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Law360 (April 23, 2020, 4:55 PM EDT) -- A California federal judge has denied a request for detainees tasked with cleaning immigration detention center facilities to be given gowns and gloves to protect them from the coronavirus, concluding that doing so isn't in the public interest.
U.S. District Judge Jesus G. Bernal said Wednesday that given that there is a scarcity of personal protective equipment including masks, gloves and face shields for health care workers who are fighting the COVID-19 pandemic on the front lines, it is not in the public interest to allocate those resources to detainees.
While the detainees from the Adelanto Detention Center, operated by GEO Group Inc., did show that they are at high risk for contracting COVID-19, they didn't show that being forced to do more cleaning at the facility without protective gear put them at greater risk, Judge Bernal said.
"The marginal risk of infection posed by the lack of PPE or by increased work duties is difficult to extricate from the more generalized risk of harm posed by being detained," he said.
However, GEO should already be providing detainees with cloth masks to comply with the Centers for Disease Control and Prevention's guidelines for managing the coronavirus in correctional and detention facilities, Judge Bernal said.
The detainees requested personal protective gear on April 6 in their pending suit over forced labor after GEO called for more rigorous cleaning in the wake of the coronavirus. The detainees alleged that being forced to do more cleaning increased their risk for contracting the novel coronavirus and requested that GEO provide them with protective gear or hire more cleaning staff.
Judge Bernal rejected the detainees' request for additional cleaning staff to be hired, saying that it is not clear that having more people in the facility would reduce the detainees' risk of catching the virus.
The judge also made a point to scold the detainees' counsel for using nearly 160 footnotes in their temporary restraining order request. Judge Bernal said that on some pages footnotes took up half the page and the attorneys appeared to have "abandoned any attempt to include case and record citations in the body of the main text."
"The overuse of footnotes to scrounge additional lines of argument renders page limitations pointless and is unfair to defendant," Judge Bernal said, adding, "Questions of fairness aside, it is ineffective advocacy to force the reader to play a dizzying game of optical hopscotch."
The detainees' amended complaint was filed in December 2017 accusing GEO of forcing them to work at the Adelanto center without receiving California state minimum wage and of not providing them with basic food, water and hygiene products. They also alleged that GEO threatened to place detainees in solitary confinement or report them for criminal prosecution if they didn't work.
In response, GEO argued in July 2018 that the company has sovereign immunity because the voluntary work program is overseen by U.S. Immigration and Customs Enforcement and tried to have the suit tossed.
Judge Bernal denied GEO's dismissal bid in August of that year, ruling that the company hadn't sufficiently shown that ICE authorized the program, making GEO immune from the detainees' lawsuit.
The detainees' attorney, Daniel Charest, told Law360 Thursday that even though they are disappointed with Judge Bernal's decision, it was a victory to have the judge confirm that the detainees are suffering irreparable harm from the forced labor.
"The fact that they couldn't take the forced laborers off the work details and still operate safely shows you just how much of the work that GEO is supposed to be doing that they push off on the detainees," Charest said.
A GEO spokesperson told Law360 in a Thursday statement that the company has implemented "comprehensive steps" at all of its facilities "to address the risks of COVID-19" by providing detainees with access to regular handwashing, 24/7 health care and personal protective equipment.
"We take our responsibility to ensure the health and safety of all those in our care and our employees with the utmost seriousness," the spokesperson said.
The detainees are represented by Daniel H. Charest, Warren Burns and E. Lawrence Vincent of Burns Charest LLP.
GEO is represented by David Van Pelt, Adrienne Scheffey, Michael L. Gallion, Ashley Bobo, Colin L. Barnacle and Ashley E. Calhoun of Akerman LLP.
The case is Raul Novoa et al. v. The GEO Group Inc., case number 5:17-cv-02514, in the U.S. District Court for the Central District of California.
--Editing by Jack Karp.
For a reprint of this article, please contact reprints@law360.com.
