Ruderman v. Kolitwenzew

• Citation: 459 F.Supp.3d 1121
• Decision Date: 12 May 2020
• Docket Number: Case No. 20-cv-2082
• Parties: Aleksey Arkadyevich RUDERMAN, Petitioner, v. Chad KOLITWENZEW, Respondent, United States of America, Interested Party.
• Court: United States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois

459 F.Supp.3d 1121

Aleksey Arkadyevich RUDERMAN, Petitioner,

v. Chad KOLITWENZEW, Respondent,United States of America, Interested Party.

Case No. 20-cv-2082

United States District Court, C.D. Illinois.

Signed May 12, 2020

Timothy M. Zimmerman, Gibson Dunn & Crutcher LLP, Denver, CO, for Petitioner.

Nancy Ann Nicholson, Kankakee County State's Attorney, Kankakee, IL, for Respondent.

ORDER AND OPINION

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

Now before the Court is Petitioner Aleksey Arkadyevich Ruderman's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1). On April 10, 2020, after initial briefing and a hearing, the Court ordered Petitioner released on bond.

Now, after considering further briefing from the parties on the merits, the Court now GRANTS Petitioner's Petition for Writ of Habeas Corpus (Doc. 1), and ORDERS Petitioner's continued release until the risk of the COVID-19 pandemic subsides. Further, the Court ORDERS Petitioner's release beyond the COVID-19 pandemic unless within 14 days of this order the Government obtains an order from an Immigration Judge, who has determined, after an individualized bond hearing in which the Government bears the burden of proof by clear and convincing evidence, that Petitioner's detention is necessary to prevent a risk of flight or a threat to public safety. The Court's previous conditions of bond shall remain in effect until the stay at home order in Wisconsin, Petitioner's state of residence, is lifted or 14 days after this order, whichever is later. However, this Order does not prevent the U.S. Department of Homeland Security or an Immigration Judge from imposing reasonable conditions of bond. Pursuant to the Government's request, the Parties are ORDERED to provide this Court with a status update in 21 days informing the Court whether further Court involvement will be needed regarding Petitioner's continued release during the COVID-19 pandemic.

I. BACKGROUND

A. The COVID-19 Pandemic

By now the details of the global COVID-19 pandemic 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 over 1,324,488 known cases and over 80,000 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 12, 2020); United States Coronavirus Cases, Worldometers, https://www.worldometers.info/coronavirus/country/us/ (last visited May 12, 2020). In Illinois, there have been at least 79,007 positive cases and 3,459 deaths from COVID-19. See Coronavirus Disease 2019 (COVID-19) in Illinois Test Results, Ill. Dep't of Pub. Health, https://www.dph.illinois.gov/covid19 (last visited May 12, 2020). Kankakee County, where the Jerome Combs Detention Center is located, there have been at least 557 positive cases and 30 deaths. Id. On March 30, 2020, shortly before this petition was filed, there were only 42 confirmed cases of COVID-19 and no associated deaths in Kankakee County. Pet. at 3 (Doc. 1).

In response to COVID-19, the President of the United States declared a national state of emergency on March 13, 2020. Illinois Governor JB Pritzker issued a disaster proclamation on March 9, 2020, regarding COVID-19 and has now extended a statewide stay-at-home order to May 29, 2020. See Coronavirus Disease 2019 (COVID-19) in Illinois Test Results, Ill. Dep't of Pub. Health, https://www.dph.illinois.gov/covid19 (last visited May 11, 2020). Additionally, Governor JB Pritzker has ordered every person over the age of 2 years old to wear a face covering anytime they are unable to maintain six feet from others. Id.

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 9, 2020) https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Coronavirus-Disease-2019-Basics (last visited May 9, 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 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html#Transmission (last visited May 9, 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 8, 2020) https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited May 9, 2020). Some individuals appear to show no symptoms, while others 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. In some individuals, however, the symptoms can lead to serious illness or death. Id.

Recent clinical evidence indicates that in persons who suffer severe symptoms, the virus may also cause damage to organs such as the heart, the liver, and the kidneys, as well as to organ systems such as the blood and immune systems. This damage is so extensive and severe that it may be enduring. Among other things, patients who suffer severe symptoms from COVID-19 end up having damage to the walls and air sacs of their lungs, leaving debris in the lungs and causing the walls of lung capillaries to thicken so that they are less able to transfer oxygen going forward. Indeed, studies of some recovered patients in China and Hong Kong indicate a declined lung function of 20% to 30% after recovery. Tianbing Wang, et al., Comorbidities and multi-organ injuries in the treatment of COVID-19, 395 Lancet 10228 (2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30558-4/fulltext; GW Hospital Uses Innovative VR Technology to Assess Its First COVID-19 Patient, Geo. Wash. Univ. Hosp., (Mar. 19, 2020), https://www.gwhospital.com/resources/podcasts/covid19-vr-technology (last visited May 9, 2020).

And, while anyone is at risk of serious illness or death from COVID-19, certain individuals with underlying medical risks face a significantly higher risk. Particularly relevant for this case, preliminary mortality rate analyses from a February 29, 2020 WHO-China Joint Mission Report indicated a mortality rate for individuals with hypertension

at 8.4% and 8.0% for chronic respiratory disease. Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Org., 12 (Feb. 29, 2020), https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19-finalreport.pdf; see

also Pet. Ex. 1, Declaration of Dr. Carlos Franco-Paredes at 2 (Doc. 1-1 at 1). (available online at https://nipnlg.org/PDFs/practitioners/practice_advisories/gen/20 20_21Mar_COVID19_Appe ndix_F.pdf).

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 9, 2020). Additionally, the CDC recommends face masks be worn at all times in settings where social distancing is not possible. Id.

Congregate settings, such as detention centers, present unique risks and challenges for controlling the spread of COVID-19. See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CDC (May 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html (last visited May 9, 2020); Dr. Anne Spaulding, Coronavirus and the Correctional Facility: for Correctional Staff Leadership (Mar. 9, 2020), https://www.ncchc.org/filebin/news/COVID_for_CF_Administrator s_3.9.2020.pdf ("A prison or jail is a self-contained environment, both those incarcerated and those who watch over them are at risk for airborne infections. Some make an analogy with a cruise ship."); Castillo v. Barr, No. CV2000605TJHAFMX, 449 F.Supp.3d 915, 921–23, (C.D. Cal. Mar. 27, 2020) ("[T]he Government cannot deny the fact that the risk of infection in immigration detention facilities – and jails – is particularly high if an asymptomatic guard, or other employee, enters a facility."). Maintaining social distancing is often not possible in a detention center without drastic population reductions where detainees inevitably share cells and common areas. See also, Pet. Ex. 4, Letter from Drs. Scott Allen and Josiah Rich to Congress at 4 (Mar. 19, 2020) (Doc. 1-1 at 50). The rapid spread of COVID-19 through detention center populations could lead to a "tinderbox scenario," where patient flow from detention centers overwhelms local hospital systems, causing a devastating effect on public health. Id. at 4 (Doc. 1-1 at 54).

In neighboring Cook County, Illinois, the danger has already manifested in a jail setting, with over 500 Cook...