Gutierrez-Lopez v. Figueroa

462 F.Supp.3d 973

Perla Beatriz GUTIERREZ-LOPEZ, Petitioner,

v.Fred FIGUEROA, et al., Respondents.

No. CV-20-00732-PHX-SPL (JFM)

United States District Court, D. Arizona.

Signed May 27, 2020

Christina M. Woehr, Federal Public Defenders Office, Tucson, AZ, for Petitioner.

William Charles Staes, US Attorneys Office, Phoenix, AZ, for Respondents.

ORDER

Steven P. Logan, United States District Judge

Petitioner Perla Beatriz Gutierrez-Lopez (A# 024-496-211), who is detained in the CoreCivic Eloy Detention Center in Eloy, Arizona, has filed, through counsel, a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) and an Application for Temporary Restraining Order and Order to Show Cause (Docs. 2-3) seeking her immediate release from detention due to the health risks associated with her potential exposure to COVID-19. This matter has been fully briefed, and as follows, the Petition will be granted in part.¹

I. Background

A. Coronavirus Disease 2019 ("COVID-19")

COVID-19, a disease caused by a novel strain of coronavirus (SARS-CoV-2), was declared by the World Health Organization as a global pandemic on March 11, 2020. As of May 26, 2020, in the United States, 1,667,154 individuals have been confirmed as positive for COVID-19, of which 16,575 have been confirmed positive in Arizona.²

The United States Department of Health and Human Services Centers for Disease Control and Prevention ("CDC") reports that individuals who contract and transmit COVID-19 experience symptoms that range from negligible, with some individuals remaining entirely asymptomatic, to mild, such as fever, coughing, and difficulty breathing, to severe, including acute respiratory distress, severe pneumonia, septic shock, and multi-organ failure, or even death.³ The CDC estimates that serious illness or death occurs in 16% of all cases.⁴ Those at high-risk of suffering severe illness or death from COVID-19 include individuals who are 65 years and older, or individuals of any age with underlying medical conditions including chronic lung disease, moderate to severe asthma, a serious heart condition, a weakened immune system, severe obesity, diabetes, chronic kidney disease, or liver disease.⁵

The virus that causes COVID-19 is believed to spread mainly through close contact from person-to-person through respiratory droplets from someone who is infected.⁶ The incubation period for COVID-19 extends 14 days on average, with a median time of 4-5 days from exposure to symptoms onset.⁷ The CDC recommends that to avoid exposure and transmission, the public should maintain a physical distance of at least six feet from others, wear cloth face covers, frequently wash hands or use hand sanitizer, and disinfect frequently touched surfaces.⁸ High-risk individuals should take additional "special precautions," such as continue active treatment of underlying medical conditions, obtain vaccinations against other diseases like influenza and pneumococcal illness, stay home, and remain away from others "as much as possible."⁹

B. Detention Facility COVID-19 Guidance

On March 23, 2020, the CDC issued an "Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities" ("CDC Guidance")¹⁰ which "provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors." (CDC Guidance at 2.) The guidance reports there is a heightened risk of transmission of COVID-19 to and among individuals within detention facilities due to, among other things, the number of sources which can introduce them into a facility's population, including detention staff, visitors, contractors, vendors, legal representatives, court staff, and new detainees; the congregate environment in which detainees "live, work, eat, study, and recreate"; and limited medical isolation options, hygiene supplies, and dissemination of accurate information among detainees. (CDC Guidance at 2.)¹¹ For those reasons, the guidance recommends that detention facilities implement specific measures to prepare for potential transmission of COVID-19, to prevent the spread of COVID-19, and to manage confirmed and suspected COVID-19 cases to prevent further transmission and provide treatment.

The guidance states that "[a]lthough 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." (CDC Guidance at 4.) It recommends implementing social distancing strategies to increase the physical space between detained persons "(ideally 6 feet between all individuals, regardless of the presence of symptoms)," such as increasing space between individuals in cells, increasing space between individuals in lines and waiting areas; choosing recreation spaces where individuals can spread out and staggering time in those spaces; staggering meals and rearrange seating in the dining hall so that there is more space between individuals; providing meals inside housing units or cells; limiting the size of group activities and increasing space between individuals during group activities. (Id. at 4, 11.) It further recommends that facilities should house quarantined individuals who have had close contact with a COVID-19 case, or individuals in medical isolation who are suspected or confirmed positive with COVID-19, in order of preference, separately in single cells or as a cohort, although "[c]ohorting should only be practiced if there are no other available options." (Id. at 15-20.)¹² "If cohorting is unavoidable, [facilities should] make all possible accommodations to reduce exposure risk for the higher-risk individuals." (Id. at 19.)

CDC Guidance also recommends that facilities implement intensified cleaning and disinfecting procedures and provide education on, and reinforcement of, hygiene practices. (CDC Guidance at 9-10.) Facilities should, among other things, provide adequate supplies to support intensified cleaning and disinfection practices, and "continually restock hygiene supplies throughout the facility." Facilities should provide detainees and staff no-cost access to soap, running water, hand drying machines or disposable paper towels, tissues, no-touch trash receptacles, and alcohol-based hand sanitizer with at least 60% alcohol where security restrictions allow. (Id. ) The guidance underscores that because the virus can be transmitted from contagious, yet asymptomatic individuals who are present within the facilities, "[b]oth good hygiene practices and social distancing are critical in preventing further transmission." (Id. at 8.)

On April 10, 2020, the United States Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE"), Enforcement and Removal Operations ("ERO"), developed "COVID-19 Pandemic Response Requirements" ("ICE PRR"),¹³ which "builds upon previously issued guidance¹⁴ and sets forth specific mandatory requirements expected to be adopted by all detention facilities housing ICE detainees, as well as best practices for such facilities, to ensure that detainees are appropriately housed and that available mitigation measures are implemented during this unprecedented public health crisis." (ICE PRR at 3; Berger Decl. ¶ 9.)¹⁵ It states that facilities "must ... [c]omply with the CDC's Interim Guidance." (ICE PRR at 5-6, requiring compliance for both dedicated and non-dedicated facilities.) ICE has also issued "ICE Guidance on COVID-19" along with COVID-19 testing statistics, which it updates daily on its website.¹⁶

C. CoreCivic Eloy Detention Center

The CoreCivic Eloy Detention Center ("EDC") in Eloy, Arizona, is a privately-run detention facility contracted by ICE. (Berger Decl. ¶ 3.) CoreCivic manages EDC facility operations, security, and transportation," and ICE Health Services Corps ("IHSC") provides medical, dental, and mental health care to detainees in EDC. (Id. ¶¶ 3, 5.)

EDC houses both male and female detainees and has a capacity to house approximately 1,500 individuals. (Doc. 1 ¶ 44; Berger Decl. ¶ 14.) Detainees live in units, commonly referred to as tanks or pods. The units are comprised of individual cells which house an average of two detainees each, and have, at a minimum, a bunk bed, a sink, and a toilet. (Lopez Decl. ¶¶ 8, 12, 23.)¹⁷

Currently, there are approximately 26,660 detainees in ICE custody, of which 2,394 have been tested for COVID-19, and 1,201 have been confirmed positive. In EDC, zero detainees and one "ICE employee" have been confirmed positive for COVID-19.¹⁸

D. ICE Protocols in EDC

"Since the onset of reports of [COVID-19], ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees." (Berger Decl. ¶ 7.) ICE also "closely follows" CDC Guidance. (Id. ¶ 7, n.1.)

In EDC, "IHSC staff are screening all detainee intakes when they enter the facilities including travel histories, medical histories and checking body temperatures and have procedures to continue monitoring the populations’ health." (Berger Decl. ¶ 20.) "[D]etainees are assessed for fever and respiratory illness, are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community transmission in the past two weeks." (Id. ¶ 11.) Each detainee is also "screened for disabilities upon admission by a Registered Nurse. Identified disabilities are further evaluated and reasonable accommodations are provided as medically appropriate." (Id. ¶ 10.)

In EDC, "[t]hose detainees who present symptoms compatible with COVID-19 will be placed in isolation and monitored for any progressive or...