate ' s attorney can demonstrate an imminent court

deadline . Thus, we ' d like t o ask you the f o ll owing questions :

1 . Urgency - can this call wait until we can come of f of our enhanced

mitigation

measure s? Is there an imminent court deadline?

Are

communication by o ther means not adequate? While I am likely to defer

to a fellow of f icer of the court's representation

of urgency, I need

to ask as FCC Lompoc s taff are currently

focused on active inmate

management and enhanced sanitation , and minimizing movement and

maintaining

maximum separation

is critical

during thi s time;

2 . Assuming urgency , do you have wide windows o f date and time when

you are willing t o receive a call? Fo r example , Wed - Friday fr om 8 -

12 noon? As arranging a call during this time will require moving an

inmate from a quarantined

or is olation area/cell

to a sta f f of fi ce

with a phone, there is much coordination

that needs to happen to

ensure the safety o f all concerned . Thus, staf f need maximum

flexibility

on when they can actually make the call;

3 . Can the call be of limited duration,

like 15 minutes?

As there

are other urgent calls that need to be accommodated, keeping the

calls short is important t o facilitating

those are deemed

necessary . Keep in mind there is extensive disin f ecting that needs

to happen o f the of f ice and phone after each is made .

Thank you for your patience time.

and understanding

during thi s challenging

Ms . Mora les

> > > On 5/12/2020 at 12:11 PM, Jimmy Threatt <jthreatt@birdmarel la.com > wrote :
My fom is counsel for Andre Brown (Inmate No. 54460-097). We are hying to schedule a call to discuss an m gent legal matter with him. We called the facility this morning, but no one is answering the phone.

We would appreciate any assistance you can provide. You can reach me at this email address or on

my cell phone,

If I am unavailable, you can also reach my colleagues (copied here):

Christopher Lee at

and Naeun Rim at

Thank you.

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110
3
16

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 17 of 34 Page ID #:753
E: jthreatt@birdmarella .com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Ange les, Californ ia 90067-2561 www.BirdMarella.com
4
17

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 18 of 34 Page ID #:754

From: To: Subject: Date:

LOX/Legal Svcs~ JimmvThrP.att RE: Thursday,May 14, 2020 7:57:59 AM

Aft er speak ing with our BOP Attorney, a 15 min u te legal ca l l has been approved for you and your cl ien t .

A Unit Team member wi l l be contacting se t up a lega l cal l.

you in the near future to

Thank you for your patience cha l leng in g ti me .

and understanding

during this

Ms. Morales

>>> On 5/13/2020at 1:30 PM,Jimmy Threatt <jth reatt@birdmarella.com> wrote:
This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis .

Jimmy Threatt Associate
T: 310 .201.2100 F: 310 .201.2110 E: jt hreatt@birdma rella.com Bird,Marella, Boxer,Wolpert, Nessim, Drooks,Lincenberg& Rhow,P.C. 1875 Century Park East, 23r d Floor Los Ange les, Califo rni a 90067 -2561 www.BirdMarella.com

From:LOX/Legal Svcs~ <L0X/ Lega1Svcs~@bop.gov> Sent:Wednesday, May 13, 2020 12:5 7 PM To:Jimmy Th reatt <jth reatt@birdmarella .com > Subject:RE: Request Legal Call with
Dueto lack of information regarding the urgencyof your request, your request is being sent to the BOP Legal Office for further review and approval. Pleasebe advised this may delay your request for a Legal Call. >>> On 5/12/2020at 2:24 PM,Jimmy Threatt <jth reatt@birdmarella.com> wrote:
Thank you, Ms . Morales. To respond to your questions: 1) The matter is urgent and we need to speak with as soon as possible. It cann ot wait until the facility comes off the enhanced
18

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 19 of 34 Page ID #:755

mitigation measm es. 2) We do have wide windows of availability; we can make any time work. 3) We understand and will respect the 15 minute time limit.

As a reminder, I can be reached at

, and my colleagues can also be

reached on their cell phones (Christopher Lee at

and Naeun Rim at

).

Jimmy Threatt
Associate T: 310.20 1.2100 F: 310 .201.2110 E: jt hreatt@ birdma rella.com
Bird,Marella, Boxer,Wolpert, Nessim, Drooks,Lincenberg& Rhow,P.C. 1875 Century Park East, 23rd Floor Los Angeles, Califo rnia 90067 -256 1 www.BirdMarella.com

From:LOX/Legal Svcs~ <L0X/Lega1Svcs~@bop.gov > Sent:Tuesday, May 12, 2020 1:38 PM To:Jimmy Threatt <jthreatt@birdmare lla.com > Cc:Christ op her J. Lee <clee@birdma rella.com >; Naeun Rim <orim@birdmarella Subject:Re: Request Legal Call w ith ,

com >

Good Morning ,

I have been asked t o evaluate your request f or a le gal ca l l wi th the above - re f erenced in ma te /you r client .

Inmate l egal calls usually go thr ough the Unit Team, but

our COVI D- 19 situation

has prompted enhanced mitigati on

measures which has s ta f f f ocusing on inmate management

and enhanced sanitation . In shor t, FCC Lompoc is not

under normal ope rati on , and with matters li ke these, we

wan t t o faci l itate legal access while balancing public

health safety is sues .

As FCC Lompoc is cu rrently in the midst of enhanced

mitigation

measures t o address our COVID- 19 situation ,

such as restricting

inmate movement , I need to weigh the

necessity of the request/call

against the goals of our

current measures . Also, inmates at FCC Lompoc cu rrently

have access to TRULINCS (Email) and phone ca ll s . The

inmate can place you on his phone li st and email

account . Additionally , they re ceive legal mail dai ly .

We provide an occas i onal inmate attorney cal l when the

19

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 20 of 34 Page ID #:756

inmate demonstrates

that communication with attorneys by

correspondence,

visiting,

or norm~l telephone use is not

adequate, and when the inmate or inmate ' s attorney can

demonstrate an imminent court deadline . Thus, we ' d like

to ask you the following questions :

1 . Urgency - can this call wait until we can come of f of

our enhanced mitigation

measures?

Is there an imminent

court deadline?

Are communication by other means not

adequate? While I am likel¥ to defer to a f ellow officer

of the court ' s representation

of urgency, I need to ask

as FCC Lompoc sta f f are currently

focused on active

inmate management and enhanced sanitation,

and minimizing

movement and maintaining

maximum separation

is critical

during this time ;

2 . Assuming urgency, do you have wide windows o f date and

time when you are willing to receive a call? For

example , Wed - Friday f rom 8 - 12 noon? As arranging a

call during this time will require moving an inmate f rom

a quarantined

or isolation

area/cell

to a staff office

with a phone , there is much coordination

that needs to

happen to ensure the safety of all concerned . Thus,

staff need maximum flexibility

on when they can actually

make the call;

3 . Can the call be of limited duration,

like 15 minutes?

As there are other urgent calls that need to be

accommodated , keeping the calls short is important to

facilitating

those are deemed necessary . Keep in mind

there is extensive disinfecting

that needs to happen of

the office and phone a f ter each is made .

Thank you for your patience

challenging

time .

and understanding

during this

Ms . Morales

>>> On 5/12/2020at 12:08 PM,Jimmy Threatt <jthreatt@birdmarella.com> wrote:

My fnm is counsel for

We

are hy ing to schedule a call to discuss an urgent legal matter with him. We

called the facility this morning, but no one is answering the phone.

We would appreciate any assistance you can provide. You can reach me at this

email address or on my cell phone,

. If I am unavailable, you can

also reach my colleagues (copied here): Christopher Lee at

and

NaeunRim at

Thank you.

Jimmy Threatt Associate
T: 310 .201.2100

20

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 21 of 34 Page ID #:757
F: 310 .201.2110 E: jt hreatt @birdma rella.com Bird,Marella, Boxer,Wolpert, Nessim, Drooks,Lincenberg& Rhow,P.C. 1875 Century Park East, 23rd Floor Los Angeles, Californ ia 90067 -2561 www.BirdMarella.com
21

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 22 of 34 Page ID #:758

From: Sent: To: Subject:

LOX/ Legal Svcs~ <L0 X/ Lega1Svcs~@bop .gov> Thursday, May 14, 2020 10:51 AM Jimmy Threatt Re: Request Legal Call w ith TERPOGOSYA N #772 71-112 (LOM)

A 15 mi nu t e lega l cal l has been app r oved f o r you and your c li ent .

A Unit Team member wi l l be contacting l egal ca l l .

you in t h e nea r f utu r e to set up a

Th ank you for your patience t i me .

and understanding

du ri ng t hi s c h a l leng i ng

Ms . Mora l es

> > > On 5/ 13/20 20 at 4:03 PM, Jimmy Threatt <j t hreatt @bird marella.com > w rote:
I am writin g to schedule a legal call with Vazgen Terpogosyan (Inmate No . 77271-112 ). This is a legal call regarding release options given the COVID crisis, and is urgent given that crisis.

We would appreciate any assistance you can provide . You can reach me at this email address or on my cell

phone ,

. Ifl am unavailable, you can also reach my colleagues (copied here): Christopher Lee

at

and Naeun Rim at

Thank you .

Jimmy Threatt
Associate T: 310 .201.2100 F: 310.201.2110 E:jthreatt@b irdmare lla.com
Bird, Marella, Boxer, Wolpert, Nessim,
Drooks, Lincenberg & Rhow, P.C.
1875 Century Park East, 23rd Floor Los Ange les, Californ ia 90067-2561 www.BirdMarella.com

1
22

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 23 of 34 Page ID #:759

From: Sent: To: Subject:

LOX/Legal Svcs~ <L0X/Lega 1Svcs~@bop .gov> Thursday, May 14, 2020 10:53 AM Jimmy Threatt Re: Request Legal Call w ith REED#27173-016 (LOM)

A 15 minute legal call has been approved f o r you and your client .

A Unit Team member will be contacting legal call .

you in the near future to set up a

Thank you for your patience time.

and understanding

during this challenging

Ms. Morales

> > > On 5/ 13/2020 at 4:07 PM, Jimmy Threatt <jthreat t @bird marella.com > w rote:
I am writing to schedule a legal call with Vincent Reed (Inmate No. 27173-016) . This is a legal call regarding release options given the COVID crisis , and is urgent given that crisis .

We would appreciate any assistance you can provide . You can reach me at this email address or on my cell

phone ,

. Ifl am unavailable, you can also reach my colleagues (copied here): Christopher Lee

a1

and Naeun Rim a1

Thank you .

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E:jthreatt@b irdmare lla.com
Bird, Marella, Boxer, Wolpert, Nessim,
Drooks, Lincenberg & Rhow, P.C.
1875 Century Park East, 23rd Floor Los Ange les, Californ ia 90067-2561 www.BirdMarella.com

1
23

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 24 of 34 Page ID #:760

u

From: Sent: To: Subject:

Jennifer Merkle <jmmerkle@bop.gov> Thursday, May 14, 2020 1:04 PM Jimmy Threatt Requests for Legal Calls with Clients / Prospective Clients at FCC Lompoc

Good afternoon,
I think you may recall we spoke on the phone about a legal call for inmate Ben the other day. I have now been assigned 13 of your requests to review. It has become apparent that some of the individuals that you seek to have a legal call with are represented by other counsel as to their release options; therefore, I will be assessing each of these requests individually.
In the meantime, please feel free to send any additional request to me directly for review.
I will be in touch as to each request separately.
Thank you, Jennifer
Jennifer M. Merkle Senior Attorney FCC Victorville PO Box 5400 Adelanto, CA 92301 Phone: 760-530-5440 Fax: 760-530-5103 jennifer.merkle@usdoj.gov jmmerkle@bop.gov
SENSITIVE/PRIVILEGED COMMUNICATION The information contained in this electronic message and any and all accompanying documents constitutes sensitive information. This information is the property of the U.S. Department of Justice. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received this message in error, please notify us immediately at the above number to make arrangements for its return to us.

1
24

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 25 of 34 Page ID #:761

u

From: Sent: To: Subject:

Jorge A. Garcia <jagarcia@bop.gov> Thursday, May 14, 2020 2:36 PM Jimmy Threatt RE: Request Legal Call with CARROR-TORRES #41928-069 (LOM)

Per our legal department, I am going to cancel the scheduled legal call the above client.
>>> Jimmy Threatt <jthreatt@birdmarella.com> 5/14/2020 10:00 AM >>>
Mr. Garcia,
Thank you for your email. Tuesday, May 19, at 9 am works. Please note that I should be called at . Let me know if I need to do anything else prior to the call.
I have also submitted requests for calls with the inmates listed below, who are also housed at USP Lompoc. Those calls have not been scheduled yet, though the requests pertaining to Brown and have also been approved.
1) Andre Brown, 54460-097 2) 3) Vincent Reed, 27173-016 4) Vazgen Terpogosyan, 77271-112 5) Felix Samuel Garcia, 46693-298 6) Shawn Fears, 34182-060

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067‐2561 www.BirdMarella.com

From: Jorge A. Garcia <jagarcia@bop.gov> Sent: Thursday, May 14, 2020 8:43 AM To: Jimmy Threatt <jthreatt@birdmarella.com> Subject: RE: Request Legal Call with CARROR‐TORRES #41928‐069 (LOM)
Good morning Sir or Mam,
1
25

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 26 of 34 Page ID #:762
I ' ve been tasked t o se t up a lega l cal l wit h you r c l ient . Due to the h i gh volume o f r equested legal calls , I ' m cur r ently sc h edul i ng cal l s f or next week 05/ 1 8/20 t o 05/22/20 . The earl i es t slo t I have ava i lable wou l d be Tuesday 9 am . If tha t would work , please advise . I f not , please provide 3 da t es and t i mes nex t week you would l ike the call to take p l ace . Th ank You .

Aft er speak i ng wit h our BOP At torney , a 15 minu t e lega l cal l h as been approved f or you and your client .

A Unit Team member wi l l be contacting legal ca l l .

you in t h e near f utu r e to set up a

Th ank you for your patience t i me .

and understanding

du ri ng t h is c h a l leng i ng

Ms . Mora l es

>> > On 5/ 13/20 20 at 1:32 PM, Jimmy Threatt <> w rote : This is a legal call regardin g release options given the COVID crisis, and is m gent given that crisis.
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E:jthreatt@b irdmare lla.com
Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Ange les, Californ ia 90067-2561 www.BirdMarella.com
From: LOX/ Legal SvcsN<LOX/LegalSvcsN@bop.gov> Sent: Wedne sday, Ma y 13, 2020 12 :56 PM To: Jimmy Threatt <jthreatt@birdmare lla.com> Subject: RE: Request Legal Call w ith CARROR-TORRES#41928-069 (LOM)
Due to lack of informatio n regard ing the urgency of you r request, your request is being sent to the BOP Legal Off ice for further review and approval. Please be advised th is may delay you r request fo r a Leqal Call.
2
26

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 27 of 34 Page ID #:763
> > > On 5/12/2020 at 2:12 PM, Jimmy Th reatt <jthreatt@birdmarella.com > wrote :
Thank you, Ms . Morales . To respond to your questions:
1) The matter is urgent and we need to speak with Yonnedil CaITorToITesas soon as possible. It cannot wait until the facility comes off the enhanced miti gation measures.
2) We do have wide windows of availabi lity; we can make any time work. 3) We understand and will respect the 15 minute time limit.

As a reminder , I can be reached at phones (Christopher Lee at

, and my colleagues can also be reached on their cell

and Naeun Rim at

).

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com
Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Ange les, Californ ia 90067-2561 www.BirdMarella.com

From: LOX/Legal SvcsN<LOX/LegalSvcsN@bop.gov> Sent: Tuesday, May 12, 2020 1:40 PM To: Christopher J. Lee <clee@birdmare lla.com >; Jimmy Threatt <jthreatt@b irdmare lla.com >; Naeun Rim <nrim@birdmare lla.com > Subject: Re: Request Legal Call w ith CARROR-TORRES#41928-069 (LOM)

Good Morning,

I have been asked to evaluate your request

above -r eferenced inmate/your

client _

for a legal call with the

Inmate legal calls usually go through the Unit Team, but our COVID-1 9

situation

has prompted enhanced mitigation

measures which has sta f f

focusing on inmate management and enhanced sanitation _ In short, FCC

Lompoc is not under normal operation,

and with matters like these, we

want to facilitate

legal access while balancing public health safety

issues .

As FCC Lompoc is currently

in the midst of enhanced mitigation

measures to address our COVID- 19 situation,

such as restricting

inmate movement, I need to weigh the necessity of the request/call

against the goals of our current measures . Also, inmates at FCC

Lompoc currently

have access to TRULINCS (Email) and phone

3

27

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 28 of 34 Page ID #:764
ca l ls . Th e i n mate can p l ace you on h i s phone li st and emai l account . Additiona l ly , they r eceive l ega l ma il da il y .

We prov i de an occas i onal in mate a t to r ney cal l wh en t h e i nmate

de monstrates

th at commun i cation with a t to r neys by correspondence

,

v i siting , o r normal t e l ephone use i s not adequate , and when the

in mate or in mate ' s a t torney can demons tr ate an i mmi nent cou r t

dead l ine . Th us , we ' d l ike to ask you t he f o ll owing quest i ons :

1 . Urgency - can th i s ca l l wa it unti l we can co me of f o f ou r enhanced mi tigat i on measu r es? I s t here an i mmi nent cou r t deadl i ne? Ar e commun i cation by o t he r means not adequate? Whil e I a m li kely to defer t o a f e l low o f f icer of t he court ' s represen t at i on of u r gency , I need t o ask as FCC Lompoc staf f are cur r ently focused on act i ve i nma t e management and en h anced san it a ti on , and mi nim i z i ng move men t and ma i nta i ning maximum sepa r at i on i s cr i tica l dur i ng th i s t im e ;

2 . Assu ming urgency , do you have wi de wi ndows o f date and tim e when you are wi l li ng to r eceive a ca ll ? For examp l e , Wed - Fri day f ro m 8 12 noon? As arrang i ng a ca l l during th i s time wi ll requ i re moving an in mate f rom a quaran ti ned or i so l ation area/ce ll to a sta f f of f ice wi th a phone , there is much coo r dinat i on t h at needs to h appen to ensure the sa f e t y of a l l concerned . Thus , staf f need max i mum fl ex i b il ity on when t hey can actua l ly make t he ca ll;

3 . Can the cal l be o f l imited duration , l i ke 1 5 mi nutes? As a r e o t her u r gen t ca l ls t hat need t o be accommoda t ed , keep i ng ca l ls s h or t i s impo rt an t t o f ac il itat i ng t h ose are deemed necessary . Keep i n mi nd t here i s extensive d i s i nfecting that t o happen of th e o f fice and phone a f ter each i s made .

t her e t he
needs

Thank you f or your pat i ence and unde r s t and i ng dur i ng t h i s cha ll eng i ng tim e .

Ms . Mo r ales

> > > On 5/12/2020 at 12:09 PM, Jimmy Threatt <jthreatt@birdmare lla.com > w rote:
My furn is counsel for Yonnedil CaITor Ton es (Inmate No. 41928-69). We are hy ing to schedule a call to discuss an m gent legal matter with him. We called the facility this morning, but no one is answering the phone.

We would appreciate any assistance you can provide. You can reach me at this email address or on

my cell phone,

Ifl am unavailable, you can also reach my colleagues (copied here):

Christopher Lee at

and Naeun Rim at

Thank you.

Jimmy Threatt
4
28

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 29 of 34 Page ID #:765
Associate T: 310.201.2100 F: 310 .201 .2110 E:jthreatt@birdmare lla.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Centur y Park East, 23rd Floor Los Angeles, California 90067-2561 www.BirdMarella.com
s
29

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 30 of 34 Page ID #:766

u

From: Sent: To: Subject:

Jennifer Merkle <jmmerkle@bop.gov> Friday, May 15, 2020 1:51 PM Jimmy Threatt Re: Requests for Legal Calls with Clients / Prospective Clients at FCC Lompoc

Good afternoon,
I have had a chance to go through all of the emails and research the cases for each of the individuals you are seeking to speak with. Please call me at your convenience so we can over these and identify your specific needs.
Jennifer
Jennifer M. Merkle Senior Attorney FCC Victorville PO Box 5400 Adelanto, CA 92301 Phone: 760-530-5440 Fax: 760-530-5103 jennifer.merkle@usdoj.gov jmmerkle@bop.gov
SENSITIVE/PRIVILEGED COMMUNICATION The information contained in this electronic message and any and all accompanying documents constitutes sensitive information. This information is the property of the U.S. Department of Justice. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received this message in error, please notify us immediately at the above number to make arrangements for its return to us.
>>> Jennifer Merkle 5/14/2020 1:03 PM >>> Good afternoon,
I think you may recall we spoke on the phone about a legal call for inmate Ben the other day. I have now been assigned 13 of your requests to review. It has become apparent that some of the individuals that you seek to have a legal call with are represented by other counsel as to their release options; therefore, I will be assessing each of these requests individually.
In the meantime, please feel free to send any additional request to me directly for review.
I will be in touch as to each request separately.
Thank you, Jennifer
Jennifer M. Merkle Senior Attorney FCC Victorville PO Box 5400 Adelanto, CA 92301
1
30

Case 2:20-cv-04450-CBM-PVC
Phone: 760-530-5440 Fax: 760-530-5103 jennifer.merkle@usdoj.gov jmmerkle@bop.gov

Document 18-2 #:767

Filed 06/01/20

Page 31 of 34

Page ID

SENSITIVE/PRIVILEGED COMMUNICATION The information contained in this electronic message and any and all accompanying documents constitutes sensitive information. This information is the property of the U.S. Department of Justice. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received this message in error, please notify us immediately at the above number to make arrangements for its return to us.

2
31

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 32 of 34 Page ID #:768

From: To: Cc: Subject: Date:

Jimmy Threatt Jennifer Merkle Naeun Rim RE: Requests for Legal Calls with Clients / Prospective Clients at FCC Lompoc Tuesday, May 19, 2020 1:35:00 PM

Jennifer,

Just following up on the below. Thanks.

Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067-2561 www.BirdMarella.com

From: Jimmy Threatt Sent: Monday, May 18, 2020 1:37 PM To: Jennifer Merkle <jmmerkle@bop.gov> Cc: Naeun Rim <nrim@birdmarella.com> Subject: RE: Requests for Legal Calls with Clients / Prospective Clients at FCC Lompoc
Jennifer,
Thanks for following up. I’m free this afternoon and tomorrow to discuss our requests for legal calls. To confirm, you have purview over all our requests, which include inmates at FCI Terminal Island, USP Lompoc, and FCI Lompoc?
Relatedly, we filed two lawsuits over the weekend, one each against Lompoc and Terminal Island. Is BOP willing to accept service of those complaints and summonses via email?
Jimmy Threatt
Associate T: 310.201.2100 F: 310.201.2110 E: jthreatt@birdmarella.com Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C.
32

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 33 of 34 Page ID #:769
1875 Century Park East, 23rd Floor Los Angeles, California 90067-2561 www.BirdMarella.com
From: Jennifer Merkle <jmmerkle@bop.gov> Sent: Friday, May 15, 2020 1:51 PM To: Jimmy Threatt <jthreatt@birdmarella.com> Subject: Re: Requests for Legal Calls with Clients / Prospective Clients at FCC Lompoc
Good afternoon,
I have had a chance to go through all of the emails and research the cases for each of the individuals you are seeking to speak with. Please call me at your convenience so we can over these and identify your specific needs.
Jennifer
Jennifer M. Merkle Senior Attorney FCC Victorville PO Box 5400 Adelanto, CA 92301 Phone: 760-530-5440 Fax: 760-530-5103 jennifer.merkle@usdoj.gov jmmerkle@bop.gov
SENSITIVE/PRIVILEGED COMMUNICATION The information contained in this electronic message and any and all accompanying documents constitutes sensitive information. This information is the property of the U.S. Department of Justice. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received this message in error, please notify us immediately at the above number to make arrangements for its return to us.
>>> Jennifer Merkle 5/14/2020 1:03 PM >>> Good afternoon,
I think you may recall we spoke on the phone about a legal call for inmate Ben the other day. I have now been assigned 13 of your requests to review. It has become apparent that some of the individuals that you seek to have a legal call with are represented by other counsel as to their release options; therefore, I will be assessing each of these requests individually.
In the meantime, please feel free to send any additional request to me directly for review.
I will be in touch as to each request separately.
Thank you, Jennifer
Jennifer M. Merkle Senior Attorney FCC Victorville
33

Case 2:20-cv-04450-CBM-PVC Document 18-2 Filed 06/01/20 Page 34 of 34 Page ID #:770
PO Box 5400 Adelanto, CA 92301 Phone: 760-530-5440 Fax: 760-530-5103 jennifer.merkle@usdoj.gov jmmerkle@bop.gov SENSITIVE/PRIVILEGED COMMUNICATION The information contained in this electronic message and any and all accompanying documents constitutes sensitive information. This information is the property of the U.S. Department of Justice. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received this message in error, please notify us immediately at the above number to make arrangements for its return to us.
34

Case 2:20-cv-04450-CBM-PVC Document 18-3 Filed 06/01/20 Page 1 of 9 Page ID #:771

1 Terry W. Bird – Bar No. 49038 tbird@birdmarella.com
2 Dorothy Wolpert – Bar No. 73213 dwolpert@birdmarella.com
3 *Naeun Rim – Bar No. 263558 nrim@birdmarella.com
4 Shoshana E. Bannett – Bar No. 241977 sbannett@birdmarella.com
5 Christopher J. Lee – Bar No. 322140 clee@birdmarella.com
6 Jimmy Threatt – Bar No. 325317 jthreatt@birdmarella.com
7 BIRD, MARELLA, BOXER, WOLPERT, NESSIM, DROOKS,
8 LINCENBERG & RHOW, P.C. 1875 Century Park East, 23rd Floor
9 Los Angeles, California 90067-2561 Telephone: (310) 201-2100
10 Facsimile: (310) 201-2110

11 Peter J. Eliasberg – Bar No. 189110 peliasberg@aclusocal.org
12 Peter Bibring – Bar No. 223981 pbibring@aclusocal.org
13 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
14 1313 West 8th Street Los Angeles, CA 90017
15 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
16 Attorneys for Plaintiff-Petitioners
17

Donald Specter – Bar No. 83925 dspecter@prisonlaw.com
Sara Norman – Bar No. 189536 snorman@prisonlaw.com
PRISON LAW OFFICE 1917 Fifth Street Berkeley, California 94710 Telephone: (510) 280-2621 Facsimile: (510) 280-2704

18

UNITED STATES DISTRICT COURT

19

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

20 YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL
21 GARCIA; ANDRE BROWN; and SHAWN L. FEARS, individually and
22 on behalf of all others similarly situated,

23

Plaintiff-Petitioners,

24

vs.

25 LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL
26 CARVAJAL, in his capacity as Director of the Bureau of Prisons,
27 Defendant-Respondents.
28

CASE NO. 2:20-cv-04450-CBM-PVCx [PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION Filed Concurrently with Declaration of Naeun Rim; Declaration of Jimmy Threatt; and Proposed Order Hon. Consuelo B. Marshall, Crtrm 8B

TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINA RY INJUNCTION

Case 2:20-cv-04450-CBM-PVC Document 18-3 Filed 06/01/20 Page 2 of 9 Page ID #:772

1

Pursuant to Federal Rules of Civil Procedure Rule 65 and Central District

2 Local Rule 65, Plaintiff-Petitioners (“Petitioners”) Yonnedil Carror Torres, Vincent

3 Reed, Felix Samuel Garcia, Andre Brown, and Shawn L. Fears, individually and on

4 behalf of all others similarly situated, submitted an ex parte application, with notice,

5 seeking a temporary restraining order that (1) establishes a court-supervised

6 evaluation process that allows for the immediate transfer or home confinement of

7 prisoners at FCI Lompoc and USP Lompoc (collectively “Lompoc”), until enough

8 people have been released to make the facilities safe, and (2) requires Defendant-

9 Respondents (“Respondents”) Louis Milusnic, Warden of Lompoc, and Michael

10 Carvajal to adopt and implement policies that, at minimum, adhere to CDC guidance

11 regarding prevention and treatment of COVID-19 in detention facilities.

12

After consideration of Petitioners’ application, the memorandum of points

13 and authorities, declarations, and evidence in support thereof, and the entire records,

14 the Court hereby GRANTS Petitioners’ application for temporary restraining order

15 and ORDERS Respondents to show cause why a preliminary injunction should not

16 issue.

17

The Court finds that Petitions have demonstrated (1) the likelihood of

18 immediate and irreparable harm to the lives and well-being of Lompoc prisoners

19 based on Respondents’ failure to protect them from the spread of COVID-19 and

20 failure to provide adequate medical care and monitoring for prisoners with

21 suspected and confirmed cases of COVID-19; (2) the law and facts clearly favor

22 Petitioners, and they are likely to succeed on the merits; (3), on balance, the equities

23 tip in Petitioner’s favor; and (4) the injunctive relief requested here is in the public

24 interest.

25

TEMPORARY RESTRAINING ORDER

26

Accordingly, pending hearing on the Order to Show Cause re: Preliminary

27 Injunction, it is hereby ORDERED that:

28

2
TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINA RY INJUNCTION

Case 2:20-cv-04450-CBM-PVC Document 18-3 Filed 06/01/20 Page 3 of 9 Page ID #:773

1

Population and Facilities

2

(a) Respondents shall within 48 hours compile and file (1) under

3 seal a list of all prisoners that specifically identifies which prisoners are over age 50

4 and/or suffer from an underlying health condition that put them at high risk of

5 serious illness from COVID-19 according to the CDC (together the “medically

6 vulnerable prisoners”); and (2) a description of the process used to compile the list,

7 including identifying the database(s) searched;

8

(b) Respondents shall within 48 hours provide diagrams of the

9 facilities at Lompoc, with reasonably accurate measurements of the units; provide

10 information on the number of toilets, showers and sinks available in each unit, and

11 reasonably describe the type of beds available in the unit (cot, bunkbed, etc.);

12

Accelerated Consideration for Home Confinement or Compassionate

13

Release

14

(c) Respondents shall within 48 hours implement a process that

15 makes full and speedy use of the home confinement authority under 18 U.S.C. §

16 3624(b) and the CARES Act by (a) prioritizing for review for home confinement all

17 medically vulnerable prisoners identified on the list (but ultimately considering all

18 prisoners) (b) assigning substantial weight in that review to the prisoner’s risk

19 factors for COVID-19 based on CDC guidance, (c) eliminating all requirements that

20 the prisoner have served some portion of his or her sentence to be eligible for

21 placement on home confinement, (d) eliminating as a categorical exclusion the

22 requirement that a “primary or prior offense” not be a violent offense; (e)

23 eliminating as a categorical exclusion the requirement that the prisoner be “without

24 incident reports in the past 12 months (regardless of severity level)”; (f) modifying

25 any requirement that a person approved for home confinement be quarantined at the

26 facility for 14 days to allow for immediate release to home confinement for those

27 prisoners as to whom Respondents verify, after reasonable inquiry, that the prisoner

28 is able to self-isolate for the same period in the home confinement setting;

3
TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINA RY INJUNCTION

Case 2:20-cv-04450-CBM-PVC Document 18-3 Filed 06/01/20 Page 4 of 9 Page ID #:774

1

(d) Respondents shall within 48 hours, notify prisoners that they are

2 being considered for home confinement and institute a process, including free

3 telephone calls or emails to their families, by which prisoners can provide

4 Respondents with a plan for release to home confinement, including any information

5 about their ability to quarantine for 14 days upon release;

6

(e) Respondents shall within 5 days, implement a process by which

7 prisoners who make a request for compassionate release based on COVID-19

8 receive notice of either referral or denial within 5 days;

9

(f) Respondents shall within 5 days, provide written notice of (a)

10 either a referral of the matter in writing with recommendation of approval of the

11 request or (b) denial of the request, together with the appropriate appeal form to

12 each prisoner identified who had made a written request for compassionate relief

13 based on COVID-19 but has not yet received a decision;

14

(g) Respondents shall within 5 days, file a statement on the docket

15 explaining whether and how the criteria in the BOP’s Program Statement governing

16 compassionate release have been updated to take account of the COVID-19 crisis,

17 and, if they have not been, showing cause why the Court should not require the

18 Warden to promulgate revised compassionate release criteria for use at Lompoc that

19 take full and appropriate account of the threat posed by COVID-19 to medically

20 vulnerable prisoner;

21

(h) Respondents shall within five days, provide to the Court and

22 Petitioners’ counsel a list of all prisoners considered to date under the home

23 confinement process, the results of that process, and for each denial of home

24 confinement to a medically vulnerable prisoner, provide an individualized

25 explanation of the denial with at least a brief description of the factual basis for any

26 factors deemed to outweigh the danger to the prisoner from COVID-19;

27

(i) Respondents shall within 7 days, provide to the Court and

28 Petitioners’ counsel an updated list of all prisoners considered to date under the

4
TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINA RY INJUNCTION

Case 2:20-cv-04450-CBM-PVC Document 18-3 Filed 06/01/20 Page 5 of 9 Page ID #:775

1 home confinement process, the results of that process, and for each denial of home

2 confinement to a medically vulnerable prisoner, provide an individualized

3 explanation of the denial with at least a brief description of the factual basis for any

4 factors deemed to outweigh the danger to the prisoner from COVID-19;

5

(j) Respondents shall within 10 days, complete review of the home

6 confinement process and approve or deny each Lompoc prisoner home confinement;

7

(k) Respondents shall within 10 days, provide to the Court and

8 Petitioners’ counsel a final list of the results of the home confinement process for

9 each Lompoc prisoner and provide an individualized explanation of each denial of

10 home confinement to a prisoner identified to the Court as medically vulnerable,

11 including at least a brief description of the factual basis for any factors deemed to

12 outweigh the danger to the prisoner from COVID-19;

13

Implement Preventive Measures Against COVID-19

14

(l) Respondents shall provide adequate spacing of six feet or more

15 between people incarcerated, to the maximum extent possible, so that social

16 distancing can be accomplished. Within five days of this Order, establish and put

17 into effect a policy suspending, to the extent possible, the use of multi-person cells

18 (i.e., with more than two individuals). All housing units utilized shall be configured

19 to permit social distancing, to the maximum extent possible. If dormitory-style

20 housing must be utilized, those areas shall be reconfigured to allow six-feet between

21 prisoner beds to the maximum extent possible. Respondents shall submit a report to

22 the Court and Petitioners’ counsel within ten days detailing (i) the policy put into

23 effect, (ii) the housing cells occupied, and (iii) the number of prisoners in each cell.

24 Respondents shall submit updated reports on a weekly basis.

25

(m) Respondents shall within five days, provide to the Court and

26 Petitioners’ counsel an assessment of how many prisoners can be housed in each

27 unit while strictly adhering to CDC physical distancing guidelines along with an

28 explanation of the process by which those numbers were determined;

5
TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINA RY INJUNCTION

Case 2:20-cv-04450-CBM-PVC Document 18-3 Filed 06/01/20 Page 6 of 9 Page ID #:776

1

(n) Respondents shall implement a policy designed to reduce

2 contacts between prisoners in all public places, including bathrooms and pill lines.

3 Respondents shall submit a report to the Court and Petitioners’ counsel within ten

4 days detailing the policy put into effect;

5

(o) Respondents shall within 24 hours, provide each cell and each

6 dormitory-style housing unit, at no cost, a supply of disinfectant hand wipes or

7 disinfectant products effective against the COVID-19 virus for daily cleanings. Any

8 disinfectant products shall be provided at the manufacturer’s required concentration

9 level and in sufficient quantities for prisoners to clean and disinfect the floor and all

10 surfaces of their housing unit. Either (1) disposable clothes to wipe surfaces shall be

11 provided, or (2) clean reusable rags shall be provided and replenished on a daily

12 basis;

13

(p) Respondents shall provide daily access to cleaning supplies at no

14 cost for prisoners to clean their cells, including showers, toilets, telephones, and

15 sinks. Supplies shall be disinfected before being shared between housing cells;

16

(q) Respondents shall require cleaning of any surface or area shared

17 by four (4) or more prisoners, for example tabletops, telephones, door handles,

18 television controls, equipment, and restroom fixtures. Surfaces and areas shall be

19 cleaned every hour from 7 a.m. to 10 p.m. with bleach-based cleaning agents;

20

(r) Respondents shall establish a protocolfor monitoring and

21 supervising the regular sanitization of housing units, common areas, and surfaces.

22 Provide guidance to correctional staff to provide them with the knowledge needed to

23 oversee and assure that cleaning is adequate and effective. Within five (5) business

24 days of this Order, Respondents shall submit a certified report to the Court

25 identifying the procedures implemented to carry out these directives.

26

(s) Respondents shall provide masks for all prisoners and staff

27 members. If cloth masks are provided, such masks must be laundered sufficiently

28 regularly that prisoners and staff members can wear a freshly laundered mask each

6
TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINA RY INJUNCTION

Case 2:20-cv-04450-CBM-PVC Document 18-3 Filed 06/01/20 Page 7 of 9 Page ID #:777

1 day. Users must be instructed on how to use the mask and the reasons for its use’

2

(t) Respondents shall require all Prison staff to wear personal

3 protective equipment, including masks and gloves, when interacting with any

4 person, distributing items to prisoners (e.g., mail and hygiene supplies), or when

5 touching surfaces in cells or common areas. Establish a system by which prisoners

6 can anonymously report any guards not wearing masks. Within five (5) days

7 business days of this Order, Respondents shall submit a certified report to the Court

8 identifying the procedures implemented to carry out these directives;

9

(u) Respondents shall ensure, to the fullest extent possible, that all

10 Prison staff wash their hands with soap and water or use hand sanitizer containing at

11 least 60% alcohol both before and after touching any person or any surface in cells

12 or common areas;

13

Reporting, Testing, and Isolation

14

(v) Respondents shall maintain a protocolthrough which an

15 incarcerated person may self-report symptoms of COVID-19 infection and to

16 evaluate those symptoms, including subjective symptom monitoring, and ensure that

17 each person who reports symptoms of COVID-19 is seen by medical staff within 8

18 hours of self-reporting. Within five (5) days business days of this Order,

19 Respondents shall submit a certified report to the Court identifying the procedures

20 implemented to carry out these directives;

21

(w) Respondents shall conduct immediate testing for anyone

22 displaying known symptoms of COVID-19 and submit a weekly list to the Court

23 and Petitioners’ counsel indicating (i) the number of tests performed that week (ii)

24 whether any prisoners or Prison staff have tested positive for coronavirus (iii)

25 number of current hospitalizations of prisoners from Lompoc (iv) deaths of Lompoc

26 prisoners that week and (v) population count;

27

(x) Respondents shall ensure that individuals identified as having

28 COVID-19, with symptoms of COVID-19, or having been exposed to COVID-19

7
TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINA RY INJUNCTION

Case 2:20-cv-04450-CBM-PVC Document 18-3 Filed 06/01/20 Page 8 of 9 Page ID #:778

1 receive adequate medical care, including but not limited to being seen daily by

2 medical staff and having access to doctors, and are properly quarantined in a non-

3 punitive setting, with continued access to showers, mental health services, reading

4 materials, phone and video calling with loved ones, communications with counsel,

5 and personal property (to the extent reasonable and necessary to the prisoner’s

6 physical and mental well-being). Such individuals shall remain in quarantine and

7 wear face masks and gloves when interacting with other individuals until they are no

8 longer at risk of infecting other people. Facemasks must be replaced at medically

9 appropriate intervals. Within three days of this order, Respondents shall submit a

10 certified report to the Court identifying quarantine protocol, protocols and procedure

11 for monitoring and providing care to prisoners diagnosed with COVID-19, and the

12 standards and procedures that will be used to determine when individuals are no

13 longer at risk of infecting other people. The report shall be reviewed by a court-

14 appointed medical expert for its effectiveness;

15

(y) Respondents shall train all staff regarding measures to identify

16 prisoners with COVID-19, measures to reduce transmission, and the Prison’s

17 policies and procedures during this crisis (including those measures contained in this

18 Order).

19

Communication with Counsel

20

(z) Respondents shall ensure that Petitioners’ counsel have the

21 ability to promptly and confidentially communicate with prisoners.

22

ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

23

Respondents are also hereby ORDERED TO SHOW CAUSE why

24 preliminary injunction shall not issue continuing the above Temporary Restraining

25 Order and is FURTHER ORDERED to appear before this Court in Courtroom 9C,

26 located at 350 West 1st Street, Los Angeles, CA 90012, on ______, 2020 at

27 ___:___a.m./p.m., or as soon thereafter as this matter may be heard. Petitioners

28 shall file any additional brief and supporting evidence for its requested motion for

8
TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINA RY INJUNCTION

Case 2:20-cv-04450-CBM-PVC Document 18-3 Filed 06/01/20 Page 9 of 9 Page ID #:779

1 preliminary injunction by ________, 2020; Respondents shall file their opposition to

2 the motion for preliminary injunction by _______, 2020, and Petitioners shall file

3 their reply brief by ___________, 2020

4

IT IS FURTHER ORDERED THAT:

5

1. This Temporary Restraining Order is effective immediately upon

6 issuance;

7

2. A copy of this Order shall be served on Respondents via email by no

8 later than June ____, 2020.

9

AND

10

3. Respondents shall file status reports regarding compliance with this

11 order each Monday until the hearing on the Order to Show Cause why preliminary

12 injunction should not issue.

13

IT IS SO ORDERED.

14 DATED:
15

16

17

Hon. Consuelo B. Marshall

18

United States District Judge

19

20

21

22

23

24

25

26

27

28

9
TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINA RY INJUNCTION

 Case 2:20-cv-04450-CBM-PVC Document 22 Filed 06/04/20 Page 1 of 14 Page ID #:788

1 Terry W. Bird – Bar No. 49038 tbird@birdmarella.com
2 Dorothy Wolpert – Bar No. 73213 dwolpert@birdmarella.com
3 *Naeun Rim – Bar No. 263558 nrim@birdmarella.com
4 Shoshana E. Bannett – Bar No. 241977 sbannett@birdmarella.com
5 Christopher J. Lee – Bar No. 322140 clee@birdmarella.com
6 Jimmy Threatt – Bar No. 325317 jthreatt@birdmarella.com
7 BIRD, MARELLA, BOXER, WOLPERT, NESSIM, DROOKS,
8 LINCENBERG & RHOW, P.C. 1875 Century Park East, 23rd Floor
9 Los Angeles, California 90067-2561 Telephone: (310) 201-2100
10 Facsimile: (310) 201-2110

11 Peter J. Eliasberg – Bar No. 189110 peliasberg@aclusocal.org
12 Peter Bibring – Bar No. 223981 pbibring@aclusocal.org
13 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
14 1313 West 8th Street Los Angeles, CA 90017
15 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
16 Attorneys for Plaintiff-Petitioners
17

Donald Specter – Bar No. 83925 dspecter@prisonlaw.com
Sara Norman – Bar No. 189536 snorman@prisonlaw.com
PRISON LAW OFFICE 1917 Fifth Street Berkeley, California 94710 Telephone: (510) 280-2621 Facsimile: (510) 280-2704

18

UNITED STATES DISTRICT COURT

19

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

20 YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL
21 GARCIA; ANDRE BROWN; and SHAWN L. FEARS, individually and
22 on behalf of all others similarly situated,

23

Plaintiff-Petitioners,

CASE NO. 2:20-cv-04450-CBM-PVCx PLAINTIFF-PETITIONERS’ NOTICE OF EX PARTE AND EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

24

vs.

25 LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL
26 CARVAJAL, in his capacity as Director of the Bureau of Prisons,
27 Defendant-Respondents.
28

[Filed concurrently with Declarations of Naeun Rim, Peter Eliasberg, and Donald Specter; (Proposed) Order] Assigned to Hon. Consuelo B. Marshall Courtroom 8B

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1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that Plaintiff-Petitioners (“Petitioners”) Yonnedil

3 Carror Torres, Vincent Reed, Felix Samuel Garcia, Andre Brown, and Shawn L.

4 Fears, individually and on behalf of all others similarly situated, apply, ex parte, for

5 an order provisionally certifying Petitioner’s claims as a class action, appointing

6 Petitioners as Class Representatives, and appointing Class Counsel, pursuant to the

7 Federal Rules of Civil Procedure 23(a) and 23(b)(2).

8

Petitioners propose the following class definition: All current and future

9 people in post-conviction custody at FCI Lompoc and USP Lompoc (collectively

10 “Lompoc”). If the Court disagrees with the above-stated definition for the Proposed

11 Class, Petitioners move for the Court to redefine or modify that definition, as such

12 determinations are within the Court’s discretion. Fed. R. Civ. P. 23(d)(1). Petitioners

13 also move for the appointment of Petitioners as representatives of the Proposed

14 Class. Petitioners further move for the ACLU of Southern California, the Prison

15 Law Office, and Bird Marella to be appointed as Class Counsel under the Federal

16 Rule of Civil Procedure 23(g).

17

This ex parte application is based upon this Notice, the Memorandum of

18 Points and Authorities, the Declarations of Naeun Rim, Peter Eliasberg and Donald

19 Specter, the filings in this action, the Proposed Order, which is being lodged in

20 accordance with Local Rule 7-20, and any and all evidence, argument, or other

21 matters that may be presented at the hearing. On May 21, 2020, Naeun Rim, counsel

22 for Petitioners, met and conferred with counsel for Respondents, Assistant United

23 States Attorneys Joanne Osinoff, David M. Harris, and Keith Staub, by telephone

24 and gave notice of this ex parte application. See Declaration of Naeun Rim (“Rim

25 Decl.”) at ¶ 8. Since then, Ms. Rim has made multiple attempts to find out whether

26 Respondents intend to oppose this ex parte application, but to date, Respondents’

27 counsel have not advised whether they would oppose. Id. Respondents opposed a

28 similar ex parte application in a similar class action filed against FCI Terminal

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Case 2:20-cv-04450-CBM-PVC Document 22 Filed 06/04/20 Page 3 of 14 Page ID #:790

1 Island titled, Wilson v. Ponce, et. al., U.S.D.C. Central District of California Case

2 No. 2:20-cv-04451-MWF-MRWx, and thus, Petitioners anticipate Respondents will

3 object.

4

Local Rule 5-4.3.4(a)(2)(i) Compliance: Filer attests that all other

5 signatories listed concur in the filing’s content and have authorized this filing.

6

7 DATED: June 4, 2020

Respectfully submitted,

8

Terry W. Bird

9

Dorothy Wolpert

10

Naeun Rim Shoshana E. Bannett

11

Christopher J. Lee

12

Jimmy Threatt Bird, Marella, Boxer, Wolpert, Nessim,

13

Drooks, Lincenberg & Rhow, P.C.

14

15

By:

/s/ Naeun Rim

16

Naeun Rim Attorneys for Plaintiff-Petitioners

17

18 DATED: June 4, 2020 19 20 21 22

Peter J. Eliasberg Peter Bibring ACLU Foundation of Southern California

By:

/s/ Peter Bibring

Peter Bibring Attorneys for Plaintiff-Petitioners

23 DATED: June 4, 2020
24
25
26
27

Donald Specter Sara Norman Prison Law Office

By:

/s/ Donald Specter

Donald Specter

Attorneys for Plaintiff-Petitioners

28

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1

APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

2 I. INTRODUCTION

3

Petitioners-Plaintiffs Yonnedil Carror Torres, Vincent Reed, Felix Samuel

4 Garcia, Andre Brown, and Shawn L. Fears (“Petitioners”) have moved for

5 preliminary relief under a temporary restraining order (Dkt. 18 [“TRO

6 Application”]) to prevent catastrophic harm to Lompoc prisoners, which is being

7 caused by Respondents Louis Milusnic and Michael Carvajal’s failure to take

8 adequate measures to address the COVID-19 pandemic. Specifically, Petitioners

9 have asked the Court (1) to put in place a process-based remedy that requires

10 Respondents to evaluate prisoners for home confinement and compassionate release

11 on an accelerated basis and to eliminate eligibility barriers that categorically exclude

12 most prisoners from consideration, even those who are non-violent and have a

13 viable release plan, and (2) to institute social distancing, sanitation, and medical

14 treatment policies that would bring prison conditions in compliance with the Eighth

15 Amendment.

16

In connection with the emergency relief requested, this ex parte application

17 seeks provisional certification of a class of all current and future prisoners in post-

18 conviction custody at Lompoc, all of whom would be eligible to seek immediate

19 home confinement or compassionate release or otherwise benefit from a reduced

20 population and improved prison conditions. As demonstrated by the death of Daniel

21 Vadnais, who died on the day that Petitioners filed their TRO Application and is the

22 fourth prisoner to die at Lompoc,1 ex parte consideration is necessary to avoid

23 substantial—and potentially fatal—harm. The emergency remedy requested by

24 Petitioners makes the provisional class analysis straightforward—Petitioners are not

25 asking the Court to make home confinement or compassionate release

26

27 1 https://www.independent.com/2020/06/02/senators-demand-answers-as-another28 lompoc-inmate-dies-of-covid/

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1 determinations for any individual prisoner. Rather, Petitioners are asking that the

2 Court set constitutional standards for Respondents to make those determinations and

3 to require Respondents to implement policies that improve Lompoc’s health and

4 safety conditions.

5

As described in Petitioner’s TRO Application (Dkt. 18), Lompoc is the site of

6 one of the worst COVID-19 outbreaks at any federal prison in the country. At least

7 1,066 prisoners at Lompoc have tested positive for COVID-19 over the course of a

8 mere two months. (Id. at 14.) Despite these sobering statistics, Respondents have

9 refused to follow Center for Disease Control (CDC) Guidance for Correctional

10 Facilities regarding social distancing, testing, tracing, quarantine and isolation of

11 suspected and confirmed cases, hygiene and medical care. Respondents have

12 repudiated the direction of Attorney General Barr to “immediately maximize

13 appropriate transfers to home confinement of all appropriate inmates.” For example,

14 as of April 20, 2020, only 24 out of over 2,500 prisoners at Lompoc were scheduled

15 to be released. (See Dkt. 18-1, Ex. Q.) It is clear that Respondents will not act to

16 protect prisoners from the substantial danger posed by COVID-19, which makes

17 preliminary relief imperative. Indeed, just yesterday, Respondent Carvajal appeared

18 at a Senate hearing and stated he did not know whether BOP was complying with a

19 federal court order to immediately evaluate medically vulnerable prisoners at FCI

20 Danbury for home confinement.2 Respondents’ brazen refusal to use their existing

21 statutory authority to reduce prison density and their subsequent failure to

22 implement effective social distancing measures and provide adequate medical

23 treatment amount to deliberate indifference to the health and safety of all who are

24 incarcerated at Lompoc.

25

Federal courts in the Ninth Circuit “routinely grant provisional class

26 certification for purposes of entering [preliminary] injunctive relief” under

27 28 2 Id.

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1 Rule 23(b)(2), when the plaintiffs establish that the four prerequisites in Rule 23(a)

2 are met. Carrillo v. Schneider Logistics, Inc., 2012 WL 556309, at *9 (C.D. Cal.

3 Jan. 31, 2012) (citing Baharona-Gomez v. Reno, 167 F.3d 1228, 1233 (9th Cir.

4 1999)); see also Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1042

5 (9th Cir. 2012) (holding district court did not abuse its discretion by provisionally

6 certifying class for purpose of entering preliminary injunction); Saravia v. Sessions,

7 280 F. Supp. 3d 1168, 1202 (N.D. Cal. 2017) (provisionally certifying class of

8 detained immigrant children), aff’d, Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th

9 Cir. 2018). Because Rule 23’s requirements are easily satisfied here, the Court

10 should provisionally certify the proposed class for purposes of the injunctive relief

11 Petitioners seek, defined as all current and future people in post-conviction

12 custody at Lompoc (the “Proposed Class”).

13 II. THE PROPOSED CLASS MEETS THE REQUIREMENTS OF

14

RULE 23(a).

15

A. Numerosity

16

Rule 23(a)(1) requires that the class be “so numerous that joinder of all

17 members is impracticable.” Fed. R. Civ. P. 23(a)(1). No specific number is needed,

18 but “forty or more members will generally satisfy the numerosity requirement.”

19 Arroyo v. United States Dep’t of Homeland Sec., 2019 WL 2912848, at *9 (C.D.

20 Cal. June 20, 2019); see also In re Cooper Cos. Inc. Sec. Litig., 254 F.R.D. 628, 634

21 (C.D. Cal. 2009). Numerosity is satisfied when “general knowledge and common

22 sense indicate that [the class] is large.” Inland Empire-Immigrant Youth Collective

23 v. Nielsen, 2018 WL 1061408, at *7 (C.D. Cal. Feb. 26, 2018) (quoting Cervantez v.

24 Celestica Corp., 253 F.R.D. 562, 569 (C.D. Cal. 2008)). To be impracticable,

25 joinder must be difficult or inconvenient but need not be impossible. Keegan v. Am.

26 Honda Motor Co., 284 F.R.D. 504, 522 (C.D. Cal. 2012).

27

The Proposed Class is sufficiently numerous. Petitioners seek relief on behalf

28 of all persons incarcerated at Lompoc. As of June 3, 2020, there are approximately

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1 2,626 prisoners at both Lompoc facilities (1,677 at USP Lompoc and 949 at FCI

2 Lompoc).3 That number standing alone satisfies the numerosity requirement. See

3 Arroyo, 2019 WL 2912848, at *9.

4

B. Commonality

5

Rule 23(a) next requires that there be “questions of law or fact common to the

6 class.” Fed. R. Civ. P. 23(a)(2). However, all questions of law and fact need not be

7 common to satisfy Rule 23(a). Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981

8 (9th Cir. 2011). Instead, commonality requires plaintiffs to demonstrate that their

9 claims “depend upon a common contention . . . [whose] truth or falsity will resolve

10 an issue that is central to the validity of each one of the claims in one stroke.” Wal-

11 Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Commonality can be satisfied

12 by a single common issue. See e.g., Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d

13 952, 957 (9th Cir. 2013) (Commonality “does not . . . mean that every question of

14 law or fact must be common to the class; all that Rule 23(a)(2) requires is a single

15 significant question of law or fact.”) (citations and internal quotation marks omitted)

16 (emphasis original).

17

Commonality is satisfied where a lawsuit challenges “systemic policies and

18 practices that allegedly expose inmates to a substantial risk of harm,” even where

19 there are “individual factual differences among class members.” Parsons v. Ryan,

20 754 F.3d 657, 681-682 (9th Cir. 2014) (collecting cases); Hernandez v. Lynch, 2016

21 WL 7116611, at *17 (C.D. Cal. Nov. 10, 2016), aff’d sub nom. Hernandez v.

22 Sessions, 872 F.3d 976 (9th Cir. 2017); see also Inland Empire-Immigrant Youth

23 Collective, 2018 WL 1061408, at *8. “The existence of shared legal issues with

24 divergent factual predicates is sufficient, as is a common core of salient facts

25 coupled with disparate legal remedies within the class.” Arroyo, 2019 WL 2912848,

26 at *9 (quoting Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003)).

27 3 https://www.bop.gov/locations/institutions/lom/;
28 https://www.bop.gov/locations/institutions/lof/ (last visited on June 3, 2020).

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1

Here, the Proposed Class meets the commonality requirement because all

2 class members are subject to the same practices: Respondents’ unwillingness or

3 inability to use their existing statutory authority to reduce prison density and to

4 institute effective social distancing, sanitation, and hygiene measures, or to provide

5 adequate care and monitoring of prisoners for COVID-19. While it is true that

6 COVID-19 poses a higher risk of serious illness or death for certain medically

7 vulnerable class members, it is also true that all prisoners are at risk.4 See Brown v.

8 Plata, 563 U.S. 493, 531-532 (2011) (“Even prisoners with no present physical or

9 mental illness may become afflicted, and all prisoners in California are at risk so

10 long as the State continues to provide inadequate care. Prisoners in the general

11 population will become sick, and will become members of the plaintiff classes, with

12 routine frequency; and overcrowding may prevent the timely diagnosis and care

13 necessary to provide effective treatment and to prevent further spread of disease.”)

14 For example, adults age 20-44 account for 20% of all hospitalizations and 12% of

15 ICU admissions.5 Even healthier people who contract COVID-19 are susceptible to

16 severe strokes.6 For some, the stroke is even the first symptom of COVID-19.7 In

17 fact, preliminary evidence suggests COVID-19 may render lasting organ damage in

18 even minimally symptomatic or completely asymptomatic patients.8

19 20 4 Dkt. 1 (Complaint), Ex. 7 at ¶¶ 6, 9 (Declaration of Dr. Shamsher Samra).
21 5 Id.

22 6 Id.

23 7 Coronavirus May Pose a New Risk to Younger Patients: Strokes, New York
24 Times (May 14, 2020), https://www.nytimes.com/2020/05/14/health/coronavirusstrokes.html
25
26 8 Id. (describing the way that COVID-19 can severely damage lung tissues, which in some case can cause a permanent loss of respiratory capacity, and target the heart
27 muscle causing a condition known as myocarditis, or inflammation of the heart
28 muscle, which can lead to rapid or abnormal heart rhythms in the short term and

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1

The claims brought by the named Petitioners on behalf of the Proposed Class

2 raise a number of common questions of fact and law, including but not limited to:

3

• Whether the criteria used by Respondents to make home confinement

4

determinations are unconstitutionally restrictive in the midst of a global

5

pandemic;

6

• Whether Respondents’ delay in evaluating compassionate release

7

requests is unconstitutional in the midst of a global pandemic;

8

• Whether the Proposed Class members are able to adequately social

9

distance at Lompoc at all times;

10

• Whether Lompoc failed to adopt and implement adequate testing,

11

tracing, quarantine and isolation protocols to reduce the spread of

12

COVID-19;

13

• Whether the Proposed Class members are living in sufficiently hygienic

14

living spaces to reduce the spread of COVID-19;

15

• Whether Lompoc provided prisoners and staff with appropriate

16

Personal Protective Equipment (“PPE”) and adequately enforced the

17

usage of PPE to reduce the spread of COVID-19;

18

• Whether Lompoc failed to provide adequate medical monitoring and

19

treatment related to COVID-19; and

20

• Whether the failure to institute social distancing subjects the Proposed

21

Class to a heightened risk of serious illness and death and violates the

22

Proposed Class members’ Eighth Amendment rights.

23

Other courts have provisionally certified similar classes. See e.g. Martinez-

24 Brooks v. Easter, 2020 WL 2405350, at *30-31 (D. Conn. May 12, 2020)

25 (provisionally certifying class of medically vulnerable prisoners at FCI Danbury);,

26 Wilson v. Williams, 2020 WL 1940882, at *6-8 (N.D. Ohio Apr. 22, 2020)

27 28 long-term heart failure that limits exercise tolerance and the ability to work).

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1 (provisionally certifying a class of medically vulnerable prisoners at FCI Elkton);

2 Cameron v. Bouchard, 2020 WL 2569868, at *19 (E.D. Mich. May 21, 2020)

3 (certifying a class of all current and future persons detained at Oakland County Jail,

4 as well as two subclasses prior to issuing preliminary injunction). As in each of

5 these cases, there is a single facility and one overarching issue—whether

6 Respondents have violated the proposed class members’ Eighth Amendment rights

7 by exposing them “to a serious communicable disease . . . that is more than very

8 likely to cause a serious illness.” See Castillo v, Barr, 2020 WL 1502864, at *5

9 (C.D. Cal. Mar. 27, 2020) (citing Helling v. McKinney, 509 U.S. 25, 32 (1993)).

10 That obviously presents a common issue amenable to class treatment.

11

C. Typicality

12

Federal Rule of Civil Procedure 23(a)(3) requires that “the claims . . . of the

13 representative parties [be] typical of the claims . . . of the class.” “[T]he typicality

14 requirement is permissive and requires only that the representative’s claims are

15 reasonably coextensive with those of absent class members; they need not be

16 substantially identical.” Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010)

17 (quotation marks and citation omitted).

18

“The test of typicality is ‘whether other members [of the class] have the same

19 or similar injury, whether the action is based on conduct which is not unique to the

20 named plaintiffs, and whether other class members have been injured by the same

21 course of conduct.’” Parsons, 754 F.3d at 685 (citation omitted). Typicality is

22 satisfied “when each class member’s claim arises from the same course of events,

23 and each class member makes similar legal arguments to prove the defendant’s

24 liability.” Rodriguez, 591 F.3d at 1124 (quotation and citation omitted).

25

The Proposed Class meets the typicality requirement because the named

26 Petitioners and Proposed Class members are all individuals who are incarcerated at

27 Lompoc and their claims all arise from the same failures to reduce prison density

28 and to implement appropriate preventative measures, monitoring, and treatment in

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1 response to COVID-19. (Dkt. No. 1 [Compl.] at ¶¶ 44-61, 100-101.) Finally, they

2 all will suffer the same harm: the significant and avoidable risk of serious illness or

3 death. Id.

4

D. Adequacy of Representation

5

Rule 23(a)(4) requires that the “representative parties will fairly and

6 adequately protect the interests of the class.” The adequacy inquiry asks: “(1) do the

7 named plaintiffs and their counsel have any conflicts of interest with other class

8 members and (2) will the named plaintiffs and their counsel prosecute the action

9 vigorously on behalf of the class?” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020

10 (9th Cir. 1998), overruled on other grounds by Wal-Mart Stores, Inc., 564 U.S. 338

11 (2011). This requirement “tend[s] to merge with the commonality and typicality

12 criteria of Rule 23(a).” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626, n.20

13 (1997) (internal quotation marks and citation omitted).

14

Both requirements are plainly satisfied here. First, there is no conflict

15 between the named Plaintiffs and other members of the Proposed Class. The named

16 Petitioners and other class members have the same injury and seek the same relief—

17 namely, put in place a structured, court-supervised process for Respondents’

18 immediate, individualized consideration of each prisoner’s suitability for release on

19 an accelerated schedule that is more focused on the critical factors of prisoner and

20 public safety than the current home confinement review process at Lompoc. Second,

21 the named Petitioners have confirmed their willingness to vigorously prosecute this

22 action, and their commitment to ensuring that all people facing the current

23 dangerous conditions in Lompoc benefit from this case just as they do. (See, e.g.,

24 Dkt. 1 [Compl.], Ex. 1 at ¶ 3, Ex. 2 at ¶ 4, Ex. 3 at ¶ 3.)

25

Moreover, the Proposed Class is represented by counsel from the American

26 Civil Liberties Union Foundation of Southern California, the Prison Law Office, and

27 Bird Marella. Counsel have extensive experience litigating class action lawsuits and

28 other complex cases in federal court, including litigating cases on behalf of

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1 prisoners. See Declarations of Naeun Rim, Peter Eliasberg, and Donald Specter.

2 Counsel will vigorously represent the Proposed Class.

3 III. THE PROPOSED CLASS MEETS THE REQUIREMENTS OF

4

RULE 23(b)(2).

5

In addition to satisfying the four prerequisites of Rule 23(a), the Proposed

6 Class qualifies for class treatment under Rule 23(b)(2). Rule 23(b)(2) requires

7 Petitioners establish that “the party opposing the class has acted or refused to act on

8 grounds that apply generally to the class, so that final injunctive relief or

9 corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.

10 R. Civ. P. 23(b)(2). “Rule [23](b)(2) was adopted in order to permit the prosecution

11 of civil rights actions.” Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998). As a

12 result, “‘[i]t is sufficient’ to meet the requirements of Rule 23(b)(2) [that] ‘class

13 members complain of a pattern or practice that is generally applicable to the class as

14 a whole.’” Rodriguez, 591 F.3d at 1126 (citations omitted) (holding that class of

15 noncitizens detained during immigration proceedings met Rule 23(b)(2) criteria

16 because “all class members [sought] the exact same relief as a matter of statutory or,

17 in the alternative, constitutional right”); id. at 1125 (“The fact that some class

18 members may have suffered no injury or different injuries from the challenged

19 practice does not prevent the class from meeting the requirements of Rule

20 23(b)(2).”).

21

The class Plaintiffs seek to certify is a paradigm Rule 23(b)(2) class. First,

22 Respondents are acting on grounds that are generally applicable to the class because

23 they subject all members of the Proposed Class to the same policies or practices—

24 namely, (1) Respondents have refused to use their authority under the CARES Act

25 to place people on home confinement in meaningful numbers or promptly evaluate

26 compassionate release requests, and (2)Lompoc’s policies do not allow for

27 appropriate social distancing, adequate testing, tracing, quarantining or isolating, or

28 adequately monitoring or treating prisoners to prevent the spread and severity of

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1 COVID-19. (See e.g., Dkt. No. 1 [Compl.] at ¶¶ 44-61, 100-101.) Second, the

2 injunctive relief requested by Petitioners is appropriate for class as a whole. The

3 class requests uniform relief—(1) the institution of a court-supervised process by

4 which all prisoners are considered for home release or confinement on an

5 accelerated basis and (2) an injunction mandating the adoption and implementation

6 of appropriate social distancing, hygiene, quarantine/isolation, and treatment

7 practices at Lompoc. (See id. at pp. 46-49.) All class members will benefit from the

8 requested relief, whether they are the ones released or not.

9

Because this remedy would afford the same relief to all members of the

10 Proposed Class, certification under Rule 23(b)(2) is appropriate. See Parsons, 754

11 F.3d at 689 (holding declaratory and injunctive relief proper as to class where

12 “every [member] . . . is allegedly suffering the same (or at least a similar) injury and

13 that injury can be alleviated for every class member by uniform changes in . . .

14 policy and practice”); Rodriguez, 591 F.3d at 1126 (certifying Rule 23(b)(2) class of

15 imprisoned immigrants where class sought uniform procedure for release, because

16 “relief from a single practice is requested by all class members”).

17 IV. CONCLUSION

18

For the foregoing reasons, Petitioners respectfully request that the Court

19 provisionally certify the Proposed Class.

20

Local Rule 5-4.3.4(a)(2)(i) Compliance: Filer attests that all other

21 signatories listed concur in the filing’s content and have authorized this filing.

22

23

24

25

26

27

28

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Case 2:20-cv-04450-CBM-PVC Document 22 Filed 06/04/20 Page 14 of 14 Page ID #:801

1 DATED: June 4, 2020 2 3 4 5 6 7 8 9 10 11 12 DATED: June 4, 2020 13 14 15 16 17 DATED: June 4, 2020 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
Terry W. Bird Dorothy Wolpert Naeun Rim Shoshana E. Bannett Christopher J. Lee Jimmy Threatt Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C.

By:

/s/ Naeun Rim

Naeun Rim

Attorneys for Plaintiff-Petitioners

Peter J. Eliasberg Peter Bibring ACLU Foundation of Southern California

By:

/s/ Peter Bibring

Peter Bibring Attorneys for Plaintiff-Petitioners

Donald Specter Sara Norman Prison Law Office

By:

/s/ Donald Specter

Donald Specter Attorneys for Plaintiff-Petitioners

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Case 2:20-cv-04450-CBM-PVC Document 22-1 Filed 06/04/20 Page 1 of 3 Page ID #:802

1 Terry W. Bird – Bar No. 49038

tbird@birdmarella.com

2

Dorothy Wolpert – Bar No. 73213 dwolpert@birdmarella.com

3 *Naeun Rim – Bar No. 263558

nrim@birdmarella.com

4 Shoshana E. Bannett – Bar No. 241977

sbannett@birdmarella.com

5

Christopher J. Lee – Bar No. 322140 clee@birdmarella.com

6 Jimmy Threatt – Bar No. 325317

jthreatt@birdmarella.com

7 BIRD, MARELLA, BOXER,

WOLPERT, NESSIM, DROOKS,

8

LINCENBERG & RHOW, P.C. 1875 Century Park East, 23rd Floor

9 Los Angeles, California 90067-2561

Telephone: (310) 201-2100

10 Facsimile: (310) 201-2110

11

Peter J. Eliasberg – Bar No. 189110 peliasberg@aclusocal.org

12 Peter Bibring – Bar No. 223981

pbibring@aclusocal.org

13 ACLU FOUNDATION OF

SOUTHERN CALIFORNIA

14

1313 West 8th Street Los Angeles, CA 90017

15 Telephone: (213) 977-9500

Facsimile: (213) 977-5297

16

Attorneys for Plaintiff-Petitioners

17

Donald Specter – Bar No. 83925 dspecter@prisonlaw.com
Sara Norman – Bar No. 189536 snorman@prisonlaw.com
PRISON LAW OFFICE 1917 Fifth Street Berkeley, California 94710 Telephone: (510) 280-2621 Facsimile: (510) 280-2704

18

UNITED STATES DISTRICT COURT

19

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

20

YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL

21

GARCIA; ANDRE BROWN; and SHAWN L. FEARS, individually and

22 on behalf of all others similarly situated,

23

Plaintiff-Petitioners,

24

vs.

25

LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL

26

CARVAJAL, in his capacity as Director of the Bureau of Prisons,

27

Defendant-Respondents.

28

CASE NO. 2:20-cv-04450-CBM-PVCx

DECLARATION OF DONALD

SPECTER IN SUPPORT OF

PLAINTIFF-PETITIONERS’ PPARROTVEISAIOPPNLAILCACTLIAOSNS FOR

EX

CERTIFICATION

[DPFaeircletleadracanotidnocnEusxrorPefanNrtltayeeAwunpitphRliiNmcaottaiioncdne;oPfetEexr Eliasberg; and (Proposed) Order]

Assigned to Hon. Consuelo B. Marshall Courtroom 8B

3652545
DECLARATION OF DONALD SPECTER IN SUPPORT OF PETITIONERS’ EX PARTE APPLICATION

Case 2:20-cv-04450-CBM-PVC Document 22-1 Filed 06/04/20 Page 2 of 3 Page ID #:803

1

DECLARATION OF DONALD SPECTER

2

I, Donald Specter, declare as follows:

3

1. I am the Executive Director of the Prison Law Office (“PLO”),

4 co-counsel of record to Plaintiff-Petitioners Yonnedil Carror Torres, Vincent Reed,

5 Felix Samuel Garcia, Andre Brown and Shawn L. Fears, individually and on behalf

6 of all others similarly situated (“Petitioners”) in this matter. I am an active member

7 of the Bar of the State of California. I have personal knowledge of the facts set forth

8 herein, which are known by me to be true and correct, and if called as a witness, I

9 could and would competently testify thereto.

10

2. The PLO Office has litigated numerous large-scale prisoner and parolee

11 class actions for more than 30 years, including two cases before the U.S. Supreme

12 Court in Brown v. Plata, 563 U.S. 493 (2011) (holding the court mandated

13 population limit for California prisons was necessary to remedy violations of

14 prisoners’ constitutional rights to adequate medical and mental health care) and Pa.

15 Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998) (unanimously holding the Americans

16 with Disabilities Act applies to state prisoners).

17

3. Other class action and impact litigation cases brought by the PLO

18 involving the rights of incarcerated people include: Gates v. Deukmejian, 987 F.2d

19 1392 (9th Cir. 1993) (conditions, psychiatric and medical care, and HIV

20 discrimination at California Medical Facility); Madrid v. Gomez, 889 F. Supp. 1146

21 (N.D. Cal. 1995) (conditions, medical and mental health care, guard brutality, due

22 process, personal safety, access to law libraries at Pelican Bay State Prison);

23 Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995) (statewide class action on

24 the adequacy of mental health care in California prisons); Clark v. California, 123

25 F.3d 1267 (9th Cir. 1997) (statewide class action on behalf of developmentally

26 disabled California prisoners under the Americans with Disabilities Act); Armstrong

27 v. Wilson, 124 F.3d 1019 (9th Cir. 1997) (statewide class action on behalf of

28 physically disabled California prisoners under the Americans with Disabilities Act

3652545

2

DECLARATION OF DONALD SPECTER IN SUPPORT OF PETITIONERS’ EX PARTE APPLICATION

Case 2:20-cv-04450-CBM-PVC Document 22-1 Filed 06/04/20 Page 3 of 3 Page ID #:804

1 and the Rehabilitation Act); Plata v. Brown, supra, (statewide class action

2 challenging inadequacy of California prisoner health care); Valdivia v. Davis, 206 F.

3 Supp. 2d 1068 (E.D. Cal. 2002) (statewide class action challenging the lack of due

4 process in California Board of Prison Terms parole revocation proceedings); Perez

5 v. Tilton, Case No. 3:05-cv-05241-JSW (N.D. Cal. 2005) (statewide class action

6 challenging inadequacy of California prisoner dental care); Parsons v. Ryan, 289

7 F.R.D. 513 (D. Ariz. 2013), aff'd, 754 F.3d 657 (9th Cir. 2014) (statewide class

8 action challenging inadequacy of Arizona Department of Correction’s medical,

9 dental, and mental health care, and conditions of confinement in isolation units);

10 Farrell v. Tilton, Case No. 3079344 (Alameda County Sup. Ct. 2003) (taxpayer

11 action to reform the conditions of confinement for wards under the jurisdiction of

12 the Division of Juvenile Justice [formerly California Youth Authority]).

13

4. The Prison Law Office also has litigated successfully multiple cases

14 challenging health care conditions in county jails in California, including: Hall v.

15 Cty. of Fresno, Case No. 1:11-cv-02047-LJO-BAM (E.D. Cal.) (Consent Decree,

16 Dkt. 112); Gray v. Cty. of Riverside, Case No. EDCV 13-0444-VAP (Opx) (C.D.

17 Cal) (Consent Decree, Dkt. 173); Chavez v. Cty. of Santa Clara, Case No. 1:15-cv-

18 05277-NJV (N.D. Cal.); and Turner v. Cty. of San Bernardino, Case No. 5:16-cv-

19 00355-VAP-DTB (C.D. Cal.) (pending); Plata v. Newsome, Case No. 3:01-cv-

20 01351-TEH (N.D. Cal. 2001).

21

5. PLO has dedicated and will continue to commit to dedicate substantial

22 resources to the representation of the Proposed Class.

23

I declare under penalty of perjury under the laws of the United States of

24 America that the foregoing is true and correct.

25

Executed June 4, 2020, at Sea Ranch, California.

26

27

/s/ Donald Specter

Donald Specter

28

3652545

3

DECLARATION OF DONALD SPECTER IN SUPPORT OF PETITIONERS’ EX PARTE APPLICATION

Case 2:20-cv-04450-CBM-PVC Document 22-2 Filed 06/04/20 Page 1 of 4 Page ID #:805

1 Terry W. Bird – Bar No. 49038 tbird@birdmarella.com
2 Dorothy Wolpert – Bar No. 73213 dwolpert@birdmarella.com
3 *Naeun Rim – Bar No. 263558 nrim@birdmarella.com
4 Shoshana E. Bannett – Bar No. 241977 sbannett@birdmarella.com
5 Christopher J. Lee – Bar No. 322140 clee@birdmarella.com
6 Jimmy Threatt – Bar No. 325317 jthreatt@birdmarella.com
7 BIRD, MARELLA, BOXER, WOLPERT, NESSIM, DROOKS,
8 LINCENBERG & RHOW, P.C. 1875 Century Park East, 23rd Floor
9 Los Angeles, California 90067-2561 Telephone: (310) 201-2100
10 Facsimile: (310) 201-2110

11 Peter J. Eliasberg – Bar No. 189110 peliasberg@aclusocal.org

Donald Specter – Bar No. 83925 dspecter@prisonlaw.com

12 Peter Bibring – Bar No. 223981 pbibring@aclusocal.org

Sara Norman – Bar No. 189536 snorman@prisonlaw.com

13 ACLU FOUNDATION OF SOUTHERN CALIFORNIA

PRISON LAW OFFICE 1917 Fifth Street

14 1313 West 8th Street Los Angeles, CA 90017

Berkeley, California 94710 Telephone: (510) 280-2621

15 Telephone: (213) 977-9500

Facsimile: (510) 280-2704

Facsimile: (213) 977-5297

16

Attorneys for Plaintiff-Petitioners

17

UNITED STATES DISTRICT COURT

18

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

19

YONNEDIL CARROR TORRES;

CASE NO. 2:20-cv-04450-CBM-PVCx

20 VINCENT REED; FELIX SAMUEL

GARCIA; ANDRE BROWN; and

DECLARATION OF NAEUN RIM

21 SHAWN L. FEARS, individually and IN SUPPORT OF PLAINTIFF-

on behalf of all others similarly situated, PETITIONERS’ EX PARTE

22

APPLICATION FOR

Plaintiff-Petitioners,

PROVISIONAL CLASS

23

CERTIFICATION

vs.

24

[Filed concurrently with Notice of Ex

LOUIS MILUSNIC, in his capacity as Parte and Ex Parte Application;

25 Warden of Lompoc; and MICHAEL

Declarations of Peter Eliasberg and

CARVAJAL, in his capacity as Director Donald Specter; and (Proposed) Order]

26 of the Bureau of Prisons,

27

Defendant-Respondents. Assigned to Hon. Consuelo B. Marshall

Courtroom 8B

28

3652539
DECLARATION OF NAEUN RIM IN SUPPORT OF PLAINTIFF-PETITIONERS’ EX PARTE APPLICATION

Case 2:20-cv-04450-CBM-PVC Document 22-2 Filed 06/04/20 Page 2 of 4 Page ID #:806

1

DECLARATION OF NAEUN RIM

2

I, Naeun Rim, declare as follows:

3

1. I am an active member of the Bar of the State of California and

4 attorney of record for Plaintiff-Petitioners (“Petitioners”) Yonnedil Carror Torres,

5 Vincent Reed, Felix Samuel Garcia, Andre Brown and Shawn L. Fears, individually

6 and on behalf of all others similarly situated, in this action. I make this declaration

7 in support of Plaintiff-Petitioners’ Ex Parte Application for Provisional Class

8 Certification. Except for those matters stated on information and belief, I make this

9 declaration based upon personal knowledge and, if called upon to do so, I could and

10 would so testify.

11

2. I am a principal with Bird, Marella, Boxer, Wolpert, Nessim, Drooks,

12 Lincenberg & Rhow, a professional corporation (“Bird Marella”), a litigation

13 boutique in Los Angeles, California, that has extensive experience litigating class

14 actions. I am counsel for Petitioners in this matter, along with my partners Terry

15 Bird and Dorothy Wolpert and my colleagues Shoshana Bannett, Christopher Jumin

16 Lee, and Jimmy Threatt.

17

3. I have been practicing law for approximately twelve years. For the past

18 four years, I have been an attorney at Bird Marella, where I litigate complex

19 criminal and civil matters in federal and state courts. I am currently representing

20 defendants in two class actions brought in this district. Prior to being at Bird

21 Marella, I was a Trial Deputy for four years at the Federal Public Defenders Office

22 in Los Angeles, where I represented federal criminal defendants in this district and

23 litigated several habeas matters. For three years, I was the attorney in charge of

24 overseeing Public Counsel’s Federal Pro Se Clinic, which was then located in the

25 Spring Street United States Courthouse at 312 N. Spring Street, Los Angeles,

26 California. At the Federal Pro Se Clinic, I advised and directly represent many

27 litigants in civil rights cases, Bivens actions, and Federal Tort Claims Act cases

28 brought against federal and state officials and agencies. I clerked for one year for

3652539

2

DECLARATION OF NAEUN RIM IN SUPPORT OF PLAINTIFF-PETITIONERS’ EX PARTE APPLICATION

Case 2:20-cv-04450-CBM-PVC Document 22-2 Filed 06/04/20 Page 3 of 4 Page ID #:807

1 the Honorable A. Howard Matz in the Central District of California.

2

4. Terry Bird and Dorothy Wolpert, two of the founding partners of Bird

3 Marella, each has more than 40 years of litigation experience, including experience

4 litigating class actions and compassionate release cases. Prior to forming Bird

5 Marella, Mr. Bird was an Assistant United States Attorney in the Central District of

6 California. Shoshana Bannett, Christopher Jumin Lee, and Jimmy Threatt are each

7 attorneys in my office who have experience litigating both criminal and civil cases.

8

5. Our co-counsel in this matter include Peter Eliasberg and Peter Bibring,

9 respectively the Chief Counsel and the Director of Police Practices/Senior Staff

10 Attorney of the American Civil Liberties Union Foundation of Southern California

11 (“ACLU SoCal”), and Donald Specter and Sara Norman, respectively the Executive

12 Director and Managing Attorney of the Prison Law Office (“PLO”).

13

6. ACLU SoCal is a non-profit organization whose mission is to defend

14 the fundamental rights outlined in the United States Constitution and the Bill of

15 Rights and has extensive experience litigating large-scale class actions involving

16 complex constitutional issues in the Southern California area. Further information

17 about ACLU SoCal’s experience is found in the Declaration of Peter Eliasberg.

18

7. PLO is a non-profit public interest law firm that provides free legal

19 services to adult and juvenile offenders to improve their conditions of confinement.

20 PLO provides direct services to thousands of prisoners and juveniles each year,

21 advocates for policy changes, and, if necessary, engages in impact litigation to

22 ensure that correctional institutions meet standards required by the U.S.

23 Constitution. PLO’s experience is elaborated on in the Declaration of Donald

24 Spector.

25

8. On May 21, 2020, I met and conferred with counsel for Respondents,

26 Assistant United States Attorneys Joanne Osinoff, David M. Harris, and Keith

27 Staub, by telephone and gave notice that Petitioners would be filing this ex parte

28 application for provisional class certification. Since then, I have sent several emails

3652539

3

DECLARATION OF NAEUN RIM IN SUPPORT OF PLAINTIFF-PETITIONERS’ EX PARTE APPLICATION

Case 2:20-cv-04450-CBM-PVC Document 22-2 Filed 06/04/20 Page 4 of 4 Page ID #:808

1 to counsel for Respondents to determine whether they intend to oppose this ex parte

2 application. As of the date of this declaration, they have not responded to my

3 inquiries.

4

I declare under penalty of perjury under the laws of the United States of

5 America that the foregoing is true and correct.

6

Executed June 4, 2020, at Los Angeles, California.

7

8

/s/ Naeun Rim

Naeun Rim

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3652539

4

DECLARATION OF NAEUN RIM IN SUPPORT OF PLAINTIFF-PETITIONERS’ EX PARTE APPLICATION

Case 2:20-cv-04450-CBM-PVC Document 22-3 Filed 06/04/20 Page 1 of 13 Page ID #:809

1 Terry W. Bird – Bar No. 49038 tbird@birdmarella.com
2 Dorothy Wolpert – Bar No. 73213 dwolpert@birdmarella.com
3 *Naeun Rim – Bar No. 263558 nrim@birdmarella.com
4 Shoshana E. Bannett – Bar No. 241977 sbannett@birdmarella.com
5 Christopher J. Lee – Bar No. 322140 clee@birdmarella.com
6 Jimmy Threatt – Bar No. 325317 jthreatt@birdmarella.com
7 BIRD, MARELLA, BOXER, WOLPERT, NESSIM, DROOKS,
8 LINCENBERG & RHOW, P.C. 1875 Century Park East, 23rd Floor
9 Los Angeles, California 90067-2561 Telephone: (310) 201-2100
10 Facsimile: (310) 201-2110

11 Peter J. Eliasberg – Bar No. 189110 peliasberg@aclusocal.org

Donald Specter – Bar No. 83925 dspecter@prisonlaw.com

12 Peter Bibring – Bar No. 223981 pbibring@aclusocal.org

Sara Norman – Bar No. 189536 snorman@prisonlaw.com

13 ACLU FOUNDATION OF SOUTHERN CALIFORNIA

PRISON LAW OFFICE 1917 Fifth Street

14 1313 West 8th Street Los Angeles, CA 90017

Berkeley, California 94710 Telephone: (510) 280-2621

15 Telephone: (213) 977-9500

Facsimile: (510) 280-2704

Facsimile: (213) 977-5297

16

Attorneys for Plaintiff-Petitioners

17

UNITED STATES DISTRICT COURT

18

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

19

YONNEDIL CARROR TORRES;

CASE NO. 2:20-cv-04450-CBM-PVCx

20 VINCENT REED; FELIX SAMUEL

GARCIA; ANDRE BROWN; and

DECLARATION OF PETER J.

21 SHAWN L. FEARS, individually and ELIASBERG IN SUPPORT OF

on behalf of all others similarly situated, PLAINTIFF-PETITIONERS’ EX

22

PARTE APPLICATION FOR

Plaintiff-Petitioners,

PROVISIONAL CLASS

23

CERTIFICATION

vs.

24

[Filed concurrently with Notice of Ex

LOUIS MILUSNIC, in his capacity as Parte and Ex Parte Application;

25 Warden of Lompoc; and MICHAEL

Declarations of Naeun Rim and Donald

CARVAJAL, in his capacity as Director Specter; and (Proposed) Order]

26 of the Bureau of Prisons,

Assigned to Hon. Consuelo B. Marshall

27

Defendant-Respondents. Courtroom 8B

28

3652544
DECLARATION OF PETER J. ELIASBERG IN SUPPORT OF PETITIONERS’ EX PARTE APPLICATION

Case 2:20-cv-04450-CBM-PVC Document 22-3 Filed 06/04/20 Page 2 of 13 Page ID #:810

1

DECLARATION OF PETER J. ELIASBERG

2

I, Peter J. Eliasberg, declare as follows:

3

1. I am an attorney at law admitted to practice before the courts of the

4 State of California and before this Court. I am the Chief Counsel of the American

5 Civil Liberties Union Foundation of Southern California (“ACLU-SC”), and am

6 co-counsel of record for Plaintiff-Petitioners (“Petitioners”) in this litigation. I make

7 this declaration in support of Petitioners’ Ex Parte Application for Provisional Class

8 Certification. If called as a witness, I would and could competently testify to the

9 facts stated herein, all of which are within my personal knowledge.

10

2. The ACLU-SC is committed to the vigorous, effective, and efficient

11 prosecution of the interests of Petitioners and the proposed class (the “Class”),

12 a commitment it has demonstrated in its representation of Petitioners in the

13 proceedings to date in this matter.

14

3. Based on my co-representation with the attorneys of the law firm Bird

15 Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow, P.C. (“Bird Marella”)

16 and the Prison Law Office (“PLO”) in this and other matters, it is my belief that the

17 attorneys of the ACLU, Bird Marella, and PLO are likewise committed to the

18 vigorous, effective, and efficient prosecution of this matter.

19

4. The ACLU-SC, Bird Marella, and PLO (collectively, “Petitioners’

20 counsel”) have been working for weeks on this matter. Prior to and since the filing

21 of the complaint in this action, Petitioners’ counsel has dedicated significant hours

22 to the investigation and research of Petitioners’ claims—including speaking with

23 Petitioners, other members of the Class, and witnesses to develop the factual record

24 and legal issues underlying this case, performing legal research about potential

25 claims and relief available to the Class, and drafting a lengthy and detailed

26 complaint, and ex parte application for a TRO and supporting documentation, as

27 well as this provisional class certification application. Through this work,

28 Petitioners’ counsel have built a strong, effective working relationship with the

3652544

2

DECLARATION OF PETER J. ELIASBERG IN SUPPORT OF PETITIONERS’ EX PARTE APPLICATION

Case 2:20-cv-04450-CBM-PVC Document 22-3 Filed 06/04/20 Page 3 of 13 Page ID #:811

1 named Petitioners and several other members of the proposed Class.

2

5. The ACLU-SC has decades of experience in litigating a broad variety

3 of civil rights cases, including prisoners’ rights cases. In addition, I have served as

4 lead counsel or co-lead counsel in numerous federal civil rights class actions in the

5 Central District of California, have been lead counsel in civil rights matters before

6 the United States Court of Appeals for the Ninth Circuit, the California Supreme

7 Court, and the United States Supreme Court, and have argued a case before the U.S.

8 Supreme Court. I have served as co-lead class counsel for all the inmates in Los

9 Angeles County Jails in Rutherford v. Baca, No. 75-04111 (C.D. Cal.), in

10 connection with issues concerning over-crowding, since 2009. Since 2012, I have

11 served as co-lead class counsel in Rosas v. Baca, No. 12-0428 (C.D. Cal.), in

12 connection with use of force inside the Los Angeles County jails.

13

6. My co-counsel Peter Bibring is a senior staff attorney and Director of

14 Police Practices at the ACLU-SC, where he has worked since 2006. In addition to

15 supervising the work around policing at ACLU-SC and coordinating advocacy

16 around policing at the three California ACLU affiliates, Mr. Bibring has litigated

17 numerous complex federal cases and class actions, primarily involving issues

18 around policing, and has been lead counsel and argued cases at the Ninth Circuit,

19 California Supreme Court and Central District, and various California courts,

20 including the California Supreme Court. Representative cases include Fazaga v.

21 Fed. Bureau of Investigation, 916 F.3d 1202 (9th Cir. 2019) (co-lead counsel) (class

22 action challenge to FBI’s use of undercover informants to collect information in

23 mosques without suspicion of criminal activity); Vasquez v. Rackauckus, 734 F.3d

24 1025 (9th Cir. 2013) (co-lead counsel) (class action due process challenge to

25 enforcement of gang injunctions); K.L. v. City of Glendale, No. CV 11-8484 (C.D.

26 Cal.) (co-lead counsel) (class action challenge to gang sweep in high school by

27 police that exclusively targeted Latino students, resulting in settlement requiring

28 changes to policies and training of four municipal agencies); Fitzgerald v. City of

3652544

3

DECLARATION OF PETER J. ELIASBERG IN SUPPORT OF PETITIONERS’ EX PARTE APPLICATION

Case 2:20-cv-04450-CBM-PVC Document 22-3 Filed 06/04/20 Page 4 of 13 Page ID #:812

1 Los Angeles, No. 03-01876 (C.D. Cal.) (class action challenge to Los Angeles

2 Police Department detention and search practices in the Skid Row area of Los

3 Angeles, resulting in settlement requiring changes in LAPD training on search and

4 detention); Trujillo v. City of Ontario, No. ED CV 04-1015 (C.D. Cal.) and No. 06-

5 55736 (9th Cir.) (class action on behalf of police officers subjected to covert video

6 surveillance in their station locker room settled on the first day of trial for more than

7 $2 million). In addition to his litigation experience, Mr. Bibring helped to develop

8 and for three years taught a Civil Rights Litigation Clinic at UCLA School of Law,

9 in which he provided classroom instruction on procedural and immunities issues

10 with federal civil rights actions, as well as instruction in legal skills including

11 interviews, depositions, negotiations, and close supervision of students in their work

12 on active civil rights cases. Before working at ACLU-SC, Mr. Bibring worked for

13 two years in plaintiff-side employment law, where he litigated class action

14 employment cases, and clerked for the Honorable Marilyn Hall Patel, then Chief

15 Judge of the United States District Court for the Northern District of California, and

16 the Honorable Pierre N. Leval on the United States Court of Appeals for the Second

17 Circuit.

18

7. The ACLU-SC has dedicated and will continue to commit substantial

19 resources to the representation of this Class.

20

8. Petitioners’ counsel have agreed to act jointly as class counsel, if the

21 Court so designates them.

22

9. A true and correct copy of my resume is attached hereto as Exhibit A.

23

I declare under penalty of perjury of the laws of the State of California that

24 the foregoing is true and correct.

25 / / /

26 / / /

27 / / /

28 / / /

3652544

4

DECLARATION OF PETER J. ELIASBERG IN SUPPORT OF PETITIONERS’ EX PARTE APPLICATION

Case 2:20-cv-04450-CBM-PVC Document 22-3 Filed 06/04/20 Page 5 of 13 Page ID #:813

1

I declare under penalty of perjury under the laws of the United States of

2 America that the foregoing is true and correct.

3

Executed June 4, 2020, at Los Angeles, California.

4

5

/s/ Peter J. Eliasberg

Peter J. Eliasberg

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3652544

5

DECLARATION OF PETER J. ELIASBERG IN SUPPORT OF PETITIONERS’ EX PARTE APPLICATION

Case 2:20-cv-04450-CBM-PVC Document 22-3 Filed 06/04/20 Page 6 of 13 Page ID #:814
EXHIBIT A

Case 2:20-cv-04450-CBM-PVC Document 22-3 Filed 06/04/20 Page 7 of 13 Page ID #:815 B 1

Case 2:20-cv-04450-CBM-PVC Document 22-3 Filed 06/04/20 Page 8 of 13 Page ID #:816 2

Case 2:20-cv-04450-CBM-PVC Document 22-3 Filed 06/04/20 Page 9 of 13 Page ID #:817
= B = B
B =
3

Case 2:20-cv-04450-CBM-PVC Document 22-3 Filed 06/04/20 Page 10 of 13 Page ID #:818

B

A

@

B
B B
4

Case 2:20-cv-04450-CBM-PVC Document 22-3 Filed 06/04/20 Page 11 of 13 Page ID #:819
B B
B B =
5

Case 2:20-cv-04450-CBM-PVC Document 22-3 Filed 06/04/20 Page 12 of 13 Page ID #:820
B B
B
6

Case 2:20-cv-04450-CBM-PVC Document 22-3 Filed 06/04/20 Page 13 of 13 Page ID #:821
7

Case 2:20-cv-04450-CBM-PVC Document 22-4 Filed 06/04/20 Page 1 of 4 Page ID #:822

1 Terry W. Bird – Bar No. 49038 tbird@birdmarella.com
2 Dorothy Wolpert – Bar No. 73213 dwolpert@birdmarella.com
3 *Naeun Rim – Bar No. 263558 nrim@birdmarella.com
4 Shoshana E. Bannett – Bar No. 241977 sbannett@birdmarella.com
5 Christopher J. Lee – Bar No. 322140 clee@birdmarella.com
6 Jimmy Threatt – Bar No. 325317 jthreatt@birdmarella.com
7 BIRD, MARELLA, BOXER, WOLPERT, NESSIM, DROOKS,
8 LINCENBERG & RHOW, P.C. 1875 Century Park East, 23rd Floor
9 Los Angeles, California 90067-2561 Telephone: (310) 201-2100
10 Facsimile: (310) 201-2110

11 Peter J. Eliasberg – Bar No. 189110 peliasberg@aclusocal.org
12 Peter Bibring – Bar No. 223981 pbibring@aclusocal.org
13 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
14 1313 West 8th Street Los Angeles, CA 90017
15 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
16 Attorneys for Plaintiff-Petitioners
17

Donald Specter – Bar No. 83925 dspecter@prisonlaw.com
Sara Norman – Bar No. 189536 snorman@prisonlaw.com
PRISON LAW OFFICE 1917 Fifth Street Berkeley, California 94710 Telephone: (510) 280-2621 Facsimile: (510) 280-2704

18

UNITED STATES DISTRICT COURT

19

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

20 YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL
21 GARCIA; ANDRE BROWN; and SHAWN L. FEARS, individually and
22 on behalf of all others similarly situated,

23

Plaintiff-Petitioners,

CASE NO. 2:20-cv-04450-CBM-PVCx [PROPOSED] ORDER GRANTING PLAINTIFF-PETITIONERS’ EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

24

vs.

25 LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL
26 CARVAJAL, in his capacity as Director of the Bureau of Prisons,
27 Defendant-Respondents.
28

[Filed concurrently with Notice of Ex Parte and Ex Parte Application; and Declarations of Naeun Rim, Peter Eliasberg, and Donald Specter] Assigned to Hon. Consuelo B. Marshall Courtroom 8B

3652547
ORDER GRANTING EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

Case 2:20-cv-04450-CBM-PVC Document 22-4 Filed 06/04/20 Page 2 of 4 Page ID #:823

1

Plaintiff-Petitioners’ ex parte application for an order (1) provisionally

2 certifying a class, as defined below, (2) appointing Petitioners as class representative

3 and (3) appointing class counsel (the “Ex Parte Application”) came on for a hearing

4 before the Court.

5

Upon reading and considering the supporting papers filed in connection with

6 the Ex Parte Application and the evidence presented in support thereof, the Court

7 finds that:

8

(a) under Rule 23(a)(1), the Proposed Class, defined as all current and

9

future people in post-conviction custody at FCI Lompoc and USP

10

Lompoc (collectively, the “Lompoc”), is sufficiently numerous in that

11

it consists of over 1,000 individuals;

12

(b) under Rule 23(a)(2), there exist common questions of law and fact as to

13

all class members, which include, among other things:

14

(i) whether the criteria used by Respondents to make home

15

confinement determinations are unconstitutionally restrictive in

16

the midst of a global pandemic;

17

(ii) whether Respondents’ delay in evaluating compassionate release

18

requests is unconstitutional in the midst of a global pandemic;

19

(iii) whether the Proposed Class members are able to adequately

20

social distance at Lompoc at all times;

21

(iv) whether Lompoc failed to adopt and implement adequate testing,

22

tracing, quarantine and isolation protocols to reduce the spread of

23

COVID-19;

24

(v) whether the Proposed Class members are living in sufficiently

25

hygienic living spaces to reduce the spread of COVID-19;

26

(vi) whether Lompoc provided prisoners and staff with appropriate

27

Personal Protective Equipment (“PPE”) and adequately enforced

28

the usage of PPE to reduce the spread of COVID-19;

3652547

2

ORDER GRANTING EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

Case 2:20-cv-04450-CBM-PVC Document 22-4 Filed 06/04/20 Page 3 of 4 Page ID #:824

1

(vii) whether Lompoc failed to provide adequate medical monitoring

2

and treatment related to COVID-19; and

3

(viii) whether the failure to institute social distancing subjects the

4

Proposed Class to a heightened risk of serious illness and death

5

and violates the Proposed Class members’ Eighth Amendment

6

rights;

7

(c) under Rule 23(a)(3), the claims of the Proposed Class representatives

8

are typical of the claims of all class members in that the Petitioners and

9

Proposed Class members are all individuals who are incarcerated at

10

Lompoc and their claims all arise from the same failure to implement

11

appropriate preventative measures, monitoring and treatment in

12

response to COVID-19, and they all will suffer the same harm: the

13

significant and avoidable risk of serious illness or death;

14

(d) under Rule 23(a)(4), the Proposed Class representatives have

15

demonstrated that each of them will fairly and adequately protect the

16

interests of the class;

17

(e) the proposed counsel for the class, the ACLU of Southern California,

18

the Prison Law Office, and the law firm of Bird Marella have

19

demonstrated that they are experienced in prosecuting class actions of

20

this nature and will adequately represent the interests of the class;

21

(f) under Rule 23(b)(2), the party opposing the class has acted or refused

22

to act on grounds that apply generally to the class so that final

23

injunctive relief is appropriate respecting the class as a whole, because

24

Respondents subject all members of the Proposed Class to the same

25

policies or practices—namely, Lompoc’s policies do not allow for

26

appropriate social distancing, adequate testing, tracing, quarantining or

27

isolating, or adequately monitoring or treating prisoners to prevent the

28

spread and severity of COVID-19, and the injunctive relief requested

3652547

3

ORDER GRANTING EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

Case 2:20-cv-04450-CBM-PVC Document 22-4 Filed 06/04/20 Page 4 of 4 Page ID #:825

1

by Petitioners is appropriate for class as a whole—(1) the institution of

2

a court-supervised process by which all prisoners are considered for

3

home release or confinement on an accelerated basis and (2) an

4

injunction mandating the adoption and implementation of appropriate

5

social distancing, hygiene, quarantine/isolation, and treatment practices

6

at Lompoc.

7

As good cause has been shown, IT IS HEREBY ORDERED THAT:

8

1. The above-styled action is hereby provisionally certified as a class

9 action as to all claims in the Complaint in this action pursuant to Rule 23(b)(2) of

10 the Federal Rules of Civil Procedure, for purposes of entering the Temporary

11 Restraining Order and/or preliminary injunction;

12

2. The “Class” of plaintiff-petitioners is defined as follows: all current and

13 future people in post-conviction custody at FCI Lompoc and USP Lompoc;

14

3. Plaintiff-Petitioners Yonnedil Carror Torres, Vincent Reed, Felix

15 Samuel Garcia, Andre Brown and Shawn L. Fears are appointed as representatives

16 of the Class; and

17

4. The ACLU of Southern California, the Prison Law Office, and Bird

18 Marella are appointed as Class Counsel for all purposes related to the Temporary

19 Restraining Order and/or preliminary injunction.

20

SO ORDERED.

21

22 DATED:

23

24

25

Hon. Consuelo B. Marshall United States District Judge

26

27

28

3652547

4

ORDER GRANTING EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

 Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 1 of 77 Page ID #:833

1 NICOLA T. HANNA

United States Attorney

2 DAVID M. HARRIS

Assistant United States Attorney

3 Chief, Civil Division

JOANNE S. OSINOFF

4 Assistant United States Attorney

Chief, General Civil Section

5 KEITH M. STAUB (Cal. Bar No. 137909)

CHUNG H. HAN (Cal. Bar No. 191757)

6 JASMIN YANG (Cal. Bar No. 255254)

DAMON A. THAYER (Cal. Bar No. 258821)

7 PAUL B. GREEN (Cal. Bar No. 300847)

Assistant United States Attorney

8

Federal Building, Suite 7516

300 North Los Angeles Street

9

Los Angeles, California 90012

Telephone: (213) 894-7423

10

Facsimile: (213) 894-7819

E-mail: Keith.Staub@usdoj.gov

11

Chung.Han@usdoj.gov

Jasmin.Yang@usdoj.gov

12

Damon.Thayer@usdoj.gov

Paul.Green@usdoj.gov

13

Attorneys for Respondents

14 Louis Milusnic and Michael Carvajal

15

UNITED STATES DISTRICT COURT

16

FOR THE CENTRAL DISTRICT OF CALIFORNIA

17

WESTERN DIVISION

18 YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL
19 GARCIA; ANDRE BROWN; and SHAWN L. FEARS, individually and
20 on behalf of all others similarly situated,
21 Plaintiff-Petitioners,
22 v.
23 LOUIS MILUSNIC, in his capacity as
24 Warden of Lompoc; and MICHAEL CARVAJAL, in his capacity as
25 Director of the Bureau of Prisons,

No. CV 20-4450-CBM-PVCx RESPONDENTS’ OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION [Declarations of James Engleman, Lawrence Cross, and Melissa Arnold, filed concurrently herewith]
Honorable Consuelo B. Marshall United States District Judge

26

Defendant-Respondents.

27

28

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 2 of 77 Page ID #:834

1 2 3 I. 4 II. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS

PAGE

INTRODUCTION ................................................................................................... 1 FACTUAL BACKGROUND.................................................................................. 5 A. FCC Lompoc’s Structure and Population ..................................................... 5 B. Efforts Taken by the BOP and FCC Lompoc To Address COVID-19......... 7
1. The BOP and FCC Lompoc’s Phased Action Plan to Respond to COVID-19.......................................................................................8 a. Phase I – Guidance From Health Authorities and Establishment of Task Force .................................................... 8 b. Phase II – Health Screening of Inmates and Staff and Social Distancing Measures...................................................... 8 c. Phase III Maximizing Telework and Inventorying Sanitation and Medical Supplies ............................................ 10 d. Phase IV – Further Mitigation Efforts....................................10 e. Phase V – Further Secure In Place and Social Distancing Measures ................................................................................. 10 (A) Sanitation Procedures ................................................... 11 (B) Further Inmate Education.............................................13 f. Phase VI – Continuation of Secure In Place and Social Distancing Measures, Testing, and Construction of Hospital Unit...........................................................................13 (A) Enhanced Mitigation Measures .................................... 14 (B) Testing of All Inmates at FCI Lompoc and Cohorting ...................................................................... 17 g. Phase VII – Current Operations ............................................. 19 h. Access to Legal Calls ............................................................. 20
2. FCC Lompoc’s Medical Response to COVID-19 ............................ 20 a. Implementation of Screening Procedures...............................20 b. As of March 30, 2020, No Sick Call Co-Pays Have Been Charged ................................................................................... 21 c. Masks, Education, and Mass Testing ..................................... 21

i

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 3 of 77 Page ID #:835

1

d. FCC Lompoc Has Sufficient Cleaning Supplies and PPE ..... 22

2

e. Isolation and Cohorting .......................................................... 23

3

f. FCC Lompoc Continues to Evolve Its Response to

4

COVID-19 According to Updated Guidance and Testing ..... 24

5

(A) Universal Testing at FCI Lompoc and Isolation and Quarantine Procedures........................................... 25

6

(B) Medical Care ................................................................ 26

7

C. Administrative Grievance Requirements .................................................... 27

8

D. Reduction in Sentence/Compassionate Release Procedures ....................... 28

9

E. Home Confinement under the CARES Act ................................................ 30

10

F. Petitioners’ Criminal Convictions ............................................................... 32

11

1. Carror-Torres Was Convicted for Carjacking with Serious

12

Bodily Injury (Sexual Assault) and Aiding and Abetting a

Violent Crime by Carrying a Firearm, and Sentenced to 20

13

Years Imprisonment..........................................................................33

14

2. Reed Was Convicted of Armed Bank Robbery, Armed

15

Carjacking, and Destroying Property, and Sentenced to 25 Years Imprisonment..........................................................................33

16

3. Garcia Was Convicted of Possession of Methamphetamine

17

with Intent to Distribute and Sentenced to Seven Years Imprisonment .................................................................................... 34

18

4. Brown Was Convicted of Conspiracy to Manufacture,

19

Distribute, and Possess with Intent to Distribute Phencyclidine

(PCP), and Illegally Possessing a Listed Chemical and

20

Distribution and Possession with Intent to Distribute PCP, and

Sentenced to 12.5 Years Imprisonment ............................................ 34

21

5. Fears Was Convicted of Conspiracy to Possess with Intent to

22

Distribute 15 Kilograms of Cocaine and, After Violating the

Terms of His Supervised Release, Sentenced to 32 Months

23

Imprisonment .................................................................................... 35

24

G. Petitioners’ Health Histories ....................................................................... 35

25

1. Carror-Torres Has Received Adequate Medical Care and Has

26

Not Reported Any COVID-19 Symptoms to Medical Staff.............35

27

2. Reed Has Recovered from COVID-19 and Received Medical Care ................................................................................................... 36

28

3. Garcia Has Tested Negative Three Times, Is Asymptomatic,

and Did Not Exhibit Any COVID-19 Symptoms.............................37

ii

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 4 of 77 Page ID #:836

1

4. Brown Tested Negative, Was Asymptomatic, and Did Not

Exhibit Any COVID-19 Symptoms..................................................38

2

5. Fears Is Asymptomatic and Did Not Exhibit COVID-19

3

Symptoms.......................................................................................... 38

4 III. TRO/PRELIMINARY INJUNCTION LEGAL STANDARD.............................38

5 IV. ARGUMENT.........................................................................................................40

6

A. Plaintiff Cannot Show a Likelihood of Success on the Merits ................... 40

7

1. The CARES Act Does Not Permit District Courts to Mandate

8

Home Confinement, and These Petitioners’ Claims Are Moot........40

9

2. Petitioners’ Claims Are Not Properly Brought as a Habeas Petition and Are Barred by the Prison Litigation Reform Act ......... 45

10 3. Petitioners Are Not Likely to Succeed on Their Eighth

11

Amendment Claims .......................................................................... 49

12

a. The Court Lacks Jurisdiction over Conditions-of-

Confinement Claims in a Habeas Action. .............................. 49 13

14

b. Petitioners Are Not Subject to an Unreasonable Risk of Harm. ...................................................................................... 51

15

c. Petitioners Have Not Shown the BOP is Acting With

16

Deliberate Indifference. .......................................................... 53

17

4. Petitioners Have Failed to Exhaust Administrative Remedies ......... 55

18

B. Petitioners Fail to Show Irreparable Harm..................................................59

19

C. The Balance of Equities and the Public Interest Do Not Favor

Petitioners .................................................................................................... 61

20 D. The Requested Relief Does Not Satisfy the Requirements of 18

21

U.S.C. § 3626 (a) and (b) ............................................................................ 63

22 V. CONCLUSION......................................................................................................65

23

24

25

26

27

28

iii

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 5 of 77 Page ID #:837

1

TABLE OF AUTHORITIES

2

PAGE

3 Cases

4 Allen v. McCurry,

5 449 U.S. 90 (1980) .........................................................................................................49
6 Alvarez v. Larose,
7 2020 WL 2315807 (S.D. Cal. May 9, 2020) ............................................4, 47, 48, 61, 63 8 Anderson v. United States, 9 612 F.2d 1112 (9th Cir. 1980)........................................................................................39
Badea v. Cox, 10
931 F.2d 573 (9th Cir. 1991)..........................................................................................50 11
Boumediene v. Bush, 12
553 U.S. 723 (2008) .......................................................................................................59 13 Brown v. Ives, 14 543 F. App’x 636 (9th Cir. 2013)...................................................................................41 15 Brown v. Plata,
16 563 U.S. 493 (2011) .......................................................................................................46
17 Brown v. Sanders,

18 2011 WL 4899919 n.3 (C.D. Cal. Sept. 1, 2011)...........................................................41

19 Chalk v. U.S. Dist. Court,

20 840 F.2d 701 (9th Cir. 1988)..........................................................................................39

21 City of Erie v. Pap’s A.M.,

22 529 U.S. 277 (2000) .......................................................................................................43

23 Crawford v. Bell,
24 599 F.2d 890 (9th Cir. 1979)..........................................................................................50
25 DaimlerChrysler Corp. v. Cuno, 26 547 U.S. 332 (2006) .................................................................................................43, 50 27 Dilley v. Gunn,
64 F.3d 1365 (9th Cir. 1995)....................................................................................44, 56 28

iv

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 6 of 77 Page ID #:838
1 Drakes Bay Oyster Co. v. Jewell, 2 747 F.3d 1073 (9th Cir. 2014)........................................................................................61 3 Farmer v. Brennan, 4 511 U.S. 825 (1994) .......................................................................3, 4, 51, 53, 54, 55, 56 5 Furando v. Ortiz, 6 2020 WL 1922357 (D.N.J. Apr. 21, 2020) ...................................................................... 4 7 Gilmore v. California, 8 220 F.3d 987 (9th Cir. 2000)....................................................................................46, 64 9 Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 10 415 U.S. 423 (1974) .......................................................................................................38 11 Grayson v. Rison, 12 945 F.2d 1064 (9th Cir. 1991)..........................................................................................2 13 Grinis v. Spaulding, 14 2020 WL 2300313 (D. Mass. May 8, 2020) ........................................................4, 42, 52 15 Helling v. McKinney, 16 509 U.S. 25 (1993) .............................................................................................51, 52, 53 17 Hines v. Youssef, 18 2015 WL 164215 (E.D. Cal. Jan. 13, 2015)...................................................................52 19 In re Gee, 20 815 F.2d 41 (7th Cir. 1987)............................................................................................42 21 Inmates of Occoquan v. Barry, 22 844 F.2d 828 (D.C. Cir. 1988) .......................................................................................46 23 INS v. St. Cyr, 24 533 U.S. 289 (2001) .......................................................................................................49 25 Jackson v. Hughes, 26 2010 WL 1737130 (C.D. Cal. Mar. 29, 2010) ...............................................................44 27 Jackson v. McIntosh, 28 90 F.3d 330 (9th Cir. 1996)............................................................................................54
v

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 7 of 77 Page ID #:839
1 Jones v. Bergami, 2 2020 WL 2575566 (W.D. Tex. May 21, 2020)..........................................................4, 40 3 Jones v. Bock, 4 549 U.S. 199 (2007) .......................................................................................................56 5 Lewis v. Cont’l Bank Corp., 6 494 U.S. 472 (1990) .......................................................................................................43 7 Livas v. Myers, 8 2020 WL 1939583 (W.D. La. Apr. 22, 2020)............................................................4, 47 9 Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 10 887 F. Supp. 1320 (N.D. Cal. 1995) ..............................................................................38 11 Lucero-Gonzalez v. Kline, 12 2020 WL 2987002 (D. Ariz. Jun. 2, 2020) ...................................................................... 4 13 Lujan v. Defenders of Wildlife, 14 504 U.S. 555 (1992) .......................................................................................................43 15 Maney v. Brown, 16 2020 WL 2839423 (D. Ore. Jun. 1, 2020)............................................................4, 40, 47 17 Marlyn Nutraceuticals v. Mucos Pharma GmbH & Co., 18 571 F.3d 873 (9th Cir. 2009)..........................................................................................39 19 Maronyan v. Toyota Motor Sales, USA, Inc., 20 658 F.3d 1038 (9th Cir. 2011)........................................................................................56 21 Mazurek v. Armstrong, 22 520 U.S. 968 (1997) .........................................................................................................5 23 McKune v. Lile, 24 536 U.S. 24 (2002) .........................................................................................................41 25 McQuillion v. Schwarzenegger, 26 369 F.3d 1091 (9th Cir. 2004)........................................................................................43 27 Meghrig v. KFC W., Inc., 28 516 U.S. 479 (1996) .......................................................................................................39
vi

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 8 of 77 Page ID #:840
1 Money v. Pritzker, 2 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020) .....................................4, 40, 44, 46, 54, 62 3 Munaf v. Geren, 4 553 U.S. 674 (2008) .......................................................................................................49 5 Murphy v. Hunt, 6 445 U.S. 478 (1982) .......................................................................................................44 7 Neal v. Shimoda, 8 131 F.3d 818 (9th Cir. 1997)............................................................................................2 9 Nellson v. Barnhart, 10 2020 WL 1890670 (D. Col. Apr. 16, 2020) .........................................................4, 54, 57 11 Nellson v. Barnhart, 12 2020 WL 3000961 (D. Colo. Jun. 4, 2020)................................................................4, 52 13 Nettles v. Grounds, 14 830 F.3d 922 (9th Cir. 2016)..............................................................................45, 46, 50 15 Nken v. Holder, 16 556 U.S. 418 (2009) .................................................................................................39, 61 17 Perez v. Beltran, 18 2010 WL 760395 (C.D. Cal. Feb. 25, 2010)..................................................................44 19 Plata v. Newsom, 20 2020 WL 1908776 (N.D. Cal. Apr. 17, 2020) ...........................................................4, 47 21 Porter v. Nussle, 22 534 U.S. 516 (2002) .................................................................................................56, 57 23 Preiser v. Newkirk, 24 422 U.S. 395 (1975) .......................................................................................................43 25 Preiser v. Rodriguez, 26 411 U.S. 475 (1973) .................................................................................................46, 50 27 Reeb v. Thomas, 28 636 F.3d 1224 (9th Cir. 2011)....................................................................................2, 41
vii

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 9 of 77 Page ID #:841
1 Reynolds v. Thomas, 2 603 F.3d 1144 (9th Cir. 2010)..........................................................................................2 3 Roman v. Wolf, 4 2020 WL 1952656 (C.D. Cal. Apr. 23, 2020)................................................................62 5 Ross v. Blake, 6 136 S. Ct. (2016) ...............................................................................................56, 57, 58 7 Sacora v. Thomas, 8 628 F.3d 1059 (9th Cir. 2010)........................................................................................41 9 Sanchez v. Vild, 10 891 F.2d 240 (9th Cir. 1989)..........................................................................................54 11 Shook v. Apker, 12 472 F. App’x 702 (9th Cir. 2012)...................................................................................50 13 Stanley v. Univ. of S. Cal., 14 13 F.3d 1313 (9th Cir. 1994)..........................................................................................39 15 Steffel v. Thompson, 16 415 U.S. 452 (1974) .......................................................................................................59 17 Tapia v. United States, 18 564 U.S. 319 (2011) .......................................................................................................41 19 Toguchi v. Chung, 20 391 F.3d 1051 (9th Cir. 2004)........................................................................................53 21 Turner v. Safley, 22 482 U.S. 78 (1987) .....................................................................................................4, 63 23 United States v. Ceballos, 24 671 F.3d 852 (9th Cir. 2011)..........................................................................................41 25 United States v. Dade, 26 2020 WL 2570354 (9th Cir. May 21, 2020) ............................................................48, 49 27 United States v. Doshi, 28 2020 WL 1527186 (E.D. Mich. Mar. 21, 2020) ............................................................40
viii

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 10 of 77 Page ID #:842
1 United States v. McCann, 2 2020 WL 1907089 (E.D. Ky. Apr. 17, 2020) ................................................................40 3 United States v. Pippen, 4 2020 WL 2602140 (W.D. Wash. May 20, 2020)...........................................................58 5 United States v. Read-Forbes, 6 2020 WL 1888856 (D. Kan. Apr. 16, 2020) ..................................................................40 7 Univ. of Tex. v. Camenisch, 8 451 U.S. 390 (1981) .......................................................................................................39 9 U.S. v. Connell, 10 2020 WL 231858 (N.D. Cal., May 8, 2020) ..................................................................58 11 Weinberger v. Romero-Barcelo, 12 456 U.S. 305 (1982) .........................................................................................................5 13 West v. Secretary of Dept. of Transp., 14 206 F.3d 920 (9th Cir. 2000)..........................................................................................43 15 Wilson v. Seiter, 16 501 U.S. 294 (1991) .......................................................................................................55 17 Wilson v. Williams, 18 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020)........................................................47, 48 19 Winter v. Natural Resources Defense Council, Inc., 20 555 U.S. 7 (2008) .................................................................................................4, 39, 59 21 Woodford v. Ngo, 22 548 U.S. 81 (2006) ...................................................................................................56, 57 23 Wragg v. Ortiz, 24 2020 WL 2745247 (D.N.J. May 27, 2020) ..........................................................4, 54, 55 25
Statutes 26 27 18 U.S.C. § 924.................................................................................................................32 28 18 U.S.C. § 2113(a) ..........................................................................................................33
ix

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 11 of 77 Page ID #:843
1 18 U.S.C. § 3143(b) ..........................................................................................................48
2 18 U.S.C. § 3582(c)(1)(A) ......................................................................................3, 29, 58
3 18 USC §§ 3621................................................................................................................41 4 18 U.S.C. § 3621(b) ..........................................................................................................41 5 18 U.S.C. § 3624.................................................................................................................1 6 18 U.S.C. § 3624(c)(6)(A) ................................................................................................41 7 18 U.S.C. § 3625...............................................................................................................59 8 18 U.S.C. § 3626...............................................................................................................63
18 U.S.C. § 3626(a) ....................................................................................................39, 63 9
18 U.S.C. § 3626(a)(1)......................................................................................................46 10
18 U.S.C. § 3626(a)(2)......................................................................................................62 11
18 U.S.C. § 3626(a)(3)(A) ..........................................................................................45, 49 12 18 U.S.C. § 3626(a)(3)(B) ............................................................................................2, 45 13 18 U.S.C. § 3626(g)(2)......................................................................................................46 14 18 U.S.C. § 4082(b) ..........................................................................................................41 15 18 U.S.C. §§ 3582.........................................................................................................4, 29 16 21 U.S.C. § 841(a)(1)..................................................................................................34, 35 17 28 U.S.C. § 2201...............................................................................................................59 18 28 U.S.C. § 2242...............................................................................................................32
19 28 U.S.C. § 2249...............................................................................................................33
20 42 U.S.C. § 1997e(a).....................................................................................................3, 56
21 Rules
22 Fed. R. Civ. P. 23(a)..........................................................................................................44
23
24 Regulations 25 28 C.F.R. § 542.13 ............................................................................................................28 26 28 C.F.R. § 542.14 ............................................................................................................28 27 28 C.F.R. § 542.14(d) .......................................................................................................28 28 28 C.F.R. § 542.15 ............................................................................................................28
x

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 12 of 77 Page ID #:844
1 28 C.F.R. § 542.15(a)........................................................................................................28 2 28 C.F.R. § 542.18 ............................................................................................4, 28, 57, 58 3 28 C.F.R. §§ 542.10 ....................................................................................................27, 56 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
xi

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 13 of 77 Page ID #:845

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Yonnedil Carror-Torres, Vincent Reed, Felix Samuel Garcia, Andre Brown, and

4 Shawn L. Fears (collectively, “Petitioners”) have been convicted of various federal

5 crimes (carjacking and serious bodily injury for sexual assault; armed bank robbery and

6 armed carjacking; possession of methamphetamine with intent to distribute; conspiracy

7 to manufacture, distribute, and possess with intent to distribute phencyclidine (PCP); and

8 conspiracy to possess with intent to distribute 15 kilograms of cocaine, respectively) and

9 are in the custody of the Federal Bureau of Prisons (“BOP”) for terms ranging from

10 approximately 2.5 to 25 years. They are currently housed within various facilities at the

11 Federal Correctional Complex in Lompoc, California (“FCC Lompoc”).

12

Petitioners move the Court ex parte to order Respondents, officials of the Federal

13 Bureau of Prisons (“BOP”), to release more prisoners to home confinement under the

14 Coronavirus, Aid, Relief, and Economic Security Act (“CARES Act”). Petitioners,

15 however, admit that the BOP has been doing just that. See ECF No. 18 at 16:5-6 (59

16 prisoners have been considered for release). Petitioners also cite the Attorney General’s

17 April 3, 2020, memorandum, which executed the provision of the CARES Act

18 expanding the BOP’s authority to designate an inmate to home confinement under 18

19 U.S.C. § 3624, arguing that more prisoners should be transferred to home confinement.

20 Petitioners, however, ignore that the Attorney General contemplated that the BOP

21 balance its obligation to protect those in its charge and the public:

22

While we have a solemn obligation to protect the people in BOP custody,

23

we also have an obligation to protect the public. That means we cannot simply release prison populations en masse onto the streets. Doing so would

24

pose profound risks to the public from released prisoners engaging in

25

additional criminal activity, potentially including violent or heinous sex offenses.

26

27 ECF No. 18-1 (“Rim Decl.”), Ex. A at 9. In an earlier, March 26, 2020, memorandum,

28 the Attorney General directed certain criteria on what the BOP should consider in

1

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 14 of 77 Page ID #:846

1 “assessing which inmates should be granted home confinement,” specifically stating that

2 “[s]ome offenses, such as sex offenses, will render an inmate ineligible for home

3 detention.” See id., Ex. C at 39-40. Thus, under the Attorney General’s direction,

4 Petitioners are ineligible for home confinement based on the nature of their offenses, and

5 their petitions are moot in addition to other jurisdictional bars. Brown and Fears’ request

6 is further moot because the BOP has already considered the proper place of confinement

7 for them and they are slated to be transferred to a different facility.

8

Other unnamed petitioners, even if eligible for transfer to home confinement under

9 the Attorney General’s memoranda, could not be ordered to home confinement by the

10 Court as the Court has no jurisdiction to designate an inmate’s place of confinement. See

11 Reeb v. Thomas, 636 F.3d 1224, 1226 (9th Cir. 2011) (holding that 18 U.S.C. § 3625

12 bars judicial review of any substantive “‘determination, decision or order’ made pursuant

13 to 18 U.S.C. §§ 3621-3624”); Reynolds v. Thomas, 603 F.3d 1144, 1150 (9th Cir. 2010)

14 (under 18 U.S.C. § 3621(b), it is the BOP’s responsibility “to identify the facility in

15 which a federal prisoner will serve out the sentence imposed by the district court”);

16 Grayson v. Rison, 945 F.2d 1064, 1067 (9th Cir. 1991) (prisoners have “no right to be at

17 any particular prison” within the federal system); Neal v. Shimoda, 131 F.3d 818, 828

18 (9th Cir. 1997) (same).

19

As Petitioners do not challenge the fact or duration of confinement, but merely

20 seek to challenge the conditions of their confinement, this Court could not order their

21 release from custody because the Prison Litigation Reform Act (“PLRA”) places

22 limitations on a district court’s ability to order the release of inmates, and expressly

23 precludes a single district judge from ordering such a release. 18 U.S.C. § 3626(a)(3)(B).

24 Thus, this Court is statutorily precluded from granting the very remedy Petitioners seek.

25

As for the prisoners remaining at FCC Lompoc, Petitioners seek a Court order

26 requiring Respondents to “provide the minimally adequate medical care required by the

27 Eighth Amendment.” ECF No. 18 at 16:19-20. As a preliminary matter, the Court lacks

28 jurisdiction over conditions-of-confinement claims in a habeas action. Even if the Court

2

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 15 of 77 Page ID #:847

1 had jurisdiction, Petitioners cannot present an Eighth Amendment violation because the

2 BOP has been adapting and applying the Centers for Disease Control (“CDC”) “Interim

3 Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional

4 and Detention Facilities” throughout the agency, including at FCC Lompoc.

5 Respondents have provided the relief Petitioners seek; thus, their conditions-of-

6 confinement claim is moot as well as being unable to demonstrate either prong of the

7 Eighth Amendment test: that the alleged deprivation was “‘objectively’ sufficiently

8 serious” or that prison officials acted with “‘deliberate difference’ to inmate health or

9 safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).

10

Respondents recognize and regret that inmates have died as a result of COVID-19,

11 and are among the 108,920 Americans who have died from this novel virus, including

12 the thousands who have died in Southern California.1 The Eighth Amendment, however,

13 does not hold prison officials liable under the Eighth Amendment “even if the harm

14 ultimately was not averted.” Farmer, 511 U.S. at 844-45. A loss of life is always tragic,

15 but an Eighth Amendment violation does not arise because the BOP facilities were not

16 immune from the ravages caused by COVID-19, just as it has not spared the lives of too

17 many other Americans.

18

Petitioners’ Eighth Amendment claims are also not subject to judicial review

19 because they have not exhausted their available administrative remedies as required

20 under the PLRA. 42 U.S.C. § 1997e(a). Petitioners admit they have not exhausted, or

21 even attempted to exhaust, their administrative remedies under the PLRA, and their

22 arguments why they should be excused from the exhaustion requirement lack merit.

23 Moreover, in addition to the traditional grievance process, Petitioners have other avenues

24 of redress. They can move for immediate release under 18 U.S.C. § 3582(c)(1)(A) with

25 their sentencing court. They could request compassionate release or a reduction in

26

27 1 Coronavirus Resource Center: COVID-19 Dashboard, John Hopkins Univ. &
28 Med., https://coronavirus.jhu.edu/map.html (last accessed June 5, 2020); http://publichealth.lacounty.gov/media/coronavirus/ (last updated June 3, 2020). 3

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 16 of 77 Page ID #:848

1 sentence under 18 U.S.C. §§ 3582 and 4205(g). They could request that the Warden

2 respond to an emergency request within three calendar days under 28 C.F.R. § 542.18.

3 Petitioners’ blanket contention that exhaustion is “effectively unavailable” is therefore

4 speculative and untrue.

5

In short, Petitioners are asking the Court to release or transfer to home

6 confinement convicted criminals and to oversee the running of FCC Lompoc, or as one

7 district court phrased it, to act as “a de facto ‘super’ warden.” Livas v. Myers, 2020 WL

8 1939583, at *8 (W.D. La. Apr. 22, 2020). As with Livas, and the majority of district

9 courts that have addressed similar petitions stemming from the COVID-19 pandemic,

10 this Court should reject Petitioners’ request to usurp executive functions entrusted to the

11 BOP by Congress.2 Turner v. Safley, 482 U.S. 78, 84-85 (1987) (“Running a prison is an

12 inordinately difficult undertaking that requires expertise, planning, and the commitment

13 of resources, all of which are peculiarly within the province of the legislative and

14 executive branches of government.”); id. at 85 (“counsel[ing] a policy of judicial

15 restraint” in cases involving prison administration); Farmer, 511 U.S. at 846-47 (courts

16 should not become “enmeshed in the minutiae of prison operations”) (internal quotation

17 marks and citation omitted).

18

For all these reasons, Petitioners’ application fails because they cannot establish

19 the first prong of the TRO/preliminary injunction test, that they are “likely to succeed on

20 the merits.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008)

21 (“injunctive relief is an extraordinary remedy that may only be awarded upon a clear

22

23

24

2 In addition to Livas, district courts throughout the country have denied similar

TRO applications. See Nellson v. Barnhart, 2020 WL 3000961 (D. Colo. Jun. 4, 2020);

25 Lucero-Gonzalez v. Kline, 2020 WL 2987002 (D. Ariz. Jun. 2, 2020); Maney v. Brown,

2020 WL 2839423 (D. Ore. Jun. 1, 2020) Wragg v. Ortiz, 2020 WL 2745247 (D.N.J.

26 May 27, 2020); Jones v. Bergami, 2020 WL 2575566 (W.D. Tex. May 21, 2020);

Alvarez v. Larose, 2020 WL 2315807 (S.D. Cal. May 9, 2020); Grinis v. Spaulding,

27 2020 WL 2300313 (D. Mass. May 8, 2020); Furando v. Ortiz, 2020 WL 1922357

(D.N.J. Apr. 21, 2020); Plata v. Newsom, 2020 WL 1908776 (N.D. Cal. Apr. 17, 2020);

28 Nellson v. Barnhart, 2020 WL 1890670 (D. Col. Apr. 16, 2020); Money v. Pritzker,

2020 WL 1820660 (N.D. Ill. Apr. 10, 2020).

4

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 17 of 77 Page ID #:849

1 showing that the plaintiff is entitled to such relief”) (citing Mazurek v. Armstrong, 520

2 U.S. 968, 972 (1997) (per curiam)).

3

The irreparable harm and public interest factors also weigh against Petitioners. Id.

4 at 24 (“In exercising their sound discretion, courts of equity should pay particular regard

5 for the public consequences in employing the extraordinary remedy of injunction.”)

6 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)). To grant

7 Petitioners’ requests would unfairly intrude on the operation and functioning of FCC

8 Lompoc. Further, although Petitioners contend that they can safely quarantine outside of

9 FCC Lompoc, there is no guarantee that the immediate release of Petitioners, or of a

10 class of inmates, who may lack viable housing and may be deprived of access to food,

11 means of personal hygiene, and medical care if released, would not endanger the public.

12 The public, moreover, must be protected from Petitioners themselves who have been

13 convicted of serious crimes and sentenced to lengthy incarceration terms.

14

Respondents respectfully request that the Court deny Petitioners’ TRO

15 Application.

16 II. FACTUAL BACKGROUND

17

A. FCC Lompoc’s Structure and Population

18

FCC Lompoc is a federal prison complex located approximately 150 miles north

19 of Los Angeles and 53 miles north of Santa Barbara. Declaration of James Engleman

20 (“Engleman Decl.”), filed concurrently herewith, ¶ 5. FCC Lompoc houses male inmates

21 at: (1) a United States Penitentiary (“USP Lompoc” or “USP”) which operates as a

22 medium security institution that has a minimum security satellite camp (“USP Lompoc

23 Camp” or “Camp”); and (2) a Federal Correctional Institution (“FCI Lompoc” or “FCI”)

24 which operates as a low security institution. Id. The inmates at FCC Lompoc are serving

25 sentences ranging from a few months to life imprisonment, range in age from 19-80, and

26 have been convicted for a wide variety of offenses including, but not limited to, drug-

27 related charges, sex offenses, weapons charges, fraud/bribery charges, and homicide. Id.

28

5

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 18 of 77 Page ID #:850

1

USP Lompoc has units that are physically divided into 2-man cells with walls and

2 cell doors and some of the units have grills for doors. Id. ¶ 6. Each cell has a sink/water

3 fountain and toilet. Id. The Camp is separate and apart from the FCI and USP and has no

4 fences or perimeter-based barriers of any kind. Declaration of Lawrence Cross (“Cross

5 Decl.”), filed concurrently herewith, ¶ 4. FCI Lompoc and all three buildings that

6 comprise the USP Lompoc’s Camp facilities are structured as dormitories. Engleman

7 Decl. ¶ 6. Some areas have open configurations, whereas others have smaller 8 to 10-

8 man rooms. Id. These facilities have community restrooms with sinks, toilet facilities,

9 and showers. Id.

10

As of June 3, 2020, FCC Lompoc has a population of 2,599 inmates. Id. ¶ 7. USP

11 Lompoc’s current population consists of 1,124 inmates. Id. ¶ 7.a. Of these, 250 are

12 inmates from the FCI that are housed at the USP temporarily. Id. The population of USP

13 inmates is 874. Id. There are 474 inmates at USP Lompoc Camp, with 323 inmates at

14 South Camp and 151 inmates at North Camp. Id. Of the population, 33 inmates at USP

15 Lompoc (including the 250 FCI inmates), or 2.9%, are over age 65. Id. USP Lompoc’s

16 population has steadily been decreasing from 1,058 in January to 1,012 in February to

17 980 in March, and to 986 in April. Id. FCI Lompoc’s population as of June 3, 2020 was

18 1,000 inmates (exclusive of the 250 inmates housed at USP Lompoc). Id. ¶ 7.b. At FCI

19 Lompoc, there are 62 inmates, or 6.2% of the population, who are age 65 or older. Id.

20 FCI Lompoc’s population has decreased steadily decreased in recent months with 1,339

21 inmates in January to 1,314 in February, to 1,293 in March, and to 1,240 in April.

22

The health services department at FCC Lompoc has 28 clinical medical staff,

23 including three physicians, three mid-level practitioners, four paramedics, one quality

24 improvement/infection control nurse, and several dental, pharmacy, and clerical staff.

25 Cross Decl. ¶ 5. In addition to the BOP staff, there is one Public Health Services

26 employee who works with the medical team at FCC Lompoc on a regular basis. Id. FCC

27 Lompoc also utilizes local community hospitals and contract providers to meet the

28 emergent and specialized medical needs of the inmate population. Id. As discussed

6

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 19 of 77 Page ID #:851

1 below, as part of the FCC Lompoc response to COVID-19, the BOP contracted for

2 numerous providers to man the Hospital Care Unit (HCU) that was constructed in

3 response to the COVID-10 pandemic. Id.

4

B. Efforts Taken by the BOP and FCC Lompoc To Address COVID-19

5

In responding to the COVID-19 pandemic, the BOP quickly developed and began

6 implementing a multiphase action plan, following guidance and directives from the CDC

7 and World Health Organization (“WHO”). Cross Decl. ¶ 15; Engleman Decl. ¶ 54. As

8 discussed more fully below, the BOP has undertaken significant efforts to educate

9 inmates and staff, health-screen all individuals on site, to screen new arrivals, to provide

10 surgical and cloth masks to inmates, and to increase sanitation measures and the

11 quantities of cleaning supplies in common areas and living quarters. Cross Decl. ¶¶ 19,

12 26, 28, 30; Engleman Decl. ¶¶ 56, 65-86. Every single inmate at FCI Lompoc has been

13 tested for COVID-19. Cross Decl. ¶ 28; Engleman Decl. ¶ 78. Although this testing has

14 increased the number of positive cases identified on the BOP website, the data from this

15 testing has enabled the BOP to implement cohorting, isolation, and quarantine measures.

16 Cross Decl. ¶ 28. FCC Lompoc medical staff regularly screen inmates through

17 temperature and symptom checks. Id. ¶¶ 30, 33. All staff and contractors, and essential

18 volunteers must undergo a health screening before they may enter the facility. Id. ¶¶ 15,

19 19.c, 24. FCC Lompoc continues to update its procedures and practices in accordance

20 with the evolving information and guidance concerning this pandemic. Id. ¶¶ 26-33.

21

The BOP has had a Pandemic Influenza Plan in place since 2012. That protocol is

22 lengthy and detailed, establishing a six-phase framework requiring BOP facilities to

23 begin preparations when there is first a “[s]uspected human outbreak overseas.”3 The

24 plan addresses social distancing, hygienic and cleaning protocols, and the quarantining

25 and treatment of symptomatic inmates.

26

27 3 BOP Health Services Division, Pandemic Influenza Plan-Module 1: Surveillance
28 and Infection Control (Oct. 2012), available at https://www.bop.gov/resources/pdfs/pan_flu_module_1.pdf 7

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 20 of 77 Page ID #:852

1

1. The BOP and FCC Lompoc’s Phased Action Plan to Respond to COVID-19

2

In January 2020, the BOP became aware of the first identified COVID-19 case in

3 the United States and quickly took steps to address its introduction and spread in BOP

4 institutions. Engleman Decl. ¶ 51. The BOP and FCC Lompoc has had infectious disease

5 control and prevention as part of its Annual Training for staff for at least ten years. Id.

6

a. Phase I – Guidance From Health Authorities and Establishment of

7

Task Force

8

During Phase I, the BOP established a task force to begin strategic planning for

9 COVID-19 Bureau-wide, led by the BOP’s Medical Director, Dr. Jeffery Allen, who

10 worked in conjunction with subject matter experts from the WHO and the CDC, which

11 issued guidance to the field and helped in the development of screening protocols for

12 staff, visitors, and inmates. Engleman Decl. ¶ 54.

13

The BOP began distributing information about COVID-19 to the inmate

14 population as early as February 5, 2020. Id. Guidance was issued to FCC Lompoc staff

15 on March 10, 2020 explaining how the BOP’s screening and leave procedures would

16 operate. Id. On March 12, 2020, FCC Lompoc posted CDC posters on how to stop the

17 spread of respiratory diseases for the inmate population. Id.

18

b. Phase II – Health Screening of Inmates and Staff and Social

19

Distancing Measures

20

On March 13, 2020, the BOP implemented Phase II of its Action Plan. Engleman

21 Decl. ¶ 55. Phase II required each facility to assess its inventories and assess adequate

22 supplies, update their pandemic plans, and establish quarantine areas in their facilities.

23 Id. Phase II put into place a number of restrictions across all BOP facilities over a 30-day

24 period, to be reevaluated upon the conclusion of that time period. Id. Specifically, the

25 BOP suspended the following activities for 30 days, with certain limited exceptions:

26

27

28

8

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 21 of 77 Page ID #:853

1 social visits4, legal visits, inmate facility transfers, official staff travel, staff training,

2 contractor access, volunteer visits, and tours. Id. ¶ 55.a. Phase II also provided for the

3 screening of staff and inmates for known COVID-19 symptoms. Id. On March 13, 2020,

4 the Acting Warden sent a notice to the inmate population concerning the BOP’s COVID-

5 19 Protective measures. Id. As of that date, there were no inmates testing positive for

6 COVID-19 in the BOP. Id.

7

On March 16, 2020, a staff screening site was established at the FCC Lompoc

8 Training Center for all staff, essential contractors, and volunteers to be screened before

9 entering the facility. Id. ¶ 56. Staff were instructed not to come to work if they are sick,

10 that personal protective equipment (“PPE”) was available for their use, screening and

11 leave guidance, information about COVID-19, the importance of handwashing, and

12 stopping the spread of germs. Id. FCC Lompoc canceled most training with the

13 exception of fit testing, Introduction to Correctional Techniques (the initial training for

14 new employees), and training for non-health care providers to enable them to perform

15 screening. Id.

16

On March 25, 2020, FCC Lompoc posted CDC posters about how to stop the

17 spread of germs for the inmate population. Id. ¶ 58. FCC Lompoc also created a

18 Quarantine Unit and sent guidance to staff on its operation. Id. FCC Lompoc made

19 efforts to keep inmates within their housing units to better contain the potential spread of

20 COVID-19 and emphasized extra sanitation of phones and keyboards, mask-wearing and

21 social distancing, increased personal and area cleanliness. Id. ¶ 55.b. On March 27, 2020,

22 FCC Lompoc modified commissary schedules to help limit inmate group contact. Id.

23

24

25

26

27

4 Contrary to Petitioners’ claims that they were unable to access telephones, the

BOP increased inmates’ telephone allotment to 500 minutes per month (from 300

28 minutes per month) to help ensure that inmates maintained social ties during this time.

Engleman Decl. ¶ 55.a.

9

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 22 of 77 Page ID #:854

1

c. Phase III – Maximizing Telework and Inventorying Sanitation and

2

Medical Supplies

3

On March 18, 2020, Phase III guidance was issued addressing non-institutional

4 changes, which were inapplicable to the day-to-day operations of FCC Lompoc.

5 Engleman Decl. ¶ 57.

6

d. Phase IV – Further Mitigation Efforts

7

On March 26, 2020, the BOP implemented Phase IV of its Action Plan adding

8 additional preventative measures for quarantine and isolation and the use of PPE by

9 screening staff at all institutions. Engleman Decl. ¶ 59, Ex. BB. This guidance was

10 updated as to quarantine and isolation on March 28, 2020. Id., Ex. CC.

11

At USP Lompoc, the cells allow the BOP to better manage the spread of COVID-

12 19 and the BOP has taken steps to minimize inmate activity that might increase the risk

13 of spreading COVID-19. Id. ¶ 60. During Phase IV, each housing unit was permitted to

14 go outside to the yard or to Education for one hour, every other day. Id. They were

15 provided showers and phone/computer access every other day. Id. For quarantined units,

16 inmates may still come out to use the shower, phone, or computers every other day. Id.

17

e. Phase V – Further Secure In Place and Social Distancing Measures

18

Phase V of the COVID-19 Action Plan took effect on April 1, 2020. Engleman

19 Decl. ¶ 61, Ex. DD. As part of this phase, the following measures were implemented at

20 FCC Lompoc:

21 A. For a 14-day period, inmates in every institution would be secured in their

22

assigned cells/quarters to decrease the spread of the virus.

23 B. During this time, to the extent practicable, inmates should still have access to

24

programs and services that are offered under normal operating procedures, such as

25

mental health treatment and education.

26 C. The BOP would coordinate with the United States Marshals Service (“USMS”) to

27

significantly decrease incoming movement.

28 D. After 14 days, this decision would be reevaluated and a decision made as to

10

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 23 of 77 Page ID #:855

1

whether or not to return to modified operations.

2 E. Limited group gathering would be afforded to the extent practical to facilitate

3

commissary, laundry, showers, telephone, and Trust Fund Limited Computer

4

System (TRULINCS5) access.

5 Id. ¶ 61.6

6

During this phase, all inmates at FCC Lompoc were confined to their cells for the

7 majority of the day. Id. ¶ 62. Meals were delivered directly to inmates’ cells, as well as a

8 limited number of commissary items. Id. Inmates were permitted to leave their cells in

9 small groups on a rotating basis at designated times in order to engage in activities such

10 as telephone use, TRULINCS, showers, and exercise. Id. Inmates were permitted to be

11 outside their cells in these small groups for approximately 2.5-3 hours per day,

12 depending on the day of the week and with appropriate physical distancing. Id.

13

On April 3, 2020, the CDC amended its guidance to recommend the use of face

14 masks to reduce the spread of COVID-19. Id. at ¶ 64. On April 6, 2020, the BOP issued

15 guidance to all CEO’s directing them to immediately implement CDC guidelines and to

16 issue masks to inmates. Id. Surgical masks were issued to all inmates and staff and was

17 later followed by distribution of three washable cloth masks for each inmate. Id.

18

(A) Sanitation Procedures

19

The primary disinfectant used to clean at FCC Lompoc is called hdq®C2, which is

20 listed on the Environmental Protection Agency’s List N, Disinfectants for Use Against

21 SARS-Co-V-2. Engleman Decl. ¶ 63. This product comes to the facility concentrated, so

22 hdq®C2 is diluted with 2 ounces per gallon of water. Id. According to product

23 information, at this concentration, it demonstrates effective disinfectant activity against a

24 number of bacteria, including Methicillin resistant staphylococcus aureus (MRSA), and

25

26

5 TRULINCS is the internal BOP computer and electronic message platform that

inmates use to communicate with staff in the institutions and individuals in the

27 community. Through this platform, inmates receive updates, notices, and can read

inmate bulletins posted on the system by BOP staff. See Engleman Decl. ¶ 61.

28

6 See https://www.bop.gov/resources/news/20200331_covid19_action_plan_5.jsp.

11

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 24 of 77 Page ID #:856

1 numbers strains of staphylococcus and viruses like HIV-1, HIV-2, Hepatitis B, Hepatitis

2 C, and more. Id. FCC Lompoc has recently received 240 quarts of AVISTAT-D™

3 Ready to Use Spray Disinfectant Cleaner, which is also listed on the EPA’s List N. Id.

4 This product is ready to use and is not diluted. Id.

5

On April 7, 2020, a reminder for the need for daily sanitation was emailed to all

6 staff emphasizing the continued need for social distancing, using PPE as instructed, and

7 keeping all frequently touched areas clean and disinfected. Id. ¶ 65. Enhanced sanitation

8 efforts were undertaken at all facilities. Id.

9

At USP Lompoc, all inmates in general population are issued hygiene items,

10 including soap on a weekly basis. Id. ¶ 65.a. Hand sanitizer is not available to inmates at

11 the medium security facility, but the commissary allows for the purchase of soap. Id.

12 Chemical sanitizer is available for all inmates in general population on a daily basis. Id.

13 Cleaning supplies are also distributed to all units on a weekly basis and available to

14 inmates daily. Id. Inmates in the Special Housing Unit (“SHU”) are distributed seven

15 packs of multi-soap shampoo on Tuesdays and Thursdays. Id. Anytime an inmate uses

16 the SHU Law Library, the area is disinfected after each use. Id.

17

At the Camp, there are two dispensers each at Camp South and Camp North with

18 antibacterial foam hand wash. Id. ¶ 65.b. Every Friday, inmates are issued hygiene items,

19 including soap. Id. Computer keyboards are covered with plastic bags for individual use.

20 Id. Indigent inmates are issued hygiene items, including soap weekly. Id. Cleaning

21 supplies are distributed to all units on a weekly basis and are available to inmates daily.

22 Id.

23

At FCI Lompoc, inmates were not provided hand sanitizer for their personal

24 possession, but staff were administering sanitizer before and after using computer

25 keyboards or phones. Id. at ¶ 65.c. Saran wrap was placed on keyboards prior to each

26 inmate’s use and phones were disinfected between each use. Id. Liquid antibacterial soap

27 is dispensed in all unit bathrooms. Id. Cleaning supplies are distributed to all units on a

28

12

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 25 of 77 Page ID #:857

1 weekly basis and are available to inmates daily. Id. Indigent inmates are issued hygiene

2 items, including soap on a weekly basis. Id.

3

(B) Further Inmate Education

4

On April 8, 2020, the BOP Director posted a memorandum to the inmate

5 population addressing the COVID-19 pandemic. Engleman Decl. ¶ 67, Ex. X at 7-12.

6 This communication advised that the BOP had its first positive confirmed COVID-19

7 case on March 21, 2020 and the first positive staff case the next day. Id. at 7. FCC

8 Lompoc sent staff information on COVID-19 and steps to take to stay healthy and to

9 stop the spread of the virus. Id. While COVID-19 testing was not readily available to

10 asymptomatic individuals in the community, FCC Lompoc was able to obtain the

11 assistance of the Lompoc Health Care Center to provide FCC Lompoc staff COVID-19

12 testing and later at another facility. Id.

13

Information on the proper use of face coverings was posted for the inmate

14 population on April 13, 2020. Id. ¶ 68, Ex. EE at 13. FCC Lompoc staff also posted

15 relevant signs and guidance through the Housing Unit areas. Id.

16

f. Phase VI – Continuation of Secure In Place and Social Distancing

17

Measures, Testing, and Construction of Hospital Unit

18

Phase VI of the COVID-19 Action Plan took effect from April 13, 2020 to May

19 18, 2020. Engleman Decl. ¶ 69. As part of this phase, the Assistant Directors ordered

20 that inmates in every institution continue to be secured in their assigned cells/quarters,

21 limited group gathering would be afforded to the extent practical to facilitate telephone,

22 TRULINCS, commissary, laundry, and showers. Id. This plan reiterated efforts to

23 mitigate movement of staff and inmates, outlined criteria for quarantine and isolation of

24 inmates, minimized outside contacts, and addressed logistical needs and continued use of

25 PPE. Id., Ex. FF. In distributing the Phase VI guidance to staff, the FCC Lompoc Acting

26 Warden reemphasized the importance of PPE and ensuring staff and inmates have this

27 equipment. Id. The Attorney General issued guidance on April 14, 2020, directing DOJ

28 employees to wear face coverings in public settings. Id., Exhibit YY.

13

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 26 of 77 Page ID #:858

1

On April 16, 2020, FCC Lompoc cancelled all staff scheduled leave and posted

2 notices to the inmate population on handwashing and information regarding COVID-19.

3 Id. ¶ 70, Ex. X at 14-16.

4

(C) Enhanced Mitigation Measures

5

On April 17, 2020, FCC Lompoc took enhanced mitigation measures due to the

6 spread of COVID-19 at FCC Lompoc. Engleman Decl. ¶ 71. These enhanced modified

7 operations were generally described in a memoranda issued to staff on April 17, 2020,

8 and individualized notice was provided to inmates at the USP, FCI and the Camp. Id.,

9 Ex. GG. Specifically, these measures mandated the use of masks and cleanliness by the

10 inmate population and began restricting inmates to their housing units and cells. Id.

11 During this time, FCC Lompoc restricted inmate use of phone and TRULINCS in order

12 to prevent inmates from transferring COVID. Id.

13

At USP Lompoc, inmates were required to wear a mask at all times. Id. Every

14 inmate had already been issued surgical and cloth masks and replacements were

15 available upon request. Id. ¶ 71.a. Every inmate received disinfectant and paper towels to

16 keep their housing area clean and were advised they will be held accountable if they fail

17 to maintain sanitation. Id. Hygiene items were issued weekly and laundry exchange

18 occurred weekly. Id. Inmate’s mail services were unaffected so they could send and

19 receive mail. Id. Legal calls were made available as needed. Id.

20

Camp inmates had similar conditions required. Id. ¶ 71.b. They were required to

21 wear a mask at all times. Id. Every inmate had already been issued surgical and cloth

22 masks and replacements were available upon request. Id., Ex. NN at 63. Every inmate

23 received disinfectant and paper towels to keep their housing area clean and were advised

24 they will be held accountable if they fail to maintain sanitation. Id. Commissary, Food

25 Services, Medical Services and Laundry Services were not affected by the changes at

26 this time. Id. Inmate’s mail services were unaffected so they could send and receive mail.

27 Id. Legal calls were made available as needed. Id.

28

At FCI Lompoc, movement was even more restricted as it was limited to the use

14

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 27 of 77 Page ID #:859

1 of the restroom or communicating with staff. Id. ¶ 71.c. Inmates were required to wear a

2 mask at all times. Id. Every inmate had already been issued surgical and cloth masks and

3 replacements were available upon request. Id. Every inmate received disinfectant and

4 paper towels to keep their housing area clean and were advised they will be held

5 accountable if they fail to maintain sanitation. Id. Hygiene items were issued weekly and

6 laundry exchange occurred weekly. Id. Inmate’s mail services were unaffected so they

7 could send and receive mail. Id. Legal calls were made available as needed. Id.

8 Commissary was suspended but Food Services, Medical Services and Laundry Services

9 were not affected. Id.

10

After all inmates received masks and FCC Lompoc increased its educational

11 efforts, its COVID-19 numbers were still rising and FCC Lompoc believed it needed

12 more aggressive measures and implemented 14 days of enhanced mitigation measures

13 starting April 17, 2020. Id. ¶ 72. These included suspending all phone and computer

14 access due to the fear of the spread of COVID-19 through surfaces. Id. Depending on the

15 level of security at the facility, various restrictions were implemented: (1) at USP

16 Lompoc, movements were limited to cells so that there was no access to showers,

17 although a weekly laundry exchange was performed and inmates were allowed to have

18 commissary for up to $50; (2) at FCI Lompoc, only commissary services were

19 suspended; and (3) at the Camp, inmates were permitted to have commissary services as

20 usual. Id.

21

In a Press Release on April 20, 2020, FCC Lompoc announced it was negotiating

22 a contract for an on-site mobile hospital equipped with hospital beds and medical

23 personnel. Id. ¶ 73, Ex. HH. Staff were apprised of the Complex’s efforts through an

24 email sent that same day. Id. Through this communication, the Warden took the

25 opportunity to ask staff to wear their masks even when in the community. Id.

26

On April 29, 2020, a document addressing Frequently Asked Questions for FCC

27 Lompoc was distributed to the inmate population to address some of the more pressing

28

15

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 28 of 77 Page ID #:860

1 questions being raised. Id. ¶ 74, Ex. II.7

2

On Friday, May 1, 2020, staff were advised that effective Monday, May 4, 2020,

3 enhanced modified operations at USP Lompoc and the Camp would go into effect. Id.

4 ¶ 75. These modified operations were being implemented after the 14-day quarantine

5 period passed. Id. These modified enhanced operations involved allowing inmates to use

6 showers one at a time with the area being disinfected after each use, brief phone and

7 email access was allowed with stringent standards of sanitation and disinfecting in place,

8 and surgical masks were required at all time. Id. The plan was to do this for a week and

9 for those areas completing the quarantine period, the modified operations would change

10 to allow for inmates to be allowed out for a period of time to shower and use the phones

11 or computers. Id. This guidance advised that any positive test could require regression of

12 the process to an earlier phase. Id.

13

A May 4, 2020 Press Release announced the finalized construction of a Hospital

14 Care Unit (HCU) inside the confines of USP Lompoc at the medium-security component

15 of the Complex which includes ten (10) double-occupancy, acute care treatment rooms

16 with negative pressure, Patient Intake Room, Nurses Station, Pharmacy, Linen Exchange

17 Room, Biohazard Room, and Medical Supply & Storage. Id. ¶ 76. Additionally, FCC

18 Lompoc announced it negotiated a contract for medical personnel, including Doctors,

19 Registered Nurses, Paramedics, Pharmacist, Physician Assistants, Nurse Assistants, and

20 a Clinical Manager, who will work in conjunction with FCC Lompoc Health Services

21 staff. Id., Exhibit JJ.

22

FCC Lompoc began gradually retreating from enhanced mitigation measures

23 starting on May 4, 2020 to allow the Associate Wardens to increase services in an

24 orderly manner. Id. ¶ 77. At the USP, inmates were first allowed access to showers,

25

26 7 This April 29, 2020 FAQ notes that FCC Lompoc staff focused on reviewing all
27 inmates who meet the criteria for home confinement provided by the Attorney General, and that as of the date of the FAQ, 61 inmates at FCC Lompoc had been found suitable
28 for home confinement and that due to new guidance proceed on April 24, 2020, the review of inmates for home confinement was ongoing. Engleman Decl. ¶ 74, Ex. II 16

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 29 of 77 Page ID #:861

1 phones, and emails on a rotating, take-turns basis. Id. After a week of carefully

2 monitored rotations, the Associate Wardens or their designees would increase inmate

3 access by allowing a small number of inmates out of their cells to use their choices of

4 services, such as showers, phone, and emails. Id. These two phases were referred to as

5 Phase II/Phase III. Id. On May 14, 2020, FCC Lompoc accounted Phase III/IV where

6 inmates were permitted to be out in groups of no more than 10 for a period of one hour

7 to use showers, phones, and computers. Id. Phase IV permitted inmates to access the

8 outdoor track for walking and to use the law library through a sign-up sheet to ensure

9 appropriate social distancing. Id.

10

(D) Testing of All Inmates at FCI Lompoc and Cohorting

11

On May 5, 2020, FCC Lompoc announced it was testing 100% of the inmate

12 population for COVID-19 starting at the FCI. Engleman Decl. ¶ 78. FCC Lompoc

13 acknowledged that as a result of doing so, it may significantly increase the number of

14 COVID-19 positive cases at the facility despite only a small percentage experiencing

15 acute or chronic illness. Id. This measure was taken to further assist in mitigation efforts.

16 Id. Additional information was posted in inmate housing units as it became available. Id.,

17 Ex. EE at 8 (identifying symptoms) and 12 (reflecting changes in CDC guidance about

18 symptoms).

19

On May 8, 2020, the Acting Warden updated staff on the recent happenings at the

20 Complex. Id. ¶ 79. Specifically, 182 COVID-negative inmates were moved from the FCI

21 to the USP into a quarantine unit dedicated solely for those inmates in order to reduce

22 the population of the FCI and “providing them the space they need to accomplish their

23 social distancing goals.” Id. The update also announced the anticipated arrival of a 100

24 square foot tent to further enhance social distancing opportunities, and that 20 contract

25 workers for the Hospital Care Unit had commenced their orientation to the facility. Id.

26 The update reminded staff the facility was “continuously reviewing inmates for

27 Residential Reentry Centers, Home Confinement placements, furlough eligibility prior to

28 placement in RRC/HC’s, to further allow us to create the environment needed in a

17

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 30 of 77 Page ID #:862

1 correctional setting to counter COVID-19. Id. The practice of staff being assigned to

2 specific areas and facilities and not being assigned to multiple areas across the complex

3 was continued to minimize the potential cross transmission on the complex by staff. Id.

4 Emails were sent to staff imploring them to follow guidance regarding social distancing

5 and the wearing of masks while in public, donning PPE particularly when responding to

6 situations in a quarantine or isolation area and reminding staff of the critical importance

7 of social distancing and use of PPE. Id.

8

FCC Lompoc announced to staff on May 12, 2020, that the Hospital Care Unit

9 (“HCU”) was activated over the previous weekend and that inmates with less severe

10 COVID-19 symptoms currently being managed at the local hospital would be returned to

11 the facility to reduce community pressures by returning those inmates and announced the

12 impending installation of a BLU-Med Hospital Tent at the FCI. Id. ¶ 80.

13

On May 14, 2020, FCC Lompoc issued further guidance on enhanced modified

14 operations at Units C, J, and L at USP Lompoc to be effective on May 18, 2020. Id. ¶ 81.

15 This guidance still required social distancing, use of masks, and stringent standards of

16 sanitation. Id. However, for these units, a small number of inmates, of no more than 10

17 inmates at a time, would be allowed in the common area (a.k.a. the flats) for a one-hour

18 period during which they could shower and use the phones and computers. Id. It

19 announced the next phase would include inmate access to outside recreation on the track

20 and to the Law Library in the Education Department, while cautioning that any medical

21 or social distancing concerns would cause regression to prior practices. Id. In

22 summarizing the week’s accomplishments through an email to staff on May 15, 2015,

23 the Acting Warden commented on the addition of a clean transition area for staff

24 working directly with symptomatic inmates, the establishment of the satellite HCU

25 Pharmacy, and creation of the HCU medical supply storage and well as the erection of a

26 hospital tent at the FCI. Id.

27

28

18

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 31 of 77 Page ID #:863

1

g. Phase VII – Current Operations

2

On May 18, 2020, the relevant Assistant Directors of the Bureau issued guidance

3 on the implementation of Phase VII of the BOP’s COVID-19 Action Plan, which took

4 effect on May 18, 2020. Engleman Decl. ¶ 82, Ex. KK. It extended the Phase VI Action

5 Plan through June 30, 2020. Id. Among other measures, it added testing of inmates new

6 to the BOP, and directed that whenever possible, inmates should be permitted access to

7 the Electronic Law Library consistent with social distancing protocols and safe

8 institution operations. Id. At FCC Lompoc, the improving conditions at the facility

9 enabled management to restore a number of non-custody staff to the normal duties. Id.

10

Pursuant to Phase VII (which took effect on May 18, 2020), all inmates at FCC

11 Lompoc are confined to their cells for the majority of the day. Id. ¶ 83. Meals are

12 delivered directly to the housing units. Id. However, inmates are permitted to leave their

13 cells in small groups on a rotating basis at designated times in order to engage in

14 activities such as using the phones, TRULINCS, showers, and exercise. Id. FCC Lompoc

15 announced it will “begin organizing and preparing for our new normal inside the Low

16 and Camps while continuing to battle in the USP to eradicate this disease . . . [balanced

17 against the] additional pressure . . . to get visitation and other programming restarted.”

18 Id. FCC Lompoc management announced it would be “strategically reactivating certain

19 programs for the inmate populations to slowly establish a more recognizable operation”

20 safely. Id. The Acting Warden distributed plans for the next phase of the Camp’s

21 modified operations which included adding Law Library access and expanding time for

22 phones, emails, and the track (outside recreation). Id. These measures were contingent

23 upon the use of masks, social distancing and stringent standards of sanitation being

24 maintained. Id.

25

Another Frequently Asked Questions for FCC Lompoc document was generated

26 and provided to inmates on May 11, 2020, which explained quarantine procedure and

27 CARES Act consideration for home confinement. Id. ¶ 84, Ex. LL.

28

19

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 32 of 77 Page ID #:864

1

On June 1, 2020, a third iteration of the Frequently Asked Questions for FCC

2 Lompoc was issued to staff and inmates. Id. ¶ 86, Exhibit MM. This version explains the

3 process for pre-release or transfer quarantine procedures both at the facility and if need

4 be, in the community. Id.

5

Unrelated to the spread of COVID-19, on June 1, 2020, the BOP locked down all

6 of its facilities nation-wide due to wide spread unrest and rioting across the country. Id.

7 ¶ 87. All inmates are therefore presently restricted to their living areas. Id.

8

h. Access to Legal Calls

9

Given the public health emergency, FCC Lompoc staff feel it is necessary to

10 minimize movement that could put both staff and inmates at risk, and focused on

11 managing inmates and increased sanitation efforts. Engleman Decl. ¶ 85. Since April 1,

12 2020, however, FCC Lompoc has accommodated urgent legal calls by request. Id. In

13 order to arrange a legal call, BOP staff must take an inmate out of a quarantine or

14 isolation unit/cell and into a staff office with an unmonitored line. Id. When provided

15 with a legal call, inmates had been limited to a 15 minute call. Id. This time limitation

16 was to ensure that all inmates were provided legal calls and that staff are able to

17 adequately disinfect the equipment and area between calls. Id. Given the limitations on

18 inmate movement within the institution, the limited number of phones available for legal

19 calls, and the sheer volume of requests being received, inmates may not have been able

20 to complete legal calls as quickly as requested.

21

2. FCC Lompoc’s Medical Response to COVID-198

22

a. Implementation of Screening Procedures

23

Even prior to the first reported case of COVID-19 in late March 2020, the BOP

24 and FCC Lompoc had made efforts to follow the CDC guidance related to COVID-19.

25

26 8 As of June 5, 2020, the BOP’s public COVID-19 webpage
27 (https://www.bop.gov/coronavirus/) reports there are 15 confirmed inmate cases of COVID-19 at USP Lompoc (which includes the Camp) and one confirmed inmate case
28 of COVID-19 at FCI Lompoc. To date, 157 inmates at USP Lompoc recovered while two passed away and 893 inmates at FCI Lompoc recovered while two passed away. 20

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 33 of 77 Page ID #:865

1 Cross Decl. ¶ 15.a., Ex A, Memo re: Guidance on 2019 Novel Coronavirus Infection for

2 Staff Screening dated 2020-01-31 and Memo re: Guidance on 2019 Novel Coronavirus

3 Infection for Inmate Screening and Management dated 2002-01-31. Medical screenings

4 of all staff and visitors to FCC Lompoc started on March 16, 2020. Id. ¶ 24. As CDC

5 guidance changed regarding symptoms of the virus, the BOP modified its screening

6 tools. Id. A copy of the current screening tools used by the BOP and at FCC Lompoc as

7 of June 1, 2020, is attached to the Cross Decl. as Ex. E at 3-6.

8

Outside medical and dental trips were prioritized and reduced to the extent

9 possible to minimize the risk of infection or spreading within the facility. Id. ¶ 15.b., Ex.

10 B, BOP Guidance for Prioritizing Outside Medical and Dental Trips During the COVID-

11 19 Pandemic. Clinical guidance on screening inmates was provided to clinical medical

12 providers on or about March 20, 2020. Id. ¶ 15.c, Ex. C at 1-2. Clinical information on

13 medical quarantine and isolation procedures was distributed to medical providers on or

14 about March 22, 2020. Id. ¶ 15.d, Ex. D at 1-2.

15

b. As of March 30, 2020, No Sick Call Co-Pays Have Been Charged

16

On March 23, 2020, the CDC issued Interim Guidance on Management of

17 Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities. Cross

18 Decl. ¶ 16. On March 30, 2020, BOP announced no sick call co-pay will be charged to

19 any inmate presenting for COVID-like symptoms. Id. ¶ 17.

20

c. Masks, Education, and Mass Testing

21

The first confirmed case of COVID-19 at FCC Lompoc was at the USP on March

22 30, 2020. Cross Decl. ¶ 18. The virus spread despite considerable efforts to control the

23 spread. Id. The hardest hit facility was the FCI. Id. Upon mass testing and identifying a

24 significant number of asymptomatic positive inmates at the FCI, the determination was

25 made to remove the COVID-19 negative inmates from the facility to their own dedicated

26 unit in the USP where there had been no confirmed cases at that time with the goal of

27 preventing the further transmission of the disease. Id.

28

21

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 34 of 77 Page ID #:866

1

In April 2020, FCC Lompoc established a comprehensive infection prevention

2 program which included a wide variety of activities. On April 6, 2020, FCC distributed

3 multiple masks to inmates and staff and provided education on the proper donning and

4 doffing of the masks. Id. ¶ 19.a. Signs were posted in locations appropriate to educate

5 inmate and staff about cleaning surfaces, personal hygiene, social distancing, and

6 coughing practices. Id. ¶ 19.b. FCC Lompoc set up an off-site health screening site for

7 staff which staff are required to successfully pass before being allowed to enter into their

8 work/duty station. Id. ¶ 19.c. Every inmate had access to cleaning supplies and were

9 encouraged to frequently clean and disinfect their own areas. Id. ¶ 19.d. Additionally,

10 FCC Lompoc initiated regular symptom and temperature checks of every inmate by

11 medical staff. Id. ¶ 19.e.

12

BOP medical personnel assisting both FCI Terminal Island and FCC Lompoc

13 reached out to the Public Health departments in Los Angeles and Santa Barbara County

14 to coordinate responses and seek guidance. Id. ¶ 20. The decision to mass test was made

15 after collaboration with the LA County Public Health Department. Id. BOP’s initial

16 response to the outbreak at FCI Terminal Island and at FCC Lompoc was in accordance

17 with current CDC guidance which called for the facility to identify/test and isolate the

18 symptomatic immediately. Id. ¶ 20.b. As the number of symptomatic cases grew, the

19 decision was made to conduct mass testing at FCC Lompoc. Id. ¶ 20.d. Santa Barbara

20 County public health officials made no specific recommendations and gave no access to

21 testing unlike Los Angeles County for FCI Terminal Island which provided guidance;

22 FCC Lompoc therefore initiated its own contract with WestPac and used the same

23 procedure for testing and isolation as recommended by the Los Angeles County public

24 health department for FCI Terminal Island. Id. ¶ 20.e.

25

d. FCC Lompoc Has Sufficient Cleaning Supplies and PPE

26

In addition to these steps, FCC Lompoc was on the BOP priority list for all

27 necessary resources, which allowed it to maintain its inventory of PPE and other supplies

28 like masks and cleaning products. Cross Decl. ¶ 21. FCC Lompoc received dozens of

22

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 35 of 77 Page ID #:867

1 staff deployed temporarily (TDY) from other BOP locations which helped it supplement

2 its staffing, and to date, it still has supplemental staffing from other BOP locations. Id.

3

e. Isolation and Cohorting

4

The BOP uses the same language as the CDC to discuss pertinent issues like social

5 distancing, quarantine, medical isolation, cohorting, and recovery. Cross Decl. ¶ 22.

6 The CDC defines social distancing as the “practice of increasing the space between

7 individuals and decreasing the frequency of contact to reduce the risk of spreading a

8 disease (ideally to maintain at least 6 feet between all individuals, even those who are

9 asymptomatic). Id. ¶ 22.a. Social distancing strategies can be applied on an individual

10 level (e.g., avoiding physical contact), a group level (e.g., canceling group activities

11 where individuals will be in close contact), and an operational level (e.g., rearranging

12 chairs in the dining hall to increase distance between them).” Id., Ex. E at 4. “Quarantine

13 refers to the practice of confining individuals who have had close contact with a

14 COVID-19 case to determine whether they develop symptoms of the disease. Id. ¶ 22.b.

15 Quarantine for COVID-19 should last for a period of 14 days. Id. Ideally, each

16 quarantined individual would be quarantined in a single cell with solid walls and a solid

17 door that closes. Id. If symptoms develop during the 14-day period, the individual should

18 be placed under medical isolation and evaluated for COVID-19. Id. If symptoms do not

19 develop, movement restrictions can be lifted, and the individual can return to their

20 previous residency status within the facility.” Id., Ex. E at 4. “Medical isolation refers to

21 confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid

22 walls and a solid door that closes), to prevent contact with others and to reduce the risk

23 of transmission. Medical isolation ends when the individual meets pre-established

24 clinical and/or testing criteria for release from isolation, in consultation with clinical

25 providers and public health officials (detailed in guidance below).” Id. ¶ 22.c, Ex. E at 4.

26 “Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19

27 cases together as a group, or quarantining close contacts of a particular case together as a

28 group.” Id. ¶ 22.d, Ex. E at 3. “Recovery is defined as resolution of fever without the use

23

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 36 of 77 Page ID #:868

1 of fever-reducing medications with progressive improvement or resolution of other

2 symptoms.” Id. ¶ 22.e., Ex. G at 2.

3

FCC Lompoc has worked with infectious disease experts from the BOP and

4 executive staff to implement various quarantine and isolation procedures, which included

5 developing an Isolation Unit inside the USP for any symptomatic inmates from any of

6 the institutions at FCC Lompoc. Id. ¶ 23. The Isolation Unit has a capacity of just over

7 200 inmates, is comprised of cells that are walled-off on all sides except for the open-

8 barred entryway. Id. As of the date of this declaration, there are approximately just over

9 30 inmates in the Isolation Unit. Id. Inmates are usually single-celled, unless it is

10 clinically acceptable to house two specific inmates together. Id. All BOP staff who work

11 in the Isolation Unit are mandated to wear appropriate PPE, which allows them to work

12 safely and effectively to monitor the inmates in the Isolation Unit, and to seek medical

13 assistance if necessary. Id. As long as these symptomatic inmates who tested positive for

14 COVID-19 do not need hospitalized care, they will be treated by BOP medical staff until

15 they recover, pursuant to CDC guidelines. Id. All inmates in the Isolation Unit are

16 symptom and temperature checked daily by BOP medical staff. Id.

17

f. FCC Lompoc Continues to Evolve Its Response to COVID-19

18

According to Updated Guidance and Testing

19

FCC Lompoc’s response to COVID-19 has continued to evolve as CDC Guidance

20 has been updated throughout the course of this pandemic. Cross Decl. ¶ 26. For example,

21 in mid-April 2020, FCC Lompoc initiated 14 days of enhanced mitigation measures

22 which greatly limited inmate activity and movement, and mandated inmates to wear

23 masks and maintain hygiene/cleanliness. Id. ¶ 26.a. Staff were assigned to work one area

24 (USP, FCI or Camp) and all of their assignments were to be at that facility to prevent

25 staff going between facilities and possibly spreading the virus that way. Id. ¶ 26.b.

26 Inmates were cohorted by the structure of the institution. Id. At FCI Lompoc, separate

27 floors were cohorted so that inmates would not intermingle throughout the housing unit.

28 Id. ¶ 26.c. At the USP, inmates were cohorted by housing unit. Id. At the Camp, inmates

24

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 37 of 77 Page ID #:869

1 have been cohorted by their assigned building. Id. FCC Lompoc also separated inmates

2 by job assignment, such as food service and farm employees and cohorted them in non-

3 traditional areas to maximize social distancing. Id.

4

(A) Universal Testing at FCI Lompoc and Isolation and Quarantine

5

Procedures

6

In early May, the staff at FCC Lompoc began pursuing a strategy that would lead

7 to the testing of all inmates at the FCI, regardless of symptomology in order to address

8 the spread of COVID-19. Cross Decl. ¶ 28. FCI Lompoc purchased the test kits to be

9 administered by Health Services staff and contracted with a private company to complete

10 the lab work. Id. Prior to universal testing, all symptomatic inmates at FCI Lompoc were

11 placed in insolation. Id. ¶ 28.a. As the majority of FCI Lompoc inmates tested positive

12 through the mass testing, if any asymptomatic inmates developed some mild symptoms

13 after universal testing, they remained at FCI Lompoc in their respective housing unit. Id.

14 ¶ 28.b. All of these inmates were still subject to daily symptom screening and

15 temperature checks and any positive inmate who had worsening symptoms could be

16 assessed by medical staff for further medical care as needed. Id. After the universal

17 testing at FCI Lompoc was completed in early May, inmates testing negative were

18 moved into M Unit inside the USP, which was designated a “clean” housing unit to

19 better insulate them from infection from COVID-19. Id. ¶ 28.c. Cohort testing of M-Unit

20 continued to be conducted. Id.

21

During the week of May 11, 2020, FCC Lompoc decided to retest all of the

22 negative inmates who were being housed in M Unit given the probability there could be

23 some false negatives, and because even highly reliable testing methods might not detect

24 COVID-19 if it had not yet developed sufficiently for testing to detect it. Id. ¶ 28.d. As a

25 result of this retesting process, 87 inmates tested positive or indeterminate for COVID-

26 19 on May 13, 2020, and they were immediately moved across the hall into the Isolation

27 Unit at USP Lompoc or back into their housing unit at FCI Lompoc. Id. ¶ 28.e. FCC

28 Lompoc staff believed placement of asymptomatic inmates who test positive for

25

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 38 of 77 Page ID #:870

1 COVID-19 into the Isolation Unit would be the best way to prevent the further spread of

2 COVID-19. Id. While there are symptomatic inmates with COVID-19 in the Isolation

3 Unit, there is no evidence to suggest further spread/infection as both groups are already

4 positive with COVID-19. Id. Inmates in the Isolation Unit are symptom and temperature

5 checked daily, and if any inmate's symptoms worsen, medical staff can decide on

6 whether more advanced care is needed, like transfer to the HCU or to a local hospital. Id.

7

Pursuant to the CDC protocols and BOP guidelines that follow CDC protocols

8 regarding COVID-19 and prisons, an individual who tests positive may be deemed

9 recovered after 14 days of improved symptoms, with the last three days being fever-free.

10 Id. ¶ 29.9 Accordingly, the BOP had adopted this guidance and implemented a 14-day

11 quarantine period. Id.

12

(B) Medical Care

13

FCC Lompoc currently have medical staff performing temperature testing and

14 symptom screening daily in every quarantine and isolation housing unit, and if an inmate

15 is identified as symptomatic, the inmate to the Isolation Unit inside the USP, or to a local

16 hospital as needed for further evaluation, testing, and/or treatment. Cross Decl. ¶ 30.

17 Testing for COVID-19 can currently be performed locally through an on-site Abbott ID

18 testing machine, by sending it to a referral contract laboratory, or by whichever means

19 the local hospital chooses to use. Id.

20

FCC Lompoc created an on-site HCU as another measure to address COVID-19,

21 and to alleviate any burden on community hospital resources that might exist. Id. ¶ 31.

22 Although FCC Lompoc has been using up to three local hospitals to care for COVID-19

23 patients, it developed the HCU to provide another medical resource for FCC Lompoc. Id.

24 Inmates who need intensive-care level medical services, like a ventilator, will continue

25 to be sent to a local hospital, but, inmates who can be managed with on-site 24/7

26

27

28

9 See https:/ /www.cdc.gov/ coronavirus/2019-ncov /community/strategy-

discontinue-isolation.html.

26

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 39 of 77 Page ID #:871

1 contracted medical staff, will be cared for in the HCU. Id. As of June 3, 2020, FCC

2 Lompoc has nine patients currently in the HCU. Id.

3

Additionally, FCC Lompoc erected a BLU-MED: Negative Pressure Isolation

4 System. Id. ¶ 32. It was initially erected for use to enhance social distancing

5 opportunities and used as a separate isolation unit for inmates with mild respiratory

6 symptoms. Id. There are currently no inmates housed in this area, but it is available

7 should it become needed in the future. Id.

8

As of June 5, 2020, the entire population of FCI Lompoc is considered recovered

9 from COVID-19. Id. ¶ 33. Inmates will continue to be monitored by Health Services. Id.

10 Sick call and medication distribution occurs daily in the housing units. Id. USP Lompoc

11 Unit M is the quarantine unit for inmates from FCI Lompoc. Id. L Unit is on quarantine

12 and Camp South B are on quarantine. Id. Inmates on quarantine will continue to have

13 daily symptom screening and temperature checks. Id. The entire complex is on lockdown

14 as part of the nationwide response to rioting throughout the country, so medical staff

15 conduct twice daily pill lines throughout the entire complex. Id. Sick call requests are

16 passed out and collected by Unit Officers daily and are addressed by Health Services as

17 needed. Id.

18

C. Administrative Grievance Requirements

19

Upon arrival at FCI Lompoc, every inmate is provided an Admission and

20 Orientation handbook with information on the BOP’s Administrative Remedy Program.

21 Engleman Decl. ¶ 43. One of the class lectures during each inmate’s orientation is about

22 the Administrative Remedy Program and every inmate is advised how to participate in

23 the administrative remedy process. Id. The BOP has a four-tiered administrative remedy

24 process for inmates challenging issues related to their imprisonment codified in the Code

25 of Federal Regulations. Id. ¶ 44; 28 C.F.R. §§ 542.10, et. seq. Additionally, the BOP has

26 issued Program Statement 1330.18, Administrative Remedy Program (January 6, 2014),

27 which includes the regulations and the Bureau’s implementing language. Id., Ex. U.

28

27

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 40 of 77 Page ID #:872

1

First, the inmate can seek informal resolution of the issue of concern at his

2 institution of confinement (via a BP-8 form). 28 C.F.R. § 542.13; Ex. U at 4. If informal

3 resolution is not successful, the inmate may file a formal request with the Warden (via a

4 BP-9 form). 28 C.F.R. § 542.14; Ex. U at 4-6. “The deadline for completion of informal

5 resolution and submission of a formal written Administrative Remedy Request, on the

6 appropriate form (BP-9), is 20 calendar days following the date on which the basis for

7 the Request occurred.” Id. There is an exception in policy that allows an inmate to seek

8 relief directly at the Regional level when the issue is “sensitive.” 28 C.F.R. § 542.14(d);

9 Ex. U at 6. Such requests are only appropriate if the inmate “reasonably believes the

10 issue is sensitive and the inmate’s safety or well-being would be placed in danger if the

11 Request became known at the institution.” Id. If the inmate is unsatisfied with the

12 response or no response is timely received, the inmate may appeal to the Regional

13 Director, within 20 days of receiving the Warden’s response (via a BP-10 form).

14

If the inmate is unsatisfied with the response or no response is timely received

15 from the Region, then he may pursue a final appeal to the Inmate Appeal Administrator

16 in the office of General Counsel in Washington, D.C. (via a BP-11 form). 28 C.F.R.

17 § 542.15. Pursuant to 28 C.F.R. § 542.15(a), an “[a]ppeal to the General Counsel is the

18 final administrative appeal.” Thus, the administrative process is not complete until the

19 Office of the General Counsel (“OGC”) replies, on the merits, to the inmate’s appeal, or

20 if the response by OGC is not forthcoming within the time allotted for reply. See 28

21 C.F.R. § 542.18.

22

Based on a review of FCC Lompoc records, none of the Petitioners have

23 submitted or exhausted administrative remedies regarding conditions of confinement at

24 FCC Lompoc. Id. ¶ 46.

25

D. Reduction in Sentence/Compassionate Release Procedures

26

In addition to the PLRA-mandated administrative grievance process, Petitioners

27 may avail themselves of the Compassionate Release/Reduction in Sentence Procedures

28

28

Case 2:20-cv-04450-CBM-PVC Document 25 Filed 06/05/20 Page 41 of 77 Page ID #:873

1 for Implementation of 18 U.S.C. §§ 3582 at 4205(g) (“PS 5050.50”).10 Previously, only

2 the director of the BOP was authorized to file compassionate release/reduction in

3 sentence motions on behalf of an inmate. Declaration of Melissa Arnold (“Arnold

4 Decl.”), filed concurrently herewith, ¶ 3. However, the current statute permits inmates to

5 file such motions themselves after having “fully exhausted all administrative rights to

6 appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or

7 the lapse of 30 days from the receipt of such a request by the warden of the defendant’s

8 facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A); Arnold Decl. ¶ 3.

9

Under this process, an inmate first submits an initial request for a reduction in

10 sentence to the institution’s warden. Id. ¶ 4; PS 5050.50 at 3. The request must set forth

11 the “extraordinary and compelling circumstances” justifying the request and the inmate’s

12 proposed release plans, including where they will reside, how they will support

13 themselves, and, if applicable, where he or she will obtain medical treatment and how it

14 will be paid for. Id. Upon receipt, the Reduction in Sentence coordinator forwards the

15 request to the institution’s Health Services Department for Review. Id. The request is

16 then reviewed to determine whether the inmate’s request qualifies under the BOP’s

17 criteria identified policy. Id.

18

Upon receipt of the pertinent information, the Warden will determine whether the

19 request warrants approval. Id. ¶ 5. If the Warden approves the request, the Warden refers

20 the request to the BOP’s Office of General Counsel for further processing. Id. If the

21 Warden determines the request does not warrant referral, the Warden provides the

22 inmate with written notice of the decision and the basis for that decision. Id. The inmate

23 can appeal that denial through the BOP’s administrative remedy process. Id.

24

Here, BOP records indicate that Carrer-Torres’s sister, Kiara Carrer, made a

25 reduction in sentence request on his behalf on May 14, 2020. Id. ¶ 6.a. This request is

26 being reviewed to determine whether he qualifies for the BOP’s criteria for

27

28

10 Available at: https://www.bop.gov/policy/progstat/5050_050_EN.pdf

29

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1 compassionate release. Id. Reed’s counsel filed a request for compassionate release on

2 January 7, 2020. Id. ¶ 6.b. Reed’s request was denied on April 29, 2020. Id. Garcia

3 submitted a request for a reduction in sentence, which was received by the Warden on

4 May 20, 2020. Id. ¶ 6.c. This request seeks home confinement under the CARES Act and

5 asks to be “released earlier.” Id. This request is being reviewed by the institution’s staff

6 to determine whether he qualifies under the agency’s criteria for compassionate release.

7 Id. Brown’s counsel sent request for compassionate release for Brown on May 13, 2020.

8 Id. ¶ 6.d. This request is being reviewed by the staff to determine whether he qualifies

9 under the agency’s criteria for compassionate release. Id. No request for a reduction of

10 sentence for Fears has been received. Id. ¶ 6.e.

11

Once BOP staff complete their review of the outstanding requests for Carrer-

12 Torres, Garcia, and Brown, they will make a recommendation. Id. ¶ 7. The Warden will

13 consider that recommendation and either forward the application to the BOP’s Office of

14 General Counsel for further processing or will deny the application and inform the

15 inmate in writing. Id. In the event of a denial, the Petitioners have the opportunity to

16 appeal that denial through the administrative remedy process. Id.

17

E. Home Confinement under the CARES Act

18

The CARES Act, PL 116-136, 134 Stat 281 (Mar. 27, 2020), expanded BOP’s

19 home confinement authority under limited conditions. Specifically, as to Home

20 Confinement, § 12003(b)(2) provides that during a “covered emergency period” (CEP),

21 if the Attorney General finds that “emergency conditions will materially affect the

22 functioning of the Bureau,” the BOP Director may lengthen the maximum amount of

23 time a prisoner spends in home confinement “under the first sentence of section

24 3624(c)(2),” as the Director “determines appropriate.” Through a letter dated April 3,

25 2020, the Attorney General made such a determination as to “FCI Oakdale, FCI

26 Danbury, FCI Elkton, and at other similar situated BOP facilities where COVID-19 is

27 materially affecting operations” and instructed BOP to maximize appropriate transfers of

28

30

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1 “all inmates whom you deem suitable candidates for home confinement.” Rim Decl., Ex.

2 A at 8-9.

3

The Attorney General directed that in assessing which inmates would qualify for

4 home confinement, the BOP was to consider the “totality of the circumstances,” and a

5 list of non-exhaustive discretionary factors:

6 • The age and vulnerability of the inmate to COVID-19 in accordance with CDC

7

guidelines;

8 • The security level of the facility currently holding the inmate, with priority given

9

to inmates residing in low and minimum security facilities;

10 • The inmate’s conduct in prison, with inmates who have engaged in violent or

11

gang-related activity in prison or who have incurred a BOP violation within the

12

last year not receiving priority treatment;

13 • The inmate’s score under PATTERN [Prisoner Assessment Tool Targeting

14

Estimated Risk and Need], with inmates who have anything above a minimum

15

score not receiving priority treatment;

16 • Whether the inmate has demonstrated and verifiable re-entry plan that will prevent

17

recidivism and maximize public safety, including verification that the conditions

18

under which the inmate would be confined upon release would present a lower

19

risk of contracting COVID-19 than the inmate would face in the BOP facility; and

20 • The inmate’s crime of conviction, and assessment of the danger posed by the

21

inmate to the community. Some offenses, such as sex offenses, will render an

22

inmate ineligible for home detention. Other serious offenses should weigh more

23

heavily against consideration of home detention.

24 Id., Ex. D at 39-40.
25 Included among the factors that must be assessed is whether “the inmate’s primary
26 offense is not violent, a sex offense or terrorism related,” among other factors. Engleman
27 Decl. ¶ 48, Ex. LL at 1, 4. The phrase “offense is not violent” is not defined in the
28

31

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1 memorandum, but the BOP has issued Program Statement 5162.05, Categorization of

2 Offenses (March 16, 2009), that assists staff in “implementation of various Federal

3 Bureau of Prisons policies and programs” that call for the identification of violent

4 offenses. Id., Ex. NN at 1. The BOP’s list of offenses that constitute a crime of violence

5 in all cases include 18 U.S.C. §§ “2113(d),(e) bank robbery and incidental crimes” and

6 “2119 crimes involving motor vehicles.” Id. ¶ 49.a. Additionally, violations of 18 U.S.C.

7 § 924, penalties for firearms violations may be violent depending on the underlying

8 offense. Id.

9

The Assistant Directors’ guidance memoranda implementing the Attorney

10 General’s instructions to determine suitability for home confinement was issued on April

11 22, 2020, rescinded, and re-issued on May 8, 2020. Engleman Decl. ¶ 48, Ex. V. In

12 implementing this guidance, the BOP conducted individualized evaluations of each

13 inmate at FCC Lompoc. Id. None of the Petitioners fell within the class of individuals to

14 be prioritized and none of them have been formally considered for home confinement.

15 Id. ¶¶ 49-50.

16

F. Petitioners’ Criminal Convictions

17

Respondents provide an overview of each Petitioner’s most recent criminal

18 history. This is important because, as the Attorney General recently explained, while the

19 government has a “solemn obligation to protect the people in BOP custody,” it also has

20 “an obligation to protect the public. That means we cannot simply release prison

21 populations en masse onto the streets. Doing so would pose profound risks to the public

22 from released prisoners engaging in additional criminal activity, potentially including

23 violence or heinous sex offenses.” See Rim Decl., Ex. A at 9. Notably, in filing their

24 action, Petitioners failed to identify the factual basis for their detention. See 28 U.S.C.

25 § 2242 (writs of habeas corpus “shall allege the facts concerning the applicant’s

26 commitment or detention, the name of the person who has custody over him and by

27 virtue of what claim or authority”) (emphasis provided). Respondents have certified the

28 cause of detention for each of the named Petitioners. As their detention is lawful and

32

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1 certified copies of judgments demonstrating imposed terms of incarceration have been

2 provided as part of this response, there is no bases for granting a writ of habeas corpus.

3 28 U.S.C. § 2249.

4

1. Carror-Torres Was Convicted for Carjacking with Serious Bodily Injury

5

(Sexual Assault) and Aiding and Abetting a Violent Crime by Carrying a

6

Firearm, and Sentenced to 20 Years Imprisonment

7

The district court for the District of Puerto Rico sentenced Carror-Torres to 240

8 months (20 years) imprisonment for convictions of carjacking involving serious bodily

9 injury in violation of 18 U.S.C. § 2119, and aiding and abetting that violent crime

10 through the carrying of a firearm in violation of 18 U.S.C. § 924(c)(1)(a)(ii). Engleman

11 Decl. ¶ 8, Ex. A. In committing these crimes, Carror-Torres pointed a handgun at the

12 victim and demanded that she undress, and then he sexually fondled her and forced her

13 to orally copulate him. Id. If Carror-Torres earns all remaining good conduct time, his

14 projected release date is August 7, 2023. Id. ¶ 9, Ex. A. Carror-Torres does not qualify

15 for priority placement home confinement under the Attorney General’s memoranda of on

16 March 26 and April 3, 2020, because his offense is both violent and a sex offense. Id.

17 ¶¶ 49.a.-b.

18

2. Reed Was Convicted of Armed Bank Robbery, Armed Carjacking, and

19

Destroying Property, and Sentenced to 25 Years Imprisonment

20

The district court for the District of Columbia sentenced Reed to 300 months (25

21 years) imprisonment following his convictions for armed bank robbery in violation of 18

22 U.S.C. § 2113(a) and (d), armed carjacking in violation of D.C. Code §§ 2803(a)(1) and

23 (b)(1), and destroying property in violation of D.C. Code § 303. Engleman Decl. ¶ 14,

24 Ex. D. These charges arose out of a bank robbery where Reed pointed a gun at a teller

25 and demanded money and then, during his escape, he carjacked a truck after pointing a

26 gun at the driver. Id. Assuming Reed earns all remaining good conduct time, his

27 projected release date is August 5, 2025. Id. ¶ 16. Reed does not qualify for priority

28

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1 placement on home confinement under the Attorney General’s memoranda because his

2 offense is violent. Id. ¶ 49.a.

3

3. Garcia Was Convicted of Possession of Methamphetamine with Intent to

4

Distribute and Sentenced to Seven Years Imprisonment

5

The district court for the Southern District of California sentenced Garcia to 87

6 months (seven years and three months) imprisonment following his conviction for

7 possession of methamphetamine with intent to distribute in violation of 21 U.S.C.

8 § 841(a)(1). Engleman Decl. ¶ 21, Ex. G. Assuming he earns all remaining good conduct

9 time, and successfully completes the community portion of the drug treatment program,

10 his projected release date is November 6, 2020. Id. ¶ 23. Garcia does not qualify for

11 priority placement on home confinement under the Attorney General’s memoranda

12 because he has a low risk of recidivism PATTERN score. Id. ¶ 27. Garcia is close to

13 release and has been considered for prerelease confinement and has a tentative

14 residential reentry center transfer date of July 9, 2020. Id. ¶ 28.

15

4. Brown Was Convicted of Conspiracy to Manufacture, Distribute, and

16

Possess with Intent to Distribute Phencyclidine (PCP), and Illegally Possess

17

a Listed Chemical and Distribution and Possession with Intent to Distribute

18

PCP, and Sentenced to 12.5 Years Imprisonment

19

The district court for the Central District of California sentenced Brown to 150

20 months (12.5 years) imprisonment following his convictions for conspiracy to

21 manufacture, distribute, and possess with intent to distribute PCP, and illegally possess a

22 listed chemical and distribution and possession with intent to distribute PCP, in violation

23 of 21 U.S.C. §§ 841(a)(1),(b)(1)(B)(iv) & 846. Engleman Decl. ¶ 29, Ex. J. Assuming he

24 earns all remaining good conduct time, his projected release date is October 6, 2024. Id.

25 ¶ 31. The BOP has had decided to transfer Brown to a different facility, to be effective

26 on March 5, 2020, but did not take place because the BOP stopped all routine movement

27 in March. Id. ¶ 30. It is anticipated that the move will occur once the BOP resumes

28 inmate movement. Id. Brown does not qualify for priority placement on home

34

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1 confinement under the Attorney General’s memoranda because of his low risk of

2 recidivism PATTERN score. Id. ¶¶ 35, 49.a.

3

5. Fears Was Convicted of Conspiracy to Possess with Intent to Distribute 15

4

Kilograms of Cocaine and, After Violating the Terms of His Supervised

5

Release, Sentenced to 32 Months Imprisonment

6

The district court for the Northern District of Ohio sentenced Fears to 32 months

7 (two years and eight months) imprisonment following his violation of the terms of his

8 supervised release relating to an underlying conviction for conspiracy to possess with

9 intent to distribute 15 kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) & 846.

10 Engleman Decl. ¶ 36, Ex. M. Assuming he earns all remaining good conduct time, his

11 projected release date is August 19, 2021. Id. ¶ 38. The BOP has already decided to

12 transfer Fears to a different facility, and he also does not qualify for priority placement

13 on home confinement under the Attorney General’s memoranda because of his risk of

14 recidivism. Id. ¶ 50.

15

G. Petitioners’ Health Histories

16

1. Carror-Torres Has Received Adequate Medical Care and Has Not Reported

17

Any COVID-19 Symptoms to Medical Staff

18

Carror-Torres is 24 years old, and has a history of asthma and depression. Cross

19 Decl. ¶ 7. He is assigned to USP Lompoc. Id. He was issued a surgical mask on April 6,

20 2020 and three washable cloth masks on April 14, 2020. Id. ¶ 7.a. On April 23, 2020, he

21 was seen in Health Services for sick call complaining of a throbbing headache and a dry

22 cough. Id. ¶ 7.b. He was suspected of having COVID-19 and moved to a different

23 housing unit for isolation and testing. Id. Upon entering his new housing unit, he was

24 provided with new surgical masks. Id. at the time of his examination, his respiration was

25 found to be “even and unlabored … without wheezes, rails, or rhonchi” and he was

26 observed to get on and off the exam table without voicing complaints and having a

27 normal gait. Id. Labs were drawn and a chest x-ray was taken and he was advised to

28 report any worsening or new symptoms immediately. Id. He was examined, his

35

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1 temperature was taken, pulse taken, oxygen saturation was measured and his symptoms

2 were evaluated from April 23-May 7. Id. ¶ 7.b.i. At no point during this period did he

3 have a fever. Id. On April 25, 2020, Torres’ COVID-19 test results came back negative.

4 Id. ¶ 7.b.ii.

5

On May 6, 2020, Carror-Torres was examined and was found to have mild

6 exercise induced tachycardia after he had been running in place for many minutes for his

7 own exercise. Id. ¶ 7.c. Because his COVID-19 test results were negative, he was

8 returned to general population in his regularly assigned unit on May 7, 2020. Id.

9

There is no evidence in Carror-Torres’ medical records to support his claims that

10 he fell seriously ill and experienced COVID-19 symptoms of fever, diarrhea, and body

11 aches, that he asked for medical assistance for five days but was ignored, that he went

12 into acute respiratory shock and collapsed in his cell, that he tested positive for COVID-

13 19, or that he had to be put into a medically induced coma, intubated, or put on a

14 ventilator. Id. ¶ 8.

15

2. Reed Has Recovered from COVID-19 and Received Medical Care

16

Reed is 54 years old and has a history of hypertension, psychiatric disease

17 (depression and schizophrenia), and chronic pain. Id. ¶ 9. Reed is assigned to USP

18 Lompoc. Id. Reed was issued a surgical mask on April 6, 2020 and three washable cloth

19 masks on April 14, 2020. Id. ¶ 9.a. On March 6, 2020, Reed was examined for a chronic

20 care follow up and his hypertension was found to be well-controlled. Id. ¶ 9.

21

On March 30, 2020, Reed presented to sick call with flu-like symptoms including

22 cough, fever, and body aches. Id. ¶ 9.b. Labs were drawn, chest x-rays were taken, and

23 he was moved to isolation. Id. He was tested for COVID-19 on March 30, 2020 and the

24 result was returned as positive on March 31, 2020. Id. Reed’s temperature and pulse

25 were taken, his oxygen saturation was measured, and his symptoms were evaluated from

26 March 30-April 17 and from May 28-29. Id. ¶ 9.c. He was examined by a physician on

27 March 31, 2020 at which time he reported feeling better. Id. ¶ 9.d. He was examined by a

28 physician on April 7, 2020 after having a fever, at which time his pain medication was

36

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1 changed to acetaminophen. Id. ¶ 9.e. He was examined on April 14, 2020, at which time

2 he had no complaints and denied having difficulty breathing, diarrhea, shortness of

3 breath, or any other symptoms of COVID-19. Id. ¶ 9.f.

4

On May 26, 2020, Petitioner spoke to a psychologist and expressed concerns

5 about potentially still having COVID-19 and wanting a full physical examination and re-

6 testing. Id. 9.g. On May 27, 2020, Reed complained of dizziness and being light headed,

7 but denied having fever, chills, cough, sore throat, body aches, or loss of taste or smell,

8 or other symptoms of COVID-19, but asked to be retested. Id. ¶ 9.h. On May 29, 2020,

9 Reed was seen for a follow up with a physician for his dizziness complaint and stated he

10 had been suffering from dizziness for two months off and on. Id. ¶ 9.i. The physician

11 noted that Reed was anxious about COVID-19 and considered his current complaint as

12 psychogenic in origin. Id. On May 30, 2020, Reed complained of constipation and was

13 prescribed medication to assist. Id. ¶ 9.j.

14

Contrary to Reed’s claims that he was “left to languish in solitary confinement,”

15 Reed was seen regularly by medical personnel and psychology staff. Id. ¶ 10.

16

3. Garcia Has Tested Negative Three Times, Is Asymptomatic, and Did Not

17

Exhibit Any COVID-19 Symptoms

18

Garcia is 35 years old with a history of dermatitis and vision problems. Id. ¶ 11.

19 Garcia is assigned to FCI Lompoc. Id. Garcia has not presented any COVID-19 related

20 concerns to FCC Lompoc’s medical staff. Id. ¶ 11. Garcia was issued a surgical mask on

21 April 6, 2020 and three washable masks on April 14, 2020. Id. ¶ 11.a. His temperature

22 was taken by medical staff from April 29-30, and May 5 and 7, with no fevers. Id. ¶

23 11.b. Although Garcia was asymptomatic, he was tested for COVID-19 on May 4, 2020

24 as part of the mass testing conducted at FCC Lompoc. Id. ¶ 11.c. His test results came

25 back negative on May 6, 2020. Id. Garcia was among a number of COVID-19 negative

26 inmates moved to quarantine at USP Lompoc. Id. ¶ 11.d. Garcia was re-tested as part of

27 mass-screening on May 13, 2020 and a negative test result was reported on May 14,

28

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1 2020. Id. ¶ 11.e. Although he has always been asymptomatic, he was ordered to be tested

2 again on May 26, 2020 and was reported negative on May 31, 2020. Id. ¶ 11.f.

3

4. Brown Tested Negative, Was Asymptomatic, and Did Not Exhibit Any

4

COVID-19 Symptoms

5

Brown is a 54 year old male with a history of hypertension, asthma and

6 adenocarcinoma of prostate (a common form of prostate cancer), sleep apnea (for which

7 he uses a CPAP machine), and gastroesophageal reflux. Id. ¶ 12. Brown is assigned to

8 USP Lompoc. Id. Brown was issued a surgical mask on April 6, 2020 and three cloth

9 masks on April 14, 2020. Id. ¶ 12.a. Brown was tested for COVID-19 on May 27, 2020

10 and his test results were returned on June 1, 2020 as negative. Id. ¶ 12.b. Brown’s

11 temperature was taken by medical staff on April 24-May 6 and at no point did he have a

12 fever. Id. ¶ 12.c. Brown has been in the Special Housing Unit at USP Lompoc for non-

13 medical reasons since February 2, 2020. Id. ¶ 12.d.

14

5. Fears Is Asymptomatic and Did Not Exhibit COVID-19 Symptoms

15

Fears is a 50-year old male with a history of blindness in one eye, cataracts, and

16 benign neoplasm of the epididymis. Id. ¶ 13. Fears is assigned to USP Lompoc Camp.

17 Id. Fears was issued three washable cloth masks on April 14, 2020. Id. ¶ 13.a. Fears lives

18 in Unit A at the Camp and was placed in quarantine with the rest of the facility on March

19 31, 2020. Id. ¶ 13.b. He has not presented to medical with any complaints and his

20 temperature was taken March 30, May 1-8, with no fevers. Id. ¶ 13.c.

21 III. TRO/PRELIMINARY INJUNCTION LEGAL STANDARD

22

The purpose of a TRO is to preserve the status quo before a preliminary injunction

23 hearing may be held; its provisional remedial nature is designed merely to prevent

24 irreparable loss of rights prior to judgment. Granny Goose Foods, Inc. v. Brotherhood of

25 Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974). The standard for issuing a

26 TRO is identical to the standard for issuing a preliminary injunction. Lockheed Missile &

27 Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995).

28 Injunctive relief is an “extraordinary remedy that may only be awarded upon a clear

38

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1 showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. To meet that

2 showing, the moving party must make “a clear showing” that “he is likely to succeed on

3 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,

4 that the balance of equities tips in his favor, and that an injunction is in the public

5 interest.” Id. Where the government is a party, the balance of hardships and the public

6 interest factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009).

7

“A preliminary injunction can take two forms.” Marlyn Nutraceuticals v. Mucos

8 Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009). “A prohibitory injunction

9 prohibits a party from taking action and ‘preserves the status quo pending a

10 determination of the action on the merits.’” Id. (quoting Chalk v. U.S. Dist. Court, 840

11 F.2d 701, 704 (9th Cir. 1988)). In contrast, a “mandatory injunction ‘orders a responsible

12 party to take action.’” Id. at 879 (quoting Meghrig v. KFC W., Inc., 516 U.S. 479, 484

13 (1996)). “A mandatory injunction ‘goes well beyond simply maintaining the status quo

14 [p]endente lite [and] is particularly disfavored.’” Id. (quoting Anderson v. United States,

15 612 F.2d 1112, 1114 (9th Cir. 1980)). “In general, mandatory injunctions ‘are not

16 granted unless extreme or very serious damage will result and are not issued in doubtful

17 cases[.]’” Id. (quoting Anderson, 612 F.2d at 1115); accord Stanley v. Univ. of S. Cal.,

18 13 F.3d 1313, 1320 (9th Cir. 1994) (a mandatory injunction “is particularly disfavored

19 and a district court should deny such relief unless the facts and law clearly favor the

20 moving party”). Furthermore, in addition to these requirements, because the case

21 concerns the conditions at a prison, the Court cannot issue any prospective relief,

22 including preliminary relief, without first making the findings required under 18 U.S.C.

23 § 3626(a) and (b).

24

Petitioners cannot meet their burden for mandatory relief, in which this Court

25 would essentially be forced, on a time-compressed basis, to grant Petitioners all the relief

26 they ultimately seek. Marlyn Nutraceuticals, 571 F.3d at 878; see also Univ. of Tex. v.

27 Camenisch, 451 U.S. 390, 395 (1981) (“[I]t is generally inappropriate for a federal court

28 at the preliminary-injunction stage to give a final judgment on the merits”). It should not

39

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1 be utilized here given the jurisdictional and statutory hurdles described below, and

2 because it runs counter to legislative mandates, and intrudes the upon BOP’s executive

3 function of running its prisons.

4 IV. ARGUMENT

5

A. Plaintiff Cannot Show a Likelihood of Success on the Merits

6

1. The CARES Act Does Not Permit District Courts to Mandate Home

7

Confinement, and These Petitioners’ Claims Are Moot

8

Petitioners urge the Court to order the BOP to release prisoners under the CARES

9 Act, but the CARES Act provides authority for the Attorney General, not district courts,

10 to make a finding that emergency conditions exist which then authorizes the BOP to

11 expand the placement of prisoners on home confinement. See Jones, 2020 WL 2575566,

12 at *3 (“While the CARES Act gives the BOP broad discretion to expand the use of home

13 confinement during the COVID-19 pandemic, it does not grant the courts the authority to

14 order the placement of prisoners on home confinement.”) (citing United States v.

15 McCann, 2020 WL 1907089, at *3 (E.D. Ky. Apr. 17, 2020); United States v. Read-

16 Forbes, 2020 WL 1888856, at *5 (D. Kan. Apr. 16, 2020) (“the Court lacks jurisdiction

17 to order home detention under this provision); United States v. Doshi, 2020 WL

18 1527186, at *1 (E.D. Mich. Mar. 21, 2020) (“the authority to make this determination is

19 squarely allocated to the Attorney General, under whose authority is the Bureau of

20 Prisons”)); Maney, 2020 WL 2839423, at *2 (“[t]he law is clear that this Court cannot

21 order the release of categories of individuals, or even a single individual, nor may it

22 order transfers to underutilized or unused facilities to spread out the numbers, in

23 response to Plaintiffs’ claims”); Money, 2020 WL 1820660, at *17 (only the “executive

24 branch has the discretion to decide whether to end incarceration early”).

25

Specifically, as to Home Confinement, § 12003(b)(2) provides that during a

26 “covered emergency period,” if the Attorney General finds that “emergency conditions

27 will materially affect the functioning of the Bureau,” the BOP Director may lengthen the

28 maximum amount of time a prisoner spends in home confinement “under the first

40

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1 sentence of section 3624(c)(2),” as the Director “determines appropriate.” District courts

2 lack authority to order a prisoner’s placement in home confinement under the CARES

3 Act. Money, 2020 WL 1820660, at *17 (“executive branch has the discretion to decide

4 whether to end incarceration early”). This is because all placement determinations,

5 including placement on home confinement, are ultimately made under 18 U.S.C.

6 § 3621(b). See 18 U.S.C. § 3624(c)(6)(A); see also Sacora v. Thomas, 628 F.3d 1059,

7 1062 (9th Cir. 2010). As part of the First Step Act (“FSA”), Congress made it clear that

8 “[n]otwithstanding any other provision of law, a designat18 USC § 3621(b).ion of a

9 place of imprisonment under this subsection is not reviewable by any court.”

10

Indeed, even before the passage of the FSA, the 9th Circuit had ruled that a Court

11 may not review or second-guess the BOP’s discretionary placement decisions made

12 pursuant to either 18 USC §§ 3621 and 3624. Reeb, 636 F.3d at 1226-28 (reviewing

13 BOP’s individualized placement decisions in a habeas petition would be contrary to the

14 “plain language” of § 3625 exempting such placement decisions from judicial review);

15 see also Brown v. Sanders, 2011 WL 4899919, at *2 n.3 (C.D. Cal. Sept. 1, 2011), aff’d

16 sub. nom Brown v. Ives, 543 F. App’x 636 (9th Cir. 2013).

17

Although a court may recommend placement in a specific facility, the

18 determination of if and when a prisoner should serve the remainder of a sentence in

19 home confinement is best left to the discretion, experience, and expertise of the BOP.

20 McKune v. Lile, 536 U.S. 24, 39 (2002) (“The BOP has plenary control, subject to

21 statutory constraints, over ‘the place of the prisoner's imprisonment.’ . . . A sentencing

22 court can recommend that the BOP place an offender in a particular facility or program.

23 But decision-making authority rests with the BOP.”) (citation omitted); Tapia v. United

24 States, 564 U.S. 319, 331 (2011); United States v. Ceballos, 671 F.3d 852, 855 (9th Cir.

25 2011) (the BOP has sole statutory authority to choose the location where a prisoner

26 serves his sentence.). “[A]ny approach that puts the judicial branch in charge of

27 designating the place of confinement for a federal prisoner—no matter how well justified

28 on humanitarian grounds—collides with 18 U.S.C. § 4082(b) which gives the Attorney

41

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1 General unfettered discretion to decide where to house federal prisoners.” In re Gee, 815

2 F.2d 41, 42 (7th Cir. 1987).

3

For these Petitioners’ claims under the CARES Act are moot. The BOP’s

4 guidance implementing the Attorney General memoranda, on which Petitioners rely,

5 specifically state that those prisoners who have been convicted of violent and/or sex

6 crimes are not currently suitable for consideration for home confinement. Rim Decl., Ex.

7 A at 9 (April 3, 2020 memorandum) (Prisoners cannot be released “en masse” because to

8 do so would “pose profound risks to the public from released prisoners engaging in

9 additional criminal activity, potentially including violence or heinous sex offenses”); id.,

10 Ex. D at 40 (March 26, 2020 memorandum) (“Some offenses, such as sex offenses, will

11 render an inmate ineligible for home detention.”).

12

Here, Carror-Torres was convicted of a violent crime (carjacking and pointing a

13 handgun at the victim) and a sex crime (demanding that the victim undress at gunpoint

14 while he sexually fondled her and forced her to orally copulate him). Engleman Decl.

15 ¶ 8. Reed was convicted of a violent crime for armed bank robbery and armed

16 carjacking. Id. ¶ 14. Reed pointed a gun at a teller demanding money and then, during

17 his escape, he carjacked a truck after pointing a gun at the driver. Id. Garcia is unsuitable

18 as it would prohibit him from completing his judicially recommended drug treatment

19 program and result in his having to serve a longer portion of his sentence. Id. ¶ 49.b.

20 Brown and Fears are not suitable at this time because they have an unacceptable risk of

21 recidivism. Id. ¶ 50. Thus, Petitioners do not qualify for priority placement home

22 confinement under the Attorney General’s memoranda. Id. ¶¶ 49.a.-b.; 50. Thus,

23 Petitioners’ request for injunctive relief as to release should be denied because they

24 “have not shown that it is likely that they would qualify for transfer from incarceration to

25 home confinement under the current BOP eligibility requirement, and therefore they

26 have not shown that they personally have a likelihood of success in obtaining the relief

27 prayed for in their petition.” Grinis v. Spaulding, 2020 WL 2300313, at *3 (D. Mass.

28 May 8, 2020).

42

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1

These Petitioners’ request for consideration for release under the CARES Act is

2 therefore moot, and the Court lacks subject matter jurisdiction to consider it under the

3 U.S. Const. Art. III § 2. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (“The

4 doctrine[] of mootness . . . originate[s] in Article III’s ‘case’ or ‘controversy’ language,

5 no less than standing does.”); Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)

6 (“Under Article II of the Constitution, federal courts may adjudicate only actual, ongoing

7 cases or controversies.). A case or controversy exists if the litigant suffered an actual or

8 imminent injury traceable to the defendant that is likely to “be redressed by [favorable]

9 judicial decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

10

The key inquiry is whether the court can grant any meaningful relief. West v.

11 Secretary of Dept. of Transp., 206 F.3d 920, 925 (9th Cir. 2000). If there cannot be

12 effective relief, “any opinion as to the legality of the challenged action would be

13 advisory” and the case is moot. City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000);

14 Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (“a federal court[’s . . . ] judgments must

15 resolve a real and substantial controversy admitting of specific relief through a decree of

16 a conclusive character, as distinguished from an opinion advising that the law would be

17 upon a hypothetical state of facts.”); McQuillion v. Schwarzenegger, 369 F.3d 1091,

18 1095 (9th Cir. 2004) (request for declaratory judgment moot; advisory opinions

19 prohibited by the Constitution.

20

Because these Petitioners would not be entitled to release under the Attorney

21 General’s memoranda, their request for release under this authority fails to state a claim.

22 Further, to the extent Petitioner’s ask this court to stand in the place of the BOP and

23 designate the Petitioners’ place of confinement as their home, the court lacks jurisdiction

24 to do so and even if it had such jurisdiction, the Petitioners are not suitable for such a

25 placement thus the request is moot. These Petitioners, moreover, are not entitled to the

26 limited exception to the mootness doctrine where an issue is “capable of repetition, yet

27 evading review” because “(1) the challenged action was in its duration too short to be

28 fully litigated prior to its cessation or expiration, and (2) there was a reasonable

43

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1 expectation that the same complaining party would be subjected to the same action

2 again.” Murphy v. Hunt, 445 U.S. 478, 482 (1982). Petitioners cannot fit into this limited

3 exception because they cannot change their criminal histories.

4

Petitioners Brown and Fears further do not fit into this limited exception because

5 it is well established that prison inmate challenges to the conditions of their confinement

6 that seek purely injunctive or declaratory relief become moot when the inmate is released

7 or transferred to another facility because the inmate no longer has a legally cognizable

8 interest in the outcome. Dilley v. Gunn, 64 F.3d 1365, 1372 (9th Cir. 1995) (“claims that

9 [a prisoner] may be transferred back to Calipatria some time in the future [was] too

10 speculative to prevent mootness”) (internal quotation marks and citation omitted); see

11 also Jackson v. Hughes, 2010 WL 1737130 (C.D. Cal. Mar. 29, 2010) (J. Walsh)

12 (inmate’s request for injunctive and declaratory relief were moot when he was moved

13 from facility which would no longer house certain inmates); Perez v. Beltran, 2010 WL

14 760395 (C.D. Cal. Feb. 25, 2010) (C.J. Carney) (inmate’s injunctive relief claim moot

15 because he was no longer incarcerated where named defendants worked).11

16

As explained below, infra § 3.c., the BOP is already providing Petitioners

17 COVID-19 measures consistent with CDC guidelines which is essentially the relief they

18 are requesting; thus, their conditions-of-confinement claim is also moot.

19

20

21

22

23

11 Petitioners have moved for class certification (ECF No. 22), but any attempt

now to represent all inmates at FCC Lompoc is premature absent an order permitting a

24 class. As to the merits, Respondents will explain in their opposition that a class

certification request should be denied because it is questionable where a class

25 certification is allowable in a habeas action. Petitioners, moreover, will be unable to

demonstrate compliance with Fed. R. Civ. P. 23(a) and (b) because of their “different

26 crimes, sentences, outdates, disciplinary histories, age, medical history, places of

incarceration, proximity to infected inmates, availability of a home landing spot,

27 likelihood of transmitting the virus to someone at home detention, likelihood of violation

or recidivism, and danger to the community.” Money, 2020 WL 1820660, at *14-15.

28 These Petitioners, moreover, are not adequate class representatives given their

ineligibility for home confinement under the Attorney General’s memoranda.

44

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1

2. Petitioners’ Claims Are Not Properly Brought as a Habeas Petition and Are

2

Barred by the Prison Litigation Reform Act

3

Petitioners’ two claims, both of which seek to change their conditions of

4 confinement under the Eighth Amendment, are precluded by the PLRA. See ECF No. 16

5 (Corrected Compl.) at ¶¶ 105-122; 18 U.S.C. § 3626(a)(3)(A) (the PLRA applies to “any

6 civil action in federal court with respect to prison conditions”); Nettles v. Grounds, 830

7 F.3d 922, 934 (9th Cir. 2016) (prisoners must comply with the PLRA if a claim

8 challenges “any aspect of prison life” other than the “fact or duration of the conviction or

9 sentence”).

10

The PLRA also places strict limits on a district court’s ability to order the release

11 of inmates “in any civil action with respect to prison conditions,” and expressly

12 precludes a single district judge from doing so. 18 U.S.C. § 3626(a)(3)(B). That

13 prohibition applies to “any civil proceeding arising under Federal law with respect to the

14 conditions of confinement or the effects of actions by government officials on the lives of

15 persons confined in prison, but does not include habeas corpus proceedings challenging

16 the fact or duration of confinement in prison[.]” Id. at § 3626(g)(2) (emphasis provided).

17 Under the PLRA, a “prisoner release order” – which “includes any order, including a

18 temporary restraining order or preliminary injunctive relief, that has the purpose or effect

19 of reducing or limiting the prison population, or that directs the release from or

20 nonadmission of prisoners to a prison,” id. at § 3626(g)(4) – may “be entered only by a

21 three-judge court,” Id. at § 3626(a)(3)(B), and then only if certain conditions have been

22 met. Among other requirements, “no court shall enter a prisoner release order unless – (i)

23 a court has previously entered an order for less intrusive relief that has failed to remedy

24 the deprivation of the Federal right sought to be remedied through the prisoner release

25 order; and (ii) the defendant has had a reasonable amount of time to comply with the

26 previous court orders.” Id. at § 3626(a)(3)(A). Prior to entering a prisoner release order,

27 the three-judge panel must find, by clear and convincing evidence, “(i) crowding is the

28

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1 primary cause of the violation of a Federal right; and (ii) no other relief will remedy the

2 violation of the Federal right.” Id. at § 3626(a)(3)(E).

3

Congress enacted the PLRA to “revive the hands-off doctrine,” which was “a rule

4 of judicial quiescence derived from federalism and separation of powers concerns[,]” in

5 order to remove the federal judiciary from day-to-day prison management. Gilmore v.

6 California, 220 F.3d 987, 991, 996-97 (9th Cir. 2000) (referencing 141 Cong. Rec.

7 S14418, at S14418-19 (1995); H.R. Rep. No. 104-378, at 166 (1995); H.R. Rep. No.

8 104-21, at 24 n.2 (1995)). Section 3626 thus “restrict[s] the equity jurisdiction of federal

9 courts,” Gilmore, 220 F.3d at 999, and, “[b]y its terms . . . restricts the circumstances in

10 which a court may enter an order ‘that has the purpose or effect of reducing or limiting

11 the prison population,’” Brown v. Plata, 563 U.S. 493, 511 (2011). The PLRA’s

12 “requirements ensure that the ‘last remedy’ of a population limit is not imposed ‘as a

13 first step.’” Id. at 514 (quoting Inmates of Occoquan v. Barry, 844 F.2d 828, 843 (D.C.

14 Cir. 1988)). As noted by the Supreme Court, the “release of prisoners in large numbers

15 … is a matter of undoubted, grave concern.” Id. at 501. The PLRA requires courts to

16 give “substantial weight to any adverse impact on public safety or the operation of a

17 criminal justice system caused by” the release of prisoners. 18 U.S.C. § 3626(a)(1).

18

Petitioners’ claims cannot be characterized as a “habeas corpus proceeding[]

19 challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2).

20 Petitioners do not challenge the reason for their confinement, their convictions, the

21 length of their sentences, or a release based on good time credits. See Preiser v.

22 Rodriguez, 411 U.S. 475, 487 (1973) (describing such claims as “the core of habeas

23 corpus”). Rather, their claims are based on their conditions of confinement, alleging that

24 the BOP has not taken proper measures to counteract the COVID-19 pandemic at FCC

25 Lompoc. This case thus falls squarely within the PLRA as it is not a habeas proceeding

26 challenging the fact or duration of confinement. Accordingly, the PLRA does not permit

27 the district court to grant the relief Petitioners seek. See Money v. Pritzker, 2020 WL

28 1820660, at *14 (N.D. Ill. Apr. 10, 2020) (PLRA prevents courts from granting release

46

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1 of inmates based on prison conditions and COVID-19); Plata v. Newsom, 2020 WL

2 1908776, at *1, 9-11 (N.D. Cal. Apr. 17, 2020) (similar); Alvarez v. Larose, 2020 WL

3 2315807, at *4 (S.D. Cal. May 9, 2020) (denying TRO finding that COVID-19

4 conditions of confinement claims seek “prisoner release orders” under the PLRA which

5 prevents the district court from granting the relief sought); Livas, 2020 WL 1939583, at

6 *9 (dismissing COVID-19 habeas petition for lack of jurisdiction and noting that

7 amending future pleadings to assert claims for injunctive or prospective relief would be

8 futile in light of lack of factual allegations concerning exhaustion of remedies or that

9 other requirements for release of prisoners have been satisfied); Wragg v. Ortiz, No. 20-

10 5496, slip op. at 50-51 (D.N.J. May 27, 2020) (“Petitioners seek early release from

11 prison, but they do not do so on the basis that their convictions or sentences are invalid.

12 Instead, they seek injunctive relief based on unconstitutional conditions of confinement,

13 a type of challenge that neither the Supreme Court nor the Third Circuit has yet

14 recognized as a cognizable habeas claim.”); Maney, 2020 WL 2839423, at *11-12

15 (PLRA prohibited district courts from ordering the release of inmates to reduce the

16 prison population, and that the court “does not have the authority to order any relief that

17 would directly or indirectly require ODOC to reduce its prison population”).

18

Petitioners cite two cases that reached a contrary conclusion: Wilson v. Williams,

19 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020) and Martinez-Brooks v. Easter, 2020

20 WL2405350 (D. Conn. May 12, 2020).12 See ECF No. 18 at 60. These cases are

21 distinguishable because in those cases, petitioners had argued that no set of conditions of

22

23 12 On May 26, 2020, the Supreme Court denied the Department of Justice’s
24 application for stay of the April 22, 2020, preliminary injunction order on largely procedural grounds and without prejudice, noting that the district court had since entered
25 an order on May 19, 2020 imposing additional measures, and that the Government had not sought review of that order in the Sixth Circuit. See Order, Williams v. Wilson, No.
26 19A1047 (U.S. May 26, 2020). In response to a new application filed by the Government earlier this week, last night, on June 4, 2020, the Supreme Court granted the
27 Government’s request and stayed both the April 22 and May 19 orders “pending the disposition of the Government’s appeal in the United States Court of Appeals for the
28 Sixth Circuit and further order of the undersigned or of the Court.” Order, Williams v. Wilson, No. 19A1047 (U.S. Jun. 4, 2020). 47

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1 confinement would be constitutionally sufficient to protect them from COVID-19,

2 arguably transmuting their PLRA-barred conditions of confinement claims into habeas

3 claims challenging the fact of their detention. See Wilson, 2020 WL 1940882, at *3;

4 Martinez-Brooks, 2020 WL2405350, at *16.

5

Here, Petitioners are not arguing that no set of conditions would be

6 constitutionally sufficient, as they are seeking not only the implementation of release

7 procedures, but specific relief to improve their conditions, such as increased cleaning

8 supplies, hourly cleaning of surfaces, and for prison staff to wear personal protective

9 equipment. See ECF No. 18-3, [Proposed] Order Granting TRO at 5-7. As noted in

10 Alvarez, the fact that Petitioners are not arguing that it would be impossible to provide

11 constitutionally sufficient conditions places their claim squarely within the purview of

12 the PLRA. Alvarez, 2020 WL 2315807, at *3-4. Another important factual difference is

13 that in Wilson, the court based its decision, in large part, on the inadequate degree of

14 COVID-19 testing that had been performed at FCI Elkton, noting that FCI Elkton had

15 only 75 tests on hand for 2400 inmates. Wilson, 2020 WL 1940882, at *2. In contrast, at

16 FCI Lompoc, every inmate has been tested for COVID-19, and cohort as well as

17 individual testing continues through the USP, including the Camp.13 Cross Decl. ¶ 28.

18 Thus, these cases are factually distinguishable and lack persuasive value.

19

Also notable is the Ninth Circuit’s recent decision in United States v. Dade, 2020

20 WL 2570354, at *1 (9th Cir. May 21, 2020), denying an inmate’s release on bail pending

21 his appeal of the district court’s denial of his motion to vacate his sentence because of

22 COVID-19. The Ninth Circuit noted that under 18 U.S.C. § 3143(b), “release pending

23 appeal requires both a substantial showing on the merits and a showing that the

24 defendant is not likely to flee or pose a danger to the safety of any person or the

25 community.” Id. at *2 (emphasis in original, internal quotation marks omitted). The

26

27 13 As of June 5, 2020, over at 1,000 inmates had been tested at FCC Lompoc and
28 of those inmates, over 1,000 inmates who had previously tested positive for COVID-19 were deemed recovered. https://www.bop.gov/coronavirus/index.jsp. 48

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1 same is true here. Although Petitioners are using a civil vehicle to obtain release, they

2 are in the same position as the Dade defendant and requesting the same relief. Their

3 request should also be denied because “whether or not [the inmate] faces a risk from

4 COVID-19 in prison has no bearing on whether he will be a danger to the community if

5 released.” Id. Dade’s reasoning applies here, and is another reason to deny Petitioners’

6 TRO application.

7

In sum, Respondents respectfully request that the Court find that the PLRA

8 precludes Petitioners’ request for release because none of the prerequisites for a prisoner

9 release order have been satisfied. First, no court has previously entered an order for less

10 intrusive relief that has failed to remedy the deprivation of a federal right (nor has the

11 BOP had a reasonable amount of time to comply with any previously entered order) as

12 required under 18 U.S.C. § 3626(a)(3)(A). Second, no three-judge panel has made

13 findings, under the clear and convincing standard, that crowding is the primary cause of

14 the violation of a Federal right and that no other relief will remedy the violation of the

15 Federal right. Id. at § 3626(a)(3)(E). Third, this Court does not have the authority to

16 enter a prisoner release order as it is not a three-judge Court. Id. at § 3626(a)(3)(B).

17 Petitioners cannot circumvent the procedure mandated under the PLRA under the guise

18 of a habeas petition when they are seeking to challenge the conditions of their

19 confinement.

20

3. Petitioners Are Not Likely to Succeed on Their Eighth Amendment Claims

21

a. The Court Lacks Jurisdiction over Conditions-of-Confinement Claims

22

in a Habeas Action.

23

Petitioners seek relief based on their conditions of confinement, but this falls

24 outside the jurisdictional basis for the Complaint under the habeas statute. See Corrected

25 Compl. ¶¶ 21, 105-122. “Habeas is at its core a remedy for unlawful executive

26 detention,” and the “typical remedy for such detention is, of course, release.” Munaf v.

27 Geren, 553 U.S. 674, 693 (2008); see also INS v. St. Cyr, 533 U.S. 289, 301 (2001). See

28 Allen v. McCurry, 449 U.S. 90, 104 (1980) (“[T]he purpose of [the writ of habeas

49

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1 corpus] is not to redress civil injury, but to release the applicant from unlawful physical

2 confinement.”).

3

Courts uniformly recognize that a non-habeas civil action is the proper method of

4 challenging “conditions of confinement.” Preiser, 411 U.S. at 484-99. Indeed, the Ninth

5 Circuit has repeatedly held that claims addressing conditions of confinement are outside

6 the scope of the writ. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (“Habeas

7 corpus proceedings are the proper mechanism for a prisoner to challenge the ‘legality or

8 duration’ of confinement,” but not to “challeng[e] ‘conditions of . . . confinement’”);

9 Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) (“[T]he writ of habeas corpus is

10 limited to attacks upon the legality or duration of confinement.”); Nettles v. Grounds,

11 830 F. 3d 922, 934 n.11 (9th Cir. 2016) (habeas relief limited to claims challenging the

12 fact or duration of a prisoner’s conviction or sentence or would result in speedier release

13 from custody); Shook v. Apker, 472 F. App’x 702, 702-03 (9th Cir. 2012) (affirming

14 dismissal of petition raising claims of inadequate medical care under habeas).

15

Here, because Petitioners challenge their conditions of confinement—not the fact

16 or duration of their confinement—there is no jurisdiction to consider their claims under

17 the writ of habeas corpus. Petitioners bear the burden of asserting jurisdiction, but they

18 have not set forth how habeas corpus, “the traditional function of [which] is to secure

19 release from illegal custody[,]” entitles them to release from lawful custody.

20 DaimlerChrysler, 547 U.S. at 342 n.3 (2006); Preiser, 411 U.S. at 484-99; ECF No. 16

21 (Corrected Compl.) ¶¶ 21, 105-122. Though filed in the context of a public health crisis,

22 the Complaint requires application of the longstanding view that challenges to conditions

23 of confinement must be sought and exhausted in an administrative or civil rights action,

24 not in a habeas action. Petitioners’ two claims are explicitly titled “Unconstitutional

25 Conditions of Confinement in Violation of the Eighth Amendment to the U.S.

26 Constitution.” (ECF No. 16, ¶ 105, 117.) Such condition-of-confinement claims are not

27 cognizable in habeas, and therefore, Petitioners are not likely to succeed on the merits of

28 their Complaint.

50

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1

b. Petitioners Are Not Subject to an Unreasonable Risk of Harm.

2

In a conditions-of-confinement case like this, a prison official violates the

3 prohibition against “cruel and unusual punishments,” U.S. Const. Amend. VIII, “only

4 when two requirements”—one objective, the other subjective—“are met.” Farmer v.

5 Brennan, 511 U.S. 825, 834, 846 (1994). Petitioners establish neither.

6

The “objective prong” of the Eighth Amendment requires a showing that an

7 inmate has been deprived “of the minimal civilized measure of life’s necessities.” Id. at

8 834. When this deprivation involves a risk of harm, this prong requires the inmate to

9 show that “society considers the risk that the prisoner complains of to be so grave that it

10 violates contemporary standards of decency to expose anyone unwillingly to such a risk.

11 In other words, the prisoner must show that the risk of which he complains is not one

12 that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. 25, 36 (1993).

13

Petitioners cannot show that the BOP is depriving them of the “minimal civilized

14 measure of life’s necessities” or “violating contemporary standards of decency” in

15 addressing the risk of harm to inmates that COVID-19 presents. “A prison official’s duty

16 under the Eighth Amendment is to ensure reasonable safety.” Farmer, 511 U.S. at 844.

17 The current state of the COVID-19 pandemic exposes everyone—prisoner and non-

18 prisoner alike—to the risk of falling ill, and even death. FCC Lompoc’s response is

19 aligned with official guidance from leading world health authorities for mitigating the

20 risks associated with the pandemic. See Cross Decl. ¶¶ 15-16, 23-25, 29. Indeed,

21 Respondent Carvajal, the Director of the BOP, testified before a U.S. Senate committee

22 on June 2, 2020 that the BOP consults “on an almost daily basis with the CDC to ensure

23 we are implementing best practices based on science and sound judgment, as the

24 knowledge about and response to the pandemic continues to evolve.”14 Mr. Carvajal

25 further testified, “We have invited the CDC into our facilities and had them evaluate our

26

27

28

14 See https://www.judiciary.senate.gov/download/carvajal-allen-joint-testimony

(last accessed on June 3, 2020).

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1 work, which has been met with praise for our planning and implementation in the wake

2 of a very vexing virus.”

3

Petitioners argue that Respondents did not take reasonable steps to protect

4 prisoners at FCC Lompoc from the harm of COVID-19, but they ignore the evidence of

5 the numerous steps the BOP has taken in response to COVID-19. FCC Lompoc began

6 implementing risk-reduction practices before the Attorney General’s April 3, 2020

7 memorandum. See Engleman Decl. ¶¶ 54-63. FCC Lompoc has implemented the same

8 risk-reduction practices among the inmates and staff that are recommended for the

9 community at-large: physical distancing, limited movement, screening mechanisms,

10 providing soap for hand washing, frequently disinfecting high-touch areas, mask-

11 wearing, and quarantining or isolating individuals as appropriate. See id. ¶¶ 54-83. These

12 practices are the same measures that society deems capable of reducing the risk of

13 COVID-19 transmission, and thus reflect the manner in which “today’s society chooses

14 to tolerate” that risk. Helling, 509 U.S. at 36; Grinis, 2020 WL 2300313, at *3 (“These

15 affirmative steps may or may not be the best possible response to the threat of COVID-

16 19 within the institution, but they undermine an argument that the respondents have been

17 actionably deliberately indifferent to the health risks of inmates.”); Nellson, 2020 WL

18 3000961, at *8 (finding no likelihood of success on merits of Eighth Amendment

19 conditions-of-confinement claim due to COVID-19 and noting that “[c]ompliance with

20 CDC protocols does not demonstrate that defendants are disregarding a substantial risk

21 to inmate health or failing to respond reasonably to the risks of COVID-19”).

22

Notably, Petitioners have not shown that FCC Lompoc’s practices raises the risk

23 of death from COVID-19 at Lompoc substantially over the risk in the community at

24 large. See Hines v. Youssef, 2015 WL 164215, at *4 (E.D. Cal. Jan. 13, 2015) (“Unless

25 there is something about a prisoner’s conditions of confinement that raises the risk of

26 exposure substantially above the risk experienced by the surrounding communities, it

27 cannot be reasoned that the prisoner is involuntarily exposed to a risk the society would

28

52

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1 not tolerate.”). The death rate among infected individuals at FCC Lompoc is drastically

2 lower than the death rate with Los Angeles County, as of June 3, 2020.15

3

While it is impossible to eliminate all risk factors for transmission of COVID-19,

4 the facts Respondents have presented here make clear that any risks faced by those

5 inside FCC Lompoc are comparable to the general risks faced by the public. Petitioners

6 thus have not met their burden to show that the BOP has placed them in conditions of

7 confinement subjecting them to an objectively “unreasonable risk” of harm under the

8 Eighth Amendment. Helling, 509 U.S. at 36.

9

c. Petitioners Have Not Shown the BOP is Acting With Deliberate

10

Indifference.

11

Petitioners also fail to satisfy the subjective prong of their Eighth Amendment

12 claim, which requires them to show that Respondents “kn[ew] of and disregard[ed] an

13 excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. This test is

14 subjective, meaning “the official must both be aware of facts from which the inference

15 could be drawn that a substantial risk of serious harm exists, and he must also draw the

16 inference.” Id. The Eighth Amendment does not require perfect results. See id. at 844

17 (“prison officials who actually knew of a substantial risk to inmate health or safety may

18 be found free from liability if they responded reasonably to the risk, even if the harm

19 ultimately was not averted”).

20

To establish an entitlement to injunctive relief, Petitioners must show that BOP

21 officials currently are acting with deliberate indifference. “Deliberate indifference is a

22 high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). Where a

23 prisoner “seeks injunctive relief to prevent a substantial risk of serious injury from

24 ripening into actual harm, the subjective factor . . . should be determined in light of the

25

26 15 The death rate among inmates at FCC Lompoc was 0.37% (4 deaths for 1,070
27 cases), compared with the Los Angeles County death rate of 4.24% (2,531 deaths for 59,650 cases), as of June 4, 2020. Cf. BOP website
28 (https://www.bop.gov/coronavirus/index.jsp) with L.A. County website (http://publichealth.lacounty.gov/media/coronavirus/). 53

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1 prison authorities’ current attitudes and conduct[.]” Id. at 845 (internal quotation marks

2 omitted). “A difference of opinion does not amount to deliberate indifference to [a

3 plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

4 Deliberate indifference is not shown if the defendant has based his actions on a medical

5 judgment that either of two alternative courses of treatment would be medically

6 acceptable under the circumstances. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.

7 1996). Thus, Petitioners must show that today, Respondents are recklessly disregarding

8 an excessive risk to Petitioners’ safety, and that they will continue to do so “into the

9 future.” Farmer, 511 U.S. at 845.

10

Petitioners cannot make this showing. BOP officials have not acted with deliberate

11 indifference to the risk that COVID-19 poses to inmate populations; rather, they have

12 taken aggressive and appropriate measures to abate that risk. The record shows that the

13 BOP responded quickly to the evolving pandemic, designed a series of measures to

14 combat the disease, and continues to closely monitor the spread of the virus in order to

15 adjust to changing circumstances as the situation evolves. See Engelman Decl. ¶¶ 54-83.

16 In coordinating their response, BOP officials have relied on guidance provided by

17 leading health authorities regarding sanitation, physical distancing, testing, and other

18 preventative measures, and have taken actions consistent with those guidelines. Cross

19 Decl. ¶¶ 7-33. See Wragg, 2020 WL 2745247, at *21 (no Eighth Amendment violation

20 because there is “no evidence of Respondents’ liable state of mind”); Nellson, 2020 WL

21 1890670, at *6 (“Assuming that the objective component [of deliberate indifference] is

22 met, and that prison officials know of the risk of COVID-19, plaintiff has not

23 demonstrated that defendants have disregarded that risk.”); Money, 2020 WL 1820660,

24 at *18 (prisoner petitioners have “no chance of success” as to deliberate indifference

25 because of the measures taken by the Illinois Department of Corrections).

26

In fact, Petitioners’ own pleadings recount the numerous steps FCC Lompoc has

27 taken to combat COVID-19: conducted testing of hundreds of inmates (see ECF No. 16

28 at ¶¶ 2-3,); issued masks (ECF No. 16 at ¶ 54, ECF No. 18 at 29:8-12, 49:2-4); locked

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1 down the facility (ECF No. 16 at ¶¶ 47, 49, ); and isolated individuals with positive test

2 results for COVID-19 (ECF No. 16 at ¶¶ 47, 51). The existence of these facts, which

3 Petitioners acknowledge were taken, undercuts their bald assertions that FCC Lompoc

4 showed deliberate indifference to the threat to inmate health posed by COVID-19.

5 Respondents respectfully submit that the Court should reach the same conclusion as the

6 district court for New Jersey, in Wragg: “In the end, the ugly picture Petitioners paint of

7 FCI Fort Dix is not really [a] fair one. Petitioners’ bold statement that the mitigated

8 health risk at FCI Fort Dix is so grave that it violates ‘standards of decency for anyone to

9 be so exposed’ ignores almost the entire record before this Court.” Wragg, 2020 WL

10 2745247, at *22. See also id. (“That physical distancing is not possible in a prison

11 setting, as Petitioners urge, does not an Eighth Amendment claim make and, as such,

12 Petitioners are not likely to succeed on the merits.”).

13

To the contrary, these steps, in the face of this global pandemic, demonstrate an

14 extremely high degree of care. Petitioners thus cannot show that BOP officials are acting

15 with deliberate indifference, and cannot succeed on their Eighth Amendment claim. See

16 Farmer, 511 U.S. at 845 (“[P]rison officials who act reasonably cannot be found liable

17 under the Cruel and Unusual Punishments Clause.”); Lucero-Gonzalez v. Kris Kline,

18 No. CV-20-901, slip op. (D. Az. June 2, 2020) (“The very fact that Defendants have

19 enacted [] policies [in response to the risks posed by COVID-19] supports that they have

20 not been subjectively indifferent to the risks posed by COVID-19.”). In total, the

21 evidence demonstrates that Respondents acted with an extremely high degree of care,

22 and certainly were not acting with deliberate indifference that would transform

23 conditions at FCC Lompoc into an Eighth Amendment “punishment.” See Wilson v.

24 Seiter, 501 U.S. 294, 298, 300 (1991).

25

4. Petitioners Have Failed to Exhaust Administrative Remedies

26

The PLRA mandates that “[n]o action shall be brought with respect to prison

27 conditions under . . . any . . . Federal law, by a prisoner confined in any jail, prison, or

28 other correctional facility until such administrative remedies as are available are

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1 exhausted.” 42 U.S.C. § 1997e(a); Maronyan v. Toyota Motor Sales, USA, Inc., 658 F.3d

2 1038, 1041-42 (9th Cir. 2011) (PLRA exhaustion “requirement”). The PLRA’s

3 mandatory exhaustion requirement applies to “all inmate suits about prison life,” Porter

4 v. Nussle, 534 U.S. 516, 532 (2002), and “unexhausted claims cannot be brought in

5 court.” Jones v. Bock, 549 U.S. 199, 211 (2007); Woodford v. Ngo, 548 U.S. 81, 85

6 (2006) (“Exhaustion is no longer left to the discretion of the district court, but is

7 mandatory.”). This exhaustion requirement applies when a prisoner seeks injunctive

8 relief. Farmer, 511 U.S. at 847 (in cases seeking injunctive relief to address “current”

9 prison conditions, inmates are not “free to bypass adequate internal prison procedures

10 and bring their health and safety concerns directly to court”).

11

Here, FCC Lompoc follows a specific grievance process. See 28 C.F.R.

12 §§ 542.10-542.19. None of the Petitioners, however, has exhausted that process.

13 Engleman Decl. ¶ 11, Ex. B; ¶ 17, Ex. E; ¶ 24, Ex. H; ¶ 32, Ex. K; ¶ 39, Ex. N. And

14 because of their failure to exhaust, the Petition challenging the conditions of their

15 confinement should be denied.

16

Petitioners acknowledge that they have failed to exhaust administrative remedies

17 but argue that the exhaustion requirement should be “waived.” ECF No. 18 at 55-56.

18 Failure to exhaust, however, may be excused only an administrative grievance process is

19 not available. Ross v. Blake, 136 S. Ct. 1858 (2016). Under the PLRA, the Court has

20 recognized a remedy may not be available (1) where the remedy “operates as a simple

21 dead end—with officers unable or consistently unwilling to provide any relief to

22 aggrieved inmates;” (2) where the administrative scheme is “so opaque that it becomes,

23 practically speaking, incapable of use;” or (3) where “prison administrators thwart

24 inmates from taking advantage of a grievance process through machination,

25 misrepresentation, or intimidation.” Id. at 1853-54, 1859-60. None of those three narrow

26 exceptions apply here. See id. at 1856-67 (holding that the exhaustion requirement

27 “suggests no limits on an inmate’s obligation to exhaust—irrespective of any ‘special

28

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1 circumstances’” and the “mandatory language means a court may not excuse a failure to

2 exhaust, even to take such circumstances into account”).

3

To be sure, COVID-19 presents unusual circumstances, in which decisions

4 regarding prisoner grievances should be made expeditiously (as provided in FCC

5 Lompoc’s grievance procedures). But permitting prisoners to ignore the PLRA’s

6 mandatory exhaustion requirement, even in these unusual circumstances, would frustrate

7 Congress’s objective in the PLRA to “eliminate unwarranted federal-court interference

8 with the administration of prisons,” and “reduce the quantity and improve the quality of

9 prisoner suits.” Woodford, 548 U.S. at 93 (quoting Porter, 534 U.S. at 524). More

10 problematically, permitting prisoners to ignore the PLRA’s mandatory exhaustion

11 requirement would deprive prisons of “a fair opportunity to correct their own errors,” id.,

12 as Petitioners have done here by filing this lawsuit. As described above, the BOP’s

13 response to the pandemic has evolved. See Engleman Decl. ¶¶ 54-83. The rapidly

14 changing nature of this pandemic thus favors adherence to the administrative framework.

15

This was the conclusion reached in Nellson v. Barnhart, 2020 WL 1890670, at *4

16 (D. Col. Apr. 16, 2020). Nellson rejected the petitioner’s “dead-end argument” that he

17 was excused from exhaustion because “the grievance process can offer no possible relief

18 in time to prevent the imminent danger.” Id. (internal quotation marks omitted). Nellson,

19 however, found that “28 C.F.R. § 542.18 offers inmates an emergency procedure where,

20 ‘[i]f the Request is determined to be of an emergency nature which threatens the

21 inmate’s immediate health or welfare, the Warden shall respond no later than the third

22 calendar day after filing.” Id. Petitioners do not plead that they made any such request or

23 gave FCC Lompoc any chance to address their complaints before seeking relief before

24 this Court. Engleman Decl. ¶ 11, Ex. B (Carror-Torres); ¶ 17, Ex. E (Reed); ¶ 24, Ex. H

25 (Garcia); ¶ 32, Ex. K (Brown); ¶ 39, Ex. N (Fears).

26

Additionally, the Supreme Court defines availability as some relief, not all relief,

27 which an inmate seeks. See Ross, 136 S. Ct. at 1859. Because Petitioners have not even

28 attempted to utilize the administrative process, it is improper to argue here that the

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1 administrative remedy is “effectively unavailable.” See ECF No. 18 at 57. Petitioners’

2 contention that FCC Lompoc “is not currently allowing access to the grievance process”

3 is not supported by any evidence. See id. at 57:17 (emphasis omitted). To the contrary,

4 Respondents have submitted evidence that FCC Lompoc is providing the relief

5 Petitioners purportedly seek. See Engleman Decl. at ¶¶ 54-83 (robust health screening

6 measures for all inmates, staff, and visitors, cohorting and quarantine procedures,

7 increased sanitation and cleaning measures and supplies, and masks). Respondents

8 respectfully submit that the Court should not alter the mandatory requirements of the

9 PLRA for COVID-19 or any other special circumstances. See Ross, 136 S. Ct. at 1856-

10 57 (“[A] court may not excuse a failure to exhaust, even to take [special] circumstances

11 into account.”).16

12

Finally, each and every inmate at FCC Lompoc is able to file a motion for

13 immediate release under 18 U.S.C. § 3582(c)(1)(A) with his sentencing court. See

14 Arnold Decl. ¶¶ 2-3.17 Given that Petitioners can utilize the compassionate release

15 process, it is disingenuous to argue that they should be excused from the exhaustion

16 requirement under the PLRA. This is especially true because they do not contend that

17 they even attempted to utilize the BOP administrative process, including requesting

18 emergency relief under 28 C.F.R. § 542.18.

19

20

21

22 16 Respondents respectfully submit that the Court should find that Petitioners’
23 failure to exhaust weigh against Petitioner’s ability to succeed on the merits. Respondents acknowledge that the district court cases cited cases by Petitioners reached
24 a contrary conclusion (TRO Application at 53:20-54:25), but the Court should reject these findings based on the statutory framework, Supreme Court and Ninth Circuit
25 precedent, and the current conditions at FCC Lompoc.

26

17 Petitioners’ citations to U.S. v. Connell, 2020 WL 231858 (N.D. Cal., May 8,

2020) and United States v. Pippen, 2020 WL 2602140 (W.D. Wash. May 20, 2020)

27 illustrate that Petitioners could have filed a motion with their sentencing court for

compassionate release (as Connell and Pippen did) but have chosen not to do so and are

28 instead seeking inappropriate habeas relief in this action.

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1

Because Petitioners failed to exhaust their administrative remedies as required by

2 the PLRA, and because none of the exceptions to the exhaustion requirement applies in

3 this case, the Petition should be denied.18

4

B. Petitioners Fail to Show Irreparable Harm

5

In addition to not showing a likelihood of success on the merits, Petitioners fail to

6 demonstrate irreparable harm absent injunctive relief. Petitioners claim they face

7 irreparable harm unless immediately released based on the assumption that continued

8 imprisonment increases their risk of contracting COVID-19 and ultimately their risk of

9 death or serious injury. Yet an irreparable-harm finding requires much more than

10 assumptions.19 Winter, 555 U.S. at 22 (agreeing that the Ninth Circuit’s “possibility” of

11 irreparable harm was “too lenient”; the moving party must “demonstrate that irreparable

12 injury is likely in the absence of an injunction”) (emphasis in original, citations omitted).

13

Petitioners offer no concrete proof—just speculation—that release would redress

14 their complained-of harms. For instance, they seemingly take it as a given that release

15 would substantially reduce their chances of contracting COVID-19—this is despite the

16 fact that California and many other areas remain in a state of emergency. They also

17 suggest that, even if they contract COVID-19, they will have a better outcome outside of

18 FCC Lompoc. Petitioners have access to healthcare while incarcerated, and they have

19

20 18 Petitioners also cannot find relief under Declaratory Judgment Act, 28 U.S.C.
21 § 2201, because “Congress plainly intended declaratory relief to act as an alternative to the strong medicine of the injunction.” Steffel v. Thompson, 415 U.S. 452, 466, 471
22 (1974). The Administrative Procedures Act, 18 U.S.C. § 3625, is also inapplicable because it does not apply “to the making of any determination, decision or order” under
23 18 U.S.C. § 3621 (Place of Imprisonment). See, e.g., Boumediene v. Bush, 553 U.S. 723, 724 (2008). Finally, Article 1, § 9, cl. 2 of the Constitution, which refers to the
24 Suspension Clause, does not apply. The Suspension Clause provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion
25 or Invasion the public Safety may require it.” U.S. Constitution, Art. I, § 9, cl. 2. There is no allegation and no indication the writ has been suspended.
26 19 To the extent the Court finds that the BOP has already instituted all (or the most
27 important aspects) of the relief Petitioners request, that further undercuts their ability to show irreparable harm. Stated differently, the lack of injunctive relief cannot harm
28 Petitioners if the requested relief does not go beyond the BOP’s current screening, testing, and isolation procedures. 59

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1 not proven they will have access to medical care if released. While Petitioners may

2 speculate about their future healthcare options and a host of other issues, at this point one

3 of the few certainties is that release ensures no more guaranteed healthcare. Without

4 proof that they have access to healthcare, ordering their release could present a greater

5 risk to the Petitioners themselves of serious complications should they contract COVID-

6 19, as well as to those in their local communities who they could potentially infect if

7 they contract COVID-19.

8

Further, FCC Lompoc is employing the types of measures Petitioners purportedly

9 seek. Petitioners admit that the BOP is releasing inmates under the CARES Act. ECF

10 No. 18 at 16. Petitioners may disagree with the BOP’s determination in terms of the

11 number of inmates released, but the BOP should not be compelled to change its policies

12 to Petitioners’ liking. Further, FCC Lompoc has been taking an active measure in

13 addressing the COVID-19 pandemic. FCC Lompoc provides inmates with surgical and

14 cloth masks that they are required to wear. Cross Decl. ¶ 19.a; Engleman Decl. ¶ 71.a;

15 ECF 18 at 29 & 49. Staff are provided with surgical and cloth masks. Id. Soap is

16 provided at no cost to every inmate and inmates have access to sinks, water, and soap at

17 all times. Engleman Decl. ¶¶ 65.a-c, 71.a-c. Frequently touched surfaces are frequently

18 cleaned throughout the day with a designated disinfectant that kills human coronavirus.

19 Engleman Decl. ¶¶ 63, 65; ECF 18 at 26 & 29. This disinfectant is available to inmates

20 so that they can clean their cells on a regular basis. Cross Decl. ¶ 19.d.; Engleman Decl.

21 ¶ 71.a-c; ECF 18 at 26 & 29. Each housing unit has been stocked with cleaning supplies

22 inmates can use to clean their cells. Id. Staff have also been provided personal protective

23 equipment to be used in appropriate locations such as quarantined areas, isolation units,

24 and screening sites. Cross Decl. ¶¶ 19.a., 23. FCC Lompoc has sufficient PPE on hand,

25 including N-95 masks, surgical masks, and rubber gloves, on hand to meet its current

26 and anticipated needs, and can order more. Cross Decl. ¶ 21. For example, Petitioners

27 request that the Court order the BOP to provide inmates with masks and to instruct

28 inmates on their use (ECF No. 18-3 at 6-7), but the BOP has already appropriately

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1 implemented this measure. Cross Decl. ¶ 19.a. Petitioners thus have not demonstrated

2 how entering their requested injunction would provide any additional protection against

3 COVID-19, much less that they would suffer irreparable injury without such an

4 injunction.

5

C. The Balance of Equities and the Public Interest Do Not Favor

6

Petitioners

7

The last two TRO factors—focusing on the balance of equities and where the

8 public interest lies—tip sharply in Respondents’ favor. Notably, because injunctive relief

9 is being sought against the government, these remaining factors “merge” for analytical

10 purposes. Nken, 556 U.S. at 435; Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092

11 (9th Cir. 2014). In broad strokes, Petitioners want this Court to order the immediate

12 release of a substantial yet indefinite number of federal prisoners—ostensibly until the

13 COVID-19 risk dissipates, whenever that may be. They paint an exaggerated, bleak

14 picture of their current prison conditions and COVID-19 risk, but avoid key details about

15 what life will look like for them if they are released. For instance, Petitioners do not

16 prove they have viable housing options, for themselves or the putative class, or show that

17 housing is actually available, much less show that housing is available somewhere with a

18 lower COVID-19 risk. Similarly, Petitioners provide no proof showing they or the class

19 members—if released—will have sufficient access to food, medical care, personal-

20 hygiene products, and the many other things necessary for daily living. See Alvarez,

21 2020 WL 2315807 at *5 (“the public interest does not favor the immediate release of a

22 class of inmates who may lack viable housing outside of [the federal facility] and may be

23 deprived of access to food, means of personal hygiene, and medical care if released, all

24 at once, from the facility”).

25

The public interest, moreover, does not favor releasing criminals onto the streets

26 during a pandemic if they cannot prove they have the means to support themselves and

27 avoid making the pandemic worse in local communities. Instead, the government and the

28 public have a significant interest in keeping Petitioners (and other inmates like them)

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1 imprisoned during the pandemic—that is, unless and until the CDC changes its guidance

2 or the government chooses to voluntarily release an inmate (e.g., compassionate release).

3 See 18 U.S.C. § 3626(a)(2) (requiring courts to consider the “impact on public safety”

4 before granting preliminary injunctive relief to a prisoner); Money, 2020 WL 1820660,

5 at *20 (“Compelling a process to potentially release thousands of inmates on an

6 expedited basis could pose a serious threat to public safety and welfare. The risk of

7 recidivism comes into play, as do concerns about victims’ rights. The question is not

8 simply what is best for the inmates—the public has vital interests at stake, too.”); Wragg,

9 2020 WL 274547, at *23 (“Conspicuously absent in Petitioners’ analysis is any

10 meaningful discussion of the risk associated with a large scale release of inmates. What

11 would be the plan that addresses the safety and security of the communities to which

12 they are released? Is the proper supervision even available given that the current

13 COVID-19 crisis is just as real to the law enforcement officers in charge of safety and

14 supervision?”).

15

Petitioners here have been convicted of serious crimes. Carrer-Torres was

16 sentenced to 20 years imprisonment for carjacking involving sexual assault and carrying

17 a firearm in the commission of that violent crime. Engleman Decl. ¶ 8. Reed was

18 sentenced to 25 years imprisonment for armed bank robbery and armed carjacking. Id.

19 ¶ 14. Garcia was sentenced to 87 months imprisonment for possession of

20 methamphetamine with intent to distribute. Id. ¶ 21. Brown was sentenced to 12.5 years

21 imprisonment for conspiracy to manufacture and distribute PCP. Id. ¶ 29. Fears was

22 sentenced to 32 months imprisonment for violating his supervised release after being

23 convicted of conspiracy to possess with intent to distribute 15 kilograms of cocaine. Id.

24 ¶ 36. These Petitioners have thus been convicted of serious crimes. Their criminal

25 convictions distinguish their situation from Roman v. Wolf, 2020 WL 1952656 (C.D.

26 Cal. Apr. 23, 2020), which concerned civil immigration detainees. See ECF No. 10 at

27 38:11-15. As the Southern District of California court found, prisoners must be treated

28

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1 differently from civil immigration detainees, and their release may not be ordered under

2 the PLRA. Alvarez, 2020 WL 2315807 at *1.20

3

In formulating the policies and procedures in place at USP Lompoc discussed

4 above, the BOP relied on its expertise in running prisons and the guidance of health

5 experts—the objective being to combat the spread of the virus and take into account

6 critical safety concerns. As the guidance from the CDC and others has changed as more

7 is learned about COVID-19, so too has the BOP’s response. The BOP needs to maintain

8 that flexibility during the pandemic so that it may continue to protect all of its

9 constituents. Turner, 482 U.S. at 84 (“courts are ill equipped to deal with the

10 increasingly urgent problems of prison administration”); Alvarez, 2020 WL 2315807, at

11 *5 (issuing injunctive relief would “unfairly intrud[e] on Defendants’ operation of the

12 prison system and defy[] Congress’s clear policy determinations regarding challenges to

13 prison conditions and prisoner release orders”). In sum, the public interest factors weigh

14 against granting Petitioners’ application.

15

D. The Requested Relief Does Not Satisfy the Requirements of 18 U.S.C.

16

§ 3626 (a) and (b)

17

Finally, even if the petitioners could otherwise satisfy the requirements for

18 prospective relief, they cannot make the heightened showing necessary to obtain relief

19 under 18 U.S.C. § 3626(a) and (b). This statute reads, in relevant part:

20

(a) Requirements for relief.--

(1) Prospective relief.--(A) Prospective relief in any civil action with

21

respect to prison conditions shall extend no further than necessary to correct

22

the violation of the Federal right of a particular plaintiff or plaintiffs. The

court shall not grant or approve any prospective relief unless the court finds

23

that such relief is narrowly drawn, extends no further than necessary to

24

correct the violation of the Federal right, and is the least intrusive means

necessary to correct the violation of the Federal right. The court shall give

25

substantial weight to any adverse impact on public safety or the operation of

26

a criminal justice system caused by the relief.

. . .

27

28

20 In fact, the Honorable Terry Hatter, who is adjudicating the Roman case,

rejected Petitioners’ attempt to have this action transferred to his court. ECF No. 8.

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1

(2) Preliminary injunctive relief.--In any civil action with respect to

2

prison conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive

3

relief. Preliminary injunctive relief must be narrowly drawn, extend no

4

further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that

5

harm. The court shall give substantial weight to any adverse impact on

6

public safety or the operation of a criminal justice system caused by the preliminary relief . . . Preliminary injunctive relief shall automatically expire

7

on the date that is 90 days after its entry, unless the court makes the findings

8

required under subsection (a)(1) for the entry of prospective relief and makes the order final before the expiration of the 90-day period.

9

10

“Section 3626(a) ... operates simultaneously to restrict the equity jurisdiction of

11 federal courts and to protect the bargaining power of prison administrators—no longer

12 may courts grant or approve relief that binds prison administrators to do more than the

13 constitutional minimum.” Gilmore v. People of the State of California, 220 F.3d 987,

14 1005 (9th Cir. 2000). Indeed, the statute mandates that the scope of preliminary

15 injunctive relief “heel close to the identified [constitutional] violation.” Id.

16

Here, the Petitioners have not even acknowledged, much less satisfied these

17 statutory requirements. They have made no effort to explain why any of the measures,

18 whether for home confinement consideration or for the various measure they want

19 implemented at the facilities, “are narrowly drawn, exten[d] no further than necessary to

20 correct the violation of the Federal right, and [are] the least intrusive means necessary to

21 correct the violation of the Federal right.” Nor do they demonstrate why any of these

22 measures are “necessary to correct the violation of the Federal right of a particular

23 plaintiff or plaintiffs.”

24

As demonstrated above, Petitioners cannot demonstrate a violation of the Eighth

25 Amendment in these circumstances and thus, they necessarily cannot demonstrate that

26 any of the relief they have requested satisfies the heightened requirements for

27 prospective relief. Similarly, Petitioners’ preference for a set of measures to address the

28 COVID-19 pandemic at FCC Lompoc above and beyond the measures recommended by

64

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1 the CDC can neither establish a violation of the Eighth Amendment nor satisfy the

2 statutory requirements for the issuance of preliminary relief.

3 V. CONCLUSION

4

For these reasons, the Respondents respectfully request that the Court deny the

5 TRO application.

6 7 Dated: June 5, 2020 8 9 10 11 12 13 14 15 16 17 18

Respectfully submitted,
NICOLA T. HANNA United States Attorney DAVID M. HARRIS Assistant United States Attorney Chief, Civil Division JOANNE S. OSINOFF Assistant United States Attorney Chief, General Civil Section
/s/ Keith M. Staub KEITH M. STAUB CHUNG H. HAN JASMIN YANG DAMON A. THAYER PAUL B. GREEN Assistant United States Attorney
Attorneys for Respondents

19

20

21

22

23

24

25

26

27

28

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1

DECLARATION AND CERTIFICATION OF RECORDS

2

OF JAMES ENGLEMAN

3

I, James Engleman, do hereby declare and state the following:

4 1. I am the Associate Warden with the Federal Bureau of Prisons (“BOP”) at the

5 Federal Correctional Complex in Lompoc, California (“FCC Lompoc”), and have been

6 working here since February 2017, and have served as Acting Complex Warden at

7 various times during my tenure here. As the Associate Warden, I am responsible for

8 exercising control and supervision of various aspects of the institution's functions such as

9 programs, operations, medical, mental health, clinical programs, custody, transportation,

10 industries and education. In this position, I have worked with Executive Staff overseeing

11 sound correctional management of smaller scale infectious disease outbreaks, like the

12 mumps in 2019. Currently, I oversee Food Service, Education, Recreation, Religious

13 Services, and Reentry Affairs Complex-wide. As advisors and assistants to the Warden,

14 Associate Wardens play a major role in the determination and establishment of policies

15 and programs involved in the institutional operations.

16 2. I have been employed by the BOP in positions of increasing responsibility, since

17 June 1999. I have held positions of increasing authority in the BOP including as

18 Associate Warden, FCI Englewood, Colorado; Executive Assistant, FCC Victorville,

19 California; Unit Manager, USMCFP Springfield, Missouri: Unit Manager, FPC

20 Alderson, West Virginia; Case Manager, USP Lompoc, California; Correctional Officer,

21 FCI Lompoc, California.

22 3. As part of my official duties as the Associate Warden, in collaboration with the

23 Warden, I manage and direct day to day programming and operations at FCC Lompoc. I

24 have been working in concert with the Acting Wardens at FCC Lompoc to implement

25 and facilitate the Complex’s response to COVID-19.

26 4. With respect to COVID-19, specifically, I am involved on a daily basis in the

27 identification, planning, and implementation of all BOP directives for addressing

28 COVID-19 at FCC Lompoc. I have knowledge of both the BOP’s national directives

1

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1 relating to COVID-19 and the additional and / or individualized steps that FCC Lompoc,

2 has taken to combat and address COVID-19. Accordingly, through the course of my

3 official duties, I have personal knowledge regarding the numerous measures discussed

4 below, that have been implemented both BOP-wide and at FCC Lompoc to provide for

5 the safe and orderly running of the facility during the national pandemic and access to

6 records maintained by the BOP relating to the individual Petitioners. The facts set forth

7 in this Declaration are based on my personal knowledge and based on my review of the

8 official records of the BOP which are maintained in the ordinary course of its business.

9 5. FCC Lompoc is a federal prison complex which houses male inmates at a United

10 States Penitentiary (USP Lompoc or “LOM”) which operates as a medium security

11 institution and has a minimum security satellite camp including a farm as well as Federal

12 Correctional Institution (FCI Lompoc or “LOF”) which operates as a low security

13 institution. FCC Lompoc is situated approximately 150 miles north of Los Angeles and

14 53 miles north of Santa Barbara, in the heart of California’s Central Coast. The inmates

15 designated to FCC Lompoc have imposed sentences as short as months and as long as

16 Life imprisonment. They range in age from 19 to 80. Their convictions are for a wide

17 variety of offenses including drug related charges, sex offenses, weapons charges,

18 fraud/bribery & extortion, and homicide among others.

19 6. USP Lompoc has units that are physically divided into 2-man cells with walls and

20 cell doors and some of the units have grills for doors. Each cell has a sink/water

21 fountain and toilet inside. FCI Lompoc and all three buildings that comprise the Camp’s

22 housing facilities are structured dormitory style. Some of the areas have open bay

23 configurations, while others are structured with smaller 8 – 10 man rooms. There are

24 community restrooms with sinks, toilet facilities, and showers.

25 7. FCC Lompoc has a population of 2,599 inmates as of June 3, 2020.

26

a. USP Lompoc's current population as of June 3, 2020, consists of 1,124 inmates

27

at the medium security facility. Of these, 250 are actually inmates from the

28

FCI housed at the USP temporarily. Therefore, the population of USP inmates

2

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1

is presently 874. There are presently 474 inmates at the Camp, with 323 of

2

those inmates at the South Camp and 151 inmates at the North Camp.

3

i. Of the population as of June 3, 2020, 33 inmates in the medium security

4

facility (including the 250 FCI inmates) or 2.9% are over age 65 and 38

5

inmates or 8.0% at the Camp are over age 65.

6

ii. The USPs population has been steadily decreasing. The average daily

7

population of the USP was 1,058 in January, 1,012 in February, in March

8

it was 980, and in April it was 986 while the average daily population at

9

the Camp, including Camp N, was 507 in January 2020, 522 in February,

10

525 in March and 521 in April.

11

b. FCI Lompoc's population as of June 3, 2020 was 1,000 inmates. Notably, 250

12

of FCI Lompoc’s inmates are being housed at USP Lompoc, bringing the

13

actual population to 1,250 inmates which is 89 fewer inmates than were in

14

population on average in January of 2020.

15

i. There are 62 inmates, or 6.2%, who are aged 65 or over at FCI Lompoc.

16

ii. The FCIs population has decreased significantly since January. In January

17

was 1,339, February the average daily population was 1,314, in March it

18

was 1,293, and in April it was 1,240.

19 I. PLAINTIFFS-PETITIONERS

20 A. Yonnedil Carror-Torres, Reg. No. 41928-069

21 8. Yonnedil Carror-Torres, Reg. No. 41928-069, is a 24-year old male presently

22 entrusted to the custody of the BOP for service of an aggregate 240-month sentence of

23 imprisonment imposed in the District of Puerto Rico after having been convicted of

24 violating Title 18 U.S.C. § 2119, by carjacking with serious bodily injury; that is the

25 sexual assault of victim A.P.R., and aiding and abetting for which he was sentenced to

26 120 months incarceration and violating 18 U.S.C. § 924(c)(1)(a)(ii) by carrying a firearm

27 in furtherance of a crime of violence and aiding and abetting for which he was sentenced

28 to a consecutive term of 120 months incarceration in case number 3:15-CR-00697-1

3

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 4 of 229 Page ID #:913
1 (FAB). A copy of the SENTRY Print-out Public Information Inmate Data for inmate 2 Carror-Torres which documents this information is provided as Exhibit A. Pursuant to a 3 review of the Presentence Investigation Report prepared in the case for which he is 4 incarcerated, the offense for the charges Carror-Torres has been convicted of involved 5 him pointing a handgun at victim 1 while telling her to undress, “introduce[ing] his 6 fingers inside Victim’s vagina several times” and “forcefully introduce[ing] his penis 7 inside Victim 1’s mouth” forcing her to have oral sex for approximately 5 minutes. 8 There are two victims in his current criminal case who participate in the Department of 9 Justice’s Victim Notification System. 10 9. Carror-Torres is currently designated to the Federal Correctional Complex, USP 11 Lompoc (“LOM”). See Ex. A at 1. He has been housed at USP Lompoc since his 12 arrival on December 27, 2019. He was assigned to K Unit except for a brief period 13 between April 23, 2020 and May 7, 2020 when he was in the House H. His projected 14 release date is 08-07-2023, assuming he earns all available good conduct time. Ex. A at 15 1. He has completed 41% of his sentence, or 7 years, 1 month and 4 days as of June 2, 16 2020, assuming he earns all possible good conduct time prior to his release. Ex. A at 3. 17 10. Carror-Torres has not filed any administrative remedies while incarcerated. A 18 copy of the SENTRY Print-out Administrative Remedy Generalized Retrieval for inmate 19 Carror-Torres is provided as Exhibit B. 20 11. Upon entering USP Lompoc, inmate Carror-Torres was provided a copy of the 21 Admissions and Orientation (A & O) Handbook which includes information on how to 22 pursue administrative remedies and he attended A & O Training at which time he was 23 also verbally advised how to submit a Request for Administrative Remedy. 24 12. Petitioner Carror-Torres has received disciplinary sanctions for among other 25 things fighting and possession of amphetamines while incarcerated. Attached as Exhibit 26 C is a SENTRY Print-out Inmate Discipline Data showing his disciplinary history. 27 13. He has been scored as having a HIGH RISK RECIDIVISM LEVEL using the 28 Prisoner Assessment Tool Targeting Estimated Risk and Need (PATTERN).
4

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 5 of 229 Page ID #:914
1 B. Vincent Reed, Reg. No. 27173-016 2 14. Vincent Reed, Reg. No. 27173-016, is a 54-year old male presently entrusted to 3 the custody of the BOP for service of a reduced sentence of imprisonment of 300 months 4 imposed by the District of Columbia after having been convicted of violating Title 18 5 U.S.C. § 2113(a) & (d), Armed Bank Robbery, Violation of 22 D.C. Code § 2803(a)(1) 6 and (b)(1), Armed Carjacking, and 22 D.C. Code § 303, Destroying Property (Felony) in 7 case number 03-CR-00560. A copy of the SENTRY Print-out Public Information 8 Inmate Data for inmate Reed which documents this information is provided as Exhibit 9 D. Pursuant to a review of the Presentence Investigation Report prepared in the case for 10 which he is incarcerated, the offense conduct for the charges Reed has been convicted of 11 involved him pointing a handgun at a teller and demanding money and during his escape 12 he carjacked a pickup truck by pointing a gun at the driver. 13 15. Reed is currently designated to the Federal Correctional Complex, USP Lompoc 14 (“LOM”). He has been housed at USP Lompoc since his arrival on November 7, 2016. 15 Recently, he was assigned to F Unit except for a brief period between March 30, 2020 16 and April 2, 2020, when he was in the Special Housing Unit for isolation and was then 17 transferred to and remained at H Unit from April 2, 2020 to April 17, 2020. 18 16. His projected release date is 08-05-2025, assuming he earns all available good 19 conduct time. Ex. D at 1. He has completed 76.1% of his sentence, or 16 years and 6 20 months as of June 2, 2020, assuming he earns all possible good conduct time prior to his 21 release. Ex. D at 3. 22 17. Reed has filed administrative remedies while incarcerated, but he has not filed nor 23 exhausted any issues relating to his conditions of confinement or medical concerns. He 24 submitted an appeal denying his request the BOP file a motion on his behalf for 25 reduction of his sentence on May 23, 2020. A copy of the SENTRY Print-out 26 Administrative Remedy Generalized Retrieval for inmate Reed is provided as Exhibit E. 27 18. Upon entering USP Lompoc, inmate Reed was provided a copy of the 28 Admissions and Orientation (A & O) Handbook which includes information on how to
5

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 6 of 229 Page ID #:915
1 pursue administrative remedies and he attended A & O Training at which time he was 2 also verbally advised how to submit a Request for Administrative Remedy. 3 19. Petitioner Reed has received disciplinary sanctions for among other things 4 fighting and possessing a dangerous weapon while incarcerated. Attached as Exhibit F is 5 a SENTRY Print-out Inmate Discipline Data showing his disciplinary history. 6 20. He has been scored as having a MEDIUM RISK RECIDIVISM LEVEL using the 7 Prisoner Assessment Tool Targeting Estimated Risk and Need (PATTERN). 8 C. Felix Samuel Garcia, Reg. No. 46693-298 9 21. Felix Samuel Garcia, Reg. No. 46693-298, is a 35-year old male presently 10 entrusted to the custody of the BOP for service of an 87-month imposed by the Southern 11 District of California after having been convicted of violating Title 21 U.S.C. § 841(a)(1) 12 for possession of methamphetamine with intent to distribute in case number 14-CR13 00657. A copy of the SENTRY Print-out Public Information Inmate Data for inmate 14 Garcia which documents this information is provided as Exhibit G. 15 22. Garcia is currently designated to the Federal Correctional Complex, Federal 16 Correctional Institution in Lompoc, California (FCI Lompoc or “LOF”). See Ex. G at 1. 17 He was housed at FCI Lompoc from his arrival on June 19, 2017, through May 7, 2020, 18 when he was transferred to M Unit at USP Lompoc after having tested negative for 19 COVID-19. Recently, at FCI Lompoc he was assigned to J Unit and House U until his 20 transfer to USP Lompoc where he was housed in M Unit. 21 23. His projected release date is 11-06-2020, assuming he earns all available good 22 conduct time and successfully completes the community portion of the drug treatment 23 program under 18 U.S.C. § 3621(e). Ex. G at 1. He has completed 76.8% of his 24 sentence, or 4 years and 9 months as of June 2, 2020, assuming he earns all possible 25 good conduct time prior to his release. Ex. G at 3. 26 24. Garcia has filed administrative remedies while incarcerated, but he has not filed 27 nor exhausted any issues relating to his conditions of confinement or medical concerns at 28
6

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 7 of 229 Page ID #:916
1 FCC Lompoc. A copy of the SENTRY Print-out Administrative Remedy Generalized 2 Retrieval for inmate Garcia is provided as Exhibit H. 3 25. Upon entering FCI Lompoc, inmate Garcia was provided a copy of the 4 Admissions and Orientation (A & O) Handbook which includes information on how to 5 pursue administrative remedies and he attended A & O Training at which time he was 6 also verbally advised how to submit a Request for Administrative Remedy. 7 26. Petitioner Garcia has received disciplinary sanctions for refusing to obey an order 8 while incarcerated. Attached as Exhibit I is a SENTRY Print-out Inmate Discipline Data 9 showing his disciplinary history. 10 27. He has been scored as having a LOW RISK RECIDIVISM LEVEL using the 11 Prisoner Assessment Tool Targeting Estimated Risk and Need (PATTERN). 12 28. Petitioner is close to release and has been considered for prelease confinement 13 and has a tentative residential reentry center (RRC) transfer date of July 9, 2020. The 14 location of the designation is law enforcement sensitive information. He has a prior 15 conviction for having sex with a minor 3 + years his younger in San Diego County in 16 2003, so he is subject to sex offender notifications. 17 D. Andre Brown, Reg. No. 54460-097 18 29. Andre Brown, Reg. No. 54460-097, is a 54-year old male presently entrusted to 19 the custody of the BOP for service of an 150-month imposed by the Central District of 20 California after having been convicted of violating Title 21 U.S.C. §§ 21 841(a)(1),(b)(1)(B)(iv) & 846 for Conspiracy to Manufacture, Distribute, and possess 22 with Intent to Distribute Phencyclidine (PCP), and Illegally Possess a Listed Chemical 23 and Distribution and Possession with Intent to Distribute PCP in case number 13-CR24 00822. A copy of the SENTRY Print-out Public Information Inmate Data for inmate 25 Brown which documents this information is provided as Exhibit J. 26 30. Brown is currently designated to USP Lompoc (“LOM”). See Ex. J at 1. He was 27 housed at FCI Lompoc from his arrival on June 3, 2019. Brown has been assigned to 28 the Special Housing Unit at USP Lompoc since February 2, 2020, pending investigation
7

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 8 of 229 Page ID #:917
1 of possible misconduct which resulted in no disciplinary action being taken but did result 2 in the decision being made to transfer him to another facility. Inmates in administrative 3 detention in the Special Housing Unit at USP Lompoc do not have access to TRULINKS 4 and are restricted to one phone call a month. He is pending an anticipated transfer to 5 another facility that was scheduled to be effective on March 5, 2020, but which did not 6 take place as BOP stopped all routine movement in March. The location of the 7 designation is law enforcement sensitive information. It is anticipated the move will 8 occur once BOP resumes inmate movement. 9 31. Petitioner Brown’s projected release date is 10-06-2024, assuming he earns all 10 available good conduct time. Ex. J at 1. He has completed 59.2% of his sentence, or 6 11 years, 3 months, and 21 days as of June 2, 2020, assuming he earns all possible good 12 conduct time prior to his release. Ex. J at 3. 13 32. Brown has filed administrative remedies while incarcerated, but he has not filed 14 nor exhausted any issues relating to his conditions of confinement or medical concerns at 15 FCC Lompoc. A copy of the SENTRY Print-out Administrative Remedy Generalized 16 Retrieval for inmate Brown is provided as Exhibit K. 17 33. Upon entering FCI Lompoc, inmate Brown was provided a copy of the 18 Admissions and Orientation (A & O) Handbook which includes information on how to 19 pursue administrative remedies and he attended A & O Training at which time he was 20 also verbally advised how to submit a Request for Administrative Remedy. 21 34. Petitioner Brown has received disciplinary sanctions for refusing to obey an order 22 and insolence while incarcerated. Attached as Exhibit L is a SENTRY Print-out Inmate 23 Discipline Data showing his disciplinary history. 24 35. He has been scored as having a LOW RISK RECIDIVISM LEVEL using the 25 Prisoner Assessment Tool Targeting Estimated Risk and Need (PATTERN). 26 E. Sean Fears, Reg. No. 34183-060 27 36. Sean Fears, Reg. No. 34183-060, is a 50-year old male presently entrusted to the 28 custody of the BOP for service of a 32-month supervised release violation sentence
8

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 9 of 229 Page ID #:918
1 imposed by the Northern District of Ohio after having been convicted of violating Title 2 21 U.S.C. §§ 841(a)(1) & 846 for Conspiracy to Possess with Intent to Distribute 15 3 Kilograms of Cocaine in case number 91-CR-00331. A copy of the SENTRY Print-out 4 Public Information Inmate Data for inmate Fears which documents this information is 5 provided as Exhibit M. 6 37. Fears is currently designated to USP Lompoc (“LOM”). See Ex. M at 1. He has 7 been housed in House A at the USP Lompoc satellite camp prison since his arrival on 8 August 16, 2018. Fears is pending an anticipated transfer to another facility that was 9 supposed to be effective March 3, 2020, which did not take place as all movement was 10 stopped in the Agency. The location of the designation is law enforcement sensitive 11 information and has been redacted. It is anticipated the move will occur once BOP 12 resumes inmate movement. 13 38. Petitioner Fears’ projected release date is 08-19-2021, assuming he earns all 14 available good conduct time. Ex. M at 1. He has completed 46.7% of his sentence, or 1 15 year and 23 days as of June 2, 2020, assuming he earns all possible good conduct time 16 prior to his release. Ex. M at 3. 17 39. Fears has filed administrative remedies while incarcerated under prior sentences, 18 but he has not filed nor exhausted any issues relating to his conditions of confinement or 19 medical concerns at FCC Lompoc. A copy of the SENTRY Print-out Administrative 20 Remedy Generalized Retrieval for inmate Fears is provided as Exhibit N. 21 40. Upon entering FCI Lompoc, inmate Fears was provided a copy of the Admissions 22 and Orientation (A & O) Handbook which includes information on how to pursue 23 administrative remedies and he attended A & O Training at which time he was also 24 verbally advised how to submit a Request for Administrative Remedy. 25 41. Petitioner Fears has received disciplinary sanctions in the past, but no discipline 26 has been imposed during his current period of incarceration. Attached as Exhibit O is a 27 SENTRY Print-out Inmate Discipline Data showing his disciplinary history. 28
9

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 10 of 229 Page ID #:919

1 He has been scored as having a LOW RISK RECIDIVISM LEVEL using the Prisoner

2 Assessment Tool Targeting Estimated Risk and Need (PATTERN).

3 F. Certified Copies of Judgments

4 42. Certified copies of the Judgments which form the bases for the Petitioners’

5 current detention are provided as Exhibits P, Q, R, S, and T to this declaration for

6 inmates Brown, Fears, Garcia, Reed, and Carror-Torres, respectively.

7 II. ADMINISTRATIVE GRIEVANCE PROCEDURES

8 43. Upon arrival at FCI Lompoc, every inmate is provided an Admission and

9 Orientation Handbook during their intake screening. This Handbook includes

10 information on the BOP’s Administrative Remedy Program. In addition, each inmate is

11 required to attend an Admission and Orientation Program. One of the class lectures

12 specifically deals with the BOP’s “Administrative Remedy Program” and every inmate

13 is advised how to participate in the administrative remedy process.

14 44. The BOP has a four-tiered administrative remedy process for inmates challenging

15 issues related to their imprisonment has been promulgated as Ruled language and

16 codified in the Code of Federal Regulations. 28 C.F.R. §§ 542.10, et. seq. Additionally,

17 the BOP has issued Program Statement 1330.18, Administrative Remedy Program

18 (January 6, 2014) which includes the regulations and the BOP’s implementing language.

19 A copy of the Program Statement which has the rules language in bold blue print is

20 attached as Exhibit U.

21

a. First, the inmate can seek informal resolution of the issue of concern at her

22

institution of confinement (via a BP-8 form). 28 C.F.R. § 542.13; Ex. P at 4.

23

b. If informal resolution is not successful, the inmate may file a formal request

24

with the Warden (via a BP-9 form). 28 C.F.R. § 542.14; Ex. P at 4 - 6. “The

25

deadline for completion of informal resolution and submission of a formal

26

written Administrative Remedy Request, on the appropriate form (BP-9), is 20

27

calendar days following the date on which the basis for the Request occurred.”

28

Id. There is an exception in policy that allows an inmate to seek relief directly

10

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1

at the Regional level when the issue is “sensitive.” 28 C.F.R. § 542.14(d); Ex.

2

U at 6. Such requests are only appropriate if the inmate “reasonably believes

3

the issue is sensitive and the inmate’s safety or well-being would be placed in

4

danger if the Request became known at the institution.” Id.

5

c. If the inmate is unsatisfied with the response or no response is timely received,

6

the inmate may then appeal first to the Regional Director, within 20 days of

7

receiving the Warden’s response (via a BP-10 form).

8 45. If the inmate is unsatisfied with the response or no response is timely received

9 from the Region, then he may pursue a final appeal to the Inmate Appeal Administrator

10 in the office of General Counsel in Washington, D.C. (via a BP-11 form). 28 C.F.R. §

11 542.15. Pursuant to 28 C.F.R. § 542.15(a), an “[a]ppeal to the General Counsel is the

12 final administrative appeal.” Thus, the administrative process is not complete until the

13 Office of the General Counsel (“OGC”) replies, on the merits, to the inmate’s appeal, or

14 if the response by OGC is not forthcoming within the time allotted for reply. See 28

15 C.F.R. § 542.18.

16 46. A review of the Administrative Remedy Generalized Retrieval reports for each of

17 the named Petitioners demonstrate that none of the Petitioners have submitted or

18 exhausted administrative remedies regarding conditions of confinement at FCC Lompoc

19 or raising any other relevant concern.

20 III. HOME CONFINEMENT UNDER THE CARES ACT

21 47. The Coronavirus Aid, Relief, and Economic Security Act ("CARES Act"), PL

22 116-136, 134 Stat 281 (Mar. 27, 2020) expanded BOP's home confinement authority

23 under limited conditions. Specifically, as to Home Confinement, § 12003(b)(2) provides

24 that during a "covered emergency period" (CEP), if the Attorney General finds that

25 "emergency conditions will materially affect the functioning of the Bureau," the BOP

26 Director may lengthen the maximum amount of time a prisoner spends in home

27 confinement "under the first sentence of section 3624(c)(2)," as the Director "determines

28 appropriate." Through a letter dated April 3, 2020, the Attorney General made such a

11

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 12 of 229 Page ID #:921

1 determination as to "FCI OAKDALE, FCI DANBURY, FCI ELKTON, AND AT

2 OTHER SIMILARLY SITUATED BOP FACILITIES WHERE COVID-19 IS

3 MATERIALLY AFFECTING OPERATIONS" and instructed BOP to maximize

4 appropriate transfers of "all inmates whom you deem suitable candidates for home

5 confinement."

6 48. Provided as Exhibit V includes copies of the Assistant Directors’ guidance

7 memoranda issued on April 22, 2020 which was rescinded and re-issued on May 8,

8 2020, respectively, implementing the Attorney General’s instructions to determine

9 suitability for home confinement. In implementing this guidance, the BOP determined

10 suitability for home confinement includes a number of factors and gave priority to

11 certain classes of individuals. None of the Petitioners fall within the class of individuals

12 to be prioritized and none have been formally considered for home confinement at this

13 time.

14 49. Included among the factors that must be assessed is whether "the inmate's primary

15 offense is not violent, a sex offense or terrorism related;" among others. Ex. V at 1; see

16 also, Ex. V at 4. The phrase "offense is not violent" is not defined in the memorandum,

17 but the BOP has issued Program Statement 5162.05, Categorization of Offenses (March

18 16, 2009) that assists staff in "implementation of various Federal Bureau of Prisons

19 policies and programs" that call for the identification of violent offenses. Exhibit W is a

20 copy of this policy.

21

a. The BOP’s list of offenses that constitute a crime of violence in all cases

22

include 18 U.S. C. §§ “2113(d),(e) bank robbery and incidental crimes” and “2119

23

crimes involving motor vehicles” which are offenses for which two Petitioners are

24

convicted. Additionally, violations of 18 U.S.C. § 924, penalties for firearms

25

violations may be violent depending on the underlying offense. Inmate Reed also

26

has a medium risk of recidivism score. Thus, as Petitioners Carror-Torres and

27

Reed are convicted of offenses the BOP finds includes violence, they are

28

unsuitable for CARES Act home confinement.

12

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1

b. Similarly, two of the Petitioners have sexual offenses which render them

2

unsuitable for home confinement. First, Carror-Torres was convicted of taking

3

a motor vehicle with the intent to cause death or serious bodily harm by force,

4

violence, and intimidation, resulting in serious bodily injury, that is, the sexual

5

assault of victim A.P.R. As the sexual assault was an element of the offense of

6

which he was convicted he is unsuitable for home confinement. Petitioner

7

Garcia has a prior conviction for violating California Penal Code 261.5(c) by

8

engaging in an act of unlawful sexual intercourse with a minor who is more

9

than three years younger than he was. Most importantly, to earn the reduction

10

in sentence available under 18 U.S.C. § 3621(e), Petitioner Garcia must

11

participate in and complete the transitional component of the drug treatment

12

program at the RRC. If he fails to do so, his projected release date will be

13

modified to reflect he did not earn a reduction in sentence and he will be

14

required to serve a longer sentence. Therefore, neither Carror-Torres nor

15

Garcia are suitable for home confinement at this time.

16 50. Petitioners Brown and Fears are designated to be transferred to other facilities.

17 Neither Petitioner Fears nor Brown are prioritized for home confinement at this time due

18 to their low (rather than minimum) risk for recidivism. Staff were given additional

19 guidance on or about May 29, 2020, to reassess the PATTERN score of a number of

20 LOW security inmates to see if they should be scored MINIMUM instead and

21 considered for home confinement. That process in underway. As noted above, the BOP

22 has recently already considered what would be an appropriate place of confinement for

23 Fears and Brown recently.

24 IV. NATIONAL AND LOCAL STEPS TAKEN BY THE BOP AT FCC

25 LOMPOC TO ADDRESS COVID-19 PANDEMIC1

26

27

1 As illustrated below, the BOP’s national guidance has undergone a number of

28 changes in response to the evolving threat. The BOP has established a COVID-19

13

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 14 of 229 Page ID #:923

1 51. As set forth below, the BOP has taken—and is continuing to take—significant

2 measures in response to the COVID-19 pandemic in order to protect the safety and

3 security of all staff and inmates, as well as members of the public. In January 2020, the

4 BOP became aware of the first identified COVID-19 cases in the United States and

5 quickly took steps to prevent its introduction and spread in BOP institutions by

6 implementing existing plans to prevent and control the spread of infectious disease. The

7 BOP and FCC Lompoc have had infectious disease control and prevention as part of its

8 Annual Training for staff for at least 10 years.

9 52. The BOP’s response to COVID-19 has evolved along with the local community’s

10 and increasing knowledge and understanding about the disease. The BOP’s response has

11 occurred over seven distinct “phases” to date, several of which have affected inmates’

12 daily routines including access to non-emergency outside medical consultations, visitors,

13 phone and inmate email.

14 53. Throughout this process the Acting Wardens and management staff

15 communicated to staff and inmates repeatedly about the situation and modification of

16 operations.

17 54. Phase One activities included distributing guidance from the Health Services

18 Division regarding the description of the disease, where the infection was occurring and

19 best practices to mitigate transmission. Provided as part of Composite Exhibit X is a

20 Novel Coronavirus Information Sheet dated 02-05-2020 which was distributed to the

21 inmate population on 2020-02-06. Ex. X at 1. Phase One also involved an internal

22 COVID-19 Task Force, led by our agency Medical Director, Dr. Jeffery Allen, who

23 worked in conjunction with subject-matter experts from the World Health Organization

24 and the Centers for Disease Control which issued guidance to the field and helped in the

25 development of screening protocols for staff, visitors and inmates. Director Carvajal

26 resource section on its public webpage which is available at:

27 https://www.bop.gov/coronavirus/. This webpage includes updates on the BOP’s

28

response to COVID-19 and positive COVID-19 tests among inmates and staff at BOP institutions nationwide.

14

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 15 of 229 Page ID #:924

1 stated this task force collaboration “proved invaluable” in an address to staff on March

2 17, 2020. Guidance to staff at FCC Lompoc was emailed on March 10, 2020, advising

3 them how the agency’s screening and leave procedures designed to protect staff and

4 inmates will operate. On March 12, 2020, FCC Lompoc posted CDC posters on how to

5 stop the spread of respiratory diseases for the inmate population. Ex. X at 2.

6 55. On March 13, 2020, the BOP implemented “Phase Two” of its Action Plan. Phase

7 Two put into place a number of restrictions across all BOP facilities over a 30-day

8 period. It called upon each facility to assess its inventories and ensure adequate supplied,

9 update their pandemic plans and establish quarantine areas in their facilities. It also

10 included a number of measures that modified operations and how inmates experience

11 their conditions of confinement.

12

a. For example, the BOP suspended all internal movement of inmates with a few

13

exceptions, suspended social visits and unscheduled legal visits for a period of

14

30 days, with certain limited exceptions. To help ensure that inmates

15

maintained social ties during this time, the BOP increased inmates’ telephone

16

allotment to 500 minutes per month (from 300 minutes per month). It also

17

provided for the screening of staff and inmates for known COVID-19

18

symptoms. Attached as Exhibit Y is a copy of the March 13, 2020,

19

Memorandum bearing subject line CORONAVIRUS (COVID-19) PHASE

20

TWO ACTION PLAN which announced these modifications. On the same

21

day, the Acting Warden sent a notice to the inmate population on BOP

22

Coronavirus (COVID-19) Protective Measures. Ex. X at 3–4. As of this date,

23

there were no inmates testing positive for COVID-19 in the BOP.

24

b. On March 13, 2020, FCC Lompoc announced to all its inmates the BOP's

25

national measures to address COVID-19, which included the suspension of

26

social and legal visiting, and other modified operations. Besides the broad-

27

based suspension of visitation and limitation of inmate movement, FCC

28

Lompoc did not immediately modify inmates' access to commissary, showers,

15

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1

recreation, and phone/computer right away. Rather, we first began with

2

providing educational information on tips on how to stop the spread of

3

COVID-19 on or about March 25, 2020. At or around this time, there were

4

also efforts to keep inmates within their housing units to better contain any

5

potential spread of COVID-19. Otherwise, we were trying to emphasize extra

6

sanitation of the phones/keyboard, emphasizing the wearing of masks and

7

social distancing, and increased personal and area cleanliness, to avoid

8

modifying our operations to affect inmate programming and access to services.

9

On March 27, 2020, we modified commissary schedules for all three

10

institutions to help limit inmate group contact. We also tried to keep certain

11

programming as normal as possible, like the RDAP.

12

c. In the context of our COVID-19 enhanced operations at FCC Lompoc, inmates

13

at the Camp and FCI Lompoc Low have largely resumed normal access insofar

14

as phones and computers. Bathroom and shower access for inmates at the

15

Camp and FCI Lompoc Low have never been an issue given their dormitory-

16

style setting where the bathrooms/showers are all centrally located and

17

accessible whenever an inmate wants to use them, even during the 14 days of

18

enhanced mitigation measures.

19 56. On March 16, 2020, a staff screening site was established at the Training Center

20 for all staff to be screened before entering the facility, as well as any essential

21 contractors and volunteers. Staff were advised, “[i]f you are sick, do not come to work.”

22 Id. Staff were advised that “appropriate Personal Protective Equipment (PPE) is readily

23 available to you and we have a comprehensive inventory tracking system to account for

24 our PPE.” FCC Lompoc sent notices to all staff that the BOP was now requiring all staff

25 to be fit tested for the N-95 mask, should its use be needed in the future. FCC Lompoc

26 cancelled most training with the exception of fit testing, Introduction to Correctional

27 Techniques (which is the initial training for new employees) and training for non-health

28 care providers to enable them to perform entrance screening. FCC Lompoc sent

16

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 17 of 229 Page ID #:926
1 guidance to staff about the proper use of PPE, what to do if you are sick, screening and 2 leave guidance, information about COVID-19 and the importance of washing hands an 3 stopping the spread if germs. 4 57. On March 18, 2020, the Phase 2 plan was updated with additional clarifying 5 information. This updated guidance is provided as Exhibit Z. The same day Phase 3 6 guidance was issued addressing non-institutional settings which is inapplicable here but 7 is provided as Exhibit AA. 8 58. On March 25, 2020, FCC Lompoc posted CDC posters how to stop the spread of 9 germs for the inmate population. Ex. X at 5-6. During this time, FCC Lompoc created a 10 Quarantine Unit and sent guidance to staff on its operation. 11 59. On March 26, 2020, Phase 4 guidance was issued to add additional preventative 12 measures for quarantine and isolation and use of Personal Protective Equipment (PPE) 13 by screening staff at all intuitions. A copy of this memorandum is provided as Exhibit 14 BB. This guidance was updated as to quarantine and isolation information on March 28, 15 2020. A copy of this update is provided as Exhibit CC. 16 60. For the USP or FCI Lompoc Medium, the cells allow us to better manage the 17 spread of COVID-19, and so we have always tried to be more thoughtful in minimizing 18 inmate activity that might increase the risk of spreading COVID-19. Thus, Phase IV has 19 been in effect which allows each housing unit to go outside to the yard or Education tor 20 one hour, every other day. They are given showers and phone/computer access every 21 other day. For quarantined units, inmates may still come out to use the shower, phone, 22 or computers, every other day. 23 61. On March 31, 2020, guidance was issued regarding the implementation of Phase 24 5 of its COVID-19 Action Plan, which took effect on April 1, 2020. Specifically, the 25 relevant Assistant Director’s ordered that for a 14-day period, inmates in every 26 institution would be secured in their assigned cells/quarters to decrease the spread of the 27 28
17

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 18 of 229 Page ID #:927

1 virus.2 This shelter in place order was implemented at FCC Lompoc. Limited group

2 gatherings would be afforded to the extent practical to facilitate commissary, laundry,

3 showers, telephone, and Trust Fund Limited Computer System (TRULINCS) access.

4 TRULINCS is the internal BOP computer and electronic message platform that inmates

5 use to communicate electronically with staff in the institutions and individuals in the

6 community. Through this platform, inmates receive updates, notices, and can read

7 inmate bulletins posted on the system by BOP staff. A copy of the Phase 5

8 memorandum is provided as Exhibit DD. FCC Lompoc staff received important

9 information and resources to assist them in staying well, the proper use of personal

10 protective equipment (PPE), and were educated on language being employed when

11 discussing COVID-19 measures.

12 62. During Phase Five, all inmates at FCC Lompoc were confined to their cells for

13 the majority of the day. Meals were delivered directly to inmates’ cells, as well as a

14 limited number of commissary items. Inmates were permitted to leave their cells in small

15 groups on a rotating basis at designated times in order to engage in activities such as

16 phones, TRULINCS, showers, and exercise. Inmates were permitted to be outside their

17 cells in these small groups for approximately 2.5-3 hours per day, depending on the day

18 of the week, and with appropriate physical distancing.

19 63. The primary disinfectant current used to clean at FCC Lompoc is called hdq®C2.

20 Its EPA registration number is 1839-169-5741 and it is listed in the United States

21 Environmental Protection Agency, List N: Disinfectants for Use Against SARS-CoV-2.

22 This product comes to the facility concentrated, so hdq®C2 is diluted with 2 ounces per

23 gallon of water. Product information demonstrates that at the 2 oz. per gallon dilution,

24 hdqC 2 demonstrates effective disinfectant activity against a number of bacteria,

25 including Methicillin resistant Staphylococcus aureus (MRSA) and numerous strains of

26 Staphylococcus and viruses like IV-1, HIV-2, Hepatitis B virus (HBV), Hepatitis C virus

27

28

2 This modification to the BOP’s action plan is based on health concerns, not disruptive inmate behavior.

18

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 19 of 229 Page ID #:928

1 (HCV) and more. Additionally, FCC Lompoc recently received 240 quarts of

2 AVISTAT-D™ Ready-To-Use Spray Disinfectant Cleaner. It is also listed in the United

3 States Environmental Protection Agency, List N: Disinfectants for Use Against SARS-

4 CoV-2. This product is ready to use and is not diluted.

5 64. On Friday April 3, 2020, the CDC amended its guidance to recommend use of

6 face masks to reduce the spread of COVID-19. See

7 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html

8 accessed on May 28, 2020. On Monday. April 6, 2020, the BOP issued guidance to all

9 CEO’s directing them to immediately implement the CDC guidelines and issue masks to

10 inmates. Surgical masks were issued to all inmates and staff and was later followed by

11 distribution of three washable cloth masks for each inmate.

12 65. A reminder of the need for daily sanitation was emailed to all staff on April 7,

13 2020, emphasizing the continued need for social distancing, using PPE as instructed, and

14 keeping all frequently touched areas clean and disinfected. Enhanced sanitation efforts

15 were undertaken at all facilities.

16

a. At the USP, all inmates in general population are issued hygiene items which

17

includes soap weekly. Hand sanitizer is not available to inmates at the medium

18

security facility, but the commissary also allows for the purchase of soap.

19

Chemical sanitizer is available for all inmates in general population on a daily

20

basis. Cleaning supplies are distributed to all units on a weekly bases and are

21

available to inmates daily. Inmates in the Special Housing Unit (SHU) are

22

distributed seven packs of multi Soap/Shampoo on Tuesdays and Thursdays.

23

Anytime an inmate uses the SHU Law Library, the areas are disinfected after

24

each use.

25

b. At the Camp, at Camp South there are two dispensers which contain

26

Antibacterial Foam hand wash as well as two located in the A bathrooms and

27

two in B bathrooms. Additionally, every Friday inmates are issued hygiene

28

items which includes soap. Computer keyboards were covered with plastic

19

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 20 of 229 Page ID #:929

1

bags for each individuals use. Indigent inmates are issued hygiene items,

2

which includes soap weekly. Cleaning supplies are distributed to all units on a

3

weekly bases and are available to inmates daily.

4

c. At the FCI, inmates were not provided hand sanitizer for their personal

5

possession, but staff were administering sanitizer before and after using one of

6

the computer keyboards or phones. Saran wrap was also placed on the

7

keyboard before each inmate’s use and phones were disinfected between each

8

use. Liquid antibacterial soap is dispensed in all unit bathrooms through the

9

FCI. Cleaning supplies are distributed to all units on a weekly bases and are

10

available to inmates daily. Indigent inmates are issued hygiene items which

11

includes soap on a weekly bases.

12 66. To ensure adequate staff supervision where needed, FCC Lompoc modified non-

13 custody work schedules, suspended all compressed work schedules, and realigned staff

14 responsibilities as needed. Secondary law enforcement and other BOP personnel

15 normally stationed elsewhere were deployed to FCC Lompoc on temporary duty (TDY)

16 to provide assistance. Information from the CDC tailored to first responders was

17 distributed to staff on April 7, 2020.

18 67. On April 8, 2020, the Director of the BOP posted a memorandum to the inmate

19 population addressing the COVID-19 pandemic. Ex. X at 7–12. This communication

20 advised the inmate population that the BOP had its first positive confirmed COVID-19

21 case on March 21, 2020 and the first positive staff case the next day. Ex. X at 7. FCC

22 Lompoc sent staff information on COVID-19 and steps to take to stay healthy and stop

23 the spread of the virus. While COVID-19 testing was not readily available to

24 asymptomatic individuals in the community, FCC Lompoc was able to obtain the

25 assistance to the Lompoc Health Care Center to provide FCC Lompoc staff COVID-19

26 testing and later at another facility.

27

28

20

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 21 of 229 Page ID #:930
1 68. Information on the proper use of face coverings was posted for the inmate 2 population on April 13, 2020. Ex. EE at 13. Around this time FCC Lompoc staff were 3 posting relevant signs and guidance through the Housing Unit areas. See Ex. EE. 4 69. Implementation of Phase 6 of its COVID-19 Action Plan was in effect from April 5 13, 2020 to May 18, 2020, and continued mitigation efforts by minimizing movement. 6 Specifically, the Assistant Directors ordered that inmates in every institution continue to 7 be secured in their assigned cells/quarters to decrease the spread of the virus. Limited 8 group gathering would be afforded to the extent practical to facilitate telephone, 9 TRULINCS access, commissary, laundry, and showers. This action plan reiterated 10 efforts to mitigate movement of staff and inmates, minimize outside contacts, outlined 11 criteria for quarantine and isolation of inmates, addressed logistical needs and continued 12 use of PPEs. A copy of the Phase 6 guidance is provided as Exhibit FF. In distributing 13 the Phase Six guidance to staff, the FCC Lompoc Acting Warden reemphasized the 14 importance of PPE and ensuring staff and inmates have this equipment. The Attorney 15 General issued guidance on April 14, 2020, directing DOJ employees to wear face 16 coverings in public settings. 17 70. On April 16, FCC Lompoc cancelled all staffs’ scheduled leave and posted 18 notices to the inmate population on washing your hands and what you need to know 19 about COVID-19. Ex. X at 14 – 16. 20 71. On April 17, 2020, FCC Lompoc took enhanced mitigation measures due to the 21 spread of COVID-19 at FCC Lompoc. These enhanced modified operations were 22 generally described in a memoranda issued to staff on April 17, 2020, and individualized 23 notice was provided to inmates at the USP, FCI and the Camp. A copy of these memos 24 are provided as composite Exhibit GG. Specifically, these measures mandated the use of 25 masks and cleanliness by the inmate population and began restricting inmates to their 26 housing units and cells. During this time, FCC Lompoc restricted inmate use of phone 27 and TRULINCS in order to prevent inmates from transferring COVID. 28
21

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 22 of 229 Page ID #:931

1

a. At USP Lompoc, inmates were required to wear a mask at all times. Every

2

inmate had already been issued surgical and cloth masks and replacements

3

were available upon request. Every inmate received disinfectant and paper

4

towels to keep their housing area clean and were advised they will be held

5

accountable if they fail to maintain sanitation. Hygiene items were issued

6

weekly and laundry exchange occurred weekly. Inmate’s mail services were

7

unaffected so they could send and receive mail. Legal calls were made

8

available as needed.

9

b. Camp inmates had similar conditions required. They were required to wear a

10

mask at all times. Every inmate had already been issued surgical and cloth

11

masks and replacements were available upon request. Every inmate received

12

disinfectant and paper towels to keep their housing area clean and were advised

13

they will be held accountable if they fail to maintain sanitation. Commissary,

14

Food Services, Medical Services and Laundry Services were not affected by

15

the changes at this time. Inmate’s mail services were unaffected so they could

16

send and receive mail. Legal calls were made available as needed.

17

c. At FCI Lompoc movement was even more restricted as it was limited to the

18

use of the restroom or communicating with staff. Inmates were required to

19

wear a mask at all times. Every inmate had already been issued surgical and

20

cloth masks and replacements were available upon request. Every inmate

21

received disinfectant and paper towels to keep their housing area clean and

22

were advised they will be held accountable if they fail to maintain sanitation.

23

Hygiene items were issued weekly and laundry exchange occurred weekly.

24

Inmate’s mail services were unaffected so they could send and receive mail.

25

Legal calls were made available as needed. Commissary was suspended but

26

Food Services, Medical Services and Laundry Services were not affected.

27 72. After all inmates received masks and we increased our educational efforts on how

28 to stop the spread of COVID-19 with increased signs, our COVID-19 numbers were

22

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 23 of 229 Page ID #:932
1 rising, and we believed we needed more aggressive measures and implemented 14 days 2 of enhanced mitigation measures, beginning on or about April 17, 2020. These 3 measures all included suspending phone and computer access as we feared the spread of 4 COVID-19 through such use. Otherwise, there was some variance of suspension of 5 services at each of our three institutions. For instance, at the USP, we limited 6 movements to their cell so they had no access to showers, did a weekly laundry 7 exchange, and allowed them to have commissary for up to $50. At the FCI Lompoc, 8 only Commissary services were suspended. At the Camps, they were allowed to have 9 Commissary as usual. 10 73. In a Press Release on April 20, 2020, FCC Lompoc announced it was negotiating 11 a contract for an on-site mobile hospital equipped with hospital beds and medical 12 personnel. A copy of this announcement is provided as Exhibit HH. Staff were apprised 13 of the Complex’s efforts through an email sent that same day. Through this 14 communication, the Warden took the opportunity to ask staff to wear their masks even 15 when in the community. 16 74. On April 29, 2020, a document addressing Frequently Asked Questions for FCC 17 Lompoc was distributed to the inmate population to address some of the more pressing 18 questions being raised. A copy of the FAQ is provided as Exhibit II. 19 75. On Friday, May 1, 2020, staff were advised that effective Monday, May 4, 2020, 20 enhanced modified operations at USP Lompoc and the Camp would go into effect. 21 These modified operations were being implemented after the 14-day quarantine period 22 passed. These modified enhanced operations involved allowing inmates to use showers 23 one at a time with the area being disinfected after each use, brief phone and email access 24 was allowed with stringent standards of sanitation and disinfecting in place, and surgical 25 masks were required at all time. The plan was to do this for a week and for those areas 26 completing the quarantine period the modified operations would change to allow for 27 inmates to be allowed out for a period of time to shower and use the phones or 28
23

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 24 of 229 Page ID #:933
1 computers. This guidance advised that any positive test could require regression of the 2 process to an earlier phase. 3 76. A May 4, 2020 Press Release announced the finalized construction of a Hospital 4 Care Unit (HCU) inside the confines of USP Lompoc at the medium-security component 5 of the Complex which includes ten (10) double-occupancy, acute care treatment rooms 6 with negative pressure, Patient Intake Room, Nurses Station, Pharmacy, Linen Exchange 7 Room, Biohazard Room, and Medical Supply & Storage. Additionally, FCC Lompoc 8 announced it negotiated a contract for medical personnel, including Doctors, Registered 9 Nurses, Paramedics, Pharmacist, Physician Assistants, Nurse Assistants, and a Clinical 10 Manager, who will work in conjunction with FCC Lompoc Health Services staff. A 11 copy of the 2020-05-04 Press Release announcing the HCU and additional medical 12 personnel is provided as Exhibit JJ. 13 77. We began coming off these enhanced mitigation measures beginning on May 4, 14 2020, allowing the Associate Wardens to increase services in an orderly manner. For 15 instance, at the USP, inmates were first allowed access to the showers, phones, and 16 emails on a rotating, take-turns basis. After a week of carefully monitored rotations, the 17 AWs or designee would increase inmate access by allowing a small number of inmates 18 out for them to use their choice of services, like showers, phone and emails. We referred 19 to these two phases at FCC Lompoc as Phase II/Phase III. On or about May 14, 2020, 20 we announced Phase III/IV, where we continued to allow inmates to be out in small 21 numbers (no more than five cells or 10 inmates at a time), for a period of one hour, to 22 use the showers, phones and computers. Phase IV would be to allow inmates to access 23 the outdoor track for walking, and to use the Law Library per a sign-up sheet to ensure 24 there could social distancing within the Law Library. 25 78. On May 5, 2020, FCC Lompoc announced it was COVID-19 testing 100% of the 26 inmate population at FCI Lompoc. The release acknowledged that as a result of doing 27 so, they may significantly increase the number of COVID-19 positive cases at the 28 facility despite only a small percentage experiencing acute or chronic illness. This
24

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 25 of 229 Page ID #:934
1 measure was taken to further assist in mitigation efforts. Additional information was 2 posted in inmate housing units and it became available. 3 79. On May 8, 2020, the Warden updated staff on the recent happenings at the 4 Complex. Specifically, 182 COVID-negative inmates were moved from the FCI 5 Lompoc to USP Lompoc into a quarantine unit dedicated solely for those inmates in 6 order to reduce the population of the FCI and “providing them the space they need to 7 accomplish their social distancing goals.” It also announced the anticipated arrival of a 8 100 square foot tent to further enhance social distancing opportunities. It also 9 announced that 20 contract workers for the Hospital Care Unit had commenced their 10 orientation to the facility. Finally, the update reminded staff the facility was 11 “continuously reviewing inmates for Residential Reentry Centers, Home Confinement 12 placements, furlough eligibility prior to placement in RRC/HC’s, to further allow us to 13 create the environment needed in a correctional setting to counter COVID-19. The 14 practice of staff being assigned to specific areas and facilities and not being assigned to 15 multiple areas across the complex was continued to minimize the potential cross 16 transmission on the complex by staff. Emails were sent to staff imploring them to follow 17 guidance regarding social distancing and the wearing of masks while in public, donning 18 appropriate PPE particularly when responding to situations in a quarantine or isolation 19 area and reminding staff of the critical importance of social distancing and use of 20 appropriate PPE. 21 80. FCC Lompoc announced to staff on May 12, 2020, that the Hospital Care Unit 22 (HCU) was activated over the previous weekend and that inmates with less severe 23 COVID-19 symptoms currently being managed at the local hospital would be returned to 24 the facility to pressure on community resources and announced the impending 25 installation of a BLU-Med Hospital Tent at FCI Lompoc. 26 81. On May 14, 2020, FCC Lompoc issued further guidance on enhanced modified 27 operations at Units C, J, and L at USP Lompoc to be effective on May 18, 2020. This 28 guidance still required social distancing, use of masks, and stringent standards of
25

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 26 of 229 Page ID #:935
1 sanitation. However, for these units, a small number of inmates, of no more than 10 2 inmates at a time, would be allowed in the common area (a.k.a. the flats) of the unit for a 3 one hour period during which they can shower and use the phones and computers. It 4 announced the next phase would include inmate access to outside recreation on the track 5 and to the Law Library in the Education Department, while cautioning that any medical 6 or social distancing concerns would cause regression to prior practices. In summarizing 7 the week’s accomplishments through an email to staff on May 15, 2015, the Acting 8 Warden commented on the addition of a clean transition area for staff working directly 9 with symptomatic inmates, the establishment of the satellite HCU Pharmacy, and 10 creation of the HCU medical supply storage and well as the erection of a hospital tent at 11 the FCI. 12 82. On May 18, 2020, the relevant Assistant Directors of the BOP issued guidance on 13 the implementation of Phase 7 of the BOP’s COVID-19 Action Plan, which took effect 14 on May 18, 2020. It extended the Phase 6 Action Plan through June 30, 2020. Among 15 other measures, it added testing of inmates new to the BOP, and directed that whenever 16 possible, inmates should be permitted access to the Electronic Law Library consistent 17 with social distancing protocols and safe institution operations. A copy of the 18 implementing guidance is provided as Exhibit KK. At FCC Lompoc, the improving 19 conditions at the facility enabled management to restore a number of non-custody staff to 20 the normal duties. 21 83. Pursuant to Phase 7 (which took effect on May 18, 2020), all inmates at FCC 22 Lompoc are confined to their cells for the majority of the day. Meals are delivered 23 directly to the housing units. However, inmates are permitted to leave their cells in small 24 groups on a rotating basis at designated times in order to engage in activities such as 25 phones, TRULINCS, showers, and exercise. FCC Lompoc announced it will “begin 26 organizing and preparing for our new normal inside the Low and Camps while 27 continuing to battle in the USP to eradicate this disease . . . [balanced against the] 28 additional pressure . . . to get visitation and other programming restarted.” FCC Lompoc
26

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 27 of 229 Page ID #:936
1 management clearly announced it would “strategically reactivating certain programs for 2 the inmate populations to slowly establish a more recognizable operation” safely. The 3 Warden distributed plans for the next phase of the Camp’s modified operations which 4 included adding Law Library access and expanding time for phones, emails, and the 5 track (outside recreation). These measures were clearly contingent upon the use of 6 masks, social distancing and stringent standards of sanitation being maintained. 7 84. Another Frequently Asked Questions for FCC Lompoc document was generated 8 and provided to inmates on May 11, 2020. In this document which is attached as Exhibit 9 LL, the facility explained quarantine procedure and CARES Act consideration for home 10 confinement to the inmate population. 11 85. Given the public health emergency, FCC Lompoc staff feel it is necessary to 12 minimize movement that could put both staff and inmates at risk. Staff have been 13 actively focused on managing inmates and increased sanitation efforts. However, since 14 April 1, 2020, FCC Lompoc has accommodated urgent legal calls by request. In order to 15 arrange a legal call, BOP staff must take an inmate out of a quarantine or isolation 16 unit/cell and into a staff office with an unmonitored line. When provided with a legal 17 call, inmates have been limited to a 15 minute call. This time limitation is to ensure that 18 all inmates are provided legal calls and that staff are able to adequately disinfect the 19 equipment and area between calls. Given the limitations on inmate movement within the 20 institution, the limited number of phones available for legal calls, and the sheer volume 21 of requests being received, inmates may not have been able to complete legal calls as 22 quickly as requested. 23 86. On June 1, 2020, a third iteration of the Frequently Asked Questions (FAQ) for 24 FCC Lompoc was issued to staff an inmates and is provided as Exhibit MM. All three 25 FAQ updates can be read together to see the changes at the facility over time. In this 26 iteration, explained the process for pre-release or transfer quarantine procedures both at 27 the facility and if need be in the community. 28
27

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 28 of 229 Page ID #:937

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 29 of 229 Page ID #:938

VIMFY

*

PAGE 001

*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:24:44

REGNO..: 41928-069 NAME: CARROR-TORRES, YONNEDIL

RESP OF: LOM PHONE..: 805-735-2771
PROJ REL MT: GOOD CONDUCT TIME RELEASE PROJ REL DT: 08-07-2030

FAX: 805-736-1292 RACE/SEX...: WHITE / MALE AGE: 24 PAR ELIG DT: N/A PAR HEAR DT:

G0002

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Exhibit A page 29

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 30 of 229 Page ID #:939

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*

PAGE 002

*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:24:44

REGNO..: 41928-069 NAME: CARROR-TORRES, YONNEDIL

RESP OF: LOM PHONE..: 805-735-2771 FAX: 805-736-1292 HOME DETENTION ELIGIBILITY DATE: 02-07-2030

THE FOLLOWING SENTENCE DATA IS FOR THE INMATE'S CURRENT COMMITMENT. THE INMATE IS PROJECTED FOR RELEASE: 08-07-2030 VIA GCT REL

----------------------CURRENT JUDGMENT/WARRANT NO: 010 ------------------------

COURT OF JURISDICTION...........: PUERTO RICO DOCKET NUMBER...................: 3:15-CR-00697-1(FAB) JUDGE...........................: BESOSA DATE SENTENCED/PROBATION IMPOSED: 07-21-2016 DATE COMMITTED..................: 09-20-2016 HOW COMMITTED...................: US DISTRICT COURT COMMITMENT PROBATION IMPOSED...............: NO

FELONY ASSESS MISDMNR ASSESS FINES

NON-COMMITTED.: $200.00

$00.00

$00.00

COSTS $00.00

RESTITUTION...: PROPERTY: NO SERVICES: NO

AMOUNT: $7,040.00

-------------------------CURRENT OBLIGATION NO: 010 ---------------------------

OFFENSE CODE....: 557

18:2119 ROBBERY OF AUTO

OFF/CHG: 18:2119(2) AND 2 CARJACKING WITH SERIOUS BODILY INJURY AND

AIDING AND ABETTING. CT 1

SENTENCE PROCEDURE.............: 3559 PLRA SENTENCE

SENTENCE IMPOSED/TIME TO SERVE.: 120 MONTHS

TERM OF SUPERVISION............:

5 YEARS

DATE OF OFFENSE................: 04-29-2013

-------------------------CURRENT OBLIGATION NO: 020 ---------------------------

OFFENSE CODE....: 130

18:924(C) FIREARMS LAWS

OFF/CHG: 18:924(C)(1)(A)(II) CARRYING A FIREARM IN FURTHERANCE OF A

CRIME OF VIOLENCE AND AIDING AND ABETTING. CT 2

SENTENCE PROCEDURE.............: 3559 PLRA SENTENCE

SENTENCE IMPOSED/TIME TO SERVE.: 120 MONTHS

TERM OF SUPERVISION............:

5 YEARS

RELATIONSHIP OF THIS OBLIGATION

TO OTHERS FOR THE OFFENDER....: CS 010 010 010

G0002

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Exhibit A page 30

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 31 of 229 Page ID #:940

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*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:24:44

REGNO..: 41928-069 NAME: CARROR-TORRES, YONNEDIL

RESP OF: LOM PHONE..: 805-735-2771 FAX: 805-736-1292 DATE OF OFFENSE................: 04-29-2013

-------------------------CURRENT COMPUTATION NO: 010 --------------------------

COMPUTATION 010 WAS LAST UPDATED ON 01-07-2020 AT DSC AUTOMATICALLY COMPUTATION CERTIFIED ON 10-12-2016 BY DESIG/SENTENCE COMPUTATION CTR

THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN CURRENT COMPUTATION 010: 010 010, 010 020

DATE COMPUTATION BEGAN..........: 07-21-2016

AGGREGATED SENTENCE PROCEDURE...: AGGREGATE GROUP 800 PLRA

TOTAL TERM IN EFFECT............: 240 MONTHS

TOTAL TERM IN EFFECT CONVERTED..: 20 YEARS

AGGREGATED TERM OF SUPERVISION..:

5 YEARS

EARLIEST DATE OF OFFENSE........: 04-29-2013

JAIL CREDIT.....................: FROM DATE 04-30-2013

THRU DATE 07-20-2016

TOTAL PRIOR CREDIT TIME.........: 1178

TOTAL INOPERATIVE TIME..........: 0

TOTAL GCT EARNED AND PROJECTED..: 996

TOTAL GCT EARNED................: 294

STATUTORY RELEASE DATE PROJECTED: 08-07-2030

TWO THIRDS DATE.................: 08-30-2026

EXPIRATION FULL TERM DATE.......: 04-29-2033

TIME SERVED.....................:

7 YEARS

PERCENTAGE OF FULL TERM SERVED..: 35.4

PERCENT OF STATUTORY TERM SERVED: 41.0

1 MONTHS

4 DAYS

G0002

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Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 32 of 229 Page ID #:941

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PUBLIC INFORMATION

*

PAGE 004 OF 004 *

INMATE DATA

*

AS OF 06-02-2020

REGNO..: 41928-069 NAME: CARROR-TORRES, YONNEDIL

RESP OF: LOM PHONE..: 805-735-2771

FAX: 805-736-1292

PROJECTED SATISFACTION DATE.....: 08-07-2030 PROJECTED SATISFACTION METHOD...: GCT REL

06-02-2020 17:24:44

S0055

NO PRIOR SENTENCE DATA EXISTS FOR THIS INMATE

Exhibit A page 32

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 33 of 229 Page ID #:942

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*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

06-02-2020

PAGE 001 OF 001

17:49:14

FUNCTION: L-P SCOPE: REG EQ 41928-069

OUTPUT FORMAT: SAN

-------LIMITED TO SUBMISSIONS WHICH MATCH ALL LIMITATIONS KEYED BELOW----------

DT RCV: FROM __________ THRU __________ DT STS: FROM __________ THRU __________

DT STS: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT RDU

DT TDU: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT TRT

STS/REAS: ______ ______ ______ ______ ______ ______ ______ ______ ______ ______

SUBJECTS: ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____

EXTENDED: _ REMEDY LEVEL: _ _

RECEIPT: _ _ _ "OR" EXTENSION: _ _ _

RCV OFC : EQ ____

____

____

____

____

____

TRACK: DEPT: __________ __________ __________ __________ __________ __________

PERSON: ___

___

___

___

___

___

TYPE: ___

___

___

___

___

___

EVNT FACL: EQ ____

____

____

____

____

____

RCV FACL.: EQ ____

____

____

____

____

____

RCV UN/LC: EQ __________ __________ __________ __________ __________ __________

RCV QTR..: EQ __________ __________ __________ __________ __________ __________

ORIG FACL: EQ ____

____

____

____

____

____

ORG UN/LC: EQ __________ __________ __________ __________ __________ __________

ORIG QTR.: EQ __________ __________ __________ __________ __________ __________

G5152

NO REMEDY DATA EXISTS FOR THIS INMATE

/
Exhibit B page 33

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*

INMATE DISCIPLINE DATA

*

CHRONOLOGICAL DISCIPLINARY RECORD

*

06-02-2020

*

17:52:30

REGISTER NO: 41928-069 NAME..: CARROR-TORRES, YONNEDIL

FUNCTION...: PRT

FORMAT: CHRONO LIMIT TO ___ MOS PRIOR TO 06-02-2020

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 3003903 - SANCTIONED INCIDENT DATE/TIME: 06-28-2017 1225

DHO HEARING DATE/TIME: 07-05-2017 0830

FACL/CHAIRPERSON.....: WIL/D. MOSLEY

REPORT REMARKS.......: I AM GUILTY

201 FIGHTING WITH ANOTHER PERSON - FREQ: 1

DIS GCT / 27 DAYS / CS

COMP:010 LAW:P

DS

/ 15 DAYS / CS

COMP: LAW:

LP COMM / 3 MONTHS / CS

COMP: LAW: STARTING ON 07-05-2017 AND ENDING ON 10-04-2017

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 2959697 - SANCTIONED INCIDENT DATE/TIME: 03-07-2017 1330

DHO HEARING DATE/TIME: 03-22-2017 0835

DHO REPT DEL: 04-03-2017 1000

FACL/CHAIRPERSON.....: EST/A. CANO

REPORT REMARKS.......: GREATER WEIGHT. DENIED BANING ON SHU CELL DOOR, DESTROY

A SHEET $4.50. THREE STAFF WITNESSED.

HEARING IS ALSO BASIS FOR EXECUTION OF DS

SUSPENDED 02-15-2017 0950

329 DESTROY PROP $100 OR LESS - FREQ: 1

DIS GCT / 14 DAYS / CS

COMP:010 LAW:P DIS GCT WAS IMPOSED TO MEET YOUR PLRA SENTENCE

GUIDELINE.

FF NVGCT / 3 DAYS / CS

COMP:010 LAW:P FF NVGCT WAS IMPOSED TO MEET YOUR PLRA SENTENCE

GUIDELINE.

LP EMAIL / 3 MONTHS / CS

COMP: LAW: LP EMAIL WAS IMPOSED TO DETER FUTURE MISCONDUCT

RESTORE 6-21-2017

MON REST / 2.25 DOLLARS / CS

COMP: LAW: MON RESTITUTION WAS IMPOSED TO DETER FUTURE

MISCONDUCT.EACH I/M IN CELL ORDER TO PAY HALF COST

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 2949056 - SANCTIONED INCIDENT DATE/TIME: 02-08-2017 0830

DHO HEARING DATE/TIME: 02-15-2017 0950

DHO REPT DEL: 02-23-2017 1715

FACL/CHAIRPERSON.....: EST/A. CANO

REPORT REMARKS.......: DENIED OWNERSHIP OF GREEN AND BROWN PAPER SOAKED IN

AMPHETAMINE FOUND ON DESK. CELLMATE DENIED AMPHETAMINE.

113 POSSESSING DRUGS/ALCOHOL - FREQ: 1 ATI: DDC

DIS GCT / 41 DAYS / CS

COMP:010 LAW:P DIS GCT WAS IMPOSED TO MEET YOUR PLRA SENTENCE

GUIDELINE.

DS

/ 10 DAYS / CS

COMP: LAW: DS WAS IMPOSED AS A PUNISHMENT.

G0002

MORE PAGES TO FOLLOW . . .

Exhibit C page 34

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 35 of 229 Page ID #:944

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INMATE DISCIPLINE DATA CHRONOLOGICAL DISCIPLINARY RECORD

*

06-02-2020

*

17:52:30

REGISTER NO: 41928-069 NAME..: CARROR-TORRES, YONNEDIL

FUNCTION...: PRT

FORMAT: CHRONO LIMIT TO ___ MOS PRIOR TO 06-02-2020

DHO HEARING DATE/TIME: 02-15-2017 0950 REPORT 2949056 CONTINUED

DS

/ 14 DAYS / CS / SUSPENDED 180 DAYS

EXECUTED BASED ON HEARING OF 03-22-2017 0835

COMP: LAW: DS SUSPENDED PENDING 180 DAYS OF CLEAR CONDUCT

WAS IMPOSED TO DETER FUTURE MISCONDUCT.

LP COMM / 6 MONTHS / CS

COMP: LAW: LP COMM WAS IMPOSED TO DETER FUTURE MISCONDUCT.

RESTORE 08-14-2017

LP VISIT / 6 MONTHS / CS

COMP: LAW: LP VISIT WAS IMPOSED TO DETER FUTURE MISCONDUCT

NO VISITORS FROM 2-15-2017 THROUGH 08-14-2017

LP VISITRS / 6 MONTHS / CS

COMP: LAW: LP VISITRS WAS IMPOSED TO DETER FUTURE MISCONDUCT.

IMMEDIATE FAMILY ONLY MAY VISIT 8/15/17 - 2/14/18

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 2903733 - SANCTIONED INCIDENT DATE/TIME: 10-05-2016 1050

UDC HEARING DATE/TIME: 10-06-2016 1502

FACL/UDC/CHAIRPERSON.: EST/UNT D/SMITH/JENK

REPORT REMARKS.......: WHEN ASKED I TOLD THEM I NEEDED TO THINK ABOUT IT, THEN

I CALLED FOR ANOTHER OFC AND THEN SAID I WOULD GO

306 REFUSING WORK/PGM ASSIGNMENT - FREQ: 1

LP COMM / 45 DAYS / CS

COMP: LAW: LOSS OF COMMISSARY FOR 45 DAYS

G0005

TRANSACTION SUCCESSFULLY COMPLETED - CONTINUE PROCESSING IF DESIRED

Exhibit C page 35

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 36 of 229 Page ID #:945

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PAGE 001

*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:28:25

REGNO..: 27173-016 NAME: REED, VINCENT

RESP OF: LOM PHONE..: 805-735-2771
PROJ REL MT: GOOD CONDUCT TIME RELEASE PROJ REL DT: 08-05-2025

FAX: 805-736-1292 RACE/SEX...: BLACK / MALE AGE: 54 PAR ELIG DT: N/A PAR HEAR DT:

G0002

MORE PAGES TO FOLLOW . . .

Exhibit D page 36

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 37 of 229 Page ID #:946

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PAGE 002

*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:28:25

REGNO..: 27173-016 NAME: REED, VINCENT

RESP OF: LOM PHONE..: 805-735-2771 FAX: 805-736-1292 HOME DETENTION ELIGIBILITY DATE: 02-05-2025

THE FOLLOWING SENTENCE DATA IS FOR THE INMATE'S CURRENT COMMITMENT. THE INMATE IS PROJECTED FOR RELEASE: 08-05-2025 VIA GCT REL

----------------------CURRENT JUDGMENT/WARRANT NO: 010 ------------------------

COURT OF JURISDICTION...........: DIST OF COLUMBIA, DISTRICT CRT DOCKET NUMBER...................: CR 03-560-1 JUDGE...........................: WALTON DATE SENTENCED/PROBATION IMPOSED: 03-21-2006 DATE COMMITTED..................: 07-25-2006 HOW COMMITTED...................: US DISTRICT COURT COMMITMENT PROBATION IMPOSED...............: NO

FELONY ASSESS MISDMNR ASSESS FINES

NON-COMMITTED.: $300.00

$00.00

$00.00

COSTS $00.00

RESTITUTION...: PROPERTY: NO SERVICES: NO

AMOUNT: $45,158.66

-------------------------CURRENT OBLIGATION NO: 010 ---------------------------

OFFENSE CODE....: 554

18:2113(D) ROBBRY,ASSLT,BANK

OFF/CHG: 18:2113(A) & (D):ARMED BANK ROBBERY

22:2803(A)(1) & (B)(1);ARMED CARJACKING/22:303;DESTROY PROP

SENTENCE PROCEDURE.............: 3559 PLRA SENTENCE

SENTENCE IMPOSED/TIME TO SERVE.: 327 MONTHS

TERM OF SUPERVISION............:

5 YEARS

NEW SENTENCE IMPOSED...........: 300 MONTHS

BASIS FOR CHANGE...............: COURT ORDER MODIFYING SENTENCE

RELATIONSHIP OF THIS OBLIGATION

TO OTHERS FOR THE OFFENDER....: CC

DATE OF OFFENSE................: 12-02-2003

G0002

MORE PAGES TO FOLLOW . . .

Exhibit D page 37

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 38 of 229 Page ID #:947

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PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:28:25

REGNO..: 27173-016 NAME: REED, VINCENT

RESP OF: LOM PHONE..: 805-735-2771 FAX: 805-736-1292 -------------------------CURRENT COMPUTATION NO: 010 --------------------------

COMPUTATION 010 WAS LAST UPDATED ON 01-23-2020 AT DSC AUTOMATICALLY COMPUTATION CERTIFIED ON 08-07-2008 BY DESIG/SENTENCE COMPUTATION CTR

THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN CURRENT COMPUTATION 010: 010 010

DATE COMPUTATION BEGAN..........: 03-21-2006 TOTAL TERM IN EFFECT............: 300 MONTHS TOTAL TERM IN EFFECT CONVERTED..: 25 YEARS EARLIEST DATE OF OFFENSE........: 12-02-2003

JAIL CREDIT.....................: FROM DATE 12-02-2003

THRU DATE 03-20-2006

TOTAL PRIOR CREDIT TIME.........: 840 TOTAL INOPERATIVE TIME..........: 0 TOTAL GCT EARNED AND PROJECTED..: 1213 TOTAL GCT EARNED................: 727 STATUTORY RELEASE DATE PROJECTED: 08-05-2025 TWO THIRDS DATE.................: 08-01-2020 EXPIRATION FULL TERM DATE.......: 11-30-2028 TIME SERVED.....................: 16 YEARS PERCENTAGE OF FULL TERM SERVED..: 66.0 PERCENT OF STATUTORY TERM SERVED: 76.1

6 MONTHS

PROJECTED SATISFACTION DATE.....: 08-05-2025 PROJECTED SATISFACTION METHOD...: GCT REL

S0055

NO PRIOR SENTENCE DATA EXISTS FOR THIS INMATE

Exhibit D page 38

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 39 of 229 Page ID #:948

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*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

06-02-2020

PAGE 001 OF

17:48:45

FUNCTION: L-P SCOPE: REG EQ 27173-016

OUTPUT FORMAT: SAN

-------LIMITED TO SUBMISSIONS WHICH MATCH ALL LIMITATIONS KEYED BELOW----------

DT RCV: FROM __________ THRU __________ DT STS: FROM __________ THRU __________

DT STS: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT RDU

DT TDU: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT TRT

STS/REAS: ______ ______ ______ ______ ______ ______ ______ ______ ______ ______

SUBJECTS: ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____

EXTENDED: _ REMEDY LEVEL: _ _

RECEIPT: _ _ _ "OR" EXTENSION: _ _ _

RCV OFC : EQ ____

____

____

____

____

____

TRACK: DEPT: __________ __________ __________ __________ __________ __________

PERSON: ___

___

___

___

___

___

TYPE: ___

___

___

___

___

___

EVNT FACL: EQ ____

____

____

____

____

____

RCV FACL.: EQ ____

____

____

____

____

____

RCV UN/LC: EQ __________ __________ __________ __________ __________ __________

RCV QTR..: EQ __________ __________ __________ __________ __________ __________

ORIG FACL: EQ ____

____

____

____

____

____

ORG UN/LC: EQ __________ __________ __________ __________ __________ __________

ORIG QTR.: EQ __________ __________ __________ __________ __________ __________

G0002

MORE PAGES TO FOLLOW . . .

Exhibit E page 39

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 40 of 229 Page ID #:949

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*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

PAGE 002 OF 002 *

SANITIZED FORMAT

*

06-02-2020 17:48:45

REMEDY-ID

SUBJ1/SUBJ2 --------------------ABSTRACT------------------------

RCV-OFC

RCV-FACL

DATE-RCV

STATUS

STATUS-DATE

453137-F1

15AM/ GIL

FRP GIL

05-18-2007

REJ

05-18-2007

453137-R1

15AM/ MXR

FRP GIL

06-26-2007

REJ

06-29-2007

480653-F1

15AM/ GIL

REQUEST TO BE PLACED ON IFRP EXEMPT STATUS

GIL

01-28-2008

CLD

02-29-2008

485928-F1

31ZM/ GIL

REQUEST CORRECTED COMPUTATION

GIL

03-13-2008

CLO

03-20-2008

705038-F1

21AM/ VIM

APPEALING UDC HEARING

VIM

08-30-2012

CLO

09-27-2012

705038-R1

21AM/ WXR

UDC HEARING 08-09-12 CODE: 307

VIM

10-09-2012

CLO

11-06-2012

969553-F1

21AM/ LOM

APPEALING IR FOR CODE 313/316

LOM

02-27-2019

CLD

04-01-2019

969553-R1

21AM/ WXR

APPEALING IR FOR CODE 313/316

LOM

04-30-2019

REJ

04-30-2019

1021730-F1

13GM/ LOM

APPEALING DENIAL OF RIS/COMP REL

LOM

05-23-2020

ACC

05-23-2020

G0000

9 REMEDY SUBMISSION(S) SELECTED TRANSACTION SUCCESSFULLY COMPLETED

Exhibit E page 40

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INMATE DISCIPLINE DATA

*

CHRONOLOGICAL DISCIPLINARY RECORD

*

06-02-2020

*

17:51:59

REGISTER NO: 27173-016 NAME..: REED, VINCENT

FUNCTION...: PRT

FORMAT: CHRONO LIMIT TO ___ MOS PRIOR TO 06-02-2020

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 3223700 - SANCTIONED INCIDENT DATE/TIME: 02-12-2019 1245

UDC HEARING DATE/TIME: 02-14-2019 0800

FACL/UDC/CHAIRPERSON.: LOM/J/J GARCIA

APPEAL CASE NUMBER(S): 969553

REPORT REMARKS.......: STATED TO TALK TO CASE MANAGER TO VERIFY HE WAS TALKING

TO HIM.CASE

313 LYING OR FALSIFYING STATEMENT - FREQ: 1

CHG QTRS / CS

COMP: LAW: CHANGE OF QUARTER FOR J-UNIT PROGRAMMING UNIT BACK

TO PARENT UNIT (F-UNIT)

LOSE JOB / CS

COMP: LAW: LOSS OF JOB IN MAIN CORRIDOR.

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 2336099 - SANCTIONED INCIDENT DATE/TIME: 08-06-2012 2200

UDC HEARING DATE/TIME: 08-09-2012 1210

FACL/UDC/CHAIRPERSON.: VIM/E1/2/ARELLANO

APPEAL CASE NUMBER(S): 705038

REPORT REMARKS.......: INMATE HAD A POOR ATTITUDE.

307 REFUSING TO OBEY AN ORDER - FREQ: 1

LP PHONE / 30 DAYS / CS

COMP: LAW: TO START ON 08-10-2012 AND END 9-07-2012.

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 2313498 - SANCTIONED INCIDENT DATE/TIME: 06-07-2012 1810

DHO HEARING DATE/TIME: 06-28-2012 1024

FACL/CHAIRPERSON.....: VIM/R.A. BYRD

REPORT REMARKS.......: INMATE ADMITS- YES, I PLEAD GUILTY

104 POSSESSING A DANGEROUS WEAPON - FREQ: 1

DIS GCT / 41 DAYS / CS

COMP:010 LAW:P LOSS OF 41 DAYS GOOD CONDUCT TIME

DS

/ 60 DAYS / CS

COMP: LAW: 60 DAYS DISCIPLINARY SEGREGATION TILL 8-26-12

ACTIVATE IR 2252483

LP COMM / 1 YEARS / CS

COMP: LAW: 1 YEAR LOSS OF COMMISSARY TILL 6-28-13

LP VISIT / 1 YEARS / CS

COMP: LAW: 1 YEAR LOSS OF VISITS TILL 6-28-13

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 2252483 - SANCTIONED INCIDENT DATE/TIME: 01-05-2012 1030

DHO HEARING DATE/TIME: 01-12-2012 0918

FACL/CHAIRPERSON.....: VIM/R.A. BYRD

REPORT REMARKS.......: INMATE DENIES- I DIDN'T SAY THAT, I DID SAY GO LOOK IN

THE MIRROR

G0002

MORE PAGES TO FOLLOW . . .

Exhibit F page 41

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 42 of 229 Page ID #:951

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INMATE DISCIPLINE DATA

*

CHRONOLOGICAL DISCIPLINARY RECORD

*

06-02-2020

*

17:51:59

REGISTER NO: 27173-016 NAME..: REED, VINCENT

FUNCTION...: PRT

FORMAT: CHRONO LIMIT TO ___ MOS PRIOR TO 06-02-2020

DHO HEARING DATE/TIME: 01-12-2012 0918 REPORT 2252483 CONTINUED

312 BEING INSOLENT TO STAFF MEMBER - FREQ: 1

DIS GCT / 13 DAYS / CS

COMP:010 LAW:P LOSS OF 13 DAYS GOOD CONDUCT TIME

DS

/ 15 DAYS / CS / SUSPENDED 180 DAYS

COMP: LAW: 15 DAYS DISCIPLINARY SEGREGATION,SUSPENDED PENDING

180 DAYS CLEAR CONDUCT

LP COMM / 3 MONTHS / CS

COMP: LAW: 3 MONTHS LOSS OF COMMISSARY TILL 4-12-12

MON REST / 25.00 DOLLARS / CS

COMP: LAW: MONETARY FINE IN THE AMOUNT OF $25.00

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 2054692 - SANCTIONED INCIDENT DATE/TIME: 08-16-2010 2110

DHO HEARING DATE/TIME: 09-02-2010 0957

FACL/CHAIRPERSON.....: ALM/BITTENBEND

REPORT REMARKS.......: I/M CAUGHT TAKING CIGARETTE BUTTS FROM STAFF BREAK AREA

CONCEALING THEM IN JOCK STRAP AND PLASTIC BAG

305 POSSESSING UNAUTHORIZED ITEM - FREQ: 1

DIS GCT / 13 DAYS / CS

COMP:010 LAW:P PUNISH FOR MISCONDUCT

DS

/ 15 DAYS / CS

COMP: LAW: PUNISH FOR MISCONDUCT

FF NVGCT / 30 DAYS / CS

COMP:010 LAW:P PUNISH FOR MISCONDUCT

LOSE JOB / 1 YEARS / CS

COMP: LAW: PREVENT MISCONDUCT

REMOVE FROM CCS - PM WORK DETAIL

LP COMM / 6 MONTHS / CS

COMP: LAW: PREVENT MISCONDUCT

EXPIRES - 3/2/11

LP PHONE / 6 MONTHS / CS

COMP: LAW: PREVENT MISCONDUCT

EXPIRES - 3/2/11

LP VISIT / 6 MONTHS / CS

COMP: LAW: PREVENT MISCONDUCT

EXPIRES - 3/2/11

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 1915361 - SANCTIONED INCIDENT DATE/TIME: 09-08-2009 1200

DHO HEARING DATE/TIME: 09-17-2009 1006

FACL/CHAIRPERSON.....: ALM/BITTENBEND

REPORT REMARKS.......: I/M WAS INSOLENT TOWARD LT.

312 BEING INSOLENT TO STAFF MEMBER - FREQ: 1

DIS GCT / 13 DAYS / CS

COMP:010 LAW:P PUNISH FOR MISCONDUCT

G0002

MORE PAGES TO FOLLOW . . .

Exhibit F page 42

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 43 of 229 Page ID #:952

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INMATE DISCIPLINE DATA CHRONOLOGICAL DISCIPLINARY RECORD

*

06-02-2020

*

17:51:59

REGISTER NO: 27173-016 NAME..: REED, VINCENT

FUNCTION...: PRT

FORMAT: CHRONO LIMIT TO ___ MOS PRIOR TO 06-02-2020

DHO HEARING DATE/TIME: 09-17-2009 1006 REPORT 1915361 CONTINUED

DS

/ 15 DAYS / CS / SUSPENDED 180 DAYS

COMP: LAW: SUSPEND 180 DAYS PENDING CLEAR CONDUCT

PREVENT MISCONDUCT

LP COMM / 4 MONTHS / CS

COMP: LAW: PREVENT MISCONDUCT

EXPIRES - 1/17/10

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 1875973 - SANCTIONED INCIDENT DATE/TIME: 06-02-2009 1030

UDC HEARING DATE/TIME: 06-03-2009 0830

FACL/UDC/CHAIRPERSON.: ALM/UNIT 2A/R.LAVELLA

REPORT REMARKS.......: ADMITS WEARING SHIRT.

306 REFUSING WORK/PGM ASSIGNMENT - FREQ: 1

LP COMM / 1 MONTHS / CS / SUSPENDED 90 DAYS

COMP: LAW: SUSP 90 DAYS CLEAR CONDUCT - CONSEC TO BELOW

307 REFUSING TO OBEY AN ORDER - FREQ: 1

LP COMM / 1 MONTHS / CS / SUSPENDED 90 DAYS

COMP: LAW: SUSP 90 DAYS CLEAR CONDUCT

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 1710241 - SANCTIONED INCIDENT DATE/TIME: 03-13-2008 1830

UDC HEARING DATE/TIME: 03-16-2008 1300

FACL/UDC/CHAIRPERSON.: GIL/B/AMOS

REPORT REMARKS.......: INMATE REFUSED TO MOVE FROM ONE CELL TO ANOTHER IN SHU.

306 REFUSING WORK/PGM ASSIGNMENT - FREQ: 1

LP COMM / 30 DAYS / CS

COMP: LAW: LOSS OF COMMISSARY FOR 30 DAYS.

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 1707806 - SANCTIONED INCIDENT DATE/TIME: 03-07-2008 1139

DHO HEARING DATE/TIME: 03-13-2008 0905

FACL/CHAIRPERSON.....: GIL/HEADY

REPORT REMARKS.......: INMATE STATES HIS CELLMATE HIT HIM SO HE JUST DEFENDED

HIMSELF. STAFF OBSERVED BOTH OT THEM SWING AT EACH OTHE

201 FIGHTING WITH ANOTHER PERSON - FREQ: 1

DIS GCT / 27 DAYS / CS

COMP:010 LAW:P DISALLOW 27 DAYS GCT

DS

/ 30 DAYS / CS

COMP: LAW: 30 DAYS D/S

G0005

TRANSACTION SUCCESSFULLY COMPLETED - CONTINUE PROCESSING IF DESIRED

Exhibit F page 43

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 44 of 229 Page ID #:953

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PAGE 001

*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:27:12

REGNO..: 46693-298 NAME: GARCIA, FELIX SAMUEL

RESP OF: LOM PHONE..: 805-735-2771
PROJ REL MT: BOP SUBST ABUSE TRTMT REL PROJ REL DT: 11-06-2020

FAX: 805-736-1292 RACE/SEX...: WHITE / MALE AGE: 35 PAR ELIG DT: N/A PAR HEAR DT:

G0002

MORE PAGES TO FOLLOW . . .

Exhibit G page 44

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 45 of 229 Page ID #:954

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PAGE 002

*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:27:12

REGNO..: 46693-298 NAME: GARCIA, FELIX SAMUEL

RESP OF: LOM PHONE..: 805-735-2771 FAX: 805-736-1292 HOME DETENTION ELIGIBILITY DATE: 05-06-2020

THE FOLLOWING SENTENCE DATA IS FOR THE INMATE'S CURRENT COMMITMENT. THE INMATE IS PROJECTED FOR RELEASE: 11-06-2020 VIA 3621E CMPL

----------------------CURRENT JUDGMENT/WARRANT NO: 010 ------------------------

COURT OF JURISDICTION...........: CALIFORNIA, SOUTHERN DISTRICT DOCKET NUMBER...................: 14CR0657-BTM JUDGE...........................: MOSKOWITZ DATE SENTENCED/PROBATION IMPOSED: 07-24-2015 DATE COMMITTED..................: 09-25-2015 HOW COMMITTED...................: US DISTRICT COURT COMMITMENT PROBATION IMPOSED...............: NO

FELONY ASSESS MISDMNR ASSESS FINES

NON-COMMITTED.: $100.00

$00.00

$00.00

COSTS $00.00

RESTITUTION...: PROPERTY: NO SERVICES: NO

AMOUNT: $00.00

-------------------------CURRENT OBLIGATION NO: 010 ---------------------------

OFFENSE CODE....: 383

21:841 SCH II NON-NARCOTIC

OFF/CHG: 21:841(A)(1) POSSESSION OF METHAMPHETAMINE WITH INTENT

TO DISTRIBUTE.

SENTENCE PROCEDURE.............: 3559 PLRA SENTENCE

SENTENCE IMPOSED/TIME TO SERVE.: 87 MONTHS

TERM OF SUPERVISION............:

3 YEARS

DATE OF OFFENSE................: 03-04-2014

G0002

MORE PAGES TO FOLLOW . . .

Exhibit G page 45

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 46 of 229 Page ID #:955

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PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:27:12

REGNO..: 46693-298 NAME: GARCIA, FELIX SAMUEL

RESP OF: LOM PHONE..: 805-735-2771 FAX: 805-736-1292 -------------------------CURRENT COMPUTATION NO: 010 --------------------------

COMPUTATION 010 WAS LAST UPDATED ON 05-28-2020 AT DSC AUTOMATICALLY COMPUTATION CERTIFIED ON 09-28-2015 BY DESIG/SENTENCE COMPUTATION CTR

THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN CURRENT COMPUTATION 010: 010 010

DATE COMPUTATION BEGAN..........: 09-25-2015

TOTAL TERM IN EFFECT............: 87 MONTHS

TOTAL TERM IN EFFECT CONVERTED..:

7 YEARS

EARLIEST DATE OF OFFENSE........: 03-04-2014

3 MONTHS

JAIL CREDIT.....................: FROM DATE 03-04-2014

THRU DATE 03-25-2014

TOTAL PRIOR CREDIT TIME.........: 22

TOTAL INOPERATIVE TIME..........: 0

TOTAL GCT EARNED AND PROJECTED..: 391

TOTAL GCT EARNED................: 216

STATUTORY RELEASE DATE PROJECTED: 11-06-2021

TWO THIRDS DATE.................: 07-03-2020

EXPIRATION FULL TERM DATE.......: 12-02-2022

TIME SERVED.....................:

4 YEARS

PERCENTAGE OF FULL TERM SERVED..: 65.5

PERCENT OF STATUTORY TERM SERVED: 76.8

9 MONTHS

PROJECTED SATISFACTION DATE.....: 11-06-2020 PROJECTED SATISFACTION METHOD...: 3621E CMPL

S0055

NO PRIOR SENTENCE DATA EXISTS FOR THIS INMATE

Exhibit G page 46

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 47 of 229 Page ID #:956

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*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

06-02-2020

PAGE 001 OF

17:47:23

FUNCTION: L-P SCOPE: REG EQ 46693-298

OUTPUT FORMAT: SAN

-------LIMITED TO SUBMISSIONS WHICH MATCH ALL LIMITATIONS KEYED BELOW----------

DT RCV: FROM __________ THRU __________ DT STS: FROM __________ THRU __________

DT STS: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT RDU

DT TDU: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT TRT

STS/REAS: ______ ______ ______ ______ ______ ______ ______ ______ ______ ______

SUBJECTS: ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____

EXTENDED: _ REMEDY LEVEL: _ _

RECEIPT: _ _ _ "OR" EXTENSION: _ _ _

RCV OFC : EQ ____

____

____

____

____

____

TRACK: DEPT: __________ __________ __________ __________ __________ __________

PERSON: ___

___

___

___

___

___

TYPE: ___

___

___

___

___

___

EVNT FACL: EQ ____

____

____

____

____

____

RCV FACL.: EQ ____

____

____

____

____

____

RCV UN/LC: EQ __________ __________ __________ __________ __________ __________

RCV QTR..: EQ __________ __________ __________ __________ __________ __________

ORIG FACL: EQ ____

____

____

____

____

____

ORG UN/LC: EQ __________ __________ __________ __________ __________ __________

ORIG QTR.: EQ __________ __________ __________ __________ __________ __________

G0002

MORE PAGES TO FOLLOW . . .

Exhibit H page 47

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 48 of 229 Page ID #:957

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*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

PAGE 002 OF 002 *

SANITIZED FORMAT

*

06-02-2020 17:47:23

REMEDY-ID

SUBJ1/SUBJ2 --------------------ABSTRACT------------------------

RCV-OFC

RCV-FACL

DATE-RCV

STATUS

STATUS-DATE

865488-R1

10ZM/ SCR

TRANSFER DENIED

BML

06-06-2016

REJ

06-06-2016

873760-F1

10CM/ BML

WHY WAS TRANSFER DENIED

BML

08-23-2016

REJ

08-23-2016

873760-F2

10CM/ BML

WHY WAS TRANSFER DENIED

BML

08-31-2016

CLO

09-08-2016

877498-R1

31ZM/ SCR

CONVICTION SET ASIDE AND CHARGE DISMISSED

BML

09-23-2016

REJ

09-23-2016

873760-R1

10CM/ SCR

WHY WAS TRANSFER DENIED

BML

10-03-2016

REJ

10-03-2016

879345-F1

10CM/ BML

WANTS 313 TRANSFER

BML

10-14-2016

CLD

10-27-2016

873760-R2

10CM/ SCR

WHY WAS TRANSFER DENIED

BML

10-19-2016

REJ

10-19-2016

873760-R3

10CM/ SCR

WHY WAS TRANSFER DENIED

BML

10-31-2016

CLD

11-17-2016

879345-R1

10CM/ SCR

WANTS 313 TRANSFER

BML

11-21-2016

CLO

12-12-2016

873760-A1

10CM/ BOP

WHY WAS TRANSFER DENIED

BML

01-19-2017

VOD

02-15-2017

873760-A2

10CM/ BOP

WHY WAS TRANSFER DENIED

BML

01-19-2017

REJ

02-15-2017

873760-A3

10CM/ BOP

WHY WAS TRANSFER DENIED

BML

03-06-2017

CLD

06-26-2017

G0000

12 REMEDY SUBMISSION(S) SELECTED TRANSACTION SUCCESSFULLY COMPLETED

Exhibit H page 48

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 49 of 229 Page ID #:958

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*

PAGE 001 OF 001 *

INMATE DISCIPLINE DATA CHRONOLOGICAL DISCIPLINARY RECORD

*

06-02-2020

*

17:50:50

REGISTER NO: 46693-298 NAME..: GARCIA, FELIX SAMUEL

FUNCTION...: PRT

FORMAT: CHRONO LIMIT TO ___ MOS PRIOR TO 06-02-2020

------------------------------------------------------------------------------REPORT NUMBER/STATUS.: 3207314 - SANCTIONED INCIDENT DATE/TIME: 12-29-2018 1300 UDC HEARING DATE/TIME: 01-03-2019 1130 FACL/UDC/CHAIRPERSON.: LOF/B/DIAZ REPORT REMARKS.......: STATED, "IT WAS A MISUNDERSTANDING"
307 REFUSING TO OBEY AN ORDER - FREQ: 1 LP COMM / 30 DAYS / CS FROM: 01-03-2019 THRU: 02-01-2019 COMP: LAW: LP PHONE / 30 DAYS / CS FROM: 01-03-2019 THRU: 02-01-2019 COMP: LAW:
------------------------------------------------------------------------------REPORT NUMBER/STATUS.: 3108076 - SANCTIONED INCIDENT DATE/TIME: 04-03-2018 1700 UDC HEARING DATE/TIME: 04-05-2018 0954 FACL/UDC/CHAIRPERSON.: LOF/A/A ZEPEDA REPORT REMARKS.......: I/M ADMITTED THAT HE WAS WRONG ABOUT NOT FOLLOWING THE
ORDER TO TURN IN HIS ID CARD WHEN ORDERED TO DO SO. 307 REFUSING TO OBEY AN ORDER - FREQ: 1
LP COMM / 60 DAYS / CS COMP: LAW: LOSS OF COMMISSARY 60 DAYS BEGINNING 04-05-2018 LP PHONE / 60 DAYS / CS COMP: LAW: LOSS OF PHONE 60 DAYS BEGINNING 04-05-2018

G0005

TRANSACTION SUCCESSFULLY COMPLETED - CONTINUE PROCESSING IF DESIRED

Exhibit I page 49

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 50 of 229 Page ID #:959

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*

PAGE 001

*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:27:50

REGNO..: 54460-097 NAME: BROWN, ANDRE

RESP OF: LOM PHONE..: 805-735-2771
PROJ REL MT: GOOD CONDUCT TIME RELEASE PROJ REL DT: 10-06-2024

FAX: 805-736-1292 RACE/SEX...: BLACK / MALE AGE: 54 PAR ELIG DT: N/A PAR HEAR DT:

G0002

MORE PAGES TO FOLLOW . . .

Exhibit J page 50

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 51 of 229 Page ID #:960

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*

PAGE 002

*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:27:50

REGNO..: 54460-097 NAME: BROWN, ANDRE

RESP OF: LOM PHONE..: 805-735-2771 FAX: 805-736-1292 HOME DETENTION ELIGIBILITY DATE: 04-06-2024

THE FOLLOWING SENTENCE DATA IS FOR THE INMATE'S CURRENT COMMITMENT. THE INMATE IS PROJECTED FOR RELEASE: 10-06-2024 VIA GCT REL

----------------------CURRENT JUDGMENT/WARRANT NO: 030 ------------------------

COURT OF JURISDICTION...........: CALIFORNIA, CENTRAL DISTRICT DOCKET NUMBER...................: CR 13-00822-ODW-2 JUDGE...........................: WRIGHT DATE SENTENCED/PROBATION IMPOSED: 01-28-2019 DATE COMMITTED..................: 06-03-2019 HOW COMMITTED...................: US DISTRICT COURT COMMITMENT PROBATION IMPOSED...............: NO

FELONY ASSESS MISDMNR ASSESS FINES

NON-COMMITTED.: $200.00

$00.00

$00.00

COSTS $00.00

RESTITUTION...: PROPERTY: NO SERVICES: NO

AMOUNT: $00.00

-------------------------CURRENT OBLIGATION NO: 010 ---------------------------

OFFENSE CODE....: 391

21:846 SEC 841-851 ATTEMPT

OFF/CHG: 21:846:CONSPIRACY TO MANUFACTURE, DISTRIBUTE, AND POSSESS WITH

INTENT TO DISTRIBUTE PHENCYCLIDINE (PCP), AND ILLEGALLY

POSSESS A LISTED CHEMICAL, 21:841(A)(1),(B)(1)(B)(IV)

:DISTRIBUTION AND POSSESSION WITH INTENT TO DISTRIBUTE PCP

SENTENCE PROCEDURE.............: 3559 PLRA SENTENCE

SENTENCE IMPOSED/TIME TO SERVE.: 150 MONTHS

TERM OF SUPERVISION............:

5 YEARS

DATE OF OFFENSE................: 01-30-2014

G0002

MORE PAGES TO FOLLOW . . .

Exhibit J page 51

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 52 of 229 Page ID #:961

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*

PAGE 003

*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:27:50

REGNO..: 54460-097 NAME: BROWN, ANDRE

RESP OF: LOM PHONE..: 805-735-2771 FAX: 805-736-1292 -------------------------CURRENT COMPUTATION NO: 030 --------------------------

COMPUTATION 030 WAS LAST UPDATED ON 07-01-2019 AT DSC AUTOMATICALLY COMPUTATION CERTIFIED ON 07-02-2019 BY DESIG/SENTENCE COMPUTATION CTR

THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN CURRENT COMPUTATION 030: 030 010

DATE COMPUTATION BEGAN..........: 01-28-2019 TOTAL TERM IN EFFECT............: 150 MONTHS TOTAL TERM IN EFFECT CONVERTED..: 12 YEARS EARLIEST DATE OF OFFENSE........: 01-30-2014

6 MONTHS

JAIL CREDIT.....................: FROM DATE 02-12-2014

THRU DATE 01-27-2019

TOTAL PRIOR CREDIT TIME.........: 1811

TOTAL INOPERATIVE TIME..........: 0

TOTAL GCT EARNED AND PROJECTED..: 674

TOTAL GCT EARNED................: 324

STATUTORY RELEASE DATE PROJECTED: 10-06-2024

TWO THIRDS DATE.................: 06-12-2022

EXPIRATION FULL TERM DATE.......: 08-11-2026

TIME SERVED.....................:

6 YEARS

PERCENTAGE OF FULL TERM SERVED..: 50.4

PERCENT OF STATUTORY TERM SERVED: 59.2

3 MONTHS

21 DAYS

PROJECTED SATISFACTION DATE.....: 10-06-2024 PROJECTED SATISFACTION METHOD...: GCT REL

G0002

MORE PAGES TO FOLLOW . . .

Exhibit J page 52

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 53 of 229 Page ID #:962

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*

PAGE 004

*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:27:50

REGNO..: 54460-097 NAME: BROWN, ANDRE

RESP OF: LOM

THE FOLLOWING SENTENCE DATA IS FOR THE INMATE'S PRIOR COMMITMENT. THE INMATE WAS SCHEDULED FOR RELEASE: 07-06-1993 VIA FT REL

------------------------PRIOR JUDGMENT/WARRANT NO: 020 ------------------------

COURT OF JURISDICTION...........: CALIFORNIA, CENTRAL DISTRICT DOCKET NUMBER...................: CR-89-611-JMI JUDGE...........................: IDEMAN DATE SENTENCED/PROBATION IMPOSED: 12-20-1989 DATE SUPERVISION REVOKED........: 02-01-1993 TYPE OF SUPERVISION REVOKED.....: REG DATE COMMITTED..................: 04-22-1993 HOW COMMITTED...................: COMMIT OF SUPERVISED REL VIOL PROBATION IMPOSED...............: NO

RESTITUTION...: PROPERTY: NO SERVICES: NO

AMOUNT: $00.00

---------------------------PRIOR OBLIGATION NO: 010 ---------------------------

OFFENSE CODE....: 132

18:922(C),931 FIREARMS NATL

OFF/CHG: FALSE STATEMENT IN ACQUISITION OF FIREARMS, 18 USC 922(A)(6)

FORFEITURE OF FIREARMS, 18 USC 924(D)(1).

SENTENCE PROCEDURE.............: SUPERVISED RELEASE VIOLATION

SENTENCE IMPOSED/TIME TO SERVE.: 12 MONTHS

NEW SENTENCE IMPOSED...........:

6 MONTHS

BASIS FOR CHANGE...............: 3583 SUPERVISED RELEASE VIOL

DATE OF OFFENSE................: 11-28-1987

G0002

MORE PAGES TO FOLLOW . . .

Exhibit J page 53

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 54 of 229 Page ID #:963

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*

PAGE 005

*

PUBLIC INFORMATION INMATE DATA
AS OF 07-06-1993

*

06-02-2020

*

17:27:50

REGNO..: 54460-097 NAME: BROWN, ANDRE

RESP OF: LOM PHONE..: 805-735-2771 FAX: 805-736-1292 ---------------------------PRIOR COMPUTATION NO: 020 --------------------------

COMPUTATION 020 WAS LAST UPDATED ON 04-27-1993 AT FTW AUTOMATICALLY

THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN PRIOR COMPUTATION 020: 020 010

DATE COMPUTATION BEGAN..........: 02-01-1993

TOTAL TERM IN EFFECT............:

6 MONTHS

TOTAL TERM IN EFFECT CONVERTED..:

6 MONTHS

EARLIEST DATE OF OFFENSE........: 11-28-1987

JAIL CREDIT.....................: FROM DATE 01-07-1993

THRU DATE 01-31-1993

TOTAL PRIOR CREDIT TIME.........: 25 TOTAL INOPERATIVE TIME..........: 0 TOTAL GCT EARNED AND PROJECTED..: 0 TOTAL GCT EARNED................: 0 STATUTORY RELEASE DATE PROJECTED: 07-06-1993 EXPIRATION FULL TERM DATE.......: 07-06-1993

ACTUAL SATISFACTION DATE........: 07-06-1993 ACTUAL SATISFACTION METHOD......: FT REL ACTUAL SATISFACTION FACILITY....: FTW ACTUAL SATISFACTION KEYED BY....: TLG

DAYS REMAINING..................: 0 FINAL PUBLIC LAW DAYS...........: 0

G0002

MORE PAGES TO FOLLOW . . .

Exhibit J page 54

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 55 of 229 Page ID #:964

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*

PAGE 006

*

PUBLIC INFORMATION INMATE DATA
AS OF 07-05-1990

*

06-02-2020

*

17:27:50

REGNO..: 54460-097 NAME: BROWN, ANDRE

RESP OF: LOM

THE FOLLOWING SENTENCE DATA IS FOR THE INMATE'S PRIOR COMMITMENT. THE INMATE WAS SCHEDULED FOR RELEASE: 07-05-1990 VIA FT REL

------------------------PRIOR JUDGMENT/WARRANT NO: 010 ------------------------

COURT OF JURISDICTION...........: CALIFORNIA, CENTRAL DISTRICT DOCKET NUMBER...................: CR-89-611-JMI JUDGE...........................: IDEMAN DATE SENTENCED/PROBATION IMPOSED: 12-20-1989 DATE COMMITTED..................: 01-24-1990 HOW COMMITTED...................: US DISTRICT COURT COMMITMENT PROBATION IMPOSED...............: NO

RESTITUTION...: PROPERTY: NO SERVICES: NO

AMOUNT: $00.00

---------------------------PRIOR OBLIGATION NO: 010 ---------------------------

OFFENSE CODE....: 132

18:922(C),931 FIREARMS NATL

OFF/CHG: FALSE STATEMENT IN ACQUISITION OF FIREARMS, 18 USC 922(A)(6)

FORFEITURE OF FIREARMS, 18 USC 924(D)(1).

SENTENCE PROCEDURE.............: 3559 SRA SENTENCE

SENTENCE IMPOSED/TIME TO SERVE.: 12 MONTHS

TERM OF SUPERVISION............:

2 YEARS

DATE OF OFFENSE................: 11-28-1987

---------------------------PRIOR COMPUTATION NO: 010 --------------------------

COMPUTATION 010 WAS LAST UPDATED ON 03-20-1990 AT BRN AUTOMATICALLY

THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN PRIOR COMPUTATION 010: 010 010

G0002

MORE PAGES TO FOLLOW . . .

Exhibit J page 55

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 56 of 229 Page ID #:965

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*

PUBLIC INFORMATION

*

PAGE 007 OF 007 *

INMATE DATA

*

AS OF 07-05-1990

REGNO..: 54460-097 NAME: BROWN, ANDRE

RESP OF: LOM

PHONE..: 805-735-2771 FAX: 805-736-1292

DATE COMPUTATION BEGAN..........: 12-20-1989

TOTAL TERM IN EFFECT............: 12 MONTHS

TOTAL TERM IN EFFECT CONVERTED..:

1 YEARS

EARLIEST DATE OF OFFENSE........: 11-28-1987

JAIL CREDIT.....................:

FROM DATE 06-06-1989 07-31-1989

THRU DATE 06-30-1989 12-19-1989

TOTAL PRIOR CREDIT TIME.........: 167 TOTAL INOPERATIVE TIME..........: 0 TOTAL GCT EARNED AND PROJECTED..: 0 TOTAL GCT EARNED................: 0 STATUTORY RELEASE DATE PROJECTED: 07-05-1990 EXPIRATION FULL TERM DATE.......: 07-05-1990

ACTUAL SATISFACTION DATE........: 07-05-1990 ACTUAL SATISFACTION METHOD......: FT REL ACTUAL SATISFACTION FACILITY....: LOS ACTUAL SATISFACTION KEYED BY....: BDM

DAYS REMAINING..................: 0 FINAL PUBLIC LAW DAYS...........: 0

06-02-2020 17:27:50

G0000

TRANSACTION SUCCESSFULLY COMPLETED

Exhibit J page 56

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 57 of 229 Page ID #:966

VIMFY

*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

06-02-2020

PAGE 001 OF

17:47:56

FUNCTION: L-P SCOPE: REG EQ 54460-097

OUTPUT FORMAT: SAN

-------LIMITED TO SUBMISSIONS WHICH MATCH ALL LIMITATIONS KEYED BELOW----------

DT RCV: FROM __________ THRU __________ DT STS: FROM __________ THRU __________

DT STS: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT RDU

DT TDU: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT TRT

STS/REAS: ______ ______ ______ ______ ______ ______ ______ ______ ______ ______

SUBJECTS: ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____

EXTENDED: _ REMEDY LEVEL: _ _

RECEIPT: _ _ _ "OR" EXTENSION: _ _ _

RCV OFC : EQ ____

____

____

____

____

____

TRACK: DEPT: __________ __________ __________ __________ __________ __________

PERSON: ___

___

___

___

___

___

TYPE: ___

___

___

___

___

___

EVNT FACL: EQ ____

____

____

____

____

____

RCV FACL.: EQ ____

____

____

____

____

____

RCV UN/LC: EQ __________ __________ __________ __________ __________ __________

RCV QTR..: EQ __________ __________ __________ __________ __________ __________

ORIG FACL: EQ ____

____

____

____

____

____

ORG UN/LC: EQ __________ __________ __________ __________ __________ __________

ORIG QTR.: EQ __________ __________ __________ __________ __________ __________

G0002

MORE PAGES TO FOLLOW . . .

Exhibit K page 57

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 58 of 229 Page ID #:967

VIMFY

*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

PAGE 002 OF 002 *

SANITIZED FORMAT

*

06-02-2020 17:47:56

REMEDY-ID

SUBJ1/SUBJ2 --------------------ABSTRACT------------------------

RCV-OFC

RCV-FACL

DATE-RCV

STATUS

STATUS-DATE

836074-F1

34AJ/ LOS

COMPLAINT AGAINST STAFF

LOS

09-18-2015

REJ

09-18-2015

836790-F1

20DJ/ LOS

DHO APPEAL AND STAFF MISCONDUCT

LOS

09-24-2015

CLO

10-09-2015

836790-R1

20DJ/ WXR

DHO APPEAL AND STAFF MISCONDUCT

LOS

10-22-2015

CLD

11-03-2015

G0000

3 REMEDY SUBMISSION(S) SELECTED TRANSACTION SUCCESSFULLY COMPLETED

Exhibit K page 58

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 59 of 229 Page ID #:968

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*

PAGE 001 OF 001 *

INMATE DISCIPLINE DATA CHRONOLOGICAL DISCIPLINARY RECORD

*

06-02-2020

*

17:51:30

REGISTER NO: 54460-097 NAME..: BROWN, ANDRE

FUNCTION...: PRT

FORMAT: CHRONO LIMIT TO ___ MOS PRIOR TO 06-02-2020

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 3396495 - SANCTIONED INCIDENT DATE/TIME: 05-08-2020 1115

UDC HEARING DATE/TIME: 05-12-2020 1329

FACL/UDC/CHAIRPERSON.: LOM/F/FLOYD

REPORT REMARKS.......: BROWN BECAME INSOLENT WITH WRITER ABOUT LEGAL DOCUMENTS

312 BEING INSOLENT TO STAFF MEMBER - FREQ: 1

LP COMM / 30 DAYS / CS / SUSPENDED 180 DAYS

COMP: LAW: SUSPENDED 180 DAYS PENDING CLEAR CONDUCT.

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 2891363 - SANCTIONED INCIDENT DATE/TIME: 09-01-2016 1115

UDC HEARING DATE/TIME: 09-06-2016 0930

FACL/UDC/CHAIRPERSON.: LOS/5 SOUTH/C PETERSON

REPORT REMARKS.......: BASED ON WRITTEN STATEMENT IN SEC 11 OF I/R , WE FIND HE

COMMITTED PROHIBITTED ACT 307.

307 REFUSING TO OBEY AN ORDER - FREQ: 1

LP COMM / 30 DAYS / CS

COMP: LAW: LOSS OF COMMISARY FOR 30 DAYS, STARTING 09/07/2016

TO 10/06/2016

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 2759479 - SANCTIONED INCIDENT DATE/TIME: 09-10-2014 1315

DHO HEARING DATE/TIME: 09-16-2015 1130

DHO REPT DEL: 09-29-2015 1100

FACL/CHAIRPERSON.....: LOS/R. ALI

APPEAL CASE NUMBER(S): 836790

REPORT REMARKS.......: HE DENIED CHARGES AND STATED TWO STAFF WERE TELLING HIM

TO DO THINGS AT SAME TIME. DECISION BASED ON GREATER W.

312 BEING INSOLENT TO STAFF MEMBER - FREQ: 1

MON FINE / 5.00 DOLLARS / CS

COMP: LAW: MONETARY FINE OF $5.

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 2758457 - SANCTIONED INCIDENT DATE/TIME: 09-07-2015 0545

UDC HEARING DATE/TIME: 09-08-2015 1130

FACL/UDC/CHAIRPERSON.: LOS/5 SOUTH/C PETERSON

REPORT REMARKS.......: BASED ON WRITTEN STATEMENT IN SEC.11, WE FIND THAT HE

COMMITTED PROHIBITED ACT 312.

312 BEING INSOLENT TO STAFF MEMBER - FREQ: 1

LP VISIT / 15 DAYS / CS

COMP: LAW: LOSS OF VISITING FOR 15 DAYS, STARTING 9-10-15 TO

9-25-15.

G0005

TRANSACTION SUCCESSFULLY COMPLETED - CONTINUE PROCESSING IF DESIRED

Exhibit L page 59

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 60 of 229 Page ID #:969

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*

PAGE 001

*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:26:33

REGNO..: 34183-060 NAME: FEARS, SHAWN L

RESP OF: LOM PHONE..: 805-735-2771
PROJ REL MT: GOOD CONDUCT TIME RELEASE PROJ REL DT: 08-19-2021

FAX: 805-736-1292 RACE/SEX...: BLACK / MALE AGE: 50 PAR ELIG DT: N/A PAR HEAR DT:

G0002

MORE PAGES TO FOLLOW . . .

Exhibit M page 60

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 61 of 229 Page ID #:970

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*

PAGE 002

*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:26:33

REGNO..: 34183-060 NAME: FEARS, SHAWN L

RESP OF: LOM PHONE..: 805-735-2771 FAX: 805-736-1292 HOME DETENTION ELIGIBILITY DATE: 05-15-2021

THE FOLLOWING SENTENCE DATA IS FOR THE INMATE'S CURRENT COMMITMENT. THE INMATE IS PROJECTED FOR RELEASE: 08-19-2021 VIA GCT REL

----------------------CURRENT JUDGMENT/WARRANT NO: 030 ------------------------

COURT OF JURISDICTION...........: OHIO, NORTHERN DISTRICT DOCKET NUMBER...................: 1:91CR331 JUDGE...........................: BOYKO DATE SENTENCED/PROBATION IMPOSED: 04-28-1992 DATE SUPERVISION REVOKED........: 08-04-2011 TYPE OF SUPERVISION REVOKED.....: REG DATE COMMITTED..................: 10-11-2011 HOW COMMITTED...................: COMMIT OF SUPERVISED REL VIOL PROBATION IMPOSED...............: NO

FELONY ASSESS MISDMNR ASSESS FINES

NON-COMMITTED.: $50.00

$00.00

$00.00

COSTS $00.00

RESTITUTION...: PROPERTY: NO SERVICES: NO

AMOUNT: $00.00

-------------------------CURRENT OBLIGATION NO: 010 ---------------------------

OFFENSE CODE....: 391

21:846 SEC 841-851 ATTEMPT

OFF/CHG: T21:846 & 841(A)(1), CONSPIRACY TO POSSESS WITH INTENT TO

DISTRIBUTE 15 KILOGRAMS OF COCAINE,SRT VIOLATOR

SENTENCE PROCEDURE.............: SUPERVISED RELEASE VIOLATION SENTENCE IMPOSED/TIME TO SERVE.: 32 MONTHS CLASS OF OFFENSE...............: CLASS A FELONY DATE OF OFFENSE................: 10-24-1991

G0002

MORE PAGES TO FOLLOW . . .

Exhibit M page 61

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 62 of 229 Page ID #:971

VIMFY

*

PAGE 003

*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:26:33

REGNO..: 34183-060 NAME: FEARS, SHAWN L

RESP OF: LOM PHONE..: 805-735-2771 FAX: 805-736-1292 -------------------------CURRENT COMPUTATION NO: 030 --------------------------

COMPUTATION 030 WAS LAST UPDATED ON 10-18-2019 AT DSC AUTOMATICALLY COMPUTATION CERTIFIED ON 10-06-2011 BY DESIG/SENTENCE COMPUTATION CTR

THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN CURRENT COMPUTATION 030: 030 010

DATE COMPUTATION BEGAN..........: 05-11-2019

TOTAL TERM IN EFFECT............: 32 MONTHS

TOTAL TERM IN EFFECT CONVERTED..:

2 YEARS

EARLIEST DATE OF OFFENSE........: 10-24-1991

8 MONTHS

TOTAL PRIOR CREDIT TIME.........: 0

TOTAL INOPERATIVE TIME..........: 0

TOTAL GCT EARNED AND PROJECTED..: 144

TOTAL GCT EARNED................: 54

STATUTORY RELEASE DATE PROJECTED: 08-19-2021

TWO THIRDS DATE.................: 02-19-2021

EXPIRATION FULL TERM DATE.......: 01-10-2022

TIME SERVED.....................:

1 YEARS

PERCENTAGE OF FULL TERM SERVED..: 39.8

PERCENT OF STATUTORY TERM SERVED: 46.7

23 DAYS

PROJECTED SATISFACTION DATE.....: 08-19-2021 PROJECTED SATISFACTION METHOD...: GCT REL

G0002

MORE PAGES TO FOLLOW . . .

Exhibit M page 62

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 63 of 229 Page ID #:972

VIMFY

*

PAGE 004

*

PUBLIC INFORMATION INMATE DATA
AS OF 06-02-2020

*

06-02-2020

*

17:26:33

REGNO..: 34183-060 NAME: FEARS, SHAWN L

RESP OF: LOM

HOME DETENTION ELIGIBILITY DATE: 11-11-2018

THE FOLLOWING SENTENCE DATA IS FOR THE INMATE'S PRIOR COMMITMENT. THE INMATE WAS SCHEDULED FOR RELEASE: 05-11-2019 VIA GCT REL

------------------------PRIOR JUDGMENT/WARRANT NO: 020 ------------------------

COURT OF JURISDICTION...........: OHIO, NORTHERN DISTRICT DOCKET NUMBER...................: 1:10CR412-001 JUDGE...........................: BOYKO DATE SENTENCED/PROBATION IMPOSED: 08-04-2011 DATE COMMITTED..................: 10-11-2011 HOW COMMITTED...................: US DISTRICT COURT COMMITMENT PROBATION IMPOSED...............: NO

FELONY ASSESS MISDMNR ASSESS FINES

NON-COMMITTED.: $100.00

$00.00

$00.00

COSTS $00.00

RESTITUTION...: PROPERTY: NO SERVICES: NO

AMOUNT: $00.00

---------------------------PRIOR OBLIGATION NO: 010 ---------------------------

OFFENSE CODE....: 409

21:841 & 846 SEC 841-851

OFF/CHG: 21:841(A)(1),841(B)(1)(B),846&851;COCAINE PWITD AND

DISTRIBUTE AT LEAST 2KG OF COCAINE, CT.3

SENTENCE PROCEDURE.............: 3559 PLRA SENTENCE

SENTENCE IMPOSED/TIME TO SERVE.: 120 MONTHS

TERM OF SUPERVISION............:

8 YEARS

DATE OF OFFENSE................: 10-01-2010

G0002

MORE PAGES TO FOLLOW . . .

Exhibit M page 63

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 64 of 229 Page ID #:973

VIMFY

*

PAGE 005

*

PUBLIC INFORMATION INMATE DATA
AS OF 05-11-2019

*

06-02-2020

*

17:26:33

REGNO..: 34183-060 NAME: FEARS, SHAWN L

RESP OF: LOM PHONE..: 805-735-2771 FAX: 805-736-1292 ---------------------------PRIOR COMPUTATION NO: 020 --------------------------

COMPUTATION 020 WAS LAST UPDATED ON 09-30-2011 AT DSC AUTOMATICALLY COMPUTATION CERTIFIED ON 10-06-2011 BY DESIG/SENTENCE COMPUTATION CTR

THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN PRIOR COMPUTATION 020: 020 010

DATE COMPUTATION BEGAN..........: 08-04-2011 TOTAL TERM IN EFFECT............: 120 MONTHS TOTAL TERM IN EFFECT CONVERTED..: 10 YEARS EARLIEST DATE OF OFFENSE........: 10-01-2010

JAIL CREDIT.....................: FROM DATE 08-24-2010

THRU DATE 08-03-2011

TOTAL PRIOR CREDIT TIME.........: 345

TOTAL INOPERATIVE TIME..........: 0

TOTAL GCT EARNED AND PROJECTED..: 470

TOTAL GCT EARNED................: 470

STATUTORY RELEASE DATE PROJECTED: 05-11-2019

TWO THIRDS DATE.................: 04-24-2017

EXPIRATION FULL TERM DATE.......: 08-23-2020

TIME SERVED.....................:

8 YEARS

PERCENTAGE OF FULL TERM SERVED..: 87.1

PERCENT OF STATUTORY TERM SERVED: 100.0

8 MONTHS

17 DAYS

ACTUAL SATISFACTION DATE........: 05-11-2019 ACTUAL SATISFACTION METHOD......: GCT REL ACTUAL SATISFACTION FACILITY....: LOM ACTUAL SATISFACTION KEYED BY....: DDJ

DAYS REMAINING..................: 470 FINAL PUBLIC LAW DAYS...........: 0

G0002

MORE PAGES TO FOLLOW . . .

Exhibit M page 64

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 65 of 229 Page ID #:974

VIMFY

*

PAGE 006

*

PUBLIC INFORMATION INMATE DATA
AS OF 08-25-2008

*

06-02-2020

*

17:26:33

REGNO..: 34183-060 NAME: FEARS, SHAWN L

RESP OF: LOM

HOME DETENTION ELIGIBILITY DATE: 02-25-2008

THE FOLLOWING SENTENCE DATA IS FOR THE INMATE'S PRIOR COMMITMENT. THE INMATE WAS SCHEDULED FOR RELEASE: 08-25-2008 VIA 3621E CMPL

------------------------PRIOR JUDGMENT/WARRANT NO: 010 ------------------------

COURT OF JURISDICTION...........: OHIO, NORTHERN DISTRICT DOCKET NUMBER...................: 1:91CR331 JUDGE...........................: BELL DATE SENTENCED/PROBATION IMPOSED: 04-28-1992 DATE COMMITTED..................: 07-22-1992 HOW COMMITTED...................: US DISTRICT COURT COMMITMENT PROBATION IMPOSED...............: NO

FELONY ASSESS MISDMNR ASSESS FINES

NON-COMMITTED.: $50.00

$00.00

$00.00

COSTS $00.00

RESTITUTION...: PROPERTY: NO SERVICES: NO

AMOUNT: $00.00

---------------------------PRIOR OBLIGATION NO: 010 ---------------------------

OFFENSE CODE....: 391

21:846 SEC 841-851 ATTEMPT

OFF/CHG: T21:846 & 841(A)(1), CONSPIRACY TO POSSESS WITH INTENT TO

DISTRIBUTE 15 KILOGRAMS OF COCAINE

SENTENCE PROCEDURE.............: 3559 SRA SENTENCE SENTENCE IMPOSED/TIME TO SERVE.: 240 MONTHS TERM OF SUPERVISION............: 10 YEARS CLASS OF OFFENSE...............: CLASS A FELONY DATE OF OFFENSE................: 10-24-1991

G0002

MORE PAGES TO FOLLOW . . .

Exhibit M page 65

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 66 of 229 Page ID #:975

VIMFY

*

PAGE 007 OF 007 *

PUBLIC INFORMATION INMATE DATA
AS OF 08-25-2008

*

06-02-2020

*

17:26:33

REGNO..: 34183-060 NAME: FEARS, SHAWN L

RESP OF: LOM PHONE..: 805-735-2771 FAX: 805-736-1292 ---------------------------PRIOR COMPUTATION NO: 010 --------------------------

COMPUTATION 010 WAS LAST UPDATED ON 08-20-2007 AT DSC AUTOMATICALLY COMPUTATION CERTIFIED ON 08-27-2007 BY DESIG/SENTENCE COMPUTATION CTR

THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN PRIOR COMPUTATION 010: 010 010

DATE COMPUTATION BEGAN..........: 04-28-1992 TOTAL TERM IN EFFECT............: 240 MONTHS TOTAL TERM IN EFFECT CONVERTED..: 20 YEARS EARLIEST DATE OF OFFENSE........: 10-24-1991

JAIL CREDIT.....................: FROM DATE 10-24-1991

THRU DATE 04-27-1992

TOTAL PRIOR CREDIT TIME.........: 187 TOTAL INOPERATIVE TIME..........: 0 TOTAL GCT EARNED AND PROJECTED..: 867 TOTAL GCT EARNED................: 780 STATUTORY RELEASE DATE PROJECTED: 06-08-2009 TWO THIRDS DATE.................: 02-21-2005 EXPIRATION FULL TERM DATE.......: 10-23-2011 TIME SERVED.....................: 16 YEARS PERCENTAGE OF FULL TERM SERVED..: 84.2 PERCENT OF STATUTORY TERM SERVED: 95.5

10 MONTHS

1 DAYS

ACTUAL SATISFACTION DATE........: 08-25-2008 ACTUAL SATISFACTION METHOD......: 3621E CMPL ACTUAL SATISFACTION FACILITY....: CCN ACTUAL SATISFACTION KEYED BY....: PJC

DAYS REMAINING..................: 1154 FINAL PUBLIC LAW DAYS...........: 0

G0000

TRANSACTION SUCCESSFULLY COMPLETED

Exhibit M page 66

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 67 of 229 Page ID #:976

VIMFY

*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

06-02-2020

PAGE 001 OF

17:46:44

FUNCTION: L-P SCOPE: REG EQ 34183-060

OUTPUT FORMAT: SAN

-------LIMITED TO SUBMISSIONS WHICH MATCH ALL LIMITATIONS KEYED BELOW----------

DT RCV: FROM __________ THRU __________ DT STS: FROM __________ THRU __________

DT STS: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT RDU

DT TDU: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT TRT

STS/REAS: ______ ______ ______ ______ ______ ______ ______ ______ ______ ______

SUBJECTS: ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____

EXTENDED: _ REMEDY LEVEL: _ _

RECEIPT: _ _ _ "OR" EXTENSION: _ _ _

RCV OFC : EQ ____

____

____

____

____

____

TRACK: DEPT: __________ __________ __________ __________ __________ __________

PERSON: ___

___

___

___

___

___

TYPE: ___

___

___

___

___

___

EVNT FACL: EQ ____

____

____

____

____

____

RCV FACL.: EQ ____

____

____

____

____

____

RCV UN/LC: EQ __________ __________ __________ __________ __________ __________

RCV QTR..: EQ __________ __________ __________ __________ __________ __________

ORIG FACL: EQ ____

____

____

____

____

____

ORG UN/LC: EQ __________ __________ __________ __________ __________ __________

ORIG QTR.: EQ __________ __________ __________ __________ __________ __________

G0002

MORE PAGES TO FOLLOW . . .

Exhibit N page 67

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 68 of 229 Page ID #:977

VIMFY PAGE 002 OF
REMEDY-ID 39858-F1 39858-R1 39858-R2 103000-F1 111836-F1 111836-R1 111836-R2 111836-A1 118685-F1 111836-A2 127517-F1 153379-F1 153379-R1 157858-F1 157859-F1 157863-F1

*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

*

SANITIZED FORMAT

*

06-02-2020 17:46:44

SUBJ1/SUBJ2 --------------------ABSTRACT------------------------

RCV-OFC

RCV-FACL

DATE-RCV

STATUS

STATUS-DATE

34AM/ ASH

COMPLAINT AGAINST STAFF

ASH

12-17-1992

CLD

01-04-1993

34AM/ MXR

COMPLAINT AGAINST STAFF

ASH

01-15-1993

REJ

01-19-1993

34AM/ MXR

COMPLAINT AGAINST STAFF

ASH

01-29-1993

CLG

02-11-1993

21AS/ MCK

APPEALING UDC / 01-26-1996, CODE 307

MCK

02-05-1996

CLD

02-07-1996

21AM/ RBK

UDC OF 05-28-96;CODE 307 398 (398 ADDED BY UDC)

RBK

06-12-1996

CLD

06-28-1996

21AM/ NER

UDC OF 05-28-96;CODE 307 398 (398 ADDED BY UDC)

RBK

07-16-1996

REJ

07-16-1996

21AM/ NER

UDC OF 05-28-96;CODE 307 398 (398 ADDED BY UDC)

RBK

07-25-1996

CLD

08-21-1996

21AM/ BOP

UDC OF 05-28-96;CODE 307 398 (398 ADDED BY UDC)

RBK

09-19-1996

REJ

09-19-1996

26IM/ RBK

DENIED EYEGLASSES - WIRE FRAMES.

RBK

09-25-1996

CLG

10-17-1996

21AM/ BOP

UDC OF 05-28-96;CODE 307 398 (398 ADDED BY UDC)

RBK

09-30-1996

CLG

11-08-1996

21AM/ RBK

UDC OF 1-29-1997; CODE 307 & 398 MOST LIKE 312

RBK

02-06-1997

CLG

02-12-1997

34AM/ RBK

STAFF SPOKE TO HIM IN AN UNPROFESSIONAL MANNER

RBK

02-23-1998

CLD

03-23-1998

34AM/ NER

STAFF SPOKE TO HIM IN AN UNPROFESSIONAL MANNER

RBK

04-03-1998

CLD

05-01-1998

34AM/ RBK

USE OF PROFANITY BY CUSTODY STAFF

RBK

04-27-1998

CLD

05-18-1998

34AM/ RBK

CLAIMS RUDE BEHAVIOR BY CUSTODY STAFF

RBK

04-27-1998

CLD

05-18-1998

20AM/ RBK

APPEAL DHO HEARING

RBK

04-27-1998

REJ

04-28-1998

G0002

MORE PAGES TO FOLLOW . . .

Exhibit N page 68

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 69 of 229 Page ID #:978

VIMFY PAGE 003 OF
REMEDY-ID 158548-R1 153379-A1 157858-R1 157859-R1 158548-A1 162574-F1 157859-A1 163156-F1 163157-F1 157858-A1 163528-F1 158548-A2 163156-R1 163528-R1 163157-R1 162574-R1

*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

*

SANITIZED FORMAT

*

06-02-2020 17:46:44

SUBJ1/SUBJ2 --------------------ABSTRACT------------------------

RCV-OFC

RCV-FACL

DATE-RCV

STATUS

STATUS-DATE

20DM/ NER

APPEALS DHO HEARING 04-16-98, CODE 312

RBK

05-04-1998

CLD

06-02-1998

34AM/ BOP

STAFF SPOKE TO HIM IN AN UNPROFESSIONAL MANNER

RBK

05-15-1998

CLD

07-08-1998

34AM/ NER

USE OF PROFANITY BY CUSTODY STAFF

RBK

05-26-1998

CLD

06-23-1998

34AM/ NER

CLAIMS RUDE BEHAVIOR BY CUSTODY STAFF

RBK

05-26-1998

CLD

06-23-1998

20DM/ BOP

APPEALS DHO HEARING 04-16-98, CODE 312

RBK

06-22-1998

REJ

06-22-1998

13HM/ RBK

RETURN TO ORIGINAL CELL ASSIGNMENT

RBK

07-01-1998

CLD

07-22-1998

34AM/ BOP

CLAIMS RUDE BEHAVIOR BY CUSTODY STAFF

RBK

07-06-1998

CLD

08-17-1998

25CM/ RBK

DRYER EXHAUSTS NEED OUTSIDE VENTILATION

RBK

07-08-1998

CLD

07-22-1998

13HM/ RBK

REQUESTS SMOKE FREE ENVIRONMENT

RBK

07-08-1998

CLD

07-22-1998

34AM/ BOP

USE OF PROFANITY BY CUSTODY STAFF

RBK

07-10-1998

CLD

08-05-1998

25CM/ RBK

UNSAFE, UNSANITARY CONDITIONS OF FOUR MAN CELL

RBK

07-13-1998

CLD

07-22-1998

20DM/ BOP

APPEALS DHO HEARING 04-16-98, CODE 312

RBK

07-13-1998

CLD

08-17-1998

25CM/ NER

DRYER EXHAUSTS NEED OUTSIDE VENTILATION

RBK

07-29-1998

CLD

08-25-1998

25CM/ NER

UNSAFE, UNSANITARY CONDITIONS OF FOUR MAN CELL

RBK

07-29-1998

CLD

08-25-1998

13HM/ NER

REQUESTS SMOKE FREE ENVIRONMENT

RBK

07-29-1998

CLD

08-25-1998

13HM/ NER

RETURN TO ORIGINAL CELL ASSIGNMENT

RBK

07-29-1998

CLD

08-25-1998

G0002

MORE PAGES TO FOLLOW . . .

Exhibit N page 69

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 70 of 229 Page ID #:979

VIMFY PAGE 004 OF
REMEDY-ID 165342-F1 165342-R1 163528-A1 163156-A1 163156-A2 162574-A1 163157-A1 163528-A2 165342-A1 163528-A3 192077-F1 192077-R1 200787-F1 201021-F1 200787-R1 224306-F1

*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

*

SANITIZED FORMAT

*

06-02-2020 17:46:44

SUBJ1/SUBJ2 --------------------ABSTRACT------------------------

RCV-OFC

RCV-FACL

DATE-RCV

STATUS

STATUS-DATE

13HM/ RBK

ASSIGNMENT TO NON-SMOKING CELL

RBK

08-07-1998

CLD

08-26-1998

13HM/ NER

ASSIGNMENT TO NON-SMOKING CELL

RBK

09-11-1998

CLD

10-06-1998

25CM/ BOP

UNSAFE, UNSANITARY CONDITIONS OF FOUR MAN CELL

RBK

09-14-1998

REJ

09-14-1998

25CM/ BOP

DRYER EXHAUSTS NEED OUTSIDE VENTILATION

RBK

09-14-1998

REJ

09-14-1998

25CM/ BOP

DRYER EXHAUSTS NEED OUTSIDE VENTILATION

RBK

09-14-1998

CLD

10-14-1998

13HM/ BOP

RETURN TO ORIGINAL CELL ASSIGNMENT

RBK

09-22-1998

CLO

10-27-1998

13HM/ BOP

REQUESTS SMOKE FREE ENVIRONMENT

RBK

09-22-1998

CLD

10-26-1998

25CM/ BOP

UNSAFE, UNSANITARY CONDITIONS OF FOUR MAN CELL

RBK

10-01-1998

REJ

10-01-1998

13HM/25CM BOP

ASSIGNMENT TO NON-SMOKING CELL

RBK

10-24-1998

CLD

12-08-1998

25CM/ BOP

FOUR MAN CELLS ARE UNCONSTITUTIONAL

RBK

10-26-1998

CLD

12-10-1998

34AM/ RBK

UNPROFESSIONAL CONDUCT/CONDESCENDING REMARK

RBK

07-29-1999

CLO

08-12-1999

34AM/ NER

STAFF COMPLAINT

RBK

08-19-1999

CLD

09-15-1999

15BM/ RBK

APPEALS DENIAL OF NOI VIDEO TAPE.

RBK

12-01-1999

CLD

12-20-1999

34ZM/ RBK

OFFICER SWITCHED MAIL BETWEEN ENVELOPES

RBK

12-03-1999

CLD

01-03-2000

15BM/ NER

APPEALS DENIAL OF NOI VIDEO TAPE.

RBK

01-10-2000

CLD

02-07-2000

34CM/ ELK

CLAIMS STAFF DISCRIMINATING

ELK

10-18-2000

REJ

10-18-2000

G0002

MORE PAGES TO FOLLOW . . .

Exhibit N page 70

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 71 of 229 Page ID #:980

VIMFY PAGE 005 OF
REMEDY-ID 227144-F1 227144-R1 227144-R2 227144-R3 231574-F1 231632-R1 231632-R2 231971-F1 231574-R1 227144-A1 236106-R1 227144-A2 231632-A1 231971-R1 235620-F1 235625-F1

*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

*

SANITIZED FORMAT

*

06-02-2020 17:46:44

SUBJ1/SUBJ2 --------------------ABSTRACT------------------------

RCV-OFC

RCV-FACL

DATE-RCV

STATUS

STATUS-DATE

34CM/ ELK

CLAIMS STAFF WERE DISCRIMINATING DURING INVESTIGAT.

ELK

11-24-2000

CLD

12-14-2000

34CM/ NER

CLAIMS STAFF WERE DISCRIMINATING DURING INVESTIGAT.

ELK

12-26-2000

REJ

12-27-2000

34CM/ NER

CLAIMS STAFF WERE DISCRIMINATING DURING INVESTIGAT.

ELK

01-10-2001

VOD

01-16-2001

34CM/ NER

CLAIMS STAFF WERE DISCRIMINATING DURING INVESTIGAT.

ELK

01-11-2001

CLD

02-09-2001

33HM/ ELK

COMPLAINS ABOUT THE PROCESSING OF ADMINISTRATIVE REM

ELK

01-25-2001

CLD

02-12-2001

20DS/ NER

APPEALS DHO HEARING

ELK

01-25-2001

VOD

01-26-2001

20DS/ NER

APPEALS 01-09-01 DHO HEARING, CODE 224

ELK

01-25-2001

CLD

02-22-2001

20DM/22AM ELK

REQUESTS TO BE RELEASED FROM SHU; APPEAL DHO DEC.

ELK

01-31-2001

CLO

03-09-2001

33HM/ NER

COMPLAINS ABOUT THE PROCESSING OF ADMINISTRATIVE REM

ELK

02-22-2001

CLD

03-22-2001

34CM/ BOP

CLAIMS STAFF WERE DISCRIMINATING DURING INVESTIGAT.

ELK

02-27-2001

REJ

02-27-2001

34ZS/ NER

STAFF COMPLAINT

ELK

03-09-2001

REJ

03-28-2001

34CM/ BOP

CLAIMS STAFF WERE DISCRIMINATING DURING INVESTIGAT.

ELK

03-15-2001

CLD

04-27-2001

20DS/ BOP

APPEALS 01-09-01 DHO HEARING, CODE 224

ELK

03-19-2001

CLD

05-04-2001

22AS/34ZS NER

REQUESTS TO BE RELEASED FROM SHU; APPEAL DHO DEC.

ELK

03-21-2001

CLD

04-18-2001

33ES/ ELK

COMPLAINS HE WAS NOT PROVIDED LEGAL CALL

ELK

03-22-2001

CLD

04-05-2001

27BS/ ELK

CLAIMS: DENIED DENTAL CARE

ELK

03-22-2001

CLO

03-28-2001

G0002

MORE PAGES TO FOLLOW . . .

Exhibit N page 71

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 72 of 229 Page ID #:981

VIMFY PAGE 006 OF
REMEDY-ID 235626-F1 235628-F1 235629-F1 235630-F1 236300-F1 236300-R1 235620-R1 239327-F1 231971-A1 250359-F1 250359-F2 252999-F1 250359-R1 252999-R1 250359-A1 252999-A1

*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

*

SANITIZED FORMAT

*

06-02-2020 17:46:44

SUBJ1/SUBJ2 --------------------ABSTRACT------------------------

RCV-OFC

RCV-FACL

DATE-RCV

STATUS

STATUS-DATE

26BS/ ELK

MEDICAL CARE PERSONNEL AND DELAYS

ELK

03-22-2001

CLO

03-28-2001

21AS/ ELK

APPEALS UDC HEARING

ELK

03-22-2001

CLO

03-29-2001

34AS/ ELK

STAFF CONDUCT

ELK

03-22-2001

CLO

03-28-2001

34AS/ ELK

STAFF CONDUCT

ELK

03-22-2001

CLO

03-28-2001

34AS/ ELK

STAFF CONDUCT

ELK

03-30-2001

CLD

04-06-2001

34AS/ NER

STAFF CONDUCT

OTV

05-09-2001

CLD

06-06-2001

33ES/ NER

COMPLAINS HE WAS NOT PROVIDED LEGAL CALL

OTV

05-09-2001

CLD

06-06-2001

34ZM/ OTV

COMPLAINT AGAINST STAFF AT ELKTON

OTV

05-10-2001

CLD

06-12-2001

22AS/34ZS BOP

REQUESTS TO BE RELEASED FROM SHU; APPEAL DHO DEC.

OTV

05-14-2001

CLD

07-10-2001

34ZM/ OTV

ALLEGES STAFF WAS AGGRESSIVE

OTV

10-01-2001

REJ

10-01-2001

34ZM/ OTV

ALLEGES STAFF WAS AGGRESSIVE

OTV

10-09-2001

CLO

10-29-2001

34ZM/ OTV

STAFF WOULD NOT ADDRESS HIS ISSUE RIGHT THEN

OTV

11-06-2001

CLD

11-16-2001

34ZM/ NER

ALLEGES STAFF WAS AGGRESSIVE

OTV

11-15-2001

CLD

12-14-2001

34ZM/ NER

STAFF WOULD NOT ADDRESS HIS ISSUE RIGHT THEN

OTV

11-26-2001

CLD

12-19-2001

34ZM/ BOP

ALLEGES STAFF WAS AGGRESSIVE

OTV

01-15-2002

CLO

01-17-2002

34ZM/ BOP

STAFF WOULD NOT ADDRESS HIS ISSUE RIGHT THEN

OTV

02-21-2002

CLD

03-21-2002

G0002

MORE PAGES TO FOLLOW . . .

Exhibit N page 72

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 73 of 229 Page ID #:982

VIMFY PAGE 007 OF
REMEDY-ID 304927-F1 304927-R1 350150-F1 350150-F2 350150-R1 350150-A1 408108-R1 414342-F1 408108-A1 417873-F1 417873-R1 414342-R1 414342-A1 443684-F1 443684-R1 855108-F1

*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

*

SANITIZED FORMAT

*

06-02-2020 17:46:44

SUBJ1/SUBJ2 --------------------ABSTRACT------------------------

RCV-OFC

RCV-FACL

DATE-RCV

STATUS

STATUS-DATE

15BM/ LEX

CHAPL.DISCRIM. AGAINST NOI/SVCS PROPLY GIVEN SETUP

LEX

07-17-2003

CLD

08-06-2003

15BM/ MXR

CHAPL.DISCRIM. AGAINST NOI/SVCS PROPLY GIVEN SETUP

LEX

09-16-2003

CLD

10-03-2003

15BM/ ASH

I/M WANTS RELIGIOUS MATERIALS PURCHASED

ASH

09-02-2004

REJ

09-02-2004

15BM/ ASH

I/M WANTS RELIGIOUS MATERIALS PURCHASED

ASH

09-08-2004

CLD

09-21-2004

15BM/ MXR

I/M WANTS RELIGIOUS MATERIALS PURCHASED

ASH

10-04-2004

CLD

12-17-2004

15BM/ BOP

I/M WANTS RELIGIOUS MATERIALS PURCHASED

ASH

01-11-2005

CLO

03-10-2005

20DS/ SER

INMATE APPEALS DHO SANCTIONS

ATL

03-29-2006

CLO

04-24-2006

25DC/ ATL

WANTS HIS PROPERTY LOCATED

ATL

05-24-2006

CLD

07-24-2006

20DS/ BOP

INMATE APPEALS DHO SANCTIONS

ATL

05-24-2006

CLO

07-26-2006

20DM/ ATL

APPEAL DHO ACTION

ATL

06-26-2006

REJ

06-26-2006

20DM/ SER

APPEAL DHO ACTION

ATL

07-25-2006

REJ

07-27-2006

25DC/ SER

WANTS HIS PROPERTY LOCATED

ATL

08-14-2006

CLD

09-01-2006

25DC/ BOP

WANTS HIS PROPERTY LOCATED

OKL

09-25-2006

REJ

10-04-2006

10ZM/34ZM YAM

REQUEST TRF TO RDAP, COMPLAINT AGAINST STAFF.

YAM

02-26-2007

CLO

04-10-2007

10ZM/34ZM SER

REQUEST TRF TO RDAP, COMPLAINT AGAINST STAFF.

MNA

04-20-2007

REJ

04-20-2007

24EM/ JES

CLAIMS UNSANITARY CONDITIONS IN DINING HALL

JES

03-14-2016

CLO

03-25-2016

G0002

MORE PAGES TO FOLLOW . . .

Exhibit N page 73

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 74 of 229 Page ID #:983

VIMFY

*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

PAGE 008 OF 008 *

SANITIZED FORMAT

*

06-02-2020 17:46:44

REMEDY-ID

SUBJ1/SUBJ2 --------------------ABSTRACT------------------------

RCV-OFC

RCV-FACL

DATE-RCV

STATUS

STATUS-DATE

855108-R1

24EM/ SER

CLAIMS UNSANITARY CONDITIONS IN DINING HALL

JES

04-05-2016

REJ

04-06-2016

855108-R2

24EM/ SER

CLAIMS UNSANITARY CONDITIONS IN DINING HALL

JES

04-19-2016

REJ

04-20-2016

855108-R3

24EM/ SER

ALLEGES UNSANITARY CONDITIONS IN DINING HALL

JES

05-10-2016

CLO

05-27-2016

855108-A1

24EM/ BOP

CLAIMS UNSANITARY CONDITIONS IN DINING HALL

JES

06-23-2016

REJ

07-19-2016

855108-A2

24EM/25CM BOP

CLAIMS UNSANITARY CONDITIONS IN DINING HALL

JES

09-12-2016

CLD

02-03-2017

G0000

101 REMEDY SUBMISSION(S) SELECTED TRANSACTION SUCCESSFULLY COMPLETED

Exhibit N page 74

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 75 of 229 Page ID #:984

VIMFY PAGE 001

*

INMATE DISCIPLINE DATA

*

CHRONOLOGICAL DISCIPLINARY RECORD

*

06-02-2020

*

17:50:27

REGISTER NO: 34183-060 NAME..: FEARS, SHAWN L

FUNCTION...: PRT

FORMAT: CHRONO LIMIT TO ___ MOS PRIOR TO 06-02-2020

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 1602030 - SANCTIONED INCIDENT DATE/TIME: 05-23-2007 1300

UDC HEARING DATE/TIME: 05-30-2007 1525

FACL/UDC/CHAIRPERSON.: MNA/APACHE A/B. PRICE

REPORT REMARKS.......: INMATE ADVISED OF HIS RIGHT TO APPEAL UDC DECISION.

330 BEING UNSANITARY OR UNTIDY - FREQ: 1

LP COMM / 30 DAYS / CS

COMP: LAW: BUSINESS OFFICE NOTIFIED.

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 1435372 - SANCTIONED INCIDENT DATE/TIME: 02-17-2006 1000

DHO HEARING DATE/TIME: 03-02-2006 1020

FACL/CHAIRPERSON.....: ATL/HISLOP S

REPORT REMARKS.......: I/M ADMITTED HAVING MONEY IN HIS POSSESSION

303 POSSESSING UNAUTHORIZED MONEY - FREQ: 1

CONFISCATE / CS

COMP: LAW: CONFISCATE MONEY $20 BILL

DIS GCT / 13 DAYS / CS

COMP:010 LAW:S

DS

/ 15 DAYS / CS

COMP: LAW:

LP COMM / 60 DAYS / CS

COMP: LAW:

LP VISIT / 60 DAYS / CS

COMP: LAW:

TRANSFER / CS

COMP: LAW:

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 1435371 - SANCTIONED INCIDENT DATE/TIME: 02-17-2006 0920

DHO HEARING DATE/TIME: 03-02-2006 1010

FACL/CHAIRPERSON.....: ATL/HISLOP S

APPEAL CASE NUMBER(S): 408108

REPORT REMARKS.......: I/M ADMITTED CODE 327, DENIED ATTEMPTED ESCAPE

FOUND GUILTY OF BOTH BASED ON EVIDENCE PROVIDED

200A ESCAPE-RETURN WITHIN 4 HOURS - FREQ: 1

DIS GCT / 27 DAYS / CS

COMP:010 LAW:S

DS

/ 30 DAYS / CS

COMP: LAW:

LP COMM / 60 DAYS / CS

COMP: LAW:

LP PHONE / 60 DAYS / CS

COMP: LAW:

LP VISIT / 60 DAYS / CS

COMP: LAW:

TRANSFER / CS

COMP: LAW:

G0002

MORE PAGES TO FOLLOW . . .

Exhibit O page 75

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 76 of 229 Page ID #:985

VIMFY PAGE 002

*

INMATE DISCIPLINE DATA

*

CHRONOLOGICAL DISCIPLINARY RECORD

*

06-02-2020

*

17:50:27

REGISTER NO: 34183-060 NAME..: FEARS, SHAWN L

FUNCTION...: PRT

FORMAT: CHRONO LIMIT TO ___ MOS PRIOR TO 06-02-2020

DHO HEARING DATE/TIME: 03-02-2006 1010 REPORT 1435371 CONTINUED

327 CONTACTING PUBLIC WITHOUT AUTH - FREQ: 1

DS

/ 15 DAYS / CS

COMP: LAW:

LP PHONE / 30 DAYS / CS

COMP: LAW:

LP VISIT / 30 DAYS / CS

COMP: LAW:

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 816618 - SANCTIONED INCIDENT DATE/TIME: 07-21-2000 2115

DHO HEARING DATE/TIME: 01-09-2001 1358

FACL/CHAIRPERSON.....: ELK/DAVIS

APPEAL CASE NUMBER(S): 231632

REPORT REMARKS.......: INMATE ASSAULTED INMATE SILVA-ROSAS, #73748-198

224 ASSAULTING W/O SERIOUS INJURY - FREQ: 1 ATI: IN1 RFP: D

DIS GCT / 27 DAYS / CS

COMP:010 LAW:S

DS

/ 30 DAYS / CS

COMP: LAW:

TRANSFER / CS

COMP: LAW:

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 575305 - SANCTIONED INCIDENT DATE/TIME: 04-04-1998 0830

DHO HEARING DATE/TIME: 04-16-1998 1345

FACL/CHAIRPERSON.....: RBK/RYAN D

APPEAL CASE NUMBER(S): 158548

REPORT REMARKS.......: CODES 224 AND 307 WERE EXPUNGED

312 BEING INSOLENT TO STAFF MEMBER - FREQ: 1

DIS GCT / 10 DAYS / CS

COMP:010 LAW:S

DS

/ 15 DAYS / CS

COMP: LAW:

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 481234 - SANCTIONED INCIDENT DATE/TIME: 03-22-1997 1619

UDC HEARING DATE/TIME: 03-24-1997 0845

FACL/UDC/CHAIRPERSON.: RBK/DEL/RADLOFF WM

REPORT REMARKS.......: INMATE FOUND GUILTY AS CHARGED

406 USING PHONE OR MAIL W/O AUTH - FREQ: 2

LOSE PRIV / 60 DAYS / CS / SUSPENDED 30 DAYS

COMP: LAW: SUSP. 30 DAYS PENDING CLEAR CONDUCT FOR 180 DA.

(3-34-1997 THROUGH 4-24-1997

G0002

MORE PAGES TO FOLLOW . . .

Exhibit O page 76

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 77 of 229 Page ID #:986

VIMFY PAGE 003

*

INMATE DISCIPLINE DATA

*

CHRONOLOGICAL DISCIPLINARY RECORD

*

06-02-2020

*

17:50:27

REGISTER NO: 34183-060 NAME..: FEARS, SHAWN L

FUNCTION...: PRT

FORMAT: CHRONO LIMIT TO ___ MOS PRIOR TO 06-02-2020

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 442414 - SANCTIONED INCIDENT DATE/TIME: 10-15-1996 2240

UDC HEARING DATE/TIME: 10-18-1996 0815

FACL/UDC/CHAIRPERSON.: RBK/DEL/T.YANDO

REPORT REMARKS.......: INMATE ADMITTED TO CHARGE

406 USING PHONE OR MAIL W/O AUTH - FREQ: 1

LOSE PRIV / 14 DAYS / CS

COMP: LAW: PHONE RESTRICTION FROM 10-18-96 THRU 10-31-96

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 407088 - SANCTIONED INCIDENT DATE/TIME: 05-22-1996 0735

UDC HEARING DATE/TIME: 06-04-1996 1240

FACL/UDC/CHAIRPERSON.: RBK/DEL/LUCAS

REPORT REMARKS.......: ADMITTED TO HITTING THE METAL DETECTOR WITH ROLLED UP

WEIGHT BELT. (IR WAS REMANDED BACK TO UDC FROM DHO)

208 INTERFERING WITH SECRY DEVICES - FREQ: 1

LOSE PRIV / 30 DAYS / CS

COMP: LAW: 30 DAYS LOSS OF COMMISSARY, CONSECUTIVE TO IR#

407085, EFFECTIVE 8/27/96 TO 9/26/96

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 379736 - SANCTIONED INCIDENT DATE/TIME: 01-26-1996 1915

UDC HEARING DATE/TIME: 01-30-1996 1400

FACL/UDC/CHAIRPERSON.: MCK/2/STAUFFER

APPEAL CASE NUMBER(S): 103000

REPORT REMARKS.......: INMATE ADVISED OF HIS RIGHT TO APPEAL.

307 REFUSING TO OBEY AN ORDER - FREQ: 1

LOSE PRIV / 30 DAYS / CS

COMP: LAW: 30 DAYS COMMISSARY RESTRICTION TO END ON 02-28-96.

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 251528 - SANCTIONED INCIDENT DATE/TIME: 08-24-1994 1400

DHO HEARING DATE/TIME: 09-07-1994 1300

FACL/CHAIRPERSON.....: ALM/ZIMANY R

REPORT REMARKS.......: INMATE DENIED CHARGE

312 BEING INSOLENT TO STAFF MEMBER - FREQ: 1

DIS GCT / 7 DAYS / CS

COMP: LAW:

DS

/ 10 DAYS / CS / SUSPENDED 180 DAYS

COMP: LAW: PENDING GOOD CONDUCT

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 151099 - SANCTIONED INCIDENT DATE/TIME: 05-25-1993 1150

DHO HEARING DATE/TIME: 06-10-1993 1500

FACL/CHAIRPERSON.....: SCH/BRUSCA M

REPORT REMARKS.......: DHO, CHANGES CODES 199 & 104 TO 201A, DUE TO INMATE

FEARS HAVING SAME INCIDENT REPORT FOR SAME ACTION.

G0002

MORE PAGES TO FOLLOW . . .

Exhibit O page 77

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 78 of 229 Page ID #:987

VIMFY

*

PAGE 004 OF 004 *

INMATE DISCIPLINE DATA CHRONOLOGICAL DISCIPLINARY RECORD

*

06-02-2020

*

17:50:27

REGISTER NO: 34183-060 NAME..: FEARS, SHAWN L

FUNCTION...: PRT

FORMAT: CHRONO LIMIT TO ___ MOS PRIOR TO 06-02-2020

DHO HEARING DATE/TIME: 06-10-1993 1500 REPORT 151099 CONTINUED

201A FIGHTING WITH ANOTHER PERSON - FREQ: 1

DS

/ 30 DAYS / CS

COMP: LAW: RELEASE FROM DS ON 07-09-1993. INMATE USED WEIGHT

BELT TO KEEP INMATE LYNN FROM STABBING HIM.

LOSE PRIV / 60 DAYS / CS / SUSPENDED 90 DAYS

COMP: LAW: LOSS OF COMMISSARY PRIVILEGE SUSPENDED TO ENTICE

BETTER BEHAVIOR.

-------------------------------------------------------------------------------

REPORT NUMBER/STATUS.: 132456 - SANCTIONED INCIDENT DATE/TIME: 02-17-1993 1415

UDC HEARING DATE/TIME: 02-22-1993 1430

FACL/UDC/CHAIRPERSON.: ASH/H/BYRD B

REPORT REMARKS.......: FOUND GUILTY. SANCTIONED 10 HOURS EXTRA DUTY AND 7 DAYS

QUARTERS RESTRICTION (SUSPENDED FOR 90 DAYS).

316 BEING IN UNAUTHORIZED AREA - FREQ: 1

EXTRA DUTY / 10 HOURS / CS

COMP: LAW: TO BE COMPLETED BY MARCH 8, 1993.

RESTR QTRS / 7 DAYS / CS / SUSPENDED 90 DAYS

COMP: LAW: PENDING 90 DAYS CLEAR CONDUCT.

G0005

TRANSACTION SUCCESSFULLY COMPLETED - CONTINUE PROCESSING IF DESIRED

Exhibit O page 78

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 79 of 229 Page ID #:988

BP-A0396

Certificate of Record CDFRM

JUNE 10

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

I Melissa Arnold

, hereby certify and attest that I am the

CASE MANAGEMENT COORDINATOR and as such that I am the official custodian of the records of this Institution whose official name and address is:

Federal Correctional Complex Lompoc 3901 Klein Blvd Lompoc, CA 93436

and that the following and attached records are true and correct copies of records of said institution pertaining to:

Name : ANDRE BROWN and consisting of:

(1) Photograph (4) Other:

Register No. _s_4_4_6_o_-_o_9_7_ _ _ _ _ _ __

(2) Fingerprint card

(3) Commitment

IN WITNESS WHEREOF, I have hereunto set my hand at

this -26-----------

20 -20- -

STATE OF -CA- - - - - - - - - -
COUNTY OF Santa Barbara
Subscribed and sworn to before me this

Custodian of Records
day of -------------' 20

Record Copy - Requester; Copy - Central File

Signature of Officer Authorized to Administer Oaths (18 U.S.C. 4004)

PDF

Prescribed by P5800

Replaces BP-396.058 of MAY 94

Exhibit P page 79

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 80 of 229 Page ID #:989

1-

(,

Case 2:13-cr-00822-0b.. , Document 1686 Filed 01/28/19 ..- l:tge 1 of 6 Page ID #:12571

United States District Court Central District of California

UNITED STATES OF AMERICA vs.

Docket No.

CR 13-00822-0DW-2

Defendant Andre Brown
Dre akas: also known as Gay Dre also known as King Dre

Social Security No. ..i.. JL ..!.. _1_
(Last 4 digits)

.Jlil>G:\IE!\T :\:\D PROB:\TIOi\/CO:\li\llT!\JE\"T OIWER

MONTH DAY YEAR In the presence ofthe attorney for the government, the defendant appeared in person on this date. Jan. 28 2019

I _______________ COUNSEL

c_a_r_lo...;s..;;;L;;..J;;..;.u_a_re_z~,.:..Pa_n_e_l_ _ _ _ _ _ _ _ _ _ _ _ _ __

PLEA

(Name of Counsel)
I D (!I GUILTY, and the court being satisfied that there is a factual basis for the plea.

NOLO

D NOT

CONTENDERE

GUILTY

FINDING There being a finding/verdict of GUILTY, defendant has been convicted as charged ofthe offense(s) of:

Count ls: ; 21 :846: Conspiracy to Manufacture, Distribute, and possess with Intent to Distribute Phencyclidine (PCP), and .

Illegally Possess a Listed Chemical: Count 7s: 21:84l(a)(l),(b)(l)(B)(iv): Distribution and Possession with Intent to

- - - - - Distribute PCP

.

JUDGMENT The Court asked whether there was any reason why judgment should not be pronounced. Because no sufficient cause to the

AND PROB/ contrary was shown, or appeared to the Court, the Court adjudged the defendant guilty as charged and convicted and ordered that:

COMM Pursuant to the Sentencing Refonn Act of 1984, it is the judgment of the Court that the defendant is hereby committed to the

_O=RD~E=R......... custody ofthe Bureau of Prisons to be imprisoned for a tenn of:

150 months. This term consists of 150 months on each of Counts 1 and 7 of the First Superseding Indictment, to be served concurrently.

It is ordered that the defendant shall pay to the United States a special assessment of $200, which is due
immediately. Any unpaid balance shall be due during the period ofimprisonment, at the rate ofnot less than $25 per quarter, and pursuant to the Bureau ofPrisons' Inmate Financial Responsibility Progr~.

Pursuant to Guideline§ 5El.2(a), all fines are waived as the Court finds that the defendant has established an inability to pay a fine.

Upon release from imprisonment, the defendant shall be placed on supervised release for a term of 5 years. This term consists of 5 years on each of Counts 1 and 7 of the First Superseding Indictment, all such terms to run concurrently under the following terms and conditions:

I. The defendant shall comply with the rules and regulations ofthe United States Probation & Pretrial Services Office and General Order 18-10.

. CR-104 (wpd 10/18)

JUDGMENT & PROBATION/COMMITMENT ORDER

Page I

Exhibit P page 80

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 81 of 229 Page ID #:990
r·
Case 2:13-cr-00822-oe-/ Document 1686 Filed 01/28/19 , age 2 of 6 Page ID #:12572

USA vs. Andre Brown

Docket No.: CR 13-00822-0DW-2

2. The defendant $hall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days ofrelease from custody and at least two periodic drug tests thereafter, not to exceed eight tests per month, as directed by the Probation· Officer.

3. During the period of community supervision, the defendant shall pay the special assessment in accordance with this judgment's orders pertaining to such payment.
4. When not employed or excused by the Probation Officer for schooling, training, or other acceptable reasons, the defendant shall perform 20 hours of community service per week as directed by the Probation & Pretrial Services Office.
s. The defendant shall not obtain or possess any driver's license, Social Security number, birth
· certificate, passport or any other form ofidentification in any name, other than the defendant's true legal name, nor shall the defendant use, any name other than his true legal name without the prior written approval of the Probation Officer.
6. The defendant shall cooperate in the collection of a DNA sample from himself.
7. The defendant shall not associate with anyone known to him to be a member of the Grape Street Crips Gang and others known to him to be participants in the Grape Street Crips Gang's criminal activities, with the exception ofhis family members. He may not wear, display, use or possess any gang insignias, emblems, buttons, caps, or any other clothing that defendant knows evidence affiliation with ·the Grape Street Crips Gang, and may not display any signs or gestures that defendant knows evidence affiliation with the Grape Street Crips Gang.
8. As directed by the Probation Officer, the defendant shall not be present in any area known to him to be a location where members of the Grape Street Crips Gang meet and/or assemble.

9. The defendant shall submit his person, property, house, residence, vehicle, papers, computers [as
defined in 18 U.s.c~ § 1030(e)(l)], cell phones, other electronic communications or data storage
devices or media, office, or other areas under the defendant's control, to a search conducted by a
United States Probation Officer or law enforcement officer. Failure to submit to a search may be
grounds for revocation. The defendant shall warn any other occupants that the premises may be
subject to searches pursuant to this condition. Any search pursuant to this condition will be

CR-104 (wpd 10/18)

JUDGMENT & PROBATION/COMMITMENT ORDER

Page2

Exhibit P page 81

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 82 of 229 Page ID #:991

Case 2:13-cr-00822-d:: Document 1686 Filed 01/28/19 ( ..ge 3 of 6 Page ID #:12573

USA vs. Andre Brown

Docket No.: CR 13-00822-0DW-2

conducted at a reasonable time and in a reasonable manner upon reasonable suspicion that the defendant has violated a condition ofhis supervision. More over, there must be reasonable suspicion to search the areas In question.

The Court recommend defendant to be house~ in a Southern California facility.

Pursuant to 18 U.S.C. § 3553(a}, the Court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The Court, in determining the particular sentence to be imposed, shall consider --

1. The nature and circumstances of the offense and the history and characteristics of the defendant;

2. The need for the sentence imposed --

a. To reflect the seriousness of the offense; to promote respect for the law, and to provide just

punishment for the offense;

·

b. To afford adequate deterrence to criminal conduct;

c. To protect the public from further crimes of the defendant; and

d. To provide the defendant with needed correctional treatment in the most effective manner.

3. The kinds of sen~ences available;

4. The guideline sentencing range;

5. The need to avoid unwarranted sentence disparities ampng defendants with similar records who have been

found guilty of similar conduct.

In addition to the special conditions ofsupervision imposed above, it is hereby ordered that the Standard Conditions of Probation and Supervised Release within this judgment be imposed. The Court may change the conditions ofsupervision, reduce or extend the period of supervision, and at any time during the supervision period or within the maximum period permitted by Jaw, may issue a warrant and revoke supervision for a violation occurring during the supervision period.

January 28, 2019 Date

ict dge

It is ordered that the Clerk deliver a copy of this Judgment and Probation/ mmitment Order to the U.S. Marshal or other qualified officer.

Clerk, U.S. District Court

January 28, 2019 Filed Date

By

-

-

-

- - - - - - Sheila English /s/
-0eputy Clerk

-

-

-

-

-

-

-

-

-

-

CR-104 (wpd I0/18)

JUDGMENT & PROBATION/COMMITMENT ORDER

Page3

Exhibit P page 82

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 83 of 229 Page ID #:992

fr--

(-

Case 2:13-cr-00822-0"' ii Document 1686 Filed 01/28/19 ·, dge 4 of 6 Page ID #:12574

USA vs. Andre Brown

Docket No.: CR 13-00822-0DW-2

The defendant must comply with the standard conditions that have been adopted by this court (set forth below).

STANDARD CONDITIONS OF PROBATION AND SUPERVISED RELEASE

While the defendant is on probation or supervised release pursuant to this judgment:

1. The defendant must not commit another federal, state, or local crime;
2. he defendant must report to the probation office in the federal judicial district of residence within 72 hours of imposition of a sentence of probation or release from imprisonment, unless otherwise directed by the probation officer;
3. The defendant must report to the probation office as instructed by the court or probation officer;
4. The defendant must not knowingly leave the judicial district without first receiving the permission ofthe court or probation officer;
5. The defendant must answer truthfully the inquiries ofthe probation officer, unless legitimately asserting his or her Fifth Amendment right against self-incrimination as to new criminal conduct;
· 6. The defendant must reside at a location approved by the probation officer and must notify the probation officer at least 10 days before any anticipated change or within 72 hours ofan unanticipated change in residence or persons living in defendant's residence;
7. The defendant must permit the probation officer to contact him or her at any time at home or elsewhere and must permit confiscation ofany contraband prohibited by law or the terms of supervision and observed in plain view by the probation officer;
8. The defendant must work at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons and must notify the probation officer at least ten days before any change in employment or within 72 hours of an unanticipated change;

9. The defendant must not knowingly associate with any persons engaged in criminal activity and must not knowingly associate with any person convicted of a felony unless granted permission to do so by the probation officer. This condition will not apply to intimate family members, unless the court has completed an individualized review and has determined that the restriction is necessary for protection of the community or rehabilitation;
10. The defendant must refrain from excessive use ofalcohol and must not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substances, except as prescribed by a physician;
11. The defendant must notify the probation officer within 72 hours of being arrested or questioned by a law enforcement officer;
12. For felony cases, the defendant must not possess a firearm, ammunition, destructive device, or any other dangerous weapon;
13. The defendant must not act or enter into any agreement with a law enforcement agency to act as an informant or source without the pem1ission of the court;
14. As directed by the probation officer, the defendant must notify specific persons and organizations of specific risks posed by the defendant to those persons and organizations and must permit the probation officer to confirm the defendant's compliance with such requirement and to make such notifications;
15. The defendant must follow the instructions of the probation officer to implement the orders ofthe court, afford adequate deterrence from criminal conduct, protect the public from further crimes of the defendant; and provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

CR-I04 (wpd I0/18)

JUDGMENT & PROBATION/COMMITMENT ORDER

Page4

Exhibit P page 83

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 84 of 229 Page ID #:993

--

(

D Case 2:13-cr-00822-0L . Document 1686 Filed 01/28/19 .- ~ge 5 of 6 Page ID #:12575 The defendant m~st also comply with the following.special conditions (set forth below).

STATUTORY PROVISIONS PERTAINING TO PAYMENT AND COLLECTION OF FINANCIAL SANCTIONS

The defendant must pay interest on a fine or restitution ofmore than $2,500, unless the court waives interest or unless the fine or restitution is paid in full before the fifteenth (15th) day after the date ofthe judgment under 18 U.S.C. § 3612(f)(l). Payments may be subject to penalties for default and delinquency under 18 U.S.C. §3612(g). Interest and penalties pertaining to restitution, however, are not applicable for offenses completed before April 24, l 996~

Ifall or any portion ofa fine or restitution ordered remains unpaid after the termination ofsupervision, the defendant must pay the balance as directed by the United States Attorney's Office. 18 U.S.C. § 3613.

The defendant must notify the United States Attorney within thirty (30) days ofany change in the defendant's mailing address. or residence address until all fines, restitution, costs, and special assessments are paid in full. 18 U.S.C. § 3612(b)(l)(F).

The defendant must notify the Court (through the Probation Office) and the United States Attorney ofany material change in the defendant's economic circumstances that might affect the defendant's ability to pay a fine or restitution, as required by 18 U.S.C. § 3664(k). The Court may also accept such notification from the government or the victim, and may, on its own motion or that ofa party or the victim, adjust the m~er ofpayment ofa fine or restitution under 18 U.S.C. § 3664(k). See also 18 U.S.C. § 3572(d)(3) and for probation 18 U.S.C. § 3563(a)(7).

Payments will be applied in the following order:

1. Special assessments under 18 U.S.C. § 3013;

2. Restitution, in this sequence (under 18 U.S.C. § 3664(i), all non-federal victims must be paid before the United

States is paid):

Non-federal victims (individual and corporate),

Providers ofcompensation to non-federal victims,

The United States as victim;

3. Fine;

.

4. Community restitution, under 18 U.S.C. § 3663(c); and

5. Other penalties and costs.

CONDITIONS OF PROBATION AND SUPERVISED RELEASE PERTAINING TO FINANCIAL SANCTIONS

As directed by the Probation Officer, the defendant must provide to the Probation Officer: (1) a signed release authorizing credit report inquiries; (2) federal and state income tax returns or a signed release authorizing their disclosure and (3) an accurate financial statement, with supporting documentation as to all assets, income and expenses ofthe defendant. In addition, the defendant must not apply for any loan or open any line of credit without prior approval of the Probation Officer.

The defendant must maintain one personal checking account. All ofdefendant's income, "monetary gains," or other pecuniary proceeds must be deposited into this account, which must be used for payment of all personal expenses. Records of all other bank accounts, including any business accounts, must be disclosed to the Probation Officer upon request.

The defendant.must not transfer, sell, give away, or otherwise convey any asset with a fair market value in excess of $500 without approval ofthe Probation Officer until all financial obligations imposed by the Court have been satisfied in full.

These conditions are in addition to any other conditions imposed by this judgment.

CR-104 (wpd 10/18)

JUDGMENT & PROBATION/COMMITMENT ORDER

PageS

Exhibit P page 84

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 85 of 229 Page ID #:994

Caae (-
Case 2:13-cr-00822-0L " Document 1686 Filed 01/28/19

6 of 6 Paae ID #:12576

USA vs. Andre Brown

DocketNo.: cR,3-00822-0DW-'2

RETURN

I have executed the within Judgment and Commitment as follows:

Defendant delivered on

to

Defendant noted on appeal on

Defendant released on

Mandate issued on

Defendant's appeal determined on

Defendant delivered on

to

at

the institution designated by the Bureau ofPrisons, with a certified copy of the within Judgment and Commitment.

United States Marshal

By

Date

Deputy Marshal

CERTIFICATE
I hereby attest and certify this date that the foregoing document is a full, true and correct copy of the original on file in my office, and in my legal custody.
Clerk, U.S. District Court

Filed Date

By Deputy Clerk

FOR U.S. PROBATION OFFICE USE ONLY
Upon a finding ofviolation of probation or supervised release, I understand that the court may (1) revoke supervision, (2) extend the term ofsupervision, and/or (3) modify the conditions ofsupervision.
These conditions have been read to me. I fully understand the conditions and have been provided a copy ofthem.
(Signed) Defendant
U.S. Probation Officer/Designated Witness

CR-104 (wpd 10/18)

JUDGMENT & PROBATION/COMMITMENT ORDER

Page6

Exhibit P page 85

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 86 of 229 Page ID #:995

BP-A0396

Certificate of Record coFRM

JUNE 10

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

I Melissa Arnold

, hereby certify and attest that I am the

CASE MANAGEMENT COORDINATOR and as such that I am the official custodian of the

records of this Institution whose official name and address is:

Federal Correctional Complex Lompoc 3901 Klein Blvd Lompoc, CA 93436

and that the following and attached records are true and correct copies of records of said institution pertaining to:

Name : SHAWN L . FEARS

and consisting of:

(1) Photograph (4) Other:

Register No. _3_4_1_8_3_-_0_6_o_______________

(2) Fingerprint card

( 3) Commitment

IN WITNESS WHEREOF, I have hereunto set my hand at

this -26-----------

20 _2_0_ _

STATE OF -CA- - - - - - - - - -
COUNTY OF Santa Barbara
Subscribed and sworn to before me this

Custodian of Records
day of -----------' 20

Record Copy - Requester; Copy - Central File

Signature of Officer Authorized to Administer Oaths (18 U.S.C. 4004)

PDF

Prescribed by P5800

Replaces BP-396.058 of MAY 94

Exhibit Q page 86

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 87 of 229 Page ID #:996
Case: 1:91-cr-00331-LW Doc #: 130 Filed: 08/08/11 1 of 3. PageID #: 19
OAO 245D (Rev. 12/07) Judgment in a Criminal Case for Revocations Sheet 1
UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA v.

THE DEFENDANT: G admitted guilt to violation of condition(s) G was found in violation of condition(s) The defendant is adjudicated guilty of these violations:

Violation Number

Nature of Violation

Judgment in a Criminal Case
(For Revocation of Probation or Supervised Release)
Case No. USM No.
Defendant’s Attorney of the term of supervision. after denial of guilt.
Violation Ended

The defendant is sentenced as provided in pages 2 through the Sentencing Reform Act of 1984.
G The defendant has not violated condition(s)

of this judgment. The sentence is imposed pursuant to and is discharged as to such violation(s) condition.

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances.

Last Four Digits of Defendant’s Soc. Sec. No.: Defendant’s Year of Birth: City and State of Defendant’s Residence:

Date of Imposition of Judgment

s/Christopher A.

Boyko

Signature of Judge

Name and Title of Judge

Date

Exhibit Q page 87

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 88 of 229 #:997
Case: 1:91-cr-00331-LW Doc #: 130 Filed: 08/08/11 2 of 3. PageID #: 20
AO 245D (Rev. 12/07) Judgment in a Criminal Case for Revocations Sheet 2— Imprisonment

Page ID

DEFENDANT: CASE NUMBER:

Judgment — Page

of

IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total total term of :

G The court makes the following recommendations to the Bureau of Prisons:

G The defendant is remanded to the custody of the United States Marshal.

G The defendant shall surrender to the United States Marshal for this district:

G at

G a.m. G p.m. on

.

G as notified by the United States Marshal.

G The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

G before 2 p.m. on

.

G as notified by the United States Marshal.

G as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on at

to with a certified copy of this judgment.
UNITED STATES MARSHAL By
DEPUTY UNITED STATES MARSHAL

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This page is always included when printing.
Exhibit Q page 88

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 89 of 229 Page ID #:998
Case: 1:91-cr-00331-LW Doc #: 130 Filed: 08/08/11 3 of 3. PageID #: 21

AO 245D (Rev. 12/07) Judgment in a Criminal Case for Revocations Sheet 3 — Supervised Release

DEFENDANT: CASE NUMBER:

SUPERVISED RELEASE

Judgment—Page

of

2

Upon release from imprisonment, the defendant shall be on supervised release for a term of : NO FURTHER SUPERVISION

The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. The defendant shall not commit another federal, state or local crime. The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter as determined by the court. G The above drug testing condition is suspended, based on the court’s determination that the defendant poses a low risk of
future substance abuse. (Check, if applicable.) G The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if G The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.) G The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works,
or is a student, as directed by the probation officer. (Check, if applicable.) G The defendant shall participate in an approved program for domestic violence. (Check, if applicable.)
If this judgment imposes a fine or restitution, it is be a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

1)

the defendant shall not leave the judicial district without the permission of the court or probation officer;

2)

the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first

five days of each month;

3)

the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation

officer;

4)

the defendant shall support his or her dependents and meet other family responsibilities;

5)

the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training,

or other acceptable reasons;

6)

the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;

7)

the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any

controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;

8)

the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;

9)

the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person

convicted of a felony, unless granted permission to do so by the probation officer;

10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer;

11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;

12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and

13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such notification requirement.

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Include this page when printing?

Yes

No

Exhibit Q page 89

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 90 of 229 Page ID #:999

Case: 1:91-cr-00331-LW Doc#: 130 Filed: 08/08/11 1 of 3. PagelD #: 19
~O 245D (Rev. 12/07) Judgment in a Criminal Caso for Revocations Sheel I

UNITED STATES DISTRICT COURT
Northern District ofOhio

UNITED STATES OF AMERICA v.
SHAWN FEARS

lion or Supervised Release)

Case No. 1:91CR331-001

USM No. 34183-060

THE DEFENDANT: ~ admitted guilt to violation ofcondition(s)

EDWARDS. WADE1 Jr.
Defendant's Attorney
_1_ _ _ _ _ _ _ _ _ ofthe term ofsupervision.

D was found in violation ofcondition(s)

after denial ofguilt

The defendant is adjudicated guilty ofthese violations:

Violation Number
1.

Nature of Violation New Law Violation - Conspiracy to Possess With Intent to Distribute Cocaine

Vlolatlon Ended 08/11/2010

The defendant is sentenced as provided in pages 2 through __2___ ofthis judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.
D The defendant has not violated condition(s) - - - - - - and is discharged as to such violation(s) condition.

It is ordered that the defendant must notify the United States attorney for this district within 30 days ofany change of name, residence, or mailing address until all rmes, restitution, costs, and ~al assessments imposed b_y this judgment are fully PB!d. Jfordered to pay restitution, the defendant must notify the coun and United States attorney ofmaterial changes an economic circumstances.

Last Four Digits of Defendant's Soc. Sec. No.: .!§!!L
Defendant's YearofBirth: 1969 City and State ofDefendant's Residence: Euclid OH 4417

08/04/2011

Date oflmposition ofJudgment

a/Christopher A. Boyko

Signature ofJudge

Christopher A. Boyko, U.S. Judge Name and Title ofJudge

08/08/2011 Date

Exhibit Q page 90

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 91 of 229 Page ID #:1000

Case: 1:91-cr-00331-LW Doc#: 130 Filed: 08/08/11 2 of 3. PagelD #: 20

AO 24SD (Rev. 12'07) Judgment in a CriminaJ Case for Revocations Sheet 2-lmprisonmcnt

Judgment-Page __g_ of

2

DEFENDANT: SHAWN FEARS

CASE NUMBER: 1:91 CR331..001

IMPRISONMENT
The defendant is hereby committed to the custody ofthe United States Bureau of Prisons to be imprisoned for a total total term of:
32 Months to run Consecutive to 120 Month Sentence In Case No. 1:10CR412-001

0 The court makes the following recommendations to the Bureau ofPrisons:

';/ The defendant is remanded to the custody ofthe United States Marshal.
0 The defendant shall surrender to the United States Marshal for this district: D at- - - - - - - - 0 a.m. 0 p.m. on 0 as notified by the United States Marshal.
0 The defendant shall surrender for service ofsentence at the institution designated by the Bureau ofPrisons: 0 before 2 p.m. on 0 as notified by the United States Marshal. D aw notified by the Probation or Pretrial Services Office.
RETURN
I have executed this judgment as follows:

"Defendant delivered on

lO\ I\ \ \ I

to ~ ~1eN

at _3:'_1_(_,__/lr.....,.\__'- ____ w\ith a ce)rtified copy ofthisjudgment.

Exhibit Q page 91

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 92 of 229 Page ID #:1001

,.)-

'

Case: 1:91-cr-00331-LW Doc #: 130 Filed: 08/08/11 3 of 3. PagelD #: 21

AO 24SD (Rev. 12/07) Judgment in a CrimfnaJ Case for Revocadom Sheet 3- Supervised Release

Judgment-Page _

of _ _2__

DEFENDANT: SHAWN FEARS

CASE NUMBER: 1:91CR331-001"

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a tenn of: NO FURTHER SUPERVISION

The defendant must report to the probation office in the district to which the defendant is released within 72 hours ofrelease from the custody ofthe Bureau ofPrisons.

The defendant shall not commit another federal, st_ate or local crime.

The defendant shall not unlawfully pqssess a controlled substance. The defendant shall refrain from anY. unlawful use ofa controlled

substance. The defendant shall submit to one drug test within IS days ofrelease from imprisonment ancl at least two periodic drug

tests thereafter as detennined by the court.

·

D The above drug testing condition is suspended, based on the court's determination that the defendant poses a low risk of future substance abuse. (Check, ·if applicable.)

-0 The defendant shall not possess a fireann, ammunition, destructive device, or any other dangerous weapon. (Check, if

D The defendant shall cooperate in the collection ofDNA as directed by the probation officer. (Check, ifapplicable.)

D The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or is a student, as directed by the probation officer. (Check, ifapplicable.)

D The defendant shall participate in an approved program for domestic violence. (Check, ifapplicable.)

Ifthisjudgment imposes a fine or restitution, it is be a condition ofsupervised release that the defendant pay in accordance with the Schedule ofPayments sheet ofthis judgment.

The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

I) the defendant shall not leave the judicial district without the pennission ofthe court or probation officer; 2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first
five days ofeach month; 3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions ofthe probation
officer; 4) the defendant shall support his or her dependents and meet other family responsibilities; 5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training,
or other acceptable reasons; 6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment; 7) the.defendant shall refrain from excessive use ofalcohol and shall not purchase, possess, use, distribute, or administer any
controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician; 8) the defendant shall not frequent places where controlled substances are illegally sold~ used, distributed, or administered; 9) the defendant shall not associate with any ~ons engaged in criminal actMty and shall not associate with any person
convicted ofa felony, unless granted pennassion to do so by the probation officer; 10) the defendant shall pennit a probation officer to visit him or her at any time at home or elsewhere and shall pennit
confascation ofany contraband observed in plain view ofthe probation officer; 11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a Jaw
enforcement officer; 12) th~ defendant shl!II ~ot enter into any agreement to act as an· infonner or a special agent ofa law enforcement agency
without the perm1ss1on ofthe court; and 13) as directed by the probation officer, the defendant shall noticy third parties ofrisks that may be occasioned by the
defendant's criminal record or personal history or characteristics ana shall pennit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.

Exhibit Q page 092

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 93 of 229 Page ID #:1002

BP-A0396

Certificate of Record CDFRM

JUNE 10

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

I Melissa Arnold

, hereby certify and attest that I am the

CASE MANAGEMENT COORDINATOR and as such that I am the official custodian of the records of this Institution whose official name and address is:

Federal Correctional Complex Lompoc 3901 Klein Blvd Lompoc, CA 93436

and that the following and attached records are true and correct copies of records of said institution pertaining to:

Name: FELIX SAMUEL GARCIA

and consisting of:

(1) Photograph (4) Other:

Register No. _4_6_6_9_3_-_2_9_8_______________

(2) Fingerprint card

(3) Commitment

IN WITNESS WHEREOF, I have hereunto set my hand at

------ this _2_6--------------------- day of_M_a......,.---+--------------------------------- 20 20

STATE OF -C-A------------------
COUNTY OF Santa Barbara Subscribed and sworn to before me this

Custodian of Records
day of ------------------' 20

Record Copy - Requester; Copy - Central File

Signature of Officer Authorized to Administer Oaths (18 U.S.C. 4004)

PDF

Prescribed by P5800

Replaces BP-396.058 of MAY 94

Exhibit R page 93

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 94 of 229 Page ID

#:1003

r'

r

f ILED 1
Case 3:14-cr-00657-BTM Document 546 Filed 07/29/15 Pa e 1 of

~O 2458 (CASO) (Rev. 4/14} Judgment in a Criminal Case Sheet 1

JUL 2 9 2015

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

UNITED STA TES OF AMERICA
v.

JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed On or After November I, 1987)

FELIX SAMUEL GARCIA [I]

Case Number: 14CR06S7-BTM

MICHAEL LITTMAN

REGISTRATION NO. 46693298
D

Defendant's Attorney

THE DEFENDANT:
(81 pleaded guilty to count(s) 3 OF THE SUPERSEDINO INDICTMENT
D was found guilty on count(s),_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

after a plea ofnot guilty. Accordingly. the defendant is adjudged guilty of such count(s), which involve the following offense(s):

Title & Section
21 use 841(a)(t)

Nature of Offense POSSESSION OF METHAMPHETAMINE WITH INTENT TO DISTRIBUTE

Count Number(s)
3

The defendant is sentenced as provided in pages 2 through 4 ofthis judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.
D The defendant has been found not guilty on c o u n t ( s ) - - - - - - - - - - - - - - - - - - - - - - - - -

D 181 Count(s) Underlying/remaining counts ofthe Indictment/Sup. Indictment is

aref81 dismissed on the motion of the United States.

f8J Assessment: $100 to be paid at the rate of$2S per quarter through the lnmate Financial Responsibility Program.

18] Fine waived

D . Forfeiture pursuant to order filed

, included heroin.

IT IS ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change ofname, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. Ifordered to pay restitution, the defendant shall notify the court and United States Attorney ofany material change in the defendant's economic circumstances.

JULY 24, 2015
Date of Imposition ofSentence

HON~ UNITED STATES DISTRICT JUDGE
14CR0657-BTM

Exhibit R page 94

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 95 of 229 Page ID #:1004
r

Case 3:14-cr-00657-BTM Document 546 Filed 07/29/15 Page 2 of 4

AO 2458 (CASO) (Rev. 4/14) Judgment in a Criminal case Sheet 2 - Imprisonment

DEFENDANT: FELIX SAMUEL GARCIA [I]

Judgment - Page --2._ of

4

CASE NUMBER: 14CR06S7-BTM

IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of

EIGHTY-SEVEN (87) MONTHS.

D SentenceimposedpursuanttoTitleSUSCSection 1326(b). 181 The court makes the following recommendations to the Bureau ofPrisons:

J/)u ~ 11 if.eJ~
~DMOSK~ UNITED STATES DISTRICT JUDGE

That the defendant participate in the 500 hour RDAP program. That the defendant serve his sentence at an institution in California.

D The defendant is remanded to the custody ofthe United States Marshal.

D The defendant shall surrender to the United States Marshal for this district:

Oat

Oa.m. op.m. on - - - - - - - - - - -

as notified by the United States Marshal.

18) The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
181 before 12:00 p.m. on 09/25/201S or to this Court by 2:00p.m. on that same date. D as notified by the United States Marshal. D as notified by the Probation or Pretrial Services Office.

RETURN

I have executed th~~nt as follows:

Defendant~on
I Ix at bea..(dffq,,
I

f/ , l b -l ' j

to fCC{],ffl,rJ. f#fo~ Z Jt1L-

.with a certified copy ofthis judgment.

~cV~7~';;;.d::;;:

C#, By

C.,?cP

Dlif:Y'l'Y t:11iffB6 ST1CTl!S MARSJb\L ,

14CR06S7-BTM
Exhibit R page 95

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 96 of 229 #:1005
r
Case 3:14-cr-00657-BTM Document 546 Filed 07/29/15 Page 3 of 4

Page ID

AO 24SB (CASD) (Rev. 4/14) Judgment in a Criminal Case Sheet 3 - Supervised Release

DEFENDANT: FELIX SAMUEL GARCIA [11

II

CASE NUMBER: l4CR06S7-BTM

SUPERVISED RELEASE

Judgment-Page _.J._ of _ _4_ _

Upon release from imprisonment, the defendant shall be on supervised release for a term of: THREE (3) YEARS.

.

The defendant shall report to the probation office in the district to which the defendant is released within 72 hours of release from

the custody of the Bureau of Prisons.

·

.

The defendant shall not commit another federal, state or local crime.

For o/fe11ses committed 011 01· ajler September J3, 1994:

The defendant shall not illegally possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled

substance. The defendant shall submit to one drug test within 1S days of release from imprisonment and at least two periodic drug tests

thereafter as determined by the court. Testing requirements will not exceed submission of more than 4 drug tests per month during

the term of supervision, unless otherwise ordered by court.

--

0 The above drug testing condition is suspended, based on the court's detennination that the defendant poses a low risk of

future substance abuse. (Check, if applicable.)

181 The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon.

18) The defendant shall cooperate in the collection ofa DNA sample from the defendant, pursuant to section 3 ofthe DNA Analysis

Backlog Blimin{ltion Act of2000, J)Ursuant to 18 USC sections 3S63(a)(7} and 3S83(d} ·

.

D The detenclant shall comply with tlie requirements ofthe Sex Offender Registration anci Notification Act (42 U.S.C. § 16901, ct seq.) as directed by the probation officer, the Bureau ofPrisons, or any state sex offender registration agency in which he or she resides, works,is a student, or

.was convicted ofa qualifying offense. (Check ifapplicable.)
D The defendant shall participate in an approved program for domestic violence. (Check, if applicable.)

lf this judgment imposes a tine or restitution obligation, it is a condition of supervised release that the defendant pay any such fine or restitution that remains unpaid at the commencement of the term of supervised release in accordance with the Schedule of Payments set forth in this judgment.

The defendant must comply with the standard conditions that have been adopted by this court. The defendant shall also comply with any special c~nditions imposed.

STANDARD CONDITIONS OF SUPERVISION

I) the defendant shall not 1eave the judicial district without the permission of the court or probation officer; 2) the defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer; 3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; 4) the defendant shall support his or her dependents and meet other family responsibilities; 5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other
acceptable reasons~ 6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment; 7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any
controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician; 8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered; 9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of
a felony, unless granted permission to do so by the probation officer; IO) the defendant shall permit a probation officer to visit him or her nt any time at home or elsewhere and shall permit confiscation of any
contraband observed in plain view of the probation officer; I J) the defendant shall notify the probation officer within seventy-two hours ofbeing arrested or questioned by a law enforcement officer; 12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the
permission of the court; and 13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant•s criminal
record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant•s compliance with such notification requirement.
14CR0657-BTM

Exhibit R page 96

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 97 of 229 Page ID #:1006

(

Case 3:14-cr-00657-BTM
AO 24SB (CASD) (Rev. 4/14) Judgment in a Criminal Case Sheet 4 - Special Conditions
DEFENDANT: FELIX SAMUEL GARCIA [1] CASE NUMBER: 14CR0657-BTM

Document 546

Filed 07/29/15 Page 4 of 4
1udgancnt-Page _ _4 _
II

or _ ...4._ _

SPECIAL CONDITIONS OF SUPERVISION
1v1 Submit person, property, residence, office or vehicle to a search, conducted by a United States Probation Officer at a reasonable time and in lat a reasonable manner, based upon reasonable suspicion ofcontraband or evidence ofa violation ofa condition ofrelease; failure to submit to
a search may be grounds for revocation; the defendant shall warn any other residents that the premises may be subject to searches pursuant to this condition.
18) Participate in a program ofdrug and alcohol abuse treatment including testing and counseling, with at least 1to 8 tests per month and 1to 8
counseling sessions per month as directed by the probation officer.
D Not transport, harbor, or assist undocumented aliens.
D Not associate with ~ndocumented aliens or aJien smugglers.
D Not reenter the United States illegally.
181 Not enter the Republic of Mexico without written pennission ofthe Court or probation officer. 181 Report all vehicles owned or operated, or in which you have an interest, to the probation officer.
lg) Not possess any narcotic drug or controlled substance without a lawful medical prescription.
l8J Not associate with known users of, smugglers of, or dealers in narcotics, controlled substances, or dangerous drugs in any form. D Participate in a program ofmental health treatment as directed by the probation officer. The Court authorizes the release ofthe pre-sentence
report and available psychological evaluations to the mental health provider, as approved by the probation officer. The defendant shaU consent to the release ofevaluations and treatment information to the probation officer and the Court by the mental health provider.

D Take no medication containing a controlled substance wid1out valid medical prescription, and provide proofofprescription.to the probation officer, ifdirected.

D Provide complete disclosure of personal and business financial records to the probation officer as requested.

D Reside in a Residential Reentry Center (RRC) as directed by tlte probation officer for a period of days upon release. This is a non punitive placement.

181 Seek and maintain full time employment and/or schooli,ng or a combination of both.

0 Resolve all outstanding warrants within

days.

D Complete

hours of community service in a program approved by the probation officer within

181 Abstain from all use of alcohol.

D Ifdeported, excluded, or allowed to voluntarily leave the United States, obey aU laws federal, state and local and not reenter the United States illegally and report to the probation officer within 72 hours ofany reentry to the United States; the other conditions ofsupervision arc suspended while the defendant is out ofthe United States after deportation, exclusion, or voluntary departure.

14CR0657-BTM
Exhibit R page 97

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 98 of 229 Page ID #:1007

BP-A0396

Certificate of Record CDFRM

JUNE 10

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

I Melissa Arnold

, hereby certify and attest that I am the

CASE MANAGEMENT COORDINATOR and as such that I am the official custodian of the

records of this Institution whose official name and address is:

Federal Correctional Complex Lompoc 3901 Klein Blvd Lompoc, CA 93436

and that the following and attached records are true and correct copies of records of said institution pertaining to:

Name : VINCENT REED and consisting of:

(1) Photograph (4) Other:

Register .No. _2_7_1_7_3_-_0_1_6---------------

(2) Fingerprint card

(3) Commitment

IN WITNESS WHEREOF, I have hereunto set my hand at

Maygjll lb.I\~ this -26----------day of

!0

20 -20---

Custodian of Records

STATE OF -CA- - - - - - - - - -
COUNTY OF Santa Barbara
Subscribed and sworn to before me this _ _ _ _ day of -----------------' 20

Record Copy - Requester; Copy - Central File

Signature of Officer Authorized to
Administer Oaths (18 u.s.c. 4004)

PDF

Prescribed by P5800

Replaces BP-396.058 of MAY 94

Exhibit S page 98

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 99 of 229 Page ID #:1008

(AMENDED) UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

UNITED STATES OF AMERfCA
V.

JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed On or After November 1, 1987)

Case Number: CR 03-560-1

FILED

VINCENT REED
THE DEFENDANT:

Joseph Beshouri Defendant's Attorney

APR 12 2006
NANCY MAVER WMITilNGTO~ CLERK U.S. DISTRICT COURT

Was found guilty by jury trial on Count(s) 1, 5, and 7 of the Superseding Indictment on December 15, 2005

Accordingly, the defendant is adjudged guilty of such count(s), involving the following offense(s):

Title and Section 18 USC 2113(a) and (d)

Nature of Offense Armed Bank Robbery

22 DC Code 2803(a)(1) and (b)(1)
22 DC Code 303

Armed Carjacking Destroying Property (Felony)

Date Offense Concluded
December 12,2003
December 12,2003
December 12,2003

Count{s) 1 5 7

As pronounced on March 21, 2006, the defendant is sentenced as provided in pages 2 through 4 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.

IT IS FURTHER ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid.

'v6- Signed this the //

day of _~~'6::C;._--------' 2006.

Defendant's Soc. Sec. No.: XXX-XX-1325 Defendant's Date of Birth: XX-XX-66 Defendant's USM No.: 27173-016 Defendant's Residence and Mailing Address:
• • • ~· I ! •• -- ••, ,-,
C2 /-. ', ·.·. ~-: c.:~z
.~ . .. .

Exhibit S page 99

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 100 of 229 Page ID #:1009

Defendant: :VINCENT REED Case Number: CR 03-560-1

Judgment - Page 2 of 4

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term ofTHREE HUNDRED (300) months on Count 1; ONE HUNDRED AND EIGHTY (180) on Count 5; and ONE HUNDRED AND TWO months on Count 7 to run concurrent with each other.

The Court makes the following recommendations to the Bureau of Prisons: That the defendant be permitted to participate in the 500 hour drug treatment program while serving his prison sentence. That the defendant be placed in a federal prison that can provide mental health services. That the defendant be permitted to serve his sentence at a facility where he can participate in a literacy program. The defendant is remanded to the custody of the United States Marshal.
RETURN I have executed this Judgment as follows:

rt~ Defendantdeli~on~ZS"·O<, to Fer Get............

t:p 1-t:M. t,,,/l

I with a certified copy of this Judgment.

at

k.Lt.u..~ )kkoo ~a«D-

•- - · ·--·--·--·· ------ M bs,,tifM> iaw gf1mni ;lriT

VERIFICATION

Verified with: i);{',,t,

- r ~ Title:

~

~l:za:\l+ ~ Phone#: ~CJiz.)~ ~11.e:Z.

verified by:

---=>

Exhibit S page 100

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 101 of 229 Page ID #:1010

Defendant: VINCENl REED ( ============f Case Number: CR 03-560-1

Judgment - Page 3 of 4

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of FIVE (5) years on Count 1; FIVE (5) years on Count 5 and THREE (3) years on Count 7 to run concurrent with each other.

. While on supervised release, the defendant shall not commit another federal, state, or local crime; shall not illegally possess a controlled substance; shall comply with the standard conditions that have been adopted by this court (set forth below); and shall comply with the following additional conditions:

1.

The defendant shall report in person to the Probation Office in the district to which the defendant is released as soon

as possible, but in no event later than 72 hours of release from the custody of the Bureau of Prisons.

If this judgment imposes a fine, special assessment, costs, or restitution obligation, it shall be a condition of supervised release

that the defendant pay any such fine, assessments, costs, and restitution that remain unpaid at the commencement of the term

of supervised release.

STANDARD CONDITIONS OF SUPERVISION

1.

You will not leave the judicial district without permission of the Court or probation officer.

2.

You will report to the probation officer and submit a truthful and complete written report within the first five days of each month.

3.

You will answer truthfully all Inquiries by the probation officer, and follow the instructions of the probation officer.

4.

You will support your dependents and meet other family responsibilities, to include complying with any court order or order of administrative

process requiring the payment of child support.

5.

You will work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons.

6.

You will notify the probation officer at least ten days prior to any change of residence or employment.

7.

You will not frequent places where controlled substances are illegally sold, or administered; you shall refrain from excessive use of alcohol and

will not purchase, possess, use, distribute or administer any controlled substance or paraphernalia related to such substances, except as prescribed

by a physician.

8.

You will not associate with any persons engaged In criminal activity, and will not associate with any person convicted of a crime unless granted

permission to do so by the probation officer.

9.

You will permit a probation officer to visit at any time at your home, employment or elsewhere and will permit confiscation of any contraband

observed in plain view by the probation officer.

. .

10.

You will notify the probation officer within seventy-two hours of being arrested, questioned, or upon having any contact with a law enforce111e~\

, officer.

·

11. · You will not enter Into any agreement to act as an informer or special agent of a law enforcement agency without the permission of the Court.

12.

As directed by the probation officer, you will notify third parties of risks that may be occasioned by your criminal record or personal history or

characteristics, and permit the probation officer to make such notifications and to confirm your compliance with such notification requirements.

13.

You will not possess a firearm, destructive device, or other dangerous weapon.

ADDITIONAL CONDITIONS:

The defendant can not be rearrested.

The defendant shall provide a DNA sample.,

The defendant shall not incur new credit charges or open additional lines of credit without the approval of the Probation Office.

The defendant shall provide the Probation Office with access to any requested financial information.

The defendant shall be accessed for drug treatment, and if found to be needed, then the defendant must participate in and complete a drug treatment program and submi~ to regular drug testing at the discretion of the Probation Office.

The defendant shall be accessed for mental health treatment, and if found to be needed, then the defendant must participate in a mental health treatment program.

The Probation Office shall release the presentence investigation report to all appropriate agencies in order to execute the

sentence of the Court. These agencies shall return the presentence report to the Probation Office upon completion or

termination from treatment.

·

The Court finds that the defendant does not have the ability to pay a fine, or costs, of incarceration or supervision.

Exhibit S page 101

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 102 of 229 Page ID #:1011

r· Defen.dant: VINCENT REED ============t

Judgment - Page 4 of 4

Case Number: CR 03-560-1

CRIMINAL MONETARY PENALTIES
The defendant shall pay the foliowing total criminal monetary penalties; payments shall be applied in the following order: (1) assessment; (2) restitution; (3) fine; (4) cost of prosecution; (5) interest; (6) penalties.

ASSESSMENT $300.00

RESTITUTION $45,158.66

FINE $0.00

ASSESSMENT
It is ordered that the defendant shall pay to the United States a special assessment of 100.00 for Count 1 to (Clerk of Court); 100.00 for Count 5, and 100.00 for Count 7 for a total of $300.00, which shall be due immediately.
Special Assessment for Count 5 (100.00} and Count 7 (100.00} total 200.00 is payable to:
Victims of Violent Crimes Criminal Finance Office, Room 4203 DC Superior Court 500 Indiana Avenue, NW Washington, DC
RESTITUTION
The defendant shall make restitution in the total amount of $45,158.66. The interest for restitution is waived by the Court.
The defendant shall make restitution to the following persons in the following amounts:

Nam~ of Payee
I
Engraving and Printing Federal Credit Union
Catholic University of America
JR Landscaping

Payee Address

City, State, Zip

$24,691.54
$4,071.98 $17,640.14

If a victim has received compensation from insurance or any other source with respect to a loss, restitution shall be paid to the person who provided or is obligated to provide the compensation, but all restitution of victims shall be paid to the victims before any restitution is paid to such a provider of compensation.
If the fine and/or restitution is not paid, the Court may sentence the defendant to any sentence which might have been originally imposed. See 18 U.S.C. § 3614. Pursuant to 18 U.S.C. §§ 3572(d)(3} and 3664{k), the defendant shall notify the Court and the Attorney General ofany material change in the defendant's economic circumstances that might affect the defendant's ability to pay a fine or restitution·; As set out in 18 U.S.C. § 3664(n}, if the defendant receives substantial resources from any source, including inheritance, settlement, or other judgment, during the period of incarceration, the defendant shall apply the value of such resources to any restitution or fine still owed.
All criminal monetary penalty payments are to be made to the United States District Court Clerk, 333 Constitution Ave., N.W., Rm. 1825, '-rashington, D.C. 20001, except those payments made through the Bureau of Prisons' Inmate Financial Responsibility Program.

Exhibit S page 102

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 103 of 229 Page ID #:1012

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
V.
VINCENT REED
THE DEFENDANT:

JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After November 1, 1987)

FILED

Case Number: CR 03-560-1

Joseph Beshouri

MAR 21 2006

Defendant's Attorney

NANCY MAYER WHITTINGTON,. CLERK U.S. DISTRICT COURT

Was found guilty by jury trial on Count(s) 1, 5, and 7 of the Superseding Indictment on December 15, 2005

Accordingly, the defendant is adjudged guilty of such count(s), Involving the following offense(s):

Title and Section 18 USC 2113(a) and (d)

Nature of Offense Armed Bank Robbery

22 DC Code 2803(a){1) and (b)(1)
22 DC Code 303

Armed Carjacking Destroying Property (Felony)

Date Offense Concluded
December 12,2003
December 12,2003
December 12,2003

Count(s)
5 7

As pronounced on March 21, 2006, the defendant Is sentenced as provided In pages 2 through 4 of this judgment.

The sentence Is imposed pursuant to the Sentencing Reform Act of 1984.

·

IT IS FURTHER ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any. change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid.
~-......----------.-g··£_ Signed this the 2./ &t dayof__
4 . Honorable Reggie B. Walton

Defendant's Soc. Sec. No.: XXX-XX-1325 Defendant's Date of Birth: .XX-XX-66 Defendant's USM No.: 27173-016 Defendant's Residence and Mailing Address:

Exhibit S page 103

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 104 of 229 Page ID #:1013

Defendant: VINCEN I REED Case Number: CR 03..560-1

Judgment - Page 2 of 4

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be Imprisoned for a term of THREE HUNDRED AND TWENTY-SEVEN (327) months on Cou·nt 1; ONE HUNDRED AND EIGHTY (180) on Count 5; and ONE HUNDRED AND TWO months on Count 7 to run concurrent with each other.

The Court makes the following recommendations to the Bureau of Prisons: That the defendant be permitted to participate in the 500 hour drug treatment program while serving his prison sentence. That the defendant be placed in a federal prison that can provide mental health services. That the defendant be permitted to serve his sentence at a facility where he can participate in a Uteracy program. The defendant is remanded to the custody of the United Slates Marshal.
RETURN I have executed this Judgment as follows:

'°-----::.~-.~.. l ~ivered on lO fflt4

-_...W......._.l_ G _ _ _ _ _ _· at

_,c._....,..._ _ _ _ _ _. . ,. - - ~..-....~...". """----~=+-.

with a certified copy of this Judgment.

kl. ~g..µt,. WkUE1!

WRited States MmSha(

l. ~ By. 9eputyMaraha1

1 C5::D

Exhibit S page 104

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 105 of 229 Page ID #:1014
r

Defendant: VINCENT REED Case Number: CR 03-560-1

Judgment .. Page 3 of 4

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of FIVE (5) years on Count 1; FIVE (5) years on Count 5 and THREE (3) years on Count 7 to run concurrent with each other.

Whffe on supervised refease, the defendant shall not commit another federal, state, or focal crime; shall not illegally possess a controlled substance; shall comply with the standard conditions that have been adopted by this court (set forth b~low); and shall comply with the following additional conditions:

1. The defendant shall report in person to the Probation Office in the district to which the defendant is released as soon as possible, but In no event later than 72 hours of release from the custody of the Bureau of Prisons.
If this judgment Imposes a fine, special assessment, costs, or restitution obligation, It shall be acondition of supervised release that the defendant pay any such fine, assessments, costs, and restitution that remain unpaid at the commencement of the term of supervised release.

STANDARD CONDITIONS OF SUPERVISION

1.

You wm not leave the Judiclal district wllhout permission of the Court or probation officer.

2.

You wiU report to the probaHon officer and submit a truthful and complete written report within the first five days of each month.

3.

You will answer trulhfuUy au Inquiries by the probation officer, and follow Iha Instruction~ of the probaUon officer.

4.

You will support your dependents and meet other family responsibilities, to lnclUde complying with any court order or order of admlnistraUve

process requlring the payment of child support.

5.

You will work regularly at a lawful occupation unless excused by the probation officer for schooJlng, training. or other acceptable reasons.

6.

You will noury the probation officer at least ten days prior to any change of residence or employment.

7.

You will not frequent places where controtled substances are illegally sold. or administered: you shall refrain from excessive use of alcohol and

will not purchase, possess, use. distribute or administer any controlled substance or paraphernalia related lo such substances, excepl as

prescribed by a physician.

8.

You will nol 8$soclate with any persons engaged in criminal activity, and will not associate with any person convicted of a crime unless granted

permission to do so by the probation officer.

9.

You wift permit a probation officer to visit at any time at your home, employment or elsewhere and will permit confiscaUon of any contraband

observed In plain view by the probation officer.

10.

You will notify the probation officer within seventy-two hours of being a"ested. quesOoned, or upon having any contact Vt11h a law enforcement

officer.

11.

You will not enter Into any agreement to act as an Informer or special agent of a law enforcement agency without tile permission of the Court.

12.

As directed by lhe probarJon officer, you ~,, nolify third parties of risks thal may be occasioned by your crJminal record or personal history or

characteristics, and pennlt the proballon officer to make such notifications and to co11firm your compliance with such notification requirements.

13.

You will not possess a firearm, destructive device, or other dangerous weapon.

ADDITIONAL CONDITIONS:
The defendant can not be rearrested.
The defendant shall provide a DNA sample.
The defendant shall not Incur new credit charges or open additional lines of credit without the approval of the Probation Office.
The defendant shall provide the Probation Office with access to any requested financial information.
The defendant shall be accessed for drug treatment, and if found to be needed, then the defendant must participate in and complete a drug treatment program and submit to regular drug testing at the discretion of the Probation Office.
The defendant shall be accessed for mental health treatment, and if found to be needed, then the defendant must participate in a mental health treatment program.
The Probation Office shall release the presentence Investigation report to all appropriate agencies in order to execute the sentence of the Court. These agencies shall return the presentence report to the Probation Office upon completion or termination from treatment.
The Court finds that the defendant does not have the ability to pay a fine, or costs, of incarceration or supervision.

Exhibit S page 105

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 106 of 229 Page ID #:1015
r··

Defendant: VINCENT REED Case Number: CR 03-560-1

Judgment - Page 4 of 4

CRIMINAL MONETARY PENALTIES
The defendant shall pay the fofrowing total criminal monetary penalties; payments shall be applied in the following order: (1) assessment; (2) restitution; (3) fine; (4) cost of prosecution; (5) Interest; (6) penalties.

ASSESSMENT $300.00

RESTITUTION $45,158.66

FINE $0.00

ASSESSMENT
It ls ordered that the defendant shall pay to the United States a special assessment of 100.00 for Count 1 to (Clerk of Court); 100.00 for Count 5, and 100.00 for Count 7 for a total of $300.00, which shall be due immedlately.
Special Assessment for Count 5 (100.00) and Co~nt 7 (100.00) total 2~0.00 is payable to:
Victims of Violent Crimes Criminal Finance Office, Room 4203 DC Superior Court 500 Indiana Avenue, NW Washington, DC
RESTITUTION
The defendant shall make restitution in the total amount of $45,158.66. The Interest for restitution Is waived by the Court.
The defendant shall make restitution to the following persons In the following amounts:

Name of Payee
Engraving and Printing Federal Credit Union
Catholic University of America
JR Landscaping

Payee Address

City. State, Zip

$24,691.54
$4,071.98 $17,640.14

If a victim has received compensation from insurance or any other source with respect lo a loss, restitution shall be paid to the person who provided or is obligated to provide U,e compensation, but all restitution of victims shall be paid to the victims before any restitution Is paid to such a provider of compensation.
If the fine and/or restitution is not paid, the Court may sentence the defendant to any sentence which might have been originally imposed. See 18 U.S.C. § 3614. Pursuant to 18 U.S.C. §§ 3572{d)(3) and 3664(k), the defendant shall notify the Court and the Attorney General of any material change Jn the defendant's economic circumstances that might affect the defendant's abiJlty lo pay a fine or restitution. As set out in 18 U.S.C. § 3664(n), if the defendant receives substantial resources from any source, including inheritance, settlement, or other ju_dgment, during the period of incarceration, the defendant shall apply the value of such resources to any restitution or fine still owed.
All criminal monetary penalty payments are to be made to the United States District Court Clerk, 333 Constitution Ave., N.W., Rm. 1825, Washington, D.C. 20001, except those payments made through the Bureau of Prisons' Inmate Financial Responsibility Program.

Exhibit S page 106

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 107 of 229 Page ID #:1016

BP-A0396

Certificate of Record coFRM

JUNE 10

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

I Melissa Arnold

, hereby certify and attest that I am the

CASE MANAGEMENT COORDINATOR and as such that I am the official custodian of the

records of this Institution whose official name and address is:

Federal Correctional Complex Lompoc 3901 Klein Blvd Lompoc, CA 93436

and that the following and attached records are true and correct copies of records of said institution pertaining to:

Name: YONNEDIL CARROR TORRES

and consisting of:

(1) Photograph (4) Other:

Register No. _4_1_9_2_s_-_o_6_9_______________

(2) Fingerprint card

( 3) Cammi tmen t

IN WITNESS WHEREOF, I have hereunto set my hand at
this _2_6_ _ _ _ _ _ _ _ _ _ day of May ~
vir~~~~

20 -20- - -

STATE OF -CA- - - - - - - - - -
COUNTY OF Santa Barbara

- - - - Subscribed and sworn to before me this

day of -----------------' 20

Record Copy - Requester; Copy - Central File

Signature of Officer Authorized to Administer Oaths (18 U.S.C. 4004)

PDF

Prescribed by P5800

Replaces BP-396.058 of MAY 94

Exhibit T page 107

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 108 of 229 Page ID

#:1017

r--_

r

Case: 3:15-cr-..,J697, Document: 37, Filed: 07-21-2G.L\.,, Page 1 of 6

AO 2458

(Rev. I0/ 15) Judgment in a Criminal Case Sheet I

UNITED STATES DISTRICT COURT

JUDICIAL DISTRJCT OF PUERTO RICO

UN ITED STATES OF AMERICA v.

)
) JUDGMENT IN A CRIMINAL CASE
)

YONNEDIL CARROR-TORRES

)

Case Number: 3:15-cr-00697-1 (FAB)

)

THE DEFENDANT:

) USM N umber: 41928-069

)

)

Olga M. Shepard-De-Mari

Defendant's Allomey

iJ plea ded guilty to count(s)

One (1) and Two (2) on March 2, 2016

0 plea ded no lo co ntendere to count(s )
which was accepted by the court.
0 was found guilty on count(s)
after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

T itle & Section

Nature of Offense

Offense E nded

18:2119(2)and2

. with . ..: Carjackih ):

serious bodily injury and aiding and abetting. 4/29/2013
\

One

18:924(c)( 1)(A)(ii)

4/29/2013

Two

The defendant is sentenced as provided in pages 2 through the Sentencing Reform Act of 1984.

__5_ _ of this judgment. T he sentence is im posed purs uant to

0 The dcfenclanl has been found not guilty on count(s)

0 C ount(s) - - - - - - - - - - - - - Dis 0 are dismissed on the motion of the United S tates.
It is ordered that the defendant m ust notify the United States attorney for this district w ithin 30 days o f any change of name, residen ce, or mailing address until all fines, restitution, costs, and special assess ments imposed by this judgment are full y paid . If ordered to p ay restitution , the defendant mus t notify the court and United States attorney of material changes in economic circumstances .

July 21 , 2016

Date ofImposition ofJudgment

S/ Francisco A. Besosa
Signature of Judge

Francisco A. Besosa
Name and Title of Judge
July 21 , 2016
Date

U.S. District Judge

Exhibit T page 108

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 109 of 229 #:1018

r

r

Case: 3:15-cr-vd697, Document: 37, Filed: 07-21-20'..t.v, Page 2 of 6

AO 2458 (Rev. 10/15) Judgment in Criminal Case Sheet 2 - Imprisonment
DEFENDANT: YONNEDIL CARROR-TORRES CASE NUMBER: 3:15-cr-00697-1 (FAB)

Judgment - Page

2

of

Page ID
5

IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of:
One Hundred Twenty (120) months as to Count 1 and One Hundred Twenty (120) months as to Count 2, to be served consecutively to each other, for a total impris9nment term of Two Hundred Forty (240) months

'1 The court makes the following recommendations to the Bureau of Prisons:
That defendant be designated to the institution in Coleman, Florida. That defendant participate in the 500-hour drug treatment program, if he qualifies.

~ The defendant is remanded to the custody of the United States Marshal.
0 The defendant shall surrender to the United States Marshal for this district: D at - - - - - - - - - 0 a.m. 0 p.m. on 0 as notified by the United States Marshal.
0 The defendant shall surrendei: for service of sentence at the institution designated by the Bureau of Prisons: ' D before 2 p.m. on
0 as notified by the United States Marshal. D as notified by the Probation or Pretrial Services Office.

I have executed this judgment as follows:

RETURN

E Defendant delivered on /.s,=--·-"'/·-"W=----'-J.......__ _ _ _ _ _ _ _ _ __ to 01: w:Z: L
, with a certified copy of this judgment.

Exhibit T page 109

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 110 of 229

#:1019

r

r,

Case: 3:15-cr-vu697, Document: 37, Filed: 07-21-2010, Page 3 of 6

Page ID

AO 245B (Rev. I0/15) Judgment in a Criminal Case Sheet 3 - Supervised Release
DEFENDANT: YONNEDIL CARROR-TORRES CASE NUMBER: 3:15-cr-00697-1(FAB)
SUPERVISED RELEASE

Judgment-Page 3 of

5

Upon release from imprisonment, the defendant shall be on supervised release for a term of:
Five (5) years as to Count 1 and Five (5) years as to Count 2 to be served concurrently with each other
The defendant must report to the probation office in the district to which the defendant is released within 72 hours ofrelease from the custody of the Bureau of Prisons.
The defendant shall not commit another federal, state or local crime.
The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.
D The above drug testing condition is suspended, based on the court's determination that the defendant poses a low risk of
future substance abuse. (Check. ifapplicable.)
The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check. ifapplicable.)
The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, ifapplicable.)

D

The defendant shall comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which he or she resides,

works, is a student, or was convicted of a qualifying offense. (Check. ifapplicable.)

D The defendant shall participate in an approved program for domestic violence. (Check. ifapplicable.)
If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial district without the permission of the court or probation officer;
2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month;
3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
4) the defendant shall support his or her dependents and meet other family responsibilities;
5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons;
6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;
7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;
8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
9) the defendant shall not associate with any persons engaged in criminal activity and shalJ not associate with any person convicted of a felony, unless granted permission to do so by the probation officer;
I0) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer;
11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;
12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and

13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal
record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.

Exhibit T page 110

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 111 of 229 Page ID

#:1020

r~

r

A0245B (Rev. tO/t5)Ju~~nYfuidi~~'i/~v697, Document: 37, Filed: 07-21-2010, Page 4 of 6
Sheet 3C - Supervised Release
Judgment-Page 3A DEFENDANT: YONNEDIL CARROR-TORRES CASE NUMBER: 3:15-cr-00697-1(FAB)

of _5_ __

SPECIAL CONDITIONS OF SUPERVISION

1. He shall observe the standard conditions of supervised release recommended by the United States Sentencing Commission and adopted by this Court.
2. He shall not commit another Federal, state or local crime.
3. He shall not possess firearms, destructive devices, or other dangerous weapons.
4. He shall not possess controlled substances unlawfully.
5. He shall not use controlled substances unlawfully, and shall submit to a drug test within fifteen (15) days of release from imprisonment; after his release, defendant shall submit to random drug testing, not less than three (3) samples during the supervision period, but not more than 104 samples each year, in accordance with the Drug Aftercare Program Policy of the United States Probation Office, as has been approved by this Court. If the illegal use of controlled substances is detected in any sample, defendant shall participate in an inpatient or an outpatient substance abuse treatment program, for evaluation or treatment, as arranged by the Probation Officer; payment shall be based on his ability to pay or the availability of payments by third parties, as approved by the Court.
6. He shall participate in an approved mental health treatment program for evaluation and to determine if treatment is necessary. If treatment is necessary, it will be arranged by the Probation Officer in consultation with the treatment provider; the modality, duration and intensity of treatment will be based on the risks and needs identified. Defendant will contribute to the costs of those services, based on his ability to pay or the availability of payments by third parties.
7. He shall complete his high school education and shall participate in vocational training and a job placement program, as recommended by the U.S. Probation Officer.
8. He shall provide the Probation Officer access to any financial information upon request.
9. He shall submit himself and his property, house, residence, vehicle, office papers, effects, computers and other electronic communications or data storage devices or media to a search, at any time, with or without a warrant, by a probation officer, and if necessary, with the assistance of any other law enforcement officer, but only in the lawful discharge of the supervision functions of the probation officer, who must have a reasonable suspicion of contraband, or of evidence of a violation of a condition of supervised release. The probation officer may seize any electronic communication or electronic device or medium which will be subject to further forensic investigation or analysis. Failure to submit to a search or permit a seizure may be grounds for revocation of supervised release. The defendant shall warn any other resident or occupant that the premises may be subject to searches pursuant to this condition.
10. He shall cooperate in the collection of a DNA sample, pursuant to the Revised DNA Collection Requirements and Title 18, U.S. Code Sec. 3563(a)(9).

Exhibit T page 111

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 112 of 229 #:1021

r·

r

Case: 3:15.-cr -vu697, Document: 37, Filed: 07-21-20.10, Page 5 of 6

Page ID

AO 2458 (Rev. 10/15) Judgment in a Criminal Case Sheet 5 - Criminal Monetary Penalties

DEFENDANT: YONNEDIL CARROR-TORRES

Judgment - Page _ _ _ of

CASE NUMBER: 3:15-cr-00697-1(FAB)

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

TOTALS

Assessment
$ 200.00

Fine
$ 0.00

Restitution
$ 7,040.00

D The determi,nation of restitution is deferred un til
after such determination.

An Amended Judgm~nt in a Criminal Cas e (AO 245C) w ill be entered

,£j Th e defendant must make restitution (i nc luding community restitution ) to the following payees in the a m o unt listed below.

If the defendant makes a partial payment, each payee shall receive an approx ima te ly proportioned payment, unl ess spec ified oth e rwise in the priority o rder or percentage payment column below. H owever, pursuant to 18 U.S.C. § 3664(i), a ll nonfederal v ictim s must be paid before the Un ited States is paid.

Name of Payee

~ ......,,..,r-...,......,.....,,,;;;;;::::;;~f,i;;~..........

Clerk, U.S. District Co1,1r;tPue,.

for transfer to victim EPC.

Priority or Percentage

TOTALS

$

0.00 $ - - - - - - -7,0-40-.0-0

D Restitution amount o rdered pursuant to plea agreement $
D The defendant must pay interest on restitution and a fine o f more than $2,500 , unless the restitution or fine is paid in fu ll before the
fifteenth day after the date of the j udgment, pursuant to 18 U.S.C. § 36 12(1). All o f the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 36 I2(g).
D The court determined that the defendant does not have the ability to pay interest and it is ordered that: D the interest requirement is waived for the D fi ne D restitution. D the intere st requirement fo r the D fine D restitutio n is m odifie d as fo llo ws:

* Findings for the total amount of losses are required under Chapters l 09A , I I 0, I I OA , and 1 13A ofTitlc 18 for offenses c om mitted on or after
September I 3, I994, but before April 23, I996.

Exhibit T page 112

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 113 of 229 Page ID #:1022

('·

(

A0245B (Rev. IO/IS)Jud~ii~:a~ttln?iiaF~u697, Document: 37, Filed: 07-21-20:i.o, Page 6 of 6
Sheet 6 - Schedule of Payments

DEFENDANT: YONNEDIL CARROR-TORRES CASE NUMBER: 3:15-cr-00697-1(FAB}

Judgment- Page _______ of

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties is due as follows:

A l!lf' Lump sum payment of$ 7,240.00

due immediately, balance due

D not later than D in accordance

, or
D C, D D, D E, or O F below; or

B D Pa~ment to begin immediately (may be combined with DC,

D D, or O F below); or

C D Payment in equal

(e.g., weekly, monthly, quarterly) installments of $

over a period of

(e.g., months or years), to commence

(e.g., 30 or 60 days) after the date of this judgment; or

D D Payment in equal

(e.g., weekly, monthly, quarterly) installments of $

_ over a period of

(e.g., months oryears), to commence

(e.g., 30 or 60 days) after release from imprisonment to a

term of supervision; or

E O Payment during the term of supervised release will commence within

(e.g., 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or

F D Special instructions regarding the payment of criminal monetary penalties:

Unless the court has expressly ordered otherwise, ifthis judgment imposes imprisonment, payment ofcriminal monetary penalties is due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the clerk of the court. The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
0 Joint and Several
Defendant and Co-Defendant Names and. Case Numbers {including defendant number), Total Amount, Joint and Several Amount, and corresponding payee, if appropriate.
D The defendant shall pay the cost of prosecution. D The defendant shall pay the following court cost(s): D The d~fendant shall forfeit the defendant's interest in the following property to the United States:
Pa}'!!lents shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (SJ fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost ofprosecution and court costs.

Exhibit T page 113

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 114 of 229 Page ID #:1023

U.S. Department of Justice Federal Bureau of Prisons

PROGRAM STATEMENT

OPI:

OGC/LIT

NUMBER: 1330.18

DATE:

January 6, 2014

Administrative Remedy Program

/s/ Approved: Charles E. Samuels, Jr. Director, Federal Bureau of Prisons
1. PURPOSE AND SCOPE §542.10
a. Purpose. The purpose of the Administrative Remedy Program is to allow an inmate to seek formal review of an issue relating to any aspect of his/her own confinement. An inmate may not submit a Request or Appeal on behalf of another inmate.
Inmates seeking a formal review of issues relating to sexual abuse should use the regulations promulgated by the Department of Justice under the Prison Rape Elimination Act, 42 U.S.C. § 15606, et seq. These procedures are provided in Section 16 of this Program Statement.
b. Scope. This Program applies to all inmates in institutions operated by the Bureau of Prisons, to inmates designated to contract Community Corrections Centers (CCCs) under Bureau of Prisons responsibility, and to former inmates for issues that arose during their confinement. This Program does not apply to inmates confined in other non-federal facilities.
The president of a recognized inmate organization may submit a request on behalf of that organization regarding an issue that specifically affects that organization.
c. Statutorily-mandated Procedures. There are statutorily-mandated procedures in place for Tort claims (28 CFR 543, subpart C), Inmate Accident Compensation claims (28 CFR 301), and Freedom of Information Act or Privacy Act requests (28 CFR 513, subpart D). If an inmate raises an issue in a request or appeal that cannot be resolved through the Administrative Remedy Program, the Bureau will refer the inmate to the appropriate statutorily-mandated procedures.
Federal Regulations from 28 CFR are shown in this type. Implementing instructions are shown in this type.

Exhibit U page 114

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 115 of 229 Page ID #:1024

2. PROGRAM OBJECTIVES. The expected results of this program are:

■ A procedure will be available by which inmates will be able to have any issue related to their incarceration formally reviewed by high-level Bureau officials.
■ Each request, including appeals, will be responded to within the time frames allowed. ■ A record of Inmate Administrative Remedy Requests and Appeals will be maintained. ■ Bureau policies will be more correctly interpreted and applied by staff.

3. DIRECTIVES AFFECTED

a. Directive Rescinded

P1330.17 Administrative Remedy Program (8/20/2012)

b. Directives Referenced

P1320.06 P4500.08 P5212.07 P5214.04
P5264.08 P5270.09 P5324.11 P5890.13

Federal Tort Claims Act (8/1/03) Trust Fund/Deposit Fund Manual (5/4/12) Control Unit Programs (2/20/01) HIV Positive Inmates Who Pose Danger to Other, Procedures for Handling of (2/4/98) Inmate Telephone Regulations (1/24/08) Inmate Discipline Program (7/8/11) Sexually Abusive Behavior Prevention and Intervention Program (12/31/13) SENTRY - National On-Line Automated Information System (12/14/99)

28 CFR 301 Inmate Accident Compensation 28 CFR 16.10 Fees (for records requested pursuant to the Freedom of Information Act (FOIA))

c. Rules cited in this Program Statement are contained in 28 CFR 542.10 through 542.19; and 28 CFR Part 115 – Prison Rape Elimination Act National Standards

4. STANDARDS REFERENCED
■ American Correctional Association 3rd Edition Standards for Adult Correctional Institutions: 3-4236 and 3-4271
■ American Correctional Association 3rd Edition Standards for Adult Local Detention Facilities: 3-ALDF-3C-22, and 3-ALDF-3E-11 5.
5. RESPONSIBILITY §542.11
a. The Community Corrections Manager (CCM), Warden, Regional Director, and General Counsel are responsible for the implementation and operation of the Administrative Remedy Program at the Community Corrections Center (CCC), institution, regional and Central Office levels, respectively, and shall:
(1) Establish procedures for receiving, recording, reviewing, investigating and responding to Administrative Remedy Requests (Requests) or Appeals (Appeals) submitted by an inmate;

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Exhibit U page 115

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 116 of 229 Page ID #:1025
See Section 13 for further information on remedy processing, including use of SENTRY.
(2) Acknowledge receipt of a Request or Appeal by returning a receipt to the inmate;
The receipt is generated via SENTRY.
(3) Conduct an investigation into each Request or Appeal;
(4) Respond to and sign all Requests or Appeals filed at their levels. At the regional level, signatory authority may be delegated to the Deputy Regional Director. At the Central Office level, signatory authority may be delegated to the National Inmate Appeals Administrator. Signatory authority extends to staff designated as acting in the capacities specified in this §542.11, but may not be further delegated without the written approval of the General Counsel.
§ 542.11 refers to Section 5 of this Program Statement.
For purposes of this Program Statement, the term “institution” includes Community Corrections Centers (CCCs); the term “Warden” includes Camp Superintendents and Community Corrections Managers (CCMs) for Requests filed by CCC inmates; and the term “inmate” includes a former inmate who is entitled to use this program.
(5) The Warden shall appoint one staff member, ordinarily above the department head level, as the Administrative Remedy Coordinator (Coordinator) and one person to serve as Administrative Remedy Clerk (Clerk). The Regional Director and the National Inmate Appeals Administrator, Office of General Counsel, shall be advised of these appointees and any subsequent changes.
To coordinate the regional office program, each Regional Director shall also appoint an Administrative Remedy Coordinator of at least the Regional Administrator level, ordinarily the Regional Counsel, and an Administrative Remedy Clerk. The National Inmate Appeals Administrator, Office of General Counsel, shall be advised of these appointees and any subsequent changes.
(6) The Administrative Remedy Coordinator shall monitor the program’s operation at the Coordinator’s location and shall ensure that appropriate staff (e,g., Clerk, unit staff) have the knowledge needed to operate the procedure. The Coordinator is responsible for signing any rejection notices and ensuring the accuracy of SENTRY entries; e.g., abstracts, subject codes, status codes, and dates. The Coordinator also shall serve as the primary point of contact for the Warden or Regional Director in discussions of Administrative Remedies appealed to higher levels.
(7) The Administrative Remedy Clerk shall be responsible for all clerical processing of Administrative Remedies, for accurately maintaining the SENTRY index, and for generating SENTRY inmate notices.
(8) The Unit Manager is responsible for ensuring that inmate notices (receipts, extension notices, and receipt disregard notices from institutions, regions and the Central Office) are printed and delivered daily for inmates in their units and for deleting those notices from

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Exhibit U page 116

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 117 of 229 Page ID #:1026
SENTRY promptly after delivery to the inmate. CCMs are responsible for this function for inmates under their supervision.
b. Inmates have the responsibility to use this Program in good faith and in an honest and straightforward manner.
6. RESERVED
7. INFORMAL RESOLUTION §542.13
a. Informal Resolution. Except as provided in §542.13(b), an inmate shall first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy. Each warden shall establish procedures to allow for the informal resolution of inmate complaints.
The Warden is responsible for ensuring that effective informal resolution procedures are in place and that good faith attempts at informal resolution are made in an orderly and timely manner by both inmates and staff. These procedures may not operate to limit inmate access to formal filing of a Request.
b. Exceptions. Inmates in CCCs are not required to attempt informal resolution. An informal resolution attempt is not required prior to submission to the regional or Central Office as provided for in §542.14(d) of this part. An informal resolution attempt may be waived in individual cases at the Warden or institution Administrative Remedy Coordinator’s discretion when the inmate demonstrates an acceptable reason for bypassing informal resolution.
For example, the Warden may waive informal resolution for Unit Discipline Committee (UDC) appeals, or when informal resolution is deemed inappropriate due to the issue's sensitivity.
Although not mandatory, inmates may attempt informal resolution of DHO decisions. See the Program Statement Inmate Discipline Program.
8. INITIAL FILING §542.14
a. Submission. The deadline for completion of informal resolution and submission of a formal written Administrative Remedy Request, on the appropriate form (BP-9), is 20 calendar days following the date on which the basis for the Request occurred.
In accord with the settlement in Washington v. Reno, and for such period of time as this settlement remains in effect, the deadline for completing informal resolution and submitting a formal written Administrative Remedy Request, on the appropriate form (BP-9) (BP-229), for a disputed telephone charge, credit, or telephone service problem for which the inmate requests reimbursement to his/her telephone account, is 120 days from the date of the disputed telephone charge, credit, or telephone service problem.
Administrative Remedy Requests concerning telephone issues that do not involve billing disputes or requests for refunds for telephone service problems (such as Administrative Remedy

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Exhibit U page 117

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 118 of 229 Page ID #:1027
Requests concerning telephone privileges, telephone lists, or telephone access) are governed by the 20-day filing deadline.
b. Extension. Where the inmate demonstrates a valid reason for delay, an extension in filing time may be allowed. In general, valid reason for delay means a situation which prevented the inmate from submitting the request within the established time frame. Valid reasons for delay include the following: an extended period in-transit during which the inmate was separated from documents needed to prepare the Request or Appeal; an extended period of time during which the inmate was physically incapable of preparing a Request or Appeal; an unusually long period taken for informal resolution attempts; indication by an inmate, verified by staff, that a response to the inmate’s request for copies of dispositions requested under §542.19 of this part was delayed.
Ordinarily, the inmate should submit written verification from staff for any claimed reason for delay.
If an inmate requests an Administrative Remedy form but has not attempted informal resolution, staff should counsel the inmate that informal resolution is ordinarily required. If the inmate nevertheless refuses to present a request informally, staff should provide the form for a formal Request. Upon receipt of the inmate’s submission, the Coordinator shall accept the Request if, in the Coordinator's discretion, informal resolution was bypassed for valid reasons, or may reject it if there are no valid reasons for bypassing informal resolution.
c. Form
(1) The inmate shall obtain the appropriate form from CCC staff or institution staff (ordinarily, the correctional counselor).
The following forms are appropriate:
■ Request for Administrative Remedy, Form BP-9 (BP-229), is appropriate for filing at the institution.
■ Regional Administrative Remedy Appeal, Form BP-10 (BP-230), is appropriate for submitting an appeal to the regional office.
■ Central Office Administrative Remedy Appeal, Form BP-11 (BP-231), is appropriate for submitting an appeal to the Central Office.
(2) The inmate shall place a single complaint or a reasonable number of closely related issues on the form. If the inmate includes on a single form multiple unrelated issues, the submission shall be rejected and returned without response, and the inmate shall be advised to use a separate form for each unrelated issue. For DHO and UDC appeals, each separate incident report number must be appealed on a separate form.
Placing a single issue or closely related issues on a single form facilitates indexing, and promotes efficient, timely and comprehensive attention to the issues raised.

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Exhibit U page 118

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 119 of 229 Page ID #:1028
(3) The inmate shall complete the form with all requested identifying information and shall state the complaint in the space provided on the form. If more space is needed, the inmate may use up to one letter-size (8 1/2" by 11") continuation page.
The inmate must provide an additional copy of any continuation page. The inmate must submit one copy of supporting exhibits. Exhibits will not be returned with the response. Because copies of exhibits must be filed for any appeal (see § 542.15 (b) (3)), the inmate is encouraged to retain a copy of all exhibits for his or her personal records.
(4) The inmate shall date and sign the Request and submit it to the institution staff member designated to receive such Requests (ordinarily a correctional counselor). CCC inmates may mail their Requests to the CCM.
d. Exceptions to Initial Filing at Institution
(1) Sensitive Issues. If the inmate reasonably believes the issue is sensitive and the inmate’s safety or well-being would be placed in danger if the Request became known at the institution, the inmate may submit the Request directly to the appropriate Regional Director. The inmate shall clearly mark “Sensitive” upon the Request and explain, in writing, the reason for not submitting the Request at the institution. If the Regional Administrative Remedy Coordinator agrees that the Request is sensitive, the Request shall be accepted. Otherwise, the Request will not be accepted, and the inmate shall be advised in writing of that determination, without a return of the Request. The inmate may pursue the matter by submitting an Administrative Remedy Request locally to the Warden. The Warden shall allow a reasonable extension of time for such a resubmission.
(2) DHO Appeals. DHO appeals shall be submitted initially to the Regional Director for the region where the inmate is currently located.
See the Program Statement Inmate Discipline Program.
(3) Control Unit Appeals. Appeals related to Executive Panel Reviews of Control Unit placement shall be submitted directly to the General Counsel.
See the Program Statement Control Unit Programs.
(4) Controlled Housing Status Appeals. Appeals related to the Regional Director’s review of controlled housing status placement may be filed directly with the General Counsel.
See the Program Statement Procedures for Handling HIV Positive Inmates Who Pose Danger to Other.
9. APPEALS § 542.15
a. Submission. An inmate who is not satisfied with the Warden’s response may submit an Appeal on the appropriate form (BP-10) to the appropriate Regional

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Exhibit U page 119

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 120 of 229 Page ID #:1029
Director within 20 calendar days of the date the Warden signed the response. An inmate who is not satisfied with the Regional Director’s response may submit an Appeal on the appropriate form (BP-11) to the General Counsel within 30 calendar days of the date the Regional Director signed the response. When the inmate demonstrates a valid reason for delay, these time limits may be extended. Valid reasons for delay include those situations described in §542.14(b) of this part. Appeal to the General Counsel is the final administrative appeal.
These deadlines specify the date of the Appeal’s receipt in the regional office or the Central Office. The deadlines have been made deliberately long to allow sufficient mail time. Inmates should mail their Appeals promptly after receiving a response to ensure timely receipt. Ordinarily, the inmate must submit written verification from institution staff for any reason for delay that cannot be verified through SENTRY.
In many cases, courts require a proper Appeal to the General Counsel before an inmate may pursue the complaint in court.
b. Form
(1) Appeals to the Regional Director shall be submitted on the form designed for regional Appeals (BP-10) and accompanied by one complete copy or duplicate original of the institution Request and response. Appeals to the General Counsel shall be submitted on the form designed for Central Office Appeals (BP-11) and accompanied by one complete copy or duplicate original of the institution and regional filings and their responses. Appeals shall state specifically the reason for appeal.
(2) An inmate may not raise in an Appeal issues not raised in the lower level filings. An inmate may not combine Appeals of separate lower level responses (different case numbers) into a single Appeal.
(3) An inmate shall complete the appropriate form with all requested identifying information and shall state the reasons for the Appeal in the space provided on the form. If more space is needed, the inmate may use up to one letter-size (8 1/2" x 11") continuation page. The inmate shall provide two additional copies of any continuation page and exhibits with the regional Appeal, and three additional copies with an Appeal to the Central Office (the inmate is also to provide copies of exhibits used at the prior level(s) of appeal). The inmate shall date and sign the Appeal and mail it to the appropriate Regional Director, if a Regional Appeal, or to the National Inmate Appeals Administrator, Office of General Counsel, if a Central Office Appeal (see 28 CFR part 503 for addresses of the Central Office and Regional Offices).
c. Processing. The appropriate regional office to process the Appeal is the regional office for the institution where the inmate is confined at the time of mailing the Appeal, regardless of the institution that responded to the institution filing.

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Exhibit U page 120

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 121 of 229 Page ID #:1030
10. ASSISTANCE §542.16
a. An inmate may obtain assistance from another inmate or from institution staff in preparing a Request or an Appeal. An inmate may also obtain assistance from outside sources, such as family members or attorneys. However, no person may submit a Request or Appeal on the inmate's behalf, and obtaining assistance will not be considered a valid reason for exceeding a time limit for submission unless the delay was caused by staff.
b. Wardens shall ensure that assistance is available for inmates who are illiterate, disabled, or who are not functionally literate in English. Such assistance includes provision of reasonable accommodation in order for an inmate with a disability to prepare and process a Request or an Appeal.
For example, Wardens must ensure that staff (ordinarily unit staff) provide assistance in the preparation or submission of an Administrative Remedy or an Appeal upon being contacted by such inmates that they are experiencing a problem.
11. RESUBMISSION §542.17
a. Rejections. The Coordinator at any level (CCM, institution, region, Central Office) may reject and return to the inmate without response a Request or an Appeal that is written by an inmate in a manner that is obscene or abusive, or does not meet any other requirement of this part.
b. Notice. When a submission is rejected, the inmate shall be provided a written notice, signed by the Administrative Remedy Coordinator, explaining the reason for rejection. If the defect on which the rejection is based is correctable, the notice shall inform the inmate of a reasonable time extension within which to correct the defect and resubmit the Request or Appeal.
(1) Sensitive Submissions. Submissions for inmate claims which are too sensitive to be made known at the institution are not to be returned to the inmate. Only a rejection notice will be provided to the inmate. However, other rejected submissions ordinarily will be returned to the inmate with the rejection notice.
(2) Defects. Defects such as failure to sign a submission, failure to submit the required copies of a Request, Appeal, or attachments, or failure to enclose the required single copy of lower level submissions are examples of correctable defects.
Ordinarily, five calendar days from the date of the notice to the inmate is reasonable for resubmission at the institution level; at least 10 calendar days at the CCM or regional offices; and 15 calendar days at the Central Office.
(3) Criteria for Rejection. When deciding whether to reject a submission, Coordinators, especially at the institution level, should be flexible, keeping in mind that major purposes of this Program are to solve problems and be responsive to issues inmates raise. Thus, for example, consideration should be given to accepting a Request or Appeal that raises a sensitive or

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Exhibit U page 121

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 122 of 229 Page ID #:1031
problematic issue, such as medical treatment, sentence computation, or staff misconduct, even though that submission may be somewhat untimely.
c. Appeal of Rejections. When a Request or Appeal is rejected and the inmate is not given an opportunity to correct the defect and resubmit, the inmate may appeal the rejection, including a rejection on the basis of an exception as described in §542.14 (d), to the next appeal level. The Coordinator at that level may affirm the rejection, may direct that the submission be accepted at the lower level (either upon the inmate’s resubmission or direct return to that lower level), or may accept the submission for filing. The inmate shall be informed of the decision by delivery of either a receipt or rejection notice.
12. RESPONSE TIME §542.18
If accepted, a Request or Appeal is considered filed on the date it is logged into the Administrative Remedy Index as received. Once filed, response shall be made by the Warden or CCM within 20 calendar days; by the Regional Director within 30 calendar days; and by the General Counsel within 40 calendar days. If the Request is determined to be of an emergency nature which threatens the inmate’s immediate health or welfare, the Warden shall respond not later than the third calendar day after filing. If the time period for response to a Request or Appeal is insufficient to make an appropriate decision, the time for response may be extended once by 20 days at the institution level, 30 days at the regional level, or 20 days at the Central Office level. Staff shall inform the inmate of this extension in writing. Staff shall respond in writing to all filed Requests or Appeals. If the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.
The date a Request or an Appeal is received in the Administrative Remedy index is entered into SENTRY as the “Date Rcv”, and should be the date it is first received and date-stamped in the Administrative Remedy Clerk’s office. Notice of extension ordinarily is made via SENTRY notice.
13. REMEDY PROCESSING
a. Receipt. Upon receiving a Request or Appeal, the Administrative Remedy Clerk shall stamp the form with the date received, log it into the SENTRY index as received on that date, and write the “Remedy ID” as assigned by SENTRY on the form. Once a submission is entered into the system, any subsequent submissions or appeals of that case shall be entered into SENTRY using the same Case Number. The “Case Number” is the purely numerical part of the “Remedy ID” which precedes the hyphen and “Submission ID.”
All submissions received by the Clerk, whether accepted or rejected, shall be entered into SENTRY in accordance with the SENTRY Administrative Remedy Technical Reference Manual.
Sensitive issues, when the inmate claims that his or her safety or well-being would be placed in danger if it became known at the institution that the inmate was pursuing the issue, should be

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withheld from logging in until answered and/or should be logged into SENTRY with sufficient vagueness as to subject code and abstract to accommodate the inmate’s concerns.
A Request should be submitted and logged in at the institution where the inmate is housed at the time the inmate gives the Request to the counselor or other appropriate staff member. If the event(s) occurred at a previous institution, staff at that previous institution shall provide, promptly upon request, any investigation or other assistance needed by the institution answering the Request. If an inmate is transferred after giving the Request to a staff member, but before that Request is logged in or answered, the institution where the Request was first given to a staff member remains responsible for logging and responding to that Request.
b. Investigation and Response Preparation. The Clerk or Coordinator shall assign each filed Request or Appeal for investigation and response preparation. Matters in which specific staff involvement is alleged may not be investigated by either staff alleged to be involved or by staff under their supervision. Allegations of physical abuse by staff shall be referred to the Office of Internal Affairs (OIA) in accordance with procedures established for such referrals. Where appropriate; e.g., when OIA or another agency is assuming primary responsibility for investigating the allegations, the response to the Request or Appeal may be an interim response and need not be delayed pending the outcome of the other investigation.
Requests or Appeals shall be investigated thoroughly, and all relevant information developed in the investigation shall ordinarily be supported by written documents or notes of the investigator’s findings. Notes should be sufficiently detailed to show the name, title, and location of the information provided, the date the information was provided, and a full description of the information provided. Such documents and notes shall be retained with the case file copy. When deemed necessary in the investigator’s discretion, the investigator may request a written statement from another staff member regarding matters raised in the Request or Appeal. Requested staff shall provide such statements promptly. For a disciplinary Appeal, a complete copy of the appealed disciplinary actions record shall be maintained with the Appeal file copy.
c. Responses. Responses ordinarily shall be on the form designed for that purpose, and shall state the decision reached and the reasons for the decision. The first sentence or two of a response shall be a brief abstract of the inmate’s Request or Appeal, from which the SENTRY abstract should be drawn. This abstract should be complete, but as brief as possible. The remainder of the response should answer completely the Request or Appeal, be accurate and factual, and contain no extraneous information. The response should be written to be released to any inmate and the general public under the Freedom of Information Act (FOIA) and the Privacy Act. Inmate names shall not be used in responses, and staff and other names may not be used unless absolutely essential.
Program Statements, Operations Memoranda, regulations, and statutes shall be referred to in responses whenever applicable, including section numbers on which the response relies.
d. Response Time Limits. Responses shall be made as required in Section 12 of this Program Statement.
e. Index Completion. When a response is completed, the Clerk shall update SENTRY in accordance with the SENTRY Administrative Remedy Manual and the instructions in

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Attachment A. Particular attention should be paid to updating the status date, code, and reason, and to making any changes to the subject code and abstract indicated by the Coordinator or by the response drafter. The abstract shall be taken from the response’s first paragraph. Abbreviations may be liberally used, as long as they are easily understood, to allow as complete a description of the issue in the 50 characters allotted. For consistency, the Administrative Remedy Coordinator shall approve the closing entry, including the subject codes, status code and reason, and abstract, before the closing entry is made by the Clerk.
f. Response Distribution. For an institution response, one copy of the complete Request and response shall be maintained in the Warden’s Administrative Remedy File together with all supporting material. Three copies shall be returned to the inmate. An inmate who subsequently appeals to the regional or Central Office shall submit one copy with each appeal.
One copy of a Regional Appeal and response shall be retained at the regional office. One copy shall be sent to the Warden at the original filing location. The remaining two copies shall be returned to the inmate; one to submit in case of subsequent appeal to the Central Office, and one to retain.
One copy of a Central Office Appeal and response will be returned to the inmate. One copy will be retained in the Central Office Administrative Remedy File, one copy will be forwarded to the regional office where the Regional Appeal was answered, and one to the Warden’s Administrative Remedy File at the original filing location.
g. File Maintenance. The Warden’s Administrative Remedy File and Administrative Remedy Files at the Regional Offices and Central Office shall be maintained in a manner that assures case files are readily accessible to respond to inquiries from Federal Bureau of Prisons staff, inmates, and the public. Institutions shall file Regional and Central Office response copies with the inmate’s institution submission copy. Regional offices shall file copies of Central Office responses with the inmate’s Regional Appeal file. Each location shall maintain copies of supporting material and investigation notes with the case file.
When a Regional or Central Office Appeal was not preceded by a lower level filing, the institution and regional copies shall be filed at the institution and region having responsibility for the inmate at the time of response.
To provide information and feedback, Wardens and Regional Directors are encouraged to route response file copies from subsequent appeal levels to the Coordinator and the appropriate department head or person who investigated and drafted the response at their respective levels.
14. ACCESS TO INDEXES AND RESPONSES §542.19
Inmates and members of the public may request access to Administrative Remedy indexes and responses, for which inmate names and Register Numbers have been removed, as indicated below. Each institution shall make available its index, and the indexes of its regional office and the Central Office. Each regional office shall make available its index, the indexes of all institutions in its region, and the index of the Central Office. The Central Office shall make available its index and the indexes of all institutions and regional offices. Responses may be requested from the location where they are maintained and must be identified by

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Remedy ID number as indicated on an index. Copies of indexes or responses may be inspected during regular office hours at the locations indicated above, or may be purchased in accordance with the regular fees established for copies furnished under the Freedom of Information Act (FOIA).

At present, fees are detailed in 28 CFR § 16.10, which specifies a charge of $.10 per page duplicated and no charge for the first 100 pages. Staff shall forward funds received for purchase of index and response copies to the FOIA/Privacy Act Section, Office of General Counsel, Central Office.

Any location may produce its index or that of another location by making the appropriate entries on a SENTRY retrieval transaction, and specifying the “SAN” (sanitized) output format.

15. RECORDS MAINTENANCE AND DISPOSAL

a. Disposal Authority. The authority for Administrative Remedy records disposal is the “job number” NC1-129-83-07 provided by the National Archives.

b. Administrative Remedy Indexes. SENTRY Administrative Remedy indexes shall be maintained in computer-accessible form for 20 years, then destroyed. Pre-SENTRY indexes shall be maintained at the site of creation for 20 years, then destroyed.

c. Administrative Remedy Case Files. Administrative Remedy Case Files shall be destroyed three full years after the year in which the cases were completed (i.e., response completed). For cases submitted since implementation of the SENTRY module (July 1990), at the end of each calendar year (beginning at end of 1993), run SENTRY index retrieval transactions to identify the lowest case number for cases answered (status = cl* and status date in the appropriate range) during the calendar year ended three years previously. Cases below that number must be destroyed. Thus, cases answered in 1990 would be destroyed at the end of 1993; cases answered in 1991 would be destroyed at the end of 1994, etc.

To identify the lowest case number for cases answered during a given year, it may be necessary to check indexes with “Date Received” in the year in question as well as those with “Date Received” in the previous year.

Cases maintained under the pre-SENTRY numbering and filing system should be destroyed according to the following schedule:

YEAR OF CASE #

DESTROY AT END OF

16. ADMINISTRATIVE REMEDY PROCEDURES UNDER THE PRISON RAPE ELIMINATION ACT (PREA)
Title 42 U.S.C. §15607 (a) required the Attorney General to publish a final rule adopting national standards for the detection, prevention, reduction, and punishment of prison rape. Title 42 USC § 15607(b) states that the national standards shall apply immediately to the Federal Bureau of Prisons upon adoption of the final rule. The final rule is published in Title 28 C.F.R. Part 115. This section only addresses administrative remedy procedures in relation to issues of sexual

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abuse, and shall not constitute the sole response of the agency to allegations of sexual abuse. Appropriate steps to address the safety and security of inmates shall be made in accordance with the other provisions of the PREA regulations, and the Program Statement Sexually Abusive Behavior Prevention and Intervention Program.
§115.52 Exhaustion of administrative remedies.
(a) An agency shall be exempt from this standard if it does not have administrative procedures to address inmate grievances regarding sexual abuse.
The Federal Bureau of Prisons has an administrative remedy system, and therefore section 115.52 (a) does not apply. The following sections, 115.52 (b) through 115.52 (g), apply to inmates seeking a formal review of issues relating to sexual abuse. For any issue not specified in sections 115.52 (b) through 115.52 (g) below, the administrative remedy system outlined in Sections 1 through 15 of this Program Statement applies.
(b)(1) The agency shall not impose a time limit on when an inmate may submit a grievance regarding an allegation of sexual abuse.
“Sexual abuse” is defined for the purposes of this section in 28 C.F.R. § 115.6, as referenced in the Bureau’s policy on Sexually Abusive Behavior Prevention and Intervention Program.
Administrative remedies regarding allegations of sexual abuse may be filed at any time. For all other issues, the 20 calendar day period specified in Section 8 of this Program Statement shall be followed. Accordingly, administrative remedies regarding an allegation of sexual abuse shall not be rejected as untimely under Section 11 of this Program Statement, above.
Once filed, the inmate should follow the time requirements for appeal, as stated in Section 9 of this Program Statement, above.
(2) The agency may apply otherwise-applicable time limits on any portion of a grievance that does not allege an incident of sexual abuse.
If the inmate includes on a single form multiple unrelated issues, the portion of the administrative remedy regarding allegations of sexual abuse should be accepted and processed. The inmate shall be advised to use a separate form for each unrelated issue.
(3) The agency shall not require an inmate to use any informal grievance process, or to otherwise attempt to resolve with staff, an alleged incident of sexual abuse.
Inmates are not required to attempt informal resolution under Section 7 of this Program Statement, above, regarding allegations of sexual abuse.
(4) Nothing in this section shall restrict the agency’s ability to defend against an inmate lawsuit on the ground that the applicable statute of limitations has expired.

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(c) The agency shall ensure that
(1) an inmate who alleges sexual abuse may submit a grievance without submitting it to a staff member who is the subject of the complaint, and
(2) such grievance is not referred to a staff member who is the subject of the complaint.
Matters in which specific staff involvement is alleged may not be investigated by either staff alleged to be involved or by staff under their supervision. Allegations of physical abuse by staff shall be referred to the Office of Internal Affairs (OIA) in accordance with procedures established for such referrals. Where appropriate, e.g., when OIA or another agency is assuming primary responsibility for investigating the allegations, the response to the Request or Appeal may be an interim response and need not be delayed pending the outcome of the other investigation.
(d)(1) The agency shall issue a final agency decision on the merits of any portion of a grievance alleging sexual abuse within 90 days of the initial filing of the grievance.
(2) Computation of the 90-day time period shall not include time consumed by inmates during the course of an administrative appeal.
(3) The agency may claim an extension of time to respond, of up to 70 days, if the normal time period for response is insufficient to make an appropriate decision. The agency shall notify the inmate in writing of any such extension and provide a date by which a decision will be made.
(4) At any level of the administrative process, including the final level, if the inmate does not receive a response within the time allotted for reply, including any properly-noticed extension, the inmate may consider the absence of a response to be a denial at that level.
Time frames in this section are consistent with Section 12 of this Program Statement, above.
(e)(1) Third parties, including fellow inmates, staff members, family members, attorneys, and outside advocates, shall be permitted to assist inmates in filing requests for administrative remedies relating to allegations of sexual abuse, and shall also be permitted to file such requests on behalf of inmates.
(2) If a third party files such a request on behalf of an inmate, the facility may require as a condition of processing the request that the alleged victim agree to have the request filed on his or her behalf, and may also require the alleged victim to personally pursue any subsequent steps in the administrative remedy process.
(3) If the inmate declines to have the request processed on his or her behalf, the agency shall document the inmate’s decision.

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This section is applicable only to allegations of sexual abuse; inmates must personally file administrative remedies relating to other issues.
The inmate’s approval of the remedy filed on his or her behalf shall be documented, and include the inmate’s signature. An inmate’s decision to decline to have the remedy processed on his or her behalf should also be documented, and include the inmate’s signature. The documentation should be retained in the agency Administrative Remedy File at the appropriate level and on Sentry in accordance with Section 13 of this Program Statement.
Responses to third party remedies should be provided to the inmate who is the subject of the remedy.
An inmate is required to personally file any subsequent appeal. However, the inmate may receive assistance in preparing the appeal in accordance with Section 10 of this Program Statement, above.
(f)(1) The agency shall establish procedures for the filing of an emergency grievance where an inmate is subject to a substantial risk of imminent sexual abuse.
This section applies when an administrative remedy alleges a substantial risk of imminent sexual abuse. If a remedy meets both of these criteria, the remedy will receive expedited processing, as described below.
Section 12 of this Program Statement provides for an “emergency” administrative remedy as required by section 115.52(f). An expedited BP-9 (BP-229) response shall be provided if a remedy is determined to be of an emergency nature which threatens the inmate's immediate health or welfare. See 28 C.F.R. § 542.18.
The inmate shall clearly mark “Emergency” on the BP-9 (BP-229), and explain, in writing, the reason for filing as an emergency administrative remedy under this section.
If an inmate files an emergency administrative remedy with the Warden, the local Administrative Remedy Coordinator shall make a determination as to whether the remedy alleges a substantial risk of imminent sexual abuse. If the local Administrative Remedy Coordinator agrees that the administrative remedy meets the criteria for an emergency administrative remedy, the request shall be accepted, and receive expedited processing as stated below.
If the remedy is rejected for failing to meet the criteria of an emergency grievance under this section, a rejection notice will be provided to the inmate, and the remedy will be processed in accordance with the usual time frames indicated above.
(2) After receiving an emergency grievance alleging an inmate is subject to a substantial risk of imminent sexual abuse, the agency shall immediately forward the grievance (or any portion thereof that alleges the substantial risk of imminent sexual abuse) to a level of review at which immediate corrective action may be taken, shall provide an initial response within 48 hours, and shall issue a final agency decision within five calendar days. The initial response and final agency decision shall document the agency’s determination whether the inmate is in

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substantial risk of imminent sexual abuse and the action taken in response to the emergency grievance.
If an inmate files the emergency grievance with the institution under Section 12 of this Program Statement, above, alleging a substantial risk of imminent sexual abuse, an expedited BP-9 (BP229) response shall be provided within 48 hours. Best efforts to provide BP-10 (BP-230) and BP-11 (BP-231) responses within five calendar days should also be made in accordance with the provisions on exhaustion referenced above. If the inmate does not receive a response within the time allotted for reply, the inmate may consider the absence of a response to be a denial at that level.
Inmates may also file “sensitive” administrative remedies under Section 8 of this Program Statement, above, regarding allegations of sexual abuse. If an inmate reasonably believes the issue is sensitive and the inmate’s safety or well-being would be placed in danger if the remedy became known at the institution, the inmate may submit the remedy directly to the appropriate Regional Director. See 28 C.F.R. § 542.14 (d) (1). “Sensitive” grievances should be processed in accordance with Section 8 and Section 11 of this Program Statement, and the expedited response times specified in this section do not apply.
(g) The agency may discipline an inmate for filing a grievance related to alleged sexual abuse only where the agency demonstrates that the inmate filed the grievance in bad faith.
The maintenance of an effective sexual abuse prevention policy, and general secure and orderly running of an institution, requires that inmates be held responsible for manipulative behavior and false allegations. Allegations of false reports will be considered by staff in accordance with the procedures and standards of the Inmate Discipline Program policy.
17. INSTITUTION SUPPLEMENT
Each Warden shall forward a copy of any Institution Supplement developed to implement this Program Statement to the Regional Administrative Remedy Coordinator and to the National Inmate Appeals Administrator in the Central Office.
Records Retention Requirements
Requirements and retention guidance for records and information applicable to this program are available in the Records and Information Disposition Schedule (RIDS) on Sallyport.

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Exhibit U page 129

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 130 of 229 Page ID #:1039

Correctional Programs Division
MEMORANDUME FOR CHIEF EXECUTIVE OFFICERS

U.S. Department of Justice Memorandum Federal Bureau of Prisons
Central Office 320 First Stree~ N.W. Washington, DC 20534
May 8, 2020

FROM:

And

t.ellousian, Acting Assistant Director

Correctional Programs Division

HUGH HURWITZ Digitally signed by HUGH HURWITZ Date: 2020.05.08 15:57:01 -04'00'
Hugh J. Hur witz, Assistant Director Reentry Ser vices Division

SUBJECT:

Home Confinement

In our continued effort to protect the health and safety o f staff and inmates during the COVID-19 pandemic, it is imperative to review at-risk inmates for placement on home confinement. This memorandum provides updated guidance and direction and rescinds the memorandum dated April 22, 2020.

In accordance with the March 26, 2020, Memorandum, and to ensure the BOP is deploying its limited resources in the most effective manner , the following factors must be assessed to ensure inmates are suitable for home conf inement :

• Rev iewing the inmate's institutional discipline h isto ry f or the last twelve months (Inmates who have received a 300 or 400 series incident report in the past 12 months may be referred for placement on Home Confinement, if in the Warden's judgement such placement does not create an undue risk to the community . )
• Ensuring the inmate has a verifiable release plan; • Verifying the inmate's primary offense is not violent, a
sex offense, or terrorism related; • Confirming the inmate does not have a current detainer.

Exhibit V page 130

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• Priority should be given to inmates residing i n Low and Minimum security facilities;
• Inmates who have anything above a Minimum score not receiving priority t reatment;
• And the age and vulnerability of the inmate to COVID-19, in accordance with the CDC guidelines
Home Conf inement is generally prioritized for those inmates who have served a certain portion of their sentence, or who only have a relatively short amount o f time remaining on their sentence . While these priority factors are subj ect to deviati on in certain circumstances and are subject to revision as the situation progresses, we are currently priori tizing for consideration those i nmates who either:
• have served 50% or more of their sentence, • or have 18 months or less remaining on their sentence and
have served 25% or more of their sentence.
If the Warden determines there is a need to refer an inmate for placement in the community due to COVID- 1 9 risk factors who is outside of the criteria listed above. Then, the Warden should forward the Home Confinement referral to the Correctional Programs Division i n Central Office for further review.
All inmates must be reviewed by the SIS Department at the referring facility to determine if the inmate has engaged in violent or gang-related activity in prison. I nmates who have received a 300 or 400 series incident report in the past 12 months may be referred for placement on Home Confinement.
Referrals must be made based on appropriateness for home confinement . Conside ration should be given to whether the inmate has a v erifiable reentry plan, which will prevent recidivism and maximize public safety; including verification, the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID - 19.
All referrals should clearly document the review of the following :
• Specific type of release residence (House/Apt/Group home etc . ),
• Who inmate wi ll be living with, • Any health concerns of individuals in the residence, • Contact phone numbers of the inmat e should he/she be placed
on Home Confinement,
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Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 132 of 229 Page ID #:1041
, Transportation plan as to how the inmate will be t r a nsferred to the Home Confinement l ocat i on .
All the above information must be documented on the referral for Home Confin ement pri or to submission to the RRM Office.
Inmates will b e screened by Hea l t h Se rvices to determi ne if the inmate requi res frequen t and on- going medical care withi n the next 90 days , if f requent a nd on-goi ng medical care is r equir ed t hen:
• He alth Servi ces staff will coor dinate wi th Naphcare and RRMBs Heal th Servi ces Speci a li sts to d e termine i f the inmates' med ica l needs can be met i n the community at this time . Naphcar e will set up follow up care prior to t r ansfer . The inmate must trans fer wit h AT LEAST 90 days of any prescri bed medications.
• I f inmates' medical needs cannot be met in the community, then t h e inmate will remain at BOP Facility .
• If inmat e s do not require frequent and on-going medical care t hen the referral wi ll be processed .
• All t he above information must be c l early document ed on t he referral for Home Confinement prior to submission to the RRM Office .
• Medical staff must add COVID specific risk factors to the medical (BEMR) exit summary .
Pregnant inmates should be considered for viability of placement in a community program to include Mothers and Infants Together (MINT) programs and Home Confinement.
If an inmate is referr ed for home confinement due to the COVID-
19 pandemic, the Case Management Activi ty (CMA) assignment cv-
COM-REF s h oul d be l oaded.
Case Management Coordinators must track all inmates determined to be ine l igible for Home Confinement or the Elderly Offender Pi l ot Program and enter the appropriate denial code in SENTRY . Reports outlining the reason for denial must be reported to BOP CPD/Unit Management on a weekly basis by Monday at 2pm EST.
If you have any questions, please contact David Brewer, Acting Senior Deputy Assistant Director, Correctional Programs Division .
Exhibit V page 132

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 133 of 229 Page ID #:1042

Correctional Programs Division
MEMORANDUM FOR CHIEF E~

U.S. Department of Justice Memorandum Federal Bureau of Prisons
Central Office 320 First Stree~ N.W. Washington, DC 20S34
April 22, 2020

FROM :

~'ta,~~.u.s~an, Acting Assistant Director Correctional Programs Division
Digitally signed by HUGH
HUGH HURWITZ HURWITZ Date: 2020.04.22 14:17:15 -04'00'
Hugh J . Hurwitz, Assistant Director Reentry Services Division

SUBJECT :

Home Confinement

In an effort to protect the health and safety of staff and inmates during the COVID- 19 pandemic , it has become imperative to review at- risk inmates for placement on home confinement. This memorandum provides additional guidance and direction and rescinds the memorandum dated April 3, 2020 .

It should be noted that for public safety reasons , in accordance with the March 26 , 2020, memorandum from the Attorney General, and to ensure BOP is deploying its limited resources in the most effective manner , the BOP is currently assessing the following factors to ensure inmates are suitable for home confinement :

• reviewi ng the i nmate ' s instituti onal discipline history for the last twelve months;
• ensuring the inmate has a verifiable release plan;
• verifying the inmate ' s primary or prior offense history does not include violence, a sex offense, or terrorism related;
• confirming the inmate does not have a current detainer;
• reviewing the security level of the facility currently housing the inmate , with priority given to inmates residing in Low and Minimum security facilities;
• reviewing the inmate ' s score under PATTERN, with inmates who have anything above a minimum score not receiving priority treatment;

Exhibit V page 133

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 134 of 229 Page ID #:1043
• and reviewing the age and vulnerability of the inmate to COVID- 19 , in accordance with the CDC guidelines .
In addi tion, and in order to prioritize its limited resources, BOP has generally p r ioritized for home confinement those inmates who served a certain portion of their sentences , or who only have a relatively short amount of time remaining on those sentences . While these priority factors are subject to deviation in the BOP ' s discretion in ce r ta i n circumstances and are subject to revision as t he situation progresses, at this time , the BOP is prio r itizing for consideration those inmates who either:
• have served 50% or more of their sentences , • or have 18 months or less remaining on their sentences and
have served 25% or more of their sentences .
Additionally, pregnant inmates should be considered for viability of placement in a community program t o include Mothers and Infants Together (MINT) programs and home confinement.
All inmates mus t be revi ewed by the SIS Department at the referring facility to determine if the inmate has engaged in violent or gang- rel ated activity in prison. Additionally, inmates must have maintained clear conduct for the past 12 months to be eligible.
Referral s must be made based on appropriateness for home confinement . Consideration should be given to whether the inmate has demonst rated a verifiable reentry plan that will prevent recidivism and maximize public safety, including verification that the conditions which the inmate would be confined upon release would present a lower risk of contracting COVID- 19 than the inmate would face in his or her BOP facility.
All referrals should clearly document the review of the followi ng:
• Un i t Team staff will screen each inmate identified to determine if they have a viable release residence and ask questions specific to : o Specific type of release residence (House/Apt/Group home , etc . ), o Who will the inmate live with , o Any health concerns of individuals in the residence , o Contact phone numbers should he/she be placed on home confinement , o Transportation plan as to how the inmate will be transferred to the home confinement location .
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All the above info rmation must be clearly documented on the referral for home confinement prior to submission to the RRM Office.
Inmates determined to have a viable release residence will be screened by Health Services and a determination made as to if the inmate requires frequent a nd on- going medical care within the next 90 days . I f frequen t and on- going medical care is required, then:
• Heal th Services staff will coordinate with Naphcare and RRMBs Hea lth Services Specialists t o determine i f the inmate's medical needs can be met in the community at this time. Naphcare will set up follow- up care prior to the inmate ' s transfer. An inmate must transfer with AT LEAST 90 days of any prescribed medications .
• If the inmate 's medical needs cannot be met in the community at this t ime, the inmate will r emain at the BOP facility .
• If the inmate does not require frequent and on-going medical care, a referral to the community will be processed .
• All the above information mus t be clearly documented on the referral for home confinement p rior t o submission to the RRM Office .
Once an inmate is referred for home confinement due to the COVID-19 pandemic, the Case Managemen t Activi ty (CMA) assignment CV- COM-REF should be loaded in SENTRY .
If the Warden determines there is a need to r efer an inmate for placement in the community due to risk f actors, or as a populati on management strategy during the pandemic; however, the inmate does not meet the above listed criteria, a packet should be forwarded to the Correctional Programs Division for furthe r review . Packets shou ld be sent to BOP - CPD/Assistant Director from the Warden' s general mailbox .
Case Management Coordinators must track all inmates de termined to be ineligible f or home con finement or the Elderly Off ende r Pilot Program and enter the appropriate denia l code in SENTRY . Reports outlining reason for denial must be reported to BOPCPD/Unit Management on a weekly basis by Monday at 2 : 00 p .m. EST .
I f an inmate does not currentl y qualify for home confinement under BOP criteria , they shou l d be reviewed for placement in a
Exhibit V page 135

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 136 of 229 Page ID #:1045
Residential Reentry Center and for home confinement at a later date , in accordance with applicable laws and BOP pol i c i es. If you have any questions, please contact David Brewer , Acting Senior Deputy Assistant Director, Correctional Programs Division, at (202)353-3638 or Alix McLearen , Senior Deputy Assistant Director , Reentry Services Division, at (202)514-4 919.
Exhibit V page 136

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 137 of 229 Page ID #:1046

U.S. Department of Justice Federal Bureau of Prisons

PROGRAM STATEMENT

OPI:

OGC/LCI

NUMBER: P5162.05

DATE:

March 16, 2009

Categorization of Offenses

/s/ Approved: Harley G. Lappin Director, Federal Bureau of Prisons
1. PURPOSE AND SCOPE
To assist in the implementation of various Federal Bureau of Prisons policies and programs. Section 3 of this Program Statement lists offenses the Bureau categorizes as crimes of violence as that term is used in various statutes. In addition, Section 4 lists offenses that in the Director's discretion shall preclude an inmate’s receiving certain Bureau program benefits.
a. Program Objective. The expected result of this program is:
An inmate will be denied the benefits of certain programs if his or her offense is either a crime of violence or an offense identified at the discretion of the Director of the Bureau of Prisons.
b. Summary of Changes
Policy Rescinded
P5162.04 Categorization of Offenses (10/09/2007)
The March 16, 2009, reissuance of this policy updates the lists of statutory offenses. There are no other content changes.

Exhibit W page 137

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 138 of 229 Page ID #:1047
2. APPLICATION
Criminal offenses are defined in many different titles of the United States Code, including Titles 7, 16, 18, 21, 26, 29, 30, and 46. The offenses contained in these titles that may be crimes of violence are listed in Section 3. Section 4 lists offenses that are not categorized as crimes of violence, but would nevertheless preclude an inmate’s receiving certain Bureau program benefits at the Director’s discretion.
Some Bureau policies or programs require a determination that an inmate committed a crime of violence, for example, the Program Statement on Inmate Discipline and Special Housing Units. Other policies or programs, such as early release pursuant to 18 U.S.C. § 3621(e) and placement in Intensive Confinement Centers, indicate that an inmate may be denied the benefits of such programs if he or she was convicted of an offense listed in either Section 3 or 4. When an inmate may be denied a program benefit under either Section 3 or 4, staff must carefully explain the basis for the denial. For example, if an inmate is convicted of an offense listed in Section 4, the inmate should be denied a program benefit because he or she committed an offense identified at the Director’s discretion, rather than a crime of violence.
If a particular Code section in these titles is not listed in Section 3 or Section 4, and case management staff believe the crime might be violent, or might preclude an inmate’s receiving certain Bureau program benefits, they shall contact legal staff at the institution or the Regional Counsel. Also, if a Judgment and Commitment Order (J&C) references a United States Code section that is not found in Titles 7, 16, 18, 21, 26, 30, 42, or 49, they should contact legal staff at the institution or the Regional Counsel to determine whether a recommendation should be made to change the policy to incorporate the offense in question.
Some of the Code sections may be listed in more than one section below; such duplication is indicated by an asterisk. In such cases, staff are to check subsequent sections of the Program Statement to determine whether the offense is a crime of violence or an offense that would otherwise preclude an inmate’s receiving certain Bureau program benefits.
3. OFFENSES CATEGORIZED AS CRIMES OF VIOLENCE
a. Criminal Offenses That are Crimes of Violence in All Cases. Some Bureau policies or programs require a determination that an inmate committed a crime of violence, for example, the Program Statement on Inmate Discipline and Special Housing Units. Other policies or programs, such as early release pursuant to 18 U.S.C. § 3621(e), indicate that an inmate could be denied the benefits of such programs if he or she was convicted of an offense listed in either Section 3 or 4.
Any conviction for an offense listed below is categorized as a crime of violence.

P5162.05 3/16/09

Page 2
Exhibit W page 138

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 139 of 229 Page ID #:1048

(1) Title 18, United State Code Sections

Ë 32 Ë 33 Ë 34 Ë 35(b) Ë 36 Ë 37 Ë 43 Ë 81 Ë 111 Ë 112(a) Ë 113 Ë 114 Ë 115 Ë 116 Ë 117 Ë 175 Ë 229 Ë 231 Ë 245 Ë 247
Ë 248 Ë 351 Ë 373 Ë 521(c)(2) Ë 753 Ë 832
Ë 842 Ë 844 Ë 871 Ë 875 (a), (b), (c) Ë 878 Ë 879 Ë 922 (a)(2),
(a)(3),(a)(4), (a)(5),(a)(7), (a)(8),(a)(9), (b)(2),(b)(3), (b)(4),(b)(5), (c),(d)(1),

destruction of aircraft destruction of motor vehicles or motor vehicle facilities penalty when death results conveying false information that harms human life firing weapons into group of persons (VCCLEA addition) violence at international airports (VCCLEA addition) force, violence, and threats involving animal enterprises arson w/in maritime jurisdiction assaulting officers of the United States assaulting foreign officials assaults w/in maritime jurisdictions maiming w/in maritime jurisdiction threatening family member of a federal official female genital mutilation domestic assault by an habitual offender biological weapons prohibited activities (chemical weapons) civil disorders federally protected activities damage to religious property; obstruction of persons in the free exercise of religious beliefs freedom of access to clinic entrances assassination of cabinet and congress members soliciting to commit a violent act criminal street gangs rescue of an inmate to prevent execution participation in nuclear and weapons of mass destruction threats to the United States explosive materials penalties threats against the President interstate communications threats against foreign officials threats against former presidents

P5162.05 3/16/09

Page 3

Exhibit W page 139

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 140 of 229 Page ID #:1049

(d)(2),(d)(4), (d)(8),(d)(9), (g),(k),(n), (o),(p),(q)(2), (q)(3),(r), (s)(1),(t)(1), (u),(x)(1)(A), (x)(2)(A), & (z)(1) Ë 924(c) Ë 929 Ë 930(a),(b), & (c) Ë 956
Ë 970(a) Ë 1091 Ë 1111 Ë 1112 Ë 1113 Ë 1114 Ë 1116 Ë 1117 Ë 1118 Ë 1119 Ë 1120 Ë 1121 Ë 1201 Ë 1203 Ë 1204 Ë 1363 Ë 1364 Ë 1365 Ë 1366 Ë 1368 Ë 1369 Ë 1512(a) Ë 1513 Ë 1531 Ë 1581 Ë 1583 Ë 1584 Ë 1585 Ë 1587

firearm violations firearms used in violent or drug trafficking crimes use of restricted ammunition possession of firearms and dangerous weapons in Federal facilities conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country damage of property owned by foreign governments genocide murder manslaughter attempt to commit murder or manslaughter murder of officers murder of foreign officials (conspiracy to murder) murder in correctional institution (VCCLEA addition) foreign murder of US national (VCCLEA addition) murder by escaped prisoner (VCCLEA addition) murder by state or local officer (VCCLEA addition) kidnapping hostage taking international parental kidnapping buildings or property within special maritime and territorial jurisdiction interference by foreign commerce by violence tampering with consumer products except 1365(b),(c) destruction of an energy facility harming animals used in law enforcement destruction of veterans’ memorials killing witness or victim retaliation against witness or victim partial-birth abortions prohibited peonage enticement into slavery sale into servitude slave trading possession of slaves aboard a vessel

P5162.05 3/16/09

Page 4

Exhibit W page 140

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 141 of 229 Page ID #:1050

Ë 1588 Ë 1589(1) & (2) Ë 1591 Ë 1651 Ë 1652 Ë 1653 Ë 1655 Ë 1659 Ë 1661 Ë 1751 Ë 1752(a)(5) Ë 1792 Ë 1841 Ë 1855 Ë 1859 Ë 1864 Ë 1958 Ë 1959 Ë 1991 Ë 1992 Ë 2101 Ë 2111 Ë 2113(d),(e) Ë 2114 Ë 2115 Ë 2116 Ë 2118(a),(b), (c) Ë 2119 Ë 2191 Ë 2231(b) Ë 2232(a) Ë 2233 Ë 2241 Ë 2242 Ë 2243(a) Ë 2244(a)&(c) Ë 2245 Ë 2251 Ë 2251A Ë 2260(a)
Ë 2261 Ë 2261A

transporting slaves forced labor sex trafficking of children or by force, fraud, or coercion piracy citizens as pirates aliens as pirates assault on commander as pirates attack to plunder a vessel robbery ashore assassination of president or staff restricted building or grounds mutiny or riot protection of unborn children timber set afire surveys interrupted hazardous devices on federal lands use of interstate commerce in murder for hire violent crimes aiding racketeering entering train to commit crime wrecking trains riots special maritime jurisdiction bank robbery and incidental crimes assault of person carrying mail breaking into post office railway or steamboat post office robberies and burglaries involving controlled substances crimes involving motor vehicles cruelty to seamen assault or resistance destruction of property to prevent seizure rescue of seized property aggravated sexual abuse sexual abuse sexual abuse of a minor or ward abusive sexual contact sexual abuse resulting in death (VCCLEA addition) sexual exploitation of children selling or buying of children production of sexually explicit depictions of a minor for importation into the United States interstate domestic violence (VCCLEA addition) stalking

P5162.05 3/16/09

Page 5

Exhibit W page 141

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 142 of 229 Page ID #:1051

Ë 2271 Ë 2272 Ë 2273 Ë 2275 Ë 2276 Ë 2277(a) Ë 2280 Ë 2281(NOT(A)) Ë 2291(NOT
(a)(8)-(9)) Ë 2332 Ë 2332a Ë 2340A Ë 2383 Ë 2384 Ë 2385 Ë 2389 Ë 2390 Ë 2421 Ë 2422 Ë 2423

conspiracy to destroy vessels destruction of vessel by owner destruction of vessel by nonowner firing or tampering with vessels breaking and entering vessels explosives or dangerous weapons aboard vessels violence against maritime navigation (VCCLEA addition) violence against fixed platforms (VCCLEA addition)
destruction of vessel or maritime facility penalties for homicide use of weapons of mass destruction (VCCLEA addition) torture rebellion or insurrection sedition conspiracy advocating the overthrow of the government recruiting for service against U.S. enlistment to serve against U.S. transportation for illegal sexual activity coercion into interstate travel for illegal sexual activity transportation of minors for illegal sexual activity

(2) Title 21 United States Code Sections

Ë 841(e) Ë 848(e) Ë 858

boobytraps on federal property death penalty for criminal offenses endangering human life while manufacturing controlled substances

(3) Title 26 United States Code Sections

Ë 5861(a) thru (l) firearms

(4) Title 42 United States Code Sections

Ë 2000(e)(13) Ë 2283(a) Ë 2284(a) Ë 3631

killing of officer while enforcing Equal Employment Act protection of nuclear inspectors sabotage of nuclear facilities interference with housing

(5) Title 49 United States Code Sections

Ë 46502 Ë 46504

aircraft piracy interference with flight crew members

P5162.05 3/16/09

Page 6

Exhibit W page 142

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 143 of 229 Page ID #:1052

Ë 46505 Ë 46507

carrying a weapon or explosive on an aircraft false information and threats

b. * Title 18, United States Code Section 2113(a). Title 18, United States Code Section 2113(a) provides in part:

“Whoever, by force and violence, or by intimidation, takes or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; . . . shall be fined under this title or imprisoned not more than twenty years, or both.”
This statute covers various offenses, including not only bank robbery but also embezzling bank funds, stealing bank property, and bank larceny.
With regard to the specific crime of bank robbery, the offense shall be considered a crime of violence, since the offense involves an explicit or implicit threat of force and thus has as an element the threatened use of physical force against the person or property of another. For offenses pursuant to § 2113(a) other than bank robbery, see Section 4.e. below.

c. Conspiracy, Attempt, and Similar Offenses Which Involve an Underlying Offense. The statutes listed in this section cover conspiracy offenses (see, e.g., 18 U.S.C. § 371) when an individual has planned with others to commit a particular crime. Other listed statutes cover attempted offenses, i.e. when an individual tried but did not succeed in committing the crime. In reviewing these types of offenses, it is necessary to examine the “underlying offense” (what the defendant was conspiring to do or attempting to do). If the underlying offense is categorized as violent pursuant to Section 3.a. of this Program Statement, e.g., murder, then the attempt or the conspiracy offense is also violent. The underlying offense will be included in the PSI and may be noted on the J&C.
Other statutes listed in this section do not criminalize behavior but set out penalties that result from violating other statutes.

Example: 18 U.S.C. § 924(a)(1)(B) provides that whoever

“knowingly violates subsection (a)(4),(f),(k),(r),(v), or (w) of section 922 . . . shall be fined under this title, imprisoned not more than five years, or both.”

The J&C may indicate the sentence was imposed pursuant to the penalty provisions of § 924(a)(1)(B) without indicating the conviction for the underlying offense. The PSI, however, notes the underlying conviction, “Transporting a Destructive Device in Interstate Commerce” [18 U.S.C. § 922(a)(4)]. In order to determine whether the offender’s current offense is violent, staff should assess whether the underlying offense is violent in accordance with Section 3.a. of

P5162.05 3/16/09

Page 7

Exhibit W page 143

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 144 of 229 Page ID #:1053

this Program Statement; if the underlying offense is violent, then the offender should be deemed violent.

The following offenses may be violent depending on the underlying offense.

Title 18, United States Code Sections

Ë *241 Ë *371 Ë *372 Ë *924 Ë *1962 Ë *2118(d)

conspiracy to deprive civil rights (if conspiracy) conspiracy to commit offense/fraud against U.S. conspiracy to impede or injure officer penalties for firearms violations racketeering robberies involving controlled substances

4. OFFENSES THAT AT THE DIRECTOR’S DISCRETION SHALL PRECLUDE AN INMATE’S RECEIVING CERTAIN BUREAU PROGRAM BENEFITS
For certain Bureau programs, such as early release pursuant to 18 U.S.C. § 3621(e) and placement in Intensive Confinement Centers, an inmate may be denied program benefits if he or she was convicted of an offense listed in either this section or Section 3. If an inmate is denied the benefit of such a program, staff must carefully describe the basis for the denial. For example, if an inmate is convicted of an offense listed in this section, the inmate shall be denied a program benefit because he or she committed an offense identified at the Director's discretion, rather than a crime of violence.

As an exercise of the discretion vested in the Director, an inmate serving a sentence for an offense that falls under the provisions described below shall be precluded from receiving certain Bureau program benefits.

Inmates whose current offense is a felony that:

# Has as an element, the actual, attempted, or threatened use of physical force against the person or property of another, or
# Involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device), or
# By its nature or conduct, presents a serious potential risk of physical force against the person or property of another, or
# By its nature or conduct involves sexual abuse offenses committed upon children.

Thus, for an inmate to receive Bureau program benefits such as those mentioned above, he or she must not be convicted of an offense listed in this section or in Section 3.

a. Criminal Offenses with an Enhanced Base Offense Level. Convictions for an offense listed below may or may not satisfy the standard listed in the introductory portion of Section 4.

P5162.05 3/16/09

Page 8

Exhibit W page 144

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 145 of 229 Page ID #:1054

At the time of sentencing, the court makes a finding of whether an offense listed below involved the use of force, and this finding is reflected in the PSI section entitled “Offense Computation,” subsection entitled “Base Offense Level.” This subsection references a particular U.S. Sentencing Guideline provision that distinguishes between violations of the particular criminal code section that are committed with and without force.

Example: Title 18 United States Code Section 241, Conspiracy Against Rights provides:

“If two or more persons conspire to injure, oppress, threaten or intimidate any person . . . in the free exercise or enjoyment of any right or privilege. . . .”
This crime may or may not be committed through the use of force or threatened use of force, since one can be oppressed through means other than force. Pursuant to U.S. Sentencing Guideline Section 2H2.1:

# If the crime involved obstructing an election or registration, and the obstruction occurred using force or threat of force against persons or property, the base offense level is 18, or
# If the obstruction occurred without the use or threatened use of force, such as forgery, fraud, theft, deceit, etc., the base offense level is 12.

If an offender was convicted of an offense listed below, case management staff must examine the base offense level to determine whether the offense would preclude the inmate from receiving certain Bureau program benefits. If the PSI does not include an explanation as to the reason for assigning a particular base offense level, case management staff may need to examine the particular Sentencing Guideline referenced.

Some of the offenses listed below may correspond to more than one Sentencing Guideline, only one of which includes a base level adjustment for the use or threatened use of force. Accordingly, it is possible that an examination of the Offense Computation section of the PSI may reveal no mention of the use or threatened use of force. When the PSI fails to explain the reason for assigning a particular base offense level, case management staff must examine the particular Sentencing Guideline referenced to determine whether the court found that the use of force was implicated in the offense.

Case management staff may contact institution legal staff or Regional Counsel if they have questions regarding this section. A list of offenses for which the Sentencing Guidelines base offense level is affected by the use or threatened use of force follows. At the Director’s discretion, inmates with such an offense shall be precluded from receiving certain Bureau program benefits.

Title 18, United States Code Sections

Ë 241 Ë 242

conspiracy against rights (for other than conspiracy) deprivation of rights under color of law

P5162.05 3/16/09

Page 9

Exhibit W page 145

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 146 of 229 Page ID #:1055

Ë 592 Ë 593 Ë 1791 Ë 1952 Ë 2231(a) Ë 2381

putting troops at polls interference by armed forces possessing contraband in prison transporting items in aid of racketeering assault on persons executing search warrant treason

b. Criminal Offenses with a Specific Offense Characteristic Enhancement. Convictions for an offense listed below, like those listed in Section 4.a., may or may not satisfy the standard listed in the introductory portion of Section 4.

At the time of sentencing, the court makes a finding of whether the offense involved the use or threatened use of force, and this finding is reflected in the PSI section entitled “Offense Computation,” subsection entitled “Specific Offense Characteristics.” This subsection references a particular U.S. Sentencing Guideline that provides for an increase in the Total Offense Level if the criminal violation was committed with force.

Example: Section 841 of Title 21, United States Code makes it a crime to manufacture, distribute, or possess with the intent to distribute drugs. Under the Sentencing Guidelines (§ 2D1.1 and § 2D1.11), the defendant could receive an increase in his or her base offense level because of a “Specific Offense Characteristic” (for example, if a dangerous weapon was possessed during commission of the offense), the court would increase the defendant’s base offense level by two levels. This particular “Specific Offense Characteristic” (possession of a dangerous weapon during the commission of a drug offense) poses a serious potential risk that force may be used against persons or property. Specifically, as noted in the U.S. Sentencing Guidelines § 2D1.1., application note 3, the enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. Accordingly, an inmate who was convicted of manufacturing drugs, (21 U.S.C. § 841) and received a two-level enhancement for possession of a firearm has been convicted of an offense that will preclude the inmate from receiving certain Bureau program benefits.

In some cases, an inmate may be convicted of an offense listed in this section as well as 18 U.S.C. § 924(c)(1), use of a firearm during a crime of violence or drug trafficking crime. According to the U.S. Sentencing Guidelines, if a defendant receives a § 924(c)(1) conviction, the court may not assess a two-level “Specific Offense Characteristic” enhancement for possession of a firearm; however, in light of the Supreme Court ruling in Bailey v. U.S., 116 S.Ct. 501 (1995), a number of § 924(c)(1) convictions have been vacated. In Bailey, the Court held that the term “use” connotes an active employment of the firearm. If any of the offenses listed in this section were accompanied by a § 924(c)(1) conviction that was subsequently vacated due to the Bailey decision, staff shall presume that the inmate would have received a two-level “Specific Offense Characteristic” enhancement for possession of a firearm unless there is a specific court order to the contrary. Thus, absent a court order specifically denying the application of a two point enhancement for possession of a firearm, the inmate will not receive certain Bureau program benefits.

P5162.05 3/16/09

Page 10

Exhibit W page 146

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 147 of 229 Page ID #:1056

Some of the offenses listed below may correspond to more than one Sentencing Guideline, only one of which includes a Specific Offense Characteristic for the use of force. Alternatively, the PSI may fail to adequately describe the Specific Offense Characteristic that underlies the increase in offense level. In either case, it is possible that an examination of the Offense Computation section of the PSI reveals no mention of the use of force. If this occurs, case management staff must examine the particular Sentencing Guideline referenced to determine whether the court found that the use of force was implicated in the offense.

Example: The PSI in the above scenario may state “SOC (specific offense characteristic) 2F1.1(4) increase 2 levels.” If the Report does not further state “since the offense involved the conscious or reckless risk of serious bodily injury, increase by two levels pursuant to 2F1.1(4),” case management staff may have to examine Guideline 2F1.1(4) to determine that the only basis for this particular increase is a finding that the offense included the risk of bodily injury.
Case management staff may contact institution legal staff or Regional Counsel if they have questions regarding this section. Below is a list of offenses for which there could be a Specific Offense Characteristic enhancement for the use of force:

(1) Title 16, United States Code Sections

Ë 773e(a)(2), (3),(4),(6) Ë 773g Ë 1857(a)(D), (E),(F),(H) Ë 1859 Ë 2435(4),(5), (6),(7) Ë 2438 Ë 3606 Ë 3637(a)(2),(3)
(4),(6),(c) Ë 5009(5),(6),
(7),(8) Ë 5010(b)

violation of Northern Pacific Halibut Act violation of Northern Pacific Halibut Act
violation of National Fishery Management Program violation of National Fishery Management Program
violation of Antarctic Marine Living Resources Convention violation of Antarctic Marine Living Resources Convention violation of North Atlantic Salmon Fishing
violation of Pacific Salmon Fishing
violation of North Pacific Anadromous Stock Convention violation of North Pacific Anadromous Stock Convention

(2) Title 18, United States Code Sections

Ë 755 Ë 757 Ë 874 Ë 894 Ë 1163

officer permitting escape procures escape for prisoner of war kickbacks from public works employees extending credit through extortionate means embezzlement/theft from Indian organizations

P5162.05 3/16/09

Page 11

Exhibit W page 147

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 148 of 229 Page ID #:1057

Ë 1503 Ë 1505 Ë 1511 Ë 1516 Ë 1517 Ë 1951 Ë 2112

influencing or injuring officer or juror obstruction of proceedings before departments or agencies obstruction of state or local law enforcement obstruction of a federal audit obstructing financial examination interference with commerce by threats/violence robbery of personal property of United States

(3) Title 21, United States Code Sections

Ë 841(NOT(e)) Ë *846

controlled substance violation attempt and conspiracy

(4) Title 26, United States Code Sections

Ë 7212 Ë 7214

attempt to interfere with revenue laws unlawful acts by employees of the IRS

(5) Title 30, United States Code Sections

1461(a)(3), (4),(5),(7) Ë 1463

resisting officers for violations under Deep Seabed Mineral Resources Act violations of Deep Seabed Mineral Resources Act

(6) Title 33, United States Code Section

Ë 1232(b)(2)

ports and waterways safety enforcement provisions

(7) Title 40, United States Code Section

Ë 193f(a)

security of Capitol grounds and buildings

(8) Title 42, United States Code Sections

Ë 1973aa Ë 1973aa-1 Ë 1973aa-1a Ë 1973aa-3 Ë 1973bb Ë 1973gg-10 Ë 2283(b) Ë 9151(2),
(3),(4),(5)

application of prohibition to other States residence requirements for voting bilingual election requirements penalty enforcement of twenty-sixth amendment criminal penalties protection of nuclear inspectors
violation of Ocean Thermal Energy Conversion Act

P5162.05 3/16/09

Page 12

Exhibit W page 148

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 149 of 229 Page ID #:1058

Ë 9152(d)

violation of Ocean Thermal Energy Conversion Act

(9) Title 46, United States Code Section

Ë 1903

manufacture, distribution, or possession with intent to manufacture controlled substances

(10) Title 49, United States Code Section

Ë 46505(b)

carrying a weapon on an aircraft

c. Criminal Offenses That May Preclude an Inmate’s Receiving Certain Bureau Program Benefits. In addition to Sections 4.a. and 4.b. above, an inmate may be precluded from receiving certain Bureau program benefits based on an offense listed in this section. For the offenses listed below, the Sentencing Guidelines may provide little insight into the court’s findings. Accordingly, rather than simply examining the base offense level or the specific offense characteristics, case managers must carefully examine the entire Offense Computation section of the PSI and, if necessary, the Offense Conduct section to determine if the offense would preclude an inmate’s receiving certain Bureau program benefits based on whether the offense satisfies the standard listed in the introductory portion of Section 4.

The following offenses may preclude an inmate’s receiving certain Bureau program benefits based on a variety of factors.

(1) Title 7, United States Code Section

Ë 473c-1

offenses in relation to sampling of cotton

(2) Title 16, United States Code Sections

Ë 5106(e)(5), (6),(7),(9), (f)(2)

violation of Atlantic Coast Fisheries Cooperative Management

(3) Title 18, United States Code Sections

Ë 700 Ë 751 Ë 752 Ë 831 Ë 876 Ë 877

desecration of the flag of the United States escape from federal prison instigating/assisting escape from federal prison prohibited acts involving nuclear materials mailing threatening communications mailing threatening communications from foreign country

P5162.05 3/16/09

Page 13
Exhibit W page 149

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 150 of 229 Page ID #:1059

Ë 922(a)(1)
Ë 1153 Ë 1512(b) Ë 1708 Ë 1792 Ë 1956 Ë 2117 Ë 2152 Ë 2153 Ë 2154 Ë 2155 Ë 2156 Ë 2192 Ë 2193 Ë 2247 Ë 2387

engage in business of importing, manufacturing, or dealing in firearms or ammunition offenses within Indian Country tampering with a witness/victim/informant theft or receipt of stolen mail mutiny and riot in prison money laundering breaking into carrier facilities destruction of submarine and torpedo works destruction of war materials production of defective war material destruction of national defense materials production of defective national defense material incitation of seamen to revolt mutiny repeat offenders activities involving armed forces

(4) Title 40, United States Code Sections

Ë 193f(a),(b)

security of Capitol grounds and buildings

d. Conspiracy, Attempt, and Other Offenses Which Involve an Underlying Offense. Some of the statutes listed in this section cover conspiracy offenses (see, e.g., 21 U.S.C. § 846) when an individual has planned with others to commit a particular crime. Other listed statutes cover attempted offenses (see, e.g., 21 U.S.C. §§ 846 and 963) when an individual tried but did not succeed in committing the crime. In reviewing these types of offenses, it is necessary to examine the “underlying offense” (what the defendant was conspiring to do or attempting to do). If the underlying offense would preclude the inmate from receiving certain Bureau program benefits based on any of the other portions of Section 4 of this policy, the conspiracy or the attempt offense shall also preclude the inmate from receiving the same benefits. The underlying offense will be included in the PSI and may be noted on the J&C.

Example: The Judgment and Commitment Order may indicate a conviction for “Attempt and Conspiracy” (21 U.S.C. § 846). The accompanying Presentence Investigation Report will reference the underlying crime, in many cases it will be “Possession with Intent to Distribute a Controlled Substance” (21 U.S.C. § 841). Staff should then review the underlying offense (in this case possession of controlled substance) to determine whether it satisfies the standard listed in the introductory portion of Section 4. As noted in the example in section b above, if the PSI indicates that the defendant received a 2-level increase for possessing a dangerous weapon, then the offense should preclude the inmate from receiving certain Bureau program benefits; if no such enhancement was given, the offense should not preclude the inmate from receiving such benefits.

P5162.05 3/16/09

Page 14

Exhibit W page 150

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 151 of 229 Page ID #:1060

(1) Title 18, United States Code Sections

Ë *241 Ë *371 Ë *372 Ë *924 Ë *1962 Ë *2118(d)

conspiracy to deprive civil rights (if conspiracy) conspiracy to commit offense/fraud against U.S. conspiracy to impede or injure officer penalties for firearms violations racketeering robberies involving controlled substances

(2) Title 21, United States Code Sections

Ë *846 Ë 848 Ë 963

attempt and conspiracy controlled substances violations as criminal enterprise conspiracy or attempt to violate controlled substance laws

e. Special Circumstances

Ë Title 18, United States Code § 922(g). All offenses under 18 U.S.C. § 922(g) shall preclude an inmate from receiving certain Bureau program benefits.

Ë *Title 18, United States Code § 2113(a). Excluding bank robbery (see Section 3.b. above), other offenses covered by 18 U.S.C. § 2113(a), (e.g., bank larceny, etc.), shall be reviewed similarly to offenses in Section 4.b. Defendants may receive a Specific Offense Characteristic enhancement that will result in an increase in the base offense level. Such enhancements provide for an increase in the defendant's base offense level if:

# A firearm was discharged, # A firearm or other dangerous weapon was brandished, displayed, possessed, or used, or # An express or implied threat of death was made (U.S.S.G. 2B3.2(b), Application Notes 2
and 6).

If a defendant received such an enhancement (or one of the other enhancements involving the use or threatened use of force), the offense shall preclude the inmate's receiving certain Bureau program benefits.

Ë Title 18, United States Code § 2243. A conviction for sexual abuse of a minor or ward shall preclude an inmate from receiving certain Bureau program benefits.

5. OFFENSES COMMITTED BEFORE NOVEMBER 1, 1987

The Sentencing Guidelines are generally not applicable for offenses committed before November 1, 1987. Accordingly, for offenses identified in Section 4 or offenses similar to those listed in Section 4 of this Program Statement that were committed before this date, case managers must

P5162.05 3/16/09

Page 15

Exhibit W page 151

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 152 of 229 Page ID #:1061
make a determination, based on the narrative description of the crime contained in the PSI, whether the offense involved:
# The use, attempted use, or threatened use of force; # The use, carrying, or possession of a dangerous weapon; # A serious potential risk that force might be used against the person or property of another; or # Sexual abuse committed upon children.
Offenses listed in Section 3, Crimes of Violence, or offenses similar to those listed in Section 3, which were committed before November 1, 1987, shall be treated in the same manner as “new law” offenses.
6. CRIMES CODIFIED PURSUANT TO THE VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994
The VCCLEA created a number of new Federal criminal offenses and enhanced penalties for several existing offenses. Some of the new offenses are included in the above lists, but the lists will be revised as needed after the U.S. Sentencing Commission drafts new guidelines. These lists will also be updated periodically to reflect statutory changes or at the Director’s discretion.
REFERENCES
Program Statements P5110.15 Notification of Release to State and Local Law Enforcement Officials (8/30/00) P5162.02 Definition of Term, Crimes of Violence (7/24/95) P5322.12 Inmate Classification and Program Review (11/29/06) P5330.11 Psychology Treatment Programs (3/16/09) P5331.02 Early Release Procedures Under 18 U.S.C. 3621 (e) (3/16/09) P5800.12 Receiving and Discharge Manual (12/31/97) P5800.15 Correctional Systems Manual (1/1/09) P5880.28 Sentence Computation Manual (CCCA of 1984) (2/21/92) P5880.30 Sentence Computation Manual (“Old Law” Pre-CCCA 1984) (7/16/93)
ACA Standards None.
Records Retention Requirements Requirements and retention guidance for records and information applicable to this program are available in the Records and Information Disposition Schedule (RIDS) on Sallyport and BOPDOCS.

P5162.05 3/16/09

Page 16
Exhibit W page 152

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 153 of 229 Page ID #:1062

nC V 2019

What you need to know about

C O R O N AV IRUS 2019 Novel Coronavirus (2019-nCoV)

What is 2019 novel coronavirus?
The 2019 novel coronavirus (2019-nCoV) is a new virus that causes respiratory illness in people and can spread from person to person. This virus was first identified during an investigation into an outbreak in Wuhan, China.
Can people in the U.S. get 2019-nCoV?
The 2019-nCoV is spreading from person to person in China and limited spread among close contacts has been detected in some countries outside China, including the United States. At this time, however, this virus is NOT currently spreading in communities in the United States. Right now, the greatest risk of infection is for people in China or people who have traveled to China. Risk of infection is dependent on exposure. Close contacts of people who are infected are at greater risk of exposure, for example health care workers and close contacts of people who are infected with 2019nCoV. CDC continues to closely monitor the situation.
Have there been cases of 2019-nCoV in the U.S.?
Yes. The first infection with 2019-nCoV in the United States was reported on January 21, 2020. The current count of cases of infection with 2019-nCoV in the United States is available on CDC’s webpage at https://www.cdc.gov/ coronavirus/2019-ncov/cases-in-us.html.
How does 2019-nCoV spread?
This virus probably originally emerged from an animal source but now seems to be spreading from person to person. It’s important to note that person-to-person spread can happen on a continuum. Some viruses are highly contagious (like measles), while other viruses are less so. At this time, it’s unclear how easily or sustainably this virus is spreading between people. Learn what is known about the spread of newly emerged coronaviruses at https://www.cdc. gov/coronavirus/2019-ncov/about/transmission.html.
What are the symptoms of 2019-nCoV?
Patients with 2019-nCoV have reportedly had mild to severe respiratory illness with symptoms of • fever • cough • shortness of breath

What are severe complications from this virus?
Many patients have pneumonia in both lungs.
How can I help protect myself?
The best way to prevent infection is to avoid being exposed to this virus.
There are simple everyday preventive actions to help prevent the spread of respiratory viruses. These include
• Avoid close contact with people who are sick. • Avoid touching your eyes, nose, and mouth with
unwashed hands. • Wash your hands often with soap and water for at least 20
seconds. Use an alcohol-based hand sanitizer that contains at least 60% alcohol if soap and water are not available.
If you are sick, to keep from spreading respiratory illness to others, you should
• Stay home when you are sick. • Cover your cough or sneeze with a tissue, then throw the
tissue in the trash. • Clean and disinfect frequently touched objects
and surfaces.
What should I do if I recently traveled to China and got sick?
If you were in China within the past 14 days and feel sick with fever, cough, or difficulty breathing, you should seek medical care. Call the office of your health care provider before you go and tell them about your travel and your symptoms. They will give you instructions on how to get care without exposing other people to your illness. While sick, avoid contact with people, don’t go out and delay any travel to reduce the possibility of spreading illness to others.
Is there a vaccine?
There is currently no vaccine to protect against 2019-nCoV. The best way to prevent infection is to avoid being exposed to this virus.
Is there a treatment?
There is no specific antiviral treatment for 2019-nCoV. People with 2019-nCov can seek medical care to help relieve symptoms.

CS 314937-A 02/05/2020

For more information: www.cdc.gov/nCoV
Exhibit X page 153

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 154 of 229 Page ID #:1063
STOP THE SPREAD OF GERMS

Help prevent the spread of respiratory diseases like COVID-19.

Avoid close contact with people who are sick.

Cover your cough or sneeze with a tissue, then throw the tissue in the trash.

Clean and disinfect frequently touched objects and surfaces.
Avoid touching your eyes, nose, and mouth.
Stay home when you are sick, except to get medical care.
Wash your hands often with soap and water for at least 20 seconds.
For more information: www.cdc.gov/COVID19
CS314915-A
Exhibit X page 154

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 155 of 229 Page ID #:1064

U.S. Department of Justice Federa l Bureau of Prisons Federal Correctional Complex
Lompoc , CA 93436
March 13 , 2020

FROM : SUBJECT :

man , Acting Complex Warden Correctional Complex , Lompoc, California
BOP Coronavirus (COVID-19) Protective Mea sures

As you may be awar e in talking to persons in the community , the United States is seeing an incr ease in the number of confirmed cases of infected persons . Effective immediately, the foll owing actions are being taken by the Burea u of Prisons (BOP) in o rde r to prevent or reduce the spread of COVID- 19 .
SCREENING OF INMATES : The BOP is screening inmate s for COVID - 19 using est ablis hed practices :
• All newly-arriving BOP inmates are screened for COVID- 19 exposure risk factors and symptoms .
• Asymptomatic inmates with exposure risk factors are being quarantined .
• Symptomatic inmates with exposure risk factors are to be isolated and tested for COVID- 19 per local health authorit y protocols
• To - date , n o inmates have tested positive for COVID-1 9 i n the BOP .
SOCIAL VISITS: Social v isi ts are suspended for 30 days , at which time the suspension will be ree v al uated .
To ensure that inmates maintain community ties , inmate telephone system minutes will be increased nationally to 500 minutes per calendar month .

Exhibit X page 155

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BOP Coronavirus (COVID-19) Protective Measures March 13, 2020 Page 2
INMATE MOVEMENT: Inmate movement between facilities is suspended for 30 days, at which time the suspension will be reevaluated. BOP will make exceptions for special cases such as writs for prosecution on pending charges, Interstate Agreements on Detainers (IAD), medical or mental health reasons, and RRC placements. The BOP will also continue to process and admit new inmates. Other case-by-case exceptions for judicial proceedings may also be made.
Local medical trips will be made, as necessary.
LEGAL VISITS: Legal visits will be suspended for 30 days, at which time the suspension will be reevaluated. Case-by-case approval at the local level and confidential legal calls will be allowed in order to ensure access to counsel.
Access to legal counsel will be accommodated to the maximum extent practicable. Although legal visits are generally suspended for 30-days, you may make a request to your Unit Team, who will forward it to the institution's Legal Department for review and final approval by the Warden. Attorneys will be screened prior to being admitted to the facility.
VOLUNTEERS: Volunteer visits will be suspended for 30 days, with limited exceptions. The suspension will be reevaluated in 30 days. Inmates who wish to speak with a religious advisor, should make a request through their Unit Team.·
MODIFIED OPERATIONS: For the next 30 days, the facility will operate on a modified basis to limit inmate group contact, as much as possible. This action is necessary to limit the transmission of the disease if anyone becomes infected. The suspension will be reevaluated in 30 days.
We appreciate your assistance and cooperation in this important matter.
Exhibit X page 156

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 157 of 229 Page ID #:1066
Stop the Spread of Germs

Help prevent the spread of respiratory diseases like COVID-19.

Avoid close contact with people who are sick.

Cover your cough or sneeze with a tissue, then throw the tissue in the trash.

Clean and disinfect frequently touched objects and surfaces.
Avoid touching your When in public, wear a cloth eyes, nose, and mouth. face covering over your
nose and mouth.
Stay home when you are sick, except to get medical care.
Wash your hands often with soap and water for at least 20 seconds.
cdc.gov/coronavirus
316351-A April 7, 2020 9:58 AM
Exhibit X page 157

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 158 of 229 Page ID #:1067
DETENGA LA PROPAGACIÓN DE LOS MICROBIOS

Ayude a prevenir la propagación de enfermedades respiratorias como el COVID-19

Evite el contacto cercano con las personas enfermas.

Cúbrase la nariz y la boca con un pañuelo desechable al toser o estornudar y luego bótelo a la basura.

Limpie y desinfecte los objetos y las super cies que se tocan frecuentemente.
Evite tocarse los ojos, la nariz y la boca.
Quédese en casa si está enfermo, excepto para buscar atención médica.
Lávese las manos frecuentemente con agua y jabón por al menos 20 segundos.
cdc.gov/COVID19-es
314915-B ﻿
Exhibit X page 158

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 159 of 229 Page ID #:1068
U.S. Department of Justice
Federal Bureau of Prisons

Office of the Director

Washington, DC 20534
April 8, 2020

MEMORANDUM FOR T~ ~I~OPULATION

FROM: SUBJECT:

M.D. ~

al, Director

COVID-19 Pandemic

I would rather be able to address you directly, however, that is not practical at this time. Instead, I am writing this letter to tell you what we are doing as an agency to safeguard your health during the COVID-19 pandemic. I want to thank each of you for your understanding and cooperation as we diligently work to try and prevent the introduction of coronavirus in our facilities and to stop the spread of it in the facilities that have already been affected. It is critically important that each and every one of us take this seriously - together we will all get through this.
Let me share some information with you and dispel any rumors you may have heard. Despite the planning and preparations that has been ongoing since January 2020, and the implementation of the first three phases of our COVID-19 Action Plan, the BOP had its first positive inmate case on March 21, 2020, and the first positive staff case the very next day. Unfortunately, I am also saddened to report, as of today, we have had eight COVID-19 inmate-related deaths. On March 26, 2020, we implemented Phase 4 requiring all individuals entering our facilities, including staff, be screened and temperature checked. This was a critical step to ensure we reduce the risk of introducing and spreading the virus inside our facilities.
The Executive Staff and I have made decisions that directly impact each of you. No decision, regardless of how large or small, is taken lightly or done without considerable thought. Stopping social visits has a major impact on you and your loved ones. But, by doing so we are keeping you, your family, and the community safe. We

Exhibit X page 159

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increased your monthly phone minutes to help compensate for the lack of visits and by Thursday, April 9, 2020, telephone calls will be free to you for the duration of this emergency (please note, however, collect calls will still be charged to the receiving phone number). We recognize how important it is for you to keep in touch with your families, especially at this time. They need to know how you are doing and you need to know how the virus is affecting them.
Access to legal counsel remains a paramount requirement but, like social visiting, the BOP is reducing the risk of exposure created by external visitors. As such, while in general, legal visits will be suspended for 30 days, case-by-case accommodation will be accomplished at the local level and confidential legal calls will be allowed in order to ensure inmates maintain access to counsel. Limiting facility-to-facil transfers, and other inmate movement, as well as implementing screening and quarantine and isolation procedures, have been essential to slowing the spread of the virus. The nationwide modified operations implemented to maximize social distancing and limit group gatherings, such as staggering meal times and recreation, have also been helpful. However, the growing number of quarantine and isolation cases in our facilities indicates we need to do more.
Accordingly, on April 1, 2020, another decision was made that directly impacts you. For a 14-day period, inmates in every institution have been secured in their assigned cells/quarters to decrease the spread of the virus. Again, we did not make this decision lightly, and I know this can be frustrating for all of you. But just like in communities nationwide who have been required to shelter in place, we feel the safest course to prevent the spread of the virus and keep you healthy is to have you shelter in place as well. After 14 days, this decision will be reevaluated and a determination will be made as to whether or not to return to modified operations.
All of our efforts are toward one goal -- keeping everyone in our prisons, both staff and inmates, safe. We are still in the early
of this virus; it is not even near the peak in the United States. With that said, I need your continued patience, understanding, and cooperation. I need you to communicate with staff openly and honestly. We need to know how you are feeling both physically by telling staff if you are feeling sick, coughing or running a fever, and mentally, if you are anxious or scared.
I am also asking that you keep yourselves and your areas as clean as possible. On April 4, 2020, the CDC issued updated guidance encouraging all persons to use masks in public, as such, masks have
Exhibit X page 160

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been issued to you. There are universal precautions that we must all follow - we are sharing many of the same areas. Please remember to always:
• Wash your hands, especially after touching any frequently used item or surface.
• Avoid touching your face. • Sneeze or cough into a tissue and wash your hands thereafter,
or use the inside of your elbow. Observe social distancing as much as practical in our environment. These are not normal times. Our world is much different than it was a month ago. We recognize this is hard on you, but remember it is equally hard on everyone. Staff are experiencing many of the same feelings as you, your family, as well as myself. I want to close by personally telling you that your cooperation has made a difference during this difficult time. Please continue to be patient and understanding. Wash your hands frequently, cover your coughs and sneezes, and avoid touching your face. Maintain an appropriate social distance as often as you can. And, equally as important, communicate with the staff about how you are feeling, ask questions, and share your concerns. This pandemic is a global emergency and the BOP is taking proactive operational measures to safeguard each of you that are entrusted to our care and custody. I am committed to doing everything I can to help keep all of you healthy and safe.
Exhibit X page 161

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 162 of 229 Page ID #:1071
U.S. Department of Justice
Federal Bureau of Prisons

Office of the Director

Washington, DC 20534
8 de abril de 2020

MEMORANDO PARA LA POBLACION CARCELARIA

DE:

r<J c':::at1, 'M..t>.
M. D.

Director

ASUNTO:

Pandemia de la COVID-19

Hubiese preferido dirigirme a ustedes de forma mas directa. Sin embargo, no es algo que podamos hacer en este momento. Asi que escribo esta carta para contarles lo que estamos hacienda como agencia para proteger su salud durante la pandemia de la COVID-19. Quisiera agradecer a cada uno de ustedes por su comprensi6n y cooperaci6n mientras trabajamos con diligencia para intentar prevenir el ingreso del coronavirus en nuestras instalaciones y para detener la propagaci6n en aquellas instalaciones que ya se han visto afectadas. Es extremadamente importante que todos nos tomemos lo que esta sucediendo con mucha seriedad. Juntos lo superaremos.

Permitanme compartirles algo de informaci6n y disipar ciertos rumores que pueden haber escuchado. A pesar de la planificaci6n y de los preparativos que hemos estado llevando a cabo desde enero de 2020 y de la implementaci6n de las tres primeras fases de nuestro Plan de Acci6n contra la COVID-19, en la Agencia de Prisiones (Bureau of Prisons, BOP) se registr6 el primer caso positivo en un reo el 21 de marzo de 2020 y el primer caso positivo en un miembro del personal al dia siguiente. Lamentablemente, me entristece anunciar que, al dia de hoy, hemos sufrido ocho muertes de reos debido a la COVID-19. El 26 de marzo de 2020 implementamos la Fase 4 del plan, que establece que se revisara y se medira la temperatura corporal de toda persona que ingrese a nuestras instalaciones, incluido el personal. Este ha sido un paso fundamental para asegurarnos de que
reduciremos el riesgo de introducir y propagar el virus dentro de
las instalaciones.

Junto con el Personal Directivo, he tornado decisiones que afectaran

'

Exhibit X page 162

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 163 of 229 Page ID #:1072
a cada uno de ustedes directamente. Todas las decisiones, pequenas o grandes, son importantes y se han tornado luego de un analisis profundo. Sabemos que la suspension de las visitas sociales los afecta tanto a ustedes como a sus seres queridos. Sin embargo, al suspenderlas, estamos preservando su seguridad, la de sus familias y la de la comunidad. Hemos aumentado la cantidad de minutos mensuales disponibles para hacer llamadas telef6nicas para compensar la suspension de las visitas y, a partir del jueves 9 de abril de 2020, se podran realizar llamadas de forma gratuita durante esta emergencia (sin embargo, las llamadas por cobrar se debitaran al titular del numero telef6nico marcado). Sabemos lo importante que es para ustedes mantenerse en contacto con sus familias, particularmente en este momento. Ellos necesitan saber c6mo estan ustedes y ustedes necesitan saber c6mo el virus los esta afectando a ellos.
El acceso a asesoria legal sigue siendo un requisito de vital importancia; sin embargo, al igual que sucede con las visitas sociales, la BOP reducira el riesgo de exposici6n que generan los visitantes externos. Si bien, en general, las visitas legales quedaran suspendidas durante 30 dias, se realizaran los ajustes necesarios caso por caso a nivel local y se permitiran las llamadas legales confidenciales para garantizar que los reos sigan accediendo al asesoramiento. La decision de limitar los traslados entre instalaciones y cualquier otro desplazamiento de reos, asi como tambien la implementaci6n de los procesos de detecci6n, cuarentena y aislamiento, han sido esenciales a la hora de disminuir la propagaci6n del virus. Tambien han sido de mucha ayuda las operaciones a nivel nacional que se modificaron para implementar el distanciamiento social y limitar la agrupaci6n de personas, que es lo que sucede con los horarios de comida y recreaci6n. Sin embargo, el numero creciente de casos de reos en cuarentena yen aislamiento dentro de nuestras instalaciones es un indicio de que debemos hacer mas.
Por lo tanto, el 1 de abril de 2020 tomamos otra decision que tambien los afectara directamente. Por un periodo de 14 dias, se ha pedido a todos los reos de cada una de las instituciones que permanecieran dentro de sus celdas/cuartos para disminuir la propagaci6n del virus. Nuevamente, no fue sencillo tomar esta decision y se que puede resultar algo frustrante para todos ustedes. Pero la realidad es que al resto de las comunidades a nivel nacional tambien se les ha pedido que se resguarden dentro del lugar en el que se encuentran, por lo que creemos que lo mas seguro para evitar la propagaci6n del virus y mantenerlos a todos a salvo es que ustedes tambien hagan lo mismo. Luego de 14 dias, volveremos a evaluar esta decision y determinaremos si se debe extender o no dicha medida.
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Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 164 of 229 Page ID #:1073
Todos nuestros esfuerzos tienen un solo objetivo: mantener a todas las personas que se encuentran dentro de nuestras prisiones a salvo, tanto a los reos como al personal. Aun nos encontramos en las primeras etapas de la lucha contra este virus, ya queen los Estados Unidos aun no estamos ni siquiera cerca del pico de la enfermedad. Habiendo dicho esto, necesitare de su paciencia, comprensi6n y cooperaci6n continuas. Necesito que se comuniquen con el personal con toda franqueza y honestidad. Necesitamos saber c6mo se sienten, tanto fisica como mentalmente. Hablen con el personal si se sienten mal, si tienen tos o fiebre o si se sienten ansiosos o asustados.
Tambien les pido que mantengan las areas que ocupan lo mas limpias posible y que se aseen con frecuencia. El 4 de abril de 2020 el CDC (Center for Disease Control, CDC) emiti6 pautas actualizadas que instan a todas las personas a usar barbijos en publico; portal motivo, les hemos suministrado barbijos a ustedes. Hay medidas de precauci6n universales que todos debemos seguir. Recuerden que compartimos muchas areas comunes. Siempre recuerden:
Lavarse las ma nos, en especial luego de tocar un obj eto o una superficie que se utilice con frecuencia. • Evitar tocarse el rostro. Estornudar o toser utilizando un pafiuelo descartable y luego lavarse bien las manos, o hacerlo sobre el pliegue del codo. • Mantener el distanciamiento social tanto como se pueda.
Son tiempos dificiles. Nuestro mundo es muy diferente a lo que era hace un mes. Sabemos que esto no es facil para ustedes, pero recuerden que es igual de dificil para todos. Tanto el personal, como yo mismo, sentimos lo mismo que ustedes y sus familias.
Quiero cerrar esta carta diciendoles que su cooperaci6n ha marcado la diferencia en este momento tan dificil. Sigan siendo pacientes y comprensivos. Laven sus manos con regularidad, cubranse cuando tosen o estornuden y eviten tocarse el rostro. Mantengan una distancia social conveniente siempre que se pueda. Recuerden que tambien es importante que le comuniquen al personal c6mo se sienten, hagan las preguntas que consideren necesarias y compartan sus preocupaciones. Esta pandemia es una emergencia global, y la BOP esta tomando medidas operativas proactivas para salvaguardar a cada uno de ustedes que estan a nuestro cuidado. Me comprometo a hacer todo lo que este en mi poder para ayudarlos a mantenerse sanos y seguros.
Exhibit X page 164

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 165 of 229 Page ID #:1074
Information for INMATES
Cloth Face Coverings
Help Slow the Spread of COVID-19
• Based on guidance from the CDC, the BOP now recommends all inmates wear cloth face coverings.
• All inmates will receive a cloth face covering. • This covering is re-useable and should not be thrown away. • It is still important to maintain social distancing of 6 feet, when
possible.
How to Wear a Cloth Face Covering
• Make sure it fits snugly but comfortably against the side of the face. Secure with ties or ear loops.
• Use a cover with multiple layers of fabric but make sure it allows for breathing without restriction.
• Be careful not to touch your eyes, nose, or mouth when removing and wash hands immediately after.
• Do not put used face coverings where others can touch them. • Do not touch or use anyone else’s face covering. Assume used
masks are contaminated until they are laundered. • When not using your cloth face covering, store it in your personal
locker where the cover will not become soiled or picked up by others. • If you must take off your face covering and then put it back on before laundering, ensure the part of the covering that was facing out stays facing out. (Consider marking the outside or inside).
Routinely Wash Cloth Face Coverings
• The cover should be washed before the first use. • Inmates should send cloth face coverings through the institution wash cycles with other
clothing. • Launder face coverings using the warmest water setting and dry completely.

Updated 4-11-2020

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What you need to know about Coronavirus Disease 2019 (COVID-19)
You may have heard about the novel coronavirus, also called COVID-19. This illness was first identified a few months ago and has spread around the world in a short time. The Bureau of Prisons has been taking measures to help prevent the spread of COVID-19

How it Spreads
COVID-19 is a virus. This means it spreads by body fluids and direct contact. It can also live in the air and on surfaces. We are still learning about it, but we think it lives outside the body for many hours.
 Between people who are in close contact with one another (within about 6 feet).
 Through droplets produced when an infected person coughs or sneezes.
The virus can live on surfaces for several days. It may be possible that a person can get COVID -19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes

SYMPTOMS
COVID-19 is a respiratory illness - it mainly affects breathing. People who are infected may have a variety of different symptoms.
The most common symptoms include:  Fever  Cough  Shortness of breath
Less common symptoms include  vomiting  diarrhea  headaches  aches and pains  sore throat

Take steps to protect yourself
 Wash your hands often with soap and water for at least 20 seconds especially after you blow your nose, cough, or sneeze.
 Avoid touching your eyes, nose, and mouth with unwashed hands.
Avoid close contact  You may have heard the term "social distancing" - this means trying to keep as much space as
possible between you and other people.
Cover coughs and sneezes  Cover your mouth and nose with a tissue when you cough or sneeze or use the inside of your elbow.  Throw used tissues in the trash.  Immediately wash your hands with soap and water for at least 20 seconds.

People who are sick may be placed in isolation
This means they will be housed away from other inmates to keep others from getting sick. If you are placed in isolation, you will still have access to staff and materials to keep you occupied.

If you develop emergency warning signs for COVID-19 get medical attention immediately.
Emergency warning signs include:  Trouble breathing,  Persistent pain or pressure in the chest,  New confusion or inability to arouse,  Bluish lips or face

We encourage you to keep in contact with your loved ones and engage in healthy activities like programming, reading, and exercise. Reach out to Psychology Services if you are feeling anxious about this issue.
4/15/2020
Exhibit X page 166

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 167 of 229 Page ID #:1076

Lo que debe saber acerca de la enfermedad del coronavirus 2019 (covid-19)

Es posible que haya oído hablar sobre el nuevo coronavirus, también conocido como covid-19. Esta enfermedad se identificó por primera vez hace algunos meses y se ha expandido en todo el mundo en un corto tiempo. La Agencia de Prisiones ha tomado medidas para prevenir la propagación de la covid-19.

Forma de contagio
La enfermedad covid-19 es un virus. Eso significa que se contagia a través de los fluidos corporales y el contacto directo. También puede sobrevivir en el aire y en las superficies. Aún estamos aprendiendo sobre él, pero se cree que puede sobrevivir muchas horas fuera del cuerpo.
 Entre personas con contacto cercano (a una distancia de aproximadamente 6 pies).
 Mediante las gotas que se producen cuando la persona infectada tose o estornuda.
El virus puede sobrevivir varios días en las superficies. Es posible contagiarse por tocar una superficie o un objeto que tiene el virus y luego tocarse la boca, la nariz o los ojos.

SÍNTOMAS
La covid-19 es una enfermedad respiratoria, es decir, que afecta principalmente a la función de respiración. Los infectados pueden presentar diversos síntomas.
Los síntomas más comunes incluyen los siguientes:  fiebre,  tos,  dificultad para respirar.
Los síntomas menos comunes incluyen los siguientes:  vómitos,  diarrea,  dolor de cabeza,  dolor y malestar,  dolor de garganta.

Tome medidas para protegerse
⇒ Lávese las manos frecuentemente con agua y jabón por al menos 20 segundos, especialmente luego de sonarse la nariz, toser o estornudar.
⇒ Evite tocarse los ojos, la nariz y la boca sin haberse lavado las manos previamente.
Evite el contacto cercano ⇒ Es posible que haya oído hablar del término “distanciamiento social”, que significa mantener la mayor
distancia posible con las demás personas.
Cúbrase la boca si tose y estornuda ⇒ Cúbrase la boca y la nariz con un pañuelo cuando tosa o estornude, o utilice la parte interna del codo. ⇒ Tire los pañuelos usados a la basura. ⇒ Lávese las manos inmediatamente con agua y jabón por al menos 20 segundos.

Es probable que se coloque en aislamiento a las personas con síntomas
Esto significa que se las mantendrá separadas de los otros reos, con el objeto de evitar que ellos se contagien. Si lo ponen en aislamiento, seguirá teniendo acceso al personal y a los materiales que le permiten mantenerse ocupado.

Si desarrolla síntomas de emergencia de la covid-19, solicite atención médica inmediatamente.
Los síntomas de emergencia incluyen los siguientes: ⇒ dificultad para respirar; ⇒ dolor persistente o presión en el pecho; ⇒ confusión reciente o incapacidad para
levantarse; ⇒ labios o rostro azulados.

Le recomendamos que se mantenga en contacto con sus seres queridos y que realice actividades saludables, como la programación, la lectura y el ejercicio. Acérquese a Servicios Psicológicos si siente ansiedad sobre este tema.
4/15/2020
Exhibit X page 167

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 168 of 229 Page ID #:1077
Hands that look clean can still have icky
germs!
Wash Your Hands!

This material was developed by CDC. The Life is Better with Clean Hands campaign is made possible by a partnership between the CDC Foundation, GOJO, and Staples. HHS/CDC does not endorse commercial products, services, or companies.

Exhibit X page 168

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 169 of 229 Page ID #:1078
¡Aunque las manos se vean limpias pueden tener microbios
asquerosos!
¡Lávate las manos!

Este material fue elaborado por los CDC. La campaña “La Vida es Mejor con las Manos Limpias” es posible gracias a una asociación entre la Fundación de los CDC, GOJO Industries y Staples. Los CDC y el HHS no respaldan productos, servicios ni empresas comerciales.

Exhibit X page 169

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 170 of 229 Page ID #:1079
Symptoms of Coronavirus (COVID-19)

Your symptoms can include the following:

Fever
Cough Shortness*Symptoms may of breath appear 2-14 days
after exposure.

If you have COVID-19, you may have mild (or no symptoms) to severe illness.
Symptoms can appear 2-14 days after you are exposed to the virus that causes COVID-19.
Seek medical attention immediately if you or someone you love has emergency warning signs, including:
• Trouble breathing • Persistent pain or pressure
in the chest • New confusion or not able to
be woken
• Bluish lips or face
This list is not all inclusive. Please consult your medical provider for any other symptoms that are severe or concerning.

CS 316475-A April 13, 2020 6:49 PM

cdc.gov/coronavirus
Exhibit X page 170

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 171 of 229 Page ID #:1080
SÍNTOMAS DE LA ENFERMEDAD DEL CORONAVIRUS 2019
Los pacientes con COVID-19 han presentado enfermedad respiratoria de leve a grave.
Los síntomas* pueden incluir FIEBRE

*Los síntomas pueden aparecer de 2

TOS

a 14 días después de la exposición.

Consulte a un médico si presenta síntomas y ha estado en contacto cercano con una persona que se sepa que tiene el COVID-19, o si usted vive o ha estado recientemente en un área en la que haya propagación en
curso del COVID-19.

DIFICULTAD PARA RESPIRAR

*Symptoms may appear 2-14 days

after exposure.

CS 315252-B March 16, 2020, 1:35PM

cdc.gov/COVID19-es
Exhibit X page 171

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 172 of 229 Page ID #:1081

•
MEMORANDUM FOR ALL CHIEF EXECUTIVE OFFICERS

U.S. Department of Justice
Federal Bureau of Prisons
Washington, D.C. 20534
March 13, 2020

FROM:

~--=========>
ANDRE MATEVOUSIAN, ACTING ASSISTANT DIRECTOR CORRECTIONAL PROGRAMS DIVISION

~---->
L. CRISTINA GRIFFITH, ASSISTANT DIRECTOR HUMAN RESOURCE MANAGEMENT DIVISION

SUBJECT:

CORONAVIRUS (COVID-19} PHASE TWO ACTION PLAN

The BOP has been planning for coronavirus since January 2020. Phase One activities included guidance from the Health Services Division regarding description of the disease, where the.infection was occurring and best practices to mitigate transmission. An agency task force was working in conjunction with subject matter experts in the Centers for Disease Control (CDC) and reviewing guidance from the World Health Organization. The Bureau of Prisons (BOP), after coordination with the Department of Justice and the White House, is implementing Phase Two of our COVID-19 response.

Effective immediately, the following measures are being deployed by the BOP for institution operations in order to mitigate the spread of COVID-19, acknowledging the country will have more confirmed cases in the coming weeks. Due to the high population density of prisons, the BOP is vulnerable to higher rates of infection and transmission within prisons and communities where staff live. These measures are also being put in place to ensure staff remain healthy and available for duty. (Specific guidance for noninstitution BOP offices (e.g. Central and Regional Offices and BOP training centers) will be issued for those locations.)

HIRING: Staff hiring initiatives will continue.

LOGISTICS: All institutions should assess their inventories of food, medicines, cleaning supplies,
and sanitation supplies. Institutions and regions should also update their pandemic plans and institutions should establish quarantine areas within their facilities, should they be needed.

SOCIAL VISITS: Social visits will be suspended for 30 days, at which time the suspension will be
reevaluated.
To ensure that inmates maintain community ties, inmate telephone system minutes will be increased to 500 minutes per calendar month Bureau-wide by the Trust Fund Branch.

Exhibit Y page 172

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 173 of 229 Page ID #:1082
INMATE MOVEMENT: All inmate internal movement will be suspended for 30 days, at which
time the suspension will be reevaluated. Exceptions to this suspension are transfers related to forensic studies, writs, Interstate Agreements on Detainers (IAD), medical or mental health reasons, and RRC placements. Admission of newly-committed inmates will continue. Other case-by-case exceptions for judicial proceedings may be brought to the attention of the appropriate Regional Counsel for consideration.
All intra-agency movements are suspended. Local medical trips should still continue, as necessary.
LEGAL VISITS: Legal visits will be suspended for 30 days, at which time the suspension will be
reevaluated. Case-by-case approval at the local level and confidential legal calls will be allowed in order to ensure access to counsel.
Access to legal counsel remains a paramount requirement and should be accommodated to the maximum extent practicable. Although legal visits are generally suspended for 30-days, case-by-case accommodation should be made at the local level. Attorneys should be encouraged to make requests through the main email address for each facility located on bop.gov, telephonically or by contacting the appropriate Consolidated Legal Center (CLC). The CEO must designate staff at the institution to monitor the email box on an ongoing, regular basis.
If approved for an in-person visit, the attorney will need to undergo screening using the same procedures as staff. The overall authority to approve legal visits lies with the Warden.
OFFICIAL STAFF TRAVEL: Official staff travel, with the exception of relocation travel, will be
suspended for 30 days, at which time the suspension will be reevaluated. Any exceptions must be approved by the BOP Deputy Director.
TRAINING: All staff training is suspended for 30 days, (to include conferences and meetings), with
the exception of ICT1 and ICT2, at which time the suspension will be reevaluated. Any exceptions must be approved by the Deputy Director.
Larger training facilities should be used for ICT1, where practicable, to accomplish social distancing.
CONTRACTORS: Contractors performing essential services or necessary maintenance on
essential systems will continue, and will be screened using the same procedures as for staff prior to entry.
Essential services include, for example, medical services, mental health services, religious services and critical infrastructure repairs.
VOLUNTEERS: Volunteer visits will be suspended for 30 days, unless approved by the Deputy
Director of the BOP. The suspension will be reevaluated in 30 days. Alternate means of communication will be considered for inmates who request to speak with a religious advisor.
Exhibit Y page 173

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 174 of 229 Page ID #:1083
Alternate means of communication should include telephone calls, video conferences and other appropriate forms of communication. If approved for an in-person visit, the volunteer will need to undergo screening using the same procedures as staff
SCREENING OF STAFF: Enhanced health screening of staff will be implemented in areas with
“sustained community transmission” and at medical referral centers. “Sustained community transmission” is determined by the CDC and will be indicated on the map on this resource page: https://www.cdc.gov/coronavirus/2019-ncov/cases-in-us.html where state community transmission indicates “Yes”. Such screening includes self-reporting and temperature checks for the next 30 days, at which time the process will be reevaluated.
An updated screening tool will be distributed to institutions in “sustained community transmission” areas and to medical referral centers. CEOs in those areas should work with their Health Services Administrator to designate a qualified health care professional to be available on all shifts to administer the temperature checks and record it on the screening form. Employees performing the screening must have appropriate PPE, to include the N-95 respirator, face shield/goggles, gloves and a gown.
Given the public health emergency, staff who refuse the enhanced health screening will be denied entry and may be subject to disciplinary action.
If staff register an oral temperature of greater than or equal to 100.4 degrees (Fahrenheit), they will be denied entry to the facility and put on sick leave. If an employee comes to work with any symptoms of illness, please refer to the OPM guidance issued on Saturday, March 7th (Section F).
SCREENING OF INMATES: Field sites should continue to screen inmates for COVID-19
following previously indicated practices:  All newly-arriving BOP inmates are screened for COVID-19 exposure risk factors and symptoms.  Asymptomatic inmates with exposure risk factors are to be quarantined.  Symptomatic inmates with exposure risk factors are to be isolated and tested for COVID-19 per local health authority protocols  To-date, no inmates have tested positive for COVID-19 in the BOP.
TOURS: Tours will be suspended for 30 days, at which time the suspension will be reevaluated. Any
exceptions must be approved by the Deputy Director.
Requests should be routed through the appropriate Regional Director to the applicable Assistant Director (for example, judicial requests through OGC, legislative requests through IPPA, etc.). If approved, participants will need to undergo screening using the same procedures as staff
MODIFIED OPERATIONS: For the next 30 days, Wardens should implement modified
operations to maximize social distancing in our facilities, as much as practicable. The suspension will be reevaluated in 30 days. In recognition of First Step Act requirements, programs should continue to be operated when feasible. CEOs and UNICOR staff should endeavor to maintain operations of UNICOR factories as long as practicable, with consideration of this guidance.
All Program Reviews and ACA/PREA audits will be rescheduled once normal operations are resumed.
Exhibit Y page 174

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 175 of 229 Page ID #:1084
CEOs should consider staggered meal times and staggered recreation times, for example, in order to limit congregate gatherings. All community service projects should also be suspended for 30 days.
PRIVATE CONTRACTORS: This COVID-19 guidance will be shared with private prisons and
Residential Reentry Centers (RRCs) for dissemination to staff and inmates in these facilities, so that similar protocols can be implemented.
Questions: If staff have questions about COVID-19, they may reach out to the agency through
COVID19Questions@bop.gov. We appreciate your assistance and cooperation in this important matter.
Exhibit Y page 175

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 176 of 229 Page ID #:1085

ATTACHMENT A – SAMPLE WARDEN MEMO TO INMATES

MEMORANDUM FROM WARDEN

SUBJECT:

BOP CORONAVIRUS (COVID-19) PROTECTIVE MEASURES

As you may be aware in talking to persons in the community, the United States is seeing an increase in the number of confirmed cases of infected persons. Effective immediately, the following actions are being taken by the Bureau of Prisons (BOP) in order to prevent or reduce the spread of COVID-19.

SCREENING OF INMATES: The BOP is screening inmates for COVID-19 using established
practices:  All newly-arriving BOP inmates are screened for COVID-19 exposure risk factors and symptoms.  Asymptomatic inmates with exposure risk factors are being quarantined.  Symptomatic inmates with exposure risk factors are to be isolated and tested for COVID-19 per local health authority protocols  To-date, no inmates have tested positive for COVID-19 in the BOP.

SOCIAL VISITS: Social visits are suspended for 30 days, at which time the suspension will be
reevaluated.
To ensure that inmates maintain community ties, inmate telephone system minutes will be increased nationally to 500 minutes per calendar month.

INMATE MOVEMENT: Inmate movement between facilities is suspended for 30 days, at which
time the suspension will be reevaluated. BOP will make exceptions for special cases such as writs for prosecution on pending charges, Interstate Agreements on Detainers (IAD), medical or mental health reasons, and RRC placements. The BOP will also continue to process and admit new inmates. Other case-by-case exceptions for judicial proceedings may also be made.

Local medical trips will be made, as necessary.

LEGAL VISITS: Legal visits will be suspended for 30 days, at which time the suspension will be
reevaluated. Case-by-case approval at the local level and confidential legal calls will be allowed in order to ensure access to counsel.

Access to legal counsel will be accommodated to the maximum extent practicable. Although legal visits are generally suspended for 30-days, you may make a request to your Unit Team, who will forward it to the institution’s Legal Department for review and final approval by the Warden. Attorneys will be screened prior to being admitted to the facility.

Exhibit Y page 176

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 177 of 229 Page ID #:1086
VOLUNTEERS: Volunteer visits will be suspended for 30 days, with limited exceptions. The
suspension will be reevaluated in 30 days. Inmates who wish to speak with a religious advisor should make a request through their Unit Team.
MODIFIED OPERATIONS: For the next 30 days, the facility will operate on a modified basis to
limit inmate group contact, as much as possible. This action is necessary to limit the transmission of the disease if anyone becomes infected. The suspension will be reevaluated in 30 days. We appreciate your assistance and cooperation in this important matter.
Exhibit Y page 177

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 178 of 229 Page ID #:1087

(t)
MEMORANDUM FOR ALL CHIEF EXECUTIV OFFICERS

U.S. Department of Justice
Federal Bureau of Prisons
Washington, D.C. 20534
March 18, 2020

FROM:

ANDRE MATEVOUSIAN, ACTING ASSISTANT DIRECTOR CORRECTIONAL PROGRAMS DIVISION

~

:=,-

L. CRISTINA GRIFFITH, ASSISTANT DIRECTOR HUMAN RESOURCE MANAGEMENT DIVISION

SUBJECT:

CORONAVIRUS (COVID-19) PHASE TWO ACTION PLAN - UPDATE #1 (Updates highlighted below)

The BOP has been planning for coronavirus since January 2020. Phase One activities included guidance from the Health Services Division regarding description of the disease, where the infection was occurring and best practices to mitigate transmission. An agency task force was working in conjunction with subject matter experts in the Centers for Disease Control (CDC) and reviewing guidance from the World Health Organization. The Bureau of Prisons (BOP), after coordination with the Department of Justice and the White House, is implementing Phase Two of our COVID-19 response.

Effective immediately, the following measures are being deployed by the BOP for institution operations in order to mitigate the spread of COVID-19, acknowledging the count ry will have more confirmed cases in the coming weeks. Due to the high population density of prisons, the BOP is vulnerable to higher rates of infection and t ransmission wit hin prisons and communities where staff live. These measures are also being put in place to ensure staff remain healthy and available for duty. (Specific guidance for noninstitution BOP offices (e.g. Central and Regional Offices and BOP training centers) will be Issued for those locations.)

HIRING: Staff hiring initiatives will continue. For those sites who are processing a~licants, please
ensure that such persons are screened in the same manner as staff,

LOGISTICS: All institutions should assess their inventories of food, medicines, cleaning supplies,
and sanitation supplies. Institutions and regions should also update their pandemic plans and institutions should establish quarantine areas within their facilities, should they be needed.
'
SOCIAL VISITS: Social visits will be suspended for 30 days, at which time the suspension will be
reeva luated .

Exhibit Z page 178

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 179 of 229 Page ID #:1088
To ensure that inmates maintain community ties, inmate telephone system minutes will be increased to 500 minutes per calendar month Bureau-wide by the Trust Fund Branch.
INMATE MOVEMENT: Generally, inmate internal movement will be suspended for 30 days, at
which time the suspension will be reevaluated. Exceptions to this suspension may include, but are not limited to, transfers related to forensic studies, writs, Interstate Agreements on Detainers (IAD), medical or mental health reasons, and RRC placements. The BOP may also move inmates to better manage the detention bedspace. Admission of newly-committed inmates will continue with appropriate screening as previously directed. Other case-by-case exceptions for judicial proceedings may be brought to the attention of the appropriate Regional Counsel for consideration.
Local medical trips should still continue, as necessary. All movements will be authorized under the following condition:
 Inmates must have been in BOP custody for greater than 14 days;  Perform an exit screening for COVID-19 symptoms (fever, cough, shortness of breath and
temperature). o If the inmate has no symptoms and a temperature less than 100.4 degrees F, the inmate can be transferred and no Personal Protective Equipment (PPE) required by escorting staff. o If the inmate has COVID-19 symptoms, or temperature greater than 100.4 degrees F, they should not be transferred and immediately placed in isolation.
 Regional Directors will notify the BOP Emergency Operations Center prior to movement in order to track and monitor movement.
Inmates releasing to the community, whether through a Residential Reentry Center or otherwise, will be provided a sixty-day supply of medication. (BOP policy has been waived for this specific requirement.)
LEGAL VISITS: Legal visits will be suspended for 30 days, at which time the suspension will be
reevaluated. Case-by-case approval at the local level and confidential legal calls will be allowed in order to ensure access to counsel.
Access to legal counsel remains a paramount requirement and should be accommodated to the maximum extent practicable. Although legal visits are generally suspended for 30-days, case-by-case accommodation should be made at the local level. Attorneys should be encouraged to make requests through the main email address for each facility located on bop.gov, telephonically or by contacting the appropriate Consolidated Legal Center (CLC). The CEO must designate staff at the institution to monitor the email box on an ongoing, regular basis.
If approved for an in-person visit, the attorney will need to undergo screening using the same procedures as staff. The overall authority to approve legal visits lies with the Warden.
OFFICIAL STAFF TRAVEL: Official staff travel, with the exception of relocation travel, will be
suspended for 30 days, at which time the suspension will be reevaluated. Any exceptions must be approved by the BOP Deputy Director.
TRAINING: All staff training is suspended for 30 days, (to include conferences and meetings), with
the exception of ICT1 and ICT2, at which time the suspension will be reevaluated. Any exceptions must be approved by the Deputy Director.
Exhibit Z page 179

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 180 of 229 Page ID #:1089
Larger training facilities should be used for ICT1, where practicable, to accomplish social distancing.
CONTRACTORS: Contractors performing essential services or necessary maintenance on
essential systems will continue, and will be screened using the same procedures as for staff prior to entry if they are operating in the local commuting area. If, however, a contractor’s scope of work includes travel and contracts in an area with a “Sustained community transmission” (see “Screening of Staff” section below), the contractor will be expected to undergo enhanced screening.
Essential services include, for example, medical services, mental health services, religious services and critical infrastructure repairs.
VOLUNTEERS: Volunteer visits will be suspended for 30 days, unless approved by the Deputy
Director of the BOP. The suspension will be reevaluated in 30 days. Alternate means of communication will be considered for inmates who request to speak with a religious advisor.
Alternate means of communication should include telephone calls, video conferences and other appropriate forms of communication. If approved for an in-person visit, the volunteer will need to undergo screening using the same procedures as staff
SCREENING OF STAFF: Enhanced health screening of staff will be implemented in areas with
“sustained community transmission” and at medical referral centers. “Sustained community transmission” is determined by the CDC and will be indicated on the map on this resource page: https://www.cdc.gov/coronavirus/2019-ncov/cases-in-us.html where state community transmission indicates “Yes”. Such screening includes self-reporting and temperature checks for the next 30 days, at which time the process will be reevaluated.
An updated screening tool will be distributed to institutions in “sustained community transmission” areas and to medical referral centers. CEOs in those areas should work with their Health Services Administrator to designate a qualified health care professional to be available on all shifts to administer the temperature checks and record it on the screening form. Employees performing the screening must have appropriate PPE, to include a surgical mask, face shield/goggles, gloves and a gown.
Given the public health emergency, staff who refuse the enhanced health screening will be denied entry and may be subject to disciplinary action.
If staff register an oral temperature of greater than or equal to 100.4 degrees (Fahrenheit), they will be denied entry to the facility and put on sick leave. If an employee comes to work with any symptoms of illness, please refer to the OPM guidance issued on Saturday, March 7th (Section F).
HIGH RISK OR VULNERABLE STAFF: The CDC has identified that based on information
from China, certain persons are at higher risk for more serious complications from COVID-19. Such persons are:
 Older adults (age 60 or over)  People who have serious chronic medical conditions (per CDC’s website);  Pregnant women.
Exhibit Z page 180

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 181 of 229 Page ID #:1090
Staff who are considered by the CDC to be at a higher risk regarding COVID-19 may be eligible for additional accommodations. Please review guidance for this population on the CDC website and consult with your supervisor. Employees are required to self-certify their medical condition. The selfcertification form can be found on the Sallyport COVID-19 Resource page.
A special note regarding accommodation requests based on spouses or significant others who are considered to be at higher risk for COVID-19 complications:
The CDC does not recommend testing, symptom monitoring or special management for people exposed to asymptomatic people with potential exposures to COVID-19. In other words, “contacts of contacts” are not considered to be at risk.
As such, while a staff member who comes into work could be considered a person with potential exposure (i.e., a "contact of a contact"), the staff member’s spouse or partner is not considered to be at increased risk for exposure to COVID-19 and, as applied to consideration for higher risk accommodation, is not a criteria for approval of accommodation for the employee.
SCREENING OF INMATES: Field sites should continue to screen inmates for COVID-19
following previously indicated practices:  All newly-arriving BOP inmates are screened for COVID-19 exposure risk factors and symptoms.  Asymptomatic inmates with exposure risk factors are to be quarantined.  Symptomatic inmates with exposure risk factors are to be isolated and tested for COVID-19 per local health authority protocols  To-date, no inmates have tested positive for COVID-19 in the BOP.
TOURS: Tours will be suspended for 30 days, at which time the suspension will be reevaluated. Any
exceptions must be approved by the Deputy Director.
Requests should be routed through the appropriate Regional Director to the applicable Assistant Director (for example, judicial requests through OGC, legislative requests through IPPA, etc.). If approved, participants will need to undergo screening using the same procedures as staff
MODIFIED OPERATIONS: For the next 30 days, Wardens should implement modified
operations to maximize social distancing in our facilities, as much as practicable. The suspension will be reevaluated in 30 days. In recognition of First Step Act requirements, programs should continue to be operated when feasible. CEOs and UNICOR staff should endeavor to maintain operations of UNICOR factories as long as practicable, with consideration of this guidance.
All Program Reviews and ACA/PREA audits will be rescheduled once normal operations are resumed.
CEOs should consider staggered meal times and staggered recreation times, for example, in order to limit congregate gatherings. All community service projects should also be suspended for 30 days.
PRIVATE CONTRACTORS: This COVID-19 guidance will be shared with private prisons and
Residential Reentry Centers (RRCs) for dissemination to staff and inmates in these facilities, so that similar protocols can be implemented.
Exhibit Z page 181

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 182 of 229 Page ID #:1091
Questions: If staff have questions about COVID-19, they may reach out to the agency through
COVID19Questions@bop.gov. We appreciate your assistance and cooperation in this important matter.
Exhibit Z page 182

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 183 of 229 Page ID #:1092 ll.S. Department of Justice
F d r�ll Bureau uf Pri:-.ons

~1111/,,'11,:1,,,,. /)( 2115.l.J

MAR 1 8 2020

MEMORANDUM FOR ALL CENTRAL OFFICE, REGIONAL OfFICE AND TRANING

CENTER STAFF

�.•>-=<~-------->-·

fROM:

L. Cristina G�iffich

Assistant Direc�or

Human Resource Managemenl Divisio�

SUBJECT:

Coronavirus (COVID 19) Pha5e III Action Plan Non-Institutio n Locations

The following guidance applies to non-institution Bureau of Prisons
(BOP) locat'l ons only; Central Office, Regional Offices, Training Centers, the Grand Prairie Of fl'ce Complex, and RRM Offices. This
guidance is intended �o mitigate the spread of COVID-19 ir. these
locations and encourage the practice of social distancl'ng, while maximizing flexibility and productivity for s La ff to accomplish �he agency miss i on. This gu'dance is effective until further notice, and
will be evaluated and updated as the COVID-19 response evolves.

TELEWOR K
On March 15, 2020, t he Department of Justice (DOJ) temporarily relaxed the policy requirements for telework, asking that all components explore maximum available fle�ibilities to enable social distancing as much as possible to mitigate the spread of the disease. This discret·on, however, is expected to be exercised so as no� to diminish public confidence, and to support institution operations.
TELEWORK READY: Effective immediately, all statt who are Lel work ready, (meaning they have a current telewo�k agreement, an active remote access (RSA) token, and a laptop/tablet that has been properly updated to Windows 10), may make a request through their supervisor tote1ewerk up to five (5) days a week. Tt e BOP is temporarily relaxing our telework policy (PS3630.02) until further notice, and

Exhibit AA page 183

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 184 of 229 Page ID #:1093
permi tting employees to telework notwithstanding a compressed work schedule (CWS) and to care for others in their home while
teleworking . Under the former exceptjon (CWS + telework } , the
employee is expected to work cheir full schedule (5/4/9 or 4/10) regardless of whether their workplace is at home or at the office . Under the latter exception (providing care for a household member), a teleworking employee is expected to accoun ~or all work and non-work hours and take appropriate leave to account for time spent away from work-related duties. All o t her provisions of policy relating to telework and the empl oyee's telework agreement remain in effect.
It is the employee's responsibility to maintain productivity by
forwarding their desk phones or checking voicemail regularly. Delays in responsiveness will result · n revaluation of the telework schedule.
Supervisors will r eview all telework agreements to ensure
organizationa: effectiveness.
Although the Bureau is maximizing the opportunity to telework during
this period, please note that five days of telework may not be
possible in all cases, and even if approved, staff members may be directed to report to the work site as needed .
TELEWORK ELIGIBLE BUT NOT READY : Staff whose positions are
telework e l i gible , but are not telework ready, may not be able to telework at this time. Staff who are interested in te l ework must complete a te l e work agreemen~ and provide it to their supervisor, however, the approval will rest with the appropriate Assistant Director, Regional Director , or Training Center Director , or designees, until further notice. For tracki ng and accountability purposes, p lease submit the agreements to the appropriate Human Resource Servicing Office. If possible, staff should complete the te l e wor k train i ng, prior to beginning telework, but it is no mandatory during this emergency . Managers slould consider providing
work to staff that can be performed at home without access to the
workstation . If managemenL determines the s aff member needs to be physically present , consideration to staggering staff schedules {days or shifts) to minimize the number of staff in the workspace o encourage maximum social distancing should be evalua ed. The agency is aggressively working to a c quire additional equipment or repurpose existing equipment for teleworking. Once the equipment is available, it will be distributed to employees in relation to request submission and agency priorities. Any staff who management determines to not
Exhibit AA page 184

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 185 of 229 Page ID #:1094
need to be physically present in the workplace, will be placed on weather and safety leave . Any staff who can p erform work at home for any time pe riod (days or hours) , will be placed on weather and safety leave for time that they do not have or are not provided work to perform at home.
TELEWORK INELIGIBLE: Staff whose positions are currently not telewor k e l igible , may temporarily be cons i der ed to t ele wo rk duri ng th is public health emergency, work permitting . As stated above, mana ge rs should consider providing work to staff t hat can be performed at home without access to the workstation. If the staff member needs to be physically present at the works ite, consider staggering staff schedules (days or shifts) to minimize the number of
staff in the workspace to encourage max imum socia l distancing. Any staff who managemenL determine to not need to be ~hysically present in the workplace, will be place d on we ather and sa fety leave. Any staff who can perform work at home , during all or part of the day , will be placed on weather and safety leave for time that they are not provided work to perform at home .
HIGH RISK OR VULNERABLE STAFF
The CDC has i dent ified hat based on information from China , certain persons are at h igher risk for more seriou s complications from COVID19. Such persons are:
Older adults (age 60 or over) • People who have serious chronic med ica l cond it ion s such as:
o Heart disease o Diabe tes , and o Lung disease . Staf f who ar e considered by the CDC to be at a higher risk regard ' ng COVID -1 9 may be eligib l e for additional telework accommodations . Pl ease revie w gu i dance for this population on the CDC wo bsi e and consult with your supervisor.
A special note regarding t elework requests based on spouses or significant others who are cons i dered to be at higher r isk for COVID-19 compl cations; The CDC does not recommend testing, symptom monitoring or special management for people exposed to asymptomatic people with pote11Lial exposures to COVID19. In other words, "contacts of contacts• are not considered to be at risk.
Exhibit AA page 185

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 186 of 229 Page ID #:1095
As such, while a staff member who comes into work could be considered a person with potential exposure (i.e., a "contact of a contact"), the staff member's spouse or partner is not considered to be ac increased risk for exposure to COVID-19 and, as applied to consideration for higher risk telework, is not a criteria for approving full- ime telework for the
employee.
As prevlously stated in the introduction, the elework guidelines
noted above are temporary, but until further notice, but may be modified in the interim as needed.
CONTRACTORS
Guidance for contractors at the Central Office, Regional Offices or Training Centers is similar to the requirements of contractor access to ins titutions. Contractors performing essential services or necessary maintenance on essential systems will cont inue to be provided access. They must complete t he screening tool for contractors and visitors posted on Sallyport and the BO P public website prior to being authorized entry .
MEETINGS
Whenever possible, practice social distanci g at all meetings. Meetings with external persons should be facilitated via conference call , video conference or web conferencing whenever feasible. If an in-person meeting is required, the visitor must complete the
Visitor/Contractor screening tool posted on Sallyport and the BOP's public website.
TRAINING
All staff training is suspen ed for 30 days (to include conferences), with the exception of ICTl, at which time the suspension will be reevaluated. Any exceptions must be routed through your Assistant Di rector or Regional Director for approval by the BOP Dep uty Director. NIC staff should route their request through the Acting
NIC Director for consideration by the BOP Deputy Director.
OFFICIAL STAFF TRAVEL
Official staff travel, with the exception of relocation travel , will be suspended for 30 days, at which time the suspens · on will be reeval ua ed, based upon directive of the Office of Management and Budget. Any exceptions must be approved through your Ass i stant
Exhibit AA page 186

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 187 of 229 Page ID #:1096
Director or Regional Director by the BOP Deputy irector. NIC staff should route their request through the Acting NIC Director for consideration by the BOP Deputy o·rector.
SCREENING OF STAFF
It is possible that in the future, a BOP office covered by this guidance w'J become part of a location identified by the CDC as having "sustained community transmiss·on." These areas are indicated on the map on this resource page: https://www.cdc.gov/coronavirus/2019rcov/cases-in-us.html where state community transmission indica es �Yes." If such an event occurs, essential staff who are required to be present in the of ice will undergo enhanced health 5creening. Such screening includes self-reporting and temperature checks. Employees who will be designated to perform the screening wil have app�opr'ate Personal Protective Equipment (PPE), to include the N-95 respirator, face shield/goggles, gloves and a gown. Given the public health emergency, essential staff who refuse the enhanced health screening will be denied entry and may be subject to disciplinary action. f staff register an oral temperature of greater than or equal to 100.4 degrees (Fahrenheit), they will be denied entry to the facility and put on sick leave. If an employee
comes to work with any symptoms of illness, please refer to the 2f!'.!
guidan e issued on Saturday, March 7, 2020 (Section F).
SECONDARY LAW ENFORCEMENT STAFF
As this emergency evolves, any secondary law enforcement staff may be deployed to institutions to meet institution staffing levels throughout this public health emergency.
Qu�s�ions: If staff have questions about COVID-19, they may reach out to the agency through C0VID19Questions@bop.gov. We appreciate your assistance and cooperation in this important mat er.
Exhibit AA page 187

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 188 of 229 Page ID #:1097

MEMORANDUM FOR ALL CHIEF EXEC~

U.S. Department of Justice Federal Bureau of Prisons

======-=:::,

Washington, D.C. 20534
March 26, 2020

FROM:

ANDRE MATEVOUSIAN, ACTING ASSISTANT DIRECTOR CORRECTIONAL PROGRAMS DIVISION

SUBJECT:

L. CRISTINA GRIFFITH, ASSISTANT DIRECTOR HUMAN RESOURCE MANAGEMENT DIVISION
CORONAVIRUS (COVID-19) PHASE FOUR ACTION PLAN

Effective immediately, the following preventative measures are mandated for all institutions.
QUARANTINE AND ISOLATION
At every facility, all newly admitted inmates to the Bureau of Prisons (BOP), whether in a sustained community transition area or not, will be assessed using the screening tool (see attached), and a temperature check will be performed by trained staff or contractors. This includes all new intakes, detainees, commitments, writ returns, and parole violators, regardless of their mode of arrival (e.g., voluntary surrender, U.S. Marshals Service (USMS)/Justice Prisoner and Alien Transportation System (JPATS), Immigration and Customs Enforcement (ICE)) . Intra-system transfers of inmates who have been in the BOP population for more than 14 days do not need to be screened upon return to the facility. Employees and contractors performing the screening must wear Personal Protective Equipment (PPE), to include surgical mask, face shield/goggles, gloves, and a gown in accordance with Centers for Disease Control and Prevention (CDC) guidance. It is not required to change PPE after each screening. PPE must be changed after a suspect screening or upon being contaminated.
If a screened inmate is asymptomatic, they will be placed in quarantine for a minimum of 14 days or until cleared by medical staff.
If an inmate is symptomatic (shortness of breath, cough, or a temperature of 100.4° Fahrenheit or higher), they must be placed in isolation until they test negative for COVID-19, and cleared by medical staff as meeting CDC criteria for release from isolation.
Please reference the quarantine and isolation documents on Sallyport, available here: http://sallyport.bop.gov/co/hsd/infectious disease/COVID-19%20Guidance.jsp

Exhibit BB page 188

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 189 of 229 Page ID #:1098
EXIT SCREENING OF INMATES
All inmates w ill have a COVID-19 symptom screening and temperature check prior to leaving a facility for routine reasons such as transfers, schedu led appointments, or court appearances. If they are symptomatic for COVID-19 (shortness of breath, cough, or a temperature of 100.4° Fahrenheit or higher), they will be placed in isolation.
SCREENING OF STAFF/CONTRACTORS/OTHER VISITORS:
At every facility, all individuals will be screened using the updated screening tool and temperature checks, which will be performed by trained staff or contractors. Employees and contractors performing the screening must have appropriate PPE, to include surgical mask, face shield/goggles, gloves, and a gown, in accordance with CDC guidance. Given the public health emergency, individuals who refuse the enhanced health screening will be denied entry into the facility. Staff who refuse the enhanced health screening may be subject to disciplinary action.
Any individual who registers a temperature of 100.4° Fahrenheit or higher will be denied entry into the facility. Staff who register a temperature of 100.4° Fahrenheit will be placed on sick leave. If staff come to work with any symptoms of illness, please refer them to OPM guidance issued on Saturday, March 7, 2020 OPM guidance issued on Saturdav, March 7th (Section F).
INSTITUTIONS THAT DIRECTLY SERVICE A JUDICIAL DISTRICT
Institutions that house pre-trial inmates or service judicial districts for court appearances will develop alternative methods to in-person appearances, if possible. These methods must be discussed through collaboration with the U.S. Attorney's Office and the Judiciary to mitigate exposure risks associated with movement to and from the court. Examples include the establishment of video conferencing or in-person hearings at the institution.
FIT TESTING
Effective immediately, all non-bargaining positions within the agency are mandated to comply and participate in the respiratory protection program as stated in Program Statement 1600.11, Chapter 3 Section 2, Respiratory Protection. It is highly recommended all other staff voluntarily complete the training to ensure maximum numbers of staff are available on each shift to meet the anticipated needs throughout this public health emergency. This participation includes the completion of the " OSHA Medical Questionnaire" for medical review and clearance followed by training and proper fit-testing for the following respirators:
• N-95 • Scott M-120 full face respirator (Gas Mask), and • Scott AV-3000 sure seal face piece (Scott Air-Pak 75 SCBA)
Exhibit BB page 189

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 190 of 229 Page ID #:1099
Upon completion of the initial training and fit-testing, staff must maintain a state of readiness to use a respirator at all times, to include absence of facial hair that would interfere with the seal of the respirator. Individuals who are unable to obtain medical clearance must request accommodation, in accordance with Program Statement 3720.03, Reasonable Accommodation Program. Training and certification must be completed by Friday, April 3, 2020.
Questions
If staff have questions about COVID-19, they may reach out to the agency at the following email box: COVID19Questions@bop.gov. We appreciate your assistance and cooperation in this important matter.
Exhibit BB page 190

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 191 of 229 Page ID #:1100

•
MEMORANDUM FOR ALL CHIEF EXE~

U.S. Department of Justice Federal Bureau of Prisons
Washington, D.C. 20534
March 28, 2020 S

FROM:

ANDRE MATEVOUSIAN, ACTING ASSISTANT DIRECTOR CORRECTIONAL PROGRAMS DIVISION

SUBJECT:

CORONAVIRUS (COVID-19) PHASE FOUR ACTION PLAN - Update #1

Effective immediately, the following preventative measures are mandated for all institutions.
QUARANTINE AND ISOLATION
At every facility, all newly admitted inmates to the Bureau of Prisons (BOP), whether in a sustained community transition area or not, will be assessed using the screening tool (see attached), and a temperature check will be performed by trained staff or contractors. This includes all new intakes, detainees, commitments, writ returns, and parole violators, regardless of their mode of arrival (e.g., voluntary surrender, U.S. Marshals Service (USMS)/Justice Prisoner and Alien Transportation System (JPATS), Immigration and Customs Enforcement (ICE)). Employees and contractors performing the screening must wear Personal Protective Equipment (PPE), to include surgical mask, face shield/goggles, gloves, and a gown in accordance with Centers for Disease Control and Prevention (CDC) guidance. It is not required to change PPE after each screening. PPE must be changed after a suspect screening or upon being contaminated .
If a screened inmate is asymptomatic, they will be placed in quarantine for a minimum of 14 days or until cleared by medical staff.
If an inmate is symptomatic (shortness of breath, cough, or a temperature of 100.4° Fahrenheit or higher), they must be placed in isolation until they test negative for COVID-19, or cleared by medical staff as meeting CDC criteria for release from isolation.
Please reference the quarantine and isolation documents on Sallyport, available here: http://sa llyport.bop.gov/co/hsd/infectious disease/COVID-19%20Guidance.jsp

Exhibit CC page 191

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 192 of 229 Page ID #:1101
EXIT SCREENING OF INMATES
All inmates will have a COVID-19 symptom screening and temperature check prior to leaving a facility for routine reasons such as transfers, scheduled appointments, or court appearances. If they are symptomatic for COVID-19 (shortness of breath, cough, or a temperature of 100.4° Fahrenheit or higher), they will be placed in isolation.
SCREENING OF STAFF/CONTRACTORS/OTHER VISITORS:
At every facility, all individuals will be screened using the updated screening tool and temperature checks, which will be performed by trained staff or contractors. Employees and contractors performing the screening must have appropriate PPE, to include surgical mask, face shield/goggles, gloves, and a gown, in accordance with CDC guidance. Given the public health emergency, individuals who refuse the enhanced health screening will be denied entry into the facility. Staff who refuse the enhanced health screening may be subject to disciplinary action.
Any individual who registers a temperature of 100.4° Fahrenheit or higher will be denied entry into the facility. Staff who register a temperature of 100.4° Fahrenheit will be placed on sick leave. If staff come to work with any symptoms of illness, please refer them to OPM guidance issued on Saturday, March 7, 2020 OPM guidance issued on Saturdav, March 7th (Section F).
INSTITUTIONS THAT DIRECTLY SERVICE A JUDICIAL DISTRICT
Institutions that house pre-trial inmates or service judicial districts for court appearances will develop alternative methods to in-person appearances, if possible. These methods must be discussed through collaboration with the U.S. Attorney's Office and the Judiciary to mitigate exposure risks associated with movement to and from the court. Examples include the establishment of video conferencing or in-person hearings at the institution.
FIT TESTING
Effective immediately, all non-bargaining positions within the agency are mandated to comply and participate in the respiratory protection program as stated in Program Statement 1600.11, Chapter 3 Section 2, Respiratory Protection. It is highly recommended all other staff voluntarily complete the training to ensure maximum numbers of staff are available on each shift to meet the anticipated needs throughout this public health emergency. This participation includes the completion of the " OSHA Medical Questionnaire" for medical review and clearance followed by training and proper fit-testing for the following respirators:
• N-95 • Scott M-120 full face respirator (Gas Mask), and • Scott AV-3000 sure seal face piece (Scott Air-Pak 75 SCBA) Upon completion of the initial training and fit-testing, staff must maintain a state of readiness to use a respirator at all times, to include absence of facial hair that would interfere with the seal of the respirator.
Exhibit CC page 192

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 193 of 229 Page ID #:1102
Individuals who are unable to obtain medical clearance must request accommodation, in accordance with Program Statement 3720.03, Reasonable Accommodation Program. Training and certification must be completed by Friday, April 3, 2020.
Questions
If staff have questions about COVID-19, they may reach out to the agency at the following email box: COVI D19Questions@bop.gov. We appreciate your assistance and cooperation in this important matter.
Exhibit CC page 193

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 194 of 229 Page ID #:1103

CORONAVIRUS DISEASE 2019 (COVID-19) STAFF SCREENING TOOL

1. Temperature:

DATE:- - - - - - - - - - - - -

OF Method: Mouth

Ear

Forehead

o If Temperature (Mouth) 2: I00.4°F, or Temperature (Ear) 2::.10 1°F, or Temperature (Forehead) 2: I00°F Then Deny Access, Place on Leave (NotSafety&WeatherLeave) for 3 days + STOP HERE & Proceed to Section 3

2. Signs (Employee Complete)

D Yes D No New On-Set Cough

# of Days

D Yes D No New Onset Trouble Speaking because of Needing to take a Breath

D Yes DNo Stuffy/Runny Nose

),:, Contact the Medical Officer on Call for the Institution to provide Disposition
,/ Disposition by Medical Officer Assessment: D Leave D Work

3. Notification of Local Human Resources Department
o If Individual is placed on leave for Section 1 or 2, Then share document with HR Office for T&A purpose
),:, HR
o Please have HSD place this document in the Employee's Medical Folder (Blue Folder) if leave is indicated

Staff Name (Last, First): _ __ _ __ _ _ _ _ _ _ __ Year of Birth (Year): _ _ _ __

Institution:-- -- - - - - - - - - - -- - -

State: - - - - - - -- -

March 2020, Version 2.8

Exhibit CC page 194

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 195 of 229 Page ID #:1104

•

U.S. Department of Justice Federal Bureau of Prisons
Washington, D.C. 20534
March 31, 2020

FROM:

ANDRE MATEVO IAN, ACTING ASSISTANT DIRECTOR
CORRECTIONAL PROGRAMS DIVISION
#.cc:e,
NICOLE ENGLISH, ~SISTANT DIRECTOR HEALTH SERVICES DIVISION

SUBJECT:

CORONAVIRUS {COVID-19) PHASE FIVE ACTION PLAN

As is similar to the incidence of infection in the public, the Bureau is seeing an increasing number of Quarantine and Isolation cases in our facilities. As such, the Bureau is seeking to implement additional "social distancing" in our facilities while taking proactive operational measures to mitigate further exposure and spread of COVID-19. These action steps are designed to react to the evolving nature of the COVID-19 response, while maintaining the safety and security of our facilities and the health of our employees and inmates. The Bureau's actions in Phase Five are based on health concerns, not inmate disruptive behavior.

Effective Wednesday, April 1, 2020, the Bureau will enact a fourteen-day (14) nationwide action to minimize movement t o decrease the spread of the virus.

Medical Interventions: Rigorous infection prevention and control practices are essential to contain and mitigate the spread of COVID-19. These practices include identifying symptomatic inmates as early as possible by assessing for COVID-19 symptoms and conducting temperature checks at intake screening, exit screening, during a contact investigation, and broader screening initiatives, (e.g., daily screening or other methods of enhanced surveillance at institutions affected by COVID-19, in consultation with the Regional Quality Improveme nt/ Infection Prevention and Control Consultant). Institutions should also encourage early reporting of symptoms by inmates and provide them opportunities for medical evaluations. A prompt and thorough contact investigation should be performed for all cases of COVIDlike symptoms, in consultation with the Regional Quality Improvement/ Infection Prevention and Control Consultant. Quarantine is indicated for all close contacts of a COVID-19 case, either suspected or confirmed, as well as for all newly-arrived inmates who have been at the facility for fourteen (14) days or less. Isolation is mandatory for any inmate with COVID-like symptoms. Personal Protective Equipment (PPE) should be worn in accordance with CDC guidance (see guidance here: http://sallyport.bop.gov/co/hsd/infectious disease/covid19/covid19 gu ida nee.jsp#l 5).

Good hand and health hygiene practices and regular clea ning and disinfection of high touch surfaces should be emphasized to the inmate population. Wardens must ensure cleaning supplies are readily

Exhibit DD page 195

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 196 of 229 Page ID #:1105
available for all inmates. Institutions without any known COVID-19 cases should take proactive infection prevention and control measures, while institutions with COVID-19 cases will need to modify delivery of health care services in accordance with guidance from the Bureau Medical Director. Enhanced screening of all staff for COVID-19 should continue to include symptom and temperature checks at all institutions according to established procedures. Additionally, staff should be reminded to practice good hand and health hygiene and not to report to work when sick. At institutions with COVID19 cases, staff should be limit their movement to the areas to which they are assigned, such as departments/posts, whenever feasible to help control the spread of infection. Limited Group Gathering: To the extent practicable, inmates will be limited in their movements to prevent congregate gathering and maximize social distancing. Essential inmate work details such as Food Service will continue to operate with appropriate screening. Inmates movement in small numbers will be authorized for the following purposes:
a. Commissary b. Laundry c. Showers three times each week d. Telephone, to include legal calls, and access to TRULINCs Note that inmate movement is still expected to allow when necessary for the provision of required mental health or medical care, including continued Sick Call. Unicor operations as noted below will also continue. Appropriate Monitoring: To ensure inmates are appropriately monitored during this fourteen (14) day action, staff are expected to continue conducting daily rounds by all departments and twice a day rounds by Health Services staff. Additionally, Unit Officers must conduct and document regular thirty minute rounds. As much as practicable, provisions should be made for in-cell programming. Limited External Movement: The Bureau will coordinate with the US Marshals Service to significantly decrease incoming movement over the next fourteen (14) days. Strategic institutions will be identified for mandatory movement needs; these locations will include all detention centers and empty units that can accommodate required population increases. These areas will serve as quarantine sites until such time inmates can be moved to their final destination. Fit Testing: In addition, the Bureau is now requiring all staff to be fit-tested for the N95 mask. Fit-testing will include a requirement that staff do not have facial hair. This process is not subject to the fourteen (14) day period discussed elsewhere in this action plan but should be completed as expeditiously as is practicable. This requirement will remain in effect throughout the duration of the public health emergency. Unicor COVID-19 Manufacturing: Unicor is initiating the manufacture of face masks for use by inmates in Bureau custody. Once production is ramped up, Unicor will produce approximately 20,000 masks a day with priority disbursement to locations with current inmate positive cases. Unicor is also packaging hand sanitizer for use in BOP facilities. Unicor operations relating to farm operations will also continue. We appreciate your assistance in this significant phase of our COVID-19 response.
Exhibit DD page 196

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 197 of 229 Page ID #:1106
RESPIRATORY ISOLATION
Precautions
PRECAUCIONES de Sala de Cuarentena
ANYONE ENTERING THIS ROOM SHOULD USE:
todas las peronas que entren e esta habitacion tienen que: HAND HYGIENE
Hygiene De Las Manos
N-95 RESPIRATOR (Fit-Tested) or Surgical Mask
Respirador N-95 / Mascara facial
GOWN
Bata
EYE PROTECTION
Protección para los ojos si contacto cercano
GLOVES
Guantes
Patient wears surgical mask when others enter room
and during transport Paciente lleva mascarilla quirurgica durante el transporte.
Keep door closed at all times
Mantenga la puerta cerrada en todo momento
Exhibit EE page 197

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 198 of 229 Page ID #:1107
Quarantine
PRECAUTIONS
PRECAUCIONES
TO PREVENT THE SPREAD OF INFECTION,
ANYONE ENTERING THIS ROOM SHOULD USE:
Para prevenir el esparcimiento do infecciones, todas las peronas que entren e esta habitacion tienen que:
HAND HYGIENE
Hygiene De Las Manos
SURGICAL MASK
Inmate(s) wear mask when persons enter
Mascara facial
GLOVES
Guantes
GOWN for close contact
Bata
EYE PROTECTION
Protección para los ojos
Exhibit EE page 198

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 199 of 229 Page ID #:1108
Stop the Spread of Germs

Help prevent the spread of respiratory diseases like COVID-19.

Avoid close contact with people who are sick.

Cover your cough or sneeze with a tissue, then throw the tissue in the trash.

Clean and disinfect frequently touched objects and surfaces.
Avoid touching your When in public, wear a cloth eyes, nose, and mouth. face covering over your
nose and mouth.
Stay home when you are sick, except to get medical care.
Wash your hands often with soap and water for at least 20 seconds.
cdc.gov/coronavirus
316351-A April 7, 2020 9:58 AM
Exhibit EE page 199

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 200 of 229 Page ID #:1109
Hands that look clean can still have icky
germs!
Wash Your Hands!

This material was developed by CDC. The Life is Better with Clean Hands campaign is made possible by a partnership between the CDC Foundation, GOJO, and Staples. HHS/CDC does not endorse commercial products, services, or companies.

Exhibit EE page 200

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 201 of 229 Page ID #:1110
¡Aunque las manos se vean limpias pueden tener microbios
asquerosos!
¡Lávate las manos!

Este material fue elaborado por los CDC. La campaña “La Vida es Mejor con las Manos Limpias” es posible gracias a una asociación entre la Fundación de los CDC, GOJO Industries y Staples. Los CDC y el HHS no respaldan productos, servicios ni empresas comerciales.

Exhibit EE page 201

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 202 of 229 Page ID #:1111
DETENGA LA PROPAGACIÓN DE LOS MICROBIOS

Ayude a prevenir la propagación de enfermedades respiratorias como el COVID-19

Evite el contacto cercano con las personas enfermas.

Cúbrase la nariz y la boca con un pañuelo desechable al toser o estornudar y luego bótelo a la basura.

Limpie y desinfecte los objetos y las super cies que se tocan frecuentemente.
Evite tocarse los ojos, la nariz y la boca.
Quédese en casa si está enfermo, excepto para buscar atención médica.
Lávese las manos frecuentemente con agua y jabón por al menos 20 segundos.
cdc.gov/COVID19-es
314915-B ﻿
Exhibit EE page 202

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 203 of 229 Page ID #:1112
Information for all STAFF

Cloth Face Coverings
Help Slow the Spread of COVID-19
 Based on guidance from the CDC, the BOP now recommends all staff wear cloth face coverings.
 All staff will receive a cloth face covering.  This covering is re-useable and should not be thrown away.  It is still important to maintain social distancing of 6 feet, when possible.
How to Wear a Cloth Face Covering
 Make sure it fits snugly but comfortably against the side of the face. Secure with ties or ear loops.
 Use a cover with multiple layers of fabric but make sure it allows for breathing without restriction.
 It should withstand laundering and machine drying without damage or change to shape.
 Be careful not to touch your eyes, nose, or mouth when removing and wash hands immediately after.
 Do not put used face coverings where others can touch them.  Do not touch or use anyone else’s face covering. Assume used
masks are contaminated until they are laundered. Keep a bag with you to store your face covering if you will be taking it off in the car or a non-social space.  If you take off your face covering (i.e. to eat) and then put it back on, ensure the outside stays on the outside (consider marking the outside or inside).
Routinely Wash Cloth Face Coverings
 The cover should be washed before the first use.  It is recommended that staff wash cloth face coverings at home after each
shift. They can be washed with other clothing.  Launder items using the warmest water setting and dry completely.  Clean and disinfect clothes hampers or use a liner that can be washed or
thrown away.

Updated 4-11-2020

Exhibit EE page 203

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 204 of 229 Page ID #:1113
SHARE FACTS ABOUT COVID-19

Know the facts about coronavirus disease 2019 (COVID-19) and help stop the spread of rumors.

FACT Diseases can make anyone sick

1

regardless of their race or ethnicity.

Fear and anxiety about COVID-19 can cause people to avoid or reject others even though they are not at risk for spreading the virus.

FACT For most people, the immediate risk of

2

becoming seriously ill from the virus that causes COVID-19 is thought to

be low.

Older adults and people of any age who have serious underlying medical conditions may be at higher risk for more serious complications from COVID-19.

FACT Someone who has completed

3

quarantine or has been released from isolation does not pose a risk of

infection to other people.

For up-to-date information, visit CDC’s coronavirus disease 2019 web page.

CS 315446-A 03/16/2020

FACT There are simple things you can
4 do to help keep yourself and others healthy.
• Wash your hands often with soap and water for at least 20 seconds, especially after blowing your nose, coughing, or sneezing; going to the bathroom; and before eating or preparing food.
• Avoid touching your eyes, nose, and mouth with unwashed hands.
• Stay home when you are sick.
• Cover your cough or sneeze with a tissue, then throw the tissue in the trash.

FACT You can help stop COVID-19

5

by knowing the signs and symptoms:

• Fever • Cough

• Shortness of breath

Seek medical advice if you

• Develop symptoms

AND

• Have been in close contact with a person known to have COVID-19 or if you live in or have recently been in an area with ongoing spread of COVID-19.

cdc.gov/COVID-19
Exhibit EE page 204

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 205 of 229 Page ID #:1114
Stop the spread of germs that can make you and others sick!
Cover your mouth and nose with a tissue when you cough or sneeze. Put your used tissue in the waste basket.

You may be asked to put on a facemask to protect others.

If you don’t have a tissue, cough or sneeze into your upper sleeve or elbow, not your hands.

Wash hands often with soap and warm water for 20 seconds. If soap and water are not available, use an alcohol-based hand rub.

CS208322
Exhibit EE page 205

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 206 of 229 Page ID #:1115
Be A Germ-Buster

Minnesota Department of Health Food Safety Center 625 N Robert St, PO Box 64975, St. Paul, MN 55164 651-201-5414, TDD/TTY 651-201-5797, www.health.state.mn.us

Adapted with permission from Washington State Department of Health
Exhibit EE page 206

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 207 of 229 Page ID #:1116
Exhibit EE page 207

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 208 of 229 Page ID #:1117

CORONAVIRUS DISEASE 2019

- (COVID-19)

~

Symptoms of COVID·19

Exhibit EE page 208

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 209 of 229 Page ID #:1118
Exhibit EE page 209

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 210 of 229 Page ID #:1119

CORONAVIRUS DISEASE 2019

- (COVID-19)

~

Symptoms of COVID·19

Exhibit EE page 210

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 211 of 229 Page ID #:1120

U.S. Department of Justice
Federal Bureau of Prisons Federal Correctional Complex

Office of the Warden
MEMORANDUM TO ALL STAFF

Lompoc, California 93436
April 14, 2020

FROM: SUBJECT:

~ v~~

ensee, Acting Complex Warden

COVID-19 UPDATE: PHASE SIX (6)

Attached is the BOP's Phase Six Action Plan. Please review it at your earliest opportunity . Highlights include:
• Extending previously imposed measures until May 18, 2020;
• Compartmentalization of staff to limit working at different facilities, which we recently completed with our rosters, which will begin no later than April 15, 2020; if after this date you believe you are assigned to a post that is inconsistent with this plan, please let your supervisor know;
• Deploying Secondary Law Enforcement Staff, who we are already here helping us, with more on the way; please welcome them warmly as they are willing to be away from their loved ones to lend a hand to their fellow BOP staff;
• Personal Protective Equipment (PPE) is a priority for everyone, and FCC Lompoc is being prioritized for additional shipments; if you or an inmate need replacement{s), let your chain of command know immediately so these needs can be met;
On a separate note, our staff health screening site appears to be working , but there is always room for improvement . We have added six feet social distancing signs to remind staff to practice social distancing from the moment you park and exit your vehicle, to until you return to your vehicle. Remember that wearing your mask enhances the measure of social distancing, so you are encouraged to wear them regularly. Thank you for your continued efforts during this unprecedented time, as your-resilience has not gone . unnoticed.

Exhibit FF page 211

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 212 of 229 Page ID #:1121
U.S. Department of Justice
Federal Bureau of Prisons

MEMORANDUM FOR ALL CHIEF EXECUTIVE OFFICERS

Washlngtan, D.C. 20534
April 13, 2020

FROM: SUBJECT:

ANDRE MA EVOU~N, ACTING ASSISTANT DIRECTOR CORRECTIONAL PROGRAMS DIVISION
~ L. CRISTINA GRIFFITH, ASSISTANT DIRECTOR HUMAN RESOURCE MANAGEMENT DIVISION
CORONAVIRUS (COVID-19} PHASE SIX ACTION PLAN

To ensure comprehensive understanding of the BOP's COVID-19 Phase Six Action Plan, we reiterate herein previously disseminated guidance along with new measures for implementation in managing the evolving pandemic. Effective immediately, the following preventative measures are mandated for all Bureau locations.
EXTENSION OF PHASE FIVE ACTION PLAN:
Effective, Monday, April 13, 2020, the Bureau will continue its nationwide action as described in the Phase 5 Action Plan, to minimize movement and decrease the spread of the virus. This extension which applies to medical screening, limited inmate gathering, daily rounds, limited external movement, and fit testing - will remain in place until May 18, 2020, at which time the action will be reevaluated.
HIRING:
Hiring initiatives are paramount to the Bureau's mission to address shortages in key positions and locations. Emphasis must be placed in prioritizing the hiring of Correctional Officers. Wardens will ensure Human Resource Departments are fully engaged in processing new applicants into the agency. As a reminder, all applicants who enter the institution should undergo the same COVID-19 screening and temperature check as staff, contractors, and visitors.
TRAINING:
All staff training is suspended through May 31, 2020, with the exception of "Introduction to Correctional Techniques - Phase I" , and any training that can be conducted remot ely to fulfill ongoing mandatory
1

Exhibit FF page 212

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 213 of 229 Page ID #:1122

credentialing requirements that cannot be waived during this pandemic. Any other exceptions to this suspension must be routed through the appropriate Assistant Director or Regional Director, and submitted to the Deputy Director for final ,pproval.

OFFICIAL STAFF TRAVEL:

Official staff travel, with the exception of the deployment of staff to institutions to assist with the COVID-19 pandemic, Is suspended through May 31, 2020. Any exceptions to this suspension must be routed through the appropriate Assistant Director or Regional Director.

SECONDARY LAW ENFORCEMENT STAFF:

Secondary Law Enforcement Officers located throughout the agency will be deployed to assist with staffing shortages in field locations. Wardens requiring supplemental staff to cover vacancies will s~bmit a written request to their Regional Emergency Operations Center (EOC). Once approved by the Regional Director, the request will be forwarded to the National EOC for scheduling, notifications, and travel arrangements.

LOGISTICS:

Wardens must continually assess and account for their supply and equipment inventories and plan for

an extended crisis period by increasing normal supply Inventories to the greatest extent possible.

Emphasis for assessment should be placed on Personal Protective Equipment (PPE), fqod, medicine,

cleaning supplies, and emergency-related equipment. PPE supp_lies may be requested first through the

region and then from the National EOC.

·

SOCIAL VISITS:

Social visits will continue to be suspended until May 18, 2020, at which time the suspension will be reevaluated.

LEGAL VISITS:

Legal visits will continue to ·be suspended until May 18, 2020, at which time the suspension will be reevaluated.
Wardens are reminded that access to legal counsel remains a paramount requirement and must be accommodated to the maximum extent practicable. Although legal visits are suspended until May 18~
2020, case-by-case accommodations for in-person visits should be made at the local level. Attorneys should be encouraged. to make requests through each facility's main email address found at www.bop.gov, telephonically, or by contacting the appropriate Consolidated Legal Center.
If approved for an in-person visit, the attorney must undergo a COVID-19 screening and temperature check, consistent with the procedures in place for staff, contractors, and visitors. Anyone with COVID-19 symptoms or a temperature ~ 100.4°F will not· be allowed to enter the facility. When performing screening activities, staff or contractors will wear PPE according to Bureau and CDC guidance.

2

Exhibit FF page 213

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 214 of 229 Page ID #:1123
The authority to approve and/or deny legal visits will not be delegated below the Warden and/or his/her designee. Facilities should offer as an alternative a legal visit via video conferencing. The BOP's VTC infrastructure can support a connected call through the Administrative Office of the US Courts bridge and can connect to external callers using WebEx or Jabber. If your field site has questions about how to do so, the local IT staff may contact the Computer Services and Administration Branch in Central Office.
CONTRACTORS:
Contractors performing essential services or necessary maintenance on essential systems will continue to be allowed to enter the facility, and must undergo a COVID-19 screening and temperature check prior to entry. Anyone with COVID-19 symptoms or a temperature ~ 100.4°F will not be allowed to enter the facility. When performing screening activities, staff or contractors will wear PPE according to Bureau and CDC guidance.
VOLUNTEERS:
Volunteer visits will be suspended until May 18, 2020, at which time the suspension will be reevaluated. Alternate means of communication, to include telephone calls and video conferences, may be considered for inmates who request to speak with a religious advisor.
QUARANTINE AND ISOLATION:
Quarantine will be used for the following reasons for Inmates who are asymptomatic for COVID-19: 1) All new admissions to a Bureau facility and all returns to a Bureau facility. • This Includes all new intakes, detainees and commitments, writ returns, parole violators, and hospital returns, regardless of their mode of arrival (e.g., voluntary surrender, U.S. Marshals Service/ Justice Prisoner and Alien Transportation Service, Customs and Border Patrol, and Immigration and Customs Enforcement). • Bureau Intra-system transfers who have already been in Bureau population more than 14 days should be screened and temperature checked for COVID-19 before departure. They ordinarily do not require quarantine at their gaining facility if there are no active or · suspected COVID-19 cases at the sending facility, and they did not come In contact with any other inmates from another facility during transfer to the gaining facility. 2) All close contacts of a confirmed or suspected case of COVID-19. 3) All inmates releasing to a Residential Reentry Center (RRC), Home.Confinement (HC), or Good Conduct Time/3621e/Full Term release.
At the time of placement in Quarantine, Inmates will have a COVID-19 symptom screening and a temperature check. Those with COVID-19 symptoms or a temperature ~ 100.4°F will be placed in Isolation. All Inmates In Isolation will be placed In a single cell. Any deviations from this housing will be Immediately reported to the Regional and National EOCs. All Inmates In Quarantine or Isolation will be monitored and managed according to Bureau and Centers for Disease Control and
3
Exhibit FF page 214

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 215 of 229 Page ID #:1124
Prevention (CDC) guidance. PPE will be worn by staff when in contact with quarantined or isolated inmates as recommended in this same guidance. Quarantine is ordinarily continued for 14 days unless the quarantined inmate becomes symptomatic or Is cohorted with someone who becomes symptomatic. Criteria for release from isolation for COVID-19 may be determined using a test-based or a symptom-based strategy. Using a test-based strategy, an inmate may be released from isolation when:
• Fever has resolved without the use of fever-reducing medications, and • Respiratory symptoms have Improved, and • A molecular test for Sars-CoV-2 is negative on two occasions at least 24 hours apart. Using a symptom-based strategy, an inmate may be released from isolation when: • Fever has resolved for 72 hours without the use of fever-reducing medications, and • Respiratory symptoms have improved for at least 72 hours, and • Seven days or more have passed since the onset of symptoms.
EXIT SCREENING OF INMATES:
will All inmates be screened .for COVID-19 symptoms and undergo a temperature check prior to leaving
the facility. Inmates with COVID-19 symptoms or a temperature~ 100.4°F will be placed in isolation. All staff or contractors who perform screening activities will wear PPE according to Bureau and, CDC guidance.
OUTSIDE TRIPS FOR HEALTH CARE:
Outside trips for health care should be limited to urgent and emergent health conditions. All routine outside health care should be postponed when clinically appropriate to do so.
PERSONAL PROTECTIVE EQUIPMENT:
Appropriate PPE for COVID-19 must be worn by staff or contractors according to Bureau and CDC guidance arid may include gown, gloves, surgical mask or N-95 respirator, and face shield or goggles, depending on the situation. Recommended PPE guidance may be found at http://sallyport.bop.gov/co/hsd/lnfectious disease/covld19/covid19 guidance.isp#l 5
FACE COVERINGS:
All staff and inmates will be issued and strongly encouraged to wear an appropriate face covering when in public areas when social distancing cannot be achieved.
FOOD SERVICE:
Institutions with active COVID-19 transmission (especially Care Level 3 and 4 Institutions) should satellite feed all inmates in their units. Meals, eating utensils, and drink-ware should only be served by staff
4
Exhibit FF page 215

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 216 of 229 Page ID #:1125
wearing proper PPE. When meals are being distributed, a distance of six feet between inmates should be observed.
INFECTION PREVENTION AND CONTROL PRACTICES:
Rigorous infection prevention and control practices are essential to contain and mitigate the spread of COVID-19. These practices include identifying symptomatic inmates as early as possible by assessing for COVID-19 symptoms and conducting a temperature check at intake screening, exit screening, during a contact investigation, and broader screening initiatives, (e.g., daily screening or other methods of enhanced surveillance at institutions affected by COVID-19, in consultation with the Regional Quality Improvement/ Infection Prevention and Control Consultant). Institutions should also encourage early reporting of symptoms by inmates and provide them opportunities for medical evaluations. When indicated, a contact investigation should be performed for cases of COVID-like symptoms, in consultation with the Regional Quality Improvement/ Infection Prevention and Control Consultant. Isolation is mandatory for any inmate with COVID-like symptoms. PPE must be worn in accordance with CDC guidance. Recommended guidance can be found at http://sallyport.bop.gov/co/hsd/infectious disease/covid19/covid19 guidance.isp#l 5
Good hand and health hygiene practices are strongly encouraged and include washing hands regularly with soap and water for at least 20 seconds, covering a cough or a sneeze, avoiding touching the face or shaking hands, limiting contact with high touch surfaces, and staying home when sick. Social distancing should be practiced whenever possible. Strategies for accomplishing this should be evaluated, especially in open bay/ barracks-style living quarters. At all institutions, compartmentalization of staff and inmate movement will continue to help slow the cross-contamination of work spaces and housing units. This restriction includes limiting supervisor and manager movements for rounds to specific locations. During this period, staff post assignments shall not be changed unless to fill behind a vacant post. Changes in shift hours is permitted provided the shift location remains the same. .Regular cleaning and disinfection of units and high touch surfaces should be emphasized to the inmate population. Wardens must ensure cleaning supplies are readily available for all inmates. Institutions wit~out any known COVID-19 cases should take proactive infection prevention and control mea~ures~ while institutions with COVID-19 cases will need to modify delivery of health care services in accordance with guidance from the Bureau Medical Director.
PANDEMIC PREPAREDNESS:
All Institutions should continue to review and update pandemic plans to include identifying locations for quarantine and isolation of potentially large numbers of inmates, purchasing appropriate supplies, and planning for potentially severe staffing shortages and moderate-to-severe disruptions of normal operations. All institutions should make contact with local health authorities and community health resources to plan for limited or widespread institution transmission of COVID-19.
5
Exhibit FF page 216

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 217 of 229 Page ID #:1126
FIT TESTING:
In the March 31, 2020 Phase Five memo, all positions within the agency were mandated to comply and participate in the respiratory protection program as stated in Program Statement 1600.11, Chapter 3 Section 2, Respiratory Protection. It is mandatory that all staff complete the training to ensure maximum numbers of staff are available on each shift to meet the anticipated needs throughout this public health emergency. This participation includes the completion of the "OSHA Medical Questionnaire" for medical review and clearance followed by training and proper fit-testing for the following respirators:
• N-95. • Scott M-120 full face respirator (Gas Mask). • Scott AV-3000 sure seal face piece (Scott Air-Pak 75 SCBA). Upon completion of the initial training and fit-testing, staff must maintain a state of readine~s to use a respirator at all times, tQ include absence of facial hair that would interfere with the seal of the respirator. Failure to do so may result in disciplinary action. This requirement will remain in effect throughout the duration of the public health emergency. Individuals who are unable to obtain medical clearance must request accommodation, in accordance with Program Statement 3720.03, Reasonable Accommodation Program.
LIMITED MOVEMENT:
The Bureau will continue to coordinate with the U.S. Marshals Service to significantly decrease incoming movement. Strategic Institutions have been identified for mandatory movement needs; these locations will include all detention centers and key locations located throughout the country to accommodate population increases. T~ese areas will serve as quarantine sites until such time inmates can be moved to their final destination. Internal movement will continue to be suspended. Exceptions to this restriction are legally-required .transfers related to forensic studies, writs, Interstate Agreements on Detainers, medical or mental health reasons, and RRC/HC placements. Medical trips for treatment will still continue, as necessary (see Outside Trips for Health Care section above). Any exceptions must be routed thr_ough your Regional Director for approval by the Assistant Director, Correctional Programs Division.
QUESTIONS:
If staff have questions about COVID-19, they may reach out to the agency at the following email box: COVID19Questions@bop.gov. We appreciate your assistance in this significant phase of our COVID-19 response.
6
Exhibit FF page 217

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 218 of 229 Page ID #:1127

U.S. Department of Justice
Federal Bureau of Prisons Federal Correctio11al Complex

Office of the Warden

Lompoc, California 93436

April 17, 2020

MEMORANDUM TO ALL STAFF AT FCC LOMPOC
B.Gf-

FROM:

B . van Blanckensee, Acting Comp l ex Warden

SUBJECT :

Enhanced COVID- 1 9 Mitigation Measures

As we have the highest number of positive COVID-19 inmate cases in the Bureau of Prisons (BOP), and we are among the highest with positive staff cases, I have decided that more aggressive measures are necessary to ensure the health and safety of all concerned. With recent guidance from Regional and Central Office Public Health Service (PHS) staff, I am confident our enhanced measures, together with your amazing efforts, wil l get us past the next hurdles . I am attaching three memos, each of which are tailored to the specific inmate popul ation. I expect each of you to become familiar with these procedures so we can uniforml y e n force these new measures, without exception. By working together, we wi ll dramatical l y i mprove ou r chances to battle COVID - 19. Highl i ghts of our enhanced mit i gat i on measures include:
• Enhanced modified operations at the FCI Low effective immediately
• Enhanced modified operations at the FCI Medium effective April 20, 2020
• Enhanced modified operations at the Lompoc Camps effective April 20, 2020
• Enhanced modif ied operations to last a minimum of 14 days
• No phone or compu ter access
• Inmate movement restricted
• Inmate wearing masks will be mandatory and masks cannot be altered
• Inmate c l eanliness will be mandatory
• Staff encouraged to u se inmate di sci pline as a management tool

Exhibit GG page 218

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 219 of 229 Page ID #:1128

U.S. Department of Justice Federal Bureau of Prisons Federal C,>rrectio11al Complex

Office of the Wan:ten

Lompoc, California 93436
April 17, 2020

MEMORANDUM TO FCI LOMPOC MEDIUM INMATES

8.Vl!l

FROM:

B. vo; ~?an'ctensee, Acting Complex Warden

SUBJECT:

Enhanced COVID-19 Mitigation Efforts

Unf~rtunately, our efforts to encourage inmates to practice social distancing and wear masks have not proven effective. We are still getting confirmed cases of COVID-19 and more aggressive measures are necessary. As a result, the following measures are effective April 20, 2020, for a period of at least 14 days:

• Every inmate~ wear their Bureau of Prisons (BOP} issued mask at a11 times. Every inmate has been issued surgical and cloth masks, and a replacement mask is available upon request;
• Failure to wear your mask or altering your mask may result in discipline; this memo constitutes a standing order for you to wear your mask at all times; staff may also order you to wear your mask;
• Every inmate has access to their own disinfectant with paper towels to keep their housing area clean. If you do not keep your area sufficiently clean after you receive your supplies, you may be disciplined. If you need more supplies, they are readily available;
• Movement outside your cell will be restricted;
• You are prohibited from sharing your personal items;
• Hygiene items will be provided on a weekly basis;
• Laundry exchange will be conducted weekly for institution-issued towels, sheets, blankets, boxers, and socks.
• Commissary will remain at the $50 spending limit, but, soft-drinks will not be available for purchase;
• Meals will be delivered to your cells for consumption;
• Phones for social calls and access to computers are suspended; • Mail services will remain unaffected;
• If you have an imminent legal need to access the law library or to make a legal phone call, submit a Request to Staff Member to staff who will email to BOP legal for evaluation

Exhibit GG page 219

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 220 of 229 Page ID #:1129

U.S. Department of Justice Federal Bureau of Prisons Federal Correctional Complex

Office of/he Warden

Lompoc, California 93436

April 17, 2020

MEMORANDUM TO FCI LOMPOC LOW INMATES

FROM:

~ -<M-
B. van Blanckensee, Acting Complex Warden

SUBJECT:

Enhanced COVID-19 Mitigation Efforts

Unfortunately, our guidance for better sanitation, to practice social distancing, and encouraging inmates to wear masks has not proven effective. As a result, we now have confirmed COVID-19 cases at the FCI Lompoc Low, with more inmates displaying symptoms. As a result, the following measures are effective immediately for a duration of at least 14 days:
• Every inmate must wear their Bureau of Prisons (BOP) issued mask at all times. Every inmate has been issued surgical and cloth masks, and a replacement mask is available upon request;
• Failure to wear your mask or altering your mask may result in discipline; this memorandum constitutes a standing order for you to wear your mask at all times; staff may also order you to wear your mask;
• Every inmate has been provided their own disinfectant with paper towels to keep their housing area clean. If you do not keep your area sufficiently clean, you may be disciplined . If you need more supplies, they are readily available;
• You are prohibited from sharing your personal items; • Movement within the unit must only be for essential needs,
like using the restroom or seeking staff assistance;
• Phones for social calls and access to computers are suspended;
• Mail services will remain unaffected;
• If you have an imminent legal need to access the law library or to make a legal phone call, submit a Request to Staff Member to staff, who will email BOP legal for evaluation;
• Commissary is suspended;
• Food Services, Medical Services , and Laundry Services wi ll remain unaffected

Exhibit GG page 220

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 221 of 229 Page ID #:1130

U.S. Department of Justice Federal Bureau of Prisons Federal Correctio11al Complex

Office of the Warden

Lompoc, California 93436
April 17, 2020

MEMORANDUM TO ALL LOMPOC CAMP INMATES

FROM:

~. (1;Z_ .
B. von Blanckensee, Acting Complex Warden

SUBJECT:

Enhanced COVID-19 Mitigation Efforts

Unfortunately, our efforts to encourage sanitation, social distancing, and for inmates to wear masks have not proven effective. We are still getting confirmed cases of COVID-19 from the camps, and more aggressive measures are necessary. As a result, the following measures are effective April 20, 2020, for a period of at least 14 days:

• Every inmate~ wear their Bureau of Prisons (BOP} issued mask at all times. Every inmate has been issued surgical and cloth masks, and a replacement mask is available upon request;
• Failure to wear your mask or altering your mask may result in discipline; this memorandum constitutes a standing order for you to wear your mask at all times; staff may also order you to wear your mask;
• Every inmate has access to their own disinfectant with paper towels to keep their housing area clean. If you do not keep your area sufficiently clean after you receive your supplies, you may be disciplined. If you need more supplies, they are readily available;
• Movement outside the housing unit is suspended unless expressly authorized by staff; being outside the housing unit without staff authorization may result in discipline;
• You are prohibited from sharing your personal items;
• Phones for social calls and access to computers are suspended;
• Mail services will remain unaffected;
• If you have an imminent legal need to access the law library or to make a legal phone call, submit a Request to Staff Member to staff who will email to BOP legal for evaluation;
• Commissary, Food Services, Medical Services, and Laundry Services will remain unaffected

Exhibit GG page 221

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 222 of 229 Page ID #:1131

FOR IMMEDIATE RELEASE April 20, 2020

U.S. Department of Justice Federal Bureau of Prisons
Contact: Office of Public Affairs 202-514-6551

***Media Statement*** COVID-19 Response at FCC Lompoc
Lompoc, CA: The Federal Bureau of Prisons has been coordinating COVID-19 response efforts using subject-matter experts both internal and external to the agency, including guidance and directives from the World Health Organization (WHO), the Centers for Disease Control and Prevention (CDC), the Office of Personnel Management (OPM), the Department of Justice (DOJ), and the Office of the Vice President.
The Federal Correctional Complex (FCC) in Lompoc, California, is following the multi-agency guidance and is actively working with the Santa Barbara County Public Health Department and local hospitals to mitigate the spread of COVID-19 for both staff and inmates. Prior to reporting its first case of COVID-19 on March 26, 2020, FCC Lompoc has followed the CDC’s best practices for correctional and detention facilities, and immediately comported as guidance became available to stem the spread of the virus within the Complex.
To alleviate the strain on local hospitals and the community, FCC Lompoc is negotiating a contract for an on-site mobile hospital equipped with hospital beds and medical personnel. The mobile hospital will be stationed inside a decommissioned factory within the confines of the medium-security component of the Complex, where the majority of COVID-19 cases are located. The Army Corps of Engineers completed an infrastructure assessment last week and contractors conducted a site visit today. In preparation for the hospital installation, FCC Lompoc staff retrofitted 10 offices within the space to accommodate double-occupancy negative pressure rooms for the more serious cases.
Staff continue to follow a comprehensive management approach to infection prevention and control. This includes educating staff and inmates on cleaning/disinfecting and hygiene practices; furnishing soap and cleaning supplies throughout the Complex in common areas, restrooms, work sites, and inmate cells; screening 100% of all personnel entering the institutions, including symptoms and temperature checks; testing inmates when clinically indicated, following isolation and quarantine protocols in accordance with CDC and public health directives, and providing clinical care for confirmed and suspected cases. To further protect the public, all inmates releasing to the community are quarantined for 14 days and screened prior to their scheduled departure. For court orders requiring immediate release, inmates are screened prior to release.
FCC Lompoc has an ample supply of Personal Protective Equipment (PPE). Staff are provided the appropriate level of PPE when entering isolation/quarantine units and during enhanced staff screenings (i.e., masks, gown, eye protection, gloves). Cloth face-coverings were issued to all staff and inmates, and CDC informational flyers are posted throughout the Complex on hand washing, coughing/sneezing in a sleeve or tissue, and no physical contact.
Exhibit HH page 222

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 223 of 229 Page ID #:1132
Media Statement COVID-19 Response at FCC Lompoc April 20, 2020 Page 2 of 2 As part of a nationwide system, we are able to leverage and transfer resources from other institutions. To date, over 60 medical and non-medical staff resources were deployed to FCC Lompoc to assist with security for the inmate population; clinical care, administrative oversight, and facility modifications for the mobile hospital. In following the Attorney General’s directives, staff are identifying and reviewing inmates for release to home confinement. Inmates do not need to apply for home confinement consideration. Case management staff are reviewing all inmates to determine which ones meet the criteria established by the Attorney General. FCC Lompoc continues to be deeply concerned for the health and welfare of inmates entrusted to our care and for the staff who live in the surrounding communities. Our staff are vested in ensuring public safety and continue to diligently and safely carry out their responsibilities. Our highest priority continues to be mitigating the spread of the COVID-19 virus. The Bureau of Prisons will continue to provide daily updates and information on actions related to COVID-19 at www.bop.gov/coronavirus/index.jsp Additional information about the Bureau of Prisons can be found at www.bop.gov.
###
Exhibit HH page 223

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 224 of 229 Page ID #:1133
Frequently Asked Questions for FCC Lompoc ------ April 29, 2020
Q: Is COVID-19 affecting my RRC date?
A: Because inmates must successfully complete 14 days of quarantine before they can be released from the institution to go to their RRC, this process has caused delays. To help facilitate RRC placements, those with a RRC date within the next 60 days will be given priority placement in the pre-release quarantine unit. We are constantly exploring options to expand the capacity of our housing for prerelease quarantines.
Q: Does everyone have to go through this 14 day quarantine period?
A: All CARES Act home confinement placements, and RRC placements, must successfully complete the 14 days of quarantine before they can be released from the institution. The only inmates who do not have to complete this quarantine period are those with immediate release orders or end-ofsentence releases. Inmates with immediate release orders may be subject to judicial conditions, such as to shelter-in-home or self-quarantine; BOP will inform the appropriate health officials if any immediate releases have flu-like symptoms or tested positive for COVID-19, so they can take whatever action they deem necessary.
Q: What is going on with FCC Lompoc’s efforts to review inmates under the CARES Act, and the Attorney General’s guidance which lets BOP put inmates in home confinement to help address the COVID-19 situation?
A: FCC Lompoc has staff focused on reviewing all inmates who meet the criteria provided by the Attorney General, with guidance from Central Office. As of the date of this FAQ, 61 inmates at FCC Lompoc have been found suitable for home confinement under the CARES Act. Our staff are not done reviewing inmates, as new guidance was provided on 4/24/20.
Q: What is the current criteria/guidance for the CARES Act, from the Attorney General, and from Central Office?
A: As of the date of this FAQ, our staff are prioritizing 1) inmates who have served at least 50% of their sentence, 2) inmates who have 18 months or less remaining to be served and have served at least 25% of their sentence, and 3) inmates who are at a minimum/low security institution. Staff will then look for inmates with a) clear conduct (no discipline) for the last 12 months; b) no violence, sex offense, or terrorism (prior or current); c) whether there’s a verifiable release plan; d) consider PATTERN score with priority to minimums; and e) consider age and vulnerability to COVID-19 based on CDC guidelines.
Q: Is there anything I need to do to be considered for home confinement under this program?
A: No. Staff are already reviewing every inmate at FCC Lompoc based on the priorities noted above. If you are found suitable and it is your turn to be notified so release planning can be explored, you will be notified. If you are not found suitable, or, if staff are working on other inmates, you will NOT be notified. Because of the volume of work involved in identifying and processing suitable inmates for home confinement, there is simply no practical way to notify inmates that they do not meet the criteria, or, if they do, and it’s just not their turn to be processed yet. Also, keep in mind that guidance from the Attorney General and Central Office can change, and if it does, FCC Lompoc will take a fresh look as directed.
Exhibit II page 224

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 225 of 229 Page ID #:1134

U.S. Department of Justice Federal Bureau of Prisons

FOR IMMEDIATE RELEASE May 4, 2020

Contact: Office of Public Affairs 202-514-6551

Hospital Care Unit at FCC Lompoc
Lompoc, CA: In under four weeks, the Federal Correctional Complex (FCC) in Lompoc, California, finalized construction of a Hospital Care Unit (HCU) inside the prison walls in response to the COVID-19 pandemic. The HCU is located within a decommissioned Prison Industry factory, inside the confines of the medium-security component of the Complex, otherwise known as USP Lompoc. The transformation from office space to working hospital included a complete renovation, gutting the existing floor and wall coverings, replacing duct work, upgrading electric lines, installing showers, and building a Nurses Station.
The concept to build the hospital began on April 9, 2020, after the institution’s first positive COVID-19 inmate case was identified on March 31, 2020. Based on the size of the inmate population, the epidemic curve projected a high volume of cases, which would require a level of hospitalization the local community would be unable to meet.
The HCU is comprised of ten (10) double-occupancy, acute care treatment rooms with negative pressure, Patient Intake Room, Nurses Station, Pharmacy, Linen Exchange Room, Biohazard Room, and Medical Supply & Storage. Several areas were retrofitted to accommodate an Officer’s Station, a Staff Lounge, and Staff Locker Room, complete with shower stalls for use to mitigate the risk of exposure to infectious diseases, including COVID-19.
FCC Lompoc negotiated a contract for medical personnel, including Doctors, Registered Nurses, Paramedics, Pharmacist, Physician Assistants, Nurse Assistants, and a Clinical Manager, who will work in conjunction with FCC Lompoc Health Services staff. Cases normally require outside hospitalization will be treated within the prison, minimizing the impact on the community and further ensuring public safety.
FCC Lompoc and Bureau of Prisons staff from throughout the Western Region are commended for the extraordinary amount of work and completing the project in an unprecedented amount of time. On Friday, May 1, 2020, a ceremony was held to dedicate the Hospital Care Unit which is scheduled to open on Wednesday, May 6, 2020.
The Bureau of Prisons will continue to provide daily updates and information on actions related to COVID-19 at www.bop.gov/coronavirus/index.jsp
Additional information about the Bureau of Prisons can be found at www.bop.gov.
###
Exhibit JJ page 225

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 226 of 229 Page ID #:1135

U.S. Department of Justice Federal Bureau of Prisons

MEMORANDUM FOR ALL CHIEF EXECUTIVE OFFICERS
~

FROM:

ANDRE MATEVOUSIAN, ACTING ASSISTANT DIRECTOR CORRECTIONAL PROGRAMS DIVISION

L~~
L. CRISTINA GRIFFITH, ASSISTANT DIRECTOR HUMAN RESOURCE MANAGEMENT DIVISION

SUBJECT:

CORONAVIRUS (COVID-19) PHASE SEVEN ACTION PLAN

Washington, D.C. 20534
May 18, 2020

This memorandum describes the BOP's Coronavirus (COVID-19) Phase Seven Action Plan, which includes an extension of previously disseminated guidance along with new measures to implement in the management of the evolving pandemic. Effective immediately, the following preventative measures are mandated for all Bureau locations:
EXTENSION OF PHASE SIX ACTION PLAN:
Effective Monday, May 18, 2020, the Bureau will continue its nationwide action as described in the Phase Six Action Plan, to include measures to minimize movement and decrease the spread of the virus. These restrictions will remain in place through June 30, 2020, at which time the plan will be reevaluated.
MOVEMENT AND TESTING:
The Bureau will continue to coordinate with the U.S. Marshals Service to significantly decrease incoming movement. Three strategic institutions (OKL/VVM/YAZ) have been identified for mandatory movement needs along with all detention centers and jail units throughout the country to accommodate population increases. These locations will serve as testing and quarantine sites until such time that inmates can be moved safely to their final destination. Testing will be carried out in accordance with Abbot ID Now Point of Care testing guidance issued by the Health Services Division.
Internal movement will continue to be suspended. Exceptions to this restriction are transfers related to forensic studies, writs, Interstate Agreements on Detainers, necessary medical or mental health treatment, and RRC/HC placements. Any exceptions must be routed through your Regional Director fo r approval by the Assistant Director, Correctional Programs Division.

Exhibit KK page 226

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 227 of 229 Page ID #:1136
ACCESS TO ELECTRONIC LAW LIBRARIES:
Whenever possible, consistent with social distancing protocols and safe institution operations, inmates should be permitted access to the Electronic Law Library (ELL) at the discretion of the Warden at each facility. We recommend that a schedule be established to permit fair and timely access to ELL terminals upon inmate request, and that the use of such schedu le be made known to inmates at the facility.
STAFF TESTING:
Currently, we are unable to offer staff testing at the institution. However, we encourage Wardens to identify and publish possible testing sites in the community, where interested staff may be tested.
QUESTIONS:
If staff have questions about COVID-19, they may reach out to the agency at the following email box: COV ID 1 9 Q u e s t io n s @ b o p .g o v. We appreciate your assistance in this significant phase, and all phases of our COVID-19 response.
Exhibit KK page 227

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 228 of 229 Page ID #:1137
Frequently Asked Questions for FCC Lompoc ------ May 11, 2020 Q: Has FCC Lompoc improved its ability to quarantine inmates who are scheduled for transfer to a RRC? A: Yes. FCC Lompoc has expanded the size of its pre-release quarantine area three-fold. In addition,
FCC Lompoc may supplement the 14-day quarantine period with on-site testing for COVID-19, which should provide additional avenues to ensure that scheduled RRC dates are not unnecessarily disrupted. Of course, inmates who test positive for COVID-19 will necessarily have their transfer date delayed. Full-term releases will still happen even if an inmate tests positive for COVID-19, but the county health officials will be notified so they may take whatever action they deem appropriate upon that inmate’s release from FCC Lompoc. Q: What is the latest guidance that FCC Lompoc has received regarding the CARES Act? A: At the last FAQs dated April 29, 2020, we mentioned that inmates had to have clear conduct within the last 12 months. As of the date of this FAQ for FCC Lompoc, inmates who received a 300 or 400 series incident report in the past 12 months may be considered, if in the Warden’s judgment such placement does not create an undue risk to the community. Staff must also confirm the inmate does not have a current detainer. SIS must also review potential inmates to see if they have engaged in violent or gang-related activity in prison. Health Services will also screen inmates to assess if they need frequent and on-going medical care in the next 90 days to ensure such needs can be met in the community. Q: How has FCC Lompoc done with its CARES Act reviews since the last FAQ? A: At the last FAQ, 61 inmates were found suitable under the CARES Act. As of the date of this FAQ, 132 inmates have been found suitable under the CARES Act. Since FCC Lompoc has implemented the CARES Act, 43 inmates have been released from FCC Lompoc through a variety of methods, of which, 18 were based on the CARES Act. By the end of May 2020, FCC Lompoc is expecting to release another 120 inmates, of whom 10 are based on the CARES Act. What this means is that staff are still working on the release plans for the other CARES Act inmates to the best of their ability. At the same time, staff are still reviewing other inmates for CARES Act suitability based on the priority criteria mentioned at the last FAQ. Q: Is there anything I need to do to be considered for home confinement under this program? A: No. Although this question is a repeat from the last FAQ, it bears repeating as duplicative requests are not necessarily productive when staff are doing their best to read every Inmate Request To Staff Member. If you have specific information to provide to your Unit Team that is different than what is in your Central File, like new family contact information, that is certainly welcome.
Exhibit LL page 228

Case 2:20-cv-04450-CBM-PVC Document 25-1 Filed 06/05/20 Page 229 of 229 Page ID #:1138
Frequently Asked Questions for FCC Lompoc ---- June 1, 2020
Q: Has anything changed regarding the way the BOP/FCC Lompoc is handling the 14 day quarantine period before transferring/releasing inmates to a RRC or Home Confinement?
A: The most recent guidance requires additional testing for certain inmates prior to transfer/release from FCC Lompoc to a RRC or Home Confinement. Specifically, inmates who have not tested positive for COVID-19 will be moved into the pre-release quarantine unit inside the USP at least 28 days prior to the transfer/release date. These inmates will be tested prior to the pre-release quarantine period, during this same period, and then again before their transfer/release from FCC Lompoc. Some accommodations may be permissible for inmates whose transfer/release date is coming up within the next 28 days to avoid adversely impacting their transfer/release date, if it is consistent with CDC guidelines. Inmates who previously tested positive for COVID-19 and who have recovered pursuant to CDC guidelines do NOT have to go through these pre-release quarantine procedures, and are subject only to a medical screening prior to transfer/release from FCC Lompoc, which must be successfully passed before transfer/release.
Q: What if I am releasing via Good Conduct Time (GCT) release or through some kind of individually-issued court order, like a Time Served Order or Order for Compassionate Release – do I still have to do the 14 day quarantine?
A: A GCT release, or some individually-issued Order usually means there is a specific date the BOP loses its authority to keep you in custody. However, individually-based Orders may be received too late in the day for the inmate to be processed out that same day, or individually-based Orders may contain language within that order allowing for additional time to complete the quarantine period at FCC Lompoc.
Q: So, if the BOP loses its authority to hold me on a certain date, how can COVID-19 still affect me?
A: BOP still has to test you before you release if you’ve always been negative for COVID-19. So, if you test positive, or are still recovering from a previous positive test for COVID-19, FCC Lompoc will inform Santa Barbara County Public Health officials (SBCPH). If family will drive you to your release destination, SBCPH will issue you and your driver orders to self-quarantine. If you cannot get someone to take you to your release destination, SBCPH will arrange quarantine housing. Either way, you will be subject to state/local laws if you violate orders to selfquarantine. Violating public health laws may also adversely impact your term of Supervised Release.
Q: What is the latest update(s) FCC Lompoc has received regarding the CARES Act?
A: Since the last FAQ was issued on May 11, 2020, FCC Lompoc has not received any new priority-based criteria. However, we have been asked to take a closer look at certain inmates, like those over the age of 65, and those who’s PATTERN scores are “Low” to see if re-review/updates might lower their PATTERN score to a “Minimum” PATTERN score, which would move them up on the priority list. In addition, Central Office continues to review our roster of inmates in order to provide suggestions on who else to reexamine for possible suitability under the CARES Act. The most recent list of suggested FCC Lompoc inmates to look at was received on May 29, 2020.
Q: How is FCC Lompoc doing with transferring inmates out to a RRC or Home Confinement under the CARES Act?
A: As of May 29, 2020, FCC Lompoc staff have identified a total of 184 inmates who were potentially suitable under the CARES Act. While not every inmate identified by staff will receive a RRC or Home Confinement referral due to issues arising from individual cases, staff are doing their best to work through resolvable issues like release plans. Since FCC Lompoc has implemented the CARES Act, 114 inmates have been released through a variety of methods, of whom, 30 inmates were released from FCC Lompoc based on the CARES Act.
Q: Can I get a copy of the CARES Act?
A: A copy of the excerpt from the CARES Act dealing with home confinement, along with the two applicable Attorney General memorandums, and the main Central Office guidance memorandums on the CARES Act as of May 29, 2020, will all be placed in the Law Library for inmate review.
Exhibit MM page 229

 Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 1 of 148 Page ID #:1139

1

DECLARATION OF LAWRENCE CROSS

2 I, Lawrence Cross, do hereby declare and state the following:

3

4 1. I am a National Registered Paramedic employed by the Federal Bureau of Prisons

5

(“BOP”) as a Health Services Administrator (“HSA”). I am currently the HSA at

6

the Federal Correctional Complex in Lompoc, California (“FCC Lompoc”). I

7

have worked for the BOP for approximately six and a half years, and have worked

8

in my current position for approximately two years. As the HSA for FCC Lompoc,

9

I provide administrative oversight over FCC Lompoc’s Health Services

10

Department, which provides medical care to FCC Lompoc inmates through a

11

combination of full-time onsite BOP medical professionals, and through

12

contracted medical specialists and contracted local hospitals. Prior to being a

13

Health Services Administrator, I have been a paramedic since 2010. I have

14

experience handling infectious disease in a prison setting as I have managed a

15

mumps outbreak and been involved in the investigation and management of an

16

active tuberculosis case. Each infectious disease outbreak required testing, contact

17

investigations, intervention, isolation, immunization, and continued monitoring for

18

further spread of the outbreak. My involvement in the mumps outbreak helped

19

contain the outbreak to only 10 cases while coordinating over 1,600 vaccinations

20

for staff and inmates.

21 2. As part of my duties and responsibilities as HSA for FCC Lompoc, I have regular

22

access to various BOP databases, like SENTRY, which is our primary electronic

23

database on BOP inmates, and the BOP electronic medical records (“BEMR”)

24

system. As part of my regular duties and responsibilities, I routinely provide BOP

25

records to Assistant U.S. Attorneys when they need such records to represent the

26

interests of the United States.

27

28

1

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 2 of 148 Page ID #:1140

1 3. The facts set forth in this declaration are provided based on my personal

2

knowledge of events at FCC Lompoc or based on my review of BOP records. If

3

called upon, I would testify as set forth below.

4 4. FCC Lompoc is a federal prison complex which houses male inmates at a United

5

States Penitentiary (USP Lompoc or “LOM”) which operates as a medium

6

security institution and has a minimum security satellite camp including a farm

7

(“Camp”) as well as a Federal Correctional Institution (FCI Lompoc or “LOF”)

8

which operates as a low security institution. For this reason, it is fair to say FCC

9

Lompoc operates three facilities - FCI Lompoc, USP Lompoc, and a Satellite

10

Prison Camp (Camp) which is comprised of the North Camp and the South Camp.

11

FCI Lompoc has military barracks style housing with open bay dorms and four-

12

man cells. USP Lompoc has two-man cells throughout the facility that have barred

13

entry ways. The USP Lompoc Camp, though organizationally part of the USP,

14

stands completely apart from the FCI and the USP, and has no fences or

15

perimeter-based barriers of any kind. The North Camp is comprised of one

16

housing building and the South Camp is comprised of two housing buildings.

17 5. The Health Services Department at FCC Lompoc has a complement of 28 clinical

18

medical staff including three physicians, three mid-level practitioners, four

19

paramedics, one quality improvement/infection control nurse, and several dental,

20

pharmacy, and clerical staff. In addition to the BOP staff, there is one Public

21

Health Services employee who comprises part of the medical team at FCC

22

Lompoc on a regular bases. FCC Lompoc also utilizes local community hospitals

23

and contract providers to meet the emergent and specialized medical needs of the

24

inmate population. As discussed below, as part of the FCC Lompoc response to

25

COVID-19, the BOP contracted for numerous health care providers to man the

26

Hospital Care Unit (HCU) that was constructed.

27 6. As part of my official duties as HSA, in collaboration with the Clinical Director, I

28

provide administrative management of health care to the inmate population. I am

2

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 3 of 148 Page ID #:1141

1

also the primary supervisor for mid-level providers, emergency medical

2

technicians, and nurses. As part of my duties, I am thoroughly familiar with the

3

health care and treatment available throughout BOP institutions and, more

4

specifically, with the care and treatment that is available for inmates with different

5

types of chronic medical conditions. Furthermore, I am thoroughly familiar with

6

the BOP’s response to the national COVID-19 pandemic. I am familiar with FCC

7

Lompoc’s specific response to the pandemic, and I have access to records

8

regarding the institution’s response.

9

PETITIONERS’ MEDICAL STATUS

10 7. Yonnedil Carror-Torres (“Carror-Torres”), Reg. No. 41928-069, is a 24-year

11

old male. He arrived at USP Lompoc on December 30, 2019. He received an

12

intake Health Screening upon his arrival at this time he reported having asthma

13

since childhood but reported no other significant diagnoses. He has a history of

14

asthma and depression.

15

a. BOP Records show Carror-Torres was issued a surgical mask on April 6,

16

2020, and three washable cloth masks on April 14, 2020.

17

b. On April 23, 2020, Carror-Torres was seen in Health Services for sick call

18

complaining of a throbbing headache and a dry cough. He was suspected of

19

having COVID-19 so he was moved from K Unit to H Unit for isolation

20

and was tested for the virus. All inmates were given new surgical masks

21

upon placement in H Unit. At the time of the examination, his respiration

22

was found to be even and unlabored. Labs were drawn and chest x-rays

23

were taken. Petitioner was advised to report any worsening or new

24

symptoms immediately.

25

i. Carror-Torres was examined, his temperature was taken, his pulse

26

was taken, oxygen saturation was measured, and his symptoms were

27

evaluated on a daily basis from April 23rd to May 7th, 2020

28

3

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 4 of 148 Page ID #:1142

1

(excluding May 5th). During that period, Carror-Torres’s temperature

2

was never above 99.2°.

3

ii. The BOP received notice on April 25, 2020, that Carror-Torres’s test

4

was returned as negative indicating no RNA from SARS CoV-2 was

5

detected in the specimen drawn on April 23, 2020.

6

c. On May 6, 2020, Petitioner was examined and was found to have only mild

7

exercise induced tachycardia after he had been running in place for many

8

minutes for exercise. Given the negative test result and no further

9

symptoms, infection with COVID-19 was ruled out as to this Petitioner. He

10

left H Unit and was returned to general population, which is his regularly

11

assigned unit on May 7, 2020.

12 8. I was shown pages 6-7 and 26-27 of the complaint where Petitioner, through

13

counsel, claims he (A) started feeling seriously ill and developed COVID-19

14

symptoms including fever, diarrhea, and body aches on or around April 24, 2020;

15

(B) asked for medical assistance for five days but was ignored; and (C) went into

16

acute respiratory shock and collapsed in his cell only then to be tested and

17

confirmed positive for COVID-19 and had to be put into a medically-induced

18

coma, intubated, and put on a ventilator. There is no evidence in BEMR to

19

support these claims. On the contrary, the records demonstrate no fever during the

20

relevant time and there is no record Petitioner reported symptoms of diarrhea or

21

body aches which he now claims to have had to medical staff.

22 9. Vincent Reed (“Reed”), Reg. No. 27173-016, is a 54-year old male with a

23

history of hypertension, psychiatric disease (depression, schizophrenia) and

24

chronic pain assigned to USP Lompoc. He was examined for a chronic care

25

follow-up on March 6, 2020 at which time his hypertension was found to be well-

26

controlled.

27

a. FCC Lomopc records reveal inmate Reed was issued a surgical mask on

28

April 6, 2020 and three washable masks on April 14, 2020.

4

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 5 of 148 Page ID #:1143

1

b. On March 30, 2020, Reed presented to sick call with flu-like symptoms

2

including cough, fever, and body aches which he claims he had been

3

experiencing for 2 – 3 days. Labs were drawn, chest x-rays were taken and

4

he was moved to isolation. He was tested for COVID-19 on March 30,

5

2020. The result was returned positive to FCC Lompoc on March 31, 2020

6

indicating the test detected SARS-CoV-2 RNA.

7

c. Reed was examined, his temperature was taken, his pulse was taken,

8

oxygen saturation was measured, and his symptoms were evaluated daily

9

from March 30th through April 17th (except April 2nd) and on May 28th

10

and 29th. During these periods, Reed’s temperature was never above 99.7°

11

except three times, once where it was 101.5° and then on consecutive days

12

in May where it reached 103.4° and 103.2°.

13

d. He was examined by a physician on March 31, 2020 at which time the

14

inmate reported he felt better.

15

e. He was seen by a physician again on April 7, 2020, after his fever returned,

16

at which time his pain medication was changed to acetaminophen as

17

ibuprofen was not good to take with the disease.

18

f. He was examined again on April 14, 2020, at which time he had no

19

complaints and denied having difficulty breathing, diarrhea, shortness of

20

breath, or any other symptoms of COVID-19.

21

g. On May 26, 2020, Petitioner spoke to a psychologist and expressed

22

concerns about potentially still having COVID-19 and wanting a full

23

physical examination and re-testing.

24

h. On May 27, 2020, Petitioner complained of dizziness and being light-

25

headed. He denies any fever, chills, cough, sore throat, body aches, loss of

26

taste/smell, or any other symptoms but asked to be retested to ensure he

27

doesn’t have COVID-19 any longer.

28

5

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 6 of 148 Page ID #:1144

1

i. On May 29, 2020, the inmate was seen for a follow-up with a physician for

2

his complaint of dizziness. At these exams, Reed claimed he has been

3

suffering dizziness for two months off and on. The physician noted Reed

4

was anxious about COVID-19 and considered his current complaint was

5

psychogenic in origin.

6

j. On May 30, 2020, Reed complained of having constipation for six days. He

7

was prescribed medication to assist.

8 10. I was shown page 7 and 27 – 28 of the complaint where Petitioner, through

9

counsel, claims after he was diagnosed as positive for COVID-19 FCC Lompoc

10

“left him to languish in solitary confinement.” BEMR demonstrates that he was

11

seen regularly by medical personnel and was screened by psychology staff. He

12

was not examined by a physician between March 31 and April 7 because he had

13

reported feeling better on the 31 and had not had a fever or shown any other signs

14

of illness until his fever went up again on April 6. He was initially placed in the

15

special housing unit until April 2, 2020, when the isolation unit for COVID-19

16

positive inmates was moved to H Unit. All inmates in H Unit are provided a new

17

surgical mask at the time they enter that unit.

18 11. Felix Samuel Garcia (“Garcia”), Reg. No. 46693-298, is a 35-year old male

19

with a history of dermatitis and vision problems assigned to FCI Lompoc. Garcia

20

has not presented to medical with any COVID-19 related concerns.

21

a. FCC Lomopc records reveal inmate Garcia was issued a surgical mask on

22

April 6, 2020 and three washable masks on April 14, 2020.

23

b. Garcia has had his temperature taken by medical staff five times, and it has

24

never been over 97.6°.

25

c. Garcia was an asymptomatic inmate screened for COVID-19 on May 4,

26

2020, as part of mass testing being conducted at FCC Lompoc. His test

27

results were reported negative on May 6, 2020.

28

6

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 7 of 148 Page ID #:1145

1

d. On May 7, 2020, Garcia was among a number of COVID-19 negative

2

inmates moved to quarantine at USP Lompoc.

3

e. Garcia was re-tested as part of a mass screening again on May 13, 2020,

4

and a negative test result was reported on May 14, 2020.

5

f. Garcia was ordered to be retested again though asymptomatic on May 26,

6

2020. Another negative result was reported to FCC Lompoc on May 31,

7

2020.

8 12. Andre Brown, Reg. No. 54460-097, is a 54-year old male with a history of

9

hypertension, asthma since childhood and adenocarcinoma of prostate, a common

10

form of prostate cancer, sleep apnea for which he uses a CPAP machine, and

11

gastroesophageal reflux assigned to USP Lompoc. Brown has been diagnosed

12

with prostate cancer since 2015.

13

a. FCC Lompoc records reveal inmate Brown was issued a surgical mask on

14

April 6, 2020 and three cloth masks on April 14, 2020.

15

b. Brown was screened for COVID-19 on May 27, 2020. His test results were

16

reported to FCC Lompoc on June 1, 2020, as negative as no SARS CoV 2

17

RNA was detected.

18

c. Brown has had his temperature taken by medical staff 22 times since April

19

24th, and his temperature has never been above 98.1°.

20

d. Brown has been housed in the Special Housing Unit at USP Lompoc for

21

non-medical reasons since February 2, 2020.

22 13. Sean Fears, Reg. No. 34183-060, is a 50-year old male with a history of

23

blindness in one eye, cataracts, and benign neoplasm of epididymis assigned to the

24

Camp.

25

a. Camp records indicate inmate Fears was issued three washable cloth masks

26

on April 14, 2020.

27

b. Fears lives in Unit A at the Camp and was placed in quarantine with the rest

28

of the facility on March 31, 2020.

7

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 8 of 148 Page ID #:1146

1

c. Fears has not presented to medical with any complaints though he was seen

2

and his temperature was taken on March 30th and then 12 times since May

3

1st. During these tests, Fears’ temperature has never been above 98.2°.

4 FCC LOMPOC MEDICAL RESPONSE TO COVID-19

5 14.As of this writing on June 1, 2020, the BOP’s public COVID-19 webpage at

6

https://www.bop.gov/coronavirus/ reports there are 18 confirmed inmate cases of

7

COVID-19 at USP Lompoc (which includes the Camp) and 5 confirmed inmate

8

cases of COVID-19 at FCI Lompoc. To date, 158 inmates at USP Lompoc

9

recovered while two passed away and 895 inmates at FCI Lompoc recovered

10

while two have passed away.

11 15. Even prior to our first reported case of COVID-19 in late March 2020, we were

12

already making efforts to follow the Centers for Disease Control and Prevention

13

(CDC) guidance related to COVID-19.

14

a. BOP and FCC Lompoc had initiated screening procedures. See Ex. A,

15

Memo re: Guidance on 2019 Novel Coronavirus Infection for Staff

16

Screening dated 2020-01-31 and Memo re: Guidance on 2019 Novel

17

Coronavirus Infection for Inmate Screening and Management dated 2020-

18

01-31.

19

b. Outside medical and dental trips were prioritized and reduced to the extent

20

possible to minimize the risk of infection or spreading within the facility.

21

See Ex. B, BOP Guidance for Prioritizing Outside Medical and Dental Trips

22

During the COVID-19 Pandemic.

23

c. Clinical guidance on screening inmates was provided to clinical medical

24

providers on or about March 20, 2020. See Ex. C at 1-2.

25

d. Clinical information on medical quarantine and isolation procedures was

26

distributed to medical providers on or about March 22, 2020. See Ex. D at

27

1-2.

28

8

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 9 of 148 Page ID #:1147

1 16. On March 23, 2020, the CDC issued Interim Guidance on Management of

2

Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, a

3

copy of which is provided as Exhibit E.

4 17. On March 30, 2020, BOP announced no sick call co-pay will be charged to any

5

inmate presenting for COVID-like symptoms.

6 18. The first confirmed case of COVID-19 at FCC Lompoc was at USP Lompoc on

7

March 30, 2020. The disease spread despite considerable efforts to control the

8

disease. Upon mass testing at the FCI and identifying a significant number of

9

asymptomatic positive inmates at the FCI, the determination was made to remove

10

the COVID-19 negative inmates from the facility to their own dedicated unit in

11

the USP where it is easier to contain the spread of the virus due to the physical

12

structure of the unit in hopes of preventing the further transmission of the disease.

13 19. In April 2020, we established a comprehensive infection prevention program

14

which included wide variety of activities.

15

a. On April 6, 2020, multiple masks were passed out to inmates, and staff

16

educated inmates on the proper donning and doffing of the masks. See Ex.

17

F, Mask Memo to Inmate Population.

18

b. Signs were posted in locations appropriate to educate inmates and staff

19

about cleaning surfaces, personal hygiene, social distancing, and coughing

20

practices.

21

c. FCC Lompoc set up an off-site health screening site for staff which staff

22

are required to successfully pass before being allowed to enter into their

23

work / duty station.

24

d. Every inmate has access to cleaning supplies and are encouraged to

25

frequently clean and disinfect their own areas.

26

e. Additionally, FCC Lompoc initiated regular symptom and temperature

27

checks of every inmate at FCC Lompoc by BOP medical staff.

28

9

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 10 of 148 Page ID #:1148

1 20. BOP medical personnel assisting both FCI Terminal Island and FCC Lompoc

2

reached out to the Public Health departments in Los Angeles and Santa Barbara

3

County to coordinate responses and seek guidance. The decision to mass test at

4

FCI Lompoc was made after collaboration with the LA County Public Health

5

Department.

6

a. Specifically, BOP was working closely with LA County Public Health

7

Department in addressing an outbreak at FCI Terminal Island in Terminal

8

Island, California.

9

b. BOP’s initial response to the outbreak at FCI Terminal Island and at FCC

10

Lompoc was in accordance with current CDC guidance which called for the

11

facility to identify/test and isolate the symptomatic immediately.

12

c. The LA County Public Health Department shared a recently utilized

13

approach at a local county jail, where it found high transmission rates in the

14

dormitory setting, and as a way to quickly identify positive cases and put a

15

stop to what we call a rolling quarantine which could go on for months, it

16

recommended testing 100% of the population as all housing at this facility

17

is dorm.

18

d. BOP officials thereafter decided to apply the recommended mass testing

19

procedures at FCC Lompoc.

20

e. Santa Barbara County public health officials made no specific

21

recommendations and gave no access to testing like was received from LA

22

County, so FCC Lompoc initiated its own contract with WestPac and used

23

the same procedure for testing and isolation as had been worked out in

24

consultation with the Los Angeles county public health department for

25

Terminal Island.

26 21. In addition to these steps, FCC Lompoc was on the BOP priority list for all

27

necessary resources, which allowed us to maintain our inventory of Personal

28

Protective Equipment (PPE) and other supplies like masks and cleaning products.

10

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 11 of 148 Page ID #:1149

1

FCC Lompoc received dozens of staff deployed temporarily (TDY) from other

2

BOP locations which helped us supplement our staffing, and to date, we still have

3

supplemental staffing from other BOP locations.

4 22. BOP uses the same language as the CDC to discuss pertinent issues like social

5

distancing, quarantine, medical isolation, cohorting, and recovery.

6

a. The CDC defines social distancing as the “practice of increasing the space

7

between individuals and decreasing the frequency of contact to reduce the

8

risk of spreading a disease (ideally to maintain at least 6 feet between all

9

individuals, even those who are asymptomatic). Social distancing strategies

10

can be applied on an individual level (e.g., avoiding physical contact), a

11

group level (e.g., canceling group activities where individuals will be in

12

close contact), and an operational level (e.g., rearranging chairs in the

13

dining hall to increase distance between them).” See Ex. E at 4.

14

b. “Quarantine refers to the practice of confining individuals who have had

15

close contact with a COVID-19 case to determine whether they develop

16

symptoms of the disease. Quarantine for COVID-19 should last for a period

17

of 14 days. Ideally, each quarantined individual would be quarantined in a

18

single cell with solid walls and a solid door that closes. If symptoms

19

develop during the 14-day period, the individual should be placed under

20

medical isolation and evaluated for COVID-19. If symptoms do not

21

develop, movement restrictions can be lifted, and the individual can return

22

to their previous residency status within the facility.” See Ex. E at 4.

23

c. “Medical isolation refers to confining a confirmed or suspected COVID-19

24

case (ideally to a single cell with solid walls and a solid door that closes), to

25

prevent contact with others and to reduce the risk of transmission. Medical

26

isolation ends when the individual meets pre-established clinical and/or

27

testing criteria for release from isolation, in consultation with clinical

28

11

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 12 of 148 Page ID #:1150

1

providers and public health officials (detailed in guidance below).” See Ex.

2

E at 4.

3

d. “Cohorting refers to the practice of isolating multiple laboratory-confirmed

4

COVID-19 cases together as a group, or quarantining close contacts of a

5

particular case together as a group.” See Ex. E at 3.

6

e. “Recovery is defined as resolution of fever without the use of fever-reducing

7

medications with progressive improvement or resolution of other symptoms.”

8

See Ex. G at 2.

9 23. I have been working with Infectious Disease experts from BOP and executive

10

staff at FCC Lompoc to implement various quarantine and isolation procedures,

11

which included developing an Isolation Unit inside the USP for any symptomatic

12

inmates from any of the institutions at FCC Lompoc. The Isolation Unit has a

13

capacity of just over 200 inmates, is comprised of cells that are walled-off on all

14

sides except for the open-barred entryway. As of the date of this declaration, there

15

are approximately just over 30 inmates in the Isolation Unit. Inmates are usually

16

single-celled, unless it is clinically acceptable to house two specific inmates

17

together. All BOP staff who work in the Isolation Unit are mandated to wear

18

appropriate PPE, which allows them to work safely and effectively to monitor the

19

inmates in the Isolation Unit, and to seek medical assistance if necessary. As long

20

as these symptomatic inmates who tested positive for COVID-19 do not need

21

hospitalized care, they will be treated by BOP medical staff until they recover,

22

pursuant to CDC guidelines, which will be explained later in this declaration. All

23

inmates in the Isolation Unit are symptom and temperature checked daily by BOP

24

medical staff.

25 24.As part of the BOP’s response to COVID-19, medical screenings of all staff and

26

visitors to FCC Lompoc started on March 16, 2020. As CDC guidance changed

27

regarding symptoms of the virus, the BOP modified its screening tools. A copy of

28

12

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 13 of 148 Page ID #:1151

1

the current screening tools used by the BOP and at FCC Lompoc as of June 1,

2

2020, are provided as Exhibit D at 3 - 6.

3 25.As part of the response to the national COVID-19 pandemic, the agency sent out a

4

notice to all institution Health Services Administrators informing them of the

5

CDC’s guidance regarding the management of COVID-19 in Correctional and

6

Detention Facilities. Ex. E; Exhibit G, Interim Guidance on Management of

7

Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities

8

(reviewed 2020-05-07) (https://www.cdc.gov/coronavirus/2019-

9

ncov/community/correction-detention/guidance-correctional-detention.html). As

10

part of that guidance, the CDC advised that staff should be mindful of individuals

11

who are at a higher risk of severe illness from COVID-19 in three circumstances:

12

“[i]f the number of confirmed cases exceeds the number of individual medical

13

isolation spaces available in the facility”, “[i]f the number of quarantined

14

individuals exceeds the number of individual quarantine spaces available in the

15

facility,” and during “the initial medical evaluation [of] a symptomatic

16

individual.” Ex. E, p. 16, 20 and 23. Furthermore, the CDC issued guidelines for

17

determining those individuals who were “high risk” for severe illness caused by

18

COVID-19. These guidelines can be found at:

19

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-

20

higher-risk.html (accessed June 1, 2020). Per CDC guidance, “high-risk”

21

individuals include those over 65 and those with significant underlying medical

22

conditions, such as chronic lung disease, moderate to severe asthma, liver disease,

23

and diabetes. See id.

24 26. FCC Lompoc continues to explore and employ different measures to address

25

COVID-19 given its fluid and uncertain nature.

26

a. For example, in mid-April 2020, FCC Lompoc initiated 14 days of

27

enhanced mitigation measures which greatly limited inmate activity and

28

movement, and mandated inmates to wear masks and maintain

13

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 14 of 148 Page ID #:1152

1

hygiene/cleanliness. Although these measure temporarily suspended inmate

2

access to phones and computers (for emails), it was necessary to curtail the

3

spread of COVID-19 as we believed the frequent touching of the keyboards

4

and phones without adequate cleaning in-between was a problem.

5

b. Staff were assigned to work one area (USP, FCI or Camp) and all of their

6

assignments were to be at that facility to prevent staff going between

7

facilities and possibly spreading the virus that way.

8

c. Inmates were cohorted by the structure of the institution. So their living

9

assignment dictated their cohort. The FCI would consist of each dorm with

10

separate floors as inmates were not intermingling throughout the Unit. At

11

the USP, they were cohorted by housing Unit, but since they also have

12

individual cells, the spread of infectious disease is a lot easier to slow and

13

contain because of the physical structure. The Camp has three buildings

14

and they are cohorted by the assigned building. We also separated inmates

15

out by job assignment, like food service and farm employees and cohorted

16

them in non-traditional areas for housing to add social distancing.

17

d. Limitations on allowing inmates to informally socialize outside of their

18

areas and cells presented another risk of exposure that BOP could and did

19

control with these enhanced measures. A copy of the Warden’s

20

memorandums dated April 17, 2020, ordering these 14 days of enhanced

21

mitigation measures is attached hereto as Exhibit H.

22 27. Clinical guidelines were being issued or made available and revised through

23

March, April and May. BOP made available clinical guidelines on procedures for

24

quarantine, isolation and treatment of inmates in BOP facilities. Ex. D is a

25

composite exhibit of clinical guidelines available to BOP medical staff.

26 28. In early May, the staff at FCC Lompoc began pursuing a strategy that would lead

27

to the testing of all inmates at FCI Lompoc, regardless of symptomology in order

28

to address the spread of COVID-19. FCI Lompoc purchased the test kits to be

14

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 15 of 148 Page ID #:1153

1

administered by Health Services staff and contracted with a private company to

2

complete the lab work. In addition, target cohort testing was utilized in other

3

areas, like M-Unit at USP Lompoc to retest inmates from the FCI who had been

4

moved there after testing negative initially. Symptomatic based testing continues

5

to be conducted on an as needed basis complex-wide.

6

a. Prior to Universal Testing, all symptomatic inmates at FCI Lompoc were

7

placed in insolation.

8

b. As the great majority of FCI Lompoc inmates tested positive through the

9

mass testing, if any of these asymptomatic inmates developed some mild

10

symptoms after Universal Testing, they also remained at FCI Lompoc in

11

their respective housing unit. As all of these inmates were still subject to

12

daily symptom screening and temperature checks, any positive inmate who

13

had worsening symptoms could be assessed by medical staff for further

14

medical care as needed. To the extent some of these asymptomatic inmates

15

developed mild symptoms after Universal Testing, they also remained at

16

FCI Lompoc in their respective housing unit.

17

c. As a result of the early May Universal Testing at FCI Lompoc, inmates

18

testing negative were moved into M Unit inside the USP, which was

19

designated a “clean” housing unit. The reason for the creation of M Unit

20

was that the great majority of those tested at FCI Lompoc tested positive for

21

COVID-19, and we needed a special unit for the minority of inmates who

22

tested negative for COVID-19. Thus, the FCI Lompoc inmates who tested

23

negative for COVID-19 were moved into M Unit to better insulate them

24

from infection from COVID-19 at FCI Lompoc. Cohort testing of M-Unit

25

continued to be conducted.

26

d. During the week of May 11, 2020, FCC Lompoc decided to retest all of the

27

negative inmates who were being housed in M Unit at USP Lompoc and U

28

Unit (otherwise referred to as Unicor) at the FCI given the probability there

15

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 16 of 148 Page ID #:1154

1

could be some false negatives, and because even highly reliable testing

2

methods might not detect COVID-19 if it had not yet developed sufficiently

3

for testing to detect it.

4

e. As a result of this retesting process, 87 inmates tested positive or

5

indeterminate for COVID-19 on May 13, 2020, and they were immediately

6

moved across the hall into the Isolation Unit at USP Lompoc or back to

7

their housing unit at the FCI. We believed placement of asymptomatic

8

inmates who test positive for COVID-19 into the Isolation Unit would be

9

the best way to prevent the further spread of COVID-19. While there are

10

symptomatic inmates with COVID-19 in the Isolation Unit, there is no

11

evidence to suggest further spread/infection as both groups are already

12

positive with COVID-19. Inmates in the Isolation Unit are symptom and

13

temperature checked daily, and if any inmate’s symptoms worsen, medical

14

staff can decide on whether more advanced care is needed, like transfer to

15

the HCU or to a local hospital.

16 29.Pursuant to the CDC protocols and BOP guidelines that follow CDC protocols

17

regarding COVID-19 and prisons, an individual who tests positive may be deemed

18

recovered after fourteen days of improved symptoms, with the last three days

19

being fever-free. See https:/ /www.cdc.gov/ coronavirus/2019-ncov

20

/community/strategy-discontinue-isolation.html (accessed June 1, 2020). Hence,

21

the BOP had adopted this guidance and implemented a 14-day quarantine period.

22 30. We currently have medical staff performing temperature testing and symptom

23

screening daily in every quarantine and isolation housing unit, and if the inmate

24

was identified as symptomatic, we would either send that inmate to our Isolation

25

Unit inside the USP, or to a local hospital as needed for further evaluation, testing,

26

and/or treatment. Testing for COVID-19 can currently be performed locally

27

through an on-site Abbott ID testing machine, by sending it to a referral contract

28

laboratory, or by whichever means the local hospital chooses to use.

16

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 17 of 148 Page ID #:1155

1 31. FCC Lompoc created an on-site HCU as another measure to address COVID-19,

2

and to alleviate any burden on community hospital resources that might exist.

3

Although FCC Lompoc has been using up to three local hospitals to care for our

4

COVID-19 patients, we developed the HCU to provide another medical resource

5

for FCC Lompoc. Inmates who need intensive-care level medical services, like a

6

ventilator, will continue to be sent to a local hospital, but, inmates who can be

7

managed with our on-site 24/7 contracted medical staff, will be cared for in the

8

HCU. As of the date of this declaration, we have nine patients currently in the

9

HCU.

10 32. Additionally, FCC Lompoc erected a BLU-MED: Negative Pressure Isolation

11

System. This self-contained system was set-up inside the secure perimeter at FCI

12

Lompoc. It was initially erected for use to enhance social distancing opportunities

13

and used as a separate isolation unit for inmates with mild respiratory symptoms.

14

There are currently no inmates housed in this area and is available should it

15

become needed again in the future.

16 33.As of this date, the entire population presently housed at FCI Lompoc is

17

considered recovered. Inmates will continue to be monitored by Health Services.

18

Sick call and medication distribution occurs daily in the housing units. As of this

19

date, USP Lompoc M Unit is the quarantine unit for inmates from the FCI, L Unit

20

is on quarantine and Camp South B-side is also on quarantine. Inmates in

21

quarantine units will continue to have daily symptom screening and temperature

22

checks completed. The entire Complex is presently on lockdown as part of a

23

nationwide response to rioting around the country so at this time, medical staff

24

conduct twice daily pill lines throughout the entire Complex. In addition, sick call

25

requests are passed out and collected by the Unit Officers daily and are addressed

26

by Health Services as needed.

27 ///////////////////////////////////////////////////////////////////////////////////////////////////////////////////

28

17

Case 2:20-cv-04450-CBM-PVC Document 25-2 Filed 06/05/20 Page 18 of 148 Page ID #:1156

1

Pursuant to the provisions of 28 U.S.C. § 1746, I declare under penalty of perjury

2 that the foregoing is true and correct to the best of my information, knowledge, and

3 belief.

4

Executed on this[.Jl.-.day of June 2020, in Lompoc, California.

5 6

L4s

7

Health Services Administrator

8

Federal Bureau of Prisons

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
26

27

28 18

Case 2:20-cv-04450-CBM-PVC Document 25-3 Filed 06/05/20 Page 1 of 3 Page ID #:1287

1

DECLARATION OF MELISSA ARNOLD

2

I, Melissa Arnold, declare as follows:

3

1. I am currently employed by the Federal Bureau of Prisons (“BOP”) as the

4 Complex Case Management Coordinator (“CMC”) at the Federal Correctional Complex

5 in Lompoc, California (“FCC Lompoc”). I have been employed by the BOP since June

6 2005. I have been the Complex CMC at FCC Lompoc since April 2018, and was a CMC

7 for the six years preceding. If called upon, I could and would testify as set forth below.

8

2. As part of my duties, I have been assigned as the Reduction in Sentence

9 Coordinator at FCC Lompoc. In this role, I am primarily responsible for tracking all

10 requests submitted by an inmate or on behalf of an inmate housed at FCC Lompoc

11 seeking a Reduction in Sentence (“RIS”) (also called Compassionate Release) under 18

12 U.S.C. § 3582(c)(1)(A). I track these requests and responses by using the RIS Tracking

13 System developed by the BOP.

14

3. I am thoroughly familiar with BOP records and systems relating to the

15 processing of compassionate release requests as well as BOP Program Statement

16 5050.50, Compassionate Release/Reduction in Sentence: Procedures for Implementation

17 of 18 U.S.C. §§ 3582 and 4205(g), (“PS 5050.50”) which was revised on January 17,

18 2019 and incorporates rules language codified at 28 C.F.R. §§ 571.60, et seq. This policy

19 sets out procedures and requirements for submitting a request to the BOP for a motion

20 under 18 U.S.C. § 3582(c)(1)(A). Prior to December 21, 2018, only the Director of BOP

21 was authorized to file such motions on behalf of an inmate. However, the current statute

22 permits defendants to file such motions themselves after having “fully exhausted all

23 administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the

24 defendant’s behalf or the lapse of 30 days from the receipt of such a request by the

25 warden of the defendant’s facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A).

26

4. To summarize, an inmate submits an initial request for a RIS motion to the

27 institution’s warden. PS 5050.50 at 3 ¶ 2. At a minimum, the request must set forth the

28 “extraordinary and compelling circumstances” justifying the request and the inmate’s

Case 2:20-cv-04450-CBM-PVC Document 25-3 Filed 06/05/20 Page 2 of 3 Page ID #:1288

1 proposed release plans, including where they will reside, how they will support

2 themselves and, if the request is based on the inmate’s health, where they will obtain

3 medical treatment and how they will pay for it. Id. Then I forward the request to the

4 institution’s Health Services Department for review. The request is then reviewed to

5 determine whether it qualifies under the criteria identified policy.

6

5. Upon the receipt of the all pertinent information, the Warden will determine

7 whether the request warrants approval. PS 5050.50 at 12-13 ¶ 8. If so, the Warden refers

8 the request to the BOP’s Office of General Counsel for further processing. Id. at 13–14.

9 If the Warden determines that the request does not warrant referral, then the Warden

10 provides the inmate with written notice of that decision and the basis for that decision.

11 Id. at 15 ¶ 9. The inmate can then appeal the denial through the BOP’s administrative

12 remedy process. Id.

13

6. I accessed the BOP’s RIS tracking system to determine whether any of the

14 Petitioners in this case—Yonnedil Carror-Torres, Federal Register number (Reg. No.)

15 41928-069; Vincent Reed, Reg. No. 27173-016; Felix Samuel Garcia, Reg. No. 46693-

16 298; Andre Brown, 54460-097; and Shawn L. Fears, Reg. No. 34183-060—had

17 submitted an RIS request to the Warden of FCC Lompoc.

18

a. For Petitioner Carror-Torres, Kiara Carror submitted an RIS request

19

that was received by the Warden’s Office on May 14, 2020. This request is in the

20

process of being reviewed by the institution’s staff to determine whether Petitioner

21

Carror-Torres qualifies for compassionate release.

22

b. As to Petitioner Reed, BOP records show that Joanna Munson

23

Perales, his Federal Public Defender, filed a request for compassionate release on

24

January 7, 2020, which was received by the Warden on January 8, 2020. A denial

25

was sent on April 29, 2020, explaining why Petitioner Reed’s request was denied.

26

c. Petitioner Garcia submitted a request for a RIS motion to be filed on

27

his behalf, which was received by the Warden on May 20, 2020. The request seeks

28

home confinement under the CARES Act and also states he seeks to be “released

2

Case 2:20-cv-04450-CBM-PVC Document 25-3 Filed 06/05/20 Page 3 of 3 Page ID #:1289

1

earlier." The request is in the process of being reviewed by the institution's staff to

2

determine whether he qualifies under the agency's criteria.

3

d. My review of records for Petitioner Brown reveals FCC Lompoc

4

received an email requesting compassionate release from Verna Wefald,

5

representing herself to be his appointed counsel, which was sent on May 13, 2020.

6

The request is in the process of being reviewed by the institution's staff to

7

determine whether he qualifies for compassionate release.

8

e. A search of Agency records located no request for a reduction in

9

sentence on behalf of Petitioner Fears.

10

7. Once staff completes their review of the outstanding requests for Petitioners

11 Carror-Torres, Garcia, and Brown, they will submit a recommendation as to the

12 disposition of the application. The Warden will then consider that recommendation and

13 will either forward the application to the BOP's Office of General Counsel for further

14 processing or will deny the application and inform the inmate of that denial in writing. If

15 the Warden denies the application, then Petitioners have the opportunity to appeal that

16 denial through the administrative remedy process.

17

18

I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing

19 is true and correct. Executed this 1._th day of June, 2020, at Lompoc, California.

20

21

22

23

. 24

Complex Case Manager Coordinator

Federal Correctional Institution

25

Lompoc, California

26

· 27

28

3

 Case 2:20-cv-04450-CBM-PVC Document 34 Filed 06/11/20 Page 1 of 11 Page ID #:1486

1 Terry W. Bird – Bar No. 49038 tbird@birdmarella.com
2 Dorothy Wolpert – Bar No. 73213 dwolpert@birdmarella.com
3 *Naeun Rim – Bar No. 263558 nrim@birdmarella.com
4 Shoshana E. Bannett – Bar No. 241977 sbannett@birdmarella.com
5 Christopher J. Lee – Bar No. 322140 clee@birdmarella.com
6 Jimmy Threatt – Bar No. 325317 jthreatt@birdmarella.com
7 BIRD, MARELLA, BOXER, WOLPERT, NESSIM, DROOKS,
8 LINCENBERG & RHOW, P.C. 1875 Century Park East, 23rd Floor
9 Los Angeles, California 90067-2561 Telephone: (310) 201-2100
10 Facsimile: (310) 201-2110

11 Peter J. Eliasberg – Bar No. 189110 peliasberg@aclusocal.org
12 Peter Bibring – Bar No. 223981 pbibring@aclusocal.org
13 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
14 1313 West 8th Street Los Angeles, CA 90017
15 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
16 Attorneys for Plaintiff-Petitioners
17

Donald Specter – Bar No. 83925 dspecter@prisonlaw.com
Sara Norman – Bar No. 189536 snorman@prisonlaw.com
PRISON LAW OFFICE 1917 Fifth Street Berkeley, California 94710 Telephone: (510) 280-2621 Facsimile: (510) 280-2704

18

UNITED STATES DISTRICT COURT

19

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

20 YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL
21 GARCIA; ANDRE BROWN; and SHAWN L. FEARS, individually and
22 on behalf of all others similarly situated,

23

Plaintiff-Petitioners,

CASE NO. 2:20-cv-04450-CBM-PVCx PLAINTIFF-PETITIONERS’ REPLY SUPPORTING EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

24

vs.

25 LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL
26 CARVAJAL, in his capacity as Director of the Bureau of Prisons,
27 Defendant-Respondents.
28

Assigned to Hon. Consuelo B. Marshall Courtroom 8B

3652535

REPLY ISO EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

Case 2:20-cv-04450-CBM-PVC Document 34 Filed 06/11/20 Page 2 of 11 Page ID #:1487

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. ARGUMENT

3

Defendant-Respondents (“Respondents”) muddy a straightforward class

4 certification inquiry by ignoring controlling Ninth Circuit law and mischaracterizing

5 the relief sought. Plaintiff-Petitioners (“Petitioners”) seek policy changes that would

6 apply uniformly to all class members. Petitioners do not ask the Court to make

7 individualized determinations of home confinement or compassionate release. The

8 requested relief, which is injunctive and declaratory in nature, does not require the

9 Court to engage in individual, fact-intensive inquiries. As explained below, with this

10 action properly construed, Petitioners easily meet the requirements of Rule 23.1

11

A. The Proposed Class Meets the Requirements of Rule 23(a).2

12

1. Commonality

13

“A clear line of precedent, stretching back long before Wal-Mart and

14 unquestionably continuing past it, firmly establishes that when inmates provide

15 sufficient evidence of systemic and centralized policies or practices in a prison

16 system that allegedly expose all inmates in that system to a substantial risk of

17 serious future harm, Rule 23(a)(2) is satisfied.” Parsons v. Ryan, 754 F.3d 657, 684

18 (9th Cir. 2014). That is what Petitioners have done here.3 That should be the end of

19

20 1 Respondents’ argument that class certification is inappropriate in habeas
21 proceedings is tied to their Rule 23 analysis and, for that reason, Petitioners will not address it separately. (Dkt. 29 at 9-10.) Respondents also reargue their position
22 regarding the Prison Litigation Reform Act. (Id. at 10-12.) That issue is distinct
23 from the application for provisional class certification, was fully briefed by the parties in response to Petitioners’ ex parte application for a temporary restraining
24 order, and will not be repeated here. (Dkt. 25 at 63-65; Dkt. 32 at 25-27.)

25 2 Respondents “do not contest” that the Proposed Class satisfies the numerosity 26 requirement. (Dkt. 29 at 13.)

27 3 Respondents attempt to distinguish Parsons, in a footnote, on the grounds that in 28 this case, (1) Petitioners “seek provisional class certification,” whereas Parsons

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1 the inquiry. B.K. ex rel. Tinsley v. Snyder, 922 F.3d 957, 969 (9th Cir. 2019) (“the

2 statewide policies and practices are the ‘glue’ that holds the class together”)

3 (quoting Parsons, 754 F.3d at 678).

4

Respondents contend, however, that the commonality requirement is not met

5 because each putative class member “has different medical needs, some more

6 serious than others,” and “differing risk profiles.” (Dkt. 29 at 16.) But the Ninth

7 Circuit already has foreclosed that argument: “although a presently existing risk

8 may ultimately result in different future harm for different inmates—ranging from

9 no harm at all to death—every inmate suffers exactly the same constitutional injury

10 when he is exposed to a single . . . policy or practice that creates a substantial risk of

11 serious harm.” Parsons, 754 F.3d at 678; see also id. at 680 n.23 (“The defendants’

12 insistence that commonality is defeated by individual variations in preexisting

13 conditions, demand for medical care, and response to treatment is incorrect.”).4

14 involved certification of a class after denial of a motion to dismiss; and
15 (2) Respondents “have presented evidence” that they are complying “with CDC
16 guidelines and considering release of inmates.” (Dkt. 29 at 20 n.8.) But the relevant legal framework is the same. Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d
17 1036, 1041-43 (9th Cir. 2012). And the Ninth Circuit made clear that plaintiffs need
18 not “show at the class certification stage that they will prevail on the merits.” Parsons, 754 F.3d at 676 n.19. “To hold otherwise would turn class certification
19 into a mini-trial.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th Cir.
20 2011). In any event, Petitioners have provided detailed allegations and ample evidence at this stage of the case to support provisional class certification. (See, e.g.,
21 Dkt. 16 at ¶¶ 21-80 (factual allegations in corrected complaint); Dkt. 18-1 (policy
22 memoranda, directives, and declarations from attorneys and family members of people incarcerated at Lompoc); Dkt. 18-2 (declaration of counsel detailing
23 conditions reported by Petitioner Shawn Fears).)
24 4 Respondents’ suggestion that the putative class is overbroad because it extends 25 beyond the “medically vulnerable” (Dkt. 29 at 17-19) also fails because, as
26 explained in Petitioners’ application, even healthier people who contract COVID-19 are susceptible to severe strokes, and preliminary evidence suggests that the disease
27 may render lasting organ damage in even minimally symptomatic or completely
28 asymptomatic patients. (Dkt. 22 at 5.) Respondents do not respond to this argument.

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1

The district court’s decision in Ahlman v. Barnes, No. 20-835, 2020 WL

2 2754938 (C.D. Cal. May 26, 2020) (appeal pending), is instructive. There, the

3 district court granted provisional certification of, among other things, a class of

4 “[a]ll current and future post-conviction prisoners incarcerated at the Orange County

5 Jail from the present until the COVID-19 pandemic has abated.” Id. at *6. The

6 district court rejected defendants’ argument “that commonality is not satisfied

7 because ‘[e]ach individual has a specific medical profile.’” Id. at *7 (internal

8 citation omitted); see also Fraihat v. U.S. Immigration and Customs Enforcement,

9 No. 19-1546, 2020 WL 1932570, at *18 (C.D. Cal. Apr. 20, 2020) (rejecting

10 defendants’ argument “that the proposed classes ‘flunk’ the commonality

11 requirement due to the factual variation . . . between the degree of COVID-19 threat

12 to each individual”). The district court instead concluded: “Plaintiffs challenge

13 Defendants’ institution-wide response and seek institution-wide injunctive relief.

14 Accordingly, the relevant questions such as deliberate indifference will be decided

15 on a classwide, rather than individual, basis.” Ahlman, 2020 WL 2754938, at *7.

16

In arguing against commonality, Respondents mischaracterize the relief

17 sought here. (Dkt. 29 at 17.) Petitioners do not ask the Court to decide or review

18 whether each putative class member is in fact eligible for home confinement or

19 compassionate release. Petitioners ask only that the Court put in place an expedited

20 process—one that would apply to all class members—for Respondents to make

21
22 (Dkt. 29 at 13-19.) Respondents assert without citation that “not all risk profiles necessitate the same precautions.” (Id. at 16.) But “either each of the policies and
23 practices is unlawful as to every inmate or it is not. That inquiry does not require 24 [the Court] to determine the effect of those policies and practices upon any
individual class member (or class members) or to undertake any other kind of 25 individualized determination.” Parsons, 754 F.3d at 678. Indeed, the Interim 26 Guidance on Management of Coronavirus Disease (COVID-19) in Correctional and
Detention Facilities issued by the Centers for Disease Control and Prevention is not 27 limited only to those deemed “medically vulnerable” and does not set forth different 28 standards for so-called “recovered” people (however defined). (Dkt. 18-1 at 12-37.)

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1 those decisions. Those individual determinations could be challenged on an

2 individual basis, not through the class vehicle. See Pride v. Correa, 719 F.3d 1130,

3 1137 (9th Cir. 2013) (“Individual claims for injunctive relief related to medical

4 treatment are discrete from the claims for systemic reform addressed in [an existing

5 class action]. Consequently, where an inmate brings an independent claim for

6 injunctive relief solely on his own behalf for medical care that relates to him alone,

7 there is no duplication of claims or concurrent litigation.”). The Court’s oversight

8 over the process would be limited to allegations of a pattern or practice of making

9 such decisions improperly.

10

Petitioners also seek improved conditions that would be applied to all class

11 members, in the form of policies that would effectively allow for social distancing;

12 provision of sanitary and personal protective equipment; improved sanitation

13 practices; and adequate testing, contact tracing, and isolation measures. To deny

14 class relief would weigh down the court system with over a thousand individual

15 lawsuits, with judges being asked to (re-)adjudicate what public health measures are

16 constitutionally required in the prison and then to order them on a building-by-

17 building (or, in some cases, cell-by-cell) basis.

18

Even assuming the requested relief involved the Court’s consideration of

19 individual medical and custody risk factors (which it does not), under Ninth Circuit

20 precedent, Petitioners “need not show . . . that every question in the case, or even a

21 preponderance of questions, is capable of class wide resolution. So long as there is

22 ‘even a single common question,’ a would-be class can satisfy the commonality

23 requirement of Rule 23(a)(2).” See Parsons, 754 F.3d at 675 (internal quotation

24 marks and citation omitted). This is true when there “is a common core of salient

25 facts coupled with disparate legal remedies within the class.” Meyer v. Portfolio

26 Recovery Assocs., LLC, 707 F.3d 1036, 1041 (9th Cir. 2012) (quotation marks and

27 citation omitted).

28

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1

2. Typicality

2

Respondents’ typicality argument rests on the same flawed reasoning as their

3 commonality argument. (Dkt. 29 at 20.) For the same reasons, it must be rejected.

4 The Ninth Circuit’s decision in Parsons again provides the appropriate framework:

5

Where the challenged conduct is a policy or practice that

affects all class members, the underlying issue presented

6

with respect to typicality is similar to that presented with

respect to commonality, although the emphasis may be

7

different. In such a case, because the cause of the injury is

the same . . . the typicality inquiry involves comparing the

8

injury asserted in the claims raised by the named plaintiffs

with those of the rest of the class. We do not insist that the

9

named plaintiffs’ injuries be identical with those of the

other class members, only that the unnamed class

10

members have injuries similar to those of the named

plaintiffs and that the injuries result from the same,

11

injurious course of conduct.

12 754 F.3d at 685 (quotation marks and citation omitted).

13

Respondents again reference “each inmate’s unique factors,” including “the

14 severity of his offense, his age, and his health conditions.” (Dkt. 29 at 21.) But “[i]t

15 does not matter that the named plaintiffs may have in the past suffered varying

16 injuries or that they may currently have different health care needs; Rule 23(a)(3)

17 requires only that their claims be ‘typical’ of the class, not that they be identically

18 positioned to each other or to every class member.” Parsons, 754 F.3d at 686. It is

19 enough that “[e]ach declares that he or she is being exposed, like all other members

20 of the putative class, to a substantial risk of serious harm by the challenged . . .

21 policies and practices.” Id. at 685. Similarly, although criminal history likely will be

22 relevant to determination of whether a putative class member is eligible for release,

23 it has no bearing on the typicality analysis. See Rodriguez v. Hayes, 591 F.3d 1105,

24 1124 (9th Cir. 2010) (“Petitioner’s aggravated felon status is similarly of no

25 significance to the typicality analysis. The claims of Petitioner and the class on the

26 whole are that they are entitled to a bond hearing in which dangerousness and risk of

27 flight are evaluated. While Petitioner’s criminal history . . . will almost certainly be

28 relevant to any bond hearing determination, the determination of whether Petitioner

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1 is entitled to a bond hearing will rest largely on interpretation of the statute

2 authorizing his detention.”) (emphasis added).5

3

Respondents observe that “numerous federal inmates are having their cases

4 for release heard on an individualized basis,” with “some” obtaining release. (Dkt.

5 29 at 21.) But Respondents do not explain the relevance of these general

6 observations to a typicality inquiry. Nor could they. As the district court in Fraihat

7 explained, “the fact that some detainees have started down one avenue [of separate

8 actions] should not prevent [defendant] from exploring more expeditious paths to

9 relief. In addition, some of those individuals have been or will be denied relief, and

10 will still require safe conditions of confinement.” 2020 WL 1932570, at *28

11 (internal citation omitted). And Respondents provide no information on whether any

12 of the people seeking release are housed at FCI Lompoc or USP Lompoc

13 (collectively, “Lompoc”), what the basis for their individual actions are, what the

14 governing standard is, and whether and how many people have in fact been granted

15 release. (Dkt. 29 at 21-22.)

16

3. Adequacy of Representation

17

Respondents contend that Petitioners will not be adequate class

18 representatives. (Dkt. 29 at 22-23.) In support of this argument, Respondents state

19
20 5 Respondents provide an incomplete history of Rodriguez. (Dkt. 29 at 21.) In Rodriguez, the Supreme Court did not disturb the Ninth Circuit’s typicality analysis
21 but instead disagreed with the Ninth Circuit’s later construction of certain 22 immigration statutes. The Court then directed the Ninth Circuit to consider, “[n]ow
that we have resolved th[e statutory] challenge,” whether a class action still was the 23 appropriate vehicle. Jennings v. Rodriguez, 138 S. Ct. 830, 851 (2018). The Ninth 24 Circuit in turn did not disturb its prior decision finding that the proposed class met
the requirements of Rule 23, and instead remanded to the district court to consider 25 whether the class “should remain certified for consideration of the constitutional 26 issues and available class remedies.” Rodriguez v. Marin, 909 F.3d 252, 257 (9th
Cir. 2018). The district court later denied respondents’ motion to decertify the class. 27 See Dkt. 555, Rodriguez v. Marin, No. 07-03239 at 5 (C.D. Cal. May 28, 2020).
28

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1 that “release is not possible for all inmates,” and that Petitioners do not “appear to

2 be eligible for release.” (Id. at 22.) On that basis alone, Respondents suggest that the

3 interests of Petitioners “are adverse to those putative class members who may be

4 released to home confinement.” (Id.) That is a peculiar argument. This is not a zero-

5 sum game. Petitioners (and their counsel, whom Respondents do not object to) have

6 every incentive to prosecute this case vigorously and to argue for, among other

7 things, a robust, expedited, and fair process for release; regardless of whether

8 Petitioners themselves are released, reduction of the prison population allows for

9 increased social distancing, fewer opportunities for transmission of COVID-19, and

10 improved access to prison resources and services.6

11

Respondents’ next argument—that some putative class members may prefer

12 to remain in prison or may have “other avenues of release available to them”—also

13 is meritless. (See Dkt. 29 at 22-23.) “The fact that some members of the class may

14 be personally satisfied with the existing system and may prefer to leave the violation

15 of their rights unremedied is simply not dispositive of a determination under Rule

16 23(a).” Wilder v. Bernstein, 499 F. Supp. 980, 993 (S.D.N.Y. 1980); see Morgan v.

17 United States Soccer Fed’n, Inc., No. 19-1717, 2019 WL 7166978, at *8 (C.D. Cal.

18 Nov. 8, 2019) (rejecting defendants’ argument that “the proposed class

19 representatives are inadequate because there might be a conflict between those

20 members of the putative class who prefer the . . . current compensation model and

21 those who prefer to adopt [a different] compensation model”) (citing Wilder).

22

And, as the Ninth Circuit has long held, “[m]ere speculation as to conflicts

23
24 6 Respondents’ argument as to adequacy of representation also is in tension with their acknowledgement, made earlier in their opposition, that Petitioners in fact
25 represent a wide range of people in Lompoc, with convictions “varying in severity,”
26 “different terms” of imprisonment, “different propensities for recidivism,” “different ages,” “different health histories,” and “different circumstances should they be
27 released.” (Dkt. 29 at 1.) Together, Petitioners easily represent the diverse interests
28 of the putative class.

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1 that may develop at the remedy stage is insufficient to support denial of initial class

2 certification.” Soc. Servs. Union, Local 535, Serv. Employees Int’l Union, AFL-CIO

3 v. Santa Clara Cty., 609 F.2d 944, 948 (9th Cir. 1979); see also Cummings v.

4 Connell, 316 F.3d 886, 896 (9th Cir. 2003) (“this circuit does not favor denial of

5 class certification on the basis of speculative conflicts”); Blackie v. Barrack, 524

6 F.2d 891, 909 (9th Cir. 1975) (“courts have generally declined to consider conflicts

7 . . . sufficient to defeat class action status at the outset unless the conflict is apparent,

8 imminent, and on an issue at the very heart of the suit”).

9

B. The Proposed Class Meets the Requirements of Rule 23(b)(2).

10

Respondents contend that the Proposed Class does not meet the requirements

11 of Rule 23(b)(2). Again, Respondents ignore controlling Ninth Circuit law and

12 grossly mischaracterize the relief sought by Petitioners. (Dkt. 29 at 23-24.) As the

13 Ninth Circuit explained in Parsons, the requirements of Rule 23(b)(2) “are

14 unquestionably satisfied when members of a putative class seek uniform injunctive

15 or declaratory relief from policies or practices that are generally applicable to the

16 class as a whole.” 754 F.3d at 688 (citing Rodriguez v. Hayes, 591 F.3d 1105, 1125

17 (9th Cir. 2010)). That is what Petitioners seek here.

18

Respondents continue their chorus of “different criminal histories” and

19 “different medical conditions.” (Dkt. 29 at 24.) Parsons again provides the response:

20 “Contrary to the defendants’ assertion that each inmate’s alleged injury is amenable

21 only to individualized remedy, every inmate in the proposed class is allegedly

22 suffering the same (or at least a similar) injury and that injury can be alleviated for

23 every class member by uniform changes in . . . [defendants’] policy and practice.”

24 754 F.3d at 689. The relief Petitioners seek here—improved conditions in the prison

25 and an expedited process to review eligibility for release—applies to all putative

26 class members.

27

It is true, of course, that not all putative class members ultimately will be

28 found eligible for release. But that is not relevant here, as the Ninth Circuit

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1 explained in Rodriguez. There, the petitioner sought “a writ of habeas corpus on

2 behalf of himself and a class of aliens detained in the Central District of California

3 for more than six months without a bond hearing while engaged in immigration

4 proceedings.” 591 F.3d at 1111. The petitioner requested “injunctive and declaratory

5 relief providing individual bond hearings to all members of the class.” Id.

6 Respondents challenged certification under Rule 23(b)(2), noting that putative class

7 members were “detained pursuant to different statutes.” Id. at 1125. The Ninth

8 Circuit noted that this argument “miss[es] the point of Rule 23(b)(2).” Id. The Court

9 held that although “[t]he particular statutes controlling class members’ detention

10 may impact the viability of their individual claims for relief,” that did “not alter the

11 fact that relief from a single practice is requested by all class members.” Id.

12

Respondents do not try to distinguish (or even cite) Parsons or Rodriguez.

13 (Dkt. 29 at 23-24.) Instead, Respondents rely on two decisions from other circuits.

14 The first decision is inapposite because it did not involve Rule 23(b)(2); instead, it

15 focused entirely on Rule 23(b)(3), which is not relevant here. See Wragg v. Ortiz,

16 No. 20-5496, 2020 WL 2745247, at *29-30 (D.N.J. May 27, 2020). The second

17 decision is inapposite because it turned entirely on the fact that plaintiffs sought

18 money damages, which Petitioners do not seek here. See Lemon v. Int’l Union of

19 Operating Engineers, Local No. 139, AFL-CIO, 216 F.3d 577, 581 (7th Cir. 2000).7

20 II. CONCLUSION

21

For the foregoing reasons, Petitioners respectfully request that the Court

22 provisionally certify the Proposed Class.

23

24

25

26

27 7 Respondents may have cited Lemon in error. The language in their opposition 28 that is attributed to Lemon does not in fact appear in that decision. (Dkt. 29 at 24.)

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1

Local Rule 5-4.3.4(a)(2)(i) Compliance: Filer attests that all other

2 signatories listed concur in the filing’s content and have authorized this filing.

3

4 DATED: June 11, 2020

Respectfully submitted,

5

Terry W. Bird

6

Dorothy Wolpert

7

Naeun Rim Shoshana E. Bannett

8

Christopher J. Lee

9

Jimmy Threatt Bird, Marella, Boxer, Wolpert, Nessim,

10

Drooks, Lincenberg & Rhow, P.C.

11

12

By:

/s/ Naeun Rim

13

Naeun Rim

Attorneys for Plaintiff-Petitioners

14

15 DATED: June 11, 2020 16

Peter J. Eliasberg Peter Bibring ACLU Foundation of Southern California

17

By:

/s/ Peter Bibring

18

Peter Bibring

19

Attorneys for Plaintiff-Petitioners

20 DATED: June 11, 2020
21 22 23 24

Donald Specter Sara Norman Prison Law Office

By:

/s/ Donald Specter

Donald Specter Attorneys for Plaintiff-Petitioners

25

26

27

28

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1 NICOLA T. HANNA

United States Attorney

2 DAVID M. HARRIS

Assistant United States Attorney

3 Chief, Civil Division

JOANNE S. OSINOFF

4 Assistant United States Attorney

Chief, General Civil Section

5 KEITH M. STAUB (Cal. Bar No. 137909)

CHUNG H. HAN (Cal. Bar No. 191757)

6 JASMIN YANG (Cal. Bar No. 255254)

DAMON A. THAYER (Cal. Bar No. 258821)

7 PAUL B. GREEN (Cal. Bar No. 300847)

Assistant United States Attorney

8

Federal Building, Suite 7516

300 North Los Angeles Street

9

Los Angeles, California 90012

Telephone: (213) 894-7423

10

Facsimile: (213) 894-7819

E-mail: Keith.Staub@usdoj.gov

11

Chung.Han@usdoj.gov

Jasmin.Yang@usdoj.gov

12

Damon.Thayer@usdoj.gov

Paul.Green@usdoj.gov

13

Attorneys for Respondents

14 Felicia L. Ponce and Michael Carvajal

15

UNITED STATES DISTRICT COURT

16

FOR THE CENTRAL DISTRICT OF CALIFORNIA

17

WESTERN DIVISION

18 YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL
19 GARCIA; ANDRE BROWN; and SHAWN L. FEARS, individually and
20 on behalf of all others similarly situated,
21 Plaintiff-Petitioners,
22 v.
23 LOUIS MILUSNIC, in his capacity as
24 Warden of Lompoc; and MICHAEL CARVAJAL, in his capacity as
25 Director of the Bureau of Prisons,

26

Defendant-Respondents.

No. CV 20-4450- CBM-PVCx

RESPONDENTS’ NOTICE OF MOTION AND MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(1) AND 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES; AND [PROPOSED] ORDER

Hearing Date: August 4, 2020

Hearing Time: 10:00 a.m.

Ctrm:

8B

Honorable Consuelo B. Marshall United States District Judge

27

28

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1

TABLE OF CONTENTS

2 MEMORANDUM OF POINTS AND AUTHORITIES..................................................1

3 I. 4 II.

INTRODUCTION ................................................................................................1 RELEVANT PROCEDURAL BACKGROUND..................................................2

5 III. PETITIONERS’ ALLEGATIONS........................................................................3

6

A. Steps Taken at FCC Lompoc to Address COVID-19 ..................................3

7

B. Petitioners Have Not Complied with the BOP’s Grievance Process ............4

8 IV. LEGAL STANDARDS UNDER FED. R. CIV. P. 12(b)(1) AND 12(b)(6) ..........5

9 V. ARGUMENT........................................................................................................6

10

A. Petitioners’ Habeas Claim Fails as a Matter of Law ....................................6

11

1. The Court Lacks Jurisdiction Over Petitioners’ Habeas Claim..........6

12

2. Petitioners’ Habeas Claims Run Afoul of the BOP’s Judicially

Unreviewable Authority to Make Inmate Placement Decisions.........7

13 3. Petitioners Have Failed to Satisfy the Habeas Exhaustion

14

Requirements ....................................................................................9

15

B. Petitioners’ Non-Habeas Eighth Amendment Conditions-of-

Confinement Claim Should Be Dismissed ................................................11

16 1. Petitioners’ Allegations Do Not Support a Finding of

17

Deliberate Indifference ...................................................................11

18

2. Petitioners Cannot Satisfy the Subjective Test for Deliberate

Indifference.....................................................................................14

19 3. Petitioners Have Failed to Satisfy the PLRA’s Exhaustion

20

Requirements ..................................................................................17

21 VI. CONCLUSION ..................................................................................................18

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2 Federal Cases
3 Alvarez v. Larose,
4 2020 WL 2315807 (S.D. Cal. May 9, 2020) .............................................................. 6

5 Ashcroft v. Iqbal, 6 556 U.S. 662 (2009) ............................................................................................ 5, 18

7 Badea v. Cox,

931 F.2d 573 (9th Cir. 1991) ..................................................................................... 7 8

9

Balistreri v. Pacifica Police Dep’t., 901 F.2d 696 (9th Cir. 1990) ..................................................................................... 5

10 Bell Atlantic Corp. v. Twombly,

11 550 U.S. 544 (2007) .................................................................................................. 5

12 Bell v. Wolfish, 13 441 U.S. 520 (1979) .......................................................................................... 11, 12

14 Booth v. Churner,

15

532 U.S. 731 (2001) ................................................................................................ 17

16 Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973) ............................................................................................... vii

17 Brown v. Ives,
18 543 F. App’x 636 (9th Cir. 2013) .............................................................................. 9

19 Brown v. Sanders, 20 2011 WL 4899919 (C.D. Cal. Sept. 1, 2011) ............................................................. 9

21 Castro–Cortez v. INS, 22 239 F.3d 1037 (9th Cir. 2001) ................................................................................. 10
23 Chunn v. Edge, 2020 WL 3055669 (E.D.N.Y. Jun. 9, 2020) ...................................................... 13, 16
24 Crawford v. Bell,
25 599 F.2d 890 (9th Cir. 1979) ..................................................................................... 6
26 Crum v. Blanckensee, 27 2020 WL 3057799 (C.D. Cal. Jun. 8, 2020) .............................................................. 8

28

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1 Eighth Amendment. Whitley v. Albers,

2

475 U.S. 612 (1986) ................................................................................................ 11

3 Farmer v. Brennan, 511 U.S. 825 (1994) ......................................................................................... passim
4 Fernandez–Vargas v. Gonzales,
5 548 U.S. 30 (2006) .................................................................................................. 10

6 Govind v. Cash, 7 2013 WL 5220809 (C.D. Cal. Sept. 10, 2013) ................................................... 11, 17

8 Grinis v. Spaulding, 9 2020 WL 2300313 (May 8, 2020 D. Mass.) ............................................................ 13
10 Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542 (9th Cir. 1990) ................................................................................... 5
11 Helling v. McKinney,
12 509 U.S. 25 (1993) .................................................................................................. 13
13 Hertz Corp. v. Friend, 14 559 U.S. 77 (2010) .................................................................................................... 5

15 Ingraham v. Wright, 16 430 U.S. 651 (1977) ................................................................................................ 11
17 Jones v. Bock, 549 U.S. 199 (2007) ................................................................................................ 17
18 Kokkonen v. Guardian Life Ins. Co.,
19 511 U.S. 375 (1994) .................................................................................................. 4
20 Laing v. Ashcroft, 21 370 F.3d 994 (9th Cir. 2004) ................................................................................... 10

22 Livas v. Myers, 23 2020 WL 1939583 (W.D. La. Apr. 22, 2020) ........................................................ 6, 9
24 Marlowe v. LeBlanc, 2020 WL 2043425 (5th Cir. Apr. 27, 2020).............................................................. 15
25 Martinez v. Roberts,
26 804 F.2d 570 (9th Cir. 1986) ................................................................................... 10 27 McKune v. Lile, 28 536 U.S. 24 (2002) .................................................................................................... 9

iii

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1 Mills v. Schnier,

2

2010 WL 55504 (C.D. Cal. Jan. 7, 2010) ................................................................... 7

3 Money v. Pritzker, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020) ........................................................ 6, 16
4 Nellson v. Barnhart,
5 2020 WL 1890670 ............................................................................................. 10, 16

6 Plata v. Newsom, 7 2020 WL 1908776 (N.D. Cal. Apr. 17, 2020) ............................................................ 6

8 PLRA. Grinis v. Spaulding, 9 2020 WL 3097360 (D. Mass. Jun. 11, 2020) ............................................................. 6
10 Porter v. Nussle, 534 U.S. 516 (2002) ................................................................................................ 17
11 Reeb v. Thomas,
12 636 F.3d 1224 (9th Cir. 2011) ................................................................................... 8
13 Ross v. Blake, 14 136 S. Ct. 1850 (2016) ............................................................................................ 11

15 Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 16 873 F.2d 1221 (9th Cir. 1989) ................................................................................... 4
17 Swain v. Junior, 2020 WL 3167628 (11th Cir. Jun. 15, 2020) ......................................... 14, 15, 16, 17
18 United States v. Ceballos,
19 671 F.3d 852 (9th Cir. 2011) ..................................................................................... 8
20 United States v. Yates, 21 2019 WL 1779773 at *4 (D. Kan. Apr. 23, 2019) ...................................................... 9

22 Valentine v. Collier, 23 956 F.3d 797 (5th Cir. 2020) ............................................................................. 13, 18
24 Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136 (9th Cir. 2003) ................................................................................... 5
25 Wilson v. Seiter,
26 501 U.S. 294 (1991) .......................................................................................... 12, 16 27 Woodford v. Ngo, 28 548 U.S. 81 (2006) .................................................................................................. 17

iv

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 6 of 27 Page ID #:1503

1 Wragg v. Ortiz,

2

2020 WL 2745247 (D.N.J. May 27, 2020) .......................................................... 6, 16

3 Wragg v. Ortiz, 2020 WL 3074026 (D.N.J. Jun. 10, 2020) ............................................................... 17
4

5 Federal Statutes

6 5 U.S.C. § 702 ............................................................................................................... 1 18 U.S.C. § 3621(b) ....................................................................................................... 8
7 18 U.S.C. § 3621 ........................................................................................................ 8, 9
8 18 U.S.C. § 3624(c) ....................................................................................................... 7

9 28 U.S.C. § 1331............................................................................................................. 1

10 28 U.S.C. § 2241 .................................................................................................. 1, 6, 10

11 28 U.S.C. § 2243 ............................................................................................................ 1

12 28 U.S.C. § 3624(c) ....................................................................................................... 7
13 28 U.S.C. § 3624(c)(2) ................................................................................................... 7 42 U.S.C. § 1997e(a) .................................................................................................... 17
14

15 State Statutes 16 Section 12003 ............................................................................................................ 7, 8

17 18 Federal Regulations
28 C.F.R. § 542.18 ....................................................................................................... 10 19

20 Federal Rules 21 FED. R. CIV. P. 12(b)(1) ................................................................................. 1, vii, 4, 5 22 Fed. R. Civ. P. 12(b)(6) .................................................................................................. 5

23

24

25

26

27

28

v

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 7 of 27 Page ID #:1504

1

NOTICE OF MOTION AND MOTION TO DISMISS

2

PLEASE TAKE NOTICE that on Tuesday, August 4, 2020, at 10:00 a.m., or as

3 soon as thereafter the matter may be heard, Respondents Louis Milusnic, in his official

4 capacity as acting Warden of FCI Lompoc, and Michael Carvajal, in his official capacity

5 as Director of the Bureau of Prisons (the “BOP”) (collectively, “Respondents”)1 will, and

6 do hereby, move the Court to dismiss Yonnedil Carror Torres, Vincent Reed, Felix

7 Samuel Garcia, Andre Brown, and Shawn L. Fears’ (the “Petitioners’”) Complaint –

8 Class Action for Declaratory and Injunctive Relief and Petition for Writ of Habeas

9 Corpus (the “Complaint”) in its entirety for lack of jurisdiction and for failure to state a

10 claim, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). This motion

11 will be made before the Honorable Consuelo B. Marshall, United States District Judge,

12 in the First Street Courthouse located at 350 West 1st Street, Courtroom 8B, Los

13 Angeles, CA 90012.

14

Respondents bring this motion on the following grounds:

15

1) The Court lacks jurisdiction over Petitioners’ habeas claims;

16

2) Petitioners failed to exhaust their habeas claims;

17

3) Petitioners’ requested habeas relief runs afoul of the BOP’s authority to make

18

inmate placement decisions;

19

4) Petitioners Eighth Amendment conditions-of-confinement claim should be

20

dismissed because Petitioners fail to state a claim under the Eighth Amendment

21

for deliberate indifference; and

22

5) Petitioners’ Eighth Amendment conditions-of-confinement claim is barred by

23

their failure to exhaust required administrative remedies under the Prison

24

Litigation Reform Act.

25

26

1 The only proper respondent to a writ of habeas corpus is the custodian of the

inmate. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95 (1973).

27 Mr. Milusnic was the acting Warden at FCC Lompoc at the time the complaint was filed.

The current Warden is Patricia V. Bradley who assumed her post on June 7, 2020.

28 Warden Bradley, therefore, is the only proper respondent to a writ of habeas corpus as

the custodian of the inmate petitioners.

vi

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 8 of 27 Page ID #:1505

1

This motion is made upon this Notice, the attached Memorandum of Points and

2 Authorities, and all pleadings, records, and other documents on file with the Court in this

3 action, and upon such oral argument as may be presented at the hearing of this motion.

4

This motion is made following the conference of counsel pursuant to L.R. 7-3

5 which took place on June 17, 2020.

6 Dated: July 2, 2020

Respectfully submitted,

7

NICOLA T. HANNA

United States Attorney

8

DAVID M. HARRIS

Assistant United States Attorney

9

Chief, Civil Division

JOANNE S. OSINOFF

10

Assistant United States Attorney

Chief, General Civil Section

11

12 /s/ Keith M. Staub

13

KEITH M. STAUB

CHUNG H. HAN

14

JASMIN YANG

15

DAMON A. THAYER PAUL B. GREEN

16

Assistant United States Attorney

17

Attorneys for Respondents

18

19

20

21

22

23

24

25

26

27

28

vii

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 9 of 27 Page ID #:1506

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Petitioners’ Complaint brings two claims regarding their confinement at FCI

4 Lompoc and USP Lompoc (collectively “FCC Lompoc”): (1) a habeas claim under 28

5 U.S.C. § 2241 and 28 U.S.C. § 2243; and (2) a conditions-of-confinement claim for

6 injunctive relief under U.S. Const, Amend. VIII, 28 U.S.C. § 1331 and 5 U.S.C. § 702.

7 As to the habeas claim, Petitioners aver that “the fact of their confinement in prison itself

8 amounts to an Eighth Amendment violation under these circumstances, and nothing

9 short of an order ending their confinement at Lompoc will alleviate that violation.” Dkt.

10 No. 16 (“Compl.” ¶ 110). As to the conditions-of-confinement claim, Petitioners aver

11 that they “cannot take steps to protect themselves—such as social distancing, hand-

12 washing hygiene, or self-quarantining—and the government has not provided adequate

13 protections.” Id. ¶ 120. Petitioners assert that Respondents must “reduce the prison

14 population to allow for adequate social distancing and sufficient access to medical

15 care.” Id. ¶ 4 (emphasis in original).

16

Respondents now move to dismiss both claims. As to the habeas claim, the district

17 court in the companion case at FCI Terminal Island, Wilson v. Ponce, No. 20-4451, slip

18 op. (C.D. Cal. Jun. 10, 2020) (Hon. Michael F. Fitzgerald), found that district courts lack

19 subject matter jurisdiction over Petitioners’ habeas claim, and therefore denied those

20 petitioners’ ex parte application for a temporary restraining order (“TRO”) (“Wilson

21 Order”).2 Respondents respectfully submit that the Wilson Order as to the habeas claim

22 was correctly decided, and also request that this Court dismiss Petitioners’ habeas claim

23 for lack of jurisdiction.

24

In addition, Respondents respectfully request that the Court dismiss Petitioners’

25 conditions-of-confinement claim because this Court does not have jurisdiction to order a

26 prisoner release, even if couched in terms of home confinement or “enlargement.”

27

28

2 Petitioners attached Wilson Order to their notice of supplemental authority on

June 11, 2020. Dkt. No. 33-1.

1

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 10 of 27 Page ID #:1507

1 Further, numerous courts, including the Sixth Circuit Court of Appeals decision in

2 Wilson v. Williams, –F.3d–, 2020 WL 3056217 (6th Cir. Jun. 9, 2020) (“Williams”)

3 which overturned the decision on which Petitioners primarily relied, the Fifth and

4 Eleventh Circuit Court of Appeals, and the overwhelming majority of district courts that

5 have considered this issue in circumstances indistinguishable from those present here,

6 have found no Eighth Amendment violation. Dismissal is also proper because Petitioners

7 admittedly have not exhausted their administrative remedies under the Prison Litigation

8 Reform Act (“PLRA”).

9

For the reasons stated herein, and in prior filings, Respondents respectfully request

10 that the Court grant this motion.

11 II. RELEVANT PROCEDURAL BACKGROUND

12

On May 16, 2020, Petitioners filed their initial complaint. Dkt. No. 1. On June 1,

13 2020, Petitioners filed their “Corrected Complaint.” Dkt. No. 16. Respondents hereby

14 refer to the “Corrected Complaint” as the “Compl.”

15

On June 1, 2020, Petitioners also moved ex parte for a TRO requesting what they

16 described as a “process-based remedy for enlargement” of release of prisoners under the

17 Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), and the Attorney

18 General’s March 26 and April 3, 2020, memoranda. Dkt. No. 18. Respondents opposed

19 the TRO application on June 5, 2020, and Petitioners replied on June 9, 2020. Dkt. Nos.

20 25, 32. On June 4, 2020, Petitioners moved ex parte to certify a provisional class

21 consisting of “all current and future prisoners in post-conviction custody at Lompoc.”

22 Dkt. No. 22 at 1:16-18. Respondents opposed this application on June 9, 2020, and

23 Petitioners replied on June 11, 2020. Dkt. Nos. 29, 34.

24

On June 26, 2020, the Court issued a minute order setting Petitioners’ ex parte

25 applications for hearing on July 7, 2020. Dkt. No. 35.

26

27

28

2

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 11 of 27 Page ID #:1508

1 III. PETITIONERS’ ALLEGATIONS

2

A. Steps Taken at FCC Lompoc to Address COVID-19

3

Although Petitioners contend that they cannot protect themselves from COVID-

4 19, they admit that testing for COVID-19 has been conducted; inmates and staff were

5 provided with personal protective equipment (“PPE”); inmates were provided with

6 sanitation and cleaning supplies; and inmates testing positive have been separated from

7 those testing negative:

8 - Testing: Compl. ¶ 5 (referencing “recent round of mass testing”); id. ¶ 10

9

(acknowledging that Carror-Torres was tested in late-April 2020); id. ¶ 11 (Reed

10

was tested on March 27 or 28, 2020); id. ¶ 13 (Garcia tested negative for COVID-

11

19 in early May 2020).

12 - PPE: Compl. ¶ 16 (Fears was given a mask in late April 2020); id. ¶ 66 (officers

13

were given gloves by late March 2020); id. ¶ 67 (masks were distributed to prison

14

workers and correctional officers around April 2, 2020); id. at 60 (Garcia was

15

given a mask in late April 2020); Dkt. No. 18 (“TRO App.”) at 29:8-12 (asserting

16

inmates “were initially given 1 paper mask in early April and then 3 cloth masks

17

at the end April”); id. at 30:18-19 (“Respondents appear to have attempted to

18

isolate positive prisoners in early April”); id. at 49:6-7 (guards were issued PPE).

19 - Separation: Compl. ¶ 6 (alleging that a warehouse has been converted); id. ¶ 7

20

(“makeshift living spaces”); id. ¶ 13 (Garcia “moved to makeshift cell block”); id.

21

¶ 47 (“prison authorities began to isolate the infected in a variety of temporary

22

housing units”); id. ¶ 50 (warehouses were converted into cells and inmates were

23

not permitted to leave their cells); id. ¶ 51 (“effort to segregate Lompoc’s infected

24

population from its healthy and recovered population”); id. ¶52 (acknowledging

25

“isolation strategy”); id. ¶ 58 (Reed placed into solitary confinement while

26

awaiting results from testing); id. 53 (Carror-Torres placed in quarantine before

27

returning to cell) (Carror Decl. ¶ 9); id. at 56 (Reed moved to dormitory “along

28

with other prisoners who had tested positive for COVID-19) (Perales Decl. ¶ 7).

3

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 12 of 27 Page ID #:1509

1 - Sanitation And Cleaning Supplies: Compl. ¶ 65, n. 96 (BOP Director issued a

2

statement that “all cleaning, sanitation, and medical supplies have been

3

inventoried. Ample supplies are on hand and ready to be distributed or moved to

4

any facility as deemed necessary”); id. ¶ 74, n. 111 (BOP employees are “expected

5

to perform regular self-monitoring for symptoms, practice social distancing and to

6

disinfect and clean their work spaces”); id. at 63 (phones are cleaned between each

7

inmate’s call and Brown was able to speak with his attorney) (Wefald Decl. ¶ 5).3

8 Petitioners recognize Respondents’ response to COVID-19 included establishing and

9 constructing a Hospital Care Unit. Id. at 26 ¶ 55.

10

These measures appear to be working as there have been relatively few new

11 positive COVID-19 cases since the filing of the Complaint. FCI Lompoc currently has

12 zero inmates and two staff cases of COVID-19, and USP Lompoc currently has five

13 inmates and zero staff cases of COVID-19. See https://www.bop.gov/coronavirus/ (last

14 accessed July 2, 2020). Moreover, FCC Lompoc’s population has decreased from the

15 total population of 2,680 inmates alleged in the Complaint (¶ 2); FCI Lompoc currently

16 houses 974 inmates, and USP Lompoc, including the camps, currently houses 1,526

17 inmates (a total of 2,500 inmates). See https://www.bop.gov/locations/institutions/lof/

18 https://www.bop.gov/locations/institutions/lom/ (last accessed July 2, 2020).

19

B. Petitioners Have Not Complied with the BOP’s Grievance Process

20

Petitioners admit that none of them has completed any step of the BOP’s

21 administrative-grievance process. See TRO App. at 57:5-59:5.

22

23

24

3 Respondents have offered evidence on the extensive efforts they have taken to

address COVID-19 within the BOP and at Lompoc, including suspending movement

25 across BOP facilities; testing; enacting screening, isolation, quarantine, and social

distancing measures; conducting daily temperature checks; supplying inmates with

26 masks, soap, and hygiene supplies; and screening staff for symptoms and requiring them

to use PPE. See Dkt. No. 25-1 (“Engleman Decl.” ¶¶ 4, 51-86, 88). Currently, FCC

27 Lompoc is in Phase 7 of the BOP’s COVID-19 Action Plan, which requires that inmates

spend the majority of their time in their housing units, have their meals delivered to their

28 housing units, and are only permitted outside in small groups at prearranged times to

exercise and access telephones and computers. Id. ¶ 83.

4

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 13 of 27 Page ID #:1510

1 IV. LEGAL STANDARDS UNDER FED. R. CIV. P. 12(b)(1) AND 12(b)(6)

2

“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins.

3 Co., 511 U.S. 375, 377, (1994). “A federal court is presumed to lack jurisdiction in a

4 particular case unless the contrary affirmatively appears.” Stock W., Inc. v. Confederated

5 Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). A party may

6 seek dismissal of an action for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) “either

7 on the face of the pleadings or by presenting extrinsic evidence.” Warren v. Fox Family

8 Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Where the party asserts a factual

9 challenge, the court may consider extrinsic evidence demonstrating or refuting

10 the existence of jurisdiction without converting the motion to dismiss into a motion for

11 summary judgment. Id. The party asserting subject matter jurisdiction has the burden of

12 persuasion for establishing it. Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010).

13

A motion under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the

14 complaint. Dismissal is appropriate where the complaint lacks a cognizable legal theory

15 or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police

16 Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). A complaint may survive a motion to dismiss

17 only if, taking all well-pleaded factual allegations as true, it contains enough facts to

18 “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

19 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim

20 has facial plausibility when the plaintiff pleads factual content that allows the court to

21 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

22 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

23 statements, do not suffice.” Id. Although the scope of review is limited to the contents of

24 the complaint, the Court may consider exhibits submitted with the complaint. Hal Roach

25 Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.9 (9th Cir. 1990).

26

27

28

5

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 14 of 27 Page ID #:1511

1 V. ARGUMENT

2

A. Petitioners’ Habeas Claim Fails as a Matter of Law

3

1. The Court Lacks Jurisdiction Over Petitioners’ Habeas Claim

4

As Respondents explained in their opposition to the TRO application, and as the

5 Wilson Order recognized, Petitioners’ habeas claims are jurisdictionally barred. See Dkt.

6 No. 25 (“TRO Opp.”) at 45:2-49:19, incorporated herein; Wilson Order at 15-19. The

7 Sixth Circuit carved out a narrow exception in the habeas statute where “[t]o the extent

8 petitioners argue the alleged unconstitutional conditions of their confinement can be

9 remedied only be release, 28 U.S.C. § 2241 conferred upon the district court jurisdiction

10 to consider the petition.” Williams, 2020 WL 3056217, at *5. Williams, however, held

11 that “because the district court erred in concluding that petitioners have shown a

12 likelihood of success on the merits of their Eighth Amendment claim . . . the district

13 court abused its discretion in granting the preliminary injunction,” and vacated the

14 injunction. Id. at *1.

15

Other courts, including Alvarez v. Larose, 2020 WL 2315807, at *3 (S.D. Cal.

16 May 9, 2020) and Wragg v. Ortiz, 2020 WL 2745247, at *18 (D.N.J. May 27, 2020),

17 found that the inmate-petitioners “were not raising cognizable habeas claim because their

18 claims were ultimately premised on the conditions of confinement.” See Wilson Order at

19 18. In addition to Alvarez and Wragg, numerous other district courts have also found that

20 they lack jurisdiction to consider habeas claims within the COVID-19 prison context.

21 Recently, the district of Massachusetts found that the inmate-petitioners’ habeas claim

22 was a “false flag operation” because they are “[f]lying the banner of habeas corpus,” but

23 are truly seeking a “prisoner release order” as those terms are defined under the PLRA.

24 Grinis v. Spaulding, 2020 WL 3097360, at *4 (D. Mass. Jun. 11, 2020); see also Money

25 v. Pritzker, 2020 WL 1820660, at *12 (N.D. Ill. Apr. 10, 2020) (if a “mass release order”

26 is what the inmate petitioners seek, then the request “unquestionably could be awarded

27 only by a three-judge court under the PLRA”); Plata v. Newsom, 2020 WL 1908776, at

28 *9 (N.D. Cal. Apr. 17, 2020) (district court lacks the authority to issue an order “to

6

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 15 of 27 Page ID #:1512

1 reduce population levels to safe and sustainable levels in light of the COVID-19

2 pandemic”) (emphasis in original); Livas v. Myers, 2020 WL 1939583, at *7 (W.D. La.

3 Apr. 22, 2020) (no habeas jurisdiction because petitioners “do not and cannot contend

4 that their imprisonment or custody itself is unlawful”). Petitioners are making the same

5 arguments here, and their habeas claim must be similarly denied.

6

These cases were correctly decided because Petitioners’ complaints relating to the

7 conditions of confinement are outside of the scope of a writ for habeas corpus. See

8 Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979) (“the writ of habeas corpus is

9 limited to attacks upon the legality or duration of confinement”); Badea v. Cox, 931 F.2d

10 573, 574 (9th Cir. 1991) (“Habeas corpus proceedings are the proper mechanism for a

11 prisoner to challenge the ‘legality or duration’ of confinement,” but not to “challeng[e]

12 ‘conditions of . . . confinement’”) (citations omitted); Mills v. Schnier, 2010 WL 55504,

13 at *1 (C.D. Cal. Jan. 7, 2010) (Hon. Consuelo B. Marshall) (a challenge to conditions of

14 confinement “is not properly brought in a habeas corpus proceeding”) (citing Badea v.

15 Cox, 931 F.2d 573, 574 (9th Cir.1991)).

16

2. Petitioners’ Habeas Claims Run Afoul of the BOP’s Judicially

17

Unreviewable Authority to Make Inmate Placement Decisions

18

In addition to bringing an improper habeas claim, Petitioners’ demand that the

19 BOP “reduce the prison population” by transferring inmates to home confinement or to

20 other facilities is also not subject to judicial review. See Compl. ¶ 4 (emphasis omitted).

21 The BOP has sole discretion over inmate placement decisions. Nothing in the CARES

22 Act limits or proscribes the BOP’s sole discretion as to inmate placement decisions, nor

23 does anything in the CARES Act require that the BOP release Petitioners.

24

The CARES Act does not abridge or limit the BOP’s discretion in making

25 placement determinations, including placement to home confinement. 28 U.S.C.

26 § 3624(c) limits the amount of time a prisoner may be placed to home confinement for

27 the shorter of 10 percent of the term of imprisonment or six months. Section 12003 of

28 the CARES Act provides that during the covered emergency period, the BOP Director is

7

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 16 of 27 Page ID #:1513

1 authorized to lengthen the maximum amount of time the Director may place inmates in

2 home confinement under 28 U.S.C. § 3624(c)(2). Thus, the BOP temporarily has the

3 authority to place certain inmates on home confinement under 18 U.S.C. § 3624(c)

4 without regard to the six month/ten percent of term imprisonment time limits found in

5 that section. Pursuant to the expansion of time for home confinement permitted under the

6 CARES Act, the BOP has already exercised its discretion and already placed thousands

7 of inmates on home confinement.4 That the BOP has not placed as many people as

8 Petitioners would like to home confinement is judicially unreviewable. Petitioners,

9 moreover, may disagree with the BOP’s suitability criteria (e.g., PATTERN recidivism

10 scores, the determination that those transferred to home confinement may not be violent

11 or sex offenders), but nothing in the CARES Act limits or restricts the BOP Director’s

12 sole discretion to determine whether, when, and for how long to place inmates on home

13 confinement. To the contrary, in passing the CARES Act, Congress preserved the

14 Director’s authority to use it “as the Director deems appropriate.” CARES Act, PL 116-

15 136, 134 Stat 281 § 12003(b) (Mar. 27, 2020).

16

Further, no court has the authority to order the BOP to place an inmate to home

17 confinement because 18 U.S.C. §§ 3621(b) and 3625 prohibit a court from reviewing the

18 BOP’s decision of where to place an inmate. Reeb v. Thomas, 636 F.3d 1224, 1226-28

19 (9th Cir. 2011) (courts lack jurisdiction to review BOP’s placement decisions under 18

20 U.S.C. §§ 3621-25); United States v. Ceballos, 671 F.3d 852, 855 (9th Cir. 2011)

21 (“[T]he court has no jurisdiction to select the place where the sentence will be served.

22 Authority to determine place of confinement resides in the executive branch of

23 government and is delegated to the Bureau of Prisons.”); 18 U.S.C. § 3621(b) (the BOP

24 “shall designate the place of the prisoner’s imprisonment,” and that this designation is

25

26

4 BOP Director Michael Carvajal testified to Congress that as of June 2, 2020,

more than 6,000 inmates were placed on home confinement. See Video of Senate

27 Judiciary Hearing, available at https://www.judiciary.senate.gov/meetings/examining-

best-practices-for-incarceration-and-detention-during-covid-19. See also BOP website

28 (https://www.bop.gov/coronavirus/) reporting that since March 26, 2020, BOP placed an

additional 4,617 inmates on home confinement (last accessed July 1, 2020).

8

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 17 of 27 Page ID #:1514

1 “not reviewable by any court”). In Crum v. Blanckensee, 2020 WL 3057799, at *3 (C.D.

2 Cal. Jun. 8, 2020) (Hon. David O. Carter), the district court dismissed an inmate’s

3 habeas petition requesting transfer to home confinement in light of the COVID-19

4 pandemic and the conditions at FCI Lompoc given 18 U.S.C. § 3621’s express

5 prohibition against judicial review. In dismissing the habeas petition, the court noted that

6 “the decision whether to place the petitioner in home confinement is within the exclusive

7 province of the BOP and is not subject to judicial review.” Id.

8

The Supreme Court has found that “[i]t is well settled that the decision where to

9 house inmates is at the core of prison administrators’ expertise.” McKune v. Lile, 536

10 U.S. 24, 39 (2002). Although the statute does not define “place of imprisonment,” a

11 district court presiding over a challenge to COVID-19 conditions at a federal prison

12 recently noted that “[b]oth placement at a Residential Reentry Center (‘RRC’) (more

13 commonly known as a halfway house) and on home confinement are within the BOP’s

14 discretion” under this provision. Livas, 2020 WL 1939583 at *6; cf. United States v.

15 Yates, 2019 WL 1779773 at *4 (D. Kan. Apr. 23, 2019) (“[I]t is BOP – not the courts –

16 who decides whether home detention is appropriate.”); Brown v. Sanders, 2011 WL

17 4899919, at *2 n.3 (C.D. Cal. Sept. 1, 2011) (place of detention “immaterial” under

18 § 3621 given the BOP’s sole discretion), aff’d sub. nom Brown v. Ives, 543 F. App’x 636

19 (9th Cir. 2013). Given Section 3621’s express prohibition against judicial review and the

20 clear precedent supporting home confinement as a “place of imprisonment,” the Court

21 should dismiss Petitioners’ habeas claim for this additional reason.

22

3. Petitioners Have Failed to Satisfy the Habeas Exhaustion

23

Requirements

24

Petitioners argued in their TRO application that their exhaustion of administrative

25 remedies under § 2241 “should be waived” because there was “no administrative process

26 for CARES Act release to home confinement” and they should be excused from

27 exhausting compassionate release requests because “typically the BOP has 30 days to

28 respond to such applications,” and FCC Lompoc is purportedly overwhelmed with such

9

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 18 of 27 Page ID #:1515

1 requests. See TRO App. at 54:23-57:4 (emphasis omitted). As explained above, the BOP

2 has sole discretion in utilizing the CARES Act; thus, Respondents agree that under the

3 procedures developed by the BOP, Petitioners were not required to submit a request to

4 staff in order to be considered for placement on home confinement under the CARES

5 Act. However, inmates who are dissatisfied with the BOP’s initial home confinement

6 decision are required to exhaust administrative remedies with the BOP. Moreover, they

7 are not permitted to seek judicial review of BOP home confinement decisions under the

8 CARES Act.

9

Similarly, as for Petitioners’ request for compassionate release, Petitioners were

10 required to exhaust and they should not be permitted to evade the exhaustion

11 requirement when they admittedly did not even try to utilize the administrative

12 process. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (federal inmates are

13 required to exhaust their administrative remedies prior to bringing a petition for a writ

14 of habeas corpus). Federal courts “require as a prudential matter, that habeas petitioners

15 exhaust available judicial and administrative remedies before seeking relief under §

16 2241. . . . Prudential limits, like jurisdictional limits and limits on venue, are ordinarily

17 not optional.” Castro–Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on

18 another ground by Fernandez–Vargas v. Gonzales, 548 U.S. 30 (2006). Thus, while

19 “courts have discretion to waive the exhaustion requirement when prudentially required,

20 this discretion is not unfettered.” Laing v. Ashcroft, 370 F.3d 994, 998 (9th Cir. 2004).

21

Finally, Petitioners do not contend that they even attempted to utilize any

22 administrative process for relief before filing suit, including under “28 C.F.R. § 542.18

23 [which] offers inmates an emergency procedure, where, if the request is determined to be

24 of an emergency nature which threatens the inmate’s immediate health or welfare, the

25 Warden shall respond no later than the third calendar day after filing.” Nellson v.

26 Barnhart, 2020 WL 1890670, at *4 (D. Col. Apr. 16, 2020) (internal quotations omitted

27 and capitalization normalized). Because Petitioners did not even attempt to utilize any

28 administrative process, their habeas claims fail for the additional reason for failure to

10

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1 exhaust. See id. at *4-5 (noting that the Supreme Court “defines availability as some

2 relief, not all relief, that an inmate seeks” and because the plaintiff “does not argue that

3 he would be able to receive no relief whatsoever through the administrative grievance

4 process but, rather, that the process would not be able to institute all the relief he

5 requests immediately” he has failed to exhaust administrative remedies before seeking

6 judicial relief) (citing Ross v. Blake, 136 S. Ct. 1850, 1859 (2016)).

7

B. Petitioners’ Non-Habeas Eighth Amendment Conditions-of-

8

Confinement Claim Should Be Dismissed

9

1. Petitioners’ Allegations Do Not Support a Finding of Deliberate

10

Indifference

11

a. Standard for Deliberate Indifference

12

In a conditions-of-confinement case, a prison official violates the prohibition

13 against “cruel and unusual punishments,” U.S. Const. Amend. VIII, “only when two

14 requirements”—one objective, the other subjective—“are met.” Farmer v. Brennan, 511

15 U.S. 825, 834, 846 (1994). To satisfy the Eighth Amendment standards, prison officials

16 must ensure that inmates receive adequate food, clothing, shelter, and medical care, and

17 must “take reasonable measures to guarantee the safety of the inmates.” Id. at 832

18 (citations omitted). Inmates alleging Eighth Amendment violations based on unsafe

19 prison conditions must demonstrate that prison officials were deliberately indifferent to

20 their health or safety by subjecting them to a substantial risk of harm. Id. at 834. Prison

21 officials display a deliberate indifference to an inmate’s well-being when they

22 consciously disregard an excessive risk of harm to the inmate’s health or safety. Id. at

23 838-40. It is “only ‘the unnecessary and wanton infliction of pain’ … [which] constitutes

24 cruel and unusual punishment forbidden by the Eighth Amendment. Whitley v. Albers,

25 475 U.S. 612, 619 (1986) (quoting Ingraham v. Wright, 430 U.S. 651, 670 (1977)); see

26 also Govind v. Cash, 2013 WL 5220809, at *3 (C.D. Cal. Sept. 10, 2013) (Hon.

27 Consuelo B. Marshall) (“Generally, a difference of opinion between an inmate and

28

11

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1 medical staff as to the nature of appropriate medical treatment is insufficient, as a matter

2 of law, to constitute deliberate indifference.”) (citing Ninth Circuit cases).

3

“[I]f a particular condition or restriction … is reasonably related to a legitimate

4 governmental objective, it does not, without more, amount to ‘punishment.’” Bell v.

5 Wolfish, 441 U.S. 520, 539 (1979). “[T]he effective management of a detention facility

6 … is a valid objective that may justify the imposition of conditions” that are

7 discomforting and restrictive, without the indifference that such restrictions are intended

8 as punishment. Id. at 450. Moreover, “it is obduracy and wantonness, not inadvertence or

9 error in good faith, that characterize the conduct prohibited by the Cruel and Unusual

10 Punishments Clause, whether that conduct occurs in connection with establishing

11 conditions of confinement, supplying medical needs, or restoring official control over a

12 tumultuous cellblock.” Wilson v. Seiter, 501 U.S. 294, 299 (1991).

13

“[A] prison official violates the Eighth Amendment only when two requirements

14 are met” – both and objective and subjective component. See Farmer, 511 U.S. at 834.

15 The objective component of an Eighth Amendment claim requires that the deprivation

16 must be “sufficiently serious.” Id. at 833. “[O]nly those deprivations denying ‘the

17 minimal civilized measure of life’s necessities’ … are sufficiently grave to form the

18 basis of an Eighth Amendment violation.” Wilson, 501 U.S. at 298. The inmate must

19 show that he is incarcerated under conditions posing a substantial risk of harm. See

20 Farmer, 511 U.S. at 837.

21

The subjective component relates to the defendant’s state of mind, and requires

22 deliberate indifference. See Farmer, 511 U.S. at 834. To satisfy this requirement,

23 Petitioners must show that Respondents “kn[ew] of and disregard[ed] an excessive risk

24 to inmate health or safety.” Id. at 837. To satisfy this standard, the prison official must

25 have a “sufficiently culpable state of mind.” Id. at 833. This test is subjective, meaning

26 “the official must both be aware of facts from which the inference could be drawn that a

27 substantial risk of serious harm exists, and he must also draw the inference.” Id.

28

12

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1

b. Petitioners Cannot Demonstrate that They Are Subject to an

2

Unreasonable Risk of Harm

3

The “objective prong” of the Eighth Amendment requires a showing that an

4 inmate has been deprived “of the minimal civilized measure of life’s necessities.”

5 Farmer, 511 U.S. at 834. When this deprivation involves a risk of harm, this prong

6 requires the inmate to show that “society considers the risk that the prisoner complains

7 of to be so grave that it violates contemporary standards of decency to expose anyone

8 unwillingly to such a risk. In other words, the prisoner must show that the risk of which

9 he complains is not one that today’s society chooses to tolerate.” Helling v. McKinney,

10 509 U.S. 25, 36 (1993).

11

Petitioners cannot show that the BOP is depriving them of the “minimal civilized

12 measure of life’s necessities” or “violating contemporary standards of decency” in

13 addressing the risk of harm to inmates that COVID-19 presents. “A prison official’s duty

14 under the Eighth Amendment is to ensure reasonable safety.” Farmer, 511 U.S. at 844.

15 The current state of the COVID-19 pandemic exposes everyone—prisoner and non-

16 prisoner alike—to the risk of falling ill. The Complaint acknowledges in several places

17 that FCI Lompoc has tested every single inmate, and that FCC Lompoc has provided

18 medical care and medication to prisoners, has taken steps to increase the ability for

19 inmates to practice social distancing, has provided inmates with masks and cleaning

20 supplies, has distributed masks to staff, has taken cohorting and quarantine measures,

21 and has considered inmates for home confinement under the CARES Act and has in fact

22 placed inmates on home confinement. See § III.A. supra. That these measures have not

23 been done to Petitioners’ satisfaction or that they have issues with how those measures

24 were undertaken is insufficient to show deliberate indifference as the Fifth Circuit held

25 in Valentine v. Collier, 956 F.3d 797, 801-02 (5th Cir. 2020) (compliance with CDC

26 recommendations, including “access to soap, tissues, gloves, masks, regular cleaning,

27 signage and education, quarantine of new prisoners, and social distancing during

28 transport” satisfies the Eighth Amendment). See also Chunn v. Edge, 2020 WL 3055669,

13

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 22 of 27 Page ID #:1519

1 at *24 (E.D.N.Y. Jun. 9, 2020) (petitioners could not meet the objective component of

2 the Eighth Amendment test “given the measures that prison officials have instituted to

3 address COVID-19 and the best available evidence regarding those measures’ results”);

4 Grinis v. Spaulding, 2020 WL 2300313, at *3 (May 8, 2020 D. Mass.) (“These

5 affirmative steps may or may not be the best possible response to the threat of COVID-

6 19 within the institution, but they undermine an argument that the respondents have been

7 actionably deliberately indifferent to the health risks of inmates.”).

8

2. Petitioners Cannot Satisfy the Subjective Test for Deliberate

9

Indifference

10

Petitioners also fail to satisfy the subjective prong of their Eighth Amendment

11 claim, which requires them to show that Respondents “kn[ew] of and disregard[ed] an

12 excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. This test is

13 subjective, meaning “the official must both be aware of facts from which the inference

14 could be drawn that a substantial risk of serious harm exists, and he must also draw the

15 inference.” Id. The Eighth Amendment does not require perfect results. See id. at 844

16 (“prison officials who actually knew of a substantial risk to inmate health or safety may

17 be found free from liability if they responded reasonably to the risk, even if the harm

18 ultimately was not averted”).

19

To establish an entitlement to injunctive relief, Petitioners must show that BOP

20 officials currently are acting with deliberate indifference. Where a prisoner “seeks

21 injunctive relief to prevent a substantial risk of serious injury from ripening into actual

22 harm, the subjective factor . . . should be determined in light of the prison authorities’

23 current attitudes and conduct[.]” Id. at 845 (internal quotation marks omitted). Thus,

24 Petitioners must show that today, Respondents are recklessly disregarding an excessive

25 risk to Petitioners’ safety, and that they will continue to do so “into the future.” Id. The

26 Fifth, Sixth and Eleventh Circuits found no Eighth Amendment violations in

27 substantially similar circumstances as to those here involving COVID-19 at correctional

28 facilities, and reversed district court decisions granting injunctive relief.

14

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 23 of 27 Page ID #:1520

1

In Swain v. Junior, –F.3d–, 2020 WL 3167628, at *6 (11th Cir. Jun. 15, 2020), the

2 district court issued an injunction finding that prison officials were deliberately

3 indifferent because it was not possible for inmates to be at least six feet apart at all times

4 and because the rate of COVID-19 infections had increased. The Eleventh Circuit

5 reversed the district court, noting that, with respect to the infection rate at the facility,

6 resulting harm cannot alone establish a culpable state of mind. Id. at *7. It found no

7 Eighth Amendment liability if prison officials respond reasonably to a risk to inmate

8 health, “even if the harm ultimately was not averted.” Id. (quoting Farmer, 511 U.S. at

9 844) (emphasis in original). The Eleventh Circuit found that where prison officials “took

10 numerous other measures—besides social distancing—to mitigate the spread of the

11 virus,” including requiring the use of face masks, screening of staff into the facility, daily

12 temperature screening, suspending outside visitation, and providing disinfecting and

13 hygiene supplies to all inmates, prison officials could not be found liable because they

14 could not meet the subjective component under the Eighth Amendment. Id. at *8

15 (emphasis in original).

16

In Williams, the Sixth Circuit also vacated the district court’s injunction and held

17 that petitioners could not satisfy the subjective prong of an Eighth Amendment violation

18 where BOP had responded reasonably to the risk of COVID-19 at FCI Elkton by

19 implementing screening, testing, isolation, and hygiene measures, limiting inmate

20 movement, and providing inmates and staff with masks and PPE. 2020 WL 3056217, at

21 *7-8. Williams noted that the Fifth and Eleventh Circuits had already found similar

22 measures to constitute a reasonable response to COVID-19 such that there was no

23 tenable Eighth Amendment claim. Id. at *9 (citing Swain (per curiam); Valentine (per

24 curiam); Marlowe v. LeBlanc, 2020 WL 2043425 (5th Cir. Apr. 27, 2020) (per curiam)).

25

Recently, the Eastern District of New York also found that petitioners could not

26 meet the subjective component of the Eighth Amendment test because the BOP has

27 “imposed dozens of measures, such as (i) enhancing intake screening procedures for all

28 inmates and staff, (ii) providing soap and other cleaning products to inmates at no cost,

15

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 24 of 27 Page ID #:1521

1 (iii) increasing cleaning of common areas and shared items, (iv) isolating symptomatic

2 inmates, (v) broadly distributing and using PPE to prevent transmission of the virus, and

3 (vi) modifying operations throughout the facility to facilitate social distancing to the

4 greatest extent possible and abate the risk of spread . . . belie any suggestion that prison

5 officials ‘have turned the kind of blind eye and deaf ear to a known problem that would

6 indicate’ deliberate indifference.” Chunn, 2020 WL 3055669, at *26 (quoting Money,

7 2020 WL 1820660, at *18; Swain, 958 F.3d at 1090)).

8

Similarly, Petitioners here cannot satisfy the subjective requirement of an Eighth

9 Amendment conditions-of-confinement claim. BOP officials have not acted with

10 deliberate indifference to the risk that COVID-19 poses to inmate populations; rather,

11 they have taken aggressive and appropriate measures to abate that risk at FCC Lompoc.

12 In the Complaint, Petitioners acknowledge that mass testing has been done, that inmates

13 are provided with masks and disinfectant, and that FCC Lompoc has taken steps to

14 cohort inmates and to provide them with more space. Although Petitioners may have

15 concerns about the implementation about these measures (e.g., they complain that

16 isolation of infected people occurred for a time in the Special Housing Unit and staff

17 were not issued masks until April 2, 2020), it does not rise to the level of deliberate

18 indifference. See Wragg, 2020 WL 2745247, at *21 (no Eighth Amendment violation

19 because there is “no evidence of Respondents’ liable state of mind” and noting “physical

20 distancing is not possible in a prison setting, as Petitioners urge, does not an Eighth

21 Amendment claim make and, as such, Petitioners are not likely to succeed on the

22 merits”); Nellson, 2020 WL 1890670, at *6 (“Assuming that the objective component [of

23 deliberate indifference] is met, and that prison officials know of the risk of COVID-19,

24 plaintiff has not demonstrated that defendants have disregarded that risk.”); Money, 2020

25 WL 1820660, at *18 (prisoner petitioners have “no chance of success” as to deliberate

26 indifference because of the measures taken by the Illinois Department of Corrections).

27

As such, Petitioners cannot succeed on their Eighth Amendment claim given the

28 actions taken by the BOP at FCC Lompoc. See Farmer, 511 U.S. at 845 (“[P]rison

16

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 25 of 27 Page ID #:1522

1 officials who act reasonably cannot be found liable under the Cruel and Unusual

2 Punishments Clause.”). Here, Respondents acted with a high degree of care, and

3 certainly were not acting with deliberate indifference that would transform conditions at

4 FCC Lompoc into an Eighth Amendment “punishment.” See Wilson v. Seiter, 501 U.S.

5 at 298, 300.

6

3. Petitioners Have Failed to Satisfy the PLRA’s Exhaustion

7

Requirements

8

The Supreme Court was clear when it held that “we will not read futility or other

9 exceptions into statutory exhaustion requirements where Congress has provided

10 otherwise.” Booth v. Churner, 532 U.S. 731, 741 (2001). Respondents do not have the

11 burden of demonstrating the availability of administrative remedies where Petitioners

12 have not submitted a single fact that could support any claim that they attempted to

13 pursue administrative remedies but were thwarted. See id. The PLRA’s exhaustion

14 requirement applies to Petitioners’ Eighth Amendment claims concerning prison

15 conditions, which requires an inmate, before filing suit, to exhaust all available

16 administrative remedies. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 532

17 (2002) (the exhaustion requirement applies to all suits regarding prison life); Jones v.

18 Bock, 549 U.S. 199, 211 (2007) (“unexhausted claims cannot be brought in court”);

19 Farmer, 511 U.S. at 847 (in cases seeking injunctive relief to address “current” prison

20 conditions, inmates are not “free to bypass adequate internal prison procedures and bring

21 their health and safety concerns directly to court”); see also Govind, 2013 WL 5220809,

22 at *7 (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal, so long

23 as no exception to exhaustion applies.”).

24

Indeed, the Eleventh Circuit affirmed the PLRA exhaustion requirement within

25 the COVID-19 context, holding: “There is no question that exhaustion is mandatory

26 under the PLRA and that unexhausted claims cannot be brought in court.” Swain, 2020

27 WL 3167628, at *11 (quoting Jones, 549 U.S. at 211); see also Wragg v. Ortiz, 2020

28 WL 3074026, at *2 (D.N.J. Jun. 10, 2020) (“the Court takes this opportunity once again

17

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 26 of 27 Page ID #:1523

1 to reiterate its view that a vulnerable inmate who is truly at risk is able to pursue the

2 statutory avenues of relief available to him”).

3

Had Petitioners attempted to utilize the administrative process, the BOP could

4 have attempted to fix the problems for which they now demand injunctive relief, i.e., if

5 they had requested medical service, additional masks, hand sanitizer, etc. Woodford v.

6 Ngo, 548 U.S. 81, 89 (2006) (exhaustion provides the BOP with “an opportunity to

7 correct its own mistakes with respect to the programs it administers before it is haled into

8 federal court”). The fact that Petitioners did not even attempt to exhaust administrative

9 remedies, or present facts that any such attempt would have been futile is an additional

10 reason why their conditions-of-confinement claim should be dismissed. If Petitioners are

11 given leave to amend, they must state facts supporting their arguments that exhaustion

12 would be “futile due to the urgency of the COVID-19 pandemic” and administrative

13 remedies have been made “effectively unavailable at this time” in order to satisfy Iqbal’s

14 pleading requirements. Iqbal, 556 U.S. at 678; see also Valentine, 956 F.3d at 804 (suit

15 “premature” where inmates did not utilize the administrative process when they were

16 “required to exhaust”).

17 VI. CONCLUSION

18

For the foregoing reasons, the Respondents respectfully request that the Court

19 dismiss Petitioners’ Complaint.

20

21

22

23

24

25

26

27

28

18

Case 2:20-cv-04450-CBM-PVC Document 36 Filed 07/02/20 Page 27 of 27 Page ID #:1524

1 Dated: July 2, 2020 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted, NICOLA T. HANNA United States Attorney DAVID M. HARRIS Assistant United States Attorney Chief, Civil Division JOANNE S. OSINOFF Assistant United States Attorney Chief, General Civil Section
/s/ Keith M. Staub KEITH M. STAUB CHUNG H. HAN JASMIN YANG DAMON A. THAYER PAUL B. GREEN Assistant United States Attorney Attorneys for Respondents
19

Case 2:20-cv-04450-CBM-PVC Document 36-1 Filed 07/02/20 Page 1 of 15 Page ID #:1525

1

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

FOR THE CENTRAL DISTRICT OF CALIFORNIA

11

WESTERN DIVISION

12 YONNEDIL CARROR TORRES; VINCENT REED; FELIX SAMUEL
13 GARCIA; ANDRE BROWN; and SHAWN L. FEARS, individually and
14 on behalf of all others similarly situated,
15 Plaintiff-Petitioners,
16 v.
17 LOUIS MILUSNIC, in his capacity as
18 Warden of Lompoc; and MICHAEL CARVAJAL, in his capacity as
19 Director of the Bureau of Prisons,

No. CV 20-4450-CBM-PVCx

[PROPOSED] ORDER GRANTING RESPONDENTS’ MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(1) AND 12(b)(6)

Hearing Date: August 4, 2020

Hearing Time: 10:00 a.m.

Ctrm:

8B

Honorable Consuelo B. Marshall United States District Judge

20

Defendant-Respondents.

21

22

23

24

25

26

27

28

Case 2:20-cv-04450-CBM-PVC Document 36-1 Filed 07/02/20 Page 2 of 15 Page ID #:1526

1

Petitioners’ Complaint brings two claims concerning their confinement at FCI

2 Lompoc and USP Lompoc (hereinafter collectively referred to as “FCC Lompoc”): (1) a

3 habeas claim under 28 U.S.C. § 2241 and 28 U.S.C. § 2243; and (2) a conditions-of-

4 confinement claim for injunctive relief under 28 U.S.C. § 1331 and 5 U.S.C. § 702. As

5 to the habeas claim, Petitioners aver that “the fact of their confinement in prison itself

6 amounts to an Eighth Amendment violation under these circumstances, and nothing

7 short of an order ending their confinement at Lompoc will alleviate that violation.” Dkt.

8 No. 16 (“Compl.” ¶ 110). As to the conditions-of-confinement claim, Petitioners aver

9 that they “cannot take steps to protect themselves—such as social distancing, hand-

10 washing hygiene, or self-quarantining—and the government has not provided adequate

11 protections.” Id. ¶ 120. Petitioners assert that Respondents must “reduce the prison

12 population to allow for adequate social distancing and sufficient access to medical

13 care.” Id. ¶ 4 (emphasis in original).

14

Respondents now move to dismiss both claims. As to the habeas claim, the district

15 court in the companion case at FCI Terminal Island, Wilson v. Ponce, No. 20-4451, slip

16 op. (C.D. Cal. Jun. 10, 2020) (Hon. Michael F. Fitzgerald), found that district courts lack

17 subject matter jurisdiction over Petitioners’ habeas claim, and therefore denied those

18 petitioners’ ex parte application for a temporary restraining order (“TRO”) (“Wilson

19 Order”). For the same reasons articulated in the Wilson Order, the Court hereby

20 dismisses Petitioners’ habeas claim. The Court also dismisses Petitioners’ conditions-of-

21 confinement claim because the Court does not have jurisdiction to order a prisoner

22 release, even if couched in terms of home confinement or “enlargement.” Further,

23 numerous courts, including the Sixth Circuit Court of Appeals decision in Wilson v.

24 Williams, which overturned the decision on which Petitioners primarily relied, the Fifth

25 and Eleventh Circuit Court of Appeals, and the overwhelming majority of district courts

26 that have considered this issue in circumstances indistinguishable from those present

27 here, have found no Eighth Amendment violation. Dismissal is also proper because

28 Petitioners admittedly have not exhausted their administrative remedies under the PLRA.

1

Case 2:20-cv-04450-CBM-PVC Document 36-1 Filed 07/02/20 Page 3 of 15 Page ID #:1527

1

For these reasons, the Court grants Respondents’ motion to dismiss.

2 I. RELEVANT PROCEDURAL BACKGROUND

3

On May 16, 2020, Petitioners filed their initial complaint. Dkt. No. 1. On June 1,

4 2020, Petitioners filed their “Corrected Complaint.” Dkt. No. 16. Respondents hereby

5 refer to the “Corrected Complaint” as the “Compl.”

6

On June 1, 2020, Petitioners also moved ex parte for a TRO requesting what they

7 described as a “process-based remedy for enlargement” of release of prisoners under the

8 Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), and the Attorney

9 General’s March 26 and April 3, 2020, memoranda. Dkt. No. 18. Respondents opposed

10 the TRO application on June 5, 2020, and Petitioners replied on June 9, 2020. Dkt. Nos.

11 25, 32. On June 4, 2020, Petitioners moved ex parte to certify a provisional class

12 consisting of “all current and future prisoners in post-conviction custody at Lompoc.”

13 Dkt. No. 22 at 1:16-18. Respondents opposed this application on June 9, 2020, and

14 Petitioners replied on June 11, 2020. Dkt. Nos. 29, 34. On June 26, 2020, the Court

15 issued a minute order setting Petitioners’ ex parte applications for hearing on July 7,

16 2020. Dkt. No. 35.

17

Respondents moved to dismiss Petitioners’ Complaint on July 3, 2020. Dkt. No.

18 36.

19 II. PETITIONERS’ ALLEGATIONS

20

A. Steps Taken at FCC Lompoc to Address COVID-19

21

Petitioners admit that testing for COVID-19 has been conducted; inmates and staff

22 were provided with personal protective equipment (“PPE”); inmates were provided with

23 sanitation and cleaning supplies; and inmates testing positive have been separated from

24 those testing negative:

25

- Testing: Compl. ¶ 5 (referencing “recent round of mass testing”); id. ¶ 10

26

(acknowledging that Carror-Torres was tested in late-April 2020); id. ¶ 11 (Reed

27

was tested on March 27 or 28, 2020); id. ¶ 13 (Garcia tested negative for COVID-

28

19 in early May 2020).

2

Case 2:20-cv-04450-CBM-PVC Document 36-1 Filed 07/02/20 Page 4 of 15 Page ID #:1528

1 - PPE: Compl. ¶ 16 (Fears was given a mask in late April 2020); id. ¶ 66 (officers

2

were given gloves by late March 2020); id. ¶ 67 (masks were distributed to prison

3

workers and correctional officers around April 2, 2020); id. at 60 (Garcia was

4

given a mask in late April 2020); Dkt. No. 18 (“TRO App.”) at 29:8-12 (asserting

5

inmates “were initially given 1 paper mask in early April and then 3 cloth masks

6

at the end April”); id. at 30:18-19 (“Respondents appear to have attempted to

7

isolate positive prisoners in early April”); id. at 49:6-7 (guards were issued PPE).

8 - Separation: Compl. ¶ 6 (alleging that a warehouse has been converted); id. ¶ 7

9

(“makeshift living spaces”); id. ¶ 13 (Garcia “moved to makeshift cell block”); id.

10

¶ 47 (“prison authorities began to isolate the infected in a variety of temporary

11

housing units”); id. ¶ 50 (warehouses were converted into cells and inmates were

12

not permitted to leave their cells); id. ¶ 51 (“effort to segregate Lompoc’s infected

13

population from its healthy and recovered population”); id. ¶52 (acknowledging

14

“isolation strategy”); id. ¶ 58 (Reed placed into solitary confinement while

15

awaiting results from testing); id. 53 (Carror-Torres placed in quarantine before

16

returning to cell) (Carror Decl. ¶ 9); id. at 56 (Reed moved to dormitory “along

17

with other prisoners who had tested positive for COVID-19) (Perales Decl. ¶ 7).

18 - Sanitation And Cleaning Supplies: Compl. ¶ 65, n. 96 (BOP Director issued a

19

statement that “all cleaning, sanitation, and medical supplies have been

20

inventoried. Ample supplies are on hand and ready to be distributed or moved to

21

any facility as deemed necessary”); id. ¶ 74, n. 111 (BOP employees are “expected

22

to perform regular self-monitoring for symptoms, practice social distancing and to

23

disinfect and clean their work spaces”); id. at 63 (phones are cleaned between each

24

inmate’s call and Brown was able to speak with his attorney) (Wefald Decl. ¶ 5).1

25

26

1 Respondents have offered evidence on the extensive efforts they have taken to

address COVID-19 within the BOP and at FCC Lompoc, including suspending

27 movement across BOP facilities; testing; enacting screening, isolation, quarantine, and

social distancing measures; conducting daily temperature checks; supplying inmates with

28 masks, soap, and hygiene supplies; and screening staff for symptoms and requiring them

3

Case 2:20-cv-04450-CBM-PVC Document 36-1 Filed 07/02/20 Page 5 of 15 Page ID #:1529

1 Petitioners recognize Respondents’ response to COVID-19 included establishing and

2 constructing a Hospital Care Unit. Id. at 26 ¶ 55.

3

These measures appear to be working as there have been relatively few new

4 positive COVID-19 cases since the filing of the Complaint. FCI Lompoc currently has

5 zero inmates and two staff cases of COVID-19, and USP Lompoc currently has five

6 inmates and zero staff cases of COVID-19. See https://www.bop.gov/coronavirus/ (last

7 accessed July 2, 2020). Moreover, FCC Lompoc’s population has decreased from the

8 total population of 2,680 inmates alleged in the Complaint (¶ 2); FCI Lompoc currently

9 houses 974 inmates, and USP Lompoc, including the camps, currently houses 1,526

10 inmates (a total of 2,500 inmates). See https://www.bop.gov/locations/institutions/lof/

11 https://www.bop.gov/locations/institutions/lom/ (last accessed July 2, 2020).

12

B. Petitioners Have Not Complied with the PLRA Grievance Process

13

Petitioners admit that none of them have completed any step of the PLRA

14 administrative-grievance process. TRO App. at 57:5-59:5.

15 III. LEGAL STANDARDS UNDER FED. R. CIV. P. 12(b)(1) AND 12(b)(6)

16

“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins.

17 Co., 511 U.S. 375, 377, (1994). “A federal court is presumed to lack jurisdiction in a

18 particular case unless the contrary affirmatively appears.” Stock W., Inc. v. Confederated

19 Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). A party may

20 seek dismissal of an action for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) “either

21 on the face of the pleadings or by presenting extrinsic evidence.” Warren v. Fox Family

22 Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Where the party asserts a factual

23 challenge, the court may consider extrinsic evidence demonstrating or refuting

24 the existence of jurisdiction without converting the motion to dismiss into a motion for

25

26 to use PPE. See Dkt. No. 25-1 (“Engleman Decl.” ¶¶ 4, 51-86, 88). Currently, FCC
27 Lompoc is in Phase 7 of the BOP’s COVID-19 Action Plan, which requires that inmates spend the majority of their time in their housing units, have their meals delivered to their
28 housing units, and are only permitted outside in small groups at prearranged times to exercise and access telephones and computers. Id. ¶ 83. 4

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1 summary judgment. Id. The party asserting subject matter jurisdiction has the burden of

2 persuasion for establishing it. Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010).

3

A motion under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the

4 complaint. Dismissal is appropriate where the complaint lacks a cognizable legal theory

5 or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police

6 Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). A complaint may survive a motion to dismiss

7 only if, taking all well-pleaded factual allegations as true, it contains enough facts to

8 “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

9 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim

10 has facial plausibility when the plaintiff pleads factual content that allows the court to

11 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

12 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

13 statements, do not suffice.” Id. Although the scope of review is limited to the contents of

14 the complaint, the Court may consider exhibits submitted with the complaint. Hal Roach

15 Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.9 (9th Cir. 1990).

16 IV. DISCUSSION

17

A. The Court Lacks Jurisdiction Over Petitioners’ Habeas Claims

18

As the Wilson order recognized, Petitioners’ habeas claims are jurisdictionally

19 barred. See Wilson Order at 15-19. The Sixth Circuit carved out a narrow exception in

20 the habeas statute where “[t]o the extent petitioners argue the alleged unconstitutional

21 conditions of their confinement can be remedied only be release, 28 U.S.C. § 2241

22 conferred upon the district court jurisdiction to consider the petition.” Williams, 2020

23 WL 3056217, at *5. Williams, however, held that “because the district court erred in

24 concluding that petitioners have shown a likelihood of success on the merits of their

25 Eighth Amendment claim . . . the district court abused its discretion in granting the

26 preliminary injunction,” and vacated the injunction. Id. at *1.

27

Other courts, including Alvarez v. Larose, 2020 WL 2315807, at *3 (S.D. Cal.

28 May 9, 2020) and Wragg v. Ortiz, 2020 WL 2745247, at *18 (D.N.J. May 27, 2020),

5

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1 found that the inmate-petitioners “were not raising cognizable habeas claim because their

2 claims were ultimately premised on the conditions of confinement.” See Wilson Order at

3 18. Respondents also cited other district court cases in addition to Alvarez and Wragg

4 finding lack of jurisdiction within the COVID-19 prison context. See Dkt. No. 36 at 6,

5 citing Grinis v. Spaulding, 2020 WL 3097360, at *4 (D. Mass. Jun. 11, 2020), Money v.

6 Pritzker, 2020 WL 1820660, at *14 (N.D. Ill. Apr. 10, 2020); Plata v. Newsom, 2020

7 WL 1908776, at *1, 9-11 (N.D. Cal. Apr. 17, 2020); Livas v. Myers, 2020 WL 1939583,

8 at *9 (W.D. La. Apr. 22, 2020). These cases were correctly decided because Petitioners’

9 complaints relating to the conditions of confinement are outside of the scope of a writ for

10 habeas corpus. See Crawford v. Bell, 599 F.2d 890, 891–892 (9th Cir. 1979) (“the writ of

11 habeas corpus is limited to attacks upon the legality or duration of confinement”); Badea

12 v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (“Habeas corpus proceedings are the proper

13 mechanism for a prisoner to challenge the ‘legality or duration’ of confinement,” but not

14 to “challeng[e] ‘conditions of . . . confinement’”) (citations omitted).

15

1. Petitioners Have Failed to Satisfy the Habeas Exhaustion

16

Requirements

17

Petitioners argued in their TRO application that their exhaustion of administrative

18 remedies under § 2241 “should be waived” because there was “no administrative process

19 for CARES Act release to home confinement” and they should be excused from

20 exhausting compassionate release requests because “typically the BOP has 30 days to

21 respond to such applications,” and FCC Lompoc is purportedly overwhelmed with such

22 requests. See TRO App. at 54:23-57:4 (emphasis omitted). The Court agrees with

23 Respondents that it should not give such credence to Petitioners’ arguments because

24 Petitioners admit that they did not even attempt to exhaust their administrative remedies.

25 TRO Application at 54:23-57:4. Therefore, there was no reason for the Respondents to

26 submit evidence on an undisputed fact.

27

Regardless, federal inmates are required to exhaust their administrative remedies

28 prior to bringing a petition for a writ of habeas corpus in federal court. Martinez v.

6

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1 Roberts, 804 F.2d 570, 571 (9th Cir. 1986). As noted, federal courts “require as a

2 prudential matter, that habeas petitioners exhaust available judicial and administrative

3 remedies before seeking relief under § 2241. . . . Prudential limits, like jurisdictional

4 limits and limits on venue, are ordinarily not optional.” Castro–Cortez v. INS, 239 F.3d

5 1037, 1047 (9th Cir. 2001), abrogated on another ground by Fernandez–Vargas v.

6 Gonzales, 548 U.S. 30 (2006). Thus, while “courts have discretion to waive the

7 exhaustion requirement when prudentially required, this discretion is not unfettered.”

8 Laing v. Ashcroft, 370 F.3d 994, 998 (9th Cir. 2004). Because Petitioners did not exhaust

9 their administrative remedies, their habeas claim is properly dismissed.

10

2. Petitioners’ Habeas Claims Run Afoul of the BOP’s Judicially

11

Unreviewable Authority to Make Inmate Placement Decisions

12

Petitioners demand that the BOP “reduce the prison population” by transferring

13 inmates to home confinement or to other facilities is also not subject to judicial review.

14 See Compl. ¶ 4 (emphasis omitted). However, nothing in the CARES Act limits or

15 proscribes the BOP’s sole discretion as to inmate placement decisions, nor does anything

16 in the CARES Act require that the BOP release Petitioners. To the contrary, in passing

17 the CARES Act, Congress preserved the Director’s authority to use it “as the Director

18 deems appropriate.” CARES Act, PL 116-136, 134 Stat 281 § 12003(b) (Mar. 27, 2020).

19 18 U.S.C. §§ 3621(b) and 3625 prohibit a court from reviewing the BOP’s decision of

20 where to place an inmate. Reeb v. Thomas, 636 F.3d 1224, 1226-28 (9th Cir. 2011)

21 (courts lack jurisdiction to review BOP’s placement decisions under 18 U.S.C. §§ 3621-

22 24); United States v. Ceballos, 671 F.3d 852, 855 (9th Cir. 2011) (“[T]he court has no

23 jurisdiction to select the place where the sentence will be served. Authority to determine

24 place of confinement resides in the executive branch of government and is delegated to

25 the Bureau of Prisons.”).

26

The BOP’s decision whether to transfer an inmate to a different facility or to home

27 confinement falls within its unreviewable authority to designate an inmate’s place of

28 imprisonment. 18 U.S.C. § 3621(b) (the BOP “shall designate the place of the prisoner’s

7

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1 imprisonment,” and that this designation is “not reviewable by any court”). The Supreme

2 Court has acknowledged that “[i]t is well settled that the decision where to house

3 inmates is at the core of prison administrators’ expertise.” McKune v. Lile, 536 U.S. 24,

4 39 (2002). Although the statute does not define “place of imprisonment,” a district court

5 presiding over a challenge to COVID-19 conditions at a federal prison recently noted

6 that “[b]oth placement at a Residential Reentry Center (‘RRC’) (more commonly known

7 as a halfway house) and on home confinement are within the BOP’s discretion” under

8 this provision. Livas, 2020 WL 1939583 at *6; cf. United States v. Yates, 2019 WL

9 1779773 at *4 (D. Kan. Apr. 23, 2019) (“[I]t is BOP – not the courts – who decides

10 whether home detention is appropriate.”); Crum v. Blanckensee, 2020 WL 3057799, at

11 *3 (C.D. Cal. Jun. 8, 2020) (Hon. David O. Carter) (dismissing an inmate’s habeas

12 petition requesting transfer to home confinement in light of the COVID-19 pandemic

13 and the conditions at FCI Lompoc given § 3621’s express prohibition against judicial

14 review); Brown v. Sanders, 2011 WL 4899919, at *2 n.3 (C.D. Cal. Sept. 1, 2011) (place

15 of detention “immaterial” under § 3621), aff’d sub. nom Brown v. Ives, 543 F. App’x

16 636 (9th Cir. 2013). Given Section 3621’s express prohibition against judicial review

17 and the clear precedent supporting home confinement as a “place of imprisonment,” the

18 Court should dismiss Petitioners’ habeas claim for this additional reason.

19

B. Petitioners’ Non-Habeas Eighth Amendment Conditions-of-

20

Confinement Claim Are Dismissed

21

1. Petitioners’ Allegations Do Not Support a Finding of Deliberate

22

Indifference

23

a. Standard for Deliberate Indifference

24

In a conditions-of-confinement case, a prison official violates the prohibition

25 against “cruel and unusual punishments,” U.S. Const. Amend. VIII, “only when two

26 requirements”—one objective, the other subjective—“are met.” Farmer, 511 U.S. 825,

27 834, 846 (1994). To satisfy the Eighth Amendment standards, prison officials must

28 ensure that inmates receive adequate food, clothing, shelter, and medical care, and must

8

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1 “take reasonable measures to guarantee the safety of the inmates.” Id. at 832 (citations

2 omitted). Inmates alleging Eighth Amendment violations based on unsafe prison

3 conditions must demonstrate that prison officials were deliberately indifferent to their

4 health or safety by subjecting them to a substantial risk of harm. Id. at 834. Prison

5 officials display a deliberate indifference to an inmate’s well-being when they

6 consciously disregard an excessive risk of harm to the inmate’s health or safety. Id. at

7 838-40. It is “only ‘the unnecessary and wanton infliction of pain’ … [which] constitutes

8 cruel and unusual punishment forbidden by the Eighth Amendment. Whitley v. Albers,

9 475 U.S. 612, 619 (1986) (quoting Ingraham v. Wright, 430 U.S. 651, 670 (1977)).

10

“[I]f a particular condition or restriction … is reasonably related to a legitimate

11 governmental objective, it does not, without more, amount to ‘punishment.’” Bell v.

12 Wolfish, 441 U.S. 520, 539 (1979). “[T]he effective management of a detention facility

13 … is a valid objective that may justify the imposition of conditions” that are

14 discomforting and restrictive, without the indifference that such restrictions are intended

15 as punishment. Id. at 450. Moreover, “it is obduracy and wantonness, not inadvertence or

16 error in good faith, that characterize the conduct prohibited by the Cruel and Unusual

17 Punishments Clause, whether that conduct occurs in connection with establishing

18 conditions of confinement, supplying medical needs, or restoring official control over a

19 tumultuous cellblock.” Wilson v. Seiter, 501 U.S. 294, 299 (1991).

20

“[A] prison official violates the Eighth Amendment only when two requirements

21 are met” – both and objective and subjective component. See Farmer, 511 U.S. at 834.

22 The objective component of an Eighth Amendment claim requires that the deprivation

23 must be “sufficiently serious.” Id. at 833. “[O]nly those deprivations denying ‘the

24 minimal civilized measure of life’s necessities’ … are sufficiently grave to form the

25 basis of an Eighth Amendment violation.” Wilson, 501 U.S. at 298. The inmate must

26 show that he is incarcerated under conditions posing a substantial risk of harm. See

27 Farmer, 511 U.S. at 837.

28

9

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1

The subjective component relates to the defendant’s state of mind, and requires

2 deliberate indifference. See Farmer, 511 U.S. at 834. To satisfy this requirement,

3 Petitioners must show that Respondents “kn[ew] of and disregard[ed] an excessive risk

4 to inmate health or safety.” Id. at 837. To satisfy this standard, the prison official must

5 have a “sufficiently culpable state of mind.” Id. at 833. This test is subjective, meaning

6 “the official must both be aware of facts from which the inference could be drawn that a

7 substantial risk of serious harm exists, and he must also draw the inference.” Id.

8

b. Petitioners Cannot Demonstrate that They Are Subject to an

9

Unreasonable Risk of Harm

10

The “objective prong” of the Eighth Amendment requires a showing that an

11 inmate has been deprived “of the minimal civilized measure of life’s necessities.”

12 Farmer, 511 U.S. at 834. When this deprivation involves a risk of harm, this prong

13 requires the inmate to show that “society considers the risk that the prisoner complains

14 of to be so grave that it violates contemporary standards of decency to expose anyone

15 unwillingly to such a risk. In other words, the prisoner must show that the risk of which

16 he complains is not one that today’s society chooses to tolerate.” Helling v. McKinney,

17 509 U.S. 25, 36 (1993).

18

Petitioners cannot show that the BOP is depriving them of the “minimal civilized

19 measure of life’s necessities” or “violating contemporary standards of decency” in

20 addressing the risk of harm to inmates that COVID-19 presents. “A prison official’s duty

21 under the Eighth Amendment is to ensure reasonable safety.” Farmer, 511 U.S. at 844.

22 The current state of the COVID-19 pandemic exposes everyone—prisoner and non-

23 prisoner alike—to the risk of falling ill.

24

The Complaint acknowledges in several places that FCI Lompoc has tested every

25 single inmate, and that FCC Lompoc has provided medical care and medication to

26 prisoners, has taken steps to increase the ability for inmates to practice social distancing,

27 has provided inmates with masks and cleaning supplies, has distributed masks to staff,

28 has taken cohorting and quarantine measures, and has considered inmates for home

10

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1 confinement under the CARES Act and has in fact placed inmates on home confinement.

2 See § II.A. supra. That these measures have not been done to Petitioners’ satisfaction or

3 that they have issues with how those measures were undertaken is insufficient to show

4 deliberate indifference as the Fifth Circuit held in Valentine v. Collier, 956 F.3d 797,

5 801-02 (5th Cir. 2020) (compliance with CDC recommendations, including “access to

6 soap, tissues, gloves, masks, regular cleaning, signage and education, quarantine of new

7 prisoners, and social distancing during transport” satisfies the Eighth Amendment). See

8 also Chunn v. Edge, 2020 WL 3055669, at *24 (E.D.N.Y. Jun. 9, 2020) (petitioners

9 could not meet the objective component of the Eighth Amendment test “given the

10 measures that prison officials have instituted to address COVID-19 and the best

11 available evidence regarding those measures’ results”); Grinis v. Spaulding, 2020 WL

12 2300313, at *3 (May 8, 2020 D. Mass.) (“These affirmative steps may or may not be the

13 best possible response to the threat of COVID-19 within the institution, but they

14 undermine an argument that the respondents have been actionably deliberately

15 indifferent to the health risks of inmates.”).

16

c. Petitioners Cannot Satisfy the Subjective Test for Deliberate

17

Indifference

18

Petitioners also fail to satisfy the subjective prong of their Eighth Amendment

19 claim, which requires them to show that Respondents “kn[ew] of and disregard[ed] an

20 excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. This test is

21 subjective, meaning “the official must both be aware of facts from which the inference

22 could be drawn that a substantial risk of serious harm exists, and he must also draw the

23 inference.” Id. The Eighth Amendment does not require perfect results. See id. at 844

24 (“prison officials who actually knew of a substantial risk to inmate health or safety may

25 be found free from liability if they responded reasonably to the risk, even if the harm

26 ultimately was not averted”).

27

To establish an entitlement to injunctive relief, Petitioners must show that BOP

28 officials currently are acting with deliberate indifference. Where a prisoner “seeks

11

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1 injunctive relief to prevent a substantial risk of serious injury from ripening into actual

2 harm, the subjective factor . . . should be determined in light of the prison authorities’

3 current attitudes and conduct[.]” Id. at 845 (internal quotation marks omitted). Thus,

4 Petitioners must show that today, Respondents are recklessly disregarding an excessive

5 risk to Petitioners’ safety, and that they will continue to do so “into the future.” Id. The

6 Fifth, Sixth and Eleventh Circuits found no Eighth Amendment violations in

7 substantially similar circumstances as to those here involving COVID-19 at correctional

8 facilities.

9

In Swain v. Junior, –F.3d–, 2020 WL 3167628, at *6 (11th Cir. Jun. 15, 2020), the

10 district court issued an injunction finding that prison officials were deliberately

11 indifferent because it was not possible for inmates to be at least six feet apart at all times

12 and because the rate of COVID-19 infections had increased. The Eleventh Circuit

13 overturned the district court, noting that, with respect to the infection rate at the facility,

14 resulting harm cannot alone establish a culpable state of mind. Id. at *7. It found no

15 Eighth Amendment liability if prison officials respond reasonably to a risk to inmate

16 health, “even if the harm ultimately was not averted.” Id. (quoting Farmer, 511 U.S. at

17 844) (emphasis in original). The Eleventh Circuit found that where prison officials “took

18 numerous other measures—besides social distancing—to mitigate the spread of the

19 virus,” including requiring the use of face masks, screening of staff into the facility, daily

20 temperature screening, suspending outside visitation, and providing disinfecting and

21 hygiene supplies to all inmates, prison officials could not be found liable because they

22 could not meet the subjective component under the Eighth Amendment. Id. at *8

23 (emphasis in original).

24

In Williams, the Sixth Circuit also vacated the district court’s injunction and held

25 that petitioners could not satisfy the subjective prong of an Eighth Amendment violation

26 where BOP had responded reasonably to the risk of COVID-19 at FCI Elkton by

27 implementing screening, testing, isolation, and hygiene measures, limiting inmate

28 movement, and providing inmates and staff with masks and PPE. 2020 WL 3056217, at

12

Case 2:20-cv-04450-CBM-PVC Document 36-1 Filed 07/02/20 Page 14 of 15 Page ID #:1538

1 *7-8. Williams noted that the Fifth and Eleventh Circuits had already found similar

2 measures to constitute a reasonable response to COVID-19 such that there was no

3 tenable Eighth Amendment claim. Id. at *9 (citing Swain (per curiam); Valentine (per

4 curiam); Marlowe v. LeBlanc, 2020 WL 2043425 (5th Cir. Apr. 27, 2020) (per curiam)).

5

Recently, the Eastern District of New York also found that petitioners could not

6 meet the subjective component of the Eighth Amendment test because the BOP has

7 “imposed dozens of measures, such as (i) enhancing intake screening procedures for all

8 inmates and staff, (ii) providing soap and other cleaning products to inmates at no cost,

9 (iii) increasing cleaning of common areas and shared items, (iv) isolating symptomatic

10 inmates, (v) broadly distributing and using PPE to prevent transmission of the virus, and

11 (vi) modifying operations throughout the facility to facilitate social distancing to the

12 greatest extent possible and abate the risk of spread . . . belie any suggestion that prison

13 officials ‘have turned the kind of blind eye and deaf ear to a known problem that would

14 indicate’ deliberate indifference.” Chunn, 2020 WL 3055669, at *26 (quoting Money,

15 2020 WL 1820660, at *18; Swain, 958 F.3d at 1090)).

16

Similarly, Petitioners here cannot satisfy the subjective requirement of an Eighth

17 Amendment conditions-of-confinement claim. BOP officials have not acted with

18 deliberate indifference to the risk that COVID-19 poses to inmate populations; rather,

19 they have taken aggressive and appropriate measures to abate that risk at FCC Lompoc.

20 In the Complaint, Petitioners acknowledge that mass testing has been done, that inmates

21 are provided with masks and disinfectant, and that FCC Lompoc has taken steps to

22 cohort inmates and to provide them with more space. Although Petitioners may have

23 concerns about the implementation about these measures (e.g., they complain that

24 isolation of infected people occurred for a time in the Special Housing Unit and staff

25 were not issued masks until April 2, 2020), it does not rise to the level of deliberate

26 indifference. See Wragg, 2020 WL 2745247, at *21 (no Eighth Amendment violation

27 because there is “no evidence of Respondents’ liable state of mind” and noting “physical

28 distancing is not possible in a prison setting, as Petitioners urge, does not an Eighth

13

Case 2:20-cv-04450-CBM-PVC Document 36-1 Filed 07/02/20 Page 15 of 15 Page ID #:1539

1 Amendment claim make and, as such, Petitioners are not likely to succeed on the

2 merits”); Nellson v. Barnhart, 2020 WL 1890670, at *6 (D. Col. Apr. 6, 2020)

3 (“Assuming that the objective component [of deliberate indifference] is met, and that

4 prison officials know of the risk of COVID-19, plaintiff has not demonstrated that

5 defendants have disregarded that risk.”); Money, 2020 WL 1820660, at *18 (prisoner

6 petitioners have “no chance of success” as to deliberate indifference because of the

7 measures taken by the Illinois Department of Corrections).

8

As such, Petitioners cannot succeed on their Eighth Amendment claim given the

9 actions taken by the BOP at FCC Lompoc. See Farmer, 511 U.S. at 845 (“[P]rison

10 officials who act reasonably cannot be found liable under the Cruel and Unusual

11 Punishments Clause.”). Here, Respondents acted with a high degree of care, and

12 certainly were not acting with deliberate indifference that would transform conditions at

13 FCC Lompoc into an Eighth Amendment “punishment.” See Wilson v. Seiter, 501 U.S.

14 at 298, 300.

15 V. CONCLUSION

16

For these reasons, Respondents’ motion to dismiss is GRANTED.

17

18 IT IS SO ORDERED.

19

20 Dated:______________, 2020

21

22

HONORABLE MICHAEL F. FITZGERALD

23

UNITED STATES DISTRICT JUDGE

24

25

26

27

28

14

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 Torres et al.,

12

Plaintiff-Petitioners,

v. 13

Milusnic et al., 14

Defendant-Respondents. 15

16

Case No.: CV 20-4450-CBM-PVC(x)
ORDER RE: PLAINTIFFPETITIONERS’ MOTION FOR PRELIMINARY INJUNCTION, AND EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

17

18

The matters before the Court are: (1) Plaintiff-Petitioners’ Ex Parte

19 Application for Temporary Restraining Order and Order to Show Cause re:

20 Preliminary Injunction (Dkt. No. 18 (“TRO Application”)); and (2) Plaintiff-

21 Petitioners’ Ex Parte Application for Provisional Class Certification (Dkt. No. 22

22 (“Application for Class Certification”)). The matters are fully briefed.1

23

After the July 7, 2020 hearing, the parties each filed a notice of non-

24 opposition stating they did not object to converting the TRO Application to an

25 expedited motion for preliminary injunction. (Dkt. Nos. 41, 42.) Accordingly, the

26 TRO Application was converted to an expedited motion for preliminary

27 1 The parties stipulated to a briefing schedule re the TRO Application and
28 Application for Class Certification.

1

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 2 of 50 Page ID #:1689

1 injunction.2

2

I. BACKGROUND

3

Petitioners Yonnedil Carror Torres, Vincent Reed, Felix Samuel Garcia,

4 Andre Brown, and Shawn Fears are federal inmates incarcerated at FCI Lompoc

5 and USP Lompoc (collectively, “Lompoc”) located in Santa Barbara, California.

6 This action brought on behalf of “all current and future people in post-conviction

7 custody at Lompoc” (Compl. ¶ 96), challenges the Director of the Bureau of

8 Prisons (“BOP”) and Warden of Lompoc’s response during the COVID-19

9 pandemic. The Complaint asserts two causes of action: (1) Unconstitutional

10 Conditions of Confinement in Violation of the Eighth Amendment to the U.S.

11 Constitution pursuant to 28 U.S.C. §§ 2241, 2243; (2) and Unconstitutional

12 Conditions of Confinement in Violation of the Eighth Amendment to the U.S.

13 Constitution pursuant to U.S. Const, Amend. VIII; 28 U.S.C. § 1331; 5 U.S.C. §

14 702, “Injunctive Relief Only.”

15

Petitioners apply for a preliminary injunction requesting the Court to

16 require (1) Respondents to expedite review and determination of eligibility of

17 Lompoc inmates for home confinement and compassionate release, and (2)

18 improved conditions for inmates remaining at Lompoc in light of COVID-19.3

19

II. STATEMENT OF THE LAW

20 A. Preliminary Injunction

21

The standard for issuing a preliminary injunction requires the parties

22 seeking relief to show (1) they are likely to succeed on the merits, (2) they are

23 likely to suffer irreparable harm in the absence of injunctive relief, (3) the balance

24 of equities is in their favor, and (4) injunctive relief is in the public interest. See

25

26

2 The Court has reviewed and considered the supplemental filings by the parties and evidentiary objections thereto. (Dkt. Nos. 39, 40.)

27 3 While Petitioners’ proposed order includes a list of 26 items sought, the essential relief requested by Petitioners re: the motion for preliminary injunction is
28 summarized above.

2

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 3 of 50 Page ID #:1690

1 Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). Under this standard,

2 “serious questions going to the merits and a balance of hardships that tips sharply

3 towards the plaintiff can support issuance of a preliminary injunction, so long as

4 the plaintiff also shows that there is a likelihood of irreparable injury and that the

5 injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d

6 1127, 1135 (9th Cir. 2011) (internal quotations omitted).

7 B. Class Certification

8

Federal Rule of Civil Procedure 23(a) requires that a proposed class satisfy

9 the following four requirements for class certification: (1) numerosity; (2)

10 commonality; (3) typicality; and (4) adequacy of representation. Fed. R. Civ. P.

11 23(a). “A class action may be maintained if Rule 23(a) is satisfied and if . . . the

12 party opposing the class has acted or refused to act on grounds that apply

13 generally to the class, so that final injunctive relief or corresponding declaratory

14 relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).

15

III. DISCUSSION

16 A. COVID-19

17

COVID-19 is a novel, highly contagious, and deadly virus. On March 4,

18 2020, California declared a state of emergency in response to COVID-19. On

19 March 11, 2020, COVID-19 was declared a global pandemic by the World Health

20 Organization. On March 13, 2020, the President of the United States declared a

21 national emergency in response to COVID-19. Millions of confirmed cases of

22 COVID-19 and hundreds of thousands of related deaths have been reported

23 worldwide. The United States Center for Disease and Control Prevention

24 (“CDC”) reports that as of July 7, 2020, there have been 2,932,596 confirmed

25 cases of COVID-19 and 130,133 related deaths in the United States, and 271,684

26 confirmed cases of COVID-19 and 6,337 related deaths have occurred in

27 California.4

28 4 CDC, Cases and Deaths in the U.S., available at

3

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1

According to the CDC, COVID-19 spreads mainly among people who are

2 in close contact (i.e., within approximately 6 feet) and therefore limiting close

3 contact with others is the best way to reduce the spread of COVID-19.5 COVID-

4 19 spreads when an infected person coughs, sneezes, or talks, and droplets from

5 their mouth or nose are launched into the air and land in the mouths or noses of

6 people nearby, or are inhaled into the lungs. A person may contract COVID-19 by

7 touching a surface or object that has the virus on it and then touching their own

8 mouth, nose, or eyes.6 COVID-19 spreads very easily and sustainably between

9 people and is spreading more efficiently than influenza.7 Anyone can contract

10 COVID-19 and spread it to others.8 Recent studies indicate people who are

11 infected with the novel coronavirus but do not have symptoms likely also play a

12 role in the spread of COVID-19.9

13

The more closely a person interacts with others and the longer that

14 interaction, the higher the risk of COVID-19 spread.10 Therefore, the CDC

15 advises that maintaining social distance of approximately 6 feet “is very important

16 in preventing the spread of COVID-19,”11 and “is one of the best tools we have to

17

18

19

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/us-cases-deaths.html (last accessed July 7, 2020); CDC, Cases & Deaths by Jurisdiction, available at

20

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last accessed July 7, 2020).

21 5 CDC, Prevent Getting Sick, Social Distancing, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-
22 distancing.html (hereinafter, “CDC Social Distancing Guidelines”) (last accessed July 7, 2020).
23 6 Id.

24 7 CDC, Prevent Getting Sick, How COVID-19 Spreads, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-
25 spreads.html (last accessed July 7, 2020).

26 8 Id. 9 Id.
27 10 Id.

28 11 Id.

4

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 5 of 50 Page ID #:1692

1 avoid being exposed to this virus and slowing its spread.”12 Per the CDC,

2 “[s]ocial distancing is especially important for people who are at higher risk of

3 severe illness from COVID-19.”13 Among adults, the risk of severe illness or

4 death from COVID-19 increases with age.14 Additionally, individuals of any age

5 who have serious underlying medical conditions, including individuals with

6 chronic obstructive pulmonary disease, serious heart conditions such as heart

7 failure, coronary artery disease, or cardiomyopathies, Type 2 diabetes, chronic

8 kidney disease, sickle cell disease, immunocompromised state from a solid organ

9 transplant, and obesity (body mass index of 30 or higher) are at increased risk for

10 severe illness or death from COVID-19.15 Individuals at any age might be at

11 increased risk of severe illness from COVID-19 if they have the following

12 conditions: asthma, cerebrovascular diseases, cystic fibrosis, hypertension or high

13 blood pressure, immunocompromised state from blood or bone marrow transplant,

14 immune deficiencies, HIV, use of corticosteroids, or use of other immune

15 weakening medicines, neurologic conditions such as dementia, liver diseases,

16 pregnancy, pulmonary fibrosis, thalassemia, Type 1 diabetes, or individuals who

17 are smokers.16

18 B. Lompoc

19

FCI Lompoc is a low security prison. (Compl. ¶ 2; Engleman Decl. ¶ 5.)

20 USP Lompoc is a medium security prison, with a separate minimum-security

21 satellite camp. (Compl. ¶ 2; Engleman Decl. ¶ 5.) USP Lompoc has units

22

23 12 CDC Social Distancing Guidelines.

24 13 Id.

14 CDC, Who is at Increased Risk for Severe Illness? Older Adults, available at

25 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-

adults.html (last accessed July 7, 2020).

26 15 CDC, Who is at Increased Risk for Severe Illness? People with Certain Medical

27

Conditions, available at https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html (last accessed July 7, 2020).

28 16 Id.

5

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 6 of 50 Page ID #:1693

1 physically divided into 2-man cells with walls and cell doors, some units have

2 grills for doors, and each cell has a sink/water fountain and toilet. (Engleman

3 Decl. ¶¶ 5-6.) FCI Lompoc and USP’s satellite camp are structured as dormitories

4 with community restrooms which include sinks, toilets and showers. (Cross Decl.

5 ¶ 6.) Some areas of USP’s satellite camp and FCI Lompoc have open

6 configurations while other areas have 8-10 person rooms. (Id.)

7

As of July 7, 2020, 859 inmates at FCI Lompoc and 170 inmates at USP

8 Lompoc have tested positive for COVID-19 or have been deemed “recovered.”17

9 Four inmates at Lompoc have died from COVID-19.18 The designated capacity

10 for Lompoc is 2,058,19 but as of June 3, 2020, there were 2,599 inmates at

11 Lompoc. (Engleman Decl. ¶ 7.)20

12 C. Petitioners

13

(1) Petitioner Carror-Torres

14

Petitioner Carror-Torres is 24 years old and resides at USP Lompoc.

15 (Carror Decl. ¶ 4.) He was convicted for carjacking with serious bodily injury

16 (sexual assault) and aiding and abetting a violent crime by carrying a firearm,

17 sentenced to 20 years imprisonment, and projected to be released on August 7,

18 2023. (Engleman Decl. ¶¶ 8, 9, Ex. A.) Carror-Torres has suffered from chronic

19

20 17 See Federal Bureau of Prisons, COVID-19 Coronavirus,

21 https://www.bop.gov/coronavirus/ (last accessed July 7, 2020).

18 Id.

22 19 See Federal Bureau of Prisons, Prison Rape Elimination Act (PREA) Audit

23

Report at 2, 6, available at https://www.bop.gov/locations/institutions/lof/prea_lof.pdf (last accessed July 7,

24 2020).

20 At the July 7, 2020 hearing, Respondents represented there are 1,759 “empty

25 beds” at Lompoc but acknowledged new inmates are being placed at Lompoc.

Moreover, as of July 9, 2020, there are 1,521 inmates at USP Lompoc (see Federal

26 Bureau of Prisons, USP Lompoc, available at

https://www.bop.gov/locations/institutions/lom/ (last accessed July 9, 2020)), and

27 964 inmates at FCI Lompoc (see Federal Bureau of Prisons, FCI Lompoc,

available at https://www.bop.gov/locations/institutions/lof/ (last accessed July 9,

28 2020)). Therefore, as of July 9, 2020, there are 2,485 inmates at Lompoc.

6

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 7 of 50 Page ID #:1694

1 asthma since he was a child. (Kiara Carror (hereinafter, “Carror”) Decl. ¶ 2.)21

2

Carror-Torres’s sister submitted a request for compassionate release on

3 behalf of her brother to the Warden of Lompoc on May 11, 2020, but as of May

4 14, 2020 had not received a response. (Id. ¶ 11.)22 Carror-Torres’s sister declares

5 he would stay with her at her home in Kissimmee, Florida, if he is transferred to

6 home confinement. (Id. ¶ 12.) Respondents contend Carror-Torres was not

7 considered for priority placement on home confinement because of his underlying

8 violent crime and sex offense conviction.

9

(2) Petitioner Brown

10

Petitioner Brown is 55 years old and incarcerated at USP Lompoc. (Wefald

11 Decl. ¶ 1.) Brown has had a history of asthma since childhood, is learning

12 disabled and illiterate, has prostate cancer and will need chemotherapy or surgery

13 in the future. (Id. ¶¶ 1, 6; Cross Decl. ¶ 12.) Brown was convicted of conspiracy

14 to manufacture, distribute, and possess with intent to distribute phencyclidine

15 (PCP), and illegally possess a listed chemical and distribution and possession with

16 21 Carror-Torres’s sister Kiara Carror submitted a declaration in support of

17

Petitioners’ TRO Application. At the hearing Respondents noted Petitioners did not file declarations signed by the named Petitioners, and instead submitted

18

declarations from Petitioners’ counsel and family members which include hearsay evidence. Respondents also object to the declaration of Jimmy Threatt filed by

19

Petitioners after the July 7, 2020 hearing, on the ground it “consists of statements with no foundation and hearsay inadmissible under Federal Rules of Evidence 602

20

and 802.” (See Dkt. No. 40.) The Court, however, may consider inadmissible evidence, including hearsay evidence, in determining whether to issue a temporary

21

restraining order or preliminary injunction. See Houdini Inc. v. Goody Baskets LLC, 166 F. App’x 946, 947 (9th Cir. 2006) (“[T]he district court did not abuse its

22

discretion in considering hearsay and biased evidence of actual confusion because the rules of evidence do not strictly apply to preliminary injunction

23

proceedings.”); Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) (In deciding whether to issue a temporary restraining order, the district court “may

24

give even inadmissible evidence some weight, when to do so serves the purpose of preventing irreparable harm before trial.”). Accordingly, Respondents’ objections

25 re: hearsay and lack of foundation are overruled.

22 While no evidence is before the Court regarding a determination by the BOP as

26 to Carror-Torres’ request, Respondents represented at the July 7, 2020 hearing that

the BOP denied Carror-Torres’s request for compassionate release on May 26,

27 2020. No evidence was provided to the Court as to whether Carror-Torres’

medical condition was considered by the BOP prior to denying the request or

28 whether Carror-Torres was notified of the denial of the request.

7

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 8 of 50 Page ID #:1695

1 intent to distribute PCP,23 sentenced to 12.5 years imprisonment, and has a

2 projected release date of October 6, 2024. (Engleman Decl. ¶¶ 29, 31, Ex. J;

3 Wefald Decl. ¶ 3.) According to his attorney, Brown had “minor prior convictions

4 but the last [prior conviction] was 20 years ago. (Wefald Decl. ¶ 4.)

5

On May 13, 2020, Brown’s attorney sent a request to the Lompoc Warden

6 requesting compassionate release and/or home confinement for Brown. (Id. ¶ 7.)

7 There is no evidence before the Court that the warden has notified Brown

8 regarding a determination of his request.24

9

Brown’s daughter has stated Brown would be able to live with her if he is

10 released or placed on home confinement. (Id. ¶ 8.) The Associate Warden of

11 Lompoc, however, declares Brown does not qualify for priority placement on

12 home confinement under the Attorney General’s memoranda because of his low

13 risk of recidivism PATTERN score. (Engleman Decl. ¶¶ 35, 49.a.) The Associate

14 Warden of Lompoc further declares a decision was made to transfer Brown to a

15 different facility which was scheduled for March 5, 2020, but the transfer did not

16 take place because the BOP stopped all routine movement in March. (Engleman

17 Decl. ¶ 30.) The Associate Warden declares it is anticipated Brown will be

18 transferred “once BOP resumes inmate movement.” (Id.)25

19

20 23 Brown’s conviction is on appeal before the Ninth Circuit, has been fully briefed, and may be argued some time between September-November 2020. (Wefald
21 Decl. ¶ 2.)

22

24 At the July 7, 2020 hearing, Respondents represented Brown’s request was denied on June 23, 2020. There is no evidence before the Court that any risk

23

factors for severe illness or death from COVID-19 were considered prior to the denial of Brown’s request. Respondents also represented at the hearing Brown is

24

being considered by BOP staff as an “exception” for home confinement, but were unable to provide information regarding the type of “exception” for which Brown

25 is being considered.

25 At the July 7, 2020 hearing, Respondents represented Brown has not been

26 transferred and that it was unknown when the BOP would resume inmate

movement. Petitioners’ counsel declares that as of July 7, 2020, the BOP’s inmate

27 locator website, https://www.bop.gov/inmateloc/, “indicated that . . . Andre Brown

(Register No. 54460-097) . . . remain[s] in BOP custody at USP Lompoc.”

28 (Threatt Decl. ¶ 5.)

8

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 9 of 50 Page ID #:1696

1

(3) Petitioner Reed

2

Petitioner Reed is 53 years old and currently incarcerated at USP Lompoc.

3 (Perales Decl. ¶ 2.) Reed has hypertension and mental health issues. (Id.) Reed

4 may be the only viable candidate to donate a kidney to 30-year-old son Vincent

5 who is suffering from kidney failure, is fully blind, and has diabetes. (Id. ¶ 3.)

6 Vincent’s grandmother is his only caregiver and cannot continue to care for him

7 alone. (Id.) Reed was convicted of armed bank robbery, armed carjacking, and

8 destroying property, sentenced to 25 years imprisonment, and projected to be

9 released August 5, 2025. (Engleman Decl. ¶¶ 14, 16.)

10

Reed’s attorney declares he would return to Washington D.C. to self-

11 quarantine at his brother’s resident if transferred to home confinement. (Perales

12 Decl. ¶ 13.) The Associate Warden of Lompoc declares Reed is “unsuitable for

13 CARES Act home confinement” of his violent crime conviction. (Engleman Decl.

14 ¶ 49.a.)26

15

(4) Petitioner Fears

16

Petitioner Fears is 50 years old and is currently incarcerated at USP

17 Lompoc. (Zayed Fears Decl. ¶ 2.)27 Fears was convicted of conspiracy to possess

18 with intent to distribute 15 kilograms of cocaine and, after violating the terms of

19 his supervised release, was sentenced to 32 months, and has a projected release

20 date of August 19, 2021. (Engleman Decl. ¶¶ 36, 38, Ex. M.)

21

Fears’ daughter declares if Fears is transferred to home confinement, he

22 would self-quarantine in Villa Rica, Georgia. (Zayed Fears Decl. ¶ 8.)

23

24

26 At the July 7, 2020 hearing, Respondents represented Reed’s request for compassionate release was denied by the BOP, and his motion for compassionate

25

release filed with the sentencing court was denied on June 11, 2020. After the hearing, Respondents filed a copy of a one-page order dated June 11, 2020 issued

26

by the United States District Court for the District of Columbia denying Reed’s Emergency Motion to Reduce Sentence Pursuant to the Compassionate Release

27

Statute 18 U.S.C. § 3582(c)(1)(A)(i) in United States v. Vincent E. Reed, No. 1:03cr-00560-RBW (D.D.C.).

28 27 No evidence was submitted regarding Fears’ medical history.

9

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 10 of 50 Page ID #:1697

1 Respondents state Fears does not qualify for priority placement on home

2 confinement under the Attorney General’s memoranda because of his risk of

3 recidivism, but the BOP has decided to transfer Fears to a different facility which

4 was supposed to occur on March 3, 2020 but “did not take place because all

5 movement stopped in the Agency.” (Engleman Decl. ¶¶ 37, 50.) The Lompoc

6 Associate Warden declares it is “anticipated” that Fears’ transfer “will occur once

7 BOP resumes inmate movement.” (Id. ¶ 37.)28

8

(5) Petitioner Garcia29

9

Petitioner Garcia is 36 years old, has been incarcerated since September

10 2015. (Zavala-Garcia Decl. ¶ 2.) Garcia was convicted of possession of

11 methamphetamine with intent to distribute, was sentenced to seven years

12 imprisonment, has a projected release date of November 6, 2020, and a release

13 date to a halfway house/residential reentry center currently scheduled for July 28,

14 2020. (See Dkt. Nos. 39, 42.)30 Garcia was incarcerated at FCI Lompoc for most

15 of the last three years but was moved to USP Lompoc on May 7, 2020. (Zavala-

16 Garcia Decl. ¶ 2.)

17

Garcia’s attorney submitted a request for home confinement to the Warden

18

19 28 At the July 7, 2020 hearing, Respondents represented Fears had not been

transferred and that it was unknown when the BOP would resume inmate

20 movement. Petitioners’ counsel declares that as of July 7, 2020, the BOP’s inmate

locator website, https://www.bop.gov/inmateloc/, “indicated that . . . Shawn Fears

21 (Register No. 34183-060) remain[s] in BOP custody at USP Lompoc.” (Threatt

Decl. ¶ 5.)

22 29 After the hearing, Petitioners filed a handwritten letter from Petitioner Garcia

23

dated June 21, 2020. (Dkt. No. 39, Ex. A.) The letter appears to be written in Spanish and Petitioners filed an English translation of the letter. (Id.) However,

24

the translation was not certified and therefore the Court has no manner of determining the accuracy of the translation. Accordingly, the Court does not

25 consider Garcia’s June 21, 2020 letter or the non-certified translation thereof.

30 The evidence submitted by the parties prior to the July 7, 2020 hearing indicated 26 Garcia’s release date to a “halfway house” or residential reentry center (“RCC”)

was scheduled for July 7 or July 9, 2020. (See Zavala-Garcia Decl. ¶ 2; Engleman 27 Decl. ¶¶ 21, 23, Ex. G.). The supplemental filings by the parties demonstrate

Garcia’s release date to the halfway house/RCC is now scheduled for July 28, 28 2020. (Dkt. Nos. 39, 42.)

10

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 11 of 50 Page ID #:1698

1 at USP Lompoc on May 11, 2020, but has not received a response. (Zavala-

2 Garcia Decl. ¶ 8.)31 If Garcia is transferred to home confinement, his mother

3 states he would self-quarantine at her home in Imperial Beach, California with his

4 parents. (Id. ¶ 9.) Lompoc’s Associate Warden declares Garcia is not “suitable

5 for home confinement at this time” because he “must participate in and complete

6 the transitional component of the drug treatment program at the RRC,” and “[i]f

7 he fails to do so, his projected release date will be modified to reflect he did not

8 earn a reduction in sentence and he will be required to serve a longer sentence.”

9 (Engleman Decl. ¶ 49.b.) Respondents also contend Garcia “does not qualify for

10 priority placement on home confinement under the Attorney General’s

11 memoranda because he has a low risk of recidivism PATTERN score.” (Id. ¶

12 28.)32

13 D. Habeas Claim

14

Petitioners’ first cause of action is a habeas claim pursuant to 28 U.S.C. §

15 2241 for alleged violation of the Eighth Amendment. As a preliminary issue, the

16 parties disagree as to whether Petitioners properly bring a habeas claim.

17

28 U.S.C. § 2241 provides a writ of habeas corpus shall not extend to a

18 prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or

19 treaties of the United States.” Habeas claims pursuant to Section 2241 are the

20 proper procedural vehicle for prisoners to challenge the fact or duration of

21 confinement. See Preiser v. Rodriguez, 411 U.S. 475, 489 (1973) (sole federal

22 remedy for a prisoner challenging the “fact or duration” of imprisonment and

23 seeking immediate release or a speedier release from imprisonment is a writ of

24 habeas corpus); Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) (“the writ of

25 habeas corpus is limited to attacks upon the legality or duration of confinement”).

26

27

31 At the July 7, 2020 hearing, Respondents represented Garcia’s request was still being reviewed by the BOP as of July 6, 2020.

28 32 No evidence was submitted regarding Garcia’s medical history.

11

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 12 of 50 Page ID #:1699

1 “A civil rights action . . . is the proper method of challenging ‘conditions of

2 confinement.’” Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser,

3 411 U.S. at 498-99).33

4

Courts are split as to whether claims by prisoners in light of the COVID-19

5 pandemic are challenges to the fact or duration of confinement properly brought as

6 a habeas claim under Section 2241, or challenges to the conditions of confinement

7 which fall outside the core of habeas corpus. Compare Wilson v. Ponce, 2020 WL

8 3053375, at *11 (C.D. Cal. June 8, 2020) (writ of habeas corpus does not

9 encompass Eighth Amendment claim for expedited review for enlargement of

10 custody of prisoners at FCI Terminal Island based on conditions during COVID-

11 19 pandemic); Alvarez v. Larose, 2020 WL 2315807, at *3 (S.D. Cal. May 9,

12 2020) (habeas petition brought by prisoners at Otay Mesa Detention Center was

13 not properly brought pursuant to 28 U.S.C. § 2241 because the petitioners’ claims

14 “[were] based solely on the current conditions inside OMDC given the COVID-19

15 pandemic”); Wragg v. Ortiz, 2020 WL 2745247, at *18 (D.N.J. May 27, 2020)

16 (habeas petition brought by prisoners in FCI Fort Dix were not properly brought

17 as a habeas claim because the petitioners were not contesting “the validity of their

18 convictions or sentences” or the “duration of their confinement,” but instead

19 seeking “injunctive relief based on unconstitutional conditions of confinement, a

20 type of challenge that neither the Supreme Court nor the Third Circuit has yet

21 recognized as a cognizable habeas claim.”), with Wilson v. Williams, 2020 WL

22 3056217, at *5 (6th Cir. June 9, 2020) (petitioners’ claims “are properly brought

23

24 33 See also Nelson v. Campbell, 541 U.S. 637, 643 (2004) (“[C]onstitutional claims that merely challenge the conditions of a prisoner’s confinement, whether
25 the inmate seeks monetary or injunctive relief, fall outside of that core [of habeas corpus] and may be brought pursuant to § 1983 in the first instance.”); Muhammad
26 v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas
27 corpus . . .; requests for relief turning on circumstances of confinement may be presented in a § 1983 action.”); Nettles, 830 F.3d at 927 (“[R]equests for relief
28 turning on circumstances of confinement may be presented in a § 1983 action.”).

12

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 13 of 50 Page ID #:1700

1 under § 2241 because they challenge the fact or extent of their confinement by

2 seeking release from custody” and claiming “no set of conditions would be

3 constitutionally sufficient”); Martinez-Brooks v. Easter, 2020 WL 2405350, at *16

4 (D. Conn. May 12, 2020) (FCI Danbury prisoners properly brought habeas claim

5 where they contended “the fact of their confinement in prison itself amounts to an

6 Eighth Amendment violation under . . . circumstances” arising during the

7 COVID-19 pandemic and claimed “nothing short of an order ending their

8 confinement at FCI Danbury will alleviate that violation”); Cameron v. Bouchard,

9 2020 WL 2569868, at *27 (E.D. Mich. May 21, 2020) (habeas petition pursuant to

10 2241 was “proper avenue” for plaintiffs’ claims which “seek release for

11 medically-vulnerable inmates not because the conditions of their confinement fail

12 to prevent irreparable constitutional injury, but based on the fact of their

13 confinement” in light of the COVID-19 pandemic); Malam v. Adducci, 2020 WL

14 1672662, at *3 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (holding

15 petitioner asserted a cognizable habeas claim regarding confinement in Calhoun

16 County Correctional Facility amidst COVID-19 pandemic where she “has not

17 conceded the existence of acceptable alternative conditions of her confinement”

18 and “her Fifth Amendment claim, if successful, would render her continued

19 detention invalid”).

20

Here, Petitioners state they are not asking the Court to release inmates or

21 transfer them to home confinement. Rather, Petitioners request that “the Court

22 grant them and all similarly situated individuals habeas relief by ordering ‘a highly

23 expedited process—for completion within no more than 48 hours—for [BOP] to

24 use procedures available under the law to review members of the Class for

25 enlargement of custody . . . in order to reduce the density of the prison population

26 to a number that allows for the implementation of appropriate measures to prevent

27 the spread of COVID-19.’”

28

Because Petitioners’ habeas claim would not necessarily lead to immediate

13

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 14 of 50 Page ID #:1701

1 or earlier release, Ninth Circuit and Supreme Court authority suggest their claim

2 does not fall within “the core of habeas corpus.” See Nettles v. Grounds, 830 F.3d

3 922, 935 (9th Cir. 2016) (If a petitioner’s claim “would not necessarily lead to his

4 immediate or earlier release from confinement,” that claim “does not fall within

5 ‘the core of habeas corpus.’”) (citing Skinner v. Switzer, 562 U.S. 521, 535 n.13

6 (2012)); Wilkinson v. Dotson, 544 U.S. 74, 74-75 (2005) (finding prisoner’s

7 claims did not “lie[] at the core of habeas corpus” because success on his claims

8 “means at most a new parole hearing at which parole authorities may, in their

9 discretion, decline to shorten his prison term” and therefore his claims would not

10 “necessarily spell speedier release,” and noting “Section 1983 remains available

11 for procedural challenges where success would not necessarily spell immediate or

12 speedier release for the prisoner”).

13

However, here Petitioners also argue they “are challenging through their

14 Section 2241 petition the fact and duration of their confinement on the basis that

15 no set of conditions of confinement under the present circumstances could be

16 constitutional.” Because Petitioners contend there are no set of conditions of

17 confinement that could be constitutional, the Court finds Petitioners challenge the

18 fact of their confinement. See 28 U.S.C. § 2241 (a writ of habeas corpus extends

19 to a “in custody in violation of the Constitution or laws or treaties of the United

20 States”); Wilson v. Williams, 2020 WL 3056217, at *5 (petitioners’ claims were

21 properly brought under § 2241 where they alleged there are no conditions of

22 confinement sufficient to prevent irreparable constitutional); Martinez-Brooks,

23 2020 WL 2405350, at *16 (petitioners’ claim was a proper habeas claim because

24 they “contend[ed] that the fact of their confinement in prison itself amounts to an

25 Eighth Amendment violation under these circumstances, and nothing short of an

26 order ending their confinement at FCI Danbury will alleviate that violation.”);

27 Cameron, 2020 WL 2569868, at *27 (holding “§ 2241 is the proper vehicle for

28 Plaintiffs to challenge the continued confinement of medically-vulnerable Jail

14

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 15 of 50 Page ID #:1702

1 inmates during the COVID-19 pandemic” because “Plaintiffs seek release for

2 medically-vulnerable inmates not because the conditions of their confinement fail

3 to prevent irreparable constitutional injury, but based on the fact of their

4 confinement” by claiming “no set of conditions would be constitutionally

5 sufficient”); Malam, 2020 WL 1672662, at *3 (noting “where a petitioner claims

6 no set of conditions would be sufficient to protect her constitutional rights, her

7 claim should be construed as challenging the fact, not conditions, of her

8 confinement and is therefore cognizable in habeas,” and finding because petitioner

9 claimed “no matter what steps are taken, due to her underlying serious health

10 conditions, there is no communal holding facility where she could be incarcerated

11 during the Covid-19 pandemic that would be constitutional[,] Petitioner’s claim

12 must therefore be considered as a challenge to the continued validity of

13 confinement itself”).34

14

Accordingly, the Court concludes Petitioners properly assert a habeas claim

15 pursuant to § 2241 challenging the fact of their confinement.

16 E. Eighth Amendment

17

The Court must analyze whether Petitioners meet their burden of

18 demonstrating they are entitled to preliminary injunctive relief on their claims.

19 Petitioners’ habeas claim is based on Respondents’ alleged violation of their

20 Eighth Amendment rights.35 As part of their habeas claim and direct Eighth

21 Amendment claim, Petitioners seek an order requiring Respondents “to fully

22 utilize their authority to transfer non-violent prisoners with viable release plans to

23 34 Cf. Alvarez, 2020 WL 2315807, at *3 (finding plaintiffs did not challenge the

24

fact or duration of their confinement because unlike the inmates in Wilson v. Williams, plaintiffs failed to allege in the complaint or argue in their application

25

for a temporary restraining order that “there are no set of conditions of confinement that would be constitutionally sufficient”).

26 35 Because the petitioners in Wilson v. Ponce sought a TRO only as to their habeas claim and did not seek immediate relief on their Eighth Amendment claim, the
27 district court did not address the Eighth Amendment claim in denying the application for a temporary restraining order in that case. See Wilson v. Ponce,
28 2020 WL 3053375, at *8.

15

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 16 of 50 Page ID #:1703

1 home confinement and to evaluate quickly compassionate release requests so that

2 they may be escalated to the courts as appropriate.” Petitioners also assert an

3 Eighth Amendment claim challenging the conditions of confinement at Lompoc

4 and requests declaratory and injunctive relief under the Eighth Amendment to

5 order improved conditions for all prisoners who remain at Lompoc, in the form of

6 social distancing, provision of sanitary products and personal protective

7 equipment, improved sanitary practices, adequate testing, contact tracing, and

8 isolation measures.

9

(1) Likelihood of Success on the Merits

10

“[T]he Eighth Amendment applies to conditions of confinement that are not

11 formally imposed as a sentence for a crime.” Helling v. McKinney, 509 U.S. 25,

12 29 (1993). The Supreme Court has recognized that the Eighth Amendment

13 “requires that inmates be furnished with the basic human needs, one of which is

14 ‘reasonable safety,’” and “[i]t is “cruel and unusual punishment to hold convicted

15 criminals in unsafe conditions.” Id. at 33 (citations omitted). Such Eighth

16 Amendment claims are analyzed through a two-pronged inquiry. Id. at 35-37.

17 Under the objective prong, the prisoner must establish “society considers the risk

18 that the prisoner complains of to be so grave that it violates contemporary

19 standards of decency to expose anyone unwillingly to such a risk. In other words,

20 the prisoner must show that the risk of which he complains is not one that today’s

21 society chooses to tolerate.” Id. at 36. The subjective prong “requires an inquiry

22 into the prison officials’ state of mind” based on the “deliberate indifference”

23 standard. Id. at 32. A prison official is deliberately indifferent if he “knows of

24 and disregards an excessive risk to inmate health or safety; the official must both

25 be aware of facts from which the inference could be drawn that a substantial risk

26 of serious harm exists, and he must also draw the inference.” Farmer v. Brennan,

27 511 U.S. 825, 837 (1994).

28

Here, Petitioners show a likelihood of success as to the objective prong.

16

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 17 of 50 Page ID #:1704
1 COVID-19 is a novel, highly infectious virus that has been declared a global 2 pandemic, and resulted in lockdowns of entire countries around the globe to stop 3 the spread of the virus. There are over 2 million confirmed cases of COVID-19 4 and over 130,000 related deaths in the United States, and over 271,00 confirmed 5 cases and over 6,300 reported deaths in California.36 The medically vulnerable are 6 at higher-risk of suffering severe illness or death from COVID-19. Per the CDC, 7 COVID-19 is thought to be transmitted from person to person mainly through 8 respiratory droplets, and social distancing “is a cornerstone of reducing 9 transmission of respiratory diseases such as COVID-19” but “is challenging to 10 practice in correctional and detention environments.” (Rim Decl. Ex. B at 13.) 11 The virus has spread among inmates at Lompoc—859 inmates at FCI Lompoc and 12 170 inmates at USP Lompoc have tested positive for COVID-19 or have been 13 deemed “recovered” by the BOP37 and four inmates at Lompoc have died. The 14 physical configuration of the facilities at Lompoc—i.e., dormitories, multi-person 15 cells, open configurations, community restrooms, and units/rooms shared by 8-10 16 person rooms (see Engleman Decl. ¶¶ 5-6; Cross Decl. ¶ 6)—precludes 17 meaningful social distancing. Petitioners’ medical expert declares “incarcerated 18 individuals tend to be in poorer health than those in the general population,” 19 inmates over the age of 50 and inmates of any age with underlying health 20 conditions are at higher risk for severe illness from COVID-19, and the conditions 21 at Lompoc which preclude effective social distancing measures place inmates at 22 risk for contracting COVID-19. (Samra Decl. ¶¶ 8, 12-14.) Based on one former 23 inmate’s account, during daily count he had to stand shoulder to shoulder with 24 other cellmates, and social distancing was impossible visiting medical for sick 25 call, when picking up daily meals, and within dormitories. (Lumpkin Decl. ¶¶ 1226 36 CDC, Cases and Deaths in the U.S., available at 27 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/us-cases-deaths.html
(last accessed July 7, 2020). 28 37 It is unclear as to how the BOP determines whether an inmate is “recovered.”
17

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 18 of 50 Page ID #:1705

1 16.)

2

Accordingly, Petitioners show they are at substantial risk of exposure to

3 COVID-19, which is inconsistent with contemporary standards of human decency.

4 See Helling, 509 U.S. at 32-35 (noting prison conditions where inmates “in

5 punitive isolation were crowded into cells and that some of them had infectious

6 maladies such as hepatitis and venereal disease . . . was one of the prison

7 conditions for which the Eighth Amendment required a remedy,” and that inmates

8 could state a claim under the Eighth Amendment regarding exposure of inmates to

9 a serious, communicable disease); Wilson v. Williams, 2020 WL 3056217, at *7

10 (petitioners demonstrated they are “incarcerated under conditions posing a

11 substantial risk of serious harm” to satisfy objective prong of Eighth Amendment

12 claim, finding “[t]he transmissibility of the COVID-19 virus in conjunction with

13 Elkton’s dormitory-style housing—which places inmates within feet of each

14 other—and the medically-vulnerable subclass’s health risks, presents a substantial

15 risk that petitioners at Elkton will be infected with COVID-19 and have serious

16 health effects as a result, including, and up to, death”).

17

However, it is not enough to show Lompoc inmates are at risk of

18 contracting COVID-19 or that Respondents were aware of that risk.38 Under the

19 second subjective prong, “[a] prison official may be held liable under the Eighth

20 Amendment for acting with ‘deliberate indifference’ to inmate health or safety

21 only if he knows that inmates face a substantial risk of serious harm and

22 disregards that risk by failing to take reasonable measures to abate it.” Farmer,

23

24 38 The parties do not dispute Respondents are aware of the risk of spread of COVID-19 among Lompoc inmates. Nor could they, given that the BOP
25 implemented a multi-phased plan and certain measures were implemented at Lompoc in response to the COVID-19 pandemic. Moreover, Respondents’
26 knowledge of the risk may be inferred based on the fact 1,065 inmates at Lompoc have tested positive for COVID-19, and four inmates at Lompoc have died. See
27 Wilson v. Williams, 2020 WL 3056217, at *8 (inferring respondents were aware of the risk of COVID-19 to inmates where fifty-nine inmates and forty-six staff
28 members tested positive for COVID-19, and six inmates had died).

18

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1 511 U.S. at 825. Under this standard, “prison officials who actually knew of a

2 substantial risk to inmate health or safety may be found free from liability if they

3 responded reasonably to the risk, even if the harm ultimately was not averted.” Id.

4 at 844. To be deliberately indifferent, Respondents must have a subjective “state

5 of mind more blameworthy than negligence,” akin to criminal recklessness. Id. at

6 835, 839–40.

7

a. Improved Conditions

8

As discussed above, Petitioners’ Eighth Amendment claim seeks improved

9 conditions at Lompoc in light of the pandemic. According to Respondents, the

10 BOP implemented a multiphase approach in response to the COVID-19 pandemic

11 and protective measures have been implemented at Lompoc as follows:

12

During Phase I in January 2020, the BOP established a task force who

13 worked with experts from the WHO and CDC to develop screening protocols for

14 staff, visitors, and inmates. (Engleman Decl. ¶ 54.) The BOP distributed

15 information regarding COVID-19 to inmates February 5, 2020, issued guidance to

16 Lompoc staff on March 10, 2020 explaining the BOP’s screening and leave

17 procedures, and posted CDC posters for inmates on how to stop the spread of

18 respiratory diseases on March 12, 2020. (Id.)

19

Phase II was implemented on March 13, 2020, during which the BOP

20 required each facility to assess its inventories and supplies, update their pandemic

21 plans, and establish quarantine areas in their facilities. The BOP suspended for a

22 period of 30 days social visits, legal visits, inmate facility transfers, official staff

23 travel, staff training, contractor access, volunteer visits, and tours, and required

24 screening of staff and inmates for known COVID-19 symptoms. (Id. ¶ 55.a.) On

25 March 13, 2020, the Acting Warden sent a notice to the inmate population

26 concerning the BOP’s COVID-19 protective measures. (Id.) On March 16, 2020,

27 a staff screening site was established at Lompoc for all staff, essential contractors,

28 and volunteers to be screened before entering the facility. (Id. ¶ 56.) Staff were

19

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1 instructed not to come to work if they are sick, notified personal protective

2 equipment (“PPE”) was available for their use, given screening and leave

3 guidance, and provided information about COVID-19, the importance of

4 handwashing, and stopping the spread of germs. (Id.) CDC posters regarding

5 how to stop the spread of germs were posted for Lompoc inmates on March 25,

6 2020. (Id. ¶ 58.) Lompoc created a Quarantine Unit and sent guidance to staff on

7 its operation, made efforts to keep inmates within their housing units, emphasized

8 extra sanitation of phones and keyboards, mask-wearing and social distancing, and

9 increased personal and area cleanliness. (Id. ¶ 55.b.) On March 27, 2020,

10 Lompoc modified commissary schedules to help limit inmate group contact. Id.

11

Phase III guidance with issued on March 18, 2020 regarding maximizing

12 telework and taking inventory of sanitation and medical supplies. (Engleman

13 Decl. ¶ 57.)

14

On March 26, 2020, the BOP implemented Phase IV which added

15 preventative measures for quarantine and isolation and the use of PPE by

16 screening staff at all institutions, and the measures were updated on March 28,

17 2020. (Id. ¶ 59, Ex. BB.) At USP Lompoc, each housing unit was permitted to go

18 outside to the yard or to education for one hour every other day, and each unit

19 (including quarantined units) were provided showers and phone/computer access

20 every other day. (Id. ¶ 60.)

21

During Phase V, which took effect April 1, 2020, Lompoc implemented the

22 following measures:

23

(1) For a 14-day period, inmates in every institution would be

24

secured in their assigned cells/quarters to decrease the spread of the virus.

25

(2) To the extent practicable, inmates should still have access to

26

programs and services that are offered under normal operating procedures, such as mental health treatment and education.

27

(3) The BOP would coordinate with the United States Marshals

28

Service (“USMS”) to significantly decrease incoming movement.

20

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1

(4) After 14 days, this decision would be reevaluated and a decision made as to whether or not to return to modified

2

operations.

3

(5) Limited group gathering would be afforded to the extent practical to facilitate commissary, laundry, showers, telephone,

4

and Trust Fund Limited Computer System (TRULINCS) access.

5 (Id. ¶ 61.) All Lompoc inmates were confined to their cells for the majority of the

6 day, meals and a limited number of commissary items were delivered to inmates’

7 cells, inmates were permitted to leave their cells in small groups on a rotating

8 basis at designated times for approximately 2.5-3 hours a day depending on the

9 day of the week and with appropriate physical distancing for activities such as

10 telephone use, TRULINCS, showers, and exercise. (Id.) On April 6, 2020, the

11 BOP issued guidance to all CEO’s directing them to immediately implement CDC

12 guidelines and to issue masks to inmates, surgical masks were issued to all

13 inmates and staff, and three washable cloth masks for each inmate were later

14 distributed. (Id.) On April 7, 2020, staff were emailed a reminder regarding daily

15 sanitation and the continued need for social distancing, using PPE as instructed,

16 and keeping frequently touched areas clean and disinfected, and sanitation efforts

17 increased at BOP facilities. (Id. ¶ 65.) On April 8, 2020, the BOP Director posted

18 a memorandum to the inmate population notifying them of the first positive

19 confirmed COVID-19 case of an inmate on March 21, 2020 and the first positive

20 staff case on March 22, 2020. (Id. ¶ 67, Ex. X at 7.) Lompoc staff was sent

21 information on COVID-19 and steps to take to stay healthy and to stop the spread

22 of the virus, information on the proper use of face coverings was posted for the

23 inmate population on April 13, 2020, and signs and guidance were posted in

24 Housing Unit areas. (Id. ¶¶ 67, 68, Ex. EE at 13.)

25

Phase VI, which was in effect from April 13, 2020 to May 18, 2020,

26 included efforts to mitigate the spread of COVID-19, limited movement of staff

27 and inmates, outlined criteria for quarantine and isolation of inmates, minimized

28 outside contacts, and addressed continued use of PPE. (Engleman Decl. ¶ 69.)

21

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 22 of 50 Page ID #:1709

1 Assistant Directors ordered inmates be secured in their assigned cells/quarters,

2 limited group gatherings were provided to the extent practical to facilitate

3 telephone, TRULINCS, commissary, laundry and showers. (Id.) On April 16,

4 2020, Lompoc cancelled all staff scheduled leave and posted notices to inmates

5 regarding handwashing and information regarding COVID-19. (Id. ¶ 70, Ex. X at

6 14-16.) On April 17, 2020, Lompoc mandated use of masks, began restricting

7 inmates to their housing units, and restricted inmate use of phone and TRULINCS.

8 (Id.) All Lompoc inmates were issued surgical and cloth masks, and required to

9 wear a mask at all times. (Id. ¶¶ 71, 71.a, 71.b, Ex. NN at 63, 71.c.) Replacement

10 masks were available upon request. (Id. ¶ 71.a, 71.b, Ex. NN at 63, 71.c.) Each

11 inmate received disinfectant and paper towels. (Id. ¶ 71.a, 71.b, Ex. NN at 63,

12 71.c.) Inmates could send and receive mail and legal calls were made available as

13 needed. (Id. ¶¶ 71.a, 71.b.) At FCI Lompoc, movement was limited to use of

14 restrooms or communicating with staff. (Id. ¶ 71.c.) Hygiene items were issued

15 weekly, and laundry exchange occurred weekly at USP Lompoc and FCI Lompoc.

16 (Id. ¶¶ 71.a, 71.c.) Commissary, food services, medical services, and laundry

17 services were not affected for Camp inmates during Phase VI. (Id. ¶ 71.b, Ex. NN

18 at 63.) Commissary was suspended, but food services, medical services and

19 laundry services were not affected at FCI Lompoc. (Id. ¶ 71.c.)

20

On April 17, 2020, Lompoc implemented 14 days of enhanced mitigation

21 measures including suspending all phone and computer access due to concerns

22 regarding spread of COVID-19 through surfaces, limiting movements at USP

23 Lompoc to cells so there was no access to showers, but weekly laundry exchange

24 continued. USP Lompoc inmates were allowed to have commissary for up to $50,

25 commissary services were suspended at FCI Lompoc, and usually commissary

26 services were permitted for Camp inmates. (Id. ¶ 72.) On April 20, 2020 Lompoc

27 issued a press release and staff were advised Lompoc was negotiating a contract

28 for an on-side mobile hospital equipped with hospital beds and medical personnel,

22

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1 and the Lompoc Warden asked staff to wear masks even when in the community.

2 Id. ¶ 73.) On April 29, 2020 a document regarding Frequently Asked Questions

3 was distributed to Lompoc inmates. (Id. ¶ 74, Ex. II.)

4

On May 4, 2020, modified operations went into effect at USP Lompoc and

5 the Camp, which included allowing inmates to use showers one at a time with the

6 area being disinfected after each use, allowing brief phone and email access with

7 sanitation and disinfection standards, and requiring wearing surgical masks at all

8 times. (Id. ¶ 75.) On May 4, 2020, Lompoc announced completed construction of

9 a hospital care unit (HCU) inside Lompoc with ten (10) double-occupancy, acute

10 care treatment rooms with negative pressure, Patient Intake Room, Nurses Station,

11 Pharmacy, Linen Exchange Room, Biohazard Room, and Medical Supply &

12 Storage, and that a contract for medical personnel had been negotiated. (Id. ¶ 76,

13 Ex. JJ.) On May 5, 2020, Lompoc announced it was testing 100% of inmates for

14 COVID-19, starting at FCI Lompoc and additional information was posted in

15 inmate housing units such as information identifying symptoms and changes in

16 CDC guidance regarding symptoms. (Id. ¶ 76, Ex. EE.) Staff were reminded by

17 the acting warden of Lompoc on May 8, 2020, that they were “continuously

18 reviewing inmates for Residential Reentry Centers, Home Confinement

19 placements, furlough eligibility prior to placement in RRC/HC’s, to further allow

20 us to create the environment needed in a correctional setting to counter COVID-

21 19.” (Id. ¶ 79.) Lompoc staff were emailed regarding following guidance re:

22 social distancing, wearing masks in public, and donning PPE. (Id.) On May 12,

23 2020, Lompoc announced the activation of the Hospital Care Unit and that

24 inmates with less severe COVID-19 symptoms would be returned to the facility,

25 and announced impending installation of a BLU-Med Hospital Tent at FCI

26 Lompoc. (Id. ¶ 80.) On May 14, 2020, Lompoc issued additional guidance for

27 certain units at USP Lompoc, effective May 18, 2020, which required social

28 distancing, use of masks, and sanitation standards but permitted inmates of groups

23

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 24 of 50 Page ID #:1711

1 of no more than 10 at a time to use common areas for one-hour periods to use

2 phones, computers and to shower. (Id. ¶ 81.)

3

Phase VII, which took effect on May 18, 2020, extended the Phase VI

4 action plan through June 30, 2020. (Engleman Decl. ¶ 82, Ex. KK.) All inmates

5 were continued to their cells for the majority of the day but inmates are allowed to

6 leave their cells in small groups on a rotating basis at designated times for certain

7 activities such as phone use, TRULINCS, showers and exercise; and meals are

8 delivered directly to housing units. (Id. ¶ 83.)

9

Phase VIII, effective July 1, 2020, extends Phase VII through July 31, 2020,

10 and includes procedures regarding inmate “Court trips”; intake procedures

11 regarding symptom and temperature screening, testing, isolation, and quarantine;

12 and movement of inmates between BOP institutions. (Dkt. No. 40, Ex. D.)

13

Respondents also state additional measures were taken at Lompoc.

14 Respondents provided COVID-19 testing for FCC Lompoc staff. (Engleman

15 Decl. ¶ 67.) According to evidence submitted by Respondents, FCC Lompoc

16 medical staff “regularly” screens inmates through temperature and symptom

17 checks, and all staff, contractors and essential volunteers must undergo a health

18 screening before they are allowed to enter the facility. (Cross Decl. ¶¶ 15, 19.c,

19 24, 30, 33.)

20

With respect to USP Lompoc, inmates in the general population at USP

21 Lompoc are issued soap on a weekly basis, and soap may be purchased at the

22 commissary. (Engleman Decl. ¶ 65.a.) Chemical sanitizer is available on a daily

23 basis, but hand sanitizer is not available to inmates. (Id.) Cleaning supplies are

24 distributed to all units on a weekly basis and available to inmates daily. (Id.)

25 Inmates in SHU are distributed seven packs of multi-soap shampoo on Tuesdays

26 and Thursday. (Id.) The SHU Law Library is disinfected after each inmate use.

27 (Id.) At the North and South Camps of USP Lompoc, there are two antibacterial

28 foam hand wash dispensers, computer keyboards are covered with plastic bags for

24

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 25 of 50 Page ID #:1712

1 individual use, inmates are issued soap each Friday, cleaning supplies are

2 distributed to all units on a weekly basis and are available to inmates daily. (Id. ¶

3 65.b.)

4

As to FCI Lompoc, the Lompoc Assistant Warden declares staff administer

5 sanitizer before and after inmates use computer keyboards or phones, saran wrap

6 is placed on keyboards prior to each inmates’ use, and phones are disinfected

7 between each use. (Id. ¶ 65.b.) Liquid antibacterial soap is dispensed in unit

8 bathrooms. (Id.) Cleaning supplies are distributed to all units on a weekly basis

9 and are available to inmates daily. (Id.) Indigent inmates are issued soap on a

10 weekly basis. (Id.) Inmates are not provided hand sanitizer for their personal

11 possessions. (Id. ¶ 65.c.) Every inmate at FCI Lompoc has been tested for

12 COVID-19. (Cross Decl. ¶ 15; Engleman Decl. ¶ 54.)

13

The accounts offered by Petitioners, however, paint a different picture.

14 Petitioner Carror-Torres sent a letter to his sister which she received on April 24,

15 2020, wherein he wrote he was extremely sick and concerned he might have

16 COVID-19. (Carror Decl. ¶ 5.)39 She received another letter on April 30, 2020

17 from his cellmate who informed her Carror-Torres had asked guards for medical

18 assistance for five days but was ignored, suffered from fever, diarrhea, body

19 aches, went into acute respiratory failure and collapsed in his cell, and was taken

20 to a hospital and put into a medically-induced coma after inmates in his block

21 banged their cell doors demanding he receive medical attention, where he later

22 tested positive for COVID-19, was intubated and put on a ventilator. (Id. ¶¶ 6-7.)

23 39 The Court may consider inadmissible evidence, including hearsay evidence, in
24 determining whether to issue a temporary restraining order or preliminary injunction. See Houdini Inc. v. Goody Baskets LLC, 166 F. App’x 946, 947 (9th
25 Cir. 2006) (“[T]he district court did not abuse its discretion in considering hearsay and biased evidence of actual confusion because the rules of evidence do not
26 strictly apply to preliminary injunction proceedings.”); Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) (In deciding whether to issue a
27 temporary restraining order, the district court “may give even inadmissible evidence some weight, when to do so serves the purpose of preventing irreparable
28 harm before trial.”).

25

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 26 of 50 Page ID #:1713

1 Carror-Torres telephoned his sister on May 9, 2020 stating his doctor told him he

2 suffered acute lung damage from COVID-19 due to his asthma and his lung

3 capacity was severely deteriorated as a result and was briefly placed in a

4 quarantine unit then placed back in his original cell. (Id. ¶ 9.)

5

On March 27 or 28, 2020, Petitioner Reed began exhibiting symptoms of

6 COVID-19, was tested on March 30, 2020 and immediately placed in a Special

7 Housing Unit (“SHU”) after being tested, was confirmed to be positive for

8 COVID-19 on March 31, 2020, saw a doctor for a temperature and symptom

9 check, and then left in SHU with no medical treatment and did not see a doctor or

10 medical staff again until April 7, 2020. (Perales Decl. ¶ 6.) After several days in

11 the SHU, Reed was moved to dormitory Unit 2 H with other prisoners who had

12 tested positive for COVID-19. (Id. ¶ 7.) For days after Reed arrived at Unit 2 H,

13 no treatment or medicine was made available to anyone in the unit other than daily

14 temperature checks, there was no soap, the prisoners were not allowed to shower,

15 and conditions at the unit were extremely unsanitary. (Id. ¶ 8.) On April 14,

16 2020, Reed was returned to the general population at USP Lompoc, but he was not

17 tested again for COVID-19 and only received an in-cell evaluation after his return

18 to the general population. (Id. ¶ 9.) Reed and others in the general population at

19 USP Lompoc do not have access to disinfectants or hand sanitizer, are only given

20 one small bar of soap each week and cannot purchase any more soap once they

21 run out because the commissary is closed. (Id. ¶ 10.)

22

Petitioner Fears has received one mask since the COVID-19 pandemic

23 began, has had to reuse that mask, and has not been tested for COVID-19. (Zayed

24 Fears Decl. ¶¶ 5-6.) The only testing Fears has seen in his dormitory is

25 temperature checks, and Fears states guards have stopped accepting requests for

26 medical care from prisoners since the COVID-19 outbreak started. (Id.)

27

In early May 2020, Petitioner Garcia tested negative for COVID-19, and

28 was then moved to a makeshift prisoner housing unit set up in a warehouse at USP

26

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1 Lompoc on May 7, 2020, where he was placed in a small cell with one cellmate

2 with whom he has to share a toilet and sink. (Zavala-Garcia Decl. ¶ 4.) The

3 warehouse is on total lockdown and Garcia is kept in his cell almost 24-hours a

4 day. (Id.) The warehouse is extremely unsanitary, Garcia has not been able to

5 shower or change into clean clothes since May 7, 2020, and Garcia has to wash his

6 body with water from his sink. (Id.) Garcia received one mask in late April while

7 he was at FCI Lompoc and has had to reuse that mask since then, has not been

8 given access to hand sanitizer, and states there is a shortage of soap in the

9 warehouse.

10

According to a former inmate who was incarcerated FCI Lompoc, inmates

11 have to wait in a waiting room with approximately 10 seats with up to 40 people

12 when they “went to medical for sick call” and “social distancing was impossible.”

13 (Lumpkin Decl. ¶ 13.) Inmates also had to line up “less than six feet apart in their

14 housing units for pill call.” (Id.) Dorms have long rows of two-man bunks spaced

15 closed together where social distancing is impossible, and inmates had to go up

16 and down narrow stairwells shoulder to shoulder with other inmates twice a day to

17 pick up meals and bring them back to their housing unit. (Id. ¶¶ 14-16.) Inmates

18 were not removed from the housing units and isolated even if they had symptoms

19 like severe coughing unless their temperature was 100.4 degrees or higher. (Id. ¶¶

20 27-28.) When inmates asked for a replacement for their mask which had been

21 damaged, they were told by correctional staff that they did have any more masks.

22 (Id. ¶ 33.) Inmates did not have adequate supplies of soap, if they showered and

23 washed your hands regularly it would run out in a few days, liquid dispensers at

24 sink would be empty by lunch time, and they were not provided with hand

25 sanitizer. (Id. ¶ 37.) Inmates were not provided with enough cleaning supplies to

26 clean shared bathrooms and housing units, were given water downed cleaning

27 solution, and were not given paper towels. (Id. ¶ 38.) The former inmate recalls

28 once guards brought 36 rags to be used by all 140 prisoners on his floor to clean

27

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1 their bunks, bathroom faucets, and toilet handles. (Id.)

2

The disputed facts as to the safety measures implemented at Lompoc

3 precludes the Court from issuing a temporary restraining order at this stage

4 requiring Respondents to implement the specific safety measures to combat

5 COVID-19 requested by Petitioners.40 See Mayview Corp. v. Rodstein, 480 F.2d

6 714, 719 (9th Cir. 1973) (holding “[b]ecause of the disputed facts, the matter

7 should proceed to trial on the merits” and preliminary injunction was improper).41

8

Moreover, the fact that COVID-19 has spread among Lompoc inmates does

9 not establish Respondents have the necessary state of mind to satisfy the

10 subjective deliberate indifference prong for Petitioners’ Eighth Amendment claim

11 as to the safety measures implemented to protect inmates from COVID-19. See

12 Farmer, 511 U.S. at 844 (the fact that “the harm ultimately was not averted” does

13 not demonstrate deliberate indifference); Wilson v. Williams, 2020 WL 3056217,

14 at *8 (finding “while the harm imposed by COVID-19 on inmates at Elkton

15 ultimately [is] not averted, the BOP has responded reasonably to the risk and

16 therefore has not been deliberately indifferent to the inmates’ Eighth Amendment

17 rights,” noting evidence that the BOP took preventative measures, including

18 screening for symptoms, educating staff and inmates about COVID-19, cancelling

19 visitation, quarantining new inmates, implementing regular cleaning, providing

20 disinfectant supplies, providing mask, and engaging in efforts to expand testing

21 “demonstrate the opposite of a disregard of a serious health risk”) (internal

22 quotations and citations omitted); Valentine v. Collier, 956 F.3d 797, 802-03 (5th

23 40 At the July 7, 2020 hearing, Petitioners acknowledged there are facts in dispute 24 as to the conditions at Lompoc.
41 See also Martinez-Brooks, 2020 WL 2405350, at *29 (“[F]actual disputes 25 preclude me from concluding at this stage that the Warden’s implementation of
measures to protect against the spread of COVID-19 exhibits deliberate 26 indifference to the serious risks posed by the virus, and thus that the Petitioners
are likely to succeed on the merits of this portion of their claim,” and “ I thus deny 27 the Petitioner’s request for a temporary restraining order to the extent that it asks
the Court to direct the Warden to implement safety measures and report to the 28 Court on the status of those measures.”).

28

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 29 of 50 Page ID #:1716
1 Cir. 2020) (prison officials showed likelihood of success on appeal of preliminary 2 injunction issued by district court required the officials to immediately implement 3 more preventive measures to combat COVID-19 in Texas state prison, reasoning 4 the plaintiffs lacked evidence of the defendants’ “subjective deliberate 5 indifference” to the substantial risk of serious harm of COVID-19 and noting “[t]o 6 the contrary, the evidence shows that [Texas Department of Criminal Justice] has 7 taken and continues to take measures—informed by guidance from the CDC and 8 medical professionals—to abate and control the spread of the virus”); Swain v. 9 Junior, 958 F.3d 1081, 1089 (11th Cir. 2020) (noting the district court incorrectly 10 collapsed the subjective and objective components of the deliberate indifference 11 inquiry for plaintiffs’ Eighth Amendment claim and likely erred because (1) 12 resultant harm does not establish a liable state of mind for deliberate indifference 13 but the district court “treated the increase in COVID-19 infections as proof that 14 the defendants deliberately disregarded an intolerable risk”; and (2) “the inability 15 to take a positive action likely does not constitute ‘a state of mind more 16 blameworthy than negligence’” required for deliberate indifference but the district 17 court treated defendants’ inability to “achieve meaningful social distancing” as 18 evincing a reckless state of mind for the subjective component of plaintiffs’ claim 19 despite acknowledging social distancing was “impossible” and “cannot be 20 achieved absent an additional reduction in Metro West’s population or some other 21 measure to achieve meaningful social distancing”).42 22
42 Cf. Cameron, 2020 WL 1929876, at *2 (preliminarily finding deliberate 23 indifference in violation of the Eighth Amendment when jail “has not imposed
even the most basic safety measures recommended by health experts, the Centers 24 for Disease Control and Prevention, and Michigan’s Governor to reduce the
spread of COVID-19 in detention facilities”); Banks v. Booth, 2020 WL 1914896, 25 at *10-*11 (D.D.C. Apr. 19, 2020) (finding plaintiffs established a likelihood of
success in showing deliberate indifference where plaintiffs provided evidence the 26 defendants “are aware of the risk that COVID-19 poses to Plaintiffs’ health and
have disregarded those risks by failing to take comprehensive, timely, and proper 27 steps to stem the spread of the virus,” including evidence “inmates who have
requested medical aid for COVID-19 symptoms report long waits for medical 28 care, testing, or separation from the general population”).
29

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1

b. Requests for Home Confinement and Compassionate

2

Release

3

Aside from the safety measures implemented to prevent the spread of

4 COVID-19 at Lompoc, Petitioners also contend Respondents are violating the

5 Eighth Amendment by failing and/or misusing their statutory authority pursuant to

6 the CARES Act to maximize transfers to home confinement during the pandemic.

7

18 U.S.C. § 3624 authorizes the BOP to place certain prisoners on home

8 confinement for the shorter of 10 percent of the term of imprisonment of that

9 prisoner or 6 months. On March 26, 2020, Attorney General William Barr issued

10 a memorandum directing the BOP to prioritize the use of “various statutory

11 authorities to grant home confinement for prisoners seeking transfer in connection

12 with the COVID-19 pandemic.” The Attorney General’s March 26 memorandum

13 provided a list of discretionary factors for evaluating inmates for confinement,

14 which included: (1) “[t]he age and vulnerability of the inmate to COVID-19, in

15 accordance with the Centers for Disease Control and Prevention (CDC)

16 guidelines”; (2) “[t]he security level of the facility currently holding the inmate,

17 with priority given to inmates residing in low and minimum security facilities”;

18 “[t]he inmate’s conduct in prison”; (3) “[t]he inmate’s score under PATTERN,

19 with inmates who have anything above a minimum score not receiving priority

20 treatment under this Memorandum”; (4) “[w]hether the inmate has a demonstrated

21 and verifiable re-entry plan that will prevent recidivism and maximize public

22 safety”; and (5) “[t]he inmate’s crime of conviction, and assessment of the danger

23 posed by the inmate to the community.”43

24

Section 12003(b)(2) of the CARES Act, enacted on March 27, 2020,

25 authorizes the Attorney General to expand the BOP to lengthen the maximum

26

27 43 Attorney General Barr noted in the March 26 memorandum that “[s]ome offenses, such as sex offenses, will render an inmate ineligible for home
28 detention.”

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1 amount of time a prisoner may be placed on home confinement pursuant to §

2 3624(c)(2) upon finding “emergency conditions will material affect the

3 functioning of the [BOP].” CARES Act, Pub. L. No. 116-136, § 12003(b)(2). On

4 April 3, 2020, Attorney General Barr issued a memorandum to the Director of the

5 BOP, wherein Barr found emergency conditions are materially affecting the

6 functioning of the BOP as a result of the pandemic. The April 3 memorandum

7 instructed the BOP to continue processing inmates eligible for home confinement

8 under pre-CARES Act standards, and directed the BOP to “expand the cohort of

9 inmates who can be considered for home release . . . to the most vulnerable

10 inmates at the most affected facilities” and “immediately review all inmates who

11 have COVID-19 risk factors, as established by the CDC.”44

12

Respondents contend the BOP’s multiphase plan included consultation with

13 experts from the CDC. The CDC’s own guidelines, however, provide that social

14 distancing is “a cornerstone of reducing transmission of respiratory disease.”45

15 The BOP’s multiphase plan does not include measures for meaningful social

16 distancing.46 Moreover, the number of inmates incarcerated at Lompoc is over the

17 designated capacity.47 Four inmates at Lompoc have died and over 1,000 Lompoc

18

19

44 In the April 3 memorandum, Attorney General Barr also wrote “we cannot simply release prison populations en masse onto the streets” because of risks to

20

the public of criminal activity from released prisoners, and thus directed the BOP to “continue making the careful, individualized determinations BOP makes in the

21 typical case.”

45 CDC, Interim Guidance on Management of Coronavirus Disease 2019

22 (COVID-19) in Correctional and Detention Facilities at 4 (Mar. 23, 2020),

available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-

23 correctional-detention.pdf.

24 46 Accord Wilson v. Williams, 2020 WL 3056217, at *13 (Cole, dissenting). 47 See Federal Bureau of Prisons, Prison Rape Elimination Act (PREA) Audit
25 Report at 2, 6, available at https://www.bop.gov/locations/institutions/lof/prea_lof.pdf (last accessed July 7,
26 2020); Federal Bureau of Prisons, USP Lompoc, available at https://www.bop.gov/locations/institutions/lom/ (last accessed July 9, 2020);
27 Federal Bureau of Prisons, FCI Lompoc, available at https://www.bop.gov/locations/institutions/lof/ (last accessed July 9, 2020); see
28 also Engleman Decl. ¶ 7.

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1 have tested positive for COVID-19. The evidence before the Court demonstrates

2 meaningful social distancing is not possible at Lompoc absent a reduction in the

3 inmate population, thereby placing medically vulnerable inmates at Lompoc at

4 significant risk of contracting COVID-19. Congress recognized the serious threat

5 to the health and safety of inmates in light of COVID-19 and the urgent need for

6 reduction of the inmate population in certain institutions in passing the CARES

7 Act.

8

Despite passage of the CARES Act, and despite the Attorney General’s

9 Memorandum emphasizing the existence of emergency conditions facing the BOP

10 as the result of the pandemic and the need for “immediate[]” review of inmates

11 with COVID-19 risk factors for home confinement, there is no evidence

12 Respondents are prioritizing their use of statutory authority under the CARES Act

13 to grant home confinement to Lompoc inmates in light of the pandemic, or giving

14 due consideration to inmates’ age or medical conditions in evaluating eligibility of

15 home confinement. As of April 20, 2020, only 59 Lompoc inmates had been

16 considered for home confinement and 24 inmates were scheduled to be released to

17 home confinement or a Residential Reentry Center. (Rim Decl. Ex. Q.) There is

18 no evidence before the Court regarding how many inmates have actually been

19 released to home confinement in light of the pandemic.48

20

A request for home confinement on behalf of Petitioner Garcia was sent to

21 the Lompoc Warden on May 11, 2020, but no response has been received.

22 (Zavala-Garcia Decl. ¶ 8.) According to Lompoc’s Reduction in Sentence

23 Coordinator, Garcia’s request is being reviewed by staff to determine whether he

24 qualifies. (Arnold Decl. ¶ 6.c.) The Associate Warden, however, declares

25 48 At the July 7, 2020 hearing, Respondents represented that since April 2, 2020,
26 840 Lompoc inmates have been considered for home confinement. Respondents, however, did not have information regarding how many of the 840 inmates have
27 actually been placed on home confinement, and there is no evidence before the Court as to what criteria was applied by Respondents in determining those
28 inmates’ eligibility for home confinement.

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1 Petitioner Garcia is not “suitable for home confinement at this time” because he

2 has a prior conviction for engaging in an act of unlawful sexual intercourse with a

3 minor and must participate in and complete the transitional component of the drug

4 treatment program at the RCC to earn a reduction in sentence under 18 U.S.C. §

5 3621. (Id. ¶ 49 b.)

6

Petitioner Carror-Torres suffers from chronic asthma (Carror Decl. ¶ 2), and

7 therefore is at higher risk for severe illness or death from COVID-19.49 The

8 Associate Warden of Lompoc, however, declares Carror-Torres is “unsuitable for

9 CARES Act home confinement” because he was convicted of a violent offense

10 and because sexual assault was an element of the offense for which Carror-Torres

11 was convicted. (Id. ¶¶ 49.a, 49.b.)

12

Petitioner Brown is 55 years old, has prostate cancer and will need future

13 treatment (chemotherapy or surgery), and therefore may be at higher risk for

14 contracting COVID-19. (Wefald Decl. ¶¶ 1, 6.) However, the Associate Warden

15 declares Brown has not been “prioritized for home confinement at this time due to

16 [his] low (rather than minimum) risk for recidivism.” (Engleman Decl. ¶ 50.)50

17

Petitioner Reed is 53 years old and has hypertension. (Perales Decl. ¶ 2.)

18 The Associate Warden, however, declares Reed is “unsuitable for CARES Act

19 home confinement” of his violent crime conviction. (Engleman Decl. ¶ 49.a.)

20 Petitioner Fears is 50 years old (Zayed Fears Decl. ¶ 2), but Respondents state

21 Fears does not qualify for priority placement on home confinement because of his

22

23

49 While Carror-Torres has already tested positive for COVID-19 and has been released from the hospital after receiving treatment, he was informed he suffered

24

acute lung damage from COVID-19 due to his asthma and his lung capacity was severely deteriorated as a result. (Carror Decl. ¶¶ 6-7, 9.) Moreover, it is

25

unknown at this time whether persons who contract COVID-19 are immune from the virus or how long any such immunity would last.

26 50 As to the remaining named Petitioners, the Associate Warden of Lompoc declares Petitioner Reed is “unsuitable for CARES Act home confinement”
27 because he has been convicted of a violent offense (Engleman Decl. ¶ 49.a), and Petitioner Fears has not been “prioritized for home confinement at this time due to
28 [his] low (rather than minimum) risk for recidivism” (id. ¶ 50).

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1 risk of recidivism.

2

After the July 7, 2020 hearing, Respondents filed a declaration from Todd

3 Javernick, the Regional Correctional Programs Administrator for the Western

4 Region of the BOP, who declared a May 8, 2020 memorandum from the Acting

5 Assistant Director over Correctional Programs Division and the Assistant Director

6 over Reentry Services Division was issued which “provided that a Warden may

7 refer for further review any inmate that does not meet the current suitability

8 criteria but does have COVID-19 risk factors for severe disease to the Correctional

9 Programs Division in Central Office.” (Javernick Decl. ¶ 20.) However, there is

10 no evidence that the Warden at Lompoc has referred any inmate for home

11 confinement based only on his COVID-19 risk factors for severe illness following

12 the May 8, 2020 memorandum. Javernick also declares a “roster” of inmates to

13 review for home confinement was sent out by the BOP on May 12, 2020, which

14 was generated solely based on an inmate’s age being 65 or older, “home

15 confinement consideration was emphasized and it was suggested that inmates be

16 sent up for further review by the Correctional Programs Division for review as an

17 exception if they don’t meet the criteria for home confinement placement for any

18 reason.” (Id. ¶ 21.) However, there is no evidence any Lompoc inmates were

19 identified in the May 12, 2020 roster or considered for home confinement based

20 on their age being 65 or older.

21

Accordingly, the evidence demonstrates Respondents have ignored, and

22 therefore have likely been deliberately indifferent, to the known urgency to

23 consider inmates for home confinement, particularly those most vulnerable to

24 severe illness or death if they contract COVID-19, in failing to make prompt and

25 meaningful use of home confinement and disregarding inmates’ age and medical

26 conditions in determining eligibility for home confinement.51 Petitioners therefore

27 51 At the July 7, 2020 hearing, Respondents represented the BOP has identified

28

Lompoc inmates who are “medically vulnerable” consistent with CDC guidelines as part of the home confinement process, but no evidence in support of this

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1 demonstrate a likelihood of success on their Eighth Amendment claim based on

2 the Lompoc Warden’s failure to take reasonable measures to reduce risk of serious

3 harm to inmates by failing to make meaningful use of his home confinement

4 authority as expanded by the CARES Act. See Wilson v. Williams, 2020 WL

5 3056217, at *14 (Cole, Dissenting) (The BOP’s failure to make use of its home

6 confinement authority at Elkton, “constitutes sufficient evidence for the district

7 court to have found that petitioners were likely to succeed on their Eighth

8 Amendment claim”); Martinez-Brooks, 2020 WL 2405350, at *23, *26 (noting the

9 “Eighth Amendment requires that [the determination of whether to place an

10 inmate on home confinement] be made promptly,” and finding petitioners showed

11 a likelihood of success on the merits on their Eighth Amendment claim with

12 respect to the medically vulnerable subclass because the Danbury Warden “has

13 disregarded a ‘substantial risk of serious harm’ by ‘failing to take reasonable

14 measures to abate it’” by “failing to make meaningful use of her home

15 confinement authority”) (quoting Farmer, 511 U.S. at 847).

16

Petitioners also argue Respondents are violating the Eighth Amendment by

17 not granting compassionate release of Lompoc inmates. Under 18 U.S.C. §

18 3582(c)(1)(A), a sentencing court may reduce a defendant’s term of imprisonment

19 upon a motion by the Director of the BOP or the defendant, if it finds that

20 “extraordinary and compelling reasons warrant such a reduction.” For the BOP to

21 bring a motion for compassionate release on behalf of a defendant, the warden

22 must determine that the request warrants approval, and then the request must be

23 reviewed by the General Counsel and either the Medical Director or the Assistant

24 Director, Correctional Programs Division, before the Director of the BOP brings a

25 motion for compassionate release under 18 U.S.C. § 3582(c). 28 C.F.R. § 571.62.

26

27 representation has been provided to the Court. At the hearing, Respondents were unable to identify for the Court how many Lompoc inmates are considered
28 “medically vulnerable” consistent with CDC guidelines.

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1 A defendant may bring a motion for compassionate release after “fully

2 exhaust[ing] all administrative rights to appeal a failure of the Bureau of Prisons

3 to bring a motion on the defendant’s behalf” or “the lapse of 30 days from the

4 receipt of such a request by the warden of the defendant’s facility, whichever is

5 earlier.”

6

There is no evidence demonstrating consideration of Lompoc inmates’ risk

7 factors for severe illness or death from COVID-19 in evaluating requests for

8 compassionate release, and Petitioners’ evidence suggests requests for

9 compassionate release are discouraged/not being accepted at Lompoc. Petitioners

10 state Petitioner Garcia submitted a request for compassionate release to the

11 Lompoc Warden on April 12, 2020 but has not yet been granted release.52 Melissa

12 Arnold, the Reduction in Sentence Coordinator at FCC Lompoc, declares

13 Garcia’s request is being reviewed by staff to determine whether he qualifies for

14 release. (Arnold Decl. ¶ 6.) However, Respondents do not submit evidence

15 regarding what has been done so far by staff in reviewing the requests, what

16 remains to be done, how long the staff review will take, when staff

17 recommendations will be presented to the Lompoc Warden, or when the ultimate

18 determination will be made on Petitioners Garcia’s request.53 Richard Lumpkin, a

19 former Lompoc inmate who was released on May 8, 2020 after a court granted his

20 motion for compassionate release, declares on or about April 13, 2020 a prison

21 official announced, “do not submit any request for compassionate release, or

22 grievances because staff is not accepting them because we are understaffed.”

23

24 52 Respondents represented at the July 7, 2020 hearing that Garcia’s request is still 25 being reviewed.
53 Arnold declares after staff completes their review of Petitioner Carror-Torres, 26 Garcia, and Brown’s requests, they “will submit a recommendation as to the
disposition of the application,” and “[t]he Warden will then consider that 27 recommendation and will either forward the application to the BOP’s Office of
General Counsel for further processing or will deny the application and inform the 28 inmate of that denial in writing.” (Arnold Decl. ¶ 7.)

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1 (Lumpkin Decl. ¶ 46.)54 Lumpkin also declares another inmate, Anthony

2 Samuels, had submitted a request for compassionate release to his unit case

3 manager and asked that it be forwarded to the warden for consideration but was

4 told “I’ll forward it to my shredder,” and has not received a written response from

5 the case manager or warden regarding his request for compassionate release. (Id.

6 ¶ 47.)55

7

Respondents do not submit evidence regarding how many Lompoc inmates

8 have been considered for compassionate release by the Warden since the

9 pandemic began, how many requests for compassionate release (if any) have been

10 brought by the BOP on behalf of Lompoc inmates, or how many Lompoc inmates

11 have actually been released under 18 U.S.C. § 3582(c).56 Respondents’ failure to

12 make reasonable and prompt use of compassionate release to reduce the inmate

13 population is buttressed by the fact that the evidence before the Court

14 demonstrates the number of inmates at Lompoc is over the designated capacity for

15 inmates.

16

Therefore, Respondents’ failure to take reasonable measures to promptly

17 review and grant requests for compassionate release or move for compassionate

18

19 54 See also United States v. Pippin, 2020 WL 2602140, at *2 (W.D. Wash. May

20, 2020) (The Court “implore[ed] FCI-Lompoc to respond to” the petitioner’s

20 request for compassionate release request and petitioner’s counsel sent the court’s

order to FCI-Lompoc in an email but “FCI-Lompoc never responded”).

21 55 Requests for compassionate release were also submitted to the Lompoc Warden

22

on behalf of Petitioner Carror-Torres on May 11, 2020 and behalf of Petitioner Brown on May 13, 2020. (Carror Decl. ¶ 11; Wefald Decl. ¶ 7.) There is no

23

evidence before the Court that a response has been received, but Respondents represented at the July 7, 2020 hearing that the BOP has denied Carror-Torres and

24

Brown’s requests. However, no evidence has been submitted regarding the reasons for the purported denials of Carror-Torres and Brown’s requests for

25

compassionate release. Respondents represented at the hearing Brown is being considered as an “exception” for home confinement but no information was

26

provided as to the type of exception for which he is being considered or when a determination will be made as to whether he will be placed on home confinement

27 under such an “exception.”

56 Respondents were unable to provide such information in response to the Court’s

28 inquiries at the July 7, 2020 hearing.

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1 release on behalf of Lompoc inmates to reduce the inmate population at Lompoc

2 further demonstrates Respondents’ deliberate indifference to inmates’ risk of

3 severe illness or death from COVID-19. See Martinez-Brooks, 2020 WL

4 2405350, at *24 (finding petitioners showed a likelihood of success on the merits

5 on their claim that the Respondents are displaying deliberate indifference in

6 violation of the Eighth Amendment based on evidence demonstrating FCI

7 Danbury staff’s failure to grant a single request for compassionate releasee,

8 respondents’ failure to adjust the standards for compassionate release to take into

9 account “new ‘extraordinary and compelling’ circumstances presented by

10 COVID-19 in the prison setting,” and evidence the warden “is processing request

11 for compassionate release based on COVID-19 at a pace that disregards the

12 seriousness of the risk faced by medically vulnerable inmates”).

13

Accordingly, the Court finds Petitioners demonstrate a likelihood of success

14 on their Eighth Amendment claims based on Respondents’ failure to make

15 meaningful use of the home confinement authority as expanded by the CARES

16 Act or compassionate release which takes into account Lompoc inmates’ risk for

17 severe illness or death from COVID-19. Alternatively, the Court finds there are

18 serious questions going to the merits of Petitioners’ Eighth Amendment claims

19 based on Respondents’ failure to promptly consider home confinement or

20 compassionate release of Lompoc inmates which takes into account inmates’ age

21 and medical conditions which place them at high risk for severe illness or death

22 from COVID-19.57 All. for the Wild Rockies, 632 F.3d at 1131.

23

(6) Irreparable Harm, Balance of Equities, and the Public Interest

24

Here, Petitioners face risk of irreparable harm to their health in light of

25

26 57 The balance of hardships tips sharply in Petitioners’ favor because Petitioners face significant risk of irreparable harm to their health and violation of their
27 constitutional rights if a TRO is not issued requiring an expedited process for considering home confinement or compassionate release of medically vulnerable
28 inmates in light of COVID-19. (See infra.)

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1 COVID-19 and the public interest is served to prevent violation of Petitioners’

2 Eighth Amendment rights. See Am. Beverage Ass’n v. City & Cty. of San

3 Francisco, 916 F.3d 749, 758 (9th Cir. 2019) (“[I]t is always in the public interest

4 to prevent the violation of a party’s constitutional rights.”); Wilson v. Williams,

5 2020 WL 3056217, at *11 (“district court correctly noted that inmates at Elkton

6 face a risk of irreparable injury if they are infected by COVID-19”); Castillo v.

7 Barr, 2020 WL 1502864, at *6 (C.D. Cal. Mar. 27, 2020) (finding the balance of

8 the equities tipped “sharply in favor of the Petitioners” because the civil detainee

9 petitioners face “irreparable harm to their constitutional rights and health” in light

10 of COVID-19 pandemic, and noting “there is no harm to the Government when a

11 court prevents the Government from engaging in unlawful practices”) (citing

12 Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013)); Martinez-Brooks,

13 2020 WL 2405350, at *28 (noting in granting TRO “aimed at accelerating the

14 process for evaluating inmates [at Danbury Federal Correctional Institution] for

15 home confinement and compassionate release, that “Petitioners’ interest in

16 avoiding serious illness or death must weigh heavily” and “the public interest is

17 best served by ensuring the constitutional rights of persons within the United

18 States are upheld”).

19

The Court is mindful of public safety concerns if inmates are released or

20 placed on home confinement, including concerns regarding increased criminal

21 activity. The Court does not order release of Petitioners here. Instead, the Court

22 orders Respondents to make a prompt determination of the eligibility of home

23 confinement and compassionate release as to Lompoc inmates who are at higher

24 risk for severe illness or death from COVID-19. The Court expects such

25 determinations by Respondents to include consideration of public safety and the

26 nature of Petitioners’ convictions, but due consideration should be given to an

27 inmate’s age and medical conditions in evaluating eligibility for home

28 confinement and compassionate release. See Martinez-Brooks, 2020 WL

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1 2405350, at *28 (noting “an assessment of the public interest also requires

2 individualized consideration of an inmate’s suitability for release, taking into

3 account the safety of the inmate, his or her family, and the public” and that the

4 injunction ordered “mandates such individualized consideration, albeit on a basis

5 more accelerated and more focused on the critical factors of inmate and public

6 safety than the current home confinement review process at FCI Danbury”).

7

Respondents also argue Petitioners have access to healthcare while

8 incarcerated but have not proven they will have access to medical care if released,

9 where Petitioners would reside, and whether Petitioners will have access to

10 medical care if placed on home confinement or released. Petitioners, however,

11 submit evidence of where each Petitioner would reside if placed on home

12 confinement (Carror Decl. ¶ 12; Perales Decl. ¶ 13; Zavala-Garcia Decl. ¶ 9;

13 Wefald Decl. ¶ 8; Zayed Fears Decl. ¶ 8), and submit evidence Carror-Torres,

14 Garcia, Brown, and Fears would have access to medical doctors familiar with their

15 medical history (Carror Decl. ¶ 12; Zavala-Garcia Decl. ¶ 9; Wefald Decl. ¶ 8;

16 Zayed Fears Decl. ¶ 8).58 Moreover, the Court’s order here does not prohibit

17 Respondents from taking into account the safety of inmates, their family, and the

18 public in determining the suitability for release, but rather orders Respondents to

19 prioritize inmates at high risk of severe illness or death from COVID-19 for

20 consideration of home confinement and compassionate release. See, e.g.,

21 Martinez-Brooks, 2020 WL 2405350, at *28 (“Respondents argue that an

22 assessment of the public interest also requires individualized consideration of an

23 inmate’s suitability for release, taking into account the safety of the inmate, his or

24 her family, and the public. I agree, and the order I issue today mandates such

25 individualized consideration, albeit on a basis more accelerated and more focused

26 on the critical factors of inmate and public safety than the current home

27 58 No information regarding Petitioner Reed’s access to medical care if he is
28 placed on home confinement was provided.

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1 confinement review process at FCI Danbury.”).

2

Accordingly, the Court finds the balance of equities and public interest tip

3 sharply in Petitioners’ favor for issuance of an order expediting the process for

4 determining inmates’ eligibility for home confinement or compassionate release

5 which takes into account inmates’ age and medical condition in light of COVID-

6 19. Alliance for the Wild Rockies, 632 F.3d at 1131.

7 F. Other Purported Grounds Barring Relief

8

(1) The PLRA’s Limitations To Court Prison Release Orders

9

Respondents argue judicial review of Petitioners’ claims are barred by the

10 PLRA.

11

18 U.S.C. § 3626(a)(3)(A) of the PLRA provides: “In any civil action with

12 respect to prison conditions, no court shall enter a prisoner release order unless ...

13 (i) a court has previously entered an order for less intrusive relief that has failed to

14 remedy the deprivation of the Federal right sought to be remedied... ; and (ii) the

15 defendant has had a reasonable amount of time to comply with the previous court

16 orders.” Id. It precludes prisoner release orders unless “entered [ ] by a three-

17 judge court.” Id. § 3626(a)(3)(B). Before entering such an order, the three-judge

18 panel must first find, by clear and convincing evidence, “(i) crowding is the

19 primary cause of the violation of a Federal right; and (ii) no other relief will

20 remedy the violation of the Federal right.” Id. § 3626(a)(3)(E). The PLRA

21 defines “prisoner release order” in expansive terms to include “any order ... that

22 has the purpose or effect of reducing or limiting the prison population, or that

23 directs the release from ... a prison.” Id. § 3626(g)(4). The PLRA’s limitations

24 “ensure that the ‘last resort remedy’ of a population limit is not imposed ‘as a first

25 step.’” Brown v. Plata, 563 U.S. 493, 514 (2011) (citation omitted).

26

A “civil action with respect to prison conditions” for purposes of the PLRA

27 means “any civil proceeding arising under Federal law with respect to the

28 conditions of confinement or the effects of actions by government officials on the

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1 lives of persons confined in prison, but does not include habeas corpus

2 proceedings challenging the fact or duration of confinement in prison.” 8 U.S.C. §

3 3626(g)(2). Therefore, the PLRA’s limitations regarding prison release orders do

4 not apply to habeas proceedings “challenging the fact or duration of confinement

5 in prison.” Id.; see also Nettles, 830 F.3d at 934 (prisoners must comply with the

6 PLRA if their claim challenges any “aspect of prison life” other than the “fact or

7 duration of the conviction or sentence”). Having found Petitioners assert a proper

8 habeas claim pursuant to § 2241 challenging the fact of their confinement, the

9 PLRA’s limitations regarding prison release orders do not apply here. See Wilson

10 v. Williams, 2020 WL 3056217, at *6 (“Because petitioners’ claims are properly

11 brought under § 2241, the BOP’s argument that the claims are foreclosed by the

12 PLRA fails. The PLRA does not apply in habeas proceedings.”) (citing 18 U.S.C.

13 § 3626(g)(2)).

14

(2) Exhaustion of Administrative Remedies

15

“The PLRA requires a prisoner to exhaust ‘available administrative

16 remedies’” before bringing an action with respect to prison conditions.” Williams

17 v. Paramo, 775 F.3d 1182, 1190-91 (9th Cir. 2015) (citing 42 U.S.C. § 1997e(a)).

18 A defendant may raise failure to exhaust administrative remedies as an affirmative

19 defense. Id. at 1191. A defendant “must first prove that there was an available

20 administrative remedy and that the prisoner did not exhaust that available remedy.

21 Then, the burden shifts to the plaintiff, who must show that there is something

22 particular in his case that made the existing and generally available administrative

23 remedies effectively unavailable to him by ‘showing that the local remedies were

24 ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.’” Id.

25

Respondents argue Petitioners have not exhausted their administrative

26 remedies such as through the traditional grievance process, and that Petitioners

27 can move for immediate release under 18 U.S.C. § 3582(c)(1)(A), request

28 compassionate release or a reduction in sentence under 18 U.S.C. §§ 3582 and

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1 4205(g), or request that the Warden respond to an emergency request within three

2 calendar days under 28 C.F.R. § 542.18. While the PLRA requires a prisoner to

3 exhaust “‘available administrative remedies’ before bringing an action with

4 respect to prison condition,” an administrative remedy is not available if “prison

5 officials inform the prisoner that he cannot file a grievance.” Id. Here, Petitioners

6 submit evidence Lompoc inmates were instructed by prison officials not to submit

7 grievances and requests for compassionate release because such grievances and

8 requests were not being accepted due to understaffing. (Lumpkin Decl. ¶ 46.)

9 Moreover, Petitioner Garcia has not received a response to his request for

10 compassionate release. Therefore, the Court finds Petitioners meet their burden of

11 showing exhaustion is excused because administrative remedies are not available.

12 See Paramo, 775 F.3d at 1191-92 (petitioner met her burden of production in

13 showing that administrative remedies were not available to her where she alleged

14 she first tried informing an officer about her claim but “he did not help her” and

15 told her it was “not [his] problem,” and she “attempted to file a grievance and an

16 appeal” with an officer “who rejected the grievance and refused to file the

17 appeal”); Martinez-Brooks, 2020 WL 2405350, at *19 (finding petitioners were

18 excused from exhaustion of their administrative remedies based on undue

19 prejudice from delay where the warden had considered only 159 inmates for home

20 confinement to date and had not addressed 44% of the compassionate release

21 requests, and petitioners “have shown that that they would likely suffer irreparable

22 harm if they were required to exhaust the administrative remedy process before

23 seeking relief in court” “[g]iven the rapid spread of COVID-19 at FCI Danbury, as

24 evidenced by the number of positive tests among inmates and staff to date”).59

25

(3) Mootness

26

Respondents also argue Plaintiffs’ motion for preliminary injunction is

27 59 See also Wilson v. Ponce, 2020 WL 3053375, at *11 (“The Court is satisfied
28 that exhaustion is met or excused here, for the reasons argued by Petitioners.”).

43

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1 moot as to Petitioners Brown and Fears because the BOP has considered their

2 place of confinement and they will be transferred to a different facility. The Court

3 finds Brown and Fears’ claims are not moot because they have not yet been

4 transferred and Respondents have not made a determination regarding home

5 confinement or compassionate release which takes into account Brown and Fears’

6 age and medical conditions in light of COVID-19.

7 G. Class Certification

8

Also pending before the Court is Petitioners’ Ex Parte Application for

9 Provisional Class Certification. (Dkt. No. 22.) Petitioners move for provisional

10 class certification in connection with their motion for a preliminary injunction

11 pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). Petitioners seek

12 provisional certification of the following class: “All current and future people in

13 post-conviction custody at FCI Lompoc and USP Lompoc.” However, Petitioners

14 state if the Court disagrees with the proposed class definition, Petitioners move for

15 the Court to redefine or modify the class definition.

16

The Court finds the proposed class definition is overly broad. The Court

17 therefore redefines the class as “all current and future people in post-conviction

18 custody at FCI Lompoc and USP Lompoc over the age of 50,60 and all current and

19 future people in post-conviction custody at FCI Lompoc and USP Lompoc of any

20 age with underlying health conditions including chronic obstructive pulmonary

21 disease; serious heart conditions such as heart failure, coronary artery disease, or

22 cardiomyopathies; Type 2 diabetes; chronic kidney disease; sickle cell disease;

23 immunocompromised state from a solid organ transplant; obesity (body mass

24 index of 30 or higher); asthma; cerebrovascular diseases; cystic fibrosis;

25 hypertension or high blood pressure; immunocompromised state from blood or

26 60 Petitioners’ medical expert declares inmates are generally in poorer health than
27 the general population and inmates over the age of 50 and inmates of any age with underlying health conditions are at higher risk for severe illness from COVID-19.
28 (Samra Decl. ¶ 8.)

44

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 45 of 50 Page ID #:1732

1 bone marrow transplant; immune deficiencies, HIV, or those who use

2 corticosteroids, or use other immune weakening medicines; neurologic conditions

3 such as dementia; liver diseases; pulmonary fibrosis; thalassemia; Type 1 diabetes;

4 and smokers.”61 See Wang v. Chinese Daily News, Inc., 737 F.3d 538, 546 (9th

5 Cir. 2013) (“Rule 23 provides district courts with broad authority … to redefine …

6 classes as appropriate.”). The Court now addresses the requirements for class

7 certification as to the redefined class.

8

(1) Rule 23(a)

9

For provision certification, Petitioners must satisfy the requirements of

10 Federal Rule of Civil Procedure 23(a): (1) numerosity; (2) commonality; (3)

11 typicality; and (4) adequacy of representation. Fed. R. Civ. P. 23(a).

12

Rule 23(a)’s numerosity requirement for class certification requires the

13 class to be “so numerous that joinder of all members is impracticable.” Fed. R.

14 Civ. Proc. 23(a). There are over 2,000 inmates currently incarcerated at Lompoc.

15 While there is no specific information regarding the number of Lompoc inmates in

16 the redefined class, Respondents state they do not contest the numerosity

17 requirement is met.62 Accordingly, the Court finds the class is so numerous that

18 joinder is impracticable, and therefore the numerosity requirement is met.

19

To satisfy the commonality requirement, there must be questions of law

20 and/or fact common to the class. Fed. R. Civ. P. 23(a)(2). To establish

21 commonality, Plaintiff need only point to a single common question to the class.

22 Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2556 (2011). The Court finds all

23 class members have been subjected to significant risk of exposure to COVID-19.

24 Common facts include the process by Respondents in considering Lompoc

25 61 See, e.g., Martinez-Brooks, 2020 WL 2405350, at *30-*31 (provisionally

26

certifying class of “medically vulnerable” prisoners with COVID-19 risk factors at FCI Danbury).

27 62 Although Respondents state that Petitioners’ class definition is overbroad, they do not contend that the numerosity requirement is not met, even as to a smaller
28 subset of Lompoc inmates.

45

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 46 of 50 Page ID #:1733

1 inmates for home confinement and compassionate release are common to the

2 entire putative class, and common questions exist as to whether Respondents’

3 failure to make prompt and meaningful use of home confinement and

4 compassionate release in light of the pandemic, and disregard of inmates’ age and

5 medical conditions in determining eligibility for home confinement and

6 compassionate release violate the Eighth Amendment. See, e.g., Martinez-Brooks,

7 2020 WL 2405350, at *30 (“I find that, as in Preiser, the claim as to which I now

8 grant preliminary relief—that the Warden’s implementation of her home

9 confinement and compassionate release authority violates the constitutional rights

10 of medically vulnerable inmates—is plainly “applicable on behalf of the entire

11 [subclass]” and “uncluttered by subsidiary issues.”). Accordingly, the Court finds

12 the commonality requirement is satisfied.63

13

“Claims are ‘typical’ if they are reasonably coextensive with those of absent

14 class members; they need not be substantially identical.” Hanlon v. Chrysler

15 Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). The Court finds Petitioners’ Carror-

16 Torres, Brown, Reed, and Fears’ claims are typical of the class because Petitioners

17 are currently incarcerated at Lompoc, have been subject to substantial risk of

18 exposure to COVID-19, have higher risk of severe illness or death from COVID-

19 19 based on their age and/or underlying medical conditions,64 and challenge the

20 63 Respondents argue that individualized issues preclude certification because

21

“there is no way to decide which inmates should stay and which inmates should go, without diving into an inmate specific inquiry.” However, the inquiry is

22

whether Respondents’ existing process with respect to home confinement and compassionate release, as applied to medically vulnerable inmates, “amounts to

23

deliberate indifference.” Martinez-Brooks, 2020 WL 2405350, at *30. Respondents also argue each inmate “presents a different risk profile for COVID-

24

19 based on age and preexisting conditions,” which precludes class certification. However, “while members of the putative class [as redefined by the Court] may

25

vary in terms of the severity of their COVID-19 risk factors, all are recognized as falling in the high-risk group as to which heightened precautions are justified.”

26

Martinez-Brooks, 2020 WL 2405350, at *30-*31. Accordingly, the Court finds individualized inquiries do not preclude provisional certification at this stage.

27 64 The record before the Court does not demonstrate Petitioner Garcia has an underlying health condition placing him at higher risk for severe illness or death
28 from COVID-19.

46

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 47 of 50 Page ID #:1734

1 same process regarding Respondents’ failure to make prompt and meaningful use

2 of home confinement and compassionate release. See, e.g., Martinez-Brooks,

3 2020 WL 2405350, at *30-*31 (finding typicality requirement was similarly

4 satisfied because “the process at issue is applicable to all inmates” and “each

5 member’s claim arises from the same course of events—the establishment and

6 operation of this process [regarding home confinement and compassionate

7 release]— and each class member makes similar legal arguments to prove the

8 defendant’s liability.”) (internal quotations and citation omitted). Accordingly, the

9 Court finds that with the exception of Petitioner Garcia, the typicality requirement

10 is satisfied.

11

To satisfy the adequacy of representation requirement, Petitioners must

12 show (1) that the putative named plaintiffs have the ability and the incentive to

13 represent the claims of the class vigorously; (2) that the named plaintiffs have

14 obtained adequate counsel, and (3) that there is no conflict between the named

15 plaintiffs’ claims and those asserted on behalf of the class. Lerwill v. Inflight

16 Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978). Petitioners submit

17 evidence of their counsel’s experience litigating class actions and complex cases,

18 including cases on behalf of prisoners. Respondents do not challenge the

19 adequacy of Petitioners’ counsel. Moreover, there is no conflict between

20 Petitioners and members of the class. Petitioners have confirmed their willingness

21 to be a named plaintiff in this action. (See Carror Decl. ¶ 3; Perales Decl. ¶ 4;

22 Zavala-Garcia Decl. ¶ 3; Wefald Decl. ¶ 1; Zayed Fears Decl. ¶ 3.) Therefore, the

23 Court finds the adequacy requirement is met.

24

(2) Rule 23(b)(2)

25

Federal Rule of Civil Procedure 23(b)(2) provides that a class action may be

26 maintained if Rule 23(a)’s numerosity, commonality, typicality, and adequacy

27 requirements are met, and if “the party opposing the class has acted or refused to

28 act on grounds that apply generally to the class, so that final injunctive relief or

47

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 48 of 50 Page ID #:1735

1 corresponding declaratory relief is appropriate respecting the class as a whole.”

2 Here, Respondents’ failure to make prompt and reasonable use of home

3 confinement and compassionate release in light of the pandemic which takes into

4 account inmates’ age and medical conditions is applicable to each member of the

5 class so that injunctive relief is appropriate as to the class as a whole Accordingly,

6 the Court finds Rule 23(b)(2) is satisfied.

7

IV. CONCLUSION

8

Accordingly, the Court GRANTS Petitioners’ Motion for Preliminary

9 Injunction and Ex Parte Application for Provisional Class Certification as follows:

10

1. The Court certifies, on a provisional basis, a class defined as “all

11

current and future people in post-conviction custody at FCI Lompoc

12

and USP Lompoc over the age of 50, and all current and future people in post-conviction custody at FCI Lompoc and USP Lompoc

13

of any age with underlying health conditions, including chronic

14

obstructive pulmonary disease; serious heart conditions such as heart failure, coronary artery disease, or cardiomyopathies; Type 2

15

diabetes; chronic kidney disease; sickle cell disease;

16

immunocompromised state from a solid organ transplant; obesity (body mass index of 30 or higher); asthma; cerebrovascular diseases;

17

cystic fibrosis; hypertension or high blood pressure;

18

immunocompromised state from blood or bone marrow transplant; immune deficiencies, HIV, or those who use corticosteroids, or use

19

other immune weakening medicines; neurologic conditions such as

20

dementia; liver diseases; pulmonary fibrosis; thalassemia; Type 1 diabetes; and smokers (hereinafter, “Underlying Health

21

Conditions”)”;

22

2. No later than July 20, 2020, Respondents shall file under seal a list

23

with the Court which: (a) identifies all members of the class defined

in this Order; (b) identifies each class member’s sentencing court and

24

the criminal case number; and (c) identifies whether the class

25

member has (i) submitted a request for compassionate release, and if

so whether a decision has been made as to the request, and (ii) been

26

reviewed for home confinement since March 26, 2020, and if so,

27

whether the inmate has been designated for home confinement;

28

3. No later than July 22, 2020, Respondents shall file a declaration

48

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 49 of 50 Page ID #:1736

1

2

3

4.

4

5

6

7

5.

8

9

10

11

6.

12

13

14

15 7.
16

17

18

19

8.

20

21

22

23

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

setting forth the process used to identify the class members in the list filed;
No later than July 22, 2020, notify inmates that they are being considered for home confinement and institute a process, including free telephone calls or emails to their families so that inmates can provide Respondents with a plan for release to home confinement, which includes any information about their ability to quarantine for 14 days upon release;
No later than July 28, 2020, Respondents shall make full and speedy use of their authority under the CARES Act and evaluate each class member’s eligibility for home confinement which gives substantial weight to the inmate’s risk factors for severe illness or death from COVID-19 based on age (over 50) or Underlying Health Conditions;
No later than July 29, 2020, Respondents shall file under seal a declaration setting forth a list of class members whom Respondents have determined are eligible for home confinement, and an explanation for each denial of home confinement of any class member, including an explanation of the factual basis for any factors determined to outweigh the danger to the inmate from COVID-19;
No later than July 22, 2020, file a declaration setting forth criteria for compassionate release which takes into account COVID-19, and an explanation if no such criteria for compassionate release exists which takes into account COVID-19 as to Lompoc inmates; and
No later than August 3, 2020, for any Lompoc inmate who has made a written request for compassionate release based on COVID19 but has not received a decision, Respondents shall provide written notice of either (a) a referral of the matter in writing with recommendation of approval of the request pursuant to 28 C.F.R. § 571.62, or (b) a denial of the request and copy of the applicable appeal form pursuant to 28 C.F.R. §§ 571.63, 542.15.
49

Case 2:20-cv-04450-CBM-PVC Document 45 Filed 07/14/20 Page 50 of 50 Page ID #:1737

1

The Court further orders the parties to meet and confer no later than July

2 17, 2020 regarding arrangements for a site visit of Lompoc and a process in which

3 Petitioners’ counsel can confidentially communicate with Petitioners and class

4 members, and file a joint status report re same no later than July 20, 2020.

5

6

IT IS SO ORDERED.

7

8 DATED: July 14, 2020. 9 10

CONSUELO B. MARSHALL UNITED STATES DISTRICT JUDGE

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

50

 Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 1 of 33 Page ID #:1738

1 Terry W. Bird – Bar No. 49038

Peter J. Eliasberg – Bar No. 189110

tbird@birdmarella.com

peliasberg@aclusocal.org

2 Dorothy Wolpert – Bar No. 73213

Peter Bibring – Bar No. 223981

dwolpert@birdmarella.com

pbibring@aclusocal.org

3 *Naeun Rim – Bar No. 263558

ACLU FOUNDATION OF

nrim@birdmarella.com

SOUTHERN CALIFORNIA

4 Shoshana E. Bannett – Bar No. 241977 1313 West 8th Street

sbannett@birdmarella.com

Los Angeles, CA 90017

5 Kate S. Shin – Bar No. 279867

Telephone: (213) 977-9500

kshin@birdmarella.com

Facsimile: (213) 977-5297

6 Oliver Rocos – Bar No. 319059

orocos@birdmarella.com

Donald Specter – Bar No. 83925

7 Christopher J. Lee – Bar No. 322140

dspecter@prisonlaw.com

clee@birdmarella.com

Sara Norman – Bar No. 189536

8 Jimmy Threatt – Bar No. 325317

snorman@prisonlaw.com

jthreatt@birdmarella.com

PRISON LAW OFFICE

9 BIRD, MARELLA, BOXER,

1917 Fifth Street

WOLPERT, NESSIM, DROOKS,

Berkeley, California 94710

10 LINCENBERG & RHOW, P.C. 1875 Century Park East, 23rd Floor

Telephone: (510) 280-2621 Facsimile: (510) 280-2704

11 Los Angeles, California 90067-2561

Telephone: (310) 201-2100

12 Facsimile: (310) 201-2110

13 Attorneys for Plaintiff-Petitioners

14

15

UNITED STATES DISTRICT COURT

16

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

17 YONNEDIL CARROR TORRES;

18

VINCENT REED; FELIX SAMUEL GARCIA; ANDRE BROWN; and

19

SHAWN L. FEARS, individually and on behalf of all others similarly situated,

20

Plaintiff-Petitioners,

CASE NO. 2:20-cv-04450-CBM-PVCx PLAINTIFF-PETITIONERS’ OPPOSITION TO RESPONDENTS’ MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(1) AND 12(b)(6)

21

vs.

22 LOUIS MILUSNIC, in his capacity as

23

Warden of Lompoc; and MICHAEL CARVAJAL, in his capacity as Director

24 of the Bureau of Prisons,

25

Defendant-Respondents.

Hearing Date: August 4, 2020 Hearing Time: 10:00 a.m. Courtroom: 8B Assigned to Hon. Consuelo B. Marshall Courtroom 8B

26

27

28

OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 2 of 33 Page ID #:1739

1 2 3 I. 4 II. 5 III. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
IV. 21 22 23 24 25 26 27 28

TABLE OF CONTENTS Page
INTRODUCTION ............................................................................................. 1 LEGAL STANDARD ....................................................................................... 2 ARGUMENT .................................................................................................... 3 A. This Court Already Has Rejected Respondents’ Arguments ................. 3 B. Petitioners Are Entitled To Their Requested Relief Through A
Habeas Claim .......................................................................................... 5 1. This Court Has Jurisdiction Over Petitioners’ Habeas
Claim............................................................................................. 5 2. This Court Has Authority To Grant The Requested Relief.......... 7 3. Respondents’ Own Actions Warrant The Waiver Of The
Exhaustion Of Administrative Remedies ................................... 12 C. Petitioners Have Properly Alleged A Direct Claim For Injunctive
And Declaratory Relief Under The Eighth Amendment ...................... 15 1. Petitioners Have Sufficiently Alleged Respondents’
Deliberate Indifference ............................................................... 15 a. Petitioners Have Alleged They Are Subject To An
Objective, Substantial Risk Of Serious Harm.................. 15 b. Respondents’ Response To The Outbreak
Demonstrates Their Subjective Deliberate Indifference....................................................................... 18 2. Petitioners Have Sufficiently Pled Exhaustion Of Administrative Remedies............................................................ 24 CONCLUSION ............................................................................................... 25

i
OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 3 of 33 Page ID #:1740

1 2 3 4 Cases

TABLE OF AUTHORITIES

Page(s)

5 Ashcroft v. Iqbal 6 556 U.S. 662 (2009) ............................................................................................. 2

7 Avery v. Paramo 2015 WL 4923820 (S.D. Cal. Aug. 18, 2015)....................................................24
8

9

Badea v. Cox 931 F.2d 573 (9th Cir. 1991) ................................................................................ 5

10 Basank v. Decker
11 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020)....................................................17

12 Brown v. Plata 13 563 U.S. 493 (2011) ............................................................................................. 9

14 Calderon v. Barr 15 2020 WL 2394287 (E.D. Cal. May 12, 2020) ...................................................... 6

16 Cameron v. Bouchard

17

2020 WL 2569868 (E.D. Mich., May 21, 2020) (reversed on other grounds) ...................................................................................................... 6, 7, 12

18 Chunn v. Edge
19 2020 WL 3055669 (E.D.N.Y. June 9, 2020)................................................22, 23

20 Crawford v. Bell
21 599 F.2d 890 (9th Cir. 1979) ................................................................................ 5

22 Estelle v. Gamble 23 429 U.S. 97 (1976) ............................................................................................. 15

24 Farmer v. Brennan 25 511 U.S. 825 ............................................................................................. 9, 15, 18

26 Fraihat v. U.S. Immigration and Customs Enforcement 2020 WL 1932570 (C.D. Cal. April 20, 2020)................................................... 17
27

28

ii
OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 4 of 33 Page ID #:1741

1 Gonzalez v. Arizona 2 677 F.3d 383 (9th Cir. 2012) (en banc) ................................................................ 4

3 Grinis v. Spaulding 2020 WL 2300313 (D. Mass. May 8, 2020) ...................................................... 23
4

5

Helling v. McKinney 509 U.S. 25 (1993) ....................................................................................... 15, 16

6 Hernandez v. Campbell
7 204 F.3d 861 (9th Cir. 2000) ................................................................................ 5

8 Hernandez v. County of Monterey 9 110 F. Supp. 3d 929 (N.D. Cal. 2015)................................................................21

10 Hernandez v. Sessions 11 872 F.3d 976 (9th Cir. 2017) .............................................................................. 12

12 Jeffries v. Block 13 940 F. Supp. 1509 (C.D. Cal. 1996)...................................................................16

14 Jolly v. Coughlin 76 F.3d 468 (2d Cir. 1996) ................................................................................. 16
15

16

Jones v. Bock 549 U.S. 199 (2007) ........................................................................................... 25

17

Laing v. Ashcroft 18 370 F.3d 994 (9th Cir. 2004) .............................................................................. 12

19 Livas v. Meyers
20 2020 WL 1939583 (W.D. La., Apr. 22, 2020) ..................................................... 8

21 Martinez-Brooks v. Easter 22 2020 WL 2405350 (D. Conn. May 12, 2020) ...................................... 6, 7, 11, 17

23 Mills v. Schnier 24 2010 WL 55504 (C.D. Cal., Jan. 7, 2010)............................................................ 5

25 Navarro v. Block 250 F.3d 729 (9th Cir. 2001) ................................................................................ 2
26
27 Nunez v. Duncan 591 F.3d 1217 (9th Cir. 2010) ............................................................................ 24
28

iii
OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 5 of 33 Page ID #:1742

1 Plata v. Newsom 2 2020 WL 1908776 (N.D. Cal. Apr. 17, 2020)...................................................... 5

3 Preiser v. Rodriguez 411 U.S. 475 (1973) ............................................................................................. 5
4

5

Roberts v. Corrothers 812 F.2d 1173 (9th Cir. 1987) .............................................................................. 2

6 Ross v. Blake
7 136 S. Ct. 1850 (2016)........................................................................................ 24

8 Sapp v. Kimbrell 9 623 F.3d 813 (9th Cir. 2010) .............................................................................. 24

10 Swain v. Junior 11 2020 WL 3167628 (11th Cir. Jun. 15, 2020) ..................................................... 17

12 Tellabs, Inc. v. Makor Issues & Rights, Ltd. 13 551 U.S. 308 (2007) ............................................................................................. 2

14 U.S. v. Ritchie 342 F.3d 903 (9th Cir. 2003) ............................................................................... 2
15

16

United States v. Connell 2020 WL 2315858 (N.D. Cal. May 8, 2020) ..................................... 1, 14, 17, 23

17

United States v. Pippin 18 2020 WL 2602140 (W.D. Washington May 20, 2020)............................1, 14, 17

19 Valentine v. Collier
20 140 S. Ct. 1598 (2020)............................................................................14, 22, 25

21 White v. Lee 22 227 F.3d 1214 (9th Cir. 2000) .............................................................................. 2

23 Wilson v. Williams 24 961 F.3d 829 (6th Cir. 2020) ............................................................................ 5, 6

25 Statutes

26 18 U.S.C. § 3626(g)(2) .............................................................................................. 6

27 28 U.S.C.§ 2241...........................................................................................5, 6, 7, 12 28

iv
OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 6 of 33 Page ID #:1743
1 28 U.S. C. § 2243.................................................................................................9, 12 2 42 U.S.C. § 1997e(a) ............................................................................................... 24 3 Other Authorities 4
Federal Rule of Evidence 201.................................................................................. 13 5 6 Rule 12(b)(1)..............................................................................................................2 7 Rule 12(b)(6)..............................................................................................................2 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
v
OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 7 of 33 Page ID #:1744

1 I. INTRODUCTION

2

FCI Lompoc is in the midst of a “catastrophic COVID-19 outbreak” that

3 places prisoners’ lives “in jeopardy.” United States v. Pippin, 2020 WL 2602140 at

4 * 2 (W.D. Washington May 20, 2020). So “dire” is the situation at FCI Lompoc,

5 that it is one of “worst coronavirus hotspots in the nation.” United States v. Connell,

6 2020 WL 2315858 at *6 (N.D. Cal. May 8, 2020). In order to obtain swift relief

7 from those conditions, on June 1, 2020, Petitioners moved for a preliminary

8 injunction.1 The briefing for that motion was extensive, comprising over 160 pages

9 of argument and 630 pages of declarations and exhibits in addition to the extensive

10 complaint. Ignoring that briefing, and the fact that this court scheduled oral

11 argument, on July 2, 2020 Respondents moved to dismiss Petitioners’ complaint

12 based on materially identical arguments. The very filing of this motion evidences

13 their refusal to acknowledge the scale of the crisis at Lompoc, their deliberate

14 indifference to Petitioners’ suffering, and an intent to tangle Petitioners in

15 procedural delay, rather than focusing on actually improving conditions within the

16 walls of Lompoc.2

17

On July 14, 2020, the Court granted Petitioners’ motion for a preliminary

18 injunction, rejecting Respondents’ arguments asserted in that motion and in their

19 motion to dismiss. (Dkt. 45 [Order].) In particular, this Court held that it had

20

21 1 Petitioners’ motion originally was styled as an application for a temporary
22 restraining order, but was converted into a motion for a preliminary injunction on July 9, 2020, with the consent of the parties. (Dkt. 44.)
23
24 2 While Respondents have found time to file this repetitive motion, they have repeatedly delayed and cancelled Petitioners’ requests to meet and confer on
25 discovery. While Respondents claim they have produced thousands of pages of
26 discovery, they fail to note that the discovery produced thus far has been limited to general BOP policies and memoranda and the medical records of the named
27 petitioners. Respondents’ bad faith strategy of delay only serves to prolong the
28 ongoing constitutional violations and should be rejected.

1
OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 8 of 33 Page ID #:1745

1 jurisdiction over Petitioners’ habeas claim, that it had authority to grant the relief

2 requested, that Petitioners face a substantial risk of harm at Lompoc, that

3 Respondents are deliberately indifferent to that harm, and that Respondents’ own

4 actions excuse Petitioners from having to exhaust administrative remedies before

5 seeking judicial relief. (Id.) Having necessarily rejected Respondents’ arguments

6 made in connection with the preliminary injunction, this Court should reject

7 Respondents’ identical arguments made in their motion to dismiss.

8 II. LEGAL STANDARD

9

A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a

10 claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The complaint must

11 be “plausible on its face” such that the Court can “draw the reasonable inference that

12 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

13 678 (2009). In considering a motion to dismiss, the court must accept all non-

14 conclusory allegations in the complaint as true and draw all reasonable inferences in

15 plaintiff’s favor. Id. The court also must consider those facts contained in

16 “documents incorporated into the complaint by reference,” as well as matters of

17 which a court may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

18 551 U.S. 308, 322 (2007); see also U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)

19 (a court may consider “documents attached to the complaint, documents

20 incorporated by reference in the complaint, or matters of judicial notice” when

21 deciding a motion to dismiss).

22

In contrast to a motion under Rule 12(b)(6), a motion to dismiss for lack of

23 jurisdiction under Rule 12(b)(1) may be made either on the face of the pleadings or

24 by presenting extrinsic evidence. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).

25 Where, however, jurisdiction is dependent upon the merits, a court must “assume

26 the truth of allegations in a complaint or habeas petition, unless controverted by

27 undisputed facts in the record.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th

28 Cir. 1987).

2
OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 9 of 33 Page ID #:1746

1 III. ARGUMENT

2

A. This Court Already Has Rejected Respondents’ Arguments

3

Respondents filed this motion after the parties had fully briefed Petitioners’

4 motion for a preliminary injunction, but before it had been decided.3 Since the

5 arguments Respondents make in this motion are materially identical to those made

6 in opposition to Petitioners’ motion for a preliminary injunction, this motion was

7 substantively duplicative and unnecessary.4

8

On July 14, 2020, this Court granted Petitioners a preliminary injunction

9 pursuant to their habeas claim, having found that it had jurisdiction over that claim,

10 that Petitioners are subject to a substantial risk of serious harm, that Respondents

11 have been deliberately indifferent to that risk of harm, and that Petitioners have met

12 their burden of showing that exhaustion of administrative remedies is excused under

13 the circumstances alleged in the Complaint. (Dkt. 45 [Order].) Specifically, this

14 Court found that Petitioners had shown a likelihood of success on their claims

15 because, among other things:

16

• The Court has jurisdiction over Petitioners’ habeas claim. (Id. at 14

17

(“Because Petitioners contend there are no set of conditions of confinement that could be constitutional, the Court finds Petitioners

18

challenge the fact of their confinement.”).)

19

• The Court has authority to order Respondents to review prisoners at

20

Lompoc for eligibility for home confinement and compassionate

release. (Id. at 39 (“The Court orders Respondents to make a prompt

21

determination of the eligibility of home confinement and

22

23 3 At the Court’s invitation, Respondents continued to file additional materials even 24 after the July 7, 2020 oral argument on Petitioners’ preliminary injunction motion.

25 4 See Dkt. 18 at 42-61; Dkt. 25 at 45-50, 55-59; Dkt. 32 at 10-23, 29-30
26 (Respondents’ and Petitioners’ materially identical arguments related to Petitioners’ habeas claim); Dkt. 18 at 42-59; Dkt. 25 at 51-59; Dkt. 32 at 15-23, 29-30
27 (Respondents and Petitioners’ materially identical arguments with respect to
28 Petitioners’ conditions of confinement claim).

3
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1

compassionate release as to Lompoc inmates who are at higher risk for

2

severe illness or death from COVID-19.”).)

3

• At this preliminary stage, Petitioners have shown they are subject to a

substantial risk of serious harm. (Id. at 18 (“Accordingly, Petitioners

4

show they are at substantial risk of exposure to COVID-19, which is

5

inconsistent with contemporary standards of human decency.”).)

6

• At this preliminary stage, Petitioners have shown Respondents are

7

deliberately indifferent to Petitioners’ risk of substantial harm. (Id. at

34 (“the evidence demonstrates Respondents have ignored, and

8

therefore have likely been deliberately indifferent, to the known

9

urgency to consider inmates for home confinement, particularly those

most vulnerable to severe illness or death if they contract COVID-19,

10

in failing to make prompt and meaningful use of home confinement and

11

disregarding inmates’ age and medical conditions in determining

eligibility for home confinement”; see also id. at 37-38 (“Respondents’

12

failure to take reasonable measures to promptly review and grant

13

requests for compassionate release or move for compassionate release

on behalf of Lompoc inmates to reduce the inmate population at

14

Lompoc further demonstrates Respondents’ deliberate indifference to

15

inmates’ risk of severe illness or death from COVID-19.”).)

16

• Petitioners have shown that the requirement to exhaust administrative

17

remedies should be waived. (Id. at 43 (“[T]he Court finds Petitioners meet their burden of showing exhaustion is excused because

18

administrative remedies are not available.”).)

19

Since this Court granted a preliminary injunction over Respondents’

20 arguments that are substantively identical to those contained in their motion to

21 dismiss, the motion must be denied. Gonzalez v. Arizona, 677 F.3d 383, 390 fn. 4

22 (9th Cir. 2012) (en banc) (“Under the law of the case doctrine, a court will generally

23 refuse to reconsider an issue that has already been decided by the same court or a

24 higher court in the same case.”). As this is a motion to dismiss, Respondents plainly

25 cannot—and do not—offer any evidence that could warrant a different result.

26

Notwithstanding the above, and for the sake of completeness, Petitioners

27

28

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1 respond substantively to Respondents motion as follows.5

2

B. Petitioners Are Entitled To Their Requested Relief Through A

3

Habeas Claim

4

1. This Court Has Jurisdiction Over Petitioners’ Habeas Claim

5

Ninth Circuit precedent provides that a habeas corpus petition brought

6 pursuant to Section 2241 is the proper vehicle by which a federal prisoner can

7 challenge “the fact or duration of his confinement.” Preiser v. Rodriguez, 411 U.S.

8 475, 498–99 (1973). Put another way, where a prisoner “challenge[s] the manner,

9 location, or conditions of a sentence’s execution,” it is appropriate to do so pursuant

10 to Section 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000)

11 (citations omitted).

12

Applying the law in this way, courts across the country have held that

13 Petitioners have properly stated a claim for relief under section 2241 where they

14 assert that release is the only remedy to unconstitutional conditions of confinement.6

15 See, e.g., Wilson v. Williams, 961 F.3d 829, 837 (6th Cir. 2020) (“To the extent

16 petitioners argue the alleged unconstitutional conditions of their confinement can be

17 remedied only by release, 28 U.S.C. § 2241 conferred upon the district court

18

19 5 Petitioners incorporate herein by reference those arguments made with respect to 20 the preliminary injunction and expressly do not waive any of them.

21 6 None of the four decisions Respondent cite from within the Ninth Circuit support
22 their position that Petitioners cannot assert a habeas claim in these circumstances. Plata v. Newsom, 2020 WL 1908776 (N.D. Cal. Apr. 17, 2020), did not concern a
23 habeas petition at all. Unlike Petitioners, the plaintiff in Crawford v. Bell, 599 F.2d
24 890, 891 (9th Cir. 1979), “d[id] not challenge the legality of his imprisonment” on the basis that the conditions of his confinement were unconstitutional. The court in
25 Badea v. Cox, 931 F.2d 573, 574-75 (9th Cir. 1991), did not resolve the disputed
26 issue of whether the plaintiff could assert his claim under section 2441, but instead dismissed the appeal as moot. Finally, in Mills v. Schnier, 2010 WL 55504, at *1
27 (C.D. Cal., Jan. 7, 2010), the plaintiff’s claim was summarily dismissed on the basis
28 he had not exhausted administrative remedies.

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1 jurisdiction to consider the petition.”); Martinez-Brooks, 2020 WL 2405350, at *16–

2 17 (concluding that a habeas petition similar to Petitioners’ that sought release on

3 behalf of a class of medically vulnerable prisoners was properly brought under

4 section 2241 because it challenged “the fact or duration of confinement” by

5 claiming that “no constitutional conditions of confinement are possible under the

6 circumstances”); Cameron v. Bouchard, 2020 WL 2569868, *13 (E.D. Mich., May

7 21, 2020) (reversed on other grounds) (habeas petition proper basis for relief where

8 petitioners challenged fact of confinement by claiming no set of conditions would be

9 constitutionally sufficient); Calderon v. Barr, 2020 WL 2394287, at *2 (E.D. Cal.

10 May 12, 2020) (“[t]he vast majority of cases in the lower courts dealing with the

11 COVID-19 pandemic as it affects detention facilities more or less assume

12 jurisdiction is appropriate under [section 2241]).” As a habeas petition, this claim is

13 not subject to the Prison Litigation Reform Act (“PLRA”) and its procedural

14 hurdles. See 18 U.S.C. § 3626(g)(2) (PLRA “does not include habeas corpus

15 proceedings challenging the fact or duration of confinement in prison”).

16

In this action, just as in Wilson, Martinez-Brooks, and Cameron, Petitioners

17 are alleging that the conditions of confinement at Lompoc are so unconstitutional

18 that the only remedy for the constitutional violation would be to change the place of

19 confinement of at least some petitioners, particularly those who are medically

20 vulnerable.7 (Dkt. 16 [Compl.] at ¶ 110 (“Petitioners contend that the fact of their

21 confinement in prison itself amounts to an Eighth Amendment violation under these

22 circumstances, and nothing short of an order ending their confinement at Lompoc

23

24 7 As explained during the July 7, 2020 hearing, habeas relief can be granted in the 25 form of a release from the current conditions of confinement, as opposed to the
26 release from custody entirely. See also Wilson, 961 F.3d at 838-39 (habeas relief could not include order transferring prisoners from one BOP facility to another, but
27 could include ordering evaluation of prisoners’ eligibility for transfer outside of
28 BOP facilities, including to home confinement).

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1 will alleviate that violation.”).) This amounts to a constitutional challenge to the

2 fact of confinement itself, bringing the remedy sought within the Court’s authority

3 to provide habeas relief under section 2241. Respondents’ refusal to make

4 reasonable use of their statutory authority to temporarily transfer the custody of as

5 many non-violent prisoners with release plans to home confinement as possible and

6 accelerate their compassionate release determinations in order to reduce prison

7 density has exacerbated life threatening conditions at Lompoc and prevented proper

8 sanitation and social distancing to such a degree that nothing short of removal from

9 confinement will remedy the constitutional violation. Accordingly, this Court has

10 jurisdiction over Petitioners’ habeas claim.8

11

2. This Court Has Authority To Grant The Requested Relief

12

The relief Petitioners seek through their habeas claim is not the judicial grant

13 of home confinement or compassionate release, nor is it the judicial evaluation of

14 every individual prisoner at Lompoc for such relief. Instead, Petitioners seek an

15 order requiring Respondents to comply with the Eighth Amendment by exercising

16 their authority under the CARES Act, the First Step Act, and the Attorney General’s

17 April 3, 2020 Memorandum (the “April 3 Memo”) to determine each prisoner’s

18 suitability for release on an accelerated schedule based primarily on public health

19 and safety factors. Specifically, Petitioners seek “a highly expedited process—for

20 completion within no more than 48 hours—for [BOP] to use procedures available

21 under the law to review members of the Class for enlargement of custody . . . in

22

23 8 On June 8, 2020, the Honorable Michael W. Fitzgerald of the Central District of 24 California departed from Martinez-Brooks, Cameron, and the Sixth Circuit, and
held, in an action materially similar to this one, that the remedy Petitioners seek is 25 unavailable in a habeas petition. (Dkt. 28-1.) Respectfully, that ruling is not 26 binding on this Court, and Judge Fitzgerald certified his decision for immediate
appeal on the basis that there “is substantial ground for difference of opinion, to say 27 the least,” on that issue. (Id. at 21.)
28

7
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1 order to reduce the density of the prison population to a number that allows for the

2 implementation of appropriate measures to prevent the spread of COVID-19.” (Dkt.

3 16 [Compl.] at 46:13-19.)

4

As they did in their opposition to the TRO, Respondents have ignored the

5 plain words of Petitioners’ complaint and misrepresented the relief sought in order

6 to make it appear as if this Court is powerless to cure a violation of the Eighth

7 Amendment.9 (Dkt. 36 [Mot.] at 7:18-23 (claiming “[t]he BOP has sole discretion

8 over inmate placement decisions” and that such decisions are not “subject to judicial

9 review”).) This mischaracterization of the relief Petitioners seek should be

10 disregarded. Since Respondents do not even address the relief Petitioners actually

11 seek, Respondents’ motion plainly cannot succeed on the basis that this Court lacks

12 authority to grant it. Moreover, Respondents are wrong to suggest that the Court

13 cannot review a BOP placement decision if that designation itself violates the Eighth

14 Amendment—the cases Respondents cite merely stand for the fact that the Court has

15 no statutory authority to review a BOP placement decision, not that the Court cannot

16 review placement decisions in an Eighth Amendment challenge to BOP

17 designation.10 If the placement decision itself would amount to cruel and unusual

18 punishment, the Court not only has the authority to address the constitutional

19 violation, but it must do so and employ its equitable powers to provide what relief is

20

21 9 Respondents asserted in opposition to the TRO that Petitioners were “asking the
22 Court to release or transfer to home confinement convicted criminals and to oversee the running of FCC Lompoc” by installing itself “as ‘a de facto ‘super’ warden’”
23 that will “usurp executive functions entrusted to the BOP by Congress.” (Dkt. 25 at
24 4:5-11.) Petitioners extensively debunked this claim in their reply in support of the TRO. (Dkt. 32 at 10:16-12:5.)
25
26 10 The court in Livas v. Meyers, 2020 WL 1939583 at *8 (W.D. La., Apr. 22, 2020) did consider a situation in which plaintiffs challenged the BOP’s placement decision
27 on the basis they violated the Eighth Amendment, but dismissed that claim on the
28 basis it lacked jurisdiction to adjudicate it.

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1 possible. Indeed, the seminal case on the standard for deliberate indifference,

2 Farmer v. Brennan, 511 U.S. 825, 830-31(1994), involved a transgender prisoner’s

3 challenge to being designated to a United States Penitentiary, where she was more

4 likely to be subject to violence and rape. Far from holding that courts could not

5 review prison designation decisions, the Court instead reversed the appellate court’s

6 decision affirming the district court’s granting of summary judgment in favor of

7 prison officials and remanded the case for further proceedings, clearly signaling that

8 it was possible for the designation to amount to an Eighth Amendment violation. Id.

9 at 848-49.

10

Even assuming, arguendo, that Respondents had accurately characterized the

11 relief Petitioners seek, their argument would still fail. The Supreme Court has held

12 that where the “government fails to fulfill [its] obligation [to provide adequate

13 medical care], the courts have a responsibility to remedy the resulting Eighth

14 Amendment violation.” Brown v. Plata, 563 U.S. 493, 511 (2011) (emphasis

15 added). While Courts should be sensitive to principles of federalism and separation

16 of powers and give the BOP some deference, courts “nevertheless must not shrink

17 from their obligation to enforce the constitutional rights of all persons, including

18 prisoners.” Id. (quotations, citations omitted). In short, courts “may not allow

19 constitutional violations to continue simply because a remedy would involve

20 intrusion into the realm of prison administration.” Id. (quotations, citations

21 omitted).

22

When, as here, the Eighth Amendment violation is brought before a court by

23 way of habeas petition, section 2243 grants the court broad discretion and authority

24 to “summarily hear and determine the facts and dispose of the matter as law and

25 justice require.” 28 U.S.C. § 2243 (emphasis added). An order requiring

26 Respondents to exercise their discretion and consider non-violent prisoners with

27 viable release plans for home confinement and accelerate compassionate release

28 decisions, consistent with the laws and directives of Congress and the Attorney

9
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1 General, plainly falls within those broad remedial powers.

2

As set out in the Complaint, Attorney General Barr’s March 26, 2020

3 Memorandum directed Respondents to use their powers to transfer appropriate

4 inmates to home confinement in order to reduce the density of overcrowded prisons

5 known to have medically vulnerable prisoners.11 (Dkt. 16 [Compl.] at ¶¶ 5, 75-76.)

6 The March 27, 2020 CARES Act was intended to streamline that process, and the

7 Attorney General’s April 3 Memo more explicitly directed the BOP to “immediately

8 maximize appropriate transfers to home confinement of all appropriate inmates,”

9 specifically stating that those eligible for review for home confinement included “all

10 at-risk inmates—not only those who were previously eligible for transfer.”12 The

11 April 3 Memo further explained that the factors of the March 26 Memo should be

12 considered guidance rather than rigid criteria for eligibility for home confinement,

13 and that all prisoners “with a suitable confinement plan will generally be appropriate

14 candidates for home confinement rather than continued detention at institutions in

15 which COVID-19 is materially affecting their operations.” Accordingly, from at

16 least April 3, 2020, Congress and the Attorney General obligated the BOP to review

17 for transfer to home confinement “all at risk inmates” in order to combat the threat

18 of COVID-19 within Lompoc.

19

The Complaint alleges that far from reviewing “all at risk inmates” for home

20 confinement, Respondents have instead erected unnecessary and arbitrary barriers to

21 eligibility for consideration. (Dkt. 16 [Compl.] at ¶ 77.) Those barriers exclude

22

23 11 Office of the Attorney General, Prioritization of Home Confinement as 24 Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020), 25 https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf
26 12 Office of the Attorney General, Increasing Use of Home Confinement as Institutions Most Affected by COVID-19 (Apr. 3, 2020),
27 https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf. 28

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1 from consideration any prisoner: (1) with a disciplinary record in the past 12 months

2 other than 300 or 400 series incidents; (2) without a verifiable release plan; (3)

3 whose primary offense is violent, a sex offense, or terrorism related, regardless of

4 how long ago the offense was or whether the details actually involved violence; (4)

5 with a current detainer; and (5) with a PATTERN risk score above “Minimum.”13

6 Id. The improper nature of those barriers is demonstrated by their impact on

7 Petitioners. Petitioner Brown has prostate cancer, asthma, high blood pressure, and

8 arthritis, each of which increase his risk of serious illness from COVID-19. (Id. at

9 ¶¶ 6, 12, 23.) Yet he remains ineligible even for consideration for home

10 confinement solely because his PATTERN risk score is low rather than minimum.

11 (Dkt. 25 [Opp. to TRO] at 34:28-35:2.) That is so even though the burdens on

12 Lompoc’s medical facilities mean he cannot get the treatment for his cancer that he

13 needs. (Dkt. 16 [Compl.] at ¶ 59.) Similarly, Petitioner Garcia is due to be released

14 from custody in early November 2020. (Id. at ¶ 13.) Notwithstanding that he is due

15 to be released from Lompoc in just a few months, he too was denied consideration

16 for home confinement on the basis that his PATTERN risk score was low rather

17 than minimum. (Dkt. 25 at 34:10-12.)

18

Respondents’ failure to review more prisoners clearly indicates reckless

19 indifference to Petitioners’ suffering. See Section III.B.1.b. infra. Law and justice

20 both require that the Court order Respondents to review for home confinement the

21 more than 2,400 prisoners at Lompoc who have not yet been reviewed, just as the

22 Attorney General directed and the Eighth Amendment requires and just as other

23 courts have done. See Martinez-Brooks, 2020 WL 2405350 at *33 (ordering

24

25 13 See Bureau of Prisons’ Correctional Programs Division Acting Assistant Director
26 Andre Matevousian & Reentry Services Division Assistant Director Hugh J. Hurwitz’s Memorandum to Chief Executive Officers dated May 8, 2020, which is
27 available online at https://prisonology.com/wp-content/uploads/2020/05/COVID-19-
28 Hurwitz-Memo-and-BOP-guidance-2020-05-08.pdf.

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1 pursuant to section 2243 that FCI Danbury “eliminat[e] all requirements that the

2 inmate have served some portion of his or her sentence . . . eliminat[e] the

3 requirement that a ‘primary or prior offense’ not be a violent offense . . . [and]

4 eliminat[e] the requirement that an inmate be without incident reports in the past 12

5 months” as barriers to being considered for home confinement) (internal quotations

6 omitted); Cameron, 2020 WL 2569868 at *13 (noting the court’s authority to grant

7 enlargement pending a resolution of a habeas claim and granting TRO for release of

8 medically vulnerable prisoners in section 2241 petition).

9

3. Respondents’ Own Actions Warrant The Waiver Of The

10

Exhaustion Of Administrative Remedies

11

As set out in detail in the Complaint, Respondents have thwarted any and all

12 efforts by Petitioners to obtain their requested relief through administrative

13 procedures. Having disenfranchised Petitioners in this way, Respondents’ argument

14 that Petitioners’ habeas claim should be dismissed for failure to exhaust

15 administrative remedies rings particularly hollow.

16

In the Ninth Circuit, “the exhaustion requirement is prudential, rather than

17 jurisdictional, for habeas claims.” Hernandez v. Sessions, 872 F.3d 976, 988 (9th

18 Cir. 2017). Unlike a jurisdictional exhaustion requirement, “courts have discretion

19 to waive a prudential requirement.” Laing v. Ashcroft, 370 F.3d 994, 998 (9th Cir.

20 2004). Courts may waive that prudential exhaustion requirement if “administrative

21 remedies are inadequate or not efficacious, pursuit of administrative remedies would

22 be a futile gesture, irreparable injury will result, or the administrative proceedings

23 would be void.” Id. at 1000.

24

The Complaint makes it plain that Petitioners’ exhaustion of administrative

25 remedies would have been futile and would have exposed them to irreparable harm.

26 First, as Respondents have confirmed in their Motion, the Bureau of Prisons did not

27 establish an administrative process through which prisoners could even apply for

28 home confinement under the CARES Act. (Dkt. 36 [Mot.] at 10:1-5; see also Dkt.

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1 18-1 [Rim Decl.], Ex. Q (“Inmates do NOT need to apply or request to be 2 considered for the CARES ACT.”).14) Respondents’ assertion that “inmates who 3 are dissatisfied with the BOP’s initial home confinement decision are required to 4 exhaust administrative remedies with the BOP” is Kafkaesque, given that very few 5 prisoners at Lompoc were considered for home confinement and there is no 6 indication that those who were denied home confinement were even told they had 7 been denied. (Dkt. 36 [Mot.] at 10:5-6.) Second, Petitioners alleged that staff at 8 Lompoc claimed that their work in responding to COVID-19 prevented them from 9 even accepting from prisoners the forms necessary to initiate an administrative 10 remedy process. (Dkt. 16 [Compl.] at ¶¶ 13-14). Third, Petitioners pled that 11 although they repeatedly complained of their need for medical treatment, they have 12 not been treated until their situation has become an emergency. (Id. at ¶¶ 10, 47, 13 56.) With urgent medical requests being ignored, there is no reason to think 14 Respondents would respond to other administrative requests. Fourth, Petitioners 15 Torres and Brown were ultimately able to submit administrative requests in the form 16 of applications for Compassionate Release, but neither had heard back by the time 17 the Complaint was filed. (Id. at ¶¶ 10, 12.) Fifth, Petitioners have pled that 18 prisoners at Lompoc have been unable to contact outside counsel who could advise 19 and assist them in seeking and obtaining administrative relief. (Id. at ¶¶ 45-46.) 20 Sixth, the Complaint makes it clear that COVID-19, which can cause serious harm 21 up to and including death, is spreading like wildfire through the facility and has 22 already infected hundreds. (Id. at ¶ 44.) Pursuing obviously futile administrative 23 relief would only prolong Petitioners’ exposure to that potentially irreparable harm. 24 Even if Respondents were not thwarting Petitioners’ access to administrative 25 26 14 While not alleged in the Complaint, this fact is judicially noticeable under 27 Federal Rule of Evidence 201 since it is not subject to reasonable dispute and can be 28 accurately and readily determined from the Bureau of Prison’s own document.
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1 remedies, those administrative remedies are simply too slow to address the exigent

2 circumstances presented by COVID-19’s spread throughout Lompoc. Valentine v.

3 Collier, 140 S. Ct. 1598, 1601 (2020) (Mem) (noting with respect to exhaustion

4 under the PLRA that grievance procedures may be effectively unavailable if they are

5 utterly incapable of responding to a rapidly spreading pandemic like Covid-19).

6 Seventh, Respondents still continue to deny there is a COVID-19 problem in

7 Lompoc that must be addressed with additional preventative measures. At least one

8 court has noted with respect to Lompoc that “California’s two United States

9 Senators have repeatedly called on the BOP to take additional emergency measures

10 to slow the spread of the virus at the facility,” without success. Connell, 2020 WL

11 2315858 at *6 (citation omitted). Another court denied a request for compassionate

12 release on the basis that administrative remedies had not been exhausted and

13 “implor[ed] FCI Lompoc to respond” to plaintiff’s request, but Lompoc never

14 responded. Pippin, 2020 WL 2602140 at *2. Given Respondents’ ongoing denial

15 of the existence of a problem, and the failure of even Senators and District Courts to

16 push Respondents to take greater steps to protect prisoners at Lompoc and respond

17 to administrative requests, it is plain that any request for administrative relief is—

18 and was—bound to fail. See also Connell, 2020 WL 2315858 at *5 (“[t]he BOP is

19 overwhelmed by the unique challenges COVID-19 presents . . . . The extraordinary

20 and unprecedented circumstances faced by prisons in light of the COVID-19

21 pandemic have rendered administrative exhaustion futile.”) (citation omitted).

22

In short, it is absurd of Respondents to assert that Petitioners’ claim should be

23 dismissed so that Petitioners can exhaust futile, empty, and time consuming

24 administrative processes before they can bring their identical concerns back before

25 this court. With a life-threatening illness flooding through Lompoc, justice delayed

26 is unquestionably justice denied.

27

28

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1

C. Petitioners Have Properly Alleged A Direct Claim For Injunctive

2

And Declaratory Relief Under The Eighth Amendment

3

1. Petitioners Have Sufficiently Alleged Respondents’

4

Deliberate Indifference

5

In prohibiting “cruel and unusual punishments,” the Eighth Amendment

6 embodies “broad and idealistic concepts of dignity, civilized standards, humanity,

7 and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). It is against those

8 standards that conditions of confinement are evaluated, and it is those standards that

9 impose upon prison officials a constitutional obligation to protect the incarcerated

10 from, and not be deliberately indifferent to, conditions of confinement that are “very

11 likely to cause serious illness and needless suffering.” Helling v. McKinney, 509

12 U.S. 25, 33 (1993) (impermissible for prison officials to be “deliberately indifferent

13 to the exposure of inmates to a serious, communicable disease on the ground that the

14 complaining inmate shows no serious current symptoms”).

15

There are two factors courts must consider to determine whether a prison

16 official’s failure to protect prisoners from harm rises to the level of an Eighth

17 Amendment violation. The first factor is objective: the conditions of confinement

18 must have put prisoners at “substantial risk of serious harm.” Farmer, 511 U.S. at

19 834. The second is subjective: the prison official must have acted with “deliberate

20 indifference” to inmate health or safety. Id. Petitioners’ Complaint meets both of

21 those requirements.

22

a. Petitioners Have Alleged They Are Subject To An

23

Objective, Substantial Risk Of Serious Harm

24

To show substantial risk of serious harm, Petitioners must show that “society

25 considers the risk that the prisoner complains of to be so grave that it violates

26 contemporary standards of decency to expose anyone unwillingly to such a risk. In

27 other words, the prisoner must show that the risk of which he complains is not one

28 that today’s society chooses to tolerate.” Helling, 509 U.S. at 36. Courts have

15
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1 routinely found that exposure to disease or health issues constitutes a serious harm.

2 See, e.g., id. at 33 (finding that the reach of the Eighth Amendment includes

3 “exposure of inmates to a serious, communicable disease”); Jeffries v. Block, 940 F.

4 Supp. 1509, 1514 (C.D. Cal. 1996) (agreeing that “tuberculosis is a serious

5 contagious disease, which presents a serious risk to inmate health”); Jolly v.

6 Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an

7 affirmative obligation to protect [forcibly confined] inmates from infectious

8 disease.”).

9

COVID-19 is a global pandemic that has uprooted every aspect of daily life

10 throughout the world. To combat that pandemic, as early as March 4, 2020, state

11 and local officials across the country, including here in California, began to

12 implement steps to address the COVID-19 pandemic, including implementing

13 innumerable restrictions on businesses, schools, and places of worship so that social

14 distancing can be promoted and people are not forced to come into contact with

15 potential COVID-19 carriers. (Dkt. 16 [Compl.] at ¶¶ 31-32.) While society has

16 chosen to implement protective rules to prevent the spread of COVID-19, prisoners

17 are forced to live in conditions that dramatically increase not only their risk of

18 contracting a COVID-19 infection, but also their risk of dying from a COVID-19

19 infection. (Id. at ¶ 34 (“Correctional facilities increase the risk of rapid spread of an

20 infectious disease, like COVID-19, because of the high numbers of people with

21 chronic, often untreated, illnesses housed in a setting with minimal levels of

22 sanitation, limited access to personal hygiene, limited access to medical care, and no

23 possibility of staying at a distance from others.”).) Even among federal prisons,

24 Lompoc is uniquely vulnerable to a COVID-19 outbreak for three reasons: (1) it

25 confines a large number of prisoners, enough that Lompoc was at 130% of capacity

26 at the date of the Complaint (id. at ¶ 91); (2) many are housed in open, communal

27 housing areas, sleeping just 2-3 feet from each other, or have multiple people in

28

16
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1 cells designed for a single person (id. at ¶¶ 14, 48-49).15

2

Given the unique threat posed by COVID-19, the Attorney General

3 acknowledged more than three months ago the “dangers that COVID-19 poses to

4 our vulnerable inmates” and directed BOP to take extraordinary measures, including

5 releasing prisoners to home confinement, to protect prisoners from contracting

6 COVID-19. (Id. at ¶¶ 84-85.) At this point in the global pandemic, it is simply

7 irrefutable that COVID-19 is a “serious” disease that poses a substantial risk of

8 severe harm to everyone. For that reason, every court that has considered this

9 question has determined that the risk of contracting COVID-19 is a substantial risk

10 of serious harm that satisfies the first prong of the deliberate indifference inquiry.

11 See, e.g., Martinez-Brooks v. Easter, 2020 WL 2405350, at *20–21 (D. Conn. May

12 12, 2020); Fraihat v. U.S. Immigration and Customs Enforcement, 2020 WL

13 1932570, at *23 (C.D. Cal. April 20, 2020); Basank v. Decker, 2020 WL 1481503,

14 at *3, 5 (S.D.N.Y. Mar. 26, 2020). Indeed, even courts that ultimately found that the

15 subjective factor for an Eighth Amendment violation at a particular prison was not

16 satisfied have still found the objective factor was satisfied. See e.g., Swain v.

17 Junior, 2020 WL 3167628, at *5 (11th Cir. Jun. 15, 2020) (“[t]he defendants seem

18 to agree—wisely, we think—that the risk of COVID-19 satisfies this

19 requirement.”)16

20

21 15 While Respondents assert that the population has been reduced in the past two
22 months, (Dkt. 36 [Mot.] at 4), they do not contest that the population at Lompoc remains far in excess of that which it was designed to hold.
23
24 16 Courts that have recently considered the conditions in Lompoc in connection with requests for compassionate relief have likewise concluded that the risk of
25 contracting COVID-19 at Lompoc presents a substantial risk of serious harm. See
26 e.g. Connell, 2020 WL 2315858 at *6 (identifying Lompoc as one of “worst coronavirus hotspots in the nation” and calling the situation “dire”); Pippin, 2020
27 WL 2602140 at * 2 (“catastrophic COVID-19 outbreak” at Lompoc placed
28 medically vulnerable prisoner’s “life in jeopardy”).

17
OPPOSITION TO MOTION TO DISMISS

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1

b. Respondents’ Response To The Outbreak

2

Demonstrates Their Subjective Deliberate Indifference

3

Prison officials are deemed to be deliberately indifferent with regards to

4 dangerous conditions when they are “aware of the facts from which the inference

5 could be drawn that a substantial risk of serious harm exists,” yet “disregard that

6 risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 837,

7 839-40 (describing the standard for deliberate indifference as being similar to

8 “subjective recklessness as used in the criminal law”). Respondents do not and

9 cannot dispute that they were aware of the risk COVID-19 posed to prisoners in

10 Lompoc from the start of the outbreak here in the United States. Their response, or

11 rather the lack of it, demonstrates a callous and reckless disregard of the very

12 substantial risk COVID-19 poses to those prisoners it was obligated to protect.

13

As noted above, state and local officials began to take steps to address the

14 COVID-19 pandemic in early March 2020. (Dkt. 16 [Compl.] at ¶¶ 31-32.) On

15 March 26, 2020, and again on April 3, 2020, Attorney General Barr issued urgent

16 memoranda to the Bureau of Prisons regarding COVID-19 and how the Bureau of

17 Prisons should respond to it, noting the “significant levels of infection at several of

18 our facilities” and the “dangers that COVID-19 poses to our vulnerable inmates.”

19 (Id. at ¶¶ 75-76.) Had Respondents taken appropriate steps to address and alleviate

20 the threat COVID-19 posed to prisoners when those warning signs and directives

21 were issued, the catastrophe at Lompoc may have been avoided. They did not do so.

22 After initially delaying taking preventative measures, those steps Respondents did

23 take were unreasonable and insufficient to address the scale of the risk to prisoners

24 and were bound to fall woefully short of substantially reducing Petitioners’ risk of

25 contracting COVID-19. Among other things, Respondents:

26

 Aggressively transferred prisoners between housing units in a ham-handed

27

effort to segregate the infected population. Due to inadequate testing

28

capacity, this merely allowed infected but asymptomatic prisoners to

18
OPPOSITION TO MOTION TO DISMISS

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1

rapidly spread the virus as they jumped from unit to unit. (Id. at ¶¶ 51-53.)

2

 Attempted to “solve” the overcrowding and communal housing issues by

3

(1) moving prisoners from low-and-minimum-security facilities in the

4

Lompoc Camp and FCI Lompoc to the medium-security prison at USP

5

Lompoc, where two prisoners each were locked down in tiny, single-

6

occupancy cells without access to basic hygiene facilities; and (2) moving

7

prisoners to an unsanitary housing unit that had previously been closed due

8

to mold contamination, without properly cleaning that unit. (Id. at ¶¶ 49-

9

50.)

10

 Failed to secure adequate testing capacity, to the extent that over a month

11

into the outbreak, Lompoc still did not have the capacity to test its entire

12

population. As a result, the infected were only tested until several days

13

after they began displaying symptoms, when their health had already

14

declined precipitously. (Id. at ¶¶ 52-53.)

15

 Denied treatment to symptomatic prisoners until their condition

16

deteriorated to the point that emergency hospitalization was required. (Id.

17

at ¶¶ 55-57.)

18

 Placed prisoners suspected of having COVID-19 in solitary confinement,

19

incentivizing others to hide and not report their symptoms lest they suffer

20

the same fate. (Id. at ¶ 58.)

21

 Despite repeated guidance from the Attorney General to the contrary,

22

refused to even consider home confinement for the vast majority of

23

prisoners. (Id. at ¶ 5.)17

24

 Repeatedly ignored CDC-issued guidance and the advice of correctional

25

26 17 As noted above, during the July 7, 2020 hearing regarding Petitioners’ request 27 for a TRO, Respondents stated that they have considered 61 Lompoc prisoners for
28 home confinement.

19
OPPOSITION TO MOTION TO DISMISS

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1

health experts regarding managing COVID-19 in correction facilities. (Id.

2

at ¶¶ 35-38, 73.)

3

Far from helping to control the outbreak and reduce the risk COVID-19 posed

4 to the prisoners, many of these measures were counter-productive and self-defeating

5 because they only fanned the flames of the outbreak, exposing more prisoners to the

6 risk of infection, illness, and death. For example, Respondents’ transfer of prisoners

7 between units without sufficient testing to identify if they were infected actively

8 accelerated the spread of the virus through the facility. (Id. at ¶¶ 51-53).

9 Intimidating prisoners into hiding their symptoms by putting those suspected of

10 having COVID-19 into solitary confinement meant sick prisoners spent more time

11 around healthy individuals, exposing them to the virus. (Id. at ¶ 58). Even the

12 inadequate measures Respondents actually took were implemented far too late:

13 prisoners had not been tested over a month after the outbreak within Lompoc had

14 begun, asymptomatic prisoners are not tested until they presented symptoms,

15 individuals are not appropriately quarantined, masks were not distributed quickly

16 and prisoners are forced to reuse the same mask indefinitely, hand sanitizer is

17 unavailable and even soap is in short supply, the medical facilities ostensibly set up

18 to treat prisoners are facially inadequate to respond to the scale of the outbreak and

19 not functioning for weeks, sick prisoners are not treated, and social distancing is

20 impossible. (Id. at ¶¶ 48-67.) Further, despite being directed by the Attorney

21 General to use home confinement to review “all at risk inmates” for home

22 confinement in order to combat the threat of COVID-19 within Lompoc,

23 Respondents have erected arbitrary barriers to even being considered for home

24 confinement review. (Id. at ¶ 77.) Finally, Respondents’ repeated argument that

25 prisoners must exhaust administrative remedies before they can seek the relief from

26 a court only confirms their deliberate indifference given that they have made those

27 remedies unavailable. See section III.B.2., infra.

28

The result of Respondents’ facially unreasonable actions has been an

20
OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 27 of 33 Page ID #:1764

1 unmitigated catastrophe. As of May 15, 2020, Lompoc had by far the largest

2 outbreak at any BOP facility, with 1,023 positive cases, (id. ¶ 2) and more COVID-

3 19 cases within its walls than in the entire of Santa Barbara County (id. ¶ 44).

4

Starting on May 15, 2020, the BOP begin categorizing certain prisoners who

5 had tested positive as “recovered.” (Id. at ¶ 69.) Respondents refer to that new

6 category as evidence that their response “appears to be working.” (Dkt. 36 [Mot.] at

7 4:10-18.) Although massaging the figures in a creative re-labeling exercise may

8 make it “appear” as if progress has been made, and thus deflect scrutiny of

9 Respondents’ response to COVID-19, that does not impact prisoners’ reality. On

10 June 21, 2020, Mamadou Kaba, a prisoner at Lompoc, was found unresponsive in

11 his cell and later declared dead by responding paramedics.18 Despite weeks having

12 passed since Mr. Kaba’s passing, Lompoc is refusing to disclose the cause of death

13 or even to state that it was not due to COVID-19.19

14

That Respondents have taken some steps in response to COVID-19 does not,

15 alone, demonstrate the absence of deliberate indifference, particularly when those

16 steps did not align with some of the most basic guidance issued from the CDC and

17 the Attorney General. See, e.g., Hernandez v. County of Monterey, 110 F. Supp. 3d

18 929, 943 (N.D. Cal. 2015) (“known noncompliance with generally accepted

19 guidelines for inmate health strongly indicates deliberate indifference”). Many, if

20 not all, of the steps Respondents took at Lompoc were identical to those taken at

21 22 18 Tyler Hayden, Family of Lompoc Inmate Found Dead Demands Answers, SANTA
BARBARA INDEPENDENT, June 24, 2020 available at 23 https://www.independent.com/2020/06/24/family-of-lompoc-inmate-found-dead24 demands-answers/.
25 19 Additionally, on May 24, 2020, Adrian Solarzano, a prisoner at FCI Terminal Island, died from coronavirus related causes despite having been classified as
26 recovered. Richard Winton, Inmate Recovering from Coronavirus Dies at Terminal 27 Island, LOS ANGELES TIMES, available at
https://www.latimes.com/california/story/2020-05-28/ninth-inmate-dies28 coronavirus-terminal-island-prison.

21
OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 28 of 33 Page ID #:1765

1 FCI Terminal Island, including the lack of home confinement review. (Dkt. 28 at 6-

2 12.) There too, those steps failed to contain COVID-19 and it spread throughout the

3 prison. (Id. at 5, 20.) Although the court ultimately denied petitioners request for a

4 TRO on one of their claims, it found that even if it credited all the evidence in

5 Respondents’ favor, Respondents’ measures to contain COVID-19 were so

6 insufficient that it amounted to deliberate indifference. (Id. at 20. (“Respondents

7 can point to everything they are doing, but at some point, it is just a bandage on a

8 gaping wound.”).) This Court should reach the same conclusion with respect to

9 Lompoc.

10

Respondents’ citations to instances where other courts found wardens not to

11 have been deliberately indifferent do not assist them here. (Dkt. 36 [Mot.] at 13-14.)

12 Lompoc is not like other prisons, since it has the largest outbreak in the entire BOP

13 system by far, (Dkt. 16 [Compl.] at ¶ 2), and houses large numbers of prisoners in

14 communal housing areas (id. at ¶¶ 14, 48-49).20 And Respondents’ unprecedented

15 failure to control or even slow the outbreak in any way, shape, or form, along with

16 their repeated failure to implement even basic guidance from the CDC, factually

17 distinguish this matter from those cases cited by Respondents. Valentine v. Collier,

18 for example, is not comparable because that action concerned a state prison in Texas

19 to which the Attorney General’s directives did not apply and there is no evidence

20 that those steps that were held to show an absence of deliberate indifference are the

21 same or even similar to the steps Respondents took at Lompoc. Valentine v. Collier,

22 956 F.3d 797, 801-02 (5th Cir. 2020). Chunn v. Edge is not comparable because the

23 prison authorities had been “more successful than many other prisons in preventing

24 an outbreak” and had not had any COVID-19 related deaths. 2020 WL 3055669, at

25 *7 (E.D.N.Y. June 9, 2020). Accordingly, prisoners in that facility did not face a

26

27 20 Terminal Island also has one of the largest outbreaks in the federal prison system 28 and houses prisoners in communal areas. (Dkt. 28 at 5.)

22
OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 29 of 33 Page ID #:1766

1 substantial risk of harm from conditions at the prison and there clearly could not be

2 a finding of deliberate indifference. Id. at *24 (noting, however, that “an inmate can

3 face a substantial risk of serious harm in prison from COVID-19 if a prison does not

4 take adequate measures to counter the spread of the virus”). Finally, Grinis v.

5 Spaulding is distinguishable because the court in that action held that plaintiffs

6 could not show deliberate indifference when the steps taken by prison authorities

7 had led to a COVID-19 infection rate of just 1 prisoner in 1,000. 2020 WL

8 2300313, at *3 (D. Mass. May 8, 2020).

9

Chunn and Grinis both show that while COVID-19 undoubtedly poses a

10 difficult challenge for correctional facilities, reasonable steps taken by prison

11 authorities can stop its spread. As another example, just fifty miles South from

12 Lompoc on the US-101 highway, Santa Barbara County Jail released over a third of

13 its prisoners in late April, and has been able to avoid a mass outbreak.21 That

14 Lompoc’s outbreak is the among the worst in the nation is not therefore due to

15 COVID-19 being unstoppable, but is due to Respondents’ refusal to reduce its

16 population in any meaningful way, refusal to follow CDC guidelines, and refusal to

17 take even the basic steps necessary to maintain a safe and clean environment. See

18 also Connell, 2020 WL 2315858 at *6 (noting that the COVID-19 outbreak at

19 Lompoc was so “dire” that it “has drawn national media attention, and California’s

20 two United States Senators have repeatedly called on the BOP to take additional

21 emergency measures to slow the spread of the virus at the facility”) (citation

22 omitted). Respondents have been on notice of the threat of COVID-19 for months.

23 Respondents’ total failure to control the virus and facially inadequate response, even

24 after months of public pressure, bespeaks their deliberate indifference to the

25
26 21 Brian Osgood, Several Inmates and Guards at Santa Barbara County Jail Test Positive for COVID-19, SANTA BARBARA INDEPENDENT, June 29, 2020 available at
27 https://www.independent.com/2020/06/24/family-of-lompoc-inmate-found-dead28 demands-answers/.

23
OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 30 of 33 Page ID #:1767

1 substantial, potentially deadly risk the virus poses to the prisoners under their

2 protection.

3

2. Petitioners Have Sufficiently Pled Exhaustion Of

4

Administrative Remedies

5

As noted above, Respondents are responsible for having prohibited

6 Petitioners from seeking administrative relief and for ensuring that any effort to seek

7 such relief would be futile.

8

Although 42 U.S.C. § 1997e(a) requires prisoners to exhaust those

9 “administrative remedies as are available” before filing suit to challenge

10 unconstitutional conditions, the exhaustion requirement is met, or excused, if

11 administrative remedies are effectively unavailable. Sapp v. Kimbrell, 623 F.3d

12 813, 822 (9th Cir. 2010) (“We have recognized that the PLRA therefore does not

13 require exhaustion when circumstances render administrative remedies ‘effectively

14 unavailable.’”) (quoting Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010)),

15 superseded by statute on other grounds as stated in Avery v. Paramo, No. 13-cv-

16 2261 BTM, 2015 WL 4923820, at *14 (S.D. Cal. Aug. 18, 2015). The Supreme

17 Court has held that an administrative process that exists on paper will be unavailable

18 if it “operates as a simple dead end—with officers unable or consistently unwilling

19 to provide any relief to aggrieved inmates” or if “prison administrators thwart

20 inmates from taking advantage of a grievance process.” Ross v. Blake, 136 S. Ct.

21 1850, 1859–60 (2016). Even where prison administrators do not thwart an

22 administrative process, it will nonetheless be deemed unavailable if it is insufficient

23 to address the harm being suffered. As Justice Sotomayor recently stated in the

24 context of the COVID-19 pandemic itself, “if a plaintiff has established that the

25 prison grievance procedures at issue are utterly incapable of responding to a rapidly

26 spreading pandemic like Covid-19, the procedures may be ‘unavailable’ to meet the

27 plaintiff’s purposes, much in the same way they would be if prison officials ignored

28 the grievances entirely. . . in these unprecedented circumstances, where an inmate

24
OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 31 of 33 Page ID #:1768

1 faces an imminent risk of harm that the grievance process cannot or does not

2 answer, the PLRA’s textual exception could open the courthouse doors where they

3 would otherwise stay closed.” Valentine, 140 S. Ct. at 1601. In sum, where the

4 administrative procedures in place are practically unavailable to plaintiffs, they are

5 not required to exhaust them before bringing suit in court.

6

As a threshold matter, because “failure to exhaust [administrative remedies] is

7 an affirmative defense under the PLRA . . . prisoners are not required to specially

8 plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199,

9 216 (2007) (emphasis added). Accordingly, even had Petitioners failed to plead

10 they had exhausted, or should be excused from exhausting, administrative remedies,

11 that failure would not constitute a ground for dismissing their second claim.

12 Contrary to Respondents’ assertions, however, as set out above Petitioners have

13 pleaded that Respondents and the circumstances at Lompoc foreclosed them from

14 being able to seek relief through administrative remedies. See Section III.A.3 supra.

15

Since administrative remedies are “effectively unavailable,” Respondents’

16 motion to dismiss on this basis should be denied.

17 IV. CONCLUSION

18

For the foregoing reasons, Respondents’ motion to dismiss should be denied

19 in its entirety.

20

21 DATED: July 14, 2020

Respectfully submitted,

22

Bird, Marella, Boxer, Wolpert, Nessim,

23

Drooks, Lincenberg & Rhow, P.C.

24

By:

/s/ Naeun Rim

25

Naeun Rim

26

Attorneys for Plaintiff-Petitioners

27

28

25
OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 32 of 33 Page ID #:1769

1 DATED: July 14, 2020 2 3 4 5 6 DATED: July 14, 2020 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Peter J. Eliasberg Peter Bibring ACLU Foundation of Southern California

By:

/s/ Peter Bibring

Peter Bibring Attorneys for Plaintiff-Petitioners

Donald Specter Sara Norman Prison Law Office

By:

/s/ Donald Specter

Donald Specter Attorneys for Plaintiff-Petitioners

26
OPPOSITION TO MOTION TO DISMISS

Case 2:20-cv-04450-CBM-PVC Document 46 Filed 07/14/20 Page 33 of 33 Page ID #:1770

1

CERTIFICATE OF AUTHORIZATION

2

TO SIGN ELECTRONIC SIGNATURE

3

Pursuant to Local Rule 5-4.3.4(a)(2)(i) of the Signatures Procedures for the

4 United States District Court for the Central District of California, filer attests that all

5 other signatories listed concur in the filing’s content and have authorized this filing.

6

7 DATED: July 14, 2020 8

Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C.

9

By:

/s/ Naeun Rim

10

Naeun Rim Attorneys for Plaintiff-Petitioners

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

27
OPPOSITION TO MOTION TO DISMISS

 Case 2:20-cv-04450-CBM-PVC Document 52 Filed 07/21/20 Page 1 of 12 Page ID #:1915

1 NICOLA T. HANNA

United States Attorney

2 DAVID M. HARRIS

Assistant United States Attorney

3 Chief, Civil Division

JOANNE S. OSINOFF

4 Assistant United States Attorney

Chief, General Civil Section

5 KEITH M. STAUB (Cal. Bar No. 137909)

CHUNG H. HAN (Cal. Bar No. 191757)

6 JASMIN YANG (Cal. Bar No. 255254)

DAMON A. THAYER (Cal. Bar No. 258821)

7 PAUL B. GREEN (Cal. Bar No. 300847)

Assistant United States Attorney

8

Federal Building, Suite 7516

300 North Los Angeles Street

9

Los Angeles, California 90012

Telephone: (213) 894-7423

10

Facsimile: (213) 894-7819

E-mail: Keith.Staub@usdoj.gov

11

Chung.Han@usdoj.gov

Jasmin.Yang@usdoj.gov

12

Damon.Thayer@usdoj.gov

Paul.Green@usdoj.gov

13

Attorneys for Respondents

14

UNITED STATES DISTRICT COURT

15 FOR THE CENTRAL DISTRICT OF CALIFORNIA

16

WESTERN DIVISION

17 YONNEDIL CARROR TORRES;

No. CV 20-4450- CBM-PVCx

18 VINCENT REED; FELIX SAMUEL

GARCIA; ANDRE BROWN; and

RESPONDENTS’ REPLY IN SUPPORT

19 SHAWN L. FEARS, individually and on behalf of all others similarly

OF MOTION TO DISMISS

20 situated,

Hearing Date: August 4, 2020

Hearing Time: 10:00 a.m.

21

Plaintiff-Petitioners,

Ctrm:

8B

22

v.

23 LOUIS MILUSNIC, in his capacity as Warden of Lompoc; and MICHAEL
24 CARVAJAL, in his capacity as Director of the Bureau of Prisons,
25 Defendant-Respondents.
26

Honorable Consuelo B. Marshall United States District Judge

27

28

Case 2:20-cv-04450-CBM-PVC Document 52 Filed 07/21/20 Page 2 of 12 Page ID #:1916

1 I. INTRODUCTION

2

Since Petitioners filed their Complaint on May 16, 2020, the number of COVID-

3 19 cases has nearly tripled across the nation, the number of deaths has nearly doubled,

4 the number of cases in California has increased five-fold, and the number of deaths in

5 California has more than doubled.

6

Cases in USA Deaths in USA Cases in CA Deaths in CA

7 May 16, 20201 1,412,121

85,990

74,936

3,108

8 July 21, 2020 3,850,1342

141,158

397,5383

7,6944

9 % increase

+ 272.65%

+164.16%

+ 522.50%

+247.55%

10

11 In contrast, USP Lompoc currently reports 12 inmate COVID-19 cases and FCI 12 Lompoc reports 0. See https://www.bop.gov/coronavirus/ (last accessed July 21, 2020). 13 There is no place in the United States safe from COVID-19. Transferring inmates into

14 the community will not insulate them from risks associated with the disease.

15

Petitioners’ habeas and Eighth Amendment claims are subject to dismissal for

16 being inadequately plead. In addition, Petitioners fail to meet the standard for obtaining

17 injunctive relief. They must demonstrate that “prison authorities’ current attitudes and

18 conduct” meet the “high legal standard” of deliberate indifference, and will continue to

19 do so in the future. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (emphasis

20 added); Farmer v. Brennan, 511 U.S. 825, 845 (1994). Petitioners’ own allegations, and

21 those facts of which the Court may take judicial notice, demonstrate that the BOP has

22 taken reasonable measures. The reasonableness of these measures is reflected in the fact

23 that while the number of COVID-19 cases within the United States and California

24

25

1 All May 16, 2020 figures are from the Complaint, ¶ 21.

26

2 Current nationwide figures are from Coronavirus Resource Center: COVID-19 Dashboard,

John Hopkins Univ. & Med., https://coronavirus.jhu.edu/map.html (last accessed July 21, 2020)

27

3 https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx#COVID-

28 19%20by%20the%20Numbers (last accessed July 21, 2020)
4 Id.

1

Case 2:20-cv-04450-CBM-PVC Document 52 Filed 07/21/20 Page 3 of 12 Page ID #:1917

1 continues to skyrocket, the number of positive cases and the number of inmates housed

2 within FCC Lompoc has been decreasing. Furthermore, Respondents respectfully

3 contend that the Court’s finding of habeas jurisdiction in its Order Granting Preliminary

4 Injunction (Dkt. No. 45) was in error because it relied on out-of-Circuit cases rather than

5 binding Supreme Court and Ninth Circuit cases. Thus, the Complaint should be

6 dismissed.

7 II. ARGUMENT

8

A. Petitioners’ Habeas Claim Should be Dismissed

9

1. Petitioners Do Not Assert A Cognizable Habeas Claim

10

Petitioners’ habeas claims do not actually seek habeas relief. Petitioners should

11 not be permitted to relabel a conditions of confinement claim as a habeas claim to 12 circumvent the PLRA. In Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016), the

13 Ninth Circuit clarified that “[c]hallenges to the validity of any confinement or to 14 particulars affecting its duration are the province of habeas corpus; requests for relief

15 turning on circumstances of confinement may be presented in a § 1983 action.” Nettles 16 noted that civil rights claims are the exclusive vehicle for suits about prison life outside

17 the core of habeas and that “[i]t would fully frustrate congressional intent to hold that

18 prisoners could evade the requirements of the PLRA by the simple expedient of putting a

19 different label on their pleadings.” Id. at 932. Petitioners’ attempt to relabel their

20 conditions of confinement claims as habeas claims to avoid PLRA exhaustion

21 requirements is precisely what the Ninth Circuit criticized in Nettles.

22

Unlike a core habeas claim, Petitioners’ allege that the conditions at FCC Lompoc

23 are dangerous because of COVID-19 and the BOP’s alleged inadequate response to the

24 pandemic. The Complaint is replete with references to Lompoc’s allegedly inadequate

25 conditions. See e.g., Compl. at 38:16-17 and 38:24-25. Under the habeas heading of their

26 Complaint, Petitioners allege, “Because of the conditions at Lompoc, Petitioners and

27 Class members cannot take steps to protect themselves.” Compl. at 43:16-17.

28

2

Case 2:20-cv-04450-CBM-PVC Document 52 Filed 07/21/20 Page 4 of 12 Page ID #:1918

1 Petitioners’ own allegations illustrate that their habeas claim is really a conditions of

2 confinement claim.

3

Petitioners’ authority is not persuasive. Unlike Wilson v. Williams and Martinez

4 Brooks v. Easter, Petitioners are not arguing that no set of conditions would be sufficient

5 to protect them from COVID-19; in fact, they are arguing for better conditions and set

6 forth specific demands for sanitation supplies and masks. Compl. at 47-48. Petitioners’

7 reliance on Calderon v. Barr, 2020 WL 2394287 at *3-4 (E.D. Cal. May 12, 2020) is

8 misplaced as Calderon supports Respondents’ position. Calderon stated that the

9 immigration detainee’s “COVID-19 action is essentially a conditions of confinement

10 civil rights action contained within a 28 U.S.C. 2241 habeas wrapper” and warned

11 against “the risk of turning 28 U.S.C. 2241 into a general civil rights statute by the mere

12 expedient of a petitioner seeking that release remedy, perhaps among other remedies, in

13 every habeas action in which conditions of confinement are at issue[.]”

14

As noted in the Motion (at 6:15-7:5), the vast majority of courts that have

15 considered habeas claims in the COVID-19 prison context have found that complaints

16 concerning conditions of confinement are not habeas claims despite being titled as such.

17 Petitioners do not even attempt to distinguish any of the cases cited in the Motion,

18 thereby conceding they should control here. Permitting Petitioners claims to proceed

19 with their habeas claim is inconsistent with the weight of authority, and would, as the

20 Castillo v. Barr court noted, encourage litigants to seek habeas relief for any purported

21 violation of civil rights so as to evade the PLRA’s requirements. See also Wilson v.

22 Ponce, Case No. CV 20-4451-MWF at Dkt. No. 58 at 9 (holding that habeas relief

23 sought is a “prisoner release order” governed by and barred by the PLRA).

24

2. The BOP’s Inmate Placement Determinations Are Not Reviewable

25

Petitioners argue that the BOP’s home confinement evaluation process is

26 unconstitutionally restrictive. Opp., 10:20-11:4. Although Petitioners disagree with the

27 BOP’s home confinement decisions, the BOP has sole discretion over inmate placement

28 decisions. 18 U.S.C. §§ 3621(b), 3625. See also Reeb v. Thomas, 636 F.3d 1124, 1126-

3

Case 2:20-cv-04450-CBM-PVC Document 52 Filed 07/21/20 Page 5 of 12 Page ID #:1919

1 28 (9th Cir. 2011). Nothing in the CARES Act limits or proscribes the BOP’s sole

2 discretion as to inmate placement decisions, nor does anything in the CARES Act

3 require that the BOP release Petitioners.

4

Petitioners again ignore the binding authority cited in the Motion. Petitioners

5 instead rely on Farmer v. Brennan, 511 U.S. 825 (1994), which is inapposite for several

6 reasons. First, Farmer was not a habeas case, but an Eighth Amendment case that

7 resolved the issue of inconsistent tests for what constituted deliberate indifference. Id. at

8 832. Second, Farmer did not analyze the BOP’s unreviewable discretion in making

9 inmate placement decisions or 18 U.S.C. § 3621. Third, although the petitioner in

10 Farmer had initially sought an order requiring the BOP to place her in a co-correctional

11 facility, she subsequently dropped that request for relief. Id. at 831, n.1. Fourth, although

12 the Farmer petitioner had sought an injunction barring future confinement in any

13 penitentiary, the Supreme Court did not address or grant that relief and remanded to the

14 district court for further proceedings on the Eighth Amendment claim.

15

Although Petitioners continue to repeat selected language from the Attorney

16 General’s March 26 and April 3 memoranda, they ignore that the these memoranda also

17 require that the BOP must be mindful of public safety in making individualized home

18 confinement evaluations. The Attorney General’s April 3, 2020 Memorandum states:

19

The last thing our massively over-burdened police forces need right now is

20

the indiscriminate release of thousands of prisoners onto the streets without

21

any verification that those prisoners will follow the laws when they are

22

released, that they have a safe place to go where they will not be mingling

23

with their old criminal associates, and that they will not return to their old

24

ways as soon as they walk through the prison gates. Thus, while I am

25

directing you to maximize the use of home confinement at affected

26

institutions, it is essential that you continue making the careful,

individualized determinations BOP makes in the typical case. Each inmate 27

28

4

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1

is unique and each requires the same individualized determinations we have

2

always made in this context.

3 See April 3, 2020 Memorandum at Page 3. Petitioners assert that committing a sex crime

4 or a violent crime should not be a barrier to transfer to home confinement (Opp. at

5 10:21-11:6) and seek to override the BOP’s sole authority to make individualized

6 determinations as to suitability for home confinement. However, there is no legal

7 authority to do so.

8

3. Exhaustion Should Not Be Waived

9

Given that Petitioners can utilize the compassionate release process under 18

10 U.S.C. § 3582(c)(1)(A) (and the Opposition acknowledges some already have at 14:11-

11 21) it is disingenuous for Petitioners to argue that they should be excused from

12 exhaustion requirements under the PLRA or otherwise. Moreover, Petitioners’ assertion

13 that COVID-19 is “spreading like wildfire” is contradicted by current data. Petitioners do

14 not even contend that they even attempted to utilize the BOP administrative process.

15 Respondents incorporate their arguments regarding exhaustion in Section B.2, infra.

16

B. Petitioners’ Eighth Amendment Claims Should Be Dismissed

17

1. Petitioners Have Not Sufficiently Alleged Deliberate Indifference

18

a. Petitioners Have Not Plead that They Are Subject to an

19

Unreasonable Risk of Harm

20

As noted above, since May 16, 2020, the number of COVID-19 cases has nearly

21 tripled across the nation, the number of deaths has nearly doubled, the number of cases

22 in California has increased five-fold, and the number of deaths in California has more

23 than doubled. These numbers belie Petitioners’ argument that “[w]hile society has

24 chosen to implement protective rules to prevent the spread of COVID-19, prisoners are

25 forced to live in conditions that dramatically increase not only their risk of contracting a

26 COVID-19 infections, but also their risk of dying from a COVID-19 infection.” See

27 Opp. at 16:15-19. These “protective rules” have not slowed, let alone prevented, the

28

5

Case 2:20-cv-04450-CBM-PVC Document 52 Filed 07/21/20 Page 7 of 12 Page ID #:1921

1 spread of the coronavirus, as the rates of infection and deaths continue to soar

2 nationwide and in California.

3

In contrast, the numbers of positive cases at FCC Lompoc have decreased and

4 stabilized, as it currently reports 12 inmate and two staff cases of COVID-19. These

5 statistics show that the BOP has not been deliberately indifferent to the inmates’ needs at

6 FCC Lompoc, and that the BOP has not denied Petitioners “the minimal civilized

7 measure of life’s necessities” in addressing the harm COVID-19 presents in its prisons,

8 including at FCC Lompoc. Wilson v. Seiter, 501 U.S. 294, 298 (1991). Petitioners cannot

9 show that they are incarcerated under conditions posing a substantial risk of harm as the

10 ravages from COVID-19 expose everyone—prisoner and non-prisoner alike. See

11 Farmer, 511 U.S. at 837; id. at 844 (“A prison official’s duty under the Eighth

12 Amendment is to ensure reasonable safety.”); see also Hallinan, 2020 WL 3105094, at

13 *6 (no Eighth Amendment violation even though the facility “reported 19 inmate deaths

14 and 664 active inmate and staff infections at FCC-Butner”).

15

Petitioners also fault the BOP for not decreasing the population of FCC Lompoc,

16 but they fail to acknowledge that its population has decreased from 2,680 (Compl. ¶ 2) to

17 2,438, a decrease of 242 inmates or a 9% population reduction.5 Even without the

18 Court’s intervention, the BOP is taking its obligation to combat COVID-19 seriously,

19 including by reducing its prison population. That the BOP has not released as many

20 people as Petitioners would like does not indicate an Eighth Amendment violation. See

21 Hallinan, 2020 WL 3105094, at *16 (“the fact that respondents have not ‘maximized’

22 use of home confinement and other release provisions to reduce the FCC-Butner

23 population does not establish an Eighth Amendment violation”).

24

Petitioners cannot satisfy the objective component of an Eighth Amendment

25 violation. Indeed, the only case cited by Petitioners on this point is a district court

26 opinion issued early in the COVID-19 pandemic, Martinez-Brooks v. Easter, 2020 WL

27
5 https://www.bop.gov/locations/institutions/lom/ and
28 https://www.bop.gov/locations/institutions/lof/ (last accessed July 21 2020).

6

Case 2:20-cv-04450-CBM-PVC Document 52 Filed 07/21/20 Page 8 of 12 Page ID #:1922

1 2405350 (D. Conn. May 12, 2020). See Opp. at 17:11-12.6 But Martinez-Brooks should

2 not persuasive here because, among other things, it was premised upon the proposition

3 that the inability to stay six feet apart at all times was a per se Eighth Amendment

4 violation, which has been squarely rejected by other courts such as Wragg v. Ortiz, 2020

5 WL 2745247 at *22. Moreover, Martinez Brooks noted the factual dispute over

6 conditions precluded the court from making a finding on deliberate indifference and the

7 court denied the TRO on the Eighth Amendment claim. 2020 WL 2405350 at *29.

8 Respondents request that the Court find that compliance with CDC recommendations,

9 including “access to soap, tissues, gloves, masks, regular cleaning, signage and

10 education, quarantine of new prisoners, and social distancing during transport” satisfies

11 the objective component of the Eighth Amendment. Valentine, 956 F.3d at 801-02;

12 Chunn v. Edge, 2020 WL 3055669, at *1 (E.D.N.Y. Jun. 9, 2020) (“Rather than being

13 indifferent to the virus, MDC officials have recognized COVID-19 as a serious threat

14 and responded aggressively.”); Grinis v. Spaulding, 2020 WL 2300313, at *3 (D. Mass.

15 May 8, 2020) (“Both the BOP and FMC Devens have made significant changes in

16 operations in response to COVID-19.”).

17

b. Petitioners Have Not Sufficiently Alleged the Subjective Prong

18

of the Deliberate Indifference Test

19

The Complaint acknowledges the many steps that the BOP took to address

20 COVID-19, including mass testing, the provision of masks to inmates and correctional

21 officers, and the cohorting and quarantining of inmates. See MTD at 3:2-4:9. Despite

22 acknowledging (in no less than 20 places) the efforts the BOP has undertaken at

23 Lompoc, Petitioners hyperbolically mischaracterize Respondents actions as an 24 “unprecedented failure to control or even slow the outbreak in any way, shape, or

25
6 The other cases cited by Petitioners did not involve convicted prisoners. See Fraihat v. U.S.
26 Immigration and Customs Enforcement, 2020 WL 1932570, at *1 (C.D. Cal. Apr. 20, 2020) (involving
immigration detainees); Basank v. Decker, 2020 WL 1481503, at *1 (S.D.N.Y. Mar. 26, 2020) (same).
27 The Eighth Amendment does not apply to immigration detainees. See Cameron, 2020 WL 3867393, at
*4 (“For prisoners incarcerated following a conviction, the government’s obligation arises out of the
28 Eighth Amendment’s prohibition on cruel and unusual punishment.”) (citation omitted).

7

Case 2:20-cv-04450-CBM-PVC Document 52 Filed 07/21/20 Page 9 of 12 Page ID #:1923

1 form.7” Opp. 22:14-15. However, COVID-19 prison jurisprudence is clear that there is

2 no Eighth Amendment deliberate indifference claim where prison officials respond

3 reasonably to this novel pandemic and have held that efforts identical to what the BOP

4 has done at FCC Lompoc do not constitute deliberate indifference. MTD at 15:1-16:26.

5 See Swain v. Junior, –F.3d–, 2020 WL 3167628, at *6 (11th Cir. Jun. 15, 2020) (no

6 Eighth Amendment liability if prison officials respond reasonably to a risk to inmate

7 health, “even if the harm ultimately was not averted”); Wilson v. Williams, –F.3d–, 2020

8 WL 3056217 at *7-8 (6th Cir. Jun. 9, 2020) (no tenable Eighth Amendment claim where

9 BOP had responded reasonably to the risk of COVID-19 at FCI Elkton by implementing

10 the same BOP Action Plan used at FCC Lompoc); Valentine v. Collier, 956 F.3d 797,

11 801 (5th Cir. 2020) (“after accounting for the protective measures [the prison] has taken,

12 the Plaintiffs have not shown a substantial risk of serious harm that amounts to cruel and

13 unusual punishment”). Petitioners do not attempt to explain why the three circuit-level

14 decisions are distinguishable, thereby conceding that they should be controlling here.

15

Petitioners also contend that Chunn and Grinis are distinguishable because of the

16 number of inmates infected. Opp. at 22:22-23:11. This factual difference, however, is not

17 determinative because numerous courts have found that whether the harm is averted or

18 not does not make an Eighth Amendment violation. See MTD at 14:15-18. Finally, as

19 stated above, Hallinan found no Eighth Amendment violation even though there had

20 been 19 inmate deaths from COVID-19. 2020 WL 3105094, at *6.

21

In short, Petitioners cannot show that BOP officials had a “sufficiently culpable

22 state of mind,” that they “kn[ew] of and disregard[ed] an excessive risk to inmate health

23 or safety,” and acted with “the unnecessary and wanton infliction of pain.” Farmer, 511

24

25

7 Petitioners inflammatorily suggest that Mamadou Kaba’s death was a COVID-19 death and

that the BOP’s investigation into the cause of his death is tantamount to “refusing to disclose the cause

26 of death or to even state that it was not due to COVID-19.” Opp., 21 at 9-14. Petitioners also

mischaracterize Judge Fitzgerald’s Order Denying Temporary Restraining Order as making a finding

27 regarding deliberate indifference and do not mention that Judge Fitzgerald denied, in part, their second

attempt to obtain a TRO at Terminal Island, and has instead ordered that a neutral assess the conditions

28 at FCI Terminal Island before ruling on the Eighth Amendment claim. See Wilson v. Ponce, DE 58 at

12-13.

8

Case 2:20-cv-04450-CBM-PVC Document 52 Filed 07/21/20 Page 10 of 12 Page ID #:1924

1 U.S. at 833, 837; Whitley v. Albers, 475 U.S. 612, 619 (1986) (citation omitted).

2 Petitioners cannot show that the BOP acted with “obduracy and wantonness,” as opposed

3 to “inadvertence or error in good faith, that characterize the conduct prohibited by the

4 Cruel and Unusual Punishments Clause.” Wilson, 501 U.S. at 299. Nor can Petitioners

5 show that that the BOP’s “current attitudes and conduct” amount to reckless disregard.

6 See Toguchi, 391 F.3d at 1060. To the contrary, Petitioners admit that the BOP

7 “[a]ttempted to ‘solve’ the overcrowding and communal housing issues”; conducted

8 testing; and considered home confinement for some inmates. Opp. at 18:26-19:23; see

9 also MTD at 3:8-4:9. Respondents recognize that Petitioners are dissatisfied with these

10 efforts, but dissatisfaction does not rise to an Eighth Amendment violation. Indeed,

11 nearly all federal courts have concluded that an Eighth Amendment violation could not

12 lie where prison officials responded reasonably to the COVID-19 crisis with steps

13 substantially similar to what the BOP has done at FCC Lompoc.

14

For these reasons, Petitioners’ Eighth Amendment claim should be dismissed.

15

2. The Eight Amendment Claims Should Be Dismissed Because

16

Petitioners Have Failed to Satisfy PLRA Exhaustion Requirements

17

Petitioners seek to avoid dismissal by ignoring the cases in the COVID-19 context

18 holding that exhaustion under the PLRA is required before inmates may bring suit

19 concerning prison conditions. See e.g., Valentine, 956 F.3d at 805 (rejecting inmates’

20 exhaustion arguments and noting that administrative “relief by [the prison] remains

21 possible (and the procedure available), even if [the prison] has not acted as swiftly as

22 Plaintiffs would like”); Swain, 2020 WL 3167628, at *1; Wragg, 2020 WL 3074026, at

23 *2 (D.N.J. Jun. 10, 2020).

24

Petitioners cite Jones v. Bock, 549 U.S. 199, 216 (2007) for the proposition that

25 exhaustion is an affirmative defense. Opp. at 25:6-9. Jones, however, noted that if

26 grounds for dismissal appears on the face of a complaint, it is still subject to dismissal

27 under Fed. R. Civ. P. 12(b)(6) and that its holding “is not to say that failure to exhaust

28 cannot be a basis for dismissal for failure to state a claim.” Jones, 549 U.S. at 216.

9

Case 2:20-cv-04450-CBM-PVC Document 52 Filed 07/21/20 Page 11 of 12 Page ID #:1925

1 Moreover, an inmate’s concession as to nonexhaustion is a valid ground for dismissal so

2 long as no exception to exhaustion applies and a court may even dismiss an action sua

3 sponte for failure to exhaust administrative remedies. Govind v. Cash, 2013 WL

4 5220809 at *7 (C.D. Cal. Sept. 10, 2013). The cases Petitioners cite do not support the

5 proposition that administrative remedies are not available at FCC Lompoc. Sapp v.

6 Kimbrell, 62 F.3d 813, 826 (9th Cir. 2010), held that the prison’s screening of the

7 prisoner’s grievance was proper, administrative remedies were available, and the

8 prisoner’s suit was barred by failure to exhaust under the PLRA. See Opp. at 24:6-14.

9 Petitioners also quote Justice Sotomayor’s statement made in connection with the

10 Court’s denial of an application to stay a preliminary injunction in Valentine v. Collier,

11 140 S. Ct. 1598, 1601 (2020). Opp. at 24:23-25:3. Justice Sotomayor’s statement is not a

12 holding and merely states that it is possible that grievance procedures could constitute a

13 dead-end such that exhaustion is not required.

14

Although Petitioners contend that that they have adequately alleged that

15 administrative remedies are unavailable (id. at 19:18-20:6), their allegations do not

16 support this contention. There is four-tiered administrative remedy process available. 28

17 C.F.R. §§ 542.10-542.19. Petitioners have not alleged that they ever requested an

18 informal resolution related to the administrative remedy process and were denied.

19 Inmates are automatically considered for referral to home confinement, whether inmates

20 specifically request it or not. See Dkt. No 25 at 32:11-13. To suggest that the BOP’s

21 automatic consideration of inmates for referral to home confinement means that

22 exhaustion as to prison conditions is unavailable (so as to circumvent PLRA exhaustion

23 requirements) is unavailing. None of the named Petitioners alleges he sought to pursue

24 the formal administrative remedy process and that FCC Lompoc interfered with that

25 attempt, rendering administrative remedies “effectively unavailable.”

26

Petitioners’ admitted failure to satisfy the exhaustion requirement under the PLRA

27 is another reason why their Eighth Amendment claims should be dismissed.

28

10

Case 2:20-cv-04450-CBM-PVC Document 52 Filed 07/21/20 Page 12 of 12 Page ID #:1926

1 III. CONCLUSION

2

For the foregoing reasons, the Respondents respectfully request that the Court

3 dismiss Petitioners’ Complaint.

4 Dated: July 21, 2020

Respectfully submitted,

5

NICOLA T. HANNA

United States Attorney

6

DAVID M. HARRIS

Assistant United States Attorney

7

Chief, Civil Division

JOANNE S. OSINOFF

8

Assistant United States Attorney

Chief, General Civil Section

9

10

/s/ Keith M. Staub

KEITH M. STAUB

11

CHUNG H. HAN

JASMIN YANG

12

DAMON A. THAYER

13

PAUL B. GREEN Assistant United States Attorney

14

Attorneys for Respondents

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 2:20-cv-04450-CBM-PVC Document 99 Filed 09/18/20 Page 1 of 9 Page ID #:3773

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 Torres et al.,

12

Plaintiff-Petitioners,

v. 13

Milusnic et al., 14

Defendant-Respondents. 15

Case No.: CV 20-4450-CBM-PVC(x)
ORDER RE: RESPONDENTS’ MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B)(1) AND 12(B)(6) [36]

16

17

The matter before the Court is: Respondents’ Motion to Dismiss Under

18 Fed. R. Civ. P. 12(b)(1) and 12(b)(6). (Dkt. No. 36.) The matter is fully briefed.

19

I. BACKGROUND

20

This action is brought on behalf of inmates at FCI Lompoc and USP

21 Lompoc (collectively, “Lompoc”) challenging the Director of the Bureau of

22 Prisons (“BOP”) and Warden of Lompoc’s response during the COVID-19

23 pandemic. The Complaint asserts two causes of action: (1) Unconstitutional

24 Conditions of Confinement in Violation of the Eighth Amendment to the U.S.

25 Constitution pursuant to 28 U.S.C. §§ 2241, 2243; (2) and Unconstitutional

26 Conditions of Confinement in Violation of the Eighth Amendment to the U.S.

27 Constitution pursuant to U.S. Const, Amend. VIII; 28 U.S.C. § 1331; 5 U.S.C. §

28 702, “Injunctive Relief Only.”

1

Case 2:20-cv-04450-CBM-PVC Document 99 Filed 09/18/20 Page 2 of 9 Page ID #:3774

1

On July 14, 2020, the Court granted Petitioners’ motion for a preliminary

2 injunction1 to expedite review and determination of eligibility of Lompoc inmates

3 for home confinement and compassionate release giving substantial weight to the

4 inmate’s risk factors for severe illness or death from COVID-19 based on age or

5 underlying health conditions. (Dkt. No. 45 (the “Preliminary Injunction Order”).)

6 The Court denied Petitioners’ motion for a preliminary injunction regarding

7 improved conditions for inmates remaining at Lompoc in light of COVID-19

8 based on disputed facts as to the safety measures implemented at Lompoc and

9 because Petitioners did not establish Respondents have the necessary state of mind

10 to satisfy the subjective deliberate indifference prong as to the safety measures

11 implemented to protect inmates from COVID-19. (Id.) Respondents now move to

12 dismiss Petitioners’ claims for lack of jurisdiction and failure to state a claim

13 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

14

II. STATEMENT OF THE LAW

15 A. Federal Rule of Civil Procedure 12(b)(1)

16

On a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction,

17 the party asserting jurisdiction bears the burden of proof jurisdiction exists. Sopak

18 v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995). A

19 motion under Rule 12(b)(1) may challenge the court’s jurisdiction facially, based

20 on the legal sufficiency of the claim, or factually, based on the legal sufficiency of

21 the jurisdictional facts. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). If the

22 court determines at any time that it lacks subject-matter jurisdiction, it must

23 dismiss the action. Fed. R. Civ. P. 12(h)(3).

24 B. Federal Rule of Civil Procedure 12(b)(6)

25

A court may dismiss a complaint for “failure to state a claim upon which

26

27 1 The parties agreed to convert Petitioners’ Ex Parte Application for Temporary Restraining Order to an expedited motion for preliminary injunction. (Dkt. Nos.
28 41, 42.)

2

Case 2:20-cv-04450-CBM-PVC Document 99 Filed 09/18/20 Page 3 of 9 Page ID #:3775

1 relief can be granted” pursuant to Federal Rule of Civil Procedure 12(b)(6). To

2 survive a motion to dismiss pursuant to Rule 12(b)(6), the Complaint “must

3 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

4 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell

5 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A formulaic recitation of

6 the elements of a cause of action will not suffice. Twombly, 550 U.S. at 555.

7

III. DISCUSSION

8 A. Law of the Case

9

As a preliminary matter, Petitioners contend Respondents’ instant Motion

10 raises substantively identical arguments raised by Respondents in opposition to

11 Petitioners’ motion for preliminary injunction, which was granted by this Court,

12 and therefore Respondents’ Motion to Dismiss should be denied under the law of

13 the case doctrine. To the extent Respondents raise identical arguments on pure

14 issues of law previously ruled on by the Court in its Preliminary Injunction Order,

15 the law of the case doctrine applies. See Ranchers Cattlemen Action Legal Fund

16 United Stockgrowers of Am. v. U.S. Dep’t of Agr., 499 F.3d 1108, 1114 (9th Cir.

17 2007) (While the general rule is that “decisions at the preliminary injunction phase

18 do not constitute the law of the case,” “conclusions on pure issues of law . . . are

19 binding.”). The Court has identified pure legal issues where the law of the case

20 doctrine applies. (See infra.)

21 B. Habeas Claim (First Cause of Action)

22

Respondents move to dismiss Petitioners’ habeas claim pursuant to 28

23 U.S.C. § 2241 for alleged violation of the Eighth Amendment on the ground this

24 Court lacks subject matter jurisdiction over that claim.

25

Respondents contend Petitioners do not assert a cognizable habeas claim.

26 The Court’s finding in its Preliminary Injunction Order that Petitioners assert a

27 proper habeas claim challenging the fact of their confinement constitutes binding

28 law of the case. (See Dkt. No. 45.) Ranchers Cattlemen, 499 F.3d at 1114. A

3

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1 writ of habeas corpus extends to a prisoner “in custody in violation of the

2 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241. The sole

3 federal remedy for a prisoner challenging the “fact or duration” of imprisonment is

4 a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). Here,

5 Petitioners challenge the fact of their confinement because they assert there are no

6 set of conditions of confinement that could be constitutional. Therefore,

7 consistent with the Court’s Preliminary Injunction Order, the Court finds

8 Petitioners assert a proper habeas claim pursuant to 28 U.S.C. § 2241 challenging

9 the fact of their confinement. (See Dkt. No. 45.)2

10

Having found Petitioners assert a proper habeas claim pursuant to § 2241

11 challenging the fact of their confinement, Petitioner’s habeas claim is not

12 foreclosed by the PLRA. See 18 U.S.C. § 3626(g)(2); Wilson v. Williams, 2020

13 WL 3056217, at *6 (“Because petitioners’ claims are properly brought under §

14 2241, the BOP’s argument that the claims are foreclosed by the PLRA fails. The

15 PLRA does not apply in habeas proceedings.”).

16

Respondents also argue this Court does not have the authority to place an

17 inmate on home confinement because the BOP has sole discretion over inmate

18 placement discretions. However, Petitioners seek an order requiring Respondents

19

20 2 See Wilson v. Williams, 961 F.3d 829, 838 (6th Cir. 2020) (petitioners’ claims were properly brought under § 2241 where they alleged there are no conditions of
21 confinement sufficient to prevent irreparable constitutional); Martinez-Brooks v. Easter, 2020 WL 2405350, at *16 (D. Conn. May 12, 2020) (petitioners’ claim
22 was a proper habeas claim because they “contend[ed] that the fact of their confinement in prison itself amounts to an Eighth Amendment violation under
23 these circumstances, and nothing short of an order ending their confinement at FCI Danbury will alleviate that violation.”); Malam v. Adducci, 2020 WL
24 1672662, at *3 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (noting “where a petitioner claims no set of conditions would be sufficient to protect her
25 constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable in habeas,” and finding
26 because petitioner claimed “no matter what steps are taken, due to her underlying serious health conditions, there is no communal holding facility where she could
27 be incarcerated during the Covid-19 pandemic that would be constitutional[,] Petitioner’s claim must therefore be considered as a challenge to the continued
28 validity of confinement itself”).

4

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1 to expedite review and determination of eligibility of Lompoc inmates for home

2 confinement and compassionate release which gives substantial weight to the

3 inmate’s risk factors for severe illness or death from COVID-19. Petitioners do

4 not seek an order from this Court placing inmates on home confinement or

5 granting compassionate release.

6

Accordingly, the Court denies Respondents’ motion to dismiss Plaintiff’s

7 habeas claim.

8 C. Non-Habeas Eighth Amendment Claim (Second Cause of Action)

9

Respondents move to dismiss Petitioners’ non-habeas Eighth Amendment

10 conditions of confinement claim on the ground: (1) Petitioners cannot

11 demonstrate they are subject to an unreasonable risk of harm; and (2) the

12 Complaint’s allegations to not support a finding of deliberate indifference.

13

“[T]he Eighth Amendment applies to conditions of confinement that are

14 not formally imposed as a sentence for a crime.” Helling v. McKinney, 509 U.S.

15 25, 29 (1993). The Supreme Court has recognized that the Eighth Amendment

16 “requires that inmates be furnished with the basic human needs, one of which is

17 ‘reasonable safety,’” and “[i]t is “cruel and unusual punishment to hold convicted

18 criminals in unsafe conditions.” Id. at 33 (citations omitted). Such Eighth

19 Amendment claims are analyzed through a two-pronged inquiry. Id. at 35-37.

20 Under the objective prong, the prisoner must establish “society considers the risk

21 that the prisoner complains of to be so grave that it violates contemporary

22 standards of decency to expose anyone unwillingly to such a risk. In other words,

23 the prisoner must show that the risk of which he complains is not one that today’s

24 society chooses to tolerate.” Id. at 36. The subjective prong “requires an inquiry

25 into the prison officials’ state of mind” based on the “deliberate indifference”

26 standard. Id. at 32. A prison official is deliberately indifferent if he “knows of

27 and disregards an excessive risk to inmate health or safety; the official must both

28 be aware of facts from which the inference could be drawn that a substantial risk

5

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1 of serious harm exists, and he must also draw the inference.” Farmer v. Brennan,

2 511 U.S. 825, 837 (1994).

3

As to the objective prong, the Complaint alleges:

4

1. “[T]he novel coronavirus that causes COVID-19 has led to a

5

global pandemic”;

6

2. National, state and local officials have declared emergencies in light of the pandemic;

7

3. As of May 15, 2020, there are over 4.3 million reported cases

8

of COVID-19 and 297,241 related deaths worldwide, 1,412,121 cases and 885,990 deaths in the U.S., and 74,936

9

cases and 3,108 deaths in California;

10

4. “The virus is known to spread from person to person through respiratory droplets, close personal contact, and from contact

11

with contaminated surfaces and objects”;

12

5. “Infected people can spread the virus to others even if they are asymptomatic”;

13

6. “[P]eople who suffer from certain underlying medical

14

conditions” and older populations are at increased risk of illness or death from COVID-19;

15

7. “[T]here is no known medication to prevent or treat infection

16

from COVID-19,” and “[s]ocial distancing, or remaining physically separated from known or potentially infected

17

individuals, and vigilant hygiene, including frequently and thoroughly washing hands with soap and water and cleaning

18

and disinfecting high-touch surfaces, are the only known effective measures for protecting people from COVID-19”;

19

8. Persons in confined spaces such as correctional facilities face

20

increased danger of contracting COVID-19;

21

9. More than 1,000 Lompoc inmates have tested positive for COVID-19;

22

10. Petitioners and other Lompoc inmates are at “high risk of harm

23

due to their age and health status” if infected with COVID-19 and are likely to be infected with COVID-19 absent immediate

24

action to protect inmates and reduce the inmate population; and

25

11. Despite the CARES Act, Respondents “are refusing to consider home confinement for the vast majority of those incarcerated at

26

Lompoc,” and “have failed to conduct timely testing, provide adequate PPE, or effectively isolate those who are infected and

27

those who have had contact with the infected” with COVID19.

28

6

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1 (Compl. ¶¶ 1-80.) Therefore, Petitioners plead sufficient facts to satisfy the

2 objective prong by alleging Petitioners and other Lompoc inmates are at

3 substantial risk of exposure to COVID-19, which is inconsistent with

4 contemporary standards of human decency. See Helling, 509 U.S. at 32-35

5 (inmates could state a claim under the Eighth Amendment regarding exposure to a

6 serious, communicable disease).3

7

As to the subjective prong, the Complaint alleges: (1) Respondent Louis

8 Milusnic, the Warden at Lompoc, “is aware of and has adopted and enforced

9 policies that leave Petitioners and all those similarly situated exposed to infection,

10 severe illness, and death due to COVID-19,” and has “declined to release people

11 who qualify under BOP and Department of Justice guidance despite having the

12 authority to do so” (Compl. ¶ 15); and (2) Respondent Michael Carvajal, the

13 Director of the Federal Bureau of Prisons, “is aware of and has adopted and

14 enforced policies that leave Petitioners and all those similarly situated exposed to

15 infection, severe illness, and death due to COVID-19” (id. ¶ 16). The Complaint

16 also alleges despite the CARES Act which “gave Respondents and the BOP the

17 broad discretion to allow home confinement and reduce crowding at prisons

18 during the COVID-19 emergency period,” and despite “the guidance of Attorney

19 General William Barr urging the BOP to immediately transfer medically ‘at-risk’

20 prisoners to home confinement, Respondents are refusing to consider home

21 confinement for the vast majority of those incarcerated at Lompoc” and “have

22 failed to conduct timely testing, provide adequate PPE, or effectively isolate those

23 who are infected and those who have had contact with the infected.” (Id. ¶ 5.)

24 3 See also Wilson v. Williams, 2020 WL 3056217, at *7 (petitioners demonstrated
25 they are “incarcerated under conditions posing a substantial risk of serious harm” to satisfy objective prong of Eighth Amendment claim, finding “[t]he
26 transmissibility of the COVID-19 virus in conjunction with Elkton’s dormitorystyle housing—which places inmates within feet of each other—and the
27 medically-vulnerable subclass’s health risks, presents a substantial risk that petitioners at Elkton will be infected with COVID-19 and have serious health
28 effects as a result, including, and up to, death”).

7

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1 Therefore, Petitioners plead sufficient facts to satisfy the subjective prong for their

2 non-habeas Eighth Amendment claim by alleging Respondents have ignored, and

3 therefore have been deliberately indifferent, to the known risk of inmates’

4 exposure to infection, severe illness, and death due to COVID-19 based on the

5 conditions at Lompoc, and the known urgency to consider inmates for home

6 confinement, particularly those most vulnerable to severe illness or death if they

7 contract COVID-19, in failing to make prompt and meaningful use of home

8 confinement and disregarding inmates’ underlying health conditions in

9 determining eligibility for home confinement.4

10

Accordingly, Respondents’ motion to dismiss Petitioners’ non-habeas

11 Eighth Amendment claim is denied.

12 D. Exhaustion of Administrative Remedies

13

Respondents also contend Petitioners have failed exhaust administrative

14 remedies for their claims. However, the Complaint alleges “since the COVID-19

15 outbreak in Lompoc, those incarcerated have been denied access to the

16 administrative remedy process,” and “[s]taff have not been accepting the forms

17 required to initiate the process, claiming they cannot do so due to the exigency of

18 the COVID-19 pandemic.” (Compl. ¶¶ 13, 14.) Therefore, Petitioners plead

19 sufficient facts demonstrating exhaustion is excused because administrative

20 4 See Farmer, 511 U.S. at 825 (“A prison official may be held liable under the
21 Eighth Amendment for acting with ‘deliberate indifference’ to inmate health or safety only if he knows that inmates face a substantial risk of serious harm and
22 disregards that risk by failing to take reasonable measures to abate it.”); see also Wilson v. Williams, 2020 WL 3056217, at *14 (Cole, Dissenting) (The BOP’s
23 failure to make use of its home confinement authority at Elkton, “constitutes sufficient evidence for the district court to have found that petitioners were likely
24 to succeed on their Eighth Amendment claim”); Martinez-Brooks, 2020 WL 2405350, at *23, *26 (noting the “Eighth Amendment requires that [the
25 determination of whether to place an inmate on home confinement] be made promptly,” and finding petitioners showed a likelihood of success on the merits on
26 their Eighth Amendment claim with respect to the medically vulnerable subclass because the Danbury Warden “has disregarded a ‘substantial risk of serious harm’
27 by ‘failing to take reasonable measures to abate it’” by “failing to make meaningful use of her home confinement authority”) (quoting Farmer, 511 U.S. at
28 847).

8

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1 remedies are not available. See Williams v. Paramo, 775 F.3d 1182, 1191-92 (9th

2 Cir. 2015) (petitioner showed administrative remedies were not available where

3 she tried informing an officer about her claim but “he did not help her” and told

4 her it was “not [his] problem,” and she “attempted to file a grievance and an

5 appeal” with an officer “who rejected the grievance and refused to file the

6 appeal”). Moreover, the “failure to exhaust is an affirmative defense under the

7 PLRA, and . . . inmates are not required to specially plead or demonstrate

8 exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007).

9

IV. CONCLUSION

10

Accordingly, the Court DENIES Respondents’ Petitioners’ Motion to

11 Dismiss Under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

12

13

IT IS SO ORDERED.

14

15 DATED: September 18, 2020. 16 17

CONSUELO B. MARSHALL UNITED STATES DISTRICT JUDGE

18

19

20

21

22

23

24

25

26

27

28

9

 Case 2:20-cv-04450-CBM-PVC Document 101-1 Filed 09/25/20 Page 1 of 31 Page ID #:3791
Venters-BOP Lompoc
COVID-19 Inspection of BOP Lompoc by Dr. Homer Venters

A. Table of Contents
Introduction Methodology Inspection Findings Summary Appendix 1. Information reviewed

Page 1 Page 2 Page 4 Page 18 Page 28 Page 31

B. Introduction 1. This report is submitted to The Honorable Consuelo B. Marshall, United States District Court
Judge, Central District of California in response to an order to perform a COVID-19 inspection of the Federal Bureau of Prisons facility Lompoc. This order relates to case CV 20-4450-CBM(PVCx) Torres et al. v. Milusnic et al. 2. This facility inspection was ordered by The Court on August 12th, 2020. 3. The COVID-19 pandemic has caused over 100,000 documented cases of infection in U.S. prisons, including facilities of the U.S. Bureau of Prisons (BOP), since March 2020. The pace of this pandemic in U.S. prisons has increased in recent weeks after a slowing in June. In the BOP, over 13,000 cases were reported by September 1, 2020, with a case rate of 849 per 100,000 prisoners across all BOP facilities.1 The rate and pace of infection has varied widely across the BOP system’s 122 correctional facilities, with confirmed cases in 112 and a total number of infections of 1,752 federal inmates and 643 BOP staff, resulting in 118 prisoner and 2 staff deaths.2

1 https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons, accessed 9/7/20. 2 US BOP COVID Data. https://www.bop.gov/coronavirus/ accessed 9/5/20.
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4. The COVID-19 outbreak at BOP Lompoc has been one of the nation’s most overwhelming. BOP data on September 1, 2020, identified 953 detained people as ‘recovered’ from COVID-19 and three as actively infected. Four people were reported to have died from COVID-19 related illness. The census of the BOP Lompoc facility was approximately 2,200 at the time.
5. In July 2020, the Office of the Inspector General of the U.S. Department of Justice released a report on the COVID-19 response at BOP Lompoc.3 This remote inspection identified several areas of deficiency in the response, including inadequate staffing of health and correctional staff, lack of adequate testing and screening of detained people, inadequate leadership, shortage of personal protective equipment and extremely limited use of home confinement as an alternative for high-risk people.
C. Methodology 6. The goal of my inspection of BOP Lompoc was to assess the adequacy of the facility response to
COVID-19. In order to achieve this goal, I relied on three basic questions; a. Does the facility adequately identify and respond to individual cases of COVID-19? b. Does the facility adequately implement infection control, social distancing and other measures to slow the spread of the virus? c. Does the facility adequately identify and protect high-risk patients?
These questions are interrelated in that all three domains are essential to an adequate COVID-19 response and they rely on each other to be effective. Adequacy is determined using guidelines of the Centers for Disease Control and Prevention (CDC) relating to COVID-19 in detention settings
3 DEPARTMENT OF JUSTICE | OFFICE OF THE INSPECTOR GENERAL PANDEMIC RESPONSE REPORT 20-086 JULY 2020. https://oig.justice.gov/sites/default/files/reports/20-086.pdf?_ga=2.124398604.740363991.1599381764829252430.1596389882 accessed 9/13/20.
2

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as well as basic correctional health standards.4 Policies reported or produced by the Bureau of Prisons have also been utilized to assess adequacy, and many of the questions I posed to detained people and staff during the inspection were framed to elicit their understanding of the policies in place and whether/how they were being implemented. The adequacy of the BOP Lompoc response to COVID-19 is presented below in ‘Findings’ which includes strengths, deficiencies and recommendations. 7. Communication regarding the information I required to conduct this inspection, as well as the timing and logistics of the inspection included attorneys from both respondents and plaintiffs. My actual inspection occurred on September 1st and 2nd 2020. During the inspection, I posed multiple questions about information that the BOP/PHS team indicated they would best be able to respond to in writing. I submitted a list of these questions after my inspection and the information was produced to me between September 7th and September 24th 2020. The list of information I reviewed for this report is contained below in Appendix 1. 8. Physical inspection of BOP Lompoc was conducted with facility leadership and staff and without attorneys for either the respondents or plaintiffs. Facility staff took photographs of areas I requested and produced them afterwards on a secure platform, along with responses to questions that arose during the inspection that required verification, and supplemental communication from detained people who I was unable to speak with due to time constraints. 9. During the inspection, BOP Lompoc staff did not block or impede my access to any part of the facility and were extremely helpful in orienting me to the overall layout and operations of the facility, the various measures taken in response to COVID-19 and the current status of COVID19 mitigation efforts.
4 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention
Facilities. Updated July 22, 2020. https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/index.html, accessed 9/13/20.
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D. Inspection 10. The Lompoc inspection was conducted over two days, September 1st and 2nd. The BOP Lompoc
complex is comprised of three administrative areas, FCI Lompoc, also referred to as ‘the Low’ because of its low security status, USP Lompoc, also referred to as ‘the Medium’, for the same reason, and two camp areas, North and South Camps. The first day of inspection focused on FCI Lompoc (the Low) and the second on USP Lompoc (the Medium) and the two camp areas. During this time, I spoke with 52 detained people and approximately 25 staff members. In most housing areas, there were many more people seeking to speak about their COVID-19 experiences than time allowed for. BOP staff and I agreed that people who I did not have time to speak with could submit written information that would be provided to me. I received four such written communications. In each facility, I was accompanied by a BOP/PHS team that included one or more leadership and staff from the specific facility as well as a Public Health Service Officer who provided information on the overall COVID-19 response and how each facility implemented BOP COVID-19 policies and a BOP who took photos and notes. The facility Warden and Heath Service Administrator were present intermittently during the inspection. 11. The first area of inspection was the staff screening process, located at the facility training center. The BOP/PHS team indicated that every staff member was screened daily at this site before starting work. The screening area was a large lobby and followed a L-shaped path that was approximately 40 feet on each side, with two primary stops, one for temperature screening and one for symptom screening. A final check with security occurred with a wrist band being given for anyone who cleared screening, and the wrist bands were different colors for the two days of my inspection. Written record of each individual screening was created. 12. The first facility with detained people that I inspected was FCI Lompoc also referred to as ‘the Low’. The BOP/PHS team indicated that 1020 people were detained at the time of my inspection, and that no medical isolation or medical quarantine was being conducted in this facility. The BOP/PHS team stated that three detained people were in medical isolation for COVID-19 and
4

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that two or three staff were currently diagnosed with COVID-19. I was also told that new admissions to the overall complex had restarted, and that the new admission quarantine process, like other quarantine and medical isolation, occurred at USP Lompoc/the Medium. Before starting the inspection, I went through the fit testing process for N95 mask use. The officer who performed the fit testing closely followed the written prompts and script in his possession and the equipment and supplies he utilized were clean and it only took a few minutes for him to bring them to a room in the facility to perform the test. His supervisor indicated that all staff, security and health, were fit tested for N95 mask use. 13. Prior to inspecting housing areas, I asked the BOP/PHS team how many high-risk patients were in this facility and the overall complex and they stated that this information was tracked on a COVID-19 spreadsheet that would be provided to me but that they were not certain about exact numbers or proportions. I then asked how many people who had been diagnosed with COVID-19 had ongoing or lingering symptoms after their medical isolation was complete. The staff stated that no patients had any symptoms that persisted from COVID-19 infection. When I clarified that I was asking about symptoms that persist for weeks or months after the initial infection, the staff again stated that no patients have any such symptoms. I asked whether there is a standard assessment conducted in the week or two after medical isolation release to look for ongoing symptoms, disability or other medical problems and was told that no such process exists but that existing sick call would allow for anyone to be seen within one day for any such concerns. The BOP/PHS team also indicated that all officers wear masks and ensure social distancing, but they also stated that no tracking or documentation of these tasks exists in unit logbooks or supervisor records. I was told that both mask wearing by officers and social distancing are ensured through periodic rounding by supervisors. Data supplied by the BOP/PHS team after my inspection indicates that 525 of the 1020 people detained in the Low (51.6%) meet CDC criteria for being high-risk for serious illness to death from COVID-19 infection.
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14. I asked about the use of daily COVID-19 screenings similar to what was done for staff, and the BOP/PHS team indicated that housing area screenings were only conducted in quarantine and medical isolation settings, not for housing areas without either designation. They stated that in the Low, this meant that no housing areas, including the one dorm area for people who have never tested positive for COVID-19 (J dorm), have daily screening for COVID-19. I was also told by the BOP/PHS team that any detained person who works outside their cohort or housing area is screened on daily basis by being asked questions about current symptoms of COVID-19. This process of screening every detained person who works across the various Lompoc sites, including the farm and other work areas, was repeatedly presented to me as a process that occurs without fail, and that security staff ask these questions before any detainee starts their work on a daily basis. I asked about training materials for this process and was told that none exist. I asked about logbook entries or other documentation that these screenings occur and was told that none exist.
15. I inspected the education area which did not have any detained people present, and was informed by the BOP/PHS team that if any person was suspected of having COVID-19 while in this or any other area, a ‘Strike team’ would be called to conduct high level cleaning and disinfection. This included BOP staff who work in the safety department and detained people who have additional training for responding to suspected COVID-19 cases as well as additional PPE, although they indicated that while staff have access to N95 masks, the detained people on the strike team would not have N95 masks.
16. I next inspected building B which includes several housing areas (Photos DSC 1-12). I first inspected housing area E, which the BOP/PHS team reported as housing 164 people with a capacity for 234. The BOP/PHS team explained that people in this housing area utilize a central dining hall that is cleaned by the aforementioned Strike team in between uses. They also explained that no sick call encounters occur in or on the unit and that people would submit paper requests for sick call and be seen at the medical clinic. They also confirmed that everyone in this housing area and the other housing areas, except for J dorm, had tested positive for COVID-19. I 6

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then inspected housing area D. Both housing areas are comprised of open bunks are present with bathrooms situated in between bunk areas. At the time of my inspection, most detained people and staff were wearing masks. The bunks in the sleeping areas were situated close together, approximately 5-6 feet apart, with both top and bottom bunks in use intermittently. Some bunks were arranged head to toe, either for adjacent bunks or top/bottom bunks, and some were not Floors of all areas were clean, without trash or debris. Fewer than half of bathrooms had paper towels available at the time of my inspection. All bathrooms had soap available. 17. The next area I inspected was the food service area (photos DSC 13-15). The tables in this area had tape on every other seat to indicate where people should not sit. The BOP/PHS team presented these seating arrangements as part of their efforts to promote social distancing. The tape appeared to be freshly applied. 18. I subsequently inspected the Gym area of the Low (photos DSC 0017-0028), which the BOP/PHS team explained served as a housing area for approximately 25 high-risk patients in August. The sequence of events that led to placing high-risk patients into the gym involved testing in early May which identified most people as COVID-19 positive, and the small number of COVID-19 negative people were placed into building M and then building J. At some point in August, several of the people in building J building developed COVID-19 symptoms and part of the response included placing 20-25 high-risk people into the gym to keep them separate from other detained people for approximately 25 days. The gym was not in use at the time of my inspection. The shower in the gym is located inside a mop or utility closet, which is not clear from the photos. 19. The next area I inspected in the Low was J dorm, which was at approximately 2/3 capacity. This dorm was similar to the E building in terms of the bunk placement as well as the intermittent use of both top and bottom bunks and the lack of any consistency to the head to toe arrangement of adjacent or top/bottom bunks. As with E building, one of two bathrooms I inspected in J building
7

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had paper towels in the dispenser. Most detained people and staff were wearing masks as the time of my inspection and the floors in sleeping areas and bathrooms were clean and free of debris. 20. I spoke with 20 detained people in the Low and received written communication from another two. The following are COVID-19 concerns or observations that were relayed by at least two of the people I spoke with.
a. People who receive daily medications reported that they line up in very close fashion, often touching the person in front of and behind them. They explained that because they do not control the movement of others, and because they don’t want to miss their medication, they are unable to get others to space out. Nobody had ever seen a correctional officer ask or tell detained people to spread out or mention social distancing while waiting for medications.
b. People I spoke with reported that sick call requests often go unanswered and when they are seen, it is most often more than a week after reporting a medical problem. Many people also reported submitting multiple sick call requests over several weeks without being seen for the same ongoing health problem.
c. People who were held in ‘the hospital’ for medical isolation reported being seen and assessed on a daily basis, but many of those who held in other medical isolation settings reported going days in between clinical assessments. Multiple people also reported that daily COVID-19 screenings in quarantine units were often limited to temperature checks without being asked about their symptoms.
d. All of the people I spoke with in the Low had COVID-19 in the weeks or months before my visit. Approximately 1/4 of them were still experiencing symptoms of COVID-19, including shortness of breath, pain with breathing, daily headaches, ringing in the ears and weakness. None of them reported being seen after leaving medical isolation to be asked about ongoing COVID-19 symptoms or disability. Most of those who reported ongoing symptoms of COVID-19 stated that they had submitted multiple sick call 8

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requests without eliciting any response. As one person stated “I stopped putting in copouts because they told me it was just part of the COVID.” e. In units that had paper towels, detained people stated that the paper towels were made available in the days before my inspection. Posting of new COVID-19 signage and general cleaning was also reportedly done just before the inspection. f. Many of the people who reported having COVID-19 symptoms as the reason for being tested (as opposed to being tested in response to another case) reported being initially rebuffed by medical staff, being told that they had a cold, the flu or that they needed to ‘wait and see’ before being evaluated by a physician or tested. These people reported writing their COVID-19 symptoms on sick call slips and sometimes reporting to nursing staff during medication administration. They often reported receiving Tylenol and being returned to their housing area if they reported multiple COVID-19 symptoms but did not have a fever. g. Many people who told me that they were not ill at the time of their COVID-19 test reported that they had actually been sick weeks earlier. They expressed concerns that their medical records document them as asymptomatic and/or recovered, but that they had been very ill before their tests and either faced barriers to accessing testing and care or were reluctant to report being sick because they didn’t want to go into a solitary confinement setting. h. Many patients with chronic health problems, including hypertension, diabetes and asthma reported that they went many months, often more than 6, without being seen in the chronic care clinic. They stated that their medications would be renewed many times and even when having worsening symptoms of their disease, they could not be seen for chronic care issues. People with hypertension stated that their blood pressure was generally not checked in between chronic care visits, so that they went many months without knowing their blood pressure, and people with asthma reported that their peak
9

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flow measurement was not checked, either during chronic care visits or during asthma attacks. Most of the people with chronic care issues I spoke with reported that they had not had a chronic care encounter since contracting COVID-19. Most of the people I spoke with about chronic care stated that they believed that insufficient staffing caused delays in their chronic care. i. I spoke with three people who used canes or walkers and each of them expressed difficulty in the COVID-19 response, including the inability to use the shower in the gym, when housed there, as well as the need to navigate stairs to receive medications and go to meals. j. Many of the people I spoke with who were in medical isolation during the months of April, May and June reported that they were not examined regularly and that they went days in between a health professional physically examining their lungs or doing any assessment other than a temperature check. One man who reported that his COVID-19 symptoms included elevated heart rate, palpitations and shortness of breath reported that nobody ever listened to his lungs with a stethoscope while in medical isolation and that he was never given an EKG despite his heart rate being very elevated on the day he entered medical isolation. People who experienced medical isolation in the ‘hospital’ reported more regular daily assessments and access to care, while those who experienced medical isolation in various prison housing units more consistently reported barriers to assessment and care. k. Several of the people I spoke with reported that officer wearing of masks is inconsistent, with less compliance on night and weekend shifts. 21. The next area I inspected was the North and South Camp (photos DSC 29-38). I was told by the BOP/PHS team that most of the workers for the farm, transportation, safety, food service and Air Force base were housed in the Camps. The BOP/PHS team repeated their explanation from the prior day that every detained worker was screened for COVID-19 symptoms on a daily basis
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before starting work. I was told that some of these work assignments had been suspended during earlier COVID-19 response, but that most had restarted and that all would be functioning soon. I asked about documentation that the worker screening process occurred, as is the case in the staff screening area, and was told that the screenings happen without fail, but that there was no documentation. I asked about high heat days (housing area temperatures greater than 87’f) and heat sensitivity for people with chronic health problems, and the potential interaction between heat stress/stroke and COVID-19 in these groups of people, and was told that BOP Lompoc does not experience any high heat days. The North Camp was reported to have one dorm, with 101 people currently housed, and the South Camp, two dorms with a total of 185 people, and both camps at approximately 50% overall capacity. 22. These dorms were large open areas, each with capacity for 160-190 people. In the middle of the North Camp dorm, a computer/phone area was present with a bottle of cleaning or disinfecting spray present at every terminal or phone. The living spaces and bathrooms were clean of debris on the floor and the individual some bunks were arranged head to toe to the closest bunk and others were not. Every bunk in the North Camp had a bottle of cleaning solution hanging from the frame. 23. After the North Camp dorm, I inspected the programs area, which was not being utilized at the time. After inspecting the South Camp dorms, I inspected the dining hall. This area was utilized for housing of detained people and multiple detained people reported to me that this dining hall had been closed prior to COVID-19 due to mold or other health issues. The BOP/PHS team stated that the dining hall had been closed for renovations and in the response to my request for any documentation of mold or other health risks in this dining hall, the BOP stated that they had no records of any such concern. 24. I then inspected the medical clinic where sick call and chronic care encounters for both Camps occur. The clinic included several examination rooms and a pharmacy window that was presented as the spot where people que to receive their medications. The Health Services Administrator
11

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(HSA) explained that both Camps were transitioning to a sick call box system that would not require people to physically come to the clinic to submit their sick call requests. I asked about what level of staffing was dedicated to this facility, for MD, mid-level (PA or NP) and nursing staff and was told that no set staffing level existed but that staff spent whatever time was needed to see patients. I asked of there was an average number of hours per day that nurses and other health staff were in the clinic and was told that this varies and could not be estimated. I asked about expectations for sick call response time and the HSA stated that if anyone reported a new injury or pain or any medical problem relating to a chronic care exacerbation, that they would be seen within 24 hours, not only in the Camps but throughout BOP Lompoc. I asked how sick call timeliness was monitored, including the subset of sick call requests that involve COVID-19 symptoms and was told that this is not a metric that is tracked. 25. I spoke with 22 detained people in the North and South Camps. The following are COVID-19 concerns or observations that were relayed by at least two of the people I spoke with.
a. As in the Low, most people I spoke with in the North and South Camps reported that sick call requests take more than a week for response and most of the chronic care patients I spoke with expressed frustration that they were not seen regularly. Many of the chronic care patients stated that it had been more than six months since they had been seen and that they were unable to get a response via sick call or chronic care when their disease symptoms worsened. I spoke with three people who had been injured in their work or in the housing area and who reported more than two weeks in response to sick call encounters for their injuries.
b. People I spoke with in the Camps reported having COVID-19 in the weeks or months before my visit and approximately ¼ of them reported still experiencing symptoms of COVID-19, including pain with breathing, headaches, loss of taste and smell, joint stiffness and weakness. None of them reported being seen after leaving medical isolation
12

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to be asked about ongoing COVID-19 symptoms or disability and several reported that they had submitted multiple sick call requests for these symptoms without being seen. c. Other reports from people in the Camps that echoed what people reported in the Low included the difficult initially accessing care when they became ill with COVID-19, as well as concerns about having been labelled asymptomatic when they tested positive despite actually being ill with COVID-19 weeks earlier. Multiple people also reported that daily COVID-19 screenings in quarantine units were often limited to temperature checks without being asked about their symptoms. d. Several people also expressed feeling reluctance to report their COVID-19 symptoms when they first became ill because the unit they would be transferred to was operated like solitary confinement. e. I asked people in the Camps about their work detail and whether they are screened on a daily basis for COVID-19 symptoms. Nobody reported ever having been screened as part of their work detail. f. Many of the people I spoke with in the Camps reported that officers regularly do not wear masks, including the count officers who rotate between units. None of the people I asked about medication lines reported any efforts to implement or promote social distancing while in the medication or clinic ques. g. Several people in the Camps reported intimidation from correctional officers before my inspection, including outright threats to not speak with me as well as threats of solitary confinement if masks were specifically not worn during the inspection. As with the Low, in areas with paper towels, detained people stated that the paper towels and soap were made available in the days before my inspection. 26. The next area of my BOP Lompoc inspection was the USP (United States Penitentiary) also known as ‘the Medium’. I spoke with 10 people detained in this facility and toured housing areas as well as the dedicated COVID-19 inpatient unit referred to by detained people as ‘the hospital’.
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The BOP/PHS team included facility and complex leadership and I was able to speak with the lead physician (Clinical Director) as well as the HSA during parts of this inspection. The Medium was presented as two administrative areas, the general population area, which housed 702 people at the time of my inspection and the special housing unit, or ‘SHU’ which housed 205 people. The first area of my inspection was the inpatient unit also referred by detained people as ‘the hospital’. This structure was created by completely renovating an existing space to fashion a new 12 room medical care unit with a central nursing station and surrounding rooms for patient care. This unit provided patient care between May 15 and August 31, according to the BOP/PHS team. The team stated that COVID-19 patients who required some combination of elevated medical monitoring, intravenous fluids and oxygen therapy were treated in this unit. The staff who provided this care were from a contract with an outside vendor, Unicor. At the time I inspected this unit, the staff were decommissioning the unit because no patients were housed there. The BOP/PHS team presented to me that there was no plan to utilize this unit in the coming weeks and that additional staffing resources would be required to do so. 27. The next area I inspected was the J unit, which was reported by the BOP/PHS team to have 119 people, and a capacity of 242 (photos DSC 39-45). The B range of the J unit was comprised of individual cells and a dedicated shower area. The common areas of the floors were clean of debris as were the shower areas. The BOP/PHS team indicated that most of the people on this unit were in single cells, and that anyone designated as ‘high-risk’ based on CDC criteria was in a single cell. 28. The next area I inspected was the facility intake unit (photos DSC 49-60). The BOP/PHS team explained that new admissions to anywhere in the BOP Lompoc facility would be processed in this unit and then proceed to new admission quarantine, also in the Medium, before going to their eventual housing area. The team stated that every cell would be cleaned in between intakes, so that each group of new admissions would be processed through and the cells they had been in cleaned, before another group was processed. The cleaning of these cells was done by detained
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people. When I asked whether people doing this cleaning were screened for symptoms of COVID-19 at the start of their shift, the housing area officers did not appear to be familiar with this process and the leadership interjected to say that this screening was done without fail. I asked whether the cleaning of the cells or the screening of the cleaning workers was documented in a logbook or elsewhere and was told that neither task was recorded. 29. The next area I inspected was the SHU, comprised of 6 tiers (photos DSC 61-64). Three of the tiers were in use as quarantine, presented by the team as housing quarantined people who were awaiting transfer to another facility or who were in a ‘special population’. These tiers were all comprised of cells with solid doors and the BOP/PHS team stated that whenever a food slot or doon on a cell is opened, staff don PPE. The team stated that all quarantine patients are in single cells and that none of them has access to recreation or telephone. The team also stated that at least daily, a temperature check and COVID-19 symptom screening is conducted for all detainees, usually by opening the food slot. 30. The next two areas I inspected were housing areas utilized for pre-release quarantine and medical isolation. Both areas were comprised of open bar-stock units. The BOP/PHS team described the current approach to movement in and out of the facility as a ‘test in, test out’ model in which any newly admitted person, or person set to be released would be tested twice and proceed on their path with two negative test results. People with positive tests would be transferred to medical isolation for further assessments. In the pre-release unit, the donning and doffing of PPE was set up inside the unit, near the entrance (photo DSC 0064). In the nearby housing area utilized for medical isolation, three patients were being housed as a result of active COVID-19 concerns. A purpose-built enclosure was set up outside this unit for doffing of PPE. 31. I also inspected the medical clinic area, and was able to see the examination rooms and speak to the Clinical Director and Health Service Administrator. During this discussion I asked both leaders as well as the rest of the BOP/PHS team whether the facility has a quality assurance metric that tracks timeliness with sick call requests and reports to the quarterly or monthly quality
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meetings what this tracking reveals. I asked the same question in relation to the percentage of chronic care visits that occur within prescribed timelines. I was told that there was no such tracking or reporting of either chronic care or sick call timeliness. The Clinical Director stated that he was certain that 100% of chronic care encounters occur within the prescribed timeframe based on BOP guidelines because there is a roster of chronic care encounters and he has access to this information. I then asked how the impact of staffing shortages is assessed in relation to the ability to perform sick call and chronic care encounters. The team was either unable or unwilling to identify any relationship between staffing levels and lack of timely response to sick call or chronic care. I inquired how the need for staffing was tracked in relation to the availability of staffing hours for nurses and physicians and the HSA indicated that staff were used when needed, but that there was no set matrix or number of staff hours in any of the various clinics because the needs would change from day to day. I further inquired whether an average or median number of hours needed was tracked and received the same reply, that staffing was allotted as needed but that neither the HSA nor the Clinical Director would offer an opinion about how currently unfilled lines relate to access to care. 32. During my time in USP/the Medium, I spoke with ten detained people across the housing areas that I inspected. The following represent COVID-19 related issues or concerns that at least two people reported to me;
a. At with the prior facilities, detained people reported that sick call requests regarding medical problems often go unanswered or that more than a week passes between submitting and being seen.
b. Multiple people in the USP reported that they do not have access to paper towels and must use personal towels for drying their hands after washing and that these towels are generally wet much of the time because they are used for cleaning their cells as well as personal hygiene.
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c. Patients I spoke with in the chronic care services reported that they go many months in between encounters, some reporting more than six months since being seen. Several people reported that even when their chronic health problems worsen, they may not be able to be seen. Some chronic care patients reported that filing a grievance may prompt being seen for either sick call or chronic care, but that this also brings the risk of retaliation by security staff.
d. Two people reported that their medical isolation time had been extended by approximately one week when their test results were lost.
e. Several people reported that officers in their units do not wear masks, especially on night and weekend shifts.
f. Among patients who had tested positive for COVID-19, several reported ongoing symptoms of COVID-19 including weakness and headaches. Some also reported that they had been ill months before being tested and that they were concerned that their medical records document them as asymptomatic, even though they were ill with symptoms when originally infected.
g. Threats from officers for speaking candidly with me were also reported in these discussions.
33. Across the three facilities I inspected, several people reported that cleaning of common areas is not conducted regularly and that when a potential COVID-19 case is identified, no special measures are taken in cleaning/disinfecting of the personal effects and living space of that person. These reports included either observing no cleaning/disinfecting at all, or having detained people without masks engage in cleaning/disinfecting when a potential COVID-19 case has been identified.
34. My review individual patient medical records, chronic care rosters and BOP mortality reviews reveals several concerns;
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a. Multiple patients who died from COVID-19 appear not to have received regular or timely medical assessment after being identified as ill with COVID-19. This concern includes lack of a daily health assessment while a patient has active COVID-19 symptoms so that more than 24 hours passed between documentation of worsening clinical status and the next encounter, resulting in the terminal hospitalization.
b. Access to chronic care encounters appears to occur at less frequent intervals than described by facility leadership, and reference is made to ‘annual’ chronic care encounters, including attempting to address up to six chronic diseases in such an encounter with very limited physical assessment.
c. All four of the internal mortality reviews note multiple strengths in the clinical care received by patients who died from COVID-19 and zero suggestions or recommendations for any improvement. Each of these reviews is accompanied by a one-page external consultant review that also notes no recommendations or suggestions to improve care for any of these cases.
E. Findings 35. My findings are divided into three areas; strengths deficiencies and recommendations. My
framework for evaluation is based on how the facility has responded to three areas of COVID-19 response;
a. Does the facility adequately identify and respond to individual cases of COVID-19? This area of response includes screening for new cases, response to sick call requests relating to COVID-19, as well as the practices in medical isolation once cases are identified and identification and treatment of persisting COVID-19 symptoms.
b. Does the facility adequately slow the spread of the COVID-19 virus? This area of response includes basic infection control including hand washing and drying, cleaning of common areas, social distancing and mask wearing. 18

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c. Does the facility adequately identify and protect high-risk patients? This area of response includes the use of the chronic care program and enhanced screening and infection control measures to identify, educate and care for patients before, during and after COVID-19 infection based on their increased risk of death and serious illness. This also includes efforts to secure release for high-risk patients from detention.
36. Strengths of the BOP/Lompoc COVID-19 response. a. Staff screening. The staff intake screening process located in the training center is very well-organized and includes adequate space so that staff do not bunch up during screenings, as well as paper records of each screening. Use of a single, non-custodial site allows the facility to ensure that anyone who has an elevated temperature or who has positive responses to screening questions will not proceed into a facility. b. Hospital unit. One very clear strength of the BOP Lompoc response was the creation of a dedicated unit to care for COVID-19 patients. This unit is superior to any other effort I have seen in my 12 facility COVID-19 inspections and clearly provided a higher level of care to the relatively small number of patients who were treated there. Because this unit was designed with health care delivery as the main priority, the physical plant and systems of information and care utilized ensured that patients were regularly assessed, and that when patients showed clinical worsening, staff were quickly aware and followed clear protocols concerning additional care and hospital transfer. This unit lies fallow now, reportedly because of a lack of dedicated staff and also because of an unclear clinical need. c. Screening database. The BOP/PHS team stated that they originally created a spreadsheet or tracking document to include symptoms of COVID-19 that were detected either through daily screenings in quarantine units or through sick call reports. This approach is very important because it gives the facility the ability to track the occurrence of new COVID-19 symptoms across time and location. This approach is particularly critical as a 19

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management tool in the coming months because of the impending influenza season, the restarting of new admissions and the fact that many of those originally infected are passing their 90-day mark, potentially vulnerable to a second infection. d. Testing. BOP Lompoc has significantly expanded COVID-19 testing in coordination with national BOP protocols. Key elements of this approach include testing of all potential close contacts when a new case of COVDI-19 is detected as well as a ‘test-in, test-out’ approach which is now relatively standard in prison systems. This approach involves housing newly detained people in a quarantine unit where they are offered two COVID19 tests, one near the start and a second near the end of their 14-day quarantine. A similar process is utilized for people awaiting transfer out of the facility. e. Quarterly quality meetings. I reviewed the quarterly quality report entitled ‘”Improving Organizational Performance Meeting” and find that many crucial principles of quality assurance and improvement are being utilized in BOP Lompoc. A quality improvement project on promoting adequate hand hygiene involved clear outline of goals, metrics and outcomes in the analysis of 15 health staff per month and tracked the percentage that performed proper hand hygiene. Other strengths of this report include data reporting in medication errors, dental and cancer screenings. f. PHS involvement. The PHS Officer who accompanied me during the inspection was extremely knowledgeable about every aspect of the facility COVID-19 policies and responses despite having a role that oversees multiple BOP facilities. Gaps in the implementation of those policies (below) reflect a lack of staffing and information systems, but the presence of a highly trained and engaged PHS Officer is a tremendous asset to the facility and COVID-19 patients alike. g. Housing area cleanliness and cleaning solutions. The housing areas were generally clean and free of debris during my inspection, in both living quarters and bathrooms. Cleaning solution for personal spaces also appeared abundant during the time of my inspection.
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37. Deficiencies in the BOP/Lompoc COVID-19 response. a. COVID-19 screening. Several deficiencies exist in the BOP Lompoc approach to COVID-19 screening among detained people. Taken together, these screening deficiencies increase the risk that patients will become seriously ill or die from COVID19 and also increase the potential spread of the virus. i. The most obvious screening issue is that the facility is not conducting daily COVID-19 screenings among the people who have not yet had COVID-19. The current approach of only utilizing daily screenings among staff and detainees in quarantine units leave the facility vulnerable to development of COVID-19 among people who are naïve to COVID-19. The problems with sick call (below) increase the consequences that may flow this lack of screening. ii. A second deficiency in the screening process involves detained people in work details. During both days of my inspection, the entire BOP/PHS team stated that every detained person who works outside their housing area is screened daily for COVID-19 symptoms before they start work. I asked whether any record of these screenings occurring exists, either in logbooks utilized by staff or elsewhere. I was told that there was no such documentation that these daily screenings occur, but that the leadership of the facility, including the PHS officer, were certain that these screenings occur. I spoke with numerous detained people who work outside their housing area, many of them in the North or South Camps, and none of them reported having ever been screened before work. In addition, when I asked individual officers about how this process occurs, in housing areas as well as in various areas of the facility where work might occur, none of them seemed familiar with the process. This is a critical deficiency because aside from staff, the work details are the primary potential vector for spread of COVID-19 from one part of the facility to another. 21

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iii. A third screening concern is that many of the medical records I examined show inconsistent screening activities, meaning that some of the people who became ill with COVID-19 and even died from COVID-19 had screenings documented less than daily while in a quarantine or medical isolation units. I reviewed 140 pages of screening records and it is clear that despite the stated policies of BOP/PHS to screen for both temperature and symptoms, only temperatures are being recorded much of the time, which was also reported as the practice by many detained people. This reliance on elevated temperature alone is an unreliable approach to detecting COVID-19.5
b. Lack of timely access to sick call and chronic care. Among the 52 people I spoke with, the most common COVID-19 related concern was a lack of access to health care, namely sick call and chronic care encounters. These encounters and care are central to the facility COVID-19 response. Detained people overwhelmingly attributed these concerns to a lack of staffing in the health service. i. Sick call timeliness was reported by almost every person to exceed stated expectations. The BOP/PHS team indicated that a sick call requests concerning a new health problem that included a symptom such as pain should result in a face to face encounter within 24 hours. This is consistent with correctional standards of care.6 People I spoke with consistently reported that reports of new pain, injury and other new medical problems routinely took more than a week to result in being seen, and often that multiple sick call requests and even grievances were
5 Voytco L. Fauci Says Coronavirus Temperature Checks ‘Notoriously Inaccurate’. Forbes Online. Aug 13, 2020. https://www.forbes.com/sites/lisettevoytko/2020/08/13/fauci-says-coronavirus-temperature-checks-notoriouslyinaccurate/#4324213e33f0, accessed 9/15/20. 6 National Commission on Correctional Health Care https://www.ncchc.org/cnp-screening-sickcall-triage, accessed 9/17/20.
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required to elicit a response. Several people reported that they initially reported COVID-19 symptoms via sick call and that they were not seen for days or longer. ii. Chronic care encounters were also reported by almost all people in the chronic care service to take far longer than the 3-6-month window referenced by BOP staff. These delays were also clear when I reviewed the chronic care roster referenced by the Clinical Director, but this information is not part of regular quality assurance. These delays in chronic care can significantly increase the risk of serious illness or death from COVID-19 since poorly controlled health problems are associated with worse COVID-19 outcomes. For example, several patients with asthma stated to me that despite reporting asthma exacerbations via sick call, they continued to receive the same medications and no chronic care encounters for many months. I also reviewed utilization data which showed that 184 chronic care encounters occurred in the month of August 2020. The facility separately reported that a total of 1134 detained people qualify as being high risk for serious illness or death from COVID-19, 50.8 % of the total population. Based on assumptions shared by staff, that most of those people are on the chronic care service and that there is a range of time intervals between 1 and 6 months for chronic care encounters, this monthly pace of chronic care encounters falls far below what is needed.7 iii. A separate access to care issue is the lack of assessment for ongoing COVID-19 symptoms among people who have survived the infection. I spoke with many people who reported ongoing shortness of breath, pain, headaches, weakness and ringing in the ears weeks after their initial infection. The presence of these
7 Assuming 1000 of the high-risk people are on the chronic care service, with a 50/30/20 % split for 6/3/1-month intervals, a monthly pace of 383 chronic care encounters is needed. This need is even greater if there are ever interruptions in services or if patients have more than one chronic care problem and not all problems are addressed at each visit, which medical records show to be the case at least some of the time.
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ongoing symptoms and even disability among a group of people who are classified by BOP as ‘recovered’ reveals a lack of any system to look for these problems after a person leaves medical isolation. BOP has an obligation to assess COVID-19 patients and care for those who require physical therapy, specialty referral and other types of care during recovery. c. Lack of infection control in housing areas. Throughout the facilities I inspected, it was clear that people either had no access to paper towels or that access had been provided in the days before my inspection. The CDC has clearly identified the ability to dry one’s hands with a single use paper towel or air dryer as critical to COVID-19 response.8 In one housing area I was told by BOP leadership that paper towels were not needed because of the presence of a hand dryer. I tested the hand dryer and it was broken. Staff and detained people in the unit confirmed that it had not worked for over one year. I have inspected numerous facilities that manage to secure paper towels for people in both dorm and cell housing areas. Throughout my inspection, the BOP/PHS team stated that common surfaces are cleaned and disinfected at least two times per day and the BOP supplied a COVID-19 cleaning policy which affirms the same. I reviewed data from the Truintel system, which serves as an electronic logbook, and where BOP staff stated that every round of cleaning/disinfecting is recorded. In the four 24-hour periods I reviewed (2 each for North and South Camp), only one was cleaned twice, the others only once. This is consistent with reports from detained people that cleaning/disinfecting does not occur according to facility policies. Despite BOP/PHS assurances that enhanced cleaning occurs in any response to a suspected COVID-19 case via a ‘Strike team’, multiple detained people reported that
8 COVID-19: Handwashing. https://www.cdc.gov/coronavirus/2019-ncov/global-covid-19/handwashing.html, accessed on 9/21/20.
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after identification of a potential COVID-19 case, personal effects and spaces were either left exposed without any cleaning/disinfecting or that detained people without masks were used to conduct this high-risk work. d. Punitive approach to quarantine. The SHU unit I inspected is a 6-tier housing area designed for punitive segregation. The housing of people for 22-24 hours per day in cells, without access to basic privileges including phone and out of cell time is not appropriate and runs counter to CDC guidelines on making COVID-19 responses in detention settings non-punitive.9 While not directly related to quarantine, the intimidation and threatening of detained people to behave in a manner prescribed by correctional staff during the inspection is another very concerning example of a punitive response to the COVID-19 outbreak in the facility. 38. Recommendations to mitigate morbidity and mortality from COVID-19 at BOP Lompoc. Recommendation 1. All detained people in BOP Lompoc should be screened for both elevated temperature and COVID-19 symptoms on a daily basis, prioritizing rollout among people in work crews, those who are COVID-19 negative and those who are >90 days post-infection.10 Results of screenings should be entered into patient records and health leadership should review an adequate sample of screenings on a monthly basis to know that they occur and are recorded. BOP/PHS should also restart their daily tracking of COVID-19 symptoms reported either through sick call or screenings, both as an outbreak management tool and quality assurance intervention. All screening results and sick call requests should be entered into patient records. Recommendation 2. BOP Lompoc should identify the number of additional health staff required to meet their sick call and chronic care obligations and hire those staff within 30 days. BOP
9 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities Updated July 22, 2020. https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html, accessed 9/19/20. 10 The CDC has reported immunity from COVID-19 reinfection as potentially limited to 90 days. https://www.cdc.gov/media/releases/2020/s0814-updated-isolation-guidance.html, accessed 9/15/20.
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documents indicate that among its roster of 35 health staff, there are ten staffing vacancies, including one medical officer, two nurse practitioners, one nurse, one pharmacist and two paramedics. The PHS roster of four lines includes two vacancies, a quality improvement coordinator and a physician assistant. In addition to regular staffing channels, the facility may need to consider short term per diem staff to help with screening and post-COVID-19 symptom assessments. The facility health leadership should be trained and supported to track and report on the link between patient care needs and staffing resources so that gaps in access to care from inadequate staffing are transparent. BOP/PHS leadership at Lompoc should also devise a staffing plan and threshold for use of the hospital unit with a predetermined number of active COVID-19 infections. Recommendation 3. Every person with a recorded positive COVID-19 test should have a health encounter with a mid-level or physician provider within 7-10 days of their release from medical isolation to identify a) their original symptoms, b) the presence of any lingering or ongoing symptoms and c) the need for repeat encounters, specialty referral or physical or occupational therapy. It is important for these encounters to identify whether each patient was ill with COVID19 symptoms and when they were tested in relation to their symptoms. Because most patients in Lompoc BOP tested positive weeks or months ago, these encounters should start with those who are on the chronic care service. This assessment can easily be added as a template or feature of chronic care encounters. Recommendation 4. BOP Lompoc should utilize basic quality assurance tools to measure and report in their quality meeting the percentage of sick call requests that are seen in a timely manner, as well as the percentage of chronic care encounters that occur in a timely manner. The quarterly quality meeting displays this approach in some areas but sick call and chronic care encounters are reported only in terms of number of visits without any assessment of what percentage of the total encounters occur in a timely manner.
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Recommendation 5. BOP Lompoc should implement measures to promote social distancing, institutional cleaning/disinfecting and mask wearing including consideration of; -Use of camp program area for recreation with socially distanced seating. -Training of officers on how to promote/encourage social distancing. -Implementing social distancing in medication, food and other lines. -Regular COVID-19 town halls in each housing area with health and security leadership. -Use of enhanced cleaning/disinfecting for responding to suspected COVID-19 cases. This should include specialized training and the same level of PPE for both staff and detainees engaged in this work. -Development of monitoring tools for staff mask wearing, implementation of cleaning/disinfecting and other infection control measures by security staff. These tools should provide documentation that compliance is assessed and that deficiencies are addressed. Recommendation 6. Paper towels and soap should be made available to all detained people in any location where they wash their hands. Recommendation 7. BOP Lompoc should provide basic services and freedoms to people in quarantine and medical isolation, including access to phone calls, recreation, reading material and time out of cell. Medical isolation should also follow CDC guidelines for being non-punitive.11 Recommendation 8. BOP Lompoc and BOP generally should investigate the occurrence of retaliation and threats against detained people who report medical or health related concerns. Recommendation 9. BOP Lompoc and BOP headquarters should expedite the applications and reviews of high-risk patients who meet criteria for home confinement and report on the number and timing of pending and approved applications.
11 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities. Updated July 22, 2020. https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html#Medicalisolation, accessed 9/17/20.
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Recommendation 10. I recommend that BOP Lompoc coordinate with PHS and BOP headquarters to undertake a review of all COVID-19 related deaths throughout BOP facilities with specific attention to the following areas; -Gaps in daily screenings and medical isolation assessments. -Late or missed chronic care, delays in response to sick call.12 -Whether patients who died had been reviewed or expedited for potential release. -Whether mortality reviews routinely fail to identify findings or recommendations for improvements in care. The six ‘COVID-19 Mortality Review Guidance Questions’ that each of the current death reviews mandate do not inquire whether a patient experienced delays or denials of sick call or chronic care and also do not ask whether chronic health problems were well or poorly controlled. There is also no question as to whether the patient received daily screenings while in quarantine or daily clinical assessments while in medical isolation. Without answering these questions for each mortality review, it is unlikely that inadequacies in care will ever be linked to the outcomes of serious illness or death from COVID-19, despite the reality that they are intimately connected.
F. Summary 39. The COVID-19 outbreak at BOP Lompoc has been one of the prison system’s most expansive, in
terms of the percentage of detained people who were infected as well as those who died. The response of the BOP and PHS to this unprecedented challenge at Lompoc exhibits both significant strengths and serious deficiencies. Overall, the COVID-19 response at BOP Lompoc is characterized by some evidence-based strategies being superimposed on a grossly inadequate system of health care. As a result, the policies and procedures developed to find and respond to
12 For almost 2 decades, the U.S. Department of Health and Human Services has identified the link between poorly controlled chronic health problems and hospitalizations. See https://www.ahrq.gov/downloads/pub/ahrqqi/pqiguide.pdf, accessed 9/19/20. This lens should be applied to a review of all COVID-19 deaths in BOP custody.
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COVID-19 cases, slow the spread of the virus and protect high risk patients have been incompletely implemented. Many of the deficiencies in health access flow directly from chronic, unaddressed understaffing. This problem has been previously identified but I am very concerned by facility leadership’s inability to discuss or quantify how these shortages relate to the COVID19 response. 40. A common thread that I observed throughout my inspection was a lack of data tracking or basic quality assurance in the approach that leadership takes, not only for staffing, but in access to sick call, chronic care and cleaning/disinfecting. The BOP/PHS team offered numerous assurances that these and other critical COVID-19 tasks, such as screening of detained work crews, occur without fail-despite contrary reports by detained people and ample evidence to the contrary in documents I have reviewed, including the records of people who died from COVID-19. Based on my review of the quarterly quality meeting report and other records, I believe that implementing these quality assurance tools is feasible and would be extremely helpful in providing regular, objective data critical to the COVID-19 response. 41. The BOP COVID-19 response at Lompoc can be vastly improved by building on existing strengths and addressing longstanding weaknesses, especial in the health service. By applying the same rigorous approach that is utilized for staff COVID-19 screening to detained people, addressing the punitive nature of quarantine settings and ensuring regular assessments of people in medical isolation, I am confident that cases will be more quickly identified and cared for. Unless the chronic staffing shortages are addressed, however, people with acute complaints relating to COVID-19, influenza and other health problems will likely be missed, and similarly, without adequate staffing for chronic care and post-COVID-19 care, the patients who do become ill with COVID-19 and influenza will face higher risks of serious illness and death. A much more thorough review of deaths from COVID-19 is required by BOP/PHS. 42. Addressing these concerns in the health system will take time, as will the implementation of better social distancing and other infection control efforts. The current census of many housing
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Venters-BOP Lompoc areas, and the considerable number of high-risk people inside Lompoc create a strong mandate for more vigorous consideration and processing of compassionate release applications.
Executed this 25th day of September, 2020 in Jackson MS Signed, Homer Venters MD, MS
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Venters-BOP Lompoc G. Appendix 1. Materials Reviewed for Venters BOP Lompoc Inspection Report • Protective Order. • BOP home confinement memo. • BOP Lompoc COVID-19 memos. • BOP COVID-19 Cleaning materials, K unit cleaning detail roster. • Written inmate communications. • COVID Case data. • Camp cleaning logs. • Chronic care roster. • Staffing vacancies. • Medical isolation log. • COVID-19 Screening logs. • Grievances. • Medical records for deceased inmates. • Medical records of petitioners. • Mortality reviews (internal and external consultant) for deceased inmates.
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 Case 2:20-cv-04450-CBM-PVC Document 105 Filed 10/08/20 Page 1 of 6 Page ID #:3841

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

10

11 YONNEDIL CARROR TORRES, et al.,
12 Plaintiff-Petitioners,
13 vs.
14 LOUIS MILUSNIC, in his capacity as
15 Warden of Lompoc, et al.,

CASE NO. 2:20-cv-04450-CBM-PVCx ORDER GRANTING MOTION TO ENFORCE COMPLIANCE WITH PRELIMINARY INJUNCTION AND FOR ORDER TO SHOW CAUSE

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Defendant-Respondents.

17

18

The matter before the Court is Plaintiff-Petitioners Yonnedil Carror Torres,

19 Vincent Reed, Felix Samuel Garcia, Andre Brown, and Shawn L. Fears’

20 (“Petitioners’”) Motion to Enforce Compliance with Preliminary Injunction and for

21 Order to Show Cause. (Dkt. No. 93.) The matter is fully briefed.

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I. BACKGROUND

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This action is brought on behalf of inmates at FCI Lompoc and USP Lompoc

24 (collectively, “Lompoc”) challenging the Director of the Bureau of Prisons (“BOP”)

25 and Warden of Lompoc’s response during the COVID-19 pandemic. The

26 Complaint asserts two causes of action: (1) Unconstitutional Conditions of

27 Confinement in Violation of the Eighth Amendment to the U.S. Constitution

28 pursuant to 28 U.S.C. §§ 2241, 2243; (2) and Unconstitutional Conditions of

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1 Confinement in Violation of the Eighth Amendment to the U.S. Constitution

2 pursuant to U.S. Const, Amend. VIII; 28 U.S.C. § 1331; 5 U.S.C. § 702, “Injunctive

3 Relief Only.” On July 14, 2020, the Court granted Petitioners’ motion for a 4 preliminary injunction1 to require Respondents to make “full and speedy use of their

5 authority under the CARES Act and evaluate each class member’s eligibility for

6 home confinement which gives substantial weight to the inmate’s risk factors for

7 severe illness and death from COVID-19 based on age (over 50) or Underlying

8 Health Conditions.” (Dkt. No. 45 (the “Preliminary Injunction Order”).) A site

9 inspection of Lompoc was conducted on September 1 and 2, 2020 by Dr. Venters,

10 the court-appointed Rule 706 expert. Dr. Venters’ report regarding his site visit was

11 filed on September 25, 2020. (Dkt. No. 101.)

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II. DISCUSSION

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Petitioners move for an order seeking “enforcement” of the Court’s

14 Preliminary Injunction Order. Petitioners contend Respondents have failed to make

15 “full and speedy use of their authority under the CARES Act” to evaluate at least

16 two subcategories of class members for home confinement: (1) those who have

17 already been approved for home confinement but have not yet been released

18 (“Approved Class Members”); and (2) those who were denied home confinement

19 and designated instead to a Residential Re-entry Center (“RRC” or “hallway

20 house”) even though they have no history of violence, sex offense, or terrorism and

21 do not have “High” PATTERN scores (“RRC Class Members”).

22 A. Approved Class Members

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As to Approved Class Members, Petitioners contend Respondents identified

24 14 Approved Class Members with actual release dates to home confinement but it is

25 unclear whether the remaining 113 Approved Class Members have been released to

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27 1 The parties agreed to convert Petitioners’ Ex Parte Application for Temporary

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Restraining Order to an expedited motion for preliminary injunction. (Dkt. Nos. 41, 42.)

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1 home confinement. (See Dkt. Nos. 78, 82, 87.) Petitioners argue Respondents have

2 not responded to their requests for information regarding which Approved Class

3 Members have actually been released to home confinement, whether they are being

4 required to quarantine in the Special Housing Unit prior to release for a certain

5 period of time even though the inmates have a release plan where they can self-

6 isolate, and why it is taking so long for the inmates to be released to home

7 confinement.

8

Respondents argue the Court cannot order the release of inmates because the

9 PLRA requires a 3-judge panel for release of inmates “in any civil action with

10 respect to prison conditions.” However, the Court previously found that Petitioners

11 properly assert a habeas claim because they are challenging the fact of confinement

12 (not the conditions of confinement), and therefore the PLRA’s prison release order

13 provisions do not apply. (Preliminary Injunction Order at 42 (“Having found

14 Petitioners assert a proper habeas claim pursuant to § 2241 challenging the fact of

15 their confinement, the PLRA’s limitations regarding prison release orders do not

16 apply here.”); Dkt. No. 99, Order re: Respondents’ Motion to Dismiss, at 4 (“Having

17 found Petitioners assert a proper habeas claim pursuant to § 2241 challenging the

18 fact of their confinement, Petitioner’s habeas claim is not foreclosed by the

19 PLRA.”).) Moreover, the Court has not ordered the release of inmates.

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Respondents also contend the Court’s Preliminary Injunction Order does not

21 require immediate transfer of inmates to home confinement, the transfer of a

22 specific number of inmates, or transfer by a stated time. However, the Court’s

23 Preliminary Injunction Order required Respondents to make “full and speedy use of

24 their authority under the CARES Act and evaluate each class member’s eligibility

25 for home confinement which gives substantial weight to the inmate’s risk factors for

26 severe illness and death from COVID-19 based on age (over 50) or Underlying

27 Health Conditions.” By failing to expeditiously release Approved Class Members to

28 home confinement, Respondents are not making full and speedy use of their CARES

3
ORDER

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1 Act authority in violation of the Preliminary Injunction. See Martinez-Brooks v.

2 Easter, 3:20-CV-569 MPS, Dkt. 70 at 1-2 (D. Conn. May 29, 2020) (respondents

3 must release approved class members to home confinement to come into compliance 4 with TRO).2

5 B. RRC Class Members

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As to RRC Class Members, Petitioners contend nearly 100 medically

7 vulnerable class members, including class members who have no history of

8 violence, sex offenses, or terrorism, were denied home confinement and instead

9 deemed suitable for community placement at a halfway house. Petitioners argue if

10 these RRC Class Members have a viable release plan and are not otherwise a danger

11 to public safety, Respondents’ refusal to grant them home confinement demonstrates

12 Respondents’ failure to make full use of their CARES Act authority and to put

13 substantial weigh on class members’ risk factors for severe illness or death from 14 COVID-19.3 Petitioners also contend it appears some RRC Class Members who

15 were already approved for RRC placement were not even evaluated for home

16 confinement. Respondents contend Petitioners are complaining about the BOP’s

17 decision to transfer inmates to RRCs versus home confinement, which is not within

18 the scope of the Preliminary Injunction Order because nothing in the Court’s order

19 prohibits Respondents from transferring inmates to RRCs.

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If Respondents are designating medically vulnerable class members to RRCs

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22 2 Respondents also contend there is no evidence that inmates are at a greater risk of COVID-19 while incarcerated within Lompoc than in the outside world. However,

23 Dr. Venters’ Expert Report raises concerns regarding the safety of Lompoc inmates and measures that should be implemented to prevent spread of COVID-19 at

24 Lompoc.

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3 See Martinez-Brooks v. Easter, 3:20-CV-569, Dkt. No. 70 at 6 (D. Conn. May 29, 2020) (ordering for “each medically vulnerable inmate who has been approved for

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community placement at an RRC and who does not have a violent offense of conviction, a sexually-related offense of conviction, or a “High” PATTERN score,

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the Warden shall either (a) release the inmate to home confinement or (b) demonstrate that public safety or medical considerations or the absence of any home

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in which to place the inmate would make it unsafe to move the inmate immediately to home confinement.”).

4
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1 when those inmates are otherwise suitable for home confinement, Defendants are

2 failing to comply with the Court’s Preliminary Injunction Order requiring

3 Respondents to make full use of their CARES Act authority and give substantial

4 weight to the inmate’s risk factors for serious illness or death from COVID-19. See

5 Martinez-Brooks v. Easter, 3:20-CV-569 MPS, Dkt. 70 at 6 (D. Conn. May 29,

6 2020) (prospect of heightened supervision at RRCs does not outweigh the “medical

7 considerations that make release to home confinement necessary to make the habeas

8 remedy effective for those inmates” who were designated to RRCs but do not have a

9 violent offense, a sexually related offense, or a High PATTERN score).

10

III. CONCLUSION

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Accordingly, the Court GRANTS the Motion as follows:

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1. No later than October 16, 2020, Respondents are ORDERED

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to file a declaration under seal confirming that all class members

who were identified as having been approved for home

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confinement in Dkt. Nos. 78, 82, and 87 have been released to

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home confinement, including the date of each inmate’s release to

home confinement. The declaration shall identify each approved

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class member identified in Dkt. Nos 78, 82, and 87 who has not

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been released to home confinement by the date of the filing of

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the declaration, and explain the reason for the delay in his release to home confinement. The declaration shall also include an

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explanation of the steps required to place Lompoc inmates on

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home confinement after an inmate has been approved for home confinement, and identify the shortest amount of time in which

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placement of an inmate on home confinement can be

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accomplished;

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2. No later than October 16, 2020, Respondents are ORDERED

to file a declaration under seal identifying Lompoc inmates who

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were denied home confinement and instead designated to a

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Residential Re-entry Center (“RRC” or “halfway house”), who

have no history of violence, no sex-offense- or terrorism-related

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convictions, and do not have a “High” PATTERN score (“RRC

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Class Members”); and

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3. No later than October 16, 2020, Respondents are ORDERED

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to file a declaration under seal identifying each RRC Class

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Member who was denied home confinement but has a viable release plan, which explains why home confinement was denied

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and how public safety or other considerations would make it

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unsafe to release the inmate to home confinement.

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IT IS SO ORDERED.

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7 DATED: October 8, 2020. 8
9

CONSUELO B. MARSHALL UNITED STATES DISTRICT JUDGE

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ORDER


On May 16, 2020, five individuals filed a class action against Lompoc, a low-security prison facing one of the largest outbreaks of COVID-19 among U.S federal prisons, for immediate relief. The plaintiffs proposed a class of all current and future people in post-conviction custody at Lompoc, and sought enlargement of custody to include home confinement, and if the conditions of confinement violated constitutional rights, for prisoners to be released. The plaintiffs also sought a TRO (temporary restraining order), and a preliminary injunction requiring Lompoc to undertake health and safety measures, and attorney fees. On September 18, the court denied the defendant's motion to dismiss the case and on October 8, the court granted plaintiff's motion to enforce compliance with the preliminary injunction. In January 2021, the plaintiffs filed another motion to enforce compliance with the preliminary injunction. The case is ongoing.