Toure v. Hott

458 F.Supp.3d 387

TOURE, et al., Plaintiffs,

v.HOTT, et al., Defendants.

Civil Action No. 1:20-cv-395

United States District Court, E.D. Virginia, Alexandria Division.

Signed April 29, 2020

Granville Clayton Warner, Kristin Fisher Donovan, Simon Yehuda Sandoval-Moshenberg, Legal Aid Justice Center, Falls Chruch, VA, Adina Bassin Appelbaum, Capital Area Immigrants' Rights Coalition, Washington, DC, for Plaintiffs.

Matthew J. Mezger, Dennis Carl Barghaan, Jr., United States Attorney's Office, Alexandria, VA, for Defendants Field Office Dir. Russell Hott, Matthew T. Albence, U.S. Immigration and Customs Enforcement.

John Michael Erbach, Kasey Leigh Hoare, Spotts Fain PC, Richmond, VA, for Defendant Jeffery Crawford.

MEMORANDUM OPINION & ORDER

Liam O' Grady, United States District Judge This matter is before the Court upon the motion of Plaintiff-Petitioners for a temporary restraining order or preliminary injunction. Dkt. 7. They seek immediate release from two immigration detention centers, either upon their own recognizance or, alternatively, for placement into community-based alternatives to detention. Dkt. 7. The matter was fully briefed, and the Court heard oral argument by telephone on April 24, 2020.

I. Background

Plaintiff-Petitioners ("Plaintiffs") brought this action styled as both a petition for a writ of habeas corpus and a civil complaint. They are individuals in the custody of U.S. Immigration and Customs Enforcement ("ICE"), currently detained in one of two different Virginia facilities: Farmville Detention Center ("Farmville") and Caroline Detention Facility ("Caroline"). They are detained under various statutory provisions, and each has a unique administrative history.¹

Plaintiffs allege that because of an underlying health condition or their age and because of the circumstances of detention, their continued detainment exposes them to a substantial risk of infection by the COVID-19 virus, thereby endangering their health and safety. COVID-19 is a highly contagious and potentially deadly respiratory illness. The virus may be spread by symptomatic or asymptomatic carriers and has been declared a pandemic. It can cause severe damage which may necessitate advanced medical support. Certain underlying medical conditions increase the risk of serious illness or death for individuals of any age, and individuals over the age of sixty also face increased risk. There is no COVID-19 vaccine, and as a result, measures such as social distancing and vigilant hygiene are being used to reduce the spread of the virus.

There are six Plaintiffs.² Each has at least one underlying medical condition or is over the age of sixty, or both, and thus each is at increased risk of serious illness or death if they were to contract COVID-19. First, Plaintiff Francois Toure is a twenty-nine year old citizen of Guinea. Mr. Toure, who suffers from asthma and borderline diabetes, is detained at Farmville. Second, Plaintiff Sisira Kumara Kumaragamage Don is an Australian citizen over the age of sixty.³ Mr. Don suffers from diabetes and hypertension (high blood pressure ). Mr. Don's request for bond has been denied by an Immigration Judge, and that order as well as his removal order are currently pending appeal before the Board of Immigration Appeals. He is detained at Farmville. Third, Plaintiff Venacio Escobar Andasol is a sixty-five year old citizen of El Salvador. He is detained at Farmville. Fourth, Plaintiff Melvin Castro is also a citizen of El Salvador. He is thirty-seven years old, suffers from asthma, and is currently detained at Caroline. Fifth, Plaintiff Ummy Ismail Mohamed is a Tanzanian citizen, currently detained at Caroline. She is twenty-five years old. She has been ordered removed, and has until April 29, 2020 to appeal that order. She suffers from asthma. Sixth and finally, Plaintiff Faustino Romero Aguilon is a Guatemalan citizen who suffers from diabetes and hypertension. Mr. Aguilon is detained at Caroline.

The Farmville and Caroline detention centers are both located in Virginia, which has not been exempt from the COVID-19 pandemic. Virginia confirmed its first case of the illness on March 7, 2020, and more than eleven thousand additional cases have followed. As of April 22, Prince Edward County—where Farmville is located—has confirmed nineteen cases of COVID-19, and Caroline County—where Caroline is located—has confirmed seventeen cases. Caroline itself has had two confirmed cases of COVID-19 among detainees. Farmville has had zero.

Caroline is approximately 40% empty. Mros Decl. ¶ 3. It maintains a physician on-call constantly, twenty-four hours a day, seven days a week. Mros Decl. ¶ 5. A physician and other medical professionals are on-site five days per week, and some medical staff are on-site every day between 5 a.m. and 11:30 p.m. Id. Detainees have access to sick call every day of the week. Id.

Caroline has implemented changes and protocols to address COVID-19. The facility receives regular guidance from ICE, which reports guidance from the Centers for Disease Control ("CDC"). Mros Decl. ¶ 7. It is also in frequent communication with the Rappahannock Area Health District of the Virginia Department of Health which makes testing available to Caroline as the need for such testing—consistent with CDC guidelines—arises. Mros Decl. ¶ 8.

All Caroline staff and vendors are screened upon entry. Mros Decl. ¶ 11. Staff who exhibit COVID-19 symptoms are denied entry and directed to stay home. Id. They may return to work only once cleared by a medical professional. Id. In addition, social visitation at Caroline has been suspended, and professional visits are limited to noncontact visits. Mros Decl. ¶ 10. The detainees have received verbal COVID-19 prevention education, are encouraged to regularly wash their hands, and to not touch their faces. Mros Decl. ¶ 14. COVID-19 related literature is posted in the housing units in English, Spanish, and Chinese. Id. Communal space cleaning and disinfecting has been increased, and Caroline provides detainees with soap for their hands and disinfectants for their living areas. Mros Decl. ¶ 9. Before April 23, symptomatic detainees were provided surgical masks. Mros Decl. ¶ 12. On April 23, Caroline distributed masks to all detainees at the facility. Hr'g Tr. 19, Apr. 24, 2020. All staff have been required to wear masks inside Caroline since April 21. Mros Decl. ¶ 12.

All scheduled detainee medical encounters now incorporate a COVID-19 symptom screening. Mros Decl. ¶ 13. Also, as of April 17, Caroline either isolates or cohorts all incoming detainees for fourteen days. Mros Decl. ¶ 15. Cohorting is the practice of isolating groups of individuals who have shared exposure to a person. Id. The fourteen-day period is the incubation period, during which individuals may be asymptomatic but contagious. Id. Fourteen days is period for which the CDC recommends self-isolation due to possible COVID-19 exposure. Id.

If detainees develop COVID-19 symptoms, they are evaluated by a medical provider. Id. Detainees suspected of having COVID-19 are isolated in a negative pressure room, or another single room if one is unavailable, and monitored regularly. Mros Decl. ¶ 17. This happens until COVID-19 can be excluded or in accordance with CDC guidelines if they do not meet the testing criteria. Id. That individual's housing unit would be cohorted until COVID-19 was excluded, or until the fourteen-day incubation period expires (without a new case). Id.

As noted above, two detainees at Caroline have tested positive for COVID-19. Mros Decl. ¶ 18. Those detainees were isolated upon their arrival at Caroline, and were not exposed to the general detainee population. Id. Neither case required hospitalization for treatment, and both are stable. Id. Notably, both detainees were transferred to nearby hospitals for their tests, and returned to Caroline for quarantine while awaiting the results. Id.

One other detainee was tested for COVID-19, and his test returned negative. Id. He was isolated immediately upon exhibiting symptoms, and his housing unit remained cohorted until the negative test result was returned. Id.

Farmville, like Caroline, has implemented a number of measures in response to COVID-19. Farmville employs a physician, Dr. Moore, full-time as the facility's medical director. Moore Decl. ¶ 3. Dr. Moore is in contact with the Piedmont Health District of the Virginia Department of Health daily, and she checks for updated COVID-19 guidance from the CDC and Virginia twice each day. Crawford Decl. ¶¶ 3(c), 3(f), 22; Moore Decl. ¶ 9; see also Crawford Decl. ¶ 7 (discussing sharing updates daily summarizing recent information, including CDC guidance beginning on March 2). To accommodate Farmville's limited size and maintain medical readiness while also allowing new detainees a quarantine period, detainees who are newly arriving at Farmville are first quarantined at Caroline for fourteen days. Crawford Decl. ¶ 24; Moore Decl. ¶¶ 12-13. This practice has been implemented since April 17. Crawford Decl. ¶ 24.

In addition to the detainee isolation period, Farmville has implemented staff screenings. Moore Decl. ¶ 8. Staff entering Farmville are screened for temperature and symptoms every time they enter the building. Id. Employees who fail a medical screening are not permitted to return to work until they meet strict conditions: either (1) resolution of fever without the use of fever-reducing medications, and improvement in respiratory symptoms, and negative results from two COVID-19 tests taken more than 24 hours apart, or (2) at least 72 hours have passed since resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms and at least 7 days have passed since symptoms first appeared. Id. Detainees are also screened at intake by using both temperature screenings and questions about COVID-19 symptoms. Positive responses result in the detainee being sent to a hospital, Centra...