Jane Doe v. John Kelly ( 2017 )

  •                  FOR PUBLICATION
    JANE DOE, # 1; JANE DOE, # 2;            Nos. 17-15381
    NORLAN FLORES, on behalf of                   17-15383
    themselves and all others similarly
              Plaintiffs-Appellants/Cross-      D.C. No.
                                Appellees,   4:15-cv-00250-
    JOHN F. KELLY, Secretary, United           OPINION
    States Department of Homeland
    Security; KEVIN K. MCALEENAN,
    Acting Commissioner, United States
    Customs and Border Protection;
    RONALD VITIELLO, Chief, United
    States Border Patrol; JEFFREY SELF,
    Commander, Arizona Joint Field
    Command; PAUL BEESON, Chief
    Patrol Agent - Tucson Sector,
    2                           DOE V. KELLY
              Appeal from the United States District Court
                       for the District of Arizona
             David C. Bury, Senior District Judge, Presiding
                Argued and Submitted October 16, 2017
                      San Francisco, California
                         Filed December 22, 2017
        Before: Richard C. Tallman and Consuelo M. Callahan,
          Circuit Judges, and David A. Ezra,* District Judge.
                        Opinion by Judge Callahan
                                 Civil Rights
        The panel affirmed the district court’s preliminary
    injunction in an action brought by civil detainees confined in
    U.S. Customs and Border Protection facilities within the
    Tucson Sector of the U.S. Border Patrol who alleged they
    were subjected to inhumane and punitive treatment.
       The district court granted a preliminary injunction
    requiring that defendants provide detainees with mats and
          The Honorable David A. Ezra, United States District Judge for the
    District of Hawaii, sitting by designation.
           This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
                            DOE V. KELLY                          3
    blankets after 12 hours. Defendants appealed, alleging that
    the district court misapprehended the standard set forth in
    Bell v. Wolfish, 
    441 U.S. 520
     (1979), and that the order was
    too rigid and burdensome. Plaintiffs also appealed, alleging
    that the district court should have ordered defendants to
    provide the detainees with beds and mattresses, allow them
    access to showers, and deliver adequate medical care through
    medical professionals.
        The panel held that the district court carefully considered
    plaintiffs’ allegations of constitutional violations, recognized
    the guidance provided by the Supreme Court in Bell, and
    issued a limited preliminary injunction requiring defendants
    to provide detainees with mats and blankets after 12 hours.
    Defendants failed to show that, in doing so, the district court
    misapprehended Bell or that the preliminary injunction was
    overly rigid or burdensome.
        The panel found unpersuasive plaintiffs’ assertions that
    the district court should have required defendants to provide
    detainees with beds, showers, and medical treatment provided
    by medical professionals. The panel held that the district
    court recognized the unique mission of the Border Patrol and,
    at least for the purposes of a preliminary injunction,
    reasonably balanced the government’s interests and the
    detainees’ constitutional rights.
    4                      DOE V. KELLY
    James R. Sigel (argued), Robert J. Esposito, and Elizabeth G.
    Balassone, Morrison & Foerster LLP, San Francisco,
    California; Deanne E. Maynard, Sophia M. Brill, Bryan J.
    Leitch, and Lena H. Hughes, Morrison & Foerster LLP,
    Washington, D.C.; Louise C. Stoupe and Pieter S. de Ganon,
    Morrison & Foerster LLP, Tokyo, Japan; Colette Rainer
    Mayer, Morrison & Foerster LLP, Palo Alto, California;
    Linton Joaquin, Karen C. Tumlin, and Nora A. Preciado,
    National Immigration Law Center, Los Angeles, California;
    Kathleen E. Brody, Daniel J. Pochoda, and Brenda Muñoz
    Furnish, ACLU Foundation of Arizona, Phoenix, Arizona;
    James J. Cekola, Morrison & Foerster LLP, San Diego,
    California; Mary A. Kenney, Melissa E. Crow, and Aaron
    Reichlin-Melnick, American Immigration Council,
    Washington, D.C.; Elisa Della-Piana and Megan Sallomi,
    Lawyers’ Committee for Civil Rights of the San Francisco
    Bay Area, San Francisco, California; Abigail L. Colella,
    Morrison & Foerster LLP, New York, New York; for
    Christina Parascandola (argued), Trial Attorney; Sarah B.
    Fabian, Senior Litigation Counsel; William C. Peachey,
    Director; Chad A. Readler, Acting Assistant Attorney
    General, Civil Division; Office of Immigration Litigation,
    District Court Section, United States Department of Justice,
    Washington, D.C.; for Defendants-Appellees/Cross-
                            DOE V. KELLY                          5
    CALLAHAN, Circuit Judge:
        The influx of detainees in the Tucson Sector of the U.S.
    Border Patrol in 2015 resulted in Defendants (federal
    government officials and agents) holding detainees being
    processed for longer periods of time in overcrowded and
    unsanitary cells at eight different stations. Plaintiffs brought
    this action alleging inhumane and punitive treatment, and
    seeking injunctive relief. The district court granted a
    preliminary injunction requiring that Defendants provide
    detainees with mats and blankets after 12 hours. Defendants
    appeal, alleging that the district court misapprehended the
    standard set forth in Bell v. Wolfish, 
    441 U.S. 520
     (1979), and
    that the order was too rigid and burdensome. Plaintiffs also
    appeal, alleging that the district court should have ordered
    Defendants to provide the detainees with beds and mattresses,
    allow them access to showers, and deliver adequate medical
    care through medical professionals. We hold the district
    court did not abuse its discretion and properly applied
    precedent such that neither side has shown that the limited
    preliminary injunction is illogical, implausible, or without
    support in the record. United States v. Hinkson, 
    585 F.3d 1247
    , 1262 (9th Cir. 2009) (en banc).
                        I. BACKGROUND
        Plaintiffs filed this action in the United States District
    Court for Arizona on behalf of detainees confined in U.S.
    Customs and Border Protection Facilities within the Tucson
    Sector of the U.S. Border Patrol. The Border Patrol’s mission
    is to detect and prevent the entry of certain
    individuals—including terrorists, unauthorized aliens, drug
    6                      DOE V. KELLY
    smugglers, and other criminals—into the United States
    between ports of entry. The Tucson Sector patrols 262 miles
    of the United States-Mexico border in southern Arizona, and,
    according to Defendants, in fiscal year 2016, “apprehended
    64,891 individuals, the second highest of any Border Patrol
    sectors.” The number of individuals apprehended in the
    Tucson Sector varies widely. Defendants represent that
    between 2009 and 2016, apprehensions each month ranged
    “from a high of 31,432 in March 2009, to a low of 4,071 in
    July 2015.”
        When a Border Patrol agent apprehends an individual, the
    person is taken to one of eight stations in the Tucson Sector.
    At the station, the Border Patrol processes the detainee,
    ascertaining the individual’s identity and immigration and
    criminal history. The individual is then repatriated,
    transferred into the custody of another agency, referred for
    prosecution in accordance with the law or, in rare
    circumstances, released.
        Plaintiffs alleged that the conditions in the stations were
    deplorable and that it took up to three days for individuals to
    be processed before transfer. Plaintiffs alleged that:
           detainees are packed into overcrowded and
           filthy holding cells, stripped of outer layers of
           clothing, and forced to endure brutally cold
           temperatures. They are denied beds, bedding,
           and sleep. They are deprived of basic
           sanitation and hygiene items like soap,
           sufficient toilet paper, sanitary napkins,
           diapers, and showers. And they are forced to
           go without adequate food, water, medicine,
           and medical care.
                            DOE V. KELLY                           7
    In the fall of 2016, the district court certified the case as a
    class action. Plaintiffs then sought a preliminary injunction.
        A. The Standards for Reviewing Conditions of
        After setting forth the appropriate standards for issuing a
    mandatory preliminary injunction, the district court
    considered the standards for reviewing conditions of
    confinement. It first noted that when the government takes a
    person into custody, it must provide for the person’s “basic
    human needs—e.g. food, clothing, shelter, medical care, and
    reasonable safety.” DeShaney v. Winnebago Cnty. Dep’t of
    Soc. Servs., 
    489 U.S. 189
    , 199–200 (1989); see also Farmer
    v. Brennan, 
    511 U.S. 825
    , 832 (1994).
        Citing Bell v. Wolfish, 
    441 U.S. 520
    , 535 (1979), among
    other cases, the district court concluded that when evaluating
    the constitutionality of pretrial detention conditions, it had to
    determine whether the conditions amounted to punishment.
    Citing Demery v. Arpaio, 
    378 F.3d 1020
    , 1030 (9th Cir.
    2004), the district court explained that “[t]o constitute
    punishment, the governmental action must cause harm or
    disability that either significantly exceeds or is independent
    of the inherent discomforts of confinement.” The court noted
    that even in the absence of evidence of express intent, it may
    infer an intent to punish “if the restriction or condition is not
    reasonably related to a legitimate governmental objective or
    is excessive in relation to the legitimate governmental
    objective.” See Pierce v. Cnty. of Orange, 
    526 F.3d 1190
    1205 (9th Cir. 2008).
    8                       DOE V. KELLY
        The district court noted that the Supreme Court held that
    “[m]aintaining institutional security and preserving internal
    order and discipline are essential goals that may require
    limitation or retraction of the retained constitutional rights of
    both convicted and pretrial detainees.” Bell, 441 U.S. at 546.
    Indeed, the Supreme Court commented that “in the absence
    of substantial evidence in the record to indicate that officials
    have exaggerated their responses to these conditions, courts
    should ordinarily defer to their expert judgment in such
    matters.” Id. at 540 n.23 (quoting Pell v. Procunier, 
    417 U.S. 817
    , 827 (1974)).
        Based on these cases, the district court opined that a
    condition of confinement “violates the Fifth and Fourteenth
    Amendments if it imposes some harm to the detainee that
    significantly exceeds or is independent of the inherent
    discomforts of confinement and is not reasonably related to
    a legitimate governmental objective or is excessive in relation
    to the legitimate governmental objective.” See Kingsley v.
    135 S. Ct. 2466
    , 2473–74 (2015). This led the
    court to reason that decisions defining the constitutional
    rights of prisoners establish a floor for Plaintiffs’
    constitutional rights. See Padilla v. Yoo, 
    678 F.3d 748
    , 759
    (9th Cir. 2012). The district court concluded that it could
    presume Plaintiffs were being subjected to punishment “if
    they are confined in conditions identical to, similar to, or
    more restrictive than those under which the criminally
    convicted are held.” See Sharp v. Weston, 
    233 F.3d 1166
    1172–73 (9th Cir. 2000).
        The district court then observed:
            This is precisely the case here. Assistant
            Chief Patrol Agent for the Tucson Sector,
                           DOE V. KELLY                          9
           George Allen, admitted, when this Court
           asked him to compare the conditions of
           confinement at Tucson Sector Border Patrol
           stations with those afforded criminal detainees
           at the Santa Cruz County jail, that in jail,
           detainees have a bed, with blankets, clean
           clothing, showers, toothbrushes and
           toothpaste, warm meals, and an opportunity
           for uninterrupted sleep.        Likewise, the
           conditions of confinement . . . improve once
           they are transferred from Border Patrol
           holding cells to detention centers operated by
           the United States Marshals.
        The district court recognized that, in assessing the
    constitutionality of the conditions of confinement in the
    Border Patrol stations, due consideration had to be given to
    the nature, purpose and duration of an individual’s time in the
    station. The stations are 24-hour operations where many
    detainees arrive in the evening and at night. The holding
    rooms are not designed for sleeping and have no beds.
    “Defendants assert[ed] that providing sleeping facilities and
    turning off lights would require structural changes at the
    facilities, create safety risks, and impede its purpose to
    provide 24-7 immigration processing.” Defendants explained
    that when a detainee arrives at a station, outer-clothing is
    removed for security reasons, and detainees are placed into
    group-holding rooms based on age, gender, family units, or
    suspected criminal status. Processing includes obtaining
    biographical information and biometrics, submitting this
    information through the e3Nex Generation Identification
    system to determine prior criminal and immigration arrests,
    preparing an arrest report, immigration processing, consular
    notifications, and communication with family members and
    10                     DOE V. KELLY
    attorneys as appropriate. Processing, if uninterrupted, absent
    any remarkable criminal or immigration history, takes
    between two and two and one-half hours.
        But, there usually are interruptions. Discovery revealed
    that between June 10, 2015, and September 28, 2015, only
    about 3,000 of approximately 17,000 detainees were
    processed out of detention within 12 hours. About 8,644
    detainees were held at a Border Patrol station up to 23 hours;
    6,807 were held for up to 47 hours; 1,207 were held up to
    71 hours; and 476 were held for 72 hours or more.
        The district court accepted for purposes of the preliminary
    injunction that the Border Patrol’s 2008 Hold Rooms and
    Short Term Custody Policy (2008 Policy) and the National
    Standards on Transport, Escort, Detention and Search (TEDS
    standards) provided for constitutional conditions of
    confinement.      Although Defendants assert that these
    guidelines establish the status quo, the district court found
    that Plaintiffs had presented persuasive evidence that the
    basic human needs of detainees were not being met by
    Defendants’ current practices.
         B. Plaintiffs’ Specific Complaints
        1. Sleeping. The district court recognized that other
    detention facilities must provide individuals held overnight
    with beds and mattresses, and, thus, the absence of either
    violates the detainees’ due process rights. See Thompson v.
    City of Los Angeles, 
    885 F.2d 1439
    , 1448 (9th Cir. 1989),
    overruled on other grounds by Bull v. City & Cty. of San
    595 F.3d 964
     (9th Cir. 2010) (en banc); Anela v.
    City of Wildwood, 
    790 F.2d 1063
    , 1069 (3rd Cir. 1986). The
    court noted that of the 16,992 detainees held between June 10
                            DOE V. KELLY                          11
    and September 28, 2015, only 122 were recorded to have
    received a mat, and the others’ bedding needs were met with
    only a Mylar sheet/blanket. The court found that this was
    contrary to both the 2008 Policy and the TEDS standards. It
    further noted:
            the harshness caused by the lack of mats and
            the inadequacy of the Mylar blankets is
            compounded by the Defendants’ practices of
            keeping holding-cells lights turned on 24-7,
            feeding one of the three regular hot meals to
            detainees at 4:00 a.m., moving detainees in
            and out of holding cells throughout the night
            for processing, overcrowding cells which
            causes people to lie cramped together and
            next to toilet facilities or to sit or stand up,
            and because the hard concrete floors and
            benches retain the cold caused by low
            thermostat temperatures and make it too hard
            and cold to sleep.
        The district court found the holding cells to be spatially
    inadequate. The district court determined that “the holding-
    cell capacity numbers cannot accommodate the number of
    detainees being detained longer than twelve hours because
    detention of this duration requires them to lie down to sleep
    rather than sit up.”
        Defendants’ expert opined that the Border Patrol facilities
    were on par with short-term holding cells typically used
    during the booking process in jail facilities. The district court
    rejected the comparison because the booking process at a jail
    facility usually takes hours, instead of days. The district
    court, however, accepted that the holding cells need to be
    12                      DOE V. KELLY
    illuminated for security. On the other hand, it found no
    security or administrative reason “to wake up detainees by
    scheduling one of the three burrito meals at 4:00 a.m.”
        The court also found that the Mylar blankets do not
    provide insulation from the cold concrete, but merely prevent
    evaporation and retain 80% of body heat when wrapped
    around a person. In light of the sedentary nature of detention,
    the district court required that Defendants continue to monitor
    cell temperatures, which were maintained at temperatures
    between 71 and 74 degrees. The district court concluded that
    Defendants were violating Plaintiffs’ constitutional right to
    sleep, and ordered that Defendants provide detainees held for
    longer than 12 hours mats and Mylar blankets.
        2. Sanitation. The district court explained that a sanitary
    environment is a basic human need that must be met by all
    penal institutions. See Keenan v. Hall, 
    83 F.3d 1083
    , 1091
    (9th Cir. 1996). Plaintiffs’ expert opined that Defendants
    were not complying with their own standards, noting that:
    (a) all areas, including floors and toilets, were badly soiled;
    (b) hold rooms lacked trash receptacles; (c) toilet stalls lacked
    waste receptacles for sanitary napkins, diapers, and other
    bathroom waste; (d) cleaning supplies were not segregated
    from food storage; and (e) “cleaning crews did not appear to
    clean and sanitize common-touch points in detainee areas.”
    Although prison standards require one toilet for every
    12 male prisoners and one toilet for every 8 female prisoners,
    in most cases the number of toilets in each holding room was
    inadequate. One large holding room with a capacity of 88
    had one working toilet and one non-flushing toilet.
    Moreover, many toilets were combined sink/toilet fixtures
    with the sink fixture on top of the toilet creating a potential
    for contamination.
                            DOE V. KELLY                         13
        Defendants responded that all but one holding cell are
    cleaned twice a day, and that they had begun placing trash
    receptacles in the holding cells. Defendants further asserted
    that soap had been made available to detainees upon request,
    and that, where water fountains were inoperable, water
    coolers had been placed in the cells.
        The district court preliminarily ordered “compliance
    monitoring to ensure detainees have access to working toilets
    and sinks, soap, toilet paper, garbage receptacles, tooth
    brushes and toothpaste, feminine hygiene items, baby food,
    diapers and clean drinking water.”
        The district court was also critical of the lack of shower
    facilities. It noted that a person who had been trudging across
    the Arizona desert would likely be dirty, but only two stations
    had shower facilities, and those were sparsely used, generally
    for detainees who were suspected of having scabies. Only
    115 detainees out of the 16,992 held between June 10 and
    September 28, 2015 were given showers.
        Addressing the lack of shower facilities, the district court
    noted that jail standards require access to showers and
    washbasins with hot and cold running water, with daily
    showers available. Defendants responded that the lack of
    showers was not a problem because most detainees are
    transferred within 72 hours and TEDS standards only require
    that reasonable efforts be made to provide showers for
    detainees approaching 72 hours of detention.
        The district court was critical of Defendants’ failure to
    recognize the basic human need to wash during detention, but
    also noted that courts are extremely reluctant to find
    constitutional violations based on temporary deprivations of
    14                      DOE V. KELLY
    personal hygiene. Accordingly, the court preliminarily ruled
    that Defendants “need only provide some means or materials
    for washing and/or maintaining personal hygiene when
    detainees are held longer than 12 hours.”
        3. Medical Care. The parties agreed that Defendants are
    constitutionally required to provide ready access to medical
    care, but disagreed on the contours of this right. Plaintiffs
    challenged the adequacy of Defendants’ intake screening,
    alleging that: (1) the screening is performed by Border Patrol
    agents, not doctors, nurses, or other specially trained
    personnel; (2) Defendants do not maintain a medical
    treatment program capable of responding to emergencies
    because they do not have medical staff on site; and (3) “the
    practice of confiscating incoming detainees’ medication
    creates impermissible and heightened risk that detainees will
    experience a medical emergency.”
        Defendants responded that TEDS standards provide a
    system of ready access to adequate medical care. Before a
    detainee is placed in a hold room, an agent questions the
    individual and visually inspects for any sign of injury, illness,
    or physical or mental health concerns. Observed or reported
    injuries or illnesses are to be communicated to a supervisor
    and documented in the appropriate electronic system.
    Treatment plans and medication should accompany detainees
    when they are transferred or discharged. Defendants asserted
    they have personnel at the stations who can treat emergencies,
    and routinely transfer detainees to hospitals for emergency
        Plaintiffs’ expert, however, claimed that there was no
    evidence of any formalized screening process being carried
    out by agents at the detention centers. The e3DM data system
                            DOE V. KELLY                          15
    reflected around 527 incidents of medical treatment for
    approximately 17,000 detainees. The expert explained there
    are two components to screening: (1) immediate medical
    triage to determine whether there is any issue that would
    preclude acceptance into the facility, and (2) a more thorough
    medical and mental health screening. The expert was critical
    of the field screening because it was not done pursuant to any
    standardized protocol, and therefore did not adequately
    identify urgent or emergent health care needs or potentially
    communicable diseases.
        The district court preliminarily required compliance with
    TEDS standards, “including measures to ensure the Medical
    Screening Form currently being used by Defendants at some
    stations is used in all stations, and that the form ask questions
    to ensure compliance with TEDS standards for screening and
    delivering medical care.”
        C. Preliminary Injunctive Relief
        Having held that Plaintiffs were likely to succeed on the
    merits, the district court considered the other criteria for
    issuing a preliminary injunction. It held that Plaintiffs were
    likely to suffer irreparable harm due to the deprivation of
    constitutional rights in the conditions of confinement, which
    cannot be adequately remedied through damages. The
    balance of equities and public interest favored relief, in part,
    because the “government suffers no harm from an injunction
    that merely ends unconstitutional practices and/or ensures
    that constitutional standards are implemented.”             See
    Rodriguez v. Robbins, 
    715 F.3d 1127
    , 1145 (9th Cir. 2013).
    The district court concluded that Defendants “cannot sidestep
    reality by relying on the structural limitations of the Border
    Patrol detention facilities.” Rather, “[i]f detainees are held
    16                          DOE V. KELLY
    long enough to require them to sleep in these facilities, take
    regular meals, need showers, etc., then the Defendants must
    provide conditions of confinement to meet these human
    needs.” Although it found no evidence of intent to punish,
    the court found “no objectively reasonable relationship
    between 24-7 immigration processing or security and the
    conditions of confinement which Plaintiffs have preliminary
    shown exist in the Tucson Sector Border Patrol stations
    related to sleeping, sanitation, food, and medical care.”
         The court ordered:
             1. Clean bedding, which Defendants assert
             they are providing to all detainees, must
             include a mat and a Mylar blanket for all
             detainees being held longer than 12 hours.
             2. Personal hygiene needs of detainees held
             longer than 12 hours include the need to wash
             or clean themselves.
             3. Defendants shall implement the universal
             use of their Medical Screening Form at all
             stations and ensure that the form questions
             reflect the TEDS requirements for delivery of
             medical care to detainees.1
          The district court further ordered that “Defendants shall monitor for
    compliance the following: availability of working sinks and toilets and/or
    other materials sufficient to meet the personal hygiene needs of detainees
    on a per cell per station basis; cell temperatures; cell sanitation and
    cleanliness; delivery to detainees of bedding, including mats, personal
    hygiene items such as toilet paper, toothbrushes and toothpaste, feminine
    hygiene items, baby food, diapers, and meals.”
                           DOE V. KELLY                         17
       D. The January 3, 2017 Order
         Defendants sought reconsideration and modification of
    the preliminary injunction. The motion outlined the Border
    Patrol’s compliance with the preliminary injunction.
    Detainees were being provided with mats, showers were
    being offered to some detainees and others were being given
    body wipes to clean themselves, all stations were provided
    with the current medical screening forms, and all stations had
    been instructed to monitor for compliance with TEDS
    standards for medical screening. Defendants, however,
    sought reconsideration asserting that: (a) allowing detainees
    to lie down to sleep had significantly reduced the holding cell
    capacity numbers, and had interfered with their ability to
    transfer individuals efficiently; (b) compliance had increased
    processing time; (c) compliance had added obstacles to
    Defendants’ compliance with the Prison Rape Elimination
    Act, which requires separating and monitoring vulnerable
    populations; and (d) compliance had resulted “in prosecutions
    forfeited for lack of timely presentment.”
        The district court denied the request for reconsideration.
    It noted that providing detainees with mats and allowing them
    to lie down to sleep would always require that Defendants
    acquire more space. The district court was not persuaded by
    Defendants’ assertion that due to their 24-7 operational needs,
    they could not separate out detainees who approach 12 hour
    detentions. The court noted that it had seen empty cells
    adjacent to full cells and that Defendants admitted to
    separating out at-risk vulnerable population detainees. The
    court further stated that Defendants sought to suspend the 12-
    hour limit “without offering any plan or time-line for full
    compliance,” and the court “cannot suspend what it believes
    are constitutional rights.”
    18                          DOE V. KELLY
        The district court did clarify its order. It explained that:
    (1) for detainees held more than 12 hours, “Defendants must
    provide bedding, including mats and Mylar blankets and
    some means to maintain personal hygiene;” (2) the court “did
    not order Defendants to provide showers;” and (3) “the 12-
    hours begins to run from when the detainee arrives at the
                              III. ANALYSIS
         A. Standard of Review
        Plaintiffs are entitled to preliminary injunctive relief if
    they show: (1) likely success on the merits; (2) likely
    irreparable harm absent preliminary relief; (3) the balance of
    equities tips in their favor; and (4) an injunction is in the
    public’s interest. Pimental v. Dreyfus, 
    670 F.3d 1096
    1105–06 (9th Cir. 2012); Sierra Forest Legacy v. Rey,
    577 F.3d 1015
    , 1021 (9th Cir. 2009). Under our “sliding
    scale” approach, a stronger showing of one element may
    offset a weaker showing of another, as long as plaintiffs
    “establish that irreparable harm is likely.” All. for the Wild
    Rockies v. Cottrell, 
    632 F.3d 1127
    , 1131 (9th Cir. 2011).
        A preliminary injunction should be set aside only if the
    district court “abused its discretion or based its decision on an
    erroneous legal standard or on clearly erroneous findings of
    fact.” Puente Arizona v. Arpaio, 
    821 F.3d 1098
    , 1103 (9th
          Out of an abundance of caution, Defendants had initially calculated
    the 12 hours from the moment an individual was apprehended, rather than
    the individual’s “book-in to a station.” The clarification accommodated
    the Border Patrol’s concern that apprehensions often occur in remote areas
    long distances from their stations.
                             DOE V. KELLY                            19
    Cir. 2016) (quotation omitted). Legal conclusions are
    reviewed de novo. Pimental, 670 F.3d at 1105. A district
    court “necessarily abuses its discretion when it bases its
    decision on an erroneous legal standard.” Harris v. Bd. of
    Supervisors of Los Angeles Cnty., 
    366 F.3d 754
    , 760 (9th Cir.
    2004) (quoting Rucker v. Davis, 
    237 F.3d 1113
    , 1118 (9th
    Cir. 2001) (en banc), rev’d on other grounds, Dep’t of Hous.
    & Urban Dev. v. Rucker, 
    535 U.S. 125
        If the district court identifies the correct legal standard, “it
    will not be reversed simply because the appellate court would
    have arrived at a different result if it had applied the law to
    the facts of the case.” Am. Trucking Ass’ns, Inc. v. City of
    Los Angeles, 
    559 F.3d 1046
    , 1052 (9th Cir. 2009) (quotation
    omitted). Rather, the court only abuses its discretion when its
    application of the standard is “illogical, implausible, or
    without support in inferences that may be drawn from the
    record.” United States v. Hinkson, 
    585 F.3d 1247
    , 1262 (9th
    Cir. 2009) (en banc).
        Furthermore, we have held that the district court has
    broad discretion to fashion remedies once constitutional
    violations are found. Hoptowit v. Ray, 
    682 F.2d 1237
    , 1245
    (9th Cir. 1982), overruled on other grounds by Sandin v.
    515 U.S. 472
        B. The District Court Properly Read and Applied
           Bell v. Wolfish
        On appeal, Defendants assert that the district court
    misinterpreted and misapplied Bell. They argue that the court
    disregarded the Supreme Court’s caution against courts
    becoming enmeshed in the minutiae of facility operations and
    20                      DOE V. KELLY
    “failed to take any meaningful account of the unique nature
    of detention at Border Patrol facilities.”
        Defendants’ arguments are not well taken. The district
    court repeatedly cited Bell and recognized the Court’s
    admonition to defer to legitimate governmental objectives.
    However, the Supreme Court said much more. It set forth the
    standard for determining whether a condition of confinement
    was “imposed for the purpose of punishment or whether it is
    but an incident of some other legitimate governmental
    purpose.” 441 U.S. at 538. The Court noted that a condition
    would not constitute punishment if it was “reasonably related
    to a legitimate governmental objective.” Id. at 539. But if a
    condition “is arbitrary or purposeless—a court permissibly
    may infer that the purpose of the government action is
    punishment that may not constitutionally be inflicted on
    detainees.” Id. The district court applied this standard.
        At its core, Defendants’ objection that the district court
    “failed to take any meaningful account of the unique nature
    of detention at Border Patrol facilities” is not a challenge to
    the district court’s interpretation of Bell, but a disagreement
    with the application of Bell to the facts in this case. As such,
    Defendants must show an abuse of discretion—that the
    district court’s order “is illogical, implausible, or without
    support in inferences that may be drawn from the record.”
    Hinkson, 585 F.3d at 1262.
        The record reveals that the district court sculptured the
    relief granted to reflect the unique features of Border Patrol
    stations and field operations. It did so by requiring only mats
    and Mylar blankets instead of beds and mattresses, by
    allowing body wipes for cleaning rather than showers, and by
    allowing non-medical personnel to medically screen
                                 DOE V. KELLY                                21
    detainees.3 The limited injunction reflects the district court’s
    careful consideration of the unique nature of Border Patrol
    stations in light of Bell.
        The only aspect of the preliminary injunction that
    Defendants specifically challenge on appeal is the allegedly
    “rigid” requirement that they provide mats to all individuals
    detained for 12 hours or more. However, Defendants do not
    contest that detainees may sleep while in custody, or even
    that the 12-hour mandate might be workable in some cases.
    Rather, they argue that the rule “ignores the purpose of
    Border Patrol custody”; that it might be counterproductive if
    an individual arrives at the station in the middle of the night
    and is likely to be transferred in the afternoon; and, lacks a
    safety valve for a “surge” or other unforeseen situations.
        These arguments are not persuasive. First, it is not
    unreasonable to infer that a person who has been detained in
    a station for over 12 hours (after having been awake for some
    period of time before his detention) has a right to lie down
    and rest, even in the middle of the day. Second, it is by no
    means clear that providing detainees with mats after 12 hours
    is more burdensome than providing them with mats at any
    other time.4 Third, there is little to no evidence that providing
    detainees with mats interferes with the Border Patrol’s
    identification and processing of individuals. Fourth, there is
    nothing in the record to suggest that Defendants ever sought
          In addition, the district court allowed the lights in the holding cells
    to remain on all night. Plaintiffs do not challenge this on appeal.
          At oral argument, Defendants’ counsel stated that detainees are
    presently being given a blanket and mat when initially admitted to a
    holding cell.
    22                          DOE V. KELLY
    “surge” protection from the district court. Indeed, the Motion
    for Clarification alleged that providing detainees with mats
    would reduce the holding cells’ capacities. It did not allege
    that providing mats was in itself burdensome or that there was
    some need for flexibility.
        In light of the deference due the district court in
    fashioning preliminary relief, Hinkson, 585 F.3d at 1262,
    Defendants have not shown that the district court abused its
    discretion in granting the limited preliminary injunction.5
         C. Plaintiffs Have Not Shown that the District Court
            Abused its Discretion in Issuing Only a Limited
            Preliminary Injunction
        Plaintiffs have not shown that the district court’s
    application of the law concerning beds, showers, and medical
    care to the facts in this case is illogical, implausible, or
    “without support in inferences that may be drawn from the
    facts in the record.” Id.
            Defendants’ concerns that the preliminary injunction is “a
    derogation of fundamental principles of national sovereignty” or may
    violate the Immigration and Nationality Act because courts are prohibited
    “from fashioning class wide injunctive relief that would enjoin or restrain
    the operation of the detention provisions of the Act,” overstates the
    situation and the law. “Plaintiffs do not seek to prevent Defendants from
    inspecting, apprehending, excluding, or removing aliens,” and do not
    “challenge the government’s power to detain individuals who are
    suspected of crossing the nation’s borders without proper authorization.”
    Defendants have offered no case law suggesting that constitutional
    obligations may not indirectly implicate the manner and means by which
    the government carries out its responsibilities at the border. See
    Rodriguez v. Hayes, 
    591 F.3d 1105
    , 1120–21 (9th Cir. 2010).
                            DOE V. KELLY                         23
        1. Beds. Plaintiffs argue that detainees held overnight
    are entitled to beds and mattresses. See Thompson, 885 F.2d
    at 1448 (noting that “a jail’s failure to provide detainees with
    a mattress and bed or bunk runs afoul of the commands of the
    Fourteenth Amendment”). But given the unique purpose of
    Border Patrol stations and Defendants’ limited resources, the
    district court reasonably limited preliminary relief to mats
    and Mylar blankets. The purpose of the stations is to process
    the detainees as efficiently as possible so that they may be
    transferred to other facilities or released. Defendants assert
    that, absent the influx of detainees in 2015, processing a
    person should have taken two or three hours. Thus, were the
    stations operating as intended, there would never have been
    any need for a bed or a mat. Accordingly, the stations are not
    set up to accommodate beds. Defendants have neither the
    space for beds and mattresses, nor, presumably, beds and
    mattresses that might be immediately moved to the stations.
    Under these conditions, granting Plaintiffs the immediate
    preliminary relief of mats and Mylar blankets was reasonable.
    It provides Plaintiffs with actual relief without imposing a
    huge cost on Defendants to alleviate what might be a
    temporary need. Evidence as to whether the need was likely
    to continue would certainly be relevant to the district court’s
    determination of Plaintiffs’ request for a permanent
    injunction. However, the possibility of such evidence does
    not undermine the logic and reasonableness of the district
    court’s preliminary injunction, which provided immediate
    and effective, if limited, relief by requiring Defendants to
    provide mats and blankets.
       2. Showers. Plaintiffs assert that detainees have a right
    of access to showers. See, e.g., Toussaint v. McCarthy,
    597 F. Supp. 1388
    , 1399 (N.D. Cal. 1984) (holding that
    “minimum standards of decency require that lockup inmates
    24                      DOE V. KELLY
    without hot running water in their cells be accorded showers
    three times per week in facilities reasonably free of standing
    water, fungus, mold and mildew”), aff’d in part and rev’d in
    part by Toussaint v. McCarthy, 
    801 F.2d 1080
     (9th Cir.
    1986). However, practical considerations support the district
    court’s grant of limited relief allowing Defendants to provide
    Plaintiffs with body wipes to maintain a minimal level of
    personal hygiene. Apparently, only two of the eight stations
    even have showers. Moreover, unlike body wipes (and mats
    and blankets), which can be efficiently distributed, providing
    showers for thousands of detainees raises substantial security
    and logistical concerns. Diverting Defendants’ limited
    human resources to provide detainees with showers would
    almost certainly slow down the processing of detainees,
    thereby encumbering Defendants’ primary mission.
        Furthermore, although Plaintiffs have a right to hygiene,
    the Constitution does not requires access to a shower within
    12 hours or even 24 hours. The district court in Toussaint,
    held that inmates were entitled to showers three times a week.
    597 F. Supp. at 1399. But case law does not compel the
    conclusion that they have a constitutional right to a shower
    when detained for fewer than two days.
        3. Medical Care. There is no question that detainees are
    entitled to “adequate medical care.” See Toussaint, 801 F.2d
    at 1112 (“If plaintiffs correctly contend that unqualified
    personnel regularly engage in medical practice, precedent
    indicates that the prison health care delivery system may
    reflect deliberate indifference to plaintiffs’ medical needs.”);
    Hoptowit, 682 F.2d at 1252 (“Medical staffing is inadequate.
    Medical services are provided by nurse practitioners or
    physician assistants (mid-level practitioners), rather than
    physicians.”); Gibson v. Cty. of Washoe, 
    290 F.3d 1175
                                DOE V. KELLY                            25
    1187–89 (9th Cir. 2002). However, Plaintiffs have failed to
    show that the district court’s determination is not a reasonable
    application of case law to the particular facts in this case. In
    particular, precedent allows considerable flexibility as to
    when and how constitutionally “adequate medical care” is
        The cases cited by Plaintiffs concern settings different
    from those at issue here, and do not hold that all medical
    screening must be done by medical professionals. First,
    Hoptowit concerned medical care at the Washington State
    Penitentiary. 682 F.2d at 1245. We agreed with the district
    court that the existing conditions violated the Eighth
    Amendment. Id. (“The Eighth Amendment requires that
    prison officials provide a system of ready access to adequate
    medical care.”). However, we held that remedies ordered by
    the district court were overbroad, and that “the court could go
    no farther than to bring the medical services up to the
    constitutional minima.” Id. Although prisoners must be able
    “to make their medical problems known to the medical staff,”
    the referrals may be to “facilities outside the prison if there is
    reasonably speedy access to these other physicians or
    facilities.” Id. We were particularly critical of the district
    court’s order that the penitentiary hire full time physicians,
    stating that the court must first determine that the
    penitentiary’s use of outside services “could not meet the
    constitutional minimum.” Id. at 1254.6
            We explained:
              The district judge could find that in-prison staff was
              necessary if he found that the State’s approach was
              necessarily inadequate. He made no findings, however,
              concerning the availability and adequacy of treatment
              outside the prison. It could well be that with improved
    26                         DOE V. KELLY
        Second, Toussaint concerned conditions of confinement
    at four California prisons. 801 F.2d at 1085. Health care at
    the Folsom Prison was only one of the issues the Ninth
    Circuit addressed. Id. at 1111–12. We recognized that
    denying prisoners medical attention may constitute a
    violation of the Eighth Amendment “if the denial amounts to
    deliberate indifference to serious medical needs of the
    prisoners.” Id. at 1111 (citation omitted). However, we
    remanded the plaintiffs’ claim that the defendants placed “an
    unconstitutional degree of reliance on MTAs [medical
    technical assistants], registered nurses (RNs) and inmate
    workers.” Id. We explained:
            Defendants respond that MTAs, RNs and
            inmates are qualified to perform a number of
            services. If plaintiffs correctly contend that
            unqualified personnel regularly engage in
            medical practice, precedent indicates that the
            prison health care delivery system may reflect
            deliberate indifference to plaintiffs’ medical
            needs. Therefore, we must remand for entry
            mid-level staffing in the prison, improved
            transportation, and an adequate plan for medical
            treatment in the community, the approach taken by the
            State would be constitutionally permissible. Before the
            district judge ordered the prison to hire in-house
            physicians and effectively scrap its approach to medical
            services, he should have first determined that this
            approach could not meet the constitutional minimum.
            Absent such a finding, the district court should have
            ordered the prison officials to improve the in-house
            staffing and procedures within the framework of the
            penitentiary’s approach to medical services.
    Hoptowit, 682 F.2d at 1254.
                            DOE V. KELLY                         27
           of explicit factual findings regarding the
           nature of services performed by MTAs, RNs,
           and inmates, their level of medical
           qualification, and the level of qualification
           required to adequately render the services that
           they perform.
    Id. at 1111–12 (citation omitted). Thus, not all use of
    “unqualified” medical personnel is prohibited by the
    Constitution.     Rather, Toussaint proscribes having
    “unqualified personnel regularly engage in medical practice.”
        We find the third case cited by Plaintiffs, Gibson, to be so
    different from the case before us as to have little application.
    290 F.3d 1175
    . Stephen Gibson, who suffered from manic
    depressive disorder, died of a heart attack while resisting
    being moved to a special watch cell in the county jail. Id. at
    1181–83. His wife and children filed a § 1983 due process
    action against the Washoe County Sheriff’s Department
    alleging excessive force, deliberate indifference to Stephen’s
    serious mental health condition, and that the deputies’ actions
    resulted from the practices of the Sheriff’s Department. Id.
    at 1184. The district court granted summary judgment for the
    defendants. Id. at 1185. We reversed in part, holding that the
    County, but not the individual deputies, could be liable for
    deliberate indifference. Plaintiffs cite Gibson as establishing
    a right, at the intake stage, “to competent treatment
    encompass[ing] a right to prompt screening by medical staff,
    which is necessary to identify health emergencies, medication
    needs, and contagious diseases requiring quarantine.”
    Plaintiffs overlook that, in Gibson, we determined that the
    County’s potential liability for deliberate indifference was
    based on review of the County’s past practices and its
    28                          DOE V. KELLY
    policies.7 The record before us does not contain similar
    evidence of deliberate indifference by the Border Patrol to the
    detainees’ medical needs.
         Moreover, while Plaintiffs are entitled to adequate
    medical care, our precedent does not require that all stages of
    medical care be provided by trained medical staff. Rather,
    our opinions in Hoptowit and Toussaint held that, before
    directing an agency to retain medical personnel, a court must
    first evaluate whether the government’s proposed plan
    adequately meets the detainees’ medical needs.
         Defendants assert that Border Patrol agents have training
    as first responders, and that some have training as EMTs and
    Paramedics. They also represent that agents receive “training
    to identify communicable diseases and regularly interact with
    and observe detainees, and any detainee presenting any
    symptoms of such conditions is transferred to a hospital and
    provided medical care.”
       The record does not indicate that the existing system of
    medical care, as directed by the district court, is inadequate.
    The most that Plaintiffs have shown is a low percentage of
           We noted that it was the County’s policy that the jail’s medical unit
    be staffed 24 hours a day by licensed medical personnel and that when
    arrested, a person was to be medically screened. Gibson, 290 F.3d at
    1183. For many years, the County “had employed . . . a full-time clinical
    mental health worker at the jail to perform mental health screening,” but
    at the time of Gibson’s death the County did not have a mental health
    worker “because of a soured relationship between the jail’s medical staff
    and the mental hospital.” Id. at 1184. We stated that “the record suggests
    that the County not only knew that it had to treat the mentally ill in order
    to avoid harm, but that it had made a practice of ignoring this need.” Id.
    at 1191.
                                DOE V. KELLY                               29
    the detainees received medical treatment (3%), and a few
    incidents of inappropriate action.8 Indeed, there is no
    evidence of Defendants denying critical medical care to a
    detainee with dire consequences. As most detainees are
    released within a day or two, medical care may have been
    delayed, rather than denied.
        In addition, Defendants assert that complying with TEDS
    standards should provide detainees with adequate access to
    their prescriptions because these standards provide for
    detainees’ medications to “be self-administered under the
    supervision of an officer/agent,” and both parties’ experts
    agreed that “referring a patient to the hospital to obtain a U.S.
    prescription” is acceptable.
        Plaintiffs’ reply brief reveals little or no evidence of
    inadequate medical treatment of detainees. Plaintiffs
    question whether Border Patrol agents really receive training
    as first responders and note that very few have training as
    EMTs and Paramedics. This may be true, but says nothing
    about the adequacy of medical care currently delivered.
    Plaintiffs argue that it cannot be true that all medical issues
    are referred to the hospital when medical treatment is needed,
          Plaintiffs relate instances where: (1) the agents withheld a pregnant
    woman’s medication even though she yelled in pain, and told her not to
    cry because she was just going to be deported; (2) a woman’s medication
    for an ovarian cyst was confiscated and withheld for the 12 hours she was
    detained; (3) the government confiscated a woman’s migraine-headache
    medicine after she turned herself in to the Border Patrol; and (4) the
    government ignored a man’s plea for the prescription medication he
    needed to treat a painful heart condition. Accepting that these actions
    were wrong, Plaintiffs have not shown that the errors were not corrected.
    Moreover, they are not sufficient to establish a practice or policy that
    requires preliminary injunctive relief.
    30                      DOE V. KELLY
    because only 527 out of 17,000 detainees were referred to the
    hospital. But this low number is not unreasonable given that
    over half of the detainees are processed in less than 24 hours.
    Plaintiffs also argue that Defendants overstate their expert’s
    claims concerning their ability to identify and treat
    communicable diseases. But this is not evidence that
    detainees with symptoms of a communicable disease are not
    identified, segregated, and treated, if necessary. Finally,
    Plaintiffs challenge whether the practice of confiscating
    medications at intake is an acceptable practice, and argue that
    hearsay declarations concerning Plaintiffs’ medication claims
    are admissible at a preliminary injunction hearing. Again,
    this is not evidence that Defendants have not provided, or will
    not provide, adequate medical care.
        We do not question that Plaintiffs have real and
    substantial concerns with the adequacy of the medical care
    provided to detainees. Rather, we hold only that Plaintiffs
    have not shown that the district court abused its discretion in
    determining, as a preliminary matter, that Defendants, by
    complying with the TEDS standards, are providing adequate
    medical care. Plaintiffs have not carried their burden of
    showing that the district court’s decision is “illogical,
    implausible, or without support in inferences that may be
    drawn from the record.” Hinkson, 585 F.3d at 1262.
                        IV. CONCLUSION
        This litigation arises out of the influx of detainees in the
    Tucson Sector of the U.S. Border Patrol in 2015. The district
    court carefully considered Plaintiffs’ allegations of
    constitutional violations, recognized the guidance provided
    by the Supreme Court in Bell, 
    441 U.S. 520
    , and issued a
    limited preliminary injunction requiring Defendants to
                           DOE V. KELLY                        31
    provide detainees with mats and blankets after 12 hours.
    Defendants have failed to show that, in doing so, the district
    court misapprehended Bell or that the preliminary injunction
    is overly rigid or burdensome. We also find unpersuasive
    Plaintiffs’ assertions that the district court should have
    required Defendants to provide detainees with beds, showers,
    and medical treatment provided by medical professionals.
    Plaintiffs have not shown that the district court’s
    determinations were “illogical, implausible, or without
    support in inferences that may be drawn from the record.”
    Hinkson, 585 F.3d at 1262. The district court recognized the
    unique mission of the Border Patrol and, at least for the
    purposes of a preliminary injunction, reasonably balanced the
    government’s interests and the detainees’ constitutional
    rights. The district court’s orders are AFFIRMED.

Document Info

DocketNumber: 17-15381

Filed Date: 12/22/2017

Modified Date: 12/22/2017

Authorities (22)

Pell v. Procunier , 417 U.S. 817 ( 1974 )

Bell v. Wolfish , 441 U.S. 520 ( 1979 )

Department of Housing and Urban Development v. Rucker , 535 U.S. 125 ( 2002 )

DeShaney v. Winnebago County Dept. of Social Servs. , 489 U.S. 189 ( 1989 )

Sandin v. Conner , 515 U.S. 472 ( 1995 )

frederick-hoptowit-rick-rinier-steven-hopkins-david-rivera-robert , 682 F.2d 1237 ( 1982 )

Gibson v. County of Washoe, Nevada , 290 F.3d 1175 ( 2002 )

96 Cal. Daily Op. Serv. 3261, 96 Daily Journal D.A.R. 5331 ... , 83 F.3d 1083 ( 1996 )

jerry-r-sharp-curtis-beard-aka-tony-wilson-elmer-campbell-joel-scott , 233 F.3d 1166 ( 2000 )

antoinette-connie-anela-v-city-of-wildwood-maureen-mcdonnell-cole-v-city , 790 F.2d 1063 ( 1986 )

Robert E. Thompson v. City of Los Angeles, and County of ... , 885 F.2d 1439 ( 1989 )

gary-harris-susan-haggerty-an-individual-ping-yu-an-individual-luther , 366 F.3d 754 ( 2004 )

Joseph Toussaint, Plaintiffs/appellees/cross-Appellants v. ... , 801 F.2d 1080 ( 1986 )

pearlie-rucker-herman-walker-willie-lee-barbara-hill-v-harold-davis , 237 F.3d 1113 ( 2001 )

AMERICAN TRUCKING ASS'NS v. City of Los Angeles , 559 F.3d 1046 ( 2009 )

Farmer v. Brennan , 511 U.S. 825 ( 1994 )

Demery v. Arpaio , 378 F.3d 1020 ( 2004 )

Bull v. City and County of San Francisco , 595 F.3d 964 ( 2010 )

United States v. Hinkson , 585 F.3d 1247 ( 2009 )

Sierra Forest Legacy v. Rey , 577 F.3d 1015 ( 2009 )

View All Authorities »