Savino v. Souza

• Decision Date: 08 April 2020
• Docket Number: CIVIL ACTION NO. 20-10617-WGY
• Citation: 453 F.Supp.3d 441
• Parties: Maria Alejandra Celimen SAVINO, Julio Cesar Medeiros Neves, and all those similarly situated, Petitioners, v. Steven J. SOUZA, Superintendent of Bristol County House of Corrections in his official capacity, Respondent.
• Court: U.S. District Court — District of Massachusetts

453 F.Supp.3d 441

Maria Alejandra Celimen SAVINO, Julio Cesar Medeiros Neves, and all those similarly situated, Petitioners,

v.Steven J. SOUZA, Superintendent of Bristol County House of Corrections in his official capacity, Respondent.

CIVIL ACTION NO. 20-10617-WGY

United States District Court, D. Massachusetts.

Filed April 8, 2020

Ivan Espinoza-Madrigal, Pro Hac Vice, Oren M. Sellstrom, Lawyers' Committee for Civil Rights and Economic Justice, Annaleigh E. Curtis, Gary B. Howell-Walton, John J. Butts, Lisa J. Pirozzolo, Rama S. Attreya, Vinita Ferrera, Wilmer Hale LLP, Felicia H. Ellsworth, Michael J. Brown, Nicole M.F. Dooley, Wilmer Cutler Pickering Hale and Dorr LLP, Oren N. Nimni, Boston, MA, Reena Parikh, Pro Hac Vice, Michael J. Wishnie, Yale Law School, Muneer I. Ahmad, Pro Hac Vice, Jerome N. Frank Legal Services Organization, Yale Law School, New Haven, CT, for Petitioners.

Michael P. Sady, Thomas E. Kanwit, United States Attorney's Office, Boston, MA, for Respondent.

MEMORANDUM & ORDER

YOUNG, D.J.

I. INTRODUCTION

This habeas petition reflects the petitioners' dire personal circumstances and legal grievances. Yet it also speaks to the shared anxieties of a world brought to its knees by the pandemic of the novel coronavirus, dubbed COVID-19. It reaches the Court at an especially grim moment.¹ The petitioners are civil immigration detainees who say they are held in tight quarters and unable to keep safe distance from others who may -- and with time, inevitably will -- carry the highly contagious virus. They demand release or implementation of social distancing and other hygienic practices recommended by infectious disease experts.

Pending before this Court are their petition for a writ of habeas corpus, their motion for class certification, and their motion for a preliminary injunction. The Court is not yet ready to rule on the underlying habeas petition or the motion for a preliminary injunction. Rather, the Court ALLOWS the motion for class certification, with slight modification, and takes this opportunity to explain its reasoning with respect to bail. For the health and safety of the petitioners -- as well as the other inmates, staff, and the public -- the Court will expeditiously consider bail for appropriate detainees.

A. Factual Background

The named petitioners are two of approximately 148 individuals (the "Detainees") detained by Immigration and Customs Enforcement ("ICE") on civil immigration charges and held at the Bristol County House of Corrections ("BCHOC") in North Dartmouth, Massachusetts. Pet. Writ Habeas Corpus ("Pet.") ¶ 1, ECF No. 1; Opp'n Mot. TRO ("Opp'n"), Ex. A, Aff. Sheriff Thomas H. Hodgson ("Hodgson Aff.") ¶ 6(o), ECF No. 26-1.² The Detainees are held in two on-site facilities: ninety-two are in a separate ICE facility called the C. Carlos Carreiro Immigration Detention Center ("Carreiro"), and the rest are housed in a portion of the BHCOC called "Unit B" together with non-immigration pre-trial detainees. Id.; Pet. ¶ 1; Opp'n 2.³

Since February, the respondent ("the government") asserts, the medical team and administration of BCHOC "have instituted strict protocols to keep inmates, detainees and staff safe and take all prudent measures to prevent exposure to the COVID- 19 infection." Hogdson Aff. ¶ 5. Entrance into the facilities by outsiders is now generally prohibited; attorneys, clergy, and staff are "medically screened prior to entrance by questions relating to COVID-19 symptoms and by body temperature assessment." Id. ¶ 6(a)-(d). Inmates and detainees who are over 60-years-old or are immuno-compromised "are being specially monitored." Id. ¶ 6(k). In addition:

All housing units are sanitized no less than three times per day. Fresh air is constantly circulated by opening windows and utilizing handler/vents throughout the day. All feeding is done inside the housing or cells and inmates do not congregate for meals in the main dining hall. Outside recreation is done as usual daily except that it is now done on split schedule to prevent close inmate-to-inmate contact.

Id. ¶ 6(f). According to BCHOC's medical director, Dr. Nicholas J. Rencricca, "we are doing all that we can to reduce the risk of a COVID-19 outbreak within BCHOC." Aff. Nicholas J. Rencricca, MD, PhD ¶ 24. As of April 8, 2020, "there have been no inmates or immigration detainees who have presented with, or have tested positive for, COVID-19" at BCHOC, though one "unit intake nurse tested positive for COVID-19" and she last showed up to work on March 24. Decl. Debra Jezard ¶ 8; Def.'s Input Apr. 8 List 1, ECF No. 58.

The Detainees dispute much of this. They allege, for instance, that "BCHOC facilities lack adequate soap, toilet paper, and medical resources and infrastructure to address the spread of infectious disease or to treat people most vulnerable to illness." Pet. ¶ 70. They also state that "[h]ygiene is ... unavailable and unavailing under the[ir] conditions," id. ¶ 6, and that they "are unaware of any meaningful safety measures enacted by Defendants since the inception of this crisis," id. ¶ 28. Their "confinement conditions are a tinderbox," the Detainees warn, "that once sparked will engulf the facility." Id. ¶ 29. Yet there are important aspects of the Detainees' allegations that are substantially undisputed. Chief among these is the challenge of social distancing in BCHOC.

The Centers for Disease Control and Prevention ("CDC") states that "COVID-19 spreads mainly among people who are in close contact (within about 6 feet) for a prolonged period," and therefore recommends that everyone practice "social distancing" -- even among those with no symptoms, since the virus can be spread by asymptomatic people. CDC, Social Distancing, Quarantine, and Isolation (reviewed Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html (last accessed Apr. 6, 2020). The CDC thus advises that everyone "[s]tay at least 6 feet (2 meters) from other people." Id. The CDC has issued guidance specifically for prisons and detention centers that beat the same drum. CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, at 4 (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf ("Although 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."); id. ("Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic).").

The Detainees assert that they "find it impossible to maintain the recommended distance of 6 feet from others" and they "must also share or touch objects used by others." Pet. ¶ 67. They specifically allege that their beds "are situated only 3 feet apart" and that "[m]eals are inadequate and eaten in close quarters." Pet. ¶ 68. Indeed, the government has provided the Court with photos of the sleeping quarters in the facility and this appears to be an accurate description.⁴ In one unit the "cell size" is listed as 30 feet by 10 feet (300 square feet), and the photo shows three bunk beds (sleeping six people) lining the wall. Other images supplied include a photo labeled "Bunk Area" that shows a large room packed with rows of bunk beds. None appears to enjoy anything close to six feet of isolation. One of the named petitioners, Mr. Neves, avers that he "is being held in the same room as 49 other people," that his "bed is too close to other people," and that he is "not able to engage in ‘social distancing.’ " TRO Mem., Ex. 8, Decl. Julio Cesar Medeiros Neves ¶¶ 4-6, ECF No. 12-8.

The COVID-19 global pandemic threatens all of us. Yet "[t]he combination of a dense and highly transient detained population presents unique challenges for ICE efforts to mitigate the risk of infection and transmission." Opp'n, Ex. 2, Memorandum from Enrique M. Lucero, ICE, to Detention Wardens & Superintendents 1 (Mar. 27, 2020), ECF No. 26-2. As the Supreme Judicial Court of Massachusetts recently explained in reference to statewide correctional facilities, including BCHOC, "correctional institutions face unique difficulties in keeping their populations safe during this pandemic." Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431, 436, 142 N.E.3d 525 (2020). Indeed, BCHOC's medical director acknowledged the obvious fact "that a prison setting poses particular challenges from an infectious disease standpoint," while asserting that "the risk of infection is tempered by the degree of control we have over access to the facility." Renricca Aff. ¶ 21.

The Detainees have provided affidavits from two physicians who have recently visited Detainees on site. Dr. Nathan Praschan of Massachusetts General Hospital states that "[t]he best-known methods of preventing infectious spread," such as "social distancing, frequent hand washing, and sanitation of surfaces ... are unavailable to ... [these] detainees, who sleep, eat, and recreate in extremely close quarters and do not have access to basic hygienic supplies." Decl. Dr. Nathan Praschan ¶ 9. Dr. Matthew Gartland of Brigham and Women's Hospital avers that "based on my own experience visiting Bristol County House of Corrections, I do not believe that ... [these] detainees, can be adequately protected from the virus that causes COVID-19. This is based on a lack of private sinks or showers and inadequate hand soap supplies, and hand sanitizers, as well as inadequate allowance for social distancing, screening for symptoms and exposure to the virus, testing of individuals with symptoms, and appropriate quarantine and isolation facilities." Decl. Dr. Matthew Gartland ¶ 16.

B. Procedural History

The Detainees filed a habeas...