Malam v. Adducci

• Decision Date: 31 July 2020
• Docket Number: Case No. 20-10829
• Citation: 475 F.Supp.3d 721
• Parties: Janet MALAM, Petitioner-Plaintiff, and Qaid Alhalmi, et al., Plaintiff-Intervenors, v. Rebecca ADDUCCI, et al., Respondent-Defendants.
• Court: U.S. District Court — Eastern District of Michigan

475 F.Supp.3d 721

Janet MALAM, Petitioner-Plaintiff,

and

Qaid Alhalmi, et al., Plaintiff-Intervenors,

v.Rebecca ADDUCCI, et al., Respondent-Defendants.

Case No. 20-10829

United States District Court, E.D. Michigan, Southern Division.

Signed July 31, 2020

Rosana Santana Moura Garbacik, Andrew D. Stacer, Stacer, PLC, Plymouth, MI, for Petitioner-Plaintiff.

Daniel S. Korobkin, Monica Cesilia Andrade, American Civil Liberties Union Fund of Michigan, Detroit, MI, Jeannie S. Rhee, Stanton Lawyer, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, Jonathan Silberstein-Loeb, Katharine Warren Gadsden, Oleg Shik, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Miriam J. Aukerman, American Civil Liberties Union of Michigan West Michigan Regional Office, Grand Rapids, MI, for Plaintiff-Intervenor Ruby Briselda Escobar.

Daniel S. Korobkin, Monica Cesilia Andrade, American Civil Liberties Union Fund of Michigan, Detroit, MI, Jeannie S. Rhee, Stanton Lawyer, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, Jonathan Silberstein-Loeb, Katharine Warren Gadsden, Oleg Shik, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Miriam J. Aukerman, American Civil Liberties Union of Michigan West Michigan Regional Office, Grand Rapids, MI, My Khanh Ngo, American Civil Liberties Union Foundation, San Francisco, CA, for Plaintiff-Intervenor Amer Toma.

Katharine Warren Gadsden, Oleg Shik, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Stanton Lawyer, Jeannie S. Rhee, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, for Plaintiff-Intervenors Tomas Cardona Ramirez, Guo Yan Lin Castro, Rudy Sosa Carillo, Sergio Brito, Jose Mauricio Garcia Toledo, Emanuel Rosales Borboa, Damary Rodriguez Salabarria, Qaid Alhalmi, Min Dan Zhang, Baldemar Barajas Santoyo, Jose Gomez Santiz, Yohandry Ley Santana, Sergio Perez Pavon, Johanna Whernman, Lenche Krcoska, Waad Barash, William Whernman, Zaid Shaher Mohammad al-Araj, Ahammad Ali, Ziggy Marcus Garvie, Juan Guerrero Bernardez, Gan Jin, Tauqir Niazi, Pedro Quijada.

Katharine Warren Gadsden, Oleg Shik, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Jeannie S. Rhee, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, for Plaintiff-Intervenors Isaac Orta Vieyra, Julio Fernando Medina Euceda, Leonard Baroi.

Kevin Hirst, Office of Immigration Litigation, Washington, DC, Bradley Darling, U.S. Department of Justice, Jennifer L. Newby, U.S. Attorney, Detroit, MI, for Respondent-Defendants.

OPINION AND ORDER CERTIFYING GENERAL CLASS AND HABEAS LITIGATION GROUP [112]

JUDITH E. LEVY, United States District Judge

More than four months after the first confirmed case of COVID-19 in Michigan, the coronavirus pandemic continues to teach us about the importance and power of collective action. Many of the public health interventions—wearing masks, employing social distancing, and limiting gatherings—that are available to curb the spread of the disease succeed or fail in tandem with the degree of societal buy-in. One individual wearing a mask does little to reduce the pool of infection vectors in a population center; an entire town's commitment to mask-wearing can help control infection rates to reduce community spread, enable contact tracing, and ensure an adequate supply of healthcare for those in need.

As infections in Michigan continue to rise—prompting Governor Whitmer to order the use of masks both indoors and outdoors¹ and warn that the state may need to "dial back" its reopening to control the pandemic² —Plaintiffs seek to exercise another form of collective action—the class action—to protect themselves from COVID-19. They seek to do this, in part, because they allege that they cannot deploy the other methods of collective action available to those of us in the community.

Plaintiffs are all noncitizens subject to U.S. Immigration and Customs Enforcement ("ICE") custody in detention³ at the Calhoun County Correctional Facility. They move for the Court to certify a class of all noncitizens in civil immigration detention at the Calhoun County Correctional Facility and a subclass of all medically vulnerable detainees. Because Plaintiffs’ proposed class satisfies Rule 23 requirements for certification and Rule 23 factors counsel in favor of aggregate resolution for the proposed subclass’ habeas claims, the Court grants Plaintiffs’ motion.

BACKGROUND

On March 30, 2020, Petitioner Janet Malam filed an Emergency Petition for Writ of Habeas Corpus challenging her continued detention at the Calhoun County Correctional Facility. (ECF No. 1.) On April 3, 2020, the Court allowed Plaintiff-Intervenors Amer Toma and Ruby Briselda Escobar to intervene. (ECF No. 21.) On April 26, fifteen named Plaintiffs filed an amended class action complaint. (ECF No. 43.) On June 5, 2020, the Court granted Plaintiffs leave to amend their complaint and to add seven additional named Plaintiffs. (ECF No. 96.)

The Court has issued five preliminary injunctions in this case granting relief to thirteen civil detainees. (See ECF No. 33 (ordering Petitioner Malam's immediate release); ECF No. 41 (Plaintiff Toma); ECF No. 68 (Plaintiffs Alhalmi and Cardona Ramirez); ECF No. 90 (Plaintiffs Rodriguez Salabarria and Rosales Borboa); ECF No. 127 (Plaintiffs Barash, Krcoska, Perez Pavon, Ley Santana, Johanna Whernman, and William Whernman).) Separately, the Court granted a preliminary injunction to Petitioner Fawzi Zaya, a noncitizen who similarly was detained by ICE at the Calhoun County Correctional Facility. Zaya v. Adducci , No. 20-10921, 2020 WL 1903172 (E.D. Mich. Apr. 18, 2020). Petitioner Zaya raises the same claims and seeks the same relief as the proposed habeas litigation group here.

Plaintiffs’ second amended petition for writ of habeas corpus and complaint for declaratory and injunctive relief brings three counts. (ECF No. 97.) First, on behalf of all named Plaintiffs and the proposed class, Plaintiffs claim that "Defendants’ continued detention of Plaintiffs and the proposed class members under the current conditions violates their due process rights" under the Fifth Amendment. (ECF No. 97, PageID.3345.) Plaintiffs argue that

[t]he Fifth Amendment thus requires release of Plaintiffs and the class unless (a) the conditions of confinement are remedied to ensure their reasonable safety, including reduction of the population to bring density to a level that allows for social distancing; and (b) their detention during the pandemic is reasonably related to, and not excessive in relation to, the government's interest in ensuring their availability for removal.

(Id. at PageID.3346.)

Second, on behalf of thirteen named Plaintiffs and the proposed subclass, Plaintiffs claim that

[g]iven the substantial risk of serious illness or death from COVID-19, there are no conditions of confinement that would permit the safe detention (or redetention) of [thirteen named Plaintiffs] and the subclass, and their continued detention is not reasonably related to, and excessive in relation to, the government's interest in ensuring their availability for removal.

(ECF No. 97, PageID.3348.) Plaintiffs argue that "The Fifth Amendment thus requires release of [thirteen named Plaintiffs] and the subclass." (Id. )

Third, Plaintiffs claim that "[t]he removal of Plaintiffs Alhalmi, Baroi, Escobar, Ley Santana, Rodriguez Salabarria and Toma is not significantly likely in the reasonably foreseeable future." (Id. at PageID.3349.) Plaintiffs argue that "Plaintiffs’ detention is therefore not authorized by statute and they are entitled to immediate release under orders of supervision." (Id. )

Federal Rule of Civil Procedure 23(c)(1) provides that "[a]t an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action." Accordingly, on June 5, 2020, the Court established a case management plan in which it set deadlines for Plaintiffs’ motion for class certification. (ECF No. 96.) On June 14, 2020, Plaintiffs filed this motion to certify a class and subclass of noncitizen immigration detainees at the Calhoun County Correctional Facility. (ECF No. 112.) Defendants responded on June 26, 2020 (ECF No. 126), and Plaintiffs replied on July 5, 2020. (ECF No. 144.)

JURISDICTION

Plaintiffs bring three claims: first, on behalf of the proposed class, Plaintiffs argue that current conditions of confinement at the Calhoun County Correctional Facility are unconstitutionally punitive. Second, on behalf of the proposed subclass, Plaintiffs argue that no conditions of confinement can satisfy constitutional requirements with respect to medically vulnerable detainees. Third, on behalf of six named Plaintiffs, Plaintiffs argue that continued detention is unconstitutional where removal is not reasonably foreseeable. The Court finds that it has habeas jurisdiction over Plaintiffs’ second and third claims and federal question jurisdiction over Plaintiffs’ first claim.

The Court has previously addressed jurisdiction only with respect to the claim brought and relief sought by the proposed subclass. In six opinions granting release from detention through either a temporary restraining order or a preliminary injunction, the Court found that it had habeas jurisdiction over medically vulnerable detainees’ claim that continued confinement at the Calhoun County Correctional Facility was unconstitutionally punitive and that no conditions of confinement could remedy the constitutional defects. The Court held that where a Plaintiff argues "that no matter what steps are taken, due to [their] underlying serious health conditions, there is no communal holding facility where [they] could be incarcerated during the Covid-19 pandemic that would be constitutional," ... their claim "must ... be considered as a challenge to the continued validity of confinement itself." (ECF No. 23, PageID.542.) In Wilson v. Williams , the Sixth Circuit upheld habeas...