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Case Name Doe v. Johnson [later Kelly, Nielsen] IM-AZ-0021
Docket / Court 4:15-cv-00250-DCB ( D. Ariz. )
State/Territory Arizona
Case Type(s) Immigration and/or the Border
Special Collection Post-WalMart decisions on class certification
Attorney Organization ACLU Chapters (any)
ACLU National (all projects)
American Immigration Council's Legal Action Center
Lawyers Comm. for Civil Rights Under Law
National Immigration Law Center
Case Summary
This is a class action about conditions of confinement in the "hold rooms" used by the U.S. Customs and Border Protection (CBP) for short-term detention of noncitizens apprehended near the border. The case deals with all the hold rooms in the Tucson Sector, which consists of nine "stations" ... read more >
This is a class action about conditions of confinement in the "hold rooms" used by the U.S. Customs and Border Protection (CBP) for short-term detention of noncitizens apprehended near the border. The case deals with all the hold rooms in the Tucson Sector, which consists of nine "stations" covering most of Arizona and accounted for 18% of all border patrol apprehensions along the U.S.-Mexico border in 2014. Most recently, the District Court entered a comprehensive opinion finding conditions unconstitutional.

On June 8, 2015, civil detainees confined in a U.S. Customs and Border Protection (CBP) "hold room" within the Tucson Sector of the U.S. Border Patrol filed this class-action lawsuit in the U.S. District Court for the District of Arizona, alleging violations of the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act (APA). All plaintiffs were apprehended at or near the U.S. border with Mexico and then detained. The plaintiffs, represented by attorneys from the ACLU, the National Immigration Law Center, the Lawyers' Committee for Civil Rights, and the law firm Morrison & Foerster, sought declaratory and injunctive relief, alleging that they were subjected to inhumane and punitive conditions while being detained in holding cells.

As expedited discovery proceeded, plaintiffs moved in August 2015 for sanctions against defendants, asserting that defendants had violated discovery rules by destroying critical video evidence of unconstitutional conditions of confinement in the Tucson Sector CBP facilities. On Sept. 28, 2015, Judge Bury granted plaintiffs' motion for sanctions in part. He found that defendants had caused spoliation of evidence and created prejudice against plaintiffs, because the destroyed videos contained the only visual evidence of conditions of confinement in these facilities. Consequently, Judge Bury ordered that defendants immediately produce all existing and retained video evidence of detainee holding areas that were the subject of this case. 2015 WL 13021467 (D. Ariz. 2015).

On December 4, 2015, Plaintiffs filed a motion for a preliminary injunction, seeking an immediate order for improved conditions in the hold rooms. Briefing on the motion was stayed for a short time until the resolution of the class action and motion to dismiss issues.)

On Jan. 11, 2016, Judge Bury certified the case as a class action. The class consisted of all individuals who at that time or in the future were detained for one or more nights at a Tuscon Sector CBP facility. 163 F.Supp.3d 630 (D. Ariz. 2016). (A few weeks later, Judge Bury shifted the wording slighting, ordering that "one or more nights" be understood to mean "more than 8 hours within the same calendar day." And on June 27, 2016, Judge Bury again amended the Jan. 11 order certifying the class, to include all individuals at that time or in the future who were detained at a Tuscon Sector CBP facility (regardless of duration). 2016 WL 8199309 (D. Ariz. 2016).

The same day as he granted certification of the class, Judge Bury issued another order granting in part and denying in part defendants' motion to dismiss, so that plaintiffs' APA claims were dismissed (on grounds that the challenged CBP conduct was not "final agency action") but so that plaintiffs' constitutional claims remained. 2016 WL 3484403 (D. Ariz. 2016).

Once the class was certified and the motion to dismiss denied, briefing continued on plaintiffs' request for a preliminary injunction.

Defendants sought to seal various court documents, but Phoenix Newspapers, Inc., moved to intervene for the limited purpose of opposing that motion. Judge Bury granted intervention on June 26, 2016, holding that the public interest in access to the record outweighed the defendants' rationale for keeping the documents sealed. Rejecting the defendants' general reasons based on privacy and law enforcement, Judge Bury asked the defendants for a more specific showing of harm from the disclosure of any document not already covered by a protective order, and ordered the unsealing of several documents.

The preliminary injunction issue finally got to a hearing on Nov. 14-15, 2016; on Nov. 18, Judge Bury granted a preliminary injunction. He found that plaintiffs had established a likelihood of success on the merits of their constitutional claims, because violation of a constitutional right would constitute irreparable injury. Judge Bury stated that if defendants held detainees long enough for detainees to need to sleep, then defendants must maintain conditions of confinement adequate for the detainees' physical needs during that time (as there was no security rationale overriding this obligation). 2016 WL 8188563 (D. Ariz. 2016). Defendants moved for reconsideration on Dec. 2, which Judge Bury denied on Jan. 3, 2017. He did, though, clarify that the twelve-hour confinement period began when a detainee arrived at a CBP station. 2017 WL 467238 (D. Ariz. 2017).

On Jan. 9, 2017, plaintiffs moved for sanctions against defendants for civil contempt, alleging violation of the court's Aug. 14, 2015, and Sept. 28, 2015, orders mandating that defendants produce relevant video evidence. Plaintiffs alleged that defendants had failed to preserve from destruction videos of the Tucson Center hold rooms, and had failed to inform plaintiffs or the Court of this problem. Defendants responded on Feb. 3.

On Mar. 2, 2017, both parties filed notices to appeal to the 9th Circuit Court of Appeals, from Judge Bury's Nov. 18, 2016, and Jan. 3, 2017, orders. The 9th Circuit, on Mar. 3, opened two new dockets, Nos. 17-15381 and 17-15383, and set a briefing schedule. The 9th Circuit then set a mediation hearing for Mar. 20, but on that date, the Court declined to include the case in its mediation program.

Back in the District Court, on Mar. 13, 2017, Judge Bury granted in part and denied in part plaintiffs' Jan. 9, 2017 motion for sanctions against defendants for civil contempt. Judge Bury found that defendants had failed to take all reasonable steps within their power to preserve video evidence. While some violations were not good-faith or reasonable interpretations of court orders, other violations were merely technical or de minimis. Judge Bury ordered defendants to improve certain aspects of their data archiving, to meet with plaintiffs about their progress, and to pay plaintiffs' attorneys' fees and costs incurred in connection with this data discovery. Defendants responded on Mar. 20, stating that they were now either in compliance or on track to being in compliance with all requirements of the Court's Mar. 13 order.

In the 9th Circuit Court of Appeals, on Mar. 30, 2017, plaintiffs filed their brief on cross-appeal. Plaintiffs acknowledged that the District Court had correctly recognized the detainees' due process rights to medical care, beds, and personal hygiene. Nevertheless, plaintiffs argued, the District Court had erred as a matter of law by allowing CBP to deny detainees medical screenings and prescriptions by trained personnel, to deprive detainees of beds when held overnight, and to provide merely body wipes in lieu of showers. Defendants submitted their brief on cross-appeal on Apr. 27. They argued that the detainees' due process rights did not include sleeping mats for all detainees after twelve hours, and that the District Court had not abused its discretion in the terms of the preliminary injunction, considering the unique challenges faced by the Tuscon Sector Border Patrol. Plaintiffs filed another brief on cross-appeal on May 25, and the defendants filed a reply brief on June 8. The 9th Circuit (Judges Tallman, Callahan, and Ezra) held oral argument on Oct. 16.

In the District Court, on Apr. 13, 2017, defendants followed up on the Mar. 13 civil contempt order. Defendants informed Judge Bury of potential corruption and gaps in relevant video recordings, and maintained that these were good-faith errors and that defendants were working to fix them.

Also on Apr. 13, defendants moved to stay the District Court proceedings until the 9th Circuit ruled on the parties' cross-appeals of the District Court's preliminary injunction order. On May 25, 2017, Judge Bury granted in part and denied in part the motion to stay. Only expert discovery was stayed, while all other discovery was to proceed. Judge Bury stated:
The hardship and inequity falls decidedly on the Plaintiffs. Staying this discovery, suspends not only resolution of the case but puts the Plaintiff at an evidentiary disadvantage. It creates a chronic state of evidentiary suspension, with any end in sight being totally dependent on the Government’s ability to correct a problem which it has been unable or unwilling to correct for over a year.
On Dec. 22, 2017, the Ninth Circuit (Judges Tallman, Callahan, and Ezra) affirmed the District Court's Nov. 18 preliminary injunction order. (The order had required defendants to provide detainees after 12 hours with mats and blankets, but not beds, showers, or medical care provided by medical professionals.) The opinion, written by Judge Callahan, found that the District Court had not abused its discretion in the limited preliminary injunction. According to the opinion, the District Court had broad discretion to craft this remedy to balance the detainees' constitutional rights with the government's interests. 2017 WL 6545103.

On Feb. 5, 2018, plaintiffs petitioned the Ninth Circuit for a rehearing en banc. Plaintiffs argued that the Ninth Circuit's Dec. 22 decision conflicted with prior decisions of that court and the Supreme Court on (1) whether civil detainees' right to adequate medical care encompasses a right to screening conducted by properly trained individuals supervised by medical professionals, and (2) whether, having found the existence of constitutional violations, a district court may decline to fully remedy them based on government expense. However, on Mar. 13, the Ninth Circuit denied the rehearing petition. The Ninth Circuit mandate issued, putting into effect the judgment of its Dec. 22 decision.

On May 4, 2018, plaintiffs filed a sealed proposed motion for partial summary judgment. The clerk was to file the motion if the plaintiffs' motion to seal is granted. Throughout the rest of 2018, the parties litigated what evidence would be permitted in the motion for summary judgment and whether exhibits would be sealed. When this was resolved (by an order granting in part and denying in part the defendants' motion to seal) the clerk filed the plaintiffs' motion for partial summary judgment.

The plaintiffs sought summary judgment on the issue of defendants' obligation to provide beds. The plaintiffs asserted that civil pretrial detainees must be provided beds or matresses raised off of the floor if held for any period requiring sleep and that "anything less, including floor mats, is a violation of their Fifth Amendment Due Process rights.” Further, plaintiffs argued that the use of floor mats led to overcrowding and unsanitary conditions that are “reprehensible and dehumanizing.” Plaintiffs contended that there are no disputed facts precluding partial summary for their claim that civil detainees are constitutionally entitled to beds.

On March 15, 2019, Judge Bury issued an order denying the plaintiffs' motion for partial summary judgment. Judge Bury held that Ninth Circuit case law does not support plaintiffs' request for judgment as a matter of law that providing floor mats rather than raised beds is an unconstitutional practice. Judge Bury concluded the court was to consider the severity and duration of the conditions, along with the operational needs of the detention facility, to determine whether these conditions constituted objective deprivation of the constitutional right to humane shelter. Judge Bury determined that this was a fact-intensive inquiry and could not be properly made on the summary judgment record.

Bury ordered a 13-day bench trial set for January 13, 2020. For the remainder of 2019, the parties litigated various issues in preparation for trial. Beginning on January 13, 2020, the parties participated in a seven-day bench trial. On February 19, 2020, Judge Bury issued the court's finding of fact and conclusions of law, finding in favor of plaintiffs and against the defendants. Judge Bury concluded that the defendants' holding facilities were designed for short-term holds, "lasting hours not days." Judge Bury found that the conditions of extended confinement in defendants' holding facilities were "substantially worse than detainees face upon commitment to either a civil immigration detention facility or even a criminal detention facility, like a jail or prison." Accordingly, Judge Bury concluded that extended confinement in these facilities did not advance the government's legitimate interest in immigration enforcement and resulted in conditions, including detainees' inability to sleep for several nights, that were "presumptively punitive" and violated the Constitution.

Based on these conclusions and finding of fact, Judge Bury issued an order enjoining defendants from holding detainees considered to be "processing complete" for longer than 48 hours unless defendants provide "conditions of confinement that meet basic human needs for sleeping in a bed with a blanket, a shower, food that meets acceptable dietary standards, potable water, and medical assessments performed by a medical professional." Judge Bury adopted a "no longer than 48 hour" rule to accommodate logistic difficulties of transporting detainees after they are processed. Judge Bury maintained that anything beyond 48 hours forced CBP perform the role of other civil immigration detention agencies and thus required it to provide the conditions of confinement standard at the facilities of other agencies.

As of February 21, 2020, the parties are finalizing the order for permanent injunction.

Frances Hollander - 10/04/2015
Ava Morgenstern - 03/19/2018
Aaron Gurley - 02/24/2020


compress summary

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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Content of Injunction
Preliminary relief granted
Defendant-type
Law-enforcement
General
Access to lawyers or judicial system
Assault/abuse by staff
Bathing and hygiene
Conditions of confinement
Confinement/isolation
Food service / nutrition / hydration
Over/Unlawful Detention
Placement in detention facilities
Sanitation / living conditions
Immigration/Border
Border police
Constitutional rights
Detention - conditions
Undocumented immigrants - rights and duties
Medical/Mental Health
Medical care, general
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Ex parte Young (federal or state officials)
Defendant(s) U.S. Border Patrol
U.S. Customs and Border Protection
U.S. Department of Homeland Security
Plaintiff Description Detainees in the Tucson sector of Customs and Border Protection.
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU National (all projects)
American Immigration Council's Legal Action Center
Lawyers Comm. for Civil Rights Under Law
National Immigration Law Center
Class action status sought Yes
Class action status granted Yes
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Filed 2015
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Challenging Unconstitutional Conditions in CBP Detention Facilities
www.americanimmigrationcouncil.org
Date: Jun. 12, 2017
By: American Immigration Council
[ Detail ] [ External Link ]

  Doe v. Johnson: Challenge to Deplorable Detention Conditions in U.S. Customs & Border Protection Facilities
www.nilc.org
Date: Sep. 1, 2016
By: National Immigration Law Center (NILC)
[ Detail ] [ External Link ]

  Unconstitutional Conditions in CBP Detention Facilities Challenged in Class Action Lawsuit
www.lccr.com
Date: Jun. 8, 2015
By: Lawyers’ Committee for Civil Rights of the San Francisco Bay Area
[ Detail ] [ External Link ]

  Doe v. Johnson
www.acluaz.org
Date: Jun. 8, 2015
By: American Civil Liberties Union (ACLU) of Arizona
[ Detail ] [ External Link ]

Docket(s)
4:15-cv-00250-DCB (D. Ariz.)
IM-AZ-0021-9000.pdf | Detail
Date: 02/26/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Declaratory and Injunctive Relief - Class Action [ECF# 1]
IM-AZ-0021-0001.pdf | Detail
Date: 06/08/2015
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Motion for Class Certification; Memorandum of Points and Authorities [ECF# 4]
IM-AZ-0021-0002.pdf | Detail
Date: 06/08/2015
Source: PACER [Public Access to Court Electronic Records]
Order (2015 WL 5086291) (D. Ariz.)
IM-AZ-0021-0020.pdf | WESTLAW | Detail
Date: 08/14/2015
Source: Westlaw
Plaintiffs' Motion for Sanctions [ECF# 56]
IM-AZ-0021-0003.pdf | Detail
Date: 08/28/2015
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 64] (2015 WL 13021467) (D. Ariz.)
IM-AZ-0021-0004.pdf | WESTLAW | Detail
Date: 09/28/2015
Source: PACER [Public Access to Court Electronic Records]
Order Approving Stipulation and Protective Order [ECF# 68] (D. Ariz.)
IM-AZ-0021-0005.pdf | Detail
Date: 10/01/2015
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 117] (163 F.Supp.3d 630) (D. Ariz.)
IM-AZ-0021-0006.pdf | WESTLAW| LEXIS | Detail
Date: 01/11/2016
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 118] (163 F.Supp.3d 630) (D. Ariz.)
IM-AZ-0021-0007.pdf | WESTLAW| LEXIS | Detail
Date: 01/11/2016
Source: PACER [Public Access to Court Electronic Records]
Motion of Phoenix Newspapers, Inc. to Intervene for the Limited Purpose of Opposing Defendants' Motion to Seal and Securing an Order to Unseal Court Records [ECF# 124]
IM-AZ-0021-0008.pdf | Detail
Date: 01/28/2016
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 127] (D. Ariz.)
IM-AZ-0021-0009.pdf | Detail
Date: 02/04/2016
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Reply in Support of Motion for Preliminary Injunction [ECF# 145]
IM-AZ-0021-0010.pdf | Detail
Date: 03/10/2016
Source: PACER [Public Access to Court Electronic Records]
Order Amending Class Definition [ECF# 173] (2016 WL 8199309) (D. Ariz.)
IM-AZ-0021-0012.pdf | WESTLAW | Detail
Date: 06/27/2016
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 186] (2016 WL 8199308) (D. Ariz.)
IM-AZ-0021-0013.pdf | WESTLAW | Detail
Date: 07/21/2016
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 189] (D. Ariz.)
IM-AZ-0021-0014.pdf | Detail
Date: 08/02/2016
Source: PACER [Public Access to Court Electronic Records]
Brief in Support of Plaintiffs' Motion for Preliminary Injunction [ECF# 206]
IM-AZ-0021-0015.pdf | Detail
Date: 08/17/2016
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 244] (2016 WL 8188563) (D. Ariz.)
IM-AZ-0021-0016.pdf | WESTLAW | Detail
Date: 11/18/2016
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 261] (2017 WL 467238) (D. Ariz.)
IM-AZ-0021-0017.pdf | WESTLAW | Detail
Date: 01/03/2017
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Motion for Civil Contempt [ECF# 265]
IM-AZ-0021-0018.pdf | Detail
Date: 01/09/2017
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 285] (D. Ariz.)
IM-AZ-0021-0019.pdf | Detail
Date: 03/13/2017
Source: PACER [Public Access to Court Electronic Records]
Brief for Plaintiffs-Appellants-Cross-Appellees [Ct. of App. ECF# 15]
IM-AZ-0021-0021.pdf | Detail
Date: 03/30/2017
Source: PACER [Public Access to Court Electronic Records]
Defendants-Appellees-Cross-Appellants' Brief [Ct. of App. ECF# BL-32]
IM-AZ-0021-0028.pdf | Detail
Date: 04/27/2017
Source: PACER [Public Access to Court Electronic Records]
Response and Reply Brief for Plaintiffs-Appellants-Cross-Appellees [Ct. of App. ECF# BL-21]
IM-AZ-0021-0026.pdf | Detail
Date: 05/25/2017
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 298] (D. Ariz.)
IM-AZ-0021-0022.pdf | Detail
Date: 05/25/2017
Source: PACER [Public Access to Court Electronic Records]
Defendants-Appellees-Cross-Appellants' Reply Brief [Ct. of App. ECF# BL-29]
IM-AZ-0021-0027.pdf | Detail
Date: 06/08/2017
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# BL-44] (2017 WL 6545103)
IM-AZ-0021-0029.pdf | WESTLAW | Detail
Date: 12/22/2017
Source: PACER [Public Access to Court Electronic Records]
Petition for Panel Rehearing on Rehearing en Banc
IM-AZ-0021-0030.pdf | Detail
Date: 02/05/2018
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 383] (2019 WL 1227217) (D. Ariz.)
IM-AZ-0021-0031.pdf | WESTLAW | Detail
Date: 03/15/2019
Source: PACER [Public Access to Court Electronic Records]
Findings of Fact and Conclussions and Law [ECF# 482] (2020 WL 813774) (D. Ariz.)
IM-AZ-0021-0032.pdf | WESTLAW | Detail
Date: 02/19/2020
Source: PACER [Public Access to Court Electronic Records]
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Judges Bury, David C. (D. Ariz.) show/hide docs
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Callahan, Consuelo Maria (Ninth Circuit) show/hide docs
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Bernwanger, Bree (California) show/hide docs
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de Ganon, Pieter S show/hide docs
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Della-Piana, Elisa (California) show/hide docs
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Douglas, John Sebastiano (California) show/hide docs
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Esposito, Robert (California) show/hide docs
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Huerta, Alvaro M. (California) show/hide docs
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Sheffield, Carlton F. (District of Columbia) show/hide docs
IM-AZ-0021-9000
Shieh, Woei-Tyng Daniel (District of Columbia) show/hide docs
IM-AZ-0021-9000
Silvis, William C. (District of Columbia) show/hide docs
IM-AZ-0021-9000
Vuong, Sarah Lake (District of Columbia) show/hide docs
IM-AZ-0021-9000
Other Lawyers Bodney, David Jeremy (Arizona) show/hide docs
IM-AZ-0021-0008 | IM-AZ-0021-9000

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