Ochoa v. Kolitwenzew, Case No. 20-cv-2135

• Court: United States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
• Writing for the Court: SUE E. MYERSCOUGH, U.S. District Judge
• Citation: 464 F.Supp.3d 972
• Docket Number: Case No. 20-cv-2135
• Decision Date: 02 June 2020
• Parties: Olivero OCHOA, Petitioner, v. Chad KOLITWENZEW, Respondent, United States of America, Interested Party.

464 F.Supp.3d 972

Olivero OCHOA, Petitioner,
v.
Chad KOLITWENZEW, Respondent,

United States of America, Interested Party.

Case No. 20-cv-2135

United States District Court, C.D. Illinois.

Signed June 02, 2020

464 F.Supp.3d 975

Mark Michael Fleming, Ruben N. Loyo, National Immigrant Justice Center, Mara Easterbrook Klebaner, White & Case LLP, Chicago, IL, for Petitioner.

James R. Rowe, II, Nancy Ann Nicholson, Kankakee County States Attorney, Kankakee, IL, for Respondent.

John David Hoelzer, W. Scott Simpson, United States Attorney's Office, Springfield, IL, for Interested Party.

OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

Before the Court is Petitioner Olivero Ochoa's Emergency Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 ("Petition") (Doc. 1). Petitioner seeks immediate release from civil immigration detention, arguing his current conditions of confinement violate his Fifth Amendment rights under the Due Process clause in light of the COVID-19 pandemic, his heightened risk of serious illness and death from COVID-19 because of his underlying health issues, and the Respondent's and the Government's insufficient response. Petitioner also argues that his prolonged mandatory detention without an individualized bond hearing violates his Due Process rights.

The Court held a hearing last week on Thursday, May 28, 2020, regarding the merits of Petitioner's Petition. For the reasons stated at the hearing and below, Petitioner's Petition (Doc. 1) is GRANTED.

I. BACKGROUND

A. The COVID-19 Pandemic

Petitioner's request for release is based, in part, on the COVID-19 pandemic, the dangers of which are well-known to the parties and the general public. While the first known case of COVID-19 in the United States was only reported in late January, the virus has spread exponentially and there are now nearly 1.7 million known cases and over 100,000 known associated deaths in the United States alone. See Cases of Coronavirus Disease (COVID-19) in the U.S., CDC, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited May 28, 2020); United States Coronavirus Cases, Worldometers, https://www.worldometers.info/coronavirus/country/us/ (last visited May 28, 2020). In Illinois, there have been at least 115,000 positive cases and 5,000 deaths from COVID-19. See Coronavirus Disease 2019 (COVID-19) in Illinois Test

464 F.Supp.3d 976

Results, Ill. Dep't of Pub. Health, https://www.dph.illinois.gov/covid19 (last visited May 28, 2020). As of May 28, 2020, Kankakee County, where the JCDC is located, there have been at least 1,137 positive cases and 53 deaths. See Kankakee Cty. Health Dep't., Daily COVID-19 Update for Kankakee County (May 28, 2020), https://www.kankakeehealth.org/images/COVID-19_Daily_update_5.28.pdf (last visited May 28, 2020).

COVID-19 is particularly dangerous due to how easily it spreads, and the severity of the resulting illness. The U.S. Center for Disease Control (CDC) reports that COVID-19 appears to spread from person-to-person, mainly through respiratory droplets produced when an infected person coughs, sneezes, or talks. Coronavirus Disease 2019 Basics (May 24, 2020) https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Coronavirus-Disease-2019-Basics (last visited May 28, 2020). The virus spreads very easily through what is called "community spread." Id. While infected individuals are thought to be most contagious when they are showing symptoms, the virus also appears to be spread by asymptomatic individuals. Id.; see also Transmission, CDC (May 12, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html#Transmission (last visited May 28, 2020) ("The onset and duration of viral shedding and the period of infectiousness for COVID-19 are not yet known."). "[T]hose who contract the virus may be asymptomatic for days or even for the entire duration of the infection but can still transmit the virus to others, making it more challenging to readily identify infected individuals and respond with necessary precautions." Mays v. Dart, No. 20 C 2134, 456 F.Supp.3d 966, 976 (N.D. Ill. Apr. 27, 2020).

Symptoms of COVID-19 vary greatly between individuals. Symptoms generally appear two to fourteen days after exposure. Symptoms of Coronavirus, CDC (May 13, 2020) https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited May 28, 2020). Some individuals appear to show no symptoms, while other individuals will develop cough, shortness of breath or difficulty breathing, fever, chills, repeated shaking with chills, muscle pain, headache, sore throat, or a new loss of taste or smell. Id.

The symptoms can also lead to serious illness or death. Id. While COVID-19 can cause death or serious illness in anyone, certain medical conditions make an individual at a higher risk. Relevant here, individuals with asthma are at an increased risk of death or serious illness. See Groups at a Higher Risk for Severe Illness, CDC (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last visited May 28, 2020).

There is currently no cure and no vaccine for COVID-19. The only way to prevent the virus is to prevent it from spreading. In addition to frequent handwashing, the CDC recommends "social distancing" or "physical distancing" from others by maintaining a distance of at least 6 feet away from other people, avoiding gathering in groups, and staying out of crowded places. Prevent Getting Sick, CDC (April 24, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last visited May 28, 2020). Additionally, the CDC recommends face masks be worn at all times in settings where social distancing is not possible. Id.

Congregate living situations, including jail facilities like JCDC, exacerbate the risk of infections spreading. This reality has already played out at many congregate settings across the county. See, e.g., Mays v. Dart, No. 20 C 2134, 456 F.Supp.3d 966, 1002-03 (N.D. Ill. Apr. 27, 2020) (addressing

464 F.Supp.3d 977

a conditions of confinement claim brought by pre-trial detainees at the Cook County Jail and the challenges of containing the virus in a jail and ordering further injunctive relief). As of May 23, 2020, ICE reports a total of 1,327 detainees that have tested positive for COVID-19 out of 2,620 detainees tested. ICE Guidance on COVID-19: Confirmed Cases, ICE, https://www.ice.gov/coronavirus (last accessed May 28, 2020). In the Pulaski County Detention Center in Ullin, IL, 29 ICE detainees have tested positive. Id.

B. Petitioner's Conditions of Confinement During the COVID-19 Pandemic

Petitioner is being detained by the U.S. Immigration and Customs Enforcement (ICE) at the Jerome Combs Detention Center (JCDC) in Kankakee, Illinois. In response to the COVID-19 pandemic, Respondent Warden Kolitwenzew affirms that a number of additional precautions have been put in place. As the Government reports, JCDC has not yet had any detainee or staff member test positive for COVID-19. Resp., Declaration of Chad Kolitwenzew (Kolitwenzew Dec.), ¶ 9 (Doc. 10-1). Respondent Warden Kolitwenzew's Declaration outlines the policies in place at JCDC, many of which he states have been in effect since on or before March 9, 2020, and comply with the CDC's recommendations. These measures include screening detainees and staff who enter the facility. Kolitwenzew Dec. at ¶ 13(C). The last new ICE detainee entered JCDC on April 3, 2020. Kolitwenzew Dec. at ¶ 13(B)(2). The screening includes taking the detainee's temperature and other vitals and housing all detainees separately from the general population for five to fourteen days. Kolitwenzew Dec. at ¶ 13(C). While Respondent claims no detainee has developed flu-like symptoms, if one did, he would be isolated in a single cell. Kolitwenzew Dec. at ¶ 13(B)(3). Respondent also states that "the JCDC staff has tested detainees for the presence of the COVID-19 virus, and all tests have come back negative." Kolitwenzew Dec. ¶ 9.

Respondent also states that JCDC has increased the frequency of sanitation procedures and has provided sanitation supplies to detainees. Kolitwenzew Dec. at ¶ 13(D). JCDC conducts a disinfection routine three times a day, which includes door handles, toilets, showers, and tables. Id. JCDC staff are also provided with soap, sanitizing supplies, and masks. Id. Respondent also states that JCDC has educated detainees regarding the best practices they can employ to lower their risk of exposure to COVID-19. Id.

Respondent states that JCDC medical personnel wear masks and visit the ICE detainee housing unit twice a day to check on detainees for COVID-19 symptoms, including temperature checks of each detainee twice a day. Kolitwenzew Dec. at ¶ 13(G). Respondent also states that correctional staff visit the unit every 25 minutes and look for possible COVID-19 symptoms. Id.

Respondent reports that while JCDC is a 450-bed facility, as of May 25, 2020, the total detainee population was only 313. Kolitwenzew Dec. ¶ 3. The ICE detainees are housed separately from other detainees, and there are currently 48 male ICE detainees. Id....