Malam v. Adducci

469 F.Supp.3d 767

Janet MALAM, Petitioner-Plaintiff,andQaid Alhalmi, et al., Plaintiff-Intervenors,

v.Rebecca ADDUCCI, et al., Respondent-Defendants.

Case No. 20-10829

United States District Court, E.D. Michigan, Southern Division.

Signed June 28, 2020

Rosana Santana Moura Garbacik, Andrew D. Stacer, Stacer, PLC, Plymouth, MI, for Petitioner-Plaintiff.

Daniel S. Korobkin, Monica Cesilia Andrade, American Civil Liberties Union Fund of Michigan, Detroit, MI, Jeannie S. Rhee, Stanton Lawyer, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, Jonathan Silberstein-Loeb, Katharine Warren Gadsden, Oleg Shik, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Miriam J. Aukerman, American Civil Liberties Union of Michigan West Michigan Regional Office, Grand Rapids, MI, for Plaintiff-Intervenor Ruby Briselda Escobar.

Daniel S. Korobkin, Monica Cesilia Andrade, American Civil Liberties Union Fund of Michigan, Detroit, MI, Jeannie S. Rhee, Stanton Lawyer, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, Jonathan Silberstein-Loeb, Katharine Warren Gadsden, Oleg Shik, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Miriam J. Aukerman, American Civil Liberties Union of Michigan West Michigan Regional Office, Grand Rapids, MI, My Khanh Ngo, American Civil Liberties Union Foundation, San Francisco, CA, for Plaintiff-Intervenor Amer Toma.

Katharine Warren Gadsden, Oleg Shik, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Stanton Lawyer, Jeannie S. Rhee, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, for Plaintiff-Intervenors Tomas Cardona Ramirez, Guo Yan Lin Castro, Rudy Sosa Carillo, Sergio Brito, Jose Mauricio Garcia Toledo, Emanuel Rosales Borboa, Damary Rodriguez Salabarria, Qaid Alhalmi, Min Dan Zhang, Baldemar Barajas Santoyo, Jose Gomez Santiz, Yohandry Ley Santana, Sergio Perez Pavon, Johanna Whernman, Lenche Krcoska, Waad Barash, William Whernman, Zaid Shaher Mohammad al-Araj, Ahammad Ali, Ziggy Marcus Garvie, Juan Guerrero Bernardez, Gan Jin, Tauqir Niazi, Pedro Quijada.

Katharine Warren Gadsden, Oleg Shik, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Jeannie S. Rhee, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, for Plaintiff-Intervenors Isaac Orta Vieyra, Julio Fernando Medina Euceda, Leonard Baroi.

Kevin Hirst, Office of Immigration Litigation, Washington, DC, Bradley Darling, U.S. Department of Justice, Jennifer L. Newby, U.S. Attorney, Detroit, MI, for Respondent-Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AS PRELIMINARY INJUNCTION [98]

JUDITH E. LEVY, United States District Judge

Plaintiffs Waad Barash, Lenche Krcoska, Sergio Perez Pavon, Yohandry Ley Santana, Johanna Whernman, and William Whernman are the fourth group of civil immigration detainees in this case to seek emergency injunctive relief finding their continued detention at the Calhoun County Correctional Facility unconstitutional and requiring their immediate release because of the threat posed by the COVID-19 pandemic.¹ In this opinion, the Court will evaluate the continued threat COVID-19 poses to medically vulnerable detainees, the adequacy of current precautions taken by the Calhoun County Correctional Facility, and the legal standard applicable to Plaintiffs’ claims. The Court finds that COVID-19 continues to create a high risk of irreparable injury to Plaintiffs absent an injunction. Because Plaintiffs are likely to succeed on the merits of their Fifth Amendment claim and the public interest favors their release, the Court grants Plaintiffs’ motion.

BACKGROUND

On June 2, 2020, Plaintiffs moved to amend their joint proposed class action petition for a writ of habeas corpus and complaint for injunctive relief to include these six Plaintiffs as named putative class representatives. (ECF No. 91.) After the Court granted Plaintiffs leave to amend on June 5, 2020 (ECF No. 96), Plaintiffs filed this motion for a temporary restraining order. (ECF No. 98.) Defendants responded on June 10, 2020 (ECF No. 101), and Plaintiffs replied on June 15, 2020. (ECF No. 117.)

Each Plaintiff alleges that because of their age and/or underlying medical conditions, they are at heightened risk of a dire outcome from COVID-19.

Waad Barash

Plaintiff Waad Barash is fifty-six years old and tested positive for tuberculosis upon arriving at the Calhoun County Correctional Facility. (ECF No. 98, PageID.3368.) Barash has a ten-year history of smoking. (Id. at PageID.3369.) He suffers from hypertension, for which he alleges he has not received medication while in detention. (Id. )

Lenche Krcoska

Plaintiff Lench Krcoska is fifty-two years old. (Id. ) She suffers from rheumatoid arthritis and a heart arrythmia. (Id. ) To treat her arthritis, Krcoska's doctor prescribed her a specific diet, which she alleges she is unable to follow while in detention at the Calhoun County Correctional Facility. (Id. )

Sergio Perez Pavon

Plaintiff Sergio Perez Pavon is thirty-six years old. (Id. ) He suffers from type 2 diabetes. (Id. ) Since arriving at the Calhoun County Correctional Facility, Perez Pavon has become insulin dependent. (Id. at PageID.3371.)

Yohandry Ley Santana

Plaintiff Yohandry Ley Santana is thirty-three years old. (Id. ) He suffers from asthma, with which he was diagnosed at eight months of age and for which he has been hospitalized numerous times and intubated twice. (Id. ) Most recently, Ley Santana was hospitalized in January 2019 with severe bronchitis and allergies. (Id. ) Despite requesting both allergy medication and his prescribed inhaler, Ley Santana has been provided neither while at the Calhoun County Correctional Facility. (Id. )

Johanna Whernman

Plaintiff Johanna Whernman is fifty-seven years old. (Id. at PageID.3372.) She suffers from asthma, for which she uses an inhaler. (Id. ) Johanna Whernman has not consistently received her inhaler while at the Calhoun County Correctional Facility. (Id. ) She has been hospitalized multiple times—most recently in February 2020—due to side effects from her asthma medication. (Id. )

William Whernman

Plaintiff William Whernman, son of Plaintiff Johanna Whernman, is twenty-two years old. (Id. ) He suffers from asthma, for which he uses an inhaler. (Id. ) William Whernman has not consistently received his inhaler while at the Calhoun County Correctional Facility. (Id. ) He is clinically obese, with a body mass index of 30.85. (Id. )

LAW AND ANALYSIS

I. Jurisdiction

In its April 6, 2020 Opinion and Order, the Court found that it had jurisdiction pursuant to 28 U.S.C. § 2441. (ECF No. 23, PageID.535.) In the alternative, the Court found that it had jurisdiction pursuant to 28 U.S.C. § 1331. (Id. at PageID.536.) The Court held that sovereign immunity did not apply (Id. at PageID.544) and that no other statute deprived the Court of jurisdiction. (Id. at PageID.547.) In Wilson, et al. v. Williams, et al. , the Sixth Circuit upheld habeas jurisdiction in a similar case, finding that "[b]ecause petitioners seek release from confinement, ‘the heart of habeas corpus,’ ... jurisdiction is proper under § 2241." 961 F.3d 829, 838 (6th Cir. 2020) (citing Preiser v. Rodriguez , 411 U.S. 475, 498, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ). Plaintiffs’ current motion presents the same jurisdictional questions; Defendants raise no new jurisdictional arguments. With respect to jurisdiction, the Court adopts its April 6, 2020 Opinion and Order (ECF No. 23) in full.

II. Legal Standard

Plaintiffs seek a temporary restraining order. (ECF No. 98.) Nonetheless, Plaintiffs gave notice to Defendants and did not seek a ruling before Defendants could respond. A temporary restraining order, which can be issued without notice to the adverse party, is meant to preserve the status quo until a court can make a reasoned resolution of a dispute. Fed. R. Civ. P. 65(b)(1) ; Procter & Gamble Co. v. Bankers Trust Co. , 78 F.3d 219, 226 (6th Cir. 1996). Here, because the Defendants are on notice and the Court allowed time for extensive briefing, the Court will treat the motion as one for a preliminary injunction rather than for a temporary restraining order. See Perez-Perez v. Adducci, No. 20-10833, 459 F.Supp.3d 918, 924–25 (E.D. Mich. May 9, 2020) (doing the same). (See also ECF No. 68, PageID.1911.)

"Preliminary injunctions are extraordinary and drastic remedies [ ] never awarded as of right." Am. Civil Liberties Union Fund of Michigan v. Livingston Cty. , 796 F.3d 636, 642 (6th Cir. 2015). In determining whether to grant such an order, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction. Ne. Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell , 467 F.3d 999, 1009 (6th Cir. 2006). These four factors "are not prerequisites that must be met, but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay." Id. (internal quotations omitted).

III. Analysis

The Court grants Plaintiffs’ motion in part because the Court finds that Plaintiffs face a high risk of irreparable injury absent an injunction, Plaintiffs are likely to succeed on the merits of their Fifth Amendment claim, and the public interest favors each Plaintiffs’ release.

A. Irreparable Injury

Plaintiffs are likely to experience irreparable injury absent an injunction, both in the form of loss of health or life and in the form of an invasion of their constitutional rights. See Fofana v. Albence , Case No. 20-10869, 454 F.Supp.3d 651, 665–66 (E.D. Mich. Apr. 15, 2020) (citing ...