by David M. Reutter

On January 6, 2021, a federal court in California issued an injunction extending the provisions of a temporary restraining order it had handed down two weeks earlier and excoriated officials from federal Immigration and Customs Enforcement (ICE) and their private prison contractor, the GEO Group, for their lies to the court and “abominable performance” in protecting immigrant detainees from COVID-19 at the Mesa Verde Detention Center near Bakersfield.

This was the second preliminary injunction Judge Vince Chhabria had granted in the case. A June 2020 ruling had left it up to ICE and the GEO Group to develop their own plan to test newly arriving detainees at the facility for COVID-19 and to isolate those who tested positive. The judge said that his prior ‘‘decision to avoid being intrusive turned out to be a mistake.’’

The lawsuit that sparked these rulings was filed in April 2020 by immigrant detainees who accused ICE of unconstitutional indifference to their risk of contracting the coronavirus at the Mesa Verde facility. They were joined in the suit by a separate group of ICE detainees at another California facility, the Yuba County Jail, which is not privately operated.

Ruling for the U.S. District Court for the Northern District of California, Chhabria entered his first injunction, which also required defendants to determine if some detainees could be released on bond. The judge rejected some of the more extensive forms of relief sought by plaintiffs, even though ICE’s officer then overseeing the Mesa Verde facility, Alexander Pham, admitted he had lied when he said detainees transferred from other facilities undergoing outbreaks of COVID-19 were being isolated for 14 days. In fact, they were being released into the general population without testing for the coronavirus.

Since then, Judge Chhabria observed in his latest ruling, “the conduct of key ICE and GEO officials in charge of operations at Mesa Verde has been appalling.”

Despite knowing they needed a “clear and detailed plan” to minimize the risk of a coronavirus outbreak, ICE and the GEO Group had failed to put one together nine months later, the judge found, even though the facility had experienced “a severe and prolonged outbreak” over the summer of 2020. The failure to have a plan in place left defendants “totally unprepared” to respond to the outbreak the judge added.

That resulted in a temporary restraining order that required regular detainee and staff testing, prevented new detainees from entering the facility, and imposed other safety measures. But, with the summer outbreak subsiding, ICE and the GEO Group argued the restraining order should be dissolved. Plaintiffs, however, moved for a preliminary injunction to keep the restraint order’s provisions in place. The court granted that request because it found that defendants’ conduct amounted to deliberate indifference.

“They deliberately avoided testing detainees and staff for fear that the results would require them to take expensive and logistically challenging safety measures,” Chhabria wrote.

He found that ICE and GEO Group also failed to address the safety issues presented by Mesa Verde’s unique layout, that they opposed bail for detainees on a blanket basis, and that they “gave false testimony several times” on matters of importance in the court proceedings.

Mesa Verde has five open-bay dorms that house 100 detainees per dorm. When the court inquired why an entire pod was being tied up with a few female detainees, ICE Deputy Field Office Director Erik Bonner said he decided “on or about March 18, 2020” to empty the women’s dorm at Mesa Verde. The court discovered that was another lie, one made “to combat the impression that they only decided to clear the women’s dorm once the court raised questions about it.” The evidence showed that the decision was in fact not made until May 7, 2020, after the initial lawsuit was filed.

Taken together with Pham’s lie, the court said the evidence “confirms the defendants’ deliberate indifference to the safety of the detainees.” Despite being repeatedly informed by Dr. Richard Medrano, the regional medical director, of the need to create a contingency plan to deal with the pandemic and the issues that would arise if they failed to do so, the defendants relied “on hopes and prayers,” wrote the court.

Nearly two months after several staff members tested positive in June 2020, Mesa Verde had not implemented any form of staff testing. The first detainee tested positive on July 29, 2020. Officials then tested every detainee in Dorm B. They were “praying for negatives,” Mesa Verde’s facility administrator told his GEO Group superiors.

A detainee in Dorm C exhibited symptoms on July 31, 2020, but it took another four days for officials to complete testing of all the detainees in that dorm.

“This kind of delay in testing is quite dangerous in congregate settings like detention centers where the virus can spread rapidly, and particularly in detention centers like Mesa Verde where detainees live in dormitory-style housing,” wrote the court.

It was not until August 3, 2020, that the facility administrator sent a draft plan to ICE for approval. At the outbreak’s peak, 57 of 103 detainees in custody had tested positive for the coronavirus, with three of them hospitalized.

Considering the evidence and prior rulings, the court found it was necessary to issue a preliminary injunction to provide constitutionally adequate protection to the detainees.

First, it ordered that a dorm must be reserved at Mesa Verde to house detainees who test positive for COVID-19.

In addition, it mandated pre-intake screening for COVID-19 and point-of-care testing for all intakes, with a positive result requiring placement in the reserved dorm and a negative result resulting in a 14-day quarantine.

If an intake detainee refuses the test, defense attorneys must be notified within two hours to confer with the detainee. Failure to allow testing, the judge said, will require that the detainee be placed in an individual cell.

A per-dorm population limit was further ordered to ensure that bunk beds are at least six feet apart. That limit did not apply to the dorm reserved for positive cases.

Saturation testing also was mandated by the court, meaning weekly testing of all detainees and staff at Mesa Verde, unless the detainee or staff had tested positive within the last 90 days and is not presenting symptoms.

Symptomatic detainees were to be placed in individual cells and offered testing. A positive result allowed placement in the positive-reserve dorm, and a negative result required isolation until a laboratory confirms the negative result. Mesa Verde also cannot transport detainees out of the facility absent certain conditions. Any new positive test results must be reported immediately to the court, in addition to a regular weekly report that must also be filed with the court.

The injunction also prevented ICE from placing any more detainees at the Yuba County Jail until the facility passed two weeks without a new case of COVID-19. Hayden Rodarte, a Justice Catalyst fellow at the Lawyers’ Committee for Civil Rights who is representing plaintiffs, said his group was renewing its efforts to secure a bail release for the 18 ICE detainees remaining at the facility. See: Rivas v. Jennings, Case No. 20-cv-02731-VC, U.S.D.C. (N.D. Cal.). 

Additional source: Courthouse News

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