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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. 107 Fed.R.Serv.3d 477. 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, 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. The appeal has not been assigned a USCA No. yet.

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. As of March 23, discovery is scheduled to be completed by April 30 and a pretrial conference is scheduled for July 13.

The case is ongoing.

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


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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 Granted
Mitigation Requested
Release Granted
Release Requested
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.
03/23/2021
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]
PC-CA-0079-0010.pdf | 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]
show all people docs
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
PC-CA-0079-0001 | PC-CA-0079-0010 | PC-CA-0079-0013 | PC-CA-0079-0015 | PC-CA-0079-9000
Plaintiff's Lawyers Bannett, Shoshana E. (California) show/hide docs
PC-CA-0079-0001 | PC-CA-0079-0002 | PC-CA-0079-0003 | PC-CA-0079-0004 | PC-CA-0079-0008 | PC-CA-0079-0011 | PC-CA-0079-9000
Bibring, Peter (California) show/hide docs
PC-CA-0079-0001 | PC-CA-0079-0002 | PC-CA-0079-0003 | PC-CA-0079-0004 | PC-CA-0079-0008 | PC-CA-0079-0011 | PC-CA-0079-9000
Bird, Terry W. (California) show/hide docs
PC-CA-0079-0001 | PC-CA-0079-0002 | PC-CA-0079-0003 | PC-CA-0079-0004 | PC-CA-0079-0008 | PC-CA-0079-0011 | PC-CA-0079-9000
Eliasberg, Peter J. (California) show/hide docs
PC-CA-0079-0001 | PC-CA-0079-0002 | PC-CA-0079-0003 | PC-CA-0079-0004 | PC-CA-0079-0008 | PC-CA-0079-0011 | PC-CA-0079-9000
Lee, Jumin (California) show/hide docs
PC-CA-0079-0001 | PC-CA-0079-0002 | PC-CA-0079-0003 | PC-CA-0079-0004 | PC-CA-0079-0008 | PC-CA-0079-0011 | PC-CA-0079-9000
Norman, Sara Linda (California) show/hide docs
PC-CA-0079-0001 | PC-CA-0079-0002 | PC-CA-0079-0003 | PC-CA-0079-0004 | PC-CA-0079-0008 | PC-CA-0079-0011 | PC-CA-0079-9000
Rim, Naeun (California) show/hide docs
PC-CA-0079-0001 | PC-CA-0079-0002 | PC-CA-0079-0003 | PC-CA-0079-0004 | PC-CA-0079-0008 | PC-CA-0079-0011 | PC-CA-0079-9000
Rocos, Oliver (California) show/hide docs
PC-CA-0079-0011 | PC-CA-0079-9000
Shin, Kate S (California) show/hide docs
PC-CA-0079-9000
Specter, Donald H. (California) show/hide docs
PC-CA-0079-0001 | PC-CA-0079-0002 | PC-CA-0079-0003 | PC-CA-0079-0004 | PC-CA-0079-0008 | PC-CA-0079-0011 | PC-CA-0079-9000
Threatt, Jimmy (California) show/hide docs
PC-CA-0079-0001 | PC-CA-0079-0002 | PC-CA-0079-0003 | PC-CA-0079-0004 | PC-CA-0079-0008 | PC-CA-0079-0011 | PC-CA-0079-9000
Wolpert, Dorothy (California) show/hide docs
PC-CA-0079-0001 | PC-CA-0079-0002 | PC-CA-0079-0003 | PC-CA-0079-0004 | PC-CA-0079-0008 | PC-CA-0079-0011 | PC-CA-0079-9000
Defendant's Lawyers Beck, Daniel A (California) show/hide docs
PC-CA-0079-9000
Green, Paul Bartholomew (California) show/hide docs
PC-CA-0079-0005 | PC-CA-0079-0006 | PC-CA-0079-0007 | PC-CA-0079-0009 | PC-CA-0079-0012 | PC-CA-0079-9000
Han, Chung H (California) show/hide docs
PC-CA-0079-0005 | PC-CA-0079-0006 | PC-CA-0079-0007 | PC-CA-0079-0009 | PC-CA-0079-0012 | PC-CA-0079-9000
Hanna, Nicola T. (California) show/hide docs
PC-CA-0079-0005 | PC-CA-0079-0006 | PC-CA-0079-0007 | PC-CA-0079-0009 | PC-CA-0079-0012
Harris, David M (California) show/hide docs
PC-CA-0079-0005 | PC-CA-0079-0006 | PC-CA-0079-0007 | PC-CA-0079-0009 | PC-CA-0079-0012
Osinoff, Joanne S (California) show/hide docs
PC-CA-0079-0005 | PC-CA-0079-0006 | PC-CA-0079-0007 | PC-CA-0079-0009 | PC-CA-0079-0012
Staub, Keith M (California) show/hide docs
PC-CA-0079-0005 | PC-CA-0079-0006 | PC-CA-0079-0007 | PC-CA-0079-0009 | PC-CA-0079-0012 | PC-CA-0079-9000
Thayer, Damon A (California) show/hide docs
PC-CA-0079-0005 | PC-CA-0079-0006 | PC-CA-0079-0007 | PC-CA-0079-0009 | PC-CA-0079-0012 | PC-CA-0079-9000
Yang, Jasmin (California) show/hide docs
PC-CA-0079-0005 | PC-CA-0079-0006 | PC-CA-0079-0007 | PC-CA-0079-0009 | PC-CA-0079-0012 | PC-CA-0079-9000
Other Lawyers Cullinane, Bryce Michael (California) show/hide docs
PC-CA-0079-9000
Keesal, Samuel A (California) show/hide docs
PC-CA-0079-9000
Newhouse, George B Jr (California) show/hide docs
PC-CA-0079-9000
Perovich, Stefan (California) show/hide docs
PC-CA-0079-9000

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