Mohammed S. v. Tritten

• Decision Date: 28 April 2020
• Docket Number: Case No. 20-cv-793 (NEB/ECW)
• Parties: MOHAMMED S., et al., Petitioners, v. LESLIE TRITTEN, in her official capacity as Field Office Director, Minnesota Field Office of U.S. Immigration & Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; US. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; WILLIAM P. BARR, in his official capacity as Attorney General, U.S. Department of Justice; and JOEL BROTT, in his official capacity as Sheriff, Sherburne County, Respondents.
• Court: U.S. District Court — District of Minnesota

MOHAMMED S., et al., Petitioners, v. LESLIE TRITTEN, in her official capacity as Field Office Director, Minnesota Field Office of U.S. Immigration & Customs Enforcement;

MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement;

US. IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security;

WILLIAM P. BARR, in his official capacity as Attorney General, U.S. Department of Justice;

and JOEL BROTT, in his official capacity as Sheriff, Sherburne County, Respondents.

Case No. 20-cv-793 (NEB/ECW)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

April 28, 2020

REPORT AND RECOMMENDATION

This matter is before the Court on Petitioners' Motion for Temporary Restraining Order or Preliminary Injunction (Dkt. 43) ("Motion"). Petitioners move pursuant to Federal Rule of Civil Procedure 65(a) and (b) for a temporary restraining order ("TRO") or, in the alternative, for a preliminary injunction requiring Respondents to release Petitioners from their present detention at the Sherburne County Jail to their homes under such individually appropriate terms and conditions as will reasonably assure their future appearance in any immigration proceeding. The case has been referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. A hearing on the Motion was held on April 22, 2020. Frederick J. Goetz, appointed pursuant to 18 U.S.C. § 3006A, appeared on behalf of Petitioners. David Fuller, Assistant United States Attorney, appeared on behalf of Respondent The U.S. Immigration & Customs Enforcement ("ICE" or "Federal Respondent"). Timothy Sime, Sherburne County Attorney's Office, appeared on behalf of Joel Brott, in his official capacity as Sheriff, Sherburne County ("County Respondent"). William E. Manske appeared on behalf of Amicus, The Advocates for Human Rights. Final written submissions from the parties were completed on April 24, 2020. For the reasons discussed below, the Court recommends that the Motion be denied without prejudice.

I. BACKGROUND

A. The COVID-19 Pandemic

COVID-19, the disease caused by the novel coronavirus SARS-CoV-2, was first reported in Wuhan, China in December 2019. (Dkt. 46-1 ¶ 6.) As of April 7, 2020, COVID-19 has become a global pandemic with at least 1,360,039 cases and 75,972 deaths reported in 183 countries. (Dkt. 46-1 ¶ 7.) As of April 7, 2020, there were 368,289 cases and 10,989 deaths attributed to COVID-19 in the United States, and Minnesota had 986 confirmed cases with 29 deaths due to the pathogen. (Dkt. 46-1 ¶ 7.) Within a week, Minnesota saw an increase to 1,809 confirmed cases of COVID-19 and 87 deaths. See MN Dept. of Health, Situation Update for Coronavirus Disease 2019(COVID-19), (last visited April 15, 2019), https://www.health.state.mn.us/diseases/coronavirus/situation.html. Of the total Minnesota cases, 445 required hospitalization. (Id.) Sherburne County had had 11 positive cases with no deaths. Id. (see cases by County of Residence). Researchers have recently concluded that "[i]f a county has detected only one case of COVID-19, there is a 51% chance that there is already a growing outbreak underway." (Dkt. 46-3 at 2.) As of the date of this Report and Recommendation, there are 4,181 confirmed positive cases with 301 deaths in Minnesota, and Sherburne County has 19 confirmed cases with no deaths. MN Dept. of Health, Situation Update for Coronavirus Disease 2019 (COVID-19), (last visited April 28, 2019), https://www.health.state.mn.us/diseases/coronavirus/ situation.html.

Individuals infected with COVID-19 exhibit a range of symptoms including those with no illness at all (asymptomatic COVID-19) to those with a debilitating chronic cough, shortness of breath, fever, and fatigue. (Dkt. 46-1 ¶ 11.) Pneumonia is the major cause of death. (Dkt. 46-1 ¶ 7.) A patient may suffer from these symptoms for a matter of days to several weeks. (Dkt. 46-1 ¶ 11.) When the lungs are involved (pneumonia), management may necessitate transfer to intensive care with intubation and supplemental oxygen. (Dkt. 46-1 ¶ 11.) Those requiring intensive care are at greatest risk of dying. (Dkt. 46-1 ¶ 11.) There is currently no vaccine nor valid medical therapy other than supportive care for the treatment COVID-19 infections. (Dkt. 46-1 ¶ 8.)

According to Petitioners' expert, Phillip K. Peterson, M.D., a Board Certified Internist and Infectious Diseases Specialist, individuals with the following conditions are at risk for severe illness or death if they contract COVID-19:

• Moderate to severe asthma;

• Chronic heart disease;

• Lung disease;

• Liver disease;

• Chronic kidney disease and those who are undergoing dialysis;

• Hypertension (high blood pressure);

• Anxiety disorder;

• Diabetes;

• Severe obesity;

• Autoimmune deficiencies and conditions that can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation;

• Individuals over 60 years old; and/or

• Individuals who are under chronic stress, which is known to impair immunity and increase risk of infection, theoretically including severe COVID-19.

(Dkt. 46-1 ¶ 10.)

According to The Centers for Disease Control and Prevention ("the CDC"), based on available information, individuals with the following conditions or living in the following circumstances are at high risk for severe illness from COVID-19:

• People 65 years and older;

• People who live in a nursing home or long-term care facility;

• People of all ages with underlying medical conditions, particularly if not well controlled, including:

? People with chronic lung disease or moderate to severe asthma;? People who have serious heart conditions;

? People who are immunocompromised, where many conditions can cause a person to be immunocompromised, including 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;

? People with severe obesity (body mass index ("BMI") of 40 or higher);

? People with diabetes;

? People with chronic kidney disease undergoing dialysis; and

? People with liver disease.

See Ctrs. for Disease Control & Prevention, People Who Are at Higher Risk for Severe Illness (last visited Apr. 27, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.

COVID-19 is transmitted person-to-person by respiratory droplets or by touching contaminated surfaces. (Dkt. 46-1 ¶ 7.) One of the major challenges in stopping the spread of COVID-19 is that people with no symptoms can spread the virus to others. (Dkt. 46-1 ¶ 7; Dkt. 69-2 ¶ 4.)¹ Indeed, Federal Respondent, relying on the CDC, acknowledges that "[t]here is also evidence of asymptomatic transmission, in which an individual infected with COVID-19 is capable of spreading the virus to others beforeexhibiting symptoms." U.S. Imm., and Customs Enforc. ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020), (last visited April 27, 2020), https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf. "Thus, it is imperative to keep people separated from each other (sheltering-in-place) and to eliminate, as far as possible, congregate living circumstances." (Dkt. 46-1 ¶ 9.) The CDC has recommended that "[m]aintaining good social distance (about 6 feet) is very important in preventing the spread of COVID-19." See Ctrs. for Disease Control & Prevention, How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited Apr. 27, 2020). Petitioners' expert Dr. Peterson opined that distancing of 6 feet at all times is essential, and that it is now apparent that this may likely be inadequate because fine aerosols from asymptomatic people due to just breathing or talking can travel farther and infect surfaces that others could touch. (Dkt. 69-3 ¶ 5.) This is the rationale for the recent announcement by the CDC that people wear face masks where others are present. (Dkt. 69-3 ¶ 5.)

On March 13, 2020, Minnesota Governor Tim Walz issued Executive Order 20-01 declaring a peacetime emergency as a result of the COVID-19 pandemic. (Dkt. 46-5 at 1.) On March 15, 2020, Governor Walz issued Executive Order 20-02 ordering the temporary closure of public schools. (Dkt. 46-5 at 1.) On March 25, 2020, Governor Walz issued Executive Order 20-20, which directed Minnesotans to stay at home except for certain excepted activities and essential work. (Dkt. 46-5 at 1.) On April 8, 2020, Governor Walz issued Emergency Executive Order 20-33 extending the stay-at-homeorder and temporary closure of bars, restaurants, and other places of public accommodation until May 4, 2020. (Dkt. 46-5 at 2-3.)

B. ICE

There have been 317 confirmed cases of COVID-19 among those in ICE custody throughout the United States. See U.S. Imm., and Customs Enforc., ICE Guidance on COVID-19 (last visited April 27, 2020), https://www.ice.gov/coronavirus.

The CDC has recognized that because detention centers integrate custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting, they present unique challenges for the control of COVID-19. (Dkt. 46-19 at 2.) With respect to preventing the introduction and spread of COVID-19 in detention facilities, the CDC recommends that a number of steps be taken at such facilities including: restricting or suspending the transfers of detained persons and to subject any transfers to medical isolation to evaluate if COVID-19 testing is appropriate; quarantining all new inmates for 14 days before they enter into the general population; cleaning and disinfecting surfaces that are frequently touched multiple times per day, including the use of disinfectants effective against the virus; increasing the...