NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 23 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
KELVIN HERNANDEZ ROMAN; No. 20-55436 BEATRIZ ANDREA FORERO CHAVEZ; MIGUEL AGUILAR ESTRADA, on behalf of themselves and all others similarly D.C. No. situated, 5:20-cv-00768-TJH-PVC
Plaintiffs-Petitioners- Appellees, MEMORANDUM*
v.
CHAD F. WOLF, Acting Secretary, U.S. Department of Homeland Security; TONY H. PHAM, Senior Official Performing the Duties of the Director, U.S. Immigration and Customs Enforcement; DAVID MARIN, Director of the Los Angeles Field Office, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; JAMES JANECKA, Warden, Adelanto ICE Processing Center,
Defendants-Respondents- Appellants.
Appeal from the United States District Court for the Central District of California Terry J. Hatter, Jr., District Judge, Presiding
Argued and Submitted September 15, 2020
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. San Francisco, California
Before: Paul J. Watford, Michelle T. Friedland, and Eric D. Miller, Circuit Judges.
Concurrence by Judge MILLER
In this interlocutory appeal, the Government1 challenges a preliminary
injunction entered by the district court in response to Plaintiffs’ claims that
conditions at the Adelanto Immigration and Customs Enforcement Processing
Center (“Adelanto”), where they were detained, placed them at unconstitutional
risk of contracting COVID-19. We heard oral argument in the appeal last week.
Yesterday evening, while we were preparing an opinion addressing the
interlocutory appeal, we received an emergency motion from Plaintiffs explaining
that, in the last week, 58 detainees and eight staff members had tested positive for
COVID-19 at Adelanto, and over 300 detainees were still awaiting their test
results. Nine detainees have been hospitalized since September 10. Plaintiffs
allege that the Government was already aware of the outbreak by the time of oral
argument but failed to mention it. We did not learn of the outbreak until
1 Defendants-Appellants are Chad F. Wolf, Acting Secretary of Homeland Security; Tony H. Pham, Senior Official Performing the Duties of the Director, U.S. Immigration and Customs Enforcement (“ICE”); David Marin, Director of the Los Angeles Field Office for ICE’s Enforcement and Removal Operations; and James Janecka, Warden of Adelanto. We refer to them collectively as “the Government.” Pham has been automatically substituted for Matthew T. Albence, former Deputy Director and Senior Official Performing the Duties of the Director of ICE. Fed. R. App. P. 43(c)(2).
2 yesterday—more than a week later. The emergency motion asks us either to lift a
stay pending appeal of the preliminary injunction, which had previously been
imposed in an unpublished order by a motions panel of our court, or to clarify that
the stay does not prohibit the district court from ordering protective measures in
response to the changed circumstances presented by the developing outbreak. In
light of the urgency of the situation, we issue this disposition affirming the
preliminary injunction order in part, vacating it in part, and remanding so that the
district court may immediately address current circumstances in Adelanto. A
published version of this opinion will be forthcoming, together with any separate
opinion.
I.
Plaintiffs brought this class action on behalf of noncitizens detained at
Adelanto. These noncitizens are being held in civil detention in connection with
various immigration proceedings, and many of them have no criminal record.
Plaintiffs seek declaratory and injunctive relief, as well as habeas relief. Their
Complaint alleges that, in light of the COVID-19 pandemic, Adelanto’s failure to
implement necessary protective measures—including social distancing, sanitation,
and the provision of sufficient masks and soap—violates detainees’ due process
rights under the Fifth Amendment. The district court certified a class of 1,370
Adelanto detainees, and granted a preliminary injunction that, inter alia, imposed a
3 moratorium on Adelanto’s receipt of new detainees, required specific sanitation
measures, mandated compliance with guidance issued by the U.S. Centers for
Disease Control and Prevention (“CDC”), and ordered the facility’s detainee
population to be reduced to a level that would enable social distancing. The
district court left to the Government’s discretion whether to achieve the requisite
population reduction by deporting selected detainees, transferring selected
detainees to other facilities, or releasing selected detainees with appropriate
conditions of release. The court likewise allowed the Government to determine
which detainees to release, deport, or transfer.
The Government timely appealed and sought an emergency stay of the
preliminary injunction pending appeal, which a motions panel, in an unpublished
order, granted, except to the extent the preliminary injunction “require[d]
substantial compliance with guidelines issued by the [CDC] for correctional and
detention facilities to follow in managing COVID-19.”
We heard oral argument on September 15, 2020. The next day, in response
to an inquiry from Plaintiffs’ counsel, the Government revealed to Plaintiffs’
counsel that 38 detainees had tested positive for COVID-19 at Adelanto.
In the district court, Plaintiffs filed an ex parte application for a temporary
restraining order (“TRO”) on September 16, 2020, seeking an order compelling the
Government to test all Adelanto detainees (using rapid, point-of-care tests, if
4 possible) and to isolate all detainees who received positive test results. The
Government filed a status report, which the district court construed as an
opposition to the TRO application. The district court denied the application for a
TRO on September 17, 2020, without specifying its reasoning.
The following day, Plaintiffs filed an ex parte application for reconsideration
of the district court’s denial of their motion for a TRO and sought a further TRO.
Specifically, Plaintiffs requested that the district court order the Government to:
(1) Test all detainees at Adelanto; (2) Isolate, in single occupancy cells, all detainees who have tested positive for COVID-19 and all detainees who are awaiting test results; (3) Prevent staff who worked in the West 5C and West 5D housing units from returning to work pending their COVID-19 test results, even if they are asymptomatic; (4) Suspend intake of new detainees into Adelanto; and (5) Provide daily status reports. Plaintiffs acknowledged that the Government was already undertaking some of
the measures requested but contended that the Government had neither adopted the
isolation protocols proposed by Plaintiffs nor suspended its receipt of new
detainees into Adelanto. The Government again opposed the motion.
In an order issued on September 22, 2020, the district court expressed
concern about the adequacy of the Government’s response to the outbreak, but it
stated that its “hands have been tied by the Ninth Circuit’s stay.” The district court
therefore denied reconsideration, but it instructed the parties to file a joint status
5 report “regarding Adelanto’s Covid-19 outbreak” with our court, which we
received later that same afternoon.
The parties’ report informed us that, as of September 22, there were 58
confirmed cases among detainees and eight among staff members. More than half
of the detainees who had received results tested positive. Twenty of the COVID-
19-positive detainees belong to a medically vulnerable group at the greatest risk of
suffering severe complications, and nine detainees were hospitalized. The
Government has stated its intention to test all Adelanto detainees and staff. Just
over half of the 774 detainees had been tested by September 20. Tests apparently
take at least three days to return results, so the parties are awaiting results for
hundreds of detainees.
We received an emergency motion from Plaintiffs on the evening of
September 22, several hours after we received the parties’ status report, asking us
to clarify or to partially lift the emergency stay imposed by the motions panel.2
The emergency motion asserted that the Government had not imposed measures at
Adelanto necessary to counter the developing outbreak. Among other things,
Plaintiffs reported that the detainees in the housing unit with confirmed cases were
being held “two per cell,” less than six feet apart; new detainees were continually
being brought into the facility; and only some of the detainees had been tested for
2 The Government indicated that it opposes the emergency motion.
6 the virus so far. Plaintiffs asked us to clarify that the emergency stay of the district
court’s preliminary injunction did not “deprive[] [the district court] of authority to
order appropriate isolation protocols and a temporary halt to new intakes” in light
of the changed circumstances presented by the current outbreak. Plaintiffs
requested, in the alternative, that we “lift the stay insofar as it prohibits the district
court from responding to the current crisis.” 3
II.
“A plaintiff seeking a preliminary injunction must establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). Where the government is a party to a case in which a
preliminary injunction is sought, the balance of the equities and public interest
factors merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.
2014). Further, where the “balance of hardships . . . tips sharply towards the
plaintiff,” a plaintiff need only show “serious questions going to the merits,” rather
3 Intervening developments notwithstanding, the preliminary injunction is the only order presently before us for review in this appeal. The Government has filed a separate interlocutory appeal of procedural orders relating to bail applications—orders that were entered by the district court months after the preliminary injunction was issued and stayed. We will resolve that separate appeal by future order or opinion.
7 than likelihood of success on the merits, to warrant preliminary injunctive relief.
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)
(quotation marks and citation omitted). Injunctions that alter the status quo “are
not granted unless extreme or very serious damage will result and are not issued in
doubtful cases.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571
F.3d 873, 879 (9th Cir. 2009) (quotation marks omitted).
We review a district court’s decision to grant or deny a preliminary
injunction for abuse of discretion. Sw. Voter Registration Educ. Project v. Shelley,
344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam). We review the district
court’s legal conclusions de novo and its factual findings for clear error. K.W. ex
rel. D.W. v. Armstrong, 789 F.3d 962, 969 (9th Cir. 2015).
A district court’s decision regarding class certification is also reviewed for
abuse of discretion. Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 984
(9th Cir. 2015).
III.
As a threshold matter, the parties dispute whether district courts have
authority to order the types of relief in the preliminary injunction in response to
habeas claims. Specifically, the Government argues that a district court on habeas
review may not order detainee releases or any other injunctive relief to remedy
unconstitutional conditions of confinement. We need not reach that issue to
8 resolve this appeal because, separately from their habeas petition, Plaintiffs
brought a class action complaint for declaratory and injunctive relief seeking to
remedy allegedly unconstitutional conditions at Adelanto. That action for
declaratory and injunctive relief independently provided the district court
jurisdiction to hear Plaintiffs’ challenges and authority to grant the types of relief
that Plaintiffs sought.
Courts have long recognized the existence of an implied equitable cause of
action through which plaintiffs may seek equitable relief to remedy a constitutional
violation. See Sierra Club v. Trump, 963 F.3d 874, 888 (9th Cir. 2020) (“Certain
provisions of the Constitution give rise to equitable causes of action.”) (citing
cases), petition for cert. filed (U.S. Aug. 7, 2020) (No. 20-138). Here, Plaintiffs’
due process claims arise under the Constitution and Plaintiffs invoked 28 U.S.C.
§ 1331, which provides subject matter jurisdiction irrespective of the
accompanying habeas petition. Moreover, an implied cause of action exists for
Plaintiffs to challenge allegedly unconstitutional conditions of confinement. See
Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1230-32, 1236 (10th Cir. 2005)
(observing that “[f]ederal courts have long exercised the traditional powers of
equity, in cases within their jurisdiction, to prevent violations of constitutional
rights,” and holding that federal courts have jurisdiction under 28 U.S.C. § 1331
over federal prisoners’ constitutional claims for injunctive relief against prison
9 officials); see also Ziglar v. Abbasi, 137 S. Ct. 1843, 1862-63 (2017) (noting that,
apart from Bivens or habeas relief, noncitizen detainees could seek injunctive relief
to challenge their conditions of confinement); Bell v. Wolfish, 441 U.S. 520, 526
n.6 (1979) (declining to decide whether habeas is a proper vehicle for pretrial
detainees in federal custody to challenge conditions of confinement because
“jurisdiction would have been provided by 28 U.S.C. § 1331(a)”). Therefore, the
district court had the authority both to entertain Plaintiffs’ constitutional challenges
and to grant injunctive relief in response to them.
Further, the district court’s power to grant injunctive relief included the
authority to order a reduction in population, if necessary to remedy a constitutional
violation. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15
(1971) (“Once a [constitutional] right and a violation have been shown, the scope
of a district court’s equitable powers to remedy past wrongs is broad, for breadth
and flexibility are inherent in equitable remedies.”). In Brown v. Plata, 563 U.S.
493 (2011), for example, the Supreme Court affirmed the conclusion of a three-
judge district court that prison overcrowding had resulted in Eighth Amendment
violations in California prisons, and, because no other relief would cure the
violations, the Court agreed that an order limiting the prison population to a
specific percentage of design capacity, which may have required state officials to
release some prisoners, was an appropriate remedy. Id. at 500-02. Similarly,
10 Plaintiffs here argued that changes in sanitation conditions at Adelanto are
necessary, but not sufficient, to cure the alleged Fifth Amendment violation and
that a reduction in the facility’s population was required for detainee safety. As in
Brown, the district court in this case was permitted to order the reduction of
Adelanto’s population, which may require release of some detainees, if such a
remedy was necessary to cure the alleged constitutional violations.
IV.
We hold that the district court did not abuse its discretion by entering a
preliminary injunction in response to Plaintiffs’ due process claims. The district
court made detailed factual findings in support of the preliminary injunction, none
of which the Government challenged in its brief on appeal as being clearly
erroneous. For instance, the district court accepted as true Plaintiffs’ declarations
and other evidence that the following conditions were present at Adelanto: the
Government had failed to impose social distancing because there were “too many
detainees at Adelanto for its size”; newly arrived detainees were either mixed with
the general population or housed with other new detainees who had arrived at
different times, both of which undermined the ostensible 14-day quarantine period
for new arrivals; staff were not required to wear gloves and masks; there was a lack
of necessary cleaning supplies, resulting in cleaning of communal spaces that was
“haphazard, at best”; there were only three functioning showers for 118 women;
11 there was inadequate access to hand sanitizer because dispensers were often empty
and detainees had to wait for days to receive hand soap; and detainees were forced
to sleep within six feet of each other due to the positions of their beds. In light of
these factual findings, which the Government has not shown to be clearly
erroneous, we agree with the district court that the conditions at Adelanto in April
violated detainees’ due process right to reasonable safety.4
The Fifth Amendment requires the government to provide conditions of
reasonable health and safety to people in its custody. See DeShaney v. Winnebago
County Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989); Doe v. Kelly, 878 F.3d
710, 714 (9th Cir. 2017). The government has violated this duty when “(i) [it]
made an intentional decision with respect to the conditions under which the
plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of
suffering serious harm; (iii) the [government] did not take reasonable available
measures to abate that risk, even though a reasonable official in the circumstances
would have appreciated the high degree of risk involved . . . ; and (iv) by not
4 Plaintiffs pursue two related Fifth Amendment due process theories. The first argues that the conditions at Adelanto are unconstitutionally punitive, see Bell v. Wolfish, 441 U.S. 520, 535-37 (1979), whereas the second argues that the Government violated Plaintiffs’ right to reasonable safety while in the Government’s custody, see DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989). Because we hold that the district court was justified in granting preliminary relief based on the “reasonable safety” theory, we do not address the merits of the “punitive conditions” theory here.
12 taking such measures, the [government] caused the plaintiff’s injuries.” Gordon v.
County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). “With respect to the third
element, the [government’s] conduct must be objectively unreasonable, a test that
will necessarily ‘turn[] on the facts and circumstances of each particular case.’”
Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc)
(second alteration in original) (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397
(2015)).
We agree with the district court that the Government likely failed to meet its
constitutional duty to provide reasonably safe conditions to Plaintiffs. At the time
the injunction issued, Adelanto was a facility so crowded that social distancing to
combat the spread of the novel coronavirus was impossible, detainees had
inadequate access to masks, guards were not required to wear masks, there was not
enough soap or hand sanitizer to go around, detainees were responsible for
cleaning the facility with only dirty towels and dirty water, and detainees were
compelled to sleep with less than six feet of distance between them. The
Government was aware of the risks these conditions posed, especially in light of
high-profile outbreaks at other carceral facilities that had already occurred at the
time, and yet had not remedied the conditions. Its inadequate response was
objectively unreasonable. The district court therefore rightly concluded that
Plaintiffs were likely to prevail on the merits. Cf. Helling v. McKinney, 509 U.S.
13 25, 35 (1993) (holding that the health risk posed by a prison inmate’s involuntary
exposure to second-hand smoke could form the basis of a claim that the
government was violating his right to reasonable safety).5 The district court was
also correct in its conclusion that Plaintiffs were likely to suffer irreparable harm
absent relief given COVID-19’s high mortality rate. Finally, the district court
5 We recognize that our sister circuits have reached differing conclusions when presented with cases about COVID-19 risks in carceral settings. Compare Mays v. Dart, --- F.3d ---, 2020 WL 5361651, at *1, *9 (7th Cir. 2020) (affirming in part a preliminary injunction that mandated sanitation measures and mask availability in a county jail), and Valentine v. Collier, 960 F.3d 707, 708 (5th Cir. 2020) (per curiam) (Davis, J., concurring in the judgment) (noting that “inmates are now being held under circumstances that seriously threaten their life”), and id. (Graves, J., specially concurring) (noting that the inmates were likely to succeed on the merits of their constitutional challenge to conditions of confinement), with Wilson v. Williams, 961 F.3d 829, 840-41 (6th Cir. 2020) (holding that inmates were unlikely to prevail on their deliberate indifference claim), and Swain v. Junior, 958 F.3d 1081, 1089 (11th Cir. 2020) (holding that pretrial detainees were unlikely to prevail on a deliberate indifference claim). Some of these cases arose in the context of criminal detention, and thus the deliberate indifference claims there, unlike due process challenges to civil detention conditions, required an analysis of prison officials’ subjective intent to harm. E.g., Wilson, 961 F.3d at 840 (holding that while the objective prong was “easily satisfied,” the subjective prong would likely prevent plaintiffs’ success on the merits because officials responded reasonably). Moreover, each case must be evaluated on the specific factual record compiled by the district court because “objective reasonableness turns on the facts and circumstances of each particular case.” Kingsley, 576 U.S. at 397 (quotation marks and citation omitted). Here, the district court made specific factual findings that supported its conclusion that plaintiffs would likely succeed on the merits and that they would likely suffer irreparable harm. Cf. Hope v. Warden York County Prison, --- F.3d ---, 2020 WL 5001785, at *13 (3d Cir. 2020) (critiquing lack of “specific findings”); id. at *4 (critiquing district court for not permitting the government to offer evidence or giving it an opportunity to be heard before ordering injunctive relief).
14 rightly concluded that the equities tipped in Plaintiffs’ favor, particularly in light of
the lack of criminal records of many of the detainees and the alternative means
available to prevent their absconding if they were released, such as electronic
monitoring.
We further hold that the district court did not err by provisionally certifying
a class of all Adelanto detainees. The alleged due process violations exposed all
Adelanto detainees to an unnecessary risk of harm, not just those who are release-
eligible or uniquely vulnerable to COVID-19. The preliminary injunction afforded
class-wide relief that would have remedied the constitutional violations as to all
detainees, even though it would have entailed the release or transfer of only some
of the detainees. The district court did not abuse its discretion in holding that
Plaintiffs had satisfied the commonality, adequacy, and typicality requirements of
Federal Rule of Civil Procedure 23(a) and the uniform remedy requirement of Rule
23(b)(2).6 See Parsons v. Ryan, 754 F.3d 657, 689 (9th Cir. 2014) (affirming class
certification under Rule 23(b)(2) for an Eighth Amendment challenge to inmate
medical care policies and explaining that “although a presently existing risk may
ultimately result in different future harm for different inmates—ranging from no
harm at all to death—every inmate suffers exactly the same constitutional injury
6 Defendants do not contest numerosity.
15 when he is exposed to a single statewide . . . policy or practice that creates a
substantial risk of serious harm,” id. at 678); cf. Brown v. Plata, 563 U.S. 493, 502
(2011) (affirming a class-wide injunction imposing a “court-mandated population
limit” in state prisons to remedy Eighth Amendment violations due to “severe and
pervasive overcrowding,” which would require the release of only some inmates).
VI.
Although we affirm the portions of the preliminary injunction order
concluding that the district court possesses the power to grant injunctive relief and
that Plaintiffs are likely to prevail on the merits of their due process claims, we
nonetheless vacate the provisions of the preliminary injunction that ordered
specific measures to be implemented at Adelanto. The district court tailored those
measures to respond to the circumstances at Adelanto as of mid-April. In the
intervening five months, those circumstances have changed dramatically. For
example, it now appears that Adelanto houses only 748 detainees, significantly
fewer than the 1,370 detainees it held when the district court issued its preliminary
injunction. More pressingly—and despite the reduced population level—the
facility is experiencing a COVID-19 outbreak, which was not the case when the
preliminary injunction issued. In response to the outbreak described in the
emergency motion, it seems the Government is now in the process of testing all
Adelanto detainees for COVID-19, and it has also purportedly adjusted its
16 procedures for “cohort[ing]” detainees within the last 48 hours. In short, the facts
that motivated the district court’s preliminary injunction no longer reflect the
current realities at Adelanto. The district court may have received further medical
expert testimony or other evidence during the intervening months as well.
The conditions at Adelanto appear to be evolving rapidly. Unlike our court,
the district court has been continually apprised of developments at the facility and
is better situated to assess what relief current conditions may warrant. We
therefore decline to speculate about which provisions of the preliminary injunction
should still apply. We vacate the provisions of the injunction ordering specific
reductions in the detainee population and specific changes in conditions at the
facility and remand to the district court for further proceedings consistent with this
disposition and with the latest facts. See Valentine v. Collier, 960 F.3d 707, 707
(5th Cir. 2020) (per curiam) (vacating preliminary injunction based on changed
circumstances); id. at 707 (Davis, J., concurring in the judgment) (concurring
“because conditions have dramatically changed in the prison since the preliminary
injunction issued, and vacating the preliminary injunction allows the district court
to expeditiously conduct factfinding to determine what relief is necessary under the
current circumstances”).
We make some observations for the district court to consider on remand.
First, we reiterate that the district court possesses broad equitable authority to
17 remedy a likely constitutional violation. If the district court determines, based on
current facts, that particular measures are necessary to ensure that conditions at
Adelanto do not put detainees at unreasonable risk of serious illness and death, it
may require such measures. The district court may, for example, require the
provision of sufficient cleaning supplies and hand sanitizer, or a reduction in the
population to a level that would allow for six-foot social distancing, if it concludes
those actions are necessary to bring the conditions to a constitutionally adequate
level. And, of course, the district court has authority to remedy a constitutional
violation by ordering measures that it determines are necessary to counter the
spread of an outbreak, including mandating medical isolation of detainees who
have tested positive for COVID-19 or who are awaiting test results, and imposing a
temporary moratorium on Adelanto’s receiving new detainees.
Second, although our court previously stayed the district court’s preliminary
injunction except to the extent it required compliance with the CDC’s guidelines
for correctional and detention facilities, we think developments since the stay have
made clear that those guidelines do not provide a workable standard for a
preliminary injunction. The guidance document spans 25 pages and makes
hundreds of recommendations, many of which lack specificity. More
fundamentally, it contains key caveats, such as that its recommendations “may
need to be adapted based on individual facilities’ physical space, staffing,
18 population, operations, and other resources and conditions.” Given the vagueness
of that caveat, it is no surprise that the parties strongly disagree on whether the
Government was complying with the CDC guidance even before this case was
filed and have continued to disagree about what the CDC guidance means. The
guidance document’s lack of specificity makes it a poor guidepost for mandatory
injunctive relief. See Fed. R. Civ. P. 65(d)(1)(B), (C) (an injunction must “state its
terms specifically” and “describe in reasonable detail—and not by referring to the
complaint or other document—the act or acts restrained or required”).
Third, the district court should, to the extent possible, avoid imposing
provisions that micromanage the Government’s administration of conditions at
Adelanto. Certain provisions in the preliminary injunction—such as the
requirement that specific areas be cleaned “by a professionally trained cleaning
staff,” rather than by detainees or facility employees with a mix of duties—wade
into facility administration at a granular level beyond what is required to remedy
the constitutional violation identified. These types of considerations are better left
to the “professional expertise of corrections officials.” Bell v. Wolfish, 441 U.S.
520, 540 n.23 (1979).
Fourth, any new provisions of future injunctive relief should stem from
medical evidence properly before the court. The district court should refrain from
relying on declarations filed in other litigation, as it did when it ordered that
19 sleeping rooms or cells that contained toilets lacking integrated lids be limited to
one person. Cf. Hope v. Warden York County Prison, --- F.3d ---, 2020 WL
5001785, at *9-10 (3d Cir. 2020) (criticizing reliance on evidence from prior case).
Finally, the injunction should, to the extent possible, reflect the scientific
evidence about COVID-19 presented to the district court. For example, the
preliminary injunction, as originally drafted, seemed to mandate that Adelanto staff
must wear a mask even when working alone in an office, far away from detainees.
We see no evidence in the current record that suggests wearing a mask in this
specific situation would reduce COVID-19 transmission. If the district court
determines on remand that scientific evidence supports ordering this measure, it
should clearly identify the relevant evidence.
VII.
Based on the foregoing, the preliminary injunction order is affirmed in part
and vacated in part, and the case is remanded for further proceedings consistent
with this disposition. Because the substantive provisions of the preliminary
injunction are vacated, we dissolve forthwith the stay pending appeal of that order,
and we deny Plaintiffs’ emergency motion as moot. See Consejo de Desarrollo
Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1174 n.7 (9th Cir.
2007).
20 FILED SEP 23 2020 Hernandez Roman v. Wolf, No. 20-55436 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MILLER, Circuit Judge, concurring in part and concurring in the judgment:
I concur in the court’s judgment in full, and I join all of its order except for
Part IV. In that part, the court concludes, based on the record that was before the
district court when it issued the preliminary injunction order in April, that “the
Government likely failed to meet its constitutional duty to provide reasonably safe
conditions to Plaintiffs.” Slip op. 14. The situation at Adelanto has changed
considerably since April, and our decision to remand this case will allow the
district court to determine, based on a new record, whether the government’s
response has fallen short of constitutional standards. I therefore would not opine on
the issues addressed in Part IV.