by Jayson Hawkins

In July 2020, Judge Consuelo Marshall of the U.S. District Court for Central California granted class certification to a group of prisoners at Lompoc federal prison, granting in part and denying in part their motion for preliminary injunction.

The group of prisoners at Lompoc filed a complaint against the Director of the Bureau of Prisons (BOP) and the warden of Lompoc asserting violations of the Eighth Amendment prohibition against cruel and unusual punishment in relation to conditions of confinement at Lompoc during the COVID-19 pandemic and the BOP’s failure to alleviate overcrowding at the prison through home confinement and early release procedures provided for by law.

The suit, Torres v. Milusnic, survived the standard motions for dismissal, and the plaintiffs subsequently petitioned the court for certification as a class comprising “all current and future people in post-conviction custody at Lompoc,” and also sought a preliminary injunction compelling the BOP to institute emergency procedures for early release and release to home confinement during the pandemic.

In order to succeed in a motion for preliminary injunction, a petitioner must show (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of injunctive relief, (3) the balance of equities is in their favor, and (4) injunctive relief is in the public interest (see Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)).

In this case, the prisoners are seeking relief pursuant to habeas corpus 28 U.S.C. § 2241 in relation to the early release statues enacted as part of the CARES Act in March 2020 and the idea that “no set of conditions of confinement under the present circumstances could be constitutional.”

The court found that, while ordinarily conditions of confinement cannot be challenged under §2241, the present suit challenged the fact or duration of confinement to a degree that gave rise to a habeas claim. To prevail in their pursuit of a preliminary injunction, the petitioners therefore now must show a likelihood of success on the merits in asserting that conditions are unconstitutional and that the BOP has not pursued the release programs mandated by the CARES Act. The standard for constitutionality is deliberate indifference.

The BOP contended that it has initiated a series of emergency procedures to deal with the reality of COVID-19, including limiting prisoner interactions, testing staff, screening prisoners, and issuing masks. The prisoners in this suit assert that these actions, even when actually implemented, have proven ineffective and therefore demonstrate indifference.

The court found that the factual disputes related to this issue put success on the merits in doubt, and even if resolved in the prisoners’ favor, failure is not evidence of deliberate indifference. The motion on this issue was therefore denied. In relation to early release, the court found that the warden at Lompoc had demonstrably failed to move on the programs mandated by the CARES Act.

In fact, Lompoc had not only failed to ease overcrowding, but was 500 prisoners over capacity when the initial petition was filed.

Having determined that success on the merits was likely, the court also found that irreparable harm was likely, the balance of equities was in the prisoners’ favor, and the reality of the pandemic outweighed the risk of releasing prisoners early.

When the court reached the issue of class certification, it considered numerosity, commonality, typicality, and adequacy of representation, as per Fed. R. Civ.P. 23 (a). The court subsequently found the proposed class to be overly broad and redefined it to be certified as all prisoners at Lompoc over 50 or suffering from pre-existing conditions that make them vulnerable to COVID.

The court ordered the BOP to identify all class members, identify all members eligible for early release measures, notify all prisoner class members, and process all the identified early release candidates with in thirty days. See: Torres v. Milusnic, 472 F. Supp.3d 713 (CD CA 2020).

On August 27, 2021, Judge Marshall issued another ruling and ordered the BOP to do the following: (1) Re-evaluate any class member who was denied home confinement on the basis of their time served on their sentence. They must consider risk factors for illness and death from COVID-19 for those over 50 years old or with underlying conditions, and explain why their length of time served outweighs their risk of contracting COVID. (2) Re-evaluate any class member who was denied home confinement based on prior offense. Again, they must explain why their prior offense outweighs their risk from COVID. The BOP must conduct the review within 28 days. It also applies to future class members and those not yet evaluated for home confinement. 

Those who are granted home confinement must be transferred within one month, and must not be quarantined longer than 18 days.

All those currently in BOP custody who are transferred to Lompoc in the future should be notified if they are at-risk and eligible for class status, informed they are entitled to class eligibility, added to the class list, reviewed for home confinement within 14 days of their arrival, and their review completed within another 14 days. For others who must surrender to Lompoc, but are not in BOP custody, this process must also apply. See: Torres v. Milusnic, USDC, CD CA, Case No. CV 20-4450 CBM (PVCx). 

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