U.S. District Court District of Maryland (Greenbelt) CIVIL DOCKET FOR CASE #: 8:20-cv-01028-PX

Seth et al v. McDonough Assigned to: Judge Paula Xinis Referred to: Magistrate Judge Timothy J. Sullivan (Settlement) Case in other court: USCA, 20-06776 Cause: 42:1983 Civil Rights Act - Civil Action for Deprivation of Rights

Date Filed: 04/21/2020 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Keith Seth

represented by Cadene Russell Brooks WilmerHale 1875 Pennsylvania Ave. NW Washington, DC 20006 2026636115 Email: cadene.brooks@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

Edward Henderson Williams , II WilmerHale 1875 Pennsylvania Ave NW Washington, DC 20006 202-663-6487 Email: Ed.Williams@wilmerhale.com ATTORNEY TO BE NOTICED

Ellora Thadaney Israni Civil Rights Corps 1601 Connecticut Ave. NW Ste. 800 Washington, DC 20009 6502234196 Fax: 2026098030 Email: ellora@civilrightscorps.org PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Chamblee Ryan Civil Rights Corps

1601 Connecticut Ave. Ste. 800 Washington, DC 20009 6109317715 Fax: 2026058030 Email: katie@civilrightscorps.org PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Claire Hubbard Civil Rights Corps 1601 Connecticut Ave, Suite 800 Washington, DC 20009 2029303835 Fax: 2026058030 Email: katherine@civilrightscorps.org PRO HAC VICE ATTORNEY TO BE NOTICED
Olevia Boykin Civil Rights Corps 1601 Connecticut Ave. Ste. 800 Washington, DC 20009 9202872866 Fax: 2026058030 Email: olevia@civilrightscorps.org TERMINATED: 12/03/2020 PRO HAC VICE
Ryan Downer Civil Rights Corps 1601 Connecticut Ave, Suite 800 Washington, DC 20009 2028946146 Fax: 2026058030 Email: ryan@civilrightscorps.org PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Ann Rossi Civil Rights Corps 1601 Connecticut Ave. NW Suite 800 Washington, DC 20009 410-935-3758 Email:

Plaintiff David Smith
Plaintiff Mario Burch

elizabeth@civilrightscorps.org ATTORNEY TO BE NOTICED
represented by Cadene Russell Brooks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Edward Henderson Williams , II (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Ann Rossi (See above for address) ATTORNEY TO BE NOTICED
Ellora Thadaney Israni (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Chamblee Ryan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Claire Hubbard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olevia Boykin (See above for address) TERMINATED: 12/03/2020 PRO HAC VICE
Ryan Downer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Cadene Russell Brooks (See above for address)

Plaintiff John Does 1-5

PRO HAC VICE ATTORNEY TO BE NOTICED
Edward Henderson Williams , II (See above for address) ATTORNEY TO BE NOTICED
Ellora Thadaney Israni (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Chamblee Ryan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Claire Hubbard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olevia Boykin (See above for address) TERMINATED: 12/03/2020 PRO HAC VICE
Ryan Downer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Ann Rossi (See above for address) ATTORNEY TO BE NOTICED
represented by Cadene Russell Brooks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Edward Henderson Williams , II (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Mary Lou McDonough

Ellora Thadaney Israni (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Chamblee Ryan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Claire Hubbard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olevia Boykin (See above for address) TERMINATED: 12/03/2020 PRO HAC VICE
Ryan Downer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Ann Rossi (See above for address) ATTORNEY TO BE NOTICED
represented by Shelley Lynn Johnson Prince Georges County Office of Law Wayne K. Curry Adminstration Building 1301 McCormick Dirve, Suite 4100 Largo, MD 20774 13019525225 Fax: 13019523071 Email: sljohnson@co.pg.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew J Murray Prince George's County Office of Law 1301 McCormick Drive, Suite 4100 Largo, MD 20774 13019524347 Fax: 13019523071 Email: ajmurray@co.pg.md.us ATTORNEY TO BE NOTICED
Ann Elizabeth Koshy Prince George's County Office of Law LitigationDivision 1301 McCormick Drive Suite 4100 Wayne K. Curry Building Largo, MD 20774 3019522842 Fax: 3019523071 Email: aekoshy@co.pg.md.us TERMINATED: 02/19/2021
Kenneth Scott Steely Maynard Cooper Gale PC 655 Gallatin St. Hunstville, AL 35801 2565510171 Fax: 2565120119 Email: ksteely@maynardcooper.com PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Clarence Rogers Maynard Cooper Gale PC 655 Gallatin St. Huntsville, AL 35801 2565510171 Fax: 2565120119 Email: srogers@maynardcooper.com PRO HAC VICE ATTORNEY TO BE NOTICED
William Lunsford

Amicus Terry A. Kupers

Maynard Cooper Gale PC 655 Gallatin St. Huntsville, AL 35801 2565510171 Fax: 2565120119 Email: blunsford@maynardcooper.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Sonia Kumar ACLU of Maryland 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 410-889-8555 Fax: 410-366-7838 Email: kumar@aclu-md.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darren Johnson Paul Weiss Rifkind Wharton and Garrison 1285 Avenue of the Americas New York, NY 10019 2123733710 Fax: 2124920710 Email: DJohnson@paulweiss.com PRO HAC VICE ATTORNEY TO BE NOTICED
David Kimball Stanley Paul Weiss Rifkind Wharton and Garrison 1285 Avenue of the Americas New York, NY 10019 2123733275 Fax: 2124920275 Email: dkimballstanley@paulweiss.com PRO HAC VICE ATTORNEY TO BE NOTICED
Golda Lai Paul Weiss Rifkind Wharton and

Amicus Dallas Augustine

Garrison 1285 Avenue of the Americas New York, NY 10019 2123733663 Fax: 2124920663 Email: glai@paulweiss.com PRO HAC VICE ATTORNEY TO BE NOTICED
Megan L Gao Paul Weiss Rifkind Wharton and Garrison 1285 Avenue of Americas New York, NY 10019 2123733803 Fax: 6463655900 Email: mgao@paulweiss.com PRO HAC VICE ATTORNEY TO BE NOTICED
Susanna M Buergel Paul Weiss Rifkind Wharton and Garrison 1285 Avenue of the Americas New York, NY 10019 2123733553 Fax: 2124920553 Email: sbuergel@paulweiss.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Sonia Kumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darren Johnson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Kimball Stanley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Robert L. Cohen

Golda Lai (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Megan L Gao (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Susanna M Buergel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Sonia Kumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darren Johnson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Kimball Stanley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Golda Lai (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Megan L Gao (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Susanna M Buergel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Pablo Stewart
Amicus Cyrus Ahalt

represented by Sonia Kumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darren Johnson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Kimball Stanley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Golda Lai (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Megan L Gao (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Susanna M Buergel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Sonia Kumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darren Johnson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Kimball Stanley (See above for address) PRO HAC VICE

Amicus Stuart Grassian

ATTORNEY TO BE NOTICED
Golda Lai (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Megan L Gao (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Susanna M Buergel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Sonia Kumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darren Johnson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Kimball Stanley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Golda Lai (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Megan L Gao (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Susanna M Buergel (See above for address)

PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 04/21/2020
04/21/2020
04/21/2020
04/21/2020 04/21/2020 04/21/2020 04/21/2020

#

Docket Text

(FILED IN ERROR) SEE 2 FOR CORRECTED FILING

1

COMPLAINT against All Plaintiffs, filed by John Does 1-5, Keith

Seth, Mario Burch, David Smith(Attachments: # 1 Appendix

Exhibits)(Rossi, Elizabeth) Modified on 4/21/2020 (ybs, Deputy

Clerk). Modified on 4/21/2020 (ybs, Deputy Clerk). (Entered:

04/21/2020)

2 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0416-8619803.), filed by John Does 1-5, Keith Seth, , Mario Burch, David Smith. (Attachments: # 1

Appendix)(Rossi, Elizabeth) Modified on 4/21/2020 (ybs, Deputy Clerk). (Entered: 04/21/2020)

Emergency MOTION for Temporary Restraining Order by Mario

3

Burch, John Does 1-5, Keith Seth, David Smith. (Attachments: # 1

Memorandum in Support, # 2 Appendix Exhibits)(Rossi, Elizabeth) Modified on 4/21/2020 (ybs, Deputy Clerk). (Entered: 04/21/2020)

4 MOTION to Certify Class by Mario Burch, John Does 1-5, Keith Seth, David Smith (Attachments: # 1 Memorandum in Support, # 2 Exhibit)(Rossi, Elizabeth) Modified on 4/21/2020 (ybs, Deputy Clerk). (Entered: 04/21/2020)

5 MOTION to Appear Pro Hac Vice for Ryan Downer (Filing fee $100, receipt number 0416-8619903.) by Mario Burch, David Smith, Keith Seth, John Does 1-5(Rossi, Elizabeth) Modified on 4/21/2020 (ybs, Deputy Clerk). (Entered: 04/21/2020)
6 MOTION to Appear Pro Hac Vice for Olevia Boykin (Filing fee $100, receipt number 0416-8619921.) by Mario Burch, John Does 1-5, Keith Seth, David Smith(Rossi, Elizabeth) Modified on 4/21/2020 (ybs, Deputy Clerk). (Entered: 04/21/2020)
7 MOTION to Appear Pro Hac Vice for Katherine ChambleeRyan (Filing fee $100, receipt number 0416-8619928.) by Mario Burch, John Does 1-5, Keith Seth, David Smith(Rossi, Elizabeth) Modified on 4/21/2020 (ybs, Deputy Clerk). (Entered: 04/21/2020)

04/21/2020 04/21/2020 04/21/2020 04/21/2020
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8 NOTICE by Mario Burch, John Does 1-5, Keith Seth, David
Smith re 3 Emergency MOTION for Temporary Restraining Order Request for Hearing (Rossi, Elizabeth) Modified on 4/21/2020 (ybs, Deputy Clerk). (Entered: 04/21/2020)
9 NOTICE by Mario Burch, John Does 1-5, Keith Seth, David Smith re 2 Complaint, Civil Cover Sheet (Rossi, Elizabeth) Modified on 4/21/2020 (ybs, Deputy Clerk). (Entered: 04/21/2020)
10 (FILED IN ERROR) Summons Returned Unexecuted by Keith Seth, John Does 1-5, Mario Burch, David Smith as to All Defendants.(Rossi, Elizabeth) Modified on 4/21/2020 (ybs, Deputy Clerk). (Entered: 04/21/2020)
11 QC NOTICE: 10 Summons Returned Unexecuted filed by John Does 1-5, Mario Burch, David Smith, Keith Seth was filed incorrectly. **Incorrect event used. It has been noted as FILED IN ERROR, and the document link has been disabled. To correct this problem, file Summons using the event Notice (Other) and link Summons
to 1 Complaint. (ybs, Deputy Clerk) (Entered: 04/21/2020)
12 NOTICE by Mario Burch, John Does 1-5, Keith Seth, David Smith re 2 Complaint, Summons (Rossi, Elizabeth) (Entered: 04/21/2020)
13 Summons Issued 21 days as to Mary Lou McDonough. (tds, Deputy Clerk) (Entered: 04/22/2020)
14 QC NOTICE: 5 Motion to Appear Pro Hac Vice filed by John Does 1-5, Mario Burch, David Smith, Keith Seth needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 04/22/2020)
15 QC NOTICE: 6 Motion to Appear Pro Hac Vice filed by John Does 1-5, Mario Burch, David Smith, Keith Seth needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 04/22/2020)
16 QC NOTICE: 7 Motion to Appear Pro Hac Vice filed by John Does 1-5, Mario Burch, David Smith, Keith Seth needs to be modified. See attachment for details and corrective actions needed

04/22/2020 04/22/2020 04/22/2020 04/22/2020 04/23/2020
04/23/2020 04/23/2020 04/23/2020

regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 04/22/2020)

CORRECTED MOTION to Appear Pro Hac Vice for Ryan

17

Downer by Mario Burch, John Does 1-5, Keith Seth, David Smith.

The fee has already been paid.(Rossi, Elizabeth) (Entered:

04/22/2020)

18 CORRECTED MOTION to Appear Pro Hac Vice for Olevia Boykin by Mario Burch, John Does 1-5, Keith Seth, David Smith. The fee has already been paid.(Rossi, Elizabeth) (Entered: 04/22/2020)

19 CORRECTED MOTION to Appear Pro Hac Vice for Katherine Chamblee-Ryan by Mario Burch, John Does 1-5, Keith Seth, David Smith. The fee has already been paid.(Rossi, Elizabeth) (Entered: 04/22/2020)

20 [FILED IN ERROR] NOTICE of Appearance by Shelley Lynn Johnson on behalf of Mary Lou McDonough (Johnson, Shelley) Modified on 4/23/2020 (tds, Deputy Clerk). (Entered: 04/22/2020)

21 QC NOTICE: 20 Notice of Appearance filed by Shelley Johnson on behalf of Andrew Murray for Defendant Mary Lou McDonough was filed incorrectly. ***Each attorney must file their Notice of Appearance using their CM/ECF login in order to be added as counsel to a case. The Notice of Appearance has been noted as FILED IN ERROR, and the document link has been disabled. Thank you. (tds, Deputy Clerk) Modified on 4/23/2020 (tds, Deputy Clerk). (Entered: 04/23/2020)

22 NOTICE of Appearance by Ann Elizabeth Koshy on behalf of Mary Lou McDonough (Koshy, Ann) (Entered: 04/23/2020)

23 NOTICE of Appearance by Andrew J Murray on behalf of Mary Lou McDonough (Murray, Andrew) (Entered: 04/23/2020)

ORDER directing Defendant to file a Response to Plaintiffs' 3 24
Emergency MOTION for Temporary Restraining Order by April 25, 2020 as instructed herein, and specifically regarding Attachment A to this Order; stating that Plaintiffs' Reply is due by April 27, 2020; directing Parties to submit a joint recommendation for an Independent Inspector by April 27, 2020; stating that if the Parties are unable to agree on an inspector, each party is to propose two recommendations and file related documents as

04/23/2020 04/24/2020 04/24/2020 04/24/2020 04/25/2020 04/26/2020

instructed herein; and holding in abeyance Plaintiffs' 4 Motion to Certify Class until resolution of Plaintiffs' Motion for Temporary Restraining Order. Signed by Judge Paula Xinis on 4/23/2020. (Attachment: # 1 Attachment A) (tds, Deputy Clerk) (Entered: 04/23/2020)
25 NOTICE of Appearance by Shelley Lynn Johnson on behalf of Mary Lou McDonough (Johnson, Shelley) (Entered: 04/23/2020)
26 PAPERLESS ORDER granting 17 Corrected Motion to Appear Pro Hac Vice on behalf of Ryan Downer. Directing attorney Ryan Downer to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 4/24/2020. (srds, Deputy Clerk) (Entered: 04/24/2020)
27 PAPERLESS ORDER granting 18 Corrected Motion to Appear Pro Hac Vice on behalf of Olevia Boykin. Directing attorney Olevia Boykin to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 4/24/2020. (srds, Deputy Clerk) (Entered: 04/24/2020)
28 PAPERLESS ORDER granting 19 Corrected Motion to Appear Pro Hac Vice on behalf of Katherine Chamblee Ryan. Directing attorney Katherine Chamblee Ryan to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 4/24/2020. (srds, Deputy Clerk) (Entered: 04/24/2020)
29 -SEALED-RESPONSE in Opposition re 3 Emergency MOTION for Temporary Restraining Order filed by Mary Lou McDonough. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Exhibit CDC Guidelines, # 5 Exhibit Policy, # 6 Exhibit newsletter, # 7 Exhibit newsletter)(Johnson, Shelley) (Entered: 04/25/2020)
[STRICKEN PER PAPERLESS ORDER AT ECF NO. 32] 30
AMENDED RESPONSE in Opposition re 3 Emergency MOTION for Temporary Restraining Order filed by Mary Lou McDonough. (Attachments: # 1 Exhibit, # 2 Affidavit, # 3 Affidavit, # 4 Affidavit) (Johnson, Shelley) Modified on 4/27/2020 to add AMENDED (tds, Deputy Clerk). (Entered: 04/26/2020)

04/26/2020 04/26/2020 04/26/2020
04/26/2020 04/27/2020 04/27/2020

31 [STRICKEN PER PAPERLESS ORDER AT ECF NO. 32] SEALED - NOTICE of Filing Under Seal Exhibit 4 to Response to Temporary Restraining Oder and Peliminary Injunction by

Mary Lou McDonough re 30 Response in Opposition to Motion (Attachments: # 1 Affidavit) (Johnson, Shelley) Modified on 4/27/2020 (tds, Deputy Clerk). (Entered: 04/26/2020)

32 PAPERLESS ORDER STRIKING 30

Response in

Opposition 3 Emergency Motion for Temporary Restraining Order, and STRIKING 31 Notice of Filing Exhibit or Attachment Under Seal. Signed by Judge Paula Xinis on 4/26/2020. (tb2s, Chambers) (Entered: 04/26/2020)

33 PAPERLESS ORDER: By noon Monday April 27, 2020, Defendant shall file electronically the exhibits corresponding with the Declarations at ECF No. 29. The Defendant shall further file any additional exhibits responsive to Attachment A at ECF No. 24-1 as a separate filing and such additional exhibits shall include a table of contents and indicate clearly on each exhibit the section or subsection at Attachment A to which it corresponds. Failure to comply with this Order may result in striking the Declarations and/or Exhibits from the record. Signed by Judge Paula Xinis on 4/26/2020. (tb2s, Chambers) (Entered: 04/26/2020)

34 MOTION for Extension of Time to File Response/Reply as to 29 Response in Opposition to Motion, by Mario Burch, John Does 1-5, Keith Seth, David Smith(Rossi, Elizabeth) (Entered: 04/26/2020)

35 PAPERLESS ORDER GRANTING 34 Motion for Extension of

Time. Plaintiff's Reply to 3 Emergency MOTION for Temporary Restraining Order is extended to April 29, 2020 at 12:00 p.m. Signed by Judge Paula Xinis on 4/27/2020. (tb2s, Chambers) (Entered: 04/27/2020)

36 Supplemental to 29 Response in Opposition to Motion, filed by Mary Lou McDonough (Attachments: # 1 Exhibit 1A - Powell Memo, # 2 Exhibit 1B - Coronavirus update, # 3 Exhibit 1C - Feb. 5 email, # 4 Exhibit 1D - Intake Form, # 5 Exhibit 1E - MAC meeting, # 6 Exhibit 1F - Memo by Director McDonough, # 7 Exhibit 1G - Photo of Poster, # 8 Exhibit 1H - Posters in Medical Unit, # 9 Exhibit 1I - Training provided to Medical Staff, # 10 Exhibit 1J - March 20 Memo, # 11 Exhibit 1K - CDG

04/27/2020
04/27/2020 04/27/2020 04/27/2020

Guidance, # 12 Exhibit 1L - March 24 Memo, # 13 Exhibit 1MMarch 27 Memo, # 14 Exhibit 1N - March 31 Memo, # 15 Exhibit 1O - CDC Patient Information Fact Sheet, # 16 Exhibit 1P Acknowledgement of Receipt, # 17 Exhibit 1Q - Daily Temperature Check Logs, # 18 Exhibit 2A - CDC Guidelines, # 19 Exhibit 2B - Jan 28 Memo, # 20 Exhibit 2C - Feb. 4 Memo, # 21 Exhibit 2D - Email re Training, # 22 Exhibit 2E - 2019 COVID Tabletop Exercise, # 23 Exhibit 2F - Mar 2 memo, # 24 Exhibit 2G - Mar 11 memo, # 25 Exhibit 2H - Mar 13 memo, # 26 Exhibit 2I - March 17 memo, # 27 Exhibit 2J - Mar 20 memo, # 28 Exhibit 2K - Mar 24 memo, # 29 Exhibit 2L - Mar 27 memo, # 30 Exhibit 2M - Mar 31 memo, # 31 Exhibit 2N - Combined April memo with attachment, # 32 Exhibit 3A - pandemic policy SEE ECF No. 43 for correct document) (Johnson, Shelley) Modified on 4/30/2020 re: Exhibit 3A (tds, Deputy Clerk). (Entered: 04/27/2020)
37 RESPONSE re 24 Order,,, Attachment A filed by Mary Lou McDonough. (Attachments: # 1 Exhibit 1- Photos of Medical Unit, # 2 Exhibit 2-Photos of Housing Unit, # 3 Exhibit 3- Emails from Chief of Security, # 4 Exhibit 4- Grievances and Complaints, # 5 Exhibit 5-Home Detention, # 6 Exhibit 6 - Bed Roster, # 7 Exhibit 7 - Housing Unit Custody Levels, # 8 Exhibit 8 Housing Unit Detail Reports, # 9 Exhibit 9 - Housing Unit Roster, # 10 Exhibit 10 - Inter-Department Requisition for Supplies, # 11 Exhibit 11- Invoices for Supplies, # 12 Exhibit 12 - Meal Prep, # 13 Exhibit 13 - Milestone video photos, # 14 Exhibit 14 Plaintiff Commitment summary, # 15 Exhibit 15 - Posted flyers, # 16 Exhibit 16 - Related policies, # 17 Exhibit 17A - Shift I Commander Reports, # 18 Exhibit 17B - Shift II Commander Reports, # 19 Exhibit 17C - Shift III Commander Reports, # 20 Exhibit 18 - Staff PPE and Inmate Kit Photos, # 21 Exhibit 19 - Supply Delivery to Units, # 22 Exhibit 20 - Weekly Roundup Newsletters, # 23 Exhibit 21 - COVID Leave and Incidents)(Johnson, Shelley) (Entered: 04/27/2020)
38 Supplemental to 29 Response in Opposition to Motion, filed by Mary Lou McDonough (Johnson, Shelley) (Entered: 04/27/2020)
39 Supplemental to 29 Response in Opposition to Motion, filed by Mary Lou McDonough (Johnson, Shelley) (Entered: 04/27/2020)
40 Joint MOTION for Extension of Time to Submit Independent Inspector Recommendations by Mario Burch, John Does 1-5, Keith Seth, David Smith (Attachments: # 1 Exhibit Ex. 1,

04/27/2020 04/28/2020
04/28/2020 04/29/2020
04/29/2020 04/29/2020 04/29/2020 04/30/2020

# 2 Exhibit Ex. 2, # 3 Exhibit Ex. 3, # 4 Exhibit Ex. 4)(Rossi, Elizabeth) (Entered: 04/27/2020)
41 PAPERLESS ORDER GRANTING 40 Motion for Extension of Time to Submit Independent Inspector Recommendations. Signed by Judge Paula Xinis on 4/27/2020. (tb2s, Chambers) (Entered: 04/27/2020)
42 QC NOTICE regarding: 36 Supplemental to 29 Response in Opposition filed by Mary Lou McDonough. ***The following attachments or exhibits are missing - Exhibit 3632 (Exhibit 3A) is listed as a Pandemic Policy, but the incorrect document was attached. To correct this problem, file the correct document using the event Supplemental, note Corrected Exhibit 3A, the name of the attachment (Pandemic Policy) and link the attachment to 29 Response in Opposition to Motion. Thank you. (tds, Deputy Clerk) (Entered: 04/28/2020)
43 Supplemental to 29 Response in Opposition to Motion, filed by Mary Lou McDonough (Attachments: # 1 Exhibit 3A - Pandemic policy)(Johnson, Shelley) (Entered: 04/28/2020)
44 REPLY to Response to Motion re 3 Emergency MOTION for Temporary Restraining Order filed by Mario Burch, John Does 15, Keith Seth, David Smith. (Attachments: # 1 Unredacted Appendix)(Rossi, Elizabeth) Modified on 4/29/2020 (kns, Deputy Clerk). (Entered: 04/29/2020)
45 MOTION for Leave to File Excess Pages by Mario Burch, John Does 1-5, Keith Seth, David Smith(Rossi, Elizabeth) (Entered: 04/29/2020)
46 PAPERLESS ORDER GRANTING 45 Motion for Leave to File Excess Pages. Signed by Judge Paula Xinis on 4/29/2020. (tb2s, Chambers) (Entered: 04/29/2020)
47 Supplemental to 44 Reply to Response to Motion, filed by Mario Burch, John Does 1-5, Keith Seth, David Smith Redacted Appendix (Boykin, Olevia) (Entered: 04/29/2020)
48 NOTICE by Mario Burch, John Does 1-5, Keith Seth, David
Smith re 24 Order,,, Plaintiffs Letter of Recommendation re Independent Jail Inspector (Attachments: # 1 Exhibit Curriculum Vitae of Dr. Homer Venters, # 2 Exhibit Curriculum Vitae of Dr. Carlos Franco-Paredes)(Boykin, Olevia) (Entered: 04/30/2020)

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49 NOTICE by Mary Lou McDonough recommended court experts (Attachments: # 1 Attachment cv Dr. Brent Gibson, # 2 Attachment Dr. Gibson inspection proposal, # 3 Attachment cv Dr. Carl Keldie)(Murray, Andrew) (Entered: 04/30/2020)

50 Correspondence re: Explanation for recommendation of experts (Murray, Andrew) (Entered: 04/30/2020)

51 PAPERLESS ORDER: A recorded call has been scheduled for May 1, 2020 at 9:00 a.m. Instructions will be emailed to the parties. Signed by Judge Paula Xinis on 4/30/2020. (tb2s, Chambers) (Entered: 04/30/2020)

Recorded Telephone Conference held on 5/1/2020 before Judge Paula Xinis. (45 min) (tb2s, Chambers) (Entered: 05/01/2020)

52 PAPERLESS ORDER: A recorded call has been scheduled for May 1, 2020 at 3:00 p.m. Instructions will be emailed to the Parties. Signed by Judge Paula Xinis on 5/1/2020. (tb2s, Chambers) (Entered: 05/01/2020)

ORDER Appointing Carlos Franco-Paredes, MD, MPH as

53

Inspector. Signed by Judge Paula Xinis on 5/1/2020. (ybs, Deputy

Clerk) (Entered: 05/01/2020)

Recorded Telephone Conference held on 5/1/2020 before Judge Paula Xinis. (1 hour) (tb2s, Chambers) (Entered: 05/01/2020)

54 NOTICE of Appearance by Edward Henderson Williams, II on behalf of Mario Burch, John Does 1-5, Keith Seth, David Smith (Williams, Edward) (Entered: 05/01/2020)

55 MOTION to Appear Pro Hac Vice for Cadene Russell Brooks (Filing fee $100, receipt number 0416-8636245.) by Mario Burch, John Does 1-5, Keith Seth, David Smith(Williams, Edward) (Entered: 05/01/2020)

56 NOTICE by Mario Burch, John Does 1-5, Keith Seth, David Smith Joint in Support of Dr. Robert Greifinger as Court Appointed Monitor (Attachments: # 1 Exhibit Curriculum Vitae and Litigation Testimony)(Boykin, Olevia) (Entered: 05/04/2020)

57 Joint MOTION for Protective Order by Mario Burch, John Does 1-5, Keith Seth, David Smith (Attachments: # 1 Text of Proposed Order)(Rossi, Elizabeth) (Entered: 05/04/2020)

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58 PAPERLESS ORDER granting 55 Motion to Appear Pro Hac Vice on behalf of Cadene Russell Brooks. Directing attorney Cadene Russell Brooks to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 5/4/2020. (srds, Deputy Clerk) (Entered: 05/04/2020)

59 STIPULATED PROTECTIVE ORDER. Signed by Judge Paula Xinis on 5/2/2020. (ybs, Deputy Clerk) (Entered: 05/04/2020)

60 PAPERLESS NOTICE of Hearing: Motion Hearing set for May 11, 2020 at 3:00 p.m. before Judge Paula Xinis. The hearing is expected to last 2 hours. Dr. Carlos Franco-Paredes shall be available to answer questions about his report and the Court will hear argument from counsel on the propriety of a TRO. (tb2s, Chambers) (Entered: 05/08/2020)

61 MOTION for Other Relief to Supplement the Record by Mario Burch, John Does 1-5, Keith Seth, David Smith (Attachments: # 1 Exhibit Second Declaration of Claire Glenn)(Rossi, Elizabeth) (Entered: 05/10/2020)

62 NOTICE by Mario Burch, John Does 1-5, Keith Seth, David Smith of Supplemental Authority (Williams, Edward) (Entered: 05/10/2020)

63 MOTION for Leave to Supplement Record for Hearing on Temporary Restraining Order by Mary Lou McDonough (Attachments: # 1 Affidavit, # 2 Supplement, # 3 Affidavit)(Murray, Andrew) Modified on 5/11/2020 (ybs, Deputy Clerk). (Entered: 05/11/2020)

64 Motion Hearing held on 5/11/2020 re 3 EMERGENCY MOTION for Temporary Restraining Order before Judge Paula Xinis.(Court Reporter: Marlene Kerr - Zoom) (bus, Deputy Clerk) (Entered: 05/11/2020)

65 COURT'S EXHIBIT LIST. (bus, Deputy Clerk) (Additional attachment(s) added on 5/14/2020: # 1 Exhibit 1) (bus, Deputy Clerk). (Entered: 05/11/2020)

LETTER ORDER regarding 64 Motion Hearing conducted on

66

May 11, 2020. Signed by Judge Paula Xinis on 5/12/2020. (ybs,

Deputy Clerk) (Entered: 05/12/2020)

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05/19/2020

67 STRICKEN - ORDER REFERRING CASE to Magistrate Judge Charles B. Day for Settlement. Signed by Judge Paula Xinis on 5/12/2020. (cags, Deputy Clerk) Modified on 5/12/2020 (cags, Deputy Clerk). (Entered: 05/12/2020)

68 PAPERLESS ORDER STRIKING 67 Order Referring Case to Magistrate Judge. Signed by Judge Paula Xinis on 5/12/2020. (tb2s, Chambers) (Entered: 05/12/2020)

69 Local Rule 103.3 Disclosure Statement by Mary Lou McDonough (Johnson, Shelley) (Entered: 05/13/2020)

70 ANSWER to 1 Complaint, by Mary Lou McDonough.(Johnson, Shelley) (Entered: 05/13/2020)

71 MOTION to File Under Seal and for Protective Order by Mary Lou McDonough(Johnson, Shelley) Modified on 5/14/2020 (ybs, Deputy Clerk). (Entered: 05/13/2020)

Substantive legal issues - addressing (Johnson, Shelley) (Entered:

72

05/18/2020)

(FILED IN ERROR)STATUS REPORT Joint by Mario Burch,

73

John Does 1-5, Keith Seth, David Smith(Williams, Edward)

Modified on 5/19/2020 (ybs, Deputy Clerk). (Entered: 05/18/2020)

Substantive legal issues - addressing (Chamblee Ryan, Katherine)

74

(Entered: 05/18/2020)

75 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 05/01/2020, before Judge Paula Xinis. Court Reporter/Transcriber Marlene Kerr, Telephone number 3013443499. Total number of pages filed: 21. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 6/9/2020. Redacted Transcript Deadline set for 6/19/2020. Release of Transcript Restriction set for 8/17/2020.(mmk, Court Reporter) (Entered: 05/19/2020)

76 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 05/11/2020, before Judge Paula Xinis. Court Reporter/Transcriber Marlene Kerr, Telephone number 3013443499. Total number of pages filed: 115. Transcript may be viewed at the court public terminal or purchased through the Court

05/19/2020
05/19/2020
05/19/2020 05/20/2020 05/20/2020 05/20/2020

Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 6/9/2020. Redacted Transcript Deadline set for 6/19/2020. Release of Transcript Restriction set for 8/17/2020.(mmk, Court Reporter) (Entered: 05/19/2020)

(FILED IN ERROR)Second MOTION for Other Relief To

77

Supplement Record by Mary Lou McDonough (Attachments:

# 1 Affidavit Earnest L. Carter, MD., Ph.D, # 2 Exhibit CDC

COVID 19 Hospitalization rates, # 3 Exhibit Jail Population

Profile, # 4 Affidavit Third affidavit of Mary Lou McDonough,

# 5 Affidavit Second affidavit of Jeff Logan, # 6 Attachment Attachment A to Logan affidavit - response to list of detainees for overdetention claim, # 7 Attachment attachment B to Logan Affidavit - Jail Pre-trial release policy, # 8 Attachment attachment C to Logan Affidavit - email exchange)(Murray, Andrew) Modified on 5/19/2020 (ybs, Deputy Clerk). (Entered: 05/19/2020)

78 Second MOTION for Other Relief To Supplement Record by Mary Lou McDonough (Attachments: # 1 Affidavit 77-1 Carter Affidavit, # 2 Exhibit 77-2 COVID Hospitalization graph, # 3 Exhibit 77-3 PGDOC Inmate Profile, # 4 Affidavit 77-4 McDonough Affidavit, # 5 Affidavit 77-5 Logan Affidavit, # 6 Exhibit 77-7 Attachment B to Logan Affidavit Pretrial Procedure, # 7 Exhibit 77-8 - Attachment C of Logan Affidaviit Email, # 8 Exhibit 77-6 Attachment A to Logan Affidavit)(Johnson, Shelley) (Entered: 05/19/2020)

REDACTED DOCUMENT Joint Status Report by Mario Burch,

79

John Does 1-5, Keith Seth, David Smith(Williams, Edward)

(Entered: 05/19/2020)

RESPONSE to Motion re 78 Second MOTION for Other

80

Relief To Supplement Record filed by Mario Burch, John Does 1-

5, Keith Seth, David Smith.(Chamblee Ryan, Katherine) (Entered:

05/20/2020)

81 Status Conference held on 5/20/2020 before Judge Paula Xinis.(Court Reporter: Marlene Kerr - Zoom) (bus, Deputy Clerk) (Entered: 05/20/2020)

82 ORAL ORDER granting 61 Motion to Supplement the Record; granting 63 Motion for Leave to Supplement Record for Hearing on Temporary Restraining Order; granting 78 Second Motion for Leave to Supplement Record for Hearing on Temporary

05/20/2020 05/21/2020 05/21/2020
05/26/2020 05/26/2020
05/26/2020
05/27/2020 05/27/2020

Restraining Order. Signed by Judge Paula Xinis on 5/20/2020. (bus, Deputy Clerk) (Entered: 05/20/2020)

83 ORAL ORDER directing counsel to file a Joint Proposed Scheduling by 05/27/2020. Signed by Judge Paula Xinis on 5/20/2020. (bus, Deputy Clerk) (Entered: 05/20/2020)

MEMORANDUM OPINION. Signed by Judge Paula Xinis on

84

5/21/2020. (kns, Deputy Clerk) (Entered: 05/21/2020)

85

ORDER granting in part and denying in part 3 Emergency

MOTION for Temporary Restraining Order. Signed by Judge

Paula Xinis on 5/21/2020. (kns, Deputy Clerk) (Entered:

05/21/2020)

86 NOTICE OF APPEAL by Mary Lou McDonough. Filing fee $ 505, receipt number 0416-8666951.(Johnson, Shelley) (Entered: 05/26/2020)

87 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 86 Notice of Appeal. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(nu, Deputy Clerk) (Entered: 05/26/2020)

88 RESPONSE re 85 Order on Motion for TRO filed by Mary Lou McDonough. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4)(Koshy, Ann) (Entered: 05/26/2020)

89 USCA Case Number 20-6776 for 86 Notice of Appeal filed by Mary Lou McDonough. Case Manager - Ashley Brownlee (nus, Deputy Clerk) (Entered: 05/27/2020)

90 MOTION to Stay re 84

Memorandum Opinion, 85

Order on Motion for TRO by Mary Lou McDonough (Attachments: # 1 Exhibit ECF 65 - Transcript 5-11-10 Hearing, # 2 Exhibit ECF 29-3 McDonough Affidavit, # 3 Exhibit ECF 785 Logan Affidavit, # 4 Exhibit ECF 29-1 Dr. Meskerem Asresahegn Affidavit, # 5 Exhibit ECF 88 Defendant's Five Day Report, # 6 Exhibit ECF 78-4 McDonough 3rd Affidavit, # 7 Exhibit ECF 78-1 Carter Affidavit, # 8 Exhibit ECF 3

05/27/2020 05/29/2020 06/02/2020 06/03/2020 06/05/2020 06/09/2020
06/10/2020

Plaintiffs' Emergency Motion for Temporary Restraining Order and Preliminary Injunction, # 9 Exhibit ECF 29-5 Defendant's Pandemic Policy)(Johnson, Shelley) (Entered: 05/27/2020)

91 STATUS REPORT Joint by Mario Burch, John Does 1-5, Keith Seth, David Smith (Attachments: # 1 Text of Proposed Order)(Williams, Edward) (Entered: 05/27/2020)

92 RESPONSE in Opposition re 90 MOTION to Stay re 84

Memorandum Opinion, 85 Order on Motion for TRO filed by Mario Burch, John Does 1-5, Keith Seth, David Smith.(Williams, Edward) (Entered: 05/29/2020)

93 SCHEDULING ORDER re ECF No. 91 STATUS REPORT; scheduling telephone conference on June 22, 2020 at 1:00 p.m. Signed by Judge Paula Xinis on 6/2/2020. (ybs, Deputy Clerk) (Entered: 06/02/2020)

94 LETTER ORDER denying 90 MOTION to Stay re 84

Memorandum Opinion, 85 Order on Motion for TRO by Mary Lou McDonough. Signed by Judge Paula Xinis on 6/3/2020. (ybs, Deputy Clerk) (Entered: 06/03/2020)

95 RESPONSE re 85 Order on Motion for TRO filed by Mary Lou McDonough. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4)(Koshy, Ann) (Entered: 06/05/2020)

96 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 05/20/20, before Judge Paula Xinis. Court Reporter/Transcriber Marlene Kerr, Telephone number 3013443499. Total number of pages filed: 63. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 6/30/2020. Redacted Transcript Deadline set for 7/10/2020. Release of Transcript Restriction set for 9/8/2020.(mmk, Court Reporter) (Entered: 06/09/2020)

ORDER of USCA denying Motion for stay pending appeal as

97

to 86 Notice of Appeal filed by Mary Lou McDonough (nus,

Deputy Clerk) (Entered: 06/10/2020)

06/12/2020

98 MOTION to Appear Pro Hac Vice for Kenneth S. Steely (Filing fee $100, receipt number 0416-8701086.) by Mary Lou McDonough(Koshy, Ann) (Entered: 06/12/2020)

06/12/2020

99 MOTION to Appear Pro Hac Vice for William R. Lunsford (Filing fee $100, receipt number 0416-8701090.) by Mary Lou McDonough(Koshy, Ann) (Entered: 06/12/2020)

06/12/2020

100 MOTION to Appear Pro Hac Vice for Stephen C. Rogers (Filing fee $100, receipt number 0416-8701093.) by Mary Lou McDonough(Koshy, Ann) (Entered: 06/12/2020)

06/12/2020 101

Emergency MOTION for Extension of Time to Complete Discovery by Mary Lou McDonough(Johnson, Shelley) (Entered: 06/12/2020)

06/15/2020

102 PAPERLESS ORDER GRANTING 101 Motion for Extension of Time to Complete Discovery. A recorded status call has been scheduled for June 16, 2020 at 9:00 a.m. for a half hour. Instructions were emailed to the parties. Signed by Judge Paula Xinis on 6/15/2020. (tb2s, Chambers) (Entered: 06/15/2020)

06/15/2020

103 MOTION for Relief Pursuant to Federal Rules of Civil Procedure 30(b)(4) by Mario Burch, Keith Seth, David Smith (Attachments:

# 1 Memorandum in Support, # 2 Text of Proposed Order)(Williams, Edward) (Entered: 06/15/2020)

06/16/2020

104 PAPERLESS ORDER granting 98 Motion to Appear Pro Hac Vice on behalf of Kenneth Steely. Directing attorney Kenneth Steely to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 6/16/2020. (srds, Deputy Clerk) (Entered: 06/16/2020)

06/16/2020

105 PAPERLESS ORDER granting 99 Motion to Appear Pro Hac Vice on behalf of William R Lunsford. Directing attorney William R Lunsford to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 6/16/2020. (srds, Deputy Clerk) (Entered: 06/16/2020)

06/16/2020

106 PAPERLESS ORDER granting 100 Motion to Appear Pro Hac Vice on behalf of Stephen Rogers. Directing attorney Stephen Rogers to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration.

06/18/2020 06/19/2020 06/19/2020 06/19/2020 06/19/2020
06/19/2020
06/22/2020 06/22/2020 06/22/2020
06/25/2020

Signed by Clerk on 6/16/2020. (srds, Deputy Clerk) (Entered: 06/16/2020)
107 NOTICE by Mario Burch, John Does 1-5, Keith Seth, David Smith Joint Proposed Protective Order (Williams, Edward) (Entered: 06/18/2020)
108 PROTECTIVE ORDER. Signed by Judge Paula Xinis on 6/19/2020. (ybs, Deputy Clerk) (Entered: 06/19/2020)
109 Substantive legal issues - addressing (Attachments: # 1 Appendix Exhibits)(Chamblee Ryan, Katherine) (Entered: 06/19/2020)
110 Substantive legal issues - addressing (Johnson, Shelley) (Entered: 06/19/2020)
111 Supplemental to 110 Substantive legal issues - addressing filed by Mary Lou McDonough (Attachments: # 1 Affidavit Chubb Declaration and Exhibits, # 2 Affidavit Meski Declaration and Exhibits, # 3 Exhibit Exhibits for Meski Declarataion)(Johnson, Shelley) (Entered: 06/19/2020)
112 RESPONSE re 85 Order on Motion for TRO filed by Mary Lou McDonough. (Attachments: # 1 Exhibit 1 - COVID19 Positive Detainees REDACTED)(Koshy, Ann) (Entered: 06/19/2020)
113 MOTION for Leave to File Supplement by Mario Burch, John Does 1-5, Keith Seth, David Smith (Attachments: # 1 Supplement)(Chamblee Ryan, Katherine) (Entered: 06/22/2020)
114 Status Conference held on 6/22/2020 before Judge Paula Xinis. (Court Reporter: Renee Ewing-Zoom) (ss5s, Deputy Clerk) (Entered: 06/22/2020)
115 PAPERLESS ORDER: A follow zoom video conference has been scheduled for July 2, 2020 at 12:00 p.m. A joint status report should be submitted by 12:00 p.m. on July 1, 2020 consistent with matters discussed during today's conference. Signed by Judge Paula Xinis on 6/22/2020. (tb2s, Chambers) (Entered: 06/22/2020)
116 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6-16-2020, before Judge Xinis. Court Reporter/Transcriber Linda C Marshall, Telephone number 3013443229. Total number of pages filed: 35. Transcript may be

07/01/2020 07/02/2020 07/02/2020
07/03/2020 07/06/2020 07/06/2020 07/07/2020

viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 7/16/2020. Redacted Transcript Deadline set for 7/27/2020. Release of Transcript Restriction set for 9/23/2020.(lcm, Court Reporter) (Entered: 06/25/2020)
117 NOTICE by Mario Burch, John Does 1-5, Keith Seth, David Smith Joint Status Report (Williams, Edward) (Entered: 07/01/2020)
118 Status Conference held on 7/2/2020 before Judge Paula Xinis.(Court Reporter: Linda Marshall) (ds2s, Deputy Clerk) (Entered: 07/02/2020)
119 PAPERLESS ORDER: For the reasons stated on the record during the June 22, 2020 hearing (ECF No. 114 ), the Court denies extension and modification of the TRO issued by the Court on
May 21, 2020 (ECF No. 85 ); the TRO is hereby extinguished. For the same reasons, the Court denies Plaintiffs'
Motion for Preliminary Injunction (ECF No. 3 ). Signed by Judge Paula Xinis on 7/2/2020. (ybs, Deputy Clerk) (Entered: 07/02/2020)
120 (FILED IN ERROR) AMENDED COMPLAINT against All Defendants, filed by Keith Seth, John Does 1-5, Mario Burch, David Smith.(Chamblee Ryan, Katherine) Modified on 7/7/2020 (ybs, Deputy Clerk). (Entered: 07/03/2020)
121 SCHEDULING ORDER: Status Report due by 10/23/2020. Signed by Judge Paula Xinis on 7/6/2020. (heps, Deputy Clerk) (Entered: 07/06/2020)
122 LETTER ORDER Regarding the Filing of Discovery Motions. Signed by Judge Paula Xinis on 7/6/2020. (heps, Deputy Clerk) (Entered: 07/06/2020)
123 QC NOTICE: 120 Amended Complaint filed by John Does 1-5, Mario Burch, David Smith, Keith Seth needs to be corrected. It has been noted as FILED IN ERROR, and the document link has been disabled. The following corrective actions are needed regarding missing or incomplete information: **Motion for leave to file amended complaint is required. Please file the motion for leave to file as the main document, and the

07/07/2020 07/07/2020
07/08/2020
07/15/2020 07/17/2020 07/17/2020

clean version of the amended complaint and redline version as two separate attachments to the motion. (ybs, Deputy Clerk) (Entered: 07/07/2020)
124 AMENDED COMPLAINT against All Defendants, filed by Keith Seth, John Does 1-5, Mario Burch, David Smith. (Attachments:
# 1 Attachment Redlined Amended Complaint)(Chamblee Ryan, Katherine) Modified on 7/7/2020 (ybs, Deputy Clerk). Modified on 7/7/2020 (ybs, Deputy Clerk). (Entered: 07/07/2020)
125 (FILED IN ERROR)QC NOTICE: 124 Amended Complaint filed by John Does 1-5, Mario Burch, David Smith, Keith Seth needs to be corrected. It has been noted as FILED IN ERROR, and the document link has been disabled. The following corrective actions are needed regarding missing or incomplete information: **Motion for leave to file amended complaint is required. Please file the motion for leave to file as the main document, and the clean version of the amended complaint and redline version as two separate attachments to the motion. (ybs, Deputy Clerk) Modified on 7/7/2020 (ybs, Deputy Clerk). (Entered: 07/07/2020)
126 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 06/22/2020, before Judge Xinis. Court Reporter/Transcriber Renee Ewing, Telephone number 301-3443227. Total number of pages filed: 109. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 7/29/2020. Redacted Transcript Deadline set for 8/10/2020. Release of Transcript Restriction set for 10/6/2020.(re, Court Reporter) (Entered: 07/08/2020)
127 MOTION to Appear Pro Hac Vice for Katherine Hubbard (Filing fee $100, receipt number 0416-8755319.) by Mario Burch, John Does 1-5, Keith Seth, David Smith(Rossi, Elizabeth) (Entered: 07/15/2020)
128 MOTION to Dismiss for Failure to State a Claimor alternatively Summary Judgment by Mary Lou McDonough (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Exhibit)(Johnson, Shelley) (Entered: 07/17/2020)
129 -SEALED - NOTICE of Filing Under Seal Exhibit A by Mary Lou McDonough re 128 MOTION to Dismiss for Failure to State a Claimor alternatively Summary Judgment (Attachments:

# 1 Exhibit A)(Johnson, Shelley) Modified on 7/20/2020 (ybs, Deputy Clerk). (Entered: 07/17/2020)

07/17/2020

130 -SEALED - NOTICE of Filing Under Seal Exhibit B by Mary Lou McDonough (Attachments: # 1 Exhibit B)(Johnson, Shelley) Modified on 7/20/2020 (ybs, Deputy Clerk). (Entered: 07/17/2020)

07/17/2020

131 MOTION to Seal Exhibits A and B of Motion to Dismiss/Summary Judgment by Mary Lou McDonough(Johnson, Shelley) (Entered: 07/17/2020)

07/22/2020

132 PAPERLESS ORDER granting 127 Motion to Appear Pro Hac Vice on behalf of Katherine Hubbard. Directing attorney Katherine Hubbard to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 7/22/2020. (srds, Deputy Clerk) (Entered: 07/22/2020)

07/28/2020

133 MOTION for Extension of Time to File Response/Reply as to 128 MOTION to Dismiss for Failure to State a Claimor alternatively Summary Judgment by Mario Burch, John Does 1-5, Keith Seth, David Smith(Chamblee Ryan, Katherine) (Entered: 07/28/2020)

07/29/2020

134 PAPERLESS ORDER GRANTING 133 Motion for Extension of Time. Plaintiff's Response to 128 MOTION to Dismiss is extended to August 7, 2020. Signed by Judge Paula Xinis on 7/29/2020. (tb2s, Chambers) (Entered: 07/29/2020)

08/07/2020

135 RESPONSE in Opposition re 128 MOTION to Dismiss for Failure to State a Claimor alternatively Summary Judgment filed by Mario Burch, John Does 1-5, Keith Seth, David Smith.(Chamblee Ryan, Katherine) (Entered: 08/07/2020)

08/12/2020 136

ORDER of USCA granting Motion to dismiss appeal as to 86 Notice of Appeal filed by Mary Lou McDonough (nus, Deputy Clerk) (Entered: 08/12/2020)

08/12/2020

137 JUDGMENT of USCA dismissing the appeal as to 86 Notice of Appeal filed by Mary Lou McDonough (Attachments: # 1 Notice of judgment)(nus, Deputy Clerk) (Entered: 08/12/2020)

08/21/2020

138 MOTION to Appear Pro Hac Vice for Susanna M. Buergel (Filing fee $100, receipt number 0416-8821005.) by Terry A. Kupers, Dallas Augustine, Robert L. Cohen, Pablo Stewart, Cyrus Ahalt, Stuart Grassian(Kumar, Sonia) (Entered: 08/21/2020)

08/21/2020

139 MOTION to Appear Pro Hac Vice for Darren W. Johnson (Filing fee $100, receipt number 0416-8821016.) by Cyrus Ahalt, Dallas Augustine, Robert L. Cohen, Stuart Grassian, Terry A. Kupers, Pablo Stewart(Kumar, Sonia) (Entered: 08/21/2020)

08/21/2020

140 MOTION to Appear Pro Hac Vice for Golda Lai (Filing fee $100, receipt number 0416-8821020.) by Cyrus Ahalt, Dallas Augustine, Robert L. Cohen, Stuart Grassian, Terry A. Kupers, Pablo Stewart(Kumar, Sonia) (Entered: 08/21/2020)

08/21/2020

141 MOTION to Appear Pro Hac Vice for David C. KimballStanley (Filing fee $100, receipt number 0416-8821027.) by Cyrus Ahalt, Dallas Augustine, Robert L. Cohen, Stuart Grassian, Terry A. Kupers, Pablo Stewart(Kumar, Sonia) (Entered: 08/21/2020)

08/21/2020

142 MOTION to Appear Pro Hac Vice for Megan L. Gao (Filing fee $100, receipt number 0416-8821036.) by Cyrus Ahalt, Dallas Augustine, Robert L. Cohen, Stuart Grassian, Terry A. Kupers, Pablo Stewart(Kumar, Sonia) (Entered: 08/21/2020)

08/21/2020

143 MOTION for Leave to File Brief of Amici Curiae Medical and Public Health Experts in Support of Plaintiffs by Cyrus Ahalt, Dallas Augustine, Robert L. Cohen, Stuart Grassian, Terry A. Kupers, Pablo Stewart (Attachments: # 1 Exhibit A-[Proposed] Brief of Amici Curiae)(Kumar, Sonia) (Entered: 08/21/2020)

08/21/2020 144

REPLY to Response to Motion re 128 MOTION to Dismiss for Failure to State a Claimor alternatively Summary Judgment filed by Mary Lou McDonough.(Johnson, Shelley) (Entered: 08/21/2020)

08/22/2020

145 MOTION to Drop Plaintiffs Mario Burch and John Doe No. 3 Pursuant to Federal Rule of Civil Procedure 21 by Mario Burch, John Does 1-5 (Attachments: # 1 Memorandum in Support)(Williams, Edward) (Entered: 08/22/2020)

08/24/2020

146 Correspondence re: Filing of Objection and Response to ECF 143 and 145 (Johnson, Shelley) (Entered: 08/24/2020)

08/27/2020

147 Joint MOTION to Stay and for a telephonic conference by Mario Burch, John Does 1-5, Keith Seth, David Smith(Williams, Edward) (Entered: 08/27/2020)

08/31/2020

148 PAPERLESS ORDER granting 138 Motion to Appear Pro Hac Vice on behalf of Susanna M Buergel. Directing attorney Susanna M Buergel to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password

can be reset at http://www.mdd.uscourts.gov/electronic-casefiling-password-reset. Signed by Clerk on 8/31/2020. (srds, Deputy Clerk) (Entered: 08/31/2020)

08/31/2020

149 PAPERLESS ORDER granting 139 Motion to Appear Pro Hac Vice on behalf of Darren Johnson. Directing attorney Darren Johnson to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filing-passwordreset. Signed by Clerk on 8/31/2020. (srds, Deputy Clerk) (Entered: 08/31/2020)

08/31/2020

150 PAPERLESS ORDER granting 140 Motion to Appear Pro Hac Vice on behalf of Golda Lai. Directing attorney Golda Lai to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 8/31/2020. (srds, Deputy Clerk) (Entered: 08/31/2020)

08/31/2020

151 PAPERLESS ORDER granting 141 Motion to Appear Pro Hac Vice on behalf of David Kimball Stanley. Directing attorney David Kimball Stanley to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electroniccase-filing-password-reset. Signed by Clerk on 8/31/2020. (srds, Deputy Clerk) (Entered: 08/31/2020)

08/31/2020

152 PAPERLESS ORDER granting 142 Motion to Appear Pro Hac Vice on behalf of Megan L Gao. Directing attorney Megan L Gao to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 8/31/2020. (srds, Deputy Clerk) (Entered: 08/31/2020)

09/03/2020 153

MANDATE of USCA issued as to 86 Notice of Appeal filed by Mary Lou McDonough (nus, Deputy Clerk) (Entered: 09/03/2020)

09/04/2020 154

MOTION to Withdraw as Attorney by Mario Burch, John Does 15, Keith Seth, David Smith(Boykin, Olevia) (Entered: 09/04/2020)

09/04/2020

155 RESPONSE in Opposition re 143 MOTION for Leave to File Brief of Amici Curiae Medical and Public Health Experts in Support of Plaintiffs filed by Mary Lou McDonough.(Steely, Kenneth) (Entered: 09/04/2020)

09/04/2020

156 SUPPLEMENTAL to 155 Memorandum re 143 MOTION for Leave to File Brief of Amici Curiae Medical and Public Health

Experts in Support of Plaintiffs -Memorandum of Law in Support of Response in Opposition filed by Mary Lou McDonough.(Steely, Kenneth) Modified on 9/8/2020 (ybs, Deputy Clerk). (Entered: 09/04/2020)

09/08/2020 157

RESPONSE in Opposition re 145 MOTION to Drop Plaintiffs Mario Burch and John Doe No. 3 Pursuant to Federal Rule of Civil Procedure 21 filed by Mary Lou McDonough. (Attachments: # 1 Memorandum in Support MOL in Support of Opposition)(Koshy, Ann) (Entered: 09/08/2020)

09/10/2020

158 Joint Request for Conference (Koshy, Ann) (Entered: 09/10/2020)

09/17/2020

159 PAPERLESS ORDER: A recorded call has been scheduled for September 18, 2020 at 9:30 a.m. re 158 Correspondence. Instructions will be emailed to the parties. Signed by Judge Paula Xinis on 9/17/2020. (tb2s, Chambers) (Entered: 09/17/2020)

09/18/2020

160 PAPERLESS ORDER: The Court hereby STAYS all deadlines pending the outcome of settlement discussions. The parties are DIRECTED to provide the Court with a written joint status report within ten (10) days after the conclusion of the settlement conference in the event the case does not settle. Signed by Judge Paula Xinis on 9/18/2020. (tb2s, Chambers) (Entered: 09/18/2020)

09/24/2020 161

ORDER REFERRING CASE to Magistrate Judge Timothy J. Sullivan for Mediation. Signed by Judge Paula Xinis on 9/24/2020. (hmls, Deputy Clerk) (Entered: 09/24/2020)

09/29/2020

Telephone Conference held on 9/29/2020 before Magistrate Judge Timothy J. Sullivan. (jmm, Chambers) (Entered: 09/29/2020)

09/30/2020 162

LETTER ORDER Scheduling Settlement Conference for Friday, October 23, 2020 at 10:00 a.m. Signed by Magistrate Judge Timothy J. Sullivan on 9/29/2020. (jmm, Chambers) (Entered: 09/30/2020)

10/26/2020

163 Settlement Conference held on 10/23/2020 before Magistrate Judge Timothy J. Sullivan. (jmm, Chambers) (Entered: 10/26/2020)

11/04/2020

Telephone Conferences held on 11/3/2020 before Magistrate Judge Timothy J. Sullivan. (jmm, Chambers) (Entered: 11/04/2020)

11/30/2020

164 PAPERLESS ORDER Scheduling a follow-up Telephonic Settlement Conference for Tuesday, December 1, 2020. The

conference will begin promptly at 2:00 p.m. and Counsel should be prepared to continue after 5:00 p.m. Call-in instructions are being emailed to counsel of record. Signed by Magistrate Judge Timothy J. Sullivan on 11/30/2020. (jmm, Chambers) (Entered: 11/30/2020)

12/02/2020

Follow-up telephonic settlement conference held on 12/1/2020 before Magistrate Judge Timothy J. Sullivan. (jmm, Chambers) (Entered: 12/02/2020)

12/03/2020

165 PAPERLESS ORDER granting 154 Motion to Withdraw as Attorney. Attorney Olevia Boykin terminated. Signed by Judge Paula Xinis on 12/3/2020. (jf3s, Deputy Clerk) Modified on 12/3/2020 (jf3s, Deputy Clerk). (Entered: 12/03/2020)

12/07/2020 166

MOTION to Appear Pro Hac Vice for Ellora Thadaney Israni (Filing fee $100, receipt number 0416-8999438.) by Mario Burch, John Does 1-5, Keith Seth, David Smith(Williams, Edward) (Entered: 12/07/2020)

12/07/2020

167 Telephone Conference held on 12/7/2020 before Magistrate Judge Timothy J. Sullivan. (jmm, Chambers) (Entered: 12/07/2020)

12/07/2020

168 PAPERLESS ORDER Scheduling a follow-up Telephonic Settlement Conference for Thursday, December 10, 2020. The conference will begin promptly at 1:00 p.m. and Counsel should be prepared to continue after 5:00 p.m. Call-in instructions are being emailed to counsel of record. Signed by Magistrate Judge Timothy J. Sullivan on 12/7/2020. (jmm, Chambers) (Entered: 12/07/2020)

12/09/2020

169 PAPERLESS ORDER granting 166 Motion to Appear Pro Hac Vice on behalf of Ellora Thadaney Israni. Directing attorney Ellora Thadaney Israni to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 12/9/2020. (srd, Deputy Clerk) (Entered: 12/09/2020)

12/11/2020

Continuation of Settlement Conference held on 12/10/2020 before Magistrate Judge Timothy J. Sullivan. (jmm, Chambers) (Entered: 12/11/2020)

12/29/2020

Settlement Conference continuation held on 12/29/2020 before Magistrate Judge Timothy J. Sullivan. (jmm, Chambers) (Entered: 12/29/2020)

02/18/2021 02/19/2021
02/24/2021 03/01/2021 03/11/2021

170 MOTION to Withdraw as Attorney by Mary Lou McDonough(Koshy, Ann) (Entered: 02/18/2021)
171 PAPERLESS ORDER granting 170 Motion to Withdraw as Attorney. Attorney Ann Elizabeth Koshy terminated. Signed by Judge Paula Xinis on 2/19/2021. (heps, Deputy Clerk) Modified on 2/19/2021 (heps, Deputy Clerk). (Entered: 02/19/2021)
172 Joint MOTION to Stay re 160 Order, by Mary Lou McDonough(Johnson, Shelley) (Entered: 02/24/2021)
173 PAPERLESS ORDER granting 172 Motion to Stay re 160 Order. Signed by Judge Paula Xinis on 3/1/2021. (ybs, Deputy Clerk) (Entered: 03/01/2021)
Telephone Conference held on 3/11/2021 before Magistrate Judge Timothy J. Sullivan. (jmm, Chambers) (Entered: 03/11/2021)

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8:20-cv01028-PX
2.10

 Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 1 of 47

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

KEITH SETH, DAVID SMITH, MARIO BURCH, and JOHN DOES 1–5, Individually and on behalf of a class of similarly situated persons,
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections,
Defendant-Respondent.

)

)

)

)

)

)

)

)

)

Case No.

)

)

)

)

)

)

)

)

)

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRITS OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241
STATEMENT OF THE CASE 1. There is an uncontrolled outbreak of COVID-19 at the Prince George’s County Jail (“the Jail”).1 2. The Jail’s actions fueled this outbreak, and it has also failed to take appropriate action in response.

1 Since Defendant McDonough is being sued in her official capacity, “Defendant McDonough” and “the Jail” are used interchangeably in this motion.

Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 2 of 47
3. The prisoners2 housed there—predominantly pretrial detainees—are under a constant and substantial threat of contracting the disease, and those already infected receive grossly substandard medical treatment (if they receive treatment at all).
4. Because jails, prisons, and other detention and correctional facilities are particularly vulnerable to COVID-19, the U.S. Centers for Disease Control and Prevention (CDC) has recommended basic measures these facilities should take to control the spread of the virus and treat infected prisoners—for example, providing prisoners with free access to soap and evaluating prisoners for symptoms.
5. The Jail has ignored these and other public health recommendations. 6. As a result, the nearly 600 people now imprisoned at the Jail are denied even the minimal precautions necessary to mitigate against the risks of COVID-19. 7. The people confined in the Jail do not have adequate soap (the Jail charges money for it). They regularly wait a week or more for medical attention (that costs money too). The spaces they share with other prisoners are not adequately sanitized. They are denied basic hygienic supplies. Symptomatic inmates are regularly turned away by medical staff, returning to general housing where they will surely infect others. 8. Prisoners who test positive for COVID-19 are confined in filthy isolation cells, where the walls are covered in feces, mucus, and blood. They are barely monitored and receive no real treatment. 9. By maintaining these conditions, Defendant McDonough has needlessly exposed the people imprisoned in the Jail to a highly infectious and potentially fatal disease. This violates prisoners’ Eighth and Fourteenth Amendment rights.
2 For simplicity, the term “prisoner” is used throughout to describe the people who are currently incarcerated at the Prince George’s County Jail, both pretrial and post-conviction.
2

Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 3 of 47
10. The Jail also refuses to release COVID-positive prisoners—even when they have no legal basis to detain them—until the Jail deems them non-contagious. This violates prisoners’ Fourteenth Amendment rights.
11. Plaintiffs3 seek class-wide relief requiring the Jail to take the necessary steps to safeguard prisoners’ health and safety. A subset of Plaintiffs also request a writ of habeas corpus pursuant to 28 U.S.C. § 2241 for prisoners whose age or underlying medical conditions make them particularly vulnerable to severe illness and death from COVID-19 (the “Medically Vulnerable Subclass”).
JURISDICTION AND VENUE 12. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a), and 2241(a). This Court has jurisdiction over Medically Vulnerable Subclass’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 13. Venue is proper in this District under 28 U.S.C. § 1391(b) because the events giving rise to the claims asserted in this complaint occurred in this District.
PARTIES 14. Plaintiff Keith Seth is detained pretrial in Housing Unit 17 at the Prince George’s County Jail. He has chronic bronchitis for which he was hospitalized last year. He is currently experiencing symptoms of COVID-19, including loss of taste, diarrhea, coughing and severe shortness of breath. He cannot afford to pay the money required to request medical assistance. Mr. Seth has bipolar disorder; since the outbreak at the Jail, he has not received needed mental health treatment. See Ex. 1, Seth Decl. Mr. Seth filed a bond motion on April 8, 2019. It is still pending.
3 The term “Plaintiff(s)” includes the Medically Vulnerable Subclass members, who are also petitioners seeking habeas relief.
3

Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 4 of 47
15. Plaintiff David Smith is detained pretrial in Housing Unit 9 at the Prince George’s County Jail. He suffers from chronic bronchitis. Since the outbreak, the Jail has not provided Mr. Smith with needed mental health treatment. See Ex. 2, Smith Decl. Mr. Smith filed a motion for bond reconsideration on April 8, 2020. That motion is scheduled for a hearing on April 24, 2020.
16. Plaintiff Mario Burch is detained pretrial in Housing Unit 8 at the Prince George’s County Jail. He has not seen anyone clean or sanitize any surfaces in his unit. He is “extremely scared of contracting the virus.” Ex. 3, Burch Decl. Mr. Burch’s bond was originally set at $3000, but he could not afford to purchase his release. On April 9, 2020, the court revoked his bond. He is facing two charges, each of which has a statutory maximum sentence of 90 days.
17. Plaintiff John Doe No. 14 is detained pretrial in Housing Unit 10 at the Prince George’s County Jail. He suffers from acute asthma. He has recently experienced symptoms of COVID-19: headaches, nausea, and shortness of breath. His cellmate also has symptoms of COVID-19. See Ex. 4, John Doe No. 1 Decl. On March 19, 2020, a court approved Mr. Doe No. 1 be released on home detention with GPS monitoring. The Pretrial Services Agency (“pretrial services”), which is part of the Department of Corrections, has not released him.
18. Plaintiff John Doe No. 2 is detained post-conviction in Housing Unit 17 (the work unit) at the Prince George’s County Jail. He suffers from severe asthma, for which he previously has been hospitalized. He has been spitting up brown mucus and having trouble breathing. Mr. Doe No. 2 has asked for medical attention or a test for COVID-19, but he was refused and told that the Medical Unit is too full. He asked for an inhaler, but his request was denied. On April 9, Mr. Doe No. 2 filed a motion requesting to serve his sentence on home detention. His motion has not been set for a hearing. See Ex. 5, John Doe No. 2 Decl.
4 John Doe Nos. 1-5 will seek leave to proceed by pseudonym.
4

Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 5 of 47
19. Plaintiff John Doe No. 3 is detained pretrial in the Prince George’s County Jail. He uses a cane to walk and has numerous medical issues. Prior to the outbreak, Mr. Doe was housed in the Medical Unit. In late March, he was transferred to Housing Unit 11-B, which houses medically vulnerable prisoners, but (unlike the Medical Unit) does not have any on-site medical equipment or staff. He is currently experiencing sneezing and a cough. See Ex. 6, Decl. John Doe. No. 3 Decl. On April 9, 2020, a court approved Mr. Doe No. 3 for release to pretrial services. Pretrial services has not released him. Mr. Doe No. 3 is detained on a single count of violating a protective order, which carries a statutory maximum of 90 days.
20. Plaintiff John Doe No. 4 is detained pretrial in Housing Unit 9 at the Prince George’s County Jail. At least four detainees from Housing Unit 9 have been sent to the Medical Unit and not come back. One of them was his cellmate. See Ex. 7, John Doe No. 4 Decl. A court has approved Mr. Doe No. 4 for transfer to home detention, but pretrial services has not transferred him to home detention.
21. Plaintiff John Doe No. 5 is detained in Housing Unit 8 of the Prince George’s County Jail. He has asthma, chronic bronchitis, and is obese. Due to the poor circulation in his cell, he has been having difficulty breathing. Many people on his unit seem sick. See Ex. 8, John Doe No. 5 Decl. A court set bond for Mr. Doe No. 5 at $3000, with an option to be released upon paying 10 percent of it. Mr. Doe No. 5 cannot afford to purchase his release. The court has also approved Mr. Doe No. 5 for pretrial supervised release. Pretrial services has not released him.
22. Defendant Mary Lou McDonough is the Director of the Prince George’s County Department of Corrections. She is sued in her official capacity.
5

Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 6 of 47
FACTUAL ALLEGATIONS A. COVID-19 Is Highly Infectious and Dangerous 23. On March 11, 2020, the World Health Organization (“WHO”) declared the outbreak of COVID-19 a global pandemic.5 24. States and counties across the nation have hurried to take the “urgent and aggressive action” the WHO deems necessary to slow the infection rate of the virus.6 25. Still, to date, more than 750,000 Americans are known have contracted COVID-19 and it has caused at least 35,000 deaths.7 26. D.C., Maryland and Virginia have reported more than 24,000 cases,8 and Maryland leads the region in both the number of cases and deaths: In the 46 days9 following Maryland’s first three confirmed cases, 12,836 people have tested positive for the disease and 544 people have died.10
5 World Health Organization, Director-General Opening Remarks (March 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-themediabriefing-on-covid-19---11-march-2020. 6 Id. 7 U.S. Map, Johns Hopkins School of Medicine (updated April 20, 2020) https://coronavirus.jhu.edu/us-map. 8 Jenna Portnoy, Patricia Sullivan, and Antonio Olivo, Coronavirus in the DMV: What you need to know, Wash. Post (Apr. 19, 2020) https://www.washingtonpost.com/dc-mdva/2020/03/07/maryland-virginia-dc-coronavirus/?arc404=true#maryland. 9 Jenna Fulginiti, Tramon Lucas, and Greg Ng, Timeline: Coronavirus in Maryland, WBALTV (Apr. 19, 2020) https://www.wbaltv.com/article/timeline-coronavirus-in-maryland/31394971#. 10 Portnoy, supra note 7.
6

Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 7 of 47
27. COVID-19 is highly contagious. An infected person can spread the virus through brief, indirect contact with others. Every time an infected person coughs, sneezes, or speaks, she might pass the virus to those in her vicinity.11
28. The virus can survive on inanimate surfaces like cardboard, plastic or steel for up to three days.12 The respiratory droplets from an infected individual can linger in the air for as many as three hours.13
29. An unknown number of infected people are nearly or entirely asymptomatic. This means a person who has contracted the virus can pass it to others without knowing she is sick. Accordingly, some researchers insist, “Everyone should act as if they are already infected.”14
30. For those who contract COVID-19, the results can be dire. 31. An estimated sixteen percent of those who contract it will suffer severe illness. Ex. 30, Meyer Decl. ¶ 9. 32. In the United States, roughly three percent of those who are infected die. Ex. 32, Benninger Decl. ¶ 2(G)(i).

11 Ex. 30, Meyer Decl. ¶ 8 (“The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces.”). See also Ex. 31, Meyer Curriculum Vitae.

12 Neeltje van Doremalen et al., Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, New England J. Medicine (March 17, 2020), https://www.nejm.org/doi/full/10.1056/NEJMc2004973.

13 Ex. 32, Benninger Decl. ¶ 2(C); see also Ex. 33, Benninger Curriculum Vitae.

14 Nina Bai, Coronavirus Is Sickening Young Adults and Spreading Through Them, Experts Say,

University

of

California

San

Francisco

(Mar.

20,

2020)

https://www.ucsf.edu/news/2020/03/416961/coronavirus-sickening-young-adults-and-spreading-

through-them-experts-say.

7

Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 8 of 47
33. Twenty percent of those who contract COVID-19 will need hospitalization, and five percent will require intensive care. Id. ¶ 2(F).
34. Those who survive the virus may suffer long-term damage to the heart, liver, and lungs.15
35. These risks of severe illness and death are more acute for people who are over a certain age or who have pre-existing conditions, including asthma, lung disease, heart disease, and diabetes.16
36. Without effective public health measures, the U.S. Centers for Disease Control and Prevention (CDC) has projected that over 200 million people could be infected.17
37. This would overrun the healthcare system, making it impossible for many critically ill people to receive the care they need to live.18

15 Melissa Healy, Coronavirus infection may cause lasting damage throughout the body, doctors

fear, L.A. Times (April 10, 2020), https://www.latimes.com/science/story/2020-04-

10/coronavirus-infection-can-do-lasting-damage-to-the-heart-liver (describing studies finding

impaired liver function and heart failure in COVID-19 patients); Panagis Galiatsatos, What

Coronavirus

Does

to

the

Lungs,

Hopkins

Medicine,

https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/what-coronavirus-

does-to-the-lungs (describing potential long-term lung damage from COVID-19).

16 Centers for Disease Control, At Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-

ncov/need-extra-precautions/groups-at-higher-risk.html (last reviewed Apr. 15, 2020).

17 James Glanz, et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say,

N.Y.

Times

(Mar.

20,

2020),

available

at

https://www.nytimes.com/interactive/2020/03/20/us/coronavirus-model-us-outbreak.html.

18 Leana Wen, Hospitals are overwhelmed because of the coronavirus. Here’s how to help., N.Y. Times (Mar. 15, 2020), https://www.washingtonpost.com/opinions/2020/03/15/hospitals-areoverwhelmed-because-coronavirus-heres-how-help; see also Ex. 30, Meyer Decl. ¶ 10 (“Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.”).

8

Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 9 of 47
38. To prevent this, the shape of daily life for most Americans has radically changed: 97 percent of the U.S. population is now subject to some degree of imposed shutdown or stay athome decree.19
39. On March 30, Maryland Governor Larry Hogan issued a stay-at-home order, mandating that residents may leave their homes only as needed to work essential jobs or complete essential tasks, like purchasing food and medicine.20
40. On the same day, D.C. Mayor Muriel Bowser and Virginia Governor Ralph Northam announced stay-at-home orders that require residents to stay in their homes and cease all non-essential activities until May 15, 202021 and June 10, 2020,22 respectively.
41. Even with these extreme measures, which have been replicated across the country, the national infection curve “has not yet flattened,”23 and data suggests that, for D.C., Maryland and Virginia, the peak of the virus may be weeks or months away.
19 All Your Coronavirus Questions Answered, Time (Apr. 14, 2020), https://time.com/5820118/coronavirus-questions-answered. 20 The Office of Governor Larry Hogan, As COVID-19 Crisis Escalates in Capital Region, Governor Hogan Issues Stay at Home Order Effective Tonight (Mar. 30, 2020) https://governor.maryland.gov/2020/03/30/as-covid-19-crisis-escalates-in-capital-regiongovernor-hogan-issues-stay-at-home-order-effective-tonight. 21 On April 15, Mayor Bowser announced that the D.C. order would extend until May 15. Marty Johnson, DC extends stay-at-home order through May 15, The Hill (Apr. 15, 2020) https://thehill.com/homenews/state-watch/492928-dc-extends-stay-at-home-order-through-may15. 22 Executive Order Number 55, Temporary Stay At Home Order Due to Novel Coronavirus (COVID-19) (Mar. 30, 2020) https://www.governor.virginia.gov/media/governorvirginiagov/executiveactions/EO-55-Temporary-Stay-at-Home-Order-Due-to-Novel-Coronavirus-(COVID-19).pdf 23 All Your Coronavirus Questions Answered, supra note 19.
9

Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 10 of 47
42. The University of Pennsylvania Medicine’s COVID-19 Hospital Impact Model for Epidemics predicts that the regional peak of COVID-19 infections and deaths will occur in late June or early July.24
43. Though it may be difficult for those who have already spent weeks at home to fathom, the best evidence indicates that D.C., Maryland, and Virginia are at only “the end of the beginning” of this crisis.25
B. COVID-19 is Causing a Crisis in Prince George’s County 44. Prince George’s County is the “epicenter of [the COVID-19 epidemic in] the state.”26 45. As of April 14, the County had 2356 confirmed cases and 72 deaths.27 Though Prince George’s County makes up only 15 percent of the state’s population, its COVID-19 deaths have made up nearly 25 percent of the total COVID-19 deaths in the state of Maryland.28

24 Jeffrey Katz and Martin Austermule, How Close Is The D.C. Region To Flattening 'The Curve'

Of

The

Coronavirus?,

NPR

(Apr.

10,

2020)

https://www.npr.org/local/305/2020/04/10/831751001/how-close-is-the-d-c-region-to-flattening-

the-curve-of-the-coronavirus.

25 Brad McMillan, A Coronavirus Milestone: The Flattening Of The Curve, Forbes (Apr. 14, 2020) https://www.forbes.com/sites/bradmcmillan/2020/04/14/a-coronavirus-milestone-the-flatteningof-the-curve/#71bc0f3e4ba5.

26 Rachel Chason, Hospitals in Prince George’s seeing an influx of critically ill coronavirus patients, Washington Post (Apr. 14, 2020), https://www.washingtonpost.com/local/princegeorges-hospitals-coronavirus-crisis/2020/04/14/2ac05724-7e7f-11ea-904068981f488eed_story.html.

27 Id.

28 Fulguniti, supra note 9.

10

Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 11 of 47
46. The County has high rates of diabetes, heart disease, hypertension and obesity— conditions that make one more vulnerable to complications from the virus.29 The County has had a shortage of healthcare provider shortage for years. Up to 60 percent of residents travel out-ofcounty for care.30
47. In addition, in recent weeks, medical professionals across the country have seen racial disparities in COVID-19 infection, hospitalization, and mortality rates.31 Black people who are infected are more likely to suffer severe illness and die.32 An analysis by the Washington Post found that majority-black counties had infection-rates three times that of majority-white counties.33
29 Regional Primary Care Coalition, The Healthcare Landscape in Prince George’s County: Opportunities for Improvement, available at http://www.regionalprimarycare.org/wpcontent/uploads/2018/07/The-Healthcare-Landscape-in-Prince-Georges-County.pdf. 30 Id. At 9. 31 John Eligon, et al., Black Americans Face Alarming Rates of Coronavirus Infection in Some States, N.Y. Times (Apr. 7, 2020), https://www.nytimes.com/2020/04/07/us/coronavirusrace.html. 32 Ex. 32, Benninger Decl. ¶ 2(h) (“Preliminary data suggest that African-Americans are suffering from more severe illness related to COVID-19 at higher rates than other races in the United States.”). 33 Reis Thebault, Andrew Ba Tran, and Vanessa Williams, The coronavirus is infecting and killing black Americans at an alarmingly high rate, Wash. Post (Apr. 7, 2020), https://www.washingtonpost.com/nation/2020/04/07/coronavirus-is-infecting-killing-blackamericans-an-alarmingly-high-rate-post-analysis-shows/?arc404=true. These disparities exist because other inequities and disparities do. Black people disproportionately hold jobs in which they are unable or not allowed to work from home, putting them at risk of contracting the virus on their way to or at work. Black people also have higher rates of the underlying medical conditions that CDC says put people at higher risk of severe illness from COVID-19. Id.
11

Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 12 of 47
48. Accordingly, because the majority (64 percent) of Prince George’s County is Black, the people of Prince George’s County are more susceptible to COVID-19 than other counties across the state.
49. Area hospitals are “inundated with critically ill patients” and are at or exceeding their capacities.34
50. Beginning April 14, at least two County hospitals—Prince George’s Hospital and MedStar Southern Maryland Hospital Center—were forced to send patients to out-of-county hospitals because they had no room in their own critical care units, even though both hospitals have been rapidly adding beds within the facility and in tents outside of the building.35
51. On March 16, Prince George’s County Executive Angela Alsobrooks declared a state of emergency due to COVID-19.36
52. On April 7, Governor Larry Hogan flagged Prince George’s County, along with ten others, to the White House as needing “urgent federal attention.”37
53. In addition to Maryland’s statewide stay-at-home order, the County has instituted a number of efforts to slow the spread of the virus.
34 Chason supra note 26. 35 Id. 36 Office of the Prince George’s County Executive Angela D. Alsobrooks, County Executive Alsobrooks Officially Declares A State Of Emergency In Prince George’s County Due To Covid19 (Mar. 16, 2020) https://www.princegeorgescountymd.gov/ArchiveCenter/ViewFile/Item/3171 37 Andrea Swalec, White House Designates DC-Baltimore Area as an ‘Emerging Hot Spot’ for Coronavirus, Hogan Says, NBC Washington (Apr. 7, 2020) https://www.nbcwashington.com/news/local/white-house-has-designated-dc-baltimore-area-asemerging-hot-spot-for-virus-hogan-says/2266929.
12

Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 13 of 47

54. As early as March 12, 2020, the County announced that its Courthouse would close to the public until May 1, 2020.38
55. The Circuit Court and District Court issued orders outlining the limited operations courts would continue to perform.
56. On March 16, County Executive Alsobrooks closed all restaurants, movie theaters, gyms and bars, and closed to the public all government buildings.39
57. On April 10, the County announced on that it had set up a quarantine site for first responders to “ensure[] they will not take the virus home to their families should they be exposed.”40
58. As of April 15, residents have been ordered to cover their faces when they go to the grocery store or the pharmacy, or when they the ride the County’s bus system.41
B. Jails and Prisons Are Exceedingly Vulnerable to COVID-19 59. Epidemics pose a heightened risk in jails, prisons, and detention centers. 60. These “[c]ongregate settings . . . allow for rapid spread of infectious diseases that
are transmitted from person to person.” Ex. 30, Meyer Decl. ¶ 16.

38 Prince George’s County Courts, The Courthouse is closed to the Public through June 5, 2020,

due

to

the

Coronavirus

Pandemic

(Mar.

12,

2020)

https://www.princegeorgescourts.org/AlertCenter.aspx?AID=The-Courthouse-is-closed-to-the-

Public-t-22.

39 County Executive Official Declares A State of Emergency supra note 43.

40 Prince George’s County, Community Connections Newsletter: COVID-19 Update (Apr. 10, 2020) https://content.govdelivery.com/accounts/MDPGC/bulletins/285c9ff.

41 Office Of The Prince George’s County Executive Angela D. Alsobrooks, County Executive Alsobrooks To Sign Executive Order Requiring Face Coverings For Patrons In Grocery Stores (Apr. 11, 2020) https://www.princegeorgescountymd.gov/DocumentCenter/View/29817/PressRelease---Face-Coverings.

13

Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 14 of 47

61. well.42

Diseases that spread in these facilities imperil the communities around them as

62. At a time when it is imperative that the County flatten its curve, correctional

facilities like Prince George’s County Jail “drive up the curve.”43

63. Moreover, as a general matter, jails and prisons are often poorly equipped to enact

adequate prevention measures and care for incarcerated people who get sick. Ex. 30, Meyer Decl.

¶¶ 17–18.

64. And because people incarcerated in jails and prisons are more likely to have chronic

underlying health conditions, “they are more susceptible to acquiring and experiencing

complications from infectious diseases than the population in the community.” Id. ¶ 20.44

65. These concerns multiply in the face of COVID-19, which is both highly

communicable and highly dangerous.

42 Ex. 30, Meyer Decl. ¶ 16 (“Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. . . . Prison health is public health.”); see also Ex. 34, Haney Decl. ¶ 17 (“Staff members are at risk of having contracted COVID-19 and then transmitting it to all those inside the institutions, including prisoners and other staff.”).
43 Philip Jackson, Maryland jails are incubators for the coronavirus and precautions must be taken to avoid an outbreak, experts say, Baltimore Sun (Mar. 13, 2020) https://www.baltimoresun.com/coronavirus/bs-md-ci-coronavirus-maryland-jails-20200313zn4k2knuujgvnhqmpm63jib3la-story.html.
44 See Ex. 32, Benninger Decl. ¶ 3(c) (“[Prisoners] are higher risk at baseline than the general population for having more severe complications from COVID-19 because they are disproportionately more likely to be afflicted with medical chronic conditions, be obese, and be African-American. In addition, they are more susceptible to mental health complications, especially during this pandemic, because they are more likely to have mental health comorbidities and pandemics and isolation can increase feelings of anxiety and depression.”).
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66. “Containing this virus has been difficult in the community and it is almost impossible in correctional health settings given the congregate environment.” Ex. 32, Benninger ¶ 3(B).45
67. As a result, “people will die behind bars of coronavirus who would have survived in the community.” Id.
C. There is a COVID-19 Outbreak at the Prince George’s County Jail 68. The first case of COVID-19 at the Prince George’s County Jail was reported on March 30, 2020.46 69. Addressing this case, Defendant DOC Director Mary Lou McDonough told The Washington Post, “I expect we’ll have more before this is over,” and compared jails to “cruise ships without the views or the amenities.”47 70. As Defendant McDonough explained, “A jail is a pretty transitory place. People are close together. You’re all breathing the same air.”48
45 See also Ex. 30, Meyer Decl. ¶ 24 (“When even the most sophisticated hospital systems in this country have been overwhelmed by the COVID-19 pandemic, it will be impossible for prison health systems to contain it. This is especially true when emergency preparedness plans are underdeveloped.”). 46 Deb Belt, “Female Inmate at Prince George’s County Jail Has Coronavirus,” Patch.com (Mar. 30, 2020), https://patch.com/maryland/bowie/female-inmate-prince-georges-county-jail-hascoronavirus. 47 Keith L. Alexander, Dan Morse, and Spencer S. Hsu, “As inmates in D.C., Maryland and Virginia test positive for the coronavirus, jail officials scramble to reduce the risk,” Wash. Post (Apr. 1, 2020), https://www.washingtonpost.com/local/public-safety/as-inmates-in-dc-marylandand-virginia-test-positive-for-the-coronavirus-jail-officials-scramble-to-reduce-therisk/2020/04/01/b0d9cfd8-7363-11ea-85cb-8670579b863d_story.html. 48 Id.
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71. Four days after the first case, on April 3, 2020, a total of three prisoners and one jail guard had tested positive for the virus.49
72. The DOC has not reported the number of COVID-19 cases at the jail since that
date.
73. But the virus continues to spread.
74. Over the last month, prisoners have seen people removed from their housing units or reporting to the Medical Unit because of COVID-19 symptoms.50
75. Some jail guards are missing from their regular shifts.51 76. Many prisoners appear to be sick.52 From what they have been able to observe from
their cells or the Medical Unit, Plaintiffs are aware of at least 14 prisoners with confirmed cases
of COVID-19 across at least half of the jail’s ten adult housing units.
77. A jail guard told the prisoners in one housing unit that there are 77 cases of COVID-
19 at the jail. Ex. 8, John Doe No. 5 Decl. ¶ 13.
49 Laura Wainman, “3 Inmates, 1 Correctional Officer at Prince Georges Department of Corrections Test Positive for Coronavirus,” WUSA9 (Apr. 3, 2020), https://www.wusa9.com/article/news/health/coronavirus/coronavirus-prince-georges-county-jailinmates-officer/65-b4e2051e-7b29-41e7-96f3-eb2a9473e038. 50 Ex. 5, John Doe No. 2 Decl. ¶5 (“In the last 10 days at least six individuals have been removed from my housing unit because they were experiencing symptoms of the coronavirus, including my bunkmate.”); Ex. 25, Decl. 25¶16 (“I would guess at least six people from my unit alone, H17, have gotten infected.”); Ex. 15, Decl. 15 ¶6 (observing “more people going to the medical unit than was typical”); Ex. 24, Dec24 ¶4 (“Four people have left the unit and not returned.”). 51 Ex. 24, Decl. 24 ⁋4 (“Two of the regular officers for the evening shift have not been seen for a few weeks.”). 52 Ex. 15, Decl. 15 ¶6 (“I have heard many people coughing on the unit and in the last two weeks”); Ex. 24, Decl. 24 ¶4 (“There seems to be a flu or sickness spreading around the unit, for over 3 weeks now.”); Ex. 24, Decl. 24 ¶5 (“There are 82 people in my unit. Many of them are sick or have been sick.”).
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78. As one prisoner described it, “I feel like everyone in the unit is catching it. . . . [I]t seems like almost everyone is sick.” Ex. 21, Decl. 21 ¶12.
D. The Jail Has Not Taken Basic Precautions to Prevent the Spread of COVID-19 79. On March, 23, the CDC issued explicit recommendations to correctional facilities about how to prevent or slow the spread of COVID-19. See Ex. 36, U.S. Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities (March 23, 2020). 80. Many of these measures are basic. For example, corrections facilities should “[c]reate and test communications plans to disseminate critical information to incarcerated/detained persons, staff, etc. as the pandemic progresses.” Ex. 36, CDC at 5. 81. But the jail has not provided prisoners with information about COVID-19, its symptoms, or how to protect themselves from it.53 82. The CDC also provides clear guidelines on cleaning, disinfecting, and hygiene. Several times a day, staff should “clean and disinfect surfaces and objects that are frequently
53 Ex. 10, Decl. 10 ¶ 8 (“They never gave us any warning or any memorandum in our housing unit saying what was going on, what Coronavirus is, what you can do to protect yourself, what the symptoms are. We never saw one memorandum in our whole housing block. We were never told to stay six to ten feet away from people. Nothing. Of course, every time there’s a change to the phone system or the commissary system, we get a memorandum. But they never gave us a memorandum about Coronavirus.”); Ex. 11, Decl. 11¶ 8 (“They didn’t make any announcement or anything telling us about it, and the jail was being locked down more and more at that time.”); Ex. 22, Decl. 22 ¶ 5 (“The jail [has not been] specific about the symptoms.”). See also Ex. 32, Benninger Decl.¶ 3(I) (“Inmates are not being informed of jail policies regarding COVID-19. They have not received information in writing or verbally regarding COVID-19 or prevention strategies. They have not received guidance regarding social distancing. . . .Inmates are restricted from watching television news related to the nature of solitary confinement. Inmates do not have sufficient source of updated information regarding COVID-19.”)
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touched in common areas. Ex. 36, CDC at 9. Facilities should provide prisoners with “no-cost
access” to “liquid soap” and “tissues.” Ex. 36, CDC at 10.
83. None of this happens at the Prince George’s County Jail.
84. Prisoners do not have liquid soap or hand sanitizer.54
85. The jail gives prisoners one or two bars of soap when they first arrive.55 If prisoners
want soap after that, they can buy bar soap from the commissary. 56 Prisoners may only buy one
bar of soap per week. Ex. 8, John Doe No. 5 ¶ 17.
86. “If you don’t have money, you can’t buy soap[.]” Ex. 13, Decl. 13 ⁋ 9. Many
prisoners who cannot afford it do not have soap at all. Ex. 19, Decl. 19 ¶ 15. They “use only water
to try and wash themselves.” Ex. 3, Burch Decl. ¶ 7.57 Some trade food for soap.
87. Jail staff do not regularly clean and sanitize shared amenities or surfaces in the
housing units’ common areas.58
54 See Ex. 36, CDC at 10 (recommending that inmates be provided no-cost access to liquid soap and, if possible, hand sanitizer). 55 Decl. 13 (Ex. 13) ¶ 9 (“I came in fairly recently, so I have a bar of soap, but many do not have adequate personal cleaning supplies.”); Ex. 3, Burch Decl. ¶ 7 (“I currently have one bar of soap that I received from the jail when I came in.”).
56 Ex. 15, Decl. 15 ¶ 9 (“[D]etainees with access to funds can buy soap from the Commissary for approximately $2.50 per bar.”). Hygiene kits also contain a bar of soap, along with toothpaste, a toothbrush, and deodorant; they can be purchased at the commissary for $9. Ex. 9, Decl. 9 ¶ 17.
57 Ex. 32, Benninger Decl.¶ 3(D) (“Inmates in medical isolation are experiencing significant delays, up to a week, in receiving hygiene items and soap. Inability to access soap is inappropriate during a pandemic.”)
58 Ex. 15, Decl. 15 ¶8 (“The only time surfaces and areas are cleaned down is the beginning of each shift. During the day, as people circulate within the housing unit, no steps are taken to wipe down shared surfaces. The staff clean their own areas such as their command desks but I have not seen them clean any other areas during shifts.”); Ex. 19, Decl. 19 ¶10 (“The unit is no cleaner now than it was before the outbreak.”); Ex. 3, Burch Decl. ¶9 (“I have not seen anyone clean or sanitize any surfaces in my housing unit.”); Ex. 18, Decl. 18 ¶16 (“During the day, as people circulate within the housing unit, no steps are taken to wipe down shared surfaces. I sometimes see staff
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88. Phones are not regularly cleaned between uses. On some units, they are never cleaned.59
89. The cells of prisoners who have been transferred to the Medical Unit for COVID19 are left dirty and unsanitized for days, despite the fact that cells are shared.
90. Prisoners do not have their own cleaning supplies. They can request them—a spray bottle and paper towels (which are rationed)—to clean their own cells during their hour of recreation time.
91. Even these supplies are limited, and prisoners cannot always get them.60 92. The CDC suggests that correctional facilities implement “social distancing” strategies. “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.” Ex. 36, CDC at 4. 93. However, the Jail has not enacted (or explained) effective social distancing measures.
wiping down surfaces, but these are generally just the desks or other surfaces that the staff regularly use – not the ones we detainees interact with.”). 59 Ex. 15, Decl. 15 ¶7 (“The phones are not cleaned between uses.”); Ex. 2, Smith Decl. ¶11 (“The phone is not getting wiped down between people using it.”); Ex. 23, Decl. 23 ¶12 (“To my knowledge, detail only cleans the phones once a day.”); Ex. 25, Decl. 25 ¶10 (“Generally, phones are not cleaned between uses, though individual inmates will do their best. As I was talking to my lawyer on the phone on April 10, 2020, I observed several guys finish phone calls, and the phones were not cleaned.”); Ex. 8, John Doe No. 5 Decl. ¶ 14 (“The phones are not cleaned between uses.”). 60 Ex. 30, Meyer Decl. ¶ 29. (“Inconsistent access to hygiene and disinfection measures will result in widespread infection throughout the facility.”)
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94. The vast majority of prisoners are sharing their roughly 60 square foot cells with a

cellmate, sleeping in bunks directly on top of one another.

95. Even prisoners in different cells are less than six feet apart.

96. Jail guards enter prisoners’ cells multiple times a day to do count.61 As one prisoner

explained, “I come within six feet of nine guards every day. All three on the shift come in your

cell when they do count, and that happens three times a day. There is no way to avoid having them

come into your cell.” Ex. 16, Decl. 16 ¶ 9. Guards do not wear gloves, and only some of them wear

masks.62 97.

Jail staff have not explained the concept of social distancing.63 As a result, some

prisoners did not know that they should stay six feet away from others—especially those with

symptoms of COVID-19.

98. Plaintiff Keith Seth learned about the social distancing guidelines for the first time

on the phone from his lawyer. On hearing this, Mr. Seth realized that he had been within a foot of

a sick prisoner earlier that same day:

“[Earlier today] the person in the cell next to me had to go to the medical unit because he was sneezing, shaking, and sweating. I was just talking to him yesterday, and when I was talking with him I was within a foot of him. I did not know that I was being unsafe in talking to him so closely because I have not been told by anybody to stay away from other inmates. The only information I received is to stay six feet away from the officer’s desk. I have no received no information about how to protect myself from the Coronavirus.”64
61 “Count” refers to the head count that jail guards perform to make sure that no prisoners are missing.

62 Ex. 20, Decl. 20 ¶ 18 (“Correctional officers come in to do arm band checks [as part of count] and many times don’t have their masks on.”); Ex. 5, John Doe No. 2 Decl. ¶ 10 (“Some of the correctional officers wear masks, some don’t. None of them wear gloves.”). See also Ex. 27, Decl. 27 ¶ 14 (“[W]e know that [the virus] can come in from them. They leave and go out into the world every day. They are putting us in jeopardy if they are not cautious.”).
63 Ex. 8, John Doe No. 5 Decl. ¶ 10 (“Other than the division of recreational time, no efforts [have] been made towards encouraging or ordering social distancing.”).
64 Ex. 1, Seth Decl. ¶ 9.
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99. The Jail’s limited attempts at social distancing measures are markedly careless. Although recreation time has been staggered in groups of 10, the same group of prisoners does not always take recreation together each day.
100. Thus, infected prisoners, who may be contagious for up to two weeks before exhibiting symptoms,65 can infect a new set of other prisoners at recreation each day, and then those prisoners can infect even more. See Ex. 30, Meyer Decl. ¶ 30 (noting that while staggered recreation can be an effective social distancing strategy, it is “not useful to prevent the spread of disease if recreation is staggered with different individuals each day (i.e. different groups of 10).”).
101. When prisoners show symptoms of COVID-19, Jail staff do not (as the CDC recommends) place them in medical isolation. See Ex. 36, CDC Guidance at 10 (“As soon as an individual shows symptoms of COVID-19, they . . . should be immediately placed under medical isolation in a separate environment from other individuals”).66
102. Instead, in late March and early April, when the COVID-19 outbreak at the jail began, jail guards and medical staff routinely disregarded prisoners’ COVID-19 symptoms.
103. Prisoners visited the medical unit with fevers, shortness of breath, coughing, chills, headaches, and fluid in the chest, and medical staff sent them back to their housing units with Claritin or Tylenol.67
65 See Ex. 32, Benninger Dec. ¶ 2(D). 66 See Ex. 30, Meyer Decl. ¶ 27 (“One of the most critical infection control measures in correctional settings is to accurately identify people who are ill and medically isolate them from the general population.”). 67 Ex. 19, Decl. 19 ¶ 5 (“Last week, I felt really bad for two or three days. I had body aches, a runny nose, and what felt like fluid in my chest. . . .Once in Medical, someone I think was a nurse took my temperature. It was 101 or 102. Despite this, I only remained in the medical unit for ten or 15 minutes. I was told to return to my cell and drink fluids. That was all.”); Ex. 17, Decl. 17 ¶ 4 (“Two days ago I had a headache and felt like I had a fever, and I was sneezing. I went to sick
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104. The CDC recommends that staff avoid “transporting [symptomatic] individual[s] through the facility.” Ex. 36, CDC at 10. Instead, these individuals should be placed in medical isolation68 and “refer[red] to healthcare staff for further evaluation.” Ex. 36, CDC at 10.
105. But Jail staff shuttled sick prisoners back and forth between the Medical Unit and their cells multiple times—including prisoners who later tested positive for COVID-19.
106. For example, one pretrial detainee, Declarant 9, who has “asthma, a prior history of bronchitis, and a seizure disease,” began to feel sick on Wednesday, March 25, 2020. Ex. 9, Decl. 9 ¶¶ 3–4. By the next day, he “was sweating profusely, vomiting, and [was] too weak to get out of [his] cell.” Id. ¶ 4.
107. He asked his cellmate to tell the jail guards that he needed medical attention. Guards responded that he was “playing” and would “be alright.” Id. So he waited eight hours for the next shift to begin.
108. After the shift change, the new jail guards were afraid to come near him because of his symptoms. They asked another inmate to put on a glove, enter Declarant 9’s cell, and touch his forehead. When the inmate showed the officer the glove, soaked in sweat, the officers sent Declarant 9 to sick call. Id. ¶ 5.
109. A nurse took Declarant 9’s temperature. It was 101.2 degrees. Declarant 9 told her about his symptoms and said he believed they were serious. The nurse told him he had “been [at
call. They gave me headache medicine and Claritin and sent me back to the unit. I asked to be tested for the virus, but they said they don’t have any tests.”). Ex. 21, Decl. 21 ¶ 5 (“Some people have asked for medication/treatment, medical exams, and have been told that what they have is not serious, or it’s a cold.”); see Ex. 30, Meyer Decl. ¶ 31. (“[P]risoners are given Claritin- a decongestant that is entirely useless for COVID-19.”). 68 “Medical isolation” requires moving a person to “a separate environment from other individuals,” and “keep[ing] the individual’s movement outside the medical isolation space to an absolute minimum.” Ex. 36, CDC at 15.
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the Jail] too long to catch the virus,” gave him Tylenol, and sent him back to his housing unit. Id. ¶ 6.
110. Over the following two days, Declarant 9 went back and forth between the medical unit and his housing unit four times. Each time he went to the Medical Unit, he had to pay $4. Id. ¶ 7.69
111. On Friday, April 3, Declarant 9 tested positive for COVID-19. 112. Other COVID-positive prisoners experienced similar treatment. Declarant 11, a pretrial detainee, first developed symptoms at the end of March with “headache, fever, chills, runny nose, and heavy sweating.” Ex. 11, Decl. 11 ¶ 4. 113. At a sick call on April 1, his temperature was 103 degrees. Declarant 11 was given Tylenol and a paper mask and returned to his housing unit. Id. ¶ 6. 114. Declarant 11 went back and forth between the Medical Unit and his housing unit three times. During one of his visits to medical, Declarant 11 mentioned that his cellmate had been in the Medical Unit for six days. When the staff realized that Declarant 11’s cellmate had tested positive for COVID-19, they tested Declarant 11 too. Id. ¶ 10. 115. He tested positive for COVID-19 on April 5. Id. ¶ 11. 116. Declarant 12, a pretrial detainee, began to feel sick on Thursday, March 26 with “chills, body aches, coughing, and fatigue.” Ex. 12, Decl. 12 ¶¶ 3–4. He visited the Medical Unit twice that day, and his temperature was measured at 100, and then 101 degrees. Id. Each time, the nurse sent him back to his cell. Id.
69 Prisoners request medical help by filling out a form for a “sick call.” Every “sick call” costs $4. Ex. 3, Burch Decl. ¶ 11 (“If an inmate puts in a sick call they have to pay money in order to go to the infirmary.”); Ex. 26, Decl. 26 ¶ 5 (“It costs $4 to go to a sick call. I can afford this, but not everyone in the jail can.”).
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117. The next day, Declarant 12 went to the Medical Unit again. His temperature was 104.7 degrees. Id. But the nurse sent Declarant 12 back to his cell. Id. ¶¶ 3-5. Ultimately, Declarant 12 went back and forth between his housing unit and the Medical Unit five times before he was transferred to the Medical Unit for COVID-19. Id. ¶ 3. Each time, Declarant 12 had to pay $4 for the sick call. Id.
118. When prisoners with symptoms of COVID-19 are sent back to their housing units from medical, they are not isolated, and other prisoners are not warned. As one prisoner described:
“In some cases, people on the unit have gone to sick call and been sent back, and then they go again and again, and we hear later on that they had the coronavirus. The same people who later left and I heard they had the coronavirus, we had been playing spades with them at the tables just days before. I have told my family that I love them because I feel sure I am going to get the virus in here.”70 119. The CDC also provides that prisoners with symptoms of COVID-19 should be required to wear face masks whenever they are outside of isolation. Ex. 36, CDC at 15.71 A facility should “[p]rovide clean masks as needed,” and “[m]asks should be changed at least daily, and when visibly soiled or wet.” Ex. 36, CDC at 15. 120. This does not happen at the Prince George’s County Jail. Jail staff gave each prisoner one thin, single-use paper mask on April 6, 2020. Ex. 14, Decl. 14 ¶ 5. The Jail does not provide replacements—including to symptomatic prisoners who remain in general population.
70 Ex. 17, Decl. 17 ¶ 7. 71 See Ex. 32, Benninger Decl.¶ 2(E) (“CDC has recommended wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain, especially in areas of significant community-based transmission. . . .Cloth face masks should be laundered before each daily use.”)
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Before this, symptomatic prisoners who remained in general population did not have masks at all.72
121. In the Medical Unit, the jail provides a mask to some prisoners with suspected or confirmed cases of COVID-19, but it does not provide them with replacements. Ex. 10, Decl. 10 ¶ 17 (“All we have are little worn-out paper face masks. I’ve had the same facemask since [the previous Friday, eight days prior to the declaration], and we’re all breathing the same air.”).
122. In early April, medical staff began taking every prisoner’s temperature twice a day. But the checks are not conducted in every housing unit. And as implemented, the checks are further opportunities for infection: the temperature reader is not cleaned between uses, Ex. 24, Decl. 24 ¶ 8, and the medical staff do not change their gloves, Ex. 25, Decl. 25 ¶12.
123. The checks have also been conducted without regard to social distancing guidelines. When they began, prisoners lined up back to front, with no space between them, to have their temperatures taken. Ex. 10, Decl. 10 ¶ 5. In recent days, prisoners have instead been asked to put their heads through the slot in the cell door.
124. At these temperature checks, some prisoners with fevers are sent to the Medical Unit. Some are returned to their housing unit that same night. Ex. 10, Decl. 10 ¶ 10.
125. Prisoners with symptoms of COVID-19 who do not have fevers are not taken to medical.73
72 Ex. 5, John Doe No. 2 ¶6 (“The masks that were provided are the disposable paper kind, but we are not being given replacement masks, we have to continue to use the same mask without any way to sanitize the mask.”); Ex. 8, John Doe No. 5 Decl. ¶ 6 (“Usually four to six people go to Medical Unit per day—and not always the same people. When people return from the Medical Unit, their masks may be on or off. There is no consistency.”). 73 Ex. 18, Decl. 18 ¶5 (“[I]f detainees only display symptoms without a high temperature, they remain on the unit in general population.”).
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126. But even some who do have fevers are told to remain in general housing. For example, Declarant 10 is a prisoner with high blood pressure and seizures. Ex. 10, Decl. 10 ¶ 3. Even when Declarant 10 had COVID-19 symptoms and a fever, jail staff did not take him to the Medical Unit:
“[O]n Friday, April 3, I started to have symptoms. I could feel aches in my spine and kidneys, and my body had fevers and chills. One minute I would feel like I’m freezing, and the next I’m heating up and my forehead is sweating. I also had diarrhea. And when I would drink liquids, my eye sockets would hurt. I started feeling shortness of breath. My nose was running, and I had a terrible headache. . . . At lunchtime on April 3, when they lined us up to take our temperatures, mine was 100 degrees. I told the nurse I wasn’t feeling right. But she told me, “you’ll be alright,” and left. At around 5:00 p.m. or 6:00 p.m., I started to have real difficulty breathing and my body was really aching and causing me a lot of pain. They told me to hold on and wait until the medical staff returned at 9:00 p.m. So I had no choice but to wait. That evening, when the medical staff came back again to take everyone’s temperature, mine was 104 degrees. They made me step to one side, along with four other guys, and then we all went to the medical unit around 11:00 p.m. They kept three of us, and sent two back to the housing unit.”74
127. Declarant 10 tested positive for Covid-19. Ex. 10, Decl. 10 ¶ 2. 128. Once a prisoner has tested positive for COVID-19, the CDC recommends careful attention to that prisoner’s contacts. Every person who has been within six feet of that prisoner should be placed in a 14-day quarantine. Ex. 36, CDC at 14. 129. However, jail staff do not affirmatively quarantine, isolate, or even inform prisoners when a person who lives within six feet of them has COVID-19 symptoms or even tests positive for the virus—even when that person is the prisoner’s cellmate.
74 Ex. 10, Decl. 10 ¶¶ 9–10.
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130. Nor do they disinfect cells where symptomatic or COVID-positive prisoners have lived.75
131. Indeed, jail staff—including even medical staff—do not appear to know which prisoners have tested positive for the virus.76
E. The Jail’s Limited Containment Methods Are Ineffective and Counterproductive
132. Instead of implementing the CDC’s recommendations to prevent COVID-19, at
the beginning of April, the Jail implemented a universal, preemptive lockdown of all prisoners.
133. Under the lockdown policy, prisoners must remain in their cells for 23 hours per
day.
134. Prisoner have one hour (which may be at 1:30 a.m. or some other odd hour) of
“recreation,” which is prisoners’ only chance to shower, go outside, or use the phones to call their attorneys77 or their families (if they are awake).78
135. Some jail guards also require prisoners to use that hour to clean their cells.
75 Ex. 7, John Doe No. 4 Decl. ¶6 (“My cell mate went to medical at 8 o’clock last night and he hasn’t come back. He was not feeling well he had a headache and stomach ache. When my cellie left last night, the staff did not do anything to disinfect my cell. I am waiting to get rec-time because that is the only time I can get cleaning supplies.”); id. (“I have seen 3 inmates leave on this unit so far, and not come back. … One was across the hall 3 or 4 days ago, he went to medical, his stuff is still in his cell. The guy across the way—his cell was within 5 feet of our cell.”). 76 Ex. 11, Decl. 11 ¶10 (“I told them that my cellmate had been in the medical unit for six days. That’s when they looked into things and realized that my cellmate had tested positive, so they had to test me too.”). 77 The prisoners’ limited time for phone use has also hindered contact with their attorneys. See Ex. 29, Glenn Decl. ¶¶ 16–22. This is particularly challenging given the pandemic-related delays in state court criminal cases. See generally Ex. 28, Schneller Decl. 78 Ex. 7, John Doe No. 4 Decl. ¶ 14 (“You can’t really talk to your family at 1 o’clock in the morning, my kids are asleep.).
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136. The lockdown appears to have no end date short of the pandemic’s end.
137. The CDC does not recommend preemptive lockdowns of all prisoners.
138. Instead, it recommends that correctional facilities achieve social distancing by, for
example, “[r]earranging seating in the dining hall so that there is more space between individuals,”
and “[c]onsider[ing] alternatives to existing group activities, in outdoor areas or other areas where
individuals can spread out.” Ex. 36, CDC at 11.
139. And it only recommends something akin to lockdown—that housing units
“quarantine in place”—when there is “contact with a case from the same housing unit” and that all
quarantines—including this sort—last for just 14 days. Ex. 36, CDC at 19.
140. Other public health experts recommend the same: time-limited lockdowns used only as necessary for quarantine and contact tracing.79
141. Experts also warn that preemptive lockdowns like those at the Jail are ineffective
and counterproductive in preventing the spread of COVID-19.
142. Indeed, on lockdown, opportunities for infection abound.
79 Ex. 30, Meyer Decl. ¶ 27 (“Lockdown can be important from a public health standpoint to enable social distancing during a pandemic but should be used only as a last resort and in a timelimited way (CDC recommends quarantines last no longer than 14 days) that is communicated clearly to the residents”); David Cloud, Dallas Augustine, and Brie Williams, The Ethical Use of Medical Isolation—Not Solitary Confinement—to Reduce COVID-19 Transmission in Correctional Settings, Amend at 3 (Apr. 7, 2020), available at https://amend.us/wpcontent/uploads/2020/04/Medical-Isolation-vs-Solitary_Amend.pdf [hereinafter “Medical Isolation—Not Solitary”] (“Corrections officials should only require people on an entire housing unit to stay in their cells (“Lockdown”) if medical professionals determine a symptomatic persons resides or works on that unit or contract tracing flags a confirmed or suspected case. In this event, time-limitations must be clearly communicated to residents and staff.”); Ex. 34, Haney Decl. ¶ 29 (“[T]he Jail should institute … lockdowns only where medically necessary to resolve discrete issues, such as sanitizing dorms or contact tracing of an infected prisoner. If the [Jail] resorts to these lockdowns, it should do so in a reasonably time-limited manner and communicate that timelimit to the prisoners who are affected.”).
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143. Most prisoners live with cellmates in hot, poorly ventilated cells.80 Even prisoners in different cells are less than six feet apart.
144. Thus, the lockdown policy—especially in combination with the Jail’s failure to medically isolate those with symptoms of COVID-19—traps prisoners in close proximity to people who may be sick. See Ex. 36, CDC at 19 (warning that quarantining prisoners together “could transmit COVID-19 from those who are infected to those who are uninfected.”); Ex. 30, Meyer Decl. ¶ 30 (stating that sustained lockdowns are “particularly problematic when inmates are locked down in poorly ventilated spaces that are shared closely with others, which may contribute to disease transmission from people who are infected with COVID-19 but have not yet reported symptoms.”).
145. For example, Plaintiff John Doe No. 2, who has severe asthma for which he has been hospitalized, is locked down with his cellmate, who has lost his sense of smell and taste (a symptom of COVID-19). Ex. 4, John Doe No. 2 Decl. ¶ 22; see also Ex. 7, John Doe No. 4 Decl. ¶ 14 ([I]t’s really bad when you can’t get come out of a cell for 23 hours I’m really scared now because my cellie has been sick.”); Ex. 17, Decl. 17 ¶ 6 (“My cellmate has been coughing and sneezing. They have us locked in 23 hours a day with 1 hour of recreation time. There is no way for my cellmate and I to distance ourselves from each other.”).
146. The Jail’s preemptive lockdown is counter-productive in other ways as well. Because prisoners’ one hour of out-of-cell time is their only chance to call their attorneys and families, they congregate by the phones (which are close together and rarely, if ever, cleaned).81
80 Ex. 5, John Doe No. 2 Decl. ¶12 (“It’s very hot in the cells. For the 23 hours we are in our cells a day, the cell door is kept closed. There is no noticeable air circulation, and the rest of the unit is very hot as well. The staff keeps the door to the recreation yard propped open.”); Ex. 1, Seth Decl. ¶ 94 (I am not getting good air circulation in the cell[.]”). 81 Ex. 30, Meyer Decl. ¶ 30 (observing that under the Jail’s preemptive lockdown policy, “[w]ith only 1 hour per day to use phones, it may be hard to enforce social distancing since prisoners need
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147. The lockdown also “decreases the interactions that prisoners have with correctional
and healthcare staff members, compromising the latter’s ability to identify symptoms,” further
ensuring that infected prisoners will remain in general population where they can spread the virus. Ex. 34, Haney Decl. ¶ 30.82
F. The Jail’s Conditions Increase the Risk of Severe Illness and Death 148. In addition to accelerating the COVID-19 outbreak, the Jail has also increased the
risk that those who are infected will suffer serious illness, permanent physical damage, and death.
149. Sick prisoners in general population lack access to medical care.
150. “Sick call” (a request for medical attention) costs $4, and some cannot afford to
pay. Some housing units have run out of sick call slips entirely. Ex. 19, Decl. 19 ¶ 6.
151. This prevents even prisoners who are medically vulnerable and have symptoms of
COVID-19 from seeking care.
152. For example, Plaintiff Seth explained:
“For about a week or two I have been experiencing shortage of breath and coughing. . . . About four days ago, I asked to get into the medical unit but they make you pay $4 for the form and I don’t have money for that. I am losing my sense of taste, I have hot chips that I eat and do not taste the hotness. It feels like my taste buds are numb. I have had diarrhea for about a week. . . . About two days ago I decided I should probably go to the medical unit. But I decided not to ask because I do not have the money for the form.”83
to congregate to use this precious resource”); Ex. 34, Haney Decl. ¶ 30 (“During th[e] limited one hour of out-of-cell time [under the Jail’s preemptive lockdown policy], prisoners crowd together to use the limited shared resources. . . . As a result, they are unable to maintain the recommended six feet of social distancing.”). 82 See Medical Isolation—Not Solitary at 2 (warning that “preemptively placing entire units on ‘lockdown’ for indefinite amounts of time” will likely mean that “interactions with correctional staff an healthcare staff often become less frequent and people with symptoms may go undetected”). 83 Ex. 1, Seth Decl. ¶¶ 9–11.
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153. Mr. Seth was also deterred from seeking care because so many prisoners with symptoms of COVID-19 were unable to get it at the Jail. He explains: “I know one guy who had a fever and they kept him for three days and sent him back. Another guy I know lost his sense of taste and his stomach hurt, but medical sent him back.” Ex. 1, Seth Decl. ¶ 11.
154. Moreover, as Mr. Seth’s experience demonstrates, the Jail has no plan for specially protecting medically vulnerable prisoners from COVID-19 or monitoring them if they become symptomatic.
155. Many prisoners with symptoms of COVID-19 cannot get medical attention for other reasons.
156. Jail staff has told prisoners that medical care is limited to emergency cases.84 157. Some prisoners who have made sick calls were seen by medical staff weeks later or not at all. For example, John Doe No. 2, who has previously been hospitalized for his severe asthma, told jail staff that he has asthma, was spitting up brown mucus, and was having trouble breathing. He was not taken to the medical unit for two weeks. Ex. 5, John Doe No. 2 ¶5; see also Ex. 19, Decl. 19 ¶ 6 (stating on April 9, 2020: “I first put in for sick call on March 23rd and I haven’t heard anything.”). 158. People who need medical care for anything other than COVID-19 generally cannot get it. Jail staff has told prisoners that they cannot receive medical services because the medical unit is locked down. Ex. 2, Smith Decl. ¶ 15. 159. Prisoners who made a sick call that was not about COVID-19 were told by corrections officers “that if it’s nothing relating to Corona not to write to medical.” Id.
84 Ex. 26, Decl. 26 ¶¶ 6–7 (“I was told my case was not serious enough to have additional care, and that the Medical Unit is only seeing emergency cases.”); Ex. 19, Decl. 19 ¶ 6 (“The guards have told me that they’re not bringing anyone down unless it’s an emergency.”).
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160. Prisoners who had lived in the medical unit due to chronic medical concerns have been transferred out.85
161. And many prisoners have been unable to obtain or change their medications— including prisoners with pre-existing conditions like asthma, which make them especially vulnerable to serious illness and death if they do become infected with COVID-19.86
162. Prisoners’ mental health is also at great risk. 163. Dr. Craig Haney, a psychologist and expert on prison isolation,87 has concluded that the punitive isolation methods that dominate the Jail’s approach to COVID-19 “greatly increase the psychological stress under which prisoners live, potentially leading to mental and physical deterioration, interpersonal conflicts, and self-harm and suicidality.” Ex. 34, Haney Decl. ¶ 20.88 164. As Dr. Haney explains, “The Prince George’s County Jail lockdown units are now being used in ways that are essentially identical to the solitary confinement-type housing that has
85 Ex. 6, John Doe No. 3 Decl. ¶ 4 (“When I first entered the Detention Center, I was placed in the Medical Unit. I have numerous medical issues, including neck and back issues, I walk with a cane, and I am currently having kidney issues, including blood in my urine. I was moved from the Medical Unit about halfway through my thirty-day incarceration, and I do not know why, but it may be because it was getting more crowded in the Medical Unit.”). 86 Ex. 2, Smith Decl. ¶ 15 (“I take medication and they haven’t consulted me to change the medication because I don’t like the side effects it gives me.”). 87 See Ex. 35, Haney Curriculum Vitae. 88 See also Medical Isolation—Not Solitary at 3 (“Research shows that keeping people socially isolated in a closed cell without a meaningful opportunity to communicate with family, friends, and loved ones or to participate in exercise, education, and rehabilitative programming (solitary confinement) causes immense, and often irreparable, psychological harm.”); Ex. 32, Benninger Decl. ¶ 3(J) (“I have concern that there has not been sufficient acknowledgement of or attention to the inmates’ mental health under the stressors of pandemic and solitary confinement.”).
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been shown to place prisoners at significant risk of grave harm (including damage that is permanent, even fatal).” Id. ¶ 20.89
165. Moreover, the Jail has discontinued mental health services.90 This places prisoners with mental illness who are isolated “at grave risk of decompensation.” Id. ¶ 24.91
166. These policies also threaten physical harm; “the extraordinary stress of social isolation under these especially onerous conditions” may “depress prisoners’ immune systems and render them even more vulnerable to the COVID-19 virus, and less able to combat it if and when they contract it.” Ex. 36, Haney Decl. ¶ 26; see also Ex. 30, Meyer Decl. ¶ 36 (“Failure to provide adequate mental health care . . . as appears to be the case at the Prince George’s County Jail, will result in poor health outcomes.).
89 Ex. 34, Haney Decl. ¶ 20 (“The fact that prisoners are double-celled during these lockdowns [in the general housing units] does not mitigate the negative effects of their essentially around-theclock in-cell confinement. In fact, double-celling may exacerbate these effects because of the interpersonal tensions and stressors that such unavoidably close around-the-clock contact generates.”). 90 Ex. 30, Meyer Decl. ¶ 36 (“People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention.”). 91 Even in less extreme forms of isolation than those imposed at the Jail, the CDC Guidance recommends efforts to mitigate the mental health consequences of any necessary medical isolation. See, e.g., Ex. 36, CDC Guidance at 12 (“[I]f group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.”); id. at 13 (“Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health.”); id. at 14–15 (recommending that, since “visitation is important to maintain mental health,” 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.”). The Jail has done none of this.
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G. The Jail Has Failed to Effectively Manage Positive Cases of COVID-19 167. In addition to the Jail’s failure to implement basic, CDC-recommended protocols
to prevent the spread of the virus, the Jail has also failed to provide adequate care to prisoners who
have tested positive for the virus.
168. Prisoners who are transferred to the Medical Unit to be tested for COVID-19 are
placed in medical isolation cells. The cells are filthy. The walls are covered in mucus, feces, and
blood.92
169. Prisoners are terrified of being placed there, and they downplay their COVID-19
symptoms to avoid it.93
170. Prisoners must remain in these cells until the results of their COVID-19 tests come
back. This can take up to five days. During this time, prisoners have no access to basic personal
92 Ex. 11, Decl. 11 ¶ 18 (“The isolation cells have mucus, feces, blood, old food, urine, spit, everything you can name on the walls. . . . Someone should come and take pictures of these cells, they’re disgusting.”); Ex. 10, Decl. 10 ¶ 11 (“The isolation cell they put me in has mucus and blood dried all around the walls, 360 degrees. I wish you could come and take pictures of it. When I say mucus and blood on the walls, I mean it – thick yellow, some green, some yellow with red blood in it. I can also tell someone was bleeding in that isolation cell, because there is blood all along the floor under the bed.”); Ex. 12, Decl. 12 ¶ 7 (“I was put in isolation cell number [redacted], which was not clean. It has feces and blood on the walls. The sink was stopped up too, so I couldn’t really use the water.”).
93 Ex. 12, Decl. 12 ¶ 14 (“I think a lot of guys are having symptoms, but are fearful of being stuck in the medical unit on total lock-down. They’re more afraid of how they’ll be treated in the medical unit than they are of their symptoms, so they downplay things so they can go back to the housing unit where they have access to showers and phones and stuff like that.”); Ex. 10, Decl. 10 ¶ 25 “Some people are trying to hide their symptoms, because they don’t want to be punished in the medical unit. … So a lot of people are just trying to tough it out, but it’s spreading it. My cellmate was sneezing and coughing when I left him. I’ve seen people in the kitchen unit sneezing as they prepare food.”); Ex. 9, Decl. 9 ¶ 21 (“Some guys on the unit seem to have the virus, but they are scared to get tested, because they don’t want to get stuck in the medical unit like I am. They’d rather just let their bodies fight it off.”); Ex. 17, Decl. 17 ¶ 8 (“A lot of people in the unit who are coughing and sneezing have said they are trying to suppress it because they don’t want to go to the medical unit because of the way people there are being treated.”).
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hygiene products: they have no soap and no toothbrush. They are not allowed to shower. They cannot change their clothes, even as they are soaked in sweat.94
171. They have no access to phones, no reading material, and no mental health services. 172. A nurse visits each prisoner three times per day to take his temperature and deliver medication and food trays. But the prisoners there cannot contact them (or anyone else) on their own, even in a medical emergency. Ex. 12, Decl. 12 ¶ 9 (“In the isolation cell, there was no way for us to notify someone if we were having an emergency, except to get up and bang on the door and hope that someone could hear you.”). 173. Medically vulnerable prisoners suspected of having COVID-19 are held in the same isolation cells in the same abject conditions. There does not appear to be any plan for their care in light of the particular dangers they face if infected. 174. A prisoner who tests positive for COVID-19 is transferred from the isolation cell to a 10-man cell for COVID-positive prisoners in the medical unit. Starting on April 11, 2020, the Jail also began using isolation units in Housing Unit 6 (H-6). There is no special location, plan, or care for medically vulnerable prisoners who have COVID-19.
94 Ex. 11, Decl. 11 ¶ 12 (“I was still wearing those same clothes I was sweating in, for five days. They didn’t give me clean clothes until April 6, and they haven’t allowed any of us to take a shower.”); Ex. 12, Decl. 12 ¶ 8 (“I was in the isolation cell for five days before I was even given a wash cloth or a toothbrush.”).
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175. The 10-man cell is dirty. For fear of contracting COVID-19, jail guards will not remove the trash bags, which are filled with vomit and spit.95 The floor is covered with tissues, hair balls, spiders, and bugs.96
176. Jail staff will not enter the room to fill the water cooler. The prisoners are told that if they are thirsty, they can drink from the sink.97 When jail guards do bring something to the prisoners in the cell, they throw it through the door.98
177. Prisoners in the 10-person cell also lack basic hygiene products. Many do not have
soap or have to share a single bar with others. Some have not had toothbrushes or toothpaste for
over a week. They are still not allowed to shower. All of the sick men share a single, mildewed
95 Ex. 10, Decl. 10 ¶ 23 (“There’s also a pile of trash building up inside of our unit, which they won’t take away. There are fumes from guys getting sick in those trash bags, there’s spit on top of it and in it, and the trash is just closed in here with us.”); Ex. 9, Decl. 9 ¶ 19 (“[O]ur trash is piled up in bags that they won’t take away since we’ve been over here. The COs refuse to get close to us and they say that anything that goes in, can’t come back out.”) 96 Ex. 11, Decl. 11 ¶ 19 (“There’s spiders and other bugs. It’s nasty. There’s piles of dust under the beds. It hasn’t been cleaned since god knows when.”); Ex. 9, Decl. 9 ¶ 19 (“There’s lint balls and tissues and paper towels on the floor. There are spiders and centipedes, one guy just killed another spider while I’m talking to you on the phone.”); Ex. 10, Decl. 10 ¶ 17 (“[T]here’s dust and hair balls all around the floor in our cell.”). 97 Ex. 11, Decl. 11 ¶ 20 (“It’s supposed to be a water cooler for us, but it’s empty. They’re scared to come and refill it, they’re scared to even come and get the trash.”); Ex. 9, Decl. 9 ¶20 (“There’s an orange water cooler in here with us, but it’s empty because the COs refuse to fill it with ice and clean water.”). 98 Ex. 10, Decl. 10 ¶ 14 “When we really need something, the staff will open the door, and throw stuff at us through the door. It makes me feel like an animal.”; Ex. 11, Decl. 11 ¶ 21 (“There’s a pile of trash right now in the ten-man cell right next to the empty water cooler. It’s supposed to be a water cooler for us, but it’s empty. They’re scared to come and refill it, they’re scared to even come and get the trash. They treat us like animals, like they’re afraid to come near us. And anything they do give us, they throw to us like we’re animals, like we’re nothing.”).
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sink. Prisoners may go five or six days without being able to change their clothes or underwear. 99
There are no mental health services.
178. COVID-positive prisoners who are housed on H-6 are held alone in cells. Ex. 11,
Decl. 11 ¶ 35. They have no access to phones and nothing to read. They too have no mental health
services.
179. There is no jail guard on H-6 with the prisoners. Ex. 9, Decl. 9 ¶ 6. The only time
the prisoners there see anyone is when a guard comes to deliver their food. A nurse comes at the
same time.
180. The cells in H6 have call buttons that prisoners can use to talk to the corrections
officer in the unit’s command center bubble. Ex. 9, Decl. 9 ¶ 31.
181. Sometimes, either the call button does not work or no one answers it. One prisoner
in H-6 heard another kicking his door because the guards would not answer his call button. No
99 Ex. 11, Decl. 11 ¶ 20 (“They gave me one bar of soap, but not everyone in here with me even has a bar of soap. Some guys don’t have toothbrushes or toothpaste either, some say they haven’t had a toothbrush or toothpaste in a week.”); id. (“We ask for showers, but they say we can’t take a shower. They tell us to wash in the sink, but there’s just one sink that all nine of us have to use.”); id. (“We’ve got the same clothes on for five or six days, the same underwear for five or six days. I’m still wearing the same drawers since Thursday, and they look nasty. They’re turning black.”); Ex. 10, Decl. 10 ¶ 15 (“They won’t let us shower, either. We have only one working sink, and I’m sharing it with everyone in here. There are currently ten men in this cell, the maximum. We’ve all got to take turns washing up in that one sink. Although they gave me a bar of soap on April 6, I didn’t get a toothbrush or toothpaste until April 9. I requested it and requested it, but I didn’t get it. I didn’t have any toothbrush or toothpaste between April 3 and April 9.”); Ex. 9, Decl. 9 ¶ 17 (“They tell us to be clean with soap and hygiene, but they don’t give us any hygiene products. It took four or five days before they gave me a hygiene kit in the medical unit. Before then, I had no soap, toothbrush, toothpaste, or deodorant to keep myself clean. I asked them many times, but the COs would play with us and tell us we didn’t need a hygiene kit. Finally the nurse went to the Sergeant and told him what was going on, and the Sergeant got us our hygiene kits.”); id. ¶ 18 (“I also have not been allowed to use the shower since being moved to the medical unit. I have not had a shower in nearly two weeks, not since Thursday, March 26. Instead, I have been forced to wash myself as best I can in a dirty, mildewed sink. In the isolation cell, I had a bar of soap for myself, but now in the ten-man cell I have to share the sink and bar of soap with the other men in here.”); Ex. 12, Decl. 12 ¶ 12 “I haven’t had a shower since Thursday, March 26.”).
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jail staff checked on the other prisoner. He does not know what happened to the man who was kicking his door. Id.
182. The same prisoner worries that even if the button works, in a medical emergency he might not be able to press it. He explained, “I have a seizure disease. If I were to have a seizure, I wouldn’t be able to push the button. No COs are in the housing unit, so no one would hear what was going on. I’m afraid that if I have a seizure in here, no one will hear it and I will die. . . . They’re not really doing anything to protect any of us in here.” Ex. 9, Decl. 9 ¶¶ 31–32.
H. The Jail Maintains an Overdetention Policy for Prisoners with COVID-19 183. Although the Jail has failed to control the outbreak within its walls by not following clear public health guidance, it has resorted to unlawful means to control the virus’s spread outside of them: the Jail refuses to release COVID-positive prisoners who have paid bail (or are otherwise legally entitled to release) until it deems them non-contagious. 184. Accordingly, one prisoner who paid his bond on April 3, 2020—but tested positive for COVID-19 on the same day—was illegally imprisoned in the cohorted isolation cell in the Jail for fourteen days. Ex. 29, Glenn Decl. ¶ 24. 185. He was not released until April 16, 2020. Id. 186. Had he been released when he paid his bond on April 3rd, he would have sought treatment for COVID-19 at a local hospital. Id. 187. All of the exhibits cited in and attached to this Complaint are incorporated by reference.
CLASS ACTION ALLEGATIONS 188. Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, the individual named Plaintiffs seek to certify two classes with one subclass as follows:
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• The Pretrial Class is defined as “all people detained in the Prince George’s County Jail who are not detained pursuant to a judgment of conviction.”
• The Post-Conviction Class is defined as “all people detained in the Prince George’s County Jail who are detained pursuant to a judgment of conviction.”
• The Medically Vulnerable Subclass is defined as “all Pretrial Class members whose medical condition renders them especially vulnerable to the coronavirus as determined by guidelines promulgated by the Centers for Disease Control and Prevention.”100 189. The class allegations and law are set forth in more detail in the accompanying
motion for class certification. 190. A class action is the only practicable means by which the individual named
Plaintiffs and the class members can challenge Defendant’s unconstitutional actions. Many members of the class are without the means to retain an attorney to represent them in a civil rights lawsuit.
191. The classes and subclass are so numerous that joinder of all members is impractical. The number of people in custody exceeds 500. Demographic data regarding the health of correctional populations, which is set forth above, indicates that the Medically Vulnerable Subclass consists of at least 50 of people (and likely many more).101
100 See U.S. Centers for Disease Control and Prevention, People Who Are At Higher Risk (last reviewed Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html. 101 A sizeable percentage of the jail population is likely medically vulnerable to COVID-19. According to one study, “asthma prevalence is 30%–60% higher among individuals with a history of incarceration as compared with the general population.” Elizabeth M. Vigilanto et al., Mass Incarceration and Pulmonary Health: Guidance for Clinicians, 15 Ann. Am. Thoracic Soc. 409, 409 (2019). Another study estimates that up to 15% of people who are in custody have asthma, 10% of people in custody live with a heart condition that requires medical care, 10% live with
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192. There are questions of law and fact common to all class members and the subclass, including, among many others:
a. Do the Jail’s conditions create a substantial risk that the people in its custody will be infected with COVID-19?
b. Do the Jail’s conditions create a substantial risk that the people in its custody who are infected with COVID-19 will face serious illness, long-term physical damage, or death?
c. If Defendant McDonough acting with deliberate indifference to these risks? d. Is the risk of harm posed by the Jail’s conditions so severe and so immediate
that the only adequate remedy is release? 193. The claims of the class representatives are typical of the claims of the classes and of the subclass. That typicality stems from their claim that Defendant McDonough has placed them at significant risk of serious harm by failing to take appropriate steps to address the risk of COVID-19 in the Jail. Every person at the Jail faces a heightened risk of risk of contracting COVID-19 and facing serious illness, physical injury, or death if Defendant does not adequately protected them. 194. The claims of the Medically Vulnerable Subclass representatives are typical of the subclass members as well, as each member is subject to increased risk of substantial harm or death due to their existing medical conditions. 195. The individual named Plaintiffs will fairly and adequately represent the interests of the classes and subclass. The named Plaintiffs have no conflicts with the unnamed members of the
diabetes, and 30% have hypertension. See Laura M. Marushack et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, U.S. Dept. of Justice (2014).
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proposed classes. In addition, their lawyers are experienced in federal court civil rights class actions, particularly those involving prisons and jails.
196. Defendant McDonough has failed to act in a manner that applies generally to the classes and subclass as a whole, rendering class-wide injunctive and declaratory relief appropriate.
COUNT I 42 U.S.C. § 1983 (on behalf of all Class members) Eighth and Fourteenth Amendments: Jail Conditions 197. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 198. Plaintiffs and the classes they represent have been deprived and continue to be deprived by the Defendant of their rights under the Eighth and Fourteenth Amendments to reasonably safe living conditions. Defendant McDonough is aware of the substantial risk of harm that COVID-19 poses to all individuals, and she is further aware of the particular risks of severe illness and possible death that Plaintiffs face as a result of the conditions in the Prince George’s County Jail. Despite this knowledge, Defendant has failed to take reasonable measures to mitigate these dangers. 199. As a result of Defendant’s actions and inactions, class members face a substantial risk of contracting COVID-19 and sustaining a serious illness that could lead to death. 200. Defendant’s failure to take appropriate steps to curb the substantial threat posed by COVID-19 to each person in his custody, as described more fully above, violates Plaintiff’s rights to unreasonable risk of death and bodily harm. 201. Consequently, Defendant is in continuous violation of these Plaintiffs’ rights and the rights of the members of the subclasses under the Eighth and Fourteenth Amendments to the United States Constitution.
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202. Plaintiffs seek injunctive and declaratory relief against Defendant McDonough to prevent the continued violation of the rights of Plaintiffs and the classes they represent.
COUNT II 42 U.S.C. § 1983 (on behalf of all Class members)
Fourteenth Amendment: Overdetention 203. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 204. Defendant’s policy of detaining COVID-positive people in the Jail who are legally entitled to release violates the Fourteenth Amendment. 205. As a result of Defendant’s actions and inactions, class members face a substantial risk of harm in the form of unlawful detention. 206. All members of both classes are actively seeking to be legally entitled to release, whether by paying bail, acquittal, early release, or some other means. All are at imminent risk of contracting COVID-19. If these class members become legally entitled to release and test positive for COVID-19, the Jail may detain them beyond the date at which they are entitled to release. 207. Plaintiffs seek injunctive and declaratory relief against Defendant McDonough to prevent the violation of the rights of Plaintiffs and the classes they represent.
COUNT III Petition for Writs of Habeas Corpus Pursuant to 28 U.S.C. § 2241
(on behalf of Medically Vulnerable Subclass) 208. Medically Vulnerable Petitioners repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 209. Medically Vulnerable Petitioners are not in custody pursuant to a judgment of conviction of a state court. They are all pretrial detainees, presumed innocent.
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210. Respondent McDonough is holding Medically Vulnerable Petitioners in custody in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.
211. Due Process forbids exposing Petitioners to a severe risk of death, pain, or permanent severe injury, and there are presently no options available to mitigate that risk quickly enough to protect them other than immediate release from custody.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs on behalf of themselves and the classes they seek to represent, request that this Court enter judgment in their favor and against Defendant McDonough and order the following relief: a. Issue a temporary restraining order, preliminary injunction, and final judgment for all
Class members requiring Defendant McDonough to implement constitutionally sufficient procedures to protect their health and safety that are consistent with CDC guidelines and the expert judgment of correctional health specialists, including but not limited to:
i. Effectively communicate to all prisoners, including low-literacy and nonEnglish-speaking people, sufficient information about COVID-19, measures to reduce the risk of transmission, and any other information necessary to reasonably ensure that these individuals are aware of what precautions they can take to prevent infection;
ii. Ensure that each prisoner receives, free of charge: (1) an individual supply of liquid hand soap and paper towels sufficient to allow frequent hand washing and drying each day; (2) tissues, and (3) adequate access to a
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supply of cleaning and disinfectant products effective against COVID-19 to allow for cleanings of frequently-touched surfaces several times per day; iii. Clean and disinfect frequently-touched surfaces in common areas several times per day, including phones; iv. Waive all fees for sick call for the duration of this pandemic; v. Provide adequate medical care to prisoners, whether because of COVID-19 symptoms, chronic health conditions, or any other medical issue; vi. Create and enact social distancing policies that allow for adequate spacing of six feet or more between prisoners; vii. Ensure that prisoners have adequate access to phones to contact counsel and/or family members such that prisoners need not congregate at the phones; viii. Provide appropriate Personal Protective Equipment (PPE) to prisoners and Jail staff according to the CDC’s recommendations, and receive appropriate instruction about how to don and doff it; ix. End preemptive lockdown procedure in general population and instead impose appropriate time-limited quarantines, with that time limit clearly communicated to prisoners, only when necessary due to a known or suspected case of COVID-19, as recommended by medical and public health professionals; x. Implement appropriate quarantining and medical isolation procedures as recommended by the CDC Guidance;
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xi. To the extent a prisoner must enter lockdown or isolation to effectuate an appropriate quarantine or medical isolation procedure, provide appropriate mental health services, and, if that prisoner has a mental health condition, provide enhanced psychological services in these circumstances;
xii. Provide appropriate mental health services to all prisoners; xiii. Ensure that isolation, cohorted isolation, and quarantine cells are reasonably
clean and sanitary, and that prisoners in them receive adequate medical monitoring, adequate hygiene products, reading material, reasonable access to phones, a daily change of clothes, and the opportunity to shower once daily; xiv. Immediately create and implement a plan that complies with CDC Guidance to minimize transmission to and provide adequate medical monitoring and care to prisoners who are medically vulnerable to COVID-19; xv. Immediately end the policy and practice of detaining COVID-positive people in the Jail who are legally entitled to release. b. To the extent it is necessary to ensure constitutionally sufficient procedures or to protect certain prisoners’ constitutional rights, order Defendant McDonough to transfer prisoners to home detention or another appropriate facility; c. Order immediate release pursuant to a writ or writs of habeas corpus for members of the Medically Vulnerable Subclass; d. If this Court does not immediately release the Medically Vulnerable Subclass, consider subclass members for release on non-monetary bond pending the outcome of their request for habeas relief;
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e. Issue an order and judgment granting reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988 and 28 U.S.C § 2241; and
f. Grant such other relief as this Court deems just and proper.

Dated: April 21, 2020

Respectfully submitted,
By s/Elizabeth Rossi Elizabeth Rossi Bar No. 19616 Katherine Chamblee-Ryan application to the Bar of this Court pending Olevia Boykin application forthcoming Ryan C. Downer application pending CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Suite 800 Washington, D.C. 20009 katie@civilrightscorps.org 610-931-7715
Attorneys for Plaintiffs

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Case 8:20-cv-01028-PX Document 2 Filed 04/21/20 Page 47 of 47 Certificate of Service
I, Elizabeth Rossi, an attorney, hereby certify that on April 21, 2020, I caused a copy of the foregoing to be filed using the Court’s CM/ECF system. I further certify that I, or another one of Plaintiffs’ attorneys, will promptly serve a copy of the same on General Counsel for the Prince George’s County Department of Corrections’ Office via email.
/s/Elizabeth Rossi
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

KEITH SETH, et al., Individually and on behalf of a class of similarly situated persons,
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections, et al.
Defendants-Respondents.

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Case No.

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APPENDIX OF EXHIBITS FOR CLASS ACTION COMPLAINT AND PETITION FOR WRITS OF HABEAS CORPUS

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Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 Exhibit 9 Exhibit 10 Exhibit 11 Exhibit 12 Exhibit 13 Exhibit 14 Exhibit 15 Exhibit 16 Exhibit 17 Exhibit 18 Exhibit 19 Exhibit 20 Exhibit 21 Exhibit 22 Exhibit 23 Exhibit 24 Exhibit 25 Exhibit 26 Exhibit 27 Exhibit 28 Exhibit 29 Exhibit 30 Exhibit 31 Exhibit 32 Exhibit 33 Exhibit 34 Exhibit 35 Exhibit 36

Exhibit Index
Seth Declaration Smith Declaration Bunch Declaration John Doe No. 1 Declaration John Doe No. 2 Declaration John Doe No. 3 Declaration John Doe No. 4 Declaration John Doe No. 5 Declaration
Declaration #9 Declaration #10 Declaration #11 Declaration #12 Declaration #13 Declaration #14 Declaration #15 Declaration #16 Declaration #17 Declaration #18 Declaration #19 Declaration #20 Declaration #21 Declaration #22 Declaration #23 Declaration #24 Declaration #25 Declaration #26 Declaration #27 Schellner Declaration Glenn Declaration Meyer Declaration Meyer Curriculum Vitae Benninger Declaration Benninger Curriculum Vitae Haney Declaration Haney Curriculum Vitae CDC Guidelines for Correctional Settings

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EXHIBIT 1

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Consent given
Declaration of Keith Seth I, Keith Seth, solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true: 1. I provided the information below in response to a standard set of questions read to me
over the telephone by Ariel Schneller on April 8, 2020 and then in response to follow-up questions on April 17, 2020. At the conclusion of the first conversation, my declaration was read to me and I confirmed its accuracy based on my own knowledge and observations. At the conclusion of the follow-up conversation, I provided more information that was read back to me and I swore under the penalty of perjury as to the accuracy of that information. 2. My name is Keith Seth. I am a resident of Prince George’s County 3. I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County in Housing Unit H-17. I have been detained at the facility since late January, 2020. During this time, I have observed the following conditions and can make the following representations. 4. I have a cellmate. My cell is approximately eight feet by eight feet. My bunk is directly below my cellmate’s bunk and when we are both on our beds we are about four feet from each other. 5. I have not seen any staff or detainees clean any parts of the unit. The only cleaning I have seen is inmates sweeping the floors. 6. I have been to the medical unit in the past. It has ten beds in a common area and some isolation cells (about 8 of them).

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Consent given
7. Inmates have not been provided any personal protective equipment besides one mask we received April 6. We have not been provided any sanitation equipment such as hand sanitizers, disinfectants, or liquid soap. The one exception is that detainees with access to funds can buy soap from the Commissary. The soap is delivered once a week. A bar lasts about two or three days.
8. I have chronic bronchitis. I’ve probably had it since I was about 6 years old. When my bronchitis is triggered, it comes down on me hard. Last year I was in the hospital for a week straight because I couldn’t breathe.
9. Starting April 6, we have been ordered not to leave our cell except for one hour a day. For the two weeks prior to that I had already been experiencing shortness of breath and coughing. Since the jail started 23-hour-a-day lockdown, there has been bad ventilation that makes it harder to breathe. I am not getting good air circulation in the cell and my coughing continues. I am coughing up mucus, my chest hurts, and I woke up this morning with a bloody nose.
10. Around April 4, I asked to get into the medical unit but they make you pay $4 for the form and I don’t have money for that. I am losing my sense of taste, I have hot chips that I eat and do not taste the hotness. It feels like my taste buds are numb. For a week I had diarrhea.
11. Around April 6, I decided I should probably go to the medical unit. But I decided not to ask because I do not have the money for the form and I spoke to somebody in my unit who had just returned from the medical unit, where he was sent for coughing and a fever. After three days he came back and told me that it was overcrowded and that he did not receive any care, he was just kept alone in a room by himself and received no medicine.

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Consent given
He said the smell was very bad. Another guy I know lost his sense of taste and his stomach hurt, but medical sent him back. I know one guy who had a fever and they kept him for three days and sent him back. If you don’t have a fever, they are not doing anything. 12. On April 8, the person in the cell next to me had to go to the medical unit because he was sneezing, shaking, and sweating. I was just talking to him the day prior, and when I was talking with him I was within a foot of him. I did not know that I was being unsafe in talking to him so closely because I have not been told by anybody to stay away from other inmates. The only information I received is to stay six feet away from the officer’s desk. I have no received no information about how to protect myself from the Coronavirus. 13. I have been diagnosed as bipolar. I had just started taking my medicine again. I'm supposed to be talking to a psychiatrist but I haven’t seen her since we’ve been locked down. Being stuck in a cell for all but one hour a day makes me want to go crazy. I feel like I do not have enough time; during that one hour of rec I have to shower, clean my cell, and call my family. 14. I feel like I am going to go crazy. I’m thinking about suicide. This is my first time being locked up. I'm thinking a lot of bad things. I just want to get home to get the medical help I need. This declaration was orally sworn by telephone to Ariel Schneller, by Declarant 7 on April 8, 2020 and April 17, 2020 because in-person meetings are not currently possible due to the COVID-19 epidemic. Under penalties of perjury, I declare that I have confirmed the foregoing in its entirety to Declarant 7 on April 17, 2020 and that he has sworn to the truth of its contents.
__/S/ Ariel Schneller Ariel Schneller Assistant Public Defender

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Consent given
April 17, 2020

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EXHIBIT 2

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Declaration of David Smith I, David Smith, solemnly affirm under the penalty of perjury that the contents of the following paper are true: 1) I provided the information below in response to a set of questions read to me over the telephone by Lia Rettammel on April 11, 2020. All responses are based on my own knowledge and observations. 2) My name is David Smith. I am a resident of Prince George’s County. I am 26 years old. 3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-9. I have been detained at the facility since March 2020. During this time, I have observed the following conditions and can make the following representations. 4) I have bronchitis, which makes me high risk for COVID-19. I have been fortunate to not have personally experienced any symptoms of COVID-19 up to this point. 5) I got dizzy before. I had a heat flashes but they didn’t check me that night, so I wouldn’t know if my temperature was high. Yes I have [requested medical care], but I didn’t receive any medical care. They told me that they had checked my temperature 5 hours ago and I was ok. The CO called to the nursing station and the nurses said that. 6) I have noticed other people in my unit getting sick, they just took another dude out of here about a day ago and he hasn’t been back. He had a fever and they said he was throwing up. 7) I have a cellmate. I think the unit holds 100 but I think there are 84 people in here now. There are 6 guards each day. We are sometimes told to stay more than 6 feet apart, but not always.

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8) We have rec time one hour per day. Sometimes they threaten to take it away. During rec time we have to do everything in one hour. We only get one hour to use the phone, to clean our cells, to call our families, to call our lawyers, to shower. All of our services are cut off, I can’t go to the gym, I can’t get a haircut.
9) The jail gave us little facemasks one time. But they don’t change them. I know they collect bacteria. That’s all they did—that and put us on lockdown.
10) Soap is provided through the commissary. I have access to soap, but I know of people who don’t. I don’t have access to liquid soap, or hand sanitizer. I don’t have access to gloves, I know they have them, I don’t think they would give them to me if I asked for them, they are only for the detail. I have access to paper towels and Spray 9, but only for the hour that I have to come out of my cell.
11) There are 12 phones in my unit, but we are only allowed to use 6. People are 3 feet apart when they are using them. The phone is not getting wiped down between people using it.
12) The jail has given us really nothing in terms of information about the coronavirus, just wash our hands sometimes.
13) I am afraid of getting coronavirus. It’s psyching me out a lot, I start to get panicky and think I have symptoms. A lot of us are [panicky].
14) I tried to file a grievance because the CO put the trays on the floor. I told the CO that it was unsanitary and against the health code. I asked to grieve it, the Sergeant was already on the unit. The zone commander, told me it wasn’t a grievable issues. I asked the Sergeant to come here, he told me I was being disruptive, and he said I was going to the hole. Then they changed it and said I was just getting a 72 hour ticket. I told him if he was going to give me a 72 hour

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ticket, I would grieve him for refusing me a grievance, and we ended up neutral I didn’t file it,
and he didn’t give me the ticket.
15) I read the inmate handbook and I think they are violating a lot of the handbook rules.
i. They can’t give me medical services because they have the medical unit locked down. I take medication and they haven’t consulted me to change the medication because I don’t like the side effects it gives me.
ii. Other people contacted sick call for other reasons, but we were told by the COs that if it’s not nothing relating to Corona not to write to medical.
iii. I can’t get mental health treatment because the mental health people won’t see me.
iv. The mission statement says they are supposed to protect us from disease, maintain a sanitary environment (they don’t clean the showers, wipe the hand rails or nothing); I can’t go to the law library.
i) The handbook also says they encourage for financial reasons, signature bonds, pretrial, it says we endorse it with proper screening. They said everybody is going in front of one judge and the judge is saying they don’t think the coronavirus is adequate reason for people to get released. They are saying no for no reason.
ii) If I try to ask for a grievance I know they are going to turn it against me.
Under penalty of perjury, I, Lia Rettammel, Esq., swear that the above substance of this declaration was orally shared by David Smith on April 11, 2020 over the telephone, since inperson meetings are not currently possible due to the COVID-19 epidemic.
/S/ Lia Rettammel, Esq. Assistant Public Defender April 11, 2020

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EXHIBIT 3

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Declaration of Mario Burch I, Mario Burch, solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true. 1) I provided the information below in response to a standard set of questions read to me over the telephone by Brandon Ruben on April 10, 2020. At the conclusion of the conversation, this declaration was read to me and I confirmed its accuracy based on my own knowledge and observations. 2) My name is Mario Burch. I am thirty-four years old. I am a resident of Prince George’s County. 3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-8. I have been detained at the facility since March 2020. During this time, I have observed the following conditions and can make the following representations. 4) I have a cellmate. My cell is approximately ten feet long by six feet wide. My bunk is directly below my cellmate’s bunk, and when we are both on our beds we are within three feet of each other. I spend twenty-three hours a day in my cell with my cellmate, including meals. When we go out for one hour of recreation it is sometimes difficult to stay six feet away from each other. 5) On April 8, 2020, after I had been here for over two weeks, the jail finally gave me a mask. It’s like a nurse’s mask; it feels thin. The jail directed us to put it on and to not come to the desk without it. The guards sometimes tell us to wear it when we come out of our cell. The other inmates use the masks only sometimes. Some have thrown them on the floor, like they didn’t even care about them. The jail told me that my mask won’t be replaced, even if it gets lost, torn,
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or dirtied. The guards and the staff have different masks; they have masks that are like a painter’s mask. I am quite sure the staffs’ masks work better.
6) The jail takes our temperatures twice per day. You put your head in the slot of the cell, like a dog, and they scan our foreheads. I feel like an animal. The jail sometimes uses gloves when they take our temperature, but they do not clean the scanner between uses. I think they write our temperatures down on a clipboard.
7) I currently have one bar of soap that I received from the jail when I came in. When you run out of soap, the jail might give you a small bar or might not give you anything. I know a couple of people who do not have any soap and are using only water to try and wash themselves. Beside the soap and some toothpaste, I have no other product to clean myself.
8) When I use the telephones I am very close to other people. I have not seen the jail wipe down or clean the telephones.
9) I have not seen anyone clean or sanitize any surfaces in my housing unit. 10) I went to the medical unit to receive a physical approximately two weeks ago. The medical unit had around ten beds and one or two nurses. When I was in the medical unit, I was unable to remain six feet apart from the other inmates. I was right beside them. None of the nurses had masks at that time. 11) If an inmate puts in a sick call they have to pay money in order to go to the infirmary. 12) I have never had my pulse oxygen level checked. 13) There are currently hungry inmates eating out of trash cans because we are being provided very little food or food that is cold and inedible.
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14) I have not yet filed a grievance at the jail. It’s hard to get a grievance form from the correctional officers because the officers are afraid that you are going to write them up. People have asked for grievance forms for COVID issues but they did not get them.
15) I am extremely scared of contracting the virus because it is getting crowded and a lot of people are coming in and out of the jail. I am worried about being in here because it is not a safe place to be. I believe the jail is handling the pandemic poorly because the guards do what they want to do when they want to do it and they do not help us consistently. You have to keep asking and pressing buttons in your cell to get answers from the correctional officers.
16) Overall, I feel that there is nothing being done for us and that we are in a terrible situation. I don’t feel the jail staff has been taking COVID seriously because they don’t tell the inmates anything, they don’t wipe surfaces down, and they don’t provide us anything aside from the mask. This declaration was orally sworn to by Mario Burch on April 10, 2020 because the Upper Marlboro Detention Facility is currently not permitting in-person visits. Under penalties of perjury, I declare that I have read the foregoing in its entirety to Mario Burch on April 10, 2020 and that he has sworn to the truth of its contents.
/S/ Brandon Ruben Brandon Ruben, Esq. Assistant Public Defender April 10, 2020
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EXHIBIT 4

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Declaration of John Doe #1 I, John Doe #1, solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true: 1) I provided the information below in response to a standard set of questions read to me over the telephone by Stanford Fraser on April 9, 2020. At the conclusion of the conversation, this declaration was read to me and I confirmed its accuracy based on my own knowledge and observations. 2) My name is John Doe #1. I am a resident of Prince George’s County. 3) I have acute asthma and allergies. I’ve recently experienced shortness of breath, some headaches, and light nausea. 4) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-10. I have been detained at the facility since March [redacted], 2020. During this time, I have observed the following conditions and can make the following representations: 5) In the last 10 days at least six individuals have been removed from my housing unit because they were experiencing symptoms of the coronavirus, including my bunkmate. 6) Detainees were provided masks yesterday, April 8, 2020. I was told by Correctional staff that inmates will only be provided with one mask. 7) Correctional officers do not always wear masks either. Some officers wear them and some officers do not. 8) Phone use (the only way to contact the outside world, including my attorney) occurs with no social distancing. In my unit the phones are approximately a foot to a foot and a half apart
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from each other. It is regularly the case that each phone is in use at the same time. The phones are occasionally washed between uses.
9) Medical staff are not changing their gloves in between taking detainees temperture. Yesterday, I requested a nurse to change their gloves before taking my temperture, the nurse declined my request.
10) Detainees have not been provided any sanitizing products. There is no hand sanitizer available for detainees. The only exception is that detainees with access to funds can buy soap from the Commissary for approximately $4 per body wash and $2 for bar soap. The soap is delivered once a week.
This declaration was orally sworn by telephone to Stanford Fraser, by John Doe #1 on April 9, 2020 because in-person meetings are not currently possible due to the COVID-19 epidemic. Under penalties of perjury, I declare that I have read the foregoing in its entirety to John Doe #1 on April 9, 2020 and that he has sworn to the truth of its contents. ___//s//_________________________________ Stanford Fraser Assistant Public Defender April 9, 2020
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EXHIBIT 5

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Declaration of John Doe #2 I, John Doe #2, solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true: 1) I provided the information below in response to a standard set of questions read to me over the telephone by Christina Meiring on April 7, 2020 & continuing on April 9, 2020. At the conclusion of the conversations, this declaration was read to me and I confirmed its accuracy based on my own knowledge and observations. 2) My name is John Doe #2. I am a resident of Prince George’s County. 3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County and I have been held since January [redacted], 2020. I am currently detained in Housing Unit H-17. During this time, I have observed the following conditions and can make the following representations. 4) On March 19th, a judge gave the jail’s Pre Trial Services unit (PTR) the option to release me on GPS monitoring (home detention). My family immediately contacted PTR to confirm my address. My attorney also sent PTR a copy of my charging documents on March 19th. My family and my attorney have been contacting PTR regularly, but they have not yet reviewed my case and haven’t made a decision. 5) Many people in my unit have been feeling sick. I have been stuffy and spitting up brown mucus. I am particularly concerned because I have a history of severe asthma. I was diagnosed with asthma about ten years ago. A couple of years ago I had to be hospitalized for two nights and put on a breathing machine. I went down to medical about a week ago and told them I have asthma and have been having trouble breathing. It took about two weeks from the time I told the staff I had a problem until I was taken to the medical unit.
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6) Detainees in my unit have only recently been provided masks. The detainees in my unit received them on approximately April 6th. The masks that were provided are the disposable paper kind, but we are not being given replacement masks, we have to continue to use the same mask without any way to sanitize the mask. We have been given no other personal protective equipment. When we are on cleaning detail, we do have access to gloves and paper towels. We are also given a spray cleaner, I do not know what is in it.
7) The staff have recently begun taking everyone’s temperature twice a day using a forehead thermometer. No one is able to go to medical unless they register a temperature of over 100 on the thermometers. However, we are concerned that the thermometers run low, and aren’t catching everyone who has a fever. Many people who have symptoms of a fever, are not reading over 100.
8) About a week ago, three or four detainees were taken from this unit to the medical unit and didn’t return. We believe that they have the virus. Another detainee left the unit approximately April 4th or 5th. He had been throwing up and had a high fever. On the morning of April 6th, another detainee registered a very high fever and was taken to the medical unit. I didn’t share a cell with him, but I’ve had contact with him, playing cards and stuff.
9) We have not been told much about the virus by the staff. The correctional officers did tell us to stay six feet away and cover our mouths. Recently our unit has been put into lockdown. We are in our cells all day except for one hour. That hour is staggered and only ten detainees are allowed out at a time.
10) Some of the correctional officers wear masks, some don’t. None of them wear gloves. 11) The staff do not appear to be cleaning more often than before, but they have told the detainees to clean more. Overall, the unit is no more or less clean that usual.
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12) It’s very hot in the cells. For the 23 hours we are in our cells a day, the cell door is kept closed. There is no noticeable air circulation, and the rest of the unit is very hot as well. The staff keeps the door to the recreation yard propped open.
13) I do have soap that I purchased from commissary. I don’t have access to hand sanitizer. 14) There have been no new detainees added to the unit in the last few days. This is unusual. We believe that they aren’t adding anyone else to the unit because there have been a number of positive cases in H-10. 15) I have been told that detainees are no longer working in the kitchen to prepare food, all of the food is being prepared by correctional officers. I believe it is because one or more detainees who had been preparing food has tested positive.
This declaration was orally sworn by telephone to Christina C. Meiring, Esq., by John Doe #2 on April 9, 2020 because in-person meetings are not currently possible due to the COVID-19 epidemic. Under penalties of perjury, I declare that I have read the foregoing in its entirety to John Doe #2 on April 9, 2020 and that he has sworn to the truth of its contents. /s ____________________________________ Christina C. Meiring, Esq. Assistant Public Defender April 9, 2020
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On April 17, 2020, John Doe #2 provided the following information as an addendum to his original declaration:
I, John Doe #2, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
16) My name is John Doe #2. I am a resident of Prince George’s County, Maryland. 17) I am currently incarcerated at the Prince George’s County Jail in Upper Marlboro,
Maryland. 18) I initially gave a declaration about the conditions at the jail on April 9. This is an
addition to that declaration. 19) I have not been feeling very well recently. My nose has been stuffy and I can’t breathe
well. I felt feverish on Monday, but they took my temperature and said it was only 98 degrees. I don’t think the temperature scanner is accurate though. I think it reads too low. 20) Because the temperature scanner showed my temperature was normal, the nurse told me, “you’re alright,” and wouldn’t let me go to medical or get a COVID-19 test. I told them that I need medical attention, and they said there aren’t enough beds in medical, it’s full over there. 21) I’m having trouble breathing, but they won’t even give me an inhaler. I’m having shortness of breath. I’ve asked for an inhaler, but the nurse told me she won’t give me an inhaler unless I’m having an asthma attack. Even though I have severe asthma, the jail has not appeared to do anything to specially monitor me.
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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 24 of 283 22) We’re still on lockdown for 23 hours per day. Which means I’m on lockdown with my
cellmate. He is having symptoms too. He lost his senses of smell and taste, but they still won’t even test us. They just make us stay in our small cells together all day. 23) The Court has authorized my release to Pretrial Services. But I haven’t been released yet. My attorney and my family say that they have been calling and calling Pretrial Services, and they’ve been getting the run-around. It seems like they’re not actually reviewing my case. Because the Prince George’s County Detention Center in Upper Marlboro, Maryland, currently is not permitting in-person visits, this declaration was orally sworn to by John Doe #2 on April 17, 2020. Under penalties of perjury, I declare that I read the foregoing in its entirety to John Doe #2 on April 17, 2020, and he confirmed its accuracy to me.
____cg______________________________ Claire Glenn, Esq. April 17, 2020
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EXHIBIT 6

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Declaration of John Doe #3 I, John Doe #3, solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true: 1) I provided the information below in response to a standard set of questions read to me over the telephone by Cristina Najarro on April 9, 2020. At the conclusion of the conversation, this declaration was read to me and I confirmed its accuracy based on my own knowledge and observations. 2) My name is John Doe #3. I am a resident of Prince George’s County. 3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-11B, and I have also been housed in the Medical Unit. I have been detained at the facility since March [redcated], 2020. During this time, I have observed the following conditions and can make the following representations. 4) When I first entered the Detention Center, I was placed in the Medical Unit. I have numerous medical issues, including neck and back issues, I walk with a cane, and I am currently having kidney issues, including blood in my urine. I was moved from the Medical Unit about halfway through my thirty-day incarceration, and I do not know why, but it may be because it was getting more crowded in the Medical Unit. 5) Since being moved from the Medical Unit, I have put in requests for additional medical care, but I have not gone back to the Medical Unit. I have only been receiving medication for my ongoing issues. 6) I am currently experiencing cold symptoms, such as coughing and sneezing. I try to stay in my cell as much as possible to avoid getting others sick. However, I do have a cellmate that I cannot stay away from.
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7) Since returning from the Medical Unit, I have not had my temperature checked at all. 8) I was given one mask at the jail, and one bar of soap when I arrived. I do not have access to hand sanitizer or wipes. The correctional officers have gloves, but they also do not have access to sanitizer. I do not see the unit being cleaned more frequently because of Coronavirus. 9) I have been receiving information about the Coronavirus from one correctional officer at the Detention Center. He has given us some information about how to protect ourselves. 10) There are six phones on my unit. Usually, three to four phones are being used at a time, and people are standing very close to each other. The phones are not cleaned or wiped down after use. 11) Everyone is concerned about the Coronavirus. I am very worried and I am already sick now. I am just trying to stay away from people and isolate myself.
This declaration was orally sworn by telephone to Cristina Najarro, Esq., by John Doe #3 on April 9, 2020 because in-person meetings are not currently possible due to the COVID-19 epidemic. Under penalties of perjury, I declare that I have read the foregoing in its entirety to John Doe #3 on April 9, 2020 and that he has sworn to the truth of its contents. __/s/__________________________________ Cristina Najarro, Esq. Assistant Public Defender April 9, 2020
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EXHIBIT 7

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Consent given
Declaration of John Doe #4 I, John Doe #4, solemnly affirm under the penalty of perjury that the contents of the following paper are true: 1) I provided the information below in response to a set of questions read to me over the telephone by Lia Rettammel on April 10, 2020. All responses are based on my own knowledge and observations. 2) My name is John Doe #4. I am a resident of Baltimore County. 3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-9. I have been detained at the facility since December [redacted], 2019. During this time, I have observed the following conditions and can make the following representations. 4) I have been fortunate to not have personally experienced any symptoms of COVID-19 up to this point. However, I have seen 3 inmates leave on this unit so far, and not come back. I do not know where they went. One was across the hall 3 or 4 days ago, he went to medical, his stuff is still in his cell. The guy across the way—his cell was within 5 feet of our cell. 5) After the guy across the hall went to medical. We went on a 23 hour lock down, they gave us Spray 9 and paper towels. They did not direct us on how to use it. 6) My cell mate went to medical at 8 o’clock last night and he hasn’t come back. He was not feeling well he had a headache and stomach ache. When my cellie left last night, the staff did not do anything to disinfect my cell. I am waiting to get rec-time because that is the only time I can get cleaning supplies. My rec time changes, I was getting it at 1:30 in the morning, yesterday I got it at 11 AM, my cellie didn’t come out he didn’t leave the cell all day. He had 2

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Consent given
trays of food in the cell when he left last night at 8 PM. I still have both trays in my cell because I can’t throw it away until I have rec time.
7) The unit is on lock down so you can’t interact. You can go outside but you can’t play basketball, you can’t play cards, they only let out 10 people at a time. They are taking our temperature twice a day.
8) We received masks several days ago, which we are told by the CO’s to wear when we come out. We have not been reissued new masks since the initial masks. We were not trained in how to place the masks on our faces. We have never been given gloves.
9) They are staggering the number of inmates that are out. I can’t tell if they are disinfecting the unit between times that inmates are let out of their cells.
10) I purchased my soap from the commissary, the bar lasts about every other week. We sometimes have hot water in the cell—it goes in and out. We have been told to wash our hands often.
11) They are telling us not to go into other people’s doorways or put your face into the slots, they are telling us not to get too close to one another.
12) When we are out on rec time, inmates are practicing social distancing. When you’re not on the phone it’s easy to distance yourself, but because you’re only allowed out for one hour, everyone is trying to make phone calls. They put tape on every other phone—but people ripped it off. When people are staggering phones, they are about 2 feet apart. It’s up to you to wipe down phones between people—you can use Spray 9 and paper towels.
13) There are 2 correctional staff on each shift, last night there were 3 but they were training on the overnight shift. The staff wear a mask, and wear gloves, they do arm band checks every shift. I am not aware of whether the staff is getting their temperature checked. They are different

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Consent given
CO’s every shift and every day. As of this moment I am looking over at the desk and neither CO has a mask on. They are doing the temperatures now.
14) We are definitely scared. It’s really bad being locked up. But it’s really bad when you can’t get come out of a cell for 23 hours I’m really scared now because my cellie has been sick. You can’t really talk to your family at 1 o’clock in the morning, my kids are asleep. I am washing my hands frequently, wiping the phones down before I use it, and keeping my distance right now. Under penalty of perjury, I, Lia Rettammel, Esq., swear that the above substance of this declaration was orally shared by John Doe #4 on April 10, 2020 over the telephone, since inperson meetings are not currently possible due to the COVID-19 epidemic.
/s/ Lia Rettammel, Esq. Assistant Public Defender April 10, 2020

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EXHIBIT 8

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Declaration of John Doe #5 I, John Doe #5, solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true: 1) I provided the information below in response to a standard set of questions read to me over the telephone by Robin Salter on April 9, 2020. At the conclusion of the conversation, this declaration was read to me and I confirmed its accuracy based on my own knowledge and observations. 2) My name is John Doe #5. I am a resident of Prince George’s County. 3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-8. I have been detained at the facility since March [redacted], 2020. During this time, I have observed the following conditions and can make the following representations: 4) I have been diagnosed with asthma, bronchitis, and seasonal allergies. I am approximately 6 feet 3 inches tall and weigh 285 pounds, which I believe makes my BMI greater than 40. 5) Due to Covid-19, the jail has turned off the air conditioning in the units to prevent the spread of COVID-19 through recycled air. Without circulation in my cell, I have difficulty breathing which causes me wheeze. I must sleep on my side to be able breath appropriately. 6) Detainees in the unit were not provided masks or other personal protective equipment such as gloves until Monday, April 6, 2020. I have heard many people coughing on the unit and, in the last two weeks, have observed more people going to the medical unit than was typical prior to that. Usually four to six people go to Medical Unit per day – and not always the same
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people. When people return from the Medical Unit, their masks may be on or off. There is no consistency.
7) Prior to Tuesday, April 7th, 2020, there was no meaningful social distancing occurring in my unit. As of late, the staff has started to stress the issue of social distancing.
8) I am locked in my cell 23 hours a day with one hour of recreation time. 9) Other inmates deliver food trays directly to the cell without gloves or other appropriate personal protection equipment. 10) While recreational time has now been divided, there can only be approximately 10 people out for recreation at any given time. During this time, people play games around a table with each other and are frequently within six feet of each other. Other than the division of recreational time, no efforts has been made towards encouraging or ordering social distancing. 11) While speaking to my attorney on April 9th, another inmate located two phones away started coughing. I stopped my conversation and told him to put on his mask. 12) Correctional officers do not always wear masks either. At the time of this call on April 9th, Officer Zander is not wearing a mask at all. Correctional officers put their masks on when they leave the command desk to go into the hallway but other than that they do not wear masks during their shift. 13) Earlier this week, a Correctional Officer, whom I believe name is Gamble, told inmates in the unit that there are approximately 77 cases of coronavirus in the jail. 14) Phone use (the only way to contact the outside world, including my attorney) occurs with no social distancing. In my unit the phones are approximately a foot to a foot and a half apart from each other. It is regularly the case that each phone is in use at the same time. People
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waiting in line for the phone are not told to social distance and do not stay more than six feet apart from each other. The phones are not cleaned between uses.
15) The only time surfaces and areas are cleaned down is when sanitation comes and inmates are locked down. During the day, as people circulate within the housing unit, no steps are taken to wipe down shared surfaces.
16) Detainees have not been provided any personal protective equipment (such as masks or gloves) or any sanitizing products (such as soap or hand sanitizer) on a regular basis. On Monday, April 6, 2020, I was given a one-time disposable mask for continuous use. The masks was not replaced until Tuesday, April 14th.
17) Inmates with access to funds can buy soap from the Commissary for approximately $4 per bar. However, we are only allowed to purchase one bar per week. Since I shower daily, the soap is used quickly and barely last to the end of the week.
18) I fear that I will contract COVID-19 at the jail. This declaration was orally sworn by telephone to Robin Salter, Esq., by John Doe #5 on April 9, and April 15, 2020 because in-person meetings are not currently possible due to the COVID-19 epidemic. Under penalties of perjury, I declare that I have read the foregoing in its entirety to John Doe #5 on April 15, 2020 and that he has sworn to the truth of its contents.
____________________________________ Robin Salter, Esq. Assistant Public Defender April 15, 2020
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EXHIBIT 9

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Declaration of [Declarant #9] I, [Declarant #9], certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746. 1. My name is [Declarant #9]. I am a resident of Prince George’s County. 2. I am currently incarcerated at the Prince George’s County Jail in Upper Marlboro, Maryland. I have been detained here since January [redacted], 2020. I contracted the COVID-19 Coronavirus while detained at the jail and have since tested positive for the virus. 3. I have pre-existing conditions of asthma, a prior history of bronchitis, and a seizure disease. Since contracting the virus, I have experienced symptoms of fever, sweats, fatigue, vomiting, headaches, body aches, heart palpitations and a weird taste in my mouth. 4. I first began to experience symptoms on Wednesday, March 25, 2020, when I started to have a bad headache. At that time, I was detained in Housing Unit 9 (H9), in cell number [redacted] with a cellmate. By Thursday, March 26, I was sweating profusely, vomiting, and too weak to get out of my cell. I told my cellmate that something was wrong and asked him to tell the correctional officers (COs) that I needed medical attention. But when my cellmate asked the COs for help, they didn’t listen. The COs said I was “playing,” and that I would “be alright.” 5. Because the COs refused to help me, I had to wait until the next shift, eight hours later. After shift change, the new COs were afraid to come near me after they heard about my symptoms. They told another inmate to put on a glove, come into my cell, and touch it to my forehead. So the other inmate did as he was told. He came in and touched my
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forehead, which was hot and very sweaty. When the inmate showed the COs the glove soaked in my sweat, they finally let me go to sick call. 6. When they first brought me to sick call, the nurse took my temperature and my temperature was 101.2 degrees. When I told the nurse about my symptoms, she said, “oh, you’ve been here a long time, Mr.[Declarant #9], you’ve been here too long to catch the virus.” I kept trying to tell her that something serious was going on, but she wouldn’t listen, and just kept saying, “oh, Mr. [Declarant #9] you’ve been here too long to catch it, you’re not going to catch it.” She gave me two Tylenols, and sent me back to H9. 7. Between Thursday, March 26, and Saturday, March 28, I was brought back and forth between H9 and the medical unit every day. On Friday, I went once. On Saturday, I went three times that day. The first time, I saw the nurse. The second time, I saw the male doctor. And the third time, I saw the nurse and she called the female doctor, who told her to keep me in the medical unit. It costs $4 each time you go to sick call. Each time I came to sick call, they would take my temperature and send me back to H9. I started getting Tylenol regularly on the housing unit. I kept trying to tell the jail staff that my body was over-heating and I was having serious symptoms, but no one would take me seriously. Sometimes I was too weak to even get out of bed. 8. During this time that I was having symptoms and going back and forth to the medical unit, the jail still did not provide me with a mask or gloves or any supplies for cleaning or sanitizing. They just sent me back to the housing unit without anything to protect myself or other inmates. I decided to self-quarantine as much as possible and only left my cell to get my food trays. No one told me to do this, I just did it because I was trying to protect everyone else as best I could.
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9. While I was detained on H9, they never gave us information about the COVID-19 Coronavirus, how it spreads, or how we could protect ourselves. I learned about the virus from talking to other inmates and from the news. I saw on the news that you’re not supposed to gather in groups or be close to other people. So when they told me to line up for medicine, I wouldn’t get in line. I would sit at the table and wait for the line to die down. When the COs saw me do this, they yelled at me to get in line, and when I refused, they sent me to my cell as punishment.
10. While I was detained on H9, protective gear such as gloves and masks and sanitizing products were never provided to inmates. We asked for gloves and they told us we couldn’t have gloves; they told us we had to use our bare hands to clean our cells. They also never gave us masks, but I didn’t specifically ask for a mask because someone got sent to “the hole” over not getting a mask. This guy on my unit asked for a mask and the COs said he couldn’t have one, so he pulled the collar of his shirt over his face. When he refused to take his shirt off of his face, they called in a signal and had him sent to the hole and I never saw him again.
11. On my third trip to the medical unit on Saturday, March 28, they finally moved me to the medical unit, where they detained me in isolation cell number [redacted]. Only after they moved me to the medical unit did they give me a thin paper mask. I have had to use that same dirty little paper mask since then, as they have not yet given me a replacement.
12. I was in isolation cell number [redacted] between Saturday night on March 28 and Friday, April 3.
13. On Friday, April 3, they moved me to the ten-man cell of the medical unit, where I am currently detained in a single room with eight other individuals who have COVID-19.
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Some of the other men in this cell were working on the kitchen unit, preparing the meals for the whole jail, when they first got sick. 14. When they moved us from the isolation cells to the ten-man cell, they forced us to clean our own isolation cells before leaving. They gave us gloves, masks, and bleach for cleaning the toilets, sinks, and anything we touched. They also forced me to clean other isolation cells, including isolation cell number [redacted], where the first COVID-positive woman had been detained. 15. In the medical unit, I was not able to use the phone until Saturday, April 4. I had been asking all week to speak to my attorney, but they wouldn’t let me out of the isolation cell to use the phone. I couldn’t communicate with anyone. When I would ask to use the phone to call my attorney, the COs acted like it was a joke and would laugh at me. 16. Then when they moved me to the ten-man cell on Friday, April 3, I tried to use the phone that’s in our cell. But my PID number had been shut off, so I couldn’t make any calls. 17. The jail is simply not protecting any of us. They tell us to be clean with soap and hygiene, but they don’t give us any hygiene products. It took four or five days before they gave me a hygiene kit in the medical unit. Before then, I had no soap, toothbrush, toothpaste, or deodorant to keep myself clean. I asked them many times, but the COs would play with us and tell us we didn’t need a hygiene kit. Finally the nurse went to the Sergeant and told him what was going on, and the Sergeant got us our hygiene kits. They gave us the hygiene kits for free because we’re on the medical unit. But on the housing unit, the hygiene kits cost about $9. 18. I also have not been allowed to use the shower since being moved to the medical unit. I have not had a shower in nearly two weeks, not since Thursday, March 26. Instead, I
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have been forced to wash myself as best I can in a dirty, mildewed sink. In the isolation cell, I had a bar of soap for myself, but now in the ten-man cell I have to share the sink and bar of soap with the other men in here. We have been provided no liquid soap, no hand sanitizer, no disinfectant. Some of the men in here still have not been provided a toothbrush or toothpaste. 19. In the ten-man cell, we have asked for cleaning supplies. This cell is messed up. There’s lint balls and tissues and paper towels on the floor. There are spiders and centipedes, one guy just killed another spider while I’m talking to you on the phone. And our trash is piled up in bags that they won’t take away since we’ve been over here. The COs refuse to get close to us and they say that anything that goes in, can’t come back out. They just gave us a spray bottle yesterday, but they won’t give us anything else for cleaning. 20. In the medical unit, the COs also won’t give us fresh water, juice, or ice. We are told if we are thirsty, we have to drink water from the dirty sink, even though we have no cleaning supplies to clean the sink and everyone has to use it to clean themselves. There’s an orange water cooler in here with us, but it’s empty because the COs refuse to fill it with ice and clean water. 21. Some guys on the unit seem to have the virus, but they are scared to get tested, because they don’t want to get stuck in the medical unit like I am. They’d rather just let their bodies fight it off. 22. It feels like the COs look at us like we’re going to die soon, so it doesn’t matter how they treat us. If I survive this, I will have to live with this the rest of my life. 23. On Friday, April 3, my bond was paid. I want to be released. But they won’t release me until they decide I’m no longer contagious.
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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 42 of 283 24. I provided the foregoing information over the telephone to Claire Glenn. On April 7,
2020, this declaration was read to me and I confirm its accuracy based on my own knowledge and observations. Because the Prince George’s County Detention Center in Upper Marlboro, Maryland, currently is not permitting in-person visits, this declaration was orally sworn to by [Declarant #9] on April 7, 2020. Under penalties of perjury, I declare that I read the foregoing in its entirety to [Declarant #9] on April 7, 2020, and he confirmed its accuracy to me.
___cg_______________________________ Claire Glenn, Esq. April 7, 2020
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On April 15, 2020, Declarant #9 provided the following information as an addendum to his original declaration:
I, [Declarant #9], certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
25. My name is [Declarant #9]. I am a resident of Prince George’s County, Maryland. 26. I am currently incarcerated at the Prince George’s County Jail in Upper Marlboro,
Maryland. 27. I initially gave a declaration about the conditions at the jail on April 7. But I wanted to
give a second declaration because there have been ongoing issues in the way they treat us at the jail. 28. I am COVID-positive and was detained on the medical unit starting March 28. April 11, seven of us who were COVID-positive and detained in the ten-person cell of the medical unit were moved to housing unit 6 (H6). 29. To my knowledge, there are seven of us with COVID on H6, three more with COVID who stayed behind in the ten-man cell in the medical unit, and four more who, as of April 11, were in the medical isolation cells with green stickers on their doors, which means they tested positive for COVID too (three men and one woman). That’s fourteen of us total. There are also at least two others in isolation without green stickers on their doors. I heard that one of them refuses to take the test for COVID. While we were leaving the medical unit, the COs were bringing two more inmates into the medical unit. I do not know whether they have COVID or not. 30. I do not feel safe on H6. They don’t even have a CO in the housing unit with us. There’s a CO in a chair in the sally port and another CO in the command center bubble. But if something were to happen to one of us, I don’t know how long it would take to get
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someone’s attention or get medical attention. There’s a CO in the sally port right now, asleep in his chair. 31. We have call buttons in our cells that buzz and turn on a microphone that we can use to get the attention of the CO in the command center bubble. But I have a seizure disease. If I were to have a seizure, I wouldn’t be able to push the button. No COs are in the housing unit, so no one would hear what was going on. I’m afraid that if I have a seizure in here, no one will hear it and I will die. The COs buzz into my cell to ask if I’m alright every hour or so. They do this 24-hours per day, even when you’re trying to sleep. Sometimes, you can call them back and let them know you’re trying to sleep. It depends on the CO though. Sometimes they’ll let you sleep and not buzz you for a few hours, other COs will keep buzzing you every hour. In my opinion, this is not an adequate way for the jail to make sure we’re safe and healthy. On one hand, if I were to have a seizure, it could still be an hour or more before anyone knew that I needed medical attention. On the other hand, this system interferes with my ability to get restful sleep. 32. They’re not really doing anything to protect us in here. When they moved me from medical to H6, they forgot to bring my medication over. So I didn’t get my seizure medication on time that first night. I couldn’t go to sleep, because I didn’t feel right without my medication. The next morning, they gave me my medication that I was supposed to take the night before. They told me I should just take it in the morning instead, but that’s not the right schedule for my dosage. I don’t feel comfortable when I’m not able to take my medication when I’m supposed to take it, I don’t know how that might negatively impact my health.
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33. Around 3:00am on April 12, a CO came in to bring us our breakfast trays. At that time, [another inmate, redacted] told the CO he’d been having a bad nose bleed. When I asked him about it, [redacted] shouted to me that it had been bleeding a while, for five to ten minutes. There was blood on the floor, blood in toilet paper, and [redacted] showed all of this to the CO. The CO called the nurse, and the nurse said to just take care of it and clean everything up. They didn’t give [redacted] any medical attention. The doctor has still never been down here, and talking to the nurses is like talking to a door knob – you just get no response.
34. On April 11, before I left the medical unit to go to H6, I asked the nurse to take my temperature with the thermometer that goes in your mouth. At first, she refused to do it. I explained that I didn’t want to have my temperature taken with the scanner thermometer, because it’s not accurate. The last time she took my temperature with the scanner, it said I had a temperature of 93.5 degrees, which just did not seem right. So I made her do it over, and the second time, the scanner showed I had a temperature of 97.3 degrees. Which seemed more accurate, but I don’t know. Because of that, I just don’t trust the scanner at all. After I explained this, the nurse took my temperature with a thermometer in my mouth, and I got a reading of 98.3 degrees.
35. Everyone else in the ten-man cell saw all of this happen. And so then everyone else said they wanted the thermometer that goes in your mouth too. But the nurse was trying to rush out, she wanted to do our temperatures with the scanner. She went and got the Sergeant, because we were complaining, and we told the Sergeant that we value our health and want reliable temperatures taken, since this is the only medical monitoring we’re getting. But the Sergeant said, look, the nurse “has kids.” Well, we have kids too.
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And this is our health we’re talking about. They ended up saying we could either get our temperatures taken with the scanner, or not have our temperatures taken at all, even though the nurse had the mouth thermometer right there with her. Some people got their temperatures taken with the scanner, some people refused on principle. And at first, the nurse wasn’t even going to give food trays to the guys who refused. 36. I have requested to see the doctor every day since Sunday, April 12, since I’ve been on H6. The doctor has not come to H6 once since we’ve been moved here. 37. We still don’t know when we’re leaving either. Not even my attorney has been told when I’m leaving. One of the COs said that the new plan is that all of us who have been moved to H6 are going to be kept here for seven days. But I haven’t been able to get any confirmation of that with the doctor or any medical staff, and the COs don’t always seem to know what’s going on. When I’ve asked the nurse, she simply won’t respond to my questions. 38. In H6, there is also black mold in our cells. There’s mold on my door, on the ceiling of my cell, and on the wall by the sink in my cell. There’s mold that is black, and some that is green. Other inmates on H6 have told me that there’s mold in their cells as well, and I’ve seen the mold inside of one other inmate’s cell. We told one of the COs about the mold, but he is not very high-ranking, and I don’t know if he’s done anything. I haven’t been able to file a grievance. I asked for a grievance form, but they won’t give one to me. Because they won’t accept anything we’ve touched. So we can’t write mail, we can’t write grievance forms, nothing like that. If we complain, the CO says we can’t have a grievance form and we have to wait until the Sergeant comes around. But the Sergeant has never come onto our unit. The only time I’ve seen a Sergeant since we’ve
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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 47 of 283 been moved onto H6 is one time, when a Sergeant came into the command center bubble, and even then he said he wasn’t the Sergeant for our zone, he was just checking on the COs. 39. I provided the foregoing information over the telephone to Claire Glenn. On April 15, 2020, this declaration was read to me and I confirm its accuracy based on my own knowledge and observations. Because the Prince George’s County Detention Center in Upper Marlboro, Maryland, currently is not permitting in-person visits, this declaration was orally sworn to by [Declarant #9] on April 15, 2020. Under penalties of perjury, I declare that I read the foregoing in its entirety to [Declarant #9] on April 15, 2020, and he confirmed its accuracy to me.
___cg_______________________________ Claire Glenn, Esq. April 15, 2020
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EXHIBIT 10

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Declaration of [Declarant #10] I, [Declarant #10], certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746. 1. My name is [Declarant #10]. I am a resident of Prince George’s County, Maryland. 2. I am currently incarcerated at the Prince George’s County Jail in Upper Marlboro, Maryland. I have been detained here since September [redacted], 2019. I contracted the COVID-19 Coronavirus while detained at the jail and have since tested positive. 3. I have pre-existing conditions of high blood pressure and seizures. 4. Before being moved to the medical unit, I was in housing unit 17 (H17), the work unit. We are the guys who work in the kitchen and the sanitation guys, who walk around and get the trash, mop the hallways, clean the staff bathrooms, etc. The guys in the white uniforms, like me, work in the kitchen fixing food for the inmates and the officer dining room (ODR). 5. This outbreak has occurred on our unit, but the whole thing has been hush-hush. When the kitchen workers were first exposed, I noticed guys starting to get sick one at a time. This was around March 29. A couple days after that, guys start going to sick call three at a time with symptoms. It costs $4 to go to sick call. They started going to medical and some of them didn’t come back. Then medical started coming to our housing unit. On Tuesday, March 31, they came and told everyone, “go to your cells, we’re going to open the cells one floor at a time.” They made us line up back to front, with no space between us, and they took our temperatures one by one. Everyone with a high temperature was pulled from the line, and everyone with a low temperature was sent back to their cell. At
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that time, I had a low temperature, so they kept me in the housing unit. Still, they didn’t tell us why they were doing this. 6. Then one day, we came to work, and there were buckets and a pile of rags waiting for us. The kitchen manager said that we all had to wipe down the entire kitchen – all of the handles, the tables, the break room, the handrails, the ovens, the freezers, everything. At the time, we didn’t know what was going on. No one told us why this was happening. While we cleaned, we wore the gloves we prepare the food with, but they didn’t give us masks. They didn’t tell us why, they just gave us the buckets and rags and told us to wipe down everything. I believe that was on Wednesday, April 1. 7. The whole time I was on the housing unit, they never distributed any protective supplies or cleaning supplies. The only people who had gloves and masks were the COs and the nurses. We asked for gloves and masks, but we were told we weren’t allowed to have them, that they were only for the staff, not for inmates. 8. They never gave us any warning or any memorandum in our housing unit saying what was going on, what Coronavirus is, what you can do to protect yourself, what the symptoms are. We never saw one memorandum in our whole housing block. We were never told to stay six to ten feet away from people. Nothing. Of course, every time there’s a change to the phone system or the commissary system, we get a memorandum. But they never gave us a memorandum about Coronavirus. 9. On Wednesday, April 1, and Thursday, April 2, I had a healthy temperature and no symptoms. But on Friday, April 3, I started to have symptoms. I could feel aches in my spine and kidneys, and my body had fevers and chills. One minute I would feel like I’m freezing, and the next I’m heating up and my forehead is sweating. I also had diarrhea.
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And when I would drink liquids, my eye sockets would hurt. I started feeling shortness of breath. My nose was running, and I had a terrible headache. I told my cellmate, something is not right. I know my body, I’m not feeling right. 10. At lunchtime on April 3, when they lined us up to take our temperatures, mine was 100 degrees. I told the nurse I wasn’t feeling right. But she told me, “you’ll be alright,” and left. At around 5:00 p.m. or 6:00 p.m., I started to have real difficulty breathing and my body was really aching and causing me a lot of pain. They told me to hold on and wait until the medical staff returned at 9:00 p.m. So I had no choice but to wait. That evening, when the medical staff came back again to take everyone’s temperature, mine was 104 degrees. They made me step to one side, along with four other guys, and then we all went to the medical unit around 11:00 p.m. They kept three of us, and sent two back to the housing unit. 11. At the medical unit, they put me in isolation cell number [redacted]. The isolation cell they put me in has mucus and blood dried all around the walls, 360 degrees. I wish you could come and take pictures of it. When I say mucus and blood on the walls, I mean it – thick yellow, some green, some yellow with red blood in it. I can also tell someone was bleeding in that isolation cell, because there is blood all along the floor under the bed. I could smell the bleach from where they cleaned the sink and toilet, but they didn’t even mop the floor. And I had to sleep in there and live in there. I asked to be moved to a different isolation cell, but the COs told me, “you put yourself in this situation, so you need to deal with it.” 12. For the first three hours, they made me sit in the isolation cell without any linens. I kept asking for sheets and blankets, and I had to kick my cell door just to get their attention. I
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told them that I was very cold and feeling very sick, and that I just wanted linens so I could go to bed. Finally, after about three hours, they give me linens, but they were dirty. The sheets were stained with big yellow drool stains. I asked for clean sheets, but they wouldn’t give me new sheets. So I put the stained end of the sheets toward the foot of my bed, so at least they wouldn’t be near my face. 13. On Monday, April 6, they moved me to the ten-man cell in the medical unit. When I left the isolation cell, they made me clean it. They told me everything I had touched had to be sprayed down and wiped down. So I did, even though they didn’t give me gloves. 14. When they moved me out of the isolation cell to the ten-man cell, the COs also had me put my sheets in a red bag labeled “hazardous.” Then when I went over to the ten-man cell, they told me they weren’t going to give me fresh sheets after all. They made me come back and pull my dirty sheets back out of the red hazard bag, even though there was other contaminated stuff in there. And those are the sheets I’m still sleeping in now. 15. When they moved me from the isolation cell, they gave me my first bar of soap since I’d been in the medical unit. They also gave me my first fresh pair of drawers and t-shirt since Friday, but I haven’t gotten fresh clothes since then. I’m still wearing the same drawers and t-shirt since April 6. It’s embarrassing. They won’t let us shower, either. We have only one working sink, and I’m sharing it with everyone in here. There are currently ten men in this cell, the maximum. We’ve all got to take turns washing up in that one sink. Although they gave me a bar of soap on April 6, I didn’t get a toothbrush or toothpaste until April 9. I requested it and requested it, but I didn’t get it. I didn’t have any toothbrush or toothpaste between April 3 and April 9. And now when I brush
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my teeth, my gums bleed a lot. I spit into the toilet, because there’s so much blood when I brush my teeth. 16. We’re in the medical unit, but there’s nothing medical or sanitary about this. 17. In the ten-man cell, we don’t have access to liquid soap or hand sanitizer or other sanitizing cleaning products. All we have are little worn-out paper face masks. They’re light blue and very thin paper. I’ve had the same facemask since Friday, and we’re all breathing the same air. We’ve asked to be able to clean the bathroom in the ten-man cell, and they did give us a spray bottle and paper towels, but they didn’t even give us gloves, so we’ve had to clean it with our bare hands. They also refuse to give us a broom, because they say we’d have to then keep the broom in our cell, because nothing that goes in can come out. So there’s dust and hair balls all around the floor in our cell. 18. I’ve had the same mask since Friday, April 3. I’ve been coughing and sneezing into it, and it seems really dirty. When the nurse came by on April 6, she told us to put our masks back on so she could give us our medication. I asked for another mask, because I’ve been coughing and sneezing into mine so much. But she told me I can’t get another mask. I’ve been wearing the same mask since the jail first gave it to me on April 3. 19. On April 8, I tried to wash my mask because it was getting so dirty. I very gently washed it with soap and water in the palm of my hand. I had to be very gentle, because otherwise it would tear apart. I don’t know if that sanitized the mask or not. 20. On April 8, I also started having a problem with my eye. It was a large bump, about the size of a piece of corn, that grew large and started discharging into my eye. It’s red and very painful. I asked the nurse to examine it when she came to bring our food trays and medicine, but she told me, “that’s not my problem.” I asked for some antibiotics. But
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she said no, that I just needed to hold a washcloth to it and wait. I asked for a clean washcloth, but the nurse told me I couldn’t have another washcloth. I still haven’t had my eye examined, and the only washcloth I have is the one I use to clean my whole body in the sink, since we don’t have any access to showers. 21. The only medical attention I receive is getting my temperature checked every day. They haven’t given me Tylenol, the only medication I’ve been receiving is my regular blood pressure medication. They’ve tried to give me my seizure medication too, but I’ve refused it. I’ve lost my spirit, sort of given up, being in this situation. They have never checked my pulse oxygen levels. I don’t know if my oxygen levels have been low or are low now. They have never checked my blood pressure, even though they know I take blood pressure medication. 22. This morning, the nurse came to take our temperatures with the digital scanner thermometer. I told her I don’t want my temperature taken with the scanner, it doesn’t seem very accurate. I asked to have my temperature taken with the regular thermometer, put under my tongue. But the nurse refused. So I didn’t get my temperature taken today, and at first, the nurse wouldn’t give me a food tray either because I was being “difficult.” I asked for her name so I could report this to my lawyer, and after that, she came back, gave me a food tray, and then slammed the door as she left. 23. When we really need something, the staff will open the door, and throw stuff at us through the door. It makes me feel like an animal. There’s also a pile of trash building up inside of our unit, which they won’t take away. There are fumes from guys getting sick in those trash bags, there’s spit on top of it and in it, and the trash is just closed in here with us. I understand, I have a disease. But it’s not like I volunteered for this.
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24. I haven’t asked for a grievance form since I came to the medical unit. First, if you ask for a grievance form, they might not give you one at all. And second, if you even ask for a grievance form, they know you’re trying to report them. I’m too afraid of retaliation by the COs to ask for a grievance form from in here. Things are bad enough as it is. The COs know that we don’t want to go back to the isolation cells, because the conditions are so bad there. I’m afraid if I even ask for a grievance form, they’ll just send me back to the isolation cell. I know I don’t want to go back there.
25. There are going to be more people with the virus coming down to the medical unit. It’s just a matter of time. There’s going to be many more. This is just the beginning. Some people are trying to hide their symptoms, because they don’t want to be punished in the medical unit. People are punished when they go to medical isolation, they’re told “they put themselves in here.” So a lot of people are just trying to tough it out, but it’s spreading it. My cellmate was sneezing and coughing when I left him. I’ve seen people in the kitchen unit sneezing as they prepare food. I’ve seen some people pushing food carts and distributing trays without gloves. The COs have even taken over kitchen duty. On Thursday, April 2, they announced over the loud-speaker that we would be given notice when we could return to work. They told us it was because Coronavirus was spreading in the kitchen unit and they didn’t know if the whole unit might be infected.
26. When I was still on the housing unit, and seeing guys leaving the kitchen unit for the medical unit, I called my son and told him what was going on. But after I told my son what was going on, the next time I tried to use my phone, it said the PID number didn’t match. I checked my account, and there’s money on my phone account. So they must have deactivated it. I wasn’t able to use my phone for over a week. You were the first
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person on the outside I could speak to, and that’s only because another inmate let me use his phone account to talk to you about what’s been going on in here. Then they finally reactivated my phone account on April 9. 27. I’m trying to tell my story to make things better for the wave of people about to come through here, because there’s going to be a wave of people, you better believe that. I want to share any information I can to help. Because the things we’re going through are not right. I want my voice to be heard. Because this is not right. 28. I provided the foregoing information over the telephone to Claire Glenn. On April 11, 2020, this declaration was read to me and I confirm its accuracy based on my own knowledge and observations. Because the Prince George’s County Detention Center in Upper Marlboro, Maryland, currently is not permitting in-person visits, this declaration was orally sworn to by [Declarant #10] on April 11, 2020. Under penalties of perjury, I declare that I read the foregoing in its entirety to [Declarant #10] on April 11, 2020, and he confirmed its accuracy to me.
___cg_______________________________ Claire Glenn, Esq. April 11, 2020
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EXHIBIT 11

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Declaration of [Declarant #11] I, [Declarant #11], certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746. 1. My name is [Declarant #11]. I am a resident of Prince George’s County. 2. I am currently incarcerated at the Prince George’s County Jail in Upper Marlboro, Maryland. I have been detained here since March [redacted], 2020. I contracted the COVID-19 Coronavirus while detained at the jail and have since tested positive for the virus. 3. I have pre-existing conditions in that I am anemic. 4. My symptoms first began at the end of March, and by March 31, I was feeling really bad. At that time, I was on housing unit 10 (H10) in cell number [redacted]. My symptoms were a headache, fever, chills, runny nose, and heavy sweating. 5. That same day, I had a bond hearing. I was given a $1,000 bond with the option of paying ten percent to the Court, and my bond was paid shortly after. Although my symptoms were bad, I was scared to go to the medical unit, because I wanted to get out before they could lock me in isolation. 6. When I still wasn’t released by April 1, however, I was too sick and had to request a sick call. It normally costs $4 to go to sick call. They took my temperature, and my temperature was around 103 degrees. They gave me Tylenol and a mask, but nothing else was done. They took me back to my housing unit and I just had to wait. 7. I kept the mask they gave me in medical on my first sick call. I brought it back to the cell with me. They told me I could keep my mask, because they knew my roommate was in medical. No other inmates on H10 had a mask. I noticed that some of the officers started
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wearing masks, but no masks were distributed to inmates. No gloves were distributed either. I didn’t ask for a mask sooner, because I didn’t know that my roommate was sick like that. No one told me what was going on. 8. At some point, they posted a little poster on the wall about the Coronavirus, in Spanish and English, but I never read it. It is up on the wall near the door where you enter H10. If you don’t know it’s there, you never would see it. I didn’t read it, because I didn’t know it was there at first. I didn’t see it until I started leaving to go to sick call. They didn’t make any announcement or anything telling us about it, and the jail was being locked down more and more at that time. It was like the jail was going through a state of panic, like they didn’t know what to do and were trying to cover things up. 9. On April 2, I came back to the medical unit and my temperature was only 100 degrees. By then, my other symptoms were not as bad and I was feeling a little better. I had been sweating really bad all night and I think I sweated out some of the fever. 10. I went back and forth from the medical unit three times before they finally took my symptoms seriously and put me in isolation. The medical staff didn’t take me seriously until my second visit on April 2. I told them that my cellmate had been in the medical unit for six days. That’s when they looked into things and realized that my cellmate had tested positive, so they had to test me too. 11. On April 5, my test came back positive. I now have to stay here for fourteen days, until they say I’m no longer contagious. 12. Until April 6, I was still wearing those same clothes I was sweating in, for five days. They didn’t give me clean clothes until April 6, and they haven’t allowed any of us to take a shower.
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13. My cellmate on H10 had been moved into my cell, number [redacted], on March 24 or 25. Before that he was in cell number [redacted] with someone else, whom I haven’t seen getting tested in medical. My cellmate was feeling sick when they moved him, and I remember he first went to medical on March 26. He went back and forth between medical for three days, twice every day, until they finally kept him on his second visit on March 28.
14. When I first got moved to the medical unit, they put me in isolation cell number [redacted]. At first, they didn’t give me anything to clean myself with. The only things I had in the isolation cell were a mask, a mattress, a blanket, two sheets, and a towel and washcloth. They finally gave me a cup, toothbrush, toothpaste, and a bar of soap on April 3, sometime that night.
15. They gave me this soap in the medical unit, but on the regular housing units you have to buy soap from the commissary. They give you three small bars when you come in, but if you need more, you have to buy it. I don’t know if it’s antibacterial soap or not, it’s just a bar of soap.
16. I’m was in the isolation cell until sometime in the morning of April 6. I don’t know what time, because they won’t let anyone see the clock. But sometime in the morning, they moved me to the ten-man cell in the medical unit. There’s eight of us in here, all washing out of the same sink. Actually, now there’s nine, while we were talking on the phone, they just added another guy.
17. In the medical unit, I have no access to liquid soap or hand sanitizer, and I haven’t been able to use the shower to clean myself. They only gave me a little paper facemask that
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I’ve been using since my first visit to medical. But I read in the newspaper that these little paper masks are no good for protecting against the virus 18. When they moved me from the isolation cell to the ten-man cell, they forced me to clean up my isolation cell first. That was the only time they gave me gloves, to clean my isolation cell. The isolation cells have mucus, feces, blood, old food, urine, spit, everything you can name on the walls. They gave us paper towels and bleach to clean the isolation cells, and told us to wipe down the sink and toilet with that, and anything we had touched. But everything else in there is the same. Someone should come and take pictures of these cells, they’re disgusting. 19. The ten-man cell is better, but it’s still unsanitary. It’s dusty and there’s spit on the walls. There’s spiders and other bugs. It’s nasty. There’s piles of dust under the beds. It hasn’t been cleaned since god knows when. On April 6, they gave us a spray bottle with some water solution in it and paper towels to clean, but that’s nothing to actually sanitize, it’s useless. My breathing was better in the isolation than it is in here. 20. Everybody in the ten-man cell is asking for something that we’re not getting. And we’re in here because we have medical problems. We’re asking for bigger portions of food, but they say they can’t do it or just ignore us. We ask for fresh water and juice and Gatorade, but they’ve given us none of that. Anything fresh, we don’t get, and when our food trays come, the food is cold and stiff. We ask for showers, but they say we can’t take a shower. They tell us to wash in the sink, but there’s just one sink that all nine of us have to use. They gave me one bar of soap, but not everyone in here with me even has a bar of soap. Some guys don’t have toothbrushes or toothpaste either, some say they haven’t had a toothbrush or toothpaste in a week. We’ve got the same clothes on for five or six days,
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the same underwear for five or six days. I’m still wearing the same drawers since Thursday, and they look nasty. They’re turning black. 21. There’s a pile of trash right now in the ten-man cell right next to the empty water cooler. It’s supposed to be a water cooler for us, but it’s empty. They’re scared to come and refill it, they’re scared to even come and get the trash. They treat us like animals, like they’re afraid to come near us. And anything they do give us, they throw to us like we’re animals, like we’re nothing. 22. My bond is paid and I want to be released. They say I have warrants, but they won’t serve me with the warrants, because I have Coronavirus. So I just have to sit here and wait. They haven’t shut down my PID number, so I can still use the phone. But there are other guys in here who have had their PID numbers shut down, so they can’t even make phone calls. They have to use my PID number to make a call. 23. I provided the foregoing information over the telephone to Claire Glenn. On April 7, 2020, this declaration was read to me and I confirm its accuracy based on my own knowledge and observations.
Because the Prince George’s County Detention Center in Upper Marlboro, Maryland, currently is not permitting in-person visits, this declaration was orally sworn to by [Declarant #11] on April 7, 2020. Under penalties of perjury, I declare that I read the foregoing in its entirety to [Declarant #11] on April 7, 2020, and he confirmed its accuracy to me.
____cg______________________________ Claire Glenn, Esq. April 7, 2020
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On April 13, 2020, Declarant #11 provided the following information as an addendum to his original declaration:
I, [Declarant #11], certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
24. My name is [Declarant #11]. I am a resident of Prince George’s County, Maryland. 25. I am currently incarcerated at the Prince George’s County Jail in Upper Marlboro,
Maryland. 26. I initially gave a declaration about the conditions at the jail on April 7. But I wanted to
give a second declaration because there have been ongoing issues in the way they treat us at the jail. 27. On Saturday, April 11, they moved me from the medical ten-man cell to housing unit 6. They moved six other people too. All seven of us have our own cells here on H6. They have us spread out throughout the whole unit. 28. On Sunday, April 12, around 3:00am, my nose started bleeding. I got up to get my breakfast tray and have my temperature taken, and my left nostril was feeling funny and I noticed it started to bleed. My cell is very dry, and when I breathe in the dry air, it makes me feel short of breath. When my nose started to bleed, I used my buzzer to call for help and told the CO what was going on. The CO called me back maybe 20 or 30 minutes later, and told me the nurse said just to clean myself up, that I was “healing up.” I asked the CO, “healing up from what?” and the CO said “I don’t know.” It didn’t make sense to me. I asked for the nurse’s name, and the CO said he didn’t know. I asked for the CO’s name, and he wouldn’t give it to me. 29. Then around 5:30pm, the nurse came around, and I told the nurse that my nose was still bleeding. I had been keeping a tissue stuffed up in my nose, and I pulled it out to show it
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to her. She ignored me, and just said, “let me take your temperature, let me take your temperature.” I kept asking her about my bleeding nose, I asked her if she saw the blood on my tissue and if she could do anything to help me. And she just continued to ignore me. I saw her write on her clipboard, “blood on tissue,” or something like that, but she didn’t even acknowledge me. 30. I complained to the CO about it, and he said that it was about to be my rec time anyways. So when they let me out for my rec time, I called you to tell you what had happened and that my nose was still bleeding. That was around 7:00pm. You told me that you would speak to your friend who is an ER doctor, and ask him what he thought about it. You told me that you would call the nurses’ station and also call me back if there was any sort of emergency. 31. Then around 8:30pm, the COs told me that you had called back and asked to speak to me. I told them that you’re my attorney and they needed to let me out so I could call you back right away. I told them that there’s a client-lawyer privilege, and I have a right to be able to talk with you. But the CO told me the paperwork says I only get to come out of my cell for one hour per day and nothing more, no matter what. I tried to explain to them that when you called, it was because you really needed to speak to me right away. I told them that they were violating my rights in not letting me speak to you. But the COs said they couldn’t let me out to talk to my lawyer, that it was against the rules, and I was going to have to wait until my one hour of rec time to talk to you. 32. Then this morning around 9:20am, they told me that you had called again and asked to speak to me. But they still wouldn’t let me out to speak to you. Again, I told them that I needed to talk to you. I tried to explain to them. It wasn’t until around 12:30pm that they
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let me out for my one hour of rec and I could finally call you. One hour of recreation time is all I get. So if this phone call takes a long time, I might not have time to shower, clean my room, or call my grandma and my cousin. I try to call my grandma every day. Whenever my hour is up, they’re going to make me go in my room. And if I don’t go, they’re going to call the ERT squad on me or cut my phone number off entirely. The ERT is the emergency response team. When they come in, it’s six or seven very muscular guys, they come in and tell you to get on the ground. And if you don’t get on the ground fast enough, they spray you with pepper spray or grab you and slam you down to handcuff you. 33. It’s like we’re being punished for having this disease. The way they treat everyone, I feel like we’re being punished for having COVID-19. There’s no way they should be denying me the ability to speak to my attorney. And the nurses that come in act like they don’t want to deal with me, they don’t want to get close to me, they don’t want to treat me. They just want to take my temperature and then get away as fast as possible. I told one of them this morning, look, I just want you to do your job. 34. They’ve been giving me a Claritin pill, they never told me why. I guess it has to do with my symptoms. Sometime the nurses give it to me, sometimes they don’t. When they don’t and I ask about it, they tell me they just forgot. They started giving me Claritin when I first started having symptoms, before they tested me for COVID and before I tested positive, when they told me I didn’t have COVID and it was something else. 35. Some of the guys in H6 with me have been on quarantine for almost fourteen days. But we don’t know what’s going on. We don’t know the policy. We don’t know when we’ll
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be released, how long we have to stay here. The medical staff and COs act like we don’t have a right to know what’s going on with our own bodies. It’s like we’re lab rats. 36. They also haven’t given us any cleaning supplies since we got to H6. I also have been using the same sheets since April 2, and they have not been washed since then. There’s nothing to read – to bibles, no books. It’s like they’re trying to drive us crazy in here, in solitary confinement. There has been no psychologist or psychiatrist coming to see us either. The only time someone comes in here is when it’s time to eat. The nurse will come in with the CO who brings our food. Other than that, no one comes in here. 37. We don’t have a clock, so it’s hard for me to even know the exact time or know exactly how long things are taking. But since they brought us to H6, I’ve also noticed that they call into my cell – it seems like every hour or thirty minutes or so – even when it’s the middle of the night and I’m trying to sleep. They’ll call in and say, “Mr. [Declarant #11], Mr. [Declarant #11],” and wake me up and make me get up and buzz them back. Then they say, “we’re just checking to make sure you’re ok.” It prevents me from getting any good rest. 38. I can’t file a grievance about any of this, because they won’t give us any paper or anything to write with. And they’ve said anything that goes into our cells can’t come back out, including paper. 39. I provided the foregoing information over the telephone to Claire Glenn. On April 13, 2020, this declaration was read to me and I confirm its accuracy based on my own knowledge and observations.
Because the Prince George’s County Detention Center in Upper Marlboro, Maryland, currently is not permitting in-person visits, this declaration was orally sworn to by [Declarant #11] on
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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 67 of 283 April 13, 2020. Under penalties of perjury, I declare that I read the foregoing in its entirety to [Declarant #11] on April 13, 2020, and he confirmed its accuracy to me.
____cg______________________________ Claire Glenn, Esq. April 13, 2020
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EXHIBIT 12

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Declaration of [Declarant #12] I, [Declarant #12], certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746. 1. My name is [Declarant #12]. I am a resident of Prince George’s County, Maryland. 2. I am currently incarcerated at the Prince George’s County Jail in Upper Marlboro, Maryland. I have been detained here since January [redacted], 2020. I contracted the COVID-19 Coronavirus while detained at the jail and have since tested positive. 3. I first began to experience symptoms on Thursday, March 26. When my symptoms first began, I was in Housing Unit 10 (H10), in cell number [redacted] with a cellmate. I was not moved to the medical unit until Saturday, March 28, despite ongoing symptoms. On Thursday, I had a fever of 100 degrees during the first sick call. Later that day, my fever increased to 101 degrees. By Friday, my fever was 104.7 degrees. But they just kept sending me back to the housing unit. I went back and forth between the housing unit and the medical unit about five times between Thursday and Saturday. It costs $4 for each sick call. 4. Throughout this time, I was experiencing chills, body aches, coughing, and fatigue, in addition to my fever. On Thursday morning I was still able to go outside to the rec yard, but by later that day, my symptoms became so severe that I was too tired to even leave my cell. When I wasn’t at sick call, I just laid down. The COs knew I was tired and weak, because every time they buzzed my cell door for me to go to sick call, they had to keep buzzing it because I couldn’t get up in time to open my door otherwise. 5. When I went to sick call, the nurse would take my temperature and give me Tylenol. She didn’t do anything else. I told the COs and the nurse that I was afraid I had Coronavirus.
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I also told my cellmate about my symptoms and that I was fearful I had Coronavirus. I even asked another inmate to call my family for me, because I was so concerned that the COs and nurses kept sending me back and forth with my temperature so high, instead of looking into things further or sending me to the hospital. I asked the medical staff to let me go to the hospital and asked for them to give me something to document how high my temperature was, but they refused to give me any paperwork or send me to the hospital. 6. No one ever gave the inmates any information about what the Coronavirus is or how it spreads or how to protect ourselves. Some jail officials in white shirts came a couple weeks ago and said keep our hands clean and wash our hands, but that was it. They never gave us any other information. They never provided us with masks or gloves while on the housing unit, nor hand sanitizer or wipes. At the time, I didn’t ask for those supplies, because I was ignorant as to how contagious the virus is and how long it lives. I didn’t know I needed those things to protect myself. I was never told to stay six to ten feet away from other people. 7. Once I was moved to the medical unit, on Saturday, March 28, I was put in isolation cell number [redacted], which was not clean. It has feces and blood on the walls. The sink was stopped up too, so I couldn’t really use the water. 8. I was in the isolation cell for five days before I was even given a wash cloth or a toothbrush. The CO told me that I didn’t deserve a toothbrush because of the nature of my charges. He said he couldn’t say what my charge was out loud, but that he knew it was bad and I didn’t deserve hygiene supplies. Because of the feces in my cell, I didn’t want to eat my food trays in there, and the CO just made fun of me and said I was being a cry-baby.
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9. I was also in the isolation cell for five days before they gave me a mask. 10. In the medical unit, the nurses come three times per day to take our temperature, give us
medications, and give us our food trays. Other than this, we have not communication with the outside world. In the isolation cell, there was no way for us to notify someone if we were having an emergency, except to get up and bang on the door and hope that someone could hear you. 11. On Friday, April 3, I moved over to the ten-man cell in the medical unit. Before I left the isolation cell, they made me clean it. They gave me gloves, some spray, and brown paper towels to wipe things down, but it was not a thorough cleaning and there was nothing to clean the germs that are airborne. All of the germs are still in there. 12. In the ten-man cell, I still have my toothbrush and a bar of soap. There is no liquid soap, no hand sanitizer, no gloves, no disinfectant spray. I haven’t had a shower since Thursday, March 26. All we have to protect ourselves and to clean are little paper face masks, brown paper towels and a spray bottle with soap and water in it. 13. Before I was in H10, I was in H5, where there were a lot of guys with symptoms. The guy in the cell next to me had bad symptoms that I could here. I was lucky, because I was moved from H5 to H10 on Wednesday, March 25. H5 is a disciplinary isolation unit, and I’m worried there’s guys trapped there with symptoms who can’t call for help or get medical attention. 14. I have seen lots of people coming back and forth between the medical unit and the housing units. I think a lot of guys are having symptoms, but are fearful of being stuck in the medical unit on total lock-down. They’re more afraid of how they’ll be treated in the medical unit than they are of their symptoms, so they downplay things so they can go
3

Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 72 of 283 back to the housing unit where they have access to showers and phones and stuff like that. 15. I provided the foregoing information over the telephone to Claire Glenn. On April 7, 2020, this declaration was read to me and I confirm its accuracy based on my own knowledge and observations. Because the Prince George’s County Detention Center in Upper Marlboro, Maryland, currently is not permitting in-person visits, this declaration was orally sworn to by [Declarant #12] on April 7, 2020. Under penalties of perjury, I declare that I read the foregoing in its entirety to [Declarant #12] on April 7, 2020, and he confirmed its accuracy to me.
__cg________________________________ Claire Glenn, Esq. April 7, 2020
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EXHIBIT 13

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Declaration of [Declarant #13]
I, [Declarant #13], solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true:
1) I provided the information below in response to a standard set of questions read to me over the telephone by Trish McDermott on April 6, 2020. On April 8, 2020, this declaration was read to me and I confirmed its accuracy based on my own knowledge and observations.
2) My name is [Declarant #13]. I am a resident of Prince George’s County. 3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-8. I have been detained at the facility since March [redacted], 2020. During this time, I have observed the following conditions and can make the following representations. 4) Detainees in the unit were not provided masks until late on Monday night, on April 6, 2020. The only people to have personal protective equipment such as gloves are the cleaners. The Correctional Officers have masks. I have heard many people coughing on the unit and some people have been vomiting. When this happens, the person gets taken away, I am assuming they go to the Med unit. 5) Things at the jail are very tense. Everyone seems on edge. There very limited recreational time because the schedule is tight with testing temperatures. No one leaves the unit unless they are taken to medical unit. 6) While I have been told to socially distance from others, there are 50 to 55 people in my unit, and I was not able to maintain an adequate distance during the whole time I’ve been here.
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Before they were letting the whole floor out at a time for recreation, but now it has been reduced to 10 people at a time.
7) People use the phones (the only way to contact the outside world, including my attorney) with no precautions. The phones are not wiped down between callers.
8) I have not noticed anything more than the regular cleaning in the jail, and there has been no further information from the jail on how best to protect ourselves. We find ourselves trying to get information from the news on what to do.
9) I came in fairly recently, so I have a bar of soap, but many do not have adequate personal cleaning supplies. If you don’t have money, you can’t buy soap from commissary.
10) I have asthma, and I am extremely worried about my exposure in the jail. I realize I am in a vulnerable population, and at heightened risk of serious illness from Covid-19.
This declaration was orally sworn by telephone to Trish McDermott, Esq., by [Declarant #13] on April 8, 2020 because in-person meetings are not currently possible due to the COVID-19 epidemic. Under penalties of perjury, I declare that I have read the foregoing in its entirety to [Declarant #13] on April 8, 2020 and that he has sworn to the truth of its contents. ___//s//_________________________________ Trish McDermott, Esq. Assistant Public Defender April 8, 2020
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EXHIBIT 14

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Declaration of [Declarant #14] I, [Declarant #14], solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true: 1. I provided the information below in response to a standard set of questions read to me
over the telephone by Adam Caldwell on April 7, 2020. At the conclusion of the conversation, this declaration was read to me and I confirmed its accuracy based on my own knowledge and observations. 2. My name is [Declarant #14]. I am a resident of Calvert County. 3. I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-16. I have been detained at the facility since January [redacted], 2020. During this time, I have observed the following conditions and can make the following representations. 4. As of yesterday I was provided a single use mask. 5. There is some social distancing occurring in my unit. Recreational time has now been divided into periods, and approximately 10 people out for recreational time at any given time for one hour per day. During this time, people watch television or use the phone. Games have been taken away. I share a cell and there are approximately 70 people on my unit. There seems to be more people on the unit than usual, and more staff. 6. Phone use (the only way to contact the outside world, including my attorney) occurs sometimes with no social distancing. In my unit the phones are approximately a few feet apart from each other. People waiting in line for the phone are told to social distance and stay more than six feet apart from each other. The phones are sometimes cleaned between uses.

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7. Surfaces and areas in common areas are cleaned down by inmates. Guards clean their own desks. Inmates have been asked to clean areas more often.
8. Soap is available when requested. It costs about $1.79 per bar and is delivered once per week. A bar lasts about a week. If you can’t afford soap, small bars are given out for free. Paper towels, sanitizer and cleaners are available upon request.
9. I’ve seen one person taken out of my unit (segregated) due to showing signs of COVID19. Other people have shown symptoms of common colds.
10. I have asked for a grievance form but was refused. This declaration was orally sworn by telephone to Adam J. Caldwell, by [Declarant #14] on April 7, 2020 because in-person meetings are not currently possible due to the COVID-19 pandemic. Under penalties of perjury, I declare that I have confirmed the foregoing in its entirety to [Declarant #14] on April 7, 2020 and that he has sworn to the truth of its contents.
__/S/ Adam Caldwell__ Adam J. Caldwell Assistant Public Defender April 7, 2020

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EXHIBIT 15

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Declaration of [Declarant #15] I, [Declarant #15], solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true. 1) I provided the information below in response to a standard set of questions read to me over the telephone by Ariel Schneller on April 8, 2020. At the conclusion of the conversation, this declaration was read to me and I confirmed its accuracy based on my own knowledge and observations. 2) My name is [Declarant #15]. I am a resident of Prince George’s County. 3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-14. I have been detained at the facility since March [redacted], 2020. During this time, I have observed the following conditions and can make the following representations. 4) I have a cellmate. My cell is approximately ten feet long by six feet wide. My bunk is directly below my cellmate’s bunk and when we are both on our beds we are within six feet of each other. 5) We are not having our temperatures checked or being tested for Covid-19. 6) Detainees in the unit are provided one mask for personal use. We were provided our masks two days ago. I have heard many people coughing on the unit and in the last two weeks have observed more people going to the medical unit than was typical prior to that. 7) The unit has ordered that detainees only use every other phone. Despite this, the people who are on the phone are still within one or two feet of each other. During rec time, about four or five phones are in use at any point in time. The phones are not cleaned between uses.
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8) The only time surfaces and areas are cleaned down is the beginning of each shift. During the day, as people circulate within the housing unit, no steps are taken to wipe down shared surfaces. The staff clean their own areas such as their command desks but I have not seen them clean any other areas during shifts.
9) Detainees have not been provided any personal protective equipment besides the one mask we received two nights ago. We have not been provided any sanitation equipment such as hand sanitizers, disinfectants, or liquid soap. The one exception is that detainees with access to funds can buy soap from the Commissary for approximately $2.50 per bar. The soap is delivered once a week.
This declaration was orally sworn to by [Declarant #15] on April 8, 2020 because the Upper Marlboro Detention Facility is currently not permitting in-person visits. Under penalties of perjury, I declare that I have read the foregoing in its entirety to [Declarant #15] on April 8, 2020 and that he has sworn to the truth of its contents. /S/ Ariel Schneller Ariel Schneller, Esq. Assistant Public Defender April 8, 2020
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EXHIBIT 16

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Declaration of [Declarant #16]
I, [Declarant #16], solemnly affirm under the penalties of perjury and upon personal knowledge that the following is true:
1) I provided the information below in response to a standard set of questions read to me over the telephone by Jeff Campbell on April 8, 2020. At the conclusion of the conversation, this declaration was read to me and I confirmed its accuracy based on my own knowledge and observations.
2) My name is [Declarant #16].
3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-14. I have been detained at the facility since March [redacted], 2020.
4) I have chronic asthma. I have had it since I was born. I take medicine for it called Albuterol. I requested that medicine when I got in the jail, but they haven’t given it to me.
5) I have heard other people in the unit coughing and sneezing. I estimate that there are 5 or 6 people who are coughing and sneezing often. I have heard my cellmate sneeze.
6) We have been told to stay six feet away from other people, but it’s very hard to do. When we use the phones, other people using the phone are much closer than six feet.
7) The phones are wiped down every day, but they are not wiped down between each person who uses them.
8) You get two bars of soap when you get in here; everything else you have to buy. We don’t get liquid soap or hand sanitizer. They just gave us face masks yesterday for the first time. We don’t get any gloves. There are two spray bottles on the whole unit to share between about 80 people. You have to ask for them, and they are always missing or being used. I haven’t been able to use a spray bottle the entire time I have been in this unit.
9) I come within six feet of nine guards every day. All three on the shift come in your cell when they do count, and that happens three times a day. There is no way to avoid having them come into your cell.
10) The unit does not seem clean to me. We are not given bleach or proper chemicals to kill the germs. We have asked for more cleaning supplies but we haven’t gotten any.
11) They are still bringing people into the unit and moving people between units. I am worried because they could be spreading the virus.

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This declaration was orally sworn by telephone to Jeff Campbell, Esq. by [Declarant #16] on April 8, 2020 because in-person meetings are currently not possible due to the COVID-19 epidemic. Under penalties of perjury, I declare that I have read the foregoing in its entirety to [Declarant #16] on April 8, 2020 and that he has sworn to the truth of its contents.
_/s/ Jeff Campbell_____________ Jeff Campbell, Esq. Assistant Public Defender April 8, 2020

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EXHIBIT 17

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Declaration of [Declarant #17]
I, [Declarant #17], solemnly affirm under the penalties of perjury and upon personal knowledge that the following is true:
1) I provided the information below in response to a standard set of questions read to me over the telephone by Jeff Campbell on April 8, 2020 and a follow-up conversation on April 9, 2020. At the conclusion of the conversations, this declaration was read to me and I confirmed its accuracy based on my own knowledge and observations.
2) My name is [Declarant #17]. I am a resident of Prince George’s County.
3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-9. I have been detained at the facility since January [redacted], 2020.
4) Two days ago I had a headache and felt like I had a fever, and I was sneezing. I went to sick call. They gave me headache medicine and Claritin and sent me back to the unit. I asked to be tested for the virus, but they said they don’t have any tests. Last night I went to sick call again. I had a fever and a headache. They told me that my fever wasn’t high enough, and that they would only test me if it got higher. They told me to drink water and sent me back to the unit.
5) My cellmate has been coughing and sneezing. They have us locked in 23 hours a day with 1 hour of recreation time. There is no way for my cellmate and I to distance ourselves from each other.
6) I and other inmates have been asking for facemasks for weeks. We finally got them for the first time three days ago. Before that, some of us, including me, would put our shirts over our mouths to protect ourselves. The guards told us to stop. They told us that if we continued, they would send us to the hole. We also tried to cover the slots in our cells with sheets. The guards told us to take them off, and that they would send us to the hole if we didn’t.
7) There are lots of people in the unit coughing and sneezing. There have been four people who went to sick call and never came back. In some cases, people on the unit have gone to sick call and been sent back, and then they go again and again, and we hear later on that they had the coronavirus. The same people who later left and I heard they had the coronavirus, we had been playing spades with them at the tables just days before. I have told my family that I love them because I feel sure I am going to get the virus in here.
8) A lot of people in the unit who are coughing and sneezing have said they are trying to suppress it because they don’t want to go to the medical unit because of the way people there are being treated.
9) The guards only allow us to use disinfectant on the phone before we use it. They say we cannot take it into our cells.
10) Guards have been passing out the food recently. The guards who pass it out do not wear gloves or masks. Two days ago when they gave me the food, I put the tray back out; I told them I refused to eat it because they weren’t wearing gloves and I was worried they would get me sick. They did not

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give me other food to eat. Instead, they threatened to send me to the hole. I had to eat from my commissary that day.
11) While I am speaking on the phone, I can reach out and touch the person closest to me.
12) I feel like a sitting duck in here. I feel like I’m going to get sick and there’s nothing I can do about it.
This declaration was orally sworn by telephone to Jeff Campbell, Esq. by [Declarant #17] on April 9, 2020 because in-person meetings are currently not possible due to the COVID-19 epidemic. Under penalties of perjury, I declare that I have read the foregoing in its entirety to [Declarant #17] on April 9, 2020 and that he has sworn to the truth of its contents.
_/s/ Jeff Campbell_____________ Jeff Campbell, Esq. Assistant Public Defender April 9, 2020

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EXHIBIT 18

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Declaration of [Declarant 18] I, [Declarant 18], solemnly affirm under the penalty of perjury and upon personal knowledge that the contents of the following paper are true: 1) I provided the information below in response to a set of questions read to me over the telephone by Sean Link on April 9, 2020. In a follow-up conversation on April 12, 2020, this declaration was read back to me and I confirmed its accuracy based on my own knowledge and observations. 2) My name is [Declarant 18]. I am 43 years old and a resident of Prince George’s County. 3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-9. I have been detained at the facility since January [redacted], 2020. During this time, I have observed the following conditions and can make the following representations. 4) I have been fortunate to not have personally experienced any symptoms of COVID-19 up to this point. However, I have noticed a number of other detainees who have experienced symptoms of the virus on the unit, including high temperatures, coughing, and shortness of breath. 5) When people on my unit have experienced symptoms of the illness, their responses have varied. Some sought out medical care; some did not. From what I have seen and been told, the jail’s medical unit does not have any coronavirus tests and are not performing any tests – they are simply taking people’s temperatures and checking them for symptoms of COVID-19. On the units, our temperature is taken twice each day, and if anyone on the unit has a temperature over a certain limit (I don’t know what that number is), then they will be taken to the medical unit.

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However, if detainees only display symptoms without a high temperature, they remain on the unit in general population.
6) I am diabetic, which puts me at increased risk if I am exposed to the virus. 7) Because I am diabetic, I am brought from my housing unit down to the medical unit frequently (3 times each day) for my regular check-ins and treatment with the medical staff. While there, I have seen that the medical unit (which used to have one side for males and one side reserved for females) is now full on both sides with only males. They have removed the females from that side and, to my knowledge, every female is now on the female unit in general population. Within the medical unit, there are some individuals placed in the limited number of isolation cells by themselves, and then the rest are being held together in the 2 larger shared areas (one on each of the sides that are normally divided between males and females). There are 12 bunks in each shared area grouped closely together and without any sort of divider or other protective measures, and these bunks are all filled with men who have been taken to and held in the medical area due to their suspected coronavirus infection. 8) Doctors, nurses, and jail staff have been provided with higher-quality masks with circular air filters built in. They also have access to gloves and other protective equipment. 9) Detainees in the unit have been provided with masks; however, they are a lower-quality variety and do not have these filters. We were issued only one mask each, and had to re-use the same mask each day. It is not possible to clean or wash these masks. They are flimsy, and I feel like a t-shirt tied around my nose and mouth would be more effective as a safety measure. Detainees do not have access to any other personal protective equipment, such as gloves, liquid soap, or hand sanitizer. Soap bars remain available by purchasing them with commissary funds.

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One bar of soap generally only lasts me a couple of days. I have no access to hot water to wash my hands; the only water available to me is the cold water from my cell’s sink.
10) It is almost impossible to have meaningful social distancing on my unit. The unit itself is filled to capacity (with a few cells currently empty due the need for repairs). I would guess that there are more than 95 people currently living on my unit.
11) I continue to have a cellmate living directly in close quarters with me for 23 hours of the day.
12) The policy concerning recreational time was changed this past Tuesday, April 7. On my unit, each of us is now allowed out of our cell for only 1 hour each day, with 10-12 people out of their cells at a time. During this time, people are frequently within six feet of each other, especially if they want to use the unit’s small open-air, outdoor space during this brief window of time. Outside of that one-hour recreational period each day or talking with our cellmate, we have lost all of our opportunities for socializing with other people.
13) Other than this new division of recreational time, no efforts have been made towards encouraging or ordering effective social distancing on my unit. The only times that I have been told to stay at least 6 feet away from people were when I was in the medical unit for my regular diabetes check-ups. That is also the only place where I have seen bulletins or brochures with information about COVID-19 and safety precautions. While in the medical unit waiting for my appointment times, I have tried to read up on this information so that I can share it with all of the other people on my unit. This information is not otherwise being shared with us or told to us.
14) People are no longer allowed to eat at the tables as we used to do. We are given all of our meals in our cells. Our meals remain extremely low in nutritional content – we are not receiving any fruit or any vitamin supplements, and the only vegetable we regularly receive is lettuce.

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Beyond that, we are mostly fed white bread, white rice, and white potatoes – foods that have low nutritional value and can be harmful for people with diabetes (or who are at risk of diabetes).
15) Phone use (the only way to contact the outside world, including my attorney) occurs with insufficient social distancing. In my unit, the 11 phones are approximately one to one-and-a-half feet apart from each other. Every other phone in the line has now been taped down, so that it cannot be used. However, the remaining 6 phones are regularly in use at the same time, which still leaves only about 2-3 feet of distance between each person. The phones are not disinfected between uses; they are wiped down approximately every hour by staff when detainees’ recreational times change. In between each call, we wipe down the phones with our sleeves or whatever else is available.
16) During the day, as people circulate within the housing unit, no steps are taken to wipe down shared surfaces. I sometimes see staff wiping down surfaces, but these are generally just the desks or other surfaces that the staff regularly use – not the ones we detainees interact with.
17) I am regularly in close contact with about 4 different correctional staff members each day. This includes for pat-downs every time I am brought from my unit to the medical unit for a check-up or back again. The staff members use gloves when performing these pat-downs, but I don’t know if any other precautions are being taken.
18) All detainees who were previously on the work unit (performing work in the kitchen, delivering food to the different units, collecting trash from the different units, mopping and cleaning the facility, and other tasks) have now been quarantined to their cells for all but one hour a day, as well. The correctional facility staff – who come in from and return to the community each day – are now responsible for all of these tasks. I have been told that this

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change was made after it was discovered that at least one of the detainees on the work crew had been infected with COVID-19.
19) The range of responses to this situation varies widely among both detainees and correctional staff members. Some people are very fearful; some think it’s all a joke. But as a diabetic, I have to take this very seriously. I wash my hands as often as I can, but I have no access to hot or warm water, and my only access to soap are the small bars I buy through the commissary. Many of us are hyper-aware – not only of symptoms among ourselves, but also irregularities among our staff. We notice when people are coughing, when people are out for a few days, when someone that we’ve never seen before is suddenly working on a shift. We have no idea whether the staff have to have their temperatures checked, or whether any of them have had access to testing. I’m paranoid about one of them passing the virus to us from the outside – or about them having already done it without anyone realizing it. I do not think that we are being sufficiently protected from the risk of being infected during this pandemic.
[Declarant 18] was approved by the Court for release from custody through the Prince George’s County Department of Corrections’ home detention program on April 7, 2020; however, he remained in custody until April 10, 2020, when the county’s Pretrial Services agency was able to process his case and release him into home detention. This declaration was orally sworn by telephone to Sean Link, Esq., by [Declarant 18] on April 12, 2020 because in-person meetings are not currently possible due to the COVID-19 epidemic. Under penalty of perjury, I, Sean Link, Esq., declare that the above substance of this declaration was orally shared by [Declarant 18] on April 9, 2020 over the telephone, that I read the foregoing in its entirety to [Declarant 18] on April 12, 2020, and that he has sworn to the truth of its contents.
Sean Link, Esq. Assistant Public Defender April 12, 2020

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EXHIBIT 19

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Declaration of [Declarant #19]
I, [Declarant #19], solemnly affirm under the penalties of perjury and upon personal knowledge that the following is true:
1) I provided the information below in response to a standard set of questions read to me over the telephone by Jeff Campbell on April 8, 2020 and a follow-up conversation on April 9, 2020. At the conclusion of the conversations, this declaration was read to me and I confirmed its accuracy based on my own knowledge and observations.
2) My name is [Declarant #19]. I am a resident of Prince George’s County.
3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-16. I have been detained at the facility since January [redacted], 2020.
4) I have asthma, bronchitis, and sleep apnea. Lately, I have been coughing and sneezing.
5) A lot of guys on our unit are coughing and sneezing. I know of another person who has been complaining of headaches and shortness of breath.
6) I have been putting in for sick call but I haven’t gotten any medical attention. I first put in for sick call on March 23rd and I haven’t heard anything. The guards have told me that they’re not bringing anyone down unless it’s an emergency. As of April 7, they didn’t even have sick call slips available.
7) I have not been told to stay more than six feet away from other people. It is not possible do stay more than six feet away from other people in here.
8) Starting about four days ago, they started limiting recreation time to only ten people at a time. But before that it was totally regular, one floor at a time, about forty people. People would sit at the tables together and play cards and dominos. People are still doing that, even now. The only space limitation is that only five people can use the phone at once, out of the ten phones on the unit. That started about four days ago. But even still, people are only separated by a few feet when using the phones. The phones are not cleaned between use unless we do it ourselves.
9) We got face masks for the first time about four days ago. They’re little paper masks, and we haven’t gotten any replacements. They haven’t told us how to clean them or anything like that. It is optional to wear them in the unit, but outside the unit we have to wear them.
10) The unit is no cleaner now than it was before the outbreak. I do not feel like we are getting enough protection from the virus.
11) I have been asking the guards in the unit for grievance forms to file a grievance about the way the jail is handling the virus. I have asked multiple times, but I have not been allowed to have a grievance form.

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This declaration was orally sworn by telephone to Jeff Campbell, Esq. by [Declarant #19] on April 9, 2020 because in-person meetings are currently not possible due to the COVID-19 epidemic. Under penalties of perjury, I declare that I have read the foregoing in its entirety to [Declarant #19] on April 9, 2020 and that he has sworn to the truth of its contents.
_/s/ Jeff Campbell_____________ Jeff Campbell, Esq. Assistant Public Defender April 9, 2020

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EXHIBIT 20

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Declaration of [Declarant #20] I, [Declarant #20], solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true: 1) I provided the information below in response to a standard set of questions read to me over the telephone by Terea Williams on April 9, 2020. At the conclusion of the conversation, this declaration was read to me and I confirmed its accuracy based on my own knowledge and observations. 2) My name is [Declarant #20]. I am a resident of Prince George’s County. 3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-9. I have been detained at the facility since December [redacted], 2019 to the present time of this declaration being given. During this time, I have observed the following conditions and can make the following representations. 4) I have been in H-9 during my entire time here at the jail. 5) I went to the medical unit about two weeks ago. While there I saw an inmate from the kitchen unit who was lying down in the bullpen. He had a mask on, was breathing very hard and his eyes were very red. I was only coming there for a toothache check. When I saw him I refused to go into the bullpen and the correctional officers kept telling me to go in there to wait to be checked. I refused medical treatment for my tooth pain so that I could get out of there as soon as possible. 6) About three weeks ago, I noticed one of the inmates (nickname [redacted]) he was in the cell and didn’t come out for four days straight. When he did come out of his cell, he looked like the guy that was in the medical unit (breathing hard and eyes were red). He was taken to medical unit and he never came back.
1

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7) In the middle of the night his cell was cleared out and all his stuff was bagged up and taken out of the unit.
8) I then saw a Hispanic male in cell [redacted]—same thing, he was in his cell for days, not coming out and then he got called to medical days after and he never came back. His items were packed up and nothing was said to us as to why or what was going on.
9) Another guy in cell [redacted, same cell as in paragraph 8]—was the same way, in his cells for days without coming out, called to medical, stuff packed up and nothing said to us.
10) We are only finding stuff out from the news, calling out to our families, and the correctional officers that actually care about us would tell us what was going on.
11) Last week (Monday, 3/30) the health department came here with the news and we were locked in our cells. We didn’t get to communicate with them and they didn’t tell us why they were there.
12) A few days later a correctional officer came into the unit and told us what was wrong; saying that the jail was being checked out due to the COVID-19.
13) Just this past Monday (4/6) we were given masks but no gloves. 14) Starting Monday we have been eating our meals inside of our cells. 15) Social distancing is not being practiced or strictly enforced. I can recall only one correctional officer mentioning about keeping space between us. 16) Spray and paper towels are left out but the correctional officers aren’t themselves wiping phones off or mandating that the inmates wipe them off before or after calls. 17) During recreational time, only 10 people are allowed at a time; just starting this past Monday.
2

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18) The correctional officers are wearing gloves but not all correctional officers have masks on. Correctional officers come in to do arm band checks and many times don’t have their masks on.
19) New correctional officers have been trained to start working on the unit. Food trays are being handed out without masks and gloves on. When inmates complain the correctional officers basically tell the inmates they don’t care.
20) There are inmates saying they can’t smell or taste. 21) The past couple days my nostrils have been burning and my sense of taste is limited. I have allergies so I’m not sure if its sinus from my allergies or what is going on.
This declaration was orally sworn by telephone to Terea Williams, Esq., by [Declarant #20] on April 9, 2020 because in-person meetings are not currently possible due to the COVID-19 epidemic. Under penalties of perjury, I declare that I have read the foregoing in its entirety to [Declarant #20] on April 9, 2020 and that he has sworn to the truth of its contents.
___Terea Williams________________
Terea Williams, Esq. Assistant Public Defender April 9, 2020
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EXHIBIT 21

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Declaration of [Declarant #21]
I, [Declarant #21], solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true:
1) I provided the information below in response to a standard set of questions read to me over the telephone by Trish McDermott on April 9, 2020. At the conclusion of the conversation, this declaration was read to me and I confirmed its accuracy based on my own knowledge and observations.
2) My name is [Declarant #21]. I am a resident of Prince George’s County. 3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-9. I have been detained at the facility since October [redacted], 2019. During this time, I have observed the following conditions and can make the following representations. 4) There seems to be a flu or sickness spreading around the unit, for over 3 weeks now. The Officers in the unit aren’t telling us information, and 4 people have left the unit and not returned. Two of the regular officers for the evening shift have not been seen for a few weeks. 5) There are 82 people in my unit. Many of them are sick or have been sick. There is fear to disclose symptoms because you might be taken to the Medical Unit, where we know there are confirmed cases of Covid-19. Some people have asked for medication/treatment, medical exams, and have been told that what they have is not serious, or it’s a cold. 6) I was sick last week. My symptoms included coughing, sneezing, fever, chills, diarrhea, fatigue and decreased ability to taste or smell. The symptoms fluctuate, they can get worse and then get better, and then get worse again. I feel like I don’t know when I am really better.
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7) My cell mate got sick first. He was taken to medical. They told him that he just had allergies, and then they brought him back and put him back in a shared cell with me. It didn’t seem like allergies to him or me. Then I got sick.
8) I am on cleaning detail, and have been for some time. My duties include cleaning up the unit and distributing food. When I got sick, I didn’t want anyone else to get sick, so I took two days off work. I couldn’t have worked anyway, I had high fever, chills and diarrhea. Then I returned to work and spent two days just handling trash. I then went back to distributing food in the unit – I took a break from handling food for 4 days total.
9) Detainees in the unit are not provided masks or other personal protective equipment such as gloves. I have heard many people coughing on the unit and in the last two weeks have observed more people going to the medical unit than was typical prior to that. When people return from the medical unit, their masks are taken off of them.
10) I am trying to social distance, and there is usually enough space in the unit to do it, except the phones. The phones are very close together. In my unit the phones are approximately a foot to a foot and a half apart from each other. As I talk to my attorney now I could reach out and touch two other people who are using the phones.
11) There are more cleaning supplies now than there used to be, and there are disinfectant materials by the phones, but it requires that everyone who uses the phone to clean up after themselves, and I’m not sure that is always the case. Personal soap is still part of commissary, but we are trying to help each other out where we can.
12) Things have gotten a bit better this week, since we have finally gotten masks and gloves. However, I think this is too late. I feel like everyone in the unit is catching it. We aren’t given any details about who has tested positive, and it seems like almost everyone is sick.
2

Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 105 of 283 This declaration was orally sworn by telephone to Trish McDermott, Esq., by [Declarant #21] on April 9, 2020 because in-person meetings are not currently possible due to the COVID-19 epidemic. Under penalties of perjury, I declare that I have read the foregoing in its entirety to [Declarant #21] on April 9, 2020 and that he has sworn to the truth of its contents. ___//s//_________________________________ Trish McDermott, Esq. Assistant Public Defender April 9, 2020
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EXHIBIT 22

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Consent given
Declaration of [Declarant #22] I, [Declarant #22], solemnly affirm under the penalty of perjury that the contents of the following paper are true: 1) I provided the information below in response to a set of questions read to me over the telephone by Lia Rettammel on April 10, 2020. All responses are based on my own knowledge and observations. 2) My name is [Declarant #22]. I am a resident of Prince George’s County. 3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-9. I have been detained at the facility since June [redacted], 2018. During this time, I have observed the following conditions and can make the following representations. 4) I have been fortunate to not have personally experienced any symptoms of COVID-19 up to this point. 5) The jail is not be specific about the symptoms. 6) There have been quite a few people that have left. When I got brought back to this unit, someone had just left. Maybe 4-5 people that I know of. They didn’t tell us why they left. If I didn’t know those people personally, and know they were sick, I would have never known. 7) They have us on 23/1 lockdown status. We’re locked down for 23 hours a day, and 1 hour for rec. When we get rec changes, it depends on how quickly they get people done. Today I got rec around now (10 AM), but it might be midnight or later. You can use the phones or clean my cell, watch TV, take shower.

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Consent given
8) They are giving us Spray 9 cleaning solution. They just give it to us, and I just douse my whole cell down with. I have a cell mate. He has not had any symptoms, one day he said he wasn’t feeling well, but that was only for an hour.
9) I have seen them cleaning the unit every day after 9:45 PM, the detail does it. They use Spray 9 I hope they use bleach.
10) They gave us these basic flimsy masks about 3 days ago. We are expected to use the same ones, I don’t understand that. It’s not mandatory that we wear them. I guess they just gave it to us to say they did something. It’s not mandatory, some people still come out without them. They don’t give us any gloves, we can use them if we are cleaning our toilet but they don’t hand out gloves on the regular.
11) I have plenty of soap, I had to buy it from commissary. All my soap is antibacterial. The soap bars last about a week. I do have hot water in the cell. I wash my hands frequently.
12) They are trying to tell us to stay 6 feet away from other people and use every other phone but it’s not mandatory.
13) There are 2 correctional staff on each shift. The staff wear a mask, when they are coming to the count. Sometimes they wear masks when they sit at the desk. We get our temperature checked 2out of 3 shifts. I don’t know if the CO’s are getting their temperature checked.
14) I kind of feel scared and upset. The first time I heard about it was from a CO, mostly everyone is upset, maybe a little fear going around too. Under penalty of perjury, I, Lia Rettammel, Esq., swear that the above substance of this declaration was orally shared by [Declarant #22] on April 10, 2020 over the telephone, since inperson meetings are not currently possible due to the COVID-19 epidemic.
/S/ Lia Rettammel, Esq.

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Consent given
Assistant Public Defender April 10, 2020

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EXHIBIT 23

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Consent given
Declaration of [Declarant #23] I, [Declarant #23], certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746. 1. My name is [Declarant #23], and I am a resident of Prince George’s County. 2. I am currently incarcerated at the Prince George’s County Jail in Upper Marlboro, Maryland. I have been detained here since August [redacted], 2019. 3. I have pre-existing conditions of nerve damage in my right leg. 4. I first began to experience symptoms of covid-19 on Wednesday, March 28, 2020, when I started to not be able to smell or taste. At that time, I was detained in Housing Unit 9 (H9), with a cellmate. My cellmate has also not been able to taste or smell. I sought medical attention on March 30th, 2020. 5. I would hit the call button and correctional officers would ignore me, when I attempted to notify them of my symptoms. As a result, I then started to yell for a correctional officer to hear me. The guards continued to ignore me. 6. It took eleven days for me to finally receive medical care, on April 8th, 2020. When I did talk to a nurse, they told me that I will not receive a Covid-19 test, because I did not have a “fever”, and my temperature was 98.9. They prescribed 10 mg of Claritin and said that my symptoms are more consistent with the flu. 7. On Unit 9, there has been three confirmed cases of Covid-19. Other people describe symptoms to the nurses, and the nurses say that those symptoms are more consistent with flu and not Covid-19. There are about 80 people on my unit.
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Consent given
8. I do not think the guards care about us. I repeatedly asked for medical attention and only received medical attention after another correctional officer finally allowed me to seek medical attention.
9. When people, including myself, ask to file grievances about the conditions of the jail, we are told by correctional officers that we cannot have the grievance forms and sometimes to “shut up.”
10. The ventilation system in the jail seems to not be functioning at times, causing it to be hot in the unit and in my cell. Additionally, the vent in my cell has dust blowing out of the vents, and I have to continuously clean up the dust that comes through the vents.
11. I am unable to stay away from others since I have a cellmate. When I use the phone, I am less than six feet away from another person who is on the phone. Additionally, there is someone standing behind me who is waiting to use the phone when I am done.
12. There are about eighty people on my unit. There are twelve phones in operation. But, only seven phones can be used, since every other phone is supposed to be used to maintain distancing. To my knowledge, detail only cleans the phones once a day.
13. The only instructions that I received from correctional officers, regarding covid-19 prevention, is to stay six feet away from others. I was also given a mask on April 6, 2020.
14. I provided the foregoing information over the telephone to Marceliers Hewett II. On April 10, 2020, this declaration was read to me and I confirm its accuracy based on my own knowledge and observations.
Because the Prince George’s County Detention Center in Upper Marlboro, Maryland, currently is not permitting in-person visits, this declaration was orally sworn to by [Declarant #23] on April 10th, 2020. Under penalties of perjury, I declare that I read the foregoing in its entirety to [Declarant #23] on April 10th, 2020, and he confirmed its accuracy to me.
2

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Consent given
__/s/Marceliers Hewett II______________ Marceliers Hewett II, Esq. April 10th, 2020
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EXHIBIT 24

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Declaration of [Declarant 24]
I, [Declarant 24], solemnly affirm under the penalties of perjury and upon personal knowledge that the following is true:
1) I provided the information below in response to a standard set of questions read to me over the telephone by Jeff Campbell on April 10, 2020. At the conclusion of the conversations, this declaration was read to me and I confirmed its accuracy based on my own knowledge and observations.
2) My name is [Declarant 24]. I am 26 years old.
3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County. I am currently detained in Housing Unit H-8. I have been detained at the facility since March [redacted], 2020.
4) I have asthma. Last Thursday or Friday I told the guard that my chest was hurting and they took me down to the medical unit. They hooked me to a machine to help get my breathing to normal. Then they sent me back to the unit.
5) I have been coughing. I am feeling pains and less ability to taste and smell.
6) They have given us paper masks. The guards tell us not to lose our masks because we can’t get a replacement. They tell us not to come ask for one; they won’t give us a replacement. Not all of the inmates in the unit wear their masks. Neither do the guards. I can see the guard right now and he isn’t wearing his mask. The guards’ masks are thicker than ours. Ours are flimsy paper, theirs are thicker.
7) It costs $4 to go to sick call. They take the people with money in their account first, so if you don’t have money it can take a long time to go. If you don’t have money, they debit your account so that it goes negative.
8) The guards take our temperature twice a day. They come to the cell and tell us to put our head in the slot. They measure the temperature and check off our name. I don’t think they record the temperature or anything, just that it was okay. They do not clean the temperature reader between uses. They do not change their gloves between inmates.
9) I try to keep my cell clean, but it is difficult. They don’t let us use bleach. I ask for spray-nine and the guards will say no. I use a rag and my hands to clean my cell. When I can find a way to sneak some spray-nine, I use that too.
10) The showers had not been cleaned from last Saturday until yesterday. Inmates were complaining. The guard said he would “scout out” a bottle of spray-9. Yesterday we got a bottle and inmates finally were able to clean the shower.
11) They say that we are practicing social distancing in here, but it does not seem that way to me. People are within six feet of each other all the time.

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12) I have asked for a grievance so that I can file a grievance about the conditions in here and the way that a CO has treated me. The guards keep telling me I have to wait until next shift. I have been trying to file a grievance the last two days and still have not been given a form.
13) I am very afraid of getting the virus. I am even more afraid because of my asthma, I think it could be very serious for me.
14) I don’t like how the jail is handling the outbreak. I feel like we can’t get any information, and like we can’t trust anything the guards tell us. I don’t think we are getting enough cleaning supplies, and I don’t think it’s clean enough in here.
This declaration was orally sworn by telephone to Jeff Campbell, Esq. by [Declarant 24] on April 10, 2020 because in-person meetings are currently not possible due to the COVID-19 epidemic. Under penalties of perjury, I declare that I have read the foregoing in its entirety to [Declarant 24] on April 10, 2020 and that he has sworn to the truth of its contents.
_/s/ Jeff Campbell_____________ Jeff Campbell, Esq. Assistant Public Defender April 10, 2020

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EXHIBIT 25

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Declaration of [Declarant #25] I, [Declarant #25], solemnly affirm under the penalty of perjury that the contents of the following are true: 1. I provided the below in response to questions my attorney, Elizabeth Tissot, read to me
over the phone on April 9 and April 10, 2020. All responses are based on my own knowledge and observations. 2. My name is [Declarant #25]. I am a 28-year-old resident of Prince George’s County. Currently, I am detained at the Upper Marlboro Detention Center in Prince George’s County. I have been detained here since February [redacted], 2020. 3. I am housed in H-17, with about 85 other people. I share a room with a cellmate. We sleep in bunkbeds; I’m on the bottom and my cellmate is on the top. I would estimate that the top bunk is barely over two feet above the bottom bunk. The unit seems less full than it usually is, because a lot of people have been released due to the COVID-19 pandemic. 4. On any given day, I would guess about two to three correctional officers work in the unit at a time. They go through two or three shift changes a day. The correctional officers wear gloves and masks. Though they have told us that we should all stay six feet apart from the other inmates, the correctional officers definitely get within six feet of us. They come into our cells and touch us, grabbing our arms to see our wrist bands. 5. I have asthma, and while I don’t need a rescue medication like an inhaler on a daily basis, when I get respiratory infections, I tend to get very sick. Last week, I felt really bad for two or three days. I had body aches, a runny nose, and what felt like fluid in my chest. I told one of the guards that I felt sick, and requested to go to the medical unit. About five to ten minutes later, a medical escort came to take me there. Once in Medical, someone I think

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was a nurse took my temperature. It was 101 or 102. Despite this, I only remained in the medical unit for ten or 15 minutes. I was told to return to my cell and drink fluids. That was all. My oxygen levels were not checked. 6. I am not the only person in my unit to get sick. I’ve observed symptoms of what could be COVID-19 in pretty much the whole unit. Lots of guys walk around coughing. One of the guys in my unit had such a high temperature that the whole unit was talking about it. To my knowledge, only five or six guys have actually been quarantined in Medical. About a week ago, those guys were taken away and I haven’t seen them since. I don’t know what’s happening to them in the medical unit, but I doubt they have access to ventilators. I also haven’t heard of anyone being taken to the hospital. 7. Though the guards have been telling us to stay six feet apart from each other, they don’t seem to take it that seriously. Staying six feet away is often not possible—when people are using the phones, for example. There are about ten phones in my unit and they are usually all in use at the same time. The phones are only about one feet away from each other. It’s also impossible to stand six feet apart when waiting in line for meals. The procedure for getting meals has not changed at all. We all wait in a long line to take a tray from a stack of trays. The kitchen workers do wear gloves, hair nets, and a mouth guard, but I believe they’ve always done this. 8. Everyone in the unit was given a mask, less than a week ago, but it’s one of those blue paper masks that is supposed to be disposable. We are not forced to wear the masks. Lots of inmates have simply thrown them away, and they were not given new masks. Wearing the masks is optional. We have not been given gloves, despite requesting them.

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9. We also haven’t really been given any special cleaning supplies. I still buy bar soap from the commissary. Some of the guards will give you soap for free if you request it. There is something called Spray Nine, which I think is an antibacterial spray, that the guards will sometimes give inmates to use. We don’t have free access to it.
10. I have not really observed any increase in cleaning or cleanliness. Sometimes the guards will tell the inmates to spray down the phones with Spray Nine, but this is not consistent. Generally, phones are not cleaned between uses, though individual inmates will do their best. As I was talking to my lawyer on the phone on April 10, 2020, I observed several guys finish phone calls, and the phones were not cleaned.
11. Lately, the guys in my unit have been given about two hours of recreation time a day. People still huddle together playing cards and chess. People are still close. We haven’t been told not to do that. I have noticed that people haven’t been playing sports like basketball lately, but that’s not because contact sports were barred. We haven’t really been given any new rules for our recreation time.
12. In addition to the masks, we have been getting twice daily temperature checks for a little over a week. For a while the nurses checking our temperatures would just use regular thermometers, with a disposable plastic sheath that would be changed between temperature checks. The nurses taking our temperatures wear gloves, but they do not change those gloves between temperature checks. The person getting their temperature checked basically gets their germs all over those gloves, breathing all over them, and the nurses do nothing about it.
13. Lately, the nurses have been doing temperature checks from a few feet away, with something that looks like a laser gun. I don’t believe these thermometers are very accurate.

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14. I don’t feel as sick as I did last week, but I still don’t feel one hundred percent. I feel stuffed up and congested, like there is fluid in my lungs. I feel dehydrated and am trying to drink as much water as possible.
15. I haven’t filed any grievances, because the jail staff makes the process difficult. Some of the correctional officers give you a hard time about filing them, and it’s difficult to get in touch with the Zone Commander—something you need to do to file a grievance. I also haven’t requested an official sick call, though I have heard that it does cost about four dollars. If you want something like Tylenol, the jail staff is going to try to charge you four dollars.
16. I feel like we’re being kept in the dark about how bad this pandemic is. We watch the news and hear stories from people on the outside, but the guards are not being honest about how many people within the jail are infected. In fact, to my knowledge they haven’t told us anything about people being infected in the jail, though we know they are. I would guess at least six people from my unit alone, H-17, have gotten infected.
17. Obviously, everyone is scared of getting sick. There is no help in here. If you get sick, you might be done. It feels like no one working at the jail actually cares about us and our health.

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Under penalty of perjury, I, Elizabeth Tissot, Esq., swear that the above substance of this
declaration was orally shared by [Declarant #25] on April 9 and April 10, 2020, over the
telephone, since in-person meetings are not currently possible due to the COVID-19 epidemic.
Respectfully submitted,
/s/ Elizabeth M. Tissot Elizabeth M. Tissot Attorney for Defendant Assistant Public Defender Courthouse, Suite 272-B Upper Marlboro, MD 20772 (301) 952-2141 CPF: 1712140226

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EXHIBIT 26

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Permission to share given
Declaration of [Declarant #26] I, [Declarant #26], solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true: 1) I provided the information below in response to a standard set of questions read to me over the telephone by Cristina Najarro on April 10, 2020. After this declaration was drafted, it was read to me and I confirmed its accuracy based on my own knowledge and observations. 2) My name is [Declarant #26], I am thirty-three years old. I am a resident of Baltimore City. 3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County and I have been here since March [redacted], 2020. I am held pretrial on a violation of a protective order charge, with a maximum penalty of ninety days. I am currently detained in Housing Unit H-17, which is known as the “work unit.” We would work in the kitchens, handling food and going in and out of the other units at the jail. We are not doing food service now. 4) I am HIV positive. Over the past two weeks, I have had chills and fever, a slight cough, body pain and a sore throat. I requested a “sick call,” to go to the Medical Unit for care. I requested that the week of March 30th and I was finally seen on April 9, 2020. 5) It costs $4 to go to a sick call. I can afford this, but not everyone in the jail can. 6) My oxygen was checked with a machine they put on my finger. I do not remember the exact number, but it was high, somewhere around 98%. I was told my case was not serious enough to have additional care, and that the Medical Unit is only seeing emergency cases. 7) I have been feeling dehydrated, but I have not been getting additional fluids or IV treatment. I was told to drink the water in the cells.
1

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Permission to share given
8) I have also noticed symptoms of COVID-19 in my cellmate, who has been coughing and saying that his chest was hurting.
9) In the last week, my unit has made changes in response to COVID-19. For instance, until Monday of last week (April 6, 2020), people were sleeping on bunkbeds in the open recreation area. However, they were moved out into other cells on April 6th. Now, there are about fifty people on my unit, compared to probably about ninety people before.
10) I have been told to socially distance and stay more than six feet away from others. It is difficult because there are so many people. The COs have been trying to stagger people getting meals and medicine, but it is hard when everyone is waiting to get their medication.
11) The COs have also limited our rec time to one hour per day, with only ten people out of their cells at a time. This started early this week as well. It is still difficult because everyone wants to use the phones to get in touch with family members and lawyers, and the phones are only one foot apart. The COs do disinfect the phones between uses.
12) At the beginning of last week (April 6th week), on Sunday or Monday, the COs passed out masks to everyone and started doing temperature checks two times per day. They seem more responsive to people showing symptoms now than last week and before that.
13) I get soap for free, and I have also been given a face mask, the type that you get when you go to the doctor. It has so far not been replaced. I have access to gloves and disinfectants if I request them.
14) Some of COs are worried and take this situation seriously, while others do not seem to know a lot about it. Some of the COs snap at us and try to put this virus on the inmates, but we know that it can come in from them. They leave and go out into the world every day. They are
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Permission to share given
putting us in jeopardy if they are not cautious. If we say something to them about wearing their masks, some of them will snap at us.
15) I do feel that the COs are mostly doing the best they can, considering the time and how quickly things have happened. They are just following the orders and protocols they are given.
16) I know that I was not sick when I first arrived in jail. I did not come onto this unit for at least two weeks after arriving, so if I am sick now, I got sick from someone in the jail.
17) I try to distract myself and I do not want to dwell on this COVID-19 situation all day. I have anxiety and I do get medication for it, so I do not want to make things worse for myself. This declaration was orally sworn by telephone to Cristina Najarro, Esq., by [Declarant #26] on April 13, 2020 because in-person meetings are not currently possible due to the COVID-19 epidemic. Under penalties of perjury, I declare that I have read the foregoing in its entirety to [Declarant #26] on April 13, 2020 and that he has sworn to the truth of its contents. __/s/__________________________________ Cristina Najarro, Esq. Assistant Public Defender April 13, 2020
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EXHIBIT 27

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Permission to share given
Declaration of [Declarant #27] I, [Declarant #27], solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true: 1) I provided the information below in response to a standard set of questions read to me over the telephone by Cristina Najarro on April 10, 2020. After this declaration was drafted, it was read to me and I confirmed its accuracy based on my own knowledge and observations. 2) My name is [Declarant #27], I am thirty-three years old. I am a resident of Baltimore City. 3) I am currently incarcerated at the Upper Marlboro Detention Center in Prince George’s County and I have been here since March [redacted], 2020. I am held pretrial on a violation of a protective order charge, with a maximum penalty of ninety days. I am currently detained in Housing Unit H-17, which is known as the “work unit.” We would work in the kitchens, handling food and going in and out of the other units at the jail. We are not doing food service now. 4) I am HIV positive. Over the past two weeks, I have had chills and fever, a slight cough, body pain and a sore throat. I requested a “sick call,” to go to the Medical Unit for care. I requested that the week of March 30th and I was finally seen on April 9, 2020. 5) It costs $4 to go to a sick call. I can afford this, but not everyone in the jail can. 6) My oxygen was checked with a machine they put on my finger. I do not remember the exact number, but it was high, somewhere around 98%. I was told my case was not serious enough to have additional care, and that the Medical Unit is only seeing emergency cases. 7) I have been feeling dehydrated, but I have not been getting additional fluids or IV treatment. I was told to drink the water in the cells.
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Permission to share given
8) I have also noticed symptoms of COVID-19 in my cellmate, who has been coughing and saying that his chest was hurting.
9) In the last week, my unit has made changes in response to COVID-19. For instance, until Monday of last week (April 6, 2020), people were sleeping on bunkbeds in the open recreation area. However, they were moved out into other cells on April 6th. Now, there are about fifty people on my unit, compared to probably about ninety people before.
10) I have been told to socially distance and stay more than six feet away from others. It is difficult because there are so many people. The COs have been trying to stagger people getting meals and medicine, but it is hard when everyone is waiting to get their medication.
11) The COs have also limited our rec time to one hour per day, with only ten people out of their cells at a time. This started early this week as well. It is still difficult because everyone wants to use the phones to get in touch with family members and lawyers, and the phones are only one foot apart. The COs do disinfect the phones between uses.
12) At the beginning of last week (April 6th week), on Sunday or Monday, the COs passed out masks to everyone and started doing temperature checks two times per day. They seem more responsive to people showing symptoms now than last week and before that.
13) I get soap for free, and I have also been given a face mask, the type that you get when you go to the doctor. It has so far not been replaced. I have access to gloves and disinfectants if I request them.
14) Some of COs are worried and take this situation seriously, while others do not seem to know a lot about it. Some of the COs snap at us and try to put this virus on the inmates, but we know that it can come in from them. They leave and go out into the world every day. They are
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Permission to share given
putting us in jeopardy if they are not cautious. If we say something to them about wearing their masks, some of them will snap at us.
15) I do feel that the COs are mostly doing the best they can, considering the time and how quickly things have happened. They are just following the orders and protocols they are given.
16) I know that I was not sick when I first arrived in jail. I did not come onto this unit for at least two weeks after arriving, so if I am sick now, I got sick from someone in the jail.
17) I try to distract myself and I do not want to dwell on this COVID-19 situation all day. I have anxiety and I do get medication for it, so I do not want to make things worse for myself. This declaration was orally sworn by telephone to Cristina Najarro, Esq., by [Declarant #27] on April 13, 2020 because in-person meetings are not currently possible due to the COVID-19 epidemic. Under penalties of perjury, I declare that I have read the foregoing in its entirety to [Declarant #27] on April 13, 2020 and that he has sworn to the truth of its contents. __/s/__________________________________ Cristina Najarro, Esq. Assistant Public Defender April 13, 2020
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EXHIBIT 28

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Declaration of Ariel Schneller
I, Ariel Schneller, solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true:
1) I am an Assistant Public Defender in the Prince George’s County Office. I have been working in my current position for six months. In that time, I have represented approximately 400 clients. At any point in time I represent between fifty and eighty clients. Prior to working in the Prince George’s County office, I worked as an Assistant Public Defender in New York City for five and a half years.
2) As a matter of procedure, if a defendant is held by the Court following his initial appearance on a matter, the typical mechanism for contesting his pretrial detention is to file a motion in the District Court seeking a reconsideration of bond. The Court can grant the motion and order a hearing, or it can deny the motion summarily with no reason given. After a defendant is denied release—either by a summary denial of their motion or after a hearing in front of a Judge—the defendant can either file another bond reconsideration motion1 or can file a petition for habeas corpus in the Circuit Court.
3) The Office of the Public Defender in Prince George’s County has compiled a spreadsheet of pretrial detainees in Prince George’s County (hereafter “Spreadsheet A”). Every attorney in the office has been told to fill out information pertaining to their clients including, inter alia, whether a motion for reconsideration of bond has been filed for any particular client. We have also been told to indicate whether any further motions or petitions for release have been filed after the initial reconsideration of bond motion.
4) The spreadsheet is revised every week. Each week, clients who are released from the jail are taken off the list. These cases are compiled in a separate spreadsheet with all the same data fields as Spreadsheet A (the spreadsheet of people released is hereafter “Spreadsheet B”).
5) On April 14, 2020, I analyzed both spreadsheets for the purposes of this declaration. The following is an analysis of cases in which, according to Spreadsheets A and B, the Office of the Public Defender has filed a motion for reconsideration of bond or a petition for habeas corpus between March 16, 2020 and April 8, 2020.
6) My methodology for putting together this declaration is as follows. I have reviewed the case history on Secure Case Search2 for every case in which Spreadsheet A or Spreadsheet B indicates our office filed a bond motion.3 I have also included three cases that did not appear on either spreadsheet but were brought to my attention by the attorney who filed the motions.
1 This is rarely done in normal circumstances as Courts discourage relitigation of bond status after a Judge has previously ruled on the matter. Supplemental filings are typically reserved for situations in which new developments in the case occur that justify reapplying for relief.
2 Secure Case Search is a portal available only to the Courts and litigants who have been approved to access the portal. It is essentially a database that provides access to all the information regarding a case that the Clerk’s office records. 3 I cannot affirm that the spreadsheet is an exhaustive list of all cases in which a motion was filed as each individual attorney is required to indicate in the spreadsheet if they filed a motion.
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7) For each case, I have noted the date of filing of any motions to reconsider bond,4 how many days it took for the Court to rule on the motion, whether the Court granted a hearing, and how many days it took from the date the Court granted the hearing for the hearing to occur. I have also recorded the result of the hearing and information regarding any subsequent motions or petitions for relief. I have divided the motions for reconsideration of bond into three categories: motions for misdemeanor cases,5 motions for felony cases, and motions for defendants charged with violations of probation. Across all three of these categories I have aggregated and analyzed the cases in which a defendant was eventually released pursuant to a Court order. I have also aggregated information regarding petitions for writs of habeas corpus from Case Search.6
Delay in Misdemeanor Cases
8) There are 29 misdemeanor cases in the data set. In six of these cases, the Court summarily denied the initial motion for reconsideration of bond without a hearing. While most of the summary denials occurred within two days of filing, in two of the cases it took the Court thirteen days to summarily deny the motion.7 In one case the Office of the Public Defender filed a supplemental motion seeking relief after denial of the initial motion. That motion has been pending with no action for six days.
9) In total there were 25 misdemeanor cases in which the Court ordered a hearing at some point, whether upon an initial motion or a supplemental filing.
10) In these 25 instances in which a hearing was ordered, the Court took an average of 4.46 days after the filing of the motion to order a hearing.
11) Once the Judge granted a hearing in these cases, the delay between the hearing being ordered and the hearing taking placed can be as much as eight days. On average, the delay between a hearing being ordered and the hearing actually occurring was 3.77, or basically 4, days.
4 For most cases, I have used the filing date noted in Secure Case Search. However, occasionally the clerks do not input the date the motion was filed and only note when the motion was ruled on. In these cases, I have used the filing date input into the Spreadsheets by the attorney who filed the motion. 5 Misdemeanor cases are cases in which the highest initially-charged crimes were misdemeanors or cases that began as felonies but were reduced to misdemeanors after the government dismissed the felony charges. 6 Although the data held by the Case Search system is less robust than that of Secure Case Search, Case Search was used for information regarding the petitions for habeas corpus because habeas petitions are filed in Circuit Court and Secure Case Search does not work for Circuit Court cases. 7 This is important because typically a Circuit Court will deny a petition for habeas corpus if there is a bond reconsideration motion pending. Accordingly, these delays in receiving a denial cause additional delays in seeking out further relief.
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12) Thus, for defendants whose cases were reviewed at a bond hearing, the average duration from the date of the filing of the original bond reconsideration motion to the hearing occurring was 8.72, or almost nine days.8
Felony Cases
13) The Office of the Public Defender has filed 20 motions for reconsideration of bond for defendants charged with felonies. In twelve of these cases the initial motion was summarily denied without a hearing being ordered. Of those twelve summary denials, three clients eventually received hearings and were released after the Office of the Public Defender filed a supplemental motion. In seven cases the initial reviewing Judge ordered a hearing. In one case, a motion was filed four days ago and still has not been ruled on.
14) In the ten cases in which a hearing was ordered, an average of four days passed between the filing and the hearing being ordered. Once the hearing was ordered, it took an average of 4.2 days for the hearing to occur.
15) On average, in cases in which a hearing was ordered the delay between the initial filing of the motion and the hearing occurring was 8.2 days.
Violations of Probation
16) When a person is sentenced to probation and later accused of violating their probation, a Judge determines whether to release the person pending their Violation of Probation hearing. The Office of the Public Defender has filed motions for release for four defendants accused of violating their probation. In one of them, after six days, the Judge ruled on the motion and released the defendant.
17) In the other three cases, there has been no ruling on the motion. These motions have been pending for six, 13, and 21 days respectively.
Habeas Corpus
18) The Office of the Public Defender has appealed seven summary denials of motions to reconsider bond via a petition for habeas corpus.
19) I have reviewed the petitions for habeas corpus in these cases (five of which I personally filed). In five of these cases, the petitioner challenged their detention based on the dangers posed to them in the jail by the COVID-19 virus, the illegality of indefinite pretrial detention given the court closures, and the violation of Due Process that occurs when a defendant is held without an evidentiary hearing. See United States v. Salerno, 481 U.S. 739, 755 (1987).
20) Additionally, one of the petitioners noted the serious danger he faced if exposed to COVID19 due to his sleep apnea, asthma, high blood pressure and obesity.
8 Note that this is not equal to the sum of the average time it takes a Judge to order a hearing (4.46 days) and the average time it takes the hearing to occur (3.77 days). This is because this number includes cases in which a defendant was initially denied a hearing and received one after a supplemental filing, and the time between the initial denial and the supplemental filing in these cases is not accounted for in the computation of the other two averages.
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21) All seven petitions for habeas corpus were summarily denied without a hearing. People Who Have Been Released 22) The data set included 53 people across the three categories of pretrial detainees (those
facing misdemeanor charges, those facing felony charges, and those facing violations of probation). Of these 53 people, 18 were released after filing a motion. Twenty-five defendants who filed motions have been denied relief and are still held in jail. There are ten cases in which either the Court has yet to rule on the motion or a hearing has been ordered but not yet taken place. 23) For the 18 people released after filing a motion, the average delay between filing the motion that was granted and the Judge ordering a hearing was 5.61 days. The average delay between the Judge ordering the hearing and the hearing occurring was 3.5 days. For people eventually released, the average delay between their initial motion being filed and their release was 9.5 days.9 Under penalty of perjury, I declare that the above statements are true based on my personal knowledge.
Sincerely,
Ariel Schneller April 16, 2020
9 As in footnote eight, this number is slightly higher than the sum of the average time it takes a Judge to order a hearing and the average time it takes an ordered hearing to occur. This is because of cases in which the hearing was ordered upon filing of a supplemental motion. As explained in footnote eight, the time between the denial of the motion and the filing of the supplemental motion is not accounted for in the computation of the other two averages.
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EXHIBIT 29

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Declaration of Claire Glenn, Assistant Public Defender
1. My name is Claire Glenn. I work at the Maryland Public Defender’s Office as an Assistant Public Defender in Prince George’s County, Maryland. I am a resident of Washington, D.C.
2. As an Assistant Public Defender, I represent people accused of crimes in Prince George’s County who otherwise could not afford a lawyer. I represent clients in both the District and Circuit Courts in Hyattsville and Upper Marlboro, Maryland. Six of my clients are currently detained in the Prince George’s County Detention Center awaiting trial.
3. Having represented clients detained at the jail, both before and after the outbreak of COVID-19, I can attest to the following facts:
4. Prior to the COVID-19 outbreak, I was assigned to represent people in their initial bond hearings at the jail approximately five times per month. In this role, I would go to the jail with a list of clients at 9:00 a.m., walk from housing unit to housing unit to interview each of those clients, and then appear for bond hearings at 1:15 p.m. For these bond hearings, I would appear with my client in the jail’s mini-courtroom, both of us appearing over a large computer monitor in courtroom 261B in the District Court in Upper Marlboro.
5. Through bond hearings and regular visits to my incarcerated clients, I have become familiar with the jail, its layout, the various housing units, and their conditions.
6. The jail is shaped like a donut, with a courtyard in the middle, and one off-shoot hallway with additional housing units. The housing units connected to this off-shoot hallway are known as “up the hill,” because the off-shoot hallway is on an incline.
7. When you first enter the jail, there is a reception desk to your left, a waiting room to your right, and a security station directly ahead. This security station is where the COs now do temperature scans. The last time I had my temperature scanned, the CO did not appear to know how to use the scanner. I was with several other attorneys, attempting to visit our clients. The CO told us that she did not know how far the scanner was supposed to be from our foreheads. When she scanned my forehead, the scanner lightly touched my face for much of the scan. She did not clean the scanner in between scans of different people. My scan, as well as the scans of several other attorneys, came back with the reading, “low.” The CO said that she did not know whether this meant our temperatures were low or the battery on the scanner was low. She eventually gave up and let us all in, despite the fact that we had not received accurate temperature readings.
8. Once you pass through this first security station, you walk down an open-air hallway and into an atrium. In the atrium, there is a second security station to your right, a stairway to
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your left, the entrance to the prisoner areas of the jail straight ahead, and various doors to offices, the jail courtroom, the jail processing unit, and the IT offices. The stairway leads up to the visiting booths for both attorneys and non-attorney visitors, including contact and non-contact visiting booths. Prior to the Coronavirus, I would go upstairs to visit clients approximately once per week.
9. When I am assigned to do initial bond hearings, I proceed through the second security station and then enter the prisoner areas of the jail. To my right is the entrance to the processing unit, where prisoners wait to be processed in and out of the jail, and the jail’s mini-courtroom. As you proceed around the circular hallway, you pass the entrances to housing units 11B, 11A, 10, and 9 on your right. The medical unit entrance is on your left. Continuing on, you pass housing units 8 through 3 in descending order, as well as the kitchen and the gym. After you pass housing unit 3, you can either turn left to complete the circle or turn right to go “up the hill” to housing units 1, 14, 15, 16, and 17.
10. Housing unit 1 is where all female prisoners are detained, with the exception of the medical unit. All other housing units are for men and male-at-birth prisoners. Housing units 5 and 6 are disciplinary isolation units. Housing unit 6 is also used as a medical isolation over-flow unit, when the isolation cells in the medical unit are full. Housing unit 8 is the initial housing unit, where prisoners are detained until they are cleared for tuberculosis. Housing unit 11A is where juveniles are detained when they are not transported to a juvenile facility. Housing unit 11B is a unit where people are detained when they have medical issues and health vulnerabilities, but the medical staff has determined they do not need to be housed in the actual medical unit. This is also often where LGBTQ people are detained, particularly transgender and gender non-conforming people who were male at birth. Housing unit 17 is the work unit. Male prisoners that do not fit the above criteria are detained in housing units 7, 9, 10, 14, 15, and 16. I’m not aware of any people presently detained in housing units 2, 3, or 4. My understanding is that the mold got so bad in those housing units that they are no longer used at all.
11. Although the housing units are not identical, they all have similar layouts. Generally, two correctional officers stand at a large desk against one wall, looking out towards the several dozen cells that wrap around the three remaining walls, one after the other. In most housing units, cells wrap around the first and second floors. The middle of the housing unit often includes several small tables with four stools each, all bolted to the floor, where people eat and play cards. Many housing units also have plastic chairs where people can sit and watch television. The phones are usually located against the wall near the correctional officers’ desk, lined up with only about a foot or two of separation between them. There also are usually about half a dozen showers in each housing unit, though usually there are a couple that have the least mold and the best water pressure that get the most use.
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12. With the exception of the isolation units, most people are detained two per cell. In some housing units, like housing units 8 and 17, there are not enough cells even when two people are detained in each cell. In these housing units, some people must sleep on bunkbeds in the middle of the housing unit. In these housing units, there are usually two or three dozen bunkbeds, set up in a tight grid with only a foot or two between beds.
13. The housing units have very poor circulation. The jail struggles to regulate temperatures as a result, particularly during the winter and summer months. In the winter months, for example, cells against outer walls will be freezing cold, while meeting rooms and attorney visiting booths will be so hot that sweat drips down my face and soaks through my clothing as I interview clients. Most of the housing units also have large dark patches of mold that cover the ceilings and grow on the walls. The air in the housing units is often very stale and musty.
14. As noted, the jail also has a “medical unit.” When you first enter the medical unit, there is a large holding cell with benches to your right, where people from other housing units who have requested a sick call sit together while waiting to be seen by the nurse. There is also a nurses’ station and several nurse offices. To the left is the housing area of the medical unit. The housing area is divided in two sides that roughly mirror each other, with a command center bubble in the middle. Both sides contain a ten-person cell, which is an open cell with ten single beds lined up shoulder to shoulder in two rows. Both sides also contain isolation cells. Prior to the COVID-19 pandemic, the sides were roughly sex-segregated – one ten-person cell for male prisoners and one ten-person cell for female prisoners – although male prisoners would at times be detained in isolation cells on the “female side.”
15. The jail generally is an unsanitary place, with grimey doors and handles that are frequently touched, and stains on the ceilings and walls. Dust bunnies frequently tumble across the floors and accumulate in corners. The places where people are detained in isolation – in the medical unit and housing units 5 and 6 – are particularly unsanitary. The walls of the isolation cells frequently contain blood, feces, and mucus, and they smell horrible. There are often unknown substances smeared across the cell door and window and crusted onto surfaces.
16. As a criminal defense attorney, I have a legal and ethical duty to communicate with my clients. My clients, in turn, have constitutional rights to communicate with me. Although my caseload can be a constraining factor, I work hard to stay in regular communication with all of my clients, particularly those who are incarcerated. Prior to the COVID-19 pandemic, I would visit clients at the jail approximately once per week. To visit my clients, I would sign in, provide my ID and client list to the receptionist, and proceed to the appropriate attorney visiting booth.
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17. In response to the pandemic, the jail has severely limited my ability to communicate with my clients, even prohibiting me from speaking to certain clients entirely. For example, one of my clients was not permitted to call me for the entire week that he was detained in an isolation cell in the medical unit awaiting his COVID-19 test results. He was detained in the isolation cell starting on March 28, 2020, where his requests to speak to me were denied. I was first denied my request to speak to him on March 31, 2020. Between March 31, 2020, and April 4, 2020, I called the jail every day, multiple times per day, to request to speak to my client and complain when my requests were denied. Each day, my calls would be transferred from jail official to jail official. Sometimes I would be promised that my client would call soon, sometimes I would be told I could not speak to my client at all, with no end in sight. One official at the jail even told me, untruthfully, that my client had been given access to a phone and simply did not want to call me. Finally, on Saturday, April 4, I was told that I would only be permitted to communicate with my client if I came to the jail and agreed to be locked into his isolation cell with him. Only after I agreed to come and be locked in my COVID-positive client’s cell did the jail then change its mind and allow him to call me that afternoon.
18. If I hadn’t attempted to call that client on March 31, I never would have known that he was symptomatic, being tested for COVID, and being denied access to any form of communication with me or his loved ones. I suspect there are other individuals being detained in the medical unit isolation cells being denied any ability to communicate with their attorneys and loved ones and we simply don’t know.
19. Because the jail is now on lock-down status, I have been notified by numerous COs and Shift Commanders that I am now only permitted to speak with my clients during their one hour of daily recreation time. This policy forces my clients to choose between taking a shower, cleaning their cells, calling their loved ones, and speaking to their attorney. In addition, even if my client foregoes all other options to speak to me in that one precious hour, a full hour is not always sufficient time to discuss everything I need to discuss with a client. This policy has also presented problems when a client’s one hour of recreation time is from midnight to 1am, when a client’s one hour of recreation time falls during I time I am appearing in court over video conference, or when two of my clients have recreation at the same time. On more than one occasion, I have had to prematurely end a phone call because my client’s recreation time had expired and the COs were ordering him to his cell. When this has happens, there is nothing I can do but wait until my client’s next opportunity to resume our conversation, whenever that may be.
20. In order to communicate with an incarcerated client, I take the following steps: (1) look up which housing unit the client is in; (2) wait until after shift change and call that housing unit’s desk; (3) request to speak to my client and provide my phone number to the correctional officer; (4) wait for that client to call me back. About half of the time, my client will not call me, and I will call the housing unit back an hour or so later to ask about the delay. Some correctional officers will tell me my client will be calling soon,
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but most often, they will tell me that I cannot speak to my client until the next one-hour of recreation time, whenever that might be. Recently, attorneys in our office were notified that we now need to make requests to speak to our clients a day in advance, and that our clients will then be provided our phone numbers and call us during their recreation time the following day. To my knowledge, even attorneys who request a phone call a day in advance still often do not hear from their clients the following day.
21. Of course, this phone policy only works if my clients have working PID numbers with which to make calls. Numerous people have recently reported problems with their phone PID numbers, and some have only been able to speak to me by borrowing another person’s PID number. Clients tell me they have complained and filed grievances, but the jail has responded to their complaints with incredulity and slowly if at all. Only when I have been notified and been able to contact the jail or when a conscientious correctional officer has stepped up to advocate for a person has anything been done, and many of my clients have gone weeks without having a working PID number to contact their attorney and loved ones. In addition, people who have used someone else’s PID number because they had no other way to speak to me report being threatened by jail officials that they will be “thrown in the hole” and charged with telephone misuse.
22. Over the past month, I have had numerous conversations with clients detained at the jail and have taken declarations from seven different people detained at the jail. Those I have spoken with have uniformly reported that the jail has failed to provide them with information about what COVID-19 is, how it spreads, and how detained people can protect themselves. It has become clear to me that the jail’s policies have been focused on keeping detainees in the dark, rather than keeping them safe.
23. The jail has also kept the public in the dark. As far as I am aware, the jail has not made a public statement regarding the conditions at the jail and the number of COVID-positive cases since announcing on April 4 that three detained people and one correctional officer had tested positive. Based on reports from people detained at the jail, there currently are well-over a dozen COVID-positive people detained at the jail. There are also many, many more people who are symptomatic, who the jail has refused to test or isolate. Based on the declarations I took, it is clear to me that the jail is actively ignoring and dismissing the serious symptoms of detainees in order to avoid having to quarantine them, test them, and acknowledge the true scale of this outbreak. For example, Declarants 1, 2, and 4, describe being symptomatic, but having their symptoms ignored or downplayed by correctional officers and medical staff for days before finally being moved to the medical unit. Declarant 3 describes how he had to self-identify as the cellmate of another COVID-positive person before his symptoms were taken seriously. The declarations also indicate that requests for hospitalization or even medical attention beyond a temperature scan have been routinely denied. It seems to me the jail is much more concerned with its public image than with the health and safety of my clients.
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24. It has also become clear that the jail has adopted a policy of illegally detaining people for no other reason than that they have tested positive for the Coronavirus. For example, [Declarant #1]’s bond was paid on April 3. But the jail refused to release him until April 16. In response to the Coronavirus pandemic, I filed two bond motions for [Declarant #1], and after those were denied, requested a bond review hearing for a third time. At this third hearing, the Court granted [Declarant #1] a bond of $5,000 with the option of paying ten percent to the Court on April 1. Because the courtroom clerk did not put the ten percent option into the computer system until two days later, [Declarant #1]’s bond could not be posted until April 3. After he was not released on April 3, I called the jail. Jail officials informed me that [Declarant #1] would not be released unless and until someone came to the jail to pick him up and verify that he would be taken to a place where he could quarantine. Because his family is medically vulnerable, however, they could not pick up [Declarant #1] or house him, though they desperately wanted him home. Over the next thirteen days, I spoke with multiple officials at the jail, as did the head of my office, and the jail refused to release [Declarant #1]. The jail also refused to provide a date certain on which [Declarant #1] would be deemed no longer contagious and would be released, thus his illegal detention appeared to be indefinite. I filed an emergency petition for habeas corpus on April 14 in the Prince George’s County Circuit Court. On April 15, I was notified by chambers that the petition would not be heard until April 21. I requested an earlier hearing date, but that request was denied by chambers. On April 16, Deputy County Attorney Joseph Ruddy emailed the Court and me that [Declarant #1] had been released and the habeas petition was moot. Upon his release, [Declarant #1] rode the bus to a friend’s house where he was able to stay. Had he been released on April 3, when he posted his bond and was still symptomatic, he would have sought treatment at a local hospital.
25. As another example, [Declarant #3] was given a bond which he promptly paid on March 31. Unbeknownst to his attorney, however, he was COVID-positive, and so the jail continued to detain him and refused to serve him with his two outstanding warrants. I only became aware of this issue because [Declarant #1] notified me. I spoke to [Declarant #3], notified his attorney, and filed a motion for appropriate relief on his behalf on April 7, which was heard on April 9 after I begged the court to hear me although the motion had yet to be docketed by the Clerk’s Office. The Court ordered the jail to serve him, but it is my understanding that to date, [Declarant #3] has not been served with any paperwork. The Commissioner appears to have held an initial appearance hearing at which [Declarant 3] was not present, and on April 14, the Court held a bond hearing at which he was not permitted to be present. At this time, it is unclear when he may be served or be permitted to be present for a hearing.
26. At this point, I have spent hours on the phone with various employees and officials at the jail, complaining to them about the jail’s conditions, the treatment of my clients, the limited access my clients have to phones and attorney communications, and the illegal detention of COVID-positive individuals. I have also complained to the nurses and
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correctional officers about the deficient medical attention my clients have received. To my knowledge, no responsive actions have been taken.
27. To be clear, I have heard from my clients how kind some correctional officers have been in the face of this crisis. I have also heard from my clients how cruel others have become. Many of these cruelties have been attested to by incarcerated declarants. Whether on 23-and-1 lockdown or in full isolation, my clients are more vulnerable now than ever to abuses of power. While some of them have filed grievances, many have been too afraid of retaliation. Others have had their requests for grievance forms denied by correctional officers. I have also heard that some people put together a collective petition complaining about the conditions at the jail. But to my knowledge, the jail has not responded to this petition.
28. My clients in different housing units report varying and inconsistent practices regarding cleaning, social distancing, personal protective equipment, and sanitation supplies. This suggests to me that the jail does not have a clear, uniform safety protocol or that it is not being followed. I am not aware of any public statements, written or oral, outlining what specific safety policies and procedures have been adopted in response to this pandemic.
29. Given these conditions, I have been working diligently to get as many of my clients released as possible, as soon as possible. I have filed over 20 bond motions in response to the Coronavirus. Throughout this pandemic, I have represented my own clients, as well as some of my colleagues’ clients, in dozens of bond hearings in person and over video conference. In my experience, the District Court has been slow to respond to this crisis, and has been overwhelmed with the number of defense attorneys’ requests for bond hearings.
30. For example, I filed bond motions for three clients on March 16, 2020, in light of the Coronavirus pandemic. On March 19, 2020, the Court held a hearing on those motions without notice to me or the jail, so neither the defendants nor their attorney were present. The Court denied all three of my motions, though I do not know on what basis. On March 20, I filed a second bond motion for each of those three clients. Two of these motions were set for hearings on March 30, and then rescheduled to March 31 so that I could be present, at which point my clients were released by the Court. One of these motions wasn’t set for a hearing until April 1, at which point bond was revised and my client was released. Thus, even for the clients that have been released from the jail, it has taken multiple filings and multiple weeks before the Court held a bond review hearing and granted release.
31. Many of my clients continue to be detained without bond or are awaiting release by the Pretrial Services Agency. For example, one of my clients has the option of release to Pretrial Services. After his arraignment on April 9, I called Pretrial Services to ask why he had not been released to their supervision and provide them with his verified address.
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Pretrial Services informed me that they had never realized the Court had provided the option of release to their supervision, and so had not reviewed his case at all. They then informed me that they would look into his case. I called back on April 15 to follow-up, and Pretrial Services notified me that because this client had since tested positive for COVID-19, Pretrial Services will no longer release him to their supervision. In addition, because this client is currently detained in an isolation cell at the medical unit, I have no way to communicate with him. The jail refuses to let him call me, and today informed me that he will not be able to use the phone until he is moved out of the isolation cell at some unknown time in the future.
32. The Court has ordered Pretrial Services to supervise one of my other clients. This is distinct from merely having the option of release to Pretrial Services, where Pretrial Services has discretion to release someone or not. Despite the Court’s order to Pretrial Services, my client remains in jail because he has a pending case in another county, and thus Pretrial Services refuses to release him. Pretrial Services has informed me that it is their policy not to supervise individuals who have cases pending in other counties, even when ordered to do so by the Court.
33. Pretrial Services has also informed me that because they are so overwhelmed with the number of people the Court has ordered them to supervise, they have had to back-burner all those individuals with merely the “option” of release to Pretrial Services.
34. As another example, I have a client who has sarcoidosis and thus is very medically vulnerable. He is currently detained because he cannot afford to pay at $500 bond. I filed a bond motion for him on April 14. Today, I was notified that his case is not scheduled for a hearing until April 22, more than a week after the motion was filed.
35. To my knowledge, all Covid-19 emergency bond-review motions filed by my office seek either release or a reduction in release conditions. To my knowledge, no Covid-19 emergency bond review motions filed by my office seek to change conditions of confinement at the Prince George’s County Department of Corrections.
36. It has been difficult to take the declarations of my clients. Clients have broken down sobbing on the phone with me. When I read back a declaration to one client, he had to put the phone down and step away because he was so distraught. Another client then picked up the phone, and told me the declarant needed time to compose himself before we could continue reviewing the declaration. The declarant later explained to me that he was in shock hearing his words read back to him, in shock that the nightmare he has been living is a reality.
37. My clients are terrified. I am terrified for them. It is clear to me that there are many more COVID-positive people at the jail than the jail has publicly admitted. It is clear to me that there are many more COVID-positive people at the jail than the jail has tested. It
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is clear to me that the image of security and order is more important to the jail than the safety, health, and bodily integrity of my clients. It is clear to me that my COVIDpositive clients are being treated like animals, that those who are tasked with caring for them are afraid to come anywhere near them, let alone provide them with the medical attention they need. 38. I have had anxious clients before. Pending criminal litigation is anxiety-inducing for anyone. But that is not what my clients fear. My clients are afraid for their lives. They are afraid that they are going to be infected. They are afraid that they are going to be locked away indefinitely, without access to showers or telephones or fresh air, trapped in a room covered in blood, mucus, and feces. They are afraid that they will be denied medical attention. They are afraid that they will die. 39. In the face of these fears, it is difficult to tell a client again and again that the motion I filed is still pending, that they must wait a week or more before they can even have a hearing, that they likely will not even be present for the hearing over the television monitor, and I will have to call them back to tell them what ruling the Court made about the fate of their lives in their absence.
I declare under penalty of perjury that the foregoing is true and correct.
____cg_______________________ Claire Glenn, Esq. Assistant Public Defender 4990 Rhode Island Avenue, Room 345 Hyattsville, MD 20781 (240) 582-4202 claire.glenn@maryland.gov CPF# 1902280002
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EXHIBIT 30

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Declaration of Dr. Jaimie Meyer
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualifications
1. I am Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. I am board certified in Internal Medicine, Infectious Diseases and Addiction Medicine. I completed my residency in Internal Medicine at NY Presbyterian Hospital at Columbia, New York, in 2008. I completed a fellowship in clinical Infectious Diseases at Yale School of Medicine in 2011 and a fellowship in Interdisciplinary HIV Prevention at the Center for Interdisciplinary Research on AIDS in 2012. I hold a Master of Science in Biostatistics and Epidemiology from Yale School of Public Health.
2. I have worked for over a decade on infectious diseases in the context of jails and prisons. From 2008-2016, I served as the Infectious Disease physician for York Correctional Institution in Niantic, Connecticut, which is the only state jail and prison for women in Connecticut. In that capacity, I was responsible for the management of HIV, Hepatitis C, tuberculosis, and other infectious diseases in the facility. Since then, I have maintained a dedicated HIV clinic in the community for patients returning home from prison and jail. For over a decade, I have been continuously funded by the National Institute of Health (“NIH”), industry, and foundations for clinical research on HIV prevention and treatment for people involved in the criminal justice system, including those incarcerated in hardware-secure facilities (jails and prisons) and in the community under supervision (probation and parole). I have served as an expert consultant on infectious diseases and women’s health in jails and prisons for the UN Office on Drugs and Crimes, the Federal Bureau of Prisons, and other entities. I also served as an expert health witness for the US Commission on Civil Rights Special Briefing on Women in Prison.
3. I have written and published extensively on the topics of infectious diseases among people involved in the criminal justice system. My published writings include book chapters and articles in leading peer-reviewed journals (including Lancet HIV, JAMA Internal Medicine, American Journal of Public Health, International Journal of Drug Policy) on issues of prevention, diagnosis, and management of HIV, Hepatitis C, and other infectious diseases among people involved in the criminal justice system.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
5. I was paid $200 per hour for my time reviewing materials and preparing this declaration.
6. I have not testified as an expert at trial or by deposition in the past four years.
7. In addition to my knowledge, training, education, and experience in the field of prison healthcare and infectious diseases, and the resources relied upon by experts in infectious
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diseases and prison health, I also reviewed specifically the Centers for Disease Control and Prevention (“CDC”) guidance on management of COVID-19 in correctional facilities (available at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html), the Bureau of Prisons (BOP) modified operations plan (available at https://www.bop.gov/coronavirus/covid19_status.jsp), the National Commission on Correctional Health Care (“NCCHC”) materials on COVID-19 (available at https://www.ncchc.org/COVID-Resources), and the World Health Organization interim guidance on Preparedness, prevention and control of COVID-19 in prisons and other places of detention (available at http://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-preventionand-control-of-COVID-19-in-prisons.pdf?ua=1).
II. Profile of COVID-19 as an Infectious Disease1
8. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but it is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for another year to the general public. Antiviral medications are currently in testing but not yet FDA-approved, so only available for compassionate use from the manufacturer. People in prison and jail will likely have even less access to these novel health strategies as they become available.
9. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.2 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver
1 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID19, COVID-19 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-youneed-to-know-in-corrections. 2 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html.
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disease, and diabetes, and older age.3 Death in COVID-19 infection is usually due to pneumonia and sepsis. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
10. The care of people who are infected with COVID-19 depends on how seriously they are ill.4 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
11. COVID-19 prevention strategies include containment and mitigation. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Jails and prisons are totally under-resourced to meet the demand for any of these strategies. As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease. Jails and prisons are unable to adequately provide social distancing or meet mitigation recommendations as described below.
12. The time to act is now. Data from other settings demonstrate what happens when detention centers, jails and prisons are unprepared for COVID-19. Recent outbreaks of COVID-19 in jails in Chicago and New York demonstrate how easily the virus enters facilities and rapidly spreads to detainees and staff when community epidemics are widespread, even when the best possible infection preparedness plans are in place.
III. Heightened Risk of Epidemics in Jails and Prisons
13. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, in terms of risk of transmission, exposure, and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
14. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. There are numerous
3 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext 4 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html.
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examples of infectious disease outbreaks in closed detention settings, including tuberculosis, measles, influenza, and HIV.
15. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
16. Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share bathrooms, showers, and other common areas, the opportunities for transmission are even greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. For many in jail or prison, social distancing is a physical impossibility. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and contracting infectious diseases.
17. During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this often is not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
18. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak. Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
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19. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. In addition, if solitary confinement is a carceral facility’s response to COVID-19, people who are ill will be deterred from reporting their symptoms, resulting in their increased risk of severe disease and death and ongoing spread to others.
20. People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.5 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
21. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
22. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
23. As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public. Absenteeism also means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
24. Prisons were designed to contain people, not diseases. When even the most sophisticated hospital systems in this country have been overwhelmed by the COVID-19 pandemic, it will be impossible for prison health systems to contain it. This is especially true when emergency preparedness plans are underdeveloped. These risks have all borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths. Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During
5 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
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the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases. Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
IV. Risk of COVID-19 in the Prince George’s County Correctional Center in Upper Marlboro (“Prince George’s County Jail”)
25. In making my assessment of the danger of COVID-19 in the Prince George’s County Jail, I have reviewed 27 declarations by prisoners there describing the conditions of that facility, particularly as it related to the prevention and treatment of COVID-19.
26. Based on my review of these declarations, my experience working on public health in jails and prisons, and my review of the relevant literature, it is my professional judgment that this facility is dangerously under-equipped and ill-prepared to prevent and manage the spread of COVID-19, which is already spreading throughout the jail.
27. One of the most critical infection control measures in correctional settings is to accurately identify people who are ill and medically isolate them from the general population. The purpose of medical isolation is to ensure that people who are ill with COVID-19 receive adequate medical attention and that transmission of the disease to others is prevented. This is especially important in COVID-19 because the average person with COVID-19 infects 2-3 others including before symptoms develop, and likely more in highly congregate settings. According to the CDC, accurate identification of people with COVID-19 requires regular symptom screening and temperature checks. The CDC recommends that people receive regular symptom screening and temperature checks on entry into a facility and throughout the course of detention when there has been a known exposure to someone who is ill. People who have been exposed to COVID-19 but are not yet ill are supposed to be in quarantine where they can be closely monitored for symptoms. In the Prince George’s County Jail, quarantine is operationalized as a unit-wide 23-hour lockdown. Still, monitoring measures are being implemented in highly problematic ways in the Prince George’s County Jail, according to the 27 declarations I reviewed. a. Prisoners are completely deterred from reporting symptoms and some are “trying to hide their symptoms” because (1) there is a $4 charge for sick call; (2) at times no sick call slips are available; (3) prisoners have heard that conditions in medical isolation are poor; and (4) the disease is highly stigmatized by other inmates and staff. Even for people who can report their symptoms and afford the cost of sick call, there is often a significant delay in obtaining a medical visit. These delays are unacceptable and will result in ongoing transmission within housing units and high risk for complications of COVID-19 among those who are infected, including death. b. While it does seem that temperature checks are being performed at least once daily in housing units where exposure has occurred, the ways in which they are
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being done will only contribute to the spread of disease. For example, inmates describe that the nurse does not change gloves between temperature checks and the thermometer is not cleaned between uses. Some inmates are asked to put their faces up to a slot in the door to undergo temperature screening. Given that this is a virus that can survive for days on inanimate surfaces, there is high likelihood that nurses’ gloves, thermometer covers, and door slots are contaminated and can themselves be a vehicle for transmission from person to person. c. Several declarations also make clear that inmates who feel ill must make multiple and repeated requests before they receive medical attention. If people are not being efficiently flagged for medical evaluation and isolation, they may experience progression of disease while continuing to transmit the virus to others in the general population.
28. According to the CDC, infection prevention for COVID-19 requires no-cost access to soap and water for handwashing and frequent cleaning and disinfecting of high-touch surfaces with products containing bleach or at least 60% alcohol. Prisoners’ declarations reflect that soap is not being provided freely and is only available through the commissary and delivered weekly. Indigent prisoners who are unable to afford soap are reportedly trading food trays to obtain soap, which is completely unacceptable from a health perspective. Prisoners also have minimal access to clean and functioning sinks, even in the medical unit where there are individuals with COVID-19 infection.
29. Prisoners in the Prince George’s County Jail also have restricted access to materials for cleaning and disinfection and are provided only a spray bottle of water and a paper towel. Although some prisoners have reported gaining access to Spray Nine, which is on the EPA’s list of agents effective against COVID-19, it is only intermittently doled out by correctional officers and prisoners must clean without gloves. Disinfecting products are also only allowed to be used, if it all, during the one hour in which quarantined inmates are allowed out of their cells. Inconsistent access to hygiene and disinfection measures will result in widespread infection throughout the facility.
30. Another key infection prevention strategy for COVID-19 involves social distancing, which can be nearly impossible in highly congregate correctional settings, especially when it is not well communicated or enforced. Although prisoners’ declarations suggest every other phone is “taped off” to encourage social distancing, this is essentially meaningless when phones are structurally placed so close together that inmates are still within an arm’s reach of one another, and since phones are not always disinfected between users. With only 1 hour per day to use phones, it may be hard to enforce social distancing since prisoners need to congregate to use this precious resource. While 23hour lockdown and staggered recreation may provide some social distancing measures, they are ineffective for infection prevention and control in the absence of other public health-oriented strategies and may be perceived as punishment. They are particularly problematic when inmates are locked down in poorly ventilated spaces that are shared closely with others, which may contribute to disease transmission from people who are infected with COVID-19 but have not yet developed or reported symptoms. Moreover, one declaration reflects the jail has turned off the air conditioning in its housing unit,
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purportedly to prevent the spread of COVID-19 through recycled air. I am aware of no science that supports this. To the contrary, to prevent the spread of droplet-borne diseases, spaces should be well-ventilated, and air conditioning would promote air flow. In addition, un-air-conditioned spaces are unhealthy in their own right and can exacerbate other health conditions, including asthma. Lockdown can be important from a public health standpoint to enable social distancing during a pandemic but should be used only as a last resort and in a time-limited way (CDC recommends quarantines last no longer than 14 days) that is communicated clearly to the residents. Staggered recreation is an evidence-based strategy for improving social distancing that is recommended by the CDC but is not useful to prevent the spread of disease if recreation is staggered with different individuals each day (i.e. different groups of 10).
31. Once someone develops symptoms suggestive of COVID-19, they require medical isolation. This is distinct from disciplinary isolation because it involves ongoing medical attention and receipt of medical care; it should not be delivered in a way that is or can be perceived as being punitive. A majority (80%) of people with COVID-19 infection will develop mild symptoms, including fever, nausea/vomiting/diarrhea, body aches, fatigue, cough, and headaches, and will be able to recover with supportive care (which involves rest, hydration, and acetaminophen as needed for fevers). Although these symptoms are not technically life-threatening they may still be uncomfortable and require medical management. Yet the declarations I reviewed suggest not even this minimal amount of care is being provided and, instead, prisoners are given Claritin- a decongestant that is entirely useless for COVID-19.
32. During the course of COVID-19 infection, approximately 20% of people will require hospitalization, 5% will require intensive care, and 1-2% will die. Severe disease and complications are more likely in individuals with predisposing risk factors, including age, chronic lung disease, chronic liver disease, chronic kidney disease, pregnancy, and suppressed immune systems. Prisoners in general and those specifically in the Prince George’s County Jail are more likely than people in the general population to experience these conditions and are therefore more likely to experience severe disease and death from COVID-19. Progression of respiratory symptoms in COVID-19 can be extremely rapid, within 24 hours, requiring hospitalization, so people in medical isolation need to be diligently monitored for clinical worsening. Yet the prisoners’ declarations in the Prince George’s County Jail describe a lack of medical attention that is highly concerning and suggests that medical staff do not have the necessary staffing, training, or resources to identify when people require hospitalization. Some nurses are described as focusing exclusively on taking temperatures of COVID-19 patients, while ignoring other medical issues (such as nosebleeds) that may be signs of complicated COVID-19 disease and warrant further evaluation. The delays in access to care that already exist in normal circumstances will only worsen during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected. This may result in preventable deaths and undue harm.
33. Medical isolation units should be hygienic and safe in a way that promotes health. In contrast, the prisoners describe unsafe isolation cells, at times without staff present inside the housing unit, and filthy living conditions, including dried blood and feces on walls
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and floors of isolation cells. Some describe not having access to clean sheets and one described having to pull his used sheets out of a red biohazard bag for reuse. These conditions are not only inhumane but also unhealthy. In addition to spread of COVID19, people in these medical isolation units are therefore at risk of exposure to other diseases, including HIV and Hepatitis C. Medical isolation seems like disciplinary segregation when people feel “like they’re being punished for having COVID-19.” These conditions deter other individuals from reporting symptoms for fear they may end up in isolation.
34. People who test positive for COVID-19 may be medically isolated in a cohort with other confirmed cases, which is appropriate per CDC guidance only when single isolation units are occupied. Importantly, however, isolation should be time-limited and this time limit should be evidence-based and communicated clearly to residents. The practice in the Prince George’s County Jail of isolating COVID-19 patients for a uniform 14 days is inconsistent with CDC guidelines, which recommend that isolation end once at least 7 days have passed since symptoms first appeared, at least 3 days have passed without fever or the need for fever-reducing medications, and respiratory symptoms are improving. Most COVID-19 patients will meet these criteria within 14 days but for those who require more time to meet criteria, there is the risk that they could be prematurely released from isolation to the general population and transmit the disease to others. Isolation end dates need to be clearly communicated to residents to avoid the perception that isolation is punitive.
35. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected. Some individuals’ declarations in the Prince George’s County Jail have reported delays in accessing life-saving treatment, including inhalers for asthma and medications for seizures.
36. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as when health systems in jails and prisons are taxed by COVID-19 outbreaks, as appears to be the case at the Prince George’s County Jail, will result in poor health outcomes. Moreover, mental health conditions are exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation. Anxiety will be especially high when people are unable to voice their concerns, as evidenced by the inmates’ declarations in this case that they have been unable to file grievances because they were denied access to the appropriate forms or because they feared retaliation by the correctional officers.
V. Conclusion and Recommendations
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37. For the reasons above, it is my professional judgment that individuals placed in the Prince George’s County Jail are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness and even death.
38. As such, from a public health perspective, it is my opinion that the Prince George’s County Jail should act immediately to comply with the CDC Guidelines on the management of COVID-19 in correctional facilities.
39. It is also my strong opinion that the jail should evaluate individuals for release in order to reduce the population of the jail, since this is likely the only feasible way for the jail to satisfy both social distancing requirements and adequately monitor and attend to the health of its inmates, who may become rapidly and severely ill with COVID-19.
40. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune system, diabetes, mental health conditions) or older age. They are in even greater danger in these facilities, including a meaningfully higher risk of death. While the CDC suggests that individuals over age 65 are at the highest risk for COVID-19 severity and death, emerging data suggests even individuals over age 50 are at an increased risk for COVID-19 severity and death.
41. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in this facility is a matter of days, not weeks. As of April 15, 2020, the surrounding Prince George County reports 2,409 confirmed COVID-19 cases and 80 related deaths. Declarations from inmates suggest at least 14 people have confirmed COVID-19, and a corrections officer has apparently informed inmates that there are 77 COVID-19 cases at the jail. This is likely a gross underestimate by at least three-fold because of misinformation, underreporting of symptoms, and limited testing opportunities. It is also highly likely that there are already other individuals (both staff and inmates) in the facility who are infected and have not yet developed symptoms. The time to act is now.
42. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting not only those individuals, but the health of the wider community.

I declare under penalty of perjury that the foregoing is true and correct.

April 16, 2020 New Haven, Connecticut

_______________________ Dr. Jaimie Meyer

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EXHIBIT 31

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CURRICULUM VITAE

Name:

Jaimie P. Meyer, M.D., M.S.

Education:

B.A. M.D. M.S.

Dartmouth College (Anthropology) 2000 University of Connecticut 2005 Yale School of Public Health (Biostatistics and Epidemiology) 2014

Career/Academic Appointments:

2005-08

Intern and Resident, Internal Medicine, NY Columbia Presbyterian

Hospital, New York, NY

2008-11

Clinical and Research Fellow, Infectious Diseases, Yale University, New

Haven, CT

2010-12

Postdoctoral Fellow, Center for Interdisciplinary Research on AIDS, Yale

School of Public Health, New Haven, CT

2012-14

Instructor, Infectious Diseases (AIDS Program), Yale School of Medicine,

New Haven, CT

2014-present Assistant Professor, Infectious Diseases (AIDS Program), Yale School of

Medicine, New Haven, CT

2015-present Clinical Assistant Professor, Division of Primary Care/Health Systems in

Nursing, Yale School of Nursing, New Haven, CT

Clinical Positions Held & Other Employment:

1999 2000-01
2010-12
2009-15 Niantic, CT 20152018-

Spanish Medical Interpreter, Boston Children’s Hospital, Boston, MA Research Assistant, UCSF Immunogenetics and Transplantation Laboratory, San Francisco, CA Infectious Diseases Attending (per diem), Hospital of Saint Raphael, New Haven, CT Infectious Diseases Clinician, York Women’s Correctional Institution,
HIV Clinician, Nathan Smith Clinic, New Haven, CT Faculty, Contemporary Management of HIV, Clinical Care Options

Board and other Certifications:

American Board of Internal Medicine, Internal Medicine, 2008, 2018 American Board of Internal Medicine, Infectious Diseases, 2010 American Board of Preventive Medicine, Addiction Medicine, 2018 DATA 2000 DEA X waiver to prescribe Buprenorphine, 2010 REMS Certified implanter and prescriber for Probuphine, 2016

Professional Honors & Recognition

A) International/National/Regional 2018 Selected as Early Career Reviewer, NIH Center for Scientific Review 2017 Doris Duke Charitable Foundation Scholar

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2016 Fellow, American College of Physicians 2016 NIH Health Disparities Loan Repayment Award Competitive Renewal 2016 Selected for AAMC Early Career Women Faculty Professional Development Seminar 2014 NIH Health Disparities Loan Repayment Program Award 2014 NIDA Women & Sex/Gender Differences Junior Investigator Travel Award 2014 International Women's/Children's Health & Gender Working Group Travel Award 2014 Patterson Trust Awards Program in Clinical Research 2013 Thornton Award for Clinical Research 2011 Bristol Myers-Squibb Virology Fellows Award 2006 John N. Loeb Intern Award 2005 Connecticut State Medical Society Award 2005 American Medical Women’s Association Citation 2000 Hannah Croasdale Senior Award, Dartmouth College 1998 Palaeopitus Senior Leadership Society Inductee, Dartmouth College

B) University 2014 Fellow, Women’s Faculty Forum Public Voices Thought Leadership Program

PROFESSIONAL SERVICE

Journal Service: Reviewer 2012-present (In alphabetical order): Addiction Sci and Clin Pract, Addictive Behav Reports, AIDS Care, AIMS Public Health, American Journal on Addictions, American Journal of Epidemiology, American Journal of Public Health, Annals Internal Medicine, BMC Emergency Medicine, BMC Infectious Diseases, BMC Public Health, BMC Women’s Health, Clinical Infectious Diseases, Critical Public Health, Drug and Alcohol Dependence, Drug and Alcohol Review, Epidemiologic Reviews, Eurosurveillance, Health and Justice (Springer Open), International Journal of Drug Policy, International Journal of Prisoner Health, International Journal of STDs and AIDS, International Journal of Women’s Health, JAIDS, JAMA Internal Medicine, Journal of Family Violence, Journal of General Internal Medicine, Journal of Immigrant and Minority Health, Journal of International AIDS Society, Journal of Psychoactive Drugs, Journal of Urban Health, Journal of Women’s Health, Open Forum Infectious Diseases, PLoS ONE, Public Health Reports, University of Wisconsin-Milwaukee Research Growth Initiative, Social Science and Medicine, SpringerPlus, Substance Abuse Treatment Prevention and Policy, Women’s Health Issues, Yale Journal of Biology and Medicine

2019-present Section Editor: Sex and Gender Issues, Journal of the International Association of Providers of AIDS Care (JIAPAC)

Grant Service:

Reviewer:

2020

Doris Duke Charitable Foundation Physician Scientist Fellowship Award

2019

NIH RFA-DA-19-025 HEAL Initiative: Justice Community Opioid

Innovation Network (JCOIN) Clinical Research Centers

Professional Service for Professional Organizations

2016-present Fellow, American College of Physicians

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2016-present Member, AAMC Group on Women in Medicine and Science (GWIMS) 2013-2016 Member, American College of Physicians 2013-present Member, InWomen’s Network, NIDA International Program 2011-present Member, American Medical Women’s Association 2011-present Member, Connecticut Infectious Disease Society 2009-present Member, American Society of Addiction Medicine 2008-present Member, Infectious Disease Society of America 2005-present Member, American Medical Association 2005-2008 Member, New York State Medical Society

Yale University Service

2019-present Core Faculty, Program in Addiction Medicine 2017-present Affiliated Faculty, Arthur Liman Center for Public Interest Law, Yale Law
School 2016-present Leadership Council, Women’s Faculty Forum, Yale University 2015-2016 Steering Committee, US Health and Justice Course, Yale School of
Medicine 2014-present Yale Internal Medicine Traditional Residency Intern Selection Committee 2013-present Women in Medicine at Yale Mentoring Program 2013-present Women in Science at Yale Mentoring Program 2012-present Affiliated Scientist, Center for Interdisciplinary Research on AIDS 2009-2011 Preclinical Clerkship Tutor, Yale School of Medicine

Individual Mentorship

2020

Zoe Sernyak, Yale University: Summer internship

2020

Caroline Wortman, Cornell University: Summer internship

2020

Chevaughn Wellington, Quinnipiac School of Medicine: Capstone Project

Advisor

2019

Callie Ginapp, Yale School of Medicine: Research Mentor

2019

Alissa Haas, Yale School of Public Health (EMD): Research mentor

2019

Emily Bail, Yale School of Nursing: APRN Clinical mentor

2018

Camila Odio, Yale Internal Medicine Residency Program: Research

mentor

2018

Zoe Adams, Yale School of Medicine: Research mentor

2018

Yilu Qin, Yale Primary Care Residency Program, HIV Training Track:

Research mentor

2018

Kaitlin Erickson, Yale School of Nursing: APRN Clinical mentor

2017-2019 Emily Hoff, Yale School of Medicine: Research mentor, Thesis mentor

2017

Lindsay Eysenbach, Yale School of Medicine: Research mentor, Summer

project on Syringe Service Program

2017

Megan Carroll, Yale School of Public Health: M.S. Thesis advisor

(Biostatistics)

2016-2020 Britton Gibson, Yale School of Public Health and Quinnipiac School of

Medicine: Research mentor

2016

Ronnye Rutledge, Yale School of Medicine: MHS Thesis advisor;

awarded IDSA Education and Research Foundation 2015 Medical

Scholarship and Yale School of Medicine Medical Student Research

Fellowship; earned School and Departmental Honors for Thesis

2015

Kelsey Loeliger, Yale Schools of Medicine and Public Health: M.D./Ph.D.

Dissertation committee

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2014
2014
2014 2014 2014 2014

Javier Cepeda, Yale School of Public Health: Ph.D. Research advisor/mentor Audrey Fritzinger, Yale PA Program: Thesis advisor; Received Honors for thesis Cecilia Dumouchel, Yale College: Summer internship Joan Chi-How, Yale School of Medicine: Internship Michelle Fikrig, Oberlin College: Summer internship Madison Breuer, Southern Connecticut State University: Internship

Public Service

2019 2019 2018
2017 2017 2016 2002 1999 1998

Consultant on Medication Assisted Treatment in Prisons, Vermont Department of Corrections, Addiction Health Services Expert Witness for Women in Prison Briefing, U.S. Commission on Civil Rights Consultant for SAMHSA State Targeted Response-Technical Assistance Consortium to address the opioid crisis, American Academy of Addiction Psychiatry Consultant on HIV Care in Prisons, United Nations Office on Drugs and Crime Scientific Advisory Board, HIV Prevention and Treatment in Cis-Gendered Women, Gilead Sciences, Inc. Consultant on Women’s Health, Female Offenders Unit, Federal Bureau of Prisons “Medicine as a Profession” Fellow, Soros Open Society Institute Volunteer Spanish Medical Interpreter, Boston Children’s Hospital Honorary Service Fellow, Costa Rican Humanitarian Foundation

Research Support Ongoing Research Support ACTIVE Investigator Sponsored Award (M161462) PI: Meyer 7/1/2017-6/30/2020 1.8 calendar Gilead Sciences, Inc. $81,151 (FY1 Directs) Delivering HIV Pre-Exposure Prophylaxis to Networks of Justice-Involved Women Description: To leverage risk networks of CJ-involved women as a means of delivering PrEP and to evaluate the acceptability and feasibility of strategically delivering PrEP to network members.

Clinical Scientist Development Award

PI: Meyer 7/1/17-6/30/20 3.0

calendar

Doris Duke Clinical Foundation

$149,959 (FY1 Directs)

Developing and Testing the Effect of a Patient-Centered HIV Prevention Decision Aid

on PrEP uptake for Women with Substance Use in Treatment Settings

Description: 1) To adapt a patient-centered HIV prevention decision aid to women

with substance use entering treatment for substance use disorders. 2) Building on

findings from Aim 1, to pilot test the effect of the adapted decision-aid intervention on

PrEP uptake among women with substance use entering treatment for substance use

disorders.

1 R21 DA042702-01A1

PI: Meyer 8/1/2017–7/31/2020 (NCE) 1.20 calendar

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NIH/NIDA $129,673 (FY1 Directs) Prisons, Drug Injection and the HIV Risk Environment in Kyrgyzstan Description: We propose to generate qualitative data from interviews with prisoners and prison staff and triangulate it with quantitative data from MATLINK within an analytical HIV risk environment framework which aims to: 1. Describe the individual-environment interactions that shape within-prison drug-related HIV risk practices and health expectations post-release; and 2. Measure how within-prison risk and other factors within the prison environment mediate engagement with OAT both within prison and after release.

H79 TI080561

PI: Meyer 11/30/2018–11/29/2023 1.20 calendar

SAMHSA $389,054 (FY1 Directs)

CHANGE: Comprehensive Housing and Addiction Management Network for Greater

New Haven

We will expand and enhance the local implementation of a community infrastructure that

integrates housing, behavioral health, and addiction treatment services for highly

vulnerable populations at-risk for or living with HIV (PARLWH), by virtue of their

involvement in criminal justice (CJ) systems and/or engagement in sex work. The target

population for CHANGE is CJ-involved PARLWH in New Haven, Connecticut who

experience co-occurring homelessness, psychiatric, and substance use disorders.

Pilot Project Award mPI: Willie, Meyer 10/01/19-09/30/20 0.24 calendar

Center for Interdisciplinary Research on AIDS (CIRA)

$29,993

Optimizing PrEP’s Potential in Non-Clinical Settings: Development and Evaluation of a

PrEP Decision Aid for Women Seeking Domestic Violence Services

This Type II hybrid effectiveness-implementation study seeks to adapt an existing PrEP

decision aid to intimate partner violence (IPV)-exposed women seeking domestic

violence services at two major Connecticut service agencies. This study will: provide

support for a PrEP decision aid that addresses the HIV prevention needs of IPV-

exposed women; use implementation science to increase PrEP uptake; include DV

agencies in intervention development and implementation; and improve understanding

of PrEP scale-up by addressing implementation factors in the community settings that

serve IPV-exposed women.

R01 MH121991 mPI: Meyer, Sullivan 01/01/2020-11/30/2024 1.8 calendar NIMH $374,816 (FY1 Directs) Identifying Modifiable Risk and Protective Processes at the Day-Level that Predict HIV Care Outcomes among Women Exposed to Partner Violence The main purpose of this study is to understand how exposure to intimate partner violence (IPV) affects women’s abilities to self-manage their HIV on a daily basis (i.e., adhere to antiretroviral medication), engage in longitudinal HIV care, and achieve and sustain viral suppression. The project aims to build awareness of the IPV-health association and inform strategies/resources to promote resilience.

Completed Research Support

K23 DA033858

PI: Meyer 7/1/2012 – 11/30/2017

9.0 calendar

NIH/NIDA $153,529 (FY1 Directs)

Evaluating and Improving HIV Outcomes in Community-based Women who Interface

with the Criminal Justice System

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The major goal of this project is to inform, adapt and test an intervention that will improve HIV treatment outcomes for community-based women who interface with the criminal justice system, either after release from jail or during community supervision.

Patterson Trust Awards Program in Clinical Research PI: Meyer 1/31/1410/30/15 Disentangling the Effect of Gender on HIV Treatment and Criminal Justice Outcomes

Bristol Myers-Squibb HIV Virology Fellowship Award 6/30/13

PI: Meyer

9/1/11-

NIMH T32 MH020031

PI: Ickovics

7/2/10-6/30/12

Interdisciplinary HIV Prevention Training Program, Yale University School of

Epidemiology and Public Health, Center for Interdisciplinary Research on AIDS

Role: Research Scientist

NIAID T32 AI007517

PI: Quagliarello

6/30/09-7/1/10

Training in Investigative Infectious Disease, Yale University School of Medicine, Section

of Infectious Disease

Role: Research Scientist

Publications Peer-Reviewed Journals Azar M, Springer S, Meyer J, Altice F. A Systematic Review of the Impact of Alcohol Use Disorders on HIV Treatment Outcomes, Adherence to Antiretroviral Therapy and Health Care Utilization. Drug and Alcohol Dependence 2010, 112: 178–193. PMID 20705402. PMCID: PMC2997193
Meyer J, Springer S, Altice F. Substance Abuse, Violence, and HIV in Women: A Literature Review of the SAVA Syndemic. Journal of Women’s Health 2011, 20(7). PMID 21668380. PMCID: PMC3130513
Chen N, Meyer J, Springer S. Advances in the Prevention of Heterosexual Transmission of HIV/AIDS among Women in the United States. Infectious Disease Reports, Special Issue: Women and Infectious Diseases 2011; 3: e6. doi: 10.4081/idr.2011.e6. PMID: 23745166. PMCID: PMC3671603
Meyer J, Chen N, Springer S. HIV Treatment in the Criminal Justice System: Critical Knowledge and Intervention Gaps. AIDS Research and Treatment 2011; 2011:680617. PMID 21776379. PMCID: PMC3137962
Springer S, Spaulding A, Meyer J, Altice F. Public Health Implications for Adequate Transitional Care for HIV-Infected Prisoners: Five Essential Components. Clinical Infectious Disease 2011; 53(5): 469-479. PMID 21844030 PMCID: PMC3156144.
Chen N, Meyer J, Bollinger R, Page K. HIV Testing and Prevention Behaviors among Latinos in Baltimore City. Journal of Immigrant and Minority Health. 2012 Jan 20 (Epub). PMID: 22262410. PMCID: PMC3389229

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Meyer J, Qiu J, Chen N, Larkin G, Altice F. Emergency Department Use by Released Prisoners with HIV: An Observational Longitudinal Study. PLoS ONE 2012; 7(8): e42416. PMID: 22879972 PMCID: 3411742
Meyer J, Qiu J, Chen N, Larkin G, Altice F. Frequent Emergency Department Use among Released Prisoners with HIV: Characterization Including a Novel Multimorbidity Index. Academic Emergency Medicine 13 JAN 2013; 20(1):79-88. PMID: 23570481 PMCID: 3623800.
Meyer J, Wickersham J, Fu J, Brown S, Sullivan T, Springer S, Altice F. Partner Violence and Health among HIV-Infected Jail Detainees. International Journal of Prisoner Health 2013; 9(3): 124-141. DOI: 10.1108/IJPH-03-2013-0011. PMID: 24376468 PMCID: PMC3873166.
Althoff A, Zelenev A, Meyer J, Fu J, Brown S, Vagenas P, Avery A, Cruzado J, Spaulding A, Altice F. Correlates of Retention in HIV Care after Release from Jail: Results from a Multi-site Study. AIDS and Behavior 2013 Oct;17 Suppl 2:156-70. PMID: 23161210. PMCID: 3714328.
Chen N, Meyer J, Avery A, Draine J, Flanigan T, Lincoln T, Spaulding A, Springer S, Altice F. Adherence to HIV Treatment and Care among Previously Homeless Jail Detainees. AIDS Behav. 2013 Oct;17(8):2654-66. doi: 10.1007/s10461-011-0080-2. PMID: 22065234. PMCID: PMC3325326
Williams C, Kim S, Meyer J, Spaulding A, Teixeira P, Avery A, Moore K, Altice F, Simon D, Wickersham J, Murphy-Swallow D, Ouellet L. Gender Differences in Baseline Health, Needs at Release, and Predictors of Care Engagement among HIV-positive Clients Leaving Jail. AIDS and Behavior 2013 Oct;17 Suppl 2:195-202 PMID: 23314801 PMCID: PMC3758427
Chitsaz E, Meyer JP, Krishnan A, Springer SA, Marcus R, Zaller N, Jordan AO, Lincoln T, Flanigan TP, Porterfield J, Altice FL. Contribution of Substance Use Disorders on HIV Treatment Outcomes and Antiretroviral Medication Adherence Among HIV-infected Persons Entering Jail. AIDS and Behavior 2013 Oct;17 Suppl 2:118-27. doi: 10.1007/s10461-013-0506-0 PMID: 23673792. PMCID: PMC3818019
Meyer J, Althoff A, Altice F. Optimizing Care for HIV-infected People who Use Drugs: Evidence-Based Strategies for Overcoming Healthcare Disparities. Clinical Infectious Disease 2013 Nov; 57(9):1309-17. Epub 2013 Jun 23. DOI: 10.1093/cid/cit427. PMID: 23797288. PMCID: PMC3792721
Meyer J, Zelenev A, Wickersham J, Williams C, Teixiera P, Altice F. Gender Disparities in HIV Treatment Outcomes Following Release From Jail: Results From a Multicenter Study. American Journal of Public Health. 2014 Mar; 104(3): 343-41. NIHMS: 581757. PMID: 24432878. PMC3953795.
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Meyer J, Cepeda J, Wu J, Trestman R, Altice F, Springer S. Optimization of HIV Treatment during Incarceration: Viral Suppression at the Prison Gate. JAMA Internal Medicine. 2014 May;174(5):721-9. PMID: 24687044 PMCID: PMC4074594
Meyer J. Capsule Commentary on Pyra et al. Sexual Minority Status and Violence among HIV Infected and At-Risk Women. Journal of General Internal Medicine 2014 May 3 [Epub ahead of print]. DOI: 10.1007/s11606-014-2857-2. PMID: 24793727.
Boyd A, Song D, Meyer J, Altice F. Emergency Department Use among HIV-Infected Released Jail Detainees. J Urban Health. 2014 Oct 21. [Epub ahead of print] PMID: 25331820. PMC4338130
Meyer J, Cepeda J, Springer S, Wu J, Trestman R, Altice F. HIV in people reincarcerated in Connecticut prisons and jails: an observational cohort study. The Lancet HIV 1(2): e77 - e84, November 2014, Early Online Publication, 10 October 2014. doi:10.1016/S2352-3018(14)70022-0. NIHMS ID: 636511. PMID: 25473651 PMCID: PMC4249702
How J, Azar M, Meyer J. Are Nectarines to Blame? A Case Report and Literature Review of Spontaneous Bacterial Peritonitis Due to Listeria monocytogenes. Connecticut Medicine January 2015 79(1): 31-36. NIHMSID #65446; PMCID: PMC4423821.
Meyer, J. P., Moghimi, Y., Marcus, R., Lim, J. K., Litwin, A.H., and Altice, F. L. Evidence-Based Interventions to Enhance Assessment, Treatment, and Adherence in the Chronic Hepatitis C Care Continuum. Int J Drug Policy. 2015 May 17. pii: S09553959(15)00135-8. doi:10.1016/j.drugpo.2015.05.002 NIHMS692116. PMID:26077144
Meyer J, Cepeda J, Taxman F, Altice F. Sex-Related Disparities in Criminal Justice and HIV Treatment Outcomes: A Retrospective Cohort Study of HIV-infected Inmates. American Journal of Public Health: 2015 Sep;105(9):1901-10. doi: 10.2105/AJPH.2015.302687. Epub 2015 Jul 16. NIHMS677862. PMID: 26180958. PMC4529767
Meyer J, Womack J, Gibson B. Beyond the Pap Smear: Gender-Responsive HIV Care for Women. Yale J Biol Med (Focus Issue: Sex and Gender Health). 2016 Jun; 89(2): 193–203. PMCID: PMC4918880
Bernardo R, Streiter S, Tiberio P, Rodwin B, Mohareb A, Ogbuagu O, Emu B, Meyer J. Photo Quiz: A Peripheral Blood Smear in a Ugandan Refugee. Journal of Clinical Microbiology. 2017 December 55(12): 3313-3314.
Peasant C, Sullivan T, Weiss N, Martinez I, Meyer J. Beyond the Syndemic: Condom Negotiation and Use among Women Experiencing Partner Violence. AIDS Care. 2016 Sep 2:1-8. PMID: 27590004. PMCID: PMC5291821.
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Peasant C, Montanero E, Kershaw T, Parra G, Weiss N, Meyer J, Murphy J, Ritchwood T, Sullivan T. An Event-Level Examination of Successful Condom Negotiation Strategies among Young Women. J Health Psychology: 2017 Jan 1:1359105317690598. doi: 10.1177/1359105317690598. [Epub ahead of print] PMID: 28810400. NIHMS 842344. PMC5561508.
Peasant, C., Sullivan, T.P., Ritchwood, T.D., Parra, G.R., Weiss, N.H., Meyer, J.P. & Murphy, J.G. Words Can Hurt: The effects of physical and psychological partner violence on condom negotiation and condom use among college women in non-casual sexual partnerships. Women & Health: 2017 Apr 12:1-15. PMID: 28402194.
Meyer J, Muthulingham D, El-Bassel N, Altice F. Leveraging the U.S. Criminal Justice System to Access Women for HIV Interventions. AIDS and Behavior 2017 Dec;21(12):3527-3548. DOI: 10.1007/s10461-017-1778-6. NIHMSID 878661. PMID: 28534199. PMC5699977.
Shrestha R, Karki P, Altice F, Huedo-Medina T, Meyer J, Madden L, Copenhaver M. Correlates of willingness to initiate pre-exposure prophylaxis and the likelihood of practicing safer drug- and sex-related risk behaviors among high-risk drug users on methadone treatment. Drug and Alcohol Dependence: 2017 Apr 1;173:107-116. doi: 10.1016/j.drugalcdep.2016.12.023. Epub 2017 Feb 2. PMID: 28214391. PMCID: PMC5366273.
Wickersham J, Gibson B, Bazazi A, Pillai V, Pedersen C, Meyer J, El-Bassel N, Mayer K, Kamarulzaman A, Altice F. Prevalence of HIV and sexually transmitted infections among cisgender and transgender women sex workers in greater Kuala Lumpur, Malaysia: Results from a respondent-driven sampling study. Sex Transm Dis. 2017 Nov;44(11):663-670. PMID: 28708696. NIHMSID 894660. PMC5636657.
Vasquez L, Malinis M, Meyer J. Emerging Role of Actinomyces meyeri in Brain Abscesses: A Case Report and Literature Review. IDCases. 2017 Jul 20;10:26-29. doi: 10.1016/j.idcr.2017.07.007. eCollection 2017. PMID: 28831384. PMCID: PMC5554978.
Azbel L, Wegman M, Polonsky M, Bachireddy C, Meyer J, Sumskaya N, Kurmanalieva A, Dvoriak S, Altice F. Drug injection within prison in Kyrgyzstan: elevated HIV risk and implications for scaling up opioid agonist treatments. 2018 Sep 10;14(3):175-187. doi: 10.1108/IJPH-03-2017-0016. PMID: 30274558. NIHMS951165. PMCID: PMC6447033
Loeliger K, Altice F, Desai M, Ciarleglio M, Gallagher C, Meyer J. Predictors of Linkage to HIV Care and Viral Suppression Levels Following Release from Jails and Prisons: A Retrospective Cohort Study. Lancet HIV 2018 Feb;5(2):e96-e106. DOI: http://dx.doi.org/10.1016/S2352-3018(17)30209-6. PMID: 29191440 NIHMSID 924557. PMC5807129.
Hoff E, Marcus R, Bojko M, Makarenko I, Mazhnaya A, Altice F, Meyer J. The effects of opioid-agonist treatments on HIV risk and social stability: A mixed methods study of
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women with opioid use disorder in Ukraine. J Substance Abuse Treatment 83 (2017) 36–44. NIHMS 914022. PMC5726590.
Harada K, Heaton H., Chen J., Vazquez M, Meyer J. Herpes zoster vaccine-associated Primary Varicella Infection in an Immunocompetent Host: Case Report and Literature Review. BMJ Case Rep. 2017 Aug 22;2017. pii: bcr-2017-221166. PMID: 28830902. NIHMS 913803. PMC5624100.
Rutledge R, Madden L, Ogbuagu O, Meyer J. HIV Risk Perception and Eligibility for Pre-Exposure Prophylaxis in Women Involved in the Criminal Justice System. AIDS Care: 2018 Mar 11:1-8. doi.org/10.1080/09540121.2018.1447079. PMID: 29527934. NIHMSID 1502805 PMC6085161
Brinkley-Rubenstein L, Dauria E, Tolou-Shams M, Christopoulous K, Chan P, Beckwith C, Parker S, Meyer J. The Path to Implementation of HIV Pre-exposure Prophylaxis for People Involved in Criminal Justice Systems. Curr HIV/AIDS Rep. 2018 Apr;15(2):9395. doi: 10.1007/s11904-018-0389-9. https://doi.org/10.1007/s11904-018-0389-9. PMID: 29516265. PMC5884709
Meyer J, Marcus R, Nowakowski E, Glass S, Canney T, Copenhaver M, Altice F. PLUS PINK: Adaptation of an evidence-based HIV risk reduction intervention for justiceinvolved women in the community. AIDS Education and Prevention: Under revision.
Odio C, Carroll M, Glass S, Bauman A, Taxman F, Meyer J. Evaluating Concurrent Validity of Criminal Justice and Clinical Assessments among Women on Probation. Health and Justice, Special Issue: Complex Populations (2018) 6: 7. https://doi.org/10.1186/s40352-018-0065-6. PMID: 29627964 PMCID: PMC5889765
Loeliger K, Altice F, Ciarleglio M, Rich K, Chandra D, Gallagher C, Desai M, Meyer J. An Observational Study of All-cause Mortality among People with HIV Released from an Integrated System of Jails and Prisons, 2007-2014. The Lancet HIV 2018: Published Online September 6, 2018. http://dx.doi.org/10.1016/S2352-3018(18)30175-9. Volume 5, Issue 11, November 2018, Pages e617-e628. PMID: 30197101. NIHMS 1506381. PMC6279524
Loeliger K, Meyer J, Desai M, Ciarleglio M, Gallagher C, Altice F. Sustained Retention in HIV Care and Viral Suppression over Three Years Following Release from Jails and Prisons: A Retrospective Cohort Study. PLoS Medicine 2018 Oct 9;15(10):e1002667. PMID: 30300351 PMCID: PMC6177126
Ranjit Y, Azbel L, Krishnan A, Altice F, Meyer J. Evaluation of HIV risk and outcomes in a nationally representative sample of incarcerated women in Azerbaijan, Kyrgyzstan, and Ukraine. AIDS Care: Published online 31 Jan 2019. https://doi.org/10.1080/09540121.2019.1573969 NIHMS1519524. PMID: 30701981.
Meyer J, Isaacs K, El-Shahawy O, Burlew K, Wechsberg W. Research on Women with Substance Use Disorders: Reviewing Progress and Developing a Research and
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Implementation Roadmap. Drug and Alcohol Dependence 2019 Apr 1;197:158-163. Epub 21-FEB-2019. Doi: 10.1016/j.drugalcdep.2019.01.017 NIHMSID1013474. PMID: 30826625. PMC6440852
Rhodes T, Azbel L, Lancaster K, Meyer J. The becoming-methadone-body. On the onto-politics of health intervention translations. Sociology of Health & Illness: 2019 Jul 16. doi: 10.1111/1467-9566.12978. PMID: 31310008.
Meyer J. The Sustained Harmful Health Effects of Incarceration for Women Living with HIV. J Womens Health (Larchmt). 2019 Aug;28(8):1017-1018. doi: 10.1089/jwh.2019.7940. Epub 2019 Jul 29. PMID: 31355697.
Olson B, Vincent W, Meyer J, Kershaw T, Sikkema K, Heckman T, Hansen N. Depressive Symptoms, Physical Symptoms, and Health-Related Quality of Life among Older Adults with HIV. Qual Life Res. 2019 Aug 24. doi: 10.1007/s11136-019-02271-0. PMID: 31446515.
Hoff E, Adams Z, Dasgupta A, Goddard D, Sheth S, Meyer J. Reproductive Health Justice and Autonomy: A systematic review of pregnancy planning intentions, needs, and interventions among women involved in US criminal justice systems. J Women’s Health: Under revision.
Qin L, Price C, Puglisi L, Rutledge R, Madden L, Meyer J. Women’s Decision-Making about PrEP for HIV Prevention in Drug Treatment Contexts. J Int Assoc Provid AIDS Care. 2020;19:2325958219900091. PMID: 31918605
Hoff E, Rutledge R, Gibson B, Price C, Gallagher C, Maurer K, Meyer J. PrEP for Women across the Criminal Justice Continuum in Connecticut: Implications for Policy and Practice. J Corr Healthcare: In press. NIHMS 1573821
Meyer J, Franco-Paredes C, Parmar P, Yasin F, Gartland M. COVID-19 and the Coming Epidemic in U.S. Immigration Detention Centers. Lancet Infect Dis 2020 Published Online April 15, 2020 https://doi.org/10.1016/S1473-3099(20)30295-4.
Manuscripts in Submission Muthulingham D, Clemons T, Marcus R, Meyer J, Yonkers K. Pregnancy as Peril for Women with Addiction: Public Health, not Punishment. AJPH: Under review.
Rich K, Loeliger K, Chandra D, Muthulingam D, Althoff K, Gallagher C, Meyer J, Altice F. Elevated Mortality Risk after Release from Prisons and Jails: Implications for Targeting At-Risk Persons. JAIDS: Under review.
Rich K, Eysenbach L, Joslin S, Marcus R, Brothers S, Meyer J, Altice F. Evaluation of a “One-Stop-Shop”: An innovative treatment and prevention program that integrates harm reduction and primary care services for people who inject drugs. J Urban Health: Under review.
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Barber D, Kempner T, Pasalar S, Borne D, Eysenbach L, Quinn E, Rajabiun S, Meyer J. Effects of a Multisite Medical Home Intervention on Emergency Department Use among Homeless People with HIV. J Healthcare Poor and Underserved: Under review.
Manuscripts in Preparation
Meyer J, Flash C, Gonzalez N, Pan A, Yuan Y, Rajabiun S. The Intersecting Effect of Gender and Race on Housing and HIV Outcomes in a Multisite Medical Home Project. To submit to AJPH.
Culbert G, Azbel L, Bachireddy C, Kurmanalieva A, Rhodes T, Altice F, Meyer J. A Qualitative Study of Diphenhydramine Injecting in Kyrgyz Prisons and Implications for Harm Reduction Efforts. To submit to Harm Reduction J.
Hoff E, Adams Z, Hass A, Dasgupta A, Goddard D, Sheth S, Meyer J. Reproductive Health Needs of Women at Risk of HIV in Connecticut. To submit to J Women’s Health.
Meyer J, Shrestha R, Shenoi S, Wickersham J, Altice F. Potential and Challenges of Same Day PrEP for Key Populations. To submit to Lancet HIV.
Meyer J, Price CR, Tracey D, Madden L, Elwyn G, Altice F. Development and Efficacy of a PrEP Decision Aid for Women in Drug Treatment. To submit to JSAT.
Book Chapters Meyer J, Altice F. HIV in Injection and Other Drug Users. Somesh Gupta, Bhushan Kumar, eds. Sexually Transmitted Infections 2nd ed. New Delhi, India: Elsevier, 2012: 1061-80. ISBN 978-81-312-2809-8.
Meyer J, Altice F. Chapter 47, Treatment of Addictions: Transition to the Community. Robert L. Trestman, Kenneth L. Appelbaum, Jeffrey L. Metzner, eds. Oxford Textbook of Correctional Psychiatry (Winner of the 2016 Guttmacher Award). Oxford University Press 2015. ISBN 9780199360574.
Mohareb A, Tiberio P, Mandimika C, Muthulingam D, Meyer J. Infectious Diseases in Underserved Populations. Onyema Ogbuagu, Gerald Friedland, Merceditas Villanueva, Marjorie Golden, eds. Current Diagnosis and Treatment- Infectious Diseases. McGrawHill Medical 2016.
Shrestha R, McCoy-Redd B, Meyer J. Pre-Exposure Prophylaxis (PrEP) for People Who Inject Drugs (PWID). Brianna Norton, Ed. The Opioid Epidemic and Infectious Diseases. Elsevier 2019.
Other Publications and Reports Paul J (maiden surname). Bullous Pemphigoid in a Patient with Psoriasis and Possible Drug Reaction. Connecticut Medicine 2004 Nov-Dec; 68(10):611-5.
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Meyer J for United Nations Office on Drugs and Crime. HIV and AIDS in Places of Detention. A toolkit for policymakers, programme managers, prison officers, and health care providers in prison settings. Vienna, Austria.
Other Media Communications Gender differences in the treatment outcomes of HIV-infected jail detainees. Outbreak News this Week, WTAN 1340 Clearwater. Interviewed by Robert Herriman [radio] Tampa, Florida, February 8, 2014.
Caring for Justice-Involved Women. The Fortune Society Reentry Education Project Detailing Kit. New York City Department of Health and Mental Hygiene. October 2014.
“Safe” Sex with IUDs Is Not Safe Enough. Ms. Magazine Online. Posted December 8, 2014. http://msmagazine.com/blog/2014/12/08/safe-sex-with-iuds-is-not-safe-enough/
Women’s Health Behind Bars- Not so Black and Orange. Huffington Post. Posted December 18, 2014. http://www.huffingtonpost.com/jaimie-meyer/womens-healthbehind-bars-not-so-black-and-orange_b_6308892.html
Opioid use in women is not just ‘a fetus problem’. Boston Globe. Posted February 19, 2015. http://www.bostonglobe.com/opinion/2015/02/19/opioid-use-women-not-justfetus-problem/8tTFfEtn4mOJ1K75rxEXPI/story.html
Distinct Challenges Affect Women’s HIV Treatment Outcomes After Jail. NIDA Notes. Posted May 12, 2015. http://www.drugabuse.gov/news-events/nidanotes/2015/05/distinct-challenges-affect-womens-hiv-treatment-outcomes-after-jail
Caring for the dying, behind bars. Boston Globe. Posted online May 21, 2015; in print May 24, 2015. http://www.bostonglobe.com/opinion/2015/05/21/caring-for-dyinginmates/WNispkkTY8MoI6zYP8tSRO/story.html
Video abstract. AJPH Talks. Posted online July 28, 2015. http://ajphtalks.blogspot.com/
Invited Conference Presentations & Published Abstracts Adherence to HIV treatment and care among previously homeless jail detainees. IAPAC HIV Treatment and Adherence Conference. Miami, Florida. May 2011.
Emergency Department Use by Released Prisoners with HIV. Connecticut Infectious Disease Society Annual Symposium. Orange, Connecticut. May 2011.
Effects of Intimate Partner Violence on HIV and Substance Abuse in Released Jail Detainees. 5th Academic and Health Policy Conference on Correctional Health. Atlanta, Georgia. March 2012.
Frequent Emergency Department Use among Released Prisoners with HIV: Characterization Including a Novel Multimorbidity Index. IDWeek: Infectious Diseases Society of America Annual Meeting. San Diego, California. October 2012.
Correlates of Retention in HIV Care after Release from Jail: Results from a Multi-site Study. IDWeek: Infectious Diseases Society of America Annual Meeting. San Diego, California. October 2012.
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Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study. Conference on Retroviruses and Opportunistic Infections (CROI). Atlanta, Georgia. March 2013.
Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study. Connecticut Infectious Disease Society Annual Meeting. Orange, Connecticut. May 2013.
Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study. HIV Intervention and Implementation Science Meeting. Bethesda, Maryland. September 2013.
Longitudinal Treatment Outcomes in HIV-Infected Prisoners and Influence of ReIncarceration. Conference on Retroviruses and Opportunistic Infections (CROI). Boston, Massachusetts. March 2014.
Longitudinal Treatment Outcomes in HIV-Infected Prisoners and Influence of ReIncarceration. Connecticut Infectious Disease Society Annual Meeting. Orange, Connecticut. May 2014.
Gender Differences in HIV and Criminal Justice Outcomes. College on Problems in Drug Dependence (CPDD). San Juan, Puerto Rico. June 2014.
Gender Differences in HIV and Criminal Justice Outcomes. International Women's and Children's Health and Gender Working Group. San Juan, Puerto Rico. June 2014.
Violence, Substance Use, and Sexual Risk among College Women. International Women's and Children's Health and Gender Working Group. Phoenix, Arizona. June 2015.
Evidence-Based Interventions to Enhance Assessment, Treatment, and Adherence in the Chronic Hepatitis C Care Continuum. International Harm Reduction Conference. Kuala Lumpur, Malaysia. October 2015.
Beyond the Syndemic: Condom Negotiation and Use among Women Experiencing Partner Violence (Oral presentation). CDC National HIV Prevention Conference. Atlanta, Georgia. December 2015.
An Event-level Examination of Successful Condom Negotiation Strategies among College Women. International Women's and Children's Health and Gender Working Group. Palm Springs, California. June 2016.
Where rubbers meet the road: HIV risk reduction for women on probation (Oral presentation). 2017 Annual Meeting of the Society for Applied Anthropology. Santa Fe, New Mexico. April 2017.
A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine. International Women's and Children's Health and Gender Working Group. Montreal, Canada. June 2017.
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Assessing Receptiveness to and Eligibility for PrEP in Criminal Justice-Involved Women. International Women's and Children's Health and Gender Working Group. Montreal, Canada. June 2017.
A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine. NIDA International Forum. Montreal, Canada. June 2017.
Late breaker: Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons. International AIDS Society (IAS) Meeting. Paris, France. July 2017.
Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons (Oral presentation). IDWeek: Annual Meeting of Infectious Diseases Society of America. San Diego, CA. October 2017.
The New Haven syringe services program. 2017 Connecticut Public Health Association Annual Conference. Plantsville, CT. October 2017.
Assessing Concurrent Validity of Criminogenic and Health Risk Instruments among Women on Probation in Connecticut. 11th Academic and Health Policy on Conference on Correctional Health. Houston, TX. March 2018.
From prison’s gate to death’s door: Survival analysis of released prisoners with HIV. 2018 Conference on Retroviruses and Opportunistic Infections (CROI). Boston, MA. March 2018.
HIV and Drug Use among Women in Prison in Azerbaijan, Kyrgyzstan and Ukraine. NIDA International. San Diego, CA. June 2018.
Methadone Maintenance Therapy Uptake, Retention, and Linkage for People who Inject Drugs Transitioning From Prison to the Community in Kyrgyzstan: Evaluation of a National Program. 22nd International AIDS Conference. Amsterdam, Netherlands. 2327 July 2018.
HIV risk perceptions and risk reduction strategies among prisoners in Kyrgyzstan: a qualitative study. 22nd International AIDS Conference. Amsterdam, Netherlands. 23-27 July 2018.
Service needs and access to care among participants in the New Haven Syringe Services Program (SA-15). 12th National Harm Reduction Conference. New Orleans, LA. October 2018.
Oral presentation: New Haven Syringe Service Program: A model of integrated harm reduction and health care services. American Public Health Association (APHA) Annual Meeting. San Diego, California. November 2018.
PrEP Eligibility and HIV Risk Perception for Women across the Criminal Justice Continuum in Connecticut. 12th Academic and Health Policy on Conference on Correctional Health. Las Vegas, Nevada. March 2019.
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Released to Die: Elevated Mortality in People with HIV after Incarceration. 2019 Conference on Retroviruses and Opportunistic Infections (CROI). Seattle, Washington. March 2019.
Impact of Trauma and Substance Abuse on HIV PrEP Outcomes among Women in Criminal Justice Systems. Symposium: “Partner Violence: Intersected with or Predictive of Substance Use and Health Problems among Women.” Behaviors across Diverse Populations: Innovations in Science and Practice, APA Collaborative Perspectives on Addiction Annual Meeting. Providence, Rhode Island. April 2019.
Uniquely successful implementation of methadone treatment in a women’s prison in Kyrgyzstan. 11th International Women’s and Children’s Health and Gender (InWomen’s) Group. San Antonio, Texas. June 2019.
Diphenhydramine Injection in Kyrgyz Prisons: A Qualitative Study Of A High-Risk Behavior With Implications For Harm Reduction. 2019 NIDA International Forum. San Antonio, Texas. June 2019.
Decision-Making about HIV Prevention among Women in Drug Treatment: Is PrEP Contextually Relevant? 14th International Conference on HIV Treatment and Prevention Adherence. Miami, Florida. June 2019.
Punitive approaches to pregnant women with opioid use disorder: Impact on health care utilization, outcomes and ethical implications. CPDD 81st Annual Scientific Meeting. San Antonio, Texas. June 2019.
How does methadone treatment travel? On the ‘becoming-methadone-body’ of Kyrgyzstan prisons. Harm Reduction International. Porto, Portugal. May 2019.
Effects of a Multisite Medical Home Intervention on Emergency Department Use among Unstably Housed People with Human Immunodeficiency Virus. Society for Academic Emergency Medicine (SAEM) New England Regional Meeting (NERDS). Worcester, Massachusetts. March 2019.
Preliminary Findings from a Novel PrEP Demonstration Project for Women Involved in Criminal Justice Systems and Members of their Risk Networks. 37th Annual Connecticut Infectious Disease Society Conference. New Haven, Connecticut. May 2019.
Decision-Making about HIV Prevention among Women in Drug Treatment: Is PrEP Contextually Relevant? American College of Physicians (ACP) Connecticut Chapter Scientific Meeting. Hartford, Connecticut. October 2019.
Oral presentation: Decision-Making about HIV Prevention among Women in Drug Treatment: Is PrEP Contextually Relevant? SGIM New England Regional Meeting. Boston, Massachusetts. November 2019.
Workshop presentation: Treatment of Women’s Substance Use Disorders and HIV Prevention During and Following Incarceration. Association for Justice-Involved Female Organizations Conference 2019. Atlanta, Georgia. December 2019.
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Oral presentation: Can an interactive aid modify decisional preference for HIV preexposure prophylaxis (PrEP) among women seeking domestic violence services? description of a novel collaborative program and preliminary findings. National Conference on Health and Domestic Violence (NCHDV). Chicago, Illinois. March 2020.
Oral presentation: A Novel PrEP Demonstration Project for Justice-Involved Women and Members of their Risk Networks. 13th Academic and Health Policy Conference on Correctional Health. Raleigh, North Carolina. April 2020.
Impact of Motherhood Identity on Women’s Substance Use and Engagement in Treatment Across the Lifespan. International Women’s and Children’s Health and Gender (InWomen’s) Group. Hollywood, Florida. June 2020.
Invited Lectures/Seminars Yale School of Medicine Affiliated “HIV 101”: Yale Affiliated Hospital Program, Greenwich Hospital Internal Medicine Residency Conference. March 2011.
“Clostridium Difficile”: Yale Affiliated Hospital Program, Greenwich Hospital Internal Medicine Residency Conference. April 2013.
“Community-Acquired Infections.” Student Microbiology Workshop, Yale University School of Medicine. September 2013.
“Hospital Associated Infections.” Student Microbiology Workshop, Yale University School of Medicine. September 2014.
“Microbiology of the Central Nervous System.” Student Microbiology Seminar. Yale University School of Medicine, Physician Associate Program. October 2014.
“Fever of Unknown Origin”: Yale Affiliated Hospital Program, Greenwich Hospital Grand Rounds. January 2015.
“HIV and Women”: Yale Affiliated Hospital Program, Greenwich Hospital Grand Rounds. May 2015.
“Clinical Care of HIV+ Women.” Nathan Smith Clinic Lecture Series. May 2015.
“Implicit Bias and incarceration.” Yale School of Medicine Pre-clinical clerkship seminar. September 2015.
Incarceration and Health Disparities.” US Health and Justice course, Yale School of Medicine, Physician Assistant Program, and Yale School of Nursing. November 2015.
“Fever of Unknown Origin”: Yale Affiliated Hospital Program, Danbury Hospital Teaching Rounds. January 2016.
“Management of Substance Use Disorders.” Yale Affiliated Hospital Program, Greenwich Hospital Teaching Rounds. February 2016.
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“Management of Substance Use Disorders.” Yale Affiliated Hospital Program, Bridgeport Hospital Resident Teaching Rounds. June 2016.
“Clostridium Difficile Infection.” Yale Affiliated Hospital Program, Norwalk Hospital Resident Conference. October 2016.
“Management of Substance Use Disorders.” Yale Affiliated Hospital Program, Bridgeport Hospital Resident Teaching Rounds. November 2016.
“Mass Incarceration: Film and Panel Discussion.” Yale Department of Psychiatry, Psychiatry and Film Series. December 2016.
“HIV 101.” Yale Affiliated Hospital Program, Bridgeport Hospital Noon Conference. May 2017.
“HIV in the Criminal Justice System.” Yale Affiliated Hospital Program, Danbury Hospital Noon Conference. June 2017.
“Management of Substance Use Disorders.” Yale Affiliated Hospital Program, Norwalk Hospital Teaching Rounds. October 2017.
“Management of Substance Use Disorders.” Yale Affiliated Hospital Program, Bridgeport Hospital Noon Conference. March 2018.
“HIV prevention for justice-involved women.” Addiction Medicine Grand Rounds. May 2018.
“Diagnosis and Management of Urinary Tract Infections.” Yale Affiliated Hospital Program, Norwalk Hospital Teaching Rounds. November 2018.
“Bacteremia.” Yale Medicine Residency Program Resident Noon Conference. March 2019.
“Clostridium Difficile.” Yale Affiliated Hospital Program, Norwalk Hospital Teaching Rounds. October 2019.
Invited small group facilitator. “Taking a Substance Use History.” Session delivered as a required component of the Interprofessional Longitudinal Clinical Experience (ILCE) course delivered to all first-year Yale medical, nursing and PA students. Yale School of Nursing. November 1, 2019.
Non-Yale School of Medicine Affiliated “HIV and Addiction”: Rhode Island Chapter of the Association of Nurses in AIDS Care, 7th Annual Education Day. September 2010.
“Incarceration as Opportunity: Prisoner Health and Health Interventions”: Yale College Class of 1960 Criminal Justice Symposium. May 2013.
“Trends and obstacles associated with healthcare for incarcerated or recently incarcerated women.” Arthur Liman Public Interest Program, Yale Law School. October 2015.
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“Incarceration as Opportunity: Prisoner Health and Health Interventions.” New England AIDS Education Training Center, Dartmouth Geisel School of Medicine. April 2016. “Trends in HIV Prevention: Integration of Biomedical and Behavioral Approaches.” Connecticut Advanced Practice Registered Nurse Society Annual Meeting. April 2016. “Topics in Infectious Diseases.” Evolutionary Medicine course, Frank H. Netter School of Medicine, Quinnipiac University. October 2016. “Optimizing the HIV Care Continuum for People Who Use Drugs: Strategies to Address Health Disparities.” Clinical Directors Network Webinar. January 2017. “HIV prevention for justice-involved women.” Frank H. Netter School of Medicine Faculty Seminar Series. March 2018. Plenary: “Intersection of the HIV and Opioid Epidemics.” CCO Annual HIV and Hepatitis Symposium: Regional Workshops and Annual Update 2018. Washington, DC. April 2018. “HIV prevention and treatment for women involved in criminal justice systems.” CT HIV/AIDS Identification and Referral task force (CHAIR), Center for Interdisciplinary Research on AIDS (CIRA). Yale School of Public Health. May 2018. Discussant: “Research on Women who Use Drugs: Knowledge and Implementation Gaps and A Proposed Research Agenda.” Workshop on Women in Addictions Ten Years On, College of Problems on Drug Dependence. San Diego, CA. June 2018. “PrEP Awareness among Special Populations of Women and People who Use Drugs.” Clinical Directors Network Webinar. October 2018. Panelist and Expert Witness: “An Analysis of Women’s Health, Personal Dignity and Sexual Abuse in the US Prison System.” US Commission on Civil Rights, Briefing on Women in Prison: Seeking Justice Behind Bars. Washington, DC. February 2019. Faculty: “A Grassroots Approach to Weed out HIV and HCV in Special OUD Populations” (Live Webcast). CME Outfitters. September 2019. “PrEP in Special Populations: PrEP in People who Inject Drugs.” New England AIDS Education Training Center Annual Primary Care Conference. Hartford, CT. March 2020.
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the recommendation to avoid close contact and remain at least six feet

apart from other persons.

iii. Even with social distancing guidelines in place in our communities

nationwide to reduce the rate of viral spread, the rate of COVID-19

infections has risen rapidly across the nation and is accompanied by

an alarming mortality rate. Containing this vims has been difficult in the

community and it is almost impossible in correctional health settings given

•

the congregate environment.

•

1v. Social distancing is near impossible in a correctional health environment

as human movement into, out ofand within correctional facilities is

frequent and essential to provide adequate staffing of the facility, food and

hydration for inmates, clean spaces, and attention to inmate's legal and

medical needs. Jails over prisons, in particular, have high inmate turnover rates related to arrest and detainment. 10

v. There are many repo1ts from inmates, including I5 17, 2I1, 10, I8i11, 2I

,10, BunchDecl., 10, 25 �7, 27110 that indicate policies or conditions in

the Prince George's Countyjail facility either deter or do not allow for

social distancing.

a. Inmates are provided telephones that are spaced less than six feet

apart. Telephones should ideally he spaced greater than six feet

apart to encourage social distancing, especially ifinmates are

restricted lo using the phone to only one hour daily.

b. Inmates in the housing unit are repo1ted to he standing within six

feet of each other when waiting in line for their medications. Many

correctional health facilities have worked to tl'ansition to KOP

(keep-on-person) policy for medications to avoid this issue, and

this should be encouraged.

c. Housing units are seemingly filled to capacity and inmates report

shor. t distances between cells (less than six feet) and that it is nearly

impossible to remain more than six feet from other inmates. . Most

inmates have cellmates and beds are within six feet from each

other. When beds are close together, it is recommended that

inmates sleep foot to head, head to foot.

d. Within the medical unit, inmates are "unable to remain six feet

apart from the other inmates," giv.en limited space.

C. Inmates' high-risk status. Inmates are higher risk at baseline than the general population for having more severe complications from COVID-19 because they are disproportionately more likely to be afflicted with medical chronic conditions, be obese, and be African-Ameri.can. In addition, they are more susceptible to mental health complications, especially during this pandemic, because they are more likely to have mental health comorbidities and pandemics and isolation can increase feelings of anxiety and depression.

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1. Chronic medical conditions. The prison andjail population in America

has beeu shovm to be more likely than the general population to have

chronic medical conditions and infectious diseases such as HIV, hepatitis

and tuberculosis. Using data from the 20 I 1-12 National Inmate Survey

(NIS-3), au estimated 40% of state and federal prisoners and jail inmates

reported having a current chronic condition while about half reported ever having a chronic medical condition.1<• Persons with chronic medical

•

conditions are at higher risk for more severe complications when infected

•
I

with COVID-19.

ii. Obesity. In 2011-12, the majority of prisoners (74%) andjail inmates

(62%) were overweight, obese, or morbidly obese. Obesity rates have only

increased since 2011-12 so it is likely these percentages are even higher

now. Persons with obesity are at higher risk for more severe complications

when infected with COVID-19.

111. Disproportionate number of African-American inmates. Data from the

Prison Policy Initiative, compiled from the 20 IO Census, sbows that black

persons make up 29% of Maryland's population but 68% of the prison/jail populatioit. 17 Preliminary data shows that African-Americans are at higher

risk for more severe complications when infected with COVID-19.

1v. Mental health comorbidities. The mentally ill are overrepresented in

conectional settings at estimated rates ranging from two to four times the general population.18 Stressors particular to a pandemic - such as social

isolation, limited contact with family and friends, reduction in physical

activity, anxiety about infection, increased financial pressure related to job

loss, and grief related to death of friends and family members - can all act

to increase feelings of depression and anxiety, and thereby increase risk of

suicidal behavior. Stressors related to a pandemic while injail or prison -

such as feelings of being treated inlmmanely, anxiety about delays in

medical care, anger and frustration at inadequate treatment, feeling

financially stressed about medical copays and the cost of necessary

hygiene items -can all act to increase feelings of depression and·anxiety

as well.

v. During this pandemic, inmate reports, including 25 il4-5, 27i14, show that

inmates with medical conditions that put them at increased risk of

infection and disease, are not being cared for appropriately. Mental health

risk is discussed in more detail below.

•• �1.truschuk, Laura M.. et. al. (Revised 2016). Special rcpon: Medical probkm1s ofsratc and federal prisoners and jail innwtcs. 2011.12. Bureou q/'.lusri<.:e Swtlslics, 17 Maryland profile. Prison Policy Initiative. Retrieved April 14. 2020 fro111
h11ps:l/1v11·w .prisonpolicv.on:lorotiles/MD.h1 ml.
18 Al•Rousan, ral�, cl �11. (2017>. Inside the nation's largest mental he.nhh instiltltion: A prcvnkncc study ;n a Slate prison sys1e111. f/,1/C f'u/>lic flea/ti,. /7(342).
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a. An inmate with asthma, a high-risk condition, was experiencing

shortness of breath and waited two weeks for medical evaluation.

b. An inmate with HIV, a high-risk condition for infection, especially

if he has a low CD4 count, was experiencing fever, cough and

signs of infection. He reports waiting ten days for medical

evaluatio11. c. An inmate with asthma requested an albuterol inhaler at intake into

•

thejail, bu( has not yet received one. Asthmatics should have

access to albuterol as needed.

D. Inadequate sanitation. For inmates who must be incarcerated, it is essential that they are provided with adequate supplies to practice proper hygiene and sanitation in an effort to support containment ofCOVID-19. Housing unit cells are often very minimalist and an inmate's toilet is often in the same shared space as his bed, property, clothing, and hygiene items. 1. Housing cells, communal recreation areas, washrooms, visitation rooms, staff quarters should all be sanitized regularly. 11. Effective sanitation requires provision of appropriate cleaning supplies, including gloves (when cleaning toilets), soap and/or adequate cleaning solurion, clean water. and paper products or clean towels. 111. if cleaning rags are used, they should be cleaned frequently. 1v. Body fluids should absolutely be cleaned from any surfaces. v. Communal telephones should be sanitized between each use. vi. Frequent touch surfaces should be cleaned routinely, at least daily and sometimes multiple times daily when indicated. v11. Inmates should have access to soap and clean water at all times to allow for frequent handwashing. Liquid hand soap preferred. v111. Clean clothing, including underwear, and wash towels, and/or a means to launder these items, should be provided. ix. Adequate personal hygiene, including showering and teeth-brushing, is important as well. x. General sanitation guidelines should be followed, such as regular removal of trash. xi. Sanitation supplies are essential during a pandemic so cost should not be placed as a barrier. x11. There are proper ways to effectively clean and sanitize, and if a facility designates that an inmate must clean his own space, he should be given specific supervision on how to do so. x.iii There are a concerning number of inmate reports, including l2l7-8
and 12, l l ,JIS-20, l 0 ,Jl l and 13-14, 9,II 7-19, l 0114, l l ,il3, l3,i9 , l4 ,i8, Seth Decl. i)l I, l 5 ,i7-8, Smith Decl.,il0-11 and 15, JohnDoeNo.2,i9,
I 8 if6 and 9, 23 ii12, Bunch Decl.1[9, 25 iJ9- l O indicating that conditions
are not

10

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Guidelines in regards to adequate PPE use have changed multiple times over the past

six weeks.

1. Personal protective equipment (PPE) includes a recommendation for face

masks, ideally double-layered cloth, for all inmates and staff when within

six feet of othe. rs or when in shared spaces.

ii. Cloth face masks should be laundered before each daily use.

111. Surgical masks and N95 respirators are thought to be adequately effective

•

as well against droplet transmission of virus, however because of PPE

shortages, they are being reserved for healthcare professionals and medical first responders; this includes staff in correctional facilities who have

direct contact with (including transport) or offering medical care to

confirmed or suspected COVID-19cases.

1v. Eye protection, gloves, and gowns are recommended for staff performing

temperature checks. When performing temperature checks on multiple

individuals, a clean pair of gloves should be used for each individual and

the thermometer should be thoroughly cleaned bel\veen each check. If

disposable or non-contact thennometers are used and the screener did not

have physical contact with an individual , gloves do not need to be changed

before the next check.

v. When cleaning toilets or surfaces contaminated with body fluids, gloves should be used.

vi. food handlers should be wearing masks and gloves when handling food.

vii. Enforcement of face masks in a correctional facility setting may be

difficult and you will find variable levels of enforcement among staff. Without consistent compliance of face mask use, the risk of droplet

transmission of COVID-19is dramatically inc.reased, compromising the

safety of inmates and staff.

viii. There are a concerning number of inmate reports, including l 0118-19,
Smith 9-10, Doe l 110, Doe 217,1819,21,Doe 4 113,22110, 2416, Bunch 15,
indicating that appropriate personal protective equipment is not being

used, or is not being used properly. Inmate reports include:

1. Inmates arc being required to clean their cells daily without gloves,

although some report glove availability for cleaning toilets. Gloves

should be used for toilets or surfaces contaminated with body

fluids. Many inmates report they have been refused gloves.

11. Inmates have been issued "paper" masks, but paper masks can

become contaminated in time and need replacement. In a hospital

setting, we obtain replacement surgical masks after five days, or

earlier ifthe mask is visibly soiled, broken , or known to be

contaminated. Inmates arc being told that masks will not be

replaced, even if they get lost, tom,or soiled. 111. There does not seem to be uniformity with correctional staff use of

masks. "Some officers wear them and some do not." Ideally, all

12

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a. Multi-step sick call protocols; b. The financial cost of sick call; c. Complexity of chronic medical conditions, which becomes
especially difficult to coordinate care in facilities with frequent inmate turnover; d. Comorbid substance abuse and mental health issues that complicate medical symptomatology, especially in the setting of substance or medication withdrawal upon entry to jail; e. Staff apathy related to inmate concerns; f. Desire among staff members to limit interaction with acutely or chronically infected individuals out of fear; g. Insufficient staff and inmate training related to acute and chronic healthcare issues; h. Limited physician availability and access to physician care; 1. Limited access to medications. Oftentimes, an inmate cannot receive his chronic medications until a physician arrives to the facility which may only be as frequently as once per week; J. Inadequate staffing of correctional officers to provide inmate transport as needed to medical facilities within and outside of the correctional facility; k. Safety and institutional policies (i.e. lockdowns, segregational housing) that impede and delay inmate access to medical care; I. Lack of uniform quality-of-care standards and oversight programs regulating quality of medical care i11 the correctional health setting; m. Budget constraints which translate to reduced delivery of healthcare; n. A fragmented system of electronic medical record systems across the nation that make it difficult to fac.ilitate obtaining medical histories and providing continuity of care. 11. There are a number of inmate reports, including l 2 13-4, l 0iJ9-10, Seth
iJ4 and 6, Doe l iJS and 7, 18 ,1s, 19 �5-6, 2314-6, Bunch ,11 I, 2515,
2717, indicating that barriers arc in place to medical triage, or inmates are not being triaged in a timely or adequate fashion. Inmate reports include:
a. Placing a sick call requires a $4 copay, including for symptoms concerning for COVID-19. Eliminating barriers to medical care, for example sick call copays, when an inmate has symptoms concerning for a pandemic virus should be considered in the interest of public healtl1.
b. Multiple inmates with symptoms concerning for COVID-19 report significant delays, up to IO days, between placing a "sick call" form and receivi.ng a medical evaluation. This is inappropriate; these inmates should be evaluated promptly in the interest of containment and adequate care.
14

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□ J, An inmate with I· Y, a high-risk condition for infection, especially
ifhe has a low CD4 count, was experiencing fever, cough and

signs of infection. He waited ten days for medical evaluation.

k. An inmate with an infectious eye lesion was denied evaluation by a

medical provider. He was advised to use an unsanitary washcloth

as a warm compress. I. On April 7, inmate repoits no sick call slips are available. Inmates

•

are being advised that medical is only handling COYID-19

concerns, and not routine care, implying that inmates do not have

access to medical care for non-COYID-19 issues.

m. An indigent inmate with infectious symptoms reports he is unable

to request medical evaluation because he does not have the sick

call fee.

G. Proper medical triage, care and quarantine, with dose monitoring, is required for cases of C()VID-19 without ind.i cations for hospitalization. Not every infected COYlD-19 patient requires inpatient hospitalization. Patients who do not require oxygen supplementation or additional treatment absolutely need to qLiarantine but may not need inpatient hospital services. Effective quarantine of inmates who arc infected with COVID-19 but not severely enough to require hospitalization is complicated given the inmate's regular reliance on interaction with staff throughout the day for basic needs such as food, drink, clean laundry; and for medical needs while ill, such as routine temperature, blood pressure, heart rate, and oxygen saturation checks, medication administration, etc. Unfortunately, mandated quarantine may lead to increased staff apathy and unwillingness to care for inmates appropriately given the stafrs increased risk of obtaining COVTD-19 in interacting with infected or possibly infected inmates. In correctional health facilities, inmates infected with COVl0-19 should ideally be quarantined in a separnte single cell with solid walls (i.e. not bars) and solid doors that close fully. Alternative options are recommended if this is not feasible, but this is the ideal, and other options will lead to increased transmission of the vims. (t is essential that quarantined inmates have the ability to notify staff in case of emergency, and that they are being monitored closely, as persons infected with COVID-19 can decompensate quickly from a respiratory standpoint. Staffshould minimize their in-person interactions with inmates when possible, as we know that increased length of exposure leads to increased transmission, but medical care should not be compromised because ofthat. Furthermore, quarantining COVID-infected persons should not be a contraindication to relea�e fromjail or prison ifthe person is willing and able to quarantine safely at home. 1. There are inmate reports, including 10 �20 and 22, 9 120 and 23, 6-8, indicating that inmates infected with COVID-19 are nol being quarantined effectively or monitored closely. Inmate reports include:

16

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the facility with a reduced number of staff. It cannot be stressed enough that staff

knowledge and training on COVID-19 and management strategies in congregate

environments is essential during a pandemic to limit morbidity and mortality

and reduce anxiety and panic.

1. There are multiple reports by inmates,including l l 16 and l I,

l 0 15-6, 8 and 17, 9119, Seth ii9, l 517-8, Smith i111 and 14, l8116,20 115 and l9,23112,25i!l l ,27114-15that indicate that either thejail staffare either not bei11g trained properly in regards to

• .
!

containment of COVJD-19, or are not following recommended guidelines.

These reports include:

1. Inmates have not consistently been informed that they should

socially distance, remaining six feet apart from other persons at all

possible times, including during recreation time.

11. Placing uneaten meal trays on the floor of a cell. Meal trays should

not be placed on the floor.

111. Meal tray delivery is occurring without masks or gloves. Food

handlers should be wearing masks and gloves when handling food.

1v. lnmatcs being required to clean the kitchen, a shared space within

six feet of each other, without masks. I strongly feel that inmates

should be wearing masks'within six feet of each other given the

known prevalence ofCOVID-19 within the facility, the fact that

sanitation and PPE guidelines have not been followed, and

especially in the setting ofcleaning a known contaminated unit (as

multiple inmates working in the kitchen were reported to be

positive for COVID-19).

v. Inmates being directed and required to clean known contaminated

surfaces without training in c-0ntamination management.

v1. Telephones and shared surfaces (frequent touch surfaces) within

the housing units not being cleaned or sanitized between each use,

or cleaning solution not ava.ilable to use for sanitation by inmates.

v11. Correctional staff have advised inmates in the quarantine unit that

any items that go into quarantine cannot come back out, including

trash. There is not a contraindication to removing trash. It should

be removed regularly and discarded appropriately within

contamination guidelines.

v111. Concern by the inmates in variability among correctional officers

regarding policy: "Some of the COs are worried and take this

situation seriously, while others do not seem to know a lot about it.

... They are putting us in jeopardy if they are not cautious."

Policies should be carried out with consistency among supervising

staff to minimize transmission of COVID-19.

11. There are multiple repo1ts by inmates, including l l il9, 9 16, 19 i1s that indicate that either tbe jail stCJU·are either not being trained

18

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properly in regards to evalualion or management of COYlD-19, or are not following recommended guidelines.
t. inmates with symptoms concerning for COVlD-19, including fever and respiratory symptoms, in a congregate facility with known COVID-19 and minimal containment efforts, are not being evaluated for hypoxia. Inmates in medical isolation who are infected with COVID-19 are receiving temperature checks three times daily but not vital signs. In a medical setting, obtaining regular vital signs is standard ofcare, to evaluate for hemodynamic stability and hypoxia (reduced oxygen levels). fever is a symptom of COVID-19, but hypoxia is the life-threatening concern.
11. An inmate with symptoms which could be concerning forCOYID­ ! 9, including fever, in a congregate facility with known COVID19 and minimal containment efforts, is being told that he does not have COVID-19 without testing because he has been in Ille facility for two weeks. II is not accurate to say that the inmate could not haveCOVJD-19.
111. There are multiple reports by inmates, including l l ,112, that indicate that the inmates are either not receiving info1mation about COVID-19, or are being restricted from information aboutCOVlD-19. These reports include: 1. Inmates are not being informed ofjail policies regarding COVID19. They have not received information in writing or verbally regarding COVfD-19 or prevention strategies. They have not received guidance regarding social distancing. 2. Inmates are restricted from watching television news related 10 the nature of solitary confinement. Inmates do not have sufficient source of updated information regarding COVID-19.
111. Inmates report signage regarding COVID-19, but only in the medical facility, where it can thereby only be viewed once inmates are symptomatic. Posting signage in the housing units should strongly be considered.
J. Mental health is just as important as physical health. Incarcerated persons are at significantly higher risk of mental health issues. When you add in the stressors of incarceration, a public health pandemic, and solitary confinement - such as limited contact with family and friends, social isolation, reduction in physical activity, anxiety about infection, increased financial pressure related to job loss and cost of medical copays and hygiene items, grief related to death of friends and family members, feelings of being treated inhumanely, anxiety about delays in medical care, anger and frustration at inadequate medical treatment or delays in care - it becomes especially important that we tend to i1unates' mental health and encourage a shared
19

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sense of humanity to help prevent worsening ofmental health with poor outcomes. In

addition, we know that solitary confinement has effects on many inmates, including anxiety, panic, insomnia, paranoia, aggression, and depression.21 Efforts to help

improve mental health include encouragement of contact with family via

telephone or video chat if possible (in-person visitation bas been limited in most

facilities), availability of psychology/psychiatry staff as appropriate, and

ensuring that inmates are receiving their p1·escribed psychiatric medications.
1. Per inmate declarations l2 �9 and 13-14, l l i121, l 0i14, 9fi2 1,l l 11I3,l

• .
!

3,rs, Seth,rs, Smith,rs andfilS, 17fi8, Doe l fi9, and Bunch il4, I have

concern that there has not been sufficient acknowledgement ofor attention

to the inmates' mental health under the stressors of pandemic and

confinement.

1. ll seems that all inmates have essentially been placed on lockdown

with twenty-three hours ofsolit:ary confinement daily for an

indefinite period of time. 11. Psychologists/psychiatrists have not been made available. One

inmate stated, "I can't get mental health treatment because the

mental health people won't see me."

111. Books, reading material, and general entertainment are unavailable

twenty-three hours a day. Phone calls to family and attorneys, and

television are very limited and must be fit into the one hour of

recreational time allowed for daily (which time also must include

showering, cleaning, exercising, etc.).

1v. Inmates isolated in the medical unit cannot make telephone calls or

receive visitation. While visitation is understandable in the setting

of social distancing, telephone use and contact with family has

traditionally been one of the highest priorities for inmates.

v. Au inmate reports unwillingness to take his anti-seizure medication

while in quarantine because, "I've lost my spirit, sort of given up,

being in this situation."

vi. Inmates are hesitant to report COVID-19 symptoms because they

do not want to deal with the further isolation of the medical uni. l.

Other than three brief nursing visits daily in medical isolation,

inmates "have no communication with the outside world." Setting

up a system which deters inmates from reporting symptoms is

dangerous from a containment standpoint.

v11. Inmates are not receiving information about COVID-19, which can

cause increased anxiety. One inmate reported, "Things are getting

hostile here because people feel completely shut off, completely in

the dark."

>i \Veil". Kirsten.(2012). "Alon�. ill "lfll'- hole;:•· A11wri1. '(1t1 P,.,:l'chn!h,'.!,ict1! •lssociutiow ,\lonitr>r an P.tFdw/oK_l', 43(5).54

20

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EXHIBIT 33

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Kristen A. Benninger, M.D.
Phone: (469) 667-9282 Email: kristen.a.benninger@gmail.com

EDUCATION
Family Medicine Residency University of North Carolina Hospitals
M.D., Medical Degree Drexel University College of Medicine
Post-Baccalaureate Studies University of Maryland at College Park Pre-Medical coursework
Bachelor of Arts, Sociology University of Texas at Austin Major: Sociology, Minor: Women’s Studies

July 2018 Chapel Hill, NC
May 2015 Philadelphia, PA
May 2009 College Park, MD
May 2002 Austin, TX

LICENSURE/CERTIFICATIONS
ACLS, PALS, BLS for Healthcare Providers, Active DEA license, Federal Drug Enforcement Administration, Active Board certification, American Board of Family Medicine, #1090917794, Active Physician License, North Carolina Medical Board, #2018-00906, Active Lean Six Sigma, Yellow Belt Certification National Provider Identifier (NPI) #1770960072

Aug. 2018 Dec. 2019 Jul. 2018 Apr. 2018 Aug. 2015 May 2015

PRESENT POSITION

UNC JOHNSTON HEALTHCARE, Smithfield, NC Hospitalist
 Johnston Hospital, Smithfield, NC  Clayton Hospital, Clayton, NC

Jan. 2020 – Present

PREVIOUS PROFESSIONAL EXPERIENCE

UNIVERSITY OF NORTH CAROLINA, Chapel Hill, NC

Sep. 2018 – Jan. 2020

Clinical Assistant Professor, Family Medicine

 Central Prison Healthcare Complex, Hospitalist & Urgent Care Provider

 UNC Hospitals Observation Unit, Hospitalist

 UNC Hospitals Family Medicine Inpatient Teaching Service, Attending

 UNC Family Medicine Center, Urgent Care Provider

 Chatham Hospital, Hospitalist

SUMMIT HEALTH, Various Locations in PA/NJ/DE Health Screener

Jun. 2011 – Nov. 2012

UNIVERSITY OF MARYLAND SCHOOL OF MEDICINE, Baltimore, MD Aug. 2008 – Jul. 2010 Growth & Nutrition Clinic Coordinator Children’s HealthWatch Quality Control Manager

CIRCUIT COURT FOR HOWARD COUNTY, Ellicott City, MD Calendar and Information Management Technician

Mar. 2007 – Aug. 2008

Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20
PLANO MUNICIPAL COURT, Plano, TX Municipal Court Supervisor Senior, Systems Support Coordinator / Special Projects Municipal Court Clerk II

Page 202 of 283
Sep. 2001 – Oct. 2006

TEACHING RECORD

UNIVERSITY OF NORTH CAROLINA, Chapel Hill, NC

Attending (Teaching) Physician, Family Medicine

Sep. 2018 – Jan. 2020

 Central Prison Healthcare Complex, Hospitalist & Urgent Care Provider, Raleigh, NC

 UNC Hospitals Observation Unit, Hospitalist

 UNC Hospitals Family Medicine Inpatient Teaching Service, Attending

 UNC Family Medicine Center, Urgent Care Provider

 Chatham Hospital, Hospitalist, Siler City, NC

Faculty Advisor, Community Service and Care of the Underserved Scholarly Concentration Program

Nov. 2018 – Jan. 2020

Faculty Teacher, Vital signs, Camp Cardiac (Medical students)

July 2019

PUBLICATIONS
“Improving Diabetic Retinal Screening at an Academic Family Medicine Practice: A Longitudinal Project to Improve Patient Care and Resident Education,” co-author, submission for Society of Teachers of Family Medicine (STFM) 2018 Annual Spring Conference.

PRESENTATIONS
“Prison Medicine” Presenter, Johnston Hospital didactics teaching
Interdisciplinary Morbidity and Mortality (M&M) Co-presenter, UNC residency-wide interdisciplinary M&M conference
UNC Family Medicine Residency Didactics Teaching “Sleeping & Eating: Year One; The Good, Bad, Ugly and Weird” “5 w.o. with Fever and Irritability: Case Presentation on Septic Hip in an Infant” “QUASI: 28F with Sore Throat and Malaise (DVT prophylaxis)” “14 m.o. with Rash and Fever: Case Presentation on Hand, Foot and Mouth Disease” “Tobacco Cessation Interventions at the Primary Care Visit” “Insomnia”

Feb. 2020
Jan. 2018
Apr. 2017 Dec. 2016 Sep. 2016 May 2016 Feb. 2016 Oct. 2015

PROFESSIONAL ORGANIZATIONS
Academic Consortium on Criminal Justice Health, member American Association of Family Practice, member

2019 – Present 2015 – Present

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EXHIBIT 34

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lockdowns only where medically necessary to resolve discrete issues, such as sanitizing dorms or contact tracing of an infected prisoner. If the Prince George's County Jail 1·esorts to these lockdowns, it should do so in a reasonably time-limited manner and communicate that time-limit to the prisoners who are affected. Moreover, if lockdowns are employed, the Jail should ensure inmates' access to resources to protect their mental health, such as reading material and adequate access to phones, and Jail staff should regularly communicate with and monitor the physical and mental health of prisoners who are on lockdown.
30. In addition, as I stated above, I believe that the Jail must avoid the use of lockdown procedures with prisoners who suffer pre-existing mental health conditions unless they are absolutely necessary. If psychologically vulnerable prisoners must go on lockdown, the Jail should ensure that the lockdown is as brief as reasonably possible, and that these prisoners are provided with enhanced psychological services while they are on lockdown.
30. With respect to the Jail's medical isolation procedures, to mitigate the psychological stress of isolation, I urgently recommend that medical isolation cells be kept sanitary and that prisoners isolated in them are given access to adequate personal hygiene supplies, clean water, changes of clothes, and reading material. To the extent feasible, medically isolated prisoners should also be given reasonable access to phones. Prisoners should remain in isolated for the shortest amount of time reasonably possible to satisfy the CDC guidelines. Finally, medically isolated prisoners should be checked regularly by Jail staff and given regular access to psychological services. These steps are critical for all prisoners. They are particulal'ly critical for psychologically vulnerable prisoners.
31. It is my opinion that, unless these steps are taken to end general, preemptive lockdowns and mitigate the psychological stress of temporary lockdowns and medical isolation procedures, prisoners will face grave dangers to their mental and physical health.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on April 16, 2020 at Santa Cruz, California.

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EXHIBIT 35

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CURRICULUM VITAE

Craig William Haney Distinguished Professor of Psychology
UC Presidential Chair, 2015-2018 University of California, Santa Cruz 95064

home address:
phone: fax: email:

317 Ocean View Ave. Santa Cruz, California 95062 (831) 459-2153 (831) 425-3664 psylaw@ucsc.edu

PREVIOUS EMPLOYMENT

2015-2018

University of California Presidential Chair

2014-present

Distinguished Professor of Psychology, University of California, Santa Cruz

1985-2014

University of California, Santa Cruz, Professor of Psychology

1981-85

University of California, Santa Cruz, Associate Professor of Psychology

1978-81

University of California, Santa Cruz, Assistant Professor of Psychology

1977-78

University of California, Santa Cruz, Lecturer in Psychology

1976-77

Stanford University, Acting Assistant Professor of Psychology

EDUCATION 1978 1978

Stanford Law School, J.D. Stanford University, Ph.D. (Psychology)

1

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1972 1970

Stanford University, M.A. (Psychology) University of Pennsylvania, B.A.

HONORS AWARDS GRANTS

2020

Finalist, Stockholm Prize in Criminology (for “outstanding achievements in criminological research or for the application of research results by practitioners for the reduction of crime and the advancement of human rights”).

2018

Emerald Literati Award for “Outstanding Paper” (for “Reducing the Use and Impact of Solitary Confinement in Corrections”).

2016

Vera Institute of Justice “Reimagining Prisons” Initiative Advisory Council.

Psychology Department “Most Inspiring Lecturer”

2015

University of California Presidential Chair (2015-2018 Term)

Martin F. Chemers Award for Outstanding Research in Social Science

Excellence in Teaching Award (Academic Senate Committee on Teaching).

President’s Research Catalyst Award for “UC Consortium on Criminal Justice Healthcare” (with Brie Williams and Scott Allen).

Vera Institute of Justice “Safe Alternatives to Segregation” (SAS) Initiative Advisory Council.

Who’s Who in Psychology (Top 20 Psychology Professors in California) [http://careersinpsychology.org/psychology-degreesschools-employment-ca/#ca-psych-prof]

2014

Distinguished Faculty Research Lecturer, University of California, Santa Cruz.

2013

Distinguished Plenary Speaker, American Psychological Association Annual Convention.

2012

Appointed to National Academy of Sciences Committee to Study the Causes and Consequences of High Rates of Incarceration in the United States.

2

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2011 2009 2006
2005
2004 2002

Invited Expert Witness, United States Senate, Judiciary Committee.
Edward G. Donnelly Memorial Speaker, University of West Virginia Law School.
Nominated as American Psychological Foundation William Bevan Distinguished Lecturer.
Psi Chi “Best Lecturer” Award (by vote of UCSC undergraduate psychology majors).
Herbert Jacobs Prize for Most Outstanding Book published on law and society in 2005 (from the Law & Society Association, for Death by Design).
Nominated for National Book Award (by American Psychological Association Books, for Reforming Punishment: Psychological Limits to the Pains of Imprisonment).
“Dream course” instructor in psychology and law, University of Oklahoma.
Annual Distinguished Faculty Alumni Lecturer, University of California, Santa Cruz.
Arthur C. Helton Human Rights Award from the American Immigration Lawyers Association (co-recipient).
Scholar-in-Residence, Center for Social Justice, Boalt Hall School of Law (University of California, Berkeley).
“Golden Apple Award” for Distinguished Teaching, awarded by the Social Sciences Division, University of California, Santa Cruz.
National Science Foundation Grant to Study Capital Jury Decisionmaking
Santa Cruz Alumni Association Distinguished Teaching Award, University of California, Santa Cruz.
United States Department of Health & Human Services/Urban Institute, “Effects of Incarceration on Children, Families, and LowIncome Communities” Project.

3

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2000
1999
1997 1996 1995 1994 1992
1991 1990 1989 1976

American Association for the Advancement of Science/American Academy of Forensic Science Project: “Scientific Evidence Summit” Planning Committee.
Teacher of the Year (UC Santa Cruz Re-Entry Students’ Award).
Invited Participant White House Forum on the Uses of Science and Technology to Improve National Crime and Prison Policy.
Excellence in Teaching Award (Academic Senate Committee on Teaching).
Joint American Association for the Advancement of ScienceAmerican Bar Association Science and Technology Section National Conference of Lawyers and Scientists.
American Psychology-Law Society Presidential Initiative Invitee (“Reviewing the Discipline: A Bridge to the Future”)
National Science Foundation Grant to Study Capital Jury Decisionmaking (renewal and extension).
National Science Foundation Grant to Study Capital Jury Decisionmaking.
Teacher of the Year (UC Santa Cruz Re-Entry Students’ Award).
Gordon Allport Intergroup Relations Prize (Honorable Mention)
Excellence in Teaching Convocation, Social Sciences Division
Outstanding Contributions to Preservation of Constitutional Rights, California Attorneys for Criminal Justice.
Psychology Undergraduate Student Association Teaching Award
SR 43 Grant for Policy-Oriented Research With Linguistically Diverse Minorities
Alumni Association Teaching Award (“Favorite Professor”)
Prison Law Office Award for Contributions to Prison Litigation
UC Mexus Award for Comparative Research on Mexican Prisons
Hilmer Oehlmann Jr. Award for Excellence in Legal Writing at Stanford Law School

4

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1975-76 Law and Psychology Fellow, Stanford Law School

1974-76 Russell Sage Foundation Residency in Law and Social Science

1974

Gordon Allport Intergroup Relations Prize, Honorable Mention

1969-71 University Fellow, Stanford University

1969-74 Society of Sigma Xi

1969

B.A. Degree Magna cum laude with Honors in Psychology

Phi Beta Kappa

1967-1969 University Scholar, University of Pennsylvania

UNIVERSITY SERVICE AND ADMINISTRATION

2010-2016 2010-2014 2009 2004-2006 1998-2002 1994-1998 1992-1995 1995 (Fall) 1995-1996 1990-1992 1991-1992
1984-1986

Director, Legal Studies Program Director, Graduate Program in Social Psychology Chair, Legal Studies Review Committee Chair, Committee on Academic Personnel Chair, Department of Psychology Chair, Department of Sociology Chair, Legal Studies Program Committee on Academic Personnel University Committee on Academic Personnel (UCAP) Committee on Academic Personnel Chair, Social Science Division Academic Personnel Committee Chair, Committee on Privilege and Tenure

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WRITINGS AND OTHER CREATIVE ACTIVITIES IN PROGRESS

Books:
Counting Casualties in the War on Prisoners: Toward a Just and Lasting Peace (working title, in preparation).
Articles:
“The Psychological Foundations of Capital Mitigation: Why Social Historical Factors Are Central to Assessing Culpability,” in preparation.

PUBLISHED WRITINGS AND CREATIVE ACTIVITIES Books

2020 2014
2006 2005

Criminality in Context: The Psychological Foundations of Criminal Justice Reform. Washington, DC: American Psychological Association Books.
The Growth of Incarceration in the United States: Exploring the Causes and Consequences (with Jeremy Travis, Bruce Western, et al.). [Report of the National Academy of Sciences Committee on the Causes and Consequences of High Rates of Incarceration in the United States.] Washington, DC: National Academy Press.
Reforming Punishment: Psychological Limits to the Pains of Imprisonment, Washington, DC: American Psychological Association Books.
Death by Design: Capital Punishment as a Social Psychological System. New York: Oxford University Press.

Monographs and Technical Reports

1989

Employment Testing and Employment Discrimination (with A. Hurtado). Technical Report for the National Commission on Testing and Public Policy. New York: Ford Foundation.

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Articles in Professional Journals and Book Chapters

2020 2019

“Solitary Confinement, Loneliness, and Psychological Harm,” in Jules Lobel and Peter Scharff Smith (Eds.), Solitary Confinement: Effects, Practices, and Pathways to Reform (129-152). New York: Oxford University Press.
“Continuing to Acknowledge the Power of Dehumanizing Environments: Responding to Haslam, et al. (2019) and Le Texier (2019)” (with Philip Zimbardo), American Psychologist, 75(3), 400402.
“Afterword,” in Robert Johnson, Condemned to Die: Life Under Sentence of Death (pp. 136-141). Second Edition. New York: Routledge.
“Changing correctional culture: Exploring the role of U.S.-Norway exchange in placing health and well-being at the center of U.S. prison reform” (with Cyrus Ahalt, Brie Williams, and Kim Ekhaugen), American Journal of Public Health, in press.

2018

“Restricting the Use of Solitary Confinement,” Annual Review of Criminology, 1, 285-310.
“Death Qualification in Black and White: Racialized DecisionMaking and Death-Qualified Juries” (with Mona Lynch), Law & Policy, in press.
“Balancing the Rights to Protection and Participation: A Call for Expanded Access to Ethically Conducted Correctional Research. Journal of General Internal Medicine, 33(22). DOI: 10.1007/s11606-018-4318-9.
“The Plight of Long-Term Mentally-Ill Prisoners” (with Camille Conrey and Roxy Davis), in Kelly Frailing and Risdon Slate (Eds.), The Criminalization of Mental Illness (pp. 163-180). Durham, NC: Carolina Academic Press.
“The Psychological Effects of Solitary Confinement: A Systematic Critique,” Crime and Justice, 47, 365-416.
“The Media’s Impact on the Right to a Fair Trial: A Content Analysis of Pretrial Publicity in Capital Cases (with Shirin Bakhshay), Psychology, Public Policy, and Law, 24, 326-346.

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2017
2016 2015

“Mechanisms of Moral Disengagement and Prisoner Abuse” (with Joanna Weill). Analyses of Social Issues and Public Policy, 17, 286318.
“‘Madness’ and Penal Confinement: Observations on Mental Illness and Prison Pain,” Punishment and Society, 19, 310-326.
“Contexts of Ill-Treatment: The Relationship of Captivity and Prison Confinement to Cruel, Inhuman, or Degrading Treatment and Torture” (with Shirin Bakhshay), in Metin Başoğlu (Ed.), Torture and Its Definition in International Law: An Interdisciplinary Approach (pp.139-178). New York: Oxford.
Special Issue: “Translating Research into Policy to Advance Correctional Health” (guest editor with B. Williams, C. Ahalt, S. Allen, & J. Rich), Part II, International Journal of Prisoner Health, 13, 137-227.
“Reducing the Use and Impact of Solitary Confinement in Corrections” (with Cyrus Ahalt, Sarah Rios, Matthew Fox, David Farabee, and Brie Williams), International Journal of Prisoner Health, 13, 41-48.
“Examining Jail Isolation: What We Don’t Know Can Be Profoundly Harmful” (with Joanna Weill, Shirin Bakhshay, and Tiffany Winslow), The Prison Journal, 96, 126-152.
“On Structural Evil: Disengaging From Our Moral Selves,” Review of the book Moral Disengagement: How People Do Harm and Live With Themselves, by A. Bandura], PsycCRITIQUES, 61(8).
“When Did Prisons Become Acceptable Mental Healthcare Facilities?,” Report of the Stanford Law School Three Strikes Project (with Michael Romano et al.) [available at: http://law.stanford.edu/wpcontent/uploads/sites/default/files/childpage/632655/doc/slspublic/Report_v12.pdf ].
“Emotion, Authority, and Death: (Raced) Negotiations in Capital Jury Negotiations” (with Mona Lynch), Law & Social Inquiry, 40, 377-405.

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2014 2013 2012
2011

“Prison Overcrowding,” in B. Cutler & P. Zapf (Eds.), APA Handbook of Forensic Psychology (pp. 415-436). Washington, DC: APA Books.
“The Death Penalty” (with Joanna Weill & Mona Lynch), in B. Cutler & P. Zapf (Eds.), APA Handbook of Forensic Psychology (pp. 451-510). Washington, DC: APA Books.
“‘Prisonization’ and Latinas in Alternative High Schools” (with Aida Hurtado & Ruby Hernandez), in J. Hall (Ed.), Routledge Studies in Education and Neoliberalism: Female Students and Cultures of Violence in the City (pp. 113-134). Florence, KY: Routledge.
“How Healthcare Reform Can Transform the Health of Criminal Justice-Involved Individuals” (with Josiah Rich, et al.), Health Affairs, 33:3 (March), 1-6.
“Foreword,” for H. Toch, Organizational Change Through Individual Empowerment: Applying Social Psychology in Prisons and Policing. Washington, DC: APA Books (in press).
“Foreword,” for J. Ashford & M. Kupferberg, Death Penalty Mitigation: A Handbook for Mitigation Specialists, Investigators, Social Scientists, and Lawyers. New York: Oxford University Press.
“Politicizing Crime and Punishment: Redefining ‘Justice’ to Fight the ‘War on Prisoners,’” West Virginia Law Review, 114, 373-414.
“Prison Effects in the Age of Mass Incarceration,” Prison Journal, 92, 1-24.
“The Psychological Effects of Imprisonment,” in J. Petersilia & K. Reitz (Eds.), Oxford Handbook of Sentencing and Corrections (pp. 584-605). New York: Oxford University Press.
“The Perversions of Prison: On the Origins of Hypermasculinity and Sexual Violence in Confinement,” American Criminal Law Review, 48, 121-141. [Reprinted in: S. Ferguson (Ed.), Readings in Race, Gender, Sexuality, and Social Class. Sage Publications (2012).]
“Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the ‘Empathic Divide’” (with Mona Lynch), Law and Society Review, 45, 69-102.
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2010 2009

“Getting to the Point: Attempting to Improve Juror Comprehension of Capital Penalty Phase Instructions" (with Amy Smith), Law and Human Behavior, 35, 339-350.
“Where the Boys Are: Macro and Micro Considerations for the Study of Young Latino Men’s Educational Achievement” (with A. Hurtado & J. Hurtado), in P. Noguera & A. Hurtado (Eds.), Understanding the Disenfranchisement of Latino Males: Contemporary Perspectives on Cultural and Structural Factors (pp. 101-121). New York: Routledge Press.
“Looking Across the Empathic Divide: Racialized Decision-Making on the Capital Jury” (with Mona Lynch), Michigan State Law Review, 2011, 573-608.
“Demonizing the ‘Enemy’: The Role of Science in Declaring the ‘War on Prisoners,’” Connecticut Public Interest Law Review, 9, 139-196.
“Hiding From the Death Penalty,” Huffington Post, July 26, 2010 [www.huffingtonpost.com/craig-haney/hiding-from-the-deathpen-pen_b_659940.html]; reprinted in Sentencing and Justice Reform Advocate, 2, 3 (February, 2011).
“Capital Jury Deliberation: Effects on Death Sentencing, Comprehension, and Discrimination” (with Mona Lynch), Law and Human Behavior, 33, 481-496.
“The Social Psychology of Isolation: Why Solitary Confinement is Psychologically Harmful,” Prison Service Journal UK (Solitary Confinement Special Issue), Issue 181, 12-20. [Reprinted: California Prison Focus, #36, 1, 14-15 (2011).]
“The Stanford Prison Experiment,” in John Levine & Michael Hogg (Eds.), Encyclopedia of Group Processes and Intergroup Relations. Thousand Oaks, CA: Sage Publications.
“Media Criminology and the Death Penalty,” DePaul Law Review, 58, 689-740. (Reprinted: Capital Litigation Update, 2010.)
“On Mitigation as Counter-Narrative: A Case Study of the Hidden Context of Prison Violence,” University of Missouri-Kansas City Law Review, 77, 911-946.

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“Persistent Dispositionalism in Interactionist Clothing: Fundamental Attribution Error in Explaining Prison Abuse,” (with P. Zimbardo), Personality and Social Psychology Bulletin, 35, 807814.

2008

“Counting Casualties in the War on Prisoners,” University of San Francisco Law Review, 43, 87-138.
“Evolving Standards of Decency: Advancing the Nature and Logic of Capital Mitigation,” Hofstra Law Review, 36, 835-882.
“A Culture of Harm: Taming the Dynamics of Cruelty in Supermax Prisons,” Criminal Justice and Behavior, 35, 956-984.
“The Consequences of Prison Life: Notes on the New Psychology of Prison Effects,” in D. Canter & R. Zukauskiene (Eds.), Psychology and Law: Bridging the Gap (pp. 143-165). Burlington, VT: Ashgate Publishing.
“The Stanford Prison Experiment,” in J. Bennett & Y. Jewkes (Eds.), Dictionary of Prisons (pp. 278-280). Devon, UK: Willan Publishers.
“Capital Mitigation,” in Brian Cutler (Ed.), The Encyclopedia of Psychology and the Law (pp. 60-63). Volume I. Thousand Oaks, CA: Sage Publications.
Death Qualification of Juries,” in Brian Cutler (Ed.), The Encyclopedia of Psychology and the Law (pp. 190-192). Volume I. Thousand Oaks, CA: Sage Publications.
“Stanford Prison Experiment,” in Brian Cutler (Ed.), The Encyclopedia of Psychology and the Law (pp. 756-757) (with P. Zimbardo). Volume II. Thousand Oaks, CA: Sage Publications.
“Supermax Prisons,” in Brian Cutler (Ed.), The Encyclopedia of Psychology and the Law (pp. 787-790). Volume II. Thousand Oaks, CA: Sage Publications.

2006

“The Wages of Prison Overcrowding: Harmful Psychological Consequences and Dysfunctional Correctional Reactions,” Washington University Journal of Law & Policy, 22, 265-293. [Reprinted in: N. Berlatsky, Opposing Viewpoints: America’s Prisons. Florence, KY: Cengage Learning, 2010.]

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“Exonerations and Wrongful Condemnations: Expanding the Zone of Perceived Injustice in Capital Cases,” Golden Gate Law Review, 37, 131-173.
“Preface,” D. Jones (Ed.), Humane Prisons. San Francisco, CA: Radcliffe Medical Press.

2005

“The Contextual Revolution in Psychology and the Question of Prison Effects,” in Alison Liebling and Shadd Maruna (Eds.), The Effects of Imprisonment (pp. 66-93). Devon, UK: Willan Publishing.
“Achieving Educational Equity: Beyond Individual Measures of Merit,” (with A. Hurtado), Harvard Journal of Hispanic Policy, 17, 87-92.
“Conditions of Confinement for Detained Asylum Seekers Subject to Expedited Removal,” in M. Hetfield (Ed.), Report on Asylum Seekers in Expedited Removal. Volume II: Expert Reports. Washington, DC: United States Commission on International Religious Freedom.

2004

“Special Issue on the Death Penalty in the United States” (co-edited with R. Weiner), Psychology, Public Policy, and Law, 10, 374-621.
“Death Is Different: An Editorial Introduction” (with R. Wiener), Psychology, Public Policy, and Law, 10, 374-378.
“The Death Penalty in the United States: A Crisis of Conscience” (with R. Wiener), Psychology, Public Policy, and Law, 10, 618-621.
“Condemning the Other in Death Penalty Trials: Biographical Racism, Structural Mitigation, and the Empathic Divide,” DePaul Law Review, 53, 1557-1590.
“Capital Constructions: Newspaper Reporting in Death Penalty Cases” (with S. Greene), Analyses of Social Issues and Public Policy (ASAP), 4, 1-22.
“Abu Ghraib and the American Prison System,” The Commonwealth, 98 (#16), 40-42.
“Disciplinary Segregation,” in Mary Bosworth (Ed.), Encyclopedia of U.S. Prisons and Correctional Facilities (240-244). Volume 1. Thousand Oaks, CA: Sage Publications.

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“Super-Maximum Secure Prisons,” in Mary Bosworth (Ed.), Encyclopedia of U.S. Prisons and Correctional Facilities (pp. 938944). Volume 2. Thousand Oaks, CA: Sage Publications.

2003

“Mental Health Issues in Long-Term Solitary and ‘Supermax’ Confinement,” Crime & Delinquency (special issue on mental health and the criminal justice system), 49, 124-156. [Reprinted in: Roesch, R., & Gagnon, N. (Eds.), Psychology and Law: Criminal and Civil Perspectives. Hampshire, UK: Ashgate (2007).]
“The Psychological Impact of Incarceration: Implications for PostPrison Adjustment,” in Travis, J., & Waul, M. (Eds.), Prisoners Once Removed: The Impact of Incarceration and Reentry on Children, Families, and Communities (pp. 33-66). Washington, DC: Urban Institute Press.
“Comments on “Dying Twice”: Death Row Confinement in the Age of the Supermax,” Capital University Law Review.

2002

“Making Law Modern: Toward a Contextual Model of Justice, Psychology, Public Policy, and Law, 7, 3-63.
“Psychological Jurisprudence: Taking Psychology and Law into the Twenty-First Century,” (with John Darley, Sol Fulero, and Tom Tyler), in J. Ogloff (Ed.), Taking Psychology and Law into the Twenty-First Century (pp. 35-59). New York: Kluwer Academic/ Plenum Publishing.
“Science, Law, and Psychological Injury: The Daubert Standards and Beyond,” (with Amy Smith), in Schultz, I., Brady, D., and Carella, S., The Handbook of Psychological Injury (pp. 184-201). Chicago, IL: American Bar Association. [CD-ROM format]

2001

“Vulnerable Offenders and the Law: Treatment Rights in Uncertain Legal Times” (with D. Specter). In J. Ashford, B. Sales, & W. Reid (Eds.), Treating Adult and Juvenile Offenders with Special Needs (pp. 51-79). Washington, D.C.: American Psychological Association.
“Afterword,” in J. Evans (Ed.), Undoing Time (pp. 245-256). Boston, MA: Northeastern University Press.

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2000 1999

“Discrimination and Instructional Comprehension: Guided Discretion, Racial Bias, and the Death Penalty” (with M. Lynch), Law and Human Behavior, 24, 337-358.
“Cycles of Pain: Risk Factors in the Lives of Incarcerated Women and Their Children,” (with S. Greene and A. Hurtado), Prison Journal, 80, 3-23.
“Reflections on the Stanford Prison Experiment: Genesis, Transformations, Consequences (‘The SPE and the Analysis of Institutions’),” In Thomas Blass (Ed.), Obedience to Authority: Current Perspectives on the Milgram Paradigm (pp. 221-237). Hillsdale, NJ: Erlbaum.
“Ideology and Crime Control,” American Psychologist, 54, 786-788.

1998 1997

“The Past and Future of U.S. Prison Policy: Twenty-Five Years After the Stanford Prison Experiment,” (with P. Zimbardo), American Psychologist, 53, 709-727. [Reprinted in special issue of Norweigian journal as: USAs fengselspolitikk i fortid og fremtid, Vardoger, 25, 171-183 (2000); in H. Tischler (Ed.), Debating Points: Crime and Punishment. Englewood Cliffs, NJ: Prentice-Hall (2001); Annual Editions: Criminal Justice. Guilford, CT: Dushkin/McGraw-Hill, in press; Herman, Peter (Ed.), The American Prison System (pp. 17-43) (Reference Shelf Series). New York: H.W. Wilson (2001); and in Edward Latessa & Alexander Holsinger (Eds.), Correctional Contexts: Contemporary and Classical Readings. Fourth Edition. Oxford University Press (2010).]
“Riding the Punishment Wave: On the Origins of Our Devolving Standards of Decency,” Hastings Women’s Law Journal, 9, 27-78.
“Becoming the Mainstream: “Merit,” Changing Demographics, and Higher Education in California” (with A. Hurtado and E. Garcia), La Raza Law Journal, 10, 645-690.
“Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement,” (with M. Lynch), New York University Review of Law and Social Change, 23, 477-570.
“Psychology and the Limits to Prison Pain: Confronting the Coming Crisis in Eighth Amendment Law,” Psychology, Public Policy, and Law, 3, 499-588.

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1995 1994

“Commonsense Justice and the Death Penalty: Problematizing the ‘Will of the People,’” Psychology, Public Policy, and Law, 3, 303337.
“Violence and the Capital Jury: Mechanisms of Moral Disengagement and the Impulse to Condemn to Death,” Stanford Law Review, 49, 1447-1486.
“Mitigation and the Study of Lives: The Roots of Violent Criminality and the Nature of Capital Justice.” In James Acker, Robert Bohm, and Charles Lanier, America’s Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction. Durham, NC: Carolina Academic Press, 343-377.
“Clarifying Life and Death Matters: An Analysis of Instructional Comprehension and Penalty Phase Arguments” (with M. Lynch), Law and Human Behavior, 21, 575-595.
“Psychological Secrecy and the Death Penalty: Observations on ‘the Mere Extinguishment of Life,’” Studies in Law, Politics, and Society, 16, 3-69.
“The Social Context of Capital Murder: Social Histories and the Logic of Capital Mitigation,” Santa Clara Law Review, 35, 547-609. [Reprinted in part in David Papke (Ed.), Law and Popular Culture, Lexis/Nexis Publications, 2011)].
“Taking Capital Jurors Seriously,” Indiana Law Journal, 70, 12231232.
“Death Penalty Opinion: Myth and Misconception,” California Criminal Defense Practice Reporter, 1995(1), 1-7.
“The Jurisprudence of Race and Meritocracy: Standardized Testing and ‘Race-Neutral’ Racism in the Workplace,” (with A. Hurtado), Law and Human Behavior, 18, 223-248.
“Comprehending Life and Death Matters: A Preliminary Study of California’s Capital Penalty Instructions” (with M. Lynch), Law and Human Behavior, 18, 411-434.
“Felony Voir Dire: An Exploratory Study of Its Content and Effect,” (with C. Johnson), Law and Human Behavior, 18, 487-506.
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1993
1992 1991

“Broken Promise: The Supreme Court’s Response to Social Science Research on Capital Punishment” (with D. Logan), Journal of Social Issues (special issue on the death penalty in the United States), 50, 75-101.
“Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death” (with L. Sontag and S. Costanzo), Journal of Social Issues (special issue on the death penalty in the United States), 50, 149-176. [Reprinted in Koosed, M. (Ed.), Capital Punishment. New York: Garland Publishing (1995).]
“Modern’ Death Qualification: New Data on Its Biasing Effects,” (with A. Hurtado and L. Vega), Law and Human Behavior, 18, 619633.
“Processing the Mad, Badly,” Contemporary Psychology, 39, 898899.
“Language is Power,” Contemporary Psychology, 39, 1039-1040.
“Infamous Punishment: The Psychological Effects of Isolation,” National Prison Project Journal, 8, 3-21. [Reprinted in Marquart, James & Sorensen, Jonathan (Eds.), Correctional Contexts: Contemporary and Classical Readings (pp. 428-437). Los Angeles: Roxbury Publishing (1997); Alarid, Leanne & Cromwell, Paul (Eds.), Correctional Perspectives: Views from Academics, Practitioners, and Prisoners (pp. 161-170). Los Angeles: Roxbury Publishing (2001).]
“Psychology and Legal Change: The Impact of a Decade,” Law and Human Behavior, 17, 371-398. [Reprinted in: Roesch, R., & Gagnon, N. (Eds.), Psychology and Law: Criminal and Civil Perspectives. Hampshire, UK: Ashgate (2007).]
“Death Penalty Attitudes: The Beliefs of Death-Qualified Californians,” (with A. Hurtado and L. Vega). Forum, 19, 43-47.
“The Influence of Race on Sentencing: A Meta-Analytic Review of Experimental Studies.” (with L. Sweeney). Special issue on Discrimination and the Law. Behavioral Science and Law, 10, 179195.
“The Fourteenth Amendment and Symbolic Legality: Let Them Eat
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1988 1986 1984
1983

Due Process,” Law and Human Behavior, 15, 183-204.
“In Defense of the Jury,” Contemporary Psychology, 33, 653-655.
“Civil Rights and Institutional Law: The Role of Social Psychology in Judicial Implementation,” (with T. Pettigrew), Journal of Community Psychology, 14, 267-277.
“Editor’s Introduction. Special Issue on Death Qualification,” Law and Human Behavior, 8, 1-6.
“On the Selection of Capital Juries: The Biasing Effects of Death Qualification,” Law and Human Behavior, 8, 121-132.
“Examining Death Qualification: Further Analysis of the Process Effect,” Law and Human Behavior, 8, 133-151.
“Evolving Standards and the Capital Jury,” Law and Human Behavior, 8, 153-158.
“Postscript,” Law and Human Behavior, 8, 159.
“Social Factfinding and Legal Decisions: Judicial Reform and the Use of Social Science.” In Muller, D., Blackman, D., and Chapman, A. (Eds.), Perspectives in Psychology and Law. New York: John Wiley, pp. 43-54.
“The Future of Crime and Personality Research: A Social Psychologist’s View,” in Laufer, W. and Day, J. (Eds.), Personality Theory, Moral Development, and Criminal Behavioral Behavior. Lexington, Mass.: Lexington Books, pp. 471-473.
“The Good, the Bad, and the Lawful: An Essay on Psychological Injustice,” in Laufer, W. and Day, J. (Eds.), Personality Theory, Moral Development, and Criminal Behavior. Lexington, Mass.: Lexington Books, pp. 107-117.
“Ordering the Courtroom, Psychologically,” Jurimetrics, 23, 321324.

1982

“Psychological Theory and Criminal Justice Policy: Law and Psychology in the ‘Formative Era,’” Law and Human Behavior, 6,

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1981 1980
1979

191-235. [Reprinted in Presser, S. and Zainaldin, J. (Eds.), Law and American History: Cases and Materials. Minneapolis, MN: West Publishing, 1989; and in C. Kubrin, T. Stucky & A. Tynes (Eds.) Introduction to Criminal Justice: A Sociological Perspective. Palo Alto, CA: Stanford University Press (2012).]
“Data and Decisions: Social Science and Judicial Reform,” in P. DuBois (Ed.), The Analysis of Judicial Reform. Lexington, Mass.: D.C. Heath, pp. 43-59.
“Employment Tests and Employment Discrimination: A Dissenting Psychological Opinion,” Industrial Relations Law Journal, 5, pp. 186.
“To Polygraph or Not: The Effects of Preemployment Polygraphing on Work-Related Attitudes,” (with L. White and M. Lopez), Polygraph, 11, 185-199.
“Death Qualification as a Biasing Legal Process,” The Death Penalty Reporter, 1 (10), pp. 1-5. [Reprinted in Augustus: A Journal of Progressive Human Sciences, 9(3), 9-13 (1986).]
“Juries and the Death Penalty: Readdressing the Witherspoon Question,” Crime and Delinquency, October, pp. 512-527.
“Psychology and Legal Change: On the Limits of a Factual Jurisprudence,” Law and Human Behavior, 6, 191-235. [Reprinted in Loh, Wallace (Ed.), Social Research and the Judicial Process. New York: Russell Sage, 1983.]
“The Creation of Legal Dependency: Law School in a Nutshell” (with M. Lowy), in R. Warner (Ed.), The People’s Law Review. Reading, Mass.: Addison-Wesley, pp. 36-41.
“Television Criminology: Network Illusions of Criminal Justice Realities” (with J. Manzolati), in E. Aronson (Ed.), Readings on the Social Animal. San Francisco, W.H. Freeman, pp. 125-136.
“A Psychologist Looks at the Criminal Justice System,” in A. Calvin (Ed.), Challenges and Alternatives to the Criminal Justice System. Ann Arbor: Monograph Press, pp. 77-85.

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“Social Psychology and the Criminal Law,” in P. Middlebrook (Ed.), Social Psychology and Modern Life. New York: Random House, pp. 671-711.
“Bargain Justice in an Unjust World: Good Deals in the Criminal Courts” (with M. Lowy), Law and Society Review, 13, pp. 633-650. [Reprinted in Kadish, Sanford and Paulsen, Robert (Eds.), Criminal Law and Its Processes. Boston: Little, Brown, 1983.]

1977

“Prison Behavior” (with P. Zimbardo), in B. Wolman (Ed.), The Encyclopedia of Neurology, Psychiatry, Psychoanalysis, and Psychology, Vol. IX, pp. 70-74.
“The Socialization into Criminality: On Becoming a Prisoner and a Guard” (with P. Zimbardo), in J. Tapp and F. Levine (Eds.), Law, Justice, and the Individual in Society: Psychological and Legal Issues (pp. 198-223). New York: Holt, Rinehart, and Winston.

1976

“The Play’s the Thing: Methodological Notes on Social Simulations,” in P. Golden (Ed.), The Research Experience, pp. 177190. Itasca, IL: Peacock.

1975

“The Blackboard Penitentiary: It’s Tough to Tell a High School from a Prison” (with P. Zimbardo). Psychology Today, 26ff.
“Implementing Research Results in Criminal Justice Settings,” Proceedings, Third Annual Conference on Corrections in the U.S. Military, Center for Advanced Study in the Behavioral Sciences, June 6-7.
“The Psychology of Imprisonment: Privation, Power, and Pathology” (with P. Zimbardo, C. Banks, and D. Jaffe), in D. Rosenhan and P. London (Eds.), Theory and Research in Abnormal Psychology. New York: Holt Rinehart, and Winston. [Reprinted in: Rubin, Z. (Ed.), Doing Unto Others: Joining, Molding, Conforming, Helping, Loving. Englewood Cliffs: Prentice-Hall, 1974. Brigham, John, and Wrightsman, Lawrence (Eds.) Contemporary Issues in Social Psychology. Third Edition. Monterey: Brooks/Cole, 1977. Calhoun, James Readings, Cases, and Study Guide for Psychology of Adjustment and Human Relationships. New York: Random House, 1978; translated as: La Psicologia del encarcelamiento: privacion, poder y patologia, Revisita de Psicologia Social, 1, 95-105 (1986).]

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1973

“Social Roles, Role-Playing, and Education” (with P. Zimbardo), The Behavioral and Social Science Teacher, Fall, 1(1), pp. 24-45. [Reprinted in: Zimbardo, P., and Maslach, C. (Eds.) Psychology For Our Times. Glenview, Ill.: Scott, Foresman, 1977. Hollander, E. and Hunt, R. (Eds.) Current Perspectives in Social Psychology. Third Edition. New York: Oxford University Press, 1978.]
“The Mind is a Formidable Jailer: A Pirandellian Prison” (with P. Zimbardo, C. Banks, and D. Jaffe), The New York Times Magazine, April 8, Section 6, 38-60. [Reprinted in Krupat, E. (Ed.), Psychology Is Social: Readings and Conversations in Social Psychology. Glenview, Ill.: Scott, Foresman, 1982.]
“Interpersonal Dynamics in a Simulated Prison” (with C. Banks and P. Zimbardo), International Journal of Criminology and Penology, 1, pp. 69-97. [Reprinted in: Steffensmeier, Darrell, and Terry, Robert (Eds.) Examining Deviance Experimentally. New York: Alfred Publishing, 1975; Golden, P. (Ed.) The Research Experience. Itasca, Ill.: Peacock, 1976; Leger, Robert (Ed.) The Sociology of Corrections. New York: John Wiley, 1977; A kiserleti tarsadalomlelektan foarma. Budapest, Hungary: Gondolat Konyvkiado, 1977; Johnston, Norman, and Savitz, L. Justice and Corrections. New York: John Wiley, 1978; Research Methods in Education and Social Sciences. The Open University, 1979; Goldstein, J. (Ed.), Modern Sociology. British Columbia: Open Learning Institute, 1980; Ross, Robert R. (Ed.), Prison Guard/ Correctional Officer: The Use and Abuse of Human Resources of Prison. Toronto: Butterworth’s 1981; Monahan, John, and Walker, Laurens (Eds.), Social Science in Law: Cases, Materials, and Problems. Foundation Press, 1985: Siuta, Jerzy (Ed.), The Context of Human Behavior. Jagiellonian University Press, 2001; Ferguson, Susan (Ed.), Mapping the Social Landscape: Readings in Sociology. St. Enumclaw, WA: Mayfield Publishing, 2001 & 2010; Pethes, Nicolas (Ed.), Menschenversuche (Experiments with Humans). Frankfurt, Germany: Suhrkamp Verlag, 2006.]
“A Study of Prisoners and Guards” (with C. Banks and P. Zimbardo). Naval Research Reviews, 1-17. [Reprinted in Aronson, E. (Ed.) Readings About the Social Animal. San Francisco: W.H. Freeman, 1980; Gross, R. (Ed.) Key Studies in Psychology. Third Edition. London: Hodder & Stoughton, 1999; Collier, C. (Ed.), Basic Themes in Law and Jurisprudence. Anderson Publishing, 2000.]

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American Psychological Association American Psychology and Law Society Law and Society Association National Council on Crime and Delinquency
INVITED ADDRESSES AND PAPERS PRESENTED AT PROFESSIONAL ACADEMIC MEETINGS AND RELATED SETTINGS (SELECTED)

2019 2018

“The Recent History of Corrections in Norway and the United States,” Plenary Address, Justice Reinvestment Summit, Salem, OR, February.
“The Dimensions of Suffering in Solitary Confinement,” Plenary Address, Washington College of Law at American University, Washington, DC, March.
“Implementing Norwegian Correctional Principles to Change Prison Culture in Oregon Prisons,” Invited Address, Oregon Department of Corrections Leadership Team, Salem, OR, June.
“Humanizing American Jails and Prisons,” Center for Court Innovation, International Summit, New York, NY, June.
“From the Stanford Prison Experiment to Supermax Prisons and Back Again: Changing the Narrative in Criminal Justice Reform,” Invited Address, Norwegian Correctional Academy, Oslo, Norway, September.
Plenary Address, “Perspectives on Solitary Confinement,” Northwestern University Law Review Symposium, Chicago, IL, November.
“The Art and Science of Capital Mitigation,” Federal Death Penalty Training Conference, Atlanta, Georgia, June.
“From Eastern State Penitentiary to Supermax Prisons,” Safe Alternatives to Segregation Conference, Vera Institute of Justice, Philadelphia, PA, June.

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Plenary Address, “Advancing Prisoners’ Rights Through Law and Psychology,” Denver Law Prisoners’ Advocates Conference, University of Denver Sturm College of Law, Denver, CO, October.

2017 2016

“In Praise of Positivism in the Age of ‘Fake News’ and ‘Alternative Facts,’” Research Frontiers Conference, Santa Cruz, CA, October.
“Neuroscience in Policy: Solitary Confinement in California,” Law & Neuroscience Conference, San Francisco, CA, February.
“In My Solitude: The Detrimental Effects of Solitary Confinement on the Brain,” Exploratorium-Fisher Bay Observation Gallery, San Francisco, CA, February.
“Brief History of Correctional Reform in the United States,” Community Corrections Partnership/Smart on Crime Community Forum, Santa Cruz Civic Auditorium, May.
“Reducing and Eliminating the Use of Solitary Confinement in Irish Prisons,” Joint Conference with the Irish Prison Service, Department of Justice, and Irish Penal Reform Trust, Dublin, Ireland, June.
“The Emerging Consensus on When, for How Long, and On Whom Solitary Confinement Should Ever Be Imposed,” Leadership, Culture and Managing Prisons: Knowledge Exchange between the USA and Europe (LEADERS), Trinity College, Dublin, Ireland, June.
“Sykes and Solitary: The Transformation of the Penal Subject in the Devolution from a ‘Society of Captives’ to Supermax Prisons,” Power and Authority in Modern Prisons: Essays in Memory of Gresham Sykes Workshop, Centre for Prison Research, Cambridge University, Cambridge, England, September.
“Context Is Everything: The Social Psychology of Imprisonment,” Joint USA/Scandinavian Correctional Exchange Program, Oslo, Norway, September.
“The Culture of Punishment,” American Justice Summit, New York, January.

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2015

“Mental Illness and Prison Confinement,” Conference on Race, Class, Gender and Ethnicity (CRCGE), University of North Carolina Law School, Chapel Hill, NC, February.
“Reforming the Treatment of California’s Mentally Ill Prisoners: Coleman and Beyond,” Meeting of the UC Consortium on Criminal Justice & Health, San Francisco, April.
“Bending Toward Justice? The Urgency (and Possibility) of Criminal Justice Reform,” UC Santa Cruz Alumni Association “Original Thinkers” Series, San Jose, CA (March), and Museum of Tolerance, Los Angeles (April).
“Isolation and Mental Health,” International and Inter-Disciplinary Perspectives on Prolonged Solitary Confinement, University of Pittsburgh Law School, Pittsburgh, PA, April.
“Mechanisms of Moral Disengagement in the Treatment of Prisoners” (with Joanna Weill), Conference of the Society for the Study of Social Issues, Minneapolis, June.
“Reforming the Criminal Justice System,” Bipartisan Summit on Criminal Justice Reform, American Civil Liberties Union/Koch Industries co-sponsored, Washington, DC, March.
“PrisonWorld: How Mass Incarceration Transformed U.S. Prisons, Impacted Prisoners, and Changed American Society,” Distinguished Faculty Research Lecture, UC Santa Cruz, March.
“Think Different, About Crime and Punishment,” Invited Lecture, UC Santa Cruz 50th Anniversary Alumni Reunion, April.
“The Intellectual Legacy of the Civil Rights Movement: Two FiftyYear Anniversaries,” College 10 Commencement Address, June.
“Race and Capital Mitigation,” Perspectives on Racial and Ethnic Bias for Capital and Non-Capital Lawyers, New York, September.
“The Dimensions of Suffering in Solitary Confinement,” Vera Institute of Justice, “Safe Alternatives to Solitary Confinement-A Human Dignity Approach” Conference, Washington, DC, September.
“Mental Health and Administrative Segregation,” Topical Working Group on the Use of Administrative Segregation in the U.S.,

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2014

National Institute of Justice/Department of Justice, Washington, DC, October.
“The Psychological Effects of Segregated Confinement,” Ninth Circuit Court of Appeals “Corrections Summit,” Sacramento, CA, November.
“How Can the University of California Address Mass Incarceration in California and Beyond?,” Keynote Address, Inaugural Meeting of the UC Consortium on Criminal Justice & Health, San Francisco, November.
“Solitary Confinement: Legal, Clinical, and Neurobiological Perspectives,” American Association for the Advancement of Science (AAAS), Chicago, IL February.
“Overcrowding, Isolation, and Mental Health Care, Prisoners’ Access to Justice: Exploring Legal, Medical, and Educational Rights,” University of California, School of Law, Irvine, CA, February.
“The Continuing Significance of Death Qualification” (with Joanna Weill), Annual Conference of the American Psychology-Law Society, New Orleans, March.
“Using Psychology at Multiple Levels to Transform Adverse Conditions of Confinement,” Society for the Study of Social Issues Conference, Portland, OR, June.
“Humane and Effective Alternatives to Isolated Confinement,” American Civil Liberties Union National Prison Project Convening on Solitary Confinement, Washington, DC, September.
“Community of Assessment of Public Safety,” Community Assessment Project of Santa Cruz County, Year 20, Cabrillo College, November.
“Overview of National Academy of Sciences Report on Causes and Consequences of High Rates of Incarceration,” Chief Justice Earl Warren Institute on Law & Social Policy, Boalt Hall Law School, Berkeley, CA, November.
“Presidential Panel, Overview of National Academy of Sciences Report on Causes and Consequences of High Rates of Incarceration,” American Society for Criminology, San Francisco, November.
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2013
2012 2011

“Presidential Panel, National Academy of Sciences Report on Consequences of High Rates of Incarceration on Individuals,” American Society for Criminology, San Francisco, November.
“Findings of National Academy of Sciences Committee on the Causes and Consequences of High Rates of Incarceration,” Association of Public Policy Analysis and Management Convention (APPAM), Albuquerque, NM, November.
“Politics and the Penal State: Mass Incarceration and American Society,” New York University Abu Dhabi International Scholars Program, Abu Dhabi, United Arab Emirates, December.
“Isolation and Mental Health,” Michigan Journal of Race and Law Symposium, University of Michigan School of Law, Ann Arbor, MI, February.
“Social Histories of Capital Defendants” (with Joanna Weill), Annual Conference of Psychology-Law Society, Portland, OR, March.
“Risk Factors and Trauma in the Lives of Capital Defendants” (with Joanna Weill), American Psychological Association Annual Convention, Honolulu, HI, August.
“Bending Toward Justice: Psychological Science and Criminal Justice Reform,” Invited Plenary Address, American Psychological Association Annual Convention, Honolulu, HI, August.
“Severe Conditions of Confinement and International Torture Standards,” Istanbul Center for Behavior Research and Therapy, Istanbul, Turkey, December.
“The Psychological Consequences of Long-term Solitary Confinement,” Joint Yale/Columbia Law School Conference on Incarceration and Isolation, New York, April.
“The Creation of the Penal State in America,” Managing Social Vulnerability: The Welfare and Penal System in Comparative Perspective, Central European University, Budapest, Hungary, July.
“Tensions Between Psychology and the Criminal Justice System: On the Persistence of Injustice,” opening presentation, “A Critical Eye
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2010 2009

on Criminal Justice” lecture series, Golden Gate University Law School, San Francisco, CA, January.
“The Decline in Death Penalty Verdicts and Executions: The Death of Capital Punishment?” Presentation at “A Legacy of Justice” week, at the University of California, Davis King Hall Law School, Davis, CA, January.
“Invited Keynote Address: The Nature and Consequences of Prison Overcrowding—Urgency and Implications,” West Virginia School of Law, Morgantown, West Virginia, March.
“Symposium: The Stanford Prison Experiment—Enduring Lessons 40 Years Later,” American Psychological Association Annual Convention, Washington, DC, August.
“The Dangerous Overuse of Solitary Confinement: Pervasive Human Rights Violations in Prisons, Jails, and Other Places of Detention” Panel, United Nations, New York, New York, October.
“Criminal Justice Reform: Issues and Recommendation,” United States Congress, Washington, DC, November.
“The Hardening of Prison Conditions,” Opening Address, “The Imprisoned” Arthur Liman Colloquium Public Interest Series, Yale Law School, New Haven, CN, March.
“Desensitization to Inhumane Treatment: The Pitfalls of Prison Work,” panel presentation at “The Imprisoned” Arthur Liman Colloquium Public Interest Series, Yale Law School, New Haven, CN, March.
“Mental Ill Health in Immigration Detention,” Department of Homeland Security/DOJ Office for Civil Rights and Civil Liberties, Washington, DC, September.
“Counting Casualties in the War on Prisoners,” Keynote Address, at “The Road to Prison Reform: Treating the Causes and Conditions of Our Overburdened System,” University of Connecticut Law School, Hartford, CN, February.
“Defining the Problem in California’s Prison Crisis: Overcrowding and Its Consequences,” California Correctional Crisis Conference,” Hastings Law School, San Francisco, CA, March.

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2008

“Prisonization and Contemporary Conditions of Confinement,” Keynote Address, Women Defenders Association, Boalt Law School, University of California, November.
“Media Criminology and the Empathic Divide: The Continuing Significance of Race in Capital Trials,” Invited Address, Media, Race, and the Death Penalty Conference, DePaul University School of Law, Chicago, IL, March.
“The State of the Prisons in California,” Invited Opening Address, Confronting the Crisis: Current State Initiatives and Lasting Solutions for California’s Prison Conditions Conference, University of San Francisco School of Law, San Francisco, CA, March.
“Mass Incarceration and Its Effects on American Society,” Invited Opening Address, Behind the Walls Prison Law Symposium, University of California Davis School of Law, Davis, CA, March.

2007

“The Psychology of Imprisonment: How Prison Conditions Affect Prisoners and Correctional Officers,” United States Department of Justice, National Institute of Corrections Management Training for “Correctional Excellence” Course, Denver, CO, May.
“Statement on Psychologists, Detention, and Torture,” Invited Address, American Psychological Association Annual Convention, San Francisco, CA, August.
“Prisoners of Isolation,” Invited Address, University of Indiana Law School, Indianapolis, IN, October.
“Mitigation in Three Strikes Cases,” Stanford Law School, Palo Alto, CA, September.
“The Psychology of Imprisonment,” Occidental College, Los Angeles, CA, November.

2006

“Mitigation and Social Histories in Death Penalty Cases,” Ninth Circuit Federal Capital Case Committee, Seattle, WA, May.
“The Crisis in the Prisons: Using Psychology to Understand and Improve Prison Conditions,” Invited Keynote Address, Psi Chi (Undergraduate Psychology Honor Society) Research Conference, San Francisco, CA, May.

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2005 2004

“Exoneration and ‘Wrongful Condemnation’: Why Juries Sentence to Death When Life is the Proper Verdict,” Faces of Innocence Conference, UCLA Law School, April.
“The Continuing Effects of Imprisonment: Implications for Families and Communities,” Research and Practice Symposium on Incarceration and Marriage, United States Department of Health and Human Services, Washington, DC, April.
“Ordinary People, Extraordinary Acts,” National Guantanamo Teach In, Seton Hall School of Law, Newark, NJ, October.
“The Next Generation of Death Penalty Research,” Invited Address, State University of New York, School of Criminal Justice, Albany, NY, October.
“The ‘Design’ of the System of Death Sentencing: Systemic Forms of ‘Moral Disengagement in the Administration of Capital Punishment, Scholar-in-Residence, invited address, Center for Social Justice, Boalt Hall School of Law (Berkeley), March.
“Humane Treatment for Asylum Seekers in U.S. Detention Centers,” United States House of Representatives, Washington, DC, March.
“Prisonworld: What Overincarceration Has Done to Prisoners and the Rest of Us,” Scholar-in-Residence, invited address, Center for Social Justice, Boalt Hall School of Law (Berkeley), March.
“Prison Conditions and Their Psychological Effects on Prisoners,” European Association for Psychology and Law, Vilnius, Lithuania, July.
“Recognizing the Adverse Psychological Effects of Incarceration, With Special Attention to Solitary-Type Confinement and Other Forms of ‘Ill-Treatment’ in Detention,” International Committee of the Red Cross, Training Program for Detention Monitors, Geneva, Switzerland, November.
“Prison Conditions in Post-“War on Crime” Era: Coming to Terms with the Continuing Pains of Imprisonment,” Boalt Law School Conference, After the War on Crime: Race, Democracy, and a New Reconstruction, Berkeley, CA, October.

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2003

“Cruel and Unusual? The United States Prison System at the Start of the 21st Century,” Invited speaker, Siebel Scholars Convocation, University of Illinois, Urbana, IL, October.
“The Social Historical Roots of Violence: Introducing Life Narratives into Capital Sentencing Procedures,” Invited Symposium, XXVIII International Congress of Psychology, Beijing, China, August.
“Death by Design: Capital Punishment as a Social Psychological System,” Division 41 (Psychology and Law) Invited Address, American Psychological Association Annual Convention, Honolulu, HI, July.
“The Psychology of Imprisonment and the Lessons of Abu Ghraib,” Commonwealth Club Public Interest Lecture Series, San Francisco, May.
“Restructuring Prisons and Restructuring Prison Reform,” Yale Law School Conference on the Current Status of Prison Litigation in the United States, New Haven, CN, May.
“The Effects of Prison Conditions on Prisoners and Guards: Using Psychological Theory and Data to Understand Prison Behavior,” United States Department of Justice, National Institute of Corrections Management Training Course, Denver, CO, May.
“The Contextual Revolution in Psychology and the Question of Prison Effects: What We Know about How Prison Affects Prisoners and Guards,” Cambridge University, Cambridge, England, April.
“Death Penalty Attitudes, Death Qualification, and Juror Instructional Comprehension,” American Psychology-Law Society, Annual Conference, Scottsdale, AZ, March.
“Crossing the Empathic Divide: Race Factors in Death Penalty Decisionmaking,” DePaul Law School Symposium on Race and the Death Penalty in the United States, Chicago, October.
“Supermax Prisons and the Prison Reform Paradigm,” PACE Law School Conference on Prison Reform Revisited: The Unfinished Agenda, New York, October.
“Mental Health Issues in Supermax Confinement,” European Psychology and Law Conference, University of Edinburgh, Scotland, July.
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2002 2001

“Roundtable on Capital Punishment in the United States: The Key Psychological Issues,” European Psychology and Law Conference, University of Edinburgh, Scotland, July.
“Psychology and Legal Change: Taking Stock,” European Psychology and Law Conference, University of Edinburgh, Scotland, July.
“Economic Justice and Criminal Justice: Social Welfare and Social Control,” Society for the Study of Social Issues Conference, January.
“Race, Gender, and Class Issues in the Criminal Justice System,” Center for Justice, Tolerance & Community and Barrios Unidos Conference, March.
“The Psychological Effects of Imprisonment: Prisonization and Beyond.” Joint Urban Institute and United States Department of Health and Human Services Conference on “From Prison to Home.” Washington, DC, January.
“On the Nature of Mitigation: Current Research on Capital Jury Decisionmaking.” American Psychology and Law Society, MidWinter Meetings, Austin, Texas, March.
“Prison Conditions and Death Row Confinement.” New York Bar Association, New York City, June.
“Supermax and Solitary Confinement: The State of the Research and the State of the Prisons.” Best Practices and Human Rights in Supermax Prisons: A Dialogue. Conference sponsored by University of Washington and the Washington Department of Corrections, Seattle, September.
“Mental Health in Supermax: On Psychological Distress and Institutional Care.” Best Practices and Human Rights in Supermax Prisons: A Dialogue. Conference sponsored by University of Washington and the Washington Department of Corrections, Seattle, September.
“On the Nature of Mitigation: Research Results and Trial Process and Outcomes.” Boalt Hall School of Law, University of California, Berkeley, August.

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2000 1999

“Toward an Integrated Theory of Mitigation.” American Psychological Association Annual Convention, San Francisco, CA, August.
Discussant: “Constructing Class Identities—The Impact of Educational Experiences.” American Psychological Association Annual Convention, San Francisco, CA, August.
“The Rise of Carceral Consciousness.” American Psychological Association Annual Convention, San Francisco, CA, August.
“On the Nature of Mitigation: Countering Generic Myths in Death Penalty Decisionmaking,” City University of New York Second International Advances in Qualitative Psychology Conference, March.
“Why Has U.S. Prison Policy Gone From Bad to Worse? Insights From the Stanford Prison Study and Beyond,” Claremont Conference on Women, Prisons, and Criminal Injustice, March.
“The Use of Social Histories in Capital Litigation,” Yale Law School, April.
“Debunking Myths About Capital Violence,” Georgetown Law School, April.
“Research on Capital Jury Decisionmaking: New Data on Juror Comprehension and the Nature of Mitigation,” Society for Study of Social Issues Convention, Minneapolis, June.
“Crime and Punishment: Where Do We Go From Here?” Division 41 Invited Symposium, “Beyond the Boundaries: Where Should Psychology and Law Be Taking Us?” American Psychological Association Annual Convention, Washington, DC, August.
“Psychology and the State of U.S. Prisons at the Millennium,” American Psychological Association Annual Convention, Boston, MA, August.
“Spreading Prison Pain: On the Worldwide Movement Towards Incarcerative Social Control,” Joint American Psychology-Law Society/European Association of Psychology and Law Conference, Dublin, Ireland, July.

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1998
1997 1996 1995

“Prison Conditions and Prisoner Mental Health,” Beyond the Prison Industrial Complex Conference, University of California, Berkeley, September.
“The State of US Prisons: A Conversation,” International Congress of Applied Psychology, San Francisco, CA, August.
“Deathwork: Capital Punishment as a Social Psychological System,” Invited SPPSI Address, American Psychological Association Annual Convention, San Francisco, CA, August.
“The Use and Misuse of Psychology in Justice Studies: Psychology and Legal Change: What Happened to Justice?,” (panelist), American Psychological Association Annual Convention, San Francisco, CA, August.
“Twenty Five Years of American Corrections: Past and Future,” American Psychology and Law Society, Redondo Beach, CA, March.
“Deconstructing the Death Penalty,” School of Justice Studies, Arizona State University, Tempe, AZ, October.
“Mitigation and the Study of Lives,” Invited Address to Division 41 (Psychology and Law), American Psychological Association Annual Convention, Chicago, August.
“The Stanford Prison Experiment and 25 Years of American Prison Policy,” American Psychological Association Annual Convention, Toronto, August.
“Looking Closely at the Death Penalty: Public Stereotypes and Capital Punishment,” Invited Address, Arizona State University College of Public Programs series on Free Speech, Affirmative Action and Multiculturalism, Tempe, AZ, April.
“Race and the Flaws of the Meritocratic Vision,” Invited Address, Arizona State University College of Public Programs series on Free Speech, Affirmative Action and Multiculturalism, Tempe, AZ, April.
“Taking Capital Jurors Seriously,” Invited Address, National Conference on Juries and the Death Penalty, Indiana Law School, Bloomington, February.

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1994 1992 1991 1990 1989
1987 1986

“Mitigation and the Social Genetics of Violence: Childhood Treatment and Adult Criminality,” Invited Address, Conference on the Capital Punishment, Santa Clara Law School, October, Santa Clara.
“Social Science and the Death Penalty,” Chair and Discussant, American Psychological Association Annual Convention, San Francisco, CA, August.
“Capital Jury Decisionmaking,” Invited panelist, American Psychological Association Annual Convention, Atlanta, GA, August.
“Racial Discrimination in Death Penalty Cases,” Invited presentation, NAACP Legal Defense Fund Conference on Capital Litigation, August, Airlie, VA.
“Psychology and Legal Change: The Impact of a Decade,” Invited Address to Division 41 (Psychology and Law), American Psychological Association Annual Convention, New Orleans, LA., August.
“Judicial Remedies to Pretrial Prejudice,” Law & Society Association Annual Meeting, Madison, WI, June.
“The Social Psychology of Police Interrogation Techniques” (with R. Liebowitz), Law & Society Association Annual Meeting, Madison, WI, June.
“The Fourteenth Amendment and Symbolic Legality: Let Them Eat Due Process,” APA Annual Convention, New York, N.Y. August.
“The Nature and Function of Prison in the United States and Mexico: A Preliminary Comparison,” InterAmerican Congress of Psychology, Havana, Cuba, July.
Chair, Division 41 Invited Address and “Commentary on the Execution Ritual,” APA Annual Convention, Washington, D.C., August.

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1985
1983 1982 1982 1982 1980

“Capital Punishment,” Invited Address, National Association of Criminal Defense Lawyers Annual Convention, Monterey, CA, August.
“The Role of Law in Graduate Social Science Programs” and “Current Directions in Death Qualification Research,” American Society of Criminology, San Diego, CA, November.
“The State of the Prisons: What’s Happened to ‘Justice’ in the ‘70s and ‘80s?” Invited Address to Division 41 (Psychology and Law); APA Annual Convention, Los Angeles, CA, August.
“The Role of Social Science in Death Penalty Litigation.” Invited Address in National College of Criminal Defense Death Penalty Conference, Indianapolis, IN, September.
“Psychology in the Court: Social Science Data and Legal DecisionMaking.” Invited Plenary Address, International Conference on Psychology and Law, University College, Swansea, Wales, July.
“Paradigms in Conflict: Contrasting Methods and Styles of Psychology and Law.” Invited Address, Social Science Research Council, Conference on Psychology and Law, Wolfson College, Oxford University, March.
“Law and Psychology: Conflicts in Professional Roles.” Invited paper, Western Psychological Association Annual Meeting, April.
“Using Psychology in Test Case Litigation,” panelist, American Psychological Association Annual Convention, Montreal, Canada, September.
“On the Selection of Capital Juries: The Biasing Effects of Death Qualification.” Paper presented at the Interdisciplinary Conference on Capital Punishment. Georgia State University, Atlanta, GA, April.
“Diminished Capacity and Imprisonment: The Legal and Psychological Issues,” Proceedings of the American Trial Lawyers Association, Mid-Winter Meeting, January.

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1975

“Social Change and the Ideology of Individualism in Psychology and Law.” Paper presented at the Western Psychological Association Annual Meeting, April.

SERVICE TO STAFF OR EDITORIAL BOARDS OF FOUNDATIONS, SCHOLARLY JOURNALS OR PRESSES

2016-present Editorial Consultant, Translational Issues in Psychological Science.

2015-present Editorial Consultant, Criminal Justice Review.

2014-present Editorial Board Member, Law and Social Inquiry.

2013-present Editorial Consultant, Criminal Justice and Behavior.

2012-present Editorial Consultant, Law and Society Review.

2011-present Editorial Consultant, Social Psychological and Personality Science.

2008-present Editorial Consultant, New England Journal of Medicine.

2007-present Editorial Board Member, Correctional Mental Health Reporter.

2007-present Editorial Consultant, Journal of Offender Rehabilitation.

2004-present Editorial Board Member, American Psychology and Law Society Book Series, Oxford University Press.

2000-2003 Reviewer, Society for the Study of Social Issues Grants-in-Aid Program.

2000-present Editorial Board Member, ASAP (on-line journal of the Society for the Study of Social Issues)

1997-present Editorial Board Member (until 2004), Consultant, Psychology, Public Policy, and Law

1991

Editorial Consultant, Brooks/Cole Publishing

1989

Editorial Consultant, Journal of Personality and Social Psychology

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1988-

Editorial Consultant, American Psychologist

1985

Editorial Consultant, American Bar Foundation Research Journal

1985-2006 Law and Human Behavior, Editorial Board Member

1985

Editorial Consultant, Columbia University Press

1985

Editorial Consultant, Law and Social Inquiry

1980-present Reviewer, National Science Foundation

1997

Reviewer, National Institutes of Mental Health

1980-present Editorial Consultant, Law and Society Review

1979-1985 Editorial Consultant, Law and Human Behavior

1997-present Editorial Consultant, Legal and Criminological Psychology

1993-present Psychology, Public Policy, and Law, Editorial Consultant

GOVERNMENTAL, LEGAL AND CRIMINAL JUSTICE CONSULTING
Training Consultant, Palo Alto Police Department, 1973-1974. Evaluation Consultant, San Mateo County Sheriff’s Department, 1974. Design and Training Consultant to Napa County Board of Supervisors, County
Sheriff’s Department (county jail), 1974. Training Consultation, California Department of Corrections, 1974. Consultant to California Legislature Select Committee in Criminal Justice, 1974,
1980-1981 (effects of prison conditions, evaluation of proposed prison legislation). Reviewer, National Science Foundation (Law and Social Science, Research Applied to National Needs Programs), 1978-present. Consultant, Santa Clara County Board of Supervisors, 1980 (effects of jail overcrowding, evaluation of county criminal justice policy).
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Consultant to Packard Foundation, 1981 (evaluation of inmate counseling and guard training programs at San Quentin and Soledad prisons).
Member, San Francisco Foundation Criminal Justice Task Force, 1980-1982 (corrections expert).
Consultant to NAACP Legal Defense Fund, 1982- present (expert witness, case evaluation, attorney training).
Faculty, National Judicial College, 1980-1983.
Consultant to Public Advocates, Inc., 1983-1986 (public interest litigation).
Consultant to California Child, Youth, Family Coalition, 1981-82 (evaluation of proposed juvenile justice legislation).
Consultant to California Senate Office of Research, 1982 (evaluation of causes and consequences of overcrowding in California Youth Authority facilities).
Consultant, New Mexico State Public Defender, 1980-1983 (investigation of causes of February, 1980 prison riot).
Consultant, California State Supreme Court, 1983 (evaluation of county jail conditions).
Member, California State Bar Committee on Standards in Prisons and Jails, 1983.
Consultant, California Legislature Joint Committee on Prison Construction and Operations, 1985.
Consultant, United States Bureau of Prisons and United States Department of the Interior (Prison History, Conditions of Confinement Exhibition, Alcatraz Island), 1989-1991.
Consultant to United States Department of Justice, 1980-1990 (evaluation of institutional conditions).
Consultant to California Judicial Council (judicial training programs), 2000.
Consultant to American Bar Association/American Association for Advancement of Science Task Force on Forensic Standards for Scientific Evidence, 2000.
Invited Participant, White House Forum on the Uses of Science and Technology to Improve Crime and Prison Policy, 2000.
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Member, Joint Legislative/California Department of Corrections Task Force on Violence, 2001.
Consultant, United States Department of Health & Human Services/Urban Institute, “Effects of Incarceration on Children, Families, and Low-Income Communities” Project, 2002.
Detention Consultant, United States Commission on International Religious Freedom (USCIRF). Evaluation of Immigration and Naturalization Service Detention Facilities, July, 2004-2005.
Consultant, International Committee of the Red Cross, Geneva, Switzerland, Consultant on international conditions of confinement.
Member, Institutional Research External Review Panel, California Department of Corrections, November, 2004-2008.
Consultant, United States Department of Health & Human Services on programs designed to enhance post-prison success and community reintegration, 2006.
Consultant/Witness, U.S. House of Representatives, Judiciary Committee, Evaluation of legislative and budgetary proposals concerning the detention of undocumented persons, February-March, 2005.
Invited Expert Witness to National Commission on Safety and Abuse in America’s Prisons (Nicholas Katzenbach, Chair); Newark, New Jersey, July 19-20, 2005.
Testimony to the United States Senate, Judiciary Subcommittee on the Constitution, Civil Rights, and Property Rights (Senators Brownback and Feingold, co-chairs), Hearing on “An Examination of the Death Penalty in the United States,” February 7, 2006.
National Council of Crime and Delinquency “Sentencing and Correctional Policy Task Force,” member providing written policy recommendations to the California legislature concerning overcrowding crisis in the California Department of Corrections and Rehabilitation.
Trainer/Instructor, Federal Bureau of Prisons and United States Department of Justice, “Correctional Excellence” Program, providing instruction concerning conditions of confinement and psychological stresses of living and working in correctional environments to mid-level management corrections professionals, May, 20042008.
Invited Expert Witness, California Commission on the Fair Administration of Justice, Public Hearing, Santa Clara University, March 28, 2008.
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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 252 of 283
Invited Participant, Department of Homeland Security, Mental Health Effects of Detention and Isolation, 2010.
Invited Witness, Before the California Assembly Committee on Public Safety, August 23, 2011.
Consultant, “Reforming the Criminal Justice System in the United States” Joint Working Group with Senator James Webb and Congressional Staffs, 2011 Developing National Criminal Justice Commission Legislation.
Invited Participant, United Nations, Forum with United Nations Special Rapporteur on Torture Concerning the Overuse of Solitary Confinement, New York, October, 2011.
Invited Witness, Before United States Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights Hearing on Solitary Confinement, June 19, 2012.
Member, National Academy of Sciences Committee to Study the Causes and Consequences of the High Rate of Incarceration in the United States, 2012-2014.
Member, National Academy of Sciences Briefing Group, briefed media and public officials at Pew Research Center, Congressional staff, and White House staff concerning policy implications of The Growth of Incarceration in the United States: Exploring the Causes and Consequences (2014), April 30-May 1.
Consultant to United States Department of Justice and White House Domestic Policy Council on formulation of federal policy concerning use of segregation confinement, 2015.
PRISON AND JAIL CONDITIONS EVALUATIONS AND LITIGATION
Hoptowit v. Ray [United States District Court, Eastern District of Washington, 1980; 682 F.2d 1237 (9th Cir. 1982)]. Evaluation of psychological effects of conditions of confinement at Washington State Penitentiary at Walla Walla for United States Department of Justice.
Wilson v. Brown (Marin Country Superior Court; September, 1982, Justice Burke). Evaluation of effects of overcrowding on San Quentin mainline inmates.
Thompson v. Enomoto (United States District Court, Northern District of California, Judge Stanley Weigel, 1982 and continuing). Evaluation of conditions of confinement on Condemned Row, San Quentin Prison.
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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 253 of 283
Toussaint v. McCarthy [United States District Court, Northern District of California, Judge Stanley Weigel, 553 F. Supp. 1365 (1983); 722 F. 2d 1490 (9th Cir. 1984) 711 F. Supp. 536 (1989)]. Evaluation of psychological effects of conditions of confinement in lockup units at DVI, Folsom, San Quentin, and Soledad.
In re Priest (Proceeding by special appointment of the California Supreme Court, Judge Spurgeon Avakian, 1983). Evaluation of conditions of confinement in Lake County Jail.
Ruiz v. Estelle [United States District Court, Southern District of Texas, Judge William Justice, 503 F. Supp. 1265 (1980)]. Evaluation of effects of overcrowding in the Texas prison system, 1983-1985.
In re Atascadero State Hospital (Civil Rights of Institutionalized Persons Act of 1980 action). Evaluation of conditions of confinement and nature of patient care at ASH for United States Department of Justice, 1983-1984.
In re Rock (Monterey County Superior Court 1984). Appointed to evaluate conditions of confinement in Soledad State Prison in Soledad, California.
In re Mackey (Sacramento County Superior Court, 1985). Appointed to evaluate conditions of confinement at Folsom State Prison mainline housing units.
Bruscino v. Carlson (United States District Court, Southern District of Illinois 1984 1985). Evaluation of conditions of confinement at the United States Penitentiary at Marion, Illinois [654 F. Supp. 609 (1987); 854 F.2d 162 (7th Cir. 1988)].
Dohner v. McCarthy [United States District Court, Central District of California, 1984-1985; 636 F. Supp. 408 (1985)]. Evaluation of conditions of confinement at California Men’s Colony, San Luis Obispo.
Invited Testimony before Joint Legislative Committee on Prison Construction and Operations hearings on the causes and consequences of violence at Folsom Prison, June, 1985.
Stewart v. Gates [United States District Court, 1987]. Evaluation of conditions of confinement in psychiatric and medical units in Orange County Main Jail, Santa Ana, California.
Duran v. Anaya (United States District Court, 1987-1988). Evaluation of conditions of confinement in the Penitentiary of New Mexico, Santa Fe, New Mexico [Duran v. Anaya, No. 77-721 (D. N.M. July 17, 1980); Duran v. King, No. 77-721 (D. N.M. March 15, 1984)].
40

Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 254 of 283
Gates v. Deukmejian (United States District Court, Eastern District of California, 1989). Evaluation of conditions of confinement at California Medical Facility, Vacaville, California.
Kozeak v. McCarthy (San Bernardino Superior Court, 1990). Evaluation of conditions of confinement at California Institution for Women, Frontera, California.
Coleman v. Gomez (United States District Court, Eastern District of California, 1992-3; Magistrate Moulds, Chief Judge Lawrence Karlton, 912 F. Supp. 1282 (1995). Evaluation of study of quality of mental health care in California prison system, special mental health needs at Pelican Bay State Prison.
Madrid v. Gomez (United States District Court, Northern District of California, 1993, District Judge Thelton Henderson, 889 F. Supp. 1146 (N.D. Cal. 1995). Evaluation of conditions of confinement and psychological consequences of isolation in Security Housing Unit at Pelican Bay State Prison, Crescent City, California.
Clark v. Wilson, (United States District Court, Northern District of California, 1998, District Judge Fern Smith, No. C-96-1486 FMS), evaluation of screening procedures to identify and treatment of developmentally disabled prisoners in California Department of Corrections.
Turay v. Seling [United States District Court, Western District of Washington (1998)]. Evaluation of Conditions of Confinement-Related Issues in Special Commitment Center at McNeil Island Correctional Center.
In re: The Commitment of Durden, Jackson, Leach, & Wilson. [Circuit Court, Palm Beach County, Florida (1999).] Evaluation of Conditions of Confinement in Martin Treatment Facility.
Ruiz v. Johnson [United States District Court, Southern District of Texas, District Judge William Wayne Justice, 37 F. Supp. 2d 855 (SD Texas 1999)]. Evaluation of current conditions of confinement, especially in security housing or “high security” units.
Osterback v. Moore (United States District Court, Southern District of Florida (97-2806-CIV-MORENO) (2001) [see, Osterback v. Moore, 531 U.S. 1172 (2001)]. Evaluation of Close Management Units and Conditions in the Florida Department of Corrections.
Valdivia v. Davis (United States District Court, Eastern District of California, 2002). Evaluation of due process protections afforded mentally ill and developmentally disabled parolees in parole revocation process.
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Ayers v. Perry (United States District Court, New Mexico, 2003). Evaluation of conditions of confinement and mental health services in New Mexico Department of Corrections “special controls facilities.” Disability Law Center v. Massachusetts Department of Corrections (Federal District Court, Massachusetts, 2007). Evaluation of conditions of confinement and treatment of mentally ill prisoners in disciplinary lockup and segregation units. Plata/Coleman v. Schwarzenegger (Ninth Circuit Court of Appeals, Three-Judge Panel, 2008). Evaluation of conditions of confinement, effects of overcrowding on provision of medical and mental health care in California Department of Corrections and Rehabilitation. [See Brown v. Plata, 563 U.S. 493 (2011).] Ashker v. Brown (United States District Court, Northern District of California, 2013-2015). Evaluation of the effect of long-term isolated confinement in Pelican Bay State Prison Security Housing Unit. Parsons v. Ryan (United States District Court, District of Arizona, 2012-14). Evaluation of conditions of segregated confinement for mentally ill and nonmentally ill prisoners in statewide correctional facilities. [See Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014)]. Braggs v. Dunn (United States District Court, Middle District of Alabama, 20152017). Evaluation of mental health care delivery system, overcrowded conditions of confinement, and use of segregation in statewide prison system. [See Braggs v. Dunn, 257 F. Supp. 3d 1171 (M.D. Ala. 2017).]
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EXHIBIT 36

InterimCasGe u8:2i0d-cav-n01c0e28-oPXn MDocaunmeangt 2e-1mFeilend t04o/21f/2C0oPraogne 2a5v7 iorf 2u8s3 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

Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 258 of 283
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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 259 of 283 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 260 of 283 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 261 of 283 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 262 of 283 ο 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 263 of 283 √ 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 264 of 283 ο 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 265 of 283 √ 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 266 of 283
Hygiene
√ 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 267 of 283 ο 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 268 of 283 √ 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 269 of 283 √ 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 270 of 283 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 271 of 283 √ 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 272 of 283 ο If cohorting is necessary:
 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 273 of 283 √ 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 274 of 283 √ 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 275 of 283 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.
√ 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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Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 276 of 283 ο 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.
20

Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 277 of 283 √ 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.
21

Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 278 of 283 √ 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.
22

Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 279 of 283 ο 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.
23

Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 280 of 283 ο 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

Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 281 of 283 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

Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 282 of 283
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

Case 8:20-cv-01028-PX Document 2-1 Filed 04/21/20 Page 283 of 283
EXHIBIT 37

 Case 8:20-cv-01028-PX Document 24 Filed 04/23/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH SETH, et al.,

*

Individually and on behalf of a class

of similarly situated persons,

*

Plaintiffs,

*

v.

*

Civil Action No. 8:20-cv-01028-PX

*

MARY LOU MCDONOUGH,

In her official capacity as

*

Director of the Prince George’s County

Department of Corrections,

*

Defendant.

* *** ORDER

As discussed in the recorded teleconference today, April 23, 2020:

1. Defendant is ordered to file a Response to Plaintiffs’ Motion for a Temporary

Restraining Order, ECF No. 3-1, by April 25, 2020. Defendant must file as

attachments evidence responsive to the topics included in Attachment A to this

Order.

2. Plaintiffs’ Reply is due by April 27, 2020.

3. Parties are to submit a joint recommendation for an Independent Inspector by April

27, 2020. If Parties are unable to agree on an inspector, each party is to propose two

recommendations, along with CVs and a letter, no longer than three pages, with

supporting grounds for selection.

4. Parties are instructed to file documents containing protected health information and

other sensitive information under seal with an accompanying motion.

5. Plaintiffs’ Motion to Certify Class, ECF No. 4-1, is held in abeyance until resolution

Case 8:20-cv-01028-PX Document 24 Filed 04/23/20 Page 2 of 3 of Plaintiffs’ Motion for a Temporary Restraining Order, ECF No. 3-1.

4/23/2020 Date

/S/ Paula Xinis United States District Judge

2

Case 8:20-cv-01028-PX Document 24 Filed 04/23/20 Page 3 of 3

Case 8:20-cv-01028-PX Document 24-1 Filed 04/23/20 Page 1 of 3 ATTACHMENT A
Defendant McDonough, on behalf of Prince Georges County Detention Center (the Facility) shall submit information related to the following topics, by exhibit and/or sworn declaration from leadership within the Facility. This Attachment is illustrative, not exhaustive, and is intended to guide but not limit Defendant’s response to the Plaintiffs’ Motion for Temporary Restraining Order. Defendant shall file the information as attachments to her Response due April 25, 2020. Evidence submitted should be keyed to the topic headings below. 1. All Relevant Written Policies, Practices, Procedures, or Guidance issued to staff, related to COVID-19 Information related to COVID-19 education, awareness, and implementation of protocol for staff and detainees (to include training, education, written postings, and written materials disseminated within the Facility to staff or detainees on all aspects of COVID, such as cleaning, social distancing, symptoms, etc.) 2. Screening and Testing for COVID 19 Screening
A. Dates Facility began screening visitors, staff, and detainees for COVID-19 symptoms
B. Procedures used to screen staff, visitors, and detainees for COVID-19 symptoms. If the screening procedure has changed over time, describe changes since March 1, 2020.
C. Screening, testing, quarantine procedures related to COVID-19 for new detainees
Testing D. Number of COVID-19 tests administered to date (staff and detainees) and results (+, -, pending)
E. Number of tests administered per day since March 1, 2020
F. Number of COVID-19 test kits available currently
G. Criteria and manner for determining when to test staff and detainees 3. Response to suspected and confirmed COVID-19 + detainees and staff
A. Criteria and manner for identifying detainees or staff suspected of having COVID-19 in addition to screening above (e.g. sick call, detainee observation, Officer observation)
B. Isolation or quarantine procedures for detainees suspected of COVID-19 (to include movement in Facility, where housed, whether exposed in medical unit, bull pen, or other common area with non-COVID detainees in medical for other reasons, and separation protocol, if any)
1

Case 8:20-cv-01028-PX Document 24-1 Filed 04/23/20 Page 2 of 3 ATTACHMENT A
C. Conditions of confinement for suspected and confirmed COVID-19 + detainees (e.g., medical, housing, food, hygiene); how implemented (medical unit?); movement in Facility
D. Criteria for when detainees who had COVID-19 are permitted return to general population, and for when staff who had COVID-19 are permitted return to work
E. In response to Plaintiffs’ “over-detention” claims, see ECF No. 3 at 27: Number of detainees held after satisfaction of release criteria and length of each over-detention
4. Detainee Living Conditions during COVID-19 A. General information on the structure, size, and function of Facility (e.g. layout of housing units, cafeteria, medical, visitation); number of available and occupied beds; staffing and occupancy ratio in units
B. Current number of detainees housed at Facility; broken down by Unit, including Medical, quarantine, isolation
C. Staffing changes in general housing, medical, quarantine, and isolation as a result of COVID19 (e.g. staff out sick or in quarantine, change in medical personnel)
D. Detainees’ access to counsel – (frequency, duration, privacy - in person, by phone, by mail)
E. Detainees’ communication with family (availability, frequency, claim PID not working, in addition or in lieu of communication with counsel)
F. Provision of food to detainees (how, what, when, by whom)
G. Cleaning and sanitation of housing units (who does it, availability of supplies, what kind of supplies)
H. Hygiene – availability of hot water, showers, soap, cleaning supplies, and other PPE for detainees – provided by Facility (free? How much? How often) versus those that must be purchased by detainee
5. Medical care during COVID-19 A. Detainee access to medical care - must detainees pay for medical care currently? Historically? If the Facility policy on payment has changed, when and why did it change?
B. Length of time between sick call and medical attention
2

Case 8:20-cv-01028-PX Document 24-1 Filed 04/23/20 Page 3 of 3 ATTACHMENT A
C. Urgent or acute care call process (e.g. what happens if a detainee suddenly becomes acutely ill)
D. Current capacity of Medical Unit – is the unit fully occupied? Contingency plan? E. Medical Records: Where and how kept, in what format (e.g. electronic), accessibility to
records for Plaintiff counsel in this case, criminal defense counsel, court 6. Grievances
A. Actual practices to afford detainees access to grievance procedure during COVID-19 pandemic
B. Number of grievances related to lack of treatment, care, sanitation, housing etc. related to COVID-19 since March 1, 2020 to present.
3

 Case 8:20-cv-01028-PX Document 53 Filed 05/01/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH SETH, et al.,

*

Individually and on behalf of a class

of similarly situated persons,

*

Plaintiffs,

*

v.

*

Civil Action No. 8:20-cv-01028-PX

*

MARY LOU MCDONOUGH,

In her official capacity as

*

Director of the Prince George’s County

Department of Corrections,

*

Defendant.

*

***

ORDER

Pursuant to Federal Rule of Evidence 706, the Court hereby appoints as an expert witness in the field of medicine, infectious diseases, and public health in the corrections setting, Carlos Franco-Paredes, MD, MPH, to provide information to the Court responsive to the Plaintiffs’ Motion for Temporary Restraining Order (ECF No. 3), and render an expert opinion on the current health and safety of Plaintiff-detainees at the Prince George’s County Detention Center (the Facility) in light of the COVID-19 pandemic, including but not limited to the Facility’s compliance with the pertinent CDC guidelines and, if warranted, issue recommendations regarding corrective measures to address the presence of the COVID-19 virus at the Facility.

Further, the Court ORDERS that Dr. Franco-Paredes and his associates1 shall be granted access to the Facility unannounced and bring with them laptops or other similar equipment with internet access, cameras, cell phones, writing implements, and any other equipment required to conduct their site visits. Once in the Facility, Dr. Franco-Paredes shall be permitted to inspect areas of the facilities without limitation and shall be permitted to speak with staff and inmates in confidence and outside of the presence of Facility supervisors and staff. The inspection shall take place during normal business hours (i.e. 8 a.m. to 5 p.m.) on any day of the week.

To the extent the inspection, review, and report includes protected health or other sensitive information, it shall be kept in restricted or under seal access pursuant to this Court’s protective Order to be issued by separate filing.

1 Dr. Franco-Paredes shall provide to all counsel the names of all individuals who will accompany him on his inspection.

Case 8:20-cv-01028-PX Document 53 Filed 05/01/20 Page 2 of 2
It is further ORDERED that Dr. Franco-Paredes shall be given a copy of the FULL record in this case to date. Counsel for Plaintiffs shall transmit, by email, each ECF filing in PDF format by close of business today.
It is further ORDERED that Dr. Franco-Paredes may confer with counsel for the Plaintiffs and Defendant each, ex parte, and for no more than one hour.
It is further ORDERED that Dr. Franco-Paredes shall be permitted to review all pertinent Facility records and documents, electronic or otherwise, and video footage in connection with their investigation.
The Facility is also ORDERED to preserve all pertinent documents and video footage.
It is further ORDERED that the Facility shall make all supervisors and staff available for interviews, including telephonic interviews conducted by Dr. Franco-Paredes or his associates immediately and without undue delay.
It is further ORDERED that the Facility provide a sufficient supply of full personal protective equipment (PPE) to safely enable their inspections at the time of those inspections and/or permit Dr. Franco-Paredes and his associates to bring within the facility such PPE as Dr. FrancoParedes deems necessary.
As previously discussed, the parties are to bear the cost of Dr. Franco-Paredes’ services equally. The parties shall meet and confer regarding the manner and timing of such payment and make every effort to arrive at agreement without further Court involvement.

5/1/2020 Date

/S/ Paula Xinis United States District Judge

2

 Case 8:20-cv-01028-PX Document 70 Filed 05/13/20 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH SETH, et al. Plaintiffs/Petitioners
vs. MARY LOU MCDONOUGH
Defendant/Respondent.

* * * *
* Case No: PX 20-cv-01028
* * * *

DEFENDANT MARY LOU MCDONOUGH’S ANSWER TO CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRITS OF HABEAS CORPUS PURSUANT TO 28 U.S.C. §2241

Defendant Director Mary Lou McDonough, by and through the undersigned, and in answer to

the Class Action Complaint for Declaratory and Injunctive Relief and Petition for Writs of Habeas

Corpus pursuant to 28 U.S.C. §2241 filed herein, states as follow:

STATEMENT OF THE CASE

1. That Defendant denies the allegations in paragraph 1 of the Complaint.

2. That Defendant denies the allegations in paragraph 2 of the Complaint.

3. That Defendant denies the allegations in paragraph 3 of the Complaint.

4. That Defendant admits the allegations in paragraph 4 of the Complaint.

5. That Defendant denies the allegations in paragraph 5 of the Complaint.

6. That Defendant denies the allegations in paragraph 6 of the Complaint.

7. That Defendant denies the allegations in paragraph 7 of the Complaint.

8. That Defendant denies the allegations in paragraph 8 of the Complaint.

9. That Defendant denies the allegations in paragraph 9 of the Complaint.

10. That Defendant denies the allegations in paragraph 10 of the Complaint.

Case 8:20-cv-01028-PX Document 70 Filed 05/13/20 Page 2 of 16
11. To the extent that Plaintiffs’ statement is a question of law, no answer is required. JURISDICTION AND VENUE
12. That Defendant admits that this Court has jurisdiction pursuant to 28 U.S.C. 1331, 1343(a) and denies the remaining allegations in paragraph 12 of the Complaint.
13. That Defendant admit the allegations in paragraph 13 of the Complaint. PARTIES
14. That Defendant denies that Keith Seth is currently detained at the Prince George’s County Correctional Center. Defendant has insufficient knowledge to either admit or deny Plaintiff’s allegation that “he has chronic bronchitis for which was hospitalized last year.” Defendant is without sufficient information and knowledge to either admit or deny “[Plaintiff] is currently experiencing symptoms of COID-19, including loss of taste, diarrhea, coughing, and severe shortness of breath.” Defendant denies the Keith Seth would be required to pay for medical treatment of COVID-19 symptoms. Defendant denies that Plaintiff has not received mental health treatment.
15. That Defendant admits that David Smith is currently detained pretrial in Housing Unit 9 at the Prince George’s County Correctional Center. Defendant denies that Plaintiff “suffers from chronic bronchitis. Since the outbreak, the Jail has not provided Mr. Smith with needed mental health treatment.” Defendant admits that “Mr. Smith filed a motion for bond reconsideration on April 8, 2020. That the motion is scheduled for a hearing on April 24, 2020.”
16. That Defendant denies that Plaintiff Mario Burch is currently detained pretrial in Housing Unit 8 at the Prince George’s County Correctional Center. Defendant denies that no one has cleaned or sanitized any surfaces in the housing unit. Defendant is without sufficient information and knowledge to either admit or deny Plaintiff’s fear of contracting COVID-19.

Case 8:20-cv-01028-PX Document 70 Filed 05/13/20 Page 3 of 16
17. That Defendant admits that John Doe No. 1 is an inmate at the Prince George’s County Detention Center. Defendant is without sufficient information and knowledge to either admit or deny remaining allegations in paragraph 17 of the Complaint.
18. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 18 of the Complaint for John Doe No. 2.
19. That Defendant admits that John Doe No. 3 is an inmate at the Prince George’s County Detention Center. Defendant is without sufficient information and knowledge to either admit or deny remaining allegations in paragraph 19 of the Complaint.
20. That Defendant admits that John Doe No. 4 is an inmate at the Prince George’s County Detention Center. Defendant is without sufficient information and knowledge to either admit or deny remaining allegations in paragraph 20 of the Complaint.
21. That Defendant admits that John Doe No. 5 is an inmate at the Prince George’s County Detention Center. Defendant is without sufficient information and knowledge to either admit or deny remaining allegations in paragraph 21of the Complaint.
22. That Defendant admits the allegations in paragraph 22 of the Complaint. FACTUAL ALLEGATIONS
23. That Defendant admits the allegations in paragraph 23 of the Complaint. 24. That Defendant admits the allegations in paragraph 24 of the Complaint. 25. That Defendant admits the allegations in paragraph 25 of the Complaint. 26. That Defendants admits the allegations in paragraph 26 of the Complaint. 27. That Defendants admits the allegations in paragraph 27 of the Complaint. 28. That Defendant admits the allegations in paragraph 28 of the Complaint.

Case 8:20-cv-01028-PX Document 70 Filed 05/13/20 Page 4 of 16
29. That Defendant admits the allegations in paragraph 29 of the Complaint. 30. That Defendant admits the allegations in paragraph 30 of the Complaint. 31. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 31 of the Complaint. 32. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 32 of the Complaint. 33. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 33 of the Complaint. 34. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 34 of the Complaint. 35. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 35 of the Complaint. 36. That Defendant admits the allegations in paragraph 36 of the Complaint. 37. That Defendant admits the allegations in paragraph 37 of the Complaint. 38. That Defendant admits the allegations in paragraph 38 of the Complaint. 39. That Defendant admits the allegations in paragraph 39 of the Complaint. 40. That Defendant admits the allegations in paragraph 40 of the Complaint. 41. That Defendant admits the allegations in paragraph 41 of the Complaint. 42. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 42 of the Complaint. 43. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 43 of the Complaint.

Case 8:20-cv-01028-PX Document 70 Filed 05/13/20 Page 5 of 16
44. That Defendant admits the allegations in paragraph 44 of the Complaint. 45. That Defendant admits the allegations in paragraph 45 of the Complaint. 46. That Defendant admits the allegations in paragraph 46 of the Complaint. 47. That Defendant admits the allegations in paragraph 47 of the Complaint. 48. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 48 of the Complaint. 49. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 49 of the Complaint. 50. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 50 of the Complaint. 51. That Defendant admits the allegations in paragraph 51 of the Complaint. 52. That Defendant admits the allegations in paragraph 52 of the Complaint. 53. That Defendant admits the allegations in paragraph 53 of the Complaint. 54. That Defendant admits the allegations in paragraph 54 of the Complaint. 55. That Defendant admits the allegations in paragraph 55 of the Complaint. 56. That Defendant admits the allegations in paragraph 56 of the Complaint. 57. That Defendant admits the allegations in paragraph 57 of the Complaint. 58. That Defendant admits the allegations in paragraph 58 of the Complaint. 59. That Defendant admits the allegations in paragraph 59 of the Complaint. 60. That Defendant admits the allegations in paragraph 60 of the Complaint. 61. That Defendant admits the allegations in paragraph 61 of the Complaint. 62. That Defendant is without sufficient information and knowledge to either admit or deny

Case 8:20-cv-01028-PX Document 70 Filed 05/13/20 Page 6 of 16
the allegations in paragraph 62 of the Complaint. 63. That Defendant is without sufficient information and knowledge to either admit or deny
the allegations in paragraph 63 of the Complaint. 64. That Defendant is without sufficient information and knowledge to either admit or deny
the allegations in paragraph 64 of the Complaint. 65. That Defendant is without sufficient information and knowledge to either admit or deny
the allegations in paragraph 65 of the Complaint. 66. That Defendant admits the allegations in paragraph 66 of the Complaint. 67. That Defendant denies the allegations in paragraph 67 of the Complaint. 68. That Defendant admits the allegations in paragraph 68 of the Complaint. 69. That Defendant admits the allegations in paragraph 69 of the Complaint. 70. That Defendant admits the allegations in paragraph 70 of the Complaint. 71. That Defendant admits the allegations in paragraph 71 of the Complaint. 72. That Defendant denies the allegations in paragraph 72 of the Complaint. 73. That Defendant admits the allegations in paragraph 73 of the Complaint. 74. That Defendant admits the allegations in paragraph 74 of the Complaint. 75. That Defendant admits the allegations in paragraph 75 of the Complaint. 76. That Defendant denies the allegations in paragraph 76 of the Complaint. 77. That Defendant denies the allegations in paragraph 77 of the Complaint. 78. That Defendant denies the allegations in paragraph 78 of the Complaint. 79. That Defendant admits the allegations in paragraph 79 of the Complaint. 80. That Defendant admits the allegations in paragraph 80 of the Complaint.

Case 8:20-cv-01028-PX Document 70 Filed 05/13/20 Page 7 of 16
81. That Defendant denies the allegations in paragraph 81 of the Complaint. 82. That Defendant admits the allegations in paragraph 82 of the Complaint. 83. That Defendant denies the allegations in paragraph 83 of the Complaint. 84. Defendant admits that initially inmates were not provided hand sanitizer, but denies that inmates are not currently provided hand sanitizer and denies the remaining allegations in paragraph 84 of the Complaint. 85. That Defendant denies the allegations in paragraph 85 of the Complaint. 86. That Defendant denies the allegations in paragraph 86 of the Complaint. 87. That Defendant denies the allegations in paragraph 87 of the Complaint. 88. That Defendant denies the allegations in paragraph 88 of the Complaint. 89. That Defendant denies the allegations in paragraph 89 of the Complaint. 90. Defendant admits that inmates do not have their own cleaning supplies, but are provided cleaning supplies as requested and paper towels are not rationed. 91. That Defendant denies the allegations in paragraph 91 of the Complaint. 92. That Defendant admits the allegations in paragraph 92 of the Complaint. 93. That Defendant denies the allegations in paragraph 93 of the Complaint. 94. That Defendant admits the allegations in paragraph 94 of the Complaint. 95. That Defendant denies the allegations in paragraph 95 of the Complaint. 96. That Defendant denies the allegations in paragraph 96 of the Complaint. 97. That Defendant denies the allegations in paragraph 97 of the Complaint. 98. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 98 of the Complaint.

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99. That Defendant admits that inmates are released 10 at a time for recreation and denies the remaining allegations in paragraph 99 of the Complaint.
100. That Defendant denies the allegations in paragraph 100 of the Complaint. 101. That Defendant denies the allegations in paragraph 101 of the Complaint. 102. That Defendant denies the allegations in paragraph 102 of the Complaint. 103. That Defendant denies the allegations in paragraph 103 of the Complaint. 104. That Defendant admits the allegations in paragraph 104 of the Complaint. 105. That Defendant denies the allegations in paragraph 105 of the Complaint. 106. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 106 of the Complaint. 107. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 107 of the Complaint. 108. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 108 of the Complaint. 109. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 109 of the Complaint. 110. That Defendant denies that any inmate was charged $4.00 for COVID treatment and is without sufficient information and knowledge to either admit or deny the allegations in paragraph 110 of the Complaint. 111. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 111 of the Complaint. 112. That Defendant is without sufficient information and knowledge to either admit or deny

Case 8:20-cv-01028-PX Document 70 Filed 05/13/20 Page 9 of 16
the allegations in paragraph 112 of the Complaint. 113. That Defendant is without sufficient information and knowledge to either admit or deny
the allegations in paragraph 113 of the Complaint. 114. That Defendant is without sufficient information and knowledge to either admit or deny
the allegations in paragraph 114 of the Complaint. 115. That Defendant is without sufficient information and knowledge to either admit or deny
the allegations in paragraph 115 of the Complaint. 116. That Defendant is without sufficient information and knowledge to either admit or deny
the allegations in paragraph 116 of the Complaint. 117. That Defendant is without sufficient information and knowledge to either admit or deny
the allegations in paragraph 117 of the Complaint. 118. That Defendant denies the allegations in paragraph 118 of the Complaint. 119. That Defendant admits the allegations in paragraph 119 of the Complaint. 120. That Defendant denies the allegations in paragraph 120 of the Complaint. 121. That Defendant denies the allegations in paragraph 121 of the Complaint. 122. That Defendant denies the allegations in paragraph 122 of the Complaint. 123. That Defendant denies the allegations in paragraph 123 of the Complaint. 124. That Defendant denies the allegations in paragraph 124 of the Complaint. 125. That Defendant denies the allegations in paragraph 125 of the Complaint. 126. That Defendant is without sufficient information and knowledge to either admit or deny
the allegations in paragraph 126 of the Complaint. 127. That Defendant is without sufficient information and knowledge to either admit or deny

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the allegations in paragraph 127 of the Complaint. 128. That Defendant admits the allegations in paragraph 128 of the Complaint. 129. That Defendant denies the allegations in paragraph 129 of the Complaint. 130. That Defendant denies the allegations in paragraph 130 of the Complaint. 131. That Defendant denies the allegations in paragraph 131 of the Complaint. 132. That Defendant denies the allegations in paragraph 132 of the Complaint. 133. That Defendant denies the allegations in paragraph 133 of the Complaint. 134. That Defendant denies the allegations in paragraph 134 of the Complaint. 135. That Defendant denies the allegations in paragraph 135 of the Complaint. 136. That Defendant denies the allegations in paragraph 136 of the Complaint. 137. That Defendant admits the allegations in paragraph 137 of the Complaint. 138. That Defendant admits the allegations in paragraph 138 of the Complaint. 139. That Defendant admits the allegations in paragraph 139 of the Complaint. 140. That Defendant is without sufficient information and knowledge to either admit or deny
the allegations in paragraph 140 of the Complaint. 141. That Defendant is without sufficient information and knowledge to either admit or deny
the allegations in paragraph 141 of the Complaint. 142. That Defendant denies the allegations in paragraph 142 of the Complaint. 143. That Defendant denies the allegations in paragraph 143 of the Complaint. 144. That Defendant denies the allegations in paragraph 144 of the Complaint. 145. That Defendant is without sufficient information and knowledge to either admit or deny
the allegations in paragraph 145 of the Complaint.

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146. That Defendant denies the allegations in paragraph 146 of the Complaint. 147. That Defendant denies the allegations in paragraph 147 of the Complaint. 148. That Defendant denies the allegations in paragraph 148 of the Complaint. 149. That Defendant denies the allegations in paragraph 149 of the Complaint. 150. That Defendant denies the allegations in paragraph 150 of the Complaint. 151. That Defendant denies the allegations in paragraph 151 of the Complaint. 152. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 152 of the Complaint. 153. That Defendant denies the allegations in paragraph 153 of the Complaint. 154. That Defendant denies the allegations in paragraph 154 of the Complaint. 155. That Defendant denies the allegations in paragraph 155 of the Complaint. 156. That Defendant denies the allegations in paragraph 156 of the Complaint. 157. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 157 of the Complaint. 158. That Defendant denies the allegations in paragraph 158 of the Complaint. 159. That Defendant denies the allegations in paragraph 159 of the Complaint. 160. That Defendant admits the allegations in paragraph 160 of the Complaint. 161. That Defendant denies the allegations in paragraph 161 of the Complaint. 162. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 162 of the Complaint. 163. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 163 of the Complaint.

Case 8:20-cv-01028-PX Document 70 Filed 05/13/20 Page 12 of 16
164. That Defendant denies the allegations in paragraph 164 of the Complaint. 165. That Defendant denies the allegations in paragraph 165 of the Complaint. 166. That Defendant denies the allegations in paragraph 166 of the Complaint. 167. That Defendant denies the allegations in paragraph 167 of the Complaint. 168. That Defendant admits that “prisoners who are transferred to the Medical Unit to be tested for COVID 19 are placed in medical isolation cells” and denies the remaining allegations in paragraph 168 of the Complaint. 169. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 169 of the Complaint. 170. That Defendant admits “prisoners must remain in these cells until the results of their COVID-19 tests come back” and denies the remaining allegations in paragraph 170 of the Complaint. 171. That Defendant admits that inmates have no access to phone and reading material while in isolation and denies the remaining allegations in paragraph 171 of the Complaint. 172. That Defendant denies the allegations in paragraph 172 of the Complaint. 173. That Defendant admits that medically vulnerable prisoners suspected of COVID-19 are held in isolation cells within the Medical Unit and denies the remaining allegations in paragraph 173 of the Complaint. 174. That Defendant denies the allegations in paragraph 174 of the Complaint. 175. That Defendant denies the allegations in paragraph 175 of the Complaint. 176. That Defendant denies the allegations in paragraph 176 of the Complaint. 177. That Defendant denies the allegations in paragraph 177 of the Complaint. 178. That Defendant denies the allegations in paragraph 178 of the Complaint.

Case 8:20-cv-01028-PX Document 70 Filed 05/13/20 Page 13 of 16
179. That Defendant denies the allegations in paragraph 179 of the Complaint. 180. That Defendant admits the allegations in paragraph 180 of the Complaint. 181. That Defendant denies the allegations in paragraph 181 of the Complaint. 182. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 182 of the Complaint. 183. That Defendant denies the allegations in paragraph 183 of the Complaint. 184. That That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 184 of the Complaint. 185. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 185 of the Complaint. 186. That Defendant is without sufficient information and knowledge to either admit or deny the allegations in paragraph 186 of the Complaint. 187. To the extent that paragraph 187 does not contain allegations and references exhibits, no answer is necessary. Defendant is without sufficient information and knowledge to either admit or deny the allegations in the exhibits incorporated by reference in paragraph 187 of the Complaint. 188. To the extent that paragraph 188 does not contain allegations, no answer is necessary. 189. To the extent that paragraph 189 does not contain allegations, no answer is necessary. 190. That Defendant denies the allegations in paragraph 190 of the Complaint. 191. That Defendant denies the allegations in paragraph 191 of the Complaint. 192. That Defendant denies the allegations in paragraph 192 of the Complaint. 193. That Defendant denies the allegations in paragraph 193 of the Complaint. 194. That Defendant denies the allegations in paragraph 194 of the Complaint.

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195. That Defendant denies the allegations in paragraph 195 of the Complaint. 196. That Defendant denies the allegations in paragraph 196 of the Complaint.
COUNT I – 42 U.S.C. §1983- Eighth and Fourteenth Amendment: Jail Conditions 197. Defendant repeats and realleges each and every response above as if set forth fully herein. 198. That Defendant denies the allegations in paragraph 198 of the Complaint. 199. That Defendant denies the allegations in paragraph 199 of the Complaint. 200. That Defendant denies the allegations in paragraph 200 of the Complaint. 201. That Defendant denies the allegations in paragraph 201 of the Complaint. 202. To the extent that paragraph 202 states a pray for relief, no answer is required.
COUNT II – 42 U.S.C §1983 – Fourteenth Amendment: Overdetention 203. Defendant repeats and realleges each and every response above as if set forth fully herein. 204. That Defendant denies the allegations in paragraph 204 of the Complaint. 205. That Defendant denies the allegations in paragraph 205 of the Complaint. 206. That Defendant denies the allegations in paragraph 206 of the Complaint. 207. To the extent that paragraph 207 states a pray for relief, no answer is required.
COUNT III – Petition for Writs of Habeas Corpus Pursuant to 28 U.S.C. §2241 208. Defendant repeats and realleges each and every response above as if set forth fully herein. 209. That Defendant denies the allegations in paragraph 209 of the Complaint. 210. That Defendant denies the allegations in paragraph 210 of the Complaint.

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211. That Defendant admits that due process prohibits the exposure of inmates to severe risk of death, pain or severe permanent injury and denies the remaining allegations in paragraph 211.
DEFENSES 1. Plaintiffs Keith Seth and Mario Burch lack standing. 2. Plaintiffs’ claims are moot. 3. Class action cannot be certified without a named Plaintiff as a class representative. 4. Defendant states that Plaintiffs do not satisfy the requirements for class action certification. 5. The remaining Plaintiff is not qualified to be a class representative. 6. Plaintiffs’ claims are barred by the defenses of justification and truth. 7. Plaintiff’s claims are barred by 42 U.S.C. § 1997e(a), the Prison Litigation Reform Act. 8. Defendant is entitled to qualified immunity. 9. All Prince George’s County, Maryland Department of Corrections’ COVID-19 policies, practices, and customs are constitutional. 10. Defendant states that Plaintiffs do not satisfy the requirements for class action status. 11. Plaintiff fails to state a claim upon which relief may be granted. 12. Plaintiffs’ claims are barred the doctrine of comity. 13. Plaintiffs’ injuries, if any, were not proximately cause by Defendant.

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Filed: 05/13/20

Respectfully submitted,
RHONDA L. WEAVER COUNTY ATTORNEY
ANDREW J. MURRAY DEPUTY COUNTY ATTORNEY
______/s/________________________ Shelley L. Johnson, Fed. Bar No. 15853 Ann E. Koshy, Fed. Bar No. 19333 Associate County Attorneys PRINCE GEORGE’S COUNTY OFFICE OF LAW Wayne K. Curry Administration Building 1301 McCormick Drive, Suite 4100 Largo, Maryland 20774 (301) 952-5225 voice (301) 952-3071 facsimile
Counsel for Defendant

 Case 8:20-cv-01028-PX Document 84 Filed 05/21/20 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH SETH, et al.,

*

Individually and on behalf of a class

of similarly situated persons,

*

Plaintiffs,

*

v.

*

Civil Action No. 8:20-cv-01028-PX

*

MARY LOU MCDONOUGH,

In her official capacity as

*

Director of the Prince George’s County

Department of Corrections,

*

Defendant.

* *** MEMORANDUM OPINION

This case concerns the health, welfare, and safety of detained individuals housed at the

Prince George’s County Correctional Center (“the Facility”) during the COVID-19 pandemic.

Plaintiffs, on behalf of themselves and all similarly situated detainees, contend that Director

Mary Lou McDonough, in her official capacity as Director of the Prince George’s County

Department of Corrections, has abdicated her function to provide constitutionally adequate care

during the pandemic in violation of the Eighth and Fourteenth Amendments to the United States

Constitution.

The case is in its infancy. This Opinion addresses the propriety of Plaintiffs’ Emergency

Motion for a Temporary Restraining Order (“TRO”) and Preliminary Injunction (ECF No. 3-1).

For the following reasons, the Court grants in part and denies in part the motion.

Case 8:20-cv-01028-PX Document 84 Filed 05/21/20 Page 2 of 33
I. Background
The Court struggles to put into words the magnitude of COVID-19’s devastation. On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic.1 At
that time, the United States registered 1,267 of the 118,000 confirmed global cases and 38 of the 4,291 deaths.2 Since then, the virus has visited greater pain and suffering. As of today, 329,186 have died globally, 93,558 in the United States, and 2,045 in the state of Maryland.3 In Prince
George’s County, the virus arrived early and spread with a vengeance. As a result, the County
has experienced the highest number of confirmed cases and the second-highest number of deaths in the State.4
No cure or vaccine exists for the highly infectious virus. ECF No. 2-1, Ex. 30 ¶ 8 (Decl.
of Dr. Jamie Meyer). And for those with underlying chronic health conditions or advanced age,
the virus poses an even greater risk for a painful and solitary demise. Id. ¶ 9. Due to these
realities, Maryland has been under a state of emergency and Prince George’s County a stay-athome order since March.5
It is universally recognized that COVID-19 poses a particularly tough challenge for the
1 Rolling Updates on Coronavirus Disease (COVID-19), World Health Org., https://www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen.
2 March 11 Coronavirus News, CNN, March 12, 2020, https://www.cnn.com/world/live-news/coronavirusoutbreak-03-11-20-intl-hnk/index html.
3 Coronavirus Research Center, COVID-19 Dashboard by the Center for Systems Science and Engineering, Johns Hopkins University, https://coronavirus.jhu.edu/map.html (data as of May 21, 2020); Coronavirus Disease 2019 (COVID-19) Outbreak, Maryland Dept. of Health, https://coronavirus.maryland.gov/ (data as of May 21, 2020).
4 Coronavirus Disease 2019 (COVID-19) Outbreak, Maryland Dept. of Health, https://coronavirus.maryland.gov/ (data as of May 21, 2020).
5 Declaration of State of Emergency and Existence of Catastrophic Health Emergency, March 5, 2020, https://governor maryland.gov/wp-content/uploads/2020/03/Proclamation-COVID-19.pdf; Order of the Governor of the State of Maryland § II, No. 20-03-30-01 (Mar. 30, 2020), https://governor maryland.gov/wp-content uploads/2020/03/Gatherings-FOURTH-AMENDED-3.30.20.pdf; Coronavirus (COVID-19): What’s New, Prince George’s County, https://www.princegeorgescountymd.gov/3397/Coronavirus (last accessed May 9, 2020).
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incarcerated citizenry. Social distancing and rigorous personal hygiene remain important combatants to the virus—but those housed in jails and prisons must eat, sleep, talk, and tend to their every personal need in each other’s close physical space. See ECF No. 2-1, Ex. 32 at 9. COVID-19 is especially deadly for the detained population because they are disproportionately more likely to suffer from chronic medical conditions. Id.
In recognition of this stark reality, the Center for Disease Control (“CDC”) on March 23, 2020, issued guidance for officials operating detention facilities to help stop the spread of COVID-19. See ECF No. 2-1, Ex. 36 (CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities). The guidance includes detailed recommendations about proper hygiene and cleaning practices, social distancing, evaluating symptoms, and the use of medical isolation and quarantine. Id. The parties agree that the CDC guidelines provide a useful benchmark in determining whether the Facility’s policies and procedures are appropriate. See ECF No. 29 at 9; ECF No. 3-1 at 5. Their disagreement, however, concerns whether the Facility has followed these basic recommendations.
The Facility, run by Defendant, can typically house over 1,500 men, women, and juveniles. ECF No. 29-3 at 10. At the beginning of the COVID-19 pandemic, the Facility held roughly 720 detainees. ECF No. 29 at 3. However, through concerted efforts to reduce the population, the Facility now holds 544 detainees, the overwhelming majority of whom are adult males awaiting trial. ECF No. 81. The physical footprint of the Facility includes seventeen similarly constructed housing units. ECF No. 29 at 12–13. In each unit, 48 double-occupancy cells are equipped with a sink and toilet and open to a common area with a kitchenette, additional sinks, tables and chairs, sitting areas, and phone banks. Id.; ECF No. 29-3 at 6, 10–15. The Facility also supports an on-site medical unit with twelve negative pressure single-occupancy
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cells and a larger cell to care for up to ten detainees at once. ECF No. 29-3 at 9–10. The medical unit is staffed with a resident physician, nurses, and mental health providers. Id.
On April 21, 2020, Plaintiffs filed this class action lawsuit and companion motion for temporary injunctive relief arising from Defendant’s allegedly inadequate response to the COVID-19 pandemic. ECF Nos. 2, 3. Plaintiffs bring claims under 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth Amendments based on Defendant’s denial of medical care as well as knowing and reckless exposure to serious health risks (Count I). They also aver that Defendant implemented, and continues to adhere to, an unconstitutional “policy” of detaining COVID-19-positive individuals after they are legally entitled to release (Count II). For a subset of medically vulnerable detainees whom Plaintiffs contend face imminent peril from COVID-19, Plaintiffs seek a writ of habeas corpus for immediate transfer or release pursuant to 28 U.S.C. § 2241 (Count III).
At the time Plaintiffs filed suit, the public knew that three detainees had tested positive for COVID-19.6 The Complaint, however, reflected a far more sizeable outbreak and a systemic lack of response to contain it. Twenty-seven detainees, or approximately five percent of the Facility’s population, swore out detailed declarations cataloguing the lack of cleaning supplies and personal protective equipment (“PPE”), as well as the derisory medical response to those who displayed clear symptoms of COVID-19. See generally ECF No. 2-1. Detainees described medical staff wholly unfamiliar with how the virus presents, ill-equipped to identify COVID-19 symptoms, and uninformed as to how to conduct proper contact tracing or isolation procedures to stop the spread of this highly infectious virus. Most disturbing, each detainee either described
6 Laura Wainman, “3 inmates, 1 correctional officer at Prince George’s Department of Corrections test positive for coronavirus”, WUSA9 (April 2, 2020), https://www.wusa9.com/article/news/health/coronavirus/coronavirus-prince-georges-county-jail-inmates-officer/65b4e2051e-7b29-41e7-96f3-eb2a9473e038.
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himself as having COVID-19 symptoms, being directly exposed to detainees with COVID-19 symptoms, or both.
Plaintiffs also included declarations from physicians who carefully documented the now obvious—that detained populations are at exponentially higher risk of contracting COVID-19 by virtue of detainees’ reduced ability to socially distance and their lack of access to PPE. See ECF No. 2-1, Ex. 30, Ex. 32; ECF No. 44-1, Ex. A. Plaintiffs also submitted the declaration of an assistant state public defender—an officer of the court—who detailed her personal experience with inadequate screening for COVID-19 symptoms as she entered the Facility, limited and ineffective access to her clients and the unclean, dank environs that she personally observed. See ECF No. 2-1, Ex. 29.
In recognition of the dire circumstances as described by the detainees, the Court ordered Defendant to respond to the TRO motion within 48 hours. ECF No. 24. The Court provided specific guidance in a three-page attachment to the Order that enumerated the topics on which the Court expected Defendant to respond, including: information on the confirmed number of COVID-19 positive detainees and staff; methods for screening, testing, contact tracing, isolating, and quarantining detainees; provision of PPE and cleaning supplies; provision of medical care; and policies and procedures that Defendant implemented in response to the pandemic. To further streamline the process, the Court directed the parties to submit recommendations for a potential court-appointed expert who could inspect the Facility if deemed necessary.
On April 25, 2020, Defendant responded and supplemented the record as directed. ECF No. 29. Defendant, along with representatives of the Facility’s medical subcontractor, Corizon, LLC, executed detailed declarations. See ECF Nos. 29-1, 29-2, 29-3. Defendant’s declaration addressed the operational steps she had taken since January 2020 to prepare for and execute her
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response to COVID-19 in the Facility. See ECF No. 29-3. Defendant described, for instance, steps taken to improve the Facility’s sanitation and detainee personal hygiene, provide PPE to staff and detainees, and prepare the medical unit and medical staff for treating COVID-19 positive detainees. Id. The medical declarations detailed the training and protocols put in place to identify and treat COVID-19 positive detainees. See ECF Nos. 29-1, 29-2. The declarations also described screening protocols, which included twice-daily temperature checks in certain housing units.
Defendant also described her sequence of responses when COVID-19 first presented in her staff and the detainees at the end of March. The Facility first eliminated all programming and inmate work details to reduce movement within the population; next it went to a “half lockdown” schedule (April 3) and then finally “full lockdown” (April 4). See ECF No. 29 at 15; ECF No. 29-3 at 13–14, 16. The Facility is still on full lockdown, which consists of allowing detainees to cycle out of their cells and to access the common space in groups of ten for an hour at a time. See ECF No. 29 at 15; ECF No. 29-3 at 14; ECF No. 81. The release continues throughout day and evening, with the exception of count, shift change, meals, and night lockdown. Id. As much as possible, detainees share the common space with the same ten individuals. Id. During this time, detainees may shower, watch television, and phone family and counsel. Id.; ECF No. 29-3 at 11–15. Despite the clear and significant toll such lockdown exacts on the detainees, the measure is deemed necessary to control the spread of the virus at present.
This evidence reflected that Defendant took important and proactive steps to control the spread of COVID-19 but also raised obvious red flags. To begin, the Facility appeared to have significantly undertested the population of COVID-19 symptomatic detainees. As of
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Defendant’s response, only twenty detainees had been tested, eighteen of whom tested positive. ECF No. 29-1 ¶¶ 5, 33. These numbers reflected that the Facility’s test-to-positivity ratio was a whopping 90%, compared to the state average at the time of 19%.7 An additional 28 staff had also tested positive. ECF No. 29-3 at 19. The significant presence of COVID-19 at the Facility, in combination with the scores of detainees who described experiencing distinct COVID-19 symptoms (e.g. fever, chills, shortness of breath, loss of smell and taste) yet were never tested, spoke to substantial undertesting at the Facility. The Defendant, however, hailed “only 18 confirmed cases” as proof of victory in stopping the spread of the virus. See ECF No. 29 at 4; ECF No. 29-3 at 18–19.
Defendant, who admits to a hands-on response to the presence of this unprecedented pandemic, certainly knew that the eighteen COVID-19 positive detainees had been housed in four units where roughly 237 detainees live.8 By extension, Defendant knew the Facility had scores of untested detainees who had been in contact with the confirmed COVID-19 detainees. As of April 24, however, the Facility maintained only 20 additional test kits. ECF No. 29-1 ¶ 33.9 The Facility also had no plan for how to secure more tests, or how to administer the tests on hand, as recommended by the CDC. Cf. ECF No. 2-1, Ex. 36 at 23. Defendant could not, at the time, point to even one request for additional tests from the state government, federal government, or private vendors.
7 Live tracker: How many coronavirus cases have been reported in each U.S. state?, POLITICO (data as of May 1, 2020), https://www.politico.com/interactives/2020/coronavirus-testing-by-state-chart-of-new-cases/.
8 Compare ECF No. 65-1 at 6 (housing units with outbreaks) with ECF No. 29 at 12 (population in each housing unit).
9 At least one court has found that a prison’s “shockingly limited available [COVID-19] testing” was sufficient to show deliberate indifference—despite the fact that the prison had “implemented health screening measures” and “modified operations to somewhat reduce inmate contact with each other.” Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882, at *1–3, *8 (N.D. Ohio Apr. 22, 2020).
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To compound the undertesting problem, the evidence did not describe any protocol for contact tracing or quarantining those exposed to COVID-19 positive detainees. Rather, several detainees, described as actively symptomatic, moved about the Facility several times per day, often between medical and their housing units. See e.g., ECF No. 2-1, Ex. 12 ¶¶ 2–3, Ex. 9 ¶¶ 4– 13, Ex. 11 ¶ 10 (“I went back and forth from the medical unit three times before they finally took my symptoms seriously and put me in isolation”), Ex. 17 ¶ 4 (“I asked to be tested for the virus, but they said they don’t have any tests. Last night I went to sick call again. I had a fever and a headache. They told me that my fever wasn’t high enough, and that they would only test me if it got higher. They told me to drink water and sent me back to the unit.”); Ex. 25 ¶ 5 (same for detainee with asthma).
Other detainees reported chronic lack of timely—or sometimes any—medical care, even when they presented with and complained of COVID-19 symptoms to Facility staff. See, e.g., ECF No. 2-1, Ex. 19 ¶¶ 4, 6 (noting that despite having asthma, experiencing coughing and sneezing, and filing a sick call request on March 23, he had not, as of April 7, received any response); ECF No. 44-1, Ex. H ¶ 8 (“So in addition to telling the nurses about my symptoms [shortness of breath, pain in chest, need for inhaler because of asthma], I filled out three sick call requests. . . . I never got a response[.]”); ECF No. 44-1, Ex. I ¶ 3 (“I lost my ability to smell and taste completely. I was sweating a lot . . . had shortness of breath, and I couldn’t fully breathe . . . [medical] told me as long as I was strong enough to get up and walk around, I didn’t have the Coronavirus. So they then sent me back to the housing unit. They didn’t send me back with a mask or any sort of protective equipment.”); ECF No. 2-1, Ex. 23 ¶¶ 4–6; ECF No. 44-1, Ex. J ¶ 8–9. Ignored by medical staff, the sick detainees simply waited out their symptoms in their regular housing units and with their assigned cell mates.
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Defendant did evidently begin conducting twice daily temperature checks in the housing units where COVID-19 positive detainees had resided. See ECF No. 29-1 ¶ 29; ECF No. 36-17. However, the temperature-check logs submitted to the Court heightened, rather than allayed, the Court’s concerns. The records were spotty and did not reflect the purported twice daily checks. ECF No. 36-17. Even more concerning, the recorded temperatures were consistently and atypically low. Id. A significant cohort of detainees had temperatures as low as 95 and 96 degrees, with some as low as 90, 92, and 94 (indicative of hypothermia10). See id. And no record reflected—ever—a temperature over 99 degrees, a fact the Court found both curious and alarming in light of both the eighteen confirmed COVID-19 positive detainees and that the singular most frequent symptom of the virus is fever.
As for PPE and hygiene products supplied to the inmates, the evidence once again concerned the Court. The detainee declarations uniformly described access to minimal amounts of free soap, no sanitizer, and few other personal hygiene products critical to combating the virus’ spread. See, e.g., ECF No. 2-1, Ex. 3 ¶ 7, Ex. 4 ¶ 10, Ex. 8 ¶ 17, Ex. 16 ¶ 8. Most detainees noted that after receiving for free two small bars of soap when first committed to the Facility, soap is available only through purchase at the commissary and is expensive. In response, Defendant submitted that the Facility planned well in advance for this eventuality by ordering 4,500 bars of soap and distributing the soap freely. See ECF No. 29-3 at 4–5, 8.
These bars appeared inadequate to the Court. They are small, hotel-sized bars purchased for 12 cents each, and quickly consumed. ECF No. 37-11 at 7; ECF No. 2-1, Ex. 1 ¶ 7 (detainee noting that a bar of soap lasts at most two or three days). For a population north of 560 detainees at the time, the Court had no reassurance that even the most basic supply of bar soap had been
10 See Hypothermia, Mayo Clinic (last visited May 11, 2020), https://www.mayoclinic.org/diseasesconditions/hypothermia/symptoms-causes/syc-20352682.
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secured in sufficient quantities to comply with CDC guidelines as to frequent hand washing. Cf. ECF No. 29-3 at 6; ECF No. 2-1, Ex. 36 at 11.
As for masks, the Facility provided higher grade N-95 masks to its staff and surgical masks to detainees. See ECF No. 29-3 at 10–11. However, the detainees uniformly complained that the masks were flimsy, became dirty and soiled easily, and were not replaced nearly as often as necessary to maintain detainee safety. See, e.g., ECF No. 2-1, Ex. 2 ¶ 9, Ex. 3 ¶ 5, Ex. 4 ¶ 6, Ex. 5 ¶ 6, Ex. 7 ¶ 8, Ex. 8 ¶ 16, Ex. 24 ¶ 6.
The detainees also vigorously disputed that the housing units were cleaned, see, e.g., ECF No. 2-1, Ex. 1 ¶ 5, Ex. 3 ¶ 9, Ex. 24 ¶ 10, or that available supplies allowed for frequent sanitizing of high-contact surfaces such as the housing unit phones. See, e.g., ECF No. 2-1, Ex. 16 ¶ 8 (“There are two spray bottles on the whole unit to share between about 80 people.”), Ex. 15 ¶ 7. The medical units received some of the most damning reports of unclean and unsanitary conditions. According to several detainee declarations and one assistant public defender, medical isolation cells had “mucus, feces, blood, old food, urine, spit, everything you can name on the walls.” ECF No. 2-1, Ex. 11 ¶ 18; see also ECF No. 2-1, Ex. 12 ¶¶ 7–8, Ex. 29 ¶ 15. The larger ten-person medical cell, although “better,” evidently suffered from lack of cleaning supplies, piles of dust, accumulation of trash, and bug problems. See ECF No. 2-1, Ex. 11 ¶ 19, Ex. 9 ¶¶ 19, 21; ECF No. 37-3 at 25 (internal Facility email confirming that the “Male Ward” in the Medical Unit was not cleaned by a professional service because it was “occupied.”).
Chief among the Court’s lingering concerns was the medically vulnerable population. Although Defendant sparred about the definition of “medically vulnerable,” see ECF No. 29-1 ¶ 31, the CDC makes it clear. The population at higher risk for serious deleterious effects from COVID-19 are those age 65 and older; those with such underlying medical conditions as chronic
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lung disease, moderate to severe asthma, serious heart conditions, diabetes, severe obesity, liver disease, chronic kidney disease undergoing dialysis; and the immunocompromised such as cancer patients, those who have received bone marrow or organ transplants, those who are HIV positive or who have AIDS, or those who take regularly corticosteroids and other immunosuppressants.11 Corizon bulletins have similarly advised Facility’s medical staff of the high-risk conditions. See ECF No. 36-12 at 3–4. And both the CDC and Corizon explicitly instruct correctional facilities to develop a specific plan for this vulnerable population focused on implementing prophylactic housing and other accommodations in preparation for an outbreak. See ECF No. 36-26 at 4 (“For those patient (sic) age 60 or older, and especially those with underlying health issues, please ensure that there is a specific plan in place to isolate them from potential exposures and protect them with preventative measures.”); ECF No. 2-1, Ex. 36 at 17, 21 (similar).
Despite this clear guidance, Defendant’s submission reflected no plan of any kind for the high-risk detainees. They remained housed with others who were COVID-19 symptomatic and positive with no special care paid to the heightened risk they face. See, e.g., ECF No. 2-1, Ex. 26 ¶ 4 (“I am HIV positive. Over the past two weeks, I have had chills and fever, a slight cough, body pain and a sore throat. I requested a “sick call,” . . . the week of March 30th and I was finally seen on April 9, 2020.”), Ex. 25 ¶ 5 (“I have asthma. . . I felt really bad for two or three days. I had body aches, a runny nose, and what felt like fluid in my chest. . . a nurse took my temperature. It was 101 or 102. Despite this, I only remained in the medical unit for ten or 15 minutes. I was told to return to my cell and drink fluids. That was all.”).
In short, the situation at the Facility appeared grim. The Court accordingly appointed Dr.
11 People Who Are at Higher Risk for Severe Illness, CDC, https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-at-higher-risk.html.
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Carlos Franco-Paredes, Program Director of the Division of Infectious Diseases at the University of Colorado Denver School of Medicine and an expert in infectious diseases, to inspect the Facility. ECF No. 48-2; ECF No. 53.12 Double-Board certified in internal medicine and infectious diseases, Dr. Franco-Paredes has amassed not only significant clinical experience in direct patient care for infectious diseases, but has also advised and represented the country of Mexico on national health plans for implementing vaccinations, infectious disease protocols, and outbreaks of infections in the jail system. ECF No. 48-2 at 2. Dr. Franco-Paredes has also performed other similar inspections since the COVID-19 outbreak.
Dr. Franco-Paredes conducted the site inspection on May 6 and 7. ECF No. 65-1 at 5. Over the course of two full days, the doctor was given unrestricted access to the Facility and he inspected much of it. Id. He also interviewed 41 detainees, several corrections officers and command staff, the resident physician, nurses, the resident psychologist, and Defendant. Id. Dr. Franco-Paredes described Defendant and staff as “helpful” and “cooperative,” as well as open to recommendations to reduce the risk to staff and inmates. Id. at 6. Within 72 hours of the inspection, Dr. Franco-Paredes completed a written report and answered follow-up questions during a recorded hearing held on May 11, 2020. ECF Nos. 64, 65-1. The following summarizes his findings.
Starting with the good news, the Facility appears at present to be complying with most of the applicable CDC guidelines. Although this was not always the case,13 Dr. Franco-Paredes found that the detainees had been given adequate supplies of soap and Spray-9, an FDA-
12 The Court appointed Dr. Franco-Paredes pursuant to Federal Rule of Evidence 706. The Court and parties appreciate Dr. Franco-Paredes’ responsiveness and willingness to bear the entire expense of his appointment.
13 The record, when viewed as a whole, reflects historic insufficient provision of soap, masks, cleaning products, and a lack of social distancing. See generally ECF Nos. 2, 3-1, 29, 36, 37.
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approved disinfectant that kills the novel coronavirus. ECF No. 65-1 at 10. Further, the Facility’s physical structure, combined with the lockdown measures implemented, worked to contain the spread of COVID-19 when staff and detainees began testing positive. See id. at 7, 10. The regular but infrequent provision of masks could be improved, according to the doctor, but it appears that the Facility is making ongoing changes in that regard. See id. at 10, 14. As of the report date, May 11, none of the interviewed detainees reported active COVID-19 symptoms, although one additional staff member had tested positive on May 6. Id. at 9.
As for the bad news, Dr. Franco-Paredes confirmed that the Facility experienced a “large outbreak” of COVID-19 between the end of March and mid-April that demanded rapid response in testing and treatment. Id. at 6. The outbreak began in the Officer Dining Room and spread to at least four of the housing units that together included approximately 237 detainees. Compare ECF No. 65-1 at 6 with ECF No. 29 at 12. Consistent with detainees’ declarations, Dr. FrancoParedes noted that many detainees in those units had experienced active symptoms of COVID19. Yet only twenty COVID-19 tests were administered, and only the eighteen detainees who tested positive were isolated in the medical unit and treated accordingly. Those infected with COVID-19 were “likely a much higher number,” and instead remained in their respective housing units as disease vectors for the other detainees and staff. ECF No. 65-1 at 7. It was good fortune that none, to date, suffered any of the serious, sometimes catastrophic, outcomes of the virus. Id.
Dr. Franco-Paredes also concluded that certain staff were—and still are—ill-equipped to handle the outbreak. Id. at 8–9. Nurses lack a basic understanding of COVID-19 symptoms and their dereliction was patent. During the outbreak, sick call requests went ignored and when the staff did respond, they failed to treat or isolate COVID-19 symptomatic detainees, repeating to
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the detainees the well-worn phrase “if you can walk, then you are ok.” Id. at 9. This chronic lack of education and response undoubtedly is an area of “important concern since patients with COVID-19 may rapidly develop progressive respiratory failure.” Id. at 8. This combination of “viral under-testing” and insufficiently trained or responsive medical staff posed great concern to the doctor, especially given that certain “medically vulnerable individuals [are] residing in these units and who, if infected, may develop severe disease and potentially die from this infection.” Id. at 9.
As for these high-risk detainees, Dr. Franco-Paredes confirmed they were left wholly exposed. Id. at 7. Defendant, although specifically aware through CDC guidance that high-risk detainees could easily succumb to COVID-19, and knowing that 28 staff and 18 detainees had already tested positive, implemented no functional plan to afford such detainees any additional screening, supervision, segregated housing, or any like measure. Simply put, as of the report date, Defendant had not demonstrated any plan to address the high-risk detained population.
At the conclusion of the May 11 hearing, the Court ordered the exchange of additional evidence to facilitate ongoing discussions, as well as supplemental briefing on the application of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 3626, to the proposed injunctive relief. ECF No. 66. The Court next conducted a second recorded hearing with the parties on May 20. After careful review of all evidence presented, and for the following reasons, the Court finds injunctive relief warranted, although on far narrower grounds than originally proposed.
II. Analysis A. The Prison Litigation Reform Act (PLRA) As a preliminary matter, the Court must decide whether the PLRA applies in this case.
The Court concludes it does. The PLRA, by its plain terms, reaches all “prospective relief in any
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civil action brought with respect to prison conditions.” 18 U.S.C. § 3626(a) (1997) (emphasis added). This includes actions brought by pretrial detainees challenging conditions of their pretrial detention. See id. § 3626(g)(3) (defining “prisoner” to include “any person subject to . . . detention . . .who is accused of . . .violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.”); and (g)(5) (“prison” defined as “any Federal, State, or local facility that incarcerates or detains juveniles or adults accused of . . . violations of criminal law”).
In the context of proposed injunctive relief, the PLRA mandates that it reach “no further than necessary to correct the [constitutional] violation.” Id. § 3626(a)(1)(A). When fashioning the appropriate remedy, the Court must also give “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” Id. In this respect, the PLRA imposes an important backstop against judicial micro-management of prison and detention facilities, even in the face of public health crises. See Brown v. Plata, 563 U.S. 493, 511 (2011).
Section 3626(a)(3) further circumscribes this Court’s power to issue a “prisoner release order.” 18 U.S.C. § 3626(a)(3). A prisoner release order is defined broadly as “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” Id. § 3626(g)(4) (emphasis added). The PLRA directs that such a release order may issue only by three-judge panel, convened at the request of this Court, and only after less intrusive relief has failed to remedy the constitutional violation. Id. §3626(a)(3).
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Plaintiffs agree the PLRA applies to their Eighth and Fourteenth Amendment claims (Count I), given that it challenges the conditions of their confinement.14 ECF No. 74 at 1 n.1. However, they challenge the PLRA’s applicability to the petition for habeas corpus brought on behalf of the medically vulnerable subclass pursuant to 28 U.S.C. § 2241 (Count III). ECF No. 3-1 at 33 n.55; ECF No 74 at 2. Plaintiffs assert that because the habeas petition challenges the “fact of confinement” and not the conditions under which they are detained, this claim is beyond the reach of the PLRA. ECF No. 74 at 2. The Court, at this juncture, must disagree.
To be sure, section 2241 confers “broad authority” on the court to “hear applications for writs of habeas corpus filed by persons claiming to be held ‘in custody in violation of the Constitution or laws or treaties of the United States.’” Timms v. Johns, 627 F.3d 525, 530 (4th Cir. 2010) (quoting 28 U.S.C. § 2241). This authority extends to federal habeas corpus petitions brought by state pre-trial detainees. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 488–89 (1973); Robinson v. Thomas, 855 F.3d 278, 283–84 (4th Cir. 2017); In re Wright, 826 F.3d 774, 782 (4th Cir. 2016) (citing with approval McNeely v. Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 2003)). However, petitioners must challenge the “fact or duration” of their confinement and seek relief in the form of immediate release. Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497, at *4 (S.D. Tex. Apr. 17, 2020) (quoting Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)); cf. Coreas v. Bounds, No. TDC-20-0780, 2020 WL 1663133, at *7 (D. Md. Apr. 3, 2020) (concluding that a “claim by an immigration detainee seeking release because of unconstitutional conditions or treatment is cognizable under § 2241”).15 The subclass’
14 The Court agrees with Plaintiffs that the PLRA does not apply to their over-detention claim (Count II). The Court does not view that claim as challenging the conditions of their confinement, but rather a purported policy of detaining individuals beyond the point at which they are legally entitled to release.
15 The Fourth Circuit has offered some guidance on this issue, at once holding that challenges to the conditions of confinement cannot be brought as a habeas petition, see Wilborn v. Mansukhani, 795 F. App’x 157, 163–64 (4th Cir. 2019), and endorsing that habeas corpus is “primarily a vehicle for attack by a confined person on
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challenges to the conditions of confinement are otherwise captured in Count I and brought pursuant to 28 U.S.C. § 1983. See Lee v. Winston, 717 F.2d 888, 892 (4th Cir. 1983) (citing Preiser, 411 U.S. at 475) (release from confinement unavailable for claims brought pursuant to 42 U.S.C. § 1983).
The PLRA clearly carves out an exception for “habeas corpus proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2). But that is not this claim. The Complaint, read most favorably to the medically vulnerable subclass, simply does not challenge the “fact” that they are detained. They are not claiming, for example, to be held after acquittal or beyond the time otherwise imposed by law. Compare Rodriguez v. Ratledge, 715 F. App’x 261, 266 (4th Cir. 2017) (petitioner’s deprivation of good-conduct time was a cognizable habeas claim because it challenged the duration of his confinement); Brazell v. Boyd, No. 92-7029, 1993 WL 98778, at *2 (4th Cir. Apr. 5, 1993) (citing Drayton v. Hayes, 589 F.2d 117, 120–21 (2d Cir. 1979) (double jeopardy claim properly brought as habeas petition); and Robinson v. Thomas, 855 F.3d 278, 283 (2017) (Court’s analysis presumes double jeopardy claim properly brought as § 2241 petition) with Braddy v. Wilson, 580 F. App’x 172, 173 (4th Cir. 2014) (petitioner’s challenge to the conditions of confinement improper habeas action); Strader v. Troy, 571 F.2d 1263, 1269 (4th Cir. 1978) (because petitioner did “not assert that he [was] entitled to parole and should be released,” the “claim for relief must be treated as a suit under 42 U.S.C. § 1983.”); and Wilborn, 795 F. App’x at 163–64 (petitioner’s request for transfer to another facility was not cognizable under § 2241). Rather, Plaintiffs allege that the current “conditions” at the Facility have resulted in “needless[]” exposure to COVID-19. ECF
the legality of his custody and [that] the traditional remedial scope of the writ has been to secure absolute release— either immediate or conditional—from that custody.” Winston, 717 F.2d at 892.
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No. 2 ¶ 9. Apart from the over-detention claim, Plaintiffs’ factual allegations focus almost exclusively on Defendant’s failure to provide appropriate PPE, housing, and medical care. Id. ¶¶ 68–182, 198. Where “Plaintiffs’ claims would not exist but for their current conditions of confinement,” Alvarez v. LaRose, 20cv782-DMS-AHG, 2020 WL 2315807, at *2-4 (S.D. Cal. May 9, 2020), Plaintiffs’ habeas claim, at its core, is a challenge to prison conditions.
This Court is also not prepared to conclude that the challenge concerns both the fact and conditions of confinement. Although this dual designation may make sense in other contexts,16 the Court cannot plausibly read this Complaint as bringing such a claim. The Complaint singularly references that “there are presently no options available to mitigate” the risk posed to the subclass “quickly enough to protect them other than immediate release from custody.” ECF No. 2 at ¶ 211. But the remaining Complaint identifies the very conditions that, if remedied, would mitigate the risk to all detainees, including the subclass. Put differently, Plaintiffs have not pleaded facts which make plausible that no set of conditions can reduce the risk of COVID19 exposure to the medically vulnerable subclass to an acceptable level. See Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 755 (2017) (“What matters is the crux . . . of the plaintiff’s complaint, setting aside any attempts at artful pleading.”); cf. Davis v. Bell Atl.-W. Va., Inc., 110 F.3d 245, 247 (4th Cir. 1997); Belfiore v. Summit Fed. Credit Union, 452 F. Supp. 2d 629, 633 n.2 (D. Md. 2006). Accordingly, the Court finds that the PLRA applies to Counts I and III. 17
16 See Nelson v. Campbell, 541 U.S. 637, 643–44 (2004); Wilson v. Williams, No. 20-3447, at 3 (6th Cir. May 4, 2020), ECF No. 62, Ex. A; but see Swain v. Junior, No. 20-11622-C, 2020 WL 2161317, at *6 (11th Cir. May 5, 2020); Martinez v. Brooks, No. 3:20-cv-00569, 2020 WL 2405350, at *16 (D. Conn. May 12, 2020).
17 Even if the PLRA did not apply, the Court finds that Plaintiffs have not demonstrated the propriety of en masse release for the medically vulnerable subclass. Cf. Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *13 (E.D. Mich. Apr. 5, 2020) (finding that “no set of possible confinement conditions” could sufficiently protect petitioner’s constitutional rights); Gray v. Cty. of Riverside, 5:13-cv-0444-VAP-OPx, at 4 (C.D. Cal., Apr. 14, 2020) (stating that if the jail “is unable to implement adequate social distancing within its existing jail facilities and take other necessary steps to decrease the risk of infection, this Court has the authority to order the transfer of prisoners to different facilities.”).
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B. Standard for Injunctive Relief Emergency injunctive relief remains an extraordinary remedy, warranted only upon “a clear showing that the plaintiff is entitled to relief.” Dewhurst v. Cnty. Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011) (quoting Winter v. Natural Resources Defense Council, 555 U.S. 7, 22 (2008)) (internal quotation marks omitted); Int’l Longshoremen’s Ass’n, Local 333 v. Int’l Longshoremen’s Ass’n, AFL-CIO, CCB-15-813, 2015 WL 1402342, at *1 (D. Md. Mar. 25, 2015) (noting that the standards for a temporary restraining order and a preliminary injunction are the same). Because granting such a motion “requires that a district court, acting on an incomplete record, order a party to act, or refrain from acting, in a certain way[,] [t]he danger of a mistake in this setting is substantial.” Hughes Network Sys., Inc. v. InterDigital Commc’ns Corp., 17 F.3d 691, 693 (4th Cir. 1994) (quoting Am. Hosp. Supply Corp. v. Hosp. Prods., Ltd., 780 F.2d 589, 593 (7th Cir. 1986)) (internal quotation marks omitted). Accordingly, the Court, in its sound discretion, must exercise caution in granting injunctive relief in advance of trial on the merits. See Dewhurst, 649 F.3d at 290 (citations omitted). The burden of establishing the propriety of a temporary restraining order rests with the movants who must demonstrate, by a preponderance of the evidence, four well-established factors: (1) a likelihood of success on the merits; (2) a likelihood of suffering irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the party’s favor; and (4) that issuing the injunction is in the public interest. Winter, 555 U.S. at 20; Dewhurst, 649 F.3d at 290. For each of Plaintiffs’ claims, the Court addresses the above factors. C. The Eighth and Fourteenth Amendment Health and Safety Claims
1. Likelihood of Success on Merits The Court first turns to the likelihood of success as to the Eighth and Fourteenth
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Amendment claims. As Plaintiffs correctly point out, Eighth Amendment protections extend to those detainees already found guilty of a criminal offense, whereas similar protections apply to pretrial detainees pursuant to the due process clause of the Fourteenth Amendment. ECF No. 3-1 at 19; see Helling v. McKinney, 509 U.S. 25, 33 (1993) (Eighth Amendment); City of Revere v. Mass. General Hosp., 463 U.S. 239, 244 (1983) (Fourteenth Amendment). This is because “a pretrial detainee, not yet found guilty of any crime, may not be subjected to punishment of any description.” Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992); Ingraham v. Wright, 430 U.S. 651, 671–72 n. 40 (1977) (“Eighth Amendment scrutiny is appropriate only after the state has complied with the constitutional guarantees traditionally associated with criminal prosecutions.”). However, the analytical implications largely remain the same because the due process rights of a pretrial detainee are “at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere, 463 U.S. 239 at 244.
The Eighth Amendment to the Constitution prohibits “unnecessary and wanton infliction of pain” by virtue of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173 (1976). “Scrutiny under the Eighth Amendment is not limited to those punishments authorized by statute and imposed by a criminal judgment.” De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003) (citing Wilson v. Setter, 501 U.S. 294, 297 (1991)). Eighth Amendment protections assure “the treatment a prisoner receives in prison and the conditions under which he is confined.” Id. (quoting Helling, 509 U.S. at 31).
Under the Eighth Amendment, an official is liable if she displays “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). A “serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Iko v.
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Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (internal quotation marks and ellipses omitted). Similarly, an official violates detainees’ Eighth Amendment rights if she exposes detainees to conditions that pose “a substantial risk of serious harm” to their health. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). This includes confinement conditions that are “very likely to cause serious illness and needless suffering” to detainees, specifically, “exposure of inmates to [the] serious, communicable disease” of COVID-19. Helling, 509 U.S. at 33; see also DeGidio v. Pung, 920 F.2d 525, 527, 529 (8th Cir. 1990) (holding that serious risk to inmates’ health existed where a prison had an inadequate response to a tuberculosis outbreak even though “[o]nly a few infected individuals develop active tuberculosis” and the rest are asymptomatic).18
Importantly, “[w]hether one characterizes the treatment received by [the prisoner] as inhuman conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the deliberate indifference standard.” Helling, 509 U.S. at 32 (quotation and quotation marks omitted). To satisfy the deliberate indifference standard, Plaintiffs must demonstrate first, that the alleged deprivation is, objectively, sufficiently serious, and second, that subjectively, the prison official acted with a sufficiently culpable state of mind. See Cox v. Quinn, 828 F.3d 227, 235–36 (4th Cir. 2016); Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016). The subjective component requires “subjective recklessness” in the face of the serious medical condition. See Farmer, 511 U.S. at 839–40. “True subjective recklessness requires knowledge both of the general risk, and also that the conduct is inappropriate in light of that risk.” Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir.1997); see also Parrish ex rel. Lee v.
18 Plaintiffs raise a wide array of other alleged constitutional violations concerning access to mental health treatment, interference with access to counsel and family members, and an ineffective grievance process. See, e.g., ECF No. 3-1 at 9, 16, 22; ECF No. 2-1 at 44. This motion concerns solely the most immediate and pressing healthcare needs to mitigate the emergent COVID-19 crisis at the Facility. The Court has directed the parties to continue discussions regarding redress of the other areas of identified alleged deficiencies.
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Cleveland, 372 F.3d 294, 307 (4th Cir. 2004). An official may avoid liability, however, “if [she] responded reasonably to the risk, even
if the harm was not ultimately averted.” Farmer, 511 U.S. at 844. Reasonableness of the actions taken must be judged in light of the risk known to the defendant at the time. Brown v. Harris, 240 F.3d 383, 390 (4th Cir. 2000); see also Jackson v. Lightsey, 775 F.3d 170, 179 (4th Cir. 2014).
Whether both prongs of the deliberate indifference standard apply to pretrial detainee claims has been the subject of much debate. Although the Fourth Circuit has historically required satisfaction of both the objective and subjective prongs in the context of detention claims, see Gordon v. Kidd, 971 F.2d 1087, 1094 (4th Cir.1992) (applying the deliberate indifference standard to pretrial detainees under the due process clause of the Fourteenth Amendment); Hill, 979 F.2d at 991–92 (same), the United States Supreme Court recently cast doubt on the viability of this rigorous test as applied to those not yet tried or convicted of any crime. The Court in Kingsley v. Hendrickson held that the presumptively innocent plaintiffdetainee need only establish, in his excessive force claim under the due process clause of the Fourteenth Amendment, that the official acts were objectively unreasonable; the plaintiff need not also show the official intended to violate plaintiff’s rights or “acted with reckless disregard for his rights.” 135 S.Ct. 2466, 2471–72 (2015). In so holding, the Court relied heavily on its prior decision in Bell v. Wolfish19, in which the Court “did not consider the prison officials’ subjective beliefs about the policy.” Id. at 2473. “As Bell itself shows (and as our later precedent affirms), a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or
19 441 U.S. 520 (1979).
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it is excessive in relation to that purpose.” Id. The Court further observed that the “objective standard is workable” in that it both protects officials who act in good faith and takes into account the “legitimate interests in managing a jail, acknowledging as part of the objective reasonableness analysis that deference to policies and practices needed to maintain order and institutional security is appropriate.” Id. at 2475.
This Court agrees with several other courts that no meaningful analytical difference exists between the constitutional violations raised in Kingsley and those presented here. See Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018); Gordon v. Cty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018); Darnell v. Pineiro, 849 F.3d 17, 33–35 (2d Cir. 2017); Banks v. Booth, No. 20-849(CKK), 2020 WL 1914896, at *6 (D.D.C. Apr. 19, 2020); cf. Coreas, WL 1663133, at *8. However, for purposes of this motion, the Court defers ultimate decision on this legal question because Plaintiffs have established a likelihood of success on the merits even under the more exacting standard.
a. The Objective Prong: Substantial Risk of Harm to Health or a Serious Medical Need
Defendant agrees that exposure to COVID-19 objectively presents a substantial risk of harm to detainees’ health. See, e.g., ECF No. 29 at 1 (“The virus is serious and can result in death.”); id. (“Never before has the country experienced a virus as contagious as COVID 19); id. at 2 (describing the virus’s spread within the Facility as “inevitable”). Further, society has undoubtedly deemed the risk posed by COVID-19 intolerable, as evidenced by the unprecedented changes to American life to avoid it, from months-long stay-at-home orders to the shuttering of schools and businesses. The risk posed in jails and prisons is markedly greater than that facing the general population, “in terms of risk of transmission, exposure, and harm to individuals who become infected.” ECF No. 2-1, Ex. 30 at 4; see also ECF No. 2-1, Ex. 30 at 4–
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6; ECF No. 2-1, Ex. 32 at 8–9. This risk, in short, is obvious. See Valentine v. Collier, No. 4:20CV-1115, 2020 WL 1916883, at *10 (S.D. Tex. Apr. 20, 2020) (“The risk of COVID-19 is obvious. One person incarcerated . . . has died from COVID-19 and we are seeing COVID-19 spread like wildfire in prisons, jails, and detention facilities within TDCJ’s system, the country, and the world.”); Cameron v. Bouchard, No. 20-10949, 2020 WL 1929876, at *2 (E.D. Mich. Apr. 17, 2020) (“It cannot be disputed that COVID-19 poses a serious health risk to Plaintiffs and the putative class.”).
Likewise, the parties do not dispute that that highly symptomatic COVID-19 positive detainees suffer from serious medical needs. See, e.g., ECF No. 2-1, Ex. 1 ¶¶ 9–10 (“I am coughing up mucus, my chest hurts, and I woke up this morning with a bloody nose . . . I am losing my sense of taste . . . For a week I had diarrhea); Ex. 9 ¶¶ 4–13 (registering high temperatures (101.2) and experiencing vomiting and muscle fatigue); Ex. 17 ¶ 4 (fever and headache); ECF No. 44-1, Ex. I ¶ 3 (“I lost my ability to smell and taste completely. I was sweating a lot. I didn’t know what was going on. I also had shortness of breath, and I couldn’t fully breathe.”). The same holds true for detainees with significant comorbidities such as diabetes, HIV, or moderate to severe asthma, see ECF No. 36-12 at 3–4, some of whom have already experienced COVID-19 symptoms. See, e.g., ECF No. 2-1, Ex. 25 ¶ 5 (asthmatic detainee experiencing “body aches, a runny nose, and what felt like fluid in [his] chest.”); Ex. 26 ¶ 4 (HIV-positive detainee experiencing “chills and fever, a slight cough, body pain and a sore throat”). Accordingly, Plaintiffs have demonstrated likelihood of success on the merits as to the objective prong of the deliberate indifference test.
b. The Subjective Prong: Reckless Disregard As for Defendant’s actual knowledge, the evidence robustly demonstrates that Defendant,
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beginning January of this year, became intimately familiar with the consequences of infection within the Facility’s high-risk population and the attendant symptoms of those infected. Compare ECF No. 2-1, Ex. 36, ECF No. 36-26 at 4, ECF No. 36-23 at 6, and ECF Nos. 36-12 at 3–4, with Parrish, 372 F.3d at 303 (noting plaintiff can show knowledge if the risk is welldocumented and official had exposure to that information). Indeed, early in the COVID-19 outbreak, Defendant publicly acknowledged that the Facility is like a “cruise ship[] without the views or the amenities” where “[p]eople are close together” and “breathing the same air[,]” and so she “expect[ed]” COVID-19 cases in the Facility to rise. ECF No. 2 at ¶¶ 69–70; cf. Makdessi v. Fields, 789 F.3d 126, 141 (4th Cir. 2015) (stating that when a particular danger has been “expressly noted by prison officials,” this can prove that official’s actual knowledge). Further, Defendant’s constant, daily involvement in tracking the spread of COVID-19 in the Facility made her keenly aware of the grave risks that all detainees faced. See ECF No. 77-1 (Aff. Dr. Earnest L. Carter, MD, Phd, Director of Prince George’s County Department of Health,); id. at 2 (“Ms. Mary Lou McDonough, has consulted me multiple times over a period of two or more months concerning the appropriate steps to follow to prevent and/or control the spread of the virus within the Detention Center among both staff and the inmates.”); cf. Farmer, 511 U.S. at 842 (“[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”); Porter v. Clarke, 923 F.3d 348, 361 (4th Cir. 2019), as amended (May 6, 2019) (similar). Plaintiffs, therefore, have demonstrated that Defendant knew the severity of the risks that COVID-19 visited on the detainees.
The more difficult question is whether Defendant exhibited, at a minimum, reckless disregard to such medical needs and risks. In this respect, the Court recognizes that COVID-19 poses a uniquely difficult challenge to detention centers. Much about the virus is still unknown.
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Companies, hospitals, governments, and other institutions across all industries have had to
rapidly adapt, often without the appropriate resources to do so optimally. Defendant is at a
similar disadvantage.
But even taking these realities into account, the Court cannot ignore Defendant’s evident
disregard for the existence of the clear triple-threat: (1) undertesting, and (2) inadequate
treatment and isolation of COVID-19 symptomatic detainees, and (3) no plan for those at high
risk of COVID-19 complications. Defendant knew that she had a substantial COVID-19 outbreak in the Facility, and yet had only tested twenty detainees.20 The remaining population,
many of whom were highly symptomatic, were kept in close quarters with other detainees and
staff. And although Defendant implemented monitoring protocols, they were transparently
ineffective. With sick calls ignored, temperature checks inaccurate, and nurses telling
symptomatic detainees “if you can walk, then you are ok,” Defendant exhibited a reckless
disregard for provision of basic care. Finally, the high-risk or “medically vulnerable” detainees were left as sitting ducks for COVID-19, with no real plan for their continued safety.21
Additionally, although the Court credits that Defendant is responding to a rapidly
evolving pandemic and has improved its response in many ways since the filing of this lawsuit,
20 The record reflects that the Facility had approximately 20 additional test kits available that went unused. ECF No. 29-1 ¶ 33. Since this litigation began, and more particularly in the week preceding the publishing of this Opinion, the Facility has procured 300 additional test kits and has begun more systematized screening and testing consistent with this Court’s decision. See ECF No. 73 at 18. The Court is hopeful that the Facility will receive additional tests to make universal testing available to this population. Cf. Governor Hogan Announces Universal COVID-19 Testing for Maryland’s Correctional and Juvenile Facilities, Office of Governor Larry Hogan, (May 20, 2020) https://governor maryland.gov/2020/05/20/governor-hogan-announces-universal-covid-19-testing-formarylands-correctional-and-juvenile-facilities/.
21 Despite several rounds of briefing and this Court’s pointed questions regarding the Facility’s plan for high risk detainees, Defendant for the first time on May 19 shared that the Facility had “planned” all along to keep those high risk detainees ineligible for release in their housing units during the COVID-19 outbreak, and in singlecells when possible. ECF No. 77-4 at 2–3. This recent revelation does not convince the Court that the Facility had addressed the risks sufficiently to obviate the need for immediate injunctive relief.
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no formal plan exists to continue in some orderly fashion, the provision of PPE, cleaning supplies, and social distancing measures. The Court on this front does not wish to micromanage the day-to-day operations of the Facility. Rather, the Court will implement narrowly tailored relief to provide assurance that those essential measures designed to reduce the risk of community spread will remain in place for the life of the pandemic.
The Court thus concludes that, on this record, Defendant at a minimum recklessly disregarded the health and safety of the detainees exposed to COVID-19, particularly those at high-risk of complications if infected. To be clear, the Court draws this conclusion not on lack of available testing alone, for that is a universal shortcoming.22 It is rather the combination of simultaneously undertesting, failing to isolate and provide basic medical attention to COVID-19 symptomatic detainees, and ignoring high-risk detainees—all known to Defendant—that is at the core of this finding.
Defendant maintains that the Facility under her leadership responded reasonably and swiftly to the pandemic, and so she must avoid liability on these constitutional claims. See ECF No. 29 at 3, 20. Without doubt, Defendant deserves credit for obtaining additional supplies early, suspending inmate work details, and issuing appropriate personal protective equipment to staff. See ECF No. 37-11; ECF No. 29-1 ¶ 33; ECF No. 29-3 at 10–15. Similarly, Defendant undoubtedly worked to reduce the detainee population and put policies in place specific to COVID-19. The Court commends these measures.
But as robustly documented by Dr. Franco-Paredes, a combination of critical failings
22 See Sheryl Gay Stolberg, Farah Stockman and Sharon LaFraniere, Testing Remains Scarce as Governors Weigh Reopening States, N.Y. TIMES (April 25, 2020), https://www.nytimes.com/2020/04/25/us/politics/virustesting-shortages-states-trump html; Christopher Weaver and Rebecca Ballhaus, Coronavirus Testing Hampered by Disarray, Shortages, Backlogs, WALL ST. J. (April 19, 2020), https://www.wsj.com/articles/coronavirus-testinghampered-by-disarray-shortages-backlogs-11587328441.
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nonetheless persisted in isolating and providing basic treatment to COVID-19 symptomatic detainees and providing protections for high-risk detainees. The Court thus concludes that, based on the limited record before it, Plaintiffs are likely to succeed in showing Defendant’s reckless disregard for detainee health and safety. 23
2. Irreparable Harm The Court considers next whether Plaintiffs have shown a likelihood of irreparable harm. To be successful, the movant must demonstrate that the harm requiring immediate action is “‘neither remote nor speculative, but actual and imminent.’” Direx Israel, Ltd. v. Breakthrough Medical Group, 952 F.2d 802, 812 (4th Cir. 1991) (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)). “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the Supreme Court’s] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). The factor is easily met. It is uncontroverted that the outbreak puts all detainees, and particularly high-risk detainees, in serious jeopardy. The Facility, thankfully, has so far escaped any catastrophic consequences. But to address the triple threat now, so as to reduce the risk of further irreparable harm, warrants narrowly drawn injunctive relief. The Court is not alone in this conclusion. See Cameron, 2020 WL 1929876, at *3 (holding that absent injunctive relief, plaintiffs “face a heightened risk of contracting this life-threatening virus simply as incarcerated
23 Defendant suggests the Court should deny the motion outright because the Facility is currently CDC compliant and has addressed many of Plaintiffs’ concerns. ECF No. 73 at 2–3. Although the parties continue to debate this point, the Court finds injunctive relief, drawn narrowly, appropriate because even with improvements made during this litigation, the risk of future danger remains evident. See Porter, 923 F.3d at 364–65 (affirming injunctive relief where plaintiffs “satisfied their burden to demonstrate a cognizable danger of recurrent violence.”). No “clear proof” as yet exists that Defendant has abandoned the “unlawful practices” at the heart of the constitutional violations. Id. at 365.
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individuals and even more so without the imposition of these cautionary measures”); Baxley v. Jividen, No. 3:18-1436, 2020 WL 1802935, at *6 (S.D.W. Va. Apr. 8, 2020) (likelihood of serious illness and even death accompanying the COVID-19 pandemic, coupled with inadequate mitigation); Coreas, 2020 WL 1663133, at *13.
3. Balance of Equities and the Public Interest Likewise, the balance of equities tips in favor of granting relief. To be sure, the Court recognizes that Defendant maintains a strong interest in management of the Facility independent of Court involvement. See O’Dell v. Netherland, 112 F.3d 773, 777 (4th Cir. 1997) (“[I]t is not for the federal courts to ... micromanage the Nation’s prisons.”). Respecting these boundaries, and in-line with the dictates of the PLRA, the scope of this relief addresses only the shortcomings described above. The Court aims to “discharge the[] duty to protect constitutional rights” with minimal intrusion on Defendant’s daily operations. Turner v. Safley, 482 U.S. 78, 84 (1987) (citation and quotation marks omitted). As to the public interest, reducing the spread of this deadly virus in communal environments—whether they be assisted living, group homes, detention facilities, or prisons— remains front and center. See Booth, 2020 WL 1914896, at *12. Every detainee, and every staff member, is loved by someone on the outside, the members of our larger community. Minimizing risk to the detainees suffering from COVID-19 indisputably remains as high a priority as minimizing the risk for the state and country as a whole. Id. The public also maintains a broader interest in reaping the collateral benefits of reduced risk, such as conserving precious healthcare resources. Id.; Valentine, 2020 WL 1916883, at *15. The Court thus concludes that the third and fourth factors weigh heavily in favor of granting injunctive relief targeted at the triple threat.
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In sum, Plaintiffs have established the propriety of issuing injunctive relief, albeit on far narrower grounds than originally proposed. As more fully described in the accompanying order, Defendant must develop a comprehensive written plan to address systematic testing and identification of COVID-19 positive detainees; long term provision of PPE; increased training, education, and supervision of medical staff so that COVID-19 symptomatic and positive detainees receive timely and appropriate care; and prophylactic protections for high-risk detainees.
D. Medically Vulnerable Subclass § 2241 Petition As pleaded in Count III, Plaintiffs seek immediate release for the medically vulnerable subclass. ECF No. 2, ¶ 211; ECF No. 3-1 at 29. According to Plaintiffs, no set of conditions— even those granted in the accompanying order—can adequately ensure the safety of this subclass or the protection of their constitutional rights. Id. Plaintiffs therefore argue that this Court must release or place the entire subclass on home confinement immediately. Id. Plaintiffs’ request, at this juncture, fails under the traditional Winter factors because they have not shown a likelihood of success on the merits of the claim. See Winter, 555 U.S. at 20; Dewhurst, 649 F.3d at 290. As already discussed, the Court is not convinced that this subclass challenges the “fact of” confinement where the Complaint, read most favorably to the subclass, raises a panoply of conditions that affect all detainees at the Facility and, if remedied, would render release unnecessary. ECF No. 2 at 42–45. Thus, the Court cannot conclude that the claim survives as a matter of law. The Plaintiffs’ retort on this point lends to further confusion. At oral argument, the Plaintiffs pressed that the remedy they seek is not “release” but “transfer” to home confinement. Without even considering whether this distinction further undermines the legal sufficiency of the
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§ 2241 claim, such relief is not supported by the law on which Plaintiffs rely. “Transfer” contemplates moving the prisoner either to another detention facility or to a hospital for necessary medical treatment. See, e.g., Gray v. Cty. of Riverside, 5:13-cv-0444-VAP-OPX, at 4 (C.D. Cal., Apr. 14, 2020); United States v. Wallen, 177 F. Supp. 2d 455, 458, 459 (D. Md. 2001). Plaintiffs, in contrast, seek en masse release to their homes.
Plaintiffs, perhaps seeing the fault lines in this argument, next urge the Court to “release” the entire subclass on non-monetary bond pending the resolution of their petition. ECF No. 3-1 at 31; ECF No. 74 at 2. Plaintiffs argue that the Court maintains inherent authority to impose its own conditions of release pending final resolution of their habeas petition. See Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Martinez v. DelBalso, No. CV 19-5606, 2020 WL 1939717, at *1–4 (E.D. Pa. Apr. 22, 2020); Clark v. Hoffner, No. 16-11959, 2020 WL 1703870, at *2–5 (E.D. Mich. Apr. 8, 2020). Although rare, courts have ordered release where the “habeas petition raises substantial claims and . . . extraordinary circumstances exist that make the grant of bail necessary to make the habeas remedy effective.” Reno, 241 F.3d at 226. For a claim to be “substantial,” the petitioner must show a “likelihood of success on the merits” or, in other words, a “high probability of success.” Id. at 224, 226 n.5 (citing nonbinding cases).
Again, the request fails for the same reasons. Even if the Court credits that COVID-19 qualifies as an extraordinary circumstance, the claim is not “substantial” if likely to fail on the merits. Additionally, because relief short of release can adequately address the constitutional harms at present, Plaintiffs have also not demonstrated that release is “necessary to make the habeas remedy effective.” Reno, 241 F.3d at 226. Thus, the subclass has not convinced this Court that injunctive relief in the form of release is warranted.
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E. Over-detention Claims Plaintiffs also seek injunctive relief for a subclass of detainees whom Plaintiffs contend are currently held without any lawful authority due to their COVID-19 positive status. See ECF No. 3-1 at 17, 27–29. Defendant responds that the claim is moot because no COVID-19-positive detainee is currently held in violation of a state-court release order, ECF No. 29 at 12, and further acknowledged at the hearing that any such case would present a substantive due process violation. See generally Steele v. Cicchi, 855 F.3d 494, 502 (3d Cir. 2017); Lynch v. City of New York, 335 F. Supp. 3d 645, 654 (S.D.N.Y. 2018); Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir. 2009); Dodds v. Richardson, 614 F.3d 1185, 1193 (10th Cir. 2010), cert. denied, 131 S.Ct. 2150 (2011). Plaintiffs nonetheless press for injunctive relief, not for “release,” they say, but to enjoin Defendant from implementing a continuing “policy” of holding COVID-19 positive detainees who have satisfied court-ordered release conditions. See ECF No. 3-1 at 17, 27–29. Plaintiffs identify three detainees whose “overdetention” represents Defendant’s policy. The Court cannot agree with Plaintiffs’ position. The evidence reflects that in response to the pandemic, Defendant worked actively with state prosecutors, public defenders and the courts to reduce the entire detained population, and maintains such efforts to this day. Between March 1, 2020 and April 24, 2020—a matter of a couple months—the jail population at the Facility decreased from 720 inmates to 534 (approximately 26%). See ECF No. 29-3 at 10; ECF No. 65-1 at 6. During yesterday’s status conference, Defendant represented to the Court that the current detained population at the Facility was 544. Defendant’s actions thus fall in line with the evident policy to expedite the release detainees who satisfy the conditions of a state-court release order. Accordingly, the
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record does not support a “policy” of detaining COVID-19 positive detainees in contravention to a state-court release order. Plaintiffs’ proposed injunctive relief is denied.
III. Conclusion Plaintiffs have convinced the Court that temporary injunctive relief, narrowly drawn, is
proper. Likewise, Defendant appears willing and able to implement such relief, and the Court is encouraged that critical measures are underway to protect the health and safety of the Facility’s detainees. The ordered relief, which follows separately, will assure continued necessary progress.

5/21/2020 Date

/S/ Paula Xinis United States District Judge

33

 Case 8:20-cv-01028-PX Document 85 Filed 05/21/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH SETH, et al.,

*

Individually and on behalf of a class

of similarly situated persons,

*

Plaintiffs,

*

v.

*

Civil Action No. 8:20-cv-01028-PX

*

MARY LOU MCDONOUGH,

In her official capacity as

*

Director of the Prince George’s County

Department of Corrections,

*

Defendant.

* *** ORDER

For the reasons stated in the accompanying Memorandum Opinion, the Court finds that immediate injunctive relief is warranted and rules as follows:

1. Within five (5) days of this Order, Defendants shall file with the Court a comprehensive written plan or protocol regarding identification, monitoring, treatment, and housing of detainees who are “high risk” for suffering adverse outcomes if infected with COVID-19. High Risk detainees are:

Detainees who are aged 65 or over and/or who have any of the following conditions specifically identified by the United States Centers for Disease Control: (a) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (b) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (c) severe obesity (BMI of 40 or higher); (d) diabetes mellitus Type I or Type II; (e) gestational diabetes mellitus; (f) chronic kidney disease on dialysis; (g) chronic liver diseases, cirrhosis; and/or (g) serious heart conditions, including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension.

The plan must address specifically the steps the Facility will take to secure such High Risk detainees single-cell housing when appropriate.

Case 8:20-cv-01028-PX Document 85 Filed 05/21/20 Page 2 of 2
2. Within five (5) days of this Order, Defendants shall file with the Court a comprehensive written plan or protocol that addresses training, education, and supervision of Defendant’s staff (medical and corrections officers) on (a) identifying symptoms of COVID-19 in detainees; (b) rendering timely medical care to such detainees; (c) improving sick call response time for COVID-19 symptomatic detainees; and (d) ensuring regularity and accuracy of temperature checks.
3. Within five (5) days of this Order, Defendant shall file with this Court a comprehensive written plan or protocol that establishes (a) criteria for when to administer COVID-19 tests to current detainees and new detainees in initial 14-day quarantine; (b) the Facility’s plan for obtaining additional test kits as needed; (c) criteria for isolating, and releasing from isolation, COVID-19 positive and symptomatic detainees.
4. Within fourteen (14) and twenty-eight (28) days from this Order, the Defendant shall file with this Court (a) the total number of tests administered and the total number of confirmed COVID-19 positive detainees to date; (b) for each COVID-19 positive detainee detected after May 11, the date of positive result, his or her prior housing unit, the date of his or her transfer to isolation, and if applicable, the date of his or her return to general population.
5. Within fourteen (14) days from this Order, Defendant shall provide the Court a comprehensive written plan or protocol regarding continued (a) provision of soap to detainees and adequate cleaning supplies (e.g. Spray-Nine) to housing units; (b) social distancing measures; (c) provision of adequate supply of face masks for detainees; and (d) any other protocols or practices the Facility has otherwise implemented in response to Dr. Franco-Paredes’ May 11, 2020 report.
The Court finds that the above-described relief is narrowly drawn, extends no further than necessary, and is the least intrusive means necessary to prevent irreparable harm and injury to the Plaintiffs.
On June 22, 2020, at 1:00 p.m., the parties shall participate in a telephonic status conference with the Court to determine whether this order should be extended or modified. See Fed. R. Civ. P. 65(b)(2). By no later than June 19, 2020 at 5:00 p.m., parties are to submit simultaneous letter pleadings not to exceed five pages exclusive of exhibits as to whether continued relief is warranted.

5/21/2020 Date

/S/ Paula Xinis United States District Judge

2

 Case 8:20-cv-01028-PX Document 88 Filed 05/26/20 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH SETH, et al Plaintiffs
v. MARY LOU MCDONOUGH
Defendant

: : : :
: Case No. 8:20-cv-01028-PX
: : : :

DIRECTOR MARY LOU MCDONOUGH’S FIVE DAY RESPONSE TO THE COURT’S MAY 21, 2020 ORDER Defendant Mary Lou McDonough, in her official capacity as Director of the Prince George’s County Department of Corrections (“Director McDonough”), submits this Response to the Court’s May 21, 2020 Order (ECF 85, the “Order”) granting in part and denying in part Plaintiff’s Motion for a Temporary Restraining Order and Preliminary Injunction (ECF 3-1).1 This Response is meant to provide the submission of information required by the Order’s five day deadline.

1 Director McDonough expressly preserves any and all objections to the Court’s Order and Memorandum Opinion (ECF 84, 85), and nothing in this Response shall be construed as an admission by or a waiver of any objection Director McDonough may have to the Order and Memorandum Opinion. Nothing in this Response shall be construed as an admission of any kind by Director McDonough that the provision of medical care or any other condition of confinement relating to detainees at the Jail is unconstitutional or deficient in any way. Furthermore, nothing in this Response shall be construed as an admission of any kind by Director McDonough that the measures, processes, procedures, and/or policies described and/or referenced in this Response reflect the constitutionally minimum standards of care for detainees at the Jail. In fact, the measures, processes, procedures, and/or policies described and/or referenced in this Response far exceed the minimum standards of care and conditions of confinement required by the United States Constitution.
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INTRODUCTION Director McDonough continues to work diligently to combat the spread of the novel Coronavirus Disease 2019 (“COVID-19”) in the Prince George’s County Department of Corrections (“the Jail” or “PGCDOC”). Director McDonough, her correctional officers, and medical services staff, remain committed to the effort to protect the detainees housed at the Jail from COVID-19 and provide appropriate medical care to the detainees, including those detainees at “‘high risk’ for suffering adverse outcomes if infected with COVID-19.”2 (ECF 85 at 1). Director McDonough’s efforts continue to evolve as the United States Centers for Disease Control and Prevention (“CDC”) continues to provide additional information and guidance on prevention and control of the disease. Nevertheless, Director McDonough and the Jail’s medical services contractor, Corizon, LLC (“Corizon”), have invested and will continue to dedicate enormous resources and invest thoughtful analysis in the Jail’s ongoing strategy for protecting detainees at the Jail from the COVID-19 pandemic. Director McDonough worked diligently with her staff and the members of the leadership on the Jail’s medical staff to draft a response to the Court’s directive in the Order for a “plan or protocol” addressing various aspects of the Jail’s efforts to combat the COVID-19 pandemic. This Response reflects Director McDonough’s best effort to understand and respond to the Court’s directive. However, the Order remains ambiguous, confusing, and seemingly inconsistent with current circumstances at the Jail in a variety of respects. For example, and as discussed in more detail below, certain criteria in the Order’s definition of “high risk detainees” remains confusing
2 For the sake of consistency with the Court’s terminology, the term “high risk detainee” in this Response refers to the Order’s definition of this term. (ECF 85 at 1). For the reasons set forth below, the definition of “high risk” set forth in the Order remains ambiguous and confusing for a variety of reasons.
2

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and ambiguous. As another example, the directive to submit a plan “address[ing] training, education, and supervision of [the Jail’s medical and security staff] on … rendering timely medical care to such detainees … [and] improving Sick Call response time for COVID-19 symptomatic detainees” remains unclear to Director McDonough. Id at 2. Director McDonough responds to the Court’s Order based on her understanding of the Order but reserves the right to revise her response in light of further clarification.
This Response provides a comprehensive picture of the ongoing efforts by the Jail’s medical and security staffs to respond to the COVID-19 pandemic in light of the evolving understanding the disease. As set forth more fully below, the Response outlines the following areas with respect to Director McDonough’s plan for continuing to combat COVID-19 at the Jail:
(1) Director McDonough and her medical services leadership team will continue to ensure the appropriate identification, monitoring, treatment, and housing of “high risk detainees”;
(2) Director McDonough and her medical services leadership team will ensure the continued “training, education, and supervision” related to the identification of detainees with symptoms of COVID-19 and medical care for symptoms of COVID-19; and
(3) Director McDonough, with the assistance of Corizon, will continue testing for COVID-19 and isolating COVID-19 positive detainees and symptomatic detainees as necessary.
As confirmed in this Response, Director McDonough and the members of the Jail’s security and medical staffs continue to employ aggressive, comprehensive measures to combat the COVID-19 pandemic.
3

Case 8:20-cv-01028-PX Document 88 Filed 05/26/20 Page 4 of 21

DIRECTOR MCDONOUGH’S RESPONSE

I.

DIRECTOR MCDONOUGH WILL CONTINUE TO ENSURE THE APPROPRIATE

IDENTIFICATION, MONITORING, TREATMENT, AND HOUSING OF “HIGH RISK

DETAINEES.”

As directed by the Court, Director McDonough’s Response outlines a “comprehensive

written plan … regarding identification, monitoring, treatment, and housing of detainees who are

‘high risk’ for suffering adverse outcomes if infected with COVID-19.” (ECF 85 at 1).

A. The Court’s Definition of “High Risk Detainees.”

The Order defined “high risk” detainees as:

Detainees who are aged 65 or over and/or who have any of the following conditions specifically identified by the [CDC]: (a) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (b) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (c) severe obesity (BMI of 40 or higher); (d) diabetes mellitus Type I or Type II; (e) gestational diabetes mellitus; (f) chronic kidney disease on dialysis; (g) chronic liver diseases, cirrhosis; and/or (g) serious heart conditions including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension.

Id. Director McDonough understands that the Court derived this definition of a “high risk

detainee” from the current information provided by the CDC concerning “Groups at Higher Risk

for Severe Illness” from COVID-19.3

Director McDonough remains concerned with the Order’s definition of “high risk

detainees” for a variety of reasons. First, the Order’s definition omits a critical phrase in the CDC’s

guidance for identifying possibly high-risk individuals which permitted the exercise of medical

3 See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html (last accessed on May 24, 2020).
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judgment. In identifying certain medical conditions which “might [place someone] at higher risk for severe illness from COVID-19,” the CDC qualified the list of medical conditions by noting a potential risk “particularly if [the condition was] not well controlled.” Id, (emphasis added). Stated differently, the CDC expressly acknowledged that the listed medical conditions might not place someone at higher risk from COVID-19 if the condition were well controlled. By omitting this key qualifier, the Order’s definition of “high risk detainees” prevents the members of the Jail’s medical staff from exercising their medical judgment and determining that a detainee might not be at high risk from COVID-19 because his or her medical condition is well controlled.
The Order’s definition of “high risk detainees” also contains ambiguity which creates uncertainty and confusion for Director McDonough and the members of the Jail’s medical staff in seeking to comply with the Order. For example, the Order defines as “high risk” any detainee with a “chronic lung disease,” “immunocompromised status,” “prolonged use of corticosteroids,” “chronic liver disease[ ],” or “serious heart condition[ ].” (ECF 85 at 1). Although the Order provides some examples of these conditions, it does not define these conditions or provide Director McDonough with any guidance in how to define these terms. This lack of certainty with respect to these terms will create challenges for identifying and, therefore, the monitoring, treating, and housing of detainees who might have such conditions. For example, without conducting a liver biopsy of every detainee, Director McDonough could not know whether a detainee has fatty liver disease. Similarly, the members of the Jail’s medical staff could not conclusively determine whether a detainee had a “prolonged use of corticosteroids,” particularly when the Order does not define what constitutes “prolonged” use. In short, the ambiguity in the Order’s definition of “high risk detainees” places Director McDonough at risk of becoming non-compliant with the Court’s Order by not knowing whether a detainee should be designated as “high risk.”
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B. Identifying “High Risk Detainees.” Notwithstanding Director McDonough’s concerns regarding the Order’s definition of “high risk detainees,” the members of the Jail’s medical staff will employ a multi-faceted approach to identify detainees potentially qualifying as “high risk detainees.” This approach builds on the Chronic Care Clinic process utilized by the Jail’s medical staff to provide a system for identifying “high risk detainees” to the greatest extent reasonably possible. As described below, the members of the Jail’s medical staff will cross reference medication administration records with the list of patients currently enrolled in the Chronic Care Clinic process to identify any detainees who might qualify as “high risk” but are not in the Chronic Care Clinic. The Jail’s medical staff will enroll these individuals in the Chronic Care Clinic process for close monitoring of their medical conditions. Furthermore, the members of the medical staff will continue to rely on the medical assessments and evaluations conducted as part of the Intake and Sick Call processes for identifying detainees who may begin exhibiting symptoms of a medical condition qualifying them as “high risk.” i. Chronic Care Clinic. The Chronic Care Clinic process serves as the foundation for the process of identifying “high risk detainees.” Patients at the Jail with chronic medical conditions are automatically enrolled in the Chronic Care Clinic. The members of the Jail’s medical staff evaluate and treat certain pre-defined chronic medical conditions through the Chronic Care Clinic such as, for example, asthma, chronic lung diseases, severe obesity, hypertension, any serious heart condition, diabetes, gastroesophageal reflux disease, kidney diseases (including diseases requiring a patient to undergo dialysis), chronic obstructive pulmonary disease, liver diseases, hyperlipidemia, as well as others. In addition, as a general matter, the medical staff will enroll a patient in the Chronic
6

Case 8:20-cv-01028-PX Document 88 Filed 05/26/20 Page 7 of 21
Care Clinic if the patient is elderly (65 years or older) or immunocompromised. Thus, the Jail’s Chronic Care Clinic process includes, but is not limited to, those patients at the Jail who fall within the criteria issued by the CDC for identifying individuals “who might face a higher risk of severe illness from COVID-19.” The Jail’s medical staff maintains a log of the patients enrolled in the Chronic Care Clinic.
As a short-term measure, the members of the Jail’s medical staff will cross reference the list of patients reflected in the chronic care log with the medication administration records for the Jail. If the medical staff identifies any detainee who is currently prescribed with a medication for treating one of the medical conditions qualifying the detainee as “high risk,” the medical staff will enroll the detainee in the Chronic Care Clinic. Thus, the Chronic Care Clinic log will provide the long-term basis for tracking “high risk” detainees at the Jail.
The Intake and Sick Call processes provide the routine procedures for identifying “high risk detainees” and for enrolling in the Chronic Care Clinic process. A detainee is enrolled in the Chronic Care Clinic following an evaluation by a provider who then diagnoses, or verifies a preexisting diagnosis, a chronic medical condition. The provider’s decision to place a detainee on the chronic care list may occur during the Intake process or at any subsequent point during the patient’s time at the Jail.
ii. Intake Process. Every detainee undergoes a nursing assessment, medical history screening, and an evaluation by a medical provider during the Intake process. A nurse conducts a screening and assessment of each detainee within a few hours of his or her commitment into the Jail. [See Exhibit One - Intake and Receiving Screening Form]. During the Intake assessment, the nurse will take the detainee’s vital signs, including temperature, respiration, blood pressure, and will also
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calculate the detainee’s body mass index. Additionally, the nursing assessment includes a screening for symptoms of COVID-19 which has been updated to include all symptoms listed by the CDC. [See Exhibit Two – COVID-19 Screening Form, updated 5/1/2020]. The Intake nurse will also ask the detainee about his or her medical history and prescribed medications, documenting the responses on the Intake Screening Form.
If the nursing assessment or medical history screening indicates a detainee may have a medical condition qualifying him or her as a “high risk detainee,” the Intake nurse will refer the detainee to a medical provider for an evaluation without undue delay. [See Exhibit Three - Health Assessment - History]. If the nursing assessment or medical history screening does not indicate a detainee has a medical condition qualifying him or her as a “high risk detainee,” the detainee’s medical history and physical by a provider must occur within fourteen (14) days of the detainee’s arrival at the Jail. In any event, if the Intake evaluation by the provider leads to diagnosing a detainee with a medical condition qualifying the detainee as “high risk” or confirming such a preexisting diagnosis reported by the detainee, the provider will enroll the detainee in the Chronic Care Clinic.
iii. Sick Call Process. The members of the Jail’s medical staff will also continue utilizing the Sick Call process for identifying “high risk detainees” who begin exhibiting signs of a “high risk” condition after their commitment to the Jail. The Sick Call process is initiated when a detainee places a Sick Call request slip in one of the various Sick Call boxes located at the Jail or by handing a slip to a member of the medical or correctional staff. To the extent that a detainee requires urgent medical care, he or she may make an oral request to a member of the medical or security staff at any point
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in time. The members of the Jail’s medical staff will respond to an urgent need for medical attention without undue delay upon learning of the need for care and provide appropriate attention.
As a general matter, a registered nurse (RN) on the nursing staff will triage written Sick Call requests within twenty-four (24) hours. A member of the nursing staff will inform the relevant members of the correctional staff of who needs to be seen for Sick Call, and the correctional staff will bring those patients to the Medical Unit. Typically, a member of the Jail’s medical staff will see and, as necessary, begin treating a patient within forty-eight (48) hours after the nurse triaged the Sick Call request slip, or more quickly for urgent needs. If the nurse conducting the Sick Call screenings determines that a detainee exhibits symptoms of a “high risk” medical condition or otherwise requires a higher-level of treatment, the nurse will refer the detainee to a medical provider. A provider on the Jail’s medical staff will evaluate the detainee without undue delay and enroll him or her in the Chronic Care Clinic if the provider diagnoses a “high risk” condition. In handling Sick Calls, medical staff try to process one housing unit per day (depending on the number of requests) in order to avoid mixing inmates from different housing units. Although it may take longer for medical staff to get to a unit, these are for triaged, routine requests only. For emergent issues that are reported to staff or indicated on a Sick Call request form, immediate attention will be provided. A nurse will either go the housing unit to see the patient, or have the inmate come to the Medical Unit.
Thus, the Chronic Care Clinic process, the review of the medication administration records, the Intake and Sick Call processes, and the health history assessment will provide a comprehensive system for identifying “high risk detainees.”
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C. Monitoring and Treatment of “High Risk Detainees.” The Chronic Care Clinic process will ensure the known “high risk” detainees receive close monitoring and treatment of their medical conditions. The Chronic Care Clinic is designed to monitor and evaluate detainees with specific conditions that persist for more than six (6) months, including “high risk” conditions. As such, the Chronic Care Clinic process provides the members of the Jail’s medical staff with the tools for monitoring and treating the “high risk” detainees’ medical needs. Once a detainee is enrolled in a Chronic Care Clinic, providers on the medical staff determine, based upon the condition of the detainee, whether a detainee is seen at intervals of thirty (30), sixty (60), or ninety (90) days. During a chronic care visit, a detainee will undergo an evaluation by a provider on the Jail’s medical staff. A detainee will also undergo a nurse screening during the chronic care visit to assess the detainee’s vital signs. If either the evaluation or screening detects indications that the detainee may have COVID-19, the medical staff will test the detainee and place him or her in medical isolation pending the test’s results. Medical staff also remind the detainees during the Chronic Care Clinic visits to alert the medical staff to any changes in the detainees’ symptoms and expressly instruct them regarding symptoms of COVID-19. This is in addition to the posted information and general announcements made in the housing units to all inmates regarding COVID-19. Furthermore, the members of the Jail’s medical staff will continue to monitor the “high risk detainees” through other medical processes in addition to the Chronic Care Clinic. The Chronic Care Clinic’s log assists the medical staff, including the nurses, in tracking and monitoring “high risk detainees.” The members of the Jail’s medical staff will respond without undue delay in the event that any “high risk detainee” reports or exhibits a symptom of COVID-19. For example, the Sick Call nurses will assess and triage without undue delay any “high risk detainee”
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submitting a Sick Call request indicating that the patient is experiencing a possible symptom of COVID-19. Additionally, every detainee in every housing unit will receive a daily temperature check and will be screened for symptoms including cough, chills, sore throat, headache, muscle pain, nausea and vomiting, and new loss of taste or smell. [See Exhibit Four - COVID Daily Screening Form].
Furthermore, members of the Jail’s nursing staff enter each housing unit at the Jail twice a day for purposes of administering medications. Most, if not all, of the “high risk detainees” take medications on at least a daily basis. During the twice-daily medication administration in the housing units, the nurses will ask the “high risk detainees” about, and otherwise look for, any symptoms indicating those patients might have COVID-19.
Additionally, the Jail’s medical staff updated its guidance relating any detainee, including “high risk detainees,” seeking medical attention for symptoms of COVID-19. This updated guidance calls for the medical staff to notify members of the correctional staff to provide any detainee reporting a symptom of COVID-19 with a surgical mask, and to escort the detainee to the medical unit as soon as possible.4 Upon arrival in the Medical Unit, a member of the nursing staff will assess the detainee prior to other detainees. While in the Medical Unit, the correctional staff will keep the detainee away from other detainees. A member of the Jail’s medical staff will assess any detainee reporting a symptom of COVID-19 utilizing the update COVID-19 assessment form.
If the medical assessment of a “high risk detainee” detects symptoms of COVID-19, the members of the Jail’s medical staff will administer a test to the detainee and place him or her in medical isolation. The medical staff will require any detainee who has been tested to remain in
4 Currently, every detainee has been provided a mask, and receives a new one every five days. If a detainee to be transported to Medical is missing his or her mask, correctional officers are to ensure that the detainees have a mask prior to transport.
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medical isolation pending the test results. If the test results are negative, the detainee returns to his or her housing unit. If the test results are positive, the detainee will remain isolated for fourteen (14) days to ensure the detainee does not remain contagious, even though he or she might be asymptomatic.
Detainees in medical isolation receive ready access to the members of the medical staff. The medical isolation cells are located in the Medical Unit. Members of the Jail’s nursing staff make rounds on the patients in medical isolation multiple times a day to check on their status, take vital signs, and assess any changes in their condition. Medical staff will remain acutely alert to any indications that a “high risk detainee” in medical isolation may be experiencing severe illness as a result of COVID-19. Furthermore, in the event that a “high risk detainee”, or any other patient, develops a severe illness due to COVID-19 which requires specialized or emergency care which the Jail’s medical staff could not provide, the medical staff will initiate the process of transporting the detainee to a hospital to receive the necessary care without undue delay.
D. Housing of “High Risk Detainees.” In consultation with Dr. Meskerem Asresahegn, the Jail’s Medical Director, Director McDonough previously decided against housing all of the “high risk detainees” together in a common housing unit or units. Spreading the “high risk detainees” throughout the Jail into various housing units reduced the likelihood of an increased infection rate among the “high risk detainees” from the introduction of a single infected detainee into a housing unit. As discussed above, Director McDonough will house any “high risk detainee” who tests positive for COVID-19 or is awaiting testing results in a medical isolation cell. At this point in time, almost all previously identified “high risk detainees” are each housed in his or her own cell within their housing units. Director McDonough is taking all the necessary
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steps to relocate all “high risk detainees” to single cells whenever possible. Each "high risk" detainee has a note placed on their tracking file indicating he/she is to be housed alone whenever possible. Housing Unit Officers will single cell such inmates, provided that there is available space and there are no classification issues such as co-defendants, or “keep separates,”5 preventing a single cell assignment. The State is accepting 25 inmates from PGCDOC on May 26, 2020, which should help with creating additional space to house high risk inmates in their own cells.
II. DIRECTOR MCDONOUGH WILL ENSURE THE CONTINUED “TRAINING, EDUCATION, AND SUPERVISION” RELATED TO THE IDENTIFICATION OF DETAINEES WITH SYMPTOMS OF COVID-19 AND MEDICAL CARE FOR DETAINEES WITH SYMPTOMS OF COVID-19. Director McDonough’s Response will ensure that members of the Jail’s medical and
security staff receive “training, education, and supervision … on (a) identifying symptoms of COVID-19 in detainees; (b) rendering timely medical care to such detainees; (c) improving sick call response time for COVID-19 symptomatic detainees; and (d) ensuring regularity and accuracy of temperature checks.” (ECF 85 at 2).
A. Training, Education and Supervision of Medical Staff. Corizon provides comprehensive training for all members of the Jail’s medical staff on issues related to identifying symptoms of COVID-19 and providing appropriate care for patients with or suspected of having COVID-19. Corizon continues to update its training and educational materials as the medical community’s understanding of the virus evolves. At the beginning of each week, the Health Services Administrator on the Jail’s medical staff, Abu Kalokoh,
5 A designation of “keep separate” indicates that an inmate has a conflict with another inmate that warrants a housing assignment that keeps those inmates apart, such as being co-defendants, a “victim” or “enemy” designation, a threat based on gang affiliation, court stay-away orders, or similar conflicts. If such a designation is made for one or more inmates to kept separate from a particular inmate, it limits the ability to classify certain detainees into certain housing units. A detainee cannot be moved into a housing unit if he/she has a “keep separate” there.
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disseminates updated training information on COVID-19 to the members of the medical staff. Each member of the medical staff must sign a form acknowledging they received and reviewed the updated training and informational material. Additionally, while large in-person staff meetings remain unadvisable, members of the Jail’s medical staff continue to meet in groups of three (3) to four (4) people to review and discuss updated training and educational materials.
Corizon will ensure the Jail’s medical staff receive training and education on identifying symptoms of COVID-19, providing timely, appropriate medical care for symptomatic detainees, responding to Sick Call requests reporting symptoms of COVID-19 as quickly as possible, and ensuring the regularity and accuracy of temperature checks. The weekly training will include these training topics as necessary to ensure the members of the Jail’s medical staff undergo appropriate training. For example, Corizon will ensure the members of the medical staff continue receiving training and guidance on utilization of the updated COVID-19 screening form and the updated process for triaging requests for care by patients exhibiting or reporting symptoms of COVID-19.
The supervisors on the Jail’s medical staff will continue providing oversight as the members of the medical staff work to identify and provide care to detainees exhibiting symptoms of COVID-19. The Health Services Administrator will direct the quality assurance process to conduct a weekly review of documentation related to the care sought by and provided to patients reporting symptoms of COVID-19 to address the appropriateness and timeliness of care. For example, the supervisors on the Jail’s medical staff will review selections of completed COVID19 screening forms to assess the thoroughness of the screenings and measures taken in response to the information gleaned from the screenings. The supervisors will take any corrective action as necessary to provide additional instruction for members of the nursing staff who fail to correctly screen for the virus. Similarly, the Health Services Administrator and the Director of Nursing will
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Case 8:20-cv-01028-PX Document 88 Filed 05/26/20 Page 15 of 21
review a sample of the Sick Call requests and the Sick Call log to determine the timeliness and appropriateness of responses to requests for care.
They will also review the logs for temperature checks to ensure the members of the nursing staff complete timely, accurate checks. Thermometers will be inspected daily for accuracy and proper calibration. Twelve additional thermometers have been ordered by PGCDOC as a backup to the current infrared thermometers.
In addition to reviewing documentation, supervisors will observe members of the medical staff as they engage in the various functions related to identifying and treating symptomatic patients. The supervisors will take appropriate follow-up action, including providing additional training and education, as necessary.
B. Training, Education and Supervision of Correctional Officers. Each correctional officer will undergo a two-hour training module through e-Learning that will provide information about COVID-19 symptoms, transmission, and safety measures to employ personally and in the work place. This training will include instruction on the use of personal protective equipment, identifying signs and symptoms of COVID, cohorting and protocols to follow if he/she believes someone has been exposed to COVID-19. Upon completing the training, a test will be administered, and officers must obtain an 80% or better as a passing score. Correctional supervisors will ensure that officers under their command take the training in a timely fashion. Similar training modules will be administered on a quarterly basis specific to COVID-19 until the pandemic has abated. In addition, officers will receive bulletins by email with any updated CDC guidance or information, for which he/she must indicate receipt electronically or manually provide a signature to a staff member.
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A supervisor (a sergeant or higher) will visit each housing unit a minimum of three (3) times per shift. During the visit, he/she will inspect all log entries, ensure that proper observations and symptom checks are occurring and are documented in the Offender Management System (“OMS”), that cohort integrity is being upheld on each break, and that proper social distancing protocols are being observed. If there are any issues noted in the log book regarding the provision of PPE, hygiene or cleaning supplies, or other safety protocols related to COVID-19, the supervisor will make personal contact with the inmate to ensure the inmate has all appropriate supplies or follow up as appropriate. The supervisor will also ensure there is an ample supply of Sick Call, Inmate Request and Grievance Forms in each housing unit. III. DIRECTOR MCDONOUGH WILL CONTINUE TESTING FOR COVID-19 AND ISOLATING
COVID-19 POSITIVE DETAINEES AND SYMPTOMATIC DETAINEES AS NECESSARY. A. Testing Current and New Detainees for COVID-19. The recent nationwide expansion in testing capability and increased supply of COVID-19 tests provided additional testing capability at the Jail that was previously unavailable. On Monday May 18, 2010, 300 COVID-19 viral test kits 6 were received through the assistance of Corizon. These test kits allowed for PGCDOC to begin testing asymptomatic inmates assigned to the four housing Units, as recommended by Dr. Carlo Franco-Paredes. On Friday, May 26, 2020, another 300 test kits were delivered to the Jail. As a voluntary measure far exceeding constitutional requirements, Director McDonough recently decided to take advantage of the increased supply of testing kits to greatly expand testing at the Jail, authorizing the testing of all detainees currently at the Jail. As of the filing of this Response, the Jail had obtained sufficient testing kits to test all of the detainees at the Jail. The
6 A viral test is used to determine whether a current COVID-19 infection is present. 16

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Jail’s medical staff currently anticipates completing this testing before June 1, 2020. Additionally, Director McDonough directed that all incoming detainees undergo testing in Processing, prior to placement in a permanent housing unit. It takes 48-72 hours for test results to come back. The recent increase in testing availability in the State may slow result times, as do weekends. All test results are reported to the Prince George’s County Health Department.
Once testing in the two Initial Housing units (H2 and H8) was completed, PGCDOC began the ongoing process of testing all newly committed inmates in Processing before being moved to an Initial Housing Unit. Any inmates with positive results will be moved to the Medical Unit for isolation and treatment. As of May 21, 2020, all current inmates in these two Housing Units were tested. Any new inmates arriving in the Unit are now tested in Processing.
While awaiting test results, detainees are separated and housed individually in cells in the downstairs area of the Housing Unit.7 Until results are returned, detainees remain on 23-hour lockdown, with the exception of being allowed access to phones and showering daily. All inmates in these Initial Housing Units will be quarantined and continue to be screened for symptoms twice per day by medical personnel for at least 14 days before being moved to any permanent Housing Unit. [See Exhibit Four]. If a test results in a positive case, the remaining inmates are quarantined for an additional 14 days after exposure. If a test comes back negative and the inmate is asymptomatic, the detainee can be let out of his or her cell in a cohort of no more than 10 detainees at a time during the remainder of the 14-day quarantine period. Once the initial quarantine period has been completed, the detainee is assigned to a housing unit.
7 Providing single cells for detainees pending return of their test results is possible because of the current number of arrests. Should those numbers rise and providing single cells pending results no longer be feasible in light of space, Director McDonough will consider alternative methods to ensure incoming inmates do not pose a risk of exposure to the existing population of the Jail.
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B. Plan for Obtaining Additional Test Kits. Director McDonough expects to receive sufficient testing kits through Corizon to continue testing detainees going through the Intake process so long as the current rate of approximately twenty (20) new inmates a day remains the same.8 If more test kits are required to meet PGCDOC’s needs beyond what Corizon is able to provide, Director McDonough will again make requests to County and State Health Departments for those resources. Incoming detainees will continue to be isolated from the general population of inmates for fourteen (14) days, pending confirmation of a negative test. C. Criteria for Isolating and Releasing COVID-19 Positive and Symptomatic
Detainees. The members of the Jail’s medical staff will continue relying on guidelines provided by Corizon’s clinical leaders and the CDC as testing becomes necessary following this initial round of testing for all detainees and the testing during the Intake process. If a detainee exhibits symptoms of COVID-19, including a temperature measuring above 100.4 degrees, the medical staff will request for the patient to be brought to the Medical Unit. Once the detainee arrives in the Unit, the medical staff will check his or her temperature a second time and assess for other symptoms. [See Exhibit Two]. If the detainee exhibits symptoms consistent with COVID-19, the medical staff will administer a test and isolate the detainee. If the detainee tests negative, he or she is returned to their housing unit.
8 This testing of new intakes remains subject to the availability of testing supplies. While Corizon currently has access to sufficient supplies, future events out of the control of Director McDonough and Corizon could interrupt access to these supplies, including a spike in demand for testing kits.
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i. Medical Isolation. If a test result is positive, a symptomatic detainee will remain isolated for fourteen (14) days in the Medical Unit. Once they become asymptomatic, they will be moved to Housing Unit 6, which only houses inmates that have tested positive for COVID-19 that are not displaying symptoms. An asymptomatic detainee with a positive test result will remain isolated in Housing Unit 6 in his/her own cell to ensure the patient does not remain contagious. The inmate’s symptoms and temperature will be taken twice a day and if any symptoms occur, he/she will be moved back to the Medical Unit. Housing Unit 6 is equipped with showers, inmate telephones and a recreation yard, as well as a large common space for relaxation and reading. Inmates housed in this Unit have access to these features while maintaining isolation from inmates in other housing units who have not tested positive. Mental health treatment will still be provided to inmates, on a one on one basis, during medical isolation. Inmates will remain in medical isolation for at least fourteen days with no symptoms, which is four days longer than recommended by CDC. ii. Quarantine. Quarantine will be used for those inmates who have had close contact with another inmate who tested positive for COVID-19. Despite having a negative result from the test performed in Processing, any inmate that later displays symptoms of COVID-19 will be tested. In the event a negative test result is received for an asymptomatic inmate, but a concern exists that he/she may have been exposed, a 14-day quarantine will be imposed. In the case of a positive case in a Housing Unit (not Initial Housing), all inmates in the same Housing Unit will be quarantined, regardless of whether they reside on the top or bottom level of the unit. Quarantined inmates will remain in the Housing Unit in which they are currently living, but will undergo twice-daily screenings for all symptoms, as recommended by the CDC,
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for 14 days. [See Exhibit Four]. During this screening, special attention will be given to “high risk detainees,” whose names will be highlighted on the unit rosters for medical staff to ensure close monitoring of their health conditions as described above. Inmates will only be allowed out of their quarantined unit to go to the Medical Unit. Quarantined inmates will have access to showers, inmate phones, televisions, recreation yards and the large common room areas within their own Housing Units. Similar to medical isolation, mental health treatment is provided to inmates during this time. At the end of the quarantine period, inmates will be re-tested for COVID19. Upon receiving a negative test result, the inmate will be released from quarantine status.
If the positive inmate had a cellmate, the cellmate will be moved to another cell by himself, and the previous cell will be locked and kept empty until it is thoroughly cleaned by a contracted cleaning crew using CDC recommended cleaning and disinfecting methods. Cellmates of infected inmates who have tested negative will be thoroughly screened by medical personnel and then placed on the twice per day screening protocol like all other inmates in the Unit.
In the case of a detainee who makes bond or is released prior to a positive test result being returned, PGCDOC will contact the Prince George’s County Health Department, who will make the necessary notifications. Under no circumstances would an individual be held by the Jail contrary to a court order pending test results or quarantine completion.
All protocols for quarantine, medical isolation and testing will be subject to regular review by the Jail’s Medical Director and subject to change based on new information made available about COVID-19. Any deviation from CDC guidance by the Jail, if any, would only be done at the direction of the Medical Director.
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Filed: 05/26/2020

Respectfully submitted,
RHONDA L. WEAVER COUNTY ATTORNEY
ANDREW J. MURRAY DEPUTY COUNTY ATTORNEY
______________/s/________________ Ann E. Koshy, Fed. Bar No. 19333 Shelley L. Johnson - Fed Bar No. 15853 Associate County Attorneys PRINCE GEORGE’S COUNTY OFFICE OF LAW Wayne K. Curry Administration Building 1301 McCormick Drive, Suite 4100 Largo, MD 20774 Direct: (301) 952-2842; Fax: (301) 952-3071 aekoshy@co.pg.md.us sljohnson@co.pg.md.us

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Case 8:20-cv-01028-PX Document 88-1 Filed 05/26/20 PagEex1hoibf i4t One

Case 8:20-cv-01028-PX Document 88-1 Filed 05/26/20 Page 2 of 4

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Case 8:20-cv-01028-PX Document 88-2 Filed 05/26/20 Page 1 of 1Exhibit Two

Case 8:20-cv-01028-PX Document 88-3 Filed 05/26/20 Page 1 of 4 Exhibit Three

Health Assessment - History

Last Name:

First:

MI:

ID:

Date:

Time:

AM PM Sex:

Male

Female DOB:

Alias:

Intake form reviewed:

Yes No If no, reason:

History & Physical refused:

Interpreter used: Yes No Name:

Service:

Is there anything you forgot to mention or felt uncomfortable bringing up in your intake screening: No

HISTORY

Major Surgical History (within past year)

Yes No Medical Hospitalizations (within past year)

Ye s :
Ever had transplant surgery:

Due to traumatic injury

Brain surgery Heart surgery

No Yes:

Kidney Other:

Yes No No Yes

Abdominal Surgery

Other

Past Significant Surgery: No Yes:

Give dates:

Female History

N/A

Date of last menstrual period?

Pregnancies: # Full term

Are you currently pregnant: Yes No Maybe/Don't Know Last pregnancy:

Pregnancy Test Result:

Refus ed Pos Neg

# Premature:

Schedul e N/A

# Abortions:

Describe N/A:

Last abortion:

Fingerstick result (if pregnancy test Positive) :

# Living children:

MEDICATIONS: Are you currently taking any medications: No

NAME/DOSE

SIG

ROUTE

No Yes Pap smear:

Unknown None

Date of last:

Result: Normal Abnormal Don't know

Mammogram: Unknown None

Date of last:

Result: Normal Abnormal Don't know

Yes See Additional Comments

LAST DOSE

REASON

ALLERGIES - Do you have any allergies (food, medication, environmental) No Yes

ALLERGY

REACTION TYPE

ALLERGY

See a tta ched REACTION TYPE

Do you smoke: Current

Fo rme r

Alcohol Use

Do you drink alcohol? Yes No What:

Ne ve r

Tobacco Use

Amount:

packs/day

How long:

Substance/Drug Use

Do you use drugs: Yes No Do you use injectable drugs: Yes No

Last use:

How much:

Last use of injectable drugs:

How often:

Rx or Street

How often? How much? Last use?

Prior treatment program: Yes No

Heroi n

Hx of withdrawal

Excessive Drinker: Yes (CIWA) No

Na rcoti cs

Hx of withdrawal

Ever had alcohol withdrawals, tremors, seizures, or DTs associated with

Be n zod i a ze pi n e s

Hx of withdrawal

stopping alcohol: Yes (CIWA) No

Methampheta mi nes Coca i ne Other:

If yes, when: Hepatitis

STD’s

Prior treatment program: COMMUNICABLE DISEASE

Yes No

Have you ever had hepatitis: Yes No Have you ever had an STD Yes No

Trea ted Do you currently have symptoms?

Hep B:

Yes No Syphilis

Yes No

Trea ted

Ye s

No

Hep C:

Yes No Gonorrhea

Yes No

Trea ted Describe:

Other:

Chlamydia

Yes No

Trea ted

Herpes

Yes No

Trea ted Would you like to be tested for syphilis?

CS1102

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Case 8:20-cv-01028-PX Document 88-3 Filed 05/26/20 Page 2 of 4

Last Name:

Other: First:

Yes No

Tre a te d M :

Ye s

D e cl i n e d

ID:

HIV/AIDS

Viral load

T-Cell(CD4)

History of opportunistic infections?

Do you have HIV infection or AIDS: Yes No

Yes No

Yes No

None

Th ru s h

PCP Toxo

Are you currently getting medication(s):

Viral Load #

Count:

Zoster Cryptococca l Meni gi ti s

Yes No

When:

When:

Have you been treated? Yes

No

When diagnosed:

Unknown

Unknown

Are you currently receiving OI meds: Yes No

TB Symptoms

TB

Do you have:

Have you ever had a skin test for TB:

Have you ever had active TB: Yes No

Weight loss

Yes No

Yes No Don't Know If yes, where diagnosed:

Night sweats

Yes No Prior + PPD:

Date of diagnosis:

Treated: Yes No

Fever

Yes No

Yes No Don't Know Pendi ng Duration of treatment:

Persistent cough>2 weeks Yes No Date of last PPD:

Have you had a chest x-ray in the past year: Yes No

Coughing Blood

Yes No Have you ever been treated for LTBI:

Date of last chest x-ray:

Weak/Tired

Yes No

Yes No Result:

Normal Abnorma l

Loss of appetite

Yes No Duration of treatment:

Pendi ng Don't know

CHRONIC ILLNESSES

Asthma (If no, next section)

Cardiovascular Disease (ask each question)

Cerebrovascular Disease (If no, next section)

Do you have asthma: Yes No Have you ever had any of the following problems with your heart: Have you ever had:

How long:

Angina

No Yes Stents

No Yes CVA (Stroke):

Yes No

Last episode: Last ER date: Last hospitalization:

CHF

No Yes Atrial fibrillation No Yes When was last:

Endocarditis

No

Ye s

Blood clots in legs or lungs:

No Yes TIA (Mini – Stroke): Yes

No

Heart attack: No Yes Date of onset:

When was last:

Have you ever had a tube put down your Internal defibrillator:

No Yes Date:

Comments:

throat so that a machine breathes for Pacemaker:

No Yes Date:

you:

Yes No

Bypass surgery:

No Yes Date:

Currently on steroids: Yes No Heart valve replacement: No Yes Date:

Peak Flow: Yes #:

Are you getting Warfarin, Jantoven or Coumadin?

No Yes

Not ta ken Why:

Diabetes (If no, next section)

Hypertension (If no, next section)

Epilepsy/Seizure (If no, next section)

Have you ever had diabetes or a problem with high Have you ever had high blood pressure Have you ever had a seizure or convulsion: Yes No

blood sugar?

Yes No

or hypertension: Yes No

Frequency greater than once a month:

Yes No

How long?

How long:

Two or more anticonvulsants:

Yes No

Have you been getting your fingersticks?

Are you currently getting medication(s): Are you getting medication for seizure:

Yes No

No Yes Res ul t:

Yes No Last seizure:

Are you currently getting medications: Yes No Three or more anti-hypertensives:

Comments:

Are you currently getting insulin:

Yes No

Yes No

Ever hospitalized for diabetes: Yes No

Gastrointestinal (If no, next section)

Have you ever been treated for problems with stomach or bowels: Yes No

Have you ever vomited blood: Yes No

Frequency:

Last:

Comments:

Ever had dark, black stools from bleeding: Yes No Frequency:

Last:

Comments:

Have you ever been told you have cirrhosis: Yes No

Comments:

COPD/Emphysema (If no, next section)

CS1102

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Case 8:20-cv-01028-PX Document 88-3 Filed 05/26/20 Page 3 of 4

Do you have COPD or emphysema: Yes No

Ever been on a respirator:

Yes No

O2 Dependent: CPAP:

Yes No Yes No

Hospitalization: Yes No Date:

Last Name:

First:

MI:

ID:

Cancer (If no, next section)

Dialysis (If no, next section)

Have you ever had cancer:

Yes

No

Are you currently on dialysis:

Yes No

Do you currently have cancer: Yes

No

Are you getting your dialysis treatments:

Yes No

What type of cancer:

Type:

Hemodi a l ys i s Peri tonea l

Are you currently being treated for cancer: Yes No

Number of times per week:

When diagnosed:

Last dialyzed:

Treatment: None Chemo Ra di a ti on Surgery

Other Current Significant Medical Conditions:

Othe r:

Referral Needed: Yes No

BEHAVIORAL HEALTH

Past or current mental illness complaint: Yes No Describe:

Do you have a history of a mental health disorder: Yes No

Family history of mental illness: Yes No

Diagnosed with a mental illness: No Yes : What is your disease: Bi pol ar Ma jor Depres s i on Schi zophreni a Other:

Do you feel like there is nothing to look forward to (hopeless or helpless): Yes No Do you have thoughts about hurting yourself: Yes No

Family/friends history of suicide: Yes No

Recent significant loss:

Yes No

History of suicide attempt(s): No Yes : Last attempt:

Are you thinking of suicide now: Yes No

History of psych hospitalization:

No Yes :

Within last year:

Yes No

History of outpatient psychotherapy / group therapy:

No Yes

Within last year:

Yes No

Are you currently getting psychotropic medications:

Yes No

History of hearing things: Yes No

History of seeing things: Yes No

Do you have thoughts of hurting others: Yes No

History of violent behavior: Yes No

History of victimization: Yes No

History of sex offenses:

Yes No

Neurological deficit: Yes No If yes, describe:

ADDITIONAL COMMENTS

CS1102

SIGNATURE (Signature required if history completed separately.)

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Case 8:20-cv-01028-PX Document 88-3 Filed 05/26/20 Page 4 of 4

Interviewer’s Name (Print/Stamp)

Interviewer’s Signature

Date

Time

CS1102

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© 2015 Corizon Health, Inc. All rights reserved.

Exhibit Four ENTER TEMP CHILLS SORE THROAT HEADACHE MUSCLE PAN N/V SNEMEWLLLOSS of TASTE or

Case 8:20-cv-01028-PX Document 88-4 Filed 05/26/20 Page 1 of 2
COVID-19 SYMPTOM SCREENING TOOL DATE_______________ NURSE COMPLETING SCREEN ______________________U_N__IT____________________ SHIFT____________
If yes to Cough/SOB and/or yes to at least 2 of the additional symptoms , place surgical mask on patient and send to Medical Unit for further assessment. SYMPTOMS: Please note (Y) for YES or (N) for No, (NA) for not applicable
Additional Symptoms

Patient Last Name Patient First Name

INMATE NUMBER

CHRONIC CARE CONDITION/
HIGH RISK

Cough and/or SOB?

Case 8:20-cv-01028-PX Document 88-4 Filed 05/26/20 Page 2 of 2

 Case 8:20-cv-01028-PX Document 90 Filed 05/27/20 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH SETH, et al., Individually and on behalf of a class of similarly situated persons
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections

Civil Action No. 8:20-cv-01028-PX

Defendant-Respondent.

DEFENDANT’S OPPOSED EMERGENCY MOTION TO STAY PENDING APPEAL Defendant Mary Lou McDonough, by and through the Prince George’s County Office of
Law, pursuant to Federal Rule of Civil Procedure 62(d), moves to stay the Injunction entered on May 21, 2020 [ECF 84 and 85], pending its appeal of the Court’s entry of Temporary Restraining Order and Preliminary Injunction, and in support states the following:
I. INTRODUCTION On May 21, 2020, at approximately 5:01 p.m. [ECF 84 and 85], this Court entered a
temporary restraining order and preliminary injunction directing the Defendant to take certain enumerated actions concerning the Prince George’s County Department of Corrections’ (“PGCDOC”) response to COVID-19 as it pertains to “high risk” detainees, facility testing, cleaning, and education. The Defendant filed a notice of appeal of that order to the U.S. Court of Appeals for the Fourth Circuit [ECF No. 86.] Pursuant to Federal Rule of Civil Procedure 62(d) and Federal Rules of Appellate Procedure 8, the Defendant moves the Court stay its order
1

Case 8:20-cv-01028-PX Document 90 Filed 05/27/20 Page 2 of 11
pending appeal and respectfully requests a ruling on this emergency motion to stay by May 29, 2020 at 3:00 p.m.
II. LEGAL STANDARD Federal Rule of Civil Procedure 62(d) provides that “while an appeal is pending from an
interlocutory order or final judgment that grants, continues, modifies, refuses, dissolves, or dissolve or modify an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.”
Courts consider four factors in deciding whether to grant a stay pending appeal: (1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) whether the public interest lies. Nkwn v. Holder, 556 U.S. 418, 434 (2009).
III. ARGUMENT A. The Defendant is Likely to Succeed on the Merits Because the Record Does Not Establish That the Director of PGCDOC Acted With Deliberate Indifference
A stay in the above captioned matter is warranted because Defendant is likely to prevail on the merits of her appeal for the reasons stated in Defendant’s Response in Opposition to Plaintiff’s Emergency Motion for Temporary Restraining Order [ECF 29], Supplemental to Response in Opposition to Plaintiff’s Emergency Motion for Temporary Restraining Oder [ECF 36], Defendant’s Response to [ECF 24] Court Order Attachment A [ECF 37], Supplemental to ECF 29 Response in Opposition to Emergency Motion for Temporary Restraining Order [ECF 38], Supplemental to ECF 29 Response in Opposition to Emergency Motion for Temporary
2

Case 8:20-cv-01028-PX Document 90 Filed 05/27/20 Page 3 of 11
Restraining Order [ECF 39], Court’s Exhibit List [ECF 65], Letter correspondence addressing substantive legal issues [ECF 72], and Second Motion for Other Relief to Supplement Record [ECF 78].
Defendant is likely to prevail on the merits of its appeal for four reasons. First, as this Court acknowledged during the Status Conference held on May 20, 2020 and stated in its Memorandum Opinion, the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e, applies to Plaintiffs’ claims, specifically Counts I and III. [ECF 84 at 18]. Thus, the PLRA precludes Plaintiffs’ request for relief pursuant to 42 U.S.C. §1983 because they failed to exhaust administrative remedies. Jones v. Bock, 549 U.S. 199, 211 (2007)(“there is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”).
Second, Plaintiff’s claims pursuant to the Eighth and Fourteenth Amendments have no merit, are not supported by the undisputed evidence, or by the court-appointed jail inspector’s report [ECF 65.] The record is replete with evidence that Defendant has not been deliberately indifferent to risk posed by the COVID-19 pandemic and its potential impact on the inmates (“high risk” or otherwise) at the Prince George’s County Correctional Center and court appointed jail inspector’s report supports that conclusion.
An official “who actually [knows] of a substantial risk to inmate health or safety may be found free from liability if [she] responded reasonably to the risk, even if the harm was not ultimately averted.” Brown v. Harris, 240 F.3d, 383, 389 (4th Cir. 2001), quoting Farmer v, Brennan, 511 U.S. 825, 844 (1994). “[W]hether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable under the Cruel and
3

Case 8:20-cv-01028-PX Document 90 Filed 05/27/20 Page 4 of 11
Unusual Punishments Clause.” Id. Here, Dr. Franco-Paredes found that PGCDOC was in compliance with CDC Guidelines.
[ECF 64, 26:19-24.] Dr. Franco-Paredes acknowledge that “there’s challenges, like social distancing, when even the CDC says things have to be applied according to, you know, each institution…” Id. Dr. Franco-Paredes found that Director McDonough employed different tactics to help promote social distancing in many ways – eliminating inmate work details, locking down the housing units so that only the same ten (10) individuals shared the common area and recreation area during breaks (thus reducing exposure to additional people), asking inmates to sleep in opposite directions in their bunks, and when inmates used phones in the housing unit. [ECF 64, 27:15-19.] Inmates from each housing unit were addressed en masse by correctional officers and nurses who advised about the contagiousness of the virus, symptoms, covering a cough, washing hands, cleaning cells, and social distancing. [ECF 29-3.] Educational posters were erected throughout the jail in multiple languages. [ECF 29-3.] The Director has worked extensively with the state courts, State’s Attorney’s Office and Office of the Public Defender to reduce the jail’s population, from an average daily population of 720 on March 1, 2020 to the current population of 540. [ECF 29-3, 78-5.] The record also reflects that none of the detainees/inmates have been transported from PGCDOC to any area hospital for medical treatment or death attributable to COVID-19. [ECF 29-1.] Of the 18 detainees/inmates diagnosed with COVID-19 and found symptomatic, all were placed in proper isolation units, suffered only minor symptoms and fully recovered. [ECF 29-1.] The last date a symptomatic inmate/detainee tested positive for COVID-19 was April 20, 2020. [ECF 29-1.]
4

Case 8:20-cv-01028-PX Document 90 Filed 05/27/20 Page 5 of 11
The Court’s concern that an outbreak occurred in the jail in April, which was traced to an introduction by a correctional employee, is not reflective of deliberate indifference – the entire country experienced a spike in cases in April. Even plaintiffs’ experts, by affidavit, have said that controlling the spread of COVID-19 in a correctional facility is impossible. [ECF 1, Ex. 30, Meyers Decl. ¶ 30.] Yet, at time of the inspection, Dr. Franco-Paredes did not observe any inmate exhibiting symptoms indicative of COVID-19. [ECF 64, 31:14-18.] 1 That other inmates may have become infected did not result in any harm as, according to Dr. Franco-Paredes, 93% of the inmate population is at low risk of developing complications (COVID-19) due to corona virus infection. [ECF 65.] As noted in the record, the Director, through PGCDOC’s medical contractor, was only recently able to secure additional testing kits. [ECF 88 at 17.] The court pointing to the lack of testing kits in PGCDOC’s inventory fails to recognize that not too long ago, there was a nationwide shortage of testing capabilities.
Further, there is no evidence that a failure to have a specific plan to address a segment of the inmate/detainee population at PGCDOC caused or will cause any unnecessary and wanton infliction of pain on any member of that segment or that the medical treatment provided would be any different with or without a plan. See Estelle v. Gamble, 429 U.S. 97, 104 (1976)(quoting Gregg v. Georgia, 428 U.S. 153, 169-173 (1976)). The record reflects that all inmates/detainees were treated as “high risk” due to the closed, confined space of the facility, inmate/detainee population, the location of the facility, and experience with other highly contagious
1 It is simply implausible that the inmates’ declarations, obtained by assistant public defenders to whom they look to get out of jail, have any credibility at all given Dr. Franco-Paredes’ findings. That a massive outbreak occurred just three weeks prior to his arrival is simply belied by the fact that he did not observe a single inmate exhibiting COVID 19 symptoms.
5

Case 8:20-cv-01028-PX Document 90 Filed 05/27/20 Page 6 of 11
communicable viruses. After consultation with Meskerem Asresahegn, M.D., PGCDOC’s Site Medical Director, Director McDonough decided that “high-risk” inmates/detainees would remain in their current housing units to avoid movement through the jail exposing them to new people and increasing the risk of an infection. [ECF 78-4.] Additionally, if all “high risk” inmates/detainees were housed in the same housing unit and one became symptomatic, there would be an increased risk that all “high risk” inmates/detainees would become symptomatic, which could potential overwhelm medical staff. [ECF 78-4.] Yet, any failure to have a plan specifically for “high risk” inmates/detainees constitutes, at most, mere negligence and fails to meet the high standard of deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 105–06 (1976). As noted, the record reflects that the Director relied on the medical advice of those professionals at her disposal. [ECF 78-4.] Any disagreement with advice provided pursuant to the medical judgment of the Medical Director cannot be imputed to the Director for purposes of the deliberate indifference analysis.
Dr. Franco-Paredes found no problems with the facility’s sanitation efforts or provision of cleaning supplies and hygiene supplies to the inmates. [ECF 65.] There is no indication that the facility will not continue to provide proper sanitation or supplies. Yet, the Court has ordered a detailed report to be submitted addressing these matters.
The sustainability of repeated or periodic widespread testing or targeted, periodic testing is dependent on factors beyond the authority and ability of the Director. [ECF 78-1.] Testing supplies, as elsewhere throughout the country, have been in short supply. [ECF 78-1.] Thus, any shortfall in executing the plan cannot be construed as deliberate indifference when the County’s jail is only one of many in need during this pandemic where many citizens in Prince
6

Case 8:20-cv-01028-PX Document 90 Filed 05/27/20 Page 7 of 11
George’s County and State have suffered the ultimate injury. B. The Director and County Will Suffer Irreparable Injury in the Absence of a Stay and Plaintiffs will not.
Next, a stay is also warranted and appropriate in this instance because the Court’s Order threatens irreparable injury to the Defendant by obstructing Director McDonough’s exercise of her judgment as a correctional administrator in discharging her fundamental duty to ensure the safety and security of PGCDOC.2 The Prince George’s County Code of Ordinances, Sec. 18108(a) provides that “the County is authorized and directed to provide for the board and feeding of prisoners confined in the County jail” and “the administration of the County jail shall be under the direction of the Director of the Department of Corrections appointed by the County Executive and confirmed by the County Council pursuant to Section 322 of the Prince George's County Charter.” “It is ‘difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.’” Woodford v. Ngo, 548 U.S. 81, 94 (2006)(quoting Preiser v. Rodriguez, 411 U.S. 475, 491–492 (1973)). The Defendant has had to expend extensive resources and staff time simply responding to this lawsuit and the Court’s orders. The Court’s Order for TRO and preliminary injunction will require even more time and resources needed to run the institution and implement plans to respond to the ever-evolving nature of this global pandemic. More importantly, the Court’s order dictates to the Director what must be done to
2 See generally Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (recognizing that courts must accord “substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them.”); Lovelace v. Lee, 472 F.3d 174, 199 (4th Cir. 2006) (“courts must accord deference to the officials who run a prison, overseeing and coordinating its many aspects, including security, discipline, and general administration.”).
7

Case 8:20-cv-01028-PX Document 90 Filed 05/27/20 Page 8 of 11
satisfy the Court, rather than to leave that prerogative to the Director, when the evidence on the record simply does not require judicial oversight.
Plaintiffs will not suffer irreparably injury if the matter is stayed. The health and safety policies and procedures implemented by Defendant pursuant to the CDC Guidelines reveal that such policies and procedures are reasonable to protect inmates/detainees at the PGCCC as evidenced by low number of symptomatic, COVID-19 positive inmates/detainees compared to the community of Prince George’s County. No detainee – “high risk” or otherwise – has required hospitalization. Plaintiffs only offer speculation, and no evidence (other than claims of symptoms that, if believed, could be attributed to a number of illnesses) of any inmate/detainee needlessly suffering for lack of a plan. There is no evidence of any inmate/detainee regardless of “high risk” or not being in any immediate threat of harm. On the contrary, the evidence reveals that Director McDonough acted proactively in implementing a pandemic policy modeled after the CDC Guidelines while weighing their impact on the inmates/detainees versus preventing the COVID-19 to spread in the jail. The number of COVID-19 symptomatic inmates, or lack thereof, speaks to the effectiveness of Director McDonough’s policies and procedures in controlling and preventing the spread of COVID-19 in PGCCC. [ECF 29-1.] Thus, any omission of Director McDonough to implement a plan for “high risk” inmates/detainees when no evidence of any member of this segment of the inmate/detainee population suffered any serious injury during the pandemic cannot be found to meet the high standard of a violation of the Eighth or Fourteenth Amendments to the Constitution. More importantly, the Director’s entire response demonstrates that the high-risk population remains unlikely, in the future as well, to suffer from serious risk of harm. In this regard, it should be noted that any inmate who incurs serious
8

Case 8:20-cv-01028-PX Document 90 Filed 05/27/20 Page 9 of 11
COVID-19 disease, high-risk or otherwise, will receive hospitalization paid for by the County, thus providing inmates the same medical resources they would have if not incarcerated.
C. Plaintiffs fail to properly plead a Monell claim against the County. It is well-established that “an official capacity claim against a government employee is, in effect, a claim against the governmental unit.” Lowery v. Prince George's County, 960 F. Supp. 952, 953 (D.Md. 1997). To state a claim under § 1983, Plaintiffs must allege: "(1) a deprivation of a constitutional right or some right secured by the laws of the United States, and (2) that the deprivation was caused by a state actor." West v. Atkins, 487 U.S. 42, 48 (1988). A municipality may not be held liable under § 1983 unless a municipal policy or custom caused the plaintiffs' injury. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694, (1978). The policy or custom requirement of Monell applies to § 1983 claims for declaratory or injunctive relief no less than claims for damages. Los Angeles Cty. v. Humphries, 562 U.S. 29, 31 (2010). A district court may not award prospective relief against a municipality unless the requirements of Monell are satisfied. Id. Thus, plaintiffs must establish that they are likely to satisfy the requirements of Monell to obtain a preliminary injunction against a municipality. Id. Here, Plaintiffs’ §1983 claim asserted against Mary Lou McDonough in her official capacity as Director of PGCDOC is a claim against the County. In Plaintiffs’ Emergency Motion for Temporary Restraining Order and Preliminary Injunction, Plaintiffs claimed that Director McDonough failed to adopt measures to prevent the spread of COVID-19 and ignored the guidance from the CDC. [ECF 3-1, p. 4.] The record clearly does not support Plaintiffs’ assertions. The record reflects that Director McDonough prepared and implemented a pandemic
9

Case 8:20-cv-01028-PX Document 90 Filed 05/27/20 Page 10 of 11
policy modeled after the CDC Guidelines dated March 23, 2020. [ECF 29-5.] Along those lines, Dr. Franco-Paredes found that Defendant’s policy was in compliance with the CDC Guidelines. [ECF 65.] The policy’s effectiveness is evidence by the low number of COVID-19 inmates/detainees, reduced inmate/detainee population, no transports to area hospitals, and no deaths, which contradicts the claims in the Plaintiffs’ motion and affidavits. [ECF 29-1.]
More importantly, the record is devoid of any evidence that the lack of a policy caused any harm to any inmate/detainee. The record shows that Defendant did have a policy and practice of identifying “high risk” inmates through its Chronic Care Clinic, which monitors and treats inmates/detainees medical conditions. [ECF 29-1.] The County’s reliance on its Chronic Care Clinic as a reasonable means of identifying those inmates that may meet the definition of “high risk” as defined by the CDC, but may fail to capture all “high risk” inmates, does not rise to the level of conduct indicative of deliberate indifference. The Court must appreciate and take into consideration that knowledge of COVID-19 changes sometimes daily, weekly, or monthly. The constitutional standard for a violation of the Eighth and the Fourteenth Amendments is not best practices, but reasonable practices. Based on all of the policies and safeguards employed by the Defendant, those incarcerated at PGDOC are safer than those in the community.
IV. CONCLUSION Based on all of the above, Defendant Mary Lou McDonough respectfully requests that
this Honorable Court granted Defendant’s Motion to Stay pending the appeal of this matter.
10

Case 8:20-cv-01028-PX Document 90 Filed 05/27/20 Page 11 of 11

V. CERTIFICATE OF CONFFERRAL The parties conferred by electronic mail on May 27, 2020 and Plaintiffs oppose this
motion. VI. EMERGENCY CERTIFICATION
After reviewing the facts and researching applicable legal principles, we certify that this motion in fact presents a true emergency (as opposed to a matter that may need only expedited treatment) and requires an immediate ruling because the Court would not be able to provide meaningful relief to a critical, non-routine issue after the expiration of seven days.

Respectfully submitted,
RHONDA L. WEAVER COUNTY ATTORNEY
ANDREW J. MURRAY DEPUTY COUNTY ATTORNEY

Filed: 05/27/20

____________________________________ Shelley L. Johnson, Esquire (ID# 15853) Ann E. Koshy, Esquire (ID# 19333) Associate County Attorneys PRINCE GEORGE’S COUNTY OFFICE OF LAW 1301 McCormick Drive, Suite 4100 Largo, Maryland 20774 (301) 952-5225 voice (301) 952–3071 facsimile Counsel for Defendant
11

Case 8:20-cv-01028-PX Document 90-1 Filed 05/27/20 Page 1 of 115



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Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-3nt*9S0E-A2LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 1Paogf e201 of 20
Affidavit of Mary Lou McDonough
My name is Mary Lou McDonough. I am over 18 years of age and am competent to testify. The following statements are made based upon my personal knowledge and my knowledge as Director of the Prince George’s County, Maryland Department of Corrections (DOC).
I am the Director of the Prince George’s County Department of Corrections. I have held this position since June 4, 2008. Prior to becoming Director of the County’s Department of Corrections, I held the position of the Deputy Director, Bureau of Administration at the Prince George’s County Department of Corrections for three years. Prior to working at the Department of Corrections, I served as Deputy Director for the Prince George’s County Department of Housing and Community Development (DHCD). Totally, I spent 25 years working in subsidized and public housing; particularly with the elderly and Section 8 Rental Assistance recipients. My education and training consist of a Bachelor of Science, with Majors in Sociology and Political Science from the University of Maryland, College Park, Maryland and a Master of Public Policy from the School of Public Policy at the University of Maryland, College Park, with a concentration in Public Finance. I have had extensive training in Corrections Administration through many classes, trainings and workshops sponsored by Correctional Professional organizations including the American Correctional Association (ACA), the National Institute of Corrections (NIC), the American Jail Association (AJA) and the Maryland Correctional Administrators Association (MCAA). I participate in the Correctional Chiefs Committee of the Metropolitan Washington Council of Government (MWCOG). I have served as Chair and Vice Chair of this Committee.
1

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-3nt*9S0E-A2LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 2Paogf e202 of 20
Under normal circumstances, and prior to the onset of COVID 19, the County’s Correctional Center contagious disease policy was in place and is attached to this Affidavit as affidavit exhibit number 1. The policy has been constantly updated this year to reflect the COVID-19 pandemic and health experts’ recommendations.
I first became aware of the possible spread of a Coronavirus to the United States in December 2019 and in January 2020 by watching, listening and reading reports in the press and on-line. Knowing that a spread of any contagious disease in a Correctional Center could be dangerous to both inmates and staff, I immediately began preparations to assist in our readiness for potential introduction, spread and mitigation of COVID-19 in the County’s Correctional Facility. As a result, I took the following actions:
On February 6, 2020, the medical staff began a new and additional screening process for all committed persons upon their arrival in Upper Marlboro Processing, which included the completion of a check list asking about possible “flu-like” symptoms and checking the temperatures. The questions included asking about recent travel outside of the Country. A Copy of the check list used is included Dr. Asresahegn Declaration. Information about this new process was brought to the attention of the Office of the County Executive during my monthly briefing of Deputy Chief Administrative Officer for Public Safety (DCAO) Mark Magaw.
At our regular February 2020 Monthly Medical Advisory Committee (MAC) meeting with our Medical Administrator and Physician and Chiefs of DOC Divisions, additional planning steps were taken to include reviewing, revising and updating our Infectious Control Policy. At that time our current infectious disease policy had more to do with contamination from blood and body fluids than it did with airborne illnesses, like COVID-19. The policy was reviewed and changed to add more specifics in dealing with an airborne disease and has been continuously
2

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-3nt*9S0E-A2LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 3Paogf e203 of 20
changed regarding social distancing and crowd size and other recommendation by the Health Department, the US Centers for Disease Control and Prevention (CDC) and the County Office Emergency Management (OEM). Also, flu vaccine was only offered and available to staff in October -December, but, since we wanted to be able to better distinguish flu from the coronavirus, flu vaccine was offered free to staff in February and March. Health compromised inmates were already receiving flu vaccine in our Medical Unit. Since COVID-19 testing was not available in February and early March in the US, being able to rule out flu could possibly be a help in diagnosis of COVID-19 cases. I also asked that our Airborne Infection Isolation Rooms (AIIR) rooms be tested to make sure the negative pressure system was working in them. I also asked Maintenance to finish any outstanding repairs, plumbing, electrical, etc. that may have been needed in the Medical Unit. I asked about the cleaning that was being done by an outside Contractor in the Medical unit and was it enough and being performed properly. I was assured by our Medical Contractor that they were satisfied with cleaning protocol. I confirmed that Physicals were being performed on time on all new inmates, within 14 days of arrival. The Medical Administrator spoke highly of the Officers who were assigned to Sick Call and to the Medical Unit and asked if Management could try to use the same Officers in Medical as much as possible on the regular Officers days off. Management agreed to do that as much as possible depending on schedules and leave usage.
On March 3, 2020, I sent a memo to DOC Staff advising them of preliminary actions being taken at the jail and reminding them to wash their hands regularly and often. We also posted a Health Department flyer through the correctional facility describing how to best avoid infectious disease by hand washing often, hand washing etiquette, coughing into the crook of
3

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-3nt*9S0E-A2LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 4Paogf e204 of 20
your elbow and using tissues, which are then disposed of for any sneezes. We also reminded staff to stay home if they felt sick and inmates to report and symptoms to staff.
During early March, I attended many meetings, 3/3/20, Meeting with Prince George’s County Full Cabinet, led by Chief Administrative Officer Major Riddick, 3/4/20, Meeting with County Executive Angela Alsobrooks, Health Officer Dr. Ernest Carter and Heads of agencies that could be strongly affected by the virus, i.e., Public Safety, Housing, Health and Public Works, 3/5/20 participated in a community roundtable held by Congressman Steny H. Hoyer (D-5th MD) and Congressman Anthony Brown (D-4th MD) representatives for Prince George’s County and 3/9/20 Met with Corrections Physician, Medical Director, Chief of Nursing and Corizon Corporate Officials to discuss plans and operations moving forward.,
On March 12, 2020, I stopped our normal group Roll calls, usually held during the 15minute period prior to an 8-hour Shift start. Post assignments and information is now shared individually with Officers by Command staff and through electronic measures.
During this same time period, early March 2020, increased sanitation efforts began on all Shifts; particularly in common areas. Sanitation in the facility is normally done by inmate work crews supervised by Correctional Officers. These efforts are supplemented by a Contractional Cleaning Company in the Medical Unit and in staff offices. We provided additional disinfectant cleaners and wipes and paper towels to all inmates and staff. Copies of inventories, orders, and invoices for additional cleaning supplies are attached. These additional supplies of disinfectant wipes and diluted bleach and paper towels were made available in Housing Units for Officers and inmates for use on surfaces and equipment, including telephones, doors, door handles and knobs, electronic equipment, tables, seating areas and all other frequently touched surfaces. On March 18, 2020, additional personal bars of soap were provided to detainees at arrival in
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Processing for their individual use. Soap was and is distributed FREE OF CHARGE to all detainees in accordance with the later published recommendation of the Centers for Disease Control (CDC) which states that Correctional Agencies stock “liquid soap when possible, if bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing”. Our agency finds that “bar” soap is more convenient for detainees to use because it is readily available, can be easily kept with a detainee and does not create the environmental waste and potential for abuse as contraband that liquid soap containers (pumps) may contribute. On April 9, 2020, Officers were reminded to distribute soap freely within the Housing Units to anyone needing or requesting it, and Zone Commanders were instructed to continually monitor and ensure that there were bars of soap available in the Housing Units for consistent distribution.
We have chosen not to use alcohol-based hand sanitizer within proximity of detainees because of the potential for abuse. We have previously had inmates abuse alcohol-based hand sanitizer by drinking it for the alcohol content, which previously caused the admittance of two inmates to the hospital, one who remained in the ICU in critical condition and resulted in the possibility of permanent organ damage. This option is in accordance with CDC guidance which recommends the use of alcohol-based hand sanitizer if soap and water are not available, (emphasis added).
Our Housing units are not dormitory style, which may require up to 12 individuals to share bathrooms and sinks as may be seen in other jurisdictions. In our facility, detainees are housed in cells, which are situated around a common day room area. Each cell has its own toilet and sink and holds no more than two occupants, many detainees are single celled and have a private sink and toilet. The common area also contains a Kitchenette area with a sink and running water.
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In early March, we met with our food and medical contractors to make sure that their inventories of food and medical supplies were enough for a longer than usual time period in case there were future delays in deliveries.
In mid-March, I met with our Administrative Judges from both Circuit Court and District Court to review both their and our Continuity of Operations Plans (COOP) and test our capacity to hold hearings remotely. We also set up and reviewed existing procedures to provide remote access to detainees by Attorneys, particularly Public Defenders. The Office of Public Defender (ODP) was involved in the development of these procedures. At this time our Average Daily Population (ADP) was over 700 so we began additional daily reviews of our current detainees to explore the possible release to Home Detention or on pre-trial release of additional individuals. We have worked closely with both the OPD and the States Attorney’s Office (SAO) to reduce our ADP. During this time period, I had often and regular telephone conversations with Keith Lotridge, Public Defender for Prince George’s County, about the possibility of getting inmates released from jail. I asked him about any inmates that he may know of that had serious health issues and asked them to please work on getting these released. I brought to his attention Inmate Chun Oh, who is a 74-year-old female, who I was concerned about. I knew that although she is charged with Murder, I didn’t believe her to be a danger to herself or others nor a flight risk. He replied that he didn’t believe that she had anywhere else to go. She is still in our custody. Our ADP was routinely in the high 1400’s or over in 2008, when I became Director and instituted many programs and processes to release pre-trial individuals. I am a strong believer in criminal justice reform in Maryland and have worked on it with the Governor’s Office and the State legislature. Since early March 2020, these efforts have lowered our ADP by more than 20%. Our population on March 1, 2020 was 706 and our population on April 24, 2020 was 560. On
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many days in the past two months, our number of releases is substantially more than our intakes. (ADP Reports for March and April 2020)
During the rest of March, these additional steps were taken to prepare for the potential/possible introduction of COVID-19 in the correctional facility.
x I held a Town Hall style meeting for staff with our Physician to discuss COVID-19 preparation and policies and to respond to questions. Session was videotaped and shared with all staff to include staff on all three Shifts. 3/12/20
x Reviewed minimum staffing needs in all Divisions; including Security 3/13/20 x Remind Security Staff temporarily assigned outside of Security that they may be needed
to work Security Post and to be prepared to have their Post changed 3/13/20 x Ready Cots and Linens for Staff sleep-overs if necessary 3/13/20 x Push Office of Central Services (OCS) to open all closed cells in Housing Units
identified as Consolidation Units - to stay open in case of outbreak, particularly HU 14, 15, 16 & 17, throughout February & March, continuing into April
x Identified Units as “infirmary Units” if sick population is too large to be contained in Medical Unit (HU 6 Males & HU 2 Females)
x Make sure all 12 Airborne Infection Isolation Room (AIIR), or negative pressure cells, are working and ready. 1 remains out of service because of major plumbing issue and back-ordered parts.
x Identify Civilian Staff who may be able to work from Home – week of March 16th
x Ensure Staff who may work from home have access to County network from their homes via County laptops Week of March 16th
x Identify minimum Sworn Staff needed to run the Jail – Week of March 16th
x Identify Civilian Staff who could be excused from Work., Administrative Leave – 3/20/20
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x All civilian staff eligible for Teleworking were assigned to Telework- 3/25
x Talk to Office of the Sheriff and the Prince George’s Police Department (PGPD) about possible need for staffing following posts, in the case that a high percentage of our Security Staff are ill or quarantined at home – Gate, Reception, Transportation and Perimeter Done Mid-March o Met with Sheriff Deputy to walk through action Post Duties of Perimeter (K-9) and Gate – April 7
x Talk to Prince George’s Fire/EMT about inmate transport requirements for staff (follow along if arrestee/inmate is restrained) Policy in place for COVID-19 patients - Done MidMarch
x Command staff, along with Medical Staff visited every Housing Unit to inform inmates on COVID-19 preparedness and to explain to inmates how to social distance and the importance of cleaning area and washing hands 3/06/20
x Additional Soap was purchased, stocked and distributed as needed (4,500 bars) for inmate use, so that inmates may have enough soap to use for showering and washing hands. 3/18/20
On March 23, 2020, the CDC finally issued its Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities. Keep in mind that all the above had already been done in the Prince George’s County DOC. I reviewed the Guidance to see what, if anything I/we, could be doing to prevent and prepare for the potential introduction of COVID-19 in the facility.
Under the topic of Communication and Coordination, the guidance recommends identifying points of contact with our public health department. Beginning Monday, March 16 and almost every day since, I have personally been in contact with Dr. Ernest Carter, Health Officer for Prince George’s County and/or Angela Crankfield-Edmond, Chief, Infectious Diseases at the County Health Department for advice and recommendations on COVID-19 and its affect on the
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Jail, our inmates and our staff as well as the County community at-large. Together, our Health Provider our Public Information Officer and I created and tested our plan to disseminate critical information to detained/incarcerated persons, staff, contractors, vendors and visitors as the pandemic has progressed. Through my participation in the Maryland Correctional Administrator Association (MCAA) (I am a Former President, Vice-President and current Executive Board Member.) I have communicated regularly with other Maryland local Correctional facilities to share information, including disease surveillance and staff absenteeism patterns. With the Assistance of Judge Barbera, Chief Judge on the Maryland Court of Appeals and Judge Morrissey, Chief Judge District Court of Maryland, the local jails in the State of Maryland working with the State prison system have put a plan in place to prevent inmates from being transferred between facilities in Maryland during the COVID-19 outbreak by allowing local judges to hold hearings on cases outside of their normal geographic locations.
We had already reviewed our existing infectious disease policy, all hazard and disaster plans and have been continuously revising them for COVID-19. Because we are fortunate enough to have a full medical unit within our facility; including 12 Airborne Infection Isolation Rooms (AIIR), a Female ward (6 bed) and a Male Ward (10 bed), plus examination space, a dental room, a pharmacy and full time 24/7 staffing by medical professionals we were able to plan for how suspected and COVID-19 cases are isolated, evaluated and tested and provided all necessary medical care. Our Medical Director and Physician are providing information on the care and treatment of inmates under separate affidavits.
We are one of only three local jails in the state with a full Medical Unit of this size and capacity. We have the equivalency of forty full time positions staffing our Medical Unit, including a full time Physician, a full time Psychologist, 4 Licensed Clinical Social Workers
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(LCSW), a 30 hour per week Psychiatrist and a part time Mental Health practitioner and over 20 full time nurses.
As previously stated, we had already coordinated with local law enforcement and Court Officials and are using alternatives to in-court appearances and have worked with the SAO and OPD to reduce our inmate population. Our rated capacity is 1524, but we have two full housing units (96 cells, 48 in each HU) and two half units (48 cells, 24 in each HU) off-line for renovation, reducing our capacity by almost 300 occupants. Our inmate population as of April 23 was 570.
We posted Health Department signage concerning COVID-19 symptoms and hand hygiene throughout the facility, including areas frequented by inmates in English, Spanish and pictograms (for the illiterate). We have updated the signage continuously as new information about the virus has emerged, always using CDC or Health Department signage in English, Spanish and pictograms. (Copies attached)
We reviewed our sick leave policies and worked with the County’s Office of Human Resources (OHR) on Sick, Health and Safety Leave, a new type of leave developed for COVID19 related absences. We have encouraged and commanded sick employees to stay at home. We have planned for staff absences and allowed many more staff to telework. Snce we wer able to return many sworn staff members to Security positions from temporarility closed programs, we have maintained the staff necessary to staff the jail, even with staff absences.
We have ensured stock of hygiene supplies, cleaning supplies, PPE and medical supplies are available and restocked as necessary. (Invoices attached.) We exceeded the CDC recommendations by issuing N-95 masks to all staff starting on March 30, 2020. We replace the
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masks as needed and will have replaced all of them at least two additional times as of April 27, 2020, We also distributed a video and written instructions on how to use the masks and how to care for them, going as far as giving every staff member a paper bag to store their masks in when not in use. We mandated the use of masks in the facility on April 7, 2020. We issued surgical masks to all inmates on April 5th & 6th, 2020 and require them to wear them when outside of their cells. We also issued paper bags to inmates to store their masks while in their cells and explained how to don and doff the masks safely.
We are performing all prevention practices as outlined in the CDC Guidance; including performing pre-intake screening and temperature checks, which began on January 29, 2020. In early April 2020, we began masking ALL arrestees upon arrival to the facility, if they were not masked by Law Enforcement already. We began taking temperatures and asking about other symptoms on March 17th of all individuals, including arrestees, detainees, staff, police officers, attorneys and arrestees entering the facility.
We have implemented social distancing strategies to increase the physical space between inmates in a variety of ways and changed them to reflect the changes in guidance from the CDC and the Governor and the County Executive. We have also limited group sizes, starting with no larger than 50, then 30 and finally to groups of no more than 10. This has not been easy within the confines of our facility.
We stopped all visiting, except for legal visits, and stopped volunteers from entering the building on March 13, 2020. Detainees were informed that because we were stopping visiting for their protection and for the protection of our staff and that we made arrangements with our inmate phone provider to allow each inmate to make three free 10-minute phone calls to their family and friends each day. This is more free calls than any other jail or prison in Maryland,
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where two free calls per week is the average being offered. Inmate calls to Attorneys were free prior to the COVID-19 crisis and remain free today. Since the “normal” phone numbers of many law firms are not currently not being answered because the Attorneys are working from home, we have made special arrangements to enable free calls to alternate numbers provided by Attorneys. This is especially true of the Office of Public Defender (OPD), who represents most of our inmates. The OPD has provided us with a complete listing of additional phone numbers to add to the free Attorney call listings. Attorneys may still visit their clients, but for the protection of our inmates we ask them to use a non-contact visiting booth. If the Attorney needs to pass paper to the client or collect signatures from their client, they may give the paperwork to a Correctional Officer who will take the paperwork to the inmate and allow them to read it or sign it in front of the Attorney and return it to the Attorney as needed. We are still providing notary services to our inmates.
On April 6, 2020, after consultation with Dr. Ernest Carter, Prince George’s County Health Officer, and Angela Crankfield-Edmond, Prince George’s County Chief, Infectious Diseases, Dr. Meskerem, Physician at the Correctional Center and my Command Staff, I decided to change the number of inmates allowed out of their cells at one time to ensure social distancing. We are a Direct Supervision Facility. Direct Supervision combines two key elements— the physical design of a jail and an inmate management strategy—to significantly reduce the problem inmate behavior commonly seen in jails. Direct Supervision jails focus on actively managing inmate behavior to produce a jail that is safe
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and secure for inmates, staff, and visitors. Correctional Officers and Civilian staff interact and communicate continuously with inmates in housing units, actively supervising them to identify problems in their early stages. They use basic management techniques to prevent negative behavior and encourage positive behavior. Staff assume control of the jail and establish a professional supervisory relationship with inmates. There are no physical barriers separating staff and inmates in the housing units.The design of the jail supports the management of inmate behavior by reducing physical barriers that impede staff/inmate interaction, by insuring there are clear sight lines into all areas of the housing units, and by incorporating design elements, fixtures, and furnishings that promote positive inmate behavior.
All services, including medicine, meals, spiritual and educational services, library etc. are normally brought to the inmate in their housing unit. All but our smallest housing units have their own recreation yards available only to the inmates in that housing unit. Our two open smaller size units share a recreation yard with another small size unit. These units take turns using the recreation yard..
Usually, Pre-COVID-19, inmates spent most of their day not locked down. They were only locked down during Shift Change which happens 3 times every 24 hours, and Count, which takes place immediately after Shift Change and overnight, starting at 2200 hours through 700 hours and half the unit, either upstairs or downstairs were locked in while the other half ate and cleaned up following their meals. They also spent many hours going to Court, participating in Programs and Groups and working throughout the facility. All of these activities are now stopped.
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Since the common room is not big enough for all the inmates to share the space and remain 6 feet apart from others, we have changed our practice to ensure proper social distancing to only allowing 10 inmates out of their cells at a time. This means that 140 inmates throughout the 14 currently occupied housing units are out of their cells most hours of the day, in groups of 10. Currently Housing Unit 1, which is our Female Unit has 18 occupants. These inmates are out their cells every other hour of the day. In more crowded Units, like HU 17, which had 69 inmates on April 24th; inmates may be only out of their cells for approximately 3 hours per day. When inmates are out of their cells, they are sharing the common space with the same 10 inmates as much as possible. They can shower, make phone calls, watch television, read the newspaper or go outside in the unit’s recreation yard. Televisions can be tuned to any station that is provided, including news stations and copies of The Washington Post newspaper is provided to every Housing Unit every day for inmate use. Extra reading materials and work packets were added to the units for use since so many other activities are not taking place.
We encourage inmates to maintain spacing of at least 6 feet apart and are only allowing usage to every other telephone to help ensure this spacing. There are 10 to 12 inmate phones in every large housing unit, but they are fastened to the walls 2 – 2 ½ feet apart. Housing Units 11 A and 11B which are half the size of the other Units have 8 phones and much smaller populations. 11A is our Juvenile Unit and has only 9 occupants as of April 24, 2020 and HU11B which is our Special Needs Unit had 18 occupants on April 24, 2020.
By only allowing usage of every other phone, we have done our best to keep the callers 6 feet away from the next caller and because only 10 inmates are out at a time do a variety of things, social distancing is maintained as much as physically possible. Initially, we tried taping
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off every other phone, but found that the inmates would tear the tape away and use the phone anyway.
Meals are served to the inmates in their cells. Units with smaller populations have more space to single cell inmates. A cell that is single celled means that only one occupant is assigned to a cell that can be used for two occupants, using bunk beds. In cells with two occupants, we encourage inmates to sleep on their bunk beds head to foot to assist with the 6-foot distancing.
We have provided up-to-date information on COVID-19 to inmates in both written, see flyers and oral form. Inmates also have access to daily newspapers and television news. They have been encouraged to report COVID-19 symptoms to staff as the first sign of illness. As recommended by our Health Department, Nurses visit all inmates and staff in housing units who may have shared space with a positive COVID-19 patient twice every day and talk about possible symptoms and check temperatures.
To promote family unification and mental health, when we discontinued family and friend visitation in the facility, we negotiated with our inmate phone provider to allow every inmate to make three “free” 10-minute phone calls per day. Additional phone calls may also be made at regular cost.
On March 30, 2020 at approximately 1500 hours inmate work details outside of Housing Units were suspended. Staff immediately began performing all work normally done by inmates. This includes meal preparation, distribution and clean-up, sanitation in all common areas trash collection, laundry collections, washing and drying and folding all inmate clothes and linens, distribution of clean laundry, commissary receiving and delivery, landscaping maintenance including outside trash removal and general grounds sanitation duties.
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On April 1, 2020, all inmate movement outside of their Housing Units, except for medical purposes, was stopped from within the facility. This has helped with contact tracing and preventing inmate exposure to additional asymptomatic individuals. Inmates are only allowed to move from their assigned housing unit for medical purposes. If an inmate is escorted to the Medical Unit they are masked and kept 6-feet away from staff and other inmates. Unlike in many penal facilities in the Country, in Prince George’s County, inmates are never allowed to travel anywhere in the facility outside of their housing unit unless they are escorted by staff.
Unfortunately, we do not have the means to do electronic visiting as of now. It is cost prohibitive, unless the inmate’s family pay the fees associated with it and that is a burden we have not wanted to place on families.
We have implemented alternative work arrangements, usually tele-working from home, for all non-essential employees.
We have suspended transfers of inmates to and from other jurisdictions as much as possible. If the transfer is absolutely required, we have a transfer alert package that is sent from our Medical Services to the Medical Services of the receiving agency prior to the transfer to allow the receiving agency to prepare for any possible medical conditions that the detained person may have. We also ask for a transfer Alert including all medical information from any agency transporting inmates to the County.
On March 19, 2020 we set up new procedures for our Initial Housing Units for new intakes. These include keeping inmates in Initial Housing for a minimum of 14 days. A full Physical is completed on every inmate within the first 14 days of their incarceration as required by Maryland Correctional Standards Commission. This physical must be completed prior to any
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inmates leaving initial housing. While in the Initial Housing Units the Medical staff monitors the inmate’s health twice daily for COVID-19 symptoms and by taking temperatures. Inmates are fed within their cells. Inmate Sanitation Crew cleans and disinfects all hard surfaces twice daily. Inmates are provided with cleaning supplies and encouraged to clean their cells. (See Housekeeping Policy) Inmates are encouraged to sleep head to foot on the bunkbeds in the cells. If standing in line for medication, health monitoring and feeding they must stand at least 6 feet apart. If a detainee complains of symptoms or seems sick to the Officer, Medical is contacted immediately. When out of their cells, inmates must wear their masks. Inmates are encouraged to change their clothes and shower regularly. Inmates are encouraged to send their dirty clothes to the laundry and exchanged for clean clothes on a regular basis.
Twice in April 2020, an outside cleaning company has been brought into the jail to deep clean the common areas in all housing units, the medical unit, lobby areas and Officers Dining Room. This process will continue throughout the pandemic and is being done to supplement the regular housekeeping activities and increased cleaning that is encouraged and being done by staff in the kitchen and offices. Diluted bleach spray, Spray 9 and paper towels, as well as the normal mops, and brooms are provided in the housing units for use by inmates and staff. Inmates are provided with cleaning supplies and strongly encouraged to clean their cells daily if not more often. Disinfecting wipes and or diluted bleach in a spray bottle and paper towels are available for inmates to use to clean the telephones between usage. The Medical Unit always uses an outside cleaning company to clean and disinfect the AIIR rooms between usage and provides inmates with cleaning supplies to augment the professional services.
Each inmate receives a medical screening examination, which includes blood pressure, temperature and tuberculosis test upon initial entry to the facility. Within fourteen days they
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receive a full physical with either a Physician or a Physician’s Assistant. If inmates are diagnosed with a chronic disease, like hypertension, diabetes or heart disease, they are enrolled in a chronic care clinic in which they will see medical professions regularly during their stay in the jail.
Normally, pre-COVID-19, if an inmate was feeling unwell, they may request to see a medical professional by completing a sick call request slip. It is our normal process to charge four dollars for a sick call visit for the initial visit. If the inmate needs to see a doctor for a follow-up visit for the same issue, or if the doctor requests to see the inmate there is no charge for the visit. Indigent inmates are always treated without charge. Part of the reason that there is a charge to the inmate is to attempt to eliminate unnecessary visits that strain the system and could possibly allow contact with other inmates that the Court has ordered to keep separate. Unfortunately, some inmates try to “work the system” in this way.
We have not charged inmates for visits relating to COVID-19. This information may not have been shared with our entire inmate population but will be shared with them on April 27, 2020. Inmates are never charged when a medical professional or staff member make the referral, for example after a fight, accident, emergency or when a staff member thinks that the inmate may be unwell because of actions or symptoms. The inmate handbook clearly states that there is no fee for emergency medical services, and my interpretation of that includes all COVID-19 related visits and care.
As of April 24, 2020, we have had 18 inmates who have tested positive for COVID-19 since the first case on March 30, 2020. Currently no test results are pending. All 18 have relatively minor cases of the virus. Nine of them have completely recovered and have returned to their Housing Units after spending at least 14 days without symptoms in medical isolation. No
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cases have been acute or required hospitalization. We have not seen a surge in cases or an exponential increase in numbers. I believe that this is true partly because of the care and attention we have given to preparation and mitigation of the virus.
Twenty-eight (28) staff members have tested positive for COVID-19, 25 Officers and 3 Civilians. Nine of the staff members have fully recovered and returned to work. Several more staff are expected to be cleared by their doctors to return to work in the next week. In consultation with the Health Department we have asked staff to be symptom free for a minimum of fourteen days, prior to returning to work. The CDC guideline recommends symptom free for seven days. No one has been acutely ill. After the first case of COVID-19 was identified in the Jail on March 30, 2020, I sent a memo to all staff explaining what had happened and how our actions would now turn from preparation to mitigation. I also videotaped a message to staff on the same topic, urging them to take additional precautions. Communications staff in the Office of the County Executive issued a press release when the first case was diagnosed and has been completely transparent with the press about the virus and the jail.
I believe that under my leadership the Prince George’s County Department of Corrections prepared for the potential introduction, spread and mitigation of COVID-19 in our facility to the best of its ability. The health and safety of the inmates under my custody and the staff under my responsibility is of great importance to me. I believe that we have done everything that we were capable of to prepare and respond to this unprecedented health event.
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I SOLEMNLY SWEAR AND AFFIRM UNDER THE PENALTIES OF PERJURY THAT THE FOREGOING STATEMENTS ARE TRUE AND BASED UPON MY PERSONAL KNOWLEDGE AND THE KNOWLEDGE OF THE COUNTY CORRECTIONAL FACILITY.

Mary Lou McDonough

April 25, 2020 Date

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PRINCE GEORGE’S COUNTY DEPARTMENT OF CORRECTIONS
BUREAU OF OPERATIONS POPULATION MANAGEMENT DIVISION
May 18, 2020
AFFIDAVIT BY JEFF LOGAN, CHIEF OF POPULATION MANAGEMENT
Referencing Civil Action No. 8:20-cv-01028-PHX
As the Division Chief of the Population Management Division for the Prince George’s County Department of Corrections (PGCDOC) and having functioned in that capacity and position for over 10 years, I am responding with and from an abundance of knowledge regarding how the PGCDOC’s Pretrial Release program intricately works.
Plaintiffs make several allegations and assumptions in their “Motion to Supplement the Record” and accompanying affidavit by Assistant Public Defender Claire Glenn. Subsequent to that filing, Plaintiffs provided a “List of Detainees Approved or Ordered Released” dated May 13, 2020 (“May 13th List”) which my division has reviewed and researched. I will respond to how the Population Management Division researched and compiled responses to the May 13th List, which is attached herein as Attachment A.
How Respondent Compiled its Responses to Plaintiffs’ May 13th List:
1. All criminal defendants listed by the Plaintiff (“Listed Defendants”) were identified utilizing the PGCDOC’s computer database known as the Offender Management System (OMS). Each defendant’s name was checked to determine the following:
a) Name b) Case Number(s) c) Charge(s) d) Bond Amount(s), if any e) Warrant(s)-open, pending, and or served f) “Comments” Field for status updates to include judge’s comments, bond hearing
or other court docket entries input by PGCDOC Records Paralegals, and Population Management supervisors’ coded comments g) Mental Health and/or Medical Health information h) Pretrial release status (for all Prince George’s County cases for which the defendant is currently committed to PGCDOC) i) Whether pretrial release was ordered or authorized by the presiding judge.
2. PGCDOC requires specific information that must be collected in a prescreening interview with a defendant and verified prior to any defendant’s release on Pretrial Release Level IV: a. Non-violent offense (unless otherwise ordered or approved by PGCDOC)
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b. Inmate’s identity, address and telephone number; c. Full criminal history check to ensure no open warrants, detainers or pending
charges (other than the intake case, and that all pending cases allow pretrial release); d. Residence in Prince George’s County, MD; e. Employment/school address and schedule; f. Have and maintain an operable telephone; g. Ability to reside with a cooperative family member willing to accept program rules; h. Be employed or willing to participate in full-time employment, education and/or training; i. References to establish community ties; j. Employment history; k. Past and present substance usage and abuse; l. Medical information (for any medication compliance requirements); m. Any other conditions ordered by the court, such as victim contacts, social media information, internet access, .etc.)
This process is outlined in PGCDOC Policy and Procedure 20.3 Pre-Trial Investigation Services. See Attachment B. Once PGCDOC determines that a defendant who has been ordered to pretrial release cannot satisfy one or more of these criteria, PGCDOC informs the court that issued the order for pretrial release (“the issuing court”) and awaits further instructions. This information is required in order to determine the proper parameters of electronic monitoring for each individual defendant. Without proper home address verification, for example, GPS monitoring of a defendant’s location would be meaningless, especially if there are stay-away orders or restrictions on activity. The time it takes to obtain this information can vary for each defendant, as it is based on the amount of time responses are received from external sources and involved individuals, such as employers and alleged victims.
3. All Listed Defendants were checked for all possible issues that needed to be investigated, mitigated, or reviewed prior to any status being recorded or defendant being released or coded that s/he can’t be released at current time. Some of the issues that may affect a defendant’s release are: a. Contacting the victim(s); b. Verifying an address; c. Verifying a Prince George’s County address of residency. This is important because we have field investigators that check on clients (defendants) released on Level 4 Supervision, either on Electronic Monitoring (”EM”) or Home Detention for County-sentenced defendants (“HD”). A home address is essential for both EM and HD.
The courts have entrusted the PGCDOC ’s alternative to incarceration programs, as far as EM and HD are concerned, to check on these defendants at least three (3) times per week at their respective Prince George’s County residence, school, and/or place of employment.
2

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4. Criminal defense attorneys have often contacted PGCDOC in order to ask about the status of his/her client’s pretrial release. See Attachment C – Typical Email Communication with Defense Attorney. Generally, in cases where there is confusion or disagreement with a defendant’s criminal defense attorney about a defendant’s pretrial release conditions, the attorney would contact the court for clarification or intervention.
5. As of the date of this Affidavit, PGCDOC has 151 defendants on EM and HD and 120 defendants being monitored on Levels II and III. Currently, the aggregate is 271.
6. All Listed Defendants were also cross-referenced with the population list being maintained in the Monitoring Service Unit which records statuses for defendants being considered for either EM or HD. It is important to note that the court status of any of these defendants can change from day to day or week to week, month-to month. The Unit attempts to verify all information to work towards releasing a defendant, but there are circumstances the Unit cannot control, such as a victim’s reactions to potential release, family members/friends who are hesitant or reluctant to allow a defendant to live with them, stipulations that can’t be successfully implemented or monitored (for instance-“Release Defendant but s/he is to have no contact with anyone in the community under the age of 18” or “no access to any Internet device or the Internet,” etc.). While PGCDOC continuously works to obtain and verify information, screening any defendant for pretrial release can take anywhere from a few days to a few weeks, even with assistance from defense attorneys to find new friends or family to approach or alternate contact information when initial information is not successfully verified.
7. All Listed Defendants who had court statuses that needed updates were crossreferenced with information from OMS, the courts, CAPS (Court Applications Portal), and Maryland Case Search.
8. Only Listed Defendants who had open warrants had their Records Base File reviewed to determine if the warrant is valid, extraditable, and if the jurisdiction wants to have custody of the defendant once s/he finishes all pending Prince George’s County charges.
9. No Listed Defendants were released due to the Plaintiff’s lawsuit or May 13th list. Any defendants that were released or held in custody were effectuated as a part of the PGCDOC’s adherence to court orders, its routine operational policy and procedures governing custody, alternatives to incarceration, and release to either maintain custodial care of all defendants committed to the PCCDOC based on a court officer or other public safety agency, or conversely, a court officer or other public safety agency submitting a “Release” to the PGCDOC, resulting in the PGCDOC relinquishing custody of said defendant.
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Professional Observations about the Plaintiff’s Complaint and May 13th List
The Plaintiffs, by Ms. Claire Glenn’s representations throughout her Affidavit (ECF 611), and the May 13e List, continues to use misleading phrases, such as “…approved for release…”. The PGCDOC receives court status updates on defendants from each court hearing, where the judge has determined: - the defendant will not be granted the “option” (or “authorization”) of pretrial
release; - the defendant is granted the “option” of pretrial release (Supervision Level is
sometimes established by the judge, but otherwise left to the discretion of the PGCDOC); or - the judge has ordered the defendant released on [a pre-determined level of] pretrial supervision.
Even if a defendant is court-ordered for pretrial release, PGCDOC must ensure that its Electronic Monitoring criteria, as well as any additional criteria set by the court, are met prior to release in order to properly effectuate electronic monitoring. Pretrial release is conditional on meeting those criteria. This has been the practice for decades. The Courts are aware of this, as are criminal defense counsel. If defense counsel disagrees with the Unit’s application of release criteria or contests its findings, they will seek court intervention. If an inmate ordered to pre-trial release does not qualify for it, the Court is notified and may then order the release anyway or revisit the inmate’s bond status.
The PGCDOC Community Supervision staff work exhaustively, attempting to find reasonable ways to effectuate releasing defendants, not the opposite.
Countless human-resource allocation has gone into researching each of these defendants on the May 13th List. In most cases, it has impeded our staff’s ability to actually work on cases to facilitate pretrial release (i.e. analysis, review, follow-up with other public safety agencies, defendant’s victim(s), family members, trying to obtain a viable address, working with Mental Health Court and other external psychological services providers attempting to get these defendants critical care and assistance etc.).
Warrants-Warrant Service Etc.
The PGCDOC has not changed its procedures for serving and or servicing of warrants for defendants held in its custodial care. Ms. Glenn states that the PGCDOC’s serving and or servicing of warrants has impeded defendants being released through pretrial services. There are times that open warrants and detainers do hold up a defendant’s release because case managers have to ensure whether the warrant is still valid, and if the public safety agency that filed the warrant is willing to extradite the defendant to their jurisdiction, etc.
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CCaassee 88::2200--ccvv--0011002288--PPXX DDooccuummeenntt 779780--553 FFiilleedd 0055//112997//2200 PPaaggee 55 ooff 66 Conclusion
On its face, as stated in my first and current Affidavits, the Ms. Glenn’s affidavit paints a picture that the PGCDOC is going out of its way not to release defendants, regardless of whether they have been granted the option of pretrial release and/or Home Detention, court-ordered or not. However, I can unequivocally state the PGCDOC’s entire community supervision program is accomplishing the antithesis of what the Plaintiffs are alleging. PGCDOC follows all court orders and instructions in effectuating the pretrial release of inmates.
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Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 1Paogf e191 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 2Paogf e192 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 3Paogf e193 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 4Paogf e194 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 5Paogf e195 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 6Paogf e196 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 7Paogf e197 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 8Paogf e198 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 9Paogf e199 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 1P0agoef 1190 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 1P1agoef 1191 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 1P2agoef 1192 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 1P3agoef 1193 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 1P4agoef 1194 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 1P5agoef 1195 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 1P6agoef 1196 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 1P7agoef 1197 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 1P8agoef 1198 of 19

Case 8C:a2s0e-c8v:-2001-0c2v8-0-P10X28D-PoXcumDeonctu2m9e-1nt*9S0E-A4LEFDile*d 0F5il/e2d7/0240/25P/a2g0e 1P9agoef 1199 of 19

CCaassee88:2:200-c-cvv-0-011002288-P-PXX DDooccuummeennt t9808-5 FFileiledd0055/2/267/2/200 PPaaggee11oof f2211

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH SETH, et al Plaintiffs
v. MARY LOU MCDONOUGH
Defendant

: : : :
: Case No. 8:20-cv-01028-PX
: : : :

DIRECTOR MARY LOU MCDONOUGH’S FIVE DAY RESPONSE TO THE COURT’S MAY 21, 2020 ORDER Defendant Mary Lou McDonough, in her official capacity as Director of the Prince George’s County Department of Corrections (“Director McDonough”), submits this Response to the Court’s May 21, 2020 Order (ECF 85, the “Order”) granting in part and denying in part Plaintiff’s Motion for a Temporary Restraining Order and Preliminary Injunction (ECF 3-1).1 This Response is meant to provide the submission of information required by the Order’s five day deadline.

1 Director McDonough expressly preserves any and all objections to the Court’s Order and Memorandum Opinion (ECF 84, 85), and nothing in this Response shall be construed as an admission by or a waiver of any objection Director McDonough may have to the Order and Memorandum Opinion. Nothing in this Response shall be construed as an admission of any kind by Director McDonough that the provision of medical care or any other condition of confinement relating to detainees at the Jail is unconstitutional or deficient in any way. Furthermore, nothing in this Response shall be construed as an admission of any kind by Director McDonough that the measures, processes, procedures, and/or policies described and/or referenced in this Response reflect the constitutionally minimum standards of care for detainees at the Jail. In fact, the measures, processes, procedures, and/or policies described and/or referenced in this Response far exceed the minimum standards of care and conditions of confinement required by the United States Constitution.
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INTRODUCTION Director McDonough continues to work diligently to combat the spread of the novel Coronavirus Disease 2019 (“COVID-19”) in the Prince George’s County Department of Corrections (“the Jail” or “PGCDOC”). Director McDonough, her correctional officers, and medical services staff, remain committed to the effort to protect the detainees housed at the Jail from COVID-19 and provide appropriate medical care to the detainees, including those detainees at “‘high risk’ for suffering adverse outcomes if infected with COVID-19.”2 (ECF 85 at 1). Director McDonough’s efforts continue to evolve as the United States Centers for Disease Control and Prevention (“CDC”) continues to provide additional information and guidance on prevention and control of the disease. Nevertheless, Director McDonough and the Jail’s medical services contractor, Corizon, LLC (“Corizon”), have invested and will continue to dedicate enormous resources and invest thoughtful analysis in the Jail’s ongoing strategy for protecting detainees at the Jail from the COVID-19 pandemic. Director McDonough worked diligently with her staff and the members of the leadership on the Jail’s medical staff to draft a response to the Court’s directive in the Order for a “plan or protocol” addressing various aspects of the Jail’s efforts to combat the COVID-19 pandemic. This Response reflects Director McDonough’s best effort to understand and respond to the Court’s directive. However, the Order remains ambiguous, confusing, and seemingly inconsistent with current circumstances at the Jail in a variety of respects. For example, and as discussed in more detail below, certain criteria in the Order’s definition of “high risk detainees” remains confusing
2 For the sake of consistency with the Court’s terminology, the term “high risk detainee” in this Response refers to the Order’s definition of this term. (ECF 85 at 1). For the reasons set forth below, the definition of “high risk” set forth in the Order remains ambiguous and confusing for a variety of reasons.
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and ambiguous. As another example, the directive to submit a plan “address[ing] training, education, and supervision of [the Jail’s medical and security staff] on … rendering timely medical care to such detainees … [and] improving Sick Call response time for COVID-19 symptomatic detainees” remains unclear to Director McDonough. Id at 2. Director McDonough responds to the Court’s Order based on her understanding of the Order but reserves the right to revise her response in light of further clarification.
This Response provides a comprehensive picture of the ongoing efforts by the Jail’s medical and security staffs to respond to the COVID-19 pandemic in light of the evolving understanding the disease. As set forth more fully below, the Response outlines the following areas with respect to Director McDonough’s plan for continuing to combat COVID-19 at the Jail:
(1) Director McDonough and her medical services leadership team will continue to ensure the appropriate identification, monitoring, treatment, and housing of “high risk detainees”;
(2) Director McDonough and her medical services leadership team will ensure the continued “training, education, and supervision” related to the identification of detainees with symptoms of COVID-19 and medical care for symptoms of COVID-19; and
(3) Director McDonough, with the assistance of Corizon, will continue testing for COVID-19 and isolating COVID-19 positive detainees and symptomatic detainees as necessary.
As confirmed in this Response, Director McDonough and the members of the Jail’s security and medical staffs continue to employ aggressive, comprehensive measures to combat the COVID-19 pandemic.
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DIRECTOR MCDONOUGH’S RESPONSE

I.

DIRECTOR MCDONOUGH WILL CONTINUE TO ENSURE THE APPROPRIATE

IDENTIFICATION, MONITORING, TREATMENT, AND HOUSING OF “HIGH RISK

DETAINEES.”

As directed by the Court, Director McDonough’s Response outlines a “comprehensive

written plan … regarding identification, monitoring, treatment, and housing of detainees who are

‘high risk’ for suffering adverse outcomes if infected with COVID-19.” (ECF 85 at 1).

A. The Court’s Definition of “High Risk Detainees.”

The Order defined “high risk” detainees as:

Detainees who are aged 65 or over and/or who have any of the following conditions specifically identified by the [CDC]: (a) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (b) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (c) severe obesity (BMI of 40 or higher); (d) diabetes mellitus Type I or Type II; (e) gestational diabetes mellitus; (f) chronic kidney disease on dialysis; (g) chronic liver diseases, cirrhosis; and/or (g) serious heart conditions including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension.

Id. Director McDonough understands that the Court derived this definition of a “high risk

detainee” from the current information provided by the CDC concerning “Groups at Higher Risk

for Severe Illness” from COVID-19.3

Director McDonough remains concerned with the Order’s definition of “high risk

detainees” for a variety of reasons. First, the Order’s definition omits a critical phrase in the CDC’s

guidance for identifying possibly high-risk individuals which permitted the exercise of medical

3 See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html (last accessed on May 24, 2020).
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judgment. In identifying certain medical conditions which “might [place someone] at higher risk for severe illness from COVID-19,” the CDC qualified the list of medical conditions by noting a potential risk “particularly if [the condition was] not well controlled.” Id, (emphasis added). Stated differently, the CDC expressly acknowledged that the listed medical conditions might not place someone at higher risk from COVID-19 if the condition were well controlled. By omitting this key qualifier, the Order’s definition of “high risk detainees” prevents the members of the Jail’s medical staff from exercising their medical judgment and determining that a detainee might not be at high risk from COVID-19 because his or her medical condition is well controlled.
The Order’s definition of “high risk detainees” also contains ambiguity which creates uncertainty and confusion for Director McDonough and the members of the Jail’s medical staff in seeking to comply with the Order. For example, the Order defines as “high risk” any detainee with a “chronic lung disease,” “immunocompromised status,” “prolonged use of corticosteroids,” “chronic liver disease[ ],” or “serious heart condition[ ].” (ECF 85 at 1). Although the Order provides some examples of these conditions, it does not define these conditions or provide Director McDonough with any guidance in how to define these terms. This lack of certainty with respect to these terms will create challenges for identifying and, therefore, the monitoring, treating, and housing of detainees who might have such conditions. For example, without conducting a liver biopsy of every detainee, Director McDonough could not know whether a detainee has fatty liver disease. Similarly, the members of the Jail’s medical staff could not conclusively determine whether a detainee had a “prolonged use of corticosteroids,” particularly when the Order does not define what constitutes “prolonged” use. In short, the ambiguity in the Order’s definition of “high risk detainees” places Director McDonough at risk of becoming non-compliant with the Court’s Order by not knowing whether a detainee should be designated as “high risk.”
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B. Identifying “High Risk Detainees.” Notwithstanding Director McDonough’s concerns regarding the Order’s definition of “high risk detainees,” the members of the Jail’s medical staff will employ a multi-faceted approach to identify detainees potentially qualifying as “high risk detainees.” This approach builds on the Chronic Care Clinic process utilized by the Jail’s medical staff to provide a system for identifying “high risk detainees” to the greatest extent reasonably possible. As described below, the members of the Jail’s medical staff will cross reference medication administration records with the list of patients currently enrolled in the Chronic Care Clinic process to identify any detainees who might qualify as “high risk” but are not in the Chronic Care Clinic. The Jail’s medical staff will enroll these individuals in the Chronic Care Clinic process for close monitoring of their medical conditions. Furthermore, the members of the medical staff will continue to rely on the medical assessments and evaluations conducted as part of the Intake and Sick Call processes for identifying detainees who may begin exhibiting symptoms of a medical condition qualifying them as “high risk.” i. Chronic Care Clinic. The Chronic Care Clinic process serves as the foundation for the process of identifying “high risk detainees.” Patients at the Jail with chronic medical conditions are automatically enrolled in the Chronic Care Clinic. The members of the Jail’s medical staff evaluate and treat certain pre-defined chronic medical conditions through the Chronic Care Clinic such as, for example, asthma, chronic lung diseases, severe obesity, hypertension, any serious heart condition, diabetes, gastroesophageal reflux disease, kidney diseases (including diseases requiring a patient to undergo dialysis), chronic obstructive pulmonary disease, liver diseases, hyperlipidemia, as well as others. In addition, as a general matter, the medical staff will enroll a patient in the Chronic
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Care Clinic if the patient is elderly (65 years or older) or immunocompromised. Thus, the Jail’s Chronic Care Clinic process includes, but is not limited to, those patients at the Jail who fall within the criteria issued by the CDC for identifying individuals “who might face a higher risk of severe illness from COVID-19.” The Jail’s medical staff maintains a log of the patients enrolled in the Chronic Care Clinic.
As a short-term measure, the members of the Jail’s medical staff will cross reference the list of patients reflected in the chronic care log with the medication administration records for the Jail. If the medical staff identifies any detainee who is currently prescribed with a medication for treating one of the medical conditions qualifying the detainee as “high risk,” the medical staff will enroll the detainee in the Chronic Care Clinic. Thus, the Chronic Care Clinic log will provide the long-term basis for tracking “high risk” detainees at the Jail.
The Intake and Sick Call processes provide the routine procedures for identifying “high risk detainees” and for enrolling in the Chronic Care Clinic process. A detainee is enrolled in the Chronic Care Clinic following an evaluation by a provider who then diagnoses, or verifies a preexisting diagnosis, a chronic medical condition. The provider’s decision to place a detainee on the chronic care list may occur during the Intake process or at any subsequent point during the patient’s time at the Jail.
ii. Intake Process. Every detainee undergoes a nursing assessment, medical history screening, and an evaluation by a medical provider during the Intake process. A nurse conducts a screening and assessment of each detainee within a few hours of his or her commitment into the Jail. [See Exhibit One - Intake and Receiving Screening Form]. During the Intake assessment, the nurse will take the detainee’s vital signs, including temperature, respiration, blood pressure, and will also
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calculate the detainee’s body mass index. Additionally, the nursing assessment includes a screening for symptoms of COVID-19 which has been updated to include all symptoms listed by the CDC. [See Exhibit Two – COVID-19 Screening Form, updated 5/1/2020]. The Intake nurse will also ask the detainee about his or her medical history and prescribed medications, documenting the responses on the Intake Screening Form.
If the nursing assessment or medical history screening indicates a detainee may have a medical condition qualifying him or her as a “high risk detainee,” the Intake nurse will refer the detainee to a medical provider for an evaluation without undue delay. [See Exhibit Three - Health Assessment - History]. If the nursing assessment or medical history screening does not indicate a detainee has a medical condition qualifying him or her as a “high risk detainee,” the detainee’s medical history and physical by a provider must occur within fourteen (14) days of the detainee’s arrival at the Jail. In any event, if the Intake evaluation by the provider leads to diagnosing a detainee with a medical condition qualifying the detainee as “high risk” or confirming such a preexisting diagnosis reported by the detainee, the provider will enroll the detainee in the Chronic Care Clinic.
iii. Sick Call Process. The members of the Jail’s medical staff will also continue utilizing the Sick Call process for identifying “high risk detainees” who begin exhibiting signs of a “high risk” condition after their commitment to the Jail. The Sick Call process is initiated when a detainee places a Sick Call request slip in one of the various Sick Call boxes located at the Jail or by handing a slip to a member of the medical or correctional staff. To the extent that a detainee requires urgent medical care, he or she may make an oral request to a member of the medical or security staff at any point
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in time. The members of the Jail’s medical staff will respond to an urgent need for medical attention without undue delay upon learning of the need for care and provide appropriate attention.
As a general matter, a registered nurse (RN) on the nursing staff will triage written Sick Call requests within twenty-four (24) hours. A member of the nursing staff will inform the relevant members of the correctional staff of who needs to be seen for Sick Call, and the correctional staff will bring those patients to the Medical Unit. Typically, a member of the Jail’s medical staff will see and, as necessary, begin treating a patient within forty-eight (48) hours after the nurse triaged the Sick Call request slip, or more quickly for urgent needs. If the nurse conducting the Sick Call screenings determines that a detainee exhibits symptoms of a “high risk” medical condition or otherwise requires a higher-level of treatment, the nurse will refer the detainee to a medical provider. A provider on the Jail’s medical staff will evaluate the detainee without undue delay and enroll him or her in the Chronic Care Clinic if the provider diagnoses a “high risk” condition. In handling Sick Calls, medical staff try to process one housing unit per day (depending on the number of requests) in order to avoid mixing inmates from different housing units. Although it may take longer for medical staff to get to a unit, these are for triaged, routine requests only. For emergent issues that are reported to staff or indicated on a Sick Call request form, immediate attention will be provided. A nurse will either go the housing unit to see the patient, or have the inmate come to the Medical Unit.
Thus, the Chronic Care Clinic process, the review of the medication administration records, the Intake and Sick Call processes, and the health history assessment will provide a comprehensive system for identifying “high risk detainees.”
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C. Monitoring and Treatment of “High Risk Detainees.” The Chronic Care Clinic process will ensure the known “high risk” detainees receive close monitoring and treatment of their medical conditions. The Chronic Care Clinic is designed to monitor and evaluate detainees with specific conditions that persist for more than six (6) months, including “high risk” conditions. As such, the Chronic Care Clinic process provides the members of the Jail’s medical staff with the tools for monitoring and treating the “high risk” detainees’ medical needs. Once a detainee is enrolled in a Chronic Care Clinic, providers on the medical staff determine, based upon the condition of the detainee, whether a detainee is seen at intervals of thirty (30), sixty (60), or ninety (90) days. During a chronic care visit, a detainee will undergo an evaluation by a provider on the Jail’s medical staff. A detainee will also undergo a nurse screening during the chronic care visit to assess the detainee’s vital signs. If either the evaluation or screening detects indications that the detainee may have COVID-19, the medical staff will test the detainee and place him or her in medical isolation pending the test’s results. Medical staff also remind the detainees during the Chronic Care Clinic visits to alert the medical staff to any changes in the detainees’ symptoms and expressly instruct them regarding symptoms of COVID-19. This is in addition to the posted information and general announcements made in the housing units to all inmates regarding COVID-19. Furthermore, the members of the Jail’s medical staff will continue to monitor the “high risk detainees” through other medical processes in addition to the Chronic Care Clinic. The Chronic Care Clinic’s log assists the medical staff, including the nurses, in tracking and monitoring “high risk detainees.” The members of the Jail’s medical staff will respond without undue delay in the event that any “high risk detainee” reports or exhibits a symptom of COVID-19. For example, the Sick Call nurses will assess and triage without undue delay any “high risk detainee”
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submitting a Sick Call request indicating that the patient is experiencing a possible symptom of COVID-19. Additionally, every detainee in every housing unit will receive a daily temperature check and will be screened for symptoms including cough, chills, sore throat, headache, muscle pain, nausea and vomiting, and new loss of taste or smell. [See Exhibit Four - COVID Daily Screening Form].
Furthermore, members of the Jail’s nursing staff enter each housing unit at the Jail twice a day for purposes of administering medications. Most, if not all, of the “high risk detainees” take medications on at least a daily basis. During the twice-daily medication administration in the housing units, the nurses will ask the “high risk detainees” about, and otherwise look for, any symptoms indicating those patients might have COVID-19.
Additionally, the Jail’s medical staff updated its guidance relating any detainee, including “high risk detainees,” seeking medical attention for symptoms of COVID-19. This updated guidance calls for the medical staff to notify members of the correctional staff to provide any detainee reporting a symptom of COVID-19 with a surgical mask, and to escort the detainee to the medical unit as soon as possible.4 Upon arrival in the Medical Unit, a member of the nursing staff will assess the detainee prior to other detainees. While in the Medical Unit, the correctional staff will keep the detainee away from other detainees. A member of the Jail’s medical staff will assess any detainee reporting a symptom of COVID-19 utilizing the update COVID-19 assessment form.
If the medical assessment of a “high risk detainee” detects symptoms of COVID-19, the members of the Jail’s medical staff will administer a test to the detainee and place him or her in medical isolation. The medical staff will require any detainee who has been tested to remain in
4 Currently, every detainee has been provided a mask, and receives a new one every five days. If a detainee to be transported to Medical is missing his or her mask, correctional officers are to ensure that the detainees have a mask prior to transport.
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medical isolation pending the test results. If the test results are negative, the detainee returns to his or her housing unit. If the test results are positive, the detainee will remain isolated for fourteen (14) days to ensure the detainee does not remain contagious, even though he or she might be asymptomatic.
Detainees in medical isolation receive ready access to the members of the medical staff. The medical isolation cells are located in the Medical Unit. Members of the Jail’s nursing staff make rounds on the patients in medical isolation multiple times a day to check on their status, take vital signs, and assess any changes in their condition. Medical staff will remain acutely alert to any indications that a “high risk detainee” in medical isolation may be experiencing severe illness as a result of COVID-19. Furthermore, in the event that a “high risk detainee”, or any other patient, develops a severe illness due to COVID-19 which requires specialized or emergency care which the Jail’s medical staff could not provide, the medical staff will initiate the process of transporting the detainee to a hospital to receive the necessary care without undue delay.
D. Housing of “High Risk Detainees.” In consultation with Dr. Meskerem Asresahegn, the Jail’s Medical Director, Director McDonough previously decided against housing all of the “high risk detainees” together in a common housing unit or units. Spreading the “high risk detainees” throughout the Jail into various housing units reduced the likelihood of an increased infection rate among the “high risk detainees” from the introduction of a single infected detainee into a housing unit. As discussed above, Director McDonough will house any “high risk detainee” who tests positive for COVID-19 or is awaiting testing results in a medical isolation cell. At this point in time, almost all previously identified “high risk detainees” are each housed in his or her own cell within their housing units. Director McDonough is taking all the necessary
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steps to relocate all “high risk detainees” to single cells whenever possible. Each "high risk" detainee has a note placed on their tracking file indicating he/she is to be housed alone whenever possible. Housing Unit Officers will single cell such inmates, provided that there is available space and there are no classification issues such as co-defendants, or “keep separates,”5 preventing a single cell assignment. The State is accepting 25 inmates from PGCDOC on May 26, 2020, which should help with creating additional space to house high risk inmates in their own cells.
II. DIRECTOR MCDONOUGH WILL ENSURE THE CONTINUED “TRAINING, EDUCATION, AND SUPERVISION” RELATED TO THE IDENTIFICATION OF DETAINEES WITH SYMPTOMS OF COVID-19 AND MEDICAL CARE FOR DETAINEES WITH SYMPTOMS OF COVID-19. Director McDonough’s Response will ensure that members of the Jail’s medical and
security staff receive “training, education, and supervision … on (a) identifying symptoms of COVID-19 in detainees; (b) rendering timely medical care to such detainees; (c) improving sick call response time for COVID-19 symptomatic detainees; and (d) ensuring regularity and accuracy of temperature checks.” (ECF 85 at 2).
A. Training, Education and Supervision of Medical Staff. Corizon provides comprehensive training for all members of the Jail’s medical staff on issues related to identifying symptoms of COVID-19 and providing appropriate care for patients with or suspected of having COVID-19. Corizon continues to update its training and educational materials as the medical community’s understanding of the virus evolves. At the beginning of each week, the Health Services Administrator on the Jail’s medical staff, Abu Kalokoh,
5 A designation of “keep separate” indicates that an inmate has a conflict with another inmate that warrants a housing assignment that keeps those inmates apart, such as being co-defendants, a “victim” or “enemy” designation, a threat based on gang affiliation, court stay-away orders, or similar conflicts. If such a designation is made for one or more inmates to kept separate from a particular inmate, it limits the ability to classify certain detainees into certain housing units. A detainee cannot be moved into a housing unit if he/she has a “keep separate” there.
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disseminates updated training information on COVID-19 to the members of the medical staff. Each member of the medical staff must sign a form acknowledging they received and reviewed the updated training and informational material. Additionally, while large in-person staff meetings remain unadvisable, members of the Jail’s medical staff continue to meet in groups of three (3) to four (4) people to review and discuss updated training and educational materials.
Corizon will ensure the Jail’s medical staff receive training and education on identifying symptoms of COVID-19, providing timely, appropriate medical care for symptomatic detainees, responding to Sick Call requests reporting symptoms of COVID-19 as quickly as possible, and ensuring the regularity and accuracy of temperature checks. The weekly training will include these training topics as necessary to ensure the members of the Jail’s medical staff undergo appropriate training. For example, Corizon will ensure the members of the medical staff continue receiving training and guidance on utilization of the updated COVID-19 screening form and the updated process for triaging requests for care by patients exhibiting or reporting symptoms of COVID-19.
The supervisors on the Jail’s medical staff will continue providing oversight as the members of the medical staff work to identify and provide care to detainees exhibiting symptoms of COVID-19. The Health Services Administrator will direct the quality assurance process to conduct a weekly review of documentation related to the care sought by and provided to patients reporting symptoms of COVID-19 to address the appropriateness and timeliness of care. For example, the supervisors on the Jail’s medical staff will review selections of completed COVID19 screening forms to assess the thoroughness of the screenings and measures taken in response to the information gleaned from the screenings. The supervisors will take any corrective action as necessary to provide additional instruction for members of the nursing staff who fail to correctly screen for the virus. Similarly, the Health Services Administrator and the Director of Nursing will
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review a sample of the Sick Call requests and the Sick Call log to determine the timeliness and appropriateness of responses to requests for care.
They will also review the logs for temperature checks to ensure the members of the nursing staff complete timely, accurate checks. Thermometers will be inspected daily for accuracy and proper calibration. Twelve additional thermometers have been ordered by PGCDOC as a backup to the current infrared thermometers.
In addition to reviewing documentation, supervisors will observe members of the medical staff as they engage in the various functions related to identifying and treating symptomatic patients. The supervisors will take appropriate follow-up action, including providing additional training and education, as necessary.
B. Training, Education and Supervision of Correctional Officers. Each correctional officer will undergo a two-hour training module through e-Learning that will provide information about COVID-19 symptoms, transmission, and safety measures to employ personally and in the work place. This training will include instruction on the use of personal protective equipment, identifying signs and symptoms of COVID, cohorting and protocols to follow if he/she believes someone has been exposed to COVID-19. Upon completing the training, a test will be administered, and officers must obtain an 80% or better as a passing score. Correctional supervisors will ensure that officers under their command take the training in a timely fashion. Similar training modules will be administered on a quarterly basis specific to COVID-19 until the pandemic has abated. In addition, officers will receive bulletins by email with any updated CDC guidance or information, for which he/she must indicate receipt electronically or manually provide a signature to a staff member.
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A supervisor (a sergeant or higher) will visit each housing unit a minimum of three (3) times per shift. During the visit, he/she will inspect all log entries, ensure that proper observations and symptom checks are occurring and are documented in the Offender Management System (“OMS”), that cohort integrity is being upheld on each break, and that proper social distancing protocols are being observed. If there are any issues noted in the log book regarding the provision of PPE, hygiene or cleaning supplies, or other safety protocols related to COVID-19, the supervisor will make personal contact with the inmate to ensure the inmate has all appropriate supplies or follow up as appropriate. The supervisor will also ensure there is an ample supply of Sick Call, Inmate Request and Grievance Forms in each housing unit. III. DIRECTOR MCDONOUGH WILL CONTINUE TESTING FOR COVID-19 AND ISOLATING
COVID-19 POSITIVE DETAINEES AND SYMPTOMATIC DETAINEES AS NECESSARY. A. Testing Current and New Detainees for COVID-19. The recent nationwide expansion in testing capability and increased supply of COVID-19 tests provided additional testing capability at the Jail that was previously unavailable. On Monday May 18, 2010, 300 COVID-19 viral test kits 6 were received through the assistance of Corizon. These test kits allowed for PGCDOC to begin testing asymptomatic inmates assigned to the four housing Units, as recommended by Dr. Carlo Franco-Paredes. On Friday, May 26, 2020, another 300 test kits were delivered to the Jail. As a voluntary measure far exceeding constitutional requirements, Director McDonough recently decided to take advantage of the increased supply of testing kits to greatly expand testing at the Jail, authorizing the testing of all detainees currently at the Jail. As of the filing of this Response, the Jail had obtained sufficient testing kits to test all of the detainees at the Jail. The
6 A viral test is used to determine whether a current COVID-19 infection is present. 16

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Jail’s medical staff currently anticipates completing this testing before June 1, 2020. Additionally, Director McDonough directed that all incoming detainees undergo testing in Processing, prior to placement in a permanent housing unit. It takes 48-72 hours for test results to come back. The recent increase in testing availability in the State may slow result times, as do weekends. All test results are reported to the Prince George’s County Health Department.
Once testing in the two Initial Housing units (H2 and H8) was completed, PGCDOC began the ongoing process of testing all newly committed inmates in Processing before being moved to an Initial Housing Unit. Any inmates with positive results will be moved to the Medical Unit for isolation and treatment. As of May 21, 2020, all current inmates in these two Housing Units were tested. Any new inmates arriving in the Unit are now tested in Processing.
While awaiting test results, detainees are separated and housed individually in cells in the downstairs area of the Housing Unit.7 Until results are returned, detainees remain on 23-hour lockdown, with the exception of being allowed access to phones and showering daily. All inmates in these Initial Housing Units will be quarantined and continue to be screened for symptoms twice per day by medical personnel for at least 14 days before being moved to any permanent Housing Unit. [See Exhibit Four]. If a test results in a positive case, the remaining inmates are quarantined for an additional 14 days after exposure. If a test comes back negative and the inmate is asymptomatic, the detainee can be let out of his or her cell in a cohort of no more than 10 detainees at a time during the remainder of the 14-day quarantine period. Once the initial quarantine period has been completed, the detainee is assigned to a housing unit.
7 Providing single cells for detainees pending return of their test results is possible because of the current number of arrests. Should those numbers rise and providing single cells pending results no longer be feasible in light of space, Director McDonough will consider alternative methods to ensure incoming inmates do not pose a risk of exposure to the existing population of the Jail.
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B. Plan for Obtaining Additional Test Kits. Director McDonough expects to receive sufficient testing kits through Corizon to continue testing detainees going through the Intake process so long as the current rate of approximately twenty (20) new inmates a day remains the same.8 If more test kits are required to meet PGCDOC’s needs beyond what Corizon is able to provide, Director McDonough will again make requests to County and State Health Departments for those resources. Incoming detainees will continue to be isolated from the general population of inmates for fourteen (14) days, pending confirmation of a negative test. C. Criteria for Isolating and Releasing COVID-19 Positive and Symptomatic
Detainees. The members of the Jail’s medical staff will continue relying on guidelines provided by Corizon’s clinical leaders and the CDC as testing becomes necessary following this initial round of testing for all detainees and the testing during the Intake process. If a detainee exhibits symptoms of COVID-19, including a temperature measuring above 100.4 degrees, the medical staff will request for the patient to be brought to the Medical Unit. Once the detainee arrives in the Unit, the medical staff will check his or her temperature a second time and assess for other symptoms. [See Exhibit Two]. If the detainee exhibits symptoms consistent with COVID-19, the medical staff will administer a test and isolate the detainee. If the detainee tests negative, he or she is returned to their housing unit.
8 This testing of new intakes remains subject to the availability of testing supplies. While Corizon currently has access to sufficient supplies, future events out of the control of Director McDonough and Corizon could interrupt access to these supplies, including a spike in demand for testing kits.
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i. Medical Isolation. If a test result is positive, a symptomatic detainee will remain isolated for fourteen (14) days in the Medical Unit. Once they become asymptomatic, they will be moved to Housing Unit 6, which only houses inmates that have tested positive for COVID-19 that are not displaying symptoms. An asymptomatic detainee with a positive test result will remain isolated in Housing Unit 6 in his/her own cell to ensure the patient does not remain contagious. The inmate’s symptoms and temperature will be taken twice a day and if any symptoms occur, he/she will be moved back to the Medical Unit. Housing Unit 6 is equipped with showers, inmate telephones and a recreation yard, as well as a large common space for relaxation and reading. Inmates housed in this Unit have access to these features while maintaining isolation from inmates in other housing units who have not tested positive. Mental health treatment will still be provided to inmates, on a one on one basis, during medical isolation. Inmates will remain in medical isolation for at least fourteen days with no symptoms, which is four days longer than recommended by CDC. ii. Quarantine. Quarantine will be used for those inmates who have had close contact with another inmate who tested positive for COVID-19. Despite having a negative result from the test performed in Processing, any inmate that later displays symptoms of COVID-19 will be tested. In the event a negative test result is received for an asymptomatic inmate, but a concern exists that he/she may have been exposed, a 14-day quarantine will be imposed. In the case of a positive case in a Housing Unit (not Initial Housing), all inmates in the same Housing Unit will be quarantined, regardless of whether they reside on the top or bottom level of the unit. Quarantined inmates will remain in the Housing Unit in which they are currently living, but will undergo twice-daily screenings for all symptoms, as recommended by the CDC,
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for 14 days. [See Exhibit Four]. During this screening, special attention will be given to “high risk detainees,” whose names will be highlighted on the unit rosters for medical staff to ensure close monitoring of their health conditions as described above. Inmates will only be allowed out of their quarantined unit to go to the Medical Unit. Quarantined inmates will have access to showers, inmate phones, televisions, recreation yards and the large common room areas within their own Housing Units. Similar to medical isolation, mental health treatment is provided to inmates during this time. At the end of the quarantine period, inmates will be re-tested for COVID19. Upon receiving a negative test result, the inmate will be released from quarantine status.
If the positive inmate had a cellmate, the cellmate will be moved to another cell by himself, and the previous cell will be locked and kept empty until it is thoroughly cleaned by a contracted cleaning crew using CDC recommended cleaning and disinfecting methods. Cellmates of infected inmates who have tested negative will be thoroughly screened by medical personnel and then placed on the twice per day screening protocol like all other inmates in the Unit.
In the case of a detainee who makes bond or is released prior to a positive test result being returned, PGCDOC will contact the Prince George’s County Health Department, who will make the necessary notifications. Under no circumstances would an individual be held by the Jail contrary to a court order pending test results or quarantine completion.
All protocols for quarantine, medical isolation and testing will be subject to regular review by the Jail’s Medical Director and subject to change based on new information made available about COVID-19. Any deviation from CDC guidance by the Jail, if any, would only be done at the direction of the Medical Director.
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Filed: 05/26/2020

Respectfully submitted,
RHONDA L. WEAVER COUNTY ATTORNEY
ANDREW J. MURRAY DEPUTY COUNTY ATTORNEY
______________/s/________________ Ann E. Koshy, Fed. Bar No. 19333 Shelley L. Johnson - Fed Bar No. 15853 Associate County Attorneys PRINCE GEORGE’S COUNTY OFFICE OF LAW Wayne K. Curry Administration Building 1301 McCormick Drive, Suite 4100 Largo, MD 20774 Direct: (301) 952-2842; Fax: (301) 952-3071 aekoshy@co.pg.md.us sljohnson@co.pg.md.us

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Third Affidavit of Mary Lou McDonough
My name is Mary Lou McDonough. I am over 18 years of age and am competent to testify. The following statements are made based upon my personal knowledge and my knowledge as Director of the Prince George’s County, Maryland Department of Corrections (DOC). I have previously submitted two Affidavits in this Case.
On Monday, May 11, 2020, I reached out to Dr. Ernest Carter, the Health Officer for Prince George’s County and head of its Health Department. I explained that Dr. Carlos FrancoParedes, the Court-appointed Infectious Disease Expert, had completed his report on conditions at the Jail and made several recommendations that the Department wants to implement. The major one that I needed the Health Department’s assistance with is obtaining enough COVID-19 tests to test the inmates in Housing Units 1, 9, 10 and 17 approximately 200 tests, plus an additional 20 tests per day (or 140 per week) in order to start testing all new inmates who are committed to the Jail. Dr. Carter explained that availability of tests through the State had loosened somewhat very recently and that he was somewhat confident that we would be able to obtain tests. He put me in touch with his Associate Director, Diane Young, RN. After I had a conversation with Ms. Young, she placed an order for the tests with the State of Maryland’s Department of Health.
On Thursday, May 14, 2020, Ms. Young informed me that the State was not releasing tests for correctional facilities at this time, as it was not deemed a priority under their criteria. She has asked the State Lab Director to reconsider our request. In the meantime, the County Health Department is pursuing other sources for the tests. Prince George’s County has not seen a slowing of the spread of COVID-19 in the community as other counties have, and still needs
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additional tests for community usage. The State Health Department has stated that testing asymptomatic individuals is not a priority because all available tests are being used for symptomatic patients. As of Friday, May 15, 2020 we currently had access to tests for symptomatic patients only.
I continued to pursue the procurement of tests for the purposes of testing inmates through our Medical Provider, CORIZON Correctional Healthcare. On Friday evening, I was notified by CORIZON that they were able to purchase tests from a medical lab who they had a Contract with, Bio-Reference. While CDC is still recommending testing symptomatic individuals only, there is no restrictions on how tests are used. I approved the order of the tests and notified CORIZON that the County would reimburse them for purchase and laboratory fees to use the tests to test asymptomatic inmates as recommended by Dr. Franco. We are working with CORIZON staff to begin the testing of inmates on Tuesday, May 19, 2020 and continue testing until all the inmates in the Housing Units recommended by Dr. Franco are tested, along with all newly committed inmates.
Individuals who test positive will be quarantined in accordance with CDC and Health Department guidelines.
As stated above, the Prince George’s County Department of Corrections contracts medical services for its inmate population with CORIZON Health Services. Dr. Meskerem Asresahegn (often referred to as “Dr. Meski”) is the Physician at the Department and specializes in correctional health care. Early in 2020, during our planning for a possible Coronavirus outbreak in Prince George’s County, I discussed with Dr. Meski and our Medical Administrator, Abu Kalokoh, how we would handle chronically ill inmates who were recognized by the Centers for Disease Control (“CDC”) to be at “High Risk” from the Coronavirus. Together, we agreed
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that Dr. Meski would share a listing of these inmates in an attempt to have them released early by the Courts or to have them returned to the community through our pre-trial release program. More than 10% of these inmates have been released through those efforts. Knowing that many were charged with serious crimes and/or had a long criminal history, we also discussed their treatment in the Jail during an outbreak. It was agreed that those who could not be released would remain in place, with additional medical supervision provided by our medical provider, Corizon. Many of these inmates would normally attend Chronic Care Group sessions in the Medical Unit. It was decided that if a COVID-19 outbreak occurred in the Jail, all inmate movement would stop and inmates, both High Risk and not, would remain in their current Housing Units.
The lack of movement in the Jail was done for the protection of all the inmates, particularly those identified by the CDC as being at higher risk from COVID-19. I consulted with both our Physician and Medical Administrator about the possibility of moving high risk inmates from their current units into one unit. Their medical opinion was, and continues to be, that such a move would create more risk for them than medically supervising them in their current housing units throughout the Jail.
At the bottom of page 9 and top of page 10 of Dr. Franco’s inspection report, he credits the intervention of no new transfers between Housing Units and lack of inmate movement as an important impact in reducing transmission of COVID-19. Dr. Franco recommends that we make an attempt to single cell the medically vulnerable inmates and we are attempting to do that, although it cannot be done completely because of the number of inmates in some of the larger Housing Units. We have marked each of these inmate files in our Jail Management System as “Single Cell Priority.” Any double celled inmates are single celled as space allows.
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I SOLEMNLY SWEAR AND AFFIRM UNDER THE PENALTIES OF PERJURY THAT THE FOREGOING STATEMENTS ARE TRUE AND BASED UPON MY PERSONAL KNOWLEDGE AND THE KNOWLEDGE OF THE COUNTY CORRECTIONAL FACILITY.

Mary Lou McDonough

May 18, 2020 Date

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Office of the Health Officer

AFFIDAVIT OF EARNEST L. CARTER, MD, Ph.D

My name is Earnest Carter. I am over 18 years of age and am competent to testify. The following statements are based upon my personal knowledge:
I am a licensed physician in the State of Maryland with a specialty in pediatrics. I also hold a Ph.D in bioengineering. I have been a licensed physician for over 30 years. A copy of my curriculum vitae is attached herewith. I am currently the Health Officer for Prince George’s County, Maryland. Previously I was the Deputy Health Officer. My duties as the County Health Officer are to provide direct oversight and management of all 485+ employees in the divisions of Family Services, Assessment and Planning, Health & Wellness, Behavioral Health, Administration and Finance, Environmental Health and Communicable Disease Control, Communications, Public Health Emergency Preparedness as well as oversight of all clinical programs and providers. I maintain, as part of my staff, the Program Chief for Communicable and Vector-borne Disease Control, who is currently Angela Crankfield-Edmond.

When news of the seriousness of the Coronavirus (SARS, COVID 19) was received, the

County Government began to coordinate efforts to combat its spread, beginning with a cabinet

meeting held by the County Executive on March 4, 2020. Attendees of the meeting included

Directors from all county agencies, including mine and the County’s Office of Emergency

Management. Numerous such meetings have been held since to include the attendance of Mary

Lou McDonough, Director of the County Correctional Facility. I have spent the last two months,

Angela D. Alsobrooks County Executive

Headquarters Building 1701 McCormick Drive, Suite 200, Largo, MD 20774 Office 301-883-7834, Fax 301-883-7896, TTY/STS Dial 711 www.princegeorgescountymd.gov/health

CCaassee 88::2200--ccvv--0011002288--PPXX DDooccuummeenntt 779780--117 FFiilleedd 0055//112997//2200 PPaaggee 22 ooff 44 Page 2 of 4
as have most officials within County government, predominantly addressing issues related to the COVID 19 outbreak. The County Detention Center’s Director, Ms. Mary Lou McDonough, has consulted me multiple times over a period of two or more months concerning the appropriate steps to follow to prevent and/or control the spread of the virus within the Detention Center among both staff and the inmates. She has consulted me and Ms. Crankfield-Edmond numerous times about how to best implement the guidelines promulgated by the Centers for Disease Control, including proper cleaning, cleaning materials and solutions, social distancing, personal protection equipment, testing, and the decision to go to full inmate lock-down. I have also communicated extensively with the correction center medical care staff about the processes to follow for inmate testing and quarantine.
It should be noted that test kits were not readily available during the onset of the pandemic. This continues to be a challenge and has negatively impacted the County’s ability to test adequately for a population of over 900,000 residents. We were able to receive a total of 3 test kits from Lab Corp on March 19, 2020 and 151 test kits from Quest Lab on March 28, 2020, in order to begin our testing operations. We subsequently received test kits from Lab Corp as follows: 100 on April 2; 200 on April 6; 450 on April 9; 150 on April 14; 850 on April 15; 1000 on April 27, and 2500 on April 30, totaling 5,255 test kits. The Maryland Department of Health provided testing protocols/prioritization criteria for local health departments, which were based on CDC Guidance. These are outlined as follows:

Angela D. Alsobrooks County Executive

Headquarters Building 1701 McCormick Drive, Suite 200, Largo, MD 20774 Office 301-883-7834, Fax 301-883-7896, TTY/STS Dial 711 www.princegeorgescountymd.gov/health

CCaassee 88::2200--ccvv--0011002288--PPXX DDooccuummeenntt 779780--117 FFiilleedd 0055//112997//2200 PPaaggee 33 ooff 44 Page 3 of 4
Priority 1 - Hospitalized patients; and - Healthcare facility workers with symptoms.
Priority 2 - Patients in long-term care facilities with symptoms; - Patients 65 years of age and older with symptoms; - Patients with underlying conditions with symptoms; - Healthcare facility workers with symptoms; and - First responders with symptoms.
Priority 3 – As resources allow, test individuals in the surrounding community of rapidly increasing hospital cases to decrease community spread and ensure health of essential workers.
- Critical infrastructure workers with symptoms; - Individuals who do not meet the above categories with symptoms; - Healthcare facility workers and first responders; - Individuals experiencing mild symptoms in communities experiencing high numbers of
COVIID-19 hospitalizations; Non-Priority
- Individuals without symptoms. According to CDC (https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm.),
hospitalization rates for COVID-19 positive persons increase with age. More specifically, those
between the age of 19 years and 49 years have a hospitalization rate of 2.4, compared to a 7.4
hospitalization rate for those between 50 and 64 years of age. Since 90% of DOC’s inmate
population is under the age of 50, the likelihood of COVID-19 positive inmates experiencing
complications that result in hospitalization is extremely low.
DOC has followed the CDC’s guidance to identify persons with COVID-19 and follow
prevention measures within the jail to protect incarcerated or detained persons, staff members,

Angela D. Alsobrooks County Executive

Headquarters Building 1701 McCormick Drive, Suite 200, Largo, MD 20774 Office 301-883-7834, Fax 301-883-7896, TTY/STS Dial 711 www.princegeorgescountymd.gov/health

CCaassee 88::2200--ccvv--0011002288--PPXX DDooccuummeenntt 779780--117 FFiilleedd 0055//112997//2200 PPaaggee 44 ooff 44 Page 4 of 4
and Prince George’s County. Personal hygiene and cleaning supplies were provided to all units and are regularly replenished.
To reduce COVID-19 spread in the county jail and allow effective social distancing, DOC has coordinated with the Prince George’s County State’s Attorney’s Office and th county public defender’s office to reduce the jail population. These efforts have resulted in the release of nonviolent offenders from the county jail since March 2020, thus resulting in a significant reduction in the jail population.
It is my opinion that given the circumstances, Ms. McDonough has implemented the best practices possible in a correctional setting. The contagiousness of the COVID 19 virus is unprecedented in our experience with communicable diseases and, although the virus is present in the jail, it has not spread nearly as quickly as would be expected in the jail setting. This is a testament to the efforts Ms. McDonough has taken to avoid its spread
I SOLEMNLY SWEAR AND AFFIRM UNDER THE PENALTIES OF PERJURY THAT THE FOREGOING STATEMENTS ARE TRUE AND BASED ON MY PERSONAL KNOWLEDGE.

________________________________ Earnest L. Carter, M.D., Ph.D

_______0_5_-_1_7_-2__0_________ Date

Angela D. Alsobrooks County Executive

Headquarters Building 1701 McCormick Drive, Suite 200, Largo, MD 20774 Office 301-883-7834, Fax 301-883-7896, TTY/STS Dial 711 www.princegeorgescountymd.gov/health

CCasaese8:82:02-0c-vc-v0-10012082-8P-XPX DDocoucmumenetn9t 03-8 FiFleilded040/52/12/72/020 PaPgaege1 1ofo2f 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

KEITH SETH, et al., Individually and on behalf of a class of similarly situated persons,
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections,
Defendant-Respondent.

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Case No.

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PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiffs respectfully move this Court for the entry of a temporary restraining order and preliminary injunction. As more fully articulated in the attached memorandum, Defendant’s actions in response to the COVID-19 pandemic have violated their rights under the Eighth and Fourteenth Amendments of the United States Constitution.
Further, a subset of Plaintiffs, all of whom are medically vulnerable persons, petitions this Court for writs of habeas corpus under 28 U.S.C. § 2241.

Respectfully submitted on April 20, 2020,

By s/Elizabeth Rossi Elizabeth Rossi Bar No. 19616 Katherine Chamblee-Ryan application to the Bar of this Court pending Olevia Boykin application forthcoming Ryan Downer application pending

CCasaese8:82:02-0c-vc-v0-10012082-8P-XPX DDocoucmumenetn9t 03-8 FiFleilded040/52/12/72/020 PaPgaege2 2ofo2f 2

CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Suite 800 Washington, D.C. 20009 katie@civilrightscorps.org 610-931-7715
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on April 21, 2020 I caused the foregoing document to be electronically transmitted to the Clerk’s Office using the CM/ECF System for filing. This Emergency Motion for Temporary Restraining Order and Preliminary Injunction will be served in accordance with the Federal Rules of Civil Procedure.

Date: Apr. 21, 2020

/s/Elizabeth Rossi Elizabeth Rossi

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 Case 8:20-cv-01028-PX Document 92 Filed 05/29/20 Page 1 of 16

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

KEITH SETH, et al., Individually and on behalf of a class of similarly situated persons
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections
Defendant-Respondent.

Civil Action No. 8:20-cv-01028-PHX
Plaintiffs’ Opposition to Defendant’s Motion to Stay the Court’s May 21, 2020 TRO

Defendant Mary Lou McDonough is not entitled to a stay of the Court’s May 21, 2020, Memorandum Opinion (“Mem. Op.”) and Temporary Restraining Order (“May 21 Order” or “TRO”) (ECF Nos. 84 & 85) pending appeal, and the Court should deny Defendant’s Opposed Emergency Motion to Stay Pending Appeal (ECF No. 90) (“Mot.”). I. INTRODUCTION
Defendant is not entitled to a stay pending appeal because the May 21 Order is not appealable, and even if the Order is appealable, Defendant has failed to establish that any of the criteria for a stay pending appeal are satisfied here. Defendant is not likely to succeed on the merits, and Defendant will not suffer any irreparable injury by complying with the TRO. However, Plaintiffs will be substantially injured by a stay of the TRO and the public interest will not be served by granting the stay.

Case 8:20-cv-01028-PX Document 92 Filed 05/29/20 Page 2 of 16
II. ARGUMENT As an initial matter, the Court’s May 21 Order is a temporary restraining order and
therefore not appealable. See, e.g., Northeast Ohio Coalition for Homeless & Serv. Emps. Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1005 (6th Cir. 2006) (“[T]his court generally lacks jurisdiction to hear an appeal of the district court's decision to grant or deny a TRO.”); Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 426 (5th Cir. 1981) (“The disposition of a motion for a temporary restraining order is generally not appealable under 28 U.S.C. § 1292(a)(1) as an order granting, denying, or modifying an injunction.”); cf. Bratcher v. Clarke, 725 F. App’x 203, 204 (4th Cir. 2018) (“An order denying a preliminary injunction is an immediately appealable interlocutory order.”) (citing 28 U.S.C. § 1292(a)(1)).
However, if the TRO were appealable, “[t]he standards for granting a stay closely resemble the standards for the grant of a preliminary injunction.” Condon v. Haley, 21 F. Supp. 3d 572, 587 (D.S.C. 2014). Those standards include “(1) ‘a strong showing’ that the party requesting the stay will succeed on the merits; (2) the presence of irreparable injury by the party seeking the stay; (3) whether the stay will substantially injure other parties to the litigation; and (4) whether the public interest is served by the grant of the stay. Condon, 21 F. Supp. 3d at 587 (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). Importantly, “[a] stay ‘is not a matter of right’ and the party seeking a stay bears the burden of demonstrating the presence of the exacting standards for the granting of such relief.” Id. Defendant cannot satisfy its burden.
A. The Court’s TRO Is Not An Appealable Order Under 28 U.S.C. § 1292(a)(1), the federal courts of appeal only have jurisdiction over “[i]nterlocutory orders of the district courts of the United States, . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions[.]”
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This jurisdictional requirement bars the appeal of temporary restraining orders. See Northeast Ohio Coalition, 467 F.3d at 1005 (“[T[his court generally lacks jurisdiction to hear an appeal of the district court's decision to grant or deny a TRO.”); Belo Broadcasting Corp., 654 F.2d at 426 (same).
The May 21 Order is plainly a TRO, not a preliminary injunction. It is, as the Court expressly said, “temporary.” Mem. Op. at 33. The Court has already scheduled a hearing on June 22 to decide whether to extend it. May 21 Order at 2. And the May 21 Order is consistent with the time limits imposed on temporary restraining orders by Federal Rule of Civil Procedure 65(b)(2), which applies only to temporary restraining orders, and which the May 21 Order cited. See May 21 Order at 2 (citing Fed. R. Civ. P. 65(b)(2)); see also Fed. R. Civ. P. 65(b)(2) (providing requirements for temporary restraining order extensions); Mem. Op. at 33 (“Plaintiffs have convinced the Court that temporary injunctive relief, narrowly drawn, is proper.” (emphasis added)). Rule 65(b)(2) puts an outer limit of 28 days on temporary restraining orders (at least when issued without notice), and the order here imposes obligations only from May 26 (when defendants’ first plans were due) until June 22, a total of 26 days. See Costa v. Bazron, 2020 WL 2410502, at *4 (D.D.C. May 11, 2020) (“It is well-settled that 28 days is the outer limit for the time that a TRO can remain in place without consent of the enjoined party, regardless of whether the TRO was issued with or without notice.” (citing H-D Michigan, LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827, 844 (7th Cir. 2012) and Sampson v. Murray, 415 U.S. 61, 87 (1974)).1 The order is thus fully consistent with the Fourth Circuit’s rule that district courts have “broad discretion . . . to manage the timing and process for entry of all interlocutory injunctions—both
1 Temporary restraining orders issued without notice are limited to an initial 14 days but may be extended if the Court finds there is good cause for such an extension. That requirement need not apply here, since the TRO was issued on notice, but in any event there is ample cause for the TRO to remain in effect for 28 days, in order to provide adequate time to evaluate the efficacy of the Defendant’s plans.
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TROs and preliminary injunctions—so long as the opposing party is given a reasonable opportunity, commensurate with the scarcity of time under the circumstances, to prepare a defense and advance reasons why the injunction should not issue.” See Ciena Corp. v. Jarrard, 203 F.3d 312, 319 (4th Cir. 2000).).
Here, Defendant had an opportunity to respond to Plaintiffs’ Motion for a TRO, to place hundreds of documents in the record, and to be heard orally and in writing before the Court entered the TRO. Furthermore, the Court’s Order is temporary relief limited in time by the upcoming hearing on June 22, 2020, at which time the Court has explained it will “determine whether th[e] order should be extended or modified.” May 21 Order at 2. Additionally, the Parties have agreed to an evidentiary hearing to commence on or after June 29, 2020, which further echoes both Parties’ understanding that the relief ordered in the May 21 Order is temporary and based on an initial assessment of the facts in this case. See Joint Status Report Regarding Scheduling at 2, ECF No. 91.
Accordingly, the Court properly exercised its authority to enter a TRO in this matter, and because a TRO is not an appealable order, Defendant is not entitled to a stay pending appeal.
B. Defendant Is Not Likely To Succeed On The Merits Of Its Appeal Defendant fails to make a “strong showing” it is likely to succeed on the merits. Nken, 556 U.S. at 434. Defendant presents four arguments for its claim that is likely to succeed on appeal. First, Defendant claims that Plaintiffs failed to exhaust administrative remedies as required under the Prison Litigation Reform Act (“PLRA”). Mot. at 3. This claim fails because there is robust evidence in the record that no administrative process was available to Plaintiffs. The PLRA provides that “[n]o action shall be brought with respect to prison conditions under
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section 1983 . . . or any other federal law . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (emphasis added). However, it is axiomatic that administrative remedies are not available where “prison employees do not respond to a properly filed grievance, or if they otherwise act to prevent a prisoner from exhausting his administrative remedies.” Washington v. Rounds, 223 F. Supp. 3d 452, 459 (D. Md. 2016); see also, e.g., Ross v. Blake, 136 S.Ct. 1850, 1855 (2016) (“A prisoner need not exhaust remedies if they are not ‘available.’”); Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (“[A]n administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.”).
Here, there is strong record evidence that Defendant’s purported grievance process was in fact not available to Plaintiffs. At least seven uncontested declarants explained that the Jail’s grievance process was not available to them for the purpose of complaining about the Jail’s constitutionally insufficient response to the COVID-19 pandemic. See, e.g., Decl. of Declarant #10 at ¶ 24, ECF No. 2-10 (“First, if you ask for a grievance form, they might not give you one at all. And second, if you even ask for a grievance form, they know you’re trying to report them. I’m too afraid of retaliation by the COs to ask for a grievance form from in here. . . . I’m afraid if I even ask for a grievance form, they’ll just send me back to the isolation cell.”); Decl. of Declarant #11 at ¶ 38, ECF No. 2-11 (“I can’t file a grievance about any of this, because they won’t give us any paper or anything to write with. And they’ve said anything that goes into our cells can’t come back out, including paper.”); Decl. of Declarant #14 at ¶ 10, ECF No. 2-14 (“I have asked for a grievance form but was refused.”); Decl. of Declarant #19 at ¶ 11 (ECF No. 219) (similar); Decl. of Declarant #23 at ¶ 9 (ECF No. 2-23) (similar); Decl. of Declarant #24 at ¶ 12 (ECF No. 2-24) (similar). Furthermore, the Court-Appointed Independent Inspector, Dr.
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Franco-Paredes, explained that “[t]here is no existing functioning protocol for inmates to report grievances of recent negative events. It is a major challenge for detainees to report any abuses.” Expert Report of Dr. Carlos Franco-Paredes at 8, ECF No. 65-1 (May 11, 2020).2
Accordingly, Defendant has failed to make a “strong showing” that it will prevail on this argument on appeal because there is overwhelming evidence that no administrative remedies were “available” to Plaintiffs for them to exhaust under the PLRA.
Second, Defendant claims that Plaintiffs’ Eighth and Fourteenth Amendment claims lack merit and are unsupported by the record. Mot. at 3. As with its first argument, this claim fails because there is ample record evidence that Defendant violate Plaintiffs’ Eighth and Fourteenth Amendment rights with respect to the constitutionally insufficient prison conditions. To succeed on appeal, Defendant must persuade the Fourth Circuit that this Court erred by concluding that “COVID-19 objectively presents a substantial risk of harm to detainees’ health,” and “Plaintiffs have demonstrated likelihood of success on the merits as to the objective prong of the deliberate indifference test,” Mem. Op. at 23-24; and that Defendants acted with reckless disregard of this risk in light of the “clear triple-threat: (1) undertesting, and (2) inadequate treatment and isolation of COVID-19 symptomatic detainees, and (3) no plan for those at high risk of COVID19 complications,” id. at 26. See Cox v. Quinn, 828 F.3d 227, 235-236 (4th Cir. 2016) (describing the two-prongs of an Eighth Amendment violation).
To start, Defendant does not dispute that the COVID-19 pandemic presents an objectively substantial risk of harm and has not argued that the Jail’s actions were objectively
2 The mere fact that a formal grievance process may exist does not mean that it is available. Accordingly, the existence of a formal grievance process that requires the permission of correctional officers at the Jail as prescribed in Defendant’s Handbook, see ECF No. 37-4 at 76-77, is in fact unavailable for PLRA-purposes when the processed is, as described by declarants and Dr. Franco-Paredes, unable to be accessed.
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reasonable. See Mot. at 3 (omitting any discussion of the objective prong of the Eighth Amendment analysis). This concession alone may prove fatal on appeal. Indeed, this Court acknowledged in its Memorandum Opinion that there is serious dispute about whether pretrial detainees must satisfy both the objective and subjective prongs of the Eighth Amendment analysis, as opposed to only the objective prong as the Supreme Court has recently suggested and other courts have held, see May 21 Order at 22-23 (“Whether both prongs of the deliberate indifference standard apply to pretrial detainee claims has been the subject of much debate.”).3 Accordingly, if the Fourth Circuit adopts the reasoning of its sister circuits and holds that Kingsley applies to medical conditions at the Jail, Defendant’s concession on the objective prong will be fatal. This alone belies Defendant’s claim that it has made a “strong showing” that it is likely to succeed on the merits of this claim.
Nevertheless, even if the subjective—reckless disregard—prong does apply to the pretrial conditions claims in this case this Court’s holding that Plaintiffs are likely to succeed on this prong is supported by ample record evidence. This Court’s holding relied on an easily supported trifecta of “(1) undertesting, and (2) inadequate treatment and isolation of COVID-19 symptomatic detainees, and (3) no plan for those at high risk of COVID-19 complications,” Mem. Op. at 26.
3 See Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (“[A] pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.”); see also Miranda v. Cty of Lake, 900 F.3d 335, 352 (7th Cir. 2018) (“We thus conclude, along with the Ninth and Second Circuits, that medical-care claims brought by pretrial detainees under the Fourteenth Amendment are subject only to the objective unreasonableness inquiry identified in Kingsley.”); Banks v. Booth, No. 20-849 (CKK), 2020 WL 1914896, at *6 (D.D.C. Apr. 19, 2020) (“Based on the pertinent reasoning of Kingsley and the persuasive authority of other courts, the Court concludes that pre-trial detainee[s] . . . do not need to show deliberate indifference in order to state a due process claim for inadequate conditions of confinement. As such, under the due process clause, pre-trial detainee[s] . . .are likely to succeed on the merits by showing that the Defendants knew or should have known that the jail conditions posed an excessive risk to their health.”).
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1. Defendant undertested people incarcerated at the Jail When this litigation commenced Defendant had tested 20 people incarcerated at the Jail and 18 of those people tested positive for COVID-19. Decl. of Dr. Asresahegn at ¶¶ 5, 33, ECF No. 29-1 (providing that 20 COVID-19 tests have been performed and “only eighteen (18)” patients tested positive within just a four-week period). With a positive test rate of 90%, it is easy to conclude that Defendant was significantly undertesting people incarcerated at the Jail. Furthermore, as this Court explained “Defendant knew the Facility had scores of untested detainees who had been in contact with the confirmed COVID-19 detainees.” Mem. Op. at 7. Nevertheless, the “Facility maintained only 20 additional test kits,” and “had no plan for how to secure more tests, or how to administer the tests on hand, as recommended by the CDC.” Id.
2. Defendant inadequately treated and improperly isolated COVID-19sympotmatic people incarcerated at the Jail
The record is replete with evidence that Defendant inadequately treated and isolated COVID-19 symptomatic people held at the Jail. See, e.g. Decl. of Declarant #11 at ¶ 10, ECF No. 2-11 (“I went back and forth from the medical unit three times before they finally took my symptoms seriously and put me in isolation”); Decl. of Declarant #17 at ¶ 4, ECF No. 2-17 (“I asked to be tested for the virus, but they said they don’t have any tests. Last night I went to sick call again. I had a fever and a headache. They told me that my fever wasn’t high enough, and that they would only test me if it got higher. They told me to drink water and sent me back to the unit.”); Decl. of Declarant #9 at ¶ 17, ECF No. 2-9 (“It took four or five days before they gave me a hygiene kit in the medical unit. Before then, I had no soap, toothbrush, toothpaste, or deodorant to keep myself clean. I asked them many times, but the COs would play with us and tell us we didn’t need a hygiene kit. Finally the nurse went to the Sergeant and told him what was going on, and the Sergeant got us our hygiene kits. They gave us the hygiene kits for free
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because we’re on the medical unit. But on the housing unit, the hygiene kits cost about $9.”); see also Mem. Op. at 8 (noting that “[o]ther detainees reported chronic lack of timely—or sometimes any—medical care, even when they presented with and complained of COVID-19 symptoms to Facility staff,” and collecting record cites).
3. Defendant failed to develop or implement a plan for high-risk people incarcerated at the Jail
The Jail did not have a plan for identifying, protecting, and treating people incarcerated at the Jail who are at high risk of serious complications should they contract COVID-19. The Court found the same to be true even after “several rounds of briefing and this Court’s pointed questions regarding the Facility’s plan for high risk detainees.” Mem. Op. at 26 n. 21.4
Third, Defendant seems to argue, without legal support, that it is likely to succeed on appeal because the Court’s remedy—requiring certain plans to be put in place—does not address the Eighth and Fourteenth Amendment violations. Mot. at 5-6. However, the Court’s remedy goes to the heart of the Court’s trifecta of concerns. Moreover, courts routinely order corrections facilities to create plans, whether on their own or by conferring with Plaintiffs, to remedy conditions—indeed, doing so is a means of ensuring that corrections officials maintain discretion in how to carry out the necessary remedies. See, e.g., Carranza v. Reams, No. 20-cv-00977PAB, 2020 WL 2320174 at *12-15 (D. Colo. May 11, 2020) (ordering a jail to identify medically vulnerable prisoners and “put in place a plan” to protect them; “implement a plan” to improve sanitation in certain areas; and “formulate a plan” to obtain sufficient masks); MartinezBrooks v. Easter, 20-cv-569-MPS, 2020 WL 2405350, at *32-34 (D. Conn. May 12, 2020) (ordering Defendant to develop certain plans and that parties confer to implement relief); Braggs
4 In Plaintiffs’ view, the Jail still lacks an adequate plan to identify, protect, and treat medically vulnerable detainees.
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v. Dunn, 257 F. Supp.3d, 1171, 1268 (M.D. Ala. 2017) (finding Eighth Amendment violation and ordering parties to “meet to discuss a remedy”). To be sure, the “plans” promulgated by Defendant in response to the TRO are woefully insufficient and do not appear to comply with the Court’s TRO in several respects. Compare, e.g., May 21 Order at 1 (requiring that Defendant file a “comprehensive written plan” that addresses the treatment of high risk detainees), with Def.’s Resp., Doc. 88 at 10-12 (including no plan for treatment of high risk detainees beyond the general statement that any inmate who develops serious illness from COVID-19 will be transferred to the hospital); Doc. 85 at 1 (requiring that Defendant’s plan address the “specific steps” it will take to secure single-cell housing for high risk detainees when appropriate), with Doc. 88 at 12-13 (providing no specific steps beyond the placement of a note on high risk inmates’ tracking file that they should be housed alone “whenever possible”). However, these inadequacies are not a reflection of the Court’s Order, but of Defendant’s continued reckless disregard for the constitutional rights of Plaintiffs.
Fourth, Defendant seems to argue that the Court’s Order requiring a plan for hygiene and sanitation is unsupported by the record. Mot. at 6. However, there is ample record evidence that these supplies were not being afforded to Plaintiffs prior to and after commencement of this litigation, and that alone is a sufficient legal basis for this Court’s imposition of such a plan in its TRO. See Mem. Op. at 12 n.3 (“The record, when viewed as a whole, reflects historic insufficient provision of soap, masks, cleaning products, and a lack of social distancing.”) (citing ECF Nos. 2, 3-1, 29, 36, 37); see also Doc. 3-1 at 5-6 (citing evidence about inadequate hygiene and sanitation practices); Doc. 44 at 14-15 (citing to evidence that cleaning supplies were scare at the Jail). Moreover, contrary to Defendant’s representations, the Independent Inspector’s report does not suggest that the Jail is complying with CDC guidelines for hygiene and
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sanitation; it states that the Jail had provided extra cleaning supplies and soap “recently,” but that detainees “consistently” reported that they do not have adequate supplies to clean their cells, and that the medical isolation cells were clean (and empty) on the day of the visit. Doc. 65-1 at 10. None of these findings—nor any other evidence submitted by Defendant—demonstrates meaningful, day-to-day compliance with the CDC guidelines, particularly in light of the Jail’s failures on these measures. Accordingly, Defendant is not likely to succeed on appeal on this claim.
In short, each of Defendant’s proposed arguments on the merits on appeal are without merit and therefore Defendant is not entitled to a stay pending appeal.
C. Defendant Will Not Suffer Irreparable Injury By Complying With The District Court’s TRO
Defendant claims that it will suffer irreparable injury absent a stay for two reasons: (1) the TRO interferes with its authority as a correctional administrator, and (2) it will have to expend resources to comply with the TRO. Neither of these constitutes irreparable harm sufficient to justifying staying the TRO.
The defendant cites no authority that supports its claim that interference with its “judgment as a correctional administrator,” Mot. at 7, constitutes irreparable injury. Instead, it points only to cases supporting the general assertion that courts must evaluate the actions of correctional administrators with deference. See id. at 7. But as Defendant’s cited cases acknowledge, even when viewing such actions “through the lens of due deference,” “a court should not rubber stamp or mechanically accept the judgments of prison administrators.” Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir. 2006). Furthermore, “[b]y definition, a temporary
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Case 8:20-cv-01028-PX Document 92 Filed 05/29/20 Page 12 of 16
loss is not irreparable.” Mountain Valley Pipeline, LLC v. 6.56 Acres of Landed, Owned by Sandra Townes Powell, 915 F.3d 197, 218 (4th Cir. 2019).
Defendant’s temporary loss of unrestrained discretion to supervise the Jail as Defendant sees fit is definitionally not irreparable. If Defendant were correct that any temporary interference with its “prerogative,” Mot. at 8, constituted irreparable injury, it would effectively insulate any correctional administrator from any preliminary order. But that is not the law. The general principle of deference to correctional administrators does not preclude narrowly drawn, temporary, preliminary relief when the defendant “significantly undertested the population of COVID-19 symptomatic detainees,” had “no plan to secure more [COVID-19] tests,” had “no plan of any kind for the high-risk detainees,” and oversaw medical personnel who “lack a basic understanding of COVID-19” and whose “dereliction was patent.” Mem. Op. at 6-7, 11, 13.
Defendant’s claim that it must expend resources to comply with the TRO similarly fails to rise to the level of irreparable injury. “Mere injuries, however substantial, in the terms of money, time and energy necessarily expended in the absence of a stay are not enough” to demonstrate the requisite irreparable harm. Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)). Defendant may press its argument that Plaintiffs are not “needlessly suffering for lack of a plan,” Mot. 8, at the imminent hearing. But, given this Court’s findings that Defendant’s lack of a plan was and continues to present a risk of irreparable harm to Plaintiffs—including a risk that Plaintiffs could die—a narrowly tailored order to develop basic plans addressing these risks will not irreparably harm it.
D. Plaintiffs Will Be Substantially Injured By A Stay Of The District Court’s TRO
Defendant is not entitled to a stay pending appeal because Plaintiffs will be substantially injured by the issuance of the stay. See Nken, 556 U.S. at 426; see also McFarland v. Capital
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Case 8:20-cv-01028-PX Document 92 Filed 05/29/20 Page 13 of 16
One, N.A., 2019 WL 5079777, at *3 (D. Md. 2019). The risk of substantial injury is not speculative. Numerous courts—including this one—have already held that the risk of exposure to COVID-19 is imminent, grave, and a substantial harm that warrants relief. See Cameron v. Bouchard, No. 2:20-cv-1469 (6th Cir. May 26, 2020); Coronel v. Decker, No. 20-cv-2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Basank v. Decker, No. 20-cv-2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); Calderon Jimenez v. Wolf, No. 18-cv-10225 (D. Mass. Mar. 26, 2020) (Appendix A).
Defendant argues that Plaintiffs do not face a risk of substantial injury because no detainee has required hospitalization, and any “claims of symptoms [from inmates] . . ., if believed, could be attributed to a number of illnesses.” Mot. at 4, 8. Not only is this argument flawed, but it is a callous disregard of calls for care by inmates in the Jail. “It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” Helling v. McKinney, 509 U.S. 25, 33 (1993). The Courts of Appeals have recognized “that a remedy for unsafe conditions need not await a tragic event.” Cameron v. Bouchard, No. 20-1469 (6th Cir. May 23, 2020) (quoting Helling, 509 U.S. at 25). Staying the injunction will expose the class members and the wider community to risk of infection and even death.
E. The Public Interest Will Not Be Served By Granting The Stay The public interest weighs against a stay and in favor of rapidly resolving this dispute. Defendant has put forward no arguments on this front. See Combs v. FV–1, Inc., No. MJG–13– 3734, 2013 WL 6662729, at *2 (D. Md. Dec. 16, 2013) (The district court and other courts in this circuit have held that a “[movant] must satisfy each element [of a motion to stay] for relief.”).
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Case 8:20-cv-01028-PX Document 92 Filed 05/29/20 Page 14 of 16
This Court has already explained the significant public interest in maintaining this TRO: “Every detainee, and every staff member, is loved by someone on the outside, the members of our larger community.” Mem. Op. at 29. Furthermore, “[m]inimizing risk to the detainees suffering from COVID-19 indisputably remains as high a priority as minimizing the risk for the state and country as a whole.” Mem. Op. at 29. And, because corrections staff enter and leave the jail every day, efforts to minimize the spread of COVID-19 at the Jail advances the public interest by reducing the chance of community spread in Prince George’s County. See Order, Cameron, No. 2:20-cv-1469 (“The public has a strong interest in . . . reducing the transmission of COVID-19.”); Thakker v. Doll, 2020 WL 1671563, at *9 (M.D. Pa. Mar. 31, 2020) (“Efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest.”). This Court also acknowledged that the public reaps the broader collateral benefits, such as conserving healthcare resources. Mem. Op. at 29.
Finally, courts routinely find that a stay is against the public interest where, as here, the moving party has little to no chance of success on the merits. See Ebin v. Kangadis Food Inc., 297 F.R.D. 561, 572 (S.D.N.Y. 2014) reconsideration denied, No. 13 CIV. 2311 JSR, 2014 WL 1301857 (S.D.N.Y. Mar. 19, 2014) (“[C]ourts tend to find that a stay is against the public interest where the moving party has not shown a sufficient likelihood of success on the merits.”) (internal citation omitted).
F. Defendant’s New Monell Argument Is Impermissible Defendant raises a new argument in its Motion for a Stay Pending Appeal arguing that “Plaintiffs fail[ed] to properly plead a Monell claim against the County” in seeking relief under Section 1983. Mot. at 9-10. This new argument was not raised by Defendant prior to the Court’s issuance of the TRO and must first be presented to the Court in a motion for
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Case 8:20-cv-01028-PX Document 92 Filed 05/29/20 Page 15 of 16
reconsideration subject to the limitations of Rule 60, not in a motion for a stay pending appeal.5 Accordingly, no stay may issue on this grounds as this claim will not be properly before the Fourth Circuit. See United States v. Banisadr Bldg. Joint Venture, 65 F.3d 374, 379 (4th Cir. 1995) (providing that new objections may not be raised for the first time on appeal).
Nevertheless, for the sake of completeness, Plaintiffs note that the argument is meritless. Monell merely requires that for Section 1983 claims that “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers,” or that the action is alleged to remedy “constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body's official decisionmaking channels.” Monell v. Department of Social Servs. of City of N.Y., 436 U.S. 658, 690-691 (1978). Plaintiffs have more than adequately pled and shown that Defendant’s unconstitutional acts in response to COVID-19 are consistent with Monell’s requirements. Because these arguments mirror the arguments made supra at 4-11 explaining why Defendant is not likely to succeed on the merits on appeal, Plaintiffs do not reiterate them here.
III. CONCLUSION For the foregoing reasons, Defendant is not entitled to a stay pending appeal and
Plaintiffs respectfully request that this Court deny Defendant’s Emergency Motion to Stay Pending Appeal (ECF No. 90).
5 Plaintiffs do not concede that Defendant could raise this new argument in a motion to reconsider and would oppose consideration of this new argument. See Wooten v. Commonwealth of Va., 168 F. Supp. 3d 890, 893 (W.D. Va. 2016) (“In sum, ‘a party who fails to present his strongest case in the first instance generally has no right to raise new theories or arguments in a motion to reconsider.’”). Plaintiffs merely intend to note that a motion for a stay pending appeal is an improper place to raise a new argument.
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Case 8:20-cv-01028-PX Document 92 Filed 05/29/20 Page 16 of 16

05/29/2020

By: /s/ Edward Williams Edward Williams (Bar No. 20944) Cadene Russell Brooks (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 ed.williams@wilmerhale.com Phone: (202) 663-6487
Elizabeth Rossi (Bar No. 19616) Katherine Chamblee-Ryan (pro hac vice) Olevia Boykin (pro hac vice) Ryan Downer (pro hac vice) CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Suite 800 Washington, DC 20009 katie@civilrightscorps.org Phone: (610) 931-7715

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 Case 8:20-cv-01028-PX Document 94 Filed 06/03/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

CHAMBERS OF
Paula Xinis
UNITED STATES DISTRICT JUDGE

6500 Cherrywood Lane
Greenbelt, MD 20770 (301) 344-0653

June 03, 2020 Re: 20-1028, Keith Seth, et. al. v. Mary Lou McDonough

LETTER ORDER
Pending before the Court is Defendant’s motion to stay the temporary injunctive relief this Court had ordered in the above-captioned case pending Defendant’s appeal. ECF No. 90. The Court incorporates its findings of fact and conclusions of law set forth in its memorandum opinion and order that granted the challenged relief. ECF Nos. 84, 85. For the following reasons, the motion is denied.
In seeking a stay, Defendant bears the burden of demonstrating (1) that Defendant is likely to succeed on the merits of her appeal; (2) that enforcement of the stay will cause irreparable harm to Defendant; (3) whether the stay will substantially injure the other parties interested in the proceeding; and (4) whether stay is in the public interest. See Nkwn v. Holder, 556 U.S. 418, 433–34 (2009).
As to the first prong, Defendant argues that Defendant will prevail because Plaintiffs have not exhausted administrative remedies under the Prison Litigation Reform Act (PLRA). ECF No. 90 at 3. Defendant makes a halfhearted reference to lack of exhaustion and does not put forward any facts to substantiate her claim. She fails, for example, to address the myriad ways in which, on the current record, exhaustion may be excused based on futility—a very likely outcome given that scores of detainees attested to a hobbled, if not outright broken, grievance procedure. See, e.g., ECF No. 2, Ex. 10 ¶ 24, Ex. 11 ¶ 38, Ex. 14 ¶ 10, Ex. 19 ¶ 11, Ex. 23 ¶ 9, Ex. 24 ¶ 12 (detainees describing how the Facility failed to provide them an opportunity to formally complain about COVID-19-related issues); ECF No. 65-1 at 8 (Court-appointed independent inspector Dr. Franco-Paredes affirming that “[t]here is no existing functioning protocol for inmates to report grievances of recent negative events. It is a major challenge for detainees to report any abuses.”). The Court is thus unpersuaded Defendant’s bare averment constitutes demonstrated likelihood of success in this respect. As for her alternative argument—

Case 8:20-cv-01028-PX Document 94 Filed 06/03/20 Page 2 of 2
likelihood of her success on the merits of the Eighth Amendment claim—Defendant again has failed to marshal any evidence to upset the Court’s previous determination. ECF Nos. 84, 85.1
The motion equally fails as to demonstrable irreparable injury. The Court has ordered narrowly drawn relief that, in large measure, can be summed as follows: make a plan, write it down, show it to the Plaintiffs and Court. This relief can hardly cause irreparable harm to the Defendant. Indeed, one primary contention throughout the proceedings was that Defendant already had such a plan. See, e.g., ECF No. 29 at 8; ECF No. 78 at 3. Defendant has since emphasized to the Court that the newly-documented plan is simply a “continuation” of the Facility’s existing efforts. See ECF No. 88 at 6, 8, 10, 13, 14, 17, 22. In this respect, Defendant’s argument regarding the overly burdensome expenditure of additional resources to memorialize a plan she claims to have crafted already lacks credulity.2
As to the third and fourth prongs, the Court stands by its previous determination as to both irreparable harm to Plaintiffs and the public interest. ECF No. 84. Simply stated, Defendant’s motion for stay is DENIED.
Although informal, this correspondence constitutes an Order of the Court and shall be docketed as such.
Sincerely, /S/ PAULA XINIS United States District Judge
1 Defendant also raises, for the first time, that Plaintiffs failed to plead a Monell claim. ECF No. 90 at 9. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694, (1978). The current record proves otherwise. Plaintiffs have brought a class action against Defendant, contending that the practices, procedures, customs, if not de facto policies, resulted in constitutional injury to the class and subclasses of detainees. The robustly pleaded Complaint, fortified with the sworn declarations of 27 detainees and several experts, combined with the additional evidence marshaled in support of the current restraining order and the report of Dr. FrancoParedes, defeats any late-breaking insufficiency argument.
2 Insofar as the ordered relief constitutes some loss of Defendant’s unrestrained discretion in running the Facility, still no showing has been made that the interim relief characteristic of a temporary restraining order amounts to permanent injury. Cf. Mountain Valley Pipeline, LLC v. 6.56 Acres of Landed, Owned by Sandra Townes Powell, 915 F.3d 197, 218 (4th Cir. 2019) (“By definition, a temporary loss is not irreparable.”)

 Case 8:20-cv-01028-PX Document 95 Filed 06/05/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH SETH, et al Plaintiffs
v. MARY LOU MCDONOUGH
Defendant

: : : :
: Case No. 8:20-cv-01028-PX
: : : :

DEFENDANT’S 14-DAY REPORTING AS MANDATED BY THE COURT’S ORDER OF MAY 21, 2020 Defendant Mary Lou McDonough, in her official capacity as Director of the Prince George’s County Department of Corrections (“Director McDonough”), submits this Response to the Court’s May 21, 2020 Order (ECF 85, the “Order”) granting in part and denying in part Plaintiff’s Motion for a Temporary Restraining Order and Preliminary Injunction (ECF 3-1).1 This Response is meant to provide the submission of information required by the Order’s fourteen (14) day deadline.

1 Director McDonough expressly preserves any and all objections to the Court’s Order and Memorandum Opinion (ECF 84, 85), and nothing in this Response shall be construed as an admission by or a waiver of any objection Director McDonough may have to the Order and Memorandum Opinion. Nothing in this Response shall be construed as an admission of any kind by Director McDonough that the provision of medical care or any other condition of confinement relating to detainees at the Jail is unconstitutional or deficient in any way. Furthermore, nothing in this Response shall be construed as an admission of any kind by Director McDonough that the measures, processes, procedures, and/or policies described and/or referenced in this Response reflect the constitutionally minimum standards of care for detainees at the Jail. In fact, the measures, processes, procedures, and/or policies described and/or referenced in this Response far exceed the minimum standards of care and conditions of confinement required by the United States Constitution.

Case 8:20-cv-01028-PX Document 95 Filed 06/05/20 Page 2 of 7

DIRECTOR MCDONOUGH’S RESPONSE

I.

ITEM #4: COVID-19 TESTING AND ISOLATION SINCE MAY 11, 2020.

A. The Total Number of Tests Administered and the Total Number of Confirmed COVID-19 Positive Detainees to Date.

As of May 26, 2020, 524 inmates, in both pre-trial and post-conviction status, were housed at PGCDOC in all permanent housing units and the Medical Unit.2 Out of 525

inmates, 521 were tested for COVID-19. Four inmates refused to be tested.

Testing of All [Asymptomatic] Inmates in Housing Units as of May 26, 2020

COVID-19 Test Result Positive Negative
Test Refusal (presumed positive)
Pending Results TOTAL

# of Housed Inmates 6
510 4
5 525

The six inmates that tested positive were all asymptomatic.3 After being tested, some inmates

received “inconclusive” results, and were given another COVID-19 test – their results came

back negative. Four inmates’ results are still pending because the lab lost their tests and had

to be re-tested. The four inmates that refused the test were presumed positive and directed to

quarantine in his/her cell within their own unit for fourteen (14) days.

It is important to note that the “average daily population” of the jail and each

individual housing units is calculated at the beginning of each day, but is subject to change.

Inmates are released starting at 8AM and new detainees are brought in throughout the day.

While a housing unit may start with a certain number of inmates at 7AM, the number can

fluctuate throughout the day and be higher or lower by that night.

2 This number does not include any new incoming inmates or “intakes” since May 26, 2020. 3 Two of the inmates that tested positive have since been released.
2

Case 8:20-cv-01028-PX Document 95 Filed 06/05/20 Page 3 of 7
Overall, these results show an infection rate of 1.14% the existing PGCDOC population at the time of testing. To contrast, the infection rate for the community of Prince George’s County, Maryland at the time was 19.4% and 14.2%. [See Exhibit One – Prince George’s County COVID19 Dashboard4]. These low percentages are largely due to Director McDonough’s efforts from the beginning of the pandemic to obtain adequate PPE, medical equipment and cleaning supplies, screening of employees and inmates, ensuring proper and frequent sanitation of housing units and high-traffic areas, lack of movement within the jail, and educating staff and inmates about COVID-19 and social distancing. ECF 29-3, 88. Although many of these efforts took place before the CDC ever issued its guidance for correctional facilities, the measures taken by PGCDOC have met or exceeded those recommendations. ECF 29-3.
In terms of new arrestees, PGCDOC began testing all incoming detainees on May 26, 2020 as well. From May 26-31, 47 new detainees were received by PGCDOC. All but four individuals consented to the test. Of the 19 test results that been received thus far, not a single test has come back positive. In June, 26 new detainees have been received as of the date of this filing. All but five5 individuals consented to the test. No test results have been returned for any new detainees tested in June thus far. Because of the rise of availability in COVID19 testing, labs are backlogged and cannot provide a date as to when results will be provided. In accordance with the procedures previously explained by Director McDonough, all new intakes are quarantined in Initial Housing for 14 days prior to being assigned to a housing
4 Prince George’s County, Maryland, Prince George’s COVID19 Dashboard, https://princegeorges.maps.arcgis.com/apps/MapSeries/index.html?appid=82fa5c47b1f542849ca 6162ab1564453 (last updated June 5, 2020). 5 One of these five individuals has already been released.
3

Case 8:20-cv-01028-PX Document 95 Filed 06/05/20 Page 4 of 7

unit, and now, while awaiting test results. See ECF 29-3 at 16, ECF 88. Even with labs being

inundated with tests to process, PGCDOC’s process ensures that any new potentially infected

detainee will not pose a risk to the existing population at PGCDOC.

As of the date of this filing, the results for the testing of new detainees are as follows:

Testing of All Incoming Detainees or “Intakes” Since May 26, 2020

COVID-19 Test Result Positive Negative
Test Refusal Pending TOTAL

# of New Detainees 0 19 9 45 73

Every inmate and detainee that was tested for COVID-19 received a copy of their test results

from the lab.

B. Each COVID-19 Positive Detainee’s Date of Positive Result, Prior Housing Unit, Date of Transfer to Isolation, and if Applicable, Date of Return To General Population.

Upon receipt of a positive test result, PGCDOC moved each inmate to medical

isolation in accordance with its existing procedure. [See Exhibit Two – COVID-19 Positive

Detainees since May 11, 2020].6 Two inmates that tested positive have since been released

from PGCDOC. All others remain in medical isolation and will be released after fourteen

days.

II. ITEM #5: DIRECTOR MCDONOUGH’S PLAN FOR CONTINUITY OF SUPPLIES.

PGCDOC has a Supply Unit, which is charged with fulfilling each Zone

Commander’s sanitation/personal hygiene orders every Thursday or Friday to ensure extra

supplies are available for as needed and/or in case of emergency for every housing unit. The

6 The copy of Exhibit #2 that has been filed with the Court is redacted, as it contains protected health information. An unredacted copy has been provided to Plaintiffs’ counsel.
4

Case 8:20-cv-01028-PX Document 95 Filed 06/05/20 Page 5 of 7
Supply Unit will deliver each fulfilled order to the appropriate Zone Commander and obtain
the Zone Commander’s signature acknowledging receipt of the items. The Supply Unit
monitors and maintains inventory levels to ensure all sanitation/personal hygiene supplies
are double the average daily population. This responsibility includes ordering and
maintaining PPE supplies such as masks and gloves to be issued and distributed to personnel
and inmate population. The maintenance-level minimum, contingent upon availability, is
calculated to be double the combined average daily population and staff. The Bureau of
Operations’ Executive Assistant will maintain and distribute PPE on a weekly basis. The
inventory/distribution will be provided to the Director, Deputy Directors and Security
Command staff.
The following information relates to the areas outlined in Item #5 of ECF 85.
A. Provision of soap to detainees and adequate cleaning supplies (e.g. Spray-Nine) to housing units Distribution of soap.
a. Provision of soap.
• Regional Processing/Processing Officers will distribute two small soap bars to every arrestee in Regional Processing/Processing for handwashing. Since the average custody time in Regional Processing for an arrestee is approximately 8 hours or less, the two small soaps bars are adequate for handwashing during that time. If the detainee is sent to Processing, they will receive a Hygiene Kit from the Property Unit.
• The Property Unit will issue institutional clothing, bed linens and a Hygiene Kit to every newly committed inmate in Processing. A Hygiene Kit consists of two (2) bars of soap, toothpaste, a toothbrush, and roll-on deodorant.
• The Supply Unit will deliver the following personal hygiene items to all housing units on a weekly basis: large soap bars, toothpaste, and tissues. Each housing officer will sign for receipt of the items. Since April 9, 2020, bars of soap were distributed to inmates free of charge. See also ECF 29-3, McDonough Affidavit.
• The Housing Unit Officer(s) will distribute the personal hygiene items to each inmate and obtain the inmate’s signature to indicate receipt of the personal hygiene items weekly.
5

Case 8:20-cv-01028-PX Document 95 Filed 06/05/20 Page 6 of 7
b. Distribution of cleaning supplies.
• The Supply Unit will deliver the following sanitation/cleaning supplies to all housing units weekly: Spray Nine, bleach spray bottles, sanitation wipes (when available), paper towels, toilet paper, gloves and a gallon of hand-sanitizer (for the officer’s station only). The Housing Unit Officer(s) will sign for receipt of the items.
• These items will be made available for all inmates to access and use during recreation time.
B. Social Distancing Measures.
• PGCDOC installed social distancing signs over inmate telephones in all housing units to ensure inmates are six feet apart when phones are used. Some housing unit telephones were disconnected to promote social distancing. The signs are in both English and Spanish.
• Tape has been placed on dayroom floors in all housing units. These tape markers are six (6) feet apart in the dayroom area of the housing units, so inmates know where to stand when medication is passed. [See Exhibit Three - Photos].
• PGCDOC has posted COVID-19 facts and social distancing flyers on bulletin boards in all housing units and are also provided to every inmate. The flyers describe proper distancing and include the recommended lying position of alternating head to toe so that positioning allows for the least transmission risk possible.
• PGCDOC has also posted information regarding the symptom checks/warning signs that the medical staff will use for daily screenings of the inmate population. [See Exhibit Four - Flyers]. See also ECF 37-15.
C. Provision of Face Masks to Detainees.
• Surgical face masks for all detainees have been provided. A fresh mask will continue to be provided every three to five days (Mondays and Fridays).
• N95 masks are issued to Housing Unit Officers bi-weekly.
• Inmates/detainees are provided instruction on how to properly store masks in a protective bag in between use.
6

Case 8:20-cv-01028-PX Document 95 Filed 06/05/20 Page 7 of 7
D. Deep Cleaning
• A professional contractor will continue to deep clean the facility, to include but not limited to, housing units’ dayroom areas, COVID-19 positive inmate cells, Kitchen/Officer’s Dining Room, Processing areas, Medical Unit, and Reception/Visitor’s area.
• Inmates/detainees will continue to be responsible for cleaning their own cells (except in situations where someone has tested positive for COVID-19).
• Spray-Nine and paper towels will continue to be available to wipe down phones between use. Inmates are responsible for cleaning phones after use.

Filed: 06/05/2020

Respectfully submitted,
RHONDA L. WEAVER COUNTY ATTORNEY
ANDREW J. MURRAY DEPUTY COUNTY ATTORNEY
______________/s/________________ Ann E. Koshy, Fed. Bar No. 19333 Shelley L. Johnson - Fed Bar No. 15853 Associate County Attorneys PRINCE GEORGE’S COUNTY OFFICE OF LAW Wayne K. Curry Administration Building 1301 McCormick Drive, Suite 4100 Largo, MD 20774 Direct: (301) 952-2842 Fax: (301) 952-3071 aekoshy@co.pg.md.us sljohnson@co.pg.md.us

7

Prince George's COVID19 Dashboard Case 8:20-cv-01028-PX Document 95-1 Filed 06/05/20 Page 1 of 3

Page 1 of 1 Exhibit One

Prince George's COVID19 Dashboard

Prince George's County, Maryland

Overview Current Status* Week at a Glance
Tests for Week of 5/17-5/23
9,405

Weekly Trends Testing Hospital Utilization
New Cases for Week of 5/17 - 5/23
1,973

32.1% Change -1.4% Change

7117 Tests Previous Week

2000 Cases Previous Week

Percentage Positive Tests for Week of 5/17 - 5/23
19.4%

Deaths for Week of 5/17 - 5/23
42

ICU Bed Capacity
36.8%

Average Weekly Hospitalized 

COVID Cases for Week of 5/17 -

5/23



169

For 5/24-5/30, an average of 68.0 ICU Beds were available out of a total of current capacity of 185 (includes surge beds)

-6.63% Change
181 Average Hospitalizations Previous Week

Med/Surgery Bed Capacity
55.4%

State Cases by Zip Code

-30.7% Change
28% Positive Tests Previous Week

-34.4% Change
64 Deaths Previous Week

For 5/24-5/30, an average of 493.0 Med/Surg Beds were available out of a total of current capacity of 889 (includes surge beds)

+ −
Esri, HERE, NPS | Esri,…

https://princegeorges.maps.arcgis.com/apps/MapSeries/index.html?appid=82fa5c47b1f542849ca6162ab1564453

Prince George's COVID19 Dashboard Case 8:20-cv-01028-PX Document 95-1 Filed 06/05/20 Page 2 of 3

Page 1 of 1

Prince George's COVID19 Dashboard

Overview Current Status* Week at a Glance
Tests for Week of 5/24 - 5/30

Weekly Trends Testing Hospital Utilization
New Cases for Week of 5/24 - 5/30

ICU Bed Capacity

Prince George's County, Maryland
Average Weekly Hospitalized COVID Cases for Week of 5/24 -
5/30

10,870 1,395 36.8% 169
13.8% Change -29.3% Change
-6.63% Change

9551 Tests Previous Week

1974 Cases Previous Week

Percentage Positive Tests for Week of 5/24 - 5/30

Deaths for Week of 5/24 - 5/30

For 5/24 - 5/30, an average of 68 ICU Beds were available out of a total of current capacity of 185 (includes surge beds)
Med/Surgery Bed Capacity

181 Average Hospitalizations Previous Week State Cases by Zip Code

14.2% 46 55.6%
-25.7% Change 0% Change

19.1% Positive Tests Previous Week

46 Deaths Previous Week

For 5/24 - 5/30, an average of 493 Med/Surg Beds were available out of a total of current capacity of 889 (includes surge beds)

+ −
Esri, HERE, NPS | Esri,…

https://princegeorges.maps.arcgis.com/apps/MapSeries/index.html?appid=82fa5c47b1f542849ca6162ab1564453

Prince George's COVID19 Dashboard Case 8:20-cv-01028-PX Document 95-1 Filed 06/05/20 Page 3 of 3

Page 1 of 1

Prince George's COVID19 Dashboard
Overview Current Status* Week at a Glance Weekly Trends Testing Hospital Utilization Tests per Week, by Date Collected
12,000
10,000

10,870 9,551

8,000 6,000

5,628

6,209

7,119

4,000 2,000

1,226

1,534

1,928

2,692

3,409

3,778

0

2

228

3/1-3/7 3/8-3/14 3/15-3/21 3/22-3/28 3/29-4/4 4/5-4/11 4/12-4/18 4/19-4/25 4/26-5/2 5/3-5/9 5/10-5/16 5/17-5/23 5/24-5/30

Percent of Positive COVID Tests

45%

43.1%

41%

40.5%

40%

38%

37%

35%

33.7%

30%

29.9%

28%

25%

20%

19.1%

15%

13.9%

14.2%

10% 7.4%

5%

0%

0%

3/1-3/7 3/8-3/14 3/15-3/21 3/22-3/28 3/29-4/4 4/5-4/11 4/12-4/18 4/19-4/25 4/26-5/2 5/3-5/9 5/10-5/16 5/17-5/23 5/24-5/30

Tests for Week of 5/24 - 5/30
10,870
13.8% Change

Prince George's County, Maryland


9551 Tests Previous Week



Percentage Positive Tests Week State Cases by Zip Code of 5/24 - 5/30

14.2%
-25.7% Change
19.1% Positive Tests Previous Week

+ −
Esri, HERE, NPS | Es…

https://princegeorges.maps.arcgis.com/apps/MapSeries/index.html?appid=82fa5c47b1f542849ca6162ab1564453

Name
Vasquez, Josue 036750 Watts, Tyshawn 046853 McGee, Harold 219916 Corbette, Eualio 258702 Johnson, Christopher 047214 Richardson, Uhland 004034

Case 8:20-cv-01028-PX Document 95-2 Filed 06/05/20 Page 1 of 1 COVID‐19 Positive Detainees After May 11

Exhibit Two

Positive Date of Test
Result date

5/21/2020 5/20/2020 5/21/2020 5/21/2020 5/21/2020 5/21/2020

5/24/2020 5/22/2020 5/25/2020 5/25/2020 5/25/2020 5/25/2020

Prior Housing Unit
H5 H9 H8 H8 H5 H8

Transfer to Medical Isolation 5/24/2020 5/22/2020 5/25/2020 5/25/2020 5/25/2020 5/25/2020

Return to HU
N/A N/A

Note
Released 5/22/20 Released 5/22/20

Case 8:20-cv-01028-PX Document 95-3 Filed 06/05/20 Page 1 of 1
Exhibit #3

COVID-19 FACTS Case 8:20-cv-01028-PX Document 95-4 Filed 06/05/20 Page 1 of 11
 CATCHING  NO CURE  KEEP SPACE BETWEEN
OTHERS (SOCIAL DISTANCING)  WASH HANDS ALWAYS (20 SEC)  COUGH, RUNNY NOSE, FEVER, SORE THROAT LOSS OF SMELL/TASTE TELL OFFICER OR NURSE TO GO TO MEDICAL UNIT

Exhibit Four

Case 8:20-cv-01028-PX Document 95-4 Filed 06/05/20 Page 2 of 11
WIPE DOWN HANDSET BEFORE/AFTER USE

Case 8:20-cv-01028-PX Document 95-4 Filed 06/05/20 Page 3 of 11
KEEP APART 6 FT FROM ANOTHER TO STOP SPREAD OF COVID-19 WEAR mask when out of cell or escorted anywhere in jail
SLEEP OPPOSITE FROM CELL MATE (HEAD-TO-FOOT OR FOOT-TO-

Healthy practices to Case 8:20-cv-01028-PX Document 95-4 Filed 06/05/20 Page 4 of 11 prevent spread Covid-19
• Wipe phones, cell surfaces (bed rails, ladders, desk, chairs, toilet seats), countertops with diluted bleach or sanitation wipe
• Wash hands often at least for 20 seconds
• Do not touch eyes, nose, or mouth
• Wear surgical mask at all times even in cell if you have cellmate (physician recommended)
• Throw tissue away once used

Case 8:20-cv-01028-PX Document 95-4 Filed 06/05/20 Page 5 of 11
Co-vid 19 SymptomChecks & Testing
 For your wellness and protection daily Covid-19 checks will occur on all PGDOC inmates
 Any inmate reporting signs of the virus should be tested
 Inmate must agree and sign consent form to be tested
 Refusal can happen but must sign consent form
 Refusal will mean a “positive” result and separation will occur for 14 days
 Nurses will conduct the checks

Please report to nurse if you have Case 8:20-cv-01028-PX Document 95-4 Filed 06/05/20 Page 6 of 11 1 or more of the listed symptoms
 Cough  Shortness of breath or difficulty breathing  Fever  Chills  Muscle pain  Sore throat  New loss of taste or smell  Other less common symptoms are nausea,
vomiting, or diarrhea.
Covid-19 Virus

DATOS DE COVID-19 Case 8:20-cv-01028-PX Document 95-4 Filed 06/05/20 Page 7 of 11
 MUY CONTAGIOSO  NO HAY UNA CURA  MANTENER ESPACIO ENTRE OTROS
(DISTANCIAMIENTO SOCIAL- 6 PIES)  LAVARSE LAS MANOS SIEMPRE
POR 20 SEGUNDOS  SI NECESITAS JABÓN, PREGUNTALE
AL OFICIAL  TOS, SECRECIÓN NASAL, FIEBRE,
DOLOR DE GARGANTA, PÉRDIDA
DEL OLFATO/SABOR. DÍGALE AL
OFICIAL INMEDIATAMENTE  NO HABRÁ CARGO POR LLAMADA
DE ENFERMEDAD (SICK CALL)

Case 8:20-cv-01028-PX Document 95-4 Filed 06/05/20 Page 8 of 11
LIMPIE EL TELÉFONO ANTES/DESPUÉS DEL USO

Case 8:20-cv-01028-PX Document 95-4 Filed 06/05/20 Page 9 of 11
DISTANCIAMIENTO SOCIAL 6 PIES DE DISTANCIA
MANTÉNGASE SEPARADO 6 PIES DE OTRO PARA DETENER LA
PROPAGACIÓN DE COVID-19
USE MÁSCARA CUANDO ESTÉ FUERA DE LA CELDA O ESCOLTADO
EN CUALQUIER LUGAR DE LA CÁRCEL
DUERMA A LADO OPUESTO DEL COMPAÑERO DE CELDA
(CABEZA A PIE O PIE A CABEZA)

Prácticas saludables para Case 8:20-cv-01028-PX Document 95-4 Filed 06/05/20 Page 10 of 11 prevenir la propagación de Covid-19
• Limpie teléfonos, superficies de la celda (barandillas de cama, escaleras, escritorio, sillas, asientos de inodoro), encimeras con blanqueador diluido o toallita higiénica
• Lavarse las manos a menudo por lo menos 20 segundos
• No se toque los ojos, la nariz o la boca
• Use máscara quirúrgica en todo momento, incluso en la celda si tiene compañero de celda (recomendado por médico)
• Tire el panuelo desechable a la basura una vez usado

Case 8:20-cv-01028-PX Document 95-4 Filed 06/05/20 Page 11 of 11
COVID-19 SíntomasChequeos & Pruebas
• Para su bienestar y protección se realizarán chequeos diarios de Covid-19 en todos los reclusos de PGDOC
• Cualquier recluso que reporte sintomas del virus debe ser examinado
• El recluso debe aceptar y firmar el formulario de consentimiento para ser examinado
• Puede rechazar pero debe firmar el formulario de consentimiento
• Rechazar significará un resultado “positivo” y la separación ocurrirá por 14 días
• Las enfermeras llevarán a cabo los chequeos
• Sea honesto, es por su bien!

 Case 8:20-cv-01028-PX Document 3 Filed 04/21/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

KEITH SETH, et al., Individually and on behalf of a class of similarly situated persons,
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections,
Defendant-Respondent.

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Case No.

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PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiffs respectfully move this Court for the entry of a temporary restraining order and preliminary injunction. As more fully articulated in the attached memorandum, Defendant’s actions in response to the COVID-19 pandemic have violated their rights under the Eighth and Fourteenth Amendments of the United States Constitution.
Further, a subset of Plaintiffs, all of whom are medically vulnerable persons, petitions this Court for writs of habeas corpus under 28 U.S.C. § 2241.

Respectfully submitted on April 20, 2020,

By s/Elizabeth Rossi Elizabeth Rossi Bar No. 19616 Katherine Chamblee-Ryan application to the Bar of this Court pending Olevia Boykin application forthcoming Ryan Downer application pending

Case 8:20-cv-01028-PX Document 3 Filed 04/21/20 Page 2 of 2

CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Suite 800 Washington, D.C. 20009 katie@civilrightscorps.org 610-931-7715
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on April 21, 2020 I caused the foregoing document to be electronically transmitted to the Clerk’s Office using the CM/ECF System for filing. This Emergency Motion for Temporary Restraining Order and Preliminary Injunction will be served in accordance with the Federal Rules of Civil Procedure.

Date: Apr. 21, 2020

/s/Elizabeth Rossi Elizabeth Rossi

Case 8:20-cv-01028-PX Document 3-1 Filed 04/21/20 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND EASTERN DIVISION

KEITH SETH, et al., Individually and on behalf of a class of similarly situated persons,
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections,
Defendant-Respondent.

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Case No.

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MEMORANDUM IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

Case 8:20-cv-01028-PX Document 3-1 Filed 04/21/20 Page 2 of 37
PRELIMINARY STATEMENT There is currently an uncontrolled outbreak of COVID-19 at the Prince George’s County Jail (“the Jail”). The Jail1 is accelerating this outbreak, creating an unacceptable risk that the people imprisoned there will contract the disease and that those who do will become seriously ill or die.2 It has ignored the guidance of public health officials. For example, the Jail charges money for bars of soap (and limits prisoners to one bar per week); some prisoners trade their meals for it, and some go without it for days at a time. The Jail does not, as public health experts recommend, sanitize common surfaces or enact meaningful social distancing. Those who test positive for the disease fare no better: patients with COVID-19 can decompensate quickly, but the Jail barely monitors COVID-positive prisoners. Instead, it holds them in unsanitary cells where trashbags overflow with spit and vomit because corrections staff are afraid to enter the cell to remove them. The walls of medical isolation cells are covered in feces, mucus, and blood. Prisoners observe sick people everywhere: coughing, shaking, sweating, and struggling to breathe. “I feel like everyone in the unit is catching it,” one said. “[I]t seems like almost everyone is sick.” Ex. 10, Decl. 10 ¶12.3 Medical care is inaccessible, even for those with symptoms of COVID-19. Sick call costs $4, and those who cannot afford it go without medical treatment. Prisoners who do request medical care often wait a week or more before anyone responds.
1 Since Defendant McDonough is being sued in her official capacity, “Defendant McDonough” and “the Jail” are used interchangeably in this motion. 2 The majority of Named Plaintiffs and class members are pretrial detainees, but some are held post-conviction. Plaintiffs seek to certify a class for both categories. 3 The numbered exhibits cited in this memorandum are attached to Plaintiffs’ Complaint. The lettered exhibits are attached to Plaintiffs’ Emergency Motion for a Temporary Restraining Order and Preliminary Injunction.
1

Case 8:20-cv-01028-PX Document 3-1 Filed 04/21/20 Page 3 of 37
Prisoners with COVID-19 symptoms—fever, chills, shortness of breath, diarrhea—who seek medical care are told by the medical staff to return to general housing because they are not sick enough, or because the Medical Unit is full. This happens even to those with medical conditions (like asthma, chronic bronchitis, and HIV) that make them more vulnerable to COVID-19.
Named Plaintiffs and putative class members are already in danger. Six of the Named Plaintiffs have pre-existing conditions that make them especially vulnerable to severe illness and death if they are infected. Five of them have symptoms of COVID-19. They—along with approximately 600 other prisoners—are trapped in a Jail that endangers the sick. Absent this Court’s intervention, many will suffer and some will die.
In addition, although the Jail has refused to adopt basic measures to slow the outbreak within its walls, the Jail refuses to release COVID-positive prisoners until it deems them no longer contagious, even when it has no legal authority to hold them (because, for example, they have paid bail). One prisoner who tested positive for COVID-19 on the same day that he paid his bail was illegally held for fourteen days.
These conditions violate Named Plaintiffs’ and putative class members’ rights under the Eighth and Fourteenth Amendments to the U.S. Constitution. They seek emergency relief under 42 U.S.C. § 1983 to bring the Jail’s conditions in line with basic public health standards. Plaintiffs also ask this Court under § 1983 to enjoin Defendants McDonough from illegally detaining COVIDpositive prisoners. In addition, a subclass of medically vulnerable prisoners (the “Medically Vulnerable Subclass) ask this Court to release them under 28 U.S.C. § 2241 because the Jail is too dangerous for them to remain there.
2

Case 8:20-cv-01028-PX Document 3-1 Filed 04/21/20 Page 4 of 37
STATEMENT OF FACTS I. There Is a Current COVID-19 Outbreak at the Prince George’s County Jail There is an ongoing outbreak of COVID-19 at the Prince George’s County Jail (“the Jail”).4 As many as 77 prisoners may have confirmed cases. Compl. ¶ 77. According to Dr. Jaimie Meyer, an infectious disease expert and assistant professor at Yale Medical School, this is likely “a gross underestimate by at least three-fold.” Ex. 30,5 Meyer Decl. ¶ 41.6 If Dr. Meyer is correct, then COVID-19 has already infected nearly half of the Jail’s approximately 600 prisoners. COVID-19 is highly infectious. Compl. ¶¶ 27-29. Up to sixteen percent of those who contract it will suffer severe illness. Ex. 30, Meyer Decl. ¶ 9. In the United States, the mortality rate is 3.2 percent. Ex. 32, Benninger Decl. ¶ 2(G). Twenty percent of those who contract COVID-19 will need hospitalization, and five percent will need intensive care. Id. ¶ 2(F). Those who survive may suffer long-term damage to the heart, liver, and lungs. Compl. ¶ 34. Certain preexisting conditions—including asthma, chronic lung disease (like bronchitis), heart disease, and diabetes intensify the risk of severe illness and death. Id. ¶ 35. The Prince George’s County Department of Corrections reported its first case of COVID-19 on March, 30, 2020. Compl. ¶ 68. In an interview with the Washington Post, Defendant DOC Director Mary Lou McDonough said she was certain that more would follow. “I expect we’ll have
4 The Jail is also sometimes referred to as the “Prince George’s County Detention Center” or the “Upper Marlboro Detention Center.” 5 All exhibits referenced in this motion are attached to the Complaint. 6 Expert declarations are included from Dr. Meyer, as well as Dr. Kristen Benninger, a hospitalist who is currently treating patients for COVID-19 and has experience as a prison physician, and Dr. Craig Haney, a psychology professor and expert in prison isolation. See Ex. 30 (Meyer Declaration); Ex. 31 (Meyer Curriculum Vitae); Ex. 32 (Benninger Declaration); Ex. 33 (Benninger Curriculum Vitae); Ex. 34 (Haney Declaration); Ex. 35(Haney Curriculum Vitae). Each expert assessed the conditions at the Jail based on multiple prisoners’ declarations, which are also included as exhibits to the Complaint. Exs. 1–27.
3

Case 8:20-cv-01028-PX Document 3-1 Filed 04/21/20 Page 5 of 37
more before this is over,” McDonough said, comparing jails to “cruise ships without the views or the amenities.” Id. ¶ 69. “A jail is a pretty transitory place,” she continued. “People are close together. You’re all breathing the same air.” Id. ¶ 69. Four days later, on April 3, three prisoners and a corrections officer tested positive for COVID-19. Id. ¶ 71.
The DOC has not since disclosed the number of COVID-19 cases at the Prince George’s County Jail. But the people imprisoned there have observed its spread. Plaintiffs are aware of cases in at least half of the Jail’s ten adult housing units. Id. ¶ 76. Every day, prisoners see evidence of illness: people sick and coughing, or reporting to medical and not coming back. Id. ¶ 76 n. 52; id. ¶ 130 n. 75. One prisoner said, “I have told my family that I love them because I feel sure I am going to get the virus in here.” Ex. 17, Decl. 17 ¶ 7.
II. The Jail Has Failed to Adopt Measures to Prevent the Spread of COVID-19. A. The Jail Disregards the CDC’s Guidance on Containing COVID-19.
In jails and prisons, COVID-19 is both more likely to spread and more likely to result in severe illness and death when it does. See Ex. 30, Meyer Decl. ¶¶ 13–24; Ex. 32, Benninger Decl. ¶ 3; Compl. ¶ 59-67. Recognizing this risk, on March 23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) issued guidance for correctional facilities to “reduce the risk of transmission and severe disease from COVID-19.” See Ex. 36, U.S. Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (March 23, 2020), at 2. This guidance includes “detailed recommendations” about preventing transmission, including hygiene and cleaning practices, social distancing, evaluating symptoms, and the use of medical isolation and quarantine.
The Jail has disregarded nearly all of the CDC’s recommendations. Prisoners do not have liquid soap, which the CDC states should be provided to them at no cost. Ex. 36, CDC at 10; but see
4

Case 8:20-cv-01028-PX Document 3-1 Filed 04/21/20 Page 6 of 37
Compl. ¶ 84. The jail charges money for bars of soap, and it only allows prisoners one bar each week. Id. ¶ 85. Prisoners who cannot afford it have no soap at all, although some trade their food to get it. Id. ¶ 86. Jail staff do not regularly clean or sanitize shared amenities or surfaces, including the phones inmates must use to call their families and lawyers. Id. ¶ 87-88; but see Ex. 36, CDC at 9 (stating that jail staff should “clean and disinfect surfaces and objects that are frequently touched in common areas several times each day.”).7
The CDC recommends that corrections facilities “[c]reate and test communications plans to disseminate critical information to incarcerated/detained persons, staff, etc. as the pandemic progresses.” Ex. 36, CDC at 5. But the jail has not provided prisoners with information about COVID-19, its symptoms, or how to protect themselves from it. Compl. ¶ 81.
In the general population housing units, the jail has not enacted (or explained) effective social distancing measures, which require “increasing the space between individuals,” ideally by at least six feet, and decreasing the frequency of contact between them. Ex. 36, CDC at 4. Prisoners are deprived of the opportunity to socially distance—regularly remaining less than six feet apart from their cellmates, prisoners in other cells, prisoners using phones, and guards taking the count. Compl. ¶¶ 93-96. Since jail staff has not informed prisoners about what social distancing entails, many have no idea that they should be keeping their distance from one another. Plaintiff Keith Seth, upon learning about the recommended six feet of distancing from his attorney, realized that he had been within a foot of a sick prisoner earlier that day:
“Earlier today the person in the cell next to me had to go to the medical unit because he was sneezing, shaking, and sweating. I was just talking to him yesterday, and when I was talking with him I was within a foot of him. I did not know that I was being unsafe in talking to him so closely because I have not been told by anybody
7 See Ex. 30, Meyer Decl. ¶ 29 (“Inconsistent access to hygiene and disinfection measures will result in widespread infection throughout the facility.”).
5

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to stay away from other inmates. The only information I received is to stay six feet away from the officer’s desk. Ex. 1, Seth Decl. ¶ 9. The Jail’s limited attempts at social distancing measures are markedly careless: the Jail has staggered prisoners’ recreation in groups of 10, but the same group of prisoners does not always take recreation together each day. Compl. ¶ 99. Thus, infected prisoners can infect a new set of other prisoners at recreation each day, and then those prisoners can infect still more. Id. ¶ 100; see Ex. 30, Meyer Decl. ¶ 30 (noting that while staggered recreation can be an effective social distancing strategy, it is “not useful to prevent the spread of disease if recreation is staggered with different individuals each day (i.e. different groups of 10).”). When prisoners show symptoms of COVID-19, Jail staff do not (as the CDC recommends) place them in medical isolation. See Ex. 36, CDC Guidance at 10 (“As soon as an individual shows symptoms of COVID-19, they . . . should be immediately placed under medical isolation in a separate environment from other individuals”).8 Instead, once seen by medical staff, symptomatic prisoners are often sent back to their cells in general housing, where they will inevitably infect others. Prisoners have visited the medical unit with fevers, shortness of breath, coughing, chills, headaches, and fluid in the chest, and medical staff have sent them back to their housing units with Claritin9 or Tylenol. Compl. ¶¶ 101-03. Some prisoners—including those who later tested positive for COVID-19—have been sent back and forth between the medical unit and general housing as often as four or five times. Id. ¶¶ 105-17; but see Ex. 36, CDC Guidance at 15 (“Keep the
8 Ex. 30, Meyer Decl. ¶ 27 (“One of the most critical infection control measures in correctional settings is to accurately identify people who are ill and medically isolate them from the general population.”). 9 Ex. 30, Meyer Decl. ¶ 31 (observing that “prisoners [at the Jail] are given Claritin – a decongestant that is entirely useless for COVID-19”).
6

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[symptomatic] individual’s movement outside the medical isolation space to an absolute minimum.”).
In early April, the jail began twice daily temperature checks for prisoners. Id. ¶ 122. But the checks are not conducted in every housing unit. Id. And as implemented, even this practice is an opportunity for infection. The temperature reader is not cleaned between uses, and the medical staff do not change their gloves. Id.10 Even when prisoners do have a fever, jail staff may fail to quarantine them. Compl. ¶¶ 124-26. One prisoner, who suffers from high blood pressure and seizures, was told to remain in general housing despite having a fever. Ex. 11, Decl. 11 ¶¶ 9–10. By early evening, he “started to have real difficulty breathing.” Id. But he was told to wait for the next temperature check at 9:00 pm. Id. By then, his temperature was 104 degrees. Id. He later tested positive for COVID-19. Id. ¶ 2.
When a prisoner tests positive for COVID-19, the CDC recommends that every person who has been within six feet of that prisoner be placed in quarantine for fourteen days. Ex. 36, CDC at 14. But the jail has failed even to inform prisoners who have had close contact with a positive case—even when the infected person was the prisoner’s cellmate. Compl. ¶ 129. Nor do they disinfect cells where COVID-positive prisoners have lived. Id. ¶ 130.
B. The Limited Containment Methods Adopted by the Jail Are Ineffective and Counterproductive.
Instead of implementing the CDC’s recommendations to prevent COVID-19, the Jail has resorted to methods of its own. Its principle strategy has been to implement a universal, preemptive
10 Ex. 23, Benninger Decl. ¶ 2(E) (“When performing temperature checks on multiple individuals, a clean pair of gloves should be used for each individual and the thermometer should be thoroughly cleaned between each check.”); Ex. 30, Meyer Decl. ¶ 27(b) (“[T]here is high likelihood that nurses’ gloves, thermometer covers, and door slots are contaminated and can themselves be a vehicle for transmission from person to person.”).
7

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lockdown of all prisoners. Compl. ¶ 132. Prisoners are confined to their cells 23 hours per day. Id.
¶ 133. They have one hour of out-of-cell time. Id. ¶ 134. This hour (which may be at 1:30 am or
some other odd hour) is prisoners’ only chance to shower, go outside, or use the phones to call
their attorneys or their families (if they are awake). Id.; see Ex. 7, John Doe No. 4 Decl. ¶ 14 (“You
can’t really talk to your family at 1 o’clock in the morning, my kids are asleep.”). The lockdown
appears to have no end date short of the pandemic’s end. Compl. ¶ 136.
The CDC does not recommend preemptive lockdowns.11 Rather, it recommends that housing
units “quarantine in place” when there is “contact with a case from the same housing unit” and
that all quarantines—including this sort—last for just 14 days. Ex. 36, CDC at 19. Public health
experts warn that preemptive lockdowns like that at Prince George’s County Jail are both
ineffective and counterproductive at preventing the virus’s spread. Instead, consistent with the
CDC Guidance, these experts recommend that lockdowns be time-limited and used only as
necessary for quarantine or contact tracing.12
11 Instead, the CDC’s social distancing guidance includes suggestions like “[r]earranging seating in the dining hall so that there is more space between individuals,” and “[c]onsider[ing] alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out.” Ex. 36, CDC at 11. 12 Ex. 30 , Meyer Decl. ¶ 30 (“Lockdown can be important from a public health standpoint to enable social distancing during a pandemic but should be used only as a last resort and in a timelimited way (CDC recommends quarantines last no longer than 14 days) that is communicated clearly to the residents”); David Cloud, Dallas Augustine, Cyrus Ahalt and Brie Williams, The Ethical Use of Medical Isolation—Not Solitary Confinement—to Reduce COVID-19 Transmission in Correctional Settings, Amend 3 (Apr. 9, 2020), available at https://amend.us/wpcontent/uploads/2020/04/Medical-Isolation-vs-Solitary_Amend.pdf [hereinafter “Medical Isolation—Not Solitary”] (“Corrections officials should only require people on an entire housing unit to stay in their cells (“Lockdown”) if medical professionals determine a symptomatic persons resides or works on that unit or contract tracing flags a confirmed or suspected case. In this event, time-limitations must be clearly communicated to residents and staff.”); Ex. 34, Haney Decl. ¶ 29 (“[T]he Jail should institute … lockdowns only where medically necessary to resolve discrete issues, such as sanitizing dorms or contact tracing of an infected prisoner. If the [Jail] resorts to these lockdowns, it should do so in a reasonably time-limited manner and communicate that timelimit to the prisoners who are affected.”).
8

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Indeed, on lockdown, as a structural matter, opportunities for infection abound. Most prisoners live with cellmates in poorly ventilated cells. Id. ¶ 143. Even prisoners in different cells are less than six feet apart. Id. Thus, perversely, the lockdown policy—especially in combination with the jail’s failure to medically isolate those with symptoms of COVID-19—traps prisoners in close proximity to people who may be sick. Id. ¶ 144; see Ex. 36, CDC at 19 (warning that quarantining prisoners together “could transmit COVID-19 from those who are infected to those who are uninfected.”); Ex. 30, Meyer Decl. ¶ 30 (stating that sustained lockdowns are “particularly problematic when inmates are locked down in poorly ventilated spaces that are shared closely with others, which may contribute to disease transmission from people who are infected with COVID19 but have not yet developed or reported symptoms.”).
For example, Plaintiff John Doe No. 2, who has severe asthma for which he has previously been hospitalized, is locked down with his cellmate, who has lost his sense of smell and taste (a symptom of COVID-19). Compl. ¶ 145; see also, e.g. Ex. 17, Decl. 17 ¶ 6 (“My cellmate has been coughing and sneezing. They have us locked in 23 hours a day. . . . There is no way for my cellmate and I to distance ourselves from each other.”); Ex. 7, John Doe No. 4 Decl. ¶ 14 (“[I]t’s really bad when you can’t get come out of a cell for 23 hours I’m really scared now because my cellie has been sick.”).
The Jail’s preemptive lockdown is counter-productive in other ways as well. Because prisoners’ one hour of out-of-cell time is their only chance to call their attorneys and families, they congregate by the phones (which are rarely, if ever, cleaned).13 Id. ¶ 146. The lockdown also
13 Ex. 30, Meyer Decl. ¶ 30 (observing that under the Jail’s preemptive lockdown policy, “[w]ith only 1 hour per day to use phones, it may be hard to enforce social distancing since prisoners need to congregate to use this precious resource”); Ex. 34, Haney Decl. ¶ 16 (“During th[e] limited one hour of out-of-cell time [under the Jail’s preemptive lockdown policy], prisoners crowd together
9

Case 8:20-cv-01028-PX Document 3-1 Filed 04/21/20 Page 11 of 37
“decreases the interactions that prisoners have with correctional and healthcare staff members, compromising the latter’s ability to identify symptoms,” further ensuring that infected prisoners will remain in general population where they can spread the virus. Ex. 34, Haney Decl. ¶ 25.14
III. The Jail’s Conditions Increase the Risk of Severe Illness and Death. The conditions at the Prince George’s County Jail not only amplify the risk of infection. They also greatly increase the risk that prisoners who are infected with COVID-19 will suffer serious illness, permanent physical damage, and death. Prisoners whom the Jail decides to test for COVID-1915 are moved to Medical Unit’s isolation cells, where they remain for two to five days, awaiting their test results. Compl. ¶ 167. The walls of the cells are covered in feces, mucus, and blood. Id. Prisoners there are not allowed to shower. Id. ¶ 170. They cannot change their clothes, even when they are soaked in sweat. Id. They are often denied soap and a toothbrush. Id. They have no access to phones, so they cannot contact their families or their attorneys. Id. ¶ 171. Once a prisoner tests positive for COVID-19, he is moved into a 10-man cohorted isolation16 cell for COVID-positive prisoners in the Medical Unit or to a isolation cell in Housing Unit 6 (H-
to use the limited shared resources. . . . As a result, they are unable to maintain the recommended six feet of social distancing.”). 14 See Medical Isolation—Not Solitary, supra note 12, at 2 (warning that “preemptively placing entire units on ‘lockdown’ for indefinite amounts of time” will likely mean that “interactions with correctional staff an healthcare staff often become less frequent and people with symptoms may go undetected”). 15 As described above, this does not include every prisoner with symptoms of the virus; many symptomatic prisoners are not medically isolated or even evaluated by medical staff, let alone tested. See supra at 6–7. 16 “Cohorted isolation” is the practice of medically isolating prisoners with symptoms or confirmed cases of COVID-19 together. The CDC recommends that cohorting “should only be practiced if there are no other options.” Ex. 36, CDC at 19.
10

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6). Id. ¶ 174. The 10-man cell is filthy. Id. ¶ 175. For fear of contracting COVID-19, corrections
officers will not remove the overflowing trash bags, which are filled with vomit and spit. Id. Sick
prisoners—who may be vomiting, sweating, and have diarrhea and high fevers—lack access to
basic hygiene products. Id. ¶ 177. Many do not have soap. Id. Some have not had toothbrushes for
over a week. Id. They are still not allowed to shower (which means that some go without bathing
for more than two weeks). Id. All of the sick men share a single, mildewed sink. Id. Prisoners may
go five or six days without being able to change their clothes or underwear. Id.
These conditions have consequences. As Dr. Meyer explains,
“Medical isolation units should be hygienic and safe . . . . In contrast, the prisoners describe unsafe isolation cells, at times without staff present inside the housing unit, and filthy living conditions, including dried blood and feces on the walls and floors of isolation cells. Some describe not having access to clean sheets and one described having to pull his used sheets out of a red biohazard bag for reuse. These conditions are not only inhumane but also unhealthy. In addition to spread of COVID-19, people in these medical isolation units are therefore at risk of exposure to other diseases, including HIV and Hepatitis C.”
Ex. 30, Meyer Decl. ¶ 33.17
Moreover, medical and mental health experts warn that punitive isolation conditions can cause
prisoners to downplay their symptoms to avoid them.18 At the Prince George’s County Jail,
17 See Ex. 32, Benninger Decl. ¶ 3 (observing that the isolation cells “are not in accordance with recommended hygiene and sanitation standards, as prisoners report they have a significant amount of body fluids on the walls, including ‘mucous, feces, blood, old food, urine, spit’, ‘around the walls, 360 degrees’”); Id. ¶ 3(D) (“Body fluids should absolutely be cleaned from any surfaces.”). 18 Ex. 30, Meyer Decl. ¶ 31 (“The[] conditions [in the isolation units] deter other individuals from reporting symptoms for fear they may end up in isolation.”); Ex. 34, Haney Decl. ¶ 25 (“[T]he even more onerous conditions that the Prince George’s County Jail imposes on prisoners who are placed in medical isolation likely serve as a disincentive for inmates to report their own symptoms. Prisoners understandably do not want to be placed in insect-infested, dirty cells where they will spend two weeks without access to telephones or showers.”); Medical Isolation—Not Solitary, supra note 12, at 2 (“Fear of being placed in solitary will deter people from reporting symptoms to correctional staff. Experts and advocates are deeply concerned that incarcerated people, many of whom will go to great pains to avoid solitary confinement . . . will not come forward with symptoms of COVID-19 because they do not want to be placed in such conditions.”).
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prisoners regularly do this. Compl. ¶ 169; Ex. 12, Decl. 12 ¶14 (stating that many prisoners are “more afraid of how they’ll be treated in the medical unit than they are of their symptoms.”). This “result[s] in their increased risk of severe disease and death and ongoing spread to others.” Ex. 30, Meyer ¶ 19; see Medical Isolation—Not Solitary, supra note 12, at 2 (“Th[e] avoidance of reporting symptoms of illness [to avoid punitive isolation conditions] will not only accelerate the spread of infection within facilities, but also increase the likelihood of prisoner deaths due to lack of treatment.”).19
The Jail also provides inadequate medical monitoring of sick prisoners in isolation. People in medical isolation for suspected COVID-19 should be “diligently monitored for clinical worsening.” Ex. 30, Meyer ¶ 32. This is necessary because “[p]rogression of respiratory symptoms in COVID-19 can be extremely rapid.” Id.; see Ex. 32, Benninger Decl. ¶ 2(F) (“[P]ersons infected with COVID-19 have the ability to rapidly decompensate from a respiratory standpoint once showing symptoms, sometimes requiring mechanical ventilation at an emergent pace.”).
But prisoners in the medical isolation cells and cohorted isolation are barely monitored at all. Contact with medical staff (or any other staff) is limited to a nurse that briefly visits approximately three times each day to take temperatures, give medications, and deliver food. Compl. ¶ 172.20 The prisoners in these cells do not know how they would get help in a medical emergency. Id.; see Ex.
19 To avoid deterring prisoners from reporting their symptoms, experts recommend that medical isolation not replicate the punitive conditions of disciplinary solitary confinement. For example, prisoners in isolation should have free access to reading material, outdoor exercise, and phones. See Medical Isolation—Not Solitary, supra note 12, at 2, 4; see Ex. 34, Haney Decl. ¶ 30. 20 See Ex 30, Meyer Decl. ¶ 32 ([T]he prisoners’ declarations in the Prince George’s County Jail describe a lack of medical attention that is highly concerning and suggests that medical staff do not have the necessary staffing, training, or resources to identify when people require hospitalization.”); see also id. ¶ 19 (“[I]solation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death.”).
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12, Decl. 12 ¶ 9 (stating that, in the isolation cells, “there was no way for us to notify someone if we were having an emergency, except to get up and bang on the door and hope that someone could hear you”). In H-6, cells are equipped with buzzers, but they do not always seem to work. Id. ¶ 180-81. A prisoner who is isolated for COVID-19 in H-6 said:
“I have a seizure disease. If I were to have a seizure, I wouldn’t be able to push the button. No COs are in the housing unit, so no one would hear what was going on. I’m afraid that if I have a seizure in here, no one will hear it and I will die. . . . They’re not really doing anything to protect any of us in here.” Ex. 9, Decl. 9 ¶¶ 31–32. Sick prisoners who remain in general population (there are many) also lack access to adequate medical care. Requesting medical attention (“sick call”) costs $4, which some cannot afford. Compl. ¶ 150. Some housing units have run out of sick call slips entirely. Id. Prisoners who make a sick call may wait a week or more before they are seen. Id. ¶ 157.21 Jail staff have told prisoners that medical care is reserved for emergencies and that the Medical Unit is full. Id. ¶ 156; Ex. 5, John Doe No. 2 Decl. ¶ 20 (“I told them that I needed medical attention [for COVID-19 symptoms], and they said there aren’t enough beds in medical, it’s full over there.”). Prisoners—including those with pre-existing conditions that increase their risk of complications and death—routinely visit the medical unit with clear symptoms of COVID-19 and are told to return to their housing units. Id. ¶¶ 103-18. In one representative example, a prisoner with HIV made a sick call because he had a fever, body pain, a cough, and a sore throat. Ex. 26, Decl. 26 ¶ 4. Medical staff did not see him until ten days later; they then told the prisoner that his case “was not serious enough to have additional care,” and that “the Medical Unit is only seeing
21 Ex. 32, Benninger Decl. ¶ 3(F) (“In the setting of COVID-19, delays in medical care can cost inmates their lives as we have seen relatively rapid respiratory decompensation in patients.”).
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emergencies.” Id. ¶¶ 4–6. These barriers to medical care further increase the risk that prisoners infected with COVID-19 will become severely ill and die.22
The cost of sick call and the Medical Unit’s reputation for not assisting prisoners with symptoms of COVID-19 has led some high-risk, symptomatic prisoners to forego care. Compl. ¶¶ 149-53. For example, Plaintiff Seth, who has chronic bronchitis for which he was hospitalized last year, has had symptoms of COVID-19 since late March. Ex. 1, Seth Decl. ¶ 9. He is currently coughing up mucus and has shortness of breath. Id. ¶ 9. He recently had diarrhea, and he has lost his sense of smell and taste. Id. ¶ 10. On April 17, he woke up with a nosebleed.23 Id. ¶ 9. But Mr. Seth has not made a sick call because he does not have the $4 to pay for it. Id. ¶ 10. He has also heard that the Medical Unit will not do anything to help: “I know one guy who had a fever and they kept him for three days and sent him back. Another guy I know lost his sense of taste and his stomach hurt, but medical sent him back.” Id. ¶ 11.
Medical care for anything other than COVID-19—including underlying health conditions like asthma and bronchitis—has stalled or stopped. Jail staff has told prisoners that they cannot receive medical care because the Medical Unit is locked down. Id. ¶ 158. Prisoners who have made sick calls that were not about COVID-19 have been told by corrections officers “that if it’s nothing relating to Corona not to write to medical.” Id. ¶ 159. And many prisoners have been unable to obtain or change their medications—including prisoners with pre-existing conditions like asthma. Id. ¶ 161. As Dr. Meyer warns: “Failure to provide individuals adequate medical care for their
22 Ex. 30, Meyer Decl. ¶ 32 (stating that the barriers to adequate care in the Jail, including the cost of sick call and delayed care, “may result in preventable deaths and undue harm”). 23 Nosebleeds may be “signs of complicated COVID-19 disease.” Ex 30, Meyer Decl. ¶ 32.
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underlying chronic health conditions results in increased risk of COVID-19 infection and increased
risk of infection-related morbidity and mortality if they do become infected.” Ex. 30 ¶ 35.
Prisoners’ mental health is also at great risk. Dr. Craig Haney, a psychologist and expert on
prison isolation, has concluded that the punitive isolation methods that dominate the Jail’s
approach to COVID-19 “greatly increase the psychological stress under which prisoners live,
potentially leading to mental and physical deterioration, interpersonal conflicts, and self-harm and
suicidality.” Ex. 34, Haney Decl. ¶ 20.24 As Dr. Haney explains, “The Prince George’s County Jail
lockdown units are now being used in ways that are essentially identical to the solitary
confinement-type housing that has been shown to place prisoners at significant risk of grave harm
(including damage that is permanent, even fatal).” Ex. 34, Haney Decl. ¶ 21.25 Moreover, the Jail
has discontinued mental health services.26 This places prisoners with mental illness who are
isolated “at grave risk of decompensation.” Ex. 34, Haney Decl. ¶ 24.27 These policies also threaten
24 See also Medical Isolation—Not Solitary, supra note 12, at 3 (“Research shows that keeping people socially isolated in a closed cell without a meaningful opportunity to communicate with family, friends, and loved ones or to participate in exercise, education, and rehabilitative programming (solitary confinement) causes immense, and often irreparable, psychological harm.”); Ex. 32, Benninger Decl. ¶ 3(J) (“I have concern that there has not been sufficient acknowledgement of or attention to the inmates’ mental health under the stressors of pandemic and confinement.”). 25 Ex. 34, Haney Decl. ¶ 20 (“The fact that prisoners are double-celled during these lockdowns [in the general housing units] does not mitigate the negative effects of their essentially around-theclock in-cell confinement. In fact, double-celling may exacerbate these effects because of the interpersonal tensions and stressors that such unavoidably close around-the-clock contact generates.”). 26 Ex. 30, Meyer Decl. ¶ 36 (“People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention.”). 27 Even in less extreme forms of isolation than those imposed at the Jail, the CDC Guidance recommends efforts to mitigate the mental health consequences of any necessary medical isolation. See, e.g., Ex. 36, CDC at 12 (“[I]f group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.”); id. at 13 (“Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health.”); id. at 13–14 (recommending that, since “visitation is important to maintain mental
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physical harm; “the extraordinary added stress of social isolation under these especially onerous conditions” may “depress prisoners’ immune systems and render them even more vulnerable to COVID-19 virus, and less able to combat it if and when they contract it.” Ex. 34, Haney Decl. ¶ 26; see also Ex. 30, Meyer Decl. ¶ 36 (“Failure to provide adequate mental health care . . . as appears to be the case at the Prince George’s County Jail, will result in poor health outcomes.).
IV. The Jail Maintains a Policy of Overdetention for COVID-19 Positive Inmates “Prisons and jails are not isolated from communities,”28 and Prince George’s County is the “epicenter of [the COVID-19 epidemic in] the state.” Compl. ¶ 44. It is therefore critical that the Jail control the COVID-19 outbreak within its walls to protect people outside of them. The Jail has not done this. As described above, it has flouted the most basic public health recommendations to prevent the virus’s spread. However, the Jail has instituted its own method of infection control: it detains people with COVID-19 even when it has no legal authority to do so. Specifically, the Jail refuses to release COVID-positive prisoners who have paid bail until it deems them non-contagious. Compl. ¶ 183. Accordingly, one prisoner who paid his bond on April 3, 2020—but tested positive for COVID-19 on the same day—was illegally imprisoned in the cohorted isolation cell in the Jail for fourteen days. Id. ¶ 184. Had he been released when he paid his bond on April 3rd, he would have sought treatment for COVID-19 at a local hospital. Id. ¶ 186.
ARGUMENT Plaintiffs seek a temporary restraining order (TRO) and preliminary injunction to address unconstitutional conditions of confinement at the Prince George’s County Jail, as well as the Jail’s
health,” 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.”). The Jail has done none of this. 28 Ex. 30, Meyer Decl. ¶ 15; see id. (explaining the negative health implications of COVID-19 outbreaks within prisons upon surrounding communities).
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policy of unlawfully detaining COVID-positive prisoners. To obtain a TRO or a preliminary injunction, Plaintiffs must show the following: (1) Plaintiffs are likely to succeed on the merits, (2) they are likely to suffer irreparable harm absent preliminary relief, (3) the balance of equities tips in Plaintiffs’ favor, and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, (2008); Montgomery v. Hous. Auth. of Bal. City, 731 F. Supp. 2d 439, 441 (D. Md. 2010). Plaintiffs satisfy all four requirements on both claims.
I. A Temporary Restraining Order Should Issue to Address the Jail’s Unconstitutional Conditions.
In recent weeks, federal district courts have granted temporary restraining orders to remedy constitutionally inadequate conditions that increase the threat of COVID-19, ordering jails to comply with the CDC Guidance and take other necessary measures to protect prisoners from infection, serious illness, and death.29 Because the conditions in the Prince George’s County Jail create a substantial risk of serious future harm to the prisoners’ health, this Court should do the same.
A. Plaintiffs Are Likely to Succeed on the Merits of Their Eighth And Fourteenth Amendment Claims.
The Eighth and Fourteenth Amendments prohibit state actors from exposing incarcerated people to conditions of confinement that threaten their health and safety. Helling v. McKinney, 509 U.S.
29 See, e.g., Ex. A, Order (Doc. 48), Banks v. Booth, 1:20-cv-849 (D.D.C. Apr. 19, 2020) (granting temporary restraining order to Plaintiffs and putative class of prisoners at the D.C. jail); Ex. B, Order (Doc. 12), Cameron v. Bouchard, No. 2:20-cv-10949-LVP-MJH, at 4-7 (E.D. Mich. Apr. 17, 2020) (granting temporary restraining order to Plaintiffs and putative class of pretrial and postconviction prisoners at the Oakland County Jail); Ex. C, Order (Doc. 40), Valentine v. Collier, No. 4:20-CV-1115 (S.D. Tex. Apr. 16, 2020) (granting temporary restraining order to Plaintiffs and putative class of prisoners at geriatric prison); Ex. D, Order (Doc. 25), Swain v. Junior, No. 1:20cv-21457-KMW, at 2-5 (S.D. Fla. Apr. 7, 2020) (granting temporary restraining order to Plaintiffs and putative class of putative class of pretrial and post-conviction prisoners at Metro West Detention Facility in Miami, Florida).
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25, 33 (1993); see Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (stating that prison officials must “take reasonable measures to guarantee the safety of the inmates”). While the Eighth Amendment secures the right of people convicted of a crime to be free from exposure to serious harm, Helling, 509 U.S. at 33, the Due Process Clause of the Fourteenth Amendment affords at least as much protection to pretrial detainees, City of Revere v. Mass. General Hosp., 463 U.S. 239, 244 (1983).
Under these Amendments, an official is liable if she displays “deliberate indifference” to “a condition of confinement that is sure or very likely to cause serious illness and needless suffering” to someone detained, which includes “exposure of inmates to a serious, communicable disease.” Helling, 509 U.S. at 33 (1993). In the Fourth Circuit, the same deliberate indifference test that applies to convicted prisoners applies to pretrial detainees as well, and it includes both objective and subjective components.30 See Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (explaining this standard); Hill v. Nicodemus, 979 F.2d 987, 991-92 (4th Cir. 1992) (applying the deliberate indifference standard to pretrial detainees). Here, there is a substantial risk of harm, and both the objective and subjective deliberate indifference tests are satisfied.
1. The Jail’s Conditions Create a Substantial Risk of Serious Harm. To meet the objective component of the deliberate indifference standard, a detainee must show that he faces “a substantial risk of . . . serious harm resulting from the prisoner’s unwilling exposure
30 After the U.S. Supreme Court’s decision in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), some circuits have concluded that pretrial detainees need not prove the subjective component of the deliberate indifference standard. See Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018); Gordon v. Cty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018); Darnell v. Pineiro, 849 F.3d 17, 33–35 (2d Cir. 2017). However, the Fourth Circuit has not yet addressed the question of whether Kingsley alters the deliberate indifference inquiry for pretrial detainees. Therefore, at present, pretrial detainees must satisfy both the objective and subjective components to prevail. See Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133, at *8 (D. Md. Apr. 3, 2020).
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to the challenged conditions.” Shakka, 71 F.3d at 166.31 Plaintiffs easily do so. COVID-19 is
highly communicable, and the Jail’s conditions have amplified its spread. Compl. ¶¶ 27-29, 79-
147. There is already a severe outbreak of COVID-19 at the Prince George’s County Jail: nearly
half of its approximately 600 prisoners may already be infected. Id. ¶¶ 68-78.32 And the harm
Plaintiffs face is serious. In the United States, the mortality rate is 3.2 percent. Ex. 32, Benninger
Decl. ¶ 2(G)(i). Twenty percent of those infected with COVID-19 will need hospitalization, and
five percent will need intensive care. Ex. 30, Meyer Decl. ¶ 31; Ex. 32, Benninger Decl. ¶ 2(F).
Survivors may suffer long-term physical damage. Compl. ¶ 34.
Because of the Jail’s conditions, there is also a substantial risk that infected prisoners will
become seriously ill, suffer long-term physical damage, and die. Symptomatic and COVID-
positive prisoners and are not adequately monitored for signs of serious illness, and the medical
31 Since Plaintiffs’ claims involve inadequate medical treatment, and since a subclass of them is medically vulnerable due to pre-existing conditions, Plaintiffs could also frame these claims in terms of “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976); see Coreas, No. CV TDC-20-0780, 2020 WL 1663133, at *9 (assessing medically vulnerable detainees’ conditions claim through this lens). However, since the Jail’s dangerous conditions include both failures in medical care and other basic safety precautions and imperil prisoners both with and without pre-existing conditions, Plaintiffs’ claims are best characterized as a challenge to conditions that create a substantial risk of “serious illness and needless suffering.” Helling, 509 U.S. at 33. Regardless, “‘[w]hether one characterizes the treatment received by [the prisoner] as inhuman conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the ‘deliberate indifference’ standard.’” Id. at 32 (quotations omitted). 32 The high risk of COVID-19 infection in the Jail alone is sufficient to create a significant risk of serious harm, regardless of whether that harm has or will affect all of the prisoners exposed to it. See Helling, 509 U.S. at 33 (stating that the Eighth Amendment “required a remedy” where prisoners were crowded with others who had infectious diseases, even where “it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed”); id. (“We would think that a prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery.”); see also Ex. E, Order (Doc. 23) Malam v. Adduci, No. 20-10829, at 29 (E.D. Mich. Apr. 6, 2020) (“In the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a generalized risk is a “substantial risk” of catching the COVID-19 virus for any group of human beings in highly confined conditions.”).
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attention they do receive is limited or misguided. Id. ¶¶ 105-18, 148-57, 167-82. Meanwhile, the
Jail’s many barriers to care “will result in ongoing transmission within housing units and high risk
for complications of COVID-19 among those who are infected, including death.” Ex. 30, Meyer
Decl. ¶ 27(a); Compl. ¶¶ 149-66.
At baseline, prisoners with certain pre-existing conditions are in greater danger from COVID19, “including a meaningfully higher risk of death.” Ex. 30, Meyer Decl. ¶ 40.33 The Jail’s
conditions have intensified these risks. Jail staff do not specially monitor these prisoners to protect
them from infection, and when they show symptoms of COVID-19, they are regularly turned away
from care. Compl. ¶¶ 154, 173; see ¶¶ 106-11, 126-27, 151-53, 157. The Jail is also failing to
provide medical care for anything other than COVID-19, including long-term chronic conditions
(like asthma). Id. ¶¶ 158-61. As a result medically vulnerable prisoners are at even greater risk of serious illness and death.34
Other conditions at the Jail further enhance the risk the virus poses to all prisoners. Medical
isolation cells are unsanitary: there is feces and mucus on the walls. Thus, “[i]n addition to spread
33 See Coreas, No. CV TDC-20-0780, 2020 WL 1663133, at *11 (“For individuals in high risk categories such as Petitioners, the available data shows that the death rate for those with COVID19 is between 15 percent and 20 percent.”). 34 See Ex. 30, Meyer Decl. ¶ 35 (“Failure to provide individuals adequate medical care for their chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.”); Ex. 32, Benninger Decl. ¶ 3(C) (“During this pandemic, inmate reports . . . show that inmates with medical conditions that put them at increased risk of infection and disease, are not being cared for appropriately”); see also Coreas, No. CV TDC-20-0780, 2020 WL 1663133, at *11 (“[T]he Court finds a major deficiency in the lack of any procedures to address the heightened risk to detainees with certain medical conditions. . . . For individuals in high risk categories such as Petitioners, the available data shows that the death rate for those with COVID-19 is between 15 percent and 20 percent. While adequate treatment for Coreas’s condition would necessarily require separation from, or at least minimization of contact with, other detainees, Respondents have taken no general or specific steps to meet this medical need for distancing, whether by providing Coreas with his own cell and otherwise distancing him from other detainees.").
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of COVID-19, people in these medical isolation units are therefore at risk of exposure to other diseases, including HIV and Hepatitis C.” Ex. 30, Meyer Decl. ¶ 33. Prisoners are locked down in poorly ventilated cells for 23 hours per day with symptomatic cellmates, “contribut[ing] to disease transmission.” Id. ¶ 30. Prisoners both in lockdown and medical isolation are denied access to basic accommodations to mitigate psychological stress, and the Jail has halted mental health services entirely. This is already inflicting grave harm to prisoners’ mental health35 and may “depress prisoners’ immune systems and render them even more vulnerable to COVID-19 virus, and less able to combat it if and when they contract it.” Ex. 34, Haney Decl. ¶ 26.
These conditions satisfy the objective test. See Ex. B, Order (Doc. 12), Cameron v. Bouchard, No. 2:20-cv-10949-LVP-MJH, at 3 (E.D. Mich. Apr. 17, 2020) (“It cannot be disputed that COVID-19 poses a serious health risk to Plaintiffs and the putative class,” which included all pretrial detainees at the Oakland County Jail).36 Indeed, a court in this district has so found in much less extreme circumstances than these. In Coreas v. Bounds, No. TDC-20-0780, 2020 WL 1663133 (D. Md. Apr. 3, 2020), the court found that detainees at two different ICE facilities had shown a substantial risk of serious harm, even though there were no confirmed cases on COVID-19 at those facilities. Id. at *9-10; see also Jones v. Wolf, No. 20-CV-361, 2020 WL 1643857, at *9 (W.D.N.Y. Apr. 2, 2020) (finding that the risk of COVID-19 in an immigration detention facility satisfied the objective factor even through there were no reported cases there).37
35 See, e.g., Compl. ¶ 14 (stating that Mr. Seth, who is on 23-hour lockdown and no access to mental health services, has bipolar disorder). 36 See also, e.g., Ex. C, Order (Doc. 40), Valentine v. Collier, No. 4:20-CV-1115, at 1 (Apr. 16, 2020) (finding that Named Plaintiffs representing a class of prisoners “face[d] a high risk of serious illness or death from exposure to COVID-19”). 37 In other factual contexts, courts have found that far more attenuated dangers than the immediate threats here could satisfy the objective test. See, e.g., Helling, 509 U.S. at 35 (affirming circuit court’s holding that second-hand smoke posed an unreasonable risk of serious harm to a prisoner’s
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Here, an outbreak is already in progress. And the Jail has intensified the risks of COVID-19 by (for example) suspending mental health care and exposing prisoners to extreme psychological distress through the use of punitive lockdowns and isolation conditions. See Ex. F, Order (Doc. 27), Doe v. Barr, 20-cv-2141-LB (Apr. 12, 2020), at 16 (finding that “petitioner’s other diagnoses of chronic PTSD and depression compound his susceptibility” to a COVID-19 infection); see id. at 6–7 (detailing evidence that mental illness can depress the immune response and lead to an increased risk of infections). Further, although Plaintiffs’ claims address the risk of harm imposed by the sum total of the Jail’s inadequate conditions, some of the Jail’s conditions may independently create a substantial risk of serious harm. See, e.g., Porter v. Clarke, 923 F.3d 348, 357 (4th Cir. 2019), as amended (May 6, 2019) (finding that conditions wherein prisoners spent “between 23 and 24 hours a day ‘alone in a small . . . cell’ with ‘no access to congregate religious, education, or social programming’—pose[d] a ‘substantial risk’ of serious psychological and emotional harm.”) (quotations omitted); McBride v. Deer, 240 F.3d 1287, 1292 (10th Cir. 2001) (finding deliberate indifference where a prisoner was forced to live in a feces-covered cell for three days).
To address the objective component, courts must also “assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency
future health); Johnson v. Epps, 479 Fed. App’x 583, 590-91 (5th Cir. 2012) (finding that prison policy under which prisoners use unsterilized barbering instruments, which could expose them to communicate diseases, posed an unreasonable risk of future harm), Brown v. Bargery, 207 F.3d 863, 865, 867-68 (6th Cir. 2000) (finding that improperly installed prison bunks that created a danger that inmates could slide off of them and onto the concrete floor, as well as protruding anchor bolts “which could potentially cause an injury,” could constitute a risk to their future health under the objective prong); DeGidio v. Pung, 920 F.2d 525, 527, 529 (8th Cir. 1990) (affirming district court’s conclusion that a “serious risk to the inmates’ health existed where a prison had an inadequate response to a tuberculosis outbreak even though [o]nly a few infected individuals develop active tuberculosis” and the rest are asymptomatic).
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to expose anyone unwillingly to such a risk.” Helling, 509 U.S. at 36. Society has deemed the risk posed by COVID-19 intolerable: there have been unprecedented changes to American life to avoid it. Compl. ¶¶ 38-40.
2. Defendants Knew of and Disregarded the Excessive Risk to Prisoners’ Health and Safety Posed by COVID-19, Particularly Absent Appropriate Precautions.
To satisfy the subjective component of deliberate indifference, a plaintiff must show that prison officials “kn[ew] of and disregard[ed] an excessive risk to [the plaintiff’s] health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “[T]he test is whether the [prison officials] kn[ew] the plaintiff inmate faces a serious danger to his safety and they could avert the danger easily yet they fail to do so.” Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 723 (4th Cir. 2010) (quotations omitted).
Defendants knew the dangers imposed by COVID-19. When the Jail reported its first case of COVID-19 on March 30, 2020, Defendant McDonough publicly predicted that this number would grow, specifically citing the challenges of containing a virus in a jail. Compl. ¶¶ 69-70 (Defendant McDonough comparing jails to “cruise ships without the views or the amenities,” observing that “[a] jail is a pretty transitory place” where “[p]eople are close together” and “breathing the same air,” and that she “expect[ed]” more cases of COVID-19 in the Jail); see Makdessi v. Fields, 789 F.3d 126, 141 (4th Cir. 2015) (stating that when a particular danger has been “expressly noted by prison officials,” this can prove that official’s actual knowledge under the subjective test).38
38 The Prince George’s County Department of Corrections has also tweeted about COVID-19, often noting the very facts that make the Jail’s conditions so dangerous. See, e.g., Prince George’s County Department of Corrections (@PGCorrections), Twitter (Apr. 8, 2020, 12:32 PM), https://twitter.com/PGCorrections/status/1247925269765197830 (“Having a chronic disease like diabetes can put you at higher risk for severe illness from viruses. See our attached fact sheet about caring for yourself, managing your diabetes, and COVID-19.”); Id. (Apr. 6, 2020, 10:04 AM), https://twitter.com/PGCorrections/status/1247163379954974720 (posting pictures of a “social distancing farewell lunch” at which corrections officers are clearly less than six feet apart); Id.
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Aside from this, the risks imposed by Defendants’ failures are obvious (especially during an active outbreak). It is not challenging to predict the grim results of denying prisoners soap, neglecting to sanitize common surfaces, locking medically vulnerable prisoners in cells with symptomatic cellmates for 23-hours per day, and failing to monitor and treat symptomatic prisoners during a pandemic. See Porter, 923 F.3d at 348, 361 (“[A]n obvious risk of harm justifies an inference that a prison official subjectively disregarded a substantial risk of serious harm to the inmate.”) (quotations omitted); Makdessi, 789 F.3d at 136 (stating that subjective test can be satisfied where the risk of harm “was so obvious that it had to have been known”). Moreover, the CDC’s Guidance for correctional and detention facilities, issued on March 23, 2020, explicitly warns of the specific dangers COVID-19 imposes in these institutions. Ex. 36, CDC Guidance at 2 (describing “unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors,” and advising that “[c]onsistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19”).39
Defendants disregarded this risk. They failed to implement the CDC Guidance on almost every score. 40 See Ex. B, Cameron, No. 2:20-cv-10949-LVP-MJH, at 3 (finding that Plaintiffs and putative class of prisoners at a jail were likely to succeed on their Eighth and Fourteenth
(Apr. 6, 2020, 9:05 AM), https://twitter.com/PGCorrections/status/1247148491631140867 (warning that “the coronavirus can cause stress, fear, and anxiety,” and posting a flyer with “things you can do to help,” including “exercise,” “talk[ing] with people you trust about how you are feeling,” and “call[ing] loved ones just to say hi”). 39 The CDC Guidance also warns that “[i]ncarcerated/detained persons and staff may have medical conditions that increase their risk of disease from COVID-19,” and provides a link to a list of those conditions. Ex. 36, CDC at 2. 40 The CDC Guidance warned about the likely effects of certain ill-advised policies the Jail has adopted. See Ex. 36, CDC at 2 (“Incarcerated persons may hesitate to report symptoms of COVID19 or seek medical care due to co-pay requirements and fear of isolation”).
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Amendment claims where the jail “ha[d] not imposed even the most basic safety measures recommended by heath experts, the Centers for Disease Control and Prevention, and Michigan’s Governor to reduce the spread of COVID-19 in detention facilities”). The predictable result of the Jail’s conditions is the proliferation of an outbreak in a facility that is also failing to meet infected prisoners’ medical needs. Under these circumstances, Plaintiffs have satisfied the subjective factor and shown deliberate indifference.
B. Plaintiffs Will Suffer Irreparable Harm Absent Immediate Relief Without this Court’s relief, Plaintiffs will suffer irreparable harm for two reasons. First, “the denial of a constitutional right . . . constitutes irreparable harm.” Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987). Second, the Jail’s conditions subject Plaintiffs to an increased risk that they will contract COVID-19 and that they will suffer serious illness, physical damage, and death if they do. This, of course, is irreparable harm as well.41
C. The Balance of Equities and the Public Interest Favor the Requested Relief The balance of equities favors Plaintiffs. Plaintiffs face infection and sickness in a Jail that cannot protect them; they seek this injunction to avoid serious illness, long-term physical damage, and death. The Jail need only comply with basic public health measures. The relief that Plaintiffs seek is also in the public interest. The Jail is not an isolated environment. Uncontrolled infection within the Jail risks the health and safety of every person connected directly or indirectly to the many correctional officers, healthcare workers and others who enter and leave the Jail environment
41 See, e.g., Ex. B, Cameron, No. 2:20-cv-10949-LVP-MJH, at 3 (finding that prisoners at a jail would suffer irreparable harm absent an injunction because “they face a heightened risk of contracting this life-threatening virus simply as incarcerated individuals and even more so without the imposition of these cautionary measures”); see also Coreas, No. CV TDC-20-0780, 2020 WL 1663133, at *13 (finding that, if there were any COVID-19 cases in the immigration facilities at issue, it would find that petitioners faced “a significant risk of death or serious illness,” and that this constitutes irreparable harm).
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every day. See Ex. 30, Meyer Decl. ¶ 15 (“Prison health is public health.”); Ex. 32, Benninger Decl. ¶ 3(L) (“[B]y supporting inmate health, we are supporting public health.”). Therefore, any remedy that will protect the Plaintiffs benefits the wider community.42
II. A Temporary Restraining Order Should Issue to Enjoin the Jail’s Unlawful Detention Policy.
When the basis for a person’s detention has ended, she is entitled to release. Therefore, Plaintiffs ask this Court to enjoin the Prince George’s County Jail from detaining COVID-positive prisoners who are legally entitled to release. Compl. ¶¶ 183-87. Plaintiffs satisfy all four factors necessary for the grant of a temporary restraining order. See Winter, 555 U.S. at 20.
Plaintiffs are likely to succeed on the merits. Pretrial detainees have a liberty interest in paying bail and being released after paying bail.43 And post-trial detainees “clearly [have] a Fourteenth Amendment right to be released from service of a sentence upon expiration of its unequivocal term.” See Perkins v. Peyton, 369 F.2d 590, 592 (4th Cir. 1966); see also Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause.”). Thus, the government infringes on an individual’s due process rights when it continues to detain a person after the legal basis for detention has ended.
42 See Ortuno v. Jennings, 2020 U.S. Dist. LEXIS 62030, 14 (N.D. Ca. April 8, 2020); (“The public interest in promoting public health is served by efforts to contain further spread of COVID-19, particularly in detention centers, which typically are staffed by numerous individuals who reside in nearby communities.”); Castillo v. Barr, No. CV2000605TJHAFMX, 2020 WL 1502864, at *6 (C.D. Cal. Mar. 27, 2020) (“[T]he emergency injunctive relief sought, here, is absolutely in the public's best interest. The public has a critical interest in preventing the further spread of the coronavirus. An outbreak at Adelanto would, further, endanger all of us.”). 43 See Steele v. Cicchi, 855 F.3d 494, 502 (3d Cir. 2017) (identifying a “constitutionally protected liberty interest in exercising [a] bail option, once bail had been set”) (quotations omitted)); Lynch v. City of New York, 335 F. Supp. 3d 645, 654 (S.D.N.Y. 2018) (“Plaintiffs have identified a liberty interest in paying bail once it is fixed and in being released once bail is paid.”).
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Courts have analyzed overdetention claims in terms of substantive due process. See, e.g., Lynch v. City of New York, 335 F. Supp. 3d 645, 653 (S.D.N.Y. 2018).44 An infringement of an individual’s substantive due process rights violates the Fourteenth Amendment when it is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Hawkins v. Freeman, 195 F.3d 732, 738 (4th Cir. 1999) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, (1998)). In a “custodial situation,” “deliberate indifference” can satisfy this standard. Cty. of Sacramento, 523 U.S. at 851, 852. Deliberate indifference requires showing that “defendants actually knew of and disregarded a substantial risk of serious injury to the detainee.” Young v. City of Mount Ranier, 238 F.3d 567, 576 (4th Cir. 2001).
Here, Defendants are responsible for effectuating prisoners’ release. They are surely aware that detainees who post bail are entitled to release, and that a convicted prisoner is entitled to release when her sentence expires. Subjecting prisoners to as many as 14 additional days in jail because they are COVID-positive constitutes deliberate indifference. See Hawkins, 195 F.3d at 738; White by White v. Chambliss, 112 F.3d 731, 737 (4th Cir. 1997) (stating that when an official “[chooses] to ignore the danger” of constitutional violations, this amounts to deliberate indifference).
The remaining three factors for a temporary restraining order are also met. Constitutional violations constitute irreparable harm, as do deprivations of liberty. See Ross, 818 F.2d at 1135; Jarpa v. Mumford, 211 F. Supp. 3d 706, 711 (D. Md. 2016) (“[B]ecause the harm is loss of liberty,
44 Some courts assess pretrial detainees’ claims under the Fourth Amendment and post-conviction detainees’ claims under the Eight Amendment. See, e.g., Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015) (conducting Fourth Amendment analysis on claim from a plaintiff “kept in custody for a new purpose after she was entitled to release”); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (applying Eighth Amendment analysis to an overdetention claim). The Fourth Circuit has not explicitly prescribed a constitutional framework for overdetention claims. However, Perkins suggests that in this circuit, the Fourteenth Amendment applies. See Perkins, 369 F.2d at 592. Regardless, Plaintiffs would also prevail under the Fourth and Eighth Amendment analysis.
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it is quintessentially the kind of harm that cannot be undone or totally remedied through monetary relief”). The balance of equities favor relief; the Jail has many options for resolving the risks of releasing COVID-positive prisoners. Indeed, hospitals “release” such individuals every day. But Plaintiffs risk being detained while sick with COVID-19 in a facility that is dangerously illequipped to treat them. Finally, the requested relief is in the public interest, as it requires Defendants to comply with basic liberty protections.
If the Jail is concerned about the release of COVID-positive prisoners into the community, the CDC Guidance recommends that it “contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.” CDC Guidance at 17. For infectious prisoners, this transition may be challenging, and the Jail should develop an appropriate solution. Illegal detention in squalid conditions is not that solution. This Court should grant relief.
III. This Court Should Order Release of the Medically Vulnerable Subclass of Pretrial Detainees Under 28 U.S.C. § 2241
The Jail is in the midst of an uncontrolled outbreak of COVID-19.45 The members of the Medically Vulnerable Subclass—all of whom are pretrial detainees not convicted of any crime— each have medical conditions that worsen the effects of COVID-19.46 For them, exposure to COVID-19 brings a meaningfully higher risk of permanent organ damage and death.47 The Jail
45 Ex. 30, Meyer Decl. ¶ 26 (“[I]t is my professional judgment that this facility is dangerously under-equipped and ill-prepared to prevent and manage the spread of COVID-19, which is already spreading throughout the jail.”). 46 See U.S. Centers for Diseases Control, “People Who Are At High Risk [for severe illness from COVID-19],” https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-athigher-risk.html (last reviewed Apr. 15, 2020). 47 Ex. 30, Meyer Decl. ¶ 40 (“[I]ndividuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune system, diabetes, mental health conditions) or older age. . . are in even greater danger in [correctional/detention] facilities,
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has no plan to protect these prisoners. Compl. ¶¶ 154, 173, 174. Like all prisoners at the Jail, they
are locked down with symptomatic cellmates, denied medical care (even COVID-19 symptoms),
and, once infected, isolated in unsanitary conditions where they are almost never monitored. See,
e.g., id. ¶¶ 106-11, 126-27, 151-53, 157. These conditions are dangerous for everyone; for
medically vulnerable prisoners, even more so.48
COVID-19 can escalate rapidly,49 and many vulnerable prisoners are already sick. For
example, six of the Named Plaintiffs have pre-existing conditions that make them especially
vulnerable to severe illness and death if they are infected with COVID-19. Five of them have
symptoms of COVID-19. Id. ¶¶ 14, 15, 17, 18, 19, 21.
Defendants cannot remedy the Jail’s many failures in time to protect these prisoners’ lives.
Therefore, their continued detention is unconstitutional, and this Court should release them
including a meaningfully higher risk of death.”); see Coreas, No. CV TDC-20-0780, 2020 WL 1663133, at *11 (“For individuals in high risk categories such as Petitioners, the available data shows that the death rate for those with COVID-19 is between 15 percent and 20 percent.”). 48 Ex. 30, Meyer Decl. ¶ 27(a) (stating that the Jail’s delays in medical care “will result in . . . a high risk for complications of COVID-19 among those who are infected, including death”); id. ¶ 31 (finding that “not even th[e] minimal amount of [medical] care” is being provided to prisoners who are sick with COVID-19); Id. ¶ 32 (stating that, given the disease’s rapidly progression, “people in medical isolation [for COVID-19] need to be diligently monitored for clinical worsening,” but prisoners’ accounts demonstrate “a lack of medical attention that is highly concerning and suggests that medical staff do not have the necessary staffing, training, or resources to identify when people require hospitalization”); id. (observing that the Jail’s nurses appear to “ignor[e] . . . medical issues . . . that may be signs of complicated COVID-19 disease); id. ¶ 35 (stating that the Jail’s “[f]ailure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality.”); Ex. 32, Benninger Decl. ¶ 9 (“[I]nmates with medical conditions that put them at increased risk of infection and disease, are not being cared for appropriately.”). 49 Ex. 30, Meyer Decl. ¶ 32 (“Progression of respiratory symptoms in COVID-19 can be extremely rapid.”); see Ex. 34, Benninger Decl. ¶ 3 (“In my clincal experience, persons infected with COVID-19 have the ability to rapidly decompensate from a respiratory standpoint once showing symptoms, sometimes requiring mechanical ventilation at an emergent pace.”).
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pursuant to a writ of habeas corpus under 28 U.S.C. § 2241.50 In recent weeks, multiple federal
courts have done this where there was no other way to protect imprisoned people’s rights (and
lives) from COVID-19.51
If this Court is not inclined to release the Medically Vulnerable Subclass as a whole, it can, as
other federal courts have, order Defendants to produce a list of the members of that subclass and
any other information this Court requires to make appropriate determinations as to them. See, e.g.,
Ex. B, Cameron v. Bouchard, No. 2:20-cv-10949-LVP-MJH, at 7 (E.D. Mich. Apr. 17, 2020)
(ordering Defendants to “[p]romptly provide Plaintiffs and the Court with a list of all individually
who are in the Medically Vulnerable Subclass . . . which includes their location, charge and bond
status,” and “a list of any individuals in the Medically Vulnerable Subclass who Defendants object
to releasing and the basis for that objection”); Ex. D, Swain v. Junior, No. 1:20-cv-21457-KMW,
50 Because the Medically Vulnerably Subclass members are pretrial detainees, they may bring this action under § 2241. In re Wright, 826 F.3d 774, 782 (4th Cir. 2016) (explaining that prisoners in . . . pre-conviction custody . . . or other forms of custody that are possible without a conviction are able to take advantage of § 2241 relief) (quotations omitted). 51 See, e.g., Ex. E, Order (Doc. 23), Malam v. Adducci, 20-10829, at 39-40 (releasing immigration detainee under § 2241 because, given the “risk and severity of irreparable harm to the Petitioner and the weight of public health evidence,” release was “the only reasonable option”); Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *5-6, 9 (M.D. Pa. Mar. 31, 2020) (finding that conditions of confinement at an immigrant detention facilities created serious risks for medically vulnerable detainees where, as here, there were unsanitary conditions, prisoners were forced to buy their own soap and share cleaning supplies, the facilities did not provide information on COVID-19 prevention, and detainees shared cells with other inmates who showed symptoms of COVID-19); Basank v. Decker, 20 Civ. 2518 (AT), 2020 WL 1481503, at *4-6 (S.D.N.Y. Mar. 26, 2020) (ordering release of ten immigration detainees with underlying medical conditions including diabetes, heart disease, obesity, and asthma because it could not ensure social distancing and had not taken specific steps to protect medically vulnerable detainees, although, in contrast to this case, the ICE detention facility was providing soap and hand sanitizer and substantially increased cleaning); see also Coreas, No. CV TDC-20-0780, 2020 WL 1663133, at *12-13 (stating that the court would release the medically vulnerable immigration detainees under § 2241 if there were any cases of COVID-19 at the facilities that held them and ordering the facilities to certify that they have obtained and will administer tests for COVID-19 for all symptomatic detainees).
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at 2-5 (S.D. Fla. Apr. 7, 2020) (ordering Defendants to file, within two days, a list of Medically Vulnerable Subclass Members under seal and to also “file a notice describing the measures being employed to protect these individuals from the risk of COVID-19.”).52
IV. Additional Interim Remedies Are Available to This Court. Courts of equity operate with flexibility, especially in emergencies of great consequence. “The horizon of risk for COVID-19 in this facility is a matter of days, not weeks.” Ex. 30, Meyer Decl. ¶ 41. Therefore, this Court may need to pursue interim remedies to protect prisoners from serious harm while it considers their constitutional claims. First, this Court can transfer prisoners to home detention or another appropriate facility if necessary to protect their rights under the Eighth and Fourteenth Amendments. Second, this Court can release members of the Medically Vulnerable Subclass on non-monetary bond while it considers their habeas petition under § 2241. A. This Court Has and Should Exercise the Authority to Transfer Prisoners to Home
Detention or Another Appropriate Facility to Remedy the Constitutional Violations or Protect Prisoners From Additional Constitutional and Physical Harms. Plaintiffs ask this Court to order Defendants to remedy the conditions at the Prince George’s County Jail so that they do not impose a substantial risk of serious harm on the people imprisoned there. However, as the CDC and other experts recognize, it may be impossible to carry out some of these measures and to protect certain vulnerable prisoners without transferring at least some prisoners.53 Accordingly, Plaintiffs ask this Court to order that, to the extent Defendants cannot
52 In addition, as described below, this Court has and should exercise the authority to release members of the Medically Vulnerable Subclass on non-monetary bond pending the outcome of their habeas petition. See infra at 33–35. 53 See Ex. 36, CDC at 23 (stating that facilities should “ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms,” and [i]f the 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”); id. at 16 (noting that if its medical isolation recommendations are infeasible, a prison should “[s]afety transfer individual[s] to another facility with [the recommended] medical isolation capacity”); see also Amend at 3
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remedy the substantial risk of serious harm to certain prisoners, it transfer them to home detention or another appropriate facility.54 Another federal court recently recognized this solution for protecting prisoners in a jail that cannot adequately address the risk of COVID-19. See Ex. G, Gray v. Cty. of Riverside (Doc. 191), 5:13-cv-0444-VAP-OPx, at 4 (C.D. Cal., Apr. 14, 2020) (stating that if the jail “is unable to implement adequate social distancing within its existing jail facilities and take other necessary steps to decrease the risk of infection, this Court has the authority to order the transfer of prisoners to different facilities.”).
Indeed, courts have previously transferred prisoners where necessary to protect their Eighth Amendment rights. For example, in Plata v. Brown, No. C01-1351 TEH, 2013 WL 3200587 (E.D. Cal. June 24, 2013), the court addressed the presence of “cocci” infections at two California prisons. Cocci infections are asymptomatic for 60 percent of people, but it “can also result in serious illness and, in the most extreme cases, death.” Id. at *2. The court found that the prisons’ measures to abate the threat of cocci were inadequate to avoid a substantial risk of serious harm to certain high-risk inmates, and, accordingly, failure to transfer these groups of prisoners would “result in deliberate indifference under the Eighth Amendment.” Id. at 10. Other courts have also
(“Prisons, jails, and other places of detention that are not able to comply with ethical standards of quarantine and medical isolation in the COVID-19 pandemic should urgently implement strategies to release or transfer people to locations that have the capacity to meet community standards of medical care”); see also ABA Standards for Criminal Justice, 23-6.2(c) (3d ed. 2011) (“A prisoner who requires care not available in the correctional facility should be transferred to a hospital or other appropriate place for care.”); Ex. 30, Meyer Decl. ¶ 39–40 (recommending, among other things, that “the jail should evaluate individuals for release in order to reduce the population of the jail” particularly “individuals with preexisting conditions”). 54 Depending on its current capacity, Defendants may be able to transfer some prisoners to the Prince George’s County Community Release Center.
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ordered transfers to remedy or avoid Eighth Amendment violations.55 If necessary to avoid a
substantial risk of serious harm to some or all prisoners, this court should do the same.56
B. This Court Has and Should Exercise the Authority to Release Medically Vulnerable Subclass Members on Non-Monetary Bond Conditions Pending Review of Their Request for Habeas Relief Under § 2241.
A federal court has the authority to grant bail to habeas petitioners who are properly before it.
See United States v. Perkins, 53 F. App’x 667, 669 (4th Cir. 2002) (explaining the standard “[t]o
prevail on a motion for release on bail in a habeas case”); Mapp v. Reno, 241 F.3d 221, 226 (2d
Cir. 2001) (describing “the authority of the federal courts to grant bail to habeas petitioners”);
Bolante v. Keisler, 506 F.3d 618, 620 (7th Cir. 2007) (“Inherent judicial authority to grant bail to
persons who have asked for relief in an application for habeas corpus is a natural incident of habeas
corpus, the vehicle by which a person questions the government’s right to detain him.”). Pursuant
55 See, e.g., Reaves v. Dep’t of Corr., 392 F. Supp. 3d 195, 200, 210 (D. Mass. 2019) (concluding that transfer a quadriplegic state prisoner convicted of first degree murder to a non-Department of Corrections facility where he could receive adequate care was the appropriate remedy for his Eighth Amendment claims challenging his inadequate medical care); United States v. Wallen, 177 F. Supp. 2d 455, 458, 459 (D. Md. 2001) (ordering transfer of a pretrial detainee because of the Court’s “grave[] concern[s] that [his] Fifth Amendment rights [against deliberate indifference to his serious medical needs] may have been violated and, more importantly, that those rights may be at continued risk if he [were] returned to [the jail]”); Johnson v. Harris, 479 F. Supp. 333, 338 (S.D.N.Y. 1979) (ordering the transfer of a severely diabetic prison to a facility that could meet his medical needs as a remedy for Eighth Amendment violations). 56 Transfers to restrictive home detention do not constitute “prisoner release order[s],” which are prohibited under the Prison Litigation Reform Act (PLRA) absent certain conditions. See 18 U.S.C. § 3626(a)(3); see Gray (Doc. 191), 5:13-cv-0444-VAP-OPx, at 4-5 (“[N]othing in the PLRA prohibits a district judge from ordering the transfer of prisoners in response to violations of their constitutional rights . . . nor would it prohibit the Court from ordering the Sheriff to use his authority . . . to transfer prisoners”); Reaves, 404 F. Supp. 3d at 522–23 (finding that transfer of a prisoner to a facility outside of the Department of Corrections where his medical needs could be met did not constitute a “prisoner release order” under the PLRA); Plata, 2013 WL 3200587, at *8 (N.D. Cal. 2013) (noting Defendants’ concession that a transfer out of a prison to correct a constitutional violation was not a “prisoner release order”).
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to this authority, if this Court does not immediately release members of the Medically Vulnerable Subclass under § 2241, it should release some or all of them on non-monetary bond.
Release on bond pending habeas is appropriate where the petitioner can “show that his petition presents a substantial constitutional claim upon which he has a high probability of success, and that extraordinary circumstances warrant his release.” Perkins, 53 F. App’x at 669. Circuit courts have defined “extraordinary circumstances” to mean that “the grant of bail [is] necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 226 (quotations omitted). See Abdullah v. Bush, 945 F. Supp. 64, 67 (D.D.C. 2013), aff’d sub nom. Abdullah v. Obama, 753 F.3d 193 (D.C. Cir. 2014) (same); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (same).
Extraordinary circumstances exist here.57 The Medically Vulnerable Subclass seeks habeas relief because if they do not receive it, there is an unacceptable risk that they will become seriously ill and die. Rapid removal from the jail is necessary “to make the habeas remedy effective” because, with further delay, medically vulnerable prisoners may suffer the severe illness, physical damage, and death they seek habeas to avoid. Mapp, 241 F.3d at 226.58
Based on these considerations, a federal court for the District of Massachusetts has released (and continues to release) numerous civil immigration detainees on non-monetary bond conditions while their class action habeas petition based on a detention center’s failure to protect them from the spread of COVID-19 is pending. See Ex. H, Order (Doc. 64), Savino v. Souza, No. 20-10617-
57 Plaintiffs have already described above, why they are likely to succeed on the merits. See supra at 17–25. And a constitutional challenge to jail conditions that imperil prisoners’ health and safety is surely “substantial.” Perkins, 53 F. App’x at 669. 58 Cf. Johnson v. Marsh, 227 F.2d 528, 529-32 (3d Cir. 1955) (finding that a district court had the power to grant of bail pending habeas where the petitioner, “an advanced diabetic, was, under conditions of confinement, rapidly progressing toward total blindness,” comparing this authority to a judge’s power to issue a “stay of execution” while a petition is pending).
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WGY, 2020 WL 1703844, at *8–9 (Apr. 8, 2020). Finding “extraordinary circumstances” in “this nightmarish pandemic,” the court opted to “diligently entertain[] bail applications while the petitions for habeas corpus are pending.” Id. at *9. On April 15, 2020, the Court denied the government’s request to stay the releases. In its Order, the Court explained: “We are in the midst of a pandemic unprecedented in our lifetime. . . . [T]he Court will continue, on an individual basis, to work through the difficult issues of bail in the present crisis. . . . Moreover, compelling issues of individual, institutional, and community health preclude the luxury of a stay.” Doc. No. 86 at 1-3 (Apr. 15, 2020) (docket text).
Other courts have also found that the risks imposed by COVID-19 warranted release on bond while a habeas action was pending.59 Given the severe and unavoidable risks to the Medically Vulnerable Class, this Court can and should act quickly to do the same.
59 See Avendano Hernandez v. Decker, No. 20-CV-1589 (JPO), 2020 WL 1547459, at *3 (S.D.N.Y. Mar. 31, 2020) (releasing § 2241 habeas petitioner challenging unconstitutional conditions of confinement—“specifically, continued risk of exposure to COVID-19”—because his continued detention would expose him to the infection he seeks habeas relief to avoid and, thus, “immediate[] release [wa]s necessary to ‘make the habeas remedy effective’”) (quoting Mapp, 241 F.3d at 230); Ex. I, Order (Doc. 507-1), Jimenez v. Wolf, No. 18-10225-MLW, at 3-4 (D. Mass. Mar. 26, 2020) (concluding that release of habeas petitioner on bail was “necessary to … make the habeas remedy effective” because “we’re living in the midst of a coronavirus pandemic,” “being in a jail enhances risk,” and “[i]f the petitioner is infected and dies …. [t]he habeas remedy will be ineffective”).
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Respectfully submitted on April 21, 2020,
By s/Elizabeth Rossi Elizabeth Rossi Bar No. 19616 Katherine Chamblee-Ryan application to the Bar of this Court pending Olevia Boykin application forthcoming Ryan Downer application pending CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Suite 800 Washington, D.C. 20009 katie@civilrightscorps.org 610-931-7715
Attorneys for Plaintiffs

Case 8:20-cv-01028-PX Document 3-2 Filed 04/21/20 Page 1 of 140
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

KEITH SETH, et al., Individually and on behalf of a class of similarly situated persons,
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections, et al.
Defendants-Respondents.

)

)

)

)

)

)

Case No.

)

)

)

)

)

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)

APPENDIX OF EXHIBITS FOR EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Case 8:20-cv-01028-PX Document 3-2 Filed 04/21/20 Page 2 of 140
Index of Exhibits

Exhibit A Exhibit B
Exhibit C
Exhibit D Exhibit E Exhibit F Exhibit G
Exhibit H Exhibit I

Order. Banks v. Booth, 1:20-CV-8849 (D. D. C. Apr. 19, 2020) Opinion and Order. Cameron v. Bouchard, 20-19049 (E.D. Mich. Apr. 17, 2020) Preliminary Injunction Order. Valentine v. Collier, 4:20-CV-1115 (S.D. Tex. Apr. 16, 2020) Order. Swain v. Junior, 1:20-CV-21457 (S.D. Fla. Apr. 7, 2020) Order. Malam v. Adducci, 20-10829 (E.D. Mich. Apr. 6, 2020) Order. Doe v. Barr, 20-CV-2141 (N.D. Cal. Apr. 12, 2020) Minute Order. Gray v. Cty. Of Riverside, 5:13-CV-0444 (C.D. Cal. Apr. 14, 2020) Order. Savino v. Souza, 20-CV-10617 (D. Mass. Apr. 4, 2020) Memorandum and Order. Jimenez v. Wolf, C.A. No. 18-10225 (D. Mass. Mar. 26, 2020)

Case 8:20-cv-01028-PX Document 3-2 Filed 04/21/20 Page 3 of 140
EXHIBIT A

CCaassee81:2:200-c-cvv-0-010082489-P-CXKKDoDcuomcuemnet n3t-248FiFleilded040/42/11/92/020PaPgaege4 1ofo1f430

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EDWARD BANKS, et al., Plaintiffs v.
QUINCY L. BOOTH, et al., Defendants

Civil Action No. 20-849(CKK)

ORDER (April 19, 2020)
For the reasons set forth in the accompanying Memorandum Opinion, it is, this 19th day of April, 2020, hereby
ORDERED that Plaintiffs’ [5] Motion for a Temporary Restraining Order is GRANTED IN PART AND DENIED IN PART. Specifically, the Court ORDERS the following relief:
In light of the medical surveillance and monitoring that is occurring currently in the quarantine units, Defendants shall ensure that the triage process associated with sick call requests on the non-quarantine units is expedited and reflects appropriate sensitivity to the wide variety of symptoms associated with COVID-19 disease. Correctional officers and other staff who are in contact with inmates should ensure that the medical staff are promptly informed about inmates who present with symptoms of COVID-19 and medical staff should respond to the housing unit on an expedited basis. Any inmate grievances that include allegations of delay in medical assessment should be prioritized and submitted to the DOC medical director immediately. Additionally, in light of the fact that the DOC is relying on inmates to self-report symptoms of COVID-19, Defendants shall provide better documentation as to the dates and times of sick calls and urgent care calls, the inmates’ reported symptoms, the dates and times the inmates are seen by medical professionals, and the outcomes to allow for better tracking of the response to inmates’ complaints of COVID-19 symptoms.
If the Defendants are not already doing so, they shall that ensure that cell restrictions are appropriately monitored, tracked, and corrective action is undertaken on an expedited basis if warranted.
In instances in which inmates are transferred from the intake unit to a different unit before the 14-day quarantine period expires, Defendants shall ensure that appropriate housing, surveillance and monitoring is afforded to the inmate in the receiving unit.
Defendants shall consult with public health professionals regarding strategies that can be implemented to strengthen the COVID-19-related education program for both staff and inmates. Moreover, Defendants shall explore appropriate supports that can be provided on an expedited basis to both staff and inmates who are living and working in an extremely stressful and highrisk environment and are at substantial risk of exposure.

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Defendants shall conduct additional staff training on the use of the non-touch, infrared thermometers consistent with manufacturer guidelines and provide guidance to staff regarding what to do when thermometers produce results that appear on their face to be inaccurate.
Defendants shall take immediate steps to provide consistent and reliable access to legal calls, personal telephone calls, daily showers, and clean clothing and clean linens to all inmates on isolation status.
Defendants shall ensure appropriate and consistent implementation of social distancing policies by addressing limitations in current staffing levels, supervisory oversight of line staff, and provide enhanced education related to the importance of social distancing.
Defendants shall communicate clear expectations, in writing, to correctional staff about the types of PPE required to perform the various supervision and operational functions that are conducted throughout the facility, including the PPE they should expect to be given on each shift for each specific category of post assignment; the proper donning, doffing and disposal of the PPE; and an explanation of the related rationale. Clear communication to staff regarding differences in risk exposures and providing consistent PPE over time could help lower anxiety levels among staff.
In addition, Defendants shall also ensure that all PPE issued is properly fitted. For example, N95 respirators must be properly fitted to ensure that they provide the intended protection. During the site visits that amici conducted, none of the correctional staff who were wearing N95 respirators in isolation units reported that they had been fitted for the respirators.
Defendants shall ensure that all DOC staff receive instruction on the proper disposal of PPE, and appropriate and accessible receptables for immediate disposal must be readily available. During the site visits, amici observed that receptables for disposal of PPE were not accessible on a consistent basis, including to staff assigned to isolation units at the CTF.
There is a critical need for the defendants to strengthen the environmental health and safety program at both the CDF and the CTF. It is recommended that the DOC immediately retain a registered sanitarian to oversee the environmental health and safety programs at both facilities and provide training so that cleaning tools and products are used properly. A registered sanitarian should bring the appropriate knowledge, oversight, and quality control necessary to mitigate at least some of the critical public health concerns that are evident in both facilities.
In addition to engaging a sanitarian, supervisory correctional staff must ensure that housing unit staff properly manage the work performed by the inmate detail workers. In order to accomplish that goal, correctional staff and detail workers require guidance from a sanitarian trained to oversee the facility’s environmental health program.
In addition to engaging a sanitarian, the defendants shall consider contracting for professional cleaning services on the non-secure side of the facility at least until a sanitarian is hired to bolster the existing environmental health and safety program at both facilities. Additionally, proper cleaning supplies that have been sanitized regularly shall be immediately provided to each unit, and a schedule for cleaning common areas and cells shall be established and enforced.
Defendants shall reduce the extent to which common spaces encourage inmates to congregate in close quarters (e.g., around a single television in a small enclosed area, or next to one another in order to use telephones that are mounted closer than six feet apart). The
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effectiveness of this strategy would increase if Defendants were to consistently apply their stated policy of allowing no more than small groups of inmates out of their cells at any given time. Whatever strategies Defendants adopt, increased active and direct supervision will be required by both housing unit correctional officers and the midlevel managers responsible for overseeing and supporting the correctional officers assigned to housing units. Enforcing social distancing standards as a public health measure is a new responsibility for correctional staff and they must be supported as they adjust to this new role. Moreover, Defendants shall assess whether any additional security staff are needed to provide appropriate supervision, on a unit-by-unit basis, taking into consideration the layout of the housing units, the number of inmates housed on the units, and the security designation of the unit, in order to enforce social distancing policies.
Finally, Defendants shall ensure that all inmates, including those on isolation, have access to confidential, unmonitored legal calls of a duration sufficient to discuss legal matters.
As relief, the Court has adopted in general the recommendations set out by the amici in their final report. The Court has not set out each detail in the report which supports these recommendations. However, the Court expects Defendants to address those specific deficiencies set out in the final report, which support the recommendations, and to rectify those deficiencies.
SO ORDERED. /s/
COLLEEN KOLLAR-KOTELLY United States District Judge
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EXHIBIT

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON, RICHARD BRIGGS, RAJ LEE, MICHAEL CAMERON, and MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,

Plaintiffs, v.

Civil Case No. 20-10949 Honorable Linda V. Parker

MICHAEL BOUCHARD, CURTIS D. CHILDS, and OAKLAND COUNTY,

Defendants. ____________________________________/

OPINION AND ORDER

On this date, Plaintiffs filed a putative class action complaint, raising grave

concerns about the conditions in the Oakland County Jail in the face of the novel

coronavirus (COVID-19) pandemic. Plaintiffs are Oakland County Jail pretrial or

convicted detainees. Plaintiffs seek to represent a class of all current and future

Oakland County Jail (hereafter also “Jail”) detainees, as well as the following sub-

classes:

x The First Subclass (“Pre-trial Subclass”) is defined as “All current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who have not yet been convicted of the offense for which they are currently held in the Jail.”

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x The Second Subclass (“Post-conviction Subclass”) is defined as “All current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who have been sentenced to serve time in the Jail or who are otherwise in the Jail as the result of an offense for which they have already been convicted.”
x The Third Subclass (“Medically-Vulnerable Subclass”) is defined as: “All members of the Jail class who are also over the age of fifty or who, regardless of age, experience an underlying medical condition that places them at particular risk of serious illness or death from COVID-19 ….”
Plaintiffs also filed an emergency motion for temporary restraining order (“TRO”)
in which they ask the Court to order (a) the release of members of the Medically-
Vulnerable Subclass pending briefing and argument and (b) the undertaking of
certain measures to improve hygiene and safety at the Jail.
Having reviewed Plaintiffs’ Complaint and pending motion, the Court is
granting at this time Plaintiffs’ request for a TRO requiring Defendants to utilize
the measures set forth below to improve hygiene and safety at the Jail.1 The Court
is without sufficient information to rule on Plaintiffs’ request to release all
members of the Medically-Vulnerable Subclass and is scheduling a hearing to
1 The Court is not imposing all of the measures requested by Plaintiffs and will discuss those measures that are omitted with the parties during the hearing scheduled infra.
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address that request. The Court has considered the following factors in deciding whether to issue the TRO:
(1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent a stay, (3) whether granting the stay would cause substantial harm to others, and (4) whether the public interest would be served by granting the stay. Ohio Republic Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008). The Court finds that Plaintiffs are likely to succeed on the merits of their claim alleging that jail conditions violate their Eighth and Fourteenth Amendment rights. Plaintiffs’ allegations reflect that Oakland County has not imposed even the most basic safety measures recommended by health experts, the Centers for Disease Control and Prevention, and Michigan’s Governor to reduce the spread of COVID-19 in detention facilities. It cannot be disputed that COVID-19 poses a serious health risk to Plaintiffs and the putative class.2 Plaintiffs also are likely to suffer irreparable harm absent an injunction, as they face a heightened risk of contracting this life-threatening virus simply as incarcerated individuals and even more so without the imposition of these cautionary measures. Entering an injunction requiring Defendants to adopt the safety precautions set forth below poses no harm to them other than potentially
2 A spread of the virus among incarcerated persons also poses a grave risk of harm to the jail employees with whom they interact.
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increased costs and energy, which are insufficient to justify a denial of Plaintiffs’
motion. See Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog,
945 F.2d 150, 154 (6th Cir. 1991). “[I]t is always in the public interest to prevent
the violation of a party’s constitutional rights.” G & V Lounge, Inc. v. Mich.
Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994).
Accordingly,
IT IS ORDERED that Defendants shall as soon as practicable, or at least
within ten (10) days of this Opinion and Order, undertake the following minimum
measures:
(1) Ensure that each incarcerated person receives, free of charge: (a) an individual supply of liquid hand soap and paper towels sufficient to allow regular hand washing and drying each day, and (b) an adequate supply of disinfectant hand wipes or disinfectant products effective against the COVID-19 virus for daily cleanings;
(2) Ensure that all incarcerated people have no-cost access to hand sanitizer containing at least 60% alcohol where permissible based on security restrictions;
(3) Provide access to showers and clean laundry, including clean personal towels on a regular basis, but at a minimum on a weekly basis;3
(4) Ensure that, to the fullest extent possible, all Jail staff wear personal protective equipment, including masks,
3 At the hearing, the Court will address whether it should set forth a specific frequency for these items after weighing regular Jail practices and any information reflecting the need for more frequency during the COVID-19 pandemic.
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when interacting with any person or when touching surfaces in cells or common areas;
(5) Ensure, to the fullest extent possible, that all Jail staff wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol both before and after touching any person or any surface in cells or common areas. Consider allowing staff to carry individual sized bottles while on duty;
(6) Establish protocol through which an incarcerated person may self-report symptoms of COVID-19 infection and to evaluate those symptoms, including temperature monitoring;
(7) Conduct immediate testing for anyone displaying known symptoms of COVID-19;
(8) Provide adequate spacing of six feet or more between people incarcerated, to the maximum extent possible, so that social distancing can be accomplished;
(9) Ensure that individuals identified as having COVID19, with symptoms of COVID-19, or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a non-punitive setting, with continued access to showers, mental health services, reading materials, phone and video calling with loved ones, communications with counsel, and personal property (to the extent reasonable and necessary to the inmate’s physical and mental well-being). Such individuals shall remain in quarantine and wear face masks when interacting with other individuals until they are no longer at risk of infecting other people;
(10) Respond to all COVID-19 related emergencies (as defined by the medical community) within an hour;
(11) Provide sufficient disinfecting supplies, without cost, so incarcerated people can clean high-touch areas or
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items (including, but not limited to, phones and headphones) between each use;
(12) Effectively communicate to all people incarcerated, including low-literacy and non-English-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection;
(13) Train all staff regarding measures to identify inmates with COVID-19, measures to reduce transmission, and the Jail’s policies and procedures during this crisis (including those measures contained in this Order);
(14) Refrain from charging medical co-pays before treatment is provided to those experiencing COVID-19related symptoms, including testing;4
(15) Waive all charges for medical grievances during this pandemic until further order of the Court5;
(16) Cease and desist (a) all use of punitive transfers or threats of transfers to areas of the jail that have higher infection rates (or any other form of threat involving increased exposure to infection) for any infraction whatsoever; and (b) all retaliation in any form, against class members who raise concerns either formally or informally about the health and safety conditions in the Jail.6
4 The Court will consider at the hearing whether co-pays may be charged if payment is not required before treatment or testing. 5 The Court will address at the hearing whether charges for medical grievances should be allowed if payment is not required before a grievance is accepted and addressed. 6 At the hearing, the Court will address Plaintiffs’ request for an injunction restraining Defendants from taking “all punitive measures … against class
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IT IS FURTHER ORDERED, that Defendants shall take the following measures in preparation for the TRO hearing:
(1) Promptly provide Plaintiffs and the Court with a list of all individuals who are members of the MedicallyVulnerable Subclass as defined in paragraph 94 of Plaintiffs’ Complaint, which includes their location, charge and bond status; and, (2) Promptly thereafter provide Plaintiffs and the Court with a list of any individuals in the Medically-Vulnerable Subclass who Defendants object to releasing and the basis for that objection. IT IS FURTHER ORDERED that the parties shall appear before the undersigned for a telephonic conference call on Monday, April 20, 2020 at 11:00 a.m., and for a telephonic hearing on Friday, April 24, 2020 at 11:00 a.m. For both the conference and hearing, Counsel shall call the Court’s toll-free conference line at 1-888-808-6929 and use Access Code 8141695. IT IS SO ORDERED.
s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE Dated: April 17, 2020
members who decline to engage in labor on the grounds that such labor represents a threat to their health and safety or the health and safety of other class members.”
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EXHIBIT

CaCsaes4e:280:2-0cv-c-0v-101110528D-PoXcumDeonctu4m0enFt 3ile-2d

oFnil0e4d/1064//2201/i2n0TXPSaDge

P16agoefUn11i4teo0df

5
States

District

Court

Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS

April 16, 2020
David J. Bradley, Clerk

HOUSTON DIVISION

LADDY CURTIS VALENTINE, et al,
Plaintiffs, VS.
BRYAN COLLIER, et al,
Defendants.

§ § § § CIVIL ACTION NO. 4:20-CV-1115 § § § §

PRELIMINARY INJUNCTION ORDER

This matter came for hearing before the Court on April 16, 2020, upon the Application of

Plaintiffs Laddy Curtis Valentine and Richard Elvin King, individually and on behalf of those

similarly situated, for injunctive relief. At the hearing, the Court heard testimony from Plaintiffs’

witnesses and argument from counsel for both parties. The Court notes that the Defendants chose

to present no live testimony to controvert Plaintiffs’ evidence. After consideration of the Class

Action Complaint, the attached evidence, the testimony and evidence at the April 16, 2020 hearing,

and any arguments of counsel, the Court finds that Plaintiffs are substantially likely to succeed on

the merits of the underlying litigation; that, in the absence of a preliminary injunction, Plaintiffs

will suffer immediate irreparable injury for which there is no adequate remedy at law, in that they

will face a high risk of serious illness or death from exposure to COVID-19; that the issuance of a

preliminary injunction will not inflict greater or undue injury upon those restrained or third parties;

and the issuance of a preliminary injunction order will serve the public interest and maintain the

status quo. The Court further finds the relief below is narrowly drawn, is consistent with Center

for Disease Control (CDC) guidelines, extends no further than necessary to correct the harm the

Court finds requires preliminary relief, and is the least intrusive means necessary to correct the

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harm the Court finds requires preliminary relief. The Court has given substantial weight to any adverse impact on public safety and the operation of the criminal justice system caused by the preliminary relief and shall respect the principles of comity in tailoring this preliminary relief. See 18 U.S.C. § 3626(a)(2).
Plaintiffs’ Application for a Temporary Restraining Order is therefore GRANTED as a preliminary injunction, and it is ORDERED, pursuant to Federal Rule of Civil Procedure 65, that all Defendants, their agents, representatives, and all persons or entities acting in concert with them are enjoined as follows:
• Provide Plaintiffs and the class members with unrestricted access to hand soap and disposable hand towels to facilitate handwashing.
• Provide Plaintiffs and the class members with access to hand sanitizer that contains at least 60% alcohol in the housing areas, cafeteria, clinic, commissary line, pill line, and laundry exchange.
• Provide Plaintiffs and the class members with access to tissues, or if tissues are not available, additional toilet paper above their normal allotment.
• Provide cleaning supplies for each housing area, including bleach-based cleaning agents and CDC-recommended disinfectants in sufficient quantities to facilitate frequent cleaning, including in quantities sufficient for each inmate to clean and disinfect the floor and all surfaces of his own housing cubicle, and provide new gloves and masks for each inmate during each time they are cleaning or performing janitorial services.
• Provide all inmates and staff members with masks. If TDCJ chooses to provide inmates with cotton masks, such masks must be laundered regularly.

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• Require common surfaces in housing areas, bathrooms, and the dining hall to be cleaned every thirty minutes from 7 a.m. to 10 p.m. with bleach-based cleaning agents, including table tops, telephones, door handles, and restroom fixtures.
• Increase regular cleaning and disinfecting of all common areas and surfaces, including common-use items such as television controls, books, and gym and sports equipment.
• Institute a prohibition on new prisoners entering the Pack Unit for the duration of the pandemic. In the alternative, test all new prisoners entering the Pack Unit for COVID-19 or place all new prisoners in quarantine for 14 days if no COVID-19 tests are available.
• Limit transportation of Pack Unit inmates out of the prison to transportation involving immediately necessary medical appointments and release from custody.
• For transportation necessary for prisoners to receive medical treatment or be released, CDC-recommended social distancing requirements should be strictly enforced in TDCJ buses and vans.
• Post signage and information in common areas that provides: (i) general updates and information about the COVID-19 pandemic; (ii) information on how inmates can protect themselves from contracting COVID-19; and (iii) instructions on how to properly wash hands. Among other locations, all signage must be posted in every housing area and above every sink.
• Educate inmates on the COVID-19 pandemic by providing information about the COVID19 pandemic, COVID-19 symptoms, COVID-19 transmission, and how to protect oneself from COVID-19. A TDCJ staff person must give an oral presentation or show an educational video with the above-listed information to all inmates, and give all inmates an opportunity to ask questions. Inmates should be provided physical handouts containing

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COVID-19 educational information, such as the CDC’s “Share Facts About COVID-19” fact sheet already in TDCJ’s possession. • TDCJ must also orally inform all inmates that co-pays for medical treatment are suspended for the duration of the pandemic, and encourage all inmates to seek treatment if they are feeling ill. • TDCJ must, within three (3) days, provide the Plaintiffs and the Court with a detailed plan to test all Pack Unit inmates for COVID-19, prioritizing those who are members of Dorm A and of vulnerable populations that are the most at-risk for serious illness or death from exposure to COVID-19. For any inmates who test positive, TDCJ shall provide a plan to quarantine them while minimizing their exposure to inmates who test negative. TDCJ must also provide a plan for testing all staff who will continue to enter the Pack Unit, and for any staff that test positive, provide a plan for minimizing inmates’ exposure to staff who have tested positive. The Defendants have not sought a bond and the Court finds and holds that no security need be posted. See Fed. R. Civ. P. 65(c); Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996) (“In holding that the amount of security required pursuant to Rule 65(c) is a matter for the discretion of the trial court, we have ruled that the court may elect to require no security at all.” (internal quotation marks omitted)); see also A.T.N. Indus., Inc. v. Gross, 632 F. App’x 185, 192 (5th Cir. 2015) (holding that, under Rule 65(c), a court may elect to require no security at all as the amount it considers to be proper). The Court will issue a memorandum and order setting forth the grounds for this preliminary injunction. IT IS SO ORDERED.

CaCsaes4e:280:2-0cv-c-0v-101110528D-PoXcumDeonctu4m0enFt 3ile-2d oFnil0e4d/1064//2201/i2n0TXPSaDge P20agoef 154o0f 5 SIGNED at Houston, Texas on this the 16th day of April, 2020.
KEITH P. ELLISON UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No.: 1:20-cv-21457-KMW ANTHONY SWAIN, et al.,
Plaintiffs, v. DANIEL JUNIOR, et al.,
Defendants. /
ORDER GRANTING IN PART PLAINTIFFS’ EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER
THIS MATTER is before the Court on Plaintiffs’ Motion for Temporary Restraining Order (DE 3). Defendants oppose the motion. To obtain either a temporary injunction or a preliminary injunction, a party must demonstrate that: “(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016). Based on the Court’s review of the record, relevant case law, and the Parties’ representations during the telephonic status conferences held April 6, 2020 and April 7, 2020, Plaintiffs have met that standard.
Accordingly, after consultation with the Parties, and for the reasons cited at the telephonic status conferences held April 6, 2020 and April 7, 2020 with all Parties present, it is ORDERED and ADJUDGED that Plaintiffs’ Motion for Temporary Restraining Order (DE 3) is GRANTED IN PART as follows:
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1. It is ORDERED that by April 9, 2020, Defendants shall file under seal a list of all individuals who are currently detained at Metro West Detention Facility and who meet any of the criteria in paragraph three. This list shall be filed under seal to protect the confidential health information of those individuals and shall remain under seal pending further order by this Court.
2. It is further ORDERED that by April 9, 2020, Defendants shall file a notice describing the particular measures being employed to protect these individuals from the risk of COVID-19.1
3. The list of individuals shall include all of those currently detained at Metro West Detention Facility who meet any of the following criteria:
• Are 60 years of age or older; • Have chronic respiratory disease, including lung disease, moderate to
severe asthma, or chronic obstructive pulmonary disease (e.g. bronchitis or emphysema); • Have heart disease, such as congenital heart disease, congestive heart failure, or coronary artery disease; • Have chronic liver or kidney disease (including hepatitis and conditions requiring dialysis); • Have diabetes; • Have epilepsy; • Have diagnosed hypertension;
1 One of the lists required under Paragraph 1 or 2 shall be filed with the Court by 6:00 PM on April 9, 2020 and the other shall be filed by midnight on April 9, 2020.
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• Have a compromised immune system (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease);
• Have sickle cell disease; and/or • Are or have been pregnant within the last two weeks. 4. It is further ORDERED that Defendants shall take the following actions at the Metro West Detention Center: • Effectively communicate to all people incarcerated at Metro West Detention
Center, including low-literacy and non-English-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection; • To the maximum extent possible considering Metro West Detention Center’s current population level, provide adequate spacing of six feet or more between people incarcerated at Metro West so that social distancing can be accomplished; • Ensure that each incarcerated person receives, free of charge: (1) an individual supply of soap, preferably liquid as recommended by the CDC, sufficient to allow frequent hand washing each day, (2) hand drying machines, or disposable paper towels as recommended by the CDC, and individual towels, sufficient for daily use (3) an adequate supply of disinfectant products effective against the virus that causes COVID-19 for daily cleanings; and (4) an adequate supply of toilet paper sufficient for daily
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use; • Provide reasonable access to showers and to clean laundry; • Require that all MDCR staff wear personal protective equipment, including
masks, and gloves when physically interacting with any person and require that, absent extraordinary or unusual circumstances, a new pair of gloves is worn each time MDCR staff touch a different person; and require all inmate workers who are cleaning facilities or preparing food to follow this same protocol; • Require that all MDCR staff regularly wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol; • Ensure access to proper testing for anyone displaying known symptoms of COVID-19 in accordance with CDC guidelines; • Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined, with continued access to showers, mental health services, phone calling with family, and communications with counsel; individuals identified as having COVID-19 or having been exposed to COVID-19 shall not be placed in cells normally used for disciplinary confinement absent emergency circumstances; • Respond to all emergency (as defined by the medical community) requests for medical attention as soon as possible; • Provide sufficient disinfecting supplies consistent with CDC recommendations in each housing unit, free of charge, so incarcerated
4

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people can clean high-touch areas or any other items in the unit between each use; • Waive all medical co-pays for those experiencing COVID-19-related symptoms; and • Waive all charges for medical grievances during this health crisis. 5. This Temporary Order is valid for a limited period of 14 days or until further order of this Court, or until Defendants demonstrate that they have substantially complied with this Order. The Court’s ruling is subject to change based on a more fully developed record at preliminary injunction proceedings. 6. For purposes of this Order, the Court accepted the allegations in the Complaint and its attachments as true without briefing or evidentiary submissions by Defendants; this Order does not make a finding of wrongdoing on the part of any defendant and no defendant has waived any defenses to this action. 7. If Defendants have not yet been served in accordance with Federal Rule of Civil Procedure 4, Plaintiffs shall immediately provide a copy of this Order to Defendants. 8. A telephonic hearing on Plaintiff’s Emergency Motion (DE 3) for Preliminary Injunction is SET for April 21, 2020 at 1:00 PM. 9. Defendants shall file a response (not exceeding 35 pages) to Plaintiff’s Emergency Motion (DE 3) by April 16, 2020 at 5:00 p.m. Defendants need not file responses to any other pleading or motions until further order of the Court. Plaintiffs may file a reply by April 20, 2020 at 12:00 p.m.
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Case 8:20-cv-01028-PX Document 3-2 Filed 04/21/20 Page 28 of 140
EXHIBIT

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Janet Malam,
Petitioner, v. Rebecca Adducci, et al.,

Case No. 20-10829
Judith E. Levy United States District Judge
Mag. Judge Anthony P. Patti

Respondents. ________________________________/
AMENDED OPINION AND ORDER GRANTING IN PART PETITIONER’S EMERGENCY APPLICATION FOR A TEMPORARY RESTRAINING ORDER [2]1 This is an emergency petition challenging Janet Malam’s
mandatory detention pursuant to 8 U.S.C. § 1226(c) because of danger posed to her by the COVID-19 pandemic. Petitioner claims that her continued detention violates her Fifth Amendment rights by exposing her to substantial risk of illness and death. She requests a temporary restraining order (TRO) requiring that Respondents release her on her

1 On April 6, 2020 the Court amended its April 5, 2020 Order to include additional terms of supervision.

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own recognizance and refrain from re-detaining her for the pendency of
her immigration proceedings.
For the foregoing reasons, the Court GRANTS IN PART this
emergency application for relief.
BACKGROUND
Petitioner Janet Malam, born in the United Kingdom, is a lawful
permanent resident. (ECF No. 1, PageID.3.) She was legally admitted to
the United States in 1967 at the age of four and is now fifty-six years old.
(Id.) Petitioner has been detained since March 4, 2020, in the Calhoun
County Correctional Facility2 in conjunction with removal proceedings at
the Detroit Immigration Court. (Id.) She brings suit against the following
Respondents: Rebecca Adducci, the Detroit District Director of United
2 The parties each refer to the Calhoun County Correctional Facility with different terminology. See Jail/Corrections Division, Calhoun County, https://www.calhouncountymi.gov/departments/sheriffs_office/jail.php (last visited Apr. 5, 2020) (“Calhoun County Correctional Facility”); Detention Facilities, U.S. Immigrations and Customs Enforcement, https://www.ice.gov/detentionfacility/calhoun-county-correctional-center (last visited Apr. 5, 2020) (“Calhoun County Correctional Center”); Calhoun County Jail, Google Maps, at https://www.google.com/maps/place/Calhoun+County+Jail/@42.3166565,85.1757947,15z/data=!4m2!3m1!1s0x0:0x4f8faa7bcca370c4?sa=X&ved=2ahUKEwiR wvHM3NHoAhUQmHIEHWeUCl4Q_BIwCnoECA4QCA (last visited Apr. 5, 2020) (“Calhoun County Jail”). The Court will refer to Petitioner’s current place of detention as the Calhoun County Correctional Facility or CCCF.
2

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States Immigration and Customs Enforcement (ICE); Matthew Albence, Deputy Director of ICE; Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security; William Barr, Attorney General of the United States; ICE; and Heidi Washington, Director of the Michigan Department of Corrections (MDOC). (Id.)
Petitioner alleges that she suffers from a number of health conditions, including: multiple sclerosis; bipolar disorder; pain; anemia; essential primary hypertension; hypothyroidism; chronic obstructive pulmonary disease; fibromyalgia; mild cognitive impairment; carpal tunnel syndrome; severe major depressive disorder; opioid addiction; nicotine dependence; and polyneuropathy. (ECF No. 1, PageID.7.) According to Petitioner’s extensive medical records, these diagnoses are current and accurate as of March 3, 2020. (ECF No. 1-4, PageID.31.)
Because Petitioner has committed two or more crimes involving moral turpitude, her detention is mandatory pursuant to 28 U.S.C. § 1226(c).3 On March 30, 2020, Petitioner filed a petition requesting
3 Petitioner does not specify the nature of these crimes in either her petition or this application. In their response to Petitioner’s application for a temporary restraining order, Respondents note that Petitioner’s charge of removal is based on a 2003 Michigan state conviction of Larceny from the Person, Mich. Comp. Laws § 750.737, a 2008 conviction of Larceny $100 or Less in violation of a Taylor City,
3

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emergency relief in either one of two forms: a writ of habeas corpus or an injunction “ordering Defendants to immediately release [Petitioner], with appropriate precautionary public health measures, on the grounds that her continued detention violates the Due Process Clause [of the Fifth and Fourteenth Amendments].” (Id. at PageID.17.) Petitioner simultaneously filed an Application for Temporary Restraining Order requesting that the Court order Petitioner’s release during the pendency of her immigration proceedings due to the substantial risk to her health posed by COVID-19 as a result of Petitioner’s continued detention in the enclosed group environment endemic to the Calhoun County Correctional Facility. (ECF No. 2.)
For the reasons stated below, the Court GRANTS Petitioner’s application for a temporary restraining order requiring her immediate release from detention for the duration of the COVID-19 State of Emergency in Michigan or until further Court order. LAW AND ANALYSIS
Michigan ordinance, a 2009 conviction of Retail Fraud in violation of a City of Flat Rock, Michigan ordinance, a 2011 conviction of Attempted Simple Larceny in violation of a City of Tyler, Michigan ordinance, and a 2012 conviction of Retail Fraud 3rd Degree $200 or less in violation of a City of Southgate, Michigan ordinance. (ECF No. 11-1, PageID.192.)
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I. Jurisdiction “Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress.” Hamama v. Adducci, 912 F.3d 869, 874 (6th Cir. 2018) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). All courts have an “independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (citing Ruhgras AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). A court must determine whether it has jurisdiction before deciding a cause of action. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998). Petitioner pleads that “[t]he Court has subject matter jurisdiction over this case pursuant to Article I, § 9, cl. 2 of the U.S. Constitution (Suspension Clause); the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution; 28 U.S.C. § 1331 (federal question); 28 U.S.C. §1651 (All Writs Act); and 28 U.S.C. § 2241 (habeas corpus).” (ECF No. 1, PageID.5.) The Court has jurisdiction to adjudicate Petitioner’s claims under 28 U.S.C. § 2241. Moreover, even if
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Petitioner’s claims could not be heard under 28 U.S.C. § 2241, 28 U.S.C. § 1331 provides an independent source of jurisdiction.
A. 28 U.S.C. § 2241 Jurisdiction 28 U.S.C. § 2241 provides a district court with jurisdiction over petitions for habeas corpus where a petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). See INS v. St. Cyr, 533 U.S. 289, 298 (2001) (recognizing 28 U.S.C. § 2241 as a jurisdictional statute). For over 100 years, habeas corpus has been recognized as the vehicle through which noncitizens may challenge the fact of their detention. See Chin Yow v. U.S.¸ 208 U.S. 8, 13 (1908) (“Habeas corpus is the usual remedy for unlawful imprisonment.”) In 2001, the Supreme Court recognized the continued viability of the writ in cases involving the detention of noncitizens: “§ 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention.” Zadvydas v. Davis, 533 U.S. 678, 688 (2001). In 2018, the Court ruled on the merits of a habeas petition challenging the validity of pre-removal detention. Jennings v. Rodriguez, 138 S. Ct. 830 (2018).
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Respondents claim, citing Luedtke v. Berkebile, that the Court lacks jurisdiction to grant habeas relief because 28 U.S.C. § 2241 “is not the proper vehicle for a prisoner to challenge conditions of confinement.” Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013). Though the Supreme Court has left as an open question “the reach of the writ with respect to claims of unlawful conditions of treatment or confinement,” Boumedienne v. Bush, 553 U.S. 732, 792 (2006), the Sixth Circuit, conversely, has held that “a § 2241 habeas petition is not the appropriate vehicle for challenging the conditions of . . . confinement.” Velasco v. Lamanna, 16 F. App’x 311, 314 (6th Cir. 2001). In 2018, the Sixth Circuit reiterated this holding, affirming a district court that dismissed a § 2241 petition raising an Eighth Amendment challenge to subpar prison conditions because such a claim must be brought in a civil-rights action such as one under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Solano-Moreta v. Fed. Bureau of Prisons, No. 17-1019, 2018 WL 6982510 (6th Cir. Sep. 24, 2018); but see Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) (“Habeas corpus tests not only the fact but also the form of detention.”) (internal citation
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omitted); Roba v. U.S., 604 F.2d 215 (2d Cir. 1979) (holding that § 2241 petition may be used to challenge conditions of confinement).
The Respondents argue that “there is no dispute that Petitioner brings a challenge to the conditions of her confinement.” (ECF No. 11, PageID.175.) On its face, the application appears to concern Petitioner’s conditions of confinement. Petitioner titles her claim for relief: “Freedom from Cruel Treatment and Conditions of Confinement.” (ECF No. 1, PageID.16.) But Petitioner may nonetheless bring her claim under 28 U.S.C. § 2241 because she seeks immediate release from confinement as a result of there being no conditions of confinement sufficient to prevent irreparable constitutional injury under the facts of her case.
Supreme Court and Sixth Circuit precedent support the conclusion that where a petitioner claims no set of conditions would be sufficient to protect her constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable in habeas. In Nelson v. Campbell, the Supreme Court held that a death-row inmate’s challenge to the method of his upcoming execution constituted a challenge to the conditions—not the fact or duration—of his execution, and therefore his claim fell outside the “core”
8

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of habeas corpus. 541 U.S. 637, 644-45 (2004). However, the Court speculated that if the challenged method “were a statutorily mandated part of the lethal injection protocol, or if as a factual matter petitioner were unable or unwilling to concede acceptable alternatives,” there would be a “stronger argument that success on the merits, coupled with injunctive relief, would call into question the death sentence itself,” bringing the claim into the core of habeas corpus. Id. at 645. In Adams v. Bradshaw, the Sixth Circuit relied on Nelson to uphold habeas jurisdiction over a claim where a petitioner challenged the method of his execution but did not concede that any acceptable alternative existed. 644 F.3d 481, 483 (6th Cir. 2011) (“Adams has not conceded the existence of an acceptable alternative procedure. . . . Thus, Adams's lethal-injection claim, if successful, could render his death sentence effectively invalid.”) Here, Petitioner has not conceded the existence of acceptable alternative conditions of her confinement; her Fifth Amendment claim, if successful, would render her continued detention invalid.
In contrast to this case, claims which the Sixth Circuit has held noncognizable in habeas are those in which the petitioner seeks relief other than release from custody: See Solano-Moreta, 2018 WL 6982510,
9

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at *1 (seeking transfer); Luedtke v. Berkebile, 704 F.3d 465, 465–66 (6th Cir. 2013) (challenge to lack of compensation and conditions of work performed in prison); Hodges v. Bell, 170 F. App’x 389, 390 (6th Cir. 2006) (seeking amelioration of conditions or transfer to mental health facility); Sullivan v. United States, 90 Fed. App’x 862, 862 (6th Cir. 2004) (seeking medical treatment in prison); Lutz v. Hemingway, 476 F.Supp. 2d 715, 718 (E.D. Mich. 2007) (seeking restoration of mail privileges in prison); see also Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004) (seeking transfer). Indeed, in Preiser v. Rodriguez, the Supreme Court distinguished conditions of confinement claims from claims seeking immediate or speedier release. 411 U.S. 475, 500 (1973) (distinguishing habeas case seeking good-time credits from § 1983 conditions of confinement cases on the grounds that “none of the state prisoners in those cases was challenging the fact or duration of his physical confinement itself, and none was seeking immediate release or a speedier release from that confinement—the heart of habeas corpus.”)
Although Petitioner here titles her claim for relief “Freedom from Cruel Treatment and Conditions of Confinement,” her Petition is a challenge to the continued validity of her confinement, regardless of its
10

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conditions. Petitioner argues that the only adequate relief is her release from confinement. As Petitioner explains,
[S]ocial distancing and hygiene measures [are] Janet’s only defense against COVID-19. Those protective measures are exceedingly difficult, if not impossible, in the environment of an immigration detention center, where Janet shares toilets, sinks, phones, and showers, eats in communal spaces, and is in close contact with the many other detainees and officers.
(ECF No. 1, PageID.16.) At the Court’s March 31, 2020 status conference for this case, counsel for Respondents conceded that social distancing between prisoners of at least six feet would be impossible at the Calhoun County Correctional Facility. This concession supports the conclusion of multiple doctors and public health experts: that “[t]he only viable public health strategy available is risk mitigation. . . . [T]he public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety” (ECF No. 6-1, PageID.87 (Declaration of Infectious Disease Epidemiologist Joseph Amon)); the only way to “prevent serious illness including death” in ICE facilities is to “release all people with risk factors.” (ECF No. 20-3, PageID.374 (Declaration of Dr. Robert B. Greifingert).)
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In this case, Petitioner does not take issue with the steps taken at the Calhoun County Correctional Facility to mitigate the risk of detainees contracting COVID-19. Rather, she says that no matter what steps are taken, due to her underlying serious health conditions, there is no communal holding facility where she could be incarcerated during the Covid-19 pandemic that would be constitutional. Petitioner’s claim must therefore be considered as a challenge to the continued validity of confinement itself. Accordingly, Petitioner’s claim is properly brought under 28 U.S.C. § 2241, and the Court has jurisdiction.
B. 28 U.S.C. § 1331 Jurisdiction Even if the Court were to lack jurisdiction under 28 U.S.C. § 2241, the Fifth Amendment provides Petitioner with an implied cause of action, and thus 28 U.S.C. § 1331 would offer an independent source of jurisdiction. 28 U.S.C. § 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Petitioner properly framed her pleading as a civil rights action “[i]n the alternative.” In addition to her request for a writ of habeas corpus, Petitioner requests “injunctive relief
12

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ordering Defendants to immediately release Janet, with appropriate precautionary public health measures, on the grounds that her continued detention violates the Due Process Clause.” (ECF No. 1, PageID.17.) She titles her single claim for relief “Violation of Fifth Amendment Right to Substantive and Procedural Due Process (Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement.” (Id. at PageID.16.)
Should Petitioner’s habeas petition fail on jurisdictional grounds, the Fifth Amendment provides Petitioner with an implied cause of action, and accordingly 28 U.S.C. 1331 would vest the Court with jurisdiction. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court first upheld the proposition that the Constitution itself provided an implied cause of action for claims against federal officials. 403 U.S. at 388. In 2017, the Supreme Court held that federal courts should not extend a Bivens remedy into new contexts if there exist any “special factors counseling hesitation.” Ziglar v. Abassi, 137 S.Ct. 1843, 1857 (2017). However, there is no corresponding limitation on the Constitution as a cause of action to seek injunctive or other equitable relief. See Ziglar, 137 S. Ct. at 1862 (declining to extend
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Bivens to conditions of confinement claim, but noting that “Respondents . . . challenge large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners. To address those kinds of decisions, detainees may seek injunctive relief.”). Instead, there is a “presumed availability of federal equitable relief against threatened invasions of constitutional interests.” Hubbard v. E.P.A., 809 F.2d 1, 11 (D.C. Cir. 1986) (citing Bivens, 403 U.S. at 404 (Harlan, J., concurring)). Indeed, “the power of the federal courts to grant equitable relief for constitutional violations has long been established.” Mitchum v. Hurt, 73 F.3d 30, 35 (3d Cir. 1995). Here, Petitioner seeks only injunctive and declaratory relief. Accordingly, she may bring her claim directly under the Fifth Amendment, and the Court has jurisdiction to hear the claim under 28 U.S.C. § 1331.
At oral argument, counsel for Respondent raised the question of whether the United States may be entitled to sovereign immunity if Petitioner brought this case under the Fifth Amendment. Sovereign immunity does not apply in this instance, and even if it did, it has been statutorily waived. Federal courts may exercise the traditional powers of equity in cases within their jurisdiction to enjoin violations of
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constitutional rights by government officials. In Ex Parte Young, the Supreme Court first articulated the principle that state government officials may be sued for acting unconstitutionally, even if an ensuing injunction would bind the state. 209 U.S. at 123. In Philadelphia Co. v. Stimson, the Supreme Court recognized the applicability of that principle to suits against federal officials. 223 U.S. 605, 620 (1912) (“in case of an injury threatened by his illegal action, the officer cannot claim immunity from injunction process”). More recently, the Supreme Court affirmed this principle in Dalton v. Specter: “sovereign immunity would not shield an executive officer from suit if the officer acted either ‘unconstitutionally or beyond his statutory powers.’” 511 U.S. 462, 472 (1994) (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691 n.11 (1949)). In Malone v. Bowdoin, the Court called this principle the “constitutional exception to the doctrine of sovereign immunity.” 369 U.S. 643, 647 (1962). Petitioner here raises a constitutional challenge to her detention as the result of actions taken by Respondent Adducci, a federal officer. Sovereign immunity does not apply.
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Even absent this constitutional exception, the Administrative
Procedure Act (APA) provides a statutory waiver to any defense of
sovereign immunity. 5 U.S.C. § 702 provides that:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
In 2013, the Sixth Circuit recognized that this waiver extends beyond
suits brought under the APA:
[W]e now join all of our sister circuits who have done so in holding that § 702's waiver of sovereign immunity extends to all non-monetary claims against federal agencies and their officers sued in their official capacity, regardless of whether plaintiff seeks review of “agency action” or “final agency action” as set forth in § 704.
Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 673 (6th Cir. 2013); see
also Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996)
(“The APA’s waiver of sovereign immunity applies to any suit whether
under the APA or not.”). ICE is a federal agency, of which Respondent
Adducci is an officer or employee thereof. Petitioner challenges
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Respondent’s actions made in her official capacity. Accordingly, the APA provides a statutory waiver of sovereign immunity.
C. Petitioner’s Status as a Noncitizen Petitioner’s status as a noncitizen who is undergoing removal proceedings does not affect the Court’s jurisdiction to hear this case. Although several statutes limit a district court’s authority to hear cases in the immigration context, none apply here, as set forth below. 28 U.S.C. § 1252(b)(9) provides that judicial review of: all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§ 1225 and 1226] shall be available only in judicial review of a final order under this section.
28 U.S.C. § 1252(b)(9). Petitioner does not have a final order of removal. In Jennings v. Rodriguez, the Supreme Court held that 1252(b)(9) did not strip jurisdiction from courts to hear challenges to detention pending removal because detention was not an action taken to remove a noncitizen from the United States. 138 S. Ct. 830, 841 (2018). Petitioner challenges her continued detention; accordingly, 28 U.S.C. § 1252(b)(9) does not strip this Court of jurisdiction.
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8 U.S.C. § 1226(e) bars federal court review of any discretionary decision made by the Attorney General regarding detention, release, bond, or parole in an immigration case. However, in Demore v. Kim, 123 S. Ct. 1708, 1713–14 (2003), the Supreme Court held that § 1226(e) did not prevent noncitizens from raising constitutional challenges to mandatory detention under § 1226(c). Petitioner here raises a Fifth Amendment challenge to her continued mandatory detention under § 1226(c); thus, § 1226(e) does not prevent this Court from exercising jurisdiction.
Finally, 8 U.S.C. § 1252(f), titled “Limit on Injunctive Relief,” provides that:
[N]o court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
8 U.S.C. § 1252(f)(1). But as the Supreme Court recognized in Reno v. Amer.-Arab Anti-Discrim. Comm., “this ban does not extend to individual cases.” 525 U.S. 471, 481–82 (1999). Petitioner seeks individual relief.
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Therefore, 8 U.S.C. § 1252(f) does not affect this Court’s jurisdiction to enter injunctive or declaratory relief.
II. Proper Habeas Respondent Petitioner names as Respondents: Rebecca Adducci, the Detroit District Director of ICE; Matthew Albence, Deputy Director; Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security; William Parr, Attorney General of the United States; U.S. Immigration and Customs Enforcement; and Heidi Washington, Director of the Michigan Department of Corrections. Only Respondent Rebecca Adducci is properly named with respect to the petition for a writ of habeas corpus. “Historically, the question of who is ‘the custodian,’ and therefore the appropriate respondent in a habeas suit, depends primarily on who has power over the petitioner and . . . on the convenience of the parties and the court.” Roman v. Ashcroft, 340 F.3d 314, 319 (6th Cir. 2003) (citing Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998)). In Roman, the Sixth Circuit held that for habeas petitions in immigration contexts, “the INS District Director for the district where a detention facility is located ‘has power over’ alien habeas corpus petitioners.” Id. at 320. The court, in finding that the Attorney General was not a proper respondent
19

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for a noncitizen’s habeas claim and that a habeas claim could properly have only one respondent, reiterated 28 U.S.C. § 2243’s requirement that a writ of habeas corpus “shall be directed to the person having custody of the person detained.” Id. at 321. Michigan only has one ICE District, located in Detroit. See Enforcement and Removal Operations Field Offices, https://www.ice.gov/contact/ero. Accordingly, Rebecca Adducci, the Detroit District Director, is the proper Respondent for Petitioner’s request for a writ of habeas corpus.
III. Petitioner’s Application for a Temporary Restraining Order
Petitioner, along with her complaint, filed an emergency application for a temporary restraining order. (ECF No. 3.) In determining whether to grant such an order, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction. Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met,
20

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but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id. (internal quotations omitted). “[P]reliminary injunctions are extraordinary and drastic remedies [] never awarded as of right.” Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015). Nonetheless, each of the four factors weighs in Petitioner’s favor, and the Court grants Petitioner’s motion for a temporary restraining order.
A. Irreparable Harm Petitioner is likely to experience irreparable injury absent an injunction, both in the form of loss of health or life, and in the form of an invasion of her constitutional rights. 1. Loss of Health or Life from COVID-19 The ongoing COVID-19 pandemic creates a high risk that absent an injunction by this Court, Petitioner will suffer irreparable harm in the form of loss of health or life as a result of contracting the COVID-19 virus. On March 22, 2020, the Governor of Michigan issued the following statement: “The novel coronavirus (COVID-19) is a respiratory disease
21

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that can result in serious illness or death. It is caused by a new strain of

coronavirus not previously identified in humans and easily spread from

person to person. There is currently no approved vaccine or antiviral

treatment for this disease.” Executive Order, No. 2020-20 (Mar. 22,

2020).

Since March 4, 2020, the date of Petitioner’s detention at the

Calhoun County Correctional Facility, the exceptionally dangerous

nature of the COVID-19 pandemic has become apparent. On March 10,

2020, the Governor of Michigan announced the state’s first two cases of

COVID-19 and simultaneously declared a State of Emergency. Executive

Order, No. 2020-4 (Mar. 10, 2020). The number of new cases then began

to grow exponentially. As of April 5, 2020, there are now 15,718 confirmed

cases of COVID-19 and 617 known related deaths, with 238 confirmed

cases within the Michigan Department of Corrections system specifically.

See

Coronavirus,

Michigan.gov,

https://www.michigan.gov/coronavirus/0,9753,7-406-98163-520743--

,00.html. COVID-19 has a high risk of transmission, and the number and

22

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rate of confirmed cases indicate broad community spread.4 Executive Order, No. 2020-20 (Mar. 22, 2020). Nationally, ICE detention facilities across our country are experiencing the same thing. As of April 4, 2020, ICE has confirmed at least 13 cases of COVID-19 among immigration detainees and 7 cases among detention facility employees and personnel. ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/coronavirus (updated Apr. 4, 2020 at 8:00pm).
On March 23, 2020, the Centers for Disease Control and Prevention (CDC) acknowledged that correctional and detention facilities “present[] unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.” Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control (Mar. 23, 2020),
4 Indeed, since the time of Respondent’s brief, the numbers have continued to grow. Respondent reported that, as of April 3, 2020, Calhoun County alone had 25 cases. (ECF No. 11, PageID.169) By the time the Court held oral argument later that day, that number had grown to 31, with 1 reported death. On April 5, the date of this Order, the number of confirmed cases is now 42, with 1 reported death. Coronavirus, https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html.
23

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https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html. [Hereinafter “CDC Guidance 3/23/2020”]. Specifically, the CDC noted that many detention conditions create a heightened risk of danger to detainees. These include: low capacity for patient volume, insufficient quarantine space, insufficient on-site medical staff, highly congregational environments, inability of most patients to leave the facility, and limited ability of incarcerated/detained persons to exercise effective disease prevention measures (e.g., social distancing and frequent handwashing). Id.
Though the CDC has recommended public health guidance for detention facilities, and though the Calhoun County Correctional Facility has indeed implemented measures designed to prevent spread of the disease, these measures are inadequate to sufficiently decrease the substantial likelihood that Petitioner will contract COVID-19. As prison officials are beginning to recognize around the country, even the most stringent precautionary measures—short of limiting the detained population itself—simply cannot protect detainees from the extremely high risk of contracting this unique and deadly disease. For example, on April 1, 2020, the Rikers Island jail complex’s chief physician
24

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acknowledged that “infections are soaring” despite the facility’s

“following Centers for Disease Control and Prevention guidelines and

having moved mountains to protect our patients.” Miranda Bryant,

Coronavirus Spread at Rikers is a ‘Public Health Disaster’, Says Jail’s

Top

Doctor,

The

Guardian

(Apr.

1,

2020),

https://www.theguardian.com/us-news/2020/apr/01/rikers-island-jail-

coronavirus-public-health-disaster. In the immigration context

specifically, despite Respondents’ argument that the federal government

has effectively incorporated appropriate and effective precautions,

medical experts at the Department of Homeland Security have warned

that detention confinement creates a “tinderbox scenario” where rapid

outbreak is extremely likely, and extremely likely to lead to deadly

results as resources dwindle on an exponential level. Catherine E.

Shoichet, Doctors Warn of ‘Tinderbox Scenario’ if Coronavirus Spreads in

ICE

Detention,

CNN

(Mar.

20,

2020),

https://www.cnn.com/2020/03/20/health/doctors-ice-detention-

coronavirus/index.html.

Petitioner is 56 years old and suffers from the following conditions,

almost all of which place her at an increased risk of a dire outcome from

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contracting the COVID-19 virus: multiple sclerosis, bipolar disorder, anemia, essential primary hypertension, hypothyroidism, chronic obstructive pulmonary disease, fibromyalgia, severe major depressive disorder, opioid addition, and polyneuropathy. (ECF No. 1-4, PageID.31.) See Centers for Disease Control, Groups at Higher Risk for Severe Illness, (Apr. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html (noting that “people of all ages with underlying medical conditions are at higher risk for severe illness, particularly if the underlying medical conditions are not well controlled”). Additionally, Respondents have confined Petitioner in an environment where she “shares toilets, sinks, phones, and showers, eats in communal spaces, and is in close contact with the many other detainees and officers.” (ECF No. 1, PageID.16.) Petitioner’s involuntary interaction with purportedly asymptomatic guards who rotate shifts is also a significant exposure factor. How COVID-19 Spreads, CDC (April 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-
26

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covidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2 Fcoronavirus%2F2019-ncov%2Fprepare%2Ftransmission.html.5
These are many of the conditions that the CDC has identified as being particularly likely to increase COVID-19 transmissions in detention facilities. CDC Guidance 3/23/2020. For these reasons, Petitioner’s confinement at the Calhoun County Correctional Facility renders her substantially likely to contract COVID-19, and Petitioner’s severe health conditions render her substantially likely to suffer irreparable harm or death as a result.
Respondents focus on one particular issue: whether Petitioner is more likely to contract COVID-19 if released than if she remains confined in their jail. Respondents acknowledge that “there is a health risk posed by COVID-19 and that Petitioner is in the category of people identified to be at higher risk for serious health consequences if she contracts COVID-
5 On April 3, 2020, after Petitioner filed her emergency application for a temporary restraining order, the CDC updated its guidance in light of new evidence of asymptomatic transmission of COVID-19 to recommend that all individuals wear cloth face coverings “in public settings where other social distancing measures are difficult to maintain.” Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant Community-Based Transmission, CDC (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-facecover.html.
27

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19.” (ECF No. 11, PageID.178.) Respondents also acknowledge that Petitioner “does not have to wait until she has COVID-19 to claim that the precautions taken to reduce exposure were insufficient.” (Id. at PageID.179.) Indeed, the crux of Respondents’ argument is not that COVID-19 does not pose a deadly threat to Petitioner if contracted. Rather, Respondents’ argument relies on the proposition that Petitioner does not have a substantial risk for exposure at the Calhoun County Correctional Facility, and her risk of exposure in the community may be greater. (Id. at PageID.178.)
To this end, Respondents posit the following: Petitioner has not established that she has either been exposed to COVID-19, or that her exposure is “imminent,” because there are currently no cases in the facility in which she is detained “and only 25 cases in the surrounding county.”6 (ECF No. 11, PageID.179.) Additionally, Respondents argue that their facility has implemented “numerous precautions to reduce the risk of exposure and spread of COVID-19,”7 and that even if Petitioner is
6 Hours later, due to the exponential nature of COVID-19’s spread, this statistic was already out of date. See supra fn.2.
7 Specifically, Respondents note that the ICE and CCCF precautions are as follows: tracking the disease, screening incoming detainees, isolating and testing
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at a “generalized risk” of contracting COVID-19, that does not mean that she is at a “substantial risk” for purposes of her constitutional claim. (Id. at PageID.179-180, citing Wooler v. Hickman Cty., 377 Fed. Appx. 502, 505 (6th Cir. 2010)).
Respondents’ arguments fail to address the stark reality of this particular global public health crisis. In the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a “generalized risk” is a “substantial risk” of catching the COVID-19 virus for any group of human beings in highly confined conditions, such as Petitioner within the CCCF facility. In acknowledgment of this simple truth, both the United States Attorney General and the Governor of Michigan have issued independent directives to consider early release for detainees who do not pose a public safety risk, as minimizing crowded populations is the only known way to mitigate spread of this pandemic. Prioritization of
symptomatic detainees, quarantining detainees who test positive, screening incoming staff, suspending in-person social visitation and limiting professional visitation to non-contact, increasing sanitation, educating all staff and detainees, providing detainees with toilet paper, personal soap, and disinfectants, and increasing handwashing stations. (ECF No. 11, PageID.172.)
29

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Home Confinement as Appropriate in Response to COVID-19 Pandemic, Att’y Gen. (Mar. 26, 2020); Executive Order, No. 2020-29 (COVID-19) (Mar. 26, 2020). Moreover, Petitioner’s risk of contracting COVID-19 outside of Respondents’ custody has no bearing on whether they have exposed her to the likelihood of irreparable harm. Though the Court commends Respondents for the steps they have taken to prevent spread of the disease, as prisons and courts around the country are beginning to recognize, such measures are insufficient to stem deadly prison outbreaks. See, e.g., New York City Board of Correction Calls for City to Begin Releasing People From Jail as Part of Public Health Response to COVID-19, N.Y.C. Bd. of Corr. (Mar. 17, 2020), https://www1.nyc.gov/assets/boc/downloads/pdf/News/2020.03.17%20%20Board%20of%20Correction%20Statement%20re%20Release.pdf (arguing that, despite the “heroic work” of Department of Correction and Correctional Health Services staff “to prevent the transmission of COVID-19 in the jails and maintain safe and humane operations, the City must drastically reduce the number of people in jail right now and limit new admissions to exceptional circumstances.”). Even the Calhoun County Correctional Facility’s additional measure of screening incoming
30

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shift workers for high temperatures is insufficient to stem the spread of disease, as COVID-19 spreads asymptomatically. How COVID-19 Spreads, CDC (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/howcovidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2 Fcoronavirus%2F2019-ncov%2Fprepare%2Ftransmission.html.
Accordingly, the Court concludes that Petitioner’s continued confinement at the Calhoun County Correctional Facility exposes her to a substantial risk of contracting COVID-19, which due to her specific underlying health conditions exposes her to a substantial risk of irreparable harm to her health or life.
2. Violation of Constitutional Rights Petitioner’s Fifth Amendment claim triggers a finding that Petitioner will suffer irreparable harm absent an injunction. Petitioner alleges that in “subjecting Janet to detention conditions that amount to punishment and that fail to ensure her safety and health,” Respondent is “subjecting [her] to a substantial risk of serious harm, in violation of [her] rights under the Due Process Clause.” (ECF No. 1, PageID.17.) The alleged violation of a constitutional right is sufficient for a court to find
31

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irreparable harm. See Overstreet v. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566, 578 (6th Cir. 2002) (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Covino v. Patrissi, 967 F.2d 73, 77; McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir. 1984) ; see also Rhinehart v. Scutt, 408 F. App’x 510, 514 (6th Cir. 2018) (suggesting that allegation of “continuing violation of . . . Eighth Amendment rights" would trigger a finding of irreparable harm). Below, the Court finds Petitioner is likely to succeed on the merits of this Fifth Amendment claim. Accordingly, “no further showing of irreparable injury is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”).
B. Likelihood of Success on the Merits Petitioner is likely to succeed on the merits of her claim that her continued confinement during the COVID-19 pandemic violates her Fifth Amendment rights. The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. U.S. Const. amend.
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V. The protection applies to “all ‘persons’ within the United States, including [noncitizens], whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). As it pertains to Petitioner, the Due Process Clause prohibits the government from imposing torture or cruel and unusual confinement conditions on non-convicted detainees. See Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt.”). This type of Fifth Amendment claim is analyzed “under the same rubric as Eighth Amendment claims brought by prisoners.” Villegas v. Metropolitan Government of Nashville, 709 F.3d 563, 568 (6th Cir. 2013).
Eighth Amendment claims require a showing of deliberate indifference, see Farmer v. Brennan, 511 U.S. 825, 835 (1994), which has both an objective and a subjective component. Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013) (citing Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)).
1. Objective Component The objective component is satisfied by showing that, “absent reasonable precautions, an inmate is exposed to a substantial risk of
33

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serious harm.” Richko v. Wayne Cty., 819 F.3d 907, 915 (6th Cir. 2016) (citing Amick v. Ohio Dep't of Rehab. & Corr., 521 Fed.Appx. 354, 361 (6th Cir.2013)). Respondents argue that the precautions they have taken at the Calhoun County Correctional Facility combined with the lack of a confirmed outbreak of COVID-19 at the facility show that Petitioner is unable to demonstrate she is at substantial risk of serious harm. (ECF No. 11, PageID.180.) Instead, Respondents argue that Petitioner merely has a “generalized risk” of contracting COVID-19, which is insufficient to prevail on a Fifth Amendment constitutional claim. (Id.) But as noted above, in Petitioner’s case, a generalized risk is a substantial risk.
As the Supreme Court explained in Helling v. McKinney, “[w]e have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” 509 U.S. 25, 33 (1993). “That the Eighth Amendment protects against future harm to inmates is not a novel proposition.” Id. “It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening
34

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condition in their prison on the ground that nothing yet had happened to them.” Id.
Respondents attempt to distinguish this case from Helling on the grounds that the Petitioner in Helling alleged a sufficiently imminent danger from “actual exposure to high levels of cigarette smoke because his former cellmate was a five-pack a day smoker.” (ECF No. 11, PageID.179 (citing Helling, 509 U.S. at 29).) Respondents argue that “Petitioner has not established that she either has been exposed to COVID-19, or that her exposure is “imminent.”” (Id.) But as the above analysis regarding the risk of irreparable injury to Petitioner demonstrates, the Respondents grievously underestimate the seriousness of the risk to Petitioner, in spite of precautionary measures and despite the lack of confirmed CCCF outbreak to date. The evergrowing number of COVID-19 outbreaks in prisons and detention facilities,8 despite a range of precautionary measures, demonstrates that
8 See, e.g., Ted Rod Roelofs, Coronavirus Cases Surge in Michigan’s Crowded Prisons, Bridge (Mar. 27, 2020), https://www.bridgemi.com/michigangovernment/coronavirus-cases-surge-michigans-crowded-prisons; Oregon Inmate in Salem Tests Positive for COVID-19, the First in the State Prison System, SalemReporter (Apr. 3, 2020), https://www.salemreporter.com/posts/2168/oregoninmate-in-salem-tests-positive-for-covid-19-the-first-in-the-state-prison-system (noting outbreak despite precautionary measures); Ames Alexander and Jessica
35

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the risk of a COVID-19 outbreak in Respondent’s facility is significant. Nor, given the percentage of asymptomatic COVID-19 cases and the virus’ incubation period of up to fourteen days, can Respondents reasonably assert, as they do, that there are no COVID-19 cases in CCCF; they can only allege that there are no confirmed cases. By the time a case is confirmed, it will almost certainly be too late to protect Petitioner’s constitutional rights. Petitioner, so long as she remains detained, is therefore exposed to a substantial risk of serious harm.
2. Subjective Component The subjective component is demonstrated by showing that “(1) the official being sued subjectively perceived facts from which to infer a substantial risk to the prisoner, (2) the official did in fact draw the inference, and (3) the official then disregarded that risk.” 819 F.3d at 915–16 (citing Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014)). “Because government officials do not readily admit the subjective

Banov, In NC Prisons, Five Employees and Four Inmates Have Now Tested Positive

for

COVID-19,

Charlotte

Observer

(Apr.

1,

2020),

https://www.charlotteobserver.com/news/coronavirus/article241675886.html;

Alexandra Kelley, Louisiana Prison Records Third Inmate Death as a Result of the

Coronavirus, The Hill (Apr. 1, 2020), https://thehill.com/changing-america/well-

being/prevention-cures/490839-louisiana-prison-records-third-inmate-death-as-a.

36

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component of this test, it may be demonstrated in the usual ways, including inference from circumstantial evidence. . . . ” Richko, 819 F.3d at 916 (citing Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009)). Additionally, “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842.
Respondents concede the COVID-19 risk to Petitioner: “The government does not dispute that there is a health risk posed by COVID19 and that Petitioner is in the category of people identified to be at higher risk for serious health consequences if she contracts COVID-19.” (ECF No. 11, PageID.178.) Rightfully so: the above analysis pertaining to the risk of irreparable harm reveals that the substantial risk to Petitioner is obvious. Farmer, 511 U.S. at 842.
Respondents instead argue that Calhoun County Correctional Facility’s precautionary measures preclude a finding of deliberate indifference because government officials cannot be said to have disregarded the risk to Petitioner. As noted above, officials at the Calhoun County Correctional Facility have taken a range of precautionary measures to protect against a potential outbreak. (See
37

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ECF No. 11-3.) But as Plaintiff’s pleadings and the above analysis regarding irreparable injury demonstrate, even with these precautionary measures, in light of Petitioner’s underlying health conditions, she is not ensured anything close to “reasonable safety.” Farmer, 511 U.S. at 844. (See ECF No. 6-3, PageID.112 (Declaration of Doctor Golob stating, “[V]ulnerable people, people over the age of 50 and people of any age with lung disease . . . living in an institutional setting . . . are at grave risk of severe illness and death from COVID-19.”); ECF No. 6-1, PageID.87 (Declaration of Infectious Disease Epidemiologist Joseph Amon, stating “The only viable public health strategy available is risk mitigation. . . . [T]he public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety.”).) Based on the record before the Court, the only reasonable response by Respondents is the release of Petitioner; any other response demonstrates a disregard of the specific, severe, and life-threatening risk to Petitioner from COVID-19.
For the same reasons, Petitioner’s continued detention cannot “reasonably relate[] to any legitimate government purpose.” Bell v. Wolfish, 441 U.S. 520, 536-39 (1979) (holding that pretrial detention not
38

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reasonably related to a legitimate government purpose must be considered punishment and therefore contrary to the Fifth Amendment). In their response, Respondents do not directly address the justification for Petitioner’s continued detention. The Court notes that Petitioner is in civil detention pending removal proceedings pursuant to 28 U.S.C. § 1226(c). Petitioner faces significant risk of death due to COVID-19; accordingly, her continued confinement at the Calhoun County Correctional Facility is both unrelated and contrary to the government purpose of carrying out her removal proceedings.
Both the objective and subjective components are met; Petitioner has shown a likelihood of success on the merits. The Court reiterates that at this early stage in the litigation, Petitioner need not show a certainty of success on the merits. Indeed, “the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Northeast Ohio Coalition for Homeless and Service Employees Intern. Union, Local 1199, 467 F.3d at 1009 (6th Cir. 2006). Given the risk and severity of irreparable harm to Petitioner and the weight of public health evidence indicating release
39

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as the only reasonable option under these facts, Petitioner has met her current burden with respect to the merits of her claim.
Respondents nonetheless cite to some authority that release is an inappropriate remedy for Petitioner’s claim. See Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005) (noting release is not among the proper remedies for Eighth Amendment deliberate indifference claims, which are limited to injunctive relief for proper treatment and damages); Heximer v. Woods, No. 08-14170, 2018 WL 1193368, at *2 (E.D. Mich. Mar. 8, 2018) (noting that “release from custody is not an available remedy for a deliberate indifference claim.”). As explained above, Petitioner has shown a likelihood of success on the merits of her claim that given the extraordinary nature of the COVID-19 pandemic, no set of possible confinement conditions would be sufficient to protect her Fifth Amendment rights. Release from custody represents the only adequate remedy in this case, and it is within this Court’s broad equitable power to grant it. See Swann v. Charlotte–Mecklenburg Bd. of Educ., 402 U.S. 1, 15–16 (1971) (“Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”)
40

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3. Qualified Immunity In its supplemental brief, Respondents note that to the extent Petitioner brings a civil rights case, Respondents are entitled to assert a defense of qualified immunity. (ECF No. 19, PageID.317.) Qualified immunity is unavailable as a defense in cases seeking injunctive relief. See Pearson v. Callahan, 555 U.S. 223, 242 (2009) (noting that qualified immunity defense is not available in “suits against individuals where injunctive relief is sought in addition to or instead of damages”); Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982) (describing qualified immunity as “immunity from suits for damages”). Because Petitioner here seeks only declaratory and injunctive relief, qualified immunity does not apply. C. Balance of Equities and Public Interest When the government opposes the issuance of a temporary restraining order, as Respondents do here, the final two factors—the balance of equities and the public interest—merge, because “the government’s interest is the public interest.” Pursuing America’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 512 (D.C. Cir. 2016) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
41

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The public interest favors Petitioner’s release because of the risk that Petitioner’s constitutional rights will be deprived absent an injunction. “[I]t is always in the public interest to prevent the violation of a party's constitutional rights.” G & V Lounge Inc. v. Mich. Liquor Control Comm., 23 F.3d 1071, 1079 (6th Cir.1994).
Additionally, Petitioner’s release will protect public health. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, “the continued detention of aging or ill civil detainees does not serve the public’s interest.” Basank, 2020 WL 1481503, at *6; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (“the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020). Protecting public health and safety is in the public interest. See Neinast v. Bd. Of Trustees, 346 F.3d 585, 592 (6th Cir. 2003) (recognizing public health and safety as legitimate government interests).
Respondents argue that public interest favors Petitioner’s continued detention because “the public interest in enforcement of the
42

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United States’ immigration laws is significant.” (ECF No. 11, PageID.187 (citing United States v. Martinez-Fuerte, 428 U.S. 543, 556–58 (1976); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has recognized that the public interest in enforcement of the immigration laws is significant.”)).
Respondents point to only one immigration law that will see continued enforcement by denying relief to Petitioner. That law is 8 U.S.C. § 1226(c), and it authorizes Petitioner’s continued detention. But as set forth above, Petitioner’s continued detention is in violation of the United States Constitution, to which 8 U.S.C. § 1226(c) must give way.
The enforcement of the remainder of U.S. immigration laws against Petitioner will continue unabated should the Court grant Petitioner relief. A hearing on Petitioner’s request for cancellation of removal is scheduled for April 14, 2020. (ECF No. 11, PageID.170). Respondents do not argue that Petitioner’s release will jeopardize her appearance at that hearing, nor do they argue that Petitioner’s release will undermine her removal from this country, should Petitioner’s defense fail and should conditions allow such removal.
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The public interest and balance of equities demand that the Court protect Petitioner’s constitutional rights and the public health over the continued enforcement of a detention provision that, as applied to Petitioner, is unconstitutional. The remaining factors counsel granting Petitioner relief.
Because all four factors weigh in favor of issuing emergency injunctive relief, Petitioners motion for a temporary restraining order is granted.
IV. Conclusion For the reasons stated above, Petitioner’s Application for a Temporary Restraining Order is GRANTED IN PART. Respondent Adducci is ORDERED to release Petitioner on April 6, 2020 on her own recognizance. Petitioner will be subject to the following restrictions: Petitioner is subject to fourteen days of home quarantine; Petitioner must comply with all Michigan Executive Orders; and Petitioner must appear at all hearings pertaining to her removal proceedings. Respondents may impose other reasonable nonconfinement terms of supervision. Respondents are further RESTRAINED from arresting Petitioner for civil immigration detention purposes until the State of Emergency in
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Michigan (related to COVID-19) is lifted or until further Court Order

stating otherwise.

The Temporary Restraining Order will expire on April 17, 2020, at

6:30 p.m. No later than April 10, 2020, at 12:00 p.m., Respondents must

show cause why this Order should not be converted to a preliminary

injunction. Petitioner may file a response no later than April 16, 2020, at

12:00 p.m.

IT IS SO ORDERED.

Dated: April 6, 2020 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on April 6, 2020.
s/William Barkholz WILLIAM BARKHOLZ Case Manager

45

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EXHIBIT

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United States District Court Northern District of California

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

San Francisco Division

11

JOHN DOE,

Case No. 20-cv-02141-LB

12

Plaintiff,

13

v.

14

WILLIAM P. BARR, et al.,

15

Defendants.

ORDER GRANTING PETITIONER’S MOTION FOR TEMPORARY RESTRAINING ORDER
Re: ECF No. 6

16

17

INTRODUCTION

18

The petitioner, a citizen of Haiti and a lawful permanent resident of the United States, is in

19 removal proceedings based on his conviction for second-degree robbery.1 He finished his state

20 sentence and has been in the custody of the U.S. Immigration and Customs Enforcement (“ICE”)

21 at Yuba County Jail since April 15, 2019.2 He has not had a bond hearing. He has medical issues

22 — chronic post-traumatic stress disorder (“PTSD”), depression, and latent tuberculosis — and

23 given the COVID-19 pandemic and his conditions of confinement at Yuba County Jail, he

24 petitions under 28 U.S.C. § 2241 for his release or, alternatively, a bond hearing within seven days

25

26 1 Pet. – ECF No. 1. Citations refer to material in the Electronic Case File (“ECF”); pinpoint citations
27 are to the ECF-generated page numbers at the top of documents. 2 Notice of Custody Determination, Ex. C to Pet. – ECF No. 1-2 at 13.
28

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1 before an Immigration Judge (“IJ”). He also moved for a temporary restraining order (“TRO”) to

2 obtain the same relief.3 After full briefing and a hearing on April 9, 2020, the court grants the

3 petitioner’s motion for a TRO and orders his release.

4

5

STATEMENT4

6 1. COVID-19

7

The World Health Organization has designated COVID-19 a global pandemic.5 The state of

8 California has declared a state of emergency, and the President has declared a national

9 emergency.6 Our courthouses are mostly closed to in-person business, and counties have

10 implemented shelter-in-place orders that require social distancing and the closing of schools and

11 businesses.7 These are extraordinary times.8

12

13

14

15 3 Pet. – ECF No. 1; Mot. – ECF No. 6.

16 4 In part because this is a TRO, the court overrules the government’s objections to the evidence

submitted with the petitioner’s reply brief. Opp’n – ECF No. 16 at 11 n. 5; Objs. – ECF No. 22; see

17 Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) (“The trial court may give even

inadmissible evidence some weight, when to do so serves the purpose of preventing irreparable

18 harm”). The severity of COVID-19 is undisputed. The information about the petitioner’s community

support is helpful and cannot be reasonably disputed.

19 5 World Health Organization, WHO Director-General’s opening remarks at media briefing (Mar. 11,

20

2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mediabriefing-on-covid-19---11-march-2020 (last visited April 10, 2020).

21 6 Proclamation of State Emergency (Mar. 4, 2020), https://www.gov.ca.gov/wp-
content/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf (last visited Apr. 10, 2020); 22 Proclamation No. 994, 85 F3d. Reg. 15,337), https://www.whitehouse.gov/presidential-
actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-1923 outbreak/ (last visited Apr. 10, 2020).

24 7 See United States v. Daniels, No. 19-cr-00709-LHK (NC), Order – ECF No. 24 at 3–4 (N.D. Cal. Apr. 9, 2020); see Statewide “Shelter in Place” Order Replaces Yuba-Sutter directive,

25

https://yubanet.com/regional/statewide-shelter-in-place-order-replaces-yuba-sutter-directive/ (last visited Apr. 10, 2020); Mervosh, Lu, & Swales, See Which States and Cities Have Told Residents to

26

Stay at Home (Apr. 7, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-homeorder.html (last visited Apr. 10, 2020).

27 8 In the Matter of the Extradition of Alejandro Toledo Manrique, No. 19-mc-71055-TSH, 2020 WL
1307109, at *1(N.D. Cal. Mar. 19, 2020). 28

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1

COVID-19 spreads “easily and sustainably” from person to person, infected people can spread

2 it (even if they are asymptomatic), and COVID-19 can survive on surfaces for days.9 It spreads

3 even faster when it is in confined spaces, such as cruise ships, aircraft carriers, and prisons.10

4

There is no approved vaccine to prevent infection.11 Instead, to control the virus, the CDC (the

5 Centers for Disease Control and Prevention) recommends that people stay at least six feet away

6 from each other (a practice called “social distancing”), stay at home, wash their hands often,

7 disinfect surfaces, and cover their mouths and nose with a cloth face cover when around others.12

8

“[J]ails and prisons present extraordinarily dangerous conditions for the spread of the virus.”

9 United States v. Daniels, No. 5:19-cr-00709-LHK (NC), Order – ECF No. 24 at 5–7 (N.D. Cal.

10 Apr. 9, 2020) (citing articles and cases and taking judicial notice of information on the U.S.

11 Bureau of Prisons’ website).13

12

The CDC has determined that certain persons are more susceptible to being infected with

13 COVID-19.14 These include people who are 65 and older, people who live in a nursing home or

14 other long-term care facility, people who are homeless, and people of all ages with underlying

15

16 9 Ctrs. For Disease Control & Prevention, How COVID-19 Spreads (Apr. 2, 2020),

17

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-

18 ncov%2Fabout%2Findex.html (last visited Apr. 10, 2020).

10 Ortuño v. Jennings, No. 3:20-cv-02064-MMC, Order – ECF No. 28 at 3–4 (N.D. Cal. Apr. 8, 2020);

19 Daniels, No. 5:19-cr-00709-LHK (NC) – ECF No. 24 at 4–5.

20 11 Ctrs. For Disease Control & Prevention, How to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last visited Apr. 10.

21 2020).

12 Ctrs. For Disease Control & Prevention, Social Distancing, Quarantine, and Isolation (April 4,

22 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html (last

visited Apr. 10, 2020); Ctrs. For Disease Control & Prevention, How to Protect Yourself & Others

23 (April 8, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html

(last visited Apr. 10, 2020).

24 13 See also Mot. – ECF No. 6-1 at 12–15 (describing the risks and collecting authorities on the point).

25

This factual issue matters because the government argues that the risk is speculative (and that it is safer to be incarcerated), in support of an argument that the petitioner lacks standing. See Opp’n – ECF No.

26 16 at 18. The government’s fact assertions are unsubstantiated, and the evidence is to the contrary.

14 Ctrs. For Disease Control and Prevention, Groups At Risk For Severe Illness (April 2, 2020),

27 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last

visited Apr. 10, 2020).

28

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1 medical conditions, particularly if not well controlled, including the following: people with

2 chronic lung disease or moderate to severe asthma, people who have hypertension or serious heart

3 conditions, people with severe obesity (with a body-mass index of 40 or higher), people with

4 diabetes, people with chronic kidney disease undergoing dialysis, people with liver disease, and

5 people who are immunocompromised (including from cancer treatment, smoking, bone marrow or

6 organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of

7 corticosteroids and other immune-weakening medications).15

8

9 2. The Petitioner

10

The petitioner is a citizen of Haiti who came to the United States in July 2005, when he was

11 16, after he witnessed Haitian police officers’ beheading his parents.16 In 2007, he became a

12 lawful permanent resident based on an approved Special Immigrant Juvenile Status petition.17 He

13 initially lived in a foster home but ultimately moved to California, went to school, connected with

14 many family members who live in the U.S. (including his cousins in East Oakland), and met (in

15 2009) and married (in 2012) his wife, a U.S. citizen.18 They have lived together since 2010.19

16

The petitioner pleaded no contest in December 2011 to second-degree robbery, in violation of

17 Cal. Penal Code § 211, with enhancements for bodily injury and use of a weapon, and was

18 sentenced to three years for the robbery with a consecutive seven years for the enhancements.20

19 (The weapon was a BB gun that the petitioner used to hit the person he robbed.21) He has no other

20

21 15 Id.
22 16 Pet. – ECF No. 1 at 6 (¶ 22); Petitioner’s Decl., Ex. F. to Morales Decl. – ECF No. 1-2 at 23–24 (¶¶ 23 11–18); Lovedel Decl. – ECF No. 16-1 at 5 (¶ 12).
17 Pet. – ECF No. 1 at 6 (¶ 22); Rabinovich Decl. – ECF No. 1-4 at 2 (¶ 3); Lovedel Decl. – ECF No. 24 16-1 at 5 (¶ 12).
25 18 Pet. –ECF No. 1 at 6–7 (¶¶ 24–25); Petitioner’s Decl., Ex. F. to Morales Decl. – ECF No. 1-2 at 24– 26 (¶¶19–31); Wife’s Decl., Ex. H to Morales Decl. – ECF No. 1-2 at 67 (¶ 2).
26 19 Wife’s Decl., Ex. H to Morales Decl. – ECF No. 1-2 at 67 (¶ 2).
27 20 Pet. – ECF No. 1 at 7 (¶ 26); DHS Record, Ex. D to Morales Decl. – ECF No. 1-2 at 17–18. 21 Petitioner’s Decl., Ex. F. to Morales Decl. – ECF No. 1-2 at 27 (¶ 35).
28

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1 criminal history.22 He served eight years of his ten-year sentence (slightly less than the ordinary

2 85% because of good-time and educational-merit credits) and was released from Folsom State

3 Prison on April 15, 2019.23 His declaration in support of his application for adjustment of status

4 describes his activities at Folsom, including obtaining his high-school diploma, vocational training

5 in electronics, mental-health treatment, reconnecting to the spiritual practice (called Ifa) of his

6 father, learning and then teaching guitar, performing with a band, and charitable work.24 He

7 apparently had no disciplinary violations at Folsom.25 A psychological assessment of him includes

8 a review of his prison records, confirms his mental-health diagnosis and his extensive (and

9 successful) educational, therapeutic, and charitable activities.26

10

The petitioner has been in ICE custody since April 15, 2019 and has not had a bond hearing.27

11

A G4S security officer — a company that contracts with ICE — groped the petitioner on at

12 least two separate legal visits in San Francisco between September and December 2019.28 The

13 petitioner and several other victims reported the assault to the San Francisco Police Department

14

15

16 22 See Pet. – ECF No. 1 at 7 (¶¶ 26, 28); Rabinovich Decl. – ECF No. 1-4 at 2 (¶ 3); DHS Record, Ex. D to Morales Decl. – ECF No. 1-2 at 17–18.
17 23 Rabinovich Decl. – ECF No. 1-4 at 2 (¶ 3).
18 24 Petitioner’s Decl., Ex. F to Morales Decl. – ECF No. 1-2 at 28–32 (¶¶ 40–71). Ifa is a practice focused on building a “character of humility and compassion.” Id. at 30 (¶ 56).
19 25 See id. at 31 (¶ 69).
20 26 In the psychological evaluation (credited by the IJ), the psychologist reviewed prison records reflecting the diagnosis of chronic PTSD, depression, anxiety, and symptoms that included
21 sleeplessness and nightmares. Shidlo Decl., Ex. G to Morales Decl. – ECF No. 1-2 at 39 (¶¶ 14–22). The records show the petitioner’s participation in therapy, religious programs, a band, and college and
22 electronics courses. Id. (¶ 15). An annual review at Folsom notes that the petitioner did not engage in any cell violence or predatory behavior toward inmates or staff. Id. (¶ 16). The records reflect all of the
23 petitioner’s programming and describe him as a role model, a motivated student, disciplined, reliable, and hardworking, with the “right attitude for employment.” Id. at 40–41 (¶¶ 17–22). The assessment
24 synopsizes the petitioner’s background and experiences (including the crime), describes the tests that the psychologist administered, confirms the diagnosis of PTSD and Depressive Disorder NOS, finds
25 him credible, finds that he presented a low risk of violence, and opines that with good mental-health treatment, the petitioner is likely to function successfully, both socially and vocationally. Id. at 41–53
26 (¶¶ 23–63).
27 27 Pet. – ECF No. 1 at 6 (¶ 21); Rabinovich Decl. – ECF No. 1-4 at 4 (¶ 8). 28 Rabinovich Decl. – ECF No. 1-4 at 3 (¶ 7).
28

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1 (“SFPD”), which investigated the assault.29 SFPD Sergeant-Inspector Antonio Flores signed a

2 Form I-918 Supplement, U Nonimmigration Status Certification, certifying him as a victim of the

3 qualifying crimes of Abusive Sexual Contact and Sexual Assault, and reflecting the petitioner’s

4 cooperation and truthful information.30 This allows the petitioner to file for a U visa.31

5

The petitioner has been diagnosed with chronic PTSD, depression, and latent tuberculosis.32

6 He has nightmares, usually about his parents’ death, and experiences fear, anxiety, tightness in his

7 chest, and trouble sleeping.33

8

One article describes PTSD as — in addition to a chronic psychiatric illness — a “somatic

9 condition, such that patients with PTSD have been found to have a biological alterations in several

10 primary pathways involving the neuroendocrine and immune systems.”34 Mira Zein, M.D.,

11 M.P.H., who is a Clinical Assistant Professor at Stanford University School of Medicine,

12 Department of Psychiatry and Behavioral Sciences, describes how depression, stress, and PTSD

13 affect the immune system.35 “Growing evidence demonstrates that PTSD, anxiety/stress, and

14 depression can lead to decreased immune response and increased risk of infections.”36 These

15 illnesses are “linked with elevated stress levels,” which can impact immune responses.37

16 “Depression, anxiety, and PTSD have all been found to directly stimulate production of pro-

17 inflammatory cytokines, as well as downregulate cellular immunity leading to increased risk of

18

19 29 Id.
20 30 Id.; Supp. B, U Nonimmigrant Status Certification, Ex. C to Morales Decl. – ECF No. 1-3 at 50–53.
21 31 Rabinovich Decl. – ECF No. 1-4 at 3 (¶ 7).
22 32 Pet. – ECF No. 1 at 2 (¶ 1), 9 (¶ 33), 26 (¶ 75); Shidlo Decl., Ex. G to Morales Dec. – ECF No. 1-2 at 36 (¶ 2); see also Zein Decl., Ex. AA to Morales Supp. Decl. – ECF No. 19-1 at 7–9.
23 33 Petitioner’s Decl., Ex. F to Morales Decl. – ECF No. 1-2 at 28–29 (¶¶ 40–54).
24 34 Neigh & Ali, Co-Morbidity of PTSD and Immune System Dysfunction: Opportunities for Treatment, Curr. Opin. Pharmacol. (Author Manuscript) (Aug. 1, 2017),
25 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4992603/pdf/nihms805030.pdf 35 Zein Decl., Ex. AA to Morales Third Decl. – ECF No. 19-1. M.P.H. is a Master’s Degree in Public
26 Health.
27 36 Id. at 5. 37 Id. at 7.
28

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1 acute and prolonged infection, and delayed wound healing.”38 She concludes that weakened

2 immunity due to mental-health disorders can put detainees “at increased risk of contracting and

3 suffering from more severe forms of COVID-19.”39

4

Carlos Franco-Paredes, M.D., M.P.H., D.T.M.H., who is an Associate Professor of Medicine

5 at the University of Colorado Department of Medicine, Division of Infectious Diseases, describes

6 COVID-19 risks at immigration detention centers.40 “The physical and emotional trauma that

7 detainees and asylum seekers experience can weaken their immune systems, resulting in increased

8 risk of severe manifestations of infections.”41 Other countries have identified people with “severe

9 psychiatric illness” as a group at “high risk of dying [from COVID-19] regardless of their age.”42

10

The petitioner also suffers from latent tuberculosis.43 Initially, he described his medical

11 condition thusly: “it is unclear how the novel coronavirus will interact with” the petitioner’s latent

12 tuberculosis.44 Subsequently, he submitted additional information.45 Tuberculosis, like COVID-19,

13 is a respiratory disease.46 George Martinez, M.D., who conducted the petitioner’s medical

14 examination for his immigration proceedings, did not specify a definite relationship between latent

15 tuberculosis and COVID-19, given that the virus is still new to healthcare professionals.47 One

16 observational study studied the relationship of tuberculosis and COVID-19 in 36 confirmed

17 COVID-19 patients.48 It found that “individuals with latent or active TB [Tuberculosis] may be

18

19 38 Id.
20 39 Id. at 9. 40 Franco-Paredes Decl., Ex. S to Morales Decl. – ECF No. 1-3 at 78–90. D.T.M.H. is a diploma in
21 tropical medicine and hygiene.
22 41 Id. at 81. 42 Id. at 82.
23 43 Pet. – ECF No. 1 at 26 (¶ 75); Rabinovich Decl. – ECF No. 1-4 at 7 (¶ 24).
24 44 Pet.– ECF No. 1 at 26 (¶ 75) (citing Rabinovitch Decl. – ECF No. 1-4 at 7 (¶ 24)).
25 45 Mot. – ECF No. 26. Given the nature of the proceedings, and for the reasons described above, the court considers the additional submission.
26 46 Chen Study, Ex. A to Rabinovich Decl. – ECF No. 26-1 at 12.
27 47 Rabinovich Decl. – ECF No. 1-4 at 7 (¶ 24). 48 Chen Study, Ex. A to Rabinovich Decl. – ECF No. 26-1 at 6, 9–10.
28

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1 more susceptible to SARS-CoV-249 infection.”50 It also found that “COVID-19 disease

2 progression may be more rapid and severe” in those with latent or active tuberculosis.51 It

3 identified “tuberculosis history (both of active TB and latent TB) [as] an important risk factor for

4 SARS-CoV-2 infection.”52 The study noted that its findings are limited because it is based on a

5 low number of cases.53

6

If he is released, the petitioner has said that he will live with his wife in Oakland, California.54

7 In her declarations, the petitioner’s wife describes their close relationship, his relationship with her

8 son and other children in the family, his creativity and support, his rehabilitation, and her need for

9 his support given her health issues.55 She identifies her two-bedroom apartment in Oakland as

10 their residence, describes how they will be able to practice social distancing, and describes the

11 substantial precautions she follows to ensure her health, such as washing her hands, wearing a

12 mask and gloves outside, immediately washing her clothes when she returns to her home, cleaning

13 frequently, and washing her hands frequently.56

14

Because the petitioner is on County parole, he will have access to robust mental-health,

15 educational, job-training, and job-placement services.57

16

17

18

19 49 SARS-COV-2 is the virus for COVID-19. World Health Org., Naming the coronavirus (COVID-19) and the virus that causes it, https://www.who.int/emergencies/diseases/novel-coronavirus-
20 2019/technical-guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it (last visited Apr. 11, 2020).
21 50 Chen Study, Ex. A to Rabinovich Decl. – ECF No. 26-1 at 11.
22 51 Id.
23 52 Id. at 5–6. 53 Id. at 12. The study has not been peer-reviewed, given that it was posted on March 16, 2020.
24 54 Rabinovich Decl. – ECF No. 1-4 at 8 (¶ 30).
25 55 See Wife’s Decl., Ex. H to Morales Decl. – ECF No. 1-2 at 67–71 (¶¶ 2–29); Wife’s Decl., Ex. BB to Morales Third Decl. – ECF No. 19-1 at 19 (¶¶ 3–4).
26 56 See Wife’s Decl., Ex. BB to Morales Third Decl. – ECF No. 19-1 at 19 (¶¶ 2–5).
27 57 Letter, Ex. CC to Morales Third Decl. – ECF No. 19-1 at 22–31. Alameda County is resource-rich for those on County supervision.
28

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1 3. Immigration Proceedings

2

The petitioner’s conviction is an aggravated felony, which means that he is removable under

3 § 273(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”), 8 U.S.C.

4 § 1227(a)(2)(A)(iii).58 The petitioner advanced two claims for relief from removal: an adjustment

5 of status (based on an approved spousal visa) and protection under the Convention Against

6 Torture.59 On February 13, 2020, the Immigration Judge (“IJ”) denied the application for relief

7 and ordered the petitioner removed to Haiti.60 The IJ “observed the [petitioner’s] demeanor and

8 analyzed his testimony for consistency, specificity, and persuasiveness” and found his testimony

9 “plausible, believable, candid, and generally consistent.”61 “After considering the totality of the

10 evidence and weighing all the relevant factors,” the IJ found the petitioner “credible and

11 accord[ed] his testimony full evidentiary weight,” and also found credible the testimony of the

12 petitioner’s wife and the examining psychologist (summarized above).62

13

On March 2, 2020, the petitioner timely appealed to the Board of Immigration Appeals.63

14 There is no briefing schedule, and the timeline for a decision is anywhere from six months to over

15 a year.64

16

As mentioned above, the petitioner has said that he will apply for a U visa.65

17

18

19

20

21 58 Pet. – ECF No. 1 at 7 (¶ 28); Notice to Appear, Ex. A to Morales Decl. – ECF No. 1-2 at 6.

22 59 Pet. – ECF No. 1 at 7–8 (¶ 29); see also IJ Order, Ex. L to Morales Decl. – ECF No. 1-3 at 32–42.

23 60 IJ Order, Ex. M to Morales Decl. – ECF No 1-3 at 42.

61 Id. at 34.

24 62 Id. at 36 (summarizing the psychologist’s diagnoses, the strong family relationships, and the

25

petitioner’s wife’s need for support from her husband, given her own ailments, and also finding other witnesses credible).

26 63 Pet. – ECF No. 1 at 8 (¶ 32); Notice of Appeal, Ex. M to Morales Decl. – ECF No 1-3 at 44.

27 64 Rabinovich Decl. – ECF No. 1-4 at 3 (¶¶ 5–6). 65 Id. (¶ 7).
28

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1 4. The Conditions of Confinement at Yuba County Jail

2

The petitioner’s housing unit is detained in “Pod C,” a large open space in the basement,

3 housing 50 people, and divided into an upstairs and a downstairs.66 The detainees sleep

4 downstairs, in an open room with beds about three to four feet apart.67 The upstairs has a

5 communal dining area, the commissary, and an exercise space. 68 There are phones and bathrooms

6 upstairs and downstairs.69 There are six sinks in the pod, and one has hot water for food

7 preparation.70 The sinks have push-button faucets that stay on for only a short time and require

8 repeated pressing to complete a handwashing.71 The detainees have three meals a day, served

9 communally, at tables that seat six people, and some eat on their cots because there are not enough

10 spaces in the dining room.72

11

Until March 19, 2020, according to the petitioner, no jail employee cleaned inside the pod,

12 though detainees cleaned occasionally (possibly weekly) and had to ask a guard for cleaning

13 supplies (kept in a locked closet).73 Before March 19, 2020, detainees could obtain soap only by

14 buying it at the commissary, and they could not buy hand sanitizer.74 Starting on March 20, 2020,

15 jail officials began distributing small bars of soap that disintegrate quickly, allow only a couple of

16 hand washes, and did not always allow distribution to all detainees.75 There are no masks for

17 detainees, but some (not all) staff members have masks now.76

18

19

20 66 Id. at 4 (¶¶ 10–12).
21 67 Id. (¶ 12). 68 Id.
22 69 Id.
23 70 Id.
24 71 Id. 72 Id. at 5 (¶ 13).
25 73 Id. (¶ 14)).
26 74 Id. (¶ 15).
27 75 Rabinovich Decl. – ECF No. 19-2 at 2 (¶ 4). 76 Id. at 2–3 (¶ 6).
28

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1

According to the government, the jail can house 210 detainees.77 Since March 11, 2020 (the

2 date that the World Health Organization declared COVID-19 a global pandemic), ICE’s

3 Enforcement and Removal Operations is “taking affirmative steps to reduce the number of

4 detainees” at Yuba County Jail and has reduced the population (from 168 to 150) by 10 percent.78

5 As of April 2, 2020, there are 150 detainees at Yuba, 140 male and 10 female.79 The number of

6 detainees can fluctuate based on book-ins and releases.80 ICE is assessing detainees at intake,

7 placing any detainees with COVID-19 symptoms in quarantine (and testing them), and thereafter

8 providing appropriate treatment.81As of April 9, 2020, there are no suspected or confirmed cases

9 of COVID-19 at Yuba.82 The jail has “increased sanitation frequency and provides sanitation

10 supplies including disinfectants, sanitizer, and soap in every housing unit,” and the “administration

11 is encouraging both staff and the general staff population to use these [hygiene] tools often and

12 liberally.”83 It has suspended in-person visits and limited professional visits to noncontact visits.84

13 It screens all staff and vendors for body temperature when they enter the facilities.85 It provides

14 education to staff and detainees on the importance of hand-washing and other hygiene measures.86

15 It has “identified housing units for the quarantine of patients who are suspected of or test positive

16 for COVID-19” (after the assessment and monitoring protocols that apply during intake).87

17

18 77 Lovedel Decl. – ECF No. 16-1 at 4 (¶ 7).

19 78 Id.

79 Id.

20 80 Id. The petitioner replies to this point by pointing to increased book-ins and a resulting increased

21

population of detainees. Reply – ECF No. 19 at 6–7; Zukin Decl., Ex. H to Morales Decl. – ECF No. 19-1 at 118–120 (¶¶ 4–8).

22 81 Moon Decl. – ECF No. 16-2 at 5–6 (¶¶ 8–10).

23 82 See Moon Decl. – ECF No. 16-2 at 6 (¶ 12) (“As of March 26, 2020 there are zero suspected cases of COVID-19 in the Yuba County Jail and zero confirmed cases”); Lovedel Decl. – ECF No. 16-1 at 5
24 (¶ 11). The respondent said at the April 9, 2020 hearing that this remains the case. 83 Moon Decl. – ECF No. 16-2 at 6 (¶ 14).
25 84 Id. (¶ 15).

26 85 Id. (¶ 16).

27 86 Id. at 7 (¶ 18). 87 Id. (¶ 19).
28

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1 5. Procedural Background

2

In his § 2241 petition, the petitioner challenges the conditions of his confinement (based on his

3 inability to address his medical vulnerabilities through CDC-recommended measures such as

4 social distancing and using cleaning products) and claims that his continued detention violates (1)

5 his substantive due-process right under the Fifth Amendment to the U.S. Constitution to be

6 detained in a safe situation, free from punitive conditions of confinement, and (2) his procedural

7 due-process right to a bond hearing under the Fifth Amendment.88

8

The court granted the petitioner’s unopposed motion to proceed pseudonymously.89 The court

9 held a hearing on the TRO on April 9, 2020.90

10

11

STANDARD OF REVIEW

12

A TRO preserves the status quo and prevents irreparable harm until a hearing can be held on a

13 preliminary-injunction application. Granny Goose Foods, Inc. v. Brotherhood of Teamsters &

14 Auto Truck Drivers, 415 U.S. 423, 439 (1974). A TRO is an “extraordinary remedy” that the court

15 should award only when a plaintiff makes a clear showing that it is entitled to such relief. Winter

16 v. Natural Res. Defense Council, Inc., 555 U.S. 7, 22 (2008).

17

The standards for a TRO and a preliminary injunction are the same. Stuhlbarg Int’l Sales Co.

18 v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A movant must demonstrate

19 (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm that would result if

20 an injunction were not issued, (3) the balance of equities tips in favor of the plaintiff, and (4) an

21 injunction is in the public interest. Winter, 555 U.S. at 20. The irreparable injury must be both

22 likely and immediate. Id. at 20–21. “[A] plaintiff must demonstrate immediate threatened injury as

23 a prerequisite to preliminary injunctive relief.” Caribbean Marine Serv. Co. v. Baldrige, 844 F.2d

24 668, 674 (9th Cir. 1988).

25

26 88 Id. at 29–30 (¶¶ 83–90).
27 89 Order – ECF No. 10; Statement of Non-Opposition – ECF No. 9.
28 90 Mot. – ECF No. 6; Opp’n – ECF Nos. 16, 17; Reply – ECF No. 19; Minute Entry – ECF No. 23.

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1

Before Winter, the Ninth Circuit employed a “sliding scale” test that allowed a plaintiff to

2 prove either “(1) a likelihood of success on the merits and the possibility of irreparable injury; or

3 (2) [ ] serious questions going to the merits were raised and the balance of hardships tips sharply

4 in its favor.” Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir. 1999) (citation omitted).

5 In this continuum, “the greater the relative hardship to [a movant], the less probability of success

6 must be shown.” Id. After Winter, the Ninth Circuit held that although the Supreme Court

7 invalidated one aspect of the sliding scale approach,91 the “serious questions” prong of the sliding

8 scale survived if the plaintiff satisfied the other elements for preliminary relief. Alliance for Wild

9 Rockies v. Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011). Thus, a preliminary injunction may

10 be appropriate when a movant raises “serious questions going to the merits” of the case and the

11 “balance of hardships tips sharply in the plaintiff’s favor,” provided that the other elements for

12 relief also are satisfied. Id. at 1134–35.

13

ANALYSIS

14

The government argues that (1) the petitioner cannot challenge the conditions of his

15 confinement in a § 2241 petition seeking immediate release, (2) the petitioner did not exhaust his

16 administrative remedies, (3) the petitioner lacks standing because any injury is speculative, and (4)

17 the petitioner does not establish his entitlement to a TRO.92 These arguments are not persuasive.

18

First, the court can address the petitioner’s challenges to the conditions of confinement in a

19 § 2241 petition. See, e.g., Ortuño, No. 3:20-cv-02064-MMC, Order – ECF No. 38 at 4 (N.D. Cal.

20 Apr. 8, 2020); Bent v. Barr, No. 4:19-cv-06123-DMR, 2020 WL 1812850, at *2–3 (N.D. Cal. Apr.

21 9, 2020) (collecting cases); see Lopez-Marroquin v. Barr, No. 18-72922, Order (9th Cir. Apr. 9,

22 2020) (construing immigration detainee’s COVID-19-related request for release under the All

23 Writs Act as a 28 U.S.C. § 2241 petition and remanding to district court for consideration).

24

25 91 The Supreme Court in Winter rejected the Ninth Circuit’s holding that “the ‘possibility’ of

26

irreparable harm was sufficient, in some circumstances to justify a preliminary injunction.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Instead, the Winter Court held that

27

“plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.” Id. (emphasis in original).

28 92 Opp’n – ECF No. 16 at 15–24.

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1

Second, for habeas claims, exhaustion of administrative remedies is prudential, not

2 jurisdictional. Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017). A court “may require

3 prudential exhaustion when: (1) agency expertise makes agency considerations necessary to

4 generate a proper record and reach a proper decision; (2) relaxation of the requirement would

5 encourage the deliberate bypass of the administrative scheme; and (3) administrative review is

6 likely to allow the agency to correct its own mistakes and to preclude the need for judicial

7 review.” Id. (citing Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007)). “Nonetheless, a court

8 may waive the prudential exhaustion requirement if administrative remedies are inadequate or not

9 efficacious, pursuant of administrative remedies would be a futile gesture, irreparable injury will

10 result, or the administrative proceedings would be void.” Id. (citation and quotation omitted).

11

Waiver of the prudential exhaustion requirement is appropriate here. Courts have entertained

12 similar COVID-19 claims under habeas jurisdiction without mentioning prudential exhaustion. See

13 Bent, 2020 WL 1812850 at *5–6 (collecting cases addressing habeas challenges). Also, the

14 petitioner’s claim of entitlement to a bond hearing is based on the Fifth Amendment (as opposed

15 to being grounded in a statutory entitlement), and thus exceeds the jurisdiction of the immigration

16 courts and the BIA. See Hernandez v. Wolf, No. 5:20-cv-00617-TJH (KSx), Order – ECF No. 17

17 at 10 (C.D. Cal. April 1, 2020) (waiving prudential exhaustion in a case with similar facts about

18 the conditions of confinement). In addition, the petitioner suffers continued harm from the lack of

19 a bond hearing, and given his health issues, irreparable injury results from his continued detention.

20 See Jimenez v. Wolf, No. 5:19-cv-07996-NC, Order – ECF No. 25 at 3–4 (N.D. Cal. Mar. 6, 2020)

21 (waiving the prudential-exhaustion requirement for similar reasons).

22

Third, the petitioner has standing. The risk of injury is not speculative. The petitioner

23 submitted uncontested statements from public-health experts about the risks in jails, prisons, and

24 detention centers. The risks are serious, even without a confirmed case of the virus in this

25 detention center. See Bent, 2020 WL 1812850 at *3–4. The weight of authority supports the

26 conclusion that detainees have standing. See, e.g., id. at *3 (“[g]iven the exponential spread of the

27 virus, the ability of COVID-19 to spread through asymptomatic individuals[,] . . . effective relief

28 for [petitioner] and other detainees may not be possible if they are forced to wait until their

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1 particular facility records a confirmed case”) (collecting cases); Ortuño, No. 3:20-cv-02064-

2 MMC, ECF No. 38 at 3 (where petitioners have not contracted COVID-19, standing is still met

3 because of how rapidly the disease can spread in a confined space); see also Castillo v. Barr, No.

4 5:20-cv-00605-TJH (AFMx), 2020 WL 1502864, at *4–5 (C.D. Cal. Mar. 27, 2020) (standing

5 based on similar facts); see also Xochihua-Jaimes v. Barr, No. 18-71460, 2020 WL 1429877 (9th

6 Cir. Mar. 24, 2020) (sua sponte ordering the petitioner released (and his removal stayed) pending

7 final disposition by the court “[i]n light of the rapidly escalating public health crisis, which public

8 health authorities predict will especially impact immigration detention centers.”

9

* * *

10

Fourth, as discussed in the next sections, the petitioner has satisfied the four TRO factors: (1) a

11 likelihood of success on the merits, (2) a likelihood of irreparable harm, (3) the balance of equities

12 tips in favor of the petitioner, and (4) an injunction is in the public interest.

13

14 1. Likelihood of Success on the Merits

15

The petitioner has two claims: (1) a substantive due-process claim under the Fifth Amendment

16 that his conditions of confinement — in light of his heightened risk to COVID-19 — amount to

17 punishment, and (2) a procedural due-process claim under the Fifth Amendment because he has

18 been in ICE custody for a year and has not had a bond hearing.93

19

1.1 Substantive Due-Process Claim

20

The petitioner has at least raised a serious question that his continued detention poses risks that

21 exceed the government’s needs to ensure his presence at immigration proceedings, in violation of

22 his substantive due-process rights under the Fifth Amendment.

23

Because the petitioner is a civil detainee, his confinement is unconstitutional under the Fifth

24 Amendment if his conditions of confinement “amount to punishment.” Bell v. Wolfish, 441 U.S.

25 520, 535 (1979); Jonas v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (quoting Bell, 441 U.S. at

26 535); accord Bent, 2020 WL 1812850 at *4; Ortuño, No. 3:20-cv-02064-MMC, Order – ECF No.

27

28 93 Pet. – ECF No. 1 at 29–30 (¶¶ 83–90).

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1 38 at 4; Castillo, 2020 WL 1502864 at *3. “[P]unitive conditions may be shown (1) where the

2 challenged restrictions are expressly intended to punish, or (2) where the challenged restrictions

3 serve an alternative, non-punitive purpose but are nonetheless excessive in relation to the

4 alternative purpose, . . . or are employed to achieve objectives that could be accomplished in so

5 many alternative and less harsh methods.” Jonas, 393 F.3d at 932 (citations and quotation marks

6 omitted). The government’s legitimate, non-punitive interests include ensuring a detainee’s

7 presence at immigration proceedings. See id. (ensuring a detainee’s presence at trial); Ortuño, No.

8 3:20-cv-02064-MMC, Order – ECF No. 38 at 4 (immigration proceedings).

9

The issue here is whether, in light of the petitioner’s health, his detention is excessive in

10 relation to the government’s interest in securing his presence at immigration proceedings. The

11 evidence is undisputed that those with respiratory ailments are more susceptible to being infected

12 by COVID-19, and the petitioner’s other diagnoses of chronic PTSD and depression compound

13 his susceptibility. His risk is heightened because detainees at Yuba County jail live in close

14 quarters, cannot practice social distancing, do not have masks, and do not have access to adequate

15 disinfecting and cleaning supplies.

16

Courts have found that similar conditions of confinement do not meet the constitutional

17 standard for at-risk civil detainees. See, e.g., Ortuño, No. 3:20-cv-02064-MMC, Order – ECF No.

18 38 at 6–7 (petitioners with diabetes and asthma; detainees are in close quarters, do not have masks,

19 and cannot meaningfully practice social distancing); Bent, 2020 WL 1812850 at *2, 5–6

20 (petitioner with asthma, hypertension, and pre-diabetes; inadequate soap, sanitizer, and cleaning

21 supplies; resulting inability — despite efforts to encourage social distancing — to implement the

22 CDC’s social-distancing guidelines; “public health experts make clear that an outbreak in confined

23 spaces is potentially devastating”) (collecting cases); Castillo, 2020 WL 1502864, at *5 (detainees

24 cannot maintain a six-foot distance and were “put into a situation where they are forced to touch

25 surfaces touched by other detainees, such as with common sinks, toilets, and showers;” noted the

26 risks of infection in immigration facilities, given the rotation of facility guards and staff);

27 Hernandez, No. 5:20-cv-00617-TJH (KSx), Order – ECF No. 17 at 1, 5–6, 13 (petitioner with

28 hypertension and multiple medical ailments; similar conditions of confinement); Basank v.

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1 Decker, 20-cv-2518 (AT), 2020 WL 1481503, at *5 (S.D.N.Y. Mar. 26 2020) (inability to

2 maintain social distancing to protect high-risk detainees shows a likelihood of success on the

3 merits).

4

In sum, the petitioner has at least shown a serious question that his continued detention

5 exceeds the government’s legitimate interest in assuring his appearance in immigration

6 proceedings. (The court addresses flight risk and danger to the community in section 2, below.)

7

1.2 Procedural Due-Process Claim

8

Because he has not had a bond hearing (despite a year in ICE custody), the petitioner has

9 shown that he is likely to succeed on the merits of his procedural due-process claim.

10

A person who (like the petitioner) commits an aggravated felony may be detained in

11 immigration proceedings, and the statutory scheme does not provide for a bond hearing or limit

12 the length of detention. See 8 U.S.C. §§ 1226(a), (c); Jennings v. Rodriguez, 138 S. Ct. 830, 844,

13 846 (2018) (“§ 1226(c) does not on its face limit the length of the detention it authorizes.”);

14 Jimenez v. Wolf, No. 5:19-cv-7996-NC, 2020 WL 510347, at *2 (N.D. Cal. Jan. 30, 2020). Still,

15 the Fifth Amendment “entitles aliens to the due process of law in deportation proceedings.”

16 Demore v. Kim, 538 U.S. 510, 523 (2003). When confinement continues past a year, courts are

17 wary of continued custody absent a bond hearing. Gonzalez v. Bonnar, No. 3:18-cv-05321-JSC,

18 2019 WL 330906, at *3 (N.D. Cal. Jan. 26, 2019) (collecting cases). Courts apply the three-factor

19 balancing test in Mathews v. Eldridge, 424 U.S. 319 (1976), to evaluate the constitutionality of the

20 detention. See, e.g., Jimenez, 2020 WL 510347 at *3 The three factors are (1) the private interest

21 affected by the official action, (2) the risk of an erroneous deprivation of such interest through the

22 procedures used, and the probable value of any additional procedural safeguards, and (3) the

23 government’s interest, “including the function involved and the fiscal and administrative burdens

24 that the additional or substitute procedural requirements would entail.” Mathews, 424 U.S. at 334–

25 35.

26

First, there is no briefing schedule for the BIA appeal, and the uncontested timeline is

27 anywhere from another six months to over a year. Given the petitioner’s detention for almost a

28 year to date, and the likelihood of six months to a year in the future, the length of detention

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1 supports the conclusion that the petitioner’s private interest militates in favor of his claim that the

2 denial of a bond hearing violates his procedural due-process rights under the Fifth Amendment.

3 Gonzalez, 2019 WL 330906, at *5; Jimenez, 2020 WL 510347 at *3.

4

Second, the other factors weigh in the petitioner’s favor. The probable value of a hearing

5 (given the lack of any bond hearing) is high. And while there is an important government interest

6 in securing the petitioner’s presence at any removal, the procedural due-process inquiry is about

7 holding a bond hearing to assess whether the alien represents a flight risk or a danger to the

8 community. Jimenez, 2020 WL 510347 at *3.

9

10 2. Remaining TRO Elements

11

The first element is irreparable harm. Continued detention and exposure to health-threatening

12 conditions establish this element. Sessions, 872 F.3d at 994 (unconstitutional detention is

13 irreparable harm); Bent, 2020 WL 1812850 at *6 (health issues establish irreparable harm to the

14 petitioner’s health and safety); Ortuño, No. 3:20-02064-MMC, Order – ECF No. 38 at 8 (same).

15

The second and third elements — the balance of equities and whether an injunction is in the

16 public interest — merge. Bent, 2020 WL 1812850 at *7. The public’s interests are containing

17 COVID-19, securing the petitioner’s appearance in his immigration proceedings, and preventing

18 any danger to the community. Id.; Ortuño, No. 3:20-cv-02064-MMC, ECF No. 38 at 8. Under the

19 circumstances here, the balance of equities and the public interest weigh in favor of release.

20

The petitioner cannot meaningfully protect himself at Yuba County jail from the risks of his

21 custody. Ortuño, No. 3:20-cv-02064-MMC, ECF No. 38 at 8; Bent, 2020 WL 1812850 at *7.

22 Injunctive relief that prevents the further spreading of the virus and allows social distancing is in

23 the public’s interest. Ortuño, No. 3:20-cv-02064-MMC, ECF No. 38 at 8 (“the public interest in

24 promoting public health is served by efforts to contain the further spread of COVID-19,

25 particularly in detention centers”); Bent, 2020 WL 1812850 at *7 (collecting cases); Castillo, 2020

26 WL 1502864 at *6 (“[t]he public has a critical interest in preventing the further spread of the

27

28

ORDER – No. 20-cv-02141-LB

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1 coronavirus”).94 By living with his wife, the petitioner will be able to protect himself and others

2 through social distancing and the other hygienic measures that the CDC recommends.

3

As to the risk of flight and danger to the community, the global pandemic is changing behavior

4 and the way courts assess risk of flight and community safety. See Bent, 2020 WL 1812850 at *7

5 (collecting cases). The petitioner has substantial ties to the community and every incentive to

6 comply with the conditions of his supervision, given the alternative of custody and the attendant

7 dangers to his health there. He has a parole officer and considerable community resources, as

8 discussed above, which means he has the supervision necessary to secure his appearance at

9 immigration proceedings and ensure the safety of the community. His underlying crime is serious.

10 But the record of his confinement shows his substantial rehabilitation. The IJ also found the

11 petitioner to be plausible, believable, candid, and consistent, and the psychological evaluation of

12 the petitioner confirmed his good behavior, his low risk of violence, and the likelihood that he will

13 function successfully, both socially and vocationally.95 Also, the court’s conditions of release

14 address any concern about flight risk and safety of the community.

15

In sum, given the petitioner’s combination of medical issues (chronic PTSD, depression, and

16 latent tuberculosis), the COVID-19 pandemic, the conditions of confinement at Yuba County jail,

17 the irreparable harm to the petitioner, the balance of equities, and the public interest, the court

18 grants the TRO and, as relief, orders the petitioner’s release.

19

20

CONCLUSION

21

The court grants the petitioner’s motion for a TRO and orders his immediate release from

22 custody.

23

The petitioner must reside with his wife in Oakland (at the address that she provided in her

24 declaration), and he must shelter in place unless otherwise directed by his parole officer. What that

25
26 94 Social distancing and sheltering in pace are the means to prevent the spread of the virus and not overwhelm the health-care system. Siobhan Roberts, Flattening the Coronavirus Curve (Mar. 27,
27 2020), https://www.nytimes.com/article/flatten-curve-coronavirus.html. 95 IJ Order, Ex. M to Morales Decl. – ECF No. 1-3 at 34; Shidlo Decl., Ex. G to Morales Decl. – ECF
28 No. 102 at 39–53 (¶¶ 14–63).

ORDER – No. 20-cv-02141-LB

19

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United States District Court Northern District of California

1 means is that pending further order of the court or the permission of his parole officer, the

2 petitioner may leave home only to obtain medical care, meet with his parole officer (as directed),

3 meet with his attorneys, appear at any immigration proceedings, or to obey any order issued by the

4 immigration authorities. While on release, he must not violate any federal, state, or local law. The

5 petitioner’s parole officer may impose additional conditions or modify these conditions — when it

6 is appropriate to do so — to allow the petitioner to engage in gainful activity. His attorneys must

7 file any modified conditions on the docket.

8

Within two business days, the parties must confer about and submit a proposed schedule for

9 the court’s issuing a preliminary injunction. Ordinarily, that would require the government to

10 show cause why the court should not issue a preliminary injunction, and the petitioner to thereafter

11 file a response, and the government to file a reply.

12

13

IT IS SO ORDERED.

14

Dated: April 12, 2020

15

______________________________________

LAUREL BEELER

16

United States Magistrate Judge

17

18

19

20

21

22

23

24

25

26

27

28

ORDER – No. 20-cv-02141-LB

20

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EXHIBIT

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL

Case No. 5:13-cv-0444-VAP-OPx Title Quinton Gray v. County of Riverside

Date April 14, 2020

Present: The Honorable VIRGINIA A. PHILLIPS, CHIEF UNITED STATES DISTRICT JUDGE

CHRISTINE CHUNG Deputy Clerk

Not Reported Court Reporter

Attorney(s) Present for Plaintiff(s): None Present

Attorney(s) Present for Defendant(s): None Present

Proceedings: (IN CHAMBERS) MINUTE ORDER GRANTING “EMERGENCY MOTION TO ENFORCE CONSENT DECREE” [DKT. 177]

On April 6, 2020, Plaintiff Quinton Gray (“Plaintiff”) filed a document captioned “Emergency Motion1 to Enforce Consent Decree.” (“Motion,” Dkt. 177). Pursuant to this Court’s April 8, 2020 Minute Order, (Dkt. 182), Defendant County of Riverside (“Defendant”) opposed the Motion on April 10, 2020 (“Opp.,” Dkt. 183). After considering all papers submitted in support of, and in opposition to, the Motion, as well as the arguments advanced during the telephonic hearing on April 13, 2020, the Court GRANTS the Motion.
In 2016, the Parties entered into a Consent Decree “to ensure the provision of constitutional health care and to ensure non-discrimination for inmates with disabilities in the Riverside County Jails.” (Dkt. 173 ¶ 1). The plaintiff class includes three distinct subclasses: the medical subclass, which comprises “[a]ll prisoners who are now, or will in the future be, subjected to the medical care policies and practices of the Riverside

1 The Court notes that an “Emergency Motion” is procedurally improper. Plaintiff should have filed an ex parte application to shorten time for hearing on a motion, in conformance with Local Rule 7-19. In the interests of justice, the Court will treat Plaintiff’s Motion as though it had been filed properly.

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Jails”; the mental health subclass, which comprises “[a]ll prisoners who are now, or will in the future be, subjected to the mental health care policies and practices of the Riverside Jails”; and the disability subclass, which comprises “all prisoners who are now, or will be in the future, subjected to policies and practices of the Riverside jails regarding specialized or sheltered housing for prisoners due to their mobility impairments and need for assistive devices, and the provision and confiscation of accommodations for prisoners with mobility impairments[.]” (Dkt. 173 ¶ 3).
The Parties to the Consent Decree negotiated a Remedial Plan, which “is designed to meet the minimum level of health care necessary to fulfill Defendant’s obligations under the Eighth and Fourteenth Amendments, as well as to ensure nondiscrimination against inmates with disabilities in the areas addressed by the Plan, as required by the ADA and Section 504 of the Rehabilitation Act.” (Dkt. 173 ¶ 9). In light of the coronavirus (“COVID-19”) pandemic2, “Plaintiffs seek to enforce the Consent Decree by requiring the County to submit a plan to the Court to implement the Governor’s order for physical distancing for all Californians housed in the jails and to provide sanitation and other essential services generally accepted as necessary in correctional facilities to provide for the basic health needs of incarcerated people.” (Motion at 3-4).
As Defendant argues, the Consent Decree specifies a dispute resolution process which provides that the Parties first conduct negotiations to resolve informally matters in dispute, then, if they are unable to resolve the dispute, to request that the Relevant Court experts evaluate the issue and prepare a report. Following preparation of this report, if the parties still are unable to resolve the issue, they may request mediation with Judge Raul Ramirez. Only after having mediated are the parties to file a motion for relief with this Court. (Dkt. 173 ¶¶ 26–29). Here, the parties have conducted the first two steps, but have not yet mediated. Nevertheless, “[g]iven the urgent nature of the proceedings, Plaintiffs request the Court modify the Consent Decree to allow for urgent appeal for enforcement directly to the Court.” (Motion at 17 n.2).

2 The pandemic has caused unprecedented disruption to daily life. On March 13, 2020, the President of the United States declared a National Emergency in response to the Coronavirus Disease- 2019 (“COVID-19”) pandemic pursuant to the National Emergencies Act (50 U.S.C. § 1601, et seq.). California Governor Gavin Newson has declared a state of emergency in response to the COVID-19 outbreak and, in his March 19, 2020 Executive Order N-33-20, “require[d] physical distancing to keep Californians at least six feet apart at all times and to prepare hospitals and health care workers for the coming surge in cases.” (Motion at 2).

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The Court finds good cause to modify the Consent Decree to permit appeal to this Court. “[A] party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree. . . . A party seeking modification of a consent decree may meet its initial burden by showing either a significant change either in factual conditions or in law.”” Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 383–84 (1992). The party seeking modification need not prove the change in circumstance was “unforeseen and unforeseeable” at the time of entering into the consent decree, but “[o]rdinarily, . . . modification should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree.” Id. at 385 (emphasis added). Here, clearly, the emergency resulting from the pandemic constitutes a “significant change in circumstances” that was not actually foreseen at the time the parties entered into the Consent Decree. Id. at 383.
The parties therefore meet the standard to modify the Consent Decree to permit appeal to this Court. In light of the urgency of the matter, the Court orders a two-track dispute resolution mechanism. The Parties are to proceed with mediation before Judge Ramirez on April 17, 2020, or an earlier date, if possible. (See Opp. at 10). The Court simultaneously assumes jurisdiction to enforce the Consent Decree to the extent specified in this Order.
The Court next turns to Defendant’s obligations under the Consent Decree. Plaintiff seeks to enforce the Consent Decree’s mandate to “meet the minimum level of health care necessary to fulfill Defendant’s obligations under the Eighth and Fourteenth Amendments,” (Dkt. 173 ¶ 9), by ensuring that Defendants implement the physical distancing recommendations made by the Court’s experts, (see Dkt. 178, Ex. J, Allen Expert Report, ¶¶ 9-10, 14-16; Dkt. 178, Ex. K, Gage Expert Report, ¶¶ 5-10.). Plaintiff argues that the County has several options available to limit the spread of the disease within the jails, including transferring prisoners to new, currently empty, John J. Benoit Detention Center (“JJBDC”) in Indio, California; relocating particularly vulnerable prisoners; and even release people to allow for physical distancing. (Motion at 4). At the hearing, Defendant did not have information regarding conditions in the existing county jail facilities, insisted that moving prisoners to a newly completed, empty jail in Indio was not feasible, and admitted that it had not researched alternative housing options such as recreation centers, halfway houses, and hotels. Rather than having created a plan to safeguard those most vulnerable to the COVID-19 virus, Defendant conceded that it has not conducted an analysis of its own records to identify particularly vulnerable prisoners. It also has not conducted an analysis of its jail population to determine whether there are any low-level offenders who might be eligible for early release.

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Despite Defendant’s insistence that conditions in the Riverside County jails are compliant with public health recommendations regarding social distancing, its counsel lacked information to respond to the Court’s questions regarding the ability to maintain 6 feet distance between all prisoners in the jail, at all times, its plan for doing so, the size of cells and dormitories, and the number of prisoners per room.
Defendant failed to provide satisfactory information about the feasibility of transfer of prisoners to other jail or non-jail facilities, including transfers of prisoners currently confined in crowded jails to the new, empty, John J. Benoit Detention Center (“JJBDC”) in Indio, California. The County states that it is “not-yet-ready to be populated” but provides no details as to why. (Opp. at 13). The County stated at the hearing that the facility was completed in February 2020, but maintained that it is not yet ready for prisoners. In their papers and at the hearing, Defendant argued that “[t]he Sheriff’s Department is currently in the midst of a ninety day ‘transition period’ of the facility to determine whether any issues arise that will need to be resolved before JJBDC can be populated with inmates.” (Dkt. 183-4, “Graves Decl.” ¶ 4). The County states that the technology used in the JJBDC facility differs from that of other County facilities, but did not explain, in its papers or at the hearing, why this would prevent the transfer of inmates in an emergency situation. (Graves Decl. ¶ 5).
Should the County be unable to implement adequate social distancing within its existing jail facilities and take other necessary steps to decrease risk of infection, this Court has the authority to order the transfer of prisoners to different facilities. Under California law, the Sheriff has the authority to relocate prisoners to respond to emergency situations:
In any case in which an emergency endangering the lives of inmates of a state, county, or city penal or correctional institution has occurred or is imminent, the person in charge of the institution may remove the inmates from the institution. He shall, if possible, remove them to a safe and convenient place and there confine them as long as may be necessary to avoid the danger, or, if that is not possible, may release them.
Other courts, including the Superior Court for the County of Sacramento County, already have ordered the Sheriff to use its authority under Cal. Gov't Code § 8658 to respond to the coronavirus emergency. See Order Authorizing Sacramento County Sheriff’s Department to Grant Release (Cal. Super. Ct., Sac. Cty., Mar. 25, 2020).
Defendant argues that the Prison Litigation Reform Act (“PLRA”) precludes this Court from ordering the release of prisoners. Even assuming this is true, nothing in the

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PLRA prohibits a district judge from ordering the transfer of prisoners in response to violations of their constitutional rights, as the district court did in Brown v. Plata, 2013 WL 3200587, No. C01-1351 TEH (N.D. Cal. June 24, 2013), nor would it prohibit the Court from ordering the Sheriff to use his authority under § 8658 to transfer prisoners.
“[A]n order to transfer any single inmate out of a prison to correct the violation of a constitutional right” where a “transfer was necessary for the inmate to obtain appropriate medical care” is not a “prisoner release order,” but rather a transfer. Plata v. Brown, 2013 WL 3200587 at *8. The same is true of “a policy that would result in transfer of a large group of inmates.” Id. Indeed, several potential courses of action qualify as “transfer” for the purposes of the PLRA. Relocation to halfway houses, for example, is a “transfer” rather than “release.” The PLRA defines a “residential reentry center” as a form of “prerelease custody.” See 18 U.S.C. § 3624(g)(2)(B) (“A prisoner placed in prerelease custody pursuant to this subsection who is placed at a residential reentry center shall be subject to such conditions as the Director of the Bureau of Prisons [(BOP)] determines appropriate.”). Ninth Circuit case law assumes that a person in a “residential reentry center” is a “prisoner” and subject to BOP control. See, e.g., Bottinelli v. Salazar, 929 F.3d 1196, 1200 (9th Cir. 2019) (citing 18 U.S.C. § 3624(c)(1) as “requiring that the BOP, ‘to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term’ in prerelease custody”).
In Plata v. Brown, the court declined to decide which standard governs the court’s review of such requests for transfer, finding that the Plata plaintiffs could satisfy the most burdensome standard. That standard “would require [them] to demonstrate that the [transfer] policy must be enforced because failure to do so would result in deliberate indifference under the Eighth Amendment.” Id. at *10. The Court makes no determination here as to whether Plaintiff has met this standard, but notes that the County’s recitation of “aggressive and swift” measures it has taken in response to COVID-19, none of which concern jails, suggests that the County’s failure to act to protect inmates does indeed constitute deliberate indifference. (Opp. at 16). The County’s assurances that it has provided unlimited free soap to prisoners and advised prisoners to remain physically distant—without establishing that it is physically possible to do so—is unlikely to be sufficient to defeat a claim of deliberate indifference (or sufficient to defeat the request to transfer prisoners for health reasons).
In sum, Defendant has failed to demonstrate that it is currently taking adequate precautions to protect the health of the prisoners in the county jails. Plaintiff’s request that Defendant be required “to submit a plan to the Court to implement the Governor’s order for physical distancing for all Californians housed in the jails” (Motion at 3-4), is therefore GRANTED.

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Plaintiffs are instructed to submit a proposed order detailing the findings and outstanding questions from the April 13, 2020 hearing no later than 4:00 p.m. on April 15, 2020. Prior to submission to the Court, Plaintiff shall share the proposed order with Defendant, who may approve the it as to form and content or submit objections to Court thereafter.
IT IS SO ORDERED.

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EXHIBIT

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

MARIA ALEJANDRA CELIMEN SAVINO, )

JULIO CESAR MEDEIROS NEVES,

)

and all those similarly situated, )

)

Petitioners, )

)

v.

)

)

STEVEN J. SOUZA, Superintendent of )

Bristol County House of Corrections)

in his official capacity,

)

)

Respondent. )

)

CIVIL ACTION NO. 20-10617-WGY

YOUNG, D.J.

April 8, 2020

MEMORANDUM & ORDER

I. INTRODUCTION

This habeas petition reflects the petitioners’ dire

personal circumstances and legal grievances. Yet it also speaks

to the shared anxieties of a world brought to its knees by the

pandemic of the novel coronavirus, dubbed COVID-19. It reaches

the Court at an especially grim moment.1 The petitioners are

civil immigration detainees who say they are held in tight

quarters and unable to keep safe distance from others who may --

1 See Sarah Westwood, Surgeon General: This Week Will Be Like a ‘Pearl Harbor’ and ‘9/11’ Moment, CNN (Apr. 5, 2020 1:25 pm), https://www.cnn.com/2020/04/05/politics/jerome-adamscoronavirus/index.html.

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and with time, inevitably will -- carry the highly contagious virus. They demand release or implementation of social distancing and other hygienic practices recommended by infectious disease experts.
Pending before this Court are their petition for a writ of habeas corpus, their motion for class certification, and their motion for a preliminary injunction. The Court is not yet ready to rule on the underlying habeas petition or the motion for a preliminary injunction. Rather, the Court ALLOWS the motion for class certification, with slight modification, and takes this opportunity to explain its reasoning with respect to bail. For the health and safety of the petitioners -- as well as the other inmates, staff, and the public –- the Court will expeditiously consider bail for appropriate detainees.
A. Factual Background The named petitioners are two of approximately 148 individuals (the “Detainees”) detained by Immigration and Customs Enforcement (“ICE”) on civil immigration charges and held at the Bristol County House of Corrections (“BCHOC”) in North Dartmouth, Massachusetts. Pet. Writ Habeas Corpus (“Pet.”) ¶ 1, ECF No. 1; Opp’n Mot. TRO (“Opp’n”), Ex. A, Aff. Sheriff Thomas H. Hodgson (“Hodgson Aff.”) ¶ 6(o), ECF No. 26-1.2
2 Though Sheriff Hodgson’s affidavit, dated March 29, 2020, states that there are 148 ICE detainees in the BCHOC, the
[2]

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The Detainees are held in two on-site facilities: ninety-two are
in a separate ICE facility called the C. Carlos Carreiro
Immigration Detention Center (“Carreiro”), and the rest are
housed in a portion of the BHCOC called “Unit B” together with non-immigration pre-trial detainees. Id.; Pet. ¶ 1; Opp’n 2.3
Since February, the respondent (“the government”) asserts,
the medical team and administration of BCHOC “have instituted
strict protocols to keep inmates, detainees and staff safe and
take all prudent measures to prevent exposure to the COVID- 19
infection.” Hogdson Aff. ¶ 5. Entrance into the facilities by
outsiders is now generally prohibited; attorneys, clergy, and
staff are “medically screened prior to entrance by questions
relating to COVID-19 symptoms and by body temperature
assessment.” Id. ¶ 6(a)-(d). Inmates and detainees who are
over 60-years-old or are immuno-compromised “are being specially
monitored.” Id. ¶ 6(k). In addition:
All housing units are sanitized no less than three times per day. Fresh air is constantly circulated by opening windows and utilizing handler/vents throughout the day. All feeding is done inside the housing or
government provided the Court (in a submission dated April 1, 2020) with a list of 147 names received from ICE that it represented as a complete roster of ICE detainees at BCHOC. The Court expects that this discrepancy be cleared up quickly.
3 The government explains that “[o]nly detainees who have been classified by ICE as high risk, typically based upon violent behavior (and not in any way related to COVID-19), are housed with non-immigration pre-trial inmates, but this is not in the general population.” Opp’n 2.
[3]

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cells and inmates do not congregate for meals in the main dining hall. Outside recreation is done as usual daily except that it is now done on split schedule to prevent close inmate-to-inmate contact. Id. ¶ 6(f). According to BCHOC’s medical director, Dr. Nicholas J. Rencricca, “we are doing all that we can to reduce the risk of a COVID-19 outbreak within BCHOC.” Aff. Nicholas J. Rencricca, MD, PhD ¶ 24. As of April 8, 2020, “there have been no inmates or immigration detainees who have presented with, or have tested positive for, COVID-19” at BCHOC, though one “unit intake nurse tested positive for COVID-19” and she last showed up to work on March 24. Decl. Debra Jezard ¶ 8; Def.’s Input Apr. 8 List 1, ECF No. 58. The Detainees dispute much of this. They allege, for instance, that “BCHOC facilities lack adequate soap, toilet paper, and medical resources and infrastructure to address the spread of infectious disease or to treat people most vulnerable to illness.” Pet. ¶ 70. They also state that “[h]ygiene is . . . unavailable and unavailing under the[ir] conditions,” id. ¶ 6, and that they “are unaware of any meaningful safety measures enacted by Defendants since the inception of this crisis,” id. ¶ 28. Their “confinement conditions are a tinderbox,” the Detainees warn, “that once sparked will engulf the facility.” Id. ¶ 29. Yet there are important aspects of the Detainees’
[4]

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allegations that are substantially undisputed. Chief among these is the challenge of social distancing in BCHOC.
The Centers for Disease Control and Prevention (“CDC”) states that “COVID-19 spreads mainly among people who are in close contact (within about 6 feet) for a prolonged period,” and therefore recommends that everyone practice “social distancing” -- even among those with no symptoms, since the virus can be spread by asymptomatic people. CDC, Social Distancing, Quarantine, and Isolation (reviewed Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/social-distancing.html (last accessed Apr. 6, 2020). The CDC thus advises that everyone “[s]tay at least 6 feet (2 meters) from other people.” Id. The CDC has issued guidance specifically for prisons and detention centers that beat the same drum. CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, at 4 (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf (“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.”); id. (“Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce
[5]

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the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic).”).
The Detainees assert that they “find it impossible to maintain the recommended distance of 6 feet from others” and they “must also share or touch objects used by others.” Pet. ¶ 67. They specifically allege that their beds “are situated only 3 feet apart” and that “[m]eals are inadequate and eaten in close quarters.” Pet. ¶ 68. Indeed, the government has provided the Court with photos of the sleeping quarters in the facility and this appears to be an accurate description.4 In one unit the “cell size” is listed as 30 feet by 10 feet (300 square feet), and the photo shows three bunk beds (sleeping six people) lining the wall. Other images supplied include a photo labeled “Bunk Area” that shows a large room packed with rows of bunk beds. None appears to enjoy anything close to six feet of isolation. One of the named petitioners, Mr. Neves, avers that he “is being held in the same room as 49 other people,” that his “bed is too close to other people,” and that he is “not able to
4 The government protests that “not every bed is filled and the minimal distance is believed to be between ends, not the long sides of beds.” Def.’s Suppl. Br. 9 n.6, ECF No. 41. The CDC’s guidelines are concerned with people, not furniture, so the Court does not see what bearing the government’s distinction (whether the beds are measured from their length or width) has upon the safety of the Detainees.
[6]

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engage in ‘social distancing.’” TRO Mem., Ex. 8, Decl. Julio Cesar Medeiros Neves ¶¶ 4-6, ECF No. 12-8.
The COVID-19 global pandemic threatens all of us. Yet “[t]he combination of a dense and highly transient detained population presents unique challenges for ICE efforts to mitigate the risk of infection and transmission.” Opp’n, Ex. 2, Memorandum from Enrique M. Lucero, ICE, to Detention Wardens & Superintendents 1 (Mar. 27, 2020), ECF No. 26-2. As the Supreme Judicial Court of Massachusetts recently explained in reference to statewide correctional facilities, including BCHOC, “correctional institutions face unique difficulties in keeping their populations safe during this pandemic.” Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, No. SJC-12926, 2020 WL 1659939, at *3 (Mass. Apr. 3, 2020). Indeed, BCHOC’s medical director acknowledged the obvious fact “that a prison setting poses particular challenges from an infectious disease standpoint,” while asserting that “the risk of infection is tempered by the degree of control we have over access to the facility.” Renricca Aff. ¶ 21.
The Detainees have provided affidavits from two physicians who have recently visited Detainees on site. Dr. Nathan Praschan of Massachusetts General Hospital states that “[t]he best-known methods of preventing infectious spread,” such as “social distancing, frequent hand washing, and sanitation of
[7]

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surfaces . . . are unavailable to . . . [these] detainees, who sleep, eat, and recreate in extremely close quarters and do not have access to basic hygienic supplies.” Decl. Dr. Nathan Praschan ¶ 9. Dr. Matthew Gartland of Brigham and Women’s Hospital avers that “based on my own experience visiting Bristol County House of Corrections, I do not believe that . . . [these] detainees, can be adequately protected from the virus that causes COVID-19. This is based on a lack of private sinks or showers and inadequate hand soap supplies, and hand sanitizers, as well as inadequate allowance for social distancing, screening for symptoms and exposure to the virus, testing of individuals with symptoms, and appropriate quarantine and isolation facilities.” Decl. Dr. Matthew Gartland ¶ 16.
B. Procedural History The Detainees filed a habeas petition as a putative class action in this Court on March 27, 2020. Pet. The petition asserts two claims: (1) violation of due process as a result of confinement in conditions “that include the imminent risk of contracting COVID-19,” id. ¶¶ 98-105; and (2) violation of section 504 of the Rehabilitation Act for failure to provide reasonable accommodations, in the form of protection against COVID-19, to Detainees with medical conditions, id. ¶¶ 105-116. On the same day, the Detainees filed a motion for a temporary restraining order (“TRO”), ECF No. 11, and a motion
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for class certification, ECF No. 13. As these motions refer only to the due process claim, the Detainees do not seek a TRO or class certification for their claim under the Rehabilitation Act. See Mem. Supp. Mot. Temporary Restraining Order (“TRO Mem.”), ECF No. 12; Mem. Supp. Pls.’ Mot. Class Cert. (“Class Cert. Mem.”), ECF No. 14; Reply Resp.-Def.’s Opp’n Mot. TRO (“Pet’rs’ Reply”) 16 n.6. The Government has opposed both motions. See Opp’n; Def.’s Suppl. Br., ECF No. 41.
The Court held an initial hearing on March 30, 2020, converting the motion for a TRO into a motion for a preliminary injunction.5 ECF No. 27. At the next hearing, on April 2, 2020, the Court provisionally certified five subclasses and took the other matters under advisement. Electronic Clerk’s Notes, ECF No. 36; see Order, ECF No. 38 (listing twelve members of first subclass). The following day, the Court held another hearing at which it was informed that the Government voluntarily agreed to release six members of the first subclass. The Court deemed the case moot as to those individuals, ordered release on bail under certain conditions for three other members of the subclass,6 and
5 All hearings in this matter have been held remotely by video conference in light of the danger posed by COVID-19.
6 The bail order was as follows: The Court grants bail to Henry Urbina Rivas, Robson Maria-De Oliveira, and Jervis Vernon pending resolution of the habeas corpus petition, upon all
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either denied bail without prejudice or continued the matter for the rest of the subclass. Order, ECF No. 44. The Court notified the parties that it would consider bail for fifty additional detainees, id. ¶ 6, and later set a schedule for considering those fifty individual bail applications at a rate of ten per day beginning on April 7, 2020. Order, ECF No. 46. It has since ordered bail for several more Detainees. See ECF Nos. 54-55.

bail conditions deemed appropriate and imposed by ICE, and the following additional terms and conditions as to each of them: (a) release only to an acceptable custodian; (b) such custodian will pick the releasee up outside the facility by car; (c) releasee will be taken from the facility to the place of residence previously identified to ICE (ICE shall notify the state and local law enforcement authorities about their presence and the[] details of their bail status); (d) releasees are to be fully quarantined for 14 days from date leaving facility to the residence; (e) during and after the 14-day quarantine, releasees will remain under house arrest, without electronic monitoring, and shall not . . . leave the residence for any reason save to attend immigration proceedings or attend to their own medical needs should those needs be so severe that they have to go to a doctor’s office or hospital (in which case they shall notify ICE as soon as practicable of their medical necessity); (f) releasees are not to be arrested by ICE officers unless: (i) upon probable cause a warrant is issued by a United States Magistrate Judge or United States District Judge that they have violated any terms of their bail, or (ii) there is a final order of removal making them presently removable from the United States within two weeks. The Court may, sua sponte or on motion of the parties, modify or revoke the bail provided herein.

Order ¶ 2, ECF No. 44.

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II. ANALYSIS This opinion tackles three issues. First, the Court
rejects the government’s argument that the Detainees lack Article III standing because their risk of injury is too speculative. Next, the Court certifies a general class of Detainees for their due process claim of deliberate indifference to a substantial risk of serious harm. Though there are indeed pertinent and meaningful distinctions among the various Detainees, there is a common question of unconstitutional overcrowding that binds the class together. Nor, contrary to the government’s assertion, is there a statutory bar to class certification in this case. Finally, the Court explains its rulings and authority in ordering bail for certain Detainees.
A. Article III Standing To satisfy constitutional standing in federal court, a habeas petitioner (like other litigants) “must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). The government argues the Detainees’ “claims of future injury are hypothetical” and “conjectural” because “crowding in and of itself does not cause COVID-19 infection if none in the group has contracted COVID-19.” Opp’n 15.
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The Court disagrees. The Supreme Court has held that
“future injuries” may support standing “if the threatened injury
is certainly impending, or there is a substantial risk that the
harm will occur.” Department of Commerce v. New York, 139 S.
Ct. 2551, 2565 (2019) (quoting Susan B. Anthony List v.
Driehaus, 134 S. Ct. 2334, 2341 (2014)). In this moment of
worldwide peril from a highly contagious pathogen, the
government cannot credibly argue that the Detainees face no
“substantial risk” of harm (if not “certainly impending”) from
being confined in close quarters in defiance of the sound
medical advice that all other segments of society now
scrupulously observe.7 See TRO Mem., Ex. 1, Decl. Alan S.
Keller, M.D. ¶ 10, ECF No. 12-1 (“[T]he risk of COVID-19
infection and spread in immigration detention facilities,
7 Amazingly, the government appears to make this argument. At the April 2 hearing, the government emphasized that no Detainee or inmate in BCHOC has yet tested positive for COVID-19 and argued that “if the Court starts from the position that the Court’s goal here is to reduce the concentration of inmates it has jumped past the presence, or non-presence, of the virus to an assumption that the virus is present and therefore we’re going to do everything we can to increase social distancing.” In a later filing the government reiterated the point: “It is ICE’s position, for the record, that release of none of the listed individuals is required for either their safety or the safety of the remaining civil detainee population at BCHOC.” Defs.’ Input Regarding Apr. 7 List 1, ECF No. 50. Yet the government’s quarrel is not with the Court but with the vigorous recommendations of infectious disease experts worldwide, including in the federal government, to maximize social distancing.
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including Bristol County, is extremely high.”). This risk of
injury is traceable to the government’s act of confining the
Detainees in close quarters and would of course be redressable
by a judicial order of release or other ameliorative relief.
Accordingly, the Court rules that the Detainees easily meet
Article III’s standing requirements. B. Class Certification The Detainees moved to certify the following proposed
class: “All civil immigration detainees who are now or will be
held by Respondents-Defendants at the Bristol County House of
Corrections (BCHOC) and the C. Carlos Carreiro Immigration
Detention Center (“Carreiro”) in North Dartmouth,
Massachusetts.” Class Cert. Mem. 9. At the hearing on April 2,
2020, the Court declined to certify the class as proposed but
provisionally certified five subclasses. Electronic Clerk’s Notes, ECF No. 36.8 The Court does not now revisit that
8 The Court described the five provisionally certified subclasses as follows:
Group 1: Detainees with no criminal record and no pending criminal charges.
Group 2: Detainees with medical conditions recognized under the CDC guidelines as heightening their risk of harm from COVID19 and who have minor, non-violent criminal records or minor, non-violent criminal charges pending.
Group 3: Detainees without the medical conditions of Group 2 but who likewise have minor criminal records or minor, primarily non-violent criminal charges pending.
Group 4: Detainees with pending criminal charges against them for violent crimes, either in the United States or abroad.
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provisional ruling.9 Yet it does, for the reasons given below,
now certify the general class as proposed by the Detainees,
albeit excluding those not yet in custody.
1. Bar on Classwide Injunction in Immigration Matters
The government first argues that the proposed class cannot
be certified because 8 U.S.C. § 1252(f)(1) bars courts (other
than the Supreme Court) from enjoining or restraining the
“operation” of immigration enforcements actions except in their
application to “an individual alien against whom proceedings
under such chapter have been initiated.” Opp’n 9. The
government cites dicta from Reno v. American Arab Anti-
Discrimination Comm. indicating that classwide injunctive relief
Group 5: Detainees with criminal convictions for violent crimes, either in the United States or abroad.
9 The government argues, without citation to authority, that “Rule 23(c)(5) requires that there be a class first before subclasses are created.” Def.’s Suppl. Br. 8. The Court has found only one judicial opinion seemingly endorsing that view, Sprague v. General Motors Corp., 133 F.3d 388, 399 n.9 (6th Cir. 1998) (en banc), while the Eleventh Circuit disagrees, Klay v. Humana, Inc., 382 F.3d 1241, 1261–62 (11th Cir. 2004). See 3 William B. Rubenstein, Newberg on Class Actions § 7:29 n.1 (5th ed. 2019) (citing circuit split); Scott Dodson, Subclassing, 27 Cardozo L. Rev. 2351, 2389 (2006) (concluding that “the best interpretation” of Fed. R. Civ. P. 23 allows subclasses to be certified in the absence of a valid general class). The First Circuit recently suggested that “[t]he commonality standard might also be satisfied in some cases by certifying subclasses.” Parent/Professional Advocacy League v. City of Springfield, 934 F.3d 13, 29 n.15 (1st Cir. 2019) (citing Mark C. Weber, IDEA Class Actions After Wal-Mart v. Dukes, 45 U. Tol. L. Rev. 471, 498-500 (2014)). In any case, because the Court now certifies the general class, the question is academic.
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is simply not available in immigration cases. 525 U.S. 471, 481-82 (1999) (describing § 1252(f) as “prohibit[ing] federal courts from granting classwide injunctive relief against the operation of [8 U.S.C.] §§ 1221–1231”). Thus, the government appears to argue, the Court cannot certify this class now because it will not later be able to provide classwide relief.
Yet section 1252(f) says nothing about declaratory relief, which the Detainees expressly request here in addition to injunctive relief. Pet. 24. Accordingly, this provision does not bar declaratory relief and therefore poses no obstacle to class certification. See Reid v. Donelan, 390 F. Supp. 3d 201, 226 (D. Mass. 2019) (Saris, C.J.); Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018); Alli v. Decker, 650 F.3d 1007, 1014 (3d Cir. 2011). Seeking to avoid this conclusion, the government cites a Sixth Circuit decision for the proposition that declaratory relief may be the “functional equivalent” of a prohibited classwide injunction. Opp’n 11 (quoting Hamama v. Adducci, 912 F.3d 869, 880 n.8 (6th Cir. 2018)). The Sixth Circuit opinion was issued after three Justices argued to the contrary in Jennings v. Rodriguez, 138 S. Ct. 830, 876 (2018) (Breyer, J., dissenting), but before three other Justices agreed, see Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) (plurality opinion). With six Justices of the current Supreme Court now on record stating that section 1252(f) does not bar
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declaratory relief, and because that is the better reading of the statute, the Court adheres to that view. See Reid, 390 F. Supp. 3d at 226; Reid v. Donelan, No. 13-30125-PBS, 2018 WL 5269992, at *7-8 (D. Mass. Oct. 23, 2018) (Saris, C.J.).
This is not to suggest that injunctive relief will be categorically unavailable in this case. See Marin, 909 F.3d at 256 (allowing a classwide injunction when all members of the class were individuals against whom detention proceedings had been initiated, in accordance with the exception contained in section 1252(f)(1)). Nor does the Court intimate that it will eventually provide any relief at all, since it has not yet reached the merits. At this class certification stage, it is enough to establish that the Court could provide a classwide remedy in the form of a declaratory judgment or injunctive relief. Having established that, the Court rejects the government’s argument that section 1252(f) precludes class certification.
2. The Requirements of Rule 23 “To obtain class certification, the plaintiff must establish the four elements of [Fed. R. Civ. P.] 23(a) and one of several elements of Rule 23(b).” Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 38 (1st Cir. 2003) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997)). Rule 23(a) permits class certification only if:
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(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). In addition to establishing these four elements, the Detainees must satisfy one of Rule 23(b)’s categories. The Detainees rely on Rule 23(b)(2), Class Cert. Mem. 16-17, which permits class certification when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Since numerosity and adequacy appear well-founded, the government challenges only the commonality and typicality of the proposed class. Opp’n 13 (“The proposed class lacks uniformity and the Plaintiffs are not representative of the proposed class members.”). Though commonality and typicality are distinct elements under Rule 23(a), the Supreme Court has repeatedly recognized that they “tend to merge.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 n.5 (2011) (quoting General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)). Indeed, the government attacks both commonality and typicality with the same set of arguments. The gist of the government’s contention on
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this score is that the various detainees are not “similarly situated” because they “are of different ages and all present different levels of health at this time.” Opp’n 12. Furthermore, the government points out that some detainees are subject to statutorily mandated detention while others are not, and that “each detainee presents a different risk of flight and/or public safety threat if released.” Id. Accordingly, the Court treats commonality and typicality together.
To establish commonality under Rule 23(a)(2), one common question is enough. Wal-Mart, 564 U.S. at 359. “A question is common if it is ‘capable of classwide resolution -- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’” Parent/Professional Advocacy League v. City of Springfield, 934 F.3d 13, 28 (1st Cir. 2019) (quoting Wal-Mart, 564 U.S. at 350). It is not critical whether common “questions” are raised; the decisive factor is “the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. (quoting Wal-Mart, 564 U.S. at 350).
The Detainees frame the common question as follows: “Whether the conditions of confinement at Bristol County Immigration Detention Facilities, under the current conditions and in light of the COVID-19 pandemic, render class members’
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confinement a punishment that violates constitutional standards.” Class Cert. Mem. 18-19. Here, as is typical in the Rule 23 commonality inquiry, “proof of commonality necessarily overlaps with [the Detainees’] merits contention.” Wal-Mart, 564 U.S. at 352. Accordingly, the Court now discusses the merits of the Detainees’ constitutional claim, but only to the extent necessary to decide the class certification question. See Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013) (“Merits questions may be considered to the extent -- but only to the extent -- that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”).
When the government “so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e.g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses . . . the Due Process Clause.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989). The due process guarantee of the Constitution obliges the government “to refrain at least from treating a pretrial detainee with deliberate indifference to a substantial risk of serious harm to health.” Coscia v. Town of Pembroke, 659 F.3d 37, 39 (1st Cir. 2011) (citing City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) & Farmer v. Brennan, 511
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U.S. 825, 835 (1994)). “Proof of deliberate indifference requires a showing of greater culpability than negligence but less than a purpose to do harm,” id. (citing Farmer, 511 U.S. at 835), “and it may consist of showing a conscious failure to provide medical services where they would be reasonably appropriate,” id. (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “To show such a state of mind, the plaintiff must provide evidence that the defendant had actual knowledge of impending harm, easily preventable, and yet failed to take the steps that would have easily prevented that harm.” Leite v. Bergeron, 911 F.3d 47, 52-53 (1st Cir. 2018) (quoting Zingg v. Groblewski, 907 F.3d 630, 635 (1st Cir. 2018) (further citation and internal quotation marks omitted). “This standard, requiring an actual, subjective appreciation of risk, has been likened to the standard for determining criminal recklessness.” Id. at 53 (quoting Giroux v. Somerset Cty., 178 F.3d 28, 32 (1st Cir. 1999)). Courts generally apply the same standard for civil immigration detainees as for pre-trial detainees. See E. D. v. Sharkey, 928 F.3d 299, 306-07 (3d Cir. 2019) (stating that “the legal rights of an immigration detainee [are] analogous to those of a pretrial detainee” and collecting cases of other circuits).
With this legal background in mind, it is understandable why the government highlights the differences among the Detainees. For example, it may be easier for Detainees who are
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at heightened risk of harm from COVID-19 to prove the “substantial risk of serious harm” prong of the inquiry than it will be for healthier Detainees who lack special risk factors. Detainees with a serious criminal background might have a tougher time demonstrating that the government could “have easily prevented that harm” by releasing them on bond, for instance. Indeed, these very considerations guided the Court in provisionally certifying five separate subclasses.
Upon reflection, however, the Court determines that the admittedly significant variation among the Detainees does not defeat commonality or typicality. At bottom, a common question of law and fact in this case is whether the government must modify the conditions of confinement -- or, failing that, release a critical mass of Detainees -- such that social distancing will be possible and all those held in the facility will not face a constitutionally violative “substantial risk of serious harm.” Farmer, 511 U.S. at 847. Crucial to the Court’s determination is the troubling fact that even perfectly healthy detainees are seriously threatened by COVID-19. To be sure, the harm of a COVID-19 infection will generally be more serious for some petitioners than for others. Yet it cannot be denied that the virus is gravely dangerous to all of us.
Consider recent data from the CDC. In a sample of COVID-19 patients aged 19 and older with no underlying health conditions
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or risk factors, approximately 7.2-7.8% were hospitalized without requiring admission to the Intensive Care Unit (“ICU”), and an additional 2.2-2.4% were hospitalized in the ICU, totaling 9.6-10.4%. If the pool is restricted to patients between the ages of 19 and 64, all with no underlying health conditions reported, approximately 6.2-6.7% were hospitalized without admission to the ICU, and an additional 1.8-2.0% required the ICU, for a total hospitalization rate of 8-8.7%. The rates of hospitalization and ICU admittance are significantly higher for those with underlying health conditions.10 Since COVID-19 is highly contagious and the quarters are close, the Detainees’ chances of infection are great. Once infected, taking hospitalization as a marker of “serious harm,” it is apparent that even the young and otherwise healthy detainees face a “substantial risk” (between five and ten percent) of such harm.
Likewise, the “deliberate indifference” part of the inquiry, which asks whether the government “disregards th[e]
10 See Nancy Chow et al., CDC COVID-19 Response Team, Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12–March 28, 2020, 69 Morbidity & Mortality Weekly Report 382, 382-84 (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6913e2-H.pdf. It must be emphasized that this data is partial and preliminary. See id. at 384-85 (listing six limitations on the report’s findings).
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risk by failing to take reasonable measures to abate it,” Farmer, 511 U.S. at 847, is apt to generate a common answer for the entire class of Detainees. The question is not so much whether any particular Detainee should be released -- a matter as to which the various individuals are surely differently situated. Rather, the question is whether the government is taking reasonable steps to identify those Detainees who may be released in order to protect everyone from the impending threat of mass contagion. Nor does it matter how the density of Detainees is reduced. Transfer to less crowded facility, deportation, release on bond, or simply declining to contest lawful residence -- any of these methods would effectively minimize the concentration of people in the facility. This affords the government greater flexibility and minimizes the differences among the various Detainees.
The case law supports a finding of commonality for class claims against dangerous detention conditions, even when some detainees are more at risk than others. For example, the Ninth Circuit affirmed class certification for an Eighth Amendment challenge to inmate medical care policies, explaining that “although a presently existing risk may ultimately result in different future harm for different inmates -- ranging from no harm at all to death -- every inmate suffers exactly the same constitutional injury when he is exposed to a single statewide
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[department of corrections] policy or practice that creates a substantial risk of serious harm.” Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014). Similarly, the Fifth Circuit affirmed class certification of all prisoners in an overheated prison, despite the variations in health and risk among prisoners, because the prison authority’s “heat-mitigation measures . . . were ineffective to reduce the risk of serious harm to a constitutionally permissible level for any inmate, including the healthy inmates.” Yates v. Collier, 868 F.3d 354, 363 (5th Cir. 2017). Here, too, even the otherwise healthy Detainees face a substantial risk of serious harm from COVID-19. The commonality analysis of Parsons and Yates is persuasive and has been approvingly cited by the First Circuit. See Parent/Professional, 934 F.3d at 28 n.14. Accordingly, the Court rules that the commonality and typicality prongs of the Rule 23(a) analysis are satisfied.
Before certifying the class, the Court pauses to consider the uniformity of remedy required by Rule 23(b)(2). See WalMart, 564 U.S. at 360 (holding that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.”). Thus, the Court may certify the class
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only if it would be entitled to an “indivisible” remedy. Id. The Court concludes that a uniform remedy would be possible in this case, whether in the form of declaratory relief or (depending on the proper reading of 8 U.S.C. § 1252(f), as alluded to above) an injunction ordering the government to reduce crowding of Detainees. Cf. Brown v. Plata, 563 U.S. 493, 502 (2011) (affirming classwide injunction of “court-mandated population limit” in state prisons to remedy Eighth Amendment violations due to “severe and pervasive overcrowding”).
Thus, the requirements of Rule 23 are met and the Court certifies the general class as proposed by the Detainees, with one caveat: The Court declines to include those who “will be held,” Class Cert. Mem. 9, but are not yet in custody. Although the government has not declared that it will not admit more detainees to BCHOC during this health crisis, it has agreed to notify the Court before doing so. Tr. Hr’g 25, ECF No. 48. The Court sees no need to include possible future detainees in this class. Moreover, since the situation is rapidly evolving and future detainees may well be subject to different confinement conditions than those now obtaining, it may be that the named representative cannot “fairly and adequately protect the interests” of those future detainees. Fed. R. Civ. P. 23(a)(4); cf. Amchem, 521 U.S. at 625-26 (holding that differences between
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currently injured and not-yet-injured members of proposed class defeated adequacy requirement).
C. The Court’s Inherent Authority to Order Bail The Court now turns to explain its decision to order bail for several Detainees and to consider bail applications for others. The First Circuit has explained “that a district court entertaining a petition for habeas corpus has inherent power to release the petitioner pending determination of the merits.” Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972) (per curiam). Such authority may be exercised in the case of “a health emergency,” where the petitioner has also demonstrated a likelihood of success on the merits. Id. For example, Woodcock approvingly cited Johnston v. Marsh, in which the Third Circuit affirmed the decision of the district court granting bail to a habeas petitioner who, “as an advanced diabetic, was, under conditions of confinement, rapidly progressing toward total blindness.” 227 F.2d 528, 529-32 (3d Cir. 1955). In Mapp v. Reno, the Second Circuit held that “the federal courts have the same inherent authority to admit habeas petitioners to bail in the immigration context as they do in criminal habeas case.” 241 F.3d 221, 223 (2d Cir. 2001). A court considering bail for a habeas petitioner “must inquire into whether ‘the habeas petition raise[s] substantial claims and [whether] extraordinary circumstances exist[] that make the grant of bail necessary to
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make the habeas remedy effective.’” Id. at 230 (alterations in
original) (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.
1981)).
Other courts, including another session of this Court, have
recently relied on Mapp to order bail for habeas petitioners who
were civil immigration detainees at risk due to the COVID-19
pandemic. See Avendaño Hernandez v. Decker, No. 20-CV-1589
(JPO), 2020 WL 1547459, at *2-4 (S.D.N.Y. Apr. 1, 2020); Jimenez
v. Wolf, Civ. A. No. 18-10225-MLW, Memorandum & Order (“Jimenez
Order”), ECF No. 507 (D. Mass. Mar. 26, 2020) (Wolf, J.). As
expressed during the hearing on April 3, the Court follows these
precedents in construing its authority to order bail for habeas
petitioners under the reigning “exceptional circumstances,”
Glynn v. Donnelly, 470 F.2d 95, 98 (1972), of this nightmarish
pandemic. Like Judge Wolf in Jiminez and Judge Oetken in
Hernandez, this Court ruled that bail was appropriate for some Detainees on the basis of Mapp and its First Circuit analogues.11
11 The First Circuit in Glynn stated that bail should not be ordered without “a clear case” on both the law and the facts, and that “Merely to find that there is a substantial question is far from enough,” 470 F.2d at 98, and Woodcock indicated that a finding of likelihood of success on the merits may be needed, 470 F.2d at 94. This contrasts with Mapp, which required only (apart from the presence of extraordinary circumstances) that the petitioner raise “substantial claims.” 241 F.3d at 230. Yet, as Judge Wolf observed, the First Circuit cases were dealing with a state prisoner convicted of a crime and for that reason insisted upon a higher standard, see Glynn, 470 F.2d at 98, whereas here “the Mapp test or something similar or perhaps
[27]

CCaassee 81::2200--ccvv--0110062187--PWXGYDoDcuomcuemnte3n-t264FilFeidle0d40/241/0/280/20PaPgaeg1e3208oof f12490
Additionally, the Court follows the light of reason and the
expert advice of the CDC in aiming to reduce the population in
the detention facilities so that all those who remain (including
staff) may be better protected. In this respect, the Supreme
Judicial Court of Massachusetts has articulated sound
principles: “[T]he situation is urgent and unprecedented, and .
. . a reduction in the number of people who are held in custody
is necessary,” but “the process of reduction requires
individualized determinations, on an expedited basis, and, in
order to achieve the fastest possible reduction, should focus
first on those who are detained pretrial who have not been
charged with committing violent crimes.” Committee for Pub. Counsel Servs., 2020 WL 1659939, at *9.12 The Court will proceed
in a similar fashion in diligently entertaining bail
applications while the petitions for habeas corpus are pending.
less is appropriate.” Jimenez Order, Ex. 1, at 1-2, ECF No. 507-1. This Court agrees, though it makes little difference because the Detainees released on bail would also satisfy a more exacting standard.
12 With respect to federal prisons, Congress responded to the pandemic by expressly authorizing the Bureau of Prisons to exceed the statutory maximum period of home confinement if the Attorney General makes a finding of “emergency conditions,” CARES Act, Pub. L. No. 116-136, § 12003(b)(2) (2020), and the Attorney General has now found such an emergency. See Memorandum of Attorney General William Barr to Director of Bureau of Prisons (Apr. 3, 2020), https://www.politico.com/f/?id=00000171-4255-d6b1-a3f1c6d51b810000.
[28]

CCaassee 81::2200--ccvv--0110062187--PWXGYDoDcuomcuemnte3n-t264FilFeidle0d40/241/0/280/20PaPgaeg1e3219oof f12490 III. CONCLUSION
The motion for class certification is ALLOWED. The Court now certifies the following class: “All civil immigration detainees who are now held by Respondents-Defendants at the Bristol County House of Corrections and the C. Carlos Carreiro Immigration Detention Center in North Dartmouth, Massachusetts.” The named petitioners in this action, Maria Alejandra Celimen Savino and Julio Cesar Medeiros Neves, are appointed class representatives.
SO ORDERED. /s/ William G. Young WILLIAM G. YOUNG DISTRICT JUDGE
[29]

Case 8:20-cv-01028-PX Document 3-2 Filed 04/21/20 Page 132 of 140
EXHIBIT

CCaasese81:2:108-c-vc-v0-110022285-P-MXLWDocDuomceunmt e3n-2t 50F7iledFi0le4d/2013/2/206/2P0agPea1g3e31ofo1f 410

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

LILIAN PAHOLA CALDERON JIMENEZ

)

AND LUIS GORDILLO, ET AL.,

)

individually and on behalf of all )

others similarly situated,

)

)

Petitioners-Plaintiffs,

)

)

v.

)

)

CHAD WOLF, ET AL.,

)

)

Respondents-Defendants.

)

C.A. No. 18-10225-MLW

MEMORANDUM AND ORDER

WOLF, D.J.

March 26, 2020

Attached is a transcript of the decision, issued orally on March 25, 2020, granting the Motion for Immediate Interim Release of Class Member Salvador Rodriguez-Aguasviva (Docket No. 500).

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 Case 8:20-cv-01028-PX Document 4 Filed 04/21/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

KEITH SETH, et al., Individually and on behalf of a class of similarly situated persons,
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections,
Defendant-Respondent.

)

)

)

)

)

)

Case No.

)

)

)

)

)

)

)

)

)

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs respectfully move this Court to certify a class and appoint undersigned counsel as class counsel under Rule 23 of the Federal Rules of Civil Procedure. For the reasons stated in the Memorandum in Support of the Motion for Class Certification, filed contemporaneously herewith, certification of the classes and subclass specified therein is warranted under the Rule, and the undersigned is appropriate to serve as class counsel.

Respectfully submitted on April 21, 2020,
By /s/Elizabeth Rossi Elizabeth Rossi Bar No. 19616 Katherine Chamblee-Ryan application to the Bar of this Court pending Olevia Boykin application forthcoming Ryan Downer

Case 8:20-cv-01028-PX Document 4 Filed 04/21/20 Page 2 of 2
application pending CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Suite 800 Washington, D.C. 20009 katie@civilrightscorps.org 610-931-7715 Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
1
1 /s/Elizabeth Rossi

Case 8:20-cv-01028-PX Document 4-1 Filed 04/21/20 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

KEITH SETH, et al., Individually and on behalf of a class of similarly situated persons,
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections.
Defendant-Respondent.

)

)

)

)

)

)

Case No.

)

)

)

)

)

)

)

)

)

MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 8:20-cv-01028-PX Document 4-1 Filed 04/21/20 Page 2 of 19

TABLE OF CONTENTS

INTRODUCTION

5

CLASS DEFINITION

5

BACKGROUND AND SUMMARY OF ARGUMENT

6

ARGUMENT

9

I. Plaintiffs Satisfy Rule 23(a): They Are Numerous and Raise Common Questions, and the

Named Plaintiffs Are Adequate Representatives With Typical Claims.

10

A. Numerosity is Satisfied: The Class and Subclasses Each Include Hundreds of

Members.

10

B. Commonality is Satisfied: The Legality of Defendant’s Response to the Pandemic

Involves Numerous Common Questions of Fact and Law.

11

C. Typicality is Satisfied: The Named Plaintiffs’ Claims are Representative of Those of

the Class at Large.

15

D. The Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Class

and Subclasses.

16

II. Certification of the Classes and Subclass for Prospective Relief is Appropriate Under

Fed. R. Civ. P. 23(b)(2)

17

CONCLUSION

19

2

Case 8:20-cv-01028-PX Document 4-1 Filed 04/21/20 Page 3 of 19

TABLE OF AUTHORITIES

Cases

Abadia-Piexoto v. United States Dep’t of Homeland Sec., 277 F.R.D. 572 (N.D. Cal. 2011) 14

Anderson v. Garner, 22 F. Supp. 2d 1379, 1385 (N.D. Ga. 1997)

16

Areola v. Godinez, 546 F.3d 788, 798 (7th Cir. 2008)

17

Barragan v. Evanger's Dog & Cat Food Co., 259 F.R.D. 330, 333 (N.D. Ill. 2009)

11

Bradley v. Harrelson, 151 F.R.D. 422, 427 (M.D. Ala. 1993)

24

Brown v. Plata, 563 U.S. 493, 506 (2011)

24

Bruscino v. Carlson, 854 F.2d 162, 164 (7th Cir. 1988)

24

Bullock v. Sheahan, 225 F.R.D. 227, 230 (N.D. Ill. 2004)

17

Butler v. Suffolk Cnty., 289 F.R.D. 80, 98 (E.D.N.Y. 2013)

14

Coleman v. County of Kane, 196 F.R.D. 505, 507 (N.D. Ill. 2000)

15

Corey H. v. Bd. of Educ. of City of Chi., 2012 WL 2953217, at *7 (N.D. Ill. Jul. 19, 2012) 15

De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)

17

Fonder v. Sheriff of Kankakee County, 2013 WL 5644754, at *6 (C.D. Ill. Oct. 15, 2013) 16

French v. Owens, 777 F.2d 1250, 1251 (7th Cir. 1985)

24

Gaspar v. Linvatec Corp., 167 F.R.D. 51, 57 (N.D. Ill. 1996)

16, 17

Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011)

18

Green v. Mansour, 474 U.S. 64 (1985)

17

Hadi v. Horn, 830 F.2d 779, 781 (7th Cir. 1987)

24

Hughes v. Judd, 2013 WL 1821077, at *23 (M.D. Fla. Mar. 27, 2013)

14

Ingles v. City of New York, 2003 WL 402565, at *5 (S.D.N.Y. Feb. 20, 2003)

16

Inmates of Attica Corr. Facility v. Rockefeller, 453 F.2d 12, 24-25 (2d Cir. 1971)

16

Johnson v. General Motors Corp., 598 F.2d 432, 435 (5th Cir. 1979)

24

Johnson v. Meriter Health Servs. Emp. Ret. Plan, 702 F.3d 364, 368 (7th Cir. 2012)

10

Jones 'El v. Berge, 374 F.3d 541 (7th Cir. 2004)

24

Jones v. Blinziner, 536 F. Supp. 1181, 1190 (N.D. Ind. 1982)

16

Jones v. Diamond, 519 F.2d 1090, 1097 (5th Cir. 1975)

24

Jones v. Guzman, 296 F.R.D. 416, 465-66 (E.D. La. 2013)

14

Kanter v. Casey, 43 F.3d 48, 58 (3d Cir. 1994)

24

King v. Kan. City S. Indus., 519 F.2d 20, 25-26 (7th Cir. 1975)

13

M.D. v. Perry, 294 F.R.D. 7, 35 (S.D. Tex. 2013)

14

Marcera v. Chinlund, 595 F.2d 1231, 1240 (2d Cir. 1979

24

Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009)

17

Olson v. Brown, 284 F.R.D. 398, 410-11 (N.D. Ind. 2012)

14, 16

Parish v. Sheriff of Cook County, 2008 WL 4812875, at *4 (N.D. Ill. Oct. 24, 2008)

17

Parsons v. Ryan, 289 F.R.D. 513, 516-23 (D. Ariz. 2013)

14

Rodriguez v. Swank, 318 F. Supp. 289, 294 (N.D. Ill. 1970)

18

Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992)

10, 13

Rosas v. Baca, 2012 WL 2061694, at *3 (C.D. Cal. June 7, 2012)

14

Ross v. Gossett, 2020 WL 1472072, at *3-4 (S.D. Ill. Mar. 26, 2020)

14

Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 374 (1992)

24

Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 185 (N.D. Ill. 1992)

13

Sosna v. Iowa, 419 U.S. 393 (1975)

16

Streeter v. Sheriff of Cook Cty., 256 F.R.D. 609, 612 (N.D. Ill. 2012)

11, 17

3

Case 8:20-cv-01028-PX Document 4-1 Filed 04/21/20 Page 4 of 19

United States ex rel. Morgan v. Sielaff, 546 F.2d 218, 222 (7th Cir. 1976) Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)

24 14, 15

Statutes 20 Ill. Admin. Code 107.210 730 ILCS 5/3-11-1 730 ILCS 5/5-8A-3(b) 730 ILCS 5/5-8A-3(c) 730 ILCS 5/5-8A-3(d) 730 ILCS 5/5-8A-3(e) 75 ILCS 5/3-11-1

7, 19, 26 20, 21, 25 7, 19, 26
7, 26 7, 19, 21, 25
7, 20, 26 6, 18, 19

Rules Federal Rule of Civil Procedure 23

Passim

Other Authorities

A. Conte & H. Newberg, Newberg on Class Actions § 25.20 (4th ed. 2002)

24

Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart,

https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/ (date analysis

based on WHO-China Joint Mission Report)

13

Elizabth M. Vigilanto et al., Mass Incarceration and Pulmonary Health: Guidance for

Clinicians, 15 Ann. Am. Thoracic Soc. 409, 409 (2019)

12

Gov. Pritzker, Executive Order 2020-13 (Mar. 26, 2020), available at

https://www2.illinois.gov/IISNews/21288-Gov._Pritzker_Stay_at_Home_Order.pdf (last

visited Apr. 1, 2020).

9

Ill. Dep’t of Corrs., Agency Overview,

https://www2.illinois.gov/idoc/aboutus/Pages/IDOCOverview.aspx (last visited Mar. 31,

2020)

11

Ill. Dep’t of Corrs., COVID-19 Response, (Mar. 31, 2020),

https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx (last visited Apr. 1,

2020 at 7:00 p.m.).

9

Ill. Dep’t of Pub. Health, “Public Officials Announce 461 New Cases of Coronavirus Disease,”

(Mar. 30, 2020), available at http://www.dph.illinois.gov/news/public-health-officials-

announce-461-new-cases-coronavirus-disease (last visited Apr. 1, 2020)

5

Laura M. Marushack et al., Medical Problems of State and Federal Prisoners and Jail Inmates,

2011-12, U.S. Dept. of Justice (2014)

12

Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World

Health Organization (Feb. 28, 2020), at 12, available at https://www.who.int/docs/default-

source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf (last visited Apr. 1,

2020)

12

William B. Rubenstein, et al., Newberg on Class Actions, § 3:12 (5th ed. 2011)

11

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Case 8:20-cv-01028-PX Document 4-1 Filed 04/21/20 Page 5 of 19
Plaintiffs, on behalf of themselves and the classes they seek to represent, hereby respectfully request that this Court grant their motion for class certification, appoint them as named plaintiffs in this litigation, and appoint their undersigned attorneys as class counsel.
INTRODUCTION The spread of COVID-19 has created an unprecedented health crisis. Public health officials throughout the country have implored the general public to take protective measures to curb its the virus’s spread. But the people in Defendant McDonough’s custody cannot protect themselves; only Defendant McDonough can ensure that they have the basic means to protect themselves, including hygiene products, cleaning materials, and a means to distance themselves from people who may be infected. The Prince George’s County Jail (the “Jail”)1 has not taken reasonable measures to protect the people in its custody from infection. There is already an outbreak of COVID-19 at the Jail. Moreover, the Jail’s inadequate care for those with symptoms or confirmed cases increases the likelihood that those infected will suffer serious illness, permanent physical damage, and death. Every single person in Defendant McDonough’s custody faces a risk of death or serious harm as a result.
CLASS DEFINITION This federal class action seeks to require Defendant McDonough to implement procedures that keep Plaintiffs reasonably safe from contracting communicable disease while in custody and provide reasonable medical care for those who do contract the virus. However, due to age or preexisting medical conditions, some people are so vulnerable to COVID-19 that no adequate policies
1 Since Defendant McDonough is being sued in her official capacity, “Defendant McDonough” and “the Jail” are used interchangeably in this motion.
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Case 8:20-cv-01028-PX Document 4-1 Filed 04/21/20 Page 6 of 19
and procedures could be implemented quickly enough to protect them. These people, as a subclass, seek a writ of habeas corpus under 28 U.S.C. § 2241.
Plaintiffs, therefore, seek to certify two classes with one subclass as follows: x The Pretrial Class is defined as “all people detained in the Prince George’s County Jail
who are not detained pursuant to a judgment of conviction.” x The Post-Conviction Class is defined as “all people detained in the Prince George’s
County Jail who are detained pursuant to a judgment of conviction.” x The Medically Vulnerable Subclass is defined as “all Pretrial Class members whose
medical condition renders them especially vulnerable to COVID-19 as determined by guidelines promulgated by the Centers for Disease Control and Prevention.”2 Named Plaintiffs Keith Seth, David Smith, Mario Burch, John Doe. No. 1, John Doe. No. 3, John Doe No. 4, and John Doe No. 5 represent the Pretrial Class. Compl.¶¶ 14–17, 19–21. Named Plaintiff John Doe No. 2 represents the Post-Conviction Class. Compl.¶ 18. And Named Plaintiffs Seth, Smith, John Doe No. 1, John Doe No. 3, and John Doe No. 5 represent the Medically Vulnerable Subclass. Compl.¶¶ 14–15, 17, 19, and 21.
BACKGROUND AND SUMMARY OF ARGUMENT Plaintiffs’ suit for injunctive relief under the Eighth and Fourteenth Amendments, and the Medically Vulnerable Subclass’s petition for habeas corpus, arise from Defendant McDonough’s failure to protect them from the severe risk of death or serious physical harm. Those risks affect
2 See U.S. Centers for Disease Control and Prevention, People Who Are At Higher Risk (last reviewed Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html.
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Case 8:20-cv-01028-PX Document 4-1 Filed 04/21/20 Page 7 of 19
each Class and Subclass member identically. This Court should therefore certify the Classes and
Subclass.3
The claims of the Classes and Subclass are suited to proceed as a class action under Federal
Rule of Civil Procedure 23(b)(2). 4 In the Fourth Circuit, the procedure and analysis for certifying
class action habeas petitions is the same as any other class action. See Diaz v. Hott, 297 F. Supp.
3d 618, 628 (E.D. Va. 2018) (certifying class action habeas), aff’d sub nom. Guzman Chavez v.
Hott, 940 F.3d 867 (4th Cir. 2019).5 Thus, to certify a class, each of the requirements of Rule 23
must be met. Plaintiffs here satisfy Rule 23 because: (a) every member of the Classes and Subclass
3 In addition to maintaining dangerous conditions, the Jail is detaining COVID-positive prisoners when it has no legal authority to do so because they are COVID-positive. Since everyone in the Jail is both at great risk for infection with COVID-19 and actively seeking to be legally entitled to release (whether by paying bail, through acquittal, requesting early release, or by some other means), all are also in danger of being unlawfully detained. Accordingly, the Pretrial and Postconviction Classes will also challenge this practice under the Fourteenth Amendment. 4Although the Supreme Court has not squarely decided whether Rule 23 of the Federal Rules of Civil Procedure “is applicable to petitions for habeas corpus relief,” on several occasions the Court has decided class action habeas petitions. Schall v. Martin, 467 U.S. 253, 261 n.10 (1984) (declining to address the issue and accepting district court’s certification of the class; reversing lower courts’ holding that preventive detention of juveniles was unconstitutional); Middendorf v. Henry, 425 U.S. 25, 30 (1976) (declining to decide whether class action habeas petitions are cognizable; refusing to grant relief). 5 Some other circuits have adopted “a representative analogous to the class action provided for in Rule 23.” Bijeol v. Benson, 513 F.2d 965, 968 (7th Cir. 1975) (holding that such a procedure “may be appropriate in a habeas corpus action under some circumstances.”). The Fourth Circuit, in keeping with the practices of the Second, Eighth, and Ninth Circuit, simply applies the procedure of Rule 23. See also Rodriguez v. Hayes, 591 F.3d 1105, 1117 (9th Cir. 2010) (“the Ninth Circuit has recognized that class actions may be brought pursuant to habeas corpus.”) (citing Cox v. McCarthy, 829 F.2d 800, 804 (9th Cir.1987)); Williams v. Richardson, 481 F.2d 358, 361 (8th Cir. 1973) (“under certain circumstances a class action provides an appropriate procedure to resolve the claims of a group of petitioners and avoid unnecessary duplication of judicial efforts in considering multiple petitions, holding multiple hearings, and writing multiple opinions.”); Inmates of Attica Corr. Facility v. Rockefeller, 453 F.2d 12, 24 (2d Cir. 1971) (finding a class action habeas “properly maintainable” when the Rule 23 factors are met); Adderly v. Wainwright, 58 F.R.D. 389 (M.D. Fla. 1972) (holding that a petition for a writ of habeas corpus can be brought as a class action).
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have the same legal theory as to why their federal rights are being violated; (b) the Jail’s failure to take reasonable measures to protect them violates the rights of every Class member; (c) every Class member will use similar or overlapping evidence in support of his or her cause of action; and (d) every member of the Class seeks a uniform injunction or writ of habeas corpus requiring Defendant McDonough to take immediate action to protect them from a grave risk of death or harm. In other words, each representative shares all legal claims with the Class or Subclass he seeks to represent, each Class or Subclass’s evidence will be identical in support of those claims, and the Class representatives seek the same relief as the Class or Subclass they seek to represent.
In addition to commonality, the Classes and Subclass satisfy the other requirements of Rule 23(a), as well as the requirements of Rule 23(b)(2). Joinder is impracticable because the number of people in the Jail’s custody exceeds hundreds of people on any given day, and the Subclass also likely contains hundreds of people. The claims of the named Plaintiffs are typical of those of the class as a whole. That typicality stems from their claim that the Jail has placed them at significant risk of harm by failing to take appropriate steps to address the risk of COVID-19. Named Plaintiffs have no conflicts with the unnamed members of the proposed classes. Their lawyers are experienced in federal-court civil-rights class actions, particularly those involving prisons and jails. Thus, named Plaintiffs and their counsel will adequately represent the interests of the proposed Classes and Subclass. Finally, Defendant McDonough has refused to act in a manner that applies generally to the class as a whole, rendering class-wide injunctive relief appropriate under Federal Rule of Civil Procedure 23(b)(2), and a class-wide writ of habeas corpus appropriate under Diaz.
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ARGUMENT For a district court to certify a class action, the proposed class must satisfy the numerosity, commonality, typicality, and adequacy requirements of Rule 23(a) and at least one requirement of Rule 23(b). Berry v. Schulman, 807 F.3d 600, 608 (4th Cir. 2015). Because the proposed Classes and Subclass meet all four Rule 23(a) requirements and the requirements of Rule 23(b)(2), this Court should certify Plaintiffs’ proposed Classes. Rule 23(c)(5) further allows for a class to be divided into subclasses, where the subclasses are treated as a class under Rule 23. As demonstrated below, each subclass additionally meets all requirements of Rule 23(a) and Rule 23(b) and this Court should similarly certify Plaintiffs’ proposed subclass. Class certification is particularly favored when, as here, the named plaintiffs assert civil rights claims that are transitory in nature, such that mootness concerns would make it difficult or impossible for individuals to litigate the issues outside of the class context. See Gratz v. Bollinger, 539 U.S. 244, 268 (2003) (noting that class-action treatment was “particularly important” in a case where the claims of the individual plaintiffs ran “the risk of becoming moot” because the “[t]he class action vehicle . . . provides a mechanism for ensuring that a justiciable claim is before the Court”) (quotation marks and citation omitted)). Indeed, class-action treatment is favorable here given the relatively brief nature of incarceration in county jail. See, e.g., Hiatt v. Cty. of Adams, 155 F.R.D. 605, 608–09 (S.D. Ohio 1994) (explaining that given the “short term nature of incarceration in a county jail,” a class should be certified when it is the “only vehicle whereby the legality of [a jail’s] operation can be reviewed”).
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Case 8:20-cv-01028-PX Document 4-1 Filed 04/21/20 Page 10 of 19

I.

Plaintiffs Satisfy Rule 23(a): They Are Numerous and Raise Common Questions,

and the Named Plaintiffs Are Adequate Representatives with Typical Claims

A. Numerosity is Satisfied: The Class and Subclasses Each Include Hundreds of Members.

First, the proposed Classes and Subclass are sufficiently numerous to make joinder

impracticable. Fed. R. Civ. P. 23(a)(1). In determining whether the numerosity requirement is met,

“[n]o specified number is needed to maintain a class action.” Brady v. Thurston Motor Lines, 726

F.2d 136, 145 (4th Cir. 1984) (citation and quotation omitted). In fact, even eighteen people can

be sufficient. See Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass’n., 375 F.2d 648, 653

(4th Cir. 1967); see also Rodger v. Elec. Data Sys. Corp., 160 F.R.D. 532, 535 (E.D.N.C. 1995)

(“[A] class of as few as twenty-five to thirty members raises a presumption that joinder would be

impracticable.”).

Numerosity is easily satisfied here. Defendant McDonough is currently holding

approximately 600 people in his custody. The majority are presumptively innocent and held

pretrial. Roughly 100 or so are held post-conviction. The threat posed by COVID-19 is such that

every person in the Jail’s custody faces the risk of significant harm. Everyone is at risk of infection.

And everyone who is infected is at risk of inadequate medical care that intensifies the risk of

serious illness, long-term permanent physical damage, and death. COVID-19 is therefore

potentially lethal for any person in the jail.

The proposed Subclass also meets the numerosity threshold. The Medically Vulnerable

Subclass is comprised of people who are particularly vulnerable to COVID-19 because of

underlying medical conditions or age. People of any age who suffer from certain underlying

medical conditions, including lung disease, heart disease, chronic liver or kidney disease

(including hepatitis and dialysis patients), diabetes, compromised immune systems (such as from

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Case 8:20-cv-01028-PX Document 4-1 Filed 04/21/20 Page 11 of 19
cancer, HIV, or autoimmune disease), severe obesity, and asthma, are at elevated risk higher risk for developing more serious complications from COVID-19 illness. So too people over the age of 65. The WHO-China Joint Mission Report indicates that the mortality rate from COVID-19 for those with cardiovascular disease was 13.2%, 9.2% for people with diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.6
A sizeable percentage of the jail population is likely medically vulnerable to COVID-19. According to one study, “asthma prevalence is 30%–60% higher among individuals with a history of incarceration as compared with the general population.”7 Another study estimates that up to 15% of people who are in custody have asthma, 10% of people in custody live with a heart condition that requires medical care, 10% live with diabetes, and 30% have hypertension.8 Based on these estimates and assuming some overlap in these diagnoses, a fair estimate of the number of people who live with one or more of these medical vulnerabilities exceeds several hundred people.
The classes and subclass are too numerous for joinder to be considered practicable. B. Commonality is Satisfied: The Legality of Defendant’s Response to the
Pandemic Involves Numerous Common Questions of Fact and Law. Rule 23(a)(2) requires that “there [be] questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality requires that class members’ claims “depend on a common contention” of facts or law such that “determination of its truth or falsity will resolve an issue that
6 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, available at https://www.who.int/docs/defaultsource/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf (last visited Apr. 1, 2020). 7 Elizabeth M. Vigilanto et al., Mass Incarceration and Pulmonary Health: Guidance for Clinicians, 15 Ann. Am. Thoracic Soc. 409, 409 (2019). 8 Laura M. Marushack et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, U.S. Dept. of Justice (2014).
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is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores Inc. v. Dukes, 564 U.S. 338, 350 (2011).
In other words, the commonality requirement of Rule 23(a)(2) “does not require that all, or even most issues be common, nor that common issues predominate, but only that common issues exist.” Cent. Wesleyan Coll. v. W.R. Grace & Co., 143 F.R.D. 628, 636 (D.S.C. 1992), aff’d, 6 F.3d 177 (4th Cir. 1993); see also Wal-Mart, 564 U.S. at 369 (“[E]ven a single [common] question will do.” (citation omitted)). For this reason, factual differences among the claims of putative class members do not defeat certification. Indeed, “Rule 23 does not require precise, mirror-image identity respecting the injuries caused by a single practice or policy.” Int’l Woodworkers of Am. AFL-CIO, CLC v. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1270 (4th Cir. 1981).
Rather, commonality requires Plaintiffs to demonstrate that there is “some glue” holding the claims together; that a common question or questions “generate common answers apt to drive the resolution of the litigation.” Wal-Mart, 564 U.S. at 351, 349–50 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 132 (2009)) (emphasis in original). These “common answer[s]” must “relate[] to the actual theory of liability in the case.” Rikos v. Procter & Gamble Co., 799 F.3d 497, 505 (6th Cir. 2015). Civil rights cases often easily demonstrate commonality because the defendant’s actions are “central to the claims of all class members[,] irrespective of their individual circumstances and the disparate effects of the conduct.” Baby Neal ex. rel. Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994) (citing 7A Charles A. Wright, et al., Fed. Prac. & Proc. § 1763 at 219 (1986)).
Accordingly, courts in the Fourth Circuit have certified class actions in such cases as where a class of people in pretrial detention sought to challenge the state’s practice of transferring pretrial detainees from local jails to state institutions, see Epps v. Levine, 457 F. Supp. 561, 563 (D. Md.
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1978), and where a class of people unable to afford the traffic offense-related fines and court costs sought to challenge the state’s practice of revoking their driver’s licenses as a consequence of their inability to pay, see Johnson v. Jessup, 381 F. Supp. 3d 619, 637 (M.D.N.C. 2019). And many district courts have found that systemic constitutional challenges to prison and jail conditions provide the “glue” necessary to hold a class together.9
As the Supreme Court explained in Wal-Mart, “for purposes of Rule 23(a)(2) [e]ven a single [common] question will do . . .” 564 U.S. at 359 (citation and internal quotations omitted; alterations in original). Here, Plaintiffs allege that all members of the proposed Class are at significant risk of contracting a fatal illness due to the Jail’s systemic failure to implement policies and practices necessary to protect them. The core questions of law and fact common to the classes and subclass include the following:
(1) Do the Jail’s conditions create a substantial risk that the people in its custody will be infected with COVID-19?
(2) Do the Jail’s conditions create a substantial risk that the people in its custody who are infected with COVID-19 will face serious illness, long-term physical damage, or death?
9 E.g., Olson v. Brown, 284 F.R.D. 398, 410–11 (N.D. Ind. 2012) (jail policies and conditions); Ross v. Gossett, 2020 WL 1472072, at *3–4 (S.D. Ill. Mar. 26, 2020) (unconstitutional practices regarding shakedowns); Rosas v. Baca, 2012 WL 2061694, at *3 (C.D. Cal. June 7, 2012) (jail violence case); Jones v. Guzman, 296 F.R.D. 416, 465–66 (E.D. La. 2013) (jail violence case); Hughes v. Judd, 2013 WL 1821077, at *23 (M.D. Fla. Mar. 27, 2013) (unconstitutional conditions for juvenile detainees); M.D. v. Perry, 294 F.R.D. 7, 24–25 (S.D. Tex. 2013) (foster children facing abuse); Parsons v. Ryan, 289 F.R.D. 513, 515–16 (D. Ariz. 2013) (inadequate medical and mental health care in state prisons); Butler v. Suffolk Cnty., 289 F.R.D. 80, 96 (E.D.N.Y. 2013) (jail sanitation case); Abadia-Peixoto v. United States Dep’t of Homeland Sec., 277 F.R.D. 572, 576 (N.D. Cal. 2011) (shackling of detainees during judicial proceedings).
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(3) Is Defendant McDonough acting with deliberate indifference to these risks? (4) Is the risk of harm posed by the Jail’s conditions so severe and so immediate that the
only adequate remedy is release? Resolving these questions will yield exactly the kind of “common answers” to Plaintiffs’ Eighth and Fourteenth Amendment claims that the Supreme Court requires.10 See Wal-Mart, 564 U.S. at 351.
An injunctive challenge to a systemic failure to protect class members from significant harm is a textbook example of a case that satisfies the commonality requirement and warrants class certification. Indeed, “this is precisely the type of case for which class certification pursuant to Rule 23(b)(2) was intended.” Scott v. Clarke, 61 F. Supp. 3d 569, 591 (W.D. Va. 2014); see Thorn v. Jefferson–Pilot Life Ins. Co., 445 F.3d 311, 330 (4th Cir. 2006). Plaintiffs here challenge Defendant’s systemic failure to respond reasonably to the deadly threat of COVID-19. The commonality requirement is therefore easily met. See Scott, 61 F. Supp. at 590 (W.D. Va. 2014) (certifying a 23(b)(2) class where “Plaintiffs’ amended pleadings allege that the Defendants have provided deficient medical care, or failed to provide medical care under circumstances in which it is plainly warranted and needed, on a systemic basis that jeopardizes the continuing health and well-being of Plaintiffs and all other prisoners residing or who will reside at [the prison].”)
10 To answer these core questions, the Court will need to consider specific fact questions common to the classes, including: what measures Defendant McDonough is taking in response to COVID19; whether conditions at the Jail comply with CDC guidelines; whether Defendant McDonough knew of and disregarded the risk of COVID-19. And ultimately, the Court will determine the legal question of whether Defendant McDonough’s conduct rises to the requisite level of deliberate indifference for a constitutional violation. The answers to these questions will be common to all members of the putative classes at issue.
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C. Typicality is Satisfied: The Named Plaintiffs’ Claims Are Representative of Those of the Class at Large.
Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The threshold requirements of . . . typicality are not high,” Brown v. Nucor Corp., 576 F.3d 149, 153 (4th Cir. 2009) (quotation omitted)). Class representatives must “be part of the class and possess the same interest and suffer the same injury as the class members.” Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001) (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 156 (1982)).
Under the typicality requirement, the Court does not require “members of the class [to] have identical factual and legal claims in all respects.” Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 344 (4th Cir. 1998). In this respect, “factual differences will not render a claim atypical,” so long as the class representative’s claim “arises from the same event or practice or course of conduct that gives rise to the claims of the class members” and is “based on the same legal theory,” Casey, 43 F.3d at 58. In other words, “[t]he essence of the typicality requirement is captured by the notion that ‘as goes the claim of the named plaintiff, so go the claims of the class.’” Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006) (quotation omitted).
In this case, the claims of the Plaintiffs are typical of the Classes and Subclass that they represent. Every member of the class faces a substantial risk of contracting COVID-19 if immediate measures are not implemented. Some people, like the medically vulnerable plaintiffs, are at imminent risk of death or severe harm if they are not transferred to a safer environment. The overarching nature of the threat of COVID-19 to every person confined in Defendant McDonough’s custody is sufficient to satisfy typicality for the two Classes. For the Medically Vulnerable Subclass, each person claims that he must be released because his health is at imminent and immediate risk from the same virus and same policy failures as each other person in the
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subclass. The claims of the Class Representatives are therefore typical of the claims of those they seek to represent.
D. The Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Classes and Subclass.
Finally, the Named Plaintiffs also meet the final requirement under Rule 23(a): they “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequate representation requirement is met where: “1) plaintiff’s interests are [not] antagonistic to the interest of other members of the class and 2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.” Longo v. Trojan Horse Ltd., 208 F. Supp.3d 700, 711 (E.D.N.C. 2016) (quoting Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000)); see also Olvera-Morales v. Int’l Labor Mgmt. Corp. Inc, 246 F.R.D. 250, 258 (M.D.N.C. 2007) (“To establish adequacy, ‘the representative must have common interests with unnamed members of the class’ and ‘it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.’”) (quoting In re Am. Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996)).
In this case, the Named Plaintiffs do not have interests that conflict with those of the rest of the class. To the contrary, as laid out above in the commonality and typicality discussions, the Named Plaintiffs here pursue claims common to the class as a whole in an effort to advance a common interest in ensuring they receive adequate protection from COVID-19. The injunctive relief they seek would benefit the entire class equally. The Named Plaintiffs and their fellow class members thus share a common interest and are not conflict with each other.
The Named Plaintiffs also meet the requirement that they will “vigorously prosecute the interests of the class through qualified counsel.” Olvera-Morales, 246 F.R.D at 258. They are
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represented here by highly qualified and experienced civil rights attorneys who are able and willing

to conduct this litigation on behalf of the class. Plaintiffs’ counsel from Civil Rights Corps have

extensive experience litigating complex class action cases and civil rights cases, including cases

concerning unconstitutional pretrial systems. Exhibit 1, Declaration of Counsel. As discussed in

further detail below, infra Part III, Plaintiffs’ counsel are qualified and experienced counsel with

a history of zealous advocacy on behalf of their clients. Rule 23(a)(4)’s adequacy requirement is

met.

II.

Certification of the Classes and Subclass for Prospective Relief is Appropriate

Under Fed. R. Civ. P. 23(b)(2)

In addition to satisfying Rule 23(a), the proposed class in this case satisfies Rule 23(b)(2).

A court may certify a class under Rule 23(b)(2) if “the party opposing the class has acted or refused

to act on grounds that apply generally to the class, so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2); see also

Zimmerman v. Bell, 800 F.2d 386, 389–90 (4th Cir. 1986) (“[S]ubsection (b)(2) [is] limited to

claims where the relief sought [is] primarily injunctive or declaratory.”); Bumgarner v. NCDOC,

276 F.R.D. 452, 457–58 (E.D.N.C. 2011) (“The essential consideration is whether the complaint

alleges that the plaintiffs have been injured by defendants’ conduct which is based on policies and

practices applicable to the entire class.”) (citation omitted).

Courts have repeatedly held that civil-rights class actions are the paradigmatic 23(b)(2)

suits, “for they seek classwide structural relief that would clearly redound equally to the benefit of

each class member.” Marcera v. Chinlund, 595 F.2d 1231, 1240 (2d Cir. 1979), vacated on other

grounds, 442 U.S. 915 (1979). As stated in the leading treatise on class actions:

Rule 23(b)(2) was drafted specifically to facilitate relief in civil rights suits. Most class actions in the constitutional and civil rights areas seek primarily declaratory

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and injunctive relief on behalf of the class and therefore readily satisfy Rule 23(b)(2) class action criteria. A. Conte & H. Newberg, Newberg on Class Actions § 25.20 (4th ed. 2002). Injunctive challenges to prison and jail conditions routinely proceed as class actions. See, e.g., Brown v. Plata, 563 U.S. 493, 506 (2011); Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 374 (1992); Jones ‘El v. Berge, 374 F.3d 541 (7th Cir. 2004); Jones v. Diamond, 519 F.2d 1090, 1097 (5th Cir. 1975) (“Realistically, class actions are the only practicable judicial mechanism for the cleansing reformation and purification of these penal institutions.”); Casey, 43 F.3d at 58 (noting that subsection (b)(2) “is almost automatically satisfied in actions primarily seeking injunctive relief”); Scott v. Clarke, 61 F. Supp. at 591; Bradley v. Harrelson, 151 F.R.D. 422, 427 (M.D. Ala. 1993) (stating that subsection (b)(2) “is particularly applicable to suits such as the one sub judice which involve conditions of confinement in a correctional institution”). Here, high-level officials failing to take reasonable measures to abate the deadly threat posed by COVID-19 places all class members at risk of serious illness or death. Rule 23(b)(2) is satisfied.

III.

Undersigned Counsel Should Be Appointed Class Counsel Under Rule 23(g).

Federal Rule of Civil Procedure 23(g) requires that the court appoint class counsel for any

class that is certified. Fed. R. Civ. P. 23(g)(1). Class counsel must “fairly and adequately represent

the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B). In determining whether this requirement is

met, courts must consider: (1) “the work counsel has done in identifying or investigating potential

claims in the actions;” (2) “counsel’s experience in handling class actions, other complex litigation

, and the types of claims asserted in the action;” (3) “counsel’s knowledge of the applicable law;”

and (4) “the resources that counsel will commit to representing the class.” Fed. R. Civ. P.

23(g)(1)(A).

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Undersigned Counsel satisfy these four requirements. The Plaintiffs and proposed Classes
are represented by attorneys from Civil Rights Corps, who have experience litigating complex civil
rights matters and class action lawsuits in federal court and extensive knowledge of both the
conditions in the jail and the relevant constitutional law. Class counsel have conducted an
extensive investigation into the conditions in the Jail and the sanitation and social distancing
requirements that are necessary to prevent or mitigate an outbreak of COVID-19. In addition, Class
counsel has sufficient financial and human resources to litigate this matter. In sum, Plaintiffs’
attorneys are experienced advocates; possess “sufficient vigor” along with sufficient resources, to
adequately represent the Classes and prosecute this action; and are appropriate counsel for the
matter. See Kirkpatrick J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987) (citations
omitted).
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court certify the Classes
and Subclass as defined in this Motion and appoint the undersigned as class counsel.
Respectfully submitted on April 21, 2020,
By /s/Elizabeth Rossi Elizabeth Rossi Bar No. 19616 Katherine Chamblee-Ryan application to the Bar of this Court pending Olevia Boykin application forthcoming Ryan Downer application pending CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Suite 800 Washington, D.C. 20009 katie@civilrightscorps.org 610-931-7715 Attorneys for Plaintiffs
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Case 8:20-cv-01028-PX Document 4-2 Filed 04/21/20 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

KEITH SETH, et al., Individually and on behalf of a class of similarly situated persons,
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections,
Defendant-Respondent.

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DECLARATION OF PLAINTIFFS’ COUNSEL 1. Counsel for Plaintiffs-Petitioners and the putative Class members in this case, Elizabeth Rossi, Katherine Chamblee Ryan, Olevia Boykin, and Ryan Downer, on behalf of Civil Rights Corps, submit this Declaration in support of the motion for class action treatment. 2. Elizabeth Rossi is a senior attorney at Civil Rights Corps, a nonprofit civil rights law office in Washington, D.C. She has worked there since its founding in 2017. Prior to her time at Civil Rights Corps, she worked at Equal Justice Under Law and in the appellate division in the Maryland Office of the Public Defender. She clerked for Judge Paul Barbadoro on the United States District Court for New Hampshire, and for Judge Martha Craig Daughtrey on the Sixth Circuit Court of Appeals.

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3. Elizabeth serves as counsel in a number of lawsuits in which a class has been certified, including Russell, et al. v. Harris County (S.D. Tex.), ODonnell v. Harris County (S.D. Tex.), McNeil v. Community Probation Services, Inc. (M.D. Tenn.). and Daves v. Dallas County (N.D. Tex.). She also served as counsel on Rodriguez v. Providence Community Corrections, Inc., (M.D. Tenn. 2015), in which final classwide settlement was approved on July 15, 2018.
4. Katherine Chamblee Ryan is a senior attorney and the coordinator of the Prosecutor’s Project at Civil Rights Corps. Before coming to Civil Rights Corps in spring 2018, she spent four years as an attorney in the capital unit at Southern Center for Human Rights in Atlanta, GA. She also clerked for Judge Myron Thompson of the U.S. District Court for the Middle District of Alabama.
5. Katherine is counsel for the plaintiffs in Briggs v. Montgomery, a complex civil rights lawsuit filed in the U.S. District Court for Arizona. This case is currently in classwide discovery, and plaintiffs will move for class certification in May. At Southern Center, Katherine represented clients who had been sentenced to the death penalty in post-conviction proceedings in state in federal court. In 2015, she served as co-counsel in Foster v. Chatman, 578 U.S. __ (2016), a case in which the U.S. Supreme Court reversed the conviction and death sentence of her client, Timothy Foster, because of the racial discrimination in his jury selection.
6. Olevia Boykin is an Arthur Liman fellow at Civil Rights Corps. She has worked at Civil Rights Corps since fall 2018. She earned her J.D. from Yale Law School in 2017. Olevia clerked for Judge Myron Thompson for the U.S. District Court for the Middle District of Alabama.
7. Olevia is counsel in Briggs v. Montgomery.

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8. Ryan Downer is the director of litigation at Civil Rights Corps. Before this, he was counsel at Relman, Dane & Colfax, a civil rights firm in Washington, D.C. Prior to that, he served as assistant counsel at the NAACP Legal Defense Fund in New York City. He also previously served as a law clerk to Judge Martha Craig Daughtrey on the United States Court of Appeals for the Sixth Circuit.
9. As litigation director, Ryan supervises and serves as counsel in a number of Civil Rights Corps’ ongoing class action lawsuits. See e.g., Graff v. Aberdeen Enterprizes II, Inc., (N.D. Okla. 2017); Fant et al. v. City of Ferguson, (E.D. Mo. 2015). He also litigated complex civil rights cases, including class actions, in his roles at Relman, Dane & Colfax and the Legal Defense Fund. Two of these class actions Thompson v. HUD and Lewis v. Chicago—resulted in groundbreaking precedent and multimillion dollar settlements for the plaintiffs.
10. Civil Rights Corps has investigated and served as lead counsel in many constitutional civil rights class action lawsuits challenging various aspects of the criminal legal system, with an emphasis on challenging money bail and user-funded schemes. A small sampling of these cases includes: ODonnell v. Harris County, 2017 WL 1542457, at *7-8 (S.D. Tex. Apr. 28, 2017); Daves v. Dallas County, No. 3:18-CV-0154-N, 2018 U.S. Dist. LEXIS 160742 (N.D. Tex. Sep. 20, 2018); Dixon v. City of St. Louis, No. 4:19-cv0112-AGF, 2019 U.S. Dist. LEXIS 97327 (E.D. Mo. June 11, 2019); Schultz v. State, 330 F. Supp. 3d 1344 (N.D. Ala. 2018); Edwards v. Cofield, 265 F. Supp. 3d 1344 (M.D. Ala. 2017); Caliste v. Cantrell, No. 17-6197, 2018 U.S. Dist. LEXIS 43338 (E.D. La. Mar. 16, 2018); Jones on behalf of Varden v. City of Clanton, 2015 WL 5387219 (M.D. Ala. 2015); Pierce et al. v. City of Velda City, 2015 WL 10013006 (E.D. Mo. 2015); Walker v. City of

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Calhoun, 2016 WL 361612 (N.D. Ga. Jan. 28, 2016); Rodriguez v. Providence Community Corrections, Inc., 2015 WL 9239821 (M.D. Tenn. 2015); Cooper v. City of Dothan, 2015 WL 10013003 (M.D. Ala. 2015); Snow v. Lambert, 2015 WL 5071981 (M.D. La. 2015); Thompson v. City of Moss Point, 2015 WL 10322003 (S.D. Miss. 2015).
11. Further, Civil Rights Corps is currently engaged in several cases materially identical to this one, which concern the outbreak of COVID-19 in local jails. See e.g. Swain v. Junior, No. 1:20-CV-21457 (S.D. Fla. 2020); Mays v. Dart, No. 1:20-CV-2134 (N.D. Ill. 2020); Sanchez v. Brown, No. 3:20-CV-832 (N.D. Tex. 2020). Its advocacy in three of these cases has already resulted in the issuance of temporary restraining orders requiring Cook County, Illinois; Oakdale, Michigan; and Miami-Dade County, Florida to, inter alia, comply with the guidelines issued by the Centers for Diseases Control.
12. Civil Rights Corps has conducted an investigation into the current COVID-19 containment strategies and conditions of confinement at the Prince George’s County Jail. This investigation has included interviews with witnesses, including people detained in the jail, local attorneys, community members, physicians, and experts in disease control and the effects of solitary confinement. Plaintiffs’ counsel has become familiar with the Centers for Disease Control’s COVID-19 guidelines for correctional settings. Plaintiffs’ counsel has therefore dedicated significant time and resources to becoming familiar with the health crisis in Prince George’s County and with all of the relevant state and federal laws and procedures that can and should govern it.
13. Civil Rights Corps is prepared to contribute significant resources to litigating this case. Plaintiffs’ counsel have paid all costs associated with the investigation and litigation to date and will continue to do so.

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I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Date: April 21, 2020
/s/Elizabeth Rossi Elizabeth Rossi Bar No. 19616 Katherine Chamblee-Ryan application to the Bar of this Court pending Olevia Boykin application forthcoming Ryan C. Downer application pending CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Suite 800 Washington, D.C. 20009 katie@civilrightscorps.org 610-931-7715
Attorneys for Plaintiffs

 Case 8:20-cv-01028-PX Document 44 Filed 04/29/20 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH SETH, et al., Individually and on behalf of a class of similarly situated persons,
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections.
Defendant-Respondent.

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Case No. 8:20-cv-01028-PHX

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REPLY IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Defendant’s response to Plaintiffs’ Emergency Motion misstates the pertinent law and offers
evidence that alternately confirms key facts alleged by Plaintiffs,1 avoids those facts, or depicts
supposedly effective policies without demonstrating that those policies are actually followed on
the ground.2 By contrast, Plaintiffs’ evidence demonstrates the lived experiences of those subject

1 Compare, e.g. Doc. 37-1 at 28, 29, 30, 31 (pictures of the cohorted isolation unit with trash on the floor), with Compl. ¶ 175 (“For fear of contracting COVID-19, jail guards will not remove the trash bags [from the cohorted isolation cell.]”); Doc. 29 at 12 (stating that “[t]ypically,” prisoners share a 70-square-foot cell with a cellmate), with Compl. ¶ 94 (“The vast majority of prisoners are sharing their roughly 60 square foot cells with a cellmate.”). Citations to the Complaint in this reply refer both to the allegations and to any of Plaintiffs’ evidence cited in those paragraphs. 2 Compare, e.g., McDonough Decl. (Doc. 29-3) at 17 (“The Medical Unit always uses an outside cleaning company to clean and disinfect [the medical isolation] rooms between usage.”), with, e.g., Ex. 11, Decl. 11 ¶ 18 (“The isolation cells have mucus, feces, blood, old food, urine, spit, everything you can name on the walls. . . . Someone should come and take pictures of these cells, they’re disgusting.”), Ex. 10, Decl. 10 ¶ 11 (“The isolation cell they put me in has mucus and blood
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to the grim reality of Defendants actual practices. These practices violate Plaintiffs’ constitutional rights on a daily basis. Of particular note given the nature of the relief requested, Defendant appears to have taken virtually no steps specifically aimed at preventing COVID-19 exposure to medically vulnerable inmates. The Emergency Motion should be granted. I. The Evidence Presented Does Not Support Defendant’s Claim of an Adequate
Response Overall, Defendant makes many high-level assurances about the Jail’s efforts control the spread of COVID-19 and to treat the prisoners who are infected. Defendant’s evidence shows that these assurances do not match the Jail’s reality.3 A. Defendant’s Evidence Indicates an Uncontrolled Outbreak of COVID-19 at the Jail Defendants contend that the Jail has successfully managed COVID-19 within its walls. But Defendant’s evidence strongly indicates the opposite. The Jail gave its first COVID-19 test on March, 27, 2020.4 Asresahegn Decl. (Doc. 29-1) ¶ 33. By April 24, 2020, the Jail had given twenty tests. Id. Eighteen of them were positive. Id.5
dried all around the walls, 360 degrees. I wish you could come and take pictures of it. When I say mucus and blood on the walls, I mean it – thick yellow, some green, some yellow with red blood in it. I can also tell someone was bleeding in that isolation cell, because there is blood all along the floor under the bed.”); McDonough Decl. (Doc. 29-3) at 18 (“Indigent inmates are always treated without charge.”), with Ex. 1, Seth Decl. (Doc. 2-1 at 5) ¶ 11 (stating that he did not get medical care for symptoms of COVID-19 because he could not afford the $4 for sick call). 3 In addition to the examples discussed in this section, Plaintiffs would present a more fulsome analysis of Defendant’s evidence at an evidentiary hearing and in other future proceedings (including which claims Plaintiffs’ evidence contradicts, aspects of Defendant’s evidence that support Plaintiffs’ claims, and contradictions between Defendant’s statements and its evidence). 4 Prince George’s County Executive declared a state of emergency due to COVID-19 on March 16, 2020. Compl. ¶ 51. 5 The Jail also reports that it currently has twenty tests for COVID-19 available. Doc. 29-1 ¶ 33.
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This rate of positive test results—90 percent—is stunning. Ex. A, Rottnek Decl. ¶ 22. Given this “test positivity rate,” it is virtually certain that the Jail is dramatically under-testing and that the unknown cases far exceed confirmed ones. Id. ¶ 23.6
Defendant’s other evidence further confirms that the outbreak is widespread. Twenty-eight Jail staff members have tested positive for COVID-19. Doc. 29-3 at 19. These staff members worked in (for example) the Kitchen, the Medical Unit, Sanitation, Sick Call, “Supply Manager,” and Transport. See Doc. 37-23. There have been confirmed positive cases in thirteen of the Jail’s seventeen housing units. Id.
Tellingly, the people responsible for controlling the spread of the virus in the Jail and treatment those who are infected do not see these numbers as a problem. Indeed, they highlight them as a point of pride. For example, Dr. Asresahegn, the Jail’s Site Medical Director, boasts that, “[t]hanks to [the Jail’s] efforts . . . . as of April 24, 2020, only eighteen (18) prisoners at the Jail had tested
6 Inmates have described how difficult it is to get tested, even when they exhibit symptoms of the virus Ex. A, Rottnek Decl. ¶ 20 (citing inmate declarations). Defendant’s inability or unwillingness to broadly test the Jail population belies her assurances that her policies have controlled the outbreak. Defendant cannot possibly know the full extent of the outbreak based on the current state of testing. And given what we know about how quickly and quietly the virus spreads, there is every reason to suspect that Defendant’s hollow statements are simply not true. “Comprehensive testing”—which the Jail has not and likely cannot do— “is a critical component of containing the spread of the virus and to ascertaining the severity of the outbreak.” Id. ¶ 19.
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positive for COVID-19 (over a (4) week period).” Asresahegn Decl., Doc. 29-1 ¶ 5. Defendant McDonough, while reciting the numbers of infected prisoners and staff, states, “We have not seen a surge in cases or an exponential increase in numbers. I believe this is partly true because of the care and attention we have given to preparation and mitigation of the virus.” Doc. 29-3 at 18-19. (Of course, it is impossible to see exponential spread where—as here—the Jail tests only one or two prisoners each day. Doc. 29-1 ¶ 33.
B. Defendant’s Evidence Contradicts Its Claims. Although Defendant contends it has implemented strong policies to halt infection in the Jail, Defendant’s evidence contradicts these claims—or suggests that, whatever the policy may be on paper, it is not actually implemented in practice. Ineffective COVID-19 Screening. Notably, Defendant touts its policy of taking inmate temperatures. As an initial matter, this screening method is minimally effective and has been only selectively implemented. Typically, COVID-19 positive individuals are asymptomatic for up to fourteen days and some never show symptoms even while contagious. Ex. A, Rottnek Decl. ¶¶ 2628. A temperature screen for these individuals is meaningless. Moreover, the Jail only regularly conducted these checks in two housing units, presumably leaving the other housing units without regular screening. Doc. 29-1 at ¶ 10. And while Dr. Asresahegn states that “[t]he selection of temperature-check logs attached to my Declaration as Exhibit Q reflects the thoroughness of the temperature checks in the housing units,” Doc. 29-1 ¶ 29, the logs themselves disprove this. Prisoners are frequently marked as having temperatures as low as 90.6, 90.7, and 92.9 degrees, which indicate hypothermia. Id. at 38, 12, 13.7
7 See Hypothermia, Mayo Clinic (last visited Apr. 28, 2020), https://www.mayoclinic.org/diseases-conditions/hypothermia/symptoms-causes/syc-20352682 (“Hypothermia . . . occurs as your body temperature falls below 95 degrees.”). In addition, High
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Further still, the Jail’s Pandemic Response Plan states: “The thermometer MUST be cleaned with an alcohol prep pad between each use.” Doc. 37-16 at 74. But Dr. Asresahegn states that, since the nurses use an infrared thermometer, “cleaning the instrument between checks is not necessary.” Doc. 29-1 ¶ 29.
Ineffective Social Distancing Practices. Defendant McDonough contends that the Jail has enacted effective social distancing policies. See McDonough Decl. (Doc. 29-1) at 11 (“We have implemented social distancing strategies to increase the physical space between inmates in a variety of ways and changed them to reflect the changes in guidance from the CDC and the Governor and the County Executive.”). But one such policy that she cites as an example does not— even as written—achieve social distancing. Defendant McDonough explains: “We encourage inmates to maintain spacing of at least 6 feet apart and are only allowing usage to every other telephone to help ensure this spacing. There are 10 to 12 inmate phones in every large housing unit, but they are fastened to the walls 2 – 2 ½ feet apart.” Doc. 29-3 at 14–15. According to this description, even if prisoners used every other phone, they would still be less than 4 or 5 feet apart.
Just as significantly, the fact that—pursuant to Defendant’s preemptive lockdown policy, which public health experts do not recommend, Compl. ¶¶ 137-40—most inmates share a small, poorly ventilated cell means that effective social distancing is simply not possible, Ex. A, Rottnek Decl. ¶ 38. As Plaintiffs and others have stated in declarations, the combination of shared cells and the Jail’s inadequate screening and testing, ensures that otherwise healthy cellmates will be regularly exposed to sick ones. See, e.g., Ex. 23, Decl. 23 (Doc. 2-1 at 111) ¶¶ 4, 6 (“I first began
temperatures are sometimes marked with a question mark or crossed out, and then a new (lower) temperature is recorded beside it. See, e.g., id. at 7, 67. And while Defendant states that “[t]emperatures of every inmate are taken twice per day,” Doc. 29 at 3, a sign in Defendant’s evidence lists only nine of the Jail’s seventeen units for twice daily temperature checks. Doc. 368 at 2.
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to experience symptoms of covid-19 on Wednesday, March 28, 2020, when I started to not be able to smell or taste. At that time, I was detained in Housing Unit 9 (H9), with a cellmate.”).
Defendant’s other evidence further undermines its social distancing claims. Pictures of an April “social distancing farewell party” show Jail staff standing in close proximity at a party. Doc. 3722 at 53, 55. The pictures are attached to an April 9th email informing staff of eleven positive cases at the Jail. Doc. 37-22 at 50.8 That staff members charged with educating and enforcing social distancing appear to not take it seriously themselves underscores the ineffectiveness of Defendant’s practices. Ex. A, Rottnek Decl. ¶¶ 35-36.
Even with respect to prisoners’ access to counsel, the Defendant’s representations are belied by the evidence. Defendant McDonough boasts that prisoners’ calls to their attorneys are free and that Jail officials made “special arrangements” to ensure that prisoners could contact attorneys who were working from home during the pandemic. Doc. 29-3 at 12. But under the Jail’s preemptive lockdown policy, prisoners can only use the phones for one hour a day, and this hour might be any time between 7 am and 3 am. Doc. 37-3 at 24; Ex. K, Rettammel Decl. ¶ 5–6 (noting the difficulties of gaining access to clients).9 Defendant McDonough contends that prisoners can still meet with their attorneys in the Jail’s non-contact room. Doc. 29-3 at 12. But even this policy undermines the CDC’s social distancing guidelines. The contact rooms have a partition with holes in it, and in
8 The same email includes a photo of fifteen to twenty Jail staff working shoulder to shoulder in the Jail’s kitchen. Doc. 37-22 at 52. Many of them are not wearing masks. Id.; see (noting that a Jail employee who worked in the Kitchen tested positive for COVID-19). Another photo shows a tightly packed town hall that Director McDonough held for Jail staff about COVID-19. See 37-22 at 20. The town hall was held on March 12, 2020—the same day Prince George’s County closed its Courthouse. Compl. ¶ 54. 9 See Doc. 37-3 at 4 (Jail staff member stating in an email to a supervisor that “the detainees said that they were also unable to reach their attorney’s/public defenders [sic] in the unit, especially when coming out for rec-time after midnight.”).
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order to hear one another, the attorney and client must speak through the holes, inches away from
one another. Ex. K, Rettammel Decl. ¶ 4.
Ineffective Sick Call and COVID Education Practices. Defendant McDonough states, “We
have not charged inmates for visits relating to COVID-19.” Doc. 29 at 18. But Dr. Asresahegn
contradicts this broad claim, explaining that Jail only began offering free care for COVID-19 nine
days ago. Doc. 29-1 at 19 (“[O]n Monday, April 20, 2020, Director McDonough directed that
patients suspected of being positive with COVID-19 would not be charged a copay for any medical care related to COVID-19.”).10 Moreover, to the extent this new policy exists in practice, it only
applies to prisoners “suspected of being positive with COVID-19.” Id. Unless this includes
prisoners’ own suspicions that they are infected, this policy is of little use to prisoners whose symptoms of COVID-19 that are disregarded by Jail staff, as Plaintiffs contend is routine.11
Defendant McDonough contends that the Jail has current information about COVID-19 posted
throughout the Jail. She states: “We have updated the signage [about COVID-19 in the Jail]
continuously as new information about the virus has emerged, always using CDC or Health
Department signage in English, Spanish, and pictograms. (Copies attached).” Doc. 29-3 at 10. Defendant submitted only two posters that provide any details about COVID-19.12 One states, “For
10 Plaintiffs’ evidence also strongly contradicts Director McDonough’s claim. Indeed, Plaintiffs’ evidence suggests that many prisoners positive for COVID-19 have paid for sick call—often multiple times, because the medical staff repeatedly returned them to their housing units, and they had to pay for sick call again. See, e.g., Compl. ¶¶ 102-17. 11 Ex. G, Decl. 29 ¶ 21 (“I don’t know that it really matters whether they charge you for sick call or not, if you put in a request and no one comes to see you anyways.”); see also Compl. ¶¶ 10217, 124-26. 12 Aside from the two posters that include information about COVID-19, Defendants submitted two posters that describe social distancing practices (in English and Spanish), but no information about COVID-19. Doc. 37-15 at 1-4. There is also a Spanish-language version of one of the posters with COVID-19 information. Doc. 37-15 at 5. Plaintiffs’ evidence contradicts Defendant’s claim that information about COVID-19 is posted throughout the Jail. Compl. ¶ 81, 81 n. 53 (citing to Plaintiffs’ evidence); see also Ex. D, Second Seth Decl. ¶
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the general American public, who are unlikely to be exposed to the virus at this time, the immediate health risk from coronavirus is low.” Doc. 37-15 at 6. The other says, “Right now, the greatest risk for infection is for people in Wuhan or people who have traveled to Wuhan and less so, other parts of China.” Doc. 36-1G.13
Misleading Statements of Policies. Some of Defendant’s claims are patently misleading. For example, Defendant repeatedly contends that prisoners are given free soap. See, e.g., Doc. 29 at 15 (“As to [the] issue of hygiene, [the Jail] reinforced healthy hygiene practices by providing inmates soap free of charge and upon request during this pandemic”); McDonough Decl (Doc. 293) at 5 (“Soap was and is distributed FREE OF CHARGE to all detainees in accordance with the later published recommendation of the Centers for Disease Control (CDC).”). But—as Defendant’s evidence demonstrates—this is not exactly true. Instead, starting on March 18, the Jail directed that each prisoner would receive one “[s]mall (hotel grade) bar[] of soap” at intake. Doc. 37-3 at 14. Once committed to the Jail, each prisoner receives another bar of soap. Doc. 374 at 46. After, this, prisoners “are required to purchase14 hygiene items from the commissary.”
13 Dr. Asresahegn also purportedly cites to additional “informational posters” that were in the health care unit. Doc. 29-1 ¶ 12. The exhibit cited for this claim contains, among other things, pages from what appear to be a stapled information packet, Doc. 36-8 at 11-12; signs for Jail staff, see, e.g., id. at 2; two general posters about hand-washing (which do not specifically address COVID-19), id. at 3, 5; and a sign that says, “PLEASE MAKE SURE YOU SECURE THIS DOOR BEHIND YOURSELF,” Id. at 4. 14 Although the Jail’s policy is that “indigent” inmates can obtain hygiene products for free, Doc. 37-4 at 46, the Jail only considers a prisoner “indigent” if “his or her personal finance account balance does not exceed $1.99 at any given time during the thirty (30) day period immediately preceding the day when indigent commissary order forms are distributed to the individual’s housing unit.” Id. at 55. An indigent prisoner can receive “limited” hygiene products once every thirty days. Id.
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Id.15 This restricted access to even bar soap—which is not as effective as liquid—is a noted COVID-19 risk factor. Ex. A, Rottnek Decl., ¶ 32-33.
Failure to Enforce Policies That Address the Realities of the Jail. These examples reflect a broader trend, documented by Defendant’s evidence: Defendant’s claims—and even its written policies—do not reflect the reality of the Jail. This is unsurprising, since key officials appear deeply out of touch with that reality. Dr. Asresahegn—the Jail’s medical director—believes that “patient (pre-trial and post-trial detainees) at the Jail . . . do not face the same threat posed to the public by COVID-19.” Doc. 29-1 ¶ 5. (Defendant McDonough boasts that, “[t]o promote family unification and mental health,” the Jail is offering prisoners three free, ten-minute phone calls during the pandemic. Doc. 29-3 at 15. But again, prisoners can only use the phones for one hour a day, and that hour might be at 2 am. See Doc. 37-3 at 24; see also Ex. 7, John Doe No. 4 Decl. (Doc. 2-1 at 31) ¶ 5 (“You can’t really talk to your family at 1 o’clock in the morning, my kids are asleep.”). And one of Defendant’s three declarants—Corizon, LLC Chief Medical Officer James Powell—admits: “I do not possess detailed information regarding the day-to-day events at the Jail.” Doc. 29-2 ¶ 6; see also Ex. A, Rottnek Decl. ¶¶ 12, 46.
Even when confronted with concerning evidence about the Jail’s conditions, Defendant McDonough failed to address it—substituting polite favors for effective policy. For example, on April 7, 2020, the mother of one prisoner emailed Defendant McDonough, stating that “for one week going on week two,” her son had told Jail staff repeatedly that he feels sick, but “they are not giving him medication,” and that “the young man that is roomed with him is coughing for every breath.” See, e.g., Doc. 37-4 at 14. Defendant McDonough responded to her, and then
15 This is consistent with Plaintiffs’ allegations and evidence. See Compl. ¶ 85 (“The jail gives prisoners one or two bars of soap when they first arrive. If prisoners want soap after that, they can buy soap from the commissary.”).
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contacted an employee at the Jail to ask that “the nurse pay[] special attention” to the prisoner. Id. at 12. The employee responded that the prisoner “did not have any symptoms.” Id. at 11. Days later, the prisoner tested positive for COVID-19. Ex. P, Email from Phyllis Williams (Apr. 12, 2020 10:35 am). This exchange exemplifies many of the concerns that Plaintiffs raise about the Jail: symptomatic prisoners are not taken seriously and cannot get care, Compl. ¶¶ 102-03, 10518, 125-26, 149, and prisoners are sharing cells with other prisoners who are sick, Compl. ¶¶ 12930, 144-45. Although Defendant McDonough helped to address that particular prisoner’s problem, she ignored the systemic inadequacies that caused it.16
C. Defendant’s Evidence Fails to Address Issues Critical to Plaintiffs’ Claims. Defendant’s voluminous evidence is also notable for what it does not include. With respect to numerous issues that are key to Plaintiffs’ claims, Defendant’s evidence contains only warnings that the Jail should take action—but no evidence of any actual practice or plan. And since the Jail has submitted over 1200 pages of exhibits that appear to contain even the most minute of their policies and procedures, it is fair to infer that these plans do not exist. Defendant’s evidence includes an instruction from Corizon, LLC, the company that runs its medical care, to “ensure that there is a specific plan in place” for prisoners who are “age 60 and older, and especially those with underlying medical conditions” to “isolate them from potential
16 When the same prisoner was placed in a medical isolation cell, his mother wrote to Defendant McDonough again: “[H]e is not being kept hydrated he is forced to drink the water out of the sink, he only have one set of cloths, has been using the same face mask since april2,2020 [sic], can’t brush his teeth, have to beg for toilet paper, soap and Tylenol.” Ex. O, Email from Phyllis Williams (Apr. 12, 2020 10:35 am). This complaint aligns perfectly with Plaintiffs’ allegations about medical isolation. See Compl. ¶¶ 170 (stating that prisoners in medical isolation “have no access to basic personal hygiene products; they have no soap and no toothbrush. . . . They cannot change their clothes.”). But again, it does not appear that Defendant McDonough addressed why he might be subject to these conditions. Instead, she told his mother that she would have a nurse check on him. Ex. O, Email from Phyllis Williams (Apr. 12, 2020 10:35 am).
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exposures [to COVID-19] and protect them with preventative measures. They are the highest risk and would need testing guided by the health department directions.” Doc. 36-21 at 4. Defendant’s evidence includes no such plan. In addition, Plaintiffs specifically requested that Defendant “identify any and all policies, practices, and/or plans to protect medically vulnerable inmates from a COVID-19 infection and to provide them with adequate monitoring and care if they develop symptoms or test positive.” Ex. L, Email from Katherine Chamblee Ryan (Apr. 24, 2020 1:27 pm); Ex. M, Email from Katherine Chamblee Ryan (Apr. 24, 2020 5:54 pm) (further explaining that request). But none of Defendant’s evidence addresses this issue.
Another memo from Corizon, LLC advises close contacts of people with confirmed cases of COVID-19 are at high risk for infection. Doc. 36-23 at 6. But nothing in Defendant’s evidence describes a plan for contact tracing. It is not addressed in the Jail’s pandemic plan. Doc. 37-16. No evidence states that the Jail isolates even the cellmates of prisoners who test positive for COVID19. (Plaintiffs’ evidence indicates that it does not do this, see, e.g., Compl. ¶ 129).
Corizon, LLC advises that the COVID-19 pandemic and the changes it brings might adversely impact prisoners’ mental health. Doc. 36-27 at 3 (warning that prisoners may have “acute and prolonged reactions.”). And it warns that times of crisis bring a higher risk of suicide. Doc. 36-31 at 82. Moreover, on March 26, 2020, before the Jail implemented its preemptive lockdown policies (and the punitive conditions that came with it), officials at the Jail noted in an email to staff that, “[w]ith the existing elevated state of anxiety among inmates and staff, it would be more harmful to isolate inmates.” Doc. 37-22, at 39-40. But Defendant’s evidence includes no evidence about the current plan for mental health treatment for any prisoners at the Jail, including those with preexisting mental health conditions who are in solitary-like isolation for weeks at a time.
D. Defendant Offers Misleading Evidence and Representations About Issues that Plaintiffs Requested It Address.
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Defendant also provided inadequate evidence (or no evidence at all) in response to Plaintiffs’ requests for information on a limited set of topics. Ex. L, Email from Katherine Chamblee Ryan (Apr. 24, 2020 1:27 pm) (listing those requests). Because some of Defendant’s evidence and representations about those topics are misleading, Plaintiffs address two of those topics here.
First, although Defendant provided, at Plaintiffs’ request, a list of medically vulnerable prisoners, that list includes only twenty-three prisoners. Doc. 29-1 ¶ 31. This is highly implausible. Indeed, six of the eight Plaintiffs are medically vulnerable. Compl. ¶¶ 14, 15, 17, 18, 19, 21. Moreover, Dr. Asresahegn, who compiled this list, claims not to know what Plaintiffs mean by “medically vulnerable.” See Doc. 29-1 ¶ 31 (“Plaintiffs requested information regarding patients who are ‘medically vulnerable.’ It remains unclear to me how Plaintiffs define that term.”). But Plaintiffs provided a list of conditions fall within the CDC’s guidelines for high risk individuals. See Ex. N, List of Medical Conditions. In addition, Dr. Asresahegn appears to suggest that this list is incomplete. Doc. 29-1 ¶ 31 (“I identify below certain patients with chronic medical conditions.”). As Plaintiffs’ expert Dr. Rottnek attests, these and other deficiencies show that the Jail essentially has no plan in place to protect those most vulnerable to COVID-19. Ex. A, Rottnek Decl. ¶¶ 39-47.
Second, Plaintiffs requested a list of pre-trial prisoners who a court has authorized for release on pretrial supervision and post-conviction prisoners who a court has authorized to serve their sentences on home detention or in the Prince George’s County Community Release Center, but whom pretrial services (a division of the Department of Corrections) has not released from the Jail. Plaintiffs also requested a list of prisoners who remain in the Jail solely because they cannot afford to pay a monetary bond.
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Defendant did not provide this information. However, Defendant did contend (without evidence) that “[o]nly those with serious charges of crimes against persons remain incarcerated.” Doc. 29 at 4. This is highly misleading. Indeed, several Plaintiffs are detained at the Jail even though a court has approved them for release, either to home detention or on monetary bond. Compl. ¶¶ 17, 19, 20, 21 Some prisoners at the Jail are detained for offenses that carry a statutory maximum of ninety days. See Compl. ¶ 19.
E. Plaintiffs’ Evidence is Current, Credible and Reflects Worsening Conditions Defendant seeks to discredit Plaintiffs’ evidence in two ways. First, Defendant broadly asserts that this evidence is simply not up to date. Doc. 29 at 2-3 (“[T]he jail’s response to the situation has evolved . . ., and many statements in the affidavits are dated and erroneous—they do not reflect current conditions in the jail.”). To address this concern, Plaintiffs have obtained five new declarations that describe the Jail’s conditions now. These declarations confirm that the Jail continues to flout public health guidance, and the conditions in the Jail remain dangerous. Indeed, these new declarations raise additional concerns. For example, in an updated declaration, Plaintiff Seth, who was released on April 23, 2020, describes problems that persisted until the day he was released one week ago. For instance, although Plaintiff Seth had symptoms of COVID-19, corrections officers never checked on his in his cell. Ex. F, Second Seth Decl. ¶ 4-7, 5 (“They just looked through the slot. They never asked anything. No one ever asked about if I was sick. They just check to make sure you are in your room. It was like this the whole time I was on lockdown and until I was released.”).17 The prisoner
17 See also Ex. D, Second Seth Decl. ¶ 7 (When I was sick with symptoms of coronavirus, I told the COs I wasn’t feeling good. They said to use a sick call form, but I couldn’t afford it. They didn’t ask me any more questions about my symptoms. They didn’t ever check on me later to see how I was feeling. When they came by my cell to count, I was usually lying in my bed, and they would just leave without saying anything. It was like this for the whole time I was sick, and I had
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in the cell next to Mr. Seth had symptoms of COVID-19 and then disappeared to the Medical Unit
for weeks; no one ever cleaned the cell, and the sick prisoner’s cellmate was still living there when
Mr. Seth was released. Id. ¶ 10. Although Mr. Seth is has bipolar disorder, he did not receive any
mental healthcare from the time that the lockdown began through the day of his release. Id. ¶ 15.
Because of this, Mr. Seth had suicidal thoughts. Id. Mr. Seth also describes recent failures in social
distancing. He notes that, during prisoners’ hour of out-of-cell time, they routinely spoke to other
prisoners through the open slot in the cell door. Id. ¶ 16. Jail staff made no effort to stop this. Id.
At the April 23 hearing that resulted in Mr. Seth’s release, approximately twelve prisoners were
packed into the Jail’s courtroom, about a foot apart. Id. ¶ 17. And during the release process, Jail
staff told Mr. Seth and six or seven other prisoners to line up in a narrow hallway, standing about
a foot apart. Id. ¶ 18.
Other recent declarations report similar problems. Prisoners wait days to receive responses to their sick calls, and many never receive a response.18 The jail continues to ignore symptomatic prisoners who seek evaluation or treatment for anything but a high fever.19 Pain medication is no longer available through commissary to prisoners who might like to manage their own pain.20
symptoms of coronavirus all the way up to the day I was released. I feel better now, but I still have some symptoms. I still get headaches and diarrhea.”). 18 Ex. F, Decl. 28 ¶ 8 (“I filled out three sick call requests. . . .I never got a response to any of my sick call requests.”); Ex. E, Decl. 11 ¶ 10 (“[T]he nurse tells me, ‘sick call is a process with a long, long line.’) 19 Ex. G, Decl. 29 ¶ 4 (“[T]hey told me that because I didn’t have a fever, I couldn’t have Coronavirus.”); Ex. F, Decl. 28 ¶ 7 (“[T]he nurses told me, ‘if you don’t have a fever, there’s nothing we can do for you.’); Ex. E, Second Decl. 11 ¶ 9 (“[T]he nurse just said, ‘I will give you a Tylenol, and you can just sign a sick call saying you want medical attention for your symptoms. But if you don’t have a temperature, you don’t have the Coronavirus.’”) 20 Ex. G, Decl. 29 ¶ 8 (“The nurse told me they’re saving Tylenol for people with Coronavirus. So you can’t ask the nurse for Tylenol anymore unless you’re COVID-positive. They also took Tylenol off the commissary list, so we can’t even order Tylenol ourselves anymore.”).
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Cleaning supplies are scarce. Ex. H, Decl. 30 ¶ 16 (“[E]very week we run out of cleaning supplies.”) Many people on the housing units seem sick.21
Known COVID-19 cases are being returned to their housing units. Declarant 11, who tested positive for COVID-19 and was isolated first in the ten-man quarantine cell and then on housing unit H6, was moved back to the general population on April 20—without being re-tested to confirm that he is no longer sick. Ex. E, Second Decl. 11 ¶ 5. He is still having symptoms. Id. at ¶ 6.
Defendant also contends that Plaintiffs’ evidence is not credible. In particular, Defendant notes that many of the prisoners’ declarations that describe the Jail’s conditions are not signed by those prisoners, “despite the fact that attorneys are still permitted to visit with clients.” Doc. 29 at 2. But as described above, the Jail’s procedure for non-contact visits is not safe; it requires the attorney and client to speak inches apart from one another, and to do so in the Jail where there is an ongoing outbreak of COVID-19. Regardless, the prisoners’ declarations are credible; they are signed by fifteen different public defenders under penalty of perjury, and they provide consistent accounts of the Jail’s conditions. Doc. 2-1 at 4-130.
I. Plaintiffs Are Entitled to Relief Under § 1983 A. Eighth and Fourteenth Amendment 1. Plaintiffs Are Likely to Succeed on Their Eighth and Fourteenth Amendment Claims Aside from identifying and stating the deliberate indifference standard, Defendant’s argument on Plaintiff’s Eighth and Fourteenth Amendment claims includes no law. Instead, it relies entirely on Defendant’s evidence. However, as described above, Plaintiffs’ evidence contradicts much of
21 Ex. H, Decl. 30 ¶ 23 (“I think it’s a really major issue that the jail is hiding the fact that there’s a lot more people in here sick than they’re claiming to the public.”)
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this evidence, Defendant’s evidence contradicts Defendant’s own claims, and Defendant’s evidence does not address several important topics at all. This Court should grant Plaintiffs relief.
a. The Jail’s Conditions Create a Substantial Risk of Serious Harm The objective factor of the deliberate indifference test is satisfied when the challenged conditions create “a substantial risk of . . . serious harm.” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995). Plaintiffs argue that the Jail’s conditions create this risk in two ways: they increase the risk of infection and they make it more likely that those who are infected will suffer serious illness, permanent physical damage, and death. Doc. 3-1 at 18-21; see also id. at 18-23 (describing these risks and citing to relevant law). Defendant does not address these arguments. Indeed, Defendant’s brief does not mention the objective factor at all. And Defendant’s statements suggest that Defendants agree about the seriousness of the risk prisoners face in the Jail. See, e.g., Doc. 29 at 1 (“The virus is very serious and can result in death.”); id. (“Never before has the country experienced a virus as contagious as COVID 19); id. at 2 (describing the virus’s spread within the Jail as “inevitable”). Defendant’s evidence confirms these dangers. See above (describing evidence suggesting that the Jail’s current outbreak is uncontrolled, that the Jail has failed to enforce social distancing, and that it has no plan to protect medically vulnerable prisoners). Moreover, aspects of the Jail’s conditions that Defendant does not dispute—the long-term, preemptive lockdown, punitive isolation conditions, and the termination of mental health care—enhance the risk that COVID-19 will cause serious illness.22 Thus, with no legal dispute from Defendant, and now with additional evidence of the present risks, Plaintiffs satisfy the objective factor.
22 As Dr. Robert Sapolsky, a Professor of Neurology at Stanford University explains in detail, these practices places prisoners “at a considerably heightened risk of contracting COVID-19 and becoming severely ill and even dying if they do.” Ex. E, Sapolsky Decl. ¶ 35; see also id. 39
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b. Defendant Disregarded the Excessive Risk Posed by COVID-19 The subjective component of deliberate indifference is satisfied where officials “kn[ew] of and disregard[ed] an excessive risk to [the plaintiff’s] health and safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Defendant does not contest that it knew of the risk.23 Thus, “[t]he issue is whether COVID-19 poses an excessive risk that is being disregarded.” Coreas v. Bounds, No. CV TDC-
20-0780, 2020 WL 1663133, at *10 (D. Md. Apr. 3, 2020). In addressing this issue, Defendant does not engage with Plaintiffs’ legal arguments. Instead,
Defendant (correctly) recites caselaw stating that the deliberate indifference standard is high, and
that accidental, inadvertent, or negligent conduct does not satisfy it. Doc. 29 at 19-20. Defendant then contends that Plaintiffs “cannot demonstrate that Director McDonough was deliberately indifferent to their needs” because “she led the way among correctional facilities in Maryland to prepare for the pandemic.” Id. at 20. For example, Defendant McDonough personally responded
(“[S]everal of the Prince’s George’s County Jail’s current policies are likely to cause the sort of stress that would depress the immune system and make a person more susceptible to COVID-19, particularly in combination with the stress of an ongoing outbreak of COVID-19 at the jail. These include the 23-hour lockdown policy, the isolation policies as currently administered (including punitive conditions and no mental health services), and the termination of mental health services.”). See Ex. Q, Order (Doc. 13), Doe v. Barr, 20-cv-02263-RMI, at 4, 6 (N.D. Cal. Apr. 27, 2020) (finding, based on expert testimony, that a detainee faced an increased risk of COVID19 because he has experienced prolonged psychological stress and had depression and posttraumatic stress disorder). 23 Regardless, Plaintiffs note that Defendant’s evidence thoroughly demonstrates Defendant’s knowledge, not only of the risks posed by COVID-19, but the risks created by the Jail’s particular policies. See, e.g.,. 37-22, at 39-40 (email from Jail officials stating, “With the existing elevated state of anxiety among inmates and staff, it would be more harmful to isolate inmates.”); Porter v. Clarke, 923 F.3d 348, 361 (4th Cir. 2019), as amended (May 6, 2019) (finding deliberate indifference where warden testified that “as humans, we don’t survive very well without human contact,” but nevertheless placed death row prisoners on long-term solitary confinement).
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to “parents of inmates and concerned residents of the County,”24 and provided “free calls” and
“soap to inmates.” Id.
However, as described above, both Plaintiffs’ and Defendant’s evidence contradict the
Jail’s claims about its actions. For example, the “free soap” Defendant touts was a small hotel-
sized bar at intake, and another upon commitment to the Jail.After that, prisoners must pay for
soap. See Compl. ¶¶ 85-86. Similarly, although the Jail contends it has implemented public health
recommendations like social distancing, its evidence includes pictures of Jail staff standing close
together (including at a “social distancing farewell party”) and, as recently as last week, the Jail
crowded twelve inmates into its courtroom, seated a foot apart. See above(describing other
purported policies that are undermined by Defendant’s evidence).
Defendant also notes that the Jail has lowered its population from “well over 700” to
“approximately 550.” Id. at 21. This is a positive step. But it does not cure the Jail’s inadequate
response to the risk of COVID-19—particularly alongside the Jail’s numerous other problems. As
courts have repeatedly found, the fact that an official took some positive action does not preclude a finding of deliberate indifference.25 Thus, even if, in addition to this population reduction,
24 Defendant McDonough did personally respond to concerned parents of prisoners in the Jail. But these exchanges only help to prove deliberate indifference. Through them, Defendant McDonough was informed of the precise conditions that Plaintiffs address in this lawsuit. And although she followed up on particular cases, she did not address the conditions themselves. Id. 25 See, e.g., Jehovah v. Clarke, 798 F.3d 169, 181 (4th Cir. 2015) (concluding that an inmate who had received “some treatment” could nonetheless establish that the prison’s doctors acted with deliberate indifference); De'lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013) (holding that, even if defendants “provided [plaintiff] with some treatment . . . it does not follow that [defendants] have necessarily provided constitutionally adequate treatment”); see also Alberti v. Sheriff of Harris Cty., Tex., 978 F.2d 893, 895-96 (5th Cir. 1992) (affirming the district court’s conclusion that the county was deliberately indifferent to overcrowding in county jails even though “[t]he county [could] point to several things it did to reduce the jail population,” such as encouraging local judges to release low-risk pretrial detainees”).
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Defendant truly did implement some of the policies it touts, its actions still violate the Eighth and Fourteenth Amendments if those actions were inadequate in light of these particular circumstances. De'lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013) (“[I]magine that prison officials prescribe a painkiller to an inmate who has suffered a serious injury from a fall, but that the inmate's symptoms, despite the medication, persist to the point that he now, by all objective measure, requires evaluation for surgery. Would prison officials then be free to deny him consideration for surgery, immunized from constitutional suit by the fact that they were giving him a painkiller? We think not.”).26
Indeed, in the context of COVID-19, federal courts have found deliberate indifference even where it was undisputed that officials adopted some appropriate measures. For example, in In Wilson v. Williams, the court found deliberate indifference even though officials had made “good efforts” to “change[] its operations to try to limit the virus’s spread. Ex. X, Order (Doc. 22), Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882, at *2 (N.D. Ohio Apr. 22, 2020). For example, the prison “implemented health screening measures” and “modified operations to somewhat reduce inmate contact with each other.” Id. at *2, *3. Yet, the court found that prison’s “shockingly limited available testing,” alone, amounted to deliberate indifference. Id. at *1, *8.27 The court also noted the prison’s “[failure] to separate its inmates at least six feet apart, despite
26 See also McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (“Even where medical care is ultimately provided, a prison official may nonetheless act with deliberate indifference by delaying the treatment of serious medical needs, even for a period of hours, though the reason for the delay and the nature of the medical need is relevant in determining what type of delay is constitutionally intolerable.”). 27 The Jail has also used an unknown number of tests on staff, resulting in 28 positive tests. Doc. 29-1 ¶ 33.
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clear CDC guidance for some time that such measures are necessary to stop the spread and save lives.” Id.28
This is particularly true where, as here, the Jail has failed to address critically important issues. Nothing in Defendant’s voluminous evidence reveals a plan for the protection of medically vulnerable prisoners. But see Doc. 36-21 at 4 (memo from Corizon, LLC, the company that contracts with the Jail for medical care, instructing that the Jail should “ensure that there is a specific plan in place” for medically vulnerable prisoners because they face “the highest risk” from COVID-19). This omission matters. Indeed, in Coreas v. Bounds, a court in this district found that petitioners could satisfy the subjective test where detention facilities had taken “steps in the right direction,” but left “notable gaps,” including a “major deficiency in the lack of any procedures to address the heightened risk to detainees with certain medical conditions.” No. CV TDC-20-0780, 2020 WL 1663133, at *11 (D. Md. Apr. 3, 2020).29 Similarly, in Coronel v. Decker, the court found deliberate indifference where “[t]he record contains no evidence that the Government took any specific action to prevent the spread of COVID-19 to high-risk individuals” in civil detention facility, even though the government “ha[d] taken some steps in response to COVID-19,”
28 Both Plaintiffs’ and Defendant’s evidence demonstrate that, like in Williams, the Jail’s testing is extremely limited and the Jail has failed to implement social distancing. Indeed, the Jail’s testing capacity in this case approaches that which the Wilson court found so “shockingly limited” that this alone was sufficient to show deliberate indifference; Wilson, No. 4:20-CV-00794, 2020 WL 1940882, at *1, *8. The prison in Wilson had seventy-five tests, and it was receiving twenty-five more each week, with a population around 2400, id. at *3-4; here, with a population around 600, the Jail has used twenty tests on prisoners, and it has twenty left, Doc. 29-1 ¶ 33. 29 The Court explained that, in light of these conditions, it would find the subject test satisfied “[i]f any detainee or staff member at [the facilities] were known to have COVID-19.” Coreas, No. CV TDC-20-0780, 2020 WL 1663133, at *11.
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including “increase[ing] sanitization” and “provid[ing] hand sanitizer to inmates.” 20-CV-2472
(AJN), 2020 WL 1487274, at *5, *6 (S.D.N.Y. Mar. 27, 2020).30
In sum, although Defendant insists that the Jail has weathered the pandemic in near-perfect
compliance with public health recommendations, the record before the Court tells a different story.
Defendant’s claims are contradicted by Plaintiffs’ evidence and Defendant’s own. Even if
Defendant’s representations are taken as true, the Jail has still not taken several obvious, critical
steps to protect prisoners’ safety. This constitutes deliberate indifference.31
30 See Coronel, No. 20-CV-2472 (AJN), 2020 WL 1487274, at *5 (“[The Government] has not isolated these high risk individuals. It has not created special safety or hygiene protocols for them or for staff interacting with them to follow. . . . [E]ven the steps the Government has taken do nothing to alleviate the specific, serious, and unmet medical needs of the high-risk Petitioners in this matter.”); cf. Fraihat v. Wolf, 19-cv-1546-JGB-SHK (C.D. Cal. Apr. 20, 2020) (finding deliberate indifference in the substantive due process context where, “[w]hile Defendant took some available measures to mitigate the threat of COVID-19,” Defendant had failed to “identify individuals most at risk of COVID-19 complications and to require specific protection for those individuals”). Additionally, the court Coronel relied on the fact that, “on the record before the Court, [the Government] has no system to even determine which of its detainees face heightened risk from COVID-19.” Coronel, No. 20-CV-2472 (AJN), 2020 WL 1487274, at *5. This appears to be a problem in this case as well. Although the Jail’s medical director provided a list of medically vulnerable prisoners at Plaintiffs’ request, the list is implausibly short—containing only twenty-three individuals. See Doc. 29-1 ¶ 31. More troubling, the director purported not to know that Plaintiffs meant by “medically vulnerable.” See Doc. 29-1 ¶ 31 (“Plaintiffs requested information regarding patients who are ‘medically vulnerable.’ It remains unclear to me how Plaintiffs define that term. I identify below certain patients with chronic medical conditions.”). 31 Defendant does not raise exhaustion under the Prison Litigation Reform Act (PLRA), which is an affirmative defense that must be pled. Jones v. Bock, 549 U.S. 199, 216 (2007) (failure to exhaust is an affirmative defense); Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (“[I]nmates need not plead exhaustion, nor do they bear the burden of proving it.”). However, since this Court requested information on the Jail’s grievance procedure, Doc. 24-1, Plaintiffs note that the evidence in the record demonstrates that the grievance procedure is “unavailable,” so exhaustion must be excused. Ross v. Blake, 136 S. Ct. 1850, 1859, 195 L. Ed. 2d 117 (2016). Prisoners are routinely denied grievance forms when they request them. See Ex. 11, Decl. 11 (Doc. 2-1 at 66) ¶ 38; Ex. 14, Decl. 14 (Doc. 2-1 at 78) ¶ 10; Ex. 19, Decl. 19 ¶ 11 (Doc. 2-1 at 108); Ex. 23, Decl. 23 (Doc. 2-1 at 112) ¶ 9; Ex. 24, Decl. 24 (Doc. 2-1 at 116) ¶ 12; Ex. 25, Decl. 25 ¶ 15; see also Ex.28, Decl. 28 (“No grievance forms are available. That whole grievance process is a joke. Basically, you have to ask your housing unit officer to get a grievance form in the first place. But most housing unit officers just want to resolve an issue without actually giving you a grievance form. Sometimes they’ll even call in the shift commander to try to talk you out of
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2. Plaintiffs Face Irreparable Harm, and the Balance of Equities and the Public Interest Favor Relief.
Defendant argues that Plaintiffs cannot show irreparable harm because none of the Named
Plaintiffs have “suffered any harm” because none has tested positive for COVID-19. Doc. 29 at 21.32 This argument is foreclosed by precedent. The Eighth Amendment “protects against future
harm,” Helling v. McKinney, 509 U.S. 25, 33 (1993); thus, a prisoner’s rights are violated when
she is exposed to “a substantial risk of . . . serious harm resulting from [her] unwilling exposure
to the challenged conditions.” Shakka, 71 F.3d at 166. And “the denial of a constitutional right . .
. constitutes irreparable harm.” Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987).
Defendant does not address whether relief serves the public interest or whether the balance of
equities favors Plaintiffs. Regardless, for the reasons stated in Plaintiffs’ brief, Plaintiffs satisfy
these factors as well.3-1 at 25-26.
3. If Necessary to Remedy the Eighth and Fourteenth Amendment Violations, This Court May Transfer Prisoners to Home Detention or Another Appropriate Facility.
The CDC and other public health experts have recognized that the Jail may not be able to
protect every prisoner’s constitutional rights without transferring at least some prisoners. See Doc. 3-1 at 32 n. 53 & accompanying text.33
getting a grievance form. And if you persist in your request for a grievance form, you’re risking getting punished. On multiple occasions, I have seen inmates be punished for insisting that they be given a grievance form.”). Tellingly, only one grievance form has apparently been filed about the Jail’s handling of COVID-19. Doc. 37-4 at 34-35. 32 Defendant also asserts that none of the Named Plaintiffs have “reported that they were in close contact with anyone who tested positive for COVID-19.” Doc. 29 at 21. Both statements are incompatible with Plaintiffs’ allegations: five of the Named Plaintiffs have symptoms of COVID19, Compl. ¶¶ 14, 15, 17, 18, 19, 21; one alleges that his cellmate went to the Medical Unit and did not return, Compl. ¶ 20. 33 See above (noting that several Plaintiffs are detained at the Jail even though a court has approved them for transfer to home detention because pretrial services, a division of the Department of Corrections, has exercised this option).
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Defendant does not dispute that this Court may do so. Therefore, if this Court determines that
the Jail’s conditions cannot be improved—or perhaps that some prisoners cannot be made safe in
them—without making appropriate transfers to home custody, it may transfer prisoners as
necessary to protect their rights and the rights of others in the Jail. See Doc. 3-1 at 31-33.34
B. This Court Should Enjoin Defendant’s Illegal Detention Policy.
Plaintiffs have alleged—supported by evidence—that Defendant has an unlawful policy of
detaining prisoners who are legally entitled to release, solely because those prisoners are COVID-
positive. Compl. (Doc. 2) ¶¶ 183-87. Plaintiffs request immediate relief under the Fourteenth
Amendment so that the Jail will not illegally detain them. Pls. Br. (Doc. 3-1) at 26-28.
Defendant makes no challenge to Plaintiffs’ legal argument on this claim.35 Instead, Defendant
contends (without evidence) that it has only illegally detained one COVID-positive person. Doc.
29 at 12. Defendant explains that his “release was postponed” only because that person’s “family
instructed Defendant McDonough that he could not come home,” and so the Jail could not release
him without “exposing him to the public.” Doc. 29.36
34 For example, Plaintiffs’ experts contend that the Jail must not place prisoners with serious mental illness in isolation without access to “enhanced psychological services,” Ex. 34, Haney Decl. (Doc. 2-1 at 210) ¶ 24, and that failure to provide these services could depress these prisoners’ immune systems and increase the risk of infection and serious illness from COVID-19, Ex. X, Sapolsky Decl. ¶ 39; id. ¶¶ 18-31 (describing the means by which psychological stress can increase the risks of COVID-19). If the Jail is largely able to remedy its conditions, but it cannot provide enhanced psychological services to prisoners in medical isolation with serious mental illness, transfer may be necessary to protect these particular prisoners’ rights. 35 Indeed, Defendant makes no reference to this claim in the argument section of its brief. See Doc. 29 at 17-21. 36 The man’s criminal defense attorney attests that the man’s family “desperately wanted him home,” but could not house him because they were medically vulnerable. Ex. 29, Glenn Decl. ¶ 24. However, had he been released when he was legally entitled to be, “he would have sought treatment at a local hospital.” Id.; see also Ex. 9, Decl. 9 ¶ 23 (stating, on April 7, 2020, “On Friday, April 3, my bond was paid. I want to be released. But they won’t release me until they decide I’m no longer contagious.”). When he was released after being illegally detained for fourteen days, he “rode the bus to a friend’s house where he was able to stay.” Id. Throughout the
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Beyond these statements, Defendant does not actually argue that it has no overdetention policy, nor does Defendant contend that it would not resort to illegal detention if these circumstances arose again. See Doc. 29 at 11-12. Regardless, Defendant’s admission that Director McDonough was involved in the overdetention is sufficient to establish that an official policy exists, even if this had been the only incident. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (“[W]here action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly.”); see also City of St. Louis v. Praprotnik, 485 U.S. 112 (1988) (“We have assumed that an unconstitutional governmental policy could be inferred from a single decision taken by the highest officials responsible for setting policy in that area of the government's business.”).
However, this was not the only incident; as Plaintiffs’ evidence describes, the Jail has illegally detained at least one other person because of his COVID-positive status. See Ex. 29, Glenn Decl. ¶ 25; see also Ex. 11, Decl. 11 ¶ 22 (“My bond is paid and I want to be released. They say I have warrants, but they won’t serve me with the warrants because I have Coronavirus. So I just have to sit here and wait.”). Moreover, Plaintiffs have alleged that the Jail has a policy of illegally detaining prisoners who are infected with COVID-19, and that they are therefore in danger of being illegally detained as well. Compl. ¶¶ 183, 204-206; see also Ex. 29, Glenn Decl. (Doc. 2-1 at 142) ¶ 24 (“It has also become clear that the jail has adopted a policy of illegally detaining people for no other reason than that they have tested positive for the Coronavirus.”). Plaintiffs’ evidence and
time that he was illegally detained, Ms. Glenn and the head of her office advocated for his release with “multiple jail officials.” Id. She also filed an emergency petition for habeas corpus in state court, but she was notified by chambers that it would not be heard until a week later (by the time it was set, the illegal detention had ended). Id.
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allegations show that Plaintiffs can likely prove the existence of a policy, and because this policy is clearly unlawful, this Court should enjoin it, see Pls. Br. (Doc. 3-1) at 26-28.
II. The Medically Vulnerable Subclass Is Entitled to Relief Under § 2241 Plaintiffs in the Medically Vulnerable Subclass—who are all pretrial detainees—seek release from the Jail under 28 U.S.C. § 2241 because it cannot detain them without exposing them to an unconstitutional risk of harm. See Pls.’ Br. (Doc. 3-1) at 28-31; Compl. ¶¶ 209-211. Aside from its contentions about Defendant’s efforts to contain COVID-19 (which, as described above, are largely contradicted by both Plaintiffs’ and Defendant’s evidence), Defendant does not specifically address whether the Jail can continue to detain medically vulnerable prisoners without exposing them to an unconstitutionally high risk of infection, serious illness, long-term physical damage, and death. And regardless, federal courts have granted § 2241 relief in cases where, because of the detention facility’s efforts and conditions, the risks imposed by COVID-19 were far lower than they are here. See, e.g., Order (Doc. 22), Wilson v. Williams, 4:20-cv-00794-JG, at 9-11, 20-21 (N.D. Ohio, Apr. 22, 2020) (granting § 2241 to a subclass of medically vulnerable prisoners even though the prison had made “good efforts” to control the virus, including effective symptom screening for prisoners and staff and education about hygiene and social distancing); see also Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133, at *10, *11 (D. Md. Apr. 3, 2020) (stating that it would release medically vulnerable detainees if there were any cases of COVID-19 at the facilities holding them, even though the facilities gave detainees “soap, hand sanitizer, and cleaning supplies,” encouraged them to seek medical treatment for illness, and had implemented thorough screening measures).
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Instead, Defendant contends that § 2241 is not the right vehicle for relief. In addition,
Defendant obliquely references exhaustion (without explicitly raising it), suggesting that Plaintiffs
could seek a remedy in state court instead. Both arguments are unavailing.
A. Section 2241 Is A Proper Vehicle for the Requested Relief.
Defendant contends that the Medically Vulnerable Subclass cannot proceed under § 2241
because they challenge the conditions—rather than the fact—of their confinement. See Doc. 29 at
17-19. Defendants primarily rely on the statutory language of § 2241, which states that a writ may
be granted when a prisoner “is in custody in violation of the Constitution . . . of the United States.”
§ 2241(c)(3); see Doc. 29 (quoting id.).
But the subclass members do contend that they are “in custody in violation of the Constitution.”
§ 2241(c)(3). They allege that the Jail’s conditions are unacceptably dangerous and cannot be
remedied in time to protect their lives. See Doc. 3-1, at 28-30. Therefore, although conditions
challenges normally proceed under § 1983, in these circumstances, the only way for the subclass
members to avoid unconstitutional harm is to “seek[] immediate release or a speedier release from confinement—the heart of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475 (1973).37 In other
37 The U.S. Supreme Court has left open whether, in some circumstances, a petitioner may challenge the conditions of his confinement through habeas corpus. See Preiser, 411 U.S. at 499 (stating, while explaining the traditional differences between civil rights actions and habeas cases, that “[t]his is not to say that habeas corpus may not also be available to challenge such prison conditions”). And the Court has suggested that where, as here, a prisoner cannot avoid unconstitutional conditions without challenging the fact of his confinement, his challenge to those conditions would sound in habeas. See Nelson v. Campbell, 541 U.S. 637, 644-45 (2004) (suggesting that, if a death row prisoner alleged that there were no set of constitutional conditions under which he could be executed, his claim would sound in habeas because it would amount to a challenge of the execution itself); see also Ex. E to Pls.’ Br., Doc. 3-1, Order (Doc. 23), Malam v. Adduci, No. 20-10829, at 8-9 (E.D. Mich. Apr. 6, 2020) (relying on Nelson to conclude that petitioner could seek relief under § 2241 because petitioner contended that release was the only adequate remedy to ensure her safety from the risk of COVID-19 in the correctional facility where she was detained).
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words, here, the unconstitutional conditions of confinement render the fact of confinement unconstitutional as well.38
Multiple federal courts have found § 2241 the appropriate vehicle for relief where a detention facility could not adequately protect a prisoner from COVID-19. See, e.g., Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497, at *4 (S.D. Tex. Apr. 17, 2020) (“Plaintiffs seek immediate release from detention because there are no conditions of confinement that are sufficient to prevent irreparable constitutional injury . . . Where an individual is ‘challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release,’ the proper remedy is a writ of habeas corpus.”) (quoting Preiser, 411 U.S. at 500);Order (Doc. 22), Wilson, 4:20-cv-00794-JG, at 9-11, 20-21 (granting a subclass of medically vulnerable prisoners relief under § 2241 where the prison’s conditions enabled the spread of COVID-19 and rejecting argument that § 2241 was an improper vehicle for their claims); see also Pls.’ Br. (Doc. 3-1) at 30 n. 51 (citing additional cases).
In Coreas v. Bounds, a federal court in this district concluded the same. No. CV TDC-20-0780, 2020 WL 1663133 (D. Md. Apr. 3, 2020). In that case, medically vulnerable immigration detainees sought release under § 2241 because the detention facility had not adequately protected them from the risk of COVID-19. As here, Defendants argued that § 2241 was an inappropriate vehicle for petitioners’ claims. The court rejected that argument. It explained, “[A]lthough the grounds on which they seek release relate to their conditions of confinement, Petitioners seek complete release from confinement.” Id. at *7. Accordingly, theirs was a request for habeas relief. Id.39
38 See Ex. C, Resnik Decl. ¶¶ 19-21 (“Because COVID-19 can end people’s lives unexpectedly and abruptly, COVID-19 claims turn the conditions of being incarcerated into a practice that affects the fact or duration of confinement”); see also Ex. C, Resnik Curriculum Vitae. 39 In its reasoning, the court explained that no binding Fourth Circuit Precedent governs whether and in what circumstances a petitioner may challenge his conditions of confinement under § 2241,
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So too here: prisoners in the Medically Vulnerable Subclass contend that the Jail cannot resolve
its dangerous conditions in time to protect them—thus, their only remedy is release from the Jail
altogether. See Pls.’ Br., Doc. 3-1 at 31; Compl. ¶¶ 209-211; id. at 45 (requesting “immediate
release pursuant to a writ or writs of habeas corpus for members of the Medically Vulnerable
Subclass”).40 As in Coreas, their request for release—the quintessential purpose of habeas relief—
is not outside the scope of habeas just because the Jail’s conditions form the basis for that request.41
B. This Court Should Use Its Discretion to Excuse the Exhaustion Requirement.
Exhaustion under § 2241 is an affirmative defense, and Defendant has not raised it.42 However,
in the context of a different argument, Defendant does suggest that relief under § 2241 is
and it distinguishes prior cases where that court found § 2241 inappropriate. See Coreas, No. CV TDC-20-0780, 2020 WL 1663133, at *6. Regardless, this Court “need not decide today whether conditions-of-confinement cases that do not challenge the ‘fact or duration’ of detention properly sound in habeas,” because, here, subclass members do challenge the fact of their confinement and seek release. Vazquez Barrera, No. 4:20-CV-1241, 2020 WL 1904497, at *4; see Compl. at 45 (requesting “immediate release pursuant to a writ or writs of habeas corpus for members of the Medically Vulnerable Subclass”). 40 Because a court may “dispose of a [writ application] as law and justice require,” § 2243, in Plaintiffs’ view, this Court has the discretion to determine how any release it orders should proceed, whether release will include any conditions, and whether prisoners may be returned to the Jail if and when the unconstitutional conditions are resolved. See also Resnik Decl. ¶¶ 17, 35. 41 Defendant argues that Coreas (the only case it cites in its argument on this point) is distinguishable because, as a separate basis for its conclusion that petitioners could proceed under § 2241, the court reasoned that immigration detainees had no other mechanism with which to challenge their confinement. Doc. 29 at 19; see also Coreas, No. CV TDC-20-0780, 2020 WL 1663133, at *7. Defendant argues that here, in contrast, Plaintiffs could seek relief in state court. Doc. 29 at 19. But the fact that the court in Coreas had a second basis for its conclusion is irrelevant; the court’s first, “most fundamental[]” basis for allowing petitioners to proceed under § 2241 (the fact that they sought release) squarely applies to the subclass members in this case. Coreas, No. CV TDC-20-0780, 2020 WL 1663133, at *7. Defendant’s point seems more appropriately construed as an argument that Plaintiffs have not exhausted their state court remedies. Accordingly, Plaintiffs address it as such. 42 Jones v. Bock, 549 U.S. 199, 216 (2007) (failure to exhaust is an affirmative defense); Santiago-Lugo v. Warden, 785 F.3d 467, 475 (11th Cir. 2015) (courts may consider failure to exhaust under 2241 “if the respondent properly asserts the defense.”) (emphasis added).
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inappropriate because “the detainees here can challenge their conditions of confinement and seek release by way of Writ of Habeas Corpus in state Circuit Court.” Doc. 29 at 19.43 Therefore, although this Court should not decide exhaustion at this time, Plaintiffs address it briefly now.
Federal courts apply a judge-made exhaustion doctrine in § 2241 cases. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490 (1973). Because exhaustion is not required by statute, a court may decide, pursuant to sound judicial discretion, whether to exercise jurisdiction in the absence of exhaustion. See Welch v. Reno, 101 F.Supp.2d 347, 351 (D.Md.2000) (citing McCarthy v. Madigan, 503 U.S. 140, 144 (1992)). In particular, exhaustion may be excused where petitioners “may suffer irreparable harm if unable to secure immediate judicial consideration of his claim.” McCarthy, 503 U.S. at 146–47. That is the case here. Subclass members face a high risk of serious illness and death from COVID-19. See Doc. 3-1 at 28. Given the outbreak at the Jail, many subclass members are likely infected now, see also Doc. 3-1 at 29.
But because of the disruptions that COVID-19 has caused in the Prince George’s County criminal court system, Plaintiffs cannot pursue timely relief in state court. Indeed, multiple factors—some specific to this particular state court system—have converged to cause serious delays. For attorneys, reaching clients in the Jail is a cumbersome process with many potential roadblocks that could create further delay. See Ex. K, Rettammel Decl. ¶ 4-5 (describing this process); Ex. 29, Glenn Decl. (Doc. 2-1 at 140-41) ¶ 19-22 (same). Prisoners in medical isolation are denied access to their attorneys altogether. Id. ¶ 17 (public defender stating, “[O]n Saturday, April 4, I was told that I would only be permitted to communicate with my [COVID-positive] client if I came to the jail and agreed to be locked into his isolation cell with him.”); see also Ex.
43 Defendant makes this point as part of its argument that the court’s conclusion in Coreas that petitioners could challenge conditions under § 2241 because they sought release does not apply to the Medically Vulnerable Subclass in this case. Doc. 29 at 19.
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K, Rettammel Decl. ¶ 10. In addition, the Courthouse has limited its operations and preliminary hearings are continuously pushed back. Id. ¶ 12, 14, 15. Because there are “far fewer opportunities to argue for release, the volume of bond reconsideration motions that are being fied [in state court] has increased exponentially.” Id. ¶ 15.
Together, the result is significant delay. Id.; see generally Ex. 28, Schneller Decl. (Doc. 2-1 at 132-35). Since COVID-19 can escalate rapidly, particularly for the medically vulnerable, these delays amplify the risk that subclass members will become seriously ill in a Jail that is unprepared to effectively care for them. Doc. 3-1 at 30. This (as well as the constitutional nature of the detention) constitutes irreparable harm, and exhaustion is inappropriate here. McCarthy, 503 U.S. at 146–47.
C. This Court Should Release the Medically Vulnerable Subclass Members on NonMonetary Bond Conditions Now.
Defendant does not dispute that, while it considers subclass members’ request for habeas relief, this Court may release them on non-monetary bond conditions. See Pls.’ Br. (Doc. 3-1) at 33-35 (describing this Court’s legal authority to do this); see also Ex. C, Resnik Decl. ¶¶ 27-51 (same). Nor does Defendant state that it would object to this Court doing so. Therefore, given the urgency of the risks to the Medically Vulnerable Subclass members (who are all detained pre-trial), this Court can and should release them on non-monetary bond conditions now.
III. CONCLUSION Accordingly, Plaintiffs respectfully request that this Court grant the requested relief.
Respectfully submitted on April 29, 2020,
By s/Elizabeth Rossi Elizabeth Rossi
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Bar No. 19616 Katherine Chamblee-Ryan Pro hac vice Olevia Boykin Pro hac vice Ryan Downer Pro hac vice CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Suite 800 Washington, D.C. 20009 katie@civilrightscorps.org 610-931-7715 Attorneys for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that on April 29, 2020 I caused the foregoing document to be electronically transmitted to the Clerk’s Office and to Defendant’s counsel using the CM/ECF System for filing.
s/Elizabeth Rossi Elizabeth Rossi
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

KEITH SETH, DAVID SMITH, MARIO BURCH, and JOHN DOES 1–5, Individually and on behalf of a class of similarly situated persons,
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections,
Defendant-Respondent.

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Case No. 8:20-cv-01028-PX

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FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
AND PETITION FOR WRITS OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 22411
STATEMENT OF THE CASE2
1. There is an uncontrolled outbreak of COVID-19 at the Prince George’s County Jail
(“the Jail”).3

1 The Parties agreed to permit amended pleadings filed no later than July 3, 2020 in their July 1, 2020, Joint Status Report (Doc No. 117) and this Court affirmed that filing deadline at the July 2, 2020 Status Hearing. See Fed. R. Civ. P. 15(a)(2) (permitting amended pleading’s with opposing party’s consent or court order).
2 The following allegations in paragraphs 2-186 describe the state of the Prince George’s County Jail (“the Jail”) at the time Plaintiffs filed their Complaint on April 21, 2020.
3 Since Defendant McDonough is being sued in her official capacity, “Defendant McDonough” and “the Jail” are used interchangeably in this motion.

Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 2 of 59
2. The Jail’s actions fueled this outbreak, and it has also failed to take appropriate action in response.
3. The prisoners4 housed there—predominantly pretrial detainees—are under a constant and substantial threat of contracting the disease, and those already infected receive grossly substandard medical treatment (if they receive treatment at all).
4. Because jails, prisons, and other detention and correctional facilities are particularly vulnerable to COVID-19, the U.S. Centers for Disease Control and Prevention (CDC) has recommended basic measures these facilities should take to control the spread of the virus and treat infected prisoners—for example, providing prisoners with free access to soap and evaluating prisoners for symptoms.
5. The Jail has ignored these and other public health recommendations. 6. As a result, the nearly 600 people now imprisoned at the Jail are denied even the minimal precautions necessary to mitigate against the risks of COVID-19. 7. The people confined in the Jail do not have adequate soap (the Jail charges money for it). They regularly wait a week or more for medical attention (that costs money too). The spaces they share with other prisoners are not adequately sanitized. They are denied basic hygienic supplies. Symptomatic inmates are regularly turned away by medical staff, returning to general housing where they will surely infect others. 8. Prisoners who test positive for COVID-19 are confined in filthy isolation cells, where the walls are covered in feces, mucus, and blood. They are barely monitored and receive no real treatment.
4 For simplicity, the term “prisoner” is used throughout to describe the people who are currently incarcerated at the Prince George’s County Jail, both pretrial and post-conviction.
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9. By maintaining these conditions, Defendant McDonough has needlessly exposed the people imprisoned in the Jail to a highly infectious and potentially fatal disease. This violates prisoners’ Eighth and Fourteenth Amendment rights.
10. The Jail also refuses to release COVID-positive prisoners—even when they have no legal basis to detain them—until the Jail deems them non-contagious. This violates prisoners’ Fourteenth Amendment rights.
11. Plaintiffs5 seek class-wide relief requiring the Jail to take the necessary steps to safeguard prisoners’ health and safety. A subset of Plaintiffs also request a writ of habeas corpus pursuant to 28 U.S.C. § 2241 for prisoners whose age or underlying medical conditions make them particularly vulnerable to severe illness and death from COVID-19 (the “Medically Vulnerable Subclass”).
JURISDICTION AND VENUE 12. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a), and 2241(a). This Court has jurisdiction over Medically Vulnerable Subclass’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 13. Venue is proper in this District under 28 U.S.C. § 1391(b) because the events giving rise to the claims asserted in this complaint occurred in this District.
PARTIES 14. Plaintiff Keith Seth is detained pretrial in Housing Unit 17 at the Prince George’s County Jail. He has chronic bronchitis for which he was hospitalized last year. He is currently experiencing symptoms of COVID-19, including loss of taste, diarrhea, coughing and severe
5 The term “Plaintiff(s)” includes the Medically Vulnerable Subclass members, who are also petitioners seeking habeas relief.
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shortness of breath. He cannot afford to pay the money required to request medical assistance. Mr. Seth has bipolar disorder; since the outbreak at the Jail, he has not received needed mental health treatment. See Ex. 1, Seth Decl. Mr. Seth filed a bond motion on April 8, 2019. It is still pending.
15. Plaintiff David Smith is detained pretrial in Housing Unit 9 at the Prince George’s County Jail. He suffers from chronic bronchitis. Since the outbreak, the Jail has not provided Mr. Smith with needed mental health treatment. See Ex. 2, Smith Decl. Mr. Smith filed a motion for bond reconsideration on April 8, 2020. That motion is scheduled for a hearing on April 24, 2020.
16. Plaintiff Mario Burch is detained pretrial in Housing Unit 8 at the Prince George’s County Jail. He has not seen anyone clean or sanitize any surfaces in his unit. He is “extremely scared of contracting the virus.” Ex. 3, Burch Decl. Mr. Burch’s bond was originally set at $3000, but he could not afford to purchase his release. On April 9, 2020, the court revoked his bond. He is facing two charges, each of which has a statutory maximum sentence of 90 days.
17. Plaintiff John Doe No. 16 is detained pretrial in Housing Unit 10 at the Prince George’s County Jail. He suffers from acute asthma. He has recently experienced symptoms of COVID-19: headaches, nausea, and shortness of breath. His cellmate also has symptoms of COVID-19. See Ex. 4, John Doe No. 1 Decl. On March 19, 2020, a court approved Mr. Doe No. 1 be released on home detention with GPS monitoring. The Pretrial Services Agency (“pretrial services”), which is part of the Department of Corrections, has not released him.
18. Plaintiff John Doe No. 2 is detained post-conviction in Housing Unit 17 (the work unit) at the Prince George’s County Jail. He suffers from severe asthma, for which he previously has been hospitalized. He has been spitting up brown mucus and having trouble breathing. Mr. Doe No. 2 has asked for medical attention or a test for COVID-19, but he was refused and told
6 John Doe Nos. 1-5 will seek leave to proceed by pseudonym. 4

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that the Medical Unit is too full. He asked for an inhaler, but his request was denied. On April 9, Mr. Doe No. 2 filed a motion requesting to serve his sentence on home detention. His motion has not been set for a hearing. See Ex. 5, John Doe No. 2 Decl.
19. Plaintiff John Doe No. 3 is detained pretrial in the Prince George’s County Jail. He uses a cane to walk and has numerous medical issues. Prior to the outbreak, Mr. Doe was housed in the Medical Unit. In late March, he was transferred to Housing Unit 11-B, which houses medically vulnerable prisoners, but (unlike the Medical Unit) does not have any on-site medical equipment or staff. He is currently experiencing sneezing and a cough. See Ex. 6, Decl. John Doe. No. 3 Decl. On April 9, 2020, a court approved Mr. Doe No. 3 for release to pretrial services. Pretrial services has not released him. Mr. Doe No. 3 is detained on a single count of violating a protective order, which carries a statutory maximum of 90 days.
20. Plaintiff John Doe No. 4 is detained pretrial in Housing Unit 9 at the Prince George’s County Jail. At least four detainees from Housing Unit 9 have been sent to the Medical Unit and not come back. One of them was his cellmate. See Ex. 7, John Doe No. 4 Decl. A court has approved Mr. Doe No. 4 for transfer to home detention, but pretrial services has not transferred him to home detention.
21. Plaintiff John Doe No. 5 is detained in Housing Unit 8 of the Prince George’s County Jail. He has asthma, chronic bronchitis, and is obese. Due to the poor circulation in his cell, he has been having difficulty breathing. Many people on his unit seem sick. See Ex. 8, John Doe No. 5 Decl. A court set bond for Mr. Doe No. 5 at $3000, with an option to be released upon paying 10 percent of it. Mr. Doe No. 5 cannot afford to purchase his release. The court has also approved Mr. Doe No. 5 for pretrial supervised release. Pretrial services has not released him.
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22. Defendant Mary Lou McDonough is the Director of the Prince George’s County Department of Corrections. She is sued in her official capacity.
FACTUAL ALLEGATIONS A. COVID-19 Is Highly Infectious and Dangerous 23. On March 11, 2020, the World Health Organization (“WHO”) declared the outbreak of COVID-19 a global pandemic.7 24. States and counties across the nation have hurried to take the “urgent and aggressive action” the WHO deems necessary to slow the infection rate of the virus.8 25. Still, to date, more than 750,000 Americans are known have contracted COVID-19 and it has caused at least 35,000 deaths.9 26. D.C., Maryland and Virginia have reported more than 24,000 cases,10 and Maryland leads the region in both the number of cases and deaths: In the 46 days11 following Maryland’s first three confirmed cases, 12,836 people have tested positive for the disease and 544 people have died.12
7 World Health Organization, Director-General Opening Remarks (March 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-themediabriefing-on-covid-19---11-march-2020. 8 Id. 9 U.S. Map, Johns Hopkins School of Medicine (updated April 20, 2020) https://coronavirus.jhu.edu/us-map. 10 Jenna Portnoy, Patricia Sullivan, and Antonio Olivo, Coronavirus in the DMV: What you need to know, Wash. Post (Apr. 19, 2020) https://www.washingtonpost.com/dc-mdva/2020/03/07/maryland-virginia-dc-coronavirus/?arc404=true#maryland. 11 Jenna Fulginiti, Tramon Lucas, and Greg Ng, Timeline: Coronavirus in Maryland, WBALTV (Apr. 19, 2020) https://www.wbaltv.com/article/timeline-coronavirus-in-maryland/31394971#. 12 Portnoy, supra note 7.
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27. COVID-19 is highly contagious. An infected person can spread the virus through brief, indirect contact with others. Every time an infected person coughs, sneezes, or speaks, she might pass the virus to those in her vicinity.13
28. The virus can survive on inanimate surfaces like cardboard, plastic or steel for up to three days.14 The respiratory droplets from an infected individual can linger in the air for as many as three hours.15
29. An unknown number of infected people are nearly or entirely asymptomatic. This means a person who has contracted the virus can pass it to others without knowing she is sick. Accordingly, some researchers insist, “Everyone should act as if they are already infected.”16
30. For those who contract COVID-19, the results can be dire. 31. An estimated sixteen percent of those who contract it will suffer severe illness. Ex. 30, Meyer Decl. ¶ 9. 32. In the United States, roughly three percent of those who are infected die. Ex. 32, Benninger Decl. ¶ 2(G)(i).

13 Ex. 30, Meyer Decl. ¶ 8 (“The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces.”). See also Ex. 31, Meyer Curriculum Vitae.

14 Neeltje van Doremalen et al., Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, New England J. Medicine (March 17, 2020), https://www.nejm.org/doi/full/10.1056/NEJMc2004973.

15 Ex. 32, Benninger Decl. ¶ 2(C); see also Ex. 33, Benninger Curriculum Vitae.

16 Nina Bai, Coronavirus Is Sickening Young Adults and Spreading Through Them, Experts Say,

University

of

California

San

Francisco

(Mar.

20,

2020)

https://www.ucsf.edu/news/2020/03/416961/coronavirus-sickening-young-adults-and-spreading-

through-them-experts-say.

7

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33. Twenty percent of those who contract COVID-19 will need hospitalization, and five percent will require intensive care. Id. ¶ 2(F).
34. Those who survive the virus may suffer long-term damage to the heart, liver, and lungs.17
35. These risks of severe illness and death are more acute for people who are over a certain age or who have pre-existing conditions, including asthma, lung disease, heart disease, and diabetes.18
36. Without effective public health measures, the U.S. Centers for Disease Control and Prevention (CDC) has projected that over 200 million people could be infected.19
37. This would overrun the healthcare system, making it impossible for many critically ill people to receive the care they need to live.20

17 Melissa Healy, Coronavirus infection may cause lasting damage throughout the body, doctors

fear, L.A. Times (April 10, 2020), https://www.latimes.com/science/story/2020-04-

10/coronavirus-infection-can-do-lasting-damage-to-the-heart-liver (describing studies finding

impaired liver function and heart failure in COVID-19 patients); Panagis Galiatsatos, What

Coronavirus

Does

to

the

Lungs,

Hopkins

Medicine,

https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/what-coronavirus-

does-to-the-lungs (describing potential long-term lung damage from COVID-19).

18 Centers for Disease Control, At Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-

ncov/need-extra-precautions/groups-at-higher-risk.html (last reviewed Apr. 15, 2020).

19 James Glanz, et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say,

N.Y.

Times

(Mar.

20,

2020),

available

at

https://www.nytimes.com/interactive/2020/03/20/us/coronavirus-model-us-outbreak.html.

20 Leana Wen, Hospitals are overwhelmed because of the coronavirus. Here’s how to help., N.Y. Times (Mar. 15, 2020), https://www.washingtonpost.com/opinions/2020/03/15/hospitals-areoverwhelmed-because-coronavirus-heres-how-help; see also Ex. 30, Meyer Decl. ¶ 10 (“Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.”).

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38. To prevent this, the shape of daily life for most Americans has radically changed: 97 percent of the U.S. population is now subject to some degree of imposed shutdown or stay athome decree.21
39. On March 30, Maryland Governor Larry Hogan issued a stay-at-home order, mandating that residents may leave their homes only as needed to work essential jobs or complete essential tasks, like purchasing food and medicine.22
40. On the same day, D.C. Mayor Muriel Bowser and Virginia Governor Ralph Northam announced stay-at-home orders that require residents to stay in their homes and cease all non-essential activities until May 15, 202023 and June 10, 2020,24 respectively.
41. Even with these extreme measures, which have been replicated across the country, the national infection curve “has not yet flattened,”25 and data suggests that, for D.C., Maryland and Virginia, the peak of the virus may be weeks or months away.

21 All Your Coronavirus Questions Answered, Time (Apr. 14, 2020), https://time.com/5820118/coronavirus-questions-answered.

22 The Office of Governor Larry Hogan, As COVID-19 Crisis Escalates in Capital Region, Governor Hogan Issues Stay at Home Order Effective Tonight (Mar. 30, 2020) https://governor.maryland.gov/2020/03/30/as-covid-19-crisis-escalates-in-capital-regiongovernor-hogan-issues-stay-at-home-order-effective-tonight.
23 On April 15, Mayor Bowser announced that the D.C. order would extend until May 15. Marty Johnson, DC extends stay-at-home order through May 15, The Hill (Apr. 15, 2020) https://thehill.com/homenews/state-watch/492928-dc-extends-stay-at-home-order-through-may15.

24 Executive Order Number 55, Temporary Stay At Home Order Due to Novel Coronavirus

(COVID-19)

(Mar.

30,

2020)

https://www.governor.virginia.gov/media/governorvirginiagov/executive-actions/EO-55-

Temporary-Stay-at-Home-Order-Due-to-Novel-Coronavirus-(COVID-19).pdf

25 All Your Coronavirus Questions Answered, supra note 19.

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42. The University of Pennsylvania Medicine’s COVID-19 Hospital Impact Model for Epidemics predicts that the regional peak of COVID-19 infections and deaths will occur in late June or early July.26
43. Though it may be difficult for those who have already spent weeks at home to fathom, the best evidence indicates that D.C., Maryland, and Virginia are at only “the end of the beginning” of this crisis.27
B. COVID-19 is Causing a Crisis in Prince George’s County 44. Prince George’s County is the “epicenter of [the COVID-19 epidemic in] the state.”28 45. As of April 14, the County had 2356 confirmed cases and 72 deaths.29 Though Prince George’s County makes up only 15 percent of the state’s population, its COVID-19 deaths have made up nearly 25 percent of the total COVID-19 deaths in the state of Maryland.30

26 Jeffrey Katz and Martin Austermule, How Close Is The D.C. Region To Flattening 'The Curve'

Of

The

Coronavirus?,

NPR

(Apr.

10,

2020)

https://www.npr.org/local/305/2020/04/10/831751001/how-close-is-the-d-c-region-to-flattening-

the-curve-of-the-coronavirus.

27 Brad McMillan, A Coronavirus Milestone: The Flattening Of The Curve, Forbes (Apr. 14, 2020) https://www.forbes.com/sites/bradmcmillan/2020/04/14/a-coronavirus-milestone-the-flatteningof-the-curve/#71bc0f3e4ba5.

28 Rachel Chason, Hospitals in Prince George’s seeing an influx of critically ill coronavirus patients, Washington Post (Apr. 14, 2020), https://www.washingtonpost.com/local/princegeorges-hospitals-coronavirus-crisis/2020/04/14/2ac05724-7e7f-11ea-904068981f488eed_story.html.

29 Id.

30 Fulguniti, supra note 9.

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Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 11 of 59
46. The County has high rates of diabetes, heart disease, hypertension and obesity— conditions that make one more vulnerable to complications from the virus.31 The County has had a shortage of healthcare provider shortage for years. Up to 60 percent of residents travel out-ofcounty for care.32
47. In addition, in recent weeks, medical professionals across the country have seen racial disparities in COVID-19 infection, hospitalization, and mortality rates.33 Black people who are infected are more likely to suffer severe illness and die.34 An analysis by the Washington Post found that majority-black counties had infection-rates three times that of majority-white counties.35
31 Regional Primary Care Coalition, The Healthcare Landscape in Prince George’s County: Opportunities for Improvement, available at http://www.regionalprimarycare.org/wpcontent/uploads/2018/07/The-Healthcare-Landscape-in-Prince-Georges-County.pdf. 32 Id. At 9. 33 John Eligon, et al., Black Americans Face Alarming Rates of Coronavirus Infection in Some States, N.Y. Times (Apr. 7, 2020), https://www.nytimes.com/2020/04/07/us/coronavirusrace.html. 34 Ex. 32, Benninger Decl. ¶ 2(h) (“Preliminary data suggest that African-Americans are suffering from more severe illness related to COVID-19 at higher rates than other races in the United States.”). 35 Reis Thebault, Andrew Ba Tran, and Vanessa Williams, The coronavirus is infecting and killing black Americans at an alarmingly high rate, Wash. Post (Apr. 7, 2020), https://www.washingtonpost.com/nation/2020/04/07/coronavirus-is-infecting-killing-blackamericans-an-alarmingly-high-rate-post-analysis-shows/?arc404=true. These disparities exist because other inequities and disparities do. Black people disproportionately hold jobs in which they are unable or not allowed to work from home, putting them at risk of contracting the virus on their way to or at work. Black people also have higher rates of the underlying medical conditions that CDC says put people at higher risk of severe illness from COVID-19. Id.
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48. Accordingly, because the majority (64 percent) of Prince George’s County is Black, the people of Prince George’s County are more susceptible to COVID-19 than other counties across the state.
49. Area hospitals are “inundated with critically ill patients” and are at or exceeding their capacities.36
50. Beginning April 14, at least two County hospitals—Prince George’s Hospital and MedStar Southern Maryland Hospital Center—were forced to send patients to out-of-county hospitals because they had no room in their own critical care units, even though both hospitals have been rapidly adding beds within the facility and in tents outside of the building.37
51. On March 16, Prince George’s County Executive Angela Alsobrooks declared a state of emergency due to COVID-19.38
52. On April 7, Governor Larry Hogan flagged Prince George’s County, along with ten others, to the White House as needing “urgent federal attention.”39
53. In addition to Maryland’s statewide stay-at-home order, the County has instituted a number of efforts to slow the spread of the virus.
36 Chason supra note 26. 37 Id. 38 Office of the Prince George’s County Executive Angela D. Alsobrooks, County Executive Alsobrooks Officially Declares A State Of Emergency In Prince George’s County Due To Covid19 (Mar. 16, 2020) https://www.princegeorgescountymd.gov/ArchiveCenter/ViewFile/Item/3171 39 Andrea Swalec, White House Designates DC-Baltimore Area as an ‘Emerging Hot Spot’ for Coronavirus, Hogan Says, NBC Washington (Apr. 7, 2020) https://www.nbcwashington.com/news/local/white-house-has-designated-dc-baltimore-area-asemerging-hot-spot-for-virus-hogan-says/2266929.
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54. As early as March 12, 2020, the County announced that its Courthouse would close to the public until May 1, 2020.40
55. The Circuit Court and District Court issued orders outlining the limited operations courts would continue to perform.
56. On March 16, County Executive Alsobrooks closed all restaurants, movie theaters, gyms and bars, and closed to the public all government buildings.41
57. On April 10, the County announced on that it had set up a quarantine site for first responders to “ensure[] they will not take the virus home to their families should they be exposed.”42
58. As of April 15, residents have been ordered to cover their faces when they go to the grocery store or the pharmacy, or when they the ride the County’s bus system.43
B. Jails and Prisons Are Exceedingly Vulnerable to COVID-19 59. Epidemics pose a heightened risk in jails, prisons, and detention centers. 60. These “[c]ongregate settings . . . allow for rapid spread of infectious diseases that
are transmitted from person to person.” Ex. 30, Meyer Decl. ¶ 16.

40 Prince George’s County Courts, The Courthouse is closed to the Public through June 5, 2020,

due

to

the

Coronavirus

Pandemic

(Mar.

12,

2020)

https://www.princegeorgescourts.org/AlertCenter.aspx?AID=The-Courthouse-is-closed-to-the-

Public-t-22.

41 County Executive Official Declares A State of Emergency supra note 43.

42 Prince George’s County, Community Connections Newsletter: COVID-19 Update (Apr. 10, 2020) https://content.govdelivery.com/accounts/MDPGC/bulletins/285c9ff.

43 Office Of The Prince George’s County Executive Angela D. Alsobrooks, County Executive Alsobrooks To Sign Executive Order Requiring Face Coverings For Patrons In Grocery Stores (Apr. 11, 2020) https://www.princegeorgescountymd.gov/DocumentCenter/View/29817/PressRelease---Face-Coverings.

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61. Diseases that spread in these facilities imperil the communities around them as well.44
62. At a time when it is imperative that the County flatten its curve, correctional facilities like Prince George’s County Jail “drive up the curve.”45
63. Moreover, as a general matter, jails and prisons are often poorly equipped to enact
adequate prevention measures and care for incarcerated people who get sick. Ex. 30, Meyer Decl.
¶¶ 17–18.
64. And because people incarcerated in jails and prisons are more likely to have chronic
underlying health conditions, “they are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.” Id. ¶ 20.46
65. These concerns multiply in the face of COVID-19, which is both highly
communicable and highly dangerous.
44 Ex. 30, Meyer Decl. ¶ 16 (“Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. . . . Prison health is public health.”); see also Ex. 34, Haney Decl. ¶ 17 (“Staff members are at risk of having contracted COVID-19 and then transmitting it to all those inside the institutions, including prisoners and other staff.”). 45 Philip Jackson, Maryland jails are incubators for the coronavirus and precautions must be taken to avoid an outbreak, experts say, Baltimore Sun (Mar. 13, 2020) https://www.baltimoresun.com/coronavirus/bs-md-ci-coronavirus-maryland-jails-20200313zn4k2knuujgvnhqmpm63jib3la-story.html. 46 See Ex. 32, Benninger Decl. ¶ 3(c) (“[Prisoners] are higher risk at baseline than the general population for having more severe complications from COVID-19 because they are disproportionately more likely to be afflicted with medical chronic conditions, be obese, and be African-American. In addition, they are more susceptible to mental health complications, especially during this pandemic, because they are more likely to have mental health comorbidities and pandemics and isolation can increase feelings of anxiety and depression.”).
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66. “Containing this virus has been difficult in the community and it is almost impossible in correctional health settings given the congregate environment.” Ex. 32, Benninger ¶ 3(B).47
67. As a result, “people will die behind bars of coronavirus who would have survived in the community.” Id.
C. There is a COVID-19 Outbreak at the Prince George’s County Jail 68. The first case of COVID-19 at the Prince George’s County Jail was reported on March 30, 2020.48 69. Addressing this case, Defendant DOC Director Mary Lou McDonough told The Washington Post, “I expect we’ll have more before this is over,” and compared jails to “cruise ships without the views or the amenities.”49 70. As Defendant McDonough explained, “A jail is a pretty transitory place. People are close together. You’re all breathing the same air.”50
47 See also Ex. 30, Meyer Decl. ¶ 24 (“When even the most sophisticated hospital systems in this country have been overwhelmed by the COVID-19 pandemic, it will be impossible for prison health systems to contain it. This is especially true when emergency preparedness plans are underdeveloped.”). 48 Deb Belt, “Female Inmate at Prince George’s County Jail Has Coronavirus,” Patch.com (Mar. 30, 2020), https://patch.com/maryland/bowie/female-inmate-prince-georges-county-jail-hascoronavirus. 49 Keith L. Alexander, Dan Morse, and Spencer S. Hsu, “As inmates in D.C., Maryland and Virginia test positive for the coronavirus, jail officials scramble to reduce the risk,” Wash. Post (Apr. 1, 2020), https://www.washingtonpost.com/local/public-safety/as-inmates-in-dc-marylandand-virginia-test-positive-for-the-coronavirus-jail-officials-scramble-to-reduce-therisk/2020/04/01/b0d9cfd8-7363-11ea-85cb-8670579b863d_story.html. 50 Id.
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71. Four days after the first case, on April 3, 2020, a total of three prisoners and one jail guard had tested positive for the virus.51
72. The DOC has not reported the number of COVID-19 cases at the jail since that
date.
73. But the virus continues to spread.
74. Over the last month, prisoners have seen people removed from their housing units or reporting to the Medical Unit because of COVID-19 symptoms.52
75. Some jail guards are missing from their regular shifts.53 76. Many prisoners appear to be sick.54 From what they have been able to observe from
their cells or the Medical Unit, Plaintiffs are aware of at least 14 prisoners with confirmed cases
of COVID-19 across at least half of the jail’s ten adult housing units.
77. A jail guard told the prisoners in one housing unit that there are 77 cases of COVID-
19 at the jail. Ex. 8, John Doe No. 5 Decl. ¶ 13.
51 Laura Wainman, “3 Inmates, 1 Correctional Officer at Prince Georges Department of Corrections Test Positive for Coronavirus,” WUSA9 (Apr. 3, 2020), https://www.wusa9.com/article/news/health/coronavirus/coronavirus-prince-georges-county-jailinmates-officer/65-b4e2051e-7b29-41e7-96f3-eb2a9473e038. 52 Ex. 5, John Doe No. 2 Decl. ¶5 (“In the last 10 days at least six individuals have been removed from my housing unit because they were experiencing symptoms of the coronavirus, including my bunkmate.”); Ex. 25, Decl. 25¶16 (“I would guess at least six people from my unit alone, H17, have gotten infected.”); Ex. 15, Decl. 15 ¶6 (observing “more people going to the medical unit than was typical”); Ex. 24, Dec24 ¶4 (“Four people have left the unit and not returned.”). 53 Ex. 24, Decl. 24 ⁋4 (“Two of the regular officers for the evening shift have not been seen for a few weeks.”). 54 Ex. 15, Decl. 15 ¶6 (“I have heard many people coughing on the unit and in the last two weeks”); Ex. 24, Decl. 24 ¶4 (“There seems to be a flu or sickness spreading around the unit, for over 3 weeks now.”); Ex. 24, Decl. 24 ¶5 (“There are 82 people in my unit. Many of them are sick or have been sick.”).
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78. As one prisoner described it, “I feel like everyone in the unit is catching it. . . . [I]t seems like almost everyone is sick.” Ex. 21, Decl. 21 ¶12.
D. The Jail Has Not Taken Basic Precautions to Prevent the Spread of COVID-19 79. On March, 23, the CDC issued explicit recommendations to correctional facilities about how to prevent or slow the spread of COVID-19. See Ex. 36, U.S. Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities (March 23, 2020). 80. Many of these measures are basic. For example, corrections facilities should “[c]reate and test communications plans to disseminate critical information to incarcerated/detained persons, staff, etc. as the pandemic progresses.” Ex. 36, CDC at 5. 81. But the jail has not provided prisoners with information about COVID-19, its symptoms, or how to protect themselves from it.55 82. The CDC also provides clear guidelines on cleaning, disinfecting, and hygiene. Several times a day, staff should “clean and disinfect surfaces and objects that are frequently
55 Ex. 10, Decl. 10 ¶ 8 (“They never gave us any warning or any memorandum in our housing unit saying what was going on, what Coronavirus is, what you can do to protect yourself, what the symptoms are. We never saw one memorandum in our whole housing block. We were never told to stay six to ten feet away from people. Nothing. Of course, every time there’s a change to the phone system or the commissary system, we get a memorandum. But they never gave us a memorandum about Coronavirus.”); Ex. 11, Decl. 11¶ 8 (“They didn’t make any announcement or anything telling us about it, and the jail was being locked down more and more at that time.”); Ex. 22, Decl. 22 ¶ 5 (“The jail [has not been] specific about the symptoms.”). See also Ex. 32, Benninger Decl.¶ 3(I) (“Inmates are not being informed of jail policies regarding COVID-19. They have not received information in writing or verbally regarding COVID-19 or prevention strategies. They have not received guidance regarding social distancing. . . .Inmates are restricted from watching television news related to the nature of solitary confinement. Inmates do not have sufficient source of updated information regarding COVID-19.”)
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touched in common areas. Ex. 36, CDC at 9. Facilities should provide prisoners with “no-cost
access” to “liquid soap” and “tissues.” Ex. 36, CDC at 10.
83. None of this happens at the Prince George’s County Jail.
84. Prisoners do not have liquid soap or hand sanitizer.56
85. The jail gives prisoners one or two bars of soap when they first arrive.57 If prisoners
want soap after that, they can buy bar soap from the commissary. 58 Prisoners may only buy one
bar of soap per week. Ex. 8, John Doe No. 5 ¶ 17.
86. “If you don’t have money, you can’t buy soap[.]” Ex. 13, Decl. 13 ⁋ 9. Many
prisoners who cannot afford it do not have soap at all. Ex. 19, Decl. 19 ¶ 15. They “use only water
to try and wash themselves.” Ex. 3, Burch Decl. ¶ 7.59 Some trade food for soap.
87. Jail staff do not regularly clean and sanitize shared amenities or surfaces in the
housing units’ common areas.60
56 See Ex. 36, CDC at 10 (recommending that inmates be provided no-cost access to liquid soap and, if possible, hand sanitizer). 57 Decl. 13 (Ex. 13) ¶ 9 (“I came in fairly recently, so I have a bar of soap, but many do not have adequate personal cleaning supplies.”); Ex. 3, Burch Decl. ¶ 7 (“I currently have one bar of soap that I received from the jail when I came in.”).
58 Ex. 15, Decl. 15 ¶ 9 (“[D]etainees with access to funds can buy soap from the Commissary for approximately $2.50 per bar.”). Hygiene kits also contain a bar of soap, along with toothpaste, a toothbrush, and deodorant; they can be purchased at the commissary for $9. Ex. 9, Decl. 9 ¶ 17.
59 Ex. 32, Benninger Decl.¶ 3(D) (“Inmates in medical isolation are experiencing significant delays, up to a week, in receiving hygiene items and soap. Inability to access soap is inappropriate during a pandemic.”)
60 Ex. 15, Decl. 15 ¶8 (“The only time surfaces and areas are cleaned down is the beginning of each shift. During the day, as people circulate within the housing unit, no steps are taken to wipe down shared surfaces. The staff clean their own areas such as their command desks but I have not seen them clean any other areas during shifts.”); Ex. 19, Decl. 19 ¶10 (“The unit is no cleaner now than it was before the outbreak.”); Ex. 3, Burch Decl. ¶9 (“I have not seen anyone clean or sanitize any surfaces in my housing unit.”); Ex. 18, Decl. 18 ¶16 (“During the day, as people circulate within the housing unit, no steps are taken to wipe down shared surfaces. I sometimes see staff
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88. Phones are not regularly cleaned between uses. On some units, they are never cleaned.61
89. The cells of prisoners who have been transferred to the Medical Unit for COVID19 are left dirty and unsanitized for days, despite the fact that cells are shared.
90. Prisoners do not have their own cleaning supplies. They can request them—a spray bottle and paper towels (which are rationed)—to clean their own cells during their hour of recreation time.
91. Even these supplies are limited, and prisoners cannot always get them.62 92. The CDC suggests that correctional facilities implement “social distancing” strategies. “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.” Ex. 36, CDC at 4. 93. However, the Jail has not enacted (or explained) effective social distancing measures.
wiping down surfaces, but these are generally just the desks or other surfaces that the staff regularly use – not the ones we detainees interact with.”). 61 Ex. 15, Decl. 15 ¶7 (“The phones are not cleaned between uses.”); Ex. 2, Smith Decl. ¶11 (“The phone is not getting wiped down between people using it.”); Ex. 23, Decl. 23 ¶12 (“To my knowledge, detail only cleans the phones once a day.”); Ex. 25, Decl. 25 ¶10 (“Generally, phones are not cleaned between uses, though individual inmates will do their best. As I was talking to my lawyer on the phone on April 10, 2020, I observed several guys finish phone calls, and the phones were not cleaned.”); Ex. 8, John Doe No. 5 Decl. ¶ 14 (“The phones are not cleaned between uses.”). 62 Ex. 30, Meyer Decl. ¶ 29. (“Inconsistent access to hygiene and disinfection measures will result in widespread infection throughout the facility.”)
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94. The vast majority of prisoners are sharing their roughly 60 square foot cells with a
cellmate, sleeping in bunks directly on top of one another.
95. Even prisoners in different cells are less than six feet apart.
96. Jail guards enter prisoners’ cells multiple times a day to do count.63 As one prisoner
explained, “I come within six feet of nine guards every day. All three on the shift come in your
cell when they do count, and that happens three times a day. There is no way to avoid having them
come into your cell.” Ex. 16, Decl. 16 ¶ 9. Guards do not wear gloves, and only some of them wear
masks.64
97. Jail staff have not explained the concept of social distancing.65 As a result, some
prisoners did not know that they should stay six feet away from others—especially those with
symptoms of COVID-19.
98. Plaintiff Keith Seth learned about the social distancing guidelines for the first time
on the phone from his lawyer. On hearing this, Mr. Seth realized that he had been within a foot of
a sick prisoner earlier that same day:
“[Earlier today] the person in the cell next to me had to go to the medical unit because he was sneezing, shaking, and sweating. I was just talking to him yesterday, and when I was talking with him I was within a foot of him. I did not know that I was being unsafe in talking to him so closely because I have not been told by anybody to stay away from other inmates. The only information I received is to stay six feet away from the officer’s desk. I have no received no information about how to protect myself from the Coronavirus.”66 63 “Count” refers to the head count that jail guards perform to make sure that no prisoners are missing.
64 Ex. 20, Decl. 20 ¶ 18 (“Correctional officers come in to do arm band checks [as part of count] and many times don’t have their masks on.”); Ex. 5, John Doe No. 2 Decl. ¶ 10 (“Some of the correctional officers wear masks, some don’t. None of them wear gloves.”). See also Ex. 27, Decl. 27 ¶ 14 (“[W]e know that [the virus] can come in from them. They leave and go out into the world every day. They are putting us in jeopardy if they are not cautious.”). 65 Ex. 8, John Doe No. 5 Decl. ¶ 10 (“Other than the division of recreational time, no efforts [have] been made towards encouraging or ordering social distancing.”). 66 Ex. 1, Seth Decl. ¶ 9.
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99. The Jail’s limited attempts at social distancing measures are markedly careless. Although recreation time has been staggered in groups of 10, the same group of prisoners does not always take recreation together each day.
100. Thus, infected prisoners, who may be contagious for up to two weeks before exhibiting symptoms,67 can infect a new set of other prisoners at recreation each day, and then those prisoners can infect even more. See Ex. 30, Meyer Decl. ¶ 30 (noting that while staggered recreation can be an effective social distancing strategy, it is “not useful to prevent the spread of disease if recreation is staggered with different individuals each day (i.e. different groups of 10).”).
101. When prisoners show symptoms of COVID-19, Jail staff do not (as the CDC recommends) place them in medical isolation. See Ex. 36, CDC Guidance at 10 (“As soon as an individual shows symptoms of COVID-19, they . . . should be immediately placed under medical isolation in a separate environment from other individuals”).68
102. Instead, in late March and early April, when the COVID-19 outbreak at the jail began, jail guards and medical staff routinely disregarded prisoners’ COVID-19 symptoms.
103. Prisoners visited the medical unit with fevers, shortness of breath, coughing, chills, headaches, and fluid in the chest, and medical staff sent them back to their housing units with Claritin or Tylenol.69
67 See Ex. 32, Benninger Dec. ¶ 2(D). 68 See Ex. 30, Meyer Decl. ¶ 27 (“One of the most critical infection control measures in correctional settings is to accurately identify people who are ill and medically isolate them from the general population.”). 69 Ex. 19, Decl. 19 ¶ 5 (“Last week, I felt really bad for two or three days. I had body aches, a runny nose, and what felt like fluid in my chest. . . .Once in Medical, someone I think was a nurse took my temperature. It was 101 or 102. Despite this, I only remained in the medical unit for ten or 15 minutes. I was told to return to my cell and drink fluids. That was all.”); Ex. 17, Decl. 17 ¶ 4 (“Two days ago I had a headache and felt like I had a fever, and I was sneezing. I went to sick
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104. The CDC recommends that staff avoid “transporting [symptomatic] individual[s] through the facility.” Ex. 36, CDC at 10. Instead, these individuals should be placed in medical isolation70 and “refer[red] to healthcare staff for further evaluation.” Ex. 36, CDC at 10.
105. But Jail staff shuttled sick prisoners back and forth between the Medical Unit and their cells multiple times—including prisoners who later tested positive for COVID-19.
106. For example, one pretrial detainee, Declarant 9, who has “asthma, a prior history of bronchitis, and a seizure disease,” began to feel sick on Wednesday, March 25, 2020. Ex. 9, Decl. 9 ¶¶ 3–4. By the next day, he “was sweating profusely, vomiting, and [was] too weak to get out of [his] cell.” Id. ¶ 4.
107. He asked his cellmate to tell the jail guards that he needed medical attention. Guards responded that he was “playing” and would “be alright.” Id. So he waited eight hours for the next shift to begin.
108. After the shift change, the new jail guards were afraid to come near him because of his symptoms. They asked another inmate to put on a glove, enter Declarant 9’s cell, and touch his forehead. When the inmate showed the officer the glove, soaked in sweat, the officers sent Declarant 9 to sick call. Id. ¶ 5.
109. A nurse took Declarant 9’s temperature. It was 101.2 degrees. Declarant 9 told her about his symptoms and said he believed they were serious. The nurse told him he had “been [at
call. They gave me headache medicine and Claritin and sent me back to the unit. I asked to be tested for the virus, but they said they don’t have any tests.”). Ex. 21, Decl. 21 ¶ 5 (“Some people have asked for medication/treatment, medical exams, and have been told that what they have is not serious, or it’s a cold.”); see Ex. 30, Meyer Decl. ¶ 31. (“[P]risoners are given Claritin- a decongestant that is entirely useless for COVID-19.”). 70 “Medical isolation” requires moving a person to “a separate environment from other individuals,” and “keep[ing] the individual’s movement outside the medical isolation space to an absolute minimum.” Ex. 36, CDC at 15.
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the Jail] too long to catch the virus,” gave him Tylenol, and sent him back to his housing unit. Id. ¶ 6.
110. Over the following two days, Declarant 9 went back and forth between the medical unit and his housing unit four times. Each time he went to the Medical Unit, he had to pay $4. Id. ¶ 7.71
111. On Friday, April 3, Declarant 9 tested positive for COVID-19. 112. Other COVID-positive prisoners experienced similar treatment. Declarant 11, a pretrial detainee, first developed symptoms at the end of March with “headache, fever, chills, runny nose, and heavy sweating.” Ex. 11, Decl. 11 ¶ 4. 113. At a sick call on April 1, his temperature was 103 degrees. Declarant 11 was given Tylenol and a paper mask and returned to his housing unit. Id. ¶ 6. 114. Declarant 11 went back and forth between the Medical Unit and his housing unit three times. During one of his visits to medical, Declarant 11 mentioned that his cellmate had been in the Medical Unit for six days. When the staff realized that Declarant 11’s cellmate had tested positive for COVID-19, they tested Declarant 11 too. Id. ¶ 10. 115. He tested positive for COVID-19 on April 5. Id. ¶ 11. 116. Declarant 12, a pretrial detainee, began to feel sick on Thursday, March 26 with “chills, body aches, coughing, and fatigue.” Ex. 12, Decl. 12 ¶¶ 3–4. He visited the Medical Unit twice that day, and his temperature was measured at 100, and then 101 degrees. Id. Each time, the nurse sent him back to his cell. Id.
71 Prisoners request medical help by filling out a form for a “sick call.” Every “sick call” costs $4. Ex. 3, Burch Decl. ¶ 11 (“If an inmate puts in a sick call they have to pay money in order to go to the infirmary.”); Ex. 26, Decl. 26 ¶ 5 (“It costs $4 to go to a sick call. I can afford this, but not everyone in the jail can.”).
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117. The next day, Declarant 12 went to the Medical Unit again. His temperature was 104.7 degrees. Id. But the nurse sent Declarant 12 back to his cell. Id. ¶¶ 3-5. Ultimately, Declarant 12 went back and forth between his housing unit and the Medical Unit five times before he was transferred to the Medical Unit for COVID-19. Id. ¶ 3. Each time, Declarant 12 had to pay $4 for the sick call. Id.
118. When prisoners with symptoms of COVID-19 are sent back to their housing units from medical, they are not isolated, and other prisoners are not warned. As one prisoner described:
“In some cases, people on the unit have gone to sick call and been sent back, and then they go again and again, and we hear later on that they had the coronavirus. The same people who later left and I heard they had the coronavirus, we had been playing spades with them at the tables just days before. I have told my family that I love them because I feel sure I am going to get the virus in here.”72 119. The CDC also provides that prisoners with symptoms of COVID-19 should be required to wear face masks whenever they are outside of isolation. Ex. 36, CDC at 15.73 A facility should “[p]rovide clean masks as needed,” and “[m]asks should be changed at least daily, and when visibly soiled or wet.” Ex. 36, CDC at 15. 120. This does not happen at the Prince George’s County Jail. Jail staff gave each prisoner one thin, single-use paper mask on April 6, 2020. Ex. 14, Decl. 14 ¶ 5. The Jail does not provide replacements—including to symptomatic prisoners who remain in general population.
72 Ex. 17, Decl. 17 ¶ 7. 73 See Ex. 32, Benninger Decl.¶ 2(E) (“CDC has recommended wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain, especially in areas of significant community-based transmission. . . .Cloth face masks should be laundered before each daily use.”)
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Before this, symptomatic prisoners who remained in general population did not have masks at all.74
121. In the Medical Unit, the jail provides a mask to some prisoners with suspected or confirmed cases of COVID-19, but it does not provide them with replacements. Ex. 10, Decl. 10 ¶ 17 (“All we have are little worn-out paper face masks. I’ve had the same facemask since [the previous Friday, eight days prior to the declaration], and we’re all breathing the same air.”).
122. In early April, medical staff began taking every prisoner’s temperature twice a day. But the checks are not conducted in every housing unit. And as implemented, the checks are further opportunities for infection: the temperature reader is not cleaned between uses, Ex. 24, Decl. 24 ¶ 8, and the medical staff do not change their gloves, Ex. 25, Decl. 25 ¶12.
123. The checks have also been conducted without regard to social distancing guidelines. When they began, prisoners lined up back to front, with no space between them, to have their temperatures taken. Ex. 10, Decl. 10 ¶ 5. In recent days, prisoners have instead been asked to put their heads through the slot in the cell door.
124. At these temperature checks, some prisoners with fevers are sent to the Medical Unit. Some are returned to their housing unit that same night. Ex. 10, Decl. 10 ¶ 10.
125. Prisoners with symptoms of COVID-19 who do not have fevers are not taken to medical.75
74 Ex. 5, John Doe No. 2 ¶6 (“The masks that were provided are the disposable paper kind, but we are not being given replacement masks, we have to continue to use the same mask without any way to sanitize the mask.”); Ex. 8, John Doe No. 5 Decl. ¶ 6 (“Usually four to six people go to Medical Unit per day—and not always the same people. When people return from the Medical Unit, their masks may be on or off. There is no consistency.”). 75 Ex. 18, Decl. 18 ¶5 (“[I]f detainees only display symptoms without a high temperature, they remain on the unit in general population.”).
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126. But even some who do have fevers are told to remain in general housing. For example, Declarant 10 is a prisoner with high blood pressure and seizures. Ex. 10, Decl. 10 ¶ 3. Even when Declarant 10 had COVID-19 symptoms and a fever, jail staff did not take him to the Medical Unit:
“[O]n Friday, April 3, I started to have symptoms. I could feel aches in my spine and kidneys, and my body had fevers and chills. One minute I would feel like I’m freezing, and the next I’m heating up and my forehead is sweating. I also had diarrhea. And when I would drink liquids, my eye sockets would hurt. I started feeling shortness of breath. My nose was running, and I had a terrible headache. . . . At lunchtime on April 3, when they lined us up to take our temperatures, mine was 100 degrees. I told the nurse I wasn’t feeling right. But she told me, “you’ll be alright,” and left. At around 5:00 p.m. or 6:00 p.m., I started to have real difficulty breathing and my body was really aching and causing me a lot of pain. They told me to hold on and wait until the medical staff returned at 9:00 p.m. So I had no choice but to wait. That evening, when the medical staff came back again to take everyone’s temperature, mine was 104 degrees. They made me step to one side, along with four other guys, and then we all went to the medical unit around 11:00 p.m. They kept three of us, and sent two back to the housing unit.”76
127. Declarant 10 tested positive for Covid-19. Ex. 10, Decl. 10 ¶ 2. 128. Once a prisoner has tested positive for COVID-19, the CDC recommends careful attention to that prisoner’s contacts. Every person who has been within six feet of that prisoner should be placed in a 14-day quarantine. Ex. 36, CDC at 14. 129. However, jail staff do not affirmatively quarantine, isolate, or even inform prisoners when a person who lives within six feet of them has COVID-19 symptoms or even tests positive for the virus—even when that person is the prisoner’s cellmate.
76 Ex. 10, Decl. 10 ¶¶ 9–10.
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130. Nor do they disinfect cells where symptomatic or COVID-positive prisoners have lived.77
131. Indeed, jail staff—including even medical staff—do not appear to know which prisoners have tested positive for the virus.78
E. The Jail’s Limited Containment Methods Are Ineffective and Counterproductive
132. Instead of implementing the CDC’s recommendations to prevent COVID-19, at
the beginning of April, the Jail implemented a universal, preemptive lockdown of all prisoners.
133. Under the lockdown policy, prisoners must remain in their cells for 23 hours per
day.
134. Prisoner have one hour (which may be at 1:30 a.m. or some other odd hour) of
“recreation,” which is prisoners’ only chance to shower, go outside, or use the phones to call their attorneys79 or their families (if they are awake).80
135. Some jail guards also require prisoners to use that hour to clean their cells.
77 Ex. 7, John Doe No. 4 Decl. ¶6 (“My cell mate went to medical at 8 o’clock last night and he hasn’t come back. He was not feeling well he had a headache and stomach ache. When my cellie left last night, the staff did not do anything to disinfect my cell. I am waiting to get rec-time because that is the only time I can get cleaning supplies.”); id. (“I have seen 3 inmates leave on this unit so far, and not come back. … One was across the hall 3 or 4 days ago, he went to medical, his stuff is still in his cell. The guy across the way—his cell was within 5 feet of our cell.”). 78 Ex. 11, Decl. 11 ¶10 (“I told them that my cellmate had been in the medical unit for six days. That’s when they looked into things and realized that my cellmate had tested positive, so they had to test me too.”). 79 The prisoners’ limited time for phone use has also hindered contact with their attorneys. See Ex. 29, Glenn Decl. ¶¶ 16–22. This is particularly challenging given the pandemic-related delays in state court criminal cases. See generally Ex. 28, Schneller Decl. 80 Ex. 7, John Doe No. 4 Decl. ¶ 14 (“You can’t really talk to your family at 1 o’clock in the morning, my kids are asleep.).
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136. The lockdown appears to have no end date short of the pandemic’s end.
137. The CDC does not recommend preemptive lockdowns of all prisoners.
138. Instead, it recommends that correctional facilities achieve social distancing by, for
example, “[r]earranging seating in the dining hall so that there is more space between individuals,”
and “[c]onsider[ing] alternatives to existing group activities, in outdoor areas or other areas where
individuals can spread out.” Ex. 36, CDC at 11.
139. And it only recommends something akin to lockdown—that housing units
“quarantine in place”—when there is “contact with a case from the same housing unit” and that all
quarantines—including this sort—last for just 14 days. Ex. 36, CDC at 19.
140. Other public health experts recommend the same: time-limited lockdowns used only as necessary for quarantine and contact tracing.81
141. Experts also warn that preemptive lockdowns like those at the Jail are ineffective
and counterproductive in preventing the spread of COVID-19.
142. Indeed, on lockdown, opportunities for infection abound.
81 Ex. 30, Meyer Decl. ¶ 27 (“Lockdown can be important from a public health standpoint to enable social distancing during a pandemic but should be used only as a last resort and in a timelimited way (CDC recommends quarantines last no longer than 14 days) that is communicated clearly to the residents”); David Cloud, Dallas Augustine, and Brie Williams, The Ethical Use of Medical Isolation—Not Solitary Confinement—to Reduce COVID-19 Transmission in Correctional Settings, Amend at 3 (Apr. 7, 2020), available at https://amend.us/wpcontent/uploads/2020/04/Medical-Isolation-vs-Solitary_Amend.pdf [hereinafter “Medical Isolation—Not Solitary”] (“Corrections officials should only require people on an entire housing unit to stay in their cells (“Lockdown”) if medical professionals determine a symptomatic persons resides or works on that unit or contract tracing flags a confirmed or suspected case. In this event, time-limitations must be clearly communicated to residents and staff.”); Ex. 34, Haney Decl. ¶ 29 (“[T]he Jail should institute … lockdowns only where medically necessary to resolve discrete issues, such as sanitizing dorms or contact tracing of an infected prisoner. If the [Jail] resorts to these lockdowns, it should do so in a reasonably time-limited manner and communicate that timelimit to the prisoners who are affected.”).
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143. Most prisoners live with cellmates in hot, poorly ventilated cells.82 Even prisoners in different cells are less than six feet apart.
144. Thus, the lockdown policy—especially in combination with the Jail’s failure to medically isolate those with symptoms of COVID-19—traps prisoners in close proximity to people who may be sick. See Ex. 36, CDC at 19 (warning that quarantining prisoners together “could transmit COVID-19 from those who are infected to those who are uninfected.”); Ex. 30, Meyer Decl. ¶ 30 (stating that sustained lockdowns are “particularly problematic when inmates are locked down in poorly ventilated spaces that are shared closely with others, which may contribute to disease transmission from people who are infected with COVID-19 but have not yet reported symptoms.”).
145. For example, Plaintiff John Doe No. 2, who has severe asthma for which he has been hospitalized, is locked down with his cellmate, who has lost his sense of smell and taste (a symptom of COVID-19). Ex. 4, John Doe No. 2 Decl. ¶ 22; see also Ex. 7, John Doe No. 4 Decl. ¶ 14 ([I]t’s really bad when you can’t get come out of a cell for 23 hours I’m really scared now because my cellie has been sick.”); Ex. 17, Decl. 17 ¶ 6 (“My cellmate has been coughing and sneezing. They have us locked in 23 hours a day with 1 hour of recreation time. There is no way for my cellmate and I to distance ourselves from each other.”).
146. The Jail’s preemptive lockdown is counter-productive in other ways as well. Because prisoners’ one hour of out-of-cell time is their only chance to call their attorneys and families, they congregate by the phones (which are close together and rarely, if ever, cleaned).83
82 Ex. 5, John Doe No. 2 Decl. ¶12 (“It’s very hot in the cells. For the 23 hours we are in our cells a day, the cell door is kept closed. There is no noticeable air circulation, and the rest of the unit is very hot as well. The staff keeps the door to the recreation yard propped open.”); Ex. 1, Seth Decl. ¶ 94 (I am not getting good air circulation in the cell[.]”). 83 Ex. 30, Meyer Decl. ¶ 30 (observing that under the Jail’s preemptive lockdown policy, “[w]ith only 1 hour per day to use phones, it may be hard to enforce social distancing since prisoners need
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147. The lockdown also “decreases the interactions that prisoners have with correctional
and healthcare staff members, compromising the latter’s ability to identify symptoms,” further
ensuring that infected prisoners will remain in general population where they can spread the virus. Ex. 34, Haney Decl. ¶ 30.84
F. The Jail’s Conditions Increase the Risk of Severe Illness and Death 148. In addition to accelerating the COVID-19 outbreak, the Jail has also increased the
risk that those who are infected will suffer serious illness, permanent physical damage, and death.
149. Sick prisoners in general population lack access to medical care.
150. “Sick call” (a request for medical attention) costs $4, and some cannot afford to
pay. Some housing units have run out of sick call slips entirely. Ex. 19, Decl. 19 ¶ 6.
151. This prevents even prisoners who are medically vulnerable and have symptoms of
COVID-19 from seeking care.
152. For example, Plaintiff Seth explained:
“For about a week or two I have been experiencing shortage of breath and coughing. . . . About four days ago, I asked to get into the medical unit but they make you pay $4 for the form and I don’t have money for that. I am losing my sense of taste, I have hot chips that I eat and do not taste the hotness. It feels like my taste buds are numb. I have had diarrhea for about a week. . . . About two days ago I decided I should probably go to the medical unit. But I decided not to ask because I do not have the money for the form.”85
to congregate to use this precious resource”); Ex. 34, Haney Decl. ¶ 30 (“During th[e] limited one hour of out-of-cell time [under the Jail’s preemptive lockdown policy], prisoners crowd together to use the limited shared resources. . . . As a result, they are unable to maintain the recommended six feet of social distancing.”). 84 See Medical Isolation—Not Solitary at 2 (warning that “preemptively placing entire units on ‘lockdown’ for indefinite amounts of time” will likely mean that “interactions with correctional staff an healthcare staff often become less frequent and people with symptoms may go undetected”). 85 Ex. 1, Seth Decl. ¶¶ 9–11.
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153. Mr. Seth was also deterred from seeking care because so many prisoners with symptoms of COVID-19 were unable to get it at the Jail. He explains: “I know one guy who had a fever and they kept him for three days and sent him back. Another guy I know lost his sense of taste and his stomach hurt, but medical sent him back.” Ex. 1, Seth Decl. ¶ 11.
154. Moreover, as Mr. Seth’s experience demonstrates, the Jail has no plan for specially protecting medically vulnerable prisoners from COVID-19 or monitoring them if they become symptomatic.
155. Many prisoners with symptoms of COVID-19 cannot get medical attention for other reasons.
156. Jail staff has told prisoners that medical care is limited to emergency cases.86 157. Some prisoners who have made sick calls were seen by medical staff weeks later or not at all. For example, John Doe No. 2, who has previously been hospitalized for his severe asthma, told jail staff that he has asthma, was spitting up brown mucus, and was having trouble breathing. He was not taken to the medical unit for two weeks. Ex. 5, John Doe No. 2 ¶5; see also Ex. 19, Decl. 19 ¶ 6 (stating on April 9, 2020: “I first put in for sick call on March 23rd and I haven’t heard anything.”). 158. People who need medical care for anything other than COVID-19 generally cannot get it. Jail staff has told prisoners that they cannot receive medical services because the medical unit is locked down. Ex. 2, Smith Decl. ¶ 15. 159. Prisoners who made a sick call that was not about COVID-19 were told by corrections officers “that if it’s nothing relating to Corona not to write to medical.” Id.
86 Ex. 26, Decl. 26 ¶¶ 6–7 (“I was told my case was not serious enough to have additional care, and that the Medical Unit is only seeing emergency cases.”); Ex. 19, Decl. 19 ¶ 6 (“The guards have told me that they’re not bringing anyone down unless it’s an emergency.”).
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160. Prisoners who had lived in the medical unit due to chronic medical concerns have been transferred out.87
161. And many prisoners have been unable to obtain or change their medications— including prisoners with pre-existing conditions like asthma, which make them especially vulnerable to serious illness and death if they do become infected with COVID-19.88
162. Prisoners’ mental health is also at great risk. 163. Dr. Craig Haney, a psychologist and expert on prison isolation,89 has concluded that the punitive isolation methods that dominate the Jail’s approach to COVID-19 “greatly increase the psychological stress under which prisoners live, potentially leading to mental and physical deterioration, interpersonal conflicts, and self-harm and suicidality.” Ex. 34, Haney Decl. ¶ 20.90 164. As Dr. Haney explains, “The Prince George’s County Jail lockdown units are now being used in ways that are essentially identical to the solitary confinement-type housing that has
87 Ex. 6, John Doe No. 3 Decl. ¶ 4 (“When I first entered the Detention Center, I was placed in the Medical Unit. I have numerous medical issues, including neck and back issues, I walk with a cane, and I am currently having kidney issues, including blood in my urine. I was moved from the Medical Unit about halfway through my thirty-day incarceration, and I do not know why, but it may be because it was getting more crowded in the Medical Unit.”). 88 Ex. 2, Smith Decl. ¶ 15 (“I take medication and they haven’t consulted me to change the medication because I don’t like the side effects it gives me.”). 89 See Ex. 35, Haney Curriculum Vitae. 90 See also Medical Isolation—Not Solitary at 3 (“Research shows that keeping people socially isolated in a closed cell without a meaningful opportunity to communicate with family, friends, and loved ones or to participate in exercise, education, and rehabilitative programming (solitary confinement) causes immense, and often irreparable, psychological harm.”); Ex. 32, Benninger Decl. ¶ 3(J) (“I have concern that there has not been sufficient acknowledgement of or attention to the inmates’ mental health under the stressors of pandemic and solitary confinement.”).
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been shown to place prisoners at significant risk of grave harm (including damage that is permanent, even fatal).” Id. ¶ 20.91
165. Moreover, the Jail has discontinued mental health services.92 This places prisoners with mental illness who are isolated “at grave risk of decompensation.” Id. ¶ 24.93
166. These policies also threaten physical harm; “the extraordinary stress of social isolation under these especially onerous conditions” may “depress prisoners’ immune systems and render them even more vulnerable to the COVID-19 virus, and less able to combat it if and when they contract it.” Ex. 36, Haney Decl. ¶ 26; see also Ex. 30, Meyer Decl. ¶ 36 (“Failure to provide adequate mental health care . . . as appears to be the case at the Prince George’s County Jail, will result in poor health outcomes.).
91 Ex. 34, Haney Decl. ¶ 20 (“The fact that prisoners are double-celled during these lockdowns [in the general housing units] does not mitigate the negative effects of their essentially around-theclock in-cell confinement. In fact, double-celling may exacerbate these effects because of the interpersonal tensions and stressors that such unavoidably close around-the-clock contact generates.”). 92 Ex. 30, Meyer Decl. ¶ 36 (“People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention.”). 93 Even in less extreme forms of isolation than those imposed at the Jail, the CDC Guidance recommends efforts to mitigate the mental health consequences of any necessary medical isolation. See, e.g., Ex. 36, CDC Guidance at 12 (“[I]f group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.”); id. at 13 (“Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health.”); id. at 14–15 (recommending that, since “visitation is important to maintain mental health,” 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.”). The Jail has done none of this.
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G. The Jail Has Failed to Effectively Manage Positive Cases of COVID-19 167. In addition to the Jail’s failure to implement basic, CDC-recommended protocols
to prevent the spread of the virus, the Jail has also failed to provide adequate care to prisoners who
have tested positive for the virus.
168. Prisoners who are transferred to the Medical Unit to be tested for COVID-19 are
placed in medical isolation cells. The cells are filthy. The walls are covered in mucus, feces, and
blood.94
169. Prisoners are terrified of being placed there, and they downplay their COVID-19
symptoms to avoid it.95
170. Prisoners must remain in these cells until the results of their COVID-19 tests come
back. This can take up to five days. During this time, prisoners have no access to basic personal
94 Ex. 11, Decl. 11 ¶ 18 (“The isolation cells have mucus, feces, blood, old food, urine, spit, everything you can name on the walls. . . . Someone should come and take pictures of these cells, they’re disgusting.”); Ex. 10, Decl. 10 ¶ 11 (“The isolation cell they put me in has mucus and blood dried all around the walls, 360 degrees. I wish you could come and take pictures of it. When I say mucus and blood on the walls, I mean it – thick yellow, some green, some yellow with red blood in it. I can also tell someone was bleeding in that isolation cell, because there is blood all along the floor under the bed.”); Ex. 12, Decl. 12 ¶ 7 (“I was put in isolation cell number [redacted], which was not clean. It has feces and blood on the walls. The sink was stopped up too, so I couldn’t really use the water.”).
95 Ex. 12, Decl. 12 ¶ 14 (“I think a lot of guys are having symptoms, but are fearful of being stuck in the medical unit on total lock-down. They’re more afraid of how they’ll be treated in the medical unit than they are of their symptoms, so they downplay things so they can go back to the housing unit where they have access to showers and phones and stuff like that.”); Ex. 10, Decl. 10 ¶ 25 “Some people are trying to hide their symptoms, because they don’t want to be punished in the medical unit. … So a lot of people are just trying to tough it out, but it’s spreading it. My cellmate was sneezing and coughing when I left him. I’ve seen people in the kitchen unit sneezing as they prepare food.”); Ex. 9, Decl. 9 ¶ 21 (“Some guys on the unit seem to have the virus, but they are scared to get tested, because they don’t want to get stuck in the medical unit like I am. They’d rather just let their bodies fight it off.”); Ex. 17, Decl. 17 ¶ 8 (“A lot of people in the unit who are coughing and sneezing have said they are trying to suppress it because they don’t want to go to the medical unit because of the way people there are being treated.”).
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hygiene products: they have no soap and no toothbrush. They are not allowed to shower. They cannot change their clothes, even as they are soaked in sweat.96
171. They have no access to phones, no reading material, and no mental health services. 172. A nurse visits each prisoner three times per day to take his temperature and deliver medication and food trays. But the prisoners there cannot contact them (or anyone else) on their own, even in a medical emergency. Ex. 12, Decl. 12 ¶ 9 (“In the isolation cell, there was no way for us to notify someone if we were having an emergency, except to get up and bang on the door and hope that someone could hear you.”). 173. Medically vulnerable prisoners suspected of having COVID-19 are held in the same isolation cells in the same abject conditions. There does not appear to be any plan for their care in light of the particular dangers they face if infected. 174. A prisoner who tests positive for COVID-19 is transferred from the isolation cell to a 10-man cell for COVID-positive prisoners in the medical unit. Starting on April 11, 2020, the Jail also began using isolation units in Housing Unit 6 (H-6). There is no special location, plan, or care for medically vulnerable prisoners who have COVID-19.
96 Ex. 11, Decl. 11 ¶ 12 (“I was still wearing those same clothes I was sweating in, for five days. They didn’t give me clean clothes until April 6, and they haven’t allowed any of us to take a shower.”); Ex. 12, Decl. 12 ¶ 8 (“I was in the isolation cell for five days before I was even given a wash cloth or a toothbrush.”).
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175. The 10-man cell is dirty. For fear of contracting COVID-19, jail guards will not remove the trash bags, which are filled with vomit and spit.97 The floor is covered with tissues, hair balls, spiders, and bugs.98
176. Jail staff will not enter the room to fill the water cooler. The prisoners are told that if they are thirsty, they can drink from the sink.99 When jail guards do bring something to the prisoners in the cell, they throw it through the door.100
177. Prisoners in the 10-person cell also lack basic hygiene products. Many do not have
soap or have to share a single bar with others. Some have not had toothbrushes or toothpaste for
over a week. They are still not allowed to shower. All of the sick men share a single, mildewed
97 Ex. 10, Decl. 10 ¶ 23 (“There’s also a pile of trash building up inside of our unit, which they won’t take away. There are fumes from guys getting sick in those trash bags, there’s spit on top of it and in it, and the trash is just closed in here with us.”); Ex. 9, Decl. 9 ¶ 19 (“[O]ur trash is piled up in bags that they won’t take away since we’ve been over here. The COs refuse to get close to us and they say that anything that goes in, can’t come back out.”) 98 Ex. 11, Decl. 11 ¶ 19 (“There’s spiders and other bugs. It’s nasty. There’s piles of dust under the beds. It hasn’t been cleaned since god knows when.”); Ex. 9, Decl. 9 ¶ 19 (“There’s lint balls and tissues and paper towels on the floor. There are spiders and centipedes, one guy just killed another spider while I’m talking to you on the phone.”); Ex. 10, Decl. 10 ¶ 17 (“[T]here’s dust and hair balls all around the floor in our cell.”). 99 Ex. 11, Decl. 11 ¶ 20 (“It’s supposed to be a water cooler for us, but it’s empty. They’re scared to come and refill it, they’re scared to even come and get the trash.”); Ex. 9, Decl. 9 ¶20 (“There’s an orange water cooler in here with us, but it’s empty because the COs refuse to fill it with ice and clean water.”). 100 Ex. 10, Decl. 10 ¶ 14 “When we really need something, the staff will open the door, and throw stuff at us through the door. It makes me feel like an animal.”; Ex. 11, Decl. 11 ¶ 21 (“There’s a pile of trash right now in the ten-man cell right next to the empty water cooler. It’s supposed to be a water cooler for us, but it’s empty. They’re scared to come and refill it, they’re scared to even come and get the trash. They treat us like animals, like they’re afraid to come near us. And anything they do give us, they throw to us like we’re animals, like we’re nothing.”).
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sink. Prisoners may go five or six days without being able to change their clothes or underwear.
101 There are no mental health services.
178. COVID-positive prisoners who are housed on H-6 are held alone in cells. Ex. 11,
Decl. 11 ¶ 35. They have no access to phones and nothing to read. They too have no mental health
services.
179. There is no jail guard on H-6 with the prisoners. Ex. 9, Decl. 9 ¶ 6. The only time
the prisoners there see anyone is when a guard comes to deliver their food. A nurse comes at the
same time.
180. The cells in H6 have call buttons that prisoners can use to talk to the corrections
officer in the unit’s command center bubble. Ex. 9, Decl. 9 ¶ 31.
181. Sometimes, either the call button does not work or no one answers it. One prisoner
in H-6 heard another kicking his door because the guards would not answer his call button. No
101 Ex. 11, Decl. 11 ¶ 20 (“They gave me one bar of soap, but not everyone in here with me even has a bar of soap. Some guys don’t have toothbrushes or toothpaste either, some say they haven’t had a toothbrush or toothpaste in a week.”); id. (“We ask for showers, but they say we can’t take a shower. They tell us to wash in the sink, but there’s just one sink that all nine of us have to use.”); id. (“We’ve got the same clothes on for five or six days, the same underwear for five or six days. I’m still wearing the same drawers since Thursday, and they look nasty. They’re turning black.”); Ex. 10, Decl. 10 ¶ 15 (“They won’t let us shower, either. We have only one working sink, and I’m sharing it with everyone in here. There are currently ten men in this cell, the maximum. We’ve all got to take turns washing up in that one sink. Although they gave me a bar of soap on April 6, I didn’t get a toothbrush or toothpaste until April 9. I requested it and requested it, but I didn’t get it. I didn’t have any toothbrush or toothpaste between April 3 and April 9.”); Ex. 9, Decl. 9 ¶ 17 (“They tell us to be clean with soap and hygiene, but they don’t give us any hygiene products. It took four or five days before they gave me a hygiene kit in the medical unit. Before then, I had no soap, toothbrush, toothpaste, or deodorant to keep myself clean. I asked them many times, but the COs would play with us and tell us we didn’t need a hygiene kit. Finally the nurse went to the Sergeant and told him what was going on, and the Sergeant got us our hygiene kits.”); id. ¶ 18 (“I also have not been allowed to use the shower since being moved to the medical unit. I have not had a shower in nearly two weeks, not since Thursday, March 26. Instead, I have been forced to wash myself as best I can in a dirty, mildewed sink. In the isolation cell, I had a bar of soap for myself, but now in the ten-man cell I have to share the sink and bar of soap with the other men in here.”); Ex. 12, Decl. 12 ¶ 12 “I haven’t had a shower since Thursday, March 26.”).
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jail staff checked on the other prisoner. He does not know what happened to the man who was kicking his door. Id.
182. The same prisoner worries that even if the button works, in a medical emergency he might not be able to press it. He explained, “I have a seizure disease. If I were to have a seizure, I wouldn’t be able to push the button. No COs are in the housing unit, so no one would hear what was going on. I’m afraid that if I have a seizure in here, no one will hear it and I will die. . . . They’re not really doing anything to protect any of us in here.” Ex. 9, Decl. 9 ¶¶ 31–32.
H. The Jail Maintains an Overdetention Policy for Prisoners with COVID-19 183. Although the Jail has failed to control the outbreak within its walls by not following clear public health guidance, it has resorted to unlawful means to control the virus’s spread outside of them: the Jail refuses to release COVID-positive prisoners who have paid bail (or are otherwise legally entitled to release) until it deems them non-contagious. 184. Accordingly, one prisoner who paid his bond on April 3, 2020—but tested positive for COVID-19 on the same day—was illegally imprisoned in the cohorted isolation cell in the Jail for fourteen days. Ex. 29, Glenn Decl. ¶ 24. 185. He was not released until April 16, 2020. Id. 186. Had he been released when he paid his bond on April 3rd, he would have sought treatment for COVID-19 at a local hospital. Id. I. The Jail’s Continued Use of Indefinite Lockdown 187. Since Plaintiffs filed this Complaint on April 21, 2020, the indefinite lockdown has continued at the Jail. This is the fourth month of the lockdown. 188. Detainees at the Jail continue to be locked down for 22 or, more commonly, 23 hours per days in their cells.
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189. In mid-to-late June and early July, more than 80 detainees in ten different housing units reported that they receive only one to two hours out of their cells each day.
190. Of those, more than 65 reported that they receive only one hour out of their cells and are locked in their cells for 23 hours each day. A smaller portion reported that they receive one to two hours per day, depending on the corrections officers or how crowded the unit is, and a small portion reported that they receive two hours per day.
191. Of the prisoners who receive two hours out of their cells, many report that the second hour began in the last week of June. They receive the second hour at a different time from the first (potentially in the middle of the night).
192. However, like detainees who receive only one hour of out-of-cell time, those who receive a second hour out of their cells often receive it inconsistently.
193. Out-of-cell time may be offered in the middle of the night, at 1 or 2 in the morning. For those who receive only one hour of out-of-cell time, this means that it is impossible to reach counsel or loved ones that day.
194. At times, prisoners go more than a day without any out-of-cell time at all—48 or 72 hours might pass without it. And in some units, detainees are routinely given less than an hour of time out of their cells. In H6, where the Jail has housed COVID-positive prisoners, an hour of out-of-cell time has been offered only once every other day.
195. The cells in which detainees in general housing spent 22 to 23 hours per day are approximately 70 square feet.
196. A prisoner’s hour (or maybe two) of out-of-cell is his only opportunity to use the phones to call family or his attorney, to shower, to access cleaning products for his cell, and to spend any time outside.
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197. During prisoners’ out-of-cell time, prisoners crowd by the phones, since it is their only opportunity to contact family or counsel.
198. In most units, there are not enough working phones for everyone to use one, and so prisoners rush or even run to the phones to get to them. While using the phones, prisoners are regularly sitting shoulder to shoulder, inches apart. As one prisoner described it, “The phone area is crowded with bodies.”
199. Although many would prefer to practice social distancing, they do not because their out-of-cell time is their only opportunity to use the phones at all. This amplifies their anxiety about infection, but detainees feel that they have no choice but use the phones in their rare opportunities to do so, despite the risk that comes with it.
200. The small outdoor recreation area—a very small concrete square with concrete walls and no ceiling—is not always available to prisoners, even during out-of-cell time (and if it were, prisoners often have no time in that hour to use it between using the phones, showering, and accessing cleaning supplies and cleaning their cells). Often, they cannot access it for days at a time. Even so, given its size, it would be impossible for all (or even many) of the 10 detainees the Jail allows out of their cells at any given time to spend time there during their out-of-cell time and also maintain social distancing.
201. The lockdown policy includes no accommodations for detainees with serious mental health conditions. The Jail detains numerous people who have mental illnesses, including psychotic illness, depression, anxiety, post-traumatic stress disorder, and bipolar disorder. Some detainees are currently part of a special mental health docket for the court, and some are awaiting competency evaluations or have been deemed incompetent. They too are locked in their cells for 22 or 23 hours per day.
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202. Mental health services are limited or nonexistent. Most detainees have received no mental health treatment at all.
203. Of the detainees who have pre-existing mental health conditions that require medication, the vast majority report that they receive the medication at the front of their cells and may be asked whether the medication is working, but they receive no other mental health services, such as confidential therapeutic services.102
204. Moreover, the Jail does not—and apparently has no plan to—assess or otherwise check on detainees to determine whether they are experiencing the psychological and physiological consequences of solitary confinement, including whether a detainee is at risk of (or already is) decompensating.
205. Access to reading materials is limited or non-existent. Many detainees cannot access any reading materials at all.
206. In the units where reading material is available, most share a single newspaper for all prisoners in the unit and may have a small number of books that were taken from the Jail’s library before the pandemic began (but have not been changed out since). Detainees often beg corrections officers for reading materials—but receive them only when the officer decides to oblige. Detainees do not have access to the law library. And some are permitted reading materials only during their out-of-cell time
207. For the exclusively Spanish-speaking detainees at the Jail, even where books are occasionally available, they cannot read them because the books are in English.
102 The Fourth Circuit recently found a substantial risk of serious harm under the Eighth Amendment where detainees under a 23-24 hour lockdown policy were visited by case counselors daily and mental health professionals once per week. See Porter v. Clarke, 923 F.3d 348, 354 (4th Cir. 2019).
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208. While in their cells, prisoners are given no audio players, television, tablets, or other materials for entertainment or stimulation.
209. Because of this, prisoners locked in their cells often have nothing but their thoughts. Even for solitary confinement policies, this deprivation is particularly stark.103
210. Prisoners’ social contact is limited to a cellmate (if they have one, which many do not), and very brief, front-of-cell checks a couple of times a day. Other than this, they are alone.104
211. The lockdown’s duration remains indefinite. 212. This indefinite timeline is particularly daunting because most trials have been continued because of the pandemic; as a result, prisoners are spending longer terms in the Jail. 213. Detainees are suffering the lockdown’s effects. Many are increasingly anxious, depressed, and suicidal. Some simply report that they feel like they are going crazy. 214. These effects are amplified by the restrictions in place during the pandemic, such as the cessation of visitation, the continuance of their trials and other court dates (resulting in more time spent detained pre-trial), greatly reduced access to counsel, and their limited ability to contact their family members by phone—which is particularly stressful as many of detainees’ loved ones are suffering the economic consequences of the pandemic or have actually been infected, and all are at risk of infection.
103 See Porter, 923 F.3d at 353-54 (4th Cir. 2019) (finding that solitary confinement policy created a substantial risk of serious harm where prisoners were locked down for 23-24 hours per day but, while in their cells, prisoners could keep a television and compact disc player in their cells, could borrow books from the library to request, and could request and use wireless telephones any day of the week between 8 am and 9:30 pm). 104 See Porter, 923 F.3d at 353-54 (4th Cir. 2019) (noting, in assessing solitary confinement conditions, that contact with correctional staff was “limited” where prisoners under solitary confinement were given security checks by corrections officers every thirty minutes, had twice daily visits from medical staff and nurses, daily visits with a case counselor, and a weekly visits from a mental health professional).
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215. Lockdown’s psychological effects are also exacerbated in these circumstances given the baseline increase in anxiety prisoners have about the pandemic, including the fear that they will die at the Jail without being able to say goodbye to their families.
216. In many cases, the lockdown may have the effect of prolonging prisoners’ imprisonment at the Jail. For example, many detainees have been authorized for release by a court, but only if they comply with their mental health medications. Placing these detainees under conditions that routinely result in severe psychological symptoms (particularly while failing to provide appropriate mental health treatment) makes compliance—and thus release—less likely. And as a general matter, detainees’ reduced access to their attorneys makes it more challenge to press their cases in ways that could lead to release, such as bond reconsideration motions. See Rettamel Decl. ¶ 6 (Doc. 44-1 at 123).
217. A robust body of empirical evidence sets forth the psychological and physical harms that frequently result from solitary confinement conditions like the lockdown at the Jail, in which prisoners are locked down for 22 to 23 hours per day.
218. This scientific evidence has been repeatedly credited by federal courts, including the Fourth Circuit. See Porter v. Clarke, 923 F. 3d 348, 355-57 (4th Cir. 2019) (describing this evidence and multiple court’ recognition of it, and relying on it to find that a solitary confinement policy imposed an objective risk of serious harm under the Eighth Amendment).
219. Specifically, scientific research documents that solitary confinement conditions like those at the Jail under lockdown consistently result in serious psychological and physiological harms. See Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique, 47 Crime & Justice 365, 367-68, 370-75 (2018) (collecting studies); Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325, 335-38 (2006).
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220. As Dr. Craig Haney105 explains, the lockdown conditions at the Jail “greatly increase the psychological stress under which prisoners live, potentially leading to mental and physical deterioration, interpersonal conflicts, and self-harm and suicidality.” Haney Decl. ¶ 20 (Doc. 2-1 at 209).
221. Psychological injuries may include cognitive dysfunction, paranoia, panic, severe depression, hallucination, memory loss, insomnia, and stimuli hypersensitivity. See Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325, 335-36, 348, 370-71 (2006).
222. Prisoners in solitary confinement also frequently engage in life threatening behavior, such as self-mutilation and suicidality. Id. at 349; see also Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences: Hearing Before the Subcomm. on Constitution, Civil Rights & Human Rights of the S. Comm. on the Judiciary, 112th Cong. 72, 80-81 (2012) (statement of Craig Haney).
223. These effects are particularly severe for prisoners with pre-existing mental health conditions, who “are particularly likely to decompensate, suffer worsening depression, and even engage in self-harming and suicidal behavior in response to social isolation.” Haney Decl. ¶ 23 (Doc. 2-1 at 209).
224. Moreover, because they are denied appropriate mental health care while on lockdown, including confidential treatment, psychologically vulnerable prisoners in particular are “at grave risk of decompensation.” Haney Decl. ¶ 24 (Doc. 2-1 at 209).
105 Dr. Haney’s research on solitary confinement has been cited by numerous federal courts, including, recently, the Fourth Circuit, see Porter v. Clarke, 923 F.3d 348, 356 (4th Cir. 2019), as amended (May 6, 2019).
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225. Physiological injuries also consistently result from solitary confinement conditions like those at the Jail. These may include decreased inflammatory control, a decline in neural activity, hypertension, heart palpitations, gastrointestinal disorders, severe insomnia, and dementia. Elizabeth Bennion, Banning the Bing: Why Extreme Solitary Confinement Is Cruel and Far Too Usual Punishment, 90 IND. L.J. 741, 762 (2015); Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, 34 Crime & Just. 441, 488-90 (2006).
226. And as neuroendocrinologist and Stanford University Professor Robert Sapolsky explained, the severe stress caused by the Jail’s lockdown conditions is also likely to depress immune response and increase the risk of severe illness and death from COVID-19. See Sapolsky Decl. ¶¶ 33, 39 (Doc. 41-1 at 83-84, 85); accord Haney Decl ¶ 26 (Doc. 2-1 at 209).
227. For those prisoners who have cellmates, “The fact that prisoners are double-celled during the[] lockdown[] does not mitigate the effects of their essentially around-the-clock-in-cell confinement. In fact, it may exacerbate these effects because of the interpersonal tensions and stressors that such unavoidably close around-the-clock contact generates.” Haney Decl. ¶ 20 (Doc. 2-1 at 209).106
106 See also Madrid v. Gomez, 889 F. Supp. 1146, 1229–30 (N.D. Cal. 1995) (“Roughly two-thirds of the inmates are double celled; however, this does not compensate for the otherwise severe level of social isolation in the SHU. The combination of being in extremely close proximity with one other person, while other avenues for normal social interaction are virtually precluded, often makes any long-term, normal relationship with the cellmate impossible. Instead, two persons housed together in this type of forced, constant intimacy have an enormously high risk of becoming paranoid, hostile, and potentially violent towards each other. The existence of a cellmate is thus unlikely to provide an opportunity for sustained positive or normal social contact.”) (citations omitted); Order, Georgia Advocacy Office v. Jackson, No. 1:19-CV-1634-WMR-RDC, Doc. 65 (S.D. Ga. July 23, 2019) (granting preliminary injunction to remedy solitary confinement conditions in which prisoners were double celled).
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228. The consequences of solitary confinement manifest after even relatively short timeperiods. “Notwithstanding that scholars have conducted dozens of studies on the psychological and emotional effects of solitary and segregated confinement, the leading survey of the literature regarding such confinement found that there is not a single published study of solitary or supermax-like confinement in which nonvoluntary confinement lasted for longer than 10 days, where participants were unable to terminate their isolation at will, that failed to result in negative psychological effects.” Porter v. Clarke, 923 F.3d 348, 356 (4th Cir. 2019), as amended (May 6, 2019) (quotations omitted); see also Peoples v. Annucci, 180 F. Supp. 3d 294, 299 (S.D.N.Y. 2016) (“After even relatively brief periods of solitary confinement, inmates have exhibited symptoms such as hypersensitivity to stimuli, perceptual distortions and hallucinations, increased anxiety, lack of impulse control, severe and chronic depression, appetite and weight loss, heart palpitations, sleep problems, and depressed brain functioning”).
229. Although short terms of solitary confinement impose high risks of psychological and physiological harm, longer and indefinite terms of solitary confinement conditions have even greater effects. See, e.g., Terry A. Kupers, Waiting Alone to Die, in Living on Death Row: The Psychology of Waiting to Die 47, 54 (Hans Toch & James Acker eds., 2018).
230. Defendant knew that implementing a generalized lockdown procedure— particularly during a pandemic and while visitation is suspended—would harm detainees.
231. Indeed, on March 26, 2020, just before the lockdown was implemented a Deputy Director of the Department of Corrections said, in an email to all Department staff, “With the existing elevated state of anxiety among inmates and staff, it would be more harmful to isolate inmates.” Doc. 37-22 at 39-40.
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232. Moreover, risk of psychological and physiological harms imposed by the Jail’s lockdown have been repeatedly and explicitly enumerated by Plaintiffs and by experts during this litigation.
233. Nevertheless, the lockdown persists. 234. The indefinite lockdown currently in place at the Jail is not subject to the procedural protections normally afforded to prisoners who are placed on lockdown or other status with limited privileges. 235. According to the Inmate Handbook, prisoners at the Jail who are assigned to special housing status—including maximum security housing or protective custody—will have their status reviewed by the Special Housing Board every seven days for the first two months and every thirty days thereafter. 236. The handbook states that prisoners on disciplinary restriction, who are defined as inmates placed on lockdown to maintain control and safety, may appeal their placement there. And as a general matter, prisoners may request a review of their classification status (which determines housing placement) at any time. 237. However, there is apparently no plan to end the preemptive, generalized lockdown before the pandemic ends.107 238. There is also no plan to, as the CDC Guidance and other public health experts recommend, limit lockdown to prisoners who require quarantine and to the time-period necessary for that quarantine to be effective (the CDC recommends 14 days). See supra ¶¶ 139-40.
107 There is no consensus about when or how the COVID-19 pandemic will end, but public health officials note that if an effective vaccine is developed, it may be available, at the earliest, by early 2021.
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239. Despite this, if the Jail wishes to enact social distancing, there are numerous alternatives to lockdown that the Jail can employ, but is not. These alternatives (unlike preemptive, indefinite lockdown) are recommended by the CDC Guidance. See supra ¶¶ 137-38 (enumerating options to enact social distancing).
240. Critically, throughout the pandemic and the lockdown, the Jail has failed—and continues to fail—to enact meaningful social distancing measures. Prisoners remain crowded together in (for examples) the Jail’s courtroom, in small rooms and hallways, and by the phones. Indeed, the lockdown exacerbates the problem of social distancing by the phones. Thus, prisoners must suffer the effects of the lockdown without actually benefiting from social distancing.
241. All of the exhibits cited in and attached to this Complaint are incorporated by reference.
CLASS ACTION ALLEGATIONS 242. Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, the individual named Plaintiffs seek to certify two classes with one subclass as follows:  The Pretrial Class is defined as “all people detained in the Prince George’s County Jail who are not detained pursuant to a judgment of conviction.”  The Post-Conviction Class is defined as “all people detained in the Prince George’s County Jail who are detained pursuant to a judgment of conviction.”  The Medically Vulnerable Subclass is defined as “all Pretrial Class members whose medical condition renders them especially vulnerable to the coronavirus as determined by guidelines promulgated by the Centers for Disease Control and Prevention.”108
108 See U.S. Centers for Disease Control and Prevention, People Who Are At Higher Risk (last reviewed Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html.
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243. The class allegations and law are set forth in more detail in the accompanying motion for class certification.
244. A class action is the only practicable means by which the individual named Plaintiffs and the class members can challenge Defendant’s unconstitutional actions. Many members of the class are without the means to retain an attorney to represent them in a civil rights lawsuit.
245. The classes and subclass are so numerous that joinder of all members is impractical. The number of people in custody exceeds 500. Demographic data regarding the health of correctional populations, which is set forth above, indicates that the Medically Vulnerable Subclass consists of at least 50 of people (and likely many more).109
246. There are questions of law and fact common to all class members and the subclass, including, among many others:
a. Do the Jail’s conditions create a substantial risk that the people in its custody will be infected with COVID-19?
b. Do the Jail’s conditions create a substantial risk that the people in its custody who are infected with COVID-19 will face serious illness, long-term physical damage, or death?
c. If Defendant McDonough acting with deliberate indifference to these risks?
109 A sizeable percentage of the jail population is likely medically vulnerable to COVID-19. According to one study, “asthma prevalence is 30%–60% higher among individuals with a history of incarceration as compared with the general population.” Elizabeth M. Vigilanto et al., Mass Incarceration and Pulmonary Health: Guidance for Clinicians, 15 Ann. Am. Thoracic Soc. 409, 409 (2019). Another study estimates that up to 15% of people who are in custody have asthma, 10% of people in custody live with a heart condition that requires medical care, 10% live with diabetes, and 30% have hypertension. See Laura M. Marushack et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, U.S. Dept. of Justice (2014).
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d. Is the risk of harm posed by the Jail’s conditions so severe and so immediate that the only adequate remedy is release?
247. The claims of the class representatives are typical of the claims of the classes and of the subclass. That typicality stems from their claim that Defendant McDonough has placed them at significant risk of serious harm by failing to take appropriate steps to address the risk of COVID-19 in the Jail. Every person at the Jail faces a heightened risk of risk of contracting COVID-19 and facing serious illness, physical injury, or death if Defendant does not adequately protected them.
248. The claims of the Medically Vulnerable Subclass representatives are typical of the subclass members as well, as each member is subject to increased risk of substantial harm or death due to their existing medical conditions.
249. The individual named Plaintiffs will fairly and adequately represent the interests of the classes and subclass. The named Plaintiffs have no conflicts with the unnamed members of the proposed classes. In addition, their lawyers are experienced in federal court civil rights class actions, particularly those involving prisons and jails.
250. Defendant McDonough has failed to act in a manner that applies generally to the classes and subclass as a whole, rendering class-wide injunctive and declaratory relief appropriate.
COUNT I 42 U.S.C. § 1983 (on behalf of all Class members) Eighth and Fourteenth Amendments: Jail Conditions 251. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 252. Plaintiffs and the classes they represent have been deprived and continue to be deprived by the Defendant of their rights under the Eighth and Fourteenth Amendments to
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reasonably safe living conditions. Defendant McDonough is aware of the substantial risk of harm that COVID-19 poses to all individuals, and she is further aware of the particular risks of severe illness and possible death that Plaintiffs face as a result of the conditions in the Prince George’s County Jail. Despite this knowledge, Defendant has failed to take reasonable measures to mitigate these dangers.
253. As a result of Defendant’s actions and inactions, class members face a substantial risk of contracting COVID-19 and sustaining a serious illness that could lead to death.
254. Defendant’s failure to take appropriate steps to curb the substantial threat posed by COVID-19 to each person in his custody, as described more fully above, violates Plaintiff’s rights to unreasonable risk of death and bodily harm.
255. Consequently, Defendant is in continuous violation of these Plaintiffs’ rights and the rights of the members of the subclasses under the Eighth and Fourteenth Amendments to the United States Constitution.
256. Plaintiffs seek injunctive and declaratory relief against Defendant McDonough to prevent the continued violation of the rights of Plaintiffs and the classes they represent.
COUNT II 42 U.S.C. § 1983 (on behalf of all Class members)
Fourteenth Amendment: Overdetention 257. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 258. Defendant’s policy of detaining COVID-positive people in the Jail who are legally entitled to release violates the Fourteenth Amendment. 259. As a result of Defendant’s actions and inactions, class members face a substantial risk of harm in the form of unlawful detention.
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260. All members of both classes are actively seeking to be legally entitled to release, whether by paying bail, acquittal, early release, or some other means. All are at imminent risk of contracting COVID-19. If these class members become legally entitled to release and test positive for COVID-19, the Jail may detain them beyond the date at which they are entitled to release.
261. Plaintiffs seek injunctive and declaratory relief against Defendant McDonough to prevent the violation of the rights of Plaintiffs and the classes they represent.
COUNT III Petition for Writs of Habeas Corpus Pursuant to 28 U.S.C. § 2241
(on behalf of Medically Vulnerable Subclass) 262. Medically Vulnerable Petitioners repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 263. Medically Vulnerable Petitioners are not in custody pursuant to a judgment of conviction of a state court. They are all pretrial detainees, presumed innocent. 264. Respondent McDonough is holding Medically Vulnerable Petitioners in custody in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. 265. Due Process forbids exposing Petitioners to a severe risk of death, pain, or permanent severe injury, and there are presently no options available to mitigate that risk quickly enough to protect them other than immediate release from custody.
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COUNT IV 42 U.S.C. § 1983 (on behalf of all Class members) Eighth and Fourteenth Amendments: Solitary Confinement 266. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 267. Plaintiffs and the classes they represent have been deprived and continue to be deprived by the Defendant of their rights under the Eighth and Fourteenth Amendments to reasonably safe living conditions. 268. Defendant McDonough is aware of the substantial risk of psychological and physiological harm that the Jail’s indefinite lockdown policy imposes on prisoners but has kept the policy in place for months with no plan to end it. Moreover, Defendant has done so despite the availability of other, more effective means of enacting social distancing. 269. As a result of Defendant’s actions and inactions, class members face a substantial risk of psychological and physiological harm. 270. Consequently, Defendant is in continuous violation of these Plaintiffs’ rights and the rights of the members of the subclasses under the Eighth and Fourteenth Amendments to the United States Constitution. 271. Plaintiffs seek injunctive and declaratory relief against Defendant McDonough to prevent the continued violation of the rights of Plaintiffs and the classes they represent.
COUNT V 42 U.S.C. § 1983 (on behalf of all Class members) Fourteenth Amendment Due Process: Solitary Confinement 272. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count.
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273. Plaintiffs and the classes they represent have been deprived and continue to be deprived by the Defendant of their state-created liberty interests under the Fourteenth Amendment without due process.
274. Despite the Jail’s policies by which a prisoner may normally challenge his placement in solitary confinement conditions, prisoners at the Jail have been placed in such conditions for months and for an indefinite time period.
275. These conditions constitute an atypical and significant hardship relative to the ordinary incidents of prison life.
276. The Jail lacks any process for determining whether a particular detainee must be placed in these conditions or when these conditions, as a general matter or in a particular housing unit, may end.
277. Consequently, Defendant is in continuous violation of these Plaintiffs’ rights and the rights of the members of the subclasses under the Fourteenth Amendment to the United States Constitution.
278. Plaintiffs seek injunctive and declaratory relief against Defendant McDonough to prevent the continued violation of the rights of Plaintiffs and the classes they represent.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs on behalf of themselves and the classes they seek to represent, request that this Court enter judgment in their favor and against Defendant McDonough and order the following relief: a. Issue a temporary restraining order, preliminary injunction, and final judgment for all
Class members requiring Defendant McDonough to implement constitutionally sufficient procedures to protect their health and safety that are consistent with CDC
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guidelines and the expert judgment of correctional health specialists, including but not limited to:
i. Effectively communicate to all prisoners, including low-literacy and nonEnglish-speaking people, sufficient information about COVID-19, measures to reduce the risk of transmission, and any other information necessary to reasonably ensure that these individuals are aware of what precautions they can take to prevent infection;
ii. Ensure that each prisoner receives, free of charge: (1) an individual supply of liquid hand soap and paper towels sufficient to allow frequent hand washing and drying each day; (2) tissues, and (3) adequate access to a supply of cleaning and disinfectant products effective against COVID-19 to allow for cleanings of frequently-touched surfaces several times per day;
iii. Clean and disinfect frequently-touched surfaces in common areas several times per day, including phones;
iv. Waive all fees for sick call for the duration of this pandemic; v. Provide adequate medical care to prisoners, whether because of COVID-19
symptoms, chronic health conditions, or any other medical issue; vi. Create and enact social distancing policies that allow for adequate spacing
of six feet or more between prisoners; vii. Ensure that prisoners have adequate access to phones to contact counsel
and/or family members such that prisoners need not congregate at the phones;
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viii. Provide appropriate Personal Protective Equipment (PPE) to prisoners and Jail staff according to the CDC’s recommendations, and receive appropriate instruction about how to don and doff it;
ix. End preemptive lockdown procedure in general population and instead impose appropriate time-limited quarantines, with that time limit clearly communicated to prisoners, only when necessary due to a known or suspected case of COVID-19, as recommended by medical and public health professionals;
x. Implement appropriate quarantining and medical isolation procedures as recommended by the CDC Guidance;
xi. To the extent a prisoner must enter lockdown or isolation to effectuate an appropriate quarantine or medical isolation procedure, provide appropriate mental health services, and, if that prisoner has a mental health condition, provide enhanced psychological services in these circumstances;
xii. Provide appropriate mental health services to all prisoners; xiii. Ensure that isolation, cohorted isolation, and quarantine cells are reasonably
clean and sanitary, and that prisoners in them receive adequate medical monitoring, adequate hygiene products, reading material, reasonable access to phones, a daily change of clothes, and the opportunity to shower once daily; xiv. Immediately create and implement a plan that complies with CDC Guidance to minimize transmission to and provide adequate medical monitoring and care to prisoners who are medically vulnerable to COVID-19;
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xv. Immediately end the policy and practice of detaining COVID-positive people in the Jail who are legally entitled to release.
b. To the extent it is necessary to ensure constitutionally sufficient procedures or to protect certain prisoners’ constitutional rights, order Defendant McDonough to transfer prisoners to home detention or another appropriate facility;
c. Order immediate release pursuant to a writ or writs of habeas corpus for members of the Medically Vulnerable Subclass;
d. If this Court does not immediately release the Medically Vulnerable Subclass, consider subclass members for release on non-monetary bond pending the outcome of their request for habeas relief;
e. Issue an order and judgment granting reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988 and 28 U.S.C § 2241; and
f. Grant such other relief as this Court deems just and proper.

Dated: July 3, 2020, 2020

Respectfully submitted,
By: s/Katherine Chamblee-Ryan Katherine Chamblee-Ryan (pro hac vice) Olevia Boykin (pro hac vice) Ryan Downer (pro hac vice) CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Suite 800 Washington, DC 20009 katie@civilrightscorps.org Phone: (610) 931-7715
Edward Williams (Bar No. 20944) Cadene Russell Brooks (pro hac vice) WILMER CUTLER PICKERING
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Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 58 of 59 HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 ed.williams@wilmerhale.com Phone: (202) 663-6487 Attorneys for Plaintiffs
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Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 59 of 59 Certificate of Service
I, Katherine Chamblee-Ryan, an attorney, hereby certify that on July 3, 2020, I caused a copy of the foregoing to be filed using the Court’s CM/ECF system. I further certify that I, or another one of Plaintiffs’ attorneys, will promptly serve a copy of the same on General Counsel for the Prince George’s County Department of Corrections’ Office via email.
/s/Katherine Chamblee-Ryan
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

KEITH SETH, DAVID SMITH, MARIO BURCH, and JOHN DOES 1–5, Individually and on behalf of a class of similarly situated persons,
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections,
Defendant-Respondent.

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Case No. 8:20-cv-01028-PX

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FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
AND PETITION FOR WRITS OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 22411
STATEMENT OF THE CASE2
1. There is an uncontrolled outbreak of COVID-19 at the Prince George’s County Jail
(“the Jail”).3

1 The Parties agreed to permit amended pleadings filed no later than July 3, 2020 in their July 1, 2020, Joint Status Report (Doc No. 117) and this Court affirmed that filing deadline at the July 2, 2020 Status Hearing. See Fed. R. Civ. P. 15(a)(2) (permitting amended pleading’s with opposing party’s consent or court order).
2 The following allegations in paragraphs 2-186 describe the state of the Prince George’s County Jail (“the Jail”) at the time Plaintiffs filed their Complaint on April 21, 2020.
3 Since Defendant McDonough is being sued in her official capacity, “Defendant McDonough” and “the Jail” are used interchangeably in this motion.

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2. The Jail’s actions fueled this outbreak, and it has also failed to take appropriate action in response.
3. The prisoners4 housed there—predominantly pretrial detainees—are under a constant and substantial threat of contracting the disease, and those already infected receive grossly substandard medical treatment (if they receive treatment at all).
4. Because jails, prisons, and other detention and correctional facilities are particularly vulnerable to COVID-19, the U.S. Centers for Disease Control and Prevention (CDC) has recommended basic measures these facilities should take to control the spread of the virus and treat infected prisoners—for example, providing prisoners with free access to soap and evaluating prisoners for symptoms.
5. The Jail has ignored these and other public health recommendations. 6. As a result, the nearly 600 people now imprisoned at the Jail are denied even the minimal precautions necessary to mitigate against the risks of COVID-19. 7. The people confined in the Jail do not have adequate soap (the Jail charges money for it). They regularly wait a week or more for medical attention (that costs money too). The spaces they share with other prisoners are not adequately sanitized. They are denied basic hygienic supplies. Symptomatic inmates are regularly turned away by medical staff, returning to general housing where they will surely infect others. 8. Prisoners who test positive for COVID-19 are confined in filthy isolation cells, where the walls are covered in feces, mucus, and blood. They are barely monitored and receive no real treatment.
4 For simplicity, the term “prisoner” is used throughout to describe the people who are currently incarcerated at the Prince George’s County Jail, both pretrial and post-conviction.
2

Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 3 of 59
9. By maintaining these conditions, Defendant McDonough has needlessly exposed the people imprisoned in the Jail to a highly infectious and potentially fatal disease. This violates prisoners’ Eighth and Fourteenth Amendment rights.
10. The Jail also refuses to release COVID-positive prisoners—even when they have no legal basis to detain them—until the Jail deems them non-contagious. This violates prisoners’ Fourteenth Amendment rights.
11. Plaintiffs5 seek class-wide relief requiring the Jail to take the necessary steps to safeguard prisoners’ health and safety. A subset of Plaintiffs also request a writ of habeas corpus pursuant to 28 U.S.C. § 2241 for prisoners whose age or underlying medical conditions make them particularly vulnerable to severe illness and death from COVID-19 (the “Medically Vulnerable Subclass”).
JURISDICTION AND VENUE 12. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a), and 2241(a). This Court has jurisdiction over Medically Vulnerable Subclass’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 13. Venue is proper in this District under 28 U.S.C. § 1391(b) because the events giving rise to the claims asserted in this complaint occurred in this District.
PARTIES 14. Plaintiff Keith Seth is detained pretrial in Housing Unit 17 at the Prince George’s County Jail. He has chronic bronchitis for which he was hospitalized last year. He is currently experiencing symptoms of COVID-19, including loss of taste, diarrhea, coughing and severe
5 The term “Plaintiff(s)” includes the Medically Vulnerable Subclass members, who are also petitioners seeking habeas relief.
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Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 4 of 59
shortness of breath. He cannot afford to pay the money required to request medical assistance. Mr. Seth has bipolar disorder; since the outbreak at the Jail, he has not received needed mental health treatment. See Ex. 1, Seth Decl. Mr. Seth filed a bond motion on April 8, 2019. It is still pending.
15. Plaintiff David Smith is detained pretrial in Housing Unit 9 at the Prince George’s County Jail. He suffers from chronic bronchitis. Since the outbreak, the Jail has not provided Mr. Smith with needed mental health treatment. See Ex. 2, Smith Decl. Mr. Smith filed a motion for bond reconsideration on April 8, 2020. That motion is scheduled for a hearing on April 24, 2020.
16. Plaintiff Mario Burch is detained pretrial in Housing Unit 8 at the Prince George’s County Jail. He has not seen anyone clean or sanitize any surfaces in his unit. He is “extremely scared of contracting the virus.” Ex. 3, Burch Decl. Mr. Burch’s bond was originally set at $3000, but he could not afford to purchase his release. On April 9, 2020, the court revoked his bond. He is facing two charges, each of which has a statutory maximum sentence of 90 days.
17. Plaintiff John Doe No. 16 is detained pretrial in Housing Unit 10 at the Prince George’s County Jail. He suffers from acute asthma. He has recently experienced symptoms of COVID-19: headaches, nausea, and shortness of breath. His cellmate also has symptoms of COVID-19. See Ex. 4, John Doe No. 1 Decl. On March 19, 2020, a court approved Mr. Doe No. 1 be released on home detention with GPS monitoring. The Pretrial Services Agency (“pretrial services”), which is part of the Department of Corrections, has not released him.
18. Plaintiff John Doe No. 2 is detained post-conviction in Housing Unit 17 (the work unit) at the Prince George’s County Jail. He suffers from severe asthma, for which he previously has been hospitalized. He has been spitting up brown mucus and having trouble breathing. Mr. Doe No. 2 has asked for medical attention or a test for COVID-19, but he was refused and told
6 John Doe Nos. 1-5 will seek leave to proceed by pseudonym. 4

Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 5 of 59
that the Medical Unit is too full. He asked for an inhaler, but his request was denied. On April 9, Mr. Doe No. 2 filed a motion requesting to serve his sentence on home detention. His motion has not been set for a hearing. See Ex. 5, John Doe No. 2 Decl.
19. Plaintiff John Doe No. 3 is detained pretrial in the Prince George’s County Jail. He uses a cane to walk and has numerous medical issues. Prior to the outbreak, Mr. Doe was housed in the Medical Unit. In late March, he was transferred to Housing Unit 11-B, which houses medically vulnerable prisoners, but (unlike the Medical Unit) does not have any on-site medical equipment or staff. He is currently experiencing sneezing and a cough. See Ex. 6, Decl. John Doe. No. 3 Decl. On April 9, 2020, a court approved Mr. Doe No. 3 for release to pretrial services. Pretrial services has not released him. Mr. Doe No. 3 is detained on a single count of violating a protective order, which carries a statutory maximum of 90 days.
20. Plaintiff John Doe No. 4 is detained pretrial in Housing Unit 9 at the Prince George’s County Jail. At least four detainees from Housing Unit 9 have been sent to the Medical Unit and not come back. One of them was his cellmate. See Ex. 7, John Doe No. 4 Decl. A court has approved Mr. Doe No. 4 for transfer to home detention, but pretrial services has not transferred him to home detention.
21. Plaintiff John Doe No. 5 is detained in Housing Unit 8 of the Prince George’s County Jail. He has asthma, chronic bronchitis, and is obese. Due to the poor circulation in his cell, he has been having difficulty breathing. Many people on his unit seem sick. See Ex. 8, John Doe No. 5 Decl. A court set bond for Mr. Doe No. 5 at $3000, with an option to be released upon paying 10 percent of it. Mr. Doe No. 5 cannot afford to purchase his release. The court has also approved Mr. Doe No. 5 for pretrial supervised release. Pretrial services has not released him.
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Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 6 of 59
22. Defendant Mary Lou McDonough is the Director of the Prince George’s County Department of Corrections. She is sued in her official capacity.
FACTUAL ALLEGATIONS A. COVID-19 Is Highly Infectious and Dangerous 23. On March 11, 2020, the World Health Organization (“WHO”) declared the outbreak of COVID-19 a global pandemic.7 24. States and counties across the nation have hurried to take the “urgent and aggressive action” the WHO deems necessary to slow the infection rate of the virus.8 25. Still, to date, more than 750,000 Americans are known have contracted COVID-19 and it has caused at least 35,000 deaths.9 26. D.C., Maryland and Virginia have reported more than 24,000 cases,10 and Maryland leads the region in both the number of cases and deaths: In the 46 days11 following Maryland’s first three confirmed cases, 12,836 people have tested positive for the disease and 544 people have died.12
7 World Health Organization, Director-General Opening Remarks (March 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-themediabriefing-on-covid-19---11-march-2020. 8 Id. 9 U.S. Map, Johns Hopkins School of Medicine (updated April 20, 2020) https://coronavirus.jhu.edu/us-map. 10 Jenna Portnoy, Patricia Sullivan, and Antonio Olivo, Coronavirus in the DMV: What you need to know, Wash. Post (Apr. 19, 2020) https://www.washingtonpost.com/dc-mdva/2020/03/07/maryland-virginia-dc-coronavirus/?arc404=true#maryland. 11 Jenna Fulginiti, Tramon Lucas, and Greg Ng, Timeline: Coronavirus in Maryland, WBALTV (Apr. 19, 2020) https://www.wbaltv.com/article/timeline-coronavirus-in-maryland/31394971#. 12 Portnoy, supra note 7.
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Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 7 of 59
27. COVID-19 is highly contagious. An infected person can spread the virus through brief, indirect contact with others. Every time an infected person coughs, sneezes, or speaks, she might pass the virus to those in her vicinity.13
28. The virus can survive on inanimate surfaces like cardboard, plastic or steel for up to three days.14 The respiratory droplets from an infected individual can linger in the air for as many as three hours.15
29. An unknown number of infected people are nearly or entirely asymptomatic. This means a person who has contracted the virus can pass it to others without knowing she is sick. Accordingly, some researchers insist, “Everyone should act as if they are already infected.”16
30. For those who contract COVID-19, the results can be dire. 31. An estimated sixteen percent of those who contract it will suffer severe illness. Ex. 30, Meyer Decl. ¶ 9. 32. In the United States, roughly three percent of those who are infected die. Ex. 32, Benninger Decl. ¶ 2(G)(i).

13 Ex. 30, Meyer Decl. ¶ 8 (“The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces.”). See also Ex. 31, Meyer Curriculum Vitae.

14 Neeltje van Doremalen et al., Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, New England J. Medicine (March 17, 2020), https://www.nejm.org/doi/full/10.1056/NEJMc2004973.

15 Ex. 32, Benninger Decl. ¶ 2(C); see also Ex. 33, Benninger Curriculum Vitae.

16 Nina Bai, Coronavirus Is Sickening Young Adults and Spreading Through Them, Experts Say,

University

of

California

San

Francisco

(Mar.

20,

2020)

https://www.ucsf.edu/news/2020/03/416961/coronavirus-sickening-young-adults-and-spreading-

through-them-experts-say.

7

Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 8 of 59
33. Twenty percent of those who contract COVID-19 will need hospitalization, and five percent will require intensive care. Id. ¶ 2(F).
34. Those who survive the virus may suffer long-term damage to the heart, liver, and lungs.17
35. These risks of severe illness and death are more acute for people who are over a certain age or who have pre-existing conditions, including asthma, lung disease, heart disease, and diabetes.18
36. Without effective public health measures, the U.S. Centers for Disease Control and Prevention (CDC) has projected that over 200 million people could be infected.19
37. This would overrun the healthcare system, making it impossible for many critically ill people to receive the care they need to live.20

17 Melissa Healy, Coronavirus infection may cause lasting damage throughout the body, doctors

fear, L.A. Times (April 10, 2020), https://www.latimes.com/science/story/2020-04-

10/coronavirus-infection-can-do-lasting-damage-to-the-heart-liver (describing studies finding

impaired liver function and heart failure in COVID-19 patients); Panagis Galiatsatos, What

Coronavirus

Does

to

the

Lungs,

Hopkins

Medicine,

https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/what-coronavirus-

does-to-the-lungs (describing potential long-term lung damage from COVID-19).

18 Centers for Disease Control, At Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-

ncov/need-extra-precautions/groups-at-higher-risk.html (last reviewed Apr. 15, 2020).

19 James Glanz, et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say,

N.Y.

Times

(Mar.

20,

2020),

available

at

https://www.nytimes.com/interactive/2020/03/20/us/coronavirus-model-us-outbreak.html.

20 Leana Wen, Hospitals are overwhelmed because of the coronavirus. Here’s how to help., N.Y. Times (Mar. 15, 2020), https://www.washingtonpost.com/opinions/2020/03/15/hospitals-areoverwhelmed-because-coronavirus-heres-how-help; see also Ex. 30, Meyer Decl. ¶ 10 (“Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.”).

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Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 9 of 59
38. To prevent this, the shape of daily life for most Americans has radically changed: 97 percent of the U.S. population is now subject to some degree of imposed shutdown or stay athome decree.21
39. On March 30, Maryland Governor Larry Hogan issued a stay-at-home order, mandating that residents may leave their homes only as needed to work essential jobs or complete essential tasks, like purchasing food and medicine.22
40. On the same day, D.C. Mayor Muriel Bowser and Virginia Governor Ralph Northam announced stay-at-home orders that require residents to stay in their homes and cease all non-essential activities until May 15, 202023 and June 10, 2020,24 respectively.
41. Even with these extreme measures, which have been replicated across the country, the national infection curve “has not yet flattened,”25 and data suggests that, for D.C., Maryland and Virginia, the peak of the virus may be weeks or months away.

21 All Your Coronavirus Questions Answered, Time (Apr. 14, 2020), https://time.com/5820118/coronavirus-questions-answered.

22 The Office of Governor Larry Hogan, As COVID-19 Crisis Escalates in Capital Region, Governor Hogan Issues Stay at Home Order Effective Tonight (Mar. 30, 2020) https://governor.maryland.gov/2020/03/30/as-covid-19-crisis-escalates-in-capital-regiongovernor-hogan-issues-stay-at-home-order-effective-tonight.
23 On April 15, Mayor Bowser announced that the D.C. order would extend until May 15. Marty Johnson, DC extends stay-at-home order through May 15, The Hill (Apr. 15, 2020) https://thehill.com/homenews/state-watch/492928-dc-extends-stay-at-home-order-through-may15.

24 Executive Order Number 55, Temporary Stay At Home Order Due to Novel Coronavirus

(COVID-19)

(Mar.

30,

2020)

https://www.governor.virginia.gov/media/governorvirginiagov/executive-actions/EO-55-

Temporary-Stay-at-Home-Order-Due-to-Novel-Coronavirus-(COVID-19).pdf

25 All Your Coronavirus Questions Answered, supra note 19.

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42. The University of Pennsylvania Medicine’s COVID-19 Hospital Impact Model for Epidemics predicts that the regional peak of COVID-19 infections and deaths will occur in late June or early July.26
43. Though it may be difficult for those who have already spent weeks at home to fathom, the best evidence indicates that D.C., Maryland, and Virginia are at only “the end of the beginning” of this crisis.27
B. COVID-19 is Causing a Crisis in Prince George’s County 44. Prince George’s County is the “epicenter of [the COVID-19 epidemic in] the state.”28 45. As of April 14, the County had 2356 confirmed cases and 72 deaths.29 Though Prince George’s County makes up only 15 percent of the state’s population, its COVID-19 deaths have made up nearly 25 percent of the total COVID-19 deaths in the state of Maryland.30

26 Jeffrey Katz and Martin Austermule, How Close Is The D.C. Region To Flattening 'The Curve'

Of

The

Coronavirus?,

NPR

(Apr.

10,

2020)

https://www.npr.org/local/305/2020/04/10/831751001/how-close-is-the-d-c-region-to-flattening-

the-curve-of-the-coronavirus.

27 Brad McMillan, A Coronavirus Milestone: The Flattening Of The Curve, Forbes (Apr. 14, 2020) https://www.forbes.com/sites/bradmcmillan/2020/04/14/a-coronavirus-milestone-the-flatteningof-the-curve/#71bc0f3e4ba5.

28 Rachel Chason, Hospitals in Prince George’s seeing an influx of critically ill coronavirus patients, Washington Post (Apr. 14, 2020), https://www.washingtonpost.com/local/princegeorges-hospitals-coronavirus-crisis/2020/04/14/2ac05724-7e7f-11ea-904068981f488eed_story.html.

29 Id.

30 Fulguniti, supra note 9.

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Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 11 of 59
46. The County has high rates of diabetes, heart disease, hypertension and obesity— conditions that make one more vulnerable to complications from the virus.31 The County has had a shortage of healthcare provider shortage for years. Up to 60 percent of residents travel out-ofcounty for care.32
47. In addition, in recent weeks, medical professionals across the country have seen racial disparities in COVID-19 infection, hospitalization, and mortality rates.33 Black people who are infected are more likely to suffer severe illness and die.34 An analysis by the Washington Post found that majority-black counties had infection-rates three times that of majority-white counties.35
31 Regional Primary Care Coalition, The Healthcare Landscape in Prince George’s County: Opportunities for Improvement, available at http://www.regionalprimarycare.org/wpcontent/uploads/2018/07/The-Healthcare-Landscape-in-Prince-Georges-County.pdf. 32 Id. At 9. 33 John Eligon, et al., Black Americans Face Alarming Rates of Coronavirus Infection in Some States, N.Y. Times (Apr. 7, 2020), https://www.nytimes.com/2020/04/07/us/coronavirusrace.html. 34 Ex. 32, Benninger Decl. ¶ 2(h) (“Preliminary data suggest that African-Americans are suffering from more severe illness related to COVID-19 at higher rates than other races in the United States.”). 35 Reis Thebault, Andrew Ba Tran, and Vanessa Williams, The coronavirus is infecting and killing black Americans at an alarmingly high rate, Wash. Post (Apr. 7, 2020), https://www.washingtonpost.com/nation/2020/04/07/coronavirus-is-infecting-killing-blackamericans-an-alarmingly-high-rate-post-analysis-shows/?arc404=true. These disparities exist because other inequities and disparities do. Black people disproportionately hold jobs in which they are unable or not allowed to work from home, putting them at risk of contracting the virus on their way to or at work. Black people also have higher rates of the underlying medical conditions that CDC says put people at higher risk of severe illness from COVID-19. Id.
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48. Accordingly, because the majority (64 percent) of Prince George’s County is Black, the people of Prince George’s County are more susceptible to COVID-19 than other counties across the state.
49. Area hospitals are “inundated with critically ill patients” and are at or exceeding their capacities.36
50. Beginning April 14, at least two County hospitals—Prince George’s Hospital and MedStar Southern Maryland Hospital Center—were forced to send patients to out-of-county hospitals because they had no room in their own critical care units, even though both hospitals have been rapidly adding beds within the facility and in tents outside of the building.37
51. On March 16, Prince George’s County Executive Angela Alsobrooks declared a state of emergency due to COVID-19.38
52. On April 7, Governor Larry Hogan flagged Prince George’s County, along with ten others, to the White House as needing “urgent federal attention.”39
53. In addition to Maryland’s statewide stay-at-home order, the County has instituted a number of efforts to slow the spread of the virus.
36 Chason supra note 26. 37 Id. 38 Office of the Prince George’s County Executive Angela D. Alsobrooks, County Executive Alsobrooks Officially Declares A State Of Emergency In Prince George’s County Due To Covid19 (Mar. 16, 2020) https://www.princegeorgescountymd.gov/ArchiveCenter/ViewFile/Item/3171 39 Andrea Swalec, White House Designates DC-Baltimore Area as an ‘Emerging Hot Spot’ for Coronavirus, Hogan Says, NBC Washington (Apr. 7, 2020) https://www.nbcwashington.com/news/local/white-house-has-designated-dc-baltimore-area-asemerging-hot-spot-for-virus-hogan-says/2266929.
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Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 13 of 59

54. As early as March 12, 2020, the County announced that its Courthouse would close to the public until May 1, 2020.40
55. The Circuit Court and District Court issued orders outlining the limited operations courts would continue to perform.
56. On March 16, County Executive Alsobrooks closed all restaurants, movie theaters, gyms and bars, and closed to the public all government buildings.41
57. On April 10, the County announced on that it had set up a quarantine site for first responders to “ensure[] they will not take the virus home to their families should they be exposed.”42
58. As of April 15, residents have been ordered to cover their faces when they go to the grocery store or the pharmacy, or when they the ride the County’s bus system.43
B. Jails and Prisons Are Exceedingly Vulnerable to COVID-19 59. Epidemics pose a heightened risk in jails, prisons, and detention centers. 60. These “[c]ongregate settings . . . allow for rapid spread of infectious diseases that
are transmitted from person to person.” Ex. 30, Meyer Decl. ¶ 16.

40 Prince George’s County Courts, The Courthouse is closed to the Public through June 5, 2020,

due

to

the

Coronavirus

Pandemic

(Mar.

12,

2020)

https://www.princegeorgescourts.org/AlertCenter.aspx?AID=The-Courthouse-is-closed-to-the-

Public-t-22.

41 County Executive Official Declares A State of Emergency supra note 43.

42 Prince George’s County, Community Connections Newsletter: COVID-19 Update (Apr. 10, 2020) https://content.govdelivery.com/accounts/MDPGC/bulletins/285c9ff.

43 Office Of The Prince George’s County Executive Angela D. Alsobrooks, County Executive Alsobrooks To Sign Executive Order Requiring Face Coverings For Patrons In Grocery Stores (Apr. 11, 2020) https://www.princegeorgescountymd.gov/DocumentCenter/View/29817/PressRelease---Face-Coverings.

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Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 14 of 59
61. Diseases that spread in these facilities imperil the communities around them as well.44
62. At a time when it is imperative that the County flatten its curve, correctional facilities like Prince George’s County Jail “drive up the curve.”45
63. Moreover, as a general matter, jails and prisons are often poorly equipped to enact
adequate prevention measures and care for incarcerated people who get sick. Ex. 30, Meyer Decl.
¶¶ 17–18.
64. And because people incarcerated in jails and prisons are more likely to have chronic
underlying health conditions, “they are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.” Id. ¶ 20.46
65. These concerns multiply in the face of COVID-19, which is both highly
communicable and highly dangerous.
44 Ex. 30, Meyer Decl. ¶ 16 (“Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. . . . Prison health is public health.”); see also Ex. 34, Haney Decl. ¶ 17 (“Staff members are at risk of having contracted COVID-19 and then transmitting it to all those inside the institutions, including prisoners and other staff.”). 45 Philip Jackson, Maryland jails are incubators for the coronavirus and precautions must be taken to avoid an outbreak, experts say, Baltimore Sun (Mar. 13, 2020) https://www.baltimoresun.com/coronavirus/bs-md-ci-coronavirus-maryland-jails-20200313zn4k2knuujgvnhqmpm63jib3la-story.html. 46 See Ex. 32, Benninger Decl. ¶ 3(c) (“[Prisoners] are higher risk at baseline than the general population for having more severe complications from COVID-19 because they are disproportionately more likely to be afflicted with medical chronic conditions, be obese, and be African-American. In addition, they are more susceptible to mental health complications, especially during this pandemic, because they are more likely to have mental health comorbidities and pandemics and isolation can increase feelings of anxiety and depression.”).
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66. “Containing this virus has been difficult in the community and it is almost impossible in correctional health settings given the congregate environment.” Ex. 32, Benninger ¶ 3(B).47
67. As a result, “people will die behind bars of coronavirus who would have survived in the community.” Id.
C. There is a COVID-19 Outbreak at the Prince George’s County Jail 68. The first case of COVID-19 at the Prince George’s County Jail was reported on March 30, 2020.48 69. Addressing this case, Defendant DOC Director Mary Lou McDonough told The Washington Post, “I expect we’ll have more before this is over,” and compared jails to “cruise ships without the views or the amenities.”49 70. As Defendant McDonough explained, “A jail is a pretty transitory place. People are close together. You’re all breathing the same air.”50
47 See also Ex. 30, Meyer Decl. ¶ 24 (“When even the most sophisticated hospital systems in this country have been overwhelmed by the COVID-19 pandemic, it will be impossible for prison health systems to contain it. This is especially true when emergency preparedness plans are underdeveloped.”). 48 Deb Belt, “Female Inmate at Prince George’s County Jail Has Coronavirus,” Patch.com (Mar. 30, 2020), https://patch.com/maryland/bowie/female-inmate-prince-georges-county-jail-hascoronavirus. 49 Keith L. Alexander, Dan Morse, and Spencer S. Hsu, “As inmates in D.C., Maryland and Virginia test positive for the coronavirus, jail officials scramble to reduce the risk,” Wash. Post (Apr. 1, 2020), https://www.washingtonpost.com/local/public-safety/as-inmates-in-dc-marylandand-virginia-test-positive-for-the-coronavirus-jail-officials-scramble-to-reduce-therisk/2020/04/01/b0d9cfd8-7363-11ea-85cb-8670579b863d_story.html. 50 Id.
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71. Four days after the first case, on April 3, 2020, a total of three prisoners and one jail guard had tested positive for the virus.51
72. The DOC has not reported the number of COVID-19 cases at the jail since that
date.
73. But the virus continues to spread.
74. Over the last month, prisoners have seen people removed from their housing units or reporting to the Medical Unit because of COVID-19 symptoms.52
75. Some jail guards are missing from their regular shifts.53 76. Many prisoners appear to be sick.54 From what they have been able to observe from
their cells or the Medical Unit, Plaintiffs are aware of at least 14 prisoners with confirmed cases
of COVID-19 across at least half of the jail’s ten adult housing units.
77. A jail guard told the prisoners in one housing unit that there are 77 cases of COVID-
19 at the jail. Ex. 8, John Doe No. 5 Decl. ¶ 13.
51 Laura Wainman, “3 Inmates, 1 Correctional Officer at Prince Georges Department of Corrections Test Positive for Coronavirus,” WUSA9 (Apr. 3, 2020), https://www.wusa9.com/article/news/health/coronavirus/coronavirus-prince-georges-county-jailinmates-officer/65-b4e2051e-7b29-41e7-96f3-eb2a9473e038. 52 Ex. 5, John Doe No. 2 Decl. ¶5 (“In the last 10 days at least six individuals have been removed from my housing unit because they were experiencing symptoms of the coronavirus, including my bunkmate.”); Ex. 25, Decl. 25¶16 (“I would guess at least six people from my unit alone, H17, have gotten infected.”); Ex. 15, Decl. 15 ¶6 (observing “more people going to the medical unit than was typical”); Ex. 24, Dec24 ¶4 (“Four people have left the unit and not returned.”). 53 Ex. 24, Decl. 24 ⁋4 (“Two of the regular officers for the evening shift have not been seen for a few weeks.”). 54 Ex. 15, Decl. 15 ¶6 (“I have heard many people coughing on the unit and in the last two weeks”); Ex. 24, Decl. 24 ¶4 (“There seems to be a flu or sickness spreading around the unit, for over 3 weeks now.”); Ex. 24, Decl. 24 ¶5 (“There are 82 people in my unit. Many of them are sick or have been sick.”).
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78. As one prisoner described it, “I feel like everyone in the unit is catching it. . . . [I]t seems like almost everyone is sick.” Ex. 21, Decl. 21 ¶12.
D. The Jail Has Not Taken Basic Precautions to Prevent the Spread of COVID-19 79. On March, 23, the CDC issued explicit recommendations to correctional facilities about how to prevent or slow the spread of COVID-19. See Ex. 36, U.S. Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities (March 23, 2020). 80. Many of these measures are basic. For example, corrections facilities should “[c]reate and test communications plans to disseminate critical information to incarcerated/detained persons, staff, etc. as the pandemic progresses.” Ex. 36, CDC at 5. 81. But the jail has not provided prisoners with information about COVID-19, its symptoms, or how to protect themselves from it.55 82. The CDC also provides clear guidelines on cleaning, disinfecting, and hygiene. Several times a day, staff should “clean and disinfect surfaces and objects that are frequently
55 Ex. 10, Decl. 10 ¶ 8 (“They never gave us any warning or any memorandum in our housing unit saying what was going on, what Coronavirus is, what you can do to protect yourself, what the symptoms are. We never saw one memorandum in our whole housing block. We were never told to stay six to ten feet away from people. Nothing. Of course, every time there’s a change to the phone system or the commissary system, we get a memorandum. But they never gave us a memorandum about Coronavirus.”); Ex. 11, Decl. 11¶ 8 (“They didn’t make any announcement or anything telling us about it, and the jail was being locked down more and more at that time.”); Ex. 22, Decl. 22 ¶ 5 (“The jail [has not been] specific about the symptoms.”). See also Ex. 32, Benninger Decl.¶ 3(I) (“Inmates are not being informed of jail policies regarding COVID-19. They have not received information in writing or verbally regarding COVID-19 or prevention strategies. They have not received guidance regarding social distancing. . . .Inmates are restricted from watching television news related to the nature of solitary confinement. Inmates do not have sufficient source of updated information regarding COVID-19.”)
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touched in common areas. Ex. 36, CDC at 9. Facilities should provide prisoners with “no-cost
access” to “liquid soap” and “tissues.” Ex. 36, CDC at 10.
83. None of this happens at the Prince George’s County Jail.
84. Prisoners do not have liquid soap or hand sanitizer.56
85. The jail gives prisoners one or two bars of soap when they first arrive.57 If prisoners
want soap after that, they can buy bar soap from the commissary. 58 Prisoners may only buy one
bar of soap per week. Ex. 8, John Doe No. 5 ¶ 17.
86. “If you don’t have money, you can’t buy soap[.]” Ex. 13, Decl. 13 ⁋ 9. Many
prisoners who cannot afford it do not have soap at all. Ex. 19, Decl. 19 ¶ 15. They “use only water
to try and wash themselves.” Ex. 3, Burch Decl. ¶ 7.59 Some trade food for soap.
87. Jail staff do not regularly clean and sanitize shared amenities or surfaces in the
housing units’ common areas.60
56 See Ex. 36, CDC at 10 (recommending that inmates be provided no-cost access to liquid soap and, if possible, hand sanitizer). 57 Decl. 13 (Ex. 13) ¶ 9 (“I came in fairly recently, so I have a bar of soap, but many do not have adequate personal cleaning supplies.”); Ex. 3, Burch Decl. ¶ 7 (“I currently have one bar of soap that I received from the jail when I came in.”).
58 Ex. 15, Decl. 15 ¶ 9 (“[D]etainees with access to funds can buy soap from the Commissary for approximately $2.50 per bar.”). Hygiene kits also contain a bar of soap, along with toothpaste, a toothbrush, and deodorant; they can be purchased at the commissary for $9. Ex. 9, Decl. 9 ¶ 17.
59 Ex. 32, Benninger Decl.¶ 3(D) (“Inmates in medical isolation are experiencing significant delays, up to a week, in receiving hygiene items and soap. Inability to access soap is inappropriate during a pandemic.”)
60 Ex. 15, Decl. 15 ¶8 (“The only time surfaces and areas are cleaned down is the beginning of each shift. During the day, as people circulate within the housing unit, no steps are taken to wipe down shared surfaces. The staff clean their own areas such as their command desks but I have not seen them clean any other areas during shifts.”); Ex. 19, Decl. 19 ¶10 (“The unit is no cleaner now than it was before the outbreak.”); Ex. 3, Burch Decl. ¶9 (“I have not seen anyone clean or sanitize any surfaces in my housing unit.”); Ex. 18, Decl. 18 ¶16 (“During the day, as people circulate within the housing unit, no steps are taken to wipe down shared surfaces. I sometimes see staff
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88. Phones are not regularly cleaned between uses. On some units, they are never cleaned.61
89. The cells of prisoners who have been transferred to the Medical Unit for COVID19 are left dirty and unsanitized for days, despite the fact that cells are shared.
90. Prisoners do not have their own cleaning supplies. They can request them—a spray bottle and paper towels (which are rationed)—to clean their own cells during their hour of recreation time.
91. Even these supplies are limited, and prisoners cannot always get them.62 92. The CDC suggests that correctional facilities implement “social distancing” strategies. “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.” Ex. 36, CDC at 4. 93. However, the Jail has not enacted (or explained) effective social distancing measures.
wiping down surfaces, but these are generally just the desks or other surfaces that the staff regularly use – not the ones we detainees interact with.”). 61 Ex. 15, Decl. 15 ¶7 (“The phones are not cleaned between uses.”); Ex. 2, Smith Decl. ¶11 (“The phone is not getting wiped down between people using it.”); Ex. 23, Decl. 23 ¶12 (“To my knowledge, detail only cleans the phones once a day.”); Ex. 25, Decl. 25 ¶10 (“Generally, phones are not cleaned between uses, though individual inmates will do their best. As I was talking to my lawyer on the phone on April 10, 2020, I observed several guys finish phone calls, and the phones were not cleaned.”); Ex. 8, John Doe No. 5 Decl. ¶ 14 (“The phones are not cleaned between uses.”). 62 Ex. 30, Meyer Decl. ¶ 29. (“Inconsistent access to hygiene and disinfection measures will result in widespread infection throughout the facility.”)
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94. The vast majority of prisoners are sharing their roughly 60 square foot cells with a
cellmate, sleeping in bunks directly on top of one another.
95. Even prisoners in different cells are less than six feet apart.
96. Jail guards enter prisoners’ cells multiple times a day to do count.63 As one prisoner
explained, “I come within six feet of nine guards every day. All three on the shift come in your
cell when they do count, and that happens three times a day. There is no way to avoid having them
come into your cell.” Ex. 16, Decl. 16 ¶ 9. Guards do not wear gloves, and only some of them wear
masks.64
97. Jail staff have not explained the concept of social distancing.65 As a result, some
prisoners did not know that they should stay six feet away from others—especially those with
symptoms of COVID-19.
98. Plaintiff Keith Seth learned about the social distancing guidelines for the first time
on the phone from his lawyer. On hearing this, Mr. Seth realized that he had been within a foot of
a sick prisoner earlier that same day:
“[Earlier today] the person in the cell next to me had to go to the medical unit because he was sneezing, shaking, and sweating. I was just talking to him yesterday, and when I was talking with him I was within a foot of him. I did not know that I was being unsafe in talking to him so closely because I have not been told by anybody to stay away from other inmates. The only information I received is to stay six feet away from the officer’s desk. I have no received no information about how to protect myself from the Coronavirus.”66 63 “Count” refers to the head count that jail guards perform to make sure that no prisoners are missing.
64 Ex. 20, Decl. 20 ¶ 18 (“Correctional officers come in to do arm band checks [as part of count] and many times don’t have their masks on.”); Ex. 5, John Doe No. 2 Decl. ¶ 10 (“Some of the correctional officers wear masks, some don’t. None of them wear gloves.”). See also Ex. 27, Decl. 27 ¶ 14 (“[W]e know that [the virus] can come in from them. They leave and go out into the world every day. They are putting us in jeopardy if they are not cautious.”). 65 Ex. 8, John Doe No. 5 Decl. ¶ 10 (“Other than the division of recreational time, no efforts [have] been made towards encouraging or ordering social distancing.”). 66 Ex. 1, Seth Decl. ¶ 9.
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99. The Jail’s limited attempts at social distancing measures are markedly careless. Although recreation time has been staggered in groups of 10, the same group of prisoners does not always take recreation together each day.
100. Thus, infected prisoners, who may be contagious for up to two weeks before exhibiting symptoms,67 can infect a new set of other prisoners at recreation each day, and then those prisoners can infect even more. See Ex. 30, Meyer Decl. ¶ 30 (noting that while staggered recreation can be an effective social distancing strategy, it is “not useful to prevent the spread of disease if recreation is staggered with different individuals each day (i.e. different groups of 10).”).
101. When prisoners show symptoms of COVID-19, Jail staff do not (as the CDC recommends) place them in medical isolation. See Ex. 36, CDC Guidance at 10 (“As soon as an individual shows symptoms of COVID-19, they . . . should be immediately placed under medical isolation in a separate environment from other individuals”).68
102. Instead, in late March and early April, when the COVID-19 outbreak at the jail began, jail guards and medical staff routinely disregarded prisoners’ COVID-19 symptoms.
103. Prisoners visited the medical unit with fevers, shortness of breath, coughing, chills, headaches, and fluid in the chest, and medical staff sent them back to their housing units with Claritin or Tylenol.69
67 See Ex. 32, Benninger Dec. ¶ 2(D). 68 See Ex. 30, Meyer Decl. ¶ 27 (“One of the most critical infection control measures in correctional settings is to accurately identify people who are ill and medically isolate them from the general population.”). 69 Ex. 19, Decl. 19 ¶ 5 (“Last week, I felt really bad for two or three days. I had body aches, a runny nose, and what felt like fluid in my chest. . . .Once in Medical, someone I think was a nurse took my temperature. It was 101 or 102. Despite this, I only remained in the medical unit for ten or 15 minutes. I was told to return to my cell and drink fluids. That was all.”); Ex. 17, Decl. 17 ¶ 4 (“Two days ago I had a headache and felt like I had a fever, and I was sneezing. I went to sick
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104. The CDC recommends that staff avoid “transporting [symptomatic] individual[s] through the facility.” Ex. 36, CDC at 10. Instead, these individuals should be placed in medical isolation70 and “refer[red] to healthcare staff for further evaluation.” Ex. 36, CDC at 10.
105. But Jail staff shuttled sick prisoners back and forth between the Medical Unit and their cells multiple times—including prisoners who later tested positive for COVID-19.
106. For example, one pretrial detainee, Declarant 9, who has “asthma, a prior history of bronchitis, and a seizure disease,” began to feel sick on Wednesday, March 25, 2020. Ex. 9, Decl. 9 ¶¶ 3–4. By the next day, he “was sweating profusely, vomiting, and [was] too weak to get out of [his] cell.” Id. ¶ 4.
107. He asked his cellmate to tell the jail guards that he needed medical attention. Guards responded that he was “playing” and would “be alright.” Id. So he waited eight hours for the next shift to begin.
108. After the shift change, the new jail guards were afraid to come near him because of his symptoms. They asked another inmate to put on a glove, enter Declarant 9’s cell, and touch his forehead. When the inmate showed the officer the glove, soaked in sweat, the officers sent Declarant 9 to sick call. Id. ¶ 5.
109. A nurse took Declarant 9’s temperature. It was 101.2 degrees. Declarant 9 told her about his symptoms and said he believed they were serious. The nurse told him he had “been [at
call. They gave me headache medicine and Claritin and sent me back to the unit. I asked to be tested for the virus, but they said they don’t have any tests.”). Ex. 21, Decl. 21 ¶ 5 (“Some people have asked for medication/treatment, medical exams, and have been told that what they have is not serious, or it’s a cold.”); see Ex. 30, Meyer Decl. ¶ 31. (“[P]risoners are given Claritin- a decongestant that is entirely useless for COVID-19.”). 70 “Medical isolation” requires moving a person to “a separate environment from other individuals,” and “keep[ing] the individual’s movement outside the medical isolation space to an absolute minimum.” Ex. 36, CDC at 15.
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the Jail] too long to catch the virus,” gave him Tylenol, and sent him back to his housing unit. Id. ¶ 6.
110. Over the following two days, Declarant 9 went back and forth between the medical unit and his housing unit four times. Each time he went to the Medical Unit, he had to pay $4. Id. ¶ 7.71
111. On Friday, April 3, Declarant 9 tested positive for COVID-19. 112. Other COVID-positive prisoners experienced similar treatment. Declarant 11, a pretrial detainee, first developed symptoms at the end of March with “headache, fever, chills, runny nose, and heavy sweating.” Ex. 11, Decl. 11 ¶ 4. 113. At a sick call on April 1, his temperature was 103 degrees. Declarant 11 was given Tylenol and a paper mask and returned to his housing unit. Id. ¶ 6. 114. Declarant 11 went back and forth between the Medical Unit and his housing unit three times. During one of his visits to medical, Declarant 11 mentioned that his cellmate had been in the Medical Unit for six days. When the staff realized that Declarant 11’s cellmate had tested positive for COVID-19, they tested Declarant 11 too. Id. ¶ 10. 115. He tested positive for COVID-19 on April 5. Id. ¶ 11. 116. Declarant 12, a pretrial detainee, began to feel sick on Thursday, March 26 with “chills, body aches, coughing, and fatigue.” Ex. 12, Decl. 12 ¶¶ 3–4. He visited the Medical Unit twice that day, and his temperature was measured at 100, and then 101 degrees. Id. Each time, the nurse sent him back to his cell. Id.
71 Prisoners request medical help by filling out a form for a “sick call.” Every “sick call” costs $4. Ex. 3, Burch Decl. ¶ 11 (“If an inmate puts in a sick call they have to pay money in order to go to the infirmary.”); Ex. 26, Decl. 26 ¶ 5 (“It costs $4 to go to a sick call. I can afford this, but not everyone in the jail can.”).
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117. The next day, Declarant 12 went to the Medical Unit again. His temperature was 104.7 degrees. Id. But the nurse sent Declarant 12 back to his cell. Id. ¶¶ 3-5. Ultimately, Declarant 12 went back and forth between his housing unit and the Medical Unit five times before he was transferred to the Medical Unit for COVID-19. Id. ¶ 3. Each time, Declarant 12 had to pay $4 for the sick call. Id.
118. When prisoners with symptoms of COVID-19 are sent back to their housing units from medical, they are not isolated, and other prisoners are not warned. As one prisoner described:
“In some cases, people on the unit have gone to sick call and been sent back, and then they go again and again, and we hear later on that they had the coronavirus. The same people who later left and I heard they had the coronavirus, we had been playing spades with them at the tables just days before. I have told my family that I love them because I feel sure I am going to get the virus in here.”72 119. The CDC also provides that prisoners with symptoms of COVID-19 should be required to wear face masks whenever they are outside of isolation. Ex. 36, CDC at 15.73 A facility should “[p]rovide clean masks as needed,” and “[m]asks should be changed at least daily, and when visibly soiled or wet.” Ex. 36, CDC at 15. 120. This does not happen at the Prince George’s County Jail. Jail staff gave each prisoner one thin, single-use paper mask on April 6, 2020. Ex. 14, Decl. 14 ¶ 5. The Jail does not provide replacements—including to symptomatic prisoners who remain in general population.
72 Ex. 17, Decl. 17 ¶ 7. 73 See Ex. 32, Benninger Decl.¶ 2(E) (“CDC has recommended wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain, especially in areas of significant community-based transmission. . . .Cloth face masks should be laundered before each daily use.”)
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Before this, symptomatic prisoners who remained in general population did not have masks at all.74
121. In the Medical Unit, the jail provides a mask to some prisoners with suspected or confirmed cases of COVID-19, but it does not provide them with replacements. Ex. 10, Decl. 10 ¶ 17 (“All we have are little worn-out paper face masks. I’ve had the same facemask since [the previous Friday, eight days prior to the declaration], and we’re all breathing the same air.”).
122. In early April, medical staff began taking every prisoner’s temperature twice a day. But the checks are not conducted in every housing unit. And as implemented, the checks are further opportunities for infection: the temperature reader is not cleaned between uses, Ex. 24, Decl. 24 ¶ 8, and the medical staff do not change their gloves, Ex. 25, Decl. 25 ¶12.
123. The checks have also been conducted without regard to social distancing guidelines. When they began, prisoners lined up back to front, with no space between them, to have their temperatures taken. Ex. 10, Decl. 10 ¶ 5. In recent days, prisoners have instead been asked to put their heads through the slot in the cell door.
124. At these temperature checks, some prisoners with fevers are sent to the Medical Unit. Some are returned to their housing unit that same night. Ex. 10, Decl. 10 ¶ 10.
125. Prisoners with symptoms of COVID-19 who do not have fevers are not taken to medical.75
74 Ex. 5, John Doe No. 2 ¶6 (“The masks that were provided are the disposable paper kind, but we are not being given replacement masks, we have to continue to use the same mask without any way to sanitize the mask.”); Ex. 8, John Doe No. 5 Decl. ¶ 6 (“Usually four to six people go to Medical Unit per day—and not always the same people. When people return from the Medical Unit, their masks may be on or off. There is no consistency.”). 75 Ex. 18, Decl. 18 ¶5 (“[I]f detainees only display symptoms without a high temperature, they remain on the unit in general population.”).
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126. But even some who do have fevers are told to remain in general housing. For example, Declarant 10 is a prisoner with high blood pressure and seizures. Ex. 10, Decl. 10 ¶ 3. Even when Declarant 10 had COVID-19 symptoms and a fever, jail staff did not take him to the Medical Unit:
“[O]n Friday, April 3, I started to have symptoms. I could feel aches in my spine and kidneys, and my body had fevers and chills. One minute I would feel like I’m freezing, and the next I’m heating up and my forehead is sweating. I also had diarrhea. And when I would drink liquids, my eye sockets would hurt. I started feeling shortness of breath. My nose was running, and I had a terrible headache. . . . At lunchtime on April 3, when they lined us up to take our temperatures, mine was 100 degrees. I told the nurse I wasn’t feeling right. But she told me, “you’ll be alright,” and left. At around 5:00 p.m. or 6:00 p.m., I started to have real difficulty breathing and my body was really aching and causing me a lot of pain. They told me to hold on and wait until the medical staff returned at 9:00 p.m. So I had no choice but to wait. That evening, when the medical staff came back again to take everyone’s temperature, mine was 104 degrees. They made me step to one side, along with four other guys, and then we all went to the medical unit around 11:00 p.m. They kept three of us, and sent two back to the housing unit.”76
127. Declarant 10 tested positive for Covid-19. Ex. 10, Decl. 10 ¶ 2. 128. Once a prisoner has tested positive for COVID-19, the CDC recommends careful attention to that prisoner’s contacts. Every person who has been within six feet of that prisoner should be placed in a 14-day quarantine. Ex. 36, CDC at 14. 129. However, jail staff do not affirmatively quarantine, isolate, or even inform prisoners when a person who lives within six feet of them has COVID-19 symptoms or even tests positive for the virus—even when that person is the prisoner’s cellmate.
76 Ex. 10, Decl. 10 ¶¶ 9–10.
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130. Nor do they disinfect cells where symptomatic or COVID-positive prisoners have lived.77
131. Indeed, jail staff—including even medical staff—do not appear to know which prisoners have tested positive for the virus.78
E. The Jail’s Limited Containment Methods Are Ineffective and Counterproductive
132. Instead of implementing the CDC’s recommendations to prevent COVID-19, at
the beginning of April, the Jail implemented a universal, preemptive lockdown of all prisoners.
133. Under the lockdown policy, prisoners must remain in their cells for 23 hours per
day.
134. Prisoner have one hour (which may be at 1:30 a.m. or some other odd hour) of
“recreation,” which is prisoners’ only chance to shower, go outside, or use the phones to call their attorneys79 or their families (if they are awake).80
135. Some jail guards also require prisoners to use that hour to clean their cells.
77 Ex. 7, John Doe No. 4 Decl. ¶6 (“My cell mate went to medical at 8 o’clock last night and he hasn’t come back. He was not feeling well he had a headache and stomach ache. When my cellie left last night, the staff did not do anything to disinfect my cell. I am waiting to get rec-time because that is the only time I can get cleaning supplies.”); id. (“I have seen 3 inmates leave on this unit so far, and not come back. … One was across the hall 3 or 4 days ago, he went to medical, his stuff is still in his cell. The guy across the way—his cell was within 5 feet of our cell.”). 78 Ex. 11, Decl. 11 ¶10 (“I told them that my cellmate had been in the medical unit for six days. That’s when they looked into things and realized that my cellmate had tested positive, so they had to test me too.”). 79 The prisoners’ limited time for phone use has also hindered contact with their attorneys. See Ex. 29, Glenn Decl. ¶¶ 16–22. This is particularly challenging given the pandemic-related delays in state court criminal cases. See generally Ex. 28, Schneller Decl. 80 Ex. 7, John Doe No. 4 Decl. ¶ 14 (“You can’t really talk to your family at 1 o’clock in the morning, my kids are asleep.).
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136. The lockdown appears to have no end date short of the pandemic’s end.
137. The CDC does not recommend preemptive lockdowns of all prisoners.
138. Instead, it recommends that correctional facilities achieve social distancing by, for
example, “[r]earranging seating in the dining hall so that there is more space between individuals,”
and “[c]onsider[ing] alternatives to existing group activities, in outdoor areas or other areas where
individuals can spread out.” Ex. 36, CDC at 11.
139. And it only recommends something akin to lockdown—that housing units
“quarantine in place”—when there is “contact with a case from the same housing unit” and that all
quarantines—including this sort—last for just 14 days. Ex. 36, CDC at 19.
140. Other public health experts recommend the same: time-limited lockdowns used only as necessary for quarantine and contact tracing.81
141. Experts also warn that preemptive lockdowns like those at the Jail are ineffective
and counterproductive in preventing the spread of COVID-19.
142. Indeed, on lockdown, opportunities for infection abound.
81 Ex. 30, Meyer Decl. ¶ 27 (“Lockdown can be important from a public health standpoint to enable social distancing during a pandemic but should be used only as a last resort and in a timelimited way (CDC recommends quarantines last no longer than 14 days) that is communicated clearly to the residents”); David Cloud, Dallas Augustine, and Brie Williams, The Ethical Use of Medical Isolation—Not Solitary Confinement—to Reduce COVID-19 Transmission in Correctional Settings, Amend at 3 (Apr. 7, 2020), available at https://amend.us/wpcontent/uploads/2020/04/Medical-Isolation-vs-Solitary_Amend.pdf [hereinafter “Medical Isolation—Not Solitary”] (“Corrections officials should only require people on an entire housing unit to stay in their cells (“Lockdown”) if medical professionals determine a symptomatic persons resides or works on that unit or contract tracing flags a confirmed or suspected case. In this event, time-limitations must be clearly communicated to residents and staff.”); Ex. 34, Haney Decl. ¶ 29 (“[T]he Jail should institute … lockdowns only where medically necessary to resolve discrete issues, such as sanitizing dorms or contact tracing of an infected prisoner. If the [Jail] resorts to these lockdowns, it should do so in a reasonably time-limited manner and communicate that timelimit to the prisoners who are affected.”).
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143. Most prisoners live with cellmates in hot, poorly ventilated cells.82 Even prisoners in different cells are less than six feet apart.
144. Thus, the lockdown policy—especially in combination with the Jail’s failure to medically isolate those with symptoms of COVID-19—traps prisoners in close proximity to people who may be sick. See Ex. 36, CDC at 19 (warning that quarantining prisoners together “could transmit COVID-19 from those who are infected to those who are uninfected.”); Ex. 30, Meyer Decl. ¶ 30 (stating that sustained lockdowns are “particularly problematic when inmates are locked down in poorly ventilated spaces that are shared closely with others, which may contribute to disease transmission from people who are infected with COVID-19 but have not yet reported symptoms.”).
145. For example, Plaintiff John Doe No. 2, who has severe asthma for which he has been hospitalized, is locked down with his cellmate, who has lost his sense of smell and taste (a symptom of COVID-19). Ex. 4, John Doe No. 2 Decl. ¶ 22; see also Ex. 7, John Doe No. 4 Decl. ¶ 14 ([I]t’s really bad when you can’t get come out of a cell for 23 hours I’m really scared now because my cellie has been sick.”); Ex. 17, Decl. 17 ¶ 6 (“My cellmate has been coughing and sneezing. They have us locked in 23 hours a day with 1 hour of recreation time. There is no way for my cellmate and I to distance ourselves from each other.”).
146. The Jail’s preemptive lockdown is counter-productive in other ways as well. Because prisoners’ one hour of out-of-cell time is their only chance to call their attorneys and families, they congregate by the phones (which are close together and rarely, if ever, cleaned).83
82 Ex. 5, John Doe No. 2 Decl. ¶12 (“It’s very hot in the cells. For the 23 hours we are in our cells a day, the cell door is kept closed. There is no noticeable air circulation, and the rest of the unit is very hot as well. The staff keeps the door to the recreation yard propped open.”); Ex. 1, Seth Decl. ¶ 94 (I am not getting good air circulation in the cell[.]”). 83 Ex. 30, Meyer Decl. ¶ 30 (observing that under the Jail’s preemptive lockdown policy, “[w]ith only 1 hour per day to use phones, it may be hard to enforce social distancing since prisoners need
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147. The lockdown also “decreases the interactions that prisoners have with correctional
and healthcare staff members, compromising the latter’s ability to identify symptoms,” further
ensuring that infected prisoners will remain in general population where they can spread the virus. Ex. 34, Haney Decl. ¶ 30.84
F. The Jail’s Conditions Increase the Risk of Severe Illness and Death 148. In addition to accelerating the COVID-19 outbreak, the Jail has also increased the
risk that those who are infected will suffer serious illness, permanent physical damage, and death.
149. Sick prisoners in general population lack access to medical care.
150. “Sick call” (a request for medical attention) costs $4, and some cannot afford to
pay. Some housing units have run out of sick call slips entirely. Ex. 19, Decl. 19 ¶ 6.
151. This prevents even prisoners who are medically vulnerable and have symptoms of
COVID-19 from seeking care.
152. For example, Plaintiff Seth explained:
“For about a week or two I have been experiencing shortage of breath and coughing. . . . About four days ago, I asked to get into the medical unit but they make you pay $4 for the form and I don’t have money for that. I am losing my sense of taste, I have hot chips that I eat and do not taste the hotness. It feels like my taste buds are numb. I have had diarrhea for about a week. . . . About two days ago I decided I should probably go to the medical unit. But I decided not to ask because I do not have the money for the form.”85
to congregate to use this precious resource”); Ex. 34, Haney Decl. ¶ 30 (“During th[e] limited one hour of out-of-cell time [under the Jail’s preemptive lockdown policy], prisoners crowd together to use the limited shared resources. . . . As a result, they are unable to maintain the recommended six feet of social distancing.”). 84 See Medical Isolation—Not Solitary at 2 (warning that “preemptively placing entire units on ‘lockdown’ for indefinite amounts of time” will likely mean that “interactions with correctional staff an healthcare staff often become less frequent and people with symptoms may go undetected”). 85 Ex. 1, Seth Decl. ¶¶ 9–11.
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153. Mr. Seth was also deterred from seeking care because so many prisoners with symptoms of COVID-19 were unable to get it at the Jail. He explains: “I know one guy who had a fever and they kept him for three days and sent him back. Another guy I know lost his sense of taste and his stomach hurt, but medical sent him back.” Ex. 1, Seth Decl. ¶ 11.
154. Moreover, as Mr. Seth’s experience demonstrates, the Jail has no plan for specially protecting medically vulnerable prisoners from COVID-19 or monitoring them if they become symptomatic.
155. Many prisoners with symptoms of COVID-19 cannot get medical attention for other reasons.
156. Jail staff has told prisoners that medical care is limited to emergency cases.86 157. Some prisoners who have made sick calls were seen by medical staff weeks later or not at all. For example, John Doe No. 2, who has previously been hospitalized for his severe asthma, told jail staff that he has asthma, was spitting up brown mucus, and was having trouble breathing. He was not taken to the medical unit for two weeks. Ex. 5, John Doe No. 2 ¶5; see also Ex. 19, Decl. 19 ¶ 6 (stating on April 9, 2020: “I first put in for sick call on March 23rd and I haven’t heard anything.”). 158. People who need medical care for anything other than COVID-19 generally cannot get it. Jail staff has told prisoners that they cannot receive medical services because the medical unit is locked down. Ex. 2, Smith Decl. ¶ 15. 159. Prisoners who made a sick call that was not about COVID-19 were told by corrections officers “that if it’s nothing relating to Corona not to write to medical.” Id.
86 Ex. 26, Decl. 26 ¶¶ 6–7 (“I was told my case was not serious enough to have additional care, and that the Medical Unit is only seeing emergency cases.”); Ex. 19, Decl. 19 ¶ 6 (“The guards have told me that they’re not bringing anyone down unless it’s an emergency.”).
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160. Prisoners who had lived in the medical unit due to chronic medical concerns have been transferred out.87
161. And many prisoners have been unable to obtain or change their medications— including prisoners with pre-existing conditions like asthma, which make them especially vulnerable to serious illness and death if they do become infected with COVID-19.88
162. Prisoners’ mental health is also at great risk. 163. Dr. Craig Haney, a psychologist and expert on prison isolation,89 has concluded that the punitive isolation methods that dominate the Jail’s approach to COVID-19 “greatly increase the psychological stress under which prisoners live, potentially leading to mental and physical deterioration, interpersonal conflicts, and self-harm and suicidality.” Ex. 34, Haney Decl. ¶ 20.90 164. As Dr. Haney explains, “The Prince George’s County Jail lockdown units are now being used in ways that are essentially identical to the solitary confinement-type housing that has
87 Ex. 6, John Doe No. 3 Decl. ¶ 4 (“When I first entered the Detention Center, I was placed in the Medical Unit. I have numerous medical issues, including neck and back issues, I walk with a cane, and I am currently having kidney issues, including blood in my urine. I was moved from the Medical Unit about halfway through my thirty-day incarceration, and I do not know why, but it may be because it was getting more crowded in the Medical Unit.”). 88 Ex. 2, Smith Decl. ¶ 15 (“I take medication and they haven’t consulted me to change the medication because I don’t like the side effects it gives me.”). 89 See Ex. 35, Haney Curriculum Vitae. 90 See also Medical Isolation—Not Solitary at 3 (“Research shows that keeping people socially isolated in a closed cell without a meaningful opportunity to communicate with family, friends, and loved ones or to participate in exercise, education, and rehabilitative programming (solitary confinement) causes immense, and often irreparable, psychological harm.”); Ex. 32, Benninger Decl. ¶ 3(J) (“I have concern that there has not been sufficient acknowledgement of or attention to the inmates’ mental health under the stressors of pandemic and solitary confinement.”).
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been shown to place prisoners at significant risk of grave harm (including damage that is permanent, even fatal).” Id. ¶ 20.91
165. Moreover, the Jail has discontinued mental health services.92 This places prisoners with mental illness who are isolated “at grave risk of decompensation.” Id. ¶ 24.93
166. These policies also threaten physical harm; “the extraordinary stress of social isolation under these especially onerous conditions” may “depress prisoners’ immune systems and render them even more vulnerable to the COVID-19 virus, and less able to combat it if and when they contract it.” Ex. 36, Haney Decl. ¶ 26; see also Ex. 30, Meyer Decl. ¶ 36 (“Failure to provide adequate mental health care . . . as appears to be the case at the Prince George’s County Jail, will result in poor health outcomes.).
91 Ex. 34, Haney Decl. ¶ 20 (“The fact that prisoners are double-celled during these lockdowns [in the general housing units] does not mitigate the negative effects of their essentially around-theclock in-cell confinement. In fact, double-celling may exacerbate these effects because of the interpersonal tensions and stressors that such unavoidably close around-the-clock contact generates.”). 92 Ex. 30, Meyer Decl. ¶ 36 (“People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention.”). 93 Even in less extreme forms of isolation than those imposed at the Jail, the CDC Guidance recommends efforts to mitigate the mental health consequences of any necessary medical isolation. See, e.g., Ex. 36, CDC Guidance at 12 (“[I]f group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.”); id. at 13 (“Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health.”); id. at 14–15 (recommending that, since “visitation is important to maintain mental health,” 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.”). The Jail has done none of this.
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G. The Jail Has Failed to Effectively Manage Positive Cases of COVID-19 167. In addition to the Jail’s failure to implement basic, CDC-recommended protocols
to prevent the spread of the virus, the Jail has also failed to provide adequate care to prisoners who
have tested positive for the virus.
168. Prisoners who are transferred to the Medical Unit to be tested for COVID-19 are
placed in medical isolation cells. The cells are filthy. The walls are covered in mucus, feces, and
blood.94
169. Prisoners are terrified of being placed there, and they downplay their COVID-19
symptoms to avoid it.95
170. Prisoners must remain in these cells until the results of their COVID-19 tests come
back. This can take up to five days. During this time, prisoners have no access to basic personal
94 Ex. 11, Decl. 11 ¶ 18 (“The isolation cells have mucus, feces, blood, old food, urine, spit, everything you can name on the walls. . . . Someone should come and take pictures of these cells, they’re disgusting.”); Ex. 10, Decl. 10 ¶ 11 (“The isolation cell they put me in has mucus and blood dried all around the walls, 360 degrees. I wish you could come and take pictures of it. When I say mucus and blood on the walls, I mean it – thick yellow, some green, some yellow with red blood in it. I can also tell someone was bleeding in that isolation cell, because there is blood all along the floor under the bed.”); Ex. 12, Decl. 12 ¶ 7 (“I was put in isolation cell number [redacted], which was not clean. It has feces and blood on the walls. The sink was stopped up too, so I couldn’t really use the water.”).
95 Ex. 12, Decl. 12 ¶ 14 (“I think a lot of guys are having symptoms, but are fearful of being stuck in the medical unit on total lock-down. They’re more afraid of how they’ll be treated in the medical unit than they are of their symptoms, so they downplay things so they can go back to the housing unit where they have access to showers and phones and stuff like that.”); Ex. 10, Decl. 10 ¶ 25 “Some people are trying to hide their symptoms, because they don’t want to be punished in the medical unit. … So a lot of people are just trying to tough it out, but it’s spreading it. My cellmate was sneezing and coughing when I left him. I’ve seen people in the kitchen unit sneezing as they prepare food.”); Ex. 9, Decl. 9 ¶ 21 (“Some guys on the unit seem to have the virus, but they are scared to get tested, because they don’t want to get stuck in the medical unit like I am. They’d rather just let their bodies fight it off.”); Ex. 17, Decl. 17 ¶ 8 (“A lot of people in the unit who are coughing and sneezing have said they are trying to suppress it because they don’t want to go to the medical unit because of the way people there are being treated.”).
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hygiene products: they have no soap and no toothbrush. They are not allowed to shower. They cannot change their clothes, even as they are soaked in sweat.96
171. They have no access to phones, no reading material, and no mental health services. 172. A nurse visits each prisoner three times per day to take his temperature and deliver medication and food trays. But the prisoners there cannot contact them (or anyone else) on their own, even in a medical emergency. Ex. 12, Decl. 12 ¶ 9 (“In the isolation cell, there was no way for us to notify someone if we were having an emergency, except to get up and bang on the door and hope that someone could hear you.”). 173. Medically vulnerable prisoners suspected of having COVID-19 are held in the same isolation cells in the same abject conditions. There does not appear to be any plan for their care in light of the particular dangers they face if infected. 174. A prisoner who tests positive for COVID-19 is transferred from the isolation cell to a 10-man cell for COVID-positive prisoners in the medical unit. Starting on April 11, 2020, the Jail also began using isolation units in Housing Unit 6 (H-6). There is no special location, plan, or care for medically vulnerable prisoners who have COVID-19.
96 Ex. 11, Decl. 11 ¶ 12 (“I was still wearing those same clothes I was sweating in, for five days. They didn’t give me clean clothes until April 6, and they haven’t allowed any of us to take a shower.”); Ex. 12, Decl. 12 ¶ 8 (“I was in the isolation cell for five days before I was even given a wash cloth or a toothbrush.”).
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175. The 10-man cell is dirty. For fear of contracting COVID-19, jail guards will not remove the trash bags, which are filled with vomit and spit.97 The floor is covered with tissues, hair balls, spiders, and bugs.98
176. Jail staff will not enter the room to fill the water cooler. The prisoners are told that if they are thirsty, they can drink from the sink.99 When jail guards do bring something to the prisoners in the cell, they throw it through the door.100
177. Prisoners in the 10-person cell also lack basic hygiene products. Many do not have
soap or have to share a single bar with others. Some have not had toothbrushes or toothpaste for
over a week. They are still not allowed to shower. All of the sick men share a single, mildewed
97 Ex. 10, Decl. 10 ¶ 23 (“There’s also a pile of trash building up inside of our unit, which they won’t take away. There are fumes from guys getting sick in those trash bags, there’s spit on top of it and in it, and the trash is just closed in here with us.”); Ex. 9, Decl. 9 ¶ 19 (“[O]ur trash is piled up in bags that they won’t take away since we’ve been over here. The COs refuse to get close to us and they say that anything that goes in, can’t come back out.”) 98 Ex. 11, Decl. 11 ¶ 19 (“There’s spiders and other bugs. It’s nasty. There’s piles of dust under the beds. It hasn’t been cleaned since god knows when.”); Ex. 9, Decl. 9 ¶ 19 (“There’s lint balls and tissues and paper towels on the floor. There are spiders and centipedes, one guy just killed another spider while I’m talking to you on the phone.”); Ex. 10, Decl. 10 ¶ 17 (“[T]here’s dust and hair balls all around the floor in our cell.”). 99 Ex. 11, Decl. 11 ¶ 20 (“It’s supposed to be a water cooler for us, but it’s empty. They’re scared to come and refill it, they’re scared to even come and get the trash.”); Ex. 9, Decl. 9 ¶20 (“There’s an orange water cooler in here with us, but it’s empty because the COs refuse to fill it with ice and clean water.”). 100 Ex. 10, Decl. 10 ¶ 14 “When we really need something, the staff will open the door, and throw stuff at us through the door. It makes me feel like an animal.”; Ex. 11, Decl. 11 ¶ 21 (“There’s a pile of trash right now in the ten-man cell right next to the empty water cooler. It’s supposed to be a water cooler for us, but it’s empty. They’re scared to come and refill it, they’re scared to even come and get the trash. They treat us like animals, like they’re afraid to come near us. And anything they do give us, they throw to us like we’re animals, like we’re nothing.”).
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sink. Prisoners may go five or six days without being able to change their clothes or underwear.
101 There are no mental health services.
178. COVID-positive prisoners who are housed on H-6 are held alone in cells. Ex. 11,
Decl. 11 ¶ 35. They have no access to phones and nothing to read. They too have no mental health
services.
179. There is no jail guard on H-6 with the prisoners. Ex. 9, Decl. 9 ¶ 6. The only time
the prisoners there see anyone is when a guard comes to deliver their food. A nurse comes at the
same time.
180. The cells in H6 have call buttons that prisoners can use to talk to the corrections
officer in the unit’s command center bubble. Ex. 9, Decl. 9 ¶ 31.
181. Sometimes, either the call button does not work or no one answers it. One prisoner
in H-6 heard another kicking his door because the guards would not answer his call button. No
101 Ex. 11, Decl. 11 ¶ 20 (“They gave me one bar of soap, but not everyone in here with me even has a bar of soap. Some guys don’t have toothbrushes or toothpaste either, some say they haven’t had a toothbrush or toothpaste in a week.”); id. (“We ask for showers, but they say we can’t take a shower. They tell us to wash in the sink, but there’s just one sink that all nine of us have to use.”); id. (“We’ve got the same clothes on for five or six days, the same underwear for five or six days. I’m still wearing the same drawers since Thursday, and they look nasty. They’re turning black.”); Ex. 10, Decl. 10 ¶ 15 (“They won’t let us shower, either. We have only one working sink, and I’m sharing it with everyone in here. There are currently ten men in this cell, the maximum. We’ve all got to take turns washing up in that one sink. Although they gave me a bar of soap on April 6, I didn’t get a toothbrush or toothpaste until April 9. I requested it and requested it, but I didn’t get it. I didn’t have any toothbrush or toothpaste between April 3 and April 9.”); Ex. 9, Decl. 9 ¶ 17 (“They tell us to be clean with soap and hygiene, but they don’t give us any hygiene products. It took four or five days before they gave me a hygiene kit in the medical unit. Before then, I had no soap, toothbrush, toothpaste, or deodorant to keep myself clean. I asked them many times, but the COs would play with us and tell us we didn’t need a hygiene kit. Finally the nurse went to the Sergeant and told him what was going on, and the Sergeant got us our hygiene kits.”); id. ¶ 18 (“I also have not been allowed to use the shower since being moved to the medical unit. I have not had a shower in nearly two weeks, not since Thursday, March 26. Instead, I have been forced to wash myself as best I can in a dirty, mildewed sink. In the isolation cell, I had a bar of soap for myself, but now in the ten-man cell I have to share the sink and bar of soap with the other men in here.”); Ex. 12, Decl. 12 ¶ 12 “I haven’t had a shower since Thursday, March 26.”).
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jail staff checked on the other prisoner. He does not know what happened to the man who was kicking his door. Id.
182. The same prisoner worries that even if the button works, in a medical emergency he might not be able to press it. He explained, “I have a seizure disease. If I were to have a seizure, I wouldn’t be able to push the button. No COs are in the housing unit, so no one would hear what was going on. I’m afraid that if I have a seizure in here, no one will hear it and I will die. . . . They’re not really doing anything to protect any of us in here.” Ex. 9, Decl. 9 ¶¶ 31–32.
H. The Jail Maintains an Overdetention Policy for Prisoners with COVID-19 183. Although the Jail has failed to control the outbreak within its walls by not following clear public health guidance, it has resorted to unlawful means to control the virus’s spread outside of them: the Jail refuses to release COVID-positive prisoners who have paid bail (or are otherwise legally entitled to release) until it deems them non-contagious. 184. Accordingly, one prisoner who paid his bond on April 3, 2020—but tested positive for COVID-19 on the same day—was illegally imprisoned in the cohorted isolation cell in the Jail for fourteen days. Ex. 29, Glenn Decl. ¶ 24. 185. He was not released until April 16, 2020. Id. 186. Had he been released when he paid his bond on April 3rd, he would have sought treatment for COVID-19 at a local hospital. Id. I. The Jail’s Continued Use of Indefinite Lockdown 187. Since Plaintiffs filed this Complaint on April 21, 2020, the indefinite lockdown has continued at the Jail. This is the fourth month of the lockdown. 188. Detainees at the Jail continue to be locked down for 22 or, more commonly, 23 hours per days in their cells.
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189. In mid-to-late June and early July, more than 80 detainees in ten different housing units reported that they receive only one to two hours out of their cells each day.
190. Of those, more than 65 reported that they receive only one hour out of their cells and are locked in their cells for 23 hours each day. A smaller portion reported that they receive one to two hours per day, depending on the corrections officers or how crowded the unit is, and a small portion reported that they receive two hours per day.
191. Of the prisoners who receive two hours out of their cells, many report that the second hour began in the last week of June. They receive the second hour at a different time from the first (potentially in the middle of the night).
192. However, like detainees who receive only one hour of out-of-cell time, those who receive a second hour out of their cells often receive it inconsistently.
193. Out-of-cell time may be offered in the middle of the night, at 1 or 2 in the morning. For those who receive only one hour of out-of-cell time, this means that it is impossible to reach counsel or loved ones that day.
194. At times, prisoners go more than a day without any out-of-cell time at all—48 or 72 hours might pass without it. And in some units, detainees are routinely given less than an hour of time out of their cells. In H6, where the Jail has housed COVID-positive prisoners, an hour of out-of-cell time has been offered only once every other day.
195. The cells in which detainees in general housing spent 22 to 23 hours per day are approximately 70 square feet.
196. A prisoner’s hour (or maybe two) of out-of-cell is his only opportunity to use the phones to call family or his attorney, to shower, to access cleaning products for his cell, and to spend any time outside.
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197. During prisoners’ out-of-cell time, prisoners crowd by the phones, since it is their only opportunity to contact family or counsel.
198. In most units, there are not enough working phones for everyone to use one, and so prisoners rush or even run to the phones to get to them. While using the phones, prisoners are regularly sitting shoulder to shoulder, inches apart. As one prisoner described it, “The phone area is crowded with bodies.”
199. Although many would prefer to practice social distancing, they do not because their out-of-cell time is their only opportunity to use the phones at all. This amplifies their anxiety about infection, but detainees feel that they have no choice but use the phones in their rare opportunities to do so, despite the risk that comes with it.
200. The small outdoor recreation area—a very small concrete square with concrete walls and no ceiling—is not always available to prisoners, even during out-of-cell time (and if it were, prisoners often have no time in that hour to use it between using the phones, showering, and accessing cleaning supplies and cleaning their cells). Often, they cannot access it for days at a time. Even so, given its size, it would be impossible for all (or even many) of the 10 detainees the Jail allows out of their cells at any given time to spend time there during their out-of-cell time and also maintain social distancing.
201. The lockdown policy includes no accommodations for detainees with serious mental health conditions. The Jail detains numerous people who have mental illnesses, including psychotic illness, depression, anxiety, post-traumatic stress disorder, and bipolar disorder. Some detainees are currently part of a special mental health docket for the court, and some are awaiting competency evaluations or have been deemed incompetent. They too are locked in their cells for 22 or 23 hours per day.
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202. Mental health services are limited or nonexistent. Most detainees have received no mental health treatment at all.
203. Of the detainees who have pre-existing mental health conditions that require medication, the vast majority report that they receive the medication at the front of their cells and may be asked whether the medication is working, but they receive no other mental health services, such as confidential therapeutic services.102
204. Moreover, the Jail does not—and apparently has no plan to—assess or otherwise check on detainees to determine whether they are experiencing the psychological and physiological consequences of solitary confinement, including whether a detainee is at risk of (or already is) decompensating.
205. Access to reading materials is limited or non-existent. Many detainees cannot access any reading materials at all.
206. In the units where reading material is available, most share a single newspaper for all prisoners in the unit and may have a small number of books that were taken from the Jail’s library before the pandemic began (but have not been changed out since). Detainees often beg corrections officers for reading materials—but receive them only when the officer decides to oblige. Detainees do not have access to the law library. And some are permitted reading materials only during their out-of-cell time
207. For the exclusively Spanish-speaking detainees at the Jail, even where books are occasionally available, they cannot read them because the books are in English.
102 The Fourth Circuit recently found a substantial risk of serious harm under the Eighth Amendment where detainees under a 23-24 hour lockdown policy were visited by case counselors daily and mental health professionals once per week. See Porter v. Clarke, 923 F.3d 348, 354 (4th Cir. 2019).
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208. While in their cells, prisoners are given no audio players, television, tablets, or other materials for entertainment or stimulation.
209. Because of this, prisoners locked in their cells often have nothing but their thoughts. Even for solitary confinement policies, this deprivation is particularly stark.103
210. Prisoners’ social contact is limited to a cellmate (if they have one, which many do not), and very brief, front-of-cell checks a couple of times a day. Other than this, they are alone.104
211. The lockdown’s duration remains indefinite. 212. This indefinite timeline is particularly daunting because most trials have been continued because of the pandemic; as a result, prisoners are spending longer terms in the Jail. 213. Detainees are suffering the lockdown’s effects. Many are increasingly anxious, depressed, and suicidal. Some simply report that they feel like they are going crazy. 214. These effects are amplified by the restrictions in place during the pandemic, such as the cessation of visitation, the continuance of their trials and other court dates (resulting in more time spent detained pre-trial), greatly reduced access to counsel, and their limited ability to contact their family members by phone—which is particularly stressful as many of detainees’ loved ones are suffering the economic consequences of the pandemic or have actually been infected, and all are at risk of infection.
103 See Porter, 923 F.3d at 353-54 (4th Cir. 2019) (finding that solitary confinement policy created a substantial risk of serious harm where prisoners were locked down for 23-24 hours per day but, while in their cells, prisoners could keep a television and compact disc player in their cells, could borrow books from the library to request, and could request and use wireless telephones any day of the week between 8 am and 9:30 pm). 104 See Porter, 923 F.3d at 353-54 (4th Cir. 2019) (noting, in assessing solitary confinement conditions, that contact with correctional staff was “limited” where prisoners under solitary confinement were given security checks by corrections officers every thirty minutes, had twice daily visits from medical staff and nurses, daily visits with a case counselor, and a weekly visits from a mental health professional).
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215. Lockdown’s psychological effects are also exacerbated in these circumstances given the baseline increase in anxiety prisoners have about the pandemic, including the fear that they will die at the Jail without being able to say goodbye to their families.
216. In many cases, the lockdown may have the effect of prolonging prisoners’ imprisonment at the Jail. For example, many detainees have been authorized for release by a court, but only if they comply with their mental health medications. Placing these detainees under conditions that routinely result in severe psychological symptoms (particularly while failing to provide appropriate mental health treatment) makes compliance—and thus release—less likely. And as a general matter, detainees’ reduced access to their attorneys makes it more challenge to press their cases in ways that could lead to release, such as bond reconsideration motions. See Rettamel Decl. ¶ 6 (Doc. 44-1 at 123).
217. A robust body of empirical evidence sets forth the psychological and physical harms that frequently result from solitary confinement conditions like the lockdown at the Jail, in which prisoners are locked down for 22 to 23 hours per day.
218. This scientific evidence has been repeatedly credited by federal courts, including the Fourth Circuit. See Porter v. Clarke, 923 F. 3d 348, 355-57 (4th Cir. 2019) (describing this evidence and multiple court’ recognition of it, and relying on it to find that a solitary confinement policy imposed an objective risk of serious harm under the Eighth Amendment).
219. Specifically, scientific research documents that solitary confinement conditions like those at the Jail under lockdown consistently result in serious psychological and physiological harms. See Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique, 47 Crime & Justice 365, 367-68, 370-75 (2018) (collecting studies); Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325, 335-38 (2006).
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220. As Dr. Craig Haney105 explains, the lockdown conditions at the Jail “greatly increase the psychological stress under which prisoners live, potentially leading to mental and physical deterioration, interpersonal conflicts, and self-harm and suicidality.” Haney Decl. ¶ 20 (Doc. 2-1 at 209).
221. Psychological injuries may include cognitive dysfunction, paranoia, panic, severe depression, hallucination, memory loss, insomnia, and stimuli hypersensitivity. See Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325, 335-36, 348, 370-71 (2006).
222. Prisoners in solitary confinement also frequently engage in life threatening behavior, such as self-mutilation and suicidality. Id. at 349; see also Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences: Hearing Before the Subcomm. on Constitution, Civil Rights & Human Rights of the S. Comm. on the Judiciary, 112th Cong. 72, 80-81 (2012) (statement of Craig Haney).
223. These effects are particularly severe for prisoners with pre-existing mental health conditions, who “are particularly likely to decompensate, suffer worsening depression, and even engage in self-harming and suicidal behavior in response to social isolation.” Haney Decl. ¶ 23 (Doc. 2-1 at 209).
224. Moreover, because they are denied appropriate mental health care while on lockdown, including confidential treatment, psychologically vulnerable prisoners in particular are “at grave risk of decompensation.” Haney Decl. ¶ 24 (Doc. 2-1 at 209).
105 Dr. Haney’s research on solitary confinement has been cited by numerous federal courts, including, recently, the Fourth Circuit, see Porter v. Clarke, 923 F.3d 348, 356 (4th Cir. 2019), as amended (May 6, 2019).
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225. Physiological injuries also consistently result from solitary confinement conditions like those at the Jail. These may include decreased inflammatory control, a decline in neural activity, hypertension, heart palpitations, gastrointestinal disorders, severe insomnia, and dementia. Elizabeth Bennion, Banning the Bing: Why Extreme Solitary Confinement Is Cruel and Far Too Usual Punishment, 90 IND. L.J. 741, 762 (2015); Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, 34 Crime & Just. 441, 488-90 (2006).
226. And as neuroendocrinologist and Stanford University Professor Robert Sapolsky explained, the severe stress caused by the Jail’s lockdown conditions is also likely to depress immune response and increase the risk of severe illness and death from COVID-19. See Sapolsky Decl. ¶¶ 33, 39 (Doc. 41-1 at 83-84, 85); accord Haney Decl ¶ 26 (Doc. 2-1 at 209).
227. For those prisoners who have cellmates, “The fact that prisoners are double-celled during the[] lockdown[] does not mitigate the effects of their essentially around-the-clock-in-cell confinement. In fact, it may exacerbate these effects because of the interpersonal tensions and stressors that such unavoidably close around-the-clock contact generates.” Haney Decl. ¶ 20 (Doc. 2-1 at 209).106
106 See also Madrid v. Gomez, 889 F. Supp. 1146, 1229–30 (N.D. Cal. 1995) (“Roughly two-thirds of the inmates are double celled; however, this does not compensate for the otherwise severe level of social isolation in the SHU. The combination of being in extremely close proximity with one other person, while other avenues for normal social interaction are virtually precluded, often makes any long-term, normal relationship with the cellmate impossible. Instead, two persons housed together in this type of forced, constant intimacy have an enormously high risk of becoming paranoid, hostile, and potentially violent towards each other. The existence of a cellmate is thus unlikely to provide an opportunity for sustained positive or normal social contact.”) (citations omitted); Order, Georgia Advocacy Office v. Jackson, No. 1:19-CV-1634-WMR-RDC, Doc. 65 (S.D. Ga. July 23, 2019) (granting preliminary injunction to remedy solitary confinement conditions in which prisoners were double celled).
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228. The consequences of solitary confinement manifest after even relatively short timeperiods. “Notwithstanding that scholars have conducted dozens of studies on the psychological and emotional effects of solitary and segregated confinement, the leading survey of the literature regarding such confinement found that there is not a single published study of solitary or supermax-like confinement in which nonvoluntary confinement lasted for longer than 10 days, where participants were unable to terminate their isolation at will, that failed to result in negative psychological effects.” Porter v. Clarke, 923 F.3d 348, 356 (4th Cir. 2019), as amended (May 6, 2019) (quotations omitted); see also Peoples v. Annucci, 180 F. Supp. 3d 294, 299 (S.D.N.Y. 2016) (“After even relatively brief periods of solitary confinement, inmates have exhibited symptoms such as hypersensitivity to stimuli, perceptual distortions and hallucinations, increased anxiety, lack of impulse control, severe and chronic depression, appetite and weight loss, heart palpitations, sleep problems, and depressed brain functioning”).
229. Although short terms of solitary confinement impose high risks of psychological and physiological harm, longer and indefinite terms of solitary confinement conditions have even greater effects. See, e.g., Terry A. Kupers, Waiting Alone to Die, in Living on Death Row: The Psychology of Waiting to Die 47, 54 (Hans Toch & James Acker eds., 2018).
230. Defendant knew that implementing a generalized lockdown procedure— particularly during a pandemic and while visitation is suspended—would harm detainees.
231. Indeed, on March 26, 2020, just before the lockdown was implemented a Deputy Director of the Department of Corrections said, in an email to all Department staff, “With the existing elevated state of anxiety among inmates and staff, it would be more harmful to isolate inmates.” Doc. 37-22 at 39-40.
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232. Moreover, risk of psychological and physiological harms imposed by the Jail’s lockdown have been repeatedly and explicitly enumerated by Plaintiffs and by experts during this litigation.
233. Nevertheless, the lockdown persists. 234. The indefinite lockdown currently in place at the Jail is not subject to the procedural protections normally afforded to prisoners who are placed on lockdown or other status with limited privileges. 235. According to the Inmate Handbook, prisoners at the Jail who are assigned to special housing status—including maximum security housing or protective custody—will have their status reviewed by the Special Housing Board every seven days for the first two months and every thirty days thereafter. 236. The handbook states that prisoners on disciplinary restriction, who are defined as inmates placed on lockdown to maintain control and safety, may appeal their placement there. And as a general matter, prisoners may request a review of their classification status (which determines housing placement) at any time. 237. However, there is apparently no plan to end the preemptive, generalized lockdown before the pandemic ends.107 238. There is also no plan to, as the CDC Guidance and other public health experts recommend, limit lockdown to prisoners who require quarantine and to the time-period necessary for that quarantine to be effective (the CDC recommends 14 days). See supra ¶¶ 139-40.
107 There is no consensus about when or how the COVID-19 pandemic will end, but public health officials note that if an effective vaccine is developed, it may be available, at the earliest, by early 2021.
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239. Despite this, if the Jail wishes to enact social distancing, there are numerous alternatives to lockdown that the Jail can employ, but is not. These alternatives (unlike preemptive, indefinite lockdown) are recommended by the CDC Guidance. See supra ¶¶ 137-38 (enumerating options to enact social distancing).
240. Critically, throughout the pandemic and the lockdown, the Jail has failed—and continues to fail—to enact meaningful social distancing measures. Prisoners remain crowded together in (for examples) the Jail’s courtroom, in small rooms and hallways, and by the phones. Indeed, the lockdown exacerbates the problem of social distancing by the phones. Thus, prisoners must suffer the effects of the lockdown without actually benefiting from social distancing.
241. All of the exhibits cited in and attached to this Complaint are incorporated by reference.
CLASS ACTION ALLEGATIONS 242. Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, the individual named Plaintiffs seek to certify two classes with one subclass as follows:  The Pretrial Class is defined as “all people detained in the Prince George’s County Jail who are not detained pursuant to a judgment of conviction.”  The Post-Conviction Class is defined as “all people detained in the Prince George’s County Jail who are detained pursuant to a judgment of conviction.”  The Medically Vulnerable Subclass is defined as “all Pretrial Class members whose medical condition renders them especially vulnerable to the coronavirus as determined by guidelines promulgated by the Centers for Disease Control and Prevention.”108
108 See U.S. Centers for Disease Control and Prevention, People Who Are At Higher Risk (last reviewed Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html.
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243. The class allegations and law are set forth in more detail in the accompanying motion for class certification.
244. A class action is the only practicable means by which the individual named Plaintiffs and the class members can challenge Defendant’s unconstitutional actions. Many members of the class are without the means to retain an attorney to represent them in a civil rights lawsuit.
245. The classes and subclass are so numerous that joinder of all members is impractical. The number of people in custody exceeds 500. Demographic data regarding the health of correctional populations, which is set forth above, indicates that the Medically Vulnerable Subclass consists of at least 50 of people (and likely many more).109
246. There are questions of law and fact common to all class members and the subclass, including, among many others:
a. Do the Jail’s conditions create a substantial risk that the people in its custody will be infected with COVID-19?
b. Do the Jail’s conditions create a substantial risk that the people in its custody who are infected with COVID-19 will face serious illness, long-term physical damage, or death?
c. If Defendant McDonough acting with deliberate indifference to these risks?
109 A sizeable percentage of the jail population is likely medically vulnerable to COVID-19. According to one study, “asthma prevalence is 30%–60% higher among individuals with a history of incarceration as compared with the general population.” Elizabeth M. Vigilanto et al., Mass Incarceration and Pulmonary Health: Guidance for Clinicians, 15 Ann. Am. Thoracic Soc. 409, 409 (2019). Another study estimates that up to 15% of people who are in custody have asthma, 10% of people in custody live with a heart condition that requires medical care, 10% live with diabetes, and 30% have hypertension. See Laura M. Marushack et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, U.S. Dept. of Justice (2014).
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d. Is the risk of harm posed by the Jail’s conditions so severe and so immediate that the only adequate remedy is release?
247. The claims of the class representatives are typical of the claims of the classes and of the subclass. That typicality stems from their claim that Defendant McDonough has placed them at significant risk of serious harm by failing to take appropriate steps to address the risk of COVID-19 in the Jail. Every person at the Jail faces a heightened risk of risk of contracting COVID-19 and facing serious illness, physical injury, or death if Defendant does not adequately protected them.
248. The claims of the Medically Vulnerable Subclass representatives are typical of the subclass members as well, as each member is subject to increased risk of substantial harm or death due to their existing medical conditions.
249. The individual named Plaintiffs will fairly and adequately represent the interests of the classes and subclass. The named Plaintiffs have no conflicts with the unnamed members of the proposed classes. In addition, their lawyers are experienced in federal court civil rights class actions, particularly those involving prisons and jails.
250. Defendant McDonough has failed to act in a manner that applies generally to the classes and subclass as a whole, rendering class-wide injunctive and declaratory relief appropriate.
COUNT I 42 U.S.C. § 1983 (on behalf of all Class members) Eighth and Fourteenth Amendments: Jail Conditions 251. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 252. Plaintiffs and the classes they represent have been deprived and continue to be deprived by the Defendant of their rights under the Eighth and Fourteenth Amendments to
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reasonably safe living conditions. Defendant McDonough is aware of the substantial risk of harm that COVID-19 poses to all individuals, and she is further aware of the particular risks of severe illness and possible death that Plaintiffs face as a result of the conditions in the Prince George’s County Jail. Despite this knowledge, Defendant has failed to take reasonable measures to mitigate these dangers.
253. As a result of Defendant’s actions and inactions, class members face a substantial risk of contracting COVID-19 and sustaining a serious illness that could lead to death.
254. Defendant’s failure to take appropriate steps to curb the substantial threat posed by COVID-19 to each person in his custody, as described more fully above, violates Plaintiff’s rights to unreasonable risk of death and bodily harm.
255. Consequently, Defendant is in continuous violation of these Plaintiffs’ rights and the rights of the members of the subclasses under the Eighth and Fourteenth Amendments to the United States Constitution.
256. Plaintiffs seek injunctive and declaratory relief against Defendant McDonough to prevent the continued violation of the rights of Plaintiffs and the classes they represent.
COUNT II 42 U.S.C. § 1983 (on behalf of all Class members)
Fourteenth Amendment: Overdetention 257. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 258. Defendant’s policy of detaining COVID-positive people in the Jail who are legally entitled to release violates the Fourteenth Amendment. 259. As a result of Defendant’s actions and inactions, class members face a substantial risk of harm in the form of unlawful detention.
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260. All members of both classes are actively seeking to be legally entitled to release, whether by paying bail, acquittal, early release, or some other means. All are at imminent risk of contracting COVID-19. If these class members become legally entitled to release and test positive for COVID-19, the Jail may detain them beyond the date at which they are entitled to release.
261. Plaintiffs seek injunctive and declaratory relief against Defendant McDonough to prevent the violation of the rights of Plaintiffs and the classes they represent.
COUNT III Petition for Writs of Habeas Corpus Pursuant to 28 U.S.C. § 2241
(on behalf of Medically Vulnerable Subclass) 262. Medically Vulnerable Petitioners repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 263. Medically Vulnerable Petitioners are not in custody pursuant to a judgment of conviction of a state court. They are all pretrial detainees, presumed innocent. 264. Respondent McDonough is holding Medically Vulnerable Petitioners in custody in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. 265. Due Process forbids exposing Petitioners to a severe risk of death, pain, or permanent severe injury, and there are presently no options available to mitigate that risk quickly enough to protect them other than immediate release from custody.
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COUNT IV 42 U.S.C. § 1983 (on behalf of all Class members) Eighth and Fourteenth Amendments: Solitary Confinement 266. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 267. Plaintiffs and the classes they represent have been deprived and continue to be deprived by the Defendant of their rights under the Eighth and Fourteenth Amendments to reasonably safe living conditions. 268. Defendant McDonough is aware of the substantial risk of psychological and physiological harm that the Jail’s indefinite lockdown policy imposes on prisoners but has kept the policy in place for months with no plan to end it. Moreover, Defendant has done so despite the availability of other, more effective means of enacting social distancing. 269. As a result of Defendant’s actions and inactions, class members face a substantial risk of psychological and physiological harm. 270. Consequently, Defendant is in continuous violation of these Plaintiffs’ rights and the rights of the members of the subclasses under the Eighth and Fourteenth Amendments to the United States Constitution. 271. Plaintiffs seek injunctive and declaratory relief against Defendant McDonough to prevent the continued violation of the rights of Plaintiffs and the classes they represent.
COUNT V 42 U.S.C. § 1983 (on behalf of all Class members) Fourteenth Amendment Due Process: Solitary Confinement 272. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count.
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273. Plaintiffs and the classes they represent have been deprived and continue to be deprived by the Defendant of their state-created liberty interests under the Fourteenth Amendment without due process.
274. Despite the Jail’s policies by which a prisoner may normally challenge his placement in solitary confinement conditions, prisoners at the Jail have been placed in such conditions for months and for an indefinite time period.
275. These conditions constitute an atypical and significant hardship relative to the ordinary incidents of prison life.
276. The Jail lacks any process for determining whether a particular detainee must be placed in these conditions or when these conditions, as a general matter or in a particular housing unit, may end.
277. Consequently, Defendant is in continuous violation of these Plaintiffs’ rights and the rights of the members of the subclasses under the Fourteenth Amendment to the United States Constitution.
278. Plaintiffs seek injunctive and declaratory relief against Defendant McDonough to prevent the continued violation of the rights of Plaintiffs and the classes they represent.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs on behalf of themselves and the classes they seek to represent, request that this Court enter judgment in their favor and against Defendant McDonough and order the following relief: a. Issue a temporary restraining order, preliminary injunction, and final judgment for all
Class members requiring Defendant McDonough to implement constitutionally sufficient procedures to protect their health and safety that are consistent with CDC
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guidelines and the expert judgment of correctional health specialists, including but not limited to:
i. Effectively communicate to all prisoners, including low-literacy and nonEnglish-speaking people, sufficient information about COVID-19, measures to reduce the risk of transmission, and any other information necessary to reasonably ensure that these individuals are aware of what precautions they can take to prevent infection;
ii. Ensure that each prisoner receives, free of charge: (1) an individual supply of liquid hand soap and paper towels sufficient to allow frequent hand washing and drying each day; (2) tissues, and (3) adequate access to a supply of cleaning and disinfectant products effective against COVID-19 to allow for cleanings of frequently-touched surfaces several times per day;
iii. Clean and disinfect frequently-touched surfaces in common areas several times per day, including phones;
iv. Waive all fees for sick call for the duration of this pandemic; v. Provide adequate medical care to prisoners, whether because of COVID-19
symptoms, chronic health conditions, or any other medical issue; vi. Create and enact social distancing policies that allow for adequate spacing
of six feet or more between prisoners; vii. Ensure that prisoners have adequate access to phones to contact counsel
and/or family members such that prisoners need not congregate at the phones;
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viii. Provide appropriate Personal Protective Equipment (PPE) to prisoners and Jail staff according to the CDC’s recommendations, and receive appropriate instruction about how to don and doff it;
ix. End preemptive lockdown procedure in general population and instead impose appropriate time-limited quarantines, with that time limit clearly communicated to prisoners, only when necessary due to a known or suspected case of COVID-19, as recommended by medical and public health professionals;
x. Implement appropriate quarantining and medical isolation procedures as recommended by the CDC Guidance;
xi. To the extent a prisoner must enter lockdown or isolation to effectuate an appropriate quarantine or medical isolation procedure, provide appropriate mental health services, and, if that prisoner has a mental health condition, provide enhanced psychological services in these circumstances;
xii. Provide appropriate mental health services to all prisoners; xiii. Ensure that isolation, cohorted isolation, and quarantine cells are reasonably
clean and sanitary, and that prisoners in them receive adequate medical monitoring, adequate hygiene products, reading material, reasonable access to phones, a daily change of clothes, and the opportunity to shower once daily; xiv. Immediately create and implement a plan that complies with CDC Guidance to minimize transmission to and provide adequate medical monitoring and care to prisoners who are medically vulnerable to COVID-19;
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xv. Immediately end the policy and practice of detaining COVID-positive people in the Jail who are legally entitled to release.
b. To the extent it is necessary to ensure constitutionally sufficient procedures or to protect certain prisoners’ constitutional rights, order Defendant McDonough to transfer prisoners to home detention or another appropriate facility;
c. Order immediate release pursuant to a writ or writs of habeas corpus for members of the Medically Vulnerable Subclass;
d. If this Court does not immediately release the Medically Vulnerable Subclass, consider subclass members for release on non-monetary bond pending the outcome of their request for habeas relief;
e. Issue an order and judgment granting reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988 and 28 U.S.C § 2241; and
f. Grant such other relief as this Court deems just and proper.

Dated: July 3, 2020, 2020

Respectfully submitted,
By: s/Katherine Chamblee-Ryan Katherine Chamblee-Ryan (pro hac vice) Olevia Boykin (pro hac vice) Ryan Downer (pro hac vice) CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Suite 800 Washington, DC 20009 katie@civilrightscorps.org Phone: (610) 931-7715
Edward Williams (Bar No. 20944) Cadene Russell Brooks (pro hac vice) WILMER CUTLER PICKERING
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Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 58 of 59 HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 ed.williams@wilmerhale.com Phone: (202) 663-6487 Attorneys for Plaintiffs
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Case 8:20-cv-01028-PX Document 124 Filed 07/07/20 Page 59 of 59 Certificate of Service
I, Katherine Chamblee-Ryan, an attorney, hereby certify that on July 3, 2020, I caused a copy of the foregoing to be filed using the Court’s CM/ECF system. I further certify that I, or another one of Plaintiffs’ attorneys, will promptly serve a copy of the same on General Counsel for the Prince George’s County Department of Corrections’ Office via email.
/s/Katherine Chamblee-Ryan
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Case 8:20-cv-01028-PX Document 124-1 Filed 07/07/20 Page 1 of 60

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

KEITH SETH, DAVID SMITH, MARIO BURCH, and JOHN DOES 1–5, Individually and on behalf of a class of similarly situated persons,
Plaintiffs-Petitioners,
v.
MARY LOU MCDONOUGH, In her official capacity as Director of the Prince George’s County Department of Corrections,
Defendant-Respondent.

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Case No. 8:20-cv-01028-PX

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FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
AND PETITION FOR WRITS OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 22411
STATEMENT OF THE CASE2
1. There is an uncontrolled outbreak of COVID-19 at the Prince George’s County Jail
(“the Jail”).3
1 The Parties agreed to permit amended pleadings filed no later than July 3, 2020 in their July 1, 2020, Joint Status Report (Doc No. 117) and this Court affirmed that filing deadline at the July 2, 2020 Status Hearing. See Fed. R. Civ. P. 15(a)(2) (permitting amended pleading’s with opposing party’s consent or court order). 2 The following allegations in paragraphs 2-186 describe the state of the Prince George’s County Jail (“the Jail”) at the time Plaintiffs filed their Complaint on April 21, 2020. 3 Since Defendant McDonough is being sued in her official capacity, “Defendant McDonough” and “the Jail” are used interchangeably in this motion.

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2. The Jail’s actions fueled this outbreak, and it has also failed to take appropriate action in response.
3. The prisoners4 housed there—predominantly pretrial detainees—are under a constant and substantial threat of contracting the disease, and those already infected receive grossly substandard medical treatment (if they receive treatment at all).
4. Because jails, prisons, and other detention and correctional facilities are particularly vulnerable to COVID-19, the U.S. Centers for Disease Control and Prevention (CDC) has recommended basic measures these facilities should take to control the spread of the virus and treat infected prisoners—for example, providing prisoners with free access to soap and evaluating prisoners for symptoms.
5. The Jail has ignored these and other public health recommendations. 6. As a result, the nearly 600 people now imprisoned at the Jail are denied even the minimal precautions necessary to mitigate against the risks of COVID-19. 7. The people confined in the Jail do not have adequate soap (the Jail charges money for it). They regularly wait a week or more for medical attention (that costs money too). The spaces they share with other prisoners are not adequately sanitized. They are denied basic hygienic supplies. Symptomatic inmates are regularly turned away by medical staff, returning to general housing where they will surely infect others. 8. Prisoners who test positive for COVID-19 are confined in filthy isolation cells, where the walls are covered in feces, mucus, and blood. They are barely monitored and receive no real treatment.
4 For simplicity, the term “prisoner” is used throughout to describe the people who are currently incarcerated at the Prince George’s County Jail, both pretrial and post-conviction.
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9. By maintaining these conditions, Defendant McDonough has needlessly exposed the people imprisoned in the Jail to a highly infectious and potentially fatal disease. This violates prisoners’ Eighth and Fourteenth Amendment rights.
10. The Jail also refuses to release COVID-positive prisoners—even when they have no legal basis to detain them—until the Jail deems them non-contagious. This violates prisoners’ Fourteenth Amendment rights.
11. Plaintiffs5 seek class-wide relief requiring the Jail to take the necessary steps to safeguard prisoners’ health and safety. A subset of Plaintiffs also request a writ of habeas corpus pursuant to 28 U.S.C. § 2241 for prisoners whose age or underlying medical conditions make them particularly vulnerable to severe illness and death from COVID-19 (the “Medically Vulnerable Subclass”).
JURISDICTION AND VENUE 12. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a), and 2241(a). This Court has jurisdiction over Medically Vulnerable Subclass’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 13. Venue is proper in this District under 28 U.S.C. § 1391(b) because the events giving rise to the claims asserted in this complaint occurred in this District.
PARTIES 14. Plaintiff Keith Seth is detained pretrial in Housing Unit 17 at the Prince George’s County Jail. He has chronic bronchitis for which he was hospitalized last year. He is currently experiencing symptoms of COVID-19, including loss of taste, diarrhea, coughing and severe
5 The term “Plaintiff(s)” includes the Medically Vulnerable Subclass members, who are also petitioners seeking habeas relief.
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shortness of breath. He cannot afford to pay the money required to request medical assistance. Mr. Seth has bipolar disorder; since the outbreak at the Jail, he has not received needed mental health treatment. See Ex. 1, Seth Decl. Mr. Seth filed a bond motion on April 8, 2019. It is still pending.
15. Plaintiff David Smith is detained pretrial in Housing Unit 9 at the Prince George’s County Jail. He suffers from chronic bronchitis. Since the outbreak, the Jail has not provided Mr. Smith with needed mental health treatment. See Ex. 2, Smith Decl. Mr. Smith filed a motion for bond reconsideration on April 8, 2020. That motion is scheduled for a hearing on April 24, 2020.
16. Plaintiff Mario Burch is detained pretrial in Housing Unit 8 at the Prince George’s County Jail. He has not seen anyone clean or sanitize any surfaces in his unit. He is “extremely scared of contracting the virus.” Ex. 3, Burch Decl. Mr. Burch’s bond was originally set at $3000, but he could not afford to purchase his release. On April 9, 2020, the court revoked his bond. He is facing two charges, each of which has a statutory maximum sentence of 90 days.
17. Plaintiff John Doe No. 16 is detained pretrial in Housing Unit 10 at the Prince George’s County Jail. He suffers from acute asthma. He has recently experienced symptoms of COVID-19: headaches, nausea, and shortness of breath. His cellmate also has symptoms of COVID-19. See Ex. 4, John Doe No. 1 Decl. On March 19, 2020, a court approved Mr. Doe No. 1 be released on home detention with GPS monitoring. The Pretrial Services Agency (“pretrial services”), which is part of the Department of Corrections, has not released him.
18. Plaintiff John Doe No. 2 is detained post-conviction in Housing Unit 17 (the work unit) at the Prince George’s County Jail. He suffers from severe asthma, for which he previously has been hospitalized. He has been spitting up brown mucus and having trouble breathing. Mr. Doe No. 2 has asked for medical attention or a test for COVID-19, but he was refused and told
6 John Doe Nos. 1-5 will seek leave to proceed by pseudonym. 4

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that the Medical Unit is too full. He asked for an inhaler, but his request was denied. On April 9, Mr. Doe No. 2 filed a motion requesting to serve his sentence on home detention. His motion has not been set for a hearing. See Ex. 5, John Doe No. 2 Decl.
19. Plaintiff John Doe No. 3 is detained pretrial in the Prince George’s County Jail. He uses a cane to walk and has numerous medical issues. Prior to the outbreak, Mr. Doe was housed in the Medical Unit. In late March, he was transferred to Housing Unit 11-B, which houses medically vulnerable prisoners, but (unlike the Medical Unit) does not have any on-site medical equipment or staff. He is currently experiencing sneezing and a cough. See Ex. 6, Decl. John Doe. No. 3 Decl. On April 9, 2020, a court approved Mr. Doe No. 3 for release to pretrial services. Pretrial services has not released him. Mr. Doe No. 3 is detained on a single count of violating a protective order, which carries a statutory maximum of 90 days.
20. Plaintiff John Doe No. 4 is detained pretrial in Housing Unit 9 at the Prince George’s County Jail. At least four detainees from Housing Unit 9 have been sent to the Medical Unit and not come back. One of them was his cellmate. See Ex. 7, John Doe No. 4 Decl. A court has approved Mr. Doe No. 4 for transfer to home detention, but pretrial services has not transferred him to home detention.
21. Plaintiff John Doe No. 5 is detained in Housing Unit 8 of the Prince George’s County Jail. He has asthma, chronic bronchitis, and is obese. Due to the poor circulation in his cell, he has been having difficulty breathing. Many people on his unit seem sick. See Ex. 8, John Doe No. 5 Decl. A court set bond for Mr. Doe No. 5 at $3000, with an option to be released upon paying 10 percent of it. Mr. Doe No. 5 cannot afford to purchase his release. The court has also approved Mr. Doe No. 5 for pretrial supervised release. Pretrial services has not released him.
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22. Defendant Mary Lou McDonough is the Director of the Prince George’s County Department of Corrections. She is sued in her official capacity.
FACTUAL ALLEGATIONS A. COVID-19 Is Highly Infectious and Dangerous 23. On March 11, 2020, the World Health Organization (“WHO”) declared the outbreak of COVID-19 a global pandemic.7 24. States and counties across the nation have hurried to take the “urgent and aggressive action” the WHO deems necessary to slow the infection rate of the virus.8 25. Still, to date, more than 750,000 Americans are known have contracted COVID-19 and it has caused at least 35,000 deaths.9 26. D.C., Maryland and Virginia have reported more than 24,000 cases,10 and Maryland leads the region in both the number of cases and deaths: In the 46 days11 following Maryland’s
7 World Health Organization, Director-General Opening Remarks (March 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-themediabriefing-on-covid-19---11-march-2020. 8 Id. 9 U.S. Map, Johns Hopkins School of Medicine (updated April 20, 2020) https://coronavirus.jhu.edu/us-map. 10 Jenna Portnoy, Patricia Sullivan, and Antonio Olivo, Coronavirus in the DMV: What you need to know, Wash. Post (Apr. 19, 2020) https://www.washingtonpost.com/dc-mdva/2020/03/07/maryland-virginia-dc-coronavirus/?arc404=true#maryland. 11 Jenna Fulginiti, Tramon Lucas, and Greg Ng, Timeline: Coronavirus in Maryland, WBALTV (Apr. 19, 2020) https://www.wbaltv.com/article/timeline-coronavirus-in-maryland/31394971#.
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first three confirmed cases, 12,836 people have tested positive for the disease and 544 people have died.12
27. COVID-19 is highly contagious. An infected person can spread the virus through brief, indirect contact with others. Every time an infected person coughs, sneezes, or speaks, she might pass the virus to those in her vicinity.13
28. The virus can survive on inanimate surfaces like cardboard, plastic or steel for up to three days.14 The respiratory droplets from an infected individual can linger in the air for as many as three hours.15
29. An unknown number of infected people are nearly or entirely asymptomatic. This means a person who has contracted the virus can pass it to others without knowing she is sick. Accordingly, some researchers insist, “Everyone should act as if they are already infected.”16
30. For those who contract COVID-19, the results can be dire.

12 Portnoy, supra note 7.
13 Ex. 30, Meyer Decl. ¶ 8 (“The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces.”). See also Ex. 31, Meyer Curriculum Vitae.

14 Neeltje van Doremalen et al., Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, New England J. Medicine (March 17, 2020), https://www.nejm.org/doi/full/10.1056/NEJMc2004973.

15 Ex. 32, Benninger Decl. ¶ 2(C); see also Ex. 33, Benninger Curriculum Vitae.

16 Nina Bai, Coronavirus Is Sickening Young Adults and Spreading Through Them, Experts Say,

University

of

California

San

Francisco

(Mar.

20,

2020)

https://www.ucsf.edu/news/2020/03/416961/coronavirus-sickening-young-adults-and-spreading-

through-them-experts-say.

7

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31. An estimated sixteen percent of those who contract it will suffer severe illness. Ex. 30, Meyer Decl. ¶ 9.
32. In the United States, roughly three percent of those who are infected die. Ex. 32, Benninger Decl. ¶ 2(G)(i).
33. Twenty percent of those who contract COVID-19 will need hospitalization, and five percent will require intensive care. Id. ¶ 2(F).
34. Those who survive the virus may suffer long-term damage to the heart, liver, and lungs.17
35. These risks of severe illness and death are more acute for people who are over a certain age or who have pre-existing conditions, including asthma, lung disease, heart disease, and diabetes.18
36. Without effective public health measures, the U.S. Centers for Disease Control and Prevention (CDC) has projected that over 200 million people could be infected.19

17 Melissa Healy, Coronavirus infection may cause lasting damage throughout the body, doctors

fear, L.A. Times (April 10, 2020), https://www.latimes.com/science/story/2020-04-

10/coronavirus-infection-can-do-lasting-damage-to-the-heart-liver (describing studies finding

impaired liver function and heart failure in COVID-19 patients); Panagis Galiatsatos, What

Coronavirus

Does

to

the

Lungs,

Hopkins

Medicine,

https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/what-coronavirus-

does-to-the-lungs (describing potential long-term lung damage from COVID-19).

18 Centers for Disease Control, At Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-

ncov/need-extra-precautions/groups-at-higher-risk.html (last reviewed Apr. 15, 2020).

19 James Glanz, et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say,

N.Y.

Times

(Mar.

20,

2020),

available

at

https://www.nytimes.com/interactive/2020/03/20/us/coronavirus-model-us-outbreak.html.

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37. This would overrun the healthcare system, making it impossible for many critically ill people to receive the care they need to live.20
38. To prevent this, the shape of daily life for most Americans has radically changed: 97 percent of the U.S. population is now subject to some degree of imposed shutdown or stay athome decree.21
39. On March 30, Maryland Governor Larry Hogan issued a stay-at-home order, mandating that residents may leave their homes only as needed to work essential jobs or complete essential tasks, like purchasing food and medicine.22
40. On the same day, D.C. Mayor Muriel Bowser and Virginia Governor Ralph Northam announced stay-at-home orders that require residents to stay in their homes and cease all non-essential activities until May 15, 202023 and June 10, 2020,24 respectively.

20 Leana Wen, Hospitals are overwhelmed because of the coronavirus. Here’s how to help., N.Y. Times (Mar. 15, 2020), https://www.washingtonpost.com/opinions/2020/03/15/hospitals-areoverwhelmed-because-coronavirus-heres-how-help; see also Ex. 30, Meyer Decl. ¶ 10 (“Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.”).

21 All Your Coronavirus Questions Answered, Time (Apr. 14, 2020), https://time.com/5820118/coronavirus-questions-answered.

22 The Office of Governor Larry Hogan, As COVID-19 Crisis Escalates in Capital Region, Governor Hogan Issues Stay at Home Order Effective Tonight (Mar. 30, 2020) https://governor.maryland.gov/2020/03/30/as-covid-19-crisis-escalates-in-capital-regiongovernor-hogan-issues-stay-at-home-order-effective-tonight.
23 On April 15, Mayor Bowser announced that the D.C. order would extend until May 15. Marty Johnson, DC extends stay-at-home order through May 15, The Hill (Apr. 15, 2020) https://thehill.com/homenews/state-watch/492928-dc-extends-stay-at-home-order-through-may15.

24 Executive Order Number 55, Temporary Stay At Home Order Due to Novel Coronavirus

(COVID-19)

(Mar.

30,

2020)

https://www.governor.virginia.gov/media/governorvirginiagov/executive-actions/EO-55-

Temporary-Stay-at-Home-Order-Due-to-Novel-Coronavirus-(COVID-19).pdf

9

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41. Even with these extreme measures, which have been replicated across the country, the national infection curve “has not yet flattened,”25 and data suggests that, for D.C., Maryland and Virginia, the peak of the virus may be weeks or months away.
42. The University of Pennsylvania Medicine’s COVID-19 Hospital Impact Model for Epidemics predicts that the regional peak of COVID-19 infections and deaths will occur in late June or early July.26
43. Though it may be difficult for those who have already spent weeks at home to fathom, the best evidence indicates that D.C., Maryland, and Virginia are at only “the end of the beginning” of this crisis.27

25 All Your Coronavirus Questions Answered, supra note 19.

26 Jeffrey Katz and Martin Austermule, How Close Is The D.C. Region To Flattening 'The Curve'

Of

The

Coronavirus?,

NPR

(Apr.

10,

2020)

https://www.npr.org/local/305/2020/04/10/831751001/how-close-is-the-d-c-region-to-flattening-

the-curve-of-the-coronavirus.

27 Brad McMillan, A Coronavirus Milestone: The Flattening Of The Curve, Forbes (Apr. 14, 2020) https://www.forbes.com/sites/bradmcmillan/2020/04/14/a-coronavirus-milestone-the-flatteningof-the-curve/#71bc0f3e4ba5.

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B. COVID-19 is Causing a Crisis in Prince George’s County 44. Prince George’s County is the “epicenter of [the COVID-19 epidemic in] the state.”28 45. As of April 14, the County had 2356 confirmed cases and 72 deaths.29 Though Prince George’s County makes up only 15 percent of the state’s population, its COVID-19 deaths have made up nearly 25 percent of the total COVID-19 deaths in the state of Maryland.30 46. The County has high rates of diabetes, heart disease, hypertension and obesity— conditions that make one more vulnerable to complications from the virus.31 The County has had a shortage of healthcare provider shortage for years. Up to 60 percent of residents travel out-ofcounty for care.32 47. In addition, in recent weeks, medical professionals across the country have seen racial disparities in COVID-19 infection, hospitalization, and mortality rates.33 Black people who
28 Rachel Chason, Hospitals in Prince George’s seeing an influx of critically ill coronavirus patients, Washington Post (Apr. 14, 2020), https://www.washingtonpost.com/local/princegeorges-hospitals-coronavirus-crisis/2020/04/14/2ac05724-7e7f-11ea-904068981f488eed_story.html. 29 Id. 30 Fulguniti, supra note 9. 31 Regional Primary Care Coalition, The Healthcare Landscape in Prince George’s County: Opportunities for Improvement, available at http://www.regionalprimarycare.org/wpcontent/uploads/2018/07/The-Healthcare-Landscape-in-Prince-Georges-County.pdf. 32 Id. At 9. 33 John Eligon, et al., Black Americans Face Alarming Rates of Coronavirus Infection in Some States, N.Y. Times (Apr. 7, 2020), https://www.nytimes.com/2020/04/07/us/coronavirusrace.html.
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are infected are more likely to suffer severe illness and die.34 An analysis by the Washington Post found that majority-black counties had infection-rates three times that of majority-white counties.35
48. Accordingly, because the majority (64 percent) of Prince George’s County is Black, the people of Prince George’s County are more susceptible to COVID-19 than other counties across the state.
49. Area hospitals are “inundated with critically ill patients” and are at or exceeding their capacities.36
50. Beginning April 14, at least two County hospitals—Prince George’s Hospital and MedStar Southern Maryland Hospital Center—were forced to send patients to out-of-county hospitals because they had no room in their own critical care units, even though both hospitals have been rapidly adding beds within the facility and in tents outside of the building.37
34 Ex. 32, Benninger Decl. ¶ 2(h) (“Preliminary data suggest that African-Americans are suffering from more severe illness related to COVID-19 at higher rates than other races in the United States.”). 35 Reis Thebault, Andrew Ba Tran, and Vanessa Williams, The coronavirus is infecting and killing black Americans at an alarmingly high rate, Wash. Post (Apr. 7, 2020), https://www.washingtonpost.com/nation/2020/04/07/coronavirus-is-infecting-killing-blackamericans-an-alarmingly-high-rate-post-analysis-shows/?arc404=true. These disparities exist because other inequities and disparities do. Black people disproportionately hold jobs in which they are unable or not allowed to work from home, putting them at risk of contracting the virus on their way to or at work. Black people also have higher rates of the underlying medical conditions that CDC says put people at higher risk of severe illness from COVID-19. Id. 36 Chason supra note 26. 37 Id.
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51. On March 16, Prince George’s County Executive Angela Alsobrooks declared a state of emergency due to COVID-19.38
52. On April 7, Governor Larry Hogan flagged Prince George’s County, along with ten others, to the White House as needing “urgent federal attention.”39
53. In addition to Maryland’s statewide stay-at-home order, the County has instituted a number of efforts to slow the spread of the virus.
54. As early as March 12, 2020, the County announced that its Courthouse would close to the public until May 1, 2020.40
55. The Circuit Court and District Court issued orders outlining the limited operations courts would continue to perform.
56. On March 16, County Executive Alsobrooks closed all restaurants, movie theaters, gyms and bars, and closed to the public all government buildings.41

38 Office of the Prince George’s County Executive Angela D. Alsobrooks, County Executive Alsobrooks Officially Declares A State Of Emergency In Prince George’s County Due To Covid19 (Mar. 16, 2020) https://www.princegeorgescountymd.gov/ArchiveCenter/ViewFile/Item/3171 39 Andrea Swalec, White House Designates DC-Baltimore Area as an ‘Emerging Hot Spot’ for Coronavirus, Hogan Says, NBC Washington (Apr. 7, 2020) https://www.nbcwashington.com/news/local/white-house-has-designated-dc-baltimore-area-asemerging-hot-spot-for-virus-hogan-says/2266929.

40 Prince George’s County Courts, The Courthouse is closed to the Public through June 5, 2020,

due

to

the

Coronavirus

Pandemic

(Mar.

12,

2020)

https://www.princegeorgescourts.org/AlertCenter.aspx?AID=The-Courthouse-is-closed-to-the-

Public-t-22.

41 County Executive Official Declares A State of Emergency supra note 43.

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57. On April 10, the County announced on that it had set up a quarantine site for first
responders to “ensure[] they will not take the virus home to their families should they be exposed.”42
58. As of April 15, residents have been ordered to cover their faces when they go to the grocery store or the pharmacy, or when they the ride the County’s bus system.43
B. Jails and Prisons Are Exceedingly Vulnerable to COVID-19
59. Epidemics pose a heightened risk in jails, prisons, and detention centers.
60. These “[c]ongregate settings . . . allow for rapid spread of infectious diseases that
are transmitted from person to person.” Ex. 30, Meyer Decl. ¶ 16.
61. Diseases that spread in these facilities imperil the communities around them as well.44
62. At a time when it is imperative that the County flatten its curve, correctional facilities like Prince George’s County Jail “drive up the curve.”45
42 Prince George’s County, Community Connections Newsletter: COVID-19 Update (Apr. 10, 2020) https://content.govdelivery.com/accounts/MDPGC/bulletins/285c9ff. 43 Office Of The Prince George’s County Executive Angela D. Alsobrooks, County Executive Alsobrooks To Sign Executive Order Requiring Face Coverings For Patrons In Grocery Stores (Apr. 11, 2020) https://www.princegeorgescountymd.gov/DocumentCenter/View/29817/PressRelease---Face-Coverings. 44 Ex. 30, Meyer Decl. ¶ 16 (“Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. . . . Prison health is public health.”); see also Ex. 34, Haney Decl. ¶ 17 (“Staff members are at risk of having contracted COVID-19 and then transmitting it to all those inside the institutions, including prisoners and other staff.”). 45 Philip Jackson, Maryland jails are incubators for the coronavirus and precautions must be taken to avoid an outbreak, experts say, Baltimore Sun (Mar. 13, 2020) https://www.baltimoresun.com/coronavirus/bs-md-ci-coronavirus-maryland-jails-20200313zn4k2knuujgvnhqmpm63jib3la-story.html.
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63. Moreover, as a general matter, jails and prisons are often poorly equipped to enact adequate prevention measures and care for incarcerated people who get sick. Ex. 30, Meyer Decl. ¶¶ 17–18.
64. And because people incarcerated in jails and prisons are more likely to have chronic underlying health conditions, “they are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.” Id. ¶ 20.46
65. These concerns multiply in the face of COVID-19, which is both highly communicable and highly dangerous.
66. “Containing this virus has been difficult in the community and it is almost impossible in correctional health settings given the congregate environment.” Ex. 32, Benninger ¶ 3(B).47
67. As a result, “people will die behind bars of coronavirus who would have survived in the community.” Id.
C. There is a COVID-19 Outbreak at the Prince George’s County Jail
46 See Ex. 32, Benninger Decl. ¶ 3(c) (“[Prisoners] are higher risk at baseline than the general population for having more severe complications from COVID-19 because they are disproportionately more likely to be afflicted with medical chronic conditions, be obese, and be African-American. In addition, they are more susceptible to mental health complications, especially during this pandemic, because they are more likely to have mental health comorbidities and pandemics and isolation can increase feelings of anxiety and depression.”). 47 See also Ex. 30, Meyer Decl. ¶ 24 (“When even the most sophisticated hospital systems in this country have been overwhelmed by the COVID-19 pandemic, it will be impossible for prison health systems to contain it. This is especially true when emergency preparedness plans are underdeveloped.”).
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68. The first case of COVID-19 at the Prince George’s County Jail was reported on March 30, 2020.48
69. Addressing this case, Defendant DOC Director Mary Lou McDonough told The Washington Post, “I expect we’ll have more before this is over,” and compared jails to “cruise ships without the views or the amenities.”49
70. As Defendant McDonough explained, “A jail is a pretty transitory place. People are close together. You’re all breathing the same air.”50
71. Four days after the first case, on April 3, 2020, a total of three prisoners and one jail guard had tested positive for the virus.51
72. The DOC has not reported the number of COVID-19 cases at the jail since that date.
73. But the virus continues to spread.
48 Deb Belt, “Female Inmate at Prince George’s County Jail Has Coronavirus,” Patch.com (Mar. 30, 2020), https://patch.com/maryland/bowie/female-inmate-prince-georges-county-jail-hascoronavirus. 49 Keith L. Alexander, Dan Morse, and Spencer S. Hsu, “As inmates in D.C., Maryland and Virginia test positive for the coronavirus, jail officials scramble to reduce the risk,” Wash. Post (Apr. 1, 2020), https://www.washingtonpost.com/local/public-safety/as-inmates-in-dc-marylandand-virginia-test-positive-for-the-coronavirus-jail-officials-scramble-to-reduce-therisk/2020/04/01/b0d9cfd8-7363-11ea-85cb-8670579b863d_story.html. 50 Id. 51 Laura Wainman, “3 Inmates, 1 Correctional Officer at Prince Georges Department of Corrections Test Positive for Coronavirus,” WUSA9 (Apr. 3, 2020), https://www.wusa9.com/article/news/health/coronavirus/coronavirus-prince-georges-county-jailinmates-officer/65-b4e2051e-7b29-41e7-96f3-eb2a9473e038.
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74. Over the last month, prisoners have seen people removed from their housing units or reporting to the Medical Unit because of COVID-19 symptoms.52
75. Some jail guards are missing from their regular shifts.53 76. Many prisoners appear to be sick.54 From what they have been able to observe from their cells or the Medical Unit, Plaintiffs are aware of at least 14 prisoners with confirmed cases of COVID-19 across at least half of the jail’s ten adult housing units. 77. A jail guard told the prisoners in one housing unit that there are 77 cases of COVID19 at the jail. Ex. 8, John Doe No. 5 Decl. ¶ 13. 78. As one prisoner described it, “I feel like everyone in the unit is catching it. . . . [I]t seems like almost everyone is sick.” Ex. 21, Decl. 21 ¶12. D. The Jail Has Not Taken Basic Precautions to Prevent the Spread of COVID-19 79. On March, 23, the CDC issued explicit recommendations to correctional facilities about how to prevent or slow the spread of COVID-19. See Ex. 36, U.S. Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities (March 23, 2020).
52 Ex. 5, John Doe No. 2 Decl. ¶5 (“In the last 10 days at least six individuals have been removed from my housing unit because they were experiencing symptoms of the coronavirus, including my bunkmate.”); Ex. 25, Decl. 25¶16 (“I would guess at least six people from my unit alone, H17, have gotten infected.”); Ex. 15, Decl. 15 ¶6 (observing “more people going to the medical unit than was typical”); Ex. 24, Dec24 ¶4 (“Four people have left the unit and not returned.”). 53 Ex. 24, Decl. 24 ⁋4 (“Two of the regular officers for the evening shift have not been seen for a few weeks.”). 54 Ex. 15, Decl. 15 ¶6 (“I have heard many people coughing on the unit and in the last two weeks”); Ex. 24, Decl. 24 ¶4 (“There seems to be a flu or sickness spreading around the unit, for over 3 weeks now.”); Ex. 24, Decl. 24 ¶5 (“There are 82 people in my unit. Many of them are sick or have been sick.”).
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80. Many of these measures are basic. For example, corrections facilities should “[c]reate and test communications plans to disseminate critical information to incarcerated/detained persons, staff, etc. as the pandemic progresses.” Ex. 36, CDC at 5.
81. But the jail has not provided prisoners with information about COVID-19, its symptoms, or how to protect themselves from it.55
82. The CDC also provides clear guidelines on cleaning, disinfecting, and hygiene. Several times a day, staff should “clean and disinfect surfaces and objects that are frequently touched in common areas. Ex. 36, CDC at 9. Facilities should provide prisoners with “no-cost access” to “liquid soap” and “tissues.” Ex. 36, CDC at 10.
83. None of this happens at the Prince George’s County Jail. 84. Prisoners do not have liquid soap or hand sanitizer.56
55 Ex. 10, Decl. 10 ¶ 8 (“They never gave us any warning or any memorandum in our housing unit saying what was going on, what Coronavirus is, what you can do to protect yourself, what the symptoms are. We never saw one memorandum in our whole housing block. We were never told to stay six to ten feet away from people. Nothing. Of course, every time there’s a change to the phone system or the commissary system, we get a memorandum. But they never gave us a memorandum about Coronavirus.”); Ex. 11, Decl. 11¶ 8 (“They didn’t make any announcement or anything telling us about it, and the jail was being locked down more and more at that time.”); Ex. 22, Decl. 22 ¶ 5 (“The jail [has not been] specific about the symptoms.”). See also Ex. 32, Benninger Decl.¶ 3(I) (“Inmates are not being informed of jail policies regarding COVID-19. They have not received information in writing or verbally regarding COVID-19 or prevention strategies. They have not received guidance regarding social distancing. . . .Inmates are restricted from watching television news related to the nature of solitary confinement. Inmates do not have sufficient source of updated information regarding COVID-19.”) 56 See Ex. 36, CDC at 10 (recommending that inmates be provided no-cost access to liquid soap and, if possible, hand sanitizer).
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85. The jail gives prisoners one or two bars of soap when they first arrive.57 If prisoners
want soap after that, they can buy bar soap from the commissary. 58 Prisoners may only buy one
bar of soap per week. Ex. 8, John Doe No. 5 ¶ 17.
86. “If you don’t have money, you can’t buy soap[.]” Ex. 13, Decl. 13 ⁋ 9. Many
prisoners who cannot afford it do not have soap at all. Ex. 19, Decl. 19 ¶ 15. They “use only water
to try and wash themselves.” Ex. 3, Burch Decl. ¶ 7.59 Some trade food for soap.
87. Jail staff do not regularly clean and sanitize shared amenities or surfaces in the
housing units’ common areas.60
88. Phones are not regularly cleaned between uses. On some units, they are never
cleaned.61
57 Decl. 13 (Ex. 13) ¶ 9 (“I came in fairly recently, so I have a bar of soap, but many do not have adequate personal cleaning supplies.”); Ex. 3, Burch Decl. ¶ 7 (“I currently have one bar of soap that I received from the jail when I came in.”).
58 Ex. 15, Decl. 15 ¶ 9 (“[D]etainees with access to funds can buy soap from the Commissary for approximately $2.50 per bar.”). Hygiene kits also contain a bar of soap, along with toothpaste, a toothbrush, and deodorant; they can be purchased at the commissary for $9. Ex. 9, Decl. 9 ¶ 17.
59 Ex. 32, Benninger Decl.¶ 3(D) (“Inmates in medical isolation are experiencing significant delays, up to a week, in receiving hygiene items and soap. Inability to access soap is inappropriate during a pandemic.”)
60 Ex. 15, Decl. 15 ¶8 (“The only time surfaces and areas are cleaned down is the beginning of each shift. During the day, as people circulate within the housing unit, no steps are taken to wipe down shared surfaces. The staff clean their own areas such as their command desks but I have not seen them clean any other areas during shifts.”); Ex. 19, Decl. 19 ¶10 (“The unit is no cleaner now than it was before the outbreak.”); Ex. 3, Burch Decl. ¶9 (“I have not seen anyone clean or sanitize any surfaces in my housing unit.”); Ex. 18, Decl. 18 ¶16 (“During the day, as people circulate within the housing unit, no steps are taken to wipe down shared surfaces. I sometimes see staff wiping down surfaces, but these are generally just the desks or other surfaces that the staff regularly use – not the ones we detainees interact with.”).
61 Ex. 15, Decl. 15 ¶7 (“The phones are not cleaned between uses.”); Ex. 2, Smith Decl. ¶11 (“The phone is not getting wiped down between people using it.”); Ex. 23, Decl. 23 ¶12 (“To my knowledge, detail only cleans the phones once a day.”); Ex. 25, Decl. 25 ¶10 (“Generally, phones
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89. The cells of prisoners who have been transferred to the Medical Unit for COVID19 are left dirty and unsanitized for days, despite the fact that cells are shared.
90. Prisoners do not have their own cleaning supplies. They can request them—a spray bottle and paper towels (which are rationed)—to clean their own cells during their hour of recreation time.
91. Even these supplies are limited, and prisoners cannot always get them.62 92. The CDC suggests that correctional facilities implement “social distancing” strategies. “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.” Ex. 36, CDC at 4. 93. However, the Jail has not enacted (or explained) effective social distancing measures. 94. The vast majority of prisoners are sharing their roughly 60 square foot cells with a cellmate, sleeping in bunks directly on top of one another. 95. Even prisoners in different cells are less than six feet apart. 96. Jail guards enter prisoners’ cells multiple times a day to do count.63 As one prisoner explained, “I come within six feet of nine guards every day. All three on the shift come in your
are not cleaned between uses, though individual inmates will do their best. As I was talking to my lawyer on the phone on April 10, 2020, I observed several guys finish phone calls, and the phones were not cleaned.”); Ex. 8, John Doe No. 5 Decl. ¶ 14 (“The phones are not cleaned between uses.”). 62 Ex. 30, Meyer Decl. ¶ 29. (“Inconsistent access to hygiene and disinfection measures will result in widespread infection throughout the facility.”) 63 “Count” refers to the head count that jail guards perform to make sure that no prisoners are missing.
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cell when they do count, and that happens three times a day. There is no way to avoid having them come into your cell.” Ex. 16, Decl. 16 ¶ 9. Guards do not wear gloves, and only some of them wear masks.64
97. Jail staff have not explained the concept of social distancing.65 As a result, some prisoners did not know that they should stay six feet away from others—especially those with symptoms of COVID-19.
98. Plaintiff Keith Seth learned about the social distancing guidelines for the first time on the phone from his lawyer. On hearing this, Mr. Seth realized that he had been within a foot of a sick prisoner earlier that same day:
“[Earlier today] the person in the cell next to me had to go to the medical unit because he was sneezing, shaking, and sweating. I was just talking to him yesterday, and when I was talking with him I was within a foot of him. I did not know that I was being unsafe in talking to him so closely because I have not been told by anybody to stay away from other inmates. The only information I received is to stay six feet away from the officer’s desk. I have no received no information about how to protect myself from the Coronavirus.”66 99. The Jail’s limited attempts at social distancing measures are markedly careless. Although recreation time has been staggered in groups of 10, the same group of prisoners does not always take recreation together each day.
64 Ex. 20, Decl. 20 ¶ 18 (“Correctional officers come in to do arm band checks [as part of count] and many times don’t have their masks on.”); Ex. 5, John Doe No. 2 Decl. ¶ 10 (“Some of the correctional officers wear masks, some don’t. None of them wear gloves.”). See also Ex. 27, Decl. 27 ¶ 14 (“[W]e know that [the virus] can come in from them. They leave and go out into the world every day. They are putting us in jeopardy if they are not cautious.”). 65 Ex. 8, John Doe No. 5 Decl. ¶ 10 (“Other than the division of recreational time, no efforts [have] been made towards encouraging or ordering social distancing.”). 66 Ex. 1, Seth Decl. ¶ 9.
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100. Thus, infected prisoners, who may be contagious for up to two weeks before exhibiting symptoms,67 can infect a new set of other prisoners at recreation each day, and then
those prisoners can infect even more. See Ex. 30, Meyer Decl. ¶ 30 (noting that while staggered
recreation can be an effective social distancing strategy, it is “not useful to prevent the spread of
disease if recreation is staggered with different individuals each day (i.e. different groups of 10).”).
101. When prisoners show symptoms of COVID-19, Jail staff do not (as the CDC
recommends) place them in medical isolation. See Ex. 36, CDC Guidance at 10 (“As soon as an
individual shows symptoms of COVID-19, they . . . should be immediately placed under medical isolation in a separate environment from other individuals”).68
102. Instead, in late March and early April, when the COVID-19 outbreak at the jail
began, jail guards and medical staff routinely disregarded prisoners’ COVID-19 symptoms.
103. Prisoners visited the medical unit with fevers, shortness of breath, coughing, chills,
headaches, and fluid in the chest, and medical staff sent them back to their housing units with Claritin or Tylenol.69
67 See Ex. 32, Benninger Dec. ¶ 2(D). 68 See Ex. 30, Meyer Decl. ¶ 27 (“One of the most critical infection control measures in correctional settings is to accurately identify people who are ill and medically isolate them from the general population.”).
69 Ex. 19, Decl. 19 ¶ 5 (“Last week, I felt really bad for two or three days. I had body aches, a runny nose, and what felt like fluid in my chest. . . .Once in Medical, someone I think was a nurse took my temperature. It was 101 or 102. Despite this, I only remained in the medical unit for ten or 15 minutes. I was told to return to my cell and drink fluids. That was all.”); Ex. 17, Decl. 17 ¶ 4 (“Two days ago I had a headache and felt like I had a fever, and I was sneezing. I went to sick call. They gave me headache medicine and Claritin and sent me back to the unit. I asked to be tested for the virus, but they said they don’t have any tests.”). Ex. 21, Decl. 21 ¶ 5 (“Some people have asked for medication/treatment, medical exams, and have been told that what they have is not serious, or it’s a cold.”); see Ex. 30, Meyer Decl. ¶ 31. (“[P]risoners are given Claritin- a decongestant that is entirely useless for COVID-19.”).
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104. The CDC recommends that staff avoid “transporting [symptomatic] individual[s] through the facility.” Ex. 36, CDC at 10. Instead, these individuals should be placed in medical isolation70 and “refer[red] to healthcare staff for further evaluation.” Ex. 36, CDC at 10.
105. But Jail staff shuttled sick prisoners back and forth between the Medical Unit and their cells multiple times—including prisoners who later tested positive for COVID-19.
106. For example, one pretrial detainee, Declarant 9, who has “asthma, a prior history of bronchitis, and a seizure disease,” began to feel sick on Wednesday, March 25, 2020. Ex. 9, Decl. 9 ¶¶ 3–4. By the next day, he “was sweating profusely, vomiting, and [was] too weak to get out of [his] cell.” Id. ¶ 4.
107. He asked his cellmate to tell the jail guards that he needed medical attention. Guards responded that he was “playing” and would “be alright.” Id. So he waited eight hours for the next shift to begin.
108. After the shift change, the new jail guards were afraid to come near him because of his symptoms. They asked another inmate to put on a glove, enter Declarant 9’s cell, and touch his forehead. When the inmate showed the officer the glove, soaked in sweat, the officers sent Declarant 9 to sick call. Id. ¶ 5.
109. A nurse took Declarant 9’s temperature. It was 101.2 degrees. Declarant 9 told her about his symptoms and said he believed they were serious. The nurse told him he had “been [at the Jail] too long to catch the virus,” gave him Tylenol, and sent him back to his housing unit. Id. ¶ 6.
70 “Medical isolation” requires moving a person to “a separate environment from other individuals,” and “keep[ing] the individual’s movement outside the medical isolation space to an absolute minimum.” Ex. 36, CDC at 15.
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110. Over the following two days, Declarant 9 went back and forth between the medical unit and his housing unit four times. Each time he went to the Medical Unit, he had to pay $4. Id. ¶ 7.71
111. On Friday, April 3, Declarant 9 tested positive for COVID-19. 112. Other COVID-positive prisoners experienced similar treatment. Declarant 11, a pretrial detainee, first developed symptoms at the end of March with “headache, fever, chills, runny nose, and heavy sweating.” Ex. 11, Decl. 11 ¶ 4. 113. At a sick call on April 1, his temperature was 103 degrees. Declarant 11 was given Tylenol and a paper mask and returned to his housing unit. Id. ¶ 6. 114. Declarant 11 went back and forth between the Medical Unit and his housing unit three times. During one of his visits to medical, Declarant 11 mentioned that his cellmate had been in the Medical Unit for six days. When the staff realized that Declarant 11’s cellmate had tested positive for COVID-19, they tested Declarant 11 too. Id. ¶ 10. 115. He tested positive for COVID-19 on April 5. Id. ¶ 11. 116. Declarant 12, a pretrial detainee, began to feel sick on Thursday, March 26 with “chills, body aches, coughing, and fatigue.” Ex. 12, Decl. 12 ¶¶ 3–4. He visited the Medical Unit twice that day, and his temperature was measured at 100, and then 101 degrees. Id. Each time, the nurse sent him back to his cell. Id. 117. The next day, Declarant 12 went to the Medical Unit again. His temperature was 104.7 degrees. Id. But the nurse sent Declarant 12 back to his cell. Id. ¶¶ 3-5. Ultimately, Declarant 12 went back and forth between his housing unit and the Medical Unit five times before he was
71 Prisoners request medical help by filling out a form for a “sick call.” Every “sick call” costs $4. Ex. 3, Burch Decl. ¶ 11 (“If an inmate puts in a sick call they have to pay money in order to go to the infirmary.”); Ex. 26, Decl. 26 ¶ 5 (“It costs $4 to go to a sick call. I can afford this, but not everyone in the jail can.”).
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transferred to the Medical Unit for COVID-19. Id. ¶ 3. Each time, Declarant 12 had to pay $4 for
the sick call. Id.
118. When prisoners with symptoms of COVID-19 are sent back to their housing units
from medical, they are not isolated, and other prisoners are not warned. As one prisoner described:
“In some cases, people on the unit have gone to sick call and been sent back, and then they go again and again, and we hear later on that they had the coronavirus. The same people who later left and I heard they had the coronavirus, we had been playing spades with them at the tables just days before. I have told my family that I love them because I feel sure I am going to get the virus in here.”72
119. The CDC also provides that prisoners with symptoms of COVID-19 should be required to wear face masks whenever they are outside of isolation. Ex. 36, CDC at 15.73 A facility
should “[p]rovide clean masks as needed,” and “[m]asks should be changed at least daily, and
when visibly soiled or wet.” Ex. 36, CDC at 15.
120. This does not happen at the Prince George’s County Jail. Jail staff gave each
prisoner one thin, single-use paper mask on April 6, 2020. Ex. 14, Decl. 14 ¶ 5. The Jail does not
provide replacements—including to symptomatic prisoners who remain in general population.
Before this, symptomatic prisoners who remained in general population did not have masks at all.74
72 Ex. 17, Decl. 17 ¶ 7. 73 See Ex. 32, Benninger Decl.¶ 2(E) (“CDC has recommended wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain, especially in areas of significant community-based transmission. . . .Cloth face masks should be laundered before each daily use.”) 74 Ex. 5, John Doe No. 2 ¶6 (“The masks that were provided are the disposable paper kind, but we are not being given replacement masks, we have to continue to use the same mask without any way to sanitize the mask.”); Ex. 8, John Doe No. 5 Decl. ¶ 6 (“Usually four to six people go to Medical Unit per day—and not always the same people. When people return from the Medical Unit, their masks may be on or off. There is no consistency.”).
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121. In the Medical Unit, the jail provides a mask to some prisoners with suspected or confirmed cases of COVID-19, but it does not provide them with replacements. Ex. 10, Decl. 10 ¶ 17 (“All we have are little worn-out paper face masks. I’ve had the same facemask since [the previous Friday, eight days prior to the declaration], and we’re all breathing the same air.”).
122. In early April, medical staff began taking every prisoner’s temperature twice a day. But the checks are not conducted in every housing unit. And as implemented, the checks are further opportunities for infection: the temperature reader is not cleaned between uses, Ex. 24, Decl. 24 ¶ 8, and the medical staff do not change their gloves, Ex. 25, Decl. 25 ¶12.
123. The checks have also been conducted without regard to social distancing guidelines. When they began, prisoners lined up back to front, with no space between them, to have their temperatures taken. Ex. 10, Decl. 10 ¶ 5. In recent days, prisoners have instead been asked to put their heads through the slot in the cell door.
124. At these temperature checks, some prisoners with fevers are sent to the Medical Unit. Some are returned to their housing unit that same night. Ex. 10, Decl. 10 ¶ 10.
125. Prisoners with symptoms of COVID-19 who do not have fevers are not taken to medical.75
126. But even some who do have fevers are told to remain in general housing. For example, Declarant 10 is a prisoner with high blood pressure and seizures. Ex. 10, Decl. 10 ¶ 3. Even when Declarant 10 had COVID-19 symptoms and a fever, jail staff did not take him to the Medical Unit:
“[O]n Friday, April 3, I started to have symptoms. I could feel aches in my spine and kidneys, and my body had fevers and chills. One minute I would feel like I’m
75 Ex. 18, Decl. 18 ¶5 (“[I]f detainees only display symptoms without a high temperature, they remain on the unit in general population.”).
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freezing, and the next I’m heating up and my forehead is sweating. I also had diarrhea. And when I would drink liquids, my eye sockets would hurt. I started feeling shortness of breath. My nose was running, and I had a terrible headache. . . . At lunchtime on April 3, when they lined us up to take our temperatures, mine was 100 degrees. I told the nurse I wasn’t feeling right. But she told me, “you’ll be alright,” and left. At around 5:00 p.m. or 6:00 p.m., I started to have real difficulty breathing and my body was really aching and causing me a lot of pain. They told me to hold on and wait until the medical staff returned at 9:00 p.m. So I had no choice but to wait. That evening, when the medical staff came back again to take everyone’s temperature, mine was 104 degrees. They made me step to one side, along with four other guys, and then we all went to the medical unit around 11:00 p.m. They kept three of us, and sent two back to the housing unit.”76
127. Declarant 10 tested positive for Covid-19. Ex. 10, Decl. 10 ¶ 2.
128. Once a prisoner has tested positive for COVID-19, the CDC recommends careful
attention to that prisoner’s contacts. Every person who has been within six feet of that prisoner
should be placed in a 14-day quarantine. Ex. 36, CDC at 14.
129. However, jail staff do not affirmatively quarantine, isolate, or even inform prisoners
when a person who lives within six feet of them has COVID-19 symptoms or even tests positive
for the virus—even when that person is the prisoner’s cellmate.
130. Nor do they disinfect cells where symptomatic or COVID-positive prisoners have lived.77
76 Ex. 10, Decl. 10 ¶¶ 9–10. 77 Ex. 7, John Doe No. 4 Decl. ¶6 (“My cell mate went to medical at 8 o’clock last night and he hasn’t come back. He was not feeling well he had a headache and stomach ache. When my cellie left last night, the staff did not do anything to disinfect my cell. I am waiting to get rec-time because that is the only time I can get cleaning supplies.”); id. (“I have seen 3 inmates leave on this unit so far, and not come back. … One was across the hall 3 or 4 days ago, he went to medical, his stuff is still in his cell. The guy across the way—his cell was within 5 feet of our cell.”).
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131. Indeed, jail staff—including even medical staff—do not appear to know which prisoners have tested positive for the virus.78
E. The Jail’s Limited Containment Methods Are Ineffective and Counterproductive
132. Instead of implementing the CDC’s recommendations to prevent COVID-19, at the beginning of April, the Jail implemented a universal, preemptive lockdown of all prisoners.
133. Under the lockdown policy, prisoners must remain in their cells for 23 hours per day.
134. Prisoner have one hour (which may be at 1:30 a.m. or some other odd hour) of “recreation,” which is prisoners’ only chance to shower, go outside, or use the phones to call their attorneys79 or their families (if they are awake).80
135. Some jail guards also require prisoners to use that hour to clean their cells. 136. The lockdown appears to have no end date short of the pandemic’s end. 137. The CDC does not recommend preemptive lockdowns of all prisoners. 138. Instead, it recommends that correctional facilities achieve social distancing by, for example, “[r]earranging seating in the dining hall so that there is more space between individuals,”
78 Ex. 11, Decl. 11 ¶10 (“I told them that my cellmate had been in the medical unit for six days. That’s when they looked into things and realized that my cellmate had tested positive, so they had to test me too.”). 79 The prisoners’ limited time for phone use has also hindered contact with their attorneys. See Ex. 29, Glenn Decl. ¶¶ 16–22. This is particularly challenging given the pandemic-related delays in state court criminal cases. See generally Ex. 28, Schneller Decl. 80 Ex. 7, John Doe No. 4 Decl. ¶ 14 (“You can’t really talk to your family at 1 o’clock in the morning, my kids are asleep.).
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and “[c]onsider[ing] alternatives to existing group activities, in outdoor areas or other areas where
individuals can spread out.” Ex. 36, CDC at 11.
139. And it only recommends something akin to lockdown—that housing units
“quarantine in place”—when there is “contact with a case from the same housing unit” and that all
quarantines—including this sort—last for just 14 days. Ex. 36, CDC at 19.
140. Other public health experts recommend the same: time-limited lockdowns used
only as necessary for quarantine and contact tracing.81
141. Experts also warn that preemptive lockdowns like those at the Jail are ineffective
and counterproductive in preventing the spread of COVID-19.
142. Indeed, on lockdown, opportunities for infection abound.
143. Most prisoners live with cellmates in hot, poorly ventilated cells.82 Even prisoners
in different cells are less than six feet apart.
81 Ex. 30, Meyer Decl. ¶ 27 (“Lockdown can be important from a public health standpoint to enable social distancing during a pandemic but should be used only as a last resort and in a timelimited way (CDC recommends quarantines last no longer than 14 days) that is communicated clearly to the residents”); David Cloud, Dallas Augustine, and Brie Williams, The Ethical Use of Medical Isolation—Not Solitary Confinement—to Reduce COVID-19 Transmission in Correctional Settings, Amend at 3 (Apr. 7, 2020), available at https://amend.us/wpcontent/uploads/2020/04/Medical-Isolation-vs-Solitary_Amend.pdf [hereinafter “Medical Isolation—Not Solitary”] (“Corrections officials should only require people on an entire housing unit to stay in their cells (“Lockdown”) if medical professionals determine a symptomatic persons resides or works on that unit or contract tracing flags a confirmed or suspected case. In this event, time-limitations must be clearly communicated to residents and staff.”); Ex. 34, Haney Decl. ¶ 29 (“[T]he Jail should institute … lockdowns only where medically necessary to resolve discrete issues, such as sanitizing dorms or contact tracing of an infected prisoner. If the [Jail] resorts to these lockdowns, it should do so in a reasonably time-limited manner and communicate that timelimit to the prisoners who are affected.”).
82 Ex. 5, John Doe No. 2 Decl. ¶12 (“It’s very hot in the cells. For the 23 hours we are in our cells a day, the cell door is kept closed. There is no noticeable air circulation, and the rest of the unit is very hot as well. The staff keeps the door to the recreation yard propped open.”); Ex. 1, Seth Decl. ¶ 94 (I am not getting good air circulation in the cell[.]”).
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144. Thus, the lockdown policy—especially in combination with the Jail’s failure to medically isolate those with symptoms of COVID-19—traps prisoners in close proximity to people who may be sick. See Ex. 36, CDC at 19 (warning that quarantining prisoners together “could transmit COVID-19 from those who are infected to those who are uninfected.”); Ex. 30, Meyer Decl. ¶ 30 (stating that sustained lockdowns are “particularly problematic when inmates are locked down in poorly ventilated spaces that are shared closely with others, which may contribute to disease transmission from people who are infected with COVID-19 but have not yet reported symptoms.”).
145. For example, Plaintiff John Doe No. 2, who has severe asthma for which he has been hospitalized, is locked down with his cellmate, who has lost his sense of smell and taste (a symptom of COVID-19). Ex. 4, John Doe No. 2 Decl. ¶ 22; see also Ex. 7, John Doe No. 4 Decl. ¶ 14 ([I]t’s really bad when you can’t get come out of a cell for 23 hours I’m really scared now because my cellie has been sick.”); Ex. 17, Decl. 17 ¶ 6 (“My cellmate has been coughing and sneezing. They have us locked in 23 hours a day with 1 hour of recreation time. There is no way for my cellmate and I to distance ourselves from each other.”).
146. The Jail’s preemptive lockdown is counter-productive in other ways as well. Because prisoners’ one hour of out-of-cell time is their only chance to call their attorneys and families, they congregate by the phones (which are close together and rarely, if ever, cleaned).83
83 Ex. 30, Meyer Decl. ¶ 30 (observing that under the Jail’s preemptive lockdown policy, “[w]ith only 1 hour per day to use phones, it may be hard to enforce social distancing since prisoners need to congregate to use this precious resource”); Ex. 34, Haney Decl. ¶ 30 (“During th[e] limited one hour of out-of-cell time [under the Jail’s preemptive lockdown policy], prisoners crowd together to use the limited shared resources. . . . As a result, they are unable to maintain the recommended six feet of social distancing.”).
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147. The lockdown also “decreases the interactions that prisoners have with correctional and healthcare staff members, compromising the latter’s ability to identify symptoms,” further ensuring that infected prisoners will remain in general population where they can spread the virus. Ex. 34, Haney Decl. ¶ 30.84
F. The Jail’s Conditions Increase the Risk of Severe Illness and Death 148. In addition to accelerating the COVID-19 outbreak, the Jail has also increased the risk that those who are infected will suffer serious illness, permanent physical damage, and death. 149. Sick prisoners in general population lack access to medical care. 150. “Sick call” (a request for medical attention) costs $4, and some cannot afford to pay. Some housing units have run out of sick call slips entirely. Ex. 19, Decl. 19 ¶ 6. 151. This prevents even prisoners who are medically vulnerable and have symptoms of COVID-19 from seeking care. 152. For example, Plaintiff Seth explained: “For about a week or two I have been experiencing shortage of breath and coughing. . . . About four days ago, I asked to get into the medical unit but they make you pay $4 for the form and I don’t have money for that. I am losing my sense of taste, I have hot chips that I eat and do not taste the hotness. It feels like my taste buds are numb. I have had diarrhea for about a week. . . . About two days ago I decided I should probably go to the medical unit. But I decided not to ask because I do not have the money for the form.”85 153. Mr. Seth was also deterred from seeking care because so many prisoners with symptoms of COVID-19 were unable to get it at the Jail. He explains: “I know one guy who had
84 See Medical Isolation—Not Solitary at 2 (warning that “preemptively placing entire units on ‘lockdown’ for indefinite amounts of time” will likely mean that “interactions with correctional staff an healthcare staff often become less frequent and people with symptoms may go undetected”). 85 Ex. 1, Seth Decl. ¶¶ 9–11.
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a fever and they kept him for three days and sent him back. Another guy I know lost his sense of taste and his stomach hurt, but medical sent him back.” Ex. 1, Seth Decl. ¶ 11.
154. Moreover, as Mr. Seth’s experience demonstrates, the Jail has no plan for specially protecting medically vulnerable prisoners from COVID-19 or monitoring them if they become symptomatic.
155. Many prisoners with symptoms of COVID-19 cannot get medical attention for other reasons.
156. Jail staff has told prisoners that medical care is limited to emergency cases.86 157. Some prisoners who have made sick calls were seen by medical staff weeks later or not at all. For example, John Doe No. 2, who has previously been hospitalized for his severe asthma, told jail staff that he has asthma, was spitting up brown mucus, and was having trouble breathing. He was not taken to the medical unit for two weeks. Ex. 5, John Doe No. 2 ¶5; see also Ex. 19, Decl. 19 ¶ 6 (stating on April 9, 2020: “I first put in for sick call on March 23rd and I haven’t heard anything.”). 158. People who need medical care for anything other than COVID-19 generally cannot get it. Jail staff has told prisoners that they cannot receive medical services because the medical unit is locked down. Ex. 2, Smith Decl. ¶ 15. 159. Prisoners who made a sick call that was not about COVID-19 were told by corrections officers “that if it’s nothing relating to Corona not to write to medical.” Id.
86 Ex. 26, Decl. 26 ¶¶ 6–7 (“I was told my case was not serious enough to have additional care, and that the Medical Unit is only seeing emergency cases.”); Ex. 19, Decl. 19 ¶ 6 (“The guards have told me that they’re not bringing anyone down unless it’s an emergency.”).
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160. Prisoners who had lived in the medical unit due to chronic medical concerns have been transferred out.87
161. And many prisoners have been unable to obtain or change their medications— including prisoners with pre-existing conditions like asthma, which make them especially vulnerable to serious illness and death if they do become infected with COVID-19.88
162. Prisoners’ mental health is also at great risk. 163. Dr. Craig Haney, a psychologist and expert on prison isolation,89 has concluded that the punitive isolation methods that dominate the Jail’s approach to COVID-19 “greatly increase the psychological stress under which prisoners live, potentially leading to mental and physical deterioration, interpersonal conflicts, and self-harm and suicidality.” Ex. 34, Haney Decl. ¶ 20.90 164. As Dr. Haney explains, “The Prince George’s County Jail lockdown units are now being used in ways that are essentially identical to the solitary confinement-type housing that has
87 Ex. 6, John Doe No. 3 Decl. ¶ 4 (“When I first entered the Detention Center, I was placed in the Medical Unit. I have numerous medical issues, including neck and back issues, I walk with a cane, and I am currently having kidney issues, including blood in my urine. I was moved from the Medical Unit about halfway through my thirty-day incarceration, and I do not know why, but it may be because it was getting more crowded in the Medical Unit.”). 88 Ex. 2, Smith Decl. ¶ 15 (“I take medication and they haven’t consulted me to change the medication because I don’t like the side effects it gives me.”). 89 See Ex. 35, Haney Curriculum Vitae. 90 See also Medical Isolation—Not Solitary at 3 (“Research shows that keeping people socially isolated in a closed cell without a meaningful opportunity to communicate with family, friends, and loved ones or to participate in exercise, education, and rehabilitative programming (solitary confinement) causes immense, and often irreparable, psychological harm.”); Ex. 32, Benninger Decl. ¶ 3(J) (“I have concern that there has not been sufficient acknowledgement of or attention to the inmates’ mental health under the stressors of pandemic and solitary confinement.”).
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been shown to place prisoners at significant risk of grave harm (including damage that is permanent, even fatal).” Id. ¶ 20.91
165. Moreover, the Jail has discontinued mental health services.92 This places prisoners with mental illness who are isolated “at grave risk of decompensation.” Id. ¶ 24.93
166. These policies also threaten physical harm; “the extraordinary stress of social isolation under these especially onerous conditions” may “depress prisoners’ immune systems and render them even more vulnerable to the COVID-19 virus, and less able to combat it if and when they contract it.” Ex. 36, Haney Decl. ¶ 26; see also Ex. 30, Meyer Decl. ¶ 36 (“Failure to provide adequate mental health care . . . as appears to be the case at the Prince George’s County Jail, will result in poor health outcomes.).
91 Ex. 34, Haney Decl. ¶ 20 (“The fact that prisoners are double-celled during these lockdowns [in the general housing units] does not mitigate the negative effects of their essentially around-theclock in-cell confinement. In fact, double-celling may exacerbate these effects because of the interpersonal tensions and stressors that such unavoidably close around-the-clock contact generates.”). 92 Ex. 30, Meyer Decl. ¶ 36 (“People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention.”). 93 Even in less extreme forms of isolation than those imposed at the Jail, the CDC Guidance recommends efforts to mitigate the mental health consequences of any necessary medical isolation. See, e.g., Ex. 36, CDC Guidance at 12 (“[I]f group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.”); id. at 13 (“Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health.”); id. at 14–15 (recommending that, since “visitation is important to maintain mental health,” 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.”). The Jail has done none of this.
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G. The Jail Has Failed to Effectively Manage Positive Cases of COVID-19 167. In addition to the Jail’s failure to implement basic, CDC-recommended protocols
to prevent the spread of the virus, the Jail has also failed to provide adequate care to prisoners who
have tested positive for the virus.
168. Prisoners who are transferred to the Medical Unit to be tested for COVID-19 are
placed in medical isolation cells. The cells are filthy. The walls are covered in mucus, feces, and
blood.94
169. Prisoners are terrified of being placed there, and they downplay their COVID-19
symptoms to avoid it.95
94 Ex. 11, Decl. 11 ¶ 18 (“The isolation cells have mucus, feces, blood, old food, urine, spit, everything you can name on the walls. . . . Someone should come and take pictures of these cells, they’re disgusting.”); Ex. 10, Decl. 10 ¶ 11 (“The isolation cell they put me in has mucus and blood dried all around the walls, 360 degrees. I wish you could come and take pictures of it. When I say mucus and blood on the walls, I mean it – thick yellow, some green, some yellow with red blood in it. I can also tell someone was bleeding in that isolation cell, because there is blood all along the floor under the bed.”); Ex. 12, Decl. 12 ¶ 7 (“I was put in isolation cell number [redacted], which was not clean. It has feces and blood on the walls. The sink was stopped up too, so I couldn’t really use the water.”).
95 Ex. 12, Decl. 12 ¶ 14 (“I think a lot of guys are having symptoms, but are fearful of being stuck in the medical unit on total lock-down. They’re more afraid of how they’ll be treated in the medical unit than they are of their symptoms, so they downplay things so they can go back to the housing unit where they have access to showers and phones and stuff like that.”); Ex. 10, Decl. 10 ¶ 25 “Some people are trying to hide their symptoms, because they don’t want to be punished in the medical unit. … So a lot of people are just trying to tough it out, but it’s spreading it. My cellmate was sneezing and coughing when I left him. I’ve seen people in the kitchen unit sneezing as they prepare food.”); Ex. 9, Decl. 9 ¶ 21 (“Some guys on the unit seem to have the virus, but they are scared to get tested, because they don’t want to get stuck in the medical unit like I am. They’d rather just let their bodies fight it off.”); Ex. 17, Decl. 17 ¶ 8 (“A lot of people in the unit who are coughing and sneezing have said they are trying to suppress it because they don’t want to go to the medical unit because of the way people there are being treated.”).
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170. Prisoners must remain in these cells until the results of their COVID-19 tests come back. This can take up to five days. During this time, prisoners have no access to basic personal hygiene products: they have no soap and no toothbrush. They are not allowed to shower. They cannot change their clothes, even as they are soaked in sweat.96
171. They have no access to phones, no reading material, and no mental health services. 172. A nurse visits each prisoner three times per day to take his temperature and deliver medication and food trays. But the prisoners there cannot contact them (or anyone else) on their own, even in a medical emergency. Ex. 12, Decl. 12 ¶ 9 (“In the isolation cell, there was no way for us to notify someone if we were having an emergency, except to get up and bang on the door and hope that someone could hear you.”). 173. Medically vulnerable prisoners suspected of having COVID-19 are held in the same isolation cells in the same abject conditions. There does not appear to be any plan for their care in light of the particular dangers they face if infected. 174. A prisoner who tests positive for COVID-19 is transferred from the isolation cell to a 10-man cell for COVID-positive prisoners in the medical unit. Starting on April 11, 2020, the Jail also began using isolation units in Housing Unit 6 (H-6). There is no special location, plan, or care for medically vulnerable prisoners who have COVID-19.
96 Ex. 11, Decl. 11 ¶ 12 (“I was still wearing those same clothes I was sweating in, for five days. They didn’t give me clean clothes until April 6, and they haven’t allowed any of us to take a shower.”); Ex. 12, Decl. 12 ¶ 8 (“I was in the isolation cell for five days before I was even given a wash cloth or a toothbrush.”).
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175. The 10-man cell is dirty. For fear of contracting COVID-19, jail guards will not remove the trash bags, which are filled with vomit and spit.97 The floor is covered with tissues, hair balls, spiders, and bugs.98
176. Jail staff will not enter the room to fill the water cooler. The prisoners are told that if they are thirsty, they can drink from the sink.99 When jail guards do bring something to the prisoners in the cell, they throw it through the door.100
177. Prisoners in the 10-person cell also lack basic hygiene products. Many do not have
soap or have to share a single bar with others. Some have not had toothbrushes or toothpaste for
over a week. They are still not allowed to shower. All of the sick men share a single, mildewed
97 Ex. 10, Decl. 10 ¶ 23 (“There’s also a pile of trash building up inside of our unit, which they won’t take away. There are fumes from guys getting sick in those trash bags, there’s spit on top of it and in it, and the trash is just closed in here with us.”); Ex. 9, Decl. 9 ¶ 19 (“[O]ur trash is piled up in bags that they won’t take away since we’ve been over here. The COs refuse to get close to us and they say that anything that goes in, can’t come back out.”) 98 Ex. 11, Decl. 11 ¶ 19 (“There’s spiders and other bugs. It’s nasty. There’s piles of dust under the beds. It hasn’t been cleaned since god knows when.”); Ex. 9, Decl. 9 ¶ 19 (“There’s lint balls and tissues and paper towels on the floor. There are spiders and centipedes, one guy just killed another spider while I’m talking to you on the phone.”); Ex. 10, Decl. 10 ¶ 17 (“[T]here’s dust and hair balls all around the floor in our cell.”). 99 Ex. 11, Decl. 11 ¶ 20 (“It’s supposed to be a water cooler for us, but it’s empty. They’re scared to come and refill it, they’re scared to even come and get the trash.”); Ex. 9, Decl. 9 ¶20 (“There’s an orange water cooler in here with us, but it’s empty because the COs refuse to fill it with ice and clean water.”). 100 Ex. 10, Decl. 10 ¶ 14 “When we really need something, the staff will open the door, and throw stuff at us through the door. It makes me feel like an animal.”; Ex. 11, Decl. 11 ¶ 21 (“There’s a pile of trash right now in the ten-man cell right next to the empty water cooler. It’s supposed to be a water cooler for us, but it’s empty. They’re scared to come and refill it, they’re scared to even come and get the trash. They treat us like animals, like they’re afraid to come near us. And anything they do give us, they throw to us like we’re animals, like we’re nothing.”).
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sink. Prisoners may go five or six days without being able to change their clothes or underwear.
101 There are no mental health services.
178. COVID-positive prisoners who are housed on H-6 are held alone in cells. Ex. 11,
Decl. 11 ¶ 35. They have no access to phones and nothing to read. They too have no mental health
services.
179. There is no jail guard on H-6 with the prisoners. Ex. 9, Decl. 9 ¶ 6. The only time
the prisoners there see anyone is when a guard comes to deliver their food. A nurse comes at the
same time.
180. The cells in H6 have call buttons that prisoners can use to talk to the corrections
officer in the unit’s command center bubble. Ex. 9, Decl. 9 ¶ 31.
181. Sometimes, either the call button does not work or no one answers it. One prisoner
in H-6 heard another kicking his door because the guards would not answer his call button. No
101 Ex. 11, Decl. 11 ¶ 20 (“They gave me one bar of soap, but not everyone in here with me even has a bar of soap. Some guys don’t have toothbrushes or toothpaste either, some say they haven’t had a toothbrush or toothpaste in a week.”); id. (“We ask for showers, but they say we can’t take a shower. They tell us to wash in the sink, but there’s just one sink that all nine of us have to use.”); id. (“We’ve got the same clothes on for five or six days, the same underwear for five or six days. I’m still wearing the same drawers since Thursday, and they look nasty. They’re turning black.”); Ex. 10, Decl. 10 ¶ 15 (“They won’t let us shower, either. We have only one working sink, and I’m sharing it with everyone in here. There are currently ten men in this cell, the maximum. We’ve all got to take turns washing up in that one sink. Although they gave me a bar of soap on April 6, I didn’t get a toothbrush or toothpaste until April 9. I requested it and requested it, but I didn’t get it. I didn’t have any toothbrush or toothpaste between April 3 and April 9.”); Ex. 9, Decl. 9 ¶ 17 (“They tell us to be clean with soap and hygiene, but they don’t give us any hygiene products. It took four or five days before they gave me a hygiene kit in the medical unit. Before then, I had no soap, toothbrush, toothpaste, or deodorant to keep myself clean. I asked them many times, but the COs would play with us and tell us we didn’t need a hygiene kit. Finally the nurse went to the Sergeant and told him what was going on, and the Sergeant got us our hygiene kits.”); id. ¶ 18 (“I also have not been allowed to use the shower since being moved to the medical unit. I have not had a shower in nearly two weeks, not since Thursday, March 26. Instead, I have been forced to wash myself as best I can in a dirty, mildewed sink. In the isolation cell, I had a bar of soap for myself, but now in the ten-man cell I have to share the sink and bar of soap with the other men in here.”); Ex. 12, Decl. 12 ¶ 12 “I haven’t had a shower since Thursday, March 26.”).
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jail staff checked on the other prisoner. He does not know what happened to the man who was kicking his door. Id.
182. The same prisoner worries that even if the button works, in a medical emergency he might not be able to press it. He explained, “I have a seizure disease. If I were to have a seizure, I wouldn’t be able to push the button. No COs are in the housing unit, so no one would hear what was going on. I’m afraid that if I have a seizure in here, no one will hear it and I will die. . . . They’re not really doing anything to protect any of us in here.” Ex. 9, Decl. 9 ¶¶ 31–32.
H. The Jail Maintains an Overdetention Policy for Prisoners with COVID-19 183. Although the Jail has failed to control the outbreak within its walls by not following clear public health guidance, it has resorted to unlawful means to control the virus’s spread outside of them: the Jail refuses to release COVID-positive prisoners who have paid bail (or are otherwise legally entitled to release) until it deems them non-contagious. 184. Accordingly, one prisoner who paid his bond on April 3, 2020—but tested positive for COVID-19 on the same day—was illegally imprisoned in the cohorted isolation cell in the Jail for fourteen days. Ex. 29, Glenn Decl. ¶ 24. 185. He was not released until April 16, 2020. Id. 186. Had he been released when he paid his bond on April 3rd, he would have sought treatment for COVID-19 at a local hospital. Id. I. The Jail’s Continued Use of Indefinite Lockdown 187. Since Plaintiffs filed this Complaint on April 21, 2020, the indefinite lockdown has continued at the Jail. This is the fourth month of the lockdown. 188. Detainees at the Jail continue to be locked down for 22 or, more commonly, 23 hours per days in their cells.
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189. In mid-to-late June and early July, more than 80 detainees in ten different housing units reported that they receive only one to two hours out of their cells each day.
190. Of those, more than 65 reported that they receive only one hour out of their cells and are locked in their cells for 23 hours each day. A smaller portion reported that they receive one to two hours per day, depending on the corrections officers or how crowded the unit is, and a small portion reported that they receive two hours per day.
191. Of the prisoners who receive two hours out of their cells, many report that the second hour began in the last week of June. They receive the second hour at a different time from the first (potentially in the middle of the night).
192. However, like detainees who receive only one hour of out-of-cell time, those who receive a second hour out of their cells often receive it inconsistently.
193. Out-of-cell time may be offered in the middle of the night, at 1 or 2 in the morning. For those who receive only one hour of out-of-cell time, this means that it is impossible to reach counsel or loved ones that day.
194. At times, prisoners go more than a day without any out-of-cell time at all—48 or 72 hours might pass without it. And in some units, detainees are routinely given less than an hour of time out of their cells. In H6, where the Jail has housed COVID-positive prisoners, an hour of out-of-cell time has been offered only once every other day.
195. The cells in which detainees in general housing spent 22 to 23 hours per day are approximately 70 square feet.
196. A prisoner’s hour (or maybe two) of out-of-cell is his only opportunity to use the phones to call family or his attorney, to shower, to access cleaning products for his cell, and to spend any time outside.
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197. During prisoners’ out-of-cell time, prisoners crowd by the phones, since it is their only opportunity to contact family or counsel.
198. In most units, there are not enough working phones for everyone to use one, and so prisoners rush or even run to the phones to get to them. While using the phones, prisoners are regularly sitting shoulder to shoulder, inches apart. As one prisoner described it, “The phone area is crowded with bodies.”
199. Although many would prefer to practice social distancing, they do not because their out-of-cell time is their only opportunity to use the phones at all. This amplifies their anxiety about infection, but detainees feel that they have no choice but use the phones in their rare opportunities to do so, despite the risk that comes with it.
200. The small outdoor recreation area—a very small concrete square with concrete walls and no ceiling—is not always available to prisoners, even during out-of-cell time (and if it were, prisoners often have no time in that hour to use it between using the phones, showering, and accessing cleaning supplies and cleaning their cells). Often, they cannot access it for days at a time. Even so, given its size, it would be impossible for all (or even many) of the 10 detainees the Jail allows out of their cells at any given time to spend time there during their out-of-cell time and also maintain social distancing.
201. The lockdown policy includes no accommodations for detainees with serious mental health conditions. The Jail detains numerous people who have mental illnesses, including psychotic illness, depression, anxiety, post-traumatic stress disorder, and bipolar disorder. Some detainees are currently part of a special mental health docket for the court, and some are awaiting competency evaluations or have been deemed incompetent. They too are locked in their cells for 22 or 23 hours per day.
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202. Mental health services are limited or nonexistent. Most detainees have received no mental health treatment at all.
203. Of the detainees who have pre-existing mental health conditions that require medication, the vast majority report that they receive the medication at the front of their cells and may be asked whether the medication is working, but they receive no other mental health services, such as confidential therapeutic services.102
204. Moreover, the Jail does not—and apparently has no plan to—assess or otherwise check on detainees to determine whether they are experiencing the psychological and physiological consequences of solitary confinement, including whether a detainee is at risk of (or already is) decompensating.
205. Access to reading materials is limited or non-existent. Many detainees cannot access any reading materials at all.
206. In the units where reading material is available, most share a single newspaper for all prisoners in the unit and may have a small number of books that were taken from the Jail’s library before the pandemic began (but have not been changed out since). Detainees often beg corrections officers for reading materials—but receive them only when the officer decides to oblige. Detainees do not have access to the law library. And some are permitted reading materials only during their out-of-cell time
207. For the exclusively Spanish-speaking detainees at the Jail, even where books are occasionally available, they cannot read them because the books are in English.
102 The Fourth Circuit recently found a substantial risk of serious harm under the Eighth Amendment where detainees under a 23-24 hour lockdown policy were visited by case counselors daily and mental health professionals once per week. See Porter v. Clarke, 923 F.3d 348, 354 (4th Cir. 2019).
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208. While in their cells, prisoners are given no audio players, television, tablets, or other materials for entertainment or stimulation.
209. Because of this, prisoners locked in their cells often have nothing but their thoughts. Even for solitary confinement policies, this deprivation is particularly stark.103
210. Prisoners’ social contact is limited to a cellmate (if they have one, which many do not), and very brief, front-of-cell checks a couple of times a day. Other than this, they are alone.104
211. The lockdown’s duration remains indefinite. 212. This indefinite timeline is particularly daunting because most trials have been continued because of the pandemic; as a result, prisoners are spending longer terms in the Jail. 213. Detainees are suffering the lockdown’s effects. Many are increasingly anxious, depressed, and suicidal. Some simply report that they feel like they are going crazy. 214. These effects are amplified by the restrictions in place during the pandemic, such as the cessation of visitation, the continuance of their trials and other court dates (resulting in more time spent detained pre-trial), greatly reduced access to counsel, and their limited ability to contact their family members by phone—which is particularly stressful as many of detainees’ loved ones are suffering the economic consequences of the pandemic or have actually been infected, and all are at risk of infection.
103 See Porter, 923 F.3d at 353-54 (4th Cir. 2019) (finding that solitary confinement policy created a substantial risk of serious harm where prisoners were locked down for 23-24 hours per day but, while in their cells, prisoners could keep a television and compact disc player in their cells, could borrow books from the library to request, and could request and use wireless telephones any day of the week between 8 am and 9:30 pm). 104 See Porter, 923 F.3d at 353-54 (4th Cir. 2019) (noting, in assessing solitary confinement conditions, that contact with correctional staff was “limited” where prisoners under solitary confinement were given security checks by corrections officers every thirty minutes, had twice daily visits from medical staff and nurses, daily visits with a case counselor, and a weekly visits from a mental health professional).
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215. Lockdown’s psychological effects are also exacerbated in these circumstances given the baseline increase in anxiety prisoners have about the pandemic, including the fear that they will die at the Jail without being able to say goodbye to their families.
216. In many cases, the lockdown may have the effect of prolonging prisoners’ imprisonment at the Jail. For example, many detainees have been authorized for release by a court, but only if they comply with their mental health medications. Placing these detainees under conditions that routinely result in severe psychological symptoms (particularly while failing to provide appropriate mental health treatment) makes compliance—and thus release—less likely. And as a general matter, detainees’ reduced access to their attorneys makes it more challenge to press their cases in ways that could lead to release, such as bond reconsideration motions. See Rettamel Decl. ¶ 6 (Doc. 44-1 at 123).
217. A robust body of empirical evidence sets forth the psychological and physical harms that frequently result from solitary confinement conditions like the lockdown at the Jail, in which prisoners are locked down for 22 to 23 hours per day.
218. This scientific evidence has been repeatedly credited by federal courts, including the Fourth Circuit. See Porter v. Clarke, 923 F. 3d 348, 355-57 (4th Cir. 2019) (describing this evidence and multiple court’ recognition of it, and relying on it to find that a solitary confinement policy imposed an objective risk of serious harm under the Eighth Amendment).
219. Specifically, scientific research documents that solitary confinement conditions like those at the Jail under lockdown consistently result in serious psychological and physiological harms. See Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique, 47 Crime & Justice 365, 367-68, 370-75 (2018) (collecting studies); Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325, 335-38 (2006).
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220. As Dr. Craig Haney105 explains, the lockdown conditions at the Jail “greatly increase the psychological stress under which prisoners live, potentially leading to mental and physical deterioration, interpersonal conflicts, and self-harm and suicidality.” Haney Decl. ¶ 20 (Doc. 2-1 at 209).
221. Psychological injuries may include cognitive dysfunction, paranoia, panic, severe depression, hallucination, memory loss, insomnia, and stimuli hypersensitivity. See Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325, 335-36, 348, 370-71 (2006).
222. Prisoners in solitary confinement also frequently engage in life threatening behavior, such as self-mutilation and suicidality. Id. at 349; see also Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences: Hearing Before the Subcomm. on Constitution, Civil Rights & Human Rights of the S. Comm. on the Judiciary, 112th Cong. 72, 80-81 (2012) (statement of Craig Haney).
223. These effects are particularly severe for prisoners with pre-existing mental health conditions, who “are particularly likely to decompensate, suffer worsening depression, and even engage in self-harming and suicidal behavior in response to social isolation.” Haney Decl. ¶ 23 (Doc. 2-1 at 209).
224. Moreover, because they are denied appropriate mental health care while on lockdown, including confidential treatment, psychologically vulnerable prisoners in particular are “at grave risk of decompensation.” Haney Decl. ¶ 24 (Doc. 2-1 at 209).
105 Dr. Haney’s research on solitary confinement has been cited by numerous federal courts, including, recently, the Fourth Circuit, see Porter v. Clarke, 923 F.3d 348, 356 (4th Cir. 2019), as amended (May 6, 2019).
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225. Physiological injuries also consistently result from solitary confinement conditions like those at the Jail. These may include decreased inflammatory control, a decline in neural activity, hypertension, heart palpitations, gastrointestinal disorders, severe insomnia, and dementia. Elizabeth Bennion, Banning the Bing: Why Extreme Solitary Confinement Is Cruel and Far Too Usual Punishment, 90 IND. L.J. 741, 762 (2015); Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, 34 Crime & Just. 441, 488-90 (2006).
226. And as neuroendocrinologist and Stanford University Professor Robert Sapolsky explained, the severe stress caused by the Jail’s lockdown conditions is also likely to depress immune response and increase the risk of severe illness and death from COVID-19. See Sapolsky Decl. ¶¶ 33, 39 (Doc. 41-1 at 83-84, 85); accord Haney Decl ¶ 26 (Doc. 2-1 at 209).
227. For those prisoners who have cellmates, “The fact that prisoners are double-celled during the[] lockdown[] does not mitigate the effects of their essentially around-the-clock-in-cell confinement. In fact, it may exacerbate these effects because of the interpersonal tensions and stressors that such unavoidably close around-the-clock contact generates.” Haney Decl. ¶ 20 (Doc. 2-1 at 209).106
106 See also Madrid v. Gomez, 889 F. Supp. 1146, 1229–30 (N.D. Cal. 1995) (“Roughly two-thirds of the inmates are double celled; however, this does not compensate for the otherwise severe level of social isolation in the SHU. The combination of being in extremely close proximity with one other person, while other avenues for normal social interaction are virtually precluded, often makes any long-term, normal relationship with the cellmate impossible. Instead, two persons housed together in this type of forced, constant intimacy have an enormously high risk of becoming paranoid, hostile, and potentially violent towards each other. The existence of a cellmate is thus unlikely to provide an opportunity for sustained positive or normal social contact.”) (citations omitted); Order, Georgia Advocacy Office v. Jackson, No. 1:19-CV-1634-WMR-RDC, Doc. 65 (S.D. Ga. July 23, 2019) (granting preliminary injunction to remedy solitary confinement conditions in which prisoners were double celled).
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228. The consequences of solitary confinement manifest after even relatively short timeperiods. “Notwithstanding that scholars have conducted dozens of studies on the psychological and emotional effects of solitary and segregated confinement, the leading survey of the literature regarding such confinement found that there is not a single published study of solitary or supermax-like confinement in which nonvoluntary confinement lasted for longer than 10 days, where participants were unable to terminate their isolation at will, that failed to result in negative psychological effects.” Porter v. Clarke, 923 F.3d 348, 356 (4th Cir. 2019), as amended (May 6, 2019) (quotations omitted); see also Peoples v. Annucci, 180 F. Supp. 3d 294, 299 (S.D.N.Y. 2016) (“After even relatively brief periods of solitary confinement, inmates have exhibited symptoms such as hypersensitivity to stimuli, perceptual distortions and hallucinations, increased anxiety, lack of impulse control, severe and chronic depression, appetite and weight loss, heart palpitations, sleep problems, and depressed brain functioning”).
229. Although short terms of solitary confinement impose high risks of psychological and physiological harm, longer and indefinite terms of solitary confinement conditions have even greater effects. See, e.g., Terry A. Kupers, Waiting Alone to Die, in Living on Death Row: The Psychology of Waiting to Die 47, 54 (Hans Toch & James Acker eds., 2018).
230. Defendant knew that implementing a generalized lockdown procedure— particularly during a pandemic and while visitation is suspended—would harm detainees.
231. Indeed, on March 26, 2020, just before the lockdown was implemented a Deputy Director of the Department of Corrections said, in an email to all Department staff, “With the existing elevated state of anxiety among inmates and staff, it would be more harmful to isolate inmates.” Doc. 37-22 at 39-40.
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232. Moreover, risk of psychological and physiological harms imposed by the Jail’s lockdown have been repeatedly and explicitly enumerated by Plaintiffs and by experts during this litigation.
233. Nevertheless, the lockdown persists. 234. The indefinite lockdown currently in place at the Jail is not subject to the procedural protections normally afforded to prisoners who are placed on lockdown or other status with limited privileges. 235. According to the Inmate Handbook, prisoners at the Jail who are assigned to special housing status—including maximum security housing or protective custody—will have their status reviewed by the Special Housing Board every seven days for the first two months and every thirty days thereafter. 236. The handbook states that prisoners on disciplinary restriction, who are defined as inmates placed on lockdown to maintain control and safety, may appeal their placement there. And as a general matter, prisoners may request a review of their classification status (which determines housing placement) at any time. 237. However, there is apparently no plan to end the preemptive, generalized lockdown before the pandemic ends.107 238. There is also no plan to, as the CDC Guidance and other public health experts recommend, limit lockdown to prisoners who require quarantine and to the time-period necessary for that quarantine to be effective (the CDC recommends 14 days). See supra ¶¶ 139-40.
107 There is no consensus about when or how the COVID-19 pandemic will end, but public health officials note that if an effective vaccine is developed, it may be available, at the earliest, by early 2021.
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239. Despite this, if the Jail wishes to enact social distancing, there are numerous alternatives to lockdown that the Jail can employ, but is not. These alternatives (unlike preemptive, indefinite lockdown) are recommended by the CDC Guidance. See supra ¶¶ 137-38 (enumerating options to enact social distancing).
240. Critically, throughout the pandemic and the lockdown, the Jail has failed—and continues to fail—to enact meaningful social distancing measures. Prisoners remain crowded together in (for examples) the Jail’s courtroom, in small rooms and hallways, and by the phones. Indeed, the lockdown exacerbates the problem of social distancing by the phones. Thus, prisoners must suffer the effects of the lockdown without actually benefiting from social distancing.
187.241. All of the exhibits cited in and attached to this Complaint are incorporated by reference.
CLASS ACTION ALLEGATIONS 188.242. Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, the individual named Plaintiffs seek to certify two classes with one subclass as follows:  The Pretrial Class is defined as “all people detained in the Prince George’s County Jail who are not detained pursuant to a judgment of conviction.”  The Post-Conviction Class is defined as “all people detained in the Prince George’s County Jail who are detained pursuant to a judgment of conviction.”
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 The Medically Vulnerable Subclass is defined as “all Pretrial Class members whose
medical condition renders them especially vulnerable to the coronavirus as determined by guidelines promulgated by the Centers for Disease Control and Prevention.”108
189.243. The class allegations and law are set forth in more detail in the
accompanying motion for class certification.
190.244. A class action is the only practicable means by which the individual named
Plaintiffs and the class members can challenge Defendant’s unconstitutional actions. Many
members of the class are without the means to retain an attorney to represent them in a civil rights
lawsuit.
191.245. The classes and subclass are so numerous that joinder of all members is
impractical. The number of people in custody exceeds 500. Demographic data regarding the health
of correctional populations, which is set forth above, indicates that the Medically Vulnerable Subclass consists of at least 50 of people (and likely many more).109
192.246. There are questions of law and fact common to all class members and the
subclass, including, among many others:
a. Do the Jail’s conditions create a substantial risk that the people in its custody
will be infected with COVID-19?
108 See U.S. Centers for Disease Control and Prevention, People Who Are At Higher Risk (last reviewed Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html. 109 A sizeable percentage of the jail population is likely medically vulnerable to COVID-19. According to one study, “asthma prevalence is 30%–60% higher among individuals with a history of incarceration as compared with the general population.” Elizabeth M. Vigilanto et al., Mass Incarceration and Pulmonary Health: Guidance for Clinicians, 15 Ann. Am. Thoracic Soc. 409, 409 (2019). Another study estimates that up to 15% of people who are in custody have asthma, 10% of people in custody live with a heart condition that requires medical care, 10% live with diabetes, and 30% have hypertension. See Laura M. Marushack et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, U.S. Dept. of Justice (2014).
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b. Do the Jail’s conditions create a substantial risk that the people in its custody who are infected with COVID-19 will face serious illness, long-term physical damage, or death?
c. If Defendant McDonough acting with deliberate indifference to these risks? d. Is the risk of harm posed by the Jail’s conditions so severe and so immediate
that the only adequate remedy is release? 193.247. The claims of the class representatives are typical of the claims of the classes and of the subclass. That typicality stems from their claim that Defendant McDonough has placed them at significant risk of serious harm by failing to take appropriate steps to address the risk of COVID-19 in the Jail. Every person at the Jail faces a heightened risk of risk of contracting COVID-19 and facing serious illness, physical injury, or death if Defendant does not adequately protected them. 194.248. The claims of the Medically Vulnerable Subclass representatives are typical of the subclass members as well, as each member is subject to increased risk of substantial harm or death due to their existing medical conditions. 195.249. The individual named Plaintiffs will fairly and adequately represent the interests of the classes and subclass. The named Plaintiffs have no conflicts with the unnamed members of the proposed classes. In addition, their lawyers are experienced in federal court civil rights class actions, particularly those involving prisons and jails. 196.250. Defendant McDonough has failed to act in a manner that applies generally to the classes and subclass as a whole, rendering class-wide injunctive and declaratory relief appropriate.
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COUNT I 42 U.S.C. § 1983 (on behalf of all Class members) Eighth and Fourteenth Amendments: Jail Conditions 197.251. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 198.252. Plaintiffs and the classes they represent have been deprived and continue to be deprived by the Defendant of their rights under the Eighth and Fourteenth Amendments to reasonably safe living conditions. Defendant McDonough is aware of the substantial risk of harm that COVID-19 poses to all individuals, and she is further aware of the particular risks of severe illness and possible death that Plaintiffs face as a result of the conditions in the Prince George’s County Jail. Despite this knowledge, Defendant has failed to take reasonable measures to mitigate these dangers. 199.253. As a result of Defendant’s actions and inactions, class members face a substantial risk of contracting COVID-19 and sustaining a serious illness that could lead to death. 200.254. Defendant’s failure to take appropriate steps to curb the substantial threat posed by COVID-19 to each person in his custody, as described more fully above, violates Plaintiff’s rights to unreasonable risk of death and bodily harm. 201.255. Consequently, Defendant is in continuous violation of these Plaintiffs’ rights and the rights of the members of the subclasses under the Eighth and Fourteenth Amendments to the United States Constitution. 202.256. Plaintiffs seek injunctive and declaratory relief against Defendant McDonough to prevent the continued violation of the rights of Plaintiffs and the classes they represent.
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COUNT II 42 U.S.C. § 1983 (on behalf of all Class members)
Fourteenth Amendment: Overdetention 203.257. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 204.258. Defendant’s policy of detaining COVID-positive people in the Jail who are legally entitled to release violates the Fourteenth Amendment. 205.259. As a result of Defendant’s actions and inactions, class members face a substantial risk of harm in the form of unlawful detention. 206.260. All members of both classes are actively seeking to be legally entitled to release, whether by paying bail, acquittal, early release, or some other means. All are at imminent risk of contracting COVID-19. If these class members become legally entitled to release and test positive for COVID-19, the Jail may detain them beyond the date at which they are entitled to release. 207.261. Plaintiffs seek injunctive and declaratory relief against Defendant McDonough to prevent the violation of the rights of Plaintiffs and the classes they represent.
COUNT III Petition for Writs of Habeas Corpus Pursuant to 28 U.S.C. § 2241
(on behalf of Medically Vulnerable Subclass) 208.262. Medically Vulnerable Petitioners repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 209.263. Medically Vulnerable Petitioners are not in custody pursuant to a judgment of conviction of a state court. They are all pretrial detainees, presumed innocent.
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210.264. Respondent McDonough is holding Medically Vulnerable Petitioners in custody in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.
211.265. Due Process forbids exposing Petitioners to a severe risk of death, pain, or permanent severe injury, and there are presently no options available to mitigate that risk quickly enough to protect them other than immediate release from custody.
COUNT IV 42 U.S.C. § 1983 (on behalf of all Class members) Eighth and Fourteenth Amendments: Solitary Confinement 266. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 267. Plaintiffs and the classes they represent have been deprived and continue to be deprived by the Defendant of their rights under the Eighth and Fourteenth Amendments to reasonably safe living conditions. 268. Defendant McDonough is aware of the substantial risk of psychological and physiological harm that the Jail’s indefinite lockdown policy imposes on prisoners but has kept the policy in place for months with no plan to end it. Moreover, Defendant has done so despite the availability of other, more effective means of enacting social distancing. 269. As a result of Defendant’s actions and inactions, class members face a substantial risk of psychological and physiological harm. 270. Consequently, Defendant is in continuous violation of these Plaintiffs’ rights and the rights of the members of the subclasses under the Eighth and Fourteenth Amendments to the United States Constitution.
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271. Plaintiffs seek injunctive and declaratory relief against Defendant McDonough to prevent the continued violation of the rights of Plaintiffs and the classes they represent.
COUNT V 42 U.S.C. § 1983 (on behalf of all Class members) Fourteenth Amendment Due Process: Solitary Confinement 272. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 273. Plaintiffs and the classes they represent have been deprived and continue to be deprived by the Defendant of their state-created liberty interests under the Fourteenth Amendment without due process. 274. Despite the Jail’s policies by which a prisoner may normally challenge his placement in solitary confinement conditions, prisoners at the Jail have been placed in such conditions for months and for an indefinite time period. 275. These conditions constitute an atypical and significant hardship relative to the ordinary incidents of prison life. 276. The Jail lacks any process for determining whether a particular detainee must be placed in these conditions or when these conditions, as a general matter or in a particular housing unit, may end. 277. Consequently, Defendant is in continuous violation of these Plaintiffs’ rights and the rights of the members of the subclasses under the Fourteenth Amendment to the United States Constitution. 278. Plaintiffs seek injunctive and declaratory relief against Defendant McDonough to prevent the continued violation of the rights of Plaintiffs and the classes they represent.
REQUEST FOR RELIEF
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WHEREFORE, Plaintiffs on behalf of themselves and the classes they seek to represent, request that this Court enter judgment in their favor and against Defendant McDonough and order the following relief:
a. Issue a temporary restraining order, preliminary injunction, and final judgment for all Class members requiring Defendant McDonough to implement constitutionally sufficient procedures to protect their health and safety that are consistent with CDC guidelines and the expert judgment of correctional health specialists, including but not limited to: i. Effectively communicate to all prisoners, including low-literacy and nonEnglish-speaking people, sufficient information about COVID-19, measures to reduce the risk of transmission, and any other information necessary to reasonably ensure that these individuals are aware of what precautions they can take to prevent infection; ii. Ensure that each prisoner receives, free of charge: (1) an individual supply of liquid hand soap and paper towels sufficient to allow frequent hand washing and drying each day; (2) tissues, and (3) adequate access to a supply of cleaning and disinfectant products effective against COVID-19 to allow for cleanings of frequently-touched surfaces several times per day; iii. Clean and disinfect frequently-touched surfaces in common areas several times per day, including phones; iv. Waive all fees for sick call for the duration of this pandemic; v. Provide adequate medical care to prisoners, whether because of COVID-19 symptoms, chronic health conditions, or any other medical issue;
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vi. Create and enact social distancing policies that allow for adequate spacing of six feet or more between prisoners;
vii. Ensure that prisoners have adequate access to phones to contact counsel and/or family members such that prisoners need not congregate at the phones;
viii. Provide appropriate Personal Protective Equipment (PPE) to prisoners and Jail staff according to the CDC’s recommendations, and receive appropriate instruction about how to don and doff it;
ix. End preemptive lockdown procedure in general population and instead impose appropriate time-limited quarantines, with that time limit clearly communicated to prisoners, only when necessary due to a known or suspected case of COVID-19, as recommended by medical and public health professionals;
x. Implement appropriate quarantining and medical isolation procedures as recommended by the CDC Guidance;
xi. To the extent a prisoner must enter lockdown or isolation to effectuate an appropriate quarantine or medical isolation procedure, provide appropriate mental health services, and, if that prisoner has a mental health condition, provide enhanced psychological services in these circumstances;
xii. Provide appropriate mental health services to all prisoners; xiii. Ensure that isolation, cohorted isolation, and quarantine cells are reasonably
clean and sanitary, and that prisoners in them receive adequate medical monitoring, adequate hygiene products, reading material, reasonable access
57

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to phones, a daily change of clothes, and the opportunity to shower once daily; xiv. Immediately create and implement a plan that complies with CDC Guidance to minimize transmission to and provide adequate medical monitoring and care to prisoners who are medically vulnerable to COVID-19; xv. Immediately end the policy and practice of detaining COVID-positive people in the Jail who are legally entitled to release. b. To the extent it is necessary to ensure constitutionally sufficient procedures or to protect certain prisoners’ constitutional rights, order Defendant McDonough to transfer prisoners to home detention or another appropriate facility; c. Order immediate release pursuant to a writ or writs of habeas corpus for members of the Medically Vulnerable Subclass; d. If this Court does not immediately release the Medically Vulnerable Subclass, consider subclass members for release on non-monetary bond pending the outcome of their request for habeas relief; e. Issue an order and judgment granting reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988 and 28 U.S.C § 2241; and f. Grant such other relief as this Court deems just and proper.

Dated: April 21July 3, 2020 submitted,

, 2020

Respectfully

By s/Elizabeth Rossi Elizabeth Rossi
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Bar No. 19616 Katherine Chamblee-Ryan application to the Bar of this Court pending Olevia Boykin application forthcoming Ryan C. Downer application pending CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Suite 800 Washington, D.C. 20009 katie@civilrightscorps.org 610-931-7715
Attorneys for Plaintiffs
By: s/Katherine Chamblee-Ryan Katherine Chamblee-Ryan (pro hac vice) Olevia Boykin (pro hac vice) Ryan Downer (pro hac vice) CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Suite 800 Washington, DC 20009 katie@civilrightscorps.org Phone: (610) 931-7715
Edward Williams (Bar No. 20944) Cadene Russell Brooks (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 ed.williams@wilmerhale.com Phone: (202) 663-6487
Attorneys for Plaintiffs
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Case 8:20-cv-01028-PX Document 124-1 Filed 07/07/20 Page 60 of 60 Certificate of Service
I, Elizabeth RossiKatherine Chamblee-Ryan, an attorney, hereby certify that on April 21July 3, 2020, I caused a copy of the foregoing to be filed using the Court’s CM/ECF system. I further certify that I, or another one of Plaintiffs’ attorneys, will promptly serve a copy of the same on General Counsel for the Prince George’s County Department of Corrections’ Office via email.
/s/Elizabeth Rossi /s/Katherine Chamblee-Ryan
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH SETH, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

MARY LOU MCDONOUGH,

)

In her official capacity as Director of )

the Prince George’s County Department )

of Corrections,

)

)

Defendant.

)

)

Case No. 8:20-cv-01028-PX

DIRECTOR MARY LOU MCDONOUGH’S MOTION TO DISMISS THE AMENDED COMPLAINT OR,
ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT

Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil

Procedure, Defendant MARY LOU MCDONOUGH (“Director McDonough”), in

her official capacity as Director of the Prince George’s County Department of

Corrections (“PGCDOC”), hereby moves for entry of an Order dismissing the

Amended Complaint (Doc. No. 120) filed by Plaintiffs KEITH SETH, DAVID

SMITH, MARIO BURCH, and JOHN DOES 1–51 (collectively, the “Plaintiffs”) or,

1 The Amended Complaint identifies five (5) Plaintiffs as “John Does 1–5.” Plaintiffs failed to seek leave of Court for these individuals to proceed by pseudonym or show why the individuals’ identities cannot be disclosed. Director McDonough objects to these individuals proceeding as named plaintiffs (particularly, in light of their claimed status as representatives of a putative class) under pseudonyms and contends that they must disclose their identities if they wish to proceed as parties in this action. Nevertheless, in an abundance of caution pending the Court’s resolution of this issue, Director McDonough will refer to John Does 1–5 by their pseudonyms in this Motion.

Case 8:20-cv-01028-PX Document 128 Filed 07/17/20 Page 2 of 9
alternatively, granting summary judgment in her favor. As grounds for and in
support of this Motion, Director McDonough submits her Memorandum of Law in
Support of the Motion to Dismiss the Amended Complaint or, Alternatively, Motion
for Summary Judgment and further states as follows:
1. The Amended Complaint purports to assert five (5) claims against
Director McDonough:
(1) A conditions-of-confinement claim pursuant to 42 U.S.C. § 1983 for violation of the Eighth and Fourteenth Amendments (Count I, Doc. No. 120 at ¶¶ 251-56);
(2) An over-detention claim pursuant to § 1983 for violation of the Fourteenth Amendment (Count II, Doc. No. 120 at ¶¶ 257-61);
(3) A claim seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241 for “medically vulnerable” pretrial detainees (Count III, Doc. No. 120 at ¶¶ 26265);
(4) A claim pursuant to § 1983 for violation of the Eighth and Fourteenth Amendments related to alleged “psychological and physiological” effects of PGCDOC’s lockdown measures (Count IV, Doc. No. 120 at ¶¶ 266-71); and
(5) A due process claim pursuant to § 1983 for violation of the Fourteenth Amendment related to PGCDOC’s lockdown measures (Count V, Doc. No. 120 at ¶¶ 272-78).
Plaintiffs seek declaratory and injunctive relief on behalf of themselves and classes
of similarly-situated individuals. (Doc. No. 120 at ¶¶ 251-78).
2

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2. As discussed in greater detail in Director McDonough’s Memorandum of Law in Support of the Motion to Dismiss the Amended Complaint or, Alternatively, Motion for Summary Judgment, Plaintiffs’ claims against Director McDonough fail for a variety of reasons, including the following:
(a) The Released Plaintiffs’ claims are moot; (b) Plaintiffs failed to exhaust the administrative
grievance procedures available at the Prince George’s County detention facility (the “Facility”); (c) Plaintiffs’ over-detention claim fails to state a claim for relief; (d) Plaintiffs’ habeas petition fails to state a claim for relief; (e) Count IV fails to state a claim pursuant to § 1983 based on the Facility’s lockdown measures; (f) The Amended Complaint fails to state a due process claim; and (g) The Amended Complaint fails to state a claim for injunctive relief. For these reasons, Plaintiffs’ Amended Complaint is due to be dismissed. 3. All of the Released Plaintiffs’ claims are due to be dismissed as moot because they are no longer in PGCDOC’s custody. “When a case or controversy ceases to exist—either due to a change in the facts or the law—the litigation is moot, and the court’s subject matter jurisdiction ceases to exist also.” Porter v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017) (internal quotation omitted). “[A]s a general rule, a
3

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prisoner’s transfer or release from a particular prison moots his claims for injunctive and declaratory relief with respect to his incarceration there.” Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009). “Once an inmate is removed from the environment in which he is subjected to the challenged policy or practice, … he no longer has a legally cognizable interest in a judicial decision on the merits of his claim.” Incumaa v. Ozmint, 507 F.3d 281, 287 (4th Cir. 2007). The Court lacks subject-matter jurisdiction over the Released Plaintiffs’ claims because they are no longer in PGCDOC’s custody.
4. Plaintiffs’ failure to exhaust PGCDOC’s administrative grievance requires the dismissal of their claims. The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e et seq., requires a detainee to exhaust all available administrative remedies prior to filing a suit in federal court challenging jail conditions. Jones v. Bock, 549 U.S. 199, 211 (2007); Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Plaintiffs never filed any grievances whatsoever related to any of their claims in this matter. Therefore, the Amended Complaint is due to be dismissed due to Plaintiffs’ failure to exhaust the administrative remedies available to them through the grievance process.
5. Plaintiffs’ over-detention claim fails to state a claim for relief. Plaintiffs do not allege that they suffered any constitutional deprivation from overdetention. To adequately allege a § 1983 claim, “one must allege that he, himself,
4

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sustained a [constitutional] deprivation….” Inmates v. Owens, 561 F.2d 560, 56263 (4th Cir. 1977) (emphasis added). Moreover, Plaintiffs lack standing to obtain any relief with respect to their over-detention claim. See Deal v. Mercer Cnty. Bd. of Educ., 911 F.3d 183, 187 (4th Cir. 2018). Finally, Plaintiffs fail to allege any liability for Director McDonough pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), related to the detention of any individual at the Facility. See Hunter v. Town of Mocksville, N.C., 897 F.3d 538, 554 (4th Cir. 2018); Milligan v. City of Newport News, 743 F.2d 227, 229-30 (4th Cir. 1984).
6. Plaintiffs’ habeas petition pursuant to 28 U.S.C. § 2241 fails to state a claim upon which relief could be granted and is due to be dismissed. As recognized by the Supreme Court, “habeas corpus is an attack by a person in custody upon the legality of that custody, and [ ] the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The Fourth Circuit repeatedly held, albeit in unpublished decisions, that “conditions-ofconfinement claims are not cognizable in habeas proceedings.” See, e.g., Wilborn v. Mansukhani, 795 F. App’x 157, 162, 163 (4th Cir. 2019) (per curiam) (noting that the “Supreme Court has not definitively addressed” the question); Rodriguez v. Ratledge, 715 F. App’x 261, 265-66 (4th Cir. 2017) (per curiam); Braddy v. Wilson, 580 F. App’x 172, 173 (4th Cir. 2014) (per curiam). “[C]ourts have generally held that a § 1983 suit or a Bivens action is the appropriate means of challenging
5

Case 8:20-cv-01028-PX Document 128 Filed 07/17/20 Page 6 of 9
conditions of confinement, whereas § 2241 petitions are not.” Rodriguez, 715 F. App’x at 266. “Plaintiffs’ habeas claim, at its core, is a challenge to prison conditions.” (Doc. No. 84 at 18). Thus, Plaintiffs’ petition for a writ of habeas corpus is due to be dismissed.
7. Plaintiffs also fail to state a § 1983 related to lockdown measures at the Facility. Plaintiffs do not allege they suffered any constitutional deprivation due to the lockdown measures. See Owens, 561 F.2d at 562-63. Furthermore, the alleged circumstances of the lockdown do not equate to “solitary confinement,” and therefore do not involve the risk of harm associated with solitary confinement. See Porter v. Clarke, 923 F.3d 348, 353-54, 357, 360 (4th Cir. 2019). Finally, Director McDonough reasonably determined that the lockdown constituted a “necessary [measure] to protect the well-being of prison employees, inmates, and the public….” Id. at 363. The “lockdown measures implemented” at the Facility “worked to contain the spread of COVID-19 when staff and detainees began testing positive.” (Doc. No. 84 at 13).
8. Plaintiffs’ due process claim is due to be dismissed for multiple reasons. As with their other claims, Plaintiffs do not allege that their due process rights were violated. See Owens, 561 F.2d at 562-63. Moreover, Plaintiffs fail to allege conditions related to the lockdown measures at the Facility implicating due process protections. See Dilworth v. Adams, 841 F.3d 246, 251-52 (4th Cir. 2016); Beverati
6

Case 8:20-cv-01028-PX Document 128 Filed 07/17/20 Page 7 of 9
v. Smith, 120 F.3d 500, 502 (4th Cir. 1997). Finally, there can be no question that the lockdown measures were “reasonably related to a legitimate non-punitive governmental objective,” i.e. preventing the spread of COVID-19. See Williamson v. Stirling, 912 F.3d 154, 174 (4th Cir. 2018).
9. Finally, Plaintiffs’ request for injunctive relief exceeds the scope of possible remedial relief available to Plaintiffs and is due to be dismissed. The COVID-19 pandemic “poses particularly acute challenges for the administration of the country’s jails and prisons,” including administration of the Facility. Swain v. Junior, 961 F.3d 1276, 1280 (11th Cir. 2020). “[P]rison officials are faced with the unenviable (and often thankless) task of maintaining institutional order and security while simultaneously taking proper care of the individuals in their custody.” Id. The challenges of operating a detention facility fall “peculiarly within the province and professional expertise of corrections officials, and … courts should ordinarily defer to their expert judgment in such matters.” Bell v. Wolfish, 441 U.S. 520, 548 (1979). Furthermore, Plaintiffs’ request for injunctive relief would violate the PLRA’s neednarrowness-intrusiveness requirements and cause an “adverse impact on public safety [and] the operation of a criminal justice system.” 18 U.S.C. § 3626(a)(1)(A). Plaintiffs’ request for injunctive relief is due to be denied.
WHEREFORE, PREMISES CONSIDERED, Director McDonough respectfully requests that this Court issue an Order dismissing the Amended
7

Case 8:20-cv-01028-PX Document 128 Filed 07/17/20 Page 8 of 9
Complaint in its entirety for lack of subject-matter jurisdiction under Rule 12(b)(1)
and failure to state a claim under Rule 12(b)(6) or, alternatively, granting summary
judgment in favor of Director McDonough.2
Respectfully submitted,
RHONDA L. WEAVER COUNTY ATTORNEY
ANDREW J. MURRAY DEPUTY COUNTY ATTORNEY
/s/ Shelley L. Johnson
Shelley Lynn Johnson, Fed. Id. 15853 Ann Elizabeth Koshy, Fed. Id. 19333 PRINCE GEORGE’S COUNTY OFFICE OF LAW Wayne K. Curry Administration Building 1301 McCormick Drive Suite 4100 Largo, Maryland 20774 Telephone: (301) 952-5225 Facsimile: (301) 952-3071 ajmurray@co.pg.md.us sljohnson@co.pg.md.us aekoshy@co.pg.md.us
William R. Lunsford (pro hac vice) Stephen C. Rogers (pro hac vice) Kenneth S. Steely (pro hac vice) MAYNARD, COOPER & GALE, PC 655 Gallatin Street Huntsville, AL 35801 Telephone: (256) 512-5710
2 Director McDonough does not waive, but instead expressly preserves and asserts, all defenses pursuant to Rule 8, which she will assert in an answer to any claims which survive this motion.
8

Case 8:20-cv-01028-PX Document 128 Filed 07/17/20 Page 9 of 9

Filed: 07/17/20

Facsimile: (256) 512-0119 blunsford@maynardcooper.com srogers@maynardcooper.com ksteely@maynardcooper.com

9

Case 8:20-cv-01028-PX Document 128-1 Filed 07/17/20 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH SETH, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

MARY LOU MCDONOUGH,

)

In her official capacity as Director of )

the Prince George’s County Department )

of Corrections,

)

)

Defendant.

)

)

Case No. 8:20-cv-01028-PX

DIRECTOR MARY LOU MCDONOUGH’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE AMENDED COMPLAINT OR,
ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT

Case 8:20-cv-01028-PX Document 128-1 Filed 07/17/20 Page 2 of 42
TABLE OF CONTENTS Table of Contents ........................................................................................................i Table of Authorities ................................................................................................ iii Introduction ................................................................................................................1 Plaintiffs’ Amended Complaint .................................................................................3 Undisputed Relevant Facts ........................................................................................5 Standard of Review....................................................................................................7 Argument.................................................................................................................... 8
I. The Released Plaintiffs’ Claims are Moot ................................................8 II. Plaintiffs Failed to Exhaust the Administrative Grievance Procedures
Available at the Facility............................................................................10 III. Plaintiffs’ Over-Detention Claim Fails to State a Claim for Relief .........13 IV. Plaintiffs’ Habeas Petition Fails to State a Claim ....................................15 V. Count IV Fails to State a § 1983 Claim Based on the Lockdown
Measures ...................................................................................................18 VI. The Amended Complaint Fails to State a Due Process Claim.................22
a. Director McDonough did not violate Plaintiffs’ substantive due process rights.......................................................................................22
b. Director McDonough did not violate Plaintiffs’ procedural due process rights.......................................................................................26
VII. The Amended Complaint Fails to State a Claim for Injunctive Relief....28
i

Case 8:20-cv-01028-PX Document 128-1 Filed 07/17/20 Page 3 of 42
Conclusion ...............................................................................................................33 Certificate of Service ...............................................................................................35
ii

Case 8:20-cv-01028-PX Document 128-1 Filed 07/17/20 Page 4 of 42
TABLE OF AUTHORITIES
Cases
Alvarez v. Larose, --- F.Supp.3d ---, Case No.: 20-cv-00782-DMS (AHG) (S.D. Cal. May 12, 2020) ...............................................................................................................................17
Ashcroft v. Iqbal 556 U.S. 662 (2009) ...............................................................................................7
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................ 8, 19, 20, 25
Bell v. Wolfish, 441 U.S. 520 (1979) ....................................................................................... 29, 30
Booth v. Churner, 532 U.S. 731 (2001) ..............................................................................................12
Braddy v. Wilson, 580 F. App’x 172 (4th Cir. 2014) .........................................................................16
Cagle v. Hutto, 177 F.3d 253 (4th Cir. 1999).................................................................................29
Catawba Riverkeeper Found. v. N.C. Dep’t of Transp., 843 F.3d 583 (4th Cir. 2016)...................................................................................9
Deal v. Mercer Cnty. Bd. of Educ., 911 F.3d 183 (4th Cir. 2018).................................................................................14
Dilworth v. Adams, 841 F.3d 246 (4th Cir. 2016).......................................................................... 23, 27
EEOC v. Perf. Food Grp., Inc., 16 F. Supp. 3d 584 (D. Md. 2014) ..........................................................................8
Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 566 U.S. 318 (2012) ..............................................................................................21
Francis v. Giacomelli, 588 F.3d 186 (4th Cir. 2009)..................................................................................8
iii

Case 8:20-cv-01028-PX Document 128-1 Filed 07/17/20 Page 5 of 42
Greene v. Lau, Civil Action No. RDB-19-1217 (D. Md. Sept. 24, 2019).....................................12
Greensboro Prof. Fire Fighters Ass’n, Local 3157 v. City of Greensboro, 64 F.3d 962 (4th Cir. 1995)...................................................................................15
Hallinan v. Scarantino, --- F.Supp.3d ---, No. 5:20-HC-2088-FL, (W.D.N.C. June 11, 2020) ................17
Hill v. Robeson Cnty., N.C., 733 F. Supp. 2d 676 (E.D.N.C. 2010) .....................................................................19
Hines v. Anderson, 547 F.3d 915 (8th Cir. 2008).................................................................................33
Hunter v. Town of Mocksville, N.C., 897 F.3d 538 (4th Cir. 2018).................................................................................15
In re Long Term Admin. Seg. of Inmates Designated as Five Percenters, 174 F.3d 464 (4th Cir. 1999).................................................................................21
Incumaa v. Ozmint, 507 F.3d 281 (4th Cir. 2007).............................................................................9, 10
Incumaa v. Stirling, 791 F.3d 517 (4th Cir. 2015).................................................................... 24, 25, 28
Inmates v. Owens, 561 F.2d 560 (4th Cir. 1977).......................................................................... 14, 19
Jones v. Bock, 549 U.S. 199 (2007) ..............................................................................................11
Kentucky v. Graham, 473 U.S. 159 (1985) ..............................................................................................14
Kilpatrick v. Hollifield, 592 F. App’x 199 (4th Cir. 2015) .........................................................................12
Lee v. Winston, 717 F.2d 888 (4th Cir. 1983).................................................................................17
iv

Case 8:20-cv-01028-PX Document 128-1 Filed 07/17/20 Page 6 of 42
Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006).................................................................................30
Milligan v. City of Newport News, 743 F.2d 227 (4th Cir. 1984).................................................................................15
Monell v. New York City Department of Social Services, 436 U.S. 658 (1978) ..............................................................................................15
Moore v. Bennette, 517 F.3d 717 (4th Cir. 2008).................................................................................11
Owens v. Balt. City State’s Attys.’ Office, 767 F.3d 379 (4th Cir. 2014).................................................................................15
Porter v. Clarke, 290 F. Supp. 3d 518 (E.D. Va. 2018) ...................................................................29
Porter v. Clarke, 852 F.3d 358 (4th Cir. 2017)...................................................................................8
Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019).............................................................. 18, 20, 21, 22
Preiser v. Rodriguez, 411 U.S. 475(1973) ...............................................................................................16
Price v. Johnston, 334 U.S. 266 (1948) ..............................................................................................24
Pyler v. Moore, 100 F.3d 365 (4th Cir. 1996).................................................................................29
Rendelman v. Rouse, 569 F.3d 182 (4th Cir. 2009)...................................................................................9
Reynolds v. Wagner, 128 F.3d 166 (3d Cir. 1997)..................................................................................33
Rodriguez v. Ratledge, 715 F. App’x 26 (4th Cir. 2017) ...........................................................................16
v

Case 8:20-cv-01028-PX Document 128-1 Filed 07/17/20 Page 7 of 42
Ross v. Blake, 136 S. Ct. 1850 (2016) ..........................................................................................12
Sandin v. Conner, 515 U.S. 472 (1995) ....................................................................................... 21, 22
Scott v. Siddiqui, Case No. 17-cv-1127-JPG-SCW (S.D. Ill. Apr. 5, 2018).....................................33
Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994)...................................................................................19
Spires v. MetLife Group, Inc. 18-CV-4464 (RA), 2019 WL 4464393 (S.D.N.Y. Sept. 18, 2019) ........................8
Swain v. Junior, 961 F.3d 1276 (11th Cir. 2020)...................................................................... 22, 30
Thompson v. Opoku, Civil Action No.: ELH-18-1022 (D. Md. Feb. 28, 2020) .............................. 11, 12
Toure v. Hott, --- F.Supp.3d ---, Civil Action No. 1:20-cv-395 (E.D. Va. Apr. 29, 2020)... 17, 18
U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337 (4th Cir. 2009) ..................................8 Wilborn v. Mansukhani,
795 F. App’x 157 (4th Cir. 2019) .........................................................................16 Williamson v. Stirling,
912 F.3d 154 (4th Cir. 2018)................................................................. 23,25,27,28
Statutes 18 U.S.C. § 3626(a)(1)(A) ................................................................................ 29, 32 28 U.S.C. § 2241 .............................................................................................. Passim 42 U.S.C. § 1983 .............................................................................................. Passim The Prison Litigation Reform Act (“PLRA”),
42 U.S.C. § 1997e et seq., ............................................................................. Passim
vi

Case 8:20-cv-01028-PX Document 128-1 Filed 07/17/20 Page 8 of 42
Rules Fed. R. Civ. P. 12(b)(1)............................................................................... 14, 17, 39 Rule 12(b)(6)..................................................................................................... 19, 35
vii

Case 8:20-cv-01028-PX Document 128-1 Filed 07/17/20 Page 9 of 42
Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, Defendant MARY LOU MCDONOUGH (“Director McDonough”), in her official capacity as Director of the Prince George’s County Department of Corrections (“PGCDOC”), hereby submits this Memorandum of Law in Support of her Motion to Dismiss or, Alternatively, Motion for Summary Judgment regarding the Amended Complaint (Doc. No. 120) filed by Plaintiffs KEITH SETH, DAVID SMITH, MARIO BURCH, and JOHN DOES 1–51 (collectively, the “Plaintiffs”).
INTRODUCTION Like the emperor with his “new clothes,” Plaintiffs refuse to acknowledge the obvious, insurmountable obstacle to their claims: Director McDonough acted swiftly and systemically to protect the individuals housed within Prince George’s County detention facility (the “Facility”) from COVID-19 and ensure they received constitutionally appropriate care. In a continuing attempt to manufacture a basis for this litigation, Plaintiffs’ amended pleading continues to ignore the current circumstances within the Facility. Rather than amend their allegations in light of the thousands of pages of operational documents provided to them, the report by the
1 The Amended Complaint identifies five (5) Plaintiffs as “John Does 1–5.” Plaintiffs failed to seek leave of Court for these individuals to proceed by pseudonym or show why the individuals’ identities cannot be disclosed. Director McDonough objects to these individuals proceeding as named plaintiffs (particularly, in light of their claimed status as representatives of a putative class) under pseudonyms and contends that they must disclose their identities if they wish to proceed as parties in this action. Nevertheless, in an abundance of caution pending the Court’s resolution of this issue, Director McDonough will refer to John Does 1–5 by their pseudonyms in this brief.
1

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Court’s independent inspector, and the Court’s findings during the June 22, 2020, hearing, Plaintiffs incredibly copy and paste the same allegations set forth in their initial pleading—allegations which Plaintiffs and their counsel know to be false. (See Doc. No. 120 at 1, n. 2). For example, the Amended Complaint alleges that Plaintiffs remain within the Facility, but, more than a month ago, Plaintiffs admitted that five (5) Plaintiffs were no longer in the custody of Prince George’s County Department of Corrections (“PGCDOC”). (Cf. id. at ¶¶ 14-21 with Ex. A hereto (Plts.’ Supp. Interrog. Resp.) at 3-4). Even if Plaintiffs’ Amended Complaint did not include blatant falsehoods (readily known to Plaintiffs and their counsel), Plaintiffs cannot utilize the United States Constitution in an effort to gain control over the Facility’s operations and undermine Director McDonough’s authority and discretion to continue to operate in the Facility in a manner that ensures the safety and security of staff and incarcerated individuals.
As discussed in greater detail below, Plaintiffs’ claims against Director McDonough fail for the following reasons:
(1) The Released Plaintiffs’ claims are moot; (2) Plaintiffs failed to exhaust the administrative
grievance procedures available at the Facility; (3) Plaintiffs’ over-detention claim fails to state a claim
for relief; (4) Plaintiffs’ habeas petition fails to state a claim for
relief;
2

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(5) Count IV fails to state a claim pursuant to 42 U.S.C. § 1983 based on the Facility’s lockdown measures;
(6) The Amended Complaint fails to state a due process claim; and
(7) The Amended Complaint fails to state a claim for injunctive relief.
For these reasons, Plaintiffs’ Amended Complaint is due to be dismissed. PLAINTIFFS’ AMENDED COMPLAINT
In Plaintiffs’ Amended Complaint, they seek injunctive and declaratory relief as well as a habeas petition pursuant to 28 U.S.C. § 2241 against Director McDonough based on Plaintiffs’ status as current and former detainees at the Facility. (Doc. No. 120 at ¶¶ 14-21, 251-78). Plaintiffs, who include both pre-trial and post-conviction detainees, take issue with the measures implemented by Director McDonough and the other members of PGCDOC’s leadership in responding to protect the detainees2 housed at the Facility from COVID-19. (Id.).
The Amended Complaint alleges that COVID-19 constitutes a highly contagious infectious disease. (Id. at ¶¶ 27, 65). Preventing the spread of the virus within a detention facility represents a challenging task due, in part, to the difficulties in maintaining social distancing. (Id. at ¶¶ 59-67). Moreover, COVID-19 can spread
2 For the sake of simplicity, this brief will refer to the individuals in PGCDOC’s custody as “detainees,” regardless of whether the individuals are awaiting trial or have been convicted.
3

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from a detention facility into the surrounding community. (Id. at ¶ 61). In early April, a detainee awaiting release under a satisfied bond remained in custody due to pending COVID-19 test results. (Id. at ¶¶ 183-86). Plaintiffs do not allege that Director McDonough knew of this individual’s detention or that his extended detention resulted from any policy or custom instituted by her. (See id. generally).
Due to the potential for spreading COVID-19 within detention facilities, the United States Centers for Disease Control (“CDC”) and other public health officials recommended detention facilities restrict movement within their facilities, e.g., implement lockdowns, to prevent the spread of COVID-19. (Id. at ¶¶ 138-40, n. 81). “Lockdown[s] … [strengthen] public health [by] … enabl[ing] social distancing during a pandemic….” (Id. at ¶ 140, n. 81).
Consistent with the CDC guidance, PGCDOC implemented lockdown measures at the Facility in early April 2020. (Id. at ¶¶ 132; Doc. No. 2-1 at 267 (CDC’s recommendations)). The lockdown measures, while restrictive, nonetheless provided detainees with extensive social interaction, including the assignment of cellmates. (Id. at ¶ 143). Members of PGCDOC’s staff checked on the detainees in their cells at least twice a day. (Id. at ¶ 210). Detainees also interacted on a regular basis with members of the medical and mental health staffs in response to requests for attention. (Id. at ¶¶ 157, 202). Detainees received the opportunity for daily phone calls to family members, friends, and counsel. (Id. at ¶ 196). Furthermore,
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the detainees receive up to two (2) hours of out-of-cell time each day in groups of ten (10) detainees. (Id. at ¶¶ 191, 200).
PGCDOC also ensured detainees receive opportunities to stay physically and mentally fit. Detainees took daily showers. (Id. at ¶ 134). Detainees engaged in recreational activities, including outdoor recreation. (Id. at ¶¶ 134, 196, 200). PGCDOC also provided the detainees with reading materials, including books and newspapers. (Id. at ¶¶ 205-06).
The lockdown and other measures implemented by Director McDonough successfully contained the spread of COVID-19 at the Facility. (Doc. No. 84 at 13). Nevertheless, Director McDonough and the other members of PGCDOC’s leadership have continually evaluated operational policies to pursue the effective means to limit transmission of COVID-19. (Doc. No. 120 at ¶¶ 136, 191, 237).
UNDISPUTED RELEVANT FACTS Facts which Plaintiffs cannot fairly dispute compel the dismissal of their claims at this stage of the proceedings. Importantly, five (5) of the eight (8) Plaintiffs are no longer in PGCDOC’s custody. (Declaration of Major Luke Dixon (“Dixon Decl.”), attached hereto as Exhibit B, at ¶ 4; Ex. A (Plts.’ Supp. Interrog. Resp.) at 3-4).3 PGCDOC released Plaintiffs Keith Seth, Mario Burch, John Doe No. 2, John
3 Director McDonough is filing Exhibits A and B hereto under seal because they contain the names of John Does 1–5.
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Doe No. 3, and John Doe No. 5 (collectively, the “Released Plaintiffs”) prior to Plaintiffs filing the Amended Complaint. (See id.). Indeed, Plaintiffs’ counsel knew of the Released Plaintiffs’ release from PGCDOC’s custody more than two (2) weeks prior to filing the Amended Complaint, which nonetheless alleges those Plaintiffs remain at the Facility. (Cf. Ex. A (Plts.’ Supp. Interrog. Resp.) at 3-4 with Doc. No. 120 at ¶¶ 14-21).
Furthermore, Plaintiffs failed to exhaust the administrative grievance procedures available to them at the Facility with respect to their claims in this action. (Dixon Decl. at ¶ 12). PGCDOC maintains a grievance procedure that allows detainees at the Facility to voice a complaint regarding any matter related to their confinement. (Id. at ¶¶ 5-11; PGC-152–53). During the initial entry phase at the Facility, every detainee receives a copy of the Inmate Handbook, which outlines the grievance process. (Id. at ¶ 6). In addition, PGCDOC posts the relevant excerpts from the Inmate Handbook, which contain written descriptions of the grievance process, in every housing unit at the Facility. (Id.). Detainees submit grievances to the members of PGCDOC’s staff on a regular basis, and the detainees are well aware of how to utilize the grievance process. (Id. at ¶ 7).
The members of PGCDOC’s staff seek to resolve detainees’ concerns through an informal grievance process by speaking with the detainee. (Id. at ¶ 8). If the informal grievance process does not resolve a detainee’s concerns, the detainee must
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complete an Inmate Grievance Form and submit the form to the zone commander over the detainee’s housing unit. (Id. at ¶ 9; PGC-152–53, PGC-3730). The zone commander submits a completed grievance form up the chain of command to the chief over the relevant division at the Facility. (Id. at ¶ 10; PGC-152–53). The division chief renders a decision on a detainee’s written grievance, and the detainee receives a copy of his or her Inmate Grievance Form with the written decision included. (Id.). The inmate may appeal the grievance decision to Director McDonough within five (5) days if the detainee is not satisfied with the grievance decision. (Id. at ¶ 11; PGC-152–53). Director McDonough’s decision on the grievance appeal represents the final stage of the grievance process at the Facility, although a detainee may seek further recourse in state court. (Id.).
Since January 1, 2020, despite being aware of the grievance process, no Plaintiff initiated any aspect of the grievance process. (Id. at ¶¶ 7, 12).
STANDARD OF REVIEW “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted) (internal quotations omitted)). “[A] plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
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544, 555 (2007) (citations omitted) (internal quotation marks omitted)). “‘[N]aked

assertions’ of wrongdoing necessitate some ‘factual enhancement’ within the

complaint to cross ‘the line between possibility and plausibility of entitlement to

relief.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting

Twombly, 550 U.S. at 557)).

In considering a Rule 12(b)(1) motion to dismiss, a court may consider

materials outside the pleadings, such as affidavits. U.S. ex rel. Vuyyuru v. Jadhav,

555 F.3d 337, 347-48 (4th Cir. 2009). A plaintiff bears the burden of proving

subject-matter jurisdiction by a preponderance of the evidence. Id.

ARGUMENT

I.

THE RELEASED PLAINTIFFS’ CLAIMS ARE MOOT.

All of the claims by Plaintiffs Seth, Burch, John Doe No. 2, John Doe No. 3,

and John Doe No. 5 are due to be dismissed as moot. A federal court’s jurisdiction

“extends only to actual cases or controversies.” Porter v. Clarke, 852 F.3d 358, 363

(4th Cir. 2017) (citing U.S. Const., Art. III, § 2). “When a case or controversy ceases

to exist—either due to a change in the facts or the law—the litigation is moot, and

the court’s subject matter jurisdiction ceases to exist also.” Id. (internal quotation

omitted). “A case becomes moot … when the issues presented are no longer ‘live’

or the parties lack a legally cognizable interest in the outcome.” Catawba

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Riverkeeper Found. v. N.C. Dep’t of Transp., 843 F.3d 583, 588 (4th Cir. 2016).
The doctrine of mootness precludes the Released Plaintiffs’ claims.
“[A]s a general rule, a prisoner’s transfer or release from a particular prison
moots his claims for injunctive and declaratory relief with respect to his
incarceration there.” Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009). The
Fourth Circuit repeatedly held that a plaintiff’s release from custody moots any
claims for prospective relief and deprives the court of subject-matter jurisdiction
over such claims.4 “Once an inmate is removed from the environment in which he
is subjected to the challenged policy or practice, … he no longer has a legally
cognizable interest in a judicial decision on the merits of his claim.” Incumaa v.
Ozmint, 507 F.3d 281, 287 (4th Cir. 2007).
The mootness doctrine applies with equal force to habeas petitions.5 A habeas
petition seeking a detainee’s release from custody necessarily becomes moot upon
4 See Rendelman, 569 F.3d at 186 (affirming dismissal of injunctive relief claim as moot in light of inmate’s release from custody); Inmates v. Owens, 561 F.2d 560, 562-63 (4th Cir. 1977) (inmates’ release from county jail mooted their claims for injunctive, declaratory, and habeas relief); Incumaa v. Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007) (inmate’s transfer mooted his claims for injunctive and declaratory relief because he was no longer subject to the challenged policy, practice, or condition); Moneyhan v. Keller, 563 F. App’x 256, 258 (4th Cir. 2014) (inmate’s release mooted his injunctive relief claim); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991) (an inmate’s transfer mooted his claims for injunctive and declaratory relief). 5 See Owens, 561 F.2d at 562 (“A dismissal due to mootness likewise results even if the suit … is treated as one seeking habeas corpus relief instead of relief under the civil rights and declaratory judgment statutes since the prisoners are no longer subjected to the alleged conditions of which they complained.”); Reyes v. U.S. I.N.S., 141 F. App’x 96, 97 (4th Cir. 2005) (alien detainee’s release on parole mooted his appeal of the denial of habeas corpus); Quarterman v. Young, Case No. 5:18-cv-01461, 2020 WL 3442841 at *5-6 (S.D. W.Va. Mar. 11, 2020) (plaintiff’s release
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the detainee’s release from custody because the detainee achieved what he or she sought—release from custody.6 As such, the black letter law in the Fourth Circuit compels the dismissal of Released Plaintiffs’ claims.
The current status of Released Plaintiffs moots their claims. (See Ex. A (Plts.’ Supp. Interrog. Resp.) at 3-4; Dixon Decl. at ¶ 4). Released Plaintiffs seek only injunctive, declaratory, and habeas relief, i.e. prospective relief, related to the policies, procedures, and conditions at the Facility. (Doc. No. 120 at ¶¶ 251-278). Their release from PGCDOC’s custody thus deprives this Court of subject-matter jurisdiction over their claims because they no longer possess “a legally cognizable interest in a judicial decision on the merits of [their] claim[s].” Ozmint, 507 F.3d at 287. Plaintiffs’ release from custody also moots their habeas petition because they received the relief they sought—release from custody. Therefore, pursuant to Rule 12(b)(1), the Released Plaintiffs’ claims are due to be dismissed. II. PLAINTIFFS FAILED TO EXHAUST THE ADMINISTRATIVE GRIEVANCE
PROCEDURES AVAILABLE AT THE FACILITY.
from custody rendered moot his habeas petition), report and recommendation adopted, Case No. 5:18-cv-01461, 2020 WL 3441969 (S.D. W.Va. June 23, 2020). 6 See Williams v. Holland, 735 F. App’x 120, 121 (4th Cir. 2018) (dismissing appeal of the denial of a habeas petition as moot in light of the appellant’s release from custody); Quarterman, 2020 WL 3442841 at *5-6; Sneed v. Joyner, No. 5:18-cv-02448-DCC-KDW, 2019 WL 2090849, at *2 (D.S.C. Mar. 19, 2019), report and recommendation adopted, No. 5:18-cv-02448-DCC, 2019 WL 2089544 (D.S.C. May 13, 2019) (habeas petition was moot in light of petitioner’s release).
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Plaintiffs’ failure to exhaust the administrative grievance procedures available
at the Facility requires the dismissal of their claims.7 The Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e et seq., requires a detainee to exhaust all available
administrative remedies prior to filing a suit in federal court challenging jail
conditions. Jones v. Bock, 549 U.S. 199, 211 (2007); Moore v. Bennette, 517 F.3d
717, 725 (4th Cir. 2008). The PLRA’s exhaustion requirements apply to “all inmate
suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.” Thompson
v. Opoku, Civil Action No.: ELH-18-1022, 2020 WL 978681, at *13 (D. Md. Feb.
28, 2020) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)). The PLRA’s
exhaustion requirements unquestionably apply to Plaintiffs’ claims.
No “special circumstances” exception exists to excuse a detainee from the
obligation to exhaust all administrative remedies before filing suit. See Ross v.
Blake, 136 S. Ct. 1850, 1858 (2016) (striking down the “special circumstances”
7 Courts routinely hold that the defense of failure to exhaust administrative remedies is properly raised in a motion to dismiss. See, e.g., Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) cert. denied 555 U.S. 1074 (2008) (“Because exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, an exhaustion defense … is not ordinarily the proper subject for a summary judgment; instead, it should be raised in a motion to dismiss….”) (internal quotations and citations omitted). However, if the Court determines that Director McDonough’s defense of failure to exhaust administrative remedies is more properly considered as a motion for summary judgment, Director McDonough requests the Court to alternatively grant her summary judgment dismissing Plaintiffs’ claims for their failure to exhaust administrative remedies under the PLRA. See Mitchell v. Stump, Civil Action No. PX-17-2056, 2018 WL 4468855, at *5 (D. Md. Sept. 18, 2018) (granting summary judgment and dismissing plaintiff’s complaint for failure to exhaust administrative remedies before filing suit); Ward v. Warden, Civil No. PX-17-3084, 2018 WL 2129735, at *5 (D. Md. May 9, 2018) (same).
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exception to the PLRA’s exhaustion requirement). A detainee must exhaust the available administrative remedies “regardless of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741 (2001). Accordingly, an inmate must comply with all steps, processes, and procedural rules that the agency holds out as an administrative remedy. Kilpatrick v. Hollifield, 592 F. App’x 199, 200 (4th Cir. 2015); Greene v. Lau, Civil Action No. RDB-19-1217, 2019 WL 4643945, at *3 (D. Md. Sept. 24, 2019). “If [a] plaintiff’s claim has not been properly presented through the administrative remedy procedure it must be dismissed.…” Thompson, 2020 WL 978681, at *13 (alteration in original) (emphasis added).
Plaintiffs failed to exhaust the administrative remedies available to them at the Facility prior to initiating this action. PGCDOC maintains a grievance procedure whereby detainees at the Facility can receive an administrative review of their complaints. (Dixon Decl. at ¶¶ 5-11; PGC-152–53); Greene, 2019 WL 4643945, at *1. Detainees know of and routinely utilize the grievance procedure. (Dixon Decl. at ¶ 7). However, since January 1, 2020, Plaintiffs never filed any grievances whatsoever related to any of their claims in this matter. (Id. at ¶ 12). This Court routinely dismisses inmate complaints under such circumstances.8 Therefore, the
8 See, e.g., Greene, 2019 WL 4643945, at *1-4 (dismissing complaint by detainee who failed to utilize PGCDOC’s grievance process); Mitchell, 2018 WL 4468855, at *5 (granting summary judgment and dismissing plaintiff’s complaint for failure to exhaust administrative remedies before filing suit); Ward, 2018 WL 2129735, at *5 (same); Wooten v. U.S. BOP, Civil Action No. GLR-
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Amended Complaint is due to be dismissed due to Plaintiffs’ failure to exhaust the administrative remedies available to them through the grievance process. III. PLAINTIFFS’ OVER-DETENTION CLAIM FAILS TO STATE A CLAIM FOR
RELIEF. Plaintiffs’ over-detention claim pursuant to 42 U.S.C. § 1983 is due to be dismissed pursuant to Rule 12(b)(6) for failing to state a claim. Plaintiffs allege that “the Jail” “resorted to unlawful means to control the virus’s spread outside of” the Facility by “refus[ing] to release COVID-positive prisoners who have paid bail (or are otherwise legally entitled to release) until [the Jail] deems them non-contagious.” (Doc. No. 120 at ¶ 183). Plaintiffs do not allege that Director McDonough instituted a formal policy of over-detention or knew of any incidents of over-detention. (See generally id.). Conspicuously, Plaintiffs only allege that a single detainee, who was not a Plaintiff, was over detained as a precaution against spreading COVID-19 into the community. (Id. at ¶¶ 183-86). Stated differently, the Amended Complaint does not allege that any Plaintiff was subjected to over-detention. (See generally id.). The Amended Complaint fails to state an over-detention claim for a variety of reasons. First, at the most basic level, Plaintiffs do not allege that they suffered any constitutional deprivation from over-detention. To adequately allege a § 1983 claim,
16-3565, 2018 WL 1083733, at *5 (D. Md. Feb. 28, 2018) (same); Burris v. Hoffman, CIVIL ACTION NO. DKC-15-3773, 2015 WL 9268574, at *2 (D. Md. Dec. 21, 2015) (dismissing inmate’s complaint because the inmate failed to exhaust administrative remedies).
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“one must allege that he, himself, sustained a [constitutional] deprivation….” Inmates v. Owens, 561 F.2d 560, 562-63 (4th Cir. 1977) (emphasis added). As such, Plaintiffs cannot bring any § 1983 claim because they did not suffer any injury.
Second, and for this same reason, Plaintiffs lack standing to obtain declaratory or injunctive relief. “To satisfy the irreducible constitutional minimum of standing, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Deal v. Mercer Cnty. Bd. of Educ., 911 F.3d 183, 187 (4th Cir. 2018) (internal quotation, citation, and punctuation omitted). Plaintiffs cannot satisfy any, much less all, of these elements for standing.
Third, even if Plaintiffs adequately alleged they suffered a constitutional violation due to over-detention (they do not), the Amended Complaint fails to allege liability for Director McDonough. Because Plaintiffs sued Director McDonough in her official capacity as PGCDOC’s director, they sued, in effect, Prince George’s County, Maryland. See Kentucky v. Graham, 473 U.S. 159, 165 (1985). Pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), “a municipality is liable only for its own illegal acts.” Owens v. Balt. City State’s Attys.’ Office, 767 F.3d 379, 402 (4th Cir. 2014) (emphasis in original). A municipality will become liable only if its “policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official
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policy, inflicts the injury.” Hunter v. Town of Mocksville, N.C., 897 F.3d 538, 554 (4th Cir. 2018). Although “continued inaction in the face of a known history of widespread constitutional deprivations” may support an inference of a municipal policy or custom, “isolated constitutional deprivations by municipal employees” do not establish § 1983 liability for a municipality. Milligan v. City of Newport News, 743 F.2d 227, 229-30 (4th Cir. 1984).
Here, Plaintiffs do not allege that Director McDonough instituted any policy of over-detention. Plaintiffs only allege a single instance of over-detention at the Facility. (Doc. No. 120 at ¶¶ 183-86). However, a single instance of over-detention cannot, by definition, equate to the “widespread and permanent” practice necessary to demonstrate a custom attributable to Director McDonough. Greensboro Prof. Fire Fighters Ass’n, Local 3157 v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995) (affirming summary judgment in light of only two (2) prior similar incidents). Thus, the Amended Complaint fails to state a § 1983 claim for over-detention. IV. PLAINTIFFS’ HABEAS PETITION FAILS TO STATE A CLAIM.
Plaintiffs’ habeas petition pursuant to 28 U.S.C. § 2241 fails to state a claim upon which relief could be granted and is due to be dismissed. “[H]abeas corpus is an attack by a person in custody upon the legality of that custody, and [ ] the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Thus, traditionally, habeas petitions challenge
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“the very fact or duration of [a petitioner’s] physical imprisonment, and the relief that [the petitioner] seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment.” Id. at 500. Such petitions constitute “the essence” or “the heart of habeas corpus.” Id. at 484, 498.
A conditions-of-confinement claim does not constitute a cognizable habeas petition pursuant to § 2241. The Fourth Circuit repeatedly held, albeit in unpublished decisions, that “conditions-of-confinement claims are not cognizable in habeas proceedings.” See, e.g., Wilborn v. Mansukhani, 795 F. App’x 157, 162, 163 (4th Cir. 2019) (per curiam) (noting that the “Supreme Court has not definitively addressed” the question); Rodriguez v. Ratledge, 715 F. App’x 261, 265-66 (4th Cir. 2017) (per curiam); Braddy v. Wilson, 580 F. App’x 172, 173 (4th Cir. 2014) (per curiam). “[C]ourts have generally held that a § 1983 suit or a Bivens action is the appropriate means of challenging conditions of confinement, whereas § 2241 petitions are not.” Rodriguez, 715 F. App’x at 266; see also Lee v. Winston, 717 F.2d 888, 892 (4th Cir. 1983) (noting “the main thrusts of [a habeas petition and § 1983 suit] are obviously quite different”). The Fourth Circuit’s consistent holdings on this issue compel the dismissal of Plaintiffs’ habeas petition pursuant to § 2241.
Where, as here, a plaintiff alleges a correctional or detention facility responded inadequately to the COVID-19 pandemic, a habeas proceeding does not constitute the proper proceeding for such a claim. See, e.g., Hallinan v. Scarantino,
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--- F.Supp.3d ---, No. 5:20-HC-2088-FL, 2020 WL 3105094, at *1, 10-13 (W.D.N.C. June 11, 2020); Toure v. Hott, --- F.Supp.3d ---, Civil Action No. 1:20cv-395, 2020 WL 2092639, at *1, 5-8 (E.D. Va. Apr. 29, 2020); Alvarez v. Larose, --- F.Supp.3d ---, Case No.: 20-cv-00782-DMS (AHG), 2020 WL 2315807, at *1-4 (S.D. Cal. May 12, 2020). Such allegations “clearly present[ ] a challenge to the conditions of Plaintiffs’ confinement.” Alvarez, 2020 WL 2315807, at *4 (emphasis added). For example, in Alvarez, a group of detainees brought a habeas petition seeking the release of “medically vulnerable” detainees due the “Defendants’ alleged inaction in controlling the COVID-19 outbreak at” their facility through increased social distancing, sanitation, and compliance with the CDC guidelines. Id. at *2, 4. The Court found that the claims in Alvarez could not be brought in a habeas proceeding because those “claims would not exist but for the[ detainees’] current conditions of confinement.” Id. at *3.
In the memorandum opinion on Plaintiffs’ motion for a temporary restraining order, the Court found that “Plaintiffs’ habeas claim, at its core, is a challenge to prison conditions.” (Doc. No. 84 at 18). Plaintiffs’ pleading alleged “the very conditions that, if remedied, would mitigate the risk to all detainees, including the [medically vulnerable] subclass.” (Id.). Thus, the Court concluded that it “cannot plausibly read this Complaint as bringing” a challenge to the fact of Plaintiffs’ confinement at the Facility. (Id.). The Amended Complaint did not remedy this
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issue. In light of the “entrenched” view of the Fourth Circuit that a conditions-ofconfinement claim is not proper for a habeas proceeding, Toure, 2020 WL 2092639, at *8, Plaintiffs’ habeas petition is due to be dismissed. V. COUNT IV FAILS TO STATE A § 1983 CLAIM BASED ON THE LOCKDOWN
MEASURES. Count IV of the Amended Complaint fails to state a claim for relief pursuant to 42 U.S.C. § 1983 based on the alleged psychological and physiological effects of PGCDOC’s lockdown measures. Plaintiffs’ own allegations regarding the risk posed by COVID-19 prove fatal to this claim. Count IV fails for at least three (3) reasons. First, the Amended Complaint fails to identify any Plaintiff who experienced any harmful effects from the lockdown or that any Plaintiff faced “a substantial risk of serious harm” from the lockdown. Porter v. Clarke, 923 F.3d 348, 360 (4th Cir. 2019) (internal quotation omitted). The Amended Complaint alleges a wide variation in circumstances for the detainees subject to the Facility’s lockdown. (See Doc. No. 120 at ¶¶ 187-215). For example, the variation in the detainees’ circumstances extends to the amount of outof-cell time, the amount of recreational time, the provision of mental health services, the extent of interaction with staff members and other detainees, use of the outdoor recreation area, the extent of communication with attorneys and family members, and access to reading materials. (Id.). However, the Amended Complaint remains
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silent with respect to Plaintiffs’ circumstances at the Facility and, therefore, fails to articulate any purported risk of harm to justify Plaintiffs’ claims.
By failing to include any allegations regarding Plaintiffs’ circumstances, the Amended Complaint does not allege any constitutional deprivation to Plaintiffs with respect to the lockdown or draw the necessary causal link to a policy or custom instituted by the County. To adequately allege a § 1983 claim, “one must allege that he, himself, sustained a [constitutional] deprivation….” Owens, 561 F.2d at 562-63 (emphasis added). Plaintiffs must allege “an affirmative causal link” between a policy or custom instituted by Director McDonough and a “particular constitutional injury suffered by plaintiff[s].” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (addressing the appeal of a summary judgment ruling); Hill v. Robeson Cnty., N.C., 733 F. Supp. 2d 676, 688-89 (E.D.N.C. 2010) (dismissing a § 1983 claim against a county). Plaintiffs may not rely on the Court’s speculation that they suffered a constitutional deprivation related to the Facility’s lockdown. See Twombly, 550 U.S. at 555. Because the Amended Complaint does not allege a “particular constitutional injury” to Plaintiffs due to the lockdown, it fails to state a claim for relief against Director McDonough.
Second, as alleged in the Amended Complaint, the circumstances at the Facility do not equate to “solitary confinement,” regardless of Plaintiffs’ use of that label, or implicate the possible risk of harm related to “solitary confinement.” See
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Twombly, 550 U.S. at 555 (holding that the pleading standard “requires more than labels and conclusions”). Plaintiffs rely heavily on Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019) , with respect to Count IV, but the facts in Porter are easily distinguishable from the Amended Complaint’s factual allegations. In Porter, the Fourth Circuit concluded that Virginia’s death row inmates experienced solitary confinement because, among other reasons, they were housed “for years, between 23 and 24 hours a day alone,” in small, “non-adjacent cells with solid steel doors” without the opportunity for interaction with other inmates. Id. at 353-54, 357, 360 (internal quotation and citation omitted). In contrast to the facts in Porter, the Amended Complaint alleges that the detainees at the Facility receive up to two (2) hours of out-of-cell time each day in groups of ten (10) detainees in addition to the interactions with their cellmates. (Doc. No. 120 at ¶¶ 143, 191, 200). Furthermore, in stark contrast to the “years” of solitary confinement at issue in Porter, PGCDOC only implemented the lockdown in early April, i.e. approximately three (3) months ago. (Id. at ¶ 132). Thus, Plaintiffs’ conclusory allegations regarding the risk of harm associated with solitary confinement remain irrelevant and fail to articulate any basis for any actionable claim against Director McDonough.
Third, even if Plaintiffs alleged they face a “substantial risk of serious harm” due to the lockdown (they do not), they fail to allege § 1983 liability for Director McDonough because the lockdown was instituted as a necessary response to the
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health risk posed by the COVID-19 pandemic. “[E]ven though … conditions [of confinement] create an objective risk of serious emotional and psychological harm[,] … prison officials tasked with the difficult task of operating a detention center may reasonably determine that prolonged solitary confinement is necessary to protect the well-being of prison employees, inmates, and the public….” Porter, 923 F.3d at 363 (finding that the district court erred in disregarding the defendants’ argument “that legitimate penological considerations justified the challenged conditions”). “The difficulties of operating a detention center must not be underestimated by the courts.” Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 566 U.S. 318, 326 (2012). Courts appropriately defer to the designated officials in the operation of correctional and detention facilities, Sandin v. Conner, 515 U.S. 472, 482 (1995), and the “rationale for judicial deference is greatest when the maintenance of prison order is at stake.” In re Long Term Admin. Seg. of Inmates Designated as Five Percenters, 174 F.3d 464, 469 (4th Cir. 1999) (abrogated on other grounds by Porter). Such deference unquestionably applies with respect to the decision to implement a lockdown at the Facility.
The pandemic required extraordinary measures to prevent the spread of COVID-19 at the Facility and protect the health of the detainees and staff members. See Swain v. Junior, 961 F.3d 1276, 1280 (11th Cir. 2020) (noting that the pandemic “poses particularly acute challenges for the administration of the country’s jails and
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prisons”). As the Court found, the “lockdown measures implemented” at the Facility
“worked to contain the spread of COVID-19 when staff and detainees began testing
positive.” (Doc. No. 84 at 13). Courts routinely recognize that such restrictions on
movement to prevent the spread of infectious disease comply with constitutional
standards.9 Plaintiffs’ philosophical disagreement with the temporary lockdown at
the Facility does not suffice to state a § 1983 claim in light of the deference due to
Director McDonough.10 See Porter, 923 F.3d at 363; Sandin, 515 U.S. at 482. Thus,
Count IV is due to dismissed for failure to state a claim.
VI. THE AMENDED COMPLAINT FAILS TO STATE A DUE PROCESS CLAIM.
Plaintiffs’ due process claim related to the lockdown measures also fails to a
state a claim for relief and is due to be dismissed. Although unclear in certain
respects, the Amended Complaint appears to allege a claim for both procedural and
substantive due process violations. (Doc. No. 120 at ¶¶ 234-40, 272-78). The
9 See Sample v. Angelone, 173 F.3d 425 (Table), 1999 WL 52347 (4th Cir. 1999) (affirming the dismissal of an inmate’s claim based on his confinement in restrictive housing after refusing to submit to a tuberculosis test); McCormick v. Stalder, 105 F.3d 1059, 1061-62 (5th Cir. 1997) (holding that confined housing for medical observation related to possible tuberculosis was appropriate); Karolis v. N.J. Dep’t of Corr., 935 F. Supp. 523, 530 (D.N.J. 1996) (placing inmates who refused tuberculosis testing in isolation “serves the penological interest of preserving the health of inmates and prison employees”). 10 Plaintiffs take an inherently inconsistent position with respect to the lockdown. On the one hand, Plaintiffs allege that Director McDonough violated the Constitution because “[t]he Jail’s limited attempts at social distancing measures are markedly careless.” (Doc. No. 120 at ¶¶ 93, 99, 251-56). On the other hand, Plaintiffs allege she violated the Constitution by enforcing social distancing by means of the lockdown. (Id. at ¶¶ 266-71). Plaintiffs’ inconsistency demonstrates the exact reasons why the Constitution does not permit Plaintiffs’ counsel to second guess the vast experience held by correctional authorities such as Director McDonough.
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Amended Complaint fails to state a due process claim whether analyzed under the procedural or substantive due process framework.
a. Director McDonough did not violate Plaintiffs’ substantive due process rights.
The substantive due process standard differs slightly depending on whether a claim is brought by a pretrial or post-conviction detainee. See Dilworth v. Adams, 841 F.3d 246, 251-52 (4th Cir. 2016). “Typically, a substantive due process claim pursued by a pretrial detainee challenges the general conditions of confinement or the treatment of detainees in a specific facility.” Williamson v. Stirling, 912 F.3d 154, 174 (4th Cir. 2018). The “central inquiry” concerns “whether the conditions imposed on the pretrial detainee constitute ‘punishment.’” Id. (citing Bell v. Wolfish, 441 U.S. 520, 535-39 (1979)); Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988)). Pretrial detainees only receive substantive due process protections for a “punishment” imposed on them. Dilworth, 841 F.3d at 252. To establish that a restriction or condition constitutes a “punishment,” a pretrial detainee must allege that it was either “(1) imposed with an expressed intent to punish or (2) not reasonably related to a legitimate non-punitive governmental objective.” Williamson, 912 F.3d at 174 (internal quotation omitted).
With respect to post-conviction detainees, “to prevail on either a procedural or substantive due process claim, [they] must first demonstrate that they were deprived of ‘life, liberty, or property’ by governmental action.” Beverati v. Smith,
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120 F.3d 500, 502 (4th Cir. 1997) (citations omitted). “Lawful incarceration brings about the necessary withdrawal of many privileges and rights.” Price v. Johnston, 334 U.S. 266, 285 (1948). To trigger due process protections, post-trial detainees must allege their “confinement conditions … impose ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Incumaa v. Stirling, 791 F.3d 517, 526 (4th Cir. 2015) (quoting Sandin, 515 U.S. at 484).
The analysis for whether confinement conditions impose an “atypical and significant hardship” involves a two-step process. Incumaa, 791 F.3d at 527. First, a court must determine the “normative baseline” of the inmate population for comparative purposes in determining whether a particular inmate’s conditions are “atypical.” Id. For a detainee in general population, the general population inmates’ conditions provide “the baseline for atypicality.” Id. Second, a court must decide “whether the prison conditions [for the inmate] impose atypical and substantial hardship in relation to that norm.” Id.
The Amended Complaint fails to state a claim for substantive due process under the standard for either pre-trial or post-conviction detainees. First, as stated in Section V supra, the Amended Complaint’s generalized allegations regarding the lockdown do not include any allegations regarding the Plaintiffs. (See Doc. No. 120 at ¶¶ 187-215, 233-40). Stated differently, the Amended Complaint forces the Court to speculate as to whether Plaintiffs experienced conditions of confinement which
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were punitive, “not reasonably related to a legitimate non-punitive governmental objective,” or an “atypical and significant hardship … in relation to the ordinary incidents of prison life.” See Williamson, 912 F.3d at 174; Incumaa, 791 F.3d at 526. Plaintiffs erroneously invite the Court to speculate that Plaintiffs suffered a violation of their substantive due process rights and that Director McDonough is liable for such a violation. See Twombly, 550 U.S. at 555. The substantive due process claim is due to be dismissed.
Second, even if the Court speculated that the Amended Complaint’s allegations regarding the lockdown encompassed Plaintiffs, the allegations do not state a substantive due process violation with respect to the detainees at the Facility. With respect to the pre-trial detainees’ substantive due process rights, the lockdown measures were “reasonably related to a legitimate non-punitive governmental objective,” i.e. preventing the spread of COVID-19. (Doc. No. 84 at 13). With respect to the post-conviction detainees, the lockdown measures do not constitute an “atypical and significant hardship” because all of the detainees remained subject to the lockdown measures. (See Doc. No. 120 at ¶¶ 187-215, 233-40). Furthermore, Director McDonough and the other members of the Facility’s leadership continue to review the necessity for the lockdown restrictions, and the lockdown will remain in place as only as long as necessary during the pandemic. (See id. at ¶¶ 191 (describing revisions to the lockdown measures), 136 (alleging the lockdown’s
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duration was tied to the pandemic), 247 (same)). Indeed, courts consistently find
that conditions of confinement much more onerous than the Facility’s lockdown comport with substantive due process.11 Thus, Plaintiffs’ substantive due process
claim is due to be dismissed.
b. Director McDonough did not violate Plaintiffs’ procedural due process rights.
The Amended Complaint also fails to state a claim for procedural due process.
“A pretrial detainee challenging individually-imposed restrictions … is entitled to
pursue a procedural due process claim.” Williamson, 912 F.3d at 174. The
procedural due process protections for a pretrial detainee “vary according to whether
a restriction was imposed for disciplinary or administrative purposes.” Id. at 175.
With respect to restrictions imposed for disciplinary reasons, procedural due process
requires the detainee receive “notice of the alleged misconduct, a hearing, and a
written explanation of the resulting decision.” Id. However, the procedural due
process requirements lessen significantly if the restrictions exist for operational,
11 See Beverati, 120 F.3d at 504 (no due process violation when inmates were placed in administrative restrictive housing for six (6) months with limited out-of-cell time in “cells [that] were infested with vermin; were smeared with human feces and urine; and were flooded with water from a leak in [a] toilet”); Freeland v. Ballard, No. 2:11-cv-443, 2011 WL 7394619, at *2-3 (S.D. W.Va. Aug. 18, 2011) (recommending dismissal of a due process claim despite alleged 16-month assignment to “lockdown”), recommendation adopted by, Civil Action No. 2:11-cv-443, 2012 WL 523707 (S.D. W.Va. Feb. 16, 2012); Gatewood v. Jukenelis, Civil Action No. ELH-16-1644, 2017 WL 149136, at *8 (D. Md. Apr. 26, 2017) (“A temporary assignment to segregated confinement— … [for] even six months, with reduced privileges, few out-of-cell activities or socialization opportunities, and heightened security measures—is not atypical or a significant hardship.”).
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security, or administrative needs. Id. Procedural due process with respect to administrative restrictions must provide the detainee with “an informal, nonadversary review” of the reasons for the restriction, “including submissions from the detainee, within a reasonable time after” imposition of the restriction. Id. at 18284 (internal quotation omitted). To address operational concerns, jail officials may take “immediate” action to impose administrative restrictions prior to initiating the due process procedures. Id.; Dilworth, 841 F.3d at 255.
With respect to post-conviction detainees’ procedural due process claims, “to prevail … [they] must first demonstrate that they were deprived of ‘life, liberty, or property’ by governmental action.” Beverati, 120 F.3d at 502 (citations omitted). Post-conviction detainees must allege their “confinement conditions … impose ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Incumaa, 791 F.3d at 526 (quoting Sandin, 515 U.S. at 484). Plaintiffs’ procedural due process claim falls far short of meeting the due process standard for either pre-trial or post-conviction detainees.
The Amended Complaint fails to state a claim for procedural due process. As an initial matter, and as stated supra, the Amended Complaint does not include any allegations regarding Plaintiffs’ conditions of confinement related to the Facility’s lockdown measures or any failure to provide Plaintiffs with procedural due process. In fact, the Amended Complaint does not allege that Director McDonough deprived
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any pre-trial or post-conviction detainee of procedural due process with respect to the lockdown. (See Doc. No. 120 at ¶¶ 187-215, 233-40); Williamson, 912 F.3d at 174-75, 182-84 (describing procedural due process protections for pre-trial detainees); Incumaa, 791 F.3d at 527 (describing procedural due process standard). Thus, Plaintiffs’ procedural due process claim fails because they do not allege any constitutional deprivation or any causal link to Director McDonough. VII. THE AMENDED COMPLAINT FAILS TO STATE A CLAIM FOR INJUNCTIVE
RELIEF. Plaintiffs’ request for injunctive relief exceeds the scope of possible remedial relief available to Plaintiffs and is due to be dismissed. For the reasons stated throughout this brief, Plaintiffs’ Amended Complaint is due to be dismissed in its entirety. However, to the extent that the Court does not dismiss all of Plaintiffs’ claims, their request for injunctive relief fails to state a claim pursuant to applicable law and is due to be dismissed pursuant to Rule 12(b)(6). Constitutional and statutory limitations restrict the scope of remedial relief which courts may impose to correct a constitutional violation with respect to the operation of a detention facility. See Bell, 441 U.S. at 547-48; Pyler v. Moore, 100 F.3d 365, 369 (4th Cir. 1996). Congress enacted the PLRA to provide “reasonable limits on the remedies available in lawsuits concerning prison conditions.” Pyler, 100 F.3d at 369 (internal quotation omitted). The PLRA “remove[d] the federal
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district courts from the business of supervising the day-to-day operation of state prisons.” Cagle v. Hutto, 177 F.3d 253, 257 (4th Cir. 1999).
Any prospective injunctive relief with respect to the operation of a detention facility must comply with the PLRA’s need-narrowness-intrusiveness requirements. See 18 U.S.C. § 3626(a)(1)(A); Porter v. Clarke, 290 F. Supp. 3d 518, 536-37 (E.D. Va. 2018). Before providing any prospective injunctive relief, a court must find “that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation….” 18 U.S.C. § 3626(a)(1)(A) ; Pyler, 100 F.3d at 369. Furthermore, a “court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U.S.C. § 3626(a)(1)(A) (emphasis added).
The PLRA codified the long-standing doctrine of judicial deference to jail and correctional administrators in the operation of their facilities. “[T]he problems that arise in the day-to-day operation of a [detention] facility are not susceptible of easy solutions.” Bell, 441 U.S. at 547. “The Supreme Court has long cautioned that ‘courts are ill equipped to deal with the increasingly urgent problems of prison administration.’” Lovelace v. Lee, 472 F.3d 174, 199 (4th Cir. 2006) (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974)). The challenges of operating a detention facility fall “peculiarly within the province and professional expertise of
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corrections officials, and … courts should ordinarily defer to their expert judgment in such matters.” Bell, 441 U.S. at 548. Thus, a correctional official must “be accorded wide-ranging deference in the adoption and execution of policies that in [her] judgment are needed to preserve internal order and discipline….” Id.
The COVID-19 pandemic “poses particularly acute challenges for the administration of the country’s jails and prisons,” including administration of the Facility. Swain, 961 F.3d at 1280. “[P]rison officials are faced with the unenviable (and often thankless) task of maintaining institutional order and security while simultaneously taking proper care of the individuals in their custody.” Id. But, rather than acknowledging Director McDonough’s unique expertise in operating the Facility in response to the pandemic, Plaintiffs’ request for injunctive relief reflects their eagerness to wrest control over the day-to-day operations of the Facility from her and the Facility’s staff. Stated differently, Plaintiffs invite the Court to assume micro-management of the Facility’s operations.
Plaintiffs’ request for injunctive relief grossly transgresses the PLRA’s neednarrowness-intrusiveness requirements, even assuming Plaintiffs’ claims are not dismissed (they should be). The following requests for injunctive relief, among others, violate the PLRA:
 “Waive all fees for sick call for the duration of th[e] pandemic”;
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 “Provide adequate medical care to prisoners [for] … any … medical issue”;
 “Provide appropriate mental health services to all prisoners”;
 “[T]ransfer prisoners to home detention or another appropriate facility”; and
 “Order immediate release … for members of the Medically Vulnerable Subclass.”
(Doc. No. 120 at 56-57). As an initial matter, Plaintiffs’ request for release from custody or transfer to
a different facility violates the PLRA on its face. This Court previously found that the PLRA applies to Plaintiffs’ request for release or transfer. (See Doc. No. 84 at 17-18, 30-31). The Amended Complaint fails to state a request for such relief pursuant to the PLRA, which, among other things, requires the institution of a threejudge court prior to any inmate release order. See 18 U.S.C. § 3626(a)(3). The release or transfer of Plaintiffs would also violate the PLRA’s need-narrownessintrusiveness requirements and cause an “adverse impact on public safety [and] the operation of a criminal justice system.” 18 U.S.C. § 3626(a)(1)(A) . Consistent with the PLRA’s clear terms, courts consistently reject requests for the release or transfer
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of inmates in COVID-19 cases.12 Thus, Plaintiffs are not entitled to release from
custody or transfer, even if they succeeded on their claims (they will not).
Plaintiffs’ other requests for injunctive relief also violate the PLRA. For
example, Plaintiffs’ vague, sweeping demand for an injunction touching all aspects
of medical and mental health care at the Facility ignores the limits set by the PLRA.
Such an injunction would not constitute “narrowly drawn,” “least intrusive means,”
“extend[ing] no further than necessary,” to address Plaintiffs’ concerns related to the pandemic.13 See 18 U.S.C. § 3626(a)(1)(A) ; see also Scott v. Siddiqui, Case No.
17-cv-1127-JPG-SCW, 2018 WL 4403310, at *3 (S.D. Ill. Apr. 5, 2018) (the
inmate’s “vague and broad” request for an injunction enjoining the defendants to
provide “necessary medical care” violated PLRA because it was not narrowly
drawn), report and recommendation adopted, Case No. 3:17-cv-1127-JPG-SCW,
2018 WL 2931967 (S.D. Ill. June 12, 2018) ; Hines v. Anderson, 547 F.3d 915, 921-
12 See Alvarez, 2020 WL 2315807, at *4 (concluding that transfer of inmates due to the COVID19 pandemic did not comply with the PLRA); Money v. Pritzer, Case No. 20-cv-2093, 2020 WL 1820660, at *12-14 (N.D. Ill. Apr. 10, 2020) (concluding the request to release prisoners due to COVID-19 violated the PLRA’s requirement to narrowly draw relief); Coleman v. Newsom, Case No. 2:90-cv-0520 KJM DB P (E.D. Cal.) & Plata v. Newsom, Case No. 4:01-cv-01351-JST (N.D. Cal.), --- F. Supp. 3d. ---, 2020 WL 1675775, at *4 (Three-Judge Court Apr. 4, 2020) (denying inmates’ release due to COVID-19, in part, because of the PLRA). 13 Of course, Plaintiffs’ request for injunctive relief requiring Director McDonough to provide “adequate medical care” and “appropriate mental health services” also fails because such an injunction would not comply with Rule 65’s specificity requirement and would constitute an impermissible “obey the law” injunction. See CPC Intern., Inc. v. Skippy, Inc., 214 F.3d 456, 459 (4th Cir. 2000) (outlining Rule 65’s requirements for an injunction); City of N.Y. v. U.S. Dep’t of Def., 913 F.3d 423, 431 (4th Cir. 2019) (noting an “obey the law” injunction is “disfavored”).
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22 (8th Cir. 2008) (affirming termination of consent decree when broad injunctive relief related to health care was not narrowly tailored under PLRA). Moreover, Plaintiffs’ request for an order directing Director McDonough to waive all sick call fees fails under the PLRA. Reynolds v. Wagner, 128 F.3d 166, 173 (3d Cir. 1997) (“There is, of course, no general constitutional right to free health care.”). In sum, Plaintiffs’ request for injunctive relief far exceeds the scope of possible remedial relief available to Plaintiffs and is due to be dismissed.
CONCLUSION For the foregoing reasons, Director McDonough respectfully requests that this Court issue an Order dismissing the Amended Complaint in its entirety for lack of subject-matter jurisdiction under Rule 12(b)(1) and failure to state a claim under Rule 12(b)(6) or, alternatively, granting summary judgment in favor of Director McDonough.14
14 Plaintiffs’ extraordinary decision to hide the exposed, defenseless nature of their claims by regurgitating the disproven allegations from their initial pleading limited the arguments which Director McDonough could bring in a motion to dismiss the Amended Complaint. Stated differently, Director McDonough remains confident that the undisputed facts, including those facts cited in the Court’s June 22, 2020, hearing, will demonstrate that her leadership of PGCDOC through this pandemic comports with constitutional standards. Director McDonough does not waive, but instead expressly preserves and asserts, all defenses pursuant to Rule 8, which she will assert in an answer to any claims which survive this motion.
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Respectfully submitted,
RHONDA L. WEAVER COUNTY ATTORNEY
ANDREW J. MURRAY DEPUTY COUNTY ATTORNEY
/s/ Shelley L. Johnson
Shelley Lynn Johnson, Fed. Id. 15853 Ann Elizabeth Koshy, Fed. Id. 19333 PRINCE GEORGE’S COUNTY OFFICE OF LAW Wayne K. Curry Administration Building 1301 McCormick Drive Suite 4100 Largo, Maryland 20774 Telephone: (301) 952-5225 Facsimile: (301) 952-3071 ajmurray@co.pg.md.us sljohnson@co.pg.md.us aekoshy@co.pg.md.us
William R. Lunsford (pro hac vice) Stephen C. Rogers (pro hac vice) Kenneth S. Steely (pro hac vice) MAYNARD, COOPER & GALE, PC 655 Gallatin Street Huntsville, AL 35801 Telephone: (256) 512-5710 Facsimile: (256) 512-0119 blunsford@maynardcooper.com srogers@maynardcooper.com ksteely@maynardcooper.com
Filed: 07/17/20
34

Case 8:20-cv-01028-PX Document 128-2 Filed 07/17/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Keith Seth, et al.
Plaintiff,
v.
Mary Lou McDonough

*

*

Case No. 8:20 cv 1028 PX

*

Defendant.

*

Check one.

NOTICE OF FILING OF DOCUMENT UNDER SEAL

X

Exhibit A

Defendant's Motion to Dismiss Amended Complaint
which is an attachment to

or, alternatively Motion for Summary Judgment

will be electronically filed under seal within 24 hours of the filing of this Notice.

(title of document)
will be electronically filed under seal within 24 hours of the filing of this Notice.

I certify that at the same time I am filing this Notice, I will serve copies of the document

identified above by electronic mail.

.

07/17/20
Date

Signature
15853
Printed Name and Bar Number

1301 McCormick Drive, Suite 4100, Largo, MD 20774
Address
sljohnson@co.pg.md.us
Email Address
(301) 952-3932
Telephone Number
(301) 952-3071
Fax Number

NoticeofFilingofDocumentUnderSeal (11/2017)

Case 8:20-cv-01028-PX Document 128-3 Filed 07/17/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Keith Seth, et al.
Plaintiff,
v.
Mary Lou McDonough

*

*

Case No. 8:20 cv 1028 PX

*

Defendant.

*

Check one.

NOTICE OF FILING OF DOCUMENT UNDER SEAL

X

A Exhibit

Defendant's Motion to Dismiss Amended Complaint
which is an attachment to

or, alternatively Motion for Summary Judgment

will be electronically filed under seal within 24 hours of the filing of this Notice.

(title of document)
will be electronically filed under seal within 24 hours of the filing of this Notice.

I certify that at the same time I am filing this Notice, I will serve copies of the document

identified above by electronic mail.

.

07/17/20
Date

Signature
15853
Printed Name and Bar Number

1301 McCormick Drive, Suite 4100, Largo, MD 20774
Address
sljohnson@co.pg.md.us
Email Address
(301) 952-3932
Telephone Number
(301) 952-3071
Fax Number

NoticeofFilingofDocumentUnderSeal (11/2017)

 Case 8:20-cv-01028-PX Document 135 Filed 08/07/20 Page 1 of 43

UNITED STATES DISTRICT COURT FORT THE DISTRICT OF MARYLAND

Keith Seth, et al.,

: : Plaintiffs,

: v.

Mary Lou McDonough, in her official capacity as Director of the Prince George’s County Department of Corrections

: :

Civ. Action No. 20-cv-1028-PX

Defendant. :

:

:

MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS THE AMENDED COMPLAINT OR,
ALTERNATIVELY, SUMMARY JUDGMENT _________________________________________________

Case 8:20-cv-01028-PX Document 135 Filed 08/07/20 Page 2 of 43
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... II
BACKGROUND .............................................................................................................................1 A. Factual and Procedural History ...........................................................................1 B. Defendant’s Statement of “Undisputed” Facts ...................................................3
STANDARD OF REVIEW..............................................................................................................4
ARGUMENT ...................................................................................................................................5
I. DEFENDANT’S PROCEDURAL ARGUMENTS ARE MERITLESS .............................................6 A. Released Named Plaintiffs’ Class Action Claims Are Not Moot .......................6 B. The PLRA’s Administrative Exhaustion Requirement Does Not Bar Plaintiffs’ Claims....................................................................................................8 C. Plaintiffs Properly Carried Forward Allegations From The Initial Complaint ...............................................................................................................9
II. THE COURT SHOULD DENY DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ NEW CLAIMS ..............................................................................................................................10 A. Plaintiffs State Eighth and Fourteenth Amendment Violations Based On The Jail’s Lockdown Conditions................................................................................10 1. Plaintiffs Have Pled An Unreasonable Risk of Serious Harm...................10 2. Plaintiffs Have Pled Deliberate Indifference .............................................15 3. Defendant’s Remaining Arguments are Meritless .....................................17 B. Plaintiffs Have Stated Violations of Substantive and Procedural Due Process ...................................................................................................................19 1. Pretrial Plaintiffs Have Pled Substantive Due Process Violations ............19 2. Pretrial Plaintiffs Have Pled Procedural Due Process Violations..............23 3. Post-Conviction Plaintiffs Have Pled Procedural Due Process Violations ...................................................................................................25 4. Defendant’s Procedural Arguments Regarding Plaintiffs’ Substantive and Procedural Due Process Claims Fail..........................................................28
III. THIS COURT SHOULD DENY DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ ORIGINAL CLAIMS ............................................................................................................29 A. Plaintiffs Stated Fourteenth Amendment Overdetention Claims ...................29 B. Plaintiffs’ Habeas Claim is Cognizable Under § 2241 ......................................32
IV. PLAINTIFFS PLEAD CLAIMS FOR INJUNCTIVE RELIEF.....................................................33
CONCLUSION ..............................................................................................................................35
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TABLE OF AUTHORITIES
Page(s)
Federal Cases
Alvarez v. Larose, Case No. 20-cv-00782-DMS, 2020 WL 2315807 (S.D. Cal. May 9, 2020)............................35
Bacon v. Greene, 319 F. App’x 256 (4th Cir. 2009) (per curiam) .........................................................................9
Banks v. Booth, 20-cv-849, Doc. 100 (D.D.C. June 18, 2020) ..........................................................................11
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).................................................................................................................31
Bell v. Wolfish, 441 U.S. 520 (1979)...........................................................................................................20, 21
Estate of Bryant v. Baltimore Police Dep't, No. CV ELH-19-384, 2020 WL 673571 (D. Md. Feb. 10, 2020) ...........................................30
Burgess v. Baltimore Police Dep’t, No. RDP-15-0834, 2017 WL 4947004 (D. Md. 2017) ............................................................31
Burris v. Hoffman, No. 15-cv-3773-DKC, 2015 WL 9268574 (D. Md. Dec. 21, 2015)..........................................9
Carter v. Morris, 164 F.3d 215 (4th Cir. 1999) ...................................................................................................30
Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc) .................................................................................11
City of Los Angeles v. Lyons, 461 U.S. 95 (1983)...................................................................................................................32
Coleman v. Schwarzenegger, 922 F. Supp. 2d 882 (E.D. & N.D. Cal. 2009).........................................................................35
County of Riverside v. McLaughlin, 500 U.S. 44 (1991).....................................................................................................................6
Darnell v. Pineiro, 849 F.3d 17 (2d 2017)..............................................................................................................11
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Diego A. A. v. Decker, No. CV 20-4337(MCA), 2020 WL 3969948 (D.N.J. July 14, 2020) ......................................13
Doe v. Barr, 20-cv-02263-RMI (N.D. Cal. Apr. 27, 2020) ..........................................................................13
Farmer v. Brennan, 511 U.S. 825 (1994).....................................................................................................11, 16, 18
Freeland v. Ballard, No. 2:11-CV-00443, 2011 WL 7394619 (S.D.W. Va. Aug. 18, 2011) ...................................23
Garcia v. Montgomery County, No. JFM-12-3592, 2013 WL 4539394 (D. Md. Aug. 23, 2013) .......................................30, 31
Gatewood v. Juknelis, No. CV ELH-16-1644, 2017 WL 1491361 (D. Md. Apr. 26, 2017) .......................................23
Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013).....................................................................................................................6
Georgia Advocacy Office v. Jackson, No. 1:19-CV-1634-WMR-RDC, Doc. 65 (S.D. Ga. July 23, 2019)........................................14
United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980)...............................................................................................................7, 8
Gerstein v. Pugh, 420 U.S. 103 (1975)...............................................................................................................6, 7
Gionfriddo v. Jason Zink, LLC, 769 F. Supp. 2d 880 (D. Md. 2011) ...........................................................................................5
Greene v. Lau, No. 19-cv-1217-RDB, 2019 WL 4643945 (D. Md. Sept. 24, 2019) .........................................8
Hardeman v. Curran, 933 F.3d 816 (7th Cir. 2019) ...................................................................................................11
Hines v. Anderson, 547 F.3d 912 (8th Cir. 2008) ...................................................................................................35
Incumaa v. Ozmint, 507 F.3d 281 (4th Cir. 2007) .....................................................................................................7
Incumaa v. Stirling, 791 F.3d 517 (4th Cir. 2015) ...................................................................................................26
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Inmates v. Owens, 561 F.2d 560 (4th Cir. 1977) .....................................................................................................7
Khoury v. Meserve, 268 F. Supp. 2d 600 (D. Md. 2003) ...........................................................................................3
Kingsley v. Hendrickson, 576 U.S. 389 (2015).................................................................................................................11
Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995) ..................................................................................14, 15
Makdessi v. Fields, 789 F.3d 126 (4th Cir. 2015) ...................................................................................................16
Mathews v. Eldridge, 424 U.S. 319 (1976)...........................................................................................................25, 28
Mitchell v. Stump, No. 17-cv-2056-PX, 2018 WL 4468855 (D. Md. Sept. 18, 2018) ............................................9
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)...........................................................................................................29, 30
Money v. Pritzker, Case No. 20-cv-209, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020) .........................................35
Moneyhan v. Keller, 563 F. App’x 256 (4th Cir. 2014) ..............................................................................................7
Morales Feliciano v. Rossello Gonzalez, 13 F. Supp. 2d 151 (D.P.R. 1998)............................................................................................34
Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379 (4th Cir. 2014) .............................................................................................31, 32
Palakovic v. Wetzel, 854 F.3d 209 (3d Cir. 2017).....................................................................................................15
Peete-Bey v. Educational Credit Mgmt. Corp., 131 F. Supp. 3d 422 (D. Md. 2015) ...........................................................................................4
Peoples v. Annucci, 180 F. Supp. 3d 294 (S.D.N.Y. 2016)................................................................................13, 15
Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019), (May 6, 2019) .................................................................. passim
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Preiser v. Rodriguez, 411 U.S. 475 (1973)...........................................................................................................32, 33
Prieto v. Clarke, 780 F.3d 245 (4th Cir. 2015) .............................................................................................26, 27
Quarterman v. Young, No. 5:18-cv-01461, 2020 WL 3442841 (S.D. W.Va. Mar. 11, 2020) .......................................7
Rendelman v. Rouse, 569 F.3d 182 (4th Cir. 2009) .....................................................................................................7
Reyes v. United States Immigration & Naturalization Serv., 141 F. App’x 96 (4th Cir. 2005) ................................................................................................7
Reynolds v. Arnone, 402 F. Supp. 3d 3 (D. Conn. 2019) ..........................................................................................14
Robles v. Prince George’s Co., 302 F.3d 262 (4th Cir. 2002) .............................................................................................21, 22
Rondeau v. Mosinee Paper Co., 422 U.S. 49 (1975)...................................................................................................................36
Ross v. Blake, 136 S. Ct. 1850 (2016) ...............................................................................................................8
Scinto v. Stansberry, 841 F.3d 219 (4th Cir. 2016) ...................................................................................................16
Scott v. Siddiqui, Case No. 17-cv-1127-JPG-SCW, 2018 WL 4403310 (S.D. Ill. Apr. 5, 2018)........................35
Semple v. City of Moundsville, 195 F.3d 708 (4th Cir. 1999) ...................................................................................................32
Seth v. McDonough, No. 20-cv-1028, 2020 WL 2571168 (D. Md. May 21, 2020).......................................... passim
Shakka v. Smith, 71 F.3d 162 (4th Cir. 1995) .....................................................................................................11
Sneed v. Joyner, No. 5:18-cv-02448-DCC, 2019 WL 2089544 (D.S.C. May 13, 2019)......................................7
Sosna v. Iowa, 419 U.S. 393 (1975)...................................................................................................................6
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Tate v. Parks, 791 F. App'x 387 (4th Cir. 2019) (per curiam) ................................................................ passim
Toure v. Hott, No. 1:20-CV-395, 2020 WL 2092639 (E.D. Va. Apr. 29, 2020) ............................................33
Ward v. Warden, No. 17-cv-3084-PX, 2018 WL 2129735 (D. Md. May 9, 2018) ...............................................8
Wilkerson v. Goodwin, 774 F.3d 845 (2014).................................................................................................................28
Wilkinson v. Austin, 545 U.S. 209 (2005)...........................................................................................................15, 28
Williams v. Griffin, 952 F.2d 820 (4th Cir. 1991) .....................................................................................................8
Williams v. Holland, 735 F. App’x 120 (4th Cir. 2018) ..............................................................................................7
Williamson v. Stirling, 912 F.3d 154 (4th Cir. 2018) ........................................................................................... passim
Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) ...................................................................................................33
Wooten v. United States Bureau of Prisons, No. 16-cv-3565-GLR, 2018 WL 1083733 (D. Md. Feb. 28, 2018)...........................................8
Federal Statutes 18 U.S.C. § 3626.................................................................................................................... passim 28 U.S.C. § 2241.................................................................................................................... passim
Other Authorities Correctional and Detention Facilities (July 22, 2020), available at
https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html ......................................................................17 World Medical Association, WMA Statement on Solitary Confinement (Oct. 2019), available at https://www.wma.net/policies-post/wma-statement-onsolitary-confinement/ ...............................................................................................................14
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On July 3, 2020, Plaintiffs filed an Amended Complaint alleging two new claims based on unconstitutional lockdown conditions at the Prince George’s County Jail. Now, after answering Plaintiffs’ Initial Complaint, Defendant moves to dismiss Plaintiffs’ Amended Complaint in its entirety. Defendant also appears to seek summary judgment on some unspecified portion of the Amended Complaint. Neither dismissal nor summary judgment are warranted.
BACKGROUND A. Factual and Procedural History On April 21, 2020, Plaintiffs brought this action challenging the Prince George’s County Jail’s inadequate and unconstitutional response to the COVID-19 pandemic. See generally Compl. (Doc. 2). At the same time, Plaintiffs filed a motion for a temporary restraining order (Doc. 3) and a motion for class certification (Doc. 4). Plaintiffs requested injunctive relief to address the Jail’s conditions under the Eighth and Fourteenth Amendments. Plaintiffs also asked this Court to enjoin the Jail’s policy of over-detaining COVID-positive prisoners who are legally entitled to release, and to release a subclass of medically vulnerable prisoners under 28 U.S.C. § 2241. See Compl. at 41-46. On May 13, 2020, Defendant answered—instead of moving to dismiss—Plaintiffs’ Complaint. See Answer, Doc. 70. On May 21, 2020, this Court ruled on Plaintiffs’ motion for a temporary restraining order granting relief on Plaintiffs’ Eighth and Fourteenth Amendment claims. See Seth v. McDonough, No. 20-cv-1028, 2020 WL 2571168 (D. Md. May 21, 2020).1 This Court reasoned that it could not “ignore Defendant’s evident disregard for the existence of the clear triple-threat: (1) undertesting, and (2) inadequate treatment and isolation of COVID-19 symptomatic detainees, and (3) no plan
1 This Court denied preliminary relief on Plaintiffs overdetention and § 2241 claims. See Seth, No. 20-cv-1028, 2020 WL 2571168, at *14-15.

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for those at high risk of COVID-19 complications.” Id. at 26. The Court later permitted the TRO to expire. Paperless Order, Doc. No. 119.
The parties then entered, and are currently engaged in, fact discovery on Plaintiffs’ claims. See Scheduling Order, Doc. 121. Both sides have issued written discovery requests, one deposition has been taken, and several more are currently being scheduled.
On July 3, 2020, Plaintiffs filed an Amended Complaint, adding two new claims. Am. Compl., Doc. 124 [hereinafter “FAC”]. The new claims challenge Defendant’s use of a generalized, indefinite lockdown at the Jail to combat COVID-19. FAC ¶¶ 266-278. Specifically, Plaintiffs allege that the lockdown—wherein most detainees are confined to their cells for 23 hours a day under restrictive conditions—creates an unreasonable risk of serious physical and psychological harm to prisoners in violation of the Eighth And Fourteenth Amendments. FAC ¶¶ 266-271 (Count IV). Plaintiffs also allege that, because the lockdown is imposed indiscriminately and without adequate procedural protections, it violates prisoners’ Fourteenth Amendment rights to due process of law. FAC ¶¶ 272-278 (Count V).
Plaintiffs added detailed allegations in support of these new claims. FAC ¶¶ 187-240, 266278. However, Plaintiffs did not amend the original claims, which Defendant had already answered, Answer, Doc. 70. Instead, Plaintiffs acknowledged in a footnote that the original allegations and claims remained unaltered, and thus represent the facts at the time Plaintiffs’ initial Complaint was filed. See FAC note 2 (stating that “[the] allegations in paragraphs 2-186 describe the state of the Prince George’s County Jail . . . at the time Plaintiffs filed their Complaint on April 21, 2020).
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Now, Defendant asks this Court to dismiss Plaintiffs’ Amended Complaint “in its entirety”—despite having already answered2 and engaged in some fact discovery. Def’s Mem. in
Supp. of Mot. to Dismiss (Doc. 128-1) at 33 [hereinafter “Memo.”] Defendant also moves for summary judgment on some unspecified portion of the Amended Complaint.3 Plaintiffs infer that
Defendant intended to move for summary judgment in the alternatively solely on administrative exhaustion under the Prison Litigation Reform Act (PLRA).4
B. Defendant’s Statement of “Undisputed” Facts Defendant includes a summary of facts it contends are “undisputed.” Memo at 5-7.
Plaintiffs briefly respond to those contentions here.
Plaintiffs do not dispute that the five Plaintiffs identified by Defendant have been released
from the Jail. (However, this fact does not moot any claim.). Nor do Plaintiffs dispute that they did
not file grievance forms. However, Plaintiffs did not do so only because no grievance procedure was available to them.5 Plaintiffs have submitted numerous declarations from prisoners at the Jail
explaining that they are unable to file grievances because Jail staff refuse to give them grievance
2 Fed. R. Civ. P. 12(b) (“A motion asserting . . . defenses [under Rule 12(b)] must be made before pleading if a responsive pleading is allowed.”). 3 While Defendant’s motion is styled as a motion to dismiss or for summary judgment, it is difficult to decipher precisely on which claims Defendant believes she is entitled to summary judgment. See Fed. R. Civ. P. (7)(b)(1)(C) (“A request for a court order must be made by motion. The motion must: . . . (C) state the relief sought.”). 4 Summary judgment is substantively referenced only in footnotes in the PLRA exhaustion section of her memo. See Memo at 11 n.7, 12 n.8. Accordingly, Plaintiffs assume that Defendant intended to seek summary judgment in the alternative only on the PLRA exhaustion claim. If Defendant clarifies this issue in her reply and claims to seek summary judgment on more than the PLRA exhaustion issue, Plaintiffs intend to seek leave to file a surreply. See Khoury v. Meserve, 268 F. Supp. 2d 600, 605 (D. Md. 2003) (“Surreplies may be permitted when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply.”). 5 Defendant relies on a newly submitted declaration that has not be tested by the adversarial process for its representations about the Jail’s grievance procedure.
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forms.6 These accounts are consistent with the grievance procedure outlined in the Jail’s Inmate Handbook, which requires inmates to overcome several hurdles before they may even request a grievance form (which can only be provided by a Zone Commander).7 In addition, the Courtappointed Independent Inspector, Dr. Carlos Franco-Paredes, found that “[t]here is no existing functioning protocol for inmates to report grievances of recent negative events.” Doc. 65-1 at 8.
The evidence that Defendant cites in characterizing the grievance process confirms the barriers inmates face in accessing it. See, e.g. Decl. of Luke S. Dixon, (Doc. 130) ¶¶ 8-9 (describing the process by which an inmate must request a grievance form). In light of Plaintiffs’ record evidence, this factual dispute should be subject to the ongoing discovery process.
STANDARD OF REVIEW “When ruling on a motion under Rule 12(b)(6), the court must ‘accept the well-pled allegations of the complaint as true,’ and ‘construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.’” Peete-Bey v. Educational Credit Mgmt. Corp., 131 F. Supp. 3d 422, 427 (D. Md. 2015) (quoting Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997)). In deciding a motion to dismiss, courts may “consider documents incorporated into the complaint by reference.” Id. (quoting United States ex rel. Oberg. v. Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014)).
6 See, e.g., Ex. 9 (Doc. 2-1 at 9) ¶ 38; Ex. 11, Decl. 11 (Doc. 2-1 at 66) ¶ 38; Ex. 14, Decl. 14 (Doc. 2-1 at 78) ¶ 10; Ex. 19, Decl. 19 ¶ 11 (Doc. 2-1 at 108); Ex. 23, Decl. 23 (Doc. 2-1 at 112) ¶ 9; Ex. 24, Decl. 24 (Doc. 2-1 at 116) ¶ 12; Ex. 25, Decl. 25 ¶ 15; Ex. H, Decl. 28 (Doc. 44-1 at 104) ¶ 25; Burch Decl. (Doc. 2-1) ¶ 14; Smith Decl. (Doc. 2-1) ¶¶ 14-15. 7 See Doc. 37-4 at 76 (requiring inmates to first “seek informal resolution” with a housing officer; then, if that is unsuccessful, the inmate must “discuss the complaint” with a Zone Commander; if resolution cannot be reached after discussion with the Zone Commander,” only then may an inmate “request an Inmate Grievance Form”) (emphasis added).
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“Rule 56 of the Federal Rules of Civil Procedure provides that a court ‘shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Gionfriddo v. Jason Zink, LLC, 769 F. Supp. 2d 880, 889 (D. Md. 2011) (quoting Fed. R. Civ. P. 56(a)). “In undertaking this inquiry, this Court must consider the facts and all reasonable inferences in the light most favorable to the nonmoving party.” Id. (citing Scott v. Harris, 550 U.S. 372, 378 (2007)).
ARGUMENT Defendant asks this Court to dismiss the Amended Complaint “in its entirely.” Memo at 33. Specifically, Defendant argues that five of the eight Plaintiffs’ claims must be dismissed at moot because those plaintiffs have been released from the Jail. Memo at 8-10. And Defendant argues that all Plaintiffs’ claims must be dismissed because they did not satisfy the exhaustion requirements under the Prison Litigation Reform Act (PLRA). Defendant also appears to seek summary judgment on the exhaustion argument. Separately, Defendant questions Plaintiffs’ decision to amend the allegations in the Complaint only as to their new claims (although it is unclear what Defendant sees as the legal implication of this argument). In addition, with respect to three of Plaintiffs’ claims—Plaintiffs’ two new claims challenging the Jail’s lockdown conditions (Counts IV and V) and Plaintiffs’ Fourteenth Amendment overdetention claim (Count II), which was pled in the original Complaint, Defendant contends that Plaintiffs have not adequately stated claims. Finally, Defendant argues that Plaintiffs’ claim for habeas relief (Count III) must be dismissed because it is not cognizable under 28 U.S.C. § 2241. As described below, Defendant’s arguments fail, and Defendant is not entitled to dismissal or summary judgment.
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I. DEFENDANT’S PROCEDURAL ARGUMENTS ARE MERITLESS A. Released Named Plaintiffs’ Class Action Claims Are Not Moot The release of some Named Plaintiffs does not moot the class claims alleged in the
Amended Complaint.8 First, as a matter of settled law, the termination of a particular plaintiff’s membership in the class does not moot class claims where the questions at issue in the litigation are “capable of repetition yet evading review.” See Sosna v. Iowa, 419 U.S. 393, 400-01 (1975).
Claims involving pretrial detention are the paradigmatic example of those to which this exception applies. As the Supreme Court explained in Gerstein v. Pugh, “Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted.” 420 U.S. at 110 n.11. Therefore, pretrial detention class claims “belong[] . . . to that narrow class of cases in which the termination of a class representative's claim does not moot the claims of the unnamed members of the class.” Id.; see Genesis Healthcare Corp., 569 U.S. at 76 (citing pretrial detention claims as an example of claims that do not become moot when class representative claims terminate).
Furthermore, class claims in this category remain viable even if the named plaintiffs’ claims become moot before class certification. See County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (“That the class was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction.”).
Here, each of the Named Plaintiffs were incarcerated at the time the Initial Complaint and the Motion for Class Certification were filed, and the Amended Complaint relates back to when
8 At least one Named Plaintiff representative of each class and subclass remained incarcerated at the Jail when the Amended Complaint was filed (and still remain incarcerated there). Therefore— even accepting Defendant’s incorrect mootness theory—there are sufficient Named Plaintiffs to carry forward claims alleged against Defendant.
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the litigation was initiated, see infra at 9-10. Furthermore, the Jail consists of pretrial detainees and convicted prisoners serving short sentences or present for brief stays (for instance, for a legal proceeding). Moreover, “[a]ll members of both classes are actively seeking . . . release[], whether by paying bail, acquittal, early release, or some other means.” FAC ¶ 260. Accordingly, the claims alleged by Named Plaintiffs are precisely the type of class claims that would escape judicial review but for the “inherently transitory” exception to mootness. See, e.g., Gerstein, 420 U.S. at 110 n.11. Accordingly, the release of some Named Plaintiffs does not moot the class claims in the Amended Complaint.
Tellingly, none of the cases relied on by Defendant in support of her mootness argument concern class claims.9 Indeed, several of the cases relied on by Defendant note the legal significance of the absence of class claims to the mootness issue in those cases.10
Separately, once a motion for class certification is filed, the named plaintiffs maintain a legal interest in the suit until the class certification issue is fully resolved, regardless of whether named plaintiffs will benefit from the results of the suit. See Geraghty, 445 U.S. at 403 (“We conclude that these elements [of standing] can exist with respect to the class certification issue notwithstanding the fact that the named plaintiff's claim on the merits has expired.”).
9 See, e.g., Rendelman v. Rouse, 569 F.3d 182, 183-185 (4th Cir. 2009) (no class claims alleged); Incumaa v. Ozmint, 507 F.3d 281, 282-283 (4th Cir. 2007) (same); Inmates v. Owens, 561 F.2d 560, 561-562 (4th Cir. 1977) (same); Moneyhan v. Keller, 563 F. App’x 256, 257-258 (4th Cir. 2014) (same); Williams v. Griffin, 952 F.2d 820, 821-822 (4th Cir. 1991) (same); Reyes v. United States Immigration & Naturalization Serv., 141 F. App’x 96, 97 (4th Cir. 2005) (same); Williams v. Holland, 735 F. App’x 120, 121 (4th Cir. 2018) (same); Quarterman v. Young, No. 5:18-cv01461, 2020 WL 3442841, at *1-*3 (S.D. W.Va. Mar. 11, 2020) (same); Sneed v. Joyner, No. 5:18-cv-02448-DCC, 2019 WL 2089544 (D.S.C. May 13, 2019) (same). 10 See Inmates, 561 F.2d at 562 (noting that “[t]he suit below was not filed, not was it ever certified, as a class action”); see also Incumaa, 507 F.3d at 288-289 (noting the different mootness rules applicable to class action claims).
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Plaintiffs’ motion for class certification was filed when Plaintiffs were still incarcerated at the Jail.11 See Mot. to Certify Class, Doc. No. 4 (filed on Apr. 21, 2020). Accordingly, Named
Plaintiffs retain a sufficient legal interest in the resolution of that motion until it is resolved. See
Geraghty, 445 U.S. at 403.
B. The PLRA’s Administrative Exhaustion Requirement Does Not Bar Plaintiffs’ Claims
Under the Prison Litigation Reform Act (PLRA), Plaintiffs are not required to exhaust an
administrative process that is not available to them. See, e.g., Ross v. Blake, 136 S. Ct. 1850, 1859
(2016). In Ross, the Supreme Court described several circumstances in which an administrative process is considered “unavailable” under the PLRA. Id. at 1859-1860. One such circumstance is “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id.
Here, the record includes abundant evidence that prisoners at the Jail are “thwart[ed]”
from submitted grievances: Jail staff do not give prisoners access to grievance forms, and the Jail’s official grievance procedure facilitates this problem. See supra at 3-4 (describing and citing this evidence). Accordingly, the prisoners’ “duty to exhaust ‘available’ remedies does not come into play.” Ross, 136 S. Ct. at 1859.12
11 This Court held Plaintiffs’ motion for class certification in abeyance pending the resolution of the motion for a temporary restraining order. Order, Doc. 24 (Apr. 23, 2020). Subsequently, this Court entered a scheduling order that leaves the motion for class certification pending until early 2021. Scheduling Order, Doc. 121 (July 6, 2020). 12 Given this evidentiary record, the cases Defendant cites do not support her argument. See, e.g., Greene v. Lau, No. 19-cv-1217-RDB, 2019 WL 4643945 (D. Md. Sept. 24, 2019) (no evidentiary record showing the unavailability of the grievance process); Ward v. Warden, No. 17-cv-3084-PX, 2018 WL 2129735 (D. Md. May 9, 2018) (same) ; Wooten v. United States Bureau of Prisons, No. 16-cv-3565-GLR, 2018 WL 1083733 (D. Md. Feb. 28, 2018) (same); Indeed, at least two of the cases that Defendant relies on involved plaintiffs who filed complaints in district court even though they were still in the middle of the grievance process. See Mitchell v. Stump, No. 17-cv-2056-PX,
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Defendant now submits a new declaration describing the Jail’s grievance procedures. See
Decl. of Luke S. Dixon, Doc. 130. As described above, this declaration supports key aspects of Plaintiffs’ account about why they cannot access grievance forms. See supra at 4. To the extent the declaration contradicts Plaintiffs’ evidence about the availability of the Jail’s grievance
procedure, this is a factual dispute capable of resolution in the ongoing discovery process.
Accordingly, Defendant is not entitled to dismissal or summary judgment on administrative
exhaustion grounds. See Fed. R. Civ. P. 56(a) (stating that summary judgment is inappropriate where there exist genuine factual disputes).13
C. Plaintiffs Properly Carried Forward Allegations From The Initial Complaint Defendant makes much of the fact that Plaintiffs amended the allegations in the Amended Complaint only as to Plaintiffs’ new claims, and, on all other matters, carried forward the allegations from the Initial Complaint. Memo. 2, 5-6.14 Defendant does not appear to contend that
this issue has any legal significance.
Regardless, Plaintiffs’ actions were proper. Plaintiffs amended their Initial Complaint solely to add counts regarding Defendant’s unconstitutional lockdown policy. However, it is
regular practice to file a complete pleading even if plaintiff is merely amending to make a few
2018 WL 4468855, at *5 (D. Md. Sept. 18, 2018); Burris v. Hoffman, No. 15-cv-3773-DKC, 2015 WL 9268574, at *2 (D. Md. Dec. 21, 2015). 13 See, e.g., Bacon v. Greene, 319 F. App’x 256, 258 (4th Cir. 2009) (per curiam) (allowing Plaintiffs’ claims to proceed there “there [wa]s a genuine issue as to whether officials withheld information that made an administrative filing futile or impossible.”). 14 In their Amended Complaint, Plaintiffs added factual allegations solely to support the addition of two new counts. See Redline Comparison of Initial and Am. Compls., Doc. No. 124-1 (showing the addition of factual allegations and counts related to the Jail’s unconstitutional lockdown conditions). In a footnote, Plaintiffs noted that all other allegations—which pertain to the original claims Defendant had already answered—had not been altered. See FAC note 2 (stating that “[the] allegations in paragraphs 2-186 describe the state of the Prince George’s County Jail . . . at the time Plaintiffs filed their Complaint on April 21, 2020).
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additions.15 Moreover, Plaintiffs’ new claims and allegations relate back to the original Complaint. See Fed. R. Civ. P. 15(c)(1)(B) (“An amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading.”); see Compl. (Doc. 2) ¶¶ 132-147, 162-166 (allegations in the initial Complaint describing the lockdown conditions and the harms they imposed). Accordingly, Plaintiffs properly carried forward their allegations from the Initial Complaint. II. THE COURT SHOULD DENY DEFENDANT’S MOTION TO DISMISS
PLAINTIFFS’ NEW CLAIMS Plaintiffs sufficiently pled claims under the Eighth and Fourteenth Amendments (Counts IV and V) related to Jail’s generalized lockdown policies. Defendant’s arguments are meritless. A. Plaintiffs State Eighth and Fourteenth Amendment Violations Based On The
Jail’s Lockdown Conditions The Jail’s universal, indefinite lockdown subjects Plaintiffs and putative class members to a substantive risk of significant physical and psychological injury. Defendant has maintained these restrictions despite awareness of the harms they cause. Moreover, contrary to public health advice, Defendant relies on the lockdown in lieu of numerous alternative means available for preventing the spread of COVID-19. This violates the Eighth and Fourteenth Amendments.
1. Plaintiffs Have Pled An Unreasonable Risk of Serious Harm The Eighth Amendment includes both “objective” and “subjective” components.16 See Farmer v. Brennan, 511 U.S. 825, 834 (1994). To meet the objective prong, a detainee must show
15 See Commentary, Fed. R. Civ. P. Rule 15. (“Rule 15 does not specify any particular form for an amended pleading. The prevailing practice is to file a complete new pleading, even if the amended pleading contains just a few changes to the prior pleading.”). 16 Pretrial detainees challenging their conditions of confinement under the Fourteenth Amendment not meet the Eighth Amendment’s deliberate indifference standard. In Kingsley v. Hendrickson, 576 U.S. 389 (2015), the Supreme Court “held that the presumptively innocent plaintiff-detainee
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that he faces “a substantial risk of . . . serious harm resulting from the prisoner’s unwilling exposure
to the challenged conditions.” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995).
Plaintiffs allege that, under the Jail’s universal lockdown policy, most prisoners in the Jail
are locked in approximately 70-square-foot cells for at least 23 hours per day, although some
(inconsistently) receive a second hour (inconsistently). FAC ¶¶ 188-195. Their out-of-cell time—
which might be granted only at 1 or 2 am—is their only opportunity to use phones to contact
family, shower, access cleaning products, or spend time in the small space outside (which is often
unavailable for days at a time). Id. ¶¶ 193, 196, 200. While in their cells, prisoners have no audio
players, televisions, or tablets, and limited or no access to reading materials. Id. ¶¶ 205-209; see
also id. ¶¶ 133-135, 142-143, 145-147, 187-212, 215-216, 234-238.
These conditions create a substantial risk of harm. See id. ¶¶ 163-164, 166, 213-215, 217-
229 (describing these risks in detail, with citations to scientific and public health authorities).
need only establish, in his excessive force claim under the due process clause of the Fourteenth Amendment, that the official acts were objectively unreasonable; the plaintiff need not also show the official intended to violate plaintiff’s rights or ‘acted for reckless disregard for his rights.’” Seth v. McDonough, No. 20-cv-1028, 2020 WL 2571168, at *11 (D. Md. May 21, 2020) (quoting Kingsley, 576 U.S. at 403). Based on Kingsley, numerous courts have held that pretrial detainees challenging their conditions of confinement under the Fourteenth Amendment need only satisfy an objective standard. See, e.g., Hardeman v. Curran, 933 F.3d 816, 821-23 (7th Cir. 2019); Darnell v. Pineiro, 849 F.3d 17, 32-36 (2d 2017); Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc). In its Opinion on Plaintiffs’ Motion for a Temporary Restraining Order, this Court stated that it “agrees . . . that no meaningful analytical difference exists between the constitutional violations raised in Kingsley and those presented here.” Seth v. McDonough, No. 20-cv-1028, 2020 WL 2571168, at *11 (D. Md. May 21, 2020); accord Opinion, Banks v. Booth, 20-cv-849, Doc. 100 at 9-12 (D.D.C. June 18, 2020) (concluding, although the D.C. Circuit has not opined on the issue, a pretrial detainee need only show objective unreasonableness). This Court “defer[red] the ultimate decision on this legal question because Plaintiffs ha[d] established a likelihood of success on the merits even under the more exacting [deliberate indifference] standard.” Id. Here, too, Plaintiffs have sufficiently pled deliberate indifference and this Court still need not decide what standard applies. However, if this Court reaches the issue, Plaintiffs submit that the Pretrial Class members need only satisfy an objective standard to state their Fourteenth Amendment claims.
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Plaintiffs identify “[a] robust body of empirical evidence” demonstrating that “solitary
confinement conditions like those at the Jail under lockdown consistently result in serious
psychological and physiological harm.” Id. ¶¶ 217, 219. “Psychological injuries may include
cognitive dysfunction, paranoia, panic, severe depression, hallucination, memory loss, insomnia, and stimuli hypersensitivity.” Id. ¶ 221 (citation omitted).17 Physiological injuries may include (for
example) “hypertension, heart palpitations, gastrointestinal disorders, severe insomnia, and dementia.”
Id. ¶ 225 (citations omitted).
Plaintiffs also cite experts who opine that the Jail’s lockdown conditions will likely cause
severe harms. For instance, Dr. Craig Haney, a psychologist specializing in the effects of restrictive
confinement conditions, states that the Jail’s lockdown conditions “are essentially identical to the
solitary confinement-type housing that has been shown to place prisoners at a significant risk of
grave harm (including damage that is permanent, even fatal).” Id. ¶ 164 (quoting Ex. 34, Haney Decl. ¶ 20, Doc. 2-1 at 209); see also id. ¶ 220.18 Separately, Dr. Robert Sapolsky, a
neuroendrocrinologist, explains that “the severe stress caused by the Jail’s lockdown conditions is
also likely to depress immune response and increase the risk of severe illness and death from COVID-19.” Id. ¶ 226 (citing Sapolsky Decl. ¶¶ 33, 39, Doc. 41-1 at 83-84, 85).19
17 The risks of these harms are intensified because, as Plaintiffs allege, “[m]ental health services are limited or non-existent, and the Jail “does not . . . assess or otherwise check on detainees to determine whether they are experience the psychological and physical consequences of solitary confinement.” FAC ¶ 202. 18 Dr. Haney’s declaration, which described the lockdown’s probably effects in detail, is incorporated by reference into the Amended Complaint. Doc 120 ¶ 241 (“All of the exhibits cited in and attached to this Complaint are incorporated by reference.”); see Ex. 34, Haney Decl. ¶ 20, Doc. 2-1 at 203-212. As alleged in the Amended Complaint, “Dr. Haney’s research on solitary confinement has been cited by numerous federal courts, including, recently, the Fourth Circuit, see Porter v. Clarke, 923 F.3d 348, 356 (4th Cir. 2019), as amended (May 6, 2019).” FAC ¶ 220 n. 105. 19 Several courts have recognized that severe stress suppresses immune response and enhances the risks posed by COVID-19. See, e.g., Diego A. A. v. Decker, No. CV 20-4337(MCA), 2020 WL
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These allegations plainly satisfy the objective test. However, Defendant contends that the lockdown conditions “do not equate to ‘solitary confinement’ or implicate the possible risk of harm related to ‘solitary confinement’” because some prisoners receive up to two hours of out-ofcell time, some prisoners have cellmates, and because the lockdown has not lasted for years. Memo. 19-20. This argument fails. Plaintiffs’ allegations directly contradict these assertions, and Defendant’s effort to dispute them is inappropriate at the pleading stage.20 Moreover, Defendant’s argument is contrary to both scientific literature and the law.
First, authorities—including the U.S. Department of Justice—define “solitary confinement” as being confined in one’s cell for 22 or more hours per day. See Peoples v. Annucci, 180 F. Supp. 3d 294, 298 (S.D.N.Y. 2016) (noting “the Department of Justice defined [solitary confinement] as ‘the state of being confined to one’s cell for approximately 22 hours per day or more, alone or with other prisoners, ... [with] limit[ed] contact with others’”); see also Reynolds v. Arnone, 402 F. Supp. 3d 3, 17, 23 (D. Conn. 2019) (finding solitary confinement conditions and
3969948, at *10 (D.N.J. July 14, 2020) (crediting a declaration from Dr. Sapolsky and concluding that “Petitioners’ mental health conditions contribute to high levels of stress, which in turn negatively enhances the immune system,” rendering them more vulnerable to COVID-19); Order (Doc. 13), Doe v. Barr, 20-cv-02263-RMI, at 4, 6 (N.D. Cal. Apr. 27, 2020) (concluding that a detainee faced an increased risk of COVID-19 because he had experienced prolonged psychological stress). 20 Plaintiffs do more than merely allege that solitary confinement—in the abstract—produces serious harms. Rather, Plaintiffs specifically allege that the Jail’s particular lockdown conditions will do so. See, e.g., FAC ¶ 164, 220 (Dr. Haney’s assessment of the risks posed by the Jail’s particular lockdown conditions); id. ¶¶ 219-221 (describing psychological harms that result from “solitary confinement conditions like those at the Jail under lockdown) (emphasis added); id. ¶ 225 (describing physiological harms that “consistently result from solitary confinement conditions like those at the Jail”) (emphasis added).
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Eighth Amendment violation where the prisoner “[wa]s confined to his cell an average of 21 to 22 hours per day.”).21
Second, the fact that some prisoners have cellmates “‘does not mitigate the effects of their
essentially around-the-clock-in-cell confinement.’” FAC ¶ 227 (quoting Ex. 34, Haney Decl. ¶ 20,
Doc. 2-1 at 209). “‘In fact, it may exacerbate these effects because of the interpersonal tensions
and stressors that such unavoidably close around-the-clock contact generates.’” Id. (quoting Ex.
34, Haney Decl. ¶ 20, Doc. 2-1 at 209). Courts have credited this conclusion. See Madrid v. Gomez,
889 F. Supp. 1146, 1229–30 (N.D. Cal. 1995) (finding that prisoners incarcerated in the SHU for
any length of time were “deprived of normal human contact regardless of whether they are single
or double celled” because “two persons housed together in this type of forced, constant intimacy
have an ‘enormously high risk of becoming paranoid, hostile, and potentially violent towards each other’”).22 More broadly, courts have described conditions as “solitary confinement” where
prisoners have far more social interaction and stimulation than do prisoners at the Jail under
lockdown. See, e.g., Reynolds, 402 F. Supp. 3d at 17, 23 (finding solitary confinement conditions
and an Eighth Amendment violation where the prisoner was allowed congregate, 15-20 minute
meals with others twice a day, and the prisoner’s cell was furnished with TV, radio, and video games).23
21 See also World Medical Association, WMA Statement on Solitary Confinement (Oct. 2019) available at https://www.wma.net/policies-post/wma-statement-on-solitary-confinement/ (“Solitary confinement is a form of confinement used in detention settings where individuals are separated from the general detained population and held alone or in a separate cell or room for upwards of 22 hours a day.”). 22 See also Order, Georgia Advocacy Office v. Jackson, No. 1:19-CV-1634-WMR-RDC, Doc. 65 (S.D. Ga. July 23, 2019) (granting preliminary injunction to remedy solitary confinement conditions in which prisoners were double celled); FAC ¶ 227 n. 106 (citing Madrid and Jackson). 23 See also Wilkinson v. Austin, 545 U.S. 209, 214 (2005) (describing Ohio’s “administrative control units” as “a highly restrictive form of solitary confinement”), citing Austin v. Wilkinson,
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Third, as the Amended Complaint explains, “[t]he consequences of solitary confinement
manifest after even relatively short time-periods.” FAC ¶ 228. Indeed, as the Fourth Circuit recognized in Porter v. Clark, “[T]he leading survey of the literature regarding [solitary] confinement found that ‘there is not a single published study of solitary or supermax-like
confinement in which nonvoluntary confinement lasted for longer than 10 days . . . that failed to result in negative psychological effects.” 923 F.3d 438, 356 (4th Cir. 2019), as amended (May 6, 2019); see FAC ¶ 228.24 Accordingly, courts have found that much shorter durations of solitary
confinement can violate the Eighth Amendment. See, e.g., Palakovic v. Wetzel, 854 F.3d 209, 217
(3d Cir. 2017) (holding plaintiff had properly alleged 8th Amendment violation where he was subjected to “multiple 30-day stints in solitary confinement”); cf. Dilworth v. Adams, (rejecting argument that prisoner’s 85 days in disciplinary segregation was “de minimis”).25
2. Plaintiffs Have Pled Deliberate Indifference Plaintiffs have also satisfied the “subjective” prong of the “deliberate indifference” inquiry,
which requires a plaintiff to show that ‘the official kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.’” Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)
(quoting Farmer, 511 U.S. at 837).
189 F. Supp. 2d 719, 724-25 and n.5 (N.D. Ohio 2002) (describing that prisoners in the administrative control units live in open-faced cells, have access to outside recreation every day, and are able to communicate with other people). 24 See also Annucci, 180 F. Supp. 3d 294, 299 (S.D.N.Y. 2016) (“After even relatively brief periods of solitary confinement, inmates have exhibited symptoms such as hypersensitivity to stimuli, perceptual distortions and hallucinations, increased anxiety, lack of impulse control, severe and chronic depression, appetite and weight loss, heart palpitations, sleep problems, and depressed brain functioning”). 25 Further, Plaintiffs allege that the lockdown’s duration is indefinite, FAC ¶¶ 136, 211, which renders a lockdown more psychologically harmful. See id. ¶ 229; Madrid, 889 F. Supp. at 1264 (“Courts have recognized that conditions in segregation could cross [the line into “psychological torture”], particularly, where the length of segregation is indefinite or long term.”).
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Defendant knew that the lockdown would be harmful, but implemented it anyway. See FAC ¶ 231 (quoting email from a Department of Corrections official shortly before the lockdown stating, “With the existing elevated state of anxiety among inmates and staff, it would be more harmful to isolate inmates”).26 Moreover, given the “extensive scholarly literature” on the harms of solitary confinement, “the risk of such harm[s] w[ere] so obvious that [they] had to have been known.” Porter, 923 F.3d at 361; Makdessi v. Fields, 789 F.3d 126, 136 (4th Cir. 2015) (stating that a plaintiff may show deliberate indifference where the risk was “obvious”). As the Fourth Circuit found in Porter, “Given [Defendant’s] status as [a] correctional professional[], it would defy logic to suggest that [Defendant] w[as] unaware of the potential harm that the lack of human interaction . . . could cause.” Porter, 923 F.3d at 361. Further still, Defendant has not only continued the lockdown, FAC ¶ 187, but has also failed to assess prisoners for mental health symptoms that may result from it, id. ¶ 204.
Defendant contends that the Jail cannot be liable for the lockdown because it “was instituted as a necessary response to the COVID-19 pandemic.” Memo. 29. In making this argument, Defendant relies on the Fourth Circuit’s conclusion in Porter that prison officials can avoid a finding of deliberate indifference for solitary confinement conditions if they “reasonably determine” that those conditions “are necessary to protect the well-being of prison employees, inmates, and the public or serve some other legitimate penological objective.” Porter, 923 F.3d at 363.
But the Jail’s generalized, indefinite lockdown was not “necessary” to prevent the spread of COVID-19. Specifically, Plaintiffs allege that Defendant has numerous alternative means to
26 In addition, “the risk of psychological and physiological harms imposed by the Jail’s lockdown have been repeatedly and explicitly enumerated by Plaintiffs and by experts during this litigation.” Id. ¶ 232. However, the lockdown persists. Id. ¶ 233.
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prevent COVID-19’s spread. See, e.g., FAC ¶¶ 138 (describing alternatives recommended by the Centers for Disease Control (CDC)); see also id. ¶¶ 137, 239, 240. Generalized lockdowns are not recommended by the CDC, which “only recommends something akin to lockdown—that housing units ‘quarantine in place’—when there is ‘contact with a case from the same housing unit’ and that all quarantines—including this sort—last for just 14 days.” FAC ¶ 138; see also id. ¶¶ 13739, 239. Public health authorities likewise advise against indefinite, preemptive lockdowns. Id. ¶¶ 140-41.27 Both the existence of alternatives and consensus against generalized and indefinite lockdowns bar the conclusion that implementing one is “necessary.”
Moreover, even if it were “necessary” to confine all prisoners to their cells for 22 to 23 hours per day, Defendant makes no attempt to suggest that the punitive restrictions that accompany the lockdown are necessary. Detainees on lockdown have limited or no access to mental health treatment, FAC ¶ 202, limited or no reading materials to use in their cells, id. ¶¶ 205-07, no access to the law library and “no audio players, television, tablets, or other materials for entertainment or stimulation,” id. ¶ 208. These restrictions are not necessary to prevent infection. Accordingly, Defendant’s argument fails.
3. Defendant’s Remaining Arguments are Meritless Defendant raises several additional meritless arguments against this claim. First, Defendant contends that “the Amended Complaint fails to identify any Plaintiffs who experienced any harmful effects from the lockdown or that any Plaintiff faced ‘a substantial risk of serious harm’ from the lockdown.” Memo. 26. Defendant suggests that, “[b]y failing to include any allegations
27 Updated Guidance from the CDC, posted on July 14, 2020, forcefully advises against the use of punitive lockdown conditions like those at the Jail to manage COVID-19. Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities (July 22, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html (hereinafter “CDC Guidance”).
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regarding Plaintiffs’ circumstances,” Plaintiffs ask the Court to “speculat[e] that they suffered a
constitutional deprivation to the Facility’s lockdown.” Id.
This is not true. In the Amended Complaint and declarations incorporated by reference, FAC ¶ 241, Plaintiffs allege that they are subject to the lockdown and describe its effects on them.28
More fundamentally, this argument misses the point. Plaintiffs have alleged that “all prisoners” at
the Jail are subject to the lockdown conditions, FAC ¶ 132, and Plaintiffs allege in detail that those
conditions impose significant risks of serious harm. Thus, all prisoners at the Jail—including Plaintiffs and putative class members—are exposed to this harm.29 See Farmer v. Brennan, 511
U.S. 825, 843 (1994) (noting that the Eighth Amendment protects prisoners against “a substantial
risk of serious damage to his future health,” regardless of whether he faces that risk “for reasons
personal to him or because all prisoners in his situation face such a risk”) (quotations omitted).
Defendant also contends that Plaintiffs’ claims fail because they do not allege “a particular
constitutional injury to Plaintiffs due to the lockdown.” Memo. 19 (quotations omitted). Again,
Defendant misunderstands Plaintiffs’ claims. Under the Eighth and Fourteenth Amendments,
exposure to a substantial risk of significant harm violates prisoners’ rights—even if the harm never
28 See, e.g., FAC ¶¶ 134 n. 80, 143 n. 82, 145; Ex. 1, Keith Seth Decl. (Doc. 2-1 at 3-7) ¶¶ 9, 1314; Ex. 2, David Smith Decl. (Doc. 2-1 at 8-11) ¶ 8; Ex. 3, Mario Burch Decl. (Doc. 2-1 at 12-15) ¶ 4; Ex. 4, John Doe No. 2 Decl. (Doc. 2-1 at 19-24) ¶¶ 9, 12, 22; Ex. 7, John Doe. No. 4 Decl. (Doc. 2-1 at 29-31) ¶¶ 6, 7, 14; Ex. 7, John Doe. No. 4 Decl. (Doc. 2-1 at 32-31) ¶ 8. 29 Although Defendant suggests otherwise, minor variability in the lockdown conditions does not alter this conclusion. To start, Defendant’s claim that lockdown conditions vary “wide[ly]” is untrue—Plaintiffs’ allegations describe only slight variations in lockdown conditions. See, e.g., FAC ¶ 196 (alleging that prisoners get an “hour (or maybe two)” of out-of-cell recreation time); id. ¶ 202 (“Mental health services are limited or nonexistent.”); id. ¶ 205 (“Access to reading materials is limited or non-existent.”). Regardless, in alleging that the lockdown conditions impose a substantial risk of serious harm, Plaintiffs never suggest that this is not the case when, for example, a prisoner can occasionally leave his cell for two hours instead of one. To the contrary, Plaintiffs make clear that the most significant variation in lockdown conditions—whether the prisoner has a cellmate—does not alter the harms the lockdown imposes. Id. ¶ 227.
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comes to pass. Helling, 509 U.S. at 33 (noting that the Eighth Amendment protects inmates from exposure to infectious diseases “even though the possible infection might not affect all of those exposed.”). Thus, exposure to a substantial risk of harm is the constitutional injury at issue. And Plaintiffs have plainly alleged that—due to Defendant’s lockdown policy—they were so exposed.
B. Plaintiffs Have Stated Violations of Substantive and Procedural Due Process Defendant’s decision to impose a generalized, indefinite lockdown—accompanied by punitive restrictions—violates Plaintiffs’ Fourteenth Amendment rights to due process. When a jail imposes restrictive conditions like those under the current lockdown, some form of process is due. And even the most permissive due process requirements mandate some degree of individualized consideration when imposing restrictive conditions like those at issue here. By imposing the lockdown on all prisoners in a blanket manner, Defendant violates their rights to procedural due process. And with respect to the Pretrial Class, Defendant’s lockdown restrictions violate substantive due process as well. See Williamson v. Stirling, 912 F.3d 154, 175 (4th Cir. 2018) (explaining that “the treatment of a pretrial detainee can be so disproportionate, gratuitous, or arbitrary that it becomes a categorically prohibited punishment that will sustain a substantive due process claim”). Plaintiffs have sufficiently pled each of these claims.
1. Pretrial Plaintiffs Have Pled Substantive Due Process Violations The Fourteenth Amendment bars the punishment of pretrial detainees without due process of law. Williamson, 912 F.3d at 173 (quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979)). To state a substantive due process claim based on impermissible punishment, a pretrial detainee must establish “that the challenged conditions were either ‘(1) imposed with an express intent to punish or (2) not reasonably related to a legitimate nonpunitive government objective, in which case an intent to punish may be inferred.’” Id. at 178 (quoting Slade v. Hampton Roads Reg. Jail, 407 F.3d 243, 251 (2005). Here, although the lockdown is not expressly punitive, Plaintiffs’ allegations are
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more than sufficient to demonstrate that the lockdown is not reasonably related to a legitimate, non-punitive government objective.
a. The Lockdown Conditions are Excessive, and Therefore Punitive Where—as here—there is no “explicit intention” to punish a pretrial detainee, a court must “ascertain the relationship between the actions taken against the detainee and the custodian’s supporting rationale.” Williamson, 912 F.3d at 173. That inquiry turns on two factors: whether the restrictions “may validly be attributed to an alternative, nonpunitive rationale, and whether they appear “‘excessive in relation to the alternative purpose assigned.’” Id. (quotations omitted). Defendant contends—without explanation—that the Jail’s lockdown conditions cannot be punitive because they are “‘reasonably related to a legitimate non-punitive governmental objective,’ i.e. preventing the spread of COVID-19.” Memo. 25 (quotations omitted). However, a court may not “uncritical[ly] accept[]” the Jail’s justification for the restriction. Williamson, 912 F.3d at 178 (finding reversible error where the court “accepted defendants’ asserted purpose” for imposing solitary confinement without the proper analysis); see Tate v. Parks, 791 F. App'x 387, 390 (4th Cir. 2019) (per curiam) (“[A] court may not simply accept the defendant’s justification for placing a detainee in administrative segregation . . . .”). Instead, courts must “meaningfully consider where the conditions of confinement were ‘reasonably related’ to the stated objective, or whether they were ‘excessive’ in relation thereto.” Williamson, 912 F.3d at 178 (quoting Bell v. Wolfish, 441 U.S. at 537-39); see Tate, 791 F. App’x at 390 (same). Thus, even a condition that is effective in achieving a valid non-punitive purpose may still be deemed punitive if it is an excessive means of doing so.30 This analysis applies not
30 As the U.S. Supreme Court explained in Bell: “[L]oading a detainee with chains and shackles and throwing him in a dungeon may ensure his presence at trial and preserve the security of the institution. But it would be difficult to conceive of a situation where conditions so harsh, employed to achieve objectives that could be accomplished in so many alternative and less harsh methods,
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only to the decision to impose the restriction itself, but “more broadly to all the conditions and restrictions thereto.” Tate, 791 F. App’x at 390; see Williamson, 912 F.3d at 180.
The Jail’s preemptive, indefinite lockdown is excessive in relation to its sole purpose: preventing the spread of COVID-19.31 The CDC and public health experts do not recommend generalized lockdowns, and Defendant has numerous alternative and far less restrictive means to achieve social distancing and prevent COVID-19’s spread. See supra at 17 (citing Plaintiffs’ allegations). Opting for harsh lockdown restrictions over less-restrictive alternatives is “excessive in relation to” the lockdown’s purpose. Williamson, 912 F.3d at 173.32 Moreover, the generalized lockdown is also counter-productive in relation to its purpose because, in several ways, it facilitates the spread of COVID-19. FAC ¶¶ 140-47.
Even if the lockdown were an appropriate response to the pandemic, Defendant makes no effort to justify the lockdown’s punitive conditions, including (for example) lack of mental health treatment, reading material or other entertainment during prisoners’ around-the-clock time in their cells, and the inability to access the law library. See supra at 17. See Robles, 302 F.3d at 269 (finding conditions punitive where they were “entirely unrelated” to a legitimate purpose).
Further, the Jail does not tailor the lockdown (or the restrictions attendant to it) to apply only as necessary to prevent COVID-19 infection. For example, the lockdown’s imposition does
would not support a conclusion that the purpose for which they were imposed was to punish.” 441 U.S. at 539 n. 20. 31 See Memo at 25 (stating this purpose); FAC ¶ 132-147 (describing the Jail’s use of the lockdown as its containment method). 32 See Bell, 441 U.S. at 539 n. 20 (reasoning that the imposition of harsh conditions “to achieve objectives that could be accomplished in so many alternative and less harsh methods” would almost certainly be deemed punitive); Robles v. Prince George’s Co., 302 F.3d 262, 269 (4th Cir. 2002) (finding that conditions of confinement amounted to punishment where they were “hardly necessary” to achieve their purpose).
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not turn on whether the particular detainee has been exposed to COVID-19, whether the detainee is still likely to be contagious, or whether the detainee’s particular mental health vulnerabilities would render the lockdown restrictions unduly harmful. FAC ¶ 238. And—short of the pandemic’s end—the Jail has no plan to adjust lockdown restrictions based on changing circumstances, including the lockdown’s effects on detainees’ mental health. FAC ¶¶ 204, 237. Indeed, it has persisted despite detainees’ mounting mental health symptoms. Id. ¶ 213 (alleging that, as a result of the lockdown, many detainees “are increasingly anxious, depressed, and suicidal.”). This failure to tailor the lockdown restrictions to detainees’ particular circumstances—including the lockdown’s mounting mental health effects—further demonstrates that the policy is excessive, and therefore punitive.33
b. Defendant’s Arguments Fail Defendant does not meaningfully address the merits of Plaintiffs’ substantive due process claim, other than claiming that purpose is to “prevent[] the spread of COVID-19.” Memo. 25.34 That statement is insufficient, given that Plaintiff’s detailed allegations identify a significant disconnect between their proposed rationale and the conditions imposed. See Williamson, 912 F.3d at 178 (stating that courts may not simply “accept[] defendant[‘s] asserted purpose”). Defendant also notes (without analysis) that “courts consistently find that conditions of confinement much more onerous than the Facility’s lockdown comfort with substantive due
33 See Williamson, (reasoning that, where a detainee’s “solitary confinement conditions remained unchanged, despite demonstrable differences in his circumstances,” including the detainee’s declining mental health, this “undermine[d] the claim” that the continuation of those conditions was “‘reasonably’ related to some supporting rationale”) (quotations omitted). 34 Defendant also makes several arguments that would apply to a substantive claim brought by post-conviction prisoners. See Memo. 25-26. However, Plaintiffs do not bring such a claim. To the extent these arguments are relevant to the Post-Conviction Class’s procedural due process claim, Plaintiffs address them in that section below.
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process.” Memo. 26 (citing three cases). But the cited cases are inapposite; all of them involve
post-conviction prisoners, whose due process claims are assessed under more stringent standards
than pretrial detainees. Indeed, in all three cases, the prisoner’s claims failed based on a requirement that does not apply to pre-trial detainees at all.35 And one of the cases addresses only procedural (and not substantive) due process.36 Accordingly, these cases have no bearing on
Plaintiffs’ substantive due process claim. 2. Pretrial Plaintiffs Have Pled Procedural Due Process Violations
To state a claim for a violation of procedural due process, a pretrial detainee must establish
both that the Jail’s lockdown conditions “implicate[] a liberty interest triggering due process
requirements,” and that Plaintiffs are being denied the process due. Williamson v. Stirling, 912
F.3d 154, 181 (4th Cir. 2018) (quotations omitted). Defendant does not appear to dispute that
Plaintiffs have pled these elements. Regardless, Plaintiffs briefly review them here.
Both the nature of a liberty interest and the level of process due vary based on whether the
restriction at issue was imposed for disciplinary or administrative purposes. Id. However, under
both frameworks, Plaintiffs have a liberty interest in avoiding restrictive lockdown conditions like those at issue here.37 Both frameworks also entitle each pretrial detainee to some form of
35 See Beverati, 120 F.3d 500, 502-04 (4th Cir. 1997) (rejecting claim because the challenged conditions were not “atypical and significant”); Freeland v. Ballard, No. 2:11-CV-00443, 2011 WL 7394619, at *3 (S.D.W. Va. Aug. 18, 2011), report and recommendation adopted, No. 2:11CV-00443, 2012 WL 523707 (S.D.W. Va. Feb. 16, 2012) (same); Gatewood v. Juknelis, No. CV ELH-16-1644, 2017 WL 1491361, at *8 (D. Md. Apr. 26, 2017) (same); see also Williamson, 912 F.3d at 184 (noting that pretrial detainees pursuing due process claims need not satisfy the “atypical and significant” requirement). 36 See Freeland, No. 2:11-CV-00443, 2011 WL 7394619, at *3. 37 Disciplinary restrictions always implicate liberty interests because pretrial detainees retain a liberty interest in freedom from punishment. Id. at 181. With respect to administrative restrictions, the Fourth Circuit has held that pretrial detainees also have a liberty interest in avoiding administrative segregation or solitary confinement conditions, even when imposed for administrative purposes. See id. at 182-86; accord Tate, 791 Fed. App’x at 390 (“Jail officials may
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individualized review regarding whether the restrictive conditions are appropriate for him. If the
restriction is disciplinary, a pretrial detainee is, at minimum, “entitled to notice, a hearing (which
may involve witnesses and documentary evidence), and an explanation of the resulting decision.”
Id. When restrictive confinement conditions are imposed for administrative reasons, less stringent
protections apply: a pretrial detainee is entitled to notice, an opportunity to present his views,38
and a periodic review of his detention. Id. at 183. These “periodic reviews must be meaningful
enough to take into account the ‘facts relating to [the] particular prisoner.’” Id. (quotations
omitted). In addition, the procedures provided with respect to an administrative restriction must
also satisfy the interest-balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). See
Williamson, 912 F.3d at 177.
Plaintiffs allege in detail that—with respect to the generalized lockdown—they are
afforded no procedural protections at all.39 Thus, the Jail fails to satisfy procedural due process
requirements regardless of which level of protections apply.40
impose nonpunitive restrictions on a pretrial detainee for disciplinary or administrative reasons, but, as these restrictions implicate a detainee’s liberty interests, he is entitled to certain procedural protections.”). 38 The detainee’s “opportunity to present his views can be provided after the detention begins, but must take place ‘within a reasonable time.’” Williamson, 912 F.3d at 183 (quoting Hewitt, 459 U.S. at 477). 39 See FAC ¶ 238 (alleging that the Jail has “no plan to, as the CDC Guidance and other public health experts recommend, limit lockdown to prisoners who require quarantine and to the timeperiod necessary for that quarantine to be effective (the CDC recommends 14 days)); (“The Jail lacks any process for determining whether a particular detainee must be placed in these conditions or when these conditions . . . may end.”); see also id. ¶¶ 201; ¶¶ 234-236; id. ¶ 237; id. ¶ 276. 40 See FAC ¶¶ 201, 234-36, 238, 276. In its procedural due process argument, Defendant does not contend that the Jail offers adequate procedural protections under either standard. See Memo. 2628. Therefore, any such argument is now waived. However, as part of its argument on substantive due process, Defendant asserts: “Director McDonough and the other members of the Facility’s leadership continue to review the necessity for the lockdown restrictions, and the lockdown will remain in place only as necessary during the pandemic.” Memo. 25. Defendant’s only support for this statement are three allegations in the Amended Complaint, none of which support Defendant’s
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Because Plaintiffs have stated procedural due process claims regardless of whether the
generalized lockdown is deemed “disciplinary” or “administrative,” this Court need not decide
that issue now. However, whether a restriction is deemed “disciplinary” or “administrative” turns
on the same analysis as whether a restriction is considered punitive in the substantive due process context.41 Thus, for the same reasons the Jail’s lockdown conditions constitute punishment,
described above, supra at 20-22, they are also disciplinary for procedural due process purposes, and thus trigger the heightened protections that entails.42
3. Post-Conviction Plaintiffs Have Pled Procedural Due Process Violations To state a procedural due process claim based on confinement conditions, post-conviction
prisoners—like pretrial detainees—must both identify a protected liberty interest and “demonstrate
deprivation of that interest without due process of law.” Prieto v. Clarke, 780 F.3d 245, (4th Cir.
2015). To establish a protected liberty interest, a post-conviction prisoner must satisfy additional
requirements that do not apply to detainees who are held pre-trial. As an initial matter, the prisoner
must “establish that an interest in avoiding onerous or restrictive confinement conditions ‘arise[s]
assertion. Id. at 25-26 (citing FAC ¶¶ 191, 136, 247). However, even if Defendant’s statement were true, it fails establish that even the minimum due process protections that may apply are being provided. 41 See Williamson, 912 F.3d at 182, 186 (“[The framework from] Bell established the relevant inquiry for identifying ‘punitive’ actions that contravene the substantive due process rights of pretrial detainees. It also guides the distinction between ‘disciplinary’ and ‘administrative’ actions taken against such detainees for purposes of procedural due process.”); accord Tate, 791 Fed. App’x at 391(basing procedural due process analysis of whether restriction was disciplinary on its earlier substantive due process analysis of whether it was punitive). 42 Williamson, 912 F.3d at 182 (basing procedural due process analysis of whether restriction was disciplinary on its earlier substantive due process analysis of whether it was punitive); Tate, 791 Fed. App’x at 391 (same); see also Williamson, 912 F.3d at 186 n. 20 see also id. n. 20 (“[W]here — as here — the allegations underlying the due process claims are “coextensive,” a determination that a restriction is ‘punitive’ may also confirm that the restriction was ‘disciplinary.’)
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from state policies or regulations.’” Incumaa v. Stirling, 791 F.3d 517, 527 (4th Cir. 2015), as amended July 7, 2015.
Here, this requirement is easily satisfied: Plaintiffs have alleged that the Jail’s Inmate Handbook sets forth a number of procedural protections that normally apply to restrictive confinement conditions (but which have not been applied during the current lockdown), including requirements for periodic review and an opportunity for appeal (protections that are not present here) FAC ¶¶ 234-36, 274; see Incumaa, 791 F.3d at 527 (find this requirement met where “Department policy . . . mandate[d] review of Appellant’s security detention every 30 days”).
Whether conditions are “atypical and significant” is a “‘fact-specific’ comparative exercise.” Id. (quoting Beverati, 120 F. 3d 500, 502 (4th Cir. 1997)), where the court must first “determine what the normative ‘baseline’ is . . . for this particular inmate” and then “determine[s] whether the prison conditions impose atypical and substantial hardship in relation to that norm.” Id. (quoting Prieto, 780 F.3d at 253).
Defendant contends (with no further argument or legal authority) that “the lockdown measures do not constitute an ‘atypical and significant’ hardship because all of the detainees remain[] subject to the lockdown measures.” Doc. 28-1 at 25.43 This misunderstands how courts identify the proper baseline. The question is not whether all detainees suffer the hardship, but whether they are experiencing a hardship as compared to the “‘ordinary incidents of prison life’ for that prisoner,” i.e., the normal experience of a post-conviction prisoner at the jail. Prieto, 780 F.3d at 253 (quoting Sandin, 515 U.S. at 484); Incumaa, 791 F.3d at 528 (“[A] general population
43 Although Defendant references the “atypical and significant” hardship standard in its argument on procedural due process, Memo. 27, Defendant does not argue in that section that this standard has not been met. However, since Defendant does take that position in its substantive due process argument (to which it is not relevant), Plaintiffs address it here.
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inmate’s “confinement expectations radiate from the conditions that inmates in the general population normally experience.”) (emphasis added).
Using that baseline, the court should then consider whether the lockdown’s conditions are “atypical and significant” using three factors: “(1) the magnitude of confinement restrictions; (2) whether the segregation is for an indefinite period; and (3) whether assignment to administrative segregation ha[s] any collateral consequences on the inmate’s sentence.” Incumaa, 791 F.3d at 530. As to the first factor, the lockdown conditions are severe. As Plaintiffs allege in detail, the lockdown has drastically altered prisoners’ experience at the Jail. FAC ¶¶ 133-135, 143, 147, 187210.44 Second, Plaintiffs have alleged that the lockdown’s duration is indefinite. See id. ¶¶ 187, 211, 237 & n. 107. And although the lockdown includes no formal collateral consequences on an inmate’s sentence, Plaintiffs allege that it may have the effect of prolonging it because (for example) “detainees’ reduced access to their attorneys makes it more challeng[ing] to press their cases in ways that could lead to release.” FAC ¶ 216. Regardless, courts have found liberty interests where the third factor is not implicated. See Wilkerson v. Goodwin, 774 F.3d 845 (2014) (finding a liberty interest where restrictive conditions had no effect on parole eligibility); Incumaa, 791 F.3d at 532 (same). Thus, Plaintiffs’ allegations support a plausible inference that the postconviction Named Plaintiff and putative class members have a liberty interest in avoiding the lockdown conditions.
To determine whether procedural protections are sufficient to protect a prisoner’s liberty interest, courts must consult the three factor test from Matthews v. Eldridge, 424 U.S. 319, 338
44 Moreover, whereas the Jail’s usual policy, as stated in the Inmate Handbook, allows inmates to appeal their placement of lockdown and requires periodic review of restrictive custody (every seven days for the first two months and every thirty days thereafter), id. ¶ 235, prisoners have remained on lockdown without any such review since April, id. ¶ 187, 234, 274.
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(1976). See Wilkinson, 545 U.S. at 224. Plaintiffs have established that the procedural protections offered by the Jail are not sufficient to protect post-conviction detainees’ liberty interests under Matthews because Plaintiffs have alleged that the Jail offers no procedural protections at all.
4. Defendant’s Procedural Arguments Regarding Plaintiffs’ Substantive and Procedural Due Process Claims Fail
Defendant raises several meritless procedural arguments in response to Plaintiffs’ substantive and procedural due process claims. First, Defendant contends that Plaintiffs’ claims must fail because the Amended Complaint’s lockdown allegations “do not include any allegations regarding the Plaintiffs.” Memo. 24. Thus, Defendant argues, “Plaintiffs erroneously invite the Court to speculate that Plaintiffs suffered a violation of their [rights].” Id. at 35; see also id. at 37 (similar).
This argument is erroneous. Plaintiffs alleged that the Jail’s lockdown is “universal,” and applies to “all prisoners.” FAC ¶ 132. This necessarily includes Plaintiffs.45 Thus, Plaintiffs’ detailed allegations about the lockdown describe a policy to which all prisoners are subject. Further, in the Amended Complaint and the declarations incorporated by reference, the Plaintiffs do allege that they are subject to the lockdown. See supra at 18.
Defendant also summarily argues (without explanation) that Plaintiffs have not sufficiently alleged that the lockdown policy is attributable to Defendant. See Memo. 25 (suggesting that Plaintiffs have not shown that “Director McDonough is liable [for violations of Plaintiffs’ substantive due process rights]”); id. at 26 (stating that Plaintiffs “do not allege any . . . causal link to Director McDonough” for procedural due process violations). This argument is also meritless. Defendant McDonough is not sued as an individual—she is sued in her official capacity as Director of the Prince George’s County Department of Corrections. FAC ¶ 22. “[O]fficial capacity suits”
45 As described above, the fact that some Plaintiffs have been released since the initial Complaint was filed does not alter this analysis.
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are “another way of pleading an action against an entity of which an officer is an agent.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978); see also FAC ¶ 1 n. 3 (“Since Defendant McDonough is being sued in her official capacity, ‘Defendant McDonough’ and ‘the Jail’ are used interchangeably . . . .”). And under settled doctrine, Defendant McDonough, in her official capacity, is liable for the implementation of any “policy statement[s], ordinance[s], regulation[s], or decision[s] adopted and promulgated by [the governmental entity’s] officers,” as well as for the entity’s informal but pervasive “customs.” Id. Plaintiffs allege both that the lockdown is a “policy” and that it applies to all prisons at the Jail. See, e.g., FAC ¶¶ 132-33. As such, Defendant McDonough, in her official capacity, is responsible for it. III. THIS COURT SHOULD DENY DEFENDANT’S MOTION TO DISMISS
PLAINTIFFS’ ORIGINAL CLAIMS Plaintiffs’ have sufficiently stated a claim for overdetention under the Fourteenth Amendment (Count II) and a claim for habeas relief (Count III). Both claims were pled in Plaintiffs’ original Complaint, which Defendant answered, rather than moving to dismiss. See Answer, Doc. 70. Neither claim should be dismissed now. A. Plaintiffs Stated Fourteenth Amendment Overdetention Claims Plaintiffs allege that Defendant maintains an unlawful policy of detaining prisoners who are legally entitled to release, solely because those prisoners are COVID-positive. FAC ¶¶ 183-86, 258-259. Defendant does not challenge the merits of this claim. Therefore, Plaintiffs do not address them here. Instead, Defendant argues that Plaintiffs have failed to allege “that Director McDonough instituted any policy of overdetention,” and thus have not alleged liability under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). Memo 23.46
46 Monell liability can stem from formal rules or understandings, affirmative decisions of policy making officials, and informal, but settled customs and practices. Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999).
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Plaintiffs sufficiently pld that the Jail had an official overdetention policy. “The Fourth Circuit has made clear that a Monell plaintiff need not ‘plead the multiple incidents of constitutional violations that may be necessary at later stages to establish the existence of an official policy or custom and causation.’” Garcia v. Montgomery County, No. JFM-12-3592, 2013 WL 4539394, at *5 (D. Md. Aug. 23, 2013) (quoting Jordan by Jordan v. Jackson, 15 F.3d 333, 339-40 (4th Cir. 1994)). “Although boilerplate allegations will not suffice, at the motion to dismiss stage, courts should not expect the plaintiff to possess a rich set of facts concerning the allegedly unconstitutional policy and the responsible policymakers.” Estate of Bryant v. Baltimore Police Dep't, No. CV ELH-19-384, 2020 WL 673571, at *36 (D. Md. Feb. 10, 2020). Thus, allegations that a policy exists—accompanied by even one specific example—may suffice. See, e.g., Garcia, No. JFM-12-3592, 2013 WL 4539394, at *5 (D. Md. Aug. 23, 2013) (finding that plaintiff adequately pled Monell liability where he provided only one example of misconduct and stated that it occurred pursuant to official policy).47
Plaintiffs’ allegations satisfy these requirements. Plaintiffs specifically allege that Defendant adopted overdetention as a policy,48 that “multiple jail officials” knew about and implemented the policy,49 and Plaintiffs provide two detailed and specific examples of the policy’s
47 See also Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 403 (4th Cir. 2014) (“Although prevailing on the merits of a Monell claim is difficult, simply alleging such a claim is by definition easier. . . . The recitation of facts need not be particularly detained and the chances of success need not be particularly high.”). 48 Plaintiffs describe the overdetention of COVID-positive prisoners as a policy adopted by the Jail to prevent the spread of the virus into the community. See FAC ¶¶ 183, 258; see also Ex. 29, Glenn Decl. (Doc. 2-1 at 142) ¶ 24 (“It has also become clear that the jail has adopted a policy of illegally detaining people for no other reason than that they have tested positive for the Coronavirus.”). 49 A public defender’s declaration, incorporated into the Amended Complaint by reference, FAC ¶ 241, states that both the public defender and the head of the public defender’s office discussed
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implementation.50 At the pleading stage, when all reasonable inferences must be drawn in
Plaintiffs’ favor, these allegations are more than sufficient to “raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, courts in this district have found Monell liability adequately pled based on similar allegations.51
Defendant also argues that this claim is deficient—and that Plaintiffs lack standing to raise
it—because “Plaintiffs do not allege that they suffered any constitutional deprivation from over-
detention.” Memo. 13-14. Defendant misunderstands the nature of claims for injunctive relief. A
plaintiff has standing not only when he has suffered an injury, but also when he “he is in immediate
danger of sustaining some direct injury as the result of the challenged official conduct.” City of
Los Angeles v. Lyons, 461 U.S. 95 (1983). Plaintiffs alleged that they face immediate danger of
unlawful detention because all of them are both “actively seeking to be legally entitled to release”
and “at immediate risk of contracting COVID-19.” FAC ¶ 260. Thus, Defendant’s argument fails.
the overdetention of a COVID-positive prisoner with “multiple officials at the jail,” but that “the jail refused to release [him].” Ex. 29, Glenn Decl. (Doc. 2-1 at 142) ¶ 24. 50 These examples are described in three declarations incorporated by reference, FAC ¶ 241, one from the public defender representing the overdetained individuals, and two from those individuals themselves. See Ex. 9, Decl. 9 (Doc. 2-1 at 41) ¶ 23; Ex. 11, Decl. 11 (Doc. 2-1 at 58-59) ¶¶ 5, 22; Ex. 29, Glenn Decl. (Doc. 2-1 at 142) ¶¶ 24-25. 51 See, e.g., Burgess v. Baltimore Police Dep’t, No. RDP-15-0834, 2017 WL 4947004, at *12 (D. Md. 2017) (plaintiff’s allegations concerning “three specific examples of Brady violations by BPD in 1981, 1988, and 1995” were sufficient to plead a plausible Brady claim); Garcia, No. JFM-123592, 2013 WL 4539394, at *5 (Monell liability adequately pled based on one example); see also Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 403 (4th Cir. 2014) (finding that Monell claim was adequately pled where the plaintiff alleged the existence of a policy and stated that examples existed in an unspecified number of “[r]eported and unreported cases” and “a number of motions”); cf. Semple v. City of Moundsville, 195 F.3d 708, 712 (4th Cir. 1999) (explaining that “[a] governmental unit may create an official policy by making a single decision regarding a course of action in response to particular circumstances”).
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B. Plaintiffs’ Habeas Claim is Cognizable Under § 2241 Plaintiffs in the Medically Vulnerable Subclass—who are all pretrial detainees—seek release from the Jail under 28 U.S.C. § 2241. Plaintiffs allege that they are entitled to this relief because the Jail’s conditions are unacceptably dangerous and cannot be remedied in time to protect their lives. See FAC ¶¶ 262-65. Plaintiffs allege that in these circumstances, the only way for the subclass members to avoid unconstitutional harm is to “seek[] immediate release or a speedier release from confinement—the heart of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475 (1973); see FAC ¶ 265 (“[T]here are presently no options available to mitigate th[e] risk of COVID-19 at the Jail] quickly enough to protect [the Medically Vulnerable Subclass members] other than immediate release from custody.”). This Court previously held that Plaintiffs’ claims for relief under § 2241 are subject to the restrictions of the Prison Litigation Reform Act (PLRA). See Seth, No. 20-cv-1028, 2020 WL 2571168, at *11. Relying on this holding, Defendant now argues that Plaintiffs’ claim is not cognizable under § 2241 because the Medically Vulnerable Subclass members’ request for release turns on conditions of confinement. The U.S. Supreme Court has left open the question whether a petitioner may bring a habeas condition based on his conditions of confinement. See Preiser, 411 U.S. at 499 (stating, while explaining the traditional differences between civil rights actions and habeas cases, that “[t]his is not to say that habeas corpus may not also be available to challenge such prison conditions”). And in recent opinions, courts are divided on this issue.52 The Fourth Circuit has, in several non-binding
52 Compare, e.g. Wilson v. Williams, 961 F.3d 829, 837 (6th Cir. 2020) (concluding, in case about COVID-19, “that petitioners’ claims are properly brought under § 2241 because they challenge the fact or extent of their confinement by seeking release from custody”), with Toure v. Hott, No. 1:20-CV-395, 2020 WL 2092639, at *5 (E.D. Va. Apr. 29, 2020) (“[Plaintiffs’] challenge to the constitutional sufficiency of their confinement, even when paired with a request for immediate release, is a challenge to the conditions of their confinement.”).
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unpublished opinions, declined to allow certain habeas claims based on confinement conditions to proceed. See Memo. 15 (citing cases). However, in Coreas v. Bounds, a court in this district considering a similar claim for release based on a detention facility’s COVID-19 conditions found that these cases were “clearly distinguishable,” and concluded that a claim “seeking release because of unconstitutional conditions or treatment is cognizable under § 2241. No. TDC-20-0780, 2020 WL 1663133, at *6-7 (D. Md. Apr. 3, 2020). This precise issue is now fully briefed and pending on appeal in the Fourth Circuit. See Toure v. Holt, No. 20-6695 (filed May 13, 2020).
As an analytical matter, Plaintiffs submit that their habeas claim is cognizable under § 2241 because the remedy sought is release—not any improvement in conditions. Accord Wilson v. Williams, 961 F.3d 829, 837-38 (6th Cir. 2020) (prisoners’ habeas claim based on the Jail’s dangerous conditions with respect to COVID-19 was cognizable under § 2241 because the remedy sought was release, not improved conditions). By framing their claim in this way, Plaintiffs face formidable hurdles. For instance, they must ultimately prove, as a factual matter, that there is no set of conditions that could sufficiently mitigate the risk to the Medically Vulnerable Subclass members in time to prevent irreparable injury and that, therefore, the only option is release from confinement.53 Moreover, as this Court has concluded, Plaintiffs are also constrained by the PLRA. Seth, No. 20-cv-1028, 2020 WL 2571168, at *11. However, neither of these hurdles signifies that Plaintiffs’ claim is not cognizable under § 2241. Therefore, dismissal is inappropriate. IV. PLAINTIFFS PLEAD CLAIMS FOR INJUNCTIVE RELIEF
If the allegations in Plaintiffs’ Amended Complaint are demonstrated at the appropriate phase of this litigation, Plaintiffs would be entitled to the prospective injunctive relief that they seek. The PLRA expressly provides for “[p]rospective relief in any civil action with respect to
53 Defendant does not argue that Plaintiffs have not sufficiently pled facts to plausibly support this inference at the pleading stage.
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prison conditions[.]” 18 U.S.C. § 3626(a)(1). The PLRA also expressly provides for a process
for prisoner release “[i]n any civil action with respect to prison conditions” when certain
conditions are satisfied. Id. § 3626(a)(3). Accordingly, the statute itself belies any claim by
Defendant that prospective injunctive relief and release are unavailable under the PLRA.
Defendant requests that this Court determine now—while the parties are in the middle of
fact discovery—whether the relief Plaintiffs seek meets the PLRA’s need-narrowness-
intrusiveness requirements or require the institution of a three-judge panel for the purpose of
determining if release is necessary. Memo. 30-33. Defendant’s request is premature. What
prospective relief is proper, including whether it is necessary to institute a three-judge panel to
determine the propriety of release, is not a determination amenable to resolution on a motion to
dismiss. See Morales Feliciano v. Rossello Gonzalez, 13 F. Supp. 2d 151, 212-213 (D.P.R.
1998) (entering injunctive relief “to protect the members of the plaintiff class from cruel and
unusual punishment through constitutionally unacceptable health care services” after a hearing).
None of the cases Defendant relies on are to the contrary. At most, the cases cited by
Defendant, many of which concern preliminary stages of litigation, hold that the facts plaintiffs presented in those cases did not warrant the requested injunctive relief.54 Whether to impose
54 See, e.g., Scott v. Siddiqui, Case No. 17-cv-1127-JPG-SCW, 2018 WL 4403310, at *3-*4 (S.D. Ill. Apr. 5, 2018) (finding no grounds for the preliminary injunctive relief requested based on the record before the court); Hines v. Anderson, 547 F.3d 912, 921-922 (8th Cir. 2008) (affirming the district court’s finding that based on facts before the court, the decree “was not narrowly drawn to address a particular medical problem that existed at the time”); Alvarez v. Larose, Case No. 20cv-00782-DMS, 2020 WL 2315807, *3-*4 (S.D. Cal. May 9, 2020) (holding that Plaintiffs had not on the record before the Court demonstrated they were entitled to a preliminary injunction granting release); Money v. Pritzker, Case No. 20-cv-209, 2020 WL 1820660, at *14 (N.D. Ill. Apr. 10, 2020) (holding that Plaintiffs were not entitled to release at the temporary restraining order stage without an initial order for less intrusive relief and the implementation of a three-judge court). The Court’s holding in Coleman v. Newsom is inapposite. Case No. 2:90-cv-0520 KJM DB P, 2020 WL 1675775, at *6 (E.D. Cal. Apr. 4, 2020) (holding Plaintiffs were not entitled to modify the release order previously entered by the Court in 2009 in response to systemic, non-COVID-
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injunctive relief and what relief to impose is a fact-intensive inquiry. Defendant has not shown that Plaintiffs do not have a legal right to the requested injunctive relief should the sufficient facts be established at a later stage of this litigation. Accordingly, her motion to dismiss Plaintiff’s requested injunctive relief should be denied.55
CONCLUSION For the foregoing reasons, Plaintiffs’ respectfully request that this Honorable Court deny Defendant’s motion to dismiss or, alternatively, motion for summary judgment.
Dated: August 7, 2020
19-related overcrowding issues). Indeed, Coleman undermines Defendant’s assertions as Coleman demonstrates that in the appropriate circumstances a prisoner release order by a three-judge court is appropriate and necessary. Id. at *2. 55 Defendant’s claim that Plaintiffs’ requests for injunctive relief are both too specific for the PLRA and too broad for FRCP 65 is meritless. Memo. 32 & n.13. Injunctive relief, should this Court find it necessary to impose it, must be tailored the facts as demonstrated at an appropriate stage of this litigation. See, e.g., Rondeau v. Mosinee Paper Co., 422 U.S. 49, 62 (1975) (noting that injunctions “permit the court to mould each decree to the necessities of the particular case”); SEC v. Hillsborough Inv. Corp., 176 F. Supp. 789, 790 (D.N.H. 1959) (similar). Of course, whatever injunctive relief this Court enters must be sufficiently specific so as to not run afoul of Rule 65’s prescriptions. Fed. R. Civ. P. 65(d)(1)(B)-(C). However, that is not a basis for dismissal of Plaintiffs’ requested injunctive relief.
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Respectfully submitted,
By: /s/ Katherine Chamblee-Ryan Edward Williams (Bar No. 20944) Cadene Russell Brooks (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 ed.williams@wilmerhale.com Phone: (202) 663-6487
Elizabeth Rossi (Bar No. 19616) Katherine Chamblee-Ryan (pro hac vice) Olevia Boykin (pro hac vice) Ryan Downer (pro hac vice) CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Suite 800 Washington, DC 20009 katie@civilrightscorps.org Phone: (610) 931-7715

 Case 8:20-cv-01028-PX Document 144 Filed 08/21/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

KEITH SETH, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

MARY LOU MCDONOUGH,

)

In her official capacity as Director of )

the Prince George’s County Department )

of Corrections,

)

)

Defendant.

)

Case No. 8:20-cv-01028-PX

DIRECTOR MARY LOU MCDONOUGH’S REPLY MEMORANDUM IN FURTHER SUPPORT OF HER MOTION TO DISMISS THE AMENDED COMPLAINT OR, ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT

Pursuant to Rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil

Procedure, Defendant MARY LOU MCDONOUGH (“Director McDonough”), in

her official capacity as Director of the Prince George’s County Department of

Corrections (“PGCDOC”), hereby submits this Reply Memorandum in further

Support of her Motion to Dismiss the Amended Complaint or, Alternatively, Motion

for Summary Judgment.

INTRODUCTION

The Amended Complaint falls far of stating a claim against Director

McDonough for violating Plaintiffs’ rights in light of the emergency created by the

1

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COVID-19 pandemic. Plaintiffs must do more than allege that it is possible they may suffer violations of their rights. Generalized allegations of conditions at the Facility1—allegations disproven by the record before the Court—fall far short of entitling Plaintiffs to any relief from Director McDonough. Furthermore, Plaintiffs fail to create a genuine issue of fact regarding their compliance with the PLRA’s exhaustion requirement. Director McDonough’s Motion to Dismiss the Amended Complaint or, Alternatively, Motion for Summary Judgment (Doc. Nos. 128, 128-1, the “Motion”) is due to be granted in full.
The Motion is due to be granted and Plaintiffs’ response brief in opposition to the Motion (Doc. No. 135, the “Response”) should be over-ruled for the following seven (7) reasons:
(1) The current status of the Released Plaintiffs moots their claims;
(2) PGCDOC’s grievance process was not “unavailable” to Plaintiffs;
(3) The Amended Complaint fails to state an overdetention claim;
(4) Plaintiffs’ habeas petition fails to state a claim in light of the “entrenched” view of the Fourth Circuit;
(5) The Amended Complaint fails to state a § 1983 claim based on the lockdown measures;
1 Unless otherwise indicated, this Reply uses the same definitions for terms as provided in Director McDonough’s Motion. (Doc. No. 128-1).
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(6) The Amended Complaint fails to state a due process claim; and

(7) The PLRA prohibits Plaintiffs’ request for injunctive relief.

Therefore, the Court should grant Director McDonough’s Motion and dismiss

Plaintiffs’ Amended Complaint and the claims asserted in the Amended Complaint.

ARGUMENT

I.

THE CURRENT STATUS OF THE RELEASED PLAINTIFFS MOOTS THEIR

CLAIMS.

The Released Plaintiffs’ claims are moot because they are no longer in

PGCDOC’s custody. Plaintiffs raise two (2) unconvincing arguments in opposition

to Director McDonough’s Motion. First, relying on dicta in Gerstein v. Pugh, 420

U.S. 103 (1975), Plaintiffs contend that the Released Plaintiffs’ claims on behalf of

a putative class of pretrial detainees constitute “inherently transitory” claims coming

within the “capable of repetition yet evading review” exception to the mootness

doctrine.2 (Doc. No. 135 at 13). In dicta, the Gerstein court noted that “it is most

unlikely that any given [pretrial detainee] could have his constitutional claim

decided on appeal before he is either released or convicted,” the termination of an

individual class representative’s claim as moot “does not moot the claims of the

2 This argument does not apply to Plaintiff John Doe No. 2, who was not a pretrial detainee when Plaintiffs initiated this action. (Doc. No. 120 at ¶ 18). His claims are due to be dismissed as moot in light of his release from PGCDOC’s custody.
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unnamed members of the class.” 420 U.S. at 110, n. 11. Second, Plaintiffs assert that the Released Plaintiffs retain a “legal interest” in obtaining class certification based on their pending motion for class certification. (Doc. No. 135 at 13). Plaintiffs’ arguments are unconvincing.
The current circumstances of the Released Plaintiffs are easily distinguishable from the facts in the cases cited by Plaintiffs. In those cases, all of the named plaintiffs’ claims had become moot, and the class claims would terminate if the individual plaintiffs’ claims were dismissed as moot.3 Here, Director McDonough does not contend that all of the Plaintiffs’ claims are moot or that the claims of the putative classes are moot. In fact, Plaintiffs concede that “[a]t least one Named Plaintiff representative of each class and subclass remain incarcerated at the Jail,” and thus “there are sufficient Named Plaintiffs to carry forward claims alleged against [Director McDonough]” even if the Released Plaintiffs’ claims are moot.4 (Doc. No. 135 at 13, n. 8). Plaintiffs’ claims will not evade review because some Plaintiffs will remain to pursue those claims and push for class certification.5 “The ‘inherently transitory’ rationale … address[es] circumstances in which the
3 See Gerstein, 420 U.S. at 110, n. 11; U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 401-07 (1980); Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991). 4 The Court need not decide whether the “capable of repetition, yet evading review” exception to mootness would apply if all of the Plaintiffs’ claims became moot because that circumstance is not before the Court. 5 For the variety of reasons stated in Director McDonough’s Motion, all of Plaintiffs’ claims are due to be dismissed on grounds other than mootness.
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challenged conduct was effectively unreviewable, because no plaintiff possessed a personal stake in the suit long enough for litigation to run its course.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 76 (2013) (emphasis added). Thus, the legal reasoning underpinning the cases cited by Plaintiffs simply do not apply here.
Practical considerations also counsel in favor of dismissing the Released Plaintiffs’ claims. The Released Plaintiffs do not possess information regarding the current circumstances at the Facility. Thus, any testimony from the Released Plaintiffs will provide little value for the adjudication of the claims and defenses at issue in this action, while discovery related to the Released Plaintiffs will consume significant time and resources. Dismissing the Released Plaintiffs’ claims will streamline this action to focus on the most relevant information to provide the Court. II. PGCDOC’S GRIEVANCE PROCESS WAS NOT “UNAVAILABLE” TO
PLAINTIFFS. 42 U.S.C. §1997e(a) of the Prison Litigation Reform Act (“PLRA”) mandates that detainees such as Plaintiffs exhaust all administrative remedies prior to bringing a claim with respect to the conditions in a jail. 42 U.S.C. §1997e(a); Ross v. Blake, 136 S. Ct. 1850, 1854-55 (2016). A detainee “must ‘complete the administrative review process in accordance with the applicable procedural rules,’” meaning those rules set “by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2007)). “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural
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rules….” Woodford, 548 U.S. at 91. “[A] court may not excuse a failure to exhaust, even to take [special] circumstances into account.” Ross, 136 S. Ct. at 1856. The futility of the grievance process to address a detainee’s complaint does not excuse the requirement to exhaust the grievance process prior to bringing suit. Booth v. Churner, 532 U.S. 731, 739-41, n. 6 (2001).
Plaintiffs fail to create a genuine issue of material fact regarding the dismissal of their claims pursuant to the PLRA’s exhaustion requirement. Plaintiffs admit that PGCDOC maintains a grievance process to address detainees’ concerns related to conditions at the Facility and that they did not exhaust that grievance process prior to initiating this action. (Doc. No. 135 at 10-11). Plaintiffs’ argument that the grievance process was “unavailable” falls far short of establishing creating a factual dispute on Plaintiffs’ failure to comply with the PLRA’s exhaustion requirement.
The PLRA only requires that “the remedies be ‘available’ to the prisoner.” Ross, 136 S. Ct. at 1856 (emphasis added). Jail officials may render a grievance process “unavailable” if they “thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860. But determining whether the grievance process was “available” to a plaintiff requires an individualized assessment. Salem v. Mich. Dep’t of Corrs., Case No. 13-cv-14567, 2019 WL 4409709, at *13-15 (E.D. Mich. Sept. 16, 2019) (denying a motion for class certification and setting a hearing to determine whether the grievance process
6

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was “available” to the individual plaintiffs). A detainee cannot demonstrate that a grievance process is “unavailable” if he does not attempt to comply with that process. See Napier v. Laurel Cnty., Ky., 636 F.3d 218, 224 (6th Cir. 2011) (“the only way to determine if the process was available, or futile, was to try” to comply with the procedures). Furthermore, a court’s inquiry only considers whether the grievance process was available to the plaintiff prior to filing the action, not whether the process subsequently became unavailable. See generally Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004) (focusing analysis on whether the plaintiff had access to the grievance process prior to filing suit). PGCDOC unquestionably provided Plaintiffs with an “available” grievance process in light of this law.
In their Response, Plaintiffs do not point to relevant evidence that PGCDOC’s grievance process was “unavailable” to Plaintiffs prior to initiating this action. In contending that PGCDOC’s grievance process was “unavailable,” the Response cites to statements purportedly from non-plaintiff detainee declarants; a conclusory statement by Dr. Carlos Franco-Paredes; and generalized statements from two (2) Plaintiffs, Mario Burch and David Smith.6 (Doc. No. 135 at 11, n. 6). The nonplaintiff detainees’ statements do not create a question of fact regarding the
6 The Response also generally asserts, without elaborating an argument, that PGCDOC’s grievance process requires inmates to overcome several hurdles before they may even request a grievance form….” (Doc. No. 135 at 4). The significance of this assertion remains unclear. Regardless, a plaintiff must exhaust a grievance process even if it involves “rigid restrictions,” Powers v. Clay, No. V-11-051, 2012 WL 6858233, at *6 (S.D. Tex. Nov. 21, 2012), or is not “simple, fast, or effective.” Graham v. Cnty. of Gloucester, Va., 668 F. Supp. 2d 734, 739-40 (E.D. Va. 2009).
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availability of the grievance process for Plaintiffs because those statements provide no information whatsoever regarding any attempts by Plaintiffs to utilize the grievance process. Furthermore, the non-plaintiff detainees’ statements do not support a reasonable inference that the grievance process was unavailable to Plaintiffs given the lack of details in the statements. For example, the non-plaintiff detainees’ statements fail to indicate that those detainees followed PGCDOC’s grievance procedures, where they were housed at the Facility when they purportedly concluded the grievance process was unavailable, and when they purportedly sought to utilize the grievance procedures. The non-plaintiff detainees’ statements do not create a question of fact regarding the availability of the grievance process to Plaintiffs and are due to be rejected out of hand.
Dr. Franco-Paredes’s highly conclusory statement that “[t]here is no existing functioning protocol for inmates to report grievances of recent negative events” also fails to create a genuine factual issue. (Doc. No. 65-1 at 8). Dr. Franco-Paredes did not visit the Facility until May 6, 2020, i.e. more than two (2) weeks after Plaintiffs initiated this action. (Id. at 5). Thus, the conclusory statement in his report simply does not create an issue of fact for whether Plaintiffs failed to utilize PGCDOC’s grievance process due to its unavailability before they initiated this action.
Finally, the declarations of Plaintiffs Mario Burch and David Smith fall far short of creating a factual dispute for whether PGCDOC’s grievance process was
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unavailable to Plaintiffs prior to this action. With respect to Burch, he does not state
that he attempted to engage in the informal grievance process or requested a
grievance form to address the alleged conditions about which he complains in this
action. (Burch Declaration, Doc. No. 2-1, at ¶ 14). Smith only states that he
received, but decided not to submit, a grievance form relating to his complaint that
“the CO put the [food] trays on the floor.” (Smith Declaration, Doc. No. 2-1, at ¶
14). Smith does not state that he ever sought to, and was thwarted from, utilizing the grievance process with respect to his claims in this action.7 See Jones, 549 U.S.
at 219-20 (“All agree that no unexhausted claim may be considered.”). Director
McDonough is entitled to summary judgment on Plaintiffs’ claims in this action because they failed to exhaust the grievance process required by the PLRA.8
III. THE AMENDED COMPLAINT FAILS TO STATE AN OVER-DETENTION CLAIM.
The Amended Complaint fails to state an over-detention claim. First,
Plaintiffs fail to adequately allege Monell liability for Director McDonough based
7 Smith’s vague statement that “[i]f I try to ask for a grievance I know they are going to turn it against me,” (Smith Declaration, Doc. No. 2-1, at ¶ 15), utterly fails to create a question of fact for whether the grievance process was unavailable to him. See Boyd v. Corr. Corp. of Amer., 380 F.3d 989, 998 (6th Cir. 2004) (“nonspecific allegations of fear” do not excuse a failure to exhaust administrative grievance procedures). 8 Even if the Court concludes that Burch’s and Smith’s declarations created a question of fact regarding whether PGCDOC’s grievance form was available for them (it should not), Director McDonough would still be entitled to summary judgment with respect to the other Plaintiffs’ claims. See Sain v. Collier, Civil Action No. H-18-4412, 2019 WL 4144321, at *12-14 (S.D. Tex. Aug. 30, 2019) (granting summary judgment with respect to some of the named plaintiffs in a putative class action who failed to exhaust the administrative grievance process).
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on the allegation that “the Jail refuses to release COVID-positive prisoners who have paid bail (or are otherwise legally entitled to release) until it deems them noncontagious.” (Doc. No. 120 at ¶ 183). As an initial matter, Plaintiffs’ argument that Director McDonough adopted an actual policy of over-detention is due to be rejected out of hand. Plaintiffs do not allege that Director McDonough or any other “decisionmaker possess[ing] final authority to establish municipal policy” for Prince George’s County decided to detain COVID-positive prisoners at the Facility despite their purported entitlement to release or established a policy to that effect. Lane v. Anderson, 660 F. App’x 185, 197 (4th Cir. 2016) (quotation and citation omitted). Because “the Amended Complaint is devoid of factual matter concerning the decisionmaker who implemented” the alleged over-detention policy, the Court need not credit the label of “policy” referenced in Plaintiffs’ pleading. See Lucero v. Early, Civil Action No. GLR-13-1036, 2018 WL 4333745, at *7 (D. Md. Sept. 11, 2018) (dismissing Monell claim due the pleading’s failure to allege the policymaking officials who implemented the alleged policy); see also Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007) (a pleading requires more than “labels and conclusions”). The Amended Complaint fails to allege that Director McDonough established a formal policy of over-detention.
Moreover, the Amended Complaint also fails to allege that Director McDonough condoned a custom or practice of over-detention. Plaintiffs contend
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that two (2) isolated instances of over-detention occurred in April 2020. (Doc. No. 135 at 37-38). Plaintiffs do not allege that Director McDonough knew of the alleged incidents. The isolated incidents of alleged over-detention far fall short of supporting an inference of “continued inaction in the face of a known history of widespread constitutional deprivations.” Milligan v. City of Newport News, 743 F.2d 227, 229-30 (4th Cir. 1984).9 Plaintiffs’ over-detention claim is due to be dismissed because they do not adequately allege Director McDonough established or approved a policy, custom, or practice of over-detention.
Even assuming that the Amended Complaint adequately alleged that Director McDonough established or condoned for a policy, custom, or practice of overdetention (it does not), Plaintiffs lack standing to pursue such a claim. Plaintiffs do not allege they suffered any constitutional deprivation from over-detention. Furthermore, Plaintiffs do not allege they are COVID-positive and are entitled to immediate release from PGCDOC’s custody. Stated differently, Plaintiffs are not subject to the policy or custom alleged in Count II of the Amended Complaint.
9 Compare Lucero, 2018 WL 4333745, at *9 (dismissing Monell claim based on a single alleged incident) and Peters v. City of Mount Rainier, No. JH-14-00955, 2014 WL 4855032, at *6 (D. Md. Sept. 29. 2014) (dismissing claim because “three solitary examples” were “insufficient, as a matter of law, to demonstrate the existence of an official municipal custom or policy”); with Owens v. Baltimore City State’s Attys. Office, 767 F.3d 379, 403 (4th Cir. 2014) (allegations of “reported and unreported cases” and “numerous” similar instances adequately supported Monell claim) and Garcia v. Montgomery Cnty., Civil No. JFM-12-3592, 2013 WL 4539394, at *5 (D. Md. Aug. 23, 2013) (noting that “the complaint alleges that Montgomery County was aware of unconstitutional actions by … towards [other] members of the media”).
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Because Plaintiffs are not “in immediate danger of sustaining some direct injury as the result” of any alleged custom or policy of over-detention,10 City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983), they allege only a “conjectural” or “hypothetical” risk of harm, and their over-detention claim is due to be dismissed. IV. PLAINTIFFS’ HABEAS PETITION FAILS TO STATE A CLAIM IN LIGHT OF THE
“ENTRENCHED” VIEW OF THE FOURTH CIRCUIT. The “entrenched” view of the Fourth Circuit holds that a habeas proceeding pursuant to 28 U.S.C. § 2241 does not constitute the proper mechanism for a detainee seeking relief on a conditions-of-confinement claim. Toure v. Hott, --- F.Supp.3d --, Civil Action No. 1:20-cv-395, 2020 WL 2092639, at *8 (E.D. Va. Apr. 29, 2020); see also Wilborn v. Mansukhani, 795 F. App’x 157, 162-64 (4th Cir. 2019) (per curiam); Rodriguez v. Ratledge, 715 F. App’x 261, 265-66 (4th Cir. 2017) (per curiam); Braddy v. Wilson, 580 F. App’x 172, 173 (4th Cir. 2014) (per curiam). For detainees such as Plaintiffs, a conditions-of-confinement claim falls under § 1983. See Wilborn, 795 F. App’x at 164; Ratledge, 715 F. App’x at 266. Stated differently, if a § 1983 claim would remedy the conditions of confinement alleged by a pretrial detainee, the detainee fails to state a habeas claim. Here, the Court previously found that “Plaintiffs’ habeas claim, at its core, is a challenge to prison conditions.” (Doc. No. 84 at 18). Plaintiffs’ pleading alleged
10 The current status of the Released Plaintiffs utterly dispels any allegation that they are in “immediate danger” of over-detention.
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“the very conditions that, if remedied, would mitigate the risk to all detainees, including the [medically vulnerable] subclass.” (Id.). The Court concluded that it “cannot plausibly read this Complaint as bringing” a challenge to the fact of Plaintiffs’ confinement at the Facility. (Id.). Thus, Plaintiffs’ four (4) separate causes of action pursuant to § 1983, not their habeas claim, provides the adequate mechanism for addressing any concerns regarding their conditions at the Facility.
In their Response, Plaintiffs fail to state why the “entrenched” view of the Fourth Circuit does not compel the dismissal of their habeas petition.11 The Response relies on a district court’s memorandum opinion in Coreas v. Bounds, which found that the civil immigration detainees in that action could pursue a habeas petition. Civil Action No. TDC-20-0780, 2020 WL 1663133, at *6-7 (D. Md. Apr. 3, 2020). But the reasoning in Coreas does not apply here for at least three (3) reasons. First, Coreas involved civil immigration detainees, not pretrial detainees like Plaintiffs. Id. at *1. The Coreas court relied on Zadvydas v. Davis, 533 U.S. 678 (2001), and concluded that civil immigration detainees traditionally received recourse to habeas writs. Coreas, 2020 WL 1663133, at *6. However, Zadvydas expressly limited civil immigration detainees’ reliance on a habeas petition to
11 Plaintiffs misread the Motion to the extent that Plaintiffs contend that Director McDonough does not challenge the adequacy of the factual allegations in support of the habeas claim. The Motion expressly stated that the Amended Complaint “fails to state a claim” pursuant to § 2241 and quoted from the Court’s opinion analyzing the inadequacy of Plaintiffs’ factual allegations. (Doc. No. 128-1 at 23-26).
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circumstances where the detainee challenged “detention that is without statutory authority.” 533 U.S. at 688. Here, Plaintiffs are not civil immigration detainees and do not allege that their detention at the Facility is “without statutory authority.”
Second, the Coreas court’s conclusion that a plaintiff’s request for a release from custody automatically brings the request within the province of habeas corpus runs contrary to clear case law. 2020 WL 1663133, at *6. Only an actual challenge to the fact, duration, or validity of confinement reaches the “heart” of habeas corpus to establish an appropriate § 2241 proceeding. See Toure, 2020 WL 2092639, at *7 (citing Wilborn, 795 F. App’x 157, and Preiser v. Rodriguez, 411 U.S. 475, 484, 487, 498 (1973)). Plaintiffs’ request for release from PGCDOC’s custody, without more, does not challenge the fact of their confinement.
Third, the Coreas court based its conclusion on a finding that the civil immigration detainees “may have no vehicle by which to seek redress for the constitutional violation they allege” if they did not receive access to § 2241. 2020 WL 1663133, at *7. This rationale clearly does not apply to this action. Plaintiffs’ § 1983 claims constitute an adequate vehicle “by which to seek redress” for their allegations. See Wilborn, 795 F. App’x at 164; Ratledge, 715 F. App’x at 266. In short, the reasoning of the Coreas court simply does not apply to this action. Plaintiffs’ habeas petition pursuant to § 2241 is due to be dismissed. V. THE AMENDED COMPLAINT FAILS TO STATE A § 1983 CLAIM BASED ON THE
LOCKDOWN MEASURES.
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The Amended Complaint fails to state a § 1983 claim based on the lockdown measures at the Facility. The Amended Complaint does not allege Plaintiffs’ current circumstances under the lockdown measures. Notably, the Amended Complaint alleges that a small percentage of the detainees “reported” widely varying circumstances under the lockdown measures at the Facility. (Doc. No. 120 at ¶ 189). The Amended Complaint does not allege that Plaintiffs experienced the same type of circumstances and leaves the Court to speculate Plaintiffs’ conditions under the lockdown measures. The Response cites to generalized allegations regarding the individual Plaintiffs’ circumstances in March and April 2020, (Doc. No. 135 at 25, n. 28), but Plaintiffs acknowledge that the lockdown measures continued to evolve as the threat from COVID-19 waned.12 (Doc. No. 120 at ¶ 191). Stated differently, the Amended Complaint fails to allege that Plaintiffs face “a substantial risk of serious harm” from the lockdown, Porter v. Clarke, 923 F.3d 348, 360 (4th Cir. 2019) (internal quotation omitted), because it does not allege Plaintiffs’ circumstances at the time they brought their § 1983 claim based on the lockdown measures at the Facility.13 The Amended Complaint fails to allege that Plaintiffs are
12 The Response also cites to statements from Craig Haney and Robert Sapolsky, (Doc. No. 135 at 19), but those statements also date from April 2020, i.e. they provide no insight into the current circumstances related to the lockdown measures. 13 Of course, the Released Plaintiffs were not even in PGCDOC’s custody at the time that Plaintiffs brought Count IV.
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experiencing “solitary confinement” in violation of their rights given the extraordinary circumstances created by the pandemic. Count IV of the Amended Complaint is due to be dismissed. VI. THE AMENDED COMPLAINT FAILS TO STATE A DUE PROCESS CLAIM.
The Amended Complaint fails to state a due process claim. With respect to Plaintiffs’ substantive due process claim for pretrial detainees,14 Plaintiffs concede that PGCDOC did not establish the current lockdown measures with an intent to punish detainees. (Doc. No. 135 at 26-27). To move forward with their substantive due process claim, Plaintiffs must allege that the current lockdown measures experienced by the Plaintiffs are “not reasonably related to a legitimate nonpunitive government objective….” Williamson v. Stirling, 912 F.3d 154, 175 (4th Cir. 2018).
Plaintiffs admit that PGCDOC implemented lockdown measures for the purpose of “preventing the spread of COVID-19.” (Doc. No. 135 at 28). For the reasons stated in Section V above, the Amended Complaint fails to allege Plaintiffs’ current circumstances under the lockdown measures. Given this failure to clearly allege Plaintiffs’ circumstances, the Amended Complaint does not adequately allege that those circumstances are “patently excessive” in relation to the objective of preventing the spread of COVID-19 at the Facility. Williamson, 912 F.3d at 178.
14 Plaintiffs clarified their pleading and concede they do not bring a substantive due process claim on behalf of post-conviction detainees at the Facility. (Doc. No. 135 at 29, n. 34).
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The fact that “the lockdown measures … worked to contain the spread of COVID19,” (Doc. No. 84 at 13), underscores Plaintiffs’ failure to allege how their circumstances are not reasonably related to preventing the spread of COVID-19. Plaintiffs’ substantive due process claim is due to be dismissed.
Plaintiffs’ procedural due process claims also fail. As stated above, the Amended Complaint does not clearly allege a failure to provide Plaintiffs with procedural safeguards related to lockdown measures. The pleading only alleges generalized descriptions of conditions, including review procedures, related to the lockdown measures without directly alleging whether Plaintiffs experienced those conditions. In short, the Amended Complaint fails to move Plaintiffs’ procedural due process claims from possible to plausible. See Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Moreover, Plaintiffs’ procedural due process argument utterly fails to acknowledge the well-established rule that emergency situations justify the modification of due process procedures. “Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained rights of both convicted prisoners and pretrial detainees.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). “Accordingly, [the Supreme Court has] held that even when an institutional restriction infringes a specific constitutional guarantee, … the practice must be evaluated in the light of the central
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objective of prison administration, safeguarding institutional security.” Id. at 547. The pandemic unquestionably required Prince George’s County and PGCDOC to institute a state of emergency. (Doc. No. 120 at ¶¶ 51-56). In emergency situations, such as the pandemic, courts consistently recognize that officials do not violate procedural due process if they place someone in lockdown for extended periods of time prior to, or even without, a hearing as a response to the emergency.15 The pandemic required lockdown measures to prevent the spread of COVID-19 at the Facility, and administrative hearings prior to instituting those measures was impossible. Under such circumstances, a modification of the due process procedures at the Facility did not violate procedural due process. Plaintiffs’ substantive and procedural due process claims are due to be dismissed. VII. THE PLRA PROHIBITS PLAINTIFFS’ REQUEST FOR INJUNCTIVE RELIEF.
In the Response, Plaintiffs noticeably fail to explain how the allegations in the Amended Complaint support their sweeping requests for broadly applicable, highly intrusive injunctive relief. Director McDonough pointed to five (5) examples of how Plaintiffs’ request for injunctive relief grossly exceeds the limits set by the PLRA in
15 See, e.g., Hayward v. Procunier, 629 F.2d 599, 599-603 (9th Cir. 1980) (five-month lockdown at California’s San Quentin Prison did not trigger the right to a due process hearing because of extensive violence at the prison); Negrete v. Lewis, No. C11-3436 RS (PR), 2012 WL 4903001, at *2 (N.D. Cal. Oct. 16, 2012) (“A prison lockdown may be imposed where warranted by a state of emergency.”); Jones v. Marquez, 526 F. Supp. 871, 881 (D. Kan. 1981) (granting summary judgment to officials because a “serious emergency” existed warranting extended placement of the plaintiffs in administrative segregation prior to a hearing).
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light of Plaintiffs’ allegations and claims. (Doc. No. 128-1 at 38-39). Plaintiffs do not cite to any allegations in the Amended Complaint which would support those requests for relief. Rather than engaging with Director McDonough’s argument directly, Plaintiffs contend that adjudicating their specific requests for relief at this stage of the proceedings would be “premature” because “the parties are in the middle of fact discovery.” (Doc. No. 135 at 41).
Plaintiffs’ argument that dismissal of their requests for injunctive relief would be “premature” misses the point. Even assuming that Plaintiffs’ claims are not dismissed in full (they should be), the claims will not support Plaintiffs’ requests for relief as a question of law pursuant to the PLRA and relevant case law. Plaintiffs were the masters of their pleading. If they desired the relief requested in the Amended Complaint, the law imposed on them the burden of adequately pleading allegations and claims supporting such relief. See generally Silvers v. Iredell Cnty. Dep’t of Social Servs., Civil Action No. 5:15-CV-00083-RLV-DCK, 2016 WL 427953, at *6 (W.D.N.C. Feb. 3, 2006) (“A plaintiff carries the burden of stating his claim and proving that he is entitled to the relief sought—from the commencement of the action through its termination”) (considering the adequacy of a complaint in ruling on a motion for default judgment). Plaintiffs failed to meet this burden.
Plaintiffs are not entitled to pursue discovery related to their requests for injunctive relief which remain unsupported by their pleading. Indeed, Plaintiffs’
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evident intention to pursue sweeping discovery counsels in favor of dismissing their requests for injunctive relief to properly limit discovery to the scope of their claims, rather than their extraordinarily broad, unsupported demands for injunctive relief. Plaintiffs’ request for injunctive relief is due to be dismissed as exceeding the scope of possible remedial relief available to Plaintiffs.
CONCLUSION For the foregoing reasons, as well as those set forth in Director McDonough’s Motion, Director McDonough respectfully requests that this Court issue an Order dismissing the Amended Complaint in its entirety for lack of subject-matter jurisdiction under Rule 12(b)(1) and failure to state a claim under Rule 12(b)(6) or, alternatively, granting summary judgment in favor of Director McDonough pursuant to Rule 56.
Respectfully submitted, RHONDA L. WEAVER COUNTY ATTORNEY ANDREW J. MURRAY DEPUTY COUNTY ATTORNEY /s/ Shelley L. Johnson
Andrew J. Murray, Fed. Bar No. 10511 Shelley Lynn Johnson, Fed. Bar No. 15853 Ann Elizabeth Koshy, Fed. Bar No. 19333 PRINCE GEORGE’S COUNTY OFFICE OF LAW Wayne K. Curry Administration Building 1301 McCormick Drive
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Filed: 08/21/20

Suite 4100 Largo, Maryland 20774 Telephone: (301) 952-5225 Facsimile: (301) 952-3071 ajmurray@co.pg.md.us sljohnson@co.pg.md.us aekoshy@co.pg.md.us
William R. Lunsford (pro hac vice) Stephen C. Rogers (pro hac vice) Kenneth S. Steely (pro hac vice) MAYNARD, COOPER & GALE, PC 655 Gallatin Street Huntsville, AL 35801 Telephone: (256) 512-5710 Facsimile: (256) 512-0119 blunsford@maynardcooper.com srogers@maynardcooper.com ksteely@maynardcooper.com

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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been served upon all attorneys of record in this matter, including without limitation the following, by the Court’s CM/ECF system on this 21st day of August, 2020:

Cadene Russell Brooks Edward Henderson Williams, II WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 Telephone: (202) 663-6115 cadene.brooks@wilmerhale.com ed.williams@wilmerhale.com

Katherine Chamblee Ryan Olevia Boykin Ryan Downer Elizabeth Ann Rossi CIVIL RIGHTS CORPS 1601 Connecticut Avenue Suite 800 Washington, DC 20009 Telephone: (610) 931-7715 Facsimile: (202) 605-8030 katie@civilrightscorps.org olevia@civilrightscorps.org ryan@civilrightscorps.org elizabeth@civilrightscorps.org

/s/ Shelley L. Johnson Of Counsel

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In April 2020, pretrial and post-conviction detainees at Prince George's County Jail filed this class action complaint in the U.S. District Court for the District of Maryland. The plaintiffs alleged that in light of COVID-19, they were being held in conditions that violated their Eighth and Fourteenth Amendment Rights. A subclass of pretrial, medically vulnerable plaintiffs also alleged that they are being held in violation of the Due Process Clause of the Fourteenth Amendment. On May 21, the court granted in part the plaintiff's motion for temporary restraining order. Defendant appealed and were denied a stay pending their appeal. On July 7, the plaintiffs submitted an amended complaint, pointing to the lack of mental health services during an indefinite lockdown. The parties filed a joint motion to stay proceedings on August 27 pending settlement talks. The case is ongoing. 