Fla. Detainees May Get Partial Cert. In COVID-19 Suit

By Julia Arciga
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Law360 (May 22, 2020, 7:40 PM EDT) -- A Florida federal judge has recommended partial class certification for a group of detainees in three immigration detention centers who allege that the government failed to follow its own guidance to prevent the spread of COVID-19.

U.S. Magistrate Judge Jonathan Goodman recommended that class status be given for their condition of confinement claims: their demands requiring precautionary health measures and their claims that they were exposed to undue, increased risk of illness or death. However, the detainees' demands for release did not warrant class status, he ruled.

Judge Goodman said that materials submitted by the 58 detainees showed a "stressful scenario" where there were legitimate concerns over "COVID-19 risk" in Krome Detention Center, Broward Transitional Center and Glades County Detention Center.

Despite this, he didn't recommend class status for release demands, because determining who would leave he said required "individualized analysis" that did not meet commonality or typicality class requirements.

Senior litigation counsel Dexter Lee, representing U.S. Immigration and Customs Enforcement at a hearing last week, also voiced opposition to the Florida detainees being granted class status because of the individualized review requirement, which he said would be "lengthy and painstaking." Lee claimed the detainees would have to bring suits individually for release.

In April, the detainees filed their lawsuit claiming they were at "imminent risk" of contracting the coronavirus because their "detention renders them unable to follow the Center for Disease Control and Prevention's ... guidelines" for preventing the virus' spread.

The improper practices included, they said, the use of "cohort" quarantining in facilities, which kept potentially sick detainees away from supposedly healthy ones in large groups. The detainees also alleged lacking proper access to soap, hand sanitizer and prompt medical services.

The detainees sought class certification for all current and future civil immigration detainees at the three facilities. As of mid-May, numbers from ICE indicated there were 1,124 detainees at the three facilities.

In his report, Judge Goodman expressed skepticism that detainees would get their desired preliminary injunction or declaratory relief after ICE conducted transfers and releases to reduce the population at the three facilities. The agency was mandated to do so through an April 30 court order, which required that populations drop to 75 percent capacity for social distancing.

He said that COVID-19 didn't seem to affect the requirement of plaintiffs to "prove deliberate ignorance (as opposed to mere negligence) by government officials or their agents" in order to succeed in the eyes of appellate courts.

Scott M. Edson of King & Spalding LLP, who is representing the detainees, wrote in an email Friday they were "heartened that Judge Goodman recognized that remediating ICE's grossly inadequate performance in taking steps to protect the people in its care can be addressed on a classwide basis."

ICE public affairs officer Nestor Yglesias wrote in an email that the agency could not speak about pending litigation but said the "absence of specific comment should in no way be construed as agreement to anything in a particular lawsuit."

The detainees are represented by Rebecca Sharpless and Romy Louise Lerner of the University of Miami School of Law Immigration Clinic; Scott M. Edson, Kathryn S. Lehman and Chad A. Peterson of King & Spalding LLP; Gregory P. Copeland and Sarah T. Gillman of the Rapid Defense Network; Mark A. Prada and Anthony Richard Dominguez of Prada Urizar PLLC; Paul R. Chavez and Maia Fleischman of the Southern Poverty Law Center; Andrea Montavon-McKillip of the Legal Aid Service of Broward County Inc.; and Lisa M. Berlow-Lehner of Americans for Immigrant Justice.

The government is represented by Dexter Lee and Natalie Diaz of the U.S. Attorney's Office for the Southern District of Florida.

The case is Gayle et al. v. Meade et al., case number 1:20-cv-21553, in the U.S. District Court for the Southern District of Florida.

--Additional reporting by Nathan Hale and Carolina Bolado. Editing by Bruce Goldman.

For a reprint of this article, please contact reprints@law360.com.

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