Torres v. Milusnic, Case No.: CV 20-4450-CBM-PVC(x)

• Citation: 472 F.Supp.3d 713
• Decision Date: 14 July 2020
• Docket Number: Case No.: CV 20-4450-CBM-PVC(x)
• Parties: TORRES et al., Plaintiff-Petitioners, v. MILUSNIC et al., Defendant-Respondents.
• Court: U.S. District Court — Central District of California

472 F.Supp.3d 713

TORRES et al., Plaintiff-Petitioners,

v.MILUSNIC et al., Defendant-Respondents.

Case No.: CV 20-4450-CBM-PVC(x)

United States District Court, C.D. California.

Signed July 14, 2020

Naeun Rim, Shoshana E. Bannett, Jumin Lee, Oliver Rocos, Terry W. Bird, Dorothy Wolpert, James Stamper Threatt, Kate S. Shin, Bird Marella Boxer Wolpert Nessim Drooks Lincenberg and Rhow, Peter Bibring, Peter J. Eliasberg, ACLU Foundation of Southern California, Los Angeles, CA, Donald Specter, Sara Linda Norman, Prison Law Office, Berkeley, CA, for Plaintiff-Petitioners.

Chung Hae Han, Keith M. Staub, Paul Bartholomew Green, Damon A. Thayer, Jasmin Yang, AUSA - Office of US Attorney, Los Angeles, CA, for Defendant-Respondents.

ORDER RE: PLAINTIFF-PETITIONERS' MOTION FOR PRELIMINARY INJUNCTION, AND EX PARTE APPLICATION FOR PROVISIONAL CLASS CERTIFICATION

CONSUELO B. MARSHALL, UNITED STATES DISTRICT JUDGE

The matters before the Court are: (1) Plaintiff-Petitioners' Ex Parte Application for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction (Dkt. No. 18 ("TRO Application")); and (2) Plaintiff-Petitioners' Ex Parte Application for Provisional Class Certification (Dkt. No. 22 ("Application for Class Certification")). The matters are fully briefed.¹

After the July 7, 2020 hearing, the parties each filed a notice of non-opposition stating they did not object to converting the TRO Application to an expedited motion for preliminary injunction. (Dkt. Nos. 41, 42.) Accordingly, the TRO Application was converted to an expedited motion for preliminary injunction.²

I. BACKGROUND

Petitioners Yonnedil Carror Torres, Vincent Reed, Felix Samuel Garcia, Andre Brown, and Shawn Fears are federal inmates incarcerated at FCI Lompoc and USP Lompoc (collectively, "Lompoc") located in Santa Barbara, California. This action brought on behalf of "all current and future people in post-conviction custody at Lompoc" (Compl. ¶ 96), challenges the Director of the Bureau of Prisons ("BOP") and Warden of Lompoc's response during the COVID-19 pandemic. The Complaint asserts two causes of action: (1) Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment to the U.S. Constitution pursuant to 28 U.S.C. §§ 2241, 2243 ; (2) and Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment to the U.S. Constitution pursuant to U.S. Const., Amend. VIII ; 28 U.S.C. § 1331 ; 5 U.S.C. § 702, "Injunctive Relief Only."

Petitioners apply for a preliminary injunction requesting the Court to require (1) Respondents to expedite review and determination of eligibility of Lompoc inmates for home confinement and compassionate release, and (2) improved conditions for inmates remaining at Lompoc in light of COVID-19.³

II. STATEMENT OF THE LAW

A. Preliminary Injunction

The standard for issuing a preliminary injunction requires the parties seeking relief to show (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of injunctive relief, (3) the balance of equities is in their favor, and (4) injunctive relief is in the public interest. See Winter v. Nat. Res. Def. Council , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Under this standard, "serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1135 (9th Cir. 2011) (internal quotations omitted).

B. Class Certification

Federal Rule of Civil Procedure 23(a) requires that a proposed class satisfy the following four requirements for class certification: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed. R. Civ. P. 23(a). "A class action may be maintained if Rule 23(a) is satisfied and if ... the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2).

III. DISCUSSION

A. COVID-19

COVID-19 is a novel, highly contagious, and deadly virus. On March 4, 2020, California declared a state of emergency in response to COVID-19. On March 11, 2020, COVID-19 was declared a global pandemic by the World Health Organization. On March 13, 2020, the President of the United States declared a national emergency in response to COVID-19. Millions of confirmed cases of COVID-19 and hundreds of thousands of related deaths have been reported worldwide. The United States Center for Disease and Control Prevention ("CDC") reports that as of July 7, 2020, there have been 2,932,596 confirmed cases of COVID-19 and 130,133 related deaths in the United States, and 271,684 confirmed cases of COVID-19 and 6,337 related deaths have occurred in California.⁴

According to the CDC, COVID-19 spreads mainly among people who are in close contact (i.e., within approximately 6 feet) and therefore limiting close contact with others is the best way to reduce the spread of COVID-19.⁵ COVID-19 spreads when an infected person coughs

, sneezes, or talks, and droplets from their mouth or nose are launched into the air and land in the mouths or noses of people nearby, or are inhaled into the lungs. A person may contract COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or eyes.⁶ COVID-19 spreads very easily and sustainably between people and is spreading more efficiently than influenza.⁷ Anyone can contract COVID-19 and spread it to others.⁸ Recent studies indicate people who are infected with the novel coronavirus but do not have symptoms likely also play a role in the spread of COVID-19.⁹

The more closely a person interacts with others and the longer that interaction, the higher the risk of COVID-19 spread.¹⁰ Therefore, the CDC advises that maintaining social distance of approximately 6 feet "is very important in preventing the spread of COVID-19,"¹¹ and "is one of the best tools we have to avoid being exposed to this virus and slowing its spread."¹² Per the CDC, "[s]ocial distancing is especially important for people who are at higher risk of severe illness from COVID-19."¹³ Among adults, the risk of severe illness or death from COVID-19 increases with age.¹⁴ Additionally, individuals of any age who have serious underlying medical conditions, including individuals with chronic obstructive pulmonary disease

, serious heart conditions such as heart failure, coronary artery disease, or cardiomyopathies, Type 2 diabetes, chronic kidney disease, sickle cell disease, immunocompromised state from a solid organ transplant, and obesity (body mass index of 30 or higher) are at increased risk for severe illness or death from COVID-19.¹⁵ Individuals at any age might be at increased risk of severe illness from COVID-19 if they have the following conditions: asthma, cerebrovascular diseases, cystic fibrosis, hypertension or high blood pressure, immunocompromised state from blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines, neurologic conditions such as dementia, liver diseases, pregnancy, pulmonary fibrosis, thalassemia, Type 1 diabetes, or individuals who are smokers.¹⁶

B. Lompoc

FCI Lompoc is a low security prison. (Compl. ¶ 2; Engleman Decl. ¶ 5.) USP Lompoc is a medium security prison, with a separate minimum-security satellite camp. (Compl. ¶ 2; Engleman Decl. ¶ 5.) USP Lompoc has units physically divided into 2-man cells with walls and cell doors, some units have grills for doors, and each cell has a sink/water fountain and toilet. (Engleman Decl. ¶¶ 5-6.) FCI Lompoc and USP's satellite camp are structured as dormitories with community restrooms which include sinks, toilets and showers. (Cross Decl. ¶ 6.) Some areas of USP's satellite camp and FCI Lompoc have open configurations while other areas have 8-10 person rooms. (Id. )

As of July 7, 2020, 859 inmates at FCI Lompoc and 170 inmates at USP Lompoc have tested positive for COVID-19 or have been deemed "recovered."¹⁷ Four inmates at Lompoc have died from COVID-19.¹⁸ The designated capacity for Lompoc is 2,058,¹⁹ but as of June 3, 2020, there were 2,599 inmates at Lompoc. (Engleman Decl. ¶ 7.)²⁰

C. Petitioners

(1) Petitioner Carror-Torres

Petitioner Carror-Torres is 24 years old and resides at USP Lompoc. (Carror Decl. ¶ 4.) He was convicted for carjacking with serious bodily injury (sexual assault) and aiding and abetting a violent crime by carrying a firearm, sentenced to 20 years imprisonment, and projected to be released on August 7, 2023. (Engleman Decl. ¶¶ 8, 9, Ex. A.) Carror-Torres has suffered from chronic asthma

since he was a child. (Kiara Carror (hereinafter, "Carror") Decl. ¶ 2.)²¹

Carror-Torres's sister submitted a request for compassionate release on behalf of her brother to the Warden of Lompoc on May 11, 2020, but as of May 14, 2020 had not received a response. (Id. ¶ 11.)²² Carror-Torres's sister declares he would stay with her at her home in Kissimmee, Florida, if he is transferred to home confinement. (Id. ¶ 12.) Respondents contend Carror-Torres was not considered for priority placement on home confinement because of his underlying violent crime and sex offense conviction.

(2) Petitioner Brown

Petitioner Brown is 55 years old and incarcerated at USP Lompoc. (Wefald Decl. ¶ 1.) Brown has had a history of asthma

since childhood, is learning disabled and illiterate, has prostate cancer and will need chemotherapy or surgery in the future. (Id. ¶¶ 1, 6; Cross Decl. ¶ 12.) Brown was convicted of conspiracy to manufacture, distribute, and possess with intent to distribute phencyclidine (PCP), and illegally possess a listed chemical and distribution and...