Lucero-Gonzalez v. Kline, No. CV-20-00901-PHX-DJH (DMF)

• Decision Date: 02 June 2020
• Docket Number: No. CV-20-00901-PHX-DJH (DMF)
• Citation: 464 F.Supp.3d 1078
• Parties: Maria Guadalupe LUCERO-GONZALEZ, et al., Plaintiffs, v. Kris KLINE, et al., Defendants.
• Court: U.S. District Court — District of Arizona

464 F.Supp.3d 1078

Maria Guadalupe LUCERO-GONZALEZ, et al., Plaintiffs,

v.Kris KLINE, et al., Defendants.

No. CV-20-00901-PHX-DJH (DMF)

United States District Court, D. Arizona.

Signed June 2, 2020

Benjamin C. Calleros, Jean-Jacques Cabou, Margo Rose Casselman, Matthew Robert Koerner, Perkins Coie LLP, Phoenix, AZ, for Plaintiffs.

ORDER

Diane J. Humetewa, United States District Judge

Plaintiffs Maria Guadalupe Lucero-Gonzalez, Claudia Romero-Lorenzo, Tracy Ann Peuplie, James Tyler Ciecierski, and Marvin Lee Enos, who are confined in CoreCivic's Central Arizona Florence Correctional Complex (CAFCC), have filed, through counsel on behalf of themselves and all others similarly situated, a civil rights Complaint pursuant to 28 U.S.C. §§ 1331, 1346, 2201 - 02, and 2241 (Doc. 1). Before the Court is Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 2), which is fully briefed, and the Court has taken oral argument from the parties on the Motion.

I. Injunctive Relief Standard

"A preliminary injunction is ‘an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.’ " Lopez v. Brewer , 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citation omitted) ("[a] preliminary injunction is an extraordinary remedy never awarded as of right"). A plaintiff seeking a preliminary injunction must show that (1) s/he is likely to succeed on the merits, (2) is likely to suffer irreparable harm without an injunction, (3) the balance of equities tips in his or her favor, and (4) an injunction is in the public interest. Winter , 555 U.S. at 20, 129 S.Ct. 365. "But if a plaintiff can only show that there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff's favor,’ and the other two Winter factors are satisfied." Shell Offshore, Inc. v. Greenpeace, Inc. , 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1135 (9th Cir. 2011) ). Under this serious questions variant of the Winter test, "[t]he elements ... must be balanced, so that a stronger showing of one element may offset a weaker showing of another." Lopez , 680 F.3d at 1072.

Regardless of which standard applies, the movant "has the burden of proof on each element of the test." See Envtl. Council of Sacramento v. Slater , 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a mandatory preliminary injunction, which should not be granted "unless the facts and law clearly favor the plaintiff." Comm. of Cent. Am. Refugees v. INS , 795 F.2d 1434, 1441 (9th Cir. 1986) (citation omitted).

The Prison Litigation Reform Act imposes additional requirements on prisoner litigants who seek preliminary injunctive relief against prison officials and requires that any injunctive relief be narrowly drawn and the least intrusive means necessary to correct the harm. 18 U.S.C. § 3626(a)(2) ; see Gilmore v. People of the State of Cal. , 220 F.3d 987, 999 (9th Cir. 2000).

II. Motion for Injunctive Relief

Put broadly, Plaintiffs allege in their Complaint that Defendants have violated their Fifth or Eighth Amendment rights by placing them at unconstitutional risk from exposure to COVID-19. In their Motion, Plaintiffs seek the appointment of a Rule 706 expert¹ to inspect CAFCC's facility in order "to determine whether Defendants have implemented consistent social (or physical) distancing, novel coronavirus testing procedures, and hygienic practices sufficient to reasonably protect Plaintiffs and Class Members from contracting COVID-19 while in Defendants’ custody." (Doc. 2-1 at 1-2). If the expert determines that Plaintiffs are at unreasonable risk from contracting COVID-19, then the expert shall submit "recommendations as to how such practices should be achieved and within what approximate timeline." (Id. at 2). Thereafter, Defendants would be required to "begin implementing the expert's recommendations immediately," "provide weekly updates to Plaintiffs’ counsel and this Court on their progress," and, absent good cause, "complete the implementation of the recommendations within the timeline established by the expert." (Id. ).

III. Discussion

A. COVID-19

COVID-19, a disease caused by a novel strain of coronavirus (SARS-CoV-2), was declared by the World Health Organization as a global pandemic on March 11, 2020. As of June 1, 2020, 1,817,785 individuals have been confirmed as positive for COVID-19 in the United States, of which 105,644 have died.² In Arizona, 21,264 cases have been identified, of which 943 have died.³

The United States Department of Health and Human Services Centers for Disease Control and Prevention ("CDC") reports that individuals who contract and transmit COVID-19 experience symptoms that range from negligible, with some individuals remaining entirely asymptomatic, to mild, such as fever, coughing, and difficulty breathing, to severe, including acute respiratory distress, severe pneumonia, septic shock, and multi-organ failure, or even death.⁴ The CDC estimates that serious illness or death occurs in 16% of all cases.⁵ Those at high-risk of suffering severe illness or death from COVID-19 include individuals who are 65 years and older, or individuals of any age with underlying medical conditions including chronic lung disease, moderate to severe asthma, a serious heart condition, a weakened immune system, severe obesity, diabetes, chronic kidney disease, or liver disease.⁶

The virus that causes COVID-19 "is thought to spread mainly through close contact from person-to-person in respiratory droplets from someone who is infected."⁷ The incubation period for COVID-19 extends 14 days on average, with a median time of 4-5 days from exposure to symptoms onset.⁸ The CDC recommends that to avoid exposure and transmission, the public should maintain a physical distance of at least six feet from others, wear cloth face covers, frequently wash hands or use hand sanitizer, and disinfect frequently touched surfaces.⁹ High-risk individuals should take additional "special precautions," such as continue active treatment of their underlying medical conditions, obtain vaccinations against other diseases like influenza and pneumococcal illness, stay home, and remain away from others "as much as possible."¹⁰

B. Detention Facility COVID-19 Guidance

On March 23, 2020, the CDC issued an "Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities" ("CDC Guidance")¹¹ which "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." (CDC Guidance at 2.) The guidance reports there is a heightened risk of transmission of COVID-19 to and among individuals within detention facilities due to, among other things, the number of sources which can introduce them into a facility's population, including detention staff, visitors, contractors, vendors, legal representatives, court staff, and new detainees; the congregate environment in which detainees "live, work, eat, study, and recreate"; and limited medical isolation options, hygiene supplies, and dissemination of accurate information among detainees. (CDC Guidance at 2.)¹² For those reasons, the guidance recommends that detention facilities implement specific measures to prepare for potential transmission of COVID-19, to prevent the spread of COVID-19, and to manage confirmed and suspected COVID-19 cases to prevent further transmission and provide treatment.

The guidance states 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." (CDC Guidance at 4.) It recommends implementing social distancing strategies to increase the physical space between detained persons "(ideally 6 feet between all individuals, regardless of the presence of symptoms)," such as increasing space between individuals in cells, increasing space between individuals in lines and waiting areas; choosing recreation spaces where individuals can spread out and staggering time in those spaces; staggering meals and rearrange seating in the dining hall so that there is more space between individuals; providing meals inside housing units or cells; limiting the size of group activities and increasing space between individuals during group activities. (Id. at 4, 11.) It further recommends that facilities should house quarantined individuals who have had close contact with a COVID-19 case, or individuals in medical isolation who are suspected or confirmed positive with COVID-19, in order of preference, separately in single cells or as a cohort, although "[c]ohorting should only be practiced if there are no other available options." (Id. at 15-20.)¹³ "If cohorting is unavoidable, [facilities should] make all possible accommodations to reduce exposure risk for the higher-risk individuals." (Id. at 19.)

CDC Guidance also recommends that facilities implement intensified cleaning and disinfecting procedures and provide education on, and reinforcement of, hygiene practices. (CDC Guidance at 9-10.) Facilities should, among other things, provide adequate supplies to support intensified cleaning and disinfection practices, and "continually restock hygiene supplies throughout the facility." Facilities should provide detainees and staff no-cost access to soap, running water,...