Case 2:20-cv-04450-CBM-PVC Document 18-3 Filed 06/01/20 Page 1 of 9 Page ID #:771

1 Terry W. Bird – Bar No. 49038

tbird@birdmarella.com
2 Dorothy Wolpert – Bar No. 73213
dwolpert@birdmarella.com
3 *Naeun Rim – Bar No. 263558
nrim@birdmarella.com
4 Shoshana E. Bannett – Bar No. 241977
sbannett@birdmarella.com
5 Christopher J. Lee – Bar No. 322140
clee@birdmarella.com
6 Jimmy Threatt – Bar No. 325317
jthreatt@birdmarella.com
7 BIRD, MARELLA, BOXER,
WOLPERT, NESSIM, DROOKS,
8 LINCENBERG & RHOW, P.C.
1875 Century Park East, 23rd Floor
9 Los Angeles, California 90067-2561
Telephone: (310) 201-2100
10 Facsimile: (310) 201-2110
11 Peter J. Eliasberg – Bar No. 189110 Donald Specter – Bar No. 83925
peliasberg@aclusocal.org dspecter@prisonlaw.com
12 Peter Bibring – Bar No. 223981 Sara Norman – Bar No. 189536
pbibring@aclusocal.org snorman@prisonlaw.com
13 ACLU FOUNDATION OF PRISON LAW OFFICE
SOUTHERN CALIFORNIA 1917 Fifth Street
14 1313 West 8th Street Berkeley, California 94710
Los Angeles, CA 90017 Telephone: (510) 280-2621
15 Telephone: (213) 977-9500 Facsimile: (510) 280-2704
Facsimile: (213) 977-5297
16
Attorneys for Plaintiff-Petitioners
17
18 UNITED STATES DISTRICT COURT
19 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
20 YONNEDIL CARROR TORRES; CASE NO. 2:20-cv-04450-CBM-PVCx
VINCENT REED; FELIX SAMUEL
21 GARCIA; ANDRE BROWN; and [PROPOSED] TEMPORARY
SHAWN L. FEARS, individually and RESTRAINING ORDER AND
22 on behalf of all others similarly situated, ORDER TO SHOW CAUSE RE:
PRELIMINARY INJUNCTION
23 Plaintiff-Petitioners,
Filed Concurrently with Declaration of
24 vs. Naeun Rim; Declaration of Jimmy
Threatt; and Proposed Order
25 LOUIS MILUSNIC, in his capacity as
Warden of Lompoc; and MICHAEL Hon. Consuelo B. Marshall, Crtrm 8B
26 CARVAJAL, in his capacity as Director
of the Bureau of Prisons,
27
Defendant-Respondents.
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TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINA RY INJUNCTION

Case 2:20-cv-04450-CBM-PVC Document 18-3 Filed 06/01/20 Page 2 of 9 Page ID #:772

1 Pursuant to Federal Rules of Civil Procedure Rule 65 and Central District

2 Local Rule 65, Plaintiff-Petitioners (“Petitioners”) Yonnedil Carror Torres, Vincent
3 Reed, Felix Samuel Garcia, Andre Brown, and Shawn L. Fears, individually and on
4 behalf of all others similarly situated, submitted an ex parte application, with notice,
5 seeking a temporary restraining order that (1) establishes a court-supervised
6 evaluation process that allows for the immediate transfer or home confinement of
7 prisoners at FCI Lompoc and USP Lompoc (collectively “Lompoc”), until enough
8 people have been released to make the facilities safe, and (2) requires Defendant-
9 Respondents (“Respondents”) Louis Milusnic, Warden of Lompoc, and Michael
10 Carvajal to adopt and implement policies that, at minimum, adhere to CDC guidance
11 regarding prevention and treatment of COVID-19 in detention facilities.
12 After consideration of Petitioners’ application, the memorandum of points
13 and authorities, declarations, and evidence in support thereof, and the entire records,
14 the Court hereby GRANTS Petitioners’ application for temporary restraining order
15 and ORDERS Respondents to show cause why a preliminary injunction should not
16 issue.
17 The Court finds that Petitions have demonstrated (1) the likelihood of
18 immediate and irreparable harm to the lives and well-being of Lompoc prisoners
19 based on Respondents’ failure to protect them from the spread of COVID-19 and
20 failure to provide adequate medical care and monitoring for prisoners with
21 suspected and confirmed cases of COVID-19; (2) the law and facts clearly favor
22 Petitioners, and they are likely to succeed on the merits; (3), on balance, the equities
23 tip in Petitioner’s favor; and (4) the injunctive relief requested here is in the public
24 interest.
25 TEMPORARY RESTRAINING ORDER
26 Accordingly, pending hearing on the Order to Show Cause re: Preliminary
27 Injunction, it is hereby ORDERED that:
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1 Population and Facilities

2 (a) Respondents shall within 48 hours compile and file (1) under
3 seal a list of all prisoners that specifically identifies which prisoners are over age 50
4 and/or suffer from an underlying health condition that put them at high risk of
5 serious illness from COVID-19 according to the CDC (together the “medically
6 vulnerable prisoners”); and (2) a description of the process used to compile the list,
7 including identifying the database(s) searched;
8 (b) Respondents shall within 48 hours provide diagrams of the
9 facilities at Lompoc, with reasonably accurate measurements of the units; provide
10 information on the number of toilets, showers and sinks available in each unit, and
11 reasonably describe the type of beds available in the unit (cot, bunkbed, etc.);
12 Accelerated Consideration for Home Confinement or Compassionate
13 Release
14 (c) Respondents shall within 48 hours implement a process that
15 makes full and speedy use of the home confinement authority under 18 U.S.C. §
16 3624(b) and the CARES Act by (a) prioritizing for review for home confinement all
17 medically vulnerable prisoners identified on the list (but ultimately considering all
18 prisoners) (b) assigning substantial weight in that review to the prisoner’s risk
19 factors for COVID-19 based on CDC guidance, (c) eliminating all requirements that
20 the prisoner have served some portion of his or her sentence to be eligible for
21 placement on home confinement, (d) eliminating as a categorical exclusion the
22 requirement that a “primary or prior offense” not be a violent offense; (e)
23 eliminating as a categorical exclusion the requirement that the prisoner be “without
24 incident reports in the past 12 months (regardless of severity level)”; (f) modifying
25 any requirement that a person approved for home confinement be quarantined at the
26 facility for 14 days to allow for immediate release to home confinement for those
27 prisoners as to whom Respondents verify, after reasonable inquiry, that the prisoner
28 is able to self-isolate for the same period in the home confinement setting;

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1 (d) Respondents shall within 48 hours, notify prisoners that they are
2 being considered for home confinement and institute a process, including free
3 telephone calls or emails to their families, by which prisoners can provide
4 Respondents with a plan for release to home confinement, including any information
5 about their ability to quarantine for 14 days upon release;
6 (e) Respondents shall within 5 days, implement a process by which
7 prisoners who make a request for compassionate release based on COVID-19
8 receive notice of either referral or denial within 5 days;
9 (f) Respondents shall within 5 days, provide written notice of (a)
10 either a referral of the matter in writing with recommendation of approval of the
11 request or (b) denial of the request, together with the appropriate appeal form to
12 each prisoner identified who had made a written request for compassionate relief
13 based on COVID-19 but has not yet received a decision;
14 (g) Respondents shall within 5 days, file a statement on the docket
15 explaining whether and how the criteria in the BOP’s Program Statement governing
16 compassionate release have been updated to take account of the COVID-19 crisis,
17 and, if they have not been, showing cause why the Court should not require the
18 Warden to promulgate revised compassionate release criteria for use at Lompoc that
19 take full and appropriate account of the threat posed by COVID-19 to medically
20 vulnerable prisoner;
21 (h) Respondents shall within five days, provide to the Court and
22 Petitioners’ counsel a list of all prisoners considered to date under the home
23 confinement process, the results of that process, and for each denial of home
24 confinement to a medically vulnerable prisoner, provide an individualized
25 explanation of the denial with at least a brief description of the factual basis for any
26 factors deemed to outweigh the danger to the prisoner from COVID-19;
27 (i) Respondents shall within 7 days, provide to the Court and
28 Petitioners’ counsel an updated list of all prisoners considered to date under the

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1 home confinement process, the results of that process, and for each denial of home
2 confinement to a medically vulnerable prisoner, provide an individualized
3 explanation of the denial with at least a brief description of the factual basis for any
4 factors deemed to outweigh the danger to the prisoner from COVID-19;
5 (j) Respondents shall within 10 days, complete review of the home
6 confinement process and approve or deny each Lompoc prisoner home confinement;
7 (k) Respondents shall within 10 days, provide to the Court and
8 Petitioners’ counsel a final list of the results of the home confinement process for
9 each Lompoc prisoner and provide an individualized explanation of each denial of
10 home confinement to a prisoner identified to the Court as medically vulnerable,
11 including at least a brief description of the factual basis for any factors deemed to
12 outweigh the danger to the prisoner from COVID-19;
13 Implement Preventive Measures Against COVID-19
14 (l) Respondents shall provide adequate spacing of six feet or more
15 between people incarcerated, to the maximum extent possible, so that social
16 distancing can be accomplished. Within five days of this Order, establish and put
17 into effect a policy suspending, to the extent possible, the use of multi-person cells
18 (i.e., with more than two individuals). All housing units utilized shall be configured
19 to permit social distancing, to the maximum extent possible. If dormitory-style
20 housing must be utilized, those areas shall be reconfigured to allow six-feet between
21 prisoner beds to the maximum extent possible. Respondents shall submit a report to
22 the Court and Petitioners’ counsel within ten days detailing (i) the policy put into
23 effect, (ii) the housing cells occupied, and (iii) the number of prisoners in each cell.
24 Respondents shall submit updated reports on a weekly basis.
25 (m) Respondents shall within five days, provide to the Court and
26 Petitioners’ counsel an assessment of how many prisoners can be housed in each
27 unit while strictly adhering to CDC physical distancing guidelines along with an
28 explanation of the process by which those numbers were determined;

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1 (n) Respondents shall implement a policy designed to reduce

2 contacts between prisoners in all public places, including bathrooms and pill lines.
3 Respondents shall submit a report to the Court and Petitioners’ counsel within ten
4 days detailing the policy put into effect;
5 (o) Respondents shall within 24 hours, provide each cell and each
6 dormitory-style housing unit, at no cost, a supply of disinfectant hand wipes or
7 disinfectant products effective against the COVID-19 virus for daily cleanings. Any
8 disinfectant products shall be provided at the manufacturer’s required concentration
9 level and in sufficient quantities for prisoners to clean and disinfect the floor and all
10 surfaces of their housing unit. Either (1) disposable clothes to wipe surfaces shall be
11 provided, or (2) clean reusable rags shall be provided and replenished on a daily
12 basis;
13 (p) Respondents shall provide daily access to cleaning supplies at no
14 cost for prisoners to clean their cells, including showers, toilets, telephones, and
15 sinks. Supplies shall be disinfected before being shared between housing cells;
16 (q) Respondents shall require cleaning of any surface or area shared
17 by four (4) or more prisoners, for example tabletops, telephones, door handles,
18 television controls, equipment, and restroom fixtures. Surfaces and areas shall be
19 cleaned every hour from 7 a.m. to 10 p.m. with bleach-based cleaning agents;
20 (r) Respondents shall establish a protocol for monitoring and
21 supervising the regular sanitization of housing units, common areas, and surfaces.
22 Provide guidance to correctional staff to provide them with the knowledge needed to
23 oversee and assure that cleaning is adequate and effective. Within five (5) business
24 days of this Order, Respondents shall submit a certified report to the Court
25 identifying the procedures implemented to carry out these directives.
26 (s) Respondents shall provide masks for all prisoners and staff
27 members. If cloth masks are provided, such masks must be laundered sufficiently
28 regularly that prisoners and staff members can wear a freshly laundered mask each

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1 day. Users must be instructed on how to use the mask and the reasons for its use’
2 (t) Respondents shall require all Prison staff to wear personal
3 protective equipment, including masks and gloves, when interacting with any
4 person, distributing items to prisoners (e.g., mail and hygiene supplies), or when
5 touching surfaces in cells or common areas. Establish a system by which prisoners
6 can anonymously report any guards not wearing masks. Within five (5) days
7 business days of this Order, Respondents shall submit a certified report to the Court
8 identifying the procedures implemented to carry out these directives;
9 (u) Respondents shall ensure, to the fullest extent possible, that all
10 Prison staff wash their hands with soap and water or use hand sanitizer containing at
11 least 60% alcohol both before and after touching any person or any surface in cells
12 or common areas;
13 Reporting, Testing, and Isolation
14 (v) Respondents shall maintain a protocol through which an
15 incarcerated person may self-report symptoms of COVID-19 infection and to
16 evaluate those symptoms, including subjective symptom monitoring, and ensure that
17 each person who reports symptoms of COVID-19 is seen by medical staff within 8
18 hours of self-reporting. Within five (5) days business days of this Order,
19 Respondents shall submit a certified report to the Court identifying the procedures
20 implemented to carry out these directives;
21 (w) Respondents shall conduct immediate testing for anyone
22 displaying known symptoms of COVID-19 and submit a weekly list to the Court
23 and Petitioners’ counsel indicating (i) the number of tests performed that week (ii)
24 whether any prisoners or Prison staff have tested positive for coronavirus (iii)
25 number of current hospitalizations of prisoners from Lompoc (iv) deaths of Lompoc
26 prisoners that week and (v) population count;
27 (x) Respondents shall ensure that individuals identified as having
28 COVID-19, with symptoms of COVID-19, or having been exposed to COVID-19

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1 receive adequate medical care, including but not limited to being seen daily by
2 medical staff and having access to doctors, and are properly quarantined in a non-
3 punitive setting, with continued access to showers, mental health services, reading
4 materials, phone and video calling with loved ones, communications with counsel,
5 and personal property (to the extent reasonable and necessary to the prisoner’s
6 physical and mental well-being). Such individuals shall remain in quarantine and
7 wear face masks and gloves when interacting with other individuals until they are no
8 longer at risk of infecting other people. Facemasks must be replaced at medically
9 appropriate intervals. Within three days of this order, Respondents shall submit a
10 certified report to the Court identifying quarantine protocol, protocols and procedure
11 for monitoring and providing care to prisoners diagnosed with COVID-19, and the
12 standards and procedures that will be used to determine when individuals are no
13 longer at risk of infecting other people. The report shall be reviewed by a court-
14 appointed medical expert for its effectiveness;
15 (y) Respondents shall train all staff regarding measures to identify
16 prisoners with COVID-19, measures to reduce transmission, and the Prison’s
17 policies and procedures during this crisis (including those measures contained in this
18 Order).
19 Communication with Counsel
20 (z) Respondents shall ensure that Petitioners’ counsel have the
21 ability to promptly and confidentially communicate with prisoners.
22 ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION
23 Respondents are also hereby ORDERED TO SHOW CAUSE why
24 preliminary injunction shall not issue continuing the above Temporary Restraining
25 Order and is FURTHER ORDERED to appear before this Court in Courtroom 9C,
26 located at 350 West 1st Street, Los Angeles, CA 90012, on ______, 2020 at
27 ___:___a.m./p.m., or as soon thereafter as this matter may be heard. Petitioners
28 shall file any additional brief and supporting evidence for its requested motion for

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1 preliminary injunction by ________, 2020; Respondents shall file their opposition to

2 the motion for preliminary injunction by _______, 2020, and Petitioners shall file
3 their reply brief by ___________, 2020
4 IT IS FURTHER ORDERED THAT:
5 1. This Temporary Restraining Order is effective immediately upon
6 issuance;
7 2. A copy of this Order shall be served on Respondents via email by no
8 later than June ____, 2020.
9 AND
10 3. Respondents shall file status reports regarding compliance with this
11 order each Monday until the hearing on the Order to Show Cause why preliminary
12 injunction should not issue.
13 IT IS SO ORDERED.
14
DATED:
15
16
17 Hon. Consuelo B. Marshall
18 United States District Judge

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