Doe v. Kelly

• Decision Date: 22 December 2017
• Docket Number: 17-15383,Nos. 17-15381,s. 17-15381
• Citation: 878 F.3d 710
• Parties: Jane DOE, # 1; Jane Doe, # 2; Norlan Flores, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants/Cross-Appellees, v. John F. KELLY, Secretary, United States Department of Homeland Security; Kevin K. McAleenan, Acting Commissioner, United States Customs and Border Protection; Ronald Vitiello, Chief, United States Border Patrol ; Jeffrey Self, Commander, Arizona Joint Field Command; Paul Beeson, Chief Patrol Agent–Tucson Sector, Defendants-Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

878 F.3d 710

Jane DOE, # 1; Jane Doe, # 2; Norlan Flores, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants/Cross-Appellees,

v.John F. KELLY, Secretary, United States Department of Homeland Security; Kevin K. McAleenan, Acting Commissioner, United States Customs and Border Protection; Ronald Vitiello, Chief, United States Border Patrol ; Jeffrey Self, Commander, Arizona Joint Field Command; Paul Beeson, Chief Patrol Agent–Tucson Sector, Defendants-Appellees/Cross-Appellants.

Nos. 17-15381

17-15383

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 16, 2017—San Francisco, California

Filed December 22, 2017

James R. Sigel (argued), Robert J. Esposito, and Elizabeth G. Balassone, Morrison & Foerster LLP, San Francisco, California; Deanne E. Maynard, Sophia M. Brill, Bryan J. Leitch, and Lena H. Hughes, Morrison & Foerster LLP, Washington, D.C.; Louise C. Stoupe and Pieter S. de Ganon, Morrison & Foerster LLP, Tokyo, Japan; Colette Rainer Mayer, Morrison & Foerster LLP, Palo Alto, California; Linton Joaquin, Karen C. Tumlin, and Nora A. Preciado, National Immigration Law Center, Los Angeles, California; Kathleen E. Brody, Daniel J. Pochoda, and Brenda Muñoz Furnish, ACLU Foundation of Arizona, Phoenix, Arizona; James J. Cekola, Morrison & Foerster LLP, San Diego, California; Mary A. Kenney, Melissa E. Crow, and Aaron Reichlin-Melnick, American Immigration Council, Washington, D.C.; Elisa Della-Piana and Megan Sallomi, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, San Francisco, California; Abigail L. Colella, Morrison & Foerster LLP, New York, New York; for Plaintiffs-Appellants/Cross-Appellees.

Christina Parascandola (argued), Trial Attorney; Sarah B. Fabian, Senior Litigation Counsel; William C. Peachey, Director; Chad A. Readler, Acting Assistant Attorney General, Civil Division; Office of Immigration Litigation, District Court Section, United States Department of Justice, Washington, D.C.; for Defendants-Appellees/Cross-Appellants.

Before: Richard C. Tallman and Consuelo M. Callahan, Circuit Judges, and David A. Ezra,^* District Judge.

CALLAHAN, Circuit Judge:

The influx of detainees in the Tucson Sector of the U.S. Border Patrol in 2015 resulted in Defendants (federal government officials and agents) holding detainees being processed for longer periods of time in overcrowded and unsanitary cells at eight different stations. Plaintiffs brought this action alleging inhumane and punitive treatment, and seeking injunctive relief. The district court granted a preliminary injunction requiring that Defendants provide detainees with mats and blankets after 12 hours. Defendants appeal, alleging that the district court misapprehended the standard set forth in Bell v. Wolfish , 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and that the order was too rigid and burdensome. Plaintiffs also appeal, alleging that the district court should have ordered Defendants to provide the detainees with beds and mattresses, allow them access to showers, and deliver adequate medical care through medical professionals. We hold the district court did not abuse its discretion and properly applied precedent such that neither side has shown that the limited preliminary injunction is illogical, implausible, or without support in the record. United States v. Hinkson , 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

I. BACKGROUND

Plaintiffs filed this action in the United States District Court for Arizona on behalf of detainees confined in U.S. Customs and Border Protection Facilities within the Tucson Sector of the U.S. Border Patrol. The Border Patrol's mission is to detect and prevent the entry of certain individuals—including terrorists, unauthorized aliens, drug smugglers, and other criminals—into the United States between ports of entry. The Tucson Sector patrols 262 miles of the United States-Mexico border in southern Arizona, and, according to Defendants, in fiscal year 2016, "apprehended 64,891 individuals, the second highest of any Border Patrol sectors." The number of individuals apprehended in the Tucson Sector varies widely. Defendants represent that between 2009 and 2016, apprehensions each month ranged "from a high of 31,432 in March 2009, to a low of 4,071 in July 2015."

When a Border Patrol agent apprehends an individual, the person is taken to one of eight stations in the Tucson Sector. At the station, the Border Patrol processes the detainee, ascertaining the individual's identity and immigration and criminal history. The individual is then repatriated, transferred into the custody of another agency, referred for prosecution in accordance with the law or, in rare circumstances, released.

Plaintiffs alleged that the conditions in the stations were deplorable and that it took up to three days for individuals to be processed before transfer. Plaintiffs alleged that:

detainees are packed into overcrowded and filthy holding cells, stripped of outer layers of clothing, and forced to endure brutally cold temperatures. They are denied beds, bedding, and sleep. They are deprived of basic sanitation and hygiene items like soap, sufficient toilet paper, sanitary napkins, diapers, and showers.

And they are forced to go without adequate food, water, medicine, and medical care.

In the fall of 2016, the district court certified the case as a class action. Plaintiffs then sought a preliminary injunction.

II. THE DISTRICT COURT’S ORDERS

A. The Standards for Reviewing Conditions of Confinement

After setting forth the appropriate standards for issuing a mandatory preliminary injunction, the district court considered the standards for reviewing conditions of confinement. It first noted that when the government takes a person into custody, it must provide for the person's "basic human needs—e.g. food, clothing, shelter, medical care, and reasonable safety." DeShaney v. Winnebago Cnty. Dep't of Soc. Servs. , 489 U.S. 189, 199–200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) ; see also Farmer v. Brennan , 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

Citing Bell v. Wolfish , 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), among other cases, the district court concluded that when evaluating the constitutionality of pretrial detention conditions, it had to determine whether the conditions amounted to punishment. Citing Demery v. Arpaio , 378 F.3d 1020, 1030 (9th Cir. 2004), the district court explained that "[t]o constitute punishment, the governmental action must cause harm or disability that either significantly exceeds or is independent of the inherent discomforts of confinement." The court noted that even in the absence of evidence of express intent, it may infer an intent to punish "if the restriction or condition is not reasonably related to a legitimate governmental objective or is excessive in relation to the legitimate governmental objective." See Pierce v. Cnty. of Orange , 526 F.3d 1190, 1205 (9th Cir. 2008).

The district court noted that the Supreme Court held that "[m]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted and pretrial detainees." Bell , 441 U.S. at 546, 99 S.Ct. 1861. Indeed, the Supreme Court commented that "in the absence of substantial evidence in the record to indicate that officials have exaggerated their responses to these conditions, courts should ordinarily defer to their expert judgment in such matters." Id . at 540 n.23, 99 S.Ct. 1861 (quoting Pell v. Procunier , 417 U.S. 817, 827, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) ).

Based on these cases, the district court opined that a condition of confinement "violates the Fifth and Fourteenth Amendments if it imposes some harm to the detainee that significantly exceeds or is independent of the inherent discomforts of confinement and is not reasonably related to a legitimate governmental objective or is excessive in relation to the legitimate governmental objective." See Kingsley v. Hendrickson , ––– U.S. ––––, 135 S.Ct. 2466, 2473–74, 192 L.Ed.2d 416 (2015). This led the court to reason that decisions defining the constitutional rights of prisoners establish a floor for Plaintiffs' constitutional rights. See Padilla v. Yoo , 678 F.3d 748, 759 (9th Cir. 2012). The district court concluded that it could presume Plaintiffs were being subjected to punishment "if they are confined in conditions identical to, similar to, or more restrictive than those under which the criminally convicted are held." See Sharp v. Weston , 233 F.3d 1166, 1172–73 (9th Cir. 2000).

The district court then observed:

This is precisely the case here. Assistant Chief Patrol Agent for the Tucson Sector, George Allen, admitted, when this Court asked him to compare the conditions of confinement at Tucson Sector Border Patrol stations with those afforded criminal detainees at the Santa Cruz County jail, that in jail, detainees have a bed, with blankets, clean clothing, showers, toothbrushes and toothpaste, warm meals, and an opportunity for uninterrupted sleep. Likewise, the conditions of confinement ... improve once they are transferred from Border Patrol holding cells to detention centers operated by the United States Marshals.

The district court recognized that, in assessing the constitutionality of the conditions of confinement in the Border Patrol stations, due consideration had to be given to the nature, purpose and duration of an individual's time in the station. The stations are 24-hour operations where many detainees arrive in the evening and at night. The holding rooms are not designed for sleeping and have no beds. "Defendants assert[ed] that providing sleeping facilities and turning off lights would require structural changes at the facilities, create safety risks, and impede its purpose to provide 24-7 immigration processing." Defendants explained that when a detainee...