Input:
U.S. District Court District of Maine (Bangor) CIVIL DOCKET FOR CASE #: 1:20-cv-00175-JAW

DENBOW et al v. MAINE DEPARTMENT OF

Date Filed: 05/15/2020

CORRECTIONS et al

Date Terminated: 08/14/2020

Assigned to: JUDGE JOHN A. WOODCOCK, JR

Jury Demand: None

Referred to: MAGISTRATE JUDGE JOHN H. RICH III Nature of Suit: 530 Habeas Corpus

Cause: 28:2241 Petition for Writ of Habeas Corpus

(General)

(federa

Jurisdiction: Federal Question

Plaintiff
JOSEPH A DENBOW on his own and on behalf of a class of similarly situated persons

represented by A. ALEXANDER KULJIS SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP 333 SOUTH HOPE STREET STE 43RD FLOOR LOS ANGELES, CA 90071 213-617-4239 Fax: 213-443-2738 Email: akuljis@sheppardmullin.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

EMMA EATON BOND AMERICAN CIVIL LIBERTIES UNION OF MAINE PO BOX 7860 PORTLAND, ME 04112 207-619-8687 Email: ebond@aclumaine.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

MOE KESHAVARZI SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP 333 SOUTH HOPE STREET 43RD FLOOR LOS ANGELES, CA 90077 213-620-1780 Fax: 213-620-1398 Email: mkeshavarzi@sheppardmullin.com

Plaintiff
SEAN R RAGSDALE on his own and on behalf of a class of similarly situated persons

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
ROBERT TRASK STURGEON SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 333 S. HOPE ST. 43RD FLOOR LOS ANGELES, CA 90071 213-620-1780 Fax: 213-620-1398 Email: rsturgeon@sheppardmullin.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
ZACHARY L. HEIDEN AMERICAN CIVIL LIBERTIES UNION OF MAINE PO BOX 7860 PORTLAND, ME 04112 207-774-5444 Fax: 207-774-1103 Email: zheiden@aclumaine.org ATTORNEY TO BE NOTICED
represented by A. ALEXANDER KULJIS (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
EMMA EATON BOND (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MOE KESHAVARZI (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant MAINE DEPARTMENT OF CORRECTIONS
Defendant RANDALL A LIBERTY in his official capacity as Commissioner of Maine Department of Corrections

ROBERT TRASK STURGEON (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
ZACHARY L. HEIDEN (See above for address) ATTORNEY TO BE NOTICED
represented by JILLIAN R. O'BRIEN OFFICE OF THE ATTORNEY GENERAL 6 STATE HOUSE STATION AUGUSTA, ME 04333-0006 207-626-8582 Email: jill.obrien@maine.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
ALISA ROSS OFFICE OF THE ATTORNEY GENERAL 6 STATE HOUSE STATION AUGUSTA, ME 04333-0006 207-557-3862 Email: alisa.ross@maine.gov ATTORNEY TO BE NOTICED
JONATHAN R. BOLTON OFFICE OF THE ATTORNEY GENERAL STATE HOUSE STATION 6 AUGUSTA, ME 04333-0006 207-626-8551 Email: jonathan.bolton@maine.gov ATTORNEY TO BE NOTICED
represented by JILLIAN R. O'BRIEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ALISA ROSS (See above for address) ATTORNEY TO BE NOTICED
JONATHAN R. BOLTON (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/15/2020
05/15/2020 05/15/2020 05/15/2020 05/15/2020

# Docket Text
1 PETITION for Writ of Habeas Corpus 2241 , filed by JOSEPH A DENBOW, SEAN R RAGSDALE. (Attachments: # 1 Exhibit A Declaration of Petitioner Joseph Denbow, # 2 Exhibit B - Appendix of filings in Denbow v. State, # 3 Exhibit C - Declaration of Petitioner Sean Ragsdale, # 4 Exhibit D - Letter to Randall Liberty & Ben Beal, # 5 Exhibit E - Denial of Request for Accommodation for Mr. Ragsdale,
# 6 Exhibit F - Declaration of Marina Sideris, Esq., # 7 Exhibit G -
Request for Furlough, # 8 Exhibit H - Emails from Department of Corrections, # 9 Exhibit I - Declaration of Dr. Parrish, # 10 Exhibit J Att. A to Parrish Declaration (CV), # 11 Exhibit K - Goldenson Declaration, # 12 Exhibit L - Att. A to Goldenson Declaration (CV))(bfa) Modified on 5/18/2020 to correct description of Exhibit D(tcs). Modified on 5/19/2020 to seal exhibit G and H per counsel's indication of filing a motion to seal (tcs). Modified on 6/2/2020 to unseal exhibits G and H per withdrawal of motion (tcs). (Entered: 05/15/2020)
2 CIVIL COVER SHEET. (bfa) (Entered: 05/15/2020)
Filing Fee Paid via Credit Card ( Filing fee $ 400 receipt number AMEDC-2230667.), filed by JOSEPH A DENBOW, SEAN R RAGSDALE.(BOND, EMMA) (Entered: 05/15/2020)
3 NOTICE of Appearance by ZACHARY L. HEIDEN on behalf of All Plaintiffs (HEIDEN, ZACHARY) (Entered: 05/15/2020)
4 CERTIFICATION for Admission Pro Hac Vice of Moe Keshavarzi, Robert Sturgeon, and Alexander Kuljis filed by ZACHARY L. HEIDEN on behalf of All Plaintiffs (Total admission fee $ 300 receipt number AMEDC-2230734.) The District of Maine is a CM/ECF NextGen Court. If PHV counsel has not previously been granted electronic filing rights with the District of Maine, PHV counsel will now need to submit a PRO HAC VICE request in this District via PACER at www.pacer.gov (Attachments: # 1 PHV Certificate for

05/18/2020
05/18/2020 05/18/2020
05/18/2020 05/18/2020 05/18/2020 05/18/2020
05/18/2020 05/19/2020

Robert Sturgeon, # 2 PHV Certificate for Alexander Kuljis)(HEIDEN, ZACHARY) (Entered: 05/15/2020)
Set Deadlines : Maine has transitioned to the NextGen ECF filing system; therefore, to complete the admissions process, Attorney Moe Keshavarzi, Attorney Robert Sturgeon, and Attorney Alexander Kuljis must register for a PACER account and/or register for e-filing rights in the District of Maine via PACER at www.pacer.gov by 5/26/2020. For more details on NextGen/Pacer go to our website at www.med.uscourts.gov. (tcs) (Entered: 05/18/2020)
5 MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction by JOSEPH A DENBOW, SEAN R RAGSDALE Responses due by 6/8/2020. (Attachments: # 1 Declaration of Prof. Judith Resnik, # 2 Ex. A - Resnik CV)(BOND, EMMA) (Entered: 05/18/2020)
6 NOTICE of Hearing on Motion 5 MOTION for Temporary Restraining Order; MOTION for Preliminary Injunction - Telephone Conference set for 5/18/2020 03:00 PM before JUDGE JOHN A. WOODCOCK JR. Parties have been provided with Court's call in information.(tcs) (Entered: 05/18/2020)
7 NOTICE of Appearance by JILLIAN R. O'BRIEN on behalf of RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS (O'BRIEN, JILLIAN) (Entered: 05/18/2020)
8 NOTICE of Appearance by ALISA ROSS on behalf of RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS (ROSS, ALISA) (Entered: 05/18/2020)
9 NOTICE of Appearance by JONATHAN R. BOLTON on behalf of RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS (BOLTON, JONATHAN) (Entered: 05/18/2020)
10 Minute Entry for proceedings held before JUDGE JOHN A.
WOODCOCK, JR: Telephone Conference held re 5 MOTION for Temporary Restraining Order; MOTION for Preliminary Injunction. Conference to be continued. Joint Status Report due by 5:00PM on 5/20/2020. (Court Reporter: Lori Dunbar) (tcs) (Entered: 05/18/2020)
11 NOTICE of Hearing on Motion 5 MOTION for Temporary Restraining Order; MOTION for Preliminary Injunction - Continued Telephone Conference set for 5/21/2020 01:00 PM before JUDGE JOHN A. WOODCOCK JR. (tcs) (Entered: 05/18/2020)
12 NOTICE/CORRESPONDENCE Re: First Confirmed COVID-19 Case in Maine Department of Corrections Custody by JOSEPH A DENBOW, SEAN R RAGSDALE (Attachments: # 1 Article Regarding

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

First Positive COVID-19 Case in DOC Custody)(BOND, EMMA) (Entered: 05/19/2020)
13 STATUS REPORT (JOINT) by RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS. (Attachments: # 1 Exhibit MDOC Press Release, # 2 Exhibit Superior Court Docket Sheet, # 3 Exhibit Superior Court Orders)(O'BRIEN, JILLIAN) (Entered: 05/20/2020)
14 MOTION to Seal Exhibits by JOSEPH A DENBOW, SEAN R RAGSDALE Responses due by 6/11/2020. (BOND, EMMA) Modified on 6/2/2020 to unseal per withdrawal of motion at ECF No. 23 (tcs). (Entered: 05/21/2020)
15 REDACTED Document re 1 PETITION for Writ of Habeas Corpus Att. G and H to Petition by JOSEPH A DENBOW, SEAN R RAGSDALE. (Attachments: # 1 Att. B to Sideris Decl.)(BOND, EMMA) (Entered: 05/21/2020)
16 NOTICE/CORRESPONDENCE Re: Supplemental Authority in Cameron v. Bouchard by JOSEPH A DENBOW, SEAN R RAGSDALE (Attachments: # 1 Cameron v. Bouchard Opinion, # 2 Cameron v. Bouchard Order)(BOND, EMMA) (Entered: 05/21/2020)
17 Minute Entry for proceedings held before JUDGE JOHN A. WOODCOCK, JR: Telephone Conference Continued and Completed. Defendants' Statement of Policies and Procedures due by 5/27/2020. Petitioners' Reply to Statement of Policies and Procedures due by 5/29/2020. (Court Reporter: Lori Dunbar) (tcs) (Entered: 05/21/2020)
Reset Deadlines per Telephone Conference Held 5/21/2020 as to 5
MOTION for Temporary Restraining Order: Defendants' Responses due by 5/27/2020. Petioners' Reply due by 5/29/2020. (tcs) (Entered: 05/21/2020)
18 NOTICE of Video Hearing on Motion 5 MOTION for Temporary Restraining Order - Oral Argument set for 6/2/2020 10:00 AM before JUDGE JOHN A. WOODCOCK JR. All participants have been emailed information for attending the hearing by video.(tcs) (Entered: 05/21/2020)
19 RESPONSE to Motion re 5 MOTION for Temporary Restraining Order filed by RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS. Reply due by 6/10/2020. (O'BRIEN, JILLIAN)

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05/27/2020 05/28/2020 05/29/2020
06/01/2020 06/02/2020 06/08/2020 06/09/2020

Modified on 5/28/2020 to remove preliminary injunction language (tcs). (Entered: 05/27/2020)
20 AFFIDAVIT of Dr. Ryan Thornell re 19 Response to Motion filed by RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS. (Attachments: # 1 Exhibit March 5, 2020 Memo, # 2 Exhibit March 13, 2020 Memo, # 3 Exhibit US CDC Corrrectional Guidelines, # 4 Exhibit Photos, # 5 Exhibit Public Health Alert Advisory, # 6 Exhibit May 22 Press Release, # 7 Exhibit May 23 Press Release, # 8 Exhibit SCCP Policy)(O'BRIEN, JILLIAN) (Entered: 05/27/2020)
21 AFFIDAVIT of Dr. John Newby re 19 Response to Motion filed by RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS. (O'BRIEN, JILLIAN) (Entered: 05/27/2020)
Reset Deadlines Per Telephone Conference Held 5/21/2020 as to 5
MOTION for Temporary Restraining Order: Reply due by 5/29/2020. (tcs) (Entered: 05/28/2020)
22 REPLY to Response to Motion re 5 MOTION for Temporary Restraining Order filed by JOSEPH A DENBOW, SEAN R RAGSDALE. (Attachments: # 1 Ex. A - U.N. Statement, # 2 Ex. B Supp. Dr. Parrish Decl., # 3 Ex. C - Gross Decl., # 4 Ex. D - Sukeforth Decl., # 5 Ex. E - Supp. Ragsdale Decl., # 6 Ex. F - Supp. Denbow Decl., # 7 Ex. G - Gray Decl., # 8 Ex. H - Bond Decl.)(BOND, EMMA) Modified on 6/1/2020 to remove preliminary injunction language (tcs). (Entered: 05/29/2020)
23 WITHDRAWAL of 14 MOTION to Seal Exhibits by JOSEPH A DENBOW, SEAN R RAGSDALE . (BOND, EMMA) Modified on 6/2/2020 to clean up docket text (tcs). (Entered: 06/01/2020)
24 Minute Entry for proceedings held before JUDGE JOHN A.
WOODCOCK, JR: Motion Hearing held re 5 MOTION for Temporary Restraining Order filed by SEAN R RAGSDALE, JOSEPH A DENBOW. (Court Reporter: Melissa Merenberg) (tcs) (Entered: 06/02/2020)
25 ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER
dismissing without prejudice 5 Motion for TRO By JUDGE JOHN A. WOODCOCK, JR. (CCS) (Entered: 06/08/2020)
26 NOTICE of Hearing: Telephone Conference set for 6/11/2020 10:00 AM before JUDGE JOHN A. WOODCOCK JR. Parties have been provided with Court's call in information. (tcs) (Entered: 06/09/2020)

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06/22/2020

27 Minute Entry for proceedings held before JUDGE JOHN A. WOODCOCK, JR: Telephone Conference held. Joint Proposal due 6/12/2020 by 5:00PM. (Court Reporter: Melissa Merenberg) (tcs) (Entered: 06/11/2020)
28 JOINT Proposed Discovery and Motion Filing Plan by JOSEPH A DENBOW, SEAN R RAGSDALE. (BOND, EMMA) (Entered: 06/12/2020)
29 ORDER ON JOINT PROPOSED SCHEDULING ORDER re 28 Joint Proposed Discovery and Motion Filing Plan filed by SEAN R RAGSDALE, JOSEPH A DENBOW By JUDGE JOHN A. WOODCOCK, JR. (CCS) (Entered: 06/15/2020)
Set Deadlines, per Order at ECF No. 29 : Respondents' Motion to Dismiss due by 6/22/2020. Petitioners' response due by 7/13/2020. No replies permitted without leave of Court. Discovery due by 7/24/2020. Pre-hearing memoranda due by 7/31/2020. (CCS) (Entered: 06/15/2020)
30 NOTICE/CORRESPONDENCE Re: STATUS UPDATE AND STATEMENT OF DISCOVERY REQUESTS BY PETITIONERS AND OBJECTIONS BY RESPONDENTS [JOINT FILING] by RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS (Attachments: # 1 Exhibit Proposed Document Requests and Interrogatories, # 2 Exhibit Proposed 30(b)(6) Notice)(O'BRIEN, JILLIAN) (Entered: 06/17/2020)
31 MOTION to Dismiss by RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS Responses due by 7/13/2020. (Attachments: # 1 Exhibit A - State's Response to PCR petition, # 2 Exhibit B - PCR petition, # 3 Exhibit C - PCR docket sheet, # 4 Exhibit D - Petitioner's memo of law in PCR proceeding, # 5 Exhibit E - Petitioner's emergency motion for release on bail, # 6 Exhibit F - 4/23/20 Order of Justice Anderson, # 7 Exhibit G Petitioner's emergency motion for bail hearing, # 8 Exhibit H - State's opposition to emergency motion, # 9 Exhibit I - Petitioner's reply on emergency motion, # 10 Exhibit J - special assignment order, # 11 Exhibit K - emails with Oxford County Superior Court clerk's office, # 12 Exhibit L - amended special assignment order, # 13 Exhibit M - Petitioner's renewed motion for bail, # 14 Exhibit N - PMO-SJC-1, # 15 Exhibit O - Judicial Branch Phased Management Plan, # 16 Exhibit P - Judicial Branch Press Release, # 17 Exhibit Q - procedural order in Avangrid v. Sec'y of Statae, # 18 Exhibit R - order denying petition for writ of habeas corpus in State v. A.I.)(BOLTON, JONATHAN) (Entered: 06/22/2020)

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07/10/2020 07/10/2020

32 AFFIDAVIT of Deputy Commissioner Ryan Thornell re 31 MOTION to Dismiss filed by RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS. (BOLTON, JONATHAN) (Entered: 06/22/2020)
33 AFFIDAVIT of Deputy Attorney General Lisa Marchese re 31 MOTION to Dismiss filed by RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS. (BOLTON, JONATHAN) (Entered: 06/22/2020)
34 INTERIM ORDER ON DISCOVERY REQUESTS By JUDGE JOHN A. WOODCOCK, JR. (CCS) (Entered: 06/25/2020)
Set Deadlines pursuant to Order at ECF No. 34 : Respondents' memo due by 7/3/2020. Petitioners' response due by 7/10/2020. Reply by leave of Court only - any motion for leave to reply due by 7/13/2020. (CCS) (Entered: 06/25/2020)
35 MEMORANDUM by RANDALL A LIBERTY, MAINE
DEPARTMENT OF CORRECTIONS in support of 34 Order in support of application of the Rules Governing §2254 Cases to this Action. (BOLTON, JONATHAN) (Entered: 07/02/2020)
36 Consent MOTION for Confidentiality Order by RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS Responses due by 7/29/2020. (Attachments: # 1 Text of Proposed Order Consent Confidentiality Order)(O'BRIEN, JILLIAN) (Entered: 07/08/2020)
37 CONSENT CONFIDENTIALITY ORDER granting 36 Motion for Confidentiality Order: The Court APPROVES the parties' Consent Confidentiality Order. However, the Court notes, based on United States v. Kravetz, 706 F.3d 47 (1st Cir. 2013), that its approval of confidentiality for purposes of discovery may not extend to trial or dispositive motions as the legal standards for confidentiality in those circumstances are different. By JUDGE JOHN A. WOODCOCK, JR. (CCS) (Entered: 07/09/2020)
38 MEMORANDUM by JOSEPH A DENBOW, SEAN R RAGSDALE in
support of 34 Order in Opposition to Conversion to a Section 2254 Petition. (BOND, EMMA) (Entered: 07/10/2020)
39 MOTION to Amend Petition by Adding Party by JOSEPH A DENBOW, SEAN R RAGSDALE Responses due by 7/31/2020. (Attachments: # 1 Exhibit A - Proposed Amended Petition (Track Changes), # 2 Exhibit B - Proposed Amended Petition)(BOND, EMMA) (Entered: 07/10/2020)

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40 RESPONSE in Opposition re 31 MOTION to Dismiss filed by JOSEPH A DENBOW, SEAN R RAGSDALE. Reply due by 7/27/2020. (Attachments: # 1 Exhibit A - Denbow Motion to Add Class Claims in State Court, # 2 Exhibit B - State Court Docket, # 3 Declaration of Attorney Hamlen, # 4 Exhibit A to Hamlen Decl., # 5 Exhibit B to Hamlen Decl.)(BOND, EMMA) (Entered: 07/13/2020)
41 ORDER ON CONVERSION OF PETITION, APPLICATION OF HABEAS RULES, AND DISCOVERY REQUESTS By JUDGE JOHN A. WOODCOCK, JR. (CCS) (Entered: 07/15/2020)
42 NOTICE/CORRESPONDENCE Re: Motion to Dismiss by RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS (Attachments: # 1 Exhibit A - Order Dismissing Denbow v. State of Maine, # 2 Exhibit B - Order Denying Motion for Bail in Denbow v. State of Maine)(BOLTON, JONATHAN) (Entered: 07/15/2020)
43 ORDER re 42 Notice (Other)/Correspondence re: 31 MOTION to Dismiss filed by MAINE DEPARTMENT OF CORRECTIONS, RANDALL A LIBERTY, filed by MAINE DEPARTMENT OF CORRECTIONS, RANDALL A LIBERTY : Although the Respondents were required to file a motion for leave to file a reply, they did not do so and instead filed a letter on July 15, 2020, asserting it was not a reply. The letter attaches two new Superior Court orders and cites eight federal district court cases decided from June 22, 2020, through July 10, 2020, where the Respondents represent the courts have dismissed or recommended dismissal of COVID-19 related federal habeas petitions for failure to exhaust administrative remedies. The Court considers Respondents' letter to be a reply and grants its presumed motion for leave to file reply. In fairness to Petitioners, the Court will allow them to file a sur-reply to the Respondents' reply by the end of the day on Monday, July 20, 2020. SO ORDERED. By JUDGE JOHN A. WOODCOCK, JR. (CCS) (Entered: 07/15/2020)
Set Deadlines as to 31 MOTION to Dismiss : Sur-Reply due by 7/20/2020. (tcs) (Entered: 07/15/2020)
44 AFFIDAVIT of Ryan Thornell re 20 Affidavit, CORRECTION filed by RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS. (O'BRIEN, JILLIAN) (Entered: 07/17/2020)
45 SUR-REPLY to Motion re 31 MOTION to Dismiss filed by JOSEPH A DENBOW, SEAN R RAGSDALE. (BOND, EMMA) (Entered: 07/20/2020)
46 NOTICE/CORRESPONDENCE Re: JOINT NOTICE RE PETITIONER RAGSDALE by RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS (O'BRIEN, JILLIAN) (Entered: 07/21/2020)

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47 MOTION to Amend Scheduling Order by JOSEPH A DENBOW, SEAN R RAGSDALE Responses due by 8/18/2020. (BOND, EMMA) (Entered: 07/28/2020)
48 ORDER granting 47 Motion to Amend Scheduling Order By JUDGE JOHN A. WOODCOCK, JR. (tcs) (Entered: 07/28/2020)
Reset Scheduling Order Deadlines per Order at ECF No. 48: Discovery due by 7/31/2020. (tcs) (Entered: 07/28/2020)
Reset Deadlines per Order at ECF No. 48:. Pre-hearing Memoranda due by 8/7/2020. (tcs) (Entered: 07/28/2020)
49 RESPONSE in Opposition re 39 MOTION to Amend Petition by Adding Party filed by RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS. Reply due by 8/13/2020. (O'BRIEN, JILLIAN) (Entered: 07/30/2020)
50 Consent MOTION to Amend Scheduling Order by RANDALL A LIBERTY, MAINE DEPARTMENT OF CORRECTIONS Responses due by 8/27/2020. (O'BRIEN, JILLIAN) (Entered: 08/06/2020)
51 ORDER re 45 Sur-Reply to Motion filed by SEAN R RAGSDALE, JOSEPH A DENBOW: The Court has reviewed Petitioners' Sur-Reply in Opposition to Motion to Dismiss (ECF No. 45) and notes that it appears the appeal deadline for Mr. Denbow's state post-conviction review petition was Tuesday, August 4, 2020. In order to properly evaluate Respondents' arguments about Younger abstention, the Court ORDERS Petitioners to inform the Court whether they did pursue an appeal by end of day Thursday, August 6, 2020 By JUDGE JOHN A. WOODCOCK, JR. (CCS) (Entered: 08/06/2020)
52 ORDER granting 50 Motion to Amend Scheduling Order By JUDGE JOHN A. WOODCOCK, JR. (tcs) (Entered: 08/06/2020)
Reset Deadlines per Order at ECF No. 52: Pre-hearing Memoranda due by 8/14/2020. (tcs) (Entered: 08/06/2020)
Set Deadlines per Order at ECF No. 51: Petitioners to inform the Court whether appeal was pursued by 4:00PM on 8/7/2020. (tcs) (Entered: 08/06/2020)
Reset Deadlines (Previous Deadline Set in Error) per Order at ECF No. 51: Petitioners to inform the Court whether appeal was pursued by 4:00PM on 8/6/2020. (tcs) (Entered: 08/06/2020)
53 NOTICE/CORRESPONDENCE Re: Status of Mr. Denbow's State Post-Conviction Review by JOSEPH A DENBOW, SEAN R RAGSDALE (BOND, EMMA) (Entered: 08/06/2020)

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08/14/2020

54 REPLY to Response to Motion re 39 MOTION to Amend Petition by Adding Party filed by JOSEPH A DENBOW, SEAN R RAGSDALE. (BOND, EMMA) (Entered: 08/12/2020)
55 ORDER ON MOTION TO DISMISS - granting 31 Motion to Dismiss;
dismissing without prejudice 1 Petition for Writ of Habeas Corpus;
dismissing 5 Motion for Preliminary Injunction as Moot; dismissing 39 Motion to Amend as Moot By JUDGE JOHN A. WOODCOCK, JR. (tcs) (Entered: 08/14/2020)
56 JUDGMENT By DEPUTY CLERK: Teagan Snyder (tcs) (Entered: 08/14/2020)

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 Case 1:20-cv-00175-JAW Document 5 Filed 05/18/20 Page 1 of 22 PageID #: 188

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,
Petitioners,

Case No. 20-cv-00175-JAW

v.
MAINE DEPARTMENT OF CORRECTIONS and RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity,
Respondents

CLASS MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION, WITH INCORPORATED MEMORANDUM OF LAW

INTRODUCTION Petitioners Joseph Denbow and Sean Ragsdale are prisoners incarcerated by the Maine Department of Corrections (“DOC”) who, as a result of age and underlying medical issues, and disabilities, are at high risk of serious illness or death from COVID-19. If there were a vaccine or medical treatment for COVID-19, the constitution and federal disability law would require Respondents DOC and Commissioner Randall A. Liberty (“Respondents”) to provide it to prisoners, even if providing such care was expensive or inconvenient. See, e.g., Estelle v. Gamble, 429 U.S. 97, 105 (1976); Smith v. Aroostook Cty., 376 F. Supp. 3d 146, 159-60 (D. Me. 2019). But there is no vaccine or effective treatment for the coronavirus. Parrish Decl. ¶ 16, ECF No. 1-9. That makes prevention of the disease of paramount importance, especially for medically vulnerable individuals. Id. Physical distancing is the cornerstone for preventing infection with COVID-19. Goldenson Decl. ¶ 27, ECF No. 1-11. Yet it is impossible for prisoners to physically distance in DOC facilities. See, e.g., Denbow Decl. ¶ 22, ECF No. 1-1; Ragsdale Decl. ¶¶ 12-14, ECF No. 1-3; Sideris Decl., Att. A at 2, ECF No. 1-7. Nor does DOC take other necessary measures

1

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to prevent the spread of COVID-19, such as providing alcohol-based hand sanitizer or providing widespread testing for detection and control of any outbreak. Denbow Decl. ¶¶ 15-26; Ragsdale Decl. ¶¶ 12-22. Under such circumstances, providing adequate preventive care for medically vulnerable prisoners requires release to locations where they can physically distance and perform proper preventative hygiene. See, e.g., Goldenson Decl. ¶¶ 43-44; Parrish Decl. ¶ 35. As another court recently explained, “without social distancing measures” in prison, “transfer to home confinement (or compassionate release . . .) [is] the only viable measure by which the safety of highly vulnerable inmates can be reasonably assured.” Martinez-Brooks v. Easter, No. 3:20-CV00569 (MPS), 2020 WL 2405350, at *23 (D. Conn. May 12, 2020).
Yet although it has authority to grant release through medical furloughs and home confinement, 34-A M.R.S. §§ 3035(2)(C), 3036-A, DOC has generally refused to release medically vulnerable prisoners during the COVID-19 pandemic. According to its Classification Director, DOC “is not utilizing the medical furlough to release clients during the COVID19 pandemic.” Sideris Decl., Att. B. Similarly, despite the claimed availability of its home confinement program, DOC’s approval process all but ensures that the program is unavailable for those who need it most. As one DOC staff member stated, “there’s nobody being released because of medical conditions, so you can just get that idea right out of your head.” Denbow Decl. ¶ 13.
On Friday, May 15, 2002, Petitioners Mr. Denbow and Mr. Ragsdale filed a Class Habeas Petition under 28 U.S.C. § 2241, on behalf of themselves and a putative class of other medically vulnerable prisoners. Given the emergency harms facing all Class Members, Petitioners respectfully request that the Court issue a temporary restraining order or preliminary injunction:
(1) provisionally certifying the class1 and ordering Respondents to provide a list of all
1 This Court need not formally certify a class in order to issue the requested emergency relief. See, e.g., Newberg on Class Actions § 24:83 (4th ed. 2002) (“The absence of formal
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medically vulnerable prisoners in their custody (“Class Members”), specifically identifying those who will be released in the next year (the “Imminent Release Subclass”), those who are classified as minimum or community security (the “Minimum Security Subclass”), and those who are medically vulnerable because of a federally protected disability (the “Disability Subclass”); (2) ordering Respondents to evaluate each Class Member for home confinement, furlough, or another accommodation, or, in the alternative, appointing a Rule 706 expert to complete such evaluations, see, e.g., Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882, at *10–11 (N.D. Ohio Apr. 22, 2020); (3) granting enlargement to Class Members to safely physically distance in the community or another appropriate setting, see e.g., Resnik Decl. ¶¶ 27-29; Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844, at *8 (D. Mass. Apr. 8, 2020) (citing Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972) (per curiam)) (discussing release authority in habeas actions); and (4) for any Class Members who remain incarcerated, mandating compliance with U.S. Centers for Disease Control and Prevention (CDC) guidance including adequate physical distancing and necessary hygiene, see 28 U.S.C. § 2243 (authorizing courts in habeas actions to “dispose of the matter as law and justice require”); Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 2404923, at *3 & n.6 (D. Mass. May 12, 2020) (exercising necessary equitable authority “to balance the equities as the litigation moves forward” (quoting Trump v. International Refugee Assistance Project (IRAP), 137 S. Ct. 2080, 2087 (2017)). Given the exponential infection rates of COVID-19 and the risk of its rapid, undetected spread in
closed, congregate settings, time is of the essence.
FACTUAL BACKGROUND
I. Physical Distancing Is Necessary to Control the Deadly Coronavirus
In the past several months, every aspect of our society has changed in response to the novel
coronavirus, SARS-CoV-2, a contagious and deadly virus first identified in Wuhan City, China,
and that rapidly spread across the globe. See Declaration of Dr. Nirav Shah ¶¶ 9, 11, Cavalry
Chapel of Bangor v. Mills, Docket No. 20-cv-156-NT, ECF No. 20 (May 8, 2020) (hereafter Shah
certification is no barrier to classwide preliminary injunctive relief.”); Moore’s Federal Practice § 23.50, at 23-396, 23-397 (2d ed.1990) (“Prior to the Court’s determination whether plaintiffs can maintain a class action, the Court should treat the action as a class suit.”); Gomes v. Acting Sec’y, DHS, No. 20-CV-453-LM, 2020 WL 2113642, at *1 (D.N.H. May 4, 2020) (“provisionally certify[ing] the class for the purpose of holding expedited bail hearings”).
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Decl.). The virus is especially dangerous and deadly for medically vulnerable individuals who are older or who have underlying medical conditions such as diabetes, lung disease, or heart disease. Parrish Decl. ¶¶ 7-9. Early reports estimate that the mortality rate is 13.2% for those with cardiovascular disease, 9.2% for those with diabetes, 8.4% for those with hypertension, 8.0% for those with chronic respiratory disease, and 7.6% for those with cancer. Id. ¶ 9.
Because there is no vaccine or effective treatment for the virus, prevention is paramount, especially for those who are medically vulnerable. Shah Decl.¶¶ 18-20, 31. The “most effective” preventive measure is physical distancing. Id. ¶ 19. Both the federal and Maine Centers for Disease Control and Prevention have determined that effective physical distancing “requires a minimum separation of six feet between individuals and avoiding gatherings of people.” Id. ¶ 20 (emphasis added). Indeed, since Governor Mills declared a state of emergency in Maine on March 15, 2020, the State has issued multiple directives encouraging or requiring physical distancing, all of which are designed to slow the spread of the virus, limit the burden on local hospitals, and reduce serious illness and death. Cavalry Chapel of Bangor v. Mills, No. 1:20-CV-00156-NT, 2020 WL 2310913, at *2-*4 (D. Me. May 9, 2020) (listing state-imposed restrictions and stay-at-home mandates).
Physical distancing is critical not only to slow the spread of the virus on a population-wide basis, but also as a means of protecting medically vulnerable persons on an individual basis. Parrish Decl. ¶ 30. Stated differently, physical distancing is like a vaccine that “work[s] on both an individual basis, by preventing or attenuating clinical disease in a person exposed to the pathogen, and also on a population basis, by affecting herd immunity.” Id. (citation omitted). Indeed, according to the Director of the Maine CDC, “[p]hysical distancing is the best vaccine that we have.” Maine CDC briefing: April 1, 2020 (available at https://www.youtube.com/watch?v= nX4ljxGU4VI). “Social distancing is especially important for people who are at higher risk of
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getting very sick.” Parrish Decl. ¶ 19 (citation omitted). II. Physical Distancing Is Impossible In Maine Department of Corrections Facilities
For the more than 900 medically vulnerable Mainers under DOC’s sole custody and control, physical distancing is impossible, and the inability to physically distance may be deadly. Sideris Decl. Att. B at 1 (DOC Classification Director stating that there are approximately 925 prisoners with preexisting conditions and risks). Prisoners are housed in dorms with fifty or more people, with whom they come into close contact each day and share communal showers. See, e.g., Denbow Decl. ¶¶ 15-16; Ragsdale Decl. ¶¶ 12-13. Most prisoners sleep two to four in a cell. See, e.g., Denbow Decl. ¶ 17; Ragsdale Decl. ¶ 14. Although some prisoners have sinks and toilets in their cells, others are housed in “dry cells” and are required to share sinks, toilets, and showers with the dozens of other prisoners. See Denbow Decl. ¶ 16; Ragsdale Decl. ¶ 13. Prisoners spend much of the day in small and crowded dayrooms where physical distancing is impossible. Denbow Decl. ¶ 22; Ragsdale Decl. ¶ 19 Those who require medication must wait in line where they are bunched together. Id. When traveling throughout the facility, prisoners are bunched together and cannot physically distance. Id.
Class Members are frequently exposed to other prisoners throughout the facility, and to prison staff who circulate to and from the community each day. Although DOC has taken some steps to limit exposure to prisoners from other dorms, prisoners from different dorms still mix when transitioning to and from the meal hall and when outside in the smoking area. Denbow Decl. ¶ 22; Ragsdale Decl. ¶ 19. Officers from all different dorms congregate in staff common rooms, without masks, and then travel to each of their respective posts in the facilities. Denbow Decl. ¶ 26; Ragsdale Decl. ¶ 22. With the progressive reopening of the economy, moreover, there are ever more opportunities for prison staff to contract the virus in the community and to carry it back
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into the prison, increasing the risk of COVID-19 spreading among the prison population. Parrish Decl. ¶ 28. Prisoners with medical needs are even more exposed. Those who receive medical care come into close contact with medical staff, who sometimes do not wear gloves. See Ragsdale Decl. ¶ 19(k). Likewise, corrections officers shine flashlights directly into the mouths of prisoners who receive medication for addiction treatment (“MAT”), in close quarters. Denbow Decl. ¶ 22(d).
DOC’s current precautionary measures are no substitute for physical distancing. For example, despite concerns with asymptomatic and pre-symptomatic transmission of the virus, see, e.g., Shah Decl., ¶ 16, DOC has performed only limited testing of prisoners with symptoms of COVID-19. Because COVID-19 spreads rapidly through asymptomatic carriers, testing of symptomatic patients alone is ineffective at preventing, or even slowing, the spread of the disease. See Parrish Decl. ¶ 27. The focus on symptoms is particularly concerning in prison because some prisoners are so afraid of being forced into segregation or isolation that they have said they will not self-report any symptoms of COVID-19. Denbow Decl. ¶ 23; Ragsdale Decl. ¶ 21. Nonetheless, DOC does not test prisoners or staff who are exposed to another positive case unless they become symptomatic, Parrish Decl. ¶ 34 & n.69 (citing sources), and as of May 14, 2020, DOC had tested only 26 prisoners, or 1.3 percent of incarcerated adults. Daily Dashboard, https://bit.ly/2Z1Ay3r (last visited May 14, 2020).
Similarly, another element of prevention, hand hygiene, is lacking for prisoners in DOC custody. Contrary to CDC guidelines, the hand sanitizer provided to prisoners contains no alcohol and is thus ineffective to help reduce the spread of COVID-19. Parrish Decl. ¶ 25; Goldenson Decl. ¶ 25. Petitioners are able to wash their hands only in a communal bathroom shared with approximately fifty other prisoners. Denbow Decl. ¶ 20(b); Ragsdale Decl. ¶ 17. Although DOC provides prisoners with gloves and spray bottles to clean the dormitories and bathrooms, no bleach-
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based materials are provided, and there is minimal supervision to ensure consistent or thorough cleaning. Denbow Decl. ¶ 19; Ragsdale Decl. ¶ 16.
DOC provides prisoners with access to two masks, but most staff and prisoners do not wear them most of the time. Denbow Decl. ¶ 21 (describing additional concerns with the masks); Ragsdale Decl. ¶ 18 (same). In any event, masks offer only limited utility to someone trying to avoid catching the infection, especially when they are in close contact with others who are not wearing masks. Parrish Decl. ¶ 26. It is well established that “[m]asks are no substitute for necessary preventive measures like physical distancing.” Id.
In sum, crowded settings, poor hygiene, and the absence of adequate testing are a recipe for the rapid spreading of COVID-19, and the disease may well be spreading undetected throughout the prisons at this very moment. See Parrish Decl. ¶ 34. Outbreaks in correctional facilities around the country illustrate the substantial risks posed to prisoners, prison staff, and the entire community. See, e.g., Goldenson Decl. ¶ 37 (citing outbreaks in prisons). III. DOC Has Categorically Refused to Take Necessary Measures within Its Authority to
Enable Medically Vulnerable Prisoners to Physically Distance Despite the impossibility of physical distancing in DOC facilities, DOC has categorically refused to allow medical furlough and has applied home confinement in such a limited way as to be effectively unavailable for those who need it most. See Sideris Decl. Att. B; Denbow Decl. ¶¶ 914; Ragsdale Decl. ¶¶ 8-11. According to the DOC website, there are only 64 prisoners currently on home confinement, out of a total 1934 prisoners. Daily Dashboard (May 14, 2020), https://bit.ly/3fRsJmQ. Petitioners’ experiences illustrate the point. Mr. Denbow is 54 years old and has asthma, COPD, and is in remission from cancer. Id. ¶¶ 4-8. He is incarcerated for driving without a license and aggravated forgery (i.e., for initially giving his brother’s name, instead of his own, to a traffic
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officer). Id. ¶ 2. He is classified as “minimum” security and his earliest release date is August 30, 2020, approximately three months away. Id. ¶¶ 2, 9. Before the COVID-19 restrictions, Mr. Denbow frequently worked in the community during the day and returned to the facility at night. Id. ¶ 9. Mr. Denbow applied for release to the community. Yet, DOC did not even consider him for medical furlough because it has categorically refused to allow that service during the COVID19 pandemic. See Sideris Decl. Att. B. DOC also denied him home confinement.2 The State has never reconsidered that decision, even after Mr. Denbow filed an action for post-conviction review challenging his ongoing incarceration. See Appendix of Filings in Denbow v. State, ECF No. 1-2. Instead, the State argued that Mr. Denbow should not even receive a hearing on his motion for post-conviction bail. See id. at 38-41. Five weeks after Mr. Denbow originally filed the motion for post-conviction review, he still has not received a hearing. See generally id.
Similarly, Mr. Ragsdale has been effectively denied home confinement and medical furlough, through excessive delay. Ragsdale Decl. ¶¶ 8-11. Mr. Ragsdale is 56 years old and has a long-term chest infection, diabetes, Hepatitis C, and MRSA. Id. ¶¶ 4-7. He is classified as “community” level supervision, which means he is allowed to work in the community. Id. ¶ 8. He is nearly done with a four-year sentence for drug trafficking, with a release date in approximately two months, on July 17, 2020. Id. ¶ 1. Mr. Ragsdale first completed the application for home confinement more than a month ago, but received no response for weeks on end. Id. ¶¶ 9-10. The
2 Specifically, DOC denied home confinement for Mr. Denbow because, almost seven years ago, Mr. Denbow was found noncompliant with conditions for a prior home confinement, during which he was supposed to attend school. Denbow Decl. ¶ 11. Mr. Denbow attempted to explain that he had a doctor’s note for leaving school (including for symptoms that would later be diagnosed as cancer). In any event, even in normal times, a prior unsuccessful attempt at home confinement is not an automatically disqualifying factor, see DOC Policy 27.02(VI)(D)(10), and these are far from normal times. DOC provided no reason for believing that 2013 incident outweighed the mortal threat to Mr. Denbow from continued incarceration.
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person responsible for reviewing the requests was out sick for two weeks and nobody else was assigned to review the requests. Only after his attorney sent a demand letter did anyone complete preliminary processing of Mr. Ragsdale’s request. Even then, the request remained under review, and DOC warned that “[t]here is no guarantee that [this] application will be processed immediately” and that “[a]t this time very limited home investigations are being done.” Id. ¶ 10. According to DOC, “If [the application] is not [processed] now, it will be done when normal operations resume.” Id. To state the obvious, delaying Mr. Ragsdale’s request until “normal operations resume” would defeat the purpose of a request based on the COVID-19 pandemic.
ARGUMENT I. This Action is Properly Brought Pursuant to Section 2241
As a threshold matter, Section 2241 authorizes courts to grant habeas corpus relief where a person is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(b)(3). Habeas corpus is the appropriate remedy when a petitioner challenges “the fact or duration of his confinement” or seeks a “quantum change” to a less restrictive form of custody. Gonzalez-Fuentes v. Molina, 607 F.3d 864, 873 (1st Cir. 2010) (citing, e.g., Wilkinson v. Dotson, 544 U.S. 74, 78 (2005)); Dickerson v. Walsh, 750 F.2d 150, 152 (1st Cir. 1984)). In this case, Petitioners and Class Members challenge the fact of their confinement, which, they allege, has “become unconstitutional because of the COVID-19 pandemic risk.” McPherson v. Lamont, No. 3:20CV534, 2020 WL 2198279, at *4 (D. Conn. May 6, 2020) (exercising jurisdiction over a section 2241 habeas petition challenging unlawful confinement during the COVID-19 pandemic) (citing cases). In such cases, the habeas remedy applies even if the alleged violation arises from unlawful conditions of confinement. See Brennan v. Cunningham, 813 F.2d 1, 4 (1st Cir. 1987) (allowing habeas petition from a state prisoner seeking reinstatement in a work release program,
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even accepting that the petition challenged conditions of confinement); see also United States v. Orton, No. 1:12-CR-00117-JAW, 2020 WL 1672782, at *5 (D. Me. Apr. 6, 2020) (stating that a section 2241 petition “provides a remedy in the custodial court for federal prisoners challenging the execution of their sentences, such as administration of parole, prison disciplinary proceedings, or conditions of confinement”) (internal citation and quotation marks omitted).
Although section 2241 incorporates a prudential exhaustion requirement, that requirement does not apply when, as here, the state remedy would be futile and the petitioner is likely to suffer an irreparable injury without immediate judicial relief. Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003), as amended (July 24, 2003). “[E]xhaustion of remedies is not a jurisdictional prerequisite to a habeas petition, but, rather, a gatekeeping provision rooted in concepts of federalism and comity.” Allen v. Attorney Gen. of State of Me., 80 F.3d 569, 573 (1st Cir. 1996).3 In light of the unprecedented crisis presented by the COVID-19 pandemic, emergency class relief is essential to rectify ongoing constitutional and statutory violations and to “promot[e] efficiency, consistency, and fairness, and improv[e] access to legal and expert assistance by parties with limited resources.” See, e.g., Monk v. Shulkin, 855 F.3d 1312, 1320–21 (Fed. Cir. 2017) (articulating benefits of the class procedure). It would be futile to seek such emergency relief in state court, where Mr. Denbow’s individual petition for post-conviction review has languished without a hearing for five weeks, ECF No. 1-2; and where Maine criminal procedure requires singular treatment of post-conviction review (PCR) cases, and does not authorize class treatment. See M.R. Crim. P. 67(b) (requiring that a single petition may attack only a single proceeding);
3 Consistent with this principle, “[t]he law . . . should not require litigants to engage in empty gestures or to perform obviously futile acts.” Allen, 80 F.3d at 573. A state corrective process may be futile when it “is so clearly deficient as to render futile any effort to obtain relief.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981).
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M.R. Civ. P. 23 (providing for class actions in civil actions, not criminal actions like PCRs). II. Injunctive Relief Is Necessary to Protect Putative Class Members from Risk of
Serious Illness or Death All injunctive factors weigh in favor of granting the requested class relief. See Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008). As discussed below, Petitioners and others like them will face irreparable harm absent court intervention, and are likely to succeed on the merits of their statutory and constitutional claims. The balance of hardships, as well as the public interest, strongly favor the issuance of injunctive relief. A. Petitioners and Others Like Them Face Irreparable Harm from Continued
Incarceration in DOC Facilities Irreparable injury is harm that “cannot adequately be compensated for either by a laterissued permanent injunction, after a full adjudication on the merits, or by a later-issued damages remedy.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005). An increased risk of serious illness and death constitutes irreparable injury. See, e.g., Smith, 376 F. Supp. 3d at 161, aff’d, 922 F.3d 41 (1st Cir. 2019).4 Absent injunctive relief, Class Members face an increased risk of infection, serious illness, and death from COVID-19. Years ago, Mr. Denbow’s three-month-old daughter died from a respiratory virus after he unsuccessfully sought care at a local hospital; as a result, he knows all too well how deadly respiratory viruses can be. Denbow Decl. ¶ 13. With each day that passes, Petitioners and Class Members remain susceptible to infection by one of the hundreds of prison staff who move in and out of DOC facilities on a
4 Numerous federal courts have found the specific threats posed by the COVID-19 pandemic to detained persons constitute irreparable injury. See, e.g., Castillo v. Barr, No. CV 2000605, at *5-6 (C.D. Cal. Mar. 27, 2020) (finding detained petitioners established irreparable harm stemming from risk of exposure to COVID-19); Coronel v. Decker, 20-cv-2472, 2020 WL 1487274, at *3 (S.D.N.Y. Mar. 27, 2020) (finding that petitioners with “serious underlying medical conditions . . . face a risk of severe, irreparable harm if they contract COVID-19”); Basank v. Decker, No. 20 Civ. 2518, 2020 WL 1481503, at *4 (S.D.N.Y. Mar. 26, 2020) (same).
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daily basis. Once the virus infiltrates the prisons, Petitioners and Class Members face a high risk of infection, serious illness, and death due to impossibility of physical distancing and the absence of other protective measures. No amount of money could make Petitioners or Class Members whole if they suffer illness or die a preventable death while in custody.
B. Petitioners and Class Members Are Likely to Succeed on the Merits of their Claims
Petitioners and Class Members are likely to prevail on their arguments that DOC’s policies and practices violate the Eighth Amendment to the U.S. Constitution and federal disability rights laws. See U.S. Const. Amend. VIII; 42 U.S.C. §12132 (Americans with Disabilities Act (ADA)); 29 U.S.C. § 794 (Rehabilitation Act). Physical distancing is medically necessary preventive care for Class Members—who face elevated risks of serious illness or death from COVID-19—yet Respondents do not allow physical distancing in the facility, and have refused readily available prison services (such as medical furlough or community release) that would enable Class Members to safely distance in the community. By refusing to ensure physical distancing for vulnerable Class Members, Respondents have acted with deliberate indifference to the medical needs of people in their custody, in violation of the Eighth Amendment. And by categorically excluding Class Members with disabilities from necessary and reasonable accommodations, Respondents have also discriminated by reason of disability in violation of the ADA and Rehabilitation Act.
1. The Class Members Are Likely to Succeed on their Claim that Respondents Have Violated the Eighth Amendment
Petitioners and Class Members are likely to succeed on the merits of their Eighth Amendment claim that DOC’s refusal to allow physical distancing for medically vulnerable persons violates the Eighth Amendment. Under the Eighth Amendment, the Government has an affirmative duty to provide for the “basic human needs” of those in its custody—including
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“medical care . . . and reasonable safety.” DeShaney v. Winnebago Cty. Dep’t Soc. Servs., 489 U.S. 189, 199-200 (1989) (citing Estelle v. Gamble, 429 U.S. 97, 103–104 (1976); Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982)). “[T]o prove an Eighth Amendment violation, a prisoner must satisfy two prongs: (1) an objective prong that requires proof of a serious medical need, and (2) a subjective prong that mandates a showing of prison administrators’ deliberate indifference to that need.” Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014).
Under the objective prong, the risk of infection with COVID-19 represents a serious medical need for all prisoners, but especially for Petitioners and Class Members who are medically vulnerable to serious illness or death from the virus. As another court recently explained, “[f]or infected inmates, the virus can lead to pneumonia,” and “[i]n the worse pneumonia cases, COVID-19 victims suffer diminishing oxygen absorption, with resulting organ failure,” and victims “chok[ing] to death.” Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882, at *8 (N.D. Ohio Apr. 22, 2020). “While not every inmate who contracts the virus will die, [medically vulnerable prisoners] are at a much greater risk of doing so.” Id. “They have a very serious medical need to be protected from the virus.” Id.; see also Parrish Decl. ¶¶ 8-9; Goldenson Decl. ¶¶ 27, 39.5
Under the second prong, DOC and Commissioner Liberty are deliberately indifferent to the “‘obvious’” threat posed by COVID-19 to “elderly individuals [and] those with certain preexisting medical conditions.” See Martinez-Brooks, 2020 WL 2405350, at *21 (quoting Farmer, 511 U.S. at 842). In one recent case, the court held that a prison exhibited deliberate
5 That Petitioners and Class Members are not yet infected with the virus does not lessen the objectively serious nature of their medical needs. A prisoner “does not have to await the consummation of a threatened injury” or “await a tragic event” to obtain injunctive relief. Farmer, 511 U.S. at 845 (citations and internal quotation marks omitted).
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indifference to the risk of infection and potential death from COVID-19 by performing insufficient testing and failing to keep prisoners “at least six feet apart despite clear CDC guidance.” Wilson, 2020 WL 1940882 at *8. Likewise here, Respondents have refused to implement adequate physical distancing, provide alcohol-based hand sanitizer, or ensure meaningful testing despite knowing that all are critical to protecting Class Members’ health and preventing the spread of disease. See supra pp. 3-7.
Further compounding the constitutional harm, DOC has refused to transfer Class Members to a location where physical distancing is possible. In Martinez-Brooks, the Court held that a prison likely violated the Eighth Amendment for refusing “to transfer medically vulnerable prisoners . . . to home confinement ‘in any meaningful numbers,’” despite having the authority to do so and knowing that such transfer was necessary to protect medically vulnerable prisoners. MartinezBrooks, 2020 WL 2405350, at *22-*23. The court determined that the Bureau of Prison officials were deliberately indifferent by implementing their release authority in a “slow and inflexible” fashion that “evidence[d] a disregard for the seriousness of the health risk faced by vulnerable inmates.” Id.
Likewise here, the impossibility of physical distancing in DOC facilities means that transfer to the community is “the only viable measure by which the safety of highly vulnerable inmates can be reasonably assured.” Martinez-Brooks, 2020 WL 2405350, at *23. Yet DOC has refused to use its authority to transfer medically vulnerable prisoners to the community through medical furlough. 34-A M.R.S. § 3035(2)(C). Specifically, DOC may grant furlough “for the obtaining of medical services for a period longer than 10 days if medically required.” 34-A M.R.S. § 3035(2)(C). By policy, medical furlough is available to prisoners in community custody “to obtain necessary medical services,” and for other prisoners when necessary for life-
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saving care. DOC Policy 27.04(VI)(H). Yet DOC has outright refused to provide medical furlough during the deadly COVID-19 pandemic. According to the Director of Classification, “[t]he department is not utilizing the medical furlough to release clients during the COVID-19 pandemic.” Sideris Decl., Exh. B.
Similarly, DOC’s slow and inflexible implementation of its home confinement authority is deliberately indifferent to the rights of Class Members. Community release is a rehabilitative service offered to prisoners to facilitate safe and healthy return to the community. See 34-A M.R.S. § 3036-A (providing for the Supervised Community Confinement Program). This service is particularly necessary for medically vulnerable Class Members who, absent the ability to physically distance in the community, are exposed to a heightened risk of serious illness or death and the risk that they will never be released at all. See Goldenson Decl.¶¶ 43-44; Parrish Decl.¶¶ 35-36. Yet DOC has applied stricter-than-usual criteria for home confinement during COVID-19—adding many new technical requirements on top of the statutory criteria.6 As in Martinez-Brooks, these criteria are “unrelated to medical vulnerability and, at best, only tangentially related to public safety.” 2020 WL 2405350, at *22. Even worse, there is reason to believe that having a medical condition is being treated as a “minus” factor for home confinement consideration, with DOC (wrongly) insisting that medically vulnerable prisoners would face heightened risk outside the prison setting. See, e.g., DOC Resp. Denbow at A40, ECF No. 1-2; DOC Resp. Ragsdale at 2, ECF No. 1-5; see also Denbow Decl. ¶¶ 9-14 (describing challenges in
6 Additional non-statutory criteria include having a release date in less than one year (even though the statute allows for default of 18 months) and classification as community custody (even though this is not a statutory requirement). See Daily Dashboard, available at https://bit.ly/3fRsJmQ; see also Megan Gray, Maine prisons pressured to release more inmates, and information, during pandemic, Portland Press Herald (May 3, 2020), https://bit.ly/2WYPeNT (stating “the department has prioritized cases by using an even stricter set of criteria than usual”) (emphasis added).
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accessing home confinement); Ragsdale Decl. ¶¶ 8-11 (same). As one prison case worker recently explained to Mr. Denbow, “there’s nobody being released because of medical conditions, so you can get that idea right out of your head.” Denbow Decl. ¶ 13.
Considering these actions together, it is evident that DOC has the tools that it needs to enable physical distancing for medically vulnerable individuals, yet has refused to do so, thereby exposing Class Members to a heightened risk of serious illness or death. “[B]y failing to make meaningful use of [release] authority, [DOC] has failed to implement what appears to be the sole measure capable of adequately protecting vulnerable inmates . . . in favor of measures that, even if they were fully and painstakingly implemented, would still leave vulnerable inmates subject to a grave risk to their health.” See Martinez-Brooks, 2020 WL 2405350, at *23. That is textbook deliberate indifference in violation of the Eighth Amendment.
2. Members of the Subclass with Disabilities Are Likely to Succeed on the Merits of their Claims under Federal Disability Rights Laws
Petitioners also seek to represent a subclass of prisoners who are medically vulnerable because of disabilities that are protected under federal law (the “Disability Subclass”). Petitioners and members of the Disability Subclass are likely to succeed in showing that DOC is engaging in unlawful discrimination under the ADA and Rehabilitation Act by refusing to provide reasonable accommodation—specifically, medical furlough, home confinement, or similar relief—to protect them against the elevated risk of serious illness or death from COVID-19.
The ADA and Rehabilitation Act prohibit a “public entity” from discriminating against a qualified individual with a disability on the basis of that disability. 42 U.S.C. § 12132; 29 U.S.C. § 794(a). As an instrumentality of state government, Maine’s prisons qualify as a “public entit[y].” 42 U.S.C. § 12131(1)(B); Pa. Dep’t of Corrections v. Yeskey, 524 U.S. 206, 210 (1998). To state a claim against a public entity under these laws, a person must allege: “(1) that he is a qualified
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individual with a disability; (2) that he was either excluded from participation in or denied the benefits of some public entity’s services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability.” Buchanan v. Maine, 469 F.3d 158, 170–71 (1st Cir. 2006) (quoting Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000)). Each of those elements is satisfied here.
a. Petitioners and Members of the Subclass Are Qualified Individuals with Disabilities
Members of the Disability Subclass have medical conditions that place them at heightened risk of serious illness or death from COVID-19. “Disability” is defined broadly, to include, inter alia, a “physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). “Major life activities” is itself broadly defined, and includes “the operation of a major bodily function,” such as “functions of the immune system, normal cell growth . . . neurological, brain, respiratory, circulatory, [or] endocrine” systems. 42 U.S.C. § 12102(2)(B).
Members in the Disability Subclass have pre-existing medical conditions that increase risk for COVID-19 complications or death—including lung conditions, asthma, heart conditions, diabetes, kidney disease, liver disease, HIV, immune dysfunction, autoimmune disorders, cancer treatment, and history of organ or bone marrow transplantation—all of which are disabilities under federal disability rights laws.7 Individuals with these conditions remain “qualified” to participate in DOC programs and services, including provision of medical care, rehabilitative programs, and
7 Several conditions within the disability subclasses are expressly identified in regulations as presumptively covered disabilities. See, e.g., 28 C.F.R. § 35.108(d)(2)(iii). Regulations promulgated under the ADA must be given “controlling weight” unless they are arbitrary, capricious, or plainly contrary to the statute. See Kiman v. New Hampshire Dep’t of Corr., 451 F.3d 274, 283 n.8 (1st Cir. 2006) (internal citations omitted).
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other services during confinement to prepare for a safe return to society at the end of their sentence. See 42 U.S.C. § 12131(2); 28 C.F.R. § 35.104; 28 C.F.R. § Pt. 35, App. B (“[T]itle II applies to anything a public entity does”).
b. Subclass Members Are Excluded or Denied the Benefits of DOC’s Programs and Services by reason of their Disabilities
By refusing to allow Disability Subclass Members to perform physical distancing—in the prison, the community, or elsewhere—DOC excludes them from necessary medical care, rehabilitative programs, and other programs and services “by reason of” their disabilities. To avoid disability discrimination, public entities have an affirmative obligation to ensure that people with disabilities can participate in all of the entity’s programs, benefits, and services on an equal and equally safe basis as people without disabilities. 28 C.F.R. §§ 35.102(a), 35.130(a)-(b). This affirmative obligation stems from Congress’s concern that “‘[d]iscrimination against [people with disabilities] was . . . most often the product, not of invidious animus, but rather of thoughtlessness and indifference – of benign neglect[.]’” Pierce v. D.C., 128 F. Supp. 3d 250, 266 (D.D.C. 2015) (quoting Alexander v. Choate, 469 U.S. 287, 295 (1985)) (internal quotation marks omitted). Refusing to provide such affirmative accommodations qualifies as discrimination on the basis of disability. Nunes v. Mass. Dep’t of Correction, 766 F.3d 136, 145 (1st Cir. 2014) (citation omitted); see also 28 C.F.R. § 35.130(b)(3)(I) (prohibiting public entities from adopting policies that “have the effect” of discriminating against qualified individuals with disabilities).
One of the services that DOC provides to prisoners is necessary medical care. See, e.g., Farmer v. Brennan, 511 U.S. 825, 832 (1994); Helling v. McKinney, 509 U.S. 25, 31-32 (1993); 34-A M.R.S.A. §3031(2) (articulating the right to adequate professional medical and mental health care). If there were a vaccine or pharmaceutical treatment for COVID-19, DOC would be required to provide it to prisoners—even if it was costly to do so. See, e.g., Allah v. Thomas, 679 Fed. Appx.
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216 (3rd Cir. Feb. 13, 2017) (cost alone cannot justify prison’s refusal to provide allegedly “costprohibitive” Hepatitis C medication). Although physical distancing does not come in a vial or a pill box, it is no less medically necessary for members of the Disability Subclass—especially due to the absence of a vaccine or any effective treatment for the virus. Because physical distancing is necessary preventive care that DOC has made unavailable to members, members of the Disability Subclass are denied the benefits of basic DOC programs and services.
Not only are they denied necessary preventive care (namely, physical distancing), but this deprivation also denies Disability Subclass Members the ability to participate on an equal basis in other prison programming and services. Even traveling to get medical care (whether MAT or insulin treatment) exposes members of the Disability Subclass to the risk of particularly close contact with others, and a resulting heightened risk of serious illness or death. Denbow Decl. ¶ 22(d); Ragsdale Decl. ¶ 19(h), (k). Forcing members of the Disability Subclass to choose between obtaining medical treatment and staying alone in their cell is no choice at all.
Finally, DOC has also excluded members of the Disability Subclass from available medical services and rehabilitative programs—namely, medical furlough and home confinement. Release to the community is a reasonable and necessary accommodation for many members of the Disability Subclass, who require space to physically distance and protect themselves from the virus. Supra p. 14. By categorically making medical furlough unavailable during the pandemic, DOC discriminates against members of the Disability Subclass who require life-saving preventive care (physical distancing) that is only available outside of the prison. And by applying stricterthan-usual standards for home confinement during the pandemic and by failing to process applications in a reasonable timeframe, DOC discriminates against Subclass Members with
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disabilities who are at heightened risk from the pandemic. See supra p. 15 & n.6. In short, DOC has denied access to necessary treatments and programs in violation of disability rights laws.
C. The Equities and Public Interest Weigh in Favor of Granting Injunctive Relief The remaining equitable factors also require injunctive relief. The balancing of the equities favors Petitioners and Class Members, who face a heightened risk of serious and potentially permanent illness or death without injunctive relief. Respondents, by contrast, are simply being asked to ensure necessary care that they are constitutionally and statutorily obligated to provide. Refusing injunctive relief, moreover, would risk greater community spread of COVID19—among prisoners, prison staff, and the broader community—a result the State has taken other extraordinary steps to avoid. See generally Langhauser Decl., Cavalry Chapel of Bangor v. Mills, Docket No. 20-156-NT, ECF No. 21 (May 8, 2020) (emphasizing that risks of “community spread” from in-person religious gatherings of more than 10 people “threatens unnecessarily the health and lives of Maine citizens and, if not contained, the stability of the State’s first-responder and health care systems”). The same risks are even more prevalent in prisons, in which people are held in closed and crowded settings and in which prison staff travel to and from the facility each day, as potential vectors of the disease. See also Cavalry Chapel of Bangor v. Mills, 2020 WL 2310913, at *10 (weighing the harm of community spread).
CONCLUSION For these reasons, Petitioners and Class Members respectfully request that the Court grant expedited relief as detailed above, supra pp. 2–3, to protect Class Members and to enable physical distancing during the pandemic.
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Dated May 18, 2020

Respectfully Submitted,
/s/ Emma E. Bond Emma E. Bond, Esq. Zachary L. Heiden, Eq. American Civil Liberties Union of Maine Foundation P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 ebond@aclumaine.org (207) 619-6224 heiden@aclumaine.org
Moe Keshavarzi* Robert Sturgeon* Alex Kuljis* Sheppard Mullin Richter & Hampton LLP 333 South Hope Street, 43rd Floor Los Angeles, CA 90071-1422 213.617.5544 MKeshavarzi@sheppardmullin.com 213-617-5435 RSturgeon@sheppardmullin.com 213-617-4239 AKuljis@sheppardmullin.com
Jodi Nofsinger Miriam Johnson Taylor Asen Berman and Simmons 129 Lisbon Street Lewiston, Maine 04240 jnofsinger@bermansimmons.com (207) 784-7699 mjohnson@bermansimmons.com (207) 784-3576 tasen@bermansimmons.com
Attorneys for Petitioners and Proposed Class
* pro hac vice application pending

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CERTIFICATE OF SERVICE The undersigned certifies that she has electronically filed this date the foregoing CLASS MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION, WITH INCORPORATED MEMORANDUM OF LAW with the Clerk of the Court using the CM/ECF system, and by sending a copy via electronic mail to Jill O’Brien, Assistant Attorney General, Jill.Obrien@maine.gov. This filing is available for viewing and downloading from the ECF system.

Dated: May 18, 2020

/s/ Emma E. Bond Emma E. Bond American Civil Liberties Union of Maine Foundation P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 ebond@aclumaine.org
Counsel for Petitioners

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,
Petitioners, v.

Case No. ____________
Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief

MAINE DEPARTMENT OF CORRECTIONS and RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity,

Class Action Complaint IMMEDIATE RELIEF SOUGHT

Respondents.

INTRODUCTION 1. COVID-19 is a deadly virus that disproportionately sickens and kills medically vulnerable
people housed in closed congregate settings like cruise ships, nursing homes, and prisons.1 As Maine’s Governor’s Chief Legal Counsel recently explained to this Court, “indoor settings where a large number of people sit stagnant, remain in close proximity to one another, breathe the same air, touch common personal and fixed property, and remain there for an extended period of time present an especially dangerous environment for community spread, particularly for persons who are elderly or who have certain compromising medical

1 John M. Barry, The Single Most Important Lesson from the 1918 Influenza, New York Times (March 17, 2020), https://cutt.ly/PtQ5uAZ (Opinion piece by author of “The Great Influenza: The Story of the Deadliest Pandemic in History,” noting comparison between current COVID-19 outbreak and the 1918 influenza outbreak widely considered one of the worst pandemics in history).
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conditions.”2 Although this statement was originally made in support of the government’s
restriction on in-person religious gatherings, it applies with even greater force to Maine’s
prisons, where people (including many who are medically vulnerable) spend much of the
day in close contact with approximately 50 to 80 other prisoners and prison staff who
circulate to and from the community each day.
2. With no vaccine or known cure for the virus, physical distancing is critical and, for those
most vulnerable to the virus, it can be a matter of life or death. As explained by the Director
of the Maine Center for Disease Control and Prevention, “[p]hysical distancing is the best vaccine that we have.”3 For people who are particularly medically vulnerable to serious
illness or death from COVID-19—including those with underlying medical conditions
such as diabetes, heart disease, and lung disease—physical distancing is also a form of necessary preventative medical care.4 Other mitigation measures like frequent hand-
washing, use of alcohol-based hand-sanitizer, and widespread testing, are additional important preventative measure for everyone—and especially those at highest risk.5
2 Langhauser Decl., Calvary Chapel of Bangor v. Mills, Docket No. 20-cv-156-NT, ECF No. 21 (May 8, 2020). 3 Maine CDC briefing: April 1, 2020, https://www.youtube.com/watch?v=nX4ljxGU4VI (quote from Maine CDC Director Dr. Nirav Shah). 4 Social Distancing, U.S. Centers for Disease Control and Prevention (last accessed Apr. 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html; see also Parrish Decl. ¶ 35 (“To protect medically vulnerable individuals—as well as other individuals and staff—it is necessary to be able to engage in adequate physical distancing at all times”). 5 Parrish Decl. ¶¶ 25–28, 30; see also Hand Hygiene in COVID-19, U.S. Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/hand-hygiene.html (last visited May 9, 2020); Emily Mosites, Assessment of SARS-CoV-2 Infection Prevalence in Homeless Shelters – Four U.S. Cities, March 27-April 15, 2020, U.S. Centers for Disease Control and Prevention (May 1, 2020), https://bit.ly/3dKZHmY (acknowledging widespread
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3. There can be no dispute that, if there was a vaccine or a pharmaceutical treatment for
COVID-19, the prison would be obliged to provide it to prisoners—even if providing the
treatment would be costly or inconvenient.6 But no vaccine or treatment is available.
Instead, for medically vulnerable people who are mostly likely to face serious illness and
death from the virus, prevention is the most important type of care. Indeed, there is
consensus among medical experts that physical distancing is critical for individuals at high
risk of serious illness or death from COVID-19, like the Petitioners and proposed Class
Members.7
4. Yet, despite encouraging and even requiring these mitigation measures for the vast majority
of people,8 the State of Maine fails to ensure that such preventative treatment is available
to prisoners, and, to the contrary, prevents most prisoners from social distancing. Indeed,
positive yet asymptomatic cases of COVID-19 and concluding that “[t]esting all persons can facilitate isolation of those who are infected to minimize ongoing transmission in” homeless shelters, another closed congregate setting like prisons); Consideration for Use if Test-Based Strategies for Preventing SARS-CoV-2 Transmission in Nursing Homes, U.S. Centers for Disease Control and Prevention (last visited May 9, 2020), https://www.cdc.gov/coronavirus/2019ncov/hcp/nursing-homes-testing.html (recommending widespread testing and retesting in nursing homes, another closed congregate setting with many medically vulnerable individuals). The Maine CDC states that people at higher risk of serious illness should “limit close contact with others,” “avoid crowds,” and “practice social distancing.” Coronavirus (COVID-19) Frequently Asked Questions, Maine CDC (May 6, 2020), https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/documents/PublicCOVID19-FAQ-6May2020.pdf 6 See, e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976); Abu-Jamal v. Wetzel, No. 3:16-CV-2000, 2017 WL 34700, at *18 (M.D. Pa. Jan. 3, 2017) (prisons cannot “deliberately den[y] providing treatment to inmates with a serious medical condition and chosen a course of monitoring instead”). 7 Parrish Decl. ¶¶ 34-36. 8 Cavalry Chapel of Bangor v. Mills, No. 1:20-CV-00156-NT, 2020 WL 2310913, at *3-*4 (D. Me. May 9, 2020) (listing state-imposed restrictions and stay-at-home mandates).
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the prison setting makes social distancing all but impossible, prohibits access to alcoholbased hand-sanitizer, and limits necessary medical care to manage underlying medical conditions.9 5. Maine’s Department of Correction (“DOC”) also refuses to provide medical furlough or rehabilitative services to Petitioners and Class Members, even when necessary to enable them to physically distance and protect themselves from infection. For example, although DOC provides medical furlough for other types of care that is available only outside the prison setting,10 DOC has refused to grant any medical furloughs to enable medically vulnerable prisoners to physically distance during COVID-19.11 6. Similarly, DOC has applied stricter-than-usual criteria for community confinement— adding many new technical requirements on top of the statutory criteria. Under these criteria, DOC has refused to grant community confinement to medically vulnerable prisoners who have an imminent release date, who are classified as “minimum” or “community” security, and who (absent COVID-19 restrictions) would be allowed to work in the community.12 As one prison case worker recently candidly and bluntly told
9 See, e.g., Am. Compl., Loisel v. Clinton, Docket No. 19-cv-00081-NT, ECF No. 26 (June 26, 2019) (alleging violation of the Eighth Amendment and Americans with Disabilities Act on behalf of a proposed class for failure to provide treatment for Hepatitis C); see also id. at ¶ 46 (alleging that medication for Hepatitis C that is withheld from many prisoners is available to MaineCare beneficiaries diagnosed with chronic HCV). 10 34-A M.R.S. § 3035(C)(2); DOC Policy 27.04 (available at https://www.maine.gov/corrections/PublicInterest/policies.shtml, click on Policy 27.04). 11 Sideris Decl., Att. B (email from DOC Classification Director stating that “[t]he department is not utilizing the medical furlough to release clients during the COVID19 pandemic”). 12 See, e.g., Debow Decl. ¶¶ 9-14; Ragsdale Decl. ¶¶ 8-11.
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one of the Petitioners, , “there’s nobody being released because of medical conditions, so you can get that idea right out of your head.”13 7. Petitioners Joseph Denbow and Sean Ragsdale are medically vulnerable prisoners forced to live in crowded settings where they are exposed to close contact with dozens of other prisoners and staff every day—any of whom could be carriers of the COVID-19 infection. Not only does DOC require Petitioners to live in crowded settings—in which physical distancing is impossible—but it also denies them access to alcohol-based hand sanitizer and provides for hand-washing only in a communal bathroom shared with approximately fifty other prisoners. Despite the heightened risks posed by such settings, DOC has tested only two prisoners (out of 340) in the Mountain View Correctional Facility, where Petitioners are housed.14 8. The combination of crowded settings, poor hygiene, and the absence of adequate testing in DOC facilities means that the virus could be rapidly spreading undetected throughout the prisons at this very moment. This is not just a hypothetical risk. The outbreaks in correctional facilities around the country,15 illustrate that the risk of harm posed to prisoners, prison staff, and the entire community is real, concrete and imminent.16
13 Denbow Decl. ¶ 13. 14 Maine DOC Daily Dashboard (May 11, 2020), https://www.maine.gov/corrections/home/MDOC%20COVID19%20Web%20Dashboard%20511-2020.pdf. 15 Sam Kelly, 134 inmates at Cook County Jail confirmed positive for COVID-19, CHICAGO SUN-TIMES (Mar. 30, 2020). https://cutt.ly/6tYTqi5. 16 The State recently emphasized the risks of “community spread” from in-person religious gatherings of more than 10 people, stating that holding such gatherings in violation of the statewide order “subjects all persons attending such gatherings to an avoidable risk of community spread; and that this risk in turn threatens unnecessarily the health and lives of Maine
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9. To protect against this imminent risk of serious illness and death, Petitioners bring this action on behalf of themselves and all similarly situated medically vulnerable prisoners incarcerated by the Maine Department of Corrections. Medically vulnerable prisoners include prisoners over 55 or those with underlying health conditions, such as asthma, diabetes, and heart disease.17 Petitioners also seek to represent the following three subclasses of similarly situated persons: (1) medically vulnerable prisoners with an earliest release date within one year (the earliest date by which a vaccine may be expected)18, (2) medically vulnerable prisoners classified as minimum risk or community custody, and (3) prisoners who are medically vulnerable because of conditions that are protected under federal disability rights laws. This lawsuit seeks emergency class relief to protect vulnerable class members before it is too late. If the Court does not immediately grant requested relief—including ordering the Department to provide necessary information and a safe release plan—Petitioners request an expedited hearing. Given the rapid spread of this highly contagious virus, time is of the essence.19
citizens and, if not contained, the stability of the State’s first-responder and health care systems.” Langhauser Decl., Cavalry Chapel of Bangor v. Mills, Docket No. 20-156-NT, ECF No. 21 (May 8, 2020). The same risks are even more present in prisons, in which people are in closed and crowded settings—not just for a couple of hours once a week—but all day, every day, and in which prison staff travel to and from the facility each day, as potential vectors of the disease. 17 Goldenson Decl. ¶ 39. 18 Declaration of Dr. Nirav Shah, Cavalry Chapel of Bangor v. Mills, Docket No. 20-cv-156-NT, ECF No. 20 (May 8, 2020). 19 See, e.g., COVID-19 Dashboard by the Center for Systems Science and Engineering at Johns Hopkins University, Coronavirus Resource Center, available at https://coronavirus.jhu.edu/map.html; Kevin Miller, Three more deaths, 50 new COVID-19 cases reported in Maine, Portland Press Herald (May 14, 2020), https://www.pressherald.com/2020/05/14/three-more-deaths-50-new-covid-19-cases-reported-in-
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I. JURISDICTION AND VENUE 10. Petitioners bring this putative class action pursuant to 22 U.S.C. § 2241 for relief from
incarceration that violates their Eighth Amendment rights under the U.S. Constitution, and that violates the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., and the Rehabilitation Act, 29 U.S.C. § 794. 11. This Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 2241 (habeas corpus), 28 U.S.C. § 1651 (All Writs Act), and Article I, § 9, cl. 2 of the U.S. Constitution (Suspension Clause) / 28 U.S.C. § 1331 (federal question jurisdiction). 12. Venue is proper in this judicial district pursuant to 28 U.S.C. § 2241(d) because the Petitioners and all other class members are in custody in this judicial district and venue. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to Petitioners’ claims occurred in this district.
II. PARTIES 13. Petitioner Sean R. Ragsdale is incarcerated in Mountain View Correctional Facility. He is
56 years old. He is at high risk for serious illness or death from COVID-19 because he has a long-term chest infection, diabetes, and Hepatitis C, which has caused him liver damage. Mr. Ragsdale uses an inhaler in order to breathe normally, takes insulin twice a day, and as a result of his disabilities has been given work restrictions by doctors to not stand on his feet for prolonged periods of time or do strenuous activity. Medication for Hepatitis C is medically indicated to treat Mr. Ragsdale’s condition and prevent further liver disease, but
maine/ (referencing Maine’s “rising cases numbers” which Maine’s CDC director called “concerning”).
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DOC has not provided that medication. Although payments have been suspended while he is in prison, he receives Social Security income (SSI) for his disabilities. He was convicted of two counts of aggravated trafficking of drugs and has completed most of his sentence of imprisonment, with a planned release date in approximately two months, on July 17, 2020. He is currently classified as “community” custody, meaning that, but for the current COVID-19 restrictions, he would be approved to work in the community during the day. Mr. Ragsdale is an individual with a disability for purposes of the ADA and the Rehabilitation Act. 14. Petitioner Joseph A. Denbow is incarcerated in Mountain View Correctional Facility. He is 54 years old. He is at high risk for serious illness or death from COVID-19 because he suffers from asthma, chronic obstructive pulmonary disease (COPD) and is in remission from colorectal cancer. He is incarcerated for driving without a license and aggravated forgery, for initially giving the traffic officer his brother’s name instead of his own. He has completed most of his two-year prison sentence, with an earliest release date of August 30, 2020. He is currently classified as “minimum” security and, before the current COVID-19 restrictions, worked in the community doing odd-jobs like sheet rocking and painting, and would return to the facility at night. Mr. Denbow is an individual with a disability for purposes of the ADA and the Rehabilitation Act. 15. Respondent Randall A. Liberty is the Commissioner of the Maine Department of Corrections. In that role, he has “general supervision, management and control of the research and planning, grounds, buildings, property, officers, employees and clients of any correctional facility, detention facility or correctional program.” 34-A M.R.S. § 1402(1). Commissioner Liberty is sued in his official capacity.
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16. Respondent Maine DOC is “responsible for the direction and general administrative supervision, guidance and planning of adult and juvenile correctional facilities and programs within the State.” 34-M.R.S. §1202.
III. FACTUAL ALLEGATIONS COVID-19 Poses a Significant Risk of Illness, Injury, or Death 17. The novel coronavirus that causes COVID-19 has led to a global pandemic.20 As of May 15, 2020, at 8 AM, there were 4,444,670 reported COVID-19 cases throughout the world21 In the United States alone, the Centers for Disease Control and Prevention (“CDC”) reports 1,384,930 cases and 83,947 deaths as of May 14, 2020.22 As of May 14, 2020, Maine has had 1,405 coronavirus cases and seen 207 hospitalizations and 69 deaths as a result of the virus.23 All these numbers are likely underestimates because of limited availability of testing.24 18. Projections indicate that as many as 240,000 people in the U.S. will die from COVID-19, accounting for existing interventions.25
20 Betsy McKay et al., Coronavirus Declared Pandemic by World Health Organization, WALL ST. J. (Mar. 11, 2020, 11:59 PM), https://cutt.ly/UtEuSLC. 21 Johns Hopkins University COVID-19 Case Tracker, available at https://coronavirus.jhu.edu/, last accessed May 15, 2020; John Hopkins University COVID-19 Dashboard, available at https://coronavirus.jhu.edu/map.html, last accessed May 8, 2020. 22 COVID-19 Tracker, U.S. Centers for Disease Control and Prevention, https://www.cdc.gov/covid-data-tracker/index.html (last accessed May 14, 2020) 23 https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus.shtml (last accessed May 14, 2020) 24 Goldenson Decl. ¶ 13. 25 Rick Noack, et al., White House Task Force Projects 100,000 to 240,000 Deaths in U.S., Even With Mitigation Efforts, Wash. Post. (April 1, 2020, 12:02 a.m.), https://cutt.ly/5tYT7uo.
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19. The virus is known to spread from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.26 There is no vaccine against COVID-19, and there is no known medication that is effective to prevent or treat it.27 Social distancing—deliberately keeping at least six feet of space between persons to avoid spreading illness28—and a vigilant hygiene regimen, including hand hygiene, are critical for protecting against transmission of COVID-19.29
20. These measures are particularly important because the coronavirus spreads aggressively, and people can spread it even if they do not feel sick or exhibit any symptoms.30 The only assured way to curb the pandemic is through dramatically reducing contact for all.31 Every American institution—from schools32 to places of worship,33 from businesses34 to
26 Centers for Disease Control and Prevention, Interim Infection Prevention and Control Recommendations for Patience with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings, https://cutt.ly/ztRAo0X. 27 Parrish Decl. ¶ 16; Goldenson Decl. ¶ 19. 28 Johns Hopkins University, Coronavirus, Social Distancing and Self-Quarantine, https://cutt.ly/VtYYiDG. 29 Goldenson Decl. ¶ 19; Parrish Decl. ¶ 16. 30 Goldenson Decl. ¶ 18; Parrish Decl. ¶¶ 20-23. 31 Harry Stevens, Why Outbreaks Like Coronavirus Spread Exponentially, and how to “Flatten the Curve,” Wash. Post. (March 14, 2020), https://cutt.ly/etYRnkz. 32 Centers for Disease Control, Interim Guidance for Administrators of US K-12 Schools and Child Care Programs, https://cutt.ly/ItRPq5n. 33 Centers for Disease Control, Interim Guidance for Administrators and Leaders of Communityand Faith-Based Organizations to Plan, Prepare, and Respond to Coronavirus Disease 2019 (COVID-19), https://cutt.ly/KtRPk1k. 34 Centers for Disease Control, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), https://cutt.ly/stRPvg4.
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legislatures35—has been exhorted to reduce the number of people in close quarters, if not empty entirely.36 They have also been told to undertake aggressive sanitation measures, such as cleaning and disinfecting all surfaces for exacting periods of time with products with particular alcohol contents, and closing off any areas used by a sick person.37 21. Once contracted, COVID-19 can cause severe damage to lung tissue, including a permanent loss of respiratory capacity, and it can damage tissues in other vital organs, such as the heart and liver.38 22. People over the age of 50 face a greater risk of serious illness or death from COVID-19.39 In a February 29, 2020 preliminary report, individuals age 50-59 had an overall mortality rate of 1.3%; 60-69-year-olds had an overall 3.6% mortality rate, and those 70-79 years old had an 8% mortality rate.40 23. 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, epilepsy, hypertension, compromised immune systems (such as from
35 Nat’l Conf. of State Legislatures, Coronavirus and State Legislatures in the News, https://cutt.ly/4tRPQne.a. 36 Cavalry Chapel of Bangor v. Mills, No. 1:20-CV-00156-NT, 2020 WL 2310913, at *3-*4 (D. Me. May 9, 2020) (listing state-imposed restrictions and stay-at-home mandates in Maine). 37 Centers for Disease Control, Cleaning and Disinfecting Your Facility, https://cutt.ly/atYE7F9. 38 Parrish Decl. ¶¶ 4-5; see also Centers for Disease Control, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://cutt.ly/etRPVRl 39 Xianxian Zhao, et al., Incidence, clinical characteristics and prognostic factor of patients with COVID-19: a systematic review and meta-analysis (March 20, 2020), https://cutt.ly/etRAkmt. 40 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://cutt.ly/ytEimUQ (data analysis based on WHO China Joint Mission Report).
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cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease),
inherited metabolic disorders, stroke, developmental delay, and asthma, also have an elevated risk.41 Early reports estimate that the mortality rate was 13.2% for those with
cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.42
24. In many people, COVID-19 causes fever, cough, and shortness of breath. However, many people in higher risk categories who develop serious illness will need advanced support.43
This requires highly specialized equipment like ventilators that are in limited supply, and an entire team of care providers, respiratory therapists, and intensive care physicians.44
25. In serious cases, COVID-19 causes acute respiratory disease syndrome, which is life-
threatening: even those who receive ideal medical care with ARDS have a 30% mortality rate.45 Even in non-ARDS cases, COVID-19 can severely damage lung tissue, which
41 Coronavirus disease (COVID-19) advice for the public: Myth busters, World Health Organization, https://cutt.ly/dtEiCyc (“Older people, and people with pre-existing medical conditions (such as asthma, diabetes, heart disease) appear to be more vulnerable to becoming severely ill with the virus.”). 42 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, https://cutt.ly/xtEokCt (finding fatality rates for patients with COVID-19 and co-morbid conditions to be: “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer”). 43 Goldenson Decl. ¶ 17; Parrish Decl. ¶ 29. 44 Parrish Decl. ¶ 29; see also Novel Coronavirus 2019 (COVID‑19), https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus.shtml#situation (listing the number of available ventilators and intensive care hospital beds in Maine). 45 Letter from Faculty at Johns Hopkins School of Medicine, School of Nursing, and Bloomberg School of Public Health to Hon. Larry Hogan, Gov. of Maryland, March 25, 2020, https://cutt.ly/stERiXk; see also Goldenson Decl. ¶ 11.
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requires an extensive period of rehabilitation, and in some cases, cause permanent loss of breathing capacity.46 COVID-19 may target the heart, causing cardiac complications up to and including heart failure.47 COVID-19 can also trigger an over-response of the immune system and result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury.48 26. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.49 27. According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.50 Patients who do not die from serious cases of COVID-19 may still face prolonged recovery periods, including extensive rehabilitation from neurologic damage, loss of digits, and loss of respiratory capacity.51 28. As of May 14, 2020, the United States leads the world in confirmed cases of COVID-19.52 As of May 14, 2020, Maine has had 1,565 confirmed coronavirus cases and seen 207
46 Parrish Decl. ¶ 5. 47 Parrish Decl. ¶ 5. 48 Id. 49 CDC, Interim Clinical Guidance, supra note 38. 50 Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, WALL ST. J. (Mar. 10, 2020, 12:49 PM), https://cutt.ly/itEmi8j. 51 Id. 52 Donald G. McNeil, Jr., The U.S. Now Leads the World in Confirmed Coronavirus Cases, New York Times (March 26, 2020), https://cutt.ly/QtQ7zz6.
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hospitalizations 69 deaths as a result of the virus.53 Many of the deaths attributed to the coronavirus happened in congregate care nursing facilities.54 There is no way to know when the number of daily cases will abate—on May 14, the State CDC Director acknowledged a “concerning” “increase of cases . . . over the past days.”55 The Dangers of COVID-19 Are Heightened in Prisons 29. The imperatives of social distancing and hygiene apply with special force to prisons, where the government controls almost entirely a person’s ability to avoid others and to maintain adequate sanitation. Persons who live or work in prisons face a particularly acute threat of illness, permanent injury, and death, beyond that faced by the general public.56 30. As another court has explained, “Prisons are tinderboxes for infectious disease. The question whether the government can protect inmates from COVID-19 is being answered every day, as outbreaks appear in new facilities.”57 For example, dramatic outbreaks have occurred in the Cook County Jail, Rikers Island in New York City, and multiple prisons in Ohio.58 In one Ohio prison, more than 80% of the approximately 2,500 prisoners tested
53 Novel Coronavirus 2019 (COVID-19), Maine CDC, https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus.shtml (last visited May 15, 2020). 54 Maine DHHS Press Release (Apr. 28, 2020), https://www.maine.gov/dhhs/pressrelease.shtml?id=2460746 (last visited May 15, 2020). 55 Kevin Miller, Three more deaths, 50 new COVID-19 cases reported in Maine, Portland Press Herald (May 14, 2020), https://www.pressherald.com/2020/05/14/three-more-deaths-50-newcovid-19-cases-reported-in-maine/. 56 Goldenson Decl. ¶¶ 39-40. 57 United States v. Rodriguez, No. 2:03-cr-0271, 2020 WL 1627331, (E.D. Pa., Apr. 1, 2020). 58 Goldenson Decl. ¶ 37 (citing sources).
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positive.59 Eight of the ten largest-known infections sources in the U.S. are associated with jails or prisons.60
31. People in congregate environments, which are places where people live, eat, and sleep in
close proximity, face increased danger of contracting COVID-19, as evidenced by the rapid spread of the virus in cruise ships61 and nursing homes.62 It is virtually impossible for
people in prisons to engage in the necessary social distancing and hygiene required to
mitigate the risk of transmission. High numbers of shared contact surfaces, limited access
to medical care, and high numbers of people with chronic, often untreated, illnesses living
in close proximity with each other exacerbate the dangers in correctional settings.
32. Correctional facilities house large groups of people together, and move people in groups to eat, recreate, and obtain medical care.63 They frequently have insufficient medical care for the population even outside times of crisis.64 Incarcerated people, rather than
59 Goldenson Decl. ¶ 37 (citing sources). 60 Goldenson Decl. ¶ 37. 61 See Parrish Decl. ¶¶ 10-12. The CDC is currently recommending that travelers defer cruise ship travel worldwide. “Cruise ship passengers are at increased risk of person-to-person spread of infectious diseases, including COVID-19.” COVID-19 and Cruise Ship Travel, Centers for Disease Control and Prevention, https://cutt.ly/7tEEQvT. 62 The CDC notes that long-term care facilities and nursing homes pose a particular risk because of “their congregate nature” and the residents served. Preparing for COVID-19: Long-term Care Facilities, Nursing Homes, Centers for Disease Control and Prevention, https://cutt.ly/7tEEITH. 63 See, e.g, Nathalie Baptiste, Correctional Facilities are the Perfect Incubators for the Coronavirus, (March 6, 2020), https://cutt.ly/GtRSi3e; Goldenson Decl. ¶¶ 26-28. 64 See, e.g., Steve Coll, the Jail Health-Care Crisis, The New Yorker (Feb. 25, 2019), https://cutt.ly/ftERHNg; see also Am. Compl., Loisel v. Clinton, Docket No. 1:19-cv-00081-NT, ECF No. 26 (June 26, 2019) (alleging inadequate medical care in the Maine Department of Corrections for prisoners with another infectious disease, Hepatitis C); Dan Neumann, Four fired nurses raise the alarm about Maine’s for-profit prison contractor, Beacon (Dec. 13, 2018),
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professional cleaners, are responsible for cleaning the facilities, with minimal supervision.65 33. Outbreaks of the flu regularly occur in jails and prisons, including an influenza outbreak in two prison facilities in Maine in 2011.66 During the H1N1 epidemic in 2009, jails and prisons dealt with a disproportionately high number of cases,67 including in the Cumberland County Jail, in Portland Maine.68 34. In addition to Dr. Parrish and Dr. Goldenson, whose declarations are attached to this petition, numerous public health experts, including Dr. Gregg Gonsalves,69 Ross
https://mainebeacon.com/four-fired-nurses-raise-the-alarm-about-maines-for-profit-prisoncontractor/. 65 See, e.g., Ragsdale Decl. ¶ 16; Denbow Decl. ¶ 19. Wendy Sawyer, How much do incarcerated people earn in each state?, Prison Policy Initiative, (April 10, 2017); https://cutt.ly/qtER2bh (noting that “custodial, maintenance, laundry” and “grounds keeping” are among the most common jobs for incarcerated people). 66 Influenza Outbreaks at Two Correctional Facilities – Maine, March 2011, Centers for Disease Control and Prevention (Apr. 6, 2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 67 See, e.g., Meyer Decl. at ¶ 19, Docket No. 20-cv-1803-AKH, ECF No. 42 (Mar. 16, 2020), https://drive.google.com/file/d/1rVxt85J-LCDLQLBMFDaNu49PczCdnLvs/view. This H1N1 “swine flu” pandemic outbreak spread dramatically in jails and prisons in 2010, but that strain of virus had a low fatality rate because of the characteristics of the virus—COVID-19’s fatality rate is far higher. David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few (Feb. 15, 2010), https://cutt.ly/ytRSkuX. 68 Swine Flu Spreads in Jail, Ellsworth American (June 9, 2009), https://www.ellsworthamerican.com/maine-news/health-news/swine-flu-spreads-in-jail/. 69 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, Connecticut Mirror (March 11, 2020), https://cutt.ly/BtRSxCF.
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MacDonald,70 Dr. Marc Stern,71 Dr. Oluwadamilola T. Oladeru and Adam Beckman,72 Dr. Anne Spaulding,73 Homer Venters,74 Jaimie Meyer,75 the faculty at Johns Hopkins schools of nursing, medicine, and public health,76 and Josiah Rich77 have all strongly cautioned
that people booked into and held in correctional settings are likely to face serious, even
grave, harm due to the outbreak of COVID-19.
35. Prisons are not hermetically sealed. By their nature, the people who go in—especially
correctional and medical staff—typically come out in very short order. Failing to prevent
and mitigate the spread of COVID-19 endangers not only those within the institution, but
the entire community. Hence, immediate and aggressive action is the only mitigation effort
70Craig McCarthy and Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ New York Post (March 19, 2020), https://cutt.ly/ptRSnVo. 71 Marc F. Stern, MD, MPH, Washington State Jails Coronavirus Management Suggestions in 3 “Buckets,” Washington Assoc. of Sheriffs & Police Chiefs (March 5, 2020), https://cutt.ly/EtRSm4R. 72 Oluwadamilola T. Oladeru, et al., What COVID-19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind, (March 10, 2020), https://cutt.ly/QtRSYNA. 73 Anne C. Spaulding, MD MPDH, Coronavirus COVID-19 and the Correctional Jail, Emory Center for the Health of Incarcerated Persons (March 9, 2020). 74 Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, Mother Jones (March 12, 2020), https://cutt.ly/jtRSPnk. 75 Meyer Decl., Docket No. 20-cv-1803-AKH, ECF No. 42 (Mar. 16, 2020), https://drive.google.com/file/d/1rVxt85J-LCDLQLBMFDaNu49PczCdnLvs/view. 76 Letter from Faculty at Johns Hopkins School of Medicine, School of Nursing, and Bloomberg School of Public Health to Hon. Larry Hogan, Gov. of Maryland, March 25, 2020, https://cutt.ly/stERiXk. 77 Amanda Holpuch, Calls Mount to Free Low-risk US Inmates to Curb Coronavirus Impact on Prisons, The Guardian (March 13, 2020 3:00 p.m.), https://cutt.ly/itRSDNH.
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that Respondents can undertake to comport with public health guidance and to prevent a catastrophic outbreak at the facility.
Persons Incarcerated in Maine’s Prisons Face Grave and Immediate Danger Due to COVID-19 36. Beyond the general public health presented by the COVID-19 pandemic, persons incarcerated in Maine’s prisons face a particularly acute threat of illness, permanent injury, and death. 37. As of May 14, 2020, Maine has had 1,405 coronavirus cases and seen 207 hospitalizations and 69 deaths as a result of the virus.78 No part of Maine has been spared, and the virus has shown up in every county in the state. Penobscot County, where Mountain View Correctional Facility is located, had 91 confirmed cases as of May 14, 202079 and has experienced spreading of coronavirus through community transmission.80 Cumberland County, where Maine Correctional Center and Southern Maine Women’s Reentry Center
78 COVID-19 Situation Reports, Maine CDC, available at https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus.shtml#situation (last accessed May 15, 2020). 79 COVID-19 Situation Reports, Maine CDC, available at https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus.shtml#situation (last accessed May 15, 2020). 80 Charles Eichacker, Coronavirus is spreading in Penobscot County through community transmission, Bangor Daily News, April 10, 2020, available at https://bangordailynews.com/2020/04/10/news/penobscot/coronavirus-is-spreading-inpenobscot-county-through-community-transmission/, last accessed May 8, 2020.
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are located, had 778 cases as of May 14, 202081 and also has confirmed community transmission of the virus.82 38. Despite the need to maintain 6 feet of distance and not congregate in gatherings larger than 10 people,83 prisoners in Maine Department of Corrections facilities cannot perform basic physical distancing. Petitioners, for example, live in dorms with approximately fifty other people, with whom they share common rooms, sinks, showers, and toilets. They sleep in small rooms with three other people.84 39. Despite the need for masks in areas where physical distancing is difficult, DOC does not enforce the requirement to wear masks in the common rooms or dorms. Nor do corrections officers wear masks while standing within six feet from their colleagues. Although incarcerated people have been given two cloth masks (made from the same material as the prison-issue boxer briefs), prisoners are sometimes unable to sanitize them between uses, and, when they are able to wash them, they quickly break down. 40. In any event, when others around them are not wearing them, masks offer only limited benefit for a wearer who is trying to protect themselves from catching the infection.85 The
81 COVID-19 Situation Reports, Maine CDC, available at https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus.shtml#situation (last accessed May 15, 2020). 82 Eichacker, Coronavirus is spreading in Penobscot County through community transmission, note 80, supra. 83 Frequently Asked Questions, Me. Dep’t of Health and Human Servs., https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/documents/PublicCOVID19-FAQ-8May2020.pdf (last visited May 15, 2020). 84 Denbow Decl. ¶¶ 15-26; Ragsdale Decl. ¶¶ 13-24. 85 Parrish Decl. ¶ 14.
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Maine CDC has made clear that “[e]ven if you wear a facemask, you should also use other
prevention methods,” and that wearing facemasks should “not take the place of other prevention measures,”86 like physical distancing and proper hygiene.
41. Yet the only hand hygiene to which Petitioners have access is the bathroom sink used by
approximately fifty other prisoners. The DOC-provided hand sanitizer is not effective
against COVID-19. The Maine CDC states that people should “[u]se an alcohol-based hand sanitizer that contains 60 percent to 95 percent alcohol.”87 The hand sanitizer that DOC provides to prisoners is alcohol free.88
Existing Procedures and Protocols Will Not Be Sufficient to Ensure the Safety of Class Members or the General Public 42. Because of the severity of the threat posed by COVID-19, and its potential to rapidly spread
throughout a correctional setting, public health experts recommend the rapid release from custody of people most vulnerable to COVID-19.89 Release is necessary to protect the
86 Frequently Asked Questions, Maine Dep’t of Health and Human Servs., https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/documents/PublicCOVID19-FAQ-6May2020.pdf. 87 Frequently Asked Questions, Maine Dep’t of Health and Human Servs., https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/documents/PublicCOVID19-FAQ-6May2020.pdf 88 Denbow Decl. ¶ 17; Ragsdale Decl. ¶ 20. 89 See Goldenson Decl. ¶¶ 43-44; Parrish Decl. ¶ 35 (“When physical distancing is not possible in one setting, people should be moved out of that setting to the greatest extent possible”); Meyer Dec., supra note 75 at ¶¶ 37–38 (noting that population reduction in jails will be “crucially important to reducing the level of risk both for those within [jail] facilities and for the community at large,” and that stemming the flow of intakes is a part of the necessary intervention); Stern Decl. at ¶¶ 9–10, Dawson v. Asher, 20-cv-409 (W.D. Wash.), ECF No. 6, (noting that release is “a critically important way to meaningfully mitigate” the risks of harm to persons who are at high risk of serious illness or death, as well as to support the broader community health infrastructure).
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people with the greatest vulnerability to COVID-19 from transmission of the virus, and also facilitate greater risk mitigation for prisoners, staff, and the broader community. Release of the most vulnerable people from custody would also reduce the burden on the region’s health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time. 43. Jail administrators in Cuyahoga County, Ohio90; San Francisco, California91; Jefferson County, Colorado92; Montgomery, Alabama93; and the State of New Jersey,94 among others, have concluded that widespread jail release is a necessary and appropriate public health intervention. Similarly, as of May 8, 2020, jails in Maine had reduced their populations by more than 40 percent since January 2020.95
90 Scott Noll, Cuyahoga County Jail Releases Hundreds of Low-Level Offenders to Prepare for Coronavirus Pandemic, (March 20 2020 6:04 p.m.), https://cutt.ly/CtRSHkZ. 91 Megan Cassidy, Alameda County Releases 250 Jail Inmates Amid Coronavirus Concerns, SF to Release 26, San Francisco Chronicle (March 20, 2020), https://cutt.ly/0tRSVmG. 92 Jenna Carroll, Inmates Being Released Early From JeffCo Detention Facility Amid Coronavirus Concerns, KDVR Colorado (March 19, 2020 2:29 pm.), https://cutt.ly/UtRS8LE. 93 See In Re: Covid-19 Pandemic Emergency Response, Administrative Order No. 4, Montgomery County Circuit Court (March 17, 2020). 94 Erin Vogt, Here’s NJ’s Plan for Releasing Up to 1,000 Inmates as COVID-19 Spreads (March 23, 2020), https://cutt.ly/QtRS53w. 95 Daily Dashboard, Dep’t of Corrections, https://www.maine.gov/corrections/home/MDOC%20COVID19%20Web%20Dashboard%20514-2020.pdf (last visited May 15, 2020).
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44. DOC has taken some precautions in an attempt to limit the risk of an outbreak of COVID19, including adopting a phased approach to the COVID-19 response.96 Due to “concerns of community transmissions,” DOC is in “Phase Two,” which includes the following: a. suspending visitation, work release and other community-related activities,97 b. implementing screening measures for staff,98 c. providing for increased cleaning and provision of cleaning supplies, d. posting signage about hand washing and general fact sheets about COVID-19 e. using Personal Protective Equipment (PPE) for med-line and MAT staff, f. providing the flu vaccine those who want it but have not received it, g. providing daily briefings at all facilities, h. suspending self-serve dining, i. pre-planning with local hospitals, and j. designating isolation areas at each facility, and limiting staff working among multiple facilities.99
45. Although not mentioned in Phase Two precautions, DOC has also provided two cloth masks per incarcerated individual, and, in some facilities, created alternative systems for providing meals. DOC has stated that it “will enter phase three [precautions] when there is
96 Statement of Commissioner Liberty, Maine Dep’t of Corrections (Mar. 27, 2020), https://www.maine.gov/corrections/home/3.27.20%20Statement%20from%20Commisioner%20 Liberty.pdf. 97 Statement of Commissioner Liberty, Maine Dep’t of Corrections (Mar. 20, 2020), https://www.maine.gov/corrections/home/Response%20from.%20Randall%20Liberty.pdf. 98 Statement of Commissioner Liberty, Maine Dep’t of Corrections (Mar. 20, 2020), https://www.maine.gov/corrections/home/Response%20from.%20Randall%20Liberty.pdf. 99 Id.; see also Statement of Commissioner Liberty, Maine Dep’t of Corrections (Mar. 27, 2020), https://www.maine.gov/corrections/home/3.27.20%20Statement%20from%20Commisioner%20 Liberty.pdf.
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a suspected or confirmed case within a DOC facility.”100 Yet DOC did not enter Phase
three after a confirmed positive case of a corrections worker at the Bolduc facility.101
46. DOC’s plan, should there be an outbreak in the facility, is limited to: notifying state
agencies and the medical community according to state protocol, increasing the use of PPE,
suspending programming “as necessary,” isolating intakes in cohorts, instituting
“alternative method for medical distribution” and “alternative method for food services, as
necessary” and triaging sick calls.102
47. Notwithstanding the efforts that DOC has taken, physical distancing in the facility remains
impossible, testing is limited, and rapid transmission of the disease in the facility remains
all but assured:
a. Physical distancing: Prisoners typically sleep two or four to a cell, share showers with 30 to 80 other inmates, and spend much of the day in small and crowded dayrooms where physical distancing is impossible. When traveling throughout the facility to go to the meal hall or elsewhere, prisoners are bunched together and cannot physically distance because there is no enough space.
b. Testing: Despite concerns with asymptomatic and pre-symptomatic transmission of the virus, DOC has performed only limited testing of prisoners with symptoms of COVID-19. As of May 14, 2020, DOC has tested only 26 inmates, or 1.3 percent of incarcerated adults.103 DOC does not test prisoners or staff who are
100 Statement of Commissioner Liberty, Maine Dep’t of Corrections (Mar. 27, 2020), https://www.maine.gov/corrections/home/3.27.20%20Statement%20from%20Commisioner%20 Liberty.pdf. 101 Statement of Commissioner Liberty, Maine Dep’t of Corrections (Mar. 31, 2020), https://www.maine.gov/corrections/home/3.31.20%20Statement%20from%20Commissioner%20 Liberty.pdf. 102 Statement from Randall A. Liberty, Commissioner Department of Corrections, March 27, 2020, https://www.maine.gov/corrections/home/3.27.20%20Statement%20from%20Commisioner%20 Liberty.pdf. 103 Daily Dashboard, https://bit.ly/2Z1Ay3r (last visited May 14, 2020).
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exposed to someone who tests positive unless they have symptoms themselves. For example, DOC did not test prisoners or staff who were exposed to the Bolduc employee who tested positive because “no clients or staff became symptomatic as a result of exposure.”104 A symptom-based approach to testing is particularly concerning in prison because some prisoners are so afraid of being forced into segregation or isolation that they have expressed they will not selfreport any symptoms of COVID-19.105 Numerous prisoners have said that, even if they start to feel symptoms, they will try to hide them.106 c. Hygiene: Hand sanitizer has been provided but it contains no alcohol, contrary to CDC guidelines.107 Although DOC provides prisoners with gloves and spray bottles of cleaning solution to clean the dormitories, bathrooms, there is minimal supervision to ensure consistent or thorough cleaning. No bleach or bleach-based products are provided for cleaning. d. Masks: Prisoners and staff are not required to wear masks at all times, and often do not wear them. 48. At current populations and staffing levels, it is impossible for DOC to ensure that all
medically vulnerable inmates can perform physical distancing as described in CDC108 and
other public health guidelines, namely, providing all incarcerated persons a six-foot radius
(113 ft2) or more of distance between any other persons at all times, including during meals,
transportation, provision of medication, recreation, counts, and all other activities.
104 Megan Gray, Maine prisons pressured to release more inmates, and information, during pandemic, Portland Press Herald (May 3, 2020), https://www.pressherald.com/2020/05/03/maine-prisons-pressured-to-release-more-inmates-andmore-information-during-pandemic/. 105 Denbow Decl. ¶ 23; Ragsdale Decl. ¶ 21. 106 Id. 107 See, e.g., https://www.fda.gov/drugs/information-drug-class/qa-consumers-hand-sanitizersand-covid-19 108 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html.
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DOC Has Categorically Refused Access to Medical Furlough and Severely Limited Home Confinement to Medically Vulnerable Prisoners
49. In light of these serious risks, immediate release of medically vulnerable Petitioners remains a necessary public health intervention.109 Release is needed to prevent irreparable harm to the medically vulnerable Class Members, and to reduce the incarcerated population in DOC facilities to enable adequate social distancing for all prisoners and staff.110
50. Yet unlike other correctional facilities in Maine,111 DOC has not engaged in widespread or systematic release of people who are medically vulnerable, near the end of their sentence, or otherwise eligible for home confinement.112
51. DOC has the authority to release prisoners on medical furlough when “medically necessary” and on supervised community confinement (SCCP) when certain statutory
109 See supra ¶ 33. 110 Id. Further, in the prison context, the ABA urges that “Governmental authorities in all branches in a jurisdiction should take necessary steps to avoid crowding that… adversely affects the … protection of prisoners from harm, including the spread of disease.” ABA Standard on Treatment of Prisoners 23-3.1(b). 111 Randy Billings, Increase in arrests of Portland’s homeless worries civil liberties group, Portland Press Herald (Apr. 7, 2020), https://www.pressherald.com/2020/05/07/uptick-inhomeless-arrests-worries-civil-liberties-group/ (quoting Cumberland County Sheriff as stating that “the jail has reduced its population by about 31 percent by releasing people with 90 days or fewer left on their sentences, and other nonviolent offenders eligible for home confinement”). 112 Although DOC’s incarcerated population has decreased by approximately 11% since January 2020, this is because DOC has temporarily halted most new admissions and many prisoners are being released on their planned release date. The average sentence for prisoners in DOC custody is only 1.6 years. However, according to the DOC website, there are only 64 prisoners currently on SCCP, out of a total of 1934 prisoners. Daily Dashboard (May 14, 2020), https://bit.ly/3fRsJmQ.
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criteria are satisfied. See 34-A M.R.S. § 3035(2)(C)113; 34-A M.R.S. § 3036-A.114 In each
of these circumstances, DOC retains custody and oversight over prisoners in the
community.
52. Advocates have been urging DOC for months to protect all prisoners—especially those
who are medically vulnerable—by granting home confinement or other measures to enable
physical distancing in the community. In a letter sent on March 19, 2020, the ACLU of
Maine urged that prisons and jails “do not needlessly keep people incarcerated who are especially vulnerable to COVID-19.”115 In another letter sent on April 20, 2020, a coalition
of organizations urged the Department of Corrections to exercise its authority—including
under medical furlough and SCCP—“to release enough people so that those left inside can adhere to CDC guidelines for safe physical distancing.”116 In outreach on behalf of
individual prisoners, moreover, the ACLU of Maine and other attorneys have requested
113 By statute, the Commissioner “may grant to a client under sentence to the department . . . furlough from the facility in which the client is confined under the following conditions,” including granting furlough “for the obtaining of medical services for a period longer than 10 days if medically required.” 34-A M.R.S. § 3035(2)(C). 114 By statute, the Commissioner “may transfer any prisoner committed to the department to be transferred from a correctional facility to supervised community confinement,” so long as (A) the prisoner has served 2/3 of a more-than-five-year sentence or ½ of a five-years-or-less sentence, (B) the prison has 18 months or less remaining on the term of imprisonment (incorporating any good time credits), (C) is classified as minimum or community security. 34-A M.R.S. § 3036-A. Conditions for SSCP include completing a work, education, or treatment program; living in an approved residence; submitting to a curfew, travel restrictions, drug tests, and searches; and abstaining from alcohol and drugs. Id. 115 March 18, 2020 Letter, available at https://www.aclumaine.org/sites/default/files/aclu_coronavirus_criminal_justice_maine_letterhea d_03182020.pdf. 116 April 20, 2020 Coalition Letter, available at https://www.aclumaine.org/sites/default/files/coalition_letter_to_mills_admin_04.20.20.pdf.
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SCCP, medical furlough, or and other accommodations to protect specific medically vulnerable prisoners.117 These requests have been rejected. 53. Despite its broad authority, DOC has “not expanded eligibility for home confinement to additional groups of inmates” since the pandemic erupted and instead is “using an even stricter set of criteria than usual.”118 In addition to the statutory criteria and typical guidelines, DOC has applied additional “parameters” to limit the number and type of people who are eligible for home confinement. The new and stricter guidelines include the following:
a. Client’s current release date must be less than one year (even though the statute allows for a default of 18 months),
b. Client is not currently serving a sentence for a crime committed against a person (even though this is not a typical statutory or policy requirement),
c. Client may not have a criminal history that includes a crime against a person, fugitive from justice, or several prior revocations of probation (even though these are not typical statutory or policy requirements),
d. Client must be approved as community custody by the Department’s classification instrument (even though the statute allows for minimum as well as community custody),
e. Client’s placement plan must include stable housing, medical services (as needed), and treatment / programming services (as appropriate) (even though
117 See, e.g., Sideris Decl. & Att. A, B. 118 Megan Gray, Maine prisons pressured to release more inmates, and information, during pandemic, Portland Press Herald, May 3, 2020, available at https://www.pressherald.com/2020/05/03/maine-prisons-pressured-to-release-more-inmates-andmore-information-during-pandemic/ (last accessed May 4, 2020); see also Daily Dashboard, Maine Dep’t of Corrections (May 6, 2020), https://www.maine.gov/corrections/home/MDOC%20COVID19%20Web%20Dashboard%2056-2020.pdf.
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many prisoners get medical care through MaineCare, which is suspended during periods of incarceration).119 54. DOC also provides several nonspecific factors, including the client’s medical history and current medical conditions, the client’s history on probation and/or SCCP, and the client’s treatment and programming progress and compliance while incarcerated.120 55. Although one would assume that “medical conditions” would support release, the experience of Petitioners suggests that DOC treats the presence of underlying medical conditions as a reason not to release otherwise eligible prisoners. Indeed, Petitioner Denbow’s case worker told him that “there’s nobody being released because of medical conditions, so you can get that idea right out of your head.”121 56. Similarly, in refusing timely accommodation for Petitioner Ragsdale, the Attorney General’s office explained that “[a]t present, he receives medication and medical treatment on site,” whereas “[i]n the community, he would have to visit pharmacies and medical providers to obtain treatment.”122 The AG’s office made the same point in opposing Petitioner Denbow’s release as requested in state court, stating that “multiple prescription medications . . . are presently provided to him in prison by the prison’s private medical contractor, but in the community, he would have to find access to medications through a
119 Daily Dashboard, Maine Dep’t of Corrections, https://www.maine.gov/corrections/home/MDOC%20COVID19%20Web%20Dashboard%2058-2020.pdf. 120 Daily Dashboard, Maine Dep’t of Corrections, https://www.maine.gov/corrections/home/MDOC%20COVID19%20Web%20Dashboard%2058-2020.pdf. 121 Denbow Decl. ¶ 13. 122 State Resp. to Demand Letter (May 7, 2020).
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doctor’s office or pharmacy.”123 Upon information and belief, to the extent any medically vulnerable individuals are currently released on SCCP, it is in spite of their medical risk and not because of it. Many medically vulnerable inmates who would be safe on SCCP are not being meaningfully considered. 57. DOC has also refused to grant expedited review or processing for people who are medically vulnerable. Petitioner Ragsdale, for example, applied for home confinement more than one month ago, but did not get any response until his lawyer sent a demand letter. Even after that, all he received was more paperwork to complete, and a notice that “[t]here is no guarantee that your application will be processed immediately” and that “[a]t this time very limited home investigations are being done. If it is not done now, it will be done when normal operations resume.” 58. The Department has also applied a categorical prohibition against using medical furlough to enable medically vulnerable prisoners to physically distance during the state of emergency—regardless of medical necessity. DOC has stated that the medical furlough program is typically used to transition clients into medical programs when current medical conditions are not able to be attained while they are incarcerated. Yet even though physical distancing is necessary for at-risk prisoners, DOC has refused to use medical furlough to enable medically vulnerable prisoners to physically distance during the state of emergency and facilitate greater physical distancing for those who remain inside. Instead, the Director
123 State Resp., Denbow v. State (Apr. 27, 2020) (Appendix of State Filings at 40).
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of Classification has represented that “the department is not utilizing the medical furlough to release clients during the COVID-19 pandemic.”124 59. In short, DOC has refused to use medical furlough and has applied community release so narrowly as to effectively be unavailable for the people who need it most. In normal times, such an approach may be merely unwise. In this pandemic, it is unconstitutional and unlawful because it unnecessarily and deliberately exposes medically vulnerable prisoners to an unacceptable risk of serious illness or death. 60. The imminent reopening of Maine’s economy only makes the plight of prisoners more dangerous. Outbreaks in other crowded settings have continued to increase even as Maine contemplates reopening.125 Prisons are inextricably linked to the wider community, and a rise in community cases increases the risk COVID-19 will infiltrate the prisons. Once the virus infiltrates the prisons (if it has not already done so), it will likely spread rapidly— increasing risk for prisoners, prison staff and their families, the medical works who are responsible for treating them, and the community as a whole.

IV.

CLASS ACTION ALLEGATIONS

61. Petitioners bring this action pursuant to Rule 23 of the Federal Rules of Civil Procedures

on behalf of themselves and a class of similarly situated individuals.

124 Sideris Decl., Att. B (email from DOC Classification Director).
125 Kevin Miller, Virus outbreaks reported at Portland meat plant, Bangor homeless shelter, Portland Press Herald (Apr. 29, 2020), https://www.pressherald.com/2020/04/29/maine-cdcreports-16-new-coronavirus-cases-one-additional-death/ (recording outbreaks in a Tyson Foods meat-processing plant Bangor’s Hope House Health and Living Center, which includes a homeless shelter). Charles Eichacker, Westbrook nursing home becomes 7th in Maine with a coronavirus outbreak, Bangor Daily News (May 6, 2020) https://bangordailynews.com/2020/05/06/news/portland/westbrook-nursing-home-becomes-7thin-maine-with-a-coronavirus-outbreak/.
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62. Petitioners Sean R. Ragsdale and Joseph A. Denbow seek to represent a class of all current and future inmates who, by reason of age or medical condition, are particularly vulnerable to injury or death if they were to contract COVID-19.
63. The “Medically-Vulnerable” subclasses are defined as all current and future persons held by DOC who qualify as high-risk under the CDC guidelines, including individuals over the age of 55, as well as all current and future persons incarcerated by DOC of any age who experience (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or (l) a current or recent (last two weeks) pregnancy.
64. This action has been brought and may properly be maintained as a class action under Federal law. It satisfies the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure, including the numerosity, commonality, typicality, and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
65. Joinder is impracticable because (1) the classes are numerous; (2) the classes include future members, and (3) the class members are incarcerated, rendering their ability to institute
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individual lawsuits limited, particularly in light of cancelation of all legal visitation and court closures. 66. On information and belief, there more than 900 people in the proposed Class. A significant portion of prisoners in DOC custody are medically vulnerable. According to DOC’s own estimates, approximately 925 prisoners in DOC custody have underlying medical conditions that could place them at heightened risk for serious illness or death from COVID-19.126 On top of this number are the additional prisoners who are medically vulnerable solely because of their age. 67. Petitioners also seek to represent three subclasses of individuals, (A) those who are set to be released within one year (the “Imminent Release Subclass”), (B) those who are classified by DOC as minimum or community security (the “Minimum Security Subclass”), and (C) those who are medically vulnerable because of disabilities protected by federal disability rights law (the “Disabilities Subclass”).
a. Imminent Release Subclass: Many Class Members are set to be released within one year, with the average sentence in the Maine Department of Corrections only 1.6 years. Members of this Subclass will soon be released to the community, and keeping them in prison simply makes it more like that they will become infected in the closed, congregate setting of prison, and carry the infection with them upon release to the community.
126 Sideris Decl. Att. B (DOC Classification Director stating that there are approximately 925 prisoners with preexisting conditions).
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b. Minimum Security Subclass: With many dorms filled with prisoners who are minimum security or community security, the second subclass is also sizeable. Members of this Subclass have been identified by DOC has presenting extremely low risk to security. Continued incarceration exposes them to a high risk of serious illness or death.
c. Disabilities Subclass: Persons who are medically vulnerable to COVID-19 because of underlying medical conditions are protected, not only by the Eighth Amendment to the United States Constitution, but also be federal disability rights laws like the ADA and the Rehabilitation Act.
68. Common questions of law and fact exist as to all members of the proposed class. All have a right to receive adequate COVID-19 prevention, testing, and treatment. All are deprived of the ability to physically distance in DOC facilities, all are harmed by DOC’s insufficient testing, and all are deprived of necessary hand hygiene such as alcohol-based hand sanitizer. Further, all members of the Class are harmed by the DOC’s categorical refusal to consider medical furlough, or to expedite and facilitate home confinement for medically vulnerable individuals.
69. Named Petitioners have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the class. Petitioners have no interests adverse to the interests of the proposed class. Petitioners retained pro bono counsel with experience and success in the prosecution of civil rights litigation. Counsel for Petitioners know of no conflicts among proposed class members or between counsel and proposed class members.
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70. Respondents have acted on grounds generally applicable to all proposed class members, and this action seeks declaratory and injunctive relief. Petitioners therefore seek class certification under Rule 23(b)(2).
71. In the alternative, the requirements of Rule 23(b)(1) are satisfied, because prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of contact for the party opposing the proposed classes.
THE COURT SHOULD GRANT PETITIONERS THE RELIEF THEY SEEK Petitioners’ Incarceration Amidst the Likely COVID-19 Outbreak in DOC Facilities
Violates their Right to Constitutional Conditions of Confinement 72. Corrections officials have a constitutional obligation to provide for detainees’ reasonable
safety and to address their serious medical needs. See DeShaney v. Winnebago County Dept. of Soc. Services, 489 U.S. 189, 200 (1989) (“[W]hen the State by the affirmative exercise of its power 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 substantive limits on state action set by the Eighth Amendment and the Due Process Clause.” ); Youngberg v. Romeo, 457 U.S. 307, 315–16, 324 (1982) (the state has an “unquestioned duty to provide adequate . . . medical care” for incarcerated persons); Wilson v. Seiter, 501 U.S. 294, 300 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976); Brown v. Plata, 563 U.S. 493, 531-32 (2011); Farmer v. Brennan, 511 U.S. 825, 834 (remanding for determination whether correctional officer violated Eighth Amendment by failing to prevent “a substantial risk of serious harm”).
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73. An inmate’s entitlement to medical treatment “reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards” is undisputed. United States v. DeCologero, 821 F.2d 39, 43 (1st Cir. 1987).
74. This obligation requires corrections officials to protect detainees from infectious diseases like COVID-19; officials may not wait until someone tests positive for the virus, and an outbreak begins. Helling v. McKinney, 509 U.S. 25, 33-34 (1993) (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition. . . . 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”); Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect [forcibly confined] inmates from infectious disease”); see also Farmer v. Brennan, 511 U.S. 825, 833 (1994) (“[H]aving stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.”).
75. “[T]o prove an Eighth Amendment violation, a prisoner must satisfy both of two prongs: (1) an objective prong that requires proof of a serious medical need, and (2) a subjective prong that mandates a showing of prison administrators’ deliberate indifference to that need.” Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014).
76. Under the objective prong, the risk of infection with COVID-19 represents a serious medical need for Petitioners and medically vulnerable Class Members. As another court recently explained, “[f]or infected inmates, the virus can lead to pneumonia,” and “[i]n the worse pneumonia cases, COVID-19 victims suffer diminishing oxygen absorption, with resulting organ failure,” and victims “chok[ing] to death.” Wilson v. Williams, No. 4:20-
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CV-00794, 2020 WL 1940882, at *8 (N.D. Ohio Apr. 22, 2020). “While not every inmate who contracts the virus will die, [medically vulnerable prisoners] are at a much greater risk of doing so.” Id. “They have a very serious medical need to be protected from the virus.” Id. 77. Under the subjective prong, with respect to an impending infectious disease like COVID19, deliberate indifference is satisfied when corrections officials “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,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33 (holding that a prisoner “states a cause of action . . . by alleging that [corrections officials] have, with deliberate indifference, exposed him to conditions that pose an unreasonable risk of serious damage to future health”); see also Hope v. Pelzer, 536 U.S. 730, 738 (2002) (citing Farmer, 511 U.S. at 842) (court “may infer the existence of [deliberate indifference] from the fact that the risk of harm is obvious”). 78. DOC’s refusal to enable physical distancing in its facilities, or to provide meaningful access to medical furlough or home confinement for the medically vulnerable class— ensuring they will be unable to physically distance and protect themselves from the virus— qualifies as deliberate indifference. See, e.g., Hare v. City of Corinth, Miss., 74 F.3d 633, 644 (5th Cir. 1996) (“even where a State may not want to subject a detainee to inhumane conditions of confinement or abusive jail practices, its intent to do so is nevertheless
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presumed when it incarcerates the detainee in the face of such known conditions and practices.”). 127 79. Even if DOC’s current spacing of detainees and provision of healthcare would serve the legitimate purpose of prison health and safety in normal times, those procedures are now endangering health and safety in the wake of COVID-19. See Plata, 563 U.S. 493 (ordering release of inmates to correct overcrowding that violated Eighth Amendment); Memorandum and Order, Thakker v. Doll, No. 20-CV-0480 (M.D. Pa. Mar. 31, 2020) (categorically releasing petitioners who “suffer[] from chronic medical conditions and face[] an imminent risk of death or serious injury if exposed to COVID-19). B. DOC’S, Practices, and Procedures in the Face of COVID-19 Violate the ADA and the Rehabilitation Act 80. The Disability Subclass includes everyone in the medically vulnerable class who is vulnerable because of a disability as defined under federal law. This includes everyone in the medically vulnerable subclass except those vulnerable solely because of age or pregnancy status. All other conditions that increase risk for COVID-19 complications or death—including lung conditions, asthma, heart conditions, diabetes, kidney disease, livery disease, HIV, immune dysfunction, autoimmune disorders, cancer treatment, and history of organ or bone marrow transplantation—are disabilities under federal disability rights laws. By categorically refusing medical furloughs and severely limiting home confinement for medically vulnerable prisoners, DOC’s policies and practices violate the ADA and the Rehabilitation Act.
127 See also, Public Health Experts’ Declarations, supra note 89. 37

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81. Title II of the ADA requires that public entities refrain from discriminating against qualified individuals on the basis of a disability. 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act imposes parallel requirements on public entities that receive federal funds, as does the Maine DOC. See Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). In order to avoid disability discrimination in the Maine DOC in this public health emergency, release is a reasonable and nondiscriminatory method to ensure that the members of the Disability Subclass are able to receive necessary preventative care—the ability to physically distance. 1. The ADA and Section 504 Apply to the Respondents and Members of the Disability Subclass
82. Petitioners and Class Members in the Disability Subclasses are protected people with disabilities under the ADA and Section 504. They are all medically vulnerable to COVID19 complications or death due to their disabilities. “Disability” is defined broadly, to include, inter alia, a “physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). “Major life activity” is itself broadly defined, and includes “the operation of a major bodily function,” such as “functions of the immune system, normal cell growth . . . neurological, brain, respiratory, circulatory, [or] endocrine” systems. 42 U.S.C. § 12102(2)(B). Petitioners and Members of the Disability Subclasses have disabilities that substantially limit a major life activity or major bodily function.128
128 Several conditions within the disability subclasses are expressly identified in regulations as presumptively covered disabilities. 28 C.F.R. § 35.108(d)(2)(iii) (“it should easily be concluded” that “[c]ancer substantially limits normal cell growth . . . diabetes substantially limits endocrine
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83. Petitioners and Class Members are “qualified” for Defendants’ programs, services, and activities, including provision of necessary medical treatment, including medical furlough when necessary; home confinement under 34-A M.R.S. § 3036-A; and safe, constitutional living conditions during confinement; and medical care and rehabilitative services to prepare for reentry after release. 42 U.S.C. § 12131(2); 28 C.F.R. § 35.104; 28 C.F.R. § Pt. 35, App. B (“[T]itle II applies to anything a public entity does”).
84. The Maine Department of Corrections is a “public entity” for purposes of the ADA, and is bound to comply with Title II. 42 U.S.C. § 12131(B) (“public entity” includes “any department, agency, special purpose district, or other instrumentality of a State or States or local government”); see also Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). The Maine DOC also receives federal funds for purposes of the Rehabilitation Act. 2. Under the ADA and Section 504, DOC has an Affirmative Obligation to Ensure Equal and Equally Safe Access to Programs, Services, and Activities and to Avoid Disability Discrimination Against Disabled Class Members.
85. In order to avoid disability discrimination, public entities have an affirmative obligation to ensure that people with disabilities can participate in all of the entity’s programs, benefits, and services on an equal and equally safe basis as people without disabilities. 28 C.F.R. §§ 35.102(a), 35.130(a)-(b); Pierce v. D.C., 128 F. Supp. 3d 250, 266 (D.D.C. 2015) (“[B]ecause Congress was concerned that ‘[d]iscrimination against [people with disabilities] was . . . most often the product, not of invidious animus, but rather of thoughtlessness and indifference – of benign neglect[,]’ the express prohibitions against
function . . . epilepsy . . . substantially limits neurological function . . . HIV infection substantially limits immune function.”
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disability-based discrimination in Section 504 and Title II include an affirmative obligation to make benefits, services, and programs accessible to disabled people”); id. at 269 (“[N]othing in the disability discrimination statutes even remotely suggests that covered entities have the option of being passive in their approach to disabled individuals as far as the provision of accommodations is concerned.”). Public entities must avoid policies, practices, criteria, or methods of administration that have the purpose or effect of excluding or discriminating against persons with disabilities. 28 C.F.R. § 35.130(b)(3), (8). 86. These affirmative obligations include a requirement that public entities make reasonable modifications to their policies, practices, or procedures where necessary to avoid disability discrimination. 28 C.F.R. § 35.130(b)(7)(i). The ADA also prohibits public entities from “utiliz[ing] criteria or methods of administration . . . [t]hat have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability” or “[t]hat have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.” 28 C.F.R. § 35.130(b)(3)(i)-(ii). 3. Reasonable modifications, including release of the Disability Subclass, are
required under the ADA and Section 504. 87. DOC discriminates against the Disability Subclass by refusing to “affirmatively
accommodate” their disabilities as necessary to provide “meaningful access to a public service.” Nunes v. Mass. Dep’t of Correction, 766 F.3d 136, 145 (1st Cir. 2014) (citation omitted). The Disability Subclasses are entitled to full constitutional protections, as well as reasonable modifications under disability rights laws to ensure they can participate equally and with equal safety in Defendants’ programs, services, and activities. Defendants’ programs, services, and activities include provision of necessary medical treatment,
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including medical furlough when necessary, 34-A M.R.S. § 3035(C)(2); rehabilitative programs such as home confinement under 34-A M.R.S. § 3036-A; and safe, constitutional living conditions during confinement to prepare the person for a safe return to society at the end of their sentence. Disability Subclass members cannot access these services equally if they are severely ill, unconscious, or dead. Because of their high risk of these catastrophic outcomes—which will inevitably result in exclusion from the jail’s programs—the jail must release them as a reasonable modification, and to avoid unlawful discriminatory methods of administration. 88. DOC has also excluded members of the Disability Subclass from available medical services and rehabilitative programs—namely, medical furlough and home confinement. Release to the community is a reasonable and necessary accommodation for many members of the Disability Subclass, who require space to physically distance and protect themselves from the virus. By categorically making medical furlough unavailable during the pandemic, DOC discriminates against members of the Disability Subclass who require life-saving preventive care (physical distancing) that is only available outside of the prison. And by applying stricter-than-usual standards for home confinement during the pandemic and by failing to process applications in a reasonable timeframe, DOC discriminates against Subclass Members with disabilities who are at heightened risk from the pandemic. In short, by categorically refusing to provide access to medical furlough and by denying reasonable access to home confinement, DOC has denied access to necessary treatments and programs in violation of disability rights laws. 89. Release of the Disability Subclasses is a reasonable modification and is not a fundamental alteration. Cf. Coleman v. Schwarzenegger, 922 F. Supp. 2d 882, 1003 (E.D. Cal. 2009);
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Inmates of Allegheny Cnty. Jail v. Peirce, 487 F. Supp. 638, 644 (W.D. Pa. 1980); cf. Henrietta D. v. Bloomberg, 331 F.3d 261, 281 (2d Cir. 2003) (“[t]he reasonableness of the modifications that plaintiffs seek . . . is evidenced by the fact that virtually all are modifications that defendants have long purported … to provide”) (quoting Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 208 n.17 (E.D.N.Y. 2000)). Release on medical furlough, home confinement, or another accommodation is the most effective and reasonable modification to ensure Disability Subclass members are not subject to disability discrimination. C. 28 U.S.C. § 2241 is an Appropriate Vehicle to Remedy these Violations 90. Section 2241(c)(3) allows this court to order the release of inmates like Petitioners who are held “in violation of the Constitution or laws . . . of the United States.” 28 U.S.C. 2241(c)(3); Peyton v. Rowe, 391 U.S. 54, 67 (1968) (Section 2241(c)(3) can afford immediate release for claims other than those challenging the sentence itself). This circuit has confirmed that Section 2241 is available for so-called “conditions of confinement” challenges. Miller v. U.S., 564 F.2d 103, 105 (1st Cir. 1977) (“Section 2241 provides a remedy for a federal prisoner who contests the conditions of his confinement.”).129
129 See Miller v. U.S., 564 F.2d 103, 105 (1st Cir. 1977) (“Section 2241 provides a remedy for a federal prisoner who contests the conditions of his confinement.”); see also Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (“This court has long interpreted § 2241 as applying to challenges to the execution of a federal sentence, ‘including such matters as the administration of parole, . . . prison disciplinary actions, prison transfers, type of detention and prison conditions.’”); Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014) (“Our precedent establishes that one in custody may challenge the conditions of his confinement in a petition for habeas corpus.”).
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91. Habeas corpus is the appropriate remedy when a petitioner challenges “the fact or duration of his confinement” or seeks a “quantum change” to a less restrictive form of custody. Gonzalez-Fuentes v. Molina, 607 F.3d 864, 873 (1st Cir. 2010) (citing, e.g., Wilkinson v. Dotson, 544 U.S. 74, 78 (2005)); Dickerson v. Walsh, 750 F.2d 150, 152 (1st Cir. 1984). In this case, Petitioners and Class Members challenge the fact of their confinement, which, they allege, has “become unconstitutional because of the COVID-19 pandemic risk.” McPherson v. Lamont, No. 3:20CV534, 2020 WL 2198279, at *4 (D. Conn. May 6, 2020) (exercising jurisdiction over a section 2241 habeas petition challenging unlawful confinement during the COVID-19 pandemic) (citing cases).
D. Exhaustion of State Remedies in the Face of COVID-19 Spread Would Be Futile 92. 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).130 Unlike the statutory exhaustion requirement in § 2254, the judge-made exhaustion requirement for § 2241 petitions is prudential, flexible, and non-jurisdictional. See, e.g. Santiago-Lugo v. Warden, 785 F.3d 467, 474 (11th Cir. 2015). The Supreme Court has described the exhaustion doctrine in § 2241 cases as a “judicially crafted instrument which reflects a careful balance between important interests of federalism and the need to preserve the writ of habeas corpus as a ‘swift and imperative remedy in all cases of illegal restraint or
130 Cf. Deere v. Superior Court of Cal., No. 07-56109, 2009 WL 2386677, at *1 (9th Cir. Aug. 5, 2009) (declining to decide the question of whether a § 2241 petitioner must first exhaust his state remedies “to the extent this question has not been decided.”); U.S. v. Castor, 937 F.2d 293, 296297 (7th Cir. 1991) (“While these applicants [defendants awaiting trial] are not subject to the statutory requirement of exhaustion remedies, 28 U.S.C. § 2254(b)(1988) … federal courts nevertheless may require, as a matter of comity, that such detainees exhaust all avenues….”).
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confinement.’” Braden, 410 U.S. at 490 (citation omitted). Courts, accordingly, apply it with those dual purposes in mind. See, e.g., Park v. Thompson, 356 F. Supp. 783, 788 (D. Haw. 1973) (“It is the legal issues that are to be exhausted, not the petitioner.”). 93. Courts have also recognized that exhaustion is excused where it would be futile. “Although the exhaustion rule is important, it is not immutable: exhaustion of remedies is not a jurisdictional prerequisite to a habeas petition, but, rather, a gatekeeping provision rooted in concepts of federalism and comity.” Allen v. Attorney Gen. of State of Me., 80 F.3d 569, 573 (1st Cir. 1996); Schandelmeier v. Cunningham, 819 F.2d 52, 53 (3d Cir. 1986) (applying futility doctrine to state prisoner seeking Section 2241 habeas relief). McPherson v. Lamont, No. 3:20CV534 (JBA), 2020 WL 2198279, at *4 (D. Conn. May 6, 2020)2012) (quoting Beharry v. Aschcroft, 329 F.3d 51, 62 (2d Cir. 2003). A state corrective process may be futile when it “is so clearly deficient as to render futile any effort to obtain relief.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981). 94. Efforts to obtain relief for Petitioners demonstrate that it would be not only futile, but dangerous to force Petitioners and Class Members to exhaust state remedies when their risk of COVID-19 contraction is increasing by the minute. “[U]ndue delay, if it in fact results in catastrophic health consequences, could make exhaustion futile.” McPherson v. Lamont, No. 3:20CV534 (JBA), 2020 WL 2198279, at *6 (D. Conn. May 6, 2020) (citing Washington v. Barr, 925 F.3d 109, 118 (2d Cir. 2019)). It would be futile to seek such relief in state court, where Mr. Denbow’s individual petition for post-conviction review has languished without a hearing for nearly five weeks (since April 13, 2020), Denbow
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Decl., ¶ 27, and where Maine criminal procedure requires singular treatment of post-
conviction review, and does not authorize class treatment. See M.R. Crim. P. 67(b).131
95. In light of the unprecedented crisis presented by the COVID-19 pandemic, class relief is
essential to promote efficiency, consistency, and fairness, and to improve access to legal
and expert assistance by parties with limited resources.132 Class relief is essential because
proceeding on a case-by-case basis is too cumbersome in the face of the unprecedented
COVID-19 pandemic—as illustrated by outbreaks across the country.133 As such,
exhaustion is futile for proposed Class Members, because requiring each member to
individually petition the state court would burden the limited judicial resources during this
131 See also M. R. Crim. P. 67(b) (requiring that a single petition may attack only a single proceeding); M.R. Civ. P. 23 (applying only in civil actions, not criminal actions like postconviction reviews). 132 Monk v. Shulkin, 855 F.3d 1312, 1320–21 (Fed. Cir. 2017) (referencing inherent authority to aggregate cases when it “promot[es] efficiency, consistency, and fairness, and improving access to legal and expert assistance by parties with limited resources”); Stephen C. Robin, Healing Medicare, 95 N.C. L. Rev. 1293, 1303 (2017) (citing Barr, 930 F.2d at 74; Air Line Pilots Ass’n, Int’l v. Civil Aeronautics Bd., 750 F.2d 81 (D.C. Cir. 1984)) (suggesting a preference for suits brought on behalf of a class or association, where the court can “shift[ ] its focus from one claimant to the whole system” and “simply address[ ] the unreasonable delays felt by all of the potential parties with claims under the Act in question”); Harshaw v. Farrell, 55 Ohio App. 2d 246, 247, 380 N.E.2d 749, 750–51 (Ohio Ct. App. 1977) (holding that “a class action in habeas corpus may be the swiftest, fairest, and most effective way to obtain common relief for a large group of persons who are confined unlawfully under similar or identical circumstances”). 133 Recent news includes outbreaks in jails and prisons in Tennessee, Massachusetts, and Michigan. See, e.g., COVID-19 outbreak infecting over 500 prisoners may have come from staff: Medical director (Apr. 28, 2020), https://abcnews.go.com/US/covid-19-outbreak-infecting-500prisoners-staff-medical/story?id=70382322; Mass. Prisons And Jails Among Hardest Hit By Coronavirus In U.S. (Apr. 28, 2020), https://www.wbur.org/investigations/2020/04/28/coronavirus-prisons-jails-massachusetts-deathscases; Lakeland has the most positive COVID-19 cases of all M.D.O.C facilities (87 percent of tested prisoners were positive for the coronavirus) (Apr. 22, 2020), https://wtvbam.com/news/articles/2020/apr/22/lakeland-has-the-most-positive-covid-19-casesof-all-mdoc-facilities/1009979/.
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emergency and cause further delay. The risk of irreparable harm to Petitioners and Class Members is simply too high to require exhaustion in this circumstance.

V.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

Unconstitutional Punishment in Violation of the Eighth Amendment to the U.S. Constitution
28 U.S.C. § 2241
96. Under the Eighth Amendment, persons in carceral custody have a right to be free from

cruel and unusual punishment. As part of the right, the government must provide

incarcerated persons with reasonable safety and address serious medical needs that arise in

jail. See, e.g., Estelle, 429 U.S. at 104; DeShaney, 489 U.S. at 200. Deliberate indifference

to the serious risk COVID-19 poses to Class Members infringes on the protection from

cruel and unusual punishment. Respondents violate this right by subjecting Class Members

to conditions of confinement that do not ensure their safety and health.

97. The Prison has neither the capacity nor the ability to comply with public health guidelines

to prevent an outbreak of COVID-19 and cannot provide for the safety of the Post-

Conviction Class.

98. Respondents’ actions and inactions result in the confinement of members of the Post-

Conviction Class in a jail where they do not have the capacity to test for, treat, or prevent

COVID-19 outbreaks, which violates Petitioners’s rights to treatment and adequate

medical care.

99. By operating prison without the capacity to test for, treat, or prevent a COVID-19 outbreak,

Respondents, as supervisors, direct participants, and policy makers for the Maine

Department of Corrections have violated the rights of Class Members under the Eighth

Amendment. 46

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SECOND CLAIM FOR RELIEF Discrimination on the Basis of Disability in Violation of Title II of the ADA
42 U.S.C. § 12131 et seq. / 28 U.S.C. § 2241 Disability Subclass versus all Respondents 100. Petitioners incorporate by reference each of the preceding paragraphs and allegations as if fully set forth herein. 101. Title II of the ADA requires that public entities refrain from discriminating against qualified individuals on the basis of disability. 42 U.S.C. § 12132. The regulations implementing Title II of the ADA require that public entities avoid unnecessary policies, practices, criteria or methods of administration that have the effect of excluding or discriminating against persons with disabilities in the entity’s programs, services, or activities. 28 C.F.R. § 35.130(a), (b)(3), (b)(8). Further, a public entity must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i). 102. Petitioners Ragsdale and Denbow are individuals with disabilities for purposes of the ADA. 42 U.S.C. § 12102. As people held in the Maine Department of Corrections, they are “qualified” for the programs, services, and activities being challenged herein. 42 U.S.C. § 12131(2). 103. Defendants are violating Title II of the ADA by failing to make the reasonable modifications necessary to ensure equal access to adjudication, jail services, and release for people with disabilities who face high risk of complications or death in the event of
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COVID-19 infection. Defendants are further violating the ADA by employing methods of administration (including a policy of non-release even in the face of COVID-19) that tend to discriminate against people with disabilities by placing them at heightened risk of severe illness and death.
THIRD CLAIM FOR RELIEF Discrimination on the Basis of Disability in Violation of Section 504 of the Rehabilitation
Act 29 U.S.C. § 794 et seq. / 28 U.S.C. § 2241 Disability Subclass versus all Respondents 104. Section 504 of the Rehabilitation Act states that “no otherwise qualified individual with disability in the United States . . . shall, solely by reason of [] disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The regulations implementing Section 504 of the Rehabilitation Act require that entities receiving federal financial assistance avoid unnecessary policies, practices criteria or methods of administration that have the effect of discriminating against persons with disabilities. 28 C.F.R. § 41.51(b)(3)(i). 105. 134. Defendants receive “Federal financial assistance” within the meaning of 28 U.S.C. § 794(a). 106. Petitioners Ragsdale and Denbow are individuals with disabilities for purposes of the Rehabilitation Act, 42 U.S.C. § 12012, 29 U.S.C. § 705(20)(B). As people held in the Maine Department of Corrections, they are “qualified” for the programs, services, and activities being challenged herein.
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107. Defendants are violating section 504 of the Rehabilitation Act by failing to make the reasonable modifications necessary to ensure equal access to adjudication, jail services, and release for people with disabilities who face high risk of complications or death in the event of COVID-19 infection. Defendants are further violating the ADA by employing methods of administration (including a policy of non-release even in the face of COVID19) that tend to discriminate against people with disabilities by placing them at heightened risk of severe illness and death.

VI.

REQUEST FOR RELIEF

108. Petitioners and Class Members respectfully request that the Court order the following:

1. Certification of this Petition as a Class Action; 2. A temporary restraining order, preliminary injunction, permanent injunction,
order of enlargement, and/or writ of habeas corpus a. declaring that it is unconstitutional and unlawful for DOC to categorically deny access to medical furlough during the pandemic; b. ordering DOC to identify members of the medically vulnerable class, the imminent release subclass, the minimum-or-community custody subclass, and the disability subclass, within two days; c. order DOC to evaluate, under standards that comply with the Eighth Amendment and federal disability laws, each class member’s eligibility for medical furlough, home confinement, or another accommodation to enable social distancing, or, in the alternative, appoint a Rule 706 expert to complete such evaluation; and

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Case 1:20-cv-00175-JAW Document 1 Filed 05/15/20 Page 50 of 51 PageID #: 50 d. order enlargement for Class Members to safely physically distance in the community or another appropriate setting;
3. A declaration that DOC’s policies and practices violate the Eighth Amendment right against cruel and unusual punishment;
4. A declaration that DOC’s policies and practices violate the ADA and Rehabilitation Act’s prohibition of discrimination on the basis of disability;
5. All further action required to release Class and Subclass Members to ensure that all remaining persons are incarcerated in DOC facilities under conditions consistent with CDC guidance to prevent the spread of COVID-19, including requiring that all persons be able to maintain six feet or more of space between them;
6. Any further relief this Court deems appropriate.
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Dated: May 15, 2020

Respectfully Submitted,
/s/ Emma E. Bond Emma E. Bond, Esq. Zachary L. Heiden, Eq. American Civil Liberties Union of Maine Foundation 121 Middle Street, Suite 200 Portland, ME 04103 (207) 619-8687 ebond@aclumaine.org (207) 619-6224 heiden@aclumaine.org
Moe Keshavarzi* Robert Sturgeon* Alex Kuljis* Sheppard Mullin Richter & Hampton LLP 333 South Hope Street, 43rd Floor Los Angeles, CA 90071-1422 213.617.5544 MKeshavarzi@sheppardmullin.com 213-617-5435 RSturgeon@sheppardmullin.com 213-617-4239 AKuljis@sheppardmullin.com
Jodi Nofsinger Miriam Johnson Taylor Asen Berman and Simmons 129 Lisbon Street Lewiston, Maine 04240 jnofsinger@bermansimmons.com (207) 784-7699 mjohnson@bermansimmons.com (207) 784-3576 tasen@bermansimmons.com
Attorneys for Petitioners and Proposed Class
* pro hac vice application forthcoming

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,

Petitioners, v.

Case No. ____________

RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity, MAINE DEPARTMENT OF CORRECTIONS,

Respondents

DECLARATION OF JOSEPH DENBOW
I, Joseph Denbow, am over the age of 18 and fully competent to make the following declaration:
1. I am currently incarcerated in the Maine Department of Corrections (DOC), Mountain View Correctional Facility. My DOC number is 33030. I am 54 years old and suffer from numerous chronic health conditions that I understand place me at higher risk for severe illness or death from COVID-19. I receive Social Security income because of my disabilities.
2. I have already served the majority of a two-year prison sentence. My earliest release date is August 30, 2020. I am incarcerated for driving without a license and for initially giving the traffic officer my brother’s name instead of my own (resulting in a conviction of aggravated forgery). I have been unable to pay off fines associated with decades-old driving offenses and this is my second time serving a sentence in prison for driving on a revoked license. Even once I am released, I will remain supervised by the DOC during 2 years of probation.
3. I am terrified of dying in prison from this respiratory disease. Many years ago, my threemonth-old daughter died from a respiratory virus after my girlfriend and I unsuccessfully sought care at a local hospital. I understand all too well that respiratory viruses can be deadly. I do not want to become the next prisoner who dies from COVID-19 in prison without being able to see my family again.
Medical Conditions and History
4. I am 54 years old and suffer from asthma and chronic obstructive pulmonary disease. I am in remission from a recent bout with colorectal cancer, which required chemotherapy, radiation, and pain medication. I am prescribed two different inhalers to manage my asthma, plus nebulizer treatment as needed. I use my inhaler 3-4 times a week. My parents both died of lung cancer, and my brother and sister-in-law recently passed away from lung disease.
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5. As a result of the opioid medication prescribed for chronic post-operative pain during and after my cancer treatment, I developed an addiction to opioids and am now in treatment with medication for addiction treatment (MAT).
6. I believe my cancer is in remission, but in November 2019, the medical provider reviewed a CT scan and found a lesion on my kidney, and stated that the lesion would require further evaluation. It can be hard to access medical care in the Maine Department of Corrections. I have not received additional care or evaluation for the potential kidney lesion, despite discussing it with another medical provider at a January 2020 appointment. Apparently in response to this concern, a doctor recently notified me that I am in remission, but he did not say that they would provide any follow-up evaluation or treatment for any lesion on my kidney.
7. None of the medical providers are able to assure me that I will be protected from the virus in this facility, or that I will be able to get necessary care if I get sick. On March 23, I put in a sick call slip explaining that I was “overwhelmed with worry / stress over this coronavirus and not being scanned in 8 months to see where my cancer situation [is] at[.]” At the medical appointment, I told the provider that I need someone to protect me from the virus and said “I didn’t come to prison to die.” In medical notes, the provider noted she was “unable to provide much reassurance.” I have talked with another medical provider who said that DOC does not know what they will do when the virus comes to the facility.
8. I am also diagnosed with several psychiatric conditions in addition to substance use disorder, including anxiety, depression, and post-traumatic stress disorder.
Home Confinement or Medical Furlough
9. I am classified as “minimum” level supervision, and I am allowed to go off of prison grounds to work in the community. Before the COVID-19-related restrictions, I was trusted to work in the community during the day at various locations and return to the prison at night. My jobs in the community included projects like sheet rocking and painting, as well as setting up tables and chairs for town meetings.
10. Yet DOC has refused to allow me to physically distance in community custody during the COVID-19 pandemic.
11. The staff reviewing my application for community custody found that my work attendance, performance, and other issues were satisfactory, and noted that I had “been a great worker and ha[d] shown good attitudes toward others.” However, they denied my application, stating that I had a “previous SCCP failure” almost seven years ago.
a. Specifically, when I was incarcerated in 2012 to 2014 for an earlier instance of driving on a revoked license, I was temporarily released on SCCP in 2013 to attend college classes in the community.
b. DOC revoked my SCCP based on alleged violations of the SCCP conditions, including dropping out of school. I tried to explain to the DOC that I had a doctor’s note for stopping my classes (including for symptoms that would later be diagnosed as cancer). I was not charged with any new criminal conduct or probation violation, and never posed a risk to anyone in the community.
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c. This “previous SCCP failure” is the sole reason provided for keeping me in prison, where I am afraid I could get sick and die from COVID-19.
12. I want to be able to safely socially distance in the community with my fiancé. My fiancé and I both receive Social Security income payments for our disabilities and, once we got settled, could use those funds to pay for necessities like rent and food. But my fiancé is currently living with her daughter and cannot plan for housing for us until she knows whether I will be allowed to get out.
13. Other people who have jobs in the community have been released on SCCP. Most people who I talk to in my minimum-security dorm who have medical conditions are nowhere close to getting approved for SCCP. When I was talking with my case worker about the possibility of being released because of my medical conditions, she responded that nobody with medical conditions was getting out, saying “there’s nobody being released because of medical conditions, so you can get that idea right out of your head.”
14. I do not know anybody who has been released on medical furlough because of COVID19.
Conditions in the Prison
15. DOC policies make social distancing impossible. I live in constant fear that the morethan-fifty people who I have close contact with each day could be carrying or spreading the virus.
16. I share a dorm, common rooms, sinks, showers, and toilets, with approximately fifty other inmates. Although there are upstairs and downstairs bathrooms in the dorm, my cell is on the lower floor, where the common rooms are, and many prisoners use the downstairs bathrooms while they are using the common rooms.
17. I sleep in an approximately 8 foot by 10 foot cell with three other prisoners. Another prisoner sleeps in the bunk right on top of me. Two other people are across the room. I have no way of knowing whether the other people in my cell have done a thorough job of washing their hands, or whether they may be carrying the virus.
18. I have no idea whether other prisoners or staff could have the virus, and, for most people, I do not think that DOC knows either.
a. Nobody that I talk to has been tested.
b. As to prison staff, DOC states that they do temperature checks and symptomscreening of staff when they arrive at the facility. But DOC does not provide us with information about testing for prison staff. Some guards have stayed home lately. I do not know whether the officers are staying home because they have symptoms of the disease. I saw news reports that an officer at Bolduc Facility tested positive, but I do not know whether any of the officers at Mountain View have tested positive.
19. I have read that COVID-19 can live on surfaces for days and I am afraid that the virus could be living on surfaces throughout the dorm (including in the shared bathrooms). We are assigned to clean the dorms several times a day, but there is no supervision to make sure people do a good job. I am not assigned to clean the dorms or bathrooms, but I do it anyway when I can tell that people have not been cleaning as necessary. When I do the
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cleaning, I am thorough because I know that I am at high risk for serious illness or death from COVID-19. But other prisoners are not as careful as I am, if they even remember to clean at all. I am worried that door knobs, surfaces, bathroom sinks and showers, and the phone area, are not thoroughly cleaned (if they are cleaned at all), and that the virus could spread on surfaces in those locations.
a. We do not have any bleach or bleach-based materials to clean. Instead, the cleaning materials that DOC provides are: Correct Pac Glass Cleaner, Eco Lab High Performance Floor Cleaner, and Eco Lab Neutral Bathroom Cleaner. There has not been any change in the cleaning materials since we learned about COVID19.
20. We have access to soap and hand sanitizer to clean our hands. For weeks, I have been using the hand sanitizer to help protect me from COVID-19, because I was told that hand sanitizer can kill the virus.
a. But I recently learned that the hand sanitizer that DOC provides does not have any alcohol in it, and is not the type of hand sanitizer that the CDC has said would be effective against the virus. The type of hand sanitizer that we have access to is Deb Instant Foam Pure – no alcohol. I feel upset that DOC was giving me wrong information about how to protect myself against COVID-19.
b. The only place to wash my hands is in the bathroom that is shared among approximately 50 people.
21. All prison staff and prisoners now have access to masks, but most people do not wear masks most of the time, including in the dorm surrounded by 50+ people.
a. There is no enforcement of any requirements for prisoners to wear masks in the dorm, which has approximately fifty prisoners, plus officers.
b. The masks that are provided to prisoners look like they are made of the same material as our boxer shorts, with elastics on both sides. After a couple times being washed, they are already falling apart.
22. Even though I try to stay away from other people as much as possible, there are many times each day when I cannot avoid close contact with other people.
a. I wake up each morning in my cell with three other inmates close by, including in the top bunk right over my bottom bunk, and another bunk bed nearby.
b. When traveling throughout the facility, whether going to meals or to get medication, we are bunched up together and keeping distance is impossible.
c. We go to the meal hall every other day. During meal times, we are supposed to eat six feet apart from each other in the meal hall, but in traveling to the meal hall, we are bunched up together, heel-to-heel, because there is not enough space. We aren’t supposed to be around other dorms, but another dorm usually comes into the meal hall before we’re finished eating. That’s even more people that I’m exposed to many days of the week.
d. I receive medication for addiction treatment (MAT). To get that medication, I go to another building and sit in a small room with seven other prisoners, none of us
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wearing masks. The officers get really close to all of us to look in our mouths and to make sure that we are following the rules.
e. During the day, approximately fifty inmates share common areas in the dorm. One common room is about 16 by 18 feet, and the second room is about 10 by 15 feet. People hang out in there playing cards or watching TV. People are usually right on top of each other. Sometimes up to 9 people are in a day room and not wearing masks. It is impossible to physically distance in that space.
f. We are also crowded together when waiting to use the phones, which are basically our only way to communicate with our families, friends, or lawyers, now that visitation is cancelled. The phone area is especially crowded during the evenings and there is nobody cleaning the phones between uses. I try to protect myself by using antiseptic wipes on the phone before I use them, but I do not even know whether the wipes are effective to kill the virus.
23. I am afraid that even if other prisoners get sick, they will try to hide it (and infect the rest of us) because they’re afraid of going to “seg.” DOC has not told us their plan for people who are sick with COVID-19 and people assume that if they start showing signs of a fever or other symptoms, they will be put in isolation or in segregation. I have heard several people say that, if they start to feel symptoms, they will try to hide it so that they will not have to go to seg.
24. DOC continues to transfer people between dorms, including moving people between medium security and minimum security dorms. When people are moved between housing units, they are not quarantined or isolated for fourteen days. They are immediately part of the general population in the new dorm.
25. The staff here go through the motions for social distancing, but they do not take the risk of infection seriously. I have heard several officers say that they do not think the virus will get in here. Other staff say that the prison is the safest place that you can be. The other day, one of the officers told us that there were only supposed to be five people outside, but then said “what’s the difference . . . you’re all mingled together all day anyway.” I heard another officer say “they’re just going through the motions.”
26. DOC tries to keep us limited to our dorm, but I am still worried that the staff could quickly spread the disease between the dorms. Officers from many different dorms congregate together and then travel to and from the dorms all around the facility. Not to mention that the staff travel to and from the community every day. I am afraid that, with the reopening, staff are more likely to get infected in the community and to bring the virus into the facility and spread it around all the dorms. If the virus got in, I am afraid it would spread like wildfire.
Case in State Court
27. On March 13, 2020, my lawyer filed a case in state court that I thought might protect me from COVID-19 and let me quarantine in the community. But now I’ve been waiting for more than four weeks without any word from the court or hearing scheduled.
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28. Every day that something doesn’t happen is another day COVID-19 could get here. I am afraid that every additional day I am in prison could be the day that I will become infected with COVID-19. I do not want to die in prison.
29. I have provided my attorney with authority to use my electronic signature.
30. I declare under penalty of perjury that the foregoing is true and correct.

Dated May 9, 2020

/s/ Joseph Denbow Joseph Denbow

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,

Petitioners, v.

Case No. ____________

RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity, MAINE DEPARTMENT OF CORRECTIONS,

Respondents

DECLARATION OF SEAN RAGSDALE
I, Sean Ragsdale, am over the age of 18 and fully competent to make the following declaration:
1. I am currently incarcerated in the Maine Department of Corrections (DOC), Mountain View Correctional Facility. My DOC number is 126457. I was convicted of drug trafficking and have served almost all of my four-year sentence. My earliest release date is July 17, 2020. Once I am released, I will remain supervised by the DOC during three years of probation.
2. I have seen news reports of outbreaks of COVID-19 in prisons across the country. I understand that COVID-19 can be transmitted by people who do not show symptoms of the disease and I am afraid that there may be a current, undetected outbreak in Mountain View facility, or an outbreak at some point before I am released from prison in July 2020.
3. I am scared that I will get infected with COVID-19 in the next two months, and could get sick and die before I am released. I just want to keep myself safe by physically distancing in the community.
Medical Conditions and History
4. I am 56 years old. I have a long-term chest infection, diabetes, Hepatitis C, and MRSA (a blood infection). I use an inhaler for my chest infection, to open up my lungs so I can breathe. I also inject insulin twice a day as treatment for my diabetes. I have liver damage as a result of Hepatitis C and am not provided medication by DOC to treat Hepatitis C.
5. I got the chest infection because DOC assigned me to work in the boiler room under dangerous conditions. The boiler room heats one side of the entire prison. The job was to take four-foot lengths of wood that weigh more than 100 pounds with ice and snow from
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outside and throw it in the boiler. I was assigned to this job for about four months, from September 2019 to mid-February 2020. During that time, I developed a chest infection, but I wasn’t allowed to stop doing that job until I got a medical work hold. Even then, DOC gave me a disciplinary write-up for stopping work.
6. I also have multiple diagnosed mental illnesses, including schizophrenia, bipolar, and post-traumatic stress disorder.
7. As a result of my physical and mental disabilities, I previously received Social Security income (SSI). This income was paused during my time in prison, but I have applied to have the income restarted upon my release and expect to receive a decision within the next few days.
Home Confinement and Medical Furlough
8. I am classified as “community” level supervision, which means that the DOC has approved me to work in the community. But for the COVID-19-related restrictions, I would be authorized to work in the community during the day and return to the prison at night.
9. I applied for Supervised Community Confinement, but did not receive any response for about a month. The person responsible for reviewing the SCCP requests was out sick for two weeks and nobody else was assigned to review the requests.
10. My lawyer sent a demand letter on May 4th, asking for release on SCCP or medical furlough, or for another accommodation under the Americans with Disabilities Act. The next day, I received a message from Diana Whyte, a secretary of classification at the Mountain View Facility that they had reviewed my request and provided another packet for me to fill out that will be transferred to Augusta for further review. I am still not approved for SCCP or medical furlough and the process could take a long time. The DOC said that “[t]here is no guarantee that your application will be processed immediately” and that “[a]t this time very limited home investigations are being done.” “If it is not done now, it will be done when normal operations resume.” I am afraid that “normal operations” means operations after the risk from COVID-19 has passed, which could be a very long time. I am afraid that “normal operations” will not return until after it is too late for me.
11. I am going to be released anyway in approximately two months and I will be safer if I am released (and allowed to physically distance) in the community before I am exposed and infected with COVID-19.
Conditions in the Prison 12. DOC policies and facilities make social distancing impossible. I am afraid that the morethan-fifty people who I have close contact with each day could be carrying or spreading the virus.
13. I share a dorm, common rooms, sinks, showers, and toilets, with approximately 50 other inmates. Although there are upstairs and downstairs bathrooms, my cell is on the lower
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floor, where the common rooms are, and many prisoners use the downstairs bathrooms while they are using the common rooms.
14. I sleep in an approximately 10 foot by 10 foot cell with three other prisoners. Another prisoner sleeps in the bunk right on top of me. Two other people are across the room. I have no way of knowing whether the other people in my cell have done a thorough job of washing their hands, or whether they may be carrying the virus.
15. I have no idea whether other prisoners or staff could have the virus. As to prison staff, DOC states that they do temperature checks and symptom-screening of staff when they arrive at the facility. But DOC does not provide us with information about testing for prison staff. Some guards have been staying home lately. I do not know whether the officers are staying home because they have symptoms of the disease. I saw news reports that an officer at Bolduc tested positive, but I do not know whether any of the officers at Mountain View have tested positive.
16. I have read that COVID-19 can live on surfaces for days and I am afraid that the virus could be living on surfaces throughout the dorm (including in the shared bathrooms). Prisoners are assigned to clean the dorms several times a day, but there is no supervision to make sure people do a good job. When it is my turn to clean the dorms and bathrooms, I am thorough because I know that I am at high risk for serious illness or death from COVID-19. I clean the bathrooms and showers, which are often littered with used razors or other trash. I am worried that other prisoners are not as careful as I am, and I am worried that door knobs, surfaces, bathroom sinks and showers, and the phone area, are not thoroughly cleaned, and that the virus could spread on surfaces in those locations.
a. We do not have any bleach or bleach-based materials to clean the dorm. Instead, the cleaning materials that DOC provides are: Correct Pack Glass Cleaner, Eco Lab High Performance Floor Cleaner, and Eco Lab Neutral Bathroom Cleaner. There has not been any change in the cleaning materials since we learned about COVID-19.
17. We have access to soap and hand sanitizer to wash our hands. But the hand sanitizer that DOC provides does not have any alcohol in it, and is not the type of hand sanitizer that the CDC has said would be effective against COVID-19. The type of hand sanitizer that we have access to is Deb instant foam pure – no alcohol. The only place to wash my hands is in the bathroom that is shared among approximately 50 people.
18. All prison staff and prisoners now have access to masks, but most people do not wear masks most of the time, including in the dorm surrounded by 50+ people.
b. The masks that are provided to prisoners look like they are made of the same material as our boxer shorts, with elastics on both sides. After a couple times being washed, they already start to fall apart.
c. Although these masks are supposed to be washed each night and returned to us, DOC has misplaced my replacement mask. Since then, I have been unable to have my mask washed because there is no replacement. As a result, my mask has not been machine-washed for more than a week. I have had to wash my mask in the bathroom sink.
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d. DOC has also provided guards with masks, but many of them do not wear the masks when they are with each other or in their office, even though they travel to and from the facility each day and could be carrying the infection into the facility.
e. None of the guards or prisoners have N-95 masks.
19. Even though I try to stay away from other people as much as possible, there are many times each day when I cannot avoid close contact with other people. f. I live in a dorm with about fifty other inmates. During the day, those fifty people share common areas. The common areas are approximately 10 by 15 feet in size and there are two in the dorm. Most prisoners do not wear masks in the dorms. It is impossible to physically distance. g. I share a cell with three other prisoners. Nobody wears a mask when they sleep. h. I have to get my insulin injection twice a day. To get my insulin, I have to walk to the other end of the building and get machine-searched and pat-searched by one or more correctional officer. I get a shot from the nurse, who wears a homemade mask or scarf. Nurses do not have N-95 masks. The nurses wear gloves but no other protective equipment. The nurses do not change gloves between patients. a. If I was in my own apartment or room in the community, I could inject my insulin by myself at home.
i. There is a small outdoor space where people go to smoke and to be outside. It’s about 10 by 10 feet. People are right on top of each other. The officers do not ask people to wear masks outside.
j. When traveling throughout the facility, we are bunched up together and keeping distance is impossible. For example, during meal times, we are supposed to eat six feet apart from each other, but in traveling to and from the meal hall, we are bunched up together, heel-to-heel, because there is not enough space. On the days when we are in the meal hall, prisoners from another dorm often comes in before we are finished eating, so we are exposed to dozens of other people.
k. To get our medication, we have to travel to the medication line, where we stand lined up, bunched up. People wear masks in the medication line but take them off when they get to the medication window, in order to swallow the pills in front of the officer and the nurse. The nurses do not wear gloves during the medication line.
l. We are also crowded together when waiting to use the phones, especially at night. Now that all visitation is cancelled, the phones are one of the only ways that we can communicate with friends and family in the community, or talk with a lawyer. The phone area is crowded and there is nobody cleaning the phones between uses. This area is visibly dirty and smell bad. But there is no other way that I can contact family members or my attorney.
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m. About two weeks ago, there was a fire drill in which prison and staff— approximately 60 people in total—were crammed together outside of dorm 3. Maintaining physical distance was impossible.
20. DOC continues to transfer people between dorms, including moving people between medium security and minimum security dorms. When people are moved between housing units, they are not quarantined or isolated for fourteen days. They are immediately part of the general population in the new dorm.
21. I am afraid that even if other prisoners get sick, they will try to hide it (and infect the rest of us) because they’re afraid of going to “seg.” DOC has not told us their plan for when people get sick with COVID-19 and people assume that if they start showing signs of a fever or other symptoms, they will be put in isolation or in segregation. I have heard several people say that, if they start to feel symptoms, they will try to hide them so that they will not have to go to segregation or isolation.
22. DOC tries to keep us limited to our dorm, but I am still worried that the staff could quickly spread the disease between the dorms. Officers from many different dorms congregate together and then travel to and from the dorms all around the facility. Not to mention that the staff travel to and from the community every day. I am afraid that, with the reopening of the economy, staff are more likely to get infected in the community and to bring the virus into the facility and spread it around all the dorms. If the virus got in, I am afraid it would spread like wildfire.
23. I have provided my attorney with authority to use my electronic signature.
24. I declare under penalty of perjury that the foregoing is true and correct.

Date: May 13, 2020

/s/ Sean Ragsdale Sean Ragsdale

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,

Petitioners, v.

Case No. ____________

RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity, MAINE DEPARTMENT OF CORRECTIONS,

Respondents

DECLARATION OF ROY GIBSON PARRISH, MD I, Roy Gibson Parrish, declare as follows:
1. I am a medical doctor with 35 years of experience as an epidemiologist. From 1982 through 2002, I served as a medical epidemiologist at the U.S. Centers for Disease Control and Prevention, including as the Acting Director of the Division of Public Health Surveillance and Informatics. Since leaving the CDC, I have worked as an independent consultant in population health and population health information systems, continuing to publish and make presentations around the country. From 2003 to 2011, I served as an Adjunct Associate Professor of Community and Family Medicine at Dartmouth Medical School, and from 2013 to the present, I have served on the Adjunct Faculty at the University of New Hampshire. I also currently teach classes at the Maine Medical Center. Attached as Exhibit A is a copy of my curriculum vitae.
COVID-19 Is a Highly Transmissible and Potentially Deadly Virus 2. COVID-19 is highly contagious and potentially deadly infection caused by the novel
coronavirus SARS-COV-2. The following graph shows estimates of the virus’s reproduction 1

Case 1:20-cv-00175-JAW Document 1-9 Filed 05/15/20 Page 2 of 19 PageID #: 131 number (i.e., the average number of people who will contract a contagious disease from one person with that disease) and its fatality rate, based on existing knowledge about this novel virus. A higher contact rate between an infectious person and susceptible persons will contribute to a higher reproduction number—a factor that contributes to the rapid spread of the virus in closed, congregate settings like nursing homes, prisons, and jails.
3. According to the World Health Organization, as of May 12, 2020, there were more than four million confirmed cases worldwide, with more than 280,000 deaths.1 The United
1 Situation Report, World Health Organization (May 12, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200512-covid-19sitrep-113.pdf?sfvrsn=feac3b6d_2.
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States now has the highest number of reported cases in the world, with approximately 1,364,061 total cases, and 82,246 total deaths as of May 13, 2020.2 In Maine, there were
1,515 confirmed cases and 66 deaths, as of May 13, 2020, though case numbers “are likely being undercounted.”3
4. COVID-19 is a serious disease, which clinically can range from no or mild symptoms to
respiratory failure and death. Symptoms can include cough, shortness of breath or
difficulty breathing, fever, muscle pain, headache, sore throat, and new loss of taste or smell.4
5. Complications of the disease include pneumonia, respiratory failure, acute respiratory distress syndrome (ARDS), acute cardiac injury, multiple organ failure, and death.5 Of
the patients who experience pneumonia, some develop a dangerous condition known as ARDS, which causes damage to the walls of the air sacs in the lungs.6 COVID-19 can
severely damage the lung tissue, requiring an extensive period of rehabilitation and in
some cases a permanent loss of respiratory capacity. Pneumonia is also associated with
2 Cases in the US, U.S. Centers for Disease Control and Prevention (May 12, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. 3 Novel Coronavirus 2019 (COVID-19), Maine Center for Disease Control and Prevention, https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus.shtml; Steve Craig, Maine CDC reports 33 new coronavirus cases, 1 more death, Portland Press Herald (May 3, 2020), https://www.pressherald.com/2020/05/03/maine-cdc-reports-33-new-cases-one-death/. 4 Symptoms of COVID-19, U.S. Centers for Disease Control and Prevention (last visited May 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html. 5 Zhao, et al., A comparative study on the clinical features of COVID-19 pneumonia to other pneumonias (2020), https://bit.ly/3b5QhRp; Fei Zhou, et al., Clinical Course and Risk Factors for Mortality of Adult Inpatients With COVID-19 in Wuhan, China: A Retrospective Cohort Study, Lancet (Mar. 28, 2020), available at https://www.thelancet.com/pdfs/journals/lancet/PIIS0140-6736(20)30566-3.pdf. 6 https://health.clevelandclinic.org/heres-the-damage-coronavirus-covid-19-can-do-to-yourlungs/.
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cardiac complications, “including new or worsening heart failure, new or worsening arrhythmia, or myocardial infarction.”7 There is also emerging evidence that the virus can trigger an over-response by the immune system in infected people, which can result in widespread damage to other organs,8 including permanent injury to the kidneys (leading to dialysis dependence), liver, or neurologic injury. 6. COVID-19 is highly contagious and can spread “very easily and sustainably between people.”9 “The virus is thought to spread mainly from person-to-person” between people who are “in close contact with one another.”10 The virus can travel “[t]hrough respiratory droplets produced when an infected person coughs, sneezes or talks,” even by people who are not showing symptoms.11 It is also “possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes.”12 “COVID-19 can live for hours or days on a surface, depending on factors such as sun light and humidity.”13
7 Riccardo Inciardi, Cardiac Involvement in a Patient with Coronavirus Disease 2019, JAMA Cardiology (Mar. 27, 2020), https://jamanetwork.com/journals/jamacardiology/fullarticle/2763843; Fei Zhou, Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study, The Lancet (Mar. 9, 2020) https://www.thelancet.com/pdfs/journals/lancet/PIIS0140-6736(20)30566-3.pdf. 8 John B. Moore and Carl H. June, Cytokine release syndrome in severe COVID-19, Science (May 1, 2020), https://science.sciencemag.org/content/368/6490/473. 9 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html. 10 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html. 11 Id. 12 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html. 13 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.
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Older People and People with Underlying Medical Conditions Are At Particularly High Risk
7. As of March 11, 2020, the World Health Organization (WHO) identified individuals at
highest risk to include “older people” and “those with underlying medical conditions.”14
“The risk of severe disease gradually increases with age starting from around 40 years.”
8. According to the CDC, people at higher risk for severe illness from COVID-19 include
older people and “[p]eople of all ages with underlying medical conditions, particularly if
not well controlled,” including:
a. People with chronic lung disease (including chronic obstructive pulmonary disease) or moderate to severe asthma
b. People who have serious heart conditions c. People who are immunocompromised
i. Conditions that can cause a person to be immunocompromised include cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
d. People with severe obesity (body mass index [BMI] of 40 or higher) e. People with diabetes f. People with chronic kidney disease undergoing dialysis g. People with liver disease.15 9. Early reports estimate that the mortality rate for those with cardiovascular disease was
13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease,
and 7.6% for cancer.16
14 See Situation Report, World Health Organization (March 11, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200311-sitrep-51covid-19.pdf?sfvrsn=1ba62e57_10 (accessed May 4, 2020). 15 People Who Are At Higher Risk, Centers for Disease Control and Prevention (last visited May 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html 16 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), page 12, at https://cutt.ly/KtD3ALr (“While patients who
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COVID-19 Poses Extreme Risks in Closed Congregate Settings like Maine’s Prisons
10. DOC facilities are closed congregate settings in which COVID-19 is likely to spread
rapidly once it enters a facility, despite attempts at infection control within each facility.17
By their very nature, prisons are at high risk for the spread of infectious disease.18 As of
April 21, 2020, “among 37 jurisdictions reporting, 32 (86%) reported at least one
confirmed COVID-19 case among incarcerated or detained persons or staff members,
across 420 correctional and detention facilities.”19 Even for those facilities that had not
yet reported any confirmed cases of COVID-19, it is likely that at least some were
already experiencing undetected asymptomatic or presymptomatic transmission.
11. It is well-documented that COVID-19 spreads rapidly in other closed congregate settings,
like homeless shelters, nursing homes, and cruise ships, even with certain hygiene
protections in place.20 The chart below demonstrates the spread of the virus on the
Diamond Princess cruise ship:
reported no comorbid conditions had a CFR of 1.4%, patients with comorbid conditions had much higher rates: “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer”). 17 Matthew J. Akiyama, et al., Flattening the Curve for Incarcerated Populations — Covid-19 in Jails and Prisons (Apr. 2, 2020), https://www.nejm.org/doi/full/10.1056/NEJMp2005687. 18 Megan Wallace, COVID-19 in Correctional and Detention Facilities – United States, February-April 2020, U.S. Centers for Disease Control and Prevention (May 6, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e1.htm?s_cid=mm6919e1_w. 19 Id. 20 See, e.g., Leah F. Moriarty, et al., Public Health Responses to COVID-19 Outbreaks on Cruise Ships – Worldwide, February-March 2020 (Mar. 27, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e3.htm (discussing the outbreak of COVID19 on the Diamond Princess cruise ship); Pengcheng Xu, et al., Transmission routes of Covid-19 virus in the Diamond Princess Cruise ship (Apr. 9, 2020), https://www.medrxiv.org/content/10.1101/2020.04.09.20059113v1; Temet M. McMichael, et al. COVID-19 in a Long-Term Care Facility – King County Washington, Feb. 27-Mar. 9, 2020 (Mar. 27, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e1.htm.
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12. As demonstrated by past outbreaks of infectious disease, the prison setting presents serious risks of the rapid spread of COVID-19 within facilities.21 In the Maine Department of Corrections specifically, a seasonal flu epidemic sickened a large number of inmates and staff in 2011, even killing one prisoner.22 The risk is that an outbreak of COVID-19 in the same facilities could be even deadlier.
21 Akiyama, supra n. 36 (stating “Highly transmissible novel respiratory pathogens pose a new challenge for incarcerated populations because of the ease with which they spread in congregate settings. Perhaps most relevant to the Covid-19 pandemic, the 2009 H1N1 influenza pandemic exposed the failure to include jails in planning efforts.”). 22 Influenza Outbreaks at Two Correctional Facilities – Maine, March 2011, Centers for Disease Control and Prevention (Apr. 6, 2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm.
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13. The high rates of chronic disease among prisoners means that any such outbreak could be particularly serious and potentially deadly. “Half of all incarcerated persons have at least one chronic disease, and according to the U.S. Department of Justice, 81,600 are over the age of 60, factors that increase the risk of poor outcomes of infection.”23 “Populations involved with the criminal justice system have an increased prevalence of infectious diseases such as HIV and hepatitis C virus (HCV) infections and tuberculosis.”24 “Disparities in social determinants of health affecting groups that are disproportionately likely to be incarcerated — racial minorities, persons who are unstably housed, persons with substance use disorders or mental illness — lead to greater concentrations of these illnesses in incarcerated populations.”25
14. “Social distancing is extremely challenging” in prison settings.26 The Maine Department of Corrections has acknowledges that “[a] correctional facility, by nature, is challenged by the practice of physical distancing.” 27 Even considering some of the precautions to limit physical contact with members of the community, “infected persons — including staff members — will continue to enter correctional settings,” and can introduce the disease in the prison setting.28
23 Akiyama, supra n. 36 (citing Maruschak LM, Berzofsky M, Unangst J. Medical problems of state and federal prisoners and jail inmates, 2011–12. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics. February 2015 (https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf). 24 Akiyama, supra, n. 36. 25 Id. 26 Akiyama, supra, n. 36. 27 State of Maine Department of Corrections PRESS RELEASE, March 25, 2020, available at https://www.maine.gov/corrections/home/Press%20Release.%20DOC%20response%20to%20G OV%20EO%20(003).pdf (last accessed May 4, 2020). 28 Id.
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15. In light of these risks, a recent article explained that “three levels of preparedness need to be addressed: the virus should be delayed as much as possible from entering correctional settings; if it is already in circulation, it should be controlled; and jails and prisons should prepare to deal with a high burden of disease.”29 Public health experts have emphasized that a key part of this preparation must include “‘decarcerating,’ or releasing, as many people as possible, focusing on those who are least likely to commit additional crimes, but also on the elderly and infirm.”30
Physical Distancing Is Crucial to Prevent Spread of the Virus 16. There is no vaccine to prevent COVID-19, nor is there any known cure. An initial multicenter clinical trial suggests that remdesivir may shorten the time to clinical improvement in severely ill COVID-19 patients, but this finding requires confirmation in larger studies.31 The focus thus remains on mitigation and prevention. “The best way to prevent illness is to avoid being exposed to the virus.”32 To prevent new infections, the CDC strongly recommends thorough and frequent handwashing, cleaning surfaces with
29 Id. 30 Id. 31 Wang Y, Zhang D, Du G, Du R, Zhao J, Jin Y, et al. Remdesivir in adults with severe COVID-19: a randomised, double-blind, placebo-controlled, multicentre trial. Lancet, Published:April 29, 2020 DOI:https://doi.org/10.1016/S0140-6736(20)31022-9. Available at: https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)31022-9/fulltext. 32 Protect Yourself, Coronavirus Disease 2019 (COVID-19), U.S. Centers for Disease Control and Prevention (last visited May 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/preventgetting-sick/prevention.html.
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EPA-approved disinfectants, keeping at least six feet of space between people, and avoiding group settings.33
17. “Limiting face-to-face contact with others is the best way to reduce the spread of coronavirus disease 2019 (COVID-19).”34 “To practice social or physical distancing,” the
CDC instructs that people “[s]tay at least 6 feet . . . from other people, [d]o not gather in groups,” and “[s]tay out of crowded places and avoid mass gatherings.”35 “Social
distancing is recommended for all ages to slow the spread of the virus, protect the health care system, and help protect vulnerable older adults.”36
18. To practice physical distancing, the CDC recommends (among other things) “avoid[ing]
large and small gatherings in private places and public spaces, such a friend’s house,
parks, restaurants, shops, or any other place,” as well as “avoid[ing] using any kind of public transportation, ridesharing, or taxis.”37
19. “Social distancing is especially important for people who are at higher risk of getting very sick.”38
33 Protect Yourself, Coronavirus Disease 2019 (COVID-19), U.S. Centers for Disease Control and Prevention (last visited May 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/preventgetting-sick/prevention.html. 34 Social Distancing, U.S. Centers for Disease Control and Prevention (last visited May 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html. 35 Id. 36 CDC COVID-19 Response Team, Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) – United States, February 12-March 16, 2020, U.S. Centers for Disease Control and Prevention (Mar. 27, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm. 37 Social Distancing, U.S. Centers for Disease Control and Prevention (last visited May 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html. 38 Social Distancing, U.S. Centers for Disease Control and Prevention (last visited May 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.
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Testing and Asymptomatic Transmission
20. The need for physical distancing is particularly high because, in the absence of
widespread testing, the virus could spread rapidly among asymptomatic carriers before
any outbreak is detected. Symptoms of COVID-19 may appear “2-14 days after exposure to the virus.”39 As the CDC warns, “[s]ince people can spread the virus before they know
they are sick, it is important to stay away from others when possible, even if you have no symptoms.”40 “Recent studies indicate that people who are infected but do not have symptoms likely also play a role in the spread of COVID-19.”41 Indeed, “[a] key factor in
the transmissibility of Covid-19 is the high level of SARS-CoV-2 shedding in the upper respiratory tract, even among presymptomatic patients.”42
21. For example, a study about COVID-19 in a skilled nursing facility in Washington State
revealed “[r]apid and widespread transmission of SARS-CoV-2,” with “[m]ore than half
of residents with positive test results [being] asymptomatic at the time of testing and most likely contribut[ing] to transmission.”43 Only twenty-three days after the first resident of
39 Symptoms, U.S. Centers for Disease Control and Prevention (last visited May 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html. 40 Social Distancing, U.S. Centers for Disease Control and Prevention (May 12, 2020) https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html. 41 Id.; see also Melissa Arons, et al., Presymptomatic SARS-CoV-2 Infections and Transmission in a Skilled Nursing Facility, New England Journal of Medicine (Apr. 24, 2020), https://www.nejm.org/doi/full/10.1056/NEJMoa2008457. 42 Monica Ghandi, et al., Asymptomatic Transmission, the Achilles’ Heel of Current Strategies to Control Covid-19 (Apr. 24, 2020), https://www.nejm.org/doi/full/10.1056/NEJMe2009758 (discussing see also Melissa Arons, et al., Presymptomatic SARS-CoV-2 Infections and Transmission in a Skilled Nursing Facility, New England Journal of Medicine (Apr. 24, 2020), https://www.nejm.org/doi/full/10.1056/NEJMoa2008457). 43 Melissa Arons, Presymptomatic SARS-CoV-2 Infections and Transmission in a Skilled Nursing Facility (Apr. 24, 2020), https://www.nejm.org/doi/full/10.1056/NEJMoa2008457.
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the nursing home tested positive, this facility “had a 64% prevalence of COVID-19 among residents . . . despite early adoption of infection-control measures.”44 Accordingly, the study concluded that “[i]nfection-control strategies focused solely on symptomatic residents were not sufficient to prevent transmission after SARS-CoV-2 introduction into this facility.”45 22. Similarly, another study was conducted of a homeless shelter in Boston, in which “[t]he congregate nature and hygienic challenges of shelter life create the potential for rapid transmission of SARS-CoV-2 in this vulnerable population.”46 Widespread testing in this facility revealed 36% positive tests (147 out of 408 people tested), with the vast majority of people having few or no symptoms of COVID-19 at the time they tested positive.47 This study likewise concluded that “COVID-19 can be widely transmitted in a homeless shelter setting, even when infection control vigilance is high.”48 Study findings suggest that universal testing may be better than “a symptom triggered approach . . . for identifying and mitigating COVID-19 among people experiencing homelessness.”49 23. Widespread testing in prison facilities shows even higher rates of positive tests. For example, after widespread testing, 73% of inmates at an Ohio prison recently tested
44 Id. (emphasis added). 45 Id. 46 Travis P. Baggett, et al., COVID-19 outbreak at a large homeless shelter in Boston: Implications for universal testing, https://www.medrxiv.org/content/10.1101/2020.04.12.20059618v1. 47 Id.
48 Id. (emphasis added).
49 Id. 12

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positive for coronavirus.50 As reported, “[n]o other state has reported as many cases of COVID-19 behind bars as Ohio, in large part because no other state has tested as many inmates as Ohio.”51 Actions by Maine Department of Corrections 24. Physical Distancing: The CDC guidance on the COVID-19 response in prisons and jails is to “[i]mplement social distancing.”52 As the CDC explains, “[a]lthough 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.”53 Especially for medically vulnerable people like those in the CDC high-risk group, it is medically necessary that they are able to physically distance, stay away from large groups, and remain six feet away from others at all times. Based on Petitioners’ declarations provided to me, it appears that these measures are not possible under current conditions in Maine DOC facilities. 25. Hygiene: Based on Petitioners’ declarations, DOC does not provide alcohol-based hand sanitizer, as the CDC recommends.54 Unlike hand sanitizer with more than 60% alcohol, the CDC has not found that hand sanitizer with less alcohol (or no alcohol) is effective to
50 Bill Chappell, 73% Of Inmates At An Ohio Prison Test Positive For Coronavirus, NPR (Apr. 20, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/04/20/838943211/73-ofinmates-at-an-ohio-prison-test-positive-for-coronavirus. 51 Id. 52COVID-19 Guidance for Correctional & Detention Facilitie, U.S. Centers for Disease Control and Prevention (May 11, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html. 53 Id. 54 Hand Hygiene, U.S. Centers for Disease Control and Prevention (last accessed May 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/hand-hygiene.html.
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reduce the number of pathogens (including the SARS-CoV-2 virus) that may be present on the hands.55 26. Masks: The most important fact to remember about masks is that, although they may offer some protection for the wearer, the primary benefit is to reduce the likelihood that a person already infected with COVID-19 will not unknowingly pass COVID-19 on to others.56 Even for this benefit, “[m]ultiple layers of fabric are better than only one,” because “[m]ore layers means less chance that viral particles will be able to pass through.”57 Masks are no substitute for necessary preventive measures like physical distancing. 27. Testing: Given the Department of Corrections’ practice of testing only symptomatic prisoners, the fact that there are no current positive tests of COVID-19 of prisoners in the facilities does not mean that the facilities are safe. The prevalence of asymptomatic transmission of COVID-19 means that there may already be prisoners or prison staff in the various facilities who are asymptomatic carriers of COVID-19 and are spreading it, undetected, throughout the facilities. An approach to testing that does not account for
55 The CDC has clarified that it “does not have a recommended alternative to hand rub products with greater than 60% ethanol or 70% isopropanol as active ingredients. Benzalkonium chloride, along with both ethanol and isopropanol, is deemed eligible by FDA external icon for use in the formulation of healthcare personnel hand rubs. However, available evidence indicates benzalkonium chloride has less reliable activity against certain bacteria and viruses than either of the alcohols.” Id. 56 Catherine Roberts, How to Choose and Wear a Mask During the Coronavirus Pandemic, Consumer Reports (Apr. 24, 2020), https://www.consumerreports.org/coronavirus/how-tochoose-and-wear-a-mask-during-the-coronaviruspandemic/?EXTKEY=YSOCIAL_PAIDPROMO_FB. 57 Id.
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asymptomatic or pre-symptomatic spread of the virus cannot show the full picture of the outbreak. 28. The current plan for a phased reopening of the economy could present additional risks. A study from the 1918 influenza pandemic suggests that premature reopening could increase the spread of infection in the community into the prison as well.58 If anything, the phased reopening of the economy places prisoners at greater risk of infection than before. 29. Department of Corrections has engaged in “pre-planning with local hospitals” to prepare for a potential outbreak.59 The high proportion of medically vulnerable individuals in the prison means that, in the event of an outbreak in prison, a disproportionate number of these individuals could require hospital-level care, which would not only be expensive and consume scarce medical resources, but also could expose medical staff and the greater community to additional risk. Improved Preventive Measures are Needed for At-Risk and Other Individuals 30. Preventive measures can have a protective effect on the population as a whole, as well as being clinically necessary for an individual patient. For example, “[v]accines work on both an individual basis, by preventing or attenuating clinical disease in a person exposed
58 Howard Markel, MD, PhD., Nonpharmaceutical Interventions Implemented by US Cities During the 1918-1919 Influenza Pandemic, JAMA (Aug. 8, 2007), https://jamanetwork.com/journals/jama/fullarticle/208354. 59 Statement from Randall A. Liberty, Commissioner Department of Corrections, March 25, 2020, available at https://www.maine.gov/corrections/home/3.27.20%20Statement%20from%20Commisioner%20 Liberty.pdf (last accessed May 4, 2020).
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to the pathogen, and also on a population basis, by affecting herd immunity.”60 When it comes to COVID-19, physical distancing is critical to protect the community as a whole from widespread transmission of the virus. Additionally, the same preventive measures are important for medically vulnerable individuals at particular risk of serious illness or death from COVID-19. 31. This interplay between public health and individual clinical need is the focus of clinical epidemiology. “Clinical epidemiology is the application of epidemiological principles and methods to the practice of clinical medicine.”61 “Because epidemiology deals with populations and clinical medicine deals with individuals, it has been suggested that clinical epidemiology is a contradiction in terms. However, clinical epidemiology is simply concerned with a defined patient population rather than the usual communitybased population.”62 32. Two of the central concerns in clinical epidemiology include (1) “effectiveness of treatment” and (2) “prevention in clinical practice.”63 As to the first, “[s]pecific treatments need be shown to do more good than harm among patients who actually use them: this is called efficacy.”64 However, as discussed above, there is no effective
60 R. Bonita, et al., BASIC EPIDEMIOLOGY at 119, World Health Organization (2d ed) (2006) available at https://apps.who.int/iris/bitstream/handle/10665/43541/9241547073_eng.pdf?sequence=1. 61 R. Bonita, et al., BASIC EPIDEMIOLOGY at 133, World Health Organization (2d ed) (2006) available at https://apps.who.int/iris/bitstream/handle/10665/43541/9241547073_eng.pdf?sequence=1. 62 Id. 63 Id. 64 R. Bonita, et al., BASIC EPIDEMIOLOGY at 139, World Health Organization (2d ed) (2006) available at https://apps.who.int/iris/bitstream/handle/10665/43541/9241547073_eng.pdf?sequence=1.
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treatment for COVID-19. That makes the second element—prevention—all the more clinically important. 33. Prevention of disease is a cornerstone of clinical practice and public health. This is no less true in the midst of a deadly pandemic. There are different levels of prevention. Primary prevention is designed “to limit the incidence of disease by controlling specific causes and risk factors.”65 Secondary prevention aims to reduce the more serious consequences of disease through early diagnosis and treatment.”66 “Tertiary prevention is aimed at reducing the progress or complications of established disease,” and often overlaps with treatment of chronic disease.67 34. In the case of COVID-19, primary prevention through adequate and continuous physical distancing, use of masks, and good hand hygiene, early diagnosis through testing of symptomatic and asymptomatic individuals, and isolation of infected persons with quarantine of their contacts are critical to containing COVID-19, especially in light of the risk of asymptomatic transmission of the virus. That said, the Department of Corrections has not been able to provide adequate physical distancing of inmates and staff (as described in Petitioners’ declarations provided to me) and has tested only a small percentage of the total population (24 out of 1,938),68 focusing only on symptomatic
65 R. Bonita, et al., BASIC EPIDEMIOLOGY at 103, World Health Organization (2d ed) (2006) available at https://apps.who.int/iris/bitstream/handle/10665/43541/9241547073_eng.pdf?sequence=1. 66 R. Bonita, et al., BASIC EPIDEMIOLOGY at 109, World Health Organization (2d ed) (2006) available at https://apps.who.int/iris/bitstream/handle/10665/43541/9241547073_eng.pdf?sequence=1. 67 Id. 68 Daily Dashboard, Maine Dep’t of Corrections (May 11, 2020), https://www.maine.gov/corrections/home/MDOC%20COVID19%20Web%20Dashboard%20511-2020.pdf.
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cases.69 These measures are insufficient in light of what would likely be a high rate of COVID-19 transmission in a closed congregate prison setting—meaning that asymptomatic and pre-symptomatic cases could transmit disease widely and trigger an outbreak of COVID-19 even before the first positive case was detected. 35. The absence of adequate primary prevention and testing in DOC facilities, plus the absence of any treatment or vaccine for COVID-19, makes enhanced measures of primary prevention of paramount importance. To protect medically vulnerable individuals—as well as other individuals and staff—it is necessary to be able to engage in adequate physical distancing at all times. When physical distancing is not possible in one setting, people should be moved out of that setting to the greatest extent possible. For example, physical distancing is generally not possible in K-12 schools, so state and local governments across the country have reasonably decided to close schools and to provide education remotely. In other risky settings such as prisons, all available options should be considered for transferring people (especially those who are medically vulnerable to serious illness or death) to another setting in which they can safely perform adequate physical distancing. 36. To the extent the Department of Corrections is failing to ensure physical distancing (as described in Petitioners’ declarations provided to me), they are failing to provide necessary measures to prevent COVID-19, especially for the most medically vulnerable prisoners. It is inappropriate to take a wait-and-see approach to COVID-19. There is no
69 Megan Gray, Maine prisons pressured to release more inmates, and information, during pandemic, Portland Press Herald (May 3, 2020), https://www.pressherald.com/2020/05/03/maine-prisons-pressured-to-release-more-inmates-andmore-information-during-pandemic/ (stating that “[n]o tests were necessary for COVID-19 as no clients or staff became symptomatic as a result of exposure” to an employee who tested positive).
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Case 1:20-cv-00175-JAW Document 1-9 Filed 05/15/20 Page 19 of 19 PageID #: 148 effective medical treatment for the virus itself and available interventions—including oxygen support and ventilators—are expensive and scarce. Medically vulnerable individuals are the most likely to need these types of intensive care. Failing to provide adequate preventive care for medically vulnerable prisoners could lead to serious illness and death, increased spread of the disease in the prison and the greater community, and greater burdens on scarce medical resources.
37. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 14th of May, 2020 /s/ R. Gibson Parrish R. Gibson Parrish, M.D.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,

Petitioners, v.
RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity, MAINE DEPARTMENT OF CORRECTIONS,

Case No. ____________

Respondents

DECLARATION OF JOSEPH GOLDENSON, MD I, Joseph Goldenson, MD, declare as follows: Background
1. I am a medical physician with 33 years of experience in correctional health care. For 28 years, I worked for Jail Health Services of the San Francisco Department of Public Health. For 22 of those years, I served as the Director and Medical Director. In that role, I provided direct clinical services, managed public health activities in the San Francisco County jail, including the management of HIV, tuberculosis, Hepatitis C, and other infectious diseases in the facility and the planning and coordination of the jail’s response to H1N1, and administered the correctional health enterprise, including its budget, human resources services, and medical, mental health, dental, and pharmacy services.
2. I served as a member of the Board of Directors of the National Commission on Correctional Health Care for eight years and am past President of the California chapter of the American Correctional Health Services Association. In 2014, I received the Armond Start Award of

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Excellence from the Society of Correctional Physicians, which recognizes its recipient as
a representative of the highest ideals in correctional medicine.
3. For 35 years, I held an academic appointment as an Assistant Clinical Professor at the
University of California, San Francisco.
4. I have worked extensively as a correctional health medical expert and court monitor. I have
served as a medical expert for the United States District Court for the Northern District of
California for 25 years. I am currently retained by that Court as a medical expert in Plata
v. Newsom, Case No. 3:01-cv-01351 (N.D. Cal.), to evaluate medical care provided to
inmate patients in the California Department of Correctional Rehabilitation. I have also
served as a medical expert and monitor at Cook County Jail in Chicago; Los Angeles
County Jail; at other jails in Washington state, Texas, and Florida; and at prisons in Illinois,
Ohio, and Wisconsin.
5. My curriculum vitae is attached as exhibit A.
6. Within the preceding four (4) years, I have testified as an expert by deposition or trial in
the following cases:
• Charlotte Diana Winkler v. Madison County, Kentucky, et al., United States District Court, Eastern District of Kentucky, Central Division at Lexington, Case No. 5:15-CV45-KKC, Deposition (June 2016)
• Jane Doe #1, et al. v. Johnson, et al., United States District Court for the District of Arizona, No. CV-15-00250-TUC-DCB, Hearing for Preliminary Injunction (November 2016)
• Eugene McCain v. St. Clair County, et al., United States District Court, Eastern District of Michigan, Southern Division, Case No. 2:16-cv-10112 (March 2017)
• Jane Doe #1, et al. v. Johnson, et al., United States District Court for the District of Arizona, No. CV-15-00250-TUC-DCB, Deposition (December 2017)
• The Estate of Rachel M. Hammers, Deceased, et al. v. Douglas County, Kansas Board of Commissioners, et al, District Court of Douglas County, Kansas at Lawrence, Case No. 2:14-CV-02188-JTM-KMH, Trial (June 2018)
• Jane Doe #1, et al. v. Johnson, et al., United States District Court for the District of Arizona, No. CV-15-00250-TUC-DCB, Trial (January 2020)
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The Nature of COVID-19 7. The SARS-CoV-2 virus (“COVID-19”), and the human infection it causes, COVID-19 disease, is a global pandemic and has been termed a global health emergency by the World Health Organization (“WHO”). Cases first began appearing between December 1 and December 31, 2019, in Hubei Province, China. 8. On January 7, 2020, the virus was isolated. The virus was analyzed and discovered to be a coronavirus closely related to the SARS coronavirus that caused the 2002–2003 SARS epidemic. 9. COVID-19 is a serious disease. The overall case fatality rate has been estimated to range from 0.1 to 3.5%, which is up to 35 times the fatality associated with influenza infection. COVID-19 is characterized by a flu-like illness. While more than 80% of cases are selflimited and generally mild, overall some 20% of cases will have more severe disease requiring medical intervention and support. 10. The case fatality rate varies significantly depending on the presence of certain demographic and health factors. The case fatality rate varies significantly with advancing age, rising after age 50, and above 5% (1 in 20 cases) for those with pre-existing medical conditions including cardiovascular diseases, hypertension, respiratory diseases, like asthma and COPD, diabetes, and immune compromise. 11. Among patients who have more serious disease, some 30% will progress to Acute Respiratory Distress Syndrome (ARDS), which has a 30% mortality rate overall, higher in those with other health conditions. Some 13% of these patients will require mechanical ventilation, which is why intensive care beds and ventilators have been in insufficient supply in Italy, Iran, and in parts of China.
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12. COVID-19 is widespread. Since it first appeared in China in late 2019, outbreaks have subsequently occurred in more than 160 countries and all populated continents; heavily affected countries include Italy, Spain, Iran, South Korea, and the U.S. The U.S. is now the world’s most affected country. As of May 7, 2020, there have been 4,413,597 confirmed human cases globally and 300,798 known deaths.1 It is not contained, and cases are growing exponentially.
13. In the United States alone, the Centers for Disease Control and Prevention (“CDC”) reports 1,384,930 cases and 83,947 deaths as of May 14, 2020.2 As of May 14, 2020, Maine has had 1,405 coronavirus cases and seen 207 hospitalizations and 69 deaths as a result of the virus.3 All these numbers are likely underestimates because of limited availability of testing.
14. COVID-19 is now known to be fully adapted to human-to-human spread. This is almost certainly a new human infection, which also means that there is no pre-existing or “herd” immunity, allowing for very rapid chains of transmission once the virus is circulating in communities.
15. COVID-19 is a highly contagious respiratory illness. It is transmitted between persons in close proximity (within about six feet) by airborne droplets released by infected individuals when they cough or sneeze. The droplets can survive in the air for up to three hours. It may also be possible for an individual to become infected by touching a surface or object that has the virus on it and then touching his or her own mouth, nose, or possibly eyes. Infected
1 https://coronavirus.jhu.edu/map.html (last accessed May 14, 2020). 2 https://www.cdc.gov/covid-data-tracker/index.html (last accessed May 14, 2020) 3 https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus.shtml (last accessed May 14, 2020)
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droplets can survive on surfaces for variable lengths of time, ranging from up to four hours on copper, to 24 hours on cardboard, to two to three days on plastic or stainless steel. 16. The U.S. CDC estimates that the reproduction rate of the virus, the R0, is 2.4-3.8, meaning that each newly infected person is estimated to infect on average 3 additional persons. This is highly infectious and only the great influenza pandemic of 1918 (the Spanish Flu as it was then known) is thought to have higher infectivity. This again is likely a function of all human populations currently being highly susceptible. The attack rate given an exposure is also high, estimated at 20–30% depending on community conditions, but may be as high as 80% in some settings and populations. The incubation period is thought to be 2–14 days, which is why isolation is generally limited to 14 days. 17. CDC has recently added to the list of possible signs and symptoms of COVID-19 to include fever, cough, shortness of breath or difficulty breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat, or new loss of taste or smell.4 In severe cases, infection can result in respiratory failure or death. The care of people infected with COVID-19 depends on the seriousness of their illness. People with moderate symptoms may require hospitalization for supportive treatment, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. 18. A significant number of infected individuals do not exhibit symptoms, however, and asymptomatic individuals—either before the onset of symptoms or because no symptoms will ever manifest—can nevertheless transmit the disease to others. According to the CDC,
4 Centers for Disease Control and Prevention, Symptoms of Coronavirus, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last accessed May 14, 2020).
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up to 25 percent of people infected with COVID-19 will remain asymptomatic.5 Similarly, infected individuals may experience only mild symptoms. These asymptomatic and mildly symptomatic individuals can, and do, transmit the virus, contributing to its rapid spread. Because of the high risk of transmission by asymptomatic individuals, CDC recently recommended everyone wear a mask when they leave their homes.6 19. There is currently no vaccine for COVID-19, and no cure. The only known ways to prevent the spread of COVID-19 involve measures such as thorough handwashing, frequent decontamination of surfaces, and maintaining six feet of physical distance between individuals (“social distancing”). The Risks of COVID-19 in Correctional Facilities 20. COVID-19 poses a serious risk to prisoners, workers, and anyone else in correctional facilities. Correctional facilities, including facilities like Maine’s prisons, have long been associated with high transmission probabilities for infectious diseases, including tuberculosis, multi-drug resistant tuberculosis, MRSA (methicillin resistant staph aureus), and viral hepatitis. For example, in 2011, the Maine Department of Corrections experienced a seasonal flu epidemic that sickened a large number of inmates and staff in 2011, even killing one prisoner.7 The Hepatitis C virus is also common among prisoners
5 Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatictransmission.html (last accessed May 14, 2020). 6 U.S. Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“Interim Guidance”), at 8-12, https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html (last accessed May 14, 2020). 7 Influenza Outbreaks at Two Correctional Facilities – Maine, March 2011, Centers for Disease Control and Prevention (Apr. 6, 2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm (last accessed May 14, 2020).
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in Department of Corrections custody. Department of Corrections records indicate that, as of October 2017, there were 580 inmates in Department of Corrections custody infected with Hepatitis C.8 21. The severe epidemic of tuberculosis in prisons in Central Asia and Eastern Europe was demonstrated to increase community rates of tuberculosis in multiple states in that region, underscoring the risks prison outbreaks can lead to for the communities surrounding a prison. 22. Infections that are transmitted through droplets, like influenza and COVID-19, are particularly difficult to control in detention and correctional facilities, as social distancing and proper decontamination of surfaces are virtually impossible. 23. For example, several deaths were reported in the U.S. in immigration detention facilities associated with ARDS following influenza A, including a 16-year old immigrant child who died of untreated ARDS in custody in May 2019. 24. It is estimated that during the Spanish influenza of 1918 half of the 1900 inmates at San Quentin Prison in California contracted the disease during the first wave of the epidemic. Sick calls increased from 150 to 700 daily. Most of the ill were kept in the general prison population because the hospital ward was full.9 25. Current recommendations for social distancing and frequent cleansing of surfaces to prevent infection and the spread of the virus are extremely difficult, if not impossible, to
8 Amended Compl., Ex. 1, Loisel v. Clinton, Docket No. 19-cv-81-NT, ECF No. 26-1 (June 26, 2019) (stating that as of October 31, 2017, there are 580 [Hepatitis C Virus positive] prisoners housed in the Maine Department of Corrections”). 9 L.L. Stanely, MD., 43 Public Health Reports (1896-1970), Influenza at San Quentin Prison, California (May 9, 1919), https://www.jstor.org/stable/4575142?seq=1#metadata_info_tab_contents.
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implement in the correctional setting. A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical complications of these infectious diseases. These include physical/mechanical risks such as population density in close confinement; insufficient ventilation; and shared toilet, shower, and eating environments. Shared spaces and equipment (such as telephones) are commonly not adequately disinfected, especially during the current pandemic when more frequent cleaning and disinfecting are required. Limits on alcohol-based hand sanitizer are also risks for spread. The nationwide shortage of personal protective equipment (PPE), as well as ancillary products (such as cleaning supplies and thermometer probes) further impacts the ability of correctional facilities to implement necessary precautions.10 Based on declarations that I have been provided from prisoners Joseph Denbow and Sean Ragsdale, I understand that many of these challenges—particularly the inability to perform social distancing, the absence of alcohol-based hand sanitizer, and lack of necessary hygiene at shared spaces— are also present in the Maine Department of Corrections. 26. The risk of exposure to and transmission of infectious diseases, as well as the risk of harm from developing severe complications or death if infected, is significantly higher in jails, prisons, and detention centers than in the community. 27. Close, poorly ventilated living quarters and often overcrowded conditions in these facilities foster the rapid transmission of infectious diseases, particularly those transmitted by airborne droplets through sneezing, speaking, or coughing. In these congregate settings, large numbers of people are closely confined and forced to share living spaces, bathrooms,
10 Study of COVID-19 in Correctional Facilities, Harvard University and National Commission on Correctional Health Care, April 9, 2020.
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eating areas, and other enclosed spaces. Groups of persons are often moved from space to space, for example, from a dormitory to a cafeteria. Persons congregate and come in close contact while standing in lines for medication, commissary, fresh laundry, telephones, showers, or restroom use. These group movements, which may cluster large numbers of people together in small spaces, increase the risk of transmission. It is common for prisoners in a given housing unit to routinely be subjected to such group movements multiple times each day. They are physically unable to practice social distancing, which the CDC has identified as the “cornerstone of reducing transmission of respiratory diseases such as COVID-19.”11 28. This forced congregation spreads infection from one area of a prison to other areas, too. In addition, prisons often rely on prisoners to perform work that supports the operation of the facility, such as food service, laundry, and cleaning. To perform these work assignments, they typically travel from their housing units to other parts of the facility. Officers and other facility staff routinely have direct physical contact with prisoners, especially when handcuffing or removing handcuffs from prisoners who are entering or exiting the facility. Staff members also move around within the facility, which creates opportunities for transmission both among staff in different parts of the facility and transmission to and from prisoners in different parts of the facility. This regular circulation makes the spread of infection throughout a prison all but inevitable. 29. While jails, prisons, and detention centers are often thought of as closed environments, this is not the case. Custody, medical, and other support staff and contractors enter and leave
11 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html (last accessed May 14, 2020).
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the facility throughout the day. Prisoners and inmates are often transferred between housing units, or into and out of isolation. This further increases the likelihood of transmission of COVID-19. 30. It has long been known that jails, prisons, and detention centers can be hotbeds of disease transmission. Due to the frequent ingress and egress of employees at these facilities, an outbreak within a jail, prison, or detention center can quickly spread to surrounding communities. For example, the tuberculosis epidemic that broke out in New York City in the early 1990s began in jails and was spread to the community by jail employees who became infected and then returned home to their families and communities. 31. As stated above, according to the CDC, up to 25 percent of people infected with COVID19 will remain asymptomatic.12 Similarly, infected individuals may experience only mild symptoms. These newly infected, asymptomatic, and mildly symptomatic individuals can, and do, transmit the virus, contributing to its rapid spread. As a result, such inadequate screening presents a critical problem. The possibility of asymptomatic transmission means that monitoring staff and incarcerated people for symptoms and fever is inadequate to identify all who may be infected and to prevent transmission. 32. It is my understanding that the Department of Corrections is testing only symptomatic prisoners as a method of prevention and identification of possible COVID-19 exposure and infections. The problem with testing only symptomatic prisoners is that there are likely many asymptomatic individuals, coupled with constant staff movement in and out of the facility. Without constant and widespread testing, potential sources of infection would be
12 Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatictransmission.html (last accessed May 14, 2020).
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very difficult to establish. Without constantly testing everyone to detect asymptomatic individuals, testing symptomatic prisoners alone is not a meaningful method of prevention. 33. Social distancing is the most effective method of preventing the spread of COVID-19. Current CDC recommendations for reducing the transmission of COVID-19 in prisons emphasize that “[a]lthough 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.”13 Social distancing must be utilized conjointly with other practices, like testing, isolation, and quarantine, to achieve maximal efficacy in reducing transmission. If a facility is not practicing social distancing, CDC testing protocols are not sufficient to prevent the spread of the illness. 34. Ultimately, once confirmed cases of COVID-19 exist in a prison, like the Department of Corrections’ facilities, the population density and inability to properly sanitize areas of dense congregation will result in widespread transmission of the disease inside of the facility and in the broader community through daily staff ingress and egress. 35. While every effort should be made to reduce exposure in correctional facilities through internal mitigation efforts, this may be extremely difficult to achieve and sustain quickly enough. Further, no mitigation effort can change the inherent nature of detention facilities, which force people to live in close proximity to one another. It is therefore an urgent priority in this time of national public health emergency to reduce the number of persons
13 U.S. Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“Interim Guidance”), at 9-10, https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html (last accessed May 14, 2020).
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in prison as quickly as possible. Indeed, that is the only public health solution available at this time to reduce the spread of COVID-19 and potentially save lives. 36. Given the experience in China as well as the literature on infectious diseases in jail, additional outbreaks of COVID-19 among the U.S. jail and prison populations are highly likely. Releasing as many inmates as possible is important to protect the health of inmates, correctional facility staff, health care workers at jails and other detention facilities, and the community as a whole. Indeed, according to the WHO, “enhanced consideration should be given to resorting to non-custodial measures at all stages of the administration of criminal justice, including at the pre-trial, trial and sentencing as well as post-sentencing stages.”14 37. It is difficult to overstate the devastation that a COVID-19 outbreak could inflict on a correctional facility such as the Department of Corrections’ facilities. For example, at Rikers Island jail in New York, between April 1 and April 15, 2020, the number of COVID19 positive incarcerated individuals and staff members grew by 104 and 114 people, respectively, upping the jail’s total numbers of confirmed cases to 288 among the incarcerated population, 488 among correction staff, and 78 among health care workers.15,16 The first known case of COVID-19 at Rikers was confirmed on March 18,17
14 World Health Organization, Regional Office for Europe, Preparedness, prevention and control of COVID-19 in prisons and other places of detention: Interim guidance (Mar. 15, 2020), http://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-prevention-andcontrol-of-COVID-19-in-prisons.pdf (last accessed May 14, 2020). 15 Julia Craven, Coronavirus Cases Are Spreading Rapidly on Rikers Island, Slate (Apr. 2, 2020), https://slate.com/news-and-politics/2020/04/rikers-coronavirus-cases-increase.html (last accessed May 14, 2020). 16 Jan Ranson, Jailed on a Minor Parole Violation, He Caught the Virus and Died, N.Y. Times (Apr. 10, 2020). 17 New York Times, As Testing Expands, Confirmed Cases of Coronavirus in N.Y.C. Near 2,000 (Mar. 18, 2020), https://www.nytimes.com/2020/03/18/nyregion/coronavirus-new-yorkupdate.html (last accessed May 14, 2020).
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illustrating just how quickly this disease can and will overwhelm detention facilities. Two Ohio prisons, Marion Correctional Institution and Pickaway Correctional Institution, have emerged as the largest-known sources of U.S. coronavirus infections, according to data compiled by The New York Times. To date 3,808 cases have been connected to the two prisons.18 Over 80% of the approximately 2,500 prisoners in Marion tested positive.19 In addition, 169 staff have tested positive for COVID-19.20 Eight of the ten largest-known infections sources in the U.S. are jails or prisons. 38. At Ohio’s Marion Correctional, close to 95% of those who tested positive were asymptomatic and would otherwise not have been tested.21 This underscores the risk of the spread of COVID-19 by asymptomatic individuals. 39. If infected, prisoners are at greater risk for harm from COVID-19 than those in the general community. This is due to a number of factors including the fact that people in prisons have high rates of chronic illnesses, such as diabetes, heart disease, chronic lung disease, and immunosuppressive illnesses such as HIV that increase the risk from COVID-19; often have had poor or absent prior health care; and often have made unhealthy life-style choices, including alcohol and drug use. For these reasons, it is well accepted within the medical
18 New York Times, Coronavirus in the U.S.: Latest Map and Case Count, https://www.nytimes.com/interactive/2020/us/coronavirus-uscases.html?action=click&module=Top%20Stories&pgtype=Homepage&action=click&module= Spotlight&pgtype=Homepage#states (last accessed May 14, 2020). 19 Ohio Department of Rehabilitation & Correction, COVID-19 Inmate Testing Updated May 7, 2020, https://coronavirus.ohio.gov/static/DRCCOVID-19Information.pdf (last accessed May 14, 2020). 20 Id. 21 Linda So & Grant Smith, In Four U.S. State Prisons, Nearly 3,300 Inmates Test Positive for Coronavirus -- 96% Without Symptoms, New York Times (April 25, 2020), https://www.nytimes.com/reuters/2020/04/25/us/25reuters-health-coronavirus-prisons-testinginsight.html?searchResultPosition=8 (last accessed May 14, 2020).
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community that jail inmates are physiologically 10 years older than their chronological
age. The CDC has identified the people with the following illnesses as being particularly
vulnerable to severe illness for COVID-19:
• Diabetes mellitus • Lung disease including asthma or chronic obstructive pulmonary disease (chronic
bronchitis or emphysema) or other chronic conditions associated with impaired lung function or that require home oxygen • Heart disease • Blood disorders (e.g., sickle cell disease or on blood thinners) • Chronic kidney disease • Chronic liver disease • Compromised immune system (immunosuppression) • Current or recent pregnancy in the last two weeks • Endocrine disorders • Metabolic disorders • Neurological and neurologic and neurodevelopment conditions [including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability, moderate to severe developmental delay, muscular dystrophy, or spinal cord injury]22 • Severe obesity23
The CDC also deems people 65 or older to be particularly vulnerable to COVID-19.
However, in my professional opinion the proper figure for jail inmates is no older than 55
years old.
40. Based on these understandings, it is my opinion that the exponential infection of rate for
COVID-19 we already see in the community would be magnified within the Department
of Corrections’ facilities. Adequate social distancing would be impossible to achieve.
What’s more, infection in the Department of Corrections’ facilities would not stay limited
22 U.S. Centers for Disease Control and Prevention, Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission, https://www.cdc.gov/coronavirus/2019ncov/downloads/community-mitigation-strategy.pdf (last accessed May 14, 2020). 23 U.S. Centers for Disease Control and Prevention, Groups at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higherrisk.html#severe-obesity (last accessed May 14, 2020).
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to those facilities, but would worsen infection rates in the broader community. The infection rate will increase substantially before it starts to diminish without major interventions. Conclusions 41. For the reasons above, it is my professional opinion that persons currently detained at the Department of Corrections’ facilities are at significantly greater risk of contracting COVID-19 than if they were permitted to shelter in place in their home communities. If infected, many are at increased risk of suffering severe complications and outcomes particularly given the underlying health conditions of many people in correctional settings as well as the constrained provision of health care within facilities during the pandemic. 42. It is my professional opinion that conditions in the Department of Corrections’ facilities threaten the health and safety of every individual within those facilities—prisoners and staff alike—and in their surrounding communities. 43. It is my professional opinion that a necessary component of bringing the Department of Corrections’ facilities into compliance with the recommendations of the CDC to minimize the risk of COVID-19 transmission within the facility and to the larger community is to substantially reduce the population. Doing so will allow the facility to significantly reduce the risk of infection for both incarcerated people and correctional officers, which in turn protects the communities where corrections staff live. 44. It is my professional opinion that those who are medically vulnerable24 need to be moved out of the Department of Corrections’ facilities to the absolute maximum extent possible.
24 E.g., persons held at the Department of Corrections’ facilities over the age of 55, as well as all current and future persons held at the facilities of any age who experience (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as
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In addition, the overall population needs to be significantly lowered to reduce the density in the prisons to allow for adequate social distancing, minimize the strain on the jail’s medical care system, ensure adequate space is available for necessary quarantining. 45. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this 14th of May, 2020 /s/ Joseph Goldenson Joseph Goldenson, M.D.
congenital heart disease, congestive heart failure and coronary artery disease, or other chronic conditions associated with impaired heart function; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or (l) a current or recent (last two weeks) pregnancy.
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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

JOSEPH A. DENBOW et al., Petitioners,
v. MAINE DEPARTMENT OF CORRECTIONS et al.,
Respondents.

Docket No. 1:20-cv-00175-JAW

OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER AND INCORPORATED MEMORANDUM OF LAW Introduction
Respondents Maine Department of Corrections (“MDOC”) and Commissioner Randall Liberty have taken dramatic and rapid action to reduce the risk of COVID-19 to inmates and staff by stopping all non-essential movement into the prisons, taking precautions to reduce the spread of germs among inmates, responding vigorously to the four positive tests, and evaluating inmates for potential community confinement. MDOC’s aggressive actions have dramatically limited the spread of COVID-19 in its facilities. Maine has found only four confirmed cases of COVID-19, all at one facility and all arising in the last 10 days. MDOC’s actions reflect a high level of concern for inmates in MDOC’s prisons and do not show that Petitioners are “in custody in violation of the Constitution or laws” of the United States, as required for habeas relief.
Despite MDOC’s actions, Petitioners ask the Court to order six wide-ranging categories of injunctive relief, including dictating MDOC’s COVID-19 testing protocols (with no input from the Maine CDC) and “enlargement” (release) of inmates into the community while this case is pending. However, Petitioners have not shown they are entitled to the extraordinary and drastic

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remedy of mandatory injunctive relief. They are unlikely to succeed on the merits, because the facts demonstrate MDOC’s robust response to COVID-19 and because Petitioners’ claims are barred by the exhaustion statute. Nor, given MDOC’s aggressive policies and the small number of COVID-19 cases in the prisons, have Petitioners shown a likelihood—as opposed to a mere possibility—of irreparable harm. Similarly, the relief Petitioners seek (releasing hundreds of inmates, including those convicted of murder and other violent crimes) is counter to the public interest, and the balance of equities tips heavily in favor of MDOC. Because MDOC’s efforts to combat COVID-19 do not support injunctive relief against it, the Court should deny Petitioners’ motion for a temporary restraining order.1
Facts I. MDOC’s Aggressive Response to COVID-19
MDOC is currently engaged in extraordinary efforts to combat COVID-19, a respiratory ailment caused by the novel coronavirus that has spread throughout Maine2 and globally. The U.S. CDC’s “current best estimate” is that approximately 65% of individuals who contract COVID-19 will develop symptoms; 3.4% of those symptomatic COVID-19 cases will require hospitalization and 0.4% of symptomatic cases will result in death. See U.S. CDC, COVID-19 Pandemic Planning Scenarios, at 4-5 (“Scenario Five: Current Best Estimate”), at https://www.cdc.gov/coronavirus/
1 Per the Court’s directive at the May 21, 2020 status conference, this expedited filing is directed at Petitioners’ request for an immediate temporary restraining order, which the Court has indicated it intends to rule upon separately from Petitioners’ motion for preliminary injunction. As directed by the Court, this submission is focused primarily on MDOC’s policies and practices to respond to the challenges of the COVID-19 pandemic in Maine’s correctional facilities. Respondents reserve their right to present additional factual material and legal arguments in opposing Petitioners’ motion for a preliminary injunction.
2 As of May 27, 2020, there have been 1,914 confirmed cases of COVID-19 in Maine. Penobscot County, where Petitioners are incarcerated, has had 99 cases. Cumberland County, where the Maine Correctional Center is located, has had 1,065 cases. Knox County, where Maine State Prison and the Bolduc Correctional Facility are located, has had 20 cases. See Maine Center for Disease Control, “Novel Coronavirus 2019 (COVID-19),” https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus.shtml (last viewed May 27, 2020).
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2019-ncov/hcp/planning-scenarios-h.pdf (last reviewed May 20, 2020). In early March 2020, MDOC developed a three-phase approach to combating COVID-19,
in consultation with the Maine CDC. Affidavit of Dr. Ryan Thornell, filed concurrently, ¶ 7. Each successive phase of MDOC’s response plan contains escalating protective measures against the spread of COVID-19. Id. Phase 1 (Preparation and Prevention) occurred immediately. Id. MDOC moved to Phase 2 when there was a confirmed case in the Maine community, and Phase 3 began at MCC on May 19, when MDOC found the first confirmed inmate case of COVID-19. Id. Immediately after that first positive test, the entire population (inmates, staff, and medical) at MCC was tested within four days. Id. ¶ 55. Remarkably, only four positive cases were found. Id. In response to those positives, MDOC has already begun universal re-testing at MCC, in consultation with the Maine CDC, and expects it to conclude by June 1. Id. ¶ 57. Overall, MDOC has tested over 750 inmates and staff since the start of the pandemic. Id. ¶ 18.
The most important and effective parts of MDOC’s wide-ranging response plan have been its efforts to stop movement into the prisons, prompt and vigorous responses to positive tests, evaluation of inmates with medical conditions for potential community confinement, and collaboration with Wellpath (MDOC’s medical contractor) and the Maine CDC to prevent the spread of COVID-19.
II. MDOC’s Early Halt to Movement Into Prisons Key to delaying COVID-19 infiltrating MDOC facilities was that, as of April 13, MDOC
and the county jails agreed to stop the transfer of inmates to MDOC. Id. ¶ 50. Now, by the Governor’s Executive Order, there will be no intakes from county jails until the emergency declaration ends. Id. Even prior to intakes stopping, MDOC ordered that any inmates arriving from county jail would go only to MCC (with a very limited exception for intensive mental health treatment) and had all such intakes met upon arrival by staff in full PPE (n95 masks, face shields,
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gowns, and gloves) and undergo medical assessments. Id. ¶ 38. Transferees were also quarantined for fourteen days. Affidavit of Dr. John Newby, filed concurrently, ¶ 36. MDOC also suspended work release programs, so that inmates would not be exposed in the community or bring the virus back. Thornell Aff. ¶ 32. In March, MDOC suspended all non-professional visits at the facilities.3 Id. ¶ 26. These limitations contributed to MDOC’s success in staving off the first COVID-19 cases in MDOC facilities until late May, while correctional systems in other states have had much larger case numbers. Id. ¶ 71.
Further, MDOC implemented strict screening requirements for everyone entering the prisons, which MDOC developed in consultation with the Maine CDC. Id. ¶ 31. Those entering have their temperatures taken and are questioned about possible exposure and symptoms. Id. In March, MDOC also limited staff to working in a single facility and limited movement of behavioral health staff between the facilities. Id. ¶¶ 24, 30; see also Newby Aff. ¶ 38 (limiting all non-essential travel between facilities by Wellpath’s medical providers).
III. MDOC’s Vigorous Response to the Positive Tests After the positive test at MCC on May 19, MDOC began immediate universal testing there,
and all inmates and staff at MCC were tested within four days, save for the handful of inmates who refused, resulting in four positive inmate tests and no positive staff tests. Thornell Aff. ¶ 55. The second positive inmate case was confirmed on May 22 and two additional cases were confirmed on May 23. Id. All four inmates who tested positive were housed at MCC and have been placed in isolation there, where nursing staff attend to them multiple times per day. Id.; Newby Aff. ¶ 47. None have required hospitalization. Thornell Aff. ¶ 55. Three are under age 50, and the
3 MDOC has provided inmates with additional calls, messages, and Zoom visits to address the lack of inperson visits. Thornell Aff. ¶¶ 27, 39.
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fourth is in his late 60s (and has been in prison since 1998). Id. MDOC will continue to isolate these inmates (and any future positives), as recommended by the Maine CDC, for at least fourteen days from the date of their positive test, and they will not be reintegrated until they are symptomfree and have had two confirmed negative tests. Id. ¶ 56.
Given the four total positive tests, on May 24, 2020, MDOC obtained approval from the Maine CDC for universal retesting at MCC. Id. ¶ 57. Retesting began today, May 27, and is expected to be completed June 1. Id. MDOC also follows the Maine CDC’s recommendation that testing at other MDOC facilities occur when there is a reason to believe inmates or staff in those facilities have been exposed or are suspected of having COVID-19. Id. ¶¶ 57-58. There is very little risk that the cases found at MCC will be the source of infection at other MDOC facilities. Id. ¶ 53. The only recent inmate transfers from MCC were three inmates transferred to MSP (two had urgent mental-health needs and one required restrictive housing unavailable at MCC). Id. All three were tested for COVID-19 following the positive test on May 19. Id. ¶¶ 53-54.
Due to the positive tests, MCC is currently locked down, with inmate movement restricted to reduce the potential spread of COVID-19. Id. ¶¶ 52, 61. Inmates at MCC are receiving meals and medication in their housing units, and inmate “sick calls” (medical requests) are being triaged in the housing unit when possible, instead of the prison’s clinic, to limit potential transmission. Id. ¶ 52; see also Newby Aff. ¶ 32. On May 23, MCC’s Warden declared an emergency in order to obtain authorization from the Governor to divert staff to MCC to address the emergency and assist with universal re-testing. Thornell Aff. ¶ 61.
IV. MDOC Evaluated At-Risk Inmates For Supervised Community Confinement. In March of 2020, as part of Phase 1, MDOC and Wellpath compiled a list of over 900
inmates with conditions considered by the U.S. CDC to place them at higher risk of illness from COVID-19, including asthma, hypertension, chronic lung disease, and other conditions. Id. ¶ 62.
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MDOC and Wellpath also created a list of inmates whose medical conditions made them a priority for consideration for the Supervised Community Confinement Program (SCCP).4 Id. MDOC’s Classification Department then evaluated every inmate on these lists (starting with those identified as most at risk) for potential placement on SCCP. Id. ¶¶ 62-63. MDOC continues to update this list and evaluate inmates for SCCP. Id. ¶ 62.
Some of these 900+ inmates with pre-existing medical conditions are incarcerated for violent crimes, and some are currently housed in segregated housing units because they pose a danger to staff and other inmates. Id. ¶ 68. Releasing such inmates on unsupervised medical furlough or SCCP would pose a danger to the victims of these offenders and to the community at large. Id. Their release would also violate the SCCP statute, which makes the program only available to minimum custody inmates and sets specific terms for their housing and monitoring. Id.; 34-A M.R.S. § 3036-A(2)-(3). The Classification Department determined which of the 900+ inmates qualified for SCCP under the relevant statute and rules, based on their sentence and security level. Thornell Aff. ¶ 62. The Classification Department then reviewed each eligible inmate’s case for potential SCCP placement. Id. ¶ 63. For inmates meeting certain criteria, aspects of the complex SCCP investigations that are typically required (which include inspecting the proposed residence and contacting victims) were modified to fast-track releases to SCCP. Id. Inmates not meeting the criteria for a fast-track placement were also considered for SCCP. Id. ¶ 64. Since March 1, 2020, 95 inmates have been released to SCCP. Id. ¶ 63. Five have since returned
4 The Supervised Community Confinement Program (SCCP) is governed by 34-A M.R.S. § 3036-A and 03201 C.M.R. ch. 10 (attached as Ex. H to the Thornell Declaration and also available at https://www.maine.gov/sos/ cec/rules/03/chaps03.htm) and allows the Commissioner to consider inmates for release to approved residences in the community with supervision by probation. The statute limits which inmates qualify and sets strict requirements. For example, inmates are not eligible for SCCP if they have a security classification level higher than minimum, or until they have served a certain portion of their sentence, and their proposed residence must be approved by MDOC. Thornell Aff. ¶ 62; 34-A M.R.S. § 3036-A(2)(B)-(D), (3)(B).
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to custody from SCCP for substance abuse, among other issues. Id. ¶ 63. The statute and rules specify that an inmate must have a proposed residence that is
approved by MDOC. Id. ¶ 66; 34-A M.R.S. § 3036-A(3)(B). It is especially important during a pandemic that inmates who are released have an appropriate residence. Thornell Aff. ¶ 67. Homeless shelters are not appropriate, because of documented outbreaks of COVID-19 in homeless shelters and because of the impossibility of determining if homeless shelters also house crime victims or other offenders, which the SCCP Policy does not allow. Id.
During the process of evaluating inmates for SCCP, MDOC Commissioner Liberty and others met several times with representatives of the Maine ACLU and provided them with the number of inmates with medical conditions associated with an increased risk from COVID-19. Id. ¶ 69. The ACLU requested that all 900+ inmates be released on medical furlough. Id. However, medical furlough is controlled by 34-A M.R.S. § 3035(2)(C),5 and is used when medical treatment or a medical procedure is necessary and cannot be done within MDOC. Id. ¶ 70. There is no monitoring of inmates on medical furlough. Id. MDOC is not presently using medical furlough to release inmates with hypertension, for example, simply because of the risk of COVID-19, because such inmates do not meet the statutory requirements and would potentially endanger the community. Id. ¶¶ 68, 70.
V. MDOC Has an Aggressive Response Plan And Has Been Extremely Transparent. On March 23, 2020, the U.S. CDC issued guidance specific to correctional facilities, which
MDOC follows to the extent feasible given the physical parameters of the prisons. Thornell Aff. ¶ 33. Even before that guidance was issued, MDOC took widespread action to prevent COVID-
5 34-A M.R.S. § 3035(2)(C) states that a “furlough may be granted for the obtaining of medical services for a period longer than 10 days if medically required.” (Emphasis added.)
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19. In early March 2020, MDOC instituted aggressive cleaning protocols at the facilities. Id. ¶¶ 89, 21. MDOC also issued directives encouraging social distancing practices, directing modified medication administration procedures to occur within housing units, and limiting group activities. Id. ¶¶ 12, 21-22, 42-44. Inmates were educated about COVID-19 and its prevention. Id. ¶¶ 9, 21, 25; Newby Aff. ¶ 18-20. MDOC ensured adequate supplies of PPE and other crucial supplies. Thornell Aff. ¶¶ 9, 14; Newby Aff. ¶ 14-15. MDOC also ensured that each facility identified a location for isolating suspected COVID-19 cases and that each facility had a plan for potential staff shortages. Thornell Aff. ¶ 15. MDOC and Wellpath also altered the delivery of healthcare services in response to COVID-19, including the use of PPE by providers and patients during examinations, the cleaning and disinfecting of equipment and medical areas between patient visits, and the use of telehealth visits where possible. Newby Aff. ¶¶ 22-35.
MDOC has worked closely with the Maine CDC to prevent and respond to COVID-19, meeting daily with the Maine CDC Director and following their protocols on testing. Thornell Aff. ¶¶ 6, 7, 57-58. Immediately after the positive staff test at Bolduc Correctional Facility, MDOC issued a directive to all facilities regarding positive case reporting and “contact tracing[,]” as advised by the Maine CDC. Id. ¶ 37.
MDOC has also put in place protocols to maximize mask wearing, social distancing and other CDC-endorsed practices. Following new CDC guidance on masks in April, MDOC distributed cloth masks to all inmates. Id. ¶ 40. MDOC further changed its policy from encouraging to requiring social distancing where feasible, and further required inmates and staff to wear masks in all facility areas when and where social distancing is not available. Id. ¶¶ 42–43. And, contrary to Petitioners’ allegations (PI Mot. 6, Petition 20), in every MDOC facility, inmates have access to hand sanitizer with a 70% alcohol content (Thornell Aff. ¶¶ 49, Ex. D). The U.S. CDC
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recommends handwashing over hand sanitizer, but at Mountain View, as at other facilities, inmates have access to hand sanitizer, dispensed by officers due to the potential for misuse. Id. ¶ 49.
Because of the protective steps it has taken against COVID-19, MDOC facilities have been able to continue to provide chronic care visits and other necessary medical treatments to inmates suffering from chronic conditions, including the 900+ inmates described above. Newby Aff. ¶¶ 1819. Protocols for distributing medication have been altered to minimize the potential for virus transmission. Thornell Aff. ¶¶ 12, 22, 52; Newby Aff. ¶ 23-24. In addition, to encourage inmates to seek treatment for any COVID-19 symptoms, MDOC has waived co-pays for sick calls for inmates with COVID-19 symptoms. Newby Aff. ¶ 30.
MDOC has also taken extensive measures to inform inmates, staff, and the public of best practices and important events related to COVID-19. Thornell Aff. ¶¶ 10, 35-36, 59-60. On March 31, 2020, MDOC began publishing daily information regarding COVID-19 in MDOC facilities on the web via the “Daily COVID-19 Dashboard,” available at www.maine.gov/corrections. Id. ¶ 35. The information posted includes the number of inmates tested, the number of pending tests, the number of positive and negative results, the number of inmates refusing the tests, as well as population data and data on the SCCP Program. Id. As of today, May 27, 2020, the Dashboard reflects that 494 inmates have been tested, that 3 have refused, and that only 4 have tested positive. Id. These numbers include all inmates and staff at MCC. Id. MDOC has also kept inmates and staff constantly updated on new developments, guidance, and protocols relating to COVID-19. E.g., id. ¶¶ 8, 21, 36-37, 40.
Within hours of learning of the five total staff and inmate positive tests, MDOC notified its staff and the public of the results and the steps taken to reduce the spread of the virus. Id. ¶¶ 36, 59-60. In short, MDOC’s rapid and thorough response, in collaboration with the Maine CDC, has
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been remarkably effective in limiting the spread of COVID-19 in Maine’s prisons. Id. ¶¶ 55, 72. Legal Standard
A temporary restraining order, like a preliminary injunction, is “an extraordinary and drastic remedy that is never awarded as of right.” Monga v. Nat’l Endowment for Arts, 323 F. Supp. 3d 75, 82 (D. Me. 2018) (Woodcock, J.). The movant must establish that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); accord W Holding Co., Inc. v. AIG Ins. Co.-Puerto Rico, 748 F.3d 377, 383 (1st Cir. 2014). “The sine qua non of this four-part inquiry is likelihood of success on the merits: if the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.” New Comm. Wireless Servs. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). Petitioners must show “‘more than mere possibility’ of success—rather, they must establish a ‘strong likelihood’ that they will ultimately prevail.” Sindicato Puertorriqueno de Trabajadores v. Fortuno, 699 F.3d 1, 10 (1st Cir. 2012).
Petitioners’ burden is especially high here because the injunctive relief they seek would alter, rather than preserve, the status quo. Such injunctions are disfavored and “normally should be granted only in those circumstances when the exigencies of the situation demand such relief.” Mass. Coal. of Citizens with Disab. v. Civil Def. Agency & Office of Emergency Preparedness of Mass., 649 F.2d 71, 76 n.7 (1st Cir. 1981); United Steelworkers of Am., AFL-CIO v. Textron, Inc., 836 F.2d 6, 10 (1st Cir. 1987) (noting that First Circuit authority suggests that “courts disfavor injunctions that disturb, rather than preserve, the status quo”).6
6 Habeas is an appropriate vehicle where an inmate seeks “what can be fairly described as a quantum change in the level of custody[,]” not vague and wide-ranging changes to MDOC’s practices. Gonzalez-Fuentes v. Molina, 607 F.3d 864, 873 (1st Cir. 2010) (quotation omitted). Even if some of the relief Petitioners seek could be understood as seeking “quantum” change in custody level, much of the relief requested does not. For example, Petitioners ask the
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Argument I. Petitioners Are Unlikely to Succeed on the Merits
A. Petitioners’ Eighth Amendment Claim Is Unlikely to Succeed on the Merits. “[A] prison official cannot be found liable under the Eighth amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety[.]” Farmer v. Brennan, 511 U.S. 825, 837 (1994). The state of mind required for deliberate indifference is “akin to criminal recklessness.” Kosilek v. Spencer, 774 F.3d 63, 83 (1st Cir. 2014); Farmer, 511 U.S. at 837-38. A reasonable response to a known risk negates deliberate indifference, even if harm is not averted,7 and even a negligent response to a known risk “that was colorable and taken in good faith might still be enough to negate deliberate indifference.” Burrell v. Hampshire Cty., 307 F.3d 1, 8 (1st Cir. 2002). Petitioners claim that MDOC does not adequately protect them from COVID-19, but MDOC’s early and expansive response to the virus shows an extraordinarily careful and active approach to trying to protect inmates and staff. E.g., Thornell Aff. ¶¶ 33, 37-38, 50, 42-44. MDOC’s actions and collaboration with the Maine CDC reflect best practices, not reckless disregard of an excessive risk, and do not violate the Eighth Amendment. Id. ¶¶ 7, 12, 57-58. Even assuming that Petitioners can show a sufficiently grave risk of harm from COVID19,8 they cannot show that MDOC officials were deliberately indifferent to that risk. MDOC
Court to “mandat[e] compliance with [U.S.CDC] guidance” inside MDOC facilities. Mot. at 3. This request is not for “a quantum change in the level of custody,” and is beyond the scope of what is available in habeas.
7 Here, harm has thus far been largely averted, as the four inmates who have tested positive have not required hospitalization. Thornell Aff. ¶ 55.
8 MDOC does not dispute that the COVID-19 is a highly contagious virus that puts everyone at risk, but compared to the community, where literally thousands more cases of COVID-19 have been identified (see Maine CDC, “Novel Coronavirus 2019 (COVID-19),” https://www maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/ coronavirus.shtml (last viewed May 23, 2020)), the conditions in MDOC’s facilities do not reflect a level of risk
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officials are aware of the risks of COVID-19, but they are not deliberately indifferent unless they recklessly disregard an excessive risk to inmate health or safety. Farmer, 511 U.S. at 839. The inquiry must “incorporate[ ] due regard for [the] unenviable task of keeping dangerous men in safe custody under humane conditions.’” Burrell, 307 F.3d at 8 (quoting Farmer, 511 U.S. at 845).
Petitioners cannot show that MDOC’s response to COVID-19 and the measures MDOC has put in place to protect inmates and staff were reckless. MDOC’s prevention efforts have been vast and were accomplished early. MDOC halted outside visitation and work release programs and screened all those entering the prisons, including the Wardens, in March, stopped all intakes from county jails to MDOC’s facilities on April 6, and ceased movement of staff and behavioral workers between prisons in April. Thornell Aff. ¶¶ 24, 30, 31, 50. MDOC made substantial efforts to educate staff and inmates by reinforcing good hygiene, intensifying cleaning and disinfecting practices, and implementing social distancing and masking strategies. Newby Aff. ¶¶ 17-18; Thornell Aff. ¶¶ 21, 42-43. These proactive and serious steps show a robust response, not deliberate indifference.
MDOC has found only four confirmed inmate cases, all at one facility, despite MDOC immediately testing that entire facility within four days of the first positive result.9 Thornell Aff. ¶ 55. MDOC did not stop there. MDOC traced the only two inmates who had recently transferred out of MCC, and tested and isolated them. Id. ¶¶ 53-54. These actions do not evidence reckless disregard of an excessive risk for any inmate. Farmer, 511 U.S. at 839.10
actionable under the Eighth Amendment. See Kosilek, 774 F.3d at 82 (the objective prong of Farmer “does not impose upon prison administrators a duty to provide care that is ideal, or of the prisoner’s choosing”).
9 This massive testing effort stands in stark contrast to the “shockingly limited” 75 total tests found to be available to the federal facility at issue in Wilson v. Williams, No. 4:20-cv-00794, 2020 WL 1940882, at *2 (N.D. Ohio Apr. 22, 2020), relied upon by Petitioners. Mot. at 14.
10 Petitioners demand in the joint status report that MDOC immediately test inmates at other facilities (ECF No. 13 p. 3), but the Maine CDC’s own guidance on testing in correctional facilities does not call for testing at other
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Even before any positive cases, MDOC took extensive actions to protect inmates and staff, including increased cleaning of facilities and shared items, giving inmates and staff information on COVID-19 and its prevention, ensuring adequate supplies of medication and other essentials, creating isolation units, and planning for staff shortages. Thornell Aff. ¶¶ 9, 14-15, 21, 25. Early on, inmates were encouraged to seek medical care when ill and not to share personal items with others. Id. ¶ 21. MDOC worked with Wellpath to test suspected COVID-19 cases and developed protocols to encourage social distancing where feasible. Id. ¶¶ 17, 22; Newby Aff. ¶¶ 17, 20, 42.
Petitioners argue that MDOC is deliberately indifferent because, like the federal facility that was enjoined in Martinez-Brooks v. Easter, No. 3:20-CV-00569 (MPS), 2020 WL 2405350, at *22 (D. Conn. May 12, 2020), MDOC has allegedly been “slow and inflexible” in considering inmates for SCCP. Mot. at 14. But the record does not support Petitioner’s claim. MDOC has considered for SCCP all of the eligible 900+ inmates in its custody with a medical condition that increases their susceptibility to COVID-19—nearly half of all inmates—making 95 placements so far. Thornell Aff. ¶¶ 62-63. In Martinez-Brooks, in contrast, the defendant officials considered only 159 of roughly 1,000 inmates for home confinement, approved only 21, and ignored Department of Justice guidance directing them to take COVID-19 risk factors into consideration. Id. at **22–23. Moreover, MDOC has far less flexibility with regard to home confinement than did the defendants in Martinez-Brooks. While the federal Bureau of Prisons is authorized under the federal emergency pandemic law to place any inmate in home confinement, id. at *22, MDOC
facilities until there is a reason to believe someone there has been exposed or is suspected of having COVID-19. Thornell Aff. ¶ 58. Petitioners’ disagreement with MDOC’s decision to follow the Maine CDC’s guidance does not show deliberate indifference. See Sires v. Berman, 834 F.2d 9, 13 (1st Cir. 1987) (citations omitted) (“where the dispute . . . evidences mere disagreement with considered medical judgment, we will not second guess the doctors.”); see also Estelle v. Gamble, 429 U.S. 97, 107 (1976).
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can only place inmates in SCCP if they meet the statutory eligibility requirements.11 Because MDOC did not recklessly disregard an excessive risk to inmates, Petitioners’
Eighth Amendment claim is unlikely to succeed on the merits. B. Petitioners’ ADA Claim Is Unlikely to Succeed on the Merits. Petitioners claim that MDOC’s response to the COVID-19 pandemic violates Title II of
the Americans with Disabilities Act by discriminating against prisoners with certain conditions that are risk factors of the disease. But to make a Title II claim, the Petitioner must establish: (1) that he is a qualified individual with a disability; (2) that he was excluded from participating in, or denied the benefits of a public entity’s services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of his disability.” Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 283 (1st Cir. 2006) (quoting Parker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000)). Discrimination can be established in three ways: (1) disparate treatment, (2) disparate impact—that a government policy neutral on its face “falls more harshly on one group than another and cannot be justified by business necessity,” or (3) failure to accommodate. Nunes v. Mass. Dep’t of Corr., 766 F.3d 136, 145 (1st Cir. 2014) (internal citations and quotations omitted). The first and third theory of discrimination require little discussion. There is no evidence that MDOC’s COVID-19 policies and practices treat inmates with disabilities less favorably than the non-disabled. In fact, MDOC created a list of inmates with certain medical conditions at particular risk of COVID-19, shared those numbers with Petitioners’ counsel in several meetings, and evaluated those inmates for potential expedited release on SCCP. Thornell Aff. ¶¶ 62-63, 69. Moreover, Petitioners’ demand for the “reasonable
11 As described in Dr. Thornell’s affidavit, Petitioners’ claim that MDOC is applying “stricter-than-usual” criteria to SCCP, Mot. at 15, is false. Rather, those criteria are for expedited placement through SCCP. Inmates not meeting those criteria continue to be considered for SCCP if they are eligible. Thornell Aff. ¶ 64.
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accommodation” of granting all subclass members SCCP or medical furlough, regardless of eligibility, Mot. at 19, misconstrues MDOC’s obligation under the ADA, which is to ensure that disabled inmates receive accommodations needed to allow them access those programs to the same extent as non-disabled inmates. There is no evidence that subclass members are being denied such accommodations.
That leaves only a disparate impact theory—that MDOC’s neutral policies on medical furlough and home confinement nonetheless disproportionately impact individuals with disabilities and cannot otherwise be justified. While Petitioners cite the increased vulnerability to COVID-19 of individuals with certain medical conditions, that increased vulnerability is not caused by any act of MDOC, or its policies. See Money v. Pritzker, No. 20-cv-2093, 2020 WL 1820660, at *19 n.14 (N.D. Ill. Apr. 10, 2020) (rejecting claim that increased susceptibility of disabled inmates to COVID-19 established that prison’s medical furlough and home confinement policies had a disparate impact on those inmates); see also generally Frazier v. Kelley, No. 4:20cv-00434, 2020 WL 2561956, at *35 (E.D. Ark. May 19, 2020) (rejecting claim that prison officials’ COVID-19 policies discriminated against disabled inmates). Instead, MDOC took action to identify inmates with medical conditions that make COVID-19 particularly risky, including a list of priority inmates from MDOC’s medical provider, and evaluated them for SCCP confinement in March. Thornell Aff. ¶¶ 62-63. Petitioners have not shown that MDOC’s policies “fall[] more harshly” on the disabled and “cannot be justified by business necessity.” Nunes, 766 F.3d at 145. Not only is there no disparate impact, but MDOC’s policies and actions are “justified by business necessity” for the same reasons that MDOC’s robust response to COVID-19 satisfies the Eighth Amendment. Id. MDOC is tasked by statute with housing and caring for inmates for the duration of their sentences, and MDOC has taken innumerable actions that are within MDOC’s power to
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try to protect them from COVID-19. See, e.g., Thornell Aff. ¶ 9-12, 21-24, 43, 52. Their actions are justified and do not discriminate against disabled inmates.12
C. Petitioners’ Claims Are Barred for Failure to Exhaust. Petitioners are also unlikely to succeed on the merits because they failed to exhaust remedies available in Maine courts. 28 U.S.C. § 2254 requires petitioners to have “exhausted the remedies available in the courts of the State” and further decrees that the petitioner “shall not be deemed to have exhausted . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.” Id. at § 2254(b)–(c). Petitioner Denbow is currently petitioning the Maine Superior Court for early release in a post-conviction review proceeding and thus has the right to raise the question presented in the State court. See ECF No. 13-2, 13-3. Petitioner Ragsdale has not even attempted to invoke state judicial processes to challenge his confinement. Because neither Petitioner has exhausted, their petitions are barred by § 2254. Petitioners argue that § 2554 is inapplicable and that they must only overcome the more flexible non-statutory exhaustion requirement applicable to petitions under 28 U.S.C. § 2241. But the First Circuit has expressly rejected this minority view of § 2241, and instead takes the “majority view” that “prisoners in state custody are required to comply with all the requirements laid out in § 2254 whenever they wish to challenge their custodial status, no matter what statutory label the prisoner uses.” Gonzalez-Fuentes v. Molina, 607 F.3d 864, 875 n.9 (1st Cir. 2010) (emphasis added); see also In re Wright, 826 F.3d 774, 778 (4th Cir. 2016) (“the majority view is that § 2241
12 Petitioners frame their disability discrimination claim in part as an alleged failure of MDOC to provide appropriate medical care to inmates with certain medical conditions. Mot. at 18. The First Circuit has made clear that allegations of inadequate medical care, standing alone, are insufficient to state a claim under Title II. Rather, such a claim must be “framed within some larger theory of disability discrimination,” such as evidence that alleged inadequate care was “pretext for some discriminatory motive, such as animus, fear, or apathetic attitudes” or evidence that the care was “discriminatory on its face, because it rested on stereotypes of the disabled rather than an individualized inquiry[.]” Kiman, 451 F.3d at 285 (quoting Lesley v. Chie, 250 F.3d 47, 55 (1st Cir. 2001)). Petitioners have not alleged pretext or facially discriminatory animus.
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habeas petitions from convicted state prisoners challenging the execution of a sentence are governed by § 2254”). Nor can Petitioners avoid exhaustion by showing circumstances “that render [state] process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(2)(ii). The Superior Court is moving forward with Petitioner Denbow’s PRC petition. (ECF No. 13 p. 2.) Other putative class members are free to file similar petitions. Petitioners cite no authority for their novel argument that the lack of a class-action mechanism dispenses with the exhaustion requirement. 13 Petitioner’s proposed class-action exception would erase § 2254’s exhaustion requirement. Because state processes are pending and available, § 2254 bars this petition and renders Petitioners unlikely to succeed on the merits. II. Petitioners Have Not Demonstrated Likely Irreparable Injury.
In addition to failing to demonstrate likelihood of success on the merits, Petitioners also cannot demonstrate that they are likely to suffer irreparable injury to justify a temporary restraining order or preliminary injunction. It is not enough for a party seeking injunctive relief to demonstrate a “possibility” of irreparable harm; rather, the movant must demonstrate that irreparable harm is “likely.” Winter, 555 U.S. at 20. Basing preliminary injunctive relief “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.” Id. at 22.
Petitioners have not shown they are likely to suffer irreparable injury without an injunction. To date, there have only been four cases of COVID-19 in a single MDOC facility that is
13Courts have dismissed § 2254 petitions for failure to exhaust despite the petitions being styled as class actions. See, e.g., Mays v. Dart, No. 20-C-2134, 2020 WL 1812381, at *6 (N.D. Ill. Apr. 9, 2020) (dismissing classaction habeas petition over COVID-19 response where named petitioners failed to exhaust); Pace v. Chino Inst. for Men, No. EDCV 09-00841CBM, 2009 WL 2189885, at *2 (C.D. Cal. July 21, 2009) (finding “no need to consider” whether a § 2254 petition may be brought as a class action where named petitioners failed to exhaust); Robinson v. Leahy, 401 F. Supp. 1027, 1032 (N.D. Ill. 1975) (dismissing class action for failure to exhaust under § 2254).
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considerably less remote than the facility housing Petitioners. See Dawson v. Asher, No. C200409JLR-MAT, 2020 WL 1304557, at *3 (W.D. Wash. Mar. 19, 2020) (finding no irreparable harm to an inmate from COVID-19 where there was “no evidence of an outbreak at the detention center or that Defendants’ precautionary measures are inadequate to contain such an outbreak or properly provide medical care should it occur”). MDOC’s impressive track record in keeping COVID-19 out of the prisons stands in stark contrast to other correctional systems that have been subject to injunctive relief in other states. See, e.g. Robenson v. Decker, No. 20-5141, 2020 WL 2611544, at 7 (D.N.J. May 22, 2020) (identifying “large number of cases” at correctional facility as key factor in TRO analysis); Martinez-Brooks v. Easter, No. 3:20-CV-00569 (MPS), 2020 WL 2405350, at *27 (D. Conn. May 12, 2020) (finding irreparable harm where prison was suffering “one of the worst [COVID-19 outbreaks] in the federal prison system”).
Here, Petitioners are not likely to suffer irreparable harm if the Court fails to award them the six categories of injunctive relief they seek, ranging from directing MDOC’s COVID-19 testing protocols (with no input from the Maine CDC), release of inmates into the community while their petition is pending, and “mandating compliance with” CDC “guidance including adequate physical distancing and necessary hygiene.” ECF No. 5 pp. 2-3; ECF No. 13 p. 3. Petitioners ask the Court to ignore U.S. Supreme Court precedent mandating deference to State prison officials in managing its prisons14 and instead issue an injunction consisting of widely varying types of relief that are unmoored from the status quo. The named Petitioners remaining at Mountain View, in rural Maine, until the end of their sentences (both this summer) does not show
14 See Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973) (“It is difficult to imagine an activity in which a State has a stronger interest . . . than the administration of its prisons”); Bell v. Wolfish, 441 US. 520, 562 (1979) (warning courts against becoming “enmeshed in the minutiae of prison operations.”).
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a likelihood of irreparable injury. Similarly, given that MDOC provides medical care on site (often in the housing unit), requires social distancing and cloth masks except where infeasible, and has implemented near constant cleaning, Petitioners have not shown that remaining in place creates a likelihood of irreparable injury. Petitioners have not shown an “imminent—rather than speculative—possibility” that they will suffer irreparable harm from COVID-19 if not released from custody[,]” and their request for injunctive relief should be denied. Engelund v. Doll, No. 4:20-CV-00604, 2020 WL 1974389, at *12 (M.D. Pa. Apr. 24, 2020). III. The Balance of Equities and the Public Interest Favors MDOC.
When the government is the opposing party, the balance of equities and the public interest merge into a single factor. See Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). Here, MDOC and the State of Maine as a whole have a compelling interest in having inmates serve the sentence imposed by the judicial system and completing the attendant rehabilitative programs. See United States v. Salerno, 481 U.S. 739, 750 (1987) (stating in the face of a challenge to pretrial detention that the “Government’s general interest in preventing crime is compelling”).
Certain putative class members are convicted of serious and violent crimes, and others are segregated from the general prison population because they pose a safety risk. Thornell Aff. ¶ 68. Indiscriminately releasing these inmates into the community—particularly on unmonitored medical furloughs, as Petitioners propose—would significantly threaten public safety. Id. MDOC already evaluated inmates with certain medical conditions for potential release through SCCP. Id. ¶¶ 62-63. That program’s requirement that an inmate have a low security classification ensures that the community is protected from higher-risk inmates. 34-A M.R.S. § 3036-A(2)(D). The statutory requirement that the inmate have a residence approved by the Commissioner, id. § 3036A(3)(B), ensures that inmates are not released into unsafe or unstable living situations. The record
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shows that MDOC is in fact using the SCCP for inmates susceptible to COVID-19 complications and that MDOC has reviewed every such inmate, in order to determine if they are eligible for SCCP, and, if so, if that program is appropriate. Thornell Aff. ¶¶ 62-63. Ninety-five individuals have been released to SCCP since the start of the pandemic. Id. ¶¶ 11, 63. The remaining inmates are either categorically ineligible, or MDOC determined that SCCP was otherwise inappropriate based on the specific factual circumstances for that inmate. Id. ¶¶ 62-63. The public interest supports keeping the program’s statutory safeguards in place, rather releasing inmates who are either potentially dangerous or who do not have a safe, appropriate place to live.
Conclusion The evidence shows that MDOC took early, immense, and successful steps to protect inmates from the threat of COVID-19, and that these actions do not violate the ADA or the Eighth Amendment. Because Petitioners are unlikely to succeed on the merits, are unlikely to suffer irreparable harm given MDOC’s response to the virus, and because the balance of equities and the public interest weigh strongly in MDOC’s favor, this Court should deny Petitioners’ motion.

Dated: May 27, 2020

AARON M. FREY Attorney General

/s/ Jillian R. O’Brien Jillian R. O’Brien jill.obrien@maine.gov Jonathan R. Bolton jonathan.bolton@maine.gov Alisa Ross alisa.ross@maine.gov Assistant Attorney General Office of the Attorney General 6 State House Station Augusta, ME 04333-0006 Tel. (207) 626-8800

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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

JOSEPH A. DENBOW et al., Petitioner v.
MAINE DEPARTMENT OF CORRECTIONS et al.,
Respondents

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Case No. 1:20-cv-00175-JAW

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AFFIDAVIT OF DR. RYAN THORNELL, Ph.D., IN OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER
I, Ryan Thornell, Ph.D., declare as follows: 1. I am over the age of 18 years and not myself a party to this action. I understand and believe in the obligations of an oath. 2. I have personal knowledge of the facts stated in this affidavit, and if called upon to testify, I would testify to those facts. In preparing this affidavit, I have also reviewed records and reports regularly kept by the Maine Department of Corrections (MDOC) that are available to me and that I rely on in my official duties. 3. I am Deputy Commissioner of Corrections for Respondent MDOC. I have been Deputy Commissioner since January 2018. I have worked for MDOC for five years. I previously led the Maine Board of Corrections (Maine’s coordinated jail system) and formerly served as faculty at the University of Sioux Falls in criminal justice.

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4. I have a Ph.D. in Political Science from the University of South Dakota. I have a Master of Science degree in criminal justice from the University of Cincinnati, and a Bachelor of Science degree in criminal justice and sociology from the University of Sioux Falls.
MDOC’s COVID Response Team: 5. I am in charge of MDOC’s response to the COVID-19 pandemic. I lead the MDOC COVID-19 Planning and Response Team, which was formed on March 3, 2020. I report all updates and pertinent information from the Response Team to MDOC Commissioner Randall Liberty. Since March 3, 2020, I have held daily briefings (every weekday and on weekends as necessary) with this team regarding developments in the prior 24 hours, regional and facility updates, planning, and requests from the Maine Center for Disease Control and Prevention (Maine CDC). Other members of this team include MDOC Associate Commissioners, the MDOC Health Services Coordinator, the MDOC Director of Classification and Pre-Release, Dr. John Newby (Regional Vice President for Wellpath, MDOC’s contracted medical provider for all MDOC facilities), MDOC’s Deputy Director of Operations, MDOC’s Director of Security, and the Chief Administrative Officers1 of the facilities. This team is responsible for implementing MDOC’s COVID-19 Response Plan. 6. I also confer daily on weekdays and weekends, and more often as necessary, by telephone with Dr. Nirav Shah, Director of the Maine CDC. Timeline of MDOC’s COVID-19 Response: 7. During the first week of March 2020, MDOC developed a three-phase approach to combating COVID-19, in consultation with the Maine CDC, the Maine Emergency Management Agency (MEMA), and the Governor’s Office. Each successive phase implements escalating
1 The term “Chief Administrative Officers” refers to the heads of the facilities and probation, including the wardens of adult facilities and the Superintendent of the Long Creek Youth Development Center.
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protective measures within MDOC against the spread of COVID-19, and is triggered based on specific risk-based benchmarks. Phase 1 (Preparation and Prevention) occurred immediately. MDOC moved to Phase 2 when there was a confirmed case in the Maine community. Phase 3 began at the Maine Correctional Center (MCC) in Windham on May 19, when MDOC found the first confirmed case of COVID-19.
Phase I Response 8. On March 5, 2020, MDOC sent a memo to all staff, alerting them that while there were no confirmed COVID cases in Maine, MDOC had established a phased approach to COVID19 prevention. The memo stated that Phase 1 had begun and included increased cleaning at the facilities, particularly with respect to the tablet computers available for inmates2 to check out on a daily basis, communal TVs, kiosks, computers, gym equipment, and other shared items. The memo also included the U.S. CDC’s recommendations regarding handwashing. A true and correct copy of that memo is attached to this affidavit as Exhibit A. 9. As part of Phase 1, MDOC implemented increased cleaning practices (like those done during past influenza outbreaks), including giving inmates and staff cleaning supplies and cleaning living and educational areas, computers, tablets, gym equipment, and common areas, along with staff training, and posting and disseminating information to inmates and staff about COVID-19 from the U.S. CDC. In addition, MDOC inventoried supplies and strongly encouraged inmates to get flu vaccines. MDOC also began planning for potential staffing shortages due to COVID-19.
2 I use the term “client” to refer to those individuals served by MDOC or in MDOC’s custody, including juveniles, probationers, and adults housed in MDOC facilities. For clarity, this affidavit refers to the clients housed in adult MDOC facilities as “inmates.”
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10. On March 6, 2020, MDOC put information regarding COVID-19 on the tablet computers that inmates use daily in MDOC housing units.
11. As discussed further in paragraphs 62-68 below, in mid-March 2020, MDOC and Wellpath compiled a list of inmates with conditions considered by the U.S. CDC to place them at higher risk of illness from COVID-19, and MDOC reviewed whether each of them was eligible for the Supervised Community Confinement Program (“SCCP”), a program by which inmates are housed in the community under certain conditions and with supervision. As a result, 95 inmates have been moved to community confinement since March 1, 2020.
12. In early March 2020, MDOC consulted with its medical provider, Wellpath, and the Maine CDC to review and update previously-developed protocols for viral outbreaks and aligned the protocols with the U.S. CDC’s then-existing recommendations for COVID-19. Medical staff conducting “med-line” (giving out medication) and medication-assisted treatment (“MAT”)3 in the facilities also began using Personal Protective Equipment (PPE) (surgical masks, face shields, and gloves) to reduce the spread of germs.
13. MDOC also restricted non-staff access to the facility infirmaries and medical assisted living units, meaning that inmates (such as inmate hospice workers and inmate janitorial workers) would no longer enter those units.
14. Since early March 2020, MDOC has actively monitored the U.S. CDC’s materials for updated guidance, implemented N-95 mask and PPE training, orchestrated trainings by medical staff of MDOC staff interacting with inmates, and had facility food services prepare by maintaining a one-month supply of paper goods and food. MDOC also ensured that facilities stocked up on
3 MAT involves the use of a medication (such as methadone or suboxone) in combination with counseling and behavioral therapies to treat substance addiction. In MDOC, nearly 200 inmates with opioid use disorder receive such medications.
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medical supplies, prescription medications, and cleaning supplies. There have not been any shortages of these in MDOC to date, nor are any shortages anticipated.
15. MDOC also ensured that each facility identified a location for isolating suspected COVID-19 cases and that each facility had a plan for any staff shortages caused by COVID-19.
16. Also as part of Phase 1, Wellpath and MDOC contacted hospitals local to the prisons (such as Maine Medical Center, PenBay, and Mercy Hospital) to discuss procedures for emergency medical transports and treatment of suspected COVID-19 cases that required hospital attention. During Phase 1, MDOC and Wellpath instituted rapid flu and Respiratory Syncytial Virus (RSV) testing for inmates to address flu-like symptoms. MDOC and Wellpath also worked together to project and monitor use of PPE, flu vaccines, and rapid influenza tests.
17. During Phase 1, MDOC also worked with Wellpath regarding testing of suspected COVID-19 cases at MDOC facilities. MDOC’s Health Services Coordinator Holly Howieson and Wellpath Regional Medical Director Dr. Robert Clinton consult regarding any inmates to be tested, and Dr. Clinton gives the physician order for the tests. Medical staff collect the swabs for the tests on site. The Maine Health and Environmental Testing Laboratory has processed the majority of inmate samples.
18. Overall, MDOC has performed over 750 COVID-19 tests on inmates and staff since the start of the pandemic.
19. On March 13, 2020, MDOC sent a memo to all MDOC staff regarding the first presumptive community case of COVID-19 in Maine, and explaining additional steps being taken to reduce the spread of germs. A true and correct copy of this memo is attached to this affidavit as Exhibit B.
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20. On March 12, the Governor suspended all non-essential State employee travel outside of Maine, which MDOC applied to its staff.
21. On March 12, 2020, MDOC issued information for the Chief Administrative Officers to provide to inmates, alerting them that they would see increased cleaning practices and posted signage about hand washing, symptoms, and facts about COVID-19. Inmates would also see the medication line and medically-assisted treatment staff using PPE as a precautionary measure. Inmates were instructed on proper handwashing and noted that the CDC did not recommend the use of facemasks as a preventative measure for those without symptoms. Inmates were encouraged to alert medical personnel if they are sick, not to share personal items with others, and to get flu shots if they had not already (to prevent the spread of the flu) and informing them that the flu shot would not prevent COVID-19. MDOC sent the information to the Chief Administrative Officers, who held unit “town halls[,]” put the information on tablet computers available to inmates, and used print memos. The Chief Administrative Officers reported back to the Response Team during the daily calls after providing the information to the inmate population. Also in March, MDOC developed a protocol for cleaning inmates’ cells and property that MDOC sent to the Chief Administrative Officers to communicate to inmates.
Phase II Response 22. Due to confirmed cases in Maine communities, on March 13, in consultation with MEMA and the Maine CDC, MDOC implemented Phase 2 of the Response Plan and alerted all staff. As part of Phase 2, MDOC encouraged social distancing practices where feasible, modified medication administration procedures (so they could happen in the housing unit where feasible), and limited group sizes for dining, gym, and fitness areas. MDOC also developed in-cell educational and program materials in the event of prolonged restrictions on inmate movement.
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23. Also during Phase 2, MDOC had facility kitchen staff (including inmates) be questioned and temperature-checked for fever at each shift before beginning work. MDOC also began and continues to require that kitchen staff wear masks.
24. As part of Phase 2, MDOC began logging the monitoring and quarantining of staff and inmates, as well as possible exposures. MDOC also limited movement of behavioral health staff between the facilities, assigning each person to a single primary facility. MDOC further began tracking PPE use and providing periodic updated guidance on PPE use.
25. As part of Phase 2, MDOC posted signs in the facilities regarding hand washing, symptoms, and general fact sheets about COVID-19. MDOC also began using medical questionnaires regarding COVID-19 and taking vital signs on new inmate intakes.
26. As of March 14, all facility visits were suspended for family, friends, volunteers, and other non-professional visitors. MDOC also made alternate reporting arrangements for probationers so that in-person reporting would not be required.
27. Due to the restrictions on visits, inmates were given 20 free messages per week on the tablet computers and 2 free 10-minute phone calls per week. Extra weekly postage was made available to inmates without tablet access.
28. As of March 14, MDOC had Juvenile and Adult Community Corrections Officers (probation) revise their detention protocols, limiting detention to those posing an immediate threat to public safety.
29. On March 16, 2020, MDOC activated an internal “Incident Command” (the process used to respond to emergencies) and set up an incident command center at the central office and at each correctional facility to manage the prevention of COVID-19 and to prepare for its eventual infiltration of MDOC facilities.
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30. As of March 16, MDOC ordered that any intakes from county jails would go to MCC only (except for inmates needing to be housed in the intensive mental health unit at Maine State Prison (MSP)). Also as of March 16, there would be no more cross-facility shift work by staff. Staff would have permanent posts at a single facility.
31. On March 18, 2020, MDOC distributed strict entrance screening requirements for entrance to the prisons that MDOC developed in consultation with the Maine CDC and MEMA. This screening applied to everyone entering MDOC facilities, from the warden all the way down and required that temperatures be taken and entrance questionnaires be completed. These screening requirements dictated that entry would be automatically denied if the person had done any air or cruise travel within the last 14 days. In addition, anyone displaying symptoms of COVID-19 would be denied entry. Any cases requiring additional discussion were to be referred to the MDOC Incident Command.
32. On March 18, 2020, MDOC suspended work release and community work programs, so that inmates would not be going out into and returning from the community and potentially being exposed to COVID-19.
33. On March 23, 2020, the U.S. CDC issued particular guidelines for correctional facilities. A true and correct copy of those guidelines is attached to this affidavit as Exhibit C. The guidelines lay out best practices and often lay out alternatives. MDOC adheres to the U.S. CDC guidelines except in limited cases in which adherence is infeasible given the physical parameters of MDOC’s facilities. For example, MSP has two large ball fields for recreation, making it easier to keep the recommended distance there than in recreation spaces and program areas at Mountain View. Similarly, staff are being screened in the lobby at MSP but are being screened outside in a tent at MCC, based on the extremely small lobby area at its entrance.
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34. MDOC issued N-95 mask fit-testing and facial hair guidance to staff on March 24, 2020, and provided guidance to the Chief Administrative Officers regarding staff returning to work after absences.
35. On March 31, 2020, MDOC began publishing on the web every weekday information regarding COVID-19 in MDOC facilities on the “Daily COVID-19 Dashboard,” available at maine.gov/corrections. That Dashboard continues to be updated every weekday. The information posted includes the number of inmates tested, the number of pending tests, the number of positive results and negative results, the number of inmates refusing the tests, as well as population data and data on the Supervised Community Confinement Program. As of today, May 27, 2020, the Dashboard reflects that 494 inmates have been tested, that 3 have refused, that only 4 have tested positive, and that 487 have tested negative for COVID-19. The testing numbers include all inmates and staff at MCC.
36. On March 31, the Commissioner sent a notice to all MDOC staff regarding an employee at Bolduc Correctional Facility who had tested positive for COVID-19. The same day, the Commissioner issued a statement to the press about the positive staff test.
37. As a result of this positive staff test, on April 1, 2020, MDOC issued a directive regarding positive case reporting and “contact tracing” to the Chief Administrative Officers. The Maine CDC provided MDOC with guidelines for “contact tracing” upon any positive COVID-19 test, which means identifying contacts within six feet of the positive-tested person for 30 minutes or longer during the forty-eight hours prior to the person showing symptoms and testing and quarantining them, and identifying other, less significant contacts. MDOC’s directive also calls for notifying all inmates and staff at the site of a positive test, without the person’s identifying information.
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38. As of April 6, 2020, MDOC dictated that all new inmate intakes would be met in receiving by staff wearing full PPE (n95 masks, face shields, gowns, and gloves) for an initial assessment by medical, including COVID-19 screening questions.
39. Also as of April 6, all MDOC facilities implemented video-based visitation (utilizing Zoom technology). All inmates are permitted at least one fifteen-minute Zoom visit per month and more as facility schedules and resources allow.
40. On April 7, MDOC issued guidance to the Chief Administrative Officers on staff and inmate use of cloth masks. This guidance followed guidance issued by the U.S. CDC on April 3, 2020, recommending use of such masks by non-symptomatic individuals. As of April 10, each inmate would and did receive a cloth mask, and a second mask was issued on April 13. Those inmates refusing masks were logged (but also permitted to later request a mask). The guidance stressed that the U.S. CDC recommended physical distancing and hand washing to manage the spread of virus and that cloth masks were not a substitute for this and other U.S. CDC recommendations. The MDOC guidance also specified that medical-grade PPE would only be utilized by facility staff and medical providers potentially coming into contact with someone exposed to COVID-19, symptomatic for COVID-19 or influenza, confirmed positive for COVID19 or influenza, or staff performing off-site transports in high risk locations such as the emergency room.
41. Since mid-April, MDOC industries workers have been producing PPE, including reusable gowns, face shields, and masks for use in DOC facilities (and distribution to jails and DHHS crisis workers).
42. As of April 13, MDOC required social distancing practices to be followed in all facility areas outside of an inmate’s individual cell/living area, where practical and possible.
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43. Also on April 13, MDOC required that cloth face masks be used in all facility areas when and where social distancing is not available. This is subject to practical limits. In a dining hall, for example, inmates cannot eat while wearing a mask. MDOC is issuing disciplinary sanctions against inmates failing to comply with this policy. I am unaware of any staff thus far refusing to abide by this directive, but any refusal would be treated the same as that employee refusing any other order.
44. As of April 13, MDOC required each facility to implement plans to modify necessary operations to allow for enhanced social distancing practices (i.e. to accommodate altered meal schedules, or reduced numbers in activities areas), while maintaining activities and recreation periods, where practical.
45. On April 28, 2020, MDOC industries produced an N95 fit-testing hood prototype, at the request of Maine CDC, to provide hoods for statewide usage.
46. On April 29, MDOC launched a process for inmates to request to see behavioral health by using the tablet computers, rather than having to make an in-person or hand-written request.
47. Also in April, MDOC developed a plan to expand medical services in secure facilities, in case of an overflow of COVID-19 cases at local hospitals and emergency rooms.
48. Within a prison housing unit, inmates are instructed to distance to the extent possible. Just as the U.S. CDC advises members of the general population to distance outside of their direct household, inmates are encouraged to distance outside of their cells. For example, in a four-person dorm room at a Mountain View dormitory, those four inmates are not always able to maintain six feet of distance during the times they are confined to their rooms (overnight and for two daytime count periods of approximately 60-90 minutes). These inmates are not required to
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wear masks in their four-person dorm room or while they are on their own floor of the building but are instructed to distance as much as possible. The dormitory inmates also eat and move separately from inmates assigned to other floors.
49. In every MDOC facility, including in each dorm at Mountain View, inmates have access to hand sanitizer with a 70% alcohol content. The U.S. CDC generally recommends handwashing over hand sanitizer, but if hand sanitizer is used, the CDC recommends that it contain at least a 60% alcohol content. At Mountain View, as at other facilities, this hand sanitizer is stored behind the officer’s desk, and the officer dispenses it, due to the 70% alcohol content and potential for misuse. Attached as Exhibit D to this affidavit are true and correct copies of photographs (taken May 22, 2020) of the hand sanitizer in use at the Mountain View dormitories. The same hand sanitizer was in use in April 2020.
50. On April 13, the county jails and MDOC agreed that admissions of inmates to MDOC facilities from county jails would be suspended. On May 15, 2020, Governor Mills issued Executive Order 54, mandating that there would be no admissions from county jails to MDOC until the emergency declaration ends.
51. On April 29, Governor Mills extended the Stay-Healthy-at-Home Order until June 1, and MDOC also alerted inmates and staff that all of MDOC’s COVID-19 related practices would extend until June 1, 2020, including restrictions on in-person visitation. This information was also posted on MDOC’s website.
Phase III Response 52. Phase 3 of the Response Plan was initiated on May 19 for MCC, due to the positive test there. Phase 3 means that recreation, education, and other programming and most inmate movement are stopped at MCC (“locked down”) to limit contact between groups of inmates. Phase
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3 also means that officers coming into contact with inmates are using n95 masks, that inmates receive meals in their housing units, that medication is administered in the housing unit, and that inmate “sick calls” (medical requests or needs) are triaged in the housing unit when possible, instead of having the inmates visit the clinic at MCC. Emergency medical care and care in the MCC clinic are still provided, as needed. This lockdown period will last at least through the next round of testing, which began on May 27. Depending on the results of that re-testing, the lockdown may need to continue.
53. The other MDOC facilities continue to take Phase 2 precautions. MDOC applies Phase 3 procedures only to facilities where a positive case has been found, because these restrictions result in a lockdown status that substantially limits inmate access to recreation, programs like education, and out of cell time. MDOC works to limit the duration of those substantial restrictions. There is very little risk that the cases found at MCC will be the source of infection at other MDOC facilities. In the last month, the only inmate transfers from MCC to another facility were three inmates who had to be transferred to MSP. One was transferred to the Intensive Mental Health Unit at MSP due to his urgent mental health needs. The second inmate transferred from MCC to MSP after seriously assaulting a staff member at MCC. Due to this staff assault, that inmate would likely be housed in restricted housing for several weeks at a minimum (depending on the outcome of the disciplinary process). That inmate could not remain at MCC, because MCC’s restrictive housing area is designed for only short stays. At MSP, that inmate would have expanded recreation and out-of-cell time. The third transfer (on May 27, 2020) was necessary for the inmate to obtain medical and behavioral health treatment. He was tested for COVID-19 for a second time before transfer, and the result was negative.
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54. When MDOC received the first positive MCC test, MDOC isolated the two inmates who had recently transferred from MCC and tested them for COVID-19.
Current Status of COVID-19 in MDOC Facilities: 55. MDOC did not have a confirmed case of COVID-19 until May 19, 2020, when an inmate at MCC tested positive. At that point, MDOC began immediate testing, starting with those potentially exposed to that confirmed case. All inmates and staff at MCC were tested by May 22, 2020, save for the handful of inmates who refused, resulting in four positive inmate tests and no positive staff tests. The second positive inmate case was confirmed on May 22, 2020, and two additional cases were confirmed on May 23. All four inmates who tested positive were housed at MCC and have been placed in isolation there. Wellpath medical providers are caring for them, with nursing staff attending to them multiple times per day. None of the four have required hospitalization. Their identities are not being released to protect their privacy. Three are under age 50, and one in is in his late 60s (and has been in prison since 1998). 56. These inmates will remain isolated for at least fourteen days from the date of their positive test and will not be reintegrated with other inmates until they are symptom-free and have had two confirmed negative COVID-19 tests. 57. Given these four positive tests, on May 24, 2020, MDOC submitted a plan to the Maine CDC to perform another round of universal testing. The Maine CDC approved the plan, and the re-testing began May 27. It will be conducted in waves and is expected to be completed by June 1. This is in line with the Maine CDC’s universal re-testing recommendations, in particular that correctional staff who tested negative not be tested again for seven days. See May 23, 2020 Maine Health Alert Network Public Health Advisory, a true and correct copy of which is attached as Exhibit E to this affidavit.
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58. The Maine CDC does not recommend testing at other MDOC facilities until there is a reason to believe inmates or staff in those facilities have been exposed or are suspected of having COVID-19. See May 23, 2020 Maine Health Alert Network Public Health Advisory (Ex. E) p. 1.
59. Within hours of learning of the first positive test, MDOC notified staff, and Commissioner Liberty notified the appropriate legislative representatives. Also within hours of the first positive test, MDOC issued a press release to keep the public apprised of the current status of COVID-19 in MDOC facilities and the steps taken to reduce the spread of the virus. The MDOC press release regarding the first positive inmate was filed with the Court on May 20, 2020, at ECF No. 13-1.
60. Within hours of each subsequent confirmed test, MDOC has issued a press release, keeping the public apprised of the current status of COVID-19 in MDOC facilities and the steps taken to reduce the spread of the virus. A true and correct copy of the MDOC press releases regarding the confirmed positive cases on May 22 and 23 are attached to this affidavit as Exhibits F and G.
61. On May 23, 2020, the warden of Maine Correctional Center, Scott Landry, declared an emergency at the prison, and Commissioner Liberty obtained approval from Governor Mills to divert staff to the Maine Correctional Center to ensure the facility can adequately address the emergency and to assist in universal re-testing at MCC. During this emergency period at MCC, more staff is needed, because the facility will be locked down and inmate movement restricted to reduce the spread of COVID-19. Additional officers are needed for meal delivery, laundry, and escorting medical personnel during COVID-19 re-testing.
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Supervised Community Confinement & Medical Furlough Programs: 62. In mid-March 2020, MDOC and Wellpath compiled a list of inmates with conditions considered by the U.S. CDC to place them at higher risk of illness from COVID-19, including asthma, hypertension, chronic lung disease, chronic kidney disease, diabetes, liver disease, and certain other conditions. MDOC continues to maintain that list, which comprises over 900 inmates, and evaluate inmates for SCCP. MDOC also asked Wellpath to provide a list of inmates with such conditions who should have priority for consideration for the Supervised Community Confinement Program (“SCCP”). MDOC’s Classification Department then evaluated every inmate on these lists (starting with those identified by Wellpath as most at risk) for potential placement on SCCP. The Classification Department had to determine which inmates were statutorily eligible under 34-A M.R.S. 3036-A and 03-201 C.M.R. ch. 10. Many of these inmates did not meet statutory or regulatory eligibility requirements based on their sentence and/or security level (see 34-A M.R.S. §§ 3036-A(2) & 03-201 C.M.R. ch. 10, pt. VI(B)). 63. For the remaining potentially-eligible inmates, the MDOC Classification Department reviewed each inmate’s case for potential SCCP placement. Certain aspects of the SCCP investigations that are typically required (which include inspecting the proposed residence, contacting local law enforcement, and contacting victims, among other steps) were modified to fast-track releases to SCCP for inmates meeting certain criteria. Since March 1, 2020, 95 inmates (including men and women) have been released to SCCP. Five have since returned to custody for substance abuse, removal from sober living programs, and other issues. Twenty more inmates are currently in some phase of the SCCP process (completing the application process with their unit team, having probation evaluate their proposed transition plan, or awaiting their SCCP release date).
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64. It is not accurate to claim that MDOC has imposed stricter-than-usual requirements on the SCCP program since the start of the pandemic. Rather, as described above, MDOC is expediting placements for inmates who meet certain criteria, such as having less than one year remaining on their sentences, by conducting expedited investigations of the proposed home in which the inmate would live. MDOC continues to consider inmates for SCCP if they meet statutory and regulatory requirements even if they do not meet the new criteria for an expedited placement.
65. The authority for the Commissioner to release inmates to SCCP is by statute, and the statute sets limits on that authority. For example, inmates are not eligible for SCCP if they have a security classification level higher than minimum. 34-A M.R.S. § 3036-A(2)(D). Inmates are also not eligible until they have less than 18 months left on their sentence and until they have served a portion of their sentence (1/2 of the prison term if it is less than five years, 2/3 of the prison term if it is more than 5 years).4 34-A M.R.S. §§ 3036-A(2)(B), (C).
66. As directed by 34-A M.R.S. § 3036-A(1), the Commissioner set rules governing the SCCP program in a written policy, a true and correct copy of which is attached as Exhibit H. The SCCP Policy and the statute specify that to be approved for SCCP, an inmate must have a proposed residence that is approved by MDOC. (Ex. H Procedure C; 34-A M.R.S. § 3036-A(3)(B). The SCCP Policy specifies that the residence must also not be the residence of other offenders or crime victims. (Ex. H Procedure C).
67. It is especially important during a pandemic that inmates not be released without an appropriate residence.5 Homeless shelters are not appropriate residences for inmates released
4 The statute is more nuanced, addressing “split sentences” (not straight prison time), which are more common. 5 For inmates who finish their sentence and are to be released during the COVID-19 pandemic, MDOC staff coordinates release plans and placements with those inmates months in advance, helping them prepare for office and service closures due to COVID-19. Even before the pandemic, MDOC has done pre-release planning for inmates, which involves assisting inmates in searching for housing and obtaining medical insurance and care (including medically-assisted treatment for addiction) after release.
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on SCCP, because of the impossibility of determining if the homeless shelter also houses other offenders or crime victims. In addition, there have been media reports of large-scale spread of COVID-19 in homeless shelters, both in Maine and elsewhere. See, e.g., Callie Ferguson, “Bangor homeless shelter records coronavirus outbreak among 20 residents and staff,” Bangor Daily News (May 5, 2020), https://bangordailynews.com/2020/04/29/mainefocus/bangor-homeless-shelterrecords-coronavirus-outbreak-among-20-residents-and-staff/. Release of an inmate on SCCP to a homeless shelter would place the inmate at a high risk of contracting the virus.
68. Some of the 900+ inmates with pre-existing medical conditions are incarcerated for violent crimes, including murder, sex offenses, arson, and other violent crimes. Some are currently housed in higher security housing units due to the danger that they have been deemed to pose to staff and other inmates. Releasing such inmates on unsupervised medical furlough would pose a danger to the victims of these offenders and to the community at large. Such releases would also violate the SCCP statute, which makes the program only available to minimum custody inmates.
69. During the process of evaluating inmates for SCCP, the Commissioner of MDOC and others met several times with representatives of the Maine ACLU, including Emma Bond, and provided her with the number of inmates with the medical conditions identified by the U.S. CDC as having an increased risk from COVID-19. MDOC also provided the Maine ACLU with information on their crimes (whether violent or non-violent). The Maine ACLU requested that all 900+ inmates be released on medical furlough.
70. Medical furlough is controlled by 34-A M.R.S. § 3035(2)(C), which states that a “furlough may be granted for the obtaining of medical services for a period longer than 10 days if medically required.” (Emphasis added.) In the past, MDOC has used medical furlough (usually for a short time) when a medical provider believes that medical treatment or a medical procedure
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is necessary, and it cannot be done within MDOC or within ten days at a hospital. There is no monitoring of individuals on medical furlough. MDOC is not presently using medical furlough to release inmates with hypertension, for example, simply because of the risk of COVID-19. Such inmates are not seeking release to obtain medical services, nor has a physician deemed it medically required to release these inmates for obtaining medical services to bring them within 34-A M.R.S. § 3035(2)(C). Not only that, but many medical services normally available in the community have been halted due to COVID-19, unless they are emergent.
Conclusion: 71. Prison populations in other states face a much graver threat from COVID-19 and have many more inmates afflicted with the virus. I or another member of the Department’s Incident Command Team participate in weekly calls with the heads of other state prison systems. From these interactions, I have learned that Ohio has over 4,400 confirmed inmate cases of COVID-19 and has had over 60 inmate deaths. Michigan has over 3,000 confirmed cases and has had over 50 inmate deaths. 72. MDOC has been able to stave off the entrance and spread of COVID-19 in Maine’s facilities for quite some time. It is remarkable that after testing the entire population (inmates, staff, and medical) at MCC over a four-day span, only four positive cases were found. I attribute MDOC’s ability to delay and limit COVID-19’s impact to MDOC’s immense early planning and the swift action MDOC took to limit movement in and out of the prisons, to maintain clean facilities, and to provide inmates and staff with information regarding the virus and effective means of stopping the spread of germs.
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73. I believe that these continued efforts and the measures MDOC has taken since learning of the positive cases show that the leadership at MDOC, in conjunction with the Maine CDC and the Governor’s Office, are acting with the highest concern for MDOC inmates and staff.
I declare under penalty of perjury that the foregoing is true and correct.

May 27, 2020

/s/ Ryan Thornell Ryan Thornell, Ph. D. Deputy Commissioner of Corrections Maine Department of Corrections

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Exhibit A

Case 1:20-cv-00175-JAW Document 20-1 Filed 05/27/20 Page 2 of 4 PageID #: 427

JANET T. MILLS GOVERNOR

STATE OF MAINE DEPARTMENT OF CORRECTIONS
111 STATE HOUSE STATION AUGUSTA MAINE 04333-0111

RANDALL A. LIBERTY COMMISSIONER

Memo—
To: All staff of the Department of Corrections From: Commissioner Randall A. Liberty Cc: Robert Long, Maine CDC
Scott Ogden, Governor’s Office Date: March 5, 2020 Re: Coronavirus

Dear Staff,
On Tuesday, March 3, Governor Mills sent an email to all State employees outlining Maine’s preparations and response to the coronavirus (COVID-19). If you have not read it, please do so. Even though there are no confirmed cases in Maine and the risk to Mainers remains low I encourage you to also review the federal CDC’s website and the Maine CDC’s website on COVID-19. These websites provide factual, up to date information and offer useful strategies to help us think about and plan for the potential spread within DOC facilities and offices.
I am part of the Governor’s Coronavirus Response Team, which means I am receiving regular briefings from the Maine CDC and Maine Emergency Management Agency (MEMA). As part of this response team I am in regular communication with other agencies, health authorities and leaders focused on prevention, preparedness, and management of any future cases in Maine.
This memo serves as official communication to all staff on DOC’s approach and response to COVID-19. I will utilize this method going forward to make you aware of new information or changes to DOC practices and procedures.
To keep an organized flow of communication I ask that you reach out to your CAO or office director when you have questions. They, in turn, will reach out to Deputy Commissioner Thornell and myself who will confer with an internal team and others including Maine CDC and MEMA as necessary. It is important staff respect this chain of communication, rather than individually reaching out to CDC, MEMA or others.
Under my direction the DOC is taking a phased approach to prevention and management related to COVID-19. The first phase, which is what we are currently in, is focused on prevention and preparation. You will find these methods similar to approaches taken during influenza outbreaks.

Memo 001-COVID-19.

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Your CAO or office director will provide you details on implementation of the following phase one prevention and preparation procedures:
▪ Increased cleaning practices at all facilities and offices. ▪ Increased cleaning of tablets, TVs, kiosks, computers, gym equipment, other shared items. ▪ Review of practices related to visitation. ▪ Use of appropriate signage and communication in our facility and office lobby areas. ▪ Review of practices related to outside volunteers and vendors. ▪ Review of practices related to work release and employers. ▪ Review of exposure and quarantine practices, in line with CDC recommendations. ▪ Review of medical practices related to transmission prevention and management. ▪ Review of and changes to MAT and medication administration practices. ▪ Review of HR-related policies. ▪ Review of communication plans within facilities, offices, and between other State agencies.
Additional prevention and preparation procedures may be added in phase one depending on your location and responsibilities.
Please note the CDC does not recommend the use of facemasks as a preventative measure for those without symptoms. For now, facemask use remains necessary only for individuals showing symptom of a virus, like the flu or RSV as deemed necessary by Wellpath.
Phase two will focus on changes to procedures if there are confirmed COVID-19 cases in Maine. Phase three will focus on facility and office management if there are confirmed cases in a DOC or county jail facility.
It is my goal to provide you information about how the DOC will handle phase two and phase three before we enter these phases. DOC staff are working closely with Wellpath, Maine CDC, MEMA, Bureau of Human Resources, Department of Labor and the Governor on these plans now.
There are many steps we should be taking personally to prevent the spread of germs, but please don’t forget to check in on one another’s emotional wellness too. The safety and security of our operations is paramount, and so is your personal health and wellness.
Panic, stress and anxiety can impact our health. I’m requesting that our peer-support teams pay close attention to the toll this virus may have on staff mental health and, in consultation with CAOs put practices in place to support one another.
The State of Maine has experienced and dedicated public health and emergency management staff. I am confident in their abilities to lead us through prevention, preparedness and response to COVID-19.
As we work through this new and everchanging situation I ask you to be pillars of calm. Review the CDC’s website, communicate your questions and concerns to your CAOs, allow for the flow of communication to work, and take the precautions outlined below by the CDC.
You do good work on behalf of the people of Maine. Let’s keep informed, let’s keep safe, and let’s keep on track.
Thank you for all you do.
Commissioner Liberty
Memo 001-COVID-19.

Case 1:20-cv-00175-JAW Document 20-1 Filed 05/27/20 Page 4 of 4 PageID #: 429

JANET T. MILLS GOVERNOR

STATE OF MAINE DEPARTMENT OF CORRECTIONS
111 STATE HOUSE STATION AUGUSTA MAINE 04333-0111

RANDALL A. LIBERTY COMMISSIONER

From the U.S. Center for Disease Control and Prevention: When and How to Wash Your Hands
Handwashing is one of the best ways to protect yourself and your family from getting sick. Learn when and how you should wash your hands to stay healthy.
Wash Your Hands Often to Stay Healthy
You can help yourself and your loved ones stay healthy by washing your hands often, especially during these key times when you are likely to get and spread germs:
• Before, during, and after preparing food • Before eating food • Before and after caring for someone at home who is sick with vomiting or diarrhea • Before and after treating a cut or wound • After using the toilet • After changing diapers or cleaning up a child who has used the toilet • After blowing your nose, coughing, or sneezing • After touching an animal, animal feed, or animal waste • After handling pet food or pet treats • After touching garbage • After going to the store
Follow Five Steps to Wash Your Hands the Right Way
Washing your hands is easy, and it’s one of the most effective ways to prevent the spread of germs. Clean hands can stop germs from spreading from one person to another and throughout an entire community—from your home and workplace to childcare facilities and hospitals.
Follow these five steps every time.
1. Wet your hands with clean, running water (warm or cold), turn off the tap, and apply soap. 2. Lather your hands by rubbing them together with the soap. Lather the backs of your hands, between your
fingers, and under your nails. 3. Scrub your hands for at least 20 seconds. Need a timer? Hum the “Happy Birthday” song from beginning to end
twice. 4. Rinse your hands well under clean, running water. 5. Dry your hands using a clean towel or air dry them.
Maine CDC website: https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus.shtml U.S. CDC website: https://www.cdc.gov/coronavirus/2019-nCoV/index.html
Memo 001-COVID-19.

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Exhibit B

Case 1:20-cv-00175-JAW Document 20-2 Filed 05/27/20 Page 2 of 3 PageID #: 431

JANET T. MILLS GOVERNOR

STATE OF MAINE DEPARTMENT OF CORRECTIONS
111 STATE HOUSE STATION AUGUSTA MAINE 04333-0111

RANDALL A. LIBERTY COMMISSIONER

Memo— UPDATE
To: All Staff of the Department of Corrections From: Commissioner Randall A. Liberty Date: March 13, 2020 Re: Coronavirus, Memo

Dear Staff,
Given the speed with which we are hearing about presumptive COVID-19 cases in Maine communities, we are now in phase two.
This memo communicates changes to current practices in the prevention of COVID-19. Dates for when these changes go into effect are noted below. We will monitor and reevaluate these practices and dates as necessary.
In keeping with national trends to reduce the spread of COVID-19 the Department of Corrections will:
Effective Saturday, March 14, 2020:
1. DOC facilities are suspending visits. This includes visits from family, friends, other non-professional visitors and volunteers who lead programs and activities. The Department is actively working on reducing or eliminating phone commission rates during this time. This will remain in effect for 14 days: March 14-March 28, 2020.
2. Alternate reporting requirements for adult and juvenile probation clients will go into effect. All reporting will take place via phone, video chat, or email. Additional information for probation staff will be communicated by Director of Adult Community Corrections Susan Gagnon and Associate Commissioner of Juvenile Services Colin O’Neill. This will remain in effect for 14 days: March 14-March 28, 2020.
3. Home visits, site visits, and field work performed by adult and juvenile probation staff will be suspended. Staff will continue to report to assigned offices, as normal. Additional information for probation staff will be communicated by Director of Adult Community Corrections Susan Gagnon and Associate Commissioner of Juvenile Services Colin O’Neill. This will remain in effect for 14 days: March 14-March 28, 2020.
Effective Monday, March 16, 2020
4. All general population adult intakes and transfers will go through MCC only. This does not apply to IMHU clients or approved county jail safekeepers, which will continue to go directly to MSP. This will remain in effect until further notice.

Memo. 003. All staff

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5. All juvenile intakes will go through Long Creek, including those in Northern Maine. This will remain in effect until further notice.
6. As per the Governor’s direction on March 12, 2020 all non-essential State employee travel outside the State of Maine will be suspended for 30 days.
7. All non-essential Department of Corrections in-person meetings should be conducted electronically. 8. Cross facility shift work will be suspended. Staff will work in their assigned locations unless otherwise
altered. MSP and BCF are considered one location for now. Our phased approach has been working well. I urge you to continue to remain calm, follow U.S. CDC guidelines to keep yourself healthy. Our goal remains safety, security, and health of our staff and clients. Unless otherwise directed, or noted above, all employees will continue to work as usual. If you are ill and unable to come to work, please follow current practices of notifying your shift commander or supervisor. If your call-out is clearly not related to COVID-19 your shift manager will approve or deny as usual. Call-outs that are related or potentially related to COVID-19 will be reported by your manager to CAOs or office director through already established communication channels. If notification to the Maine CDC or MEMA is required, I will make that notification. At this point you do not need to contact the Maine CDC or MEMA unless directed to do so by your medical practitioner. When calling out, be advised that you will be using sick leave, as current practice. If your illness is related or potentially related to COVID-19 and you do not have enough accumulated sick leave you may be approved to use available vacation, comp time, and/or personal leave. If COVID-19 progresses in Maine and in DOC facilities, we anticipate fielding many unique HR scenarios, we also anticipate changes to mandated overtime or identification of essential staff. Please speak with your facility or office HR representative ASAP if you foresee issues to your ability to work. Lastly, thank you for your continued professionalism. This is uncharted territory, but we’re in it together. We will remain calm.
Commissioner Liberty
Memo 003 All Staff

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Exhibit C

Case 1:20-cv-00175-JAW Document 20-3 Filed 05/27/20 Page 2 of 27 PageID #: 434
Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities

This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of March 23, 2020.
The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the following CDC website periodically for updated interim guidance: https://www.cdc.gov/coronavirus/2019-ncov/index.html.
This document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available.

In this guidance
• Who is the intended audience for this guidance?
• Why is this guidance being issued?
• What topics does this guidance include?
• Definitions of Commonly Used Terms
• Facilities with Limited Onsite Healthcare Services
• COVID-19 Guidance for Correctional Facilities
• Operational Preparedness
• Prevention
• Management
• Infection Control
• Clinical Care of COVID-19 Cases
• Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
• Verbal Screening and Temperature Check Protocols for Incarcerated/ Detained Persons, Staff, and Visitors

Who is the intended audience for this guidance?
This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e., US Immigration and Customs Enforcement and US Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings.
This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance.

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Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
• In most cases, incarcerated/detained persons are not permitted to leave the facility.
• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.
• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
• Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles.
• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.
• Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.
• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
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This guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
√ Operational and communications preparations for COVID-19
√ Enhanced cleaning/disinfecting and hygiene practices
√ Social distancing strategies to increase space between individuals in the facility
√ How to limit transmission from visitors
√ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages
√ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors
√ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited
√ Healthcare evaluation for suspected cases, including testing for COVID-19
√ Clinical care for confirmed and suspected cases
√ Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting—Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
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Confirmed vs. Suspected COVID-19 case—A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case.
Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed.
Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication.
Staff—In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators.
Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
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The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/ detained persons and staff, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
√ Develop information-sharing systems with partners. ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility.
ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses.
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ο Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff.
ο Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.
√ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19. ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/ or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting. ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care. ο Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity. ο Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes.
√ Coordinate with local law enforcement and court officials. ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.
√ Post signage throughout the facility communicating the following: ο For all: symptoms of COVID-19 and hand hygiene instructions ο For incarcerated/detained persons: report symptoms to staff ο For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor. ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
Personnel Practices
√ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staff to stay home when sick. ο If these policies do not encourage staff to stay home when sick, discuss with the contract company. ο Determine which officials will have the authority to send symptomatic staff home.
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√ Identify staff whose duties would allow them to work from home. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission. ο Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so. ο Put systems in place to implement work from home programs (e.g., time tracking, etc.).
√ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. ο Allow staff to work from home when possible, within the scope of their duties. ο Identify critical job functions and plan for alternative coverage by cross-training staff where possible. ο Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages.
√ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19.
√ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
√ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health.
√ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
√ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs ο Tissues ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. ο Hand drying supplies ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ο Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19
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ο Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when face masks are acceptable alternatives to N95s.
ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated
√ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ο See CDC guidance optimizing PPE supplies.
√ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.
√ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
√ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.
√ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.
Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.
Operations
√ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities
√ Communicate with the public about any changes to facility operations, including visitation programs.
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√ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ Implement lawful alternatives to in-person court appearances where permissible.
√ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms.
√ Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
√ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
√ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs). ο Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
√ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
√ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
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Hygiene
√ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
√ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use.
ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
ο Avoid touching your eyes, nose, or mouth without cleaning your hands first. ο Avoid sharing eating utensils, dishes, and cups. ο Avoid non-essential physical contact.
√ Provide incarcerated/detained persons and staff no-cost access to: ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing.
ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal
√ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.
√ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.
Prevention Practices for Incarcerated/Detained Persons
√ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below).
ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):  Require the individual to wear a face mask.  Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE.  Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.
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ο If an individual is a close contact of a known COVID-19 case (but has no COVID-19 symptoms):  Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care.
√ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: ο Common areas:  Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area) ο Recreation:  Choose recreation spaces where individuals can spread out  Stagger time in recreation spaces  Restrict recreation space usage to a single housing unit per space (where feasible) ο Meals:  Stagger meals  Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table)  Provide meals inside housing units or cells ο Group activities:  Limit the size of group activities  Increase space between individuals during group activities  Suspend group programs where participants are likely to be in closer contact than they are in their housing environment  Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out ο Housing:  If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)  Arrange bunks so that individuals sleep head to foot to increase the distance between them  Rearrange scheduled movements to minimize mixing of individuals from different housing areas ο Medical:  If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.  Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
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√ Communicate clearly and frequently with incarcerated/detained persons about changes to their daily routine and how they can contribute to risk reduction.
√ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
√ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
√ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staff at the first sign of illness
√ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staff
√ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staff home who do not clear the screening process, and advise them to follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.
√ Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staff develop a fever, cough, or shortness of breath while at work: immediately put on a face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
√ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
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√ When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
√ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
Prevention Practices for Visitors
√ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staff performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening.
√ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas.
√ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy.
√ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors.
√ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
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If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits.
√ Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
Operations
√ Implement alternate work arrangements deemed feasible in the Operational Preparedness section.
√ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
√ When possible, arrange lawful alternatives to in-person court appearances.
√ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.)  If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.  If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.  Before releasing an incarcerated/detained individual with COVID-19 symptoms to a communitybased facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
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√ Coordinate with state, local, tribal, and/or territorial health departments. ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. ο When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
√ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.)
√ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
√ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
√ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Confirmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
√ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
√ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible.
√ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
√ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
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ο If cohorting is necessary:  Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.  Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.  Ensure that cohorted cases wear face masks at all times.
√ In order of preference, individuals under medical isolation should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above. ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
If the ideal choice does not exist in a facility, use the next best alternative.
√ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.) ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
√ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
√ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.
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√ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
√ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria.
For individuals who will be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart
For individuals who will NOT be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  At least 7 days have passed since the first symptoms appeared
For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ο The individual has had no subsequent illness
√ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
Cleaning Spaces where COVID-19 Cases Spent Time
Thoroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases.
ο Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
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√ Hard (non-porous) surface cleaning and disinfection ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. ο For disinfection, most common EPA-registered household disinfectants should be effective. Choose cleaning products based on security requirements within the facility.  Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).  Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
√ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:  If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.  Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces.
√ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present.  Follow the manufacturer’s instructions for all cleaning and disinfection products.  Consider use of wipeable covers for electronics.  If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
√ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
√ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
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ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
√ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
Quarantining Close Contacts of COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.
√ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines). ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.
√ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they: ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)
Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
√ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible.
√ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately. ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place. ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.
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ο If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started.
√ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.)
√ In order of preference, multiple quarantined individuals should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements
(NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
√ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1): ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals). ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space. ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason. ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks.
√ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1). ο Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.
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√ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.) ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
√ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period. ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
√ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
√ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
√ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care.
√ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
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√ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
√ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
√ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
√ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check.
√ Consider additional options to intensify social distancing within the facility.
Management Strategies for Staff
√ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff.
√ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for definition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staff.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/ detained persons may have with confirmed or suspected COVID-19 cases.
√ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
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ο Implement the above guidance as fully as possible within the correctional/detention context. Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs.
ο Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).
√ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).
√ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.
Clinical Care of COVID-19 Cases
√ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital. ο The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
√ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.
√ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask. ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza).
√ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide.
√ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.
Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
√ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.
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ο 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
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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.

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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

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Exhibit D

Case 1:20-cv-00175-JAW Document 20-4 Filed 05/27/20 Page 2 of 3 PageID #: 461

Case 1:20-cv-00175-JAW Document 20-4 Filed 05/27/20 Page 3 of 3 PageID #: 462

Case 1:20-cv-00175-JAW Document 20-5 Filed 05/27/20 Page 1 of 3 PageID #: 463
Exhibit E

Case 1:20-cv-00175-JAW Document 20-5 Filed 05/27/20 Page 2 of 3 PageID #: 464

Department of Health and Human Services Maine Center for Disease Control and Prevention
286 Water Street 11 State House Station Augusta, Maine 04333-0011 Tel: (207) 287-8016; Fax (207) 287-9058 TTY Users: Dial 711 (Maine Relay)

Maine Health Alert Network (HAN) System
PUBLIC HEALTH ADVISORY

To: From: Subject: Date / Time: Pages: Priority: Message ID:

All Health Care Dr. Siiri Bennett, State Epidemiologist Universal Testing in Congregate Living Settings Saturday, May 23, 2020 at 6:10PM 2 Normal 2020PHADV023

UNIVERSAL TESTING IN CONGREGATE LIVING SETTINGS
Maine CDC has adopted the following recommendations regarding universal testing in congregate living settings. This policy may be updated as scientific understanding of COVID-19 evolves.
I. BACKGROUND
• This guidance applies where a single, confirmed case of COVID-19 (using a SARS-CoV-2 PCR test) is detected among staff or residents of a congregate living setting. Such settings include, though are not limited to, long-term care facilities, shelters for people experiencing homelessness, correctional facilities, group homes, and assisted living facilities.
• Universal testing in this context refers to testing done by unit or building, not at a facility level, unless staff are shared or rotate among various units or buildings.
• This policy is a recommendation; facilities may opt to pursue universal testing before a single case is confirmed.
• For mass testing at this time, Maine CDC’s Health and Environmental Testing Laboratory (HETL) will only test samples collected pursuant to this policy (i.e., when there has been at least one confirmed COVID-19 case).
II. UNIVERSAL TESTING RECOMMENDATIONS
• When a congregate living setting as described above has a single case of confirmed COVID-19 among staff or residents, Maine CDC recommends universal testing for all other staff and residents in the unit or building, except as noted above.
• Facilities should conduct the sample collection using their own staff or outside staff, and must coordinate with a health care provider to order the tests and obtain all necessary and appropriate consent.
• HETL will test specimens collected by a facility pursuant to this policy. If a facility opts to send specimens to HETL for testing pursuant to this policy, the facility must:

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o Arrange for appropriate transport of the specimens to HETL; and o Notify Maine CDC epidemiology staff that samples are being sent to HETL prior to transport. o Facilities should email Coronavirus@maine.gov or call the case investigator and include the
number of specimens being sent and the approximate arrival time. o Facilities must first establish an account with HETL prior to sending any specimens. • Maine CDC may be able to furnish PPE and/or swabs and viral transport media, as Maine CDC supplies allow. • Tests done using supplies furnished by Maine CDC must be sent to HETL for testing. • Facilities may choose to use other laboratories to accomplish universal testing. Those laboratories may have preferred swabs and test kits, so please check with that laboratory before initiating sample collection.
III. RE-TESTING RECOMMENDATIONS
• For facilities in which universal testing has been recommended: 1. Maine CDC recommends re-testing of COVID-negative staff in facilities 7 days after the initial specimen collection. 2. If re-testing yields further COVID-positive staff, Maine CDC recommends re-testing of COVIDnegative staff every 7 days until there are 2 successive weeks of only negative tests, or when all staff have tested positive. Additional re-testing beyond these guidelines will not be performed at HETL.
• Maine CDC may recommend re-testing residents in the following circumstances: 1. There is a newly identified positive staff who worked in a unit where there are no COVIDpositive residents. 2. There is a newly identified, symptomatic, COVID-positive resident in a unit where there are no other known COVID-positive residents. 3. There are a significant number of new COVID-positive staff.
IV. CONSIDERATIONS FOR FACILITIES
• Staff who are COVID-positive will not be allowed to work for a minimum of 10 days. o Thus, facilities must ensure that they have a staffing plan in place prior to pursuing universal testing in accordance with this policy. o Certain facilities, such as long-term care facilities, are required to have such plans in place.
• Facilities will need to furnish a medical order for testing. This will not be supplied by Maine CDC. • Facilities must ensure that testing is on an opt-in basis and that residents and staff may decline. • Resident who decline testing should be considered close contacts and placed into quarantine for 14 days. • Staff who decline testing should be referred to internal HR policies. • Testing may be traumatic for certain patients. Mid-turbinate swabs are an acceptable alternative to
nasopharyngeal (NP) swabs, especially for clients for whom sedation is required or who are medically frail.

Maine Center for Disease Control and Prevention

2020PHADV023 – Universal Testing in Congregate Settings

2

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Exhibit F

Case 1:20-cv-00175-JAW Document 20-6 Filed 05/27/20 Page 2 of 2 PageID #: 467

JANET T. MILLS GOVERNOR

STATE OF MAINE DEPARTMENT OF CORRECTIONS
111 STATE HOUSE STATION AUGUSTA MAINE 04333-0111

RANDALL A. LIBERTY COMMISSIONER

May 22, 2020
PRESS RELEASE
  Media Contact:  Randall A. Liberty, Commissioner  (207) 530-3794  Anna.Black@Maine.Gov
Maine Department of Corrections Confirms Second Case of COVID-19      The Maine Department of Corrections (MDOC) today confirmed that a prisoner at the Maine Correctional Center (MCC) in Windham tested positive for COVID-19. This is the second case of a MDOC prisoner to be diagnosed with COVID-19.     The male inmate in his 30s was tested as part of the MCC campus wide testing that began May 19. The universal testing began in response to the first positive case confirmed on May 19. MDOC received confirmation from the state lab of this second positive case late this afternoon. To date, more than 700 test samples have been collected from staff, inmates and contracted vendors. MDOC has received back nearly 600 results, all but two negative.
The Department, in consultation with the Maine Center for Disease Control and Prevention (Maine CDC), has initiated previously developed protocols, including contact tracing in response.
The individual who has been in MDOC custody since March 2, 2018 has been moved to an isolation unit, as is standard MDOC practice in response to COVID-19. The individual has not required hospitalization.

##

PHONE: (207) 287-2711

(TTY) Maine Relay 711

FAX: (207) 287-4370

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Exhibit G

Case 1:20-cv-00175-JAW Document 20-7 Filed 05/27/20 Page 2 of 2 PageID #: 469

JANET T. MILLS GOVERNOR

STATE OF MAINE DEPARTMENT OF CORRECTIONS
111 STATE HOUSE STATION AUGUSTA MAINE 04333-0111

RANDALL A. LIBERTY COMMISSIONER

May 23, 2020
PRESS RELEASE
  Media Contact:  Randall A. Liberty, Commissioner  (207) 530-3794  Anna.Black@Maine.Gov
Maine Department of Corrections Confirms Third and Fourth Case of COVID-19      The Maine Department of Corrections (MDOC) today confirmed that two additional inmates at the Maine Correctional Center (MCC) in Windham tested positive for COVID-19. This is the third and fourth case of prisoners at MCC to be diagnosed with COVID-19.     The two inmates are both male, one in his early 40s the other in his late 60s. These individuals were tested as part of the MCC campus-wide testing that began May 19. This universal testing began in response to the first positive case confirmed on May 19. MDOC received confirmation from the state lab of these two new cases this afternoon. To date, 744 test samples have been collected from staff, inmates and contracted vendors. MDOC has received back all 283 staff tests, all of which are negative for COVID-19. All 461 inmates’ samples have been returned with four positives. The four positive include: the two announced today, one announced on May 22, and the first, announced May 19.
The man in his 40s has been in MDOC custody since May 2016. The other man has been in MDOC custody since June 1998. No hospitalization has been required for either individual. Both men have been moved to an isolation unit, as is standard MDOC practice in response to COVID-19. In the coming days Maine Center for Disease Control and Prevention (Maine CDC) and MDOC will discuss retesting.
The Department, in consultation with Maine CDC, is continuing previously developed protocols, including contact tracing and restricted movement within the facility in response.
###

1

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Exhibit H

Case 1:20-cv-00175-JAW Document 20-8 Filed 05/27/20 Page 2 of 22 PageID #: 471

POLICY TITLE: SUPERVISED COMMUNITY CONFINEMENT
POLICY NUMBER: 27.2
CHAPTER 27: RELEASE PREPARATION STATE of MAINE DEPARTMENT OF CORRECTIONS
Approved by Commissioner:

PAGE 1 of 21
PROFESSIONAL STANDARDS: See Section VII

EFFECTIVE DATE: July 8, 1998

LATEST REVISION: December 1, 2017

CHECK ONLY IF APA [ X ]

I. AUTHORITY

The Commissioner of Corrections adopts this policy pursuant to the authority contained in 34-A M.R.S.A. Section 3036-A.

II. APPLICABILITY

All Adult Correctional Facilities and Adult Community Corrections

III. POLICY

The purpose of the Supervised Community Confinement Program is to provide a means of successful reentry of prisoners into the community. Prisoners transferred to supervised community confinement are still considered prisoners while in the program. The place of confinement is in the community, rather than in a correctional facility. Participation in this program is a privilege that may be afforded to prisoners who meet the established criteria.

IV. CONTENTS

Procedure A: Procedure B: Procedure C: Procedure D: Procedure E: Procedure F: Procedure G: Procedure H: Procedure I:
Procedure J: Procedure K:

Supervised Community Confinement Program, General Eligibility Requirements Residence Requirements Application and Approval Process Documentation and Notification Mandatory Conditions Additional Conditions Supervision of Prisoners on Supervised Community Confinement Supervised Community Confinement for a Terminally Ill or Severely Incapacitated Prisoner Removal from Supervised Community Confinement Appeals of Denial of Transfer to or Removal from the Supervised Community Confinement Program

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V. ATTACHMENTS

Attachment A: Attachment B:
Attachment C:
Attachment D: Attachment E: Attachment F:
Attachment G: Attachment H:
Attachment I:

Supervised Community Confinement Application Authorization for the Disclosure of Information for the Purpose of Investigation by the Department of Corrections Request for Investigation for Transfer of Prisoner to Supervised Community Confinement Supervised Community Confinement Investigation Format Agreement for Warrantless Searches Notification of Consideration for Prisoner Transfer to Supervised Community Confinement Supervised Community Confinement Agreement Notification of Prisoner Transfer to Supervised Community Confinement Notice of Change(s) in Condition(s) of Supervised Community Confinement

VI. PROCEDURES:

Procedure A: Supervised Community Confinement Program, General

1. All transfers to supervised community confinement are granted at the discretion of the Department of Corrections and are considered a privilege, not a right.

2. Supervised community confinement allows eligible prisoners to be transferred to an approved residence in the community for reentry purposes. An approved residence in the community may consist of:
a. a home;
b. a full-time treatment facility, such as a residential substance abuse treatment facility or mental health facility;
c. transitional housing that provides support services for targeted groups, e.g., veterans, domestic violence victims, persons with mental illness, persons with substance abuse problems, etc.;
d. temporary housing associated with academic or vocational training or employment; or
e. a hospital or other appropriate care facility, such as a nursing facility, residential care facility or a facility that is a licensed hospice program pursuant to Title 22, section 8622.

3. A prisoner transferred to supervised community confinement must be involved in a program of work or education that is approved by the Commissioner, or designee, together with any treatment program that the Commissioner, or designee, might require. The Commissioner, or designee, may waive the requirement of involvement in a program of work or education while a prisoner is involved in an approved full-time treatment program.

POLICY NUMBER/TITLE
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CHAPTER NUMBER/TITLE 27. Release Preparation

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4. The Commissioner, or designee, shall be responsible for the overall administration of the Department’s Supervised Community Confinement Program (SCCP), which shall include, but not be limited to, the following:
a. application and screening for eligibility;
b. approval or denial;
c. conditions for prisoners while on supervised community confinement;
d. notifications to the Department’s Director of Victim Services and appropriate criminal justice agencies;
e. supervision of prisoners while on supervised community confinement;
f. documentation; and
g. a system for evaluating the Supervised Community Confinement Program’s effectiveness.
5. The Chief Administrative Officer, or designee, of each adult facility from which prisoners may be transferred to supervised community confinement shall maintain a process that allows a prisoner who meets the eligibility criteria to apply to participate in the Supervised Community Confinement Program.
6. The Commissioner, or designee, may approve a transfer of a prisoner located in a facility that is not a Maine Department of Corrections facility through any process that the Commissioner, or designee, determines appropriate and may exempt the prisoner from meeting the one hundred twenty (120) day eligibility requirement. All decisions made pursuant to this provision are at the complete discretion of the Commissioner, or designee, and may not be appealed.
7. The Regional Correctional Administrator, or designee, of each adult community corrections region shall be responsible for the day-to-day management of the Supervised Community Confinement Program and supervision of prisoners while on supervised community confinement.
8. Except as specified below, a prisoner who violates a curfew, residence, time or travel condition or fails to return from supervised community confinement to the facility when directed to do so is an escapee. The probation officer shall notify the Regional Correctional Administrator, or designee, who shall immediately notify the Department’s Fugitive Coordinator, or designee. The probation officer shall also refer this to the appropriate criminal justice agencies for arrest and prosecution for the crime of escape, and if applicable, for a revocation of probation or supervised release for sex offenders.
9. If a prisoner becomes ill or injured or another unforeseen emergency prevents the prisoner from abiding by a curfew, residence, time or travel condition, or returning to the facility when directed to do so, the prisoner shall notify the probation officer as soon as possible for instructions.

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Procedure B: Eligibility Requirements

1. A prisoner may not be transferred to supervised community confinement unless the prisoner has no more than eighteen (18) months remaining on the term of imprisonment, or, in the case of a split sentence, on the unsuspended portion, after consideration of any deductions that the prisoner has received and retained under Title 17-A, Section 1253.

2. If the Commissioner determines that the average statewide case load is no more than ninety (90) offenders to one probation officer, the Commissioner may allow a prisoner who meets all other eligibility requirements and who has no more than two (2) years remaining on the term of imprisonment, or, in the case of a split sentence, on the unsuspended portion, after consideration of any deductions that the prisoner has received and retained under Title 17-A, Section 1253, to be transferred to supervised community confinement.

3. Each prisoner’s case manager is responsible for checking CORIS periodically in order to be aware of when the prisoner is approaching eighteen months (or, if applicable, two years) prior to his or her earliest possible release date to review if the prisoner is eligible for supervised community confinement and, if so, meet with the prisoner to assist him or her with the application process.

4. If the term of imprisonment or, in the case of a split sentence, the unsuspended portion is more than five (5) years, a prisoner may not be transferred to the supervised community confinement program until the prisoner has served at least 2/3 of the term of imprisonment or, in the case of a split sentence, at least 2/3 of the unsuspended portion, after consideration of any deductions that the prisoner has received and retained under Title 17-A, Section 1253.

5. If the term of imprisonment or, in the case of a split sentence, the unsuspended portion is five (5) years or less, a prisoner may not be transferred to supervised community confinement until the prisoner has served at least 1/2 of the term of imprisonment imposed or, in the case of a split sentence, at least 1/2 of the unsuspended portion, after consideration of any deductions that the prisoner has received and retained under Title 17-A, Section 1253.

6. A prisoner who is serving consecutive sentences is not eligible until the prisoner has served 2/3 or 1/2, as applicable, of the time to be served on the combined sentences, after consideration of any deductions that the prisoner has received and retained under Title 17-A, Section 1253.

7. A prisoner may not be transferred to supervised community confinement unless the prisoner:
a. has served at least one hundred twenty (120) days of the term of imprisonment in a departmental facility;
b. is classified community custody; and
c. has no unresolved detainers, warrants, or other legal holds pending.

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8. In addition to the above eligibility requirements, any prisoner who has been convicted as an adult with any sex offense may not be transferred to supervised community confinement unless the prisoner is within six (6) months of his or her current custody release date, and, if male, has completed the intensive phase of a Department residential sex offender treatment program or, if female, the prisoner has successfully participated in a Department sex offender treatment program for at least one (1) year.
9. In addition to the above eligibility requirements, any prisoner who has been formally charged but not convicted as an adult with any sex offense may not be transferred to supervised community confinement unless the prisoner is within six (6) months of his or her current custody release date, and, if male, has completed the intensive phase of a Department residential sex offender treatment program or, if female, the prisoner has successfully participated in a Department sex offender treatment program for at least one (1) year. The Department’s Director of Classification may make an exception to the sex offender treatment program requirement and/or the requirement of being within six (6) months of current custody release date for a prisoner who has been formally charged but not convicted as an adult with a sex offense. If the prisoner has applied for supervised community confinement, the facility Chief Administrative Officer, or designee, shall make a recommendation to the Department’s Director of Classification regarding a possible exception to these requirements.
10. A prisoner must not have been found guilty of an A or B disciplinary violation within ninety (90) days, a C disciplinary violation within sixty (60) days, or a D disciplinary violation within thirty (30) days of the prisoner’s application to participate in the Supervised Community Confinement Program or anytime thereafter prior to the scheduled transfer to supervised community confinement and must not have a disciplinary matter pending at the time of application or scheduled transfer, unless an exception has been made by the Commissioner, or designee.
11. A prisoner who has lost the privilege to participate in any community based program as a result of an interim reclassification following a finding of guilt of a drug or alcohol violation shall not be eligible to apply for supervised community confinement for the time period specified at the reclassification, unless an exception has been made by the Commissioner, or designee.
12. No transfer to supervised community confinement may be granted if the prisoner is likely to have contact with a victim of the prisoner for domestic violence, unless a waiver has been granted by the Commissioner, or designee, for visits between them.
13. No transfer to supervised community confinement may be granted if the prisoner is likely to have contact with a victim of the prisoner for a sex offense or child abuse committed when the victim was a minor, unless a waiver has been granted by the Commissioner, or designee, for visits between them.

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Procedure C: Residence Requirements
1. The prisoner’s proposed residence while on supervised community confinement must be approved by the Regional Correctional Administrator, or designee.
2. If the residence is a home, it shall only be approved if any other adults living in the residence with the prisoner:
a. are aware of, and not opposed to, the prisoner's plan to participate in the Supervised Community Confinement Program;
b. agree that the home may be searched at any time; and
c. agree not to have firearms or other dangerous weapons, alcohol, illegal drugs or other illegal substances, or marijuana in the home.
3. Any other persons living in the residence:
a. must be at least eighteen (18) years old, unless an exception has been granted by the Regional Correctional Administrator, or designee;
b. may not be a departmental staff member, volunteer, or student intern;
c. may not be a person who is currently charged with murder or a Class A, B or C criminal offense;
d. may not be a person who is currently charged with a Class D or E criminal offense, unless an exception has been granted by the Regional Correctional Administrator, or designee;
e. may not be a former prisoner, unless an exception has been granted by the Chief Administrative Officer, or designee, and the Regional Correctional Administrator, or designee;
f. may not be a person under current supervision of the Department in the community, unless an exception has been granted by the Chief Administrative Officer, or designee, and the Regional Correctional Administrator, or designee;
g. may not be a victim of the prisoner for domestic violence, unless a waiver has been granted by the Commissioner, or designee, for visits between them; and
h. may not be a victim of the prisoner for a sex offense or child abuse committed when the victim was a minor, unless a waiver has been granted by the Commissioner, or designee, for visits between them.
Procedure D: Application and Approval Process
1. A prisoner may apply for transfer to supervised community confinement when the prisoner has served one hundred twenty (120) days in a Department facility, is no more than three (3) months from meeting the other time eligibility requirements set out in Procedure B, and is no more than minimum custody.

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2. A prisoner who wishes to apply for transfer to supervised community confinement must submit to the facility’s Community Programs Coordinator, or other designated staff, at least two (2) months in advance of his or her proposed date of transfer to supervised community confinement, the following:
a. Supervised Community Confinement Application (Attachment A);
b. Authorization for the Disclosure of Information for the Purpose of Investigation by the Department of Corrections (Attachment B); and
c. Authorization for Disclosure of Substance Abuse Information Acquired in Connection with the Provision of Substance Abuse Services by the Department of Corrections found in Department Policy (AF) 11.2, Confidentiality of Prisoner Information, (Attachment D).

3. If a prisoner is furlough eligible and a furlough investigation has been completed, the prisoner may be granted a furlough pass for the purpose of making tentative arrangements for housing, employment, education, or a treatment program for inclusion in the prisoner’s Supervised Community Confinement Application. If a prisoner is furlough eligible but has not yet had a furlough investigation completed, the prisoner may be transported by facility staff for the purpose of making tentative arrangements for housing, employment, education or a treatment program.

4. The facility’s Community Program Coordinator, or other designated staff, shall determine whether the supervised community confinement application has been submitted by the date required and the forms are complete. If not, any incomplete form shall be returned to the prisoner to submit the complete form in a timely manner.

5. The facility’s Community Program Coordinator, or other designated staff, shall determine whether other persons living in the proposed residence are prohibited from visits with the prisoner.

6. The facility’s Community Program Coordinator, or other designated staff, shall notify the facility classification staff of the application.

7. The facility’s classification staff shall review the prisoner’s administrative record to screen for eligibility and ensure an electronic records check is conducted for any outstanding detainers, warrants or other legal holds or requests for notification from a criminal justice agency. If there is a request for notification from a criminal justice agency, the facility classification staff shall notify the agency of the prisoner’s possible transfer to supervised community confinement. The result of the records check and any response to a notification shall be entered into CORIS.

8. The facility’s Community Program Coordinator, or other designated staff, shall determine if the prisoner is eligible for supervised community confinement, including that the prisoner will be time eligible as of the date of the proposed transfer to supervised community confinement date. If so, the facility’s

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Community Program Coordinator, or other designated staff, shall refer the application to the Unit Management Team for review.

9. If the prisoner is not already classified community custody, a Department approved classification instrument shall be completed by the Unit Management Team to ensure that the prisoner is eligible for community custody.

10. The prisoner’s Unit Management Team shall review the following in considering a prisoner for a transfer to supervised community confinement and an investigation and site review: a. prisoner’s institutional adjustment; b. prisoner’s compliance with his or her individualized case plan; c. criminal history; d. history of revocation while on supervision in the community or of violations of conditions of release (bail); e. any previous violation of a community transition program or of the supervised community confinement program; f. community risk assessment; g. safety of the public and the prisoner; h. behavior, conduct and social attitudes of the prisoner; i. prisoner’s work record; j. prisoner’s mental and emotional stability; k. suitability of the proposed residence; l. adequacy of the prisoner’s plan for work/education/treatment; and m. any other relevant factors.

11. If the Unit Management Team recommends that a prisoner be considered for transfer to supervised community confinement, then an investigation and site review shall be conducted. The facility’s Community Program Coordinator, or other designated staff, shall forward the Request for Investigation for Transfer of Prisoner to Supervised Community Confinement (Attachment C) to the appropriate Regional Correctional Administrator, or designee, and shall document the recommendation in CORIS, including any special conditions recommended by the team.

12. Upon receipt of the Request for Investigation for Transfer of Prisoner to Supervised Community Confinement and the completed supervised community confinement packet, the Regional Correctional Administrator, or designee, shall ensure the community investigation and site review is completed within thirty (30) days, to include, at a minimum, all the information contained in the Supervised Community Confinement Investigation Format (Attachment D) listed below:
a. review of the police report for the current crime(s);

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b. community sentiment investigation;
c. criminal background check of any other persons living in the proposed residence and of other persons with whom the prisoner is likely to have contact, if appropriate;
d. input from the primary law enforcement agency with jurisdiction over the place of residence;
e. necessary follow up to any victim impact statement;
f. the suitability of the proposed residence and other occupants (including, if applicable, a signed Agreement for Warrantless Searches, Attachment E), if any;
g. the employment, education or treatment program;
h. method of transportation;
i. interview with prisoner (in person or by phone);
j. need for additional conditions; and
k. recommendations.
13. At the time the supervised community confinement packet is forwarded for investigation and site review, the Community Program Coordinator, or other designated staff, shall notify the Department’s Director of Victim Services and the Department’s Director of Classification that there has been a request for investigation. The Department’s Director of Victim Services shall ensure that any victim of any crime for which the prisoner has served, is serving or will be serving a sentence during the present period of incarceration is notified of the application of the prisoner for supervised community confinement. The victim shall be given the opportunity to submit a victim impact statement, including any objections to the prisoner being placed on supervised community confinement. Information received from the victim shall be forwarded to the Regional Correctional Administrator, or designee, for inclusion in the materials to be reviewed.
14. The Community Program Coordinator, or other designated staff, shall ensure that the Notification of Consideration for Prisoner Transfer to Supervised Community Confinement (Attachment F) is provided to appropriate law enforcement officials, to include the prosecuting attorney and the district attorney for the district of the proposed residence. The written notification(s) shall request that any objections to the prisoner being placed on supervised community confinement be made to the Chief Administrative Officer, or designee, of the facility where the prisoner is located. Any objections shall be reviewed and copies forwarded to the appropriate Regional Correctional Administrator, or designee.
15. Once the investigation and the site review form is completed, the Regional Correctional Administrator, or designee, shall ensure the information is entered into CORIS. The Regional Correctional Administrator, or designee, shall make a recommendation on whether to grant or deny transfer to supervised community

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confinement and shall forward the recommendation to the Community Program Coordinator, or other designated staff.

16. In the case of a prisoner not recommended for transfer to supervised community confinement, the Regional Correctional Administrator, or designee, shall discuss the recommendation with the Chief Administrative Officer, or designee, prior to forwarding the recommendation.

17. If the Regional Correctional Administrator, or designee, does not recommend transfer to supervised community confinement, the Community Program Coordinator, or other designated staff shall notify the prisoner.

18. If the Regional Correctional Administrator, or designee, recommends transfer to supervised community confinement, and if the prisoner still remains eligible for transfer to supervised community confinement, the Community Program Coordinator, or other designated staff, shall meet with the prisoner to review the Supervised Community Confinement Agreement (Attachment G) and obtain the prisoner’s signature on both the original and a copy of the agreement and shall forward a copy of all completed documentation to the Chief Administrative Officer, or designee, for a decision.

19. If the decision of the Chief Administrative Officer, or designee, is to grant a transfer to supervised community confinement, the Chief Administrative Officer, or designee, shall document the approval on the application. All completed documentation shall be forwarded to the Department’s Director of Classification, or designee, for review and approval or disapproval of the decision.

20. Specific information about input from prosecutors, law enforcement, victims and victim services shall not be disclosed to the prisoner under any circumstances. A prisoner may be told in general that community sentiment was “negative.”

21. Approval for supervised community confinement shall be withdrawn for a prisoner who does not continue to meet all the eligibility criteria up to the time of departing the facility, unless an exception is made as set out in Procedure B. 10 or 11. If an exception is necessary in order for a prisoner to be transferred to supervised community confinement, the Chief Administrative Officer, or designee, shall contact the Commissioner, or designee, for a decision on the exception.

22. If a prisoner who has been approved for supervised community confinement is transferred to a less secure facility, the receiving facility may contact the Department’s Director of Classification for permission to withdraw the approval pending a review by the Unit Management Team of the prisoner’s adjustment to the receiving facility and any other pertinent factors. If permission is granted by the Director of Classification for a review by the Unit Management Team, the review shall take place within fourteen (14) days of the prisoner’s transfer unless the Director of Classification specifies another time. After the review, the Unit Management Team shall recommend to the Chief Administrative Officer, or designee, whether to grant or deny the transfer to supervised community confinement. If the decision of the Chief Administrative Officer, or designee, is to

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deny the transfer, all documentation supporting that decision shall be forwarded to the Department’s Director of Classification, or designee, for review and approval or disapproval of the decision.

23. If the prisoner is approved for transfer to supervised community confinement, the prisoner may be granted a furlough pass or furlough leave for the purpose of arranging housing, employment, education, or a treatment program in accordance with the approval. A furlough leave for the purpose of arranging employment, education, or a treatment program may be granted to the address approved for supervised community confinement, regardless of whether the prisoner has an approved furlough sponsor. The prisoner may receive furlough passes or furlough leaves as frequently as set forth in Department Policy (AF) 27.4, Furlough Pass/Furlough Leave Program.

24. If the prisoner is approved for transfer to supervised community confinement, and, if not already transferred to the supervised community confinement program, the prisoner may apply for participation in a community transition program (work release, education release, or public service release) when eligible and shall be given priority for placement in the program over prisoners who have not been approved for transfer to supervised community confinement.

25. Once a prisoner has been approved for supervised community confinement, the prisoner may not be transferred to a program that would delay the prisoner’s transfer to supervised community confinement, unless approved by the Commissioner.

26. Approval for transfer to supervised community confinement may be withdrawn at any time for any reason at the complete discretion of the Commissioner, or designee.

Procedure E: Documentation and Notification

1. If the transfer to supervised community confinement is denied or approval is withdrawn, the Community Programs Coordinator, or other designated staff, shall notify the prisoner and document the notification in CORIS.

2. If the transfer to supervised community confinement is approved by the Department’s Director of Classification, or designee, the Chief Administrative Officer, or designee, shall document the approval on the application. The Community Programs Coordinator, or other designated staff, shall make a copy of the Supervised Community Confinement Agreement (Attachment G) and forward both the original and a copy to the prisoner’s Unit Manager.

3. If there are any special conditions for transfer to supervised community confinement, they shall be specified in the Supervised Community Confinement Agreement.

4. At least fourteen (14) days before the prisoner’s transfer to supervised community confinement, the Community Programs Coordinator, or other designated staff,

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shall complete the Notification of Prisoner Transfer to Supervised Community Confinement, (Attachment H), and forward a copy of the notification to the Unit Manager, Central Control, facility classification staff, facility health care staff, the Department’s Director of Classification, the Department’s Director of Victim Services, the Regional Correctional Administrator, or designee, and the same criminal justice agencies that were initially notified of the application for transfer to supervised community confinement.
5. If a residential or transitional housing placement must be accepted sooner to prevent the bed space from being lost, and if, the Commissioner, or designee, after consultation with the Department’s Director of Victim Services, or designee, approves a waiver of the fourteen (14) day requirement, the Regional Correctional Administrator, or designee, and appropriate criminal justice agencies shall be notified as soon as possible verbally of the transfer. This notice shall include, but not be limited to, the name of the prisoner, the address of the placement, and special conditions or unusual situation(s), if any.
6. The Community Programs Coordinator, or other designated staff, shall ensure that facility health care staff is notified to determine whether the prisoner needs to be provided any medication upon transfer to supervised community confinement. If the prisoner does need to be provided medication, the health care staff shall provide the medication to the prisoner and shall provide instructions for the taking of the medication. The prisoner shall only be provided medication for fourteen (14) days, unless otherwise authorized by the Commissioner, or designee.
7. No earlier than the day prior to the prisoner transferring to supervised community confinement, the Community Programs Coordinator, or other designated staff, shall check to ensure that the prisoner continues to meet all the eligibility criteria and shall initial the agreement indicating that the check has been made.
8. If the prisoner remains eligible, the Community Programs Coordinator, or other designated staff, shall issue to the prisoner an official Supervised Community Confinement Identification card, which the prisoner shall sign. A copy of the signed card shall be forwarded to the Regional Correctional Administrator, or designee.
9. If approval of the transfer to supervised community confinement is withdrawn or the transfer is delayed, the Community Programs Coordinator, or other designated staff, shall notify the Department’s Director of Victims Services as soon as possible.
10. When the prisoner departs the facility for transfer to supervised community confinement, designated facility staff shall make an entry in CORIS to include the date and time of the prisoner’s departure.
11. Once the prisoner is transferred to supervised community confinement, the facility classification staff shall be responsible for performing sentence calculations as if the prisoner were still at the facility.

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12. A copy of every supervised community confinement application, whether or not processed, and the Supervised Community Confinement Agreement, if applicable, shall be maintained in the prisoner’s Case Management Record.
13. All decisions made with respect to a supervised community confinement application, whether or not processed, and all meetings with the prisoner required under this policy shall be documented in CORIS.
Procedure F: Mandatory Conditions
1. A prisoner approved for transfer to supervised community confinement is responsible for making arrangements for transportation to his or her community residence and any transportation necessary to meet the program’s conditions.
2. The prisoner shall report in person to his or her supervising probation officer within the first twenty-four (24) hours of his or her transfer to the supervised community confinement program.
3. The prisoner shall be employed, actively involved in seeking employment and employed within forty-five (45) days, receiving disability benefits adequate for support, or otherwise in a program of work and/or education that is approved by the Commissioner, or designee, together with any treatment program(s) the Commissioner, or designee, might require. The Commissioner, or designee, may waive the requirement of involvement in a program of work or education while a prisoner is involved in an approved full-time treatment program.
4. If applying for disability benefits that will be a sufficient means for support, the prisoner shall have, while waiting to receive those benefits, the resources to maintain an adequate means of support for at least one hundred twenty (120) days.
5. The prisoner shall agree to be placed on electronic monitoring at any time and shall also agree to be responsible for all or part of the costs associated with electronic monitoring, when and to the extent the Regional Correctional Administrator, or designee, determines that the prisoner has the financial resources.
6. The prisoner shall live in a residence approved by the Commissioner, or designee.
7. There shall be no firearms or other dangerous weapons, alcohol, illegal drugs or other illegal substances, or marijuana in the approved residence.
8. The prisoner shall remain at the prisoner's approved residence except for those occasions that have been approved by the probation officer.
9. The prisoner shall be subject to travel or movement restrictions, set by the probation officer, limiting the prisoner’s travel to times and places directly related

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to approved employment, education, treatment, or such other specific purposes as are approved in advance by the probation officer.
10. The prisoner shall not leave the State of Maine except for medical care outside the State of Maine if the Department’s Director of Medical Care determines the care is necessary and unavailable within the State of Maine.
11. The prisoner shall submit to searches of the prisoner’s person, residence, papers, effects, electronic data processing or data storage devices, including, but not limited to, computers, desktops, laptops, tablets, personal assistive devices (PDAs), or wearable devices, compact disks, and electronic communication devices, including, but not limited to, cell phones and pagers, at any time without a warrant and without probable cause, for items prohibited by law or by the conditions of supervised community confinement or otherwise subject to seizure, upon the request of the probation officer. The prisoner must provide the probation officer with all usernames and passwords/passcodes required to access the devices.
12. The probation officer may prohibit the prisoner from residing with anyone who does not consent to search of the residence to the extent necessary to search the prisoner’s person, residence, papers, effects, and electronic devices.
13. The prisoner shall not possess or use firearms or other dangerous weapons, alcohol, illegal drugs or other illegal substances, or marijuana.
14. The prisoner shall submit to urinalysis, breath testing, or other chemical tests at the direction of the probation officer.
15. The prisoner shall not be in the presence of firearms or other dangerous weapons, alcohol, illegal drugs or other illegal substances, or marijuana.
16. The prisoner shall carry the Department’s official Supervised Community Confinement Identification card at all times and show the card to any law enforcement officer that he or she comes in contact with. The prisoner shall notify the probation officer immediately of any such contact with any law enforcement officer.
17. The prisoner shall not violate any state or federal law or any other law.
18. When required by the Regional Correctional Administrator, or designee, and to the extent the Regional Correctional Administrator, or designee, determines that the prisoner has the financial resources, the prisoner shall pay all or part of the costs of the prisoner’s participation in the supervised community confinement program.
19. The prisoner shall pay court-ordered restitution through Adult Community Corrections on a schedule determined by the Commissioner, or designee.

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20. The prisoner shall sign a waiver of extradition to the State of Maine from any other jurisdiction to answer any charge of escape or any violation of supervised community confinement conditions.

21. The prisoner shall be responsible for his or her own personal expenses, including health care costs. The prisoner shall inform the probation officer of any major illness, injury, or medical condition and any changes in prescribed medications while participating in this program.

22. The prisoner shall obtain permission from the probation officer prior to allowing any visitors to his or her place of residence.

23. The prisoner shall sign any release of information forms determined necessary by the probation officer.

24. The prisoner shall not own or be in the possession of any type of vehicle without the permission of the probation officer and, if permission is granted, the vehicle shall be fully insured and registered through the State of Maine's Bureau of Motor Vehicles with a valid State Inspection Sticker. The prisoner shall submit to searches of the vehicle at any time, without a warrant and without probable cause, for items prohibited by law or by the conditions of supervised community confinement or otherwise subject to seizure, upon the request of the probation officer. In addition, the prisoner must possess a valid State of Maine driver's license and shall operate only the aforementioned vehicle to destinations and at times approved by the probation officer.

25. For a prisoner who has been sentenced to a split sentence, the prisoner shall comply with all court-ordered conditions of probation while participating in the supervised community confinement program regardless of whether the period of probation has commenced.

26. For a prisoner who has been sentenced to supervised release for sex offenders, the prisoner shall comply with all court-ordered conditions of supervised release while participating in the supervised community confinement program even though the period of supervised release has not commenced.

Procedure G: Additional Conditions

1. Additional conditions of supervised community confinement may be imposed on a prisoner at any time either prior to or after the transfer to supervised community confinement, and may include, but not necessarily be limited to:

a. any condition that may be imposed as a condition of probation pursuant to Title 17-A, Section 1204; and

b. any condition that would be appropriate for the prisoner and the supervised community confinement program. The conditions imposed may be as stringent or restrictive as, but not more stringent or restrictive than, those that may be constitutionally imposed if the prisoner were actually in a maximum security facility.

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2. After a prisoner is transferred to supervised community confinement, either the probation officer or the prisoner may initiate, in writing, a request for the addition, modification, or removal of a condition(s), other than mandatory conditions.
3. The probation officer may temporarily add, modify, or remove a condition except that the probation officer may not modify or remove a mandatory condition as set out in Procedure F. The probation officer shall notify both the prisoner and the Regional Correctional Administrator, or designee, in writing, of the addition, modification, or removal of a condition(s). The prisoner shall sign the Notice of Change(s) in Condition(s) of Supervised Community Confinement Form (Attachment I), acknowledging his or her understanding that he or she must abide by the change temporarily imposed by the probation officer and his or her right to appeal its imposition within five (5) working days. A prisoner wishing to appeal shall submit the appeal, in writing, to the probation officer, who shall forward it to the Regional Correctional Administrator, or designee. If the change is approved, the Regional Correctional Administrator, or designee, shall sign the Notice of Change(s) in Condition(s) of Supervised Community Confinement Form and shall forward it to the probation officer, who shall forward a copy to the prisoner.
4. A prisoner may request clarification, removal, or modification of a condition, by applying in writing, to the probation officer, who shall forward the request to the Regional Correctional Administrator, or designee, for review. If the change is approved, the Regional Correctional Administrator, or designee, shall sign the Notice of Change(s) in Condition(s) of Supervised Community Confinement Form and shall forward it to the probation officer, who shall forward a copy to the prisoner.
Procedure H: Supervision of Prisoners on Supervised Community Confinement
1. Within the next business day after transfer of a prisoner to the supervised community confinement program, the probation officer shall have one (1) face-toface contact with the prisoner.
2. Except as set out below, thereafter, the probation officer shall have no less than one (1) face-to-face contact with the prisoner on a weekly basis, with at least one (1) face-to-face contact required at the prisoner’s residence every month.
3. If approved by the Regional Correctional Administrator, or designee, the minimum requirement for face-to-face contacts may be reduced, but to no less than one (1) face-to-face contact per month, with at least one (1) face-to-face contact required at the prisoner’s residence every other month.
4. The probation officer shall also make at least one (1) collateral contact per month.

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5. Monitoring by a probation officer of a prisoner’s compliance with the conditions of supervised community confinement may include, but is not limited to, the following:
a. personal contact with the prisoner at the prisoner’s residence, place of employment, education, or treatment, or any other place;
b. direct inquiry of the prisoner’s employer, school, treatment program, or any other person or entity;
c. criminal, court, and law enforcement agency investigations; and
d. credit and other financial inquiries.
6. If the probation officer observes, receives a report of, or otherwise discovers that the prisoner may have violated any condition(s) of supervised community confinement, or is failing to adjust to the program, the probation officer, to the extent appropriate, shall use graduated sanctions which may include, but are not limited to, those sanctions outlined below:
Response Level I
• Verbal warning or counseling by probation officer or Regional Correctional Manager
• Written warning • Additional conditions • Increase in drug/alcohol testing • Community service work • Referral for substance abuse treatment • Referral for mental health counseling • Referral for other treatment services, including up to forty-five (45) days
residential placement, if eligible • Increase in level of supervision • Increase in reporting requirements
Response Level II
• Referral for intensive outpatient substance abuse treatment • Referral for residential substance abuse placement • Referral for mental health residential placement • Day Reporting
Response Level III
• Electronic monitoring • Confinement in a county jail for up to three (3) days, with the approval of
the Regional Correctional Administrator, or designee • Removal from supervised community confinement in accordance with
Procedure J

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Procedure I: Supervised Community Confinement for a Terminally Ill or Severely Incapacitated Prisoner
1. The Commissioner, or designee, may permit a prisoner committed to the Department to be transferred from a correctional facility to supervised community confinement without meeting the above eligibility requirements if the Department's Director of Medical Care has determined that the prisoner has a terminal or severely incapacitating medical condition and that care outside a correctional facility is medically appropriate.
a. The prisoner shall live in a hospital or other appropriate care facility, such as a nursing facility, residential care facility, or a facility that is a licensed hospice program pursuant to Title 22, Section 8622, approved by the Commissioner, or designee.
b. As approved by the Commissioner, or designee, the prisoner may receive hospice services from an entity licensed pursuant to Title 22, Chapter 1681, Subchapter I or other care services provided by an entity approved by the Commissioner, or designee, and subject to approval by the Commissioner, or designee, may live at home while receiving these services.
2. The Commissioner, or designee, may approve a transfer pursuant to this provision through any process that the Commissioner, or designee, determines appropriate and may exempt a prisoner transferred to supervised community confinement pursuant to this provision from any mandatory conditions under Procedure F that the Commissioner, or designee, determines to be inapplicable. All decisions made pursuant to this provision are at the complete discretion of the Commissioner, or designee, and these decisions may not be appealed.
3. The prisoner shall provide any information pertaining to the prisoner's medical condition or care that is requested by the Commissioner, or designee, at any time while the prisoner is on supervised community confinement. If the Commissioner, or designee, determines that the prisoner has failed to fully comply with a request or if at any time the Department's Director of Medical Care determines that the prisoner does not have a terminal or severely incapacitating medical condition or that care outside a correctional facility is not medically appropriate, the Commissioner, or designee, shall revoke the transfer to supervised community confinement. In addition, a prisoner transferred to supervised community confinement pursuant to this provision may be removed from supervised community confinement at any time for any reason at the complete discretion of the Commissioner, or designee, and this decision may not be appealed.
Procedure J: Removal from Supervised Community Confinement
1. A prisoner transferred to supervised community confinement shall be governed by the Supervised Community Confinement Agreement (Attachment G), including any special conditions.

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2. A prisoner’s failure to follow any condition of the Supervised Community Confinement Program may result in removal from the program. It may also result in disciplinary action, revocation of probation or supervised release for sex offenders, and/or criminal prosecution.
3. If a probation officer observes, receives a report of, or otherwise discovers that the prisoner may have violated any condition(s) of supervised community confinement, or has failed to adjust to the program, and determines that removal from supervised community confinement and return to a Department facility might be appropriate, he or she shall immediately notify the Regional Correctional Administrator, or designee. The Regional Correctional Administrator, or designee, shall notify the Commissioner, or designee, to determine whether to remove the prisoner from supervised community confinement and return the prisoner to a Department facility and whether to arrest the prisoner and have him or her held in a county jail pending return to a Department facility. If the probation officer believes it is necessary to arrest the prisoner, based on probable cause that the prisoner has violated a condition of supervised community confinement, prior to notifying the Regional Correctional Administrator, or designee, the probation officer may do so.
4. If the prisoner is to be returned to a Department facility, then the Regional Correctional Administrator, or designee, shall notify the Department’s Director of Classification, or designee. The Director of Classification, or designee, shall determine which Department facility the prisoner is to be returned to and notify that facility of the prisoner's name, status, location, and the name and telephone number of the probation officer. The receiving facility shall immediately contact the probation office providing him or her of the approximate time the facility’s transport officers will arrive at the location where the prisoner is being held.
5. The probation officer shall ensure that the prisoner's records, including medical history and any medications or accessories for medical needs such as braces, crutches, etc., are properly prepared and ready for pickup by the transport officers, if possible.
6. The probation officer shall complete a written report stating the reasons for return. If the reason for return was a violation of the program’s conditions, the probation officer shall forward the report to the facility Chief Administrative Officer, or designee, of the receiving facility, within two (2) working days of the prisoner’s return to the facility, with a copy to the Regional Correctional Administrator, or designee, and the Department’s Director of Classification. Facility staff receiving the report shall complete a disciplinary report to initiate the prisoner disciplinary process.
7. If a prisoner is returned to a Department facility, all applicable Department policies and procedures shall be followed, including disciplinary procedures and special management and other classification procedures.

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8. Regardless of whether a prisoner has failed to follow any condition of the Supervised Community Confinement Program, a prisoner may be removed from the supervised community confinement program at any time for any reason in the complete discretion of the Commissioner, or designee.

Procedure K: Appeals of Denial of Transfer to or Removal from the Supervised Community Confinement Program

1. A prisoner wishing to appeal denial of or withdrawal of approval for his or her transfer to the supervised community confinement program may submit the appeal to the Department’s Director of Classification within five (5) working days of receiving the decision. The Department’s Director of Classification is the final authority for this appeal (no further appeals are allowed).

2. A prisoner wishing to appeal his or her removal from the supervised community confinement program, may submit the appeal to the Department’s Director of Classification within five (5) working days of receiving the decision. The Department’s Director of Classification is the final authority for this appeal (no further appeals are allowed).

3. The Department’s Director of Classification shall make a decision on an appeal within thirty (30) days after receiving a timely prisoner appeal.

4. Upon review of the appeal, the Department’s Director of Classification may: a. approve the decision; b. reverse the decision; or c. modify the decision.

5. If the denial, withdrawal or removal was by the Commissioner, or designee (including a decision by the Department’s Director of Classification to not make an exception under Procedure B.9), the appeal shall be submitted by the prisoner to that person and shall be decided by that person as the final authority for the appeal.

6. A copy of the appeal and the decision on the appeal shall be placed in the prisoner’s Case Management Record.

PROFESSIONAL STANDARDS
ACA:

ACI 4-4443

Temporary release programs should include but not be limited to the following: • written operational procedures • careful screening and selection procedures • written rules of conduct and sanctions • a system of supervision to minimize inmate abuse of program privileges • a complete record keeping system • a system for evaluating program effectiveness • efforts to obtain community cooperation and support

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ACI 4-4444 Written policy, procedure, and practice include graduated release through a systematic decrease in supervision and corresponding increase in inmate responsibility as part of the classification program.
4-ACRS-5A-14 Each offender should be given gradual increased responsibility in the community prior to release, dependent upon his or her ability to accept responsibility.
4-ACRS-5A-15 A report is prepared at the termination of program participation that reviews the offender’s performance. A copy of the report is maintained in the offender’s case record. The report shall include, at a minimum:
• A summary of the offender’s program activities • Any unusual circumstances • Community resource references that affected the outcome of supervision • Objective assessment of the offender’s program participation
4-ACRS-5A-16 Offenders have opportunities for involvement with family and participation in community activities before the final release.

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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

JOSEPH A. DENBOW et al., Petitioners v.
MAINE DEPARTMENT OF CORRECTIONS et al.,
Respondents

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Case No. 1:20-cv-00175-JAW

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)

AFFIDAVIT OF DR. JOHN NEWBY, D.P.M., IN OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER
I, John Newby, D.P.M., declare as follows: 1. I am over the age of 18 years and not myself a party to this action. I understand and believe in the obligations of an oath. 2. I have personal knowledge of the facts stated in this affidavit and if called upon to testify, I would testify to those facts. In preparing this affidavit, I have also reviewed records regularly kept by Wellpath that are available to me and that I rely on in my official duties. 3. I am the Regional Vice President for Wellpath, a company contracted by the Maine Department of Corrections to provide medical care to inmates incarcerated in state correctional facilities, including the Mountain View Correctional Facility. 4. I have served as the Regional Vice President for Wellpath since 2012, and before that time I served in various other roles within Wellpath (formerly known as Correct Care Solutions) in Memphis, TN. I studied at Ohio College of Podiatric Medicine in Cleveland, Ohio,

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where I obtained Doctorate of Podiatric Medicine. I have worked in correctional medical facilities in leadership and professional oversight management since 2002.
5. Wellpath medical providers work in the state’s correctional facilities to provide healthcare services to inmates in the custody of the Maine Department of Corrections (“MDOC”). Because the healthcare setting refers to these individuals as patients, I use that term throughout this affidavit to refer to inmates in MDOC’s custody. Operational Preparedness:
6. For several months now, Wellpath has been working in conjunction with MDOC and the Maine Center for Disease Control and Prevention (“Maine CDC”) to prepare for and respond to COVID-19, a global pandemic caused by the novel coronavirus SARS-CoV-2.
7. Before the onset or first positive case of COVID-19 in the State of Maine, Wellpath and MDOC have worked together to develop an aggressive and targeted response to COVID-19, in an effort to mitigate the effects of the virus and reduce the risk of its transmission inside the state’s correctional facilities.
8. This response planning has been guided by recommendations from the Maine CDC and the U.S. Centers for Disease Control and Prevention (“U.S. CDC”), including the U.S. CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities. Our coordinated response continues to be revised and updated as additional information is learned about COVID-19 and new guidance is provided.
9. A multi-disciplinary pandemic preparedness committee (“PPC”) has been formed to address pandemic COVID-19 preparedness specifically, which includes Wellpath’s President, Chief Clinical Officer, Chief Compliance Officer, Chief Human Resource Officer, and Associate Chief Clinical Officer (an infectious disease expert), among others, who convened twice per day
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for several months to discuss the evolving clinical recommendations, as well as to prepare strategies to prevent challenges related to staffing and supplies.
10. To prepare for COVID-19, Wellpath providers and MDOC staff have been offered education, guidance, and support, including through weekly webinars, by Wellpath’s Chief Clinical Officer and infectious disease experts, and have received education and training updates by individual site Health Services Administrators regarding, among other things, how COVID-19 is transmitted, how to help prevent the spread of COVID-19, the symptoms of COVID-19, and how to respond if someone is experiencing symptoms. Medical providers have also received ongoing regularly occurring educational updates, tools, and guidance from the Chief Clinical Officer, Regional Medical Director, and Wellpath corporate operations and continue to receive training in the use of screening tools to detect, target, and isolate the disease to help prevent its spread; methods for collecting a specimen for testing purposes; and the management and care of patients suspected or confirmed to have the disease, among other things.
11. In further preparation, medical staff members have been cross-trained to other positions and critical functions to medical care have been identified. These measures are designed to ensure adequate staffing needs and operating capacity in the event of staffing shortages and include contingency plans. Personnel who are at increased risk for COVID-19 complications have been identified with precautions and accommodations made, and staff in the facilities have been informed and advised how to immediately report their own possible COVID-19 illness.
12. Additionally, Wellpath providers continue to monitor updated guidance from the CDC, Maine CDC, World Health Organization (“WHO”), and local public health partners.
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13. In addition to these measures, medical providers and MDOC staff have been fittested for N95 masks for respiratory protection in the event it is needed within the scope of their responsibilities.
14. MDOC and Wellpath have worked together to inventory and stock recommended hygiene supplies, cleaning supplies, personal protective equipment (“PPE”), and medical supplies, to ensure that those supplies are on hand and available. Wellpath has a sufficient supply of PPE to meet the anticipated needs of all MDOC facilities.
15. Further, a plan has been developed to rapidly restock PPE under crisis conditions. This has also involved making contingency plans in the event of PPE shortages during the COVID19 pandemic, monitoring supply chains for potential disruption or impact, and following CDC guidance on optimizing PPE supplies.
16. To prepare for COVID-19, Wellpath and MDOC have worked to identify and develop plans for the movement, housing, and care of infected and non-infected individuals. These plans include preparing separate intake and housing areas for suspected and ill patients, including a quarantine unit and a medical isolation area at each facility. Prevention:
17. Wellpath and MDOC have developed and implemented measures to prevent the introduction of COVID-19 from the community into the correctional facilities and to reduce its transmission inside a facility by reinforcing good hygiene practices among patients, staff, and visitors, intensifying cleaning and disinfecting practices, and implementing social distancing strategies.
18. All persons in the facility, including staff and patients, are encouraged and instructed to practice good hand hygiene and cough etiquette; to avoid touching their eyes, nose,
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or mouth without cleaning their hands first; to avoid sharing eating utensils, dishes, and cups; and to avoid all non-essential physical contact.
19. Similarly, educational information has been provided to patients regarding how COVID-19 is transmitted, how to help prevent its spread (including hygiene and cough etiquette instructions), the symptoms of the disease, and what to do if a person is experiencing any symptoms of COVID-19. This has included signage in each of the facilities that is understandable for non-English speaking persons and those with low literacy, and necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
20. In addition, social distancing has been taught, encouraged, and practiced among staff and patients in the facilities, to the maximum extent possible.
21. Other measures in place include ensuring that all patients have access to soap and water to allow for frequent hand washing, as well as alcohol-based hand sanitizer that contains alcohol levels recommended by the CDC.
22. There have also been operational changes in the way in which healthcare services are delivered and provided to patients in the state’s correctional facilities.
23. First, the procedures and practices relating to the administration and delivery of medication have been altered to better protect our medical providers and patients. This includes eliminating administration and delivery methods that involve patients congregating in waiting areas or closely together in large lines, and instead delivering medication to fewer patients at one time more locally in the housing units. Specifically, social distancing practices are followed where medication is administered and delivered to patients. There are still medication lines in some facilities with MDOC staff present who instruct patients on proper distancing while waiting in line.
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24. Further, the use of “Keep on Person” or “KOP” medication protocols have been reviewed and maximized to allow additional patients to be provided with and store their medications for self-administration in accordance with medical instructions and when appropriate, patients are provided with more doses of medication to last for a longer time period.
25. In addition, all patients and staff have been offered the seasonal influenza vaccine, as preventing influenza cases may help to speed the detection of COVID-19 cases and reduce pressure on healthcare resources in the facilities.
26. In addition to caring for patients suspected or confirmed as being infected by COVID-19, Wellpath providers utilize standard precautions in caring for all patients, and these precautions assume that every person is potentially infected or colonized with a pathogen that could be transmitted in the healthcare setting.
27. Providers practice hand hygiene recommended by the CDC before and after all patient contact, contact with potentially infectious material, and before putting on and after removing PPE.
28. During an examination, depending on the level of care and nature of the visit, healthcare providers are ensuring the use of appropriate PPE for both the medical provider and the patient. This includes the use of masks, face shields and gloves by providers when examining patients, and the use of masks by patients during the examination.
29. Additionally, education and communication with patients concerning COVID-19 has continued during medical visits, including discussions about changes to their daily routine and how they can contribute to risk reduction.
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30. In order to encourage patients to voluntarily seek treatment of potential COVIDrelated symptoms, medical co-pays have been waived for patients seeking medical evaluation for respiratory symptoms and for those feeling sick and needing medical attention.
31. Between patient visits or examinations, medical equipment and surface areas are cleaned and disinfected to ensure the safety of patients and staff. Staff are also following guidelines recommended by the CDC for donning and doffing of PPE to ensure proper disposal and infection control procedures to reduce risk of transmission.
32. Further, where possible in some medical clinic areas of the facilities we are scheduling and performing limited telehealth visit with patients. Telehealth visits permit the providers to interact with the patients in real-time and provide medical orders. Currently we perform telehealth visits for both medical and psychiatric providers.
33. A patient seeking medical care or other healthcare services may submit a “Sick Call Slip,” which is screened by medical nursing staff for initial response in addressing needs or based on medical concern submitted to Wellpath providers for review and response. In conjunction with MDOC, many patients are now able to use their tablets to request mental health services without the exchange of paper slips.
34. Patients needing chronic care examination visits are continuing to receive them, with additional precautions being taken in the clinic areas. Such precautions include the use of appropriate PPE being worn and limiting physical examinations generally to focus on reported symptoms and chronic care concerns.
35. Necessary medical care, including dialysis and chemotherapy, for patients has also continued, including any necessary off-site transport for medical care with appropriate infection
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control procedures and screening protocols in place before and after transport and upon return to the facility.
36. For any new patients or admissions into MDOC’s custody (before they were stopped in early April 2020), new intake procedures were implemented in response to COVID-19, including screening measures and temperature checks. Further, any new intakes or admissions to a state correctional facility are placed in a quarantine unit for fourteen days (separate from other individuals who are quarantined) and monitored medically before entry into a housing unit with other individuals. If the individual has or develops symptoms of COVID-19, the individual is placed in medical isolation with continued monitoring by medical staff and testing for COVID-19. Providers continue to provide care for and treat the individual unless the individual requires a hospital level of care, in which case the individual will be transported to the hospital, as explained further below.
37. Any person seeking to physically enter a state correctional facility, including MDOC staff, medical staff, and any allowed visitors, must comply with and pass enhanced screening protocols and temperature checks.
38. All non-essential travel between correctional facilities by providers has been limited.
39. Each correctional facility has developed and implemented a quarantine unit and a separate isolation unit, as described further below. In addition, at the state’s largest correctional facility, the Maine State Prison, a second infirmary has been developed and implemented in the quarantine unit that is staffed with twenty-four-hour nursing coverage when there are patients admitted to this area. Currently we do not have any patients admitted.
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40. Wellpath and MDOC have also worked to ensure that the local hospitals in the community of each of the correctional facilities have been contacted to establish an appropriate response plan in the event a patient at a correctional facility were to need a hospital level of care.
41. In terms of any patients needing emergency care, patients continue to be transported to community hospitals for that care. Before and after transport, and upon return to the facility, infection control procedures, including the donning of appropriate PPE and disinfection of all affected areas, are observed. Upon return to the facility from the hospital, the patient is placed in a quarantine unit for 14 days, with daily temperature checks and nursing visits. If a patient in such a position were to develop any signs or symptoms of COVID-19, the patient would be tested for COVID-19.
Management Measures: 42. All patients that present to a Wellpath provider with COVID-19 symptoms are
tested for COVID-19. 43. When there is a suspected COVID-19 case inside an MDOC facility, that individual
is placed under medical isolation, his or her close contacts are quarantined, and the individual is monitored and treated under the direction of our medical providers.
44. A patient under medical isolation is housed separately with his or her own bathroom, in a single cell with solid walls (not bars) and a solid door that closes fully, as recommended by the U.S. CDC. The individual’s movements are restricted to the medical isolation space, and he or she is provided with clean masks as needed. Medical care is provided inside the medical isolation space, as are meals.
45. All patients who are close contacts of a confirmed or suspected COVID-19 case are placed under quarantine for fourteen days. Similarly, patients under quarantine are placed
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separately in a single cell with solid walls (not bars) and solid doors that close fully, with access to their own bathroom. Their movement is restricted to the quarantine space and meals are provided inside that space. Medical care, if needed, is provided in that area, and if the individual develops any symptoms, they are tested for COVID-19.
46. To date, there have been no severe cases of COVID-19 in MDOC facilities. Should a patient present with a severe case of COVID-19, the patient will be transported to the nearest local hospital emergency department for treatment. The process would include us contacting the hospital first to inform them that we are requesting transport.
47. As of the date of this affidavit, there are four positive COVID-19 cases in the state’s correctional system, all isolated at the Maine Correctional Center (“MCC”) in Windham, Maine. These individuals while in isolation are being monitored daily with vital signs being taken three times per day.
48. On May 17, 2020, a male patient in his 20s at MCC began showing symptoms of COVID-19 and he was promptly moved to medical isolation. Medical personnel monitored and treated this patient, in addition to monitoring that patient’s housing unit (close contacts). He was immediately tested for COVID-19, and his result returned as positive on May 19, 2020. He has not required a hospital level of care, and providers are managing and treating his symptoms.
49. On May 22, 2020, a second patient at MCC tested positive for COVID-19. This patient was immediately moved to a medical isolation unit, he was tested as part of the MCC-wide testing plan, and he has not required hospitalization.
50. On May 23, 2020, two additional patients at MCC tested positive for COVID-19. These patients were tested as part of the universal testing campaign at MCC, following the first positive test there. Both patients were immediately moved to a medical isolation unit.
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51. MDOC and Wellpath continue to monitor for COVID-19 at MCC and the state’s correctional facilities.
52. All patients being released from incarceration into the community are screened for COVID-19 symptoms. Wellpath and MDOC have developed a plan for discharging released inmates with known or suspected COVID-19, including communication with community resources and local public health officials.
53. Due in large part to MDOC, Maine CDC and Wellpath’s response planning and overall preparedness to COVID-19, providers in the state facilities continue to have sufficient personal protective equipment to continue providing medical care safely to patients at the facilities.
54. In summary, Wellpath and MDOC continue to develop and implement a collaborative and aggressive response to COVID-19, rooted in medically-based evidence and recommendations provided by the Maine and U.S. CDC, to target, isolate, and mitigate the effects of COVID-19, in order to protect the health and safety of all patients and staff in the state’s correctional facilities.
I declare under penalty of perjury that the foregoing is true and correct. Signed under the penalties of perjury, this 27th day of May, 2020.
/s/ John Newby John Newby, DPM
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,
Petitioners,

Case No. 20-cv-00175-JAW

v.

REPLY IN SUPPORT OF TEMPORARY

RESTRAINING ORDER

MAINE DEPARTMENT OF CORRECTIONS, et al.,
Respondents.

The opposition filed by Respondents, Maine Department of Corrections (DOC) and Commissioner Randall Liberty, is most notable for what it does not say. Respondents do not contest that physical distancing is essential for preventing the spread of COVID-19. See Decl. of Dr. Nirav Shah ¶¶ 18-20, 31, Cavalry Chapel of Bangor v. Mills, Docket No. 20-cv-156-NT, ECF No. 20 (May 8, 2020). Respondents also do not dispute that absent a vaccine or effective treatment for COVID-19, prevention through physical distancing is necessary to protect medically vulnerable individuals from the risk of permanent harm or death. Goldenson Decl. ¶¶ 43-44; Parrish Decl. ¶ 35. Nor do Respondents dispute that it is impossible to abide by the U.S. Centers for Disease Control and Prevention’s (CDC) physical distancing guidelines in DOC facilities. See, e.g., Thornell Decl. at ¶¶ 33, 48. Finally, Respondents do not dispute that, despite having the authority to grant medical furlough, they have categorically refused to use that authority to enable medically vulnerable prisoners to physically distance during the pandemic. See Resp. at 7, ECF No. 19; Sideris Decl. Att. B at 5, ECF No. 1-8.
In short, “by failing to make meaningful use of [release] authority, [DOC] has failed to implement what appears to be the sole measure capable of adequately protecting vulnerable

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inmates . . . in favor of measures that, even if they were fully and painstakingly implemented, would still leave vulnerable inmates subject to a grave risk to their health.” See Martinez-Brooks v. Easter, No. 3:20-cv-00569, 2020 WL 2405350, at *23 (D. Conn. May 12, 2020). And unsurprisingly, many of DOC’s claimed precautions—including the use of face shields and other protective equipment by medical staff; the widespread wearing of masks by prisoners and staff; the provision of alcohol-based hand sanitizer; and improved hygiene measures—are unavailable in practice. See generally Gross Decl. ¶¶ 13-16, Sukeforth Decl. ¶¶ 5-10; Supp. Ragsdale Decl. ¶¶ 2-5; Supp. Denbow Decl. ¶¶ 2-4; Gray Decl. ¶¶ 9-18. This leaves medically vulnerable prisoners in crowded and unhygienic settings where the spread of COVID-19 is all but assured. Emergency relief is required.
“The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom,” especially during unprecedented emergencies like the COVID-19 pandemic. See Harris v. Nelson, 394 U.S. 286, 290–91 (1969). “And the habeas court must have the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy[.]” Boumediene v. Bush, 553 U.S. 723, 779–80 (2008). The remedy Petitioners seek is narrowly tailored to address the irreparable harm they will suffer absent injunctive relief, including:
(1) an order prohibiting DOC from continuing to deny “access to medical furlough during the pandemic,” see Petition at 49, (2) an order requiring testing in all DOC facilities, including testing of asymptomatic individuals, to detect an outbreak before it is too late, see Supplemental Parrish Decl. ¶¶ 3, 15, and (3) an order ensuring Petitioners have access to information within Respondents’ control—including access to prisoners and the names of Class and Subclass Members, see Mot. 1-2; Bond Decl. ¶ 3-7. I. Putative Class Members Face Irreparable Harm Absent Immediate Relief Respondents do not dispute that serious illness or death from COVID-19 would constitute
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irreparable harm, but quibble that such an outcome is only “possible” as opposed to “likely” for medically vulnerable Class Members. See Resp. at 17-19. This Court has recognized that even a relatively low risk of death may qualify as “irreparable,” given that “practitioners consider even a very low absolute risk of death to be medically unacceptable.” Smith v. Aroostook Cty., 376 F. Supp. 3d 146, 162 & n.23 (D. Me.), aff’d, 922 F.3d 41 (1st Cir. 2019). Respondents make much of the fact that there are no confirmed positive cases in the Mountain View Correctional Facility, where the named Petitioners are housed, but that is unsurprising given that only two prisoners there have been tested to date. See Daily COVID-19 Dashboard, Me. Dep’t of Corrections (May 28, 2020), https://bit.ly/2Af3CKu. II. Petitioners Are Likely To Succeed on the Merits Under the Eighth Amendment
On the merits, this case is on all fours with other examples in which courts have ordered emergency injunctive relief to require release from prison in “meaningful numbers” during the COVID-19 pandemic. See, e.g., Martinez-Brooks v. Easter, No. 3:20-CV-00569 (MPS), 2020 WL 2405350, at *22 (D. Conn. May 12, 2020); see also Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882, at *10-11 (N.D. Ohio Apr. 22, 2020); Cameron v. Bouchard, No. CV 2010949, 2020 WL 2569868, at *29 (E.D. Mich. May 21, 2020). Respondents insist that they are not deliberately indifferent under the Eighth Amendment because they have undertaken numerous precautionary measures short of release. See Resp. at 11-14. Yet many of these precautions are unavailable in practice, supra p. 2, and, in any event, providing only “some treatment” is no defense when the “serious need for greater or more immediate medical attention” was obvious and nonetheless refused by the prison. Perry v. Roy, 782 F.3d 73, 77, 81 (1st Cir. 2015).
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In this case, DOC’s “knowledge of the need for medical care” (namely, physical distancing) is accompanied by the “intentional refusal to provide that care,” and, as such, “the deliberate indifference standard has been met.” Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 499 (1st Cir. 2011) (citation omitted). DOC acknowledges that physical distancing is often impossible in its facilities, including inside “an inmate’s individual cell / living area,” Thornell Decl. at ¶¶ 22, 33, 42-43, 48, which could include from 50 to 120 other inmates, see, e.g., Ragsdale Decl. ¶ 13 (50 people); Gray Decl. ¶ 10 (80 people), Gross Decl. ¶ 15 (120 people), Dale Decl. ¶ 6 (90 people). DOC also knows that almost half of its population has at least one of the medical vulnerabilities that place them at serious risk of permanent illness or death from COVID-19. See Thornell Decl. ¶¶ 11, 62. Finally, Respondents have been on notice for months that meaningful release through medical furlough and home confinement is the only way to enable physical distancing and to thin the prison population to enable physical distancing for those who remain inside. See Thornell Decl. at ¶¶ 62, 69 (describing early meetings with the ACLU of Maine on this topic). Yet as in Wilson, Martinez-Brooks, and Cameron, supra p.3, DOC has refused to meaningfully exercise its release authority and instead has pursued an approach that is incomplete in inception and flawed in execution. See supra p. 2.
Respondents next argue that they have provided meaningful release, claiming that in contrast to another prison’s “slow and inflexible” release of 21 out of nearly 1,000 inmates (2.1%), DOC has released 95 out of nearly 2,000 prisoners (4.7%).1 Resp. at 13 (citing MartinezBrooks, 2020 WL 2405350). Constitutional rules do not rest on such fine distinctions. As in Martinez-Brooks, physical distancing remains impossible in DOC facilities.
1 As of May 28, there were only 66 prisoners on home confinement, forming 3.5% of the total population. See DOC Daily Dashboard (May 28, 2020), https://bit.ly/2Af3CKu. DOC has never identified how many (if any) of these individuals are medically vulnerable to COVID-19.
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Finally, Respondents blame their slow and inflexible release on the statutory limitations of home confinement. See Resp. at 13-14 (stating “MDOC can only place inmates in SCCP if they meet the statutory eligibility requirements”). This excuse holds no water. DOC also has authority to grant furlough “when medical treatment . . . is necessary and cannot be done within MDOC,” Resp. at 7, yet DOC has categorically refused to use this authority during the pandemic. See Sideris Decl. Att. B ; Denbow Decl. ¶ 13. In their response, Respondents double down on their refusal to provide medical furlough to a prisoner with hypertension “simply because of the risk of COVID-19.” Resp. at 7; Thornell Decl. at ¶ 70. Yet when faced with a disease with no effective curative treatment that kills nearly 1 in 10 (8.4 %) people with hypertension, Parrish Decl. ¶¶ 7-9, that is exactly what DOC must do.2 III. Petitioners Are Likely to Succeed on the Merits under the Americans with
Disabilities Act Petitioners in the Disabilities Subclass are also likely to succeed in showing that DOC has refused reasonable accommodation—namely, physical distancing—for federally protected disabilities. See Mot. at 16-20. In the two sentences Respondents devote to Petitioners’ reasonable accommodation argument, they criticize Petitioners for demanding release “regardless of eligibility” for home confinement or medical furlough. Resp. at 14-15. This is a red herring. Members of the Disabilities Subclass are eligible for lifesaving medical care (physical distancing) available through medical furlough, absent a specific reason that such an accommodation would not be safe for a specific individual. See 34-A M.R.S. § 3035(2)(C)
2 Respondents’ claim that medical furlough is “unmonitored” is confusing, Resp. at 19, because prisoners on medical furlough remain subject to DOC custody and supervision. Cf. Martinez-Brooks v. Easter, 2020 WL 2405350, at *14 (describing that federal prisoners on home confinement remain under BOP custody). Notably, mandating the general availability of medical furlough would not prevent DOC from weighing specific safety concerns for a particular person.
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(granting broad authority for medical furlough). Similarly, the named Petitioners and many members of the proposed class meet the essential statutory criteria for home confinement. See 34-A M.R.S. § 3036-A. Furthermore, the ADA prohibits public entities like DOC from adopting policies that “have the effect” of discriminating against qualified individuals with disabilities. 28 C.F.R. § 35.130(b)(3)(I). Accordingly, to the extent DOC has adopted policies narrowing eligibility for medical furlough or home confinement or refusing accommodations to ensure those programs are available for prisoners with disabilities, such policies violate the ADA. See id.; Nunes v. Mass. Dep’t of Corr., 766 F.3d 136, 145 (1st Cir. 2014).
Finally, Respondents maintain that they considered medically vulnerable prisoners for home confinement, thus foreclosing any claim of disability discrimination. Resp. at 13. But this turns the ADA on its head. By funneling all release claims through the home confinement process (which often requires a job in the community at which physical distancing would be impossible), see, e.g., Denbow Decl. at ¶ 13, and denying access to medical furlough, DOC discriminates against members of the Disabilities Subclass. Such disparate treatment is exactly the type of discrimination against prisoners with disabilities that the ADA is designed to prevent. IV. The Remaining Equitable Factors Support Granting the Requested Relief
The equities strongly support the narrowly tailored relief requested by Petitioners. See Mot. at 20. Respondents claim that it would be against the public interest to grant prisoners “indiscriminat[e] releas[e]” into the community, without any monitoring by DOC. Resp. at 19. But this grossly mischaracterizes Petitioners request to protect medically vulnerable prisoners using tools within existing DOC authority—and with prisoners remaining subject to DOC oversight and control—akin to the approaches in Wilson, Martinez-Brooks, and Cameron, supra p. 3. Such relief, alongside the testing and information-sharing protections requested by Petitioners, is necessary to protect their constitutional rights, and also to lessen the spread of
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COVID-19 among prisoners, staff, and the broader community. See Mot. at 20. As the United Nations recently urged, release of medically vulnerable prisoners in the United States is necessary “to prevent large outbreaks of COVID-19,” and “failure to take timely action may have far-reaching consequences.” Ex. A (available at https://bit.ly/2XHpXIr). V. There Are No Procedural Barriers to Granting Relief
Respondents have not rebutted Petitioners’ showing that it would be futile to exhaust state court procedures in seeking emergency relief for members of the proposed class. See Mot. at 10-11. Respondents claim that Mr. Denbow’s case in state court illustrates the availability of state court procedures. Resp. at 17. Quite the opposite. Despite the best efforts of court personnel, Mr. Denbow received no response to his emergency state court filings for five weeks. See Docket, ECF No. 13-2 (May 20, 2020). To this day, Mr. Denbow has received no ruling on an emergency motion for bail and emergency motion for hearing on bail. See id.; Appendix at 19-24, 33-37, ECF No. 1-2 (May 15, 2020). During this difficult time, the state courts lack the resources “to timely respond to a massive volume of emergency habeas petitions”—from the approximately 900 members of the proposed class —“in the urgent manner that those petitions require.” McPherson v. Lamont, No. 3:20CV534. 2020 WL 2198279, at *7 (D. Conn. May 6, 2020). Nor is there any class mechanism in state court to streamline proceedings. In such cases, the state remedy would be futile and Petitioners are likely to suffer irreparable injury without immediate judicial relief.
CONCLUSION Pursuant to the Court’s broad equitable powers and authority in habeas cases to provide relief “as law and justice require,” 28 U.S.C. § 2243, Petitioners respectfully request that the Court grant a temporary restraining order to protect them during further development of the case.
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Dated May 29, 2020

Respectfully Submitted,
/s/ Emma E. Bond Emma E. Bond Zachary L. Heiden American Civil Liberties Union of Maine Foundation P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 ebond@aclumaine.org (207) 619-6224 heiden@aclumaine.org
Moe Keshavarzi* Robert Sturgeon* Alex Kuljis* Sheppard Mullin Richter & Hampton LLP 333 South Hope Street, 43rd Floor Los Angeles, CA 90071-1422 213.617.5544 MKeshavarzi@sheppardmullin.com 213-617-5435 RSturgeon@sheppardmullin.com 213-617-4239 AKuljis@sheppardmullin.com
Jodi Nofsinger Miriam Johnson Taylor Asen Berman and Simmons 129 Lisbon Street Lewiston, Maine 04240 jnofsinger@bermansimmons.com (207) 784-7699 mjohnson@bermansimmons.com (207) 784-3576 tasen@bermansimmons.com
Attorneys for Petitioners and Proposed Class
* admitted pro hac vice

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CERTIFICATE OF SERVICE The undersigned certifies that she has electronically filed this date the foregoing REPLY IN SUPPORT OF TEMPORARY RESTRAINING ORDER with the Clerk of the Court using the CM/ECF system. This filing is available for viewing and downloading from the ECF system.

Dated: May 29, 2020

/s/ Emma E. Bond Emma E. Bond American Civil Liberties Union of Maine Foundation P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 ebond@aclumaine.org
Counsel for Petitioners

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US Government urged to do more to prevent major outbreaks of COVID-19 in detention centres – UN experts

GENEVA (29 May 2020) – UN human rights experts* today urged the United States Government to reduce the population in places of detention to prevent large outbreaks of COVID-19 and ease the mounting pressure on staff and the penitentiary system as a whole.

“We call on the United States Government to act now. Failure to take timely action may have farreaching consequences,” they said.

“People in detention throughout the US are particularly vulnerable to COVID-19 and for many, their pre-existing medical conditions increase the risk of death,” the experts noted. “In these closed, and often overcrowded places, basic protective measures, such as physical distancing and hygiene rules, cannot be observed.

“Those at greatest risk should immediately be identified, taking into account situations of vulnerability, and release measures should be implemented,” the experts said. “Despite some steps at the federal and state levels to reduce the population of people in custody, the Government’s response has been insufficient.

“Minorities, including African-Americans, are disproportionately represented, both among the prison population and among those succumbing to COVID-19. Thus, any failure to effectively mitigate the resulting risk is also an issue of racial discrimination and racial justice of paramount importance,” the independent experts warned.

They called on the authorities to factor in that people belonging to minority groups, lesbian, gay, bisexual, trans- and gender-diverse people, and people with disabilities are all more likely to experience COVID-19 related complications, due to underlying health conditions or inadequate access to appropriate routine medical care, which increases the risks in case of infection. The risks and needs of older persons (the fastest growing demographic group in prison) and pregnant women should also be given due consideration.

According to international standards, States should ensure that people in detention have access to the same standard of health care as is available in the community, and that this applies to everyone regardless of citizenship, nationality or migration status.

“The authorities must urgently use readily available alternatives to detention for migrants held in overcrowded and unsanitary administrative centres to counter the risk of a COVID-19 outbreak,” the experts added, urging the US Government to suspend immigration raids, deportations, expulsions or other forms of forced returns.

They reminded the authorities that the pandemic and the declaration of health emergency at federal,

https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25912&LangID=E

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state or city level does not mean that human rights can be suspended. “The right to life, the right to health, the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, as well as the procedural guarantees protecting the liberty and dignity of the person, can never be derogated from.”
NOTE TO EDITORS: Relevant approaches and recommendations in relation to COVID-19 exposurerelated risks in prisons have been formulated by the UN Inter-Agency Standing Committee; the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the UN High Commissioner for Human Rights, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions and on the independence of judges and lawyers; the UNODC; and the OHCHR, WHO, UNODC and UNAIDS
ENDS
* The experts: Ms. Agnès Callamard, Special Rapporteur on extrajudicial, summary or arbitrary executions; Mr. Nils Melzer, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; Mr. Ahmed Reid (Chair), Ms. Dominique Day, Mr. Michal Balcerzak, Mr. Ricardo A. Sunga III, and Mr. Sabelo Gumedze, Working Group of experts on people of African descent; Mr. Dainius Pūras, Special Rapporteur on the right to physical and mental health; Mr. Fernand de Varennes, Special Rapporteur on minority issues; Ms. E. Tendayi Achiume, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; Mr. Víctor Madrigal-Borloz, Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity; Ms. Claudia Mahler, Independent Expert on the enjoyment of all human rights by older persons; Mr. Diego García-Sayán, Special Rapporteur on the Independence of Judges and Lawyers; Mr. Felipe González Morales, Special Rapporteur on the human rights of migrants; Ms. Catalina Devandas-Aguilar, Special Rapporteur on the rights of persons with disabilities.
The Special Rapporteurs, Independent Experts and Working Groups are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.
UN Human Rights, country page – United States of America
For more information and media requests, please contact Alessandro Marra (+41 22 928 93 21 / amarra@ohchr.org) or write to eje@ohchr.org
For media inquiries related to other UN independent experts, contact Renato de Souza (+41 22 928 9855 / rrosariodesouza@ohchr.org) and John Newland (mediaconsultant2@ohchr.org)
Follow news related to the UN’s independent human rights experts on Twitter: @UN_SPExperts.
Concerned about the world we live in? Then STAND UP for someone’s rights today.
#Standup4humanrights and visit the web page at http://www.standup4humanrights.org

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Case 1:20-cv-00175-JAW Document 22-2 Filed 05/29/20 Page 1 of 8 PageID #: 515

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,

Petitioners, v.

Case No. 20-cv-00175-JAW

RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity, MAINE DEPARTMENT OF CORRECTIONS,

Respondents

SUPPLEMENTAL DECLARATION OF ROY GIBSON PARRISH, MD I, Roy Gibson Parrish, declare as follows:
1. This declaration is to supplement my previous declaration dated May 14, 2020. 2. The United States has had more than 1.6 million cases and 100,000 deaths from COVID-
19,1 and Maine had 2,189 cases and 84 deaths as of May 28, 2020.2 3. I understand that there have been four positive tests of prisoners in the Maine
Correctional Center (MCC) in Windham, one of the Maine Department of Corrections (MDOC) facilities. Three of the prisoners testing positive were asymptomatic. Given these positive cases in the MCC in spite of the efforts that MDOC has made to limit

1 COVID-19 Dashboard by the Center for Systems Science and Engineering, Johns Hopkins University, https://coronavirus.jhu.edu/map.html; CDC Coronavirus Disease (COVID-19) Cases in the U.S.: https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html, last updated May 28, 2020.
2 Maine Division of Disease Surveillance, Novel Coronavirus 2019 (COVID-19): https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus.shtml#situation, last updated May 28, 2020.
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Case 1:20-cv-00175-JAW Document 22-2 Filed 05/29/20 Page 2 of 8 PageID #: 516

transmission to prisoners in all MDOC facilities, I recommend testing of all prisoners and staff in all other MDOC facilities at this time, to determine whether there are asymptomatic cases of COVID-19 in other MDOC facilities. As discussed below, physical distancing remains the cornerstone of effective prevention even with adequate testing. 4. Some background information on testing is helpful to understand these tests results at MCC. As a general matter, a test for a certain disease can vary in its specificity and sensitivity. Specificity and sensitivity are measures of the test’s ability to accurately determine whether an individual has or does not have the disease. For example, a given test can generate both false positive and false negative results as diagramed below.

Test Total

Disease

+

–

Total

+ True Positive

False Positive

Total Positive Tests

– False

True

Total Negative

Negative Negative

Tests

Total with Total with Disease No Disease

All Persons Tested

5. The sensitivity of a test is the proportion of people with the disease who test positive and thus explains the ability of a test to correctly identify people who have the disease.

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Case 1:20-cv-00175-JAW Document 22-2 Filed 05/29/20 Page 3 of 8 PageID #: 517

Sensitivity = Proportion of people with disease who test positive
6. The specificity of a test is the proportion of people with no disease who test negative and thus explains the ability of a test to correctly identify those without the disease.

Test Total

Disease

+

–

+ TP FP

– FN TN

TN+FP

TN TN+FP

Specificity = Proportion of people with NO disease who test negative
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Case 1:20-cv-00175-JAW Document 22-2 Filed 05/29/20 Page 4 of 8 PageID #: 518
7. For example, a test with 95% sensitivity would return a positive result for 95% of individuals who actually have the disease, but will return a false negative result for 5% of individuals with the disease. Correspondingly, a test with 95% specificity will correctly return a negative test for 95% of individuals who do not have the disease, but will return a false positive result for 5% of individuals that do not have the disease.
8. The likelihood of a “false negative” also varies depending on the timing of the specimen collection for the test and the adequacy of the specimen to be tested. For example, a nasal swab specimen may return a false negative result if the person obtaining the sample fails to correctly gather the specimen, or if the specimen is collected too early in the course of the infection.
9. An understanding of testing for the novel coronavirus (SARS-CoV-2) is “still evolving.”3 At this time, the most common type of test for diagnosis of COVID-19 is reverse transcriptase-polymerase chain reaction (RT-PCR) testing, which is performed using nasopharyngeal swabs or other specimens from the upper respiratory tract. The swab is intended to capture detectible levels of viral RNA. Different RT-PCR tests target different viral RNA, and have different sensitivities.
10. The following chart depicts our current understanding of the time period during which a person who has been exposed to COVID-19 and ultimately develops symptoms related to the virus. Not all people experience symptoms from COVID-19, and that this chart does
3 Nandini Sethuraman, MD, et al., Interpreting Diagnostic Tests for SARS-CoV-2, JAMA, (May 6, 2020), available at doi:10.1001/jama.2020.8259.
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Case 1:20-cv-00175-JAW Document 22-2 Filed 05/29/20 Page 5 of 8 PageID #: 519 not address the timeframe of positive tests for “the large population of asymptomatic individuals who go undiagnosed without active surveillance.”4
11. For most people who experience symptoms from COVID-19, “viral RNA in the nasopharyngeal swab . . . becomes detectable as early as day 1 of symptoms and peaks within the first week of onset.”5
12. As with other tests, tests for COVID-19 are not always perfect at detecting people who have the virus. On the one hand, RT-PCR tests are very accurate when it comes to people who test positive; there are virtually no false positives, and they achieve about 99.99+ percent specificity, meaning that a positive test is almost certain to reflect a positive case
4 Nandini Sethuraman, MD, et al., Interpreting Diagnostic Tests for SARS-CoV-2, JAMA, (May 6, 2020), available at doi:10.1001/jama.2020.8259. 5 Id.
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Case 1:20-cv-00175-JAW Document 22-2 Filed 05/29/20 Page 6 of 8 PageID #: 520
of COVID-19.6 On the other hand, the sensitivity of these tests (i.e., the likelihood of
identifying all infected patients) has been a challenge, principally due to “sampling error
or the biology of the disease.”7
13. The sensitivities of the COVID-19 tests vary depending on several factors, including the
viral RNA being tested and the type of specimen being gathered. “In a study of 205
patients with confirmed COVID-19 infection, RT-PCR positivity was highest in
bronchoalveolar lavage specimens (93%), followed by sputum (72%), nasal swab (63%),
and pharyngeal swab (32%).”8 “False-negative results mainly occurred due to
6 Id. One article explained that “Specificity of most of the RT-PCR tests is 100% . . . [even though] [o]ccasional false positive results may occur due to technical errors and reagent contamination.” Id. 7 University of Washington, UW Medicine, Frequently Asked Questions About COVID-19 Testing. (emphasis added), https://testguide.labmed.uw.edu/public/guideline/covid_faq:
“How sensitive is the SARS-CoV-2 RT-PCR test?
The UW laboratory developed test (LDT) using the CDC kit has been shown to be at least as sensitive as any other test that to which it has been compared. Side-by-side comparison with the Washington State Public Health Lab showed 100% concordance in validation. The test is highly sensitive in an analytic sense; if viral RNA is present in the sample, it is very likely to be detected. However, either because of sampling error or the biology of the disease (e.g. virus present in lower but not upper respiratory tract), there have been known cases of patients with negative RT-PCR results who later were RT-PCR positive. The frequency of this (i.e. the clinical sensitivity) has not yet been determined.
In published literature, one case series of 51 patients showed a sensitivity of RT-PCR of 71% from the first throat swab or sputum. 23% of those initial negatives were positive on the 2nd RT-PCR, 4% on the 3rd, and 2% on the 4th RT-PCR test (Fang et al. 2020). Another study conducting serial RT-PCR testing showed the mean time from an initial negative RT-PCR to subsequent positive RT-PCR was 5.1 days (± 1.5 days) (Ai et al. 2020).
References • Fang Y, et al. Sensitivity of Chest CT for COVID-19: Comparison to RT-PCR. Radiology
2020:200432. 32073353 • Ai T, et al. Correlation of Chest CT and RT-PCR Testing in Coronavirus Disease 2019
(COVID-19) in China: A Report of 1014 Cases. Radiology 2020:200642. 32101510”
8 Id. (citing Wenling Wang, PhD, Detection of SARS-CoV-2 in Different Types of Clinical Specimens, JAMA (March 11, 2020), available at https://jamanetwork.com/journals/jama/fullarticle/2762997?utm_campaign=articlePDF&utm_mediu m=articlePDFlink&utm_source=articlePDF&utm_content=jama.2020.8259#full-text-tab).
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Case 1:20-cv-00175-JAW Document 22-2 Filed 05/29/20 Page 7 of 8 PageID #: 521
inappropriate timing of sample collection in relation to illness onset and deficiency in sampling technique, especially of nasopharyngeal swabs.”9 I do not know the type of test used for the Maine Department of Corrections (MDOC) testing. 14. The risk of false negatives means that some MDOC prisoners or staff who tested negative may nonetheless be infected with the coronavirus, and, in closed congregate settings, could infect other people with whom they have close contact. This is just one of the many reasons why physical distancing remains the cornerstone of effective prevention, even when there is adequate testing in one MDOC facility. 15. I have been provided with the declaration from Deputy Commissioner Ryan Thornell, PhD. In his declaration, Deputy Commissioner Thornell stated that “[t]he Maine CDC does not recommend testing at other MDOC facilities until there is reason to believe inmates or staff in those facilities have been exposed or are suspected of having COVID19.” Thornell Decl., ECF No. 20 at ¶ 58 (citing May 23, 2020 Maine Health Alert Network Public Health Advisory, ECF No. 20-5, Ex. E). In fact, the document cited by Deputy Commissioner Thornell simply states that “for mass testing at this time, Maine CDC’s Health and Environmental Testing Laboratory (HETL) will only test samples collected pursuant to this policy,” which advises universal testing after a single positive case. See Maine Health Alert Network Public Health Advisory, ECF No. 20-5 at 1. The advisory expressly notes that “facilities may opt to pursue universal testing before a single case is confirmed.” Id. Mindful of the risk of asymptomatic transmission in a closed congregate setting like DOC, it is my opinion, as stated above in paragraph #3, that testing of all prisoners and staff in all MDOC facilities (other than the Maine
9 Id.
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Case 1:20-cv-00175-JAW Document 22-2 Filed 05/29/20 Page 8 of 8 PageID #: 522 Correctional Center where testing is ongoing) should be conducted at this time, given the recently identified presence of one symptomatic and three asymptomatic prisoners in one of the MDOC facilities.
16. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 29th of May, 2020 /s/ R. Gibson Parrish, M.D. R. Gibson Parrish, M.D.
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Case 1:20-cv-00175-JAW Document 22-3 Filed 05/29/20 Page 1 of 4 PageID #: 523

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,

Petitioners, v.

Case No. 20-cv-00175-JAW

RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity, MAINE DEPARTMENT OF CORRECTIONS,

Respondents.

DECLARATION OF BRANDON GROSS
I, Brandon Gross, am over the age of 18 and fully competent to make the following declaration:
1. I am currently incarcerated in the Maine Department of Corrections (DOC), at the Bolduc Correctional Facility, which we sometimes call “the Farm.” My DOC number is 63136. I am 29 years old and am diagnosed with asthma, which I understand places me at higher risk for severe illness or death from COVID-19.
2. I am incarcerated for unlawful possession of cocaine, with a two-year sentence. My earliest release date is January 14, 2021.
3. I am scared that I could get sick or die in prison before my release date.
Medical Conditions and History
4. I have asthma and have had it since I was a kid. I have an albuterol rescue inhaler and often experience shortness of breath and other symptoms of asthma. The heat and wearing the mask have only made my symptoms worse. When my asthma flares up even more, I need nebulizer treatments. I believe that medical has me listed as having shortness of breath, which I have, as well as asthma.
5. When I get a cold or allergies, my asthma flares up and I sometimes get so stuffed up that I can’t breathe. I get chest pains and shortness of breath and everything feels tight and hard to breath.
6. I am also diagnosed with ADHD, bipolar disorder, and Meniere’s disease, which includes vertigo, tinnitus, and hearing loss in my left year. For these diagnoses, I am prescribed with Wellbutrin (for ADHD symptoms), Geodon (for bipolar), Meclizine (for nausea and dizziness), and a few other medications for fibromyalgia and fluid in my ear.

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Case 1:20-cv-00175-JAW Document 22-3 Filed 05/29/20 Page 2 of 4 PageID #: 524
Home Confinement
7. I am classified by DOC as “community” status. I had just been approved for work release when everything got shut down.
8. I have applied for home confinement to go live in a sober house. The best place for me to go would be to live with my mom and dad, who have room in their house for me to physically distance there. But people don’t seem to get approved for home confinement unless they’re going to work or a treatment house, so I put the sober house in my application.
9. Every time I ask my caseworker or other DOC staff about my application, they say I’m bothering them. My caseworker said “the more you ask, the more we’re not going to give it to you.” The Director also said I would not get home confinement if I kept “bothering his staff.” So I stopped asking.
10. The prison has said I am eligible for home confinement, but my application is still waiting to be approved.
11. I know that a lot of people here have been denied home confinement. Of all the people who have applied for home confinement at Bolduc (which is a minimum and community level facility), most people have been denied. Maybe one or two people got home confinement and they only had about 20 days left on their sentences.
12. I have been told that the home confinement application process usually takes four to six weeks before it is possible to get approved.
Conditions in the Prison
13. There was a staff member at Bolduc who tested positive for COVID-19, several weeks ago. This staff member was around multiple inmates before he developed symptoms. But the prison never tested any prisoners. They quarantined one person for a few days (not fourteen days) at the Maine State Prison. They brought him back to Bolduc after just a few days without being tested. Aside from that, nobody was quarantined. All they did was come to take our temperatures, and then left.
14. I wrote a grievance about how there is no social distancing in here and how DOC did not take any precautions after the positive test, and that I am at risk because of my asthma. DOC denied the grievance for a procedural reason (because they said it addressed more than one topic). The Commissioner approved the denial.
15. It is impossible to social distance in Bolduc. There are about 120 people in my dorm and 120 people in the dorm across the way. Within the dorms, we share toilets, sinks, showers, and common areas.
16. The cells are not very big and they’re shared between four to six people. It is impossible to stay six feet apart in the cells.
17. There are four “walks” in each dorm. There are two phones on each walk, which are not six feet apart and are not cleaned between uses. There are shared bathrooms (with toilets, sinks, and showers) on each walk, with each one shared among about forty people. But with 120 people in the dorm, there is no restriction on people using a bathroom from a different walk. Toilets, sinks, and showers are not cleaned between each use.
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Case 1:20-cv-00175-JAW Document 22-3 Filed 05/29/20 Page 3 of 4 PageID #: 525
18. The only place for us to wash our hands is in the shared bathrooms. There is no alcoholbased hand sanitizer available to prisoners.
19. The only time you can social distance is outside, but we are only allowed to go outside during some parts of the day.
20. I have no idea whether other prisoners or staff could have the virus, and, for most people, I do not think that DOC knows either. Nobody in my dorm has been tested. As for prison staff, DOC does not provide us with information about testing (except for the one positive test several weeks ago). Some guards periodically stay home and I do not know whether that is because they have symptoms of the disease. One of the officers on the night shift coughs all night and never wears a mask.
21. I have read that COVID-19 can live on surfaces for days and I am afraid that the virus could be living on surfaces throughout the dorm (including in the common areas and shared bathrooms). The dorm is supposed to be cleaned by prisoners twice a day, but there is no supervision to make sure they’re actually doing it, or are doing a thorough job. There is no bleach or bleach-based materials to clean. Instead, DOC provides a “neutral” pink cleaner. There has not been any change in the cleaning materials since we learned about COVID-19.
22. All prison staff and prisoners now have access to masks, but most staff do not wear masks most of the time. The masks that are provided to prisoners look like they are made of the same material as our boxer shorts. Even when I go into my caseworker’s office, he does not put on a mask.
23. Even though I try to stay away from other people as much as possible, there are many times each day when I cannot avoid close contact with other people.
a. When I wake up in my cell, I am surrounded by three other people in double bunk beds. None of us wear masks when we sleep.
b. We go to the meal hall three times a day. They call each walk (about 40 people) separately, but sometimes they call us back to back. It’s a small dining area and we can’t physically distance. We can sit about four feet (tops) away from others. They have tape marked out by six feet but nobody follows it because there is not enough room. We cannot wear masks when we eat.
c. When traveling in the facility to go to the meal hall or to get medical care, we travel crowded together, all bunched up.
d. Medical care, including medication, is provided in the administration building. I go to get medication three times a day. Sometimes the nurses do not wear gloves while passing out medication. There is tape marking out six feet to wait in the medication line, but nobody can follow it because there is not enough space. We stand one or two feet apart. We wear our masks in line, but cannot wear our masks when we are taking our medication.
e. I also work on grounds crew with about fifteen other prisoners from both dorms, plus an officer. We all travel together in a truck and we can’t socially distance. I have to keep working otherwise I will lose my good time credit for an earlier release.
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Case 1:20-cv-00175-JAW Document 22-3 Filed 05/29/20 Page 4 of 4 PageID #: 526

f. I started taking classes at the library, which is a small space where people come in and out and it is impossible to stay six feet apart. Anyone from any dorm could come into the library while I am there.
24. I am afraid that even if other prisoners get sick, they will try to hide it (and infect the rest of us) because they’re afraid of getting quarantined or getting sent up to the Maine State Prison. If someone gets sick or they think they’re sick, DOC will quarantine your entire cell. Your cell mates don’t want to get quarantined, so they pressure people not to report symptoms. I have heard people, including my cell mates, say they will not report symptoms because they do not want to get quarantined.
25. DOC tries to keep us limited to our dorm for the most part, but we mix dorms during work on the grounds crew. Plus I am worried that the staff could quickly spread the disease between the dorms. Officers congregate together (often without masks) and then travel to and from the different dorms. Not to mention that the staff travel to and from the community every day. Most days, rovers and caseworkers go dorm to dorm. Some caseworkers never wear masks even though they travel throughout the entire facility.
26. If someone gets COVID-19 here, it’s going to go through like wildfire. And it’s going to be the staff who bring it in.
27. I have provided authority to use my electronic signature for this declaration.
28. I declare under penalty of perjury that the foregoing is true and correct.

Dated May 29, 2020

/s/ Brandon Gross Brandon Gross

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Case 1:20-cv-00175-JAW Document 22-4 Filed 05/29/20 Page 1 of 3 PageID #: 527

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,

Petitioners, v.

Case No. 20-cv-175-JAW

RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity, MAINE DEPARTMENT OF CORRECTIONS,

Respondents

DECLARATION OF DALE SUKEFORTH
I, Dale Sukeforth, am over the age of 18 and fully competent to make the following declaration:
1. I am currently incarcerated in the Maine Department of Corrections (DOC), Maine Correctional Center. My DOC number is 9110. I am 50 years old and am diagnosed with numerous medical conditions, including diabetes and advanced cirrhosis of the liver, which I understand place me at higher risk for severe illness or death from COVID-19.
2. I am incarcerated for theft by unauthorized taking or transfer, with a 19-month sentence. My earliest release date is March 15, 2021, less than a year away. Even once I am released, I will remain supervised by the DOC during one year of probation.
3. I am scared that I could get sick or die in prison before my release date. I understand that there have been four positive tests in the Maine Correctional Center and I am worried I could be next.
Medical Conditions and History
4. I am 50 years old and am diagnosed with diabetes and advanced cirrhosis of the liver due to Hepatitis C. I also have post-traumatic stress disorder, am missing my spleen, and have undergone operations on my lungs in the past. I am prescribed medication for many of these conditions, including insulin for diabetes, Hepatitis-C medication for liver cirrhosis, as well as blood pressure medication and medication for my PTSD.
Conditions in the Prison
5. It is impossible to socially distance at the Maine Correctional Center, even with the new precautions after the positive COVID-19 tests in this facility. I am afraid that the dozens of people who I have close contact with each day could be carrying or spreading the virus.

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Case 1:20-cv-00175-JAW Document 22-4 Filed 05/29/20 Page 2 of 3 PageID #: 528
6. I live in A-Pod, which has almost 90 inmates, with four “walks,” divided into south side and north side, and bottom tier and top tier. There are three shower stalls in the entire dorm, which are not cleaned between uses.
7. I have read that COVID-19 can live on surfaces and I am afraid that the virus could be living on surfaces throughout the pod (including in the shared shower area). The dorm is supposed to be cleaned by prisoners once a day. We do not have any bleach or bleachbased materials to clean. Instead, DOC provides a pink cleaner that is supposed to sit on surfaces for ten minutes to be effective. The first time I saw anyone using this procedure (or clean the floors at all) was yesterday, after I spoke with an attorney on a recorded line about hygiene concerns. There has not been any change in the cleaning materials since we learned about COVID-19.
8. We have access to soap to clean our hands, but the hand sanitizer on the wall dispensers says that it has no alcohol in it.
a. The officers have their own hand sanitizer that they carry. Prisoners are not allowed to use the officers’ hand sanitizer. Once a day we get a squeeze of hand sanitizer during the medication line.
9. Even though I try to stay away from other people as much as possible, there are many times each day when I cannot avoid close contact with other people.
a. I wake up in a small cell that I share with one other person. It is impossible to physically distance when moving around in the cell.
b. Later in the morning, I line up for the medication line with the rest of the people south side bottom tier, about 20 people. Nobody can stay six feet apart in line. If prisoners wear masks at all, the masks often hang off one side of their face. There are three pieces of tape six feet apart, in the area closest to the nurse who hands out the medication. People behind those three pieces of tape stand bunched together, shoulder to shoulder. The nurse at the medication line does not wear a face shield and sometimes only has a cloth mask.
c. I need insulin four times a day. Each time, I have to walk through the pod and expose myself to close contact with people from other “walks” who are bunched together in the common areas. I walk with a guard to the medical office. Other people from different pods, including the pod where there has been a positive case, stand in line to wait for the nurse to provide insulin shots. The nurse who gives me insulin does not wear a face shield and has had contact with the positive cases of COVID-19 in the facility.
d. We get our meals in the pods. We walk to the middle of the pod to get our trays, along with the approximately 20 other people in our walk. Then we go and eat in our cells.
e. The phones in the common area are only about three feet apart. It is impossible to physically distance when using the phones. The phones are often not cleaned between uses, and when they are cleaned, they are not cleaned properly. As of today, an officer gave me a piece of plastic to put between my mouth and the phone.
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10. DOC tries to keep us limited to our pods, but I am still worried that the staff could quickly spread the disease between the pods. Officers from many different pods congregate together (often without masks) and then travel all around the facility. Not to mention that the staff travel to and from the community every day.
11. I was tested for COVID-19 last week and was tested again on May 27, 2020.
12. I have provided authority to use my electronic signature.
13. I declare under penalty of perjury that the foregoing is true and correct.

Dated May 28, 2020

/s/ Dale Sukeforth Dale Sukeforth

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Case 1:20-cv-00175-JAW Document 22-5 Filed 05/29/20 Page 1 of 2 PageID #: 530

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,

Petitioners, v.

Case No. 20-cv-00175-JAW

RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity, MAINE DEPARTMENT OF CORRECTIONS,

Respondents

SUPPLEMENTAL DECLARATION OF SEAN RAGSDALE
I, Sean Ragsdale, am over the age of 18 and fully competent to make the following declaration:
1. This declaration is to supplement my previous declaration dated May 15, 2020. The facts and conditions described in my previous declaration remain true, except that the nurse who provides my insulin wears gloves more frequently than before.
2. I understand that the Department of Corrections has claimed that all prisoners have access to 70% alcohol based hand sanitizer. Although I recently learned that there is a tub of alcohol based hand sanitizer in the pod, this container is kept behind closed doors in the officer’s area, and nobody has ever told me I am allowed to use it. If I was allowed to use this hand sanitizer, I would have expected notice of it to be on the wall with instructions, like everything else.
3. Instead, the hand sanitizer for prisoners is provided in dispensers on the wall. These dispensers clearly state that the hand sanitizer is “alcohol free.”
4. I understand that the Department of Corrections has claimed that medical staff have been wearing face shields, masks, and gloves when distributing medication. I have never seen a medical provider wearing a face shield at any point since the pandemic began and I go to medical numerous times each day. As discussed in my first declaration, nurses sometimes do not even wear gloves when distributing medication.
5. It has been more than 45 days since anyone has cleaned our sheets, pillowcases, or blankets.
6. I have savings and family support that would enable me to get housing where I could physically distance, if only the Department of Corrections would allow it. For example, my sister has helped me research options, including a stay at the Riverview Motel in Bangor, Maine, which I could afford. But it would make little sense for me to pay for a

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room there without knowing whether DOC will allow me to physically distance in the community.
7. Of the people I know who have gotten out on home confinement during the pandemic, almost all of them were going to work for LaBree’s bakery, which provided housing and employment. I do not know anyone who is older or who has medical conditions who has gotten home confinement for the purpose of physically distancing in the community.
8. I have provided my attorney with authority to use my electronic signature.
9. I declare under penalty of perjury that the foregoing is true and correct.

Date: May 29, 2020

/s/ Sean Ragsdale Sean Ragsdale

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Case 1:20-cv-00175-JAW Document 22-6 Filed 05/29/20 Page 1 of 2 PageID #: 532

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,

Petitioners, v.

Case No. 20-cv-00175-JAW

RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity, MAINE DEPARTMENT OF CORRECTIONS,

Respondents

SUPPLEMENTAL DECLARATION OF JOSEPH DENBOW
I, Joseph Denbow, am over the age of 18 and fully competent to make the following declaration:
1. This declaration is to supplement my prior declaration dated May 9, 2020.
2. In the May 9 declaration, I explained that the hand sanitizer provided by the Maine Department of Corrections does not contain alcohol, and, therefore, it is my understanding that it is not effective against COVID-19. I was referring to the hand sanitizer that is available in dispensers in the common area of the pod, which is accessible by prisoners. According to the label on the dispenser, this hand sanitizer contains “no alcohol.” Recently, a corrections officer ushered me over to his office and offered to let me use hand sanitizer that was stored inside. Based on the smell, I could tell right away that the hand sanitizer had alcohol in it. Prisoners are not allowed in the officers’ room unless an officer invites them inside. This is the first I have learned about alcohol-based hand sanitizer in the officer area. Nobody had ever told me in the past that there was any hand sanitizer available other than what is provided in dispensers on the wall. Even now, I am unsure how to request permission to use the hand sanitizer in the officers’ area. There are no notices about it posted on the wall, with the other hygiene information about COVID-19. I have talked with other prisoners and none of them were aware about the alcohol-based hand sanitizer.
3. I understand that the Maine Department of Corrections has represented that all work programs in the community have been shut down in light of the risks of COVID-19. Recently, however, Mountain View has had prisoner work crews doing lawn work off of prison grounds in certain situations. I know this because I am usually part of the work crew and the officer who leads it asked me to help out with yard work in a cemetery (off prison grounds). Someone else on the yard crew told me that they are going out on Friday to mow lawns off prison grounds.

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4. I have never seen any staff member—whether medical staff or DOC staff—wearing a face shield or a medical gown. Staff often do not even wear masks or gloves.
5. A few days ago, I was talking to a DOC officer who told me that “right now I bet if they tested everyone, there would be a positive test here already.”
6. Ever since learning about the positive tests in the Windham facility, I have been more scared than ever. I have been a physical and emotional wreck from fear of getting sick and maybe dying from COVID-19. I am scared of never seeing my kids or fiancée again.
7. I have provided my attorney with authority to use my electronic signature.
8. I declare under penalty of perjury that the foregoing is true and correct.

Dated May 29, 2020

/s/ Joseph Denbow Joseph Denbow

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Case 1:20-cv-00175-JAW Document 22-7 Filed 05/29/20 Page 1 of 4 PageID #: 534

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,

Petitioners, v.

Case No. 20-cv-175-JAW

RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity, MAINE DEPARTMENT OF CORRECTIONS,

Respondents

DECLARATION OF ARTHUR GRAY
I, Arthur Gray, am over the age of 18 and fully competent to make the following declaration:
1. I am currently incarcerated in the Maine Department of Corrections (DOC), Maine State Prison. My DOC number is 75620. I am 29 years old and am diagnosed with asthma that I understand places me at higher risk for severe illness or death from COVID-19.
2. I am incarcerated for unlawful furnishing of scheduled drugs, with a four year sentence with all but twelve months suspended and two years of probation. My earliest release date is August 5, 2020. Even once I am released, I will remain supervised by the DOC during two years of probation.
3. My release plan is to go live with my mother, who is medically vulnerable herself. I am scared that I could get sick or die in prison before my release date, or that I could be released after getting infected with COVID-19 and expose my mother to the virus.
Medical Conditions and History
4. I am 29 years old and suffer from asthma. Although my asthma is currently wellmanaged, it usually flares up when I get a virus. Years ago, I needed hospital care when I got sick and was unable to breathe. I am afraid that, if I catch COVID-19, I will be unable to breathe and could get very sick or even die.
5. I also have chronic bronchitis, which means that once or twice a year I get a flare up of symptoms like severe cough and shortness of breath and loss of voice from coughing so much.
6. I have opioid use disorder. I am now in recovery and am on the medication assisted treatment (“MAT”) program in prison.

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Home Confinement
7. My mother has reached out multiple times to ask for me to be released on home confinement to physically distance at home. The Classification Director Benjamin Beal told her that there was no chance that I would get released because I am classified as “close.”
8. Since being in prison, I have gotten only one disciplinary write-up for tattooing.
Conditions in the Prison
9. It is impossible to socially distance at Maine State Prison. I am afraid that the more-thaneighty people who I have close contact with each day could be carrying or spreading the virus.
10. I share a dorm, common area, phones, commissary, and showers, with approximately eighty other inmates. There are seven shower stalls in the entire dorm, shared among all eighty people.
11. I have no idea whether other prisoners or staff could have the virus, and, for most people, I do not think that DOC knows either. Nobody in my dorm has been tested, as far as I know. As to prison staff, DOC does not provide us with information about testing. Some guards have stayed home lately, and I do not know whether the officers are staying home because they have symptoms of the disease. I saw news reports that an officer at Bolduc Facility tested positive, but I do not know whether any of the officers at Maine State Prison have tested positive.
12. I have read that COVID-19 can live on surfaces for days and I am afraid that the virus could be living on surfaces throughout the dorm (including in the shared shower areas). The dorm is cleaned once a day and the door handles on our cells are sprayed three times a day. The shower area is only required to be cleaned once a week. We do not have any bleach or bleach-based materials to clean. Instead, DOC provides a “neutral” cleaner that is safe to drink. There has not been any change in the cleaning materials since we learned about COVID-19.
13. We have access to soap to clean our hands, but there is no hand sanitizer in the dorm. There is hand sanitizer at the meal hall. We have asked whether that hand sanitizer has alcohol in it, but nobody will give us a direct answer.
14. All prison staff and prisoners now have access to masks, but officers do not wear masks all the time, including when they are supposed to. Prisoners do not have to wear their masks in the pod, which has 80 people in it, and nobody does. The masks that are provided to prisoners look like they are made of the same material as our boxer shorts.
15. Even though I try to stay away from other people as much as possible, there are many times each day when I cannot avoid close contact with other people.
a. When traveling in the facility to go to the meal hall or to get medical care, we travel crowded together, all bunched up.
b. Three times a day, I go with my entire dorm (eighty people) to the meal hall, where we have to stand in line for our trays, crowded together elbow to elbow. We are all bunched up and cannot physically distance. Then we have to bring our
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trays back to the dorm, where there are not enough tables so people sit closer than six feet while they are eating meals. Nobody wears masks while we are eating. When I arrive at the meal hall, I often see another dorm leaving out the other door. I never see anyone cleaning the meal hall in between dorms.
c. In the morning, I receive my medication through the MAT program, where it is also impossible to distance. During this process, I am locked in a small space with six other prisoners, two to three officers, and a nurse. The prisoners are seated so close that we are bumping elbows. None of us can wear masks. Officers get really close as we have to lift our tongues, show our lips and the insides of our mouth several times throughout the process. The officers are wearing cloth masks, but they have to get so close that they are almost breathing into my mouth.
d. At medication line at the end of the day, the nurse is in a bubble and often does not wear a mask when handing us our medication. After we get our medication, we have to show our tongue to another officer. We wear masks in line, but can’t wear masks while we’re taking the medication.
e. The phone area is in the dorm and eighty prisoners share the phones. The phone area is cleaned only once a day, if that.
16. I am afraid that even if other prisoners get sick, they will try to hide it (and infect the rest of us) because they’re afraid of getting quarantined. A few weeks ago, someone in my dorm had a cough and other symptoms but refused to self-report to officers because he did not want to go to segregation or quarantine.
17. DOC continues to transfer people between dorms. The day before yesterday, someone was transferred from a medium dorm to a close custody dorm. He was not quarantined for any period of time.
18. DOC tries to keep us limited to our dorms, but I am still worried that the staff could quickly spread the disease between the dorms. Officers from many different dorms congregate together (often without masks) and then travel to and from the dorms all around the facility. Not to mention that the staff travel to and from the community every day.
a. Officers from the “Special Operations Group” go from dorm to dorm multiple times a day. If one of them was carrying the virus, they could spread it through the entire facility.
b. Officers are not consistently assigned to one dorm, but can circulate through multiple different dorms through the week. If one officer was infected, they could spread it to multiple different dorms that way.
c. Officers search our cells two or three times a week. They close the door as they search, so we do not know whether or not they are wearing masks. They do not change their gloves between searches.
19. I have provided authority to use my electronic signature.
20. I declare under penalty of perjury that the foregoing is true and correct.
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Dated May 23, 2020

/s/ Arthur Gray Arthur Gray

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Case 1:20-cv-00175-JAW Document 22-8 Filed 05/29/20 Page 1 of 2 PageID #: 538

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,

Petitioners, v.

Case No. 20-cv-00175

RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity, MAINE DEPARTMENT OF CORRECTIONS,

Respondents

DECLARATION OF EMMA BOND, ESQ.
I, Emma Bond, am over the age of 18 and fully competent to make the following declaration:
1. I am an attorney residing in Portland, Maine. My bar number is 005211.
2. I am a staff attorney at the American Civil Liberties Union of Maine and, in that capacity, serve as an attorney for Petitioners Joseph A. Denbow and Sean R. Ragsdale and have sought to serve as an attorney for the putative class in the above-captioned case.
3. Throughout this litigation, we have relied on communications with prisoners in the Maine Department of Corrections (DOC) custody to learn about conditions within DOC facilities. There have been several challenges with ensuring such communication remains available, especially given some of the precautions associated with the COVID-19 pandemic. The difficulty in contacting certain prisoners has become even more severe since the confirmed positive COVID-19 tests in the Maine Correctional Center in Windham.
4. For example, we have unsuccessfully attempted to contact two incarcerated people at the Maine Correctional Center, but were unable to set up calls with them due to “lock-down” precautions. I emailed the case worker for one of the men on Tuesday, May 26, 2020, stating “I am checking in on the requested call with [named prisoner]. When I called several times last week (Wednesday, Thursday, and Friday), the update was [that] you were not able to get in touch with [this prisoner] because of the lock-down. Has there been any update in setting up a call with him?” The case worker responded “Sorry we still cannot get anyone for calls at this time.”
5. We were able to contact a third prisoner at the Maine Correctional Center, whose declaration is being filed alongside the Petitioners’ reply.
6. Even for prisoners who we are able to contact, we are only able to speak with the prisoner when they are in a DOC case worker’s office (which is not a confidential setting) or on a
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recorded phone line for which prisoners have to pay by the minute. Each time a prisoner calls me on the recorded phone line, the call begins by stating the call is recorded and monitored. Some prisoners are unable to reach me or must shorten phone calls because they do not have enough money on their phone accounts.
7. DOC has stated that prisoners have access to electronic tablets, but I understand (from conversations with case workers) that prisoners are supervised by DOC staff in close proximity while using the tablets. Some case workers have also stated that they are attempting to work on a system to have professional visits conducted on tablet, but have not yet determined a method of doing so.
8. I declare under penalty of perjury that the foregoing is true and correct.

Dated May 29, 2020

/s/ Emma E. Bond Emma E. Bond

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 Case 1:20-cv-00175-JAW Document 25 Filed 06/08/20 Page 1 of 58 PageID #: 543

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

JOSEPH A. DENBOW et al., Petitioners,
v. MAINE DEPARTMENT OF CORRECTIONS et al.,
Respondents.

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No. 1:20-cv-00175-JAW

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ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER Two individuals incarcerated in facilities operated by the Maine Department of Corrections filed a habeas action seeking a temporary restraining order on behalf of themselves and others similarly situated against the Department and its commissioner, claiming Eighth Amendment violations and violations of the Americans with Disabilities Act and the Rehabilitation Act. The order these individuals seek would fundamentally alter central details of the Department’s COVID-19 response. Because the Court believes that significant unresolved factual disputes preclude a finding that the incarcerated individuals have established a likelihood of success on the merits for their claims or that they have established a likelihood of irreparable harm in the absence of injunctive relief, the Court denies temporary injunctive relief. The Court plans on moving ahead quickly with the individuals’ request for a preliminary injunction.

Case 1:20-cv-00175-JAW Document 25 Filed 06/08/20 Page 2 of 58 PageID #: 544
I. BACKGROUND A. Procedural Background On May 15, 2020, Joseph A. Denbow and Sean R. Ragsdale (Petitioners) filed
a petition for habeas corpus and complaint against the Maine Department of Corrections (MDOC) and Randall A. Liberty, the commissioner of the MDOC (Respondents), on behalf of themselves and a putative class of those similarly situated. Pet. for Writ of Habeas Corpus and Compl. for Injunctive and Declaratory Relief (ECF No. 1) (Pet.). On May 18, 2020, Petitioners filed a motion for a temporary restraining order or preliminary injunction. Class Mot. for TRO or Preliminary Inj. (ECF No. 5) (Pet’rs’ Mot.). Also on May 18, 2020, the Court held a conference of counsel with counsel for Petitioners and Respondents at which the Court ordered a joint status report by May 20, 2020, and set the case for a second conference of counsel on May 21, 2020. Min. Entry (ECF No. 10); Notice of Hr’g (ECF No. 11).
On May 19, 2020, Petitioners informed the Court that the MDOC had reported the first case of COVID-19 of a person in Maine custody. Notice of First Confirmed COVID-19 Case in Maine Department of Corrections Custody (ECF No. 12). On May 20, 2020, the parties filed a joint status report, as ordered by the Court. Joint Status Report and Proposed Briefing Schedule (ECF No. 13) (Status Rep.). In the status report, the parties informed the Court of updates in the MDOC’s COVID-19 response based on the first positive test result, Mr. Denbow’s state post-conviction review proceeding, the parties’ agreement on waiver of service, and Petitioners’ requested relief. Id. at 1-6. The parties also proposed opposing briefing schedules, including
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Respondents’ request to bifurcate procedural challenges from consideration of the merits; opposing views of the scope of possible discovery; and opposing views of class certification. Id. at 6-13.
On May 21, 2020, Petitioners filed a motion to seal certain exhibits filed with their complaint, along with redacted versions of those exhibits. Mot. to Seal Exs. (ECF No. 14); Redacted Docs. (ECF No. 15). Later that day, Petitioners filed a notice informing the Court of supplemental authority. Notice of Suppl. Authority (ECF No. 16). Also on May 21, 2020, the Court held a conference of counsel at which the Court set a briefing schedule for response to Petitioners’ motion for temporary restraining order and informed counsel for Petitioners that the Court expected Petitioners to address the need for sealing in this case in light of United States v. Kravetz, 706 F.3d 47 (1st Cir. 2013). Min. Entry (ECF No. 17).
On May 27, 2020, Respondents filed a response to the motion for temporary restraining order along with two affidavits. Opp’n to Mot. for TRO (ECF No. 19) (Resp’ts’ Opp’n); Aff. of Dr. Ryan Thornell, Ph.D., in Opp’n to Mot. for TRO (ECF No. 20) (Thornell Aff.); Aff. of Dr. John Newby, D.P.M., in Opp’n to Mot. for TRO (ECF No. 21) (Newby Aff.). Petitioners filed a reply on May 29, 2020. Reply in Supp. of TRO (ECF No. 22) (Pet’rs’ Reply). On June 1, 2020, Petitioners filed a motion withdrawing their motion to seal exhibits. Withdrawal of Mot. to Seal (ECF No. 23). The Court held oral argument by Zoom hearing on June 2, 2020. Min. Entry (ECF No. 24).
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B. Factual Background The Court takes this factual background from the Petition and the affidavits and declarations submitted by Petitioners and Respondents.
1. The Parties The two Petitioners are currently serving terms of incarceration at Maine Department of Corrections (MDOC) facilities. Pet. ¶ 7. They bring this habeas petition on behalf of themselves and a putative class of all current and future individuals incarcerated at MDOC facilities who, by reason of age or medical condition, are particularly vulnerable to injury or death if they were to contract COVID-19 (the Class). Id. ¶ 62. Within this class, Petitioners define three subclasses. The Imminent Release Subclass are members of the Class (Class Members) who are set to be released within one year. Id. ¶ 67. The Minimum Security Subclass consists of Class Members classified by MDOC as minimum or community security. Id. The Disabilities Subclass is made up of those who are medically vulnerable to COVID-19 because of disabilities protected by federal disability rights law. Id. Petitioner Sean R. Ragsdale, a fifty-six-year-old man, is incarcerated in Mountain View Correctional Facility. Id. ¶ 13. Mr. Ragsdale is at high risk for serious illness or death if he contracts COVID-19 due to a long-term chest infection, diabetes, and Hepatitis C, which has caused him liver damage. Id. Because of these conditions, Mr. Ragsdale regularly uses an inhaler, takes insulin twice a day, and— due to his diabetes—has been given work restrictions by doctors to not stand on his
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feet for prolonged periods of time or engage in strenuous activity. Id. While medication to treat his Hepatitis C and prevent further liver disease is medically indicated, the MDOC has not provided that medication. Id. Though payments have been suspended while he is in prison, Mr. Ragsdale receives Social Security income for his disabilities. Id. Mr. Ragsdale was convicted of two counts of aggravated trafficking of drugs and has completed the majority of his sentence of imprisonment, with a planned release date of July 17, 2020. Id. Mr. Ragsdale is currently classified as “community” custody, meaning that, but for the current COVID-19 restrictions, he would be approved to work in the community during the day. Id.
Petitioner Joseph A. Denbow (together with Mr. Ragsdale, Petitioners) is a fifty-four-year-old man also incarcerated in Mountain View Correctional Facility. Id. ¶ 14. Due to his asthma, chronic obstructive pulmonary disease, and the fact that he is in remission from colorectal cancer, he is at high risk for developing serious illness or death from COVID-19. Id. Mr. Denbow is incarcerated for driving without a license and aggravated forgery, and has completed most of his two-year prison sentence, with an earliest release date of August 30, 2020. Id. He is currently classified as “minimum” security, and before the current COVID-19 restrictions went into effect he worked in the community during the day doing odd jobs. Id.
The MDOC is a Maine state agency “responsible for the direction and general administrative supervision, guidance and planning of adult and juvenile correctional facilities and programs within the State.” Id. ¶ 16 (quoting 34-A M.R.S. § 1202). Randall A. Liberty is Commissioner of the MDOC, and in that role, he has “general
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supervision, management and control of the research and planning, grounds, buildings, property, officers, employees and clients of any correctional facility, detention facility or correctional program.” Id. ¶ 15 (quoting 34-A M.R.S. § 1402(1)).
2. The COVID-19 Pandemic The novel coronavirus that causes COVID-19 has led to a global pandemic, with millions of cases throughout the world and many cases throughout the United States and Maine. Id. ¶ 17. Official reports of the incidence of COVID-19 are likely underestimates due to a lack of widely available testing. Id. The virus is known to spread from person to person through respiratory droplets, close personal contact, and contact with contaminated surfaces and objects. Id. ¶ 19. There is no vaccine against COVID-19 or any known medication effective at preventing or treating it. Id. Social distancing—i.e. deliberately keeping at least six feet of space between individuals—and a vigilant hygiene regimen, including hand hygiene, are critical for protecting against the virus’ transmission. Id. These measures are important because COVID-19 spreads aggressively, and even those who are asymptomatic can spread it. Id. ¶ 20. The only assured way to curb the spread of COVID-19 is to dramatically reduce interpersonal contact, and institutions across the United States have been exhorted to reduce the number of people in close quarters, if not empty entirely, as well as to undertake aggressive sanitation measures, such as cleaning and disinfecting surfaces with products that contain a particular percentage of alcohol and closing off areas used by sick persons. Id.
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Once contracted, COVID-19 can cause severe damage to lung tissue, including permanent loss of respiratory capacity, and can damage tissues in other vital organs such as the heart and liver. Id. ¶ 21. People over the age of fifty face a greater risk of serious illness or death from COVID-19, with estimates suggesting age groups above fifty face progressively higher mortality rates. Id. ¶ 22. Additionally, 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, epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, and asthma—also have an elevated risk, including higher rates of mortality for certain conditions. Id. ¶ 23.
In many people, COVID-19 causes fever, cough, and shortness of breath; however, many people in higher risk categories who develop serious illness will need advanced support, such as ventilators and care providers. Id. ¶ 24. In serious cases, COVID-19 causes acute respiratory disease syndrome, which is life-threatening; even where this is not the case, the virus can cause severe and in some cases permanent lung damage, cardiac complications including heart failure, and damage to other organs. Id. ¶ 25. These complications can manifest and cause serious harm very quickly—in as few as five days after exposure. Id. ¶ 26. Recent estimates suggest the fatality rate of people infected with COVID-19 is approximately ten times higher than a severe seasonal influenza, and patients who do not die from serious cases may
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still face prolonged recovery periods. Id. ¶ 27. The United States Centers for Disease

Control and Prevention’s (CDC) best estimate as of May 20, 2020, was that

approximately sixty-five percent of individuals who contract COVID-19 will develop

symptoms, 3.4 percent of those symptomatic cases will require hospitalization, and

0.4 percent of symptomatic cases will result in death. Resp’ts’ Opp’n at 2 (citing U.S.

CDC,

COVID-19

PANDEMIC

PLANNING

SCENARIOS

at

4-5,

https://www.cdc.gov/coronavirus/2019-ncov/hcp/planning-scenarios-h.pdf).

The

United States currently leads the world in confirmed cases of COVID-19 cases, and

as of May 14, 2020, Maine has had 1,565 confirmed cases, 207 hospitalizations, and

sixty-nine deaths. Pet. ¶ 28. Many of these deaths occurred in congregate care

nursing facilities. Id. There is no way to know when the number of daily cases will

abate. Id.

3. COVID-19 in Prisons

People who live or work in prisons face a particularly acute threat of illness,

permanent injury, and death, beyond that faced by the general public, and dramatic

outbreaks of COVID-19 have occurred in Chicago, New York City, and Ohio. Id.

¶¶ 29-30. In fact, eight of the ten largest known infection sources in the United States

are associated with jails or prisons. Id. ¶ 30. People in congregate environments—

places where people live, eat, and sleep in close proximity—face increased danger of

contracting COVID-19; it is virtually impossible for people in prisons to engage in the

necessary social distancing and hygiene required to mitigate transmission risks due

to high numbers of shared contact surfaces, limited access to medical care, and high

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numbers of people with chronic, often untreated, illnesses living in close proximity. Id. ¶ 31. Correctional facilities house large groups of people together and move people in groups to eat, recreate, and obtain medical care, which is often insufficient for the population. Id. ¶ 32. The incarcerated population is generally responsible for cleaning the facilities with minimal supervision, and outbreaks of the seasonal flu regularly occur in jails and prisons—including one such outbreak in two facilities in Maine in 2011. Id. ¶¶ 32-33. Many public health experts have warned that those held in correctional settings are likely to face serious harm due to COVID-19. Id. ¶ 34. Because most of the people who enter correctional facilities typically leave those facilities in short order—particularly correctional and medical staff—failing to prevent and mitigate the spread of COVID-19 endangers not only those within the facility, but the entire community. Id. ¶ 35.
4. COVID-19 in Maine and MDOC Facilities Many public health experts have recommended that correctional facilities rapidly release those most vulnerable to COVID-19, which has the dual benefit (in those experts’ view) of protecting those vulnerable individuals while simultaneously facilitating risk mitigation among those who remain in the correctional facility and reducing the burden on regional health care infrastructure. Id. ¶ 42. Jail administrators across the country have concluded that widespread jail release is a necessary and appropriate public health intervention, and as of May 8, 2020, county jails in Maine had reduced their populations by more than forty percent since January 2020. Id. ¶ 43.
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There have been confirmed cases of COVID-19 in every county in Maine. Id. ¶ 37. Penobscot County, where Mountain View Correctional Facility is located, has had ninety-one confirmed cases as of May 14, 2020, and has experienced spreading of the virus through community transmission. Id. Cumberland County, where Maine Correctional Center (MCC) and Southern Maine Women’s Reentry Center are located, had 778 cases as of May 14, 2020, and also has confirmed community transmission of the virus. Id.
In early March 2020, the MDOC—in consultation with the Maine Center for Disease Control and Prevention (MCDC)—developed a three-phase approach to combating COVID-19, containing escalating protective measures. Thornell Aff. ¶ 7; Pet. ¶ 44. MDOC immediately entered into phase one, aimed at preparation and prevention. Thornell Aff. ¶ 7. The MDOC moved to phase two of that plan on March 13, 2020, when there was a confirmed case in the community, id. ¶¶ 7, 22; phase two includes the following measures:
(1) suspending visitation, work release, and other communityrelated activities;
(2) implementing screening measures for staff; (3) providing for increased cleaning and provision of cleaning
supplies; (4) posting signage about hand washing and general fact sheets
about COVID-19; (5) using personal protective equipment (PPE) for certain categories
of staff; (6) providing the influenza vaccine to those who want it but have not
received it;
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(7) providing daily briefings at all facilities; (8) suspending self-serve dining; (9) pre-planning with local hospitals; and (10) designating isolation areas at each facility and limiting the
number of staff working at multiple facilities. See Pet. ¶ 44. The MDOC has also provided two cloth masks to each incarcerated individual and, in some facilities, created alternative systems for providing meals. Id. ¶ 45. The MDOC stated that it would enter phase three when there is a suspected or confirmed case within an MDOC facility but did not do so after the confirmed positive case of a corrections worker at the MDOC facility in Bolduc, Maine. Id.
On March 23, 2020, the CDC issued guidance specific to correctional facilities, which the MDOC follows to the extent feasible within the physical parameters of its facilities. Thornell Aff. ¶ 33. In early March 2020, the MDOC instituted changed cleaning protocols at its facilities, as well as issuing directives encouraging social distancing practices, modifying medication administration procedures to occur within housing units, and limiting group activities. Id. ¶¶ 8-9, 12, 21-22. The MDOC also educated incarcerated individuals about COVID-19 and its prevention, ensured it had what it believed to be adequate supplies of PPE and other crucial supplies available, and ensured that each facility had a plan for isolating suspected COVID-19 cases and for potential staff shortages. Id. ¶¶ 9, 14-15, 21, 25; Newby Aff. ¶¶ 14-15, 18-20. The MDOC and Wellpath (the MDOC’s medical contractor) also altered the delivery of healthcare services in response to COVID-19, including the use of PPE by providers
11

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and patients during examination, cleaning and disinfecting of equipment and medical areas between patient visits, and use of telehealth visits where possible. Newby Aff. ¶¶ 22-35; Thornell Aff. ¶¶ 12, 22, 52. The MDOC has waived co-pays for sick calls for inmates with COVID-19-like symptoms to encourage inmates to seek treatment. Newby Aff. ¶ 30. Because of these and other protective steps, MDOC facilities have been able to continue to provide chronic care visits and other necessary medical treatments to inmates suffering from chronic conditions. Id. ¶¶ 34-35.
The MDOC has worked closely with the MCDC to prevent and respond to COVID-19, meeting daily with the MCDC director and following the MCDC’s protocols on testing. Thornell Aff. ¶ 6-7, 57-58. Immediately after the positive test at Bolduc Correctional Facility, the MDOC issued a directive to all facilities regarding positive case reporting and contact tracing, as advised by the MCDC. Id. ¶ 37.
The MDOC has taken measures to inform inmates, staff, and the public of best practices and important events related to COVID-19. Id. ¶¶ 10, 35-36, 59-60. On March 31, 2020, the MDOC began publishing daily information regarding COVID-19 in MDOC facilities on the web via a daily dashboard. Id. ¶ 35. The posted information includes the number of inmates tested, the number of pending tests, the number of positive and negative results, and the number of individuals refusing tests, as well as population data and data on the Supervised Community Confinement Program (SCCP). Id. The MDOC has also kept inmates and staff updated on new developments, guidance, and protocols relating to COVID-19. Id. ¶¶ 8, 21, 36-37, 40.
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The MDOC initiated phase three on May 19, 2020, at MCC due to the first positive test there. Id. ¶ 52. Phase three involves notifying state agencies and the medical community according to state protocol, increasing use of PPE (including n95 masks for staff), suspending programming as necessary, isolating intakes in cohorts, instituting alternative methods for medical distribution and food service as necessary, and triaging sick calls. Pet. ¶ 46; Thornell Aff. ¶ 52. The other MDOC facilities continue to take phase two precautions as of May 27, 2020. Thornell Aff. ¶ 53.
Once phase three began, the MDOC tested the entire population of MCC within four days, including incarcerated individuals, staff, and medical personnel.1 Id. ¶ 55. These tests discovered three additional positive cases of COVID-19. Id. Within hours of learning of these positive results, the MDOC notified its staff and the public of the results and the steps taken to reduce the spread of the virus. Id. ¶¶ 36, 59-60. The MDOC also isolated and tested two individuals who had recently been transferred from MCC to other facilities; these tests came back negative. Id. ¶¶ 53-54. All the individuals who tested positive for COVID-19 are located at MCC, where they have been isolated and are receiving medical care; none has required hospitalization. Id. ¶¶ 55-56. In consultation with the MCDC, the MDOC began conducting universal re-testing at MCC, which had an expected conclusion date of June 1, 2020. Id. ¶ 57. On May 23, 2020, the warden of MCC declared an emergency to obtain authorization from Maine Governor Janet Mills to divert staff to MCC to address the emergency

1

A small handful of individuals refused testing. Id. ¶ 55.

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and assist with universal re-testing. Id. ¶ 61. Overall, the MDOC has performed over 750 COVID-19 tests on inmates and staff since the beginning of the pandemic. Id. ¶ 18.
As of April 13, 2020, the MDOC and county jails agreed to stop the transfer of inmates to MDOC facilities, and after Governor Mills’ May 15, 2020, executive order, there will be no admissions from county jails to MDOC facilities until Maine’s emergency declaration ends. Id. ¶ 50. Prior to this, the MDOC ordered that any incarcerated individuals arriving from county jail would only go to MCC, and they would all be met by staff in full PPE, undergo medical assessments, and quarantine for fourteen days after transfer. Id. ¶¶ 30, 38; Newby Aff. ¶ 36. In March, MDOC suspended work release programs and all non-professional visits at its facilities. Thornell Aff. ¶¶ 26, 32. The MDOC has also implemented screening requirements for everyone entering the prisons, developed in consultation with the MCDC. Id.¶ 31.
Though MDOC policy has changed from encouraging social distancing to requiring it where feasible, prisoners in MDOC facilities cannot perform basic physical distancing beyond what is feasible within the physical parameters of the MDOC facilities. Pet. ¶¶ 38, 47; Thornell Aff. ¶¶ 33, 42; Pet’rs’ Reply, Attach. 3, Decl. of Brandon Gross ¶¶ 13-16, 19, 23 (Gross Decl.); Pet’rs’ Reply, Attach. 4, Decl. of Dale Sukeforth ¶¶ 5-6, 9-10 (Sukeforth Decl.); Pet’rs’ Reply, Attach. 7, Decl. of Arthur Gray ¶¶ 9-10, 15 (Gray Decl.). Prisoners typically sleep in cells containing two to four individuals, share showers with thirty to eighty other inmates, and spend much of
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the day in small and crowded rooms. Pet. ¶ 47. Additionally, when traveling throughout the facility to go to the meal hall or elsewhere, prisoners are bunched together and cannot physically distance due to lack of space. Id. Petitioners, as an example, live in dorms with approximately fifty other individuals with whom they share common rooms, sinks, showers, and toilets, and sleep in small rooms with three other people. Id. ¶ 38.
MDOC policy requires inmates and staff to wear masks in all facility areas when and where social distancing is not available. Thornell Aff. ¶ 43. In practice, the MDOC does not enforce the requirement to wear masks in the common rooms or dorms, and corrections officers often do not wear masks while standing within six feet of colleagues. Pet. ¶ 39; Sukeforth Decl. ¶ 10; Gross Decl. ¶¶ 20, 22, 25; Pet’rs’ Reply, Attach. 5, Suppl. Decl. of Sean Ragsdale ¶ 4 (Suppl. Ragsdale Decl.); Pet’rs’ Reply, Attach. 6, Suppl. Decl. of Joseph Denbow ¶ 4 (Suppl. Denbow Decl.); Gray Decl. ¶¶ 1415. Although following new April 2020 CDC guidance on masks, incarcerated individuals were given two cloth masks made from the same material as prison-issue boxer briefs, prisoners are sometimes unable to sanitize them between uses and the material quickly breaks down when washed. Pet. ¶ 39; Gross Decl. ¶ 22. Furthermore, masks offer only limited benefits to the mask-wearer when others in the vicinity are not wearing masks. Pet. ¶ 40. As with staff, prisoners often do not wear masks. Id. ¶ 47.
Although the MDOC provides prisoners with gloves and spray bottles of nonbleach-based cleaning products to clean the dormitories and bathrooms, there is
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minimal supervision to ensure consistent or thorough cleaning. Id. ¶ 47; Suppl. Ragsdale Decl. ¶ 5. For hand hygiene, Petitioners have access to a bathroom sink which they share with approximately fifty other prisoners, as well as alcohol-free hand sanitizer, even though the MCDC recommends that people use hand sanitizer with an alcohol content of sixty to ninety-five percent. Pet. ¶ 41. Incarcerated individuals at all MDOC facilities have access to hand sanitizer with an alcohol content of seventy percent; however, due to the potential for abuse, it must be dispensed by officers. Thornell Aff. ¶ 49. Petitioners did not know that this alcoholbased hand sanitizer existed until recently; it is kept behind closed doors in the officers’ area and Petitioners have not received any notice that they are entitled to its use. Suppl. Ragsdale Decl. ¶ 2; Suppl. Denbow Decl. ¶ 2.
As of May 14, 2020, the MDOC had tested only twenty-six inmates, or 1.3 percent of the incarcerated population. Pet. ¶ 47. Outside of MCC, the MDOC does not test individuals who are exposed to someone who has tested positive unless they are symptomatic. Id. Because some prisoners are afraid of being forced into segregation or isolation if they test positive for COVID-19, such individuals have expressed that they will not report and will even try to hide symptoms if they begin to experience them. Id.
5. MDOC’s Use of Medical Furlough and Supervised Community Confinement
Unlike other correctional facilities in Maine, the MDOC has not engaged in widespread or systematic release of people who are medically vulnerable, near the end of their sentence, or otherwise eligible for home confinement. Id. ¶ 50. Pursuant
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to 34-A M.R.S. § 3035(2), Commissioner Liberty has authority to grant individuals medical furlough to obtain medically-required medical services. Id. ¶ 51. Under 34A M.R.S. § 3036-A(2), Commissioner Liberty may also transfer any incarcerated individual in MDOC custody to SCCP transfer, subject to certain statutory restrictions. Id. The MDOC retains custody and oversight over individuals on both medical furlough and SCCP transfer, though there is no monitoring of inmates on medical furlough. Id.; Thornell Aff. ¶ 70.
In mid-March 2020, as part of phase one, the MDOC and Wellpath compiled a list of over 900 incarcerated individuals with conditions considered by the CDC to place them at a higher risk of illness from COVID-19, including asthma, hypertension, chronic lung disease, and other conditions. Thornell Aff. ¶ 62. Some of these more than 900 individuals are incarcerated for violent crimes, and some are currently housed in segregated housing units because they pose a danger to staff and other inmates; release of such individuals would violate the provisions of the SCCP statute which make the program available only to minimum custody inmates. Id. ¶ 68. The MDOC and Wellpath also created a list of inmates whose medical conditions made them a priority for consideration for SCCP transfer. Id. ¶ 62. MDOC’s Classification Department then evaluated every incarcerated individual on these lists—starting with those identified as most at risk—for potential placement SCCP placement. Id. ¶¶ 62-63. Since March 1, 2020, ninety-five individuals have been released via the SCCP, with five returning to MDOC custody for substance
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abuse or other issues. Id. ¶ 63. The MDOC continues to update this list and evaluate
inmates for SCCP transfer. Id. ¶ 62.
Despite urging from advocates, the MDOC has not expanded eligibility for
home confinement to additional groups of incarcerated individuals since the
beginning of the COVID-19 pandemic. Pet. ¶¶ 52-53. The MDOC is using certain
criteria beyond the statutory requirements for SCCP transfer to determine which
reviews should be expedited:
(1) individual’s scheduled release date must be within one year, despite statutory default of eighteen months;
(2) individual is not serving a sentence for a crime committed against a person, although this is not a typical statutory or policy requirement;
(3) individual may not have a criminal history that includes a crime against a person, being a fugitive from justice, or several prior revocations, although these are not typical statutory or policy requirements;
(4) individual must be approved as community custody by MDOC’s classification instrument, though the statute requires only minimumsecurity classification; and
(5) individual’s placement plan must include stable housing, medical services as needed, and treatment or programming services as appropriate, despite the fact that many prisoners get medical care through MaineCare, which is suspended during periods of incarceration.2
See Pet. ¶ 53. MDOC also provides several other factors—such as the individual’s
medical history and current medical conditions, history on probation and SCCP,

2

Petitioners assert that these criteria are being used to determine who is eligible to be released, and that they

are stricter than normal. Id. ¶ 53. Respondents assert that this is not an accurate characterization, and these additional

parameters are merely being used to determine which reviews should be expedited. Thornell Aff. ¶ 64. For the

purposes of this motion for a temporary restraining order, in which Petitioners have the burden of proof, the Court

resolves this conflict in favor of Respondents.

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treatment and programming process, and disciplinary record while incarcerated— that are relevant to the determination whether an individual should be placed via the SCCP. Id. ¶ 54. It is especially important during a pandemic that individuals who are released have an appropriate residence. Thornell Aff. ¶ 67. Homeless shelters are not appropriate because of documented outbreaks of COVID-19 in homeless shelters and because of the impossibility of determining if homeless shelters also house crime victims or other offenders, which the SCCP policy would not allow. Id.
During the process of evaluating inmates for the SCCP, Commissioner Liberty met several times with representatives of the Maine American Civil Liberties Union (ACLU) and provided them with the number of inmates with medical conditions associated with an increased risk from COVID-19. Id. ¶ 69. The Maine ACLU requested that all the more than 900 inmates listed be released on medical furlough. Id.
Petitioners’ experiences suggest that the MDOC may treat the presence of underlying medical conditions as a reason not to release otherwise eligible prisoners. Mr. Denbow’s case worker allegedly told him that “there’s nobody being released because of medical conditions, so you can get that idea right out of your head,” and in opposing his state court habeas petition seeking release from incarceration, as a reason to oppose Mr. Denbow’s petition, the Maine Attorney General’s office cited the fact that while incarcerated, he receives multiple prescription medicines that he would have to find access to if released. Id. ¶¶ 55-56. The Attorney General’s office made the same point about Mr. Ragsdale. Id. ¶ 56.
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The MDOC has also refused to grant expedited review or processing for people who are medically vulnerable. Mr. Ragsdale applied for home confinement over a month ago but did not receive a response until his attorney sent a demand letter. Id. ¶ 57. Mr. Ragsdale then received more paperwork to complete, as well as a notice that there was no guarantee his application would be processed immediately and that limited home investigations were being done at the time. Id. The MDOC has also categorically prohibited using medical furlough to enable medically vulnerable prisoners to physically distance during the COVID-19 pandemic. Id. ¶ 58. The MDOC Director of Classification has stated that MDOC is not using medical furlough to release incarcerated individuals during the COVID-19 pandemic. Id. II. THE PARTIES’ POSITIONS
A. Petitioners’ Motion for Temporary Restraining Order 1. 28 U.S.C. § 2241 is the Proper Procedural Vehicle for Petitioners’ Claims
Petitioners seek a temporary restraining order with four elements: (1) provisional certification of the Class and an order that Respondents
“provide a list of all medically vulnerable prisoners in their custody,” “specifically identifying those who will be released in the next year (the ‘Imminent Release Subclass’), those who are classified as minimum or community security (the ‘Minimum Security Subclass’), and those who are medically vulnerable because of a federally protected disability (the ‘Disability Subclass’);”
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(2) requirement that Respondents “evaluate each Class Member for home confinement, furlough, or another accommodation, or, in the alternative, appointing a Rule 706 expert to complete such evaluations;”
(3) a grant of “enlargement to Class Members to safely physically distance in the community or another appropriate setting;” and
(4) “for any Class Members who remain incarcerated,” a mandate of “compliance with [CDC] guidance including adequate physical distancing and necessary hygiene . . ..”
Pet’rs’ Mot. at 2-3.3 Petitioners assert that “Section 2241 authorizes courts to grant habeas corpus
relief where a person is ‘in custody in violation of the Constitution or laws or treaties of the United States.’” Id. at 9 (quoting 28 U.S.C. § 2241(b)(3)). In Petitioners’ view, “[h]abeas corpus is the appropriate remedy when a petitioner challenges ‘the fact or duration of his confinement’ or seeks a ‘quantum change’ to a less restrictive form of custody.” Id. (quoting Gonzalez-Fuentes v. Molina, 607 F.3d 864, 873 (1st Cir. 2010)). Because “Petitioners and Class Members challenge the fact of their confinement, which, they allege, has ‘become unconstitutional because of the COVID-19 pandemic risk,’” id. (quoting McPherson v. Lamont, No. 3:20cv534 (JBA), 2020 WL 2198279, at *5 (D. Conn. May 6, 2020)), “the habeas remedy applies even if the alleged violation

3

In the Joint Status Report, Petitioners expand their request for relief, seeking, in addition,

“universal testing in the Maine Correctional Center and spot testing of asymptomatic prisoners” at

other facilities, “accommodations to ensure counsel’s access to discuss conditions with members of the

putative class,” and “immediate disclosure of infection control policies implemented by [the M]DOC

and any positive tests of putative class members.” Status Rep. at 3.

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arises from unlawful conditions of confinement.” Id. Petitioners point out that the exhaustion requirement of Section 2241 is prudential and “does not apply when, as here, the state remedy would be futile and the petitioner is likely to suffer an irreparable injury without immediate judicial relief.” Id. at 10.
2. Injunctive Relief Is Necessary to Protect from Risk of Illness or Death
Petitioners discuss each of the four injunctive relief factors. a. Irreparable Harm
Petitioners assert that “[a]n increased risk of serious illness and death constitutes irreparable injury,” and “[a]bsent injunctive relief, Class Members face an increased risk of infection, serious illness, and death from COVID-19. . . . due to impossibility of physical distancing and the absence of other protective measures.” Id. at 11-12. Petitioners assert that “[n]o amount of money could make [them] whole if they suffer illness or die a preventable death while in custody.” Id. at 12.
b. Likelihood of Success on the Merits Petitioners split their evaluation of their likelihood of success on the merits into two sections dealing first with their Eighth Amendment claim and second with their Americans with Disabilities Act (ADA) and Rehabilitation Act claims. Id. at 12.
i. Eighth Amendment Claim Petitioners begin by laying out the “deliberate indifference to serious medical needs” standard for Eighth Amendment claims adopted in Estelle v. Gamble, 429 U.S. 97, 104 (1976). Pet’rs’ Mot. at 12-13. Under the objective “serious medical needs” prong, Petitioners assert that “the risk of infection with COVID-19 represents a
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serious medical need for all prisoners, but especially for Petitioners and Class Members who are medically vulnerable to serious illness or death from the virus.” Id. at 13. With regard to the subjective “deliberate indifference” prong, Petitioners assert that Respondents “have refused to implement adequate physical distancing, provide alcohol-based hand sanitizer, or ensure meaningful testing despite knowing that all are critical to protecting Class Members’ health and preventing the spread of disease.” Id. at 13-14. Additionally, Petitioners state that the MDOC “has refused to transfer Class Members to a location where physical distancing is possible,” and “the impossibility of physical distancing in [M]DOC facilities means that transfer to the community is ‘the only viable measure by which the safety of highly vulnerable inmates can be reasonably assured.’” Id. at 14 (quoting Martinez-Brooks v. Easter, No. 3:20-cv-00569 (MPS), 2020 WL 2405350, at *23 (D. Conn. May 12, 2020)). Specifically, Petitioners assert that the MDOC is refusing to utilize its authority to grant medical furlough to reduce the risks posed by COVID-19 and is implementing its home confinement authority “slow[ly] and inflexibl[y],” applying “stricter-thanusual criteria for home confinement during COVID-19 . . ..” Id. at 14-15. Petitioners conclude this argument by stating that the MDOC “has the tools that it needs to enable physical distancing for medically vulnerable individuals, yet has refused to do so,” constituting “textbook deliberate indifference in violation of the Eighth Amendment.” Id. at 16.
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ii. Americans with Disabilities Act and Rehabilitation Act Claims
Petitioners assert that they and members of the Disabilities Subclass “are likely to succeed in showing that [the M]DOC is engaging in unlawful discrimination under the ADA and Rehabilitation Act by refusing to provide reasonable accommodation—specifically, medical furlough, home confinement, or similar relief— to protect them against the elevated risk of serious illness or death from COVID-19.” Id. at 16. Petitioners state that Maine’s prisons qualify as “public entit[ies]” within the meaning of 42 U.S.C. § 12132, and thus are prohibited from “discriminating against a qualified individual with a disability on the basis of that disability.” Id. Petitioners lay out the standard for claims under the ADA and Rehabilitation Act, id. at 16-17 (quoting Buchanan v. Maine, 469 F.3d 158, 170-71 (1st Cir. 2006)), and then address the elements of that standard.
Petitioners assert that members of the Disability Subclass “have medical conditions that place them at heightened risk of serious illness or death from COVID19” because they have “pre-existing medical conditions that increase risk for COVID19 complications or death . . . all of which are disabilities under federal disability rights laws.” Id. at 17. Next, Petitioners contend that “[b]y refusing to allow Disability Subclass Members to perform physical distancing . . . [the M]DOC excludes them from necessary medical care, rehabilitative programs, and other programs and services ‘by reason of’ their disabilities.” Id. at 18. Petitioners state that “[b]ecause physical distancing is necessary preventive care that [the M]DOC has made unavailable to members, members of the Disability Subclass are denied the benefits
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of basic [M]DOC programs and services,” as well as “the ability to participate on an equal basis in other prison programming and services.” Id. at 19. Finally, Petitioners argue that “[r]elease to the community is a reasonable and necessary accommodation for many members of the Disability Subclass, who require space to physically distance and protect themselves from the virus,” and “by applying stricter-than-usual standards for home confinement during the pandemic and by failing to process applications in a reasonable timeframe, [the M]DOC discriminates against Subclass Members with disabilities who are at heightened risk from the pandemic.” Id. at 1920.
c. Balance of the Equities and the Public Interest Petitioners assert that “[t]he balancing of the equities favors Petitioners and Class Members, who face a heightened risk of serious and potentially permanent illness or death without injunctive relief,” as opposed to Respondents, who “are simply being asked to ensure necessary care that they are constitutionally and statutorily obligated to provide.” Id. at 20. Additionally, “[r]efusing injunctive relief . . . would risk greater community spread of COVID-19—among prisoners, prison staff, and the broader community—a result the State has taken other extraordinary steps to avoid.” Id. B. Respondents’ Opposition Respondents begin by stating that “[a] temporary restraining order, like a preliminary injunction, is ‘an extraordinary and drastic remedy that is never awarded as of right,’” particularly so in this case because “the injunctive relief [Petitioners]
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seek would alter, rather than preserve, the status quo.” Resp’ts’ Opp’n at 10 (quoting Monga v. Nat’l Endowment for Arts, 323 F. Supp. 3d 75, 82 (D. Me. 2018)). Respondents then discuss each of the four injunctive relief factors.
1. Likelihood of Success on the Merits Respondents first discuss the Eighth Amendment, ADA, and Rehabilitation Act claims brought by Petitioners before discussing the prudential exhaustion requirement of 28 U.S.C. § 2241.
a. Eighth Amendment Claim Respondents state that “[a] reasonable response to a known risk negates deliberate indifference, even if harm is not averted, and even a negligent response to a known risk ‘that was colorable and taken in good faith might still be enough to negate deliberate indifference.’” Id. at 11 (footnote omitted) (quoting Burrell v. Hampshire Cty., 307 F.3d 1, 8 (1st Cir. 2002)). Respondents state that, in contrast to Petitioners’ view, “[the] MDOC’s early and expansive response to the virus shows an extraordinarily careful and active approach to trying to protect inmates and staff” and “reflect[s] best practices, not reckless disregard of an excessive risk . . ..” Id. Respondents further argue that, “[e]ven assuming that Petitioners can show a sufficiently grave risk of harm from COVID-19, they cannot show that MDOC officials were deliberately indifferent to that risk” because those officials “are not deliberately indifferent unless they recklessly disregard an excessive risk to inmate health or safety.” Id. at 11-12 (footnote omitted) (citing Farmer v. Brennan, 511 U.S. 825, 839 (1970)). Respondents suggest Petitioners cannot show recklessness here because
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“[the] MDOC’s prevention efforts have been vast and were accomplished early.” Id. at 12.
Respondents attempt to counter Petitioners’ argument that “[the] MDOC has . . . been ‘slow and inflexible’ in considering inmates for SCCP” by differentiating Martinez-Brooks, arguing that unlike in that case, “[the] MDOC has considered for SCCP all of the eligible 900+ inmates in its custody with a medical condition that increases their susceptibility to COVID-19—nearly half of all inmates—making 95 placements so far.” Id. at 13. Additionally, Respondents point out that “[the] MDOC has far less flexibility with regard to home confinement than did the defendants in Martinez-Brooks.” Id.
b. Americans with Disabilities Act Claim Respondents assert that under the ADA, “[d]iscrimination can be established in three ways: (1) disparate treatment, (2) disparate impact—that a government policy neutral on its face ‘falls more harshly on one group than another and cannot be justified by business necessity,’ or (3) failure to accommodate.” Id. at 14 (quoting Nunes v. Mass. Dep’t of Corr., 766 F.3d 136, 145 (1st Cir. 2014)). Respondents claim that “[t]he first and third theory of discrimination require little discussion” as “[t]here is no evidence that [the] MDOC’s COVID-19 policies and practices treat inmates with disabilities less favorably than the non-disabled” and “Petitioners’ demand for ‘reasonable accommodation’ of granting all subclass members SCCP or medical furlough, regardless of eligibility, misconstrues MDOC’s obligation under the ADA, which is to ensure that disabled inmates receive accommodations needed to allow
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them access [to] those programs to the same extent as non-disabled inmates.” Id. at 14-15 (internal citation omitted). With regard to a disparate impact theory, “[w]hile Petitioners cite the increased vulnerability to COVID-19 of individuals with certain medical conditions, that increased vulnerability is not caused by any act of [the] MDOC, or its policies,” and “[i]nstead, [the] MDOC took action to identify inmates with medical conditions that make COVID-19 particularly risky . . ..” Id. at 15. Respondents assert that [the] MDOC’s “actions are justified and do not discriminate against disabled inmates.” Id. at 16.
c. Exhaustion Respondents assert that Petitioners must comply with the statutory exhaustion requirement of 28 U.S.C. § 2254, rather than the judicially-created exhaustion requirement applicable to 28 U.S.C. § 2241, and argue that they have not done so. Id. at 16-17.
2. Irreparable Injury Respondents contend that “[i]t is not enough for a party seeking injunctive relief to demonstrate a ‘possibility’ of irreparable harm; rather, the movant must demonstrate that irreparable harm is ‘likely.’” Id. at 17 (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). They point out that “[t]o date, there have only been four cases of COVID-19 in a single MDOC facility that is considerably less remote than the facility housing Petitioners,” and assert that the MDOC has an “impressive track record in keeping COVID-19 out of the prisons . . ..” Id. at 17-18. Respondents state that “Petitioners ask the Court to ignore U.S. Supreme Court
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precedent mandating deference to State prison officials in managing its prisons and instead issue an injunction consisting of widely varying types of relief that are unmoored from the status quo.” Id. at 18 (footnote omitted). Additionally, Respondents point out that both named petitioners are currently incarcerated in rural Maine with release dates of this summer; Respondents assert that maintaining this status quo “does not show a likelihood of irreparable injury.” Id. at 18-19. Respondents further state that because of the steps the MDOC is taking to prevent spread of COVID-19, Petitioners have not shown likelihood of irreparable harm beyond the speculative. Id. at 19.
3. Balance of Equities and Public Interest Respondents argue that “[w]hen the government is the opposing party, the balance of equities and the public interest merge into a single factor.” Id. In Respondents’ view, “[the] MDOC and the State of Maine as a whole have a compelling interest in having inmates serve the sentence imposed by the judicial system and completing the attendant rehabilitative programs.” Id. Respondents contend that “[i]ndiscriminately releasing [certain] inmates into the community—particularly on unmonitored medical furloughs, as Petitioners propose—would significantly threaten public safety.” Id. Respondents point to the MDOC’s use of the SCCP throughout the pandemic, and argue that "[t]he public interest supports keeping the [SCCP’s] statutory safeguards in place, rather [than] releasing inmates who are either potentially dangerous or who do not have a safe, appropriate place to live.” Id. at 1920.
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C. Petitioners’ Reply Addressing Respondents’ arguments about irreparable harm, Petitioners argue that “even a relatively low risk of death may qualify as ‘irreparable,’ given that ‘practitioners consider even a very low absolute risk of death to be medically unacceptable.’” Pet’rs’ Reply at 3 (quoting Smith v. Aroostook Cty., 376 F. Supp. 3d 146, 162 & n.23 (D. Me. 2019)). Petitioners point out that it is unsurprising there have been no confirmed positive COVID-19 cases at the facility where the named petitioners are housed because “only two prisoners there have been tested to date.” Id. With regard to their Eighth Amendment claim, Petitioners contend that “this case is on all fours with other examples in which courts have ordered emergency injunctive relief to require release from prison in ‘meaningful numbers’ during the COVID-19 pandemic.” Id. Petitioners state that many of the precautionary measures Respondents point to are “unavailable in practice,” and further state that “providing only ‘some treatment’ is no defense when the ‘serious need for greater or more immediate medical attention’ was obvious and nonetheless refused by the prison.” Id. (quoting Perry v. Roy, 782 F.3d 73, 77, 81 (1st Cir. 2015)). Petitioners assert that despite Respondents’ knowledge of the need to maintain social distance, the MDOC “has refused to meaningfully exercise its release authority and instead has pursued an approach that is incomplete in inception and flawed in execution.” Id. at 4. Petitioners further argue that the statutory limitations of home confinement provide no excuse for the MDOC’s refusal to authorize medical furloughs. Id. at 5. Petitioners
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state that “mandating the general availability of medical furlough would not prevent [the M]DOC from weighing specific safety concerns for a particular person.” Id. at 5 n.2.
In response to Respondents’ arguments about Petitioners’ ADA claim, Petitioners contend that Respondents’ focus on eligibility for home confinement or medical furlough is a “red herring,” as “[m]embers of the Disabilities Subclass are eligible for lifesaving medical care (physical distancing) available through medical furlough, absent a specific reason that such an accommodation would not be safe for a specific individual.” Id. at 5. Petitioners argue that “to the extent [the M]DOC has adopted policies narrowing eligibility for medical furlough or home confinement or refusing accommodations to ensure those programs are available for prisoners with disabilities, such policies violate the ADA.” Id. at 6. Petitioners also disagree with Respondents’ position that the fact the MDOC “considered medically vulnerable prisoners for home confinement . . . foreclose[es] any claim of disability discrimination,” as in doing so, the MDOC “funnel[ed] all release claims through” a more onerous process, which had a disparate impact on the Disabilities Subclass. Id.
Petitioners state that Respondents’ argument about public safety “grossly mischaracterizes Petitioners’ request to protect medically vulnerable prisoners using tools within existing [M]DOC authority—and with prisoners remaining subject to M[DOC] oversight and control . . ..” Id. Lastly, Petitioners assert that Respondents “have not rebutted Petitioners’ showing that it would be futile to exhaust state court procedures in seeking emergency relief for members of the proposed class.” Id. at 7.
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III. LEGAL STANDARD “[Injunctive relief] is an extraordinary and drastic remedy that is never
awarded as of right.” Peoples Fed. Sav. Bank v. People’s United Bank, 672 F.3d 1, 89 (1st Cir. 2012) (quoting Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011)). A judge should use his or her authority to grant such injunctive relief “sparingly.” Mass. Coal. of Citizens with Disabilities v. Civil Def. Agency & Office of Emergency Preparedness, 649 F.2d 71, 76 n.7 (1st Cir. 1981); see also Augusta News Co. v. News Am. Publ’g, Inc., 750 F. Supp. 28, 31 (D. Me. 1990) (“Preliminary injunctions must be used sparingly and only in cases where the need for extraordinary equitable relief is clear and plain”).
To determine whether to issue a temporary restraining order, the Court applies the same four-factor analysis used to evaluate a motion for a preliminary injunction. See Alcom, LLC v. Temple, No. 1:20-cv-00152-JAW, 2020 WL 2202443, at *5 (D. Me. May 6, 2020) (citing cases). The four factors are:
(1) the likelihood of success on the merits; (2) the potential for irreparable harm [to the movant] if the injunction is denied; (3) the balance of the relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court’s ruling on the public interest. Esso Standard Oil Co. v. Monroig-Zayas, 445 F.3d 13, 17-18 (1st Cir. 2006) (alteration in original) (quoting Bl(a)ck Tea Soc’y v. City of Bos., 378 F.3d 8, 11 (1st Cir. 2004)). “The party seeking [an injunction] bears the burden of establishing that these four factors weigh in its favor.” Id. at 18. The same is true with respect to a temporary restraining order. Martin, 665 F. Supp. 2d at 22. Ultimately, “trial courts
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have wide discretion in making judgments regarding the appropriateness of such relief.” Francisco Sánchez v. Esso Standard Oil Co., 572 F.3d 1, 14 (1st Cir. 2009). IV. DISCUSSION
The task before the Court on this motion for a temporary restraining order is narrow: to determine whether, at this early stage, Petitioners are entitled to temporary injunctive relief to prevent irreparable harm and serve the public interest.4 The Court analyzes the four factors Petitioners must establish in turn.
A. Likelihood of Success on the Merits “The sine qua non of this four-part inquiry is likelihood of success on the merits: if the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.” New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002); see also Sindicato Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1, 7 (1st Cir. 2012) (confirming that this factor is the “most important part of the preliminary injunction assessment” (quoting Jean v. Mass. State Police, 492 F.3d 24, 27 (1st Cir. 2007))). The Court first discusses exhaustion of state court remedies before analyzing the merits of Petitioners’ Eighth Amendment and ADA and Rehabilitation Act claims.
1. Exhaustion of State Court Remedies One consequence of the COVID-19 pandemic has been considerable litigation to test the status quo in light of marked and rapid change. The dangerous impact of

4

To rule on the motion for TRO, the Court put aside the potentially difficult question of class

certification, but assuming the Court reaches the merits of the motion for preliminary injunction, the

Court will be required to address this issue.

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the novel coronavirus on the nation’s prison system has proven to be fertile ground
for such challenges. In this case, the Plaintiffs elected to file their petition under two
theories: (1) a habeas corpus theory under 28 U.S.C. § 2241 and (2) a disability
discrimination action under the ADA, 42 U.S.C. § 12132, and Rehabilitation Act, 29
U.S.C. § 794. The Court first addresses the exhaustion issue in the context of the
habeas corpus theory of relief.5
This area of federal law is complicated and nuanced. To begin, the Court turns
to recent decisions from the Second Circuit. In Cook v. New York Division of Parole,
321 F.3d 274 (2d Cir. 2003), the Second Circuit “explained that while a person in
federal custody may challenge the execution of his sentence pursuant to § 2241, the
same is not true of a person in state custody . . ..” Dafoe v. Wolcott, No. 20-CV-6269
EAW, 2020 U.S. Dist. LEXIS 91626, at *2 (W.D.N.Y. May 26, 2020). The Cook Court
wrote:
[S]ection 2255, which is the vehicle by which persons in federal custody may assert that their sentence violates the federal Constitution or federal law, is critically narrower than [§] 2254, by which persons in state custody may challenge that custody: A claim [under § 2254] that [a state prisoner] is “in custody” in violation of federal laws is broader than a claim that the imposition of one’s sentence is illegal. A federal due process challenge claiming state incarceration beyond that authorized by a judgment and sentence would fall within this broader category of claims. The plain language of the pertinent statutes indicates, therefore, that a federal prisoner may challenge the imposition, but not the execution, of a sentence under § 2255, while a

5

The Plaintiffs have not filed under 42 U.S.C. § 1983 and, therefore, the Court is not called upon

to address whether a § 1983 theory would be a better fit. The Court assumes that in requesting to be

furloughed or placed on home confinement, the Plaintiffs’ claimed relief represents a “quantum change

in the level of custody.” Gonzalez-Fuentes, 607 F.3d at 873 (1st Cir. 2010); see also Inman v. Austin,

No. 2:15-cv-00267-JAW, 2015 U.S. Dist. LEXIS 117982, at *4 (D. Me. Sept. 3, 2015) (“Plaintiff’s request

for community confinement likely would entail a ‘quantum change in the level of custody,’ meaning

such relief would only be appropriate in the context of a habeas petition, not a civil rights action”)

(quoting Gonzalez-Fuentes, 607 F.3d at 873), aff’d 2015 U.S. Dist. LEXIS 161199 (D. Me. Dec. 2, 2015).

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state prisoner may challenge either the imposition or the execution of a sentence under [§] 2254. Because a federal prisoner cannot challenge the execution of his or her sentence by a motion under [§] 2255, he or she must resort to a [§] 2241 petition to do so. A state prisoner such as [the petitioner], by contrast, not only may, but according to the terms of [§] 2254 must, bring a challenge to the execution of his or her sentence . . . under [§] 2254. A petition under [§] 2241 is therefore unavailable to him. 321 F.3dat 278 (citation omitted). Consistent with Cook, the district courts in the Second Circuit have dismissed state prisoner lawsuits brought in federal court unless the plaintiffs have complied with the hurdles in § 2254. Dafoe, 2020 U.S. Dist. LEXIS 91626; Cobb v. Wolcott, No. 20-CV-496 (JLS), 2020 U.S. Dist. LEXIS 94444 (W.D.N.Y. May 29, 2020) (granting motion to convert § 2241 to a § 2254 petition); Diaz v. Rollins, No. 3:20-CV-00653 (KAD), 2020 U.S. Dist. LEXIS 94036 (D. Conn. May 29, 2020) (converting § 2241 to a § 2254 petition); Llewellyn v. Wolcott, No. 20-CV-498 (JLS), 2020 WL 2525770, at *3 n.6 (W.D.N.Y. May 18, 2020); but see McPherson, 2020 WL 2198279, at *5 (D. Conn. May 6, 2020). If Cook is the law in the First Circuit, the Petitioners, who are state inmates incarcerated pursuant to a judgment of a state court, must bring their claim not under § 2241 but under § 2254. As the Court will explain, if § 2254 applies, the difference between these statutes effects a significant difference for purposes of exhaustion. The Court turns to whether the First Circuit has adopted the Second Circuit’s analysis of the availability of habeas relief in federal court to a state prisoner. In Brennan v. Wall, 100 Fed. App’x 4 (1st Cir. 2004), the First Circuit addressed whether a district court erred by treating a petition for writ of habeas corpus filed by a state
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prisoner under 28 U.S.C. § 2241 as a petition under § 2254 and dismissing it as “nonconforming, successive and untimely,” which were proper grounds for dismissal under § 2254. Id. at 4.
The Brennan Court wrote that a “state habeas petitioner in custody pursuant to the judgment of a state court may not evade the ‘second or successive’ restrictions of § 2244 by bringing his petition under § 2241 rather than § 2254.” Id. The First Circuit quoted the Third Circuit: “‘[B]oth §§ 2241 and 2254 authorize [petitioner’s] challenge to the legality of his continued state custody,’ but allowing him to file his ‘petition in federal court pursuant to § 2241 without reliance on § 2254 would. . . thwart Congressional intent.’” Id. (quoting Coady v. Vaughn. 251 F.3d 480, 484-85 (3d Cir. 2001)). Thus, the First Circuit explained, “a state prisoner in custody pursuant to the judgment of a state court may file a habeas corpus petition, as authorized by § 2241, but he is limited by § 2254.” Id. The Brennan Court concluded that “the district court properly treated Brennan’s petition as having been brought under § 2254, despite Brennan’s attempt to classify his petition as a § 2241 . . . action.” Id. at 5.
During oral argument, the Plaintiffs observed that the Brennan opinion was an unpublished First Circuit decision and therefore not binding on this Court. First Circuit Local Rule 36(c) provides:
While an unpublished opinion of this court may be cited to this court in accordance with Fed. R. App. P. 32.1 and Local Rule 32.1.0, a panel’s decision to issue an unpublished opinion means that the panel sees no precedential value in that opinion.
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FIRST CIR. LOC. R. 36(c). First Circuit Local Rule 32.1.0, however, allows counsel to cite an unpublished opinion and provides that the First Circuit “will consider such dispositions for their persuasive value but not as binding precedent.” Thus, although the Plaintiffs are correct about the binding impact of Brennan, the Court acknowledges Brennan as the considered judgment of a panel of the Court of Appeals for the First Circuit.
Unlike Brennan, the First Circuit’s next opinion on this issue, GonzalezFuentes, is a published opinion and binding on this Court. In Gonzalez-Fuentes, the plaintiffs, who were inmates in the commonwealth of Puerto Rico, filed a federal habeas corpus petition under 28 U.S.C. § 2241; the First Circuit observed that “§ 2254 ultimately governs the relief that they seek.” 607 F.3d at 875 n.9. The GonzalezFuentes Court wrote:
Section 2241, which does not contain many of the hurdles that § 2254 places before habeas petitioners, may be used to attack the manner in which a sentence is executed, as opposed to the sentence itself. Yet even if the substance of the challenge here could theoretically support jurisdiction under § 2241, the majority view is that prisoners in state custody are required to comply with all the requirements laid out in § 2254 whenever they wish to challenge their custodial status, no matter what statutory label the prisoner uses. To do otherwise would thwart Congress's intent in passing AEDPA. Id. (citations omitted). The First Circuit discussed Brennan, noting that “We previously adopted the majority position in an unpublished decision and we see no reason to abandon it here.” Id. (citing Brennan, 100 Fed. App’x at 4-5). Finally, when addressing the same issue, district courts within the First Circuit have accepted both Gonzalez-Fuentes and Brennan as authoritative. Cruz-
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Rivera v. O’Brien, Civil No. 16-1429 (ADC), 2019 U.S. Dist. LEXIS 20983, at *3-4 (D.P.R. Feb. 5, 2019); Mercer v. Joyce, No. 2:14-cv-00531-JDL, 2015 U.S. Dist. LEXIS 5826, *1 (D. Me. Jan. 16, 2015), aff’d 2015 U.S. Dist. LEXIS 21293 (D. Me. Feb. 20, 2015) (citing only Gonzalez-Fuentes); Murray v. Bledsoe, Civil Action Nos. 10-11019GAO, 11-10905-GAO, 2012 U.S. Dist. LEXIS 128591, at *4-5 (D. Mass. Sept. 11, 2012); Dionne v. Suffolk Cty. Sheriff Dep’t, Civil Action No. 12-11319, 2012 U.S. Dist. LEXIS 114200, at *4 n.2 (D. Mass. Aug. 14, 2012).
At oral argument, the Plaintiffs maintained that they had a right to proceed under § 2241, not § 2254.6 But be that as it may, once the Court applies the statutory requirements of § 2254 to Petitioners’ § 2241 claims, the difference is in number only. One hurdle imposed by § 2254 is that relief is not available unless “the applicant has exhausted the remedies available in the courts of the State.” Cruz-Rivera, 2019 U.S. Dist. LEXIS 20983, at *4 (quoting 28 U.S.C. § 2254(b)(1)); see also Higgins v. State of

6

Also at oral argument, Petitioners discussed the possibility the Court might proceed under the

All Writs Act, 28 U.S.C. § 1651. Once again, Brennan suggests that such a path is not available. The

First Circuit quoted the Supreme Court’s statement in Carlisle v. United States, 517 U.S. 416 (1996)

that “[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered

by statute. Where a statute specifically addresses the particular issue at hand, it is that authority,

and not the All Writs Act, that is controlling.” Brennan, 100 Fed. App’x at 5 (quoting Carlisle, 517

U.S. at 429). The Brennan Court went on to say that “because Brennan is in custody pursuant to the

judgment of a state court, his request for relief is governed by § 2254. Because a § 2254 petition is

available to him, a writ under § 1651 is not.” Id.

Similarly, in United States v. Barrett, 178 F.3d 34, 56 (1st Cir. 1999), the First Circuit quoted

with approval the Seventh Circuit’s decision in In re Davenport, 147 F.3d 605 (7th Cir. 1998), in which

that Court stated “[i]f Congress has forbidden federal prisoners to proceed under 2241 even when 2255

is closed to them[,] then it would be senseless to suppose that Congress permitted them to pass through

the closed door simply by changing the number 2241 to 1651 on their motions,” and further stated that

“[t]he scope of relief obtainable under the All Writs Act is narrowed when a statute governing a

particular issue [such as § 2254] is enacted.” Barrett, 178 F.3d at 56 (quoting Davenport, 147 F.3d at

608). Here, Petitioners assert that their requested relief is available to them under § 2241 or § 2254.

The relief they seek constitutes “a classic habeas corpus scenario, squarely within the heartland carved

out by Congress in” § 2241 and § 2254. Trenkler v. United States, 536 F.3d 85, 97 (1st Cir. 2008).

The Court does not view the All Writs Act as applying to Petitioners’ claims.

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Rhode Island, 187 F.3d 622, 1998 U.S. App. LEXIS 26084, at *1 (1st Cir. 1998) (per
curiam) (unpublished table decision) (“A § 2241 habeas petition must exhaust his
available state court remedies”). The United States Supreme Court addressed this
exhaustion requirement in O’Sullivan v. Boerckel, 526 U.S. 838 (1999):
Section 2254(c) requires only that state prisoners give state courts a fair opportunity to act on their claims. See Castille v. Peoples, [489 U.S. 346,] 351 [1989]; Picard v. Connor, 404 U.S. 270, [275-76] (1971). State courts, like federal courts, are obliged to enforce federal law. Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief. Rose v. Lundy, 455 U.S. 509, [515-516] (1982); Darr v. Burford, 339 U.S. 200, [204] (1950).
Id. at 844. In Scarpa v. Dubois, 38 F.3d 1 (1st Cir. 1994), the First Circuit wrote:
In Gagne v. Fair, 835 F.2d 6, 7 (1st Cir. 1987), we catalogued four ways in which the requirement of fair presentment may be fulfilled: “1) citing a specific provision of the Constitution; 2) presenting the substance of a federal constitutional claim in such manner that it likely alerted the state court to the claim’s federal nature; 3) reliance on federal constitutional precedents; and 4) claiming a particular right specifically guaranteed by the Constitution.” We did not, however, attribute exclusivity to this compendium. In Nadworny [v. Fair], 872 F.2d [1093,] 1099-1100 [(1st Cir. 1989)], we mentioned a fifth possibility, namely, the assertion of a state law claim that is functionally identical to a federal claim.
Id. at 6.
Here, the Court concludes that Mr. Denbow presented the Maine state court
system with substantially the same question he raises here. Rosenthal v. O’Brien,
713 F.3d 676, 688 (1st Cir. 2013) (“petitioner has exhausted state remedies when his
claim is ‘fairly present[ed]’ to the state courts”) (quoting Baldwin v. Reese, 541 U.S.
27, 29 (2004)). On April 13, 2020, Mr. Denbow, through Attorney Bond, his same
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counsel here, filed a petition for post-conviction review in the Maine Superior Court. Pet., Attach. 2, App. – State Court Action. In his state court habeas petition, Mr. Denbow cited as ground two that his continued confinement violates the Eighth Amendment of the United States Constitution due to the enhanced risk of the pandemic and he requests immediate release from custody. Id. at 3, 11-12. Comparing the pending state action with the instant case, the Court concludes that the pending state action meets the requirements in Scarpa. See Gagne, 835 F.2d at 7 (holding that a claim is fairly presented when, inter alia, the state court is likely alerted to the claim's federal nature).
Section 2254 contains two escape hatches from the exhaustion requirement. First, state exhaustion is not required if the federal plaintiff has demonstrated that “there is an absence of available State corrective process” or second, that “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i-ii). Regarding the first issue, the Petitioners observed in their filings and at oral argument that the state post-conviction process in Maine is a criminal, not civil, matter and therefore, the rules of civil procedure do not apply. Pet’rs’ Mot. at 10-11. Consequently, they argue, a class action, such as the one the Petitioners brought here, is not available as a state remedy. Id. In its memorandum, Respondents argued both that the lack of a class action mechanism does not dispense with the exhaustion requirement, Resp’ts’ Opp’n at 17, and at oral argument, that class actions are available in Maine under a common law habeas corpus petition and referred to a common law habeas petition involving a juvenile
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detainee at Long Creek Youth Development Center, indicating that the Petitioners
could have brought a state common law class habeas corpus action.7
The Court does not view Petitioners’ memoranda and argument of counsel as
sufficient to carry their burden for a TRO on whether a class action mechanism is
unavailable in Maine state courts for cases of this sort; and if so, whether the lack of
a class action mechanism dispels the need for state exhaustion. In drawing this
conclusion, the Court emphasizes that it is addressing only the Petitioners’ claim for
emergency relief in the form of a TRO and is not issuing a ruling on the merits of that
issue.
Regarding the second issue, futility, the Court concludes that the Petitioners
have not carried their burden for purposes of issuing a TRO. In Allen v. Attorney
General of the State of Maine, 80 F.3d 569 (1st Cir. 1996), the First Circuit wrote:
If stare decisis looms, that is, if a state’s highest court has ruled unfavorably on a claim involving facts and issues materially identical to those undergirding a federal habeas petition and there is no plausible reason to believe that a replay will persuade the court to reverse its field, then the state judicial process becomes ineffective as a means of protecting the petitioner’s rights. In such circumstances, the federal courts may choose to relieve the petitioner of the obligation to pursue available state appellate remedies as a condition precedent to seeking a federal anodyne.
Id. at 573. Here, the Petitioners initiated their state case in April 2020 and have not
presented the Court with a case from the Maine Supreme Judicial Court that would
lead to the conclusion that the state judicial process is ineffective.

7

The Respondents did not make this point in their opposition memorandum and did not provide the Court with

a citation. In the context of the motion for TRO, the Court accepts Respondents’ representation that the Petitioners

could bring a common law class action in Maine courts, but this issue merits more precision as the case progresses.

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The Petitioners nevertheless argue that Mr. Denbow’s state case meets the futility requirement because the Maine court system is overburdened, especially in coping with the COVIC-19 pandemic. They note that even though Mr. Denbow filed his emergency habeas corpus petition on April 21, 2020, his petition has “languished without a hearing for five weeks . . ..” Pet’r’s Mot. at 10 (emphasis in original). In response, the MDOC states that the “Superior Court is moving forward with Petitioner Denbow’s [Post Conviction Review] petition.” Def.’s Opp’n at 17.
On May 20, 2020, the parties provided the docket sheet in Joseph Denbow v. State of Maine, No. OXFCD-CR-2020-00226. Status Rep., Attach. 2, Docket Record at 1. In addition, the Petitioners supplied copies of several motions and responses, including written argument about whether Mr. Denbow is entitled to bail pending resolution of his state petition for post-conviction review. Pet., Attach. 2, App. – State Court Action.
On April 23, 2020, a justice of the Superior Court entered an order establishing deadlines for the state response, after which the justice directed the Clerk of Court to schedule a conference. Status Rep., Attach. 3, Order Assigning Pet. for Post Conviction Review at 1-3. In a footnote, the justice wrote that “[d]ue to the apparent time-sensitive nature of the petition, the assigned court undoubtedly has the discretion to modify the timelines prescribed by the Maine Rules of Unified Criminal Procedure governing petitions for post-conviction review.” Id. at 1 n.1. The record does not reveal whether the parties requested shortened deadlines. At oral
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argument, the DOC informed the Court that Justice McKeon has been assigned the case.
The Petitioners draw support for their conclusion that further exhaustion would be futile from McPherson, a recent case in the District of Connecticut. In McPherson, a district judge reviewed the impact that the COVID-19 virus has had on the state court system in Connecticut and concluded that the exhaustion requirement should be waived:
Plaintiffs have adequately demonstrated that the state court system is operating at such a diminished capacity that it may not be able to timely respond to a massive volume of emergency habeas petitions—a number potentially in the hundreds or thousands, given the size of the putative class—in the urgent manner that those petitions require. 2020 WL 2198279, at *7. Based on this record, this Court cannot make the same finding about the courts in the state of Maine. The parties in McPherson placed a far more robust record before the district judge than the parties here have presented for and against the TRO. Here, the only information about the status of the courts in the state of Maine is limited to cryptic docket entries and the docketed motions and memoranda. It is a leap on this record to make a finding that the courts in the state system are so overwhelmed that Mr. Denbow’s pending case there is futile.
2. Eighth Amendment Claim “[H]aving stripped [incarcerated individuals] of virtually every means of selfprotection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” Farmer, 511 U.S. at 833. Prison
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officials “must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.’” Id. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). “[N]ot all shortages or failures in care exhibit the intent and harmfulness required to fall within [the] ambit” of the Eighth Amendment. Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014). “[T]o prove an Eighth Amendment violation, a prisoner must satisfy both of two prongs: (1) an objective prong that requires proof of a serious medical need, and (2) a subjective prong that mandates a showing of prison administrators' deliberate indifference to that need.” Id. (citing Estelle, 429 U.S. at 106). The Court addresses each prong in turn.
a. The Objective Prong Respondents state that they do not dispute “that the COVID-19 is a highly contagious virus that puts everyone at risk, but compared to the community, where literally thousands more cases of COVID-19 have been identified, the conditions in MDOC’s facilities do not reflect a level of risk actionable under the Eighth Amendment.” Resp’ts’ Opp’n at 11 n.8. The Respondents acknowledge that while incarcerated, inmates have limited ability to socially distance themselves. See Thornell Aff. ¶¶ 33, 42-43, 48. Depending on the place where an inmate is released, the inmate might well be able to exercise his own agency in limiting his social contact with others; yet, for other inmates, being released to an uncontrolled residence may result in greater exposure to the virus than the controlled space behind the prison walls.
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The Court observes that the partially-developed record reflects that the DOC has taken this pandemic seriously and the actual number of inmates and staff who have tested positive for COVID-19 is remarkably low.8 At the oral argument, the MDOC represented that four individuals tested positive at the MCC and one staff member at Bolduc, in a total prison population of about 1,890 inmates. The virus has been detected at two state correctional institutions and not at the Maine State Prison. The DOC also proffered its three-phase COVID-19 approach, which limited both transfers between and access to its facilities, and established testing protocols in consultation with the MCDC. With that said, the Court takes the Petitioners’ claims about the lack of the ability to maintain social distances in prison, the absence of easy access to alcohol-based sanitizer, and the lack of testing for the virus (except when symptomatic) in institutions other than MCC. With the facts and arguments marshaled on both sides, the Court cannot in this narrow timeframe confidently make findings or draw conclusions without a more substantial record.
b. The Subjective Prong Under the subjective prong, prison officials are liable for conditions of confinement “only if [they] know[] that inmates face a substantial risk of serious harm

8

The Court acknowledges that the MDOC controls who receives a test. On this record, there is no basis to

find that the MDOC is taking a “see-no-evil” approach, but the lack of testing in facilities other than the MCC makes

it difficult to conduct an objective evaluation of the success of the MDOC’s efforts. The Court understands

Respondents’ argument that the MDOC is acting on the guidance of the MCDC, see Resp’ts’ Opp’n at 5; however,

the Court regards this testing opacity as a looming problem for resolution of the claims in this case. Furthermore, it

is not clear why the MCDC has recommended somewhat limited testing, especially as one of the most confounding

and dangerous aspects of COVID-19 is the rapid onset of high contagiousness during an initial period of

asymptomatology. The Court does not know whether the MCDC’s guidance to the MDOC is resource-based, data-

based, caused by issues unique to the prison system, or some combination of factors. The Court anticipates that this

will become clear as the case develops.

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and disregard[] that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847. “For purposes of this subjective prong, deliberate indifference ‘defines a narrow band of conduct’ and requires evidence that the failure in treatment was purposeful.” Kosilek, 774 F.3d at 83 (internal citation omitted) (quoting Feeney v. Corr. Med. Servs. Inc., 464 F.3d 158, 162 (1st Cir. 2006)). “While deliberate indifference may also be exhibited by a ‘wanton disregard’ to a prisoner’s needs, such disregard must be akin to criminal recklessness, requiring consciousness of ‘impending harm, easily preventable.’” Id. (internal citations and quotations omitted). “‘[W]ide-ranging deference’ is accorded to prison administrators ‘in the adoption and execution of policies and practices that in their judgment are needed to . . . maintain institutional security,’” and “[i]n consequence, even a denial of care may not amount to an Eighth Amendment violation if that decision is based in legitimate concerns regarding prisoner safety and institutional security.” Id. (alterations in original) (quoting Whitley v. Albers, 475 U.S. 312, 321-22 (1986)).
Petitioners’ likelihood of success on the merits here turns entirely on factual questions the Court does not yet have enough information to resolve. Respondents lay out, as a matter of policy, a very reasonable course of action taken by the MDOC. Aware of the threat posed by COVID-19, the MDOC has consulted early and often with the MCDC and developed new policies and regulations that aim to reduce contact between inmates, increase the cleanliness of its facilities, and curtail the mobility of the virus into and between facilities. Resp’ts’ Opp’n at 12. They promptly expedited review of those inmates they think are most likely to receive SCCP
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placement and, once those reviews were finished, proceeded to reviews of other inmates. Id. at 5-6. They state that it would harm public safety and violate the SCCP statute to release certain individuals under the SCCP, no matter their level of medical vulnerability to COVID-19, and further argue that medical furlough is not an option because “[t]here is no monitoring of inmates on medical furlough.” Id. at 67. Respondents point out that despite the rapid growth in COVID-19 cases across the country, “[the] MDOC has found only four confirmed inmate cases, all at one facility . . ..” Id. at 12.
Based on this view of the situation, Respondents state that “Petitioners cannot show that [the] MDOC’s response to COVID-19 and the measures [the] MDOC has put in place to protect inmates and staff were reckless,” arguing that “[t]hese proactive and serious steps show a robust response, not deliberate indifference.” Id. Respondents differentiate their response from cases relied on by Petitioners. They point out that in Wilson v. Williams, No. 4:20-cv-00794, 2020 WL 1940882, at *2 (N.D. Ohio Apr. 22, 2020), the facility in question only conducted seventy-five total tests, Resp’ts’ Opp’n at 12 n.9, and state that unlike the facility in Martinez-Brooks, which considered “only 159 of roughly 1,000 inmates for home confinement” and “approved only 21,” Respondents have “considered for SCCP all of the eligible 900+ inmates in [the MDOC’s] custody with a medical condition that increases their susceptibility to COVID-19—nearly half of all inmates—making 95 placements so far.”9 Id. at 13.

9

While the Court first interpreted Respondents’ argument to be that it had made ninety-five

SCCP placements during the COVID-19 pandemic based on medical need, the Court discovered at oral

argument that this interpretation is not correct. The Court remains unclear as to how many—if any—

SCCP placements have been made based on susceptibility to COVID-19.

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They also note that “[the] MDOC has far less flexibility with regard to home confinement than did the defendants in Martinez-Brooks.” Id.
By contrast, Petitioners contend that many of the measures put in place by the MDOC to combat COVID-19 are unavailable in practice, and Petitioners are not able to physically distance themselves or appropriately protect against COVID-19 within the confines of their carceral setting. Pet’rs’ Mot. at 14; Pet’rs’ Reply at 3. They argue that “the impossibility of physical distancing in [the M]DOC facilities means that transfer to the community is ‘the only viable measure by which the safety of highly vulnerable inmates can be reasonably assured.’” Pet’rs’ Mot. at 14 (quoting MartinezBrooks, 2020 WL 2405350, at *23). They contend that the MDOC’s “outright refus[al] to provide medical furlough during the deadly COVID-19 pandemic” and its “slow and inflexible implementation of its home confinement authority is deliberately indifferent to the rights of Class Members” and that the MDOC is in fact treating individuals’ preexisting medical conditions as a factor weighing against release. Id. at 15.
Both sides, in other words, have painted quite different pictures of what is happening behind the walls of MDOC facilities. At this juncture, the Court has no reason to credit one picture over the other. Assuming Petitioners’ assertions about on-the-ground life at MDOC facilities are true—they are not able to socially distance; masks, hand sanitizer, and cleaning of shared spaces are limited or unavailable on a practical level; inmates are scared to report symptoms of COVID-19; and the MDOC is considering preexisting medical conditions as a negative in making SCCP
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decisions—they may well have made out an Eighth Amendment claim. Assuming Respondents’ assertions are true, Petitioners’ claim is highly likely to fail.10 The Court thus cannot say that Petitioners have established a likelihood of success on the merits with respect to the subjective prong of their Eighth Amendment claim.
3. Federal Disability Rights Law Claims Title II of the ADA requires that “no qualified individual with a disability shall, by reasons of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. “Federal regulations implementing Title II require public entities to ‘make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid

10

The Court notes the wide delta between the level of care Respondents assert they are taking

at MDOC facilities and the record in Martinez-Brooks. In that case, the Court was able to make

findings that “true social distancing appears to be unachievable at” the facility in question and that

the implementation of the home confinement program at the facility had “been slow and inflexible”

and relied on criteria that “evidence[d] a disregard for the seriousness of the health risk faced by

vulnerable inmates.” Martinez-Brooks, 2020 WL 2405350, at *5, *22. These criteria categorically

disqualified from home confinement “any inmate with an incident report in the past 12 months—no

matter the seriousness,” and the facility had reviewed only sixteen percent of its population for possible

home confinement. Id. at *22.

In this case, while Respondents appear to acknowledge the roadblocks incarceration poses to

social distancing, there is reason to believe that the containment procedures the MDOC has put in

place have largely kept COVID-19 at bay (at least for now), and—in contrast to Martinez-Brooks,

wherein thirty-four percent of inmates tested for COVID-19 tested positive and the Court was able to

conclude, based on the amount of testing that had taken place, that this represented a likely

undercount of the number of COVID-19 infections—a significant portion of the MDOC incarcerated

population has been tested and only four inmates have tested positive. Furthermore, while Petitioners

assert that the MDOC is not properly considering COVID-19 risk or utilizing medical furlough, it is

clear that Respondents have fast-tracked SCCP consideration and conducted a considerable number

of reviews.

Again, there is the very real possibility that Petitioners’ claims about the MDOC COVID-19

response will be borne out. Such a factual development could greatly alter the Court’s analysis. But

the record currently before the Court, unlike the record in Martinez-Brooks, is not enough to support

a finding of the sort of “wanton disregard” necessary to establish deliberate indifference in this context.

Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011).

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discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service,
program, or activity.’” Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 283 (1st Cir. 2006) (quoting 28 C.F.R. § 35.130(b)(7)). The Rehabilitation Act requires that “[n]o
otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . ..” 29 U.S.C. § 794(a).
For Petitioners to successfully make out a claim against a public entity under
the ADA and Rehabilitation Act, they must establish: (1) that [they are] qualified individual[s] with a disability; (2) that [they were] excluded from participating in, or denied the benefits of a public entity's services, programs, or activities or w[ere] otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of [their] disability.
Kiman, 451 F.3d at 283 (quoting Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000)). Respondents do not appear to contest that Petitioners are qualified
individuals with disabilities. Petitioners may establish discrimination in three ways: First, a plaintiff can assert disparate treatment on account of disability, i.e., that the disability actually motivated the defendant's challenged adverse conduct. . . . Alternatively, in an appropriate case a plaintiff can claim that a government policy, though neutral on its face, falls more harshly on one group than another and cannot be justified by business necessity. . . . Finally, a plaintiff can pursue a third path, claiming that a public entity has refused to affirmatively accommodate his or her disability where such accommodation was needed to provide meaningful access to a public service.
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Nunes, 766 F.3d at 144-45 (some alterations in original) (internal citation omitted) (quoting Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003); Henrietta D. v. Bloomberg, 331 F.3d 261, 273-76 (2d Cir. 2003)).
Petitioners pursue this third theory of failure to provide a reasonable accommodation.11 Pet’rs’ Mot. at 16. They allege that, “[b]y refusing to allow [them] to perform physical distancing—in the prison, the community, or elsewhere—[the M]DOC excludes them from necessary medical care, rehabilitative programs, and other programs and services ‘by reason of’ their disabilities.” Id. at 18. Respondents argue, without presenting caselaw, that Petitioners’ theory “misconstrues [the] MDOC’s obligation under the ADA, which is to ensure that disabled inmates receive accommodations needed to allow them to access [the SCCP and medical furlough] to the same extent as non-disabled inmates.” Resp’ts’ Opp’n at 15.
As a preliminary matter, the Court is not convinced by Respondent’s argument. In the Court’s view, adequate social distancing necessary to combat COVID-19 is a service provided to incarcerated individuals by the MDOC. As the United States Supreme Court said in Farmer, incarcerated individuals are stripped “of virtually every means of self-protection and foreclosed [from] access to outside aid . . ..” 511

11

In their reply, Petitioners also make a disparate treatment argument. Pet’rs’ Reply at 6.

Petitioners’ choice to include this argument for the first time in their reply brief violates District of

Maine Local Rule 7(c) and the Court deems it waived for the purposes of this motion as a matter of

fairness.

The Petitioners appear to bring their ADA and Rehabilitation Act claims as part of their

habeas petition, rather than as independent statutory claims. See Pet. at 47-48. To the extent at least

that Petitioners are seeking a quantum change in the fact of their confinement, the Court believes this

is likely the correct procedural vehicle. See Bogovich v. Sandoval, 189 F.3d 999, 1002 (9th Cir. 1999)

(“There is no reason to believe that ADA claims should be treated any differently than § 1983 claims

when examining whether a prisoner's case should have been brought under habeas corpus. Regardless

of the type of claim asserted, the traditional purposes of habeas corpus must be preserved”).

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U.S. at 833. Individuals incarcerated at MDOC facilities are only able to socially distance to the extent that MDOC facilities make social distancing possible. If, by reason of a disability, a medically vulnerable inmate needs more social distancing than others, the Court does not immediately see why providing some measure of such additional social distance would not be a reasonable accommodation within the meaning of the ADA. At the same time, the record does not contain enough information about Maine’s correctional facilities for the Court to make any reasonable assessments on this issue. It may be true that some enhanced social distancing for a limited number of inmates may be feasible in some facilities and not in others.
That aside, the same factual issues that the Court identified with regard to the Eighth Amendment claim are also relevant to the disability claims. It may, in fact, be true—as Petitioners’ assert—that it is effectively impossible to physically distance at MDOC facilities and that for the medically vulnerable, physical distancing is medically necessary during the COVID-19 pandemic. It may also be true that the MDOC is disadvantaging those with preexisting medical conditions in conducting its SCCP review. But the degree to which release of incarcerated individuals constitutes a “reasonable accommodation” within the meaning of the ADA and the Rehabilitation Act depends on the resolution of these factual questions.12 The Court thus cannot

12

The Court is somewhat skeptical that Petitioners will ultimately be able to show that release for all or even

most members of what they term the Disability Subclass without giving significant discretion to the MDOC to weigh

public safety concerns is a reasonable accommodation that has been denied. “The reasonableness requirement calls

for a factbound balancing of the benefits that would accrue to the handicapped individual against the burdens that the

accommodation would entail.” Summers v. City of Fitchburg, 940 F.3d 133, 139 (1st Cir. 2019). “Typically, ‘an

accommodation is “reasonable” when it imposes no “fundamental alteration in the nature of the program” or “undue

financial and administrative burdens”’ on the defendant.” Id. at 140 (alteration in original) (quoting Batista v.

Cooperativa de Vivienda Jardines de San Ignacio, 776 F.3d 38, 43 (1st Cir. 2015)). It is difficult for the Court to

imagine a greater burden that could be imposed on Respondents than the sudden release of a large portion of the

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say whether Petitioners have established a substantial likelihood of success on the merits with regard to their ADA and Rehabilitation Act claims.
B. Irreparable Harm Irreparable injury is “an injury that cannot adequately be compensated for either by a later-issued . . . injunction, after a full adjudication on the merits, or by a later-issued damages remedy.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005). Petitioners must “demonstrate that irreparable injury is likely in the absence of an injunction,” not merely that it is a possibility. Winter, 555 U.S. at 375 (emphasis in original); see also Canadian Nat’l Ry. Co. v. Montreal, Me. & Atl. Ry., Inc., 786 F. Supp. 2d 398, 432 (D. Me. 2011) (“proof of a mere possibility of injury is insufficient to justify an injunction”). Once again, the Court views its inquiry as turning on as-yet unresolved factual questions. If Petitioners are correct in the picture they paint of COVID-19 response at MDOC facilities, then they have established a reasonable likelihood of irreparable harm, in that there would be a reasonable likelihood that the virus will “infiltrate[] the prisons,” presenting “a high risk of infection, serious illness, and death due to impossibility of physical distancing and the absence of other protective measures.” Pet’rs’ Mot. at 12. But the Court is inclined to agree with Respondents that until lingering evidentiary questions can be resolved, “Petitioners have not shown that
MDOC’s incarcerated population with the expectation that they continue under the monitoring of the MDOC. “The statutes entitle [the disabled] to reasonable accommodations, not to optimal ones finely tuned to [their] preferences.” Nunes, 766 F.3d at 146. It seems unlikely to the Court that there is no accommodation short of releasing an as-yetunidentified number of individuals with widely differing histories of criminality that would serve to address Petitioners’ disabilities.
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remaining in place creates a likelihood of irreparable injury” beyond the speculative. Resp’ts’ Opp’n at 19.
Furthermore, the Court is cognizant of the limitation of its expertise relative to the MCDC and the MDOC. These two agencies employ subject matter experts who have formed a unified policy. The Court does not discount the possibility that it will, on a more fully developed record, order injunctive relief that alters that plan. But prior to the development of that record, and without evidence of increasing incidence of COVID-19 at MDOC facilities, the Court is reluctant to insert itself and upset the status quo in ways that might ultimately be more harmful than helpful. See Simmons v. Galvin, 575 F.3d 24, 33 (1st Cir. 2009) (“The state has . . . a strong interest in how its correctional systems are maintained and run” (citing Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973))).
C. Balance of the Equities and the Public Interest Respondents assert that “[the] MDOC and the State of Maine as a whole have a compelling interest in having inmates serve the sentence imposed by the judicial system and completing the attendant rehabilitative programs.” Resp’ts’ Opp’n at 19. They assert that “[c]ertain putative class members are convicted of serious and violent crimes, and others are segregated from the general prison population because they pose a safety risk,” and therefore “[i]ndiscriminately releasing these inmates into the community . . . would significantly threaten public safety.” Id. Petitioners argue that this position “grossly mischaracterizes Petitioners’ request to protect medically vulnerable prisoners using tools within existing [M]DOC authority—and
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with prisoners remaining subject to [M]DOC oversight and control . . ..” Pet’rs’ Reply at 6. The Court is inclined to agree with Petitioners; nowhere do they suggest that the medically vulnerable individuals they seek to represent should be released “indiscriminately” or without monitoring.
By contrast, Petitioners assert “[r]efusing injunctive relief . . . would risk greater community spread of COVID-19—among prisoners, prison staff, and the broader community—a result the State has taken other extraordinary steps to avoid.” Pet’rs’ Mot. at 20. Furthermore, they assert that they “face a heightened risk of serious and potentially permanent illness or death without injunctive relief,” whereas Respondents “are simply being asked to ensure necessary care that they are constitutionally and statutorily obligated to provide.” Id.
To accept the Petitioners’ arguments that the MDOC should take a hard and quick look at its implementation of the SCCP in light of the COVID-19 pandemic to assess whether inmates, especially vulnerable inmates, could be released from incarceration does not mean that MDOC should simply open the prison gates and indiscriminately release vulnerable inmates before they have served their imposed sentences. The MDOC’s exercise of its authority under the SCCP is substantially constrained by state law and regulation. See 34-A M.R.S. § 3036-A; 03-201 C.M.R. ch. 10, subs. 27.2.13 The MDOC must satisfy itself that it is not only complying with

13

The Petitioners urge the Court to conclude that the MDOC should use the medical furlough

provision of Maine law, 34-A M.R.S. § 3035(2)(C), instead of its standard furlough program, to release

vulnerable inmates. This subsection states that a “[f]urlough may be granted for the obtaining of

medical services for a period longer than 10 days if medically required.” Id. Without resolving this

issue, the Court is skeptical that releasing a vulnerable inmate who has not tested positive for the

COVID-19 virus and who is asymptomatic can properly be considered a release to obtain medical

services.

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state law, but also that it is protecting the public from harm, including contacting the victims of released individuals’ crimes. For example, before releasing an inmate from prison into an outside residential setting, it is imperative that the inmate does not carry COVID-19 into the community to which the inmate is returning. In addition, for many inmates, a successful reentry into society must be carefully planned and monitored; the MDOC must be assured that the prospective residential placement is proper from a health and safety viewpoint and that the state Probation Office is able to monitor the released inmates, to insure they maintain substance abuse treatment, have access to medical and social services, and explore the possibility of employment, and enforce similar furlough requirements. At a minimum, the MDOC must assure itself that the risk to the inmate outside the prison is less than the risk inside. To suggest that the MDOC should administer the SCCP with a sense of urgency given the pandemic is not to suggest that the MDOC should not administer the program at all.
The Court views these factors in a precarious balance based on the record before it. It may be that, once the record is more fully developed, the Court could craft an order of injunctive relief that protects public safety and maintains the ability
The Petitioners also cite 28 U.S.C. § 2243’s language that directs courts to provide habeas relief “as law and justice require.” The Court is not clear whether the Petitioners are contending that this section provides the Court with an independent basis to order relief free from the procedural hurdles of § 2254. If so, the Court disagrees. Hill v. Dailey, 534 F. Supp. 2d 746, 748-49 n.1 (W.D. Ky. 2008) (citing Felker v. Turpin, 518 U.S. 651 (1996)). If the Petitioners are only making the point that this provision emphasizes the Court’s “broad equitable powers and authority,” Pet’rs’ Reply at 7, to order injunctive relief in habeas corpus cases, the Court agrees.
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of the MDOC to administer its prisons, and yet responds to the legitimate fears of its most vulnerable inmates caused by the COVID-19 pandemic.14
D. Summary In ruling on this motion, the Court is reminded of Justice Kennedy’s quotation in Davis v. Ayala that “[t]he degree of civilization in a society can be judged by entering its prisons.” Davis v. Ayala, 576 U.S. 257, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring) (quoting THE YALE BOOK OF QUOTATIONS 210 (F. Shapiro ed. 2006)). The Court suspects that this sentiment is shared by both the Petitioners and the Respondents and both seek to have the Maine prison system meet the challenge implicit in Justice Kennedy’s quotation. This case represents the rare one, in the Court’s experience, where both sides of the litigation are striving for the same result—in this case, the continued health and safety of the incarcerated population in the state of Maine—and the gulf between them stems only from their very different views about what is necessary, advisable, and feasible to achieve that result. The Court has heard and considered the concerns raised by Petitioners about Respondents’ COVID-19 response. To dismiss the motion for a TRO does not diminish or resolve the Petitioners’ concerns. But the Court is not prepared—prior to an evidentiary hearing and without a showing that disaster is truly imminent—to substitute its judgment for that of the MDOC and Commissioner Liberty when it comes to administration of their facilities. The Court plans on moving

14

The Petitioners stress that they are seeking relief only while the COVID-19 pandemic persists.

But no one seems to know how long that might be: whether and when an effective vaccine will be

developed and distributed, whether and when more effective treatments will be found and made

available, and whether and when there will be a breakpoint in herd immunity all remain unanswered.

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the Petitioners’ request for a preliminary injunction in this case to resolution as swiftly as possible—an effort in which the Court expects the parties will assist. Given the relatively low number of confirmed cases of COVID-19 in MDOC facilities and what the Court expects will be a rapid resolution of the request for a preliminary injunction, the Court does not see the need for temporary injunctive relief at this time. V. CONCLUSION
The Court DISMISSES without prejudice Joseph A. Denbow and Sean R. Ragsdale’s Motion for Temporary Restraining Order (ECF No. 5). The Court will schedule a telephone conference of counsel to discuss the next steps.
SO ORDERED. /s/ John A. Woodcock, Jr. JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
Dated this 8th day of June, 2020
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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

JOSEPH A. DENBOW et al., Petitioners,
v. MAINE DEPARTMENT OF CORRECTIONS et al.,
Respondents.

Docket No. 1:20-cv-00175-JAW
RESPONDENTS’ MOTION TO DISMISS AND INCORPORATED MEMORANDUM OF LAW

Motion to Dismiss Under Rule 5 of the Rules Governing § 2254 Cases (the “Habeas Rules”),1 Respondents Maine Department of Corrections and Commissioner Randall Liberty (together, “MDOC”) move to dismiss the petition for the writ of habeas corpus filed by state inmates Joseph Denbow and Sean Ragsdale (“Petitioners”) on behalf of the putative classes, on the basis that Petitioners failed to exhaust administrative remedies as required by 28 U.S.C. § 2254(b) and (c).
Introduction Section 2254 provides “a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.” Rhines v. Weber, 544 U.S. 267, 276-77 (2005) (quoting Rose v. Lundy, 455 U.S. 509, 520 (1982)). Ignoring this instruction is “fatal to the prosecution of a habeas petition.” Jackson v. Coalter, 337 F.3d 74, 85-86 (1st Cir. 2003) (cleaned up); Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988).

1 Should the Court conclude that the Habeas Rules are inapplicable, Respondents alternatively move under Fed. R. Civ. P. 12(b)(6).
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There is no question that the two named petitioners here have not yet exhausted state-court remedies. Section 2254(c) provides that petitioners “shall not be deemed to have exhausted . . . if [they have] the right under the law of the State to raise, by any available procedure, the question presented.” Here, both men could bring a state court petition for post-conviction review (“PCR”), and in fact, Mr. Denbow has. That action is proceeding expeditiously, with a bail hearing set for June 24, 2020. Other state-court remedies are potentially available too: Petitioners could have filed a petition for a state-law writ of habeas corpus under 14 M.R.S. § 5501, a request for judicial review of a final agency action under 5 M.R.S. § 11001 and M.R. Civ. P. 80C, or a motion to correct their sentences under M.R.U. Crim. P. 35. These “available procedures” mean that Petitioners have not exhausted their claims. 28 U.S.C. § 2254(c).
Nor can Petitioners meet their heavy burden of establishing either of the two statutory exceptions to exhaustion: that “there is an absence of available State corrective process” or that “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i) & (ii). Instead, the evidence shows that the Superior Court in Petitioner Denbow’s case is moving forward, that the state courts have been available throughout the pandemic to expeditiously hear emergency cases and are increasingly back to normal operations, and that no state inmates besides Denbow have even tried to present COVID-19-related claims in state PCR proceedings. Petitioners thus cannot show that exhaustion is excused because state processes are “absent” or “ineffective.”
Because Petitioners cannot meet their burden of showing that these state court procedures are unavailable, this Court should dismiss the petition under § 2254(b) and (c). In addition, given that the Superior Court is presently adjudicating Mr. Denbow’s nearly identical petition for post-
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conviction review, this Court should abstain from hearing his case under Younger v. Harris, 401 U.S. 37, 45 (1971), and should dismiss Petitioner Denbow from the suit.
Facts I. Background.
Petitioners Denbow and Ragsdale brought a putative class habeas petition on May 15, 2020, on behalf of a class of “medically vulnerable” inmates and three subclasses. (Pet. ¶¶ 63, 67 (ECF No. 1).) Petitioners moved for a TRO or preliminary injunction on May 18, 2020. (ECF No. 5.) Mr. Denbow is serving a sentence for two counts of operating after habitual offender revocation and aggravated forgery,2 and he is due to be released at the end of his sentence on August 28, 2020.3 (State’s Resp. to Pet. 1 p. 1 (Ex. A); Prisoner/Probationer Search for Mr. Denbow, https:// www1.maine.gov/cgi-bin/online/mdoc/search-and-deposit/detail.pl?mdocnumber1=33030 (last viewed June 20, 2020).) Mr. Ragsdale is serving a sentence for two counts of aggravated trafficking of scheduled drugs, and is due to be released at the end of his sentence on July 13, 2020. (Prisoner/Probationer Search for Mr. Ragsdale, https://www1.maine.gov/cgi-bin/online/mdoc/ search-and-deposit/detail.pl?mdoc_number1=126457 (last viewed June 20, 2020).)
2 The petition claims that Mr. Denbow is in prison for aggravated forgery because he “initially g[ave] the traffic officer his brother’s name instead of his own” during a traffic stop. (Pet. ¶ 14.) But this description of his offense not consistent with a conviction for aggravated forgery, which requires falsely making, completing, endorsing, or altering one of several kinds of “written instrument[,]” including records “to be filed in or with a public office[.]” 17-A M.R.S. § 702(1).
3 These dates are the earliest possible release dates, due to those inmates’ monthly good time credits, which they may or may not earn for the time remaining on their sentence, based on disciplinary actions and other factors.
3

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II. The Superior Court Is Adjudicating Petitioner Denbow’s Petition for PostConviction Review.
On April 13, 2020, Petitioner Denbow, through the same counsel representing him in this case (ACLU of Maine), filed an Emergency Petition for Post-Conviction Review (“PCR”) by emailing it to the Oxford County Clerks’ Office under PMO-SJC-3. (Ex. B, Pet.) Petitioner Denbow also filed by e-mail a supporting memorandum of law, as well as an Emergency Motion for Release on Bail and Leave to File an Unsworn Petition. (Ex. C, Joseph Denbow v. State of Maine, Docket Record, OXFCD-CR-2020-00226; Ex. D, Mem. of Law; Ex. E, Mot. for Release on Bail.)4 In his state court petition, Denbow makes the same claims he is making in this action, but under both the U.S. and Maine Constitutions. (Ex. B at 3; Ex D. at 2-8.) He asserts that his criminal sentence is unconstitutionally disproportionate to his offense and that his continued incarceration constitutes cruel and unusual punishment due to the threat of COVID-19. (Id.) In an order dated April 23, 2020, Justice William Anderson of the Maine Superior Court ordered the State to file a response to the petition. (Ex. F.) Also on April 23, Petitioner Denbow filed an Emergency Motion for Hearing on Post-Conviction Bail (for which briefing was complete on April 29). (Ex. G, H, and I.) Chief Justice Mullen assigned the petition to Justice Cole on April 24, 2020. (Ex. J.) The parties received these orders on May 18, due to a clerical error. (Ex. K, emails from Oxford County Superior Court Clerk Michelle Racine.) 5 On May 19, Chief Justice Mullen assigned Justice McKeon to handle the proceedings. (Ex. L.)
4 In contrast with Fed. R. Civ. P. 12(b)(6), the Habeas Rules do not prevent the Court from considering evidence extrinsic to the complaint in deciding a motion to dismiss for failure to exhaust. In any event, even in the Rule 12(b)(6) context, a court may properly consider court filings of undisputed authenticity, as well as other matters subject to judicial notice. See Squeri v. Mount Ida Coll., 954 F.3d 56, 61 (1st Cir. 2020) (matter subject to judicial notice); Lipin v. Ellis, No. 07-92-P-S, 2007 WL 2198876, at *3 (D. Me. July 26, 2007) (court orders, judgments, and other “matters of public record”).
5 The clerical error may have related to the fact, as admitted by Petitioner Denbow, that “some of [Petitioner Denbow’s] motions may have been filed in the docket numbers for Mr. Denbow’s underlying
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On June 5, 2020, the State filed a response to Denbow’s petition (electronically and by overnight mail) and simultaneously moved to dismiss the petition for failure to exhaust administrative remedies within MDOC, as required by 15 M.R.S. § 2126. (Ex. A.)6 Petitioner Denbow’s counsel opposed the motion to dismiss on June 15. (Ex. M.)
On June 17, the court held a telephonic conference under M.R.U. Crim. P. 72A(a). During that phone conference on June 17, Justice McKeon ordered the State to file a reply in support of the motion to dismiss by June 26. Petitioner Denbow requested a deadline of July 10 to move to amend his petition to assert class allegations. Justice McKeon indicated he would likely set a deadline for moving to amend sooner than July 10. Justice McKeon also ordered Petitioner Denbow to file a request for an evidentiary hearing, if Denbow believes a hearing is necessary, which Justice McKeon anticipated would likely occur in September 2020. Following the conference, the court scheduled a bail hearing for Mr. Denbow for June 24, 2020.
Respondents’ investigation indicates that no state inmates other than Mr. Denbow have attempted to avail themselves of the state-court PCR process to address COVID-19-related conditions of confinement. The Office of the Attorney General (OAG), which sometimes represents the State in such proceedings, is handling no such cases. (Decl. of Lisa Marchese, dated June 22, 2020, ¶ 12.) Moreover, the OAG polled the various District Attorneys—whose offices handle the remainder of such cases—and learned of only one additional COVID-19-related case,
criminal dockets, OXFCD-CR-2018-00300, and OXFCD-CR-2018-00600.” (Renewed Mot. for Bail and Opp. to Mot. to Dismiss State Pet. (Ex. M) at 2 n. 2.)
6 At the State’s request, the Superior Court impounded Exhibit A to that response (Mr. Denbow’s criminal history) and certain lines in the supporting affidavits filed by the State, to protect Petitioner Denbow’s privacy. Respondents are filing with this Court the redacted versions of the affidavits, but are not filing the criminal history, because it is not necessary for deciding the motion to dismiss. (See Ex. A.)
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which involves a probationer in the community who filed a case on June 4. (Marchese Decl. ¶¶ 5, 7-11.)
III. State Court Procedures Are Available to MDOC Inmates. As evidenced by the progress of Mr. Denbow’s state-court case, the state courts remain
open and available to litigants. Beginning in March 2020, the Maine Supreme Judicial Court issued emergency Pandemic Management Orders (“PMOs”) to respond to COVID-19, which have been periodically updated. Those orders limited the case types that would be routinely scheduled and heard, with later orders incrementally increasing the number of case types that would be scheduled. (Ex. N, PMO-SJC-1; Ex. O, State of Maine Judicial Branch, COVID-19 Phased Management Plan (“PMP”) at 1.) From the start of the pandemic, the Supreme Judicial Court’s emergency order allowed the hearing of motions for review of bail for defendants held in custody and criminal matters “related to the incarceration of a defendant.” (Ex. N, PMO-SJC-1.) The orders also provided that a case of a type not being routinely heard could still be scheduled and heard upon a showing of “urgent and compelling reasons.” Id.
By May 2020, virtually all case types and proceedings could be heard without the need to show urgent and compelling reasons. See Ex. P, May 6, 2020 Press Release (“Effective immediately, and continuing through May 30, 2020, the courts may schedule and hear virtually all case types and proceedings so long as all hearings, conferences, and other court events take place only by video or audio conference.”); see also Ex. O, PMP (noting that recent PMOs provide for hearing of almost all case types provided that the case can be addressed by video or telephone and that judicial resources will be directed to priority case types first).
On May 27, 2020, the Maine Judicial Branch issued a detailed five-phase approach for the resumption of all functions of the Maine state courts by September 7. (Ex. O, PMP.) This plan makes clear that state courts will continue to schedule and hear matters relating to persons held in
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custody. (Id. at 4.) Under the plan, state courts may “schedule and hear all other case types and proceedings so long as all hearings, conferences, and other court events take place only by video or audio conference.” (Id. at 5.) A party may still request that a matter be heard or scheduled by the Superior Court. (Id. at 6.) The plan envisions a return to all activities by September 2020. (Id. at 11.) Effective Monday, June 1, 2020, Maine courthouses were open from 8 a.m. to 4 p.m., Monday through Friday, with visitor restrictions for entrants. (Id. at 3, 14-15.)
Although there appear to be no other state-court inmate cases like Mr. Denbow’s, Maine courts have moved quickly in other types of cases since the start of the pandemic. For example, a case challenging the Secretary of State’s ratification of a direct initiative petition followed a breakneck schedule in which the Superior Court adjudicated a challenge to an April 1 administrative decision by April 13, with the Law Court deciding the resulting appeal by May 7, 2020. See Reed v. Sec’y of State, 2020 ME 57, ¶¶ 8-11 & n.6, __ A.3d __. Similarly, in an action to enjoin a citizen initiative, Avangrid Network, Inc. v. Secretary of State, CV-20-206, Justice Warren, on May 22, 2020, set a schedule that contemplated a merits resolution by June 29, 2020. (Ex. Q, Scheduling Order.) And, a challenge to a people’s veto petition, Payne v. Secretary of State, Docket No. KEN-20-169, is currently proceeding in the Law Court on an expedited basis.7
Within MDOC facilities, prison mail (including legal mail) has proceeded normally. (Decl of Dr. R. Thornell in Supp. of Mot. to Dismiss, ¶ 5.) The only change in prison mail during the COVID-19 pandemic has been for inmates on quarantine status, whose mail is held until after the two-week quarantine due to the potential for transmitting COVID-19. (Id.) Moreover, MDOC

7

The Order establishing the expedited course of appeal is posted at https://

www.courts.maine.gov/news_reference/high_profile/rankedchoice2020/order_course_of_appeal.pdf (last

visited June 21, 2020).

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facilities have taken steps to ensure prisoners can continue to access to legal materials. (Id. ¶¶ 810.)
Legal Standard Habeas relief to an inmate in state custody “shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). Subsection (c) of § 2254 states that “[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.” This strict exhaustion requirement is grounded in principles of federal-state comity, which counsel that federal courts “will interfere with the administration of justice in the state courts only ‘in rare cases where exceptional circumstances of peculiar urgency are shown to exist.’” Rose, 455 U.S. at 515-16 (quoting Ex parte Hawk, 321 U.S. 114, 117 (1944)). Moreover, because § 2254’s exhaustion requirement is codified in statute, federal courts have no “judicial discretion” to excuse exhaustion except as the statute specifically allows. See Ross v. Blake, 136 S. Ct. 1850, 1857 (2016) (addressing exhaustion under Prison Litigation Reform Act). Federal courts enforce the exhaustion requirement “consistently and rigorously,” with few exceptions. Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997). The First Circuit has “made no bones about the fact that a failure to exhaust ordinarily is ‘fatal’ to the prosecution of a habeas petition.” Jackson v. Coalter, 337 F.3d 74, 85-86 (1st Cir. 2003) (quoting Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988)). There are two “escape hatches” from § 2254’s exhaustion requirement. (Order on Mot. for TRO (ECF No. 25) at 40.) State exhaustion is not required if the federal petitioner has demonstrated that “there is an absence of available State corrective process” or if “circumstances
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exist that render such process ineffective to protect the rights of the applicant.” (Id. (citing 28 U.S.C. § 2254(B)(1)(i-ii)).) The latter situation requires a showing that the relevant state-court process is “so clearly deficient as to render futile any effort to obtain relief.” Gagne v. Fair, 835 F.2d 6, 9 (1st Cir. 1987) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam)).
The burden is on petitioner to demonstrate exhaustion or an exception. Barresi v. Maloney, 296 F.3d 48, 51 (1st Cir. 2002); accord Buchanan v. O’Brien, 181 F.2d 601, 605 (1st Cir. 1950) (holding that the burden was on petitioner to show exhaustion under § 2254 “[b]efore a federal court may exercise the delicate jurisdiction of interfering with state criminal processes”). And it is a “heavy burden,” requiring petitioner to establish that he “fairly and recognizably presented to the state courts the factual and legal bases of this federal claim.” Adelson, 131 F.3d at 262; accord Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011); Barresi, 296 F.3d at 51.
Argument I. The Petition is Barred for Failure to Exhaust.
As discussed in the Court’s order denying Petitioners a TRO, the First Circuit follows the majority view that § 2254 governs all habeas petitions by inmates in custody pursuant to a state court judgment, including those styled as petitions under 28 U.S.C. § 2241. (Order on Mot. for TRO at 38); see Gonzalez-Fuentes v. Molina, 607 F.3d 864, 875 n.9 (1st Cir. 2010); Brennan v. Wall, 100 Fed. App’x 4 (1st Cir. 2004). Thus, it is settled law in the First Circuit that § 2254’s rigorous statutory exhaustion requirement—and not the flexible judge-made exhaustion requirement of § 2241 preferred by Petitioners—applies in this case. Gonzalez-Fuentes, 607 F.3d at 875 n.9; see Elleby v. Smith, No. 20 CIV. 2935, 2020 WL 2611921, at *4 n.3 (S.D.N.Y. May 22, 2020) (contrasting § 2254 statutory exhaustion requirement, which barred COVID-19-related petition, with “judge-made” § 2241 exhaustion requirement).
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Petitioner Denbow has a pending petition for post-conviction review in the Superior Court on the same claims he brings before this Court and thus very much “has the right to raise” the “question presented” in “the courts of the state” and is thus barred by § 2254(c). (Ex. B.) In contrast to Petitioner Denbow, Petitioner Ragsdale has not even attempted to invoke state judicial processes to challenge his confinement. (Marchese Decl. ¶¶ 7-12; see also Ragsdale Decl. (ECF No. 1-3); Pet. (ECF No. 1) at 43.) “[I]t is rather incongruous to call an otherwise available process unnecessarily time-consuming or futile when one has made no effort to initiate it.” Mays v. Dart, No. 20-C-2134, 2020 WL 1812381, at *6 (N.D. Ill. April 9, 2020); see also Wilson v. Wells, No. 3:17-CV-40, 2017 WL 6667515, at *2 (D. Conn. Sept. 6, 2017) (declining to convert complaint into § 2254 petition where petitioner failed to allege any efforts to exhaust state-court remedies). In short, there can be no dispute that neither petitioner has exhausted his state-law remedies under § 2254(b) and (c). Thus, the only way for Petitioners to overcome the exhaustion requirement is to demonstrate that one of § 2254’s two exceptions to exhaustion applies to their claims. They will be unable to carry their “heavy burden” to do so. Barresi, 296 F.3d at 51.
A. State Court Remedies Are Available and By No Means Futile. 1. Mr. Denbow’s State Court Proceeding Is Not Futile.
Petitioners previously took the position that § 2254’s exhaustion exception applies here because Mr. Denbow’s PCR petition allegedly “languished” for “over five weeks” in the Superior Court. (Mot. for P.I. (ECF No. 5) at 10.) It has since become clear, however, that this assertion was incorrect. As counsel for both parties belatedly (due to a clerical error) learned, Mr. Denbow’s petition was specially assigned to a justice on April 24, 2020, shortly after it was filed, and the State had been ordered to respond to the petition within 21 days of receipt of the order. Although the clerical error delayed the State’s response deadline by a few weeks, the State did respond on June 5, 2020, and the case is now moving forward expeditiously.
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A clerical error, unlikely to be repeated, that delayed the state-court proceeding by a few weeks does not come close to showing that the state court processes are “so clearly deficient” as to be “futile.” Gagne, 835 F.2d at 9. Mere passage of time is not sufficient to establish futility except the most egregious circumstances. See Mercer v. Warden, No. 98-315-P-H, 1999 WL 33117092, at *3 (D. Me. Feb. 4, 1999) (declining to excuse exhaustion despite “troublesome” three-year delay in state-court proceedings), report and recommendation aff’d (Feb. 24, 1999); St. George v. Dist. Attorney of Cty. of Philadelphia, 529 F. App’x 226, 228 (3d Cir. 2013) (“regrettable delay” in state court proceeding did not excuse exhaustion where delay “has not rendered the state remedy ineffective”); Malloy v. Dist. Attorney of Montgomery Cty., No. CV 201804-JMY, 2020 WL 2571170, at *3 (E.D. Pa. May 21, 2020) (two-month COVID-19-related delay in state-court proceedings insufficient to excuse exhaustion); cf. Story v. Kindt, 26 F.3d 402, 406 (3d Cir. 1994) (excusing exhaustion after eleven-year delay in state-court proceeding caused by state court’s “inability to manage its own docket”).
Here, after a brief delay, the state court proceeding is moving forward swiftly. The Superior Court is holding a bail hearing on June 24, 2020, and will be adjudicating the State’s motion to dismiss the petition after a reply is filed on June 27, 2020. An evidentiary hearing, if Petitioner Denbow seeks one, would likely occur in September 2020. Particularly in light of MDOC’s exemplary track record in keeping COVID-19 almost entirely out of MDOC facilities,8 the state court’s scheduling decisions are entirely consistent with the urgency of Mr. Denbow’s claims.
Given these facts, the state court proceeding cannot be shown to be “futile.” Gagne, 835 F.2d at 9. The Court should thus “defer action on a cause properly within its jurisdiction until the
8 See ECF No. 20, Thornell Declaration, dated May 27, 2020, ¶ 55 (stating that MDOC has had only four positive inmate cases, in a single facility, since the start of the pandemic).
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courts of another sovereign with concurrent powers, already cognizant of the litigation, have had an opportunity to pass upon the matter.” Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir. 1994) (citing Rose, 455 U.S. at 518). Because Petitioners have not given the state court a chance to rule on Mr. Denbow’s claims, this Court should dismiss the petition without prejudice.
2. Petitioners Cannot Show that Maine Courts Generally Are Incapable of Adjudicating COVID-19-Related Claims Brought by Class Members.
Petitioners also claim that “exhaustion is futile for proposed Class Members, because requiring each class member to individually petition the state court would burden the limited judicial resources during this emergency and cause further delay.” (Pet. (ECF No. 1) ¶ 95.) But the state courts would clearly not be overburdened by petitions by the two named class members. Whether state courts would be overburdened if every single putative class member filed a statecourt action is not the relevant question and in any event is purely speculative. Respondents’ investigation shows that it appears no other inmate in MDOC custody has even tried to file a petition for post-conviction review based on COVID-19. (Marchese Decl. ¶¶ 7-12.) There is simply no reason to think that dismissal of this action would result in a flood of state-court actions by MDOC inmates or that state courts could not handle such a flood.
As another district court recently explained, although COVID-19 “has had an undeniable impact on all aspects of society, including delaying many court proceedings,” such generalized facts are not sufficient to excuse exhaustion absent some specific showing by a petitioner that he “cannot obtain relief” in state court. Pittman v. Cook, No. 3:20cv626, 2020 WL 2840256, at * 7 (D. Conn. June 1, 2020) (declining to excuse exhaustion where petitioner never attempted to file an emergency motion in his state case). In addition to Pittman, a growing number of federal courts have rejected claims by inmates that actual or theorized COVID-19 related roadblocks to a state
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court proceeding are sufficient to defeat § 2254’s exhaustion requirement. 9 This caselaw is
particularly apt where, as described above, Maine courts are well along in the process of returning
to normal operations and where state courts have been hearing cases regarding in-custody
individuals and other time-sensitive cases.
3. Other State Remedies Besides PCR Are Potentially Available.
Finally, even if PCR proceedings were found to be “ineffective” for some reason, class
members have other potential options to present their claims in state court.10
State inmates could file a petition for writ of habeas corpus under 14 M.R.S. § 5501, which
states, “Every person unlawfully deprived of his personal liberty by the act of another, except in
the cases mentioned, shall of right have a writ of habeas corpus” and that this petition “shall be
made to any Justice of the Supreme Judicial Court or Superior Court, regardless whether or not
the Supreme Judicial Court or Superior Court is in session.” 14 M.R.S. § 5513 (emphasis added).
The Justice may then “hear evidence produced on either side, and if no legal cause is shown for
9 See Resch v. Rewerts, No. 1:20-CV-515, 2020 WL 3396625, at *3 (W.D. Mich. June 19, 2020) (exhaustion not excused where petitioner failed to allege circumstances rendering state court remedies ineffective); Brooks v. Wolcott, No. 20-CV-0516, 2020 WL 3103795, at *4 (W.D.N.Y. June 11, 2020) (“various state and national orders” allegedly impacting availability of courts did not excuse exhaustion); Bussinger v. Gramp, No. CV 20-5600, 2020 WL 2989080, at *2 (D.N.J. June 3, 2020) (exhaustion not excused where petitioner could have sought emergency review of claims in state court); Griffin v. Cook, No. 3:20-CV-589, 2020 WL 2735886, at *2 (D. Conn. May 26, 2020) (exhaustion not excused where state courts had previously acted upon another COVID-19-related habeas matter); Elleby v. Smith, No. 20 CIV. 2935, 2020 WL 2611921, at *4 (S.D.N.Y. May 22, 2020) (exhaustion not excused where inmates could bring post-conviction proceedings in New York courts and those courts were acting on such requests); Malloy v. Dist. Attorney of Montgomery Cty., No. CV 20-1804, 2020 WL 2571170, at *3 (E.D. Pa. May 21, 2020) (two-month COVID-19-related delay in state-court proceedings did not excuse exhaustion); Gansert v. Barnes, No. 820CV00781, 2020 WL 1975387, at *2 (C.D. Cal. Apr. 24, 2020) (order to show cause why exhaustion did not bar claim where prisoner’s pending state-court proceeding was filed “a few weeks ago”); Money v. Pritzker, No. 20-CV-2093, 2020 WL 1820660, at *21 (N.D. Ill. Apr. 10, 2020) (exhaustion not excused where relevant state court remained open for emergency matters).
10 In pointing out these potential avenues for state-court relief, Respondents do not suggest that a class member’s right to such relief would go uncontested by the State in any such proceeding, nor do they waive (or, for that matter, have any authority to waive) any arguments that the State might have against such relief.
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such imprisonment or restraint, the court or justice shall discharge” the individual. 14 M.R.S. §§ 5513, 5516. If the writ is denied, an appeal can be taken to the Law Court. Id. § 5513; see Lamay v. State, 276 A.2d 603, 605 (Me. 1971) (considering an appeal of the Superior Court’s denial of a petition for habeas corpus and holding that a hearing is mandatory “when there are relevant allegations of fact in a petition which, if satisfactorily proved, would entitle the Petitioner to the writ[.]”). Thus, the writ of habeas corpus remains a viable state court remedy for “[e]very person unlawfully deprived of his personal liberty by the act of another.” 14 M.R.S. § 5501. A detained juvenile recently used § 5501 to obtain review of his detention in the MDOC juvenile facility in A.I. v. State of Maine, Dkt. No. SJC-19-02 (Me. Sup. Jud. Ct. 2019) (opinion attached as Ex. R), which Justice Gorman ruled on, and A.I. appealed. Petitioners could have brought a petition under § 5501, but they have not tried.
In addition to a § 5501 petition, Petitioners could have challenged the denial of their applications for Supervised Community Confinement (or any other final COVID-related action by MDOC) under the Maine Administrative Procedure Act (MAPA), 5 M.R.S. § 11001. In the petition for PCR, Petitioner Denbow recognized the potential for review by a state court under this provision, stating, “To the extent the Court determines that this action challenges administrative action not included in the definition of post-sentencing proceeding, . . . Petitioner respectfully requests that the Court exercise its equitable authority to convert the action into an emergency complaint under [MAPA].” (Mem. of Law in Supp. Emergency Pet. for PCR at 9 n.17 (Ex. D).) That Petitioners could have sought judicial review of a final agency action reflects another available state procedure that Petitioners could have employed.
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Finally, Under Criminal Procedure Rule 35, a convicted individual may move to “correct an illegal sentence or a sentence imposed in an illegal manner.”11 Because Petitioners’ habeas claims purport to challenge the legality of their criminal sentences, those claims may be cognizable through a Rule 35 motion to correct a sentence. See State v. Gilman, 2010 ME 35, ¶ 15, 993 A.2d 14 (vacating a criminal sentence for operating after revocation on appeal of the denial of the State’s motion to correct an illegal sentence, and rejecting defendant’s arguments that the minimum sentencing provision was unconstitutionally disproportionate and violated his equal protection and due process rights). One inmate at Mountain View has brought a motion to reduce his sentence under Rule 35(c), based on the threat of COVID-19. (Marchese Decl. ¶ 10.)
In short, because class members have multiple state avenues available to them, federal habeas relief is barred by 28 U.S.C. § 2254(c).
B. That State Law Regarding Class-Wide Habeas Relief Is Untested Does Not Excuse the Failure to Exhaust.
Petitioners also argue that, because the state criminal procedure rules do not authorize class treatment, they are not subject to the exhaustion requirement. (Mot. for P.I. (ECF No. 5) at 10.) The Court should reject this proposition as a matter of law. Respondents are aware of no case in any jurisdiction supporting the extraordinary proposition that merely including class allegations in a habeas petition could defeat exhaustion, thus creating a huge, easily exploited loophole in an exhaustion requirement that is supposed to be applied “consistently and rigorously.” Adelson, 131 F.3d at 262. To the contrary, federal courts considering exhaustion in the context of habeas class-
11 While a Rule 35(a) motion must be “made within a year after a sentence is imposed,” and is thus arguably only available for a portion of the purported class, Petitioners could presumably argue that the one-year bar should not apply when the factors that make the “sentence imposed in an illegal manner” have only recently arisen. M.R.U. Crim. P. 35(a). As discussed more fully below, that the contours of a state remedy are unclear or untested does not show that they are “unavailable” under § 2254.
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actions have required the Petitioners to satisfy exhaustion requirements, including in the COVID19 context. Mays, 2020 WL 1812381, at *6 (dismissing class-action habeas petition over COVID19 response where named petitioners failed to exhaust); Pace v. Chino Inst. for Men, No. EDCV 09–00841, 2009 WL 2189885, at *2 (C.D. Cal. July 21, 2009) (finding “no need to consider” whether a § 2254 petition may be brought as a class action where named petitioners failed to exhaust); Robinson v. Leahy, 401 F. Supp. 1027, 1032 (N.D. Ill. 1975) (dismissing class action for failure to exhaust under § 2254).
Indeed, Plaintiffs’ proposed class-action exception is inconsistent with the very language of § 2254. To excuse exhaustion, subsection (b)(1)(B)(ii) requires the applicant to show that “State corrective process” is “ineffective to protect the rights of the applicant.” Even assuming that the “applicant” here includes each putative class member and not just the two named petitioners, the fact that state law might require a particular individual class member to seek state-court relief actively through an individual habeas or PCR action rather than passively as a member of a class in no way makes the State’s corrective processes “ineffective” to protect that particular class member’s rights. 28 U.S.C. § 2254(b)(1)(B)(ii). Moreover, in a telling indication of congressional intent, § 2254 specifically provides that a petitioner must use “any available procedure” to present his claims to the state court in order to exhaust. 28 U.S.C. § 2254(c) (emphasis added). This language strongly suggests that Congress did not intend for federal courts to excuse exhaustion merely because state-court rules did not include the applicant’s preferred procedural mechanism for presenting his claims.
Finally, even assuming arguendo that the lack of a class-action mechanism in the state courts might excuse § 2254 exhaustion, Petitioners cannot meet their heavy burden to establish that the unavailability of a class-action remedy in state court is so certain that it would be “futile”
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for Petitioners to even attempt to seek it. Gagne, 835 F.2d at 9; see also Roman v. DiGuglielmo, 675 F.3d 204, 209 (3d Cir. 2012) (exhaustion under § 2254 is futile only if a remedy is “so clearly foreclosed by state law” that the federal habeas court can “conclude with certainty” that the remedy is unavailable).
Here, Petitioners have not tried to bring a class petition in state court, or a common law class petition under 14 M.R.S. § 5501. At a telephonic hearing on June 17, 2020, in Mr. Denbow’s state post-conviction review proceeding, Justice McKeon stated that he will permit Petitioner Denbow to move to amend his petition to include class claims and will decide on briefs whether to allow amendment.12 Petitioners undoubtedly have the opportunity to make the case for a class petition before Justice McKeon; they simply have not tried.
As described in Part I.A.3 above, Petitioners and other class members also have other state court processes by which they could attempt to challenge their confinement, including a common law habeas petition under 14 M.R.S. § 5501 or an administrative appeal of an adverse SCCP decision under 5 M.R.S. § 11001 and M.R. Civ. P. 80C. In either type of proceeding, Petitioners could attempt to assert class-action claims, even if it turned out they were unavailable in PCR proceedings.
While it is true that Maine Supreme Judicial Court appears to have never held that a class mechanism is available in any of the proceedings potentially available to Petitioners in state court, it also appears to have never rejected the applicability of a class mechanism to those proceedings.13
12 MDOC will likely oppose class treatment of this putative class action, including on the same grounds MDOC will oppose class certification in the federal case, but the opposition of one party does not establish that the remedy is unavailable.
13 Indeed, even in the federal habeas context, uncertainty remains as to whether a class action is permissible. See Jennings v. Rodriguez, 138 S. Ct. 830, 858 n.7 (2018) (Thomas, J., concurring in part) (“This Court has never addressed whether habeas relief can be pursued in a class action.”).
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The reality is that no one knows whether Maine courts would allow such class claims. But Respondents do not have to establish that such a remedy is permitted; Petitioners must establish— to a “certainty”—that such a remedy is not permitted. Roman, 675 F.3d at 209. Thus, even if lack of a class mechanism could be said to make state processes “ineffective,” Petitioners still cannot be excused from exhaustion, since the most they can establish is uncertainty as to the availability of such a remedy in the state courts. II. Younger Abstention Bars Denbow’s Claims.
Finally, Petitioner Denbow cannot obtain relief in this action or serve as class representative because his claims are barred by Younger abstention. Younger abstention is premised on the “strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances” and “a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982) (internal citations and quotation marks omitted).
As the Supreme Court has recently clarified, Younger abstention is potentially applicable to three specific types of “exceptional” state-court actions: “(i) criminal prosecutions, (ii) civil proceedings that are akin to criminal prosecutions, and (iii) proceedings that implicate a State’s interest in enforcing the orders and judgments of its courts.” Sirva Relocation, LLC v. Richie, 794 F.3d 185, 192 (1st Cir. 2015). If the state court proceeding falls within one of these categories, Younger further requires that the requested federal relief interfere (i) with an ongoing state judicial proceeding; (ii) that implicates an important state interest; and (iii) that provides an adequate opportunity for the federal plaintiff to advance his federal constitutional challenge. Id.
Here, all the requirements for Younger abstention are met. A state PCR proceeding in
18

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which the petitioner seeks relief from a criminal sentence ordered by a state court “implicate[s] a State’s interest in enforcing the orders and judgments of its courts,” id., and is thus one of the “exceptional” proceedings to which Younger applies. See Willis v. Dembe, No. CV 15-3821, 2016 WL 3612000, at *3 (E.D. Pa. July 6, 2016) (citing cases to show that “courts have interpreted [Younger] test to include pending state habeas actions”); see also Heck v. Humphrey, 512 U.S. 477, 487 n.8 (1994) (observing in dicta the abstention may be appropriate if a federal civil-rights action is brought during the pendency of a state habeas proceeding); Morrow v. Holland, No. 182412, 2019 WL 2720213, at *4 (W.D. Tenn. June 27, 2019) (applying Younger to postconviction proceeding); Canales-Robles v. Peters, 270 F. Supp. 3d 1230, 1241 (D. Or. 2017) (same).
Moreover, the three additional Younger factors are met: Denbow’s PCR proceeding is ongoing. (Ex. C.) An order from this Court releasing Denbow from custody would interfere with that state proceeding by effectively terminating it. Bowell v. Paramo, No. CV1709313, 2018 WL 4735721, at *4 (C.D. Cal. Aug. 6, 2018), report and rec. adopted, 2018 WL 4698250 (C.D. Cal. Sept. 28, 2018) (holding that federal action seeking release from custody “would entail interference [with state habeas proceedings] because the ongoing state proceeding effectively would be terminated”). Moreover, state habeas and post-conviction proceedings implicate a state’s “enforcement of criminal laws and the administration of its judicial system,” which are “vital state interests.” Ridge v. Campbell, 984 F. Supp. 2d 364, 375 (M.D. Pa. 2013); see also Wiltse v. Smith, No. 17-CV-01022, 2018 WL 1517176, at *2 (D.N.M. Mar. 27, 2018) (“the state has an important interest in reviewing the constitutionality of Petitioner’s criminal conviction and sentence”); Shove v. Martel, 510 F. App’x 503, 503 (9th Cir. 2013) (habeas proceeding “implicates important state interests”). Indeed, the State’s interest in postconviction review proceedings is precisely the same as its interest in the original criminal proceeding, which Younger itself recognizes as an interest
19

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meriting abstention. And, finally, as already shown in Part I, Denbow has a full opportunity to

advance his federal constitutional challenge in those state proceedings. See Pennzoil Co. v. Texaco,

Inc., 481 U.S. 1, 17 (1987) (holding that an “unusual fact situation, never before addressed by the

[state] courts” did not defeat abstention where plaintiff failed to show that state court procedures

were “so deficient” that courts could not adjudicate constitutional claims); Carbajal v.

Hotsenpiller, 524 F. App’x 425, 428 (10th Cir. 2013) (delay in state-court post-conviction

proceeding did not establish state court provided an inadequate forum for Younger purposes).

Because Denbow’s state petition provides an adequate remedy for Denbow to advance his

constitutional challenges, and because a federal-court decision ordering the release of Denbow

would interfere with that proceeding, this Court should abstain and dismiss Denbow’s petition.

Conclusion

The petition for habeas corpus is barred by 28 U.S.C. § 2254(b) and (c) and should be

dismissed without prejudice.

Dated: June 22, 2020

AARON M. FREY Attorney General

/s/ Jonathan R. Bolton Jonathan R. Bolton jonathan.bolton@maine.gov Jillian R. O’Brien jill.obrien@maine.gov Alisa Ross alisa.ross@maine.gov Assistant Attorneys General Office of the Attorney General 6 State House Station Augusta, ME 04333-0006 Tel. (207) 626-8800

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STATE OF MAINE OXFORD, ss.
JOSEPH DENBOW, Petitioner
v. STATE OF MAINE,
Respondent

SUPERIOR COURT UNIFIED CRIMINAL DOCKET DOCKET NO. CR-2020-226 (Post Conviction Review)
) ) ) ) STATE OF MAINE'S RESPONSE AND ) REQUEST FOR DISMISSAL OF ) PETITION FOR POST-CONVICTION ) REVIEW ) )

NOW Comes Respondent the State of Maine and hereby responds to the petition1 by Joseph Denbow for post-conviction review and further requests that the Court dismiss the petition for failure to exhaust administrative remedies, as required by 15 M.R.S. § 2126.
PROCEDURAL HISTORY Mr. Denbow is incarcerated at Mountain View Correctional Facility and is serving a sentence for aggravated forgery (Class B) and operating after habitual offender revocation (with a prior) (Class C), to which he pied guilty on May 8, 2019. (Denbow Criminal History, attached to this Response as Exhibit A.) He received a sentence of IO years of incarceration, all but 2 years suspended, and 2 years of probation for the aggravated forgery and 2 years of incarceration and 2 years of probation for the operating after habitual offender revocation. (Id.) His estimated release date is cutTently August 28, 2020. (Affidavit of Hollie Brewer, filed concurrently, � 9.) His criminal history also reflects prior convictions for assault, burglaries, thefts, operating under the influence, operating after habitual offender revocation, failing to report, failure to submit to arrest,

1 Petitioner submitted not only a petition for post-conviction review but also a "Memorandum of Law in Suppott of Emergency Petition for Post-Conviction Review." The Court's Order directing the State to respond attached the petition, but not the "Memorandum of Law." The State reserves the right to respond fu1iher to the legal and factual claims made in the "Memorandum of Law," after the Court determines if the petition must be dismissed for failure to exhaust under 15 M.R.S. § 2126.
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probation violations and revocations, and forgery. (Denbow Criminal Histmy (attached as Ex. A); Affidavit of Benjamin Beal, filed concurrently,, 13; Brewer Aff., 13.)
Mr. Denbow was incarcerated at Mountain View Conectional Facility on a prior conviction m 2013, and he applied to participate in the Supervised Community Confinement Program (SCCP)2 rnn by the Maine Department of Conections ("MDOC"). (Brewer Aff. , 4; Beal Aff. , 2.) After a thorough investigation of Mr. Denbow's proposed residence and upon Mr. Denbow's
agreement to a list of conditions for his participation, MDOC granted him supervised community confinement in 2013.3 (Brewer Aff. , 4, 7; Beal Aff. ,, 3-4.) The SCCP Program allowed Mr. Denbow to live in the community (supervised by probation) and to attend welding classes at Beal College. (Brewer Aff., 6.) Mr. Denbow's caseworker, Hollie Brewer, assisted him in applying to college and for financial aid. (Id., 3.) The Warden of Mountain View himself drove Mr. Denbow
to the Beal College orientation. (Id. , 5.). However, after being released to the community on SCCP, Mr. Denbow violated the terms of the program, and was sh01tly thereafter returned to
Mountain View. (Id., 8.) Mr. Denbow sought to pmticipate in the SCCP program again in 2020, during his cunent
term of incarceration. (Brewer Aff. ,, 11-12.) Mr. Denbow wrote on a re-entiy questionnaire, dated Janumy 3, 2020, that he was not sure where he would be living upon release and would
"need help with apt., house, etc." and would need to apply for housing programs such as the
2 The Supervised Community Confinement Program (SCCP) is governed by 34-A M.R.S. § 3036-A and allows the Commissioner of MDOC to consider inmates for release to approved residences in the community with supervision by probation. The statute limits which inmates qualify for SCCP and sets strict requirements. For example, inmates are not eligible for SCCP unless they are classified at a security level of minimum custody or better, or until they have served a ce1tain pmtion of their sentence, and their proposed residence must be approved by MDOC. 34-A M.R.S. § 3036-A(2)(B)-(D), (3)(B). 3 The State has records reflecting Mr. Denbow's SCCP participation and application to SCCP in 2013 and 2020, but the State believes that certain information contained in these records is protected by state and federal law and cannot be disclosed without a Court order. See, e.g., 34-A M.R.S. § 1216. If the Court wishes to view the records, the State will immediately provide the documentation upon a Court order. The State has already provided Mr. Denbow's
counsel, Emma Bond, copies of these records.
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Bridging Rental Assistance Program (BRAP) (for which an inmate must have "no subsequent identified residence" to be eligible), as well as MaineCare, food stamps, and possibly general
assistance. (Brewer Aff. 1 10.) Mr. Denbow also indicated that he would need two weeks of
medication upon release. (Id.) Although Mr. Denbow takes prescribed medication daily, he performs his own activities of daily living. For example, he is able to walk across the Mountain View campus, climb stairs, and walk to the "smoke shack" where Mr. Denbow and other inmates
at Mountain View are permitted to go to smoke cigarettes.4 (Brewer Aff. 11 19, 21.)
In March of 2020, the "unit team"5 in Mr. Denbow's unit at Mountain View Correctional Facility evaluated Mr. Denbow for participation in SCCP and determined he was not an appropriate candidate, based on his lack of housing, prior SCCP failure in 2013, and criminal
history. (Id. 11 13-14.) There is a procedure by which inmates can appeal these SCCP determinations within MDOC, and Mr. Denbow did not pursue any appeal. (Beal Aff. 11 I 0-12; Brewer Aff. 1 18.)
On April 13, 2020, Mr. Denbow filed this petition for post-conviction review. Mr. Denbow' s petition does not challenge his plea or the criminal conviction itself; instead, Mr. Denbow argues that his remaining in prison through August (when his sentence will expire) is "cruel and unusual punishment" and "disproportionate" because Mr. Denbow claims to be "at high risk of serious illness and death from COVID-19" by vittue of being in prison. (Petition p. 3.) However, MDOC has taken innumerable steps to try to prevent COVID-19 from entering and spreading in Maine's prisons, and as of today, there have only been four confirmed cases of COVID-19 in the prisons, at a single facility in Windham, despite testing and re-testing that
4 Inmates at Mountain View can obtain smoking cessation aids through the Maine Tobacco Helpline, which provides inmates with free lozenges, gum, and patches through the inmate's caseworker. (Brewer Aff. 'If 22.)
5 The "unit team" is a group that meets to discuss inmates' community program applications and other decisions
regarding inmate housing and classification issues. (Brewer Aff. 'If 12.)
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facility's entire population. (See Affidavits of Dr. Ryan Thornell (iii! 26, 31-33, 43-44, 49-50, 5455, 57) and Dr. John Newby (iii! 10, 14, 17-21, 23, 30-32, 39, 42, 44), attached to this Response as Exhibits B and C, and which were filed in federal court6 on May 27, 2020, detailing the steps MDOC has taken to reduce the risk of COVID-19 in prison; see also Brewer Aff. ,i,i 24-31, outlining steps taken at Mountain View specifically in light of COVID-19.) Because MDOC took early and aggressive action to reduce the risk of COVID-19 to inmates, and because those actions have been effective, Mr. Denbow's sentence is not unconstitutional.
Mr. Denbow's petition is also barred by 15 M.R.S. § 2126, because he failed to exhaust administrative remedies. Mr. Denbow's petition claims that he sought administrative remedies by "request[ing] release from the Depaiiment of Corrections through the Supervised Community Confinement program" (Petition p. 6), but Mr. Denbow omits the fact that he failed to appeal the determination by his unit team that he was not suitable for the program. (Brewer Aff. ,i,i 16-18; Beal Aff. ,i,i 9-11.) Because the regulations governing SCCP provide a mechanism to appeal that determination further within MDOC, which Mr. Denbow did not do, Mr. Denbow has failed to exhaust administrative remedies and cannot bring this petition for post-conviction review. (Beal Aff. iii! 9-11.)
For these reasons, the State requests that the Couti dismiss the petition on the ground that he did not exhaust administrative remedies as required by 15 M.R.S. § 2126. Pursuant to the
6 While this petition for post-conviction review was pending, Mr. Denbow also filed a habeas petition in federal court, through his counsel, purporting to bring a class action, and moved for a temporary restraining order against MDOC, seeking the release of hundreds of inmates, among other broad relief. (See Denbow v. MDOC, Case No. I :20cv175-JAW, filed May 15, 2020.) However, as MDOC raised in the federal action, the federal habeas statute (28 U.S.C. § 2254(b), (c)) requires that Mr. Denbow exhaust his state remedies, which he has not done, given the instant proceedings in Superior Court. MDOC has also alerted the federal comt to the status of these proceedings.
4

Case 1:20-cv-00175-JAW Document 31-1 Filed 06/22/20 Page 5 of 20 PageID #: 684
Court's order of April 24, 2020,7 the State also responds to the grounds asserted in the petition under Rules 71 and 71A.
REQUEST TO DISMISS PETITION Respondent State of Maine seeks dismissal of the petition under Maine Rule of Criminal Procedure 71A and 15 M.R.S. § 2126, because Mr. Denbow failed to exhaust administrative remedies available to him within MDOC. Mr. Denbow failed to show that he exhausted administrative remedies, and he cannot make that showing, because he failed to appeal the denial of his request to participate in the Supervised Commlmity Confinement Program. (Beal Aff. 11912; Brewer Aff. 1116-18.) 15 M.R.S. § 2126 requires that a petitioner for post-conviction review "must also demonstrate that the person has previously exhausted remedies incidental to
proceedings in the trial court, on appeal or administrative remedies." (Emphasis added.) Because Mr. Denbow did not exhaust available administrative remedies, his petition should be denied.
RESPONSE TO PETITION The State denies the allegations in the petition for post-conviction review, and states as follows: 1. The State denies Petitioner's claim in "Ground One." First, as discussed above, both grounds of Mr. Denbow's petition should be dismissed for failure to exhaust administrative remedies under 15 M.R.S. § 2126. As a substantive matter, Mr. Denbow's incarceration does not pose a "high risk of serious illness or death from COVID-19" that would render three more months of incarceration (the rest ofhis Comt-ordered sentence) "unconstitutionally disproportionate to his offense," as Mr. Denbow
7 The Comt ordered the State to respond to the petition under M.R. Crim. P. 71 within 21 days of the date the order assigning the petition "is received." Due to a clerical error, counsel for Petitioner and the Office of the Attorney General did not receive this Order until May 18, 2020, although the Comt signed the Order on April 24, 2020. As a result, this response to the petition is timely filed within 21 days of receipt of the petition.
5

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claims in Ground I. MDOC and Mountain View have taken innumerable steps to address the risk of COVID-19 facing inmates and staff in MDOC facilities. In light of the risks of COVID-19, Mountain View has implemented social distancing to the greatest extent possible, including in Donn 3, where Mr. Denbow lives. (Brewer Aff. ,i,i 23-24.) For example, each floor of Mr. Denbow's dormitory (approximately 25 people) is going to the chow hall eve1y other day. (Id.) On the days in between, the inmates eat in their housing units. (Id ,i 24.) Due to COVID-19, Mountain View also instituted increased cleaning practices. (Id. ,i 26.) In addition, inmates at Mountain View, including Mr. Denbow, have access to a disinfecting agent and rags to clean their cells and any other surfaces they wish to clean. (Id. ,i 25.) Inmates at Mountain View also have access to alcohol-based hand sanitizer. (Id. ,i 27.) This hand sanitizer is kept in an officer-only area for distribution to inmates because of its 70% alcohol content and potential for abuse. (Id.)
Additionally, inmates at Mountain View have been provided with two cloth masks and are required to wear them when they are outside of their room or dorm floor, if they are not able to stay six feet from other people. (Id ,i 28.) Exceptions to this rule are limited to situations in which mask wearing is not practical, such as while inmates are eating in the chow hall. (Id.) If Mr. Denbow leaves his dorm to go to another part of the facility, he and other inmates are required to wear masks ifthey cannot socially distance. (Id) Staffat Mountain View are also required to wear masks when interacting with inmates. (Id ,i,i 29-30.)
As discussed by MDOC in opposition to the request by Petitioner and others for a temporary restraining order from the federal court regarding these same claims about the conditions of confinement, MDOC and its contracted medical provider (Wellpath) provided extensive evidence of the early and aggressive steps MDOC took and is still taking to combat the
spread of COVID-19. (Thornell Aff. iii! 26, 31-33, 43-44, 49-50, 54-55, 57; Newby Aff. iii! 10, 14,
6

Case 1:20-cv-00175-JAW Document 31-1 Filed 06/22/20 Page 7 of 20 PageID #: 686
17-21, 23, 30-32, 39, 42, 44.) In March, MDOC took action to limit movement into prisons of nearly everyone except staff and implemented strict staff screening requirements. (Thornell Aff. '1!'1! 26, 31, 32, 50.) MDOC has worked extremely closely with the Maine Center for Disease Control & Prevention to develop a three-phased plan to prevent the spread of COVID-19 in prisons. (Id. '1!'1! 7, 22, 57.) MDOC responded aggressively to the first confirmed inmate case in prison (which did not occur until May 19, 2020), and tested and re-tested all inmates at that prison, only finding four total inmates with positive tests. (Id. '1!'1! 55, 57.) Those inmates are being cared for by Wellpath staff, have not required hospitalization, and are isolated from other inmates. (Id. '1!'1! 55.) MDOC also worked to identify any inmates who had recently transferred out of that prison and tested them, to prevent the spread of the virus. (Id. '1!'1! 53-54.) Given these efforts, Mr. Denbow remaining in prison8 until the end of August does not constitute an unconstitutionally "disproportionate" sentence for the crimes to which he pied guilty. Thus, the State of Maine denies Ground One of the petition. 2. The State denies Petitioner's claim in "Ground Two."
First, as discussed above, both grounds of Mr. Denbow's petition should be dismissed for failure to exhaust administrative remedies under 15 M.R.S. § 2126.
As a substantive matter, Mr. Denbow's incarceration does not violate the U.S. or Maine Constitution's prohibition on "crnel and unusual punishment," as claimed in the petition. As discussed above, MDOC has taken innumerable steps to try to prevent COVID-19 from entering
8 With only four cases of COVID-19 confirmed in Maine's prisons, prison is arguably safer than the community, where thousands of cases have been reported. As of June 4, 2020, there have been 2,446 confirmed cases of COVID19 in Maine. Penobscot County, where Mr. Denbow is incarcerated, has had 100 confirmed cases. Cumberland County, where the Maine Conectional Center is located, has had 1,244 confirmed cases. Knox County, where Maine State Prison is located, has had 21 confirmed cases. See Maine Center for Disease Control, "Novel Coronavirus 2019 (COVlD-19)," https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus.shtml (last viewed June 5, 2020).
7

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the prisons and stopping its spread. These efforts do not constitute cruel or unusual punishment. Prison officials cannot be found to have violated the Cruel and Unusual Punishment Clause of the Eighth Amendment "for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety[.]" Farmer v. Brennan, 511 U.S. 825, 837 (1994). The state of mind required for an Eighth Amendment violation is "akin to criminal recklessness." Farmer, 511 U.S. at 837-38. A reasonable response to a known risk negates an Eighth Amendment claim based on conditions of confinement, even if harm is not averted,9 and even a negligent response to a known risk "that was colorable and taken in good faith might still be enough to negate deliberate indifference." Burrell v. Hampshire County, 307 F.3d 1, 8 (1st Cir. 2002) (citing Farmer, 511 U.S. at 844).
Mr. Denbow claims in the petition that "[t]he Legislature has not made Mr. Denbow's [crimes] punishable by death" and that "[g]iven the impossibility of physical distancing in prison, Mr. Denbow's remaining prison sentence [through August 2020] exposes Mr. Denbow to an unsafe, life threatening condition" and constitutes cruel and unusual punishment. (Petition p. 3.) But keeping Mr. Denbow in prison at Mountain View, where there have been no confirmed cases
ofCOVID-19 (see Thornell Aff. ,r,r 53, 55), for the remainder ofhis sentence (three more months),
does not constitute cruel and unusual punishment. The community in Maine has had thousands of positive COVID-19 tests, while MDOC's prisons have only found four confirmed positives,
despite testing over 900 inmates.10 (Thornell Aff. ,r,r 35, 55; MDOC Daily COVID-19 Dashboard,
9Here, harm has thus far been largely averted, as Mr. Denbow has not contracted COVID-19, and the four inmates at MCC who have tested positive have not required hospitalization. (Thornell Aff. � 55.) 10 MDOC has been remarkably transparent regarding COVID-19. MDOC publishes data every weekday regarding the inmate population and COVID-19 on the MDOC Daily COVID-19 Dashboard, https://www.maine.gov/corrections (last visited June 5, 2020). On June 5, 2020, the dashboard indicated that 954 inmate tests for COVID-19 had been run, and only 4 tests had come back positive. In addition, eve1y time an inmate has tested positive for COVID-19, MDOC has issued a press release within a matter of hours to inform the public of the result and MDOC's eff011s in response to those test results. (Thornell Aff. �� 59-60.)
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https://www.maine.gov/corrections (last visited June 5, 2020).) Given MDOC's actions, the fact that Mr. Denbow remains incarcerated to complete the sentence imposed by the Court for the crimes to which he pied guilty does not constitute cruel and unusual punishment. Thus, the State of Maine denies Ground Two of the petition.
CONCLUSION For the above reasons, the State respectfully requests that this Court dismiss the petition for post-conviction review.

Date: June 5, 2020

0.(3.().
Jillian R. O'Brien, Bar No. 6225 Assistant Attorney General Office of the Attorney General 6 State House Station Augusta, ME 04333-0006 (207) 626-8800 jill.obrien!Zzl,maine.gov

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Case 1:20-cv-00175-JAW Document 31-1 Filed 06/22/20 Page 10 of 20 PageID #: 689

STATE OF MAINE OXFORD, ss.
JOSEPH DENBOW, Petitioner
V.
STATE OF MAINE, Respondent

SUPERIOR COURT UNIFIED CRIMINAL DOCKET DOCKET NO. CR-19-1755
) ) ) ) AFFIDAVIT OF BENJAMIN BEAL ) ) ) ) )

Benjamin Beal, duly sworn, states that the following is true and correct and based on his personal knowledge:
I. I have personal knowledge of the facts contained in this affidavit. In preparing this affidavit, I also reviewed records regularly kept by the Maine Department of Corrections ("MDOC" or "the Depmiment") that are available to me and that I rely on in my official duties.
2. I am the Director of Classification for MDOC and have served in this role for approximately fomieen months. I have worked for MDOC for over 19 years. In this position, I manage the Supervised Community Confinement Program (SCCP), governed by 34-A M.R.S. § 3036-A, and the applicable regulations 03-201 C.M.R. ch. 10, which are laid out in the Department's SCCP Policy, a true and correct copy of which is attached to this affidavit.
3. The SCCP Policy provides that to pmiicipate in SCCP, the inmate must have a proposed residence that is approved by the Regional Correctional Administrator, or his or her designee. The approved residence requirement is also in the statute (34-A M.R.S. § 3036A(3)(B)). The SCCP Policy also states that the residence must not also house others who are potential crime victims, offenders, former offenders, or MDOC staff. (Procedure C, attached).

1

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4. The SCCP Policy also lays out the multiple steps involved in the SCCP application process (Procedure D, attached), including investigating the proposed residence, conducting a records check for outstanding wan·ants or detainers, review of the application by the unit management team ("unit team"), and a community investigation that includes a site review, investigation of community sentiment, input from law enforcement, and victim impact statements (if applicable). See Procedure D, attached.
5. Mr. Denbow is currently in the custody ofMDOC and housed at the Mountain View CotTectional Facility.
6. Mr. Denbow participated in the SCCP program in 2013. As dictated by statute, before release to SCCP, Mr. Denbow signed a list of conditions of his release to SCCP and agreed to abide by those terms. He was terminated from the program in 2013 for failing to abide by those terms.
7. It is my understanding that Mr. Denbow applied for the SCCP program, and that on March 31, 2020, Mr. Denbow's unit team thoroughly discussed his SCCP application and determined it was not appropriate for Mr. Denbow.
8. The unit team reviewed documentation regarding Mr. Denbow from the Department's offender management database ("CORIS"), including his return to prison from SCCP in 2013, for violating the terms of the program, as well as the fact that Mr. Denbow does not have a residence in the community to be released to.
9. Mr. Denbow did not appeal the Unit Team's determination that SCCP participation is not appropriate for Mr. Denbow. Under the SCCP Policy (Procedure K), he would have had to appeal the unit team's decision to me.
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10. Procedure K of the SCCP Policy (attached) states that an inmate "wishing to appeal denial ... of approval for his or her transfer to the supervised community confinement program may submit the appeal to the Department's Director of Classification [me] within five (5) working days of receiving the decision. The Department's Director of Classification is the final authority for this appeal (no further appeals are allowed)."
11. Mr. Denbow did not appeal the unit team's March 31, 2020 decision that SCCP participation was inappropriate.
12. Even though Mr. Denbow's appeal of the decision needed to be directed to me, under the SCCP policy, it is possible that Mr. Denbow could have misunderstood and appealed the decision to the \Varden of Mountain View. I have been informed by Warden JeffMorin of Mountainview and by Mr. Denbow's current caseworker, Hollie Brewer, that Mr. Denbow did not appeal the Unit Team's determination that SCCP pa1ticipation is not appropriate for Mr. Denbow.
13. I have personally reviewed Mr. Denbow's records and his potential for SCCP release, as part of a review the Classification Department conducted of those inmates who have medical conditions placing them at a greater risk from COVID-19. I noted that Mr. Denbow has a lengthy criminal history, including convictions for burglaries, thefts, assault, operating under the influence, operating after habitual offender revocation, failing to report, failure to submit to arrest, probation violations and revocations, and forgery,
His cdminal record spans more than 35 years. I also noted that Mr. Denbow would be homeless if released to the community, which was one of the reasons that his unit team denied his SCCP application in March 2020.Due to his lack of housing, Mr.
3

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Denbow is not eligible for SCCP, and even if Mr. Denbow could find housing, these other factors make him a poor candidate for SCCP.

&- DATED: </- cu

0
BENJAMIN BEAL

STATE OF MAINE KENNEBEC, ss.
Personally appeared before me this I{, day of June 2020, the above named Benjamin
Beal and made an oath that the foregoing is�and correct and based on his personal knowledge.

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STATE OF MAINE OXFORD,ss.
JOSEPH DENBOW, Petitioner
V.
STATE OF MAINE, Respondent

SUPERIOR COURT UNIFIED CRIMINAL DOCK.ET DOCKET NO. CR-19-1755
) ) ) ) AFFIDAVIT OF HOLLIE BREWER ) ) ) ) )

Hollie Brewer, duly sworn, states that the following is true and correct and based on her personal knowledge:
1. I am a Correctional Caseworker for the Maine Department of Corrections (MDOC or "the Department"), and I work at Mountain View Correctional Facility. I have been a Caseworker at Mountain View for nearly eight years. I have personal knowledge of the facts contained in this affidavit. In preparing this affidavit, I also reviewed records regularly kept by MDOC that are available to me and that I rely on in my official duties.
2. Petitioner Joseph Denbow is currently in the custody ofMDOC and is housed at the Mountain View Correctional Facility. Mr. Denbow is an inmate who is currently assigned to my caseload. This means that I meet with Mr. Denbow periodically (and more often, ifhe requests it) to discuss his plans for post-release, programs that he participates in while incarcerated, and other issues.
3. Mr. Denbow was also assigned to my caseload in 2013, when he was serving a different term of incarceration. At that time, I helped him apply for financial aid to attend Beal College and to complete the Beal College application.

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4. In 2013, Mr. Denbow applied for and was approved to participate in the Supervised Community Confinement Program (SCCP, governed by 34-A M.R.S. § 3036-A), where he lived in the community and attended a welding program at Beal College. Inmates on SCCP are supervised by the MDOC probation department (Community Corrections).
5. The Warden of Mountain View Correctional Facility (Jeff Morin) personally drove Mr. Denbow to the orientation program for Beal College, before his release to the SCCP program in 2013. I personally took Mr. Denbow to Beal College before his release on SCCP to register for classes.
6. When Mr. Denbow began SCCP, he was released from Mountain View Correctional Facility to the community to attend the welding program at Beal College.
7. As dictated by statute, before release to SCCP, Mr. Denbow signed a list of conditions of his release to SCCP and agreed to abide by those terms.
8. While in the community, Mr. Denbow violated the terms of the SCCP program by dropping out of school and having unapproved visitors at his home. As a result, he was required to return to Mountain View to finish his sentence.
9. After finishing his earlier sentence and being released to the community, Mr. Denbow returned to the Department's custody and currently resides at Mountain View. His current projected release date is August 28, 2020.
I 0. As his caseworker, I meet with Mr. Denbow to discuss his plans upon release, among other issues. Mr. Denbow submitted a re-entry questionnaire to me on January 3, 2020. 1
1 I have a copy of this form and other relevant materials, but they contain information that is potentially confidential under state and federal law and cannot be disclosed with a Court order. Thus, I am reciting the relevant, non-confidential information from these materials. I have been informed by counsel for MDOC that Mr. Denbow's attorney Emma Bond has a copy of these materials.
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On this form, Mr. Denbow wrote that he was "not sure" where he would be living following release and that he would "need help with apt., house, etc." He also indicated. he would need to apply for housing programs such as Bridging Rental Assistance Program (BRAP)2/She1ter care, disability and MaineCare, food stamps, and possibly general assistance. He also stated he would need two weeks of medication upon release.
11. On March 22, 2020, Mr. Denbow completed. the "Community Custody or Program Application" for the SCCP program and submitted it to the unit management team ("unit team"). The unit team is a group that meets to discuss inmates' community program applications and other decisions regarding inmate housing and classification issues.
12. On March 31, 2020, Mr. Denbow's unit management team ("unit team") discussed his application. I was part ofthat March 31 unit team meeting, as were Unit Manager Suzan Ackerman, Unit Clerk Dyana White, Correctional Care and Treatment Worker June Allen, and Community Program Coordinator Thomas Kirlin. Inmates are not generally present during the part of unit team meetings where SCCP participation and eligibility are discussed, because the unit team may discuss victim statements and the inmate's risk assessment. Mr. Denbow was not present at the March 31 meeting, and he did not make any request to be present at that meeting.
13. On March 31, the unit team reviewed documentation regarding Mr. Denbow from the Department's offender management database ("CORIS"), including his return to prison from SCCP in 2013 for violating the terms of the program. CORIS also reflected that while on SCCP in 2013, he was allegedly drinking and had begun a roman.tic relationship without informing his probation officer. The unit team also discussed Mr. Denbow's
2 To be eligible for BRAP, an inmate must have ''no subsequent identified residence" (meaning the inmate is homeless).
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he unit team discussed all of these factors on March 31, 2020.
14. On March 31, 2020, the unit team also discussed Mr. Denbow's re-entry questionnaire and the fact that he had no home to go to for supervised community confinement, and that Mr. Denbow's fiance also does not have her own housing.
15. On March 31, 2020, Unit Clerk Dyana White documented the unit team's decision to deny Mr. Denbow's SCCP application on the Program Application. She checked the box for "denied," and noted the date of the review (3/31/20). She also wrote, "Previous SCCP failure." The 2013 program failure is one of the reasons the unit team denied his application; Mr. Denbow' s lack of appropriate housing is another reason.
16. Under the SCCP Policy, Mr. Denbow would have had to appeal the unit team's decision to the Director of Classification.
17. Even though, under the SCCP policy, Mr. Denbow's appeal of the decision would need to have been directed to the Director ofClassification, it is possible that Mr. Denbow could have misunderstood the appeal process and thought that he needed to appeal the decision to the Warden of Mountain View, as he would other unit team decisions.
18. Mr. Denbow did not infonn me that be planned to appeal the decision, and Warden Jeff Morin of Mountain View informed me that Mr. Denbow did not appeal the decision to the Warden's Office.
19. Mr. Denbow is assigned as a grounds maintenance worker at Mountain View. Over the last three months, I have interacted with Mr. Denbow approximately five times, and
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every time I have met with him, he has been able to walk across campus and up the stairs to my office without assistance.
20. Smoking is permitted at the Mountain View Correctional Facility in an outside area known as the "smoke shack." The number of inmates permitted at the smoke shack at one time is currently reduced, to allow the inmates to socially distance.
21. I am sensitive to the smell ofcigarette smoke, and I have smelled cigarette smoke on Mr. Denbow's clothing. When I have called his dorm, staff there have reported that they have seen him smoking at the smoke shack. I have reviewed records from the Mountain View commissary indicating that Mr. Denbow regularly purchases 10-15 packages of cigarettes per week. Inmates are not permitted to give away or sell cigarettes or other items to other inmates.
22. Inmates at Mountain View can obtain smoking cessation aids by asking their caseworker to set up a call to the Maine Tobacco Helpline, which then sends free lozenges, gum, and patches to inmates through their caseworker.
23. Mr. Denbow lives in Dorm 3, where I am informed that he currently has three roommates. His dorm houses approximately 50 inmates. Dorm 3 has two floors; each floor is comprised ofapproximately 25 people. Each floor has a communal bathroom and shower.
24. In light of the risks of COVID-19, Mountain View has implemented social distancing to the furthest extent possible. For example, each floor of Mr. Denbow's dormitory is going to the chow hall every other day. On the days in between, the inmates on that floor eat in their housing units.
25. Inmates at Mountain View have access to a disinfecting agent and rags to clean their cells and any other surfaces they wish to clean.
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26. Due to COVID-19, Mountain View instituted increased cleaning. Inmate cleaning crews clean communal areas three to four times per day.
27. Inmates at Mountain View have access to alcohol-based hand sanitizer. This hand sanitizer is kept in an officer-only area for distribution to inmates because ofits 70% alcohol content and potential for abuse. Warden Morin sent a memo to staff and inmates about its intended use and distribution in April 2020, and the memo is posted and visible to inmates.
28. Inmates at Mountain View have been provided with two cloth masks and are required to wear them when they are outside oftheir room or dorm floor, ifthey are not able to stay six feet from other people. Exceptions to this rule are limited to situations in which mask wearing is not practical, such as while inmates are eating in the chow hall.. In Mr. Denbow's case, he only attends the chow hall with other inmates from his floor, as discussed above. IfMr. Denbow leaves his dorm to go to another part ofthe facility, he and other inmates are required to wear masks ifthey cannot socially distance.
29. Staff at Mountain View are also required to wear masks when interacting with inmates. Staff are not required to wear a mask if they are alone in their office, behind a closed door.
30. I have worn a cloth mask every time I interacted with Mr. Denbow since midApril 2020.
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31. Inmates at Mountain View have been informed that they can be disciplined for not wearing masks where required.

DATED: G- L\- ;;2.D�O

CDh:,u,>Q., '::i1t::ic;,.,._,or,
HOLLIE BREWER

STATE OF MAINE PENOBSCOT, ss.
Personally appeared before me this Ji..!!}_ day of June 2020, the above named Hollie
Brewer and made an oath that the foregoing is true and correct and based on his personal knowledge.

��-� TARYPU�C
Print Name: s;,) lA,n e ft. IJ II .,r-f

JUNE A. ALLEN
Notary Public-Maine My Commission Expires
November 05. 2026

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STATE OF MAINE OXFORD, ss.
JOSEPH DENBOW, Petitioner, v. STATE OF MAINE, Respondent.

UNIFIED CRIMINAL DOCKET LOCATION: South Paris Docket No.: ________________
) ) ) MEMORANDUM OF LAW IN SUPPORT ) OF EMERGENCY PETITION FOR POST) CONVICTION REVIEW ) ) ) )

Petitioner, Joseph Denbow, brings this petition for post-conviction review challenging a prison sentence that, in the COVID-19 pandemic, risks becoming a death sentence. At 54, Mr. Denbow suffers from chronic disease that places him at high risk of death or serious injury if and when he is exposed to the COVID-19 virus in the closed congregate setting of prison. Mr. Denbow respectfully requests that the Court declare his sentence to be unconstitutionally disproportionate to his nonviolent offenses and to order his release on probation to safely quarantine in the community.
FACTUAL BACKGROUND I. Dangers of COVID-19 In the Prison Setting
COVID-19 is a highly infectious and deadly virus that has sickened hundreds of thousands of people worldwide. Although COVID-19 can be deadly in any demographic, those with chronic underlying health conditions face particularly high risk of death. According to the CDC, high-risk conditions include: asthma and chronic lung disease, serious heart conditions, conditions that cause a person to be immunocompromised (including cancer treatment) and prolonged use of corticosteroids, severe obesity, diabetes, chronic kidney disease, and liver
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disease.1 Even for the general population, COVID-19 is about ten times more deadly than the seasonal flu.2 High-risk groups with underlying chronic conditions face an even greater risk of
death. Early reports estimate that the mortality rate for those with cardiovascular disease was
13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.3 Those who survive may face permanent harm such as difficulties with walking or brain functioning, or permanent reduction of lung function.4
Without any known cure or vaccine for this highly infectious disease, prevention is
crucial—through frequent handwashing and physical distancing. According to the Director for the Maine CDC, “[p]hysical distancing is the best vaccine that we have.”5 Indeed, across the
state, the country, and the world, people are being ordered to stay at home and, when they must
leave for essential reasons, to remain six feet apart from others. The CDC warns that, for people at high risk of death from COVID-19, social distancing is even more important.6
Yet physical distancing is currently impossible in Maine Department of Corrections
facilities, in which prisoners eat their meals cheek to jowl, share bathrooms with dozens of other
1 At Risk for Severe Illness, U.S. Centers for Disease Control and Prevention (last accessed Apr. 5, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html. 2 Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, WALL ST. J. (Mar. 10, 2020, 12:49 PM), https://cutt.ly/itEmi8j. 3 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12 https://cutt.ly/KtD3ALr (finding fatality rates for patients with COVID-19 and comorbid conditions to be: “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer”). 4 Adrianna Rodriguez, Some severe cases of coronavirus could result in brain damage, inability to walk, USA TODAY (Mar. 19, 2020), https://www.usatoday.com/story/news/health/2020/03/19/coronavirus-what-acuterespiratory-distress-syndrome-ards/5066412002/ (quoting Dr. Nuala Meyer, associate professor at the University of Pennsylvania Perelman School of Medicine); Tian-Yuan Xiong et al., Coronaviruses and the Cardiovascular System: Acute and Long-Term Implications, EURO. HEART J, ehaa231 (2020). 5 https://www.youtube.com/watch?v=nX4ljxGU4VI . 6 Social Distancing, U.S. Centers for Disease Control and Prevention (last accessed Apr. 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.
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inmates, sleep two or four to a room, and have close contact with prison staff who are not equipped with masks, gloves, or personal protective equipment. Under similar conditions, a seasonal flu epidemic sickened a large number of inmates and staff in 2011, even killing one prisoner.7 The difference is that once COVID-19 infiltrates the prisons, it will be far more deadly. As one epidemiologist explained: “In such an epidemic, a jail or prison sentence . . . could become a death sentence, especially for individuals over 50 or with chronic health conditions.”8 II. BACKGROUND SPECIFIC TO PETITIONER
Mr. Denbow’s sentence places him in mortal danger. At 54, Mr. Denbow is immunecompromised from a prior bout with cancer and also suffers from chronic obstructive pulmonary disease and asthma. Mr. Denbow is prescribed multiple different medications for his asthma and he relies on his albuterol inhaler several times a day. People with asthma are at particularly high risk of developing ARDS (acute respiratory distress syndrome), which can lead to fluid build-up in the lungs, inability to process oxygen, and, ultimately, organ failure and death.9 Accordingly, due to his constellation of conditions, Mr. Denbow is at extremely high risk of both contracting the virus and experiencing serious complications and even death.
7 Influenza Outbreaks at Two Correctional Facilities – Maine, March 2011, Centers for Disease Control and Prevention (Apr. 6, 2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 8 See statements of Dr. Sharon McDonnell and Dr. Lani Graham, accompanying a March 30, 2020 letter filed by the Maine Association of Criminal Defense Lawyers and the ACLU of Maine Foundation to the Chiefs of the Maine Supreme Judicial Court, the Superior Court, and the District Court. Dr. McDonnell’s and Dr. Graham’s statements are attached to this filing. 9 Adrianna Rodriguez, Some severe cases of coronavirus could result in brain damage, inability to walk, USA TODAY (Mar. 19, 2020), https://www.usatoday.com/story/news/health/2020/03/19/coronavirus-what-acuterespiratory-distress-syndrome-ards/5066412002/ (quoting Dr. Nuala Meyer, associate professor at the University of Pennsylvania Perelman School of Medicine); Tian-Yuan Xiong et al., Coronaviruses and the Cardiovascular System: Acute and Long-Term Implications, EURO. HEART J, ehaa231 (2020).
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Mr. Denbow is currently incarcerated in at the Mountain View Correctional Facility in Charleston, Maine. He is incarcerated for nonviolent and nondangerous offenses and set to be released in August of this year. After accounting for good time, Mr. Denbow has already served most of his sentence. Before the Department of Corrections shut down the program because of COVID-19, Mr. Denbow traveled to the community multiple times a week to work.
Yet it is impossible for Mr. Denbow to protect himself from infection in prison. Although he keeps to himself as much as possible, he cannot avoid close contact with other prisoners and staff. He shares a dorm with more than 50 other man, eats meals inches away from other prisoners, and shares bathroom stalls, showers, and sinks with dozens of others who could be infected. Even at night, he sleeps in a small room with three other people. In similar settings across the country and the world, COVID-19 has spread like wildfire once it enters the facility, sickening and killing prisoners and staff alike.10 The Mountain View facility is in Penobscot County, which is 98% likely to experience an epidemic from COVID 19.11
DISCUSSION In these extraordinary times, the mortal danger to Mr. Denbow renders his sentence unconstitutional as disproportionate under the Maine Constitution and cruel and unusual punishment under both the Federal and Maine Constitutions. The post-conviction review process is an appropriate vehicle to challenge this disproportionate sentence and to seek release.
10 See, e.g., Zak Cheney-Rice, Rikers Reports Its First COVID-Related Prisoner Death, New York Magazine (Apr. 6, 2020), https://nymag.com/intelligencer/2020/04/rikers-island-reports-its-first-covid-related-prisoner-death.html, A Rikers inmates has died of complications from the virus, New York Times, (Apr. 5, 2020), https://www.nytimes.com/2020/04/05/nyregion/coronavirus-new-york-update.html#link-3236f5ee; A jail in Chicago is now the largest-known source of U.S. infections, New York Times, (Apr. 8, 2020), available at https://www.nytimes.com/2020/04/08/us/coronavirus-live-updates.html#link-7634e187 (noting at least 387 cases can be linked to Cook County jail in Chicago, more than other high-profile outbreaks in closed congregate settings). 11 Erin Rhoda, The Maine counties most likely to see sustained spread of the coronavirus, Bangor Daily News (Apr. 10, 2020), https://bangordailynews.com/2020/04/10/mainefocus/the-maine-counties-most-likely-to-see-sustainedspread-of-the-coronavirus/?mc_cid=6c31853839&mc_eid=9579286a44.
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Accordingly, we respectfully request that the court immediately order Mr. Denbow to be safely released to shelter in place at home. Each of these issues is discussed in further detail below. I. Mr. Denbow’s Sentence Is Unconstitutional
A. COVID-19 Has Transformed Mr. Denbow’s Sentence to One Imposing a High Risk of Death, which Is Unconstitutionally Disproportionate to his Offense
In normal times, a sentence that is within the range dictated by the legislature is likely to fall within the proportionality guarantee in the Maine Constitution. Me. Const. Art. I, § 9. In this extraordinary pandemic, however, judicial intervention is necessary to prevent Mr. Denbow from being punished by risk of death for a nonviolent offense.
Article I, section 9 requires that “penalties and punishments shall be proportioned to the offense.” Me. Const. Art. I, § 9. Under this proportionality guarantee, the Maine constitution provides for “a broader proportionality review” than the federal constitution. State v. Stanislaw, 2013 ME 43, ¶¶ 26, 65 A.3d 1242 (citing Harmelin v. Michigan, 501 U.S. 957, 965 (1991)). The Court has traditionally applied a two-part test to determine whether a sentence is excessive. First, it compares “the gravity of the offense” with “the severity of the sentence.” Stanislaw, 2013 ME 43, ¶ 29 (citations omitted). Second, if that comparison suggests gross disproportionality, the Court compares “the defendant’s sentence with the sentences received by other offenders in the same jurisdiction.” Id. (citations omitted).
Applying this analysis, a sentence imposing a high risk of death is grossly disproportionate to the “gravity” of Mr Denbow’s nonviolent offenses. He is currently serving two years of imprisonment for aggravated forgery and operating a motor vehicle after habitual offender revocation. The “aggravated forgery” arose from Mr. Denbow’s poor judgment, in the moment, to give his brother’s name to the officer who pulled him over for driving on a revoked license. Mr. Denbow promptly corrected this misrepresentation, and, in any event, has already
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served the majority of his sentence in prison for these offenses. While in prison, Mr. Denbow has earned good time for, among other things, working in the community. Forcing Mr. Denbow to remain incarcerated until August 28, 2020, his current earliest projected release date,12 would expose him to an unacceptably high risk of exposure to the virus and resulting risk of death.13 A sentence imposing a high risk of death is grossly disproportionate to Mr. Denbow’s offenses.
Under the second prong of the proportionality analysis, moreover, imposing death or serious risk of death is not a sentence imposed on others for forgery or driving on a revoked license. Stanislaw, 2013 ME 43, ¶ 29 (citations omitted). Accordingly, both factors militate in favor of holding that Mr. Denbow’s sentence, in the time of COVID-19, is grossly disproportionate in violation of the Constitution. See Me. Const. Art. I, § 9.
Mr. Denbow’s sentence also includes two years of probation, which is not disproportionate and would allow Mr. Denbow to safely protect himself by socially distancing at home.
B. A Sentence that Prohibits Mr. Denbow from Physical Distancing Is Cruel and Unusual Punishment
Mr. Denbow’s sentence also imposes an unsafe, life-threatening sentence in violation of the Federal and State Constitutions. See U.S. Const. Amend. 8; Me. Const. Art. I, § 9.14 “The
12 Joseph Denbow, Maine Inmate Search, available at https://www1.maine.gov/cgi-bin/online/mdoc/search-anddeposit/detail.pl?mdoc_number1=33030 (last visited Apr. 13, 2020). 13 It is the sentence of imprisonment that imposes this punishment. As another court has recognized, precautionary measures relating to hygiene “are inadequate to sufficiently decrease the substantial likelihood that Petitioner will contract COVID-19.” See Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *8 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020). Indeed, “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.” Id. In such cases, the prison sentence itself—which mandates living in a closed congregate setting with dozens of other prisoners and staff—imposes a high risk of death. 14 Under the Eighth Amendment, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. Amend. 8. The Maine Constitution provides the same. Me. Const. Art. I, § 9.
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Eighth Amendment does not mention disproportionate punishments explicitly, but rather incorporates the principle that a grossly disproportionate punishment is cruel and unusual.” State v. Ward, 2011 ME 74, ¶ 16, 21 A.3d 1033, 1037 (citing Graham v. Florida, 560 U.S. 48 (2010)) “The concept of proportionality is central to the Eighth Amendment.” Graham, 560 U.S. at 59. “To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to “ ‘the evolving standards of decency that mark the progress of a maturing society.’” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)).
In this deadly pandemic, a sentence of imprisonment for medically vulnerable prisoners implicates the Eighth Amendment’s prohibition against cruel and unusual punishment. It is “cruel and unusual punishment to hold convicted criminals in unsafe conditions,” Youngberg v. Romeo, 457 U.S. 307, 315–316 (1982). Even when a “possible infection might not affect all those exposed,” the risk alone can be “unsafe” or “life-threatening.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Knowingly exposing prisoners to such infectious disease violates the prohibition against cruel and unusual punishment. See, e.g., Hutto v. Finney, 437 U.S. 678, 682685 (1978) (recognizing the need for a remedy where prisoners were crowded into cells and some had infectious diseases). For Mr. Denbow, imprisonment is synonymous with the inability to physically distance, and, consequently, with a high risk of death from COVID-19. Although the prison has taken steps to increase sanitation and hygiene, the prison setting makes it impossible for Mr. Denbow to protect against infectious but asymptomatic carriers of COVID19, who may be eating meals or sharing a dorm with him, unbeknownst to Mr. Denbow or the prison staff.15 Mr. Denbow’s sentence of imprisonment exposes him to a high risk of infection

15 See Malam, 2020 WL 1672662, at *8.

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and correspondingly high risk of death— an “unsafe, life-threatening condition” in violation of the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 33 (1993). II. Post-Conviction Review Is an Appropriate Method to Seek Release from
Unconstitutional Incarceration “The statutory remedy of post-conviction review, 15 M.R.S. §§ 2121-2132, was intended to fully replace and implement the constitutional right of post-conviction habeas corpus as it pertains to a post-sentencing proceeding that occurs during the course of an offender’s sentence.” Petgrave v. State, 2019 ME 72, ¶ 11, 208 A.3d 371, 374 (citing James v. State, 2008 ME 122, ¶ 12, 953 A.2d 1152). Under the Maine Constitution, “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Me. Const. Art. I, § 10. “The writ of habeas corpus traditionally has been accepted as the specific instrument to obtain release from unlawful confinement, or to deliver someone from unlawful custody.” 39 Am. Jur. 2d Habeas Corpus § 1 (citations omitted). The purpose of post-conviction review statutes is “to require that the attack, which might have been made in some other court through resort to habeas corpus, be made by motion in the sentencing court, unless it appears that the remedy by motion is inadequate or ineffective to test the legality of the prisoner's detention.” 39 Am. Jur. 2d Habeas Corpus § 9 (emphasis added). In cases where the statutory relief is inadequate, the underlying constitutional guarantee of the great writ remains available. See id.; see also Kimball v. State, 490 A.2d 653 (Me. 1985), abrogated on other grounds by Manly v. State, 2015 ME 117, 123 A.3d 219. For example, when a claim “would have been recognized in a petition for a writ of habeas corpus at common law,” the Maine Supreme Judicial Court held there was jurisdiction under the post-conviction review statute to adjudicate it. Id.
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In this case, post-conviction review is an appropriate vehicle for Mr. Denbow to seek release from his unconstitutional sentence. As detailed in the petition, Mr. Denbow satisfies each of the requirements for post-conviction relief, including (1) restraint or impediment under 15 M.R.S. § 2124, (2) prior exhaustion of any available remedies under 15 M.R.S. § 2126,16 (3) absence of waiver under 15 M.R.S. § 2128, (4) timely filing of petition under 15 M.R.S. § 2128B, and (5) stating of a ground upon which post-conviction relief can be granted under 15 M.R.S. § 2125. See M.R. Crim. P. 66. On the last prong specifically, Mr. Denbow’s “challenged criminal . . . sentence is unlawful” in violation of the Maine and Federal Constitutions.17 See 15 M.R.S. § 2125. Accordingly, post-conviction relief is not only appropriate, but required, in this case.
Finally, because of imminent dangers faced by Petitioner, any response and hearing on this petition should be expedited as quickly as possible. Under Rule 70(a), Petitioner respectfully requests at the court “promptly examine” the petition and grant expedited relief as detailed in the attached motion for release on bail.
16 Mr. Denbow could not have predicted the COVID-19 pandemic last May, when he had the opportunity to file a direct appeal of his sentence. Additionally, Mr. Denbow has applied for release under the community supervision process, but was denied due to cancellation of a prior community release for a non-safety-related reason; specifically, Mr. Denbow’s cancer diagnosis and treatment had prevented him from satisfying the mandatory work requirements. The imminent risks from this fast-paced pandemic mean that no other avenues for relief are available to Denbow, necessitating review from this Court. 17 In the alternative, this petition challenges an unlawful post-sentencing proceeding. See 15 M.R.S. § 2125. Although the definition of “post-sentencing proceeding” excludes cancellation of furlough or community release, 15 M.R.S. § 2121(2), that is not what happened here; Mr. Denbow simply was not awarded relief in the first place. To the extent the Court determines that this action challenges an administrative action not included in the definition of “post-sentencing proceeding,” moreover, Petitioner respectfully requests that the Court exercise its equitable authority to convert the action to an emergency complaint under Title 5, chapter 375, subchapter 7. See 15 M.R.S. § 2123-A. This Court’s general jurisdiction over petitions sounding in habeas relief. 14 M.R.S. §§ 5301, 5501, provides an additional basis for the exercise of jurisdiction and the provision of relief.
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CONCLUSION For these reasons and the reasons stated in the petition for post-conviction review, Mr. Denbow respectfully requests expedited review of his petition and entry of an order declaring his sentence of imprisonment to be unconstitutional and ordering release on probation. Respectfully submitted, this 13th day of April, 2020,
/s/ Emma E. Bond Emma E. Bond (Bar No. 5211) Zachary L. Heiden (Bar No. 9476) American Civil Liberties Union of Maine Foundation P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 (207) 619-6224 ebond@aclumaine.org zheiden@aclumaine.org Counsel for Petitioner
I certify that there are good grounds to support this pleading, that it complies with PMO-SJC-3, and that it is not being filed to cause any delay.
/s/ Emma E. Bond Emma E. Bond (Bar No. 5211) P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 ebond@aclumaine.org
10
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CERTIFICATE OF SERVICE I, Emma E. Bond, hereby certify that on April 13, 2020, the above MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY PETITION FOR POST-CONVICTION REVIEW was sent to the following:
District Attorney Andrew Robinson 55 Lisbon Street, 2nd Floor Lewiston, ME 04240 Andrew.robinson@maineprosecutors.com
/s/ Emma E. Bond_____________ Emma E. Bond (Bar No. 5211) American Civil Liberties Union of Maine Foundation P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 ebond@aclumaine.org Counsel for Plaintiff
11
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Case 1:20-cv-00175-JAW Document 31-5 Filed 06/22/20 Page 1 of 6 PageID #: 724

STATE OF MAINE OXFORD, ss.
JOSEPH DENBOW, Petitioner, v. STATE OF MAINE, Respondent.

UNIFIED CRIMINAL DOCKET LOCATION: South Paris Docket No.: ________________
) ) ) EMERGENCY MOTION FOR RELEASE ) ON BAIL AND LEAVE TO FILE ) UNSWORN PETITION ) ) ) )

INTRODUCTION Pursuant to 15 M.R.S. § 2129(4) and Rule 74 of the Maine Rules of Criminal Procedure, Petitioner, Joseph Denbow, respectfully requests release on bail pending adjudication of his petition for post-conviction relief. Mr. Denbow suffers from numerous chronic health conditions, placing him at serious risk of death from COVID-19 in the prison setting. The totality of factors, including Mr. Denbow’s risk of death in prison, the low risk posed by his release, and his indigent status all militate in favor of immediate release on personal recognizance (“PR”) bail. In light of the mortal dangers posed to Mr. Denbow by continued incarceration, emergency relief is requested within 48 hours.
DISCUSSION By statute, this Court “may order the release of the petitioner [seeking post-conviction review] on bail at such time and under such circumstances and conditions as the Supreme Judicial Court provides by rule.” 15 M.R.S. § 2129(4). Rule 74 of the Maine Criminal Rules of Procedure, in turn, allows for release of the petitioner on bail if: (1) “the petitioner has a reasonable likelihood of prevailing on the petition,” (2) “release on bail is appropriate given the
1
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crime and the nature of the ultimate relief contemplated by the court if the petitioner were to prevail,” and (3) “the standards and conditions governing bail contained in 15 M.R.S. § 1051(2) and (3) are satisfied.” M. R. Civ. P. 74(b).
Each of these standards is satisfied here. First, Mr. Denbow is likely to prevail on the merits of his petition. As described in the memorandum of law filed with this motion, the COVID-19 pandemic has transformed Mr. Denbow’s sentence to one imposing a high risk of death. Such a sentence is grossly disproportionate to Mr. Denbow’s nonviolent offenses and in violation of the Maine and United States Constitutions. Second, release on bail is appropriate given the nonviolent nature of Mr. Denbow’s driving and forgery offenses, and is consistent with the petition’s request to enable Mr. Denbow to physically distance in the community during the COVID-19 pandemic. Third, as discussed below, the standards listed in 15 M.R.S. § 1051(2) and (3) are satisfied in this case.
Specifically, section 1051(2) provides that post-conviction bail may only be provided if the judge or justice has “probable cause” to believe that:
A. There is no substantial risk that the defendant will fail to appear as required and will not otherwise pose a substantial risk to the integrity of the judicial process; B. There is no substantial risk that the defendant will pose a danger to another or to the community; and C. There is no substantial risk that the defendant will commit new criminal conduct. 15 M.R.S. § 1051(2). Each of these factors supports release. There is no substantial risk that Mr. Denbow would fail to appear for future court dates because, upon release, Mr. Denbow would live with his fiancé in the community where he can safely perform physical distancing while remaining in proximity to the court. Release is particularly consistent with the “integrity of the judicial process” given that Mr. Denbow has already served the majority of his sentence and is
2
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set to be released in August 2020. Nor is there any substantial risk that releasing Mr. Denbow
would pose any risk to the community. To the contrary, forcing Mr. Denbow to remain in
prison—where he is likely to be exposed to the virus, spread it to others, and require a hospital
bed and other scarce medical resources—is where the true danger to the community lies.1
Finally, there is no substantial risk that Mr. Denbow will commit new criminal conduct. Rather,
he simply wishes to remain safe at home with his fiancé during this state of emergency.2
Furthermore, aside from the bail conditions that are mandatory for post-conviction bail,
no additional conditions or money bail are required.3 See, e.g., 15 M.R.S. § 1051(3). When a
judge decides to set bail in the post-conviction context, the factors set forth in section 1026
provide the general framework. See 15 M.R.S. § 1051(2) (referring to section 1026 and stating
that “[i]f the judge or justice decides to set post-conviction bail for a defendant, the judge or
1 People with asthma are more likely to require hospitalization and a ventilator than people without a chronic health condition. Indeed, of those hospitalized for COVID-19, 89% had some underlying health condition and 17% had chronic lung disease specifically. Shikha Garg, M.D, et al., Hospitalization Rates and Characteristics of Patients Hospitalized with LaboratoryConfirmed Coronavirus Disease 2019 – COVID-NET, 14 states, March 1-30, 2020, Centers for Disease Control and Prevention (Apr. 8, 2020), available at https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm. 2 The remaining factors for consideration under section 1051(2) likewise support release. These factors include:
factors relevant to preconviction bail listed in section 1026, as well as the facts proved at trial, the length of the term of imprisonment imposed and any previous unexcused failure to appear as required before any court or the defendant’s prior failure to obey an order or judgment of any court, including, but not limited to, violating a protection from abuse order pursuant to Title 19, section 769 or Title 19-A, section 4011. 15 M.R.S. § 1051(2). 3 “Every order for post-conviction release of a defendant must include a waiver of extradition by the defendant as well as a condition of bail that the defendant refrain from new criminal conduct and not violate any pending protection from abuse order pursuant to Title 19, section 769, or Title 19-A, section 4011.” 15 M.R.S. § 1051(1).
3
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justice shall apply the same factors in setting the kind and amount of that bail”). Under section 1026, release must be “on personal recognizance or upon execution of an unsecured appearance bond,” without any conditions, unless doing so would undermine the purposes of the Bail Code. See 15 M.R.S. § 1026(2), (3). Payment of money bail or additional conditions of release are required only upon a showing of need. See id. In this case, there is no reason to require cash bail or additional conditions of release. Not only does release of Mr. Denbow pose minimal risk, but his indigent status and imminent risk of death in prison require speedy release uninhibited by unnecessary conditions.
Petitioner respectfully requests the Court’s expedited consideration of this motion for bail. Although no positive tests for COVID-19 have been publicly reported at the Mountain View facility, the prevalence of asymptomatic carriers and the dearth of testing mean that COVID-19 may be spreading in the facility at this very moment. Immediate relief is required to protect Mr. Denbow from unnecessary risk of death.
Finally, Petitioner respectfully request leave to file an unsworn petition for postconviction review, signed by his attorney. Given the expedited nature of this request and COVID-19-related restrictions on visitation, there was no time or opportunity for an in-person meeting for Mr. Denbow to physically sign the petition before filing. By electronically signing the petition, Mr. Denbow’s attorney represents that, to the best of her knowledge, information, and belief there is good ground to support it.
CONCLUSION For these reasons, Petitioner respectfully requests that the Court provide expedited consideration of this motion within 48 hours, grant release on PR bail, and permit filing of the unsworn petition.
4
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Case 1:20-cv-00175-JAW Document 31-5 Filed 06/22/20 Page 5 of 6 PageID #: 728
Respectfully submitted, this 13th day of April, 2020,
/s/ Emma E. Bond Emma E. Bond (Bar No. 5211) Zachary L. Heiden (Bar No. 9476) American Civil Liberties Union of Maine Foundation P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 (207) 619-6224 ebond@aclumaine.org zheiden@aclumaine.org Counsel for Petitioner
I certify that there are good grounds to support this pleading, that it complies with PMO-SJC-3, and that it is not being filed to cause any delay.
/s/ Emma E. Bond Emma E. Bond (Bar No. 5211) P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 ebond@aclumaine.org
5
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Case 1:20-cv-00175-JAW Document 31-5 Filed 06/22/20 Page 6 of 6 PageID #: 729
CERTIFICATE OF SERVICE I, Emma E. Bond, hereby certify that on April 13, 2020, the above EMERGENCY MOTION FOR RELEASE ON BAIL AND LEAVE TO FILE UNSWORN PETITION was sent to the following:
District Attorney Andrew Robinson 55 Lisbon Street, 2nd Floor Lewiston, ME 04240 Andrew.robinson@maineprosecutors.com
/s/ Emma E. Bond_____________ Emma E. Bond (Bar No. 5211) American Civil Liberties Union of Maine Foundation P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 ebond@aclumaine.org Counsel for Plaintiff
6
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App.033

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App.034

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App.035

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App.036

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App.037

Case 1:20-cv-00175-JAW Document 31-8 Filed 06/22/20 Page 1 of 4 PageID #: 738

STATE OF MAINE OXFORD, ss.
JOSEPH DENBOW, Petitioner
v. STATE OF MAINE,
Respondent

UNIFIED CRIMINAL COURT LOCATION: SOUTH PARIS Docket No.: CR-2020-226 (Post-Conviction Review)
) ) ) RESPONDENT’S OPPOSITION ) TO EMERGENCY MOTION FOR ) HEARING ON POST-CONVICTION ) BAIL ) ) )

Now comes the Respondent, State of Maine, by and through Assistant Attorney General Jillian R. O’Brien, and hereby objects to Petitioner Joseph Denbow’s Emergency Motion for Hearing on Post-Conviction Bail. Petitioner is an inmate serving a prison sentence in the custody of the Maine Department of Corrections (“MDOC”) after pleading guilty to certain crimes. He urges the Court to hold an emergency hearing to determine whether to release him on bail pending the Court’s consideration of a petition for post-conviction review, in which he claims he should be immediately released because being in prison during the COVID-19 pandemic amounts to cruel and unusual punishment. (Petition p. 3.) But Petitioner should not be released on bail while the Court considers the petition, and the Court need not hold a hearing to decide the issue. Petitioner is not attacking the validity of his guilty plea or sentence; he is challenging the conditions of his confinement in claiming that he is at risk of contracting COVID-19. His situation is not unique; every inmate and, indeed, every member of the community is at risk of contracting the virus. If Petitioner is granted bail now, there is no reason that the 1,989 other Maine prison inmates would

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not also potentially be entitled to bail.1 A petition for post-conviction review is not the proper vehicle to challenge MDOC’s response to COVID-19, and neither Petitioner nor the other 1,989 inmates in prison are entitled to immediately move into the community while MDOC and the State determine how to best manage this global crisis.
As discussed in the State’s opposition to the motion for bail, the Court cannot make an informed determination regarding Petitioner’s likelihood of success on the merits at this early stage of the post-conviction review, as required for determining whether bail is appropriate under M.R. Crim. P. 74(b)(1). (Opp’n to Bail Mot. 2.) The Court may consider the issue of bail “on the basis of all pleadings” or “the pleadings supplemented by any evidence received at a hearing pursuant to Rule 73.” (Id.) Respondent the State of Maine has not yet had an opportunity to respond to the petition, and the petition and memorandum Petitioner filed do not show a likelihood of success on the merits. Petitioner admits that he is only 54 years old and that he was recently healthy enough to work multiple days per week before the prison system stopped his work program to prevent the spread of COVID-19. (Mem. in Support of Petition pp. 1, 4.) Petitioner further admits that there have been no confirmed cases of COVID-19 among Maine prison inmates. (Mem. in Support of Petition p. 2; see also MDOC’s Daily COFID-19 Dashboard, available at https://maine.gov/corrections/ (last visited Apr. 24, 2020).) Despite these facts, Petitioner claims that his health is so poor and his preexisting conditions are so serious that he should not be required to serve his prison sentence (through approximately August 2020) for the forgery and other crimes to which he pled guilty in 2019. (Mem. in Support of Petition p. 3.)
1 MDOC provides a public, online daily report on the number of inmates in its custody, the number of inmates tested for COVID-19, the number of inmates being monitored for the virus, and the number of inmates being transferred to the community under the Supervised Community Confinement Program (SCCP). See MDOC’s Daily COVID-19 Dashboard, available at https://maine.gov/corrections/ (last visited Apr. 24, 2020).
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Petitioner also states that he tried to exhaust administrative remedies by unsuccessfully applying to the Supervised Community Confinement Program (“SCCP”), through which the Commissioner of MDOC allows inmates who meet certain criteria to serve the remainder of their sentence in the community. (Petition p. 6.) But Petitioner omits the fact that he did not appeal the denial of his application to this program within MDOC, which will be demonstrated in the course of proceedings if the petition proceeds further. Thus, Petitioner failed to exhaust administrative remedies and has no likelihood of success on the merits. 15 M.R.S. § 2126 (2020). For all of these reasons, Petitioner’s emergency motion for a hearing on bail should be denied.
Releasing Petitioner on bail would also expose him to the same dangers of contracting COVID-19 that members of the public face. This risk is not insubstantial. He alleges that he requires multiple prescription medications (Mem. in Support of Petition p. 3), which are presently provided to him in prison by the prison’s private medical contractor, but in the community, he would have to find access to medications through a doctor’s office or pharmacy. As discussed above, there are no confirmed cases of COVID-19 among Maine’s prison inmates. The same cannot be said for the community. Confirmed cases of COVID-19 have been found in all counties in Maine. See Maine Center for Disease Control & Prevention COVID-19 Update and Information, available at https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus. shtml#situation (last visited Apr. 24, 2020). Petitioner further requests that he be “allowed to shelter in place at home,” but it is unclear at this time whether Petitioner even has a place to reside if he is released from prison. Thus, the State requests that the Court deny the emergency motion for a hearing on bail.
Under M.R. Crim. P. 74, the Court may decide to release an inmate on bail pending final determination of a petition for post-conviction review, if the conditions of 15 M.R.S. §§ 1051(2)
3
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Case 1:20-cv-00175-JAW Document 31-8 Filed 06/22/20 Page 4 of 4 PageID #: 741
and (3) are satisfied. Section 1051(2), in turn, requires that there be no substantial risk that the Petitioner will fail to appear and will not otherwise pose a substantial risk to the integrity of the judicial process; that there is no substantial risk he will pose a danger to another or the community; and no substantial risk that he will commit new criminal conduct. 15 M.R.S. § 1051(2) (2020). Even without considering any of Petitioner’s criminal history, the nature of the crimes to which he pled guilty and is currently serving a sentence on (forgery and operating after habitual offender revocation) show that Petitioner is unable to show that there is no substantial risk that he will commit new criminal conduct. Petitioner refers to the multiple felony crimes that he committed as “nondangerous” (Mem. in Support of Petition p. 4), but this unreasonably downplays the potential danger inherent in these offenses and ignores his criminal history, which includes being convicted of operating under the influence, multiple operating after habitual offender revocations, multiple burglaries and thefts, assault, and failing to report.
Because Petitioner’s request for bail is premature and because Petitioner has no likelihood of success on the merits, the request for an emergency bail hearing should be denied.
Respectfully submitted this 27th day of April, 2020. I certify that there are good grounds to support this pleading, that it complies with PMOSJC-3, and that it is not being filed to cause any delay.
/s/ Jillian R. O’Brien Jillian R. O’Brien, Bar No. 6225 Assistant Attorney General Office of the Attorney General 6 State House Station Augusta, ME 04333-0006 (207) 626-8800 jill.obrien@maine.gov
4
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App.042

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App.043

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Case 1:20-cv-00175-JAW Document 31-11 Filed 06/22/20 Page 1 of 3 PageID #: 749

O'Brien, Jill
From: Sent: To: Subject: Attachments:

Michelle Racine <michelle.racine@courts.maine.gov> Monday, May 18, 2020 4:28 PM Emma Bond; O'Brien, Jill Fwd: Denbow PCR 20200518162452088.pdf

Good afternoon ‐ we received a call this afternoon indicating the AG's office did not receive a copy of the PCR petition. It appears that it was sent to the Oxford DA's office only. I'm forwarding along copies of the petition, order assigning petition and special assignment order. I apologize for the error. Please let me know if you have any questions. Thank you
‐‐‐‐‐‐‐‐‐‐ Forwarded message ‐‐‐‐‐‐‐‐‐ From: <donotreply_scanner@courts.maine.gov> Date: Mon, May 18, 2020 at 4:24 PM Subject: Denbow PCR To: michelle <michelle.racine@courts.maine.gov>

This E‐mail was sent from "SopCC‐Multi1" (MP 3054).
Scan Date: 05.18.2020 16:24:51 (‐0400) Queries to: donotreply_scanner@courts.maine.gov

‐‐
Michelle Racine, Clerk Oxford County Superior & District Courts
Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure, or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy/delete all copies of the original message.

1

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O'Brien, Jill
From: Sent: To: Cc: Subject: Attachments:

Michelle Racine <michelle.racine@courts.maine.gov> Wednesday, May 20, 2020 10:17 AM Emma Bond O'Brien, Jill Re: Denbow PCR Denbow docket sheet.pdf

Attached please find the docket sheet for the Joseph Denbow PCR. Due to the current situation and limited staffing, both orders were docketed today and noted on the docket sheet. Thank you for your patience.
On Mon, May 18, 2020 at 9:31 PM Emma Bond <ebond@aclumaine.org> wrote:
Clerk Racine, Thank you for sending this! This is the first that I have seen the special assignment order, or any order in this case, and I just wanted to confirm that you have the correct address for me: P.O. Box 7860, Portland, Maine 04112. Additionally, would it be possible to request a copy of the full docket? I would be happy to pay for any records as necessary. Thanks again for your time! Take care, Emma
Emma Bond pronouns: she/her/hers Staff Attorney American Civil Liberties Union of Maine PO Box 7860, Portland, ME 04112 ■ 207-619-8687 ■ ebond@aclumaine.org www.aclumaine.org

From: Michelle Racine <michelle.racine@courts.maine.gov> Sent: Monday, May 18, 2020 4:27 PM To: Emma Bond <ebond@aclumaine.org>; O'Brien, Jill <Jill.OBrien@maine.gov> Subject: Fwd: Denbow PCR
Good afternoon ‐ we received a call this afternoon indicating the AG's office did not receive a copy of the PCR petition. It appears that it was sent to the Oxford DA's office only. I'm forwarding along copies of the petition, order assigning petition and special assignment order. I apologize for the error. Please let me know if you have any questions. Thank you
‐‐‐‐‐‐‐‐‐‐ Forwarded message ‐‐‐‐‐‐‐‐‐ From: <donotreply_scanner@courts.maine.gov> Date: Mon, May 18, 2020 at 4:24 PM
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Subject: Denbow PCR To: michelle <michelle.racine@courts.maine.gov> This E‐mail was sent from "SopCC‐Multi1" (MP 3054). Scan Date: 05.18.2020 16:24:51 (‐0400) Queries to: donotreply_scanner@courts.maine.gov
‐‐ Michelle Racine, Clerk Oxford County Superior & District Courts Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure, or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy/delete all copies of the original message. ‐‐ Michelle Racine, Clerk Oxford County Superior & District Courts Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure, or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy/delete all copies of the original message.
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Case 1:20-cv-00175-JAW Document 31-14 Filed 06/22/20 Page 1 of 4 PageID #: 763
PMO-SJC-1
STATE OF MAINE JUDICIAL BRANCH PANDEMIC MANAGEMENT ORDER
Order Issued March 30, 2020
Revised Emergency Order and Notice from the Maine Supreme Judicial Court
In light of public health concerns arising from the novel coronavirus (COVID-19), Maine’s Judicial Branch is taking steps to adhere to the guidance provided by the Maine and United States Centers for Disease Control and Prevention.
IDENTIFYING CURRENTLY EFFECTIVE ORDERS
As the Judicial Branch continues its response to the novel coronavirus pandemic, this and other Orders will be revised from time to time. This Order augments and supersedes the prior Revised Emergency Order and Notice.
This and other Orders of the Supreme Judicial Court will be numbered to reflect the Pandemic Management Order as follows: PMO-SJC-1.
Orders issued by the Trial Courts will be similarly numbered to reflect the Pandemic Management Order of the Trial Chiefs: PMO-TC-1
COURTHOUSE SCHEDULES
Courthouse schedules can be found here: https://www.courts.maine.gov/covid19/court-hours.html
Most courthouses remain open to the public. You should go to a courthouse only if you are required to be there, or if you are seeking protection from abuse or harassment. If you have questions about whether you should go to a courthouse, please call 207-753-2999.
Persons identified as being infected by COVID-19, having had contact with those infected by COVID-19, or having visited areas identified as problematic due to the prevalence of COVID-19 should not come to Maine’s courthouses. If that happens, call the courthouse where you were required to attend. Courthouse phone numbers can be found using the following link:
https://www.courts.maine.gov/maine_courts/index.shtml

Case 1:20-cv-00175-JAW Document 31-14 Filed 06/22/20 Page 2 of 4 PageID #: 764
CASE TYPES CANCELLATIONS AND POSTPONEMENTS
Effective immediately, and continuing through May 1, 2020, unless otherwise ordered by the court, the following case types and proceedings will NOT be scheduled or heard:
• FED (Eviction, landlord/tenant) • Disclosures • Foreclosures • Small Claims • Medical Malpractice proceedings including Panel Hearings • Family matters • Adoptions • Juvenile matters (unless the juvenile is being detained) • Criminal matters (except as related to the incarceration of a defendant) • All other nonjury civil matters including civil violations • All actions to recover personal property • All Violations Bureau hearings (traffic tickets)
All previously scheduled cases are postponed. An extension of these limitations beyond May 1, 2020 is likely but has not yet been ordered.
The courts WILL schedule and hear only the following: • Arraignments and first appearances of defendants held in custody • Motions for review of bail of defendants held in custody • Juvenile detention hearings • Protection from Abuse requests and hearings • Protection from Harassment requests and hearings • Child Protection petitions and hearings o Hearings are limited to Summary Preliminary Hearings and Jeopardy Hearings. • Mental health requests and hearings • Emergency guardianships

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EXCEPTIONS IN EXTRAORDINARY AND URGENT CIRCUMSTANCES
In those matters that are not being scheduled or heard during this phase of the pandemic management, an exception to that prohibition may be made in individual cases upon an order of the court in the following circumstances.
1. If a party or the party’s attorney contends that there are urgent and compelling reasons that the court should hold the party’s criminal, civil, or family trial or hearing, the party or counsel shall immediately file a written motion.
2. That motion, explaining why this particular case must be heard before May 1, must be served on the other party or parties. If any party objects to the motion, it must file its written opposition within three days after the motion is filed. The court will rule on the motion expeditiously.
3. Hearings may be held if the court has determined that:
o The nature of the matter for which a hearing or other court action has been requested is urgent and compelling;
o The hearing can be held without requiring the presence of additional court staff;
o The proceeding can be undertaken without requiring the in-person participation of any parties, witnesses, or attorneys; and
o The proceeding can be undertaken without requiring the physical proximity of any participants or placing undue stress on those necessary to the proceeding.
JURORS AND JURY TRIALS
All jury matters, civil and criminal, including grand jury proceedings, are postponed to a date after May 29, 2020.
LITIGANTS: If your jury trial is now scheduled between March 16 and May 29, 2020, your trial will be rescheduled, and you will receive notice of the new trial date.
Availability of jury trials will be reviewed on an ongoing basis with notice provided to all parties.

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BOARDS, COMMITTEES, AND CLE
Effective immediately and until further order of the Court, all boards and committees established by the Maine Supreme Judicial Court are hereby authorized to conduct any and all meetings, conferences, and other activities by means of an electronic medium without in-person participation.
In addition, effective immediately and until further order, any in-person participation requirements for continuing legal education, including but not limited to the requirement in M. Bar. R. 5(c)(3), are hereby suspended and participation may be by an electronic medium.
ORAL ARGUMENTS IN THE SUPREME JUDICIAL COURT
All oral arguments scheduled before the Supreme Judicial Court, sitting as the Law Court, are hereby cancelled until further notice. All appeals scheduled to be argued in April 2020 will be decided on the briefs. No oral arguments will be held in May 2020.
The Court will be monitoring events and providing updates with respect to the status of its calendar as to oral argument after May 2020 and thereafter.
OTHER PANDEMIC MANAGEMENT ORDERS
This Order is not intended to be comprehensive. Other pandemic management orders of the Supreme Judicial Court and the Trial Court Chiefs can be found at this site: https://www.courts.maine.gov/covid19.shtml.

Dated: March 30, 2020

For the Court:

/s/ Leigh I. Saufley Chief Justice

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STATE OF MAINE JUDICIAL BRANCH
COVID-19 Phased Management Plan
Version 1: Issued May 27, 2020
History In March 2020, the emergence of the COVID-19 pandemic compelled the
Maine Judicial Branch to significantly curtail court proceedings in the interest of public safety and the health and safety of Judicial Branch Employees. The initial orders issued by the Maine Supreme Judicial Court limited court proceedings to those matters in which persons faced dangers of injury or death and matters involving constitutional liberty interests.
In the weeks that followed, the Court issued Pandemic Management Orders (PMOs) that incrementally increased the number of case types to be scheduled and heard in accordance with safety concerns. The Court’s most recent PMOs provide for scheduling and hearing of almost all case types, on two conditions: (1) the case must be one that can be addressed by video or telephone conference and (2) judicial resources will be directed to priority case types first.
In each instance, the Court’s decisions have been founded upon scientific data and have represented the Court’s best judgment in the difficult task of balancing the need to protect the health and safety of the public and the Court’s employees with the need to provide a forum for the adjudication of legal matters.
Creation of COVID-19 Phased Management Plan Consistent with the gradual reopening of State functions in the wake of
the COVID-19 pandemic, the Court now establishes this COVID-19 phased management plan to set forth the anticipated incremental resumption of all Court activities. In establishing this plan—and in making any revisions to it that may be necessitated by the unavailability of resources, the progression of the

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pandemic, or other relevant subsequent events—the Court is and will continue to be guided by the most recent scientific data available from the Maine Center for Disease Control and Prevention, as well as internal data and recommendations from the Chiefs of the Superior and District Courts; the Maine Executive and Legislative branches of government; County Commissioners; jail personnel; other State, county, and municipal offices; and other interested stakeholders. We are particularly guided by the State of Maine’s COVID-19 Prevention Checklists for General Guidance and for Industry Guidance on Public and Community Buildings.
Guiding Principles The following principles will continue to guide the Court’s
decision-making as it establishes and revises its long-term plans in the wake of the COVID-19 pandemic:
• Evidence-Based, Collaborative Decision-Making. In making decisions about court capabilities during the COVID-19 pandemic, the Court will continue to obtain and rely on scientific information from the Maine Center for Disease Control and Prevention as well as the input of diverse stakeholders in determining how to ensure the health of the public while upholding the fundamental rights of litigants in the court system.
• Protecting Courthouse Staff and Visitors. It is essential to the public welfare that courthouse staff and visitors alike, including those who are the most vulnerable, are protected and safe so that the work of the courts may continue to be carried out without causing harm.
• Attention to Local Conditions. The specific anticipated dates for each phase set forth below may be attainable in some courthouses and not in others. By virtue of the conditions necessary for execution of each phase, some court functions in some locations may be subject to additional delays.
• Availability of Necessary Resources. Reopening of the courts may be accomplished only when all necessary resources—including sufficient staffing, security, and technological capabilities—are available to both adequately protect all court staff and visitors and support the resumption of court functions.
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• Satisfaction of Required Conditions. At each phase of the anticipated reopening plan, the execution of the plan is dependent on the satisfaction of a list of preconditions related to each of the above principles. The inability of any court location to meet any one or more of the required preconditions may necessitate
o Adjustments to the phase attributes in that location, o A halt to phase progression, and/or o A return to the safeguards of an earlier phase.
Anticipated Phases Consistent with the guiding principles, a five-phase plan for the
resumption of all functions of the Maine state courts is established. Any resurgence of COVID-19 may, however, necessitate
• Adjustments to the phase attributes, • A halt to phase progression, and/or • A return to the safeguards of an earlier phase.
These changes may be implemented on a statewide basis if necessary or may be implemented only in specific court locations if the incidence of the disease varies across the state.
PHASE 1 Anticipated for June 1 – June 12 (two weeks)
Required Conditions for Phase 1 • Entry screening to enforce the Judicial Branch Visitor Restrictions set forth in the Judicial Branch Notice dated April 8, 2020, must be available at the courthouse at all times that the courthouse is open to the public. See Appendix A.
• Any person entering the courthouse must wear a face shield, mask, or cloth face covering that covers the nose and mouth at all times while in the courthouse pursuant to PMO-SJC-1. Hand sanitizer will be available at entrances and exits and must be used upon entering and exiting the building, and upon reentering the building after exiting.
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• Social distancing measures employed in each courthouse must be observed. No more than 10 people, including court personnel, shall be present in a courtroom at any one time. No more than 50 people per courthouse floor may be present in common areas at any one time. These numbers may be reduced depending on the need for social distancing at a specific courthouse or on a specific floor of a courthouse. To the extent possible, court events will be scheduled at staggered times to prevent large numbers of people from entering and exiting a courthouse at any given time.
• Adequate staff and technology resources, and adequate personal protective equipment must be available at the courthouse.
Attributes of Phase 1 when Required Conditions are Satisfied • Courts will be open to the public from 8:00 a.m. to 4:00 p.m.
• The following case types and proceedings will NOT be scheduled or heard:
o FED (eviction, landlord/tenant) except requests for writs of possession as provided by the Governor’s Executive Order Number 40, dated April 16, 2020
o Disclosures o Foreclosures o Small claims o Violations Bureau
• No jury trials will be scheduled or held.
• No grand jury proceedings will be scheduled or held.
• The courts WILL continue to schedule and hear the following proceedings in the same manner that they have been conducted since the implementation of the Pandemic Management Orders:
o Arraignments and first appearances of defendants held in custody o Motions for review of bail of defendants held in custody o Juvenile detention hearings o Protection from abuse requests and hearings
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o Protection from harassment requests and hearings o Child protection petitions and proceedings
▪ Hearings are limited to summary preliminary hearings, jeopardy hearings, and judicial reviews1
o Mental health requests and hearings o Emergency guardianships
• The courts MAY schedule and hear all other case types and proceedings so long as all hearings, conferences, and other court events take place only by video or audio conference. In scheduling hearings, conferences, and other court events, the courts will continue to allocate judicial resources in such a manner that the following cases receive priority for scheduling and hearings:
o Arraignments and first appearances of defendants held in custody o Motions for review of bail of defendants held in custody o UCD plea agreements for defendants in custody o UCD probation revocation hearings for defendants in custody o UCD dispositional conferences for defendants in custody o Juvenile detention hearings o Uncontested gestational carrier hearings o Uncontested divorce and judicial separation hearings o Uncontested parental rights and responsibilities hearings o Uncontested parentage hearings o Telephonic case management, status conference, and Rule 26(g)
discovery conferences in family matters o Protection from abuse requests and hearings o Protection from harassment requests and hearings o Child protection petitions and proceedings
▪ Summary preliminary hearings, jeopardy hearings, judicial reviews, case management conferences, uncontested hearings on termination of parental rights, and uncontested hearings on orders of parental rights and responsibilities
o Uncontested child support, child support modification, and child support enforcement actions
o Mental health requests and hearings o Emergency guardianships
1 Case management conferences and docket calls, if held, will be conducted telephonically.
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o Uncontested adoptions o Petitions for Review concerning Control of Notifiable Diseases
(22 M.R.S. § 820)
• In any matter that is not being scheduled or heard during this phase of the pandemic management, a request can be made for the scheduling of the matter as set forth in PMO-SJC-1.
• All oral arguments scheduled before the Supreme Judicial Court, sitting as the Law Court, will be conducted either by video conferencing or addressed by the court without oral arguments.
PHASE 2 Anticipated for June 15 – July 2 (three weeks)
Required Conditions for Phase 2 • Entry screening to enforce the Judicial Branch Visitor Restrictions set forth in the Judicial Branch Notice dated April 8, 2020, must be available at the courthouse at all times that the courthouse is open to the public. See Appendix A.
• Any person entering the courthouse must wear a face shield, mask, or cloth face covering that covers the nose and mouth at all times while in the courthouse pursuant to PMO-SJC-1. Hand sanitizer will be available at entrances and exits and must be used upon entering and exiting the building, and upon reentering the building after exiting.
• Social distancing measures employed in each courthouse must be observed. No more than 10 people, including court personnel, shall be present in a courtroom at any one time. No more than 50 people per courthouse floor may be present in common areas at any one time. These numbers may be reduced depending on the need for social distancing at a specific courthouse or on a specific floor of a courthouse. To the extent possible, court events will be scheduled at staggered times to prevent large numbers of people from entering and exiting a courthouse at any given time.
• Adequate staff and technology resources, and adequate personal protective equipment must be available at the courthouse.
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• No person in custody will be permitted to enter the courthouse except in compliance with standard entry screening limitations and express prior arrangements or memorandum of understanding with the custodial facility that will adequately protect the public, courthouse staff, and the incarcerated person from infection.
• New conditions did not arise during the two weeks of Phase 1 that require additional restrictions.
Attributes of Phase 2 when Required Conditions are Satisfied • The following case types and proceedings will NOT be scheduled or heard:
o FED (eviction, landlord/tenant) except requests for writs of possession as provided by the Governor’s Executive Order Number 40, dated April 16, 2020
o Disclosures o Foreclosures o Small claims o Violations Bureau
• No jury trials or grand jury proceedings will be scheduled or held.
• Video and telephone conferences are the strongly preferred medium for all proceedings. However, the courts MAY schedule and hear the following proceedings as in-person hearings, subject to the availability of judicial resources and the need to address priority cases:
o Arraignments and first appearances of defendants held in custody o Motions for review of bail of defendants held in custody o Juvenile detention hearings o Protection from abuse requests and hearings o Protection from harassment requests and hearings o Child protection petitions and proceedings o Mental health requests and hearings o Emergency guardianships o UCD plea agreements for defendants in custody o UCD probation revocation hearings for defendants in custody o UCD dispositional conferences for defendants in custody
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o Criminal cases involving summonses awaiting first appearances o Uncontested gestational carrier hearings o Uncontested divorce and judicial separation hearings o Uncontested parental rights and responsibilities hearings o Uncontested parentage hearings o Telephonic case management, status conference, and Rule 26(g)
discovery conferences in family matters o Uncontested child support, child support modification, and child
support enforcement actions o Uncontested adoptions o Petitions for Review concerning Control of Notifiable Diseases
(22 M.R.S. § 820)
• In any matter that is not being scheduled or heard during this phase of the pandemic management, a request can be made for the scheduling of the matter as set forth in PMO-SJC-1.
• All oral arguments scheduled before the Supreme Judicial Court, sitting as the Law Court, will be conducted either by video conferencing or addressed by the court without oral arguments.
PHASE 3 Anticipated for July 6 – July 31 (four weeks)
Required Conditions for Phase 3 • Entry screening to enforce the Judicial Branch Visitor Restrictions set forth in the Judicial Branch Notice dated April 8, 2020, must be available at the courthouse at all times that the courthouse is open to the public. See Appendix A.
• Any person entering the courthouse must wear a face shield, mask, or cloth face covering that covers the nose and mouth at all times while in the courthouse pursuant to PMO-SJC-1. Hand sanitizer will be available at entrances and exits and must be used upon entering and exiting the building, and upon reentering the building after exiting.
• Social distancing measures employed in each courthouse must be observed. No more than 10 people, including court personnel, shall be
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present in a courtroom at any one time. No more than 50 people per courthouse floor may be present in common areas at any one time. These numbers may be reduced depending on the need for social distancing at a specific courthouse or on a specific floor of a courthouse. To the extent possible, court events will be scheduled at staggered times to prevent large numbers of people from entering and exiting a courthouse at any given time.
• Adequate staff and technology resources, and adequate personal protective equipment must be available at the courthouse.
• No person in custody will be permitted to enter the courthouse except in compliance with standard entry screening limitations and express prior arrangements or memorandum of understanding with the custodial facility that will adequately protect the public, courthouse staff, and the incarcerated person from infection.
• New conditions did not arise during the three weeks of Phase 2 that require additional restrictions.
Attributes of Phase 3 when Required Conditions are Satisfied • The following case types and proceedings will NOT be scheduled or heard:
o FED (eviction, landlord/tenant) except requests for writs of possession as provided by the Governor’s Executive Order Number 40, dated April 16, 2020
o Disclosures o Foreclosures o Small claims o Violations Bureau
• Video and telephone conferences are the strongly preferred medium for all proceedings. However, the courts MAY schedule and conduct in-person hearings in all case types not listed above, subject to the availability of judicial resources and the need to address priority cases.
• No jury trials will be scheduled or held.
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• Grand jury proceedings may be scheduled and held in person at courthouses. Capacity controls will be adjusted to accommodate the special requirements for grand jury proceedings.
• All oral arguments scheduled before the Supreme Judicial Court, sitting as the Law Court, will be conducted either by video conferencing or addressed by the court without oral arguments.
PHASE 4 Anticipated for August 3 – September 4 (five weeks)
Required Conditions for Phase 4 • Entry screening to enforce the Judicial Branch Visitor Restrictions set forth in the Judicial Branch Notice dated April 8, 2020, must be available at the courthouse at all times that the courthouse is open to the public. See Appendix A.
• Any person entering the courthouse must wear a face shield, mask, or cloth face covering that covers the nose and mouth at all times while in the courthouse pursuant to PMO-SJC-1. Hand sanitizer will be available at entrances and exits and must be used upon entering and exiting the building, and upon reentering the building after exiting.
• Social distancing measures employed in each courthouse must be observed. No more than 10 people, including court personnel, shall be present in a courtroom at any one time. No more than 50 people per courthouse floor may be present in common areas at any one time. These numbers may be reduced depending on the need for social distancing at a specific courthouse or on a specific floor of a courthouse. To the extent possible, court events will be scheduled at staggered times to prevent large numbers of people from entering and exiting a courthouse at any given time.
• Adequate staff and technology resources, and adequate personal protective equipment must be available at the courthouse.
• No person in custody will be permitted to enter the courthouse except in compliance with standard entry screening limitations and express prior
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arrangements or memorandum of understanding with the custodial facility that will adequately protect the public, courthouse staff, and the incarcerated person from infection.
• New conditions did not arise during the four weeks of Phase 3 that require additional restrictions.
Attributes of Phase 4 when Required Conditions are Satisfied • No jury trials will be scheduled or held.
• Grand jury proceedings may be scheduled and held in person at courthouses. Capacity controls will be adjusted to accommodate the special requirements for grand jury proceedings.
• Video and telephone conferences are the strongly preferred medium for all proceedings. However, the courts MAY schedule and conduct in-person hearings in all case types, subject to the availability of judicial resources and the need to address priority cases.
• All oral arguments scheduled before the Supreme Judicial Court, sitting as the Law Court, will be conducted either by video conferencing or addressed by the Court without oral arguments.
PHASE 5 Anticipated for September 7 onward
Required Conditions for Phase 5 (and until further notice) • Entry screening to enforce the Judicial Branch Visitor Restrictions set forth in the Judicial Branch Notice dated April 8, 2020, must be available at the courthouse at all times that the courthouse is open to the public. See Appendix A.
• Any person entering the courthouse must wear a face shield, mask, or cloth face covering that covers the nose and mouth at all times while in the courthouse pursuant to PMO-SJC-1. Hand sanitizer will be available at entrances and exits and must be used upon entering and exiting the building, and upon reentering the building after exiting.
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• Social distancing measures employed in each courthouse must be observed. No more than 10 people, including court personnel, shall be present in a courtroom at any one time. No more than 50 people per courthouse floor may be present in common areas at any one time. These numbers may be reduced depending on the need for social distancing at a specific courthouse or on a specific floor of a courthouse. To the extent possible, court events will be scheduled at staggered times to prevent large numbers of people from entering and exiting a courthouse at any given time.
• Adequate staff and technology resources, and adequate personal protective equipment must be available at the courthouse.
• No person in custody will be permitted to enter the courthouse except in compliance with standard entry screening limitations and express prior arrangements or memorandum of understanding with the custodial facility that will adequately protect the public, courthouse staff, and the incarcerated person from infection.
• New conditions did not arise during the five weeks of Phase 4 that require additional restrictions.
Attributes of Phase 5 when Required Conditions are Satisfied • Courts will be open to the public from 8:00 a.m. to 4:30 p.m.
• Jury trials may be scheduled and held. Capacity controls will be adjusted to accommodate the special requirements for jury trials.
• Grand jury proceedings may be scheduled and held in person at courthouses. Capacity controls will be adjusted to accommodate the special requirements for grand jury proceedings.
• Video and telephone conferences are the strongly preferred medium for all proceedings. However, the courts MAY schedule and conduct in-person hearings in all case types, subject to the availability of judicial resources and the need to address priority cases.
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• All oral arguments scheduled before the Supreme Judicial Court, sitting as the Law Court, may be conducted in person or by video conferencing as determined by the Court in consultation with counsel.
__________________________________________________________________________________________ APPENDIX A: State of Maine Judicial Branch Public Notice Regarding
Visitor Restrictions (issued April 8, 2020; revised May 27, 2020)
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STATE OF MAINE JUDICIAL BRANCH PUBLIC NOTICE Issued April 8, 2020
(revised May 27, 2020)

Visitor Restrictions

The State of Maine Judicial Branch announces visitor restrictions that apply to all State courthouses. These restrictions are imposed in light of the health concerns caused by the COVID-19 (coronavirus) pandemic.

The United States Centers for Disease Control and Prevention (CDC) has advised people to take precautions in light of the pandemic. The CDC advises that the best way to avoid illness is to avoid being exposed to the virus.

For purposes of these restrictions, “close contact” with a person with confirmed COVID-19 means having spent 30 minutes or more within 6 feet of the person within the past 14 days without the use of full personal protective equipment (PPE).

Therefore, effective immediately, the following persons shall not enter any State courthouse in Maine:

• Persons who have, within the last fourteen days, travelled to any country for which the CDC has issued Level Two or Level Three travel health notices (this list will be updated weekly);

• Persons who have, within the last fourteen days, travelled to any area of the United States for which the CDC has issued a Domestic Travel Advisory (this list will be updated weekly);

• Persons who reside or have had close contact with someone who has travelled to any of those countries or areas of the United States within the last fourteen days;

• Persons who have been asked to self-quarantine by any doctor, nurse practitioner, hospital, or health agency; and

• Persons who have been diagnosed with COVID-19 within the preceding 30 days or who have had close contact within the preceding 30 days with anyone who has been diagnosed with COVID-19.

When you arrive at a courthouse, you will be asked the following questions:

1. In the last seven days, have you experienced any of the following symptoms:

o Fever or chills, o Cough, o Shortness of breath or difficulty
breathing, o Fatigue, o Muscle or body aches,

o Headache, o New loss of taste or smell, o Sore throat, o Congestion or runny nose, o Nausea or vomiting, or o Diarrhea?

2. Do you live with, or have you been in close (less than 6 feet) prolonged contact, (more than 30 minutes) with someone who has or had a diagnosis of COVID-19?

Case 1:20-cv-00175-JAW Document 31-15 Filed 06/22/20 Page 15 of 15 PageID #: 781 3. Do you live with, or have you been in close (less than 6 feet) prolonged contact, (more than 30 minutes) with someone who has or had fever, cough, shortness of breath, or flu-like symptoms?
4. Within the last 14 days, have you traveled outside of Maine or have you had close contact with someone who has traveled outside of Maine?
5. Have you been diagnosed with COVID-19 or been asked to self-quarantine by any hospital, health agency, nurse practitioner, physician’s assistant, or doctor?
If you answer YES to any of these questions, you may be asked some follow-up questions and, depending on the answers to those questions, you will either be allowed to enter or you will be refused entrance and provided with a contact number so that you may be assisted. You may be asked to sign a written attestation confirming that you do not have any of the symptoms noted above.
If you refuse to participate in the screening process, you will be refused entrance and provided with a contact number so that you may be assisted.
In order to comply with CDC recommendations and to protect the public and court staff, anyone attempting to enter in violation of these protocols will be denied entry by a Judicial Marshal.
If you have a scheduled court hearing or are otherwise required to appear at one of the courthouses in Maine, and you cannot enter the courthouse as a result of these protocols, you should proceed as follows:
• If you are represented by an attorney, please contact your attorney;
• If you are not represented by an attorney, please call 207-753-2999 to speak to a clerk about your case;
• If you are seeking protection from abuse or protection from harassment, call 207-753-2999 and a clerk will assist you;
• If you are an attorney and you are scheduled to appear in court, please call 207-753-2999 to speak to a clerk about your case.
These restrictions will remain in place temporarily, until it is determined safe to remove them. All persons who believe they have been exposed to the coronavirus should immediately contact their healthcare providers.
May 27, 2020
_____/s/__________________________________________ Hon. Andrew M. Mead Acting Chief Justice, Maine Supreme Judicial Court
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MAINE JUDICIAL BRANCH
ADMINISTRATIVE OFFICE OF THE COURTS

PORTLAND OFFICE P.O. Box 4820 Portland, ME 04112-4820 Phone: 207-822-0792 Fax: 207-776-6096

FOR IMMEDIATE RELEASE
Contact: Amy Quinlan, Esq., Director of Court Communications Phone: (207) 822-0716 Email: amy.quinlan@ courts.maine.gov
Maine Judicial Branch Announces Revisions to Pandemic Management Orders
Portland, ME – The Maine Judicial Branch issued revisions to the Pandemic Management Orders (PMOs) today updating the measures being taken in response to the COVID-19 pandemic emergency and include:
• PMO-SJC-1 • PMO-SJC-3 • PMO-TC-1
The new PMOs extend many of the emergency deadlines, expand the list of cases and proceedings that may be scheduled and heard, and implement additional safety precautions for those entering courthouse facilities consistent with the Governor’s Executive Orders. The Supreme Judicial Court also announced the creation of a new stakeholders advisory group to provide information and assistance to the Judicial Branch as it continues to formulate plans to address the COVID-19 pandemic and its effects on court operations.
USE OF MASKS IN COURTHOUSE FACILITIES. Effective May 5, 2020, all members of the public who enter any courthouse facility will be required to wear a mask or cloth face covering that covers the nose and mouth at all times. See PMO-SJC-1.
HEARINGS Effective immediately, and continuing through May 30, 2020, the courts may schedule and hear virtually all case types and proceedings so long as all hearings, conferences, and other court events take place only by video or audio conference. In scheduling hearings, conferences, and other court events, the courts will continue to allocate judicial resources in such a manner that priority cases receive precedence. See PMO-SJC1.
FILING OF DOCUMENTS IN PRIORITY CASES The Maine Judicial Branch has provided for the email filing, Mondays through Friday, between 8 a.m. and 3 p.m., of certain court documents in priority cases and has expanded the list to include complaints for protection from abuse orders. See PMO-SJC-3 for guidance on how to file documents by email.
DEFERRED JURY TRIALS Deferrals for all jury trials have been extended by PMO-SJC-1 as follows:
• All civil and criminal jury trials are deferred until after June 30, 2020 at the earliest. • Grand jury sessions will not be held until after June 30, 2020.

Contact accessibility@courts.maine.gov with requests for disability accommodations.

TTY: Maine Relay 711 www.courts.maine.gov

Contact interpreters@courts.maine.gov with requests for interpreters.

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MAINE JUDICIAL BRANCH
ADMINISTRATIVE OFFICE OF THE COURTS

PORTLAND OFFICE P.O. Box 4820 Portland, ME 04112-4820 Phone: 207-822-0792 Fax: 207-776-6096

ORAL ARGUMENTS IN THE SUPREME JUDICIAL COURT Oral Arguments before the Supreme Judicial Court will proceed either by video conference or be addressed by the court upon briefs submitted by the parties. See PMO-SJC-1.
STAKEHOLDERS ADVISORY GROUP The Judicial Branch announces the creation of a new stakeholders advisory group to provide information and assistance to the Judicial Branch as the Branch continues to formulate plans to address the COVID-19 pandemic and its effects on court operations. The group is comprised of a wide variety of organizations and groups whose members regularly appear in Maine court proceedings. Video conference meetings of the group will occur on May 14 at 9:30 a.m. and on May 21 at 9:30 a.m. Any party or group beyond those listed in PMO-SJC-1 wishing to be included should send a request to: chiefjustice@courts.maine.gov, no later than noon on May 7, 2020.
TRAFFIC INFRACTIONS All deadlines established pursuant to M.R. Civ. P. 80F (traffic infractions), and set to expire on or before May 31, 2020, have been extended to June 1, 2020. See PMO-TC-1.
FINES, FEES, RESTITUTION, AND ATTORNEY FEE REIMBURSEMENTS Fines and fees can be paid online, eliminating the need to come to a courthouse. Here is the site for online payments. https://www5.informe.org/online/courts/fines/
For those unable to pay their fines and fees at this time, the deadline for fine payments is extended through June 1, 2020. See PMO-TC-1.
COURT HOURS Court hours in every region continue to be adjusted. The current schedule can be found here https://www.courts.maine.gov/maine_courts/schedules/closings.shtml.
Do not come to court without checking courthouse schedules. Because changes in court hours may occur daily, any person intending to go to a Maine courthouse should check the website here: https://www.courts.maine.gov/maine_courts/schedules/closings.shtml before traveling to the court or call 207-753-2999 and be aware that you must wear a mask or cloth face covering while inside courthouses.
Do not go to any courthouse if you are sick, if you have the virus, or if you know that you have been exposed to the virus. If have questions about whether you should go to a courthouse, please call 207-7532999. For general inquiries concerning the Judicial Branch's response to the COVID-19 outbreak, contact info@courts.maine.gov.
Please visit the Judicial Branch’s webpage at: https://www.courts.maine.gov/covid19.shtml for the latest information about the Judicial Branch’s response to COVID-19 and related court orders.

Contact accessibility@courts.maine.gov with requests for disability accommodations.

TTY: Maine Relay 711 www.courts.maine.gov

Contact interpreters@courts.maine.gov with requests for interpreters.

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 Case 1:20-cv-00175-JAW Document 35 Filed 07/02/20 Page 1 of 8 PageID #: 801

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

JOSEPH A. DENBOW et al., Petitioners,
v. MAINE DEPARTMENT OF CORRECTIONS et al.,
Respondents.

Docket No. 1:20-cv-00175-JAW
RESPONDENTS’ MEMORANDUM OF LAW IN SUPPORT OF APPLICATION OF THE RULES GOVERNING § 2254 CASES TO THIS ACTION

As ordered by the Court (ECF No. 34), Respondents respectfully submit this memorandum of law in support of their contention that the Rules Governing § 2254 Cases (“Habeas Rules”) should apply to this action. The Court should convert the petition into a § 2254 petition because, in the First Circuit, all state-prisoner habeas petitions are governed by § 2254. Allowing state prisoners to label their petitions otherwise would make what are meant to be mandatory procedural rules optional. And, if the Court declines to convert the Petition, it should still apply the Habeas Rules in its discretion to avoid the piecemeal litigation of procedural disputes under Fed. R. Civ. P. 81, which the Rules were created to avoid.
Background Petitioners Joseph Denbow and Sean Ragsdale are incarcerated in Mountain View Correctional Facility, a state correctional facility operated by MDOC. Pet. ¶¶ 13–14 (ECF No. 1); 34-A M.R.S. § 4101. Both have been convicted of state-law crimes. Pet. ¶¶ 13–14. On May 15, 2020, Petitioners filed a habeas action in federal court, purportedly under 28 U.S.C. § 2241. Pet. ¶¶ 10–11. The Petition seeks various forms of relief, including release, on behalf of a putative class of inmates at higher risk from COVID-19. Pet. ¶ 108.

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On June 25, 2020, the Court issued an interim order on discovery. ECF No. 34. The order noted that there were unresolved questions concerning the applicability of the Rules Governing § 2254 Cases (“Habeas Rules”) to this proceeding, and required Respondents to file a memorandum “explaining why the Court should convert Petitioners’ petition to a petition under [28] U.S.C. § 2254 and the applicability of the Rules.” Id. at 3.
Argument I. The Court Should Convert the Petition Into a § 2254 Petition.
Petitioners have mislabeled their petition as a § 2241 petition, when the relief they seek is governed by 28 U.S.C. § 2254. The Court should thus convert the petition to a § 2254 petition.
Section 2241 “establishes the general authority of the federal courts to issue habeas relief.” Dominguez v. Kernan, 906 F.3d 1127, 1134 (9th Cir. 2018). It establishes categories of prisoners who may seek federal habeas relief, including prisoners in custody in “violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(1)–(5).
Section 2254 is a limitation on § 2241’s grant of habeas authority. See Felker v. Turpin, 518 U.S. 651, 662 (1996) (“Our authority to grant habeas relief to state prisoners is limited by § 2254, which specifies the conditions under which such relief may be granted to ‘a person in custody pursuant to the judgment of a State court.’”); Brennan v. Wall, 100 F. App’x 4, 4 (1st Cir. 2004) (per curiam) (“a state prisoner in custody pursuant to the judgment of a state court may file a habeas corpus petition, as authorized by § 2241, but he is limited by § 2254.”).1
1 See also Dominguez, 906 F.3d at 1134 (“Section 2254 has been understood as limiting the authority granted by § 2241 rather than supplementing it”); In re Wright, 826 F.3d 774, 780 (4th Cir. 2016) (concluding that § 2254 is a limitation on authority rather than a grant of authority); Hartfield v. Osborne, 808 F.3d 1066, 1073 (5th Cir. 2015) (“§ 2254 is not an independent avenue through which petitioners may pursue habeas relief”); Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011) (observing that § 2254 is not a separate source of habeas jurisdiction from the grant of general jurisdiction in § 2241(a));
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Section 2254(a) is phrased as a restriction, providing for federal habeas review for a state prisoner2 “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). Section 2254 goes on to impose a number of additional limitations on federal habeas petitions by state prisoners. Id. § 2254(b)–(e).
There is a circuit split as to whether state prisoners can challenge the “execution” of a sentence under § 2241, without § 2254’s restrictions. See Gonzalez-Fuentes v. Molina, 607 F.3d 864, 876 n.9 (1st Cir. 2010). The First Circuit has adopted the majority view “that prisoners in state custody are required to comply with all the requirements laid out in § 2254 whenever they wish to challenge their custodial status, no matter what statutory label the prisoner uses.” Id. Thus, where state-prisoner petitioners were challenging the revocation of their supervised release—a claim not unlike the one here—the First Circuit held that, despite petitioners’ reliance on both § 2241 and § 2254, the latter statute “ultimately governs the relief that they seek.”3 Id.
Under Gonzalez-Fuentes, there can be no serious dispute that § 2254 “governs” the claims of Petitioners, id., who are undisputedly persons “in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a). The only question that remains is whether the petition, despite
Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000) (observing that § 2254 “implements the general grant of habeas corpus authority found in § 2241” for state prisoners).
2 This memo uses the phrase “state prisoner” as shorthand for a prisoner in custody pursuant to the judgment of a state court, to the exclusion of other individuals detained by the state.
3 Petitioners have previously suggested (ECF No. 13 at 6) that language in Gonzales-Fuentes recognizes that execution-of-sentence challenges may be brought under § 2241. Since attacking the execution of their sentences is precisely what the Gonzales-Fuentes petitioners were doing, Petitioners’ reading of that stray language is inconsistent with the court’s holding. Rather, judging by the court’s citation to Muniz v. Sabol, 517 F.3d 29 (1st Cir. 2008), the language was referring to federal prisoners, for whom the sentence/execution-of-sentence distinction is—under plain language in § 2255(a) conspicuously absent from § 2254—determinative of whether they must file a motion to vacate or correct their sentence under § 2255 or a habeas petition under § 2241.
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being governed by § 2254, should be permitted to retain its self-designation as a § 2241 petition. Honoring this designation would mean that the Habeas Rules—which have mandatory application in cases “filed . . . under 28 U.S.C. § 2254,” see Habeas Rule 1(a)—would apply only in the Court’s discretion as a habeas petition “not covered by Rule 1(a).” See id. Rule 1(b).4
The Second and Eleventh Circuits, which follow the same majority view as the First Circuit, have endorsed district courts’ conversion of petitions by state prisoners styled as § 2241 petitions into § 2254 petitions. Thomas v. Crosby, 371 F.3d 782, 787 (11th Cir. 2004); Cook v. New York State Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003). Thomas is particularly illuminating. It relied heavily on a prior Eleventh Circuit decision, which, like the cases cited above, concluded that § 2254 functions as a limitation on § 2241:
Section 2254 presumes that federal courts already have the authority to issue the writ of habeas corpus to a state prisoner, and it applies restrictions on granting the Great Writ to certain state prisoners—i.e., those who are “in custody pursuant to the judgment of a State court.” Thus, the text of § 2254 indicates that it is not itself a grant of habeas authority, let alone a discrete and independent source of post-conviction relief. Medberry v. Crosby, 351 F.3d 1049, 1059–60 (11th Cir. 2003). Based on this understanding of § 2254, Thomas concluded that, since a state-prisoner habeas case “is governed by both § 2241 and § 2254,” the petitioner “cannot evade the procedural requirements of § 2254 by filing something purporting to be a § 2241 petition.” Thomas, 371 F.3d at 787. The court thus affirmed the district court’s conversion of the petition. Id. at 788. The reasoning of Thomas illuminates the logical flaw in Petitioners’ position that the
4 Rule 1 provides in relevant part: “(a) Cases Involving a Petition under 28 U.S.C. § 2254. These rules govern a petition for a writ of habeas corpus filed in a United States district court under 28 U.S.C. § 2254 by: (1) a person in custody under a state-court judgment who seeks a determination that the custody violates the Constitution, laws, or treaties of the United States; and (2) . . . . (b) Other Cases. The district court may apply any or all of these rules to a habeas corpus petition not covered by Rule 1(a).”
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Court should treat their petition as a “§ 2241 petition.” Because § 2254 is a limitation on federal courts’ powers under § 2241, every state-prisoner habeas action is a § 2241 petition. See Brennan, 100 F. App’x at 4 (recognizing that petitions subject to § 2254 are “authorized by § 2241”). And, at least in majority-view jurisdictions like this one, every state-prisoner habeas action is also governed by § 2254. Thus, if Petitioners are correct that they can exempt themselves from the Habeas Rules by labeling their petition a “§ 2241 petition,” so too can every other state prisoner bringing a habeas claim. It is inconceivable that the drafters of Habeas Rule 1 intended for the otherwise mandatory rules to become optional “simply because [a state prisoner] chose to fill out his claims on a form labeled ‘28 U.S.C. § 2241.’”5 In re Wright, 826 F.3d 774, 782 (4th Cir. 2016) (discussing § 2244(b)); see Medberry, 351 F.3d at 1061 (§ 2254 would be “dead letter” if state prisoner could avoid it “simply by writing ‘§ 2241’ on his petition”).
The Court should therefore hold that a petition “govern[ed]” by § 2254, GonzalezFuentes, 607 F.3d at 876 n.9, must also be a petition “filed . . . under” § 2254 for purposes of Rule 1(a), and should therefore convert the petition to a § 2254 petition. Thomas, 371 F.3d at 787; Cook, 321 F.3d at 278; Harrison v. Wolcott, No. 20-CV-6270, 2020 WL 3000389, at *2 (W.D.N.Y. June 4, 2020) (converting COVID-19-related § 2241 petition to a § 2254 petition).6
5 Petitioners’ constitutional concerns about the application of § 2244(b)’s prohibition of successive habeas petitions as a result of conversion would be properly addressed not here, but in any future petition filed by one of the Petitioners (both of whom are about to be released). In any event, for precisely the same reason petitioners cannot mislabel their petition avoid the Habeas Rules, they cannot do so to avoid § 2244(b). See In re Wright, 826 F.3d at 779; Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001);
6 See also In re Wright, 826 F.3d at 783 (petition “governed by” § 2254 should be treated as “an application under § 2254” even though it was “styled as a § 2241 petition”); Saulsberry v. Lee, 937 F.3d 644, 647 (6th Cir. 2019) (holding § 2254 is the “exclusive vehicle” for a habeas petition by a state prisoner); Dominguez, 906 F.3d at 1135 (same); Walker, 216 F.3d at 633 (same); Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001) (same).
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II. The Court Should Apply the Habeas Rules to the Petition Even If It Declines to Formally Convert the Petition. If the Court were to decline to formally convert the petition to a § 2254 petition, it should
exercise its discretion to apply the Habeas Rules to this case under Rule 1(b). Even if, as the Court observed, the Habeas Rules are to some extent an “awkward fit” for
this case, Interim Order at 2, the alternative is worse. That alternative is not wholesale application of the Federal Rules of Civil Procedure. Rather, if the Habeas Rules did not apply, the Court would have to apply Fed. R. Civ. P. 81(a)(4)(B) to each procedural dispute between the parties. That rule requires an analysis of whether the particular civil-procedure rule at issue is consistent with previous practice in habeas cases. The entire point of the Habeas Rules was to rescue federal courts from having to apply that standard, which the Supreme Court has criticized (in a prior form) as “opaque” and “transparently inadequate” to address the unique procedural issues arising in habeas. Harris v. Nelson, 394 U.S. 286, 300 n.7 (1969).
Moreover, while the applicability of many civil procedural rules to habeas proceedings under Rule 81(a)(4)(B) would be subject to debate, there is no uncertainty about the applicability of the civil discovery rules. In Harris v. Nelson, the Supreme Court held that, under Rule 81(a)(4), civil discovery rules do not “completely and automatically” apply in habeas cases. 394 U.S. at 298; see Bracy v. Gramley, 520 U.S. 899, 904 (1997) (“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course”). Thus, if the Court did not apply the Habeas Rules to this case under Rule 1(b), it would still, under Harris, have to evaluate Petitioner’s discovery requests under something akin to the “good cause” standard set forth in Habeas Rule 6. It would make little sense to eschew the very rules designed in the wake of Harris to aid federal courts in making the determination that Harris expressly requires when a habeas petitioner seeks discovery.
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It is unsurprising, then, that federal courts faced with habeas petitions falling outside of § 2254 or § 2255 appear to invariably apply the Habeas Rules under Rule 1(b).7 Out of thousands of federal decisions citing Rule 1(b), Respondents cannot find a single one in which the court declined to apply the Habeas Rules. Indeed, some courts have described application of the Habeas Rules to § 2241 petitions as effectively mandatory. See Wyant v. Edwards, 952 F. Supp. 348, 352 (S.D. W. Va. 1997) (concluding, after extensive review of drafting history of the Habeas Rules, that Rules “were intended to apply to § 2241 cases”).
Finally, it bears mentioning that, if the Habeas Rules are an awkward fit for Petitioners’ claims due to the lack of a state-court record, Interim Order at 2, that is only because Petitioners have disregarded their obligation to exhaust state-court remedies under § 2254(b). See Resps.’ Mot. to Dismiss (ECF No. 31). Indeed, Petitioner Denbow is currently in the process of generating a substantial state-court record in his parallel state-court post-conviction review proceeding, which now includes a June 24 testimonial hearing on his bail motion and a six-page written decision by Justice McKeon denying bail. Had Petitioners exhausted their state court remedies, there would be such a record for this Court to review.
Conclusion The Court should rule that the Habeas Rules apply to this action.
7 See, e.g., Bramson v. Winn, 136 F. App’x 380, 382 (1st Cir. 2005) (per curium); Annamalai v. Warden, 760 F. App’x 843, 849–850 (11th Cir. 2019); Adams v. Unknown Party, No. 18-1030, 2018 WL 3373079, at *1 (6th Cir. June 6, 2018); Lane v. Feather, 584 F. App’x 843, 843 (9th Cir. 2014); Aguayo v. Harvey, 476 F.3d 971, 976 (D.C. Cir. 2007); Alpine v. Smith, No. 2:19-CV-00068-LEW, 2019 WL 8407493, at *3 n.5 (D. Me. Feb. 22, 2019), report and rec. adopted, 2019 WL 8407494 (D. Me. Apr. 9, 2019); Downie v. Maine, No. 2:18-CV-00187-DBH, 2018 WL 2197956, at *1 (D. Me. May 14, 2018), report and rec. adopted, 2018 WL 3117226 (D. Me. June 25, 2018).
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Dated: July 2, 2020

AARON M. FREY Attorney General
/s/ Jonathan R. Bolton Jonathan R. Bolton jonathan.bolton@maine.gov Jillian R. O’Brien jill.obrien@maine.gov Alisa Ross alisa.ross@maine.gov Assistant Attorneys General Office of the Attorney General 6 State House Station Augusta, ME 04333-0006 Tel. (207) 626-8800

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a Case No. 20-cv-00175-JAW class of similarly situated persons,

Petitioners, v.
MAINE DEPARTMENT OF CORRECTIONS, et al.,

PETITIONERS’ MEMORANDUM REGARDING THE APPLICABILITY OF THE RULES GOVERNING SECTION 2254 CASES

Respondents.

Pursuant to the Court’s interim discovery order, Petitioners submit this memorandum to address the unresolved questions identified by the Court, specifically: (1) “whether the Court is required to formally convert the § 2241 petition to a § 2254 petition,” and (2) “regardless of the answer to the conversion issue, whether the Court should apply the Rules Governing Section 2254 Cases to this case.” Order at 2-3, ECF No. 34 (June 25, 2020). As discussed below, the Court should not convert the petition to a § 2254 petition because such conversion could foreclose Petitioners from challenging other constitutional violations in their conviction or sentence unrelated to the COVID-19 pandemic—an outcome that implicates the Suspension Clause and is not required by statute or First Circuit precedent. To the extent the Court nonetheless chooses to convert, Petitioners respectfully request notice and the opportunity to amend or dismiss given the restrictions on second or successive § 2254 petitions. Regardless of conversion, moreover, it is appropriate for the Court to apply the Rules Governing Section 2254 Cases in this case. In light of the flexibility baked into the Rules Governing Section 2254 cases, the Court has the discretion to apply those rules in this case “as law and justice require.” See 28 U.S.C. § 2243; see also Joint Status Report at 4-5, ECF No. 30 (June 17, 2020) (discussing discretion in applying the Rules Governing Section 2254 Cases).
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I. The Court Should Not Convert the § 2241 Petition to a § 2254 Petition The question of whether the Court may convert this § 2241 petition into a § 2254 petition
hinges on the collateral consequences for petitions filed under § 2254, including the restrictions on second or successive petitions. Converting this petition into a § 2254 petition could bar named petitioners—or even all putative class members—from later asserting any constitutional infirmity in their convictions or sentences, despite having no opportunity to raise such challenges in this case. See 28 U.S.C. § 2244(b). It is precisely because of such harsh collateral consequences that, even in run-of-the-mill cases involving a plainly mislabeled petition, it is reversible error for a court to convert a petition without giving a pro se petitioner the chance to decline the conversion or withdraw the motion. See, e.g. Cook v. N.Y. State Div. of Parole, 321 F.3d 274, 282 (2d Cir. 2003) (vacating a decision ordering conversion without the opportunity to withdraw); see also Castro v. United States, 540 U.S. 375, 124 S. Ct. 786, 792 (2003) (acknowledging the “serious consequences” to a petitioner of recharacterizing a petition to a § 2255 motion and requiring notice and an opportunity to withdraw, amend, or dismiss the filing).
In other words, a key consideration before ordering conversion is the risk that “construing [a filing] as a section 2254 petition might cause [a party] to forfeit unintentionally any otherwise meritorious claims for federal habeas relief he might have.” Cook, 321 F.3d at 282. Respondents are wrong, therefore, in claiming that concerns about the second or successive petition should be delayed until “any future petition filed by one of the Petitioners.” Respondents’ Mem. at 5 n.5, ECF No. 35 (July 2, 2020). To the contrary, the “potential adverse consequences of … recharacterization” must be considered before (not after) any such conversion may take place. See Cook, 321 F.3d at 281-82 (citing Adams, 155 F.3d at 583).
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Although these concerns with conversion are typically only procedural—requiring notice and the opportunity to cure or to dismiss before converting the petition—in this case they are also substantive and militate against any conversion at all. These substantive concerns derive from the presumption of reviewability of the Maine Department of Corrections’ response to the COVID-19 pandemic, as well as canons of interpretation that avoid implicating the Suspension Clause.1 There is a “strong presumption in favor of judicial review of administrative action” and a “longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction.” I.N.S. v. St. Cyr, 533 U.S. 289, 298 (2001) (superseded by statute on other grounds as stated in Nasrallah v. Barr, 140 S. Ct. 1683 (2020)); see also DHS v. Thuraissigiam, 140 S. Ct. 1959, 1980 (2020) (acknowledging the “presumption in favor of judicial review” and “the rule that ‘[i]mplications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction”) (internal citations omitted).
Conversion to a § 2254 petition would implicate serious concerns under the Suspension Clause. The Clause “ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty.” Boumediene v. Bush, 553 U.S. 723, 745 (2008) (citation omitted). In conflict with this guarantee, converting to a § 2254 petition could require Petitioners (and potentially putative class members) to choose between pursuing their challenges to unconstitutional prison conditions during a deadly pandemic, and other potentially meritorious constitutional or statutory challenges to their conviction or sentence. The bar on second
1 The Suspension Clause provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, § 9, cl. 2. During ratification, founders “referred to the Suspension Clause as an ‘exception’ to the ‘power given to Congress to regulate courts.’” Boumediene v. Bush, 553 U.S. 723, 743 (2008) (internal citation omitted).
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successive petitions, which represents a “modified res judicata rule,” typically protects against “abuse” of the habeas remedy, requiring parties to raise all constitutional infirmities to their convictions or sentences in a single proceeding. See Felker, 518 U.S. at 664 (1996) (denying a challenge under the Suspension Clause). But in the unique circumstances of the COVID-19 pandemic, it would not be feasible or desirable for Petitioners to raise all potential constitutional or statutory violations with their convictions or sentences in this case. Requiring all potential claims to be challenged in a single proceeding, 28 U.S.C. § 2244(b), would represent a denial of the federal forum for litigants challenging unprecedented dangers arising from the COVID-19 pandemic.
These concerns under the Suspension Clause invoke the “clear statement” rule: “[W]hen a particular interpretation of a statute invokes the outer limit of Congress’ power, we expect a clear indication that Congress intended that result.” Id. at 299. Here, there is no “clear statement” requiring conversion of petitions filed under § 2241 challenging conditions of confinement as unconstitutional. To the contrary, the First Circuit has recognized that § 2241 “may be used to attack the manner in which a sentence is executed, as opposed to the sentence itself,” and had to resort to “Congressional intent” to determine that § 2254 procedures should nonetheless apply to prisoners’ challenge to the removal of a pre-release program . Gonzalez-Fuentes v. Molina, 607 F.3d 864, 875 n.9 (1st Cir. 2020).
Indeed, the Supreme Court’s procedural rules demonstrate the reasonableness of allowing this petition to proceed under § 2241. The Supreme Court’s rule governing original jurisdiction2 over habeas petitions provides: “If the relief sought [in the habeas petition] is from the judgment
2 See Felker v. Turpin, 518 U.S. 651, 660–62 (1996) (explaining that the Supreme Court retains original jurisdiction over habeas cases); see also 28 U.S.C. §§ 2241, 2254(a) allowing petitions to be filed before the Supreme Court).
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of a state court, the petition shall set out specifically how and where the petitioner has exhausted available remedies in the state courts or otherwise comes within the provisions of 28 U.S.C. § 2254(b).” SCOTUS Rule 20.4. In this case, the petitioners do not seek relief “from the judgment of a state court,” but rather from the unconstitutional conditions that place them at greater risk of serious illness or death during this pandemic. See id. Accordingly, the standards under which the Supreme Court’s rules require compliance with § 2254 procedures are not met, making it appropriate to proceed under the default jurisdiction under § 2241.
This understanding is consistent with the numerous § 2241 petitions filed on behalf of post-conviction State prisoners during the COVID-19 pandemic.3 For example, in one habeas petition on behalf of convicted state prisoners (among other petitioners), the court held that § 2241 is “the proper vehicle for Plaintiffs to challenge the continued confinement of medicallyvulnerable Jail inmates during the COVID-19 pandemic.” Cameron v. Bouchard, No. CV 2010949, 2020 WL 2569868, at *13 (E.D. Mich. May 21, 2020), on reconsideration, No. CV 2010949, 2020 WL 2615740 (E.D. Mich. May 22, 2020) (stayed pending appeal). In another petition on behalf of pre-trial detainees and post-conviction state prisoners, the court held that “Plaintiffs are challenging the current health conditions of their confinement, which, they claim, have become unconstitutional because of the COVID-19 pandemic risk. They are not attacking their underlying sentences. As such, § 2241 is the proper vehicle for their petition” McPherson v. Lamont, No. 3:20CV534 (JBA), 2020 WL 2198279, at *5 (D. Conn. May 6, 2020); but see Griffin v. Cook, No. 3:20-CV-589 (JAM), 2020 WL 2735886, at *3 (D. Conn. May 26, 2020) (applying § 2254).
3 These decisions include the McPherson decision, which arises in the Second Circuit, another circuit that has adopted the so-called “majority rule.”
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In sum, ordering conversion to a § 2254 petition carries serious implications under the Suspension Clause—a result that would be avoided by applying the reasonable interpretation that § 2254 procedures apply only to cases seeking “relief . . . from the judgment of a state court,” which is not the case here. See SCOTUS Rule 20.4. Accordingly, even accepting this Court’s determination that § 2254 exhaustion applies, Denbow v. Maine Dep’t of Corr., No. 1:20-CV00175-JAW, 2020 WL 3052220, at *17 (D. Me. June 8, 2020),4 the Suspension Clause implications of conversion militate against conversion to a § 2254 petition.
None of the cases cited in the Respondents’ Memorandum are to the contrary, and indeed, Respondents cite no precedential decision from the First Circuit converting to a § 2254 petition at all. See generally Resp. Mem. at 2-5. The only precedential First Circuit decision on point is Gonzales-Fuentes, a petition filed under both §§ 2241 and 2254, making conversion a nonissue. Gonzalez-Fuentes, 607 F.3d at 875 n.9. And in Brennan v. Wall, a non-precedential decision, the petitioner had already previously filed a § 2254 petition and the First Circuit had already denied a certificate of appeal for a second petition, making concerns about waiver of future rights a non-issue. 100 F. App’x 4 (1st Cir. 2004) (non-precedential). In short, there is no First Circuit precedent governing the specific issue presented here, and the Court should decline to chart a new path that could deprive Petitioners of a weighty constitutional right.
Finally, to the extent the Court nonetheless elects to convert the petition to a § 2254 petition, Petitioners respectfully request advanced notice and the opportunity to either amend or dismiss their petition before such a conversion takes effect. Cook, 321 F.3d at 282; Castro, 540 U.S. at 383-84. Although this procedure is typically afforded to pro se petitioners, the same
4 For purposes of preserving the issue for appeal, Petitioners continue to assert that the petition was properly filed under § 2241, as in Cameron and McPherson discussed above.
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courtesy should extend to Petitioners in this case, given the unusual and exceptional nature of their claims, the strong reasons for believing that § 2241 should apply, and the weighty concerns with converting to a § 2254 petition. II. Petitioners Do Not Object to the Court Applying the Rules Governing Section 2254
Cases to this Case Although this petition was filed under 28 U.S.C. § 2241, this Court has the “discretion” to apply the Rules Governing Section 2254 Cases to other situations, including in section 2241 cases. See Section 2254 Rule 1, Advisory Committee Notes; see also Joint Status Report at 4-5, ECF No. 30. With the exception of Rule 9 on second or successive petitions (which, in any event, appears to be superseded by statute), Petitioners do not object to applying the Rules Governing Section 2254 Cases in this case. Although “the Rules Governing Section 2254 Cases are an awkward fit to the Petitioners’ conditions of confinement theory,” Order at 2, these rules were promulgated after Harris v. Nelson, and are consistent with its generous view of judicial authority to oversee case management with “initiative” and “flexibility.” 394 U.S. 286, 290, 291 (1969) (quoting 28 U.S.C. § 2243). With respect to class procedures, moreover, the Court may apply Rule 23 as a Rule of Civil Procedure that is “not inconsistent with any statutory provision or these rules.” Section 2254 Rule 12.5
CONCLUSION For these reasons, Petitioners object to converting their § 2241 petition to a § 2254 petition, but do not object to Respondents’ proposal to apply the Rules Governing Section 2254 Cases, with the exception of Rule 9.
5 The Rules Governing Section 2254 Cases do not incorporate the requirement of the Maine rule on post-conviction reviews, which requires that the petition “shall be limited” to challenges to a “single trial” or “single proceeding.” M.R. Crim. P. 67(b).
7

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Dated July 10, 2020

Respectfully Submitted,
/s/ Emma E. Bond Emma E. Bond Zachary L. Heiden American Civil Liberties Union of Maine Foundation P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 ebond@aclumaine.org (207) 619-6224 heiden@aclumaine.org
Moe Keshavarzi* Robert Sturgeon* Alex Kuljis* Sheppard Mullin Richter & Hampton LLP 333 South Hope Street, 43rd Floor Los Angeles, CA 90071-1422 213.617.5544 MKeshavarzi@sheppardmullin.com 213-617-5435 RSturgeon@sheppardmullin.com 213-617-4239 AKuljis@sheppardmullin.com
Jodi Nofsinger Miriam Johnson Taylor Asen Berman and Simmons 129 Lisbon Street Lewiston, Maine 04240 jnofsinger@bermansimmons.com (207) 784-7699 mjohnson@bermansimmons.com (207) 784-3576 tasen@bermansimmons.com
Attorneys for Petitioners and Proposed Class
* admitted pro hac vice

8

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CERTIFICATE OF SERVICE The undersigned certifies that she has electronically filed this date the foregoing PETITIONERS’ RESPONSE REGARDING THE APPLICABILITY OF THE RULES GOVERNING SECTION 2254 CASES with the Clerk of the Court using the CM/ECF system. This filing is available for viewing and downloading from the ECF system.

Dated: July 10, 2020

/s/ Emma E. Bond Emma E. Bond American Civil Liberties Union of Maine Foundation P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 ebond@aclumaine.org
Counsel for Petitioners

9

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,
Petitioners,

Case No. ____________

v.

MAINE DEPARTMENT OF CORRECTIONS and RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity,
Respondents.

DECLARATION OF PROFESSOR JUDITH RESNIK REGARDING ENLARGEMENT AND THE USE OF PROVISIONAL REMEDIES
FOR DETAINED INDIVIDUALS

I have been asked to make this declaration to explain my understanding of the remedies, both provisional and permanent, that federal judges can provide to people who are incarcerated and facing the threat of COVID-19. Because I have practiced in the federal courts for decades and represented prisoners in federal court, I have had personal experience with the use of enlargement in habeas corpus cases. Given that this provisional remedy is not regularly discussed in reported decisions or in academic analyses, I believe that my experiences and knowledge can be useful to the Court. This opinion is mine and is not that of the institutions with which I am affiliated. I declare that the following is a true and accurate account of my own work as a lawyer, of the pertinent legal principles as I understand them, and of how these precepts can apply in this unprecedented context.
My Background

1. I have worked on occasion as a lawyer, including in the clinical programs at Yale Law School and at the University of

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2
Southern California Law Center (USC), where I taught for more than a decade before returning to Yale Law School. I have appeared before the United States Supreme Court and in federal district and appellate courts. I have also been appointed by federal judges to assist in issues arising in large-scale litigation. Below, I provide a few aspects of my work particularly relevant to this declaration. I attach my resume as Exhibit A to this Declaration.
2. From 1977 until 1980, I was a supervising attorney at Yale Law School’s clinical program, which then provided legal services to federal prisoners housed at F.C.I. Danbury. From 1980 to 1996, I taught at USC in both traditional classroom and clinical settings.
3. I am now the Arthur Liman Professor of Law at Yale Law School where I teach courses, including on federal and state courts; procedure; large-scale litigation; federalism; and incarceration.
4. I have taught law for decades. Much of my focus has been on the role and function of courts, and the relationship of governments to their populations. I regularly teach the class entitled Federal and State Courts in the Federal System. Readings for students include materials on habeas corpus and on civil rights litigation.
5. In 2018, I was awarded an Andrew Carnegie Fellowship to work on a book, tentatively entitled Impermissible Punishments, which explores the impact of the 1960s civil rights revolution on the kinds of punishments that governments can impose on people convicted of crimes. Central to this book is the role that access to courts played for people held in detention.
6. I am the Founding Director of the Arthur Liman Center for Public Interest Law. The Liman Center teaches classes yearly, convenes colloquia, does research projects, supports graduates of Yale Law School to work for one year in public interest organizations, and is an umbrella for undergraduate fellowships at eight institutions of higher education.
7. I write about the federal courts; adjudication and alternatives such as arbitration; habeas corpus and incarceration; class actions and multi-district litigation; the judicial role and courts’ remedies; gender and equality; and about transnational aspects of these issues. In recent years, I have spent a good deal of time doing research related to prisons. I have helped to develop
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a series of reports that provide information nation-wide on the use of solitary confinement.

8. In February of 2019, I testified before the U.S.

Commission on Civil Rights at its hearing on women in prison and

co-authored a statement related to the isolation of many facilities

for women, their needs for education and work training, and the

discipline to which they are subjected. See Statement submitted

for the record, Women in Prison: Seeking Justice Behind Bars,

before the U.S. Commission on Civil Rights, March 22, 2019. The

report, published a few months ago, references this testimony. See

U.S. Commission on Civil Rights, Women in Prison: Seeking Justice

Behind

Bars

(February

2020),

available

at

https://www.usccr.gov/pubs/2020/02-26-Women-in-Prison.pdf.

Remedies Available in the Federal Courts: Habeas Corpus, Civil Rights Litigation, and Enlargement

9. In light of my knowledge of the federal law of habeas corpus, state and federal court relations, procedure, and remedies, I have been asked by counsel for the petitioners/plaintiffs to address the range of responses available to judges presiding in cases that raise claims related to COVID19. I have submitted a declaration akin to this one in a few other cases.

10. As I understand from public materials on the health risks of this disease, COVID-19 poses a deadly threat to the well-being and lives of people who contract this disease. To reduce the risk and spread of this disease, our governments have instructed us to stay distant from others and to take measures that are extraordinary departures from our daily lives and routines.

11. Applying these urgent medical directives to prisons poses challenges in every jurisdiction. Governing legal principles about prisoners’ access to courts were not framed to address COVID19’s reality: that being inside prisons that are densely populated can put large numbers of people (prisoners and staff) at risk of immediate serious illness and potential death.

12. These unprecedented risks from and harms of COVID-19 in prison raise a new legal question: whether COVID-19 has turned sentences which, when imposed, were (or may have been) constitutional into unconstitutional sentences during the pendency of this crisis.

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13. When sentencing people to a term of years of incarceration, judges had no authority to impose putting a person at grave risk of serious illness and death as part of the punishment for the offense. Now, such grave risks and harms can arise from the fact of incarceration.
14. A recent Supreme Court case, Montgomery v. Louisiana, 136 S.Ct. 718 (2016), provides an analogous situation of sentence that was constitutional at sentencing but unconstitutional now. The Court determined that, in light of new understandings of the limits of brain development in juveniles, sentences of life without parole (LWOP) imposed on individuals who had committed crimes when under the age of eighteen were lawful when issued but became unconstitutional. As a consequence, parole boards or courts had to reconsider whether LWOP remained appropriate. COVID-19 raises a parallel question, as it requires courts to address whether sentences lawful at imposition can (at least temporarily) no longer be served in prisons because otherwise, the sentence would become an unconstitutional form of punishment. In these abnormal times, the speed at which decisions are made is critical. Therefore, as I discuss below, provisional remedies (enabling enlargement and release for some individuals and de-densifying for others) are necessary.
15. The classic and longstanding remedy for relief from unconstitutional detention, conviction, and sentences is habeas corpus. The Constitution enshrined the remedy of habeas corpus, which has a substantial common law history and is codified in federal statutes. See generally Paul D. Halliday, Habeas Corpus (Harvard U. Press, 2012); Amanda L. Tyler, Habeas Corpus in Wartime (Oxford U. Press, 2017); Randy Hertz and James Liebman, Federal Habeas Corpus Practice and Procedure (2 volumes, 2019); Hart & Wechsler, The Federal Courts and the Federal System, Chapter X1, 1193-1164 (Richard H. Fallon, Jr, John F. Manning, Daniel J. Meltzer & David Shapiro, 7th ed., 2015). These citations are the tip of a vast and substantial literature that aims to understand the history and law of habeas corpus.
The Legal Thicket
16. As is familiar, in federal courts, federal petitioners file under 28 U.S.C. §2255 (post-conviction motions) and under §2241 (the general habeas statute), both of which are civil actions.
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17. For example, when I worked at Yale Law School in its clinical program in the late 1970s, we filed lawsuits for federal prisoners predicated on 28 U.S.C. §2241 as well as (in appropriate situations) on 28 U.S.C. §1331 (general question jurisdiction) and 28 U.S.C. §1361 (mandamus), and in several instances, we filed cases as class actions. In the mid-1970s, the Supreme Court provided rules and forms for §2254 and §2255 filings. The Federal Rules of Civil Procedure supplement those rules, as recognized in F.R.Civ.Pro. 81(a)(4).
18. Congress has recognized that federal judges are authorized under the habeas statutes to “summarily hear and determine the facts, and dispose of the matter as law and justice require.” See 28 U.S.C. §2243. In addition to this statutory authority, federal judicial power is predicated on the constitutional protection of the writ and on the common law.
19. Congress has channeled and circumscribed some of federal judicial authority through the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and, relatedly, under the Prison Litigation Reform Act (PLRA) of 1996.
20. Moreover, the Supreme Court has issued many decisions interpreting the prior habeas statutes, the 1996 revisions in AEDPA, and the intersection of habeas and civil rights claims brought under 42 U.S.C. §1983. The result is a dense arena of law and doctrine that can be daunting for litigants and jurists alike.
21. Some Supreme Court decisions, written to address claims by state prisoners, have delineated litigation focused on the fact or duration of confinement, for which release is the remedy and habeas is the preferred route, from challenges to conditions of confinement, for which the Court has required use of 42 U.S.C. §1983. See, e.g., Preiser v. Rodriguez, 411 U.S. 475 (1978); Heck v. Humphrey, 512 U.S. 477 (1994). Yet that distinction is hard to apply, and many opinions have identified that the overlap, as exemplified by Mohammad v. Close, 540 U.S. 744 (2004), Wilkinson v. Dotson, 544 U.S. 74 (2005), and by other Supreme Court and lower court decisions.
22. COVID-19 poses a new and painful context in which to undertake that analysis. Some reported decisions addressing the constitutional right of prisoners that officials not be “deliberately indifferent to serious medical needs” consider those Eighth Amendment claims to be appropriate for §1983 because they
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6
relate to conditions. But this deadly disease turns ordinary conditions into potentially lethal threats of illness for which the remedy to consider is release of at least some prisoners because density puts people at medical risk.
23. Because COVID-19 can end people’s lives unexpectedly and abruptly, COVID-19 claims turn the condition of being incarcerated into a practice that affects the fact or duration of confinement. In my view, COVID-19 claims, therefore, collapse the utility and purpose of drawing distinctions between what once could more coherently be distinguished.
24. Courts need also to consider how COVID-19 fits (or not) with provisions of AEDPA and the parameters of the PLRA. Again, new problems have emerged. For example, in some contexts for state and federal prisoners, a question of exhaustion of remedies arises. Often one issue is the ability of the executive branch to respond quickly. In the COVID context, day by day, the risk of illness increases for prisoners and staff, which endanger health care resources. Exhaustion would be “futile” if other branches of government are not prompt in response and if people become sick, risks skyrocket, and deaths occur.
25. “Futility” thus needs to be analyzed in terms not only of the capacity of institutions but in terms of the likelihood that the people seeking relief will be well enough to have the capacity to do so, and that the remedy provided will be effective given the alleged harm.
26. Other legal issues include when class actions or other forms of multi-party treatment are appropriate and if so, whether the criteria such as those of Rule 23 are met; the merits of arguments about unconstitutional sentences and conditions; and the range of remedies. Furthermore, circuit case law varies somewhat on the use and application of the Federal Rules of Civil Procedure in habeas filings and on the scope and the interpretation of 28 U.S.C. §2241.
The Availability of Provisional Remedies
27. The reason to flag some of the many issues that litigation of both habeas petitions and civil rights cases entail is to underscore the importance of considering provisional remedies when cases are pending. In general, time is required for lawyers to brief and for judges to interpret and apply the law.
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But waiting days in a world of COVID infections can result in the loss of life.
28. While courts have not faced COVID before, they have faced urgent situations, which is why provisional legal remedies exist. Courts have two ways to preserve the status quo – which here means protecting to the extent possible the health of prisoners, staff, and providers of medical services. One route is the use of temporary restraining orders and preliminary injunctions. These remedies require no explanation because they are familiar procedures. See Fed. R. Civ. Pro. 65.
29. Another option is an aspect of federal judicial power that is less well known. District courts have authority when habeas petitions are pending to “enlarge” the custody of petitioners. “Enlargement” is a term that, as far as I am aware, is used only in the context of habeas. (More familiar terms for individuals permitted to leave detention are “release” and “bail,” and some decision that “enlarge” petitioners use those words rather than enlargement).
30. The distinction is that enlargement is not release. The person remains in custody - even as the place of custody is changed and thus “enlarged” from a particular prison to a hospital, halfway house, a person’s home, or other setting. Enlargement is a provisional remedy that modifies custody by expanding the site in which it takes place.
31. Enlargement has special relevance when the PLRA has application. As I understand the PLRA’s rules on the “release” of prisoners, enlargement would not apply, as enlargement is not a release order. And, of course, interpreting the many directives of the PLRA in light of COVID entails more elaboration that my comments here.
32. The need to work through that statute and case law is another reason why the availability of provisional remedies is so important. Enlargement provides an opportunity for increasing the safety of prisoners, staff, and their communities while judges consider a myriad of complex legal questions.
33. I first encountered the provisional remedy of enlargement in the 1970s, when I represented a prisoner – Robert Drayton – who was confined at F.C.I. Danbury and who filed a habeas petition alleging that the U.S. Parole Commission had unconstitutionally rescinded his parole.
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8
34. The Honorable T.F. Gilroy Daly, a federal judge sitting in the District of Connecticut, granted Mr. Drayton’s request for enlargement while the decision on the merits was pending. Mr. Drayton returned to his home in Philadelphia and came back to Connecticut for the merits hearing. Judge Daly thereafter ruled in his favor; that decision was upheld in part and reversed in part. See Drayton v. U.S. Parole Commission, 445 F. Supp. 305 (D. Conn. 1978), affirmed in part, Drayton v. McCall, 584 F.2d 1208 (2d Cir. 1978).
35. Judge Daly did not write a decision explaining the enlargement. Given that I knew that the use of enlargement was not always recorded in published decisions and that enlargement had special relevance here, I decided I should learn more about other courts’ discussion of this provisional remedy.
36. The provisional district court remedy of enlargement is not mentioned directly in in federal rules governing the lower federal courts. In contrast, at the appellate level, Federal Rule of Appellate Procedure (FRAP) 23 provides in part that:
While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner be: (1) detained in the custody from which release is sought; (2) detained in other appropriate custody; or (3) released on personal recognizance, with or without surety. While a decision ordering the release of a prisoner is under review, the prisoner must – unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise – be released on personal recognizance, with or without surety.
As that excerpt reflects, the Rule uses language familiar in the context of bail and provides that appellate courts may also determine that a petitioner be detained in “other appropriate custody.”
37. Federal courts at all level are authorized by Congress to decide habeas cases “as law and justice requires.” 28 U.S.C. §2243. The case law also references that, at the district court level, the authority to release a habeas petitioner pending a ruling on the merits stems from courts’ inherent powers. See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). And, as I noted, in these reported decisions, the terms “bail” or “release” are sometimes used instead of or in addition to “enlargement.”
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38. In the last weeks, the saliency of enlargement has prompted me to review more of the law surrounding it. To gather materials and opinions on enlargement, I asked two law students, Kelsey Stimson of Yale Law School and Ally Daniels of Stanford Law School, to help me research what judges have said about enlargement and what others have written. Below I detail some of the governing case law. The Hertz & Liebman Treatise on Habeas also has a section (§14.2) devoted to this issue.
39. Some of the decisions involve requests for release when habeas petitions were pending from state prisoners, and others from federal prisoners, or from people in immigration detention. Further, several appellate cases address the issue of whether a district court order on enlargement was appealable as of right or subject to mandamus.
40. My central point is that, amidst these various debates about appealability and the test for enlargement/release, most circuits have recognized that district courts have the authority to order release pending final disposition of a habeas petition. See e.g., Woodcock v. Donnelly, 470 F.2d 93, 43 (1st Cir. 1972); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974); Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990); Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985); Martin v. Solem, 801 F.2d 324, 329 (8th Cir. 1986); Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981): Baker v. Sard, 420 F.2d 1342, 1342-44 (D.C. Cir. 1969).
41. The Fourth and Eleventh Circuits appear, albeit less directly, to recognize enlargement authority. See Gomez v. United States, 899 F.2d 1124, 1125 (11th Cir. 1990); United States v. Perkins, 53 F. App’x 667, 669 (4th Cir. 2002). A Ninth Circuit opinion from 1989 likewise appears to recognize the power of district courts to grant release pending a habeas decision where there are “special circumstances or a high probability of success.” See Land v. Deeds, 878 F.2d 318 (9th Cir. 1989). Thereafter, another decision, In re Roe, described the Circuit as not having ruled on the issue in terms of state prisoners. See 257 F.3d 1077 (9th Cir. 2001).1
1 Subsequent lower court cases debated whether district courts do possess such authority. See, e.g., Hall v. San Francisco Sup. Ct., 2010 WL 890044, at *2 (N.D. Cal. Mar. 8, 2010) (“Based on the overwhelming authority [of other circuit courts] in support, the court concludes for purposes of the instant motion that it has the authority to release Hall pending a decision on the merits.”); United States v. Carreira, 2016 U.S. Dist. LEXIS 31210, at *4, (D. Haw. Mar. 10, 2016)
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42. A discrete question is the standard for enlarging petitioners. To obtain an order for release pending the merits of habeas decision, the petitioner must demonstrate “extraordinary circumstances” and that the underlying claim raises “substantial claims.” See e.g. Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). Courts have also discussed that release is appropriate when “necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 226; see also Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992). As that Third Circuit decision explained, release was “available ‘only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.’”
43. Some judges have interpreted the “substantial questions” prong to require the underlying claim to have a “high probability of success.” See Hall v. San Francisco Superior Court, No. C 095299 PJH, 2010 WL 890044, *1 (N.D. Cal. Mar. 8, 2010); In re Souels, 688 F. App'x 134, 135 (3d Cir. 2017). That test resembles standards for preliminary injunctive relief and for stays, which include an assessment of the likelihood of success on the merits and of whether the balance of hardships tips in favor of altering the status quo. (And, of course, more can be said about the nuances of these bodies of law as well.)
44. A few cases focus on the health of a petitioner as central to the conclusion that “extraordinary circumstances” exist. For example, in Johnston v. Marsh, the petitioner, Alfred Ackerman, brought a habeas claim alleging that he was convicted in Pennsylvania through a trial that lacked “due process.” 227 F.2d 528 (3d Cir. 1955). Ackerman asked for release pending a decision on the merits of his habeas petition; he argued that he had advanced diabetes and was “rapidly progressing towards total blindness.” Id. at 529. The district court authorized Ackerman to be released to a private hospital. The prison warden (Frank Johnston) went to the Third Circuit invoking sought writs of prohibition and mandamus to order the district court (Judge Marsh) to change his ruling. Rejecting the petitions, the Third Circuit affirmed that district courts possessed the authority to order relocation while the habeas petition was pending. Johnson v. Marsh has been cited in more recent cases to illustrate that findings of
(“[T]his Court declines to address the merits of Petitioner’s bail requests in the absence of definitive guidance from the Ninth Circuit regarding the scope of this Court’s bail authority.”).
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extraordinary circumstances may “be limited to situations involving poor health or the impending completion of the prisoner’s sentence.” Landano, 970 F.2d at 1239.
45. The court in In re Souels addressed what showing of health problems constituted extraordinary circumstances. See 688 F. App’x at 135-36. Sean Souels, who was serving a 46-month federal prison sentence, petitioned for a writ of mandamus directing the court to rule on his writ of habeas corpus and sought release pending the decision. Id. at 134. The court denied Souels bail because “he [did] not describe his medical conditions in any detail or explain how he cannot manage his health issues while he is in prison.” Id.
46. Health is not the only extraordinary circumstance that has been the basis for enlargement. For example, in United States v. Josiah, William Josiah brought a writ of habeas corpus after the Supreme Court invalidated the residual clause of the Armed Career Criminal Act (ACCA) and altered the method for determining whether prior convictions qualify as violent felonies under the ACCA. 2016 WL 1328101, at *2 (D. Haw. Apr. 5, 2016). Josiah, who was serving a federal prison sentence argued that his prior convictions did not qualify as violent felonies and that he should not be subject to the fifteen-year mandatory minimum. The district court concluded that because the issue of retroactivity was pending before the Supreme Court and Josiah would have served his full sentence if the Court held its prior ruling retroactive, release pending the higher court’s ruling was appropriate. Id. at *4-6.
47. In circumstances similar to Josiah, a district judge sitting in the Central District of Illinois issued three orders granting release, termed bail, to petitioners pending resolution of their habeas claims. See Zollicoffer v. United States, No. 1503337, 2017 WL 79636 (C.D. Ill. Jan. 9, 2017); United States v. Jordan, No. 04-20008, 2016 WL 6634852 (C.D. Ill. Nov. 9, 2016); Swanson v. United States, No. 15-03262, 2016 WL 5422048 (C.D. Ill. Sept. 28, 2016).
48. Another case involved enlargement in the context of the military. See Gengler v. U.S. through its Dep't of Def. & Navy, 2006 WL 3210020, at *6 (E.D. Cal. Nov. 3, 2006). As that court explained, a “district court has the inherent power to enlarge a petitioner on bond pending hearing and decision on his petition for writ of habeas corpus.” Id. at *5. The judge also noted that a “greater showing must be made by a petitioner seeking bail in a criminal conviction habeas ‘than would be required in a case where applicant had sought to attack by writ of habeas corpus an
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incarceration not resulting from a judicial determination of guilt.’” The court used the test of “exceptional circumstances and, at a minimum, substantial questions as to the merits.” Id. at 13. The court found exceptional circumstances” based on the fact that the petitioner had been admitted to business school, had been granted permission by his commanding officer to attend, and would be forced to drop out if his custody were not enlarged. The court also ruled that “substantial questions as to the merits” existed because of alleged government’s errors in drafting the petitioner’s service agreement. Id. at *6.

49. As of this writing, a few reported cases discuss COVIDbased requests for enlargement while a habeas corpus proceeding is pending. In addition, many decisions address requests for release under federal statutes as well as other remedies.

50. Given the fast pace of litigation and the many concerns

about people’s well-being, UCLA has created a website that is

regularly updated and compiles materials and decisions related to

COVID. See UCLA Law Covid-19 Behind Bars Data Project, available

at

https://docs.google.com/spreadsheets/d/1X6uJkXXS-

O6eePLxw2e4JeRtM41uPZ2eRcOA_HkPVTk/edit#gid=708926660.

51. Below I provide a few illustrations of decisions since April that are related to COVID and enlargement.

52. On April 7, the Honorable Jesse Furman, sitting in the Southern District of New York, granted on consent a motion styled “for bail” (the term used in the Second Circuit Mapp decision). Judge Furman ordered immediate release under specified conditions, pending the adjudication of the Section 2255 Motion. See United States v. Nkanga, No. 18-CR-00730 (S.D.N.Y., Apr. 7, 2020).

53. A second case involves a class action filed by Craig Wilson and others. See Wilson v. Williams, No. 4:20-cv-00794-JG, 2020 WL 1940882, at *1 (N.D. Ohio Apr. 22, 2020). Seeking to represent a class of all current and future prisoners of the Elkton Federal Correctional Institution (FCI) and a subclass of the medically vulnerable population, they sought relief because their continued incarceration subjected all FCI prisoners to substantial risk of harm in violation of the Eighth Amendment.

54. On April 22, 2020, the federal district court granted in part the request by the Wilson class for emergency relief, which included enlargement of a subclass of prisoners challenging the manner in which the sentence was served and hence cognizable as a habeas petition. See Wilson v. Williams, No. 4:20-cv-00794-JG,

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2020 WL 1940882 (N.D. Ohio Apr. 22, 2020). The Sixth Circuit denied a stay soon thereafter. See Wilson v. Williams, No. 4:20CV-00794, 2020 WL 2308441, at *1 (6th Cir. May 8, 2020).
55. The Wilson case also cited to Money et al. v. Pritzker, No. 1-20 CV 02094, 2020 WL 1920660, at *1 (N.D. Ill. April 10, 2020), a class action seeking relief on behalf of state prisoners, and the Wilson court referenced that I had also submitted a declaration similar to this one in that action. In Money, I discussed enlargement as well as the interaction between civil rights litigation and habeas corpus. Id. at *8–9. The Honorable Robert M. Dow, Jr. invoked my discussion, and the court determined not to grant the emergency relief sought by the plaintiff class. Id.
56. On May 12, 2020, the Honorable Michael Shea issued another decision responding to a petition challenging treatment of prisoners at three facilities that compromise FCI Danbury. In Martinez-Brooks v. Easter, 3-20-cv-00569-MPS, 2020 WL 2405350 (D. Conn., May 12, 2020). Judge Shea granted in part the request for a temporary restraining order and required “the Warden at FCI Danbury to adopt a process for evaluating inmates with COVID-19 risk factors for home confinement and other forms of release that is both far more accelerated and more clearly focused on the critical issues of inmate and public safety than the current process.” Id. at *1. He also ordered expedited discovery and scheduled a June hearing on the request for a preliminary injunction. Id. In that opinion, Judge Shea discussed enlargement as he analyzed the relief sought by the petitioners. Id. at *2
57. Another case has less relevance as it was brought by an unrepresented litigant, Richard Peterson, who had originally sought habeas corpus relief on a claim about education credits and then filed an emergency request for release from a California state prison due to COVID-19. No. 2:19-CV-01480, 2020 WL 1640008, at *1 (E.D. Cal. Apr. 2, 2020). The district court noted that a class action raising COVID claims was pending in another federal court in California and that, while the court had the authority to release a person while a habeas petition was pending, Mr. Peterson had not provided evidence sufficient to meet the test to do so. Id.
Conclusion
58. In sum, COVID-19 is an unprecedented event that, in my view, raises the legal question of whether, in light of the
Declaration enlargement Judith Resnik May 14, 2020

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government mandates for social distancing, sentences (that had been lawful when they were imposed) cannot lawfully be served when the setting puts an individual in a position of untenable risk. Thus, habeas corpus – which addresses the constitutionality of sentences and offers the possibility of release and enlargement – properly provides a jurisdictional basis and remedies for this situation.
59. I need also to note that, in recent years, the Supreme Court has raised questions in many contexts about the remedial powers of federal judges. Whether the topic is nationwide injunctions or commercial contracts, debates have occurred within the Court about the authority of federal judges.
60. Those cases do not address the extraordinary and painful moment in which we are all living. Ordinary life has been up-ended in an effort to keep as many people as possible alive and not debilitated by serious illness. Moreover, the Supreme Court opinions have not focused on the relevance of those remedial debates to situations were confinement can put entire staffs and detained populations at mortal risk. Therefore, judges have the obligation and the authority to interpret statutes and the Constitution to preserve the lives of people living in and working in prisons. It is my hope that this account of earlier uses of enlargement in this District and the dense account of case law and doctrine will be of service to this Court and to the parties in understanding the meaning and import of American law.
Dated: May 14, 2020
/s/ Judith Resnik __________________________ Judith Resnik
Declaration enlargement Judith Resnik May 14, 2020

 Case 1:20-cv-00175-JAW Document 16 Filed 05/21/20 Page 1 of 4 PageID #: 304

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,
Petitioners,
v.
MAINE DEPARTMENT OF CORRECTIONS and RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections, in his official capacity,
Respondents.

CIVIL NO. 1:20-cv-00175-JAW

NOTICE OF SUPPLEMENTAL AUTHORITY Earlier today, May 21, 2020, the U.S. District Court for the Eastern District of Michigan issued a decision in Cameron et al. v. Bouchard, et al., Docket No. 2:20-cv-10949-LVP-MJH, granting equitable and other relief for incarcerated persons endangered by the COVID-19 pandemic. A copy of the Court’s opinion is attached as Exhibit A, and a copy of the Court’s order is attached as Exhibit B. One of the preliminary issues that has been raised in this case is whether the relief sought is available under 28 U.S.C. § 2241, or else whether plaintiffs must only seek relief under a different habeas corpus provision or under a federal civil rights law. Beginning on page 28 of its opinion, the Court in Cameron discusses why §2241 is the proper vehicle for plaintiffs to challenge the continued confinement of medically-vulnerable jail inmates during the COVID-19

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pandemic, and the Court’s analysis is equally applicable to the class of medically-vulnerable prison inmates here.
In addition, one of the issues that has already arisen in this case involves how to define classes and subclasses of prisoners who are especially vulnerable to COVID-19 and are, therefore, entitled to injunctive relief from the Court. Beginning on page 37 of its opinion, the Court in Cameron discusses similar issues and concludes that class relief is appropriate.
Finally, the Court in Cameron, beginning on page 56, discusses the “deliberate indifference” standard as applied to corrections officials who have been generally unwilling to enlarge the custody of medically vulnerable prisoners to permit social distancing. As the court explained at pages 60-61, “in light of Defendants’ awareness of the deathly risk that COVID-19 poses to the medically-vulnerable population, Defendants’ failure to make prompter, broader, and more meaningful use of their authority to implement what appears to be the only solution capable of adequately protecting medically-vulnerable inmates may constitute deliberate indifference under the Eighth Amendment.”
In short, Cameron confirms that preliminary injunctive relief is appropriate under §2241 and that, likewise, certifying a class of medically-vulnerable prisoners is a proper tool for ensuring that Maine prisoners are not unlawfully confined.
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Dated May 21, 2020

Respectfully Submitted,
/s/ Emma E. Bond Emma E. Bond Zachary L. Heiden American Civil Liberties Union of Maine Foundation P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 ebond@aclumaine.org (207) 619-6224 heiden@aclumaine.org
Moe Keshavarzi* Robert Sturgeon* Alex Kuljis* Sheppard Mullin Richter & Hampton LLP 333 South Hope Street, 43rd Floor Los Angeles, CA 90071-1422 213.617.5544 MKeshavarzi@sheppardmullin.com 213-617-5435 RSturgeon@sheppardmullin.com 213-617-4239 AKuljis@sheppardmullin.com
Jodi Nofsinger Miriam Johnson Taylor Asen Berman and Simmons 129 Lisbon Street Lewiston, Maine 04240 jnofsinger@bermansimmons.com (207) 784-7699 mjohnson@bermansimmons.com (207) 784-3576 tasen@bermansimmons.com
Attorneys for Petitioners and Proposed Class
* pro hac vice application pending

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CERTIFICATE OF SERVICE The undersigned certifies that she has electronically filed this date the foregoing NOTICE OF SUPPLEMENTAL AUTHORITY with the Clerk of the Court using the CM/ECF system. This filing is available for viewing and downloading from the ECF system.

Dated: May 21, 2020

/s/ Emma E. Bond Emma E. Bond American Civil Liberties Union of Maine Foundation P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 ebond@aclumaine.org
Counsel for Petitioners

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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

JOSEPH A. DENBOW et al., Petitioner v.
MAINE DEPARTMENT OF CORRECTIONS et al.,
Respondents

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Case No. 1:20-cv-00175-JAW

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DECLARATION OF DR. RYAN THORNELL, Ph.D., IN SUPPORT OF MOTION TO DISMISS
I, Ryan Thornell, Ph.D., declare as follows: 1. I am over the age of 18 years and not myself a party to this action. I understand and believe in the obligations of an oath. 2. I have personal knowledge of the facts stated in this declaration, and if called upon to testify, I would testify to those facts. 3. I am Deputy Commissioner of Corrections for Respondent Maine Department of Corrections (MDOC). I have been Deputy Commissioner since January 2018. 4. As discussed in a prior declaration I filed with the Court, I am in charge of MDOC’s response to the COVID-19 pandemic and I am knowledgeable about the changes to MDOC policies and changes in practices at all MDOC facilities resulting from COVID-19. 5. Although the threat of COVID-19 has meant many changes at MDOC facilities, the prison mail system has proceeded normally. This includes mail to and from federal and state courts. The only change in prison mail during the COVID-19 pandemic has been for inmates on quarantine

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status. Those inmates’ outgoing and incoming mail is held until after the quarantine period due to the potential for contamination by or and exposure to COVID-19.
6. This would only have affected mail for a two-week period for those inmates on quarantine status. I estimate that over the past 15 weeks, approximately 100 inmates have been on quarantine status.
7. The current population of inmates in adult MDOC facilities is 1,818. 8. Because MDOC’s measures to prevent COVID-19 necessarily limited physical access to shared communal spaces, including law libraries, MDOC had the facilities implement plans to provide continued access to law library materials. 9. For example, in mid-April 2020, when MDOC directed the facilities to modify operations to allow for enhanced social distancing practices, Maine State Prison Warden Matthew Magnusson issued a memorandum related to the law library, informing inmates that the Law Librarian would accept written requests through internal mail and conduct rounds across the facility, because congregating in the enclosed space of the law library would not be advisable due to COVID-19 and the hundreds of inmates potentially using the law library. 10. Similar measures are in place at Maine Correctional Center, Bolduc Correctional Facility, and Mountain View Correctional Facility. I declare under penalty of perjury that the foregoing is true and correct.

June 22, 2020

/s/ Ryan Thornell Ryan Thornell, Ph. D. Deputy Commissioner of Corrections Maine Department of Corrections

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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

JOSEPH A. DENBOW et al., Petitioners v.
MAINE DEPARTMENT OF CORRECTIONS et al.,
Respondents

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Case No. 1:20-cv-00175-JAW

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DECLARATION OF LISA MARCHESE, DEPUTY ATTORNEY GENERAL, IN SUPPORT OF MOTION TO DISMISS
I, Lisa Marchese, Deputy Attorney General, declare as follows: 1. I am over the age of 18 years and not myself a party to this action. I understand and believe in the obligations of an oath. 2. I have personal knowledge of the facts stated in this declaration and if called upon to testify, I would testify to those facts. 3. I am the Chief of the Criminal Division within the Office of the Maine Attorney General (“Maine AG’s Office”). 4. In that capacity, I have represented the State of Maine in post-conviction review (“PCR”) proceedings in state court. See 15 MRS section 2121 et. seq. Based on my prior experience, I am familiar with Post-Conviction Review state court proceedings and the statutes and rules governing those proceedings. 5. Pursuant to Maine law, the State of Maine is generally represented in PCR proceedings by the prosecutorial office that represented the State in the underlying criminal action.

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In general, criminal prosecutions and post-conviction proceedings in the State are handled by District Attorneys’ Offices or the Maine Attorney General’s Office.
6. As Chief of the Criminal Division, I frequently communicate with the State’s District Attorneys on a wide range of matters.
7. On April 17, 2020, I reached out via e-mail to all of the respective District Attorneys across the State and asked them to alert me of any PCR petitions related to COVID-19 in state court.
8. At that time, I was aware that one petition for PCR had been filed in Oxford County related to COVID-19. That PCR petition was filed by Joseph Denbow.
9. On June 16, 2020, I again reached out via e-mail to the District Attorneys and asked them to alert the Maine AG’s Office of any PCR petitions filed in state court by inmates relating to COVID-19. In response, I was alerted to a recent PCR petition that had been filed in Cumberland County on June 4, 2020, and forwarded by the Court to the Cumberland County DA’s Office on June 15, related to COVID by Michael Denning, an individual who is currently on probation in the community.
10. On June 22, 2020, I again reached out via e-mail to the District Attorneys and again asked them to alert me to any PCR petitions filed in state court related to COVID-19. In my email communications with the District Attorneys on June 22, I was alerted to a motion filed in Penobscot Superior Court, where an inmate in MDOC custody filed a motion under M.R. Crim. P. 35(c) to reduce his sentence, based on his medical condition and the threat of COVID-19.
11. Based on the responses the Maine AG’s Office received from the District Attorney’s in Maine, I am only aware of two PCR petitions related to COVID pending in state
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12. Further, I am not aware that any attorneys in the Criminal Division are currently handling any PCR petitions in state court related to COVID-19. There is one pending Motion for post-conviction bail based on COVID-19.
I declare under penalty of perjury that the foregoing is true and correct. Executed on June 22, 2020.
/s/ Lisa Marchese Lisa Marchese
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 Case 1:20-cv-00175-JAW Document 40 Filed 07/13/20 Page 1 of 24 PageID #: 964

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,

Petitioners, v.

Case No. 20-cv-00175-JAW

MAINE DEPARTMENT OF CORRECTIONS and RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity,

Respondents

PETITIONERS’ MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO DISMISS

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TABLE OF CONTENTS

Page

INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................2
I. The Court May Grant Habeas Relief to Petitioners Pursuant to 28 U.S.C. § 2241 Given the Extraordinary Circumstances Posed by the COVID-19 Pandemic.....................2
II. The Court May Grant Habeas Relief To Petitioners Under Section 2254 Without Exhaustion Where, As Here, "Its Appears That" State Court Remedies Are Unavailable And/Or Ineffective To Protect The Rights Of The Petitioners And Putative Class Members.......................................................................................................3
A. The § 2254 Exhaustions Requirements Apply Only to Remedies That Are Available At the Time of Filing of the Habeas Petition ..........................................5
B. Class Relief is Critical to Protect the Rights and Lives of the Over 900 Medically-Vulnerable Prisoners Held in DOC Facilities, But is Not Apparently Available In State Court Proceedings ...................................................6
1. Class Relief is Necessary and Critical in this Action ..................................7
2. As Respondents Admit, There is No Established Class Remedy Available In State Court...............................................................................9
3. Filing of Individual PCR Actions By Each Class Member Would Not Provide an Effective or Available Remedy to Protect the Rights of the Petitioners and Putative Class Members ..............................10
4. Respondents Fails to Demonstrate Any Class Remedy is Available or Effective for State Habeas Corpus Under M.R.S. § 5501 .....................15
5. Respondents Fail to Demonstrate That Any Remedy Under the Maine Administrative Procedure Act Is Available or Effective to Protect the Rights of the Putative Class Members.....................................16
6. Respondents Fail to Demonstrate That Any Remedy Is Available To Petitioners Under Maine Criminal Procedure Rule 35.........................15
C. The State Court Exhaustion Requirements Should Be Deemed Satisfied Based On Respondents’ Admissions They Will Likely Oppose The Availability Of Class Remedies And Other Avenues Of Relief In State Court ......................................................................................................................17
D. In The Alternative, The Court Should Defer A Ruling Until The State Court Determines If A Class Remedy Is Available Under Maine Law.................18
III. The Younger Abstention Doctrine Does Not Bar Petitioner Denbow’s Claims ...............19
CONCLUSION ..............................................................................................................................20

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INTRODUCTION Petitioners and putative Class Members in the custody of Respondents seek habeas relief from unconstitutional conditions of confinement during the COVID-19 pandemic that continues to ravage the United States. Petitioners sought relief in federal court because, at the time this petition was filed in May 2020, the state courts were operating at a greatly reduced capacity, with no apparent procedural avenue to adjudicate claims on behalf of the 900+ putative class members who are medically vulnerable to COVID-19. Respondents have sought to dismiss Petitioners’ claims for failure to exhaust state court remedies under 28 U.S.C. § 2254. The motion should be denied. As an initial matter, as set forth in Petitioners’ July 10, 2020 “Memorandum Regarding the Applicability of the Rules Governing Section 2254 Cases,” this Court should not convert the § 2241 Petition to a § 2254 petition. Under established law, moreover, this case presents the type of unusual and exceptional circumstances that justify excusing the prudential exhaustion requirement under 28 U.S.C. § 2241. Even if § 2254 exhaustion requirements apply, the Motion fails because it appears that state court remedies would be unavailable or ineffective to provide the necessary relief in this case. The sole question under § 2254 is whether, at the time Petitioners filed the petition on May 15, 2020, “it appear[ed] that” pursuing state court remedies would be futile, because such remedies were unavailable or ineffective to protect the rights of Petitioners and putative class members. See 28 U.S.C. § 2254(b)(1). That is exactly the case here. At the time Petitioners filed this action, the Maine state courts were at a virtual standstill due to the virus. And although classwide relief is absolutely necessary and critical in this action, the state courts do not appear to offer any class relief for the claims at issue in this case.

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In their motion, Respondents make no showing that class relief is available under the any of the potential remedies on which they rely. Nor do they show that potential remedies such as the Maine Administrative Procedure Act and Maine Criminal Procedure Rule 35 are appropriate to raise the constitutional and federal statutory violations asserted here. Because the § 2254 exhaustion requirement does not apply to remedies that are merely conjectural, and Respondents admit that, at best, it is unknown whether Maine courts would permit class relief under any of the remedies they cite, exhaustion is not required here, and the Motion must be denied.
In addition, Respondents admit that they are trying to have it both ways, arguing in this Court that class relief is available in state proceedings, while acknowledging their intention to argue to the state court against class treatment of Petitioners’ claims. In such circumstances, and given the speed with which the virus can cause irreparable harm to the putative Class, the Court may, and considerations of fundamental fairness and judicial economy mandate that it should, deem any state court remedies exhausted, and also deny the Motion on that basis.
Finally, in reliance on Respondents’ representations to this Court that class remedies are available in state court, Petitioner Denbow filed a motion in his state court post-conviction review proceeding to amend his complaint to include class allegations. A ruling on the motion is pending. In the event the Court is not inclined to deny the Motion outright, Petitioners submit that the Court may defer a final ruling on this Motion and retain jurisdiction until the issue of whether class relief is available is resolved in the state courts.
ARGUMENT I. The Court May Grant Habeas Relief to Petitioners Pursuant to 28 U.S.C. § 2241
Given the Extraordinary Circumstances Posed by the COVID-19 Pandemic As set forth in Petitioners’ “Memorandum Regarding the Applicability of the Rules Governing Section 2254 Cases” filed July 10, 2020 (the “July 10 Memorandum”), Petitioners

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submit that 28 U.S.C. § 2241 remains the proper vehicle for relief in this action. See July 10 Memorandum at 2-6 & n.4, ECF No. 38 (July 10, 2020). The First Circuit has recognized that, where “unusual circumstances” exist, a federal court may grant habeas relief pursuant to Section 2241 without exhaustion of state remedies. Benson v. Sup. Ct. Dept. of Tr. Ct., 663 F.2d 355, 358 (1st Cir. 1981) (explaining that “Section 2241, which empowers courts to issue writs and makes no mention of exhaustion, has been interpreted to allow a court to grant a writ before a defendant has exhausted his claim at trial, but only in unusual circumstances”); see also Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977) (explaining that Section 2241 provides a remedy for a challenging the conditions of confinement) (citing, e.g., Braden v. 30th Judicial Circuit Ct. of Ky., 410 U.S. 484 (1973)).1 Accordingly, for the reasons set forth in Petitioners’ July 10 Memorandum, and the extraordinary circumstances posed by the COVID-19 pandemic and its imminent threat to the health and lives of the Class, the Court should determine Section 2241 is applicable here, and that exhaustion is not required. II. The Court May Grant Habeas Relief To Petitioners Under Section 2254 Without
Exhaustion Where, As Here, “It Appears That” State Court Remedies Are Unavailable And/Or Ineffective To Protect The Rights Of The Petitioners And Putative Class Members Respondents contend that the Petitioners’ claims should be dismissed “because Petitioners failed to exhaust administrative remedies as required by 28 U.S.C. § 2254(b) and (c).” (Motion, at p. 1.) Section 2254 provides that, in general, habeas relief shall not be granted to a person in custody pursuant to a judgment of a state court unless “the applicant has exhausted the

1 Although the Miller decision applied to a federal prisoner challenging conditions of confinement in a § 2241 proceeding, the court cited to the Supreme Court’s reasoning in Braden v. 30th Judicial Circuit Court, in which a prisoner serving a state court sentence filed a habeas petition under 28 U.S.C. §§ 2241 and 2254, challenging a speedy trial violation on separate charges. 410 U.S. 484, 485-86 (1973).

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remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1). There are at least two escape hatches from the general exhaustion requirements; exhaustion of available state court remedies is not required where “it appears that” (i) state court corrective processes are not available, or (ii) circumstances exist that render such process ineffective to protect the rights of the Petitioners and other putative Class Members. 28 U.S.C. 2254(b)(1)(B)(i) & (ii).2 In this case, the Petitioners and putative Class Members are excused from the exhaustion of state court remedies under either or both of these exceptions.
On a motion for dismissal of a habeas petition without a hearing, the well-pleaded allegations of the petition must be assumed to be true. United States v. Mosquera, 845 F.2d 1122, 1124 & n.2 (1st Cir. 1988). To support dismissal, Respondents argue, without supporting authority, that (i) Petitioners might have been able to bring an action for habeas class relief on the claims at issue herein in state court Post-Conviction Review (“PCR”) proceedings or common law habeas, (ii) Petitioners were potentially entitled to file a claim under the Maine Administrative Procedure Act for court review of the DOC’s decisions, and (iii) Petitioners may have been entitled to file motions to correct an illegal sentence in their individual cases under Maine Criminal Procedure Rule 35. 3 (Motion, at pp. 10, 13-15.) As shown below, Respondents

2 Although Respondents also refer to § 2254(c), (Motion at 2, 10), this section only applies in determining whether a habeas petitioner has successfully exhausted state remedies, not whether an exception to the exhaustion requirement applies. See 28 U.S.C. § 2254(c). For the latter question, the sole question is whether it “appears that” exhaustion would be futile. See id. § 2254(b)(1).
3 Respondents argue that federal courts have no jurisdiction to excuse exhaustion except as the statute expressly allows, relying on Ross v. Blake, 136 s. Ct. 1850, 1857 (2016). But here, the plain language of the statute supports Petitioners, by excusing the exhaustion requirement when “it appears that” state remedies are unavailable or ineffective to satisfy the rights at issue. 28 U.S.C. § 2254(b)(1).

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have not rebutted Petitioners’ showing that it appears that none of these potential remedies were available and effective at the time of filing of the Petition to protect the rights of the putative Class Members. Nor have Respondents shown that class relief—which is a crucial part of the requested relief during the COVID-19 pandemic—is available under any of the procedural vehicles on which Respondents rely. Accordingly, the Motion must be denied.
A. The § 2254 Exhaustions Requirements Apply Only to Remedies That Are Available At the Time of Filing of the Habeas Petition
As a threshold matter, the Section 2254 exhaustion provisions apply only to a petitioner’s failure to exhaust state court remedies that are available “at the time he files his application in federal court.” Fay v. Noia, 372 U.S. 391 (1963), overruled in part on other grounds by Wainwright v. Sykes, 433 U.S. 72 (1977)4; Dana v. Tracy, 360 F.2d 545, 548 (1st Cir. 1966) (availability of state court remedies is to be assessed “at the time the application was made for writ of habeas corpus”). This rule applies “even if at some earlier or later stage a remedy was or will become available.” R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure, Vol. 2, § 23.4[a][1].
Importantly, although the decisions in Fay and Dana predated the statutory amendments in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the futility exceptions to the exhaustion requirement have remained the same. As detailed in Dana, no exhaustion was required under the then-applicable version of § 2254 when “‘there is either an absence of available State corrective process or the existence of circumstances rendering such process

4 As described by the First Circuit, Wainwright stands for the limited proposition that “procedural default in the state court acts as an adequate and independent state ground for decision, precluding the granting of a federal habeas corpus petition.” Gagne v. Fair, 835 F.2d 6, 9 (1st Cir. 1987) (citing Wainwright, 433 U.S. 72).

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ineffective to protect the rights of the prisoner.” Dana, 360 F.2d at 547 n.1 (quoting 28 U.S.C.

§ 2254 (1966)). Likewise today, § 2254 incorporates the same exception to the exhaustion

requirement when “there is an absence of available State corrective process,” or “circumstances

exist that render such processes ineffective to protect the rights of the applicant.” 28 U.S.C.

§ 2254(b)(1) (2020); see also Jones v. Jones, 163 F.3d 285, 298 (5th Cir. 1998) (stating the post-

AEDPA “futility exception appears to be derived from the language of pre-AEDPA § 2254(b)”).

Accordingly, as in Fay and Dana, the inquiry under the modern-day § 2254(b)(1) must remain

the same, and focus on the State court remedies available at the time of filing the Federal court

petition.

Respondents devote much of their brief to arguing that since the time of filing of the

Petition, Maine courts “are increasingly back to normal operations” (Motion, at p. 2), that the

Maine state courts may return to normal processing of cases by September, and that subsequent

to the filing of the Petition, “it has since become clear” that the Maine courts will proceed with

Mr. Denbow’s state action (Motion, p. 10). These and all of Respondents’ other contentions

regarding changes in state court operations occurring post-petition are irrelevant, and should be

given no weight by the Court. FED. R. EVID. 402 (“Irrelevant evidence is not admissible”).

B. Class Relief is Critical to Protect the Rights and Lives of the Over 900 Medically-Vulnerable Prisoners Held in DOC Facilities, But is Not Apparently Available In State Court Proceedings
A state remedy is not available, and hence exhaustion is not required, if the availability or

effectiveness of a proposed remedy is merely conjectural at the time of filing of the petition. To

invoke an exception to the exhaustion requirement, Petitioners must show only that “it appears

that” State corrective processes are unavailable or ineffective. 28 U.S.C. § 2254(b)(1). Indeed,

where a petitioner has not exhausted state remedies, “the court may still grant habeas relief

when it appears that requiring the petitioner to exhaust his remedies is futile.” Banks v. Smith,

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377 F. Supp. 2d 92, 95 (D.D.C. 2005) (citing Piercy v. Black, 801 F.2d 1075 (8th Cir.1986); Sarzen v. Gaughan, 489 F.2d 1076 (1st Cir.1973); Layton v. Carson, 479 F.2d 1275 (5th Cir.1973)) (emphasis added).
Indeed, in evaluating section 2254’s exhaustion requirement, the Supreme Court has previously found there was no “available” procedure when it was only “a matter of conjecture” whether “the State would have heard petitioner’s claims in any of the suggested alternative proceedings.” Wilwording v. Swenson, 404 U.S. 249 (1971) superseded by statute on other grounds as stated in Woodford v. Ngo, 548 U.S. 81 (2006). As another court explained, exhaustion of remedies was not required where it was not clear that claimed remedy was generally available and “State has not produced any precedent indicating [otherwise].” Jones v. Washington, 15 F.3d 671, 674 (7th Cir.), cert. denied, 512 U.S. 1241 (1994), overruled in part on other grounds as stated in Wilkinson v. Cowan, 231 F.3d 347 (7th Cir. 2000).
Here, although class relief is critical and necessary in this action to protect the rights, and potentially the lives, of the over 900 putative Class Members, Respondents not only fail to show class relief is clearly available, they admit that the “reality is no one know whether Maine courts will allow such class claims.” (Motion, at p. 18.) Because Respondents have failed to show that any class remedy is clearly available, and admit that the availability of such relief is conjectural, exhaustion is not required, and the Motion must be denied.
1. Class Relief is Necessary and Critical in this Action Petitioners propose to represent a class of all prisoners held in DOC facilities who are at high risk to COVID-19 due to their age and/or underlying health conditions. According to the DOC, there are over 900 such persons incarcerated in DOC facilities who are at high risk to COVID-19. See ECF 1-6, Sideris Decl. Att. B, (May 4, 2020 email from Benjamin Bean,

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Director of Classification, DOC, stating that there were 924 prisoners with underlying conditions in DOC prisons in addition to Petitioner Denbow).
Given the characteristics of the virus, its rapid spread among persons who are close together in congregate settings, the Class Members’ underlying medical conditions and the conditions of their confinement in DOC facilities, Petitioners and the other Class Members face the risk of contracting COVID-19 and, within days, suffering severe physical injury, illness, and possibly death. See Medeiros v. Martin, 2020 U.S. Dist. LEXIS 77118 at *1 (D. R.I. May 1, 2020) (explaining the mortality rate from COVID-19 for high risk persons is approximately 15%); Parish Decl., ECF 1-9, ¶¶ 2, 11-12 (COVID-19 spreads rapidly in congregate conditions, and infectious diseases are documented to spread quickly in prisons); Goldenson Decl., ECF No. 1-11, ¶ 14 (the lack of pre-existing or herd immunity “allows for very rapid chains of transmission” of the virus). Indeed, according to recent reports from the San Quentin prison, it “took only days” for recently transferred prisoners from another prison in Chino to spread the virus to “half the inmates tested” in the San Quentin facility.5
Although the State of Maine and its representatives admit that physical distancing is necessary to avoid spread of the virus,6 in Maine DOC facilities this is all but impossible. Prisoners in DOC are housed together, sometimes in dorms with fifty or more other persons, with whom they unavoidably come into close contact each day. Sideris Decl. Att. A, ECF 1-6; Denbow Decl. ¶¶ 16-17, ECF 1-1; Ragsdale Decl. ¶¶ 13-14, ECF1-3. They generally sleep in

5 Timothy Williams and Rebecca Griesbach, San Quentin Prison Was Free of the Virus. One Decision Fueled an Outbreak, New York Times (June 30, 2020), available at https://www.nytimes.com/2020/06/30/us/san-quentin-prison-coronavirus.html.
6 See Declaration of Dr. Nirav Shah ¶¶ 9, 11, 18-20, 31, Cavalry Chapel of Bangor v. Mills, Docket No. 20-cv-156-NT, ECF No. 20 (May 8, 2020) (“Shah Decl.”),

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close proximity, two to four in a cell, and share sinks, toilets, and showers with the dozens of other prisoners. Denbow Decl., ¶ 16, 17; Ragsdale Decl., ¶ 13, 14. Class members spend much of their days in small, crowded dayrooms where physical distancing is impossible. Denbow Decl., ¶¶ 22; Ragsdale Decl., ¶ 19. When traveling through the facilities for meals or otherwise, prisoners are bunched together and cannot physically distance because there is not enough space. Id. Such conditions are perfect for the spread of the virus. See Goldenson Decl. ¶¶ 15, 20, 25-28. In short, the class members face the “‘substantial risk’ of harm . . . from being confined in close quarters in defiance of the sound medical advice that all other segments of society now scrupulously observe.” Savino v. Souza, No. 20-10617-WGY, 2020 U.S. Dist. LEXIS 61775 (D. Mass 2020), at *13.
In short, all of the Class Members face the same risks of serious illness or death due to COVID-19, and all are all bound by common questions of law and fact, including (i) whether the conditions of their confinement in light of the pandemic violate the Eighth Amendment, and (ii) whether Respondents’ refusal to grant medical furloughs or home confinement to allow them to physically distance constitute deliberate indifference and a violation of the Americans with Disabilities Act. Given the urgent risks posed by the COVID-19 pandemic, and the systemic nature of the harm, proceeding as a class is critical to protecting the rights of Petitioners and putative Class Members.
2. As Respondents Admit, There is No Established Class Remedy Available In State Court
Despite the necessity of class relief, it does not appear that any class remedy is available to Petitioners and the putative Class Members under state law. To the contrary, state law provides that petitions for post-conviction review “may attack only a single proceeding.” M.R. Crim. P. 67(b). The Maine rules provide that petitions for post-conviction review are governed

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by the criminal rules, not by the rules of civil procedure, such as Rule 23 allowing class actions. See M.R. Crim. P. 65 Committee Advisory Notes (stating “the present approach does not contemplate that the Maine Rules of Civil Procedure govern any aspect of the proceeding”). Further, state law provides that the post-conviction review procedures are the “exclusive method” for “reviewing post-sentencing proceedings occurring during sentences.” 15 M.R.S. § 2122. Under their plain terms, those procedures do not appear to provide for class relief. 15 M.R.S. §§ 2121 – 2132.
Hence, as Respondents admit, the availability of a class remedy in state court is conjectural at best. Because a petitioner is not required to exhaust conjectural remedies, Jones, 15 F.3d at 674, the Motion must be denied.7
3. Filing of Individual PCR Actions By Each Class Member Would Not Provide an Effective or Available Remedy to Protect the Rights of the Petitioners and Putative Class Members
Respondents assert that a remedy is available to the individual Petitioners and Class Members because each could separately file individual PCR claims in state court to challenge the conditions of their confinement. Respondents contend such a remedy could be available because the state courts are “increasingly back to normal operations” and there is a plan for that to occur by September, and they assert that the “mere passage of time” in state court processing of claims

7 Relying on Roman v. DiGugielmo, 675 F.3d 204 (3rd Cir. 2012), Respondents argue that Petitioners must show it is “certain” that the remedy is not available. (Motion, at 18). But that statement in Roman was nothing more than dicta because the court declined to “address the issue of exhaustion in [that] case.” Roman, 675 F.3d at 209. More importantly, requiring Petitioners to prove “certainty” would contradict the controlling statutory standard merely requiring Petitioners to show that it “appears that” state remedies are unavailable or ineffective. See 28 U.S.C. § 2254(b)(1). Roman is not applicable here.

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is not alone sufficient to render a remedy unavailable or ineffective under § 2254. (Motion, at p. 2, 7, 11.)
These contentions have no merit, for several reasons. First, as noted, whether a remedy is available is to be determined as of the time of filing of the petition, and therefore whether the Maine courts are getting back to more normal operations now, after their prior shutdown, is not relevant. Dana, 360 F.2d at 548. At the time the Petition was filed here, the Maine Judicial Branch was operating with reduced court hours,8 and had cancelled or delayed all “criminal matters (except as related to the incarceration of a defendant).” See PMO-SJC-1 (Apr. 14, 2020). State courts were allowed to “schedule and hear only the following” criminal proceedings: “[a]rraignments and first appearances of defendants held in custody,” and “[m]otions for review of bail of defendants held in custody.” Id. Additionally, although Mr. Denbow filed a motion for bail on April 13, and another motion requesting an emergency hearing on bail on April 23, the State opposed allowing even a hearing on Mr. Denbow’s emergency request for bail, and as of May 15 when the Petition was filed, Denbow had not received any order from the Court regarding his case. See ECF 1-1, Denbow Decl., ¶ 27; ECF 31-11, Ex. K, at p. 2 of 3 (May 20, 2020 email from clerk of the Maine court, transmitting to Denbow’s counsel the Maine court’s order assigning a judge to Mr. Denbow’s PCR case, and explaining that the order was not previously transmitted “[d]ue to the current situation and limited staffing”).9 Respondents’ contentions as to what has happened since that time are not relevant.

8 Public Information Office, Maine Supreme Judicial Court (Mar. 22, 2020), https://www.courts.maine.gov/covid19/reduction-court-hours-march23.pdf.
9 A copy of the current docket for Mr. Denbow’s state PCR case is submitted herewith as Exhibit B.

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Second, Respondents’ contentions that the “mere passage of time” and delay in processing of state remedies does not render a remedy ineffective misses the mark entirely. (Motion, at p. 11.) This is not an ordinary case where a habeas petitioner contends he or she is being detained unlawfully, but the only harm the petitioner may suffer while the state court process plays out is the harm of continuing to be unlawfully confined. In this instance, the Petitioners and putative Class Members are subject to a high risk of serious illness or even death in a matter of days if they contract the virus, and as such may suffer irreparable harm while waiting for the state courts to process a case. In such circumstances, state procedures are ineffective to protect Petitioners’ rights, because “delay . . . geld[s] state procedures so as to render the exhaustion requirement meaningless.” Shelton v. Heard, 696 F.2d 1127, 1128 (5th Cir. 1983).
Moreover, proceeding on an individual basis in state post-conviction reviews is not feasible when the risks of COVID-19 to medically vulnerable prisoners—and the State’s refusal to adequately protect prisoners from those risks—are common to all claims. This is precisely what the Court recognized in McPherson v. Lamont, considering similar challenges by (among other petitioners) persons serving sentences for state court convictions. No. 3:20CV534 (JBA), 2020 WL 2198279, at *7 (D. Conn. May 6, 2020). In McPherson, the Court acknowledged that, to be effective, state court relief must be available not only in theory, but also in practice. Id. As such, the question was whether the state court system would be able to expeditiously process a “massive volume of emergency habeas petitions—a number potentially in the hundreds or thousands, given the size of the putative class[.]” Id. Because the answer was “no,” the court allowed the plaintiffs to “seek habeas relief under § 2241 without exhausting state court

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remedies.” Id. at *8. The court reached this holding despite “the Connecticut judiciary’s best efforts in the face of an unprecedented global pandemic.” Id. at *7.10
Likewise here, it would not be feasible for the Maine Superior Court to expeditiously process 900+ individual petitions, especially during the already difficult logistical challenges posed by the COVID-19 pandemic. Such an influx of petitions would be especially difficult to process, if not impossible, if the over 900 prisoners were to proceed in their individual cases without representation, as would be all but assured absent the option of class representation. Moreover, due to the COVID-19 pandemic and the dangers posed by congregating in enclosed spaces, prisoners in DOC facilities do not have normal access to law libraries, and instead are required to go through a complex process of requesting materials in writing or by email, and the DOC may subsequently make materials available by conducting rounds through the facilities. See ECF 32, Declaration of Dr. Ryan Thornell, Ph.D, In Support of Motion to Dismiss, ¶¶ 8-10. Such a process would make it all but impossible for any person seeking to research to bring a legal petition, but especially non-legally trained inmates, as one must normally review the library materials available to know which materials one needs.
Further, due to the prioritization of other matters, the Maine courts often put PCR proceedings at the bottom of the list. See Declaration of Devens Hamlen, Esq., ¶ 10. With the back-up of criminal cases that were not processed normally due to the COVID-19 shutdown, a wave of over 900 PCR cases would almost certainly overwhelm the courts. Id. Indeed, even under normal circumstances, obtaining PCR relief is a lengthy and time-consuming process,

10 Although the McPherson court was applying the exhaustion exception under § 2241, its focus on the realities imposed by the COVID-19 pandemic and the realities of hundreds of petitions being filed in state court, are just as relevant in considering whether it appears that state court remedies are “available” or “ineffective” under § 2254.

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involving the period of time that it takes to assign a petition to a specific justice or judge, M.R. Crim. P. 69A(a); to promptly examine the petition under Rule 70, M.R. Crim. P. 70; to allow for the State to respond, M.R. Crim. P. 71; to provide the conference of all parties pursuant to M.R. 72A; to allow for assignment of counsel, M.R. Crim. P. 69; and to allow any proceedings on bail or an evidentiary hearing, M.R. Crim. P. 73, 74.
In sum, to rule in Petitioners’ favor, the Court need not hold that remedies are never available in state court; rather, the Court need only conclude that, at the time Petitioners filed their petition in Federal court, it appeared that state court remedies were not “available,” or would have been “ineffective,” to handle an onslaught of hundreds of petitions challenging unlawful conditions under COVID-19. COVID-19 and its effects present a paradigm case for exceptional circumstances which render the state court individual remedy ineffective under § 2254. Given the extremely unusual circumstances created by COVID-19, the over 900 putative Class Members at risk of serious illness or death would almost certainly be unable to obtain a timely decision on their claims, and could suffer irreparable harm before the state courts were able to reach their cases. Accordingly, federal relief is necessary and proper. See, e.g., Granberry v. Greer, 481 U.S. 129, 134 (1987) (acknowledging that courts may dispense with exhaustion in “rare cases where exceptional circumstances of peculiar urgency are shown to exist”) (quoting Rose v. Lundy, 455 U.S. 509 (1982), superseded in part by statute on other grounds as stated in Ralston v. Dir., Tx. Dept. of Crim. Just., 2011 U.S. Dist. LEXIS 68222 (E.D. Tex. 2011); 2 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure § 23.4[a][ii], 1322-26 (7th ed. 2015) (explaining that federal courts have found state corrective process to be ineffective when “requiring exhaustion would cause irreparable damage to the petitioner’s federal rights,”

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for reasons “including that undue delay in the state courts risks mooting the petitioner’s federal rights before he reaches the federal courts”).
4. Respondents Fails to Demonstrate that Any Class Remedy is Available or Effective for State Habeas Corpus Under 14 M.R.S. § 5501
Respondents contend that each Petitioner and putative Class Member could file a petition for habeas corpus under 14 M.R.S. § 5501. They make this argument even though, under state law, the writ is only available if a person has no other available means of redress, Haynes v. Robbins, 158 Me. 17, 24, 177 A.2d 352 (1962), and the state PCR procedures provide that they are the exclusive state remedy for post-conviction review. 15 M.R.S. § 2122. Even if this were not the case, the proposed remedy under 14 M.R.S. § 5501 is to subject to the same failings rendering it ineffective to protect the putative Class Members’ rights as is the state PCR remedy. Filing of individual state habeas actions by each putative Class Member would not be an effective or available remedy for the same reasons set forth in Section B.3 immediately above, and there is a substantial danger of irreparable harm occurring before any state remedy could ever be processed. And although Respondents have previously argued that Petitioners may be able to file a class action under 14 M.R.S. § 5501,11 (in reliance upon which Petitioners have sought to pursue this avenue in State court, see infra II.D), Respondents now concede that they will oppose class treatment in state court.

11 See Denbow v. Maine Dep’t of Corr., No. 1:20-CV-00175-JAW, 2020 WL 3052220, at *17 & n.7 (D. Me. June 8, 2020) (stating that “Respondents argued . . . at oral argument, that class actions are available in Maine under a common law habeas corpus petition and referred to a common law habeas petition involving a juvenile detainee at Long Creek Youth Development Center, indicating that the Petitioners could have brought a state common law class habeas corpus action”).

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5. Respondents Fail to Demonstrate That Any Remedy Under the Maine Administrative Procedure Act is Available or Effective to Protect the Rights of the Putative Class Members
Respondents assert that Section 11001 of Title 5 of the Maine Administrative Procedure Act (“MAPA”) may provide a potential remedy for the claims asserted herein. Under Section 11001, a party is permitted to bring a court action to challenge a final agency decision. Such a remedy would not be available or effective in the circumstances, given the long time frame for administrative actions, including the time required for preparation and submission of preparation of the administrative record (5 M.R.S. § 11005), and the status of processing of actions in the Maine courts at the time of filing of this Petition. Moreover, Respondents admit that it is unknown whether class procedures apply to any of the potential remedies on which they rely. (Motion, at pp. 17-18.) Because there is no MAPA remedy that is apparently available to provide Petitioners with the emergency class relief they seek, MAPA cannot serve as a basis for granting the Motion.
6. Respondents Fail to Demonstrate That Any Remedy Is Available To Petitioners Under Maine Criminal Procedure Rule 35
Respondents also refer to Maine Criminal Procedure Rule 35, which allows a person convicted of a crime to file a motion in the criminal case for correction of “an illegal sentence or a sentence that was imposed on an illegal manner.” The Rule also allows reduction of a sentence after the sentence has commenced, on the ground of “mistake of fact that existed as the time of sentencing.” Me. Crim. Proc. Rule 35(c)(2). Hence, by its terms, Rule 35 addresses defects in sentencing, not impermissible conditions in a prison facility which arise only after sentencing. Because the rule is intended to address defects in sentencing, a motion for relief under it “must be made within a year after a sentence is imposed.” Me. Crim. Proc. Rule 35(a).

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Accordingly, it does not appear there is any basis to conclude the remedy is applicable to

the types of claims the Petitioners and Class Members assert in this case. Respondents’

contentions as to Rule 35 also fails because, where a remedy is procedurally barred under state

law, including where it is time-barred, the remedy is not available for purposes of Section 2254. See, e.g., Carsetti v. Maine, 932 F.2d 1007, 1011 (1st Cir. 1991) (claim exhausted for purposes of

Section 2254 because petitioner failed to raise it in state court proceedings and was procedurally

barred from doing so). Even if this vehicle were applicable to the type of claims asserted by

Petitioners in this case (which it is not), given the one year time limit, it would almost certainly

not be available or effective for a large portion of the putative Class. Finally, Rule 35 provides

only for a motion to be filed in a convicted person’s criminal case; it does not provide any basis

for class relief.

C. The State Court Exhaustion Requirements Should Be Deemed Satisfied Based On Respondents’ Admissions They Will Likely Oppose The Availability Of Class Remedies And Other Avenues Of Relief In State Court
Respondents concede that although they are arguing to this Court that there are

unexhausted remedies available to Petitioners in state court, in state court they may take the

position that such remedies are not available to Petitioners. See Motion, at p. 13, n. 10 (stating

that Respondents do not concede that the State will not contend in state proceedings that

Petitioners are foreclosed by state law from obtaining the claimed “other avenues of relief”); and

p. 17, n. 12 (stating that Respondents will likely oppose class treatment of the claims at issue in

state court).

The federal courts, however, have rejected the notion that a state may escape federal

court habeas review by arguing to the federal court that remedies are available to the petitioner in

state court, but then turning around and taking the position in state court that the petitioner is not

entitled to such relief under state law. In such circumstances, the courts deem that the exhaustion

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requirements have been satisfied. Russell v. Rolfs, 893 F.2d 1033 (9th Cir. 1990) (holding that exhaustion requirements were satisfied where state argued to District Court than remedies were available to plaintiff under state law, then argued to state court that procedural default barred plaintiff from pursuing those remedies). Similarly here, this Court should not countenance Respondents’ attempts to have it both ways, when that position would leave Petitioners without an available and effective avenue to assert their weighty constitutional and statutory claims. Accordingly, any state court remedies should be deemed exhausted, and the Motion should be denied
D. In The Alternative, The Court Should Defer A Ruling Until The State Court Determines If A Class Remedy Is Available Under Maine Law
As mentioned in the Motion, in reliance on Respondents’ representations to this Court that class remedies are available in state court, Petitioner Denbow filed a motion to amend his state court petition to include class allegations. A copy of the motion to amend is attached hereto as Exhibit A. Given the gravity of the potential harm to the putative Class, and the rapid spread of the virus once it takes hold, Petitioners could suffer irreparable prejudice if they are forced to bounce back and forth from court to court while the State argues one position to this Court, and another to the state court. In the event the Court is not inclined to deny the Motion outright, based on both fundamental fairness and considerations of judicial economy, Petitioners submit that the Court may defer a ruling on the Motion or stay proceedings and retain jurisdiction until the state court rules on whether Denbow’s state petition will include class relief or remedies are exhausted. Indeed, even if a federal court believes state remedies have not been exhausted, it may stay the federal proceeding pending state exhaustion. See Rhines v. Weber, 34 U.S. 269, 278 (2005). At least the same solicitude is required here, given the serious issues at play.

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III. The Younger Abstention Doctrine Does Not Bar Petitioner Denbow’s Claims Finally, Respondents cite Younger v. Harris, 401 U.S. 37 (1971), and ask this Court to
bar Petitioner Denbow’s claims based on Denbow’s state court action, which is being pursued not by them, but against them. This contention lacks merit because the fundamental requirement of Younger abstention: a federal plaintiff seeking to enjoin a state proceeding, is absent here.
“The doctrine established by Younger v. Harris and its successors forbids federal courts from enjoining ongoing state proceedings,” Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 100 (2d Cir. 2004) (emphasis added). Younger is “inapplicable” to a parallel litigation in which the federal plaintiff “has not asked that any state proceeding be enjoined.” Williams v. Lambert, 46 F.3d 1275, 1282 (2d Cir. 1995) (vacating Younger stay). “Abstention is not in order simply because a pending state-court proceeding involves the same subject matter.” Sprint Comms. v. Jacobs, 571 U.S. 69, 72 (2013); see also Lambert, 46 F.3d at 1282 (explaining that the possibility of preclusion arising during parallel litigation “does not present the issues of state and federal comity with which Younger is concerned”); Omar v. 1 Front St. Grimaldi, Inc., No. 16cv-5824, 2019 WL 1322614, at *6 (E.D.N.Y. Jan. 8, 2019) (declining to apply Younger “because no one is trying to enjoin” the state labor investigation that the federal defendants alleged to be in progress).
Mr. Denbow has not asked this Court to enjoin any ongoing state proceeding or interfere with an action being prosecuted by Respondents. Instead, he has asked only that the Court rule that Respondents’ acts violate the Eighth Amendment, the ADA, and the Rehabilitation Act, and that the Court order Respondents to remedy these unconstitutional and unlawful conditions— including the impossibility of physically distancing—and allow transfer to the community for him to safely avoid contracting the virus. Accordingly, Younger is not applicable.

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Respondents also argue that an order from this Court releasing Mr. Denbow would interfere with his pending state court action by effectively terminating it. But to the extent that granting relief in the Federal case would render Mr. Denbow’s state case moot, terminating a case because of mootness is not at all the same as seeking to enjoin it. Mr. Denbow is seeking only to require Respondents to exercise their authority to grant medical furlough or home confinement, under which Respondents and the state courts would continue to have jurisdiction over him.
CONCLUSION For all of the foregoing reasons, Petitioners respectfully request that Respondents’ Motion be denied in its entirety. In the event the Court is not inclined to deny the Motion, Petitioners respectfully submit that the Court should defer a ruling on the Motion and retain jurisdiction at least until the state court issues a ruling on whether Petitioner Denbow’s petition may be amended to include class allegations.

Dated: July 13, 2020
4848-8807-7250.1

Respectfully Submitted,
/s/ Emma E. Bond Emma E. Bond, Esq. Zachary L. Heiden, Esq. American Civil Liberties Union of Maine Foundation P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 ebond@aclumaine.org (207) 619-6224 heiden@aclumaine.org
Moe Keshavarzi* Robert Sturgeon* Alex Kuljis* Sheppard Mullin Richter & Hampton LLP 333 South Hope Street, 43rd Floor Los Angeles, CA 90071-1422 213.617.5544
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MKeshavarzi@sheppardmullin.com 213-617-5435 RSturgeon@sheppardmullin.com 213-617-4239 AKuljis@sheppardmullin.com J
Jodi Nofsinger Miriam Johnson Taylor Asen Berman and Simmons 129 Lisbon Street Lewiston, Maine 04240 jnofsinger@bermansimmons.com (207) 784-7699 mjohnson@bermansimmons.com (207) 784-3576 tasen@bermansimmons.com A
Attorneys for Petitioners and Proposed Class
* pro hac vice application pending

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CERTIFICATE OF SERVICE

The undersigned certifies that she has electronically filed this date the foregoing Opposition to Respondents’ Motion to Dismiss with the Clerk of the Court using the CM/ECF system. This filing is available for viewing and downloading from the ECF system.

Dated: July 13, 2020

/s/ Emma E. Bond

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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

JOSEPH A. DENBOW et al., Petitioners,
v. MAINE DEPARTMENT OF CORRECTIONS et al.,
Respondents.

)

)

)

)

)

No. 1:20-cv-00175-JAW

)

)

)

)

)

ORDER ON CONVERSION OF PETITION, APPLICATION OF HABEAS RULES, AND DISCOVERY REQUESTS
Respondents request that the Court convert a habeas petition brought pursuant to 28 U.S.C. § 2241 to one brought under 28 U.S.C. § 2254. Because the Court is not required to do so under First Circuit caselaw and doing so could create potentially troubling collateral consequences for Petitioners, the Court declines to do so. The Court exercises its discretion to apply the Rules Governing Section 2254 Cases and, pursuant to Rule 6 of those rules, finds good cause for most of Petitioners’ discovery requests, including their requested depositions. I. PROCEDURAL BACKGROUND
On June 15, 2020, the Court issued a scheduling order requiring Petitioners in this matter, Joseph Denbow and Sean Ragsdale, to send discovery requests to Respondents, the Maine Department of Corrections and Commissioner Randall Liberty, that same day. Order on Jt. Proposed Scheduling Order at 2-3 (ECF No. 29). The Court also required the parties to file a joint proposal on areas of discovery, “including objections by Respondents for lack of good cause under Rule 6(b) of the

Case 1:20-cv-00175-JAW Document 41 Filed 07/15/20 Page 2 of 14 PageID #: 1016
Rules Governing Section 2254 Cases,” by June 17, 2020. Id. at 3. On June 17, 2020, the parties complied with the Court’s order. Jt. Status Update and Statement of Disc. Reqs. by Pet’rs & Objs. by Resps. (ECF No. 30) (Jt. Status Update).
In the parties’ joint filing, Petitioners stated that they did not object to the Court applying the Rules Governing Section 2254 Cases to this case for purposes of discovery. See id. at 2-3. However, they contended that the Court should not convert their petition from one brought under 18 U.S.C. § 2241 to one brought under 18 U.S.C. § 2254, arguing that First Circuit caselaw does not require conversion, that conversion would have serious collateral implications for Petitioners which had not been briefed, and that there was no need for the Court to reach this question at this time. Id. at 3. Respondents, on the other hand, argued that it was appropriate for the Court to convert Petitioners’ petition but did not go so far as to argue this is required by First Circuit caselaw. Id. at 5-6.
Because the Court believed that it would be inefficient to leave unanswered the questions of conversion and application of the Rules Governing Section 2254 Cases, the Court ordered the parties to brief: (1) whether the Court is required to formally convert the § 2241 petition to a § 2254 petition and, (2) regardless of the answer to the conversion issue, whether the Court should apply the Rules Governing Section 2254 Cases to this case. Interim Order on Disc. Reqs. at 1-3. Respondents filed their memorandum on July 2, 2020. Resps.’ Mem. of Law in Supp. of Application of the Rules Governing § 2254 Cases to this Action (ECF No. 35) (Resps.’ Mem.). On
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July 10, 2020, Petitioners responded. Pet’rs’ Mem. Regarding the Applicability of the Rules Governing Section 2254 Cases (ECF No. 38) (Pet’rs’ Mem.). II. PARTIES’ POSITIONS
A. Respondents’ Memorandum 1. The Court Should Convert the Petition
Respondents argue that Petitioners “mislabeled their petition as a § 2241 petition, when the relief they seek is governed by 28 U.S.C. § 2254.” Resps.’ Mem. at 2. By contrast, they contend that “[s]ection 2241 ‘establishes the general authority of the federal courts to issue habeas relief,’” id. (quoting Dominguez v. Kernan, 906 F.3d 1127, 1134 (9th Cir. 2018)), and section 2254 “is a limitation on § 2241’s grant of habeas authority.” Id. Respondents state that “[s]ection 2254(a) is phrased as a restriction, providing for federal habeas review for a state prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.’” Id. at 3 (emphasis in original) (quoting 28 U.S.C. § 2254(a)).
Respondents raise a “circuit split as to whether state prisoners can challenge the ‘execution’ of a sentence under § 2241, without § 2254’s restrictions,” and state that the “First Circuit has adopted the majority view” of this question. Id. at 3 (citing Gonzalez-Fuentes v. Molina, 607 F.3d 864, 876 n.9 (1st Cir. 2010)).
Respondents state that “[u]nder Gonzalez-Fuentes, there can be no serious dispute that § 2254 ‘governs’ the claims of Petitioners,” Resps.’ Mem. at 3 (quoting Gonzalez-Fuentes, 607 F.3d at 876 n.9), and posit that “[t]he only question that remains is whether the petition, despite being governed by § 2254, should be
3

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permitted to retain its self-designation as a § 2241 petition.” Id. at 3-4. Respondents point to Second and Eleventh Circuit cases which they say “illuminate[] the logical flaw in Petitioners’ position . . ..” Id. at 4 (citing Thomas v. Crosby, 371 F.3d 782 (11th Cir. 2004); Cook v. N.Y. State Div. of Parole, 321 F.3d 274 (2d Cir. 2003); Medberry v. Crosby, 351 F.3d 1049 (11th Cir. 2003)). This flaw, in Respondents’ view, is that “[b]ecause § 2254 is a limitation on federal courts’ powers under § 2241, every stateprisoner habeas action is a § 2241 petition,” and thus “if Petitioners are correct that they can exempt themselves from the Habeas Rules by labeling their petition a ‘§ 2241 petition,’ so too can every other state prisoner bringing a habeas claim.”1 Id. at 5 (emphasis in original).
2. The Court Should Apply the Habeas Rules Respondents argue that if the Court declines “to formally convert the petition to a § 2241 petition, it should exercise its discretion to apply the Habeas Rules to this case under Rule 1(b)” of the Rules Governing Section 2254 Cases. Id. at 6. Respondents argue that these rules were put in place to avoid that opaque analysis required under Federal Rule of Civil Procedure 81(a)(4)(B), and that Respondents could not find a single case in which a Court declined to exercise its discretion under Habeas Rule 1(b). Id. at 6-7. Respondents also note that to the extent “the Habeas Rules are an awkward fit for Petitioners’ claims due to the lack of a state-court record,

1

Respondents make two additional points. First is that, contrary to Petitioners’ argument, the

language of Gonzalez-Fuentes is best read as supporting the idea that federal prisoners, not state

prisoners, may file motions under section 2241. Id. at 3 n.3. Second, Respondents contend that

“Petitioners’ constitutional concerns about the application of § 2244(b)’s prohibition of successive

habeas petitions as a result of conversion would be properly addressed not here, but in any future

petition filed by one of the Petitioners” and that those concerns are unavailing in any event. Id.at 5

n.5.

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that is only because Petitioners have disregarded their obligation to exhaust statecourt remedies under § 2254(b).” Id. at 7 (citations omitted).
B. Petitioners’ Memorandum 1. The Court Should Not Convert the Petition
Petitioners argue the Court should not convert their petition because doing so “could bar named petitioners—or even all putative class members—from later asserting any constitutional infirmity in their convictions or sentences, despite having no opportunity to raise such challenges in this case.” Pet’rs’ Mem. at 2. In Petitioners’ view, “a key consideration before ordering conversion is the risk that ‘construing [a filing] as a section 2254 petition might cause [a party] to forfeit unintentionally any otherwise meritorious claims for federal habeas relief he might have.’” Id. (alterations in original) (quoting Cook, 321 F.3d at 276). Petitioners contend, based on this, that “Respondents are wrong . . . in claiming that concerns about [Petitioners’] second or successive petition should be delayed until ‘any future petition filed by one of the Petitioners.’” Id. (citing Resps.’ Mem. at 5 n.5).
Petitioners state that though “these concerns are typically only procedural . . . in this case they are also substantive and militate against any conversion at all,” as there is a “presumption of reviewability of the Maine Department of Corrections’ response to the COVID-19 pandemic, as well as canons of interpretation that avoid implicating the Suspension Clause” of the United States Constitution. Id. at 3 (citing U.S. CONST. art. I, § 9, cl. 2). Petitioners assert that conversion would be in conflict with the Suspension Clause’s guarantees, as it could “require Petitioners (and
5

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potentially putative class members) to choose between pursuing their challenges to unconstitutional prison conditions during a deadly pandemic, and other potentially meritorious constitutional or statutory challenges to their conviction or sentence” which, in the context of the COVID-19 pandemic, is contrary to the purposes of the bar on successive petitions. Id. at 3-4.
Petitioners argue that these “concerns under the Suspension Clause invoke the ‘clear statement’ rule” that when “a particular interpretation of a statute invokes the outer limit of Congress’ power, [courts] expect a clear indication that Congress intended that result.” Id. at 4 (quoting INS v. St. Cyr, 533 U.S. 289, 299 (2001), superseded by statute on other grounds as recognized in Nasrallah v. Barr, 140 S. Ct. 1683, 1690 (2020)). But, Petitioners note, in section 2254, “there is no ‘clear statement’ requiring conversion of petitions filed under § 2241 challenging conditions of confinement as unconstitutional,” and the First Circuit “has recognized that § 2241 ‘may be used to attack the manner in which a sentence is executed, as opposed to the sentence itself . . ..’” Id. at 4 (quoting Gonzalez-Fuentes, 607 F.3d at 875 n.9).
Petitioners contend that allowing this petition to proceed under section 2241 is consistent with the Supreme Court’s rules governing original jurisdiction over habeas petitions and “numerous § 2241 petitions filed on behalf of post-conviction State prisoners during the COVID-19 pandemic,” and further state that the Court is not required to convert the petition under First Circuit precedent. Id. at 4-6. Petitioners end by requesting that, if the Court should determine the petition must
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be converted, the Court give advance notice and the opportunity to amend or dismiss the petition. Id. at 6-7.
2. The Court Should Apply the Habeas Rules Petitioners state that, apart from Rule 9 of the Rules Governing Section 2254 Cases (which governs successive petitions), the Court should apply the Habeas Rules. Id. at 7. III. DISCUSSION In summary, the Court will not convert Petitioners’ petition, will apply the Rules Governing Section 2254 Cases with the exception of Rule 92 (which is not factually before the Court), and finds good cause for most, but not all, Petitioners’ discovery requests. A. Conversion Respondents appear to concede by negative implication that First Circuit caselaw does not require conversion. In Gonzalez-Fuentes, a case brought by state prisoners, the First Circuit stated that “[s]ection 2241, which does not contain many of the hurdles that § 2254 places before habeas petitioners, may be used to attack the manner in which a sentence is executed, as opposed to the sentence itself.” 607 F.3d at 875 n.9. The First Circuit went on to state that “even if the substance of the challenge here could theoretically support jurisdiction under § 2241, the majority view is that prisoners in state custody are required to comply with all the

2

Rule 9 of the Rules Governing Section 2254 Cases reads: “Before presenting a second or

successive petition, the petitioner must obtain an order from the appropriate court of appeals

authorizing the district court to consider the petition as required by 28 U.S.C. § 2244(b)(3)and (4).”

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requirements laid out in § 2254 whenever they wish to challenge their custodial status . . ..” Id. This language strongly suggests that a state prisoner may be able to use a section 2241 petition in the First Circuit.
The Respondents’ best argument on this point is that the First Circuit’s language in Gonzalez-Fuentes does not mean quite what it says, because the case the Gonzalez-Fuentes panel cited for the idea that “[s]ection 2241 . . . may be used to attack the manner in which a sentence is executed” involved federal, as opposed to state, prisoners. See Resps.’ Mem. at 3 n.3 (citing Muniz v. Sabol, 517 F.3d 29 (1st Cir. 2008)). But the First Circuit’s language is more expansive than Respondents allow. To adopt the Respondents’ argument would elevate the First Circuit’s cited authority over the language of the First Circuit opinion itself.
Respondents cite cases from the Second and Eleventh Circuits that do require conversion. See Resps.’ Mem. at 4 (citing Thomas, 371 F.3d at 782; Cook, 321 F.3d at 278; Medberry, 351 F.3d at 1059-60). However, there is a circuit split on this issue, see Allen v. White, 185 F. App’x 487, 490 (6th Cir. 2006) (unpublished) (“This circuit has allowed state prisoners to proceed under § 2241, but subject to the restrictions imposed by § 2254”); Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005) (state prisoner’s “challenge to the execution of [his] sentence should be brought under 28 U.S.C. § 2241”). In the absence of controlling First Circuit precedent but holding faith with First Circuit guidance, the Court sees no reason to take a view of conversion that is less friendly to litigants’ rights.
8

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At the same time, the Court will not go further than the First Circuit already has suggested. The collateral consequences of conversion may be significant, and in the absence of mandatory authority requiring it to do so, the Court will not inflict those consequences on the inmate litigants in this case. While Respondents argue that the proper time for Petitioners to raise constitutional concerns about being barred from filing a successive petition is when Petitioners file future petitions, Resps.’ Mem. at 5 n.5, this position is untenable for Petitioners—forcing them to take an all-or-nothing gamble on their ability to file a future petition regarding a wholly different subject matter.
Furthermore, the Court is not convinced by Respondents’ argument that if Petitioners are able to escape the successive petition bar by filing under section 2241, any future state prisoner will be able to do so as well. Id. at 5. If — as Respondents worry — the Court’s treatment of this case has a deleterious impact on future cases, courts can address the impact in the context of a future case.
The Court declines to convert Petitioners’ petition. B. The Rules Governing Section 2254 Cases In light of the continued agreement between the parties on the application of the Rules Governing Section 2254 Cases, Resps.’ Mem. at 6-7; Pet’rs’ Mem. at 7, the Court exercises its discretion under Rule 1(b) to apply the Rules Governing Section 2254 Cases to this case—with the exception of Rule 9. C. Good Cause Determinations
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As the Court has written, “the Court views this as a case where fairly broadranging discovery is necessary to resolve the many factual disputes at issue.” Interim Order on Disc. Reqs. at 4. With the exception of the specific document requests and interrogatories discussed in more detail below, the Court finds good cause for all Petitioners’ document requests, interrogatories, and deposition requests pursuant to Rule 6 of the Rules Governing Section 2254 Cases. As Petitioners request, see Jt. Status Update at 5, the Court expects the parties to engage in the usual meet-andconfer process to resolve issues related to privilege, burdensomeness, and the like— raising any unresolved disputes with the assigned Magistrate Judge.
1. Document Request 1: Detailed Floor Plans Respondents argue that “[p]hysical design information such as floor plans are the most highly protected information that corrections departments maintain” and “object to producing this information,” countering that “surveillance footage . . . would likely satisfy any need to see the layout of physical plan[]s.” Id. at 8. Petitioners state that they “are willing to explore the solution proposed by Respondents, so long as it is possible to simultaneously review the surveillance footage alongside information about the dimensions of pods, common areas, and cells . . ..” Id. at 9. Given this position by Petitioners, there does not appear to be a dispute regarding this request for the Court to decide at this time.
2. Document Request 2: Zoom Inspection Respondents argue that “[t]his is not a document request but an inspection request,” and further state that it is impossible “because there is no wireless internet
10

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in the facilities . . ..” Id. at 9. Respondents instead suggest that they “provide a reasonable amount of surveillance footage” from a single weekday selected by the Court between June 10 and 17. Id. Petitioners do not object to Respondents’ proposed solution but state that the footage “must cover dorms and common areas, as well as routes of transit throughout the facility, meal halls, and medical areas.” Id. Petitioners request, in light of Respondents’ objection and Petitioners’ conditional agreement with respect to Document Request 1, that the Court “find good cause for Petitioners to obtain dimensions of dorms, common areas, and cells, which are commonly provided and do not present the same security risks as blueprints or floor plans.” Id.
The Court finds good cause for Respondents’ proposed provision of surveillance footage to Petitioners. Id. at 9. Absent a discrete proposed date, the Court selects June 12 as the date from which Respondents must provide surveillance footage. The Court does not now address which areas the surveillance footage must cover, as the parties should first meet and confer as to the scope of the footage that will be turned over. Also, the Court finds that there is good cause for Petitioners to obtain the dimensions they seek. These dimensions go directly to the social distancing questions at the heart of this case, and Respondents did not object to providing dimensions to Petitioners.
3. Interrogatory 11: Staffing Plans Respondents “object that detailed staffing information . . . creates an enormous safety risk” but states that MDOC “would not object to providing higher-level, general
11

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information on staffing as planned at each facility . . ..” Id. at 15. Petitioners state that “[g]iven the Respondents’ agreement to provide ‘higher-level’ information that is responsive to this request, Petitioners request that the Court find there is good cause for the request, and allow the parties to perform a traditional meet-and-confer.” Id. Given the security concerns raised by Respondents, which the Court regards as legitimate, the Court finds good cause for the sort of high-level information referenced by Respondents but not for the more granular information requested by Petitioners.
4. Interrogatories 18 & 19 Petitioners state that they “have agreed to withdraw Interrogatories 18 and 19, based on a discussion of Respondents’ objections.” Id. at 16. With this withdrawal, there is no dispute requiring resolution over Interrogatories 18 and 19.
5. Depositions Petitioners state that they “have noticed a 30(b)(6) deposition for a Maine DOC representative who can testify regarding DOC practices and policies as they relate to COVID[-19] treatment and prevention,” as well as depositions of “John Newby, D.P.M., the Regional Vice President of Wellpath, the company that has contracted with Maine DOC to provide all medical care to inmates; Ryan Thornell, Ph.D., the Deputy Commissioner of Maine DOC . . . and Respondents’ expert who has not yet been designated.” Id. at 16. Petitioners argue that “depositions are a critical part of discovery, particularly when preparing for an evidentiary hearing.” Id. at 17. Petitioners point out that Respondents chose to file declarations from Dr. Newby and Mr. Thornell in opposing Petitioners’ motion for a temporary restraining order and
12

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state that—while they think it unnecessary—they are willing to subpoena Dr. Newby. Id. at 17-18.
Respondents argue that “depositions would be overly burdensome and would not produce useful evidence,” and state that “[i]f the Court is inclined to allow depositions, Respondents would produce Ryan Thornell for a deposition.” Id. at 18. However, Respondents believe that “Petitioners’ 30(b)(6) deposition notice is extremely burdensome and would actually comprise more than a dozen individual depositions” and argue that a deposition of Dr. Newby is inappropriate because he is a third party. Id.
The Court finds good cause for all Petitioners’ deposition requests. Respondents’ deposition-related concern that “MDOC officials are engaged in responding to the ever-changing COVID-19 pandemic,” id. at 7, is similar to an invocation of the apex doctrine. However, as Petitioners note, Respondents chose to make Dr. Newby and Mr. Thornell declarants. In so doing, they turned these individuals into fact witnesses. Depositions may not be typical in the habeas context, but they are essential for developing and probing the issues in this case. The Court views as reasonable the number of depositions requested by Petitioners and is confident that Respondents’ concerns about the constraints of their deponents’ schedules in the midst of the pandemic can be addressed through a meet-and-confer process as to the scope and time limitations of the noticed depositions.3

3

To the extent Respondents argue that Petitioners’ Rule 30(b)(6) notice would require twelve individual

depositions, the Court views this as unlikely based on its reading of the topics noticed. But if the Rule 30(b)(6)

deposition turns out to be onerous, Respondents are free to bring specific requests to seek the protection of the

Magistrate Judge.

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IV. CONCLUSION The Court declines to convert Petitioners’ Petition for Writ of Habeas Corpus
(ECF No. 1) from one brought under 28 U.S.C. § 2241 to one brought under 28 U.S.C. § 2245. The Court applies the Rules Governing Section 2254 Cases, with the exception of Rule 9. Finally, the Court finds good cause for Petitioners’ discovery requests as expressed in this order.
With regard to remaining discovery disputes over issues such as privilege and burdensomeness, the Court ORDERS the parties to meet and confer. If the parties are unable to resolve some or all these issues, the parties should submit their remaining disputes to the assigned Magistrate Judge as they would in the ordinary course.
SO ORDERED. /s/ John A. Woodcock, Jr. JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
Dated this 15th day of July, 2020
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AARON M. FREY
ATTORNEY GENERAL
TEL: (207) 626-8800 TT Y US ERS CALL MAINE RELAY 711

STATE OF MAINE OFFICE OF THE ATTORNEY
GENERAL 6 STATE HOUSE STATION AUGUSTA, MAINE 04333-0006

REGIONAL OFFICES 84 HARLOW ST. 2ND FLOOR BANGOR, MAINE 04401 TEL: (207) 941-3070 FAX: (207) 941-3075
125 PRESUMPSCOT ST., STE. 26 PORTLAND, MAINE 04103 TEL: (207) 822-0260 FAX: (207) 822-0259
14 ACCESS HIGHWAY, S TE. 1 CARIBOU, MAINE 04736 TEL: (207) 496-3792 FAX: (207) 496-3291

July 15, 2020
Via ECF Filing
The Honorable John A. Woodcock, Jr. United States District Court
for the District of Maine Edward T. Gignoux U.S. Courthouse 156 Federal Street Portland, ME 04101
Re: Denbow v. Maine Department of Corrections Docket No. 1:20-cv-00175-JAW
Dear Judge Woodcock:
I represent Respondents Maine Department of Corrections and Randall Liberty in the above action. I write with regard to Respondents’ pending motion to dismiss this action (ECF No. 31).
In order to avoid delay in resolution of the motion, Respondents do not intend to seek leave to file a reply. See Order on Joint Proposed Scheduling Order at 2 (ECF No. 29). Respondents do wish, however, to apprise the Court of new factual and legal developments that have occurred since the motion was filed on June 22, 2020:
First, on July 14, 2020, the Superior Court in Denbow v. State of Maine, Docket No. CR-20-226, dismissed Petitioner Denbow’s petition for post-conviction review for failure to exhaust administrative remedies. A copy of that decision is attached as Exhibit A.
Second, on June 25, 2020, the same court issued a decision denying Petitioner Denbow’s motion for bail. A copy of that decision is attached as Exhibit B.
Third, since Respondents filed their motion, a number of federal district courts have dismissed or recommended dismissal of COVID-19 related federal habeas petitions for failure to exhaust. See, e.g., Sisco v. Stanislaus County Sheriff’s Dep’t, No. 1-20-CV-00947, 2020 WL 3893396, at *2 (E.D. Cal. July 10, 2020) (recommending

Case 1:20-cv-00175-JAW Document 42 Filed 07/15/20 Page 2 of 2 PageID #: 1030
Page 2 of 2 Hon. John A. Woodcock, Jr.
dismissal of COVID-19 related petition under §2254(b) where petitioner did not file a state-court appeal or present his claims to the California Supreme Court); Harrison v. Wolcott, No. 20-CV-6270, 2020 WL 3871345, at *1 (W.D.N.Y. July 9, 2020) (dismissing COVID-19 related petition under §2254(b) because petitioner did not pursue state-court remedies and state courts remained open to hear emergency petitions); Valenzuela v. Keyser, No. 19-CV-3696, 2020 WL 3839697, at *4 (S.D.N.Y. July 8, 2020) (dismissing COVID-19 related petition under §2254(b) in part because state courts had considered and resolved other COVID-19 related petitions); Fahr v. Arizona, No. CV-20-08114, 2020 WL 3791535, at *2 (D. Ariz. July 7, 2020) (dismissing COVID-19 related petition under §2254(b) because petitioner did not pursue state-court remedies and did not show that exhaustion should be waived); Sosby v. Brown, No. 2:20-CV-80, 2020 WL 3786177, at *3 (W.D. Mich. July 7, 2020) (holding petitioner failed to exhaust under §2254 where state-court remedies were available for his COVID-19 related claims and petitioner failed to demonstrate those remedies were ineffective); Most v. Watson, No. 20-CV-493-NJR, 2020 WL 3544985, at *2 (S.D. Ill. June 30, 2020) (dismissing COVID-19 related petition under §2254(b) because petitioner had available state-court remedies and the record did not allow a conclusion that they would be ineffective); Day v. Gonzalez, No. CV 4:20-1301, 2020 WL 3504467, at *2 (S.D. Tex. June 29, 2020) (dismissing COVID-19 related petition under §2241’s non-statutory exhaustion requirement where pre-trial detainee petitioner had pending state-court motion for bond reduction and had not alleged facts supporting a finding that state courts were unavailable); Stewart v. Dep’t of Corr., No. 20-CV-2136, 2020 WL 3415768, at *3 (E.D.N.Y. June 22, 2020) (dismissing COVID-19 related petition under §2254(b) in part because, despite a pandemicrelated delay of several weeks, the state action was now moving forward).
We appreciate the Court’s consideration of the above matters.
Sincerely,
/s/ Jonathan R. Bolton
Jonathan R. Bolton Assistant Attorney General
cc: All counsel of record (via ECF)

 Case 1:20-cv-00175-JAW Document 44 Filed 07/17/20 Page 1 of 3 PageID #: 1043

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

JOSEPH A. DENBOW et al., Petitioner v.
MAINE DEPARTMENT OF CORRECTIONS et al.,
Respondents

)

)

)

)

)

Case No. 1:20-cv-00175-JAW

)

)

)

)

)

CORRECTION TO AFFIDAVIT OF DR. RYAN THORNELL, Ph.D., IN OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER
I, Ryan Thornell, Ph.D., declare as follows: 1. I am over the age of 18 years and not myself a party to this action. I understand and believe in the obligations of an oath. 2. I have personal knowledge of the facts stated in this affidavit, and if called upon to testify, I would testify to those facts. In preparing this affidavit, I have also reviewed records and reports regularly kept by the Maine Department of Corrections (MDOC) that are available to me and that I rely on in my official duties. 3. I am Deputy Commissioner of Corrections for Respondent MDOC. I submitted an affidavit in opposition to the motion for temporary restraining order on May 27, 2020 (ECF No. 20.) 4. In my affidavit, I stated: “In every MDOC facility, including in each dorm at Mountain View, inmates have access to hand sanitizer with a 70% alcohol content.” (ECF No. 20 ¶ 49.)

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5. I believed that paragraph to be true when I signed my affidavit on May 27, 2020, because MDOC had approved the use of alcohol-based hand sanitizer in all MDOC facilities in March 2020, and I believed it had been communicated to the Chief Administrative Officers (wardens and superintendents) that it should be made available to inmates.
6. In the process of responding to interrogatories in this case on July 8, 2020, I was surprised to learn that alcohol-based hand sanitizer was not available to inmates at the Maine State Prison or Bolduc Correctional Facility. I learned that officials at Maine State Prison and Bolduc Correctional Facility had interpreted MDOC’s March 2020 decision as allowing, but not requiring, them to provide alcohol-based hand sanitizer to inmates, and that they had exercised what they thought was their discretion to not provide it. Thus, while I believed it to be true, my statement in the May 27, 2020 Affidavit that “In every MDOC facility . . . inmates have access to hand sanitizer with a 70% alcohol content” was not accurate.
7. Upon learning that Bolduc and Maine State Prison had not been providing alcoholbased hand sanitizer, I immediately directed the Chief Administrative Officers of those facilities to make alcohol-based hand sanitizer available to inmates, and I learned that alcohol-based hand sanitizer was made accessible to inmates in those facilities as of July 8, 2020.
8. Unfortunately, inmates at the Maine State Prison have misused the alcohol-based hand sanitizer. Since July 8, at least four inmates at that prison have been found to have ingested it.
9. Given these incidents, on July 15, 2020, the Warden of the Maine State Prison issued a memorandum to all inmates, limiting the availability of alcohol-based hand sanitizer at the Maine State Prison to medication lines, the officer’s podium in the Activities Building, and at the officer’s station in the medical area.
2

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10. Thus, at this time, alcohol-based hand sanitizer is accessible to inmates at all MDOC facilities at specific locations designated by the facility’s Chief Administrative Officer based on factors specific to each facility.
I declare under penalty of perjury that the foregoing is true and correct.

July 17, 2020

/s/ Ryan Thornell Ryan Thornell, Ph. D. Deputy Commissioner of Corrections Maine Department of Corrections

3

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JOSEPH A. DENBOW and SEAN R. RAGSDALE, on their own and on behalf of a class of similarly situated persons,

Petitioners, v.

Case No. 20-cv-00175-JAW

MAINE DEPARTMENT OF CORRECTIONS and RANDALL A. LIBERTY, Commissioner of Maine Department of Corrections in his official capacity,

PETITIONERS’ SUR-REPLY IN OPPOSITION TO MOTION TO DISMISS

Respondents

Pursuant to the Court’s Minute Order, ECF No. 43 (July 15, 2020), Petitioners

respectfully submit this sur-reply in opposition to the Respondents’ motion to dismiss. In a letter

regarding supplemental authority, which the Court construed as a reply, the Respondents updated

the Court regarding proceedings in Mr. Denbow’s state court case, and offered several additional

cases regarding exhaustion. See Reply, ECF No. 42 (July 15, 2020). For the reasons discussed

below, the developments in the state court action do not support the Respondents’ arguments

regarding dismissal, and all of the supplemental cases cited by Respondents are distinguishable

from this case.

As an initial matter, the denial of post-conviction bail and ultimate dismissal of Mr.

Denbow’s state petition for post-conviction review do not support the Respondents’ motion to

dismiss. See Order of Dismissal, ECF No. 42-1 (issued by the state court on July 14, 2020, filed

in this Court on July 15, 2020); Order Denying Bail, ECF No. 42-2 (issued by the state court on

June 25, 2020, filed in this Court on July 15, 2020). The primary question presented in the

Respondents’ motion to dismiss is a narrow one: whether the general requirement to exhaust

state remedies should be excused in this case because, at the time of filing the federal petition,

-1-

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state court remedies were either unavailable or ineffective to provide the requested relief.1 See Petitioners’ Opp. at 6-7, ECF No. 40 (July 13, 2020). This inquiry is directed to the state court remedies available at the time the petition was filed, and is not altered by post-filing developments. See Petitioners’ Opp. at 6-7, ECF No. 40 (July 13, 2020). Accordingly, the ultimate dismissal of Mr. Denbow’s state court petition does not alter the inquiry regarding the futility of state court remedies as of May 15, 2020, the date of filing the federal petition.
Additionally, the 21-day period to appeal the state court dismissal has not yet elapsed. To the extent Mr. Denbow does not appeal, the state court dismissal would be fatal to the Respondents’ arguments regarding Younger abstention, which prevents federal courts from enjoining ongoing state court proceedings. See Petitioners’ Opp. at 19 (citing Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 100 (2d Cir. 2004)). Younger abstention is inapplicable for the reasons set forth in Petitioners’ opposition, see id., and also because, absent appeal of the state court’s decision, there are no ongoing state proceedings to enjoin. Finally, to the extent Mr. Denbow does not appeal, there would be no need for the Court to address the Petitioners’ alternative argument to defer a ruling pending the state court’s adjudication of the amendment. See id. at 18-19.
Respondents also cite a number of recent decisions regarding exhaustion, many of which do not meaningfully address the futility of state court remedies at issue here. See Reply at 1-2 (citing Sisco v. Stanislaus County Sheriff’s Dep’t, No. 1-20-CV-00947, 2020 WL 3893396, at *2 (E.D. Cal. July 10, 2020) (dismissing without prejudice a single petition for habeas corpus
1 Alternatively, consistent with the styling of Petitioners’ petition as a 28 U.S.C. § 2241 petition, the question is whether there are unusual circumstances that support waiving the prudential exhaustion requirement. See Petitioners’ Opp. at 5-6.
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without considering futility); Harrison v. Wolcott, No. 20-CV-6270, 2020 WL 3871345, at *1 (W.D.N.Y. July 9, 2020) (dismissing without prejudice a single petition for habeas corpus when there was no claim “that a state process is unavailable or that circumstances render that process ineffective”); Fahr v. Arizona, No. CV-20-08114, 2020 WL 3791535, at *2 (D. Ariz. July 7, 2020) (noting that the petitioner “presented nothing to suggest that either of these conditions [regarding unavailable or ineffective state remedies] have been met or that the exhaustion requirement should be waived”); Day v. Gonzalez, No. CV 4:20-1301, 2020 WL 3504467, at *2 (S.D. Tex. June 29, 2020) (dismissing without prejudice a single habeas petition under § 2241 without addressing futility).
Additionally, each of the remaining cited cases is distinguishable because none addressed the specific circumstances here: namely, state courts that were unavailable or ineffective to handle the 900+ petitions of all putative class members, and did not offer a class remedy to adjudicate such claims. See Valenzuela v. Keyser, No. 19-CV-3696, 2020 WL 3839697, at *4 (S.D.N.Y. July 8, 2020) (noting that many habeas petitions have been granted by justices of the New York State Supreme Court” during the pandemic); Sosby v. Brown, No. 2:20-CV-80, 2020 WL 3786177, at *3 (W.D. Mich. July 7, 2020) (dismissing without prejudice a single habeas petition when Petitioner “failed to show the absence of State corrective process, or that the present circumstances have rendered state court remedies ineffective”); Most v. Watson, No. 20CV-493-NJR, 2020 WL 3544985, at *2 (S.D. Ill. June 30, 2020) (dismissing without prejudice a single habeas petition when it “appears that Most still has procedures available to him under Illinois law to raise the question of his right to release due to these health concerns”); Stewart v. Dep’t of Corr., No. 20-CV-2136, 2020 WL 3415768, at *3 (E.D.N.Y. June 22, 2020) (denying without prejudice an emergency motion to amend an existing habeas petition for failure to
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exhaust). Unlike these cases, Petitioners have shown that, at the time of filing this petition, state court processes were unavailable or ineffective to provide the necessary widespread relief to protect Petitioners and members of the putative class from the COVID-19 pandemic. See generally Petitioners’ Opp. at 5-18.
CONCLUSION For these reasons, Petitioners respectfully request that the Court deny Respondents’ Motion to Dismiss.

Dated: July 20, 2020

Respectfully Submitted,
/s/ Emma E. Bond Emma E. Bond, Esq. Zachary L. Heiden, Esq. American Civil Liberties Union of Maine Foundation P.O. Box 7860 Portland, Maine 04112 (207) 619-8687 ebond@aclumaine.org (207) 619-6224 heiden@aclumaine.org
Moe Keshavarzi* Robert Sturgeon* Alex Kuljis* Sheppard Mullin Richter & Hampton LLP 333 South Hope Street, 43rd Floor Los Angeles, CA 90071-1422 213.617.5544 MKeshavarzi@sheppardmullin.com 213-617-5435 RSturgeon@sheppardmullin.com 213-617-4239 AKuljis@sheppardmullin.com J
Jodi Nofsinger Miriam Johnson Taylor Asen Berman and Simmons 129 Lisbon Street Lewiston, Maine 04240 jnofsinger@bermansimmons.com
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Case 1:20-cv-00175-JAW Document 45 Filed 07/20/20 Page 5 of 6 PageID #: 1050 (207) 784-7699 mjohnson@bermansimmons.com (207) 784-3576 tasen@bermansimmons.com A Attorneys for Petitioners and Proposed Class * admitted pro hac vice
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CERTIFICATE OF SERVICE

The undersigned certifies that she has electronically filed this date the foregoing Petitioners’ Sur-Reply in Opposition to the Motion to Dismiss with the Clerk of the Court using the CM/ECF system. This filing is available for viewing and downloading from the ECF system.

Dated: July 20, 2020

/s/ Emma E. Bond

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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

JOSEPH A. DENBOW et al., Petitioners,
v. MAINE DEPARTMENT OF CORRECTIONS et al.,
Respondents.

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No. 1:20-cv-00175-JAW

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ORDER ON MOTION TO DISMISS Respondents move to dismiss Petitioners’ petition for habeas corpus seeking

relief for state inmates in the face of the COVID-19 pandemic. Respondents contend

Petitioners did not exhaust available state remedies. Because the Court concludes

that the post-conviction review procedure was available in the state court, that

Petitioners did not exhaust this avenue to relief, and that the possible, though not

certain, absence of a class remedy in state court does not excuse the failure to exhaust,

the Court grants Respondents’ motion and dismisses Petitioners’ petition.

I. BACKGROUND

A. Procedural Background

On May 15, 2020, Joseph A. Denbow and Sean R. Ragsdale (Petitioners) filed

a petition for habeas corpus and complaint against the Maine Department of

Corrections (MDOC) and Randall A. Liberty, the commissioner of the MDOC

(Respondents), on behalf of themselves and a putative class of those similarly

situated. Pet. for Writ of Habeas Corpus and Compl. for Injunctive and Declaratory

Relief (ECF No. 1) (Pet.). On May 18, 2020, Petitioners filed a motion for a temporary

Case 1:20-cv-00175-JAW Document 55 Filed 08/14/20 Page 2 of 31 PageID #: 1084
restraining order (TRO) or preliminary injunction. Class Mot. for TRO or Preliminary Inj. (ECF No. 5). On May 27, 2020, Respondents filed a response to the motion for a TRO. Opp’n to Mot. for TRO (ECF No. 19). Petitioners filed a reply on May 29, 2020. Reply in Supp. of TRO (ECF No. 22) (Pet’rs’ Reply). The Court held oral argument by Zoom hearing on June 2, 2020. Min. Entry (ECF No. 24). The Court denied the motion for TRO on June 8, 2020. Order on Mot. for TRO (ECF No. 25).
On June 22, 2020, Respondents filed a motion to dismiss alleging Petitioners’ failure to exhaust state remedies. Resp’ts’ Mot. to Dismiss (ECF No. 31) (Resp’ts’ Mot.). On July 13, 2020, Petitioners responded. Pet’rs’ Mem. of Law in Opp’n to Mot. to Dismiss (ECF No. 40) (Pet’rs’ Opp’n). On July 15, 2020, Respondents informed the Court that they did not wish to seek leave to file a reply, but they nonetheless filed a letter to the Court citing eight new cases that had been decided since their moving brief was filed and new substantive information about one of the Petitioners’ state postconviction case. Letter to the Court (ECF No. 42) (Resp’ts’ Reply). The Court interpreted this letter as a reply due to the substantial volume of new authority and, in fairness to Petitioners, granted Petitioners an opportunity to file a sur-reply. Order (ECF No. 43). Petitioners filed a sur-reply on July 20, 2020. Pet’rs’ Sur-Reply in Opp’n to Mot. to Dismiss (ECF No. 45) (Pet’rs’ Sur-Reply). On August 6, 2020, the Court ordered Petitioners to confirm whether Mr. Denbow had appealed the denial of his state court post-conviction review (PCR) petition. Order re Sur-Reply to Mot. (ECF No. 51). That same day, Petitioners responded that he had not filed a notice of appeal. Notice Regarding the Status of Mr. Denbow’s State Ct. PCR (ECF No. 53).
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B. Factual Background1 1. Joseph Denbow’s State Court Proceedings
On April 13, 2020, Mr. Denbow, through the same counsel representing him in this case, the American Civil Liberties Union of Maine (ACLU), filed an emergency petition against the state of Maine (the State) for PCR in the Oxford County, Maine Superior Court. Pet., Attach. 2, App. – State Ct. Action at App.001, 007 (App. – State Ct. Action). Mr. Denbow filed a supporting memorandum of law, as well as an emergency motion for release on bail and leave to file an unsworn petition. App. – State Ct. Action at App.008, 017, 019, 023. In his state court petition, Mr. Denbow

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Respondents assert that they filed their motion to dismiss under Rule 5 of the Rules Governing

Section 2254 Cases. Resp’ts’ Mot. at 1. The Court is skeptical. Rule 5 does not contemplate a motion

to dismiss; rather, it contemplates an answer to the petition in which Respondents must “address the

allegations in the petition” and, in addition, “state whether any claim in the petition is barred by a

failure to exhaust state remedies . . ..” RULE 5(b), RULES GOVERNING SECTION 2254 CASES IN THE U.S.

DISTRICT COURTS. If Respondents intended to file under Rule 5, then their filing is deficient because

it does not fulfill the requirements of that rule. Rather, the Court concludes that Respondents filed a

motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) due to lack

of exhaustion, and the Court reviewed their motion as such.

“A motion to dismiss a habeas petition is reviewed under the same standard as a motion to

dismiss a civil complaint under Fed. R. Civ. P. 12(b)(6).” Pittman v. Cook, No. 3:20-cv-626 (VAB), 2020

WL 2840256, at *3 (D. Conn. June 1, 2020) (citing Purdy v. Bennett, 214 F. Supp. 2d 348, 353 (S.D.N.Y.

2002)); see also Ortíz-Rivera v. Caro, Civil No. 15-2216 (ADC), 2018 WL 4739720, at *2 (D.P.R. Sept.

28, 2018) (in reviewing motion to dismiss petition brought under 28 U.S.C. § 2254, stating that “the

Court accepts as true all well-pleaded facts and draws all reasonable inferences in the petitioner’s

favor”); Gordon v. Ashcroft, 283 F. Supp. 2d 435, 437 (D. Mass. 2003) (“Under both Rules 12(b)(6) and

12(b)(1) [of the Federal Rules of Civil Procedure], the court must take as true the well-pleaded facts as

they appear in the petition and habeas exhibits, extending the petitioner every reasonable inference

in his favor”). Considering a motion to dismiss, a court “accept[s] all well-pleaded facts in the

complaint as true . . ..” Gilk v. Cunniffe, 655 F.3d 78, 79 (1st Cir. 2011) (quoting Sanchez v. Pereira-

Castillo, 590 F.3d 31, 36 (1st Cir. 2009)). A court also “construe[s] all reasonable inferences in favor

of the plaintiff . . ..” Sanchez, 590 F.3d at 41 (quoting Trans-Spec Truck Serv., Inc. v. Caterpillar Inc.,

524 F.3d 315, 320 (1st Cir. 2008); Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33

(1st Cir. 2001)). In addition to the well-pleaded allegations in the petition, the Court may consider

“documents incorporated by reference in [the petition], matters of public record, and other matters

susceptible to judicial notice.” Squeri v. Mount Ida Coll., 954 F.3d 56, 61 (1st Cir. 2020) (quoting Lydon

v. Local 103, Int’l Bhd. of Elec. Workers, 770 F.3d 48, 53 (1st Cir. 2014)).

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makes arguments similar to the arguments he is making in his petition in this Court.2 Compare Pet. with App. – State Ct. Action at App.001-023.
On April 15, 2020, the State, by and through Assistant District Attorney Richard Beauchesne, responded to Mr. Denbow’s emergency motion for release on bail. App. – State Ct. Action at App.025-027. Mr. Denbow replied on April 16, 2020. Id. at App.028-030. On April 23, 2020, Mr. Denbow filed an emergency motion for a hearing on post-conviction bail. Id. at App.033-035. Also on April 23, 2020, Justice William Anderson of the Maine Superior Court ordered the State to file a response to Mr. Denbow’s petition. Resp’ts’ Mot., Attach. 6, Order Assigning Pet. for PCR. Chief Justice Robert Mullen of the Maine Superior Court assigned the petition to Justice Roland Cole, also of the Maine Superior Court, on April 24, 2020. Resp’ts’ Mot., Attach. 10, Special Assignment Order. On April 27, 2020, the State, by and through the same counsel representing Respondents in this case, the Maine Attorney General’s Office and, more specifically, Assistant Attorney General Jillian O’Brien, responded to Mr. Denbow’s emergency motion for a hearing on post-conviction bail. App. – State Ct. Action at App.038-041. Mr. Denbow replied on April 29, 2020. Id. at App.042-046.
Justice Anderson and Chief Justice Mullen’s orders were not docketed until May 20, 2020 due to a clerical error. Resp’ts’ Mot., Attach. 3, Docket Record. On May 19, 2020, Chief Justice Mullen reassigned Mr. Denbow’s petition and accompanying

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Respondents state that Mr. Denbow “makes the same claims he is making in this action, but

under both the U.S. and Maine Constitutions.” Resp’ts’ Mot. at 4. More precisely, unlike the State

petition, Mr. Denbow is making additional claims under the Americans with Disabilities Act or

Rehabilitation Act in the petition before this Court.

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motion for bail to Justice Thomas McKeon of the Maine Superior Court. Resp’ts’ Mot., Attach. 12, Am. Special Assignment Order. On June 5, 2020, the State filed a response to Mr. Denbow’s petition and simultaneously moved to dismiss it for failure to exhaust administrative remedies within the MDOC. Resp’ts Mot., Attach. 1, State of Maine’s Resp. and Req. for Dismissal of Pet. for PCR. Mr. Denbow opposed the motion to dismiss on June 15, 2020.3 Resp’ts’ Mot., Attach. 13, Pet’r’s Renewed Mot. for Hearing on Bail and Opp’n to State’s Mot. to Dismiss. On June 24, 2020, Mr. Denbow moved for leave to amend his petition to add class claims. Pet’rs’ Opp’n, Attach. 1, Pet’r’s Mot. for Leave to Amend the Pet. and Mot. for Hr’g. On June 25, 2020, Justice McKeon denied Mr. Denbow’s motion for bail. Resp’ts’ Reply, Attach. 2, Order. On July 14, 2020, Justice McKeon dismissed Mr. Denbow’s state court PCR petition for failure to exhaust administrative remedies. Resp’ts’ Reply, Attach. 1, Order.
2. Status of the Maine State Courts During the COVID-19 Pandemic
Beginning in March 2020, the Maine Supreme Judicial Court issued emergency pandemic management orders to respond to COVID-19. Resp’ts’ Mot., Attach. 14, Revised Emergency Order and Notice from the Maine Supreme Judicial Ct. (PMO-SJC-1). These orders limited the case types that would be routinely scheduled and heard, with later orders incrementally increasing the case types that

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Respondents next discuss a telephonic conference of counsel before Justice McKeon on June

17, 2020, as well as the results of their own investigation into whether other state inmates “have

attempted to avail themselves of the state-court PCR process to address COVID-19-related conditions

of confinement.” Resp’ts’ Mot. at 5. There is, however, no record of the telephonic conference in

Mr. Denbow’s petition.

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would be scheduled. Id.; Resp’ts’ Mot., Attach. 15, COVID-19 Phased Management Plan at 1 (COVID-19 Phased Management Plan). From the first of these orders, the Supreme Judicial Court allowed the hearing of motions for review of bail for defendants held in custody and criminal matters related to a defendant’s incarceration. PMO-SJC-1 at 2. This order also provided that a type of case not routinely being heard could still be scheduled and heard upon a showing of urgent and compelling reasons. Id. at 3.
On May 27, 2020, the Maine Judicial Branch issued a five-phase approach for the anticipated resumption of all functions of the Maine state courts by September 7, 2020. COVID-19 Phased Management Plan at 3-13. This plan made clear that state courts would continue to schedule and hear arraignments, first appearances, and motions for review of bail for people in state custody. Id. at 4. Additionally, under the plan, state courts could schedule and hear all other case types and proceedings by video or audio conference. Id. at 5. A party could still request that a matter be heard or scheduled by the Superior Court. Id. at 6. Effective June 1, 2020, Maine courthouses were open from 8:00 a.m. to 4:00 p.m., Monday through Friday, with visitor restrictions for entrants. Id. at 3-4, 14-15.
In three cases related to ballot initiatives and unrelated to conditions of confinement in state prisons and jails, the Maine state courts moved quickly. See Reed v. Sec’y of State, 2020 ME 57, ¶¶ 8-11 & n.6; Resp’ts’ Mot., Attach. 17, Order, Avangrid Networks Inc. v. Sec’y of State, No. CV-20-206 (Me. Super. Ct. May 26,
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2020); Order Establishing Course of Appeal, Payne v. Sec’y of State, No. Ken-20-169 (Me. June 17, 2020).4 II. THE PARTIES’ POSITIONS
A. Respondents’ Motion to Dismiss Respondents assert that it is “settled law in the First Circuit that § 2254’s rigorous statutory exhaustion requirement—and not the flexible judge-made exhaustion requirement of § 2241 preferred by Petitioners—applies in this case.” Resp’ts’ Mot. at 9 (citing González-Fuentes v. Molina, 607 F.3d 864, 875 n.9 (1st Cir. 2010)). Respondents state that Mr. Denbow “has a pending petition for postconviction review in the [Maine] Superior Court on the same claims he brings before this Court and thus very much ‘has the right to raise’ the ‘question presented’ in ‘the courts of the state’ and is thus barred by § 2254(c).” Id. at 10 (quoting 28 U.S.C. § 2254(c)). Respondents also point out that Mr. Ragsdale “has not even attempted to invoke state judicial processes to challenge his confinement” and state that “[i]t is rather incongruous to call an otherwise available process unnecessarily timeconsuming or futile when one has made no effort to initiate it.” Id. (quoting Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *6 (N.D. Ill. Apr. 9, 2020)). Respondents state that “the only way for Petitioners to overcome the exhaustion requirement is to demonstrate that one of § 2254’s two exceptions to exhaustion applies to their claims,”

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Respondents discuss prison mail and access to legal materials at MDOC facilities. Resp’ts’

Mot. at 7-8. Although the Court does not have any reason to dispute the Respondents’ statements, it

could find no corroboration in the record for them and has not considered them in the context of this

motion to dismiss.

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which Respondents describe as a “heavy burden” Petitioners are unable to meet. Id. (quoting Barresi v. Maloney, 296 F.3d 48, 51 (1st Cir. 2002)).
1. State Court Remedies Are Available and Not Futile a. Joseph Denbow’s State Court Proceeding Is Not Futile.
Respondents assert that Petitioners’ previous contention that Mr. Denbow’s PCR petition was futile because it had not been acted on for five weeks was incorrect, as Mr. Denbow’s petition had been acted on but the parties did not discover this for a while due to a clerical error. Id. Respondents state that “the case is now moving forward expeditiously,” such a clerical error is unlikely to be repeated, and this delay is not sufficient to demonstrate that “the state court processes are ‘so clearly deficient’ as to be ‘futile.’” Id. at 10-11 (quoting Gagne v. Fair, 835 F.2d 6, 9 (1st Cir. 1987)). Respondents argue that “[b]ecause Petitioners have not given the state court a chance to rule on Mr. Denbow’s claims, this Court should dismiss the petition without prejudice.” Id. at 12.
b. Petitioners Cannot Show Maine Courts Are Incapable of Adjudicating COVID-19-Related Claims Brought by Class Members.
Respondents state that “the state courts would clearly not be overburdened by petitions by the two named class members” and “[w]hether state courts would be overburdened if every single putative class member filed a state-court action is not the relevant question and in any event is purely speculative.” Id. at 12. Respondents cite authority from other district courts suggesting that generalized facts regarding delays caused by COVID-19 are not enough to excuse exhaustion. Id. at 12-13 & n.9.
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c. Other State Remedies Aside from Post-Conviction Relief Are Potentially Available.
Respondents then describe various alternate routes to relief that Respondents believe may be available to Petitioners, noting that “[i]n pointing out these potential avenues for state-court relief, Respondents do not suggest that a class member’s right to such relief would go uncontested by the State in any such proceeding, nor do they waive . . . any arguments that the State might have against such relief.” Id. at 13 n.10. Respondents argue that Petitioners could “file a petition for writ of habeas corpus under 14 M.R.S. § 5501,” “challenge[] the denial of their applications for Supervised Community Confinement (or any other final COVID-related action by MDOC) under the Maine Administrative Procedure Act,” or bring an action to correct an illegal sentence under Maine Rule of Unified Criminal Procedure 35. Id. at 13-15.
2. That State Law Regarding Class-Wide Habeas Relief Is Untested Does Not Excuse Failure to Exhaust
Respondents contend the Court should reject as a matter of law the argument that “because the state criminal procedure rules do not authorize class treatment, they are not subject to the exhaustion requirement.” Id. at 15. Respondents say that recognizing this argument would create “a huge, easily exploited loophole in an exhaustion requirement that is supposed to be applied ‘consistently and rigorously.’” Id. (quoting Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997)).
Respondents assert that such an exception to the exhaustion requirement is “inconsistent with the very language of § 2254” because even if state law would require individual class members to “seek state-court relief actively through an
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individual habeas or PCR action rather than passively as a member of a class,” this fact “in no way makes the State’s corrective processes ‘ineffective’ to protect that particular class member’s rights.” Id. at 16 (quoting 28 U.S.C. § 2254(b)(1)(B)(ii)). Additionally, Respondents argue that the statute’s reference to “any available procedure,” id. (emphasis in Resp’ts’ Mot.) (quoting 28 U.S.C. § 2254(c)), “strongly suggests that Congress did not intend for federal courts to excuse exhaustion merely because state-court rules did not include the applicant’s preferred procedural mechanism for presenting his claims.” Id.
Finally, Respondents argue that the fact that a class petition in state court is untested does not make it unavailable for purposes of § 2254 exhaustion, though Respondents are also careful to note that they plan to oppose class certification at the state court level.5 Id. at 16-17 & n.12. Respondents assert that “Petitioners undoubtedly have the opportunity to make the case for a class petition before [the state court]; they simply have not tried.” Id. at 17. Respondents contend that Petitioners “could attempt to assert class-action claims” in all the various alternative proceedings suggested earlier by Respondents. Id. Respondents conclude by arguing that it is not Respondents’ burden to establish that a class action remedy is permitted, but Petitioners’ burden to “establish—to a ‘certainty’—that such a remedy is not

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The MDOC asserts it will “likely oppose class treatment of this putative class action” at the

state level, id. at 17 n.12, despite Respondents’ previous assertion that they do not “have any authority

to waive” any arguments that the state of Maine, the listed respondent in Mr. Denbow’s state court

petition, might have. Id. at 13 n.10. As the State acknowledges that Respondents in this case and in

the state court case are represented by the Maine Attorney General’s Office, any distinction between

the two seems, in practical terms, a legal fiction.

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permitted.” Id. at 18 (emphasis in original) (quoting Roman v. DiGuglielmo, 675 F.3d 204, 209 (3d Cir. 2012)).
3. Younger Abstention Bars Joseph Denbow’s Claims Respondents contend that the requirements for Younger abstention, see Younger v. Harris, 401 U.S. 37 (1971), are met, as “[a] state PCR proceeding in which the petitioner seeks relief from a criminal sentence ordered by a state court ‘implicate[s] a State’s interest in enforcing the orders and judgments of its courts’” and thus is an exception proceeding, Resp’ts’ Mot. at 18-19 (alterations in Resp’ts’ Mot.) (quoting Sirva Relocation, LLC v. Richie, 794 F.3d 185, 192 (1st Cir. 2015)); that PCR proceeding was ongoing as of the time Respondents filed their motion to dismiss, id. at 19; “[a]n order from this Court releasing [Mr.] Denbow from custody would interfere with that state proceeding by effectively terminating it,” id.; “state habeas and post-conviction proceedings implicate a state’s ‘enforcement of criminal laws and the administration of its judicial system,’ which are ‘vital state interests,’” id. (quoting Ridge v. Campbell, 984 F. Supp. 2d 364, 375 (M.D. Pa. 2013)); and “[Mr.] Denbow has a full opportunity to advance his federal constitutional challenge in those state proceedings.” Id. at 20. B. Petitioners’ Opposition Petitioners begin by stating that when they filed their petition in this Court, “the state courts were operating at a greatly reduced capacity, with no apparent procedural avenue to adjudicate claims on behalf of the 900+ putative class members who are medically vulnerable to COVID-19.” Pet’rs’ Opp’n at 1. Petitioners assert
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that the Court should apply and excuse the prudential exhaustion requirement of 28 U.S.C. § 2241 or, if the statutory exhaustion provision of 28 U.S.C. § 2254 applies, reject Respondents’ motion to dismiss because at the time the petition was filed, it appeared that state Court remedies would be unavailable or ineffective to provide necessary relief. Id. Petitioners also note that “[i]n their motion, Respondents make no showing that class relief is available under . . . any of the potential remedies on which they rely” and also do not “show that potential remedies such as the Maine Administrative Procedure Act and Maine Criminal Procedure Rule 35 are appropriate to raise the constitutional and federal statutory violations asserted here.” Id. at 2. Petitioners point out that “Respondents admit that they are trying to have it both ways, arguing in this Court that class relief is available in state proceedings, while acknowledging their intention to argue to the state court against class treatment of Petitioners’ claims.” Id. Finally, Petitioners contend that if “the Court is not inclined to deny the Motion [to Dismiss] outright,” it should “defer a final ruling on this Motion and retain jurisdiction until the issue of whether class relief is available is resolved in the state courts.” Id.
1. The Court May Grant Habeas Relief to Petitioners Under 28 U.S.C. § 2241 Without Exhaustion of State Remedies.
Petitioners argue that the Court should waive exhaustion, as “where ‘unusual circumstances’ exist, a federal court may grant habeas relief pursuant to Section 2241 without exhaustion of state remedies.” Id. at 3 (quoting Benson v. Superior Court Dep’t of Trial Court, 663 F.2d 355, 358 (1st Cir. 1981)) (citing Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977)). They state that given the “extraordinary
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circumstances posed by the COVID-19 pandemic and its imminent threat to the health and lives of the Class, the Court should determine Section 2241 is applicable here, and that exhaustion is not required.” Id.
2. The Court May Grant Habeas Relief Under Section 2254 Without Exhaustion Here Where “It Appears that” State Court Remedies Are Unavailable and/or Ineffective to Protect the Rights of Petitioners and Putative Class Members.
Petitioners point to “two escape hatches from the general exhaustion requirements,” arguing “exhaustion of available state court remedies is not required where ‘it appears that’ (i) state court corrective processes are not available, or (ii) circumstances exist that render such process ineffective to protect the rights of the Petitioners and other putative Class Members.” Id. at 3-4 (quoting 28 U.S.C. § 2254(b)(1)(B)(i)-(ii)). Petitioners assert that denial of the motion to dismiss is proper under either of these options because “Respondents have not rebutted Petitioners’ showing that it appears that none of” the potential remedies raised by Respondents “were available and effective at the time of filing of the Petition to protect the rights of the putative Class Members” or that class relief is available under any of these procedural vehicles. Id. at 4-5.
a. 28 U.S.C. § 2254’s Exhaustion Requirements Apply Only to Remedies Available at the Time of Filing.
Petitioners argue as “a threshold matter” that “the Section 2254 exhaustion provisions apply only to a petitioner’s failure to exhaust state court remedies that are available ‘at the time he files his application in federal court.’” Id. at 5 (quoting Fay v. Noia, 372 U.S. 391, 399 (1963), overruled in part on other grounds by Wainwright
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v. Sykes, 433 U.S. 72 (1977)) (citing Dana v. Tracy, 360 F.2d 545, 548 (1st Cir. 1966)). Petitioners state that “although the decisions in Fay and Dana predated the statutory amendments in the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’), the futility exceptions to the exhaustion requirement have remained the same.” Id. Petitioners state that “Respondents devote much of their brief to arguing that since the time of filing of the Petition . . . ‘it has since become clear’ that the Maine courts will proceed with Mr. Denbow’s state action,” id. at 6 (quoting Resp’ts’ Mot. at 10), and argue that such contentions “are irrelevant, and should be given no weight by the Court.” Id.
b. Class Relief Is Critical to Protect the Rights and Lives of the Putative Class Members but Is Not Apparently Available in State Court Proceedings.
Petitioners argue “[a] state remedy is not available, and hence exhaustion is not required, if the availability or effectiveness of a proposed remedy is merely conjectural at the time of filing of the petition” and that “where a petitioner has not exhausted state remedies, ‘the court may still grant habeas relief when it appears that requiring the petitioner to exhaust his remedies is futile.’” Id. at 6-7 (emphasis in Pet’rs’ Opp’n) (quoting Banks v. Smith, 377 F. Supp. 2d 92, 95 (D.D.C. 2005)). In Petitioners’ view, “although class relief is critical and necessary in this action to protect the rights, and potentially the lives, of the over 900 putative Class Members, Respondents not only fail to show class relief is clearly available they admit that the ‘reality is no one knows whether Maine courts will allow such class claims.’” Id. at 7 (emphasis in original) (quoting Resp’ts’ Mot. at 18).
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i. Class Relief Is Necessary and Critical in this Action.
Petitioners give background on the COVID-19 virus and repeat some of their allegations about Respondents’ response to the virus. Id. at 7-9. Petitioners state that “[g]iven the urgent risks posed by the COVID-19 pandemic, and the systemic nature of the harm, proceeding as a class is critical to protecting the rights of Petitioners and putative Class Members.” Id. at 9.
ii. There Is No Established Class Remedy Available in State Court.
Petitioners state that “it does not appear that any class remedy is available to Petitioners and the putative Class Members under state law” and “state law provides that petitions for post-conviction review ‘may attack only a single proceeding.’” Id. (quoting ME. R. UNIFIED CRIM. P. 67(b)). Petitioners further contend that PCR petitions are covered by the Maine criminal rules rather than the Maine rules of civil procedure and that “state law provides that the post-conviction review procedures are the ‘exclusive method’ for ‘reviewing post-sentencing proceedings occurring during sentences.’” Id. at 9-10 (quoting 15 M.R.S. § 2122). Petitioners state that because they are “not required to exhaust conjectural remedies . . . the Motion [to Dismiss] must be denied.” Id. at 10.
iii. Filing of Individual PCR Actions by Each Class Member Would Not Provide an Effective or Available Remedy.
Petitioners argue that “whether a remedy is available is to be determined as of the time of filing of the petition, and therefore whether the Maine Courts are getting
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back to more normal operations now,” as Respondents argue, “is not relevant.” Id. at 11. Petitioners also reject Respondents’ argument that “the ‘mere passage of time’ and delay in processing of state remedies does not render a remedy ineffective, id. at 12 (quoting Resp’ts’ Mot. at 11), because “[t]his is not an ordinary case where a habeas petitioner contends he or she is being detained unlawfully, but the only harm the petitioner may suffer while the state court process plays out is the harm of continuing to be unlawfully confined.” Id.
Petitioners further contend that “proceeding on an individual basis in state post-conviction reviews is not feasible when the risks of COVID-19 to medically vulnerable prisoners—and the State’s refusal to adequately protect prisoners from those risks—are common to all claims.” Id. Petitioners discuss McPherson v. Lamont, No. 3:20cv534 (JBA), 2020 WL 2198279 (D. Conn. May 6, 2020), and argue that this case is similar because “it would not be feasible for the Maine Superior Court to expeditiously process 900+ individual petitions, especially during the already difficult logistical challenges posed by the COVID-19 pandemic” including lack of normal access to law libraries. Id. at 12-13. Additionally, “due to the prioritization of other matters, the Maine courts often put PCR proceedings at the bottom of the list” and “a wave of over 900 PCR cases would almost certainly overwhelm the Courts,” as “even during normal circumstances, obtaining PCR relief is a lengthy and time-consuming process . . ..” Id. at 13.
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iv. Respondents Fail to Demonstrate that Any Class Remedy Is Available or Effective for State Habeas Corpus Under 14 M.R.S. § 5501.
Petitioners contend that, despite Respondents’ claim that “each Petitioner and putative Class Member could file a petition for habeas corpus under 14 M.R.S. § 5501,” this remedy is not available because “under state law, the writ is only available if a person has no other available means of redress” and “the state PCR procedures provide that they are the exclusive state remedy for post-conviction review.” Id. at 15. Even if this were not the case, Petitioners argue that “the proposed remedy under 14 M.R.S. § 5501 is . . . subject to the same failings rendering it ineffective to protect the putative Class Members’ rights as is the state PCR remedy.” Id. Additionally, Petitioners point out that Respondents “now concede that they will oppose class treatment in state court.” Id.
v. Respondents Fail to Demonstrate that Any Remedy Under the Maine Administrative Procedure Act or Maine Rule of Unified Criminal Procedure 35 Is Available or Effective to Protect the Rights of the Putative Class Members.
Petitioners contend that “Section 11001 of Title 5 of the Maine Administrative Procedure Act . . . . would not be available or effective in the circumstances, given the long time frame for administrative actions” and because it is “unknown whether class procedures” are available. Id. at 16.
Petitioners further argue that Maine Rule of Unified Criminal Procedure 35 “addresses defects in sentencing, not impermissible conditions in a prison facility which arise only after sentencing” and a motion for relief under the rule must be
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made within a year after sentence is imposed. Id. A time-barred remedy, according to Petitioners, is “not available for purposes of Section 2254.” Petitioners state that “[e]ven if this vehicle were applicable to the type of claims asserted by Petitioners in this case (which it is not), given the one year time limit, it would almost certainly not be available or effective for a large portion of the putative Class” and “it does not provide any basis for class relief.” Id. at 17.
c. The State Court Exhaustion Requirements Should Be Deemed Satisfied Based on Respondents’ Admission They Will Likely Oppose the Availability of Class Remedies and Other Avenues of Relief in State Court.
Petitioners point to Respondents’ concession “that although they are arguing to this Court that there are unexhausted remedies available to Petitioners in state court, in state court they may take the position that such remedies are not available to Petitioners” and argue that “[t]he federal courts . . . have rejected the notion that a state may escape federal court habeas review by arguing to the federal court that remedies are available to the petitioner in state court” but arguing the opposite in state court. Id. Petitioners contend that “this Court should not countenance Respondents’ attempts to have it both ways, when that position would leave Petitioners without an available and effective avenue to assert their weighty constitutional and statutory claims.” Id. at 18.
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d. The Court Should, in the Alternative, Defer Ruling Until the State Court Determines if a Class Remedy Is Available Under Maine Law.
Petitioner argues that if the Court “is not inclined to deny the Motion [to Dismiss] outright,” it should instead defer ruling until the state court passes on the issue of whether Mr. Denbow’s state petition could include class relief. Id.
3. Younger Abstention Does Not Bar Joseph Denbow’s Claims.
Petitioners argue that Respondents’ contentions about Younger “lack[] merit because the fundamental requirement of Younger abstention[,] a federal plaintiff seeking to enjoin a state proceeding, is absent here.” Id. at 19. Petitioners argue that “Younger is ‘inapplicable’ to a parallel litigation in which the federal plaintiff ‘has not asked that any state proceeding be enjoined.’” Id. (quoting Williams v. Lambert, 46 F.3d 1275, 1282 (2d Cir. 1995)). Petitioners assert that “Mr. Denbow has not asked this Court to enjoin any ongoing state proceeding or interfere with an action being prosecuted by Respondents” and therefore “Younger is not applicable.” Id. Petitioners conclude by attacking Respondents’ argument that “an order from this Court releasing Mr. Denbow would interfere with his pending state court action by effectively terminating it,” arguing that “terminating a case because of mootness is not at all the same as seeking to enjoin it.” Id. at 20.
C. Respondents’ Reply Respondents apprise the Court of new district court authority dismissing or recommending dismissal “of COVID-19 related federal habeas petitions for failure to exhaust.” Resp’ts’ Reply at 1-2 (citing cases). Respondents also alert the Court that
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Mr. Denbow’s state PCR petition was dismissed for failure to exhaust administrative remedies and, prior to that, the same court denied his motion for bail. Id. at 1.
D. Petitioners’ Sur-Reply Petitioners state that “the denial of post-conviction bail and ultimate dismissal of Mr. Denbow’s state petition for post-conviction review do not support the Respondents’ motion to dismiss” because these events do not affect the state court remedies that were available at the time the petition was filed, which is the relevant inquiry. Pet’rs’ Sur-Reply at 1-2. Petitioners then state that “the 21-day period to appeal the state court dismissal has not yet elapsed” and therefore, “[t]o the extent Mr. Denbow does not appeal, the state court dismissal would be fatal to the Respondents’ arguments regarding Younger abstention, which prevents federal courts from enjoining ongoing state court proceedings.” Id. at 2. Petitioners conclude by differentiating the new authority raised by Respondents, arguing that many of the cases “do not meaningfully address the futility of state court remedies at issue here” and that the remaining cases do not address “the specific circumstances here: namely, state courts that were unavailable or ineffective to handle the 900+ petitions of all putative class members, and did not offer a class remedy to adjudicate such claims.” Id. at 2-4. III. LEGAL STANDARD 28 U.S.C. § 2254(b)(1) reads: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—
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(A) the applicant has exhausted the remedies available in the courts of the State; or (B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
A petitioner “has exhausted the remedies available in the courts of the State” when that petitioner has “tendered his federal claim [to the state’s highest court] in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question.” Barresi v. Maloney¸296 F.3d 48, 51 (1st Cir. 2002) (alterations in Barresi) (quoting Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000)). “The petitioner bears the heavy burden of demonstrating satisfaction of the exhaustion requirement.” Id. IV. DISCUSSION
A. Younger Abstention Does Not Bar the Court from Considering the Petition
Respondents argue in their motion that Mr. Denbow’s PCR petition means the Court should abstain from hearing his claims in this case based on Younger. Resp’ts’ Mot. at 18-20. Petitioners point out that Mr. Denbow’s PCR petition has since been dismissed, and “[t]o the extent Mr. Denbow does not appeal, the state court dismissal would be fatal to the Respondents’ arguments regarding Younger abstention . . ..” Pet’rs’ Sur-Reply at 2. Petitioners then inform the Court that Mr. Denbow did not appeal the denial of his PCR petition and the time to do so has now run. Notice Regarding the Status of Mr. Denbow’s State Ct. PCR (ECF No. 53). As there is now no state court proceeding, which provided the premise for Respondents’ Younger arguments, the Court agrees with Petitioners that Younger is inapplicable.
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B. The Statutory Exhaustion Requirement of 28 U.S.C. § 2254 Applies to This Case
Petitioners repeat their argument that the Court should apply the prudential exhaustion requirement of 28 U.S.C. § 2241 rather than the statutory exhaustion requirement of 28 U.S.C. § 2254. Pet’rs’ Opp’n at 2-3. The Court has already ruled that the exhaustion requirement in § 2254 is applicable to Petitioners’ § 2241 petition. Order on Mot. for TRO at 35-38 (discussing Brennan v. Wall, 100 F. App’x 4 (1st Cir. 2004), and González-Fuentes, 607 F.3d 864, and concluding that the Court will “appl[y] the statutory requirements of § 2254 to Petitioners’ § 2241 claims”). The Court understands Petitioners’ desire to preserve arguments for appeal, but the Court will not revisit this ruling. The statutory exhaustion requirement of 28 U.S.C. § 2254 is applicable.
C. The Possible Unavailability of Class Relief in the State System Does Not Excuse the Named Petitioners from Exhausting Their Claims in State Court
Petitioners assert that “[b]ecause Respondents have failed to show that any class remedy is clearly available, and admit that the availability of such relief is conjectural, exhaustion is not required, and [Respondents’] Motion must be denied.” Pet’rs’ Opp’n at 7. Assuming without deciding that a class remedy is not available in state court, the Court does not see why that should excuse the named petitioners from exhausting. 6

6

Any contradiction between the position of the State concerning whether state law and

procedure allow for a class action in this situation would be better addressed by the State court, where

the difference, if any, between what the State is arguing here and there would be before the court. For

example, it could be one thing if the State contends during the state proceeding that a class action is

wholly unavailable under state law and another if the State contends that, although available, the

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In United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974), a habeas class action under § 2254, the Second Circuit stated that “state remedies have been characterized as ‘ineffective’ for purposes of § 2254(b) not only because they were procedurally inadequate, but also where recent state holdings on a question of substantive law demonstrated that relitigation of the same issue would have proven futile.” Id. at 1130 (citing Dana v. Tracy, 360 F.2d 545, 548 (1st Cir. 1966); Reed v. Beto, 343 F.2d 723 (5th Cir. 1965), aff’d on other grounds sub nom., Spencer v. Texas, 385 U.S. 554 (1967); Evans v. Cunningham, 335 F.2d 491 (4th Cir. 1964)). The Second Circuit went on to state that for a futility exception to be applicable, “[a federal court] must be sure that the state court has had the opportunity recently to consider the identical claim” and that “its decision of the issue [was] so clear that any further consideration given similar cases by the state court is likely to be summary, so that a federal court entertaining such a case is not likely to disrupt state judicial administration.” Id. “These same considerations” led the Second Circuit to conclude that “the exhaustion requirements for the petitioning class [were] met by the actions of” two of the named petitioners and one other member of the class who fully exhausted. Id. “Under these conditions, [the Second Circuit was] unwilling to impose upon other members of the class the burden of inundating the state courts with applications which would be as time-consuming as they would be useless.” Id.
The rationale for requiring only a subset of petitioners in a class habeas petition to exhaust is a convincing one. Once the courts of a state have passed on
proposed class action does not meet the Rule 23 requirements for a class action, an argument that could be made here as well.
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claims that are not case specific but shared by a class of petitioners, it would be futile for the remainder of the class to exhaust their state remedies based on those same claims. See Allen v. Att’y Gen. of Maine, 80 F.3d 569, 573 (1st Cir. 1996) (“[I]f a state's highest court has ruled unfavorably on a claim involving facts and issues materially identical to those undergirding a federal habeas petition and there is no plausible reason to believe that a replay will persuade the court to reverse its field, then the state judicial process becomes ineffective as a means of protecting the petitioner's rights”). But until at least one petitioner has exhausted those remedies, the Petitioners are unable to demonstrate that the state remedies are futile.
Petitioners contend that “proceeding on an individual basis in state postconviction reviews is not feasible when the risks of COVID-19 to medically vulnerable prisoners—and the State’s refusal to adequately protect prisoners from those risks— are common to all claims.” Pet’rs’ Opp’n at 12. Although maintaining the current action would be more efficient than multiple separate individual claims initiated in state court, the Court is not convinced that proceeding in state court would be as onerous as the Petitioners contend. First, the Maine courts may allow the petitioners to proceed with a class action like the one presented in this case. Second, even if the state courts required them to proceed with separate claims, to do so would not necessarily be unfeasible or inadequate. If one petitioner won in state court and the petitioner’s claims were truly “common to all claims,” the State would be hard-pressed to continue to reassert in Superior Court the losing arguments in a subsequent
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petition filed by a similarly-situated prisoner.7 In fact, the State might be precluded from doing so under non-mutual offensive collateral estoppel.8 Last, assuming a petitioner exhausted state remedies and lost, the petitioner would be free to bring a class habeas petition in federal court. In other words, win or lose, requiring at least one petitioner to exhaust could allow for speedy and uniform resolution of all similar claims.
At the same time, the Court acknowledges that it may be unrealistic to hold such a benign view of the efficiency of any court system to adjudicate multiple individual claims when the risk of COVID-19 pandemic to inmates is so immediate and urgent. Nevertheless, the overriding point is that § 2254(b)(1) does not allow a federal court to carve out an exception to the exhaustion requirement whenever a federal judge deems that the immediacy and urgency of the facts make it advisable to do so.

7

If the State did not appeal the trial court judgment or the Supreme Judicial Court affirmed,

the State could be barred in the future from raising the losing defense.

8

Collateral estoppel, now often called issue preclusion, “prevents a party from relitigating

issues that have been previously adjudicated.” Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756,

770 (1st Cir. 2010). Collateral estoppel may be asserted offensively by a plaintiff who “seeks to

foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully

in an action with another party.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n.6 (1979).

Mutuality of parties is not strictly required; rather, the “most important question” is whether

defendants “received a full and fair opportunity to litigate their claims.” Acevedo-Garcia v. Monroig,

351 F.3d 547, 575 (1st Cir. 2003) (quoting Parklane Hosiery, 439 U.S. at 322). In answering this

question, courts in the First Circuit consider four factors: 1) whether the issue is the same as that

disputed in a prior proceeding, 2) whether the issue was actually litigated, 3) whether the issue was

determined by a valid and binding final judgment or order, and 4) whether the determination of the

issue in the prior proceeding was essential to the final judgment or order. Id. at 575-76. See Jones v.

Fairbank Reconstruction Corp., No. 2:11-cv-437-GZS, 2013 WL 6019294 (D. Me. Nov. 13, 2013)

(considering the factors for a claim of offensive collateral estoppel). If a petitioner were successful in

a state court action in which the Respondents were parties, other litigants could seek to preclude the

State from relitigating the previously decided issues.

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While the Court found multiple cases taking this basic approach, it did not find any cases supporting the Petitioners’ proposition that the unavailability of a class remedy in state court excuses the exhaustion of all class members. See Mays, 2020 WL 1812381, at *6 (stating that § 2241 claim “on the part of the representatives of subclass A [wa]s barred due to their failure to exhaust available state court remedies”); Pace v. Chino Inst. for Men, No. EDCV 09-00841 CBM (AN), 2009 WL 2189885, at *2 (C.D. Cal. July 21, 2009) (dismissing habeas petition brought under § 2254 for failure to exhaust without considering whether § 2254 allows class petitions); see also Barfield v. Cook, No. 3:18-cv-1198 (MPS), 2019 WL 3562021, at *8 (D. Conn. Aug. 6, 2019) (applying the same logic in the context of Prison Litigation Reform Act class action); Butler v. Suffolk Cty., 289 F.R.D. 80, 97 (E.D.N.Y. 2013) (same).9
D. Petitioners Have Not Met Their Burden to Show No State Remedies Were Available at the Time of Filing the Petition10
The Court agrees with Petitioners that the proper time to evaluate whether “it appears that” there was an “absence of available State corrective process” when Petitioners filed their petition in this case is at the point the petition was filed. See Pet’rs’ Opp’n at 5-6 (quoting Dana, 360 F.2d at 547 n.1) (citing Fay, 372 U.S. 391); see

9

Section 2254(b) repeatedly uses singular language (i.e. “a person;” “the applicant”), consistent

with an intent that individuals comply with the exhaustion requirement individually. Once one or

more petitioners fully exhausts a claim common to all class members in the state courts, the other

class members are not excused from the requirement that they individually comply with section

2254(b); rather, section 2254(b)’s requirement may be met for these class members because further

exhaustion would be ineffective to protect their rights.

10

Because the Court concludes that the PCR process was available to Petitioners when they filed

their petition in this Court, it is irrelevant whether any of the other avenues for relief suggested by

Respondents was available.

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also Dana, 360 F.2d at 548 (“The availability of [state] remedies should be assessed as of the time when application was made for the writ of habeas corpus”). As such, the Court does not consider developments in Mr. Denbow’s PCR petition case subsequent to his filing this federal habeas petition on May 15, 2020.
Petitioners cannot show that the PCR process was not available to them and do not argue that it was inadequate to achieve the relief they seek here. Mr. Denbow filed his PCR petition on April 13, 2020. On April 23, 2020, Justice Anderson ordered the State to respond and ordered that the petition should be assigned to a justice, stating “[d]ue to the unique nature of the petition in the face of Petitioner’s chronic health issues and the COVID-19 pandemic, the petition will be assigned.” Resp’ts’ Mot., Attach. 6, Order Assigning Pet. for PCR at 2. Justice Anderson specifically noted that “[d]ue to the apparent time-sensitive nature of the petition, the assigned court undoubtedly has the discretion to modify the timelines prescribed by the Maine Rules of Unified Criminal Procedure governing petitions for post-conviction review.” Id. at 2 n.1. On April 24, 2020, Chief Justice Mullen assigned the petition to Justice Cole. Due to a clerical error, these orders were not docketed until after Petitioners filed their petition in this Court.
In other words, by the time they filed their petition in this Court, Mr. Denbow’s PCR petition had been in state court for just over a month with, as far as Mr. Denbow was aware, no response. Although a state court’s failure or refusal to proceed expeditiously with a time-sensitive claim based on COVID-19 could make it appear that the state corrective process was not available, Petitioners bear the burden to
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demonstrate compliance with the exhaustion requirement of 28 U.S.C. § 2254(b) and they have not done so here. For example, Petitioners did not inform the Court of any steps Mr. Denbow took to check on the status of his PCR petition. If he had taken such steps, he would have discovered that the Maine Superior Court did regard his PCR petition as urgent, that it had both ordered the State to respond, and that it had assigned the petition to a justice within ten days of Mr. Denbow’s filing. It is unfortunate that a clerical error made it difficult for Mr. Denbow to actually know that the Superior Court was proceeding speedily with his petition, but it is not enough, standing alone, to demonstrate his compliance with § 2254(b).
The simple fact that Mr. Denbow did not hear about the status of his PCR petition for a little over thirty days, without any indication that he investigated this delay or any evidence that the state courts were actually overwhelmed, is not sufficient for Petitioners to carry their burden. Petitioners cite a Fifth Circuit case, Shelton v. Heard, for the proposition that delay can “render the exhaustion requirement meaningless.” Pet’rs’ Opp’n at 12 (citing Shelton v. Heard, 696 F.2d 1127, 1129 (5th Cir. 1983)). Far from the thirty-day delay here, however, Shelton involved an unexplained delay of sixteen months. Shelton, 696 F.2d at 1129. Petitioners further assert that when their petition was filed in this court, “the Maine Judicial Branch was operating with reduced court hours, and had cancelled or delayed all ‘criminal matters (except as related to the incarceration of a defendant).’” Pet’rs’ Opp’n at 11 (footnote omitted) (quoting PMO-SJC-1). However, as demonstrated by the fact that the Superior Court assigned Mr. Denbow’s petition and
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ordered the State to respond, hearings of any type were going forward if a party could demonstrate or the court determined urgent and compelling reasons requiring that the hearing take place. See PMO-SJC-1 at 3. Petitioners also reference the State’s opposition to “allowing even a hearing on Mr. Denbow’s emergency request for bail . . ..” Pet’rs’ Opp’n at 11. But the State’s opposition within the context of an adversary system is irrelevant to whether “State corrective process” was “available . . ..” 28 U.S.C. § 2254(b)(1)(B)(i). The Court concludes that at the time Petitioners filed their petition in this Court, the PCR procedure was available in the state court.
The Court understands and is concerned about the extraordinary circumstances posed by the COVID-19 pandemic and its potentially grave risk to inmates. But the State judiciary in Maine is no doubt equally aware and equally concerned about the risks the COVID-19 virus poses to state inmates and the Court draws comfort from its view that the state courts in Maine are just as capable of efficiently addressing critical legal issues affecting fundamental rights as the federal court. See Bettencourt v. Bd. of Registration in Med. of Com. of Mass., 904 F.2d 772, 776 (1st Cir. 1990) (“Underlying our federal system is a presumption that the state courts are as capable as their federal counterparts of guaranteeing federal rights”). Under our federal system, the federal and state courts are “equally bound to guard and protect rights secured by the Constitution.” Rose v. Lundy, 455 U.S. 509, 518 (1982) (quoting Ex parte Royall, 117 U.S. 241, 251 (1886)). The exhaustion doctrine is “principally designed to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Id. As a result, “federal
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courts should not consider a claim in a habeas corpus petition until after the state courts have had an opportunity to act.” Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011) (quoting Rose, 455 U.S. at 515).
E. The Court Declines to Defer a Ruling Until the State Court Determines if a Class Remedy is Available Under Maine Law
Petitioners argue that, in the alternative, the Court should defer a ruling or stay proceedings until the state court determines whether a class remedy is available under Maine law. Pet’rs’ Opp’n at 18. As already discussed, however, the Court finds that Petitioners have failed to exhaust, regardless of whether a state class action is available. The Petitioners cite Rhines v. Weber for the proposition that “even if a federal court believes state remedies have not been exhausted, it may stay the federal proceeding pending state exhaustion.” Id. However, Rhines allowed district courts to grant stays “only in limited circumstances” involving mixed petitions, where the petitioner’s habeas petition included both exhausted and unexhausted claims.11 Rhines v. Weber, 544 U.S. 269, 275-78 (2005); Josselyn v. Dennehy, 475 F.3d 1, 4-5 (1st Cir. 2007) (explaining the policies underlying federal stays in mixed petition habeas cases). Because here the Petitioners’ petition contains only unexhausted claims and the lack of a state class remedy does not excuse failure to exhaust, the Court declines to stay the case. The Court does, however, dismiss this action without prejudice because its ruling does not reach the merits of Petitioners’ claims and, if

11

Another reason to stay the federal claim would be if there is a potential statute of limitations

problem. See Anversa v. Partners healthcare Sys., 835 F.3d 167, 179 (1st Cir. 2016). But the

Petitioners have not suggested there is a statute of limitations issue here.

30

Case 1:20-cv-00175-JAW Document 55 Filed 08/14/20 Page 31 of 31 PageID #: 1113 necessary, once they have exhausted their state remedies, they may reinitiate their claims in this Court. V. CONCLUSION The Court GRANTS Respondents’ Motion to Dismiss (ECF No. 31) and DISMISSES without prejudice Petitioners’ Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief (ECF No. 1). SO ORDERED. /s/ John A. Woodcock, Jr. JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE Dated this 14th day of August, 2020
31

Output:
COVID-vulnerable inmates of the Maine Department of Corrections, seeking to represent a class of medically vulnerable and disabled inmates, brought this habeas action in an effort to force the Department to de-densify its prisons by releasing prisoners.  Filed May 15, 2020 in the U.S. District Court for the District of Maine, the complaint alleged that the Department had refused to grant medical furlough or home confinement to inmates; they alleged that this was in violation of the Eighth Amendment, the Americans with Disabilities Act, and the Rehabilitation Act.  The action was assigned to Judge John A. Woodcock, Jr.

Although the Department reported its first case of COVID in May 2020, the court dismissed the plaintiffs’ motion for preliminary injunctive relief in June 2020.  Motions to dismiss the case and to convert the case to a different form of habeas were pending as of July 28, 2020.