Filed Date: March 30, 2020
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COVID-19 Summary: In this case filed March 30, 2020, by a particularly vulnerable immigration detainee, the Court granted release on April 5, holding that ongoing detention was unlawfully punitive given the grave threat posed by detention during the coronavirus pandemic. Additional detainees intervened, and the Court has granted additional releases and has converted the TROs ordering releases into preliminary injunctions. The Court certified a class, instituted procedures for bail applications from detainees within the class, and continued to grant temporary releases upon application. The defendants appealed the releases on October 2. Applications for release are ongoing and the appeal is pending.
On March 30, 2020, an individual lawful permanent resident, in removal proceedings in Detroit and detained by U.S. Immigration and Customs Enforcement (ICE) at the Calhoun County jail, filed this emergency habeas petition and complaint in the United States District Court for the Eastern District of Michigan. The plaintiff sued ICE and two of its officers, the acting director of the U.S. Department of Homeland Security (DHS), the Attorney General of the United States, and the director of the Michigan Department of Corrections (MDOC). The plaintiff claimed that her continued detention violated her Fifth Amendment rights by exposing her to substantial risk of illness and death. The plaintiff sought emergency relief via a writ of habeas corpus or an injunction "ordering Defendants to immediately release [Petitioner], with appropriate precautionary public health measures, on the grounds that her continued detention violates the Due Process Clause [of the Fifth and Fourteenth Amendments].” The case was assigned to Judge Judith E. Levy.
The case was prompted by the outbreak of COVID-19 in Michigan; as of April 5, 2020, there were "15,718 confirmed cases of COVID-19 and 617 known related deaths, with 238 confirmed cases within the [MDOC] system specifically." The outbreak resulted in public health measures emphasizing and enforcing social distancing throughout the area. However, the Centers for Disease Control and Prevention (CDC) "noted that many detention conditions create a heightened risk of danger to detainees," as detainees are unable to exercise effective social distancing and good hygiene measures. "Even the most stringent precautionary measures" to slow the spread of COVID-19 in detention facilities are likely to be inadequate; "medical experts at the Department of Homeland Security have warned that detention confinement creates a 'tinderbox scenario' where rapid outbreak is extremely likely, and extremely likely to lead to deadly results as resources dwindle on an exponential level." The spread of COVID-19 (for which there is no vaccine, known treatment, or cure) would be especially dangerous for detainees over the age of 50 or those with certain underlying health conditions such as lung, heart, and kidney disease.
The first plaintiff was 56 years old and asserted that she suffered from several health conditions, including essential primary hypertension and chronic obstructive pulmonary disease, making her particularly vulnerable to serious illness or death in the event that she contracts COVID-19. The plaintiff alleged that because of her underlying health problems and the conditions of confinement making disease prevention difficult, continued detention amounted to punishment and failed to ensure her safety and health, violating her right to due process. The plaintiff asserted that despite the measures taken by the facility to mitigate the risk of a COVID-19 outbreak, "due to her underlying serious health conditions, there is no communal holding facility where she could be incarcerated during the COVID-19 pandemic that would be constitutional."
The plaintiff simultaneously filed an application for a temporary restraining order (TRO) "requesting that the Court order Petitioner’s release during the pendency of her immigration proceedings due to the substantial risk to her health posed by COVID-19 as a result of Petitioner’s continued detention in the enclosed group environment endemic to the Calhoun County Correctional Facility."
On April 5, Judge Levy issued an opinion and order granting the application for TRO in part. Judge Levy ordered the defendants to release the plaintiff immediately, "subject to the following restrictions: Petitioner is subject to fourteen days of home quarantine; Petitioner must comply with all Michigan Executive Orders; and Petitioner must appear at all hearings pertaining to her removal proceedings." Judge Levy enjoined the defendants from arresting the plaintiff for civil immigration detention purposes until the State of Emergency in Michigan is removed and required them to show cause by April 10 as to why the TRO should not be converted into a preliminary injunction. Judge Levy concluded that the plaintiff established the likelihood of irreparable harm; "confinement at the Calhoun County Correctional Facility renders her substantially likely to contract COVID-19, and Petitioner’s severe health conditions render her substantially likely to suffer irreparable harm or death as a result." Moreover, Judge Levy found that the plaintiff was likely to succeed on the merits of her due process claim, stating that the release of the plaintiff was the only reasonable response to the substantial risk to her safety and that continued detention was "both unrelated and contrary to the government purpose of carrying out her removal proceedings." Lastly, Judge Levy concluded that the public interest favored the plaintiff's release because of the risk that her constitutional rights would be deprived absent an injunction and because her release would protect public health. 2020 WL 1672662. (The next day, Judge Levy issued an amended opinion and order adding a term of supervision for the plaintiff's release; "respondents may impose other reasonable nonconfinement terms of supervision.")
On the same day as she granted the first TRO, Judge Levy also granted a motion allowing two individuals to intervene. The intervenors, represented by the ACLU of Michigan and the law firm Paul Weiss, filed an emergency petition for writ of habeas corpus and complaint for injunctive relief, as well as an emergency motion for TRO. Judge Levy issued an order limiting the parties' responses to the intervenors' motion for TRO to whether the reasoning in the Court’s amended order applied to intervenors' motion. In that order, Judge Levy stated that the intervenors' motion raised substantially similar factual and legal issues as the plaintiff's application for TRO.
Following expedited briefing, on April 9, Judge Levy issued an opinion and order granting in part the intervenors' motion for a TRO, requiring that one of the intervenors be immediately released from detention for the duration of the COVID-19 State of Emergency in Michigan or until further Court order. The other intervenor who requested immediate release in the motion for TRO had already been released from ICE detention on an Order of Supervision. The intervenor who was granted immediate release from detention was 55 years old and suffered from hypotension, hernia, and prostrate issue. Judge Levy concluded that, although the intervenor presented a less severe risk than the plaintiff who had been granted immediate release, the intervenor was warranted immediate release "because he is at a sufficiently heightened risk of severe illness or death from COVID-19," applying the same reasoning used in the April 5 order for TRO. Moreover, Judge Levy found that the intervenor's "alleged incomplete access to medical care weighs in favor of granting relief." The defendants were required to show cause, by April 21, as to why the TRO should not be converted into a preliminary injunction. 2020 WL 1809675
On April 10 the defendants filed their response to the Court's order to show cause as to why the April 5 TRO should not be converted to a preliminary injunction. Defendants argued that "the Court erred in finding a high likelihood of irreparable harm because '[plaintiff] has not shown that she has a substantial risk of exposure to COVID-19 at CCDC.'" Moreover, the defendants asserted that the plaintiff did not demonstrate a likelihood of success on the merits because she “has not shown that Respondent is deliberately indifferent in light of the precautions taken at CCDC to reduce exposure
to COVID-19.” Lastly, the defendants contended that the plaintiff "cannot show that her continued detention amounts to impermissible punishment.”
A week later, on April 17, Judge Levy issued an opinion and order converting the April 5 TRO into preliminary injunction, requiring the plaintiff's continued release. In concluding that converting the TRO into a preliminary injunction was "appropriate and necessary," Judge Levy found that plaintiff was "at unreasonable risk of contracting COVID-19 should she remain in the Calhoun County Correctional Facility, regardless of precautions taken," and that she was at "serious risk of severe illness and death should she contract COVID-19." Judge Levy stated that "to order Petitioner’s continued civil detention would be to play Russian roulette with her rights and with her life." 2020 WL 1899570
In their response to the court's order to show cause, the defendants argued that a preliminary injunction was unwarranted with respect to the intervenor because the intervenor had not shown his risk of exposure to COVID-19 sufficiently to state a cognizable constitutional claim and because he had not shown that defendants acted with deliberate indifference. Furthermore, defendants argued that the public interest favors denying injunctive relief because releasing intervenor "would support a finding that it is unconstitutional for ICE to detain any noncitizen during the COVID-19 pandemic."
On April 22, Judge Levy issued an opinion and order converting her second TRO into a preliminary injunction, requiring release to last through the duration of the COVID-19 outbreak. Judge Levy concluded that injunctive relief was appropriate because intervenor had "shown a high likelihood of irreparable injury were he to be returned to the Calhoun County Correctional Facility, both in the form of substantial risk to his health and life from COVID-19 and due to his alleged constitutional violations." Moreover, Judge Levy found that intervenor's "age and mobility limitations place him at a high risk of severe complication and/or death from a COVID-19 infection," thus establishing a high likelihood of success on the merit of his deliberate indifference claim. Last, Judge Levy concluded that granting injunctive relief for this one highly vulnerable individual would not serve as precedent for releasing many non-citizens from immigration detention.
The plaintiffs then submitted yet another motion for a temporary restraining order, which made basically the same complaints as the previous ones. The defendants filed a response to that motion a few days later, and then, on May 12, Judge Levy issued an order partially granting that motion but as a preliminary injunction. She found that some, but not all, of the plaintiffs had demonstrated a risk of severe illness or death, and so granted the motion as to those individuals. She requested supplemental briefs from both sides, then issued another order on May 23. This second order granted release for two more plaintiffs.
On June 5, the plaintiffs submitted another motion for a TRO, which made the same arguments as the previous complaints, but with regard to different inmates. On June 28 the court granted that motion for all but one of the inmates named in that motion. All together, Judge Levy ordered about a dozen releases.
Meanwhile, on June 14, the plaintiffs also submitted a motion to certify the class. The proposed class was defined as "all noncitizens who are detained in Immigration and Customs Enforcement custody at Calhoun." The motion also contained a subclass, defined as "all noncitizens who are detained in ICE custody in the Calhoun County Correctional Center, and who have one or more risk factors placing them at heightened risk of severe illness or death if exposed to COVID-19." On July 31, the court granted class certification. The order certified a class of noncitizens detained in ICE custody at Calhoun and a habeas subclass of noncitizen detainees in ICE custody at Calhoun who have at least one medical problem that places them at greater risk of serious illness or death.
On August 4, Judge Levy issued an order establishing bail hearing procedures for the members of the habeas litigation subclass. The procedures included individualized bail hearings akin to criminal proceedings that consider danger and flight risks beginning on August 12 for members of the subclass, once the court had determined each individual's membership in the subclass. On August 19, Judge Levy issued an order amending the class and habeas litigation group definition to include "noncitizens formerly detained at the Calhoun County Correctional Facility and released as a result of an order issued by the undersigned." This order was issued to cover detainees with functionally identical claims who had individually applied for release and were no longer in custody, but still faced re-detention should their order or injunction expire or be overturned.
The defendants then filed a motion to amend the June 28 order granting the preliminary injunction that resulted in the release of six medically vulnerable detainees on the basis that a recent Sixth Circuit decision constituted an intervening change in controlling law rendering the decision an error in law. On August 25, Judge Levy issued an opinion and order denying the defendants' motion and holding that the decision was not at odds with the initial order and was not binding precedent because it was an unpublished opinion.
Between September 28 and October 22, Judge Levy issued four orders granting bail applications for six detainees, noting that Calhoun County Correctional Facility at that time had twelve positive cases for COVID-19. After receiving notice from Defendants that an additional thirteen detainees and two staff members tested positive for COVID-19 at Calhoun County Correctional Facility, the court held an emergency hearing to hear testimony on the surge in cases and precautionary measures on October 26. On October 27, Judge Levy issued an order requiring the defendants to submit a proposed plan to address the risks to detainees, particularly individuals that have been identified as high-risk detainees. Defendants submitted a response on October 27, highlighting segregated housing, bi-weekly testing, mask mandates in common areas for detainees and staff.
In the subsequent weeks, the plaintiffs alleged that the implementation of the defendants' plan failed to address the escalating crisis in the facility. The number of COVID cases among people incarcerated at the facility and the facility's employees increased. As such, because the class members were still being exposed to deliberate-indifference level of harm in the facility, Judge Levy granted the bail applications of eight class members deemed not to be a flight risk on November 30. 2020 WL 7027435. Judge Levy continued to grant additional bail applications in the following weeks. See, e.g., 2020 WL 7264756.
To get a better sense of the conditions at the facility, Judge Levy also ordered for an in-person inspection to be conducted by the plaintiff's expert. On January 7, 2021, Dr. Homer Venters submitted his report pursuant to this order. His report detailed "fundamental, structural issues" at the Calhoun County Correctional Facility that still persisted despite the defendants' precautions. Specifically, there was a lack of social distancing, a lack of comprehensive testing, and inadequate screening for COVID-19 symptoms. Dr. Venters concluded that the plaintiffs continued to raise substantial claims of law for habeas litigation group members because the risk of infection was too high for individuals with a pre-existing conditions.
Meanwhile, the defendants appealed to the Sixth Circuit multiple orders granting bail. These appeals remain pending while the case is ongoing.
Aaron Gurley (4/18/2020)
Jack Hibbard (8/3/2020)
Chandler Hart-McGonigle (11/1/2020)
Justin Hill (1/12/2021)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/17026196/parties/malam-v-rebecca-adducci/
Amaro-Luedtke, Caterina (Michigan)
Andrade, Monica (Michigan)
Atiya, Shahad (Michigan)
Aukerman, Miriam (Michigan)
Balakrishnan, Anand V. (New York)
Levy, Judith Ellen (Michigan)
Patti, Anthony P. (Michigan)
See docket on RECAP: https://www.courtlistener.com/docket/17026196/malam-v-rebecca-adducci/
Last updated June 29, 2023, 3:18 a.m.
State / Territory: Michigan
Filing Date: March 30, 2020
Case Ongoing: Yes
All noncitizens detained in ICE custody at Calhoun; subclasses are those with COVID-19 risk factors; noncitizens formerly detained at the Calhoun County Correctional Facility and released as a result of an order issued by the court
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Causes of Action:
Special Case Type(s):
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Order Duration: 2020 - None
Content of Injunction:
Type of Facility: