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Case Name Torres v. Milusnic PC-CA-0079
Docket / Court 2:20-cv-04450 ( C.D. Cal. )
State/Territory California
Case Type(s) Prison Conditions
Special Collection COVID-19 (novel coronavirus)
Attorney Organization ACLU Affiliates (any)
ACLU of Southern California
Prison Law Office
Case Summary
COVID-19 Summary: This is a putative class action by five individuals held at Lompoc, a low-security prison facing one of the largest outbreaks of COVID-19 among U.S. federal prisons. The plaintiffs alleged that the defendants failed to undertake reasonable preventative measures, which allowed the ... read more >
COVID-19 Summary: This is a putative class action by five individuals held at Lompoc, a low-security prison facing one of the largest outbreaks of COVID-19 among U.S. federal prisons. The plaintiffs alleged that the defendants failed to undertake reasonable preventative measures, which allowed the virus to spread to 60% of those in custody. The plaintiffs sought declaratory and injunctive relief for improved conditions of confinement, as well as a writ of habeas corpus for release. On July 14, the court granted the plaintiffs' motion for preliminary injunction and granted provisional class certification. On September 18, the court denied the defendant's July 2 motion to dismiss the case. On September 10, the plaintiffs had submitted a motion to enforce compliance with the preliminary injunction and an order to show cause which was granted on October 8. The case is ongoing.


On May 16, 2020, five individuals filed a putative class action against Lompoc, a low-security prison facing one of the largest outbreaks of COVID-19 among U.S federal prisons, for immediate relief on behalf of a proposed class of all current and future people in post-conviction custody at Lompoc. The plaintiffs alleged that the Warden of Lompoc and the Director of the Federal Bureau of Prisons (BOP) failed to adequately treat infected prisoners and implement reasonable health and safety measures, which resulted in 60% of the population at Lompoc testing positive. The plaintiffs also alleged that despite BOP’s broadened discretion to allow for home confinement during the pandemic, prisoners reporting symptoms were instead placed in solitary confinement in converted warehouses without medical care. Additionally, the plaintiffs alleged that because Lompoc was incapable of providing adequate medical care, continued confinement amounted to a violation of their Eighth Amendment rights.

Represented by the American Civil Liberties Union Foundation of Southern California and the Prison Law Office, the plaintiffs brought this action in the U.S. District Court for the Central District of California as a habeas petition under 28 U.S.C. § 2241, an injunctive action, and as a declaratory action under § 2201. The plaintiffs sought enlargement of custody to home confinement and for mitigation measures to be adopted in Lompoc to prevent the spread of COVID-19, including: social distancing, free soap, paper towels and cleaning supplies, access to hand sanitizer, daily showers, identification procedures for potentially infected inmates, and proper medical care for those who have COVID-19. The case was assigned to District Judge Consuelo. B Marshall and referred to Magistrate Judge Pedro V. Castillo on May 18.

On June 1, the plaintiffs filed an ex parte motion for a temporary restraining order and a preliminary injunction requiring Lompoc to undertake health and safety measures as well as a court-supervised process for individualized consideration of each prisoner’s suitability for release on an accelerated schedule. The plaintiffs also moved for class certification on June 4.

On July 2, the defendants moved to dismiss the case, claiming that the habeas claim failed because inmate placement decisions are not judicially reviewable and because the plaintiffs failed to exhaust other administrative remedies as required under the Prison Litigation Reform Act (PLRA). They also argued that the Eighth Amendment claim should be dismissed because the defendant did not act with deliberate indifference.

On July 14, the court granted the plaintiffs' motion for preliminary injunction and granted provisional class certification. 472 F.Supp.3d 713. The defendants were ordered to provide the court a list identifying all members of the class and evaluate each provisional class member’s eligibility for home confinement, giving substantial weight to the inmate’s risk factors for severe illness or death from COVID-19 based on age (over 50) or underlying health conditions, among other things.

On September 10, the plaintiffs submitted a motion to enforce compliance with the preliminary injunction and an order to show cause. The plaintiffs claimed that defendant's failure to promptly release approved class members and the denial of home confinement violated the terms of the preliminary injunction.

The court denied the defendant's motion to dismiss on September 18, finding that the plaintiffs asserted a proper habeas claim challenging the fact of their confinement, and that the habeas claim is not foreclosed by the requirements of the PLRA. The court also found that the plaintiffs plead sufficient facts to satisfy the objective prong of their Eighth Amendment claim by alleging that they are are at substantial risk of exposure to COVID-19 and to satisfy the subjective prong by alleging that the defendants have ignored, and therefore have been deliberately indifferent, to the known risks of COVID-19 based on the conditions at Lompoc. The court also disagreed with the defendants that the plaintiffs failed exhaust administrative remedies for their claims, noting that the plaintiffs' complaint alleges that “since the COVID-19 outbreak in Lompoc, those incarcerated have been denied access to the administrative remedy process,” and “[s]taff have not been accepting the forms required to initiate the process, claiming they cannot do so due to the exigency of the COVID-19 pandemic.”

The court-appointed inspector submitted a status report on the Lompoc facility regarding the conditions and the adequacy of the defendant's response to the pandemic. The inspector identified several deficiencies in several areas, including COVID-19 screening among detained people, lack of timely access to health care, and lack of infection control in housing areas.

On October 8, the court granted the plaintiffs' motion to enforce compliance with the preliminary injunction and ordered defendants to confirm that all eligible class members were released to home confinement, and, if some class members were denied release to provide an explanation to the court.

The parties attended multiple hearings over the next several months and on January 29, 2021 the plaintiffs filed another motion to enforce compliance with the preliminary injunction. After a motion hearing, the court set a March 26 deadline for the plaintiffs to provide support for their contention that the defendants impermissibly imposed categorical bars on inmates' eligibility for home confinement.

In February, an individual attempted to intervene and file an amended complaint. On March 2, the court rejected the intervention and refused to file the letter on the grounds that individual class members could not file amended complaints in a class action suit. On March 19, 2021, the intervenor appealed the case to the Ninth Circuit (Case No. 21-55305); however the appeal was dismissed in April for lack of jurisdiction.

On March 19, the plaintiffs filed an ex parte application to continue to modify the case schedule and authorize a doctor site visit, which the court granted on March 22. Shortly after this, on March 26, the plaintiffs filed a supplemental brief in support of their January 29 motion to enforce the preliminary injunction. They stated that in violation of the preliminary injunction, the defendants had denied home confinement for at least 285 inmates who had no demerits, and that other inmates were similarly denied for other "improper reasons," including that the defendants "do not consider inmates to be old or vulnerable enough." The defendants opposed this motion on April 2, stating that they had not used any factors to categorically disqualify inmates from home confinement eligibility, that they weighed all appropriate factors before coming to conclusions on individual inmates, and that they were moving as quickly as they were able.

The dispute was referred to Magistrate Judge Consuelo B. Marshall for mediation; however, the parties were unable to reach a settlement. Magistrate Judge Marshall released a Report and Recommendation on April 30, 2021, suggesting that the court require the defendants to: (1) re-evaluate certain class members for home confinement - especially those who had been denied solely based on time served and those who were denied for a prior offense that was more than 15 years old; (2) transfer class members who were determined eligible for home confinement within one month of each grant, or submit a declaration showing good cause for why they were unable to do so; (3) provide notice to future inmates in custody at Lompoc of the class definition and review them for home confinement within fourteen days of their arrival.

The defendants objected to the report on May 14 and on May 25, the defendants filed motions to vacate the court's July 14, 2020 preliminary injunction order and for summary judgment. The defendants argued that the plaintiffs could not meet their Eight Amendment burden because the evidence demonstrated that the defendants had acted wtih a high degree of care, rather than deliberate indifference. They also argued that no further relief was available to the plaintiffs because any further relief ordering transfer to home confinement would constitute a release order under the Prison Litigation Reform Act (PLRA), which cannot be enacted by a single district judge.

The plaintiffs filed responses to both motions on June 8, 2021, arguing that the preliminary injunction was still necessary to protect inmates, especially becasue vaccination rates in Lompoc remained low and thus the risk of death or serious illness from COVID-19 was still a very legitimate threat. They argued that the defendants had never truly complied with the preliminary injunction's requirements, and that their attempts to vacate the court's order and for summary judgment were just another attempt to skirt their responsibilities to protect those in their custody.The plaintiffs also argued that summary judgment was improper because material facts were still disputed, that the Eighth Amendment protects against conditions of confinement that were likely to cause serious illness and needless suffering, and that questions release orders under the PLRA were irrelevant for purposes of the summary judgment motion.

On August 27, 2021 the court accepted the magistrate judge's report and recommendation regarding the plaintiff's motion to enforce compliance with the preliminary injunction. 2021 WL 3829699

The case remains ongoing with the summary judgment motion still before the court.

Averyn Lee - 09/21/2020
Chandler Hart-McGonigle - 11/29/2020
Zofia Peach - 03/23/2021
Caitlin Kierum - 09/05/2021


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Issues and Causes of Action
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Issues
Constitutional Clause
Cruel and Unusual Punishment
Content of Injunction
Preliminary relief granted
COVID-19
Mitigation Denied
Mitigation Granted
Mitigation Requested
Population reduction/cap
Population-Medically vulnerable
Release Granted
Release granted-group
Release granted-individual
Release Requested
Release-process created/modified
Crowding
Crowding / caseload
Defendant-type
Corrections
General
Bathing and hygiene
Conditions of confinement
Sanitation / living conditions
Totality of conditions
Medical/Mental Health
Medical care, general
Medical care, unspecified
Plaintiff Type
Private Plaintiff
Special Case Type
Habeas
Type of Facility
Government-run
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
Ex parte Young (federal or state officials)
Ex Parte Young (Federal) or Bivens
Habeas Corpus, 28 U.S.C. §§ 2241-2253; 2254; 2255
Defendant(s) Director of the Bureau of Prisons
Warden of Lompoc
Plaintiff Description Five individuals held at Lompoc, a low-security prison. The provisional class is "all current and future people in post-conviction custody at FCI Lompoc and USP Lompoc over the age of 50, and all current and future people in post-conviction custody at FCI Lompoc and USP Lompoc of any age with underlying health conditions."
Indexed Lawyer Organizations ACLU Affiliates (any)
ACLU of Southern California
Prison Law Office
Class action status sought Yes
Class action status outcome Pending
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Source of Relief Litigation
Order Duration 2020 - n/a
Filed 05/16/2020
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Torres v. Milusnic
https://www.aclusocal.org
Date: May 16, 2020
By: American Civil Liberties Union
[ Detail ] [ External Link ]

Court Docket(s)
C.D. Cal.
08/31/2021
2:20-cv-04450
PC-CA-0079-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
C.D. Cal.
05/16/2020
Complaint - Class Action for Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus [ECF# 1]
PC-CA-0079-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
06/01/2020
Corrected Complaint - Class Action for Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus [ECF# 16]
PC-CA-0079-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
06/01/2020
Plaintiff-Petitioners' Notice of Ex Parte Application and Ex Parte Application for Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction; Memorandum of Points and Authorities [ECF# 18 (incl. 18-1 to 18-3)]
PC-CA-0079-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
06/04/2020
Plaintiff-Petitioners' Notice of Ex Parte and Ex Parte Application for Provisional Class Certification [ECF# 22 (incl. 22-1 to 22-4)]
PC-CA-0079-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
06/05/2020
Respondents' Opposition to Ex Parte Application for Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction (Part 1/3) [ECF# 25]
PC-CA-0079-0005.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
06/05/2020
Declaration in Support of Respondents' Opposition to Ex Parte Application for Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction (Part 2/3) [ECF# 25-1]
PC-CA-0079-0006.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
06/05/2020
Declarations in Support of Respondents' Opposition to Ex Parte Application for Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction (Part 3/3) [ECF# 25-2, 25-3]
PC-CA-0079-0007.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
06/11/2020
Plaintiff-Petitioners' Reply Supporting Ex Parte Application for Provisional Class Certification [ECF# 34]
PC-CA-0079-0008.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
07/02/2020
Respondents' Notice of Motion and Motion to Dismiss Under Fed. R. Civ. P. 12(b)(1) and 12(b)(6); Memorandum of Points and Authorities; and [Proposed] Order [ECF# 36 & 36-1]
PC-CA-0079-0009.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
07/14/2020
Order Re: Plaintiffs-Petitioners' Motion for Preliminary Injunction, and Ex Parte Application for Provisional Class Certification [ECF# 45] (472 F.Supp.3d 713)
PC-CA-0079-0010.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
07/14/2020
Plaintiff-Petitioners' Opposition to Respondents' Motion to Dismiss Under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) [ECF# 46]
PC-CA-0079-0011.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
07/21/2020
Respondents' Reply in Support of Motion to Dismiss [ECF# 52]
PC-CA-0079-0012.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
09/18/2020
Order Re: Respondents' Motion to Dismiss under FED. R. CIV. P. 12(B)(1) and 12(B)(6) [36] [ECF# 99]
PC-CA-0079-0013.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
09/25/2020
COVID-19 Inspection of BOP Lompoc by Dr. Homer Venters [ECF# 101-1]
PC-CA-0079-0014.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
10/08/2020
Order Granting Motion to Enforce Compliance with Preliminary Injunction and for Order to Show Cause [ECF# 105]
PC-CA-0079-0015.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
03/26/2021
Petitioners' Supplemental Brief in Support of Motion Regarding Respondents' Non-Compliance with the Court's Preliminary Injunction [ECF# 201]
PC-CA-0079-0017.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
04/02/2021
Respondents' Response to Petitioners' Supplemental Data Submission [ECF# 205]
PC-CA-0079-0018.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
06/08/2021
Plaintiff-Petitioners' Response to Defendants Respondents' Statement of Uncontroverted Facts and Conclusions of Law in Support of Motion for Summary Judgment [ECF# 257-1]
PC-CA-0079-0020.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
06/08/2021
Petitioners' Opposition to Respondents' Motion to Dissolve Preliminary Injunction [ECF# 258]
PC-CA-0079-0019.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
08/27/2021
Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge [ECF# 290] (2021 WL 3829699)
PC-CA-0079-0016.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
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Judges Castillo, Pedro V. Court not on record [Magistrate] show/hide docs
PC-CA-0079-0001 | PC-CA-0079-9000
Marshall, Consuelo Bland (C.D. Cal.) show/hide docs
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Bibring, Peter (California) show/hide docs
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Booth, Patrick (California) show/hide docs
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Eliasberg, Peter J. (California) show/hide docs
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Hart, Sophie Jedeikin (California) show/hide docs
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Lee, Christopher Jumin (California) show/hide docs
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Norman, Sara Linda (California) show/hide docs
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Rim, Naeun (California) show/hide docs
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Rocos, Oliver (California) show/hide docs
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Shin, Kate S (California) show/hide docs
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Specter, Donald H. (California) show/hide docs
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Threatt, Jimmy (California) show/hide docs
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Wolpert, Dorothy (California) show/hide docs
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Defendant's Lawyers Beck, Daniel A (California) show/hide docs
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Green, Paul Bartholomew (California) show/hide docs
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Han, Chung H (California) show/hide docs
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Tursi, Joseph William (California) show/hide docs
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Other Lawyers Cullinane, Bryce Michael (California) show/hide docs
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