Case No.: 3:20-cv-00782-DMS-AHG
ORDER RESOLVING JOINT MOTION FOR DETERMINATION OF RULE 34 SITE INSPECTION DISCOVERY DISPUTE, GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR A RULE 34 SITE INSPECTION
[ECF No. 89]
Before the Court is the parties' Joint Motion for Determination of Rule 34 Site Inspection Discovery Dispute (the "Joint Motion"). ECF No. 89. For the reasons that follow, the Court GRANTS IN PART Petitioners' request to conduct a Rule 34 site inspection. However, the Court will impose greater restrictions on the site inspection than those requested by Petitioners. Therefore, the motion will be DENIED IN PART.
On September 1, 2020, the parties contacted the Court seeking intervention in a discovery dispute. Specifically, Petitioners ask that their correctional healthcare expert be permitted to conduct an expedited on-site inspection of the Otay Mesa Detention Center ("OMDC") pursuant to Fed. R. Civ. P. 34(a)(2), to assess OMDC's compliance with CDC guidelines designed to minimize the spread of COVID-19. ECF No. 89 at 3. Plaintiffs ask that the inspection include both a physical inspection of all areas of the OMDC facility, as well as discussions with staff and detainees in USMS custody at the OMDC. Id. Plaintiffs intend to use the information gleaned from such an inspection to determine whether it is appropriate to file a motion for a preliminary injunction, based on their conditions-of-confinement claims, seeking conditions reforms to bring OMDC into compliance with the CDC regulations. Id.
Respondents oppose the request on several grounds, including: (1) the District Court has twice ruled that the Prisoner Litigation Reform Act ("PLRA") deprives it of authority to issue an injunction in this action; (2) Petitioners have failed to meet the "good cause" standard for obtaining expedited discovery prior to a Rule 26(f) conference; and (3) habeas petitioners are not entitled to discovery in general, and Petitioners have failed to meet the separate "good cause" standard for allowing discovery in habeas cases. Id. at 13.
The Court held a Telephonic Discovery Conference on the dispute on September 1, 2020, and set an expedited briefing schedule for a joint motion regarding the dispute. ECF Nos. 86, 87. The Joint Motion followed on September 10, 2020. ECF No. 89.
II. LEGAL STANDARDS
The scope of permissible discovery is dictated by Rule 26 of the Federal Rules of Civil Procedure, which permits parties to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]" Fed. R. Civ. P. 26(b)(1). Under Rule 34, a party may serve on any other party a request within the scope of Rule 26(b) "to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it." Fed. R. Civ. P. 34(a)(2). Petitioners' request to inspect OMDC falls under this provision.
Pursuant to Rule 26(d) of the Federal Rules of Civil Procedure, a party typically may not seek discovery prior to the parties' Rule 26(f) conference, "except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order." Fed. R. Civ. P. 26(d)(1). "In the Ninth Circuit, courts use the 'good cause' standard to determine whether discovery should be allowed to proceed prior to a Rule 26(f) conference." Rovio Entm't Ltd. v. Royal Plush Toys, Inc., 907 F. Supp. 2d 1086, 1099 (N.D. Cal. 2012). "Good cause exists 'where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.'" In re Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d 1160, 1179 (C.D. Cal. 2008) (quoting Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002)).
Habeas proceedings are exempted from initial disclosure under Rule 26(a)(1)(B)(iii), which brings into question whether the case law addressing when "good cause" is shown for early discovery is even applicable here, pursuant to Rule 26(d)(1). However, because both parties apply and argue the typical "good cause" standard governing expedited discovery, the Court will address their arguments using this standard.
In determining whether a party has shown good cause to grant expedited discovery, courts "commonly" consider such non-exhaustive factors as:
(1) whether a preliminary injunction is pending; (2) the breadth of the discovery requests; (3) the purpose for requesting the expedited discovery; (4) the burden on the defendants to comply with the requests; and (5) how far in advance of the typical discovery process the request was made.Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1067 (C.D. Cal. 2009) (quoting Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 234 F.R.D. 4, 6 (D.D.C. 2006)). See also Synopsys, Inc. v. AzurEngine Techs., Inc., 401 F. Supp. 3d 1068, 1076-77 (S.D. Cal. 2019) (applying the same factors).
Even outside the context of expedited discovery, discovery is not a matter of right in habeas corpus cases in general. Bracy v. Gramley, 520 U.S. 899, 904 (1997). See also Miranda v. Nielsen, No. CV098065PCTPGRECV, 2009 WL 10678167, at *4 (D. Ariz. Aug. 28, 2009). However, under Rule 6(a) of the Rules Governing 2254 Cases in the United States District Courts ("Habeas Rules"), a court may permit a habeas petitioner to conduct discovery for good cause. See Bracy, 520 U.S. at 904, 908-909 (applying the "good cause" standard of Rule 6(a) to determine whether to grant a habeas petitioner's request for discovery); Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir. 1997) (citing Rule 6(a) for the proposition that "discovery is available to habeas petitioners at the discretion of the district court judge for good cause shown.").
These Rules are applicable to cases brought under 28 U.S.C. § 2241 as well. See Habeas Rule 1(b). See also Miranda, 2009 WL 10678167, at *4 (applying Rule 6(a) in a § 2241 case); Rockett v. Lepe, No. 1:20-CV-00945-JDP, 2020 WL 4003585, at *2 (E.D. Cal. July 15, 2020), report and recommendation adopted, 2020 WL 5371409 (E.D. Cal. Sept. 8, 2020) (same).
"[W]here specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry." Harris v. Nelson, 394 U.S. 286, 300 (1969). In other words, "[a]s long as the petitioner's claims 'do not appear purely speculative or without any basis in the record,' she is 'entitled' to discovery under [Habeas] Rule 6." Miranda, 2009 WL 10678167, at *4 (quoting McDaniel v. District Court, 127 F.3d 886, 888 (9th Cir. 1997)). \\
A. The Court's previous rulings do not establish that the Court lacks authority to issue injunctive relief to address Petitioners' conditions of confinement
Respondents first argue that Petitioners' request for a Rule 34 site inspection of OMDC should be denied, because the District Court "has already ruled—on two separate occasions—that it has no authority to issue any injunction relating to the conditions of Petitioners' confinement." ECF No. 89 at 17. In particular, Respondents point to the Court's May 9, 2020 Order Denying Petitioners' Motion for Temporary Restraining Order (ECF No. 46) and the Court's June 7, 2020 Order Denying Petitioners' Motion for Preliminary Injunction (ECF No. 81). Based on these denials, Respondents contend the discovery sought is not "proportional to the needs of the case" under Fed. R. Civ. P. 26(b)(1), because any inspection of OMDC would be "pointless" and would not "suddenly vest this Court . . . with authority to issue an injunction." ECF No. 89 at 17-18.
Respondents' characterization of the Court's prior orders as determinations "that it has no authority to issue any injunction relating to the conditions of Petitioners' confinement" is clumsy at best and intentionally misleading at worst. The Court previously ruled that, pursuant to the PLRA at 18 U.S.C. § 3626(a)(3)(A), it lacks authority to issue a Temporary Restraining Order or Preliminary Injunction in this matter that would operate as a prisoner release order. See ECF No. 81 at 5-10; ECF No. 46 at 7-9.
Specifically, in denying Petitioners' previous motions for a TRO and a preliminary injunction, the Court applied the following provision of the PLRA to find it lacked authority to grant the relief requested:
In any civil action with respect to prison conditions, no court shall enter a prisoner release order unless--18 U.S.C. § 3626(a)(3)(A).
(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and
(ii) the defendant has had a reasonable amount of time to comply with the previous court orders.
Additionally, the Court noted that pursuant to §§ 3626(a)(3)(B) and (E) of the PLRA, "a prisoner release order shall be entered only by a three-judge court[,]" and even then "only if the court finds by clear and convincing evidence that (i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right." See ECF No. 46 at 8; ECF No. 81 at 10. Therefore, because Petitioners were requesting release as the remedy for their conditions-of-confinement claim, the Court found that "[t]he substance of their claim and form of relief fall squarely within the purview of a 'prisoner release order' under the PLRA" and that the Court could thus not grant the requested relief. ECF No. 46 at 9. See also ECF No. 81 at 10 (applying the same provisions to find that the Court could not order the requested relief of "impos[ing] a reduction of the prison population at OMDC as the first step in addressing the facility's COVID-19 outbreak . . . without first following the PLRA's requirements.").
However, the Court made no broad ruling that the PLRA divests the Court of authority to grant any kind of injunction in this matter, much less that it lacks authority to issue an injunction "relating to the conditions of Petitioners' confinement," as Respondents argue. The substance of Petitioners' claim (challenging their conditions of confinement) was only one piece of the Court's rationale in its prior rulings; the relief requested (a prisoner release order) was the other.
But Petitioners' prayer for relief extends beyond their request for release—they also seek relief in the form of a plan outlining "[s]pecific mitigation efforts, in line with CDC guidelines to prevent, to the degree possible, contraction of COVID-19 by all Class Members not immediately released" as well as a declaratory judgment "that the conditions under which Defendants have confined Plaintiffs and OMDC class members violate the Due Process Clause of the Fifth Amendment with respect to both the Pretrial and Post-Conviction Classes, and the Eighth Amendment's prohibition against cruel and unusual punishment with respect to the Post-Conviction Class[.]" ECF No. 1 at 39-40. Therefore, Petitioners are correct in stating that their petition seeks both habeas relief in the form of release of the medically vulnerable, "as well as  reasonable mitigation efforts—i.e., conditions reforms—for those left behind in light of the COVID-19 pandemic." ECF No. 89 at 4. The Court has not issued any ruling on its authority to grant injunctive relief to address conditions of confinement by way of less intrusive relief than a release order. Moreover, the PLRA specifically affirms the Court's authority to issue such relief:
In any civil action with respect to prison conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief. Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. . . .18 U.S.C. § 3626(a)(2).
Although a § 1983 or Bivens action is typically the appropriate vehicle for incarcerated plaintiffs to seek relief addressing conditions of confinement, see Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991); Alcala v. Rios, 434 F. App'x 668, 669-70 (9th Cir. 2011), the District Court has already ruled in this case that "Plaintiffs may bring either kind of challenge—'fact or duration of confinement' or conditions of confinement—in a habeas proceeding." ECF No. 81 at 6 n.1 (citing Ziglar v. Abbasi, 137 S. Ct. 1843, 1862-63 (2017) and Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016)). See also ECF No. 46 at 5 (also quoting Ziglar, 137 S. Ct. at 1862-63 in the Order Denying Plaintiffs' Motion for Temporary Restraining Order, for the proposition that the Supreme Court left open the question whether detainees "might be able to challenge their confinement conditions via a petition for writ of habeas corpus."). See also Durel B. v. Decker, No. CV 20-3430 (KM), 2020 WL 1922140, at *5 (D.N.J. Apr. 21, 2020) ("Federal courts, however, have seemingly condoned challenges to conditions of confinement raised through a habeas petition.") (collecting cases).
Indeed, in its rulings on both motions, the District Court signaled that injunctive relief aimed at changing the conditions of Petitioners' confinement (rather than granting release based on those conditions) would be the only kind of injunctive relief it could grant. See, e.g., ECF No. 46 at 7-8 (disagreeing with Petitioners' assertion "that there are no set of conditions at OMDC that would be constitutionally sufficient under the Fifth Amendment[,]" but noting its lack of authority to issue any order "that has the purpose or effect of reducing or limiting the prison population, or that directs the release from  a prison" pursuant to the PLRA); ECF No. 81 at 8-9 (emphasizing that the specific remedy Petitioners sought in their preliminary injunction motion was "the release of a large number of prisoners[,]" as barred by the PLRA, and thus distinguishing the relief sought here from relief granted in other cases relied on by Petitioners); id. at 10 (explaining that the PLRA limitations "ensure that the 'last resort remedy' of a population limit is not imposed 'as a first step'" and noting that Petitioners "are requesting the Court do just that—impose a reduction of the prison population at OMDC as the first step in addressing the facility's COVID-19 outbreak. The Court, however, cannot order such relief without first following the PLRA's requirements.") (emphasis added) (citation omitted). As noted above, one such requirement of the PLRA is that, before a prisoner release order can be entered by a three-judge court, a court must have "previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied." 18 U.S.C. § 3626(a)(3)(A)(i).
Thus, the Court's previous denials of Petitioners' motions for a temporary restraining order and preliminary injunction do not bear out Respondents' argument that any future motion for injunctive relief relating to the conditions of Petitioners' confinement—but not seeking release as a remedy—would be doomed to fail. See, e.g., Wilson v. Ponce, No. CV204451MWFMRWX, 2020 WL 5118066, at *2-*5 (C.D. Cal. July 14, 2020) (differentiating habeas petitioners' request for relief involving maximizing transfers to home confinement, which the court found was barred by the PLRA as a prisoner release order, from the petitioners' request for "an order requiring improvement of conditions" at their facility of confinement, because "[a]n order requiring Respondents to improve the conditions of [the facility] to mitigate the threat of COVID-19 does not have the purpose or effect of reducing or limiting the prison population or direct the release of prisoners from prison."). If anything, the Court's prior orders expressly leave open the door for Petitioners to request less intrusive relief such as "a motion for a preliminary injunction seeking specific conditions reforms necessary to bring [OMDC] into compliance with CDC guidelines and constitutional guarantees," as Petitioners assert they are considering in the Joint Motion. ECF No. 89 at 3. See ECF No. 81 at 12 (explaining in the order denying Petitioners' preliminary injunction motion that "[i]t does not logically follow from the Court's conclusion, however, that all is well. Plaintiffs' allegations and declarations raise important concerns that must be continually addressed by Defendants" and quoting Justice Sotomayor's recent observation in Valentine v. Collier, 140 S. Ct. 1598, 1601 (2020) (mem.) (joined by Ginsburg, J.) that ". . . a society's worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm."). Consequently, the Court finds Respondents' first argument for denying the site inspection unavailing.
B. Petitioners have met the "good cause" standard for expedited discovery
Respondents next argue that Petitioners have not met the "good cause" standard for expedited discovery in general. Under that standard, the Court must consider whether the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party. Countrywide, 542 F. Supp. 2d at 1179; Semitool, 208 F.R.D. at 276.
The Court finds the standard is met here. Petitioners have provided evidence, in the form of declarations from OMDC detainees, indicating that OMDC is not complying with CDC guidelines regarding COVID-19. See ECF Nos. 90-2, 90-3, 90-4. For example, Petitioners provide a Declaration from OMDC detainee Danielle Castagne, stating that she tested positive for COVID-19 on July 10, 2020 upon intake and again on July 16, 2020, but that she was moved from "medical" to administrative segregation after only six days, and that she had a cellmate in administrative segregation who did not have a positive test. ECF No. 90-2, Castagne Decl. ¶¶ 2-3, 5-8. If true, OMDC's practice is not in compliance with CDC guidelines advising 10 days of medical isolation (among other requirements) before a person meets the standard for recovery. Moreover, even when in "medical," Ms. Castagne was given recreational time in the same yard as two other women in "medical" who were quarantining, but who did not have a positive test, indicating that OMDC may be cohorting detainees who are COVID-19 positive with those who are merely quarantined (but without positive tests), which also goes against CDC guidelines. Id. ¶ 6; see also ECF No. 90-10 at 4 (recommending medical isolation of individuals with confirmed cases to prevent contact with others); 6 (recommending that detention facilities ensure separate physical locations to isolate individuals with confirmed COVID-19, individuals with suspected COVID-19, and quarantined individuals who had close contacts with those with confirmed or suspected COVID-19). Ms. Castagne further asserts that, after her second positive test on July 16, she was moved back to "medical" for only three days before being returned to the general population in B-pod. Castagne Decl. ¶ 10. Again, if true, OMDC would be out of compliance with CDC guidelines.
CDC guidelines recommend medical isolation of any person with a positive COVID-19 test in a detention facility. Medical isolation entails isolation from all other detainees. It is unclear from Ms. Castagne's Declaration whether "medical" refers to medical isolation, or whether she was held with other detainees while in "medical." And as discussed in more detail infra, the Declaration of U.S. Chief Deputy Marshal Johnson provided by Respondents indicates that placement of inmates who test positive for COVID-19 in the medical unit does not entail isolation from other inmates without positive tests.
Respondents have also provided declarations from Chief Deputy U.S. Marshal Keith Johnson and OMDC Warden C. LaRose, detailing the measures that OMDC has taken to reduce the spread of COVID-19. ECF Nos. 90-7 ("Johnson Decl."), 90-11 ("LaRose Decl."). In many instances, these declarations conflict with those provided by Petitioners. For example, Mr. Johnson states that detainees with positive COVID-19 tests are kept in the medical unit and isolated from the general population until they meet certain standards for recovery, including that at least 14 days have passed since the first positive test. ECF No. 90-11, Johnson Decl. ¶ 6. Mr. LaRose also states that OMDC maintains separate housing for detainees suspected of COVID-19 infection and those who are confirmed positive. LaRose Decl. ¶ 139. These statements are not consistent with Ms. Castagne's description of her experience.
These examples of conflicts between the Petitioners' declarations and Respondents' declarations are not exhaustive; there are numerous other examples of conflicts between the protocols outlined in Respondents' declarations and the reports of the inmate declarants regarding which protocols are adhered to. Compare, e.g., ECF No. 90-3, Declaration of Billie Jo Reynolds ¶ 6 (stating that she was held in the same rooms as people quarantining for COVID-19 when placed in the medical unit for reasons unrelated to COVID-19); ¶ 8 (stating that everyone in administrative segregation had to share soap, and that many people placed in administrative segregation were not there for disciplinary issues but were instead quarantining); ¶ 11 (stating that, while working as a cleaner, she has had to use dirty rags to clean the common spaces, and that she was only given disposable, single-use masks "about three times since I've been here even though I've asked for additional masks several times"); and ECF No. 90-4, Declaration of Joseph Broderick ¶ 4 (stating that at the mandatory weekly town hall meetings, "everyone sits together at the tables in the dayroom and there is no social distancing possible"); ¶ 11 (stating that staff does not always give him a new mask when requested) with ECF No. 90-7, LaRose Decl. ¶ 49 (stating that COVID-19 positive and exposed detainees may not intermix with general population detainees that have not been tested); ¶¶ 30-31 (stating that OMDC's COVID-19 Response protocols "meet or exceed" ICE's Pandemic Response Requirements, which require facilities to, inter alia, "[e]stablish practices to monitor, cohort, quarantine, and isolate sick detainees from well detainees"); ¶ 72 (stating that replacement masks are provided upon request); ¶ 83 (stating that detainees are not required to forgo social distancing recommendations to attend town hall meetings); ¶¶ 102-103 (stating that any detainee may readily obtain personal bar soap); ¶¶ 97 - 109 (describing "enhanced sanitation practices" in the facility, including deep cleaning processes with extra disinfection performed on "high touch" areas, and the provision of disinfectants to detainees to clean their living areas).
Respondents contend that the declarations of the OMDC detainees should be disregarded by the Court as "vague anecdotal evidence," and emphasize that the detainees "face serious federal charges[,]" in contrast to the detailed declarations they provided from their representatives. ECF No. 89 at 18-19. Respondents detail Petitioners' criminal charges in a footnote. Id. at 18 n.53. It is unclear how the nature of the charges faced by Petitioners is at all relevant to the issue at hand, or why Respondents would provide this information other than to suggest that Petitioners' firsthand accounts of their conditions of confinement cannot be credible because they are accused criminals. The Court does not agree, and declines to give Petitioners' declarations any less weight for that reason. Rather, the Court finds persuasive the reasoning of another district court faced with a similar request for a Rule 34 site inspection in a case involving a constitutional challenge to the conditions of confinement at a detention facility during the COVID-19 pandemic. See Chunn v. Edge, No. 20-CV-1590 (RPK), 2020 WL 1872523 (E.D.N.Y. Apr. 15, 2020). There, the respondent suggested "that a site inspection is not necessary because two of the named petitioners are housed at the [detention facility] and can therefore describe the conditions at the facility to their expert." Id. at *2. However, the Court found that "firsthand observation of conditions" at the facility "is likely to yield information that could not be readily obtained through secondhand accounts[,]" and thus concluded that a site inspection was appropriate. Id. This reasoning applies with extra force here, where Respondents contend that the accounts of the inmates currently housed at OMDC should be disregarded altogether.
Moreover, even if the Court credited only Respondents' declarations, they show a departure from CDC guidelines as well. As an example, the CDC guidelines require facilities to "[e]nsure that separate physical locations (dedicated housing areas and bathrooms) have been identified to 1) isolate individuals with confirmed COVID-19 (individually or cohorted), 2) isolate individuals with suspected COVID-19 (individually - do not cohort), and 3) quarantine close contacts of those with confirmed or suspected COVID-19 (ideally individually; cohorted if necessary)." ECF No. 90-10 at 6. But Mr. Johnson's declaration indicates only that individuals with confirmed COVID-19 are "isolated from the general population " in the medical unit, not that they are isolated from individuals with suspected COVID-19 or quarantined individuals who are close contacts of those with confirmed or suspected COVID-19. Johnson Decl. ¶ 6 (emphasis added). Mr. LaRose's declaration similarly states that "COVID-19 positive and exposed detainees may participate in recreation activities but may not intermix with general population detainees that have not been tested[,]" LaRose Decl. ¶ 49, which is at odds with CDC guidelines directing that facilities "should make every possible effort to individually quarantine cases of confirmed COVID-19, and close contacts of individuals with confirmed, or suspected COVID-19" and stating that cohorting multiple quarantined closed contacts "should only be practiced if there are no other available options." ECF No. 90-10 at 20. Additionally, it is unclear from Respondents' Declarations whether all new inmates who are automatically quarantined for 14 days upon intake are housed with everyone else in the medical unit, regardless of whether they are in the medical unit due to a positive test or due to exposure, which would also violate CDC guidelines. See id. (advising detention facilities to avoid mixing individuals quarantined due to exposure with those undergoing routine intake quarantine).
As a third example, CDC guidelines dictate that there should be signs throughout the facility, as well as verbal communication on a regular basis to all persons in the facility, to "[w]ear face coverings, unless PPE is indicated." Id. at 7. "[W]earing cloth face coverings (if able), and social distancing are critical in preventing further transmission." Id. at 9. Therefore, facilities should "[e]ncourage all staff and incarcerated/detained persons to wear a cloth face covering as much as safely possible. . . . Because many individuals with COVID-19 do not have symptoms, it is important for everyone to wear cloth face coverings in order to protect each other[.]" Id. at 10. Further, CDC guidelines regarding management strategies for staff state that staff should be provided "clear information  about the presence of COVID-19 within the facility, and the need to enforce use of universal cloth face coverings (unless contraindicated)[.]" Id. at 22. However, Respondents' own photos from within OMDC show that the signage regarding cloth face coverings for both staff and inmates do not encourage mask use. Instead, the signs directed at inmates state: "You will soon be provided with a cloth or surgical paper face mask which you may voluntarily wear inside the facility" and " You have the option to immediately begin wearing a cloth or paper mask provided to you by CoreCivic." ECF No. 90-9 at 17 (emphasis added). Similarly, the signs directed at staff state: "You will soon be provided with a cloth or surgical paper face mask which you may voluntarily use during the course of your work duties for CoreCivic." Id. at 29. In contrast to signage actively encouraging, e.g., hand-washing and covering one's mouth and nose to cough, nothing on the signage regarding masks encourages anyone to wear a mask or face covering or explains the importance of wearing them. Compare id. at 17, 29 with id. at 33-35. Indeed, Mr. LaRose confirms that use of masks by OMDC staff is only required "if working in the protective cohort or quarantine pods." ECF No. 90-7 ¶ 69.
Both signs provide "answers to common questions regarding use of these masks[,]" but the questions involve how to wear the mask, whether it is permitted to keep the mask on at all times, what to do if the mask is damaged, and how long one can continue to wear a mask (the answer to the last question notes that "permission [to wear a mask] may be revoked at the discretion of CoreCivic if necessary in order to comply with applicable state or federal orders, partner directives, to ensure the orderly operation of CoreCivic institutions, or to promote the health and safety of inmates and staff."). ECF No. 90-9 at 17, 29. Indeed, one of the "common questions" on the sign directed at inmates is "When Shouldn't I Wear a Mask?" and the answer provided is: "Don't wear a mask if it impairs your ability to breathe, fogs up your eye glasses, or impairs your vision." Id. at 17. However, CDC guidelines state that masks are only contraindicated for anyone who has trouble breathing, or is unconscious, incapacitated, younger than 2 years of age or otherwise unable to remove the mask without assistance. See, e.g., ECF No. 90-10 at 4, 11, 17, 21. Not one of the common questions or answers on either sign involves the benefits of wearing a mask, let alone encourages mask use.
As a fourth example, Mr. Johnson's declaration outlines the "standards for recovery" applied to inmates with positive COVID-19 tests, which include: (1) at least 3 days have passed since the resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms; (2) at least 7 days have passed since symptoms first appeared; and (3) a minimum of 14 days have passed since the first specimen was collected resulting in a positive test. Johnson Decl. ¶ 6. However, current CDC guidelines direct that individuals with positive tests may discontinue medical isolation when (1) at least 10 days (not 7) have passed since symptom onset; (2) at least 24 hours have passed since resolution of fever without the use of fever-reducing medications; and (3) other symptoms (not only respiratory symptoms) have improved. See Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settings, Centers for Disease Control and Prevention (July 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/disposition-in-home-patients.html (cross-referenced in the CDC's Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, attached as Ex. 2 to the LaRose Decl., ECF No. 90-10 at 17).
In sum, the conflicting declarations provided by Petitioners and Respondents establish good cause for a site inspection to obtain objective evidence of the conditions of confinement at the OMDC. See Chunn, 2020 WL 1872523, at *1 ("Visiting the [detention facility] is the best way for petitioners' expert to gain an accurate understanding of the conditions there. And petitioners' expert can be expected to produce a report and testimony that is more useful to the Court if the expert observes conditions at the facility firsthand."). And, even if the Court disregarded Petitioners' declarations as Respondents urge, the declarations they provide also give rise to questions about OMDC's compliance with CDC guidelines sufficient to warrant a site inspection.
In reaching this conclusion, the Court has first considered whether Petitioners' need for the requested discovery outweighs the prejudice to the responding party. Countrywide, 542 F. Supp. 2d at 1179; Semitool, 208 F.R.D. at 276. Respondents contend the request is burdensome because "[g]iving an undefined number of people unrestricted access to the entire facility for an unlimited time would undoubtedly disrupt Respondents' mission and operations." ECF No. 89 at 20. However, this characterization of Petitioners' request is simply inaccurate. Petitioners' Proposed Order states: "The inspection will start at a time agreed to by the parties and will last for five hours from when the participants have passed through security, with additional time added for any delays." ECF No. 90-5 ¶ 1. Although it is true that the proposed order builds in possible additional time to account for "delays," it is clear that Petitioners are generally requesting a five-hour inspection, not one that is "unlimited" in time. The Court also rejects Respondents' contention that Petitioners ask for access to OMDC by "an undefined number of people." Petitioners specifically ask for access to the facility by (1) a correctional healthcare expert to be selected by Petitioners, (2) a Spanish-speaking interpreter provided by Petitioners, and (3) a minimal number of other personnel necessary to guide Petitioners' expert through the facility. Id. ¶ 2. Presumably, the third category of persons to attend the inspection would include only persons selected by Respondents for the purpose of guiding Petitioners' expert and interpreter through the facility. Therefore, to the extent the request involves access by "an undefined number of people," the number is only undefined to the extent that Petitioners did not ask the Court to impose a specific limit on the number of people that Respondents may select from among their personnel to guide Petitioners' expert through OMDC. Petitioners only ask for access by two authorized individuals that they have selected.
Further, Respondents do not explain how the requested 5-hour inspection would "disrupt [their] mission and operations," and the Court agrees with Petitioners that the requested inspection is no more burdensome than the standard contract compliance inspections and monitoring conducted by the USMS, the unannounced USMS inspections that OMDC is already subject to, or the San Diego County Department of Environmental Health's inspection of the OMDC that took place on April 21, 2020, including an evaluation of social distancing and sanitation protocols and health and hygiene practices. See ECF No. 71-29, Declaration of Chief Deputy United States Marshal Keith Johnson ¶ 4; ECF No. 90-7, LaRose Decl. ¶ 121. Respondents do not address how or why the requested inspection, which is proposed to take place "on a mutually agreed date" and to "start at a time agreed to by the parties[,]" would be any more likely to disrupt Respondents' mission and operations than these other inspections, particularly those that are unannounced. Under such circumstances, the Court cannot find that, in consideration of the administration of justice, the asserted burden on Respondents outweighs the need for the requested discovery. Semitool, 208 F.R.D. at 276. See also Chunn, 2020 WL 1872523, at *1 (explaining that the respondent facility failed to show that an inspection would be burdensome where "site inspections have been conducted at the [facility] on at least several occasions in recent years, without any evident disruption of operations" and where "respondent has not identified aspects of the facility's COVID-19 protocols that make an inspection impracticable.").
Respondents also argue that they would be "burdened with the difficult task of safeguarding the inspection team from the inmates, and of trying to ensure that the inspectors themselves do not re-introduce COVID-19 into the housing units." ECF No. 89 at 20. Notably, Petitioners do propose that all persons involved in the inspection "shall be provided with or permitted to wear their own full personal protective equipment to safely enable the inspection." ECF No. 90-5 ¶ 5. Nonetheless, the Court agrees with Respondents that additional safeguards are necessary, and will address that issue further in its discussion below regarding the scope of the proposed inspection.
As noted above, the non-exhaustive list of factors commonly applied by courts when evaluating whether to grant early discovery are: (1) whether a preliminary injunction is pending; (2) the breadth of the discovery requests; (3) the purpose for requesting the expedited discovery; (4) the burden on the defendants to comply with the requests; and (5) how far in advance of the typical discovery process the request was made. Am. LegalNet, 673 F. Supp. 2d at 1067. The Court's analysis has thus far touched on the third and fourth factors, and finds they weigh in favor of Petitioners for the reasons already explained. The Court will now address the first factor. The second factor will be discussed in greater detail in Section III.D infra. As for the third factor—how far in advance of the typical discovery process the request was made—the Court finds it is not applicable here, because discovery is not typically permitted as a matter of right in any habeas case. The Court will thus also discuss the standard for allowing discovery in habeas cases separately in Section III.C infra.
Here, Petitioners assert that based on the information obtained through a Rule 34 site inspection, they "will determine whether it is appropriate to file a motion for a preliminary injunction seeking specific conditions reforms necessary to bring Otay Mesa into compliance with CDC guidelines and constitutional guarantees, or seek other appropriate relief from this Court." ECF No. 89 at 3. Although there is not currently a preliminary injunction motion pending, the Court agrees with the authority relied on by Petitioners that "expedited discovery may be justified to allow a plaintiff to determine whether to seek an early injunction." NobelBiz, Inc. v. Wesson, No. 14CV0832 W JLB, 2014 WL 1588715, at *1 (S.D. Cal. Apr. 18, 2014) (citing Interserve, Inc. v. Fusion Garage PTE, Ltd., 2010 WL 143665, at *2 (N.D. Cal. 2010) ("Expedited discovery will allow plaintiff to determine whether to seek an early injunction")). See also Bona Fide Conglomerate, Inc. v. SourceAmerica, No. 14-CV-0751-GPC (DHB), 2014 WL 12515242, at *2 (S.D. Cal. Nov. 7, 2014) (finding this factor weighed in favor of the party seeking expedited discovery, even though there was not a motion for preliminary injunction pending, because the requesting party "indicates that it may seek an injunction once it has an opportunity to review" the discovery, and therefore the requested discovery was "relevant to whether an injunction should be sought.").
In NobelBiz, this court found expedited discovery was justified in part because "expedited discovery would allow the Court to address any request for preliminary injunctive relief at the outset of the case, thereby providing a measure of clarity to the parties early in the proceeding and facilitating effective case management[,]" but limited the requested discovery the ensure it was appropriately restrained in breadth and scope. 2014 WL 1588715, at *2. Despite the different procedural posture of the present case, the Court finds the same reasoning persuasive here. Although Petitioners have already tried and failed twice to obtain preliminary relief at the outset of the case, as explained in detail above, Petitioners have not yet tried their hand at seeking injunctive relief related to their claims seeking a plan that outlines "[s]pecific mitigation efforts, in line with CDC guidelines to prevent, to the degree possible, contraction of COVID-19 by all Class Members not immediately released" as well as a declaratory judgment that the conditions of Petitioners' confinement violate the Fifth and Eighth Amendments. ECF No. 1 at 39-40. Petitioners explain that the expert inspection will aid them in determining whether to seek an early injunction regarding potential conditions reforms at OMDC, or, instead, whether to forgo seeking a preliminary injunction altogether. ECF No. 89 at 8-9. The evidence before the Court produced by both sides is sufficient to establish the need for a limited Rule 34 site inspection to develop the record further in relation to these claims. And, if the expert inspection establishes that the conditions at the OMDC are constitutionally sufficient, it will have effectively "provid[ed] a measure of clarity to the parties" and saved both sides time and resources that might otherwise be wasted on a preliminary injunction motion directed at conditions reforms that are unnecessary, thus facilitating effective case management. NobelBiz, 2014 WL 1588715, at *2. See also Chunn, 2020 WL 187523, at *1 (finding that an expert's report and testimony based on a firsthand site inspection is the "best way" to gain an accurate understanding of the site conditions, and "more useful to the Court" than secondhand accounts).
Therefore, the Court finds that any burden on Respondents is outweighed by the need for objective discovery regarding the conditions of confinement at OMDC, for the purpose of gathering evidence in support of a potential motion for injunctive relief seeking conditions reforms. Consequently, Respondents have shown good cause for expedited discovery.
The currently low number of known positive COVID-19 cases at OMDC does not alter the Court's analysis. The CDC guidelines governing detention facilities are intended to be preventative measures, and other courts have found that merely putting pretrial detainees at risk of COVID-19 infection by failing to implement CDC guidelines amounts to punishment without due process in violation of the Constitution (at least with respect to medically vulnerable detainees). See, e.g., Cristian A.R. v. Decker, No. CV 20-3600, ___ F. Supp. 3d ___, 2020 WL 2092616, at *12 (D.N.J. Apr. 12, 2020) ("By failing to implement the CDC's instructions for the most vulnerable individuals, and by detaining those persons in a jail setting during a rapidly accelerating COVID-19 pandemic without providing them with adequate means to follow hygiene and other health protocols, Respondents have placed Petitioners at a substantially enhanced risk for severe illness or death. . . . Accordingly, the Court is satisfied Petitioners have demonstrated that Respondents' conduct amounts to punishment under the Due Process Clause.") (emphasis added); Durel, 2020 WL 1922140, at *8 (. . . the circumstances presented here amount to punishment. While Respondents have undertaken significant measures to try and prevent COVID-19 from further spreading throughout the facility, those measures appear insufficient to protect Petitioner whose allegedly compromised immune system puts him at greater risk of severe illness if he were to contract COVID-19. . . . Petitioner alleges an inability to adhere CDC guidance on how to protect himself from contracting COVID-19"); Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *5, *8 (M.D. Pa. Mar. 31, 2020) (explaining that "the nature of ICE detention facilities makes them uniquely vulnerable to the rapid spread of highly contagious diseases like COVID-10[,]" noting that two medical experts for DHS warned Congress that the current ICE detention environment is a "tinderbox[,]" and discussing "high-risk conditions" that could lead to "disastrous" consequences "in the case of a COVID-19 outbreak[,]" ultimately leading to the conclusion that, considering "the grave consequences that will result from an outbreak of COVID-19 , particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.") (emphasis added). Cf. United States v. Stephens, 447 F. Supp. 3d 63, 65 (S.D.N.Y. 2020) (reconsidering a defendant's bail conditions in part because "[a]lthough there is not yet a known outbreak among the jail and prison populations, inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop."). Again, the undersigned expresses no opinion on the merits of Petitioners' conditions-of-confinement claims, but they do not necessarily hinge on whether there is a current COVID-19 outbreak at OMDC. --------
C. Petitioners have met the separate "good cause" standard for obtaining discovery in a habeas case
Under Rule 6(a) of the Habeas Rules, a district court, at its discretion, may permit a habeas petitioner to conduct discovery for "good cause." See Bracy, 520 U.S. at 904, 908-909; Jones, 114 F.3d at 1009. Although Respondents correctly note that courts should not permit habeas petitioners to use discovery "for fishing expeditions to investigate mere speculation[,]" Calderon v. U.S. Dist. Court for the N. Dist. of Cal., 98 F.3d 1102, 1106 (9th Cir. 1996), the good cause standard is met if Petitioners' claims do not appear purely speculative or without any basis in the record. Miranda, 2009 WL 10678167, at *4.
Respondents' arguments that the Rule 34 site inspection is just such a fishing expedition is unavailing. Again, the anticipated preliminary injunction motion at hand involves Petitioners' claims seeking conditions reforms, not those seeking a prisoner release order. To oppose the request, Respondents rely in part on case law concerning criminal defendants seeking discovery under Federal Rule of Criminal Procedure 16(a)(1)(C) to argue that, to obtain discovery, "a defendant must present facts which would tend to show that the Government is in possession of information helpful to the defense." ECF No. 89 at 21 (quoting United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)). However, Rule 16 of the Federal Rules of Criminal Procedure is clearly inapposite in a habeas case, in which Rule 6(a) (and the related case law explaining what constitutes "good cause" under Rule 6(a)) governs the Court's analysis.
The Court has already explained in detail why the declarations provided by Petitioners (as well as other evidence supplied by Respondents) are sufficient to establish that Petitioners "may, if the facts are fully developed, be able to demonstrate . . . that [they are] entitled to relief[,]" as necessary to show good cause for discovery in a habeas case. Harris, 394 U.S. at 300. Both sides have produced declarations that tend to show OMDC may not be acting in compliance with the relevant CDC guidelines regarding how to respond to the COVID-19 crisis in detention facilities. It is not for the undersigned to evaluate the merits of the case; however, the bar for permitting discovery in a habeas case is low. Regardless of whether such potential deviations from CDC guidelines rise to the level of constitutional violations, Petitioners have shown that their conditions-of-confinement claims (and related remedy of conditions reforms) are not purely speculative, and have some basis in the record. Accordingly, the good cause standard for discovery in habeas cases is met, and Petitioners' request for expedited discovery in the form of a Rule 34 site inspection of OMDC is GRANTED.
D. Appropriate scope of Petitioners' requested on-site inspection
The breadth of the expedited discovery Petitioners request is relatively narrow. A Rule 34 site inspection of OMDC is directly related to Petitioners' claims for relief unrelated to their release request—their conditions reforms claims—on which they are considering seeking injunctive relief. Petitioners seek only a five-hour site inspection of OMDC to obtain information regarding whether the conditions of the USMS detainees' confinement are consistent with CDC guidelines and the Constitution. However, the Court agrees with Respondents that the scope of the site inspection should be narrowed further in some respects, to tailor it more carefully to the prospective relief at issue and to ensure the safety of the OMDC inmates.
First, the Court agrees that the Proposed Order does not sufficiently ensure that the requested site inspection will not itself violate CDC guidelines and safety protocols at OMDC. Therefore, the Court ORDERS that all participants in the site inspection must wear appropriate personal protective equipment, including gloves and surgical masks or N-95 masks. Petitioners' expert shall be permitted to speak in confidence to detainees at OMDC who are willing to speak to him, but he must maintain at least six feet of distance between himself and any inmate he interviews. Any interviewee must also use a face mask during the interview. Counsel for Respondents and Petitioners are ORDERED to meet and confer to try to agree to a protocol to make such an arrangement feasible without creating health or security concerns (i.e., to determine whether the interviews can take place without removing the inmates from their cells). If necessary for security purposes, the Court will consider permitting an OMDC staff member to be present during the expert's interviews of inmates. If the parties cannot agree to appropriate safety protocols, they should provide a brief status report to the Court at email@example.com no later than September 23 , 2020 outlining each side's proposed interview protocols. Each side's proposal shall be limited to three pages. However, Respondents should not use this opportunity as a chance to seek reconsideration of the Court's decision to allow Petitioners' expert to interview detainees generally.
Second, the Court agrees with Respondents that Petitioners' request to speak with criminal detainees confidentially without the consent of their defense counsel "raises serious attorney-client privilege issues." ECF No. 89 at 20 n.62. Accordingly, counsel for Petitioners are ORDERED to meet and confer with the Federal Defenders to determine whether they consent to interviews of Federal Defenders' clients regarding conditions of confinement at OMDC. Any detainee represented by another attorney may not be interviewed without consent of his or her counsel. See, e.g., Chunn, 2020 WL 1872523, at *2 (noting that the Attorney-in-Charge of the Federal Defenders for the Eastern District of New York consented to interviews of the Federal Defenders' clients during the site inspection).
Third, the Court rejects Petitioners' request for their expert to speak with OMDC staff confidentially and outside the hearing of the accompanying individuals assigned by Respondents. If Petitioners wish for their expert to speak to OMDC staff, one attorney for Respondents shall be permitted to attend the site inspection and may be present for any interviews of staff members by Petitioners' expert.
As for the scope of access, the Court finds that Petitioners have shown good cause for a site inspection of all areas listed in their Proposed Order, other than classroom areas and the commissary, which are not discussed in Petitioners' portion of the motion or in the declarations at issue.
Based on the foregoing, Petitioners' request for Rule 34 site inspection of the Otay Mesa Detention Center is GRANTED IN PART and DENIED IN PART.
It is hereby ORDERED as follows:
1. Date and timing of Inspection. Defendants shall permit an expedited Rule 34(a) inspection of Otay Mesa Detention Center ("Otay Mesa"), which will occur on a mutually agreed date within twenty-one days of the date of this Order. The inspection will start at a time agreed to by the parties and will last for five hours from when the participants have passed through security, with additional time (not to exceed thirty minutes) added for any delays.
2. Authorized Individuals. The following persons may attend the inspection:
(i) A correctional healthcare expert to be selected by Petitioners (at Petitioners' expense);
(ii) A Spanish-speaking interpreter provided by the Petitioners; and
(iii) A minimal number of other personnel necessary to guide Petitioners' expert through the facility, as determined and selected by Respondents.
3. Scope of Inspection. Petitioners' expert and the other authorized individuals will be permitted to inspect the following areas of the Otay Mesa facility:
(i) Communal areas and cells in all housing pods, including those used for administrative segregation and punitive segregation;
(ii) Dining and kitchen areas;
(iii) The medical unit's treatment rooms, common areas, communal sleeping bays, and medical isolation cells;
(iv) All recreational areas;
(v) All laundry facilities;
(vi) All communal shower/bathroom facilities;
(vii) The ingress/egress staff and visitor screening areas and attorney visit areas; and
(viii) Areas where cleaning supplies and personal protective equipment are maintained.
During the inspection, and subject to the consent of criminal defense counsel for any such persons, Petitioners' expert will be permitted to speak with persons detained in USMS custody who are willing to speak to Petitioners' expert in confidence and outside the hearing of the accompanying individuals assigned by Respondents, if feasible to do so safely.
Counsel for Petitioners are ORDERED to meet and confer with the Federal Defenders to determine whether they consent to interviews of Federal Defenders' clients regarding conditions of confinement at OMDC. No person in USMS custody and facing criminal charges may be interviewed by Petitioners' expert without the consent of his or her criminal defense counsel.
Counsel for Respondents and Petitioners are ORDERED to meet and confer to try to agree to a protocol to make confidential interviews of inmates feasible without creating health or security concerns. If the parties cannot agree to appropriate safety protocols for the interviews, they should provide a brief status report to the Court at firstname.lastname@example.org no later than September 23 , 2020 outlining each side's proposed interview protocols. Each side's proposal shall be limited to three pages.
Petitioners' expert will also be permitted to speak to OMDC staff members, but these conversations shall not be confidential. If Petitioners wish for their expert to speak to OMDC staff, one attorney for Respondents shall be permitted to attend the site inspection and may be present for any interviews of staff members by Petitioners' expert.
4. Equipment. Petitioners' expert may bring cameras, cell phones, writing implements, and any other equipment required to conduct the site visit. No photographs, videos, or audio recordings of detained persons shall be taken without their express consent.
5. Personal Protective Equipment and Safety Precautions. Petitioners' expert and all accompanying authorized individuals are required to wear full personal protective equipment to safely enable the inspection, including gloves and a surgical mask or N-95 mask. All persons present for the site inspection must ensure six feet of social distancing from all detainees within the facility at all times. Petitioners' expert may not be closer than six feet from any interviewee.
IT IS SO ORDERED. Dated: September 18, 2020
Honorable Allison H. Goddard
United States Magistrate Judge