Carranza v. Koehn

• Court: District Court, D. Nevada
• Decided: October 16, 2020
• Docket: 2:20-cv-01586
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * *

9 JESS ELIJIO CARRANZA, Case No. 2:20-cv-01586-GMN-DJA JIMMY CARTER KIM, 10 ORDER Plaintiffs/Petitioners, 11 v.

12 WARDEN BRIAN KOEHN,

13 Defendant/Respondent.

14 Plaintiffs/petitioners Jess Elijio Carranza and Jimmy Carter Kim (Plaintiffs), 15 represented by the Federal Public Defender, filed this action asserting that their federal 16 constitutional rights have been violated as a result of inadequate measures at Nevada 17 Southern Detention Center (NSDC) in Pahrump, Nevada to protect them from 18 contracting the COVID-19 disease (ECF No. 1). Plaintiffs have styled their filing as a 19 petition for a writ of habeas corpus under 28 U.S.C. § 2241 and complaint for 20 declaratory and injunctive relief. Defendant-petitioner has filed a motion to dismiss, 21 raising the question whether this action is properly brought, in part, as a habeas action 22 (ECF No. 12). As discussed below, the motion to dismiss is granted in part, and 23 plaintiffs’ habeas claims are dismissed. The action will proceed on Plaintiffs’ civil rights 24 claims. 25 On August 26, 2020, Plaintiffs, held in federal criminal pretrial detention at 26 NSDC,1 filed a “Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and 27

28 1 1 Complaint for Declaratory and Injunctive Relief” (complaint) (ECF No. 1). The complaint 2 names NSDC Warden Brian Koehn as defendant in his official capacity as the Plaintiffs’ 3 immediate custodian. Id. at 4. Defendant appeared and on September 17, 2020, filed a 4 “Motion to Dismiss and Response to Petition for Writ of Habeas Corpus” with supporting 5 declarations (ECF Nos. 9-13). Plaintiffs filed a response (ECF No. 15). Defendant filed 6 a reply and supplemental declarations (ECF No. 18). Plaintiffs filed a supplement to 7 their response (ECF No. 21). They have also sought leave and submitted a surreply 8 (ECF Nos. 22, 22-1).2 Defendant argues that Plaintiffs’ claims are not cognizable in a 9 habeas action under 28 U.S.C. § 2241. Thus, he argues that the court lacks subject 10 matter jurisdiction over those claims and cannot grant relief on those claims. 11 Federal Rule of Civil Procedure 12(b)(1) provides for motions to dismiss for lack 12 of subject matter jurisdiction. Federal courts are courts of limited jurisdiction, with the 13 power to hear cases only when authorized by the Constitution and statute. Kokkonen v. 14 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “Dismissal for lack of subject 15 matter jurisdiction is appropriate if the complaint, considered in its entirety, on its face 16 fails to allege facts sufficient to establish subject matter jurisdiction.” In re Dynamic 17 Random Access Memory (DRAM) Antitrust Litigation, 546 F.3d 981, 984–85 (9th Cir. 18 2008). When subject matter jurisdiction is challenged in a motion to dismiss pursuant to 19 Rule 12(b)(1), the burden of establishing subject matter jurisdiction is on the party 20 invoking the court’s jurisdiction. See id. The court presumes lack of subject matter 21 jurisdiction until the plaintiff establishes that it exists. Kokkonen, 511 U.S. at 377. 22 Federal Rule of Civil Procedure 12(b)(6) provides for motions to dismiss for 23 failure to state a claim upon which relief can be granted. A Rule 12(b)(6) motion tests 24 the legal sufficiency of the plaintiff’s claims. Dismissal for failure to state a claim is 25 proper only if it is clear the plaintiff cannot prove any set of facts in support of the claim 26 that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 27

28 2 1 1999). In making this determination, the court takes as true all allegations of material 2 fact stated in the complaint and construes them in the light most favorable to the 3 plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). The court 4 should “begin by identifying pleadings [allegations] that, because they are no more than 5 mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 6 U.S. 662, 679 (2009). “While legal conclusions can provide the framework of a 7 complaint, they must be supported with factual allegations.” Id. 8 The notice pleading standard applicable in ordinary civil actions does not apply in 9 habeas corpus cases; habeas petitions must meet heightened pleading requirements. 10 See McFarland v. Scott, 512 U.S. 849, 856 (1994); see also Rule 4, Rules Governing 11 Section 2254 Cases in the United States District Courts, Advisory Committee Notes 12 (“[N]otice’ pleading is not sufficient, for the petition is expected to state facts that point to 13 a ‘real possibility of constitutional error.” (quoting Aubut v. State of Maine, 431 F.2d 688, 14 689 (1st Cir. 1970))). 15 The Centers for Disease Control and Prevention (“CDC”), describes the COVID- 16 19 pandemic, which is caused by a novel coronavirus, SARS-CoV-2, as “a serious 17 global health threat.” https://www.cdc.gov/coronavirus/2019-nCoV/index.html; 18 https://www.cdc.gov/coronavirus/2019-ncov/global-covid-19/index.html. (all internet 19 materials as last visited October 14, 2020). As of October 14, 2020, the CDC reported 20 7,835,007 total cases in the United States, and 215,194 total deaths in the United 21 States from the disease. https://covid.cdc.gov/covid-data-tracker/#cases_totalcases. 22 COVID-19 is highly contagious—“spreading very easily and sustainably between 23 people”—and it is thought to spread “between people who are in close contact with one 24 another (within about 6 feet),” “through respiratory droplets produced when an infected 25 person coughs, sneezes, or talks.” https://www.cdc.gov/coronavirus/2019-ncov/prevent- 26 getting-sick/how-covid-spreads.html. The CDC states that it may be spread by people 27 who are not showing symptoms. Id. The CDC advises that the best ways of protecting 28 1 oneself and others is to know how it spreads; wash hands often; avoid close 2 interpersonal contact; cover the mouth and nose with a mask when around others; 3 cover the mouth when coughing or sneezing; clean and disinfect frequently touched 4 surfaces daily; and monitor health daily. https://www.cdc.gov/coronavirus/2019- 5 ncov/prevent-getting-sick/prevention.html. The CDC also advises that some people are 6 more likely than others to become severely ill from COVID-19 and that this includes 7 racial and ethnic minority groups, older adults, and people with certain underlying 8 medical conditions. https://www.cdc.gov/coronavirus/2019-ncov/need-extra- 9 precautions/index.html. There is currently no vaccine to prevent COVID-19. 10 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html. On 11 March 12, 2020, Governor Steve Sisolak issued a declaration of emergency in the State 12 of Nevada due to COVID-19. https://gov.nv.gov/News/Emergency_Orders/2020/2020- 13 03-12_-_COVID-19_Declaration_of_Emergency/. On March 13, 2020, President 14 Donald J. Trump declared the COVID-19 outbreak in the United States a national 15 emergency. https://www.whitehouse.gov/presidential-actions/proclamation-declaring- 16 national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/. 17 Correctional and detention facilities present unique challenges with respect to control of 18 SARS-CoV-2 transmission among incarcerated and detained persons, staff, and 19 visitors. https://www.cdc.gov/coronavirus/2019-ncov/community/correction- 20 detention/guidance-correctional-detention.html. 21 Plaintiff Jess Elijio Carranza 22 Carranza is a federal criminal pretrial detainee at NSDC, charged in Case No. 23 2:19-cr-00310-RFB-BNW with 1 count of felon in possession of a firearm (ECF No. 1, p. 24 3).3 The petition/complaint states that his jury trial is currently scheduled for October 19, 25 2020. He alleges that he has been exposed to COVID-19 and has experienced 26 symptoms. He claims he was housed in Unit 4G with co-plaintiff Kim while Kim awaited 27

28 3 1 results of his COVID-19 test. He avers that NSDC personnel have not tested him 2 despite numerous requests. Carranza says that he suffers from type 1 diabetes and 3 high blood pressure. He has not challenged his detention in his criminal case since his 4 initial appearance (ECF No. 12, p. 5). Respondents state that medical records reflect 5 that Carranza is 37 years-old with type 2 (non-insulin dependent) diabetes and high 6 blood pressure. Id. at 6-7. 7 Plaintiff Jimmy Carter Kim 8 Kim is also a federal criminal pretrial detainee, charged in Case No. 2:18-mj- 9 00836-DJA with kidnapping and sexual exploitation of children (ECF No. 1, p. 3).4 The 10 petition/complaint states that his preliminary hearing currently is scheduled for October 11 16, 2020. Kim, age 31, tested positive for COVID-19. He avers that he remained in Unit 12 4G for 2 days while his test was pending. After a 14-day medical isolation period, 13 prison personnel returned Kim to his dormitory-style unit but did not retest him. 14 Specifically, Kim alleges: 15 In early July, Kim collapsed on the floor in the medical wing after 16 finally being removed from his unit after his COVID-19 test returned positive. 17 Kim’s symptoms included fever, chest pains, dry mouth, fatigue, head and body aches, difficulty breathing, stiff joints, lock jaw, and his arms and hands 18 were seizing up. NSDC staff picked him up off the floor, placed him in a wheelchair, handcuffed him, and wheeled him to the hole. Staff did not give 19 Kim any medicine to treat his symptoms, let alone schedule an appointment with a doctor before placing him in the hole. 20

21 The cell in which Kim was placed was filthy; he had no bedding for five hours and no soap until the next day. He was not given medicine to ease his 22 symptoms before being placed in the hole and was forced to drink water out of the sink. 23 Kim was not permitted access to a phone to call his attorney for five days. 24 Additionally, he was not permitted to take a shower for seven days. 25 After 14 days, Kim was moved from the hole back to his unit. He was 26 never retested.

27 (ECF No. 1, p. 9). 28 1 Plaintiffs allege that defendant has failed to implement the CDC’s guidance for detention 2 facilities at NSDC. Id. at 7-15. 3 Plaintiffs invoke this court’s subject matter jurisdiction “under 28 U.S.C. § 1331 4 (federal question), and 28 U.S.C. § 2241 (habeas corpus)” (ECF No. 1, p. 4). Plaintiffs 5 claim that the conditions at NSDC, with respect to the threat posed by COVID-19, 6 violate their rights as federal criminal pretrial detainees under the Fifth Amendment to 7 the United States Constitution. Id. at 17-18. Plaintiffs seek a declaration that the current 8 conditions at NSDC are unconstitutional and ask the court to direct Defendant to 9 implement detailed sanitation and testing protocols. Id. at 18-23. They also ask that “if 10 Constitutional conditions of confinement cannot be established” they be released 11 pending trial. Id. at 21. 12 Federal law provides for two primary means for prisoners to seek relief on 13 complaints related to their imprisonment, petitions for writ of habeas corpus and civil 14 rights complaints. See Muhammad v. Close, 540 U.S. 749, 750 (2004); Nettles v. 15 Grounds, 830 F.3d 922, 927 (9th Cir. 2016). “Challenges to the validity of any 16 confinement or to particulars affecting its duration are the province of habeas corpus.” 17 Id. (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). Claims involving the 18 circumstances of the plaintiff’s confinement may be presented in civil rights actions. Id. 19 Under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 20 (1971), a plaintiff may, in a civil rights action, sue a federal officer in his or her individual 21 capacity for damages for violating the plaintiff's constitutional rights. See Bivens, 403 22 U.S. at 389. And—as is the case, in part, here—a plaintiff may sue a federal officer in 23 his or her official capacity, invoking jurisdiction under 28 U.S.C. § 1331, and the court’s 24 inherent equitable powers, and seek injunctive relief to remedy alleged constitutional 25 violations. 26 “The Supreme Court has ‘long held that federal courts may in some 27 circumstances grant injunctive relief against’ federal officials violating federal law.” 28 1 Sierra Club v. Trump, 929 F.3d 670, 694 (9th Cir. 2019) (citing Armstrong v. Exceptional 2 Child Ctr., Inc., 575 U.S. 320, 326–27 (2015)); Armstrong, 575 U.S. at 327 (“The ability 3 to sue to enjoin unconstitutional actions by state and federal officers is the creation of 4 courts of equity, and reflects a long history of judicial review of illegal executive action, 5 tracing back to England.”); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) 6 (“[I]njunctive relief has long been recognized as the proper means for preventing entities 7 from acting unconstitutionally.”); Bacon v. Core Civic, No. 2:20-cv-00914-JAD-VCF, 8 2020 WL 3100827, at *6 (D.Nev. June 10, 2020). 9 This action, as pled by Plaintiffs, is a hybrid habeas and civil rights action; 10 Plaintiffs’ complaint includes both claims for habeas corpus relief, i.e. release from 11 NSDC, and claims for civil rights relief, i.e. injunctive and/or declaratory relief (see ECF 12 No. 1). 13 The Court concludes, however, in light of the particular factual allegations on 14 which Plaintiffs’ claims rely—allegations regarding failure to test all inmates or even all 15 symptomatic inmates for COVID-19; inadequate cleaning; failure to provide detainees 16 with adequate cleaning supplies, personal protective equipment and other items 17 necessary to protect them from COVID-19; and insufficient medical care—that this 18 action is a conditions-of-confinement case. Plaintiffs seek relief on account of the 19 conditions of their confinement. They do not claim any illegality regarding the reasons 20 for their detention or its duration. As has been noted in this district, while it is true that if 21 Plaintiffs were not detained at NSDC, they would not be subject to the alleged 22 constitutional violations, that can be said in any conditions-of-confinement case. If that 23 were determinative of whether an action is properly a habeas action or a civil rights 24 action, it would render habeas jurisdiction available in every conditions-of-confinement 25 case. See Cordova Carballo et al. v. Barr, et al, Case No. 2:20-cv-01315-APG-BNW, 26 ECF No. 46. 27 28 1 Plaintiffs stress that the Supreme Court has not explicitly foreclosed habeas 2 corpus jurisdiction over all conditions-of-confinement claims. See Ziglar v. Abbasi, 137 3 S. Ct. 1843, 1862 (2017) (leaving open the question whether immigration detainees 4 challenging “large-scale policy decisions concerning the conditions of confinement 5 imposed ... might be able to challenge their confinement conditions via a petition for a 6 writ of habeas corpus”); Boumediene v. Bush, 553 U.S. 723, 792 (2008) (declining to 7 determine “the reach of the writ with respect to claims of unlawful conditions of 8 treatment or confinement”); Bell v. Wolfish, 441 U.S. 520, 526, n. 6 (1979) (leaving for 9 “another day the question of the propriety of using a writ of habeas corpus to obtain 10 review of the conditions of confinement”); Preiser, 411 U.S. at 499 (“When a prisoner is 11 put under additional and unconstitutional restraints during his lawful custody, it is 12 arguable that habeas corpus will lie to remove the restraints making custody illegal.”). 13 In the Ninth Circuit, the Court of Appeals has left open the question of habeas 14 jurisdiction over conditions-of-confinement claims by federal prisoners. In Nettles v. 15 Grounds, 830 F.3d 922 (9th Cir. 2016), a habeas action, a state prisoner challenged a 16 prison disciplinary action on constitutional grounds, claiming the improper disciplinary 17 action could affect his eligibility for parole. The Court of Appeals held that because the 18 petitioner’s claim did not fall within the “core of habeas corpus,” that is, it did not 19 necessarily implicate the “fact or duration” of his conviction or sentence, it must be 20 brought, if at all, in a civil rights action under 42 U.S.C. § 1983. Nettles, 830 F.3d at 925 21 (quoting Preiser, 411 U.S. at 487); see also Nettles, 830 F.3d at 931, 934. The Court of 22 Appeals noted that the Supreme Court has suggested that civil rights actions under 42 23 U.S.C. § 1983 are the exclusive vehicle for state prisoners’ claims that fall outside the 24 core of habeas. See id. at 929–31 (citing Muhammad, Wilkinson, and Skinner v. 25 Switzer, 562 U.S. 521 (2011)). The Court stated: 26 The [Supreme Court] has long held that habeas is the exclusive vehicle for 27 claims brought by state prisoners that fall within the core of habeas, and 28 such claims may not be brought in a § 1983 action. See, e.g., Wilkinson v. 1 (characterizing the Court’s precedents as holding “that a state prisoner’s § 1983 action is barred (absent prior invalidation)—no matter the relief sought 2 (damages or equitable relief), no matter the target of the prisoner’s suit 3 (state conduct leading to conviction or internal prison proceedings)—if success in that action would necessarily demonstrate the invalidity of 4 confinement or its duration”). Based on our review of the development of the Court’s case law in this area, we now adopt the correlative rule that a § 5 1983 action is the exclusive vehicle for claims brought by state prisoners that are not within the core of habeas corpus. 6

7 Nettles, 830 F.3d at 927. However, the Court of Appeals declined to address the 8 question of whether a civil rights action is the exclusive vehicle for a claim by a federal 9 prisoner not at the core of habeas. See id. at 931 (“Because the case before us involves 10 a state prisoner’s action under 28 U.S.C. § 2254, we need not address how the 11 standard suggested in Skinner and adopted here applies to relief sought by prisoners in 12 federal custody.”); see also Workman v. Mitchell, 502 F.2d 1201, 1208 n.9 (9th Cir. 13 1974)) (stating, in dicta, that it appeared “fairly well established that … federal habeas 14 corpus actions are now available to deal with questions concerning both the duration 15 and the conditions of confinement”). 16 Federal district courts that have addressed the question, in the Ninth Circuit and 17 other circuits, have reached different conclusions regarding subject matter jurisdiction 18 under 28 U.S.C. § 2241 over federal prisoners’ conditions-of-confinement claims in the 19 context of the COVID-19 pandemic. For example, district courts in this circuit held that 20 jurisdiction under § 2241 was proper in such cases as Zhang v. Barr, No. ED CV 20- 21 00331-AB (RAOx), 2020 WL 1502607, at *3 (C.D.Cal. March 27, 2020); Ortuno v. 22 Jennings, No. 20-cv-02064-MMC, 2020 WL 1701724, at *2 (N.D.Cal. April 8, 2020); 23 Bent v. Barr, 445 F.Supp.3d 408, 413–14 (N.D. Cal. April 9, 2020); Habibi v. Barr, 445 24 F.Supp.3d 990, 995 n.2 (S.D. Cal. April 14, 2020); and Perez v. Wolf, 445 F.Supp.3d 25 275, 293 (N.D. Cal. April 14, 2020). See also, e.g., Thakker v. Doll, 451 F.Supp.3d 358, 26 (M.D.Pa. March 31, 2020); Vasquez-Berrera v. Wolf, 4:20-CV-1241, 2020 WL 1904497, 27 28 1 at *3–5 (S.D. Tex. Apr. 17, 2020); Ruderman v. Kolitwenzew, No. 20-cv-2082, 2020 WL 2 2449758, at *7–8 (C.D. III. May 12, 2020). 3 District courts in this circuit have concluded that there was no habeas jurisdiction 4 in several cases, including Alvarez v. Larose, 445 F.Supp.3d 861, 865–68 (S.D. Cal. 5 May 9, 2020) (plaintiffs’ “claims would not exist but for their current conditions of 6 confinement . . . .”); Wilson v. Ponce, No. CV 20-4451-MWF (MRWx), 2020 WL 7 3053375, at *9–10 (C.D. Cal. June 8, 2020); and Hunter v. Martinez, No. 2:20-cv- 8 05121-JAK (SHK), 2020 WL 3258398, at *3–5 (C.D.Cal. June 12, 2020); see also, e.g., 9 Wragg v. Ortiz, No. 20-5496 (RMB), 2020 WL 2745247, at *12–19 (D.N.J. May 27, 10 2020); Codner v. Choate, No. 20-cv-01050-PAB, 2020 WL 2769938, at *4-7 (D.Co. May 11 27, 2020); Mescall v. Hemingway, No. 2:20-11110, 2020 WL 4584028, at *3 (E.D. Mich. 12 Aug. 10, 2020). 13 Considering the precedent governing the general scope of habeas corpus 14 jurisdiction, the court agrees with defendant that this does not appear to be a habeas 15 case. If Plaintiffs succeed in showing that the conditions under which they are held 16 violate the Fifth Amendment by putting them in excessive danger from COVID-19, or 17 because they have received inadequate medical care in relation to COVID-19, that will 18 not necessarily mean they must be released from detention. Plaintiffs’ complaint mainly 19 seeks that the court direct defendant to implement many specific safety measures, 20 including social distancing; adequate sanitation and disinfection; PPE use that is 21 consistent with CDC guidelines; heightened testing; and improved, non-punitive 22 conditions for quarantine (ECF No. 1, pp. 18-22). After listing 17 separate specific 23 safety measures Plaintiffs ask the court to require of Defendant, Plaintiffs also ask that 24 they be released “if constitutional conditions of confinement cannot be established.” Id. 25 at 21. Thus, the Complaint does mention release, but it does not allege that the only 26 effective remedy would be release. Plaintiffs certainly do not set forth factual allegations 27 explaining why the conditions at NSDC could not be altered to sufficiently protect them 28 1 from COVID-19 and provide them with adequate medical care. Even if plaintiffs did 2 argue that conditions could not be altered sufficiently, such a claim would conflict with 3 their requests for detailed injunctive relief regarding the conditions of their confinement. 4 This court concludes that it does not have jurisdiction over Plaintiffs’ habeas claims 5 under 28 U.S.C. § 2241 and that Plaintiffs have not stated viable claims for which 6 habeas corpus relief may be granted. 7 The court in Mescall v. Hemingway, No. 2:20-11110, 2020 WL 4584028 (E.D. 8 Mich. Aug. 10, 2020), made this point in dismissing a similar habeas action in the 9 Eastern District of Michigan: 10 Petitioner’s claims are non-cognizable in habeas; Petitioner does not 11 allege that no set of conditions of confinement would remedy the risk 12 caused by Covid-19. Petitioner alleges that insufficient testing of the inmates and staff is being conducted; Petitioner alleges that some prison 13 staff members are not following protocols for wearing face masks; Petitioner alleges that there is insufficient social distancing; Petitioner claims that there 14 is insufficient sanitary equipment being provided to the inmates. Petitioner argues that the risk of Covid-19 transmission at FCI-Milan could be 15 alleviated if facility wide testing for Covid-19 was ordered, if everyone was 16 ordered to wear a face mask and to socially distance, and if adequate sanitary equipment was provided to all inmates. Petitioner does not allege 17 that “there are no conditions of confinement sufficient to prevent irreparable constitutional injury” at FCI-Milan. Only “where a petitioner claims that no 18 set of conditions would be constitutionally sufficient the claim should be construed as challenging the fact or extent, rather than the conditions, of 19 the confinement.” [Wilson v. Williams, 961 F.3d 829, 838 (6th Cir. 2020) 20 (citing Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011))]. Petitioner’s claims are non-cognizable in a habeas petition, because he challenges the 21 conditions of confinement, rather than the fact or extent of his confinement.

22 23 Mescall v. Hemingway, 2020 WL 4584028, at *3 (E.D. Mich. Aug. 10, 2020). As in 24 Mescall, in this case there is no colorable claim, supported by factual allegations, that 25 release from custody would be the only effective remedy. No habeas jurisdiction lies 26 because Plaintiffs do not allege that the fact or duration of the custody itself is 27 unconstitutional. 28 1 Nevertheless, Plaintiffs’ claims for injunctive and declaratory relief survive. In 2 Roman v. Wolf, a case where detainees made habeas and injunctive and declaratory 3 relief claims about the unconstitutional risk of contracting COVID-19, the Ninth Circuit 4 acknowledged that district courts have the authority to hear claims for injunctive and 5 declaratory relief independently of the habeas claim. See No. 20-55436 (9th Cir. 2020) 6 (declining to address the habeas claim because “the action for declaratory and 7 injunctive relief independently provided the district court jurisdiction to hear the Plaintiff’s 8 challenges and authority to grant the types of relief that Plaintiff sought”). Here, the 9 Plaintiffs are also detainees challenging the constitutionality of the conditions of their 10 confinement in light of COVID-19. As such, the Court will proceed with Plaintiffs’ 11 surviving claims for injunctive and declaratory relief.5 12 Accordingly, the motion to dismiss is granted in part, and the Plaintiffs’ habeas 13 corpus claims are dismissed.6 14 The motion to dismiss is denied in part without prejudice to the extent it seeks 15 dismissal of Plaintiffs’ civil rights claims, that is, Plaintiffs’ claims invoking jurisdiction 16 under 28 U.S.C. § 1331, 28 U.S.C. §§ 2201–02, and the court’s inherent equitable 17

18 5 Defendant also argues for dismissal on the grounds that Plaintiffs do not have standing to assert claims on behalf of the entire population of NSDC detainees, that they did not exhaust their administrative 19 remedies, and that other relief is available under the Bail Reform Act. (ECF No. 12, p. 2:9–15, 17:13). However, Plaintiffs have standing to raise their own claims against unconstitutional treatment, regardless 20 of whether other detainees are subject to the same treatment, and the Court need not address any class certification at this stage. See Ziglar v. Abassi, 137 S. Ct. 1843 (2017) (allowing six detainees to challenge 21 the conditions at a facility holding hundreds); (ECF No. 15, p. 18:8–14). Additionally, exhaustion of administrative remedies is not required if it would be futile, as it is here, since Plaintiffs, as well as many 22 other detainees, have challenged NSDC’s COVID-19 policies to no avail; there is no indication that NSDC’s response to additional grievances would be any different based on their policy. See Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (holding that when a denial of a grievance request is based on 23 official Bureau of Prisons policy, further grievance requests would be futile); (ECF No. 1, p. 13:13–14); (ECF No. 15, p. 16:12–17:15); (ECF No. 12, p. 4:3–4, 32:22–23); (ECF No. 12-1, Exh. A). Finally, the Court 24 agrees with Plaintiffs’ argument that the Bail Reform Act does not provide a mechanism to challenge the conditions of their confinement, as Plaintiffs do here. (See ECF No. 12, p. 15:10–19). 25 6 The court also has considered the practical difficulty, and potential unfairness, of proceeding in this case on both habeas and civil rights claims. It appears that, if this case were to proceed in this hybrid form, a 26 recurring question would be whether habeas practice or general civil practice should control; the answer to that question would be unpredictable for the parties, and would inevitably have different ramifications for 27 the plaintiffs and defendant depending on the procedural step under consideration. It appears that proceeding with this case to resolution as a hybrid habeas and civil rights action, as it is pled, would be 28 1 powers, seeking injunctive and declaratory relief against the Defendant in his official 2 capacity. 3 The Court need not address whether the Federal Public Defender can represent 4 Plaintiffs at this stage in the proceedings, because Plaintiffs’ Motion for Appointment of 5 Counsel, (ECF No. 17), is not yet fully briefed. 6 IT IS THEREFORE ORDERED that defendant’s motion to dismiss (ECF No. 12) 7 is GRANTED in part and DENIED in part. Plaintiffs’ habeas corpus claims are 8 DISMISSED. In all other respects, the motion to dismiss is denied without prejudice. 9 IT IS FURTHER ORDERED that Plaintiffs’ motion for leave to file surreply (ECF 10 No. 22) is GRANTED. The Clerk SHALL DETACH and FILE the surreply at ECF No. 11 22-1. 12

13 DATED: 16 October 2020. 14

15 GLORIA M. NAVARRO UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28