Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 1 of 210 Page ID #:1 1 2 3 4 5 6 7 8 9 10 11 12 13 Timothy P. Fox (CA Bar 157750) tfox@creeclaw.org Elizabeth Jordan* ejordan@creeclaw.org CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 104 Broadway, Suite 400 Denver, CO 80203 Tel: (303) 757-7901 Fax: (303) 872-9072 Stuart Seaborn (CA Bar 198590) sseaborn@dralegal.org Melissa Riess (CA Bar 295959) mriess@dralegal.org Monica Porter (CA Bar 311974) mporter@dralegal.org Jessica Agatstein (CA Bar 319817) jagatstein@dralegal.org DISABILITY RIGHTS ADVOCATES 2001 Center Street, 4th Floor Berkeley, California 94704 Tel: (510) 665-8644 Fax: (510) 665-8511 14 15 16 17 18 19 20 21 22 23 William F. Alderman (CA Bar 47381) walderman@orrick.com Jake Routhier (CA Bar 324452) jrouthier@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 405 Howard Street San Francisco, CA 94105 Tel: (415) 773-5700 Fax: (415) 773-5759 26 27 28 Elissa Johnson* elissa.johnson@splcenter.org SOUTHERN POVERTY LAW CENTER 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 Fax: (404) 221-5857 Attorneys for Plaintiffs (continued on next page) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION – RIVERSIDE 24 25 Lisa Graybill* lisa.graybill@splcenter.org Jared Davidson* jared.davidson@splcenter.org Jeremy Jong* jeremy.jong@splcenter.org SOUTHERN POVERTY LAW CENTER 201 St. Charles Avenue, Suite 2000 New Orleans, Louisiana 70170 Tel: (504) 486-8982 Fax: (504) 486-8947 FAOUR ABDALLAH FRAIHAT; MARCO MONTOYA AMAYA; RAUL ALCOCER CHAVEZ; JOSE SEGOVIA BENITEZ; HAMIDA ALI; MELVIN MURILLO HERNANDEZ; JIMMY SUDNEY; JOSÉ BACA Case No. 19-cv-01546 CLASS ACTION Complaint for Declaratory and Injunctive Relief for Violations of the Due Process Clause of the Fifth Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 2 of 210 Page ID #:2 1 2 3 4 5 6 7 8 9 HERNÁNDEZ; EDILBERTO GARCÍA GUERRERO; MARTIN MUÑOZ; LUIS MANUEL RODRIGUEZ DELGADILLO; RUBEN DARÍO MENCÍAS SOTO; ALEX HERNANDEZ; ARISTOTELES SANCHEZ MARTINEZ; and SERGIO SALAZAR ARTAGA; on behalf of themselves and all those similarly situated; INLAND COALITION FOR IMMIGRANT JUSTICE, an organization; and AL OTRO LADO, an organization, 10 Plaintiffs, 11 v. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. DEPARTMENT OF HOMELAND SECURITY; KEVIN MCALEENAN, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; MATTHEW T. ALBENCE, in his official capacity as Acting Director, U.S. Immigration and Customs Enforcement; DEREK N. BRENNER, in his official capacity as Deputy Director, U.S. Immigration and Customs Enforcement; TIMOTHY S. ROBBINS, in his official capacity as Acting Executive Associate Director, Enforcement and Removal Operations; TAE JOHNSON, in his official capacity as Assistant Director of Custody Management, Enforcement and Removal Operations; STEWART D. SMITH, in his official capacity as Assistant Director, Immigration and Amendment and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, et. seq. Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 3 of 210 Page ID #:3 1 2 3 4 5 6 7 Customs Enforcement Health Service Corps; JACKI BECKER KLOPP, in her official capacity as Assistant Director of Operations Support, Enforcement and Removal Operations; and DAVID P. PEKOSKE, in his official capacity as Senior Official Performing Duties of the Deputy Secretary, Department of Homeland Security, 8 Defendants. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mark Mermelstein (CA Bar 208005) mmermelstein@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street, Suite 3200 Los Angeles, CA 90017 Tel: (213) 629-2020 Fax: (213) 612-2499 Christina Brandt-Young* cbrandt-young@dralegal.org DISABILITY RIGHTS ADVOCATES 655 Third Avenue, 14th Floor New York, NY 10017 Tel: (212) 644-8644 Fax: (212) 644-8636 Maia Fleischman* maia.fleischman@splcenter.org SOUTHERN POVERTY LAW CENTER 4700 Biscayne Blvd., Ste 760 Miami, FL 33137 Tel: (305) 537-0589 Fax: (786) 237-2949 Attorneys for Plaintiffs (continued from previous page) *Pro Hac Vice Application Forthcoming Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 4 of 210 Page ID #:4 1 2 3 TABLE OF CONTENTS GLOSSARY OF TERMS ........................................................................................ iv INTRODUCTION .................................................................................................... 1 4 PARTIES ................................................................................................................... 8 5 I. Plaintiffs ............................................................................................................ 8 6 II. Defendants ....................................................................................................... 29 7 JURISDICTION ..................................................................................................... 32 8 VENUE .................................................................................................................... 32 9 FACTUAL ALLEGATIONS ................................................................................. 32 10 III. Defendants Subject Thousands of Civil Detainees to Punitive Conditions Despite the Availability of Alternatives ......................................................... 32 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 IV. Defendants are Responsible for Selecting, Contracting, and Monitoring Conditions in Detention Facilities ................................................................. 41 V. Multiple Government Entities, Including DHS Itself, Have Concluded That Defendants Are Not Adequately Monitoring and Overseeing Detention Facilities ......................................................................................................... 47 VI. As a Result of Defendants’ Failure to Monitor and Oversee Medical and Mental Health Care at Detention Facilities, Conditions in Those Facilities Constitute Punishment and Expose Plaintiffs and Class Members to Substantial Risk of Serious Harm .................................................................. 62 A. Defendants Systemically Fail to Ensure That Detained Individuals Receive Timely Medical and Mental Health Care ..................................... 63 B. Defendants Systemically Fail to Ensure Timely Access to Medically Necessary Specialty and Chronic Care ...................................................... 72 C. Defendants Systemically Fail to Ensure That Care is Provided by Trained or Qualified Personnel .................................................................. 84 D. Defendants Systemically Fail to Ensure Detained Individuals Receive Timely Emergency Health Care ................................................................. 92 E. Defendants Systemically Fail to Ensure Adequate Physical and Mental Health Intake Screening ........................................................................... 101 F. Defendants Systemically Fail to Ensure Adequate Staffing of Medical and Mental Health Care ............................................................................ 108 28 COMPLAINT -i- CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 5 of 210 Page ID #:5 1 2 3 4 5 6 7 8 G. Defendants Systemically Fail to Ensure Adequate Mental Health Care .............................................................................................. 120 H. Defendants Systemically Fail to Ensure the Adequacy of Medical Records and Documentation. ................................................................... 126 VII. As a Result of Defendants’ Failure to Monitor and Oversee Segregation Practices at Detention Facilities, Conditions in Those Facilities Constitute Punishment and Subject Plaintiffs in Segregation and Members of the Segregation Subclass to Violations of the Fifth Amendment................... 130 A. Defendants Violate the Fifth Amendment by Failing to Ensure That Civil Detainees in Segregation Are Not Subjected to Punitive Conditions of Confinement ......................................................................................... 132 9 Defendants Subject Plaintiffs to a Substantial Risk of Serious Harm Through Their Failure to Monitor and Prevent Needless and Arbitrary Segregation ....................................................... 138 10 11 Defendants Fail to Monitor and Oversee Segregation Practices on a Systemic Scale ................................................................. 150 12 13 14 15 16 17 VIII. As a Result of Defendants’ Failure to Monitor and Oversee DisabilityRelated Practices in Detention Facilities, Plaintiffs with Disabilities and Members of the Disability Subclass Are Subjected to Violations of the Fifth Amendment and Section 504 of the Rehabilitation Act .................. 157 A. Section 504 of the Rehabilitation Act Prohibits Discrimination on the Basis of Disability by Executive Agencies .............................................. 157 Defendants Exercise Centralized Control Regarding Conditions Impacting Persons with Disabilities at Detention Facilities Nationwide ............................................................................... 159 18 19 Defendants Systemically Fail to Ensure Access to ICE Programs and Services for Detained Individuals with Disabilities. ........ 160 20 21 Defendants Systemically Fail to Ensure Adequate Screening to Identify, Track, and Accommodate Detained Individuals with Disabilities ............................................................................... 162 22 23 Defendants Systemically Fail to Prevent Improper Use of Segregation for Detained Individuals with Disabilities .......... 165 24 25 Defendants Systemically Fail to Provide People with Disabilities with Reasonable Accommodations, Auxiliary Aids, and Effective Communication ........................................................ 169 26 27 28 COMPLAINT - ii - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 6 of 210 Page ID #:6 Defendants Systemically Fail to Ensure Contractors do Not Subject Detained Individuals with Disabilities to Discrimination on the Basis of Their Disability ............................................... 177 1 2 3 4 5 B. The Fifth Amendment Prohibits the Federal Government from Subjecting Members of the Disability Subclass to Conditions That Rise to the Level of Punishment ........................................................................... 180 CLASS ALLEGATIONS ..................................................................................... 182 6 IX. Class ............................................................................................................. 182 7 X. Segregation Subclass .................................................................................... 184 8 XI. Disability Subclass ....................................................................................... 186 9 CLAIMS FOR RELIEF ....................................................................................... 189 10 FIRST CLAIM FOR RELIEF ............................................................................. 189 11 12 XII. Violation of the Due Process Clause of the Fifth Amendment: Failing to Monitor and Prevent the Challenged Practices (All Plaintiffs and the Class Against All Defendants) ............................................................................. 189 13 SECOND CLAIM FOR RELIEF ........................................................................ 190 14 16 XIII. Violation of the Due Process Clause of the Fifth Amendment: Failing to Monitor and Prevent the Segregation Practices (Organizational Plaintiffs, Segregation Plaintiffs, and the Segregation Subclass Against All Defendants) ............................................................................................... 190 17 THIRD CLAIM FOR RELIEF............................................................................ 191 18 20 XIV. Violation of Due Process Clause of the Fifth Amendment: Failing to Monitor and Prevent Disability-Related Practices That Constitute Punishment (Organizational Plaintiffs, Disability Plaintiffs, and Members of the Disability Subclass Against All Defendants) ................................. 191 21 FOURTH CLAIM FOR RELIEF........................................................................ 192 15 19 23 XV. Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (Organizational Plaintiffs, Disability Plaintiffs, and the Disability Subclass Against Defendants DHS, ICE, and IHSC) ............................................... 192 24 PRAYER FOR RELIEF ....................................................................................... 196 22 25 26 27 28 COMPLAINT - iii - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 7 of 210 Page ID #:7 GLOSSARY OF TERMS 1 2 3 4 5 6 7 8 9 10 11 12 A ACA ADA Adelanto AFOD AIC AILA Albany County Alexandria ASL Aurora American Correctional Association Americans with Disabilities Act Adelanto ICE Processing Center (CA) ICE Assistant Field Office Director American Immigration Council American Immigration Lawyers Association Albany County Correctional Facility (NY) Alexandria Staging Facility (LA) American Sign Language Aurora ICE Processing Center (CO) B Berks County BOP Brooks County Berks County Jail (PA) Bureau of Prisons Brooks County Detention Center (TX) C CCS CMD Corizon CORs CPR CRCL: Correct Care Solutions (now Wellpath) ICE Custody Management Division Corizon Correctional Healthcare Contracting Officer’s Representatives Cardiopulmonary Resuscitation Office of Civil Rights and Civil Liberties D DACA DDR Detention Facilities DHS DMC Dodge County DOJ DRC DSMs DWN Deferred Action for Childhood Arrivals Detainee Death Review Facilities that hold ICE detainees for more than 72 hours Department of Homeland Security Detention Monitoring Council Dodge County Detention Center (WI) Department of Justice Disability Rights California Detention Service Monitors Detention Watch Network 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT - iv - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 8 of 210 Page ID #:8 1 2 3 4 5 6 7 8 E EKG El Centro El Paso Elizabeth Eloy EMS ERO Essex Etowah Electrocardiogram El Centro Service Processing Center (CA) El Paso Processing Center (TX) Elizabeth Detention Center (NJ) Eloy Detention Center (AZ) Emergency Medical Services Enforcement and Removal Operations Essex County Correctional Facility (NJ) Etowah County Detention Center (AL) F Farmville Florence Folkston Immigration Centers of America—Farmville (VA) Florence Correctional Center (AZ) Folkston ICE Processing Center (GA) G GAO GEO Governmental Accountability Office The GEO Group Inc. H Hall County Hall HSA Henderson HIV Houston HRW HSA Hudson County Hutto Hall County Detention Center (GA) Hall County Jail (NE) Health Services Administrator Henderson County Jail (NV) Human Immunodeficiency Virus Houston Contract Detention Center (TX) Human Rights Watch Health Services Administrator Hudson County Correctional Facility T. Don Hutto Residential Center (TX) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I ICE ICIJ IGSA IHSC Imperial Inspection Worksheet Irwin COMPLAINT Immigration and Customs Enforcement Inland Coalition for Immigrant Justice Intergovernmental Service Agreement ICE Health Service Corps Imperial Detention Facility (CA) Detention Inspection Form Worksheet Irwin County Detention Center (GA) -vCASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 9 of 210 Page ID #:9 1 J Joe Corley Joe Corley Detention Center (TX) K Krome Krome Service Processing Center (FL) L LaSalle LVN LaSalle ICE Processing Center (LA) Licensed Vocational Nurse M Mesa Verde MRI Mesa Verde ICE Processing Center (CA) Magnetic Resonance Imaging N Nakamoto NIJC The Nakamoto Group Inc. National Immigrant Justice Center O OAM ODO OIG Orange County Otay Mesa Otero County ICE Office of Acquisitions Management ICE Office of Detention Oversight DHS Office of the Inspector General Orange County Jail (CA) Otay Mesa Detention Center (CA) Otero County Processing Center (TX) P Pahrump PBNDS Port Isabel PTSD Pahrump Detention Center (NV) Performance Based National Detention Standards Port Isabel Detention Center (TX) Post-Traumatic Stress Disorder R Rio Grande River Riverside RN Rolling Plains Rio Grande Detention Center (TX) River Correctional Center (LA) Riverside County Jail (CA) Registered Nurse Rolling Plains Correctional Facility (TX) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT - vi - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 10 of 210 Page ID #:10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 S Salt Lake San Bernardino County San Diego County San Luis San Pedro Section 504 SMRS South Texas/Pearsall Stewart Salt Lake County Jail (UT) San Bernardino County Detention Center (CA) San Diego County Detention Facility (CA) San Luis Regional Detention Center (AZ) San Pedro ICE Processing Center (CA) Section 504 of the Rehabilitation Act ICE’S Online Case Management System South Texas Detention Complex (TX) Stewart Detention Center (GA) T Tallahatchie Teller Theo Lacy TTY Tallahatchie County Correctional Facility (MS) Teller County Jail (CO) Theo Lacy Facility (CA) Teletypewriter U Utah County Utah County Jail (UT) V Victorville Victorville Federal Correctional Complex (CA) Y York County Yuba York County Detention Center Yuba County Jail (CA) COMPLAINT - vii - 19 20 21 22 23 24 25 26 27 28 CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 11 of 210 Page ID #:11 INTRODUCTION 1 2 1. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Immigration and Customs Enforcement (“ICE”), a component of the United States Department of Homeland Security (“DHS”). On a daily basis, Plaintiffs and the record number1 of immigrants currently in ICE custody are subjected to horrific, inhumane, punitive, and unlawful conditions of confinement. These human beings—many of whom have fled torture—are packed into immigration prisons in which they are denied healthcare; refused disability accommodations; and subjected to arbitrary and punitive isolation, a practice that is increasingly considered torture. Although ICE detains individuals in a patchwork—and currently ballooning— system of private prisons, county jails, and directly operated facilities, the inhumane and punitive conditions described herein are startlingly similar across the entire system. Far from coincidental, the commonality of these brutal conditions stems directly from ICE’s centralized policies, practices, and failures of meaningful oversight. The consequent risk of harm to detained individuals is substantial, irreparable, and ongoing. Dozens have unnecessarily died as a result of insufficient care. Countless more have endured needless suffering from delays in medical care, refusals to accommodate disabilities, and nearly constant isolation. Conditions in detention are so brutal that many people are forced to abandon viable claims for immigration relief and accept deportation out of a desperate desire to escape the torture they are enduring in detention on U.S. soil. 2. 23 24 25 26 27 28 Named Plaintiffs are men and women currently in the custody of Plaintiffs have a range of serious medical and mental health conditions including diabetes, cerebral palsy, chronic pain, hypertension, bipolar disorder, and schizophrenia. Plaintiffs have experienced the outright denial of care, delayed care, and substandard and insufficient care. For example, Plaintiff Alex Hernandez, who 1 Isabela Dias, ICE Is Detaining More People Than Ever—and for Longer, Pacific Standard (Aug. 1, 2019), https://psmag.com/news/ice-is-detaining-more-peoplethan-ever-and-for-longer. -1CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 12 of 210 Page ID #:12 1 has a torn rotator cuff, has been recommended for surgery by three separate 2 orthopedic specialists at three different facilities, but ICE has yet to provide the 3 surgery. Plaintiffs Martín Muñoz and Aristoteles Sanchez Martinez have diabetes 4 and were denied their daily dosages of insulin on multiple occasions. Plaintiff 5 Marco Montoya Amaya has a likely brain parasite but has not received any 6 treatment for over a year, despite risk of serious complications like seizures, 7 meningitis, and hydrocephalus. 8 3. Plaintiffs have also been subjected to arbitrary and unnecessary 9 segregation. For example, Plaintiff Hamida Ali has schizophrenia, depression, and 10 suicidal ideation. Although it is well known that prolonged isolation can both cause 11 and exacerbate depression and suicidality, Ms. Ali spent approximately nine 12 months in near-total isolation without even a guard adequately monitoring her 13 wellbeing. Plaintiff Jose Segovia Benitez likewise has been subjected to isolation, 14 notwithstanding the fact that it can exacerbate his depression and post-traumatic 15 stress disorder (“PTSD”). 16 4. Plaintiffs with disabilities have been denied appropriate 17 accommodations. For example, Plaintiff Raul Alcocer Chavez, who is Deaf, has 18 been denied an American Sign Language (“ASL”) interpreter in detention, which 19 has prevented him from receiving effective communication with medical staff and 20 his lawyer. Plaintiff Sergio Salazar Artaga, who has cerebral palsy and extreme 21 difficulty walking without falling, has been denied leg braces and delayed access to 22 a shower chair. Plaintiff Faour Abdallah Fraihat has knee and back pain and a disc 23 problem in his lower back that cause his legs to become numb when he tries to 24 walk more than ten to fifteen feet. He was denied a wheelchair for over two years 25 after staff took it away from him a month into being detained. 26 5. Defendants have the legal obligation to ensure that individuals in 27 immigration detention receive adequate care and accommodations. Defendants also 28 have the legal authority to release a substantial number of detained individuals on COMPLAINT -2- CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 13 of 210 Page ID #:13 1 their own recognizance, with bonds, or pursuant to other alternatives to detention, 2 all of which have proven cost-effective and successful at assuring immigrants 3 participate in their immigration proceedings. Defendants have nonetheless chosen 4 to detain Plaintiffs and a record number of other immigrants, many for months and 5 some for years. Some of these detained individuals are Lawful Permanent 6 Residents, refugees, or longtime U.S. residents, while others have arrived more 7 recently to seek asylum after fleeing persecution in their home countries. Though 8 many asylum seekers risked their lives by traveling across continents to lawfully 9 avail themselves of our nation’s asylum laws and have violated no criminal laws, 10 ICE chooses to detain them anyway. 6. 11 ICE may lawfully detain civilly, but not imprison criminally, 12 individuals it believes have no lawful basis for entering or remaining in the U.S. 13 ICE may release most detained noncitizens on bond or parole, but overwhelmingly 14 refuses to do so. 7. 15 16 This Complaint challenges the conditions in the approximately 158 facilities that hold ICE detainees for more than 72 hours (“Detention Facilities”).2 8. 17 On information and belief, ICE directly operates just five Detention 18 Facilities, and has chosen to contract for the operation of the remaining 153 19 facilities.3 The contractors include local sheriffs’ offices and private prison 20 corporations, such as GEO Group (“GEO”) and CoreCivic (formerly known as 21 Corrections Corporation of America), which have long histories of failing to 22 provide constitutional conditions of confinement for those they imprison.4 Based on 23 2 24 25 26 27 28 See ICE, List of Over-72-Hour ICE Detention Facilities, https://www.ice.gov/doclib/detention/Over72HourFacilities.xlsx. Upon information and belief, there may be additional ICE facilities operating that are not identified on this list. 3 See id. 4 See, e.g., Amanda Holpuch, Reports Reveal ‘Egregious’ Conditions in US Migrant Detention Facilities, The Guardian (June 7, 2019), COMPLAINT -3- CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 14 of 210 Page ID #:14 1 available data from ICE, at least half of Defendants’ detention beds are at facilities 2 operated by private, for-profit companies.5 Defendants’ choice to contract with 3 these entities, Defendants’ lack of oversight over the provision of care at Detention 4 Facilities, and Defendants’ failure to promulgate and enforce sufficient written 5 policies to govern the care of detained individuals subjects Plaintiffs and the Class 6 to a substantial risk of serious harm. 7 9. Because of the widespread unconstitutional conditions at ICE 8 detention centers, organizational plaintiffs Inland Coalition for Immigrant Justice 9 (“ICIJ”) and Al Otro Lado have had to divert substantial resources to responding to 10 those conditions, frustrating their respective organizational missions and interests in 11 empowering immigrants with disabilities. 12 10. ICE Health Service Corps (“IHSC”), a component of ICE, is 13 responsible for overseeing medical care at all of these facilities, and it directly 14 provides healthcare at some Detention Facilities.6 15 16 11. Defendants are also responsible for ensuring detained individuals receive reasonable disability accommodations and otherwise do not suffer 17 18 19 20 21 22 23 24 25 26 27 28 https://www.theguardian.com/us-news/2019/jun/07/us-migrant-detention-facilitiesegregious-conditions-reports; Ryan Devereaux et al., Immigrant Detainee Accuses ICE Contractor CoreCivic of Locking Him in Solitary Over $8, The Intercept (Apr. 19, 2018), https://theintercept.com/2018/04/19/solitary-confinement-immigrationdetention-ice-corecivic/; John Burnett, Miss. Prison Operator Out; Facility Called a ‘Cesspool,’ NPR (Apr. 24, 2012), https://www.npr.org/2012/04/24/151276620/firm-leaves-miss-after-its-prison-iscalled-cesspool. 5 Livia Luan, Profiting from Enforcement: The Role of Private Prisons in U.S. Immigration Detention, Migration Policy Institute (May 2, 2018), https://www.migrationpolicy.org/article/profiting-enforcement-role-private-prisonsus-immigration-detention. 6 ICE Health Services Corps, ICE, https://www.ice.gov/ice-health-service-corps; see also ICE Health Services Corps, ICE https://www.ice.gov/ero/ihsc. COMPLAINT -4- CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 15 of 210 Page ID #:15 1 discrimination based on disability, and they are also responsible for proper 2 monitoring and oversight of segregation and isolation practices and policies. 12. 3 Of the approximately 55,000 beds at Detention Facilities, a substantial 4 percentage are in rural areas, at least an hour away from services needed to provide 5 medical and mental health care or disability accommodations, far from attorneys 6 who could provide representation and advocate for better conditions, and far from 7 advocates, watchdog organizations, and media whose monitoring could expose or 8 prevent abusive and unconstitutional conditions.7 For example, Plaintiff Melvin 9 Murillo Hernandez is detained at LaSalle ICE Processing Center (“LaSalle”), a 10 two-and-a-half hour drive to the nearest Level 1 Trauma Center. Plaintiffs Faour 11 Abdallah Fraihat, Jimmy Sudney, José Baca Hernández, Jose Segovia Benitez, Luis 12 Manuel Rodriguez Delgadillo, Raul Alcocer Chavez, and Ruben Darío Mencías 13 Soto are all detained at Adelanto ICE Processing Center (“Adelanto”), and may 14 need to be taken to Los Angeles, approximately two hours away, for specialty care. 15 Plaintiff Aristoteles Sanchez Martinez is detained at Stewart Detention Center 16 (“Stewart”), over 45 minutes away from qualified medical specialists to handle 17 specialized treatment or emergency situations.8 13. 18 Specifically, Defendants have failed to ensure that conditions of 19 confinement in Detention Facilities comply with statutory and constitutional 20 requirements. As a result, unlawful conditions of confinement exist systemically 21 throughout immigration detention centers, and place Plaintiffs and members of the 22 Class at a substantial risk of serious harm. 23 7 24 25 26 27 28 See ICE, List of Over-72-Hour ICE Detention Facilities, supra note 2. See, e.g., Britnee Davis, Man Detained by ICE at Stewart Detention Center Dies in Columbus Hospital, Ledger Enquirer (July 25, 2019), https://www.ledgerenquirer.com/news/local/article233120673.html; see also Charles Bethea, A Medical Emergency, and the Growing Crisis at Immigration Detention Centers, The New Yorker (Sep. 13, 2017), https://www.newyorker.com/news/news-desk/amedical-emergency-and-the-growing-crisis-at-immigration-detention-centers. 8 COMPLAINT -5- CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 16 of 210 Page ID #:16 14. 1 Approximately 24 people have died in ICE custody in the last two 2 years.9 During this fiscal year alone, at least seven individuals in ICE custody have 3 died.10 15. 4 Defendants are fully aware of the deplorable conditions in Detention 5 Facilities. As described more fully below, Defendants have been informed 6 repeatedly—by their own inspection units, by other governmental inspectors and 7 agencies, by nongovernmental entities, and by numerous other sources—that 8 systemic unlawful conditions of confinement are rampant among its Detention 9 Facilities. Yet Defendants have consistently and repeatedly failed to take any 10 effective steps to monitor, oversee, and administer Detention Facilities, and to 11 ensure that these violations do not recur. Defendants have thus condoned or been 12 deliberately indifferent to the conduct that results in these unlawful conditions of 13 confinement. 16. 14 Likewise, Defendants fail to ensure detained Plaintiffs and similarly 15 situated detained individuals with disabilities receive equal access, reasonable 16 accommodations, and placement in the least restrictive and most integrated setting 17 possible in violation of Section 504 of the Rehabilitation Act (“Section 504”), 18 29 U.S.C. § 794. Defendants regularly deny assistive devices and therapy to 19 individuals with vision, hearing, and mobility disabilities. For example, Plaintiff 20 21 22 23 24 25 26 27 28 9 Lisa Riordan et al., 22 immigrants died in ICE detention centers during the past 2 years, NBC News, (Jan. 6, 2019), https://www.nbcnews.com/politics/immigration/22-immigrants-died-ice-detentioncenters-during-past-2-years-n954781; ICE News Release, ICE detainee passes away in Houston-area hospital (July 1, 2019), https://www.ice.gov/news/releases/ice-detainee-passes-away-houston-area-hospital; see also Ariana Sawyer, Another Needless Death in US Immigration Detention, Human Rights Watch (July 26, 2019). 10 ICE News Release, ICE detainee passes away in Houston-area hospital (July 1, 2019), https://www.ice.gov/news/releases/ice-detainee-passes-away-houston-areahospital; see also Ariana Sawyer, Another Needless Death in US Immigration Detention, Human Rights Watch (July 26, 2019). -6CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 17 of 210 Page ID #:17 1 Ruben Darío Mencías Soto, who has dislocated and herniated discs in his back, had 2 both his wheelchair and crutches taken away by detention staff leaving him without 3 an assistive device to walk and in immense pain. Defendants also regularly confine 4 those with mental health disabilities, as well as other disabilities, in restrictive 5 segregation housing because of their disabilities, often exacerbating underlying 6 conditions. Plaintiff Hamida Ali has schizophrenia, which was exacerbated when 7 she was left in isolation at Aurora ICE Processing Center (“Aurora”) for about nine 8 months. Plaintiff José Baca Hernández, who is blind, has not been provided 9 accommodations and has had to rely on other detained individuals to read his 10 immigration documents to him. 17. 11 Defendants have the legal obligation to ensure that the conditions of 12 confinement of individuals in their custody comply with statutory and constitutional 13 requirements by providing adequate health care, providing disability 14 accommodations, and ensuring that individuals are not subjected to punitive 15 isolation. Defendants, however, have utterly failed to live up to these obligations. 18. 16 Indeed, Defendants routinely ignore their responsibility to monitor and 17 oversee Detention Facilities. For example, in July 2019, four Colorado politicians 18 conducted an oversight visit to Aurora.11 They reported that ICE claimed it had no 19 medical authority at this facility or at other for-profit detention centers.12 20 21 11 22 23 24 25 26 27 28 Blair Miller, Colorado’s Congressional Democrats Tour Aurora ICE Facility, Call for Changes, The Denver Channel (Jul. 22, 2019 6:52 PM), https://www.thedenverchannel.com/news/politics/colorados-congressionaldemocrats-tour-aurora-ice-facility-call-for-changes-and-its-closure. 12 Denver 7, Colorado Dems Speak After Tour of ICE Facility, Facebook (Jul. 22, 2019, 12:16 PM), https://www.facebook.com/DenverChannel/videos/2358219197839326/UzpfSTU4 MDAwODE6MTAxMDYwNDQ1OTk4MzAzMzk/; U.S. Immigration & Customs Enf’t, Letter Response to February 28, 2019 Letter re: Public Health Risks & Treatment of Detainees at Detention Facilities (on file with Plaintiffs’ counsel). COMPLAINT -7- CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 18 of 210 Page ID #:18 19. 1 Further, according to a January 2018 report by the Detention Watch 2 Network (“DWN”) and National Immigrant Justice Center (“NIJC”), ICE 3 “aggressively seeks to weaken the standards that govern immigration detention.”13 20. 4 As a result, each year, Defendants’ detention policies and practices 5 place the mental and physical health of detained people at grave risk, deny them 6 reasonable accommodations, and otherwise subject them to discrimination on the 7 basis of disability. Absent intervention by this Court, Defendants will continue to 8 subject Plaintiffs and the Class to this unconstitutional and unlawful treatment. PARTIES 9 10 I. 11 Plaintiffs 21. Each named Plaintiff has been harmed and faces the ongoing and 12 substantial possibility of being harmed in the future by any of a number of systemic 13 failures by Defendants, including failure to ensure constitutionally adequate 14 medical and mental health care, failure to ensure that segregation is not improperly 15 administered, and failure to ensure that Detention Facilities comply with Section 16 504 of the Rehabilitation Act. 17 A. Plaintiff Faour Abdallah Fraihat 18 22. 19 20 21 22 23 24 Plaintiff Faour Abdallah Fraihat is 57 years old and currently detained at Adelanto. He is diagnosed with vision loss and mental health disabilities, and he uses a wheelchair for mobility. He is a qualified individual with a disability as defined in the Rehabilitation Act. Mr. Fraihat has required emergency care twice while detained at Adelanto, and he has been placed in segregation for medical reasons and denied access to any out-of-cell activities. 25 26 27 28 13 National Immigrant Justice Center & Detention Watch Network, ICE Lies: Public Deception, Private Profit, at 4 (Jan. 2018), https://www.immigrantjustice.org/sites/default/files/content-type/researchitem/documents/2018-02/IceLies_DWN_NIJC_Feb2018.pdf. -8CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 19 of 210 Page ID #:19 1 23. Mr. Fraihat has been in the United States for most of his life, and he 2 fears returning to Jordan because he has received death threats since converting 3 from Islam to Christianity. Prior to being detained, he was living in San Bernardino, 4 California, where he owned a successful construction business. Mr. Fraihat has 5 been detained at Adelanto since December 2016. He was previously detained by 6 ICE in three other facilities from 2004 to 2009. 7 24. Mr. Fraihat lost vision in his left eye while detained at Adelanto. He 8 was denied care as his vision deteriorated; ICE did not provide a surgery 9 recommended by an off-site doctor in April 2019. In July 2019, a doctor told Mr. 10 Fraihat that his vision could not be restored with laser surgery due to the degree of 11 his vision loss. He also continues to have pain in his left eye. 12 25. Upon arrival to Adelanto in December 2016, Mr. Fraihat reported an 13 issue with a disc in his back and knee and back pain. He was provided with a 14 temporary wheelchair, but it was taken away after a month, and he did not receive 15 another wheelchair until February 2019, after months of his daily requests going 16 unanswered. For the more than one year in between, Mr. Fraihat was unable to get 17 to the yard or to the cafeteria to eat. During that time, he had to rely on officers to 18 bring him food, which did not always occur, often requiring him to depend on food 19 he purchased from the commissary. 20 26. Plaintiff Faour Abdallah Fraihat challenges Defendants’ failure to 21 ensure constitutionally adequate medical and mental health care, failure to ensure 22 proper administration of segregation, and failure to ensure required 23 accommodations and other measures required to comply with Section 504 at 24 Detention Facilities. 25 26 27 B. Plaintiff Marco Montoya Amaya 27. Plaintiff Marco Montoya Amaya is 41 years old and currently detained at Mesa Verde ICE Processing Center (“Mesa Verde”). For over a year, he has had 28 COMPLAINT -9- CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 20 of 210 Page ID #:20 1 a tentative diagnosis of end-stage neurocysticercosis—a progressive, invasive, and 2 severe brain parasite—for which he has received no treatment. 3 28. Mr. Montoya Amaya has also been diagnosed with several mental 4 health conditions, and he regularly experiences memory loss and confusion, as well 5 as visual and auditory hallucinations. 6 7 8 9 29. Mr. Montoya Amaya is a qualified individual with a disability as defined in the Rehabilitation Act. 30. Mr. Montoya Amaya entered the United States in 2012 and lived in Napa, California. When he entered ICE detention, Mr. Montoya Amaya was 10 detained at the Yuba County Jail, and he was later transferred to the Mesa Verde 11 ICE Processing Center in March 2019. 12 31. Plaintiff Marco Montoya Amaya challenges Defendants’ failure to 13 ensure constitutionally adequate medical and mental health care, failure to ensure 14 proper administration of segregation, and failure ensure compliance with Section 15 504 at Detention Facilities. 16 17 18 19 20 21 22 23 24 25 26 27 C. Plaintiff Raul Alcocer Chavez 32. Plaintiff Raul Alcocer Chavez is 26 years old and currently detained at Adelanto Detention Center. He is Deaf, communicates in ASL, and is a qualified individual with a disability as defined in the Rehabilitation Act. 33. Mr. Alcocer Chavez has not been provided with an ASL interpreter. As a result, he did not at first understand that Adelanto is a Detention Facility, has had great difficulty communicating with medical staff, and has been asked to sign documents he did not understand. He has also never been able to access a videophone, and thus has never had a call with a lawyer. Instead, he has received only very limited access to a teletypewriter (a “TTY”), an outdated device that he has great difficulty using because his reading and writing skills in English are limited, and limited access to Skype, which he is currently prevented from using. 28 COMPLAINT - 10 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 21 of 210 Page ID #:21 1 34. Mr. Alcocer Chavez is a past Deferred Action for Childhood Arrivals 2 recipient from Mexico. Prior to being detained, he was living in Riverside, 3 California, and he graduated from the California School for the Deaf. Mr. Alcocer 4 Chavez has been detained at Adelanto since May 22, 2019. He has previously been 5 detained by ICE at Pahrump Detention Center in Nevada. 6 35. Plaintiff Raul Alcocer Chavez challenges Defendants’ failure to ensure 7 constitutionally adequate medical and mental health care and their failure to ensure 8 compliance with Section 504 at Detention Facilities. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 D. Plaintiff Jose Segovia Benitez 36. Plaintiff Jose Segovia Benitez is a 38-year old U.S. Marine Corps veteran. He served in the Marine Corps for five years and did two tours of duty, one for Operation Iraqi Freedom and one for Operation Enduring Freedom. He was brought to the United States when he was a toddler, and he grew up wanting to serve in the military and fight for his country as soon as he turned 18. He lived in Long Beach, California, before he was detained. 37. In 2003, while deployed, Mr. Segovia Benitez was badly hurt by an explosive device. He came home from service with depression, anxiety, hearing loss, traumatic brain injury, and combat PTSD. He is a qualified individual with a disability as defined in the Rehabilitation Act. 38. Mr. Segovia Benitez also has a heart condition. Since arriving at Adelanto in January 2018, where he has since been detained, he has informed his doctors of intermittent chest pain, dizziness, and other cardiology-related symptoms, for which treatment has been delayed or denied. On at least one occasion, he required emergency care to treat his heart condition. 39. Mr. Segovia Benitez has assisted in translating for deaf detainees at Adelanto; although he is not fluent in ASL, he took three semesters of ASL at community college. He has translated without any prompting from Adelanto, and 28 COMPLAINT - 11 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 22 of 210 Page ID #:22 1 he has assisted several deaf detainees in their requests to access the 2 accommodations and communication technologies to which they are entitled, and to 3 which Adelanto has denied them access. He has been deeply angered and frustrated 4 that deaf detainees do not have access to essential services they need. 5 40. Plaintiff Jose Segovia Benitez challenges Defendants’ failure to ensure 6 constitutionally adequate medical and mental health care and their failure to ensure 7 compliance with Section 504 at Detention Facilities. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 E. Plaintiff Hamida Ali 41. Plaintiff Hamida Ali is 28 years old and currently detained at the Teller County Jail in Colorado (“Teller”), which contracts with ICE to hold individuals in ICE custody. She was taken into ICE custody from the Salt Lake County Jail, where she was receiving psychotropic medications and had expressed suicidal ideation during her incarceration. She was transferred to ICE custody and taken to Aurora in October 2018. She has been diagnosed with schizophrenia for several years and is a qualified individual with a disability as defined in the Rehabilitation Act. Ms. Ali is a native Arabic speaker and speaks English with limited reading and writing skills. 42. Ms. Ali is a refugee from Sudan and has been in the United States for most of her life. Before her detention, she was living in Utah with her extended family and three young children, all of whom were born in Utah. Almost immediately after being transferred to ICE, she was placed on suicide watch and then isolated in a dorm alone for approximately nine months. As a result of her segregation, Ms. Ali experienced several episodes of extreme psychological distress and suicidal ideation. Since July 9, 2019, she has been in ICE custody at Teller County. 43. At least once since her transfer to Teller, she has had to stay overnight at Aurora for court and placed in isolation. Given ICE’s unpredictable transfer 28 COMPLAINT - 12 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 23 of 210 Page ID #:23 1 practices, Ms. Ali remains at risk of being returned to Aurora and placed back in a 2 dorm by herself or in another form of segregation at Teller or any other facility 3 where she is housed. 4 44. Plaintiff Hamida Ali challenges Defendants’ failure to ensure 5 constitutionally adequate medical and mental health care, failure to ensure proper 6 administration of the use of segregation, and failure to ensure compliance with 7 Section 504 at Detention Facilities. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 F. Plaintiff Melvin Murillo Hernandez 45. Plaintiff Melvin Murillo Hernandez is 18 years old and currently detained at LaSalle in Jena, Louisiana. 46. Mr. Murillo Hernandez has multiple life-threatening food allergies, for which he was not given a special diet for more than six months while in ICE custody. As a result, he has suffered seven severe allergic reactions, four of which required hospitalization due to anaphylactic shock. 47. Mr. Murillo Hernandez has been placed in medical segregation since arriving at LaSalle in May 2019, solely based on his severe allergies. Though he relied on other detained individuals to bring him to facility staff during previous anaphylactic shocks in which he lost consciousness, he is now confined alone in a cell 24 hours a day. Facility staff now bring all of his meals, which consist mostly of eggs and rice, to his cell. 48. Mr. Murillo Hernandez is a qualified individual with a disability as defined in the Rehabilitation Act. 49. Prior to being detained at LaSalle, Mr. Murillo Hernandez, was detained at Tallahatchie County Correctional Facility (“Tallahatchie”) and Mississippi and River Correctional Center (“River”). 26 27 28 COMPLAINT - 13 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 24 of 210 Page ID #:24 1 50. Plaintiff Melvin Murillo Hernandez challenges Defendants’ failure to 2 ensure constitutionally adequate medical and mental health care and their failure to 3 ensure compliance with Section 504 in Detention Facilities. 4 G. Plaintiff Jimmy Sudney 5 6 7 8 51. Adelanto. He has vision loss, mental health disabilities including PTSD, and high blood pressure, and is a qualified individual with a disability as defined in the Rehabilitation Act. 9 10 11 12 13 52. 16 17 18 19 20 21 22 23 24 25 26 Mr. Sudney came to the United States as a Lawful Permanent Resident in 2012 and lived in Chandler, Arizona. Prior to being arrested in July 2014, Mr. Sudney was studying nursing at Arizona State University and working as a medical technician and certified caregiver at senior living, memory care, and retirement facilities. 14 15 Plaintiff Jimmy Sudney is 28 years old and currently detained at 53. Prior to arriving at Adelanto in May 2018, Mr. Sudney was detained at Eloy Detention Center (“Eloy”), where he had been in ICE custody since December 2016. 54. Mr. Sudney has experienced numerous delays in care for his vision. Prior to being transferred to ICE, he had two surgeries to address his vision loss, but was transferred before his third scheduled surgery in December 2016. The third surgery was scheduled to address glaucoma, a second-degree cataract, and a detaching retina. While at Eloy, Mr. Sudney required emergency off-site care related to his eye on three separate occasions. Mr. Sudney continues to lose vision in his eye—it is blurry when he reads, stays red, and he is starting to see flashing light and dripping on his eye. 55. In retaliation for filing a grievance against an officer, Mr. Sudney was improperly placed in segregation at Adelanto for a week. While in isolation, Mr. 27 28 COMPLAINT - 14 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 25 of 210 Page ID #:25 1 Sudney heard banging in and around his cell that triggered a PTSD flashback in 2 which he relived the earthquake in Haiti where his house collapsed around him. 3 56. Plaintiff Jimmy Sudney challenges Defendants’ failure to ensure 4 constitutionally adequate medical and mental health care, failure to ensure proper 5 administration of the use of segregation, and failure to ensure compliance with 6 Section 504 at Detention Facilities. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H. Plaintiff José Baca Hernández 57. Plaintiff José Baca Hernández is 23 years old and currently detained at Adelanto. Mr. Baca is blind and is a qualified individual with a disability as defined in the Rehabilitation Act. 58. Mr. Baca has been in the United States for most of his life. Prior to detention, he was living in Orange County, California, working as a dishwasher, and seeking a U-Visa because he was the victim of a crime in the United States. Prior to being transferred to Adelanto in April 2018, Mr. Baca was detained at ICE’s Theo Lacy Facility (“Theo Lacy”). 59. Mr. Baca became blind in January 2015 after being shot. Since being in ICE custody, Mr. Baca has not been provided effective communication. He has to rely on his cell mates, attorneys, and, at times, guards to read any documents, including those related to his medical care and immigration case. When Mr. Baca needs to submit a written request, as required to meet with an ICE officer or access medical care, he has to rely on others to write it for him. 60. Plaintiff José Baca Hernández challenges Defendants’ failure to ensure constitutionally adequate medical and mental health care, failure to ensure proper administration of the use of segregation, and failure to ensure compliance with Section 504 at Detention Facilities. 26 27 28 COMPLAINT - 15 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 26 of 210 Page ID #:26 1 2 I. Plaintiff Edilberto García Guerrero 61. Plaintiff Edilberto García Guerrero is 47 years old. He was a long-time 3 resident of Utah prior to being detained by ICE in April 2018. His wife and teenage 4 daughter are both U.S. citizens and still reside in Utah. Mr. García Guerrero speaks 5 Spanish and has limited reading and writing skills. 6 62. Mr. García Guerrero is currently detained at Aurora. He has chronic 7 pain in his neck and shoulder on his left side. This chronic pain is the result of an 8 attack he suffered while in ICE custody during the spring of 2019. Mr. García 9 Guerrero also has low vision in his left eye and is hard of hearing in his left ear, 10 both of which has been left untreated since the attack. He has alerted the facility to 11 these issues and has still not received treatment. 12 63. Additionally, Mr. García Guerrero has extreme pain and swelling in 13 his right ankle. Several years prior to his detention, he fell off a roof, shattering his 14 leg and requiring reconstructive surgery, including the placement of screws in his 15 right ankle. More recently, Mr. García Guerrero suffered another injury to his right 16 ankle, which occurred after falling down while his ankles were shackled in ICE 17 custody. An outside specialist recommended surgical intervention. However, the 18 GEO group, which operates the facility under a contract with ICE, has long refused 19 to provide the surgery, choosing to treat it as “elective” until, on information and 20 belief, days before the filing of this Complaint. 21 22 23 24 64. Plaintiff Edilberto García Guerrero challenges Defendants’ failure to ensure constitutionally adequate medical and mental health at Detention Facilities. J. Plaintiff Martín Muñoz 65. Plaintiff Martín Muñoz has been detained at Adelanto Detention 25 Center for more than two years. He has insulin-dependent Type 2 diabetes, high 26 cholesterol, high blood pressure, depression, and anxiety. 27 28 66. Mr. Muñoz has been in the United States for more than 40 years. Prior to being detained, he was living in Riverside County, California, where he worked COMPLAINT - 16 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 27 of 210 Page ID #:27 1 as a handyman for more than 25 years. He has four grown children who are United 2 States citizens. 3 67. In September 2017, Mr. Muñoz had an insulin overdose when 4 Adelanto staff administered more than triple his regular dose. Because the 5 administration of too much insulin can lead to a hypoglycemic coma, Mr. Muñoz 6 was taken to medical observation when Adelanto staff realized the mistake, and 7 Adelanto staff wrote him a letter admitting fault. In the aftermath of this overdose, 8 Mr. Muñoz was never evaluated by a doctor. 9 68. Mr. Muñoz has also gone without insulin and high blood pressure 10 medication several times while in ICE detention. In February 2019, he went without 11 insulin for six days because his doctor had not timely refilled his prescription; in 12 Spring 2019, Adelanto ran out of high blood pressure medication and it took two 13 weeks for Mr. Muñoz to receive it again. In Summer 2019, he again did not receive 14 insulin for 10 days, following a medical encounter in which staff told him that 15 insulin was not in the system for him. At the end of July, he went a week without 16 Lipitor, his cholesterol medication, despite asking a nurse for it at pill pass three 17 times. 18 69. Plaintiff Martín Muñoz challenges Defendants’ failure to ensure 19 constitutionally adequate medical care and failure to ensure compliance with 20 Section 504 at Detention Facilities. 21 22 23 24 25 26 K. Plaintiff Luis Manuel Rodriguez Delgadillo 70. Plaintiff Luis Manuel Rodriguez Delgadillo is 29 years old and has been detained at Adelanto since March 2019. 71. Mr. Rodriguez Delgadillo is a nearly lifelong California resident; most of his family members are United States citizens, including his two small children. Prior to his detention, he resided in Palm Desert, California. 27 28 COMPLAINT - 17 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 28 of 210 Page ID #:28 1 72. Prior to his detention, Mr. Rodriguez Delgadillo had been diagnosed 2 with schizophrenia and bipolar disorder, for which he was taking medication, and 3 he is a qualified person with a disability as defined in the Rehabilitation Act. After 4 years of instability and acute psychotic episodes, with the support of his family and 5 in the care of a treating psychiatrist, Mr. Rodriguez Delgadillo had finally achieved 6 some measure of mental health stability before he was detained. However, since his 7 detention at Adelanto, his shifting medication regime, lack of therapy and failure of 8 mental health staff to mitigate stressors, have all caused his mental health to 9 noticeably decline. 10 73. Mr. Rodriguez Delgadillo has missed court on two occasions due to 11 placement in medical observation after expressing suicidal or other harmful 12 ideation. His detention has thus been prolonged by inadequate mental health 13 treatment. 14 74. Plaintiff Luis Manuel Rodriguez Delgadillo challenges Defendants’ 15 failure to ensure constitutionally adequate medical and mental health care and 16 failure to ensure compliance with Section 504 at Detention Facilities. 17 18 19 20 21 22 23 24 25 26 27 L. Plaintiff Ruben Darío Mencías Soto 75. Plaintiff Ruben Darío Mencías Soto came to the United States to seek refuge. Mr. Mencías Soto is 36 years old and has been detained at Adelanto since December 2018. 76. Mr. Mencías Soto is a qualified individual with a disability as defined in the Rehabilitation Act. Since December 2018, he has suffered from severe back and leg pain due to a nerve compression and a herniated disc in his back after falling in the shower at Adelanto. Due to his pain, he is unable to walk without assistance, and facility staff have given him a single physical therapy appointment. 77. Additionally, though Mr. Mencías Soto requires both a wheelchair and crutches to fully access the Adelanto facility, staff at various times have taken both 28 COMPLAINT - 18 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 29 of 210 Page ID #:29 1 of those mobility aids away from him. Mr. Mencías Soto remains without crutches, 2 and his mobility is severely limited. He had a wheelchair taken away from him for 3 over a month, such that he was regularly unable to go to the cafeteria to eat. It was 4 only returned upon the intervention of his attorney. 5 78. Plaintiff Ruben Darío Mencías Soto challenges Defendants’ failure to 6 ensure constitutionally adequate medical care and failure to ensure compliance with 7 Section 504 at Detention Facilities. 8 M.Plaintiff Alex Hernandez 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 79. Plaintiff Alex Hernandez is 48 years old and currently detained at Etowah County Detention Center (“Etowah”). He has a torn rotator cuff in his right shoulder, as well as persistent pain and inflammation in his back, right hip, legs, and both feet, which limit his mobility, range of motion, and ability to engage in activities of daily living. He is also diagnosed with Barrett’s esophagus, hypertension, and PTSD, and he has some vision loss. Mr. Hernandez is a qualified individual with a disability as defined in the Rehabilitation Act. 80. Mr. Hernandez has been in the United States for most of his life. He was previously a resident of Los Angeles, California. 81. Prior to his transfer to Etowah on December 20, 2018, ICE detained Mr. Hernandez at the Alexandria Staging Facility (“Alexandria”), Otay Mesa Detention Center (“Otay Mesa”), LaSalle, and Mesa Verde. Mr. Hernandez has been in ICE custody since October 2016. 82. Mr. Hernandez has seen three different orthopedic surgeons who have recommended surgery to repair his torn rotator cuff, but ICE has not provided the surgery. He experiences severe pain on a daily basis due to his torn rotator cuff. 83. Mr. Hernandez also has chronic and severe pain in both feet, his right hip, legs, and his lower back, which makes it painful for him to stay standing up for more than twenty minutes at a time. 28 COMPLAINT - 19 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 30 of 210 Page ID #:30 1 84. Mr. Hernandez has been placed in segregation and denied access to 2 recreation spaces, the law library, and a telephone to contact his family and 3 attorney. 4 85. Plaintiff Alex Hernandez challenges Defendants’ failure to ensure 5 constitutionally adequate medical and mental health care, failure to ensure proper 6 administration of segregation, and failure to ensure compliance with Section 504 at 7 Detention Facilities. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 N. Plaintiff Aristoteles Sanchez Martinez 86. Plaintiff Aristoteles Sanchez Martinez is 46 years old and currently detained at Stewart. He is diagnosed with diabetes, neuropathy, hypertension, bone spur on left foot, Charcot foot, avascular necrosis, non-palpable pulses in lower extremities, and venous insufficiency, and is a qualified individual with a disability as defined in the Rehabilitation Act. Mr. Sanchez Martinez also has a large right flank hernia on his abdomen that causes severe pain. 87. Since being in ICE custody, Mr. Sanchez Martinez’s health has worsened. He uses a wheelchair because he is unable to walk due to his right flank hernia, Charcot foot, avascular necrosis, and non-palpable pulse and venous insufficiency in his lower extremities. 88. Mr. Sanchez Martinez has been in ICE custody since September 11, 2018. Prior to arriving at Stewart on October 3, 2018, Mr. Sanchez Martinez was confined at the Folkston ICE Processing Center (“Folkston”). 89. Mr. Sanchez Martinez has been in the United States over half his life, and he formerly resided in Queens, New York. 90. Plaintiff Aristoteles Sanchez Martinez challenges Defendants’ failure to provide constitutionally adequate medical and mental health care and failure to ensure compliance with Section 504 in Detention Facilities. 27 28 COMPLAINT - 20 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 31 of 210 Page ID #:31 1 2 O. Plaintiff Sergio Salazar Artaga 91. Mr. Salazar Artaga is 25 years old and currently detained at Florence 3 Correctional Center (“Florence”). Mr. Salazar Artaga has been in the United States 4 since the age of one. Before entering ICE custody, he was living in Phoenix, 5 Arizona. 6 92. Mr. Salazar Artaga has cerebral palsy and is a qualified individual with 7 a disability as defined in the Rehabilitation Act. He has chronic pain in his back and 8 knees, for which he has not received appropriate, consistent pain medication for 9 pain management 10 93. Mr. Salazar Artaga uses a cane and is awaiting leg and knee braces for 11 stability as he walks around. Without these braces, he has fallen three times already 12 since coming to Florence. 13 94. In addition, Mr. Salazar Artaga was unable to see a mental health care 14 provider for an evaluation and anti-psychotic medications until after a month of 15 detention, after he had been put on suicide watch twice for self-harming behavior 16 and hallucinations. Florence has since diagnosed him with anxiety disorder 17 and atypical psychosis. 18 95. He has been detained by ICE at Florence since March 2019. 19 96. Plaintiff Sergio Salazar Artaga challenges Defendants’ failure to 20 ensure constitutionally adequate medical and mental health care and failure to 21 ensure compliance with Section 504 at Detention Facilities. 22 P. Plaintiff Inland Coalition for Immigrant Justice 23 97. Plaintiff Inland Coalition for Immigrant Justice (“ICIJ”) is a nonprofit, 24 nonpartisan organization established in 2008 in California. ICIJ has a nonprofit 25 fiscal sponsor also incorporated in California and is working towards nonprofit 26 incorporation. 27 28 98. ICIJ is an immigrant-led community-based coalition organization that promotes justice for immigrants in the Inland Empire region of California, COMPLAINT - 21 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 32 of 210 Page ID #:32 1 headquartered in Ontario, California. ICIJ’s mission is convening organizations to 2 collectively advocate and work to improve the lives of immigrant communities 3 while working toward a just solution to the immigration system. 4 99. ICIJ engages in capacity building, community forums, and community 5 engagement, carrying out such activities as public advocacy, providing community 6 resources, educating the immigrant community, and ensuring that immigrant voices 7 are part of substantial public discussions. As the result of substandard conditions, 8 ICIJ has been forced to devote a growing portion of its work is to support people 9 detained in ICE custody at Adelanto Detention Center, which is less than an hour 10 away from ICIJ’s main office, diverting its resources from other organizational 11 activities. 12 100. Defendants’ constitutionally inadequate policies regarding conditions 13 of confinement and failure to provide disability accommodations have frustrated 14 Plaintiff ICIJ’s mission, as well as ICIJ’s organizational interest in empowering 15 immigrants with disabilities. Defendants’ policies and practices have forced ICIJ to 16 divert significant resources away from its other programs and its assistance of other 17 migrants, refugees, asylum seekers, and Inland Empire immigrant communities. 18 101. Because of Defendants’ failure to provide and ensure constitutionally 19 adequate medical care and mental health care, and to ensure disability 20 accommodations and other measures required by Section 504 of the Rehabilitation 21 Act to detained individuals in immigration detention, ICIJ has been forced to 22 expend additional, significant resources on organizing work in support of 23 immigrants in ICE custody in Adelanto. Since November 2018, ICIJ has had a staff 24 member who works full-time to support people at Adelanto, including those who 25 are vulnerable in detention due to medical conditions, mental health disabilities, and 26 other disabilities. Along with several partner organizations, the staff member 27 organizes a network of volunteer visitors to detained people at Adelanto. She 28 provides training to the volunteers. She supports families of detained people who COMPLAINT - 22 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 33 of 210 Page ID #:33 1 have medical issues by helping gather medical records, drafting letters of support, 2 and communicating with ICE regarding the medical needs. She coordinates with 3 doctors for medical opinions and other support. Further, ICIJ is in the process of 4 hiring a coordinator to do medical referrals full-time. 5 102. A second ICIJ staff member works to secure legal representation to 6 defend from deportation Inland Empire residents and asylum seekers who are 7 detained at Adelanto. She also coordinates a rapid response network to try to 8 prevent more detentions at Adelanto. 9 103. A third ICIJ staff member splits his time between organizing on behalf 10 of detained individuals at Adelanto and coordinating deportation defense for people 11 at Adelanto. He particularly focuses on support for people who are getting released 12 from Adelanto, including housing and immediate medical attention. 13 104. ICIJ has developed a protocol to advocate on behalf of people at 14 Adelanto who are experiencing medical emergencies, a time-intensive process that 15 involves coordinating with family members and previous medical providers; 16 referring individuals to a collaborating social worker when the emergency has a 17 mental health component; and intensely advocating with ICE at Adelanto to try to 18 ensure that the emergency is addressed. By way of example, ICIJ activated the 19 protocol on behalf of a man who was receiving experimental treatment for a serious 20 medical condition, whose immune system had been weakened by the treatment, and 21 who was at risk of missing necessary doses of the treatment because Adelanto 22 would not accept any information about it. 23 105. Most recently, in June 2019, ICIJ spent significant resources to open 24 an office in Adelanto. This office will serve as the headquarters for the staffer who 25 organizes at Adelanto, as well as a location for visitation volunteers and family 26 members visiting loved ones detained at Adelanto to rest, prepare for their visits, 27 and share information with ICIJ staff. 28 COMPLAINT - 23 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 34 of 210 Page ID #:34 1 106. If ICIJ were not forced to divert so many resources to addressing 2 Defendants’ unlawful practices at Adelanto, the organization would have more 3 capacity to conduct advocacy on behalf of immigrants in San Bernardino County 4 and throughout the state of California; to provide more legal services for affirming 5 the rights of immigrants, not defending them from deportation; and working to 6 promote the rights of and justice for immigrant communities in Southern California. 7 107. ICIJ has also dedicated staff time and fundraising efforts to paying 8 bonds for people detained at Adelanto. ICIJ prioritizes paying bonds for immigrants 9 whose mental or physical health has deteriorated while being detained. For 10 example, the largest bond they have raised money for was $21,000 for a young man 11 whose mental health deteriorated over the course of his prolonged detention and for 12 his brother. 13 108. Moreover, ICIJ diverts significant resources to situating its work at 14 Adelanto and throughout the Inland Empire in the national landscape of 15 immigration trends, including federal detention policies and practices and 16 organizing efforts around them. For example, ICIJ is a paying member of a national 17 network that coordinates support for detained immigrants. ICIJ also tracks 18 information and provides it to national organizations who are looking for on-the- 19 ground, up-to-date information about Adelanto. ICIJ spends resources to send staff 20 members to conferences throughout the country and spends staff time preparing 21 presentations and information to be shared. 22 109. Plaintiff Inland Coalition for Immigrant Justice challenges Defendants’ 23 failure to ensure constitutionally adequate medical and mental health care, failure to 24 ensure proper administration of segregation, and failure to ensure compliance with 25 Section 504 at Detention Facilities. 26 27 28 COMPLAINT - 24 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 35 of 210 Page ID #:35 1 2 3 4 Q. Plaintiff Al Otro Lado 110. Plaintiff Al Otro Lado is a nonprofit, nonpartisan organization established in 2014 and incorporated in California. 111. Al Otro Lado is a legal services organization that serves indigent 5 migrants, refugees, deportees, and their families, and operates primarily in Los 6 Angeles, California; San Diego, California; and Tijuana, Mexico; although it 7 provides referrals and assistance to indigent migrants and refugees across the 8 United States. Al Otro Lado’s mission is to coordinate and provide screening, 9 advocacy, and legal representation for individuals in immigration proceedings; to 10 seek redress for civil rights violations, including disability rights violations; and to 11 provide assistance with other legal and social service needs. 12 112. Defendants’ constitutionally inadequate policies regarding conditions 13 of confinement and failure to provide disability accommodations have frustrated 14 Plaintiff Al Otro Lado’s mission, as well as Al Otro Lado’s organizational interest 15 in supporting and empowering migrants, refugees, and deportees with disabilities. 16 Defendants’ policies and practices have forced Al Otro Lado to divert significant 17 resources away from its other programs and its assistance of other migrants, 18 refugees, asylum-seekers, and deportees, and have made it much harder and more 19 resource-intensive for Al Otro Lado to represent many of its existing detained 20 clients in their immigration proceedings. 21 113. Because of Defendants’ failure to provide and ensure constitutionally 22 adequate physical medical care and disability accommodations to detained 23 individuals in immigration detention, Al Otro Lado has been forced to expend 24 additional, significant resources when assisting detained clients with 25 unaccommodated, untreated, and poorly treated medical conditions that it is not 26 required to expend for its other clients. In such situations, Al Otro Lado must 27 conduct additional and often lengthy in-detention visits, advocacy, investigation, 28 medical record requests, and medical expert review to advocate for its clients’ right COMPLAINT - 25 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 36 of 210 Page ID #:36 1 to medical treatment and accommodations, while also representing its clients in 2 immigration proceedings. If Al Otro Lado’s clients were provided with appropriate 3 medical care and accommodations, it would be able to take on additional cases with 4 the extra time and resources it currently spends on its detained clients with 5 unaccommodated disabilities and poorly treated medical problems. 6 114. Al Otro Lado has and has had many detained clients with medical 7 conditions requiring additional advocacy, most of whom are or were detained at 8 Otay Mesa and Adelanto. Al Otro Lado’s management estimates that staff must 9 spend at least one-third more staff resources to represent its clients with untreated 10 or unaccommodated medical conditions in immigration proceedings as a result of 11 Defendants’ policies. 12 115. For example, an Al Otro Lado staff attorney spent several days 13 investigating and advocating for a client with HIV to get the medicine they needed 14 to be safe in immigration detention, such that the client would be healthy and stable 15 enough to proceed on their immigration case for which Al Otro Lado was originally 16 retained. 17 116. As another example, Al Otro Lado has had two clients lose 18 pregnancies in custody due to a detention facility’s failure to provide timely 19 medical intervention. Consequently, Al Otro Lado staff have had to expend 20 significant additional time to prepare pregnant asylum seekers to enter custody, 21 including counseling asylum seekers regarding the potential risk of miscarriage and 22 coordinating with medical providers to obtain documentation of pregnancy. 23 117. Further, because of Defendants’ failure to provide constitutionally 24 adequate conditions and mental health care, Al Otro Lado has been forced to 25 expend additional resources to represent its detained clients with serious mental 26 health conditions in their immigration proceedings. When Defendants do not 27 properly treat Al Otro Lado’s clients’ mental health conditions, or improperly place 28 such clients in segregation and thus worsen their mental health conditions, it is COMPLAINT - 26 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 37 of 210 Page ID #:37 1 more challenging for Al Otro Lado to visit and communicate with, and thus 2 advocate for and defend, its clients. Al Otro Lado staff have to spend additional 3 time and resources to develop the cases of its clients with poorly treated mental 4 health conditions that, if those conditions were properly treated, could instead be 5 spent on representing a larger number of clients and on pursuing other programs. 6 118. Almost all of Al Otro Lado’s detained clients have mental health 7 conditions, many of which require additional advocacy. Staff must regularly go to 8 meet with clients with serious mental health conditions more times than they would 9 otherwise need to for other clients they are representing in immigration 10 proceedings, solely due to Defendants’ failure to provide constitutionally adequate 11 mental health care. 12 119. For example, Al Otro Lado’s detained clients with schizophrenia and 13 other serious mental health conditions are often unnecessarily taken off medications 14 that previously provided those clients with mental health stability out of detention. 15 When that happens, Al Otro Lado attorneys are often unable to communicate with 16 these clients, and thus must either visit their clients more often in the hope of 17 visiting with them on a day when communication with the client is possible; visit 18 them in an off-site hospital setting where it is impossible to see the client in a 19 private setting, and where staff may be required to spend a great deal of time to 20 even seek permission to visit their clients; or take other additional efforts to 21 investigate their clients’ cases to be able to adequately and ethically present those 22 cases in immigration court. 23 120. In addition, in response to Defendants’ failure to provide 24 constitutionally adequate conditions and disability accommodations, Al Otro Lado 25 often diverts staff time and other resources to represent detained individuals in need 26 of an urgent change in circumstances—including provision of essential medical 27 care, accommodations, or other constitutionally adequate conditions of 28 confinement—solely on bond or parole. COMPLAINT - 27 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 38 of 210 Page ID #:38 1 121. As one of many examples, upon learning that a detained client who 2 was HIV-positive was in a dire medical condition that was largely going untreated, 3 an Al Otro Lado attorney expedited his medical parole application due to the 4 severity of his condition. The attorney was unable to complete a variety of other 5 work for other clients during that emergency period, and instead spent additional 6 time coordinating with doctors, finding the client adequate shelter that could 7 support the client’s condition, and pursuing parole, among other things. 8 122. Several of Defendants’ failures to provide constitutionally adequate 9 conditions and accommodations overlap for the same Al Otro Lado clients. For 10 example, a number of Al Otro Lado’s detained clients are both trans and HIV- 11 positive. Staff often are required to expend extra resources to advocate for adequate 12 medical and mental health treatment for these clients, ranging from advocating in 13 the face of the provision of inappropriate retro-viral medication or no medication, 14 inappropriate mental health treatment, placement in housing units with people with 15 infectious diseases that uniquely threaten people with HIV, and prolonged isolation 16 and solitary confinement nominally because of potential exposure to infection 17 diseases like mumps and the chicken pox, among other issues. 18 123. Because of Defendants’ known failure to provide adequate medical 19 and mental health care and appropriate health screenings, Al Otro Lado has also 20 had to divert resources in Tijuana, Mexico, to coordinate and in some instances pay 21 for medical examinations and treatment for asylum-seekers and migrants who may 22 be detained upon their entry into the United States, as well as to otherwise 23 coordinate documentation of their medication condition so that they may advocate 24 for their need for medical treatment upon entering custody. If asylum-seekers and 25 migrants were able to receive appropriate health screenings upon entry into 26 Defendants’ custody, and to receive appropriate treatment upon entry into their 27 custody, Al Otro Lado could instead coordinate its resources to support asylum- 28 seekers and migrants in other ways aligned with its mission. COMPLAINT - 28 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 39 of 210 Page ID #:39 1 124. In addition, in part as a result of Defendants’ failure to provide 2 adequate medical care and appropriate health screenings, the detention facilities in 3 which Al Otro Lado visits clients have had numerous outbreaks of mumps and 4 chicken pox to which large populations of people in detention may have been 5 exposed. These outbreaks result in lengthy quarantines affecting many more of Al 6 Otro Lado’s clients than would otherwise be affected if Defendants had quickly 7 identified and adequately addressed such infectious diseases. When clients are 8 quarantined due to such failures, Al Otro Lado staff are unable to visit with clients 9 about their immigration cases, and thus must put additional time into attempting 10 more client visits, rescheduling visits, and rescheduling court dates. 125. Al Otro Lado also operates a pro bono referral service for migrants and 11 12 asylum-seekers in detention across the country. Because of Defendants’ failure to 13 provide constitutionally adequate care and disability accommodations to people in 14 its custody, Al Otro Lado has had to divert its very limited resources for providing 15 referrals and seeking representation toward referrals for detained individuals at 16 imminent risk of physical harm because of these policies, and thus away from other 17 programs and services in line with its mission. 18 19 20 21 126. Plaintiff Al Otro Lado challenges Defendants’ failure to ensure constitutionally adequate medical and mental health care, failure to ensure proper administration of segregation, and failure to ensure compliance with Section 504 at Detention Facilities. 22 23 24 25 II. Defendants A. Defendant U.S. Immigration Customs and Enforcement 127. Defendant U.S. Immigration and Customs Enforcement is a 26 component of DHS. As the principal investigative arm of DHS, ICE is charged with 27 enforcement of immigration laws. ICE’s primary duties include the investigation of 28 persons suspected to have violated immigration laws, and the apprehension, COMPLAINT - 29 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 40 of 210 Page ID #:40 1 detention, and removal of noncitizens who are unlawfully present in the United 2 States. 3 4 5 6 B. Defendant U.S. Department of Homeland Security 128. Defendant U.S. Department of Homeland Security is a federal executive agency responsible for, among other things, enforcing federal immigration laws and overseeing lawful immigration to the United States. 7 8 9 10 11 12 13 14 15 C. Defendant Kevin Mcaleenan, Acting Secretary of DHS 129. Defendant Kevin McAleenan is the Acting Secretary of DHS, charged with enforcing and administering federal immigration laws. He oversees each of the agencies within DHS, including ICE. He has ultimate authority over all policies, procedures, and practices as applied to ICE Detention Facilities. Defendant McAleenan is sued in his official capacity. D. Defendant Matthew T. Albence, Acting Director of ICE 130. Defendant Matthew T. Albence is the Acting Director of ICE, charged 16 with enforcing federal immigration laws by detaining and removing noncitizens. He 17 is charged with oversight and monitoring of all policies, procedures, and practices 18 as applied to ICE Detention Facilities. Defendant Albence is sued in his official 19 capacity. 20 21 E. Defendant Derek N. Brenner, Deputy Director of ICE 131. Defendant Derek N. Benner is the Deputy Director of ICE. In this 22 capacity, Benner executes oversight of ICE’s day-to-day operations and oversees a 23 workforce of more than 20,000 employees assigned to more than 400 domestic and 24 international offices. Defendant Benner is sued in his official capacity. 25 26 F. Defendant Timothy S. Robbins, Acting Executive Associate Director of ERO 27 132. Defendant Timothy S. Robbins is the Acting Executive Associate 28 Director of Enforcement and Removal Operations (“ERO”). ERO enforces the COMPLAINT - 30 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 41 of 210 Page ID #:41 1 nation’s immigration laws, identifies and apprehends removable noncitizens, and 2 detains and removes these individuals from the United States when necessary. In 3 this capacity, Robbins manages 24 field offices nationwide. Defendant Robbins is 4 sued in his official capacity. 5 6 7 G. Defendant Tae Johnson, Assistant Director of Custody Management of ERO 133. Defendant Tae Johnson is the Assistant Director of Custody 8 Management, ERO. Johnson is responsible for policy and oversight of the 9 administrative custody of detained immigrants. In this capacity, Johnson oversees 10 and monitors detention operations, including those at local and state facilities 11 operating under an Intergovernmental Service Agreement (“IGSA”), contract 12 Detention Facilities, ICE-owned facilities, and facilities operated by the Bureau of 13 Prisons (“BOP”). Defendant Johnson is sued in his official capacity. 14 15 16 H. Defendant Dr. Stewart D. Smith, Assistant Director of ICE Health Service Corps 134. Defendant Dr. Stewart D. Smith is the Assistant Director for ICE 17 Health Service Corps, which provides medical, dental, and mental healthcare 18 services at 21 facilities nationwide and manages off-site medical care for detained 19 individuals housed in 240 additional IGSA facilities. Smith oversees, monitors, and 20 is charged with ensuring adequate healthcare for all ICE detainees nationwide. 21 Defendant Smith is sued in his official capacity. 22 23 I. Defendant Jacki Becker Klopp, Assistant Director of Operations Support of ERO 24 135. Defendant Jacki Becker Klopp is the Assistant Director of Operations 25 Support, ERO. In this capacity, Klopp is responsible for formulation and execution 26 of the overall budget of ICE detention, financial management, facilities 27 management, and hiring and human resources management. Klopp also provides 28 COMPLAINT - 31 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 42 of 210 Page ID #:42 1 planning and oversight of ERO facilities and construction. Defendant Klopp is sued 2 in her official capacity. 3 4 J. Defendant David P. Pekoske, Senior Official Performing Duties of the Deputy Secretary of DHS 5 136. Defendant David P. Pekoske is the Senior Official Performing the 6 Duties of the Deputy Secretary of DHS. Upon information and belief, until the 7 Deputy Secretary position is filled, Defendant Pekoske is the senior official charged 8 with overseeing the day-to-day operations of DHS. Defendant Pekoske is sued in 9 his official capacity. JURISDICTION 10 11 137. Jurisdiction is proper pursuant to 28 U.S.C. §§ 1331 and 1343. This 12 action seeks declaratory and injunctive relief under 28 U.S.C. §§ 1343, 2201, and 13 2202, and 29 U.S.C. § 794a. 14 VENUE 15 138. Venue is properly in this district pursuant to 28 U.S.C. § 1391(e)(1), 16 17 because at least one plaintiff resides in this district 18 FACTUAL ALLEGATIONS 19 20 21 22 23 24 III. Defendants Subject Thousands of Civil Detainees to Punitive Conditions Despite the Availability of Alternatives. 139. Many detained individuals are recently arrived asylum seekers. These individuals have often fled traumatic violence, persecution, and severe deprivation in their home countries only to experience violence and further trauma on their journeys to this country. For example, according to some reports, approximately 25 26 27 28 COMPLAINT - 32 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 43 of 210 Page ID #:43 1 one-third of asylum-seeking women experience sexual or gender-based violence on 2 their journey to the U.S.14 140. Other detained individuals are individuals apprehended in the United 3 4 States, who often have deep roots and family in this country and are dealing with 5 the trauma of forced separation from their children and spouses and the prospect of 6 that separation becoming permanent. For example, in 2017, Defendants deported 7 approximately 27,080 individuals who had U.S. citizen children.15 Based on data 8 from 2016, nearly a third of unauthorized individuals live with a U.S. citizen child, 9 and about 12% are married to a U.S. citizen.16 141. The majority of those detained by ICE have no experience with the 10 11 prison system in this country or their country of origin. Most of the individuals in 12 ICE custody have not been convicted of any crime. As of June 30, 2018, 58% of the 13 individuals in ICE custody had no criminal convictions.17 An even larger 14 15 14 16 17 18 19 20 21 22 23 24 25 26 27 28 Forced to Flee Central America’s Northern Triangle: A Neglected Humanitarian Crisis, Doctors Without Borders, at 5 (May 2017), https://www.doctorswithoutborders.org/sites/default/files/2018-06/msf_forced-toflee-central-americas-northern-triangle.pdf. 15 See U.S. Immigration & Customs Enf’t, Dep’t of Homeland Sec., Deportation of Aliens Claiming U.S.-Born Children, at 6 (Oct. 12, 2017), https://www.dhs.gov/sites/default/files/publications/ICE%20%20Deportation%20of%20Aliens%20Claiming%20U.S.%20Born%20Children%20-%20First%20Half%2C%20CY%202017.pdf; U.S. Immigration & Customs Enf’t, Dep’t of Homeland Sec., Deportation of Aliens Claiming U.S.-Born Children, at 6 (June 26, 2018), https://www.dhs.gov/sites/default/files/publications/ICE%20%20Deportation%20of%20Aliens%20Claiming%20U.S.%20Born%20Children%20-%20Second%20Half%2C%20CY%202017.pdf. 16 Profile of the Unauthorized Population: United States, Migration Policy Institute https://www.migrationpolicy.org/data/unauthorized-immigrantpopulation/state/US#yearsresidence. 17 Profiling Who ICE Detains—Few Committed Any Crime, TRAC Immigration (Oct. 9, 2018), https://trac.syr.edu/immigration/reports/530/. COMPLAINT - 33 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 44 of 210 Page ID #:44 1 proportion—four out of five—either had no record or had only committed a minor 2 offense such as a traffic violation.18 3 142. Most individuals in ICE custody also do not speak English and 4 therefore require interpreters, translators, or related technology to ensure that they 5 can communicate with facility staff—including medical providers—and their 6 immigration attorneys. Yet, ICE’s systemic failure to ensure that Detention 7 Facilities consistently provide adequate interpretation services means that detained 8 individuals are routinely unable to communicate with facility staff and their 9 attorneys.19 143. It is estimated that between October 2010 and February 2013, the U.S. 10 11 detained approximately 6,000 survivors of torture that were seeking asylum.20 12 Based on the increased number of individuals who are currently being detained, it is 13 likely that the number of survivors of torture who are detained has substantially 14 increased since then. 144. Between 2013 and 2018, the United States deported at least 92 15 16 veterans of the U.S. armed services.21 From the data available, the U.S. 17 Government Accountability Office (“GAO”) also identified 250 noncitizen veterans 18 who were put in removal proceedings during this same time period.22 19 20 18 21 19 22 23 24 25 26 27 28 Id. See, e.g., Xavier Becerra, Cal. Att’y Gen., Immigration Detention in California, Cal. Dep’t of Justice, at 61, 82, 123 (Feb. 2019), https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/immigration-detention2019.pdf. 20 Tortured & Detained: Survivor Stories of U.S. Immigration Detention, The Center for Victims of Torture et al., at 5 (Nov. 2013), https://www.uusc.org/sites/default/files/report_torturedanddetained_nov2013.pdf. 21 U.S. Gov’t Accountability Office, GAO-19-416, Actions Needed to Better Handle, Identify, and Track Cases Involving Veterans, at 16 (June 2019) https://www.gao.gov/assets/700/699549.pdf. 22 Id. COMPLAINT - 34 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 45 of 210 Page ID #:45 145. Immigration proceedings are civil matters, and immigration detention 1 2 is likewise civil and therefore should be “nonpunitive” in nature.23 Accordingly, 3 because neither Plaintiffs nor putative Class members are detained pursuant to 4 criminal charges or convictions, the conditions in which they are held must reflect 5 that distinct custody status and must not be similar to, or worse than, the conditions 6 of confinement in jails and prisons. 146. In practice, however, individuals in immigration detention are held in 7 8 punitive conditions that are similar to, and sometimes worse than, conditions of 9 confinement in prisons and jails. 147. When the core standards governing detention in federal facilities were 10 11 promulgated in January 2000, the U.S. Department of Justice allowed the core 12 standards for immigration detention facilities to be the same as those governing the 13 U.S. Bureau of Prisons. 24 Likewise, ICE’s current national standards governing 14 immigration prisons were promulgated in cooperation with the American 15 Correctional Association (“ACA”). 25 148. Consistent with ICE’s history of relying upon a prison model for 16 17 operating its facilities, most Detention Facilities are built and operated like 18 correctional institutions—and many of them are, in fact, currently operative penal 19 institutions.26 They are ringed by chain link fences topped with barbed wire, and 20 visitation is substantially restricted. Correctional officers strictly control movement 21 23 22 23 24 25 26 27 28 See Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Office of the Federal Detention Trustee, Detention Standards & Compliance Division: History of the Federal Performance-Based Detention Standards, https://www.justice.gov/archive/ofdt/qap-brochure.pdf. 25 Facility Inspections, ICE, https://www.ice.gov/facility-inspections. 26 See, e.g., Sarah N. Lynch et al., Exclusive: U.S. Sending 1,600 Immigration Detainees to Federal Prisons, Reuters (June 7, 2018), https://www.reuters.com/article/us-usa-immigration-prisons-exclusive/exclusive-us-immigration-authorities-sending-1600-detainees-to-federal-prisonsidUSKCN1J32W1; Tallahatchie County Correctional Facility, CoreCivic, http://www.corecivic.com/facilities/tallahatchie-county-correctional-facility. - 35 CASE NO. ______________ COMPLAINT 24 Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 46 of 210 Page ID #:46 1 within the facilities and conduct “counts” up to ten times a day, during which all 2 movement is prohibited. Detained individuals, who are denied access to their 3 personal clothing and most possessions, are dressed in prison garb and often held in 4 large cells with up to 100 others for most of the day. Generally, they are allowed 5 only a few hours of access to fresh air and sunlight each week; detained individuals 6 in some facilities are entirely denied access to the outdoors, and pass months or 7 years without ever feeling the sun on their faces. 149. When detained individuals are transported outside of the facilities, 8 9 corrections officers fully shackle their ankles and wrists. While some detained 10 individuals are offered the “opportunity” to work, they earn only about a dollar a 11 day, and reprisals for refusal to work are also common.27 Corrections officers use 12 solitary confinement as punishment for disciplinary infractions both real and 13 pretextual, often without processes to determine which is which. 14 150. Facility conditions make communication between detained individuals 15 and the outside world incredibly difficult—and often effectively impossible. When 16 visited by family and friends during limited visitation hours, detained individuals 17 are often denied contact visitation and must communicate with their loved ones 18 through thick plexiglass. 151. Detention Facilities also routinely obstruct detained individuals from 19 20 meaningfully communicating with their attorneys.28 Contact visitation between 21 27 22 23 24 25 26 27 28 See generally e.g., Menocal v. GEO Grp., Inc., 882 F.3d 905 (10th Cir. 2018); Chao Chen v. Geo Grp., Inc., 287 F. Supp. 3d 1158 (W.D. Wash. 2017); Novoa v. GEO Grp., Inc., No. EDCV 17-2514 JGB (SHKx), 2018 WL 4057814 (C.D. Cal. Aug. 22, 2018); Barrientos v. CoreCivic, Inc., 332 F. Supp. 3d 1305 (M.D. Ga. 2018); Gonzalez v. CoreCivic, Inc., No. 17-CV-2573 JLS (NLS), 2018 WL 1172579 (S.D. Cal. Mar. 6, 2018); Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS), 2018 WL 2193644 (S.D. Cal. May 14, 2018). 28 See, e.g., Becerra, supra note 19, at 125–27; U.S. Comm’n on Civil Rights, With Liberty and Justice for All, at 112 (Sep. 2015), https://www.usccr.gov/pubs/docs/Statutory_Enforcement_Report2015.pdf. COMPLAINT - 36 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 47 of 210 Page ID #:47 1 attorneys and clients is commonly denied, and access to confidential legal phones 2 and interpretation services is lacking on a systemic scale. Non-confidential phone 3 access is provided by private prison phone companies that charge exorbitant rates.29 4 Facility staff screen detained individuals’ mail30 and deny them access to almost all 5 their possessions.31 Communication is made nearly impossible when Defendants 6 fail to provide appropriate accommodations to individuals with disabilities who rely 7 on assistive devices and other aids for effective communication. 152. Multiple reports have concluded that immigration detainees are subject 8 9 to prison-like conditions of confinement. For example, the U.S. Commission on 10 Civil Rights issued a report in September 2015 concluding that: (1) “it was apparent 11 that immigration detention centers were built, house detainees, and operate like 12 criminal penitentiaries;”32 and (2) “the Commission finds evidence indicating that 13 DHS and its component agencies and contractees detain undocumented immigrants 14 in a manner inconsistent with civil detention and instead detain many 15 undocumented immigrants like their criminal counterparts in violation of a detained 16 immigrant’s Fifth Amendment Rights.”33 153. Similarly, in February 2019, the California Department of Justice 17 18 published the findings of its review of all ten Detention Facilities in California.34 19 Overall, the review found that detained individuals often face highly restrictive and 20 21 22 23 24 25 26 27 28 29 Leticia Miranda, Dialing with Dollars: How County Jails Profit From Immigrant Detainees, The Nation (May 15, 2014), https://www.thenation.com/article/dialingdollars-how-county-jails-profit-immigrant-detainees/. 30 See ICE, 2011 Performance-Based National Detention Standards (revised 2016), at § 5.1. 31 See ICE, 2011 Performance-Based National Detention Standards (revised 2016), at § 2.5. 32 U.S. Comm’n on Civil Rights, With Liberty and Justice for All, at 95–96 (Sep. 2015), https://www.usccr.gov/pubs/docs/Statutory_Enforcement_Report2015.pdf. 33 Id. at 106. 34 Becerra, supra note 19, at ii. COMPLAINT - 37 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 48 of 210 Page ID #:48 1 prison-like settings, including wearing prison-style clothing, spending up to 22 2 hours a day in their cells, facing restrictions on communicating with counsel, 3 receiving inadequate medical and mental health care, and performing work for 4 which they are often unpaid or compensated at $1.00 a day.35 154. In a March 2019 report, Disability Rights California (“DRC”) found 5 6 that Adelanto holds detained individuals in punitive, prison-like conditions that 7 harm people with disabilities, that “are obvious from the moment one enters the 8 detention center complex,” and that “amount to the unnecessary and possibly 9 unlawful punishment of civil detainees.”36 The facility, part of which was originally 10 constructed to be a prison and which operated as one for many years, is: 11 infused with unnecessarily harsh—and in effect, punitive—conditions, 12 raising questions as to whether ICE and GEO Group are violating the 13 constitutional rights of the people held there as civil detainees. Adelanto 14 looks, feels and operates like a prison, from the extreme idleness and 15 regimented daily schedule to the use of solitary confinement-type 16 housing . . . . The facility’s prison-like conditions disproportionately harm 17 people with mental illness and other disabilities.37 18 155. Denial of medical care, mental health care, and disability 19 accommodations contributes to and exacerbates the punitive conditions in 20 Defendants’ Detention Facilities. Indeed, as detailed herein, Plaintiffs and the Class 21 are routinely denied access to crucial medical and mental health care, refused 22 necessary accommodations for their disabilities, and subjected to near-constant 23 isolation. Viewed in their totality, these brutal conditions and punitive practices 24 25 35 Id. at iii–iv, 78, 122–27. Disability Rights Cal., There Is No Safety Here, at 17 (Mar. 2019), https://www.disabilityrightsca.org/system/files/fileattachments/DRC_REPORT_ADELANTOIMMIG_DETENTION_MARCH2019.pdf. 37 Id. at 2 (emphasis in original). - 38 CASE NO. ______________ COMPLAINT 36 26 27 28 Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 49 of 210 Page ID #:49 1 evince that conditions in the Detention Facilities are indistinguishable from—and 2 often worse than—jails and prisons. 156. Notwithstanding ICE’s regulatory and statutory authority to release 3 4 detained individuals, Defendants’ knowledge of the inadequate and inhumane 5 conditions in Detention Facilities, and the availability of multiple cost-effective 6 alternatives to detention, Defendants choose to detain thousands of individuals 7 every year—knowing that they are unable to provide the minimum level of care and 8 accommodations required by the Constitution and federal law. For example, 9 8 C.F.R. § 212.5 gives ICE the authority to parole asylum seekers who have 10 presented themselves at a port of entry into the U.S. during the pendency of their 11 asylum hearings. In fact, 8 C.F.R. § 212.5(b)(1) specifically authorizes release for 12 those with serious medical conditions. Another regulatory subdivision likewise 13 authorizes the release of pregnant women. 8 C.F.R. § 212.5(b)(2). ICE policy 14 directives also authorize parole for those asylum seekers who have passed the 15 “Credible Fear Interview,” a mechanism by which DHS filters out non-meritorious 16 asylum claims.38 Despite authorization to use its parole power, ICE now does so 17 only in a “negligible” number of cases.39 To provide but one example, although 18 approximately 90 percent of asylum seekers processed in New Orleans were 19 previously granted parole, parole was granted in just two of 130 cases in 2018.40 20 21 22 23 24 25 26 27 28 38 U.S. Immigration & Customs Enf’t, Directive No. 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture, at ¶ 6.2 (Jan. 4, 2010), https://www.ice.gov/doclib/dro/pdf/11002.1-hdparole_of_arriving_aliens_found_credible_fear.pdf. 39 Damus v. Nielsen, 313 F. Supp. 3d 317, 330 (D.D.C. 2018). 40 Southern Poverty Law Center, SPLC Lawsuit: ICE Illegally Denying Parole to Asylum Seekers in Southeast (May 30, 2019), https://www.splcenter.org/news/2019/05/30/splc-lawsuit-ice-illegally-denyingparole-asylum-seekers-southeast. COMPLAINT - 39 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 50 of 210 Page ID #:50 157. For many other detained individuals who have not presented 1 2 themselves at a port of entry, 8 C.F.R. § 1236.1(d)(1) authorizes ICE to set a bond 3 for those it apprehends. However, upon information and belief, ICE rarely sets bond 4 for detained individuals and has been instructed, as of February 20, 2017, to not use 5 its discretion to deprioritize any classes of people—even people who are pregnant, 6 elderly, or disabled—from detention.41 158. ICE contends that detention is necessary to ensure appearance for 7 8 court hearings, but a 2014 GAO report found that 99 percent of individuals in an 9 intensive monitoring appearance program appeared in court.42 Another study found 10 that community-based alternatives to detention program achieved a compliance rate 11 of 90 percent or better.43 Instead of using those programs, or using its prosecutorial 12 13 41 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Compare Memorandum from Jeh Charles Johnson, Sec’y of Homeland Sec., to Thomas S. Winkowski, Acting Dir., U.S. Immigration & Customs Enf’t, et al. (Nov. 20, 2014), https://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_ discretion.pdf (DHS directing that, as a general matter, ICE should not detain individuals “who are known to be suffering from serious physical or mental illness, who are disabled, elderly, pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest”) with Memorandum from John Kelly, Sec’y of Homeland Sec., to Thomas D. Homan, Acting Dir., U.S. Immigration & Customs Enf’t, et al. (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-ofthe-Immigration-Laws-to-Serve-the-National-Interest.pdf (explicitly rescinding November 20, 2014 Memorandum and providing that “[e]xcept as specifically provided in this memorandum, prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws”). 42 U.S. Gov’t Accountability Office, GAO-15-26, Alternatives to Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness, at 2 (Nov. 2014), https://www.gao.gov/assets/670/666911.pdf. 43 National Immigrant Justice Center, A Better Way: Community-Based Programming as an Alternative To Immigrant Incarceration, at 4 (Apr. 2019), COMPLAINT - 40 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 51 of 210 Page ID #:51 1 discretion to decline to initiate removal proceedings against vulnerable populations 2 as it had before February 2017, ICE insists on detaining people with serious 3 illnesses and disabilities despite its inability to provide them adequate care and 4 accommodation. 5 IV. 6 Defendants are Responsible for Selecting, Contracting, and Monitoring Conditions in Detention Facilities. 7 159. Defendants utilize a centralized process to identify and enter into 8 contracts with private and public entities to detain individuals in their custody; to 9 administer those contracts; and to determine what, if any, actions will be taken 10 11 against contractors who provide substandard care. 160. These contracts are administered and managed by ICE’s Office of 12 Acquisitions Management via a process that ICE has centralized “in order to 13 aggressively enforce contract compliance and initiate new procurements.”44 ICE’s 14 Office of Acquisitions Management contracting officers have signature authority to 15 execute and modify contracts, and they appoint Contract Officers’ Representatives 16 (“CORs”).45 When facilities are found noncompliant, CORs may submit a Contract 17 Discrepancy Report that documents the issue and recommends financial penalties. 18 161. In procuring space in facilities for its detainees, ICE does not use any 19 20 21 22 23 24 25 26 27 28 of the three lawful procurement means available to federal agencies.46 Instead, it https://www.immigrantjustice.org/sites/default/files/uploaded-files/no-contenttype/2019-04/A-Better-Way-report-April2019-FINAL-full.pdf. 44 Detention Reform, U.S. Immigration &Customs Enf’t, https://www.ice.gov/detention-reform#tab1 (last updated Jul. 24, 2018). 45 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-19-18: ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, at 5 (Jan. 29, 2019), https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf. 46 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-55:Immigration and Customs Enforcement Did Not Follow Federal Procurement Guidelines When Contracting for Detention Services, at 19 (Feb. 21, 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-02/OIG-18-53-Feb18.pdf. COMPLAINT - 41 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 52 of 210 Page ID #:52 1 most commonly uses Intergovernmental Service Agreements (“IGSAs”) with local 2 entities who then contract with private prison companies to operate the facilities.47 3 In 2018, the DHS Office of the Inspector General (“OIG”) found that “ICE has no 4 assurance that it executed detention center contracts in the best interest of the 5 Federal Government, taxpayers, or detainees.”48 In particular, this 2018 OIG Report 6 found that ICE had intentionally circumvented the federal procurement process to 7 render the private prison company’s performance “effectively insulated from 8 government scrutiny.”49 9 162. In 2019, OIG found that Defendants fail to thoroughly vet programs 10 and services at Detention Facilities, use lax procurement requirements, and enter 11 into vague and toothless contracts, as described below.50 Thus, Defendants’ failure 12 to properly monitor Detention Facilities begins with the very contracts intended to 13 govern the conditions in which non-citizens are detained. 163. In the fall of 2016, Assistant Attorney General Sally Yates directed the 14 15 U.S. Department of Justice to begin to phase out the use of private prisons for 16 federal prisoners, based in part on a recognition that conditions in privately run 17 facilities were substandard.51 164. Shortly thereafter, then-Secretary of DHS Jeh Johnson established a 18 19 Subcommittee at DHS to consider whether DHS should follow suit. While 20 acknowledging that the use of private providers and local jails was likely to 21 22 47 23 48 24 25 26 27 28 Id.; see also 2 C.F.R. § 200; 48 C.F.R. § 1. Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-55, supra note 46, at 3. 49 Id. at 6. 50 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-19-18, supra note 4546, at 15. 51 Memorandum from Sally Yates, Deputy Att’y Gen, to the Acting Dir. of the Fed. Bureau of Prisons, at 1-2 (Aug. 18, 2016), https://www.justice.gov/archives/opa/file/886311/download COMPLAINT - 42 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 53 of 210 Page ID #:53 1 continue, the Subcommittee, in a report issued in December 2016, offered multiple 2 recommendations, including that DHS expand its oversight over such facilities, 3 improve the quality and quantity of inspections at facilities, and initiate 4 unannounced inspections.52 Significantly, the Subcommittee recommended shifting 5 away from privately provided healthcare toward ICE-Health-Service-Corps- 6 provided healthcare at ICE facilitates for cost and quality reasons.53 165. On information and belief, under this Administration, DHS has heeded 7 8 none of the Subcommittee’s recommendations, and has instead dramatically 9 expanded the use and scope of private and county contractors. For example, IHSC 10 provides direct care to approximately 13,500 detained persons, the same as when 11 DHS made its recommendation in 2016, despite a marked increase in the detained 12 population since then.54 166. Instead, ICE has expanded its use of private prison corporations with 13 14 histories of negligence and abuse, such as GEO and CoreCivic.55 167. GEO, ICE’s most frequently used contractor, has repeatedly failed to 15 16 provide adequate care. In 2012, 26 members of Congress requested an investigation 17 of the GEO-operated Broward Transitional Center in Florida after receiving reports 18 19 20 21 22 23 24 25 26 27 28 52 Homeland Security Advisory Council, U.S. Dep’t of Homeland Sec., Report of the Subcommittee on Privatized Immigration Detention Facilities, at 3 (Dec. 1, 2016), https://www.dhs.gov/sites/default/files/publications/DHS%20HSAC%20PIDF%20 Final%20Report.pdf. 53 Id. at 2. 54 Compare id. at 10 with ICE Health Service Corps, U.S. Immigration & Customs Enf’t (Last Updated: February 26, 2019), https://www.ice.gov/features/healthservice-corps. 55 The GEO Group Inc (GEO) Q1 2019 Earnings Call Transcript, Yahoo Finance (Apr. 30, 2019), https://finance.yahoo.com/news/geo-group-inc-geo-q1223554152.html; Justin Rohrlich, As US communities resist ICE, private prison companies are cashing in, Quartz (Apr. 9, 2019), https://qz.com/1586161/privateprisons-make-big-profits-from-ice/. COMPLAINT - 43 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 54 of 210 Page ID #:54 1 of inadequate medical care for detained immigrants.56 The same year, the 2 Department of Justice found “systematic, egregious, and dangerous practices,” 3 including inadequate medical care, at a GEO facility in Mississippi.57 At another 4 GEO facility in Pennsylvania, seven people died in less than two years, with several 5 deaths resulting in lawsuits alleging that the facility failed to provide adequate 6 medical care.58 In 2011, GEO was held civilly liable in a wrongful death action 7 brought by the estate of an inmate at a GEO facility in Oklahoma.59 There are 8 dozens more suits that have been filed against GEO, ranging from allegations of 9 inmate death to abuse to medical neglect, many of which were settled before trial.60 10 In the past year, both OIG- and state-contracted disability monitor Disability Rights 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 56 Letter from Christina Fialho, Co-Founder & Exec. Dir. of Cmty. Initiatives for Visiting Immigrants in Confinement to Karen Tandy, Subcomm. Chair of Privatized Immigration Det, Facilities Subcomm. (Oct. 3, 2016), https://www.dhs.gov/sites/default/files/publications/DHS%20HSAC%20PIDF%20 Final%20Report.pdf. 57 Dep’t of Justice: Civil Rights Div., Investigation of the Walnut Grove Youth Correctional Facility at 20–33 (Mar. 20, 2012), http://www.justice.gov/crt/about/spl/documents/walnutgrovefl.pdf. 58 Alex Rose, A changing of the guard at county prison, Daily Times News, (Jan. 4, 2009), http://www.delcotimes.com/general-news/20090104/a-changing-of-theguard-at-county-prison. 59 The GEO Group, Inc., Annual Report (Form 10-K) (Mar. 1, 2013), https://www.sec.gov/Archives/edgar/data/923796/000119312513087892/d493925d 10k.htm#tx493925_21. 60 Private Corrections Working Group/Private Corrections Institute: List of GEO Group Lawsuits, PR Watch (Sep. 26, 2013) https://www.prwatch.org/news/2013/09/12255/violence-abuse-and-death-profitprisons-geo-group-rap-sheet; GEO Group/GEO Care Rapsheet, Private Corrections Working Group, https://www.privateci.org/rap_geo.html; GEO Group, Project on Government Oversight, https://www.contractormisconduct.org/contractors/253/geo-group. COMPLAINT - 44 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 55 of 210 Page ID #:55 1 California reported widespread lack of medical care and disability accommodation 2 at the GEO-run Adelanto.61 168. ICE’s other main contractor, CoreCivic, has a similar history of 3 4 refusing to provide adequate medical treatment to those it detains.62 However, 5 despite knowing the inherent risks of contracting with private prison corporations, 6 ICE continues to entrust them with the care of an ever-growing number of detained 7 individuals. 169. ICE’s choice of medical service contractors is similarly disturbing. For 8 9 example, ICE frequently contracts with private medical provider Correct Care 10 Solutions (“CCS”), now rebranded as Wellpath, even though the company has been 11 sued at least 1,395 times over the last decade. Upon information and belief, 12 individuals in ICE custody also receive medical care from Corizon, another private 13 prison healthcare provider. Corizon has been sued over 1,000 times in the past five 14 years.63 In June 2018, the United States District Court for the District of Arizona 15 sanctioned the Arizona Department of Corrections nearly $1.5 million for, among 16 other things, continuing to contract with Corizon, “which has been unable to meet 17 the prisoner’s health care needs,” and for “pa[ying] them more and reward[ing] 18 19 20 21 22 23 24 25 26 27 28 61 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-86: Management Alert – Issues Requiring Action at the Adelanto ICE Processing Center in Adelanto, California, at 9 (Sep.27, 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-10/OIG-18-86-Sep18.pdf; Disability Rights Cal., supra note 36, at 4. 62 See, e.g., Grae v. Corr. Corp. of Am., No. 3:16-CV-2267, 2019 WL 1399600, at *2 (M.D. Tenn. Mar. 26, 2019) (shareholder class certified alleging CoreCivic’s “failure to provide sufficient medical services to its inmates.”); Dodson v. CoreCivic, No. 3:17-CV-00048, 2018 WL 4800836, at *1 (M.D. Tenn. Oct. 3, 2018) (alleging deliberate inference to prisoners medical needs); Pierce v. D.C., 128 F. Supp. 3d 250, 284 (D.D.C. 2015) (finding prisoner’s ADA and Section 504 rights violated at CoreCivic facility). 63 The Jail Health-Care Crisis, The New Yorker (Feb. 25, 2019), https://www.newyorker.com/magazine/2019/03/04/the-jail-health-care-crisis. COMPLAINT - 45 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 56 of 210 Page ID #:56 1 them with financial incentives while limiting the financial penalties for non- 2 compliance.”64 Further, in May 2019, Corizon entered into a consent decree to pay 3 $950,000 to individuals in a case in which the Equal Employment Opportunity 4 Commission alleged that Corizon had discriminated against its disabled 5 employees.65 Despite other prison systems such as the New Mexico, Indiana, 6 Arizona, and Nebraska Departments of Correction terminating contracts with CCS 7 and Corizon because of safety concerns, both companies continue to provide care to 8 ICE detainees.66 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 64 Parsons v. Ryan, No. CV-12-0601-PHX-DKD, 2018 WL 3239691, at *11 (D. Ariz. June 22, 2018). 65 Corizon Health / Corizon LLC to Pay $950,000 to Settle Nationwide EEOC Disability Discrimination Lawsuit, U.S. Equal Opportunity Employment Commission (May 16, 2019), https://www1.eeoc.gov/eeoc/newsroom/release/5-1319b.cfm. 66 Amid safety concerns, company ending medical services contract for Tecumseh State Prison, Omaha World Herald (Jun. 3, 2017), https://www.omaha.com/news/nebraska/amid-safety-concerns-company-endingmedical-services-contract-for-tecumseh/article_17e8e24e-479e-11e7-95a7af05ec215c6f.html; Numerous Lawsuits Filed Against Corizon Nationwide; Company Loses Contracts, Prison Legal News (Aug. 30, 2017), https://www.prisonlegalnews.org/news/2017/aug/30/numerous-lawsuits-filedagainst-corizon-nationwide-company-loses-contracts/; Corizon, the Prison Healthcare Giant, Stumbles Again, The Appeal (February 8, 2019), https://theappeal.org/corizon-the-prison-healthcare-giant-stumbles-again/; City Officials Defend Contract to House ICE Detainees at Henderson Detention Center, Las Vegas Review Journal (May 8, 2017), https://www.reviewjournal.com/crime/city-officials-defend-contract-to-house-icedetainees-at-henderson-detention-center/; Leading For-Profit Prison and Immigration Detention Medical Company Sued At Least 1,395 Times, Project on Government Oversight (Oct. 29, 2018), https://www.pogo.org/investigation/2018/10/leading-for-profit-prison-andimmigration-detention-medical-company-sued-at-least-1-395-times/. COMPLAINT - 46 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 57 of 210 Page ID #:57 2 Multiple Government Entities, Including DHS Itself, Have Concluded That Defendants Are Not Adequately Monitoring and Overseeing Detention Facilities. 3 170. Defendants divide responsibility for monitoring Detention Facilities 4 between government employees and private contractors. There is no independent 5 oversight, inasmuch as all entities that conduct inspections are paid and vetted— 6 either as contractors or as direct employees—by DHS.67 1 V. 7 171. Enforcement and Removal Operations, the branch of ICE responsible 8 for apprehending and deporting noncitizens, is responsible for overseeing 9 confinement across its facilities. Nearly a quarter of Detention Facilities are smaller 10 jails that were permitted to conduct their own unregulated “self-assessments.”68 11 172. ICE’s Custody Management Division (“CMD”) contracts with 12 inspectors to conduct routine inspections of Detention Facilities, assess compliance 13 with ICE detention standards, and develop corrective actions plans. OMD also 14 oversees the on-site Detention Monitoring Program and operates the Detention 15 Reporting and Information Line, which detained individuals and others can use to 16 file complaints.69 17 173. The DHS Office of Inspector General, DHS Office of Civil Rights and 18 Civil Liberties (“CRCL”), and ICE Office of Detention Oversight (“ODO”) are also 19 responsible for conducting inspections to ensure compliance with detention 20 21 67 22 23 24 25 26 27 28 Lives In Peril: How Ineffective Inspections Make ICE Complicit In Detention Center Abuse, National Immigrant Justice Center (October 22, 2015), https://www.immigrantjustice.org/lives-peril-how-ineffective-inspections-makeice-complicit-detention-center-abuse-0. 68 Dear ICE: Congress Is Watching, And So Are We, National Immigrant Justice Center (April 5, 2018), https://immigrantjustice.org/staff/blog/dear-ice-congresswatching-and-so-are-we. 69 U.S. Gov’t Accountability Office, GAO-16-231: Immigration DetentionAdditional Actions Needed to Strengthen Management and Oversight of Detainee Medical Care, at 11 (Feb. 2016), https://www.gao.gov/assets/680/675758.pdf. COMPLAINT - 47 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 58 of 210 Page ID #:58 1 standards and applicable law.70 ODO and ICE’s External Reviews and Analysis 2 Unit are also responsible for conducting a Detainee Death Review (“DDR”) after a 3 detained individual dies.71 174. The ICE Health Service Corps oversees administration, investigates 4 5 detainee complaints related to health care, and manages medical payment 6 authorizations for detainee care inspection of medical care at all Detention 7 Facilities.72 IHSC also monitors and conducts inspections at all facilities, including 8 those in which health care is provided by a contractor. 52 175. Finally, ICE has also created a Detention Monitoring Council 9 10 (“DMC”), comprised of ICE senior leadership, that is supposed to meet regularly to 11 review problems uncovered by the internal or external oversight entities.73 In 12 addition, the DMC supposedly meets immediately after any detained individual’s 13 death or other critical incident.74 176. Though responsibility for conditions compliance is shared by the 14 15 above DHS offices, Defendants primarily rely on periodic detention center 16 inspections performed by a private company, Nakamoto, with which CMD 17 18 19 70 Id. See e.g., Office of Professional Responsibility, Detainee Death Review – Sergio Alonso Lopez, at 1 (“Sergio Alonso Lopez DDR”), https://www.ice.gov/doclib/foia/reports/ddrLopez.pdf; Office of Professional Responsibility, Detainee Death Review – Moises Tino Lopez, at 1 (“Moises Tino Lopez DDR”), https://www.ice.gov/doclib/foia/reports/ddr-Tino.pdf. 72 U.S. Gov’t Accountability Office, GAO-16-231, supra note 69, at 11. 73 Holiday on ICE: The U.S. Dep’t of Homeland Sec.’s New Immigration Detention Standards Before the Subcomm. on Immigration Policy & Enf’t, H. Comm. on the Judiciary, 112th Cong. 112-104 (2012) (Statement Of Kevin Landy, Assistant Dir. Office of Det. Policy & Planning, U.S. Immigration And Customs Enf’t,), https://archive.org/stream/gov.gpo.fdsys.CHRG-112hhrg73543/CHRG112hhrg73543_djvu.txt. 74 Id. 71 20 21 22 23 24 25 26 27 28 COMPLAINT - 48 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 59 of 210 Page ID #:59 1 contracts. Nakamoto annually or biennially inspects facilities that hold ICE 2 detainees more than 72 hours.75 177. Both GAO and OIG have repeatedly expressed concern over major 3 4 structural deficiencies in ICE’s contract and oversight system. In 2016, GAO found 5 that it is unclear whether IHSC’s data tracking system “will capture all medical 6 complaints received by DHS or facilitate analyses of complaints over time and 7 across facilities” and that, because of a lack of resources allocated, “ICE does not 8 utilize the data gathered . . . in a way that examines overall trends in medical care 9 deficiencies.”76 The GAO observed that under CMD’s monitoring scheme, a 10 facility may be found deficient as to individual systemic medical provision criteria, 11 but still be found compliant with the overall relevant medical care standard.77 At 12 smaller facilities, ICE does no systematic analysis of inspection reports.78 Nor does 13 ICE perform or have any plans to perform any type of analysis on complaints 14 received by ODO, CRCL, and IHSC.79 178. Likewise, in 2018, OIG found major deficiencies in ICE’s external and 15 16 internal monitoring mechanisms.80 The OIG report included a telling recitation of 17 the long-standing deficiencies in Defendants’ monitoring practices: 18 ICE’s difficulties with monitoring and enforcing compliance 19 with detention standards stretch back many years and continue 20 today. In 2006, [OIG] identified issues related to ICE Detention 21 75 22 23 24 25 26 27 28 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-47: ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, at 2 (Jun. 26, 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf. 76 U.S. Gov’t Accountability Office, GAO-16-231, supra note 69, at 26. 77 Id. at 21–22. 78 Id. at 27. 79 Id. at 26–27 80 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-47, supra note 75, at 5–10. COMPLAINT - 49 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 60 of 210 Page ID #:60 1 Facility inspections and implementation of corrective actions. In 2 our 2006 report, we recommended that ICE “improve the 3 inspection process and ensure that all non-compliance 4 deficiencies are identified and corrected.” In a December 2017 5 report, which related to OIG’s unannounced inspections of five 6 Detention Facilities, we identified problems in some of the same 7 areas noted in the 2006 report.81 8 179. Specifically, OIG found the Nakamoto inspections deficient because: 9 (1) inspections required too much work for such small teams to complete over a 10 short period of time; (2) some inspections were not thorough; (3) instead of 11 interviewing detained individuals privately in a confidential area, the inspectors 12 mostly held group conversations in the presence of Detention Facility personnel, 13 and conducted the interviews only in English without any interpreters; 14 (4) Nakamoto’s inspection reports contained inaccuracies; and (5) ICE did not 15 perform any quality assurance visits to assess Nakamoto’s performance.82 180. The 2018 OIG report also found that Nakamoto’s inspectors did not 16 17 follow inspection protocols and misrepresented information in final inspection 18 reports.83 OIG detailed how some inspectors relied on brief answers from staff 19 interviews and reviews of written policies to evaluate facility conditions, instead of 20 conducting personal observations as required.84 Nakamoto inspectors also made 21 misrepresentations in their inspection reports that were inconsistent with OIG 22 observations during the same visit. At one facility, Nakamoto reported that detained 23 individuals understood how to get assistance from ICE officers and their case 24 managers, and that detained individuals also made positive comments about access 25 26 81 27 82 28 Id. Id. 83 Id. at 5. 84 Id. at 6–7. COMPLAINT - 50 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 61 of 210 Page ID #:61 1 to law library services and family visitation. In contrast, however, OIG inspectors 2 noted that they “heard detainees tell inspectors they did not know the identity of 3 their ICE deportation officer or how to contact the officer” and “did not observe 4 inspectors asking any detainees about law library services or visiting 5 opportunities.” 85 At another facility, inspectors reported that corrections officers 6 “exhibited an understanding of the detention standards and civil detention” without 7 having spoken to any such officers during the visit.86 8 181. OIG also found that “[s]everal ICE employees in the field and 9 managers at ICE ERO headquarters commented that Nakamoto inspectors ‘breeze 10 by the standards’ and do not ‘have enough time to see if the [facility] is actually 11 implementing the policies.’”87 These employees and managers also described 12 Nakamoto inspections as being “very, very, very difficult to fail.”88 “One ICE ERO 13 official suggested these inspections are ‘useless.’”89 Further, at least some 14 inspectors speak only to facility staff and English-speaking detained individuals, 15 and some do not enter all areas of the facilities.90 The OIG report also found that 16 “all Nakamoto and ODO inspections are scheduled in advance and announced to 17 the facilities, which, according to ICE field staff, allows facility management to 18 temporarily modify practices to ‘pass’ an inspection.”91 182. Additionally, a 2016 Homeland Security Advisory Council report 19 20 found Nakamoto’s inspections flawed because they “focus on quantitative 21 85 22 23 24 25 26 27 28 Id. at 9. Id. at 10. 87 Id. at 7. 88 Id. 89 Id. at 10. 90 At Immigration Detention Facilities, 'Inspectors for Hire' Miss Signs of Neglect, Say Critics, Yahoo News (Mar. 12, 2019), https://news.yahoo.com/at-immigrationdetention-facilities-inspectors-for-hire-miss-signs-of-neglect-say-critics090000015.html?soc_src=community&soc_trk=tw. 91 Id. 86 COMPLAINT - 51 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 62 of 210 Page ID #:62 1 measurement of inputs rather than qualitative inquiry.”92 That is, Nakamoto 2 inspections use yes/no checklists, instead of reviewing the extent to and means by 3 which facilities can improve compliance. Notably, none of the items in Nakamoto’s 4 checklist requires review of disability access or accommodation.93 183. As for inspections by ODO, the 2018 OIG report concluded that “these 5 6 inspections are too infrequent to ensure the facilities implement all corrections.”94 7 Of the approximately 158 facilities that ICE monitors, ODO inspects only 8 approximately 30 facilities each year.95 184. The 2018 OIG report also identified problems with monitoring by 9 10 ICE’s Detention Service Monitors (“DSMs”). First, DSMs are in place at only 52 11 Detention Facilities. Second, “to correct instances of noncompliance, DSMs usually 12 must rely on local ERO field office assistance”—and, in some instances, local ERO 13 management was disengaged or reluctant to work with DSMs.”96 185. In 2019, OIG issued a report summarizing unannounced inspections at 14 15 Adelanto, Aurora, LaSalle, and Essex County Correctional Facility (“Essex 16 County”). These inspections “revealed violations of ICE’s detention standards and 17 18 19 20 21 22 23 24 25 26 27 28 92 Homeland Sec. Advisory Council, U.S. Dep’t of Homeland Sec., Report of the Subcommittee on Privatized Immigration Detention Facilities, supra note 52, at 14. https://www.dhs.gov/sites/default/files/publications/DHS%20HSAC%20PIDF%20 Final%20Report.pdf. 93 See, e.g., Letter from Lead Compliance Inspector, The Nakamoto Grp., to Assistant Dir. for Detention Mgmt. (Oct. 11, 2018), https://www.ice.gov/doclib/facilityInspections/adelantoEastCa_CL_10_11_2018.pd f; Letter from Lead Compliance Inspector, The Nakamoto Grp., to Assistant Dir. for Detention Mgmt. (May 3, 2018), https://www.ice.gov/doclib/facilityInspections/stewartDetCtrGA_CL_05_03_2018. pdf. 94 Office of Inspector Gen., Dep’t of Homeland Sec., OIG-18-47, supra note 75, at 4, https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf. 95 Id. at 10. 96 Id. at 14–15. COMPLAINT - 52 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 63 of 210 Page ID #:63 1 raised concerns about the environment in which detainees are held.”97 The report 2 recommended that ICE improve its oversight detention facility management and 3 operations, and that “ICE could mitigate and resolve many of these issues through 4 increased engagement and interaction with the facilities and their operations.”98 186. ICE’s own officials have raised concerns related to monitoring. In a 5 6 memo from December 2018, an ICE supervisor notified then Acting Deputy 7 Director of ICE Matthew Albence that “IHSC is severely dysfunctional and 8 unfortunately preventable harm and death to detainees has occurred . . . [and that] 9 IHSC leadership is not focused on preventing horrible recurrences.”99 According to 10 the memo, IHSC officials fail to review reports of severe mental health disabilities 11 representing a high risk of suicide.100 The memo asserted that “many detainees have 12 encountered preventable harm and death [and] IHSC leadership is not focused on 13 preventing horrible recurrences.”101 The memo then went on to detail over a dozen 14 cases in which detained individuals were not provided with proper medical and 15 mental health care, including two that resulted in fatalities.102 187. Nongovernmental organizations have also repeatedly identified the 16 17 systemic problems with ICE’s inspection system. For example, a January 2018 18 report by the Detention Watch Network and National Immigrant Justice Center 19 20 21 22 23 24 25 26 27 28 97 Office of Inspector General, U.S. Dep’t of Homeland Sec., OIG-19-47: Concerns About ICE Detainee Treatment and Care at Four Detention Facilities, at 3 (Jun. 3, 2019), https://www.oig.dhs.gov/sites/default/files/assets/2019-06/OIG-19-47Jun19.pdf. 98 Id. at 12. 99 Memorandum to Matthew Albence, Acting Deputy Dir., U.S. Immigr. and Customs Enf’t (Dec. 3, 2018), https://tyt.com/stories/4vZLCHuQrYE4uKagy0oyMA/688s1LbTKvQKNCv2E9bu 7h. 100 Id. 101 Id. 102 Id. COMPLAINT - 53 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 64 of 210 Page ID #:64 1 concluded that these inspections are fundamentally flawed in that “they are not 2 independent, they do not include interviews with detained people, they provide 3 advance notice to the facilities and look for the existence of policies rather than 4 evidence that these policies are followed, and they often misrepresent conditions 5 inside the facility, for example counting an indoor room with a skylight as outdoor 6 recreation.”103 188. Defendants’ failure to properly monitor Detention Facilities can have 7 8 deadly consequences. For example, an April 2017 OIG inspection found that 9 Stewart Detention Center suffered from major staffing issues, prompting one 10 employee to describe the medical care situation as “a ticking time bomb.”104 11 That May, Nakamoto’s inspection found that Stewart complied with all 39 12 applicable standards.105 The same month, Jean Carlo Jimenez Joseph, who ICE 13 detained at Stewart, died by suicide there because of a guard’s failure to 14 perform a required cell check.106 Then, in January 2018, 33-year-old Yulio 15 Castro-Garrido died of pneumonia while detained at Stewart.107 In July 2018, 16 17 18 19 20 21 22 23 24 25 26 27 28 103 Detention Watch Network & National Immigrant Justice Center, supra note 13, at 6. 104 Office of Inspector General, U.S. Dep’t of Homeland Sec., OIG Freedom of Information Act Request No. 2018-IGFO-00059 Final Response, at 16 (April 25, 2018), https://www.wabe.org/wp-content/uploads/2018/05/2018-IGFO00059_Final-Response_watermark-4.pdf; see also Investigation finds ICE detention center cut corners and skirted federal detention rules, Public Radio International (March 15, 2018), https://www.pri.org/stories/2018-03-15/investigation-finds-icedetention-center-cuts-corners-and-skirted-federal; Katherine Hawkins, Outsourced Oversight, Project on Government Oversight (March 12, 2019), https://www.pogo.org/investigation/2019/03/outsourced-oversight/. 105 Letter from Lead Compliance Inspector to Assistant Dir. for Detention Mgmt., supra note 93, at 2. 106 Investigative Summary, GA Bureau of Investigation, at 92–93 (May 19, 2017) (on file with Plaintiffs’ Counsel). 107 ICE detainee passes away, U.S. Immigration & Customs Enf’t, (Jan. 31, 2018), https://www.ice.gov/news/releases/ice-detainee-passes-away. COMPLAINT - 54 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 65 of 210 Page ID #:65 1 Efrain De La Rosa, another person ICE was detaining at Stewart, died by 2 suicide in circumstances almost identical to Mr. Jimenez Joseph.108 In both 3 cases, CoreCivic guards failed to perform a required check of the detained 4 individual’s cell and then falsified logs to cover for that failure.109 The Nakamoto 5 inspections failed to raise systematic failures of care at Stewart that could have 6 prevented these deaths. 189. Similarly, at Adelanto, Nakamoto’s 2017 and 2018 inspection reports 7 8 found that the facility met all 40 applicable detentions standards.110 However, in 9 between the two reports, OIG issued a report on Adelanto finding nooses in 10 detained individuals’ cells, improper and overly restrictive segregation, and 11 untimely and inadequate medical care.111 Nakamoto’s 2018 report, instead of 12 seriously addressing OIG’s findings, dismissed them and admonished that “it would 13 be advantageous for OIG to use inspectors with detention and corrections 14 backgrounds for future inspections to avoid this type of embarrassment to their 15 16 17 108 18 19 20 21 22 23 24 25 26 27 28 Investigation Report Form, CoreCivic General Counsel Office of Investigation, at 10 (Aug. 6, 2018) (on file with Plaintiffs’ Counsel). 109 Private prison giant under fire for pressuring Georgia to keep immigrant detainee’s death report sealed, Fast Company (Dec. 10, 2018), https://www.fastcompany.com/90279208/private-prison-giant-under-fire-forpressuring-georgia-to-keep-immigrant-detainees-death-report-sealed; Investigation finds ICE detention center cut corners and skirted federal detention rules, Public Radio International, (Mar. 15, 2018), https://www.pri.org/stories/2018-0315/investigation-finds-ice-detention-center-cuts-corners-and-skirted-federal. 110 Letter from Lead Compliance Inspector to Assistant Dir. for Detention Mgmt., supra note 93, at 2.; Letter from Lead Compliance Inspector, The Nakamoto Grp., to Assistant Dir. for Detention Mgmt., at 2 (Oct. 11, 2018), https://www.ice.gov/doclib/facilityInspections/adelantoWestCa_CL_10_11_2018.p df. 111 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-86 supra note 61, at 2, 7, 8. COMPLAINT - 55 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 66 of 210 Page ID #:66 1 office and ICE.”112 A March 2019 report by Disability Rights California 2 subsequently confirmed and supported OIG’s findings that medical and mental 3 health care and segregation policies were seriously deficient at Adelanto.113 4 190. These are only a few examples of Nakamoto’s system-wide 5 incompetence. As stated by Scott Shuchart, Senior Advisor at CRCL for eight 6 years, “Nakamoto has no credibility because of the volume of problems it has 7 failed to uncover at multiple facilities over multiple years. . . . It is a checklist 8 driven, superficial inspection process.”114 Similarly, in November 2018, 11 U.S. 9 Senators wrote to Nakamoto Group expressing concern that its inspections “are 10 potentially misrepresenting conditions in these facilities or underreporting 11 violations.”115 However, despite all evidence that Nakamoto provides an 12 ineffective oversight mechanism, Defendants continue to contract with the 13 company for critical inspection services. 14 191. ODO inspections also fail to lead to systemic change. A 2016 15 inspection of Aurora found deficiencies related to medical notifications, including 16 that the Health Services Administrator (“HSA”) was not notified of detained 17 individuals determined to be in need of mental health services during intake, and 18 that 11 out of 26 medical records of chronic care patients lacked the required 19 20 21 22 23 24 25 26 27 28 112 Letter from Lead Compliance Inspector to Assistant Dir. for Detention Mgmt., supra note 93, at 2. 113 Disability Rights Cal., supra note 36, at 4. 114 Katherine Hawkins, Outsourced Oversight, Project on Government Oversight (March 12, 2019), https://www.pogo.org/investigation/2019/03/outsourcedoversight/. 115 Letter from Senator Elizabeth Warren et al. to Jennifer H. Nakamoto, President Nakamoto Grp., at 1 (Apr. 15, 2018), https://www.warren.senate.gov/imo/media/doc/2018-1116%20Letter%20to%20Nakamoto%20Group%20re%20ICE%20Detention%20Faci lity%20Inspections.pdf. COMPLAINT - 56 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 67 of 210 Page ID #:67 1 medical or psychiatric alerts forms.116 The following year, this problem at Aurora 2 still existed, as demonstrated by the DDR for Kamyar Samimi, who died of opioid 3 withdrawal at the facility due to intake failures.117 Overall, in 2018, OIG concluded 4 that Periodic Inspections do not “ensure consistent compliance with detention 5 standards, nor do they promote comprehensive deficiency corrections.”118 As 6 Inspector General John V. Kelly testified in March 2019, “neither the inspections 7 nor the onsite monitoring ensure consistent compliance with detention standards, 8 nor do they promote comprehensive deficiency corrections.”119 192. Even after inspections reveal major flaws, Defendants regularly fail to 9 10 take corrective action. Though ERO Field Offices are tasked to respond to 11 inspection flaws with corrective plans, they “do not always respond”; “some 12 respond late, submit incomplete responses, or report that facility deficiencies will 13 continue due to local policies or conditions.”120 Repeat offenses are common, as 14 “ICE does not appear to have a comprehensive process to verify whether facilities 15 implemented all the corrective actions until the next Nakamoto or ODO 16 inspection.”121 17 116 18 19 20 21 22 23 24 25 26 27 28 Office of Detention Oversight, U.S. Dep’t of Homeland Sec., Enforcement and Removal Operations ERO Denver Field Office Denver Contract Detention Facility Aurora, CO, at 9 (April 2016), https://www.ice.gov/doclib/foia/odo-complianceinspections/denverContractDetentionFacilityAuroraCoApr_12_14_2016.pdf. 117 Office of Professional Responsibility, Detainee Death Review – Kamyar Samimi, at 2, (“Kamyar Samimi DDR”) https://bento.cdn.pbs.org/hostedbentoprod/filer_public/RMPBS%20PDFs/RMPBS%20News/2018-ICFO-47347.pdf. 118 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-47, supra note 75, at 4. 119 “DHS Office of the Inspector General” Before the Subcomm. on Homeland Sec., H. Comm. on Appropriations, 116th Cong. (2019) (Statement Of John V. Kelly, Acting Inspector Gen., U.S. Dep’t of Homeland Sec.), https://www.oig.dhs.gov/sites/default/files/assets/TM/2019/oigtm-jvk-030619.pdf 120 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-47, supra note 75, at 11. 121 Id. at 12. COMPLAINT - 57 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 68 of 210 Page ID #:68 1 193. Likewise, Defendants often delay responding to or implementing 2 CRCL recommendations. For example, CRCL’s 2015 report to Congress stated that 3 it sent ICE 49 recommendations at an Arizona facility in which three individuals 4 died between October 2012 and April 2013.122 However, ICE took two years to 5 respond, and even then, CRCL concluded that ICE did not respond appropriately to 6 30 of the 49 recommendations.”123 Similarly, CRCL provided ICE with 7 recommendations concerning two facilities in 2012, and when ICE finally 8 responded two and a half years later, “a large number of the responses were deemed 9 to be either incomplete or unresponsive by CRCL.”124 CRCL has no enforcement 10 power, so ICE is free to disagree with CRCL recommendations or refuse to 11 implement them.125 194. Defendants also shirk their obligations when they flout a 12 13 Congressional directive to “complete and make public an initial report regarding 14 any in-custody death within 30 days of such death, with subsequent reporting to be 15 completed and released within 60 days of the initial report.”126 Though Defendants 16 have been releasing those reports, beginning fiscal year 2018, ICE stopped 17 releasing detailed Detainee Death Reviews to its FOIA library, and instead now 18 publishes cursory “detainee death reports” that recite the basic facts surrounding a 19 death without detailing why the death happened, what standards were violated, or 20 how processes could be improved to prevent further deaths.127 21 122 22 23 24 25 26 27 28 Office for Civil Rights & Civil Liberties, U.S. Dep’t of Homeland Sec., Fiscal Year 2015 Annual Report to Congress, at 45 (Jun. 10, 2016), https://www.hsdl.org/?view&did=801456. 123 Id. 124 Id. at 40. 125 See 6 U.S.C. § 345. 126 H.R. Rep. No. 115-239 (2018). 127 Death Detainee Report, Immigration & Customs Enf’t (last updated May 20, 2019), https://www.ice.gov/death-detainee-report; ICE Releases Sham Immigrant Death Reports As It Dodges Accountability And Flouts Congressional COMPLAINT - 58 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 69 of 210 Page ID #:69 1 195. Defendants also attempt to evade their reporting responsibilities by 2 interpreting Congress’s mandate to complete reports on an “in-custody death” to 3 not include deaths in which a detained person is transferred to a hospital to die.128 4 By releasing detained individuals to their deathbeds, ICE evades reporting 5 requirements and artificially suppresses the number of deaths for which it is 6 considered responsible. For example, in May 2019, ICE diagnosed Johana Medina 7 Leon with HIV and then immediately released her to a hospital, where she died four 8 days later.129 In February 2019, ICE “released” a comatose José Luis Ibarra Bucio 9 to a hospital in which he died shortly thereafter.130 ICE did not release even a 10 11 cursory “detainee death report” for either individual.131 196. Those few times when ICE makes adverse findings regarding 12 conditions in Detention Facilities, they typically do not result in any 13 consequences. A January 2019 OIG report found numerous deficiencies in 14 ICE’s contract enforcement mechanisms.132 15 197. First, the 2019 OIG report found that ICE does not consistently use 16 contract-based quality assurance tools or impose consequences for contract 17 noncompliance. Only 28 of 106 contracts reviewed for the OIG report contained 18 Quality Assurance Surveillance Plan provisions that outlined requirements for 19 compliance with performance standards, and potential actions ICE can take when a 20 21 22 23 24 25 26 27 28 Requirements, National Immigrant Justice Center (Dec. 19, 2018), https://immigrantjustice.org/press-releases/ice-releases-sham-immigrant-deathreports-it-dodges-accountability-and-flouts. 128 A Trans Asylum Seeker Dies After Pleading to ICE for Medical Care, The Nation (June 4, 2019), https://www.thenation.com/article/ice-otero-joa-transgenderdeath/. 129 Id. 130 Id. 131 Death Detainee Report, Immigration & Customs Enf’t, supra note 127. 132 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-19-18, supra note 45, at 15. COMPLAINT - 59 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 70 of 210 Page ID #:70 1 contractor fails to meet those standards.133 This results in confusion among 2 contracting officers as to whether they can issue Discrepancy Reports documenting 3 noncompliance, and whether they can seek financial penalties for 4 noncompliance.134 198. Second, OIG found that ICE very rarely imposes any consequences on 5 6 its contractors for noncompliance.135 From October 2015 to June 2018, various 7 inspections and DSMs found 14,003 deficiencies at the 106 contract facilities 8 reviewed by OIG, yet ICE imposed financial penalties only twice.136 One of those 9 two fines was for underpayment of wages to contractors.137 Stewart and Adelanto, 10 for example, have never been fined, despite multiple detainee deaths and internal 11 OIG findings of noncompliance. Further, beginning in fiscal year 2009, Congress 12 added language to the DHS appropriations bill requiring that ICE terminate 13 contracts for any facility that failed two consecutive inspections.138 Since then, no 14 facility has failed two consecutive inspections.139 199. Third, the 2019 OIG report noted that ICE uses waivers to excuse 15 16 substandard conditions in Detention Facilities.140 ICE frequently issues waivers of 17 compliance to facilities with deficient conditions; however, ICE lacks a formal 18 policy to govern the waiver process, and it has allowed ERO officials without clear 19 authority to grant waivers.141 Contract facilities may be exempt from compliance 20 21 133 Id. at 7. Id. 135 Id. at 7–8. 136 Id. 137 Id. at 9. 138 Department of Homeland Security Appropriations Act of 2009, H.R. 6947, 110th Cong. at 18 (2008). 139 Hawkins, supra note 114. 140 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-19-18, supra note 45, at 7. 141 Id. 134 22 23 24 25 26 27 28 COMPLAINT - 60 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 71 of 210 Page ID #:71 1 indefinitely, as some waivers lack an end date and are not reviewed after 2 approval.142 Further, ICE fails to communicate about waivers to its Office of 3 Acquisitions Management.143 Thus, Acquisitions Management cannot ensure that 4 its Contract Officers’ Representatives, or CORs, know about waiver decisions, 5 which undermines their ability to monitor their assigned contracts. 200. Fourth, OIG found that ICE’s policies result in inadequate 6 7 enforcement of contracts because (a) ICE’s policy of placing CORs in ERO Field 8 Offices inhibits their ability to enforce contracts, and (b) ICE assigns too many 9 contracts to individual CORs to allow CORs to adequately enforce those contracts. 10 Specifically, CORs’ current placement within ERO Field Offices has resulted in 11 pressure for CORs to break protocol, the assignment of additional duties that create 12 unachievable workloads, and the creation of environments impeding the oversight 13 of contracts.144 For example, OIG’s 2019 report found that “[t]hree Field Offices 14 restricted CORs from traveling to Detention Facilities” to evaluate compliance.145 15 Some CORs reported that they “were hesitant to identify instances of 16 noncompliance or issue Discrepancy Reports . . . because they feared retaliation 17 from Field Office management.”146 201. Fifth, a lack of direct access to important contract files hinders CORs’ 18 19 and DSMs’ ability to monitor detention contracts.147 CORs and DSMs both monitor 20 detention contracts, but they lack consistent access to essential contract files 21 including contracts and modifications.148 CORs and DSMs do not have electronic 22 access to contract files, and instead must maintain their own files—but they do not 23 142 24 25 26 27 28 Id. at 10. Id. at 12. 144 Id. 145 Id. at 13. 146 Id. 147 Id. at 14–15. 148 Id. at 15. 143 COMPLAINT - 61 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 72 of 210 Page ID #:72 1 always receive contracts and modifications and must try to obtain these documents 2 on their own, which can be time-consuming and inefficient.149 202. Ultimately, as OIG’s 2019 report concluded, “[n]ot only does ICE not 3 4 fully use contracting tools to hold detention facility contractors accountable for 5 failing to meet performance standards, [OIG’s] previous work has determined that 6 ICE’s inspections and onsite monitoring do not ensure consistent compliance with 7 detention standards or promote comprehensive deficiency corrections.”150 By 8 Defendants’ own Inspector General’s assessment, ICE has failed to meet 9 monitoring and oversight responsibilities, leaving the tens of thousands in 10 Defendants’ custody to suffer. 11 VI. 12 13 14 As a Result of Defendants’ Failure to Monitor and Oversee Medical and Mental Health Care at Detention Facilities, Conditions in Those Facilities Constitute Punishment and Expose Plaintiffs and Class Members to Substantial Risk of Serious Harm. 203. All Plaintiffs and the Class challenge Defendants’ failure to ensure 15 Detention Facilities provide constitutionally adequate medical and mental health 16 care. 17 204. Specifically, the polices, practices, and procedures include but are not 18 limited to Defendants’ failures to ensure the following: (1) adequate medical and 19 mental health care without lengthy and dangerous delays and outright denials of 20 care; (2) timely access to medically necessary specialty care or chronic care; 21 (3) provision of health care by trained or qualified personnel; (4) provision of 22 timely emergency health care; (5) adequate physical and mental health intake 23 screening; (6) adequate staffing of medical and mental health care positions; 24 (7) adequate mental health care; (8) adequate maintenance of medical records and 25 documentation; and (9) location of Detention Facilities in places where specialists 26 and community health care providers are readily available. In addition, the Class 27 149 28 150 Id. Id. at 17. COMPLAINT - 62 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 73 of 210 Page ID #:73 1 challenges Defendants’ policies, practices, and procedures resulting in Defendants’ 2 failure to ensure that conditions of confinement at Detention Facilities are not 3 similar to, or worse than, conditions found in prisons. Together, these practices will 4 be referred to as the “Challenged Practices.” 5 205. Organizational Plaintiffs ICIJ and Al Otro Lado have had to divert 6 resources, and have had their missions frustrated, as a result of the Challenged 7 Practices. 8 206. All Individual Plaintiffs and members of the Class face a substantial 9 risk of serious harm resulting from Defendants’ failure to adequately monitor and 10 11 oversee the Challenged Practices at Detention Facilities. 207. In addition, conditions of confinement that are expressly intended to 12 punish, that are not reasonably related to a legitimate governmental objective, or 13 that are excessive in relation to that objective constitute punishment in violation of 14 the Fifth Amendment due process clause. 15 208. As a result of Defendants’ failure to adequately monitor and oversee 16 medical and mental health care practices in Detention Facilities, the Individual 17 Plaintiffs and members of the Class are subjected to the Challenged Practices, 18 which individually and collectively constitute punishment because they are 19 expressly intended to punish, and are not reasonably related to a legitimate 20 governmental objective and/or are excessive in relation to that objective. 21 A. 22 23 Defendants Systemically Fail to Ensure That Detained Individuals Receive Timely Medical and Mental Health Care. 209. Defendants have a policy and practice of systemically failing to 24 monitor and enforce requirements to provide timely access to medical and mental 25 health care. Across Defendants’ network of Detention Facilities, detained 26 individuals experience lengthy and dangerous delays, and often outright denials, in 27 receiving medical and mental health care. 28 COMPLAINT - 63 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 74 of 210 Page ID #:74 1 210. To seek care, detained individuals regularly must make repeated 2 requests to staff for medical attention—and then wait for days for a response. Once 3 they do receive a response, it is often days, weeks, or months before they can see 4 medical staff within Detention Facilities. They are commonly given over-the- 5 counter pain medication as the only intervention, even if the underlying medical 6 issue—from cancer to chest pain to depression—requires more serious and 7 immediate treatment. 211. Detained individuals experience harm and unnecessary pain and 8 9 suffering as a result of these delays and denials. Examples of the harm include 10 cancer that goes undiagnosed for years, severe pain that is left untreated, and 11 detained individuals who are placed at risk of amputation and other severe medical 12 consequences. 212. Moreover, Defendants are deliberately indifferent to the serious risk of 13 14 substantial harm and injury to detained individuals that results from this systemic 15 failure. Delays and denial of medical and mental health care have been cited 16 repeatedly in government reviews documenting detained individuals’ deaths, in the 17 government’s own reporting on Defendants’ Detention Facility network, and in 18 non-governmental organization reporting. Despite these reports, Defendants have 19 taken no effective steps to eliminate or mitigate the delays and denial of care, 20 exposing Plaintiffs and members of the Class to significant risk of serious medical 21 harm. 22 23 24 213. These problems are systemic, as shown by the examples below of delays or denials of medical treatment at Detention Facilities across the country. 214. Plaintiff Jimmy Sudney has experienced numerous delays in care for 25 his vision. In late 2015 and early 2016, while detained, he had surgeries to implant 26 and then remove silicone and a lens from his eye. His doctors then intended to 27 perform another surgery on December 9, 2016, to address glaucoma, a second- 28 degree cataract, and a detaching retina. On December 7, two days before he was to COMPLAINT - 64 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 75 of 210 Page ID #:75 1 have surgery, he was transferred to Eloy. Mr. Sudney told the doctor at Eloy that he 2 was supposed to have surgery, but did not have access to papers from his previous 3 doctors to show the Eloy doctor what he needed. Mr. Sudney was hospitalized three 4 times related to his high eye pressure while in detention at Eloy—once because the 5 Eloy doctor gave him medicine that gave him a seizure. The month after Mr. 6 Sudney filed a complaint regarding inadequate care for his eye, he was transferred 7 to Adelanto. 8 9 215. At Adelanto, Mr. Sudney continues to experience delays in care for his eye. He saw a retina specialist in November 2018, who he did not see again until 10 May 2019—six months later. In July 2019, an outside doctor told Mr. Sudney that 11 he needs to have surgery as soon as possible, before he loses his vision completely. 12 Mr. Sudney’s eye is getting worse—it is blurry when he reads, stays red, and he is 13 losing vision and starting to see flashing light and dripping on his eye. Mr. Sudney 14 has still not had the surgery he has needed since December 2016. 15 216. Plaintiff Melvin Murillo Hernandez endured four allergic, anaphylactic 16 shocks in six months before facility staff ordered a blood test to determine the 17 extent of Mr. Murillo Hernandez’s allergies. On May 1, 2019, after Mr. Murillo 18 Hernandez had already once required hospitalization for anaphylactic shock, two 19 independent doctors informed ICE that Mr. Murillo Hernandez required access to 20 an EpiPen and an environment free of allergens. Staff at River did nothing, and Mr. 21 Murillo Hernandez subsequently required hospitalization on May 5 and May 6, 22 2019. Though medical staff did not identify any known allergens as the cause for 23 Mr. Murillo Hernandez’s May 5 and May 6 anaphylaxis, medical staff again failed 24 to do any additional allergy testing or provide him access to an EpiPen. As a result, 25 Mr. Murillo Hernandez subsequently suffered at least another two hospitalizations. 26 Though medical staff referred him to an allergist on May 8, 2019, they never took 27 him to see any specialist until August 14, 2018. They waited until June 2019 to 28 perform the blood test necessary to determine Mr. Murillo Hernandez’s allergies. COMPLAINT - 65 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 76 of 210 Page ID #:76 217. Likewise, on May 10, 2019, Mr. Murillo Hernandez told a nurse that 1 2 his heart was beating fast and his chest was hurting. Given Mr. Murillo 3 Hernandez’s allergy history, medical staff should have closely monitored his 4 condition. Instead, the nurse told him the he was fine and did not order any 5 observation. The following morning, because of these failures, Mr. Murillo 6 Hernandez once again went into severe anaphylactic shock necessitating 7 hospitalization. 218. Plaintiff Alex Hernandez has experienced blurry vision and reported it 8 9 to medical staff at Etowah in or around April 2019. He was previously prescribed 10 glasses which were broken. He requested to see an optometrist. A nurse conducted 11 his vision test and told him he did not meet ICE’s requirements to see an 12 optometrist, although the findings of the vision test are not noted in his records. He 13 was told he would receive reading glasses, but he has not received them and cannot 14 read his legal papers or other documents without borrowing another detainee’s 15 glasses. Mr. Hernandez also has a torn rotator cuff, loss of vision, Barrett’s 16 esophagus, and persistent pain in his hip, legs, and feet, and PTSD, for which he 17 needs ongoing medical care. 219. Plaintiff Salazar Artaga experienced a delay of more than a month in 18 19 receiving psychiatric care and appropriate psychotropic medication upon his arrival 20 to Florence Correctional Center, even after requesting the medication and 21 exhibiting symptoms of psychosis—banging his head on the walls, scratching 22 himself to the point that he was bleeding, and auditory and visual hallucinations— 23 because of a failure to identify his condition and suspicion of secondary gain. This 24 delay contributed to avoidable self-harm. 220. The experiences of Plaintiffs are not unique. Worse yet, Defendants 25 26 are on notice of, but have failed to remedy, these systemic delays and denials of 27 care. 28 COMPLAINT - 66 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 77 of 210 Page ID #:77 221. For example, a report OIG produced on Adelanto concluded that 1 2 “detainees do not have timely access to proper medical care,” and that “detainees 3 are placed on wait lists for months and, sometimes, years to receive basic dental 4 care.” 151 222. According to a December 2017 OIG report, detained individuals at the 5 6 Stewart Detention Center in Georgia and the Santa Ana City Jail in California, 7 which previously contracted with ICE, reported “long waits for the provision of 8 medical care, including instances of detainees with painful conditions, such as 9 infected teeth and a knee injury, waiting days for medical intervention.”152 10 223. Between 2011 and 2019, Detainee Death Reviews, or DDRs, 11 documented lengthy and dangerous delays and denials of medical and mental health 12 care at Detention Facilities across the country, including Adelanto, Albany County 13 Correctional Facility (“Albany County”), Aurora, Brooks County Detention Center 14 (“Brooks County”), Dodge County Detention Center (“Dodge County”), Elizabeth 15 Detention Center (“Elizabeth”), Eloy, El Paso Processing Center (“El Paso”), 16 Houston Contract Detention Center (“Houston”), Hudson County Correctional 17 Facility (“Hudson County”), Immigration Centers of America—Farmville 18 (“Farmville”), Joe Corley Detention Center (“Joe Corley”), Krome Service 19 Processing Center (“Krome”), Rio Grande Detention Center (“Rio Grande”), 20 Rolling Plains Correctional Facility (“Rolling Plains”), South Texas Detention 21 Complex (“South Texas”), Stewart, Theo Lacy, and Utah County Jail (“Utah 22 County”). These delays and denials contributed to a substantial number of the 23 deaths reviewed. 24 25 26 27 28 151 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-86, supra note 61, at 7. 152 Office of Inspector Gen., Office of Homeland Sec., OIG-18-32: Concerns About ICE Detainee Treatment and Care at Detention Facilities, at 7 (2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32-Dec17.pdf. COMPLAINT - 67 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 78 of 210 Page ID #:78 224. A 2018 Human Rights Watch (“HRW”) report further documents 1 2 detainee deaths connected to dangerous and unreasonable delays in medical care at 3 Adelanto, El Paso, Otero County Processing Center (“Otero County”), and San 4 Diego County Detention Facility (“San Diego County”).153 225. The following are just a few examples from the DDRs, HRW reports, 5 6 and DRC reports that illustrate the harms caused by delays and lack of access to 7 medical care in Detention Facilities. 226. On April 13, 2017, Sergio Alonso Lopez died from an upper 8 9 gastrointestinal bleed while detained at Adelanto.154 The DDR found that Mr. 10 Lopez never received a response to his sick call requests within 48 hours unless he 11 was already scheduled for a follow-up appointment.155 He also waited more than 12 four weeks to see a provider after laboratory tests showed abnormal results in 13 February 2017.156 As a result, “provider consideration of further testing and 14 treatment was delayed.”157 227. On April 6, 2015 Raul Ernesto Morales-Ramos died at Adelanto of 15 16 organ failure with signs of widespread gastrointestinal cancer, which went 17 undiagnosed despite two and a half years of Mr. Morales-Ramos’ complaints about 18 gastrointestinal issues at Theo Lacy and Adelanto.158 19 20 21 22 23 24 25 26 27 28 153 Human Rights Watch, Am. Civil Liberties Union, National Immigrant Justice Center & Detention Watch Network, Code Red: The Fatal Consequences of Dangerously Substandard Medical Care in Immigration Detention, at 15, 19, 25, 46 (June 2018), https://www.hrw.org/sites/default/files/report_pdf/us0618_immigration_web2.pdf. 154 Sergio Alonso Lopez DDR, supra note 71, at 16. 155 Id. 156 Id. 157 Id. 158 Office of Professional Responsibility, Office of Detention Oversight, Detainee Death Review – Raul Ernesto Morales-Ramos, at 1, 4–26 (“Morales-Ramos DDR”) https://www.ice.gov/doclib/foia/reports/ddr-morales.pdf. COMPLAINT - 68 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 79 of 210 Page ID #:79 228. On October 24, 2016, Olubunmi Toyin Joshua died of hypertensive 1 2 cardiovascular disease while in ICE custody at Rolling Plains.159 The DDR found 3 that Ms. Joshua experienced multiple delays or denials of treatment. Despite high 4 blood pressure readings on ten separate occasions, nursing staff failed to notify a 5 provider, in contravention of nursing protocol.160 After she was diagnosed with 6 anemia and anxiety, conditions that increased her risk of heart attack, she waited 7 two months before receiving iron supplements, and she never received anxiety 8 medication.161 Additionally, it took two weeks and three requests before she was 9 seen by a dentist on October 20, 2016, who found that she had gum abscesses and 10 broken teeth.162 These deficiencies resulted in part from inadequate staffing. An 11 independent medical expert found that “[i]t is difficult to imagine how the poor care 12 provided to her during her detention did not materially contribute to her death.”163 229. Third party reports are also replete with examples of delayed or denied 13 14 medical care. For example, the 2019 DRC report found that Adelanto staff waited 15 three months to provide the results of HIV and pregnancy tests to a woman who 16 was raped multiple times during her journey to the United States.164 230. Likewise, an asylum seeker from Cameroon detained at Imperial 17 18 Detention Facility (“Imperial”) waited over four months in extreme pain to have 19 20 21 22 23 24 25 26 27 28 159 Office of Professional Responsibility, Detainee Death Review – Olubunmi Toyin Joshua (2016) (“Olubunmi Toyin Joshua DDR”), https://www.ice.gov/doclib/foia/reports/ddr-Joshua.pdf. 160 Id. at 17. 161 Id. at 18. 162 Id. at 19. 163 Human Rights Watch, Am. Civil Liberties Union, National Immigrant Justice Center & Detention Watch Network, supra note 153161, at 33. 164 Disability Rights Cal., supra note 36, at 33. COMPLAINT - 69 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 80 of 210 Page ID #:80 1 several teeth pulled.165 Dental staff told her they could only remove the problematic 2 teeth, as opposed to providing other preventative care, because their contract 3 limited them to extractions.166 Furthermore, dental care staff at both Imperial and 4 Mesa Verde stated that no routine checkups or cleanings are provided to detained 5 individuals until they are detained for at least one year.167 6 231. An asylum seeker from India saw the dentist at Imperial due to 7 extreme pain in his mouth.168 He was given painkillers but was not treated for the 8 cause of pain.169 He was told by dental staff that he needs additional treatment, but 9 he has been waiting for treatment for two months. Every time he eats, his teeth hurt 10 him.170 232. An asylum seeker detained at Otay Mesa was repeatedly denied 11 12 treatment for severe back pain.171 Facility guards forced her to walk without a 13 mobility aid despite her continued complaints; she fell and hurt herself further, and 14 she now must use a wheelchair.172 233. Another detained individual at Otay Mesa complained of 15 16 hemorrhaging for over two months and was repeatedly ignored until she fainted.173 17 She was taken to the hospital, where she had a blood transfusion in the hospital 18 parking garage.174 19 20 21 22 23 24 25 26 27 28 165 Human Rights First, Prisons and Punishment: Immigration Detention in California, at 11 (Jan. 2018), https://www.humanrightsfirst.org/sites/default/files/Prisons_and_Punishment.pdf. 166 Id. 167 Id. 168 Id. at 12. 169 Id. 170 Id. 171 Id. 172 Id. 173 Id. 174 Id. COMPLAINT - 70 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 81 of 210 Page ID #:81 234. Yet another detained individual at Otay Mesa experienced pain in her 1 2 abdominal area for five months.175 She was finally taken to the hospital, in shackles, 3 for an ultrasound.176 The hospital told her she had uterine fibroids and needed to see 4 a gynecologist.177 Upon return to the detention center, she was given ibuprofen and 5 told to wait for an appointment.178 As of March 2019, she had been waiting two 6 months, despite complaining repeatedly to facility staff about vaginal bleeding.179 7 235. Another detained individual at Adelanto reported, “I write a request to 8 see doctor every day, but I haven’t been able to see one for six weeks[.] I’ve asked 9 for medicine, but the only thing they have given me is ibuprofen.”180 A detained 10 individual at Imperial requested emergency help because of a severe tooth pain.181 11 He saw a nurse who gave him some pain medication and was initially told he would 12 see a dentist later that day, but the patient did not actually see a dentist until four 13 days later.182 He was later diagnosed with a periodontal abscess, which, according 14 to an independent medical expert, could have spread to the rest of the body and 15 developed into sepsis if left untreated.183 The expert concluded that the detained 16 individual should have been seen by a dentist the same day he reported severe 17 pain.184 18 19 175 Id. at 11. Id. 177 Id. 178 Id. 179 Id. 180 Ken Silverstein, Death Valley: Profit and Despair Inside California’s Largest Immigration Detention Camp, Project on Government Oversight (Dec. 22, 2018), https://www.pogo.org/investigation/2018/12/death-valley-profit-and-despair-insidecalifornias-largest-immigration-detention-camp/. 181 Human Rights Watch & CIVIC, Systemic Indifference: Dangerous and Substandard Medical Care in U.S. Immigration Detention, at 57 (May 2017), https://www.hrw.org/sites/default/files/report_pdf/usimmigration0517_web_0.pdf. 182 Id. 183 Id. 184 Id. - 71 CASE NO. ______________ COMPLAINT 176 20 21 22 23 24 25 26 27 28 Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 82 of 210 Page ID #:82 236. The evidence set forth above and in the referenced reports show 1 2 Defendants’ long-standing and systemic failure to ensure that medical and mental 3 health care is timely provided in Detention Facilities across the country. Defendants 4 are well aware of these delays and denials of health care in their network of 5 Detention Facilities, but they have taken no effective steps to ensure that care is 6 timely provided to detained individuals. 7 B. Defendants Systemically Fail to Ensure Timely Access to Medically Necessary Specialty and Chronic Care. 8 237. Defendants have a policy and practice of systemically failing to 9 10 monitor and enforce requirements for timely access to medically necessary 11 specialty care, where the underlying condition requires the attention of a medical 12 specialist, or to chronic care, where the underlying condition requires ongoing 13 medical needs or diseases. 238. Defendants require ICE Health Service Corps approval of all 14 15 nonemergency requests for specialty care outside of the facility. Because the 16 Detention Facilities themselves do not employ medical specialists, this IHSC 17 approval process often results in lengthy delays and denials of specialty care. The 18 delays are not surprising because, according to a 2016 GAO report, Defendants 19 have no specific written clinical guidelines on which to base decisions on requests 20 for specialty care outside of a facility.185 239. Compounding the delays, on information and belief, Defendants 21 22 require that facilities make an appointment with an off-site provider before 23 receiving approval from IHSC, which risks cancellation of the appointment if IHSC 24 does not approve the request or fails to do so in a timely manner. These 25 appointments are particularly difficult to reschedule in many Detention Facilities in 26 rural areas, far from any providers of specialty medical care. 27 28 185 U.S. Gov’t Accountability Office, GAO-16-23, supra note 6970, at 18. - 72 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 83 of 210 Page ID #:83 240. On information and belief, Defendants often do not provide specialty 1 2 care for detained individuals that they believe may be deported soon. For example, 3 Gabe Valdez, the ICE Assistant Field Office Director (“AFOD”) at Adelanto, told 4 HRW that decisions on outside treatment can be affected by whether deportation is 5 imminent. He stated, “[t]imelines for approval exist,”186 explaining that a man who 6 needs dentures but who will be deported in three days will not get dentures. He 7 further stated decisions are made in consultation with ICE and with IHSC. Among 8 other problems with this policy, Defendants cannot always predict when a person 9 will be deported or released. Also, imminent departure dates do not obviate the 10 need to provide medically necessary care while in ICE custody. 241. The California Department of Justice issued a report in March 2019 11 12 finding a failure to thoroughly assess patients with chronic diseases at West County 13 Detention Facility in California. Referrals to specialty care were delayed up to 14 seven weeks.187 Likewise, a 2017 New York Lawyers for the Public Interest report 15 documented Hudson County staff’s frequent denials of chronic and specialty care, 16 including failures to provide specialty care to one detained individual suffering 17 from sickle cell anemia and to another experiencing complications from a 18 malfunctioning pacemaker.188 242. Delays from these policies have in many cases resulted in unnecessary 19 20 pain and suffering, permanent injuries, and death. For example, detained 21 individuals with known heart conditions are denied treatment by specialists; a 22 detained person with cataracts needing surgery was denied this treatment for a year, 23 24 186 25 187 26 27 28 Human Rights Watch & CIVIC, supra note 181193, at 70. Becerra, supra note 19, at 115–16. 188 New York Lawyers for the Public Interest, Detained and Denied: Healthcare Access in Immigration Detention, at 7–11 (February 2017), https://www.nylpi.org/wp-content/uploads/2017/02/HJ-Health-in-ImmigrationDetention-Report_2017.pdf. COMPLAINT - 73 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 84 of 210 Page ID #:84 1 causing her vision to greatly deteriorate; and detained individuals with obvious 2 mental health issues are not provided specialty care. 243. Defendants are deliberately indifferent to the serious risk of substantial 3 4 harm and injury to Plaintiffs from this systemic failure. The deficiencies in the 5 provision of specialty and chronic medical care at Detention Facilities have been 6 repeatedly documented, including, without limitation, in numerous DDRs, 7 government reports, and nonprofit reports. Nevertheless, Defendants have taken no 8 effective steps to mitigate them, exposing Plaintiffs and members of the Class to 9 substantial risk of serious harm. 244. These failures to provide timely specialty and chronic medical care are 10 11 routine. Defendants have taken no action to effectively monitor or ensure that 12 Detention Facilities provide constitutionally mandated chronic and specialty care. 245. These problems are systemic, occurring across Defendants’ network of 13 14 Detention Facilities, and are illustrated by the experiences of the Named Plaintiffs. 246. For example, Plaintiff Marco Montoya Amaya’s medical records 15 16 indicate that the Yuba County Jail intended to refer him to a neurologist for 17 treatment of apparent end-stage neurocysticercosis on April 23, 2018. On 18 information and belief, Mr. Montoya Amaya has still never seen a neurologist, 19 despite worsening symptoms consistent with a brain parasite, and despite his likely 20 need for intensive treatment for this potentially life-threatening parasite condition. 21 Neurocysticercosis, when untreated, carries significant risks of brain damage, 22 meningitis, seizures, inflammation of the spinal cord that can lead to paralysis, 23 swelling of the brain that can lead to blindness, irreversible cognitive and 24 psychiatric symptoms, and other complications that may be fatal.189 247. Plaintiff Jose Segovia Benitez has a heart condition that requires 25 26 specialty care. Due to Defendants’ failure to ensure he receives specialty care, Mr. 27 189 28 Parasites—Cysticercosis, Centers for Disease Control and Prevention, available at https://www.cdc.gov/parasites/cysticercosis/health_professionals/index.html. - 74 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 85 of 210 Page ID #:85 1 Segovia Benitez was hospitalized for several days for cardiac problems that may 2 have been avoided. Adelanto has entirely ignored several abnormal cardiology test 3 results while he has been in detention, despite his reports of intermittent chest pains 4 and several risk factors in his medical history. Specifically, in March 2018 and 5 again in January 2019, Mr. Segovia Benitez had an electrocardiogram (“EKG”) that 6 produced abnormal results; however, there was no apparent follow-up. 7 248. In April 2019, Mr. Segovia Benitez saw a doctor for chest pains, and 8 he was finally referred to a cardiologist and prescribed medication for his high 9 lipids. On information and belief, Mr. Segovia Benitez has not seen a cardiologist 10 through this referral, despite the urgency of this medical issue. Instead, Mr. Segovia 11 Benitez was seen by a cardiologist only during a cardiac emergency in July 2019; 12 however, since he was returned to Adelanto following that emergency, he has had 13 no follow-up cardiology care. 14 249. Plaintiff Salazar Artaga has repeatedly requested appropriate 15 medication and medical equipment for his cerebral palsy, a musculoskeletal and 16 developmental disorder. These included, for example, requests on March 21, 17 March 29, and April 7, and April 16, 2019 for appropriate medications to manage 18 back, knee, and foot pain resulting from his cerebral palsy. When the chronic 19 medication he typically takes for pain, Gabapentin, was prescribed after a delay, it 20 was prescribed at a much lower dose than his usual regimen and only “as needed” 21 instead of on a scheduled basis, which contributed to poor pain control for several 22 weeks. 23 250. Plaintiff Edilberto García Guerrero, who is detained at Aurora, has 24 been suffering from chronic migraines for several months. He has submitted written 25 requests for medical treatment to treat these migraines and has not had a diagnostic 26 evaluation or received any treatment specific to these migraines. 27 251. Mr. García Guerrero has also requested medical care due to 28 deterioration of his vision over several months. His visual acuity was noted by a COMPLAINT - 75 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 86 of 210 Page ID #:86 1 medical staff employee at Aurora in mid-December 2018, although visual acuity 2 tests merely note the general performance of a person’s vision and do not alone 3 have significant medically diagnostic value. His vision was not evaluated by an 4 optometrist until months later, in June 2019. Mr. García Guerrero still has 5 diminished vision and has not been fitted for glasses. 6 252. In addition, Mr. García Guerrero has noted moving black spots in his 7 left eye, as well as a burning sensation since around the time he was attacked by 8 other detained individuals in spring 2019, diminishing his vision in his left eye. He 9 has still not seen a specialist for a diagnostic evaluation or for treatment. 10 253. Mr. García Guerrero has diminished hearing and persistent pain in his 11 left ear. He has been experiencing these symptoms since spring 2019 and 12 complained to medical staff of this ongoing issue. He filed a medical request in 13 May 2019 and previously complained about the pain and diminished hearing to 14 facility staff. Mr. García Guerrero still has not seen a medical professional to 15 diagnose or treat his ear issues. 16 254. Mr. García Guerrero had orthopedic surgery on his right ankle around 17 six ago after he was injured prior to detention. At that time, hardware was placed in 18 his bone. While in ankle shackles in ICE custody at the Aurora facility, Mr. García 19 Guerrero fell, injuring that same right ankle. His ankle has been swollen and very 20 painful in the several months since his fall. Mr. García Guerrero saw an orthopedic 21 specialist at the hospital in the spring of 2019. This specialist recommended 22 surgical intervention to fix his ankle. Mr. García Guerrero has still not had surgery, 23 although, on information and belief, he may have very recently been scheduled for 24 surgery. The facility provided him with a plastic ankle brace, and had long 25 informed him that the surgery would not be scheduled because it was “elective.” 26 255. Plaintiff Alex Hernandez has a torn rotator cuff in his right shoulder. 27 He has had this injury for several years, causing Mr. Hernandez persistent and 28 severe pain on a daily basis. When he was transferred to ICE custody, he was COMPLAINT - 76 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 87 of 210 Page ID #:87 1 detained at Mesa Verde. Mr. Hernandez had a magnetic resonance imaging 2 (“MRI”) while detained at Mesa Verde, which led to diagnosis of his torn rotator 3 cuff. An orthopedic surgeon recommended surgery to repair his shoulder. Instead of 4 scheduling the surgery, ICE transferred him two weeks after the doctor 5 recommended surgery. 6 256. In or around October 2017, Mr. Hernandez was transferred to Otay 7 Mesa. His medical records, however, were not transferred, and he had to begin the 8 process of getting treatment for his torn rotator cuff from the beginning, despite 9 reporting the previous tests and recommendations to the medical staff at Otay Mesa. 10 He had an MRI in late November 2017 and a CT scan in January 2018; these tests 11 confirmed the same diagnosis he received at Mesa Verde—that Mr. Hernandez had 12 a torn rotator cuff. He received physical therapy and received cortisone shots that 13 temporarily helped, but the pain and limited range of motion persisted. Finally, in 14 or around December 2018, orthopedic surgeon he saw at Otay Mesa recommended 15 surgery. 16 257. Shortly after he was recommended for surgery a second time, Mr. 17 Hernandez was transferred yet again—this time to Etowah on or around December 18 12, 2018. Again, his medical records were not transferred with him and he had to 19 sign a consent form for Etowah to receive the records, even though he was still in 20 ICE custody. For the third time, he had to restart the diagnostic process to receive 21 treatment for his shoulder. Yet again, he had to have another MRI, despite the two 22 previous recommendations for surgery based on two previous MRIs. He had to wait 23 approximately three months before he was able to see an off-site specialist for his 24 shoulder. The orthopedic surgeon recommended surgery in late April 2019, but it 25 has yet to be scheduled, and Mr. Hernandez has not received any information as to 26 when he will be able to have the operation. As a result, he continues to experience 27 severe pain in his shoulder and has a limited range of motion. He fears that his 28 injury will worsen due to the lack of treatment. COMPLAINT - 77 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 88 of 210 Page ID #:88 1 258. In addition to his torn rotator cuff, Mr. Hernandez experiences 2 persistent pain in his right hip and both legs and feet that impedes his ability to 3 stand for more than about fifteen minutes and limits his mobility. Mr. Hernandez 4 saw an orthopedic surgeon in Otay Mesa to treat this medical issue, and he had to 5 restart this treatment as well when he was transferred to Etowah. Mr. Hernandez is 6 in near constant pain due to the inflammation in his hip and his feet. He was 7 recently told that he will not receive treatment for his hip and leg pain until after he 8 has had surgery for his shoulder, which has yet to be scheduled, to Mr. Hernandez’s 9 knowledge. 10 259. Mr. Hernandez is also diagnosed with Barrett’s Esophagus, which 11 places him at higher risk of esophageal cancer. To monitor this condition, he was 12 receiving regular endoscopies not more than every three years. His last endoscopy 13 was a year before he was in ICE custody. He has reported this condition and the 14 need for his endoscopy to monitor his condition. It has been nearly four years since 15 he had his last endoscopy. 16 260. Plaintiff Aristoteles Sanchez Martinez has diabetes. His blood sugar 17 levels have consistently been dangerously high since entering ICE custody. Prior to 18 being in ICE detention, Mr. Sanchez Martinez’s diabetes was being managed, but it 19 has progressively worsened since being in ICE custody. There have been no 20 meaningful efforts made to control his blood sugar, such as changing his diet, 21 significantly increasing his insulin dosage, or changing the type of insulin he 22 receives. 23 261. Mr. Sanchez Martinez has experienced delays and denials in receiving 24 his daily insulin shots due to the lack of custody staff to escort him to medical. 25 Twice a day, Mr. Sanchez Martinez must have his blood sugar checked and receive 26 insulin based on his blood sugar. However, due to inadequate staffing, he rarely 27 receives his insulin shots on time, and sometimes not at all, putting him at risk of 28 life-threatening situations daily. COMPLAINT - 78 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 89 of 210 Page ID #:89 1 262. Since November 2018, Mr. Sanchez Martinez has missed at least 11 2 insulin shots. On numerous other occasions, he was delayed in receiving his insulin, 3 and thus at risk of missing a meal. The denials he experienced in receiving his 4 insulin shots have contributed to his uncontrolled diabetes, which in turn has 5 exacerbated the severity of his other medical conditions. 6 263. Additionally, staff are not well-trained as to Mr. Sanchez Martinez’s 7 medication administration; due to the high staff turnover, inexperienced and 8 untrained staff often do not know the proper protocols for his medication. To 9 reduce delays in medical care, Mr. Sanchez Martinez reminds staff daily to wake 10 him up for his morning insulin. Further, due to delays between being given his 11 insulin and being escorted to the cafeteria, Mr. Sanchez Martinez often does not 12 receive his meals immediately after receiving insulin. Delays in receiving his meals 13 after insulin shots leave Mr. Sanchez Martinez vulnerable to hypoglycemic events. 14 264. Further, Mr. Sanchez Martinez’s history of high blood sugar levels 15 indicates that he requires a doctor monitoring his kidneys to prevent kidney 16 damage. His medical records contain no documentation of such monitoring. 17 Similarly, Mr. Sanchez Martinez has not had his annually required eye examination 18 necessary to monitor for diabetic retinopathy. 19 265. On December 26, 2018, Plaintiff Ruben Darío Mencías Soto fell in the 20 shower at Adelanto, and he has been in immense pain ever since. The day after his 21 fall, Mr. Mencías Soto was taken to the medical unit at Adelanto where staff did X- 22 rays on his back; about three weeks later, Mr. Mencías Soto received an MRI scan 23 on his back. In early February, Adelanto medical staff referred Mr. Mencías Soto 24 for a consultation with a neurologist to discuss a possible back surgery, pending 25 ICE approval. About two weeks later, an Adelanto doctor explained to Mr. Mencías 26 Soto that the discs in his back were dislocated and herniated, that he should stop 27 doing strenuous physical activities and exercising, and that he would know in two 28 weeks when a surgery would be scheduled. COMPLAINT - 79 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 90 of 210 Page ID #:90 266. Since his fall in December 2108, Mr. Mencías Soto has been in 1 2 significant pain. He cannot walk without assistance, and the pain in his back and leg 3 is constant and severe. Though he has complained multiple times of 10 out of 10 4 pain, medical staff have neglected to increase his pain relief medication or provide 5 him meaningful physical therapy. He did not receive pain medication besides 6 ibuprofen until about three months after his fall. 267. On May 10, 2019, more than five months after his fall, Adelanto staff 7 8 brought Mr. Mencías Soto to see a neurologist for the first time. After the 9 neurologist explained the relevant options, Mr. Mencías Soto opted for attempting 10 physical therapy and medication before surgery. However, since that meeting, Mr. 11 Mencías Soto has not received any physical therapy or new medication. In early 12 July 2019, Mr. Mencías Soto asked a nurse in Adelanto about the status of his 13 therapy or surgery, but the nurse responded that the medical staff was waiting for 14 ICE to approve his treatment. His extreme pain persists. 268. Defendants have knowingly selected to detain thousands of individuals 15 16 in these remote, rural locations, notwithstanding the paucity of medical providers 17 and the acute nature of many detained individuals’ medical needs. Defendants’ 18 reliance on rural Detention Facilities, through which many detained individuals are 19 transferred and where some spend months or years, poses a substantial risk of 20 serious harm to Plaintiffs and the Class. 269. This danger is known to Defendants. In 2016, the Health Services 21 22 Administrator at Stewart told an OIG inspector that because of the facility’s rural 23 location, there was a lack of community health care providers, mental health 24 treatment centers, ambulance service, and emergency care in the area around the 25 Detention Facility.190 Stewart is two hours and fifteen minutes from Atlanta, and 45 26 minutes from Columbus, Georgia. Detention Facilities like LaSalle, Rolling Plains, 27 190 28 Office of Inspector Gen., Office of Homeland Sec., FOIA Response No. 2018IGFO-00059, supra note 104, at 35. - 80 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 91 of 210 Page ID #:91 1 Pine Prairie ICE Processing Center, and Irwin are located even farther from major 2 population centers and therefore, on information and belief, suffer from similar 3 medical care scarcities. 270. As a result, one individual detained at Stewart in 2016 told an OIG 4 5 inspector that he waited for ten weeks just to have a chest X-ray taken.191 271. Another detained individual complained about serious medical 6 7 problems—a hernia and the inability to urinate due to some blockage—but reported 8 that he was not seen by an outside doctor for approximately nine days.192 272. Defendants have long known of, but nevertheless are deliberately 9 10 indifferent to, the serious risk of substantial harm and injury to plaintiffs and 11 members of the class resulting from confinement in detention centers in locations 12 without access to adequate medical and mental health care. 273. Between 2011 and 2019, DDRs documented Defendants’ failures to 13 14 provide timely access to specialty or chronic care at Detention Facilities across the 15 country, including Adelanto, Albany, Aurora, Elizabeth, Eloy, Essex County, 16 Houston, Krome, LaSalle, Otero, Port Isabel Detention Center (“Port Isabel”), Rio 17 Grande, South Texas, Theo Lacy, and Utah. A significant number of the death 18 reviews implicated these failures. 274. Sergio Alonso Lopez died in April 2017 due in part to heroin and 19 20 alcohol withdrawal, after medical staff at Adelanto failed to monitor and assess his 21 withdrawal.193 Mr. Lopez had been taking methadone for more than 17 years for 22 heroin withdrawal.194 Although a doctor diagnosed Mr. Lopez with opioid 23 dependence with withdrawal a day after Mr. Lopez’s arrival at the facility on 24 25 191 26 27 28 Id. at 24. Id. at 75. 193 Sergio Alonso Lopez DDR, supra note 71at 16. 194 Id. at 4. 192 COMPLAINT - 81 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 92 of 210 Page ID #:92 1 February 9, 2017, the doctor did not order recommended assessments and did not 2 order nurses to monitor Mr. Lopez during his withdrawal.195 275. The DDR for Mr. Lopez found numerous ways in which Adelanto 3 4 failed to provide timely, medically necessary specialty care for withdrawal, 5 including that the facility failed to act in accordance with standards governing 6 detoxification of chemically dependent detained individuals because medical staff 7 did not monitor and assess Mr. Lopez while he underwent withdrawal.196 276. On June 13, 2016, Luis Alonso Fino Martinez died while in ICE 8 9 custody at Essex County.197 The cause of death was listed as hypertensive and 10 atherosclerotic cardiovascular disease with congestive heart failure.198 The DDR 11 found that though Mr. Fino Martinez had a history of high cholesterol and insulin- 12 dependent diabetes and clinical guidelines call for the completion of an EKG for 13 patients with diabetes, facility staff never order an EKG for Mr. Fino Martinez, 14 despite multiple medical encounters during which one was mandated by clinical 15 guidelines.199 277. On March 17, 2016, Thongchay Saengsiri died while detained at the 16 17 LaSalle Detention Center in Jena, Louisiana.200 His cause of death was listed as 18 hypertensive atherosclerotic cardiovascular disease with emphysema and obesity.201 19 Mr. Saengsiri suffered from worsening symptoms of congestive heart failure for 20 most of the 15 months he was at the facility, including fainting, swelling, anemia, a 21 195 22 23 24 25 26 27 28 Id. at 11–12. Id. at 16. 197 Office of Professional Responsibility, Detainee Death Review – Moises TinoLopez, at 1 (“Moises Tino-Lopez DDR”) https://www.ice.gov/doclib/foia/reports/ddr-Tino.pdf. 198 Id. 199 Id. at 5, 6, 8, 21. 200 Office of Professional Responsibility, Detainee Death Review – Thongchay Saengsiri, at 1, https://www.ice.gov/doclib/foia/reports/ddr-Saengsiri.pdf. 201 Id. 196 COMPLAINT - 82 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 93 of 210 Page ID #:93 1 nonproductive cough, and shortness of breath.202 These symptoms were largely 2 ignored by medical staff.203 The DDR found that in May 2015, an EKG report 3 indicated no assessment could be made because an artificial pacemaker prevented 4 measurement of the detainee’s heart rate and rhythm, but Mr. Saengsiri did not have 5 a pacemaker.204 In January 2016, his abnormal EKG results were never 6 interpreted.205 In February 2016, he did not receive a referral to a doctor or a re- 7 evaluation from a provider after complaining of a cough, shortness of breath, and 8 wheezing.206 In addition, the records indicated that on several occasions, Mr. 9 Saengsiri was supposed to be seen for follow-up visits or evaluations, but those 10 visits and evaluations did not occur.207 Two expert physicians reviewed the case on 11 behalf of HRW, concluding that his death likely could have been prevented with 12 appropriate care to manage his symptoms.208 The experts found that Mr. Saengsiri 13 demonstrated very clear symptoms of the new onset of congestive heart failure 14 from the early days of his detention, and that he needed aggressive cardiac 15 management, most likely including hospital admission.209 278. Raul Ernesto Morales Ramos died from gastrointestinal cancer in April 16 17 2015 while detained at Adelanto.210 In the two years in detention prior to his death, 18 he suffered from symptoms of undiagnosed cancer, including weight loss, body 19 aches, diarrhea, and rectal bleeding, but he was not seen by a specialist until a 20 month before his death, when it was too late. In March 2015, a nurse at Adelanto 21 202 22 23 24 25 26 27 28 Id. at 18–21. Id. 204 Id. at 19. 205 Id. 206 Id. 207 Id. 208 Human Rights Watch, Am. Civil Liberties Union National Immigrant Justice Center & Detention Watch Network, supra note 153161, at 19. 209 Id. 210 Raul Ernesto Morales-Ramos DDR, supra note 158, at 23. 203 COMPLAINT - 83 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 94 of 210 Page ID #:94 1 noted that Mr. Morales Ramos had a distended abdomen but she “did not detect a 2 mass or protrusion.”211 Four days later, he was seen by a doctor who stated that Mr. 3 Morales Ramos had “the largest [abdominal mass] she ha[d] ever seen in her 4 practice,” which was “notably visible through the abdominal wall.”212 279. Based on the doctor’s findings and referrals, Mr. Morales Ramos was 5 6 scheduled for a colonoscopy, which did not occur until about one month later.213 7 During the colonoscopy, he began to experience abdominal bleeding after the 8 doctor attempted to remove “a huge rectal mass.”214 He was transferred to the 9 hospital and died three days later.215 280. The evidence set forth above demonstrates a systemic failure to ensure 10 11 that necessary chronic and specialty care is timely provided at Detention Facilities. 12 These delays and denials persist because of Defendants’ failure to adequately 13 monitor, oversee, and administer their facilities. 14 C. Defendants Systemically Fail to Ensure That Care is Provided by Trained or Qualified Personnel. 15 281. Defendants have a systemic policy and practice of failing to monitor 16 17 and ensure that Detention Facilities provide health care from trained and qualified 18 personnel. 19 282. Detained individuals throughout Defendants’ detention network 20 receive inadequate healthcare from providers untrained on basic protocols, as well 21 as from licensed practical nurses and other providers attempting to provide care 22 well outside their scope of licensure, often without the consultation of doctors. This 23 includes staff failing to properly respond to serious health events—like opioid 24 withdrawal, chest pain, and seizures—because of a lack of training and inadequate 25 211 26 27 28 Id. Id. at 24–25. 213 Id. at 29. 214 Id. at 30. 215 Id. at 32. 212 COMPLAINT - 84 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 95 of 210 Page ID #:95 1 protocols, staff ordering interventions that are contraindicated by individuals’ 2 symptoms, and staff not involving physicians in decision-making. 283. For example, an internal ICE memo identified five cases between 3 4 November 2017 and March 2018 in which ICE failed to follow withdrawal 5 guidelines for detained individuals who have alcohol or opioid withdrawal.216 Four 6 out of five cases lacked physician oversight.217 284. According to a 2011 OIG report entitled “Management of Mental 7 8 Health Cases in Immigration Detention,” OIG visited three facilities in which 9 nurses who were not trained in psychiatric mental health care were assigned to 10 administer psychiatric medication, communicate with mentally ill patients about 11 their medication and participation in recreation activities, and help to manage 12 acutely psychotic or aggressive detained individuals.218 285. Despite numerous government reports, non-governmental organization 13 14 reports, DDRs, and other documentation of this serious problem, Defendants have 15 taken no effective steps to ensure that health care personnel at Detention Facilities 16 are properly trained or qualified, exposing detained individuals to significant risk of 17 serious harm. 18 286. Detention Facilities’ reliance on untrained and unqualified personnel is 19 widespread, occurring at Detention Facilities across the country, and resulting from 20 21 22 23 24 25 26 27 216 Email to Matthew Albence, Acting Deputy Dir., U.S. Immigr. and Customs Enf’t, at 2 (Dec. 3, 2018), https://tyt.com/stories/4vZLCHuQrYE4uKagy0oyMA/688s1LbTKvQKNCv2E9bu 7h. 217 Id. 218 Office of Inspector Gen., Office of Homeland Sec., OIG-11-61: Management of Mental Health Cases in Immigration Detention (2011), https://www.hsdl.org/?view&did=6985. 28 COMPLAINT - 85 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 96 of 210 Page ID #:96 1 systemic deficiencies in Defendants’ oversight and monitoring practices and 2 policies. 287. For example, HRW’s 2017 report details substandard provision of 3 4 medical care by Defendant’s healthcare providers. The report found a pervasive 5 practice of vocational and practical nurses practicing outside of their scopes of 6 practice, without licensed practitioner and doctor supervision, at Imperial, Yuba 7 County, Eloy, and Laredo Detention Center (“Laredo”), causing grave injury to 8 detained individuals there.219 288. Plaintiffs have suffered significant harm resulting from treatment by 9 10 untrained or unqualified personnel. 289. On May 10, 2019, Plaintiff Melvin Murillo Hernandez told a nurse that 11 12 his heart was beating fast and his chest was hurting. Given Mr. Murillo 13 Hernandez’s allergy history, which included multiple hospitalizations while in ICE 14 custody, medical staff should have closely monitored his condition. Instead, the 15 nurse, who is not qualified to diagnose or treat individuals, told him the he was fine 16 and did not order any observation or relay the complaint to a doctor or nurse 17 practitioner. The following morning, Mr. Murillo Hernandez was found 18 unconscious in his cell and Mr. Murillo Hernandez once again went into severe 19 anaphylactic shock necessitating hospitalization. 290. Upon Plaintiff Aristoteles Sanchez Martinez’s arrival to Stewart, a 20 21 nurse forced him to choose between his back brace and his hernia belt. The nurse 22 was not qualified to discontinue his use of the back brace or hernia belt. Upon 23 information and belief, she did not consult with a provider before discontinuing Mr. 24 Sanchez Martinez’s use of the back brace. Both devices served different medical 25 purposes and Mr. Sanchez Martinez has been without his back brace since his 26 intake risking further injury to his back. 27 28 219 Human Rights Watch & CIVIC, supra note 181, at 25–26, 61–64, 67–68. - 86 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 97 of 210 Page ID #:97 1 291. On March 27, 2019, Plaintiff Salazar Artaga requested Risperidone (he 2 spelled it “Respodon”) because he had taken the medication previously and needed 3 it for a long-standing condition. L. Boone, LPN, noted that no referral or 4 appointment was needed, as Mr. Salazar Artaga had been seen the day before. But a 5 licensed practical nurse is not qualified to evaluate the need for a prescription for 6 anti-psychotic medication. Further, a denial of such medication to a patient with a 7 history of psychosis can put the individual at risk of self-harm. As a result of the 8 failure to escalate his request, Plaintiff Salazar Artaga developed hallucinations and 9 suicidal ideation requiring him to be put on suicide watch repeatedly. His requests 10 for refills of pain medication and a shower chair were similarly ignored by LPNs 11 without documented discussions with qualified medical providers, even though 12 such decisions are outside the scope of practice for an LPN. 13 292. After Adelanto staff caused Plaintiff Martin Muñoz to overdose by 14 giving him triple the amount of his prescribed insulin, Mr. Muñoz was never 15 evaluated by a doctor—despite the fact that such overdoses can lead to comas and 16 be fatal. Although nurses checked on Mr. Muñoz a few times, guards took over the 17 primary responsibility for checking on Mr. Muñoz’s wellbeing in the aftermath of 18 this overdose. 19 20 21 293. Defendants are aware of these deficiencies but have failed to take any effective measures to prevent them from recurring in the future. 294. For example, between 2011 and 2019, DDRs documented that 22 unqualified personnel provided health care at Detention Facilities across the 23 country, including Aurora, Brooks, Dodge County, Eloy, El Paso, Farmville, Port 24 Isabel, Rio Grande, San Bernardino County Detention Center (“San Bernardino 25 County”), and Utah County. In a significant number of the reviewed deaths, 26 unqualified personnel were involved in providing health care. 27 28 295. According to the DDRs, in some facilities, only half of the medical staff were trained in basic skills such as CPR and first aid. This lack of training for COMPLAINT - 87 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 98 of 210 Page ID #:98 1 medical staff severely increases the risk of fatalities for detained individuals in 2 emergency situations. Moreover, the nurses at many facilities lack proper medical 3 training for the types of medical conditions they encounter, especially for 4 emergency situations. 5 296. The DDRs also highlighted many instances of important medical 6 decisions being made by non-medical staff. On December 2, 2017, Kamyar Samimi 7 died at Aurora after inadequate care for opioid withdrawal.220 He was never seen by 8 a doctor.221 His DDR found that, despite Mr. Samimi’s “frequent and progressive 9 complaints related to symptoms of withdrawal, nurses administered less than 50% 10 of physician-ordered withdrawal medications . . . .”222 Nurses also failed to 11 consistently document signs of withdrawal or medication administration; to 12 correctly document orders; to perform nursing assessments, obtain vital signs, or 13 monitor Mr. Samimi’s weight loss; and to maintain Mr. Samimi’s safety through 14 fall prevention and injury assessments during fainting episodes. Additionally, 15 nursing notes “were brief and inadequate”223 and were not in standard format. On at 16 least two occasions, a nurse failed to call the physician “despite her observation of 17 [Mr. Samimi’s] serious clinical symptoms.”224 297. Additionally, nurses were never trained in opiate withdrawal, and so 18 19 never completed ordered withdrawal monitoring.225 20 21 22 23 24 25 26 27 28 220 Office of Professional Responsibility, Detainee Death Review- Kamyar Samimi, at 3 (2017) (“Samimi DDR”), https://bento.cdn.pbs.org/hostedbentoprod/filer_public/RMPBS%20PDFs/RMPBS%20News/2018-ICFO-47347.pdf. 221 Id. 222 Memorandum from Jennifer M. Fenton, Assistant Dir., U.S. Immigr. and Customs Enf’t, to Matthew Albence, Exec. Assoc. Dir., Enf’t and Removal Operations (May 22, 2018) at 3, available at https://bento.cdn.pbs.org/hostedbentoprod/filer_public/RMPBS%20PDFs/RMPBS%20News/2018-ICFO-47347.pdf. 223 Samimi DDR, supra note 220, at 32. 224 Id. at 29. 225 Id. at 31. COMPLAINT - 88 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 99 of 210 Page ID #:99 298. Overall, nurses “demonstrated a lack of understanding of opioid 1 2 withdrawal symptoms” and “failed to properly monitor [Mr. Samimi] as he 3 withdrew from opioids and to recognize his related life-threatening symptoms.”226 4 299. Olubunmi Toyin Joshua died in October 2016 of hypertensive 5 cardiovascular disease while detained at Rolling Plains.227 The DDR found that 6 although the facility had a hypertension protocol, the nurses did not follow that 7 protocol, presumably because they had not received sufficient training.228 One nurse 8 stated that he set the blood pressure threshold for provider notification 9 independently, rather than follow protocol.229 Additionally, a nurse who conducted 10 Ms. Joshua’s physical assessment lacked training to do so.230 300. On September 27, 2016, Moises Tino Lopez died while in ICE custody 11 12 at Hall County.231 The DDR found that the facility did not have a written, 13 formalized seizure protocol in place.232 Additionally, “staff reported inconsistent 14 understanding of procedures” for placing Mr. Tino on 15-minute status checks after 15 his first seizure on September 6.233 Independent experts for HRW concluded that 16 serious medical failures, including the fact that Mr. Tino’s repeated seizures failed 17 to prompt a high level of concern and attention from medical staff, likely 18 contributed to his death.234 19 20 226 21 227 22 23 24 25 26 27 28 Id. at 31. Olubunmi Toyin Joshua DDR, supra note 159, at 1. 228 Id. at 17. 229 Id. at 17. 230 Id. at 19. 231 Office of Professional Responsibility, Detainee Death Review – Moises TinoLopez (“Moises Tino-Lopez”), https://d1zbh0am38bx6v.cloudfront.net/wpcontent/uploads/2018/07/17044550/ddr-Tino.pdf. 232 Id. at 16. 233 Id. at 16. 234 Human Rights Watch, Am. Civil Liberties Union, National Immigrant Justice Center & Detention Watch Network, supra note 153161, at 30–3. COMPLAINT - 89 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 100 of 210 Page ID #:100 301. Raul Ernesto Morales Ramos died on April 6, 2015 at Adelanto, after a 1 2 doctor attempted to remove a large rectal mass that developed when Adelanto 3 medical staff neglected to treat Mr. Morales’ gastrointestinal cancer.235 The DDR 4 found that many facility medical staff cited “a high turnover rate among nurses [as] 5 a great concern,” and that “approximately 50 percent of ADF’s medical staff hires 6 are new graduates” with a “definite difference between their skills and those of 7 more experienced nurses.”236 In addition, the DDR found the facility deficient in 8 that it failed to conduct any formal skills training or require nurses to demonstrate 9 competency prior to conducting clinical assessments, and also that it failed to 10 provide comprehensive training and routine competency evaluations.237 302. On May 1, 2016, Igor Zyazin died of a heart attack while confined at 11 12 Otay Mesa.238 He was previously detained at the Emerald Correctional 13 Management San Luis Regional Detention Center (“San Luis”) in San Luis, 14 Arizona. On April 29, 2016, a nurse managed Mr. Zyazin’s acute chest pain by 15 administering nitroglycerin without a doctor’s order.239 Independent medical 16 experts for HRW found that this was dangerous and “a major breach of her scope of 17 license and one which requires reporting to the state board.”240 18 303. Another detained individual fell in the shower in February 2015 while 19 detained in ICE custody at the Yuba County Jail.241 He tore his ACL and may have 20 sustained a fracture.242 He requested medical care for his knee several times but 21 235 22 23 24 25 26 27 28 Morales-Ramos DDR, supra note 158, at 1. Id. at 37. 237 Id. 238 Office of Professional Responsibility, Detainee Death Review – Igor Zyazin, https://www.ice.gov/doclib/foia/reports/ddr-Zyazin.pdf. 239 Id. at 7–8. 240 Human Rights Watch, Am. Civil Liberties Union, National Immigrant Justice Center & Detention Watch Network, supra note 155, at 27. 241 Human Rights Watch & CIVIC, supra note 181, at 63 (internal citation omitted). 242 Id. at 63. 236 COMPLAINT - 90 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 101 of 210 Page ID #:101 1 only saw a licensed vocational nurse (“LVN”).243 His medical needs were outside 2 the scope of the LVN’s practice, and the nurse did not refer him to a doctor until his 3 fifth visit.244 He eventually had surgery, and collapsed two days later with shortness 4 of breath.245 The LVN who responded to his collapse failed to measure his 5 respiration or blood pressure, and did not contact the physician.246 He was at risk of 6 blood clot and pulmonary embolism, and failure to involve a physician presented a 7 major threat to Mr. Morales’s life.247 One independent medical expert stated, “It is 8 clear that the health care is delivered mostly by LVNs practicing independently. 9 They call the MD when they think it’s necessary, but unfortunately, they do not 10 have sufficient training and licensure to know when that is.”248 11 304. Regarding a woman who was detained at Eloy, independent medical 12 experts for HRW found multiple examples of her receiving inadequate care from 13 nurses when her symptoms required care from a nurse practitioner, a general 14 practice doctor, or a gynecologist.249 According to one expert, “There was a repeat 15 pattern of nurses making decisions they’re not qualified to make and little to no 16 oversight by nurse-practitioners or physicians, which is dangerous.”250 305. Marjorie Annmarie Bell complained of chest pain multiple times at 17 18 CoreCivic’s San Diego facility in California before dying of a heart attack in 19 February 2014.251 The DDR found that a nurse failed to follow the facility’s chest 20 pain guidelines on the day of her death by not calling 911 after Ms. Bell requested 21 243 22 23 24 25 26 27 28 Id. at 63. Id. at 63. 245 Id. at 64. 246 Id. at 64. 247 Id. at 64. 248 Id. at 63. 249 Id. at 67–68. 250 Id. at 68. 251 Office of Professional Responsibility, Detainee Death Review – Marjorie Annmarie Bell, https://www.ice.gov/doclib/foia/reports/ddr-bell.pdf. 244 COMPLAINT - 91 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 102 of 210 Page ID #:102 1 morphine for pain that would not go away.252 Several other nurses indicated that 2 they were unsure whether the facility had chest pain guidelines, or were unsure of 3 the guidelines’ contents.253 The DDR stated that it is critical that nurses receive 4 training and adhere to established guidelines.254 According to one expert who 5 reviewed this case on behalf of HRW, “on six separate occasions she informed 6 nurses that she was having chest pain, and on none of those occasions did a nurse 7 contact a physician or call an ambulance.”255 306. The examples set forth above reflect a systemic failure to ensure that 8 9 qualified and trained personnel provide health care at Detention Facilities, to which 10 Defendants are deliberately indifferent, resulting in a significant risk of substantial 11 harm to detained individuals. 12 D. Defendants Systemically Fail to Ensure Detained Individuals Receive Timely Emergency Health Care. 13 14 307. Defendants have a systemic policy and practice of failing to monitor 15 and ensure that Detention Facilities provide detained individuals with timely and 16 competent emergency healthcare. 308. Detention Facilities repeatedly fail to treat medical emergencies with 17 18 urgency by not timely calling 911, calling a correctional van rather than an 19 ambulance to transport the detained individual to the emergency room, or refusing 20 to take an individual to the hospital at all. Other deficiencies include refusals to 21 administer emergency care and inabilities to administer emergency care because of 22 missing equipment. 23 24 25 252 26 27 28 Id. at 22. Id. 254 Id. 255 Human Rights Watch & CIVIC, supra note 181, at 36. 253 COMPLAINT - 92 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 103 of 210 Page ID #:103 1 309. Detained individuals experience harm and unnecessary pain and 2 suffering as a result of these delays in emergency care. In a number of cases, these 3 delays have proven fatal. 4 310. Defendants are deliberately indifferent to the risk of harm and injury to 5 detained individuals from this systemic failure. Delays in providing emergency 6 treatment have been repeatedly documented, including without limitation in DDRs, 7 government reports, and reports by non-governmental organizations. Nonetheless, 8 Defendants fail to adequately administer, monitor, or oversee conditions in their 9 facilities—or institute meaningful changes to address the often-fatal delays in 10 emergency care that occur throughout their detention network—exposing Plaintiffs 11 and members of the Class to significant risk of serious harm. 12 311. Indeed, Defendants’ inadequate monitoring and oversight have 13 resulted in the placement of Detention Facilities in areas where emergency care is 14 essentially unavailable. According to OIG’s 2016 interview of a Health Services 15 Administrator, or HSA, at Stewart in Georgia, because of Stewart’s rural location, 16 “if there is a serious medical emergency, only a few community resources are 17 available; he recently had two local hospitals refuse to take a detainee with a 18 urology issue.” In addition, “there is an extreme shortage of ambulance services.” 19 312. Failure to ensure that competent and timely emergency care is 20 provided is a systemic problem that flows from Defendants’ deficient monitoring 21 and oversight. These failures place detained individuals at substantial risk of 22 serious harm in Detention Facilities throughout the country, as evidenced by the 23 following examples. 24 313. In September 2017, Plaintiff Martin Muñoz had an insulin overdose 25 when Adelanto staff administered more than triple his regular dose. An insulin 26 overdose can lead to a hypoglycemic coma—essentially a low-blood-sugar coma— 27 which can sometimes be fatal. Mr. Muñoz was taken to medical observation when 28 COMPLAINT - 93 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 104 of 210 Page ID #:104 1 Adelanto staff realized the mistake, and Adelanto staff wrote him a letter admitting 2 fault. 3 314. Mr. Muñoz has gone without insulin twice while at Adelanto. The first 4 time, in February 2019, his medications ran out and, because his doctor had not 5 timely refilled his medication, he went without insulin for six days. During that 6 time, he had no energy, his vision was blurry, and he experienced headaches. The 7 second time, in summer 2019, he did not receive insulin for ten days because staff 8 said it was not in the system for him. In spring 2019, Adelanto informed Mr. 9 Muñoz that it had run out of his blood pressure medication, and he did not receive it 10 for approximately two weeks. 11 315. While at Adelanto, on information and belief Mr. Muñoz has not 12 received a modified diet to accommodate his diabetes, and his front tooth has fallen 13 out due to the progression of his diabetes. 14 316. Plaintiff Jose Segovia Benitez, for whom Adelanto had a documented 15 history of abnormal EKG results, reported significant chest pain at around 4 PM on 16 July 3, 2019. He was first evaluated for potential medical care nearly seven hours 17 later, at around 11 PM; over an hour later, Adelanto staff recognized Mr. Segovia 18 Benitez required emergency care and called 911 to have him transported to a nearby 19 hospital. Mr. Segovia Benitez ultimately spent several days in the hospital. 20 317. Defendants are on notice of, but have failed to remedy, the substantial 21 risk of serious harm posed by the failure to ensure competent and timely emergency 22 care. For example, between 2011 and 2019, DDRs documented failures in the 23 provision of emergency medical care at Detention Facilities across the country, 24 including Adelanto, Aurora, Elizabeth, Eloy, Essex County, Houston, Farmville, 25 Port Isabel, Krome, Rio Grande, San Bernardino, South Texas, Stewart, Theo Lacy, 26 Utah, and York County Detention Center (“York County”). In a substantial number 27 of the reviewed deaths, Detention Facilities provided Defendants with untimely or 28 inadequate emergency care. Several of these DDRs state explicitly that detained COMPLAINT - 94 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 105 of 210 Page ID #:105 1 individuals could have survived if they had been provided with timely access to 2 emergency care. 318. The DDRs describe staff’s failure to treat detained individuals 3 4 experiencing medical emergencies with a sense of urgency. This is, in part, because 5 medical staff commonly fail even to recognize signs and symptoms of serious 6 medical conditions, resulting in deaths of detained people. Specific examples 7 include the following: 319. On July 10, 2018, Efrain De la Rosa died by suicide at Stewart.256 8 9 Earlier that day, Mr. De la Rosa told a social worker that he would die soon, yet he 10 was not placed on observation or given a higher level of care.257 Additionally, 11 responding nurses discovered that their medical bag was missing a defibrillator and 12 a working oxygen tank, which delayed attempts to revive Mr. De la Rosa.258 The 13 detention officer assigned to the medical unit did not hear the emergency call for 14 assistance.259 15 16 17 18 19 20 21 22 23 24 25 26 27 28 256 Office of Professional Responsibility, Detainee Death Review – Efrain Romero De La Rosa, https://www.ice.gov/doclib/foia/reports/ddrDeLaRosaEfrainRomero.pdf. 257 Robin Urevich, National Immigrant Solidarity Network, Reports: Lies, Chaos and Abuse at ICE Contractor Lockup, Capital & Main (Jan. 28, 2019), https://capitalandmain.com/reports-lies-chaos-and-abuse-at-ice-contractor-lockup; Letter from Lead Compliance Inspector, The Nakamoto Grp., to Assistant Dir. for Detention Mgmt. (May 3, 2018), https://www.ice.gov/doclib/facilityInspections/stewartDetCtrGA_CL_05_03_2018. pdf. 258 See, e.g., Robin Urevich, Newly Released Documents Reveal Mounting Chaos and Abuse at a Troubled ICE Detention Center, Fast Company (Jan. 29, 2019), https://www.fastcompany.com/90298739/newly-released-documents-revealmounting-chaos-and-abuse-at-a-troubled-ice-detention-center; Memorandum from Investigator, Camille Baptiste-Lowers, to Warden, Charlie Peterson (Aug. 6, 2018), CoreCivic General Counsel Office of Investigations Investigation Report Form (on file with Plaintiffs’ counsel). 259 Id. COMPLAINT - 95 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 106 of 210 Page ID #:106 320. On December 2, 2017, Kamyar Samimi died while in custody at 1 2 Aurora after his withdrawal symptoms progressively worsened to the point that a 3 nurse observed that he likely had liver failure. In separate encounter, a nurse stated: 4 “He’s dying.”260 Yet, rather than calling 911, medical staff assumed he was faking 5 his symptoms.261 321. On November 24, 2017, Mr. Samimi waited up to eleven hours to be 6 7 seen by a nurse, during which time he lost consciousness, vomited, and had 8 abnormally low oxygen saturation and an elevated heart rate. 9 322. On at least two occasions, nurses discovered that Mr. Samimi had not 10 eaten in days due to nausea; in the latter instance, he had collapsed in the hallway. 11 Their only response was to “educate” him on the importance of nutrition. 323. On November 30, Mr. Samimi appeared to have blood coming from 12 13 his mouth. The responding nurse ordered that Mr. Samimi be monitored and given 14 water, but the nurse did not notify a doctor that Mr. Samimi was bleeding, “which 15 was significant given his compromised condition.”262 324. On December 1, it took ten minutes for a nurse to respond to reports of 16 17 Mr. Samimi’s bizarre behavior and weakness, causing an officer to wonder “when 18 medical staff were going to come check on [Mr. Samimi].”263 When the nurse lifted 19 Mr. Samimi’s arm to take his blood pressure, he screamed and said it hurt so bad “I 20 just want to die.”264 The nurse told him to stop being difficult.265 Later, a nurse did 21 not respond until 75 minutes after Mr. Samimi was observed spitting up blood.266 22 23 260 24 25 26 27 28 Samimi DDR, supra note at 220, at 47. Id. 262 Id. 263 Id. at 43. 264 Id. 265 Id. 266 Id. 261 COMPLAINT - 96 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 107 of 210 Page ID #:107 325. When an officer asked why 911 was not being called, “neither nurse 1 2 responded.”267 Only after Mr. Samimi vomited blood and officers acted on their 3 concern did a Lieutenant order a call to 911. The nurse had not called 911 himself 4 because he did not think Mr. Samimi’s condition was a “super emergency.”268 326. The DDR found problems with the intake process for Mr. Samimi and, 5 6 specifically, the fact that the facility “failed to transfer [Mr. Samimi] to an 7 [emergency room] though he exhibited life threatening withdrawal symptoms in the 8 week following his intake.”269 Additionally, the facility doctor failed to answer or 9 return two phone calls during Mr. Samimi’s medical emergency. Overall, “[a]ll 10 officers were troubled by what they perceived was a lack of concern and care for 11 [Mr. Samimi] on the part of medical staff.”270 12 327. On November 25, 2016, Wenceslau Esmerio Campos died of 13 myocardial infarction with atherosclerotic cardiovascular disease after an officer 14 refused to call for emergency help, even at request of another officer.271 Mr. 15 Campos was detained at the South Texas facility.272 On November 23, he was 16 found vomiting, pale, sweating, experiencing chest pains, and holding his chest.273 17 The DDR describes the initial response on behalf of detention security personnel: 18 Officer [REDACTED] approached CAMPOS in his bunk, located towards 19 the front of the dorm near the officer’s station, and observed he was pale and 20 sweating, and held his hands to his chest. Officer [REDACTED] immediately 21 asked Officer [REDACTED] to call a medical emergency on his radio, 22 23 267 Id. at 47. Id. at 52. 269 Id. at 3. 270 Id. at 60. 271 Office of Professional Responsibility, Office of Detention Oversight, Detainee Death Review – Wenesclau Esmerio Campos, at 1 (“Esmerio-Campos DDR”), https://www.ice.gov/doclib/foia/reports/ddr-Campos.pdf. 272 Id. 273 Id. at 9. - 97 CASE NO. ______________ COMPLAINT 268 24 25 26 27 28 Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 108 of 210 Page ID #:108 1 telling him CAMPOS was having a heart attack, but Officer [REDACTED] 2 refused, stating the detainee was fine because he could walk around. Officer 3 [REDACTED] asked a second time, and Officer [REDACTED] again 4 refused, so Officer [REDACTED] asked for the radio to call the emergency 5 herself, but Officer [REDACTED] refused to give it to her. Officer 6 [REDACTED] completed two incident reports following CAMPOS’ death, 7 wherein he stated he did not call a medical emergency or provide the radio to 8 Officer [REDACTED] because he did not believe CAMPOS required 9 emergency attention.274 328. Due to the officer’s refusal to recognize Mr. Campos’ medical 10 11 emergency, an hour elapsed before he was taken to the hospital.275 Mr. Campos fell 12 into cardiac arrest during transport.276 Despite attempts to revive him and an 13 emergency surgery, Mr. Campos was pronounced dead two days later.277 14 329. On May 1, 2016, Igor Zyazin died of a heart attack while confined at 15 Otay Mesa after being transferred from San Luis in Arizona.278 The cause of death 16 was listed as hypertensive and atherosclerotic cardiovascular disease.279 The DDR 17 notes that, while at San Luis, Mr. Zyazin informed staff that he had a significant 18 medical history of heart disease and that he was experiencing symptoms of a heart 19 attack.280 Instead of sending him to the emergency room, an ICE officer decided to 20 transfer him to Otay Mesa, several hours away.281 Upon arrival at Otay Mesa on 21 April 29, Mr. Zyazin told a nurse that he was experiencing chest pain, but no 22 23 274 Id. Id. at 12. 276 Id. 277 Id. at 14. 278 Zyazin DDR, supra note 238. 279 Id. 280 Id. at 6. 281 Id. at 8. 275 24 25 26 27 28 COMPLAINT - 98 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 109 of 210 Page ID #:109 1 follow-up occurred.282 The next day he was seen by a doctor, who failed to 2 recognize that Mr. Zyazin had an event that may have been a heart attack.283 That 3 evening he was found unresponsive and attempts to resuscitate him failed.284 330. Two medical experts who reviewed Mr. Zyazin’s case on behalf of 4 5 HRW found that his death was likely preventable. On April 29, the San Luis 6 nurse’s management of Mr. Zyazin at each step was severely deficient, including 7 failing to inform a doctor or call 911. Further, by filling out a transfer note, the 8 nurse was erroneously stating that the patient was stable enough for transfer, 9 whereas sending him to the hospital for appropriate care could have saved his life. 10 331. On April 7, 2016, Rafael Barcenas Padilla died of bronchopneumonia 11 while in ICE custody at Otero County.285 On March 13, Mr. Barcenas was taken to 12 the medical unit with a fever of 104 degrees, a high pulse, and diminished oxygen 13 saturation in his blood.286 A key medication, albuterol, was ordered to help his 14 breathing, but the facility lacked the equipment to administer it due to depleted 15 medical supplies.287 Mr. Barcenas did not see a doctor for two days.288 When he 16 was finally seen by a doctor, the doctor decided to send him to the hospital.289 17 Instead of being sent by ambulance, Mr. Barcenas waited for two hours to be 18 transferred by correctional van.290 He was taken to the hospital, where his condition 19 declined until his death.291 20 21 282 Id. at 7. Id. at 8. 284 Id. 285 Office of Professional Responsibility, Office of Detention Oversight, Detainee Death Review – Rafael Barcenas Padilla, at 1 (“Barcenas Padilla DDR”). 286 Id. at 3–4. 287 Id. at 4. 288 Id. at 6–8. 289 Id. at 8. 290 Id. at 8–9. 291 Id. at 9–12. 283 22 23 24 25 26 27 28 COMPLAINT - 99 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 110 of 210 Page ID #:110 332. The DDR found the lack of necessary equipment in Mr. Barcena’s 1 2 case to be deficient medical care.292 Independent medical experts found 3 fundamental errors in Mr. Barcena’s medical treatment, concluding that proper care 4 may well have saved his life.293 The experts agreed that his low recorded oxygen 5 levels should have prompted immediate evacuation to a hospital.294 They also raised 6 concerns that he was sent to the hospital in a van instead of an ambulance.295 333. On December 24, 2015, Jose Manuel Azurdia-Hernandez died at 7 8 Adelanto. His cause of death was listed as cardiogenic shock, massive right 9 ventricular infarction, and severe ischemic heart disease. When he was found 10 vomiting in his cell on December 19, 2015, a nurse refused to treat him because she 11 “did not want to get sick.”296 Medical staff did not return to check on his welfare, 12 and officers had difficulty reaching the medical unit when they tried multiple times 13 to alert medical staff to his worsening condition. When Mr. Azurdia-Hernandez was 14 finally taken to the hospital, arriving two hours after others in the housing unit first 15 tried to alert facility staff to his condition, his heart was too damaged to be repaired. 334. The DDR found that facility staff failed to triage Mr. Azurdia- 16 17 Hernandez. Medical experts for HRW concluded that proper, timely care could 18 have saved Mr. Azurdia-Hernandez’s life, stating that “[t]ime is absolutely critical”, 19 and “[d]uring a heart attack, every minute counts.”297 Additionally, they found the 20 21 292 22 23 24 25 26 27 28 Id. at 13. Human Rights Watch, Am. Civil Liberties Union, National Immigrant Justice Center & Detention Watch Network, supra note 153, at 19–22. 294 Id. at 21. 295 Id. at 20–21. 296 Professional Responsibility, Office of Detention Oversight, Detainee Death Review- Jose Manuel Azurdia-Hernandez at 6–7 (2016) (“Azurdia-Hernandez DDR”), https://www.ice.gov/doclib/foia/reports/ddr-Azurdia.pdf. 297 Human Rights Watch, Am. Civil Liberties Union, National Immigrant Justice Center & Detention Watch Network, supra note 153161, at 17. 293 COMPLAINT - 100 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 111 of 210 Page ID #:111 1 nurse’s refusal to see Mr. Azurdia-Hernandez to be “an egregious nursing 2 decision.”298 3 335. In sum, Plaintiffs and the Class have suffered—and Plaintiffs and the 4 Class continue to be at substantial risk of serious harm—as a result of Defendants’ 5 failure to provide adequate and timely emergency care. Despite multiple reports 6 documenting these deaths and the deficient emergency care involved, Defendants 7 persist in their systemic failure to monitor or oversee the provision of emergency 8 care to those in their custody. 9 E. Defendants Systemically Fail to Ensure Adequate Physical and Mental Health Intake Screening. 10 336. At Detention Facilities across the country, Defendants fail to 11 12 adequately assess the physical and mental health needs of detained individuals 13 during intake, which leads to failure to identify and properly treat detained 14 individuals with such needs. Despite numerous reports documenting this failure at 15 multiple facilities, Defendants have taken no effective steps to ensure that detained 16 individuals receive appropriate health screening, exposing them to a significant risk 17 of serious harm. These problems continue to recur due to systemic deficiencies in 18 Defendants’ oversight and monitoring practices and policies. 337. For example, when Plaintiff Jimmy Sudney arrived at Adelanto, it took 19 20 over a week to see a doctor for an intake meeting, and that doctor asked only about 21 his mental health. When he arrived at Eloy, it took almost a month to have an intake 22 screening. Meanwhile, he went without medication that he requires daily to 23 stabilize his medical and mental health needs. 338. Despite Plaintiff Luis Manuel Rodriguez Delgadillo’s inability to self- 24 25 report serious mental health conditions upon intake at Adelanto, medical staff did 26 not make any efforts to secure his records or treatment plan from his treating 27 28 298 Id. at 15. COMPLAINT - 101 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 112 of 210 Page ID #:112 1 psychiatrist, even though she is located nearby in California. Even when Mr. 2 Rodriguez Delgadillo’s parents brought a letter from his prior psychiatrist to the 3 facility with a list of his medications, that list did not make it into his medical 4 records and, on information and belief, the letter was not conveyed to mental health 5 staff at Adelanto. Only recently, after Mr. Rodriguez Delgadillo wrote down his 6 medications with the help of his mother and took the list to mental health staff, did 7 he begin to receive his prior medications. He has had multiple acute psychiatric 8 episodes during this gap in continuity of care. 9 339. When Plaintiff Melvin Murillo Hernandez was transferred from 10 Tallahatchie to River, he informed intake staff at River that he was allergic to 11 peanuts, chocolate, and jam. Though the intake nurse at River noted the allergy, 12 medical staff did not ensure that he would receive food free of the allergens. As a 13 result, Mr. Murillo Hernandez went into life-threatening anaphylactic shock 14 requiring hospitalization three separate times over three months while at River. On 15 April 7, 2019, Mr. Murillo Hernandez was given a peanut butter and jelly 16 sandwich. As a result, his throat closed, he lost consciousness, and he was taken to 17 the local hospital emergency room. He was also hospitalized on May 5 and 6, 2019, 18 in response to anaphylaxis from his food allergies, and Mr. Murillo Hernandez 19 subsequently experienced at least two additional hospitalizations for anaphylaxis. 20 This failure to properly screen his medical issues and ensure appropriate referral 21 related to his severe food allergies put him Mr. Murillo Hernandez at risk of death. 22 340. Plaintiff Edilberto García Guerrero has a complex medical history. Yet 23 Aurora never requested Mr. García Guerrero’s previous medical records regarding 24 his right ankle, for which he received orthopedic surgery about six years ago, 25 despite him experiencing a new injury to this ankle while in ICE custody. 26 341. Plaintiff Salazar Artaga’s initial screenings at Florence, performed by 27 a nurse and social worker, detected no mental health issues. Two weeks later, on 28 March 26, 2019, he made a request for Risperidone, an anti-psychotic medication COMPLAINT - 102 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 113 of 210 Page ID #:113 1 he received previously. Mr. Salazar Artaga did not timely receive the medication, 2 and he ended up on suicide watch twice over the next month for banging his head 3 on the wall and auditory and visual hallucinations. He went without the medication 4 until he finally had a mental health evaluation on April 17, 2019. As a result, he did 5 not receive needed medication for over a month after he arrived at the facility. 342. The intake screening failures experienced by Plaintiffs are typical and 6 7 are known to Defendants. 8 343. For example, in 2009, DHS released a report entitled “Immigration 9 detention overview and recommendations,” which concluded that “[t]he current 10 mental health intake assessment is quite brief and does not lend itself to early 11 identification and intervention.”299 344. The report also concluded that, because ICE assigns detained 12 13 individuals to facilities prior to completing medical screening, detained individuals 14 with mental health disabilities are not always assigned to facilities where the 15 staffing, proximity to emergency care, and physical space are most conducive to 16 their conditions.300 345. Two years later, OIG published a report entitled “Management of 17 18 Mental Health Cases in Immigration Detention.”301 OIG reviewed intake forms for 19 85 detained individuals with mental health disabilities and found that only ten of 20 those forms included any notes relating to mental health observations during the 21 intake process.302 22 23 24 25 26 27 28 299 U.S. Immigration & Customs Enforcement, Dep’t of Homeland Sec., Immigration Detention Overview and Recommendations, at 25 (Oct. 6, 2009), https://www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf. 300 Id. at 27. 301 Office of Inspector Gen., Dep’t of Homeland Sec., OIG-11-62: Management of Mental Health Cases in Immigration Detention, at 22 (Mar. 2011), https://www.hsdl.org/?abstract&did=6985. 302 Id. COMPLAINT - 103 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 114 of 210 Page ID #:114 346. A 2016 GAO report found that, although detention standards require 1 2 facilities to conduct in-depth medical examinations within 14 days of arrival at a 3 facility, approximately a third of detained individuals surveyed stated that they had 4 not received those examinations.303 347. In 2016, a DHS OIG inspection of Stewart found staff shortages forced 5 6 the facility to operate against intake staffing policy.304 Staff also reported that 7 delays in getting transfer paperwork interfered with the timeliness of intake 8 screenings and classification.305 348. As a result of the systemic deficiencies in the intake screening process, 9 10 and Defendants’ failure to properly monitor, oversee, and respond to those 11 deficiencies, individuals in Detention Facilities across the country have been 12 subjected to inadequate medical and mental health intake screenings. 349. DDRs illustrate the ongoing harms of these deficiencies in the intake 13 14 screening process. 350. During Sergio Alonso Lopez’s intake interview at Adelanto on 15 16 February 10, 2017, a nurse noted that Mr. Lopez had hand tremors and fidgeted 17 during the screening, and the nurse determined that he was likely in withdrawal. 18 Although the intake screening form instructed that she should immediately notify a 19 provider and initiate an alcohol withdrawal assessment, she did not initiate the 20 assessment. Later that day, a doctor performed a physical examination of Mr. Lopez 21 22 23 24 25 26 27 28 303 U.S. Gov’t Accountability Office, GAO-16-231, Additional Actions Needed to Strengthen Management and Oversight of Detainee Medical Care, at 50 (Feb. 2016), https://www.gao.gov/assets/680/675484.pdf. 304 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-32, supra note 152, at 3-4; see also Office of Inspector, Gen., U.S. Dep’t of Homeland Sec., Adult Detention Oversight 16-047-ISP-ICE, https://www.oig.dhs.gov/sites/default/files/assets/FOIA/OIG_FOIA_StewartDetention-Center-Work-Papers.pdf. 305 Id. COMPLAINT - 104 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 115 of 210 Page ID #:115 1 without reviewing his previous medical records first. The DDR noted that this 2 “hinder[ed] the physician’s ability to ensure continuity of treatment.” As such, his 3 withdrawal from methadone was never listed on his “problem list,” which 4 hampered the ability of nurses to subsequently treat his withdrawal.306 On April 13, 5 2017, after a string of incorrect treatments, he died of internal bleeding.307 351. On June 2, 2016, Juan Luis Boch-Paniagua, while detained at LaSalle, 6 7 died of a gastrointestinal hemorrhage.308 Mr. Boch-Paniagua’s DDR found that he 8 received his intake health screening from an officer via an intake medical 9 questionnaire, but there was no documentation showing that the intake officer had 10 received necessary training to conduct a health screening. The intake officers also 11 failed to use interpreters at Mr. Boch-Paniagua’s intake and classification.309 12 Though Mr. Boch-Panigua reported his acetaminophen and ibuprofen allergy to 13 medical staff, his “problem list” was left blank, causing medical staff to 14 dangerously prescribe him 17 doses of acetaminophen and 50 doses of ibuprofen.310 15 352. On April 28, 2016, José Leonardo Lemus Rajo died of acute alcohol 16 withdrawal syndrome soon after being detained at Krome.311 His DDR identified 17 numerous deficiencies in the intake process. First, though Mr. Lemus Rajo reported 18 a history of daily heavy alcohol use, and that he was experiencing tremors as a 19 symptom of withdrawal, a nurse documented that he “did not observe tremors, 20 agitation, excessive sweating, bizarre or unusual behavior, or disorientation during 21 22 306 23 307 24 25 26 27 28 Id. at 17. Id. 308 Office of Professional Responsibility, Office of Detention Oversight, Detainee Death Review- - Juan Luis Boch-Paniagua at 18 (2016) (“Boch-Paniagua DDR”). 309 Id. at 29. 310 Id. at 28. 311 Office of Professional Responsibility, Office of Detention Oversight, Detainee Death Review- - José Leonardo Lemus Rajo at 1 (2016) (“Lemus Rajo DDR”), https://www.ice.gov/doclib/foia/reports/ddr-Lemus.pdf. COMPLAINT - 105 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 116 of 210 Page ID #:116 1 the encounter.”312 Second, a doctor consulted over the phone ordered vitamins and a 2 withdrawal assessment to be administered to Mr. Lemus Rajo, but the vitamins 3 were never given to Mr. Lemus Rajo, even though they “may have counteracted the 4 effects of malnutrition and slowed or arrested withdrawal aggression.”313 Third, Mr. 5 Lemus Rajo was kept in the intake area for over five hours, during which time “his 6 alcohol withdrawal symptoms progressed rapidly” and he did not receive any 7 medical monitoring,314 which the DDR called “highly risky.”315 A withdrawal 8 assessment was not conducted until approximately five and a half hours after Mr. 9 Lemus Rajo’s intake screening, and when it was finally administered, it showed 10 that he was experiencing severe tremors, anxiety, agitation, and hallucinations. 11 353. The DDR concluded that the facility “delayed [Mr. Lemus Rajo’s] 12 access to care by failing to conduct a baseline [withdrawal assessment] upon the 13 detainee’s acknowledged heavy alcohol use and report of experiencing tremors, 14 maintaining him in the intake area for a protracted period without medical 15 monitoring, and failing to give him vitamins immediately.”316 16 354. Two independent medical experts reviewing this case concluded that 17 the DDR raised serious unresolved concerns about the quality of care given to Mr. 18 Lemus Rajo during the intake process.317 One of those doctors stated, “They had 19 hours and hours to treat him. He was not treated until he got to the hospital. 20 Delaying treatment for over seven hours with someone with serious alcohol 21 withdrawal is a problem.” The other found, “Mr. Lemus reported very heavy 22 23 312 24 25 26 27 28 Id. at 8. Id. at 18. 314 Id. at 6. 315 Id. at 17. 316 Id. 317 Human Rights Watch, Am. Civil Liberties Union, National Immigrant Justice Center & Detention Watch Network, supra note 153, at 22–25. 313 COMPLAINT - 106 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 117 of 210 Page ID #:117 1 alcohol use which—very predictably—led to alcohol withdrawal.318 The failure of 2 the facility to administer medications to him promptly was significant.”319 355. Jose de Jesus Deniz-Sahagun died by suicide on May 20, 2015, at 3 4 Eloy.320 The agents who transported Mr. Deniz to the facility on May 18 notified a 5 nurse that he had attempted suicide the day prior and that he had behaved erratically 6 earlier in the day, including banging his head, but these behaviors were not 7 documented in Mr. Deniz-Sahagun’s medical record.321 During intake, Mr. Deniz- 8 Sahagun acknowledged his suicide attempt to the nurse.322 Yet, because the intake 9 nurse wrote that Mr. Deniz-Sahagun “reported no mental health history and 10 appeared stable,”323 the nurse referred him for a routine, rather than urgent, mental 11 health evaluation the next day. Before receiving a full mental health screening, Mr. 12 Deniz-Sahagun got into an altercation with facility staff, who placed him in 13 segregation without medical clearance.324 Mr. Deniz-Sahagun died by suicide the 14 next day.325 356. In short, intake procedures in Detention Facilities are slapdash, 15 16 incomplete, and omit critical details like pain assessments, medication regimes, and 17 gathering of medical records. The deficiencies with the intake procedures have been 18 repeatedly documented, including without limitation in government and nonprofit 19 reports and DDRs. Nevertheless defendants, with deliberate indifference, have 20 failed to take effective measures to address these deficiencies. 21 22 318 23 319 24 25 26 27 28 Id. at 24. Id. 320 Office of Professional Responsibility, Office of Detention Oversight, Detainee Death Review- - Jose de Jesus Deniz-Sahagun at 1 (2016) (“Deniz-Sahagun DDR”). 321 Id. at 2. 322 Id. 323 Id. at 31. 324 Id. at 32. 325 Id. at 24. - 107 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 118 of 210 Page ID #:118 F. Defendants Systemically Fail to Ensure Adequate Staffing of Medical and Mental Health Care. 1 2 357. Detention Facilities across the country are chronically and consistently 3 understaffed with medical and mental health care personnel. Despite numerous 4 reports documenting this, Defendants have taken no effective steps to ensure that 5 Detention Facilities have appropriate medical and mental health care staffing, 6 exposing detained individuals to significant risk of serious harm. 7 358. The staffing shortages are systemic and cause dangerous delays in the 8 provision of medical care, as well as treatment by unqualified personnel. The 9 shortages have been documented by Defendants’ own entities repeatedly, with one 10 DDR concluding that “[a]dequate staffing by medical professionals of appropriate 11 levels is critical to ensuring the healthcare needs of detainees are met in a timely 12 manner.”326 Nevertheless, this systemic practice of dangerous short-staffing 13 persists. 14 359. For example, at Adelanto, nursing staff are sometimes required to act 15 beyond their scope because of the unavailability of an attending physician. Plaintiff 16 Faour Abdallah Fraihat has twice experienced emergency episodes including sharp 17 chest pain, difficulty breathing, and an elevated heart rate. Both times, an Adelanto 18 physician assistant called a “code blue” and called for an ambulance because no 19 attending physician was available. Both times, Mr. Fraihat was admitted to the 20 hospital for several weeks. 21 360. When Mr. Fraihat meets with a doctor at Adelanto, the doctor sets a 22 timer for five to ten minutes. The doctor tells Mr. Fraihat that she is setting a timer 23 because “we have a lot of people in here.” 24 361. Plaintiff Luis Manuel Rodriguez Delgadillo sees a constantly shifting 25 cast of characters among the mental health providers at Adelanto and has not 26 27 326 28 Office of Professional Responsibility, Detainee Death Review – Lelis Rodriguez, at 12, https://www.ice.gov/doclib/foia/reports/ddr-rodriguez.pdf. - 108 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 119 of 210 Page ID #:119 1 formed a trusting treating relationship with any of them. For a concrete thinker like 2 Mr. Rodriguez Delgadillo, seeing a rotating series of providers in person and 3 through tele-psychiatry has profound implications for his ability to communicate 4 his mental health state and receive proper treatment. 362. Plaintiff García Guerrero has experienced the effects of short-staffing 5 6 at Aurora, where there is only one doctor on staff, despite a new contract in April 7 2019 increasing the facility’s capacity from approximately 900 to more than 1,400 8 beds. Plaintiff García Guerrero’s requests for medical attention have received even 9 slower responses since the expansion. 363. Defendants are well aware of the long-standing, systemic staffing 10 11 shortages at their facilities. 364. For example, in July 2019, four Colorado politicians visited Aurora 12 13 and reported that, in addition to a psychologist vacancy, senior positions in the 14 health unit, including the top two positions of Health Services Administrator and 15 deputy HSA, were vacant.327 365. On November 27, 2016, Raquel Calderon de Hidalgo became the 16 17 fifteenth person to die while in custody at Eloy in Arizona.328 Her cause of death 18 was a pulmonary embolism due to deep vein thrombosis.329 On November 23, 19 2016, an intake nurse recommended that Ms. Calderon de Hidalgo be seen by a 20 provider that same day, as she had recently suffered a leg injury and was still 21 22 23 24 25 26 27 28 327 Blair Miller & Russell Haythorn, Colorado’s Congressional Democrats Tour Aurora ICE Facility, Call for Changes, The Denver Channel (July 22, 2019) https://www.thedenverchannel.com/news/politics/colorados-congressionaldemocrats-tour-aurora-ice-facility-call-for-changes-and-its-closure. 328 Human Rights Watch, Am. Civil Liberties Union, National Immigrant Justice Center & Detention Watch Network, supra note 153161, at 36. 329 Office of Professional Responsibility, Detainee Death Review – Raquel Calderon De-Hidalgo, https://www.ice.gov/doclib/foia/reports/ddr-Calderon.pdf. COMPLAINT - 109 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 120 of 210 Page ID #:120 1 experiencing pain.330 The appointment was delayed until November 25, at which 2 point the scheduled physical exam did not occur, because Ms. Calderon de Hidalgo 3 had recently been quarantined for potential exposure to varicella and the nurse 4 practitioner was too busy to leave the clinic.331 Her physical exam was never 5 rescheduled.332 On November 26, Ms. Calderon de Hidalgo waited approximately 6 five hours at the clinic to see a provider for related issues, yet she was sent back to 7 her unit by an officer who erroneously believed she had been seen already.333 The 8 next day, Ms. Calderon de Hidalgo collapsed and had a seizure.334 She later died of 9 a blood clot that had developed from her leg injury.335 366. The DDR found that the facility failed to provide timely and 10 11 appropriate medical care and medical assessment to Ms. Calderon de Hidalgo, and 12 that although a registered nurse “identified [Ms. Calderon de Hidalgo] as a patient 13 requiring expedited provider attention . . . [Ms. Calderon de Hidalgo’s] first and 14 only contact with a provider was during her medical emergency, four days after her 15 arrival.”336 Two independent experts concluded that if a doctor had actually seen 16 Ms. Calderon de Hidalgo when she requested a visit several days before her death, 17 there may have been a different outcome, and that failure of a health provider to 18 examine her when she was referred as a high priority patient constituted a 19 dangerous and potentially fatal medical care practice.337 20 21 22 330 23 331 24 25 26 27 28 Id. at 3. Id. at 5. 332 Id. at 5. 333 Id. at 6–7. 334 Id. at 7. 335 Id. at 11. 336 Id. at 11. 337 Human Rights Watch, Am. Civil Liberties Union, National Immigrant Justice Center & Detention Watch Network, supra note 153161, at 37. COMPLAINT - 110 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 121 of 210 Page ID #:121 367. In June 2019, the American Immigration Council (“AIC”) and 1 2 American Immigration Lawyers Association (“AILA”) issued a complaint 3 regarding inadequate medical and mental health care at Aurora.338 Reiterating 4 concerns expressed in a 2018 complaint, which had yet to be addressed by ICE, this 5 complaint illustrated the ongoing problem of inadequate care given to detained 6 individuals.339 Specifically, the AIC and AILA complaint emphasized that the 7 recent expansion of Aurora has made conditions there measurably worse, with 432 8 beds added to the facility without sufficient staffing to manage the growing 9 population.340 10 368. According to a March 2019 complaint filed by Project South, 11 CoreCivic’s staffing levels were so low that immigrants at Stewart were forced to 12 request medical attention at four in the morning or receive none at all.341 369. In a communication signed by an ICE official on January 25, 2017,342 13 14 ICE noted it “urgently requires” on-site medical staffing support services at Stewart 15 and Berks County, and that the facilities were in “critical need of RN staffing to 16 sustain operations at each site.”343 The document also stated that Public Health 17 Service positions at Stewart were staffed at only 20% of the fill rate, and that 18 “ICE’s failure to sustain minimum RN staffing levels will require healthcare 19 20 21 22 23 24 25 26 27 28 338 Email from Am. Immigration Council & Am. Immigration Lawyers Ass’n, to Stewart D. Smith, Assistant Dir., ICE Health Servs. Corps., et al. (June 11, 2019) (on file with Plaintiffs’ Counsel). 339 Id. at 1. 340 Id. at 1–2. 341 Compl. For Declaratory and Inj. Relief at 5, Project South v. U.S. Immigr. and Customs Enf’t, No. 1:19-cv-895-APM (D.C. Mar. 29, 2019) ECF No. 3-1. 342 Justification for Other than Full and Open Competition, Ex. A to Compl. For Declaratory and Inj. Relief, Project South v. U.S. Immigr. and Customs Enf’t, No. 1:19-cv-00895 (ECF No. 1-4). 343 Id. at 1–2. COMPLAINT - 111 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 122 of 210 Page ID #:122 1 services to be reduced at each facility; endangering detainee and non-detainee 2 safety . . . .”344 370. In 2016 and 2017, researchers for the Women’s Refugee Commission 3 4 visited seven detention facilities in Texas, California, Arizona, and New Mexico.345 5 They found that the staffing for medical and mental health was inadequate.346 At 6 best, the research team observed a staffing ratio of roughly one mid-level provider 7 per 100 detained individuals, at Hutto Detention Center (“Hutto”).347 At worst, the 8 Joe Corley facility had one full-time physician and one full-time nurse practitioner 9 for over 1,500 people.348 In addition, all seven facilities had insufficient levels of 10 mental health care staffing.349 At Laredo, there was no full-time mental health 11 service provider.350 371. In 2011, OIG issued a report entitled “Management of Mental Health 12 13 Cases in Immigration Detention,”351 which followed a 2009 DHS report 14 documenting systemic issues related to mental health care, including inadequate 15 staffing. Focusing on 18 facilities staffed by the ICE Health Service Corps, the 16 report made the following relevant findings: (1) IHSC has “experienced persistent 17 vacancies in mental health positions which have raised concerns about the 18 effectiveness of provider care”; (2) vacancy rates in mental health positions at 11 of 19 344 20 21 22 23 24 25 26 27 28 Id. at 2. Women’s Refugee Comm’n, Prison for Survivors, the Detention of Women Seeking Asylum in the United States. (Oct. 2017), file:///C:/Users/ADiaz/Downloads/Prison-for-Survivors-REPORTFINAL%20(3).pdf. 346 Id. at 30, 31. 347 Id. at 30. 348 Id. at 31. 349 Id. 350 Id. 351 Office of Inspector Gen., Office of Homeland Sec., OIG-11-62: Management of Mental Health Cases in Immigration Detention (2011), https://www.oig.dhs.gov/assets/Mgmt/OIG_11-62_Mar11.pdf. 345 COMPLAINT - 112 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 123 of 210 Page ID #:123 1 the 18 facilities staffed with IHSC employees were 50% or more; (3) ICE failed to 2 allocate mental health staff in accordance with the needs of facilities—for example, 3 the only mental health staff allocated at two facilities was one social worker, even 4 though those facilities housed 76 and 59 detained individuals with mental health 5 disabilities; (4) to compensate for short-staffing, “facilities without a psychiatrist 6 must rely on other medical professionals qualified to prescribe any medications, 7 even though they may not be knowledgeable of specific psychiatric medications”; 8 and (5) some facilities were located in remote locations without access to third- 9 party providers of mental health care.352 372. According to that same report, “IHSC officials from headquarters and 10 11 field locations cited staffing shortages as a critical challenge. In addition, health 12 service administrators and clinical directors throughout IHSC expressed the need 13 for more mental health providers.”353 373. In 2016, OIG issued another Mental Health Staffing Report, 14 15 concluding that ICE continued to fail to attract and retain adequate qualified mental 16 health care providers, at least in part due to the “rural and remote” areas where 17 Defendants have elected to detain individuals.354 374. That same year, the HSA at Stewart told an OIG inspector that the 18 19 facility had “chronic shortages of almost all medical staff positions.”355 20 Specifically, Stewart at the time was staffed with only “18 of 25 Registered Nurses; 21 22 23 352 Id. at 1, 8, 11, 16, Id. at 8. 354 Office of Inspector Gen., Office of Homeland Sec., OIG-16-113-VR: ICE Still Struggles to Hire and Retain Staff for Mental Health Cases in Immigration Detention, at 2 (2016), https://www.oig.dhs.gov/assets/VR/FY16/OIG-16-113-VRJul16.pdf. 355 Office of Inspector Gen., Office of Homeland Sec., FOIA Response No. 2018IGFO-00059, supra note 104, at 34. 353 24 25 26 27 28 COMPLAINT - 113 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 124 of 210 Page ID #:124 1 8 of 11 Licensed Practical Nurses; 2 of 3 License Clinical Social Workers; no 2 Psychiatrists; and 1 of 2 Medical Doctors.”356 3 375. A 2017 report by HRW357 described the experience of Dr. John Rubel, 4 a clinical psychologist with decades of experience in the federal Bureau of Prisons, 5 who spent two years providing mental health services at Hutto Detention Center in 6 Texas. Dr. Rubel found a tremendous need for mental health care, but trying to 7 provide it at Hutto eventually posed an “ethical and moral dilemma”358 that led him 8 to leave. Dr. Rubel described the prevalence of trauma in the facility, which housed 9 more than 500 women, as “extremely high,” saying, “it’s not just a single event [for 10 these women], but multiple episodes of trauma.”359 Despite the great need, mental 11 health staff at the facility consisted of one to two full-time staff members and one 12 half-time staff member. Without more mental health staff, he said, it was 13 impossible to provide the comprehensive mental health services required under 14 IHSC policy.360 376. A 2017 Penn State Law report also found understaffing issues at Irwin 15 16 County Detention Center (“Irwin”). Although the facility’s website361 lists a 17 capacity of 1,201 individuals, the report found that these individuals had infrequent 18 access to only one doctor, who worked at the facility part-time.362 At Victorville 19 Federal Correctional Complex, ICE detained 1,000 individuals despite protestations 20 21 356 Id. Human Rights Watch & CIVIC, supra note 181. 358 Id. at 72. 359 Id. (internal citation omitted). 360 Id. 361 Our Locations, LaSalle Corrections, http://www.lasallecorrections.com/locations/georgia/irwin-county-detentioncenter/?back=locations. 362 Imprisoned Justice: Inside Two Georgia Immigrant Detention Centers, Penn State Law, at 47–48 (May 2017) https://projectsouth.org/wpcontent/uploads/2017/06/Imprisoned_Justice_Report-1.pdf. 357 22 23 24 25 26 27 28 COMPLAINT - 114 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 125 of 210 Page ID #:125 1 by the local facility employee union there that an existing medical staffing shortage 2 would cause some detained individuals to go without treatment.363 In 2018, a 3 former CoreCivic training officer at Otay Mesa testified in a wrongful death suit 4 brought by the estate of a former detained individual there that short-staffing 5 hindered officers’ ability to notice when detained individuals required medical care 6 and a referral to the medical unit.364 377. The systemic deficiencies in staffing at Detention Facilities, and 7 8 Defendants’ failure to address those deficiencies, have put detained individuals 9 across the country at significant risk of serious harm. 378. On December 2, 2017, Kamyar Samimi died of methadone withdrawal 10 11 at Aurora.365 His DDR found that the facility had vacancies in key medical 12 personnel, including a Director of Nursing and a mid-level provider, for longer than 13 six months.366 The DDR also found a high turnover of staff and slow hiring 14 processes.367 379. Additionally, the absence of a midlevel provider contributed to the 15 16 facility’s failure to provide a complete initial physical assessment of Mr. Samimi.368 17 A doctor interviewed for the Medical and Security Compliance Analysis portion of 18 the DDR369 stated that, due to the vacancies, it was likely there were other detained 19 363 20 21 22 23 24 25 26 27 28 Samantha Michaels, Understaffed Federal Prison Is Taking in 1,000 Noncriminal Immigrants, and Even the Guards Are Protesting, Mother Jones, (June 15, 2018) https://www.motherjones.com/crime-justice/2018/06/understaffedfederal-prison-is-taking-in-1000-noncriminal-immigrants-and-even-the-guards-areprotesting/. 364 McGinnis Dep. at 162:24-164:7, Estate of Cruz-Sanchez by & through Rivera v. United States, No. 317-cv--00569-AJB--NLS, 2017 WL 9853749, ECF No. 67-1 (S.D. Cal. Oct. 4, 2017). 365 Samimi DDR, supra note 220. 366 Id. at 25. 367 Id. at 59. 368 Id. at 26. 369 Id. COMPLAINT - 115 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 126 of 210 Page ID #:126 1 individuals with significant medical problems whose initial examinations were 2 conducted by registered nurses.370 In addition, as a result of the facility’s lack of a 3 Director of Nursing or other nurse supervisor, “clinical supervision was inadequate 4 to assure adherence to provider orders and necessary and appropriate care.”371 380. Moises Tino Lopez died in September 2016 while detained at Hall 5 6 County Jail in Nebraska.372 The DDR identified a number of serious staffing 7 problems, including that the facility’s mid-level provider, a nurse practitioner, only 8 provided one to three hours of coverage per week, making it “a challenge to 9 conduct patient encounters and review telephone orders and diagnostic reports 10 . . . .”373 The facility physician “is located in Peoria, Illinois [and] provides no on- 11 site services or supervision of the [nurse practitioner] beyond remotely reviewing 12 her orders every three months.”374 The facility also lacked any on-site registered 13 nurses to provide administrative oversight of health care operations or clinical 14 supervision of licensed practical nurses.375 This staffing shortage likely led to 15 delays in evaluation and medical staff doing jobs for which they were not qualified, 16 as the facility improperly had a licensed nurse practitioner assess Mr. Tino 17 Lopez.376 18 19 20 21 370 22 23 24 25 26 27 28 Id. at 7. Id. at 63. 372 Office of Professional Responsibility, Detainee Death Review – Moises TinoLopez, https://d1zbh0am38bx6v.cloudfront.net/wpcontent/uploads/2018/07/17044550/ddr-Tino.pdf. 373 Id. at 14–15. 374 Id. at 14. 375 Id. at 15. 376 Human Rights Watch, Am. Civil Liberties Union, National Immigrant Justice Center & Detention Watch Network, supra note 153161, at 31. 371 COMPLAINT - 116 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 127 of 210 Page ID #:127 381. Igor Zyazin died in May 2016 while detained at Otay Mesa.377 He was 1 2 previously detained at the San Luis Detention Center. The DDR found that, 3 notwithstanding that “oversight of clinical decision making, and care is critical in a 4 correctional health care operation,” San Luis did not have a designated clinical 5 medical authority or physician coverage.378 6 382. Jose Manuel Azurdia-Hernandez died in December 2015 while 7 detained at Adelanto in California.379 The DDR found the facility had an ongoing 8 shortage of medical personnel, including leadership vacancies in the director of 9 nurses and the assistant HSA positions, five registered nurse vacancies, and a “high 10 turnover rate among nursing staff, which impacts delivery and quality of care.”380 It 11 also found that the facility had had two different HSAs since October 2014, the first 12 of whom moved to the assistant HSA position and was on administrative leave at 13 the time of the DDR.381 383. Raul Ernesto Morales-Ramos died in April 2015 while detained at 14 15 Adelanto.382 According to the DDR, “many members of [Adelanto’s] medical staff 16 [stated] that a high turnover rate among nurses is of great concern, particularly 17 given an increasing population of detainees with chronic health care needs.”383 The 18 facility has difficulty recruiting and retaining nurses, which necessitates hiring new 19 graduates with minimal experience; approximately 50 percent of Adelanto’s 20 medical staff are new graduates, with “a definite difference between their skills and 21 22 23 24 25 26 27 28 377 Office of Professional Responsibility, Detainee Death Review – Igor Zyazin, https://www.ice.gov/doclib/foia/reports/ddr-Zyazin.pdf. 378 Id. at 11. 379 Office of Professional Responsibility, Detainee Death Review – Jose Manuel Azurdia-Hernandez, https://www.ice.gov/doclib/foia/reports/ddr-Azurdia.pdf. 380 Id. at 16. 381 Id. at 16. 382 Raul Ernesto Morales-Ramos DDR, supra note 158. 383 Id. at 37. COMPLAINT - 117 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 128 of 210 Page ID #:128 1 those of more experienced nurses.”384 Additionally, two doctors at Adelanto 2 reported that there is a great variation in nursing skills among current nursing 3 staff.385 4 384. Lelis Rodriguez died in July 2013, shortly after being transferred from 5 the Brooks County Detention Facility to the Rio Grande Detention Facility, both in 6 Texas.386 The DDR determined that the Brooks County facility had significant 7 staffing problems, including that medical staff consisted of mostly low-level 8 medical personnel without appropriate clinical oversight, that a physician was 9 present only two hours per week, and that the facility lacked mental health staff, 10 physicians assistants, and nurse practitioners.387 The DDR noted that “[a]dequate 11 staffing by medical professionals of appropriate levels is critical to ensuring the 12 healthcare needs of detainees are met in a timely manner.”388 13 385. Another detainee, Federico Mendez Hernandez, died at this same 14 facility just one month earlier, in June 2013.389 The DDR determined that, although 15 there were more than 25,000 detainee admissions to Brooks County during 2013, 16 and although the facility had 63 chronic care patients, a physician was present at the 17 facility for only two hours each week.390 There were no physician assistants, nurse 18 practitioners, or mental health staff at the facility. Most medical care was provided 19 by low-level medical professionals, and oversight and clinical supervision of onsite 20 medical staff was limited to services that could be provided by the physician and 21 384 22 23 24 25 26 27 28 Id. Id. 386 Office of Professional Responsibility, Detainee Death Review – Lelis Rodriguez, https://www.ice.gov/doclib/foia/reports/ddr-rodriguez.pdf. 387 Id. at 12. 388 Id. 389 Office of Professional Responsibility, Detainee Death Review – Federico Mendez-Hernandez, https://www.ice.gov/doclib/foia/reports/ddrmendezhernandez.pdf. 390 Id. at 12. 385 COMPLAINT - 118 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 129 of 210 Page ID #:129 1 the HSA, who was a registered nurse.391 According to the DDR, “Nursing staff 2 reported they believe demanding work schedules and the heavy workload 3 contributed to the abbreviated clinical assessments and inadequate documentation 4 in the medical record of [Mr. Mendez Hernandez].”392 386. Pablo Gracida-Conte, held at Eloy in Arizona, died in October 2011.393 5 6 Many detained individuals at Eloy had extensive medical needs. For example, the 7 HSA stated that a quarter of the facility’s population had chronic care issues, and 8 that the number of detained individuals requiring higher levels of care was 9 increasing.394 According to a facility nurse, there were up to 110 sick call 10 encounters per day, and the facility was grossly understaffed to handle these 11 needs.395 A facility doctor reported that “she badly needs help.”396 Further, at the 12 time of Mr. Gracida-Conte’s death, mid-level practitioners were understaffed by 13 17%, nursing was understaffed by 25%, physicians were understaffed by 50%, and 14 the facility had no clinical director for four of the five years it had been open.397 15 ICE was fully aware of this problem; the Assistant Field Office Director, an 16 employee of ICE, stated that she had been aware of the staffing issues since 17 assuming her post in April 2011.398 18 387. Staffing shortages are persistent, systemic, and dangerous to detained 19 individuals throughout Defendants’ network of Detention Facilities. Despite being 20 on notice for years of these staffing shortages and the risks that they pose to people 21 22 391 23 392 24 25 26 27 28 Id. Id. 393 Office of Professional Responsibility, Detainee Death Review – Pablo GracidaConte, https://www.documentcloud.org/documents/2695513-Gracida-ContePablo.html#document/p1/a272669. 394 Id. at 13. 395 Id. at 14. 396 Id. at 13. 397 Id. at 13–14. 398 Id. at 14. - 119 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 130 of 210 Page ID #:130 1 in their custody, Defendants with deliberate indifference have failed to effectively 2 monitor or oversee this issue or take measures to eliminate it. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 G. Defendants Systemically Fail to Ensure Adequate Mental Health Care. 388. At Detention Facilities across the country, detained individuals receive substandard mental health care. Despite numerous reports documenting this fact, and litigation substantiating it, Defendants have taken no effective steps to ensure that detained individuals receive appropriate mental health care, exposing Plaintiffs and the Class to significant risk of serious harm. 389. The problem of substandard mental health care is systemic, occurring at Detention Facilities across the country, and continuing to occur due to systemic deficiencies in Defendants’ oversight and monitoring practices and policies. 390. Plaintiff Jimmy Sudney has mental health disabilities including PTSD from the earthquake in Haiti. Though he arrived at Eloy with a thirty-day supply of medication which had stabilized him while he was in prison, he was told he could not continue with that medication because “ICE has a different standard.” While detained at Eloy, Mr. Sudney had only one 30 to 60-minute session per month. At Adelanto, therapy further decreased to once every month or two, for five to fifteen minutes each session. He now has difficulty sleeping and regularly experiences flashbacks to violence and the earthquake in Haiti, especially after the recent Southern California earthquakes, after which his requests for mental health care went unanswered. 391. Plaintiff Hamida Ali had a history of schizophrenia and suicidal ideation prior to coming into ICE custody, but she was nonetheless housed in Aurora alone in a dormitory designed for dozens of people, leaving her completely isolated for approximately nine months. Her mental health symptoms grew worse, yet no steps were taken to move her or otherwise mitigate her symptoms. Upon information and belief, ICE made no attempt to obtain her prior treatment or 28 COMPLAINT - 120 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 131 of 210 Page ID #:131 1 custodial records. When she was transferred within ICE custody from Aurora to 2 Teller, medical staff at Teller did not receive any of her medical records from 3 Aurora. 4 392. Plaintiff Luis Manuel Rodriguez Delgadillo, who has had diagnoses of 5 schizophrenia and bipolar disorder for years, and who was taking medication and 6 feeling stable prior to his detention, has noticed his mental health significantly 7 decline since his detention at Adelanto in March 2019. He has been repeatedly 8 placed in medical observation after expressing suicidal and other harmful ideation, 9 and he has not received the same medication he was taking prior to his detention, 10 11 nor any of the therapy or other support services he had in place. 393. Plaintiff Alex Hernandez is diagnosed with PTSD, for which he was 12 receiving treatment prior to his placement in ICE custody. While detained at Mesa 13 Verde and Otay Mesa, he received psychotropic medication to treat his PTSD. 14 When Mr. Hernandez was transferred to Etowah in December 2018, his medication 15 to treat his PTSD was abruptly stopped without explanation. As a result, he 16 experienced night sweats, irritable and aggressive behavior, hypervigilance, 17 difficulty sleeping, feelings of hopelessness, and emotional numbness. 18 394. Mr. Hernandez did not meet with a psychiatrist until February 2019, at 19 least two months after he arrived at Etowah. He was then diagnosed with anti-social 20 personality disorder, without any basis for that diagnosis in his medical records. He 21 was not prescribed any medication to treat his mental health needs until on or 22 around July 9, 2019, and he did not begin receiving the medication until on or 23 around July 22, 2019. He has not received any therapy or counseling in Etowah. 24 395. Prior to detention, Plaintiff Jose Segovia Benitez received mental 25 health care through the Veteran’s Administration to manage his combat PTSD and 26 other mental health diagnoses. However, since being detained at Adelanto, his 27 combat PTSD has become unmanageable in a way that affects his ability to control 28 his emotions and anger. COMPLAINT - 121 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 132 of 210 Page ID #:132 1 396. Plaintiff Marco Montoya Amaya has also had inconsistent mental 2 health treatment, often at odds with the recommendations of the mental health 3 providers at the facilities in which he was detained. For example, when he was first 4 transferred to Mesa Verde in March 2019, a therapist indicated that he should 5 receive follow-up talk therapy in two weeks; however, despite his prior diagnoses 6 of Major Depressive Disorder and severe PTSD, he did not have another talk 7 therapy appointment until two months later, in May 2019. Rather than provide 8 assistance for his mental health conditions, a therapist repeatedly told Mr. Montoya 9 Amaya that she thought he would and should be deported. 397. Plaintiff Salazar Artaga has been hearing voices, experiencing visual 10 11 hallucinations, and grappling with suicidal ideation from the time he was a 12 teenager. He also suffers from severe anxiety that has manifested as panic attacks 13 in his time in detention. He requested mental health care early in his time at 14 Florence. He has been put on suicide watch at least two times for banging his head 15 against the wall and picking at his wounds in the midst of panic attacks. However, 16 the psychologist he saw did not refer him to a psychiatric provider until weeks later, 17 apparently suspecting that Mr. Salazar Artaga was seeking secondary gain. Even 18 now, when Mr. Salazar Artaga tells officers he is having a panic attack and hearing 19 voices, they often ridicule or ignore him and refuse to call for medical assistance. 20 398. These problems are not unique to Plaintiffs but are pervasive 21 throughout Defendants’ Detention Facilities. 399. For example, Disability Rights California’s 2019 report concerning 22 23 Adelanto399 identified many people at the facility with serious mental health needs 24 who received deficient mental health treatment. DRC found that the facility 25 responds harshly and in non-therapeutic ways to people in psychiatric crisis, such 26 as with the use of pepper spray or extreme isolation.400 27 399 28 Disability Rights Cal., supra note 36. Id. at 20. - 122 COMPLAINT 400 CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 133 of 210 Page ID #:133 1 400. Further, the “treatments” prescribed to detained individuals—even as 2 their mental health conditions declined—often consist only of breathing exercises, 3 physical exercise, and religious coping.401 401. DRC identified key deficiencies, including (1) cursory clinical contacts 4 5 and non-individualized treatment, (2) a lack of structured programming and 6 activities, (3) harmful institutional responses to patients in psychiatric crisis, and (4) 7 deficient medication management practices.402 402. Overall, the DRC report found that “Adelanto’s mental health care 8 9 system does not meet the needs of the detainee population, and facility conditions 10 are counter-therapeutic, all of which places people with mental health disabilities at 11 a significant risk of harm. We found that the conditions and practices at Adelanto 12 result in the abuse and neglect of detainees with mental health disabilities as 13 defined in federal law.”403 14 403. Defendants’ own reports and DDRs also substantiate these problems. 15 404. On March 28, 2017, Osmar Epifanio Gonzalez-Gadba died by suicide 16 after a three-month detention at Adelanto.404 He was evaluated by a doctor on 17 March 20 and 22, but the doctor was unaware that Mr. Gonzalez-Gadba had been 18 refusing psychiatric medications.405 Mr. Gonzalez-Gadba killed himself on March 19 22. The DDR found that Mr. Gonzalez-Gadba’s medical record did not contain a 20 consent form for psychotropic medications; that nurses did not use the Spanish 21 version of refusal forms for eight doses of psychotropic medications refused by Mr. 22 Gonzalez-Gadba, and did not document whether Mr. Gonzalez-Gadba was 23 counseled about the risks of refusing medication or whether efforts were made to 24 401 25 402 26 27 28 Id. at 20–21. Id. at 20. 403 Id. at 20 (internal citation omitted). 404 Office of Professional Responsibility, Detainee Death Review – Osmar Epifanio Gonzalez-Gadba, https://www.ice.gov/doclib/foia/reports/ddrGonzalez.pdf. 405 Id. at 15. COMPLAINT - 123 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 134 of 210 Page ID #:134 1 encourage medication compliance; and that nurses did not notify a physician or a 2 mental health provider after Mr. Gonzalez-Gadba’s medication refusals.406 405. On May 15, 2017, Jean Carlos Jimenez-Joseph died by suicide while 3 4 detained at Stewart.407 The Georgia Bureau of Investigation reported that Mr. 5 Jimenez-Joseph had been prescribed medication at a mental health facility before he 6 was detained by ICE, but facility staff did not give him the full dosage.408 On the 7 night of his death, Mr. Jimenez was seen jumping rope with his bedsheets and had 8 written “Hallelujah the Grave Cometh” in large dark letters on his cell wall.409 9 Despite being identified as a suicide risk, he was never placed on suicide watch, nor 10 was he provided the upward adjustment of his anti-psychotic medication he begged 11 for days before his death.410 12 406. Jose de Jesus Deniz-Sahagun died by suicide in May 2015 at Eloy.411 13 The DDR documents that, upon his arrival at the facility on May 18, 2015, a nurse 14 became aware that he had attempted suicide the day before and that he was still 15 fearful, but because Mr. Deniz-Sahagun did not express suicidal ideation to the 16 nurse, he was referred for a routine, rather than urgent, mental health evaluation.412 407. On May 19, a doctor diagnosed Mr. Deniz-Sahagun with delusional 17 18 disorder and placed him on suicide watch until May 26.413 The doctor also ordered 19 anti-psychotic and anti-anxiety medications; medical staff later decided not to 20 administer these medications, but this decision was not documented, and the doctor 21 406 22 23 24 25 26 27 28 Id. at 19–20, 22. Human Rights Watch, Am. Civil Liberties Union, National Immigrant Justice Center & Detention Watch Network, supra note 153161. 408 Id. at 40. 409 Id. at 53 (internal citation omitted). 410 Id. at 53. 411 Office of Professional Responsibility, Detainee Death Review – Jose De Jesus Deniz-Sahagun, https://www.ice.gov/doclib/foia/reports/ddr-denizshagun.pdf. 412 Id. at 2–4. 413 Id. at 88. 407 COMPLAINT - 124 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 135 of 210 Page ID #:135 1 was not notified.414 On May 20, a doctor removed Mr. Deniz-Sahagun from suicide 2 watch early because he believed that Mr. Deniz-Sahagun was no longer a danger to 3 himself.415 Less than 12 hours later, Mr. Deniz-Sahagun was found unresponsive in 4 his cell due to suicide.416 408. Overall, the DDR found that the mental health care and treatment 5 6 provided to Mr. Deniz-Sahagun was deficient for a number of reasons, including 7 the facts that the decision not to administer ordered medication to Mr. Deniz- 8 Sahagun was not documented, his doctor was not notified, and the doctor did not 9 perform a suicide risk assessment addressing all required factors before removing 10 Mr. Deniz from suicide watch.417 In addition, the facility had not developed a 11 suicide prevention plan, even though this was the third suicide at Eloy since April 12 2013, and the fifth since 2005.418 The DDR noted that the facility did not have any 13 on-call mental health providers.419 409. Two experts reviewed this case on behalf of HRW. One expert noted 14 15 that Mr. Deniz-Sahagun should have been thoroughly evaluated by a psychiatrist 16 and strongly considered for hospitalization.420 In addition, the experts had serious 17 concerns about the appropriateness of the doctor’s decision to downgrade Mr. 18 Deniz from suicide watch.421 410. On October 23, 2013, Tiombe Kimana Carlos died while detained at 19 20 the York County Prison in Pennsylvania. Ms. Carlos was diagnosed with 21 22 23 414 Id. at 14, 15. Id. at 17. 416 Id. at 20, 24–25. 417 Id. at 27, 28, 32. 418 Id. at 30. 419 Id. at 29. 420 Human Rights Watch & CIVIC, supra note 181, at 44. 421 Id. 415 24 25 26 27 28 COMPLAINT - 125 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 136 of 210 Page ID #:136 1 schizophrenia that, before her death, manifested in suicide attempts, behavioral 2 issues and mental health concerns, and extended stays in segregation.422 411. The DDR found that Ms. Carlos’s record lacked “documentation of a 3 4 treatment plan with measurable goals and objectives . . . to guide mental health 5 interventions over the period of detention.”423 The DDR also noted that, because 6 Ms. Carlos was a mental health chronic care patient for the duration of her 7 detention, and because she attempted suicide in August 2013, “a psychiatric alert 8 was appropriate for her, but none was generated.”424 412. Two independent experts for HRW reviewed her case and found that 9 10 subpar mental health care likely contributed to Ms. Carlos’ death.425 One expert 11 concluded that the mental health evaluation and treatment she received was 12 “woefully inadequate.”426 413. These examples illustrate Defendants’ systemic failure to ensure that 13 14 adequate mental health care is provided to people in their network of Detention 15 Facilities. Defendants with deliberate indifference have failed to properly monitor 16 and oversee this sad excuse of a system, leaving detained people experiencing 17 mental health issues exposed to substantial risk of harm, including death. 18 H. Defendants Systemically Fail to Ensure the Adequacy of Medical Records and Documentation. 19 414. Defendants have a policy and practice of failing to monitor and ensure 20 21 that Detention Facilities adequately maintain medical records. 415. Detention Facilities commonly fail to properly document information 22 23 gleaned in medical visits by detained individuals, sometimes failing to document 24 25 26 27 28 422 Office of Professional Responsibility, Detainee Death Review – Tiombe Kimana Carlos, ice.gov/doclib/foia/reports/ddr-carlos.pdf. 423 Id. 27. 424 Id. at 28. 425 Human Rights Watch & CIVIC, supra note 181, at 34. 426 Id. - 126 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 137 of 210 Page ID #:137 1 that visits happened at all. Further, when detained individuals are transferred 2 between Detention Facilities, their medical records and medications often do not 3 travel with them, preventing timely continuity of care. 4 416. Detained individuals experience harm and unnecessary pain and 5 suffering from interruptions of care resulting from inadequate medical 6 recordkeeping. Examples of the harm include suicide by individuals whose anti- 7 psychotic medications were not administered after transfer, as well as delayed 8 diagnosis of serious conditions like cancer. 9 417. Defendants are deliberately indifferent to the risk of harm and injury to 10 detained individuals that results from this systemic failure. Inadequate medical 11 records have been cited repeatedly, including without limitation in government 12 reports, DDRs, and nonprofit reports. Despite these reports, Defendants have failed 13 to effectively eliminate or mitigate inadequacies in the maintenance of medical 14 records, exposing Plaintiffs and members of the Class to significant risk of serious 15 medical harm. 16 17 18 418. The inadequate maintenance of medical records is ubiquitous in Detention Facilities across the country. 419. Plaintiff Alex Hernandez was incarcerated prior to his transfer to ICE 19 custody. Upon information and belief, ICE did not request his medical records, 20 which delayed his ability to receive appropriate treatment for his torn rotator cuff, 21 PTSD, and his hip, leg, and foot pain. Each time Mr. Hernandez was transferred 22 from one ICE facility to another, his medical records were not transferred with him, 23 which delayed his access to treatment and disrupted his care. For instance, upon his 24 transfer from Otay Mesa to Etowah, his medication for PTSD was discontinued 25 without reason and he had to restart the process to request treatment for his PTSD; 26 it took several months before his medication was resumed. 27 28 420. Mr. Hernandez had an eye exam on June 2, 2019, that was administered by a nurse. His medical records, however, contain no documentation COMPLAINT - 127 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 138 of 210 Page ID #:138 1 of a complete eye exam or the actual results of the vision test. He was told the 2 vision exam did not meet ICE requirements for him to see an optometrist, but there 3 is no way for medical staff or a doctor to review the exam because it is not in his 4 records. Given Mr. Hernandez’s other medical conditions, his blurry vision could 5 indicate other serious medical issues, but he has not been evaluated by a doctor. 6 Because of the lack of documentation, there is no recorded reason why Mr. 7 Hernandez’s vision exam did not meet ICE requirements to see an optometrist. He 8 was given a diagnosis of anti-social personality disorder, but there is no mention of 9 his previous PTSD diagnosis, and his medical records lack the basis for the 10 diagnosis of a personality disorder. 11 421. Very few of Plaintiff Marco Montoya Amaya’s records were 12 transferred with him when he transferred, while in ICE custody, from the Yuba 13 County Jail to the Mesa Verde ICE Processing Center. For example, on information 14 and belief, most of Mr. Montoya Amaya’s extensive mental health records from 15 Yuba County Jail were not sent to Mesa Verde, and that fact contributed to the over 16 two-month lapse in treatment for his mental health conditions once he arrived in 17 Mesa Verde. 18 422. Similarly, when Plaintiff Salazar Artaga was transferred to Florence 19 from the Maricopa County Jail, it does not appear that Florence request his medical 20 records. Because of that, the initial Florence screening did not detect any symptoms 21 of psychosis. Mr. Salazar Artaga noted in subsequent sick calls that he had been 22 previously diagnosed with schizophrenia in jail. Although the medical records 23 indicate that Florence staff planned to seek his jail medical records from the 24 Maricopa County Jail to confirm the diagnosis, it is unclear whether they ever 25 asked for or received these records. 26 27 423. These deficiencies are known by Defendants, but Defendants have not rectified them, leaving Plaintiffs and the Class at substantial risk of serious harm. 28 COMPLAINT - 128 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 139 of 210 Page ID #:139 424. For example, DDRs document inadequate maintenance of medical 1 2 records at a number of facilities, including Adelanto, Albany, Dodge, El Paso, Hall, 3 Houston, Hudson, Joe Corley, Otay Mesa, Otero, Rolling Plains, Theo Lacy, and 4 Utah. Experts concluded that these inadequate medical records contributed to a 5 substantial number of the deaths reviewed. 6 425. These DDRs demonstrate that many Detention Facilities fail to request 7 or receive records from other facilities that the detained individual may have cycled 8 through, including hospitals, off-site medical providers, and other Detention 9 Facilities, resulting in a lack of communication among medical providers. 426. Jose de Jesus Deniz-Sahagun died by suicide on May 20, 2015, at 10 11 Eloy.427 Even though Mr. Deniz-Sahagun was prescribed anti-psychotic and anti- 12 anxiety medications, medical staff opted not to administer these medications 13 without documenting their decision or contacting the physician.428 The DDR 14 concluded that several actions by staff were deficient, including this failure of 15 documentation.429 427. Similarly, Petra Albrecht, who had, among other conditions, fluid on 16 17 her heart and a gastrointestinal perforation, was transferred to Adelanto from Otay 18 Mesa, where she had an appointment to see a specialist.430 The Adelanto staff told 19 her that because she had moved to a new facility, they would “start over” with tests 20 21 22 23 24 25 26 27 28 427 Office of Professional Responsibility, Detainee Death Review – Jose de Jesus Deniz-Sahagun, https://www.ice.gov/doclib/foia/reports/ddr-denizshagun.pdf. 428 Id. at 15. 429 Id. at 27. 430 CIVIC & Detention Watch Network, Abuse in Adelanto: An Investigation Into a California Town’s Immigration Jail, at 15 (Oct. 2015), http://www.endisolation.org/wp-content/uploads/2015/11/CIVIC_DWN-AdelantoReport_old.pdf. COMPLAINT - 129 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 140 of 210 Page ID #:140 1 and medical care.431 Albrecht later became unconscious during a presumed heart 2 attack.432 428. Similarly, the 2017 HRW report documents significant gaps in 3 4 detained individuals’ health care records while in detention, including with one 5 individual detained at Etowah, diagnosed with stomach cancer after over a year of 6 medical complaints and spotty medical record-keeping.433 One medical expert 7 found opined the missing records might show a failure to timely address the 8 problems, leading to a delay of diagnosis for a likely fatal condition.434 429. These examples illustrate Defendants’ systemic failure to ensure that 9 10 adequate medical records are kept as to people in their network of Detention 11 Facilities. Defendants are aware that their network of Detention Facilities fails to 12 adequately maintain medical records but have not corrected this issue through 13 monitoring and oversight, resulting in detained individuals suffering substantial 14 harm and even death. 15 VII. 18 As a Result of Defendants’ Failure to Monitor and Oversee Segregation Practices at Detention Facilities, Conditions in Those Facilities Constitute Punishment and Subject Plaintiffs in Segregation and Members of the Segregation Subclass to Violations of the Fifth Amendment. 19 430. Plaintiffs Alex Hernandez, Jimmy Sudney, Hamida Ali, and Marco 20 Montoya Amaya (collectively the “Segregation Plaintiffs”) and the Segregation 21 Subclass challenge ICE’s systemic failure to ensure that Detention Facilities do not 22 improperly subject the Subclass to segregation in violation of the Fifth Amendment. 16 17 431. As with medical and mental health care, Defendants have sole 23 24 authority to select and contract with the facilities in which Segregation Subclass 25 members are detained. Defendants maintain centralized control of the standards, 26 431 27 432 28 Id. Id. 433 Human Rights Watch & CIVIC, supra note 181, at 56, 67, 77. 434 Id. at 77. - 130 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 141 of 210 Page ID #:141 1 policies, practices, and procedures applicable to segregation. Defendants likewise 2 have ultimate authority—and the legal obligation—to monitor those facilities and to 3 ensure that policies and practices concerning segregation satisfy constitutional 4 dictates. Yet, as detailed below, Defendants have systemically abdicated their duty 5 to ensure that segregation practices throughout the nationwide detention system 6 comply with the minimal requirements of substantive and procedural due process 7 under the Fifth Amendment. Indeed, despite numerous internal and external reports 8 alerting Defendants to systemic failures in ICE’s segregation system, Defendants 9 have refused to take any effective steps to remediate the improper use of 10 segregation throughout the country’s Detention Facilities. Accordingly, absent 11 intervention by this Court, individuals in the Segregation Subclass will continue to 12 be subjected to punitive conditions of confinement and face an ongoing and 13 substantial risk of serious harm. 14 432. Specifically, as a result of ICE’s failure to monitor and oversee 15 segregation in Detention Facilities, detained individuals in segregation are 16 subjected to unconstitutional policies, practices, and omissions, including but not 17 limited to: (1) confinement in conditions that are punitive, (2) exposure to a 18 substantial risk of serious harm, and (3) inadequate procedural protections 19 (collectively, the “Segregation Practices”). Both alone and in their totality, these 20 conditions violate the Segregation Subclass’s Fifth Amendment rights. 21 433. Organizational Plaintiffs ICIJ and Al Otro Lado have had to divert 22 resources, and have had their missions frustrated, as a result of the Segregation 23 Practices. 24 434. Plaintiffs Alex Hernandez, Jimmy Sudney, Hamida Ali, and Marco 25 Montoya Amaya have all been harmed and subjected to, and face the ongoing 26 possibility of being harmed and subjected to, constitutionally deficient segregation 27 as a result of Defendants’ failure to properly monitor and oversee Segregation 28 Practices at Detention Facilities. COMPLAINT - 131 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 142 of 210 Page ID #:142 A. 2 Defendants Violate the Fifth Amendment by Failing to Ensure That Civil Detainees in Segregation Are Not Subjected to Punitive Conditions of Confinement. 3 435. Under the Fifth Amendment, segregation conditions in civil Detention 1 4 Facilities may not rise to the level of punishment. 5 6 436. As set forth in detail below, Defendants fail to adequately monitor and oversee segregation practices in Detention Facilities. 7 437. As a result, detained individuals are subjected to the Segregation 8 Practices, which individually and collectively constitute punishment because they 9 are expressly intended to punish, are not reasonably related to a legitimate 10 governmental objective, and/or are excessive in relation to that objective. 11 438. In addition, segregation conditions in civil Detention Facilities cannot 12 be the same as or worse than those in a prison. As the Ninth Circuit explained, 13 “purgatory cannot be worse than hell.”435 14 439. Nevertheless, Defendants maintain a policy and practice of failing to 15 ensure that detained immigrants in segregation are not subjected to punitive 16 conditions. As a result, conditions in segregation throughout Detention Facilities 17 are indistinguishable from—and in some cases worse than—those in prison. Indeed, 18 detained individuals confined in segregation “are typically locked down for at least 19 22 hours a day, with limited access to recreation or contact with other human 20 beings. Depending on the restrictions, individuals in solitary can be limited or 21 outright denied access to phone calls, visitation, books or personal items, such as 22 photographs of loved ones.”436 23 24 25 435 Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004). Hannah Rappleye, Thousands of immigrants suffer in solitary confinement in U.S. detention centers, NBC News (May 20, 2019), https://www.nbcnews.com/politics/immigration/thousands-immigrants-suffersolitary-confinement-u-s-detention-centers-n1007881. 436 26 27 28 COMPLAINT - 132 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 143 of 210 Page ID #:143 440. ICE’s Directive 11065.1, “Review of the Use of Segregation for ICE 1 2 Detainees” (the “Segregation Directive”), characterizes disciplinary segregation as 3 punitive and administrative detention as nonpunitive.437 441. Yet ICE’s characterization draws a distinction without a difference. 4 5 Throughout the Detention Facilities, the conditions in both disciplinary segregation 6 and administrative detention are punitive in nature, and those punitive conditions 7 are materially the same throughout the Detention Facilities. Indeed, regardless of 8 the underlying basis for isolation, individuals subjected to both forms of 9 segregation are subjected to near constant isolation—for 22 or 23 hours per day—in 10 a closed cell; overwhelmingly denied outdoor recreation; restricted from 11 communicating with counsel, their families, and friends; frequently shackled when 12 they are outside their cell, regardless of disciplinary infractions; and denied access 13 to programming, telephones, commissary, personal effects, and law libraries, 14 among other restrictions. 442. The similarly punitive conditions in all forms of ICE segregation are 15 16 well-documented. For example, Penn State Law’s 2017 report found that at Stewart 17 and Irwin, “Detained immigrants report no difference between administrative or 18 disciplinary segregation; both are considered to be equally severe,” and both subject 19 individuals to the same draconian depravations of liberty.438 20 21 22 23 24 25 26 27 28 437 U.S. Immigration & Customs Enf’t, Directive No. 11065.1: Review of the Use of Segregation for ICE Detainees, at ¶ 3.1-3.2 (Sep. 4, 2013), https://www.ice.gov/doclib/detention-reform/pdf/segregation_directive.pdf. 438 Penn State Law, Imprisoned Justice: Inside Two Georgia Immigrant Detention Centers, at 36 (May 2017) https://projectsouth.org/wpcontent/uploads/2017/06/Imprisoned_Justice_Report-1.pdf. COMPLAINT - 133 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 144 of 210 Page ID #:144 443. Human Rights First’s 2019 report found that staff at three New Jersey 1 2 facilities confined individuals to their cells for at least 23 hours per day for 3 disciplinary segregation, as compared to 22 hours in administrative segregation.439 4 444. Likewise, a 2019 report on conditions at Adelanto concluded that 5 “[d]etainees are subject to prison-like solitary confinement, whether for disciplinary 6 or administrative reasons.”440 445. In fact, those confined to administrative segregation do not receive 7 8 greater protections from prolonged isolated confinement. For example, a 2017 DHS 9 OIG report “identified detainees who were held in administrative segregation for 10 extended periods of time without documented, periodic reviews that are required to 11 justify continued segregation.”441 12 446. For example, Plaintiff Alex Hernandez was placed in segregation for 13 over two weeks while he was detained at Mesa Verde for safety reasons. While he 14 was in isolation, he was not allowed out of his cell for any recreation. He did not 15 receive an opportunity to visit the law library or use the telephone to contact his 16 family or attorney. He was allowed out of his cell only to shower three times a 17 week. This isolation exacerbated Mr. Hernandez’s PTSD; he experienced 18 nightmares and was paranoid and hypervigilant while in isolation. He did not see a 19 mental health professional while in segregation. 20 447. Plaintiff Hamida Ali was placed in effective segregation for 21 approximately nine months when security staff at Aurora placed her alone in a 22 dorm designed for dozens of women. Ms. Ali has a documented history of 23 schizophrenia and suicidal ideation and attempts, all of which were exacerbated by 24 25 26 27 28 439 Human Rights First, Ailing Justice: New Jersey Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention, at 5 (Feb. 2018), https://www.humanrightsfirst.org/sites/default/files/Ailing-Justice-NJ.pdf. 440 Disability Rights Cal., supra note 36, at 18. 441 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-32, supra note 152, at 6. - 134 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 145 of 210 Page ID #:145 1 this placement. No steps were taken to ensure that this placement was appropriate 2 for someone with her mental health disability, and both mental health staff and ICE 3 officers informed Ms. Ali that there was nothing they could do about it, even after 4 she had attempted suicide. 448. Defendants’ abdication of any meaningful oversight of segregation 5 6 practices has allowed the operators of Detention Facilities to act with impunity in 7 imposing segregation. For example, the June 2019, DHS OIG report found that at 8 Adelanto and Essex, “detainees are placed in disciplinary segregation before the 9 disciplinary hearing panel finds the detainee guilty of the charged offense,” and that 10 the facilities erroneously recorded those placements as administrative segregation 11 placements.442 449. In a 2019 report detailing unannounced inspections at four detention 12 13 facilities, OIG raised concerns about overly restrictive segregation practices.443 At 14 Adelanto, Essex, and Aurora, individuals in disciplinary segregation were placed in 15 restraints when they were outside of their cells, despite ICE standards stating that 16 disciplinary segregation alone does not constitute a valid basis for the use of 17 restraints.444 At Essex, segregated individuals were strip-searched without 18 documented justification and without reasonable suspicion.445 Both Adelanto and 19 Essex failed to give segregated individuals proper recreation or out-of-cell time, 20 and individuals in disciplinary segregation at Adelanto were not permitted to 21 22 23 442 24 25 26 27 28 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG 19-47, supra note 97, at 5–6; Performance-Based National Detention Standards: Special Management Units, Section 2.12.II (U.S. Immigr. & Customs Enf’t 2011) (Revised Dec. 2016). 443 Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG 19-47, supra note 97, at 3. 444 Id. at 5. 445 Id. at 5–6. COMPLAINT - 135 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 146 of 210 Page ID #:146 1 shower.446 Overall, OIG concluded that these practices “violated standards and 2 infringed on detainee rights.”447 450. DRC’s 2019 Adelanto report found that female disciplinary 3 4 segregation cells are located in the same physical unit as the administrative 5 segregation cells, and that Adelanto staff placed one detained individual who had 6 been sent from suicide watch to disciplinary segregation because administrative 7 segregation was full.448 451. Defendants are on notice of, but have failed to address, the use of 8 9 punitive conditions in segregation. 452. Far from anomalous, such punitive conditions in both forms of 10 11 segregation exist throughout the Detention Facilities. For example, a Penn State 12 Law School study of Stewart and Irwin449 found that detained immigrants in 13 segregation at Stewart “cannot tell if it is day or night. There is no access to 14 commissary or showers, and limited or prohibited access to phones, medical 15 attention, and recreation.”450 At Irwin, individuals in the “segregated unit spend 16 twenty-three hours in their cells, with limited recreation, shower, and phone access, 17 and no access to the law library or commissary.”451 As at Essex, staff at Stewart 18 shackle detained individuals in segregation whenever they leave their cells and 19 allow them only one hour a day of non-lockdown time, during which detained 20 individuals must choose between recreation or phone use.452 21 22 23 446 Id. at 6. Id. at 3. 448 Disability Rights Cal., supra note 36, at 30. 449 Penn State Law, Imprisoned Justice: Inside Two Georgia Immigrant Detention Centers, at 36 (May 2017) https://projectsouth.org/wpcontent/uploads/2017/06/Imprisoned_Justice_Report-1.pdf. 450 Id. at 36. 451 Id. at 49. 452 Id. at 36–37. - 136 CASE NO. ______________ COMPLAINT 447 24 25 26 27 28 Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 147 of 210 Page ID #:147 453. Similarly, OIG’s 2017 unannounced inspection report of Theo Lacy in 1 2 California documented several violations of ICE detention standards for 3 disciplinary segregation, including that: 4 [D]isciplinary segregation at [Theo Lacy] means a person is isolated for 24 5 hours a day in a cell with no access to visitors, recreation, or group religious 6 services. The detainees are released briefly every other day to shower. In 7 contrast, ICE detention standards require that detainees placed in disciplinary 8 segregation receive a minimum of 1 hour of recreation five times per week, 9 opportunities for general visitation, religious guidance, and limited access to 10 telephones and reading material. However, through observation and 11 interviews, we determined that detainees are not allowed any recreation time, 12 visitation, religious guidance, or telephone access. They were permitted to 13 access one book from the library for the duration of their stay in solitary, 14 lasting up to 30 days.453 15 454. The California Department of Justice’s 2019 report on immigration 16 17 18 19 detention in California also found “multiple facilities that fail to follow national standards that require one hour of recreation five days a week for detainees in disciplinary segregation.”454 455. It is not necessary for ICE to subject detained individuals to such 20 21 22 23 horrors. Indeed, the 2011 Performance Based National Detention Standards (“PBNDS”)—standards developed and approved by ICE—require that facilities provide a host of protections that are not implemented in practice. 24 25 26 27 28 453 Office of Inspector Gen., Office of Homeland Sec., OIG-17-43-MA: Management Alert on Issues Requiring Immediate Action at the Theo Lacy Facility in Orange, California (2017), https://www.oig.dhs.gov/sites/default/files/assets/2017/OIG-mga-030617.pdf. 454 Becerra, supra note 19, at 123. COMPLAINT - 137 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 148 of 210 Page ID #:148 456. Moreover, Defendants can proffer no legitimate rationale for imposing 1 2 conditions in segregation that so closely mirror the conditions of segregation in 3 prison. Defendants’ failure in this regard reflects their systemic overreliance on 4 punitive models to effectuate civil detention. Yet, as explained above, the Fifth 5 Amendment prohibits imposition of such punitive conditions in civil detention.455 6 Defendants Subject Plaintiffs to a Substantial Risk of Serious Harm Through Their Failure to Monitor and Prevent Needless and Arbitrary Segregation. 7 8 9 10 457. Defendants’ failure to monitor and oversee segregation practices in Detention Facilities results in a serious risk of substantial harm to members of the Segregation Subclass. 11 12 13 14 15 16 17 18 19 458. Confining a person to a cell alone for 22 or more hours a day has an extremely negative effect on psychological health. Segregation places those with preexisting medical or mental health conditions at elevated risk for exacerbating those conditions and those without conditions at elevated risk for developing them.456 Psychological effects of the isolation brought about by segregation include anxiety, depression, insomnia, confusion, withdrawal, emotional flatness, cognitive dysfunction, hallucinations, paranoia, and suicidality.457 Approximately fifty percent of all prison suicides happen among the two to eight percent of incarcerated individuals held in solitary confinement.458 According to a 2014 report, detained 20 21 455 Jones, 393 F.3d at 933. Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J.L. & Pol’y 325, 333–38 (2006), https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1362&context=law_j ournal_law_policy. 457 Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49 Crime & Delinq. 124, 130–31, 133–34 (2003), https://www.gwern.net/docs/psychology/2003-haney.pdf. 458 Stuart Grassian & Terry Kupers, The Colorado Study vs. the Reality of Supermax Confinement, 13 Corr. Mental Health Report 1, 11 (2011), https://www.probono.net/prisoners/stopsol456 22 23 24 25 26 27 28 COMPLAINT - 138 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 149 of 210 Page ID #:149 1 individuals held in segregation in New York City jails were nearly seven times 2 more likely to harm themselves than were those in the general population.459 3 4 459. ICE has been on notice for years of the deleterious health effects of segregation. 5 460. For example, the 2011 OIG Mental Health Management Report recited 6 mental health care providers at Detention Facilities as stating that: “[s]egregation is 7 never an appropriate setting for long-term placement of mentally ill detainees”; 8 “[s]egregation often exacerbates mental illness and is counterproductive to the goal 9 of stabilizing a detainee”; “[s]egregation is not a good environment for those with 10 mental health concerns because detainees reported increased levels of depression 11 and anxiety when held in a short stay unit”; “[i]t is not possible to make segregation 12 into a therapeutic setting in which a mentally ill detainee’s condition would 13 improve”; and “[s]pecial management units should only be used at the detainee’s 14 request, or for short periods when these units are the only option.”460 15 16 461. Nevertheless, Defendants have failed to ensure that Detention Facilities do not improperly use segregation or place detained individuals in 17 18 19 20 21 22 23 24 25 26 27 28 reports/416638.The_Colorado_Study_vs_the_Reality_of_Supermax_Confinement; see also Jennifer R. Wynn & Alisa Szatrowski, Hidden Prisons: Twenty-ThreeHour Lockdown Units in New York State Correctional Facilities, 24 Pace L. Rev. 497, 516 (2004), https://digitalcommons.pace.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&articl e=1202&context=plr (“More than half of prison suicides in New York take place in twenty-three-hour lockdown units, although less than 10 percent of the inmate population is housed in them.”). 459 Homer Venters et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, 104 Am. J. Pub. Health 442, 444–46 (2014), https://ajph.aphapublications.org/doi/10.2105/AJPH.2013.301742. 460 Office of Inspector Gen., Dep’t of Homeland Sec., OIG-11-62: Management of Mental Health Cases in Immigration Detention, at 15 (March 2011), https://www.hsdl.org/?abstract&did=6985. COMPLAINT - 139 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 150 of 210 Page ID #:150 1 segregation in lieu of providing them with proper mental health care or 2 accommodations. 462. Indeed, ICE’s own policies authorize the placement in segregation of 3 4 detained individuals with “special vulnerabilities” when “no other viable housing 5 options exist.”461 This includes detained individuals “who are known to be suffering 6 from mental illness or serious medical illness; who have a disability or are elderly, 7 pregnant, or nursing; who would be susceptible to harm in general population due 8 in part to their sexual orientation or gender identity; or who have been victims—in 9 or out of ICE custody—of sexual assault, torture, trafficking, or abuse.”462 10 463. Not surprisingly, many detained individuals with mental health 11 disabilities are placed in segregation, rather than provided with appropriate mental 12 health services. For example, according to data from the International Consortium 13 of Investigative Journalists, nearly one-third of segregation placements consisted of 14 detained individuals who were described as being “mentally ill.”463 464. The “vulnerable” populations ICE identified in its 2013 Segregation 15 16 Directive464 are subjected to an even higher risk of harm. The Division of 17 Immigration Health Services—the agency responsible for detained individuals’ 18 medical care in 2008—estimated that, at that time, 15% of individuals detained by 19 20 21 22 23 24 25 26 27 28 461 U.S. Immigration & Customs Enf’t, Directive No. 11065.1: Review of the Use of Segregation for ICE Detainees, at ¶ 2 (Sept. 4, 2013), https://www.ice.gov/doclib/detention-reform/pdf/segregation_directive.pdf. 462 U.S. Immigration & Customs Enf’t, Directive No. 11065.1: Review of the Use of Segregation for ICE Detainees, at ¶ 3.3 (Sept. 4, 2013), https://www.ice.gov/doclib/detention-reform/pdf/segregation_directive.pdf. 463 Antonio Cucho & Karrie Kehoe, Solitary Voices: How US Immigration Authorities Use Solitary Confinement (May 20, 2019), https://www.icij.org/investigations/solitary-voices/how-us-immigration-authoritiesuse-solitary-confinement/. 464 U.S. Immigration & Customs Enf’t, Directive No. 11065.1: Review of the Use of Segregation for ICE Detainees, supra note 462, at ¶ 2. COMPLAINT - 140 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 151 of 210 Page ID #:151 1 ICE had at least one mental health disability.465 The New York City study found 2 that detained individuals with serious mental health disabilities who were confined 3 to segregation were almost ten times more likely to engage in potentially fatal self- 4 harm.466 One federal court, summarizing the literature in 1995, likened confining 5 inmates with mental health disabilities in isolation to “the mental equivalent of 6 putting an asthmatic in a place with little air.”467 7 465. Ellen Gallagher, former policy advisor at DHS’s Office for Civil 8 Rights and Civil Liberties, raised the alarm about abuse of segregation for people in 9 ICE custody.468 Gallagher found that many people who were listed as having a 10 “serious mental illness” were assigned to extended periods of segregation. ICE’s 11 widespread use of segregation, particularly with regard to individuals with special 12 vulnerabilities, such as those with serious mental health disabilities, violated the 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 465 Dana Priest & Amy Goldstein, Suicides Point to Gaps in Treatment, The Washington Post, May 13, 2008, http://www.washingtonpost.com/wpsrv/nation/specials/immigration/cwc_d3p1.html?noredirect=on. 466 Homer Venters et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, 104 Am. J. Pub. Health 442, 445 (2014); see also Human Rights Watch, Callous and Cruel: Use of Force against Inmates with Mental Disabilities in US Jails and Prisons (May 2015), https://www.hrw.org/report/2015/05/12/callous-andcruel/use-force-against-inmates-mental-disabilities-us-jails-and (Finding that isolation may worsen and intensify pre-existing mental health related symptoms such as depression, paranoia, psychosis, and anxiety, and can cause severe impairment in isolated individuals’ ability to function). 467 Madrid v. Gomez, 889 F. Supp. 1146, 1265 (N.D. Cal. 1995). 468 Maryam Saleh & Spencer Woodman, A Homeland Security Whistleblower Goes Public About Ice Abuse of Solitary Confinement, The Intercept (May 20, 2019) https://theintercept.com/2019/05/21/ice-solitary-confinementwhistleblower/?utm_source=The+Marshall+Project+Newsletter&utm_campaign=b af0e9f0%E2%80%A6. See also Hannah Rappleye et al., Thousands of immigrants suffer in solitary confinement in U.S. detention centers, NBC News (May 20, 2019) https://www.nbcnews.com/politics/immigration/thousands-immigrants-suffersolitary-confinement-u-s-detention-centers-n1007881. COMPLAINT - 141 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 152 of 210 Page ID #:152 1 agency’s policies and procedures. She found that segregation, meant to be used as a 2 last resort in many cases, was often the first and only option in Detention Facilities. 466. There have been numerous examples of detained individuals with 3 4 physical or mental disabilities that have been put at significant risk of substantial 5 harm by being placed in segregation. For example, in 2017, an individual in the 6 Aurora facility was placed in solitary confinement for almost a month due to 7 frequent seizures.469 According to the detained individual, “They told me it was to 8 monitor my seizures. I felt like they were treating me like an animal by putting me 9 in a room by myself for weeks. They ignored me and treated me horribly.”470 10 467. This person’s experience echoes the experiences of many of the 11 Plaintiffs in this case, who have likewise been subjected to prolonged segregation, 12 notwithstanding having conditions that make such placement dangerous. 468. Plaintiff Jimmy Sudney was placed in segregation for about a week 13 14 after a verbal altercation with officers who were harassing him. He filed a grievance 15 and was placed in segregation about two days after he submitted his complaint. 16 Though Adelanto medical staff knew that Mr. Sudney had mental health disabilities 17 including PTSD, the mental health assessment conducted prior to his placement in 18 isolation was cursory—he was asked only if he would harm or kill himself. There 19 was no other inquiry into his mental health or other possible symptoms of 20 deterioration and exacerbation of symptoms related to his PTSD. The noise in 21 segregation triggered a PTSD flashback in which he relived the earthquake in Haiti 22 where his house collapsed around him. 23 24 25 26 27 28 469 Letter from American Immigration Council & American Immigration Lawyers Association to Thomas Homan, Acting Dir., Immigration & Customs Enf’t, Dep’t of Homeland Sec. et al. (June 4, 2018) at 15, http://www.americanimmigrationcouncil.org/sites/default/files/general_litigation/co mplaint_demands_investigation_into_inadequate_medical_and_mental_health_care _condition_in_immigration_detention_center.pdf. 470 Id. - 142 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 153 of 210 Page ID #:153 1 469. For example, Plaintiff Hamida Ali, who has a mental health disability 2 and a history of suicidal ideation and attempts, was effectively placed in 3 segregation when she was housed alone at Aurora for approximately nine months. 4 During one of the brief periods in which Ms. Ali was not alone in the dorm, the 5 other detained woman with her told security staff that they should not leave Ms. Ali 6 alone because she had a mental health disability. Ms. Ali heard security staff say 7 that it was none of their business. 8 9 470. As a result of her housing placement, Ms. Ali experienced several episodes of extreme psychological distress and suicidal ideation. Despite this, and 10 despite her repeated insistence that her placement in the dorm was the cause, mental 11 health staff took no action, deferring to security staff classification and housing 12 placements. Ms. Ali’s repeated requests to her ICE Deportation Officer to move 13 dorms also went unheeded. Ms. Ali was placed on suicide watch in April 2019 after 14 hearing voices, crying uncontrollably, and wrapping a sweater around her neck. She 15 was placed back in the dorm by herself when she was taken off of suicide watch. 16 The conditions exacerbated her mental health difficulties. 17 471. Plaintiff Marco Montoya Amaya has been living with an untreated 18 likely brain parasite for over a year. This brain parasite, left untreated, can cause 19 severe and life-threatening symptoms, including irreversible cognitive and 20 psychiatric symptoms, some of which Mr. Montoya Amaya already appears to be 21 experiencing. Despite this known diagnosis, and despite his other diagnoses for 22 PTSD and major depressive disorder, Mr. Montoya Amaya was placed in 23 segregation for approximately one week in May 2019 for accidentally eating an 24 extra tray he was given by an officer. He did not understand the officer’s 25 instructions—likely due to his cognitive impairment—that the tray was for other 26 detained individuals who were fasting for Ramadan. He did not receive any 27 opportunity to appeal or challenge his segregation. Further, Mr. Montoya Amaya 28 COMPLAINT - 143 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 154 of 210 Page ID #:154 1 was confused as to whether the segregation was disciplinary, or instead for his 2 health or protection, as he was housed in medical isolation. 3 472. While in segregation, Mr. Montoya Amaya did not receive daily 4 mental health or physical health evaluations, and it appears he instead had a total of 5 only two mental health evaluations. To the extent he received any health evaluation 6 before he entered segregation, that health evaluation was incomplete and incorrect; 7 for example, despite indicating that the health professional had completed a chart 8 review, a note in his medical record related to his segregation falsely indicated that 9 Mr. Montoya Amaya did not have any headaches or dizziness, despite having those 10 symptoms regularly documented in his medical records for over a year. 473. The risk of harm suffered by Plaintiffs and the Class as a result of 11 12 Defendants’ failure to sufficiently monitor and oversee Detention Facilities so as to 13 prevent the Segregation Practices is neither remote nor minimal, but rather 14 substantial and irreparable. Indeed, the tragic—and preventable—deaths of 15 numerous detained individuals subjected to Segregation Practices demonstrate both 16 the gravity and urgency of harm stemming from these practices. For example, in 17 July 2018, Efrain De la Rosa died by suicide at Stewart.471 Despite having 18 schizophrenia, and despite IHSC’s receipt of 12 separate notifications depicting 19 suicidal ideation and psychosis, Mr. De la Rosa was not treated with psychotropic 20 medication; instead, he was remanded to segregation for 23 hours a day for the 21 entire three-week period leading up to his death.472 On the day of his death, 22 23 24 25 26 27 28 471 CoreCivic General Counsel Office of Investigations, Investigation Report Form: Stewart Detention Center – FSC Case # 2018-2505-087-1: Efrain De La Rosa (August 6, 2018). See also Robin Urevich, Newly released documents reveal mounting chaos and abuse at a troubled ICE detention center, Fast Company (Jan. 29, 2019), https://www.fastcompany.com/90298739/newly-released-documentsreveal-mounting-chaos-and-abuse-at-a-troubled-ice-detention-center. 472 Ken Klippenstein, ICE Detainee Deaths Were Preventable: Document, The Young Turks (June 3, 2019), COMPLAINT - 144 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 155 of 210 Page ID #:155 1 detention officers repeatedly failed to perform required thirty-minute checks, and 2 failed to check on Mr. De la Rosa for nearly two hours before finding him 3 unresponsive in his cell.473 The Georgia Bureau of Investigation’s report found a 4 series of mistakes in Mr. De la Rosa’s care, including that he was held in prolonged 5 segregation despite serious mental health disability.474 6 474. Likewise, on October 23, 2013, Tiombe Kimana Carlos died by 7 suicide while detained at York County in Pennsylvania.475 Ms. Carlos was 8 diagnosed with schizophrenia prior to her arrival at the facility.476 Ms. Carlos 9 showed symptoms of an acute mental health condition from the start of her two- 10 and-a-half-year detention at York County.477 In April 2011, a Licensed Professional 11 Counselor documented that Ms. Carlos had a mental health history and took Haldol 12 by injection every two weeks.478 Over the next two and a half years, she was placed 13 on suicide watch five times and attempted suicide once, and held in segregation for 14 at least nine months over 12 separate instances due to “behavioral issues and 15 associated mental health concerns.”479 16 17 475. After an attempted suicide on August 13, 2013, Ms. Carlos remained in segregation.480 The DDR states that Ms. Carlos’ record contains “no 18 19 20 21 22 23 24 25 26 27 28 https://tyt.com/stories/4vZLCHuQrYE4uKagy0oyMA/688s1LbTKvQKNCv2E9bu 7h; Robin Urevich, supra note 471. 473 CoreCivic General Counsel Office of Investigations, supra note 471. See also Robin Urevich, supra note 471. 474 Robin Urevich, supra note 471. 475 Office of Professional Responsibility, Office of Detention Oversight, Detainee Death Review – Tiombe Kimana Carlos, at 1, https://www.ice.gov/doclib/foia/reports/ddr-carlos.pdf. 476 Id. at 5. 477 Id. at 3. 478 Id. 479 Id. at 6, 8–9, 10–11, 23. 480 Id. at 10–12. COMPLAINT - 145 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 156 of 210 Page ID #:156 1 documentation [facility] mental health staff pursued alternative placement with 2 [ICE Enforcement and Removal Operations].”481 476. Two independent experts reviewed Ms. Carlos’ medical records on 3 4 behalf of HRW and found that the substantial amount of time Ms. Carlos was held 5 in segregation was “counter to accepted norms for treating mental illness whereby 6 segregation and use of restraints are temporizing measures for use in emergencies 7 and as a last resort-rather than a routine response.”482 477. Clemente Ntangola Mponda died in September 2013 by apparent 8 9 suicide while at the Houston Contract Detention Center in Texas.483 Mr. Mponda 10 was identified as having significant mental health needs early in his detention, when 11 facility medical staff diagnosed him with “depression or schizophrenia.”484 For 12 eight months of his 15-month detention at the facility, Mr. Mponda was in 13 segregation, including administrative segregation, disciplinary segregation, and 14 three days on suicide watch.485 A doctor interviewed for the DDR “stated he 15 ordinarily does not recommend segregation because it is often a ‘destabilizing 16 environment.’”486 Mr. Mponda attempted suicide twice.487 The DDR found 17 numerous violations of standards for placing someone in segregation and for 18 reviewing whether continued segregation was justified, including failure to 19 medically clear him for segregation and failure to include the input of mental health 20 professionals.488 21 481 22 23 24 25 26 27 28 Id. at 27. Human Rights Watch & CIVIC, supra note 181, at 34. 483 Office of Professional Responsibility, Office of Detention Oversight, Detainee Death Review – Clemente Ntangola Mponda, https://www.ice.gov/doclib/foia/reports/ddr-mponda.pdf. 484 Id. at 4. 485 Id. at 24. 486 Id. at 34. 487 Id. at 5, 6. 488 Id. at 25–30. 482 COMPLAINT - 146 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 157 of 210 Page ID #:157 478. The second time Mr. Mponda attempted suicide, staff placed him in 1 2 segregation upon his return from the hospital and did not create a mental health 3 treatment or management plan for him.489 Two experts reviewing this case on 4 behalf of HRW identified substandard care.490 One expert concluded that this case 5 “might be the poster child for misuse of isolation for mental health patients.” The 6 other noted that “standard psychiatric care is to utilize segregation and restraints as 7 temporizing measures for short-term use and only urgent situations, rather than as a 8 routine means of addressing psychiatric illness,” and that in Mr. Mponda’s case, 9 “the repeated overuse of segregation without considering other options may well 10 have contributed to an unstable individual becoming even more unstable and 11 ultimately contributed to his death.”491 479. Defendants’ failure to monitor and prevent improper and exaggerated 12 13 use of segregation at Detention Facilities also extends to other vulnerable 14 populations, including pregnant women and the elderly. 15 480. Placing pregnant and nursing women in segregation has a host of 16 negative health consequences and is prohibited by the United Nations Rules for the 17 Treatment of Women Prisoners and Non-Custodial Measures for Women 18 Offenders.492 People with physical disabilities are also at heightened risk of harm in 19 489 20 21 22 23 24 25 26 27 28 Id. at 6, 31. Human Rights Watch & CIVIC, supra note 181, at 42. 491 Id. 492 See Hearing on Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences Before the Subcomm. on Constitution, Civil Rights and Human Rights of the S. Comm. on the Judiciary, 112th Cong. (2012) (statement of the Correctional Association of New York), https://archive.org/stream/gov.gpo.fdsys.CHRG-112shrg87630/CHRG112shrg87630_djvu.txt (describing challenges pregnant women in isolation can face in trying to access medical care) (“[I]solation can compromise women’s ability to fulfill their particular needs related to reproductive health care, for instance by impeding pregnant women’s access to critical obstetrical services, preventing them from getting the regular exercise and movement vital for a healthy pregnancy. 490 COMPLAINT - 147 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 158 of 210 Page ID #:158 1 segregation, as they are “often denied access to the very physical and 2 pharmacological therapies that will help them maintain their health or prevent 3 physical deconditioning.”493 4 481. Segregation of elderly individuals increases the risk that they will 5 develop or exacerbate chronic health conditions, as sensory deprivation from 6 prolonged confinement in an empty room can worsen mental health and lead to 7 memory loss; limited space hinders mobility, which is crucial for maintaining 8 health through exercise; and a lack of sunlight can cause vitamin D deficiencies and 9 greater risk of fractured bones.494 Likewise, people with serious and chronic 10 medical conditions may suffer from exacerbations of their symptoms due to the 11 stress, lack of exercise, reduced access to healthcare, and inability of staff to detect 12 and quickly respond to medical emergencies.495 13 14 482. However, despite the well-known harm that segregation wreaks on detained individuals, ICE continues to explicitly allow its contractors to use it 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Similarly, women in isolation may be dissuaded from requesting care related to sensitive gynecological issues because they are required to inform correction officers about details of their medical problem, may have serious difficulty accessing appropriate medical staff when they do reach out, may be shackled during gynecological appointments that do occur, and will often interact with medical providers in full view of correction officers and/or receive superficial evaluations through closed cell doors.”). 493 Am. Civil Liberties Union, Caged In: Solitary Confinement’s Devastating Harm on Prisoners with Physical Disabilities, at 27 (Jan. 2017), https://www.aclu.org/sites/default/files/field_document/010916-aclusolitarydisabilityreport-single.pdf. 494 Brie Williams, Older Prisoners and the Physical Health Effects of Solitary Confinement, 106 Am. J. Pub. Health 2126 (2016), https://escholarship.org/uc/item/64n248wp. 495 Am. Civil Liberties Union, Caged In: Solitary Confinement’s Devastating Harm on Prisoners with Physical Disabilities, at 24–32 (Jan. 2017), https://www.aclu.org/sites/default/files/field_document/010916-aclusolitarydisabilityreport-single.pdf. COMPLAINT - 148 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 159 of 210 Page ID #:159 1 liberally for its general population and as long as “no other viable housing options 2 exist” for those it deems especially vulnerable.496 483. These risks are not limited to those who currently have special 3 4 vulnerabilities. Indeed, all individuals are at risk for developing mental health 5 conditions when placed in segregation, especially for prolonged periods. The 6 danger is well-known: “severe and prolonged restriction of environmental 7 stimulation in solitary confinement is toxic to brain functioning.”497 The United 8 Nations Special Rapporteur on Torture, citing multiple studies regarding the 9 harmful effects of even short period of isolation, has said that isolation can amount 10 to “torture or cruel, inhuman or degrading treatment,” and that isolation for more 11 than 15 days should be absolutely prohibited.498 12 484. Despite this overwhelming evidence, ICE policy allows extended 13 placement in segregation “when necessary, after engaging in an individualized 14 assessment of the case.”499 A DHS OIG 2016 report recommended that ICE 15 “[e]stablish time limits for holding mentally ill detainees in segregation outside of 16 medical units, and identify recourses for Detention Facilities when segregated 17 18 19 496 20 21 22 23 24 25 26 27 28 U.S. Immigration & Customs Enf’t, Directive No. 11065.1: Review of the Use of Segregation for ICE Detainees, at ¶ 2 (Sept. 4, 2013), https://www.ice.gov/doclib/detention-reform/pdf/segregation_directive.pdf. 497 Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J.L. & Pol’y 325, 349 (2006), https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1362&context=law_j ournal_law_policy. 498 Solitary confinement should be banned in most cases, UN expert says, UN News (October 18, 2011), https://news.un.org/en/story/2011/10/392012-solitaryconfinement-should-be-banned-most-cases-un-expert-says. 499 U.S. Immigration & Customs Enf’t, Directive No. 11065.1: Review of the Use of Segregation for ICE Detainees, at ¶ 7 (Sept. 4, 2013), https://www.ice.gov/doclib/detention-reform/pdf/segregation_directive.pdf. COMPLAINT - 149 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 160 of 210 Page ID #:160 1 detainees are approaching set time limits.”500 However, on information and belief, 2 ICE did not adopt that recommendation. 3 485. Therefore, although those ICE has identified as having “special 4 vulnerabilities” are at greatest risk of harm as a result of segregation, any detained 5 individual is at risk for being sent to segregation for prolonged periods—and then, 6 in turn, being at a heightened risk for developing mental or physical disabilities. 7 8 Defendants Fail to Monitor and Oversee Segregation Practices on a Systemic Scale. 9 486. ICE’s 2013 Segregation Directive established centralized policies and 10 procedures governing placement of detained individuals in segregation.501 These 11 policies ostensibly mandate centralized review of many segregation placements. 12 However, ICE fails to ensure implementation of these policies.502 487. Insufficient though the ICE policies are to protect against a serious risk 13 14 of harm, ICE fails even to follow its own policies. For example, a 2017 DHS OIG 15 report found that ICE Field Offices “did not record and promptly report all 16 instances of segregation to ICE headquarters, nor did their system properly reflect 17 all required reviews of ongoing segregation cases per ICE guidance.”503 Nor does 18 500 19 20 21 22 23 24 25 26 27 28 Office of Inspector Gen., Office of Homeland Sec., OIG-16-113-VR: ICE Still Struggles to Hire and Retain Staff for Mental Health Cases in Immigration Detention, at 6 (July 21, 2016), https://www.oig.dhs.gov/assets/VR/FY16/OIG-16113-VR-Jul16.pdf. 501 U.S. Immigration & Customs Enf’t, Directive No. 11065.1: Review of the Use of Segregation for ICE Detainees, at ¶ 2 (Sept. 4, 2013), https://www.ice.gov/doclib/detention-reform/pdf/segregation_directive.pdf. 502 Office of Inspector Gen., Office of Homeland Sec., OIG-17-119: ICE Field Offices Need to Improve Compliance with Oversight Requirements for Segregation of Detainees with Mental Health Conditions, (Sept. 29, 2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-11/OIG-17-119-Sep17.pdf. 503 Office of Inspector Gen., Office of Homeland Sec., OIG-17-119: ICE Field Offices Need to Improve Compliance with Oversight Requirements for Segregation of Detainees with Mental Health Conditions, at 1 (Sept. 29, 2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-11/OIG-17-119-Sep17.pdf. COMPLAINT - 150 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 161 of 210 Page ID #:161 1 ICE “regularly compare segregation data in the electronic management system with 2 information at Detention Facilities to assess the accuracy and reliability of data in 3 the system.”504 Thirty-nine percent of placements were reported to ICE’s Custody 4 Management Division after the three days mandated by the Segregation 5 Directive.505 OIG’s file reviews found that 74 percent of reviews were either 6 missing or incomplete in ICE’s online case management system (“SMRS”).506 7 Because ICE headquarters uses the SRMS to review detained individuals’ 8 placements in segregation, these failures preclude any centralized review of those 9 placements. The report gives one example of a detained individual who was placed 10 in disciplinary segregation on four separate occasions, none of which was 11 documented in the SRMS.507 12 488. On information and belief, the “Detention Inspection Form 13 Worksheet” (the “Inspection Worksheet”) that is used in connection with many 14 inspections of Detention Facilities includes a section concerning segregation units 15 that omits or gets wrong several parts of the Segregation Directive. Whereas the 16 Directive requires that the ICE Field Office Director be notified whenever a 17 detained individual has been held in segregation continuously for 21 days, or for 14 18 days out of a 21-day- period,508 the Inspection Worksheet requires only that the ICE 19 Field Office Director be notified when a detained individual’s confinement in 20 segregation exceeds 30 days. In addition, the Inspection Worksheet omits any 21 mention of the Directive’s requirement that the Field Office Director be notified 22 within 72 hours when a detained individual has been placed in administrative 23 24 504 25 505 26 27 28 Id. Id. at 5. 506 Id. at 6. 507 Id. at 5. 508 U.S. Immigration & Customs Enf’t, Directive No. 11065.1: Review of the Use of Segregation for ICE Detainees, at ¶ 5.1(1) (Sept. 4, 2013), https://www.ice.gov/doclib/detention-reform/pdf/segregation_directive.pdf. - 151 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 162 of 210 Page ID #:162 1 segregation on the basis of a medical or mental health condition, disability, or other 2 special vulnerability, as well as any mention of the notification requirement any 3 time a detained individual with a mental condition, serious mental health disability, 4 or physical disability is placed in segregation. 489. Predictably, ICE’s insistence on letting its contractors confine detained 5 6 individuals to segregation and lack of interest in monitoring conditions has led to 7 disastrous results systemwide. Rather than providing a therapeutic environment for 8 those most at risk for lasting damage from segregation, contractors use segregation 9 as a panacea for all manner of perceived inconveniences. 490. A June 2019 OIG report summarizing unannounced inspections of 10 11 Adelanto, Essex, Aurora, and LaSalle found that overly restrictive segregation 12 practices were used.509 For example, detained individuals at Adelanto and Essex are 13 placed in disciplinary segregation before a disciplinary hearing finds them guilty of 14 a charged offense. Facility forms also incorrectly state that individuals are in 15 administrative segregation, when they are actually in disciplinary segregation.510 16 491. A May 2019 NBC News report found, after reviewing 8,488 cases, 17 that half of segregation placements were not for disciplinary reasons but instead 18 “involve the mentally ill, the disabled or others who were sent to solitary largely for 19 what ICE described as safety reasons.”511 In those cases, former CRCL policy 20 analyst Ellen Gallagher explained that at facilities, “[s]olitary confinement was 21 being used as the first resort, not the last resort.”512 A third of the segregation 22 placement reviews involved detained individuals who “were determined by ICE to 23 509 24 25 26 27 28 Office of Inspector Gen., Office of Homeland Sec., OIG-19-47, supra note 97. Id. at 5. 511 Hannah Rappleye et al., Thousands of immigrants suffer in solitary confinement in U.S. detention centers, NBC News (May 20, 2019) https://www.nbcnews.com/politics/immigration/thousands-immigrants-suffersolitary-confinement-u-s-detention-centers-n1007881. 512 Id. 510 COMPLAINT - 152 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 163 of 210 Page ID #:163 1 have a mental illness,” and some were placed in disciplinary segregation “for 2 offenses that stem from mental illness, such as acts of self-harm.”513 Some records 3 show individuals with mental health disabilities confined to segregation shuttle 4 “chronically back and forth from the general population to administrative or 5 disciplinary segregation, with periodic, crisis-oriented admissions to psychiatric 6 hospitals punctuating their return to the same disturbing cycle.”514 Records showed 7 that more than 60 detained individuals were confined in segregation “solely because 8 they required a wheelchair or some other aid.”515 Though ICE’s Segregation 9 Directive requires it to document what alternatives to segregation were considered, 10 Ms. Gallagher “often found no evidence that ICE had done so.”516 492. Ms. Gallagher raised these concerns for five years, and circulated 11 12 memos about them within DHS and then to the US Office of Special Counsel, but 13 neither OIG nor CRCL has published any reports addressing the systemic use of 14 either prolonged segregation or segregation of those with special vulnerabilities.517 15 Nor have the abuses abated. 493. Disability Rights California’s March 2019 report found that facility 16 17 staff at Adelanto held detained individuals in segregation on the basis of 18 disability.518 Unit rosters identify “mental illness or medical condition” as the 19 reason for many placements.519 In its investigation, DRC found multiple examples 20 of facility staff knowingly sending detained individuals with mental health 21 disabilities to segregation, only to have those individuals attempt suicide.520 22 23 513 Id. Id. 515 Id. 516 Id. 517 Id. 518 Disability Rights Cal., supra note 36, at 29. 519 Id. at 48. 520 Id. at 8, 27, 32. 514 24 25 26 27 28 COMPLAINT - 153 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 164 of 210 Page ID #:164 494. A 2017 investigation by The Verge of over 300 segregation logs at 1 2 Stewart, Eloy, and Pearsall also found many examples of abuse, including one on 3 June 8, 2016, when facility staff placed a detained individual in segregation for 4 “standing up on his open bay bed and urinating in a cup followed by [the detainee] 5 drinking the same urine.”521 Staff, with ICE’s approval, placed this detained 6 individual in solitary confinement for nearly a month, not for mental health 7 treatment, but to discipline him for drinking his urine.522 Detained individuals at 8 Irwin also report staff regularly using prolonged periods of isolation, strapping 9 those with mental health conditions in straitjackets, and involuntarily confining 10 those with mental health conditions to segregation.523 ICE itself has acknowledged 11 that “[d]ue to housing limitations at various facilities, segregation use for suicide 12 observation is a necessity.”524 13 495. ICE’s own death reviews also demonstrate the complete lack of 14 accountability in its segregation system. Inspectors found failures to monitor 15 individuals in segregation in a number of the publicly available DDRs. 496. Before his death on December 2, 2017, Kamyar Samimi spent the 16 17 entirety of his 16-day detention at Aurora in medical observation and suicide 18 19 521 20 21 22 23 24 25 26 27 28 Spencer Woodman, ICE Detainees are Asking to Be Put in Solitary Confinement for Their Own Safety, The Verge (2017), https://www.theverge.com/2017/3/10/14873244/ice-immigrant-detention-solitarytrump-corecivic-geo. 522 Id. 523 Ctr. for Immigrants’ Rights Clinic, PennState Law, Imprisoned Justice: Inside Two Georgia Immigrant Detention Centers, at 49 (May 2017), https://projectsouth.org/wp-content/uploads/2017/06/Imprisoned_Justice_Report1.pdf. 524 Spencer Woodman, et al., Thousands of Immigrants Suffer in US Solitary Confinement, International Consortium of Investigative Journalists (May 21, 2019), https://www.icij.org/investigations/solitary-voices/thousands-of-immigrants-sufferin-us-solitary-confinement/. COMPLAINT - 154 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 165 of 210 Page ID #:165 1 watch.525 The DDR found that nursing staff failed to conduct a welfare check 2 during the 14 hours he spent on suicide watch.526 Additionally, the facility doctor 3 did not renew his orders for Mr. Samimi’s placement in medical housing, as 4 required by GEO policy.527 497. On March 28, 2017, Osmar Epifanio Gonzalez-Gadba died by suicide 5 6 while detained at Adelanto.528 Though facility staff sent Gonzalez-Gadba to an 7 outside doctor for mental health treatment, staff placed Mr. Gonzalez-Gadba in 8 segregation upon his return to Adelanto.529 Because staff knew of Mr. Gonzalez- 9 Gadba’s diagnosed mental health conditions and repeated medication refusals, they 10 placed him on psychiatric observation status.530 However, staff failed to 11 consistently check on him every 30 minutes as required, including during the period 12 that he hanged himself.531 13 498. Two independent experts who reviewed Mr. Gonzalez-Gadba’s DDR 14 found that facility staff were on notice that he had serious mental health conditions 15 and had stopped taking his medicine, and that he should not have been placed in 16 segregation because of the likelihood of inadequate coping mechanisms due to 17 stress, resulting in personality disturbance or disintegration.532 18 19 20 21 525 Samimi DDR, supra note 220, at 60–62. Id. at 66. 527 Id. 528 Office of Professional Responsibility, Office of Detention Oversight, Detainee Death Review – Osmar Epifanio Gonzalez-Gadba, at 1 https://www.ice.gov/doclib/foia/reports/ddrGonzalez.pdf. 529 Id. at 11. 530 Id. 531 Id. at 11–15. 532 Human Rights Watch, Am. Civil Liberties Union, National Immigrant Justice Center & Detention Watch Network, supra note 155, at 53. 526 22 23 24 25 26 27 28 COMPLAINT - 155 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 166 of 210 Page ID #:166 499. On May 15, 2017, Jean Carlos Alfonso Jimenez-Joseph died by 1 2 suicide while in solitary confinement at Stewart.533 The Georgia Bureau of 3 Investigation reviewed his death and found that Mr. Jimenez-Joseph had been 4 prescribed medication at a mental health facility before he was detained by ICE, but 5 Stewart staff did not give him the full dosage.534 Despite knowledge that Mr. 6 Jimenez-Joseph was diagnosed with schizophrenia, staff placed him in segregation 7 as punishment for attempting suicide by jumping from the top tier of his housing 8 unit.535 On the night of his death, Mr. Jimenez was seen jumping rope with his 9 bedsheets and had written “Hallelujah the Grave Cometh” in large dark letters on 10 his cell wall. After 19 days in isolation, he died by suicide.536 500. Despite being identified as a suicide risk, he was never placed on 11 12 suicide watch, nor was he provided the upward adjustment of his anti-psychotic 13 medication he begged for in the days before his death.537 He was also placed in a 14 cell that contained a known suicide hazard, a ceiling sprinkler head, upon which he 15 affixed his makeshift noose.538 501. In sum, evidence from facilities across the country makes clear that 16 17 segregation is overused, misused, and not properly tracked or reported, leaving 18 detained individuals who may be subjected to the practice at substantial risk of 19 harm. Despite extensive documentation of these problems, ICE has taken no 20 effective steps to prevent these abuses. 21 22 533 23 534 24 25 26 27 28 Id. Id. at 40. See also Robin Urevich, Private prison giant under fire for pressuring Georgia to keep immigrant detainee’s death report sealed, FAST COMPANY (Dec. 10, 2018) https://www.fastcompany.com/90279208/private-prison-giant-under-firefor-pressuring-georgia-to-keep-immigrant-detainees-death-report-sealed. 535 Human Rights Watch, Am. Civil Liberties Union, National Immigrant Justice Center & Detention Watch Network, supra note 155, at 40. 536 Id. at 53. 537 Id. at 40. 538 Id. - 156 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 167 of 210 Page ID #:167 1 VIII. 2 3 4 5 A. Section 504 of the Rehabilitation Act Prohibits Discrimination on the Basis of Disability by Executive Agencies. 502. Plaintiffs Sergio Salazar Artaga, José Baca Hernández, Raul Alcocer 6 7 8 9 10 11 12 Chavez, Jimmy Sudney, Jose Segovia Benitez, Marco Montoya Amaya, Faour Abdallah Fraihat, Ruben Darío Mencías Soto, Aristoteles Sanchez Martinez, Alex Hernandez, Melvin Murillo Hernandez, Luis Manuel Rodriguez Delgadillo, and Hamida Ali (collectively the “Disability Plaintiffs”) and the Disability Subclass challenge ICE’s failure to ensure Detention Facilities comply with the requirements of Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794. 503. Section 504 prohibits discrimination on the basis of disability in 13 14 15 16 17 18 programs or activities conducted by executive agencies of the United States. Defendants DHS and ICE are executive agencies, and the Detention Facilities program they operate, whether directly or through contractual, licensing, or other arrangements, constitutes a covered program or activity conducted by executive agencies. 504. Defendants have an affirmative obligation to operate their Detention 19 20 21 22 23 24 25 26 27 28 As a Result of Defendants’ Failure to Monitor and Oversee DisabilityRelated Practices in Detention Facilities, Plaintiffs with Disabilities and Members of the Disability Subclass Are Subjected to Violations of the Fifth Amendment and Section 504 of the Rehabilitation Act. Facilities program so that it is readily accessible to and usable by individuals with disabilities, does not discriminate on the basis of disability, and is otherwise in compliance with Section 504 and its implementing regulations, 6 C.F.R. § 15.1 et seq. 505. Defendants have failed and continue to fail to comply with this affirmative obligation in the following ways (referred to herein as “the Disability Practices”): (1) failing to ensure that their programs are readily accessible to and usable by detained individuals with disabilities; (2) to the extent structural changes or other measures are necessary to make such facilities readily accessible to and COMPLAINT - 157 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 168 of 210 Page ID #:168 1 usable by detained individuals with disabilities, failing to ensure that such structural 2 changes are made or other measures taken; (3) failing to conduct an adequate self- 3 evaluation or prepare and implement an adequate Transition Plan to bring Detention 4 Facilities into compliance with Section 504; (4) failing to ensure that Detention 5 Facilities maintain and implement adequate screening to identify, track, and 6 accommodate the needs of detained individuals with disabilities; (5) failing to 7 ensure that Detention Facilities do not improperly place persons with disabilities in 8 segregation and administrative segregation in Detention Facilities; (6) failing to 9 ensure that Detention Facilities have an effective system in place to provide 10 detained individuals with disabilities with reasonable accommodations necessary 11 for meaningful access to the benefits available at Detention Facilities, as well as to 12 provide auxiliary aids necessary for detained individuals with sensory impairments 13 to have access to effective communication; (7) making determinations concerning 14 the location of detention facilities that have the purpose or effect of discriminating 15 on the basis of disability; (8) using criteria in the selection of contractors to operate 16 detention facilities that subject members of the Disability Subclass to 17 discrimination on the basis of disability; (9) failing to administer programs and 18 activities in the most integrated setting appropriate to the needs of individuals with 19 disabilities; and (10) using criteria or methods of administration that have the 20 purpose or effect of discriminating on the basis of disability. 21 506. Organizational Plaintiffs ICIJ and Al Otro Lado have had to divert 22 resources, and have had their missions frustrated, as a result of the Disability 23 Practices. 24 507. The policies and practices described herein place members of the 25 Disability Subclass at particular risk of infringement or denial of the rights secured 26 by Section 504. 27 28 COMPLAINT - 158 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 169 of 210 Page ID #:169 Defendants Exercise Centralized Control Regarding Conditions Impacting Persons with Disabilities at Detention Facilities Nationwide. 1 2 3 4 5 6 7 8 508. Defendants have the sole authority to select and contract with the facilities in which Disability Subclass members are detained. Further, as all members of the Disability Subclass are in ICE custody, Defendants maintain centralized control of the standards, policies, practices, and procedures applicable to detained individuals with disabilities, discussed in detail below. Defendants have in place centralized directives regarding program accessibility, reasonable accommodations, and effective communications. 9 10 11 12 13 509. For example, in 2013, DHS issued Directive 065-01, requiring ICE and other parts of DHS to, among other things, conduct a self-evaluation, develop a plan that addresses any barriers identified in the self-evaluation, and document the policies and procedures for providing reasonable accommodations and modifications to persons with disabilities.539 14 15 16 17 18 510. DHS followed up with a 2015 instruction, Instruction #065-01-001, requiring ICE and other DHS components to designate a lead Disability Access Coordinator with “the ability and authority to reach across the Component’s divisions and offices,” and to serve “as the central resource for Component compliance with Section 504.”540 19 20 21 22 23 24 25 26 27 28 539 U.S. Dep’t. of Homeland Sec., Nondiscrimination for Individuals with Disabilities in DHS-Conducted Programs and Activities (Non-Employment) (Sep. 2013), https://www.dhs.gov/sites/default/files/publications/dhs-managementdirective-disability-access_0.pdf. 540 U.S. Dep’t. of Homeland Sec., Instruction on Nondiscrimination for Individuals with Disabilities in DHS-Conducted Programs and Activities (Non-Employment) (March 2015), https://www.dhs.gov/sites/default/files/publications/dhs-instructionnondiscrimination-individuals-disabilities_03-07-15.pdf. COMPLAINT - 159 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 170 of 210 Page ID #:170 511. Defendants also have in place a policy entitled “Assessment and 1 2 Accommodations for Detainees with Disabilities.”541 On information and belief, 3 pursuant to this and other policies, detained individuals with communication and 4 mobility disabilities are subjected to reviews by staff at ICE headquarters, in part to 5 make recommendations on accommodations. 512. Despite the existence of these system-wide directives and policies, 6 7 Defendants have failed to take the affirmative steps necessary to enforce them, to 8 otherwise ensure that Detention Facilities have appropriate systems in place to 9 ensure that detained individuals with disabilities have meaningful access to ICE 10 programs and services, and to ensure that detained individuals with disabilities are 11 not denied necessary accommodations or otherwise subject to the discriminatory 12 Disability Practices described below. 13 14 Defendants Systemically Fail to Ensure Access to ICE Programs and Services for Detained Individuals with Disabilities. 15 513. Defendants have failed to ensure that their Detention Facilities 16 Program is readily accessible to and usable by persons with disabilities (referred to 17 as “Program Access”), including but not limited to failing to engage in alterations 18 to existing facilities, construction of new facilities, redesigning equipment, or 19 reassignment of services to accessible buildings. For example, several Detention 20 Facilities contain architectural barriers and need facilities or program modifications 21 for members of the Disability Subclass to have meaningful access to the benefits of 22 those facilities. Yet Defendants have not adequately evaluated those barriers, much 23 less implemented the changes needed to remedy them. 24 514. Defendants have further failed to conduct an adequate self-evaluation, 25 including opportunities for meaningful input from the disability community in that 26 27 28 541 U.S. Immigration & Customs Enforcement, Enforcement and Removal Operations, Assessment and Accommodations for Detainees with Disabilities (Dec. 2016). - 160 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 171 of 210 Page ID #:171 1 process, despite their own directives and federal regulations requiring such self- 2 evaluation. 3 515. Defendants have also failed to ensure that Detention Facilities make 4 modifications to their policies and practices where needed to avoid discrimination 5 on the basis of disability and denial of access to programs and activities. 6 516. Despite their failure to ensure Program Access, Defendants have 7 nonetheless housed thousands of members of the Disability Subclass in inaccessible 8 facilities. On information and belief, many Detention Facilities lack accessible 9 paths of travel, sufficient accessible restroom and shower facilities, and accessible 10 recreational facilities for detainees with mobility disabilities, among other barriers. 11 Detained individuals with disabilities are denied access to a range of benefits, from 12 access to basic hygiene, recreation and visitation, among others, and face an 13 increased risk of harm, as well as the denial of personal autonomy. 14 517. Examples of architectural barriers and other failures of Program 15 Access at Detention Facilities include a lack of sufficient accessible shower 16 facilities at La Salle, requiring at least one detained individual who uses a 17 wheelchair to rely on the assistance of other detainees to shower; a lack of 18 accessible paths of travel at Stewart, including barriers making it difficult for 19 detained individuals who use wheelchairs to access the medical unit; and 20 overcrowding that blocks accessible paths of travel and provides no access to 21 accessible housing facilities for detained individuals who use wheelchairs at 22 Krome, among many other issues. 23 518. Another example is Florence Correctional Center’s lack of 24 accessibility to persons with mobility impairments like Plaintiff Sergio Salazar 25 Artaga. Because of his cerebral palsy, Mr. Salzar Artaga has difficulty standing, 26 ambulating, and using the right side of his body. The shower to accommodate 27 people with disabilities at Florence has been nonfunctional for the duration of Mr. 28 Salazar Artaga’s time at the facility. As a result, he has been nervous to take a COMPLAINT - 161 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 172 of 210 Page ID #:172 1 shower in the standard showers without slipping, falling, and hurting himself. 2 While he made a request for a shower chair so that he would be less likely to fall, 3 he was in the facility for nearly three months before he received the shower chair. 4 519. Defendants’ failure to ensure access to adequate medical and mental 5 heath care, as alleged earlier in this Complaint, often has the effect of depriving 6 Disability Subclass members of access to Detention Facility programs and services. 7 520. For example, instead of providing Plaintiff Melvin Murillo Hernandez 8 timely consultation with an allergist and ready access to an EpiPen, LaSalle staff 9 isolated him. This, and his repeated, avoidable bouts of anaphylactic shock, deny 10 him access to the programs and activities accessible to other detained individuals. 11 521. As another example, while detained at Adelanto, Plaintiff Luis Manuel 12 Rodriguez Delgadillo has not been provided therapy or all of the psychotropic 13 medication he took prior to detention, causing him to repeatedly have acute mental 14 health episodes that have denied him access to the programs and activities 15 accessible to non-disabled detained individuals. 16 17 Defendants Systemically Fail to Ensure Adequate Screening to Identify, Track, and Accommodate Detained Individuals with Disabilities. 18 522. Defendants’ Detention Facilities across the country fail to adequately 19 identify, track, and provide accommodations for detained individuals with 20 disabilities as required by Section 504. 21 523. Defendants’ inadequate screening procedures, as alleged earlier this 22 Complaint, also result in the failure to identify individuals with disabilities, track 23 their needs, and provide accommodations required by their disabilities. 24 524. Defendants have sole authority to transfer and move detained 25 individuals throughout their network of Detention Facilities. Class members are 26 regularly shuffled from facility to facility with little to no regard for whether they 27 have a disability that requires a particular placement, and Defendants fail to ensure 28 COMPLAINT - 162 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 173 of 210 Page ID #:173 1 that facilities in which Detained individuals with disabilities are housed provide 2 access to the same essential services and programs as in all other facilities. 3 525. Upon transfer, information regarding any prior identification of 4 disability is often not communicated, resulting in inadequate tracking of individuals 5 with disabilities. Further, accommodations that have been approved and provided 6 by Defendants are often discontinued or removed without cause when a person is 7 transferred to a new facility. Individuals with disabilities must restart the process of 8 requesting reasonable accommodations at each new facility, resulting in delay and 9 denial of receiving those accommodations to meaningfully access programs and 10 11 services. 526. The Plaintiffs’ experiences are illustrative of Detention Facilities’ 12 failure to perform adequate screening and tracking of the needs of individuals with 13 disabilities. 14 527. For example, Plaintiff José Baca Hernández is blind and has been 15 detained at Theo Lacy and Adelanto, neither of which conducted an intake that 16 included a discussion of reasonable accommodations. At Adelanto, it took more 17 than one year for an Americans with Disabilities Act (“ADA”) Coordinator to meet 18 with Mr. Baca. 19 528. Plaintiff Alcocer Chavez is Deaf and communicates in ASL, but he 20 was not provided ASL interpretation during medical intake. Accordingly, he was 21 unable to communicate effectively with medical staff, among many other issues. 22 529. When Plaintiff Jimmy Sudney arrived at Adelanto, it took over a week 23 to see a doctor for an intake meeting, and that doctor asked only about his mental 24 health. When he arrived at Eloy, it took almost a month to have an intake meeting. 25 Meanwhile, upon arrival at Eloy, he went without medication that he requires daily 26 to stabilize his medical and mental health needs. 27 28 530. Plaintiff Alex Hernandez’s rotator cuff and inflammation and pain in his back, legs, hip and feet impede his mobility and range of motion. When Mr. COMPLAINT - 163 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 174 of 210 Page ID #:174 1 Hernandez was transferred to Etowah, he was given a bottom bunk profile based on 2 his disability, but he was assigned to a top bunk. He was told that no bottom bunks 3 were available at that time. 531. As a result, for a month and half Mr. Hernandez was required to sleep 4 5 on the top bunk. There was no ladder to get up to the top bunk, and no railing or 6 other device to use for support. Mr. Hernandez relied on assistance from other 7 detained individuals assigned to his cell to lift him so he could get into bed and also 8 help support him as he was getting out of bed. He was fearful of falling or 9 sustaining further injury to his shoulder, back, hip, and legs. 532. Plaintiff Sergio Salazar Artaga’s initial screenings at Florence 10 11 indicated that he had no mental health disability. As a result, he did not timely 12 receive psychotropic medication, and he ended up on suicide watch twice over the 13 next month for banging his head on the wall and auditory and visual hallucinations. 14 533. At Adelanto, Plaintiff Luis Manuel Rodriguez Delgadillo’s intake was 15 deficient, relying on his incomplete self-reporting of his psychotropic medication, 16 declining to coordinate with his prior treating doctor even when provided that 17 doctor’s contact information by his family, and failing to gather records from that 18 treatment. As a result, Mr. Rodriguez Delgadillo has become unstable and has had 19 repeated episodes of acute mental health distress. 534. Further, Disability Rights California’s 2019 report highlighted 20 21 numerous examples of deficiencies in the intake screening process at Adelanto that 22 resulted in discrimination against individuals with disabilities.542 535. For example, Adelanto’s list of recognized disabilities in its screening 23 24 protocol is arbitrary and incomplete.543 Many common disabilities are missing 25 entirely, such as those related to vision, hearing, and communication.544 Physical 26 542 27 543 28 Disability Rights California, supra note 36. Id. at 41. 544 Id. COMPLAINT - 164 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 175 of 210 Page ID #:175 1 disabilities are inappropriately limited to “para/quadriplegia,” “stroke,” 2 “amputation,” and “cardiac condition.”545 There is no screening for housing 3 accommodation needs, such as a placement in a lower bunk or accessible cell for 4 detained individuals with mobility impairments.546 The facility’s screening also 5 lacks a reliable or valid tool to identify detained individuals with intellectual or 6 developmental disabilities.547 536. The DRC Adelanto report further documented the risk and, in some 7 8 instances, actual harm that results from Defendants’ failure to adequately identify 9 and track individuals with disabilities. For example, a deaf asylum seeker at 10 Adelanto was not provided sign language interpretation and had to go months with 11 no way to communicate with staff, including during medical appointments.548 12 Because of this, “[h]e had to point at the area of his body that was hurting and hope 13 medical staff understood.”549 14 537. Harm to people with disabilities also includes members of the 15 Disability Subclass being subjected to punitive and counter-therapeutic responses 16 when they engage in behavior that is a manifestation of their disability. 550 For 17 example, a detained individual at Adelanto reported that he was pepper sprayed 18 after staff saw him attempting suicide.551 19 20 Defendants Systemically Fail to Prevent Improper Use of Segregation for Detained Individuals with Disabilities. 21 538. As alleged earlier in this Complaint, Defendants repeatedly place 22 detained individuals with disabilities in segregation, despite their own experts 23 545 24 25 26 27 28 Id. Id. 547 Id. 548 Id. at 42. 549 Id. 550 Id. at 27. 551 Id. 546 COMPLAINT - 165 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 176 of 210 Page ID #:176 1 having found that segregation is inappropriate and potentially harmful to detained 2 individuals with disabilities, particularly to detained individuals with mental health 3 disabilities.552 4 539. Indeed, Defendants’ Segregation Directive recognizes that segregation 5 of detainees with disabilities and other vulnerable detainees “should be used only as 6 a last resort and when no other viable housing options exist.”553 540. Detainee Death Reviews document improper placement and 7 8 monitoring of individuals with disabilities as a contributing factor to a number of 9 the deaths in Defendants’ custody, including at Houston,554 Hudson County,555 and 10 Farmville,556 among others. 541. Additionally, in a 2017 report, OIG found numerous instances in 11 12 which ICE failed to comply with its duties to oversee and monitor the segregation 13 of detained individuals with mental health conditions.557 14 15 552 16 17 18 19 20 21 22 23 24 25 26 27 28 U.S. Immigration & Customs Enf’t, Directive No. 11065.1: Review of the Use of Segregation for ICE Detainees, at ¶¶ 3.3, 5.2(5) (Sept. 4, 2013), https://www.ice.gov/doclib/detention-reform/pdf/segregation_directive.pdf. 553 Id. at ¶ 2. 554 See, e.g., Office of Professional Responsibility, Office of Detention Oversight, Detainee Death Review – Clemente Ntangola Mponda, https://www.ice.gov/doclib/foia/reports/ddr-mponda.pdf. 555 See, e.g., Office of Professional Responsibility, Office of Detention Oversight, Detainee Death Review – Santo Carela, https://www.ice.gov/doclib/foia/reports/ddr-Carela.pdf. 556 See, e.g., U.S. Dep’t. of Homeland Sec., Report of Investigation: RAMIREZRamirez, Anibal/Unknown/0109 Detainee/Alien – Death (Known Cause – Terminal Illness)/FARMVILLE, PRINCE EDWARD, VA, https://www.documentcloud.org/documents/2695511- Ramirez-RamirezAnibal.html#document/. 557 Office of Inspector Gen., Office of Homeland Sec., OIG-17-119: ICE Field Offices Need to Improve Compliance with Oversight Requirements for Segregation of Detainees with Mental Health Conditions (Sept. 29, 2017), available at https://www.oig.dhs.gov/sites/default/files/assets/2017-11/OIG-17-119-Sep17.pdf. COMPLAINT - 166 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 177 of 210 Page ID #:177 542. Defendants also fail to oversee and monitor detention facilities that 1 2 utilize segregation to house detained individuals with disabilities due to 3 inaccessible facilities or a lack of accommodations or auxiliary aids and services. 4 For example, incident reports obtained and evaluated by The International 5 Consortium of Investigative Journalists depict dozens of cases between 2012 and 6 2017 of detained individuals in segregation because of a disability that required use 7 of an aid, such as a wheelchair, cane, or crutches, or because of a mental health 8 disability.558 543. Plaintiff Jimmy Sudney was never placed in segregation while in 9 10 county jail or state prison, but he has been placed in disciplinary segregation while 11 in ICE custody. Mr. Sudney was placed in disciplinary segregation at Adelanto 12 because he filed a grievance against an officer who was harassing him and her 13 fiancée—another guard—who had joined in that conduct. They had a verbal 14 altercation and Mr. Sudney was put in segregation for one week. There was no 15 hearing before Adelanto put Mr. Sudney in segregation and the mental health 16 clearance was cursory—when Mr. Sudney reported that he would not hurt or kill 17 himself in segregation, they cleared him to be segregated. While he was in 18 segregation, the guards knocked loudly on the door, and the people above him made 19 noise that triggered a PTSD flashback. Mr. Sudney jumped under the bed and 20 relived the earthquake in Haiti with his house coming down over him. 544. Plaintiff Jose Segovia Benitez has been placed in disciplinary 21 22 segregation for three to five days on several occasions. During some of those 23 segregation stays, on information and belief, he often did not receive daily medical 24 25 26 27 28 558 Spencer Woodman, et al., Solitary Voices: Thousands of Immigrants Suffer in Solitary Confinement in ICE Detention, THE INTERCEPT (May 20, 2019), https://theintercept.com/2019/05/21/ice-solitary-confinement-immigrationdetention/. - 167 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 178 of 210 Page ID #:178 1 or mental health check-ins, despite Adelanto’s records documenting his physical 2 and mental health conditions. 3 545. Plaintiff Marco Montoya Amaya not only has PTSD and major 4 depressive disorder, but has also been living with a likely untreated brain parasite 5 for over a year. This brain parasite, left untreated, can cause severe and life- 6 threatening symptoms, including irreversible cognitive and psychiatric symptoms. 7 Mr. Montoya Amaya was placed in disciplinary segregation for approximately one 8 week in May 2019 for accidentally eating an extra tray of food based on his failure 9 to understand the officer’s instructions. While in segregation, Mr. Montoya Amaya 10 did not receive daily mental health or physical health evaluations, instead receiving 11 only two mental health evaluations overall. To the extent he may have received 12 some health evaluation before he entered segregation, that health evaluation was 13 incomplete and incorrect; for example, despite indicating that the health 14 professional had completed a chart review, a note in his medical record regarding 15 segregation falsely indicated that Mr. Montoya Amaya did not have any headaches 16 or dizziness, despite having those symptoms regularly documented throughout his 17 medical records for over a year. 18 546. Plaintiff Faour Abdallah Fraihat has been placed in medical 19 segregation for medical reasons four times while detained at Adelanto, including 20 for around one week each of the two times he returned to Adelanto from the 21 hospital. A doctor would check on him for at most ten minutes per day, and nurses 22 came twice per day to check his vitals and bring him medication. Each of the four 23 times Mr. Fraihat was in medical segregation he was not allowed out of his cell at 24 any time, though he asked to be let out. 25 547. LaSalle staff has confined Plaintiff Melvin Murillo Hernandez to 26 medical segregation since arriving at LaSalle on May 8, 2019, based on his severe 27 allergies. Though he relied on other detained individuals to bring him to facility 28 staff during previous anaphylactic shocks in which he lost consciousness, he is now COMPLAINT - 168 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 179 of 210 Page ID #:179 1 confined alone in a cell 24 hours a day. Facility staff now bring all of his meals, 2 which consist mostly of eggs and rice, to his cell. 3 548. Plaintiff Hamida Ali, who has schizophrenia, was segregated and 4 placed in a dorm by herself for approximately nine months, causing her to 5 experience extreme psychological distress and suicidal ideation. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants Systemically Fail to Provide People with Disabilities with Reasonable Accommodations, Auxiliary Aids, and Effective Communication. 549. Despite the supposed existence of the centralized systems described above, as a matter of practice, Defendants systemically fail to ensure that Detention Facilities provide detained individuals with disabilities with necessary accommodations, including mobility devices or other aids necessary for detained individuals with mobility disabilities to engage in activities of daily living; auxiliary aids, such as video phones, ASL interpretation, or effective means of communication for persons who are deaf or hard of hearing; and materials in Braille, large print, or other alternate formats for persons who are blind or have low vision. As a result, Defendants systemically fail to ensure detained individuals with disabilities have meaningful access to the benefits of Defendants’ Detention Facilities Program. 550. As an initial matter, Defendants do not ensure Detention Facilities provide information during intake about the facility’s reasonable accommodation and modification process and and otherwise fail to make available information regarding Section 504, its implemention regulations, and its applicability to Defendants’ programs or activities in such a manner as is necessary to apprise detained individuals of the protections against discrimination assured them by Section 504 and its implemention regulations. For example, there is often no formal process in place to request, review, or respond to such requests. 27 28 COMPLAINT - 169 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 180 of 210 Page ID #:180 551. Defendants also fail to ensure that, upon intake, Detention Facilities 1 2 provide information to detained indiviudals regarding their rights under 3 Section 504, including ensuring in an accessible format how to file a complaint 4 under Section 504 and ensuring that such information is available in common areas 5 in a manner that is accessible to indiviudals who have disabilities. 552. Further, Defendants fail to ensure that detention staff are trained in 6 7 Section 504 obligations and related interactions with detained individuals with 8 disabilities. For example, in Adelanto the Disability Compliance Manager disclosed 9 he did not have prior disability-related training and received only a four-hour online 10 training to fulfill the role requirement.559 11 553. The result of these failures is a broken system in which disability- 12 based needs are routinely ignored, denying members of the Disability Subclass 13 access to needed services and excluding them from critical benefits of Defendants’ 14 Detention Facilities Program. 554. Defendants fail to ensure that Detention Facilities provide deaf and 15 16 hard of hearing detained individuals with auxiliary aids and services necessary to 17 ensure effective communication. For example, Defendants fail to ensure that 18 qualified interpreters are available for such interactions as medical appointments 19 and disciplinary proceedings. 555. In many Detention Facilities, detained individuals who are deaf or hard 20 21 of hearing must rely on peers, hand guestures, or lip reading to attempt to 22 communication with staff because Defendants fail to ensure they have access to a 23 qualified interpreter. 556. Further, many Detention Facilities lack timely processes to obtain 24 25 devices and services needed to achieve effective communication. The processes to 26 27 28 559 Disability Rights California, supra note 36, at 47. - 170 COMPLAINT CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 181 of 210 Page ID #:181 1 request such devices are also discriminatory in themselves, because individuals are 2 often required to submit a written request that does not come in accessible formats. 3 557. For example, Plaintiff Alcocer Chavez is Deaf and communicates in 4 ASL. He has repeatedly been denied effective communication at Adelanto, which 5 hinders his ability to communicate with ICE officials and medical staff. During Mr. 6 Alcocer Chavez’s time at Adelanto, he has never been provided with an ASL 7 interpreter. Mr. Alcocer Chavez has had multiple interactions with ICE and medical 8 staff without interpretation. There were several occasions during which he 9 communicated with a doctor by writing notes back and forth. Due to his limited 10 English, he did not understand much of the vocabulary the doctor used. 11 Additionally, ICE officials have tried to convince Mr. Alcocer Chavez to sign 12 documents without effectively communicating what the documents say. 13 558. Though Mr. Alcocer Chavez had access to a videophone when he was 14 incarcerated in Riverside, California, he has not had access to a videophone in ICE 15 detention at the Nevada Southern Detention Center or at Adelanto. Mr. Alcocer 16 Chavez has requested a videophone at Adelanto, but a supervisor denied his 17 request; instead, he was given limited access to Skype for short periods of time, and 18 he is no longer allowed to even use Skype. He has also been granted TTY access 19 for short periods of time. Yet the TTY is an antiquated communication system 20 largely replaced in the deaf community by videophone. TTYs requires typing, 21 which is difficult for most deaf people, including Mr. Alcocer Chavez, because of 22 limited reading and writing skills in English. When Mr. Alcocer Chavez uses the 23 TTY, guards take him to the intake area and lock him in a holding tank for hours 24 before and after the call, measures not required of hearing detained individuals who 25 wish to use a conventional telephone. As a result of ICE’s failure to reasonably 26 accommodate Mr. Alcocer Chavez, he has not been able to effectively 27 communicate with his lawyers by phone while in detention. 28 COMPLAINT - 171 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 182 of 210 Page ID #:182 1 2 3 559. Defendants also fail to ensure effective communication for detained individuals with vision disabilities. 560. For example, Plaintiff José Baca Hernández is blind. Neither Theo 4 Lacy, where he had been detained, nor Adelanto, where he is currently detained, 5 provided Mr. Baca a means of reading documents about his immigration case or 6 medical care privately and independently, such as with a screen reader. At both 7 facilities, Mr. Baca has been forced to rely on others—his cell mates, attorneys, 8 and, at times, guards—to read documents for him. When he has needed to submit 9 something in writing, such as a request to meet with an ICE officer, he has had to 10 11 rely on others to write it for him. 561. Additionally, Detention Facilities routinely fail to provide inmates 12 with mobility and other physical disabilities access to mobility devices, auxiliary 13 aids, or other reasonable accommodations for their disability related-needs, and 14 they often lack adequate processes to ensure that such accommodations are 15 provided when needed. 16 562. For example, Plaintiff Faour Abdallah Fraihat has knee and back pain 17 and a disc problem in his lower back that require the use of a wheelchair for 18 mobility; his legs become numb when he tries to walk more than 10 to 15 feet. 19 Though Adelanto provided Mr. Fraihat with a temporary wheelchair when he 20 arrived in December 2016, staff took it away after one month and did not return the 21 wheelchair to him until February 2019, two days after he filed a grievance because 22 he had been making daily requests for months. For the more than one year in 23 between, Mr. Fraihat was unable to get to the yard or to the cafeteria to eat. When 24 officers did not bring him food, he ate whatever he was able to purchase from the 25 commissary. His friends were not allowed to bring food from the cafeteria to him. 26 563. Staff also assigned Mr. Fraihat to the top bunk in his cell, though it is 27 not accessible to him. The few times he made it up into the top bunk, it was very 28 painful for him and he could not get down to use the bathroom. One time, he COMPLAINT - 172 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 183 of 210 Page ID #:183 1 slipped on the floor because he could not climb up. Mr. Fraihat has never met with 2 an ADA Coordinator at Adelanto, and several of his requests for reasonable 3 accommodations have been denied or delayed. 4 564. Plaintiff Aristoteles Sanchez Martinez has an expanding hernia, 5 neuropathy, and a foot injury that has caused a bone spur and bone deterioration. As 6 a result, Mr. Martinez has pain and uses a wheelchair for mobility. When Mr. 7 Sanchez Martinez was transferred to the Stewart facility, he was placed in full 8 restraints and could not use his wheelchair—leaving him no choice but to walk, 9 despite his documented medical conditions that impair his mobility Three days after 10 he arrived at Stewart, he was given a “provisional” wheelchair that was too small 11 and uncomfortable. Over two weeks after arriving at Stewart, he was given a used, 12 heavy wheelchair that strained his hernia every time he pushed it. A month after 13 arriving at Stewart, Mr. Sanchez Martinez was finally given a suitable wheelchair 14 when another detained individual who used a wheelchair left. At Stewart, Mr. 15 Sanchez Martinez also sometimes has difficulty going through doorways without 16 assistance from others. He was never offered a cane or crutches to help him walk 17 shorter distances. There is one accessible shower, but the shower seat appears 18 broken and not properly affixed and Mr. Sanchez Martinez fears using it. Instead, 19 he has to use the wall to try to support himself when he showers. 20 565. When Mr. Sanchez Martinez arrived at Stewart, he was also forced to 21 choose between his hernia belt and his back brace, despite the two accommodations 22 serving different purposes from one another. Mr. Sanchez Martinez unwillingly 23 relinquished his back brace. Despite requiring a cane or crutches to improve 24 circulation throughout his feet, Mr. Sanchez Martinez has not been provided with 25 either to help him move short distances. 26 566. Plaintiff Ruben Darío Mencías Soto has required multiple mobility 27 aids after a fall in the shower while in detention severely reduced his mobility. At 28 one time, Adelanto staff took away his crutches and told him he could have COMPLAINT - 173 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 184 of 210 Page ID #:184 1 crutches or a wheelchair, but not both. At the beginning of June, Adelanto took his 2 wheelchair away, even though it is too painful for him to walk to the doctor or the 3 cafeteria every time he needs to. Thus, for over a month, Mr. Mencías Soto ate only 4 one meal a day at the cafeteria and tried to cobble together enough food from the 5 commissary for the rest of the day. Rather than provide him with a mobility device, 6 staff had suggested Mr. Mencías Soto live in the medical unit, where he will not 7 have access to socialization or recreation activities. Mr. Mencías Soto only recently 8 got his wheelchair back after sustained advocacy by an attorney. 9 567. Plaintiff Jimmy Sudney received reasonable accommodations in prison 10 that are denied in ICE detention. For example, he had a wedge in prison to allow 11 him to sleep with his head up so that his eye would drain, but the Adelanto ADA 12 Coordinator denied his request because ICE has a “different standard.” In prison, 13 Mr. Sudney had special shoes for his flat feet, but Adelanto denied his request 14 because the shoes have laces. In prison, Mr. Sudney had prescription tinted glasses, 15 but ICE would not pay for what the doctor prescribed so he has lower-quality 16 glasses. An officer at Adelanto calls out “blind man walking” when she sees Mr. 17 Sudney walk by with his tinted glasses, and one time, she tried to take them away. 18 Mr. Sudney spoke with the ADA Coordinator about this harassment and he said, 19 “Can’t do nothing about it. They bully you here.” 20 568. Because of the acute pain stemming from his right hip, legs, and feet, 21 Plaintiff Alex Hernandez cannot stay standing for more than 15 to 20 minutes at a 22 time. Mr. Hernandez would benefit from a cane or walking stick. 23 569. Further, Mr. Hernandez requested an additional chair for his 24 designated-accessible cell after experiencing increased pain with prolonged sitting 25 or standing. He was told that the medical unit does not provide special chairs and to 26 instead change positions when he was in pain, despite Mr. Hernandez already 27 having received oral confirmation from Etowah staff that he could receive a 28 medical request pass for the chair. Because of his back and hip pain, it is painful for COMPLAINT - 174 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 185 of 210 Page ID #:185 1 him to sit on a stool because it offers no support. Further, although Mr. Hernandez, 2 was told his cell is accessible, it does not have a handrail by his toilet and it is 3 difficult for him to support himself as he gets up. Mr. Hernandez was not housed in 4 a cell that has a handrail by the toilet to assist with support. 5 570. Similarly, Mr. Hernandez does not have access to a handicapped 6 shower properly equipped with a shower seat. He is terrified of falling and further 7 injuring himself in the shower. 8 9 571. Mr. Hernandez had to wait over a month for a bottom bunk to open up, despite having a medical pass for that bunk approved on December 21, 2018. 10 During the time he was waiting, he was forced to climb to a top bunk without a 11 ladder. He had to use tremendous effort on his right shoulder to climb up and down 12 the top bunk. 13 572. Plaintiff Sergio Salazar Artaga has been delayed and denied reasonable 14 accommodations for his cerebral palsy, a mobility disability that makes it difficult 15 for him to walk and to use the right side of his body. His metal cane was 16 confiscated when he entered Florence, and he did not receive a wooden replacement 17 until a day or two later. Because the accessible shower was broken, Mr. Salzar 18 Artaga also requested a shower chair multiple times to avoid falling. He received it 19 only after he had been at Florence for nearly three months. 20 573. Mr. Salazar Artaga also requested shoes and braces for his legs and 21 knee so that he can walk more stably in the facility. He had two falls inside 22 Florence, only after which he was provided more stable shoes. After receiving his 23 shoes, he still had a third fall on his way to immigration court on April 23, 2019, 24 but he still has not been provided with leg or knee braces. The first medical 25 provider he requested them from at Florence was unfamiliar with these braces, and 26 the second made a request for Mr. Salazar Artaga to receive the braces, provided 27 that they did not interfere with safety or security at the facility. However, when Mr. 28 Salazar Artaga went to an outside clinic for prosthetics and orthotics, he was told COMPLAINT - 175 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 186 of 210 Page ID #:186 1 that he would not receive the braces until ICE authorized payment for them. No 2 such authorization has happened to date, so Mr. Salazar Artaga walks unsteadily 3 without the aid of leg or knee braces, in constant fear that he will fall again. 4 574. Further, Defendants select Detention Facilities that are located in 5 remote, rural areas that do not have access to internal or off-site care providers, 6 with the effect that detained individuals with disabilities do not receive the care and 7 treatment necessary for them to have meaningful access to the privileges and 8 advantages of these Facilities provided to nondisabled detainees. 9 575. Defendants’ practice of detaining people in remotely located facilities 10 also causes a shortage in resources available to accommodate people with 11 disabilities. For example, the area around LaSalle is devoid of Mexican Sign 12 Language and other rarer sign language interpreters, so Defendants cannot 13 accommodate individuals who are deaf or hard of hearing. In addition, a shortage of 14 qualified mental health professionals in these areas leads to mental health 15 conditions going untreated and cognitive disabilities going unaccommodated. 16 576. Many of the Detention Facilities are also not accessible for persons 17 with mobility impairments, and often are not equipped with videophone or video 18 relay technology, further preventing Defendants from providing reasonable 19 accommodations to detained individuals who are deaf or hard of hearing. Similarly, 20 Defendants fail to ensure that Detention Facilities have screen readers and other 21 accommodations to assist those who are blind or have low vision. 22 577. Defendants’ decision to contract with facilities without ensuring they 23 have necessary services available is a significant contributing factor to their 24 inability to provide adequate care and program access for members of the Disability 25 Subclass. 26 578. For example, Plaintiff Raul Alcocer Chavez is Deaf and communicates 27 in ASL, but has never been provided ASL interpretation at Adelanto. When Mr. 28 Alcocer Chavez requested to use a videophone at Adelanto, which would have COMPLAINT - 176 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 187 of 210 Page ID #:187 1 enabled him to call his hearing lawyer with the use of an interpreter, a supervisor 2 denied his request. Additionally, ICE officials have tried to convince Mr. Alcocer 3 Chavez to sign documents without providing effective communication regarding 4 what the documents say. 5 579. As another example, in Folkston, the medical unit that Plaintiff 6 Aristoteles Sanchez Martinez visited twice a day to receive his insulin shots was in 7 a different building. He would either have other detained individuals help him to 8 the medical unit or he would strain his hernia and push himself there in his 9 wheelchair. His wheelchair did not easily fit through the doorways and there were 10 ramps and other walkways that required assistance for him to navigate. At Folkston, 11 whenever he had a legal visit, he had to use a non-accessible van to go to the visit. 12 Lifting himself in and out of the non-accessible van would cause him to strain his 13 hernia and risk falling due to his Charcot’s foot, neuropathy, and other conditions 14 that impact his balance and mobility. 15 16 17 18 19 20 21 22 23 24 25 Defendants Systemically Fail to Ensure Contractors do Not Subject Detained Individuals with Disabilities to Discrimination on the Basis of Their Disability. 580. The criteria used by Defendants to enter into, expand, and renew contracts with contractors do not take into consideration whether the contractors have engaged in disability discrimination or whether they have effective systems in place to ensure that detained individuals with disabilities are afforded rights secured under Section 504. 581. This failure directly conflicts with the Defendants’ Section 504 implementing regulations, which require Defendants to ensure that contract facilities and programs are readily accessible to and usable by detained individuals with disabilities. 6 C.F.R. §§ 15.10, 15.51. 26 27 28 COMPLAINT - 177 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 188 of 210 Page ID #:188 1 582. Many contractors used by Defendants to operate Detention Facilities 2 have a well-documented track record of failing to comply with disability statutes, 3 including Section 504. 4 583. For example, one of Defendant’s largest contractors, CoreCivic, fails 5 to provide assistive devices, such as corrective lenses, to detained individuals with 6 disabilities.560 7 584. Additionally, as set forth above, GEO-operated Adelanto has been the 8 subject of numerous investigations, reports, and complaints documenting disability 9 discrimination.561 585. GEO also operates the Aurora and South Texas Detention Facilities, 10 11 and detained individuals with disabilities have been subjected to documented 12 discrimination in both of those facilities.562 586. Nevertheless, ICE recently expanded its contract with GEO to increase 13 14 the capacity of the Aurora facility,563 and also awarded a direct contract to GEO to 15 16 17 18 19 20 21 22 23 24 25 26 27 28 560 Detainee Allies, Testimony from Migrants and Refugees in the Otay Mesa Detention Center, at 13 (Jan. 2019), http://www.detaineeallies.org/wpcontent/uploads/2019/01/FINAL_Detainee-Allies-2019-0131b.pdf. 561 See, e.g., Disability Rights California, supra note 36. 562 See, e.g., Letter from American Immigration Council & American Immigration Lawyers Association to Thomas Homan, Acting Dir., Immigration & Customs Enf’t, Dep’t of Homeland Sec. et al. (June 4, 2018) at 15, http://www.americanimmigrationcouncil.org/sites/default/files/general_litigation/co mplaint_demands_investigation_into_inadequate_medical_and_mental_health_care _condition_in_immigration_detention_center.pdf (Aurora); Human Rights First, Ailing Justice: Texas (June 2018), https://www.humanrightsfirst.org/sites/default/files/Ailing_Justice_Texas.pdf (South Texas). 563 Extension of Use for Surge Beds at Aurora CDF, Federal Business Opportunities, https://www.fbo.gov/index.php?s=opportunity&mode=form&id=24bf5af8f106d92a 3abc7bc98fb8a51f&tab=core&_cview=0. COMPLAINT - 178 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 189 of 210 Page ID #:189 1 continue operating Mesa Verde in California after the municipality with which ICE 2 originally contracted withdrew from the contract.564 587. Plaintiff Hamida Ali had a GEO-employed security guard inform her 3 4 that she should stop saying that she was suicidal—so Ms. Ali declined to seek 5 medical help at a moment when she was actively expressing suicidal ideation, even 6 though she had a history of suicidal ideation and attempts. 588. Plaintiff Aristoteles Sanchez Martinez has experienced several 7 8 instances where he has been forced by contractors to abandon his accommodations. 9 For example, when he was transferred from Folkston to Stewart, Mr. Sanchez 10 Martinez was placed in full restraints, and staff did not allow him to use his 11 wheelchair. He was forced to walk throughout the entire day of transport in 12 constant fear of falling and suffering from potentially fatal consequences. In 13 addition, upon arriving at Stewart, the medical staff forced him to choose between 14 his back brace and hernia belt. 589. In addition to repeatedly being denied effective communication in the 15 16 form of ASL interpretation and videophone access, Plaintiff Raul Alcocer Chavez 17 has experienced several instances of harassment by staff at Adelanto. Mr. Alcocer 18 Chavez is Deaf and communicates in ASL. Staff at Adelanto mock him for that 19 fact; they respond to his signing with gang signs, and they refuse to write back 20 when he attempts to communicate with them in writing with his limited English. On 21 one occasion, a staff member used his foot to get Mr. Alcocer Chavez’s attention. 590. On information and belief, the criteria used by Defendants to enter 22 23 into, expand, and renew contracts with contractors do not take into consideration 24 whether the contractors have engaged in disability discrimination, or whether they 25 26 27 28 564 Joseph Luiz, Mesa Verde center will stay open with new contract, The Bakersfield Californian, https://www.bakersfield.com/news/mesa-verde-centerwill-stay-open-with-new-contract/article_29aef992-410b-11e9-a913c75ff002d758.html. - 179 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 190 of 210 Page ID #:190 1 have effective systems in place to ensure that detained individuals with disabilities 2 are afforded rights secured under Section 504. 3 591. This failure directly conflicts with Defendants’ Section 504 4 implementing regulations. Those regulations direct Detention Facilities to afford 5 persons with disabilities equal opportunity to participate in or benefit from 6 facilities’ aids, benefits, or services, and to administer programs and activities in the 7 most integrated setting appropriate. 6 C.F.R. § 15.30(b)(1). 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 592. As a result, members of the Disability Subclass have been denied such rights and are at significant risk of being denied those rights in the future. B. The Fifth Amendment Prohibits the Federal Government from Subjecting Members of the Disability Subclass to Conditions That Rise to the Level of Punishment. 593. The Disability Plaintiffs and the Disability Subclass challenge ICE’s failure to ensure that Detention Facilities do not subject civil detainees with disabilities to conditions that rise to the level of punishment. 594. Defendants fail to adequately monitor and oversee disability-related practices in Detention Facilities. 595. As a result, detained individuals with disabilities are subjected to the Disability Practices, which individually and collectively constitute punishment because they are expressly intended to punish, are not reasonably related to a legitimate governmental objective, and/or are excessive in relation to that objective. 596. In addition, due process requires that conditions in civil Detention Facilities may not be the same as or worse than those in a prison. See King v. Cty. of Los Angeles, 885 F.3d 548, 556–57 (9th Cir. 2018). However, as described in detail earlier in this Complaint, Defendants fail to ensure that detained individuals with disabilities are held in conditions that are not the same as or worse than those for persons with disabilities in criminal detention. 28 COMPLAINT - 180 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 191 of 210 Page ID #:191 1 597. For example, Plaintiff Jimmy Sudney received reasonable 2 accommodations in prison that were denied to him in ICE detention. Though Mr. 3 Sudney had a wedge in prison to allow him to sleep with his head up so that his eye 4 would drain, Eloy and Adelanto denied his request, both stating that ICE has a 5 “different standard.” In prison, Mr. Sudney had special shoes for his flat feet, but 6 Adelanto denied his request because the shoes have laces. In prison, Mr. Sudney 7 had prescription tinted glasses, but ICE would not pay for what the doctor 8 prescribed so he has to make do with lower-quality glasses that his family 9 purchased for him. 10 598. As another example, Plaintiff Raul Alcocer Chavez is Deaf and, 11 though he had access to a videophone while he was in Riverside County Jail, he has 12 not had access to a videophone in ICE detention. Mr. Alcocer Chavez has requested 13 a videophone at Adelanto, but a supervisor denied his request, implying that he was 14 a liar and had already used it. He has only been granted occasional Skype calls to 15 his family, and TTY access for short periods of time. Yet TTY is an outdated 16 technology that requires typing, which is difficult for Mr. Alcocer Chavez because 17 he has limited reading and writing skills in English. A videophone would allow him 18 to communicate in his primary language, ASL. Mr. Alcocer Chavez had better 19 communication because of the videophone in the Riverside County Jail. 20 599. Plaintiff José Baca Hernández is blind and, when he was in jail, an 21 ADA Coordinator checked in with him monthly regarding his need for 22 accommodations and other disability-related needs. In ICE detention, neither Theo 23 Lacy nor Adelanto conducted an intake that included a discussion of reasonable 24 accommodations. At Adelanto, it took more than one year from the time he arrived 25 at the facility for an ADA Coordinator to meet with him. 26 27 28 COMPLAINT - 181 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 192 of 210 Page ID #:192 CLASS ALLEGATIONS 1 2 IX. 3 Class 600. All individual Plaintiffs bring this action on their own behalf and, 4 pursuant to Rules 23(a), 23(b)(1), and 23(b)(2) of the Federal Rules of Civil 5 Procedure, on behalf of a class of all people currently detained, or who in the future 6 will be detained, in ICE custody who are now, or will in the future be, subjected to 7 the Challenged Practices as a result of Defendants’ failure to adequately administer, 8 monitor, or oversee conditions at Detention Facilities (the “Class”). 9 601. The Class is so numerous that joinder of all members is impracticable. 10 Recent reports state that the daily population of ICE detainees in Detention 11 Facilities exceeds 50,000, 565 all of whom are at serious risk of substantial harm due 12 to Defendants’ wholly inadequate monitoring and oversight policies and practices. 13 Members of the Class are geographically dispersed at Detention Facilities 14 throughout the country. 15 16 602. There are questions of law and fact common to the members of the Class. Such questions include, but are not limited to: 17 a. Whether, as a result of Defendants’ failure to ensure that 18 Detention Facilities provide minimally adequate health care and 19 other conditions of confinement, members of the Class are 20 subjected to one or more Challenged Practices; 21 b. Whether, as a result of Defendants’ failure to ensure that 22 Detention Facilities provide minimally adequate health care and 23 other conditions of confinement, members of the Class are 24 subjected to punishment in violation of the Due Process Clause 25 of the Fifth Amendment; 26 27 28 565 Isabela Dias, ICE Is Detaining More People Than Ever—and for Longer, Pacific Standard (Aug. 1, 2019), https://psmag.com/news/ice-is-detaining-more-peoplethan-ever-and-for-longer. - 182 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 193 of 210 Page ID #:193 1 c. Whether, as a result of Defendants’ failure to ensure that 2 Detention Facilities provide minimally adequate health care and 3 other conditions of confinement, members of the Class are at 4 substantial risk of serious harm in violation of the Due Process 5 Clause of the Fifth Amendment; 6 d. serious health care and other needs of Class members; and 7 8 e. Detention Facilities. 10 12 13 Whether Defendants have systemically abdicated their constitutional and statutory duty to monitor conditions in the 9 11 Whether Defendants have been deliberately indifferent to the 603. Defendants are expected to raise common defenses to these claims, including denying that their actions violate the law. 604. The claims of the Plaintiffs are typical of those of the Class, as their 14 claims arise from the same policies, practices, omissions, or courses of conduct, and 15 their claims are based on the same theory of law as the Class’s claims. 16 605. Plaintiffs are capable of fairly and adequately protecting the interests 17 of the Class because Plaintiffs do not have any interests antagonistic to the Class. 18 Plaintiffs, as well as the Class members, seek to enjoin the unlawful acts and 19 omissions of Defendants. Finally, Plaintiffs are represented by counsel experienced 20 in civil rights litigation, litigation regarding the rights of detained individuals, and 21 complex class action litigation. 22 606. This action is maintainable as a class action pursuant to Federal Rule 23 of Civil Procedure 23(b)(1) because there are more than 50,000 class members, and 24 the prosecution of separate actions by individuals would create a risk of 25 inconsistent and varying adjudications, which in turn could establish conflicting 26 and incompatible standards of conduct for Defendants. Additionally, the 27 prosecution of separate actions by individual members could result in adjudications 28 COMPLAINT - 183 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 194 of 210 Page ID #:194 1 with respect to individual members that, as a practical matter, would substantially 2 impair the ability of other members to protect their interests. 3 607. This action is also maintainable as a class action pursuant to Federal 4 Rule of Civil Procedure 23(b)(2) because Defendants’ policies, practices, actions, 5 and omissions that form the basis of this Complaint are common to and apply 6 generally to all members of the Class, and the injunctive and declaratory relief 7 sought is appropriate and will apply to all members of the Class. Defendants’ 8 monitoring and oversight practices and policies are centrally promulgated, 9 disseminated, and enforced. The injunctive and declaratory relief sought is 10 11 appropriate and will apply to all members of the Class. X. 12 Segregation Subclass 608. The Segregation Plaintiffs bring this action on their own behalf and, 13 pursuant to Rules 23(a), 23(b)(1), and 23(b)(2) of the Federal Rules of Civil 14 Procedure, on behalf of a subclass (the “Segregation Subclass”) consisting of all 15 people currently detained, or who in the future will be detained, in ICE custody 16 who are now, or will in the future be, subjected to the Segregation Practices as a 17 result of Defendants’ failure to adequately administer, monitor, or oversee 18 conditions at Detention Facilities. 19 609. The Segregation Subclass is so numerous that joinder of all members 20 is impracticable. For example, a 2017 OIG report looked at segregation placements 21 at just seven facilities from October 1, 2015, to June 30, 2016. During that time, 22 there were 713 segregation placements for detained individuals with mental health 23 conditions.566 In addition, members of the Segregation Subclass are geographically 24 dispersed at Detention Facilities throughout the country. 25 26 27 28 566 Office of Inspector Gen., Dep’t of Homeland Sec., OIG-17-119: ICE Field Offices Need to Improve Compliance with Oversight Requirements for Segregation of Detainees with Mental Health Conditions, at 15 (Sep. 29, 2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-11/OIG-17-119-Sep17.pdf. - 184 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 195 of 210 Page ID #:195 1 2 3 610. There are questions of law and fact common to the members of the Segregation Subclass. Such questions include, but are not limited to: a. Whether Defendants violate the Due Process Clause of the Fifth 4 Amendment by failing to ensure that placement of detained 5 individuals in administrative and disciplinary segregation at 6 Detention Facilities is consistent with constitutional 7 requirements; 8 b. Whether Defendants have been deliberately indifferent to the Subclass members’ serious risk of substantial injury from the 9 10 debilitating isolation and inhumane conditions to which they are 11 subjected; and 12 c. Whether the Segregation Practices constitute punishment in 13 violation of the Due Process Clause of the Fifth Amendment. 14 611. Defendants are expected to raise common defenses to these claims, 15 including denying that their actions violated the law. 16 612. The claims of the Segregation Plaintiffs are typical of those of the 17 Segregation Subclass, as their claims arise from the same policies, practices, or 18 courses of conduct, and their claims are based on the same theory of law as the 19 Segregation Subclass’s claims. 20 613. The Segregation Plaintiffs are capable of fairly and adequately 21 protecting the interests of the Segregation Subclass because these Plaintiffs do not 22 have any interests antagonistic to the Subclass. The Segregation Plaintiffs, as well 23 as the Segregation Class members, seek to enjoin the unlawful acts and omissions 24 of Defendants. Finally, the Segregation Plaintiffs are represented by counsel 25 experienced in civil rights litigation, litigation regarding the rights of detained 26 individuals, and complex class action litigation. 27 28 614. This action is maintainable as a class action pursuant to Federal Rule of Civil Procedure 23(b)(1) because the Segregation Subclass exceeds 1,000 COMPLAINT - 185 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 196 of 210 Page ID #:196 1 members, and the prosecution of separate actions by individuals would create a risk 2 of inconsistent and varying adjudications, which in turn could establish 3 incompatible standards of conduct for Defendants. Additionally, the prosecution of 4 separate actions by individual members could result in adjudications with respect to 5 individual members that, as a practical matter, would substantially impair the ability 6 of other members to protect their interests. 615. This action is also maintainable as a class action pursuant to Federal 7 8 Rule of Civil Procedure 23(b)(2) because Defendants’ monitoring and oversight 9 policies and practices regarding segregation are common to and apply generally to 10 all members of the Segregation Subclass, and the injunctive and declaratory relief 11 sought is appropriate and will apply to all members of the Segregation Subclass. 12 Defendants’ monitoring and oversight practices and policies regarding segregation 13 are centrally promulgated, disseminated, and enforced. The injunctive and 14 declaratory relief sought is appropriate and will apply to all members of the 15 Segregation Subclass. 16 XI. 17 Disability Subclass 616. The Disability Plaintiffs bring this action on their own behalf and, 18 pursuant to Rules 23(a), 23(b)(1), and 23(b)(2) of the Federal Rules of Civil 19 Procedure, on behalf of a subclass (the “Disability Subclass”) consisting of all 20 qualified individuals with a disability, as that term is defined in 29 U.S.C. § 705(9), 21 who are now, or will in the future be, subjected to the Disability Practices as a 22 result of Defendants’ failure to adequately administer, monitor, and oversee 23 conditions at Detention Facilities. 24 617. The Disability Subclass is so numerous that joinder of all members is 25 impracticable. For example, according to a 2008 Washington Post report, internal 26 ICE memos estimate that about 15% of the detained population (which would be in 27 excess of 8,000 detained individuals with today’s detention population) have 28 COMPLAINT - 186 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 197 of 210 Page ID #:197 1 mental health disabilities.567 The total number of detained individuals with any 2 disability exceeds this number. In addition, the Disability Subclass is 3 geographically dispersed at Detention Facilities throughout the country. 618. There are questions of law and fact common to the members of the 4 5 Disability Subclass. Such questions include, but are not limited to: a. 6 Whether Defendants’ failure to ensure that Detention Facilities 7 have in place systems that identify detained individuals with 8 disabilities, and provide for reasonable accommodations for 9 detained individuals with disabilities, violates Section 504; b. 10 Whether Defendants’ failure to ensure that Detention Facilities 11 have in place systems to provide auxiliary aids and services to 12 ensure effective communications with detained individuals with 13 disabilities violates Section 504; c. 14 Whether Defendants’ failure to ensure that Detention Facilities 15 do not use segregation in lieu of proper mental health treatment 16 violates Section 504; d. 17 Whether the discriminatory effect on detained individuals with 18 disabilities of Defendants’ selection of Detention Facilities and 19 contractors violates Section 504; and e. 20 Whether the Disability Practices constitute punishment in 21 violation of the Due Process Clause of the Fifth Amendment. 22 619. Defendants are expected to raise common defenses to these claims, 23 including denying that their actions violated the law. 24 25 26 27 28 567567 Dana Priest et al., Suicides Point to Gaps in Treatment: Errors in Psychiatric Diagnoses and Drugs Plague Strained Immigration System, Wash. Post (May 13, 2008), https://www.washingtonpost.com/wpsrv/nation/specials/immigration/cwc_d3p1.html?noredirect=on. - 187 CASE NO. ______________ COMPLAINT Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 198 of 210 Page ID #:198 1 620. The claims of the Disability Plaintiffs are typical of those of the 2 Disability Subclass, as their claims arise from the same policies, practices, or 3 courses of conduct, and their claims are based on the same theory of law as the 4 Disability Subclass’s claims. 5 621. Plaintiffs are capable of fairly and adequately protecting the interests 6 of the Disability Subclass because the Disability Plaintiffs do not have any interests 7 antagonistic to the class. The Disability Plaintiffs, as well as the Disability Subclass 8 members, seek to enjoin the unlawful acts and omissions of Defendants. Finally, 9 the Disability Plaintiffs are represented by counsel experienced in civil rights 10 litigation, litigation regarding the rights of detained individuals, and complex class 11 action litigation. 12 622. This action is maintainable as a class action pursuant to Federal Rule 13 of Civil Procedure 23(b)(1) because the Disability Subclass exceeds 8,000 14 members, and the prosecution of separate actions by individuals would create a risk 15 of inconsistent and varying adjudications, which in turn could establish 16 incompatible standards of conduct for Defendants. Additionally, the prosecution of 17 separate actions by individual members could result in adjudications with respect to 18 individual members that, as a practical matter, would substantially impair the ability 19 of other members to protect their interests. 20 623. This action is also maintainable as a class action pursuant to Federal 21 Rule of Civil Procedure 23(b)(2) because Defendants’ monitoring and oversight 22 policies and practices relevant to detained individuals with disabilities are common 23 to and apply generally to all members of the Disability Subclass, and the injunctive 24 and declaratory relief sought is appropriate and will apply to all members of the 25 Disability Subclass. Defendants’ disability policies are centrally promulgated, 26 disseminated, and enforced. The injunctive and declaratory relief sought is 27 appropriate and will apply to all members of the Disability Subclass. 28 COMPLAINT - 188 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 199 of 210 Page ID #:199 CLAIMS FOR RELIEF 1 2 FIRST CLAIM FOR RELIEF 3 4 XII. 5 Violation of the Due Process Clause of the Fifth Amendment: Failing to Monitor and Prevent the Challenged Practices (All Plaintiffs and the Class Against All Defendants). 6 624. Plaintiffs reallege and incorporate the allegations set forth in the 7 8 9 preceding paragraphs as though fully set forth herein. 625. By their policies, omissions, and practices described herein, Defendants fail to adequately monitor, oversee, and administer Detention Facilities, 10 and as a result, Plaintiffs and the Class are subjected to the Challenged Practices. 11 626. The Challenged Practices, alone or in combination, constitute 12 punishment and subject Individual Plaintiffs and the Class to a significant risk of 13 serious harm. 14 15 16 627. As a result of the Challenged Practices, the Organizational Plaintiffs have had to divert resources, and have had their missions frustrated. 628. Defendants have a nondelegable duty to ensure that the conditions of 17 confinement in the facilities operated by ICE’s employees and contractors are 18 constitutionally adequate. 19 629. These policies, omissions, and practices have been and continue to be 20 implemented by Defendants and their agents, officials, employees, and all persons 21 acting in concert with them, in their official capacities, and are the proximate cause 22 of the Plaintiffs’ and the Class’s ongoing deprivation of rights secured by the 23 United States Constitution under the Fifth Amendment. 24 630. Defendants have been and are aware of all the deprivations 25 complained of herein and have condoned or been deliberately indifferent to such 26 conduct. 27 28 COMPLAINT - 189 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 200 of 210 Page ID #:200 SECOND CLAIM FOR RELIEF 1 2 3 4 5 6 7 XIII. Violation of the Due Process Clause of the Fifth Amendment: Failing to Monitor and Prevent the Segregation Practices (Organizational Plaintiffs, Segregation Plaintiffs, and the Segregation Subclass Against All Defendants). 631. Plaintiffs reallege and incorporate the allegations set forth in the preceding paragraphs as though fully set forth herein. 632. By their policies, omissions, and practices described herein, 8 Defendants fail to adequately monitor, oversee, and administer segregation at 9 Detention Facilities. As a result, the Segregation Plaintiffs and the Segregation 10 Subclass are subjected to the Segregation Practices, which constitute punishment 11 and subject them to a substantial risk of serious harm and injury, including without 12 limitation harm to their mental health and subjecting them to conditions of extreme 13 social isolation and environmental deprivation. 14 15 633. As a result of the Segregation Practices, the Organizational Plaintiffs have had to divert resources, and have had their missions frustrated. 16 634. These policies, omissions, and practices have been and continue to be 17 implemented by Defendants and their agents, officials, employees, and all persons 18 acting in concert with them, in their official capacities, and are the proximate cause 19 of the Organizational Plaintiffs, Segregation Plaintiffs’ and the Segregation 20 Subclass’s ongoing deprivation of rights secured by the United States Constitution 21 under the Fifth Amendment. 22 635. Defendants have a nondelegable duty to ensure that detained 23 individuals are not subject to segregation practices that constitute punishment, or 24 that create a substantial risk of significant harm and injury from inadequate mental 25 health treatment and conditions of extreme social isolation and environmental 26 deprivation. 27 28 COMPLAINT - 190 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 201 of 210 Page ID #:201 636. Defendants have been and are aware of all the deprivations 1 2 complained of herein and have condoned or been deliberately indifferent to such 3 conduct. THIRD CLAIM FOR RELIEF 4 5 6 7 8 9 10 XIV. Violation of Due Process Clause of the Fifth Amendment: Failing to Monitor and Prevent Disability-Related Practices That Constitute Punishment (Organizational Plaintiffs, Disability Plaintiffs, and Members of the Disability Subclass Against All Defendants). 637. Plaintiffs reallege and incorporate the allegations set forth in the preceding paragraphs as though fully set forth herein. 638. By their policies, omissions, and practices described herein, 11 Defendants fail to adequately monitor, oversee, and administer Detention Facilities. 12 As a result, the Disability Plaintiffs and the Disability Subclass are subject to 13 conditions of confinement that constitute punishment. 14 639. As a result of these policies, omissions, and practices, the 15 Organizational Plaintiffs have had to divert resources, and have had their missions 16 frustrated. 17 640. These policies, omissions, and practices have been and continue to be 18 implemented by Defendants and their agents, officials, employees, and all persons 19 acting in concert with them, in their official capacities, and are the proximate cause 20 of the Organizational Plaintiffs, Disability Plaintiffs’ and the Disability Subclass’s 21 ongoing deprivation of rights secured by the United States Constitution under the 22 Fifth Amendment. 23 641. Defendants have a nondelegable duty to ensure that members of the 24 Disability Subclass are not held in conditions that are punitive in violation of the 25 Due Process Clause. 26 642. The conditions described above for members of the Disability 27 Subclass, alone or in combination, are identical to, similar to, or more restrictive 28 COMPLAINT - 191 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 202 of 210 Page ID #:202 1 than those under which persons accused or convicted of crimes are confined in jails 2 or prisons; are expressly intended to punish civil detainees; are not reasonably 3 related to legitimate governmental objective; and/or are excessive in relation to any 4 proffered objective and more restrictive than necessary. This violates the Due 5 Process Clause. 643. Defendants have been and are aware of all the deprivations 6 7 complained of herein and have condoned or been deliberately indifferent to such 8 conduct. FOURTH CLAIM FOR RELIEF 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 XV. Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (Organizational Plaintiffs, Disability Plaintiffs, and the Disability Subclass Against Defendants DHS, ICE, and IHSC). 644. Plaintiffs reallege and incorporate the allegations set forth in the preceding paragraphs as though fully set forth herein. 645. At all times relevant to this action, Defendants are federal executive agencies within the meaning of the Rehabilitation Act. As such, they are required to comply with the provisions of Section 504. 646. Defendants are legally responsible for all violations of Section 504 committed by their contractors arising from their operation of Detention Facilities. 6 C.F.R. § 15.30(b)(1). 647. Defendants are also directly responsible for their systemic use of deficient monitoring and oversight practices and policies that result in the denial of detained individuals with disabilities’ rights under Section 504. Id. 648. Detention Facilities are required to reasonably accommodate detained individuals with disabilities, to provide them with auxiliary aids and services, and to ensure effective communication, so that those detained individuals can avail themselves of and participate in all programs and activities offered at the Detention Facilities. COMPLAINT - 192 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 203 of 210 Page ID #:203 1 649. As described above, Defendants have failed to ensure that Detention 2 Facilities reasonably accommodate the Disability Plaintiffs and members of the 3 Disability Subclass, provide them with auxiliary aids and services, and provide 4 them with effective communication. 5 650. Detention Facilities must also comply with regulations promulgated by 6 DHS implementing Section 504. See 6 C.F.R. Part 15. Detention Facilities are in 7 violation of many of these regulations, including without limitation by: 8 a. Subclass “the opportunity to participate in or benefit from the 9 aid, benefit, or service.” 6 C.F.R. § 15.30(b)(1)(i). 10 11 Denying the Disability Plaintiffs and members of the Disability b. Affording the Disability Plaintiffs and members of the Disability 12 Subclass with “an opportunity to participate in or benefit from 13 the aid, benefit, or service that is not equal to that afforded 14 others.” 6 C.F.R. § 15.30(b)(1)(ii). 15 c. Providing the Disability Plaintiffs and members of the Disability 16 Subclass “with an aid, benefit, or service that is not as effective 17 in affording equal opportunity to obtain the same result, to gain 18 the same benefit, or to reach the same level of achievement as 19 that provided to others.” 6 C.F.R. § 15.30(b)(1)(iii). 20 d. Providing the Disability Plaintiffs and members of the Disability 21 Subclass with “different or separate aid, benefits or services . . . 22 than is provided to others unless such action is necessary to 23 provide qualified individuals with a disability with aid, benefits 24 or services that are as effective as those provided to others.” 6 25 C.F.R. § 15.30(b)(1)(iv). 26 e. Otherwise denying the Disability Plaintiffs and members of the Disability Subclass “the enjoyment of any right, privilege, 27 28 COMPLAINT - 193 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 204 of 210 Page ID #:204 1 advantage, or opportunity enjoyed by others receiving the aid, 2 benefit, or service.” 6 C.F.R. § 15.30(b)(1)(vi). 3 f. Using “criteria or methods of administration,” “directly or 4 through contractual or other arrangements,” “the purpose or 5 effect of which” is to subject the Disability Plaintiffs and 6 members of the Disability Subclass to “discrimination on the 7 basis of disability.” 6 C.F.R. § 15.30(b)(4), (b)(4)(i). 8 g. Using “criteria or methods of administration,” “directly or through contractual or other arrangements,” “the purpose or 9 10 effect of which” is to “[d]efeat or substantially impair 11 accomplishment of the objectives of a program or activity with 12 respect to” the Disability Plaintiffs and members of the 13 Disability Subclass. 6 C.F.R. § 15.30(b)(4)(ii). 14 h. Making determinations “concerning the site or location” of 15 Detention Facilities, “the purpose or effect of which” as to the 16 Disability Plaintiffs and members of the Disability Subclass is to 17 “[e]xclude individuals with disabilities from, deny them the 18 benefits of, or otherwise subject them to discrimination under 19 any program or activity conducted by the Department.” 6 C.F.R. 20 § 15.30(b)(5)(i). 21 i. Making determinations concerning “the site or location” of 22 Detention Facilities, “the purpose or effect of which” is to 23 “[d]efeat or substantially impair the accomplishment of the 24 objectives of a program or activity” with respect to the 25 Disability Plaintiffs and members of the Disability Subclass. 6 26 C.F.R. § 15.30(b)(5), (b)(5)(ii). 27 j. Using “criteria” “in the selection of procurement contractors” that as to the Disability Plaintiffs and members of the Disability 28 COMPLAINT - 194 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 205 of 210 Page ID #:205 1 Subclass “subject qualified individuals with a disability to 2 discrimination on the basis of disability.” 6 C.F.R. § 15.30(b)(6). 3 k. Failing to “administer programs and activities in the most 4 integrated setting appropriate to the needs of” the Disability 5 Plaintiffs and members of the Disability Subclass. 6 C.F.R. § 6 15.30(d). 7 l. Failing to conduct an adequate self-evaluation to identify 8 modifications to policies and practices at Detention Facilities 9 needed to ensure the programs and services at such facilities are 10 readily accessible to and usable by detained individuals with 11 disabilities, and to provide opportunity for input from the 12 disability community in this process. 6 C.F.R. § 15.10; see 13 generally 6. C.F.R. § 15.1 et seq. 14 m. Failing to conduct adequate transition planning to identify 15 structural or other changes needed to achieve program 16 accessibility at Detention Facilities. 6 C.F.R. § 15.50(d). 17 18 19 651. The Disability Plaintiffs and the Disability Subclass they represent are qualified individuals with disabilities as defined in the Rehabilitation Act. 652. Because of Defendants’ Disability Practices, and systemic policy and 20 practice of failing to adequately monitor, oversee, and administer Detention 21 Facilities, members of the Disability Subclass are subject to violations of Section 22 504, including the Disability Practices, at Detention Facilities, and these violations 23 are continuing and recurring. 24 653. As a result, the Disability Plaintiffs and the members of the Disability 25 Subclass are discriminated against, not reasonably accommodated, do not have 26 equal access to detention center activities, programs, and services for which they 27 are otherwise qualified, and otherwise suffer violations of Section 504 by 28 Defendants. COMPLAINT - 195 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 206 of 210 Page ID #:206 1 2 654. Further, as a result of these policies and practices, the Organizational Plaintiffs have had to divert resources, and have had their missions frustrated. 3 655. Accordingly, Defendants have violated rights secured under the 4 Rehabilitation Act to the Organizational Plaintiffs, the Disability Plaintiffs and the 5 Disability Subclass. PRAYER FOR RELIEF 6 7 8 9 10 11 12 13 14 15 16 17 18 656. Plaintiffs and the Class and Subclasses they represent have no adequate remedy at law to redress the wrongs alleged in this complaint. Plaintiffs and the Class and Subclasses they represent have suffered and will continue to suffer irreparable injury as a result of the unlawful acts, omissions, policies, and practices of defendants, as alleged herein, unless Plaintiffs and the Class and Subclasses they represent are granted the relief they request. The need for relief is critical because the rights at issue are paramount under the United States Constitution and the laws of the United States. 657. WHEREFORE, the Plaintiffs and the Class and Subclasses they represent request that this Court grant them the following relief: a. Federal Rules of Civil Procedure 23(a), 23(b)(1), and 23(b)(2), 19 and appoint the undersigned as Class Counsel; 20 21 b. Declare that the conditions, acts, omissions, policies, and practices described above are in violation of the rights of 22 Plaintiffs and the Class and Subclasses they represent under the 23 Fifth Amendment to the United States Constitution, and the 24 Rehabilitation Act; 25 26 Declare that the suit is maintainable as a class action pursuant to c. Permanently enjoin Defendants, their agents, employees, and officials, from subjecting Plaintiffs and the Class and Subclasses 27 28 COMPLAINT - 196 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 207 of 210 Page ID #:207 1 to the illegal and unconstitutional conditions, acts, omissions, 2 policies, and practices set forth above; 3 d. Order Defendants and their agents, employees, and officials to 4 develop and implement, as soon as practicable, a plan to 5 eliminate the substantial risk of serious harm, discrimination, 6 and statutory violations that Plaintiffs and members of the Class 7 and Subclasses they represent suffer due to the unlawful acts, 8 omissions, conditions and practices described in this Complaint. 9 Defendants’ plan shall include at a minimum taking all 10 necessary steps to ensure the following conditions at 11 immigration Detention Facilities: 12 i. Access: Ensure that Individual Plaintiffs and the Class have timely access to healthcare; 13 ii. 14 Specialty and chronic care: Ensure that Individual 15 Plaintiffs and the Class have timely access to competent 16 specialty care and care for chronic conditions; iii. 17 Training and qualifications: Ensure that Detention Facility 18 staff and medical providers that provide healthcare to 19 Individual Plaintiffs or the Class are adequately qualified 20 and trained to carry out their duties; iv. 21 Emergency care: Ensure timely and competent responses 22 to healthcare emergencies suffered by Individual 23 Plaintiffs or the Class; v. 24 Screening: Ensure reliable screening for medical or 25 mental health conditions of Individual Plaintiffs or the 26 Class that need treatment; vi. 27 Staffing: Ensure staffing that is sufficient to provide Individual Plaintiffs and the Class with timely access to 28 COMPLAINT - 197 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 208 of 210 Page ID #:208 1 qualified and competent clinicians who can provide 2 routine, urgent, emergent, and specialty healthcare; vii. 3 Mental health treatment: Ensure that Individual Plaintiffs 4 and the Class have timely access to necessary treatment 5 for serious mental health conditions, including 6 medication, therapy, inpatient treatment, suicide 7 prevention, and suicide watch; viii. Medical records: Ensure that Defendants properly 8 maintain medical records of Individual Plaintiffs and the 9 10 Class, including by transferring medical records and 11 medications with detained individuals when they are 12 transferred to ensure continuity of care; ix. 13 Remote locations: Ensure that detained individuals are not 14 placed in detention facilities in locations where necessary 15 medical and mental health care are not reasonably and 16 timely available; x. 17 Segregation: Ensure that the Segregation Plaintiffs and 18 the Segregation Subclass are not confined in punitive 19 segregation conditions, including conditions that are 20 similar to, or worse than, those found in jails and prisons, 21 and conditions that put them at substantial risk of serious 22 physical or mental harm; are not placed in segregation 23 because they are part of a vulnerable population; are 24 properly monitored by Defendants for abuses in Detention 25 Facilities’ use of segregation; and are provided procedural 26 safeguards to ensure fairness in segregation 27 determinations; and 28 COMPLAINT - 198 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 209 of 210 Page ID #:209 xi. 1 Disability: Ensure that Detention Facilities have in place 2 systems and practices so that the Disability Plaintiffs and 3 the Disability Subclass are: 4 1. 5 Provided meaningful access to the programs, services, and facilities of Detention Facilities; 6 2. Adequately screened to identify disability-related 7 needs and ensure that such needs are effectively 8 tracked throughout the entire period that members 9 of the Disability Subclass are detained by 10 Defendants; 11 3. Not improperly subjected to segregation; 12 4. Provided access to reasonable accommodations, 13 auxiliary aids, and effective communication for 14 disability-related needs in a timely manner; 15 5. Provided with mobility aids in a timely manner; 16 6. Not subjected to discrimination based on 17 Defendants’ determinations concerning the site or 18 location of Detention Facilities; 19 7. Not subjected to discrimination based on the 20 criteria that Defendants use to select contractors to 21 operate, in whole or in part, Detention Facilities; 22 and 23 8. Not confined in Detention Facilities with punitive 24 conditions of confinement, including conditions 25 that are similar to, or worse than, those for persons 26 with disabilities found in jails and prisons; 27 28 COMPLAINT - 199 - CASE NO. ______________ Case 5:19-cv-01546 Document 1 Filed 08/19/19 Page 210 of 210 Page ID #:210 xii. 1 Award Plaintiffs the costs of this suit, and reasonable attorneys’ fees and litigation expenses; 2 3 xiii. Retain jurisdiction of this case until Defendants have fully 4 complied with the orders of this Court, and there is a 5 reasonable assurance that Defendants will continue to 6 comply in the future absent continuing jurisdiction; and xiv. 7 Award Plaintiffs, the Class, and the Subclasses such other and further relief as the Court deems just and proper. 8 9 10 Dated: August 19, 2019 Respectfully Submitted, /s/ Timothy P. Fox Timothy P. Fox Elizabeth Jordan CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER /s/ William F. Alderman William F. Alderman Mark Mermelstein Jake Routhier ORRICK, HERRINGTON & SUTCLIFFE LLP /s/ Stuart Seaborn Stuart Seaborn Christina Brandt-Young Melissa Riess Monica Porter Jessica Agatstein DISABILITY RIGHTS ADVOCATES /s/ Lisa Graybill Lisa Graybill Elissa Johnson Jared Davidson Jeremy Jong Maia Fleischman SOUTHERN POVERTY LAW CENTER 11 12 13 14 15 16 17 18 19 20 21 Attorneys for Plaintiffs 22 23 24 25 26 27 28 COMPLAINT - 200 - CASE NO. ______________