Costa v. Bazron, Civil Action No. 19-3185 (RDM)

464 F.Supp.3d 132

Enzo COSTA, et al., Plaintiffs,

v.Barbara J. BAZRON, et al., Defendants.

Civil Action No. 19-3185 (RDM)

United States District Court, District of Columbia.

Signed May 24, 2020

John Arak Freedman, Tirzah S. Lollar, Arnold & Porter Kaye Scholer LLP, Margaret Hart, Kaitlin Rose Banner, Wash. Lawyers' Cmte for Civil Rights & Urb. Affairs, Michael Krevans Perloff, Arthur B. Spitzer, American Civil Liberties Union Foundation of the District of, Scott Michelman, Washington, DC, for Plaintiffs.

Micah Ian Bluming, Honey C. Morton, Robert A. DeBerardinis, Jr., Gavin Noyes Palmer, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

RANDOLPH D. MOSS, United States District Judge

Plaintiffs Enzo Costa, Vinitia Smith, and William Dunbar, three patients who are indefinitely and involuntarily committed to the District of Columbia's care and housed at Saint Elizabeths Hospital ("Saint Elizabeths" or the "Hospital"), bring this action on behalf of themselves and a putative class of similarly situated persons. Plaintiffs allege that the District, the Director of the D.C. Department of Behavioral Health, and the Chief Executive Officer of the Hospital have violated the constitutional rights of patients at Saint Elizabeths by failing to ensure that they are housed in safe conditions in the face of the ongoing COVID-19 pandemic and by failing to provide them with adequate mental health treatment during the pandemic. See Dkt. 50. They further allege that Defendants have continued to detain patients deemed "ready for discharge" in violation of the Americans with Disability Act ("ADA"), 42 U.S.C. § 12131 et seq. and the Constitution. Dkt. 87 at 6. On April 25, 2020, the Court granted Plaintiffs’ motion for a temporary restraining order ("TRO") in part, Dkt. 59, and ordered that Defendants adopt certain infectious disease control and prevention measures and that they provide periodic reports to the Court, Dkt. 60. The Court later extended the TRO and expanded it in two respects relating to infectious disease control and prevention. Dkt. 83. Plaintiffs now seek to convert the TRO into a preliminary injunction and request that the preliminary injunction also include relief relating to the Hospital's provision of mental health services and the discharge of patients. Dkt. 87. Defendants oppose the motion. Dkt. 90. For the reasons explained below, the Court will convert certain aspects of the TRO into a preliminary injunction but will deny Plaintiffs’ other requests for preliminary relief.

I. BACKGROUND

The Court has recounted much of the relevant factual background and procedural history at length in its earlier memorandum opinions, see Costa v. Bazron , 456 F.Supp.3d 126, 128–33, 2020 U.S. Dist. LEXIS 73944, at *2–14 (D.D.C. Apr. 25, 2020) (" Costa I "); Costa v. Bazron , 2020 WL 2410502 at *1, 2020 U.S. Dist. LEXIS 83565 at *2 (D.D.C. May 11, 2020) (" Costa II "), and will only summarize and add to that background as necessary for the pending motion.

Saint Elizabeths is the District of Columbia's "only public psychiatric facility for individuals with serious and persistent mental illness who need intensive inpatient care to support their recovery." Dkt. 50 at 7 (Am. Compl. ¶ 25). "The [H]ospital can support a census of 296 patients and has a workforce of 786 staff members." Dkt. 81 at 3. The named plaintiffs in this case are three patients indefinitely and involuntarily committed to the District of Columbia's care and housed at Saint Elizabeths. Id. at 6–7 (Am. Compl. ¶¶ 19–22). According to counsel for Defendants, each of the named plaintiffs was committed following a verdict of not guilty by reason of insanity, and each may be released only with a court order. See May 22, 2020 Hrg. Tr. (Rough at 38).

The COVID-19 pandemic is, by now, well-known to all. On March 20, 2020, Saint Elizabeths "identified" the first case of COVID-19 at the facility "but obtaining the ... test and the [test] results [for that patient] was delayed until April 1, 2020." Dkt. 81 at 3. On April 13, 2020, less than two weeks after the Hospital publicly reported the first case, it reported that "28 patients and 43 staff had tested positive for COVID-19," that "105 patients were in either isolation or quarantine," and that "four patients ha[d] died." Dkt. 36 at 3.

Within days of that public report,¹ Plaintiffs moved for a TRO, asserting that the rapid spread of the virus at the Hospital was caused by, among other things, Defendants "failure to implement CDC Guidance regarding testing of symptomatic individuals, medical isolation of symptomatic individuals, [and] quarantine of persons who test positive for COVID-19." Dkt. 36 at 3. Plaintiffs also argued that the Hospital failed to comply with CDC guidance with respect to social distancing, mask use, and hygienic practices. See, e.g. , Dkt. 39-6 at 1 (Costa Decl. ¶¶ 4–7); Dkt. 39-6 at 1–3 (Guzman Decl. ¶ 3a–c); see also Dkt. 42-5 at 5 (Pontes Decl. ¶ 10) (attesting that staff does "as much as they can to ensure patients practice social distancing," but reporting that it "is difficult to enforce without impinging on patient autonomy"); id. at 6 (Pontes Decl. ¶ 13) (attesting that patients have access to face masks upon request and that "[s]ome patients choose to wear masks, others do not"). Finally, Plaintiffs maintained that the Hospital had also fallen short in its provision of mental health services during the pandemic and, in particular, that the Hospital was not taking steps to ensure that the patients received the mental health care they require (such as by providing remote alternatives for group and individual therapy); was not updating mental health treatment plans to account for pandemic-related stress; and was not releasing eligible patients into community-based programming. See, e.g. , Dkt. 39 at 33.

After expedited proceedings that focused on the most pressing issues, the Court granted Plaintiffs’ motion for a temporary restraining order in part. Dkt. 59. Among other things, the TRO required Saint Elizabeths, "[t]o the extent medically and psychiatrically practicable," to isolate individuals who had been exposed to COVID-19; to "conduct clinical evaluations prior to releasing patients suspected of having COVID-19 ... from isolation" and, in cases involving heightened "clinical suspicion," to "administer test-based criterion of two negative tests ... prior to discontinuing isolation;" and to report to the Court and Plaintiffs’ counsel regarding compliance with these requirements. Dkt. 60. As the Court noted in its memorandum opinion, by April 23, 2020, forty-three Saint Elizabeths patients had tested positive for the virus and seven had died—a mortality rate magnitudes higher than the rate for the District as a whole. See Dkt. 80 at 48 (estimating that the Hospital's mortality rate was "40 times" that of the general population in the District).

Following the entry of the TRO, the Court appointed Dr. Ronald Waldman, Ms. Joan Hebden, and Dr. Patrick Canavan as amici curiae to conduct an investigation and to provide information to the Court relating to a list of questions relevant to Plaintiffs’ claims. Dkt. 68. On May 11, 2020, the amici filed their reports with the Court, summarizing their findings and recommendations. Dkt. 78; Dkt. 81. That same day, the Court found that good cause existed to extend the TRO until May 22, 2020 because (1) the parties needed time to brief Plaintiffs’ motion for preliminary injunction; (2) the public health crisis at the Hospital was ongoing; and (3) Defendants good faith efforts to comply with the TRO did not obviate the need for court-ordered relief. Dkt. 82. The Court further found that the TRO should be expanded to require Defendants to conduct "point prevalence surveys" ("PPSs") and to restrict cross-unit staff movements—both CDC recommended measures that amici found the Hospital had yet to implement in important respects.

Plaintiffs now move to convert the TRO into a preliminary injunction and to include additional relief that goes beyond that included in the TRO. Dkt. 87. Defendants oppose Plaintiffs’ motion. Dkt. 90. The Court heard oral argument on the motion earlier yesterday. To date, thirteen Saint Elizabeths patients and one staff member have died from the virus.

II. LEGAL STANDARDS

"Preliminary injunctive relief is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’ " Banks v. Booth , No. 20-849, 2020 WL 1914896 at *3, 2020 U.S. Dist. LEXIS 68287 at *15 (D.D.C. Apr. 19, 2020) (quoting Sherley v. Sebelius , 644 F.3d 388, 392, (D.C. Cir. 2011) ). To obtain a preliminary injunction, a movant "must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Aamer v. Obama , 742 F.3d 1023, 1038 (D.C. Cir. 2014). When seeking such relief, "the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction." Abdullah v. Obama , 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp. , 571 F.3d 1288, 1292 (D.C. Cir. 2009) ) (internal quotation marks omitted). Before the Supreme Court's decision in Winter v. NRDC , 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), courts in this circuit applied a "sliding-scale" approach under which "a strong showing on one factor could make up for a weaker showing on another." Sherley v. Sebelius , 644 F.3d 388, 392 (D.C. Cir. 2011). Since Winter , the D.C. Circuit has hinted on several occasions that "a likelihood of success is an independent, free-standing requirement," id. at 393 (quotation omitted), but it "has not yet needed to decide th[e] issue," League of Women Voters of U.S. v. Newby , 838 F.3d 1, 7 (D.C. Cir. 2016). "In light of this...