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Case Name Zepeda Rivas v. Jennings IM-CA-0162
Docket / Court 3:20-cv-02731 ( N.D. Cal. )
State/Territory California
Case Type(s) Immigration and/or the Border
Special Collection COVID-19 (novel coronavirus)
Attorney Organization ACLU Chapters (any)
ACLU of Northern California
ACLU of Southern California
Lawyers Comm. for Civil Rights Under Law
Case Summary
COVID-19 Summary: This is a class-action lawsuit brought on April 20, 2020, by seven individuals in immigration detention at the Mesa Verde Detention Facility (MVDF) and the Yuba County Jail (YCJ), seeking immediate release from unsafe conditions of the jail in light of the global coronavirus ... read more >
COVID-19 Summary: This is a class-action lawsuit brought on April 20, 2020, by seven individuals in immigration detention at the Mesa Verde Detention Facility (MVDF) and the Yuba County Jail (YCJ), seeking immediate release from unsafe conditions of the jail in light of the global coronavirus pandemic. The court granted the request for TRO on April 29, requiring ICE to provide information and access to detainees to facilitate a process of considering bail requests. On June 9, the court granted the motion for preliminary injunction and ordered the defendants to maintain the status quo while the case was pending. On August 5, the plaintiffs sought a TRO, claiming that the defendants' actions are insufficient, which was granted the next day.


On April 20, 2020, seven noncitizens detained at the Mesa Verde Detention Facility (MVDF) and the Yuba County Jail (YCJ) filed this class-action lawsuit against Immigration and Customs Enforcement (ICE), seeking immediate release from what they said were unsafe jail conditions in light of the global coronavirus pandemic. Represented by the ACLU of Northern California and Southern California, the San Francisco Public Defender’s Office, Lawyers’ Committee for Civil Rights, and private attorneys, the plaintiffs brought this lawsuit as a habeas petition under 28 U.S.C. under § 2241, and as a declaratory action under 42 U.S.C. § 2201-02. They alleged that their detention violated the Administrative Procedure Act, and their Fifth and First Amendment rights by subjecting them to a serious risk of contracting COVID-19. The plaintiffs sought a declaratory judgment and injunctive relief for the release of detainees in order to maintain a number of detainees for social distancing and prohibition against placing plaintiff class members into solitary confinement as a means of achieving social distancing, as well as attorney fees.

The case was filed in the U.S. District Court for the Northern District of California and initially assigned to Magistrate Judge Sallie Kim, then reassigned to Judge Vince Chhabria.

Concurrently with filing, plaintiffs sought class certification and a temporary restraining order to release a sufficient number of putative class members in order to allow for social distancing. The proposed class consisted of all civil immigration detainees at Mesa Verde and YCJ, with two subclasses: the “YCJ Subclass” and the “Mesa Verde Subclass.”

Plaintiffs are detainees in custody of ICE, many of whom with a high risk of COVID-19 due to underlying medical conditions. However, the conditions they faced during detention had become so dire that detainees at Mesa Verde organized a hunger strike to call attention to the lack of hygiene products, proper testing, and continued foot traffic in and out of the facility. In response to the hunger strike, GEO Group, the ICE contractor that runs the facility, threatened to revoke their access to purchases from the commissary.

On April 25, the defendants moved to stay these proceedings in light of a separate case, Fraihat v. ICE (here in this Clearinghouse) in which a federal judge had just certified a nationwide class of immigration detainees challenging ICE’s overall response to the pandemic. In this case, the court denied the defendant’s motion to stay on April 29, and granted the plaintiffs’ motion for class certification and motion for a temporary restraining order, requiring ICE to provide information and access to detainees to facilitate a process of considering bail requests. 2020 WL 2059848.

On May 27, the defendants sought an order that would:
-Confirm the TRO had expired;
-End the ongoing bail process;
-Vacate all bail orders; and,
-Deny the plaintiff's motion for a preliminary injunction.
Two days later, the plaintiffs filed a brief opposing the expiration of the TRO.

On June 9, the district court granted the motion for preliminary injunction. 2020 WL 3055449. The court found that although significant improvements had been made since the TRO, ICE had only made the safety improvements because it was ordered to do so. Therefore, the court found a preliminary injunction necessary to lock in place the safety improvements made. The defendants were ordered to maintain the status quo while the case was pending.

A status conference was held on June 19, and the court ordered the defendant to file a status report by June 22, regarding their planned response to the discovery that a member of the medical staff at Mesa Verde tested positive for COVID-19. ICE was ordered to respond to the plaintiff's discovery requests on an expedited basis by June 26.

The defendant submitted status reports on June 22 and 25, reporting that the nurse is in self-isolation. Detainees who had exposure to the nurse tested negative.

On June 29, the defendants reported that they will be implementing COVID-19 testing for all new arrivals on or about June 29 with a new Rapid RNA testing that allows for same-day results. They further reported that training for the medical staff and testing of the new equipment began the week of June 22.

The same day, the defendants appealed to the Ninth Circuit, and the Ninth Circuit ordered mediation on July 8.

On August 5, the plaintiffs moved for a TRO directing defendants to conduct rapid testing of all class members, clear a dorm to isolate all class members who are testing positive for COVID-19, and observe the limits on increased population in the remaining dorms as set out by the preliminary injunction order. The plaintiffs claimed that the defendants failed to take meaningful steps to halt an outbreak of COVID-19, and added more class members to
MVDF than they released, increasing the density while the outbreak spread. They pointed out that the defendants also left symptomatic class members in their dorms to potentially infect other people, leading to more positive cases. In the motion, the plaintiffs alleged that "MVDF has failed to implement widespread testing of detainees and staff not because the facility lacks the resources to do so but precisely because MVDF has not developed a workable strategy for facilitating the isolation and cohorting that appropriately responding to many test results would require . . . In other words, widespread testing has not been done because Defendants fear they would not be able to handle the truths that it would reveal."

On August 6, the court granted the TRO, stating that "[t]he defendants, having responded to the health crisis in such a cavalier fashion (even in the face of litigation and a string of court orders), have lost the credibility to complain that the relief requested by the plaintiffs is too rigid or burdensome. The defendants have also lost the right to be trusted that they will accomplish on their own what the plaintiffs contend requires a court order to ensure." 2020 WL 4554646. They were ordered to administer a Covid-19 test that returns rapid results to all detainees at the facility for each week at a minimum, maintain the current practice of not admitting new class members to the facility, maintain a dormitory to segregate detainees who test positive for Covid-19, and file daily reports about the status of the facility and the defendants’ efforts to manage Covid-19 risk. The plaintiffs’ request to impose a rigid cap of 35 detainees per dormitory was denied, and the defendants were ordered to show cause why a preliminary injunction should not issue requiring the defendants to meet some or all of the above requirements on an ongoing basis pending final resolution of this case.

After the status conference held on August 11, the parties agreed that the defendants can exercise discretion regarding how frequently to re-test people who have already tested positive. The court ordered the defendants to provide more detailed information in their daily reports, or else the defendants lawyers will be sanctioned. GEO was ordered to submit a declaration explaining the current status of testing capacity and speed at Mesa Verde, and the defendants were ordered to enable class counsel to communicate with detainees who refuse testing by both written communication to the Mesa Verde population as a whole, as well as real-time communication with detainees who refuse testing. The court also ordered that class members must agree to be tested prior to release, and that defendants are required to inform class counsel if any class member tests positive upon or after release.The parties were ordered to file briefs on the issue of whether it would be legally appropriate and practical for the court to issue an order requiring regular testing of all staff at Mesa Verde.

On August 14, the court ordered the defendants to administer point-of-care tests to everyone at Mesa Verde facility who has not already tested positive, and to file a submission answering the question of how it can be sufficient from a medical standpoint to check on people known to be infected with COVID only two times per day, considering the ongoing outbreak at the facility. The court denied the plaintiffs request to release everyone in the facility who has tested negative. The Court ordered that each staff member entering the facility be tested and that they be subsequently tested once a week until further notice. If a staff member declines testing, they are not to enter the facility.

The court further ordered the parties to file briefs discussing the appropriate level of care and monitoring necessary for a dorm full of people who have tested positive for Covid-19, the level of monitoring necessary to ensure that detainees are hospitalized promptly when needed, the assertion that people with COVID-19 are at greater risk of complications or death in the facility than if released, and who should pay for hospitalization and whether there are any financial disincentives to hospitalizing detainees. In the briefs, the plaintiffs criticized that the "[d]efendant's responses are not based on credible expert testimony[.]"

On August 21, the court ordered the defendants to create a written plan to improve their system of monitoring, caring for, and responding to medical assistance requests from detainees who have tested positive and who have health conditions that the CDC has identified as creating an elevated risk of complications.

During the course of the litigation, the court granted several bail requests, which the defendant appealed to the Ninth Circuit on August 31.

The defendants submitted a written plan based on CDC guidelines on August 31, and argued that no further court order is warranted, and if so, the court should specify "in objective terms what the constitutional requirements are for treating COVID-19 patients" that is “narrowly tailored” to constitutional requirements. They argued that the plaintiffs' request of "acceptable standards” or otherwise to release additional detainees is too vague. On September 2, the plaintiffs objected to the defendants' written plan which they considered "outdated" and "incomplete" that merely defend its current practices and argued that the defendants failed to meet and confer, contrary to the court's order. The defendants objected to this characterization of their written plan, and claimed that as of September 4, all of the detainees at Mesa Verde who tested positive for COVID-19 have recovered under the criteria set out by the CDC.

On September 21, the defendants submitted a motion to dismiss plaintiffs' complaint. They argued that the plaintiffs do not have a viable First Amendment retaliation claim, as a hunger strike is not a First Amendment protected conduct, and that their action in curbing such conduct had a legitimate goal in seeking to prevent civil detainees from harming themselves. The court has continued to grant bail requests and requested briefing on the matter of likelihood of reinfection, finding that it was sufficiently unlikely to warrant heightened concern.

Plaintiffs filed an amended class-action complaint for declaratory and injunctive relief and habeas petition on October 30 that requested certification for two subclasses, confined their claims for relief to the due process claims, and argued that defendants’ resistance to testing and quarantine led to a massive outbreak in Mesa Verde.

The case is ongoing.

Averyn Lee - 09/25/2020
Chandler Hart-McGonigle - 11/22/2020


compress summary

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Issues and Causes of Action
click to show/hide detail
Issues
Constitutional Clause
Due Process
Due Process: Substantive Due Process
Freedom of speech/association
Content of Injunction
Preliminary relief granted
Crowding
Crowding / caseload
Defendant-type
Law-enforcement
General
Bathing and hygiene
Conditions of confinement
Sanitation / living conditions
Totality of conditions
Immigration/Border
Constitutional rights
Detention - conditions
Medical/Mental Health
COVID-19 Mitigation Granted
COVID-19 Mitigation Requested
COVID-19 Release Granted
COVID-19 Release Requested
Medical care, general
Plaintiff Type
Private Plaintiff
Special Case Type
Habeas
Type of Facility
Government-run
Non-government for profit
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 Bivens
Habeas Corpus, 28 U.S.C. §§ 2241-2253; 2254; 2255
Defendant(s) GEO Group
Immigration and Customs Enforcement
U.S. Immigration and Customs Enforcement
Plaintiff Description Seven individuals detained at the Mesa Verde Detention Facility and the Yuba County Jail seeking immediate release of detainees from unsafe conditions of the jail in light of the global coronavirus pandemic. The class is all civil immigration detainees at Mesa Verde and YCJ, with two subclasses: the “YCJ Subclass” and the “Mesa Verde Subclass.”
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU of Northern California
ACLU of Southern California
Lawyers Comm. for Civil Rights Under Law
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
None yet
Source of Relief Litigation
None yet
Order Duration 2020 - n/a
Filed 04/20/2020
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)
  Zepeda Rivas v. Jennings (Immigration Detention)
https://www.aclunc.org/
Date: Apr. 24, 2020
By: ACLU of Northern California
[ Detail ] [ External Link ]

  Planned Parenthood Center for Choice, et al. v. Abbott, et al.
www.reproductiverights.org
Date: Apr. 22, 2020
By: Center for Reproductive Rights
[ Detail ] [ External Link ]

Docket(s)
3:20-cv-02732 (N.D. Cal.)
IM-CA-0162-9000.pdf | Detail
Date: 09/25/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Petition for Writ of Habeas Corpus and Class Complaint for Injunctive and Declaratory Relief [ECF# 1]
IM-CA-0162-0001.pdf | Detail
Date: 04/20/2020
Source: PACER [Public Access to Court Electronic Records]
Petitioners-Plaintiffs' Notice of Motion and Motion for Temporary Restraining Order [ECF# 5 & 5-1 to 5-5]
IM-CA-0162-0002.pdf | Detail
Date: 04/20/2020
Source: PACER [Public Access to Court Electronic Records]
Declarations in Support of Petitioners-Plaintiffs' Motion for Temporary Restraining Order [ECF# 5-6, 5-7 & 35]
IM-CA-0162-0003.pdf | Detail
Date: 04/20/2020
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs-Petitioners' Notice of Motion and Motion for Provisional Class Certification; Memorandum of Points and Authorities in Support Thereof [ECF# 6 & 6-1 to 6-14]
IM-CA-0162-0004.pdf | Detail
Date: 04/20/2020
Source: PACER [Public Access to Court Electronic Records]
Federal Defendants' Opposition to Motions for TRO and Provisional Class Certification, and Motion to Stay in Light of Fraihart [ECF# 37 & 37-1 to 37-20]
IM-CA-0162-0005.pdf | Detail
Date: 04/25/2020
Source: PACER [Public Access to Court Electronic Records]
Reply in Support of Petitioners-Plaintiffs' Motion for Temporary Restraining Order [ECF# 39 & 39-1 to 39-5]
IM-CA-0162-0006.pdf | Detail
Date: 04/27/2020
Source: PACER [Public Access to Court Electronic Records]
Opposition to Motion to Stay in Light of Fraihat (ECF NO. 38) [ECF# 40]
IM-CA-0162-0007.pdf | Detail
Date: 04/27/2020
Source: PACER [Public Access to Court Electronic Records]
Reply in Support of Petitioners-Plaintiffs' Motion for Class Certification [ECF# 41]
IM-CA-0162-0008.pdf | Detail
Date: 04/27/2020
Source: PACER [Public Access to Court Electronic Records]
Federal Defendants' Reply in Support of Motion to Stay in Light of Fraihat [ECF# 50]
IM-CA-0162-0009.pdf | Detail
Date: 04/27/2020
Source: PACER [Public Access to Court Electronic Records]
Order Granting Motion for Provisional Class Certification, Granting Motion for a Temporary Restraining Order, and Denying Motion for a Stay [ECF# 53] (2020 WL 2059848) (N.D. Cal.)
IM-CA-0162-0010.pdf | WESTLAW | Detail
Date: 04/29/2020
Source: PACER [Public Access to Court Electronic Records]
Petitioners-Plaintiffs' Memorandum of Law Regarding Statutory Authority of Magistrate Judges [ECF# 62]
IM-CA-0162-0011.pdf | Detail
Date: 05/01/2020
Source: PACER [Public Access to Court Electronic Records]
Petitioners-Plaintiffs' Notice of Motion and Motion for Preliminary Injunction and Supporting Exhibits (1/2) [ECF# 229, 229-1 to 229-19]
IM-CA-0162-0012.pdf | Detail
Date: 05/22/2020
Source: PACER [Public Access to Court Electronic Records]
Exhibits to Petitioners-Plaintiffs' Notice of Motion and Motion for Preliminary Injunction (2/2) [ECF# 229-20 to 229-21]
IM-CA-0162-0013.pdf | Detail
Date: 05/22/2020
Source: PACER [Public Access to Court Electronic Records]
Federal Defendants' (1) Motion for Order Confirming that Temporary Restraining Order has Expired, Ending Bail Process, and Vacating Bail Orders and (2) Opposition to Plaintiffs' Motion for Preliminary Injunction [ECF# 264 (incl. 264-1 to 264-3)]
IM-CA-0162-0014.pdf | Detail
Date: 05/27/2020
Source: PACER [Public Access to Court Electronic Records]
Petitioners-Plaintiffs' Reply in Support of Motion for Preliminary Injunction and Opposition to Motion to Dissolve Temporary Restraining Order [ECF# 286 (incl. 286-1 to 286-3)]
IM-CA-0162-0015.pdf | Detail
Date: 05/29/2020
Source: PACER [Public Access to Court Electronic Records]
Federal Defendants' Reply in Support of Motion for Order Confirming that Temporary Restraining Order has Expired, Ending Bail Process, and Bail Orders and Objection to Plaintiffs' Declaration [ECF# 290]
IM-CA-0162-0016.pdf | Detail
Date: 06/01/2020
Source: PACER [Public Access to Court Electronic Records]
Order Granting Motion for Preliminary Injunction [ECF# 357] (2020 WL 3055449) (N.D. Cal.)
IM-CA-0162-0017.pdf | WESTLAW | Detail
Date: 06/09/2020
Source: ACLU
Defendants' Joint Status Report Re Plan to Test all Incoming Detainees and Positive COVID-19 Test of Geo Officer at Mesa Verde [ECF# 407]
IM-CA-0162-0018.pdf | Detail
Date: 06/29/2020
Source: PACER [Public Access to Court Electronic Records]
Notice of Motion and Motion for Temporary Restraining Order [ECF# 485, 486, 487, 488 (& 488-1 to 488-13), 489 (& 489-1 to 489-8), 490]
IM-CA-0162-0019.pdf | Detail
Date: 08/05/2020
Source: PACER [Public Access to Court Electronic Records]
Federal Defendants' Objections to Plaintiffs' Revised Proposed Temporary Restraining Order [ECF# 495]
IM-CA-0162-0020.pdf | Detail
Date: 08/05/2020
Source: PACER [Public Access to Court Electronic Records]
Objections to Plaintiffs' Proposed Temporary Restraining Order [Doc. #490] [ECF# 496]
IM-CA-0162-0021.pdf | Detail
Date: 08/05/2020
Source: PACER [Public Access to Court Electronic Records]
Reply in Support of Plaintiffs-Petitioners' Motion for Temporary Restraining Order [ECF# 497, 498 (& 498-1 to 498-6)]
IM-CA-0162-0022.pdf | Detail
Date: 08/06/2020
Source: PACER [Public Access to Court Electronic Records]
Order Granting Motion for Temporary Restraining Order [ECF# 500] (2020 WL 4554646) (N.D. Cal.)
IM-CA-0162-0023.pdf | WESTLAW | Detail
Date: 08/06/2020
Source: PACER [Public Access to Court Electronic Records]
Order to File Briefs Regarding Medical Conditions for COVID Positive Detainees [ECF# 563] (N.D. Cal.)
IM-CA-0162-0024.pdf | Detail
Date: 08/17/2020
Source: PACER [Public Access to Court Electronic Records]
Federal Defendants' Response to the Court's August 17, 2020 Order Calling for Briefs and Declarations Regarding Medical Conditions for COVID-Positive Detainees [ECF# 585]
IM-CA-0162-0025.pdf | Detail
Date: 08/19/2020
Source: PACER [Public Access to Court Electronic Records]
Petitioners-Plaintiffs' Response to Defendants' Submissions Re Medical Care at Mesa Verde [ECF# 591]
IM-CA-0162-0026.pdf | Detail
Date: 08/20/2020
Order to Create Written Plan to Improve Medical Assistance for COVID-Positive Detainees [ECF# 595] (N.D. Cal.)
IM-CA-0162-0027.pdf | Detail
Date: 08/21/2020
Source: PACER [Public Access to Court Electronic Records]
Defendants' Response to the Court's August 21, 2020 Order to Create a Written Plan to Improve Medical Assistance for COVID-Positive Detainees [ECF# 645, 645-1, 645-2]
IM-CA-0162-0028.pdf | Detail
Date: 08/31/2020
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Objections to Defendants' Written Plan to Improve Medical Assistance for COVID-Positive Detainees at Mesa Verde [ECF# 658, 659 (& 659-1, 659-5 - 659-7)]
IM-CA-0162-0029.pdf | Detail
Date: 09/02/2020
Source: PACER [Public Access to Court Electronic Records]
Defendants' (1) Objection to the Plaintiffs' Characterization of Defendants' Response to the Court's August 21, 2020 Order and (2) Opposition to the Extent Plaintiffs Seek Expedited Discovery [ECF# 672 & 672-1]
IM-CA-0162-0030.pdf | Detail
Date: 09/04/2020
Source: PACER [Public Access to Court Electronic Records]
Motion by Defendants the GEO Group, Inc. and Nathan Allen to Dismiss Plaintiffs' Complaint [ECF# 709]
IM-CA-0162-0031.pdf | Detail
Date: 09/21/2020
Source: PACER [Public Access to Court Electronic Records]
First Amended Class Petition for Writ of Habeas Corpus and Class Complaint for Injunctive and Declaratory Relief [ECF# 780]
IM-CA-0162-0033.pdf | Detail
Date: 10/30/2020
Source: PACER [Public Access to Court Electronic Records]
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Judges Chhabria, Vince Girdhari (N.D. Cal.) show/hide docs
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