Savino v. Souza

• Decision Date: 12 May 2020
• Docket Number: CIVIL ACTION NO. 20-10617-WGY
• Citation: 459 F.Supp.3d 317
• Parties: Maria Alejandra Celimen SAVINO, Julio Cesar Medeiros Neves, and all those similarly situated, Plaintiffs-Petitioners, v. Steven J. SOUZA, Superintendent of Bristol County House of Correction in his official capacity, Defendant-Respondent.
• Court: U.S. District Court — District of Massachusetts

459 F.Supp.3d 317

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

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

CIVIL ACTION NO. 20-10617-WGY

United States District Court, D. Massachusetts.

Filed May 12, 2020

Ivan Espinoza-Madrigal, Pro Hac Vice, Oren N. Nimni, 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, Felicia H. Ellsworth, Michael J. Brown, Nicole M.F. Dooley, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, Muneer I. Ahmad, Pro Hac Vice, Jerome N. Frank Legal Services Organization, Yale Law School, Reena Parikh, Pro Hac Vice, Michael J. Wishnie, Yale Law School, New Haven, CT, for Plaintiffs-Petitioners.

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

MEMORANDUM OF DECISION

YOUNG, D.J.

I. INTRODUCTION

The Constitution dictates that the government reasonably safeguard those in its custody, for the power to incarcerate implies the duty to protect. How far does that duty go amidst the global pandemic of the COVID-19 virus? That is the enigma this Court, like others across the nation, has grappled with in this case. A class of civil immigration detainees held in the Bristol County House of Correction, citing this unparalleled health crisis, press this Court to release them from confinement in tight and allegedly unsanitary quarters. The government refuses to play ball.

The Court has matched the unusual health emergency with an unusual procedural maneuver. Before addressing the merits of the petition, the Court relied on its inherent authority expeditiously to review bail applications for all of the detainees in the class, one by one, and released almost a third of them to house arrest under strict conditions. These releases have meaningfully reduced the crowding at the detention center and, one hopes, hindered the virus’ spread. The Court then turned to the pending motion for a preliminary injunction and, after briefing and oral argument, preliminarily ordered the government (1) to test all detainees and staff who come into contact with them; and (2) not to admit any more detainees to this facility.¹ This memorandum lays out the Court's reasoning.

As explained more fully below, the Court reaches three essential conclusions. First, withholding this preliminary injunction would likely cause the detainees irreparable harm because some number of them would get seriously ill or die. Second, the government's response likely amounts to deliberate indifference to a substantial risk of serious harm to the detainees’ health. This deliberate indifference is proven by the government's near-blanket opposition to the release of detainees throughout the bail process (though it did somewhat reduce the population through limited bond releases and deportations), as well as by its minimal efforts at testing and contact tracing.

Third, the balance of the equities and the public interest weigh in favor of the injunction. In so finding, the Court notes that this injunction does not prohibit the government's (and the public's) two primary interests in enforcing the immigration laws -- deporting those unlawfully present and confining those who are dangerous or flight risks. Yet, to the extent it reduces the risk of an uncontainable outbreak in the facility, the injunction secures the safety of the detainees, the guards and other staff, their families, and ultimately the public at large. The scale thus tips lopsidedly toward the interim equitable relief ordered by the Court.

II. PROCEDURAL BACKGROUND

The named plaintiffs-petitioners are two of 148 individuals (the "Detainees") detained by Immigration and Customs Enforcement ("ICE") on civil immigration charges who, at the start of this litigation, were held at the Bristol County House of Correction ("BCHOC") in North Dartmouth, Massachusetts. Pet. Writ Habeas Corpus ("Pet.") ¶ 1, ECF No. 1; Opp'n Mot. Temporary Restraining Order ("Opp'n TRO"), Ex. A, Aff. Sheriff Thomas H. Hodgson ("Hodgson Aff.") ¶ 6(o), ECF No. 26-1. On March 27, 2020, the Detainees filed a purported class action suit alleging, as relevant here, that the conditions of their confinement violated their due process rights and seeking release. See generally Pet. The gravamen of the complaint was that the facility was simply too crowded to practice social distancing in accordance with ubiquitous medical advice, id. ¶¶ 67-68, and that the conditions were otherwise unhygienic, id. ¶ 70. The Detainees also filed a motion for class certification, ECF No. 13, and a motion for a temporary restraining order, ECF No. 14, which the Court converted into a motion for a preliminary injunction at the initial hearing held on March 30, 2020.²

At a hearing on April 2, 2020, the Court provisionally certified five subclasses, ECF No. 36, and later that day put together a list (using information from a spreadsheet helpfully provided by the respondent, or "the government") of twelve Detainees with no criminal history or pending criminal charges, ECF No. 38. The next morning, counsel for the government informed the Court that ICE would voluntarily release six of those individuals on Orders of Supervision. At a hearing that same day, the government told the Court that ICE would not voluntarily release anyone else. Tr. Hr'g (Apr. 3, 2020) 6:4-8, ECF No. 48. The Court ordered bail for three Detainees at that hearing and requested that the parties supply (jointly or separately) a list of fifty names to consider for bail. Id. at 8, 15-17. Neither party opted to select fifty candidates. On April 8, 2020, the Court certified the general class of presently incarcerated Detainees and explained the basis for its bail procedures. Savino v. Souza (Savino I ), 453 F. Supp. 3d 441, No. 20-10617-WGY (D. Mass. Apr. 8, 2020).

Over the next several weeks, the Court received briefing from the parties relating to each Detainee's criminal and medical histories, as well as other pertinent information, and assessed each one individually. True to its word, ICE systematically opposed bail for every Detainee after the initial six. For each group the Court considered, the government stated: "It is ICE's position, for the record, that release of none of the listed individuals is required for either their safety or the safety of the remaining civil detainee population at BCHOC." ECF Nos. 50, 58, 67, 75, 79, 80, 85, 88, 94, 102, 105, 111, 116.³ The Court ruled on the bail applications that were relatively clear cases -- whether granting or denying -- and took the rest under advisement.⁴ Between the filing of the case and the preliminary injunction, six Detainees were released by ICE on Orders of Supervision, forty-four were granted bail by this Court, fifteen were released on bond through the immigration courts, fifteen were (or were soon scheduled to be) deported, and five new individuals were added by ICE. Of the 148 Detainees held at BCHOC at the start of the litigation, there remained 80 after the Court's last bail order on May 5, 2020. ECF No. 147; Opp'n Mot. Prelim. Inj. ("Opp'n") 5, ECF No. 164; id., Ex. A, Third Decl. Steven Souza ("Third Souza Decl.") ¶ 9, ECF NO. 164-1.

The Court received briefing on the motion for a preliminary injunction. Pls.’ Suppl. Mem. Supp. Mot. Prelim. Inj. ("Pls.’ Suppl. Mem."), ECF No. 150; Opp'n. After a hearing held on May 7, 2020, the Court orally issued the preliminary injunction and explained its reasoning. ECF No. 168. This memorandum of decision further explicates the basis for the preliminary injunction. See Fed. R. Civ. P. 52(a).

III. THRESHOLD ISSUES

Before embarking on the preliminary injunction discussion, the Court briefly detours to address several threshold hurdles raised by the government. First, the government argues that the Detainees lack constitutional standing for this preliminary injunction. Opp'n 27-28. The Court disagrees for the reasons articulated in its prior opinion certifying the class. Savino I, 453 F.Supp.3d at 447–48, see also Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) ("It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.").

Second, the government argues that the Detainees cannot challenge the conditions of confinement in a habeas action, which is limited to challenges to the fact or duration of confinement. Opp'n 19-20 (quoting Jenkins v. Spaulding, No. 19-10078-MPK, 2019 WL 1228093 (D. Mass. Feb. 22, 2019) (Kelley, M.J.); Kane v. Winn, 319 F. Supp. 2d 162, 213-15 (D. Mass. 2004) ). Even were habeas actions so limited,⁵ the Detainees have styled their action as both a habeas petition under 28 U.S.C. § 2241 and a complaint seeking declaratory and injunctive relief. Pet. 1. That being so, a cause of action for equitable relief relating to their conditions of confinement is available wholly apart from habeas. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231-33 (10th Cir. 2005). Moreover, this preliminary injunction is not itself habeas relief, but rather "interim equitable relief [whose purpose] is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward." Trump v. International Refugee Assistance Project (IRAP ), ––– U.S. ––––, 137 S. Ct. 2080, 2087, 198 L.Ed.2d 643 (2017) (citing University of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) ). Thus, the Court does not see why this preliminary injunction must stick within habeas’ fact-of-confinement domain.⁶ "Once invoked, the scope of a district court's equitable powers ... is broad, for breadth and flexibility are inherent in equitable remedies." Brown v. Plata, 563...