Criswell v. Boudreaux, 1:20-cv-01048-DAD-SAB

• Decision Date: 02 September 2020
• Docket Number: No. 1:20-cv-01048-DAD-SAB,1:20-cv-01048-DAD-SAB
• Parties: CHARLES CRISWELL, et al., Plaintiffs, v. MICHAEL BOUDREAUX, in his official capacity as Sheriff of Tulare County, Defendant.
• Court: U.S. District Court — Eastern District of California

CHARLES CRISWELL, et al., Plaintiffs, v. MICHAEL BOUDREAUX, in his official capacity as Sheriff of Tulare County, Defendant.

No. 1:20-cv-01048-DAD-SAB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

September 2, 2020

ORDER GRANTING APPLICATION FOR PROVISIONAL CLASS CERTIFICATION AND GRANTING MOTION FOR A TEMPORARY RESTRAINING ORDER, IN PART

(Doc. Nos. 10, 11, 25)

This matter came before the court on August 26, 2020 for a hearing on the application for provisional class certification (Doc. No. 10) and motion for a temporary restraining order (Doc. No. 11) filed on August 12, 2020 on behalf of plaintiffs Charles Criswell, Levi Johnson, Samuel Camposeco, Adam Ibarra, and California Attorneys for Criminal Justice ("CACJ"), (collectively "plaintiffs"). Attorneys Sara McDermott of Munger, Tolles & Olson LLP and Amy Gilbert of the American Civil Liberties Union Foundation of Northern California ("ACLU") appeared via video for plaintiffs. Tulare County Chief Deputy County Counsel Kathleen A. Taylor, appeared via video for defendant Michael Boudreaux, in his official capacity as Sheriff of Tulare County. For the reasons explained below, the court will grant plaintiffs' application for provisional class certification and grant their motion for a temporary restraining order, in part.

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BACKGROUND

On July 29, 2020, plaintiffs filed their complaint against defendant, alleging the following five causes of action: (1) 42 U.S.C. § 1983 claim for violation of the Fourteenth Amendment of the U.S. Constitution as a result of defendant's reckless failure to act with reasonable care to mitigate the risk posed by COVID-19 to pretrial detainees; (2) 42 U.S.C. § 1983 claim for violation of the Eighth Amendment of the U.S. Constitution by defendant's deliberate indifference to the obvious risks posed by COVID-19 to prisoners; (3) 42 U.S.C. § 1983 claim for violation of the First and Fourteenth Amendments of the U.S. Constitution as a result of defendant's active interference with the ability of plaintiffs and the proposed class to meaningfully access the courts; (4) 42 U.S.C. § 1983 claim for violation of the Sixth Amendment of the U.S. Constitution by defendant's active interference with the right of plaintiffs and the proposed class to access the assistance of their criminal defense counsel; and (5) California Civil Code § 52.1(b) ("Bane Act") claim that defendant interfered or attempted to interfere by threat, intimidation, or coercion with the rights of plaintiffs and the proposed class, including the right to initiate civil actions under California Penal Code § 2601(d). (Doc. No. 1 ("Compl.") at 42-45.)

In their complaint, plaintiffs challenge defendant's "callous indifference to their health and safety" and his "callow attempts to prevent them from challenging his unconstitutional practices in court." (Compl. at ¶ 4.) Plaintiffs "bring this action to prevent avoidable illness and death from COVID-19 among people incarcerated at Tulare County Jails." (Id.) Plaintiffs explain in their complaint that their use of the term Tulare County Jails "refers to the five detention facilities managed by the Tulare County Sheriff's Office: Bob Wiley Detention Facility ("BWDF"), Main Jail, Men's Correctional Facility, Adult Pre-Trial Facility ("APTF"), and South County Detention Facility." (Id. at n.1.)

Plaintiffs Charles Criswell, Levi Johnson, Samuel Camposeco, and Adam Ibarra are currently incarcerated in the Tulare County Jails ("the Jails"). (Id. at ¶¶ 19-22.) Plaintiff Criswell, a 51-year-old man who suffers from Type II diabetes and hypertension, has been incarcerated since October 9, 2019 for possession of a stolen vehicle and drug possession and will

/////be in custody until February 21, 2021. (Doc. No. 11-13 at ¶¶ 2-4.) As of July 1, 2020,¹ plaintiff Criswell declared that he was incarcerated in the Main Jail, following his transfer from BWDF in January 2020. (Id. at 2.) Plaintiff Johnson, a 60-year-old man with congenital heart failure, hypertension, and respiratory problems, has been incarcerated since June 21, 2020 as a pre-trial detainee facing spousal battery charges. (Doc. No. 11-17 at ¶¶ 2-3, 5.) Plaintiff Johnson is currently incarcerated in BWDF, though he was initially booked into APTF and had been transferred to the Main Jail in mid-July. (Id. at ¶ 6; Doc. No. 11-18 at ¶ 2.) Plaintiff Camposeco, a 24-year-old man, has been incarcerated in the Jails since February 16, 2017 as a pre-trial detainee facing felony murder charges. (Doc. No. 11-11 at ¶ 2.) Plaintiff Camposeco is currently in custody at BWDF. (Id.) Plaintiff Ibarra, a 33-year-old man, has been incarcerated in the Jails since September 20, 2019 as a pre-trial detainee facing charges for drug possession, gun possession, and attempted murder. (Doc. No. 11-16 at ¶ 2.) Plaintiff Ibarra is currently incarcerated in BWDF. (Id.)

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///// These incarcerated plaintiffs seek to represent a class defined as "all people who are now, or in the future will be, incarcerated in Tulare County Jails, including as subclasses: (i) persons confined pre-trial, (ii) persons confined pursuant to a judgment of conviction, and (iii) Medically Vulnerable persons confined pre-trial and pursuant to a judgment of conviction." (Compl. at ¶ 161.)²

Plaintiff CACJ is "a membership organization of criminal defense attorneys practicing in California," including member attorneys who handle criminal cases in Tulare County and who have current and former clients now incarcerated in the Jails. (Id. at ¶ 23.) Plaintiffs allege that CACJ's mission and goals are frustrated by "[d]efendant's current COVID-19 policies and practices," which have caused CACJ "to expend and divert its resources" to this litigation rather than spend its time on advocacy work "to advance justice, fairness, and constitutional protections in the criminal justice system in the courts and the Legislature." (Id.)

The allegations of plaintiffs' complaint detail defendant's purported failures to address the threat posed by COVID-19, including the following:

• Maintaining an explicit policy forbidding incarcerated people from wearing masks. (Id. at ¶¶ 9, 88-93.)

• Failing to provide necessary personal protection equipment, including masks, to staff and incarcerated people. (Id. at ¶¶ 50-59.)

• Refusing to test incarcerated people for COVID-19, even those who have symptoms or have been exposed to someone infected with COVID-19. (Id. at ¶¶ 60-65, 98-101.)

• Refusing to quarantine new intakes on arrival or implement appropriate quarantine measures in housing units in the Jails. (Id. at ¶¶ 66-68, 108-112.)

• Failing to implement a social distancing plan despite the Jails having the needed space to spread out, and instead, maintaining policies to prevent incarcerated people from practicing social distancing. (Id. at ¶¶ 69-75, 102-105.)

• Failing to provide an adequate amount of proper cleaning and hygiene supplies to incarcerated people and failing to adequately maintain sanitary conditions in the Jails. (Id. at ¶¶ 76-82, 113-115.)

• Failing to consider releasing incarcerated people to reduce the population in the Jails to make social distancing possible, including considering at a minimum, releasing the Medically Vulnerable to home confinement until social distancing is possible. (Id. at ¶¶ 116-125.)

• Refusing to be transparent about his response to COVID-19 in the Jails, including obfuscating and hiding from public scrutiny any information about his response, or lack thereof, to COVID-19. (Id. at ¶¶ 126-130.)

In addition, plaintiffs have alleged several specific instances of retaliation and intimidation taken against incarcerated people who challenge these purportedly unconstitutional conditions of confinement, whether through the internal grievance procedure in the Jails or by seeking legal assistance and access to the courts. (Id. at ¶¶ 83-87, 131-144.) For example, incarcerated people who have spoken to the ACLU investigator and attorneys have been: (i) repeatedly questioned by deputies about why they were meeting with the ACLU and what was discussed during their legal visits (including one instance of questioning by an armed deputy); (ii) transferred to less desirable work as a cleaner in the intake unit, which carries a higher risk of exposure to COVID-19 due to defendant's failure to quarantine newly-booked incarcerated people; and (iii) reclassified as high-security inmates and transferred to a high-security unit, despite not facing as serious charges as the others housed in that unit. (Id. at ¶¶ 131-144.) Several incarcerated people, including the named plaintiffs, have also had their legal visits cancelled and have been prevented from having confidential legal visits with counsel. (Id. at ¶¶ 141-144.)

Plaintiffs further allege that in response to their counsel's investigation, defendant promulgated a new legal visitation policy on May 29, 2020 designed to frustrate the ability of incarcerated people to participate in confidential legal visits in the Jails. (Id. at ¶¶ 13-14, 145-157.) On June 4, 2020, defendant issued a memo outlining these new restrictions, which specifically limit legal visits to attorneys who had already been designated as an incarcerated person's "attorney of record," thereby precluding attorneys from meeting confidentially with prospective clients or current clients for whom a lawsuit has not yet been filed. (Id.) Plaintiffscontend that this policy on its face interferes "with the attorney-client privilege at the most critical stage, i.e. the first meeting before an attorney has even entered an appearance on behalf of a client." (Id. at ¶ 145.) In practice, since the promulgation of this new policy, "no potential class members have been afforded a confidential meeting with ACLU attorneys," and "criminal defense attorneys have also found their clients' access cut off." (Id. at ¶¶ 14, 146.) Moreover, plaintiffs allege that even after their attorneys complied with the requirements...